Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
Date: 2023-08-31
23 128437 S45 15 TLAB
Crystal (Re), ONTLAB 129
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): EUGENE CRYSTAL
Applicant(s): EUGENE CRYSTAL
Property Address: 37 BLYTH HILL RD
COA File No.: 23 104240 NNY 15 MV (A0044/23NY)
TLAB Case File No.: 23 128437 S45 15 TLAB
Hearing Date(s): August 25, 2023
Decision Delivered By: TLAB Panel Member B. Martin
REGISTERED PARTIES AND PARTICIPANTS:
People Type First Initial. Last Name Representative
Appellant E. Crystal D. Wood
Owner E. Crystal
Expert Witness A. Litavski
INTRODUCTION AND CONTEXT
1This was a hearing of an appeal by Eugene Crystal (“Appellant”) from a decision of the Committee of Adjustment for the City of Toronto to refuse minor variances from Zoning By-law 569-2013 for the property at 37 Blyth Hill Road.
2The Variances sought were:
Chapter 10.20.40.70.(3), 900.3.10 Exception RD5, By-law No. 569-2013 The minimum permitted side yard setback is 1.8m. The proposed east side yard setback is 1.2m.
Chapter 10.20.40.70.(3), 900.3.10 Exception RD5, By-law No. 569-2013 The minimum permitted side yard setback is 1.8m. The proposed west side yard setback is 1.2m.
Chapter 10.5.40.50.(2), By-law No. 569-2013 The minimum permitted side yard setback for a platform without main walls, such as a porch, balcony, or similar structure, attached to the building is 1.8m. The proposed front porch is 1.20m from the east side lot line.
Chapter 10.5.40.50.(2), By-law No. 569-2013 The minimum permitted side yard setback for a platform without main walls, such as a porch, balcony or similar structure, attached to the building is 1.8m. The proposed rear stair platform is 1.45m from the east side lot line.
Chapter 10.20.40.10.(2), By-law No. 569-2013 The permitted maximum height of side main walls is 7.5m, for at least 70% of the total width of each side main wall. The proposed side main wall height is 10.15m.
Chapter 10.20.40.20.(1), By-law No. 569-2013 The permitted maximum building length for a detached house is 17.0m. The proposed building length is 21.26m.
Chapter 10.20.40.30.(1), By-law No. 569-2013 The permitted maximum building depth for a detached house is 19.0m. The proposed building depth is 20.04m.
Chapter 10.5.80.40.(2), By-law No. 569-2013 For a detached house where an individual private driveway leads directly to the dwelling unit, the elevation of the lowest point of a vehicle entrance in a main wall of the building must be higher than the elevation of the centreline of the driveway at the point where it intersects a lot line abutting a street.
Chapter 10.5.40.60.(3), By-law No. 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6m. The proposed side stairs are 0.3m from the west side lot line.
Chapter 10.20.40.10.(1), By-law No. 569-2013 The permitted maximum height of a building or structure is 10m. The proposed height of the building is 10.15m.
Chapter 10.5.50.10.(C,D), By-law No. 569-2013 For lots with a lot frontage of 15.0m or greater, a minimum of 60% of the front yard must be landscaping; and a minimum of 75% of the front yard landscaping must be soft landscaping. The proposed soft landscaping is 73.41%.
3The Committee of Adjustment approved 10 of the proposed 11 minor variances. The refused variance was:
Chapter 10.5.80.40.(2), By-law No. 569-2013 For a detached house where an individual private driveway leads directly to the dwelling unit, the elevation of the lowest point of a vehicle entrance in a main wall of the building must be higher than the elevation of the centreline of the driveway at the point where it intersects a lot line abutting a street.
4The Appellant was represented by lawyer Dennis Wood of Wood Bull.
5Mr. Wood called Mr. Adrian Litavski of Johnston Litavski Planning Consultants who was qualified during the hearing to give expert opinion evidence in land use planning.
6No parties or participants attended the hearing either in opposition or support of the requested variances.
7The minor variances requested would permit the construction of a new 2-storey single detached house, which would replace the existing single detached house on the lot.
THE LEGISLATIVE AND POLICY FRAMEWORK
8Provincial 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.
9Variance – 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
10The property at 37 Blyth Hill Road is 696.77 square metres in area with 15.24 metres of frontage and a depth of 45.72 metres.
11There is one private tree in the front yard and another in the rear yard. Both meet the City’s requirements for a permit to injure or remove a privately owned tree.
12The Appellant proposes to construct a new two-storey home with a basement, an
13integral garage, a rear deck, and a swimming pool. The garage will be accessed via a reverse grade driveway. A portion of the basement shall extend beyond the proposed rear deck, offering a full walk-out entrance to the basement due to the significant drop in grade from the front of the home to the rear.
14The existing 2–storey detached home features an attached double car garage that is accessed via an existing reverse grade driveway.
15The property is in an area designated Neighbourhoods in the City of Toronto Official Plan.
16The property is zoned RD – Residential Detached (f15.0, a550) (x5) pursuant to By-law 569- 2013.
17Mr. Litavski’ s Neighbourhood Study Area (NSA) was the Bridle Path-Sunnybrook-York Mills community.
18The NSA has been an area of the city where the first generation of single detached homes are being replaced with larger 2-storey single detached homes.
19Areas of the city designated Neighbourhoods are stable, but not static. The Official Plan therefore expects and allows new development in areas designated Neighbourhoods provided the new development respects the existing physical character of the area and reinforces the stability of the area. He emphasized that respect does not require sameness but requires the physical character of the area is maintained.
20Mr. Litavski stated that the new home as proposed was consistent with the existing physical character of homes in the NSA and was a compatible fit with the mix of architectural styles, roof lines, integral garages, and performance standards currently applied to many existing original and replacement dwellings.
21Official Plan Policy 4.1 5 e), states that development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, which includes the prevailing location, design, and elevations relative to the grade of driveways and garages.
22The general intent of Chapter 10.5.80.40.(2), By-law No. 569-2013 is to mitigate potential basement flooding in the event of a major storm.
23Reverse grade driveways exist in the NSA, including several which were approved by the Committee of Adjustment or the OLT. Specifically, there are 32 existing reverse grade driveways in the neighbourhood, including one that currently exists on the property.
24In January 2021, the City of Toronto published its second edition of its “Design Criteria for Sewers & Watermains”, which included as Appendix F a specific set of guidelines for the design of reverse-grade driveways. The guidelines were created because such driveways are often approved via minor variance.
25The following is an excerpt from Appendix F:
“Reverse slope driveways cannot be drained naturally since they create a low-lying area that water cannot outlet from but only accumulate in. If the mechanical drainage appurtenances such as catch basins, sumps or sump pumps fail or are overwhelmed by a large storm, then storm water can enter the home resulting in expensive flood damage for the property owner. In addition, it can surcharge the local sanitary sewer system by way of the homeowners’ floor drain which could cause sewer backups of neighbouring properties.
Zoning By-law 569-2013 prohibits the construction of below-grade garages for residential buildings anywhere in the city. Should an application for exemption be applied through a Minor Variance Application or a re-zoning application, the following is provided for information.
Toronto Water division requires that a report be prepared by a licensed professional engineer and be submitted for approval prior to the construction of a reverse slope driveway. Applicants are asked to demonstrate in the report that the drainage from the area will not lead to flooding of the reverse slope driveway.”
26The Appellant hired Husson Engineering to prepare a report required by the guidelines, and which demonstrated that the driveway could and would be designed to prevent any basement flooding in the event of a 100-year storm.
27The Husson Engineering report concludes that the Blyth Hill Road right-of-way drains from west to east so ponding in the right-of-way is not a concern along the lot frontage. The reverse grade driveway will be designed with a high point at the property line abutting the right of way. The driveway will have retaining walls on either side, and the grading of the front and side yards will be designed to direct all anticipated storm drainage away from the driveway. Any stormwater that does fall on the driveway itself will be directed to a trench drain at the base of the driveway and be discharged to the ground surface in the front yard via a sump pump. Backup pumps and emergency power systems will be provided.
ISSUES AND ANALYSIS
28Mr. Litavski’ s expert opinion in land use planning was that the variances requested, both cumulatively and individually, satisfy the four tests under s. 45(1) of the Act, being 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.
- are minor.
29I agree with Mr. Litavski’ s opinion but will further discuss the issue of the requested reverse grade driveway that was refused by the Committee of Adjustment.
30Chapter 10.5.80.40.(2), By-law No. of Zoning By-law 569-2013 does not permit reverse grade driveways, however Official Plan Policy 4.1 5 e) establishes a policy that acknowledges there are geographic neighbourhoods in the city where reverse grade garages are prevalent and should therefore be considered as part of the neighbourhood’s character.
31The recommendations in the Husson Engineering report will have to satisfy the City of Toronto development engineers prior to the issuance of a building permit to build the replacement house as proposed.
CONCLUSION
32A hearing of TLAB to consider an appeal by Eugene Crystal was conducted on August 25, 2023. Opinion evidence from Mr. Adrian Litavski was presented during the hearing. After consideration of the opinion evidence, TLAB was satisfied that the four statutory tests for approval of the minor variances had been satisfied.
DECISION AND ORDER
33The Tribunal will conditionally allow the Appellant’s appeal as set out below.
34The following minor variances are approved:
Chapter 10.20.40.70.(3), 900.3.10 Exception RD5, By-law No. 569-2013 The minimum permitted side yard setback is 1.8m. The proposed east side yard setback is 1.2m.
Chapter 10.20.40.70.(3), 900.3.10 Exception RD5, By-law No. 569-2013 The minimum permitted side yard setback is 1.8m. The proposed west side yard setback is 1.2m.
Chapter 10.5.40.50.(2), By-law No. 569-2013 The minimum permitted side yard setback for a platform without main walls, such as a porch, balcony, or similar structure, attached to the building is 1.8m. The proposed front porch is 1.20m from the east side lot line.
Chapter 10.5.40.50.(2), By-law No. 569-2013 The minimum permitted side yard setback for a platform without main walls, such as a porch, balcony or similar structure, attached to the building is 1.8m. The proposed rear stair platform is 1.45m from the east side lot line.
Chapter 10.20.40.10.(2), By-law No. 569-2013 The permitted maximum height of side main walls is 7.5m, for at least 70% of the total width of each side main wall. The proposed side main wall height is 10.15m.
Chapter 10.20.40.20.(1), By-law No. 569-2013 The permitted maximum building length for a detached house is 17.0m. The proposed building length is 21.26m.
Chapter 10.20.40.30.(1), By-law No. 569-2013 The permitted maximum building depth for a detached house is 19.0m. The proposed building depth is 20.04m.
Chapter 10.5.80.40.(2), By-law No. 569-2013 For a detached house where an individual private driveway leads directly to the dwelling unit, the elevation of the lowest point of a vehicle entrance in a main wall of the building must be higher than the elevation of the centreline of the driveway at the point where it intersects a lot line abutting a street. The proposed driveway will lead directly to the dwelling unit, The elevation of the lowest point of a vehicle entrance in the main wall of the building will be lower than the elevation of the centreline of the driveway at the point where it intersects a lot line abutting a street.
Chapter 10.5.40.60.(3), By-law No. 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6m. The proposed side stairs are 0.3m from the west side lot line.
Chapter 10.20.40.10.(1), By-law No. 569-2013 The permitted maximum height of a building or structure is 10m. The proposed height of the building is 10.15m.
Chapter 10.5.50.10.(C,D), By-law No. 569-2013 For lots with a lot frontage of 15.0m or greater, a minimum of 60% of the front yard must be landscaping; and a minimum of 75% of the front yard landscaping must be soft landscaping. The proposed soft landscaping is 73.41%.
35Submission of a complete application for a permit to injure or remove a privately owned tree(s) located within a ravine protected area and/or the submission of a complete application for a permit to place or dump fill or refuse or alteration of grade on any land within a ravine protected area, as per City of Toronto Municipal Code Chapter 658, Ravine and Natural Feature Protection.
36Where there is no existing street tree, the owner shall provide payment in lieu of planting of one street tree on the City Road allowance abutting each of the sites involved in the application. The current cash-in-lieu payment is $583/tree.
37The building length will be in accordance with the attached site plan drawing.
38The height of side main walls of the building will be in accordance with the attached north and south elevation drawings.
B. Martin Panel Member