1000020296 Ontario Limited v. Annex Residents Corporation, 2023 ONTLAB 57

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-03-29

22 227137 S45 11 TLAB

1000020296 Ontario Limited v. Annex Residents Corporation, 2023 ONTLAB 57

FINAL DECISION AND ORDER

Issuance Date:

March 29, 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):

1000020296 ONTARIO LIMITED

Applicant(s):

1000020296 ONTARIO LIMITED

Property Address:

125 KENDAL AVE

COA File No.:

22 156192 STE 11 MV (A0745/22TEY)

TLAB Case File No.:

22 227137 S45 11 TLAB

Hearing Date(s):

March 7, 2023; March 16, 2023; March 17, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Name

Representative

Owner/Applicant/Appellant

1000020296 ONTARIO LIMITED

A. Stewart

Party (TLAB)

T. Marescaux

Party (TLAB)

M. Coulavin

Party (TLAB)

E. Whelan

Party (TLAB)

J. Schofield

Party (TLAB)

Annex Residents Corporation

Party (TLAB)

J. Korman

Party (TLAB)

S. Nutzati

Expert Witness

G. Uens

Expert Witness

P. Wynnyczuk

INTRODUCTION AND CONTEXT

1. 1000020296 Ontario Limited (the “Appellant”) is the owner of 125 Kendal Avenue (the “Property). The Property is presently a detached dwelling with four dwelling units, which have been occupied as rental dwelling units.

2. The Appellant wishes to alter the dwelling so as to create a semi-detached dwelling structure, each half of which is to be designed so as to have three dwelling units, being a principal unit and two secondary suites. In the aggregate, the result would be to create six dwelling units.

3. For this purpose, the Appellant made application to the Committee of Adjustment (the “Committee”) as the development proposal would require various heads of variance relief from the applicable Zoning By-law 569-2013.

4. The application filed with the Committee originally sought 15 heads of variance relief.

5. The application was refused, whereupon the Appellant filed an appeal to the Toronto Local Appeal Body (the “Tribunal”).

6. According to the Appellant’s planning consultant, as a result of consultation with City of Toronto staff and other persons, modifications to the development proposal originally proposed were made by the Appellant. These included the removal of some balconies and the reduction in size of others, a reduction in building depth and Floor Space Index, an extension of the north side setback and removal of the third floor sloped roof.

7. As a result of those consultations and as a result of certain amendments to the Zoning By-law having come into effect in the interim which altered development standards and requirements, the slate of relief sought by the Appellant in the appeal before the Tribunal was reduced to nine variances (one ceasing to be required as a result of a very recent Ontario Land Tribunal approval of a further Zoning By-law amendment regarding main wall height).

8. The appeal hearing took place over the course of three full days, the Tribunal having heard from two professional witnesses (a land use planner and an arborist called by the Appellant), a representative of the local residents association, the Annex Residents Corporation, and seven members of the local neighbourhood who were registered either as Parties or Participants and filed witness statements and/or spoke during the hearing.

THE LEGISLATIVE AND POLICY FRAMEWORK

9. Section 3(5) of the Planning Act requires that decisions of planning authorities, including the Tribunal, be consistent with the Provincial Policy Statement, 2020 (the “PPS”), and conform with the Growth Plan for the Greater Golden Horseshoe, 2020 (the “Growth Plan”).

10. Section 45(1) of the Planning Act requires that the Committee, and the Tribunal on appeal, be satisfied that the application for variance satisfies the four tests set out therein: 1) that the variance is minor; 2) that the variance maintains the general intent and purpose of the official plan; 3) that the variance maintains the general intent and purpose of the Zoning By-law; and 4) that the variance is desirable for the appropriate development or use of the property.

SUMMARY OF EVIDENCE

11. The Tribunal heard the planning background and opinion evidence through Graig Uens, who was called by Appellant’s counsel.

12. Mr. Uens has been a practising planner for 15 years and presently conducts a land use consultancy practice through the firm of Batory Planning + Management. Prior to joining that firm, he was a Senior Planner in the office of the Chief Planner of the City of Toronto. While in that position, he was deeply involved in a planning initiative known as Expanding Housing Options in Neighbourhoods. This exercise is connected with advancing the presence of multi-unit buildings in Neighbourhoods. Associated with this, and a policy initiative which Mr. Uens played a role in establishing, is the City-wide permissions for garden suites and laneway housing.

13. Mr. Uens started his professional career with the Town of Whitby and came to work for the City of Toronto Planning Department in 2010, assuming Senior Planner positions in the Community Planning Branch until his assumption of duties in the Chief Planner’s office in 2020. He is a Registered Professional Planner. He was qualified to offer opinion evidence on land use planning matters in the proceeding.

Property Location and Context

14. Mr. Uens commenced his testimony by providing a description of the location of the Property and its context as well as a description of the present structure on the Property, which structure is essentially to be retained as to outward appearances (with alterations) and significantly modified in the interior and by way of rearward extension.

15. The Property is located on the east side of Kendal Avenue, immediately south of Dupont Street. The Property is a rectangular shaped lot 292.5 square metres in area. The lot is 7.4 metres wide and approximately 40 metres deep. A three-storey detached residential building is currently located on it. The existing building contains a total of 4 residential rental units.

16. Although the Property fronts Kendal Avenue, he underlines that from a visual perspective. the entire three storey north facade of the existing building is directly visible from Dupont Street, and due to a jog northward of Dupont Street in the immediate vicinity of Kendal Avenue, the front facade of the existing building is also readily and directly visible from Dupont Avenue.

17. The Kendal Avenue TTC stop for the 26 Dupont bus route is located immediately adjacent to the Property, and the entrance to the Line 1 Dupont subway station is situated within approximately 175 metres. The Property is located close to a number of on-street shared cycling connections.

18. He advises that the immediate context on Kendal Avenue comprises a range of primarily three-storey single detached and semi-detached residential buildings on similar sized lots to that of the Property. He observed that several residential buildings in the immediate context appear to contain multiple residential dwelling units. There are two 3.5 storey apartment buildings located at 65 and 68 Kendal Avenue south of the Property.

19. Mr. Uens advises that the depth of houses on both sides of the street is varied. Front yard setbacks are generally consistent on either side. Facing the street, the buildings present a considerable mix of residential styles with some residences having front porches of various sizes, projecting windows, and various roof types, many of which include dormers to third floor windows. While rooflines vary up and down the street, a sloped 3rd storey roof is characteristic of many of the semi-detached dwellings. A variety of materials and colours are also employed across the houses on either side of Kendal Avenue. Front yard parking areas are common on the street, while some lots have predominantly landscaped front yards.

20. He describes the nature of buildings on Dupont Street in the vicinity of the Property as varying between the north and south sides of the street. Along the south side of Dupont Street, a series of 2.5 to 3 storey residential buildings are located with their front or side yards facing the street. Associated parking areas and garages are also located intermittently along the south side of the street. The north side of Dupont Street is characterized by larger commercial lots and buildings ranging widely in both size and function, with interspersed blocks of 2 to 3 storey residential buildings and mixed-use buildings fronting the street.

21. He points out that the context along Dupont Street between Spadina Avenue and Bathurst Street is undergoing a series of redevelopments. Large mixed-use buildings are being constructed on large and consolidated lots on the north side of the street, and new infill projects comprising additions and renovations to existing multi-unit buildings. Mr. Uens particularly identifies a series of six townhouses municipally known as 536 Brunswick Avenue, but fronting Dupont Street, which have recently been completed. That development becomes something of a touchstone for Mr. Uens, as he asserts that, like the Property, it pivots between its frontage on Brunswick Avenue but also its presentation to Dupont Street.

22. He also touched upon completed and in process multi-storey developments on Dupont Street in the immediate vicinity.

Land Use Policy Background

23. Mr. Uens provided a land use policy background by informing the Tribunal that within the City’s Official Plan (the “OP”), the Property is located in the “Downtown and Central Waterfront” as shown on Map 2 - Urban Structure, is designated as “Neighbourhoods" as shown on Map 18 – Land Use, and is located within the Downtown Secondary Plan Area as shown on Map 35 - Secondary Plan Areas.

24. Dupont Street is a Major Street with a planned right-of-way width of 20 metres as shown on Official Plan Map 3 - Right-of-Way Widths Associated with Existing Major Streets.

25. Mr. Uens informed the Tribunal that in July, 2022, Toronto City Council adopted several Official Plan Amendments to establish a series of Major Transit Station Areas (MTSA) and Protected Major Transit Station Areas (PMTSA) through Site and Area Specific Policies. The Property is located within Site and Area Specific Policy 718 (SASP 718) which is a Protected Major Transit Station Area around Dupont Station. The designation of these special policy areas is intended to fulfill policy direction embedded in the Growth Plan.

26. Finally, he advised that the Property is zoned Residential Zone – R (d1.0) (x900), by City of Toronto Zoning Bylaw 569-2013, as amended. The zoning permits a maximum building height of 13 metres and a range of residential uses from detached houses, to various forms of multiplexes and low-rise apartments.

Project Description

27. Mr. Uens then described the development proposal. He suggested that the proposed development has been designed and massed to appropriately limit resulting impacts with regard to light, view, and privacy on adjacent properties, and ensure compatibility with adjacent properties and the neighbourhood context.

28. The proposed development has a Gross Floor Area (GFA) of 470 square metres (5,068 sq.ft.) and a Floor Space Index of 1.61 times the lot area. The proposed height of the building is 13.0 metres (42’-8” feet) measured from established grade to the top of two stair towers which provide access to the roof level. Apart from the stair towers, the height of the building to the roofline is 10.5 metres.

29. The proposed building has an existing 7.14 metre setback from the street line and has a south side lot setback of 0.81 metres. Along the north side of the building, the proposed structure is set back 0.00 metres along the north property line and then steps in by a depth of 0.51 metres to provide additional separation from the property to the north. At the basement level the rear of the building is set back 6.51 metres from the rear lot line. The ground, 2nd and 3rd levels of the building are set back 8.51 metres.

30. The proposed development contains a total of six units comprising four 3-bedroom units and two 2-bedroom units. The floor areas of each unit are as follows: ○ Building A, Unit 1 – 78.3 m2 (843 ft2 ) ○ Building A, Unit 2 – 93.9 m2 (1,010 ft2 ) ○ Building A, Unit 3 – 135.3 m2 (1,457 ft2 ) ○ Building B, Unit 4 – 66.7 m2 (718 ft2 ) ○ Building B, Unit 5 – 79.7 m2 (858 ft2 ) ○ Building B, Unit 6 – 110 m2 (1,184 ft2 ).

31. Each unit within the building is proposed to have its own separate access door from the exterior of the building. Private outdoor space is provided for 2 of the 6 units via balconies and terraces. The units share a rear yard waste storage and bike parking area. The front and rear yards of the site are landscaped. No vehicle parking is proposed on the site.

32. Mr. Uens advises that the exterior front facade of the building has been designed with high-quality materials, including glass and wood-like siding, to complement the portions of the original brick façade to be retained, and to fit with the variety of façade styles in context.

The Variance Relief Sought

33. The variances sought at this appeal hearing, as modified and reduced from the original relief sought before the Committee, are identified as follows:

34. Section 150.10.40.1.(1)(B), By-law 569-2013 A pedestrian entrance leading exclusively to a secondary suite is not permitted in a front wall of a detached house or semi-detached house. The proposed two entrances leading to the proposed secondary suites will be located along the front wall. 2. Section 150.10.40.1.(2)(A), By-law 569-2013 A secondary suite is a permitted use provided that an addition or exterior alteration to a building to accommodate a secondary suite does not alter or add to a main wall or roof that faces a street. The altered dwelling will alter a front main wall that faces a street. 3. Section 10.5.40.60.(1)(A)(i), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first storey of the building above established grade may encroach into the required front yard setback 2.5 m if it is no closer to a side lot line than the required side yard setback. The proposed front porch will encroach 2.44 m into the required front yard setback and will be located 0.9 m closer to the side lot line than the required side yard setback (0 m from the north side lot line). 4. Section 10.10.40.10.(6), By-law 569-2013 The maximum permitted height of the first floor above established grade is 1.2 m. The altered dwelling will have a first floor height of 1.46 m above established grade. 5. Section 10.5.40.50.(4)(A), By-law 569-2013 The level of the floor of a platform at a front main wall may be no higher than 1.2 m above established grade. The proposed front platform will be 1.46 m above the established grade. 6. Section 10.5.40.60.(1)(C), By-law 569-2013 A platform without main walls attached to or less than 0.3 m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required rear yard setback 2.5 m if it is no closer to a side lot line than a distance equal to the vertical distance between the highest part of the floor of the platform and the average elevation of the ground at the side of the platform. The proposed ground floor platform will encroach less than 2.5 m into the required rear yard setback and will be located 1.2 m from the south side lot line, whereas 1.41 m is required. 7. Section 150.10.40.40.(1), By-law 569-2013 The interior floor area of a secondary suite, or all secondary suites where more than one is permitted, must be no more than 45% of the interior floor area of the dwelling unit within which it is located. The proposed area of the secondary suites in Building A will occupy 56.3% and will comprise 78.3 m² in suite 1, 93.9 m² in suite 2 and 133.9 m² in the primary unit. The proposed area of the secondary suites in Building B will occupy 57.0% and will comprise 66.7 m² in suite 1, 79.7 m² in suite 2 and 110.2 m² in the primary unit. 8. Section 10.10.40.30.(1)(A), By-law 569-2013 The maximum permitted building depth is 17 m. The altered dwelling will have a depth of 26 metres below grade and a depth of 24 metres above grade. 9. Section 10.10.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index is 1.0 times the area of the lot (292.5 m²). The altered dwelling will have a floor space index of 1.61 times the area of the lot (470.9 m²).

35. With regard to the modifications to the proposal and associated variance relief, Ms. Stewart brought a motion under Section 45(18.1) of the Planning Act seeking permission to allow those modifications for the purpose of this hearing and the Tribunal, exercising its authority under Section 45(18.1.1) of the Planning Act treated those modifications as minor and therefore not requiring any further notice.

Planning Analysis – OP Intent and Purpose

35. Mr. Uens first turned to a review of the applicable OP policies. He underscored the interpretation provisions, which say, at Chapter 5.6.1. that “the Plan should be read as a whole to understand its comprehensive and integrative intent as a policy framework for priority setting and decision making” and then at Chapter 5.6.1.1. that “the Plan is more than a set of individual policies. Policies in the Plan should not be read in isolation or to the exclusion of other relevant policies in the Plan. When more than one policy is relevant, all appropriate policies are to be considered in each situation. The goal of this Plan is to appropriately balance and reconcile a range of diverse objectives affecting land use planning in the City.”

36. Without here detailing the particular provisions, Mr. Uens canvassed policies in the Vision Statements, the Healthy Neighbourhoods chapter, the Housing policies, the Built Form policies and the Neighbourhoods policies.

37. Mr. Uens suggested that the Neighbourhoods policies can be challenging and he specifically remarked that the Development Criteria in Policy 4.1.5 should not be read as a checklist.

38. It is within Policy 4.1.5 that direction is given as to the establishment of neighbourhood contexts against which to assess new development proposals.

39. Following on this direction, Mr. Uens established three somewhat overlapping contexts, which he referred to as: 1) The Immediate/Major Street Context (which consists of 12 properties on the south side of Dupont Street running from 301-305 Dupont Street, and including 122, 123, 124 and 125 Kendal, and 174, 176, 178, 180 and 182 Walmer Road), 2) The Expanded Major Street Context (which includes 72 properties on both sides of Dupont Street running somewhat beyond Albany Avenue in the west and Walmer Road in the east), and 3) the Interior Neighbourhood (which includes 177 properties and runs from below the Major Street Context down to Bernard Avenue).

40. Mr. Uens generates these contexts, most particularly the Immediate/Major Street Context based upon the text in Policy 4.1.5 of the OP, which reads as follows: “Lots fronting onto a major street shown on Map 3 and designated Neighbourhoods are to be distinguished from lots in the interior of the block adjacent to that street in accordance with Policy 6 in order to recognize the potential for a more intense form of development along major streets to the extent permitted by this Plan.”. And he says that for further clarification, the policy continues: “Lots fronting onto a major street, and flanking lots to the depth of the fronting lots, are often situated in geographic neighbourhoods distinguishable from those located in the interior of the Neighbourhood due to characteristics such as: different lot configurations; better access to public transit; adjacency to developments with varying heights, massing and scale; or direct exposure to greater volumes of traffic on adjacent and nearby streets. In those neighbourhoods, such factors may be taken into account in the consideration of a more intense form of development on such lots to the extent permitted by this Plan.”.

41. Predicated upon that text, Mr. Uens considers the contextual factors and observes that on the block where the Property is situated, the lots fronting Dupont Street - a Major Street as noted on Official Plan Map 3 - are 301, 303, and 305 Dupont Street. The Property is a flanking lot within the depth of the two of these fronting lots - 301 and 303 Dupont Street. The site has better access to transit, is closer to developments with varying heights, massing and scale, and is exposed to a greater volume of traffic than interior Neighbourhood sites further south on Kendal Avenue. As the Plan identifies the site as being within a Neighbourhood Major Street context, he asserts that the plan intends that a more intense form of development, to the extent permitted by this Plan, be considered.

42. He then goes on to say that based on his visits to the site and area, the Property is clearly part of the Major Street context, despite technically fronting Kendal Avenue. The north jog on Dupont Street that occurs at the intersection of Dupont Street and Kendal Avenue results in the front yard of 125 Kendal Avenue looking straight down Dupont Street towards the west. The site is considerably more exposed to traffic on both its north and west sides than any other lot on Kendal Avenue. In addition, given the irregular triangular configuration of 305 Dupont Street, without discounting the possibility entirely, he opines that it would not be likely for a building to be constructed on the western portion of that lot. His conclusion is that visually and functionally, the Property appears to flank on Dupont Street.

43. To buttress this, especially arising from his direct involvement with the initiative while a senior planner in the Chief Planner’s office, he advises that with regard to Major Streets within the Plan, it is worth noting that the City is currently undertaking a study to expand permissions for housing in Neighbourhoods in a Major Street context as part of the ongoing Expanding Housing Options in Neighborhoods initiative.

44. He summarizes his view on the general intent and purpose of the OP by saying that the proposed development is located in a Downtown Neighbourhood and is consistent with the Healthy Neighbourhood policy objectives which note that “established neighbourhoods will benefit from directing growth to the Downtown” (Policy 2.3.1), that it contributes to the provision of a full range of housing in terms of form, tenure, and affordability, within a Neighbourhood, and Downtown Plan Policy 41.3.5, as it contributes to a range of housing that meets the requirements of a diverse population with varied needs, essential to the creation of complete communities.

45. Further with respect to OP policy intent and purpose, and in order to assess the proposal against the characteristics noted in Section 4.1.5 of the OP, he advised that he undertook a desktop analysis of the 237 properties within the three contexts referred to above. He explained that this analysis was informed by mapping and information on the City of Toronto’s Open Data portal and iView website, Ratio City mapping, and Municipal Listing Service data. This information was used to assess the characteristics of the buildings in context including, but not limited to, building depth and Floor Space Index characteristics, as well as the patterns of rear yard setbacks and building type.

46. He discussed what he described as the front façade variances, the first three variances requested – regarding a second front door to a secondary suite, alterations or additions to a main wall or roof that faces a street resulting from the construction of a secondary suite, and construction of a platform facing the street. He said that the alterations to the building façade are consistent with the wide variety of façades within the immediate and broader neighborhood contexts and he concluded that none of the proposed changes to the front of the building result in a building which appears larger than the predominantly three-storey dwellings in the broader context, nor do the changes impact the existing front yard setback, which along Kendal Avenue, is fairly uniform.

47. In discussing the next two variances, he indicated that these concern the level of the first floor and front platform height above grade. The first floor and platform (front patio) are situated 1.46 metres above grade. A maximum of 1.2 metres is prescribed by the By-law in each case. He said that these variances result from the proposed development retaining and incorporating the existing brick structure and in order to provide adequate and liveable ceiling heights in the basement, the first floor will be slightly elevated above its existing height. He offered that this is consistent with the environmental objectives of the Plan as it reduces construction waste resulting from the development, and eliminates the need for underpinning the existing basement and foundation. It also results in a building that retains many of the same floor to floor proportions of the existing structure. Most buildings in the area contexts have some manner of raised 1st floor and associated front porch. He said that while specific measurements of these 1st floors are not available, the existing structure on the Property appears to reflect the general 1st floor height of the other houses in context.

48. Regarding variance 6 with respect to the rear yard deck encroachment, he advised that the proposed rear yard deck is located 1.2 metres from the south side lot line, whereas 1.41 metres is required. He pointed out that the proposed setback is consistent with the side yard setback for the house required by the Zoning By-law. He indicated that based on an air photo review of buildings in the immediate context and a walk around the subject area, many houses in the immediate vicinity of the Property appear to have rear decks that are sized and located consistently with that proposed on the Property, including 121,117, 115, 114, 113, 110 Kendal Avenue and 170 and 168 Walmer Road and thus the proposal was in keeping with the neighbourhood character regarding this matter.

49. Moving to variance 7, by Zoning By-law 569-2013, the interior floor area of a secondary suite, or all secondary suites where more than one is permitted, must be no more than 45% of the interior floor area of the dwelling unit within which it is located. The zoning review identifies two of the units in the building as the main units within which the secondary suites are contained. It identifies these ‘main units’ in buildings A and B for the purpose of the zoning review. The proposed area of the secondary suites in Building A occupies 56.3% of the main unit while the proposed area of the secondary suites in Building B will occupy 57.0% of the main unit. Variances to the percentages of secondary units within the proposed building are being requested

50. The relative size of the proposed units to each other results primarily from the proposed unit mix, which comprises larger family-sized units. Secondary units are more commonly smaller units containing one, and sometimes two bedrooms, subordinate to a much larger main unit. In this case, the proposed unit mix, and the resulting percentage of floor area each occupies within the ‘main unit’ contribute to a greater range of rental housing options in the neighbourhood, consistent with Policy 3.2.1 of the OP, which states that “a full range of housing, in terms of form, tenure, and affordability, across the City, and within neighbourhoods, will be provided and maintained to meet the current and future needs of residents.” Policy 4.1.1 of the Official Plan permits the use of apartments and multi-unit buildings under four storeys in Neighbourhoods. In the case of multiplex and apartment developments, neither the Official Plan nor the Zoning By-law make any distinction on the size relationship between each unit. As such, Mr. Uens believes that the general intent and purpose of these policies taken together is maintained by approving this variance.

51. The eighth variance goes to the matter of building depth, The requested building depth variance is 26 metres. Mr. Uens points out that this measurement is taken to a portion of the building that is partly below ground beyond the rear wall of the building. The depth of the building above ground is 24 metres.

52. Mr. Uens conducted a desktop analysis of building depths within his three identified neighbourhood contexts. He pointed out that there is considerable difference in lot depth between the identified neighbourhood contexts, so he also calculated a ratio of building depth to lot depth in order to reasonably compare the results. In this regard, he advises that in the Expanded Major Street Context, the average lot depth is 29.2 metres while in the Interior Neighbourhood context the average lot depth is 38.8 metres.

53. He advises that the proposed development has a building depth to lot depth ratio of 65% when measured to the Zoning By-law measured below grade 26 metre building depth, and a building depth to lot depth ratio of 60% when measured to the 24-metre building depth located above ground.

54. For comparison purposes, in the Major Street Neighborhood context, he advises that he finds a prevailing building depth range of 14 to 22.5 metres, and a prevailing lot to building depth ratio of 47% to 67.5%. In the Expanded Major Street context, he finds a prevailing building depth range of 15 to 20 metres, and a prevailing lot/building depth ratio of 58.3% to 72.4%. In the Interior Neighbourhood context, he finds a prevailing building depth range of 17.5 to 21.5 metres, and a prevailing lot/building depth ratio of 46.5% to 58.5%.

55. He further observes that the building depths across the Major Street Neighbourhood and Expanded Major Street Context range generally from being by-law compliant to exceeding the By-law by a moderate amount, whereas in the Interior Neighbourhood there is a clear pattern of non-compliance with the building depth requirement in the By-law as 133 of the 177 properties in the Interior Neighbourhood context exceed a depth of 17 metres.

56. His final opinion with respect to building depth is that while the proposed building depth is marginally greater than the prevailing building depth in the contexts considered, the ratio of building depth to lot depth is consistent with the prevailing character within both the Major Street and Expanded Major Street Contexts, the two, in his view, of greatest importance in ascertaining fit and policy compliance. He adds that the proposed depth also fits with the pattern of lot depths in the Interior Neighbourhood context, both by virtue of it being generally consistent with the prevailing range of building depth to lot depth ratios and by it being consistent with the considerable number of buildings greater than 17 metres in depth characterizing the Interior Neighbourhood context.

57. As a result of this analysis, he suggests that the building depth variance does maintain the general intent and purpose of the OP.

58. The final variance analyzed is with respect to Floor Space Index, the requested Floor Space Index (FSI) here being 1.61 times the area of the lot.

59. As with building depth, he conducted a desktop analysis of his three Neighbourhood Contexts. Based on this desktop analysis, he advises that 7 of the 12 properties in the Major Street Neighbourhood appear to have an FSI greater than the Zoning By-law maximum of 1.0 times the lot area, ranging from 1.09 FSI to 1.64 FSI. He further advises that he found a prevailing FSI range of 1.03 to 1.61 FSI in the Expanded Major Street Context and 0.97 to 1.24 FSI in the Interior Neighbourhood context.

60. Having explained some interpretative art which must be applied to the data and air photos in order to derive his figures, Mr. Uens advised of the results of his analysis and concluded that the requested FSI variance is consistent with the prevailing FSI ranges in the Major Street Neighbourhood and Expanded Major Street contexts, the two contexts which are specifically relevant to the consideration of the variance against the Neighbourhood policies of the Official Plan. And regarding the policy wording that contemplates development with characteristics that exist in substantial numbers – he has calculated that in the Expanded Major Street context one third of the 72 properties have an FSI ranging from 1.54 to over 2.00.

61. Although it is of less importance for comparison purposes, he advises that in the Interior Neighbourhood context one quarter of the 133 properties have an FSI ranging from 1.24 to over 2.00.

62. His final opinion relating to whether the proposed FSI here maintains the general intent and purpose of the OP is that as the Property is in a Major Street context, where the OP’s policies intend some additional density beyond that which may be contemplated in the interior neighbourhoods, it is implicit that development in a Major Street context will exceed the as-of-right density figure, as well as potentially other metrics regarding the overall scale of a building, when the By-law requirements apply evenly across lots in both the Interior Neighbourhood and the Major Street contexts around the site. The OP also intends that development in a Major Street context may exceed zoning standards and prevailing standards in ways that may otherwise not be possible in interior Neighbourhoods. The extent to which the development may exceed these standards should be based on a qualitative analysis of fit and compatibility as opposed to a comparison of numerical figures. Mr. Uens is of the view that the proposed building will indeed fit this location.

63. As concern has been expressed by the owner and tenants of 305 Dupont Street regarding the views from and into the southeast facing windows on the first and second floors at 305 Dupont Street, Mr. Uens explains that as the building on 305 Dupont Street sits at an angle to its rear lot line, the windows are offset to the proposed building, facing away from the façade at an angle and looking primarily into and over the rear yard of 125 Kendal Avenue. He advises that a design decision was made so that the proposed building steps away at the rear to avoid obstructing these windows.

64. Concern was also expressed by that neighbour as to shadow impacts. In this regard, a shadow study was prepared by the project architect, Craig Race, and that was introduced into evidence. Clearly, there will be shadowing beyond the current circumstance. As Mr. Uens explains it however, the proposed development shadows the rear yard area of the property to the north incrementally in the morning and more significantly in the afternoon during the equinoxes. The study suggests that the shadow impacts would lessen into the summer months.

65. During his testimony, Mr. Uens suggested that in aid of preserving privacy regarding views into the windows on the south face of 305 Dupont Street, the Appellant could install 1.8m privacy screens along the north edges of the balcony and terrace at the rear of the proposed new building. Ms. Stewart went on to offer that if the Tribunal saw fit to require such features, it could be implemented through a condition imposed by the Tribunal on any approval.

66. Based upon the foregoing facts, Mr. Uens concludes that there will be limited overlook, privacy, and view impacts, and moderate shadow impacts on 305 Dupont Street resulting from the proposed development.

67. In assessing potential impacts on the properties abutting to the immediate south and east, 123 Kendal Avenue and 303 Dupont Street respectively, Mr. Uens unequivocally states that there will be little to no impacts on those properties resulting from the proposed development.

68. The Tribunal was advised by Mr. Uens of the fact that the Property is located within Site and Area Specific Policy 718 (SASP 718) under the OP (which amendment has been adopted but not yet approved by the Minister of Municipal Affairs and Housing), which is a Protected Major Transit Station Area around Dupont Station and is planned for a minimum population and employment target of 200 residents and jobs combined per hectare, which ties into the policy goals of the Downtown Secondary Plan and the OP with respect to encouraging density in proximity to transit stations.

69. Mr. Uens summarizes his OP review by saying that the proposed development is consistent with the OP’s series of vision statements and objectives about the future of the city established in Chapter 1, as well as the Plan’s various housing, growth, design, and environmental policy objectives for development within a Major Street Neighbourhood context, in the Downtown, and in an area proximate to transit and active transportation options.

70. He reinforces that by saying that the Property is in a location where the OP policies intend additional density beyond that typical of interior neighbourhoods. He says that the OP intends that development in a Major Street context may exceed zoning standards to a degree that may otherwise not be possible in interior Neighbourhoods.

71. And he concludes his OP summary by saying that the proposed development is consistent with the policies of the Neighbourhood designation having been designed to fit appropriately with the character of the Major Street Neighbourhood in which it is located, and appropriately limit light, view, shadow, and privacy impacts on adjacent properties. His opinion is that the proposed development is consistent with the prevailing characteristics of buildings and lots within the immediate Major Street Neighbourhood and the Expanded Major Street contexts. The Property will also maintain a 3-storey form, appropriate rear yard area, and front and side yard setbacks, and a front façade that is consistent with the character of buildings within the interior Neighbourhood.

72. Finally, reflecting upon the initiative which he was directly involved in during his time in the Chief Planner’s office, he asserts that the City’s emerging objectives around Major Street Neighbourhood intensification as recently stated in the June 15, 2022, Expanding Housing Options in Neighbourhoods Major Street report, to look at the opportunity and suitability of intensification on all Major Streets, even those within Neighbourhoods, are served by this proposal.

73. All of the foregoing lead him to say that, in his opinion, the proposed development, and the requested variances, are consistent with the general intent and purpose of the OP.

Planning Analysis – Zoning By-law Intent and Purpose

74. Mr. Uens went through a detailed analysis of the variances in terms of whether they were in keeping with the general intent and purpose of the Zoning By-law. This review very much paralleled his review of the variances as assessed against the OP provisions.

75. As such, that assessment will not be reviewed in detail in this Decision save for a couple of salient further explanations which he raised as part of the review.

76. Mr. Uens advised of his understanding that a report was to be brought to Council by the City Planning Department, apparently in April, which would recommend amendment of the Zoning By-law to delete the restriction on front wall access doors to secondary suites. Of course, this has not yet been addressed by Council and cannot be taken as a given outcome but it would represent the views of the City Planning Department on the issue.

77. He returned to the observation that the proposed building has been designed to limit issues of light, overlook, and privacy resulting from its overall depth in several ways. Regarding the building’s impacts on the property to the south – 123 Kendal Avenue – the proposed building has specifically been designed with windows only on portions of the floors facing south that would exist were the building built to an as-of-right condition. As the building is situated north of 123 Kendal Avenue, the shadow impacts resulting from the proposed building are negligible. With regard to the building’s impact on the property to the north - 305 Dupont Street - the north face of the building has been designed with no windows facing the lot to the north; above the 1st storey there is no 2nd floor balcony and the 3rd floor balcony is situated to the south portion of the façade; and a 0.51 metre step back along the north property line and a step back that exceeds the rear yard setback requirements in the By-law are incorporated into the building design.

78. With respect to FSI, he says that the intent of floor space index provisions is to regulate the overall scale of buildings developed in a neighbourhood, relative to lot size. In his view, it is important to consider a proposed floor space index of a development along with other provisions related to building height and setbacks, which informs the massing of a proposed building. A proposal with a much greater floor space index than is permitted can signal that the building is of a scale that is inconsistent with the intent of the By-law and may indicate one or more setback or height provisions are out of scale with what the By-law intends. However, it is also important to understand that FSI is not by itself determinative of the mass of a building. A building with a smaller FSI can have a greater mass and impact than a building with a higher FSI.

79. By way of example, In this case, he says that the proposed FSI does not suggest that the building constitutes overdevelopment. The building meets or exceeds the prescribed building setback standards, including that of the front, rear, and side yards. The building does not require height or main wall height variances. The proposed depth variance, as noted above, results in appropriately limited impacts on the adjacent properties to the north and south.

80. His opinion is that when an FSI variance is not accompanied by several other significant built form variances, a qualitative analysis of fit and compatibility is of greater importance than focusing solely on the numerical FSI figure, and in this case, the proposed development has been designed to fit compatibly into its context.

81. The upshot is that he concludes that the requested variances are in keeping with the general intent and purpose of the Zoning By-law.

Are the Proposed Variances Minor in Nature?

82. Mr. Uens explains that the approach to this question involves an assessment of impact. He says that the determination is not solely a mathematical exercise and, even though a variance may constitute a considerable numerical change, the effect of the requested variances may still be considered minor in context. In this instance, he is of the opinion that all of the variances meet the test of being minor in nature.

83. He reiterates his reviews of the distinct variances, that the proposed changes to the front of the building, which necessitate the first three variances, do not result in a building which appears larger than the predominantly three storey dwellings in the broader context, nor do the changes impact the existing front yard setback, which is fairly uniform along Kendal Avenue, that the first floor and front platform height result from the proposed development retaining and incorporating the existing brick structure, the rear platform setback matches the side yard setback.

84. With respect to the secondary suites sizes, the Zoning By-law permits various forms of multi-dwelling buildings on the site, including triplexes, fourplexes and apartment buildings, and makes no distinction regarding a subordinate relationship between the units within these buildings. As there is no appreciable impact on adjacent properties from the internal relationship of units in a multi-unit building and the zoning applicable to the site permits a range of multi-unit building types with no specified requirements for the size relationship between units, the requested secondary suite size variances can fairly be considered minor in nature.

85. With the further reduction in building depth and stepping of the rear part of the building width, he asserts that these changes result in a rear yard depth that, although it exceeds the by-law requirements, nonetheless establishes an appropriate relationship to the buildings and rear yards to the north and south. The building has been designed and massed with regard for adjacent properties and, in his view, appropriately limits impacts regarding light, view, and privacy on these properties, and can therefore be treated as minor.

86. As discussed under the headings of OP policy and with respect to the Zoning By-law, the requested FSI is consistent and compatible with the prevailing density of buildings in the Major Street Neighbourhood and Expanded Major Street contexts. The density results in a building that is massed similarly to many other buildings in the area with comparable impacts and can therefore fairly be considered to be a minor variance.

Desirable for the Appropriate Use of Development of the Property

87. On this test, Mr. Uens declares that the occupants of the proposed units will benefit from the project’s walkable location. The proposed development is located within walking distance of commercial uses, services, and several transit routes and is in close proximity to cycling routes.

88. He further points out that rather than demolish the existing structure entirely, the proposal utilizes the existing three storey brick structure to both maintain contextually appropriate building materials, and limit the environmental impacts generated by additional construction waste.

89. As part of his analysis, Mr. Uens also tested an alternative development option. He advised that having established this as an area where the city intends some form of contextually appropriate intensification on this property, he analysed deployment of a multi-unit building with a Garden Suite - which is permitted as of right – to see if an alternative approach would create less impact on the adjacent properties, particularly the 305 Dupont Street property.

90. Based on a massing scheme developed by Craig Race Architects, which illustrates a By-law compliant main house and a two-storey rear yard garden suite, the impacts created by the garden suite on 305 Dupont Street, in his view, are far more considerable than the impacts resulting from the proposed development. The two-storey mass of the garden suite would be situated immediately adjacent to the largest portion of the rear yard amenity space and would be directly in line with the south facing windows on 305 Dupont Street. The proposed development, by contrast, is stepped away from the rear yard and not in line with most of 305 Dupont Street’s south facing windows.

91. Also, as it comes out of a similar neighbourhood context and is very near to the Property, Mr. Uens advised the Tribunal of the recent approval and development of 536 and 538 Brunswick Avenue, which properties flank Dupont Street. In November, 2018, the Committee of Adjustment approved a bundle of 11 variances to permit the construction of six 3-storey townhouse dwellings facing Dupont Street with vehicle access from Brunswick Avenue. Those townhouses have since been constructed and have main wall heights of 13.5 metres, and a floor space index of 2.07 times the area of the lot. Mr. Uens provided photographic evidence of that development.

92. Mr. Uens compared that development with this proposal in the following ways. They both involve the construction of 6 family sized units in a 3-storey format on residential lots flanking Dupont Street. They also both have a density which exceeds the By-law maximum. However, the proposed development at the Property is comparatively much less dense, and, in his view, more suited to the residential characteristics of the Neighbourhood than is 536-538 Brunswick Avenue, which required variances to height, density, front yard, rear yard, and side yard setbacks, and minimum lot frontage, among others. By contrast, the proposed development on the Property meets all required yard setbacks and overall building heights, has a comparatively modest density, and still accommodates 6 family sized units.

93. Having advised of this project, Mr. Uens was asked in cross-examination by one of the neighbour parties what impact approval of this project may have on other properties in the Annex as a precedent. In response, Mr. Uens pointed to the text in Section 9.11 of the Downtown Secondary Plan to the effect that no building should be taken as a precedent for another but must meet the policy criteria of the Plan. Also, Mr. Uens again underlined the very distinct context within which the Property is situated as it straddles the Major Street context and the Neighbourhoods context. In this sense, and bearing in mind the particularities of its surrounding properties, it is unique.

94. Mr. Uens concluded by recommending allowance of the appeal on the basis that it meets the four tests under Section 45(1) of the Planning Act and would represent good planning. He coupled that with his recommendation that any such approval be made subject to the conditions which were agreed upon with the Annex Residents Corporation as set out in the Minutes of Settlement between the Appellant and that association, which were taken in as Exhibit 5. The details of that settlement and the agreed upon conditions will be discussed below with regard to the testimony of Henry Wiercinski, Vice Chair of the Planning and Development Committee of the Annex Residents Association.

The Arborist Evidence

95. Ms. Stewart then called as a witness Peter Wynnyczuk. Mr. Wynnyczuk holds an ISA Tree Risk Assessment Qualification, is a Utility Arborist under MTCU, a Butternut Health Assessor and an ISA Certified Arborist. He was qualified to offer opinion evidence on arboricultural matters in the proceeding.

96. As concerns about trees had been raised in a number of witness statements which were filed in connection with this appeal, Mr. Wynnyczuk was retained by the Appellant to prepare an arborist report and he did produce that report, which was dated February 10, 2023.

97. A site inspection was carried out by him on February 10, 2023, by ground visual means in winter “leaf off” condition to assess the trees on and adjacent to the site. He set out his findings regarding the existing trees and recommendations for construction in the Report. The Arborist Report inventories four trees, three of which are regulated. The trees had not been surveyed, but he verified their location on site using physical measurements based on location markers on the survey (fence posts).

98. The summary of his report was that Trees #1, 2, and 4 are outside of the zone of construction; no construction activities are expected to occur within the minimum tree protection zones and a permit will not be required from Urban Forestry. He recommended the installation of tree protection measures during construction.

99. Tree #3 is a Manitoba Maple, with an estimated diameter of 100 cm. As it was straddling the fence which marks the boundary between the Property and 123 Kendal Avenue, he described it to be an apparent boundary tree. He wrote that the tree is in a declining state with decay and damaged crown structure due to previous leader failures. There is one large limb to the south, which could fall with unexpected consequences due to load factors (snow, ice, wind, etc.). In his opinion, the tree is no longer viable to maintain, notwithstanding construction or lack thereof. The tree should be removed due to what is in his opinion a hazardous condition. Based on the City’s Private Tree By-law and Property Standards By-law, he recommended to the owner(s) of the tree that an application be filed notwithstanding construction to remove the tree, and that the tree be removed.

100. His conclusion was that only one unregulated tree is proposed for removal, and a permit may not be required if the tree is considered to be exempt under the City’s Private Tree By-law. All other trees on and adjacent to the site will be protected if the tree protection measures are observed.

101. In cross-examination by neighbours, he said that he considered there to be adequate space in the rear yard for the planting of up to two trees and potentially one in the front yard. He advised that this would typically be determined by staff in the Urban Forestry Division as part of the development approval process and could be the subject of a condition by this Tribunal.

The Other Witnesses

102. The Tribunal heard from two witnesses in support of the proposal and six opposed.

103. As noted above, the Tribunal heard from Henry Wiercinski, Vice Chair of the Planning and Development Committee of the Annex Residents Association (which appeared in the proceeding through its corporate embodiment, the Annex Residents Corporation). Although a representative of the Annex Residents Association originally filed a Party Witness Statement in late January, 2023 opposed to the development, discussions between representatives of the Association and the Appellant occurred between then and the hearing, which resulted in a settlement between those Parties that culminated in formal Minutes of Settlement which were filed in the proceeding as Exhibit 5.

104. Mr.Wiercinski explained that the Association facilitated contact with the Appellant and members of the community in order to explore the issues and try to find some resolution. The Appellant was willing to modify the proposal in ways that the Association found responsive to its concerns and those modifications were made to the plans which are now before the Tribunal in this hearing. He said that the reduction in depth, removal of balconies and limitation of the rooftop terrace were all meaningful changes. He offered the view that the OP does not require the elimination of shadow but that they be adequately limited. He further went on in cross-examination to say that, given the extensive number of properties which are reviewed by the Association, this did not appear to be a case where the quality of life in the abutting properties was likely to suffer deterioration.

105. The Appellant was also responsive to the tree issue and, as a result of the Association request, the arborist was retained to review the state of the trees and to produce the report which was considered in this hearing.

106. Mr. Wiercinski advised that the Association was sensitive to the City’s goals of accommodating growth and intensification and suggested that this proposal was in keeping with those objectives and could be supported in the modified form which was now before the Tribunal.

107. Mr. Wiercinski confirmed that the Association would request that the conditions contained within the Minutes of Settlement be imposed in the event that the Tribunal were to allow the appeal and authorize the variances.

108. Sharon Nutzati is the owner of 346 Dupont Street, which is on the north side of Dupont Street, essentially across from the Property. She operates a café out of this property known as First and Last. Her business has been in place for seven years but lately has been struggling due to the impacts of the Covid pandemic. However, with the advent of condominium development on Dupont Street, she has noticed an uptick in business and she believes that increasing density in the area can only help her business and other businesses located on Dupont Street. She believes that this proposal will be advantageous in that sense by adding new potential customers and make this a more vibrant neighbourhood.

109. Kate Hu and Dylan Moorehead are tenants of the second floor level apartment at 305 Dupont Street. They advised the Tribunal that the unit extends over the whole floor so that there are two bedrooms on the south side along with a kitchen and washroom and a third bedroom and living area which are on the north side facing Dupont Street. All of these rooms have windows.

110. Both of these witnesses expressed concern about how the amount of light entering, most particularly the westerly south facing windows, would be adversely affected. They also had concern over the potential for invasion of privacy in the rooms with south facing windows, most particularly the bedroom and washroom.

111. Ms. Hu indicated that, as incommodious as it appears in the photographic evidence, she and her roommates occasionally use the rear yard.

112. Questions were put to both witnesses in cross-examination as to whether requiring a privacy screen on the north end of the third floor balcony and the north end of the rear porch would help to mitigate the potential invasion of their privacy. Both acknowledged that it could be helpful but only if it were mandated to be at least 1.8 metres in height. Both witnesses said that they believed there to be a power imbalance among the Parties in this process and that if the proposal were approved and built, they would move away.

113. John Schofield lives at 174 Walmer Road, which lies a bit south of the Property and which is separated from the Property by the extended rear yards of 301 and 303 Dupont Street. Mr. Schofield believes that the proposal is out of character with the existing dwellings in the neighbourhood and that he will suffer an invasion of privacy due to the proposed removal of the Manitoba maple and the presence of the rooftop terrace. He would want there to be replacement tree planting.

114. In cross-examination, he acknowledged that the proposed condition regarding the reduction of the rooftop terrace would address potential overlook from the rear of the proposed rooftop terrace. He also acknowledged in cross-examination that two dwellings north of him at 178 and 180 Walmer Road were longer than his at 24m and 22m depth as against his building depth of 20m, and that both of those dwellings had third floor rear decks. Connected with this, he also acknowledged that there is variation in building depth throughout the neighbourhood.

115. Mr. Schofield echoes the concern about the expert resources available to the Appellant here and the burden of taking part in this process for a member of the community in that this was a three day hearing and involved a considerable commitment of his time. Like others, he is concerned that an approval of this application will stand as a precedent and bring further development which he believes will be out of character with the neighbourhood.

116. Terry Marescaux is an owner of, and has resided at, 118 Walmer Road for 22 years. He sees this as a case of two opposing views, those who see the Property as part of the residential fabric of Kendal Avenue, which is the side that he falls on, and those who see the Property as connected to Dupont Street, which he believes to be a view driven by financial considerations.

117. He believes that the Committee got it right in refusing the application and that the changes which have been made to the proposal have been too minor to address its excessive nature. However, he does acknowledge that removal of the rear second storey balcony, the shift and reduction in size of the third floor balcony, the elimination of the rear portion of the rooftop terrace and the requirement to employ 1.8m privacy screens on the rear balcony and porch were all improvements to the proposal.

118. Mr. Marescaux challenges the supposed virtue of the project in terms of providing family sized units. He is, and has been, an owner of house form multiplex properties in the City, which he rents. In this regard, he says that a typical two bedroom unit would fall in the range of 680-850 square feet and a three bedroom unit would fall in the range of 850-1500 square feet. He says that his tenants found this area range to be quite suitable for family purposes. As the proposed units on the Property will be beyond these ranges, he asserts that the effect of the proposal will be to remove four existing less expensive/affordable units in favour of six units that will be less affordable/more expensive. This takes him to the conclusion that the units here could be reduced in size and thereby reduce the extent of variance relief required and reduce the length of the building. This position was just put forward as a generalized assertion without the benefit of any reworked architectural drawings.

119. Mr. Marescaux took issue with various properties which Mr. Uens treated as properties contributing to the character of Kendal Avenue, most specifically the apartment buildings further south on Kendall Avenue. In particular, he doesn’t treat the fact that the Property flanks 303 Dupont Street as thereby connecting it to Dupont Street for neighbourhood character purposes. However, he does concede that multiplex dwellings do form part of the neighbourhood and he recognizes that decks above grade level are not a rarity but usually no higher than at the second storey. In this regard, he also acknowledged that the houses at 178 and 180 Walmer Road have rooftop terraces.

120. In cross-examination, he was taken through the details of the Committee approved, recently constructed, development at 536-538 Brunswick Avenue, which, as noted above, are the six three-storey townhouse units with rooftop terraces and the multiple variances including an FSI of 2.07 and an exceedance of permitted height. He acknowledged that though these units front on Dupont Street, they do have a Brunswick Avenue presence.

121. Marc Coulavin owns and resides at 172 Walmer Road. He and his family have lived there for about 30 years. That property is to the rear of the Property removed about two properties south and separated from the Property by the rear yards of 301 and 303 Dupont Street.

122. Mr. Coulavin takes the position that the proposal will not meet the OP policy of respecting and reinforcing the character of this neighbourhood. He characterizes the neighbourhood as being of 2 and 2.5 storey traditional house form dwellings. He resists the idea of a three storey structure like the proposal, especially one with a rooftop terrace, which he says is virtually non-existent in this area. The panel would parenthetically add here that it consistently challenged the witnesses who said that the streets in this area were not marked by three storey dwellings when the photographic evidence showed a plenitude of three storey dwellings. This may stem from a notion that a third storey which presents through a dormer is not a third storey but this panel does not view it that way, especially when the Zoning By-law height limit is met, as it is with the proposal.

123. Mr. Coulavin articulated many of the same points as are noted above from Mr. Marescaux, with particular reference to the premise that six units could be achieved on the Property with a structure which was much less large and more compliant with the Zoning By-law standards.

124. Mr. Coulavin characterizes the proposal as a mini-apartment and he says that this is not the intent of the OP or the Zoning By-law for this neighbourhood, despite the presence of apartments on this very block. However, the panel notes here that the proposal is not, by zoning definition, an apartment but rather two semi-detached dwellings, each with two secondary suites.

125. Mr. Coulavin says that 536-538 Brunswick Avenue is a project which fell through the regulatory cracks during the pandemic and should not be taken to characterize the neighbourhood. He called the proposed dwelling on the Property a hulking modern style box out of character with the neighbourhood even though the architect has taken pains to preserve most of the front façade in order to retain its existing architectural style.

126. Mr. Coulavin made assertions about the FSI of properties on Kendal Avenue at odds with the evidence of Mr. Uens and produced a bar graph of properties on the east side of Kendal showing all of them to be below the permitted 1.0 FSI. The graph was not produced by way of prior disclosure. It was produced during his testimony. Under cross-examination, he admitted that he did not put this together from data which he had secured but rather received it from another member of the community and he could not attest to its accuracy.

127. Janet Levenstadt is the owner of 305 Dupont Street. It is laid out as three dwelling units over three floors, the lowest partially below grade. Ms. Levenstadt does not live in this building. She advises that 8 tenants in all occupy the three units.

128. In her filed witness statements she has opposed the proposal on the basis of the impact that it will have on the obstruction of the westerly south facing windows of these units, the diminution of sunlight to the tenant space and the new shadows which will fall onto the building and her property.

129. In her witness statement, she asserts that these negative impacts violate the Ontario Human Rights Code and the Residential Tenancies Act although those violations were not particularized in any way in her witness statement or her oral testimony.

130. She strongly contests the Appellant’s position that the Property has a relationship to Dupont Street. She treats the Property to only be a part of Kendal Avenue due to its frontage there and has recourse to the filed survey to point out that no part of the Property lot touches Dupont Street.

131. A point of great contention for Ms. Levenstadt concerned the matter of provision for waste storage. She believes that the Appellant’s designer has ignored the need for a place to store waste bins. It was pointed out to Ms. Levenstadt that the site plan has shown a location in the rear yard east of the walkway to the rear porch to accommodate five extra-large bins. When this was pointed out to her, she took the position firstly, that the bins should have been shown on the rendering drawings and in their absence it was made to appear that there was more green, open space area in this part of the yard, which was misleading, and secondly that five bins were far too few for the number of persons who would be occupying the premises. When asked about the number of bins that are on her property, the Tribunal was directed to a photo of the crevice between her building and 303 Dupont Street where those bins are apparently stored but the photo was too dark to see just how many bins were there. And Ms. Levenstadt was not able to provide a definitive answer to that question

132. In the opening to her oral testimony, Ms. Levenstadt broke down her comments into six categories: 1) the inaccuracies in the application submissions; 2) questioning whether the information provided to explain and justify the proposal was reliable; 3) whether the project should be characterized as a major street proposal or as a neighbourhood proposal; 4) that the variance requests were not minor; 5) whether the proposal is good for the City or not; and 6) would restoration of the four unit dwelling with a new two unit garden suite be preferable.

133. On the first point, she identified a number of areas and items where she believed that the plans were lacking and where Mr. Race in his presentation to the Committee had omitted significant information or misled the Committee. Mr. Race did not appear before the Tribunal and the Tribunal has plans which depict the proposal clearly. These criticisms are really somewhat academic in that the Committee did not see fit to allow the variances and she supports the Committee decision of refusal.

134. With respect to the reliability of information, the Tribunal had detailed plans of the proposal and a fairly extensive array of aerial and ground related photographs of the Property and the vicinity. Mr. Uens secured lot data information from the City Planning Department and in the absence of complete direct reliable data as to lot depth and FSI, he analyzed the background information he had secured to deduce values for these matters. He conceded that this may give rise to some inaccuracy but that the information which he extracted was still valuable in the analysis. The Tribunal does not feel that it was misled.

135. Ms. Levenstadt was steadfast that the Property was not on a main street and that it was thus not appropriate to apply OP policy concerning major streets to this proposal. The members of the community who filed material, and spoke at the hearing, in opposition held much the same view.

136. On the question of whether the variance requests were minor, Ms. Levenstadt, in addition to identifying the impacts of loss of sunlight and invasion of privacy affecting the units at 305 Dupont Street, declared that the project, if approved, will set a bad precedent. It would physically dominate, overlap and overshadow 305 Dupont Street and in so doing it would not respect its adjacent neighbours and would cause 305 Dupont Street to deteriorate.

137. Regarding the matter of whether the proposal is good for the City, Ms. Levenstadt argues that the project will not produce affordable housing and her view is that if this is approved many lives will be made worse, among whom she identifies the many inhabitants of adjacent buildings on Dupont Street, Walmer Avenue and Kendal Avenue.

138. And then finally, on her sixth point, she finally asserts that the alternative proposal advanced by the Appellant, as explained by Mr. Uens, of the introduction of a garden suite in the rear yard in lieu of the present proposal, would be far superior, having considerably less impact on her property, and one which she would not be opposed to, especially as she understood it to be proposed on the basis that it could be done as-of-right.

ISSUES AND ANALYSIS

139. It is a fact that the Property fronts onto Kendal Avenue. It is also a fact that the Property has a substantial presentation to Dupont Street.

140. It is a fact that the Property flanks a lot which fronts on a major street, that lot being the property municipally known as 303 Dupont Street, which directly connects with the reference in Policy 4.1.5 which says “Lots fronting onto a major street, and flanking lots to the depth of the fronting lots, are often situated in geographic neighbourhoods distinguishable from those located in the interior of the Neighbourhood…”. In such cases, the OP says that a more intense form of development may be considered.

141. The Property occupies a unique context, which in turn allows, and calls for, a unique treatment responsive to that context.

142. Mr. Uens recognized the hybrid character of the Property which he characterized as the Immediate/Major Street context and then proceeded to delve into the OP to determine the appropriate policies which would apply to the development proposal here and how those policies should be applied in this instance.

143. His characterization of the neighbourhood context is admittedly not the pro forma contexts as described in Policy 4.1.5 of the OP but rather an interpretation of the intent of the OP as a collection of policies. The Tribunal does not see his approach to this unique situation as unwarranted or mistaken.

144. The context identified by Mr. Uens and the consequent consideration of major street objectives as part of the analysis is thus warranted.

145. Many of those who spoke in opposition argued that the proposed building would be out of character with the neighbourhood. This was buttressed by suggestions that the predominant scale of dwellings in the neighbourhood was two storey. The photographic evidence in the proceeding makes plain that this is simply not true. The panel’s perception is that the prevalent form of dwellings is three storey, whether you wish to describe some of them as such or as 2 and a half.

146. In any event, the proposal underwent a modification to bring it within the permitted height under the Zoning By-law, and the main wall height will be less than that at 10.5m. It would not be reasonable to say that the Appellant should be denied the permitted height,

147. Furthermore, although there will be alterations to the front elevation, most particularly to create two additional entrances, one of which is largely below grade, the front elevation is to be maintained very substantially as it exists at present.

148. The depth of the proposed building came under intense objection from members of the community. As was explained in the evidence, some of the requested variance relief relates to depth of building below grade and therefore not evident on a cursory view of the site.

149. The at-grade depth of building at 24m turns out to be at the high end of depth of building in the neighbourhood but it is of significant note to the Tribunal that very proximate properties, at 178 and 180 Walmer Road, measure out to 24m and 22m in depth and there did not appear to be any evidence of incompatibility of those dwellings with their neighbours. These were also the properties which had rooftop terraces at the rear of the dwelling that those who testified in this hearing made no particular reference or objection to.

150. The most strenuous attack on the building depth related to the incursion of the proposed building into the view plane of the occupants of the westerly portions of the building at 305 Dupont Street. The drawings do demonstrate such an incursion and there will undoubtedly be some impact on view and diminution of light.

151. Although the proposed building has been designed without any windows on its north face, due to the now single balcony on the third floor at the rear of the proposed building and the presence of the rear porch, there is also the objection that these features will generate issues of invasion of privacy into the 305 Dupont Street windows.

152. It is clearly the case that persons outside at the rear of the Property would have a view of the south wall windows on 305 Dupont Street but not necessarily in them to the extent that window coverings are employed when occupants are in those rooms (which window coverings, drapes, are already apparent from the photo produced by Ms. Levenstadt).

153. The irony of the complaint is that the 13 windows which are on the south facing wall of 305 Dupont Street represent multiple opportunities for invasion of privacy of those who might use the rear yard space at the Property. In this sense, the decision to downplay the rear yard area in favour of a deeper building and greater interior floor space is a rational response to this impact.

154. This panel does not accept the premonitions of doom advanced by Ms. Levenstadt or her perception that the presence of the new building will degrade not only her property but all of the surrounding properties. The Tribunal has no legitimate reason to believe that any of these properties will become untenable for living or that they will become unrentable. New construction occurs all the time in Neighbourhoods and although that changes the status quo, there is no instance known to this panel where that has resulted in the uninhabitability of surrounding properties.

155. The Tribunal accepts the data generated by Mr. Uens with respect to FSI and his analysis of that data, from which he concludes that the requested variance to permit 1.61 FSI is entirely within the ranges found in this neighbourhood and its contexts as he determined them, most particularly the Major Street context where additional density is anticipated by the OP.

156. The Tribunal accepts the conclusions of Mr. Wynnyczuk regarding the state of the trees on and around the site. It seems readily apparent from his report that the Manitoba maple now presents serious risk of falling limbs and is a proper candidate for removal. However, as tree canopy is a valuable feature in this neighbourhood, the Tribunal also believes it important that some tree planting occur in the rear yard. The detailed decision on this matter is likely best left to the Urban Forestry staff of the City in terms of species, caliper and location and the Tribunal will simply impose a condition to achieve that.

157. And with reference to the rear yard, the Tribunal does not know if the number of waste bins shown on the site plan drawings will be adequate but as there may be opportunities for tandem storage of bins or alternate approaches to bin storage on the Property, the Tribunal believes that this operational issue is best left to the Appellant and the City to address.

CONCLUSION

158. Having considered all of the evidence as documented above, the Tribunal finds the determinations and analysis of Mr. Uens to be compelling, persuasive and defensible on the characterization of the proposal and the application of OP and Provincial planning policy applicable to it.

159. The Tribunal accepts Mr. Uens’ parsing of the OP and his conclusion that the proposal is effectively located on a Major Street, an area where the City’s current OP policies contemplate variation in building form to accommodate greater density than is otherwise contemplated within the city’s interior Neighborhoods, and where emerging Neighbourhoods policies being developed as part of the Expanding Housing Options in Neighbourhoods initiative contemplate greater opportunities for growth.

160. This result stems from the unique characteristics of the Property and its context. It is for this reason that this Decision should not stand as a precedent for those properties which are squarely located in the Interior Neighbourhood.

161. Despite the two significant variances sought for building depth and FSI, it must be remembered that the proposal complies with the required front, side and rear yard setbacks, and building height, and reflects a measured, appropriate change to the site, which supports the OP’s guiding principles related to the provision of housing and allowing for gradual Neighbourhood change.

162. The fact that the Appellant worked with the City Planning Department to modify the proposal in order to meet concerns expressed by them, and to have apparently satisfied that Department and to have, on the basis of further commitments, come to terms with the Annex Residents Corp. and have entered into Minutes of Settlement which have led to that association supporting the modified proposal, does bear weight in the Tribunal’s consideration of this appeal.

163. On the basis of the evidence read and heard, the Tribunal is satisfied that each requested head of variance relief can fairly be characterized as minor, maintains the general intent and purpose of the OP, maintains the general intent and purpose of the Zoning By-law and is desirable for the development or use of the Property.

164. The Appellant and the Annex Residents Corp. agreed that they would recommend that any approval to be given by the Tribunal should be on three conditions: 1. That the proposal shall be constructed substantially in accordance with the Site Plan and Elevations dated January 20, 2023 as prepared by Craig Race Architecture Inc.; 2. The Appellant shall submit a complete application for a permit to injure or remove a privately owned tree as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection; and 3. The accessible portions of the roof shall be limited to the areas labelled as “Roof Top Deck” on the Proposed 4th Floor Plan dated January 20, 2023 as prepared by Craig Race Architecture Inc.

165. In addition to these conditions, during the course of the hearing, Appellant’s counsel, based upon the evidence and submissions, suggested that the Appellant would be prepared to accept a condition requiring the placement of solid screens at least 1.8m high along the entire northern edge of the 3rd floor rear balcony and the northern edge of the rear porch. These installations are intended to assuage, at least in part, the concern over invasion of privacy at 305 Dupont Street. The Tribunal is prepared to impose such conditions.

DECISION AND ORDER

166. The Tribunal ORDERS that the appeal is allowed, on the conditions stipulated below, and the following variances are approved:

167. 1. Section 150.10.40.1.(1)(B), By-law 569-2013 A pedestrian entrance leading exclusively to a secondary suite is not permitted in a front wall of a detached house or semi-detached house. The proposed two entrances leading to the proposed secondary suites will be located along the front wall. 2. Section 150.10.40.1.(2)(A), By-law 569-2013 A secondary suite is a permitted use provided that an addition or exterior alteration to a building to accommodate a secondary suite does not alter or add to a main wall or roof that faces a street. The altered dwelling will alter a front main wall that faces a street. 3. Section 10.5.40.60.(1)(A)(i), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first storey of the building above established grade may encroach into the required front yard setback 2.5 m if it is no closer to a side lot line than the required side yard setback. The proposed front porch will encroach 2.44 m into the required front yard setback and will be located 0.9 m closer to the side lot line than the required side yard setback (0 m from the north side lot line). 4. Section 10.10.40.10.(6), By-law 569-2013 The maximum permitted height of the first floor above established grade is 1.2 m. The altered dwelling will have a first floor height of 1.46 m above established grade. 5. Section 10.5.40.50.(4)(A), By-law 569-2013 The level of the floor of a platform at a front main wall may be no higher than 1.2 m above established grade. The proposed front platform will be 1.46 m above the established grade. 6. Section 10.5.40.60.(1)(C), By-law 569-2013 A platform without main walls attached to or less than 0.3 m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required rear yard setback 2.5 m if it is no closer to a side lot line than a distance equal to the vertical distance between the highest part of the floor of the platform and the average elevation of the ground at the side of the platform. The proposed ground floor platform will encroach less than 2.5 m into the required rear yard setback and will be located 1.2 m from the south side lot line, whereas 1.41 m is required. 7. Section 150.10.40.40.(1), By-law 569-2013 The interior floor area of a secondary suite, or all secondary suites where more than one is permitted, must be no more than 45% of the interior floor area of the dwelling unit within which it is located. The proposed area of the secondary suites in Building A will occupy 56.3% and will comprise 78.3 m² in suite 1, 93.9 m² in suite 2 and 133.9 m² in the primary unit. The proposed area of the secondary suites in Building B will occupy 57.0% and will comprise 66.7 m² in suite 1, 79.7 m² in suite 2 and 110.2 m² in the primary unit. 8. Section 10.10.40.30.(1)(A), By-law 569-2013 The maximum permitted building depth is 17 m. The altered dwelling will have a depth of 26 metres below grade and a depth of 24 metres above grade. 9. Section 10.10.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index is 1.0 times the area of the lot (292.5 m²). The altered dwelling will have a floor space index of 1.61 times the area of the lot (470.9 m²).

168. The Conditions are: 1. That the proposal shall be constructed substantially in accordance with the Site Plan and Elevations dated January 20, 2023 as prepared by Craig Race Architecture Inc.; 2. The Appellant shall submit a complete application for a permit to injure or remove a privately owned tree as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection; 3. The accessible portions of the roof shall be limited to the areas labelled as “Roof Top Deck” on the Proposed 4th Floor Plan dated January 20, 2023 as prepared by Craig Race Architecture Inc.; 4. The Appellant shall instal a 1.8m high solid screen along the north edges of the third floor rear balcony and the rear porch; and 5. The Appellant shall settle a tree planting plan for the Property with the City of Toronto Urban Forest Division.

G. Swinkin

Panel Member