Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-03-28

22 224107 S45 12 TLAB

Pronesti v. Jonuzaj, 2023 ONTLAB 54

DECISION AND ORDER

Issuance Date:

March 28, 2023

PROCEEDINGS COMMENCED UNDER subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant(s):

D. Pronesti

Applicant(s):

In Road Consultants

Property Address:

441 Glenholme Ave

COA File Number(s):

22 165162 STE 12 MV (A0757/22TEY)

TLAB Case File No.:

22 224107 S45 12 TLAB

Hearing Date(s):

February 28, 2023

Decision Delivered By:

TLAB Panel Member B. Martin

Registered Parties and Participants:

People Type

Name

Appellant / Owner

D. Pronesti

Appellant’s Legal Rep

C. Lanz

Applicant

In Road Consultants

Party (TLAB)

S. Jonuzaj

Party (TLAB)

T. Usher

Party (TLAB)

A. Giulianolupo

Participant

F. Husain

Participant

R. Mahadeo

Participant

C. Wurman

Participant

E. Chiu

Participant

E. Jonuzaj

Expert Witness

D. Rende

INTRODUCTION AND CONTEXT

1Mr. Domenic Pronesti is the owner of the property at 441 Glenholme Avenue.

2At its meeting on October 12, 2022, the Committee of Adjustment for the City of Toronto refused an application for two minor variances requested by Mr. Pronesti.

3The first minor variance would have allowed the height of the side exterior main wall facing a side lot line to be 10.96 m, where Chapter 10.80.40.10(2) of By-law 569-2013 requires a maximum permitted height of the side exterior main wall facing a side lot line to be 8.5 m.

4The second minor variance would have allowed a floor space index of 1.0 times the area of the lot, where Chapter 10.80.40.40(1) of By-law 569-2013 requires a maximum permitted floor space index of 0.8 times the area of the lot.

5Mr. Pronesti was seeking approval of the two minor variances to legalize and maintain a third storey addition to an already under construction 2-storey detached dwelling (as approved by Minor Variance Decision A0713/20TEY).

6The third storey addition had been constructed beyond what was approved pursuant to Building Permit Number 21 134339 BLD 00 SR.

7On October 31, 2022 the Committee of Adjustment's decision was appealed to the Toronto Local Appeal Body by Mr. Calvin Lantz of Stikeman Elliot LLP on behalf of Mr. Pronesti.

8Since both the meeting of the Committee of Adjustment and the appeal to TLAB, an Ontario Land Tribunal Order dated November 30, 2022 (Case No. OLT-22-002465) amended Zoning By-law 569-2013 by replacing Regulation 10.80.40.10(2) with the following:

Maximum Height of Specified Pairs of Main Walls

In the RM zone, the permitted maximum height of the exterior portion of

main walls for a detached house or a semi-detached house is the

higher of 7.0 metres above established grade or 2.5 metres less than the

permitted maximum height in regulation 10.80.40.10(1), for either (A) or

(B) below:

(A) all side main walls, for at least 70% of the total width of

each side main wall; or

(B) all front main walls and all rear main walls, for at least:

(i) 60% of the total width of all front main walls and all

rear main walls if the building is on a lot with a lot

frontage of 12.0 metres or more;

(ii) 50% of the total width of all front main walls and all

rear main walls if the building is on a lot with a lot

frontage greater than 7.5 metres and less than 12.0

metres; and

(iii) 40% of the total width of all front main walls and all

rear main walls if the building is on a lot with a lot

frontage of 7.5 metres or less.

9The effect of the Ontario Land Tribunal's order on the requested variance for side yard main wall height is as follows:

• The total length of the existing structure is 19.81 metres.

• The amendment to Regulation 10.80.40.10(2) would require a length of 13.87 metres of the side exterior side walls to be 8.5 metres in height. The amendment would also allow a length of 5.94 metres to be 11 metres in height.

• The main exterior side wall length requested by Mr. Pronesti is 14.02 metres, or 70.77 % of the side exterior main wall. In length, that is a difference of 8.08 metres over what the Ontario Land Tribunal has ordered.

10Mr. Lantz called on Mr. Daniel Rende to give expert and opinion evidence in land use planning.

11Mr. Rende was qualified to give expert and opinion evidence in land use planning by the presiding Panel Member.

12Eight resident neighbours proximate to the property at 441 Glenholme Avenue requested Party or Participant status pursuant to the Toronto Local Appeal Body's Rules of Practice and Procedure

13They were:

• Ms. Tiffany Usher (Party) – 339 Glenholme Avenue.

• Mr. Sokrat Jonuzaj (Party) – 59 Amherst Avenue

• Mr. Angelo Giulianolupo (Party) – 445 Glenholme Avenue

• Mr. Cory Wurman (Participant) – 339 Glenholme Avenue

• Ms. Eva Jonuzaj (Participant) – 59 Amherst Avenue

• Mr. Edwin Chiu (Participant) – 448 Glenholme Avenue

• Ms. Rukumini Mahadeo (Participant)– 437 Glenholme Avenue

• Mr. Faruk Husain (Participant) – 460 Glenholme Avenue

14No Parties or Participants appeared in support of the minor variances requested.

THE LEGISLATIVE AND POLICY FRAMEWORK

15Variance – s. 45(1) of the Planning Act of Ontario

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.

16A decision by TLAB shall be consistent with the Provincial Policy Statement and shall conform to the Growth Plan for the Greater Golden Horseshoe. (Section 3(5) of the Planning Act of Ontario).

17The property at 441 Glenholme Avenue is in an area of the city designated Neighbourhoods on Land Use Map 17 of the City of Toronto Official Plan.

18The relevant Official Plan policies identified were Section 2.3.1 – Healthy Neighbourhoods and Section 4.1 – Neighbourhoods.

19Policy 2.3.1(1) states that Neighbourhoods are considered physically stable areas of the city and that development will respect and reinforce the existing physical character of buildings, streetscape, and open space patterns in these areas.

20Pursuant to Policy 4.1(5) of the Official Plan, Mr. Rende advised the Panel Member that the Official Plan required him to identify a Geographic Neighbourhood to inform his analysis. The area selected was bounded by Eglinton Avenue West (north), Oakwood Avenue (east), Rogers Road (south), and Dufferin Street (west). The selection of these boundaries were guided by consideration for zoning, prevailing dwelling type and scale, lot size and configuration, street pattern, pedestrian connectivity, and natural and human-made dividing features.

21With the exception of properties not subject to City-wide Zoning By-law 569-2013, all properties within the Geographic Neighbourhood are zoned Residential Multiple Zone with the zoning label RM (f12.0; u2; d0.8). The properties within the Geographic Neighbourhood are also subject to various exceptions which vary throughout the neighbourhood.

22Policy 4.1(5) 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). 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. The determination of material consistency for the purposes of this policy will be limited to consideration of the physical characteristics listed in this policy.

23Policy 4.1(5) states that development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including:

• patterns of streets, blocks and lanes, parks and public building sites;

• prevailing size and configuration of lots;

• prevailing heights, massing, scale, density and dwelling type of nearby residential properties;

• prevailing building type(s);

• prevailing location, design and elevations relative to the grade of driveways and garages;

• prevailing setbacks of buildings from the street or streets;

• prevailing patterns of rear and side yard setbacks and landscaped open space;

24Policy 4.1(8) states that zoning by-laws will contain numerical site standards for matters such as building type and height, density, lot sizes, lot depths, lot frontages, parking, building setbacks front lot lines, landscaped open space and any other performance standards to ensure that new development will be compatible with the physical character of established residential Neighbourhoods. Although Neighbourhoods are to be physically stable, the Official Plan recognizes that these areas will experience changes through new development.

25Mr. Rende advised the TLAB that the subject site is zoned Residential Multiple Zone

(RM (f12.0; u2; d0.8) (x252)).

14The RM Zone permits a range of residential building types including a detached house, a semi-detached house, a duplex, a triplex, a fourplex, and an apartment building.

26The maximum density for allowable residential buildings is 0.8 times the area of the lot.

27The maximum permitted height for an allowable residential buildings is 11.0 metres and 3 storeys.

28Based on an Order by the Ontario Land Tribunal dated November 20, 2022, detached and semi-detached houses are permitted to have a maximum height for side exterior main walls of 8.5 metres (2.5 metres less than the maximum permitted overall height) for at least 70% of the total width for side exterior main walls.

29The performance standard listed above for maximum exterior main wall height of detached and semi-detached houses does not apply to other building types permitted in the RM zone, such as duplex and triplex buildings.

30The required minimum side yard setbacks for residential buildings in an RM zone are:

• 1.2 metres for a detached house;

• 1.5 metres for a semi-detached house;

• 1.8 metres for a duplex or triplex

• 2.4 metres for a fourplex, an apartment building or a non-residential building

SUMMARY OF EVIDENCE

31The property is located on the east side of Glenholme Avenue, halfway between Amherst Avenue to the north and Ashbury Avenue to the south.

32The lot frontage is 7.32 metres. The lot depth is 40.74 metres. Total lot area is 297.65 square metres.

33The legacy (original) 1-storey residential dwelling has been largely demolished.

34The property is currently occupied by the framing of a 3-storey detached dwelling. That structure is 19.81 metres long, which is 2.81 metres longer than the zoning by-law allows. A minor variance to permit a longer detached dwelling was obtained by Mr. Pronesti on November 27, 2020. The north side yard setback is 0.34 metres, whereas the zoning by-law requires a setback of 1.2 metres. The south side yard setback is 0.82 metres, whereas the zoning by-law requires a setback of 1.2 metres. A minor variance to permit a reduced side yard setback was obtained by Mr. Pronesti on November 27, 2020.

35Mr. Rende used a 57 page photo book to demonstrate the characteristics of dwellings within the Geographic Neighbourhood.

36The Geographic Neighbourhood features a grid-like street pattern with similarly shaped rectangular-shaped lots and similar lot sizes and lot frontages

37The Geographic Neighbourhood consists of a variety of low-rise residential dwellings, including single detached, semi-detached, duplex, triplex, fourplex, and low-rise apartment dwellings. The Geographic Neighbourhood includes a range of building heights and number of storeys. The characteristics of the dwellings within the Geographic Neighbourhood are also varied as the area includes dwellings constructed and renovated over a span of the past several decades. There are both single and multi-family residential buildings, some of which are owned and others tenanted.

38Photos 33, 34, 35, 44, 45, 46, 47, 48, 49, 50 and 51 identify the character of residential buildings that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context).

39The property at 439 Glenholme Avenue (immediately east of 441 Glenholme Avenue) has received approval of a Minor Variance application (File A1154/21TEY) to permit the construction of a 2-storey single-detached dwelling with an internal garage facing the street. The minor variance application included variances for front yard setback (2.88 metres) and density (1.11 times the area of the lot). The proposed single detached house will have a total height of 10.91 metres measured to the peak of the gabled roof.

40A Building Envelope Study was prepared under Mr. Rende's direction to show the physical relationship between the proposed new house for the property at 441 Glenholme Avenue and the immediate context. For the purpose of the study, the proposed new detached house at 339 Glenholme Avenue was used, rather than the existing detached house on the property.

41Mr. Rende also used the duplex located at 387 Glenholme Avenue, a three storey building, with a flat façade and a flat roof, as an example of new development within a Neighbourhood that is materially consistent with the prevailing physical character of properties in both the broader and immediate contexts.

42A Shadow Study was prepared under Mr. Rende's direction. His opinion was that there is minimal incremental shadowing from the minor variances requested beyond what has been approved for the subject site through the previous Committee of Adjustment decision on November 27, 2020. In some instances, there is a reduction in shadowing compared to the previous approval.

43Mr. Rende provided a compendium of Committee Adjustment Approvals – Density and/or Main Wall Height in the Geographic Neighbourhood. Thirty decisions were sighted. Twenty three included requests for an FSI increase, ranging from 0.82 to 1.59. Seven included relief for an increase of the side exterior main wall facing a side lot line height, ranging from 8.72 metres to 9.75 metres. Seven of those decisions included variances for both FSI and side exterior main wall height, ranging from 0.84 to 1.4 FSI and 8.72 to 9.75 metres of exterior main wall height. The specific requested variance for each of the seven decisions is shown below.

Number

ADDRESS

FSI

SEMWH

1

24 Allenvale

1.40

9.00

2

107 Covelly

0.84

9.85

3

417 Westmount

0.84

9.75

4

502 Oakwood

1.03

10.00

5

614 Lauder

1.00

8.72

6

625 Glenholme

0.91

9.50

7

680 Vaughan Road

0.99

9.68

44Each of the three Parties and five Participants submitted Witness Statements to TLAB and made statements during the hearing.

45Ms. Usher cross-examined Mr. Rende.

46All Parties and Participants stated that the variances requested fail all four tests pursuant to s. 45(1) of the Planning Act of Ontario.

47Mr. Rende provided the following expert opinion evidence in land use planning with respect to the requested variances and the four tests pursuant to s. 45 (1) of the Planning Act of Ontario.

Compliance with Provincial Policy

48It was Mr. Rende's opinion that the proposed minor variances are consistent with the Provincial Policy Statement 2020, specifically referencing Policies 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.4.3, 1.6.7.4, 1.7.1 and 1.8.1.

49It was Mr. Rende's opinion that the minor variances conform to the Growth Plan for the Greater Golden Horseshoe (2019). In particular, the Guiding Principles in Section 1.2.1 and Policies 2.2.1(2)(c), 2.2.1(3)(c), 2.2.1(4), 2.2.2(3), 2.2.4, and 2.2.6.

Do the variances maintain the general purpose and intent of the Official Plan

50The development criteria policies of Official Plan Policy 4.1(5) only speak to general development standards such as building type, height, massing, and setbacks, and does not make reference to exterior main wall height.

51From a massing perspective, the intent of the Official Plan is to ensure that development respect and reinforce the character of the geographic neighbourhood. In that regard, the proposed development is situated in a neighbourhood which includes house form buildings in a similar configuration where the exterior main walls exceed the height of 8.5m (as evidenced by numerous approvals for buildings with flat roofs or because the exterior main wall height regulation does not apply). It should be noted that the geographic neighbourhood is characterized by an eclectic mix of house forms in a variety of massing configurations which include flat and gabled roofs both of which are permitted. In my opinion, the proposal maintains the intent of the Official Plan in terms of the height of the side exterior main walls.

52The Official Plan does not generally include density limitations and specifically does not do so in the case of the subject site; rather, the Official Plan provides that land use designations are generalized, leaving it to the Zoning By-law to “prescribe the precise numerical figures and land use permissions that will reflect the tremendous variety of communities across the city.

53It was Mr. Rende's opinion that the proposed house is compatible with the existing pattern of development in terms of height, massing, and scale as there are a number of 3- storey buildings in the geographic neighbourhood in a variety of dwelling types including detached dwellings. The massing and dwelling type is in keeping with the scale of other house form buildings in the area which includes a large number of detached and semi-detached dwellings. There are a number of house form buildings in the area that are of comparable size as evidenced by the number of recent approvals for increased density and through our photobook.

Do the variances maintain the general purpose and intent of the Zoning By-law

54The intent of the Zoning By-law with respect to density is to prevent overbuilding of the lot. The building largely fits within the zoning envelope: front yard setback

maintained, rear yard amenity maintained, and no overall building height variance is

required. The only variance required that has any bearing on the overall building

envelope is for the height of side exterior main walls.

55The proposed increase in density is well within range of other approvals in the

neighbourhood, including the recent approval to the immediate south at 439

Glenholme Avenue and represents a modest increase. Furthermore, the additional

building envelope resulting from the increase in density at the top of the building does not result in unacceptable impacts on the surrounding context including

shadowing, overlook, and privacy.

56The Zoning By-law permits an overall height of 11.0 metres and 3 storeys as-of-right, but includes additional regulations relating to exterior main wall height for detached and semi-detached dwellings. Other dwelling types, such as duplexes and triplexes, are not subject to a maximum exterior main wall height and can provide a 3-storey flat-roof design. A duplex with a flat roof and an overall height of 11.0 metres, which is permitted, is indistinguishable in massing from a detached house with a flat roof and overall height of 11.0 metres.

57The Zoning By-law requires that side exterior main walls be no higher than 8.5

metres for at least 70% of the total width of the side exterior main wall, therefore 30% of the width of the side exterior main wall may extend to the overall permitted height of 11.0 metres which would as-of-right permit a partial third storey for a detached dwelling or semi-detached dwelling. The proposed variance therefore represents an adjustment to the overall permitted extent of a side exterior main wall taller than 8.5 metres.

58The intent of the Zoning By-law for side exterior main walls is to help diminish the

overall massing appearance of the building at the top and limit any potential impacts. In that regard, the proposed side exterior main walls do not extend the full depth of the house. The building is designed with step backs at the front and rear of the building on the 3rd floor helping to diminish the overall appearance of the building from the street and at the rear. The proposed step backs also help eliminate any potential impacts on the surrounding properties including shadow, overlook, and privacy. Furthermore, there are no windows above the 2nd floor on the side exterior main walls.

Are the variances desirable for the appropriate development or use of the land

59Mr. Rende provided the following land use planning opinion evidence.

60The proposal is desirable as it represents incremental residential improvement whereas the design and character of the change is in keeping with the area. There are no unacceptable impacts on the neighbourhood and the proposal respects and reinforces the character of the area.

61The requested density variance facilitates the ongoing reinvestment

of the geographic neighbourhood in a built form that reflects a desirable approach

to gentle intensification of the subject site that fits harmoniously within the residential

neighbourhood.

Are the variances minor

62Mr. Rende provided the following land use planning opinion evidence.

63In his opinion, the density variance is minor from both a quantitative and qualitative perspective. Minor is not simply a numerical calculation; rather, it is based on an analysis of fit and impact on the immediate context and surrounding neighbourhood. In this regard, the proposed development will not create any unacceptable impacts onto the adjacent properties or the surrounding area.

64The shadow study prepared by Bousfields Inc. under my direction demonstrates that there is minimal incremental shadowing from the density increase beyond what has been approved for the subject site through the previous Committee of Adjustment decision on November 27, 2020. In some instances, there is a reduction in shadowing compared to the previous approval.

65In his opinion, there is no unacceptable impact on the adjacent properties in terms of overlook or privacy. The 2nd storey balcony is permitted based on the previous Committee of Adjustment approval from November 27, 2020. A third floor terrace is not permitted by the zoning by-law and there are no variances being sought for a third floor terrace.

66In terms of any potential impact on the area, the proposal is in keeping with the character of the geographic neighbourhood.

ISSUES AND ANALYSIS

67The issue before the Tribunal is the impact of new or renovated residential buildings in areas of the city zoned RM (Residential Multiple), and whether the two minor variances requested by Mr. Pronesti meet the four tests.

68Based on his evidence, it was Mr. Rende's expert opinion in land use planning that the two requested minor variances meet the four tests as set out in s. 45(1) of the Planning Act of Ontario.

69Mr. Rende's evidence and expert opinion were contested by the Parties and Participants in opposition, but not by an expert qualified witness called by a Party.

70It was Mr. Rende's expert opinion regarding the permitted maximum height for side main walls that I question and cannot accept. For that reason, and as explained below, I have concluded that the requested minor variances do not meet the four tests as set out in s. 45 (1) of the Planning Act of Ontario.

71Policy 4.1(8) of the Official Plan states that zoning by-laws will contain numerical site standards for matters such as building type and height, density, lot sizes, lot depths, lot frontages, parking, building setbacks from lot lines, landscaped open space and any other performance standards to ensure that new development will be compatible with the physical character of established residential Neighbourhoods. Although Neighbourhoods are to be physically stable, the Official Plan recognizes that these areas will experience changes through new development.

72Mr. Rende in both his witness statement and in-chief evidence told the Tribunal that the RM (Residential Multiple) zoning classification has specific numeric performance standards for the different types of residential structures permitted in that zone.

73As an example, in response to my question as to why duplexes were exempt from the performance standard for maximum side exterior wall height, Mr. Rende replied that the zoning by-law allows this exemption because it is known that duplexes generally have different massing characteristics than detached and semi-detached homes and the impact of duplexes on abutting properties is controlled by the increased side yard setbacks.

74More important, Mr. Rende went further to say that the performance standards for yard setbacks and main wall heights create separate building envelopes for detached and semi-detached houses as compared to duplexes.

75It is therefore very clear that the purpose and intent of performance standards in a Residential Multiple (RM) zone were specifically chosen to ensure building mass and therefore impacts on abutting properties were to be strictly controlled, and were chosen because of Official Plan Policy 4.1(8).

76Mr. Rende's expert opinion on the issue of the minor variance for maximum main side wall height confirmed that the zoning by-law creates building envelops for different building classes in a RM zone and confirms the importance the maximum main wall height plays in creating the building envelops. However he tries to justify the minor variance by stating that the development criteria policies of Official Plan Policy 4.1(5) only speak to general development standards such as building type, height, massing, and setbacks, and does not make reference to exterior main wall height. Based on my understanding of the applicable policies in the Official Plan, there is nothing "general" about Policy 4.1 (8)

76I can also not accept Mr. Rende's expert opinion that the variance for maximum main side wall height is minor or desirable for development of the property. The total length of the existing structure is 19.81 metres. The amendment to Regulation 10.80.40.10(2) would require a length of 13.87 metres of the side exterior side walls to be 8.5 metres in height. The amendment would also allow a length of 5.94 metres to be 11 metres in height. The main exterior side wall length requested by Mr. Pronesti to be 10.93 metres in height is 14.02 metres, or 70.77 % of the side exterior main wall. In length, that is a difference of 8.08 metres over what the Ontario Land Tribunal has ordered. Mr. Rende's opinion that the in place structure is designed with step backs at the front and rear of the building on the 3rd floor helping to diminish the overall appearance of the building from the street and the rear does not adequately address the impact this variance if approved would have on property owners in the immediate context.

CONCLUSION

77A hearing of the Toronto Local Appeal Body took place on February 28, 2023 to consider an appeal by Mr. Dominic Pronesti regarding a refusal by the Committee of Adjustment for the City of Toronto to approve two minor variances for the property at 441 Glenholme Avenue.

78In considering the evidence and expert opinion from a qualified land use planner regarding the variances requested, I cannot agree that the requested variances meet all four tests under s. 45(1) of the Planning Act of Ontario.

DECISION AND ORDER

79The appellants appeal is dismissed.

B. Martin

Panel Member