Toronto (City), Long Branch Neighbourhood Association v. Singh, 2023 ONTLAB 93

Toronto Local Appeal Body 40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2023-07-21

22 191936 S45 03 TLAB

Toronto (City), Long Branch Neighbourhood Association v. Singh, 2023 ONTLAB 93

DECISION AND ORDER

Issuance Date: May 30, 2023 | Revised June 30, 2023 | Revised July 21, 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): LONG BRANCH NEIGHBOURHOOD ASSOCIATION, CITY OF TORONTO

Applicant(s): KHALMUR BLDG PRODUCTIONS INC.

Property Address: 18 TWENTY FOURTH ST.

COA File No.: 22 116893 WET 03 MV (A0145/22EYK)

TLAB Case File No.: 22 191936 S45 03 TLAB

Hearing Date(s): Tuesday, March 14, 2023

Decision Delivered By: TLAB Panel Member C. Wong

REGISTERED PARTIES AND PARTICIPANTS:

Applicant: Khalmur Bldg Productions Inc.

Appellant: Long Branch Neighbourhood M. Lafortune - City of Toronto

Appellant (CITY): City of Toronto D. Abimbola - City of Toronto

Party (TLAB): J. Gibson

Party (TLAB): Khalmur Bldg Productions Inc.

Party (TLAB): G. Singh

Party (TLAB): Kingsmill Construction

Participant: A. Choles

Participant: C. L. Mercado

INTRODUCTION AND CONTEXT

1The Applicant/ Owner of 18 Twenty Fourth Street (the “subject property”) wishes to demolish the existing dwelling and construct a new detached two-storey dwelling and detached garage in the rear yard (“proposal”).

2The subject property is located north of Lakeshore Boulevard West in the Etobicoke-Lakeshore Ward and is designated Neighbourhoods in the City of Toronto’s Official Plan (“OP”).¹ The subject property is zoned Residential Multiple “RM” (u4) (x2) under the City of Toronto Zoning By-law 569-2013 (“By-law 569-2013”). The RM zone permits detached and semi-detached dwellings, duplexes, triplexes, fourplexes, and apartment buildings, as well as a range of conditional and accessory uses, and is subject to a series of key regulations set out in the Zoning By-law.²

3The Applicant applied to the Etobicoke York panel of the Committee of Adjustment (“Committee”) for the following variances to the Zoning By-law:

1. Section 900.6.10.(2)(D), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (101.35 m²). The new dwelling will have a floor space index of 0.68 times the area of lot 196.45 m²).

2. Section 900.6.10.(2)(i), By-law 569-2013 The minimum required side yard setback is 0.9 m. The new dwelling will be located 0.51 m from the south side lot line.

3. Section 10.5.60.20.(6)(B), By-law 569-2013 The minimum required side yard setback for an ancillary building or structure containing a parking space, where it is on a corner lot and vehicle access is from the street abutting the side lot line, is 6 m. The proposed ancillary building (detached garage) will be located 1.26 m from the south side lot line.

4On July 28, 2022, the Committee authorized the three variances subject to the following three conditions:

1. Submission of a complete application for a permit to injure or remove a City- owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.

2. Submission of a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

3. The proposal shall be constructed substantially in accordance with the Elevation Plans submitted and held on file by the Committee of Adjustment office and date stamped as received on June 27, 2022, to the satisfaction of the Director, Community Planning, Etobicoke York District, as it relates to exterior cladding materials. Any other variances that may appear on these plans but are not listed in the written decision are NOT authorized.

5On August 17, 2022, the Long Branch Neighbourhood Association (“LBNA”) appealed the Committee’s decision, citing the “over-sized physical characteristics of the variances… relative to the undersized lot resulting in significant tree removal” valuable to the urban canopy, which does not conform to the Long Branch Neighbourhood character.

6In addition, the City of Toronto appealed the Committee’s decision citing “the destruction of a healthy by-law (sic) protected tree.”

7A Toronto Local Appeal Body (“TLAB”) Hearing date was scheduled for January 10, 2023.

8Shortly after receiving the City of Toronto’s Notice of Appeal, the Applicant shared the subject property’s site plan with the City of Toronto to demonstrate that the healthy, mature Black Walnut tree which he sought to remove is located on private property (within his ‘as of right’ building envelope), and not on City of Toronto property. In addition, the tree on City-owned property which the Applicant sought to injure was located at the edge of the proposed construction, and would not be significantly harmed by the proposal, especially with protection measures taken, which the Applicant agreed to take.

9With this information, the City of Toronto withdrew its formal opposition to the Applicant’s proposal but maintained its Party status to the proceeding before the TLAB.

10The LBNA, however, continued its appeal, and submitted Witness Statements and Document Disclosure according to TLAB’s requirements and deadlines in preparation for the Hearing.

11The Applicant submitted Disclosure according to the TLAB’s deadline, which confirmed no changes to his proposal as heard by the Committee. The Applicant submitted that there were no reasonable alternatives to removing the healthy mature tree which he sought to remove and confirmed that the City’s Zoning and Urban Forestry Departments would not object to the tree’s removal.

12Ostensibly relying on Rule 16.2, which allows a Party to “rely on and produce … a) any Document previously filed with the Committee of Adjustment, b) any Public Document listed on the TLAB’s List of Public Documents; and c) any Document previously Filed by a Party or Participant”, the Applicant did not submit any further documentation.

13At the TLAB Hearing on January 10, 2023, the Parties agreed to engage in TLAB-led mediation and the Hearing was converted to a mediation.

14The three Parties requested that I preside over a subsequent TLAB Hearing on March 14, 2023, which would proceed either as an expedited settlement hearing on a revised proposal and terms of settlement signed by all three Parties, or as a contested Hearing on the Applicant’s original application. The Parties, however, did not reach a settlement through TLAB-led mediation.

15So, the March 14, 2023 TLAB Hearing proceeded as a contested Hearing on the Applicant’s original proposal, which was approved at Committee.

16At the Hearing, Party Ms. Judy Gibson, witness Party Ms. Christine Mercado, and note-taker Participant Andy Choles attended on behalf of the Appellant LBNA. The Owner/ Applicant, Party Mr. Gaurav Singh, attended with his building designer, Party Mr. Murray Fearn, and construction consultant Party Mr. David Haslam. Ms. Michelle LaFortune attended as the legal representative for the City of Toronto.

THE LEGISLATIVE AND POLICY FRAMEWORK

Provincial Policy – [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec3_smooth), s. 3

17A 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 for the subject area (‘Growth Plan’).

Variance – [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth), s. 45(1)

18In 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 Planning Act (“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.

19TLAB Rules of Practice and Practice and Procedure

Disclosure of Documents

16.2 Parties and Participants shall Serve on all Parties a copy of every Document they intend to rely on or produce in the Hearing, except: a) any Document previously Filed with the Committee of Adjustment; b) any Public Document listed on the TLAB’s List of Public Documents; and, c) any Document previously Filed by a Party or Participant, and File same with the TLAB not later than 60 Days after a Notice of Hearing is Served.

MATTERS AT ISSUE

20I) Did the Applicant meet TLAB’s requirements document disclosure?

21II) Did the Applicant provide sufficient evidence for the TLAB to decide the matter?

22III) Do the Applicant's requested variances meet the Planning Act requirements?

a) Are the requested variances consistent with the Provincial Policy Statement and do they conform to the Growth Plan.

b) On a balance of probabilities, do the variances individually and cumulatively meet the four statutory tests of Planning Act s.45(1)?

SUMMARY OF EVIDENCE

23Exhibit 1 - “As of right” Document: Site Plan, Elevation and Cross Section Drawings

24Exhibit 2 - Streetscape Document: Twenty Fourth Street and Daisy Avenue

25Exhibit 3 - Long Branch Neighbourhood Character Guidelines: Performance Standards Checklist

26Exhibit 4 - Addendum Document: Site Plan, Floor Plans, Elevations and Cross-Section Drawings

27Exhibit 5 – Arborist Report, dated March 7, 2022

28Exhibit 6 – Appellant Disclosure, dated November 21, 2022 – including Resume, Visuals, Index File, and Block Photos

29Exhibit 7 – Witness Statement, dated November 17, 2022

ANALYSIS, REASONS AND FINDINGS

Issue I

30The Applicant provided full disclosure of his proposal to the Committee of Adjustment. The Applicant provided the same proposal and requested variances, with absolutely no changes at the beginning of the TLAB-led mediation on January 10, 2023, and at the contested TLAB Hearing on March 14, 2023.

31According to Rule 16.2 of TLAB’s Rules of Practice and Procedure, Parties shall serve on all Parties a copy of every document the intend to rely on or produce in the Hearing except any Document previously Filed with the Committee of Adjustment.

32At the two TLAB Hearings, the Applicant relied on the same material that had been previously filed with the Committee of Adjustment or with both Parties subsequently, in advance of the first TLAB Hearing. I find that the Applicant satisfied TLAB’s requirements for procedural fairness.

Issue II

33The Appellant questioned the sufficiency and quality of evidence that the Applicant provided, arguing that that Applicant did not provide any expert testimony. The Appellant, however, did not provide any expert testimony either. Neither the Applicant nor the Appellant called a qualified expert planner to provide expert evidence. Although the Party witnesses for both the Appellant or Applicant were not qualified experts, and as such, I did not deem them to be qualified experts, every Party who provided evidence at the Hearing took a sworn oath of truthfulness.

34Further, although the Applicant was without legal representation throughout the TLAB process, Parties may make submissions in a Proceeding according to TLAB Rules of Practice and Procedure, Rule 12.6 (f). In this way, TLAB often receives witness statements from self-represented Parties and their non-expert representatives, none of whom are deemed qualified experts.

35The Applicant, Mr. Gaurav Singh, his consultant, Mr. David Haslam, and his designer, Mr. Murray Fearn all properly elected TLAB Party status and provided sworn oral statements at the contested TLAB Hearing. I accept the evidence of the Applicant’s consultant Mr. David Haslam, as his main representative, and Mr. Murray Fearn, the Applicant’s designer, as his main witness. I also accept the witness evidence that Mr. Gaurav Singh, the Applicant, gave on his own behalf.

Issue III (a)

Provincial Policy Statement and Greater Golden Horseshoe Growth Plan

36Under Section 3(5)(a) of the Planning Act, a decision of the TLAB that affects a planning matter, including variance applications, is to be consistent with the Provincial Policy Statement 2020 ("PPS"). Further, "The PPS provides overall policy directions on matters of provincial interest related to land use and development in Ontario and applies to the Growth Plan of the Greater Golden Horseshoe ("Growth Plan"), except where the Growth Plan or another provincial plan provides otherwise."

PPS

37The proposed new detached dwelling with a detached garage in the rear yard would increase the supply of middle-income housing in the City of Toronto and promote a range and mix of housing within the City. It would also respond to trends in modern building and meet existing market demands. In addition, the replacement dwelling would follow all related building regulations for construction and the protection of adjacent occupants and dwellings, thus facilitating redevelopment which mitigates risks to public health and safety. On balance, the proposed variances are consistent with the policy objectives of the PPS.

Growth Plan of the Greater Golden Horseshoe

38Minor variance applications are matters of municipal jurisdiction and not at a scale that would fall within the parameters of the PPS and The Growth Plan for the Greater Golden Horseshoe. In her testimony for the LBNA, Ms. Mercado submitted that the areas of intensification in Long Branch are along Lakeshore Boulevard, where there are 1203 housing units recently or in the process of being built, along with more student housing, and 60 units requiring rezoning, and not where the Applicant seeks to redevelop. The Applicant, however, is not proposing to build multiple housing units or student housing that requires rezoning, but to redevelop his property by replacing a single unit dwelling with another single unit dwelling.

39The general direction of the higher-level Provincial policies is to encourage intensification at appropriate locations that can take advantage of existing services and infrastructure. The proposal would allow for intensified use of the subject property, and an expanded, modern space for living within an urban area where existing infrastructure and services exist. The proposal would provide new opportunities for living in a well-established neighbourhood which is supplied with infrastructure, services, and amenities to support healthy and active living. On balance, the proposed variances are consistent with the Growth Plan.

Issue III (b)

1. Maintain the General Intent and Purpose of the Official Plan

40The Official Plan contains the following policy on healthy neighbourhoods and development:

"Policy - 2.3.1 Healthy Neighbourhoods

41"[N]eighbourhoods will not stay frozen in time. The Neighbourhoods where we grew up and now raise our children help shape the adults and society we become. Some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites. A cornerstone policy is to ensure that new physical development in our neighbourhoods respects the existing physical character of the area, reinforcing the stability of the neighbourhood."³

421. Neighbourhoods and Apartment Neighbourhoods "are considered to be physically stable areas". Development within Neighbourhoods and Apartment Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes, and open space patterns in these areas.⁴

"Policy - 4.1.5 Development Criteria in Neighbourhoods

[43] "5. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: a) patterns of streets, blocks and lanes, parks, and public building sites; b) prevailing size and configuration of lots; c) prevailing heights, massing, scale, density, and dwelling type of nearby residential properties; d) prevailing building type(s); e) prevailing location, design, and elevations relative to the grade of driveways and garages; f) prevailing setbacks of buildings from the street or streets; g) prevailing patterns of rear and side yard setbacks and landscaped open space; h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and i) conservation of heritage buildings, structures, and landscapes.⁵

44"The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context).⁶

45"Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance. The determination of material consistency for the purposes of this policy will be limited to consideration of the physical characteristics listed in this policy."⁷

46"In determining whether a proposed development in a Neighbourhood is materially consistent with the physical character of nearby properties, only the physical character of properties within the geographic neighbourhood in which the proposed development is to be located will be considered. Any impacts (such as overview, shadowing, traffic generation, etc.) of adjacent, more intensive development in another land use designation, but not merely its presence or physical characteristics, may also be considered when assessing the appropriateness of the proposed development."⁸

i) "Prevailing heights, massing, scale, density, and dwelling type of nearby residential properties"

Variance 1 - Floor Space Index

47In assessing prevailing physical character of the geographic neighbourhood and material consistency with the prevailing physical character, the Official Plan is clear that the immediate context is of greater relevance. Based on the streetscape drawings and data from the immediate context, I find that the massing and scale of the proposal are materially consistent with the prevailing character of the immediate neighbourhood.

48The Applicant testified that the house on the subject property was built 95 years ago, in the 1920’s. Since the 1920’s, the prevailing building footprint of houses has increased throughout the City of Toronto, and most importantly, in the immediate and broader neighbourhood context. The Official Plan Policy 2.3.1 contemplates this change, and allows for enhancements, additions and infill housing occurs on individual sites.

49Although the Applicant’s witness, Mr. Fearn, did not identify a broader and an immediate neighbourhood context in a geographical study area, he provided evidence from the immediate neighbourhood. Specifically, in Exhibit 2, he provided the Twenty Fourth Street streetscape view of adjacent properties to the subject property (No.’s 20, 22, and 24). He also provided the Daisy Avenue streetscape view of the adjacent properties (No. 2, 10, and 16) along the perpendicular street adjacent to the subject property, which is a corner lot. From these two views, the height, massing, and scale of subject property can be compared to the neighbouring houses, as seen from the street.

50Along Daisy Avenue, the proposed dwelling’s height would be materially consistent with the immediate neighbours. The proposed dwelling’s height would be lower than the building at 16 Daisy Avenue, which has a taller peaked roof. The proposed dwelling would also be comparable in height to the building on 2 Daisy Avenue, directly to its west.

51Along Twenty Fourth Street, the proposed dwelling’s height and FSI would also be materially consistent with the immediate neighbouring properties. Although the proposed dwelling would be the highest among the three houses directly north (20, 22, and 24), the requested variance for FSI (0.68 times the lot area) is exactly what was approved by the Committee and already exists at 30 Twenty Fourth Street, within several houses to the north. 30 Twenty Fourth Street received the following four variances in 2019: i) Floor Space Index of 0.68 times the lot area, ii) a north side setback of 0.66 m, iii) a building length variance of 18.96m, and iv) a soffit height variance of 6.87m. (The Applicant is not seeking a building length variance or soffit height variance, as was authorized at 30 Twenty Fourth Street.)

52In addition, Mr. Fearn testified that in the immediate neighbourhood, there are a number of dwellings with larger FSI’s, including 21 Twenty Fourth Street which has an FSI of 1.0 times the lot area.

53The Official Plan (Policy 2.3.1) allows for physical development to occur in neighbourhoods that respects the existing physical character of the neighbourhood, which the Applicant made in modifying the building elements, particularly its facade design.

54According to the Official Plan, and as specifically requested by the LBNA in the Long Branch Neighbourhood Character Guidelines Performance Standards Checklist (Exhibit 3), the Applicant has incorporated design features in his proposal to make the proposal more visually compatible with the built form on Daisy Avenue and Twenty Fourth Street. These features include breaking up the stucco treatment on the exterior of the house, introducing brick veneer along the bottom of the building, and incorporating vertical siding breaks to fit with the existing neighbourhood character.

55In addition, the subject property is in a Residential Multiple Zone, which allows for a variety of uses including Municipal Shelter, Retirement Home, Rooming House, Secondary Suite, and Group Home, in addition to single detached houses. This zoning increases the diversity of built forms (height, mass, scaling) and densities that characterize the neighbourhood.

56In her evidence for the LBNA, Ms. Mercado showed a range of FSI’s in the broader neighbourhood, including duplex-triplex, walk-up apartments, as well as semi-detached (Exhibit 6, page 36). Although Ms. Mercado did not provide the mean and median FSI numbers in the evidence, she did indicate that 95 of the 181 lots (or roughly 53%) in the broader neighbourhood had an FSI of less than or equal to 0.35. She showed that single detached FSI in the neighbourhood ranged from less than 0.35 times the lot area to FSI’s greater than 0.64 times the lot area. Properties where an FSI was greater than 0.64 times the lot area were found on 20 of the 181 properties, or roughly 11% of the properties in the broader neighbourhood. Although FSI’s greater than 0.64 are not predominant, the Applicant’s FSI would be with the existing range of FSI’s found in some number (11%) in the neighbourhood.

57Therefore, I find that the requested FSI is compatible with the prevailing wide range of FSI’s in the neighbourhood and respects and reinforces the neighbourhood’s character.

Variance 1 – Floor Space Index: Mature Tree Removal

58The Official Plan addresses tree canopy coverage in Policy 3.4.1 d). In the TLAB decision for 192 Dunvegan Road, Vice-Chair Ana Bassios states, “The general intent and propose of OP Policy 3.4.1 d) is to increase tree canopy coverage, especially of long-lived and large shade trees and to limit the injury and destruction of trees. Trees are important to the City environment and the Official Plan recognizes this importance. This means that tree preservation policies should be considered during the planning for the development and the design of the proposal, especially in the case of large, mature, and long-lived shade trees. I do not read the intent of the tree preservation policies to be the retention of every mature tree in the neighbourhood, but equally, the policies should not be dismissed as merely aspirational, or meaningless, but should be another factor to be integrated with the other criteria of the Official Plan.”⁹

59“In Official Plan Policy 3.1.2 - Built Form, under subsection (1e), the policy also states that “Development will be located and organized to fit with its exiting and planned context. … by: “preserving existing mature trees wherever possible and incorporating them into the development site.”¹⁰

60In its closing submissions, the LBNA refers to the TLAB decision for 38 Thirty First Street,¹¹ in which Member Stanley Makuch states that tree preservation is a “serious concern” and the general intent and purpose of policy 3.1 of the Official Plan is to “require the design of a dwelling to take into account tree protection and tree canopy preservation when the design is being initially prepared and not after the design has been completed.”¹² Further, in the TLAB decision for 95 James Street to which the LBNA also refers, Member John Tassiopoulos states that “whenever possible… all attempts and consideration be given to ensuring existing mature trees are preserved”.¹³

[61] In this case, the Applicant has worked diligently from the beginning to meet the requirements of the LBNA and the City of Toronto. To protect both the black walnut tree and/or the City’s urban tree canopy, the Applicant has done to the following: a. Prior to submitting to the Committee of Adjustment, the Applicant completed the Long Branch Neighbourhood Character Guidelines Performance Standards Checklist with respect to Trees (section 3.6.1), where he commits to planting four new trees on the property (one on the front, and three in the rear), as well as paying for two trees to be planted by the City elsewhere. b. Prior to appearing at the Committee of Adjustment, the Applicant worked with the City Zoning and Planning department to revise his initial plans. c. The, the Applicant worked with the City further to meet its concerns (regarding building envelope and the tree at the front and middle of the property that would be affected), which led to the City dropping its opposition to his proposal. d. Following the appeal and requests from the LBNA, the Applicant participated in a TLAB-led mediation at the first scheduled TLAB hearing. e. Now, the Applicant has brought his original two-storey house application, which the City of Toronto does not oppose, in which he removes the tree, before TLAB.

62In contrast to the decision for 38 Thirty First Street, the Applicant responded to the LBNA’s request to consider tree protection and canopy preservation when the design was being initially prepared and not after the design has been completed. I do not accept the LBNA’s characterization that the Applicant has not tried to meet its demands or design the dwelling from its inception to ensure tree preservation.

63In contrast to Member Tassiopoulos’ conclusion in the TLAB decision for 95 James Street, I find that the Applicant has designed a proposal that attempts to significantly satisfy both the LBNA and the City. Unfortunately, the City and LBNA were unable to agree to either of the Applicant’s two proposals. The Applicant has attempted to find options, wherever possible, to save the tree, but was unable to satisfy both the City of Toronto and the LBNA.

64Further, Official Plan Policy 2.3.1 states that neighbourhoods will not stay frozen in time, which to the extent trees are part of the character of the neighbourhood, applies to the neighbourhood’s urban tree canopy as well. The same trees are not expected to exist throughout time, and the Applicant has agreed to plant four new trees on the lot itself (one in the front, three in the rear), as well as to pay for two other trees to be planted elsewhere by the City, according to City requirements. The Applicant’s FSI variance, which requires the destruction of one mature healthy tree, meets the Official Plan’s general intent and purpose to allow for gradual change in the physical character of the neighbourhood as one tree may be lost and replaced with others.

65I find that the Applicant’s proposal and requested FSI variance maintain the general intent and purpose of the Official Plan.

Variance 2 – South Side-Yard Setback

66The Applicant’s requested side-yard setback variance (0.51 m) is within the range of what was approved in 2019 and exists directly north at 30 Twenty Fourth Street (0.66m).

67Further, the requested south side-yard variance would not affect the massing and scale of the building and will fit within the neighbourhood. As a corner lot, the subject property has no abutting property to the south. Thus, the impact of the south side-yard setback on abutting properties would be negligible because there are none.

Variance 3 – Side-Yard Setback for Structure Containing a Parking Space

68Although the detached garage would be closer to the side lot line than is permitted, the narrow width of the lot does not permit a detached garage set farther back on the subject property. From the streetscape drawing, the garage being proposed by the Applicant appears modest in size and would be compatible with the density, massing, and scale of the built form in the immediate neighbourhood context.

69I find that the Applicant’s three requested variances meet the general intent and purpose of the Official Plan.

3. Maintain the General Intent and Purpose of the Zoning By-laws

Variance 1 – Floor Space Index

70The general intent of a maximum permitted Floor Space Index is to regulate the massing, scale and density of the proposal and the amount of Gross Floor Area (“GFA”) that can be built on a property, while considering massing and built form, along with other performance standards such as overall building height, building depth, building length, and setbacks.

71In this case, the Applicant carefully considered all the requirements in the Long Branch Neighbourhood Character Guidelines Performance Standards Checklist (Exhibit 3), including building height and massing, finished ground floor height, building face, and building depth. The proposed dwelling does not require any variances in any of the other performance standards, including building height, depth, length, or setback in proximity to other houses. The south side-yard setback encroachment toward the road will have a potential massing impact only to pedestrians and vehicles, but not to an abutting neighbour property. The only other setback required is for the proposed garage, which is discussed below.

72Considering the proposal’s satisfaction of the LBNA’s Character Guidelines for building height, depth, length, and façade, as well as the proposal’s satisfaction of the City of Toronto’s performance standards for height, depth, and length, I find that the proposed FSI satisfies the intent and purpose of the Zoning By-law.

Variance 2 - South Side-Yard Setback

73The general intent and purpose of the side-yard setback is to maintain a suitable area for greenspace, amenities, servicing, and spatial separation between buildings to the side of the building.

74For the subject property, the south side of the lot faces the street. In this case, I do not see any issue of servicing, spatial separation between buildings or significant concerns with respect to outdoor amenities caused by the proposed variance. Thus, I find that the proposed side-yard setback satisfies the intent and purpose of the Zoning By-law.

Variance 3 - Side-Yard Setback for Structure Containing a Parking Space

75The general intent and purpose of the side-yard setback for a structure containing a parking space is to facilitate privacy, prevent overlook, and prevent water runoff on neighbouring properties. The setback requirement for a structure containing a parking space can also serve to allow access to the rear of the property for maintenance and equipment.

76As a corner lot, which would have vehicle access from the street abutting the side lot line, the side-yard setback requirement for the subject property is 6 m. The subject property, however, has a total width of 6.20 m. It would be unrealistic to meet the By-law’s required 6 m side-yard set-back from the south lot line, with a 0.2 m deep garage.

77Since the garage would face a street on its south side, the variance to the south side-yard setback for the garage would not result in any undue adverse impacts of privacy, overlook, and water runoff to neighbouring properties (as there are no abutting neighbours to the south).

78I find that the requested variances maintain the general intent and purpose of the Zoning By-law.

4. Desirable for the Appropriate Development or Use of the Land

79The LBNA expressed serious concern with the severance of lots and construction of buildings too large for the lot. Ms. Mercado provided evidence that the population of Long Branch is growing rapidly and that she is concerned that increases in approved FSI’s in the neighbourhood may facilitate more consent applications and approvals. There is no consent application before the TLAB, and I must use the planning evidence before me to assess the FSI variance for the subject property alone. Although Ms. Mercado raised concerns of precedent and suggested that a trend of increasing FSI could hypothetically affect severance applications in the future, a decision on the FSI variance needs to be considered on its merits for the case at hand.

80On the subject property, the Applicant points out that the root system of the mature tree is affecting the foundation of the current dwelling that was built with a 1920’s footprint. If the Applicant built a new dwelling around the tree, he would not even be able to conform to the building envelope of the existing house from the 1920’s. The mature tree poses an unfortunate risk to new development even with a 1920’s building footprint.

81Further, on the subject property’s only abutting property (to the north), the neighbour’s dwelling extends deeper into its lot than the depth of the black walnut tree on the subject property. Due to the tree’s proximity to the northerly neighbour’s dwelling, the neighbour’s concern about the tree’s root system affecting its own foundation supports the Applicant’s removal of the black walnut tree.

82I find that the Applicant’s requested variances and proposal to remove the black walnut tree in the middle of his property and in proximity to the only abutting neighbour’s dwelling to the north, constitute desirable and appropriate development of the land.

5. Minor

83The test of “minor” is not a test of “no impact”, but rather an impact that rises to the level of being an unacceptable adverse impact of a planning nature. I find that the variances would not create any undue adverse impacts on the streetscape or adjacent neighbours, including considerations of shadow, privacy, and overlook, and are minor in nature.

84The Applicant wishes to construct a 3-bedroom, 2-bathroom dwelling of, to paraphrase his testimony, ‘ordinary’ proportions. Mr. Fearn, his designer, more than once said there are houses in the neighbourhood with larger FSI’s but that he and the Applicant “didn’t want to go that big”. The loss of one tree in the very centre of a modest lot is, with respect to negative planning impacts, minor.

85From a land use planning perspective, the loss of tree canopy and climate change are huge, global problems. Although every tree has an important impact, the positive potential impact on tree canopy and climate change from other more powerful actors dwarfs the important impact of this mature black walnut tree.

86The Applicant’s case can be further distinguished from the TLAB Decision for 38 Thirty First Street, which the LBNA cited in its closing submissions. For the proposal on that property, not only were neighbours opposed, but also the LBNA and the City of Toronto. For the subject property's proposal, the City of Toronto is neutral (taking neither a position for or against), and no neighbours within the 60-metre Committee notification radius are in opposition. Only the Neighbourhood Association itself is in opposition.

87If the Neighbourhood Association first publishes its “Long Branch Neighbourhood Character Guidelines Performance Standards Checklist” to which the Applicant complies before Committee and then takes the position that the Applicant has not sufficiently addressed its building design concerns before the TLAB, it is incumbent on the Association to update its guidelines to create greater clarity and certainty for Applicants. I find that the Applicant has conscientiously attempted to meet the Association’s stated requirements at Committee, and therefore, has considered and met the published demands of the LBNA in its building design. The Applicant has also met and exceeded the threshold of reasonable due diligence in addressing the requirements of the City of Toronto and neighbours with respect to tree canopy protection.

CONCLUSION

88The Applicant met TLAB’s requirements for document disclosure.

89The Applicant provided sufficient evidence for TLAB to decide the matter.

90The Applicant has satisfied the requirements of the Provincial Policy Statement and the Growth Plan. The requested variances, individually and cumulatively, satisfy the four statutory tests of the Planning Act, s.45(1) for variance.

DECISION AND ORDER

91The Appeal of the decision of the Committee of Adjustment is refused. The Decision of the Committee is upheld, and the variances set out in Appendix A are authorized subject to the conditions contained therein.

C. Wong Panel Member

Appendix A

APPROVED VARIANCES

1. Section 900.6.10.(2)(D), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (101.35 m²). The new dwelling will have a floor space index of 0.68 times the area of lot 196.45 m²).

2. Section 900.6.10.(2)(i), By-law 569-2013 The minimum required side yard setback is 0.9 m. The new dwelling will be located 0.51 m from the south side lot line.

3. Section 10.5.60.20.(6)(B), By-law 569-2013 The minimum required side yard setback for an ancillary building or structure containing a parking space, where it is on a corner lot and vehicle access is from the street abutting the side lot line, is 6 m. The proposed ancillary building (detached garage) will be located 1.26 m from the south side lot line.

Subject to the following conditions:

1. Submission of a complete application for a permit to injure or remove a City-owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.

2. Submission of a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

3. The proposal shall be constructed substantially in accordance with the Elevation Plans submitted and held on file by the Committee of Adjustment office and date stamped as received on June 27, 2022, to the satisfaction of the Director, Community Planning, Etobicoke York District, as it relates to exterior cladding materials.

Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.

The proposed dwelling shall be constructed substantially in accordance with:

1. The following plans and drawings, including the materials noted for the main dwelling, as prepared by Khalmur Building Productions Inc., signed by Murray Fearn, dated June 14, 2022, and attached hereto:

2. Site Plan (A1 of 9)

3. East Elevation (A5 of 9)

4. West Elevation (A6 of 9)

5. South Elevation (A7 of 9)

6. North Elevation (A8 of 9)

7. Cross Section (A9 of 9)

8. And, the following plans and drawings, including the materials noted for the garage, as prepared by Khalmur Building Productions Inc., signed by Murray Fearn, dated February 18, 2022, and attached hereto:

9. Floor Plan (G1 of 6)

10. South Elevation (G2 of 6)

11. North Elevation (G3 of 6)

Footnotes

1. 1Toronto Official Plan, Map 15 - Land Use Plan, February 2019.
2. 2City of Toronto Zoning By-law 569-2013, as amended, Version December 21, 2022, Chapter 10 Residential, online: https://www.toronto.ca/zoning/bylaw_amendments/ZBL_NewProvision_Chapter10_80.htm.
3. 3Toronto City, Official Plan, March 2022, Page 2-27.
4. 4Ibid., Page 2-29.
5. 5Ibid., Page 4-4.
6. 6Ibid.
7. 7Ibid., Pages 4-4 to 4-5.
8. 8Ibid., Page 4-5.
9. 9Ana Bassios, Toronto Local Appeal Body Decision and Order, 192 Dunvegan Road, Thursday July 28, 2022, Page 8, 9.
10. 10Ibid., Page 3.
11. 11Stanley Makuch, Toronto Local Appeal Body Decision and Order, 38 Thirty First Street, Friday, April 16, 2021. Page 7, 8.
12. 12Ibid., Page 7, 8.
13. 13John Tassiopoulos, Toronto Local Appeal Body Decision and Order, 95 James Street, Friday, July 29, 2022, Page 15.