Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-02-29
23 215202 S45 08 TLAB
Depasquale (Re), 2024 ONTLAB 194
DECISION AND ORDER
Issuance Date:
February 29, 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):
G. DEPASQUALE
Applicant(s):
OPTIONS ARCHITECTS INC
Property Address:
172 ALBERTUS AVE
COA File No.:
23 180765 NNY 08 MV (A0422/23NY)
TLAB Case File No.:
23 215202 S45 08 TLAB
Hearing Date(s):
January 30, 2024
Decision Delivered By:
TLAB Panel Member: B. Martin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Owner
J. KYRIAKOU
Appellant
G. DEPASQUALE
A. MARGARITIS
Applicant
OPTIONS ARCHITECTS INC
Participant
A. L. FISHER
Participant
L. CAIN
Participant
L. BOUJOFF
Participant
M. STRAZDINS
Participant
W. ORBACH
Participant
L. OLIVO
Participant
A. DODINGTON
Participant
S. GLYNN
Participant
W. LE
Expert Witness
S. QI
INTRODUCTION AND CONTEXT
1At its meeting on September 28th, 2023, the Committee of Adjustment for the City of Toronto refused an application for minor variance (File. A0422/23NY) for the property at 172 Albertus Ave.
2The minor variance was for a floor space index increase to 1.02 times the area of the lot.
3The requested minor variance would allow the conversion of non-habitable space in the attic of a house that is under construction.
4The decision of the Committee of Adjustment was appealed by counsel to the appellant.
5Mr. Andy Margaritas appeared as counsel for the Appellant. Mr. Margaritas called Mr. Steven Qi as a qualified expert to give opinion evidence in land use planning.
6Nine residents from the surrounding neighbourhood requested Participant status at the hearing.
7Two Participants, Ms. Laura Boujoff and Ms. Wendy Orbach appeared in opposition to the minor variance appeal.
THE LEGISLATIVE AND POLICY FRAMEWORK
8Provincial 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.
9Provincial 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.
10Variance – 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
11The property is in an area designated Neighborhoods in the City of Toronto Official Plan.
12The property is subject to the City-wide Zoning By-law No. 569-2013. It is zoned R (f7.5; u2; d0.6) (x949).
13The property was subject to a Committee of Adjustment application for six (6) minor variances in 2022. The variances approved by the Committee of Adjustment were to allow the construction of a new single detached dwelling.
14The decision of the Committee of Adjustment was subsequently appealed by the owner of 176 Albertus Ave. Ms. Laura Boujoff, the adjacent neighbor to the west of the property at 172 Albertus Ave.
15In a Decision and Order dated Friday, October 21, 2022, the Toronto Local Appeal body approved three of the original 6 minor variances requested by the Appellant to this hearing.
16A building permit based on the 2022 TLAB Decision and Order was issued by the City of Toronto on April 24th, 2023. The approved residential dwelling is currently under construction.
17In an order dated November 30, 2022, (Case No. OLT- 22-002465), the Ontario Land Tribunal amended Zoning Bylaw 569-2013 of the City of Toronto with respect to Maximum Height in Residential Zones as follows.
Maximum Height in Residential Zones within the former City of Toronto
By Law 259-2023, as amended, is further amended as follows:
(A) Within the lands of the boundary of the former City of Toronto, as shown with heavy lines on schedule one of this by-law, for those lands that have a zone symbol of R and RD on the zoning by-law map in Section 990.10, on the height overlay map in Article 995.20.1, change the existing numerical number values, in meters, following the letters HT to the numerical values as follows: from HT 9.0 to HT 10.0; from HT 10.0 to HT 11.0; from HT 11. 0. 2 to HT12. 0 and from HT 12.0 to HT 13.0.
18The property is located on the north side of Albertus Avenue, between Rosewell Ave. and Duplex Ave. The property is generally located south of Glencairn Ave., north of Eglington Ave. West, West of Young St. and east of Avenue Rd.
19The property is located within the neighborhood referred to as Lawrence Park South, within the City of Toronto.
20The property is rectangular in shape, with a frontage of 7.62 meters and a depth of 40.87 meters.
21Immediately abutting the property to the west is 176 Albertus Ave., which is a three-story single detached residential dwelling. Immediately abutting the subject property to the east is 168 Albertus Ave., which appears to be a two-story single detached residential dwelling.
22The immediate land uses to the north, south, east and west include single detached and semi-detached residential dwellings.
23The residential buildings in the neighborhood are single and semi-detached. The buildings very in height and present as one, two and three stories. Most of the dwellings in this neighborhood have front yard parking pads. Some of the dwellings have rear yard parking in detached garages. There are dwellings with integral garages. These are typically found in newer dwellings.
24A detailed review of the built form characteristics of the neighborhood, both by photographs and a summary of approved minor variances, identified prevailing architectural styles, massing and scale, side yard setback patterns, and landscaped open space patterns.
25A review of minor variance decisions for increases in FSI had been approved in the neighborhood.
26The change to the permitted maximum building height in the zoning by-law from 10.0 to 11.0 meters allowed the attic space ceiling to be raised thereby making it habitable.
27If granted, the minor variance will allow the conversion of existing attic space into habitable space, without changing the overall massing, and scale of the building.
28The building will continue to present as a two-story building with a sloped roof.
29This presentation is like the front elevation approved in the 2022 TLAB decision and order and almost identical to the building permit issued on October 20th, 2023.
30The building will remain compliant with performance standards related to setbacks and separation distances from neighboring properties that is consistent with what already exists and is found throughout the neighborhood.
31No windows are proposed on the side walls in order to protect the privacy of a adjacent buildings at 76 Albertus Ave. 168 Alburtus Ave.
32The proposed minor variance is consistent with the Provincial Policy Statement (2020).
33The proposed minor variance conforms to the Growth Plan for the Greater Golden Horseshoe 2020.
34The proposed minor variance maintains the general intent and purpose of the official plan.
35The requested variance maintains the general intent and purpose of the zoning bylaw.
36The proposed minor variance is desirable for the appropriate development of the land.
37The proposed minor variance is minor in nature.
ISSUES AND ANALYSIS
38Pursuant to Policy 4.1.5 of the City of Toronto Official Plan, a geographic neighborhood was established by the expert witness.
39The boundaries of the geographic neighborhood were Craighurst Ave. to the north, Young St. to the east, Rosewell Ave. to the West, and St. Clemens Ave. to the South.
40The factors influencing the boundaries of the geographic neighbourhood were zoning, prevailing dwelling type and scale, lot size and configuration, street pattern, pedestrian connectivity and natural and human made dividing features,
41Policy 4.1.5 requires development in Neighbourhoods to respect and reinforce the existing physical character of a geographic neighborhood, but there is no requirement or suggestion that prevailing density be the only characteristic considered.
42The zoning by-law regulates the use and physical characteristics of buildings on a property. It is meant to encourage compatible built form within the zone and surrounding properties. It is meant to prevent different or nuisance uses of the properties from the surrounding uses.
43The City of Toronto Zoning By-law is a comprehensive regulation, which is why the Planning Act of Ontario allows to performance standard changes based on the four tests in s.45.1.
44The proposed minor variance will allow a residential dwelling that represents modest redevelopment and regeneration. It will not change the built form pattern that exists, nor will it destabilize the geographic neighborhood.
45The test for minor is not a test of no impact, but rather an impact that rises to the level of being unacceptable. In this case, the proposed minor variance does not create any undue adverse impacts on the streetscape or the adjacent neighbours, including impacts with respect to shadows, privacy, or overlook.
46Comments from Ms. Boujoff and Ms. Orbach focused on the impact of the existing development on neighboring properties and the precedent that would be created if the minor variance is allowed.
47The increase in maximum building height from 10 meters to 11 meters as ordered by the Ontario Land Tribunal has made it possible to create liveable/habitable space in an area of the dwelling. The proposed minor variance for FSI will not result in a building mass and scale that is contrary to the existing character of the geographic neighborhood.
CONCLUSION
48The TLAB heard uncontested expert evidence from a qualified land use planner regarding the refusal of application (A0422/23NY) by the Committee of Adjustment for the City of Toronto. Mr. Qi’s expert evidence in land use planning is accepted.
49The requested minor variance is consistent with the Provincial Policy Statement, conforms to the Growth Plan, does not create any undue impacts from a planning perspective, is in keeping with the existing and planned character of the neighborhood, and meets the four tests as required by Section 45.1 of the Planning Act of Ontario.
DECISION AND ORDER
50The appeal is granted, and the minor variance is approved.
B. Martin
Panel Member