Di Marco Legal Services Professional Corporation (Re), 2023 ONTLAB 45

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2023-03-14

22 147241 S45 09 TLAB

Di Marco Legal Services Professional Corporation (Re), 2023 ONTLAB 45

DECISION AND ORDER

Issuance Date: March 14, 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): Di Marco Legal Services Professional Corporation

Applicant(s): First Union

Property Address: 43 Norton Ave

COA File No.: 21 204255 STE 09 MV (A1096/21TEY)

TLAB Case File No.: 22 147241 S45 09 TLAB

Hearing Date(s): November 17, 2022

Decision Delivered By: TLAB Panel Member B. Martin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Name

Representative

Appellant

Di Marco Legal Services Professional Corp.

Applicant

First Union

Expert Witness

M. Rendl

INTRODUCTION AND CONTEXT

1Lidia Nedka is the owner of the property at 43 Norton Avenue. At its meeting on May 4, 2022, the Committee of Adjustment for the City of Toronto refused four minor variances that would have allowed Ms. Nedka to construct a replacement garage on the property.

2A Notice of Appeal was submitted to the Toronto Local Appeal Body by Di Marco Legal Services (Giuseppe Di Marco) on May 16, 2022.

3A hearing to consider the appeal was held on November 17, 2022. At that hearing, I was not able to qualify J. William Birdsell as an expert witness in land use planning. I also questioned whether the four variances originally applied for and considered by the Committee of Adjustment were correct. Upon agreement with counsel, I adjourned the hearing pursuant to Subsection 17.2 of the TLAB’s Rules of Practice and Procedure.

4During the recess period, Mr. Di Marco was to provide:

• A zoning notice from Toronto Building.
• A Site Plan showing landscaping along the entire boulevard.
• Applicable sections of the Property Standards By-law that will ensure the boulevard remains landscaped open space.
• The Committee of Adjustment decision for the front porch addition and copy of the building permit for the front porch.
• The Committee of Adjustment decision for the rear porch addition and copy of the building permit for the rear porch.
• An engineers report that confirms work in place for the front and rear porch additions including pictures of work in place.
• An as built survey of existing garage.

5My review of the December 14, 2022, Zoning Notice, confirmed that two of the variances originally considered by the Committee of Adjustment no longer applied due to revisions to the plans and drawings, and that two remained for the side yard setback for an ancillary building and the requirement for soft landscaping in the rear yard.

6More important, a new variance not considered by the Committee of Adjustment for length of a parking space was identified.

7Following my review, Mr. Di Marco was advised that he would need to retain a qualified expert in land use planning to advise me whether notice of the new variance was required pursuant to Section 18.1, 18.1.1 and 18.2 of the Planning Act and to give expert evidence regarding the new and outstanding minor variances.

8The hearing was reconvened on February 6, 2023. Mr. Martin Rendl was qualified as an expert to give opinion evidence in land use planning.

9Ms. Louise LeBeau, a resident at 46 Norton Avenue who wrote a letter of objection to the Committee of Adjustment on May 4, 2022 was given notice of the hearing and attended.

THE LEGISLATIVE AND POLICY FRAMEWORK

10Provincial 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’).

11Variance – 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

Notice Puruant to Section 18.1, 18.1.1 and 18.2 of the Planning Act

12Mr. Rendl’s expert opinion with respect to Section 18.1, 18.1.1 and 18.2 of the Planning Act was that notice was not needed because the variance requested (a parking space must have a minimum length of 5.6 metres whereas the proposed parking space will have a length of 5.32 metres. [200.5.1.10.(2) Parking Space Dimensions – Minimum) was an existing condition and was not needed as a result of the two other variances identified. Mr. Rendl also advised that the only way to comply with the required minimum length would be to make the required minimum width length of the proposed garage non-compliant.

Minor Variances

13Based on his planning analysis, Mr. Rendl’s professional land use planning opinion was that:

• The proposal does not raise any issues of provincial significance, nor does it impact any policies of the Provincial Policy Statement, 2020 (the “PPS”) or the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”).
• The minor variances before the TLAB meet the four tests of Section 45(1) of the Planning Act.
• They are appropriate for the development of the property at 43 Norton Avenue.
• The variances are minor and create no undue adverse impacts on nearby properties.
• The variances maintain the general intent and purpose of the Official Plan and Zoning Bylaw.

14The property is located near the intersection of Dufferin Street and St. Clair Avenue West. Norton Avenue is one block north of St. Clair Avenue and one block west of Dufferin Street.

15It is a corner property, located on the southeast corner of Norton Avenue and St. Clair Gardens.

16It is currently developed with a two-storey semi-detached dwelling with an old, detached garage in the rear yard. As a corner lot, the garage has its driveway access from the flanking street, St. Clair Gardens.

17It is rectangular in shape and has the following characteristics:

• Lot Width/Frontage: 5.874 m (19 ft.)
• Lot Depth: 22.85 m (75 ft.)
• Lot Area: 134 m2 (1,444 sq. ft.)

18It is smaller in area and width than the adjacent properties and relatively small in lot area.

19The houses in this neighbourhood are generally semi-detached or detached two storey dwellings. The neighbourhood has a tight lot fabric with narrow side yards and generally relatively shallow lots. Most blocks contain public lanes lined with garages.

2041 Norton Avenue is the adjacent semi-detached dwelling to the east. It has a detached garage in its rear yard.

215 St. Clair Gardens, a two-storey multi unit apartment, is located adjacent to the south of the Subject Site.

22The area is a mature established and stable neighbourhood.

23The Subject Site is designated Neighbourhoods in the City Official Plan. This designation permits residential uses in a wide range of low-density buildings including detached, semidetached houses, duplexes, triplexes and townhouses and four storey walk-up apartments.

24The Subject Site is zoned R (d0.6: x742) Residential Zone in Zoning By-law No. 569-2013 which permits ancillary buildings such as detached garages.

25Mr. Rendl assessed the required variances against criteria 4.1.5(g) prevailing patterns of rear and side yard setbacks and landscaped open space in the Official Plan.

26His opinion was that the variances for the proposed garage maintain the general intent and purpose of the Official Plan’s applicable development criteria and policies for development in Neighbourhoods.

27He stated that the prevailing pattern on corner lots in the neighbourhood is the location of garages in the rear yard with access from the flanking street. The proposal is consistent with this prevailing neighbourhood pattern on corner lots with detached garages that have minimal side and rear yard setbacks and limited open space in the rear yard. Furthermore, the proposed garage retains the current location of the existing garage on the lot in relation to the adjacent properties and maintains the current streetscape on St. Clair Gardens.

28In his opinion, the variances for the construction of a replacement garage does not constitute a change that threatens the stability of the neighbourhood, something that is a key focus of the Official Plan’s policies for Neighbourhoods.

29It was Mr. Rendl’s opinion that the requested variances maintain the general intent and purpose of Zoning Bylaw 569-2013.

Soft Landscaping

30The general intent and purpose of soft landscaping is to complement the hard surface areas in the rear yard. Soft landscaping also assists the infiltration of rainwater into the ground.

31The Zoning By-law requires 11.21 m2 of soft landscaping in the rear yard of the Subject Site whereas 2.7 m2 of soft landscaping is proposed.

32The current rear yard provides little opportunity for a significant amount of soft landscaping.

33The house has an existing 3.0 m deep rear porch as shown below on the west elevation and an existing 1.8 m wide set of stairs to the basement of the house. The proposed garage is 5.77 m wide.

34This leaves an area 4.38 m in length by 0.62 m wide available for landscaping running along the north side of the garage between the garage and the stairs. This area of soft landscaping is 2.7 m2 or 6% of the rear yard.

35The proposed 6% soft landscaping in the rear yard reflects the existing and proposed structures in the rear yard and their functions.

Setbacks

36The current garage has minimal setbacks from its lot lines. It has a 0.85 m west side yard setback from the street and a 0.36 m rear yard setback.

37The Zoning By-law requires a garage on a corner lot to have a 6.0 m setback from the street abutting the side yard, in this case the St. Clair Gardens side lot line.

38The Subject Site is 5.874 m in width, making it impossible for a garage to comply with the 6.0 m minimum setback.

39The proposed 0.13 m side yard setback maintains the existing garage’s current minimal setback from the adjacent street, St. Clair Gardens and together with Variance 3, allows for a parking space inside the garage.

40The visual impact of this setback of the garage is mitigated by the 4.95 m wide boulevard on St. Clair Gardens.

Length of a Parking Space

41The minimum length for a parking space is 5.6 m. The Subject Site is only slightly wider at 5.874m.

42The proposed garage has a length of 5.73 m. The east and west walls of the garage are each approximately 0.18 m thick. This leaves only approximately 5.37 m available inside the garage for a parking space. The proposed parking space is 5.32 m in length, a size that fits inside the garage.

43The 5.32 m parking space length is sufficient to accommodate a vehicle. For example, a typical SUV is about 4.9 m in length and the average car is about 4.5 m in length.

44The general intent and purpose of the Zoning By-law is to be able to park a vehicle in the parking space which the 5.32 m length of the parking space accommodates. The variance, therefore, meets the general intent and purpose of the Zoning By-law.

45The requested variances are desirable for the appropriate development of 43 Norton Avenue. They will allow a development that is appropriate for the property and compatible with the neighbourhood. The existing garage is in poor condition and will be replaced with a new detached garage that is both an aesthetic and functional improvement over the current condition. The proposed garage is also located in the same general location as the existing garage thereby maintaining the current arrangement of structures on the site and relationship with the two adjacent residential properties and buildings at 41 Norton Avenue adjacent to the east and 5 and 5A St. Clair Gardens.

46Mr. Rendl advised TLAB that the generally acknowledged test of whether a variance is minor is the nature and extent of any undue adverse impacts on adjacent properties. It is not a mathematical test based on the percentage by which the variance differs from a by-law standard. In his opinion, the variances individually and cumulatively do not create any undue adverse impacts and are therefore minor.

ISSUES AND ANALYSIS

47I agree with Mr. Rendl’s expert testimony regarding notice, conformity with provincial policy, and I am satisfied that the variances meet all of the four tests under s. 45(1) of the Planning Act.

48I did invite Ms. LeBeau to share her concerns about the proposed variances. In her comments to me, as in her comments to the Committee of Adjustment, her complaints had more to do with the disrepair of the existing house and the unfinished front and rear porches. I too was concerned about these issues which is why I adjourned the hearing on November 17, 2023.

49She also shared her concerns about the boulevard being used to park cars, which I was able to view using Google Street View. This too was a concern of mine.

CONCLUSION

50A decision by the Committee of Adjustment to not approve minor variances that would allow the construction of a new (replacement) rear yard garage at 43 Norton Avenue was appealed to TLAB.

51I heard uncontested evidence from a qualified expert witness in land use planning that the requested variances conformed with provincial policy and met the four tests under s. 45(1) of the Planning Act.

52I agree with the expert witness’s testimony.

53I am however, very concerned about the issues raised by neighbouring property owners about long standing property standards issues at 43 Norton Avenue.

DECISION AND ORDER

54The appeal with respect to the minor variances identified by Toronto Building in its Zoning Notice for the property at 43 Norton Avenue dated December 14, 2022 is granted subject to the following:

1. A building permit for the proposed garage will not be issued until all existing open building permits for the property at 43 Norton Avenue are closed by Toronto Building.
2. A building permit for the proposed garage will not be issued until the owner applies for and has planted boulevard trees on the west side of the property.
3. The owner Obtain a municipal road damage deposit permit prior to the start of construction of the garage.

B. Martin

Panel Member