Yu (Re), 2024 ONTLAB 195

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-02-29

23 175503 S53 12 TLAB,

23 175506 S45 12 TLAB,

23 175507 S45 12 TLAB

Yu (Re), 2024 ONTLAB 195

Issuance Date:

February 29, 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")

Owner(s):

Applicant(s):

Property Address:

140 FLORENCE AVE

COA File Nos.:

22 229523 NNY 18 CO (B0046/22NY), 22 229524 NNY 18 MV (A0752/22NY), 22 229525 NNY 18 MV (A0753/22NY)

TLAB Case File Nos.:

23 197982 S53 18 TLAB, 23 197990 S45 18 TLAB, 23 197993 S45 18 TLAB

Hearing Date(s):

January 15, 2024

Decision Delivered By:

TLAB Panel Member T. Yao

People Type

First Initial. Last Name

Representative

Applicant/Appellant

S. Yu¹

A. Stewart

INTRODUCTION AND CONTEXT

1Ms. Yu wishes to sever her 50 foot wide lot and build two new houses. To accomplish this, she seeks the variances in Table 1, as well as the severance. On August 10, 2023 the Committee of Adjustment refused the severance and variances; she appealed and so this matter came to the TLAB.

Figure 2. Variances sought for 140 Florence Ave

From By-law 569-2013

Required/ Permitted

Proposed Part 1 (east)

Proposed Part 2 (west)

Side yard setback

1.8 m

0.91 m for east and west side yards

0.91 m

Lot area

550 m²

301.6 m²

Lot frontage

15 m

7.62 m

Lot coverage

30% times area of the lot

31.96%

Side main wall height

7.5 m

8.11 (formerly 8.3 m)

8.3 m

From former municipality of North York Zoning By-Law 7625²

Building height

8.8 m

9.97 m (formerly10.01 m)

10.01 m

THE LEGISLATIVE AND POLICY FRAMEWORK

2Provincial 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’), both related to matters of Provincial interest under s. 2 of the Planning Act. I have considered all these matters as I discuss below.

3Consent – s. 53

TLAB must be satisfied that the application for consent meets the criteria set out in s. 51(24) of the Planning Act. These criteria require that " regard shall be had to”:

(f) the dimensions and shapes of the proposed lots; and

(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;

[this is only a partial list, but I consider these the most relevant].

Variance – S. 45(1)

4In 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 and related caselaw. The tests are whether the variances cumulatively and individually:

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. [This is a complete list.]

Right to develop

9The obligation is on the proponents to demonstrate to the decision-maker that the statutory tests are met on the balance of probabilities; there is no right to a variance.

EVIDENCE

10I heard from one witness: Mr. Romano, Ms. Yu’s planner, whom I qualified as able to give opinion evidence in land use planning. In addition, I visited the site. What I saw was not evidence but allowed me to better understand Mr. Romano’s testimony.

ISSUES AND ANALYSIS

11I have an independent obligation to assess an application to make sure it satisfies the requirements under the Planning Act. This is the case even there only the applicant appears at a hearing, as is the case here.

12This property is in the triangle southwest of Sheppard Avenue and Yonge St. This intersection is one of the City’s four Growth Centres and the confluence of two subway lines. In the last decade and previously, there had been considerable severance activity; typically, a division of 50 foot frontages to two 25 foot ones (7.62 m), which is what Ms. Yu seeks.

13City of Toronto staff studied a potion of this triangle (the “West Lansing Zoning Study Ward 23”) and recommended it to be rezoned to permit lot frontages of 7.5 m with a minimum lot area of 300 m. This report was dated April 18, 2018. If Ms. Yu’s lot were in the West Lansing Study Area, it would not have needed frontage or lot size variances.

Figure 2. Romano map of frontages

9In Mr. Romano’s opinion, which I accept, this rezoning has made it easier to comply with the cornerstone Official Plan test for lots nearby³. The cornerstone test requires that the development respect and reinforce the physical character of the neighbourhood.⁴ As well the upzoning has shifted what may be expected in the future (the planned context), that is, that the growth centre and environs as planned by the City, have greater density.

10The West Lansing Study was adopted without an Official Plan Amendment. Staff noted that the rezoning complied with the PPS and Growth Plan. In particular, the PPS makes the Official Plan the “most important implementation vehicle”.⁵ I conclude that the West Lansing rezoning was in compliance with matters of Provincial interest under the Planning Act, the Provincial Policy Statement, the Growth Plan and the Official Plan.

11I now consider Mr. Romano’s evidence with respect to the “cornerstone” test. Following the Plan’s directives, he proposed two study areas (larger and immediate context) which I accept as reasonable areas for planning analysis. In Figure 2, I superimpose the West Lansing Zoning Study Area, showing the distribution of 2-5 foot frontages (black) in the larger study area. The adjacent block for Ms. Yu’s lot includes a rezoned portion of Florence.

12. A more detailed breakdown of frontages is shown in the two charts in Figure 3. They both isolate 7.62 m frontages at between 14 to 18% of overall lots. I accept Mr. Romano’s thesis that although these smaller lots are not a majority, they form a significant component and creation of two lots at 140 Florence will respect and reinforce the overall lot pattern.

13I find that the proposed severance satisfies the cornerstone test of “fitting in”.

Figure 3. Percentages of lot frontages

With respect to coverage and side yards, Mr. Romano said there was a “generous representation”; that is the variances for these characteristics respected the existing neighbourhood.⁶ He also stated that heights and side wall variances were “appropriate”⁷ and that Ms. Yu proposed reasonable floor to ceiling heights of 9 and 8 feet. I find the Planning Act tests for the severance and variances have been met.

Two other site specific rezonings in Mr. Romano’ study area

14The West Lansing and nearby areas have also been the site of two large scale Official Plan Amendments. These involve high rise on Sheppard with rear portion on Bogert being a more intensive low rise transitional houseform. For example, in 2022 for 53-63 Sheppard Avenue West and 62-68 Bogert Avenue (west of Beecroft and east of Benjamin) the Ontario Land Tribunal granted Official Plan and rezoning amendments in 2022 to permit 16 stories on Sheppard and stacked townhouses on Bogert. This also suggests that the intention of the Official Plan and zoning by-law as modified by these two site specific amendments is toward greater intensification.

Application amended from the original application

The number of variances has been reduced by one for each house since the Committee application. This is from a recent OMB case dealing with wall heights. Although I thought wall height variances are no longer necessary, Ms. Stewart has requested a variance to this provision nonetheless,. She also requests an order under s. 45(18.1.1) of the Planning Act, ⁸ dealing with modifications to the project after the Committee decision. I find the changes are minor and make this order, that no further notice is necessary.

DECISION AND ORDER

13No further notice is necessary for the amended application.

14The variances in Table 1 are authorized and a consent for severance is granted on the following conditions.

Conditions of Minor Variance Approval – 140 Florence Avenue

The proposed dwellings shall be constructed substantially in accordance with the following plans, prepared by ROCKIM DESIGN INC.:

a. Part 1:

i. Site Plan A-1 dated August 2, 2022.

ii. South Side Elevation A-6 dated August 2, 2022.

iii. North Side Elevation A-7 dated August 2, 2022.

iv. East Side Elevation A-8 dated May 2021.

v. West Side Elevation A-9 dated May 2021.

b. Part 2:

i. Site Plan A-1 dated August 2, 2022.

ii. South Side Elevation A-6 dated August 2, 2022.

iii. North Side Elevation A-7 dated August 2, 2022.

iv. East Side Elevation A-8 dated May 2021.

v. West Side Elevation A-9 dated May 2021.

The owner shall submit an application to injure or remove Privately-owned tree(s), pursuant to Chapter 813 of the Municipal Code, Article III (Privately-owned trees).
Where there is no existing street tree, the owner shall provide payment in lieu of planting of one 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.

Conditions of Consent Approval – 140 Florence Avenue

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.
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.
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.
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.
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.
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.
Prior to the issuance of the Certificate of Official by the Manager and Deputy Secretary Treasurer, Committee of Adjustment:

a. The applicant shall retain a consultant archaeologist, licensed by the Ministry of Citizenship and Multiculturalism, under the provisions of the Ontario Heritage Act (R.S.O. 1990 as amended) to carry out a Stage 1- 2 archaeological assessment of the entire development property and follow through on recommendations to mitigate, through preservation or resource removal and documentation, adverse impacts to any significant archaeological resources found. The assessment is to be completed in accordance with the Ministry of Citizenship and Multiculturalism's 2011 Standards and Guidelines for Consultant Archaeologists.

b. Should the archaeological assessment process continue beyond a Stage 1-2 assessment, any recommendations for Stage 3 - 4 mitigation strategies must be approved by Heritage Planning prior to commencement of the site mitigation.

c. The consultant archaeologist shall submit a copy of the relevant assessment report(s) to the Heritage Planning Unit as an Acrobat PDF file. All archaeological assessment reports will be submitted to the City of Toronto for approval concurrent with their submission to the Ministry of Citizenship and Multiculturalism.

d. No demolition, construction, grading or other soil disturbances shall take place on the subject property prior to the City’s Planning Division (Heritage Planning Unit) and the Ministry of Citizenship and Multiculturalism (Archaeology Programs Unit) confirming in writing that all archaeological licensing and technical review requirements have been satisfied.

Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.

T. Yao

Panel Member

Footnotes

Although I refer to Ms. Yu as the legal owner, she has assigned her interest.
The present City-wide zoning by-law was adopted in 2013 and because the appeals concerning building height for 569-2013 was still unresolved when Ms. Yu filed her application, the City’s zoning examiner tested her application for compliance with both the 2013 zoning by-law and the previous North York Zoning By-law. This has resulted in Ms. Yu seeking one additional variance from what was considered by the Committee of Adjustment.
The lack of an OPA confirms that the zone standards, including lots of 7.5m lot frontage and 300m2 lot area, conform to the official plan, respects and reinforces the existing physical character. I note that the Decision Table includes severances where lot sizes have been varied to permit smaller than 7.5m lot frontage and 300m2 lot area within the area-specific zoning by-law area. (Witness Statement par 36)
4.1.5. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: b) prevailing size and configuration of lots; c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties; . . . f) prevailing patterns of rear and side yard setbacks and landscaped open space . . .( Official Plan, p 4-3)
The PPS recognizes and acknowledges the Official Plan as an important document for implementing the policies within the PPS. Policy 4.7 of the PPS states that, "The official plan is the most important vehicle for implementation of this Provincial Policy Statement.
Within the immediate context of 44 properties where I have analyzed quantitative features utilizing available research, ArcGIS and city desktop mapping tools, there is a generous representation of lots with buildings exceeding 30% lot coverage (32%), exceeding 17m building length (20%), and having side yards setbacks smaller than 1.8m (89% on one side; 59% on both sides, while 66% are smaller than 1.2m). . (Witness Statement par 41c)
Furthermore, the qualitative and numeric assessment I have undertaken confirms that side yard setbacks smaller than 1.8m are commonplace (89% on one side; 59% on both sides). Side yard setbacks smaller than 1.2m are also commonplace (66% on at least one side). With respect to side wall height, the proposal provides a 7.65m to 7.80m wall height to the top of the double plate, and 8.11m to 8.30m to the point above where the roofline is located. This wall height is appropriate within a context where comparable and taller wall heights exist, including those that have required variances since this performance standard was introduced in the spring of 2013. (Witness Statement par 22)
Amended application (18.1) On an appeal, the Tribunal may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to the persons and public bodies who received notice of the original application under subsection (5) and to other persons and agencies prescribed under that subsection. Exception (18.1.1) The Tribunal is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor. Notice of intent (18.2) Any person or public body who receives notice under subsection (18.1) may, not later than thirty days after the day that written notice was given, notify the Tribunal of an intention to appear at the hearing or the resumption of the hearing, as the case may be. Order (18.3) If, after the expiry of the time period in subsection (18.2), no notice of intent has been received, the Tribunal may issue its order. Hearing (18.4) If a notice of intent is received, the Tribunal may hold a hearing or resume the hearing on the amended application, or it may issue its order without holding a hearing or resuming the hearing.