Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File Nos.: 23 176535 S53 19 TLAB, 23 176536 S45 19 TLAB, 23 176537 S45 19 TLAB
DECISION AND ORDER
Issuance Date: February 6, 2024 Revision Date: October 16, 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): H. GHAFOORI
Applicant(s): LEMCAD CONSULTANTS
Property Address: 688 COSBURN AVE
COA File No.: 23 108739 STE 19 CO (B0012/23TEY), 23 108743 STE 19 MV (A0102/23TEY), 23 108744 STE 19 MV (A0101/23TEY)
TLAB Case File No.: 23 176535 S53 19 TLAB, 23 176536 S45 19 TLAB, 23 176537 S45 19 TLAB
Hearing Date(s): December 4, 2023 & January 17, 2024
Decision Delivered By: TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
People Type First Initial. Last Name Representative
APPLICANT LEMCAD CONSULTANTS
APPELLANT H. GHAFOORI A. STEWART
PARTICIPANT D. CALDWELL
PARTICIPANT C. PERRICONE
INTRODUCTION AND CONTEXT
1This is an appeal of the Toronto and East York Panel of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for consent to sever 688 Cosburn Avenue (subject property) and associated variances.
2The purpose of the application is to obtain consent to sever the subject property into two (20 undersized lots and to permit the construction of a new, three-storey semi-detached dwelling, each one-half of which will contain two dwelling units, with rear first, second, and third storey terraces with a front yard parking space on each newly created lot, and a rear basement walkout on the retained lot (Applications).
3The subject property is located on the north side of Cosburn Avenue, within the first block of Coxwell Avenue, and one property east of East York Collegiate Institute, in the former City of East York. It is designated ‘Neighbourhoods’ in the City Official Plan (OP) and zoned RD (f9.0; a280; d0.45) under Zoning By-law 569-2013.
4The Owner of the subject property, Habibullah Ghafoori, appealed the Committee of Adjustment’s refusal of the Applications and therefore the matter comes before the Toronto Local Appeal Body (TLAB).
5The hearing of this Appeal matter occurred by Electronic Hearing on December 4, 2023. In attendance electronically via the City’s WebEx meeting platform were: Amber Stewart, the Owner’s Legal Representative; Franco Romano, Action Planning Consultants, and the Owner’s expert planning witness; and Daniel Caldwell and Carmelo Perricone, immediate neighbours, who elected Participant status in the Proceeding.
6At the December 4th Hearing, Ms. Stewart, in her opening statement, put forward on behalf of the Applicant, two proposed development options for the TLAB’s consideration (Options).
7She advised that the Options, which included revisions to the original applications before the COA, reflected the Applicant’s attempts to address City Staff’s and neighbour’s comments regarding the proposed Applications, and were offered as alternative development options for the TLAB’s consideration.
8I advised Ms. Stewart that as the presiding Panel Member, it was not my intention to choose between the alternative Options presented to the TLAB and advised that I would not do so. Instead, I directed that the Applicant finalize the option that he wished to consider and present that proposal to the Tribunal at a rescheduled Hearing date.
9Additionally, I asked that Mr. Romano file a Supplemental Document Disclosure with context mapping for lot frontage and lot areas for his Neighborhood Study Area (NSA) for comparison using a colour gradient for better clarity and to make it easier for me to review.
10Finally, I also requested that Mr. Romano provide additional information via a distinct subset of data for the neighbourhoods both north and south of Cosburn Avenue to be included with the Supplemental Document Disclosure.
11I advised that the supplemental documents were be filed with the TLAB by no later than December 29, 2023.
12Given my directions to the Applicant’s representatives cited above, I adjourned the Hearing and subsequently issued an Order, dated December 8, 2023, to this effect.
13In that Order, I directed TLAB staff to canvas the Parties and Participants for a ‘return-to’ date to continue the Proceeding to be scheduled for no later than January 31, 2024.
14As a result, the TLAB scheduled Hearing Day 2 in this matter for January 17, 2024. On that date, the same Persons who attended the December 4th Hearing also attended ‘virtually’ by way of the WebEx meeting platform.
15I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation for the hearing of their evidence.
16At the commencement of the Hearing, Ms. Stewart provided an opening statement to the Tribunal and requested that the following Exhibits be entered into the record:
- Exhibit 1 – Mr. Romano’s Expert Witness Statement, dated October 23, 2023;
- Exhibit 2 – Mr. Romano’s Supplemental Document Disclosure, dated December 29, 2023;
- Exhibit 3 - Site Plan and Elevation Drawings, dated September 18, 2023; and
- Exhibit 4 – Proposed Conditions of Approval & List of Variances, dated January 15, 2024.
17## THE CONSENT REQUESTED
To obtain consent to sever the subject property into two residential lots.
Conveyed – Part 2, Draft R-Plan
688B Cosburn Avenue
The conveyed lands will have a frontage of 5.64 m from Cosburn Avenue and will have a lot area of 164.6 m². A new three-storey semi-detached dwelling will be constructed on the undersized lot.
Retained – Part 1, Draft R-Plan
688A Cosburn Avenue
The retained lands will have a frontage of 5.64 m from Cosburn Avenue and will have a lot area of 164.7 m². A new three-storey semi-detached dwelling will be constructed on the undersized lot.
18## THE VARIANCES REQUESTED
Part 1 (A)
- Chapter 10.20.30.10(1)(A), By-law 569-2013
The required minimum lot area is 280m².
The proposed lot area is 156.6m².
- Chapter 10.20.30.20(1)(A), By-law 569-2013
The required minimum lot frontage is 9.0m.
The proposed lot frontage is 5.64m.
- Chapter 10.20.40.10(4), By-law 569-2013
The permitted maximum main wall height is 7.5m.
The proposed main wall height is 8.53m.
- Chapter 10.20.40.50(3), By-law 569-2013
There may be no more than a total of 2 platforms for each dwelling unit, and no more than one on each of the front and rear sides of the dwelling unit.
There are 2 platforms at the rear main wall of unit 1, and 3 platforms total for unit 1.
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, with a lot frontage less than 6.0 metres, or a townhouse dwelling unit less than 6.0 metres wide, the front yard, excluding a permitted driveway, must be landscaping: 29.33m2.
The landscaping area of the proposed front yard not covered by a permitted driveway is 14.8m2 (50%).
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, a minimum of 75% of the required front yard landscaping must be soft landscaping: 21.97m2.
The proposed front yard soft landscaping area is 47% (13.87m2).
- Chapter 10.5.80.10.(3), By-law 569-2013
A parking space may not be located in a front yard or a side yard abutting a street.
The proposed parking space is located in a front yard.
Part 2 (B)
- Chapter 10.20.30.10(1)(A), By-law 569-2013
The required minimum lot area is 280m².
The proposed lot area is 156.5m².
- Chapter 10.20.30.20(1)(A), By-law 569-2013
The required minimum lot frontage is 9.0m.
The proposed lot frontage is 5.64m.
- Chapter 10.20.30.40.(1), By-law 569-2013
The permitted maximum lot coverage is 35% (54.77m2) of the lot area.
The proposed lot coverage is 36% (55.68m2) of the lot area.
- Chapter 10.20.40.10(4), By-law 569-2013
The permitted maximum main wall height is 7.5m.
The proposed main wall height is 8.53m.
- Chapter 10.20.40.50(3), By-law 569-2013
There may be no more than a total of 2 platforms for each dwelling unit, and no more than one on each of the front and rear sides of the dwelling unit.
There are 2 platforms at the rear main wall of unit 1, and 3 platforms total for unit 1.
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, with a lot frontage less than 6.0 metres, or a townhouse dwelling unit less than 6.0 metres wide, the front yard, excluding a permitted driveway, must be landscaping: 29.33m2.
The landscaping area of the proposed front yard not covered by a permitted driveway is 14.8m2 (50%).
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, a minimum of 75% of the required front yard landscaping must be soft landscaping: 21.97m2.
The proposed front yard soft landscaping area is 47% (13.87m2).
- Chapter 10.5.80.10.(3), By-law 569-2013
A parking space may not be located in a front yard or a side yard abutting a street.
The proposed parking space is located in a front yard.
THE LEGISLATIVE AND POLICY FRAMEWORK
19Provincial 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.
20Provincial 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’).
21Consent – 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).
22Variance – 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
23A summary of the evidence is presented here to provide some context for the following sections of this Decision and Order. All of the evidence and testimony in this Proceeding have been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined in the Issues and Analysis section below.
24I qualified Mr. Romano to provide expert opinion evidence in the area of land use planning.
25He described the subject property as a rectangular-shaped lot with a lot frontage of 11.28 m (37 ft.), located on the north side of Cosburn Avenue, an arterial road that generally runs east-west and that is classified as a Major Street and Enhanced Surface Transit Network by the City’s OP.
26The proposal is to sever the subject property into two undersized lots each with a frontage of 5.64 m and a lot area of 156.60 m2 (1,685.7 ft2)1 and construct a new three-storey attached dwelling on each of the newly created lots.
27Mr. Romano noted that although the Applicant proposes to construct what are considered semi-detached dwellings, each attached structure mirrors the other and, therefore, the development will appear as a single building form.
28Therefore, for discussion purposes, I may refer to the proposal as ‘the building’ in this Decision.
29The building design incorporates the following built form elements:
- A front yard setback of 5.59 m (post-conveyance), which is By-law compliant and adequate to accommodate a front yard parking pad with permeable pavers, entrely within the property in the front yard;
- A rear yard setback of 10.39 m, which exceeds the By-law requirement of 7.5 m;
- Modest dwelling length of 11.79 m, which is substantially less than the permitted 17.0 m;
- A partial third floor with a dwelling length of only 8.53 m (including dormers);
- Rear third floor terraces built within the dwelling envelope (i.e., not projecting beyond the rear wall of the proposed dwellings);
- Overall height of 8.84 m (lower than the permitted 10.0 m) and a side main wall height of 8.53 m for the length of the third floor only;
- Lot coverage of 36% (post-conveyance);
- One 1-bedroom unit and one 3-bedroom unit in each of the proposed attached dwellings;
- Semi-detached duplex building type;
- Lots of 5.64 m frontage and approximately 156.5 m2 in area (post-conveyance).
- One front yard parking space is proposed for each of the semi-detached dwellings.
30Mr. Romano noted that the applications were initially filed with the COA on January 31, 2023, and the City’s circulation of the applications generated comments from the following departments:
i. Community Planning – Staff’s June 27, 2023, Report raised no concerns with the consent or requested variances. Staff acknowledged that the Applicant had revised the proposal to provide additional front yard soft landscaping and to construct the parking pads from permeable pavers and recommended corresponding conditions of approval.
ii. Engineering and Construction Services – A March 20, 2023, memorandum raised no concerns, identifying a 1.44 m road widening requirement and municipal addressing information.
iii. Urban Forestry Services – A June 21, 2023, memorandum raised no concerns, requesting a payment in lieu of planting one street tree on the City road allowance abutting each of the two proposed lots.
31The proposal has been revised since the COA and was further modified after submission of the appeals to the TLAB. The revised proposal now incorporates the road widening requirements, reductions in built form and dwelling size, including an approximately 2.0m reduction in the length of the building from 13.72m to 11.79m, and a reduction in the gross floor area of about 15m2 (Revised Proposal).
32In addition, the Applicant eliminated the 2nd floor platform, and a privacy screen was added to the 3rd floor platform as mitigation measures.
33The Revised Proposal also incorporated interior changes to the propose multiplex dwellings, with a rental unit in the basement.
34Mr. Romano described the characteristics of the neighbourhood, delineated as a Broader, Immediate, and Immediately Adjacent Context within a Neighbourhood Study Area (NSA), summarized as follows:
- The subject property and surrounding neighbourhood are developed with residential, institutional, and mixed uses largely in a low-rise nature in which several building types exist including detached, attached, multiple unit and mixed residential-commercial.
- The neighbourhood contains compact to modest sized lots ranging from 5.49 m to 12.52 m in the Immediate Context and 4.65 to 32.6 m in the Broader Context.
- The Immediate and Immediately Adjacent Contexts are substantially different as compared to the Broader Context with lots in close proximity to the subject property along Cosburn Avenue developed with mixed building and dwelling types with more than one prevailing character.
- Prevailing lot sizes include lots that are smaller than the base zoning lot frontage and lot area numbers, with smaller lots well represented along Cosburn Avenue in proximity to the subject property.
- Development activity has included severances for detached and attached residential properties along Cosburn Avenue, both within the NSA and beyond.
- Within this neighbourhood, development exists and continues to occur, in a manner that is at variance with base zoning by-law standards, forming the existing physical character.
35He referred to photographs of individual properties in the neighbourhood to show the following:
- The proposed front wall alignment will fit with the staggered front yard setbacks along Cosburn Avenue while accommodating the City’s requested road widening;
- The Revised Proposal will provide a tapered building height where the location and massing are designed to largely fit within the subject property’s existing and planned context which includes compatible building heights and intensity of development.
- The Revised Proposal will maintain the low-rise and low-scale neighbourhood character.
- The abutting property to the west of the subject site, 686 Cosburn Avenue, being developed with a single detached dwelling, was the subject of a severance application in 2017, which was refused by the TLAB on appeal. Mr. Romano asserted that that application preceded changes to the OP and Zoning By-law which encourage the development of multiplexes, and the development criteria for that proposal were different, representing more intense detached residential characteristics.
36Mr. Romano addressed the OP ‘Neighbourhoods’ land use designation and policies and asserted that the development criteria in Policy 4.1.5 do not apply to the Revised Proposal.
37Instead, he opined that the appropriate criteria to be considered are to be found in the policies of Site and Area Specific 826 (SASP 826) (Official Plan Amendment 6492 (OPA 649)), which are the applicable Official Plan policies that permit multiplexes and specifically exempt these proposals from Policy 4.1.5.
38He, then, outlined how the Applications achieve the criteria in SASP 826, explaining that the Revised Proposal maintains the low-rise built form of the neighbourhood, includes large units with multiple bedrooms, does not result in the removal of healthy trees, and minimizes privacy impacts between adjacent dwellings.
Participant Caldwell
39Mr. Caldwell’s objections to the proposal are summarized below:
- The proposal is “overly intrusive,” and the severance of the existing property will result in two undersized lots that will not “fit” the area context.
- Allowing the owner to sever the property would set a “terrible precedent” thereby altering the characteristics of the neighbourhood and making it the “new norm.”
- The proposed semi-detached dwellings will present a solid block frontage that fills the lot, eliminating the driveway between the two houses that is a typical feature of the neighbourhood.
- The north side of Cosburn Avenue has no signs of “intensification,” and the proposal would not result in a “more affordable form of housing.”
- The proposed third storey and a platform at the rear will result in impacts of shadow, privacy and overlook to his property.
- The owners of the abutting property at 686 Cosburn Avenue were unsuccessful in getting approval to sever that lot and build a detached three-storey home on each of the newly created lots.
40On cross-examination, Ms. Stewart highlighted examples of existing three-storey multiplex buildings along Cosburn Avenue and within the NSA which Mr. Caldwell acknowledged.
Participant Perricone
41Mr. Perricone’s objections to the proposal mirrored many of those expressed by Mr. Caldwell. His main issues are summarized as follows:
- He and his family were attracted to this East York area because of the “charm of the neighbourhood with its post-war bungalows with front yards, spacious setbacks and symmetrical 33-foot-wide lots.”
- Granting consent to sever the subject property would result in undersized lots that would create a “dangerous precedent” that has never been allowed in the neighbourhood.
- The Appellant is requesting a front yard parking pad for each proposed lot which is in contradiction to the policies in the OP.
- The proposed three-storey semi-detached structures will “tower” over abutting properties creating unacceptable impacts on shadowing, privacy, and overlook.
- The proposal will not result in affordable housing, does not represent good planning, and if approved will destabilize the neighbourhood.
ISSUES AND ANALYSIS
PROVINCIAL POLICY
42I accept Mr. Romano’s evidence that the Revised Proposal is consistent with the 2020 Provincial Policy Statement and conforms to the 2020 Growth Plan for the Greater Golden Horseshoe.
43Although minor 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, the general direction of the higher-level Provincial policies is to encourage intensification at appropriate locations that can take advantage of existing services and infrastructure.
CONSENT TO SEVER
44I am satisfied that a plan of subdivision is not required pursuant to s. 53(1) of the Planning Act as the proposal is a division of the existing legal lot in a long-established area. No adaptation or construction of public infrastructure is required.
45Of the criteria set out in s. 51(24) of the Planning Act, I consider criteria (c) and (f) to warrant further discussion in this Decision and Order.
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; and
(f) the dimensions and shapes of the proposed lots.
46As the Official Plan contains policy about the dimensions of lots, I have folded consideration of both criteria c) and f) above into the discussion of the Official Plan.
THE OFFICIAL PLAN
47Mr. Romano provided an overview of relevant Official Plan policies. OP Policy 3.1.2.1 provides a helpful overarching statement of the intent of the Official Plan with respect to built form: Development will be located and organized to fit with its existing and planned context.
48OP Policy 4.1.5 provides direction for assessing the “fit” of development within a neighbourhood. The policy contains within it development criteria that are intended to give greater specificity regarding expectations for development in Neighbourhoods.
49It was Mr. Romano’s evidence that Chapter Four of the Official Plan provides the ‘Neighbourhoods’ land use designation and policies, specifically the development criteria in Policy 4.1.5. However, he opined that, instead, the SASP 826 policies and development criteria are applicable in reviewing the revised proposal before the TLAB.
50I agree with Mr. Romano that in this instance, SASP 826 policies and development criteria are applicable. These OP policies relate to multiplexes and recognize that multiplexes are a form of housing that the City is looking to facilitate within its neighbourhoods.
51In the City of Toronto, multiplexes are defined as a low-rise form of housing with two, three, or four units in a single building.3
52Official Plan Amendment 649 (OPA 649) contains policies that permit multiplexes throughout the lands designated as ‘Neighbourhoods’ and exempts multiplexes from certain policies contained in Section 4.1 – Neighbourhoods of the Official Plan.
53Policy 4.1.1 and SASP 826 specifically describe multiplexes in ‘Neighbourhoods’.
- Multiplexes in Neighbourhoods
Low-rise residential buildings that contain more than one unit make more efficient use of land, and provide more ground-related housing choices for all residents at all stages of their lives, supporting the vitality of the city’s Neighbourhoods. Multiplexes – residential buildings containing up to four units – can deliver additional dwellings while integrating with the general physical scale and development patterns of the neighbourhood. To accommodate the modest intensification needed to house more people, regulations for multiplexes may differ from single-unit buildings to ensure efficient and livable homes for Toronto’s residents.4
54The Official Plan SASP 826 addresses the matters that are to be reviewed to ensure that the development of multiplexes will be compatible with the neighbourhood’s existing physical character.
i. will maintain the low-rise built form of each geographic neighbourhood, including in particular:
a) Patterns of streets, blocks and lanes, parks and public building sites. The existing street pattern is a mixture of grid and non-grid public streets.
b) Prevailing size and configuration of lots.
c) Prevailing setbacks of buildings from the street or streets.
d) Maximizing contiguous soft landscaping within front and rear yard setbacks that is supportive of maintaining and expanding the urban tree canopy.
e) Conserving heritage properties and heritage conservation districts; and
f) Special landscape or built-form features of the geographic neighbourhood.
ii. Is encouraged to include large units, and should include at least one unit that contains multiple bedrooms.
iii. Will provide entrances that are safely accessible from the street, which may be located at the front, side or rear of the building.
iv. Should not result in the injury or removal of a healthy tree protected under Municipal Code Chapters 608, 658, and 813 on the subject property and adjacent properties.
v. Is encouraged to salvage and/or reuse existing building materials and/or foundations.
vi. Is encouraged to provide green roof areas, solar panels, and low carbon building materials, and to ensure any parking spaces are designed to permit future electric vehicle supply equipment.
vii. Will minimize privacy impact between adjacent dwelling units.
viii. Will integrate with existing grades at the property line. and
ix. Is encouraged to expand the urban tree canopy through the planting of a new tree on a lot with a multiplex.
55The majority of the development criteria listed above relate to the built form compatibility of the proposal and are pertinent to the request for variances that follow the request for consent to sever.
56Of the criteria listed, I consider criterion b) Prevailing size and configuration of lots, to be the criterion most relevant to the creation of the new lots (the consent).
57To meet the criteria set out in the Planning Act for the severance to be approved, regard must be had as to whether the Revised Proposal conforms to the Official Plan, and specifically to the dimensions and shapes of the proposed lots.
58Conformity to the Official Plan for the consent to sever would include demonstrating that the general intent and purpose of the official Plan has been met for the prevailing size and configuration of lots.
Official Plan SASP 826 b) Prevailing Size and Configuration of Lots
59To establish character, the “geographic neighbourhood” must be delineated; the Official Plan does not direct how to delineate but allows considerable flexibility.
60The setting of boundaries for the relevant neighbourhood is an important step for ascertaining Official Plan conformity. The Official Plan also directs that the severances and variances be compared to an “immediate” and “broader” neighbourhood, and the proposed lot frontages and lot areas should comply with the characteristics in both (my emphasis).
61Mr. Romano identified the geographic Neighbourhood Study Area (NSA), the Immediate Context and the Immediately Adjacent Blocks in accordance with the directions of the Official Plan.
62It was Mr. Romano’s evidence that the surrounding lands are characterized as low-rise residential. The existing physical character is represented by an assortment of numeric site standards, many of which are at variance with the Zoning By-law provisions.
63He identified the differences within his NSA, including the policy considerations and physical context characteristics of Cosburn Avenue, which is identified as a ‘Major Street’ in the Official Plan.
64Due to these characteristics, the Official Plan recognizes the potential for more intense development along ‘Major Streets’, such as Cosburn Avenue, which may not be replicated in the interior of the neighbourhood.
65I accept Mr. Romano’s evidence that Cosburn Avenue exhibits various building types and built form features that are found on both the north and the south side of that street, including in the immediate adjacent contexts.
66A summary table of lot size characteristics was included in Exhibit 2 (page 2). It illustrated that within the neighbourhood, the smallest lots range from 4.65 m in frontage and 113.15 m2 in area, to 32.6 m in frontage and 781.7 m2 in area. The former data range is smaller than what is being proposed.
67According to Mr. Romano, there is no one prevailing lot size. The data also illustrate that lots that are indistinguishable in size from the proposed lots exist on Cosburn Avenue, both in the Immediate and Immediate Adjacent contexts.
68I accept Mr. Romano’s evidence that while lot frontages of the length proposed in these Applications are not “prevailing,” they are represented, nevertheless, in sufficient numbers that the development should not be precluded from consideration.
69Additionally, the Official Plan does not require new development to be “the same as” the prevailing lot size, but rather, it “respects and reinforces” the prevailing lot size.
70I concur with Mr. Romano’s evidence that the proposed lot frontages and lot areas of the two severed lots will respect and reinforce the prevailing size and configuration of lots in the geographic neighbourhood and the Immediate Context.
71I also agree that if granted, the consent to sever will not result in a development that will destabilize the neighbourhood.
72With respect to the requirements of s. 51(24) of the Planning Act, I, therefore, find that the requested consent to sever has had due regard for criterion (f) the dimensions and shapes of the proposed lots.
The Four Statutory Tests
THE OFFICIAL PLAN
73Mr. Romano provided detailed evidence on the various Official Plan policy considerations most applicable to the Revised Proposal. Housing policies in Section 3.2 of the Official Plan state that “a full range of housing, in terms of form, tenure and affordability, across the City and within neighbourhoods, will be provided and maintained to meet the current and future needs of residents.”
74A key objective of the Official Plan is that new development be sensitive, gradual, and “fit” the existing physical character to respect and reinforce the general physical patterns in Neighbourhoods.
75While OP Policy 4.1.5 specifies that proposed development within Neighbourhoods will be “materially consistent” with the prevailing physical character of properties in both the broader and immediate contexts, OPA 320 (approved by the (then) LPAT in 2018) modified the ‘Neighbourhoods’ policies to require development proposals to respect and reinforce the existing physical character of each geographic neighbourhood, including prevailing heights, massing, scale, densities and dwelling types of nearby properties.
76It can be inferred directly from the Official Plan policies that if a neighbourhood contains a mix of building forms, then the means by which to define “prevailing” would be approached differently: “While prevailing will mean most frequently occurring for the purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters.”
77Council adopted OPA 649 in May 2023, which was structured as Site and Area Specific Policy 826. This SASP permits ‘multiplexes’ in the ‘Neighbourhoods’ designation as a way to add more new low-rise housing at a scale similar to the existing context.5
78Mr. Romano outlined how the criteria in SASP 826 are achieved, including by maintaining the low-rise built form in the neighbourhood which provides an appropriate building shape, scale and massing that fits within the existing and planned context in a reasonable, compatible, and respectful manner.
79In the Revised Proposal, building street setbacks are staggered and aligned in a numerically modulating manner which represents a prevailing setback of buildings from the street in the immediate neighbourhood.
80The Revised Proposal has front and rear setbacks which are within those permitted by the Zoning By-law and proposed dwellings have setbacks to adjacent dwelling units which minimize privacy impacts. It also has a rear yard setback that exceeds the minimum standard and a building length that is tapered and shorter than permitted by the by-law.
81The Revised Proposal incorporates large units, some containing three bedrooms, and dwelling entrances that are accessible and visible and face the public street.
82I agree with Mr. Romano that the physical characteristics of the Revised Proposal fit within the pattern of development in the broader neighbourhood, and on Cosburn Avenue itself, which is recognized within the OP as having the potential for more intense development.
83I also agree with Mr. Romano that the overall intent of SASP 826 is to provide a policy basis that establishes that multiplexes as a permitted building type in Neighbourhoods.
84I find that the semi-detached building type proposed will not offend the existing physical character and that the massing of the two buildings, which will present as one large building along Cosburn Avenue, will result in a building form typology that will not destabilize the neighbourhood character.
85I find, therefore, that the proposed consent to sever and the variances requested meet the first test, that the general intent and purpose of the Official Plan have been maintained.
THE ZONING BY-LAW
86In the context of my findings regarding the dimensions and shapes of the proposed lots under the first test above, I agree with the evidence of Mr. Romano that the proposed lot frontages and lot areas meet the general intent and purpose of the Zoning By-law.
87The Revised Proposal achieves lot sizes that are represented in the geographic neighbourhood, are appropriately sized in the context, and will contribute to the existing lot fabric in close proximity to the subject property in an appropriate manner.
Lot Coverage
88The Applicant requires a variance for lot coverage for Part 2 only, to permit a lot coverage of 36% (55.68m2) whereas the maximum permitted is 35% (54.7m2).
89The general intent and purpose of the lot coverage provision is to ensure that the building occupies a reasonable amount of the property to accommodate open space for setbacks, servicing and amenities.
90It was Mr. Romano’s evidence that the Revised Proposal will maintain a suitable amount of open space for setbacks and amenity space and provide for a building area that is context-suitable in this instance.
91I agree with Mr. Romano and find that the proposed lot coverage, which represents a slight and indistinguishable increase in coverage of 1.95 m2, is appropriate in the context.
Main Wall Height
92The Revised Proposal includes a main wall height of 8.53m whereas the maximum permitted in the Zoning By-law is 7.5m. The first floor and overall height of the semi-detached dwellings are zoning compliant and require no variances.
93It was Mr. Romano’s evidence that the general intent and purpose of the wall height performance standard is to minimize the extent to which walls may rise to create inappropriate upper levels. I would add that at least part of this standard is also to regulate massing.
94The proposed 8.53m wall height relates to a building length that measures 7.72m and is oriented towards the front and central portions of the building footprint. The rear of the building is tapered and has a wall height of 6.09m, which is less than the Zoning By-law maximum height standard.
95The front of the building incorporates a dormer and sloped roof component which begins at a wall height measurement of 6.09m. Again, this height is less than the Zoning By-law maximum standard of 7.5m.
96I find that the Revised Proposal incorporates appropriate main wall heights which ensure that the development will maintain a moderately low-rise building profile whereby dwelling portions above are minimized.
97I find that the Revised Proposed wall heights meet the general intent and purpose of the Zoning By-law.
Platforms
98The general intent and purpose of the platform Zoning By-law standards is to ensure that the platforms maintain a subordinate attachment that appropriately minimizes privacy and amenity impacts.
99The variances being sought are to permit three (3) platforms, one being a front porch, and two on the rear wall, including a ground-floor deck and a third-storey balcony. The Zoning by-law permits a maximum of two (2) platforms per dwelling, one on each wall.
100Mr. Romano asserted that the ‘at-grade’ rear deck is centrally located along the rear wall and it, and the front porch are subordinate to the dwelling and will not result in any unacceptable adverse impacts.
101The rear third-floor balcony is accessible only from a secondary bedroom and not intended to be used as a space for entertaining, is subordinate to the dwelling, and incorporates a privacy screen to mitigate impacts of overlook and privacy.
102In this context, I find that the proposed three platforms maintain the general intent.
103and purpose of the Zoning By-law provisions.
Front Yard Landscaping and Soft Landscaping
104The general intent and purpose of the front yard landscaping standards are in place to ensure that there is suitable space to accommodate landscaping plantings and to facilitate on-site percolation of front yard drainage.
105The Revised Proposal includes 13.87m2 (50%) of front yard landscaping whereas the Zoning By-law requires a minimum of 29.33m2 for lots with a frontage less than 6m wide.
106The Applicant also proposes 13.87m2 (47%) of soft landscaping in the front yard landscaped open space, whereas a minimum of 21.97m2 (75%) is required.
107I agree that the proposed front yard landscaping follows the existing streetscape pattern for compact front yard landscaped areas and that it achieves a larger landscaped front yard than that which is currently provided on the subject property. The development of the subject property will also not result in any injury to, or removal of the existing tree canopy.
108The proposed development can accommodate additional tree plantings on site to augment the City boulevard tree planting space, and the Applicant is proposing a recommended condition of approval of cash-in-lieu to the City for the planting of a new tree in the front yard of each of the two parts.
109I find the proposed landscaping area appropriate and meets the general intent and purpose of the Zoning By-law.
Parking Space
110The variance requested is to permit front yard parking whereas the Zoning By-law requires the parking space to be behind the main front wall of the proposed dwelling.
111Mr. Romano’s evidence was that the general intent and purpose of the Zoning By-law standard is to provide a context-suitable, functional, and accessible parking space.
112The revised proposal includes a parking solution that is directly accessible from the local street on private property. The accommodated parking fits with the front yard parking that currently exists in the area, and I agree that the organization and design of the space are consistent with the surrounding context where a mixture of open surface, enclosed and front yard parking conditions are found.
113I find the general intent and purpose of the parking space Zoning By-law standard is maintained.
DESIRABLE AND MINOR
114For the reasons outlined above regarding the first two tests, I find also that the Revised Proposal is desirable for the appropriate development of the land.
115Mr. Romano testified that although most change will result in some level of impact, the Zoning By-law contemplates and permits impact. He asserted that the test for ‘minor’ is not to be determined based on the numerical deviation from the By-law standard but, instead, is meant to address whether the proposal would result in unacceptable, adverse impacts.
116His evidence was that there are no adverse impacts of a planning nature on the streetscape or adjacent properties from the Revised Proposal.
117Both Participants Caldwell and Perricone expressed concerns about impacts on their properties, specifically related to the main wall height variance and the proposed third storey.
118The Applicant is proposing a design with a building that is tapered at the rear, with the main wall height being 6.09m, which is less than the 7.5m standard permitted by the Zoning By-law. Additionally, the overall building height of 8.84m is less than the 10.0m By-law standard.
119I agree with Mr. Romano that the design features of the Revised Proposal, including a suitable rear yard setback and step back at the third storey, the location of the third-storey platform within the building envelope and the inclusion of privacy screening, appropriately mitigate any privacy and overlook impacts.
120I find, therefore, that the Applications meet the test of ‘Minor’.
THE ISSUE OF PRECEDENT
121Both the Applicant and the Participants cited the abutting property to the west of the subject property, 686 Cosburn Avenue, which was the subject of a consent to sever application in 2017.
122That application, which also sought consent to sever and associated variances, was refused by the Committee of Adjustment, appealed to the TLAB, and refused on appeal by the Tribunal.
123Mr. Caldwell specifically submitted the refusal decisions from both the COA and the TLAB in that case as a reason to refuse the Revised Proposal before this Tribunal. Mr. Perricone argued that granting the Applicant’s request to sever the subject property “…would create a dangerous precedent for…(the area)…”6
124The Applicant maintains that there are many differences between the 686 Cosburn Avenue proposal and the within Revised Proposal under consideration.
125At paragraph 43 of Mr. Romano’s EWS, he discusses that application and contends that the development proposal at 686 Cosburn involved more intense detached residential characteristics with variances for FSI, number of storeys, building height, and reduced front yard and side yard setbacks.
126He noted that the proposal was not supported by City staff and City Legal and that Community Planning staff attended the TLAB Hearing in opposition to those applications.
127I agree with Mr. Romano that the policy considerations have evolved significantly since that case was heard and decided by both the COA and TLAB, including the approval of OPA 320 and OPA 649 which led to the adoption of SASP 826 and associated zoning by-law to permit ‘multiplexes’ in Neighbourhoods.
128Both Participants raised the often-expressed concern for precedent; namely, that an approval here can lead to a proliferation of all manner of applications. However, I find no evidence to support that concern, as legitimate and genuine as it may be held.
129I agree with the observation of the former TLAB Chair, Ian Lord, in a 2019 Decision, where he stated, in addressing the issue of precedent:
“Precedent that threatens the essential objectives of respecting and reinforcing the existing physical character of the City’s Neighbourhoods is a relevant land use planning consideration given the expressed policies of the Official Plan.”7
130The potential for additional applications is a possibility; planning is nothing if it turns a blind eye to expectations.
131However, although I find the issue of precedent, in this case, to be relevant, it is not a determinant factor in assessing whether the policy support for ‘stable’, ‘sensitive’, and ‘gradual’ change in the neighbourhood is being respected and reinforced.
132While Mr. Caldwell cited the previous refusal of applications at 686 Cosburn Avenue as being of relevance to the case at hand, I nevertheless agree with the Applicant that 686 Cosburn was a different proposal under a different policy framework and is not determinant in this matter.
133Finally, I note that the approval herein is not acting to encourage similar proposals. Each proposal, if seeking a “Planning” approval, will be subject to a rigorous public process to assess its merits and whether it should be allowed or not. This ensures that any development that occurs in a neighbourhood will be achieved in a balanced manner taking into account all relevant issues.
NOTICE
134S.45(18.1.1) of the Planning Act allows the Tribunal to waive notice for a decision on an application that has been amended from the original application, on the condition that the amendment to the original application is minor, in the Tribunal’s opinion.
135The Applications before the TLAB have been significantly revised from those which were refused at the COA.
136I consider the elimination of the variances requested for building type, building height, floor space index, and other variance reductions already discussed in this Decision to be beneficial, and an improvement to the proposal.
137I find the cumulative revisions to the Applications are improvements, beneficial to the public interest and less impactful than the variances that were previously refused by the COA.
138Therefore, I find no further notice is required under s.45(18.1.1) of the Planning Act.
CONCLUSION
139I find that the application for consent to sever meets the criteria set out in s.51(24) of the Planning Act.
140I find that the requested variances, individually and cumulatively, meet the general intent and purpose of the Official Plan and the Zoning By-law and that they are desirable for the development of the land and are minor.
141I find no further notice is required.
DECISION AND ORDER
142The Appeal is allowed.
143The application for consent to sever is approved subject to the conditions contained in Appendix A.
144The variances to the Zoning By-law set out in Appendix B are authorized, subject to the conditions contained therein.
D. Lombardi TLAB Chair, Panel Member
APPENDIX A
Schedule A: Standard Consent Conditions
The Consent Application is approved on Condition
The TLAB has considered the provisions of Section 51(24) of the Planning Act and is satisfied that a plan of subdivision is not necessary. The TLAB, therefore, consents to the transaction as shown on the plan filed with the TLAB or as otherwise specified by this Decision and Order, 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.
(8) Road Widening
The Applicant shall implement the road widening conditions contained in the memorandum dated March 20, 2023, from Engineering and Construction Services, to the satisfaction of Engineering and Construction Services and City Legal.
APPENDIX B
APPROVED VARIANCES:
Part 1 (A)
- Chapter 10.20.30.10(1)(A), By-law 569-2013
The required minimum lot area is 280m².
The proposed lot area is 156.6m².
- Chapter 10.20.30.20(1)(A), By-law 569-2013
The required minimum lot frontage is 9.0m.
The proposed lot frontage is 5.64m.
- Chapter 10.20.40.10(4), By-law 569-2013
The permitted maximum main wall height is 7.5m.
The proposed main wall height is 8.53m.
- Chapter 10.20.40.50(3), By-law 569-2013
There may be no more than a total of 2 platforms for each dwelling unit, and no more than one on each of the front and rear sides of the dwelling unit.
There are 2 platforms at the rear main wall of unit 1, and 3 platforms total for unit 1.
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, with a lot frontage less than 6.0 metres, or a townhouse dwelling unit less than 6.0 metres wide, the front yard, excluding a permitted driveway, must be landscaping: 29.33m2 .
The landscaping area of the proposed front yard not covered by a permitted driveway is 14.8m2 (50%).
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, a minimum of 75% of the required front yard landscaping must be soft landscaping: 21.97m2 .
The proposed front yard soft landscaping area is 47% (13.87m2).
- Chapter 10.5.80.10.(3), By-law 569-2013
A parking space may not be located in a front yard or a side yard abutting a street.
The proposed parking space is located in a front yard.
Part 2 (B)
- Chapter 10.20.30.10(1)(A), By-law 569-2013
The required minimum lot area is 280m².
The proposed lot area is 156.5m².
- Chapter 10.20.30.20(1)(A), By-law 569-2013
The required minimum lot frontage is 9.0m.
The proposed lot frontage is 5.64m.
- Chapter 10.20.30.40.(1), By-law 569-2013
The permitted maximum lot coverage is 35% (54.77m2 ) of the lot area.
The proposed lot coverage is 36% (55.68m2 ) of the lot area.
- Chapter 10.20.40.10(4), By-law 569-2013
The permitted maximum main wall height is 7.5m.
The proposed main wall height is 8.53m.
- Chapter 10.20.40.50(3), By-law 569-2013
There may be no more than a total of 2 platforms for each dwelling unit, and no more than one on each of the front and rear sides of the dwelling unit.
There are 2 platforms at the rear main wall of unit 1, and 3 platforms total for unit 1.
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, with a lot frontage less than 6.0 metres, or a townhouse dwelling unit less than 6.0 metres wide, the front yard, excluding a permitted driveway, must be landscaping: 29.33m2.
The landscaping area of the proposed front yard not covered by a permitted driveway is 14.8m2 (50%).
- Chapter 10.5.50.10.(1)(A), By-law 569-2013
On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, a minimum of 75% of the required front yard landscaping must be soft landscaping: 21.97m2.
The proposed front yard soft landscaping area is 47% (13.87m2).
- Chapter 10.5.80.10.(3), By-law 569-2013
A parking space may not be located in a front yard or a side yard abutting a street.
The proposed parking space is located in a front yard.
CONDITIONS OF APPROVAL (Part 1 & Part 2):
The proposed dwellings shall be constructed substantially in accordance with the site plan and building elevations prepared by Lemcad Consultants dated September 18, 2023, including the following drawings for both Parts 1 and 2: A1 – Site Plan; A7 – Proposed Front (South) Elevation; A8 – Proposed Rear (North) Elevation; and A9- Proposed Side (West) Elevation. Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.
The owner shall construct the parking space with permeable materials.
The owner shall provide front yard soft landscaping as shown in drawing A1 prepared by Lemcad Consultants dated September 18, 2023.
Prior to final occupancy of any dwelling unit on Part 1, the owner shall plant one native tree in the front yard.
Prior to final occupancy of any dwelling unit on Part 2, the owner shall plant one native tree in the front yard.
Where there is no existing street tree, the owner shall provide payment in lieu of planting of one (1) 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.
The owner shall install a 1.5 m tall privacy screen along the perimeter of each rear third-storey platform of frosted glass or other opaque material.
Drawings for Part A
Drawings for Part B
Footnotes
- 156.60 m2 after a 1.44 m road widening requirement in favour of the City of Toronto.
- The City of Toronto adopted OPA 649 on May 12, 2023.
- City of Toronto’s Expanding Housing Options in Neighbourhoods (EHON): Multiplex Study – Final Report, dated April 13, 2023, p. 1.
- Mr. Romano’s Expert Witness Statement, para. 57, p. 20.
- Council adopt OPA 649 in May 2023, following a Staff recommendation “…to facilitate multiplexes in the near term, until Official Plan policies are considered more globally through the Official Plan Review.” City’s EHON: Multiplex Study - Final Report, dated April 13, 2023, p. 17.
- Mr. Perricone’s Participant Witness Statement (Form 13), dated October 26, 2023, para. 3, p. 2.
- TLAB Decision and Order for 37 Stafford Rd., dated June 11, 2019, p. 24.