Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
File: 22 170004 S45 05 TLAB
DECISION AND ORDER
Issuance Date: February 24, 2023
PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): DIANA CERQUEIRA PIRES
Applicant(s): MARIN ZABZUNI
Property Address: 68 HAVERSON BLVD
COA File No.: 22 138788 WET 05 MV (A0258/22EYK)
TLAB Case File No.: 22 170004 S45 05 TLAB
Hearing Date(s): Wednesday, December 07, 2022
Decision Delivered By: TLAB Vice-Chair Ana Bassios
Registered Parties:
Applicant: M. ZABZUNI
Appellant: D. CERQUEIRA PIRES
Appellant's Legal Rep.: S. LAMPERT
Participant: C. M.RAMOS
Expert Witness: S. QI
INTRODUCTION AND CONTEXT
1The purpose of the application is to legalize and maintain a new dwelling with a detached rear garage that is currently under construction.
2A previous Committee of Adjustment (COA) application approved a second storey addition above the existing dwelling, a two-storey rear addition, and a rear detached garage with variances relating to floor space index, length, depth, lot coverage of an ancillary structure and side yard setback of an ancillary structure.
3Because of the destruction of the existing south sidewall, City Inspectors determined that more than 50% of the existing walls had been altered or removed and therefore the construction was no longer considered a “renovation/addition to an existing house” but required a resubmission and new application for variances as a “new house by renovation".
4On June 9, 2022, the Committee of Adjustment of the City of Toronto (COA) refused the requested variances.
REQUESTED VARIANCE(S) TO THE ZONING BY-LAWS:
Section 10.80.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index is 0.8 times the area of the lot (154.5m²). A previous Committee of Adjustment application (A0483/20EYK) approved a floor space index of 0.9 times the area of the lot (174.43 m²). The dwelling will have a floor space index of 0.92 times the area of the lot (178.3m²).
Section 10.5.40.70.(1)(A), By-law 569-2013 The minimum required front yard setback is 2.8 m. The dwelling is located beyond the front lot line on the north side and encroaches into the City ROW.
Section 10.80.40.70.(3)(A), By-law 569-2013 The minimum required side yard setback is 1.2 m. The dwelling is located beyond the north side lot line and onto the City ROW on the front corner and 0.55 m from the south side lot line.
Section 10.5.40.60.(7), By-law 569-2013 Roof eaves may project a maximum of 0.9 m provided that they are no closer than 0.3 m to a lot line. The eaves of the dwelling will project 0.15 m and will be located 0 m from the front lot line.
Section 10.5.40.50.(2), By-law 569-2013 A platform without main walls attached to or within 0.3 m of a building, must comply with the required minimum building setbacks for the zone, 1.2 m. The proposed rear platform will be located 0.32 m from the north side lot line and 0.68 m from the south side lot line.
Section 10.5.40.60.(1)(A)(i), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback 2.5 m if it is no closer to a side lot line than the required side yard setback (1.2 m). The front platform encroaches past the front lot line into the City ROW.
Section 10.5.40.60.(3)(A)(iii), By-law 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6 m. The front stairs will be located on the City ROW.
5I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation of the hearing of their evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
Variance – S. 45(1)
6In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
- maintain the general intent and purpose of the Official Plan;
- maintain the general intent and purpose of the Zoning By-laws;
- are desirable for the appropriate development or use of the land; and
- are minor.
SUMMARY OF EVIDENCE
7A summary of evidence is presented here for the purpose of providing some context for the following sections of this Decision. All of the evidence and testimony in this matter has been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined in the Issues and Analysis section below.
Expert Witness S. Qi
8Mr. Qi provided the following context for the application:
- The subject property is designated Neighbourhoods and zoned RM (f12.0; u2; d0.8) (x252).
- The subject property is a corner lot. The survey shows that the front lot line is impacted by the curvature of the City’s Right of Way (ROW), reducing the front lot as compared to the other lots on Haverson Blvd.
- Following the previous COA approval, during construction, it was discovered that the existing side walls required immediate repairs due to “rotten ground floor bottom plates”. During the repair of these walls, “a windstorm demolished a portion of the south side wall”.
- City Inspectors found that more than 50% of the existing walls had been altered or removed and issued an Order to Comply to submit new drawings for a New House by Renovation.
- The plans are substantially the same plans that were approved by the COA in February 2021.
- One difference between the previously approved plans and the proposal as currently submitted is the south sidewall was shown at a setback of 0.6m whereas due to construction error, the wall for which approval is now sought was reconstructed 0.05m (5cm) closer to the south side lot line.
- The application before the TLAB seeks to approve variances that were an “existing condition” prior to the previous Committee of Adjustment application plus a slight increase in FSI and a slight change in side yard setback.
Participant Ramos
9Mr. Ramos outlined his concerns with the application as follows:
- There has historically been a very narrow side yard separation between his house and the house which existed on the subject property. This caused problems with snow removal and drainage. The proposal will make this worse.
- The location of the entrance to the proposed basement walkout at the front of the property will impact the privacy of his property as it will cause people to walk between the two properties.
- The location of the proposed basement steps will impact the walkway that is used to gain access to Mr. Ramos’s side entrance and backyard.
- The proximity and height of the proposed rear deck and stairs, with a reduced side yard setback, severely impacts the privacy of his backyard and of the rear bedroom of his house.
ISSUES AND ANALYSIS
10The Applicant has justified the proposed variances, in some part, on the basis of what previously existed on the site, and the previous approvals granted by the COA. Mr. Ramos asserted that the proposal should be treated as a wholly new proposal.
11The variances proposed in this application are required largely as a result of the change of status from a “proposed addition to an existing house” to a “new house”. Unlike the previous application which was approved by the COA, this proposal before me cannot rely on the “legally existing” exceptions embedded in the Zoning By-law.
12To be clear, though, the variances that are requested via this application are incremental to the variances that were previously granted by the COA for building length and depth, lot coverage for an ancillary building, and minimum side yard setback for an ancillary building containing a parking space on a corner lot.
13The COA refused the request for the extended set of variances and thus this appeal has been filed.
Provincial Policy
14A replacement dwelling is proposed for one that previously existed on the site. I find in this circumstance that the high-level policies of the Provincial Policy Statement and the Growth Plan are not directly engaged. I shall rely on application of the Official Plan policies and the Zoning By-law provisions to implement provincial policy directions.
The Four Tests
1. The General Intent and Purpose of the Official Plan
15Mr. Qi provided a thorough analysis of the relevant policies of the Official Plan. I consider OP Policy 4.1.5 to warrant further discussion in this Decision as it sets out particular development criteria which are to be applied to new development in Neighbourhoods.
OP Policy 4.1.5
16The over-arching direction of OP Policy 4.1.5 is that development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood.
17Mr. Qi established a geographic neighbourhood (study area) in accordance with the direction of OP Policy 4.1.5. Of the criteria listed in OP Policy 4.1.5, I consider criteria c), f) and g), to merit further analysis in consideration of the particular variances requested.
OP Policy 4.1.5 Development in established Neighbourhoods will respect and reinforce ….
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties.
18Mr. Qi provided a table of variance decisions that identified numerous FSI approvals in the study area with density that is as high or higher than the proposal. From this data, and on the basis of the photographic evidence provided by Mr. Qi of the massing, scale and density of nearby residential properties, I accept Mr. Qi’s conclusion that the proposal satisfies the requirements of OP Policy 4.1.5 c)
OP Policy 4.1.5 Development in established Neighbourhoods will respect and reinforce ….
f) prevailing setbacks of buildings from the street or streets;
19Mr. Qi’s opinion was that the proposed setbacks will be in keeping with the prevailing pattern of setbacks along Haverson Blvd.
20A record of front yard setback variances granted in the past 10 – 15 years have been included in Applicant’s table of approvals (Exhibit 2, Part 4-2). Comparison of those approved variances with the proposal are complicated by a few factors.
21First, the minimum front yard setback requirement is measured from the lot line in anticipation that the building or structure is set back from the lot line. In this case, part of the front of the building, part of a porch and stairs are proposed to extend beyond the lot line and into the City’s ROW. This additional length, beyond the lot line, is not reflected in the quantum of the variance and therefore the data in the table of approved variances is not comparative.
22In addition, the minimum front yard setback requirement is variable from property to property as it is determined in reference to the location of buildings on abutting lots. Thus, the numbers in the comparative table give little insight into the prevailing pattern of setbacks.
23Mr. Qi’s evidence was that the existing front wall is generally in line with the front walls along Haverson Blvd. I accept this assertion, but note that the wording of the policy is premised on a consistent setback from the street and not in terms of alignment of the building walls per se. In this case, the City’s ROW, or the “street” is curved and the setback of the proposal from the ROW (the space between the lot line and the building) is not consistent with the setbacks from the lot lines along Haverson Rd.
24In this particular circumstance, the data available for a quantitative analysis does not form a firm basis for establishing the prevailing pattern of setbacks from the street (or streets).
25Mr. Qi has provided a set of location maps and a photo study that provide helpful visuals of the pattern that is referenced in the policy. From the aerial views provided by the Applicant (Exhibit 2, Tab 4-1), the pattern of front yard setbacks from the traveled/ constructed roadway is apparent. The general intent and purpose of the Official Plan policy is to encourage a consistent streetscape. In this respect, I concur with Mr. Qi that the high level, general intent and purpose of the Official Plan has been met.
OP Policy 4.1.5 Development in established Neighbourhoods will respect and reinforce ….
g) prevailing patterns of rear and side yard setbacks and landscaped open space.
26Mr. Qi referenced the existing setbacks in support of his opinion that the proposed setbacks are in keeping with the prevailing pattern of setbacks along Haverson Blvd and throughout the Study Area. In counterpoint, Mr. Ramos insisted that the proposal be treated as a new house, and that what previously existed on the property does not confer an entitlement to similar setbacks.
27Mr. Ramos is correct. Because of the change in status, the proposal is no longer exempt from the requirements of the Zoning By-law and the variances to be considered in this application are no longer sheltered as legally existing. Nonetheless, at the general policy level, the test of OP Policy 4.1.5 g) for any development is whether the proposal respects the prevailing patterns of side yard setbacks in the neighbourhood.
28As a corner lot, the north side yard flanks Commodore Ave and therefore the setback on that side does not materially influence the pattern of side yard setbacks. The primary concern with respect to side yard setbacks is the setback from the south lot line adjacent to Mr. Ramos’s property.
29From the data provided in the Applicant’s table of approvals, there have been numerous variances granted for side yard setbacks of the same magnitude or smaller than what is proposed for the subject property.
30A view of the property fabric in the neighbourhood shown in the location maps (Exhibit 2, Tab 4-1) supports the conclusion that side yard setbacks on the west side of Haverson Blvd are tight and that the proposed setback on the south side yard is not out of place in the context of the neighbourhood.
31I find that the proposal meets the general intent and purpose of OP Policy 4.1.5 and I accept Mr. Qi’s advice that the proposal meets the general intent and purpose of the Official Plan.
2. The General Intent and Purpose of the Zoning By-law
32The overall intent of the Zoning By-law is to implement the objectives and policies of the Official Plan. To achieve this intent, the Zoning By-law sets out numerical site standards and other performance standards for development.
33It is important to understand that the test for general intent and purpose of the Zoning By-law is distinct from the previous test regarding the Official Plan. The focus of this second test being the intent and purpose of the provisions of the By-law and not general policy direction.
Variance 1: Maximum Floor Space Index
34This variance is requested in conjunction with the variance to allow a reduced side yard setback (from those variances that were previously approved by the COA). According to Mr. Qi’s evidence, the south side wall was mistakenly constructed 5 cm closer to the lot line than had been allowed by the COA. If the side yard setback variance is granted and the south side wall permitted in the location proposed, 3.87m² of additional floor space would be added to the previously approved floor space.
35The general intent and purpose of a limit on floor space in relation to the area of the lot (FSI) is to prevent overdevelopment on a property. The additional floor space proposed is small and will have no discernable impact on the overall massing and scale of the proposed building in relation to the lot (over and above that which was previously approved by the COA).
36Nonetheless, this small amount of additional floor space has been justified for a specific reason and therefore would be permitted only on condition a) that the side yard variance is granted and b) that the proposal is constructed as shown in the submitted site plan.
Variance 2: Minimum Required Front Yard Setback
37The assertion from the Applicant’s representatives is that the TLAB does not regulate encroachments into the City right of way (ROW). Mr. Qi’s witness statement contains the following passage, “Essentially, the proposed front yard setback is 0.0m, in this case, despite the wording of the zoning notice included in Part ”1-4” of the Appellant’s Document Disclosure”.
38Encroachments into the City’s ROW are regulated under the City of Toronto Municipal Code. An encroachment agreement would be required to permit the location of a portion of the proposed porch, the exterior stairs and the northeast corner of the proposed house within the City’s ROW.
Figure 1: Extract from Survey, highlighted to show incursion into City Right of Way. Ex 2, Tab 1-5
39I was advised that City staff did not make any comments to the COA and had not raised the issue of the encroachment, although they had had the opportunity to do so. I was also directed to Exhibit 2, Tab 4-5 that contains correspondence with City staff on the issue of the encroachment.
40The wording of the variance request is as follows:
The dwelling is located beyond the front lot line on the north side and encroaches into the City ROW.
41I understand that the encroachments into the City’s ROW have long existed as part of the demolished house on the property, and that City staff were either not alerted or did not choose to comment on the COA application. Nonetheless, as of the time of the Hearing, the Applicant had not obtained the City’s agreement to encroach into the ROW or any indication that the City intends to allow the encroachment.
42With regard to the encroachment, counsel for the Applicant advised that there is no legal or jurisdictional prohibition preventing the TLAB from approving the variances. I was advised that it would be appropriate to address this issue by exercising the TLAB’s authority under s.45(9) of the Planning Act and imposing a condition of approval requiring that the owner enter into an agreement with the City.
43I have no evidence of the intent of City staff with the authority to authorize or recommend the required encroachment agreement. Mr. Qi advised that the corner of the property is curved to accommodate a sight triangle1. I have no indication that the City will not avail itself of the opportunity to require clear sight lines at the intersection now that the issue of the encroachment has been engaged by this “new house by renovation” proposal.
44In the absence of an agreement or notice of the intentions of City staff responsible for such encroachment agreements, I will not approve the variance required to facilitate a development that encroaches into the ROW.
45While it is not within the TLAB’s authority to approve or deny permission for encroachments into the City’s ROW, the unachieved requirement for the City’s agreement is a significant factor to be taken into account in considering the request for a front yard variance. The design as proposed is premised on the City’s agreement, which had not been obtained. A potentially unviable proposal will not be approved in advance of clarity regarding the ROW encroachment. I find it premature to confer rights to the requested front yard setback variance in this circumstance.
46I understand the Applicant’s argument that the proposal is essentially the same as that which was previously approved by the COA. I can appreciate the frustration of the owners that, under the new requirements, the same proposal was no longer acceptable to the COA as a “new house” when it had been permitted as an “addition”.
47The Zoning By-law makes reasonable accommodations for conditions which do not reflect the provisions of the By-law but have existed for some time. Reasonably, the By-law does not always require that longstanding, non-compliant conditions be removed or remedied in order to construct smaller renovations as this could be an unwarranted hardship to the proponent. A substantial demolition, however, affords the opportunity to redesign and rebuild on the property in a way that reflects current standards. The intent being that if the building is to be substantially demolished then the proponent is not given the grace to retain the non-compliant features.
48The Applicant is afforded the opportunity to request variances in this case, the same as any other proposal, and those variances must be justified in the same way as any other variance request. In this case, I find the evidence in support of the front yard variance, in the context of this second test, to rest heavily on the previous existence of structures in the front yard and the ROW.
49This premise does not answer the essential question: what is the general intent and purpose of the By-law provision that requires a setback from the front lot line and how does the proposal satisfy the TLAB that the intent and purpose are met?
50Mr. Qi’s evidence was that “the intent of the minimum required front yard setback, in part, is to keep a consistent and pleasant streetscape while mitigating any shadowing issues on adjacent dwellings. It also provides for an amenity area, open space and “green area” within the subject property”.
51I accept Mr. Qi’s evidence in this regard, but note that this is not a complete statement of the general intent and purpose of the front yard setback requirement. Setback requirements, in general, and in the case of front yard setbacks, are also intended to keep development behind lot lines so as not to cause impact to the property of others, and in the case of a front yard setback, to prevent obstruction of public property or a right-of-way.
52Mr. Qi further supported the variance on the basis that “The proposed new dwelling will generally maintain the existing setbacks, including the front and side main walls which both provided setbacks in keeping with the prevailing pattern of setbacks along Haverson Boulevard and throughout the Study Area.”
53I acknowledge Mr. Qi’s advice and that alignment of the front walls is part of the general intent and purpose of the front yard setback provision, but this aspect of the intent and purpose is counterweighed by the different site conditions on the subject property as compared to the neighbouring properties, and also by the definition of a front yard setback, which measures the setback from the actual lot line.
54The Applicant’s representatives have done a credible job advocating for the approval of the front yard variance in this case. However, for the reasons outlined above I am not satisfied that the requested variance maintains the general intent and purpose of the Zoning By-law.
Variance 3: Minimum Side Yard Setback
55Mr. Qi noted that the subject property is 6.1m wide and if the minimum side setback requirements of 1.2m were implemented, approximately 40% of the width of the lot would be devoted to the combined side yard setback requirements.
North Side Yard Setback
56The requirement for the north side yard setback variances is triggered by the same condition as that for the front yard setback. (See Figure 1). I have found that the front yard setback does not maintain the general intent and purpose of the Zoning By-law and therefore the portion of the proposal that implicates both the front yard and side yard setback requests is not viable.
57For the same reasons as set out for Variance 2, I am not satisfied that the north side yard setback for the portion of the proposal beyond the required front yard setback (i.e., the part of the proposal that is located beyond the front yard setback and the lot line) maintains the general intent and purpose of the Zoning By-law.
58The variance as requested is not supportable.
South Side Yard Setback
59The location of the south side wall on the subject property has been the source of much conflict between the owner and Mr. Ramos.
60Mr. Qi’s evidence was that the intent of the side yard setback requirement is, in large part, to provide adequate access from the front to the rear of a property, and to allow adequate space on each side of the building for stormwater infiltration and runoff. He said that it also ensures adequate separation between dwellings and helps mitigate any privacy issues from abutting dwellings.
61The proposed south side yard setback is at 0.55m for a portion of the dwelling and then increases gradually along the south wall towards the rear of the building to a maximum of 0.68m (27 inches). The COA previously approved a building length of 20.03m.
62I accept Mr. Qi’s opinion that the south side yard setback maintains the intent of the Zoning By-law with respect to the provision of adequate access and stormwater runoff.
63On the purpose of the setback with respect to privacy, Mr. Qi advised that no new windows are proposed on the south side wall, which would mitigate any privacy concerns. In closing, legal counsel observed that this is a dense urban environment characterized by small side yard setbacks and that a certain amount of privacy and overlook is to be anticipated.
Variance 5: Rear Platform Side Yard Setback
64Mr. Qi asserted that the intent of the platform encroachment performance standard in large part is to maintain a harmonious streetscape without having a platform encroaching too far into the required side yard setbacks. He equated the intent of the platform variance with that of the side yard setback provision, which he specified in this instance as being to provide adequate access from the front to the rear of the property.
65Mr. Qi asserted that the rear platform variance is “directly” related to the side yard setback variance because the rear platform is in line with the side main walls, i.e., the rear deck will match the proposed building envelope in width. He concluded “since the proposed rear porch does not encroach farther into the required side yard setback than the side main walls, it follows that the rear porch will not impede the purpose and intent of the side yard setbacks that are provided”.
66Mr. Qi’s suggestion is that the intention of the By-law is such that if the side wall setback variance is granted, it shelters the rear platform as well. I do not accept this narrowing of the intent and purpose of the provision to encompass primarily the concern with streetscape. The variance for a platform, (which is located in the rear in this case) engages a distinct and different provision in the Zoning By-law. The separate platform provision in its intent and purpose potentially generates greater emphasis on mitigating privacy issues than other setback requirements because the platform is not screened by walls.
67Legal counsel noted that a privacy screen is proposed at the side of the deck.
68A large part of Mr. Ramos’s concern with privacy relates to the deck and the stairs to the deck which provide a direct view into his back yard and to the rear of his home where a bedroom is located. I find that a privacy screen flanking the deck is an insufficient measure to mitigate the privacy concerns and does not fulfil the general intent and purpose of the provision. (See Figure 2).
Figure 2: Exhibit 3. Participant Statement Ramos
69I find that a reduced side yard setback for the rear deck on the south side does not maintain the general intent and purpose of the Zoning By-law with respect to mitigating privacy issues from abutting dwellings.
The variance as requested is not supportable
Variances 4, 6, and 7: Roof Eaves, Front Platform Encroachment and Exterior Stair Encroachment.
70The roof eaves, front platform and exterior stairs are all proposed for the front of the property. As the front yard variance has not been supported, these features are not viable in the location that they have been proposed. For the same reasons set out above regarding the front yard setback and encroachment into the right-of-way, these variances do not maintain the general intent and purpose of the Zoning By-law.
3. Minor
71The test for “minor” focuses on the scale and nature of perceived impact caused by the variances. The courts have established that the test is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.
72Mr. Ramos has asserted that the rear deck as proposed will have significant impact on his property and his family’s privacy. The proposed deck is at a different height than Mr. Ramos’s rear yard and is located deeper into the lot which exposes the rear of Mr. Ramos’s property to a degree of overlook that I find to be undue and adverse.
4. Desirable for the Development of the Land
73At the level of policy and principle, I agree that a replacement house on the subject property is desirable for the development of the land. The outstanding question regarding permission for encroachment into the City’s right-of-way is the primary obstacle to the development as proposed. In addition, the concern for privacy of the abutting neighbour makes the rear deck, as proposed, undesirable.
CONCLUSION
74I have found that the variance for front yard setback does not meet the four tests, and therefore the proposal will require a redesign if it is to be permitted in another form. Many of the variances are linked to the variance for front yard setback and will not be approved for similar reasons.
75In some cases, the TLAB will approve variances as standalones, as approvals which are not dependent on the design and features of a proposal. The front yard variance in this case is, however, fundamental to the design.
76A revised proposal for the subject property will both benefit and be constrained by the previous COA approvals and conditions. Incremental standalone variances in this application will not be supported untethered from the submitted plans and elevations.
77I find that the requested variances, cumulatively, do not meet the four statutory tests.
DECISION AND ORDER
78The Appeal is dismissed. The Committee of Adjustment decision noted above is final and binding, and the file of the Toronto Local Appeal Body is closed.
A. Bassios Panel Member