Morozov (Re), 2023 ONTLAB 78

Toronto Local Appeal Body

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

Date: 2023-04-28

22 134415 S45 12 TLAB

Morozov (Re), 2023 ONTLAB 78

DECISION AND ORDER

Issuance Date: April 28, 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): Michael Morozov

Applicant(s): PMP DESIGN GROUP

Property Address: 218 Vesta Dr.

COA File No.: 21 248503 STE 12 MV (A0026/22TEY)

TLAB Case File No.: 22 134415 S45 12 TLAB

Hearing Date(s): Thursday, September 1, 2022

Decision Delivered By: TLAB Panel Member Wong

Registered Parties:

Applicant PMP DESIGN GROUP

Appellant M. Morozov

Appellant’s Legal Rep. M. Mazierski

Participant J. Otis

INTRODUCTION AND CONTEXT

1The Owner and Applicant of 128 Vesta Drive (the “Subject Property”) proposes to legalize and to maintain the rear, ground-floor, concrete platform deck and rear basement addition below it (the “proposal”), which were both constructed without the benefit of a building permit.

2The Subject Property is zoned "RD (f12.0; d0.65) (x1321)" under City of Toronto Zoning By-law 569-2013 (the “ZBL”). The Official Plan designation for the Subject Property is "Neighbourhoods".

3On December 14^th, 2021, the Applicant filed an application with the Committee of Adjustment (“Committee”) to legalize and maintain the proposal.

4For this, the Applicant sought three variances to Zoning By-Law 569-2013:

1. Chapter 10.5.40.50.(4)(C) - Maximum Permitted First-Storey Platform Projection/Height

In the Residential Zone category, the level of the floor of a platform, such as a deck or balcony, located at or below the first storey of a residential building other than an apartment building, may be no higher than 1.2 m above the ground at any point below the platform, except where the platform is attached to or within 0.3 m of a rear main wall[; and] any part of the platform floor located 2.5 m or less from the rear main wall may be no higher than the level of the floor from which it gains access.

The rear deck platform located at the first storey of the dwelling will extend 4.83 m from the rear main wall (including the staircase landing) and will be 1.79 m above the ground.

2. Chapter 10.20.40.20.(1) – Maximum Building Length

The maximum permitted building length for a detached dwelling is 17 m.

The altered dwelling will have a building length of 21.82 m.

3. Chapter 10.20.40.30.(1) – Maximum Building Depth

The maximum permitted depth of a detached dwelling is 19 m.

The altered dwelling will have a depth of 21.82 m.

5The Committee refused all three variances. On April 13, 2022, the Applicant appealed this decision to the Toronto Local Appeal Body (“TLAB”). A TLAB Hearing was scheduled for September 1, 2022.

6In its TLAB Disclosure of July 26, 2022, the Applicant increased the numerical value of the requested variance for a rear deck platform length, from 4.83 m in its Committee application and TLAB Notice of Appeal, to 6.10 m. Thus, the Applicant’s amended, first variance request is as follows:

1. Chapter 10.5.40.50.(4)(C) - Maximum Permitted First-Storey Platform Projection/Height

In the Residential Zone category, the level of the floor of a platform, such as a deck or balcony, located at or below the first storey of a residential building other than an apartment building, may be no higher than 1.2 m above the ground at any point below the platform, except where the platform is attached to or within 0.3 m of a rear main wall, any part of the platform floor located 2.5 m or less from the rear main wall may be no higher than the level of the floor from which it gains access.

The rear deck platform located at the first storey of the dwelling will be 6.10 m from the rear main wall and will be 1.79 m above the ground.

7In its TLAB Disclosure of July 26, 2022, the Applicant maintained the same variance requests for building length and depth:

2. Chapter 10.20.40.20.(1) – Maximum Building Length

The maximum permitted building length for a detached dwelling is 17 m.

The altered dwelling will have a building length of 21.82 m.

3. Chapter 10.20.40.30.(1) – Maximum Building Depth

The maximum permitted depth of a detached dwelling is 19 m.

The altered dwelling will have a depth of 21.82 m.

8However, in its TLAB Disclosure of July 26, 2022, the Applicant also added a fourth variance request which was not before the Committee, as follows:

4. Chapter 10.5.40.60(1)(C) – Side Yard Setback for an Encroaching Platform

A platform without main walls, attached to … a building, with a floor no higher than the first floor of the building above established grade may encroach into the required rear yard setback 4.95 metres, if it is no closer to a side lot line than 1.79 metres.¹

The proposed platform encroaches into the required rear yard setback 0.99 metres and is 1.22 metres from the (north) side lot line.²

THE LEGISLATIVE AND POLICY FRAMEWORK

Provincial Policy – Planning Act S. 3

9A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2020 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’).

Variance – Planning Act S. 45(1)

10In 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.

Planning Act S. 45 (18.1) - Amended application

11On an appeal, the Tribunal 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 the persons and public bodies who received notice of the original application under subsection (5) and to other persons and agencies prescribed under that subsection. 1993, c. 26, s. 56; 1994, c. 23, s. 26 (7); 2017, c. 23, Sched. 5, s. 80.

Exception

12(18.1.1) The Tribunal is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor. 2017, c. 23, Sched. 5, s. 98 (5).

MATTERS IN ISSUE

[13]

I. Are the Applicant’s amendments to its requested variances minor? If not, prior to TLAB authorization of the amended variances, according to Planning Act s. 45(18.1), written notice must be given to all the persons and public bodies who received notice of the original application.

II. Do the Applicant’s four requested variances meet the Planning Act requirements?

a. Are they consistent with the Provincial Policy Statement and conform to the Growth Plan?

b. Do the variances, individually and cumulatively, satisfy the four tests of the Planning Act s. 45(1), on a balance of probabilities?

ANALYSIS, FINDINGS, AND REASONS

Issue I

14In its Disclosure dated July 26, 2022, the Applicant increased its variance for rear deck platform length from 4.83 m to 6.10 m and added a variance for the north side yard setback for an encroaching platform of 1.22 m (what is required is 1.79 m), where there was no variance requested prior.

15The Applicant’s legal representative, Mr. Michael Mazierski, emphasized that the change to the first variance, from 4.84 m in its Committee application to 6.10 m in the TLAB appeal, is due to the inclusion of the staircase landing on the deck, which is 1.27 m wide (= 6.10 m - 4.83 m). With the staircase landing, the deck extends 6.10m from the main wall. Mr. Mazierski did not, however, give a full explanation as to why the larger value was not submitted to the Committee of Adjustments for authorization.

16In addition, Mr. Mazierski emphasized that the new fourth variance for side yard setback for an encroaching platform was added “out of an abundance of caution”, however, he did not explain why this variance was not originally submitted, in an abundance of caution, to the Committee of Adjustments for approval.

17These amendments to the variances do not minimize the scale of the proposal or reduce the potential impacts on neighbours. So, according to Planning Act Section 45 (18.1.1), new notice would be required before TLAB could authorize the variances. Thus, although I accepted evidence for the amended variances, all who were previously notified of the TLAB appeal would need to be notified of the amended variances and allowed an opportunity to elect participation at a subsequent TLAB hearing if these amended variances are to be authorized.

Issue II (a)

18I consider the four requested (amended) variances on their merits.

19Under Section 3(5)(a) of the Planning Act, a decision of the TLAB that affects a planning matter, including variance applications, is to be consistent with the Provincial Policy Statement 2020 (“PPS”). Further, “The PPS provides overall policy directions on matters of provincial interest related to land use and development in Ontario, and applies to the Growth Plan of the Greater Golden Horseshoe 2020 (“Growth Plan”), except where the Growth Plan or another provincial plan provides otherwise.”

20Although minor variance applications are matters of municipal jurisdiction and not at a scale that would fall within the parameters of the PPS and The Growth Plan for the Greater Golden Horseshoe, the general direction of the higher-level Provincial policies is to encourage intensification at appropriate locations that can take advantage of existing services and infrastructure.

21The Applicant’s planner, Mr. David Igelman, gave expert opinion evidence which I find exaggerates the proposal’s consistency with the PPS. For example, Mr. Igelman submitted that the proposed rear deck and basement addition would promote “efficient development and land use patterns which sustain the financial well-being of the province and municipalities over the long term” (Policy 1.1.1(a)). He also asserted that the proposal would “maintain the existing the (sic) range and mix of housing in the City and neighbourhood” (page 8, Witness Statement July 26, 2022). I do not agree that the proposed rear deck and basement addition, would have any impact on the financial well-being of the province and municipalities over the long term. Mr. Igelman also did not demonstrate how the proposed deck and basement addition would increase the supply of affordable housing or contribute to a mix of housing options as Policy 1.1.1(b) directs.

22Then Mr. Igelman asserted that the proposal would “increase the efficiency of the use of the Subject Property”. I do not agree that the proposed outdoor deck and basement storage would enable more efficient use of land within the Settlement Area, as directed by the PPS, as it does not increase the number of rooms and occupant density but focuses on outdoor equipment storage space.

23In addition, Mr. Igelman asserted that the proposal facilitates “gentle redevelopment and compact form while mitigating risks to public health and safety.” I do not see how the proposal facilitates “intensification, redevelopment and compact form” and as discussed more under the test for minor, below, I’m unconvinced that it includes measures to mitigate these public health and safety concerns.

24Although this proposal may respond to “trends in modern buildings needs, market demand, and building and construction conventions”, according to Policy 1.1.1(b) (page 8, Witness Statement July 26, 2022), I find that the planner’s assertions of the consistency with the PPS are over-stated.

Growth Plan

25Similarly, the Growth Plan directs development in Urban centres to “be vibrant and characterized by more compact settlement and development patterns” (Policy 1.2). I do not find that the proposal would result in a more efficient and compact development pattern.

Issue II (b) – Four-Part Test for Variance

1. Maintains the General Purpose and Intent of the City of Toronto's Official Plan?

26The variances must maintain the general purpose and intent of the Official Plan, in particular Policy 2.3.1 "Healthy Neighbourhoods”³ and Policy 4.1.5 "Development Criteria in Neighbourhoods".⁴

27Under Official Plan Policy 4.1.5, the development in established neighbourhoods must "respect and reinforce the existing physical character of each geographic neighbourhood, including in particular [as is applicable in this context]: … c) prevailing heights, massing, scale and dwelling type of nearby residential properties".

Prevailing heights, massing, scale, density, and dwelling type of nearby residential properties

28Based on zoning, prevailing dwelling type and scale, lot size and configuration, street pattern, pedestrian connectivity, and natural and human-made features, Mr. Igelman established a Geographic Neighbourhood ("Study Area") as directed by the Official Plan, representing the broader neighbourhood, that bounds:

• on the north, the rear lot lines of the properties on the north side of Dewbourne Avenue and Old Forest Hill Road,

• on the west, the rear lot lines of properties fronting on Richview Avenue,

• on the east, the side lot lines of properties flanking onto Spadina Road, and

• on the south, the rear lot lines of the properties on the south side of Burton Road north.

29Mr. Igelman provided data on the variance approvals for the Study Area with the usual caveat that it does not include legal non-conforming variances.

Variance 1 – Platform Projection and Height

30I find that the Applicant’s proposed platform distance from the main wall at the proposed height does not represent gentle redevelopment compatible with the immediate or broader neighbourhood. The proposed distance from the main wall of the platform projection, is 6.10 m, compared to the Study Area's mean and mode of 4.07 m and 3.66 m, respectively. Thus, the proposed deck would extend more than 2 meters beyond the mean, and over 2.44 meters more than the mode. Further, the Applicant's distance from the main wall (6.10 m) is greater than the largest approved variance for a platform projection in the Study Area (5.18 m).

31In addition, although the height of the proposed deck (1.79 m) is below the mode and median of the geographic neighbourhood (2.66 m and 1.97 m, respectively) and lower than the highest approved platform (7.24 m), these heights are not in combination with the distance from the main wall that the Applicant has proposed. Therefore, I find that the proposed platform's combined distance from the main wall and height achieves a very different scale than what has previously been approved in the Study Area.

Variance 2 – Building Length

32The proposed building length variance creates built-form massing that is greater than the prevailing character of the immediate and broader neighbourhoods. The proposed building length (21.82 m) is greater than both the mean, or average, (21.13 m) as well as the mode (most frequently occurring) building length (20.30 m) in the Study Area.

Variance 3 – Building Depth

33On its own, the building depth variance is more compatible than building length, with the existing neighbourhood context. The proposed building depth is less than the mean (22.91 m) though slightly greater than the mode (20.65 m). Mr. Igelman gave examples of recently approved building depths, including 7 Ava Crescent (21.46 m), 51 Ava Road (22.94 m), 18 Burton Road (28.51 m), and 106 Glenayr Road (23.16 m).

Variance 4 – Side Yard Setback for Encroaching Platforms

34The proposed encroachment on the side setback of 1.22 m is completely unprecedented in the immediate and broader neighbourhoods among variances granted during the period of data collection. The By-law states that a platform may encroach 4.95 m into the rear setback if the platform does not encroach into the side yard setback more than 1.79 m.⁵ In the Study Area, the data showed no approved platforms with side-yard setbacks. Mr. Igelman opined that there is no significant difference between the immediate and the adjacent or broader neighbourhood context with respect to lot size, and that the main characteristics of the lots are materially consistent. So, in a neighbourhood with consistent lot sizes and shapes, there are consistently no side yard setback variances (of less than 1.79 m), for a platform that encroaches into the rear yard setback, as the Applicant proposes (in this case, a side yard setback of 1.22 m).

35I find that although the building depth (Variance 3) is consistent with those of other dwellings in both the immediate and broader neighbourhood context, building length (Variance 2) is greater than what is generally seen in the Study Area. More significantly, the proposed platform’s distance from the main wall at that height (Variance 1) is almost twice in length than the mode. As well, the side-yard setback encroachment (Variance 4) would be unprecedented in the both the immediate and broader context. Combined, these variances do not respect and reinforce the existing physical character of the immediate and broader neighbourhood, do not ‘fit’ the area character, and do not meet the intent and purpose of the Official Plan.

2. Maintain the general intent and purpose of the Zoning By-law?

Variance 1 - Maximum Permitted First-Storey Platform Projection/Height

36I find that the requested variance for maximum permitted projection and height of a platform does not satisfy the intent and purpose of the Zoning By-law, which is to mitigate the potential overlook and privacy impacts associated with encroaching platforms. The proposed deck's landing extends well beyond its own 'privacy wall' and creates significant potential overlook and loss of privacy at 6.1 m from the rear main wall. Only 2.5 m of the deck projection from the main wall would be permitted according to the By-law, while the majority of the 6.10 m total deck projection length (i.e., 3.6m) requires a variance.

37The extension of the staircase landing and staircase beyond the privacy wall of the deck creates additional concern at this height and distance from the rear main wall, particularly as the deck acts as an entrance and exit to the main dwelling. Although the Applicant's planner emphasized that the staircase and landing would not facilitate congregation as the deck would, the staircase and landing can be areas of frequent traffic. I find that the staircase landing would have a significant impact on privacy at this height.

Variances 2 - Maximum Building Length

38I find that there is insufficient evidence that the requested variance for building length satisfies the intent and purpose of the By-law.

39The intent of the maximum building length provision in the Zoning By-law is to ensure that the building length is consistent among dwellings in the neighbourhood. The Applicant's planner also noted that the intention of maximum building length is to “regulate… the overall massing and built form of the dwelling." The By-law’s intent and purpose is to control, to some extent, the amount of excavation underground since, in most cases, a basement's Gross Floor Area (“GFA”) is not counted in a dwelling's overall Floor Space Index ("FSI"). The maximum building length provision thus controls underground building length, where side, rear and front yard setbacks do not apply.

40In this case, the requested building length variance accommodates the proposed rear ground floor deck and rear basement addition. Although the rear basement addition would not affect the building’s above-ground massing and FSI because it is below the established grade, the proposal’s impact on the building’s overall massing and GFA must be considered, as the intent of the By-law requires. Regardless of the fact that it is not accessible from inside the dwelling (as the Applicant’s planner emphasized), the planner did not sufficiently address how the proposed basement would contribute to the building’s overall massing, built form, and Gross Floor Area. The impact of the requested variance on the building's massing is even more important, as the bulk of the proposed addition would encroach into the side-yard setback. In supporting the building length variance, however, the Applicant's planner did not provide sufficient evidence on how it would impact the total GFA of the building, when added to the above-ground FSI.

Variance 3 - Maximum Building Depth

41As indicated above, the intent of the By-law provision for maximum building depth is to work with maximum building length to regulate not only a structure's impact above-ground, but also its impact below-ground where the side, front, and rear-yard setbacks to not apply. Despite being technically below grade (as the Applicant’s planner emphasized), the proposed additional building depth affects the building’s overall GFA and FSI and the massing experienced from the outside, where there is an entrance. In supporting the building depth, the Applicant's planner, however, did not provide evidence on how the proposal would affect the overall massing of the dwelling.

42In addition, the intent of the By-law's provision for maximum building depth is to work in conjunction with maximum building length to regulate, to some degree, the building's placement on the lot. The goal is to ensure that there is general alignment in the proposal's structure and rear walls with contiguous neighbouring properties. The general alignment between properties avoids overlook, privacy, and compatibility issues with neighbouring backyards.

43In this case, the proposed deck makes the placement of the property’s built form inconsistent with its immediate neighbours. Although the rear main wall of the existing dwelling is generally in line with the adjacent property to the north (33 Elderwood Drive) and south (216 Vesta Drive), as well as properties further south on Vesta Drive, the proposed basement and deck would create a building depth and length that are not in line with adjacent properties. On its north side, the subject’s property abuts a corner lot where the dwelling is oriented toward a different street. This creates planning considerations for ‘consistent’ dwelling placement on the Subject Property that the houses on Vesta to the south do not have. The proposal extends the built form farther back and forward than the ends of the building on the Subject Property’s northerly abutting property, 33 Elderwood Drive, where the Participant, Ms. Judith Otis, resides. Significantly, the proposal does not maintain consistent or compatible alignment with this property to the north.

44In addition to its alignment, the proposed deck’s design would have significant overlook and privacy impacts on the abutting neighbours. The proposed 'privacy wall' of the deck houses a TV screen and fireplace, and the proposed deck has a kitchen sink, cooking area, and ample space for a dining table and chairs which makes it function like a living space (Photo Study - Photos 8 and 12). As a full living space, the deck would create significant overlook and privacy impacts on the neighbours.

45I find that the depth variance for the proposed deck does not foster compatible alignment with neighbouring properties, particularly to the north. Additionally, I find that it would result in adverse undue overlook and privacy impacts by creating an outdoor living space with an alignment that seems to exacerbate overlook, privacy and compatibility issues, counter to the general intent and purpose of the By-law.

Variance 4 - Side yard setbacks for encroaching platforms

46The intent of the maximum permitted projection and side yard setback requirement of a platform is in large part, to ensure potential privacy impacts associated with the encroaching platforms are mitigated. The By-law states: "In a rear yard, a platform with a floor no higher than the first storey of the building above established grade may encroach into the required rear yard setback the lesser of 2.5 metres or 50% of the required rear yard setback, if it is no closer to a side lot line than the greater of:

(i) 0.3 metres; or

(ii) a distance equal to the vertical distance between the highest part of the floor of the platform and the average elevation of the ground at the side of the platform".

47I find that the requested variance does satisfy the general intent and purpose of the Zoning By-law. The proposed platform encroaches 0.99 m into the required rear yard setback and is 1.22 m from the (north) side lot line (side lot setback is less than the required 1.79 m). Although the Applicant's planner showed a series of aerial photos of properties within the immediate and adjacent context which appear to have non-compliant rear platforms such as: 24 Burton Drive, 106 Vesta Drive, 107 Vesta Drive, 111 Vesta Drive, 114 Vesta Drive, 116 Vesta Drive, 212 Vesta Drive, and 214 Vesta Drive, aerial photos are only useful in giving context. Due to the declination angle (which is unknown), panoramic distortion, and an inability to see through vegetation, aerial photos cannot be relied upon as hard evidence in determining neighbourhood property data for variance approvals.

48Moreover, the properties directly adjacent to the Subject Property are most important in assessing whether privacy impacts are mitigated. As previously discussed, Ms. Otis, the resident of the northern abutting property, 33 Elderwood Drive, indicated significant impacts on privacy and overlook to her property caused by the platform's location, including its encroachment into the side-yard setback, and height.

3. Desirable for the appropriate development of the land?

49The proposal does not improve the existing single detached dwelling in a manner that would fit in with the development pattern of the neighbourhood, due to the precedent it would set for constructing ground-floor decks which have roofs and 'privacy walls' that are full additions to the building and do not support neighbourhood privacy and overlook considerations.

50In addition, the Applicant is applying for authorization of variances after, not before, construction or “as-built,” which reduces the opportunity for the community to meaningfully engage in the planning process. It by-passes the opportunity for TLAB-mediation which is offered to all residents to reduce local conflict, strengthen neighbourhood relationships and community, and effect better city planning outcomes. By side-stepping the opportunity for meaningful engagement from other residents in the neighbourhood and City of Toronto interests, the Applicant is reducing the effectiveness of overall City planning.

4. Is the proposal minor in nature?

51The test for minor focuses on the scale and nature of perceived impacts caused by the variances. The courts have established that while the size and degree of the variances are relevant, the test is not one of no impact, but whether the variances’ imputed impact rises to the level of being an undue adverse impact of a planning nature.

52In this case, Ms. Otis, the directly abutting neighbour to the north, identified significant impacts with privacy, overlook, vapor, and fumes caused by the proposed (but currently existing) platform's extent and location. As discussed above, under the analysis for conformity with the Maximum Building Depth By-law, the proposed deck’s ‘privacy wall’ and deck, which encroaches into the side-yard setback at significant height and depth, overlapping with and extending past the abutting northerly neighbour’s dwelling, is shown to have a fireplace, TV-screen, sink, cooking area, and living space. Also as discussed, the Subject Property abuts a corner lot which is oriented toward another street. The configuration of lot orientations creates greater impact sensitivity related to overlook and privacy from the Subject Property.

53I find that there is not sufficient evidence to demonstrate that the proposed development satisfies the test for "minor".

CONCLUSION

54Since the amendments to the variances are not minor, Section 45(18.1.1) of the Planning Act requires notice to all people and public bodies who received notice of the original application if they are to be authorized.

55I find, however, that the Applicant’s four requested (amended) variances do not satisfy the requirements of the Planning Act tests, individually or cumulatively.

56Therefore, the amended variances are not authorized, and no new notice of a TLAB hearing on the amended variances is required.

DECISION AND ORDER

57The four variances are refused.

C. Wong

Panel Member

1. Neighbourhoods and Apartment Neighbourhoods “are considered to be physically stable areas”. Development within Neighbourhoods and Apartment Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes, and open space patterns in these areas. (Page 2-29)

“Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance. The determination of material consistency for the purposes of this policy will be limited to consideration of the physical characteristics listed in this policy.” (Pages 4-4 to 4-5).

Footnotes

1. 1Emphasis added.
2. 2Emphasis added.
3. 3“… [N]eighbourhoods will not stay frozen in time. The Neighbourhoods where we grew up and now raise our children help shape the adults and society we become. Some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites. A cornerstone policy is to ensure that new physical development in our neighbourhoods respects the existing physical character of the area, reinforcing the stability of the neighbourhood.” (Page 2-27)
4. 4“The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context). (Page 4-4).
5. 5Emphasis added.