Mamo (Re), 2024 ONTLAB 177

Toronto Local Appeal Body

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

Date: January 17, 2024

23 186714 S53 20 TLAB, 23 186716 S45 20 TLAB 23 186721 S45 20 TLAB, 23 186722 S53 20 TLAB 23 186723 S53 20 TLAB, 23 186724 S45 20 TLAB 23 186727 S45 20 TLAB

Mamo (Re), 2024 ONTLAB 177

DECISION AND ORDER

Issuance Date: January 17, 2024

Re-Issuance Dates: January 26, 2024, January 19, 2024

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): D. MAMO

Applicant(s): CANTAM GROUP LTD

Property Address: 1 & 21 LOCHLEVEN DR

COA File No.: 22 145385 ESC 20 CO (B0016/22SC) 22 145393 ESC 20 MV (A0105/22SC) 22 145394 ESC 20 MV (A0106/22SC) 22 145407 ESC 20 CO (B0014/22SC) 22 145405 ESC 20 MV (A0103/22SC) 22 145406 ESC 20 MV (A0104/22SC) 22 145431 ESC 20 CO (B0015/22SC)

TLAB Case File No.: 23 186714 S53 20 TLAB, 23 186716 S45 20 TLAB 23 186721 S45 20 TLAB, 23 186722 S53 20 TLAB 23 186723 S53 20 TLAB, 23 186724 S45 20 TLAB 23 186727 S45 20 TLAB

Hearing Date(s): January 8, 2024

Deadline Date for Closing Submissions/Undertakings: December 27, 2023

Decision Delivered By: TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

D. Mamo

M. Mazierski

Applicant

Cantam Group LTD

Party (TLAB)

City of Toronto

J. Dexter

Participant

K. Patience

INTRODUCTION AND CONTEXT

1The Applicant/Appellant applied for three consents to create two new lots, in addition to two existing lots, resulting in four (4) lots on the site now municipally known as 1 & 21 Lochleven Drive (the "Site"). The Applicant/Appellant also applied for minor variances to construct a two-storey detached dwelling on each of the 4 newly created lots (the "C of A Application").

2On July 26, 2023, the Toronto Committee of Adjustment refused the applications for consents and minor variances (the "C of A Refusals").

3On August 8, 2023, the Applicant/Appellant appealed the C of A Refusals to the Toronto Local Appeal Body (the "TLAB Appeal").

4The Applicant/Appellant served and filed an Expert Witness Statement with the TLAB. The City served and filed a Notice of Representation, but did not file a witness statement. Mr. Kenneth Patience filed a Participant Witness Statement setting out his objections to the TLAB Appeal.

5On January 8, 2024, I presided over the TLAB Appeal.

THE LEGISLATIVE AND POLICY FRAMEWORK

6Provincial Policy – S. 3

A decision of the Toronto Local Appeal Body ('TLAB') must be consistent with the 2020 Provincial Policy Statement ('PPS') and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area ('Growth Plan').

7Consent – S. 53

TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. 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,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2 of the Planning Act;

(b) whether the proposed subdivision is premature or in the public interest;

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

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

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

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).

8Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

• maintain the general intent and purpose of the Official Plan;

• maintain the general intent and purpose of the Zoning By-laws;

• are desirable for the appropriate development or use of the land; and

• are minor.

SUMMARY OF EVIDENCE

9Mr. M. Mazierski, counsel for the Applicant/Appellant, called Mr. Jonathan Benczkowski, and asked that he be qualified as an expert witness. After reviewing his education and experience, I qualified Mr. Benczkowski as an expert in the field of land use planning. I entered his Expert Witness Statement as Exhibit 1 and his Document Book as Exhibit 2.

10Mr. Benczkowski described the two existing lots. 1 Lochleven Drive is occupied by a one-storey brick building, with an integral garage set back 6.18m from Lochleven located on the southern portion of the property. The lot is triangular, with no rear yard lot line.

21 Lochleven Drive is occupied by a backsplit two-storey brick dwelling, with parking located in an integral garage set back 9.15m from Lochleven on the southern portion of its lot.

11The land use planner described the lots to be created by the consents, from north to south, as shown in a draft plan shown in Ex. 1 at Par. 22, and attached as Schedule "A":

PART (s)

FRONTAGE (m)

LOT AREA (m2)

1

8.5

431.74

2 & 3¹

8.5

430.87

4

10.3

415.48

5

24.99

418.0

12Mr. Benczkowski described a number of changes from the C of A Application resulting in revised plans before the TLAB (the "Amended Plans"), attached as Schedule "B".

Part 1

• The side yard setback to the south lot line has been increased to 0.93 m

• The request for a front yard setback variance has been removed

• The overall height and main wall height variances have been removed

Parts 2 & 3

• The side yard setback to the north has been increased to 0.93m

• The front yard setback has been increased to 10m

• The overall height and main wall height variances have been removed

Part 4

• The side yard setback variance has been eliminated

• The front yard setback has been increased to 9.5m

• The overall height and main wall height variances have been removed

• The platform encroachment has been removed

Part 5

• The front yard setback has been increased to 8.5m

• The overall height and main wall height variances have been removed

• The platform and canopy encroachments have been removed.

13Mr. Benczkowski stated that the Applicant/Appellant met the conditions proposed by the City Engineering and Construction Services ("ECS"). He also stated that his client wanted to replace rather than transplant a small tree, resulting in revised conditions imposed by Urban Forestry.

14The land use planner opined that the Amended Application is consistent with the Provincial Policy Statement and conforms with the policies of the Growth Plan.

15Mr. Benczkowski identified a neighbourhood study area consisting of 550 lots, and an "immediate context" based on lots in the same block as the Site. According to him, both the broader study area and the immediate context contain a mix of physical types of dwellings, including townhouses on narrow lots as well as detached homes.

16The land use planner referred to a Lot Area Map (Ex. 1 Page 83) showing that there are a significant number of lots in the neighbourhood that are as small or smaller in area than those proposed. He also referred to a Lot Frontage Map (Ex. 1 Page 82) showing a significant number of lots that had frontages less than 13.5m, the minimum required by Zoning By-law 569-2013 (the "ZBL").

17Mr. Benczkowski referred to a condominium development in townhouse form on small narrow lots adjacent to a roadway immediately south of Part 5 on the Site. He also referred to a significant number of smaller lots with narrower frontages located close to main streets surrounding the neighbourhood, and noted that that the Site was located close to Kingston Road (Ex. 1 Page 82).

18The planner referred to a photo study which showed a number of lots in the neighbourhood with side yard setbacks of approximately 1 metre or less (Ex. 1 Page 124-125), as well as a chart summarizing recent Committee of Adjustment decisions allowing similar reductions to side yard setbacks (Ex. 1 Page 118).

19The witness explained that the Amended Plans would result in an increase in front yard setbacks from the southernmost lot closer to Kingston Road (Part 5) to the northernmost lot closer to the interior of the neighbourhood (Part 1). Furthermore, each of the setbacks in the Amended Application would be greater than the setbacks of the existing houses.

20Mr. Benczkowski opined that the Amended Plans meet the general intent and purpose of the Official Plan, since they are materially consistent with the prevailing physical character of properties both in the immediate context of the site and the broader neighbourhood, and reinforce the physical character of the existing neighbourhood.

21He stated that the Amended Plans would: result in appropriate separation between the four proposed houses; facilitate access to each of their rear yards; achieve an appropriate lot size within the context of existing development surrounding the Site; and maintain a consistent street frontage. Consequently, he opined that the Amended Plans would maintain the general intent and purpose of the ZBL.

22Mr. Benczkowski noted that the Amended Plans were now compliant with respect to height. They sought approval for two-storey detached dwellings with integral garages, which is a common built form in the neighbourhood. City Planning did not object to the C of A Application or the Amended Plans. The proposed consents and variances caused no undue adverse planning impact. He opined that the variances were minor in mature.

23The planner advised the TLAB that each of the four proposed dwellings will have four usable bedrooms, resulting in functional and contemporary living spaces. Each dwelling will also contain an accessory unit in the basement, potentially providing up to eight (8) dwelling units in existing settlement areas. The increase in the number of housing units from two to as many as eight is consistent with provincial and municipal policies to increase the number and type of housing units. Consequently, the Amended Application is desirable for the appropriate use of the land.

24Mr. Benczkowski reviewed the criteria for a consent under Section 51(24) of the Planning Act. He opined that matters of provincial interest, such as a range of housing options, have been addressed; the proposal conforms to the Official Plan; the land is suitable for division to accommodate two additional lots without the need for a plan of subdivision; the dimensions and shapes of the proposed lots are appropriate; and municipal services and school sites are available.

25Counsel for the City confirmed that no objection to the Amended Plans. He confirmed that the Applicant/Appellant met the conditions proposed by ECS; and could meet the conditions proposed by Urban Forestry.

26Subsequently, Participant K. Patience made an oral statement. He said that he gathered a petition signed by 43 neighbours opposing the proposal. He elaborated on three of the issues set out in his Participant Statement, which I entered as Exhibit 3.

27Mr. Patience and the neighbours who signed the petition highlighted issues with the Applicant, who had owned the Site for many years. They specifically expressed concern that the current tenants who occupied 1 Lochleven had been loud and disruptive for the past five years.

28Mr. Patience asserted that the proposal would block the view from his townhouse located south of 1 Lochleven, and also block the views of other neighbours who lived in townhouses east of the Site.

29Thirdly, Mr. Patience was concerned about how garbage trucks and fire trucks could access the proposed houses.

30I advised Mr. Patience that the question of tenant misbehaviour is beyond my jurisdiction, which is limited to the planning matters set out in the relevant provisions of the Planning Act set out above.

31I allowed Mr. Mazierski to re-examine Mr. Benczkowski with respect to the impact of the Amended Plans on views and servicing. The planner explained that the impact on views would be reduced since the Site is lower than the townhouses to the south. There is a condominium roadway which results in considerable distance between the Site and the townhouse where Mr. Patience lives. There is also a line of coniferous vegetation between the Site and other neighbours to the east of the Site. He further explained that garbage and fire access to the proposed houses would occur from the street in the conventional fashion.

ISSUES AND ANALYSIS

32I have reviewed the changes from the C of A Application to the Plans, which reduce the number and extent of the requested variances from the ZBL. I find that the amendments to the plans are minor, and consequently no further notice is required, pursuant to Section 45 (18.1.1) of the Planning Act.

33The major issue in this case is whether the reductions in lot frontage and lot area meet the tests in the Planning Act for consents and minor variances. I have concluded that the reduced frontages and lot areas meet all relevant tests.

34I heard uncontradicted evidence from Mr. Benczkowski, qualified as an expert in land use planning, on these issues. I accept his evidence that the reduced lot frontages and areas meet the statutory tests for both the consents and minor variances. He showed that reduced lot frontages and areas are found in both the broader neighbourhood and the immediate context.

35I was aided in reaching this conclusion by my review of two TLAB cases submitted by counsel for the Applicant/Appellant. Both 98 Bogart Ave.² and 116 Bogart Ave.³ involve applications to sever lots resulting in significantly reduced lot frontages (7.62m instead of 15 m required by the ZBL) to permit the construction of two storey detached homes. In both cases, the Appellant relied in part on the existence of reduced lot frontages resulting from townhouses constructed as part of larger condominium projects.

36In 98 Bogart Ave., my colleague G. Swinken approved the consent and related variances, stating that:

"the townhouse development is indeed novel [in the context of a neighbourhood zoned RD for single detached homes] but it will exist and impact the character of the street."⁴

37In 116 Bogart, my colleague S. Makuch also approved the consent and related variances based in part on the existence of townhouses which were part of a condominium project:

"[116 Bogart] is located where some change is occurring and has occurred with townhouses having been approved on a neighbouring block".⁵

38I note that the reduction in the lot frontage in the Subject case from that permitted by the ZBL is 5m (13.5m required minus 8.5m proposed), less than the reduction of 7.38m (15m required minus 7.62m proposed) in the Bogart cases. I also note that townhouses with frontages of less than 8.5m are located closer to the Subject Site than the townhouses were located to the Bogart sites.

39My decision is also based on the qualitative aspects of the Amended Plans, particularly the reduction in height which results in houses of a similar character to others in the neighbourhood.

40I agree with the land use planner that the Amended Plans will not result in any undue adverse impact on views or privacy in a developed urban residential neighbourhood.

41Immediately following the Hearing, I received an email from Mr. Patience through TLAB staff, not copied to the Parties, asking whether the four proposed homes would be facing east or west. I understand that: Mr. Patience is a Participant rather than a Party in this appeal; he is not represented by counsel; and he is not familiar with the Tribunal’s rules and procedure. Nevertheless, any questions from Mr. Patience should have been raised during the Hearing, not after it concludes.

42Therefore, pursuant to Rule 2.6 of the TLAB’s Rules of Practice and Procedure, I will not respond to or comment on his post-hearing question, nor have I considered it in my Decision.

CONCLUSION

43In conclusion, the appeals are allowed. I grant provisional consents, subject to the Tribunal’s Standard Consent Conditions. I also approve the minor variances in the Amended Application set out below, subject to the conditions set out below.

DECISION AND ORDER

44I have considered the provisions of Section 51(24) of the Planning Act and am satisfied that a plan of subdivision is not necessary. I therefore consent to the transaction as shown on the draft plan prepared by AK & M Surveying Ltd. completed December 4, 2022, with the TLAB and attached as Schedule "A", on the condition that before a Certificate of Official is issued, as required by Section 53(42) of the Planning Act, the applicant is to fulfill the following conditions to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment:

(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 as outlined in Condition 6.

(2) Municipal numbers for the subject lots, blocks, parts, or otherwise 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 TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.

45I will allow the following minor variances, subject to conditions listed herein:

PART 1 - TLAB File #: 23186724S4520 TLAB

1. Exception RD 397.(D), By-law 569-2013 The minimum required setback from a side lot line is 1.2 m. The proposed setback from a side lot line (south) is 0.93 m.

2. Chapter 10.20.30.20.(1)(A), By-law 569-2013 The minimum required lot frontage is 13.5 m. The proposed lot frontage is 8.49 m.

3. Chapter 10.20.30.10.(1)(A), By-law 569-2013 The minimum required lot area is 464 m2. The proposed lot area is 431.60 m2.

PART 2/3 - TLAB File #: 23186727S4520TLAB

1. Exception RD 397.(D), By-law 569-2013 The minimum required setback from a side lot line is 1.2 m. The proposed setback from a side lot line (south) is 0.93 m.

2. Chapter 10.20.30.20.(1)(A), By-law 569-2013 The minimum required lot frontage is 13.5 m. The proposed lot frontage is 8.49 m.

3. Chapter 10.20.30.10.(1)(A), By-law 569-2013 The minimum required lot area is 464 m2 The proposed lot area is 430.7 m2

4. Chapter 10.5.40.70.(1), By-law 569-2013 The minimum required front yard setback is 10.44 m. The proposed front yard setback is 10.0 m.

PART 4 - TLAB File #: 23186716S4520TLAB

1. Chapter 10.20.30.20.(1)(A), By-law 569-2013 The minimum required lot frontage is 13.5 m. The proposed lot frontage is 10.29 m.

2. Chapter 10.20.30.10.(1)(A), By-law 569-2013 The minimum required lot area is 464 m2. The proposed lot area is 415.30 m2.

3. Chapter 10.5.40.70.(1), By-law 569-2013 The minimum required front yard setback is 10.44 m. The proposed front yard setback is 9.5 m.

PART 5 - TLAB File #: 23186721S4520TLAB

1. Chapter 10.20.30.10.(1)(A), By-law 569-2013 The minimum required lot area is 464 m2. The proposed lot area is 418 m2.

2. Chapter 10.5.40.70.(1), By-law 569-2013 The minimum required front yard setback is 10.44 m. The proposed front yard setback is 8.5 m.

46My permission for the variances set out above is subject to the following conditions:

(1) The building shall be constructed substantially in accordance with the site plan and elevation drawings prepared by Cantam Group Ltd, dated November 24, 2023, and attached as Schedule "B".

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

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

(4) 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.

R. Kanter

Panel Member

Footnotes

1. 1Parts 2 & 3 (the 2nd lot from the north) consists of a part transferred from the existing northern lot numbered 21 Lochleven, and a part transferred from the existing southern lot numbered 1 Lochleven
2. 2TLAB Case File No.: 22 174452 S53 18 TLAB February 7, 2023
3. 32018 CarswellOnt 8688 May 23, 2018
4. 4Supra footnote 2 at Paragraph 70
5. 5Supra, footnote 3 at Par. 27