Sahni (Re), 2024 ONTLAB 193

Toronto Local Appeal Body

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

Date: 2024-02-28

23 176527 S45 04 TLAB

Sahni (Re), 2024 ONTLAB 193

DECISION AND ORDER

Issuance Date: February 28, 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): WADE SAHNI

Applicant(s): RENEW ARCHITECT

Property Address: 287 A HIGH PARK AVE

COA File No.: 23 129503 STE 04 MV (A0351/23TEY)

TLAB Case File No.: 23 176527 S45 04 TLAB

Hearing Date(s): December 1, 2023

Decision Delivered By: TLAB Panel Member C. Wong

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Owner/ Appellant	W. Sahni	I. Flett
Applicant	Renew Architect
Party	M. Glover	G. O’Brien
Expert Witness	L. Lynch
Expert Witness	J. De Ruyter

INTRODUCTION AND CONTEXT

1Mr. Wade Sahni, the Applicant/Owner of 287A High Park Avenue (“the Subject Property”), wishes to alter the existing two-storey detached dwelling by constructing a two-storey rear addition, with a rear first storey sunken patio and a rear basement walkout (“the proposal”).

2The Subject Property was previously part of the property to the north, 289 High Park Avenue, and was severed prior to the construction of the existing residence at 287A in 1951.

3The Subject Property is located in the Junction Area of Toronto, designated Neighbourhood in the Official Plan, and is subject to the City-wide Zoning By-law No. 589-2013, as amended. The City of Toronto Zoning label is R (d0.6) (x737).

4The Owner/Applicant of the Subject Property applied to the Committee of Adjustment (“COA”) for the following variances:

1. Chapter 10.5.40.50.(2), By-law 569-2013 The minimum side required setback for a platform without main walls, attached to or less than 0.3 m from a building is 0.45 m. The first storey rear deck will be located 0.16 m from the side (south) lot line.

2. Chapter 10.5.40.50.(2), By-law 569-2013 The maximum permitted building depth is 17 m. The altered dwelling will have a depth of 22.77 m.

5On Wednesday, June 28, 2023, the COA denied the Applicant’s two requested variances.

6On July 18, 2023, the Applicant/Owner appealed to the Toronto Local Appeal Body (“TLAB”), with Mr. Ian Flett as his legal representative. TLAB scheduled a Hearing date for December 1, 2023.

7On August 29, 2023, Ms. Melody Glover elected Party status opposing the appeal. Her legal representative is Ms. Grace O’Brien. Ms. Glover resides at 285-287 High Park Avenue, the single property directly to the south of and abutting the Subject Property.

8On October 16, 2023, Ms. O’Brien filed the Respondent’s Document Disclosure and the Witness Statement of the Respondent’s Expert, Mr. Julius De Ruyter, a land use planner.

9On October 16, 2023, Mr. Flett filed the Applicant’s Document Disclosure and the Witness Statement of the Applicant’s Expert, Ms. Lucy Lynch.

10On October 31, 2023 (after the October 16, 2023 deadline), however, the Applicant filed Revised Plans for Disclosure, which the TLAB marked as late.

11In addition, on October 31, 2023, Ms. Lynch filed a Responding Statement to Mr. De Ruyter’s Expert Witness Statement. On the same day, Mr. De Ruyter filed a Responding Statement to Ms. Lynch’s Expert Witness Statement.

12At the virtual TLAB Hearing on December 1, 2023, Mr. Flett and Ms. Lucy Lynch appeared for the Applicant. Ms. Melody Glover appeared in opposition to the proposal, along with Ms. O’Brien, and Mr. De Ruyter.

THE LEGISLATIVE AND POLICY FRAMEWORK

13Provincial 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.

14Variance – Planning Act 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

15At the virtual Hearing, I qualified both Ms. Lynch and Mr. De Ruyter to give planning evidence. They acknowledged their Expert’s Duty to provide evidence that is objective and impartial.

16With no objections from the Respondent, I admitted the Applicant’s late filed Revised Plans.

17In its Revised Plans, the Applicant moved back its proposed deck from the side yard setback and no longer required a first storey rear deck variance. The Applicant maintained the requested variance for building depth. I accept that these amendments to the application are minor, are intended to reduce impacts on neighbours, and that no new notice is required, according to subsection 45 (18.1.1) of the Planning Act.

18The Hearing proceeded on the merits of the Revised Plans, in particular, to authorize a maximum permitted building depth of 22.77m, where the By-law’s maximum permitted building depth is 17m.

19I admitted and marked the evidence for the record as follows:

A. Exhibit 1 – Expert Witness’ Statement (Form 6, Expert’s Duty and Form 14, Qualifications) B. Exhibit 2 – Applicant’s Witness Statement C. Exhibit 3 – Applicant’s Disclosure of Revisions, October 31, 2023 D. Exhibit 4 – Applicant’s Responding Witness Statement, by Ms. Lynch E. Exhibit 5 – Party Document Disclosure (in two parts) F. Exhibit 6 – Committee of Adjustment Decision Notice, by Ms. Lynch G. Exhibit 7 – Respondent’s Expert Witness Statement (Form 6, Expert’s Duty and Form 14, Qualifications), by Mr. De Ruyter H. Exhibit 8 – Respondent’s Expert Response I. Exhibit 9 – Respondent’s Reply to Applicant’s Expert Response J. Exhibit 10 – Respondent’s Document Disclosure

MATTERS AT ISSUE

20Does the Applicant’s requested variance meet the Planning Act requirements?

A. Is the requested variance consistent with the Provincial Policy Statement and does it conform to the Growth Plan? B. Does the variance satisfy the four statutory tests in s. 45(1) of the Planning Act?

ANALYSIS, REASONS AND FINDINGS

Issue A

21I accept Ms. Lynch’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe for the subject area.

Issue B

1. General Intent and Purpose of the Official Plan

22Ms. Lynch highlighted the following Official Plan policies:

"Policy - 2.3.1 Healthy Neighbourhoods

"[N]eighbourhoods will not stay frozen in time. The Neighbourhoods where we grew up and now raise our children help shape the adults and society we become. Some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites. A cornerstone policy is to ensure that new physical development in our neighbourhoods respects the existing physical character of the area, reinforcing the stability of the neighbourhood."¹

1. Neighbourhoods and Apartment Neighbourhoods “are considered to be physically stable areas". Development within Neighbourhoods and Apartment Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes, and open space patterns in these areas.”²

23"Policy - 4.1.5 Development Criteria in Neighbourhoods

"5. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

a) patterns of streets, blocks and lanes, parks, and public building sites; b) prevailing size and configuration of lots; c) prevailing heights, massing, scale, density, and dwelling type of nearby residential properties; d) prevailing building type(s); e) prevailing location, design, and elevations relative to the grade of driveways and garages; f) prevailing setbacks of buildings from the street or streets; g) prevailing patterns of rear and side yard setbacks and landscaped open space; h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and i) conservation of heritage buildings, structures, and landscapes.”³

"The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context).” ⁴

24Official Plan Policy 4.1.5 elaborates that “the physical character of the geographic neighbourhood includes both the physical characteristics of the broader and immediate context and that a proposed development must be “materially consistent with the prevailing physical character of properties in both the broader and immediate contexts”. ⁵ It continues, “In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.” ⁶

25In addition, "[i]n determining whether a proposed development in a Neighbourhood is materially consistent with the physical character of nearby properties, only the physical character of properties within the geographic neighbourhood in which the proposed development is to be located will be considered."⁷

Official Plan Policy 4.1.5 (g) prevailing patterns of rear and side yard setbacks and landscaped open space.

26Ms. Lynch delineated a neighbourhood study area as directed by the Official Plan, specifically identifying the boundaries of the Subject Property’s Broader Context as follows:

• “The western side of Mavety Street to the west,
• Clendenan Avenue to the east,
• The rear property line of the properties fronting Annette Street to the south, and
• The rear property line of the properties fronting Dundas Street West to the north.” (Exhibit 2, page 8).

27She asserted that in this Broader Context, building depths “vary due to the historical development of the neighbourhood”, referring to a range of lot sizes and frontages, as well as a mix of dwelling types (detached and semi-detached), and styles (Victorian, Edwardian and Tudor). (Exhibit 2, paragraphs 41-45).

28Referring to several Google Map aerial photos (“Exhibit E: Rear Yard Condition Study”, Exhibit 5, part 2) of the Broader Context, she opined that there is significant variation in building lengths and rear yard setbacks and “no “prevailing” rear condition in this regard (Exhibit 2, paragraph 44).

29As well, for Ms. Lynch’s Immediate Context, she provided Google Map aerial photos of the Rear Yard Conditions (Exhibit 5, Part 2, Exhibit E – Rear Yard Condition Study: Immediate Context). Using this evidence, she asserted that in the Immediate Context, lot lengths and widths vary, with the Subject Property having a narrower and longer lot compared to the surrounding lots.

30Due to the declination angle (which is not given), panoramic distortion, and an inability to see through vegetation, Google Map aerial photos do not lend themselves to a close and detailed comparison of different features such as the relative location of rear walls.

Official Plan Policy 4.1.5 (c) prevailing heights, massing, scale, density, and dwelling type of nearby residential properties

31In addition to aerial photos, however, Ms. Lynch provided a chart of the approved building depth variances since 2000, in her Broader context (Exhibit 5, Part 2 Exhibit E – Rear Yard Condition Study).

32Still, from this chart, the proposal exceeds all of the approved building depth variances in the Broader Context. It is thus greater than the average or median approved depth variance (though none was provided by Ms. Lynch).

33In fact, the proposed building depth variance is 1.67m greater than the largest approved depth variance in this subset.⁸ The largest proposed depth was 21.10m (at 371 Pacific Avenue), a variance of 4.10m above the maximum building depth of 17m. The requested variance of 22.77m is 5.77m above the maximum building depth of 17m permitted by the Zoning By-law.

34Mr. De Ruyter, the Respondent’s expert planning witness, delineated slightly larger Broader and Immediate Contexts than Ms. Lynch. He included in his geographic neighbourhood or Broader Context, “what residents may experience in their day-to- day life, within walking distance from their homes, including walking a dog, walking to schools or using nearby recreation facilities” (Exhibit 7, paragraph 46), and included a radius of roughly a 5-minute walk around the subject property.

35His Broader Context included Keele Street on the east, houses facing east onto Clendenan Avenue on the west, Bloor Street on the south and Dundas Street on the north (Exhibit 10, page 184, Figure 1, Visual Evidence). His Immediate context contained the residential blocks facing both sides of High Park Avenue, north of Annette including those abutting Annette Street, and South of Dundas Street West.

36Ms. Lynch emphasized that since the proposal is completely at the rear of the Subject Property, the massing and scale of the building would not be experienced from the street and would thus respect and reinforce the prevailing character of the immediate and broader neighbourhood contexts. Mr. De Ruyter, however, emphasized that the massing and scale of a building can present themselves in a number of ways, including in the length and depth of a building (Exhibit 7, paragraph 119).

37In particular, with the Subject Property, the “mass of building is deployed in a way that lengthens the building significantly beyond the depths of the existing dwellings on the east side of High Park Avenue as shown in Figure 7, where the Addition penetrates the prevailing or average/median building depth line, outlined in light blue” in the Immediate context, east side (#273-303) of High Park Avenue as they relate to the proposal (Exhibit 7, paragraph 119; Exhibit 10, Figure 7, page 192).

38Further, from reviewing all decisions on record from the Committee of Adjustment and OMB/TLAB Decisions on Minor Variances in his Broader Context, Mr. De Ruyter concluded that the average approved depth variance is 18.69m, “which is well below what is proposed at 22.77m”. (Exhibit 7, paragraph 120; Exhibit 10, Figure 4, page 187).

39Mr. De Ruyter submitted that there are no building depths in excess of the proposed 22.77m, in either the Broader or Immediate Contexts.

40Official Plan Policy 4.1.5 explains that to reinforce and respect the neighbourhood’s character, a development need not exist in the most substantial or most frequently occurring numbers, but it must be materially consistent with what is prevailing and substantially occurring. Thus, although a requested depth variance need not be the most frequently occurring, it must at least be consistent with what is prevailing or substantially occurring in the neighbourhood.

41Mr. De Ruyter’s Decisions record showed that the Applicant’s proposed depth is not only not the most frequently occurring, but the depth is also not prevailing or even substantially occurring in the Broader or Immediate Context.

42Mr. De Ruyter concluded that the building depth of proposed development does not respect and reinforce the existing physical character of the broader geographic neighbourhood, and that the variance sought by the Applicant does not satisfy the general intent and purpose of the Official Plan.

43Further, in addressing OP Policy 4.1.5 (g), Mr. De Ruyter noted that the current south side yard of the existing building on the Subject Property is 0.16m, whereas the Zoning By-law maximum side yard setback standard is 0.45m.⁹ Therefore, the existing south side yard building setback is already non-compliant.

44Although the Applicant no longer requires a first storey rear deck at 0.16m, the proposal has a reduced and non-compliant south side yard setback (0.16m) from the adjacent property for most its depth, and then juts away to a 0.76m side yard setback for 3.9m where it extends past the Glover property.

45I agree with Mr. De Ruyter’s evidence that the proposal’s wall is “within very close proximity of the Glover’s existing dwelling, deck and portion of their rear yard”. (Exhibit 7, paragraph 122). The impact of the proposal on the adjacent property is thus compounded by the closeness (0.16 m) of the existing building to the Glover’s property, for more than half its depth even though the previously requested rear deck setback variance has been eliminated.

46Mr. De Ruyter concluded that “Buildings with the Building Depth and a substantially reduced side yard setback proposed by the Applicant do not exist within the Geographic Neighbourhood and these physical characteristics are not prevailing.” (Exhibit 7, paragraph 123).

47I agree in this regard and, therefore, I find that the proposal does not respect and reinforce the prevailing rear and side yard setbacks in the neighbourhood (OP Policy 4.1.5(g)).

48Based on an analysis of approved variances in the Broader neighbourhood and an examination of the proposal’s side yard proximity to the directly abutting property to the south, Mr. De Ruyter concluded that the proposal is not materially consistent with the prevailing massing in the Broader or Immediate Contexts.

49Although Ms. Lynch provide opinion in this regard, I found her evidence did not satisfy the burden of proof that the proposal respects and reinforces the prevailing character of the neighbourhood.

50I find that the proposal does not respect the prevailing pattern of rear yard setbacks (OP Policy 4.1.5 (g) and does not respect massing and scale of buildings in the immediate and broader geographic context (OP Policy 4.1.5 (c)).

2. Zoning By-laws

51The general intent and purpose of maximum building depth in Zoning By-law 569-2013 is to maintain “generally consistent alignment of the rear building walls and rear yards” (Exhibit 2, paragraph 83), and “to ensure a compatible relationship between dwellings” (Exhibit 7, paragraph 131). Building depth ensures that buildings are not only aligned at the front but also at the back.

52Ms. Lynch asserted that due to the large front yard setback of the existing dwelling on the Subject Property compared to the Glover’s property at 285-287 High Park Avenue, the requested building depth variance on the Subject Property is necessary. Mr. De Ruyter provided a drawing comparing the proposal’s building depth assuming an average front yard setback for the Properties on the east side of High Park Avenue (# 273-303) (Exhibit 10, Exhibit 8, page 194). This drawing shows that in the Immediate context, there are other properties, specifically 289 and 291 High Park Avenue, with large front yard setbacks (and deeper lots) similar to the Subject Property. Despite having a similar front-yard setback and lot depth as these two properties to the north, the proposal would result in building with a depth which extends much farther than the prevailing line of the rear main walls on the east side of High Park Avenue.

53Ms. Lynch’s justification that the lot is differently configured than others does not address the intent of the By-law, which seeks a general alignment of the front and rear faces of buildings. In this respect, I prefer the evidence of Mr. De Ruyter.

3. Desirable for the Appropriate Development or Use of Land

54The proposal would create a new two-storey rear addition with a building depth that is not consistent with those of dwellings in the surrounding neighbourhood, particularly, as seen in Exhibit 10 (Figure 7, page 193), with the immediate neighbour to the North, 289 High Park Avenue from which it was severed in 1951, which shares a similar front yard setback, and lot depth. Given the narrowness of the property and the close proximity the building has with its abutting neighbour, I find that the proposal would not be desirable.

4. Minor

55Ms. Lynch asserted that there would be no shadow impacts from the proposal because the Respondent’s dwelling is south of the Subject Property.

56The Applicant made efforts to reduce the impact of its property by creating a notched separation or ‘jog’ (still two stories high) to a total of 0.76m (increased from 0.16m) between the Subject Property and 285-287 High Park Avenue for part of the proposed development.

57Despite the elimination of the variance for the side yard setback for a platform (Variance 1 in the Committee of Adjustment Application), however, I find that the gap of 0.16m (for two thirds of the proposal’s length) and 0.76m (for the remaining 3.9m that it extends passed the Glover’s residence) between the proposal and the neighbouring building would exacerbate the impact of the massing of the proposal on the property to the south.

CONCLUSION

58I find that the proposal does not satisfy the four statutory tests in s. 45(1) of the Planning Act. The variance sought does not maintain the general intent and purpose of the Official Plan. I also find that variance sought does not maintain the general intent and purpose of the Zoning Bylaw.

59On this basis, the appeal is dismissed.

DECISION AND ORDER

60The Appeal is dismissed; the requested variance is not authorized.

C. Wong

Panel Member

Footnotes

1. 1Toronto City, Official Plan, March 2022, Page 2-27.
2. 2Ibid., Page 2-29.
3. 3Ibid., Page 4-4.
4. 4Ibid., Page 4-4.
5. 5Ibid., Pages 4-4 to 4-5.
6. 6Ibid., Pages 4-4 to 4-5.
7. 7Ibid., Page 4-5.
8. 8In her list of approved building variances, Ms. Lynch missed one property, 22 Medland Street, which according to Mr. De Ruyter’s testimony, had a building depth variance that was also smaller than the proposal’s.
9. 9with no window or door openings, as is the case for the Subject Property