Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File: 21 221592 S45 07 TLAB
DECISION AND ORDER
Issuance Date: April 5, 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): ISMATULLAH AMIRI
Applicant(s): ISMATULLAH AMIRI
Property Address: 3176 WESTON RD
COA File No.: 21 161711 WET 07 MV (A0311/21EYK)
TLAB Case File No.: 21 221592 S45 07 TLAB
Hearing Date(s): March 22, 2023
Decision Delivered By: TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
Owner A. M. PERSAD
Primary Owner S. PERSAD
Expert Witness (Late Election) M. BARTON
Applicant/Appellant I. AMIRI
INTRODUCTION AND CONTEXT
1This Hearing arises from an Appeal by Mr. Amiri (Applicant) of a September 14, 2021, decision of the Etobicoke York Panel of the City of Toronto (City) Committee of Adjustment (COA) refusing an application for the property known as 3176 Weston Road (subject property).
2The purpose of the application is to permit the reduction of the front yard soft landscaping requirement to 20%, whereas Zoning By-law 569-2013 requires a minimum of 75% of the front yard landscaping must be soft landscaping on the subject property (Application).
3The subject property is located on the west side of Weston Road, south of Verobeach Boulevard; it is designated ‘Neighbourhoods’ in the City Official Plan (OP) and zoned Residential Multiple Dwelling (RM) under the City Zoning By-law 569-2013.
4THE REQUESTED VARIANCE
- Section 10.5.50.10. (1)(D), By-law 569-2013
A minimum of 75% of the required front yard landscaping must be soft landscaping (29.3 m2).
A total of 20% of the required front yard landscaping will be provided as soft landscaping (7.8 m2).
5The Applicant appealed the matter to the Toronto Local Appeal Body (TLAB) and the TLAB set a Hearing date for July 7, 2022.
6The only Parties in this matter are the Applicant, Mr. Amiri, and Sunil Persad (Owner), the owner of the subject property.
Prologue
7To date, the TLAB has convened three (3) Hearing days in this appeal matter - July 7, 2022, September 8, 2022, and November 23, 2022. Each Hearing resulted in the TLAB issuing an Adjournment Order, on the request of Mr. Persad, to allow the Applicant additional time to prepare and submit filings in support of the requested variance.
8The proceedings also required the TLAB to schedule a ‘virtual’ Teleconference call on October 25, 2022, at which only the Owner, Mr. Persad, attended. The principal reason for the Teleconference was to discuss the sudden and unexpected withdrawal by Mr. Amiri as the Applicant and the Owner’s Representative in this appeal matter.
9During that Teleconference, Mr. Persad expressed to the TLAB that Mr. Amiri’s withdrawal was unforeseen and that he was unaware that Mr. Amiri had failed to submit any documentation in support of the Application.
10Mr. Persad was reminded that a TLAB Hearing is a hearing ‘de novo’ and that the onus lies with him to establish the basis for the requested relief as if no prior disposition had occurred.
11He was further reminded that following two previous adjournments of the matter, the TLAB had set a Hearing date for November 23, 2023, and that failure to file any evidence to support why the TLAB should grant the variance being requested would be unacceptable.
12At the commencement of the November 23rd Hearing, it quickly became apparent that Mr. Persad had neither retained new representation nor an expert witness. Furthermore, no evidence in support of the Application had been submitted to the TLAB. Mr. Persad conceded that he was not in a position to present his case.
13However, he again requested that in light of Mr. Amiri’s rather late notice of his disengagement from the appeal and lack of filing any supporting materials, the Panel Chair adjourn the proceedings to allow him additional time to seek and retain new representation and submit evidence.
14He also asked that if his request was granted, the TLAB then consider scheduling a new Hearing date in late February or March 2023, to allow him sufficient time to retain representation and prepare his case.
15Given the unique circumstances in this matter and the fact that there were no other Parties, I reluctantly agreed to his request. On November 30, 2022, I issued an Order adjourning the proceedings and directed TLAB staff to schedule a ‘return-to’ Hearing date on March 22, 2022.
16The TLAB issued a new Notice of Hearing, with new submission due dates for document disclosure and an Expert Witness Statement, the most relevant and significant for Mr. Persad being February 10, 2023.
17In that Order, I also directed Mr. Persad to submit the following documents to the TLAB in advance of the Hearing: an updated Site Plan, a survey plan for the subject property, a revised list of variances sought, a corresponding Zoning Examiner’s Notice, and any other supporting documents by the requisite due dates.
18In an email to the TLAB dated February 10, 2023, Mr. Michael Barton (MB1 Urban Planning Consultants) advised the TLAB that he had been recently retained by Mr. Persad as an expert planning witness in the appeal matter.
19He stated that he was unable to file his Expert Witness Statement and supporting evidence by the submission due date (February 10, 2023) and requested additional time to finalize and submit that document.
20In response, I directed TLAB staff to advise Mr. Barton that the request would be heard by way of an Oral Motion Hearing and he was directed to file a Notice of Motion (Form 7) in this regard.
21The TLAB set a Hearing date for March 15, 2023, to hear the Oral Motion.
22The Motion requested that the TLAB admit his Expert Witness Statement into the record as a late filing and that it be admissible as evidence through expert testimony by Mr. Barton at the March 22, 2023 Hearing.
23Nevertheless, in the interim, Mr. Barton filed his Expert Witness Statement (Form 14) and Acknowledgement of Expert’s Duty (Form 6) on February 21, 2023, both of TLAB staff marked ‘Late’ as required by TLAB protocol.
24At the March 15th Oral Motion Hearing, Mr. Barton advised that upon being retained by Mr. Persad and after reviewing the previous drawings prepared by Mr. Amiri, he identified a potential for errors in the calculations of the requested zoning relief by Mr. Amiri that had been before the COA.
25He asserted that Mr. Amiri incorrectly revised the requested variance relief as a percentage of the total front yard area as opposed to a percentage of the required front yard landscaping, which requires 50% of the total front yard to be soft landscaping.
26In submitting the Application to the COA, Mr. Barton asserted that Mr. Amiri requested 20%, instead of calculating the actual proposed soft landscaping of 40% of the front yard landscaping.1 Mr. Barton submitted that this error was based on the total front yard area as opposed to the minimum required front yard landscaping of 50% of the total front yard area.
27As a result, Mr. Barton subsequently contacted the City Zoning Examiner on the file to seek confirmation of this error and confirmation of the actual zoning relief required to reflect the current plans.
28Unfortunately, the Zoning Examiner was unable to provide this confirmation in advance of the February 10, 2023 deadline and, therefore, Mr. Barton was unable to finalize his Expert Witness Statement (EWS) and file the document with the TLAB by the requisite filing due date.
29Mr. Barton’s Motion sought relief from the TLAB in the form of an extension of the filing due date to provide the TLAB with the correct wording for the variance being sought by Mr. Persad.
30In a decision dated March 20, 2023, I granted the Motion. I found that it was appropriate and procedurally fair to allow Mr. Barton’s late Expert Witness Statement filing to be entered into the record and admissible as evidence through expert testimony by Mr. Barton at the Hearing on March 22, 2023.
THE LEGISLATIVE AND POLICY FRAMEWORK
31Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (Growth Plan).
32Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
SUMMARY OF EVIDENCE
33As the only Party in this matter, Mr. Persad attended the Hearing on March 22, 2023, along with his expert planning witness, Michael Barton, who was retained on February 1, 2023.
34I advised those present that I had visited the site, familiarized myself with the surrounding neighbourhood, and reviewed the pre-filed materials in preparation for the hearing, but it is the evidence to be heard that is of importance.
35I heard from Mr. Barton in support of the Application. The following three (3) exhibits were entered into the record as evidence:
Exhibit 1 – Site Plan Drawings, dated August 23, 2021;
Exhibit 2 – Mr. Barton’s Expert Witness Statement (EWS), dated February 21, 2023; and,
Exhibit 3 - Zoning Review Waiver, dated March 19, 2023.
36Mr. Barton noted that the subject property has a frontage of 11.06 m on Weston Road and is currently occupied by a two-storey, semi-detached dwelling that shares a party wall with the semi-detached dwelling at 3178 Weston Rd.
37The front yard of the subject property is currently fully paved including the existing driveway running along the south side adjacent to 3174 Weston Rd. There is no soft landscaping within the front yard.
38The proposed development will include the construction of a zoning-compliant new covered deck on the front of the existing semi-detached dwelling which will align with the existing window on the north side of the front wall face and encroach as permitted by the Zoning By-law into the required front yard setback.
39In conjunction with the construction of the front deck, the Applicant is seeking approval for one variance which will modify the existing driveway and parking configuration in the front yard through the provision of new soft landscaping between the proposed front deck and the Weston Road property line.
40Section 10.5.50.10(1)(D) of Zoning By-law 569-2013 requires a minimum of 75% (33.39 m2) of the required front yard landscaping to be soft landscaping. The requested variance proposes front yard soft landscaping in the amount of 17.79 m2 which is 40% of the minimum landscaping required and 20% of the total front yard area.
41The intent of the variance is to reduce the amount of hard landscaping currently within the front yard.
42Mr. Barton submits that utilizing the definition of ‘front yard’ in Zoning By-law 569-2013, he calculates that the front yard area of the subject property is 89 m2 (958 ft2) and that the soft front yard landscaping proposed equals 17.79 m2 (or 20%) of the total front yard area of the subject property.
43He submits that Mr. Persad’s former representative incorrectly calculated the proposed variance for soft front yard landscaping as 7.8 m2 instead of 17.79 m2, which was presented to the COA.
44More specifically, he asserts that the proposed soft front yard landscaping area of 7.8 m2 represents 20% of the total front yard as opposed to 20% of the minimum required front yard soft landscaping area. (my emphasis)
45This miscalculation, he asserts, led to the Committee’s refusal of Mr. Persad’s Application.
46Mr. Barton clarifies that while the variance sought by Mr. Persad that is now before the TLAB remains consistent in seeking relief to permit 20% of the required front yard landscaping to be soft landscaping, whereas 75% is required, the wording of the variance has now been slightly modified to reflect the correct area of front yard soft landscaping being proposed, 17.79 m2.
47To support his evidence, Mr. Barton referred to an email chain between himself and a City Zoning Examiner included with his Zoning Review Waiver which was entered into the record as Exhibit 3.
48That correspondence confirms that City staff concur with Mr. Barton’s revised calculations for the requested variance for front yard soft landscaping and that the language of the variance being sought is now accurate.
49On this basis, Mr. Barton sought a new Zoning Examiner’s Notice from the City to formally confirm the required variance in time for the Hearing but was unable to do so.
50Instead, he advises the TLAB that the Owner wishes to proceed with the Zoning Review Waiver (Exhibit 3) filed with Mr. Barton’s Expert Witness Statement and that, as a result, he accepts full responsibility for identifying, correctly and completely, the variance associated with the proposal.
51Mr. Barton, then, addressed the assessed character of the proposal through the lens of the neighbourhood context, identifying a study area as directed by the Official Plan.
52He described the geographic neighbourhood as follows:
The subject property is situated within the RM (Residential Multiple) zone designation where the predominant building typology includes one and two-storey, semi-detached dwellings within lots of consistent frontage, depth and area.
Properties in the Immediate context with frontage on Weston Road with individual driveways and surface parking in front of the dwelling.
Individual site driveways along one side of each property provide surface parking and, in many cases, access to a private garage.
A significant number of properties that incorporate an extension of a paved area from the driveway into the front yard providing additional parking and vehicular circulation/maneuvering opportunities.
Numerous examples of properties in proximity to the subject property on Weston Road that have a paved driveway in conjunction with additional paving and/or hard landscaping in the front yard, particularly in front of the main entrance to the dwelling. (e.g., #’s 3186, 3172, 3164, 3150, 3148, 3142, 3138, 3136, 3147, 3145, 3149, 3167, 3171, 3175, 3177, 3187, and 3189)
ISSUES AND ANALYSIS
53I accept Mr. Barton’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement (PPS) and conforms to the Growth Plan for the Greater Golden Horseshoe (Growth Plan).
OFFICIAL PLAN
54Mr. Barton provided an analysis of applicable Official Plan policy. OP Policy 4.1.5 contains within it development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.
55Of the criteria set out in OP Policy 4.1.5, Mr. Barton specifically highlighted criteria e) and g) as being relevant to the variance requested for relief from the minimum required front yard soft landscaping.
e) prevailing location, design and elevations relative to the grade of driveways and garages;
g) prevailing patterns of rear and side yard setbacks and landscaped open space.
56On the basis of the record of the photographic evidence and analysis provided by Mr. Barton regarding existing and prevailing conditions related to driveways and total front yard landscaping for properties in the immediate context, I am satisfied that the proposed landscaping, parking and driveway configuration will be consistent and compatible with neighbouring properties.
57I find that the proposed variance will increase the amount of soft landscaping on the subject property relative to existing conditions and as a percentage of the total front yard landscaping, and I am satisfied that the proposal will respect the prevailing physical character of properties in both the broader and immediate context.
58I concur with Mr. Barton that the proposal before the TLAB is also reflective of, and consistent with properties outside of the NSA that have been identified and grandfathered by the City of Toronto through Site Specific Zoning By-laws 78-2017 and 79-2017, with regards to permitted front yard soft landscaping.2
59Properties within those By-law specific areas have existing front yard landscaping of less than 50%, ranging from 25% to 45%. When soft landscaping is considered as a percentage of the total front yard area, those existing values range from 24% to 44%, with the median and average being 32%.3
60Therefore, I find that the proposal maintains the general intent and purpose of eth Official Plan.
ZONING BY-LAW
61Mr. Barton highlighted Section 4.1.8 of the Official Plan:
“Zoning By-laws will contain numerical site standards for matters such as building type and height, density, lot sizes, lot depths, lot frontages, parking, building setbacks from lot lines, landscaped open space and any other performance standards to ensure that new development will be compatible with the physical character of established residential Neighbourhoods.”4
62He submitted that the performance standard for minimum front yard soft landscaping in the Zoning By-law has been established to ensure that appropriate proportions of the minimum front yard landscaping are soft landscaping in order to ensure consistency and compatibility with neighbouring properties.
63He also asserted that this minimum zoning performance standard is intended to assure that new development respects and reinforces existing built form neighbourhood character.
64I am satisfied that the proposed total of 17.79 m2 of soft landscaping, although not compliant, will significantly increase the soft landscaping in the front yard of the subject property from that which currently exists. I am also satisfied that the requested relief to the minimum required front yard soft landscaping reflects the built form conditions that exist in substantial numbers and are the most frequently occurring in both the broader and immediate neighbourhood contexts.
65Therefore, I find that the proposed variance maintains the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND
66I find that the proposed variance will not result in any undue adverse impacts of a planning nature and that the degree of relief sought from the ‘as-of-right’ zoning standard is reflected on other existing properties within the neighbourhood that represent the most frequently occurring condition.
67The requested variance will increase the soft landscaping area of the subject property relative to existing conditions in terms of the area and percentage of the total landscaped area in the front yard.
68Based on the above finding, I also find that the proposal is desirable for the development of the land.
CONCLUSION
69I am satisfied that the requested variance meets the tests of s. 45(1) of the Planning Act and represents good planning.
70Pursuant to s. 45(18.1) of the Planning Act, on an appeal, the TLAB may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to persons and public bodies entitled to receive notice subject to the exception in s. 45(18.1.1). The TLAB is not required to give notice if in its opinion the amendment to the original application is minor.
71In this matter, I concur with Mr. Barton that the variance before the TLAB remains consistent in the request for relief sought and that the language of the variance has been amended to reflect the actual area in square metres of front yard soft landscaping to be provided.
72I find that the amendment is minor, and no further notice is required.
DECISION AND ORDER
73The Appeal is granted, and the decision of the Committee of Adjustment dated September 14, 2021, is set aside. The variance in Appendix A is authorized, subject to the condition contained therein.
D. Lombardi Panel Member
APPENDIX A
Requested Variance to the Zoning By-law
Section 10.5.50.10.(1)(D)
A minimum of 75% of the required front yard landscaping must be soft landscaping (29.3 m2)
A total of 44.5% of the required front yard landscaping will be provided as soft landscaping (17.79 m2)
CONDITIONS OF APPROVAL
The proposed development shall be constructed substantially in accordance with the Site Plan drawing prepared by Nesta Design Co. dated August 23, 2021, and attached as Attachment 1.
The proposed front yard soft landscaping shall be installed on the subject property no later than one (1) year following the issuance of a building permit for the proposed attached front deck.
Footnotes
- Mr. Barton’s Expert Witness Statement, p. 10, Para. 40.
- City of Toronto Community Planning Information Report to the Committee of Adjustment for 3176 Weston Rd., dated September 2, 2021, p. 2. The City adopted a Zoning By-law Amendment that recognized the existing driveway widths, front yard landscaping and front yard soft landscaping for 16 properties along Weston Road between Wilson Ave. and Bradstock Rd. The subject property was not included in the Zoning By-law Amendment.
- Exhibit 2 – Mr. Barton’s Expert Witness Statement (dated Feb. 21, 2023), p. 11, para. 47.
- Ibid., p. 18, para. 75.