Wong (Re), 2024 ONTLAB 182

12

Toronto Local Appeal Body

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

Date:

2024-01-30

23 185593 S45 11 TLAB

Wong (Re), 2024 ONTLAB 182

DECISION AND ORDER

Issuance Date:

January 30, 2024

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

Applicant

A. POWELL

Owner(s):

C. WONG

Property Address:

42 ULSTER ST

COA File No.:

A0286/23TEY

TLAB Case File No.:

23 185593 S45 11 TLAB

Hearing Date(s):

November 27, 2023, Jan 18, 2024

Decision Delivered By:

TLAB Panel Member T. Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

C. WONG

Applicant/Party

POWELL

Party

D. MEDEIROS

Party

M. REDINGER

M. HELFAND

1Mr. Wong wishes to build a second-floor deck at the rear of his house at 42 Ulster Street. To do so he requests the variance set out in Table 1. On July 19, 2023, the Committee of Adjustment refused the variance; Mr. Wong appealed and so this matter came to the TLAB.

Table 1. Variance sought for 42 Ulster St

Required/Permitted

Proposed

1

Encroachment by rear deck into the required rear yard setback.

1.5 m

5.11 m

The Project

2By way of background, Ulster St is an east-west street south of Harbord, between Bathurst and Spadina. Number 42 Ulster is a mid-block townhouse on the north side, kitty corner to Margaret Fairley Park. At the rear is Galvao Lane, part of a well-developed system of laneways in this older part of Toronto. Galvao connects Borden on the west to Brunswick on the east; the houses on this side are generally semis or side to side attached townhouses.

3Mr. Wong states that there was formerly a carport in his rear yard, now removed¹ and he wants a rear deck because he has or will duplex the house. He intends to live in the upper unit himself; the deck will be outdoor amenity space available to his family. The lower unit tenant will still be able to go out into the rear yard, albeit part of it will be shaded by the new deck.

4The deck is a simple structure without walls, attached to the rear wall.

Figure 2. Left: Cross section. Right: Site plan. Both are from the architect with my red circle showing the deck portion of the drawing.

THE LEGISLATIVE AND POLICY FRAMEWORK

5The development must be consistent with the Provincial Policy Statement and conform to the Greater Golden Horseshoe Growth Plan. Both these documents contain a high level of generality, for example the protection of agricultural land and focussing development in settlement areas such as the area with the City of Toronto limits. Although one aspect of these policies is the encouragement of safe communities², and this formed part of Ms. Powell’s opinion, I ultimately agree with the opposing planner’s (Ms. Larocque’s) opinion that “the localized nature of the deck does not trigger issues of consistency with regard to the Provincial Policy Statement”.

6The variance must also comply with s. 45(1) of the Planning Act and applicable case law and meet all of the four tests, 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.

Right to develop

7The obligation is on Mr. Wong to demonstrate to the decision-maker that the tests are met on the balance of probabilities; there is no right to a variance.

EVIDENCE

8I heard from Ms. Powell, planner for Mr. Wong, and Ms. Larocque, planner for the neighbour, Mr. Redinger. I qualified both as able to give opinion evidence in land use planning. Mr. Wong, testified for himself, advising that he was not a planner nor a lawyer. He also supplied all of the photos in this case, and even Mr. Helfand, lawyer for an opposing neighbour, commended him for the thoroughness of his preparation.

9I also visited the property. This does not constitute evidence but enabled me to better appreciate the evidence given by the witnesses.

ISSUES AND ANALYSIS

10I am refusing Mr. Wong’s request because:

• I reject Ms. Powell’s “minimization” argument, described below;

• I reject her argument that the deck adds “eyes on the street” contributes to public safety.

• I find the intent of the Official Plan is that the deck should “fit in” to a prescribed “neighbourhood”. On the evidence I considered Mr. Wong’s neighbourhood too large and his examples of other decks were too sparse and too varied to convince me that this test is met.

Does the Plan Examiner’s 5.11 m variance overstate the true impact?

11Ms. Powell argued that the variance should be considered more like 0.6 m, which “aligns well with the zoning standard and is in keeping with the existing built form”.³

12The variance numbers, 1.5 m (permitted deck encroachment) and 5.11 m (proposed encroachment), may require additional explanation. The by-law requires a rear yard setback of 7.5 m (24.6 ft) for everything, —deck or a rear wall. However, the plan examiner has not flagged this 7.5 m standard as needing a variance⁴. Instead, the examiner states the new deck needs an “encroachment” variance because the deck projects into this protected space. The existing rear wall is already 3.0 m into the 7.5 m setback, so even a deck of zero depth⁵ would need a variance of 3.0 m. A deck of 2.11 m depth adds a further 2.11 m to the wall’s 3.0 m to equal 5.11 m.

13In 1983, V. Resendes, a predecessor in title, built what is now the rear two story addition to which Mr. Wong will attach his deck. Mr. Resendes obtained a rear setback variance from the Toronto Committee of Adjustment. None of the planners, nor Mr. Wong nor I were aware of this decision on Day 1 of the hearing, although the fact that the existing rear yard setback was less than required was known. I asked Mr. Wong to investigate this and in January 2024 he said he had located the Committee of Adjustment record⁶. At that time both planners had completed their evidence in chief and neither side recalled its planner to deal with the new information. No one suggested that the existing rear wall needs to be torn down or is problematic in any way.

14Ms. Powell’s argument is that the starting point should be the existing rear wall and perhaps that its 3.0 m deficiency should be ignored. Thus, her argument is that the number 5.11 m (which is not challenged) should be viewed as “technically” (her word) 0.6 m because the by-law allows for an encroachment of 1.5 m. The difference between a deck of 2.1 m depth and the 1.5 m requirement is 0.6 m.⁷

15I think this approach would be objectionable from a public policy viewpoint, as it is tantamount to a nibbling away at the performance standard. The use of an existing deficiency as the starting point leads to piecemeal planning. The Act requires me to look at the purpose of the 7.5 m; not 7.5 m minus some existing deficiency. The purpose is found in the words of the regulation⁸, which assumes the entire rear yard setback is protected space. An exception is allowed for certain decks:

• they have to be attached; and

• they can be no higher than the first floor above grade.

16In Ms. Laroque’s view, the intent of the zoning by-law is to provide for ample rear yard amenity, with an exception for an attached first floor deck⁹. The bylaw balances the desire of the owner to use their outdoor space against adverse impacts on the neighbours. If the deck is moved to the second storey, I have to consider whether this balance is just as good as the original scheme. Ms. Larocque said this scheme’s intention was to create a consistent and cohesive character of amenity spaces.

17Mr. Wong’s rear yard is already constrained; approximately 4 m x 4.51 m (13. 1 ft x 14.8 ft) and already varies somewhat from the character of other townhouses. His wall sticks out farther than one next door neighbour; it is more or less in line with the other neighbour; but that second neighbour’s rear addition is only one storey (see Figure 2).

18I find that the intent of the zoning by-law (to protect for appropriate rear yard amenity) is not met by the insertion of this oversized deck in the circumstances of this property. Ms. Larocque stated that it would also infringe unreasonably on the privacy of adjacent rear yards. I conclude the variance fails both the zoning intent test and the minor test in that there will be a privacy impact.

Eyes on the street

19“Eyes on the street” is a Jane Jacobs phrase that does exist in the Official Plan. These words do not exist in the PPS (Provincial Policy Statement), but Ms. Powell attempted to make a tie-in by way of allusion to the words “complete community”, sometimes also called “safe and livable” communities.

20She argued that the rear deck would provide eyes on the lane, a need she based on her own observation. She walked the lane; and since it was deserted at the time of her visit, she felt “unsafe”. While this was her sworn evidence, she did not back her comment with, for example, police incident data, newspaper articles, or similar documentary support; so, I do not consider it as anything other than a subjective and personal.

21The phrase “eyes on the street” occurs in in the Official Plan in connection with working from home,¹⁰ and not with respect to the “safe community” concept (in the Provincial Policy Statement). The broader textual context of the latter (Footnote 2), is that safe communities are “sustained by accommodating a range and mix of residential housing types, which to me means that older persons, families who are financially disadvantaged, disabled persons etc. should have a choice of housing because being “isolated” in certain housing types or institutions is not “healthy, livable and safe”. This has nothing to do with whether an occasionally used outdoor platform will or will not make the surrounding area more viewed and therefore safer. I agree with Ms. Larocque that since the rear walls of all Ulster St properties have windows, there are sufficient “eyes on the street” to survey any Galvao lane pedestrians.

Neighbourhood Characteristics

22Whether a proposed development conforms or “fits into” its own existing neighbourhood is the most important test. I am required to evaluate Official Plan compliance by looking into whether the development “generally maintains the intent and purpose of the Official Plan”, particularly s. 4.1.5 of the Plan. This requires that the new development “fit into” the existing neighbourhood character, through the lens of specific parameters, including the prevailing pattern of rear yard setbacks.¹¹

23First the planner is obliged to settle the boundaries of the neighbourhood, consisting of a broader context (larger) and immediate context (smaller). Both planners agreed that the 15 Ulster addresses, formed the immediate context. The planners differed as to the larger context, Ms. Powell using a neighbourhood from Harbord to College, Bathurst to Spadina, an area of about 14 square blocks (Figure 3, right), whereas Ms. Larocque considered the larger and smaller areas to be identical; namely the 15 houses just mentioned (Figure 3, left). Given the flaws in data gathering by Mr. Wong (discussed below), I conclude that Ms. Larocque’s smaller neighbourhood is sufficient and more relevant for testing this provision.

Figure 3. Left: Larocque and Powell small area (immediate context); Wong large area (geographic neighbourhood)

24Ms. Powell relied on Mr. Wong’s data gathering. He made the map in Figure 3, he walked the blocks and took pictures, and he made the videos with a hand-controlled drone. He did not seem to have done all this with the benefit of an experienced planner’s training and detailed understanding of the Official Plan, zoning by-law or other Committee of Adjustment decisions for rear decks. After gathering the data, he then showed it to Ms. Powell at a late stage in the preparation. Her own initial views were made on the basis of a “virtual inspection” over the internet. She concluded her conclusions “mirrored” those of Mr. Wong.

25The evidence before me consists of 72 or so photographs. Perhaps six or seven are second floor rear decks, mostly not on an existing addition. I find they are not true comparables.

Figure 4. Wong photos from his larger area

26Since he was not alive to the difference between decks that were built on posts and those atop an existing addition, the information was disorganized. Even decks on posts show differences. Photo 8 (Figure 4, left) appears to be a corner property, unfenced and in the shadow of larger neighbours. Photo 59 shows two halves of a semi with twin rear decks that obviously have reciprocal overlook and privacy implications. Further, Mr. Wong did not quantify the total number of lots in the geographic area. Thus, I cannot evaluate whether the “hits”, i.e. possible comparables, were a significant minority or more likely, too few to forma a prevailing characteristic. About a third were deeply obscured by trees and Mr. Wong did not take notes to supplement the photographic evidence. There are no notations as to whether the lots were deep or not, so we have no knowledge of their setbacks. For the above reasons I do not accept the 72 photographs.

27I turn to Ms. Laroque’s smaller neighbourhood. It contains 15 properties on Ulster of which 4 addresses have second or third storey rear decks (Figure 5, below).¹² They are:

• 24 Ulster (2 decks, one 2nd and one 3rd storey)

• 26 Ulster (1 deck, 2nd storey)

• 50 and 52 Ulster (1 deck each, 2nd storey)

In addition, Mr. Wong added 103 Borden (1 deck 3rd storey) and 52 Ulster, which has a front deck.

28I said I found that Ms. Larocque’s neighbourhood study area is more appropriate for comparison and on that basis, I exclude the Borden deck (this is the photo at the 10 o’clock position in Figure 5). I also reject Mr. Wong’s front deck example as a comparable to this rear deck proposal. Turing to the six decks that remain, they are concentrated at both ends of the block; none of the interior lots like 42 Ulster have rear decks (see Figure 5).

29I accept Ms. Larocque’s evidence that the back yards on Ulster are already very shallow. In Figure 5, the base map (taken from the zoning by-law) shows north-south streets in the area generally have rear garages while Ulster does not.

Figure 5. Key map with Wong photos inserted. Arrows show where photos were taken. Some photos show two decks on two different properties.

30Ms. Larocque concluded that privacy concerns were lessened for corner or next to corner properties. She also noted that decks atop existing additions are different from the proposal and by their nature have a more limited impact than a stand alone new second floor deck¹³ I accept her planning conclusions.

31The “fitting in” test requires that the variance “respect and reinforce” the prevailing physical characteristics of the geographic neighbourhood, in this case the block of Ulster addresses in Figure 3. ¹⁴ The first word indicates there must be some instances of the proposed development already in existence and in proximity to the proposal. Since there are no second-floor decks on posts nearby, I conclude that the development does not respect the established character.

32The word “reinforce” must show how the development would strengthen the established character, in a way that also is also sensitive to a growing and changing cityscape. We know from Figure 2 that Mr. Wong’s existing rear two-storey addition at already projects 3.0 m into the required setback, and a further second storey platform would exacerbate this. For the interior lots on Ulster, this would be a first. Far from reinforcing this pattern of tighter rear yard amenity spaces, it would create a new design that allows overlook into other rear yards and erode somewhat the privacy the neighbours might enjoy. I conclude the development would therefore not reinforce the physical character and not “fit into” the relevant Ulster St neighbourhood.

33I find that the intent of the Official Plan is not maintained. From the discussion on “minimizing” 5.11 m earlier, I find the intent of the zoning by-law is not maintained. I find the number 5.11 numerically large¹⁵ compared to 1.5 and also creates unacceptable adverse impacts on at least one of the two next door neighbours. Therefore, the variance is not minor. I hesitate about the desirable test because the property is being duplexed and the deck may assist in this. Duplexing would produce more housing, and this is a desirable intensification goal. However, since at least three of the four tests are not met, I find the appeal must be dismissed.

DECISION AND ORDER

34The variance is not authorized.

T. Yao

Panel Member

Footnotes

1. 1He states he was asked to do so by a “planner” in order to be permitted to make an application to the Committee of Adjustment. I infer that some relevant information is missing but do not place any weight on this incident either for or against the variance.
2. 2S. 1.1 of the Provincial Policy Statement, 2020 states: “1.1 Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns 1.1.1 Healthy, liveable and safe communities are sustained by . . . b) accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons), employment (including industrial and commercial), institutional (including places of worship, cemeteries and long-term care homes), recreation, park and open space, and other uses to meet long-term needs. . .
3. 3Par 65
4. 4Because presumably the plan examiner was aware of the 1983 decision discussed in the following paragraph.
5. 5I am using the word depth to describe the measurement from font to back (i.e. in the same direction as one measures a rear yard setback).
6. 6When I read it, I noticed that other variances were granted, but since I asked him to get this information on a “without prejudice basis”, I am not taking note of the other variances. The document was procured on the basis that it might help Mr. Wong answer a requisition on title at some future time; it does not hurt or assist Mr. Wong in this hearing.
7. 760. The Subject Application requires relief from the City’s Zoning By-law to allow for a rear yard encroachment of 2.1 m from a 1.5 m standard (0.6 m or 40% relief), where an existing legal non-complying encroachment of 3 m is present due to the existing townhouse dwelling unit on the Subject Lands. (Powell Witness Statement par 60)
8. 8Chapter 10.5.40.60.(1)(D), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor higher than the first floor of the building above established grade may encroach into the required rear yard setback 1.5 m if it is no closer to a side lot line than 0 m. The zoning planner specified: “The rear second storey deck will encroach 5.11 m into the required rear yard setback and will be located 0.11 m from the side (east) lot line and 0.6 m from the side (west) lot line.”
9. 943. The general intent and purpose of the Zoning By-laws with respect to the location and position of amenity spaces, as is the key variance issue in this case, is to promote a consistent and cohesive character which, as it relates to platform decks and rear yard setbacks, helps ensure that there are no adverse impacts related to privacy and the enjoyment of neighboring yards.. . . 47. The proposed development would result in direct overlook into abutting backyards. Rear yard space in this geographic area is reserved for private amenity use and the owners’ enjoyment. Overlook into these private spaces inhibits one’s ability to use this personal space as intended. (Larocque Witness Statement)
10. 104.1 NEIGHBOURHOODS Toronto’s hundreds of Neighbourhoods contain a full range of residential uses within lower scale buildings, as well as parks, schools, local institutions and small-scale stores and shops serving the needs of area residents. Lower scale residential buildings in Toronto’s Neighbourhoods consist of detached houses, semi-detached houses, duplexes, triplexes and various forms of townhouses as well as interspersed walk-up apartments with or without elevators that are four storeys or less.. . .More recently, as the economy has changed, thousands of Torontonians have begun working from their homes, creating valuable economic activity, enhancing safety by providing “eyes on the street”, and reducing trips to work. These home occupations are provided for in Neighbourhoods across the City.
11. 114.1.5. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:.. .g) prevailing patterns of rear and side yard setbacks and landscaped open space;...
12. 12I include a photo of 100 ½ Borden but this is not in the Ulster St neighbourhood.
13. 1338. When rear-yard decks are present in the immediate context, they are primarily located at-grade or inset at the third storey, which significantly limits overlook onto other properties. Furthermore, third-storey decks prevent the obstruction of sunlight into backyards as they are built on top of the second storey of the existing dwelling. They also reduce privacy concerns related to views into rear-facing windows of adjacent properties. 39. There are only two instances of second-storey decks in the prevailing immediate context (see exhibits 8 and 9). Both have physical characteristics different than the subject site. Unlike the subject site, which is situated at the centre of the block of 15 townhomes on the north side of Ulster Street, the existing second-storey decks are on properties located at the far ends the block, one adjacent to Borden Street, and one adjacent to Brunswick Avenue. These second-storey decks each overlook into only one neighbouring yard and the street adjacent rather than two neighbouring properties. In addition to this, neither of these second storey decks are stand-alone extensions, both are constructed on top of the ground floor of the dwelling. Furthermore, both cases overlook onto covered rear extensions of the neighbouring dwellings, preventing overlook into private amenity spaces. Finally, these properties have setbacks consistent with their neighbours, which prevents enhanced feelings of enclosure in adjacent backyards. (Larocque Witness Statement, par 38-39)
14. 14. A key objective of this Plan is that new development respect and reinforce the general physical patterns in a Neighbourhood. (Development Criteria, Official Plan, p 4-3)
15. 15[12] A minor variance is, according to the definition of “minor” given in the Concise Oxford Dictionary, one that is “lesser or comparatively small in size or importance”. This definition is similar to what is given in many other authoritative dictionaries and is also how the word, in my experience, is used in common parlance. It follows that a variance can be more than a minor variance for two reasons, namely, that it is too large to be considered minor or that it is too important to be considered minor. The likely impact of a variance is often considered to be the only factor which determines whether or not it qualifies as minor but, in my view, such an approach incorrectly overlooks the first factor, size. Impact is an important factor but it is not the only factor. Vincent v. Degasperis, 2005 CanLII 24263 (ON SCDC), par 12