Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-06-06
23 224665 S45 02 TLAB
Jones (Re), 2024 ONTLAB 231
DECISION AND ORDER
Issuance Date:
June 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):
R. JONES
Applicant(s):
DESIGN PLAN SERVICES INC
Property Address:
413 THE KINGSWAY
COA File No.:
23 187379 WET 02 MV (A0328/23EYK)
TLAB Case File No.:
23 224665 S45 02 TLAB
Hearing Date(s):
February 29, 2024, March 18, 2024, April 4, 2024
Decision Delivered By:
TLAB Panel Member B. Martin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
DESIGN PLAN SERVICES INC
Appellant
R. JONES
M. MAZIERSKI
Party (TLAB)
CITY OF TORONTO
M. LAFORTUNE CITY OF TORONTO
Party (TLAB)
M. DUSK
Participant
A. ANDERSON
Participant
C. GILMOUR
INTRODUCTION AND CONTEXT
1On July 27, 2023, the Appellant was issued an Order to Comply (“OTC”) by the Toronto Building Division with respect to an unauthorized rear yard ancillary structure (a cabana) that had been constructed. The non-compliance was that the ancillary structure height was above the four metres as required under Zoning By-law 569-2013, Section 10.5.60.40(2).
2A previous Committee of Adjustment decision A0251/21EYK dated July 13, 2021 (the “previous decision”), conditionally approved a series of variances for the site related to the primary dwelling. A variance for ancillary structure height was not requested by the Applicant. The approved Committee of Adjustment plans for the previous decision depicted a rear yard “pavilion” with an as-of-right height of four metres.
3At its meeting on Thursday, October 26th, 2023, the Committee of Adjustment for the City of Toronto refused an application for a minor variance that would have legalized the ancillary structure as constructed.
4The decision of the Committee of Adjustment was appealed by to TLAB by the Appellant.
5Mr. M. Mazierski appeared as counsel for the Appellant R. Jones. Mr. Mazierski called Mr. A. Milne-Price as a qualified expert to give opinion evidence in land use planning.
6The City of Toronto was represented by Ms. M. LaFortune. Ms. LaFortune called Mr. A. Sochia as a qualified expert to give opinion evidence in land use planning.
7The owner of the property at 411 The Kingsway, Mr. M. Dusk. appeared as a Party to the hearing.
8Participant status was granted to Ms. A. Anderson on behalf of the Kingsway Local Residents Association, and to Ms. C. Gilmore, the owner of the property at 409 The Kingsway.
9Prior to the hearing, the Appellant submitted a revised set of drawings to those considered by the Committee of Adjustment. The proposed height of the ancillary structure was reduced from the originally requested 7.55 meters to 5.72 metres by removing a cupula feature that topped the ancillary structure.
THE LEGISLATIVE AND POLICY FRAMEWORK
10Provincial 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.
11Provincial 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.
12Variance – 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
13The Subject Property is located within the neighbourhood referred to as “Edenbridge-Humber Valley” within the City of Toronto.
14The Subject Property is in an area designated Neighborhoods in the City of Toronto Official Plan.
15The Subject Property is regulated by City of Toronto Zoning Bylaw No. 569-2013. It is zoned RD (f15.0; a555; d0.45) (x28).
16The Subject Property is generally rectangular in shape, with a frontage of approximately 23.48 metres and a depth of approximately 93.49 metres. The property is characterized by a preconstruction grade difference of 5.13 metres from the front property line (150.59 geodetic) to the rear property line (145.46 geodetic).
17The Subject Property is located on the north side of The Kingsway, backing onto St. George’s Golf and Country Club. Neighbouring properties to the east and west are 411 The Kingsway and 415 The Kingsway.
18The Subject Property is currently occupied by a three-storey single detached dwelling, with a walkout basement, and a 1-storey ancillary structure located at the rear of the property, at the same elevation as the walkout basement.
19The existing ancillary structure is 1 storey with a sloped/mansard roof design and an architectural feature (‘Cupola’) located at the top of the roof. The revised drawings submitted by the Appellant in advance of the hearing did not include the Cupola architectural feature at the top of the proposed roof. The proposal, as amended, retained a sloped/mansard roof design.
20In City of Toronto Official Plan Policy 4.1.5, City Council requires the delineation of a neighbourhood in proximity to a proposed development for the purpose of determining relative physical character when addressing the statutory tests under section 45(1) of the Planning Act. Criteria for consideration includes zoning, prevailing dwelling type and scale, lot size and configuration, street pattern, pedestrian connectivity and natural or human made dividing features.
21The Neighbourhood Study Area boundaries presented by the two expert witnesses in land use planning did not match.
22Mr. Socia’s Neighbourhood Study Area was prepared using an accepted TLAB principle of a “five-minute walk”. His neighbourhood was generally bounded by The Kingsway and St. Georges Golf and Country Club to the north, Anglesey Boulevard and Humber Valley United Church to the South, Humber Valley Village Junior Middle School and the Humber Valley Park to the east, and Ellington Avenue to the West.
23Mr. Socia’s Immediate Context included 34 properties, including the Subject Property. These 34 properties are located within the same block and the block opposite of the proposed development between Islington Avenue West, Edenbridge Drive/Wimbleton Road.
24Mr. Milne-Price’s Neighbourhood Study Area was St. Georges Golf Course to the north, Royal York Road to the east, Islington Avenue to the west, and Chestnut Hills Parkway to the south.
25Both Neighbourhood Study Areas consist of mostly single-detached residential dwellings that are typically one to two storeys in height with sloped roofs. The lots in the neighbourhood are generally similar in size in terms of frontage and depth, however there is some variation in lot sizes specifically regarding lot depths. The lots located on the north side of the Kingsway, on the same block as the Subject Property, feature a rear lot line that backs onto the St. George’s Golf Course and are generally larger than the other typical lots in the neighbourhood, particularly with respect to lot depth.
26Prior to the approval of Zoning By-law 569-2013, ancillary structures in the Neighbourhood Study Areas were regulated by the former City of Etobicoke Zoning By-law, which used a slightly different method of calculating ancillary structure height. Specifically, the former zoning by-law relied on the average of the natural, unaltered grade at the intersection of the side lot lines and the minimum front yard setback, as opposed to Zoning by-law 569-2013 that uses the average grade on all sides of the structure.
27Mr. Milne-Price researched all minor variance applications within his Neighbourhood Study Area over the last 14 years. The database of decisions did not include applications for minor variance pursuant to the former City of Etobicoke Zoning By-law, meaning a comparison of requested minor variances to increase the height of an ancillary structure could not be prepared.
28The database did identify that a minor variance to increase the maximum wall height of an ancillary structure from 2.5 metres to 2.88 metres was approved for the property at 423 The Kingsway and a minor variance to increase the maximum building height of an ancillary structure from 4.0 metres to 4.4 metres was approved for the property at 8 Ripplewood Road.
29With the use of drone photography, Mr. Milne-Price was able to show the rear yards of several properties in the Immediate Context area of his Neighbourhood Study Area.
30Each of the properties at 411 The Kingsway, 421 The Kingsway, 423 The Kingsway, 425 The Kingsway and 431 The Kingsway had ancillary structures in the rear yard that looked close to 4 metres in height.
31The opinion evidence of Mr. Milne-Price was that the requested ancillary structure height of 5.72 metres is compatible with existing ancillary structures in the Neighbourhood Study Area, the approved minor variance would not create any undue adverse impacts on surrounding properties and the requested minor variance would not de-stabilize the Neighbourhood Study Area.
32It was his expert opinion in land use planning that the proposed minor variance meets the four tests pursuant to Section 45(1) of the Planning Act.
33Mr. Socia’s opinion evidence was that an ancillary structure 5.72 metres in height was not compatible with the existing physical character of other ancillary structures in his Neighbourhood Study Area.
34Mr. Socia’s opinion evidence was that an ancillary structure 5.72 metres in height represented a 43% numerical increase above the permitted height of an ancillary structure in the Zoning By-law 569.2013.
35Mr. Socia’s opinion evidence was that an ancillary structure 5.72 metres in height will have a comprehensive visual impact on neighbouring properties because of perceived height. For instance, the proposed 5.72 metre ancillary structure impact varies depending on your position relative to the structure, ranging from 4.876 metres (south) to 6.376 metres (north). Furthermore, the proposed cabana would appear notably larger than an as-of-right ancillary structure which would be perceived as ranging from 3.16 metres (south) to 4.66 metres (north).
36Mr. Socia’s opinion evidence was that an ancillary structure 5.72 metres in height is not desirable because it would not maintain a low-profile ancillary structure that consistent pattern of development between ancillary structures on adjacent properties and in the Immediate Context.
37It was his expert opinion in land use planning the proposed minor variance did not meet the four tests set out under Section 45(1) of the Planning Act.
38Mr. Dusk, Ms. Anderson and Ms. Gilmour all spoke against the requested minor variance by offering opinions that the minor variance did not meet the four tests set out under Section 45(1) of the Planning Act.
ISSUES AND ANALYSIS
39Both expert witnesses agreed that the geographic neighbourhood is dominated by single detached dwellings. The discrepancy between the approach each used to describe the Neighbourhood Study Area does not overly concern me because the performance standards for ancillary structures are the same in all Residential Zones.
40Section 10.5.60.40 (2) of Zoning By-law 569-2013 (the regulation of height) applies to all Residential Zones across the City of Toronto. It is one of those rare zoning by-law performance standards that is truly “comprehensive” and “blunt”, and so it should be.
41I must accept the expert opinion evidence of Mr. Socia over Mr. Milne-Price regarding the requested minor variance height of 5.72 metres for the proposed ancillary structure at 413 The Kingsway. The minor variance does not meet the four tests set out under Section 45(1) of the Planning Act.
CONCLUSION
42A hearing of the Toronto Local Appeal Body was held on February 29, 2024, March 18, 2024, and May 4, 2024, to consider an appeal by Mr. R. Jones to a decision by the Committee of Adjustment for the City of Toronto for a minor variance in height for an existing 7.55 metre high ancillary structure on the property at 413 The Kingsway.
43Prior to the commencement of the hearing, the Appellant provided revised plans and drawings to TLAB to show an ancillary structure 5.72 metres in height rather than the 7.55-metre-high ancillary structure refused by the Committee of Adjustment.
44Expert evidence in land use planning from two qualified witnesses was heard over the 3-day period.
45One Party and two Participants to the hearing spoke against the requested minor variance.
46After a thorough review of the expert witness testimony, and the comments provided by the Party and Participants, I have accepted the evidence of Mr. Socia over Mr. Milne-Price, thereby concluding that the requested minor variance for an ancillary structure height of 5.72 metres does not meet the four tests set out under Section 45(1) of the Planning Act.
DECISION AND ORDER
47The Appellant’s appeal is dismissed.
B. Martin
Panel Member