Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
23 204701 S45 03 TLAB
Zelenovic (Re), 2024 ONTLAB 198
DECISION AND ORDER
Issuance Date: March 6, 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): O. ZELENOVIC
Applicant(s): ROYAL DECKS AND LANDSCAPES
Property Address: 17 STREIGHT LANE
COA File No.: 23 171068 WET 03 MV (A0286/23EYK)
TLAB Case File No.: 23 204701 S45 03 TLAB
Hearing Date(s): February 20, 2024
Decision Delivered By: TLAB Panel Member T. Yao
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| APPLICANT | ROYAL DECKS AND LANDSCAPES | |
| APPELLANT | O. ZELENOVIC | M. KEMERER |
| PARTY | M. ENNADOURI, T. ENNADOURI | |
| K. ENNADOURI |
INTRODUCTION AND CONTEXT
1Mr. Zelenovic wishes to build a second-floor deck at the rear of his house at 17 Streight Lane. To do so he requests the variance set out in Table 1. On July 19, 2023, the Committee of Adjustment refused the variance. Mr. Zelenovic appealed and so this matter came to the TLAB.
Table 1. Variance sought for 17 Streight Lane
| Required/Permitted | Proposed |
|---|---|
| Projection of second floor deck from rear mail wall | 1.8 m |
THE LEGISLATIVE AND POLICY FRAMEWORK
2The development must be consistent with the Provincial Policy Statement and conform to the Greater Golden Horseshoe Growth Plan. Both these documents contain a high level of generality, for example the protection of agricultural land and focussing development in settlement areas such as the area with the City of Toronto limits. I do not think these documents are of assistance in deciding the size of rear deck on one lot in an established urban area.
3The variance must also comply with s. 45(1) of the Planning Act and applicable case law and meet all of these four tests, cumulatively and individually:
- maintain the general intent and purpose of the Official Plan;
- maintain the general intent and purpose of the Zoning By-laws;
- be desirable for the appropriate development or use of the land; and
- be minor.
EVIDENCE
4I heard from Ms. Powell, planner for Mr. Zelenovic. Mr. Ennadouri testified on behalf of his parents, who own 28 Renown Rd and all three oppose the variance.
5I also visited the property. This does not constitute evidence but enabled me to better appreciate the evidence given by the witnesses.
Right to develop
6The obligation is on Mr. Zelenovic to demonstrate to the decision-maker that the tests are met on the balance of probabilities; there is no right to a variance.
ISSUES AND ANALYSIS
The Project
7Mr. Zelenovic already has a deck; he just wishes to extend it further away from the house. It is at the second-floor level, part of a balcony structure that also serves the other 9 townhouse owners. The deck structure is 1.2 m wide, (about the size of his barbecue, lengthwise), Mr. Zelenovic wants to extend it another 1.1 m (4 ft) to make a 2.3 m (7.5 ft) wide deck. The variance is 0.5 m (1.6 ft) where 1.8 m (5.9 ft) is permitted.
Figure 2. Mr. Zelenovic’s rear yard and my diagram of what he proposes to do
8Since there is an 80-inch-high privacy fence at grade, that already extends 2.3 m, it forms a good proxy for where the extended deck will be.
9To go back to how Mr. Zelenovic’s townhouse was approved, prior to November 2005, Streight Lane was an underutilized parcel just north of the Bloor/Dundas/Kipling confluence and zoned R2 and Commercial Local. The OMB rezoned it to R4G, permitting a 20-unit townhouse complex, composed of two ten-unit blocks, one on each side of Streight Lane. Streight Lane is a private road, with no grassed yards, sidewalks or private driveways.
10All the units have a small back yard at the ground level, separated by fences, beyond which is essentially one long grassy open space. The owners cannot build on this strip, since it is encumbered by a utility corridor. Passerbys, if they wish, can gain access to rear yards, which Ms. Powell said was a concern of Mr. Zelenovic and so the second-floor deck is the only secure outdoor space. None of the units have much of a front yard; the Streight Lane road surface leads directly to a garage door and a set of steps leading to the front entrance.
11The opposing neighbours, the Ennadouri family, own a larger lot, abutting a number of townhouses. To the north is a private driveway/side yard shared with number 30 Renown, to the southeast there is a side to back relationship with commercial/residential low-rise on Dundas and a back to back relationship with the east block of Streight Lane. The Ennadouris back onto six-plus townhouse units, each 4.65 m wide, so their pie shaped back yard is over 30 m (98 ft) wide at the widest point, as shown in Ms. Powell’s diagram (Figure 3, left). Ms. Powell estimated that wall to wall distances are over 25 m.
Figure 3. 28 Renown. Left: Powell diagram; Right :zoning map
Mr. Ennadouri’s issues:
12Mr. Ennadouri raised two issues: a concern that the fact that his property will be devalued (“a second time”) and a further loss of privacy, particularly if others follow Mr. Zelenovic’s example.1 To summarize, many of his complaints seemed to be related to the existing development, which he says has caused impacts on his enjoyment of the back yard. For example, whether of not the variance is granted, people could still view his back yard. The TLAB cannot revisit this prior decision.
13I am not prepared to accept Mr. Ennadouri’s non-expert assertion as to the value or loss of value to his house. Property values in the City are affected by many factors, Second, while I appreciate that his family believes some of his neighbours have been disrespectful and caused some loss of privacy, I accept that the distance and presence of a tree would reduce the impact of the deck extension to what would be expected in an urban setting in which there can be close land use impacts from one neighbour to another.
Zoning intent
14I am required to test the variance against what is “intended” by the zoning by-law and Official Plan. What is intended is more than what the document says, I have to decode it to see what City Council was trying to achieve.
15In this case Council intended quite different house forms could flow from the zoning for the two lots:
Figure 4. Comparison of the zoning of the two lots
| 1 | 17 Streight Lane | 28 Renown Rd |
|---|---|---|
| Zoning | R4G | RD (Residential Detached) |
| Min. frontage | 4.65 m (as built) | 13.5 m (44.3 ft) |
| Min. lot area | 92 m² (as built) | 550 m² |
| Max. GFA | 175 m² | 330 m² |
| Min rear yard setback | 5.5 m | 7.5 m |
| Max deck projection | 1.8 m | 1.8 m |
16Although the minimum area for Renown lots is more than five times that of Streight lots, Renown owners are permitted a house only twice as large, which implies smaller lot owners will be given somewhat more leeway in any expansion plan, given that City Council and Ontario government policy is to encourage housing density in urban areas. For example, the OMB, a provincial Tribunal ruled that the Streight lots need only have a 1.5 m rear yard setback. The Tribunal accepted the policy that it was appropriate to have more housing on less land.
17Mr. Zelenovic cannot increase indoor space because of the 5.5 m rear yard setback and height restrictions. The intent for both lots is to permit rear decks to “project” into this setback up to 1.8 m. Given the previous conclusion that smaller lot owners will be given somewhat more leeway provided planning policies are maintained, I find the 0.5 m additional width over the 1.8 m standard maintains the intent of the zoning by-law for these smaller lots.
18The by-law clearly intends Streight Lane owners to be able to build a 1.8 m wide deck. For some reason the builders did not take advantage of all the latitude they were given in the site-specific rezoning. This is clear from s. 5(c) of By-law 2-2006:
(c) Required building setback and separations shall not be obstructed by any construction other than the following: . . .(iii) open, uncovered (or roofed) porchway, veranda, decks, balconies and grade-related patios projecting a maximum of 1.8 metres from the exterior front or rear wall (including walls facing the internal driveway).
In my view, given the intention of the zoning by-law as modified by 2-2006, the intention of a small variance is maintained because Council intended that decks should be allowed to project some distance and it is reasonable to do so within the context of the other dimensions imposed by the R4G zoning. In Ms. Powell’s words, which I accept, the variance is “contextually appropriate”. In addition, the 0.5 m additional width is minor and desirable for the use that Mr. Zelenovic proposes.
Official Plan intent
Figure 5. Excerpt of Official Plan Map 2, showing Kipling Centre in red
19The Official Plan is a much broader document than the zoning by-law. From s. 45(1) of the Planning Act, the variance must satisfy both documents. The Official Plan intends that neighbourhoods be stable, but some small changes may occur, if they are gradual and sensitive. I find this change to be gradual and sensitive.
20Ms. Powell drew a neighbourhood consisting of Streight Lane, Dundas lots2 and large lot residential such as 28 Renown. While this is not incorrect, in my opinion these are three distinct neighbourhoods, and the Plan states that in such cases the immediate block, i.e., the twenty townhouses, will be more “relevant”.3
21Within this neighbourhood, the project fits in well. All of Mr. Zelenovic’s neighbours support the application, as well as the Property Manager. While a TLAB hearing is not a referendum, their letters of support are indicative of lack of shadowing and privacy impacts for these neighbours. I recognize that Mr. Ennadouri does not agree.
22Secondly, the Official Plan sets out a broad vision for the area within the context of the entire City. The Zelenovic lot is either in a “Centre” or pretty close. These are the focus of growth4 and greater density.
23I find the intent of the Official Plan and zoning by-law are maintained and that the variance is minor and desirable for the appropriate development of the land and accordingly the variance meets the four tests as required under the Planning Act.
DECISION AND ORDER
24The variance in Table 1 is authorized on condition that the structure is built in substantial compliance with the plans on file at the Toronto Building Department.
T. Yao Panel Member
2.1.1 Four key locations on the rapid transit system, shown as Centres on Map 2, play an important role in how we manage growth. The Scarborough, North York, Etobicoke and Yonge-Eglinton Centres are places with excellent transit accessibility where jobs, housing and services will be concentrated in dynamic mixed-use settings with different levels of activity and intensity. These Centres are focal points for surface transit routes drawing people from across the City and from outlying suburbs to either jobs within the Centres or to a rapid transit connection. 2.1.2 STRUCTURING GROWTH IN THE CITY: INTEGRATING LAND USE AND TRANSPORTATION 2.1.3 In keeping with the vision for a more liveable Greater Toronto Area, future growth within Toronto will be steered to areas which are well served by transit, the existing road network and which have a number of properties with redevelopment potential. Generally, the growth areas are locations where good transit capacity can be provided along frequent bus and streetcar routes and at higher-order transit stations. Areas that can best accommodate this growth are shown on Map 2: Downtown, including the Central Waterfront, the Centres, the Avenues and the Employment Areas. A vibrant mix of residential and employment growth is seen for the Downtown and the Centres. (Official Plan p2-3)
Footnotes
- Mr. Ennadouri [senior] and his family are again potentially receiving the short end of the stick. If the proposed change occurs, it would devalue the property for a second time. I say a second time, because decades ago, we argued against the development of these very townhouses under question, as we foresaw the downsides of this development. Unfortunately, at the time, the neighbourhood’s and our concerns fell on deaf ears. . . .Our disapproval for the project was not heard and as a consequence it has had numerous negative impacts on our lives to date. The first major issue was the growing number of neighbours. We went from dealing with two neighbours to dealing with 10 neighbours. As you can imagine, that brings many inconveniences such as noise, safety concerns, poor visual appeal and privacy issues. The most glaring of them all, is the issue of privacy! Everytime we sit outside in the garden, it feels like we are sitting with over a dozen strangers. We can always feel them glaring down at us as we try our best to enjoy our company under their prying eyes. Imagine not being able to fully enjoy the beauty of your garden for lack of privacy after a long day at work. The lack of privacy is also experienced from within our homes. At all times, we must keep our blinds closed, or we risk being spied on. All this has taken a toll on our mental health and has caused anxiety. To better understand please take a look at the images below, you will see their balcony towers over our backyard and clearly looks down on us. The proposed extension of the balcony may seem minor on paper, but in reality, the already extremely tall and large townhouse, which is very unusual for the neighbourhood, sticks out like a sore thumb. (Ennadouri witness statement)
- Zoned under the Etobicoke by-law 11737, probably a form of commercial residential.
- Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance. (Official Plan p 4-5)
- CENTRES: VITAL MIXED COMMUNITIES