Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File: 20 213776 S45 15 TLAB
DECISION AND ORDER
Issuance Date: May 23, 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): Chris Skillen; Steven Douglas Palmer; Kesa Senders
Applicant(s): Hirman Design Studio
Property Address: 91 Donwoods Dr.
COA File No.: 20 122515 NNY 15 MV (A0167/20NY)
TLAB Case File No.: 20 213776 S45 15 TLAB
Hearing Date(s): Thursday, May 20, 2021
Decision Delivered By: TLAB Panel Member S. Makuch
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Owner/Party | K. Hosseini | |
| Applicant | Hirman Design Studio | |
| Appellant | C. Skillen | |
| Appellant | S.D. Palmer | |
| Appellant | K. Senders |
INTRODUCTION AND CONTEXT
1This is an appeal by neighbours of variances granted by the Committee of Adjustment to permit the construction of a new dwelling in the Hoggs Hollow area of former North York.
2The test for approving minor variances is found in s. 45(1) of the Planning Act which provides that minor variances must: maintain the general intent and purpose of the Official Plan; maintain the general intent and purpose of the Zoning By-laws; be desirable for the appropriate development or use of the land; and be minor. In addition they must meet the requirements of the Provincial Policy Statement 2020 and the Growth Plan.
3A key issue of concern to the neighbours was the proposed removal of a tree located on the common property line between 91 Donwoods Drive and 93 Donwoods Drive. The tree in question is a 52 cm Sugar Maple, which is a jointly-owned boundary tree (“Boundary Tree”). The original plans submitted to the Committee would have necessitated the removal of the Boundary Tree. The TLAB hearing was initially scheduled for May 20, 2021. Just prior to that hearing, the basis of a settlement in principle was reached among the parties. The Chair was advised at the hearing that a settlement was anticipated, which was required to be implemented through Minutes of Settlement and subject to review by the applicable permitting agencies, being Urban Forestry (RNFP) and the TRCA. The settlement has since been implemented through updated plans, reviewed by the relevant agencies, and execution of Minutes of Settlement. TLAB had ordered “This matter is adjourned sine die. If a settlement is reached and approved by all relevant agencies and City Departments affidavit evidence may be filed with TLAB for a decision to be made and for an order to be issued.”
SUMMARY OF EVIDENCE
4The applicant has presented evidence of: the agreement to minutes of settlement among all parties; evidence in support of revised variances by virtue of the minutes; an affidavit of a qualified land use planner, Mr. Bencszcowski, as well as, the approval of all relevant agencies. Mr. Benczkowski’s affidavit includes evidence that the revisions to the plans and variances are minor and thus new notice is not required.
5The revised variances are as follows:
Chapter 10.5.40.50.(2), By-law No. 569-2013 - The required east side yard setback is 1.8m. The east side yard setback for the proposed platform is 1.22m.
Chapter 10.5.40.50.(2), By-law No. 569-2013 - The required west side yard setback is 1.8m. The west side yard setback for the proposed platform is 1.22m.
Chapter 10.5.40.60.(5)B)(ii), By-law No. 569-2013 - A chimney breast, on a building, may encroach into a required building setback a maximumof 0.6m, if it is no closer to a lot line than 0.3m. The proposed chimney encroaches 1.04m into the required east side building setback.
Chapter 10.5.40.60.(5)B)(ii), By-law No. 569-2013 - A chimney breast, on a building, may encroach into a required building setback a maximum of 0.6m, if it is no closer to a lot line than 0.3m. The proposed chimney encroaches 1.04m into the required west side building setback.
Chapter 10.5.40.60.(7), By-law No. 569-2013 - Roof eaves may encroach a maximum of 0.9m provided that they are no closer than 0.30m to a lot line. The proposed eaves encroach 1.16m into the required east and west side yard setback. The proposed eaves encroach 2.81 m into the required front yard setback.
Chapter 10.20.30.40.(1)A), By-law No. 569-2013 - The permitted maximum lot coverage is 30 percent of the lot area. The proposed lot coverage is 32.17% percent of the lot area.
Chapter 10.20.40.20.(1), By-law No. 569-2013 - In the RD zone with a minimum required lot frontage of 18.0m or less, the permitted maximum building length for a detached house is 17.0m. The proposed building length is 22.1m.
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 19.98m.
Chapter 10.20.40.70.(3)E), By-law No. 569-2013 - The required minimum side yard setback is 1.8m where the required minimum lot frontage is 18.0m to less than 24.0m. The proposed east side yard setback is 1.22m.
Chapter 10.20.40.70.(3)E), By-law No. 569-2013 - The required minimum side yard setback is 1.8m where the required minimum lot frontage is 18.0m to less than 24.0m.The proposed west side yard setback is 1.22m.
Chapter 10.5.40.70.(1), By-law No. 569-2013 - The minimum required front yard setback is 6.74 m. The proposed front yard setback is 4.48 m.
Section 12.7, By-law No. 7625 - The maximum permitted building height is 8.8m. The proposed building height is 8.92m.
6Mr. Benczkowski’s uncontradicted evidence is that as a result of the revisions the dwelling is shifted closer to the street by approximately 2.26 m, and a large portion of the basement and the below grade walkout is removed in order to eliminate the foundation’s encroachment into the tree protection zone. The ground floor will cantilever over the basement in that area. As a result of the above, the Boundary Tree will no longer require removal. “The Revised Plans result in the following amendments to the variances: a) The building depth is reduced from 22.11 m to 19.98 m (variance #8); and b) A variance has been added to permit the proposed front yard setback of 4.48 m, whereas a minimum front yard setback of 6.74 m is required.”
7In Mr. Benczkowski’s opinion, the revision to the proposal is minor for the purpose of s. 45(18.1) of the Planning Act. The reduction in building depth is an improvement to the variance and will enable preservation of the Boundary Tree and improve the relationship of the new dwelling to the adjacent properties.
8The variance for front yard setback will not be noticeable from a streetscape perspective, due to a number of factors. The front wall of the new dwelling will be located generally in line with the front wall of 93 Donwoods Drive, and in a similar location to the existing dwelling on the Subject Property. In addition, the front yard setback is measured on a line parallel to the front lot line. Due to the angled front lot line, the front yard setback is measured at a pinch point to the corners of the dwelling and the front foyer extension. The front yard setback increases at various points along the front wall. Finally, the adjacent neighbours, who are most directly affected, are in support of the revision to the application.
9The Minutes of Settlement and conditions include a requirement to plant a row of cedars adjacent to the new dwelling where it will project in front of the dwelling at 89 Donwoods Drive. This will act as a visual barrier between the front main walls of the dwellings as perceived from Donwoods Drive. In Mr. Benczkowski’s opinion, no further notice of the Revised Variances needs to be circulated. He also opines that the Revised Proposal meets the tests set out in s.45(1) of the Planning Act. He concludes that the settlement reached represents an appropriate resolution of the private and public interest, and represents an improvement as it will allow for the preservation of mature trees on site, including the Boundary Tree which is owned in common with 93 Donwoods Drive. He recommends that the appeals be allowed in part, and that the revised application reflected in the Revised Plans be approved, subject to the Revised Variances and certain conditions. I note Mr. Benzkowskie’s evidence also describes how the variance meet Provincial requirements.
CONCLUSION
10My visit to the site and the relevant agency approvals confirm Mr. Benczkowski’s uncontradicted evidence and I find the revised variances and plans should be approved subject to the conditions set out in his affidavit as they conform with provincial requirements and the Planning Act, s. 45 as described in Mr. Benczkowski’s affidavit.
DECISION AND ORDER
11The appeal is hereby granted in part and the revised variances set out above are approved subject to the conditions and plans set out in Appendix 1.
S. Makuch
Panel Member
Appendix 1
- The proposed dwelling shall be constructed substantially in accordance with the following plans and drawings prepared by Hirman Architects, dated June 17, 2021:
(a) Site Plan (Drawing A1);
(b) Basement Floor Plan (Drawing A2), to the extent that it depicts the permissible footprint of the basement and walkout (i.e., not the interior layout);
(c) Front (N.) Elevation (Drawing A6);
(d) Rear (S.) Elevation (Drawing A7);
(e) Side (W.) Elevation (Drawing A8); and
(f) Side (E.) Elevation (Drawing A9).
The Owner shall apply for a permit to injure or remove trees pursuant to Chapter 658 of the Municipal Code, Ravine and Natural Feature Protection.
The Owner shall plant a row of cedars, a minimum of 10 ft tall, adjacent to the northwest corner of the house, on or adjacent to the west property line where the wall of the new dwelling extends in front of the house at 89 Donwoods Drive.
The Owner shall plant a row of cedars, a minimum of 10 ft tall, adjacent to the southeast corner of the house, on or adjacent to the east property line where the wall of the new dwelling extends beyond the rear wall of 93 Donwoods Drive.