Leicher (Re), 2023 ONTLAB 76

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date: 2023-04-26 File: 22 229128 S45 19 TLAB Citation: Leicher (Re), 2023 ONTLAB 76

DECISION AND ORDER

Issuance Date: April 26, 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): STEFAN NEPOMUK LEICHER

Applicant(s): FELIX LEICHER

Property Address: 22 DUART PARK RD.

COA File No.: 22 162992 STE 19 MV (A0700/22TEY)

TLAB Case File No.: 22 229128 S45 19 TLAB

Hearing Date(s): 2023-03-09

Decision Delivered By: TLAB Chair LOMBARDI

Registered Parties:

Applicant: F. Leicher

Appellant/Owner: S. N. Leicher

Appellant’s Legal Rep.: M. Kemerer

Expert Witness: F. Romano

Expert Witness: R. Mollet

INTRODUCTION AND CONTEXT

1This is an Appeal by Stefan Leicher, Applicant/Appellant (Applicant), of the Toronto and East York Panel of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for variances for the property known as 22 Duart Park Road (subject property).

2The purpose of the application is to permit the alteration of the existing one-storey dwelling by constructing a complete second and third storey addition, front and rear balconies on the second and third floor, and a rear deck (Application).

3The subject property is located on Duart Park Road, which is a short, dead-end street with only nine (9) properties fronting each side of the street. It is situated one block north of Queen Street East, generally mid-way between Woodbine Avenue and Victoria Park Avenue, in the Beaches neighbourhood of the former City of Toronto.

4It is designated ‘Neighbourhoods’ in the City Official Plan (OP) and zoned RD(d0.5)(x961) under Zoning By-law 569-2013.

5REQUESTED VARIANCES TO THE ZONING BY-LAW

1. Chapter 10.20.40.10.(1), By-law 569-2013 The maximum permitted building height is 10 m. The altered dwelling will have a height of 10.33 m.

2. Chapter 10.20.40.40.(1), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (78.5 m²). The altered dwelling will have a floor space index equal to 1.019 times the area of the lot (228.4 m2).

3. Chapter 10.20.40.70.(3)(C), By-law 569-2013 The minimum required side yard setback is 1.2 m. The altered dwelling will be located 0.6 m from the side (west) lot line.

4. Chapter 10.5.40.50.(2), By-law 569-2013 The minimum required setback for a platform without main walls, attached to or less than 0.3 m from a building is 1.2 m (side yard setback) and 0.68 m (front yard setback). The front second floor balcony will be located 0.8 m from the side (west) lot line. The front third floor balcony will be located 0.9 m from the side (west) lot line.

5. Chapter 10.20.40.50.(1)(A), By-law 569-2013 The maximum permitted number of platforms at or above the second storey located on the front or rear wall of a detached house is 1. In this case, the number of platforms located on the front wall will be 2.

6. Chapter 10.20.40.50.(1)(B) By-law 569-2013 The maximum permitted area of each platform located at or above the second storey of a dwelling is 4 m². The area of the third storey front platform will be 11.04 m². The area of the front second storey platform will be 6.96 m².

7. Chapter 10.5.40.60.(1)(A), 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 front yard setback 0.34 m if it is no closer to a side lot line than the required side yard setback (1.2 m). The front platform will encroach 0.68 m into the required front yard setback, and will be located 0.8 m from the side (west) lot line.

8. Chapter 10.5.50.10.(1), By-law 569-2013 A minimum of 75% (2.69 m²) of the front yard is required to be landscaping. In this case, 63% (2.26 m²) of the front yard will be maintained as landscaping.

6Mr. Leicher appealed the decision of the COA, and the Toronto Local Appeal Body (TLAB) set a Hearing date for March 9, 2023.

Prologue

7Prior to the commencement of the Hearing, I was required to deal with two ‘housekeeping’ matters.

8The first related to a late filing by Mr. Robert Mollet, an abutting neighbour to the Applicant, who filed a Notice of Intention to be a Participant (Form 4) on February 24, 2023. The due date for filing Form 4 set by the TLAB in the Notice of Hearing was December 30, 2022.

9Mr. Mollet sought relief from Rule 13.2 of the TLAB’s Rules of Practice and Procedure (Rules) to permit him to elect Participant status and provide evidence before the Tribunal in this matter.

10The TLAB’s Rules and its Guiding Principles advance a set of core standards, which recognize that:

• The TLAB acknowledges that it is in service to all persons with an interest in an appeal before the Tribunal and that those persons are obligated to respect the processes available to them to engage in the disposition of an appeal;
• The TLAB’s Rules establish fixed Hearing dates and exchange obligations that are set out in advance for all stakeholders and that appeals are to be disposed of in an efficient, timely, cost-effective, open and fair process;
• The TLAB requires full disclosure of positions and evidence from all persons and early disclosure of positions, interests, evidence and issues is fundamental to a fair hearing process to avoid ‘trial by ambush.’

11Rule 13 of the TLAB’s Rules outlines the role and responsibilities of electing Participant status. Rule 13.2 specifically requires a person who wishes to be a Participant to file Form 4 no later than thirty (30) days after the Notice of Hearing is served and to comply with the rules relating to Participants.

12Unlike a Party, the TLAB’s Rules relating to Participants limit the role of a Participant to being a witness provided they comply with the requirements of Rule 16 (Disclosure), being cross-examined by Parties, asking clarifying questions of witnesses with the approval of the presiding Panel Member, and making an oral statement to the TLAB.

13The only document that Mr. Mollet filed was his Notice of Intention to be a Participant, which was submitted two (2) months past the required due date of December 30th.

14Additionally, his Form 4 provided no evidence upon which he intended to rely or produce during the Hearing.

15Finally, Mr. Mollet failed to adhere to Rule 16 which requires that Participants serve a copy of a Participant Witness Statement on all Parties and file the same with the TLAB, as required by the Notice of Hearing.

16This was problematic and a basis for refusing Mr. Mollet’s request to be permitted to elect status in the matter and provide evidence.

17However, Rule 16.2 does include an exception to the requirement for filing documents:

• 16.2 a) – any Document previously Filed with eth Committee of Adjustment.

18Therefore, although Mr. Mollet’s request to elect Participant status was in my opinion submitted considerably late, he is nevertheless an immediate neighbour and I consider his testimony relevant to my overall understanding of the issues in dispute in this case.

19As a result, I did allow him to elect Participant status but cautioned that the value of his testimony would go to weight.

20In addition, I advised Mr. Mollet that the Appellant’s legal representative would be afforded every opportunity to challenge his testimony and evidence through cross-examination and that I would monitor that evidence as permitted by the TLAB’s Rules.

21The second matter related to the late filing with the TLAB by Dr. Jones on February 3, 2023, of a statement and petition from Ms. Natalie Huston.

22Ms. Huston is also an adjacent neighbour to the Applicant. The document consists of a petition, signed by a total of twenty (20) residents who live on Duart Park Road with an introductory statement from Ms. Huston.

23Although Ms. Huston did not attend before the COA regarding the application, Dr. Jones did.

24Her statement and the petition were also submitted past the filing due date and marked ‘Late’ by TLAB staff.

25Neither Dr. Jones nor Ms. Huston elected Party or Participant status in the appeal matter before the TLAB. Dr. Jones wished to make a statement to the Tribunal regarding the Application.

26In making a ruling in this regard, I took the same position I did with Mr. Mollet’s filing; I ruled that the TLAB considers Dr. Jone’s testimony relevant to the issues before the Tribunal and, therefore, her statement would be heard.

27However, regarding the petition itself, I ruled that while the document had been uploaded to the TLAB’s AIC website by TLAB staff as is the requisite protocol for documents that are filed past the due date, and I had seen it, I was not prepared to allow it to be entered into the record as evidence at the Hearing.

28I made this ruling for two reasons: first, the petition was not correctly submitted pursuant to the TLAB’s Rules regarding document disclosure. Second, and more importantly, it contains the names of residents who are not before the TLAB and whose testimony cannot be properly tested under oath through cross-examination by the Applicant’s solicitor.

THE LEGISLATIVE AND POLICY FRAMEWORK

29Provincial 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).

30Variance – 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

31A summary of evidence is presented here to provide some context for the following sections of this Decision. All of the evidence and testimony in this matter has been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered but, rather, that the recitation of it is not material to the threads of reasoning that will be outlined in the Issues and Analysis section below.

32I advised those present at the Hearing that I had attended the site and the surrounding neighbourhood and had familiarized myself with all the pre-filed materials, but it is the evidence to be heard that is of importance.

33I heard first from the Applicant’s expert planning witness, Franco Romano, and then from Mr. Mollet. Finally, Dr. Rose Jones, who submitted Ms. Huston’s letter and the petition, made a statement to the TLAB.

34I qualified Mr. Romano as an expert in the area of land use planning.

35In his Expert Witness Statement (Exhibit 2), Mr. Romano provided an overview of the proposal and some context.

The Proposal

36The subject property currently contains a bungalow (see Figure 1 below) with a detached garage at the rear of the property. The detached garage is to be demolished.

Figure 1 – Existing Home at 22 Duart Pk. Rd.

37The proposed redevelopment of the subject property proposes a 3-storey (read as 2.5 storeys), detached home with an integral garage. The home will maintain the front and side yard setbacks of the existing home and will be erected on top of the existing foundation walls to minimize the impact of construction on neighbours (see Figure 2 below).

Figure 2 – Front Elevation of Proposed Dwelling at 22 Duart Pk. Rd.

38In an effort to reduce the lot coverage and increase green space in the rear and side yards, the proposed design includes the demolition of the existing garage in the backyard and an integral garage using the existing curb cut for vehicle access.

39Specifically, the proposal includes:

• construction of second and third storey building additions to the existing dwelling.
• The ground floor will be altered to remove the enclosed verandah, and street-facing front door and windows will be provided.
• The proposed overall building length is 15.65 m although that length shortens to 12.9 m at the 2nd floor and to 10.48 m at the 3rd floor.
• The proposed dwelling will have a floor space index (FSI) of 1.019 times the area of the lot (228.4 m²) and a lot coverage of 45%. The massing of the proposed dwelling decreases from the first to the third storey, with the latter representing approximately 37% of the dwelling footprint.
• The third storey is built into the roofline, which will consist of sloping features and one (1) west-facing dormer.
• The proposed building height is 10.33 m to the top-most ridgeline portion of the roof.
• The existing and proposed front yard landscaping is comparable to what exists in the area although the Applicant requires a variance of 0.43 m² (4.6 ft²). Additional soft landscaping is proposed in the rear yard where the existing detached garage will be demolished.

40The Applicant applied to the COA on June 16, 2022. The Committee received no concerns from City staff. Urban Forestry, in a Memorandum dated October 11, 2022, did recommend one (1) condition of approval relating to standard private tree permit application submission requirements if the COA granted the variances requested.

41Through correspondence, neighbouring residents did raise concerns regarding the proposal, including the redesign of the existing dwelling and the incorporation of an integral garage, the number of variances sought, and the potential impacts of the redevelopment on the existing front yard tree.

42The COA refused the application on October 26, 2022, and the Applicant appealed the decision to the TLAB.

43In reviewing the Application before the TLAB, Mr. Romano identified a Neighbourhood Study Area (NSA) in accordance with the direction of the Official Plan (OP).

44He delineated the geographic neighbourhood in a manner that provides a reasonable assessment unit that is consistent with Official Plan policy 4.1.5 considerations related to zoning, dwelling type and scale, lot fabric, and street pattern, with the following characteristics:

• The broader context consists of a total of 468 properties and the existing physical character is represented by an assortment of numeric site standards, many of which are at variance with the zoning by-law standards.
• The existing and planned context reflects a diversity of low-rise detached dwelling development which permits an assortment of lot sizes and built-form height, mass, scale, density, and setbacks.
• The physical form of development represents a mature, stable and healthy, inner-city neighbourhood in which residential development reflects the era of construction.
• The area is experiencing new, more recent development that includes residential redevelopment upon existing and new lots.
• The subject property is located in an area where there is a mix of physical character represented by older dwellings, including first-generation homes and more recent, modern construction.
• It is commonplace to find properties with similar or different physical characteristics, qualitatively and/or quantitatively, adjacent to, abutting or distant from one another.

45Mr. Romano also identified and undertook a detailed analysis of an Immediate Context including nineteen (19) properties with the following physical character:

• 79% of properties have a lot coverage greater than 50%.
• 89% of the properties have a side yard setback smaller than 1.2 m.
• 79% of properties include dwellings with building heights of two to three storeys containing a mix of conventional rea-related second storeys with roofs above, dormers, and a third floor at the upper level or within the roofline.
• 100% of properties have building lengths that extend beyond the middle of the lot.
• The FSI is not uniform, ranging from 0.21 to 1.23 x, with 89.4% exceeding 0.35 times the area of the lot and 36% exceeding 0.79%.

46Mr. Romano highlighted a Decision Summary Table of recent COA decisions (10-15 year timeframe) for properties within 500 m of the subject property, which is found in Exhibit 2.

47He concluded that as illustrated by that data, along with the visual evidence including photos and aerial mapping, more recent development in the neighbourhood tends to occupy different, and more, space on lots than the development that is being replaced or improved upon.

48This, he asserted, is indicative of a neighbourhood where the form of development from one era of construction differs from that which precedes, or follows, from another era but, which nevertheless has maintained the neighbourhood’s stable residential character.

49Duart Park Road consists of mainly 2-storey homes with four (4) being bungalows (#22 being one). Several homes on the street have been upgraded with renovations and/or additions over the last few years, with three (3) homes having been demolished and replaced by new-builds, including No. 18 (Mr. Mollet’s home, Figure 4, below).

Figure 4 - #18 Duart Park Road.

50I accept Mr. Romano’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

51Mr. Romano provided an analysis of the applicable Official Plan policy which informed his assessment that the proposal achieves a physical form of development that is sensitive, gradual and fits the existing physical character.

52OP Policy 4.1.5 contains within it development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.

53Of the criteria set out in OP Policy 4.1.5, I consider criteria c), and g) to warrant further discussion in relation to the variances requested for building height, density, setbacks, number of platforms, and front yard landscaping.

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

g) prevailing patterns of rear and side yard setbacks and landscaped open space.

54In addressing criterion c), Mr. Romano’s evidence was that the general intent and purpose of the development criteria for height, massing, scale, density and dwelling type is to maintain a low-rise, low scale, detached dwelling compatible with the density that exists within the surrounding area.

55He asserted that dwellings within the neighbourhood are one to three storeys and occupy the front to beyond the central portion of properties; there is a mixed physical character.

56Dwellings are represented by level and split-level floors with roof styles which are prominent, shallow to flat and punctuated by other notable architectural styles. Regardless of the era of construction, enclosed garages contribute to the prevailing character.

57He opined that the proposal appropriately implements this criterion in relation to Section 45(1) of the Planning Act and will result in a low-rise dwelling with an FSI that is compatible with the density that exists, particularly with respect to FSI deployment on the subject property.

58In addressing criterion g), Mr. Romano submitted that the prevailing patterns of rear yard setbacks in the surrounding area are small to modest, containing landscaped and hard surfaces, open space or structures. Rear yard setbacks that are not zoning-compliant reflect a prevailing pattern.

59Although, numerically, the patterns of side yard setbacks reflect tight to modest dimensions, this also includes a prevailing setback that is smaller than the zoning by-law base standard.

60He asserted that the proposed building additions and side yard setbacks reflect the prevailing pattern and will contribute appropriately to the existing side yard setbacks in the neighbourhood.

61On the basis of Mr. Romano’s evidence above, I am satisfied that the proposal represents a compatible physical character, is in keeping with and respects and reinforces the overall character of the neighbourhood.

62I find that the proposal maintains the general intent and purpose of eth Official Plan.

ZONING BY-LAW

63Mr. Romano’s evidence was that the general intent and purpose of the zoning by-law is to achieve development that is organized and located to be compatible, orderly and context suitable. He addressed each variance individually.

Building Height

64In addressing this variance, he submitted that the variance is no longer necessary because an Ontario Land Tribunal (OLT) Order issued in November 2022, implements an Order issued by the OLT in October 2021 that permits a building height of 11.0 m.

65The variance that was identified by the earlier Zoning Examiner’s Notice in this matter provides for a proposed building height of 10.33 m, whereas a maximum of 10.0 m is (was) permitted.

66He noted that the zoning examination was conducted prior to the building height zoning provisions coming into force by the November 2022 OLT decision, which confirms that the proposed building height is compliant, being lower than the permitted 11.0 m height.

67Mr. Romano opined that the intent of the building height provision in the zoning by-law is maintained given that the building is low rise. He opined that the variance for a 0.33 m height in excess of what is permitted is comparable to and less than building heights approved by the COA in the area.

68He highlighted numerous examples in his COA Decision Table found in his Expert Witness Statement (Exhibit 2) with building height variances exceeding 10 m, with properties at 20 Southwood Dr. (11.71 m), 17 Hambly Ave. (11.0 m), and 185 Beech Ave. (11.0 m) being the tallest.

69Mr. Romano’s evidence also confirmed that homes on Duart Park Road are characterized by a variety of roof shapes and building heights, with building heights of 10.0 m at Nos. 18 (Mr. Mollet’s home) and 27.

70Additionally, he asserted that the proposed additions to the existing dwelling comply in terms of the resulting number of storeys but also minimize the building height through incorporating a sloped roof, low and complying wall heights, and a partial third storey built into the roofline.

Floor Space Index

71The variance requested is to permit an FSI of 1.019 (228.4m²) whereas a maximum FSI of 0.35 (78.5 m²) is permitted.

72Mr. Romano asserted that the proposed floor area is reasonably deployed on the subject property and that the resulting mass and scale of the dwelling will represent an appropriately sized house for the area, especially in the immediate context.

73He submitted that the organization and layout of the FSI deployment will be articulated to de-emphasize the massing of the dwelling and that the FSI includes the third storey which is built into the roofline.

74He opined that the FSI fits well with the prevailing density of the surrounding area and that the proposed, enclosed floor area of the dwelling is appropriate for the lot.

75It is comparable to other properties in the neighbourhood in proximity to the subject property approved by the COA, including twenty-nine (29) properties within a 500 m radius with an approved FSI greater than 1.0 x.

West Side Yard Setback

76Mr. Romano’s evidence was that the general intent of the side yard setback provision is to provide suitable space for access, maintenance, and spatial separation.

77The variance is to permit the existing 0.6 m side yard setback, whereas a minimum of 1.2 m is required.

78The proposed west side yard setback is an existing condition, and the building additions will maintain the existing side yard setback for a dwelling that is located within an urban area where side yard setbacks exist of comparable and smaller dimensions, including side yard setbacks smaller than 1.2 m.

Balcony Side Yard Setbacks

79The variance requested is to permit a 0.8 m west side yard setback for the second-floor balcony on the front elevation as well as a 0.9 m west side yard setback for the third floor, front balcony. The zoning by-law requires a minimum of 1.2 m.

80Mr. Romano asserted that the general intent and purpose of the side yard setback provisions for balconies is to ensure that the balcony provides suitable space for access, maintenance, and spatial separation.

81The proposed side yard setbacks provide for suitable space which also mitigates privacy impacts through the incorporation of privacy screening along balcony sides.

Number of Front Balconies and Platform Size

82The Applicant proposes two platforms at or above the second storey oriented at the front of the home. The zoning by-law provision permits a maximum of one and restricts the size of a platform to no more than 4 m², to minimize privacy and overlook.

83The proposal is for a 6.96 m² front second floor platform, and an 11.04 m² front, third floor platform.

84Mr. Romano’s evidence was that the two front balconies are oriented towards the street, are shallow in depth and screened along the sides, and attached to bedrooms and not intended for use for social gatherings.

Front Yard Landscaping

85The general intent and purpose of the front yard landscaping zoning by-law provisions is to ensure that there is suitable space to accommodate landscape plantings and facilitate on-site percolation for drainage.

86Mr. Romano asserted that the variance required equates to 0.43 m², which is minimal and indistinguishable from the required minimum amount of landscaping. Furthermore, the COA approved variances for reduced front yard soft landscaping at 151 Balsam Ave. and 32 Duart Park Road at 38.4% and 45%, respectively.

87Furthermore, the proposed landscaping maintains the existing streetscape pattern of compact front yard landscaped areas.

88He opined that the variances, individually and cumulatively, maintain the overall general intent and purpose of the zoning by-law. The dwelling will continue to maintain an appropriate organization and location of development on the subject property and the proposal is capable of co-existing in harmony with the diversity of dwellings and uses located within the surrounding neighbourhood context.

Minor and Desirable

89Mr. Romano’s evidence was that the proposal creates no unacceptable adverse impact and the order of magnitude of the variances requested is minor.

90In terms of privacy and shadow, he opined that the proposal accommodates setback and height components which are within reasonable and expected setback, length, depth, height, massing, and other planned context parameters.

91He asserted that the proposal contains an innovative site and building design and the built form will incorporate the subject property’s topography to minimize disturbances and mitigate adverse impacts.

92It represents an appropriate, sensitive form of gentle redevelopment that builds upon and maintains the existing physical character and is a desirable development of the land.

93Mr. Romano requested that the TLAB authorize the variances requested and impose the two conditions recommended by the Applicant.

Participant Michael Mollet

94Mr. Mollet read from an email which he submitted to the COA opposing the subject application dated October 24, 2022. He is an immediate neighbour to the subject property and stated that, if approved, the proposal would result in the construction of a “monolithic, monster home.”¹

95He noted that although he “is usually supportive of new development in our City, and in my neighbourhood…,”² and has “…no problem with architectural style…the G.F.A. proposed is close to three times larger than allowed by the By-law.”³

96In his opinion, the proposed dwelling should be lower and shorter to reduce its massing and scale.

97He also suggested that the proposed integral garage would require the removal of a mature tree which he noted was not indicated on the site plan drawings filed by the Applicant.

98On cross-examination by Mr. Kemerer, Mr. Mollet acknowledged that he was not concerned about the impacts on the tree in the ‘as-of-right’ building footprint of the proposed redevelopment of the subject property but hoped it could be saved.

99He also was not offended by the resulting streetscape from the proposed redevelopment but disagreed with Mr. Kemerer’s assertion that the proposal was similar in size to his recently constructed home on Duart Park Road.

Statement from Dr. Rose Jones

100Dr. Jones provided her oral statement to the TLAB. She advised that those residents who had signed the petition attached to Ms. Huston’s letter, of which she was one, had chosen Mr. Mollet to speak on their behalf before the Tribunal.

101She confirmed that she submitted a letter to the COA and attended the Committee hearing to oppose the proposal.

102She concurred with Mr. Mollet that the massing (FSI) of the proposed dwelling is too large and “overwhelming”⁴ for Duart Park Road, which she characterized as consisting primarily of 1 ½ and 2-storey homes; her opinion was that it would not be in keeping with the neighbourhood.

103Dr. Jones also suggested that both the multiple balconies and integral garage in the proposal are not typical of the character of the neighbourhood and are not a ‘fit’ for the area.

104In his cross-examination of Dr. Jones, Mr. Kemerer reminded the witness that the proposed FSI variance for the subject property is 1.019 x and asked whether she had opposed the FSI variance granted by the TLAB for 27 Duart Park Road, which allowed an FSI of 0.818 times the area of the lot.

105Dr. Jones acknowledged that as the abutting neighbour, she had agreed to the FSI variance for 27 Duart Pk. Rd. as part of a settlement achieved amongst the Parties in that matter.

ISSUES AND ANALYSIS

106A hearing before the TLAB is a hearing ‘de novo’ under s. 45(18) of the Planning Act, meaning that the entire application that was before the COA is to be considered anew.

107The burden rests squarely on the Applicant to prove its case and to satisfy the TLAB that the application meets the four tests mandated by s. 45(1) of the Planning Act.

108For variances to be approved, the TLAB must be satisfied that all four tests are met.

109The only professional planning assessment evidence heard on this appeal came from Mr. Romano, an accredited land use planner. His credentials were reviewed, he was qualified without objection to give expert opinion evidence within the discipline of land use planning, and his detailed Expert Witness Statement was admitted as Exhibit 2.

110I found his assessment to be reasonably thorough, balanced, objective and credible, and I accepted the generated opinion evidence on compliance with applicable policy and statutory tests in the Legislative Framework section, above.

111This is not to suggest that I disregarded the testimony from Mr. Mollet and Dr. Jones or that I have discounted their statements to the TLAB; I did not.

112I found both Mr. Mollet’s and Dr. Jones’ testimony cogent and helpful.

113Although Mr. Mollet violated the TLAB’s Rules by filing a late Notice of Intention to be a Participant, my ruling in his favour allowed him to elect Participant status given that I consider his testimony relevant to my overall understanding of the issues in this matter.

114I also provided Dr. Jones with an opportunity to provide a statement to the TLAB given that she is an immediate neighbour of the subject property and participated before the COA, albeit she failed to submit any documentation to the TLAB other than the petition which she filed late on Ms. Huston’s behalf.

115It is incumbent on and in the interest of the Tribunal to hear from those who wish to speak to a proposal that will impact their neighbourhood.

116Expert testimony at the TLAB is an expectation but not a necessity of the hearing process. Experts are subject to being qualified and must meet standards of education and experience.

117The fundamental purpose of recognizing and admitting the testimony of experts is to assist the Tribunal in its function of deliberating on the issue before it. In providing that assistance, the expert is required to be independent, hold the public interest as paramount, and be of assistance to the Tribunal as to matters within the area of competence and expertise expressed.

118The only professional expert evidence I heard was from Mr. Romano. I agree with Mr. Romano that the variance requested for building height (Variance No. 1) is technical in nature and, if granted, will be in keeping with what exists in the neighbourhood.

119I also agree that Variances Nos. 3, 4, 7, and 8 are numerically small and satisfy the four statutory tests in the Planning Act.

120However, the concerns I heard from Mr. Mollet and Dr. Jones relate specifically to the variances requested for FSI and the number and size of balconies/platforms Variances Nos. 2, 5 and 6). I address each below.

VARIANCE FOR FLOOR SPACE INDEX

121This neighbourhood is a historic part of Toronto; the Duart Pk. Rd. streetscape is compact and characterized by 1 to 2-storey older homes in a tight urban fabric, with dwellings being located in close proximity to the front lot line.

122I accept Mr. Romano’s characterization that the neighbourhood is undergoing rejuvenation and reconstruction and exhibits a mix of architectural styles.

The first test: Official Plan

123The preamble to OP Policy 4.1.5 sets the objective for development in Neighbourhoods, requiring that development must be sensitive, gradual, and “fit” the existing physical character. The policy requires that development in established neighbourhoods respect and reinforce the existing physical character and it identifies particular criteria for construction.

124Those criteria establish that “prevailing” means the most frequently occurring. Mr. Romano provided a table and map of properties in the neighbourhood at which variances similar to those being proposed have been granted by the COA as the basis for his evidence that the proposal respects and reinforces the character of the neighbourhood.

Density/Floor Space Index (FSI)

125The measure that is used to represent density in the Zoning-By-law is the floor space index (FSI). FSI is the ratio of the gross floor area in relation to the area of the lot.

126Understandably, the public generally focuses on the maximum FSI provision in the Zoning By-law. The test set by OP Policy 4.1.5, however, is not the FSI maximum number set in the By-law, but the prevailing density in the broader and immediate neighbourhood as described in that OP Policy. The maximum FSI number in the Zoning By-law serves as the threshold beyond which the requirement for a variance is triggered.

127Policy 4.1.5 restricts the determination of ‘material consistency’ with the prevailing physical character to those physical characteristics listed in the policy, one of which is density.

128That Policy also provides that development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood not be precluded, provided that the physical characteristics of the proposed development are materially consistent and already have a significant presence on properties located in the immediate context.

129Mr. Romano asserted that the proposed FSI of 1.019 x (or 228 m²) is accommodated within three storeys, as follows (Figure 3, below):

• First storey – 98.29 m².
• Second storey – 90.42 m².
• Third storey – 36.69 m² (this accounts for the habitable space in the roofline).

Figure 3 – A View of the Proposed Storeys from the West Elevation of 22 Duart Pk. Rd.

130His analysis of the ten-to-fifteen-year timeframe for the dataset for COA decisions within the broader context determined that recently approved FSI variances range from 0.39 to 1.03 times the area of the lot, with 35% having an approved FSI of 0.8 or greater.

131In terms of gross floor area divided by lot area, the prevailing densities are spread out, but approximately 50% of the properties exceed 0.69 times the area of the lot.

132There are sufficient examples in the evidence of Mr. Romano for me to be satisfied that properties with an FSI/density similar to, and in some cases greater than what the Applicant is proposing, exist in substantial numbers within the geographic neighbourhood and there is already a significant presence of such properties in the immediate context and the adjacent block.

133Mr. Mollet submitted that, as a long-time resident of the neighbourhood, and an adjacent neighbour of the Applicant on Duart Park Road, he has a good feel for the neighbourhood and in his opinion, the proposal represents “overdevelopment of the property,”⁵ is not a good ‘fit’ for the neighbourhood and should not be approved.

134He provided no evidence in this regard, other than his perceptions and appreciation for the street and surrounding area.

135While it is not impossible to convey the ‘feel’ of a neighbourhood, it is another matter to challenge the exercise of a statutory right to apply for variances based on apprehensions or appreciations, even those that are strongly held, if that challenge is based solely on generalizations or perceptions.

136It is true that change, under the City’s Neighbourhoods policies and explanatory notes, is to be ‘sensitive, gradual and generally ‘fit’ the physical patterns of the neighbourhood, as so correctly put by Mr. Romano.

137But to resist legitimate project aspirations or development, where relief is required, requires that those sensitivity measures be demonstrated to be exceeded. One new house, even a ‘large’ house that reflects the attributes of other houses, is new and a change, but it is not necessarily foreign, strange or to be feared.

138The policy of the Official Plan contemplates renewal in the City’s neighbourhoods. Replacement dwellings, or as in this proposal an existing dwelling that is added to, are not in themselves ‘insensitive’ or not ‘gradual’. ‘Fit’, it has been said many times by this and other tribunals, does not mean sameness or identical attributes, in scale density, or design.

139A property owner is free, within bounds, to choose design expressions that may, to some, appear disrespectful to one or more sensibilities. The proposed additions to the existing dwelling will result in a home that is somewhat larger and more modern than that which currently exists.

140Where exceedances to the by-law occur, they need to be examined and challenged in context, individually and collectively, against not just societal trends for larger and better, but on legitimate and genuine measures of impact, public policy and magnitude.

141In this case, the justification accomplished by Mr. Romano, albeit challenged to some degree by Mr. Mollet and Dr. Jones, was credible and compelling. For the reasons above, I find that the height, massing, scale, density and dwelling type of the proposal respect and reinforce the physical character of the neighbourhood.

142For the same reasons, I find that the FSI variance maintains the general intent and purpose of the Zoning By-law.

The Third Test: Minor

143The test for ‘minor’ focuses on the scale and nature of perceived impacts caused by the variances. The courts have established that the test is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.

144Mr. Romano opined that the proposal, and particularly the variance for FSI, will create no unacceptable adverse impacts. He asserted, and I agree, that the proposal has been designed to fit compatibly within the prevailing physical character of the area and will minimize site disturbances and integrate well with the site topography.

145I also find that in terms of any potential impacts of privacy and shadow, there will be no unacceptable adverse impacts generated by the proposal. The proposal accommodates setbacks and height components that are within reasonable and expected building setback, length, depth, height, massing and other planned context parameters.

146With respect to the front yard tree, both Mr. Mollet and Dr. Jones asserted that the Applicant’s proposal of an integral garage will require the widening of the original driveway which, in turn, will impact front yard landscaping and require the removal of a large, healthy tree.

147The proposal will be developed within the permitted ‘building footprint’ which will accommodate suitable space and generate no adverse impacts in this regard. Urban Forestry staff expressed no concerns, and the Applicant has recommended a standard condition for the owner of the subject property to obtain a permit to injure or remove a tree.

VARIANCES FOR THE NUMBER AND SIZE OF PLATFORMS

148The other significant issue raised by the neighbours was the proposed number and size of platforms (Variance Nos. 5 and 6).

149Mr. Romano provided numerous examples within both the broader and immediate contexts of homes with more than one front balcony at or above the second storey.

150The general intent and purpose of the zoning by-law provision in this regard is to maintain privacy. I agree with Romano that the proposed balconies are oriented towards the street, are shallow in depth and screened; therefore, I find that the general intent and purpose of the By-law is maintained.

151The Applicant is also seeking a variance to permit a front second-floor platform of 6.96 m² in size and a front third-floor platform of 11.04 m² in size.

152The maximum permitted area of a platform is 4 m². Although I find the size of the second-storey platform/balcony is a minimal increase to the By-law standard, the size of the third-floor platform is in my mind more of an issue. With an area of 11.04 m², the proposed platform is 7.04 m² (75 ft.²) larger than permitted.

153However, I note that both platforms are front-facing, shallow in depth and screened along the sides. They are also externally attached to and off of bedrooms and are not customarily entertainment areas where social gatherings associated with decks occur. In this regard, I agree with Mr. Romano that even at 11.04 m², the size of the third-floor platform will not result in impacts to privacy and overlook.

154Therefore, given that platform number and size zoning standards are intended to ensure that platforms are a suitable size and are maintained as an accessory feature that minimizes privacy, overlook and nuisance impacts, I find that these variances meet the general intent and purpose of the zoning by-law.

CONCLUSION

155In the circumstances, I find as Mr. Romano asserted in his uncontroverted and credible evidence that the variances pass the mandatory policy and statutory tests above enumerated.

156I find on the evidence that the applicable tests have been addressed on each variance requested and satisfactorily met. I agree in this instance that the increase in FSI is not coupled with any other variance affecting built form, dwelling length and depth, or height, and will maintain and reinforce the physical character of the street.

157I agree that the built form of the altered dwelling and the development standards applied to the proposed additions are appropriate and consistent with the evolving character of the neighbourhood.

158I find that the FSI increase proposed by the Applicant is in keeping with the area’s built form which is characteristic of both new and existing dwellings within the broader and immediate neighbourhood contexts.

159As a result, I am satisfied that the variances requested are modest, reasonable, minor and desirable.

160I accept Mr. Romano’s opinion that the proposal is not an overdevelopment of the subject property and I find that the variances to accommodate the proposal, including for FSI, setbacks, number and size of front platforms, and front yard landscaping, do not constitute a change that threatens the stability of the neighbourhood, a key focus of the OP policies for Neighbourhoods.

161Notwithstanding that the absolute FSI proposed is an increase, I find that it is appropriately distributed through the proposed additions to the dwelling and presents no policy, zoning or impact incidence inconsistent with the principles of ‘good planning’.

162On this basis, I find that the variances, individually and cumulatively, meet the four tests of s. 45(1) of the Planning Act, maintain the general intent and purpose of the OP and Zoning By-law and are appropriate for the development of the subject property.

163I agree that the proposal is minor, in both quantitative and qualitative terms and that it will respect the character and built form of the surrounding neighbourhood.

164It will appropriately frame the streetscape and will not give rise to any undue adverse impacts of a planning nature on adjacent properties with respect to shadowing, privacy or overlook. The variances are reflective of the existing development in the neighbourhood.

DECISION AND ORDER

165The appeal is allowed, and the decision of the Committee of Adjustment dated October 26, 2022, is set aside.

166The following variances as set out in Attachment A, below, are approved subject to the conditions set out herein, and the Site Plan drawings set out in Attachment B.

D. Lombardi

Chair

ATTACHMENT A

REQUESTED VARIANCES TO THE ZONING BY-LAW

1. Chapter 10.20.40.10.(1), By-law 569-2013 The maximum permitted building height is 10 m. The altered dwelling will have a height of 10.33 m.

2. Chapter 10.20.40.40.(1), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (78.5 m²). The altered dwelling will have a floor space index equal to 1.019 times the area of the lot (228.4 m2).

3. Chapter 10.20.40.70.(3)(C), By-law 569-2013 The minimum required side yard setback is 1.2 m. The altered dwelling will be located 0.6 m from the side (west) lot line.

4. Chapter 10.5.40.50.(2), By-law 569-2013 The minimum required setback for a platform without main walls, attached to or less than 0.3 m from a building is 1.2 m (side yard setback) and 0.68 m (front yard setback). The front second floor balcony will be located 0.8 m from the side (west) lot line. The front third floor balcony will be located 0.9 m from the side (west) lot line.

5. Chapter 10.20.40.50.(1)(A), By-law 569-2013 The maximum permitted number of platforms at or above the second storey located on the front or rear wall of a detached house is 1. In this case, the number of platforms located on the front wall will be 2.

6. Chapter 10.20.40.50.(1)(B) By-law 569-2013 The maximum permitted area of each platform located at or above the second storey of a dwelling is 4 m². The area of the third storey front platform will be 11.04 m². The area of the front second storey platform will be 6.96 m².

7. Chapter 10.5.40.60.(1)(A), 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 front yard setback 0.34 m if it is no closer to a side lot line than the required side yard setback (1.2 m). The front platform will encroach 0.68 m into the required front yard setback, and will be located 0.8 m from the side (west) lot line.

8. Chapter 10.5.50.10.(1), By-law 569-2013 A minimum of 75% (2.69 m²) of the front yard is required to be landscaping. In this case, 63% (2.26 m²) of the front yard will be maintained as landscaping.

CONDITIONS OF APPROVAL

1. The proposal shall be constructed substantially in accordance with the Site Plan drawings prepared by baukultur/ca. Inc. and dated March 9, 2023, including: drawings AS-001 (Architectural Site Plan); A-201 (Elevations South); A-202 (Elevations North); A-203 (Elevations West); and A-204 (Elevations East), attached as Attachment B to this decision. Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.

2. The owner shall submit a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

ATTACHMENT B

Footnotes

1. 1Mr. Mollet’s Testimony at the TLAB Hearing on March 9, 2023, regarding 22 Duart Pk. Rd.
2. 2Mr. Mollet’s October 24, 2022, Email to the Committee of Adjustment
3. 3Ibid.
4. 4Dr. Jone’s Testimony at the TLAB Hearing on March 9, 2023, regarding 22 Duart Pk. Rd.
5. 5Mr. Mollet’s Email to the Committee of Adjustment dated October 24, 2022.