Stern v. Hutka, 2023 ONTLAB 83

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-05-04

21 246317 S45 03 TLAB

Stern v. Hutka, 2023 ONTLAB 83

DECISION AND ORDER

Issuance Date:

May 4, 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):

D. Stern

Applicant(s):

R. Stern

Property Address:

91 Lake Promenade

COA File No.:

21 226726 WET 03 MV (A0526/21EYK)

TLAB Case File No.:

21 246317 S45 03 TLAB

Hearing Date(s):

September 26 and October 3, 2022

Decision Delivered By:

Panel Member C. Kilby

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

R. Stern

For D. Stern

Appellant

D. Stern

I. Flett

Party (TLAB)

A. Hutka

A. Hora

Participant

C. Mercado

Participant

A. Choles

Participant

Long Branch Neighbourhood Association

INTRODUCTION AND CONTEXT

1Robert Stern proposes to build a two-storey addition to the existing dwelling at 91 Lake Promenade (Property), which is owned by Naomi Stern (Owner). On November 30, 2021, the Committee of Adjustment (COA) refused permission for the variances required to build the addition in COA File No. 21 226726 WET 03 MV (A0526/21EYK). Mr. Stern’s father, David Stern, appealed (Appeal) to the Toronto Local Appeal Body (TLAB). I will refer to both David and Robert Stern collectively as the “Applicant” throughout this decision.

2The original hearing date for this Appeal was adjourned on a motion by Andrea Hutka, an adjacent neighbour to the Property, who requested more time to retain an expert witness.

3The Appeal was heard on September 26, 2022, and October 3, 2022 (Hearing) via the City of Toronto (City) WebEx platform.

4Present at the Hearing were R. Stern and his counsel Ian Flett and expert witness Christian Chan. Ms. Hutka opposed the Appeal and was represented by counsel Alexander Hora and expert witness Jason Petrunia. The Long Branch Neighbourhood Association (LBNA) elected Participant status and also opposed the Appeal, represented by Christine Mercado and Andrew Choles. The City did not participate in the Appeal.

5I advised those in attendance at the Hearing that I had visited the Property and walked the neighbourhood prior to the Hearing, as required by Council. I also advised that a Hearing before the TLAB is a hearing de novo and the Applicant must present evidence to demonstrate that the relevant statutory tests are met.

Background

6The Property is located south of Lakeshore Boulevard West, west of Kipling Avenue, in the Long Branch residential neighbourhood. The Property is in an area designated as Neighbourhoods under the City’s Official Plan (OP) and is zoned RD(f12.0; a370; d0.35) under the City’s harmonized zoning by-law 569-2013 (Zoning Bylaw) and RS under the Long Branch Zoning Code.

7Proposed development in Long Branch is also assessed against the Long Branch Neighbourhood Character Area Guidelines (Guidelines). The Guidelines assist in the evaluation of development applications in the Long Branch neighbourhood, but are not in and of themselves a regulatory requirement to be met in order for variances to be permitted.

8The Property backs onto Lake Ontario and is part of the Natural Heritage System delineated in OP Map 9. Structures on these lakefront lots must be set back a minimum of 10 metres from the shoreline hazard limit, and any proposed development is subject to regulation by the Toronto and Region Conservation Authority (TRCA). The existing dwelling is presently located 0m from the shoreline hazard limit.

Application

9The Applicant proposes to alter the existing two-storey dwelling by building a front addition with an integral garage and new front porch, as well as a rear deck (Application). The Application has been amended over the course of successive applications to the COA and once more since the COA hearing. The Application comes before the TLAB with the following revisions:

a) the proposed garage design has been modified from below to at grade,

b) the proposed floor space index (FSI) variance has been reduced, and

c) the size of the front yard setback variance and the architectural feature encroachment variance have been reduced as a result of a change to the minimum front yard setback due to new development at an adjacent property.

10When an application is amended, subsection 45(18.1) of the Planning Act (Act) requires written notice of that amendment to be given to those who received notice of the original application. This notice requirement can be waived if the TLAB is of the opinion that the amendment is minor.

11I am satisfied that the changes to the Application represent a reduction by eliminating the variance for the garage and decreasing the FSI variance. Therefore, I find the waiver of notice requirements contemplated by subsection 45(18.1.1) of the Act applies and further notice of the revised Application is not required.

12The Applicant requests permission for the following variances:¹

Zoning Bylaw Provision

Proposed Variance

1

10.20.40.30.(1) Maximum Building Depth if Required Lot Frontage is in Specified Range

The permitted maximum building depth for a detached house is 19.0 metres.

The proposed building depth is 20.4 metres.

2

10.20.40.40.(1) Floor Space Index

A) The permitted maximum floor space index is 0.35 times the area of the lot: 99.89 square metres.

The proposed floor space index is 1.07 times the area of the lot: 305.1 square metres.

3

10.20.40.20.(1) Maximum Building Length if Required Lot Frontage is in Specified Range

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres.

The proposed building length is 21.3 metres.

4

10.20.40.70.(1) Minimum Front Yard Setback

The required minimum front yard setback is 12.12 metres.

The proposed front yard setback is 10.5 metres.

5

10.20.40.70.(3) Minimum Side Yard Setback

C) The required minimum side yard setback is 1.2 metres where the required minimum lot frontage is 12.0 metres to less than 15.0 metres.

The proposed east side yard setback is 0.7 metres.

6

10.5.40.60.(5) Architectural Features

(A) An architectural feature on a building may encroach into a required building setback a maximum of 0.6 metres.

The proposed architectural wall encroaches 0.72 metres into the required front yard setback.

7

5.10.40.70.(6) Setback from the Shoreline Hazard Limit or Stable Top-of-Bank

If the Toronto and Region Conservation Authority determines that a shoreline hazard limit crosses a lot, a building or structure on that lot must be set back a minimum of 10 metres from that shoreline hazard limit.

The proposed building is set back at zero (0) metres from and encroaching into that shoreline hazard limit.

13An updated Zoning Examiner’s Notice dated September 19, 2022 (Zoning Notice) indicated that: (1) a permit for construction for this project would be required to be issued by TRCA and (2) the proposed building is reviewed as a single-family dwelling with a secondary suite in the basement.

14The TRCA Report relating to this Application, dated November 29, 2021,² (TRCA Report) confirms that a permit is required from TRCA prior to the issuance of any municipal building permits, and that additional information regarding the secondary suite would be required for further review and comment prior to the issuance of any TRCA permits.

THE LEGISLATIVE AND POLICY FRAMEWORK

15At issue in this Appeal is whether the variances, individually and cumulatively, satisfy the four tests in section 45(1) of the Act.

Variance – S. 45(1)

16In 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 OP;
• 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.

17After carefully considering all of the evidence, I have determined that this Appeal should be allowed. For the reasons set out below, the requested variances are granted.

SUMMARY OF EVIDENCE

18A total of 27 exhibits were entered into evidence during the Hearing, encompassing expert witness statements, other witness statements, property data tables, policy materials, and visual evidence such as photographs and maps.

19I qualified both Mr. Chan and Mr. Petrunia as Expert Witnesses in land use planning on the basis of their professional credentials and experience.

20The Applicant introduced the Zoning Notice on the first day of the Hearing which included a new variance for building depth. The Zoning Notice also reduced the minimum front yard setback from 15.92m to 12.12m due to the redevelopment of the adjacent property at 93 Lake Promenade. This reduced minimum setback standard changed the requested variance for encroachment of the architectural feature from 4.32m to 0.72m.

21The updated Zoning Notice was not filed or served in advance of the first day of the Hearing. Following submissions from the Parties, I permitted the new Zoning Notice to be entered as Exhibit 3 and gave Mr. Petrunia an opportunity to address it more specifically during the second Hearing day.

22The recency of the updated Zoning Notice, along with other changes to the Application made after materials were filed, meant that some of the pre-filed evidence, including parts of Mr. Chan’s Expert Witness Statement and the LBNA’s submissions, did not speak to the most current iteration of the Application. Oral evidence given during the Hearing by all witnesses, including responses to questions, filled this gap.

23I have summarized below key evidence as it was presented during the Hearing, however, in reaching my decision I considered all the evidence presented in this Appeal.

Applicant Expert: Christian Chan

24Mr. Chan’s pre-filed materials included regulatory and policy documents, photographs and maps of the Property’s surroundings, and prior decisions of the COA for this area.

The Application

• Revised and presented to the COA three times
• Currently proposes an at-grade garage rather than a reverse-grade garage, thereby addressing a key concern of City planning staff
• The front wall of the addition will be parallel to the front lot line of the Property
• The arborist report indicates that there are no Zoning Bylaw-protected trees within the subject site and identifies three trees which may be affected by the Application: a Silver Maple tree on the adjacent property at 93 Lake Promenade, a Cherry tree in the boulevard in front of the Property, and a White Spruce tree on the adjacent property at 93 Lake Promenade
• The arborist report indicates that tree protection zones (TPZ) will be necessary for the maple and cherry trees and that the spruce tree will likely need to be removed to facilitate the redevelopment of 93 Lake Promenade
• The design of the driveway was adjusted to leave more space around the maple tree. Nevertheless, construction of the proposed driveway will encroach into the maple tree’s TPZ by 11.5% and will require a permit to injure from Urban Forestry
• There is an Urban Forestry Conditions letter relating to COA file A0015/22EYK which had the same requested variances as in this Application and the same proposed driveway and garage design
• The side yard setback continues an existing condition
• The shoreline hazard limit variance represents an existing condition that is unchanged by the Application
• FSI is calculated based on the developable area of the lot excluding lands within the shoreline hazard limit. Mr. Chan submitted that if the calculation is done using the entire area of the lot, there is a more meaningful point of comparison to other properties in the immediate context because the net developable area of each lot above its specific shoreline hazard limit is unknown
• There is no opposition to this Application from the TRCA or City Planning staff

The Context

• Mr. Chan established a neighbourhood study area (Study Area) to assess the character of the geographic neighbourhood as directed by the OP, focusing on the Property’s immediate context and including numbers 1-210 Lake Promenade
• The Study Area was delineated based on unique characteristics in that context such as lake frontage, lot pattern, orientation and shape
• The lots on the south side of Lake Promenade are deep and many are wider than in the rest of the neighbourhood. Some properties have extensive driveways leading to integral garages
• There is a mixture of building orientations on Lake Promenade due to varying lot frontages – dwellings on wider lots are oriented east-west and those on narrower lots are oriented north-south. Where lot frontage is narrow, the building lengths are longer

The OP

• The Application meets the intent of OP Policies 2.3.1.1, 3.1.2, 3.4, 4.1, and 4.1.5
• There are examples in the immediate context of variances similar to those sought by the Applicant in terms of setbacks, FSI, building length and building depth
• The Application does not set a precedent in terms of FSI when viewed against previously-approved developments in the immediate context on both a total lot area and a net developable lot area basis
• Front yard setback sizes vary in the immediate context, particularly along the south side of Lake Promenade where they are more generous than on the north side. This range indicates that there is no consistent or prevailing pattern of front yard setbacks
• The proposed side yard setback fits within the range of setbacks in the immediate context and the general character of the broader neighbourhood
• The massing of the proposed addition respects and reinforces the prevailing massing of buildings in the immediate context
• The Proposal leaves views of Lake Ontario to the south unobstructed

The Zoning Bylaw

• Mr. Chan focused on comparable variances in the immediate context as indicating that the Application would not set a precedent for the FSI, setback, and length variances in particular
• Development at the front of the lot is preferable to development at the rear of the lot, as it preserves the shoreline hazard limit and views of the lake
• The front yard setback variance will better achieve the average front yard setback distance from the street as between the neighbouring properties than what currently exists, and will create a more consistent street wall
• The existing character of the neighbourhood will not be affected by the Application

Desirable

• The Application represents regeneration and renewal of the neighbourhood’s housing stock
• City Planning opposition to the Application’s earlier iterations has been addressed by the revisions now before the TLAB

Minor

• The variances will not have adverse impacts on surrounding properties or the neighbourhood
• Many of the variances are numerically minor and some of them have been reduced to lessen the impact on neighbouring properties
• The proposed FSI represents only a slight increase over what exists when calculated on the basis of the entire lot area
• Impacts on the northwest views from the adjacent property to the east are the result of the staggered placement of buildings along the south side of Lake Promenade – it is an existing condition common to other properties in the immediate context
• There is no right to a view, and any light impacts resulting from the proposed addition would be minimal
• In any case, the most important view to be preserved is the southerly view of the lake and this is preserved
• Overall, Mr. Chan’s opinion was that the Application satisfies the four tests

Party Expert: Jason Petrunia

25Mr. Petrunia filed an expert witness statement with visual aids and an in-depth policy analysis. Mr. Petrunia’s opinion was that the variances do not meet the four tests. I have summarized the key elements of his evidence below.

• The Application is inconsistent with the PPS because it does not represent an efficient use of land and does not adequately consider environmental and conservation impacts
• The Application does not meet the definition of intensification in the Growth Plan
• The Application does not respect key Guidelines
• The shoreline erosion hazard demands that the Application be carefully analysed
• Although the Application has been revised, the overall building envelope has not been reduced since the November 2021 version of the Application and there has been little adjustment in response to feedback from neighbours
• The resulting massing will cause unacceptable adverse impacts in terms of shadow and view for the adjacent property
• The proposed rear deck will protrude into the rear yard and cause an impact to the enjoyment of the adjacent property
• The impacts on vegetation and trees at the adjacent property have not been assessed
• This case would set a precedent if the front yard setback variance is approved
• Front yard setbacks are a focal point for the Guidelines and the defining neighbourhood characteristic to consider when assessing the Application in its immediate context
• Rather than focusing simply on a numeric analysis, one must consider the relationship between blocks, buildings and the street, particularly in the unique setting of the shoreline lots on the south side of Lake Promenade
• The Guidelines describe Lake Promenade as having deeper and more generous front yard setbacks, which is an important characteristic for this street
• The buildings follow the lakeshore, creating an angle at which they front onto Lake Promenade, a unique situation in the broader neighbourhood and one which defines the primary plane in this immediate context
• The main consideration for the primary plane is the street wall, the orientation of buildings that define a consistent pattern of development along the street
• There are a series of primary planes along the street in the immediate context (see Ex. 5) despite differing front yard setback dimensions, representing the relationship between adjacent properties discussed in the Guidelines
• The correct FSI metric for the purposes of assessing the Application is the 1.07 figure from the Zoning Notice and not 0.42 as calculated by Mr. Chan. Even 0.42 represents a substantial increase over the permitted FSI for this Property and is not in keeping with the intention of the OP
• The purpose and intent of the Zoning Bylaw is to prescribe the built form to ensure adequate spacing, access to light, privacy and density to fulfil the intent and purpose of the OP
• The overall size of a dwelling is regulated through zoning standards for front and side yard setbacks, FSI and building length
• The variances sought are not minor and will result in a dwelling that protrudes into the front yard setback, changing the public realm significantly and resulting in undue adverse impacts of shadowing and overlook to the adjacent dwelling
• The variances are not desirable for the appropriate development of the land because they compromise liveability for the adjacent neighbours

Participants: LBNA

26The LBNA’s filed evidence included materials about the purpose and accomplishments of the organization, policy documents, the Guidelines, and direct responses to Mr. Chan’s evidence. Mr. Choles spoke in support of the LBNA’s position.

• The Application does not meet the four tests, particularly maintaining the purpose and intent of the OP
• A key focus for the LBNA, among other things, is the preservation of mature trees in the neighbourhood to further environmental and conservation goals and lessen the prominence of buildings
• Trees and landscaping will be affected by the Application by reducing space on the Property where mature trees could be planted, and through the replacement of the existing gravel driveway with the less permeable paved driveway
• The Silver Maple tree in front of the neighbouring 93 Lake Promenade is not sufficiently protected by the TPZ, and a tree at the corner of the Property will be lost. There is also no protection contemplated for trees on Ms. Hutka’s property
• The LBNA is also concerned with the preservation of the neighbourhood’s character and particularly the character of Lake Promenade, which has larger front yard setbacks than the broader geographic neighbourhood
• The Application contemplates intensification where it is not needed. The Long Branch neighbourhood is not targeted for intensification and increasing density in this neighbourhood will not respect and reinforce its existing physical character
• The proposed integral garage does not reflect the prevailing character of the immediate context and will dominate the dwelling’s front yard and primary façade in a manner that is inconsistent with the Guidelines
• The proposed addition will break the street wall and push a large structure into the public realm
• The side yard setback variance is inconsistent with the Guidelines
• The proposed FSI is much higher than the zoning standard for the Property, no matter which measurement method is applied, and higher than the prevailing FSI for the broader neighbourhood

ISSUES AND ANALYSIS

Policy

27TLAB decisions must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to, or at least not conflict with, the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the area. The PPS and Growth Plan are high level provincial policy documents concerning the location of new development and the environmental and public interests associated with such development. These policies are not typically engaged by a local variance application.

28The Application contemplates the enlargement and redevelopment of a single family dwelling in an urban area that is well-served by infrastructure and public service facilities. While a secondary suite was presented in the drawings, there is no evidence that it will be approved by the TRCA. The TRCA Report says that “additional dwelling units within the Shoreline Hazard will not be permitted.”³ As a result, I consider the Application to be for a single family dwelling which does not increase the housing density of the Long Branch neighbourhood over what presently exists. Accordingly, I find that the Application does not represent the type of intensification contemplated by the Growth Plan.

29Mr. Petrunia asserted that the Application does not take into account policy goals relating to environmental protection, specifically with respect to the shoreline hazard limit on the Property. However, the variance relating to the shoreline erosion hazard limit is not the result of a new condition created by the Application, but rather reflects the status quo.

30While the variance for the shoreline hazard limit is within the TLAB’s jurisdiction, the TRCA is responsible for the assessment of any environmental risks presented by the Application. The TRCA Report specifically considered whether the Application would introduce erosion and flood hazard risks associated with the Lake Ontario Shoreline. The TRCA concluded that the variances sought in this Application would have no impact on TRCA’s environmental policies and programs and did not object to the approval of the Application.

31As the TRCA did not take issue with the Application, and has responsibility to issue a permit for the construction of the Application, I am satisfied that there has been due consideration of the environmental protection goals discussed in the PPS.

32I find that the Application is consistent with the PPS and does not conflict with the Growth Plan.

The Four Tests

1. Do the Variances Maintain the General Intent and Purpose of the OP?

Expert witnesses in the area of land use planning can offer the TLAB guidance by way of professional opinion evidence as to how a particular application maintains the general intent and purpose of the OP. Mr. Chan highlighted OP policies 2.3.1, 3.1.2, 3.4 and 4.1 as having greatest application to this Appeal. Mr. Petrunia’s evidence focused on OP policies 3.1.1.16, 3.4.8(d), 3.4.10, and 5.5.1. The LBNA referred to OP policies 2.2.2, 2.3.1, 3.1, 3.1.1.16, 3.1.2, 3.4.1, 4.1.5 and 5.6.1.

Ultimately the interpretation of the OP is a question of law, not of fact.⁴ Read as a whole,⁵ the OP emphasizes the preservation of the existing physical character of designated areas such as Neighbourhoods. Stability, not stasis, is a goal of the various policies in the OP.

The Context

33Policy 4.1.5 of the OP requires proposed development in Neighbourhoods to respect and reinforce the existing physical character of its particular geographic neighbourhood. To assess the degree to which the Application maintains the general intent and purpose of the OP, therefore, I must first ascertain the physical character of the neighbourhood from the evidence.

34Mr. Chan defined the broader geographic neighbourhood as between Thirty-Third Street and Twenty-Third Street from south of Lakeshore Boulevard West to Lake Ontario. Rather than make this his neighbourhood study area and distinguish it from the Property’s immediate context, Mr. Chan opted to focus on properties on Lake Promenade. Taking into account the lake frontage and front yard setbacks unique to the southern side of Lake Promenade in particular, Mr. Chan’s view was that the most relevant physical context for the purpose of analyzing this Application is the properties on the same side of Lake Promenade as the Property and properties on the opposite side of Lake Promenade within the same and adjacent blocks, between 1 and 210 Lake Promenade (Study Area). While it was referred to as the Property’s immediate context during the Hearing, the Study Area includes more than just those properties in the same block as the Property, which distinguishes it from that term as defined by the OP.

35During the Hearing, Mr. Petrunia said that the Study Area should be narrowed to only lots on the south side of Lake Promenade, largely because of the particular character of their front yard setbacks and the resulting “primary plane” they create on the southern side of the street. He cited the Guidelines’ reference to the more generous front yard setbacks on Lake Promenade as reinforcing their distinct character in comparison to the majority of streets within the Long Branch neighbourhood.

36The LBNA proposed that a more appropriate study area would be the properties on both sides of Lake Promenade between Twenty-Eighth Street and Twenty-Fifth Street, comprising numbers 44 to 120 Lake Promenade. The LBNA asserted that the parkettes at these boundary streets form natural block divisions and that Mr. Chan’s Study Area is too large.

Findings: Study Area

37In general, taking a broad view of a neighbourhood to assess its physical character offers more information than is obtained by narrowly focusing on a property’s immediate surroundings. However, in this case, the Property is situated on the lakeshore, on a street where front yard setbacks and building orientation and placement on lots differ from the broader neighbourhood. These physical characteristics are relevant to the analysis of the Application. Moreover, the Parties in this Appeal did not argue that the Study Area should be larger, but rather sought to further contract the Study Area, as discussed above. I decline to further narrow the Study Area as urged by the Parties because:

a) the north side of Lake Promenade is important for the analysis of the Property’s engagement with the street and neighbouring dwellings in terms of front yard setback; and

b) the larger portion of Lake Promenade from numbers 1 to 210 provides more information about the physical character of lakefront lots in proximity to the Property than a narrower range would offer, particularly in terms of the front yard setback, building length, and building depth.

38For these reasons, I find it appropriate to use Mr. Chan’s Study Area to assess the existing physical character of the neighbourhood.

Variances Relating to the Front of the Dwelling

39I consider the front yard setback and architectural feature encroachment variances to relate primarily to the front of the proposed dwelling and will address them together. In this section I will also address arguments relating to the integral garage, although no variance is required for that element of the Application.

Front Yard Setback

40OP Policy 4.1.5 says that proposed development within a Neighbourhood “will be materially consistent with the prevailing physical character” of properties in the relevant context, with reference to those physical characteristics listed in the policy. One of those characteristics is “prevailing setbacks of building from the street or streets.”⁶ The Policy clarifies that “prevailing” is determined by the most frequently occurring characteristic in a neighbourhood.

Prevailing Character

41Mr. Chan’s view was that there is no consistent or prevailing pattern of front yard setbacks in the Study Area. A table of property data in Exhibit 2d sets out the variety of setbacks in the Study Area ranging from 4.04m at 1 Lake Promenade to 48.46m at 11 Lake Promenade. Mr. Chan submitted that the proposed front yard setback of 10.5m is close to the average of 10.2m for the Study Area. In light of the wide range of dimensions, I do not find this average useful.

42Mr. Petrunia emphasized large front yard setbacks as a defining characteristic of the Study Area. He pointed out the relationship between the blocks, buildings and street itself in the Study Area resulting from the angle of Lake Promenade which tracks the shoreline of Lake Ontario. Mr. Petrunia highlighted the unique angle at which buildings front onto Lake Promenade as a result of their particular orientation on their lots. He said that the different front yard setbacks created by this condition do not merely represent a range of numeric dimensions but rather a primary plane which creates a consistent pattern of development reflected in the street wall along Lake Promenade. In his view, approval of the front yard setback variance would create a protrusion of the dwelling into the street and disrupt the existing primary plane. The LBNA shared this concern.

43Primary plane is not a physical characteristic specifically mentioned in the OP or the Zoning Bylaw, but is rather discussed by the Guidelines in performance standard 3.2.2, “Building Face”. The rationale given for this standard is the creation of a “consistent and vibrant streetwall” that generally follows the rhythm of the street in question. Among the key design guidelines is the recommendation that front yard setbacks be consistent with “adjacent and surrounding properties.”

Findings

44A key aspect of the Application to be considered is the front wall alignment with neighbouring properties and setback from the public realm. The primary plane, while not in and of itself a formal criterion, is an articulation of this physical condition.

45I agree that to consider only the numeric value of the front yard setbacks in the Study Area would ignore its particular physical characteristics. Numeric data can be useful in the assessment of the prevailing front yard setback in neighbourhoods where dwellings have a generally consistent setback from the street. In this Study Area, however, there is no single prevailing front yard setback either numerically or physically because of the angle of Lake Promenade which tracks the undulation of the lakeshore to which it runs in approximate parallel.

46Therefore, I find that the physical context is a particularly critical component of the analysis of front yard setback and the architectural feature encroachment variances in this case.

47Excerpted below is an aerial representation of the Study Area taken from the City Property Data Map. The dwellings are outlined on the map in a way that permits examination of their approximate setback from the street and the orientation of the primary plane.

From Exhibit 2e, page 2 – Mr. Chan’s Delineation of the Study Area

48With reference to the image, several dwellings on both sides of Lake Promenade are oriented so that their front and rear walls are effectively parallel to the lakeshore, creating an angle between the front wall of the dwelling and the front lot line. Yet there are also dwellings whose front walls are roughly parallel to their front lot lines or to the street⁷ and these also form part of the physical character of the Study Area. Dwellings generally have similar setbacks from the street as their adjacent neighbours, with interruptions along the southern side of Lake Promenade that punctuate a new grouping.⁸ Exhibit 5 shows Mr. Petrunia’s demarcation of these separate primary planes.

49There is also a relationship between dwellings which face each other across Lake Promenade. The primary plane highlighted during the Hearing was on the south side of Lake Promenade, but there is also a north-south relationship between properties on the opposite sides of Lake Promenade. In general, from 44 to 170 Lake Promenade, the dwellings’ front walls are somewhat parallel to each other, often with landscaping or driveways in between. There is no standard separation distance between these dwellings but in the middle of the Study Area (44 to 119), most dwellings on both sides have large setbacks from the street and as a result, from each other.

50Overall, considering both the quantitative and qualitative evidence of the Study Area as presented by Mr. Chan, I find that there is no prevailing setback of buildings from the street in terms of dimension or orientation. In order for a front yard setback to respect and reinforce the existing physical character of the Study Area, I find that it must fit in with the setbacks of neighbouring properties, both adjacent and facing. This context-specific analysis is consistent with the recommendations in the relevant Guidelines.

51To determine whether the proposed front yard setback respects and reinforces the physical character of the Study Area, I must consider it in the context of its neighbouring properties. Although some numeric data was provided by the Applicant, I find that the best resource in this regard is the revised site plan dated April 15, 2022.

From Exhibit 2c, Tab 5a, page 5: Revised Site Plan

52A crucial element of this analysis is the proposed development to be built at 93 Lake Promenade, as it is the catalyst for the revised front yard setback variance. While Mr. Choles expressed concern about measuring front yard setbacks based on an unconstructed dwelling, the Zoning Examiner saw fit to issue a new Zoning Notice based on the approval of plans for that dwelling by the TLAB. On that basis, I find it appropriate to take that proposed dwelling into consideration.

53Mr. Hora also criticized the reference to 93 Lake Promenade, particularly with respect to the front yard setback variance, because the TLAB decision in that case was a settlement approval rather than an adjudication following an adversarial process. I see no basis to distinguish between settlement approval decisions and decisions made following a contested hearing. In both circumstances, the TLAB Member must hear the evidence and be satisfied that the Application meets the requirements of the Act.

54In this Study Area in particular, it is critical to assess front yard setbacks with reference to the physical reality on the ground, including setbacks of adjacent properties. The degree to which the proposed addition will protrude into the public realm by encroaching on the front yard setback is a question of context, and 93 Lake Promenade is an important reference point in this regard. Mr. Chan submitted that the proposed front yard setback variance will better achieve the average front yard setback distance from the street as between the neighbouring properties than what currently exists, and will create a more consistent street wall. I agree.

55As can be seen from the site plan, the front wall of the proposed addition falls between the front wall of the proposed dwelling at 93 Lake Promenade and the existing front wall of 89 Lake Promenade, which I find will create better alignment in the primary plane from 93 Lake Promenade to 83 Lake Promenade and result in a more consistent streetwall than what would exist if the proposed addition were not built. The proposed front yard setback of 10.5m is still a large setback from the street, respectful of the deep front yard setbacks that are characteristic of the Study Area. I find that in this particular context, the proposed front yard setback variance will not disrupt the public realm.

56Finally, there was disagreement about the suitability of the front wall of the proposed addition being parallel to the front lot line. In fact, the proposed addition is designed in such a way as to be both parallel to the front lot line and consistent with the angled front walls of the adjacent properties. The front wall of the dwelling is angled at the front entrance and on the second level, parallel to the front lot line. However, the front wall of the garage is not angled. The architectural feature at the east end of the property accentuates this double-planed design.

57I do not agree with Mr. Petrunia that the design of the proposed addition will establish a new primary plane or alter the front yard condition in this Study Area. As set out above, a dwelling being parallel to the street is not a unique presentation in the Study Area. Moreover, the garage will be at a similar angle to what presently exists at the Property. Further, Mr. Petrunia agreed on cross-examination that there is nothing in the Guidelines that expressly discourages parallel primary planes, and no such restriction was brought to my attention.

58For these reasons, I find that the variance for the front yard setback proposed by the Applicant maintains the general intent and purpose of the OP as articulated in policies such as 3.1.3 and 4.1.5(f).

Architectural Feature

59I find that the encroachment of the architectural feature is a necessary component of the design of the proposed addition. The feature offers articulation to the front wall that lessens the visual impact of the garage, consistent with performance standard 3.3.4 of the Guidelines. It also creates a distinction between the two different planes at the front of the dwelling, thus assisting in the integration of the design into the public realm. As such, I find that this variance maintains the general intent and purpose of the OP.

Garage

60The LBNA asserts that the proposed double-car garage is oversized for the Property and not consistent with the character of the neighbourhood, as double-car garages are not a prevailing neighbourhood characteristic in the Study Area.

61The photographic evidence proffered by both the Applicant and the LBNA demonstrate that there are many examples of integral garages in the Study Area, including double-car garages located to the side of a dwelling’s main entrance. For many properties in the Study Area, there is a single-car rather than a double-car garage. As there was limited evidence about the dimensions of lots having single-car as opposed to double-car garages, I am unconvinced that a lot with a particular frontage in this Study Area always has a single-car garage and that therefore a double-car garage is inappropriate in this case.

62The design of the proposed garage seeks to de-emphasize its appearance so that it will not dominate the front façade of the dwelling. I find this to be consistent with the principles and rationale of the driveways and garages performance standard set out in performance standard 3.4 of the Guidelines.

63I find that focusing on double-car garages specifically rather than integral garages is overly narrow. The test in the Act seeks maintenance of the “general intent and purpose” of the OP rather than requiring a rigid reproduction or replication of particular characteristics in a neighbourhood. I find that the proposed garage is materially consistent with the prevailing location, design and elevation of driveways and garages in the Study Area, consistent with OP policy 4.1.5(e).

64Another concern raised was the increase in non-permeable surface resulting from the construction of the driveway and the resulting reduction in plantable space for large trees. The driveway space does not currently host any trees.

65The Applicant confirmed that the proposed driveway was modified to incorporate a narrower and shorter driveway design than what currently exists to protect the Silver Maple tree at 93 Lake Promenade. As a result, the soft landscaping in the front yard will increase by 4%. I find that the driveway design has sufficient regard to the protection of trees and soft landscaping on the Property.

Scale Variances

66I consider the FSI, building length, building depth, and side yard setback variances relate primarily to the massing and scale of the proposed dwelling as contemplated by OP Policies 4.1.5(c) and (g). I will address them together in this section.

FSI - Measurement Method

67Overall, those opposed to the Application argued that the scale of the Application is too large and inappropriate in this context.

68In order to assess the degree to which the proposed FSI variance respects and reinforces the existing physical character of the neighbourhood, I must ascertain the prevailing FSI, if any. Mr. Chan calculated FSI using total lot area as opposed to only that developable portion of the lot excluding lands within the shoreline hazard limit. The other Parties disputed this method, although Mr. Petrunia agreed on cross-examination that it was a fair method to use for comparative purposes.

69I accept the Applicant’s evidence that the information about each lot’s shoreline hazard limit is not readily available. I find that to understand the existing physical character of the neighbourhood, the best information is FSI based on total lot area rather than on net developable land.

70Using figures provided by the Applicant’s architect,⁹ the relevant FSI figures for the Property are as follows:

	Current	Proposed
FSI based on total lot area	0.32	0.42
FSI based on net developable area	0.74	1.07

71City Planning staff took into account the way FSI measurements on lakeshore lots may artificially inflate the FSI figure and did not have a concern with the architect’s calculations. Their report dated November 22, 2021 refers to a prior version of the drawings and a prior FSI variance of 1.11, hence the discrepancy between the 0.42 FSI figure offered during the Hearing and the 0.47 FSI figure discussed in the City Planning Report. I accept 0.42 as the correct figure based on the revised Application.

Existing Physical Character of Study Area

72The density standard in this zone is 0.35 FSI. The LBNA provided an FSI map showing that many properties in the broader context, but outside the Study Area, are within this zoning standard. However, inside the Study Area, FSI figures vary considerably due to different lot sizes and dwelling styles.

73There is a wide range of FSI figures for the Study Area based on the Applicant’s table of City property data.¹⁰ The proposed FSI of 0.42 is found within the Study Area and does not represent an outlier. Many of the smaller FSI figures reported in that table relate to single-storey dwellings¹¹ or dwellings on large lots. With exceptions, the general trend, unsurprisingly, is that properties having a larger lot size (over 1000m²) have smaller FSI and properties with larger FSI, such as the Property and 93 Lake Promenade, sit on smaller lots.

74The different lot sizes suggest that context matters when considering prior planning approvals. I examined the table of approvals in the Applicant’s evidence¹² with reference to property data for the relevant properties. On this basis, I am satisfied that approval has been given for larger dwellings comparable to what is proposed by the Application on similarly-sized lots to the Property.

75I find that the proposed FSI variance will result in a dwelling with a massing and scale that is similar to other comparable properties in the Study Area and it will respect and reinforce the existing physical character of the neighbourhood.

Side Yard Setback

76The proposed side yard setback variance of 0.7m represents the continuation of an existing condition and therefore can be considered a technical variance. The Application removes a 2-storey, 2.1m² “bump-out” from the east side of the dwelling, which I find to be an improvement in terms of creating greater separation between dwellings.

77The addition will also create a longer wall between the dwellings where presently there is none. Mr. Petrunia highlighted the potential shadow and sunlight impacts to the adjacent dwelling to the east of the Property resulting from this variance. He suggested that the impact of the side yard setback variance would be less if there were “bump-ins” along the easterly wall of the proposed addition. I will address the impacts of this variance in the “Minor” section below.

78The Guidelines discuss the goal of side yard setbacks as maintaining separation between buildings, respecting the pattern of massing and scale, and reducing the perceived density of dwellings from the street.

79The OP requires development to respect and reinforce the prevailing patterns of side yard setbacks. I find from the property data tables and maps that there is a broad range of side yard setbacks in the Study Area. In most cases the side yard setbacks are not the same on both sides of a property.

80Given the evidence presented, I find that there is no prevailing side yard setback pattern or established numerical value in the Study Area. In some cases, the side yard setbacks are several meters wide, while in others they are less than 0.3m.

81Therefore, I find that the proposed side yard setback variance will respect and reinforce the existing physical character of side yard setbacks in the Study Area and will be materially consistent with the varying pattern that exists in the neighbourhood. It also continues the existing side yard setback condition maintaining the current separation between dwellings on abutting properties.

Building Length and Depth

82I find that there is a mix of building lengths in the Study Area. Although the evidence suggests that the proposed building length is among the larger dwelling lengths in the Study Area, I find that it is within the range of what exists in sufficient numbers, particularly for dwellings on narrow lots where buildings are oriented north-south rather than east-west.

83Moreover, quantitative analysis alone does not take into account the “staggered” placement of dwellings on lots in the Study Area. While a longer building may extend past building walls of abutting properties in settings where front walls are generally aligned, in this context, a longer building does not have as great an impact on neighbouring properties due to the angled primary plane characteristic of the Study Area. I find this “staggered” front wall characteristic and the proposed building length variance maintain material consistency with the physical character of the Study Area.

84Mr. Chan’s evidence during the Hearing was that the building depth variance was newly-added in the updated Zoning Notice, where the minimum front yard setback had been reduced such that the rear wall of the existing dwelling will now be more than 19m from the front yard setback. I am satisfied that the proposed building depth variance reflects a size and scale of dwelling that is materially consistent with the existing character of the Study Area based on the visual evidence provided.

85The LBNA highlighted examples of undesirable conditions such as tall, narrow and tightly spaced detached houses which increase lot coverage and result in the loss of mature trees. In this case, there is only one side yard setback variance which maintains an existing condition, and there are no variances requested for building height or lot coverage.

86The arborist report indicates that a White Spruce tree located at 93 Lake Promenade (Tree #4) is in conflict with the development at that address and as such, will likely be removed prior to the construction of the Application. There are no trees on the Property which will require removal to facilitate the Application.

87Overall, I find the variances that contribute to the massing and scale of the proposed dwelling to be materially consistent with the existing physical character of the Study Area. I also find the massing and scale are in keeping with the physical character of the neighbourhood and proportional to the lot. I find the variances will maintain the general intent and purpose of the OP.

Other OP Considerations

88In this final section, I will consider the shoreline hazard limit encroachment and the concerns raised about vegetation and the preservation of trees as they relate to the OP, particularly OP Policy 3.4.

89The White Spruce tree to be removed to facilitate construction of the new dwelling at 93 Lake Promenade is not impacted by this Application. I decline to consider it as its removal does not arise because of the proposed variances.

90Ms. Hutka is concerned that the trees on her property have not been adequately considered in the arborist report presented by the Applicant. These trees are not mentioned in the Urban Forestry materials in evidence. While those materials relate to prior iterations of the Application, the construction closest to Ms. Hutka’s property has not materially changed since they were issued. Standard Urban Forestry conditions applicable to this Application will be sufficient to capture any at-risk protected trees on Ms. Hutka’s property.

91The LBNA is concerned that the modified driveway design will not sufficiently protect the Silver Maple tree located at 93 Lake Promenade. Although the Applicant’s arborist submitted that the tree may suffer injury as a result of the construction of the proposed driveway even with the TPZ, his professional opinion is that the tree will survive. Neither Ms. Hutka nor the LBNA provided a competing arborist report to show that this conclusion is flawed or that there is a risk of injury to trees other than those identified by the Applicant’s arborist.

92I accept that trees are a valuable community asset and that they should be protected in order to provide their ecological function and general amenity to the neighbourhood. On the evidence before me, I am satisfied with the level of review and planning for the protection of affected trees.

93I agree with the LBNA and Ms. Hutka that the OP contains policies encouraging the preservation of the urban natural environment. The 0m distance from the shoreline hazard limit is a pre-existing condition created by the location of the existing dwelling. Historic aerial photographs show that there has been a structure in approximately the same position on the lot as the current dwelling since at least 1932. The shifting lakeshore and creation of the shoreline hazard limit postdate this reality. Moreover, the Application does not seek to construct any new structures within the shoreline hazard limit lands; it proposes an addition to existing development and/or a replacement structure, and it is thus onside the guidance set out in OP policy 3.4.8(d), as argued by Mr. Flett.

94The proposed shoreline hazard limit variance reflects the status quo: if the Application is denied, there will still be a building at 0m from the shoreline hazard limit. In any event, the TRCA has jurisdiction over this aspect of the Application and is responsible to issue the necessary building permits, including any for a possible secondary suite. I am satisfied that the environmental protection goals of the OP have been, and will be, safeguarded by this oversight. For these reasons, I find that the shoreline hazard limit variance maintains the general purpose and intent of the OP.

Overall Conclusion

95I find that the proposed variances, individually and cumulatively, maintain the general intent and purpose of the OP.

2. Do the Variances Maintain the General Intent and Purpose of the Zoning Bylaws?

96The general intent and purpose of the Zoning Bylaw, as a whole, is to set building performance standards that execute the goals of the OP. For that reason, much of my analysis under the first test above is relevant to the consideration of this second test.

97I am satisfied that the front yard setback and architectural feature encroachment variances maintain the general intent and purpose of the Zoning Bylaw to preserve a separation between the front wall and the public realm. I have outlined above my analysis of the relevant context which supports this finding.

98The side yard setback maintains the existing separation between dwellings on the east side of the Property. The Application will also improve this condition by removing a “bump-out” from that side of the dwelling. I find that access to the rear yard is improved by the removal of this feature and that the proposed side yard setback variance meets the general intent of the Zoning Bylaw to ensure adequate spacing and access.

99The building depth variance arises in part from the location of the proposed addition at the front of the existing dwelling and from the revision to the Property’s minimum front yard setback caused by the redevelopment of 93 Lake Promenade. The Application does not change the location of the dwelling’s rear wall nor the extent to which it protrudes into the rear yard. The Zoning Bylaw’s general intent to limit the encroachment of dwellings into open space is maintained by the proposed building depth variance.

100The building length variance is within the range of existing building lengths in the Study Area, and particularly for those properties having a narrower lot frontage like the Property. I find that the Application will not result in an overly-long dwelling nor extend the rear wall too far past its adjacent neighbours either at the front or rear of the dwelling. I find that this variance maintains the general intent and purpose of the Zoning Bylaw, is not overdevelopment of the Property, and will maintain a building massing and size that is compatible with dwellings in the Study Area. Moreover, the impacts of overlook and on privacy are mitigated by the absence of windows and fenestration on the east side of the proposed addition.

101The proposed FSI does reflect a larger dwelling than what the Zoning Bylaw permits, hence the requirement for a variance. The regulation on FSI is meant to control the size and scale of dwellings in a neighbourhood to ensure compatibility and consistency among properties. For the reasons outlined above, I find that the proposed FSI will respect the general character of the Study Area in terms of scale and massing, particularly when it is considered in the context of the total lot area for the Property, which renders it more easily compared to its neighbours.

102As I explained above, the shoreline hazard limit variance reflects an existing and historic condition which the Application does not alter. The location of the proposed addition at the front of the Property is the Applicant’s response to the limits set by this protective boundary.

3. Are the Variances desirable for the appropriate development or use of the land?

103The Applicant characterizes the Application as regeneration of old housing stock and renewal. There is feedback in the form of letters of support from neighbouring residents other than Ms. Hutka indicating that this renewal is welcome and that they support the Application.¹³

104At a public interest level, my understanding of the arguments made in opposition to this Application is that it does not do enough to align with policy goals or best practices. Mr. Petrunia identified the Guidelines as articulating the interests of the wider neighbourhood. I have found that the variances satisfy the rationale of the applicable Guidelines for the most controversial elements of the Application.

105I am satisfied that overall, the variances reflect a considered design for an addition to a dwelling which will benefit from renewal. The Application seeks to modernize and enhance an existing dwelling in a unique context and does so with attention to some of the more sensitive elements of its site (the shoreline hazard limit and the Silver Maple).

106Altogether, I find that the proposed variances are desirable for the appropriate development and use of the land.

4. Are the Variances Minor?

107The test for minor focuses on the scale and nature of perceived impacts caused by or resulting from variances. The courts have established that the test is not that there be no impact, but that the imputed impact or impacts rise to the level of being an undue adverse impact of a planning nature.

108I find that the proposed variances for building depth, building length, front yard and side yard setback, and architectural feature encroachment are numerically minor. The shoreline hazard limit variance is not new and therefore I consider it to be minor, even though it reflects a 0m distance where 10m is required. With reference to the above discussion of primary plane, I find that the front yard setback is minor both numerically and physically. The location of the front walls of adjacent dwellings means that it will not protrude into the public realm in an inappropriate way or have an undue adverse impact from a planning perspective.

109I find the increase in gross floor area is scaled appropriately for the size of the Property and the resulting FSI variance can be considered numerically minor when considered in terms of the increase it represents to the existing footprint of the dwelling.

110In terms of the impacts of the proposed variances, those opposed to the Application highlight the impact on trees and vegetation, the reduction in the front yard and side yard setbacks, and the shadow and visual interference caused by the proposed addition. Ms. Hutka asserted that the scale of the proposed addition did not meaningfully change between the November 2021 and the March 2022 applications. At a TLAB hearing, the onus rests with the Applicant to make their case and present their evidence. Ultimately, the TLAB must be satisfied that the Application meets the criteria set out in the Act, based on the application and evidence before it.

111I find that the variances will not have an undue adverse impact in terms of environmental and green space concerns. I have discussed above my findings in relation to the existing trees on the Property and on adjacent properties. While there may be increased impermeable surface resulting from the change in driveway materials, I find this to be mitigated by the decrease in the size of the driveway over what presently exists. Moreover, the construction of the new driveway will not require the removal of existing soft landscaping or space that is otherwise being used for trees. The Applicant has made plans to limit harm to the Silver Maple tree as a result of the construction of the driveway. The shoreline hazard limit variance is an existing condition independent of the Application.

112Mr. Petrunia offered evidence that the side yard and front yard setbacks, along with the increased length of the dwelling, will result in a loss of sunlight and views at the northwest corner of the adjacent dwelling. Mr. Flett pointed out that the views lost were of the Property’s driveway, which he submitted is a less valuable and important view than that of Lake Ontario.

113I find that the Application’s impacts on shadow and sunlight highlighted by Mr. Petrunia do not rise to the level of undue adverse impacts from a planning perspective. Rather, they represent the sometimes unavoidable realities of urban living.

114In terms of the concern that the rear deck proposed by the Application will impact on the enjoyment of Ms. Hutka’s property, there is no variance associated with the rear deck and I decline to address this part of the Application.

115Therefore, I find the proposed variances, individually and cumulatively, satisfy the test of minor.

CONCLUSION

116I find that the proposed variances, individually and cumulatively, satisfy the four tests set out in section 45(1) of the Act. The Appeal is allowed and the Application is granted with conditions.

DECISION AND ORDER

117The Appeal is allowed and the Decision of the Committee of Adjustment dated November 30, 2021 in file number 21 226726 WET 03 MV (A0526/21EYK) is set aside.

118The following variances are approved subject to the conditions below.

Zoning Bylaw Provision

Proposed Variance

1

10.20.40.30.(1) Maximum Building Depth if Required Lot Frontage is in Specified Range

The permitted maximum building depth for a detached house is 19.0 metres.

The proposed building depth is 20.4 metres.

2

10.20.40.40.(1) Floor Space Index

A) The permitted maximum floor space index is 0.35 times the area of the lot: 99.89 square metres.

The proposed floor space index is 1.07 times the area of the lot: 305.1 square metres.

3

10.20.40.20.(1) Maximum Building Length if Required Lot Frontage is in Specified Range

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres.

The proposed building length is 21.3 metres.

4

10.20.40.70.(1) Minimum Front Yard Setback

The required minimum front yard setback is 12.12 metres.

The proposed front yard setback is 10.5 metres.

5

10.20.40.70.(3) Minimum Side Yard Setback

C) The required minimum side yard setback is 1.2 metres where the required minimum lot frontage is 12.0 metres to less than 15.0 metres.

The proposed east side yard setback is 0.7 metres.

6

10.5.40.60.(5) Architectural Features

(A) An architectural feature on a building may encroach into a required building setback a maximum of 0.6 metres.

The proposed architectural wall encroaches 0.72 metres into the required front yard setback.

7

5.10.40.70.(6) Setback from the Shoreline Hazard Limit or Stable Top-of-Bank

If the Toronto and Region Conservation Authority determines that a shoreline hazard limit crosses a lot, a building or structure on that lot must be set back a minimum of 10 metres from that shoreline hazard limit.

The proposed building is set back at zero (0) metres from and encroaching into that shoreline hazard limit.

119The following conditions apply:

1. Construction shall be carried out substantially in accordance with the revised plans and drawings prepared by Peter Gabor Architect dated April 15, 2022 numbered A00, A01, A05, A06, A07, and A08 (attached). For greater clarity, this condition shall not apply to the interior of the proposed structure. Any variances that may appear on those plans that are not listed in this decision are NOT authorized.

2. Submission of a complete application for a permit to injure or remove a privately owned tree(s), specifically the Silver Maple tree identified as tree #3 in the Arborist Report prepared by Kent Nielsen dated September 17, 2021, as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

3. All by-law protected trees located on site and within 6 m of the site (12 m within the ravine protected area) must be protected in accordance with the City's Tree Protection Policy and Specifications for Construction near Trees. No excavation, grade changes, cutting of tree roots, extensive pruning to the tree's canopy or movement or storage of equipment/construction material/excavated soil is permitted within the minimum tree protection zones of trees unless prior authorization has been obtained from Urban Forestry.

C. Kilby

Panel Member

Footnotes

1. 1Taken from updated Zoning Notice dated September 19, 2022, Exhibit 3.
2. 2Exhibit 2c, Tab 7h.
3. 3Exhibit 2c, Tab 7h, page 2.
4. 4Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173 at para. 43, citing with approval Toronto (City) v. Romlek Enterprises, [2009] O.J. No. 2232 at paragraph 34.
5. 5OP Policy 5.6.1.
6. 6OP Policy 4.1.5(f).
7. 7See, e.g., 196, 194, 192, 126, 47, 1, 2, 3, 6 Lake Promenade.
8. 8See, e.g., a shift between 185 and 181, 111 and 107, 35 and 33 Lake Promenade.
9. 9See Exhibit 2c, Tab 5a, pages 4 and 17.
10. 10Exhibit 2d, Tab 8l, page 74. This data might not be up to date but it was the best information available along with COA decisions which I will address.
11. 11See, e.g., 3, 51, 89, 117, 133, 143, 167.
12. 12Exhibit 2d, Tab 9a, page 90.
13. 13Exhibit 2f, Tab 12a, page 21.