Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-08-31
23 124750 S45 08 TLAB
Sanchez (Re), ONTLAB 130
DECISION AND ORDER
Issuance Date:
August 31, 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):
LUISA PINEROS SANCHEZ
Applicant(s):
LUISA PINEROS SANCHEZ
Property Address:
487 WHITMORE AVE
COA File No.:
22 243135 NNY 08 MV (A0004/23NY)
TLAB Case File No.:
23 124750 S45 08 TLAB
Hearing Date(s):
July 24, 2023
Decision Delivered By:
TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant/Applicant
L.S. Sanchez
Participant
D. Kourakos
D. Desroches
Participant
B. Kourakos
J. Kourakos
Participant
L.O. Kinares
Participant
G. Kourakos
INTRODUCTION AND CONTEXT
1This is an appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for variances for the property known as 487 Whitmore Ave (subject property).
2The purpose of the application is to obtain variances to construct a new three-storey dwelling with front porch and detached garage.
3The subject property is located in the Dufferin St and Eglinton Ave West area of Toronto.
4The Owners of the property appealed the decision of the COA, resulting in this Hearing before the TLAB. The adjacent neighbours, the Kourakoses, elected Participant status in this Hearing.
5The property is designated Neighbourhoods in the Official Plan and is zoned RM (f12.0; u2; d0.8) x252 under Zoning Bylaw 569-2013.
6VARIANCES REQUESTED
- Section 10.80.40.40.(1) Bylaw 569-2013 – Floor Space
The permitted maximum floor space index is 0.8 times the area of the lot.
The proposed floor space index is 0.90 times the area of the lot.
- 10.80.40.70.(3) Bylaw 569-2013 – Side Yard Setback
The required minimum side yard setback for a detached house is 1.2 metres. The proposed West side yard setback is 0.46 metres.
7Variances for maximum height of all side exterior main walls, maximum area of a platform at or above the second storey and setback for a platform without main walls had been requested from the COA but have been removed from this request before the TLAB. In addition, the requested variances for maximum floor space index (FSI) and minimum side yard setback have been reduced from that which were considered by the COA.
8I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation of the hearing of their evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
9Provincial 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 (Growth Plan) for the subject area.
10Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
SUMMARY OF EVIDENCE
SANCHEZ
11Ms. Sanchez explained her interest in development of the property and described the process of designing the proposal.
12Ms. Sanchez described the neighbourhood as follows:
It is a neighbourhood of one-storey, two-storey and three-storey detached and semi-detached homes, reflecting the “Residential Multiple” zoning.
The area is experiencing increasing redevelopment.
The majority of lots have 7.6m frontages and exhibit a tight neighbourhood fabric with narrow lots and features such as mutual right-of-way driveways.
The Eglinton Crosstown LRT is anticipated to open soon and is within easy access of the subject property.
13The proposal was redesigned and adapted to address concerns expressed by the neighbours.
14Ms. Sanchez provided an overview of the revised plans.
LINARES
15Mr. Linares addressed the requirement of OP Policy 4.1.5 that the proposal respect and reinforce the prevailing density and scale in the neighbourhood.
16Mr. Linares’s statistical analysis of FSI1 was applied to the properties facing onto Whitmore Ave between Dufferin St and Marlee Ave.
17The conclusion of Mr. Linares’s data analysis was a predicted FSI distribution that that FSI’s between 0 and 1 are within the “expected” FSI and therefore that the requested FSI for his proposal is within the “prevailing” definition for buildings on Whitmore Ave between Dufferin St and Marlee Ave.
PARTICIPANTS KOURAKOS
18Ms. Kourakos and Ms. Desroches spoke on behalf of their parents who own the next door property. Mr. Kourakos resides at the home with his parents.
19Ms. Kourakos said she understood the request for the sideyard setback but was of the opinion that the scale of the proposal is excessive. She stated that the development as proposed would have a negative impact on their enjoyment of the family property and would diminish their privacy.
20She expressed particular concern with the third floor, which is not an attic but a living space.
21Ms. Desroches said that most of the homes in the neighbourhood are single storey and it is only in the last few years that they are seeing more higher homes on the properties.
22She expressed concerns regarding the disruption caused by construction would have on her elderly parents who have health issues. The senior Mr. Kourakos requires a walker for mobility, and she was concerned about the impact on sidewalk accessibility.
23Mr. Kourakos was concerned about the shade that the proposal would cast on their back yard and the impact on their garden and apple trees.
ISSES AND ANALYSIS
24In order for the TLAB to approve the requested variances, I must be satisfied that the application meets the requirements of the Planning Act.
25A replacement dwelling is proposed for one that currently exists on the property. I find in this circumstance that the high-level policies of the Provincial Policy Statement and the Growth Plan are not directly engaged. I shall rely on application of the Official Plan policies and the Zoning By-law provisions to implement provincial policy directions.
Does the proposal maintain the general intent and purpose of the Official Plan?
26Ms. Sanchez reviewed the policies of the Official Plan, with an emphasis on OP Policy 4.1.5 which lists development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.
27Of the development criteria listed in OP Policy 4.1.5, I consider the following to be of most relevance to the requested variances:
4.1.5 Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: …
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;
28OP Policy 4.1.5 requires that a neighbourhood study area be identified in order to understand the existing physical character of the neighbourhood. Ms. Sanchez identified a general context for her understanding of the neighbourhood which included Whitmore Ave, Belgravia Ave, Hopewell Ave and Livingstone Ave. COA decisions for properties along these streets were provided in a table and copies of the decisions were included in the Disclosure of the Applicants.
- OP Policy 4.1.5 c) – prevailing density, scale and massing
29Mr. Linares provided a sophisticated statistical analysis that extrapolated from actual FSI variances approved by the COA and relied on visual observations of the number of storeys of individual houses in the neighbourhood. On the basis of this data, he predicted the “expected” FSI for houses in the neighbourhood.
30While I appreciate the analysis, I will not rely on a predictive model to determine the prevailing physical character of the neighbourhood. Firstly, OP Policy 4.1.5 requires that development respect the existing physical character, not a model of what could be. Secondly, the variables which influence development decisions are myriad and particular and as such are predicable only in an extremely general sense.
31OP Policy 4.1.5 defines “prevailing” as the most frequently occurring form of development.
While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood, provided that the physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood and already have a significant presence on properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighbourhood.
32The Table of approved variances included in Appendix I of Exhibit 2 shows that there have been 17 variances for FSI approved over the period for which data has been provided. Of these 17, ten were located on Whitmore Ave. Eight applications were granted a maximum FSI greater than that which is being proposed in this case, six of these located on Whitmore Ave.
33I am satisfied on the basis of the COA decision data that there are sufficient examples in the neighbourhood, in the immediate context, and in the immediately adjacent blocks, to support a conclusion that the proposal meets the general intent and purpose of OP Policy 4.1.5 regarding density.
34The photographic evidence included in Exhibit 2 Appendix H shows a number of examples of similar massing to that proposed for the subject property. The proposed third floor has been set back from the main walls of the building, reducing the profile.
35I note that the only variances required are for maximum FSI and side yard setback. No variances are requested for maximum height, maximum building length and building depth. I am satisfied on the basis of the evidence that the proposal respects and reinforces the prevailing massing and scale in the neighbourhood.
- OP Policy 4.1.5 c) – prevailing patterns of rear and side yard setbacks
36Exhibit 2, Appendix C contains a legal survey. This survey shows that the existing side yard setback is 0.46m. The application proposes to maintain that side yard setback dimension for the additional length of the proposed building.
37Reference to the maps, photographic evidence and record of COA decisions contained in Exhibits 2 and 3 support a conclusion that the proposed side yard setbacks maintain the general intent and purpose of the Official Plan with respect to the pattern of side yard setbacks.
38I find that the proposal overall respects and reinforces the prevailing massing, scale and density of the neighbourhood. The height of the proposal is within the maximum permitted by the Zoning By-law and therefore is deemed to be in compliance with the requirements of the Official Plan. The side yard setbacks are not atypical of those which prevail in the neighbourhood. I find that the proposal maintains the general intent and purpose specifically of OP Policy 4.1.5 and of the Official Plan overall.
Does the proposal maintain the general intent and purpose of the Zoning Bylaw?
39The high-level purpose of the Zoning By-law is to implement Official Plan policy. In other words, the standards and provisions in the By-law are intended to reflect the intent of the Official Plan and are deemed to do so2.
40The general intent and purpose of the maximum FSI provision in the Zoning Bylaw is to regulate potential overdevelopment of a property. For the same reasons outlined in the section above, I find that the proposed maximum FSI maintains the general intent and purpose of the Zoning Bylaw and that the proposed FSI does not constitute an overdevelopment of the site in this context.
41The general intent and purpose of the side yard setback provisions in the Zooning Bylaw are to maintain adequate access to the rear yard of the property and to provide an appropriate separation from adjacent buildings. I find that the proposed side yard setback will continue to meet these requirements.
Is the proposal Minor?
42The test for “minor” focuses on the scale and nature of perceived impact 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.
43The Kourakos family is understandably concerned that the development of the next-door property will cause disruption and stress to their elderly parents. I understand this concern and recognize that change in the situation adjacent to their home can be additionally distressing for those who are more house bound because of limited mobility.
44While I sympathize with the personal concerns of the Kourakoses, adapting to change and growth is a constant reality of City life.
45The proposal has been amended to show greater sensitivity to the neighbours by reducing the proposed wall height and scaling back the proposed balconies/terraces.
46The proposed height of the building is permitted as of right and so is the proposed building length and depth. Within the regulatory context, development in this form is contemplated, and the shadowing and overlook that will result is to be expected in an urban or suburban neighbourhood.
47While I understand that the neighbouring property owners would prefer that the environment around them stay as it is, and that the development may necessitate adjustments to the way the family enjoys their yard and property, I find that the proposed development is reasonable in its context and that no undue adverse impact of a planning nature can be adduced as a result of this proposed development.
Is the proposal Desirable for the Development of the Land?
48For the same reasons outlined in the sections above regarding the general intent and purpose of the Official Plan and the Zoning Bylaw, I find that the proposal meets the test of being desirable for the development of the land.
Planning Act s.45(18.1.1) Notice
49I find that the revisions that have been made to the application that was previously considered by the COA to be beneficial. Previously requested variances for maximum height of all side exterior main walls, maximum area of a platform at or above the second storey and setback for a platform without main walls have been eliminated and the requested variances for maximum floor space index (FSI) and minimum side yard setback have been reduced from those which were considered by the COA. I therefore find that no further notice is required in accordance with s.45(18.1.1) of the Planning Act.
CONCLUSION
50I find that the requested variances, individually and cumulatively, maintain the general intent and purpose of the Official Plan and Zoning Bylaw, are Minor and are desirable for the development of the land.
DECISION AND ORDER
The Appeal is allowed, in part. The variances listed in Appendix A are authorized, subject to the conditions contained therein.
A. Bassios
Panel Chair
APPENDIX A
APPROVED VARIANCES AND CONDITIONS OF VARIANCE APPROVAL:
VARIANCES:
- Section 10.80.40.40.(1) Bylaw 569-2013 – Floor Space Index
The permitted maximum floor space index is 0.8 times the area of the lot.
The proposed floor space index is 0.90 times the area of the lot.
- 10.80.40.70.(3) Bylaw 569-2013 – Side Yard Setback
The required minimum side yard setback for a detached house is 1.2 metres. The proposed West side yard setback is 0.46 metres.
CONDITIONS:
- The proposed dwelling shall be constructed substantially in accordance with the following plans and drawings as prepared by Morales and Pineros Contracting LTD, dated May 9, 2023, and attached hereto.
Site Plan (A0.1)
North Elevation (A2.0)
South Elevation (A2.1)
West Elevation (A2.2)
East Elevation (A2.3)
Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.
Footnotes
- [1] Floor Space Index, or FSI, is the ratio of the gross floor area of the structure in relation to the area of the lot.
- OP Policy 4.1.8 - Zoning by-laws will contain numerical site standards for matters such as building type and height, density, lot sizes, lot depths, lot frontages, parking, building setbacks from lot lines, landscaped open space and any other performance standards to ensure that new development will be compatible with the physical character of established residential Neighbourhoods.