Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
2023-03-27
22 133619 S45 20 TLAB
22 133620 S45 20 TLAB
22 133622 S45 20 TLAB
Well River Estates Ltd. v Toronto (City), 2023 ONTLAB 52
DECISION AND ORDER
Issuance Date:
March 27, 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):
WELL RIVER ESTATES LTD.
Applicant(s):
WELL RIVER ESTATES LTD.
Property Address:
94 DANFORTH RD
COA File No.:
21 245560 ESC 20 MV (A393/21SC)
21 245548 ESC 20 MV (A0396/21SC)
21 245541 ESC 20 MV (A0397/21SC)
TLAB Case File No.:
22 133619 S45 20 TLAB
22 133620 S45 20 TLAB
22 133622 S45 20 TLAB
Hearing Date(s):
February 1, 2023
Decision Delivered By:
TLAB Panel Member S. Makuch
REGISTERED PARTIES AND PARTICIPANTS:
People Type
Name
Representative
Appellant / Owner
Well River Estates Ltd.
Party
City of Toronto
S. Amini
Party
City of Toronto
C. McKeich
Expert Witness
B. Mahjoubi
INTRODUCTION AND CONTEXT
1This is an appeal respecting a proposal to construct a new three-storey, detached dwelling on a newly severed lot ( 94 Danforth Road ) zoned detached residential (RD). A number of other variances were approved for the building concurrently with the consent and the only variance before TLAB on this appeal is to permit the dwelling to be 3 storeys; whereas the bylaw only permits a building of only 2 storeys in this detached residential zone. The Committee of Adjustment had refused the variance.
THE LEGISLATIVE AND POLICY FRAMEWORK
2Variance – 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
3The evidence was provided by two witnesses, Mr. Pang, the owner, in favour of the appeal and Ms. Mahjoubi, a City planner in opposition. Mr. Pang was not qualified to give expert opinion evidence; while Ms. Mahjoubi was so qualified.
4Mr. Pang stated that his wife died and that he could not afford to retain a lawyer or planner but he was prepared to proceed with the hearing. Although the City’s witness statement was filed late, he further stated he had all the evidence that he needed for the hearing.
5Mr. Pang gave evidence which may be summarized as follows: He agreed that the dwelling was 3 storeys plus a basement and had the appearance of a 4 storey building from the street. This appearance was the result, he said, of a slope at the rear of the lot as the basement was only visible at the front of the building. In his opinion the basement was not a storey, so the building did not have the appearance of 4 storeys but 3 storeys and a basement. He pointed out that he will have an extra expense to remove the slope and trees and that a number of dwellings had been approved in the area that were higher than the proposed dwelling. He also stated that that he would undergo hardship in reducing the height of the dwelling and that he had to dedicate land to the City as a condition of the consent he had received.
6Moreover, he pointed out that he had not prepared the plans himself as they had been prepared by a previous owner and he was a builder. Most importantly, he pointed out that there were 3 storey dwellings approved, in the area; such as at 195 Danforth Ave. and 112 Danforth Ave., 186 Danforth Ave.,40 Danforth Ave. 110 and 112 Denton Ave., 33 Leyton Ave., and 25 Mystic. Ave., for a total of 24 dwellings at 3 storeys, and some with a height greater than he was seeking.
7He gave additional evidence that the dwelling did not have the appearance of 3 or 4 storeys from the rear and asked why only the front appearance should be taken into account. He questioned the baseline for counting storeys and the appropriateness of the City taking land and denying him a reasonable 3 storey dwelling.
8Ms. Mahjoubi’s evidence generally addressed the tests of S. 45 of the Planning Act and in particular whether the variance would maintain the general intent of the zoning bylaw which implements Official Plan. The test to be applied she stated is whether the 3 storey dwelling which has the appearance of 4 storeys would maintain the general intent of the zoning bylaw to limit buildings to 2 storeys and therefore respect and reinforce the physical character of the neighbourhood. She pointed out that the examples that Mr. Pang used were either outside the neighbourhood, in a different zone, or had the appearance of 2 storeys. For example, some were more than 400 m away. None were in proximity to 94 Danforth Ave. Another site was zoned multi unit apartment and another commercial residential, rather than detached dwelling. None had the appearance of 4 storeys as the proposed dwelling did. It was her evidence that none of his examples were relevant to tests under the s. 45.of the Planning Act Importantly, she noted that variances which had been granted to allow 3 storeys were technical in nature as those buildings had the appearance of 2 storeys.
ISSUES AND ANALYSIS
9The only issue was whether the proposed dwelling with a street appearance of 3 storeys plus a basement from the street should be allowed. Ms. Mahjoubi’s evidence was clear. The test was whether the dwelling would maintain the intent of the Official Plan, ie. to respect and reinforce the physical character of the neighbourhood that is generally 2 storey detached dwellings.
10In her opinion, the dwelling would not and Mr. Pang’s examples were not relevant as the dwelling proposed would have the appearance of a 4 storey building from the street which would not fit the neighbourhood character, and would not maintain the 2 story appearance as other approvals had. In her opinion the general intent and purpose of the zoning bylaw is to maintain the 2 storey appearance of detached dwellings. I find her evidence persuasive and find her opinion sound. This variance to permit a 3 storey dwelling would permit a building with the appearance of a 4 four storey building which would not suit the character of this neighbourhood or maintain the intent of the bylaw which is to have detached dwellings appear to be 2 storeys. Other approvals for 3 storey detached dwellings were technical in nature as the buildings appeared to be 2 storeys from the street. In this case the variance would not be technical as it would allow a detached dwelling which appeared to be be 4 storeys from the street. The appearance of the proposed dwelling from the street is most important as it contributes to the character of the neighbourhood. The basement has the appearance of another storey even though it is a basement.
11The cost of construction or bringing an appeal and the dedication of land to the City is not a relevant consideration in determining if the variance should granted under s.45 of the Planning Act.
CONCLUSION
12The variance does not maintain the general intent of Official Plan and zoning bylaw which is to respect and reinforce the character of the area as one of 2 storey detached dwellings. Allowing the variance would allow a detached dwelling with the appearance of 4 storeys. Two of the four tests under s. 45 are therefore not met. Since all four tests must be met I do not have to consider the last two tests.
DECISION AND ORDER
13The appeal is hereby dismissed and the variance refused.
S. Makuch
Panel Member