Minz v. Fadali, 2023 ONTLAB 37

Toronto Local Appeal Body

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

Date:

2023-03-06

22 172809 S45 15 TLAB 22 172812 S53 15 TLAB 22 172814 S45 15 TLAB

Minz v. Fadali, 2023 ONTLAB 37

DECISION AND ORDER

Issuance Date:

March 6, 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):

P. Minz

Applicant(s):

Richard Wengle Architect Inc

Property Address:

92 Arjay Cres

COA File No.:

22 109436 NNY 15 CO (B0009/22NY) 22 109710 NNY 15 MV (A0096/22NY) 22 109711 NNY 15 MV (A0095/22NY)

TLAB Case File No.:

22 172809 S45 15 TLAB 22 172812 S53 15 TLAB 22 172814 S45 15 TLAB

Hearing Date:

January 17, 2023

Decision Delivered By:

TLAB Vice-Chair A. Bassios

Registered Parties:

Applicant

Richard Wengle Architect Inc

Appellant

P. Minz

Appellant’s Legal Rep.

I. Andres

Party (TLAB)

L. Fadali

Party’s Legal Rep.

Aird & Berlis LLP (M. Helfand)

Expert Witness

M. Goldberg

Participant

S. H. McDowell

INTRODUCTION AND CONTEXT

1This Hearing arises from an Appeal by Mr. Minz of the decisions of the Toronto (City) Committee of Adjustment (COA) to approve a consent to sever and multiple variances for the property known as 92 Arjay Cres, (the subject property).

2The property is designated Neighbourhoods and zoned RD(f18.0;a690)(x863) under Zoning By-law 569-2013 and R3 under the former North York Zoning By-law 7625.

3Prior to the scheduled hearing date, the Parties achieved a settlement. The settlement brings forward a list of variances revised from those that were approved by the COA.

4The Appellant's concerns were directly related to the retention and health of trees which are located in proximity to their shared lot line.

5Mr. Helfand, representing the Owner, Mr. Fadali, objected to the participation of Mr. McDowell in the Hearing as Mr. McDowell had not filed a Witness Statement.

6I ruled that I would hear from Mr. McDowell, who is a registered Participant, but acknowledged that he had not given the other Parties notice of his concerns as he is required to do.

THE REQUESTS:

CONSENT TO SEVER:

CONVEYED - PART 1

7Address to be assigned

8The lot frontage is 20.28m and has a lot area of 1,461.22m².

RETAINED - PART 2

9Address to be assigned

10The lot frontage is 19.52m and has a lot area of 1,067.94m².

VARIANCES:

[11]

Below is a table showing requested changes to the variances approved by the COA.

12No variances to the Zoning By-law are required to enable the consent to sever. The resulting lots are zoning compliant.

13In the interest of consensual resolution of disputes, deference will be given to a settlement, provided that the joint submission falls within the reasonable range of outcomes. I note that, as a settlement, this case has no precedential or referential value since any findings of fact are for the limited purpose of ensuring that the settlement is not contrary to the Planning Act.

14I advised those present at the Hearing that I had attended at the site and the surrounding area and that I had reviewed the pre-filed materials in preparation for the hearing of their evidence.

THE LEGISLATIVE AND POLICY FRAMEWORK

15Provincial 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’).

16Consent – S. 53

TLAB 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).

17Variance – 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

18Acknowledging the Participant's continued opposition, this is nonetheless a Hearing for the purposes of approving a consent to sever and a revised set of variances that have been agreed to by the Parties.

Mr. Goldberg

19Mr. Goldberg provided evidence in support of the settlement.

20He described the neighbourhood as an enclave of very large lots that have mostly been redeveloped with generally large custom designed homes.

21He provided the background and history of the applications, explained the changes that had been made to the proposal to resolve Mr. Minz's concerns, and presented the revised architectural plans, revised variance list and a comparison table of variances. (Exhibit 1).

22Mr. Goldberg provided a description of the proposal in relation to the requirements of s.51(24) and provided commentary on each of the requested variances.

Mr. McDowell

23I heard briefly from Mr. McDowell. He expressed his concerns as follows:

• His issues have not been acknowledged by Mr. Goldberg.

• There have been groundwater issues in the neighbourhood over the years.

• There will be shade cast on his back yard.

• "Nobody within the planning process seems to be concerned with maintaining standard setbacks".

ISSUES AND ANALYSIS

OBJECTIONS

24I shall first provide a brief response to the concerns expressed by Mr. McDowell.

25Mr. McDowell occupies one of the original houses on Arjay Cres. Growth and change in the neighbourhood are to be expected and the generous lots of Arjay Cres are attractive for redevelopment. The Zoning By-law represents parameters of development that can be permitted as of right; it is not intended to be an "ideal" but rather a threshold beyond which appropriate development within the planning context must be reviewed, often through the process of application for variances and consents.

26In an urban context, some shadowing from redevelopment of neighbouring properties is to be expected. In this case, there is no discernible incremental impact from the granting of the variances beyond that which would result from a zoning compliant proposal.

27Mr. McDowell's concerns regarding groundwater are not within the purview of the TLAB and are within the mandate of City staff through the building permit process.

CONSENT TO SEVER (S. 53(1) AND 51(24))

28I am satisfied that a plan of subdivision is not required pursuant to s. 53(1) of the Planning Act as the proposal is a division of the existing legal lot in a long-established area. No adaptation or construction of public infrastructure is required.

29Criterion (c) and (f) in s. 51(24) require that a consent to sever conforms to the Official Plan, and that regard must be had for the dimensions and shapes of the proposed lots.

30The proposed lots do not require variances for lot frontage or for lot area and are conforming lots with appropriate street access and configuration.

31I am satisfied that the proposal has due regard for the requirements of the Planning Act.

THE FOUR TESTS (S.45(1))

THE OFFICIAL PLAN

32Mr. Goldberg's Expert testimony referenced applicable Official Plan policy and OP Policy 4.1.5 in particular.

33On the basis of the evidence provided, I accept Mr. Goldberg’s advice and opinion that the applications meet the general intent and purpose of the Official Plan.

THE ZONING BY-LAW (HARMONIZED. 569-2013)

Side Yard Setbacks

34The side yard setback variances are located between the two proposed new houses only.

35The "saw-toothed" side wall of each proposed dwelling means that the reduced setback applies to only certain pinch points and the rest of the side yards comply with the minimum standard set by the By-law.

36In order to maintain the alignment of the side wall/ side yard setbacks as justified, the TLAB standard condition requiring construction in substantial accordance with the submitted plans will be imposed.

DRIVEWAY WIDTH

37The proposed driveway width is in keeping with the character of the neighbourhood and is suitable for the large lots proposed.

MAIN WALL HEIGHT

38Both proposed dwellings conform to the maximum building height provision in the Zoning By-law.

39The side exterior main walls heights are in character and scale for the neighbourhood and Immediate Context.

BUILDING LENGTH

40The proposed building length for the house on the east lot (Part 2) has been reduced by a small amount from that which was approved by the COA.

41Building lengths are measured aboveground and belowground. Some part of the building lengths for each of the proposed houses will be located entirely belowground.

42The size of the proposed lots and the location of part of the length of the proposals belowground reduce any potential massing impact to the adjacent neighbours and the streetscape.

43The variance for building length (and all the variances) will be granted subject to the same condition described above so that the massing of the proposal is contained in accordance with what is described in the plans.

BUILDING DEPTH

44The overall building depth for the east lot has been reduced as a result of the settlement.

45The reduced building depth facilitates the retention and health of the trees located at the rear of the back yards.

46As in the case of the requested building length, the rear portion of each house is proposed to be entirely belowground mitigating visible impact.

REAR YARD SETBACK

47The perceived rear yard is larger than the measured rear yard setback since the rear portion of each house is belowground.

48The irregular shape of the rear yard of each lot causes "pinch points" at the corners of each proposed dwelling.

49The rear yards are screened and protected from view by the existence and protection of mature trees that line the rear property line of each lot.

LOT COVERAGE

50The rear yards remain generous under the proposed lot coverage and accommodate the landscaping requirements of the By-law.

51The lot coverages are in keeping with the character of the neighbourhood and Immediate Context.

ZONING BY-LAW (FORMER NORTH YORK 7625)

BUILDING HEIGHT

52This variance is required as the maximum building height provision of the harmonized City of Toronto Zoning By-law remained under appeal at the time the application was filed.

53The former North York Zoning By-law measured height from the centreline of the street. The harmonized By-law measures height from a calculated established grade on the lot.

54The overall height complies with the maximum height provision of the updated By-law.

FIRST FLOOR HEIGHT

55The height of the first floor is determined in relation to the centreline of the street in the former North York By-law.

56A variance to the updated harmonized Zoning By-law is not required.

TESTS FOR “MINOR” AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND

57On the basis of the evidence submitted and my findings above, I find that there is no undue adverse impact from the proposed development and that the development is desirable for the use of the land.

NOTICE

58I find that the revisions that have been made to the applications that were previously considered by the COA to be beneficial. The change to the requested variances for lot coverage, maximum building length and maximum building depth for the east lot represent a reduction to the magnitude of the variances requested.

59I find that no further notice is required in accordance with s.45(18.1.1) of the Planning Act.

CONCLUSION

60I find that the proposed settlement is not contrary to the Planning Act and is within the range of reasonable outcomes.

DECISION AND ORDER

61The Appeal is allowed in part.

62The application for consent to sever is approved subject to the conditions contained in Appendix A.

63The variances to the Zoning By-laws set out in Appendix B are authorized, subject to the conditions contained therein.

A. Bassios

Panel Member

APPENDIX A

APPROVED SEVERANCE:

CONVEYED - PART 1

64Address to be assigned

65The lot frontage is 20.28m and has a lot area of 1,461.22m².

RETAINED - PART 2

66Address to be assigned

67The lot frontage is 19.52m and has a lot area of 1,067.94m².

CONDITIONS OF SEVERANCE:

68Schedule A: Standard Consent Conditions

The Consent Application is approved on Condition

The TLAB has considered the provisions of Section 51(24) of the Planning Act and is satisfied that a plan of subdivision is not necessary. The TLAB therefore consents to the transaction as shown on the plan filed with the TLAB 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) 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.

(7) Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.

APPENDIX B

APPROVED VARIANCES:

Part 1- West Lot (A0096/22 NY)

1. Chapter 900.3.10.(8), Exception RD 863, By-law No. 669-2013

The minimum side yard setback is 1.8 metres.

The proposed east side yard setback is 1.2 meters.

2. Chapter 10.5.100.1.(1), By-law No. 569-2013

The maximum permitted driveway width is 3.35 meters.

The proposed driveway width is 4.57 meters.

3. Chapter 10.20.40.10.(2)B)(ii), By-law No. 569-2013

The permitted maximum height of ail side exterior main walls facing a side lot line is 7.5

metres. The proposed height of the side exterior main walls facing a side lot line is 8.05

metres.

4. Chapter 10.20.40.20(1), By-law No. 569-2013

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the

permitted maximum building length for a detached house is 17.0 metres.

The proposed building length is 25 metres.

5. Chapter 10.20.40.30.(1), By-law No. 569-2013

The permitted maximum building depth for a detached house is 19.0 metres.

The proposed building depth is 26.46 metres.

6. Chapter 10.20.40.70.(2)A), By-law No. 569-2013

The required minimum rear yard setback is 14 metres.

The proposed rear yard setback is 12.57 metres.

7. Chapter 10.20.30.40.(1 )A), By-law No. 569-2013

The permitted maximum lot coverage is 35 percent of the lot area.

The proposed lot coverage is 37.3 percent of the lot area.

8. Section 12.7, By-law No. 7625

The maximum permitted building height is 8m.

The proposed building height is 10.27m.

9. Section 6(30)a, By-law No. 7625

The maximum finished first floor height is 1.5m.

The proposed finished first floor height is 2.03m.

Part 2 – East Lot (A0095/22 NY)

1. Chapter 900.3.10.(A), Exception RD 863, By-law No. 569-2013

The minimum front yard setback is 14.0 metres.

The proposed front yard setback is 13.29 meters.

2. Chapter 900.3.10.(B), Exception RD 863, By-law No. 569-2013

The minimum side yard setback is 1.8 metres.

The proposed South West side yard setback is 1.25 meters.

3. Chapter 10.5.100.1.(1), By-law No. 569-2013

The maximum permitted driveway width is 3.35 meters.

The proposed driveway width is 5 meters.

4. Chapter 10.20.30.40.(1 )A), By-law No. 569-2013

The permitted maximum lot coverage is 35 percent of the lot area.

The proposed lot coverage is 40.33 percent of the lot area.

5. Chapter 10.20.40.70.(2)A), By-law No. 569-2013

The required minimum rear yard setback is 11.11 metres.

The proposed rear yard setback is 7.5 metres.

6. Chapter 10.20.40.20(1), By-law No. 569-2013

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the

permitted maximum building length for a detached house is 17.0 metres.

The proposed building length is 24.76 metres.

7. Chapter 10.20.40.30.(1), By-law No. 569-2013

The permitted maximum building depth for a detached house is 19.0 metres.

The proposed building depth is 25.02 metres.

8. Chapter 10.20.40.10.(2)B)(ii), By-law No. 569-2013

The permitted maximum height of all side exterior main walls facing a side lot line is 7.5

metres. The proposed height of the side exterior main walls facing a side lot line is 10

metres.

9. Section 12.7, By-law No. 7625

The maximum permitted building height is 8 metres.

The proposed building height is 11.31 metres. [12.7 - Maximum Building Height]

10. Section 6(30)a, By-law No. 7625

The maximum finished first floor height is 1.5 metres.

The proposed finished first floor height is 2.41 metres.

CONDITIONS:

Part 1 - (West Lot)

1. The proposed dwelling shall be constructed substantially in accordance with the Site Plan, Front Elevation, Rear Elevation, South Elevation, and North Elevation, prepared by Richard Wengle Architect, dated December 08, 2022 and attached hereto.

2.Submission of a complete application for a permit to injure or remove

privately owned tree(s), as per City of Toronto Municipal Code Chapter

813, Trees Article III Private Tree Protection.

3. No excavation, machinery, equipment or material storage shall be permitted within the Tree Protection Zone as shown on the revised site plan extract attached below (the red line where the 4’ hoarding is to be erected).

Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.

Part 2 - (East Lot)

1. The proposed dwelling shall be constructed substantially in accordance with the Site Plan, Front Elevation, Rear Elevation, South West Elevation, and North East Elevation, prepared by Richard Wengle Architect, dated December 08, 2022 and attached hereto.

2.Submission of a complete application for a permit to injure or remove

privately owned tree(s), as per City of Toronto Municipal Code Chapter

813, Trees Article III Private Tree Protection.

3. No excavation, machinery, equipment or material storage shall be permitted within the Tree Protection Zone as shown on the revised site plan extract attached below (the red line where the 4’ hoarding is to be erected).

Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.

DRAWINGS PART 1

DRAWINGS PART 2

Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.