Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
Date: 2024-03-15
22 134415 S45 12 TLAB
Morozov (Re), 2024 ONTLAB 200
DECISION AND ORDER
Issuance Date: March 15, 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: MICHAEL MOROZOV
Applicant: PMP DESIGN GROUP
Property Address: 218 VESTA DRIVE
COA File No.: 21 248503 STE 12 MV (A0026/22TEY)
TLAB Case File No.: 22 134415 S45 12 TLAB
Hearing Date(s): January 24, 2024 March 11, 2024
Decision Delivered By: TLAB Panel Member R. Kanter
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
M. Morozov
M. Mazierski
Applicant
PMP Design Group
Participant
J. Otis
Expert Witness
D. Igelman
INTRODUCTION AND CONTEXT
1218 Vesta Drive (the "Site") is subject to a lengthy history of previous applications for minor variances to the Committee of Adjustment, appeals to the Toronto Local Appeal Body (the "TLAB") and a review of the TLAB Decision.
2On January 24, 2024, I heard the current appeal to legalize and maintain the rear ground floor concrete platform deck and rear basement addition below the deck, which were constructed without the benefit of a building permit.
3The current appeal requires three minor variances:
Platform height of 1.79 metres above grade (1.2m permitted) with projection of 4.83 m from rear main wall (2.5m permitted) (the "Rear Deck Variance");
Building length of 21.82 m (17m permitted); and
Building depth of 21.82 m (19m permitted) (2 & 3 collectively constitute the "Building Variances")
4On February 1, 2024, the TLAB released an Interim Decision and Order (the "Interim Decision") with respect to the Site.
5The Interim Decision summarized the previous history of the Site (Paragraphs [1] - [11].
6The Interim Decision determined that the Building Variances are relatively common in the immediate context and the broader neighbourhood, and cause no significant adverse impact.
7The Interim Decision also held that the Rear Deck Variance maintains the general intent and purpose of the official plan and are minor. (Par. [52].
8Consequently, the continuation of the Hearing will focus on the impact of the Rear Deck Variance on the general intent and purpose of the Zoning By-law, particularly with respect to undue adverse impact, privacy and overlook, and their desirability for the neighbourhood. (Par. [54]).
9The Interim Decision ordered the Appellant and Participant to each propose measures to mitigate the impact of the Rear Deck Variance, and to communicate with each other prior with respect to their respective mitigation proposals prior to the resumption of the Hearing (Par. [62 – [64].
10The Hearing resumed on March 11, 2024. Mr. Mazierski, counsel for the Appellant/Applicant and Ms. Otis, the Participant, each confirmed that they had proposed and discussed mitigation measures as directed by the Interim Decision.
THE LEGISLATIVE AND POLICY FRAMEWORK
11Provincial 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.
12Provincial 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.
13Variance – Section 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 Planning 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.
14Conditions in Decision – S. 45(9)
Any authority or permission granted by the committee under subsections (1), (2), and (3) may be for such time and subject to such terms and conditions as the committee considers advisable and as are set out in the decision.
SUMMARY OF EVIDENCE
15Counsel for the Appellant/Applicant provided the following documentation concerning its proposed mitigation measures:
a. Revised Plans, received by the TLAB March 4, 2004 (the "Applicant's Mitigation Plans"); and
b. Photo showing additional privacy screening, received by the TLAB March 4, 2024 (the "Applicant's Mitigation Photo").
16Counsel for the Applicant described its proposed mitigation measures as follows:
a. Relocate the exhaust fan outlet pipe from its existing location north of the rear deck easterly to a location close to the northerly side door, as shown on the Applicant's Mitigation Plans – Basement Floor Plan A3;
b. Extend the privacy screen on the north side of the rear platform with oak slats. The location (but not the materiality) of the privacy screen is shown on Applicant's Mitigation Plans – North Side Elevation Plan A10, and in the Applicant's Mitigation Photo.
17The Participant owns and lives in a house immediately north of the site, with the municipal address of 33 Elderwood Drive ("33 Elderwood"). The Participant provided the following documentation concerning her proposed mitigation measures:
a. Video showing smoke emitting from the north wall of proposed rear deck;
b. Letter to M. Mazierski dated February 16, 2024; and
c. Letter to the TLAB with photos dated February 29, 2024 (collectively, the "Participant's Mitigation Measures").
18The Participant described its proposed mitigation measures as follows:
a. Removal of the rear deck;
b. Removal of the existing privacy wall in the central portion of the north wall above the rear deck;
c. Relocation of exhaust mechanism resulting in smoke emissions from the north wall of the Appellant's variances;
d. Planting of a screen of cedar trees not less than 15 feet (4.57m) in height from the beginning of the rear deck to the rear of the Appellant's lot, to be maintained by the Appellant.
19The Participant opposed the extension of the privacy screen, saying that it would further block her view and reduce the light on her property. She stated that she did not know whether the source of the emissions was the outlet pipe or the exhaust vent in the privacy wall.
20In reply, counsel for the Appellant/Applicant referred to photos in the Participant's Mitigation Measures to show that the smoke and fumes experienced by her originated close to the level of the floor of the rear deck, not from the exhaust vent in the centre of the existing privacy wall. Mr. Mazierski said that the exhaust vent in the middle of the privacy wall connected to a fireplace was rarely if ever used.
21Counsel also replied to the Participant's proposal concerning tree planting. He stated that the Applicant would agree to plant cedar trees on 33 Elderwood property, but he understood that location was not acceptable to the Participant.
22Counsel stated that the Applicant might plant smaller cedar trees on a more limited area of the Site north of the Rear Deck Variance. The Applicant might plant such trees to address the Participant's concern about privacy, but was not willing to plant them all the way to the rear of its property, which would address the visual appearance of the Rear Deck Variance, rather its privacy impact.
23Counsel referred to the northerly elevation of a house and deck that could be built as of right, entered as part of the Updated Disclosure Document in the previous day of this Hearing (Exhibit 2 at page 1041). He submitted that the Appellant could have built a deck closer to the ground with walls further west on the Site as of right, which would have had a greater visual impact on the Participant.
24Counsel for the Appellant/Applicant stated that he was advised by his client's landscape architect that cedar trees 15 feet high, close together to provide a privacy screen, would not grow in the narrow area between the foundation of the basement extension and the retaining wall under the boundary fence, shown in the Applicant's Mitigation Photo.
25The Participant said that she was informed that pyramidal cedar trees or beech trees at a height of 15 feet could be planted and would grow on the Site.
ISSUES AND ANALYSIS
26As stated above, the main issue in this portion of the Hearing is the impact of the Rear Deck Variance with respect to undue adverse impact, privacy and overlook.
27Smoke and/or fumes emitted from the rear deck clearly constitutes an adverse impact. The Appellant offered to mitigate the concern in large part by relocating the outlet pipe. I will incorporate that relocation in a condition. However, I will add a condition to also relocate the exhaust vent away from the centre of the privacy wall.
28The increased height and length of the rear deck also affect the privacy enjoyed by the Participant. However, the reduction in her privacy is mitigated by the existing boundary fence, and occurs primarily in the area immediately north of the rear deck, rather than along the entire north lot line to the rear lot line of the Site.
29It is unfortunate that neither the Appellant nor the Participant provided expert evidence concerning the height of trees which might provide an additional screen between the rear deck and 33 Elderwood. There did not appear to be disagreement between counsel and the Participant that trees of some height, less than the 15 feet requested by the Participant, could likely be transplanted to, and would grow on the Site.
30I will impose a condition that cedar, beech or other appropriate trees with a height of at least 3 m (9.8 feet) be planted on the Site north of the Rear Deck Variance. Trees of that height will provide an additional screen approximately 1.2 m (4 feet) higher than the floor of the rear deck.
31I am imposing these conditions to increase privacy and reduce undue impacts resulting from the Rear Deck Variance.
CONCLUSION
32I conclude that the Building Variances and the Rear Deck Variance requested, individually and cumulatively, meet the statutory tests under s. 45(1) of the Planning Act for minor variances, providing they are subject to the conditions, herein, as set out in this Final Decision and Order.
DECISION AND ORDER
33I order that the appeal be allowed, and the Variances set out in the Zoning Notice dated November 18, 2021, are authorized, subject to the following conditions:
a. That the Appellant/Applicant relocate the outlet pipe, shown in gray on the Applicant's Mitigation Photo, to a location close to the northerly side door, as shown on the Applicant's Mitigation Plans – Basement Floor Plan A3;
b. That the Appellant/Applicant relocate the exhaust vent, shown in the middle of the existing privacy wall on the Applicant's Mitigation Photo, to a location no higher above the ground than the relocated outlet pipe;
c. That the Appellant/Applicant plant and maintain a screen of cedar, beech or other appropriate variety of trees with a height of at least 3m north of the rear wall of the house on the Site westerly to the westerly end of the staircase from the rear deck, a distance of approximately 6.10m, as shown on the Applicant's Mitigation Plans, North Side Elevation, A-10.
R. Kanter
Panel Member