Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211
Toronto, Ontario M4R 1B9
Date:
2023-02-28
22 108489 S45 11 TLAB
Selfe v. Toronto (City), 2023 ONTLAB 27
DECISION AND ORDER
Issuance Date:
February 28, 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):
N. M. Selfe
Applicant(s):
M. Goldberg
Property Address:
21 Valley View
COA File No.:
20 195518 STE 11 MV (A0813/20TEY)
TLAB Case File No.:
22 108489 S45 11 TLAB
Hearing Date(s):
February 21, 2023
Decision Delivered By:
TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
Name
Representative
Applicant
M. Goldberg
Appellant
N. M. Selfe
D. Bronskill
Owner
C. Selfe
Primary Owner
N. M. Selfe
Architect
Taylor Hannah Architect Inc.
Participant
K. D. Hurlburt
Party
City of Toronto
C. McKeich
INTRODUCTION AND CONTEXT
1This appeal hearing before the Toronto Local Appeal Body (the “Tribunal”) concerns an appeal by the owners (the “Appellant”) of the property municipally known as 21 Valley View (the “Property”).
2The Appellant’s application to Committee of Adjustment (the “Committee”) was described as to alter the existing two-storey detached dwelling by constructing a rear one-storey addition. For the purpose of that application the requested variances were fourfold: 1. Section 10.20.40.70.(2)(B), By-law 569-2013 - The minimum required rear yard setback is 10.81 m. The altered dwelling will be located 2.22 m from the rear (south) lot line. 2. Section 10.20.40.20.(1), By-law 569-2013 The maximum permitted building length is 17 m. The altered dwelling will have a length of 26.59 m. 3. Section 10.20.40.30.(1), By-law 569-2013 The maximum permitted building depth is 19 m. The altered dwelling will have a depth of 25.98 m. 4. Section 5.10.40.70.(6), By-law 569-2013 If the Toronto and Region Conservation Authority determines that a shoreline hazard limit or a stable top-of-bank crosses a lot, a building or structure on that lot must be setback a minimum of 10 m from that shoreline hazard limit or stable top-of-bank. The altered dwelling will be located 2.36 m from that shoreline hazard limit or stable top-of-bank.
3To be clear, the Appellant was seeking a larger rear extension to the house lying on its westerly side and a small ‘bump out’ sitting room extension, also at the rear, on its easterly side. It is the latter extension which lies within an area identified as the Long Term Stable Slope area.
4By its decision rendered on January 12, 2022, the Committee refused the application. The Appellant appealed that decision to the Tribunal.
5There then follows a somewhat extended and involved path to this hearing.
6Following the refusal and appeal, the Appellant revised the architectural plans by increasing the rear yard setback from 2.22 m to 3.05 m which resulted in the building depth being reduced from 25.98 m to 25.15 m, and the building length being reduced from 26.59 m to 25.76 m.
7There was an issue between the Appellant and the City concerning a combined sewer which runs along the west edge of the Property and along the east edge of 15 Valley View, the property immediately adjacent to the west. The Appellant and the City came to terms on that matter with a solution which is designed to protect the sewer pipe. The settlement includes building and structural setbacks from the centreline of the City’s sewer pipe, and conditions. As a result, subject to the imposition of a condition requiring the execution of an agreement under the authority of s.45(9.1) of the Planning Act, and the west side yard setback being increased from 0.90 m to 1.04 m, the City did not oppose the variance relief being sought.
8The first Tribunal hearing took place on June 3, 2022 before Member Yao. A decision was issued by Member Yao on July 8, 2022 which dismissed the appeal and therefore confirmed the refusal of relief as decided by the Committee.
9A review of that decision was requested by the Appellant. The decision was reviewed by Member Makuch, and an order was issued by him that the hearing be reheard by a different member.
10Since the time of that Order, the Appellant has again revised the building proposal from a 1-storey addition to a much shorter 2-storey addition but has retained the sitting room bump out as originally proposed As a result, two heads of variance relief are no longer required, being building depth and rear yard setback, and have consequently been abandoned.
11The variances now being sought are the following two heads of relief: 1. Section 10.20.40.20.(1), By-law 569-2013 - The maximum permitted building length is 17 m. The altered dwelling will have a length of 18.0 m. 2. Section 5.10.40.70.(6), By-law 569-2013 If the Toronto and Region Conservation Authority determines that a shoreline hazard limit or a stable top-of-bank crosses a lot, a building or structure on that lot must be setback a minimum of 10 m from that shoreline hazard limit or stable top-of-bank. The altered dwelling will be located 2.36 m from that shoreline hazard limit or stable top-of- bank.
12In this regard, Mr. Bronskill made a motion under s.45(18.1.1) of the Planning Act that the Tribunal allow the resultant modifications to the requested relief on the basis that they were minor and did not require further notice. In light of the fact that the modifications were meant to be responsive to the objections which had been raisedin the prior proceedings, involved the jettisoning of two heads of relief, and resulted in a significant reduction in the length of building relief, the Tribunal was satisfied that it was appropriate to exercise its jurisdiction in this instance to authorize those modifications without further notice.
THE LEGISLATIVE AND POLICY FRAMEWORK
13Variance – S. 45(1)
In considering applications for variances from the Zoning By-laws, the Tribunal Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Planning 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
14Mr. Goldberg provided the Tribunal with an overview of the area and described the Study Area which he delineated in order to assess the character of the area as well as the development activity which has occurred and the extent and nature of zoning variance relief which has been granted by the Committee in this area.
15His Study Area represents that part of the Moore Park neighbourhood which lies between the Mud Creek/Moore Park Ravine to the east, Welland Avenue/Maclennan Avenue to the west, St. Clair Avenue East to the north and Rosedale Heights Drive to the south.
16Mr. Goldberg provided photos of the Property, which showed that when the vegetation is in leaf, there is a thick leafy green screen along the rear lot line which essentially obstructs views in and out of the Property as relates to the Inglewood Drive properties. By contrast, Mr. Hurlburt produced wintertime photos when the trees are not in leaf and at that time of year, there are views of the buildings in both directions.
17Mr. Goldberg took the Tribunal to what he considered the relevant policies in the Official Plan (“OP”), which included Policies 2.3.1, Healthy Neighbourhoods, 3.1.2.1, Built Form, and 4.1, Neighbourhoods.
18Focussing on Policy 4.1.5, as it sets out development criteria to be applied with respect to new development within Neighbourhoods designated lands, he spoke to the matter of building length and he produced a chart upon which he had compiled those properties within the Study Area where building length relief had been applied for and approved.
19The chart identified 15 properties which had the benefit of building length extensions which had been approved by the Committee. The building lengths authorized all exceeded 18m save for two, and ranged from 17.62m up to 22.78m.
20Mr. Goldberg offered the view that the deployment and massing and scale of the proposed addition is very similar to other additions to dwellings in the neighbourhood. The 2-storey rear yard addition complies with the By-law height standard, complies with the rear yard setback standard, complies with the building depth, and requires only a 1m variance for building length. The addition will be north of, and behind, the existing privacy fence and existing frame cabana. Both the building length and depth were reduced from 25.76 m to 18.0 m and from 25.15 m to 17.40 m, respectively. The reduced length and depth variances were a result of increasing the rear yard setback from 4.56 m to 10.81 m, further increasing separation and reducing massing.
21With respect to the variance for the sitting room extension, Mr. Goldberg advised that the proposed addition adjacent to the existing living room is setback 2.36 m from the Long Term Stable Top of Bank (LTSTB). This addition has not changed since the Committee of Adjustment application in July 2021. The addition does not encroach beyond the LTSTB line; rather it projects southward and in parallel to the LTSTB. The current dwelling on the eastern part of the site lies within it. The Toronto and Region Conservation Authority (TRCA) wrote a memo dated July 28, 2021, stating it had no objection to the proposal. Along with the City’s Ravine and Natural Feature Protection Unit, which has a concurrent jurisdiction, there was no opposition to this head of variance relief.
22Mr. Goldberg suggested that this should be taken to affirm conformity with the Natural Environment policies of the OP.
23Based upon this review, Mr. Goldberg was of the opinion that the variances, individually and cumulatively maintain the general intent and purpose of the OP.
24On the premise that the intent and purpose of the zoning by-law is to establish uses and development standards that will implement the OP, not give rise to adverse planning impacts on the immediate or broader neighbourhood and will tend to the creation of buildings which will be compatible with the parcel upon which they are constructed and with neighbouring developments, and considering the same Committee data as was canvassed above, Mr. Goldberg came to the conclusion that the requested variances would maintain the general intent and purpose of the zoning by-law.
25Based upon the order of magnitude of the variances and the absence of any perceived adverse effect on neighbouring properties, Mr. Goldberg asserted that the variances could properly be considered minor.
26And finally, Mr. Goldberg said that the subject proposal is reinvestment on this property with an addition to accommodate the long-term owners/occupants of this dwelling. It is desirable to accommodate the needs of existing owners where appropriate plans are put forward. The addition more fully utilizes the zoning permissions and the capability of the site, within its context. He says that the size, scale and standards applied to this proposal are appropriate and such reinvestment is compatible and fitting with the neighbourhood and with adjacent properties and will contribute to the ongoing stability of this neighbourhood for grade related, low rise dwellings.
27Mr. Hurlburt filed a Participant Statement and gave oral evidence at the hearing. It was his perception from reviewing the architectural drawings that what was proposed, although set further back from the rear lot line, was a two storey structure rather than a one storey addition, which would present as a solid stone wall and be completely out of character with the built form in the neighbourhood. In his view, this would result in a very adverse effect on the enjoyment of his property.
28With some explanation by Mr. Goldberg, it was pointed out to Mr. Hurlburt that there was intended to be glazing in the easterly portion of the new rear wall (which admittedly was not at all clear on the face of the drawings as it was represented with a slightly greyer tone of shading) and this appeared to assuage Mr. Hurlburt somewhat.
ISSUES AND ANALYSIS
29As noted above, the City came to the hearing having resolved its concerns with the Appellant and signified its support for the variances on the strength of a commitment by the Appellant to agree to the imposition of conditions which are designed to ensure the ongoing integrity of its combined sewer.
30The only other person involved in the hearing was Kevin Hurlburt, the owner of 355 Inglewood Drive, which property abuts the Property along part of its rear lot line.
31Mr. Hurlburt started off by expressing procedural concerns. He was of the view that Mr. Goldberg should not be able to offer expert evidence in this proceeding as he had been the agent of the Appellant at the Committee hearing and that would thus put him in a professional conflict in terms of his duty to be objective and non-partisan. He referenced the Tribunal’s Rule 14.4, which states that an expert witness cannot be a representative in the same proceeding.
32Mr. Hurlburt was advised by the Tribunal that it is common practice for planning consultants to present applications to the Committee and that, in and of itself, would not disqualify Mr. Goldberg from appearing before this Tribunal strictly in the role of expert witness and not as advocate, the Acknowledgment of Expert’s Duty intending to ensure the witness’ distance from partisanship.
33Mr. Hurlburt also took the position that this hearing was procedurally unfair on two bases. Firstly, he was concerned that there was inadequate notice. On that point, after having made inquiry of Tribunal staff, the panel advised Mr. Hurlburt that the same persons who were entitled to notice on the original hearing before the Tribunal were on the mailing list for notice for this hearing session.
34On the second front, Mr. Hurlburt took the position that as the proposal had now been modified to a two storey addition rather than the original one storey addition, the application should properly be remitted back to the Committee for a fresh hearing with notice to all persons who would get notice of a Committee hearing, which would take in additional persons.
35It was the position of this panel that the ability of an applicant to modify its proposal was not specifically constrained under the Tribunal’s Rules and, further, that the objective was to have applicants modify their proposals so as to respond to objections and to bring the proposal more in conformity with the Zoning By-law.
36In this instance, by advancing the modifications which the Appellant did here, the Appellant was able to abandon two heads of relief originally sought. And the modifications reduced the building length relief substantially while abiding by the other performance standards of the By-law.
37As such, the matter was properly before the Tribunal and the Tribunal had an obligation to conduct a hearing on the proposal as now modified.
38It came out through Mr. Goldberg’s testimony that Mr. Hurlburt himself had made application to the Committee in 2010 with respect to his property at 355 Inglewood Drive to alter the existing two-storey detached dwelling by constructing a rear first floor deck with stairs to grade, a partial second floor, a two-storey rear addition, and a one-storey attached garage with an undersized parking space.
39In cross-examination by Mr. Bronskill, Mr. Hurlburt confirmed that he had made this application, which was approved, and that one of the heads of relief was to permit a building length of 18.1356m rather than the 17m permitted by the Zoning By-law.
40In further pursuing this cross-examination, to his credit, Mr. Hurlburt clearly and expressly confirmed that he had no objection to the 18m building length for the proposal on the Property and, further, that it could be considered minor and reasonable.
41Based upon the evidence of Mr. Goldberg and the concessions by Mr. Hurlburt, the Tribunal is satisfied that the modified application for variance relief meets the four tests under s.45(1) of the Planning Act. The Tribunal is also satisfied that there is no issue arising from the modified proposal regarding consistency with the Provincial Policy Statement nor regarding conformity with the Growth Plan for the Greater Golden Horseshoe 2020.
CONCLUSION
42The Tribunal will allow the appeal and approve the variances as modified.
DECISION AND ORDER
43The Tribunal ORDERS THAT the Appellant’s appeal is allowed and the following variances are approved on the conditions set forth below:
Section 10.20.40.20.(1), By-law 569-2013 The maximum permitted building length is 17 m. The altered dwelling will have a length of 18.0 m.
Section 5.10.40.70.(6), By-law 569-2013 If the Toronto and Region Conservation Authority determines that a shoreline hazard limit or a stable top-of-bank crosses a lot, a building or structure on that lot must be setback a minimum of 10 m from that shoreline hazard limit or stable top-of-bank. The altered dwelling will be located 2.36 m from that shoreline hazard limit or stable top-of- bank
44The Conditions are as follows:
The Owner and the City shall enter into an agreement pursuant to Section 45(9.1) of the Planning Act to be registered on title to the property municipally known as 21 Valley View to the satisfaction of the City Solicitor, at the sole cost of the Owner, prior to any building permit being issued, providing for, without limitation, the following matters:
i. The Owner agrees not to erect or place any new building or structure, or file an application seeking permission for any new building or structure, within the area depicted by heavy black dotted lines on Drawing A0 of Schedule 1; and
ii. The Owner agrees not to plant any new trees within the area depicted by heavy black dotted lines on Drawing A0 of Schedule 1 that would unreasonably obstruct the City's ability to access the underground infrastructure
G. Swinkin
Panel Member