JRAZ Holdings Inc v. Toronto (City), 2023 ONTLAB 25

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date: 2023-02-24

22 180210 S45 02TLAB

JRAZ Holdings Inc v. Toronto (City), 2023 ONTLAB 25

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): CITY OF TORONTO

Applicant(s): JRAZ HOLDINGS INC.

Property Address: 3920 BLOOR ST. W

COA File No.: 22 134579 WET 02 MV (A0283/EYK)

TLAB Case File No.: 22 180210 S45 02 TLAB

Hearing Date(s): December 13, 2022

Decision Delivered By: TLAB Vice-Chair A. Bassios

Registered Parties and Participants:

Applicant/Owner/Party JRAZ HOLDINGS INC. – C/O J. SCHENK

Party’s Rep DURON – C/O E. ADAMS

Appellant CITY OF TORONTO

Appellant’s Legal Rep CITY OF TORONTO – J. DEXTER

Expert Witness N. GURSOY

INTRODUCTION AND CONTEXT

1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s (COA) approval of an application for variances for the property known as 3920 Bloor St W (subject property).

2The purpose of the application is to construct a new rear yard car port.

3The subject property is located on Bloor St W, a major arterial road, in the former City of Etobicoke.

4It is designated Neighbourhoods in the City Official Plan (OP) and zoned RD (f13.5; a510; d0.45) (x21) under Zoning By-law 569-2013,

REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:

1. Section 10.20.30.40.(1), By-law No. 569-2013 The maximum permitted coverage is 33% of the lot area (145.58 m²). The existing dwelling and new car port will cover 34% of the lot area (151.9 m²).

2. Section 10.5.50.10.(3), By-law No. 569-2013 A minimum of 50% of the rear yard shall be maintained as landscaping (81.49 m²). A total of 9% of the rear yard shall be maintained as landscaping (14.83 m²).

5The City appealed the decision of the COA, on the grounds that the variance for soft landscaping does not satisfy the four tests as set out in s.45(1) of the Planning Act.

6I 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

[7] Provincial Policy – S. 3 A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2020 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’).

[8] Variance – S. 45(1) In 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

9A 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.

10Ms. Adams spoke on behalf of the Applicant.

[11] In her Witness Statement, Ms. Adams advised as follows:

• No neighbour opposed the variance application nor the approval of the variances.
• The Zoning By-law permits 50% of the front yard to be hard landscaping and 50% of the rear yard to be hard landscaping.
• The previous owner chose to locate all of the hardscaping to the rear yard to create a more functional parking access for both the subject property and for the neighbour immediately to the north at 4 Martin Grove Rd.
• The property already exists in this condition, all that the Applicant is asking for is to build a carport to provide shelter from rain or snow on the existing asphalt, making the home more functional for renters.

12I qualified N. Gursoy as an expert in land use planning

[13] Ms. Gursoy provided a history of applications on the subject property:

• In 2011, the COA approved a consent to sever the property
• The retained lot became 3920 Bloor St W, and the conveyed lot became what is now 4 Martin Grove Rd.
• Variances associated with the consent included lot area, front yard setback, side yard setback, driveway width and parking space width.
• There was no variance for rear yard soft yard landscaping and the site plan approved in 2011 shows a generous rear yard soft landscaping.
• In 2013, the COA granted variances for floor space index and flat-roofed dwelling height.
• No variance for rear yard soft landscaping was requested or approved at that time and the site plan continued to show a generous rear yard soft landscaping.
• In 2022, the Owner filed an application to allow the construction of a car port.

14The car port itself does not require any variances, however the property is not in compliance with the Zoning By-law and the variances previously granted.

15The application for variances is required to legalize the existing rear yard soft landscaping and lot coverage in order for the Applicant to obtain a building permit to construct the car port.

ISSUES AND ANALYSIS

16Ms. Adams is not qualified as an expert in land use planning. She is an acquaintance of the owner and was not remunerated for her participation in the matter.

17A hearing before the TLAB is a hearing ‘de novo’ under s. 45(18) of the Planning Act, meaning that the entire application that was before the COA is to be considered anew.

18The burden is on the Applicant to prove its case and to satisfy the TLAB that the application meets the four tests mandated by s.45(1) of the Planning Act.

19For variances to be approved, the TLAB must be satisfied that all four tests are met. Ms. Adams’s evidence in this matter was presented in the form of a critique of the City’s opposition to the variance for rear yard soft landscaping.

VARIANCE FOR COVERAGE

20Section 10.20.30.40.(1) of the Zoning By-law limits coverage of the lot to a maximum of 33% of the lot area, which in the case of the subject property is 145.58m2. A variance has been requested for 34% of the area, (151.9 m²).

21While the requested variance is small, a variance is nonetheless required, and for the variance to be approved, the TLAB must be satisfied that the request meets the four tests.

22For the TLAB to find in favour of the requested variance, the courts have held that a decision must articulate reasons for the approval.

23I have heard no evidence from the Applicant in support of this variance and therefore in the absence of such evidence, I can not make a finding that the requested variance meets the four tests.

24For lack of evidence, I am not able find that the four tests have been met with respect to maximum coverage.

VARIANCE FOR REAR YARD SOFT LANDSCAPING

25The primary challenge of the City relates to the proposed rear yard landscaping variance.

26I heard evidence from both Parties regarding the requested variance for minimum rear yard soft landscaping.

GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLAN (REAR YARD LANDSCAPING)

27Ms. Adams responded to the City’s evidence. She contested the City’s position that the proposed rear yard soft landscaping does not fit the prevailing neighbourhood character.

NEIGHBOURHOOD STUDY AREA

28It was Ms. Adams’s evidence that the subject property is very much in keeping with the neighbourhood character. In support of this opinion, she provided pictures of homes on “Bloor St and within a 30-home radius of the subject property”.

29Ms. Adams contested the City’s Expert Witness, Ms. Gursoy’s, demarcation of the geographic neighbourhood study area on the basis that Ms. Gursoy did not include any of the homes across Bloor St W from the subject property and also did not include the properties across Bloor St W in the “Immediate Context”.

30Ms. Adams emphasized a part of Official Plan Policy 4.1.5 that states lots fronting onto a major street and designated Neighbourhood are to be distinguished from lots in the interior of the block adjacent to that street.

31Ms. Gursoy defined a neighbourhood study area in accordance with the direction of Official Plan Policy 4.1.5 that the geographic neighbourhood for the purposes of the Policy be delineated by considering the context within the Neighbourhood in proximity to a proposed development, including: zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and human-made dividing features.

32In her Reply to Responding Witness Statement, Ms. Gursoy clarified the full wording and intent of the part in Official Plan Policy 4.1.5 that directs that lots fronting onto a major street are to be distinguished from lots in the interior of the block adjacent to that street.

33According to Ms. Gursoy, Policy 4.1.5 states that major streets are to be distinguished from lots in the interior of the block adjacent to that street in order to recognize the potential for a more intense form of development along major streets.

34The text of the Official Plan is as follows:

“Lots fronting onto a major street, and flanking lots to the depth of the fronting lots, are often situated in geographic neighbourhoods distinguishable from those located in the interior of the Neighbourhood due to characteristics such as:

• different lot configurations;
• better access to public transit;
• adjacency to developments with varying heights, massing and scale; or
• direct exposure to greater volumes of traffic on adjacent and nearby streets. In those neighbourhoods, such factors may be taken into account in the consideration of a more intense form of development on such lots to the extent permitted by this Plan.”

35I find that the direction of the Official Plan with respect to the definition of a geographic neighbourhood includes consideration of the street pattern but not in the manner proposed by Ms. Adams.

36The application for variances in this case is not for the purposes of considering a more intense form of development. The two variances, one for coverage and one for soft landscaped area, are correctly considered in the context of the criteria for defining a geographic neighbourhood as recited by Ms. Gursoy and identified in the Neighbourhood policies of the Official Plan.

37With respect to the delineation of a geographic neighbourhood study area as required by Official Plan Policy 4.1.5, I prefer the evidence of Ms. Gursoy. I also note the statement of Ms. Gursoy that her preparatory research included an analysis of the area across Bloor St and her statement that even if that area were to be included in her analysis, her opinion regarding the rear yard soft landscaping would remain unchanged.

OFFICIAL PLAN POLICIES

38Ms. Adams did not provide an analysis of applicable Official Plan policies. She presented a detailed inventory of other properties (many outside the geographic neighbourhood that I endorsed above) showing paved front yards, paved rear yards, and parking on grass. The examples presented included commercial, institutional and different forms of residential buildings.

39It was Ms. Adam’s evidence that the subject property provides more soft landscaping overall on its property than many in the geographic neighbourhood and does so in a more aesthetically pleasing manner than many neighbours.

[40] Ms. Gursoy referenced Official Plan Policy 4.1.5 g) which requires that development in established Neighbourhoods respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: …g) prevailing patterns of rear and side yard setbacks and landscaped open space;

41"Prevailing" is defined in Policy 4.1.5 as most frequently occurring.

42"Landscaping" is a defined term under the Zoning By-Law and reads: "[A]n area used for trees, plants, decorative stonework, retaining walls, walkways, or other landscape or architectural elements. Driveways and areas for loading, parking or storing of vehicles are not landscaping."

43Ms. Gursoy advised that she had reviewed City data of previously granted soft landscaping approvals in the study area and had found only one approval for a rear yard soft landscaping variance. The variance approved in that case was significantly smaller (26.11% of the rear yard) than what is proposed in this application. In her opinion, the proposed amount of soft landscaping does not respect the prevailing (most frequently occurring) patterns of landscaped open space and does not meet criterion g) of OP Policy 4.1.5.

44Ms. Gursoy is an Expert qualified to give opinion evidence in the discipline of land use planning. She cited the specific applicable policies and development criteria contained in the Official Plan. She correctly referenced the requirements of the policy, delineated a relevant study area and provided approval data to support her opinion.

45Ms. Adams’s evidence did not recognize the guidance of the Official Plan with respect to key aspects of OP Policy 4.1.5 and provided photographic evidence which was inconsistent with the directions of the policy to support her opinion.

46Although Ms. Adams provided a photographic catalogue of other properties with extensive hard landscaping, most of the examples would be excluded from consideration as comparables in the context of OP Policy 4.1.5’s definition of “prevailing”. Some are commercial or institutional properties and many are outside the appropriate neighbourhood study area.

47On the issue of prevailing patterns of rear and side yard setbacks and landscaped open space, I prefer the evidence of Ms. Gursoy and find that the requested variance does not maintain the general intent and purpose of the Official Plan.

48My finding regarding the first test is sufficient for the application to be refused as variances must meet all four tests to be approved. Nonetheless, I will proceed to address the remaining tests for the sake of completeness.

ZONING BY-LAW

49Ms. Adams did not directly address the general intent and purpose of the rear yard soft landscaping provision in the Zoning By-law.

50Her testimony was that since 50% of the front yard was permitted to be hard landscaping, and that no hard landscaping had been located in the front yard, the hard landscaping in the rear yard would be a “wash” on the subject property.

51Ms. Adams acknowledged that the proposal does not meet the letter of the By-law, but asserted that the proposal does not have an impact on drainage and therefore should be approved. In addition, she asserted that it is more aesthetically pleasing to have all the landscaping on Bloor St rather than half in the rear.

52Ms. Adams did not provide the TLAB with any plans or drawings. I relied upon the evidence of the City for a site plan of the property (Exhibit 4, Tab 9).

53Ms. Gursoy’s evidence was that minimum performance standards for soft landscaping regulate the amount of soft landscaping within a given neighbourhood to ensure consistent and compatible patterns of development and open space and that this preserves the look and feel of established streetscapes. Additionally, the intent of a minimum soft landscaping requirement is to provide adequate amenity/open space area in the rear yard for residents, as well as provide adequate space for storm water infiltration in the rear of the property.

54The general intent and purpose of front yard landscaping and rear yard landscaping provisions in the By-law are different and are controlled by different provisions in the By-law. In addition, front yard parking is prohibited in most areas of Toronto with few exceptions.

55The front yard of the subject property is currently unpaved. The as of right allowance to pave half of the front yard would not be affected by any variance granted for soft landscaping in the rear yard. Preservation of the equivalency (“wash”) between front and rear yards that Ms. Adams suggests is not enforceable.

56Notionally reassigning the front yard allowance for hard landscaping to the rear yard for the purposes of parking and driveways as suggested by Ms. Adams does not reflect the general intent and purpose of the Zoning By-law. As the City advised, part of the general intent and purpose of the rear yard soft landscaping provisions is to protect for a pattern of natural amenity and recreational space in the rear yards of detached houses.

57I find that the variance requested for minimum rear yard soft landscaping does not maintain the general intent and purpose of the Zoning By-law.

MINOR AND DESIRABLE

58Ms. Adams did not directly address the tests for “Minor” and “Desirable for the appropriate development of the land”

59For the same reasons set out above, I find that the variances do not meet the tests of “Minor” and “Desirable for the appropriate development of the land”.

CONCLUSION

60The Applicant has not provided sufficient justification for the TLAB to be satisfied that the requested variances maintain the general intent and purpose of the Official Plan and the Zoning By-law, and that the requested variances are Minor and Desirable for the appropriate development of the land.

DECISION AND ORDER

61The Appeal is allowed. The variances are not authorized.

A. Bassios Panel Member