Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
22 174452 S53 18 TLAB 22 174453 S45 18 TLAB 22 174454 S45 18 TLAB
Pasand v. Toronto (City), 2023 ONTLAB 3
DECISION AND ORDER
Issuance Date: February 7, 2023
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): Reza Pasand
Applicant(s): Design Plan Services
Property Address: 98 Bogert Ave
COA File No.: 21 145738 NNY 18 CO (B0022/21NY) 21 145739 NNY 18 MV (A0296/21NY) 21 145740 NNY 18 MV (A0297/21NY)
TLAB Case File No.: 22 174452 S53 18 TLAB 22 174453 S45 18 TLAB 22 174454 S45 18 TLAB
Hearing Date(s): January 6 and 31, 2023
Decision Delivered By: TLAB Panel Member G. Swinkin
Registered Parties and Participants:
| People Type | Name | Representative |
|---|---|---|
| Applicant | Design Plan Services | |
| Appellant | R. Pasand | M. Mazierski |
| Party | City of Toronto | C. Dougherty |
| Expert Witness | D. Steinberg | For City of Toronto |
| Expert Witness | S. Qi | For R. Pasand |
INTRODUCTION AND CONTEXT
1This appeal hearing before the Toronto Local Appeal Body (the “Tribunal”} concerned an application to the Toronto Committee of Adjustment (the “Committee”) by Reza Pasand (the “Owner”) for a consent to sever the parcel he owns, municipally known as 98 Bogert Avenue (the “Property”), in two and to secure a set of variances from the applicable Zoning By-laws to enable the construction of two new two-story detached dwellings on each of the two new parcels.
2The Committee refused the applications. The Owner appealed those decisions.
3Apart from the Owner and the City of Toronto (the “City”) there were no other persons who elected Party or Participant status in this appeal proceeding. The City appeared for the purpose of defending the Committee decisions of refusal. The Owner appeared seeking allowance of his appeals and approval of the three applications. Each Party called a land-use planning expert witness and no other witnesses.
The Property
4The Property is located on the north side of Bogert Avenue between Beaman Road and Frizzell Road. Bogert Avenue is located one block south of Sheppard Avenue West, west of Yonge Street. It is located in the neighbourhood referred to as Lansing- Westgate.
5The Property is a lot which is rectangular in shape, with 15.24 m of frontage and a depth of 33.59 m. The lot area is 510.96 m². There is presently located upon it a bungalow, which is proposed to be demolished, in order to accommodate the redevelopment proposal.
6The Property is currently zoned RD (f15.0; a 550) (x5) under the City of Toronto Zoning By-law 569–2013. This is a residential detached zone, with a minimum required lot frontage of 15 m, and a minimum required lot area of 550 m².
7The Property is also subject to Exception "RD5" under the City of Toronto Zoning By-law, 569–2013, which refers to Exception 900.3.10(5). Exception (RD5) requires a minimum side yard setback of 1.8 m.
The Neighbourhood
8The neighbourhood, which will be described in greater detail below with reference to the delineation of the neighbourhood and its subsets under Policy 4.1.5 of the Official Plan (the “OP”), is essentially composed of detached dwellings of one or two storeys. There has been significant renewal in the neighbourhood.
9Single detached dwellings in the neighbourhood are 1-2 storeys in height, with newer detached dwellings generally having a larger scale and massing, integral garages and elevated main pedestrian entrances, while older homes tend to have attached garages or detached garages in the rear yards which are accessed through either front yard or side yard driveways, at a generally lower scale and massing.
10The exception to this general character involves two assemblies of properties on Sheppard Avenue West and Bogert Avenue, one of which is in the same block as the Property and the other of which is further west.
1153-63 Sheppard Avenue West and 62-68 Bogert Avenue, located approximately 100m to the east of the Property and within the same block (also identified as the Immediate Context for the purposes of Policy 4.1.5) were subject to a Zoning By-law Amendment application which was approved by the Ontario Municipal Board (“OMB”) on October 12, 2017. The Tribunal was advised that this development is currently in the Site Plan Approval process. The application consists of a 16- storey mixed-use building containing 381 residential units fronting onto Sheppard Avenue West, and 9 four-storey townhouse dwellings with a height of 13.87m and a dwelling width for each unit of 4.2m fronting onto Bogert Ave. With construction of this development, the townhouse dwellings will form part of the immediate context of the neighbourhood. This will be referred to in this decision as the “Sheppard/Bogert mixed use development” and the decision of the OMB which approved it as the “Sheppard/Bogert OMB Decision” (which is styled 2226396 Ontario Inc. v. Toronto (City), OMB Case No. PL151222; 2017 CanLII 68093 (ON LPAT)). As it so happens, both Parties referred to this decision in their supporting material and relied upon it for aspects of their positions, which will be further discussed below.
12245-255 Sheppard Avenue West and 244-256 Bogert Avenue, located approximately 550m to the west of the Property, were subject to both Official Plan Amendment and Zoning By-law Amendment applications which were both approved in principle by the OMB on February 13, 2019. This development is also currently in the Site Plan Approval process. This proposal consists of an 11 storey mixed-use building containing 103 residential units fronting onto Sheppard Avenue West, and 9 three-storey townhouse dwellings with a height of 11.295m and a dwelling width of 5.625m fronting onto Bogert Avenue.
The Redevelopment Proposal
13The consent application seeks permission to divide the Property into two lots. The proposed lots have lesser frontages and lot areas than the minimum requirement under Zoning By-law No. 569-2013.
14A draft Reference Plan of Survey ("the Draft R-Plan") was submitted to the Committee as part of the application.
15Part 1 on the draft R-Plan is the east lot and is proposed to be retained by the Owner. The minor variance application associated with Part 1 is File no. A0297/21NY. Part 1 has a proposed lot frontage of 7.62 metres and a lot area of 255.5 square metres.
16Part 2 on the draft R-Plan is the west lot and is proposed to be conveyed. The minor variance application associated with Part 2 is File no. A0296/21NY. Part 2 has a proposed lot frontage of 7.62 metres and a lot area of 255.5 square metres.
17The following variances are being sought for Part 1 (A0297/21NY):
City of Toronto Zoning By-law 569-2013
Chapter 10.20.30.10(1)(A), By-law No. 569-2013 The required minimum lot area is 550m2. The proposed lot area is 255.42m2.
Chapter 10.20.30.20(1)(A), By-law No. 569-2013 The required minimum lot frontage is 15m. The proposed lot frontage is 7.62m
Chapter 10.20.30.40(1)(A), By-law No. 569-2013 The permitted maximum lot coverage is 30%. The proposed lot coverage is 31.97%.
Chapter 900.3.10(5)(A), By-law No. 569-2013 The minimum side yard setback is 1.8m. The proposed east side yard setback is 1.22m.
Chapter 900.3.10(5)(A), By-law No. 569-2013 The minimum side yard setback is 1.8m. The proposed west side yard setback is 1.22m.
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform is 1.8m. The proposed west side yard setback for the rear yard non-encroaching platform is 1.22m.
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform is 1.8m. The proposed west side yard setback for the front yard non-encroaching platform is 1.22m.
Former City of North York Zoning By-law No. 7625
- Section 13.2.6, By-law No. 7625 The maximum permitted building height is 8.8m. The proposed building height is 9.97m.
18The following variances are being sought for Part 2 (A0296/21NY):
City of Toronto Zoning By-law No. 569-2013
Chapter 10.20.30.10(1)(A), By-law No. 569-2013 The required minimum lot area is 550m2. The proposed lot area is 255.48m2.
Chapter 10.20.30.20(1)(A), By-law No. 569-2013 The required minimum lot frontage is 15m. The proposed lot frontage is 7.62m
Chapter 10.20.30.40(1)(A), By-law No. 569-2013 The permitted maximum lot coverage is 30%. The proposed lot coverage is 32%.
Chapter 900.3.10(5)(A), By-law No. 569-2013 The minimum side yard setback is 1.8m. The proposed east side yard setback is 1.22m.
Chapter 900.3.10(5)(A), By-law No. 569-2013 The minimum side yard setback is 1.8m. The proposed west side yard setback is 1.22m.
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform is 1.8m. The proposed west side yard setback for the rear yard non-encroaching platform is 1.22m.
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform is 1.8m. The proposed west side yard setback for the front yard non-encroaching platform is 1.22m.
Chapter 10.5.40.70(1), By-law No. 569-2013 The minimum required front yard setback is 5.75m. The proposed front yard setback is 5.63m.
Forner City of North York Zoning By-law
- Section 13.2.6, By-law No. 7625 The maximum permitted building height is 8.8m. The proposed building height is 9.97m.
THE LEGISLATIVE AND POLICY FRAMEWORK
19Provincial Policy – S. 3
A decision of the Tribunal 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’).
20Consent – S. 53
The Tribunal must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,
(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2 of the Planning Act;
(b) whether the proposed subdivision is premature or in the public interest;
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;
(d) the suitability of the land for the purposes for which it is to be subdivided;
(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;
(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;
(f) the dimensions and shapes of the proposed lots;
(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;
(h) conservation of natural resources and flood control;
(i) the adequacy of utilities and municipal services;
(j) the adequacy of school sites;
(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;
(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and
(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).
21Minor Variance – S. 45(1)
In considering the 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 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
22As noted above, the Tribunal heard from two land use planning witnesses, Steven Qi on behalf of the Appellant, and Diana Steinberg on behalf of the City, both of whom were qualified to offer opinion evidence on land use planning matters.
23Mr. Qi is a Registered Professional Planner with over six years of experience in the public and private sector. Ms. Steinberg is currently an assistant planner in the City Planning Department since March, 2022, having been graduated from the School of Urban and Regional Planning at Toronto Metropolitan University in 2021.
24In accordance with Policy 4.1.5 of the OP, both planners mapped out a geographic neighbourhood against which to explore and understand the character of the area. They were in general agreement on the boundaries of the geographic neighbourhood, or broad context, except for the fact that Ms. Steinberg included an area to the west of Easton Road referred to as the Gwendolen Crescent lands where many of the lots are much deeper and wider.
25They were ad idem on the Immediate Context, as that term is defined in the OP, as it is the block within which the Property is located, including both sides of the street within that block.
26A key part of Ms. Steinberg’s evidence related to the West Lansing Zoning Study, its findings and the implementation of its recommendations. As a result of the study, a portion of the West Lansing neighbourhood, known as the "Focused Study Area" bounded by Johnston Avenue to the north, Franklin Avenue to the south, Yonge Street to the east and Botham Road to the west has been rezoned to permit smaller lots with minimum frontages of 7.5 metres and a minimum lot area of 300 square metres, and minimum side yard setbacks of 0.90 metres and 1.2 metres. The final Staff report states the intent of the Study was to "direct intensification through minor variance and consent applications to the Focused Study Area where it is most appropriate in the West Lansing neighbourhood, reduce the number of required minor variances for lot size and side yard setbacks, and create new, updated, and clearer zoning regulations which reflect the evolving character of the area
27There are lots with 7.62 metre frontages in the geographic neighbourhood, however, she says that when looking at the lot frontage map, it is clear that many of them are concentrated in the Focused Study Area that was rezoned as part of the West Lansing Zoning Study. The Focused Study Area is the portion of the West Lansing Neighbourhood that was rezoned for 7.5 metre frontages and 300 square metre lot areas. She points out that the lot frontage map shows that within the geographic neighbourhood, there are 129 lots in the Focused Study Area and 709 lots outside the Focused Study Area. Of the 129 lots in the Focused Study Area, there are 39 lots with frontages of 7.62 metres or less. This represents approximately 30% the total number of lots in the Focused Study Area. Lots with 7.62 metre frontages outside of the Focused Study Area represent a comparatively smaller portion of the total number of lots. Of the 709 lots outside of the Focused Study Area, 47 lots have frontages of 7.62 metres. This represents approximately 7% the total number of lots outside of the Focused Study Area.
28Ms. Steinberg says that when looking at the frontage map of the geographic neighbourhood, it is clear that lots with comparable frontages (i.e., 7.62m) have a higher concentration in the Focused Study Area. The data reinforces this observation that there is a proportionally higher number of these lots, and therefore a more significant presence within the Focused Study Area. The remaining number of comparable sized lots are scattered throughout the geographic neighbourhood and are either historical in nature, or were created through a consent. The lot study reveals that in the immediate context, which includes the subject block and the block opposite, the majority of lots meet the in-force by-law requirement for lot frontage. There are 25 lots in the immediate context with single detached dwellings on them (excluding the four lots which will now make up the base for the townhouses related to the Sheppard/Bogert development), and 14 lots have frontages that comply with or exceed the minimum required lot frontage of 15.0 metres. This represents 56% of the lots in the immediate context. The remaining 11 lots in the immediate context have a frontage of less than 15.0 metres. However, 9 of these lots, or approximately 36% of the lots in the immediate context, have a frontage of at least 10.20 metres. Of the 25 lots in the immediate context, 23, or approximately 92% of lots have a lot frontage of 10.20 metres or greater. Lots with comparable frontages to the proposed applications are represented by only 2 lots with frontages of 7.62 metres, representing 8% of the total number of lots in the immediate context. She sums up by saying that although there are 2 comparable lots with frontages of approximately 7.62 metres located in the immediate context, it is clear from the results of the lot study that these undersized frontages do not have a significant presence in the immediate context.
29Mr. Qi engaged in a similar exercise but his points of reference were composed through wider lenses. That is, Mr. Qi created three ranges. He tabulated lot frontage on the basis of those lots which range from 0 to 7.61m, 7.62 to 14.99m and 15m and above. And he tabulated lot area on the basis of those lots which range from 0 to 255.41m2, 255.42m2 to 549.99m2 and 550m2 and above.
30His conclusion from the lot analysis prepared by him indicates that the majority of lots (66.3%) have a frontage less than the required lot frontage of 15m, and a majority of lots (82.4%) have a lot area less than the required lot area of 550m2. These outcomes split out geographically. More specifically, areas to the east of Pewter Road contain all 4 residential zones present within the neighbourhood, while areas to the west of Pewter Road only contain the 2 residential zones which require larger lot frontages and areas. He observes that due to the variety of zoning standards applicable to the area east of Pewter Rd, larger lots are found abutting smaller lots in this area of the neighbourhood. For the area to the west of Pewter Rd, lot frontages and sizes are generally more consistent.
Side yard setbacks
31Mr. Qi explains that the purpose and intent of the side yard setback 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. It also ensures adequate separation between dwellings and helps mitigate any privacy issues from abutting dwellings.
32The side yard setback variance requested here was triggered due to the site specific exception provision RD5, which requires a minimum side yard setback of 1.8m.
33Save for this exception provision, under the base zoning category applicable to the Property, RD(15.0; a550), Section 10.20.40.70.(3)(D), establishes the side yard setback requirement at 1.5 metres if the required minimum lot frontage is 15.0 metres to less than 18.0 metres. Under Section 10.20.40.70.(3)(C), the side yard setback requirement is 1.2 metres if the required minimum lot frontage is 12.0 metres to less than 15.0 metres. Mr. Qi states that as the lot frontage of the Property as it stands is 15.24m, which is on the lower end of the category of 15m to 18m, it is arguably more comparable to the category of 12m to 15m where a 1.2m side yard setback is required.
34He points out that the immediately adjacent dwelling to the east (96 Bogert Ave) has a west side yard setback of 1.72m, which does not comply with the Zoning By-law requirement of 1.8m, and that the immediately adjacent dwelling to the west (106 Bogert Ave) has an east side yard setback of 1.52m, which also does not comply with the Zoning By-law requirement.
35He informed the Tribunal that under the Zoning by-law, a 1.2m side yard setback is an existing permitted side yard setback standard in many areas in the City, including in this geographic neighbourhood. In this regard, he provided a list from the geographic neighbourhood of the most frequently Committee approved side yard setback at 1.2m for both sides.The list included variances for setbacks of 1.01m, 0.9m, 0.82m, 0.75m, 0.61m and 0.4m.
36Therefore, Mr. Qi offers the opinion that the proposed 1.22m side yard setback for both side yards in this instance will meet the intent of the Zoning By-law as they will provide adequate access and will accommodate stormwater infiltration and runoff, supported by the fact that this setback depth is prevalent in the immediate and broader neighbourhood context.
The Other Variance Requests
37The Appellant is also seeking variances with respect to lot coverage, front and rear platform setbacks, front yard setback on one lot and building height.
38Permitted lot coverage is 30%. Proposed lot coverage is 32%. Mr. Qi says that this involves 5.1 square metres of overage and would not be perceptible from the street. He further advises that from his research of Committee records, out of 206 applications, 114 were approved for lot coverage of 32% and many were approved for greater coverages, so that this is not beyond what has been commonly approved for the neighbourhood.
39With respect to the front porch and rear deck platform encroachments, these will align with the building wall setback and will not hamper functionality. Such relief is also apparently common in the neighbourhood.
40The minimum required front yard setback is 5.75m. The westerly parcel will comply. The proposed front yard setback for the easterly parcel at 5.63m will not.
41The immediately adjacent dwelling to the east (96 Bogert Ave) has a front yard setback of 6.07m, and the immediately adjacent dwelling to the west (106 Bogert Ave) has a front yard setback of 4.77m. Mr. Qi suggests that the proposed front yard setbacks of 5.2m and 5.63m are within the range of front yard setbacks of the adjacent dwellings, and therefore fit in with the adjacent dwellings on Bogert Ave. Further, the proposed dwellings would ultimately provide a gradual transition in setback between the two adjacent dwellings, which is what the Zoning By-law contemplates by calculating the required front yard setback using the existing front yard setbacks of the two properties on the opposite side.
42He further supports this opinion by saying that the purpose and intent of the minimum front yard setback, in part, is to keep a consistent and pleasant streetscape while mitigating any shadowing issue on the adjacent dwellings. It also provides for an amenity area, open space, and “green” area within the Property. On this basis, he concludes that the objectives of the by-law are being met and that the dwellings will appropriately fit in this streetscape.
43The proposed building height, at 9.97m, complies with the permitted building height under the current City Wide Zoning By-law 569-2013, which permits a maximum height of 10.0m. However, the proposed dwelling is temporarily subject to the former North York Zoning By-law 7625, which permits a maximum height of 8.8m. So, this is truly a technical variance pending the discontinuance in force of the former North York Zoning By-law.
44His ultimate opinion with respect to these further variances was that each one independently and in the aggregate can legitimately be considered minor and in keeping with the general intent and purpose of the OP and Zoning By-law, and desirable for the use and development of the Property.
45Ms. Steinberg’s foremost objection to the proposal was regarding the lot division and its deficiency in lot frontage and lot area, and therefore that the lots should not be created. As such, the building proposal was secondary and she did not offer an express opinion on the matter of the building related variances.
Provincial Planning Policy
46Both planners addressed Provincial planning policy as laid out in the PPS and the Growth Plan. They both identify the objectives of those policies to achieve intensification where appropriate and to efficiently utilize infrastructure and community services.
47Mr. Qi carefully canvassed all of what he treated as the relevant and applicable policies from those two documents and concluded that the redevelopment proposal here would be in keeping with the objectives of those policies and are therefore consistent with the PPS and conform with the Growth Plan.
48Ms. Steinberg advises that the applications conform to the Growth Plan and do not conflict with the PPS, however she says that the provincial policies clearly define the primary role of the Official Plan in directing where intensification is to occur, and in what form through localized land use designations. Her view is that the policies contained within the OP provide the most detailed guidance for evaluating the applications.
49One of the aspects of Provincial policy as expressed in the Growth Plan, which is now making its way into the OP is that of the Protected Major Transit Station Area (“PMTSA”). The planning goal around PMTSAs is to ensure the establishment of greater density within walking distance of them so as to encourage transit usage. According to Schedule “50” of draft OPA 570, the Property is located within the Sheppard-Yonge PMTSA. Based upon the mapping in the Schedule, the Property is subject to a minimum density of 0.3 FSI or 3 units, and there is no maximum density applicable to the Property.
ISSUES AND ANALYSIS
50From the Sheppard/Bogert OMB Decision “While there is no dispute that detached dwellings are the prevalent built form within this neighbourhood, the Official Plan policies specifically contemplate the compatible co-existence of townhouses within neighbourhoods. The Board heard no compelling evidence to distinguish this site from other City neighbourhoods in this particular regard, and concurs with the on point decisions of Vice-Chair Susan Schiller (PL150687) and Member Blair Taylor (PL160390) which were cited in argument.”
51From the referenced 200 Keewatin Developments Inc. decision (PL150687), Vice-Chair Schiller finds that the height of the proposed stacked townhouses is compatible with the heights in the surrounding Neighbourhoods area. Individually, the dwelling type is a two-storey residential unit. As a dwelling type, it fits the neighbourhood.
52She then goes on to say that “the building type is different from the predominant built form in this neighbourhood. The OP specifically mentions townhouses as a built form found in the Neighbourhoods designation. The proposal simply stacks one two-storey townhouse on top of another two-storey townhouse. The resulting four storeys are not out of keeping with a single, four-storey townhouse. Two residential units within a single four-storey module instead of one unit within that same module is a modest form of intensification.”
53It seems to this panel that the same can be said here. The introduction of the townhouses will bring a different building type to this block but that does not mean that they will not compatibly co-exist with the detached dwellings. In the same vein, the block now has small lot singles which, to all appearances, seem to be compatibly co-existing with the other single family lots and dwellings. Judging by the absence of neighbour opposition to this proposal, this seems to be a defensible conclusion.
54As such, the Tribunal is satisfied that the dictum in Policy 3.1.2 of the OP is respected in this instance, which policy declares that Neighbourhoods are low rise and low density residential areas that are considered to be physically stable. Development in Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas. The proposed buildings here are a form in plentiful existence in this area.
55Ultimately, the flashpoint for this hearing was over the issues of lot frontage and lot area.
56Both planners produced lot fabric maps with zoning overlays and colour coding to reflect lot frontage and lot area ranges. Mr. Qi chose to depict three frontage ranges whereas Ms. Steinberg chose to reflect five ranges based upon the four zoning categories which are found within the study area and those parcels which fell below the least prescriptive zone. Her five ranges with respect to frontage were up to or equal to 7.62m, 7.63m to 8.99m, 9m to 11.9m, 12m to 14.9m and 15m or greater.
57City counsel was critical of Mr. Qi’s ranges due to the extent of variation from top to bottom. His three ranges were up to 7.61m, 7.62m to 14.99m and 15m and up. The criticism was focussed on Mr. Qi using his ranges to characterize the percentages of the categories and claim that the proposal fell within the range which represented 64.8% of the neighbourhood despite the fact that a frontage of 7.62m was at the bottom end of a range which went all the way up to 14.9m.
58By contrast, Ms. Steinberg’s ranges suggested that the proposal would be reflective of only 10% of the lots in the area (i.e., lots with frontages of 7.62m or less).
59In keeping with the Provincial policy imperative of intensification, City Council has been entertaining and gradually introducing amendments into the Zoning By-law to accommodate the more efficient exploitation of the land resource and infrastructure in the Neighbourhoods designation. This is being advanced through the initiative known as Expanding Housing Options in Neighbourhoods (“EHON”).
60Mr. Qi brought to the attention of the Tribunal the Updated EHON Report dated February 1, 2022, which stated that “Land division may create opportunities for additional new low-rise housing by increasing the stock of single detached houses, semi-detached houses, and townhouses. Policy amendments would be necessary to establish criteria to consider the severance of existing lots to utilize land within Neighbourhoods for additional new housing.” Although, specific policies for land divisions were not proposed in this report or at this stage of EHON, the influence of the West Lansing Focused Study Area exercise will surely be a harbinger of what is to come for Bogert Avenue in the sphere and influence of the PMTSA.
61What the Tribunal means here is that, despite the West Lansing Focused Study Area as delineated being south of the area in which the Property is located, the separation of these areas is not by virtue of discernible hard and fast physical or natural features or boundaries so as to distinctly differentiate them. The integration of the road network connects the community and tends to the “spill” of character from one area to the other, which is evident from the photo illustrations provided within what has been established as the geographic neighbourhood.
62The assessment of ‘fit’, as that term is used in the OP, is informed in these proceedings on the basis of a variety of inputs but it would be fair to say that photos of the existing conditions throughout the neighbourhood are a substantial component in that visualization. The neighbourhood photos have assisted the panel in this proceeding to conclude that the proposed lot division and building proposal will fit the character of the area.
63The Tribunal took in as part of the evidence, the April 18, 2018 Final Staff Report regarding the West Lansing Zoning Study. In the explanation of the genesis of the Study, the Report says that West Lansing, like many other neighbourhoods in the City of Toronto, has experienced an increase in minor variance and consent (lot severance) applications over the last 10 years. The approved severances in the area by the Committee of Adjustment and Ontario Municipal Board have led to lots that are smaller in size than what is permitted under the zoning bylaws.
64It is useful to recall that the many reduced frontage lots (7.62m-7.8m) in the area to the south (apparently, according to the West Lansing report, 39% within the Study Area) were created while the prevailing zoning for the northern half of this area required a minimum frontage of 15m. The planning policy trends are moving in a direction which inexorably bring the forces that were at play to the south northward, of which the Property is the most recent example.
65In this regard, the West Lansing report says that the proposed zoning provisions (to set a minimum lot frontage of 7.5m and a minimum lot area of 300 sq.m.) more accurately reflect the existing and emerging lot pattern of the Focused Study Area and are consistent with the in-force and Council-adopted Neighbourhoods policies within the Official Plan (underlining added). That is, the authorization of the smaller lot frontages and areas in the identified area was OP compliant at a time when OPA 320 had been adopted. The report says that the proposed zoning provisions for a portion of the West Lansing neighbourhood respond to the evolving lot pattern within the Focused Study Area while drawing a line between an area in transition, the Focused Study Area, and the remainder of West Lansing, west of Botham Road, which has remained relatively stable in terms of lot sizes. Staff here are demarcating the area of transition as east of Botham Road. The Property is on a portion of Bogert Avenue which is east of Botham Road.
66The Staff Report later goes on to say “Reinvestment into this portion of the neighbourhood (the Focused Study Area) has been facilitated through replacement dwellings and consent applications. As a result of numerous COA (Committee of Adjustment) and OMB decisions approving the severance of lots, the lot pattern has evolved from wider lots to lots with narrower frontages. Over time, the lots with narrower frontages have become the character within this Focused Study Area.”
67Arguably, that same impetus is at play on Bogert Avenue. It might be characterized as an emerging prevailing character trend - a patchwork quilt of one and two story houses, and now townhouses, on lots of varied frontage and area. The policy in Policy 4.1.5 does not stand alone. It must be harmonized with Provincial policy regarding intensification, which is now further reflected in the PMTSA policy initiative, which demands more efficient, denser development in the vicinity of mass transit stations. What all this calls for is an integration of the policy imperatives into a functional whole, which is clearly reflected in the evolving character of this broad neighbourhood area. The proposal here will further implement the trend in a compatible way, consistent with the other small lot singles, not only in the immediate context but within the broader context.
68The City argument here is that Council turned its mind to delineating an area where lot frontage and lot area minima were to be adjusted downward and that the Tribunal should respect that delineation and not step outside of it. In that exercise and its implementation through the zoning amendment, Council purportedly acted in conformity with the OP policies.
69The panel here, at this later point in time, sees what has been put before it as parallel to what was before Council in terms of the evolution of the neighbourhood and its character. The very same bundle of policies which motivated Council to act in a broad brush fashion inform the Tribunal here to act on a site specific basis, which is the nature of its jurisdiction.
CONCLUSION
70The panel here will say that the City position on this appeal was firmly anchored in the Neighbourthoods policy portion of the text of the OP and was cogently presented. The numerical data produced by the City, at first blush, might seem to bear out what could be taken as a dominant character but it screens out the weight of the changes which have been occurring, and are continuing to occur, in both the immediate context and broader neighbourhood. Ms. Steinberg chooses to treat the forthcoming townhouse development on Bogert Avenue as an outlier. Given the historic physical character of the area, the townhouse development is indeed novel but it will exist and impact the character of the street. And there is a further townhouse development in the design approval stage further west on Bogert Avenue. As well, over time the number of small lots has not stabilized or decreased. The fact is that the small lot form has taken a foothold in this neighbourhood and cannot legitimately be considered as aberrant.
71Without casting aspersions on the City case, in this instance, the Tribunal views it as being too conservative and not sufficiently sensitive to the impetus toward intensification and the very clear evolution in this neighbourhood toward smaller lots. In this regard, the visual evidence was of very much assistance to the Tribunal as it demonstrates that the small lot format does indeed ‘fit’. There were plentiful illustrations of the juxtaposition of lots of varying frontage in the photographs of the neighbourhood. In the view of this panel, such juxtapositions did not demonstrate a disruption of the character of the neighbourhood, And it is worth noting that the Tribunal did not have before it the denizens of the area advancing views in opposition to the proposal.
72The Tribunal is satisfied that the proposed land division does not require a plan of subdivision and that the proposal has due regard for the matters enumerated in Section 51(24) of the Planning Act. The Tribunal is also satisfied, on the whole of the evidence, that the requested variances satisfy the four tests set forth in Section 45(1) of the Planning Act.
73In the result, the Tribunal will allow the appeals and will grant provisional consent on the Tribunal’s Standard Consent Conditions (modified by the addition of a condition requested by the Engineering and Construction Services Division) and will authorize the requested variances subject to the condition recommended by Mr. Qi.
DECISION AND ORDER
74The Tribunal ORDERS THAT:
A. The Consent appeal is allowed and provisional consent is granted on the Conditions set forth below.
The Tribunal has considered the provisions of Section 51(24) of the Planning Act and is satisfied that a plan of subdivision is not necessary. The Tribunal therefore consents to the transaction as shown on the plan filed with the Tribunal or as otherwise specified by this Decision and Order, on the condition that before a Certificate of Official is issued, as required by Section 53(42) of the Planning Act, the applicant is to fulfill the following conditions to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment:
(1) Confirmation of payment of outstanding taxes to the satisfaction of the Revenue Services Division, in the form of a statement of tax account current to within 30 days of an applicant's request to the Deputy Secretary-Treasurer of the Committee of Adjustment to issue the Certificate of Official as outlined in Condition 6.
(2) Municipal numbers for the subject lots, blocks, parts, or otherwise indicated on the applicable registered reference plan of survey shall be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services.
(3) One electronic copy of the registered reference plan of survey integrated to NAD 83 CSRS (3 degree Modified Transverse Mercator projection), delineating by separate Parts the lands and their respective areas, shall be filed with, and to the satisfaction of, the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services.
(4) One electronic copy of the registered reference plan of survey satisfying the requirements of the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services shall be filed with the Deputy Secretary-Treasurer of the Committee of Adjustment.
(5) Prepare and submit a digital draft of the Certificate of Official, Form 2 or 4, O. Reg. 197/96, referencing either subsection 50(3) or (5) of the Planning Act if applicable as it pertains to the conveyed land and/or consent transaction to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment.
(6) Where there is no existing street tree, the owner shall provide payment in lieu of planting of one street tree on the City road allowance abutting each of the sites involved in the application. The current cash-in-lieu payment is $583/tree.
(7) Engineering and Construction Services Division & Transportation Services Division (Dated May 27, 2021) 1. The applicant shall submit revised site plan(s) with the following revisions and notations to the satisfaction of the Engineering and Construction Services, at no cost to the City: a. Add a north arrow to the site plan. b. Illustrate the existing and proposed grades at all corners along the property boundary; c. Revise the site plan to illustrate a positive slope of a minimum 2% to a maximum 4% that will be maintained on each of the proposed driveways, as measured between the proposed curb line of Bogert Avenue to the building face; d. Label any portion of driveway to be removed within the right-of-way as to be restored with sod. e. Show and label the proposed driveways and curb cuts within the municipal right-of-way. f. The site plan must be revised to clearly indicate the restoration of the redundant portion of the former driveway and curb cuts with sod and raised concrete curb, all of which shall be designed to municipal standards.
(8) Once all of the other conditions have been satisfied, the applicant shall request, in writing, that the Deputy Secretary-Treasurer of the Committee of Adjustment issue the Certificate of Official.
(9) Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.
B. The variance appeals are allowed and the requested variances are approved subject to the following conditions:
Minor Variance Application: A0296/21NY 1. Submission of a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.
G. Swinkin
Panel Member