Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-05-17

22 159333 S53 06 TLAB

22 159336 S45 06 TLAB

22 159500 S45 06 TLAB

MBM Homes Inc v. Scasserva, 2023 ONTLAB 90

DECISION AND ORDER

Issuance Date:

May 17, 2023

PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

MBM Homes Inc.

Applicant(s):

S. Qi

Property Address:

144 Winston Park Blvd

COA File No.:

19 123919 NNY 06 CO (B0011/19NY)

19 123927 NNY 06 MV (A0201/19NY)

19 123928 NNY 06 MV (A0202/19NY)

TLAB Case File No.:

22 159333 S53 06 TLAB

22 159336 S45 06 TLAB

22 159500 S45 06 TLAB

Hearing Date(s):

February 16, 2023

Decision Delivered By:

Panel Member T. Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner/Appellant

MBM Homes Inc. (C. Di Santo)

R. Cheeseman, S. Fleming

Owner’s planner

S. Qi

Appellant

MBM Homes Inc.

Next door Neighbour

A. Derda

INTRODUCTION AND CONTEXT

1MBM Homes Inc. seeks to sever its property at 144 Winston Park Blvd and build two semis, one on each lot. In addition to the severance, 2706463 requests the variances in Table 1 below. The property is on the west side of a north-south street. The draft R-Plan will divide the lot into Part 1 (north) and Part 2 (south). The Committee of Adjustment denied the application on May 26, 2022. MBM Homes appealed, and so this matter comes before the TLAB.

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Table 1. Variances sought for 144 Winston Park Blvd

Required/Permitted

Proposed Parts 1 (west) and 2 (east)

Variances from Zoning By-law 569-2013

1

Side Yard Setback (walls)

1.8 m each side

Interior side yard setbacks are 0.0 m.

2

Side Yard Setback (deck)

1.8 m each side

Same as previous line

3

Lot area

550 m²

289.88 m².

4

Frontage

15 m (49.2 ft)

Both Parts - 7.925 m (26 ft)

5

The proposed use, semi-detached dwelling, is not permitted

Both Parts: the use is not permitted

6

Max. no. of storeys

2

Both parts: 3

7

Max front and rear main wall heights

7.5 m

8.10 m

Variances from Zoning By-law 7625¹

8

Max. building height

8.8 m

9.53 m (Part 1); 9.60 m (Part 2)

9

Max. finished first floor height

1.5 m.

1.69 (Part 1); 1.76 m (Part 2)

THE LEGISLATIVE AND POLICY FRAMEWORK

3The Provincial Policy Statement and the Greater Golden Horseshoe Growth Plan are also applicable considerations but contain a high level of generality. For example, the Provincial Policy Statement discourages lot creation on prime agricultural land and prefers municipal water and sewage over private systems; these policies are not relevant in this development. I find that these documents offer little guidance for this case because of their high-level nature and because of the location of 144 Winston Park Blvd within a settlement area with water and wastewater systems.

4This case involves a request for a severance and variances and the Planning Act has separate tests for each.

With respect to a severance, the Planning Act uses the same criteria as a plan of subdivision², stated in s. 51(24). These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality” and to,

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; and . . .

(f) the dimensions and shapes of the proposed lots; . . .

5The variances from Zoning By-law 569-2013 and the predecessor By-law 7625 must cumulatively and individually:

• 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.

There is overlap between the severance and variance tests, particularly with regard to the application of the Official Plan test (see for example 51(24)(c)), just quoted.

EVIDENCE

6I qualified Mr. Qi as able to give opinion evidence in land use planning. Mr. Cheeseman called no other witnesses. Mr. Qi gave extensive evidence justifying all aspects of the development, including Provincial policy, the Planning Act and the four tests.

Member’s site visit

7As required by Council for TLAB members, I visited the site for the sole purpose of better assessing the evidence given at the hearing.

ISSUES AND ANALYSIS

8I first wish to deal with the lack of opposition. While I have an independent obligation to assure myself that the public interest is protected whether or not there is opposition, the TLAB has put in place a process and prioritizes a full attendance by opponents, who must have elected in advance to participate at the outset, not simply show up at the hearing, expecting the TLAB hearing to be similar to that followed at the Committee of Adjustment. This information is clearly shown on the TLAB website.

Notwithstanding this, I offered to allow Mr. Derda (the immediate north side neighbour) to make a statement and ask questions when Mr. Qi had concluded his evidence, over Mr. Cheeseman’s objection. Mr. Derda left at about 11:20 AM to go to another meeting. Ms. Fleming (co-counsel) told me that he had not elected to become either a “Party” or a “Participant”.

He did say that, “This doesn’t make any sense, the semis south of here are over 60 feet ; that’s a big difference”. I took this comment into consideration. In the end and in the circumstances, I do not make Mr. Derda a party.

9Site context

Figure 1. Left Aerial photo from Mr. Qi; Right Zoning Map

10The site is located in a residential pocket south and east of the Wilson/CNR track intersection. The main entrance into this pocket is via Northgate Dr, south from Wilson. Winston Park Blvd is the first east-west street; it is shaped like an inverted “L”, with MBM’s house in the midpoint of the vertical portion of the L. At the bottom of the L, Winston Park becomes Deverell Court which loops around and rejoins Winston Park. Between the tracks and Winston Park Blvd is an EL (Light Industrial) zone, almost completely occupied by a large warehouse. Mr. Derda advised that public meetings had been held on the planning of this piece of land and the City intends to expropriate a potion to create a new north-south street, to be called Murray Street. This new street will tunnel under the 401 and join Bridgeland Ave, which connects to the Dufferin/401 interchange. The neighbourhood will then have busy streets on the north west and south.

11The site is zoned RD Residential Detached, which permits only detached houses containing one dwelling unit. Two doors south of MBM’s house is a block of RM zoned land; this permits multiunit dwellings, such as semis and townhouses. I marked the start of this part as 150-152 on Figure 1.

Official Plan and zoning discussion

12I am approving this application. My reason for doing is because of the very close proximity of this RM zone (largely pairs of semis). As well, the zoning by-law’s numbers favour a semi which has a lot size similar to MBM’s proposal.

13The applicable Official Plan policy requires that both the severance and variances “fit in”; specifically:

4.1.5. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

b) prevailing size and configuration of lots;

c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;. . .

14The prevailing size and configuration of lots has both a severance aspect and variance aspect. Since a severance will create smaller lots, the severance aspect looks to other patterns of pairs of lots similar to what is created. The variance aspect along with the intent of the zoning by-law will look closely at patterns of frontages and areas similar to what is being proposed. In my view, the variance test adds the factors of “minor” and “desirable for the appropriate development”.

15Although I refer to each half as a “semi”; the zoning bylaw calls both halves together as an “entire semi detached house”. For this latter entity, the minimum lot frontage is 15 m and this is the standard used by the zoning plan examiner.

16MBM’s lot is 15.85 m wide, and the consent will create two 7.925 m lots. The zoning plan examiner states the discrepancy is 15 m +15 m (one semi plus one semi, each on a separate lot) = 30 m minus 15.85 m or 14.15 m. However compared to an RM semi, the discrepancy is more like 7.925 - 7.62 = 0.305 m (1 ft). In my view since semis are almost always owned by two owners and an “entire semi-detached house” rarely is on a single lot, this smaller number is more representative of the intent of the zoning by-law.

17When lot areas are compared, the differences are more complicated. The minimum lot area is 450 m², and MBM’s is 480 m², for a deficiency of 260 m². Most Winston Park semis back on the 401 Highway (See Figure 1 for those not familiar with the neighbourhood) and therefore were furnished with a greater lot depth to mitigate the constant traffic noise. Greater lot depth means they have greater areas for the same frontage.

18If we look at a typical pair of semis, say 174-176 Winston Park, we have frontages in the 8.9 m range and areas of 500 m² and 753 m² (550 m² required); so, for at least #174 (the 500 m² lot) , it is similar to MBM’s 480 m².

Figure 2. MBM front façade; Right 174-176 Winston Park Blvd

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21Also, the designs are similar. In Figure 2, I compare the front facades with 174-176 Winston Park. I find that the MBM designs are a modern “take” on a post war vintage semi, with some advantages such as having less front yard hardscaping, and wasted space on the exterior side lot lines. MBM’s external side yard setbacks do not require variances.

22With respect to the variance for number of storeys from two to three, Mr. Qi wrote:

The proposed dwelling being considered as 3 storey is technical in nature, as the basement has been considered the first storey due to the basement floor is located closer to the established grade compared to the first floor. If the basement is 27cm lower, the application would comply with the ZBL requirement. However, when viewed from the street, it will appear as 2 two-storey semi-detached dwellings with basement, which is similar to and will be compatible with other single and semidetached dwellings within the neighbourhood.

It complies with the By-law 569-2013, with overall height limit less than 10 m.

23In conclusion, I find this built form and the dimensions and shapes of the proposed lots respect and reinforce the prevailing physical character of the neighbourhood, and on that the intent of the Official plan is maintained. I find as well that the other statutory tests are met. On that basis I am prepared to approve the application.

DECISION AND ORDER

24The Consent Application is approved on Conditions in the City Planning Staff Report (Dated May 17, 2022).

25The Variances are authorized on conditions stated in the Urban Forestry Memorandum (Dated May 19, 2022) and provided that the exterior and site plans are in substantial compliance with the plans filed with the Buildings Department as modified by the addition of an opaque screen as described below.

26City Planning Staff Report (Dated May 17, 2022) Conditions

1. Confirmation of payment of outstanding taxes to the satisfaction of the Revenue Services Division, in the form of a statement of tax account current to within 30 days of an applicant's request to the Deputy Secretary-Treasurer of the Committee of Adjustment to issue the Certificate of Official [sic].

2. Municipal numbers for the subject lots indicated on the applicable registered reference plan of survey shall be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services.

3. One electronic copy of the registered reference plan of survey integrated to NAD 83 CSRS (3 degree Modified Transverse Mercator projection), delineating by separate Parts the lands and their respective areas, shall be filed with, and to the satisfaction of, the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services

4. One electronic copy of the registered reference plan of survey satisfying the requirements of the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services shall be filed with the Deputy Secretary-Treasurer of the Committee of Adjustment

5. Prepare and submit a digital draft of the Certificate of Official, Form 2 or 4, O. Reg. 197/96, referencing either subsection 50(3) or (5) of the Planning Act if applicable as it pertains to the conveyed land and/or consent transaction to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment

6. Once all of the other conditions have been satisfied, the applicant shall request, in writing, that the Deputy Secretary-Treasurer of the Committee of Adjustment issue the Certificate of Official

7. Within ONE YEAR of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions

27Urban Forestry Memorandum (Dated May 19, 2022) Conditions

Where 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.

28Opaque Screen condition

Opaque privacy screening shall be constructed along the north side of the rear deck, measuring at least 1.8 metres in height, and the width of the deck.

T. Yao

Panel Member

Footnotes

1. 1The plan examination of A. Smith, August 27, 2021 considered both by-laws because appeals under the 2013 (present) by-law were still being considered by the Ontario Land Tribunal. That process is now complete, and these variances are now probably not needed, but are being granted out of an excess of caution. For maximum building height the former by-law differed in the way it measured the “zero” point for height.
2. 2A severance divides one lot into two whereas a Plan of Subdivision creates many lots, often creating new roads and sewer and water systems as well.