Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-05-22

23 199445 S53 03 TLAB,

23 199446 S45 03 TLAB,

23 199447 S45 03 TLAB,

23 199448 S45 03 TLAB

Morreale (Re), 2024 ONTLAB 229

DECISION AND ORDER

Issuance Date:

May 22, 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")

Appellant(s):

L. C. MORREALE

Applicant(s):

LEMCAD CONSULTANTS

Property Address:

175 LAKE SHORE DR

COA File No.:

23 116886 WET 03 CO (B0012/23EYK),

23 116897 WET 03 MV (A0176/23EYK),

23 116898 WET 03 MV (A0177/23EYK),

23 116899 WET 03 MV (A0178/23EYK)

TLAB Case File No.:

23 199445 S53 03 TLAB,

23 199446 S45 03 TLAB,

23 199447 S45 03 TLAB,

23 199448 S45 03 TLAB

Hearing Date(s):

January 22, 2024, May 15, 2024

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

LEMCAD CONSULTANTS

Appellant

L. C. MORREALE

A. STEWART

Party (TLAB)

C. RUSSELL

Party (TLAB)

R. B. RUSSELL

M. COOK

Party (TLAB)

A. GIRAUDY

Participant

P. D GIRAUDY

Participant

M. JAVIER

Participant

E. E. CARL

Participant

E. PUNISKA

Participant

C. BUCKLEY-FERGUSON

Participant

K. ADAMS

Participant

E. A. CARL

INTRODUCTION AND CONTEXT

1Laura Caterina Morreale (the "Appellant") is the owner of the property municipally known as 175 Lake Shore Drive (the "Property").

2The Appellant brought consent and variance applications to the Committee of Adjustment (the "Committee") for the purpose of dividing the Property into three new lots and securing variance relief to construct three new detached dwellings on those lots.

3The Committee refused those applications and the Appellant filed appeals with respect to those refusal decisions to the Toronto Local Appeal Body (the "Tribunal").

4At the originally scheduled hearing date of January 22, 2024, the Tribunal was advised by the Parties that settlement discussions were underway and counsel for the Appellant advised that she was optimistic that with further discussion and time, a settlement was likely to be reached. On the basis of that assertion, concurred in by counsel for the next-door neighbour Parties, the Tribunal adjourned the hearing, to be brought on again for settlement hearing purposes on advice from counsel for the Appellant.

5The Tribunal was so advised and the hearing session on May 15, 2024, did proceed as a settlement hearing.

6As will be further detailed in the Summary of Evidence, the proposal presently brought forward was modified so that the Property is to now be divided into two lots, a number of heads of variance relief have been withdrawn as no longer necessary and the remaining heads modified to reflect the reduced need for relief.

THE LEGISLATIVE AND POLICY FRAMEWORK

7Provincial Policy – S. 3, Planning Act

A decision of the Tribunal 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').

8Consent – S. 53, Planning Act

The Tribunal must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Planning Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Planning Act. These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2 of the Planning Act;

(b) whether the proposed subdivision is premature or in the public interest;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

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

(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;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan's design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).

9Variance – S. 45(1), Planning Act

In considering applications for variances from the Zoning By-laws, the Tribunal must be satisfied that the application meets 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.

SUMMARY OF EVIDENCE

10Consent evidence was put before the Tribunal by the planner retained by the Appellant, Franco Romano. Mr. Romano has appeared before the Tribunal on many occasions and, as in those cases, he was qualified to offer opinion evidence on land use planning matters in this proceeding.

11Mr. Romano was retained after the decision of the Committee. He would have participated in the settlement discussions. Upon inquiry by the Tribunal, he advised that the proposal now before the Tribunal is an improvement over the proposal which was before the Committee.

12Mr. Romano provided an overview of the Property and of the area. The Property is located north of Lake Ontario and east of Colonel Samuel Smith Park, within the New Toronto area of the former City of Etobicoke.

13The Property is located on the southwest side of Lake Shore Drive, a local street that runs generally parallel to the Lake Ontario shoreline. Lake Shore Drive is discontinuous. The road network in the area is grid and non-grid. Where the road network is non-grid, including curvilinear or angled alignments, as is the case here, lots are irregular shaped. The dimensions of lots are also not uniform or homogeneous. Rather, there is a broad array of lot sizes including a generous supply of lots that are qualitatively urban or compact to modest-sized, and those which are up to 12m in frontage. Mr. Romano concludes that this is a prevailing physical characteristic of the neighbourhood. It is a frequently occurring characteristic to find differently shaped, smaller, and larger lots located within the area.

14The official plan designation for the residential lands within this area is Neighbourhoods.

15For the purposes of evaluating the proposal, Mr. Romano delineated a broader context study area. Consistent with Official Plan policy 4.1.5 broader context considerations related to zoning, dwelling type and scale, lot fabric, street pattern, connectivity, natural and human-made boundaries. His broader context study area is bounded by Lake Ontario to the south, Colonel Samuel Smith Park to the west, Morrison Street to the north, and Fifth Street to the east. The broader context study area is representative of the neighbourhood located between Lake Ontario and Lake Shore Boulevard West.

16The broader context study area consists of 633 residential properties. The applicable residential zoning is largely RD, RM and RA (detached, multiple and apartment, respectively). The Property has an RM zoning.

17The immediate context consists of 10 properties within the same block as the Property. The block opposite the Property consists of two properties although the City's information provides three municipal addresses.

18The immediate adjacent block(s) context consists of 63 properties that are located along Lake Shore Drive and Emerald Crescent.

19The Property is the largest lot within the immediate context, and one of the largest lots in the surrounding area. There are none within the immediate adjacent context that are as large.

20With respect to the proposed severance, Mr. Romano confirms that the revised proposal results in two lots that are zoning by-law compliant. The two lots will have lot frontages of 11.4m and lot areas of 328.6m2 and 332.3m2 respectively. The zoning by-law requires a minimum 7.5m lot frontage and 230m2 lot area.

21With respect to the proposed detached dwellings, Mr. Romano advises that the revised proposal: i. Eliminates previous variances for lot frontage, lot area, front yard setback, building height and the number of rear wall platforms at or above the second storey; ii. Reduces the floor space index (FSI) variance; iii. Requires variances for building length, wall height, and parking space width; and iv. Appropriately addresses the issues raised during the application processing, including revisions to protect all city trees.

22Mr. Romano provided the Tribunal with a canvas of the provisions of Policy 4.1.5 and with the benefit of lot and building data provided by the City, he concluded that the revised proposal represents a reasonable, gradual form of development that fits with the existing physical character of the neighbourhood and that is in keeping with the overall physical character of the entire neighbourhood.

23In keeping with the policy language of the Official Plan, he is of the view that the revised proposed development will respect and reinforce the general physical patterns in the Neighbourhood, respecting and reinforcing the existing physical character.

24The specific modified variance relief now required is as follows:

Standard Requirement Part 1 proposed Part 2 proposed

Floor Space Index 0.6 (199.38 m2) 0.78 (255.69 m2) 0.77 (255.69m2)
Building Length 17 m max. 17.35 m 17.39 m
Wall Height 7.0 m max. 8.38 m 8.38 m
Parking Space Width 2.90 m min. 2.80 m 2.80 m

25Mr. Romano addressed the four tests of Section 45(1) of the Planning Act and concluded that, within this specific and area context, the revised variances are minor, are consistent with general intent and purpose of the official plan, are consistent with the general intent and purpose of the Zoning By-law and are desirable for the appropriate use and development of the Property.

26Mr. Romano also canvassed the considerations for which the approval authority must have regard in connection with the proposed severance as set forth in Section 51(24) of the Planning Act and offered his opinion that the proposal satisfies each criterion individually and cumulatively.

27Finally, Mr. Romano proffered the opinion that the proposal was consistent with the PPS and conforms with the Growth Plan.

28Mr. Romano acknowledged to the Tribunal that it would be appropriate for the consent to be made subject to the Tribunal's standard conditions applicable to provisional consents.

29Mr. Romano also recommended that the variances as modified be subject to a set of conditions which stem from the comments communicated by City department staff to the Committee, which will be detailed in the Tribunal's Order.

30The Tribunal took in as Exhibits in the hearing the following items: Exhibit 1 - Minutes of Settlement dated May 14, 2024 amongst Laura Caterina Morreale, Catherine and Robert Bruce Russell, and Angela and Paul Giraudy; Exhibit 2 - Witness Statement of Franco Romano; and Exhibit 3 - Plans prepared by Lemcad Consultants dated January 25, 2024 with respect to Parts 1 and 2.

ISSUES AND ANALYSIS

31The Tribunal is satisfied, based upon the written and oral evidence of Franco Romano and upon the submissions of counsel for the Parties, that the proposal as modified to divide the Property into two lots and to authorize the requested variances as modified is appropriate and in keeping with the statutory tests.

32The Tribunal is also satisfied that this is an appropriate case for exercise of the Tribunal's jurisdiction to authorize the modified consent and variances on the basis of their being minor modifications in the context, in accordance with that authority as expressed in Sections 53(35) and 45(18.1) of the Planning Act, and for exercise of its further authority that this is not a case which requires further notice as referenced in Sections 53(35.1) and 45(18.1.1) of the Planning Act.

CONCLUSION

33For the reasons expressed above, the appeals will be allowed, and the requested consent and variances as modified before this Tribunal will be approved.

DECISION AND ORDER

34The Tribunal ORDERS THAT the Appellant's appeal with respect to the consent application is allowed and, as modified before the Tribunal, provisional consent is given to the lot division depicted as Parts 1 and 2 on the draft reference plan of survey filed in the proceeding as prepared by Vladimir Dosen Surveying dated January 18, 2024, subject to satisfaction of the following conditions:

(1) 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.

(2) Municipal numbers for the subject lots, blocks, parts, or otherwise indicated on the applicable deposited reference plan of survey shall be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services.

(3) One electronic copy of the deposited 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.

(4) One electronic copy of the deposited 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.

(5) 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.

(6) 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.

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

35The Tribunal FURTHER ORDERS THAT the variance appeal with respect to the lands depicted as Part 1 on the draft reference plan of survey be allowed and the variances, as modified before the Tribunal, be approved as follows on the conditions which are noted thereafter:

175A Lake Shore Drive – Part 1

Section 10.80.40.10(1), By-law 569-2013

In the RM zone, the permitted maximum height of the exterior portion of main walls for

a detached house or a semi-detached house is the higher of 7.0 metres above

established grade or 2.5 metres less than the permitted maximum height in regulation

10.80.40.10(1), for either (A) or (B) below: (A) all side main walls, for at least 70 percent

of the total width of each side main wall; or (B)(i) all front main walls and all rear main

walls, for at least 60 percent of the total width of all front main walls and all rear main

walls if the building is on a lot with a lot frontage of 12.0 metres or more.

In this case, the proposed height of all side main walls, for at least 70 percent of the

total width of each side main wall is 8.38 meters. Also, the proposed height of all front

main walls and all rear main walls, for at least 60 percent of the total width of all front

main walls and all rear main walls, is 8.38 meters.

Section 10.80.40.40.(1), By-law 569-2013

The permitted maximum floor space index is 0.6 times the area of the lot: 199.38 m2.

The proposed floor space index is 0.78 times the area of the lot: 255.69 m2.

Section 10.80.40.20.(1), By-law 569-2013

In the RM zone, the permitted maximum building length for a detached house is 17.0 m.

The proposed building length is 17.35 m.

Section 200.5.1.10.(2), By-law 569-2013

The minimum required parking space must have a minimum width of 2.9 m (5.8 m for

two side by side parking spaces).

The proposed parking spaces will have a width of 2.8 m in width each (5.59 m for two

side by side parking spaces).

Conditions of Minor Variance Approval

The dwellings shall be constructed substantially in accordance with the following plans, prepared by Lemcad Consultants and dated January 25, 2024:

a. Part 1 (175A): Proposed Site Plan A1, Proposed Front (North Elevation) A6,

Proposed Rear (South) Elevation A7, Proposed Side (East) Elevation A8, and

Proposed Side (West) Elevation A9.

The Owner shall submit a complete application for a permit to injure or remove a City

owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees

on City Streets.

The Owner shall submit a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.
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 Street Tree Planting Payment is $583/tree.
The Owner shall submit revised site plan(s) with the following revisions and notations to the satisfaction of the Engineering and Construction Services and Transportation Services, at no cost to the City;

a. Illustrate the existing and proposed grades at all corners along the property

boundary;

b. Revise the site plan to illustrate a positive slope of a minimum 2% to a maximum

4% that will be maintained on each of the proposed driveways, as measured

between the proposed garage door entrance to the curb line of Lake Shore Drive;

c. Clearly illustrate the existing double catch basins on the Lake Shore Drive Right-

Of-Way near to the site are protected with sediment traps during construction.

d. The Site Plan drawings must be revised to explicitly dimension and identify on each

applicable Site Plan drawing all portions of the existing site driveway and curb cut

that will no longer required and will be closed.

e. The Site Plan drawings must be revised to explicitly identify on each Site Plan

drawing the limits of the proposed driveway and proposed curb cut for each lot,

both of which should match the width of the respective integral garage.

f. Illustrate on the Site Plan the existing and new location of the two utility poles and

utility box within the Lake Shore Drive public boulevard so that they are situated

a minimum of 1.0 metres away from the edge of each proposed driveway.

g. The following notations must be included on revised site plan drawings:

i. "All portions of the existing site driveway and curb cut that are no longer

required must be closed and restored in accordance with applicable City

standards to the satisfaction of the Transportation Services Division, and

at no cost to the City of Toronto."

ii. "The owner must obtain all required permits from the Permits and

Enforcement unit of Transportation Services prior to commencing

construction, which may include but not be limited to permits associated

with payment of a Municipal Road Damage Deposit, re-location of any

utilities, etc. The owner must contact the Permits and Enforcement unit of

Transportation Services in order to obtain exact details regarding all

required permits."

iii. "All work within the Lake Shore Drive public right-of-way, including the

relocation of any utility poles, traffic signs, etc. must be done to the

satisfaction of the Transportation Services Division, and at no cost to the

City of Toronto."

iv. "The owner will be required to obtain and submit written approval from

the Parks, Forestry and Recreation Division with respect to any applicable

tree removal and/or tree protection requirements."

v. "The owner will be required to obtain and submit written approval from

the applicable utility company which confirms that any new location for

the utility poles within the Lake Shore Drive public right-of-way."

h. The proponent must obtain and submit written approval from the applicable

utility company stating that the new location of the utility poles and box identified

under Condition No. 2 (f) are acceptable.

i. The proponent must obtain and submit written approval from the Parks, Forestry

and Recreation Division with respect to any applicable tree removal and/or tree

protection requirements.

36And the Tribunal FURTHER ORDERS THAT the variance appeal with respect to the lands depicted as Part 2 on the draft reference plan of survey be allowed and the variances, as modified before the Tribunal, be approved as follows on the conditions which are noted thereafter:

175B Lake Shore Drive – Part 2

Section 10.80.40.10(1), By-law 569-2013