Abouchar v. Saber, 2023 ONTLAB 66

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-04-12

File:

22 161107 S45 08 TLAB

Citation:

Abouchar v. Saber, 2023 ONTLAB 66

DECISION AND ORDER

Issuance Date:

April 12, 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):

J. A. Abouchar

Applicant(s):

A. Shams

Property Address:

12 Otter Cres.

COA File No.:

22 120565 NNY 08 MV

(A0176/22NY)

TLAB Case File No.:

22 161107 S45 08 TLAB

Hearing Date(s):

Thursday, March 30, 2023

Decision Delivered By:

TLAB Chair D. Lombardi

Registered Parties:

Representative

Owner/Party

M. R. Saber

M. Mazierski

Applicant

A. Shams

Appellant

J. A. Abouchar

Party (TLAB)

C. Warren

Party (TLAB)

E. Aaron

Party (TLAB)

S. C. Davidson

INTRODUCTION AND CONTEXT

1This Hearing arises from an appeal by Juli Ann Abouchar (Appellant) of a decision of the North York Panel of the City of Toronto (City) Committee of Adjustment (COA) to approve variances, with conditions, for the property known as 12 Otter Crescent (subject property).

2The purpose of the application is to permit the demolition of the existing house on the subject property and the construction of a new two-storey residential dwelling with an integral garage.

3The subject property is designated ‘Neighbourhoods’ and zoned RD – Residential Detached (x1428) under the City Zoning By-law 569-2013 and R7 under the former North York Zoning By-law 7625.

Prologue

4The Toronto Local Appeal Body (TLAB) set a date to hear the appeal for November 10, 2022.

5After reviewing the pre-filed materials in this matter prior to the scheduled Hearing, the presiding Panel Member directed the Parties to attend a TLAB-led, non-binding and confidential mediation On October 27, 2022, as permitted by Rule 20.2 of the TLAB’s Rules of Practice and Procedure (Rules).

6Although the Parties could not arrive at a settlement of the outstanding issues at that mediation session, they agreed to a second TLAB-led mediation session scheduled for November 18, 2022.

7The Parties agreed to continue discussions privately outside of the TLAB in the interim.

8The November 18th mediation also did not conclude with a settlement; as a result, the TLAB set a new date of February 24, 2023, for a contested Hearing in the matter.

9On the morning of February 24th, prior to the scheduled Hearing, the presiding Panel Member was advised of an email from Mr. Mazierski, the Applicant’s legal representative, sent the evening before, informing that the Parties had reached a ‘last-minute’ settlement.

10His email included an attached draft Minutes of Settlement (MOS) and a set of revised Site Plan drawings reflecting the agreed to matters outlined in the MOS.

11The following individuals attended the Hearing on February 24th: Mr. Mazierski, and the Applicant’s expert planning witness, Jonathan Benczkowski; Ms. Abouchar; and Ms. Elize Hertz, representing Party Eli Aaron. They confirmed that a settlement had been reached.

12Craig Warren and Sharene Davidson, both of whom had elected Party status, were not in attendance.

13In his opening remarks, Mr. Mazierski advised that, in addition to the issues resolved through the MOS, the Applicant had also agreed to a minor modification to the north and south elevations that were not reflected in the revised drawings before the TLAB.

14He noted that this minor modification would require the Applicant to obtain a new Zoning Examiner’s Notice confirming the variances requiring approval to permit the redevelopment of the subject property.

15Given this new information, the presiding Panel Member adjourned the Hearing and directed that the TLAB set a new Hearing date for March 30, 2023, to allow the Applicant to obtain an updated Examiner’s Notice and the Parties to review corresponding revisions, if any, to the final set of Site Plan drawings.

Proposal

16The COA approved six (6) variances to permit the Applicant to construct a new dwelling. Following the appeal of the COA’s decision by Ms. Abouchar, the Applicant revised the proposal by:

• eliminating the request for building length;

• eliminating the rear yard setback request;

• removing the elevated second floor platform;

• reducing the depth of the proposed front platform/porch by 15.24 cm; and

• adding articulation to the south elevation.

17The settlement reached by the Parties in this matter results in further revisions to the proposal, including additional architectural articulation to the portion of the south elevation closest to the front lot line and the slight reduction in the proposed height of all side exterior main walls facing the side lot line.

18As a result, the Applicant has eliminated Variances Nos. 2 and 4 from the original application before the COA as well as slightly reducing the height of the exterior main walls in Variance No. 5.

19THE REQUESTED VARIANCES

1. Chapter 10.20.40.10.(2), By-law No. 569-2013

Maximum Height of Specified Pairs of Main Walls

The permitted maximum height of all side yard exterior main walls facing a side lot line is 7.5m.

The proposed height of the north and south side exterior main walls facing a side lot line is 7.96m.

2. Chapter 10.20.40.70.(1), By-law No. 569-2013

Minimum Front Yard Setback

The required minimum front yard setback is 5.36m.

The proposed front yard setback is 4.13m.

3. Chapter 10.20.30.40.(1), By-law No. 569-2013

Maximum Lot Coverage

The permitted maximum lot coverage is (35) percent of the lot area (116.27m2).

The proposed lot coverage is (37.3) percent of the lot area (123.75m2).

4. Section 14-B(8), By-law No. 7625

Maximum Building Height

The maximum permitted building height is 8m.

The proposed building height is 10.08m.

THE LEGISLATIVE AND POLICY FRAMEWORK

20Provincial 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).

21Variance – 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 Planning Act (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

22In attendance at the March 30th Hearing were Messrs. Mazierski, Mr. Benczkowski, and Mss. Abouchar and Hertz. I heard from Mr. Benczkowski in support of the settlement.

23He identified a neighbourhood study area in accordance with the direction of the Official Plan (OP).

24He described the geographic neighbourhood as follows:

• There is considerable diversity in terms of architectural styles and built forms.

• There is no consistent building massing, lot frontage or front yard setbacks.

• All the properties in the study area permit two storey dwellings with a building height of 10 m and a maximum lot coverage of 35%.

• Newer, replacement dwellings are typically larger, have an integral garage, and feature architectural styles with either flat or small, pitched mansard roofs.

• The neighbourhood is experiencing considerable regeneration of the housing stock.

ISSUES AND ANALYSIS

25I accept Mr. Benczkowski’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe.

OFFICIAL PLAN

26Mr. Benczkowski 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 expectations for development in Neighbourhoods.

27Of the criteria set out in OP Policy 4.1.5, I consider criteria c), e) and f) to warrant further discussion in relation to the variances requested for building height, front yard setback, lot coverage, and exterior main wall height:

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

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

f) prevailing setbacks of the buildings from the street or streets.

28On the basis of the record of previous approvals for building height, front yard setbacks, main wall height, and lot coverage submitted by Mr. Benczkowski and the photographic evidence provided, I am satisfied that the proposed massing and density of the proposal and the front yard setback will respect and reinforce the prevailing physical character of both the Immediate Context and the broader geographic neighbourhood.

29I find that the proposal maintains the general intent and purpose of the Official Plan.

ZONING BY-LAW

30Mr. Benczkowski’s evidence was that the general intent and purpose of zoning by-laws are to ensure compatible built form within the area as well as to ensure that new development does not cause unacceptable undue adverse impacts on the existing neighbourhood.

31The side main wall height variance requested is a modest increase of 0.46m (1.51 ft.) to the maximum permitted main wall height provision in the Zoning By-law.

32This variance has also been further reduced through the settlement reached by the Parties and the Applicant is now proposing a proposed height of 7.96 m whereas the previous application requested 8.23 m.

33The proposed side main wall height creates an appropriate height relative to the overall height and limits the dwelling to two storeys.

34The general intent and purpose of the front yard setback provision is to create a consistent street wall.

35The Zoning By-law requires the main wall of the proposed dwelling to be built in line with the lot lines of adjacent properties.

36However, the street pattern associated with Otter Crescent is unique in that it also runs in both a north-south and east-west direction.

37The subject property is also situated on the portion of Otter Crescent where the street wall is fragmented due to the curvature of the street. Any redevelopment of the property, therefore, will result in the visual appearance of the proposed dwelling being located closer to the street from the abutting dwelling to the south and further, from the house to the north.

38The request for a reduction in the front yard setback relates to a relatively small triangular section of the southwest corner of the proposed new dwelling.

39The general intent and purpose of lot coverage is to ensure that the building envelope does not cover too much of the site, allowing sufficient amenity space for outdoor uses.

40The building envelope includes the three-dimensional space defined by the maximum building length, maximum building depth, maximum height, and by the various setback requirements prescribed in the Zoning By-law. The proposed dwelling is zoning compliant for side yard setbacks, building length and depth, and rear yard setbacks.

41The subject property can accommodate the increase in lot coverage proposed while still accommodating sufficient exterior amenity space.

42The general intent and purpose of the wall height provision is to create a consistent built form as it relates to height. Variance No. 4 proposes an increase in height of approximately 2m; the requirement relates only to the former North York By-law.

43I am satisfied that the requested variances meet the general intent and purpose of the Zoning By-law and will result in a compatible built form that is already represented on Otter Crescent as well as in the broader neighbourhood context.

MINOR AND DESIRABLE FOR THE DEVELOPMENT PF THE LAND

44I find that there are no undue adverse impacts of a planning nature arising from the replacement dwelling proposed. On the basis of the above findings, I find also that the proposal is desirable and appropriate for the development of the land.

45The Application will not only provide a replacement dwelling that addresses the curvilinear streetscape of Otter Crescent with a visible front entrance but also will result in a functional family home and a development that is compatible with the surrounding area.

CONCLUSION

46This is an Appeal that has been settled between the Parties. I find that the revised proposal is not contrary to the Planning Act and is within the range of reasonable outcomes.

47Therefore, I find that the requested variances, individually and cumulatively, satisfy the tests of s. 45(1).

48Pursuant to s. 45(18.1) of the Act, on an appeal, the TLAB may make a decision on an application that has been revised 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 exceptions in s. 45(18.1.1).

49The TLAB is not required to give notice if, in its opinion, the revisions to the original application are minor. The TLAB finds that the modifications to the revised Application are minor and an improvement and, therefore, no further notice is required.

DECISION AND ORDER

50The Appeal is allowed in part. The variances listed in Appendix A are authorized subject to the conditions contained therein.

D. Lombardi

Panel Member

APPENDIX A

REQUESTED VARIANCES

1. Chapter 10.20.40.10.(2), By-law No. 569-2013

Maximum Height of Specified Pairs of Main Walls

The permitted maximum height of all side yard exterior main walls facing a side lot line is 7.5m.

The proposed height of the north and south side exterior main walls facing a side lot line is 7.96m.

2. Chapter 10.20.40.70.(1), By-law No. 569-2013

Minimum Front Yard Setback

The required minimum front yard setback is 5.36m.

The proposed front yard setback is 4.13m.

3. Chapter 10.20.30.40.(1), By-law No. 569-2013

Maximum Lot Coverage

The permitted maximum lot coverage is (35) percent of the lot area (116.27m2).

The proposed lot coverage is (37.3) percent of the lot area (123.75m2).

4. Section 14-B(8), By-law No. 7625

Maximum Building Height

The maximum permitted building height is 8m.

The proposed building height is 10.08m.

CONDITIONS OF APPROVAL

1. The proposed development shall be constructed substantially in accordance with the site plan and elevation drawings prepared by Minimal Design Studios - A0-1 (Site Plan), A2-1 Front (West) Elevation, A2-2 Rear (East) Elevation, A2-3 Side (North) Elevation, A2-4 Side (South) Elevation, dated February 15, 2023 and labelled as ‘TLAB REVISION – 5B, attached as ATTACHMENT 1, including but not limited to the height of the front and rear main walls, the peak elevations of the front and rear bay windows, the architectural articulation on the south elevation, and the depth of the front porch. Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.

2. The submission of 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.

ATTACHMENT 1