Morozov (Re), 2024 ONTLAB 183

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date:

2024-02-01

22 134415 S45 12 TLAB

Morozov (Re), 2024 ONTLAB 183

Decision Issuance Date:

February 1, 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")

Appellant(s):

M. Morozov

Applicant(s):

Property Address:

218 Vesta Dr.

Committee of Adjustment File Number(s):

21 248503 STE 12 MV (A0026/22TEY)

TLAB Case File Number(s):

22 134415 S45 12 TLAB

Hearing Date(s):

Thursday, September 1, 2022 Wednesday, January 24, 2024

Decision Delivered By:

TLAB Panel Member Kanter

Registered Parties:

Applicant

Appellant

M. Morozov

Appellant’s Legal Rep.

M. Mazierski

Participant

J. Otis

INTRODUCTION AND CONTEXT

1218 Vesta Drive (the “Site”) has a complex history.

2In 2017, the previous owner of the Site received approval for minor variances to construct a home with greater height and floor area than permitted by the applicable by-laws.

3The current owner of the Site later completed construction of a new home with a rear concrete platform projection that is higher and deeper than permitted (the “Construction”).

4On November 18, 2021, the Appellant obtained a Zoning Notice describing three (3) variances from Zoning By-law 569-2013 (the “ZBL”) to permit the Construction to be legalized and maintained:

Platform height of 1.79m (1.2m permitted) and projection of 4.83m (2.5m permitted);
Building length; and
Building depth.

(the “Initial Zoning Notice”)

5On March 30, 2022, the Committee of Adjustment issued a Decision refusing to approve the variances described in the Initial Zoning Notice by a vote of three to two (the “C of A Refusal”).

6Following the C of A Refusal, counsel for the Applicant “out of an abundance of caution” requested Toronto Building to examine the stairway at back of the rear deck and the effect of the longer rear deck on the rear yard and north side yard and issue an updated zoning notice.

7On July 26, 2022, Toronto Building issued a further Zoning Notice describing four (4) variances to permit the Construction to be maintained:

Platform height of 1.79m and projection of 6.10m;
Building length;
Building depth; and
Encroachment of 0.99m into rear yard setback and 1.22m to north side lot line (1.79m required)

(the “Revised Zoning Notice”)

8On July 26, 2022, the Applicant filed an Expert Witness Statement and Document Disclosure referencing the 4 variances described in the Revised Zoning Notice.

9On April 28, 2023, the Toronto Local Appeal Body (the “TLAB”) refused the 4 variances described in the Revised Zoning Notice (the “Initial TLAB Decision”). The Initial TLA Decision stated in part that:

“the proposal does not improve the existing single detached dwelling in a manner that would fit in with the development pattern of the neighbourhood, due to the precedent it would set for constructing ground-floor decks which have roofs and ‘privacy walls’ that are full additions to the building and do not support neighbourhood privacy and overlook considerations.” [Par. 49]

10On May 26, 2023, counsel for the Applicant requested that the TLAB review the Initial TLAB Decision, on the basis that it gave weight to the fact that the variances were applied for after construction (the “Review Request”).

11On September 21, 2023, the TLAB released a Review Request Decision ordering a new hearing, on the basis that the weight the Initial TLAB Decision gave to the fact that the variances were applied for after construction constituted a breach of natural justice.

12The TLAB issued a new Notice of Hearing and set a date to hear the matter on January 24, 2024.

13On November 23, 2023, the Applicant filed a revised Expert Witness Statement (the “Updated WS”) and Appellant Disclosure (the “Updated Disclosure”) with the TLAB, requesting a new hearing based on the Initial Zoning Notice.

14On January 24, 2024, I chaired the new Hearing. The Hearing was attended by Mr. Martin Mazierski, counsel for the Appellant and Mr. David Igelman, planning witness for the Appellant. It was also attended by Ms. Judith Otis, the Participant, who owns and resides at 33 Elderwood Drive, located immediately north of the Site.

THE LEGISLATIVE AND POLICY FRAMEWORK

15Provincial Interest - S. 2

A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

16Provincial 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 (Growth Plan) for the subject area.

17Variance – 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 Planning 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

18I introduced the Hearing based on my understanding that the Applicant would provide evidence with respect to the four (4) variances described in the Revised Zoning Notice which was the basis of the Initial TLAB Decision

19Mr. Mazierski responded that the Applicant was now appealing the C of A Refusal of the three (3) variances set out in the Initial Zoning Notice. He stated that the Applicant understood that Toronto Building would not consider the stairway as part of the projection of the rear deck, nor the rear deck as an encroachment on the rear year setback or reduction of the north side yard setback.

20Mr. Mazierski further stated that the Applicant would bear the risk of any other interpretation by Toronto Building. Consequently, I allowed the Applicant to proceed with an appeal of the 3 variances resulting in the C of A Refusal.

21Mr. Mazierski called D. Igelman, and asked that I qualify him as an expert witness in the field of land use planning, which I did on the basis of his education, experience and acceptance as an expert in previous cases., I entered the Updated WS as Exhibit 1, and the Updated Disclosure as Exhibit 2.

22Mr. Igelman described the Construction, consisting of a concrete surface above a stone basement extension, corner pillars, a covering, and a privacy wall along a portion of the north wall, as shown in Exhibit 2, Photo 8, Page 884. He said that only the height and projection of the rear platform, not the pillars, covering or massing, were the subject of the first variance.

23Mr. Igelman stated that the height variance resulted largely from the slope downward from the front to the rear of the Site. If the Site were level, no variance for the platform depth would be required.

24Mr. Igelman noted there was a fence approximately 2m in height along the north lot line. The fence obscures the platform floor from the Participant’s house located at 33 Elderwood north of the Site.

25Mr. Igelman further noted that the distance from the rear projection to the north lot line was 1.2m and the distance from the rear projection to the closest part of the dwelling to the north owned by Ms. Otis was 2.75m. He estimated that the distance from the rear projection to the part of the Otis’ house directly north of the projection was approximately 3.06 m.

26Mr. Igelman described the neighbourhood bounded by Dewbourne Ave. to the north, Spadina Road to the east, Burton Road to the south and Bathurst Street to the west containing 552 lots.

27He referred to a photo map showing approximately eighty (80) drone photos of houses in the neighbourhood with rear decks, found in Exhibit 2 at page 966.

28Mr. Igelman referred to photos of a number of specific decks, which he described as similar to, or larger than the Construction, including but not limited to 48 Elderwood Ave., 2 Ava Road, 8 Burton, 48 Elderwood Drive, 5 and 7 Ava Rd, 8 Burton Rd, 106 Glenayr Rd, 11 Glenayr Rd., 107 Vesta, 11 Vesta, 114 Vesta and 116 Vesta, which he described as similar to, or larger than the Construction.

29Mr. Igelman described the deck at 212 Vesta Drive as much higher than the Construction at the Site, and the 3rd floor balcony at 214 Vesta Drive as having a greater impact on privacy and overlook than the construction at the Site.

30Mr. Igelman noted that there were similar decks in the immediate context (212 and 214 Vesta) and others adjacent to the immediate context.

31Mr. Igelman opined that many of the photos of large decks were not included in a Table of Approved Variances found In Ex. 2 at page 366, since they were built prior to the period of 10-15 years included in the Table, or were approved under Zoning By-law 438-86, which did not have the same restrictions on platform length.

32Mr. Igelman also referred to specific decks listed in the Table of Approved Variances (Ex. 1 p. 219).

33In response to a question from me, Mr. Igelman agreed that the rear decks at 43 Burton Road and 104 Richview Ave. appeared to be farther from neighbouring lots and houses than the subject construction.

34Mr. Igelman stated that a house could have been constructed “as-of-right” with a rear deck farther back than the Construction, as illustrated in Exhibit 2 at pages 1040-1041.

35Mr. Igelman opined that the Construction is consistent with the PPS and conforms to the Growth Plan.

36He was of the opinion that the Construction meets the general intent and purpose of the official plan, since it respects and reinforces the existing physical character of the neighbourhood, which contains a substantial number of similar projections.

37In his opinion, the Construction meets the general intent of the zoning by-law, which is to protect privacy and overlook, due to the fence and privacy wall.

38In his opinion, It is desirable since it provides opportunities for living throughout an entire lifetime in a manner that is appropriate for the Site, and is minor since the variances do not create any undue adverse impacts on the adjacent neighbours.

39Ms. Otis did not file a participant witness statement, as required by Rule 16.7 of TLAB’s Rules of Practice and Procedure. However, I allowed her to ask clarifying questions and make an oral statement to the TLAB, to enable me to effectively and completely adjudicate this matter, as an exception to the Rules permitted by Rule 2.12.

40Ms. Otis asked why the Applicant did not provide more precise dimensions concerning the distance between the Applicant’s Construction and her house. Mr. Igelman replied that he didn’t seek permission to enter the Participant’s property to take such measurements.

41Ms. Otis stated that no neighbours had a deck similar to that constructed by the Applicant.

42She stated that the privacy wall was an intrusive eyesore that takes away natural lighting from her property. She also pointed out that the privacy wall did not cover the entire north wall of the projection, and she could see what was happening on the rear deck.

43Ms. Otis stated that she saw smoke and vapour coming out of an exhaust vent located in the north privacy wall which impacted the enjoyment of her property.

44Mr. Igelman confirmed that there was some sort of exhaust vent roughly in the middle of the privacy wall, but was not familiar with its exact location or purpose.

45Ms. Otis described a hard surface play area along the southern edge of her property that was just north of the Construction and that the play area was negatively impacted by the Construction.

46Mr. Mazierski cross examined Ms. Otis with respect to potential improvements to the privacy wall. Ms. Otis replied that she would not suggest improvements without speaking to an expert.

ISSUES AND ANALYSIS

47This appeal raises the following issues:

(a) Does the Construction respect and reinforce the existing physical character of this neighbourhood?

(b) Does the Construction further the general intent and purpose of the zoning by-law?

48Mr. Igelman provided a great deal of visual and written evidence concerning houses with similar length and depth in the neighbourhood.

49Mr. Igelman also provided evidence with respect to similar rear projections in the neighbourhood. A substantial number of rear projections exhibited similar or greater characteristics with respect to height and depth.

50A significant number of rear projections in the neighbourhood exhibited similar hard surfaces and coverings.

51Mr. Mazierski submitted that the Official Plan requires variances only for certain defined planning characteristics, such as heights, massing and scale, to be prevailing, defined as “the most frequently occurring” in the neighbourhood. The Construction did not seek variances for such characteristics. Platform height and projected length need not be found in the majority of properties in a neighbourhood, as long as they are found in substantial numbers and have a significant presence in the immediate context.

52I find that this type of Construction is found in substantial numbers, both in the broader neighbourhood and immediate context. The visual evidence provided by Mr. Igleman effectively contradicts the Participant’s statement that no neighbours had a deck similar to that constructed by the Applicant.

53Consequently, I find that the height and length of the rear projection respect and reinforce the existing physical character of this neighbourhood

54Mr. Igelman opined that the main purpose of the ZBL provisions concerning “Decks, Platforms and Amenities” is to ensure that unacceptable, adverse privacy and overlook impacts are mitigated. I accept Mr. Igelman’s opinion that privacy and overlook impacts are important factors.

55However, the Applicant did not provide clear evidence that privacy and overlook issues were adequately addressed in this case.

56The Applicant agreed, at least for the period from July 2022 (the Revised Zoning Notice) to November 2023 (the Updated Disclosure), that the Construction would result in a reduced side yard setback to the Participant’s house. However, the Applicant had some difficulty explaining, in pictures or in words, the precise distance between the Construction and the Participant’s house. The Applicant did not explain why the privacy wall was incomplete, or why an exhaust outlet was located in the- privacy wall above the boundary fence.

57Mr. Igelman participated in the initial TLAB Hearing and the Review Request. He knew of Ms. Otis’ opposition, including her concerns about smells and odours from an exhaust vent which I have concluded is located above the top of the boundary fence. His statement that “the variances do not create any undue adverse impacts . . . on the adjacent neighbours” [Ex. 1 par. 260] is not supported by the evidence in this case.

58However, the Participant’s evidence concerning the impact of the Construction on privacy for her, and her family was also unclear. As noted, she did not file a witness statement. She could not state clearly, at the third Hearing concerning this Construction, what measures, if any, would mitigate her concerns.

59The onus is on the Applicant to provide evidence that all of the tests for a variance have been met. However, where privacy and overlook are relevant issues, it would also be helpful to the TLAB for the Participant to state clearly what measures, if any, might alleviate her concerns.

60I realize that this rear yard projection has now been the subject of three hearings – one at the C of A, and two at the TLAB. The issues have been narrowed by this Hearing to the impact of the Construction on the privacy of the Participant, and whether it causes undue adverse impact of a planning nature to the Participant.

61I have decided that the matter could be better resolved by a further Hearing Day focussing only on these two issues. Consequently, I will issue an Interim Decision and Order rather than a final Decision at this time.

INTERIM DECISION AND ORDER

62I order the Applicant and Participant to each propose to TLAB measures to mitigate the impact of the Construction on the Participant’s house at 33 Elderwood, no later than March 4, 2024.

63I order TLAB staff to schedule a second Hearing Day to be determined by the TLAB not less than five weeks or more than eight weeks following the release of this Interim Decision and issue a Notice of Hearing in that regard.

64I strongly encourage the Applicant’s counsel and the Participant to communicate with each other, both prior to providing their respective proposed mitigation measures, and prior to the further TLAB Hearing in this matter.

R. Kanter

Panel Member