Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
20 200787 S45 20 TLAB
Hossain (Re), 2024 ONTLAB 227
DECISION AND ORDER
Issuance Date: May 10, 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): Z. HOSSAIN
Applicant(s): ARC DESIGN GROUP
Property Address: 68 SUNNYPOINT CRES.
COA File No.: 20 111903 ESC 20 MV (A0030/20SC)
TLAB Case File No.: 20 200787 S45 20 TLAB
Hearing Date(s): June 20, 2023, July 7, 2023, August 10, 2023
Deadline Date for Closing Submissions/Undertakings: August 18, 2023; Reply to Closing Submissions August 25, 2023
Decision Delivered By: TLAB Panel Member: J. Tassiopoulos
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Owner/Appellant | Z. HOSSAIN | A. STEWART |
| Applicant | ARC DESIGN GROUP | |
| Party (TLAB) | CITY OF TORONTO | A. LO-WONG, M. HARDIEJOWSKI |
| Party (TLAB) | J. LANIGAN | |
| Party (TLAB) | A. BURT | |
| Party (TLAB) | P. STEINBERG | |
| Party (TLAB) | S. CHEUNG | |
| Party (TLAB) | J. MUSSELMAN | |
| Participant | D. ALLEN | |
| Participant | M. KIRBY | |
| Participant | M. J. ZIELINSKI | |
| Participant | D. M. DAVIS | |
| Participant | A. RINZLER | |
| Participant | P. WILSON | |
| Participant | K. Y. FAWCETT | |
| Participant | A. THOMAS | |
| Participant | G. TRENTADUE | |
| Participant | P. HOGG | |
| Participant | R. JONES | |
| Participant | J. CRAIG | |
| Participant | E. SHOON | |
| Participant | R. WEBSTER | |
| Participant | C. CARR | |
| Participant | T. KASANDA | |
| Participant | N. TAYLOR | |
| Participant | E. MCAULEY | |
| Participant | B. STOIKO | |
| Participant | M. VANDENBOSSCHE | |
| Participant | L. SOKOLOWSKI | |
| Participant | M. DEBEAUPRE | |
| Participant | G. MCAULEY | |
| Participant | I. BARCLAY | |
| Participant | M. MACLEOD | |
| Participant | D. RICCIO | |
| Expert Witness | A. YOUNG | |
| Expert Witness | J. BENCZKOWSKI | |
| Councillor | G. CRAWFORD |
INTRODUCTION AND CONTEXT
1The Hearing arises from an appeal by the Owner/Applicant of the September 23, 2020 decision of the City of Toronto (City) Committee of Adjustment (COA) to refuse the variances sought for the subject property located at 68 Sunnypoint Crescent.
2The purpose of the application is to demolish the existing house on the property and construct a new three storey residential dwelling, with an integral garage.
3The subject property is located south of Kingston Road and east of Brooklawn Avenue in the Cliffcrest Community on the west side of Sunnypoint Crescent. The property is designated 'Neighbourhoods' and zoned Single-Family Residential (S) in the Cliffcrest Community By-law No. 9396 and Residential Detached (RD) in the City of Toronto Zoning By-law No. 569-2013.
4The variances sought by the Applicant for 68 Sunnypoint Crescent was a matter that was considered over three Hearing days and closing submissions were submitted in writing on August 18, 2023.
5The original Hearing date, of April 28, 2021, was adjourned to permit for more discussion between the Parties to reach a potential settlement regarding the matter. The subsequent Hearing date, on June 4, 2021, was converted to a mediation session with the intent that the Parties could further discuss revisions to the Owner/Applicant's proposal, in order to reach a settlement regarding this matter. Following the mediation session, the Applicant's counsel suggested that time be provided for the consideration of comments made by the opposing Parties and Participants and that they would try to provide a revised proposal to address concerns expressed during the mediation session. At the adjournment of the mediation session, the Panel indicated that the Applicant provide any revised proposal by June 30, 2021 or earlier.
6A new proposal by the Applicant was not provided to the TLAB or the other Parties to the matter by June 30, 2021, or subsequently. The presiding Chair overseeing this matter, not having received any new material, requested TLAB staff to canvas all Parties and set a new Hearing date for this matter.
7After a lengthy pause in the proceeding with no revised drawings or further settlement discussions being conducted between the Parties, the proceeding was restarted on June 20, 2023, the first of three Hearing days.
8Counsel for the Owner/Applicant, Amber Stewart, indicated that "Without Prejudice" revised plans of the proposal had been sent to the City and Parties to the matter on April 20, 2023.
9A settlement was not reached based on the revised plans and Ms. Stewart indicated that the Owner/Applicant intended to proceed to a contested Hearing with the plans as they were submitted to the COA.
10In attendance at the Hearing were:
- Amber Stewart, legal counsel for the Owner/ Applicant and Expert Witness Jonathan Benczkowski (Land Use Planning);
- Ariel Lo-Wong and Marc Hardiejowski, legal counsel for the City of Toronto and Expert Witness Alan Young (Land Use Planning);
- Parties Paul Steinberg, Alan Burt, Susannah Musselman, and Janice Lanigan; and,
- Participant Cheryl Carr.
11The application is for the demolition of an existing dwelling and replace it with a new three storey residential dwelling with an integral garage, and seeks the following variances related to the proposal:
1. Chapter 10.20.30.40.(1)(A), By-law No. 569-2013
The maximum permitted lot coverage is 33% of the lot area.
The proposed lot coverage is 36.4% of the lot area.
2. Exception RD 1462.(A)(i), By-law No. 569-2013
The maximum permitted floor area is the lessor of 204 m² or 0.6 times the lot area (243.9 m²).
The proposed floor area is 0.78 times the lot area (316.15 m²).
3. Chapter 10.20.40.10.(4)(A), By-law No. 569-2013
The maximum permitted building height is 9 m.
The proposed building height is 9.72 m.
4. Chapter 10.20.40.10.(4)(C), By-law No. 569-2013
The maximum permitted number of storeys is 2.
The proposed dwelling is 3 storeys.
5. Chapter 10.20.40.50.(1)(B), By-law No. 569-2013
The maximum permitted area of a platform at or above the second storey is 4 m².
The proposed floor area of the third floor deck is 43.47 m².
THE LEGISLATIVE AND POLICY FRAMEWORK
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 for the subject area ('Growth Plan').
13Variance – 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
14Ordinarily, the Expert Witness for the Owner /Applicant would provide evidence first, however, the City requested that their Expert Witness, Alan Young, be allowed to provide evidence first, and Ms. Stewart agreed to the change in order of presenting evidence.
Evidence of Alan Young (Hearing Days 1 & 2)
15Mr. Young provided background on his 46 years planning experience working in both the public and private sectors and his own planning consultancy. Having reviewed his curriculum vitae and experience and confirming that there were no objections from other Parties, I qualified him to provide land use planning evidence.
16Mr. Young indicated that his analysis included the delineation of the geographic and immediate neighbourhood study area as prescribed in the Official Plan section 4.1.5. The outlined areas served as the basis for his analysis with respect to the variances sought and the assessment of the prevailing physical character of the neighbourhood in relation to the proposal (Exhibit #1, p. 27).
17The geographic neighbourhood analyzed was comprised of 566 properties. They are all zoned RD and are all residential detached dwellings. In the analysis of the geographic neighbourhood, he noted that 90.9% of the properties were less than or equal to 0.5 FSI and only 13 or 2.5% of the 528 properties he analysed were greater than 0.6 FSI. The proposed 0.78 FSI does not respect and reinforce the prevailing density of the broader geographic or immediate context.
18Mr. Young provided an analysis of properties with the highest densities and greater than 0.6 FSI, including 103A Eastville Avenue (0.81 FSI) and 40 and 42 Brooklawn Avenue (0.65 and 0.68 FSI consent approval), noting their approvals were specific to technical variance on the former and that the latter approval occurred on May 28, 2018, prior to the approval of OPA 320 and its emphasis on prevailing character. The final example of increased density was for 46 Sunnypoint Crescent which was refused by COA but approved by the TLAB and again was a decision made prior to the approval of OPA.
19The height variance sought for 9.72m where 9.0m is permitted does not respect and reinforce the prevailing height in the neighbourhood. He explained that of the 18 COA decisions he reviewed in the geographic area from the past 10 years, only seven of the properties include a height of 9.7m or greater.
20He opined that given both "lot coverage and building height variances are requested to facilitate the requested density increase heightens the concern that the requests, taken cumulatively, would result in a project that is not materially consistent with the physical character of the geographic neighbourhood." He also noted that of the properties in the immediate context area, the average FSI was much lower than the 0.34 FSI and the highest was that approved for 46 Sunnypoint Crescent at 0.68 FSI. The proposed 0.78 FSI variance would be the greatest in the immediate context area and more than double the average.
21Going through his photo documentation of the neighbourhood, he indicated that placing the proposed building in between the existing bungalows would be a startling contrast given the proposal would have an FSI much greater that the immediately neighbouring dwellings on 66 and 70 Sunnypoint Cres.
22Looking at the immediate context of the properties on Sunnypoint Crescent, he indicated the proposed variance for FSI would be the highest and exceeded the most recent FSI variance of 0.67 FSI TLAB approval for 46 Sunnypoint Crescent.
23He indicated that the 4m² balcony permitted by the by-law is to permit access from adjacent rooms in a dwelling, whereas the proposed roof deck with access from an internal elevator indicates a different level of access to the roof deck and, therefore, the activity that could occur.
24With respect to density, he indicated that RD Exception 197, which includes his quoting of the density regulations in RD Exception 1462, is applicable:
"(A) The maximum floor space index for a lot with a dwelling unit in a permitted building type is:
(i) the lesser of 0.6 times the lot area or 204 square metres, if the lot area is less than 408 square metres;
(ii) the lesser of 0.5 times the lot area or 279 square metres, if the lot area is 408 square metres to 697 square metres; and
(iii) 0.4 times the lot area if the lot area is more than 697 square metres"
(the regulation relevant to the subject application is underlined)
He noted that these "regulations assign density based on the size of the lots. The smallest lots are assigned the highest maximum density, while the largest lots are assigned the lowest maximum density." Mr. Young concluded that although the proposal would fall into the first category because its lot area is less than 408m2, and although 0.6 x the area is permitted, the gross floor area is capped at 204m2, which the proposal exceeds both in FSI and floor area. (Exhibit #1, p.9, para. 2.25 to 2.27).
25Mr. Young, in his review of relevant Official Plan policies, touched on the section 4.1.5 with respect to respecting and reinforcing the existing physical character of the neighbourhood and in particular the emphasis on:
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;
(emphasis added by A. Young)
He explained that in order to determine this, a quantitative analysis, in addition to qualitative, must be conducted to determine what is prevailing.
26In his reply to Mr. Benczkowski's Witness statement he noted the following:
- There seems to be confusion regarding intensification. Intensification by the City and in the PPS refers to intensification in the number of units or dwellings and not an increase in FSI.
- There are density targets in the Growth Plan, but this is not applicable to this application and its residential designation. The proposal does not meet the definition of intensification as it relates to the Growth Plan.
- There is the suggestion that a numerical analysis is a "numbers game" but Mr. Young indicates that it is difficult to suggest that the intent and purpose of the Official Plan is maintained unless this quantitative analysis is also undertaken to determine the prevailing physical character in the neighbourhood.
- The analysis conducted only looked at recent decisions in the immediate area when the immediate and geographic neighbourhood should have been analyzed.
Evidence of Paul Steinberg (Hearing Day 2)
27During the April 28, 2021 Hearing, Mr. Tom Kasanda, President of the Cliffcrest Scarborough Village SW Residence Association, indicated that Mr. Paul Steinberg would be representing and speaking on behalf of the other Participants in this matter. Mr. Steinberg had submitted a Motion to TLAB on May 3, 2021 to change his status from Participant to a Party in this matter, and the Panel Member subsequently acknowledged this change on May 17, 2021.
28He was affirmed to provide testimony to the matter and indicated that he was present on behalf of the 25 neighbours who opposed the proposal at the COA and indicated their objection to the local Ward Councillor.
29Mr. Steinberg explained that there are other houses on the street that were able to be built within what he described as generous zoning permissions and most only included minor overages.
30Mr. Steinberg then provided a photo review of houses in the immediate context and noted the houses on 62 and 64 Sunnypoint Crescent were rebuilds, more respectful of the immediate neighbourhood in design, only had a density variance and a height variance respectively, and are both two-storey homes. He also pointed out that they included balconies facing towards the park and lake but did not include rooftop platforms.
31He provided images of views of the lake and park from his front elevation to demonstrate that the view was not obstructed and provided great views that would only be slightly different than from the rooftop.
32He was concerned that the north side of the house was actually three storeys in height and that it presented as a three storey elevation to the adjacent neighbours to the north.
33Mr. Steinberg indicated that the rooftop platform size and easy access to it from the internal elevator would create the potential for large rooftop gatherings which would be disruptive to the immediate and adjacent neighbours, especially since the front portions of these properties facing onto the park and viewing the lake were areas that were used by those neighbours and those along the street.
34Mr. Steinberg explained that neighbours expressed concern about high winds which were common in the area, and how they might impact adjacent neighbours should a rooftop platform be permitted. He referenced the witness statement of James Musselman, the north neighbour, who spoke to incidents of high winds causing damage to property, houses, and vehicles in the neighbourhood. He expressed concern that if third floor outdoor furniture or other items and equipment present were "not nailed down" they could become projectiles that could cause similar damage.
Evidence of Jonathan Benczkowski (Hearing Day 3)
35During the process of qualifying Mr. Benczkowski to give expert evidence in land use planning and being previously qualified by the presiding Member and the TLAB in general, Ms. Lo-Wong questioned his ability to provide impartial and objective evidence regarding the submission, since he was a partner with the Applicant with respect to another property.
36Mr. Benczkowski indicated that he had been retained for 68 Sunnypoint Crescent in September 2020, prior to this business relationship, and that he relied on providing evidence as per his witness statement that also predated the relationship. As the presiding Member, I indicated that I would rely on Mr. Benczkowski's filing of an Acknowledgement of Experts Duty as well as his adherence to the OPPI requirements for a Registered Professional Planner (RPP), by membership, to swear independence to the TLAB and accept that the public interest is of paramount importance, subject to discipline by way of an accepted Code of Conduct.
37Ms. Stewart took Mr. Benczkowski through the OPPI's Standards of Practice with respect to independent professional judgement, and based on these responses and the fact that he had no financial interest outside of his retainer for the matter, the Member was satisfied that Mr. Benczkowski would provide the TLAB with objective expert planning evidence.
38He indicated that the massing proposed was considered carefully so that the proposed building would be perceived as a 2-storey building, especially at the rear elevation. The height variance is related to a small portion in near the midpoint of the roof where there is added massing to allow for the stairbox accessing the rooftop space.
39The geographic context and immediate context plan boundaries were generally consistent with the same areas that were considered by Mr. Young.
40As per Mr. Young's evidence, he indicated that there was no issue with respect to the conformance with provincial policy of the Growth Plan and the PPS.
41He indicated that the majority of the house was in compliance with other zoning requirement including setbacks, building length and front and rear yard requirement.
42Reviewing his photo evidence, Mr. Benczkowski concluded that what needs to be considered is the variety of dwelling types and architectural styles, and that the newer dwellings should be considered as part of the existing neighbourhood fabric. He noted that the proposal respects and reinforces the physical character of the immediate neighbourhood and meets the Official Plan policy that 'fits' within the neighbourhood.
43The stairbox which triggers the height variance of 9.72m, where 9m is permitted, is to accommodate a small portion of the dwelling, with stairs accessing the rooftop platform, which is setback 7.5m from the front wall. He explained that the front elevation was broken up and that these portions were both below the permitted 9m height and the rest of the proposal complied with height requirements.
44Mr. Benczkowski indicated that the proposed rooftop platform faced the streetscape and would not impact the privacy of adjacent rear yards. Its placement provided a positive interface to the street, while providing important amenity space for the dwelling.
45Referring to his analysis of the COA approved new residential dwellings in the geographic neighbourhood, he indicated that the majority of these houses, as per the proposal, required variances including for FSI, coverage and building height (Exhibit #6, p.32).
46Mr. Benczkowski opined that the proposal's rooftop amenity space was desirable to take advantage of the views to the park and lake and that it complied with OP policy 4.1.5 h):
"continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood"
and because the variances sought for height and roof top platform are all related to the desirable condition that this special landscape feature provides.
47Referring to his analysis of the approved new residential dwellings in the geographic neighbourhood, at the COA, he indicated that the majority of these houses required variances including for FSI, coverage and building height (Exhibit #6, p.32).
48He confirmed that in considering the proposal the immediate context should be considered more relevant than the broader context because of its unique location opposite the park space and that the proposal itself will 'fit' within this immediate context.
49Referring to OP policy 4.1.8, he indicated that the proposal is generally in compliance with the zoning standards and is compatible with the physical character of the neighbourhood.
50The variance sought for lot coverage of the building should be considered acceptable since the proposal is within the setback requirements and therefore does not pose an issue.
51With respect to the variance regarding the balcony size, Mr. Benczkowski indicated that the intention of that requirement was to regulate and address potential overlook and privacy with respect to adjacent and neighbouring rear yards. Based on this intention, the proposal's location and view towards the front of the dwelling is desirable and does not create overlook and privacy issues onto neighbouring rear yards.
52He opined that the proposal, both individually and cumulatively, met the four tests of the Planning Act, and it was minor because the variances sought were within the range of the other COA approvals variances sought within the broader neighbourhood and did not create any adverse impacts.
ISSUES AND ANALYSIS
53This matter in its early stages appeared to be one that could have been mediated but the Parties involved were not able to further engage each other to provide for resolution. Given the protracted nature of this matter, which included a mediation day, three Hearing days, numerous Participant Witness Statements, written closing / final arguments, and the time taken to complete this Decision, this turned into a daunting task. While it has taken time to finalize this Decision, this Panel member wanted to carefully consider the material and arguments put forward.
54The evidence given during the Hearing, which included cross examination of the expert witnesses and the closing arguments, provided ample analysis and opinion to consider. The evidence put varying weight of importance on the application of quantitative analysis in this situation. In my review of the evidence, both the qualitative and quantitative are considered depending on the variance sought. One approach or analysis, however, should be given more weight if it is more relevant to a specific variance. We consider all evidence and the sought variances holistically with the site specific nature and context. In the case at hand, I have carefully considered the variances sought and provide my findings in the following paragraphs.
55Overall, I preferred the evidence given by Mr. Young as it includes both a quantitative and qualitative analysis of the proposal. A quantitative analysis with respect to the notion of "prevailing" as it is outlined in OP policy 4.1.5 and a qualitative analysis of 'fit' within the immediate neighbourhood and whether it respects and reinforces the physical character. In many of these matters too much emphasis is sometimes placed on one approach or the other, but in this particular matter, equal weight needed to be placed because of the underlying zoning requirements, the location, context, and existing character of both the immediate and broader neighbourhood. Mr. Young's evidence was more thorough and balanced.
56Both Ms. Stewart and Mr. Benczkowski questioned the accuracy of Mr. Young's analysis of the broader geographic neighbourhood FSI since there was no City data that could provide that information except in the information that could be provide for COA approvals in the last 10 years. This is not an entirely accurate statement as part of the evidence Mr. Young provided was a table that illustrated his analysis and how it was undertaken. Yes, there may be some slight discrepancies and it may not be accurate to a decimal point, but the analysis does convey the general character of the FSI in the broader neighbourhood. When one considers Mr. Young's review of 528 lots which indicates that 480 lots (90.9%) have an equal of less than 0.5 FSI, 35 lots (6.6%) between 0.51 and 0.6 FSI and only 13 or 2.5% have an FSI greater than 0.6 FSI, the analysis cannot be ignored (Exhibit #3, para. 2.41 to 2.43). From this analysis, approximately 515 or 97.5% of the lots are at or below the permitted 0.6 FSI, and I find that it does provide compelling evidence with respect to prevailing density.
57I do not agree with Mr. Benczkowski that we cannot include these properties in the analysis of prevailing character because their approvals occurred prior to OPA 320. By that same argument then any of the COA or Tribunal approvals prior to OPA 320 cannot qualify as presenting part of the neighbourhood's existing physical character. All of these approvals over the course of time have an impact and contribute to the evolving nature of the neighbourhood's character. This line of argument suggests that a standard was set at some unknown era and that neighbourhoods are not a constantly evolving process.
58Mr. Benczkowski provided a qualitative analysis with respect to 'fit' in his testimony and a quantitative analysis of only the immediate and broader neighbourhood with respect to COA approvals in the past 10 years because, he noted, that it was the only way to get accurate information from the City. In particular, he was critical of the analysis undertaken by Mr. Young suggesting that because of the little new development in the study area the FSI would be skewed. That may be true but FSI will also be skewed if you are only considering rebuilt new homes which he indicated are typically larger in size and have a greater FSI. The fact remains that his testimony was only focused on those with COA approvals to determine appropriateness and did not provide an analysis of the neighbourhood study area. Furthermore, even in considering the immediate neighbourhood context that includes several newer buildings, Mr. Young indicated that 0.78 FSI would be the highest while the 314.72m² would be the second largest house on one of the smallest properties on Sunnypoint Crescent.
59During the cross-examination of Mr. Young, Ms. Stewart suggested that due to the predominance of original smaller buildings in the geographic neighbourhood, they would skew an analysis of the neighbourhood towards a smaller dwelling size, FSI and coverage than what is permitted within the current zoning designation. Ultimately what will be built, using the zoning permissions would be larger and be reflective of the future planned context for the neighbourhood. Mr. Young concurred with Ms. Stewart that the OP does note in the sidebar of policy 3.1.2 that in the neighbourhood analysis, the future planned context prevails where there is an inconsistency with the existing context, with respect to physical character and policies regarding to built form height and density. In section 3.1.2, the sidebar Existing and Planned Contexts (OP, p. 3-7) does note this, however, when we consider the "as-of-right" zoning for the property within this planned context, then we need to consider them as a whole, which includes Exceptions. With respect to the property, it is clear that the Exception to density regulation, as Mr. Young pointed out, RD Exception 197 also brings the density regulations of RD Exception
1462 that allows for:
"the lesser of 0.6 times the lot area or 204 square metres , if the lot area is less than 408 square metres" (Exhibit #1, para. 2.25)(my emphasis).
60Either of these applications of density on the property would indeed be greater than the majority of the dwellings in the existing context, however, when we also apply the specific conditions of the Exception as related to density, the variance sought is not minor. When applying the exception, it is not really a variance increase from 0.6 FSI to 0.78 FSI, which would be a 30% increase, it would actually be a variance from 204m² to 316.15 m² which is a density increase of almost 64%. The exception cannot be ignored as it was put in place to regulate potential overdevelopment of smaller lots within the zoning designation. The intention of the exception is to add another layer of regulation and performance standards that are particular to this property and zoning designation.
61During cross-examination, Ms. Stewart referred to a City staff report that was associated with the Council adoption of OPA 649 to permit multiplexes within the Neighbourhoods designation. It recommended amendments to the RD zoned neighbourhoods, to permit their introduction into these residential zones. She referred to staff's recommendation to remove the 4m² size limit for platforms, however, their recommendation clearly notes removing this limit "on platforms (decks and balconies) located at the second storey or higher for multiplexes withing the RD and RS zones" (my emphasis). This is clearly intended to accommodate such space as amenity areas for multiplexes and is not referring to the single-detached residential dwelling that was before the TLAB. Applying the easing of regulations that are intended for multiplex units to the current application appears as a leap in order to justify the variances sought. It is not particularly applicable to this proposal. During his testimony, Mr. Young further emphasized that although the Council adopted OPA 649 to allow multiplexes within the Neighbourhoods designation:
"The zoning by-law amendment relaxes development regulations to encourage the development of multiplexes, which constitute a form of needed housing. The relaxed standards do not apply to detached or semi-detached dwellings and therefore do not, in my opinion, have any bearing on the outcome of the subject appeal." (Exhibit #2, para. 4.19)
62With respect to the rooftop platform associated variance, the argument that there is no impact on privacy because the variance for the rooftop patio does not affect overlook or privacy because it is at the front of the dwelling and not at the rear, is only one criterion. I preferred Mr. Young's evidence that the large size of the proposed rooftop outdoor space will result in overlook impacts to the dwelling to the south and the large size proposed could accommodate large gatherings that could adversely impact neighbouring properties. Having visited the immediate context and reviewed the photo evidence of the immediate neighbourhood by both Mr. Young and Mr. Benczkowski, with the exception of 46 Sunnypoint Crescent, the other recently built residential properties have front balconies or platforms located at the front elevation on the first and second storeys and not on the rooftop. Not only is this out of character with what has been built recently, but it also appears excessive and well beyond the permissions of the ZBL. Mr. Benczkowski noted that the variance for the rooftop platform was necessary to take advantage of the views to the park and lake and provide a better street interface. He did not provide any opinion evidence as to why the rooftop platform needed to be the proposed size in order to access these views. There was no evidence provided as to why these views could not also have been achieved through a smaller rooftop platform, discreetly set further back on the rooftop, or through a balcony or porch on the front elevation. It appears from the testimony from Mr. Steinberg and from Participant Witness Statements that these views t were readily available from balconies, windows and front porches oriented towards the park and lake. Mr. Steinberg also provided photos from his dwelling that illustrated views to the lake were possible from the front elevation and were not obstructed.
63Furthermore, looking at the immediate context and the most recent developments that are indeed a departure in form, density, and scale to that of the bungalows along the streetscape, none of them, excluding 46 Sunnypoint Crescent, include as part of their form a rooftop amenity area or an outdoor space that are even approximate to the 43.47 m² area that is sought in the Applicant's variance. Mr. Young also mentioned that the ease of access by elevator and steps to the rooftop and its large size suggest that it could accommodate more intensive uses than a smaller platform area may have.
64Mr. Steinberg during his cross-examination of Mr. Benczkowski mentioned that many of the neighbours treat their front elevation as the amenity space that is typically the more desired part of their properties as it is located on the side that includes views to the park and lake. He mentioned that the neighbours south of the application property treat their front elevation as an important amenity space and that the proposed deck would create privacy and overlook impact to their property. Mr. Benczkowski noted that this is usually a concern with respect to the rear yard of the property. Generally, this is the way this type of impact is determined in the case of a majority of the properties, however, both Mr. Young and Mr. Benczkowski during their testimony indicated that the immediate context was very unique, and the analysis should treat the immediate context as the most relevant. If we are to follow this reasoning, then in this particular case and location it would be reasonable to consider the front elevation or yard to be the more or equally desirable side of the house on Sunnypoint Crescent. In fact, Mr. Benczkowski noted during his testimony that it was desirable to take advantage of the views to the park and lake and was a reason for the proposal's rooftop platform and variance. It seems logical then that the neighbours would want to also enjoy those same views and would consider this problematic and perceive the rooftop platform, extending up to the front wall, as an adverse impact. Mr. Steinberg also mentioned that these neighbours expressed the concern to him that this platform would impact the enjoyment of their property due to potential overlook and privacy.
65I find that given the reasons in the above paragraphs, the general intent and purpose of the ZBL is not maintained by the variances sought for density and for the rooftop platform size.
66With respect to the height variance, I accept the evidence of Mr. Benczkowski that this variance is primarily required for the stairbox and elevator access at the proposed centre of the dwelling and does not have a visual impact on the streetscape (see Figure 1 blue outlined area). Its location is setback 7.5m (24'-7") from the front wall and will not be perceived from the street. The substantial portion of the proposal height and massing range from 7.33 to 8.73m which are within the permitted 9m height. Therefore, the variances for both height and for number of storeys are indeed minor in this instance. The height variance is for a discrete and small portion of the proposed dwelling, there is no height variance sought to accommodate living space and the perceived three storey portion of the house is within the permitted height.
Fig. 1 - Excerpt from Final Argument of Amber Stewart, August 18, 2023
67During the cross-examination of Mr. Benczkowski regarding his interpretation of policy 4.1.5 h), he insisted that the criterion for special landscape feature was still relevant to the proposal because the proposed rooftop platform addresses this policy criterion by providing views onto the special feature and providing 'eyes on the street'. This is a simplification and misinterpretation of this policy. I agree with and prefer Mr. Young's evidence where he states that:
"The objective of the Official Plan's "special landscape" policy is to ensure that a development site does not adversely impact a special landscape feature or impede public views of such a feature…The proposed house design for the subject lands may take advantage of the view, but in my opinion that fact is irrelevant to the consideration of this particular criterion (4.1.5(h)). This criterion is not applicable to the subject application because the subject lands do not contain a special landscape feature themselves, and they are not positioned to impact views of the special landscape feature that does exist nearby."
(Exhibit #1, para. 7.3 and 7.4)
CONCLUSION
68The proposal cumulatively is an overdevelopment of the site and in particular the proposed density and platform size and location, cannot be construed as minor or respecting and reinforcing the physical character of the neighbourhood.
69For this reason and the reasons stated above, in paragraphs 53 to 67, the proposal does not satisfy all of the four tests under s. 45(1) of the Planning Act.
DECISION AND ORDER
70The Appeal respecting 68 Sunnypoint Crescent is dismissed and the variances requested are not authorized. The Committee of Adjustment decision dated September 23, 2020, is confirmed.
J. Tassiopoulos
Panel Member