Souresrafil v. Toronto (City), 2023 ONTLAB 42

Toronto Local Appeal Body

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

Date: 2023-03-13

21 216352 S53 18 TLAB 21 216353 S45 18 TLAB 21 216354 S45 18 TLAB

Souresrafil v. Toronto (City), 2023 ONTLAB 42

DECISION AND ORDER

Issuance Date: March 13, 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): SINA SOURESRAFIL

Applicant(s): SINA SOURESRAFIL

Property Address: 171 ELMWOOD AVE

COA File No.: 21 142835 NNY 18 CO (B0023/21NY) 21 142849 NNY 18 MV (A0308/21NY) 21 142853 NNY 18 MV (A0309/21NY)

TLAB Case File No.: 21 216352 S53 18 TLAB 21 216353 S45 18 TLAB 21 216354 S45 18 TLAB

Hearing Date(s): April 6, 2022, June 2, 2022, September 15, 2022, September 21, 2022

Deadline Date for Closing Submissions/Undertakings: February 28, 2023

Decision Delivered By: TLAB Panel Member S. Makuch

REGISTERED PARTIES AND PARTICIPANTS:

People Type	Name	Representative
Appellant/Applicant	S. Souresrafil	A. Stewart
Party	City of Toronto	M. Hardiejowski, U. Gautam
Expert Witness	M. Romero
Expert Witness	F. Romano

INTRODUCTION AND CONTEXT

1This is an appeal related to the severance of 171 Elmwood Ave into two lots in the Willowdale area of North York to permit the construction of a detached dwelling on each lot. The Committee of Adjustment refused the severance and variances on the advice of City Staff and the City appeared at the hearing as the only party in opposition to the appeal. The variances ultimately requested are found in Appendix 1. They include: frontage, side yard setbacks, lot area, coverage, and height. However, of primary concern was frontage, and side yard setbacks. Of particular concern was the proposed reduction in lot footage from the required 15 m to 9.14 and the reduction in side yard setbacks from 1.80 to 1.22 m.

THE LEGISLATIVE AND POLICY FRAMEWORK

2Provincial 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’).

3Consent – 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).

4Variance – 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

5The evidence was provided by two planners both qualified to give expert opinion evidence. Mr. Romero for the City and Mr. Romano for the applicant.

6Mr. Romero’s original staff report summarized his concerns with respect to frontage, size and side yard setbacks. Height and coverage were not an issue for him. His report included the following:

The subject property is designated Neighbourhoods in the City of Toronto Official Plan. Neighbourhoods are considered physically stable areas where new development will respect and reinforce the existing physical character of the neighbourhood. Section 4.1 outlines the development policies for Neighbourhoods. The preamble to the development criteria states that "physical changes to our established Neighbourhoods must be sensitive, gradual and 'fit' the existing physical character".

7Policy 4.1.5 of the development criteria for Neighbourhoods requires that "development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

b) prevailing size and configuration of lots; and

g) prevailing patterns of rear and side yard setbacks and landscaped open space".

8The Plan outlines that the geographic neighbourhood is delineated by considering the context within the Neighbourhood in proximity to the proposed development, including: zoning, and lot size and configuration. The Official Plan states that no changes will be made through re-zoning, minor variance, consent, or other public action that are out of keeping with the overall physical character of the entire Neighbourhood.

9Policy 4.1.5 of the Neighbourhoods policies in the Official Plan states that the physical character of the geographic neighbourhood includes: "both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context)".

10The policy goes on to state that: "Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance".

11The immediate context includes the same block and the block opposite the proposed development that faces the same street, directly north. The immediate context comprises lots that are zoned RD(f15.0; a550)(x5).

12Lot frontage and lot area standards are established in order to achieve a consistent streetscape and pattern of development. The application proposes to create two new lots with a frontage of 9.14 metres and lot areas of approximately 366 square metres.

13In Mr. Romero’s opinion the proposal does not respect and reinforce the physical character of the application because of its lot frontage, size, and sideyard setbacks.

14He gave evidence to support that conclusion. The immediate context, which includes the subject block and the abutting north side block, includes 21 lots, but only one lot with a frontage of 9.1 metres and comparable lot area of 367 square metres, located at 174 Elmwood Avenue.

15The remaining 20 lots have a frontage that is 10.7 metres or greater, including 14 with a frontage that complies with the minimum lot frontage requirement of 15.0 metres. He also noted that of these remaining lots the majority have lot areas of approximately 430 square metres or greater, including 14 that comply with the minimum lot area requirement of 550 square metres.

16Although there are lots with smaller frontages and lot areas within the surrounding area, it was his opinion that lots with a frontage of 9.14 metres and lot area of 367 square metres do not form the prevailing physical character within the immediate context. He was opposed to the side yard setback variances although the interior setbacks were increased to 1.22 from .55 and .61.

17It was this opinion that this reduction in the size of the lot footage and the size of the setbacks would result in development which was not conform with the official plan.

18Mr. Romano did not agree with Mr. Romano’s numerical calculations. It was his opinion, however, that such calculations are not the sole basis for the conclusion of whether variances respecting frontage and setbacks.

19In his view that the determination of whether the variances respected and reinforced the character of the area was subjective exercise and should not be based simply on a mathematical calculation.

20In his opinion the area had a mixture of lot frontages (as indicated by Mr. Romero’s evidence) but the proposed 9.14 would not stand out and thus would fit the character which was one of a mixture of lot frontages. Moreover, in his opinion, the side yard setbacks, as increased, would also fit the character of the area.

21Mr. Romano also concluded that the decrease in lot size did not adversely impact the character of the area as lot size was not easily determined or visible from the street.

22In summary, Mr. Romano had a different opinion than that of Mr. Romano, on the impact of the variances which reduced frontage of the proposed lots and the side yard setbacks. He said the frontages did respect and reinforce the character of the area because they did not stand out as significantly different in the mixture of other frontages in the area and the proposed side yard setbacks as revised were in keeping with other such setbacks in the area. In his opinion, the other variances had no impact on the character of the area.

ISSUES AND ANALYSIS

23I find that the issues were related primarily to the frontage and side yard setbacks. Lot size was not a significant issue as I find that lot size was not easily visible or determined from the street and therefore I find could not significantly affect the character of the area.

24With respect to side yard setback, the revision of those setbacks resulted in them fitting into the rhythm of the street and having no negative impact on the area’s character. They, therefore, would respect and reinforce the character of the area.

25Finally, I prefer Mr. Romano’s opinion in this case and find that the proposed lot frontage, although smaller than all but one lot, would be similar enough to some lots so that it would respect and reinforce the mixture of frontages in the neighbourhood.

26I am obliged under the Planning Act to determine if the variance respecting frontage maintains the “general intent “of the Official Plan, which is (as Mr. Romero refers to this in his evidence above, and Mr. Romano concurs) is to respect and reinforce the physical character of the area.

27This does not require a detailed evaluation of the numerical requirements of particular sections of the Official Plan but rather is met by undertaking a general and subjective review to ascertain whether a variance meets that general intent. This lot frontage variance provides for a frontage which will not be noticeable, and will “fit” among the various frontages on the street, some of which are similar in width. It will, therefore, respect and reinforce the physical character of the area. In undertaking this analysis I am applying criteria similar to those I used in my decision concerning 338 Horsham Ave. in which both the same witnesses gave similar evidence; even though I recognize that I am not bound by that decision. I recognize as well that in certain cases the determination of “general intent” could require the application of numerical standards set out in the Official Plan. I am not persuaded, however that this is such a case.

28Having concluded that the variances respecting lot size, side yard setbacks and frontage maintain the general intent of the Official Plan and that lot coverage and height are not in issue I find that the variances should be granted. The general intent of the zoning bylaw is to implement the Official Plan. Since the general intent of the Plan is met so is the general intent of the zoning Bylaw. The evidence of Mr. Romano that there is no adverse physical impact from the granting of the variances and lack of any party objecting to the variances all indicate that the variances are appropriate and minor.

29I therefore find the variances, including the frontage variances, should be granted. Having made such a finding I conclude that there is no basis upon which to refuse to grant the severance as the lot frontage variance is the only variance required for the severance and the evidence was that no plan of subdivision is necessary.

CONCLUSION

30I find the appeals should be allowed and the variances and consent should be granted subject to standard conditions.

DECISION AND ORDER

31The appeal is hereby allowed and the variances set out in Appendix 1 and the consent approved subject to the conditions set out in the Appendices 2 and 3 below.

S. Makuch

Panel Member

APPENDIX 1

LIST OF VARIANCES - 171 ELMWOOD AVENUE

PART 1 – WEST LOT

1. Chapter 10.20.30.40.(1)(A), By-law No. 569-2013 The maximum permitted lot coverage is 30.0% of the lot area. The proposed lot coverage is 31.8% of the lot area.

2. Chapter 10.20.30.10.(1)(A), By-law No. 569-2013 The minimum required lot area is 550.0m². The proposed lot area is 366.49m².

3. Chapter 10.20.30.20.(1)(A), By-law No. 569-2013 The minimum required lot frontage is 15.00m. The proposed lot frontage is 9.14m.

4. Chapter 900.3.10.(5)(A), By-law No. 569-2013 The minimum required side yard setback is 1.80m. The proposed east side yard setback is 1.2m.

5. Chapter 900.3.10.(5)(A), By-law No. 569-2013 The minimum required side yard setback is 1.80m. The proposed west side yard setback is 1.2m.

6. Chapter 10.5.40.50.(2), By-law No. 569-2013 A platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3m of a building, must comply with the required minimum building setbacks for the zone; in this case 1.8m. The proposed side yard setback to the front yard porch is 1.2m.

7. Section 13.2.6, By-law No. 7625 The maximum permitted building height is 8.80m. The proposed building height is 8.88m.

PART 2 – EAST LOT

1. Chapter 10.20.30.40.(1)(A), By-law No. 569-2013 The maximum permitted lot coverage is 30.0% of the lot area. The proposed lot coverage is 31.8% of the lot area.

2. Chapter 10.20.30.10.(1)(A), By-law No. 569-2013 The minimum required lot area is 550.0m². The proposed lot area is 366.57m².

3. Chapter 10.20.30.20.(1)(A), By-law No. 569-2013 The minimum required lot frontage is 15.00m. The proposed lot frontage is 9.14m.

4. Chapter 900.3.10.(5)(A), By-law No. 569-2013 The minimum required side yard setback is 1.80m. The proposed west side yard setback is 1.2m.

5. Chapter 900.3.10.(5)(A), By-law No. 569-2013 The minimum required side yard setback is 1.80m. The proposed east side yard setback is 1.2m.

6. Chapter 10.5.40.50.(2), By-law No. 569-2013 A platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3m of a building, must comply with the required minimum building setbacks for the zone; in this case 1.8m. The proposed side yard setback to the front yard porch is 1.2m.

7. Section 13.2.6, By-law No. 7625 The maximum permitted building height is 8.80m. The proposed building height is 8.88m.

APPENDIX 2

Conditions of Minor Variance Approval

1. The owner shall submit a complete application for a permit to injure or remove City owned tree(s) and privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Articles II and III.

2. The owner shall submit revised site plan(s) with the following revisions and notations to the satisfaction of the Engineering and Construction Services and Transportation Services, at no cost to the City;

   1. Illustrate the existing and proposed grades at all corners along the property boundary.

   2. Add the following notations to the Site Plan:

i. "All portions of existing access driveways that are no longer required must be closed and restored with soft landscaping and full concrete curbs, to the satisfaction of Transportation Services".

ii. The proposed new driveways shall be constructed to the applicable City of Toronto Design Standards at no cost to the municipality".

iii. "The applicant shall also submit a Municipal Road Damage Deposit (MRDD) prior to obtaining a Building Permit." The applicant is advised to contact Right-of-Way Management Section at (416) 395-7112 regarding municipal road damage deposit requirements;"

iv. "The applicant shall obtain the necessary authorizations and permits from the City's Right-of-Way Management Section of the Transportation Services before excavating within or encroaching into the municipal road allowance".

Part 1 – West Lot

3. The proposed dwelling shall be constructed substantially in accordance with the following drawings prepared by Brickhaus Residential Design attached in Appendix 4 and :

a. Site Plan, drawing A0, dated November 2020, revision date 03/16/22.

b. Front Elevation drawing A6, dated November 2020, revision date 03/16/22.

c. Rear Elevation drawing A7, dated November 2020, revision date 03/16/22.

d. Side Elevation drawing A8, dated November 2020, revision date 03/16/22.

e. Side Elevation drawing A9, dated November 2020, revision date 03/16/22.

Part 2 – East Lot

4. The proposed dwelling shall be constructed substantially in accordance with the following drawings prepared by Brickhaus Residential Design attached in Appendix 4 and :

a. Site Plan, drawing A0, dated November 2020, revision date 03/16/22.

b. Front Elevation drawing A6, dated November 2020, revision date 03/16/22.

c. Rear Elevation drawing A7, dated November 2020, revision date 03/16/22.

d. Side Elevation drawing A8, dated November 2020, revision date 03/16/22.

e. Side Elevation drawing A9, dated November 2020, revision date 03/16/22.

APPENDIX 3

Conditions of Consent Approval

(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 4