Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
2023-04-13
22 118391 S45 19 TLAB
Kurup v. Mallinson, 2023 ONTLAB 65
DECISION AND ORDER
Issuance Date:
April 13, 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):
L. KURUP
Applicant(s):
BARRETT MUNICIPAL CONSULTING
Property Address:
20 LONG CRES
COA File No.:
21 230974 STE 19 MV
TLAB Case File No.:
22 118391 S45 19 TLAB
Hearing Date(s):
February 16, 2023, March 16, 2023
Decision Delivered By:
T. Yao
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Owner/Appellant | L. Kurup, J. Hospedales | R. Cara |
| Owner's planner | F. Romano | |
| Next door Neighbours | J. Watson and M. Mallinson | |
| Person seeking status | M. McDonald |
INTRODUCTION AND CONTEXT
1Ms. Kurup and Mr. Hospedales intend to demolish the two-storey house at 20 Long Crescent and erect a replacement house. To achieve their desired design, they seek the variances in Table 1 below. The Committee of Adjustment denied the application on Feb 9, 2022. The owners appealed, and so this matter comes before the TLAB.
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Table 1. Variances sought for 20 Long Cres
| # | Variance | Required/Permitted | Proposed |
|---|---|---|---|
| Variances from Zoning By-law 569-2013 | |||
| 1 | Floor Space Index | 0.35 times the area of the lot: | 0.80 times the area of the lot: |
| 2 | Front yard landscaping | 75% of front yard | 71% |
| 3 | Max. driveway width | 3.2 m wide | 5.25 m wide (17.22 ft) |
| 4 | Max. building height | 11 m | 11.02 m |
| 5 | Side main wall height | 8.5 m | 10.74 m (this variance applies only to one exterior main wall) |
| Variances from Zoning By-law 438-861 | |||
| 6 | Max. building height | 10 m | 10.98 m |
THE LEGISLATIVE AND POLICY FRAMEWORK
3The Provincial Policy Statement and the Greater Golden Horseshoe Growth Plan are also applicable considerations but contain a high level of generality. For example, the Provincial Policy Statement discourages lot creation on prime agricultural land and prefers municipal water and sewage over private systems; these policies are not strongly applicable to this situation. I find that these documents offer little guidance for exceedances to a built form on a single lot in an urbanized area.
4Under the Planning act and applicable case law, the variances from Zoning By-law 569-2013 must cumulatively and individually:
- maintain the general intent and purpose of the Official Plan;
- maintain the general intent and purpose of the Zoning By-laws;
- be desirable for the appropriate development or use of the land; and
- be minor.
EVIDENCE
5I qualified Mr. Romano as able to give opinion evidence in land use planning. Mr. Cara called no other witnesses.
ANALYSIS, FINDINGS, REASONS
6This hearing was subject to a procedural order of Chair Lombardi of August 3, 2022. Ms. Watson and Mr. Mallinson (the right and left immediate neighbours) did not respond to the TLAB's request that they elect to become either parties or participants. The reason for their failure, as Ms. Watson explained to me, was that both persons were dealing with serious health issues and were in no position to instruct a lawyer. Belatedly, they tried to remedy their omission by retaining a lawyer, Mr. Bronskill, and a planner, both being retained by the two neighbours jointly. In July 2022, Mr. Bronskill on the two neighbours' behalf, brought a motion to be relieved from the TLAB's deadline. In support of the motion was a planner's report (author Daniel Igelman) and extensive document disclosure (more than 600 pages). Simultaneously, the City also brought a motion for the same relief, since the City Solicitor had also not made any election in a timely fashion.2
7The motions for allowing party status were argued before Chair Lombardi and he ruled that they could become participants but not parties.
8The rules say that a participant cannot call other witnesses, and so Mr. Igelman could not be called to explain his report, nor could they cross examine Mr. Romano.3 As a result Ms. Watson and Mr. Mallinson elected to combine in a single presentation, delivered by Ms. Watson only, in which she incorporated Mr. Igelman's planning conclusions:
As we were granted Participant Status pursuant to the Interim Decision and Order dated October 17, 2022, we are precluded from calling witnesses and instead intend to testify as local knowledge experts providing our opinion about the character of the neighbourhood using the data and photographs Mr. Igelman prepared and our experience living in the neighbourhood.
Ms. Watson also submitted their shadow study. They elected not to continue Mr. Bronskill's retainer, given that the Rules do not permit a participant to cross-examine. The City was also unsuccessful in trying to become a party; it used its participant status to ensure that should the application be granted; certain conditions be incorporated in the TLAB decision. It requested that I note an email submission made after the hearing from Mr. Dougherty, its lawyer.4 I have done so in Footnote 4.
9A final issue is a motion brought by Mr. McDonald, a third neighbour, who lives a block or so away. His motion was received in January 2023. He sought to add himself to the hearing and convened an urgent teleconference on Feb 14, 2023, two days before the hearing. As a result, Chair Lombardi made a second procedural order (released later) in which he stated:
After an extensive review of the file on February 11th , I became aware of new information which caused me to step back and reconsider whether I could continue in my role as the Member seized in this appeal proceeding and, more importantly, whether I should continue to hear the matter. . . after careful consideration and serious thought, I concluded that the only appropriate course of action was to immediately recuse myself as the presiding Member in this matter in order to maintain the integrity and transparency of the TLAB process.
10Mr. McDonald appeared at the video hearing on February 16, 1023, and repeated his request to be added as a party. He was opposed by Mr. Cara, the owners' lawyer, on the basis of Chair Lombardi's first decision. I agree with Mr. Cara that the spirit of that decision was not to further delay the hearing and to limit persons who have not made a timely election for parties. Mr. McDonald excused himself and did not participate in the hearing.
Height and FSI
11The main issues are height (building height and main wall height) and FSI (Floor Space Index). I have an independent obligation to review any application independent of the experience level of the litigants.
12I begin first with height and FSI; moving targets because of changes in plans. The first zoning notice (July 30, 2021) advised they needed a variance for a height of 11.88 m (7.2 m permitted) and an FSI of 1.32. The second, a zoning "self examination" (my word) dated Feb. 2, 2022, requested that the Committee of Adjustment grant them a height variance of 11.3 m and an FSI of 0.9375, which the Committee did, on February 9, 2022. The third revision appears by way of an "Applicant's Disclosure". The numbers are decreased again; height to 11.02 m and FSI to 0.80, which are the present numbers6 for approval.
13The building height of 7.2 m permitted by the Zoning By-law presented a second moving target, this time by tribunal proceedings t(he Ontario Land Tribunal, also called OLT) totally out of the hands of the parties. By-law 569-2013 sets the height limit for single detached houses in the Beach area is 10 m for pitched roofs and 7.2 m for flat roofs. I think it is fair to say that only an architect or plan examiner can determine which is which. Both maximum heights are set out in the current by-law 569-2013. Some ten years later the OLT is dealing with appeals of this 2013 by-law; and the last issue to be dealt with is the building height, one of the issues here.
14Mr. Romano has been monitoring the progress of this appeal, and stated in his planning report of June 27, 2022, that the Ontario Land Tribunal rendered a decision on October 12, 2021, increasing the maximum height permitted from 10 m to 11 m.7 (This is based on the assumption that we are dealing with a pitched roof, which is still the case.) However, the document which the OLT issued was only a "decision in principle", with the final document coming later, to permit City lawyers to craft the detailed wording. That final document is dated December 7, 20228 — after Mr. Igelman's report, but before this hearing.
15December 2022 is also after Chair Lombardi's first ruling, so I assume Mr. Bronskill was "out of the picture", and could not advise about this complicated subject. Although the City informed Ms. Watson of the final OLT approval, the exact legal status for building heights is confusing, particularly before December 7, 2022. It does not help that the OLT has not issued any decision that discusses the issues, but only has ratified a settlement between the parties. I conclude it is very difficult for any member of the public to test Mr. Romano's conclusion that the applicable legal maximum height is 11 m.
16Mr. Igelman wrote in July 2022:
With respect to approved variances to height, there were only 3 out of the 82 decisions within the neighbourhood study area that approved a height greater than or equal to that of the proposed dwelling. With respect to approved variances to side exterior main wall height, there were only 2 out of the 82 decisions within the neighbourhood study area that approved a side exterior main wall height greater than or equal to that of the proposed dwelling.
This opinion has been superseded by the changes to the roof etc., made by Ms. Kurup and Mr. Hospedales subsequently, in negotiations with the City. Neither Ms. Watson nor Mr. Mallinson were invited. The plan examiner, Jordan Vanderhoeven, now has certified that the applicable height limit is 11 m. This third plan examination (January 11, 2023) undercuts Mr. Igelman's earlier planning opinion, as presented by Ms. Watson, because of the changes in plans.
17The second issue is the 0.80 FSI where 0.35 is permitted maximum. I am prepared to investigate independently to apply the Planning Act tests. I took Mr. Romano's Long Crescent decisions and sorted them by ascending FSI in Figure 2. Except for 26 Long, they range from mid forties to the mid sixties, while 26 Long is an outlier. However, I find this property has now been built and is part of the neighbourhood character.
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Figure 2. Long Crescent Committee of Adjustment FSI decisions
| Year | Address | FSI |
|---|---|---|
| 2015 | 56 Long Cres | 0.38 |
| 2013 | 46 Long Cres | 0.475 |
| 2015 | 16 Long Cres | 0.49 |
| 2008 | 42 Long Cres | 0.56 |
| 2012 | 34B Long Cres | 0.57 |
| 2013 | 46 Long refused | 0.58 |
| 2007 | 29 Long Cres | 0.62 |
| 2012 | 36 Long Cres | 0.62 |
| 2012 | 34A Long Cres | 0.65 |
| 2014 | 26 Long Cres | 1.05 |
19There is also the recent TLAB decision of 26 Glen Stewart (a severance creting two lots) with an FSI of 0.76 (west) and 0.63 (east). This is a rear lot neighbour to the Watson and Mallinson families and was the former single detached house beside Mr. McDonald. The severance was granted by Chair Lombardi in 2018. One of these numbers, 0.76 FSI, is pretty close to what Ms. Kurup and Mr. Hospedales seek.
20The thrust of Ms. Watson's and Mr. Mallinson's objection is that the new house will protrude past their present rear walls (that is, create an "overhang"). See the middle box in Figure 4. Even if Mr. Igelman had testified and Mr. Bronskill had effectively cross-examined Mr. Romano, I accept Mr. Romano's thesis that the architect (Fine Lines Design) has designed a sensitive structure that steps back as the building gets higher. For one thing, the footprint is 15.46 m long where 17 m is permitted, so the owners have not used the full building length permitted. Second, the step backs, which are purposely designed to minimize impact, can be measured in terms of FSI per floor as follows:
Table 3 Gross Floor Area and FSI per floor
| Gross floor area | FSI | |
|---|---|---|
| 1st floor | 132 m2 | 0.386 |
| 2nd floor | 87 m2 | 0.254 |
| 3rd floor | 56 m2 | 0.163 |
| Total | 277 m2 | 0.803 |
21This shows two things, first that even if we had an as-of-right two storey building, we would be in the 0.80 range since 2 x.386 = .772. Second there are FSI decreases; the second floor is 2/3 the area of the first floor and the third floor is 2/3 of the second floor.
Figure 4. Site plan in comparison with the Watson house (right) and Mallinson house left. Aerial Photo of Long Cr. and Leonard Cr.
22I now consider whether this kind of "overhang" exists elsewhere in the neighbourhood. I find that it does. The bottom box shows that because the street curves down to the right, the fronts of the houses are all in a sawtooth pattern and if they were all the same length, the rear walls would also be saw-toothed. This variability is exacerbated by the fact that people do not decide to all renovate or tear down all in the same year. As Mr. Cara said, unfortunately those with legacy homes like the two neighbours, are in a transition period where some, but not all houses have undergone this second wave of redevelopment. I marked similar juxtapositions with white arrows where this has happened. These situations also form part of the neighbourhood character. Based on this, and other evidence given in the hearing by both sides, I find the four tests are met and Ms. Kurup's and Mr. Hospedales' appeal is allowed.
Whether new notice is required
23The final issue is that a change has been made because of City negotiations after the Committee of Adjustment decision. Unless I make an order under the relevant section of the Planning Act, the owners are obliged to give public bodies, such as the City, an opportunity for further comment. No useful purpose would be served since the City has participated in this hearing, albeit as a participant only, and in any event, it is settled jurisprudence that this order is routinely made when changes are in a downward direction, which is the case here.
24If there is an error in this decision, could the person involved please contact the TLAB at talab@toronto.ca.
DECISION AND ORDER
25I find the deletion of the coverage variance and subsequent reduction in FSI to be minor and make the order under s. 45(18.1.1) of the Planning Act that no further notice is necessary. I authorize the variances set out in Table 1 on condition that:
- Variances 1, 3, and 4 related to floor space index, maximum building height and maximum height of side exterior main walls, shall be limited to three storeys, and shall be constructed substantially in accordance with the following plans, all dated 2022-07-28 and prepared by Fine Lines Design:
a. Site Plan Drawing Z02.1.
b. South (Front) Elevation Drawing Z03.1.
c. West (Side) Elevation Drawing Z03.2.
d. North (Rear) Elevation Drawing Z03.3.
e. East (Side) Elevation Drawing Z03.4.
The driveway shall be installed with permeable pavers, and Variance 2, related to the driveway width, shall be constructed substantially in accordance with Site Plan Drawing Z02.1, dated 2022-07-28 and prepared by Fine Lines Design.
The owner shall submit a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.
The owner shall submit a complete application for a permit to injure or remove a privatelyowned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.
T. Yao
Panel Member
a) call witnesses and cross-examine witnesses; . . .d) make opening and closing submissions;. . . (TLAB Rules of Practice and Procedure)
Footnotes
- As explained in the decision, the present 2013 Toronto zoning by-law 438-86 is still under appeal at the Ontario Land Tribunal and the zoning examiner reviews applications under both by-laws. Although the height related appeals are finally decided as of December 2022 the applicants request this variance nonetheless as kind of an insurance policy and since the disparity between the two systems of height measurement are not in question I will accede to Mr. Cara's request. The old by-law used the crown of the road as a baseline; the new by-law does not.
- 6. On March 1, 2022, the Appellant appealed the Decision of the Committee to the TLAB (the "Appeal"; TLAB File No. 22 118391 S45 19 TLAB). 7. The Notice of Hearing for the Appeal was issued on April 28, 2022, with a scheduled hearing date of August 3, 2022. The last day to file a Notice of Intention to be a Party in relation to this matter was May 30, 2022. 8. At the time of the Appeal and the issuance of the Notice of Hearing, the City Solicitor had not received instructions to oppose the Appeal at the TLAB. 9. At the July 19, 2022, City Council meeting, Councillor Bradford brought a motion authorizing and directing the City Solicitor to attend the TLAB to oppose the Appeal regarding 20 Long Crescent. 10. Because the City Solicitor did not receive notice of the Councillor's intention to instruct the City Solicitor to oppose the Application until an advanced stage in the appeal process, the City recognizes that all of the relevant procedural deadlines have passed. (City motion grounds)
- 13.8 A Participant to a Proceeding may not:
- "City Council directed the City Solicitor to attend the hearing of this matter in opposition of the Application, or to negotiate a resolution of the appeal. This direction came after the TLAB imposed deadline for status requests had passed. As such, the City filed a motion for party status after the deadline to do so had passed, shortly before the first hearing event. Prior to the first hearing of this matter and having received the City's motion for party status, the Applicant engaged with the City in an attempt to resolve the City's issues with the Application. Community Planning staff and the Applicant's consultant had discussions which resulted in revised plans which satisfied City planning. As such, the City continued to seek party status at the motion hearing, in order to ensure the revised plans, and agreed-upon conditions were implemented in the TLAB's decision, should the Application be approved. The City was granted participant status in the matter and has sought to have conditions included in the decision, should this appeal be granted."
- There is also a contradictory paragraph in the document that refers to an FSI of 0.42, which is not explained.
- 1) The Applicant has made a series of revisions to the proposed dwelling including to: (a) the roof which was redesigned to be sloped instead of flat; and (b) the interior layout on each of the storeys in order to reduce the overall scale of development; which have had the cumulative effect of reducing the proposed Floor Space Index (to 0.80), the building height (to 11.02 m), and eliminating the need for any variances related to the number of storeys. (Applicant's Disclosure, dated May 18, 2022, and filed by Mr. Cara.)
- The Toronto Zoning By-law 569-2013 provision is still before the Ontario Land Tribunal (OLT) as it is under appeal. On October 12, 2021, the OLT issued a decision which requires the City to respond with implementing zoning by-law provisions which will raise the height permission by 1.0m. While this zoning by-law revision has not yet been finalized in an OLT Order, it will effectively reduce the order of magnitude of the building height variance and permit an overall height of 11.0m. (Romano Witness Statement)
- City Zoning By-Law 1277-2022 (OLT)