DECISION AND ORDER

Issuance Date:

February 10, 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):

MD Nurul Huda Khan

Applicant(s):

Jaise Raju Kanneth (Cm Designers & Engineers)

Property Address:

215 Greyabbey Trail

COA File No.:

20 204626 ESC 25 MV (A0240/20SC)

TLAB Case File No.:

22 185327 S45 25 TLAB

Hearing Date(s):

December 12, 2022

Decision Delivered By:

TLAB Panel Member B. Martin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Name

Representative

Applicant

J. Kanneth

Appellant

MD Nurul Huda Khan

Z. Fleisher

Party

City of Toronto

J. Jakubowski

Party

G. Hueniken

K. Stitt

Party

CM Designers & Engineers

Party

F. Ahmed

Party

C. Penney

Participant

P. Perron

Expert Witness

M. Rendl

For MD Nurul Huda Khan

Expert Witness

R. Stephens

For C. Penney

INTRODUCTION AND CONTEXT

1MD Nurul Huda Khan is the owner of the property at 215 Greyabbey Trail, a 479.7 m2 property in Guildwood Village, an older established community in the south part of the former City of Scarborough. Like other similar neighbourhoods in North York, York and Etobicoke, Guildwood Village is attracting new construction in the form of additions to existing house structures or the complete replacement of the existing dwelling.

2Mr. Khan wishes to construct a new 393.92 m2 two-storey detached dwelling with an integral garage on the property. Minor variances for maximum lot coverage, maximum exterior main wall height and maximum permitted floor area (FSI) are required to permit the dwelling as designed. Mr. Khan’s requests for relief were refused by the Committee of Adjustment. Mr. Khan appealed the decision to the Toronto Local Appeal Body (the “Tribunal”).

3Mr. Khan was represented by counsel, Zachary Fleisher, who called a land use planning consultant, Martin Rendl, to provide the Tribunal with qualified expert evidence in land use planning.

4Gerda Hueniken, a Party to the hearing, is the owner of the property at 213 Greyabbey Trail, the neighbouring property to the east of 215 Greyabbey Trail. Prior the start of the Tribunal’s hearing, Ms. Hueniken and Mr. Khan reached a settlement with the respect to the variances requested, and in so doing, agreed to specific changes to the proposed Architectural Plans that will be enforced by this decision if the appeal is granted. Ms. Hueniken was represented by counsel Kristie Stitt, who did not call any witnesses.

5Christine Penney (a Party to the hearing) and Pascal Du Perron (a Participant to the hearing) are existing residents of Guildwood Village. Both appeared at the hearing in opposition to the requested minor variances. Their concerns were both site specific to the impact of the proposed minor variances on abutting properties, and just as important, the precedent that would be set by granting the variances as requested.

6Ms. Penney called an urban design consultant, Robert Stephens, to provide the Tribunal with qualified expert evidence in urban design.

7The City of Toronto was represented by counsel Jessica Jakubowski who did not call any witnesses.

THE LEGISLATIVE AND POLICY FRAMEWORK

Provincial Policy – S. 3

8A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2020 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’).

Variance – S. 45(1)

9In 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.

MATTERS IN ISSUE

10The issue before the Tribunal is whether the variances individually and cumulatively meet the four tests of the Planning Act and are consistent with provincial policy. The specific issues with respect to the variances requested were the impacts of gross floor area and FSI, on abutting properties excluding Ms. Hueniken’s at 213 Greyabbey Trail, and the precedent that would be set if the appeal is granted and the minor variances approved.

SUMMARY OF EVIDENCE

11Mr. Rendl, a qualified expert in land use planning, provided contextual, policy and opinion evidence on the matter before the Tribunal.

12To assist in his review of the minor variances requested, Mr. Rendl defined a Neighbourhood Study Area (NSA) pursuant to Policy 4.1.5 of the City of Toronto Official Plan. The variables he chose to define the immediate and broader contexts of the NSA included zoning, prevailing building types and scale, lot size and configuration, street pattern, pedestrian connectivity, and natural and human-made features.

13The Geographic Neigbourhood boundaries of Mr. Rendl’s NSA were:

Morningside Avenue on the west;
Lake Ontario on the south;
West Hill Creek and its associated open space on the east; and
On the north, the properties fronting onto the north side of Fintona Avenue.

14Within the NSA there are 238 properties, all with detached dwellings one or two storeys in height.

15Also as directed by Policy 4.1.5, Mr. Rendl had to identify the immediate context of the properties affected by the proposed development at 215 Greyabbey Trail, which he identified as:

Odd street numbers on Greyabbey Trail: 137 – 217
Even street numbers on Greyabbey Trail: 110 – 220
75 Fordover Drive, and
2 -14 Denney Court

16Mr. Rendl described the local planning framework as it relates to the minor variances requested as follows:

The property at 215 Greyabbey Trail is designated Neighbourhoods in the City of Toronto Official Plan and zoned RD (*130) Residential Detached.
The building height permitted in an RD (*130) zone is 9.0 m for a sloped roof dwelling and a maximum of two storeys.
The maximum lot coverage is 33%.
By applying Exception 130, Mr. Rendl confirmed the maximum FSI is 0.5.

17Mr. Rendl’s expert land use planning opinion with respect to the variances were:

the requested minor variances are consistent with the Provincial Policy Statement
the minor variances requested individually and cumulatively satisfy all four tests of Section 45(1) of the Planning Act for the approval of a minor variance.
The development represents good planning’

18Mr. Rendl’s specific evidence in support of his expert land use planning opinion was as follows:

Based on his NSA, the prevailing building type and scale is detached houses that are 1 or 2 storeys in height.
The character of the Geographic Neighbourhood that should be protected is detached housing that does not exceed 2-storeys in height.
The City of Toronto Official Plan anticipates neighbourhoods like Guildwood Village will change over time because neighbourhoods are stable but not static.
These changes will occur through enhancements such as additions and infill housing.
The word “respect” in Official Plan Policy 2.3.1.1 does not mean duplicate.
Floor Space Index (FSI) on its own is not a reliable indicator of scale and must be considered along with the other performance standards (building length, depth, height, and setbacks) that also inform and shape, massing and scale of a building.
The key consideration is not the FSI number on its own, but rather how the requested total floor area is deployed in the building that will be on the lot.
The proposed floor area is reasonably deployed.
The proposed lot coverage of 36.88% is minor and not of a scale or magnitude that materially reduces the amount of space on the lot for landscaping and outdoor amenity areas.
The new two-storey detached dwelling is compatible with the neighbourhood, the immediate context and it will contribute to the continued stability of Guildwood Village.
The requested minor variances do not create undue adverse impacts on abutting properties.

19Mr. Rendl explained that within the immediate context of properties affected by the proposed developed there are lots smaller in size than what is the prevailing size of lots in the NSA. The property at 215 Greyabbey Trail is one of those lots as are properties on Denney Court an at 13, 203 and 201 Greyabbey Trail.

20Mr. Rendl provided evidence related as to how Mr. Khan had reduced the number of variances requested from 8 to 3. In doing so, Mr. Rendl reminded the Tribunal that all the zoning by-law requirements with respect to setbacks were now compliant.

21Mr. Rendl also advised the Tribunal that a report from the Director of Community Planning, Scarborough District did not recommend refusal of the requested minor variances and commented the proposed building was largely within the footprint required by Zoning By-law 569-2013 and that the FSI variance is high only because of an unusually small lot size.

22Mr. Stephens’ expert evidence in urban design focused on the potential impacts of the minor variances requested. He was concerned about the impacts on the immediate, broader, and historic contexts of Guildwood Village.

23In his evidence Mr. Stephens described how Guildwood Village was influenced by the British “Garden City Movements of the early 20th Century”. When completed in the 1960’s, the community was defined by one and two-storey detached houses with pitched roofs on large lots with generous front, rear and side yard setbacks, street access driveways and integral garages. He also acknowledged the neighbourhood character has largely remained unchanged and where improvements were made to the existing houses or new houses constructed, they maintained the original Guildwood style.

24Both Mr. Rendl and Mr. Stephens gave specific evidence regarding the massing of the proposed house and the impact it would have on the public realm and the impact it would have on abutting side and rear yard properties.

25Mr. Stephens expert evidence in urban design concluded that the minor variances requested individually and cumulatively do not satisfy all four tests of Section 45(1) of the Planning Act for the approval of a minor variance.

26In support of his expert opinion, Mr. Stephens told the Tribunal:

The requested minor variances will allow a house structure that is out of scale with abutting houses and have a dramatic effect on the streetscape.
The minor variances if approved will become precedent setting in the broader community and destabilize the character of the NSA.

27Ms. Penney and Mr. Du Perron both emphasized that the proposed minor variances if approved could have a destabilizing effect on Guildwood Village. Neither live in the immediate context area identified by Mr. Rendl or mentioned by Mr. Stephens. They were also members of an organized group of Guildford Village residents who are passionate about their community as is and worried about what it might become.

28In his evidence, Mr. Rendl stated that except for Ms. Hueniken, no other property owner either abutting or in proximity to the property at 215 Greyabbey Trail elected Party or Participant status for the hearing. This statement was acknowledged by Mr. Stephens during cross examination.

ISSUES AND ANALYSIS

29After considering all the evidence and opinions presented by the witnesses, parties, and participants, I must agree with Mr. Rendl that the three minor variances meet the four tests required pursuant to Section 45(1) of the Planning Act and are consistent with provincial policy.

DO THE VARIANCES MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE OFFICAL PLAN

30The City of Toronto Official Plan clearly anticipates and recognizes that areas of the city designated Neighbourhoods are and will continue to change. The policies in the Official Plan that promote these outcomes also include policies that protect Neighbourhoods from development that is obviously out of character. The requirement in the Official Plan to have specific performance standards in zoning by-laws that reflect the character of existing Neighbourhoods ensures new development respects the character of a community but does not have to duplicate it.

31The requested minor variances will not completely control the design aesthetic (or desired duplication) of the proposed house vis-à-vis the existing character described by Mr. Stephens, nor should they. They will however allow a house form that is emblematic of the prevailing house forms in the Geographic Neighbourhood.

DO THE VARIANCES MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW

32The proposed variances will permit a house that is detached, two-storeys in height, and compliant with the yard performance standards in Zoning By-law 569-2013. These are the performance standards in Zoning By-law 569-2013 that are key to controlling the character of Guildwood Village. Clearly the requested minor variances maintain the general intent and purpose of the zoning by-law.

ARE THE VARIANCES MINOR WITH RESPECT TO ANY ADVERSE IMPACTS THEY MAY HAVE ON NEARBY PROPERTIES

33In evidence given by both Mr. Rendl and Mr. Stephens, the size of the property in relation to the Geographic Neighbourhood did influence the qualitative and quantitative impact of the minor variances requested. Mr. Stephens did not present any evidence to suggest the variances for main wall height and coverage were at issue vis-à-vis the lot size but did focus on the numerical and percentage increase of the requested Floor Space Index variance.

34Mr. Stephens argued that because of the fact the lot was smaller, it was even more important to minimize the quantitative imbalance so to improve the qualitative. I will say that had the Floor Space Index variance been directly the result of a dramatic addition of height to the house, or a dramatic encroachment into one of the yards, Mr. Stephens may be correct. However, neither of those minor variances were requested. Mr. Stephens could also not suggest how floor space from the proposed house should be removed in order to reduce the minor variance requested for FSI.

35Mr. Rendl’s opinion that the FSI of 0.69 was reasonably deployed on the lot and entirely accommodated within the three-dimensional envelope defined by all the zoning by-law’s performance standards is preferred to the opinion of Mr. Stephens.

ARE THE VARIANCES APPROPRIATE FOR THE DEVELOPMENT OF THE PROPERTY AT 215 GREYABBEY TRAIL.

36The requested variances will not lead to the destabilization of the Neighbourhood, will allow a new two-storey detached house on the property and are therefore appropriate for the development of the property.

CONCLUSION

37I was extremely impressed with the passion and vigilance of Ms. Penney, Mr. Du Perron, and the group of concerned residents they were representing. Because of their participation during the Committee of Adjustment hearing and the hearing of TLAB, they were able to advocate for changes to the proposed development that resulted in fewer variances requested and therefore influenced the overall impact the proposed building will have in the immediate and broader community.

38I was also impressed with the evidence of the expert witnesses. It was unfortunate however that so much evidence about massing was focused on the impact of the proposed building from the street (public realm) rather than the rear and side yards. Mr. Rendl did speak to those other areas of the property as did Mr. Stephens, but it was Mr. Stephens’ evidence that re-enforced the fact that community change happens in all four corners of a property, not just the two in front.