Slaby, Toronto Condo Plan 1468 v. Terra Firma Homes Inc., 2024 ONTLAB 233

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-06-14

21 202909 S45 04 TLAB

Slaby, Toronto Condo Plan 1468 v. Terra Firma Homes Inc., 2024 ONTLAB 233

DECISION AND ORDER

Issuance Date:

June 14, 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):

S. SLABY, TORONTO CONDO PLAN 1468

Applicant(s):

BERNARD H WATT ARCHITECT

Property Address:

307 RIVERSIDE DR.

COA File No.:

21 124504 STE 04 MV (A0291/21TEY)

TLAB Case File No.:

21 202909 S45 04 TLAB

Hearing Date(s):

January 25, 2022, October 4, 2022, October 20, 2022, October 24, 2022, December 13, 2022, December 19, 2022, March 21, 2023, April 17, 2023

Decision Delivered By:

TLAB Panel Member S. Makuch

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

S. SLABY

W.H. ROBERTS

Appellant

TORONTO CONDO PLAN 1468

P. SMIRNOV

Applicant

BERNARD H WATT ARCHITECT

Party (TLAB)

TERRA FIRMA HOMES CORPORATION

A. STEWART

Participant

J. HARRISON

Participant

S. CELSI

Participant

M.I. DUDU

Participant

L. DIFRANCESCO

Participant

M. DUKIC

Participant

P. TRINZ

Participant

B. ARCHER

INTRODUCTION AND CONTEXT

1This is an appeal from a decision of the Committee of Adjustment which approved nine variances to permit the conversion of an existing three-storey six-unit apartment building to a three-storey 13-unit apartment building by constructing a rear three-storey addition and converting below grade parking to residential units.

2The variances approved by the Committee are as follows:

1.Chapter 10.10.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index of an apartment building is 1 times the area of the lot (824.96 m2) in an R zone and 0.35 times the area of the lot (208.98 m2 ) in an RD zone, for a total of 1,033.94 m2. In this case, the apartment building will have a total gross floor area of 1,171.10 m2.

2.Chapter 10.10.40.30.(1)(B), By-law 569-2013 The maximum permitted depth of an apartment building is 14 m. The apartment building will have a depth of 31 m.

3.Chapter 10.20.40.70.(2)(B), By-law 569-2013 The minimum required rear yard setback is 11.38 m. The apartment building will be located 5.05 m from the north rear lot line.

4.Chapter 10.10.40.10.(1)(A), By-law 569-2013 The maximum permitted building height is 9 m. The apartment building will have a height of 10 m.

5.Chapter 10.20.20.40.(1), By-law 569-2013 An apartment building is not a permitted residential building type in the Residential Detached Zone (RD). In this case, an apartment building is proposed in a Residential Detached Zone (RD).

6.Chapter 10.5.80.10.(2), By-law 569-2013 A minimum of 50% (6 parking spaces) of the required parking spaces, other than required visitor parking spaces, must be located in a building or in an underground parking structure. In this case, 0% (0 parking spaces) of the required parking spaces will be provided in a building or underground parking structure.

7.Chapter 10.5.100.1.(4)(A), By-law 569-2013 The minimum permitted driveway width is 3 m. In this case, the driveway width will be 2.6 m.

8.Chapter 10.5.50.10.(4)(A), By-law 569-2013 A minimum of 50% (690.5 m²) of the lot area must be maintained as landscaping. In this case, 40% (547 m²) of the lot area will be maintained as landscaping.

9. Chapter 200.5.10.1.(1), By-law 569-2013 A minimum of 15 parking spaces are required to be provided. In this case, 9 parking spaces will be provided.

3The walk-up apartment building is in the north west corner of Swansea, south of Bloor St., west of the South Kingsway and east of the Humber River. The property is designated Neighbourhood in the Official Plan. It is zoned R, residential, fronting on Riverside Dr. where the apartment building is located. It is zoned RD, residential detached in the rear where a very small portion of the addition will be located.

4It is surrounded by different uses: similar walk-up apartments on either side, a residential 5 story condominium building to the north, a commercial building to the northeast, and detached residential buildings to the southeast. To the rear of the apartment building on the same lot is a parking area and a grassed area with numerous trees which create a tree canopy.

5During the lengthy hearing of the appeal evidence was heard from a land use planner, arborist and traffic engineer in favour of the application. In opposition, evidence was heard from a witness experienced in building and design who also was qualified as a land use planner. A number of residents also gave evidence in opposition.

6Those in opposition to the variances include numerous residents in the area, and in particular the owner of 309 Riverside Dr., the apartment building adjacent to the subject property on the west, and the condominium to the north.

7The evidence is summarized below and results in the approval of six variances because during the course of the hearing zoning bylaw amendments came into force. and thus, the need for certain variances was altered. The height limit on the subject property was increased to 10 m. This negated the need for a variance respecting height. In addition, the parking requirement for the residents of the enlarged apartment building was reduced to zero, negating the need for the variance respecting number of parking spaces; although a variance is required respecting the failure to provide 50% of 3 visitor parking spaces indoors. These changes are minor and do not require new notice.

8As a result, the variances to be approved by this appeal are as follows:

1. Chapter 10.10.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index of an apartment building is 1 times the area of the lot (824.96 m2) in an R zone and 0.35 times the area of the lot (208.98 m2) in an RD zone, for a total of 1,033.94 m2 . In this case, the apartment building will have a total gross floor area of 1,171.10 m2.

2. Chapter 10.10.40.30.(1)(B), By-law 569-2013 The maximum permitted building depth of an apartment building is 14 m. The apartment building will have a depth of 31 m.

3. Chapter 10.20.40.70.(2)(B), By-law 569-2013 The minimum required rear yard setback is 11.38 m. The apartment building will be located 5.05 m from the north rear lot line. 4.

4. Chapter 10.20.20.40.(1), By-law 569-2013 An apartment building is not a permitted residential building type in the Residential Detached Zone (RD). In this case, an apartment building is proposed in a Residential Detached Zone (RD).

5. Chapter 10.20.20.10.(1), By-law 569-2013 A dwelling unit in an apartment building is not a permitted use in the Residential Detached Zone (RD). In this case, a dwelling unit within an apartment building is a proposed use in a Residential Detached Zone (RD).

6. Chapter 10.5.80.10.(2), By-law 569-2013 A minimum of 50% of the parking spaces for an apartment building, other than required visitor parking spaces, must be in a building or underground structure: (3) spaces. The proposed number of parking spaces in a building or underground structure is 0%: 0 spaces.

7. Chapter 10.5.100.1.(4)(A), By-law 569-2013 The minimum permitted driveway width is 3 m. In this case, the driveway width will be 2.6 m.

8. Chapter 10.5.50.10.(4)(A), By-law 569-2013 A minimum of 50% (690.5 m²) of the lot area must be maintained as landscaping. In this case, 40% (547 m²) of the lot area will be maintained as landscaping.

THE LEGISLATIVE AND POLICY FRAMEWORK

9A 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.

10Provincial 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.

11Variance – 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

12There was no dispute that the variances meet provincial and city housing policies. Both the proponents and opponents agreed there is a need for rental housing in Toronto and that this proposal responded to that need and fulfilled the provincial and official plan policies providing for a variety of housing types, infill housing and intensification.

13There was a clear divergence, however, in the evidence respecting design, character and impact. The proponents’ evidence related to the location of the addition on the site. Their evidence was that the addition fit in the neighbourhood and respected and reinforced its character as required by policy 4.1 of the Official Plan. Evidence in support of the conclusion that the addition did meet this policy may be summarized as follows. The addition was at the rear of an existing apartment building and was lower than the existing apartment building by approximately one metre and thus could not be easily seen from Riverside Dr., the street upon which the existing apartment building fronted. The addition would have virtually no impact on the street’s appearance. It could only be seen by looking down a lane or mutual driveway from Riverside Dr. and through a gap in the street scape on the arterial road to the north, Bloor St.

14Moreover, it was an addition that extended from one side of the rear of the existing apartment building and resulted in an “L” shaped building not unlike other apartment buildings in the area. That shape ensured that other units in the existing building would not be affected by the addition. The opponent’s position was that the addition was box shape in that it had a flat roof, whereas the apartment buildings in the area had prism roofs, i.e. pitched roofs with dormers and that this addition was therefore out of keeping with the neighbourhood It could be seen at its location from the rear of detached houses to the south, from neighbouring apartment buildings and from the condo building and retail building to the north on Bloor Street. Another aspect of location addressed by the opponents was safety. It was suggested that the location and thus access to the proposed addition was unsafe because it was by way of a mutual drive and may be contrary to the Building Code in that interior access to the addition would be by an indirect hall going up and down stairs. The opponent’s response was that the traffic engineer found no issue with pedestrian or vehicular access by the mutual driveway and that the Building Code review would address interior access issues.

15In terms of impact the opponents raised concerns re: loss of views, shadowing, overlook, parking, flooding and trees. The loss of views resulted from the addition extending into the rear yard of the subject property and thus blocking to some extent views from the condominium building on Bloor St. The proponent’s evidence was that in an urban are there is no right to a view and that, in any event, the lost view is largely of a parking area behind the existing apartment building and its neighbour to the east on Riverside Dr. Moreover, it was suggested that in an urban area one cannot expect to have a view from a five-story building. Lack of a view is part of the urban condition. With respect to shadowing on a small patio at the rear of 309 Riverside Dr., The evidence of the proponents demonstrated that the existing shadowing of the patio was not significantly impacted. Shadow evidence by the opponents did not seriously rebut that evidence. A concern with respect to overlook into the patio area was addressed by a suggested condition to place frosted glass in significant windows on the north side of the addition. Parking is no longer an issue as that variance is no longer required. In addition, it can be noted that the traffic engineer’s evidence was that the addition would not create concerns regarding on-street parking. The issue of flooding was addressed in two ways. A condition of requiring semi permeable pavers to be used in the parking area, as suggested by the proponents, will increase drainage on site and benefit trees around the parking area. Moreover, drainage will be addressed through the building permit process. The need to injure or destroy trees was addressed in an arborist’s report and by virtue of a suggested condition will provide for Urban Forestry’s review.

ISSUES AND ANALYSIS

16The City did not appear in opposition to this appeal and indeed assisted the proponents in preparing the site plan and addressing the above issues. I find that the proponents have addressed all issues in a satisfactory manner.

17The addition will provide needed rental housing. It is located so that it will have no adverse impact on the wider neighbourhood, and indeed reinforces the character of L shaped low rise rental apartment buildings in the area. Its impact on neighbouring properties is not a matter which should result in refusal of the application. The proponents fully addressed all issues raised with respect to impact. Concerns related to views, shadowing, overlook, parking, flooding, and trees were all addressed in a satisfactory manner. Views are not a right in an urban setting from a five-story building, especially when the view lost is largely of a parking area. Shadowing was not proven to be a significant impact on a patio already largely in shade. Overlook was addressed by a condition respecting frosted glass. Parking, flooding, and trees are all satisfactorily addressed by conditions. This is an ideal location for rental housing and intensification. It is largely a hidden site, and the addition will have minimal impact, yet it is close to two subway stations and a variety of commercial, retail, and professional uses on Bloor St.

18The above analysis leads to a conclusion that the variances as revised should be granted. The variances respecting length and rear yard setback should therefore be allowed to permit the variance to increase the FSI to allow additional rental units in a location which will not adversely impact on the existing apartments in the building. Similarly, the side yard variance allows for an addition to be located to one side of the building so that existing units need not be destroyed. The variance to permit the extension of the addition into an R zone is approximately 1.5 m and that extension is triangular in shape. Being so small it is insignificant in scale and is in keeping with the general intent of the bylaw to preserve the area zoned RD for detached residential uses. Moreover, the Planning Act allows variances to any zoning bylaw and that authority cannot be overridden simply because the language of the bylaw does not permit a use. Allowing visitors parking to be outside the building in order to facilitate rental units is appropriate as is the reduction in landscape open space and driveway width. In brief given the above analysis this a very desirable development and it demonstrates that all the variances meet relevant provincial policy and the four tests of the Planning Act.

CONCLUSION

19The appeal should be allowed in part and the revised variances set out above should be approved subject to the conditions referred to.

DECISION AND ORDER

20The appeal is allowed in part and the variances set out in Appendix 1 are hereby approved subject to the conditions set out in Appendix 1.

S. Makuch

Panel Member

Appendix 1

REVISED LIST OF VARIANCES AND CONDITIONS

1. Chapter 10.10.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index of an apartment building is 1 times the area of the lot (824.96 m2 ) in an R zone and 0.35 times the area of the lot (208.98 m2 ) in an RD zone, for a total of 1,033.94 m2 . In this case, the apartment building will have a total gross floor area of 1,171.10 m2 .

2. Chapter 10.10.40.30.(1)(B), By-law 569-2013 The maximum permitted building depth of an apartment building is 14 m. The apartment building will have a depth of 31 m.

3. Chapter 10.20.40.70.(2)(B), By-law 569-2013 The minimum required rear yard setback is 11.38 m. The apartment building will be located 5.05 m from the north rear lot line.

4. Chapter 10.20.20.40.(1), By-law 569-2013 An apartment building is not a permitted residential building type in the Residential Detached Zone (RD). In this case, an apartment building is proposed in a Residential Detached Zone (RD).

5. Chapter 10.20.20.10.(1), By-law 569-2013 A dwelling unit in an apartment building is not a permitted use in the Residential Detached Zone (RD). In this case, a dwelling unit within an apartment building is a proposed use in a Residential Detached Zone (RD).

6. Chapter 10.5.80.10.(2), By-law 569-2013 A minimum of 50% of the parking spaces for an apartment building, other than required visitor parking spaces, must be in a building or underground structure: (3) spaces. The proposed number of parking spaces in a building or underground structure is 0%: 0 spaces.

7. Chapter 10.5.100.1.(4)(A), By-law 569-2013 The minimum permitted driveway width is 3 m. In this case, the driveway width will be 2.6 m.

8. Chapter 10.5.50.10.(4)(A), By-law 569-2013 A minimum of 50% (690.5 m²) of the lot area must be maintained as landscaping. In this case, 40% (547 m²) of the lot area will be maintained as landscaping.

CONDITIONS: 1. The proposed purpose-built rental apartment building shall be constructed substantially in accordance with the following plans, prepared by Bernard Watt Architect, dates as noted below: a. Site Plan (December 22, 2021)

b. South Elevation (December 9, 2021)

c. East Elevation (February 19, 2021)

d. North Elevation (February 19, 2021)

e. West Elevation (December 9, 2021)

2. The windows identified with an “F” on the attached Window Diagram prepared by Bernard Watt Architect dated March 15, 2023, shall be frosted or translucent glass.

3. The Owner shall obtain a permit to injure or remove privately-owned trees pursuant to Chapter 813 of the Municipal Code, Article III. The permit application shall be substantially in accordance with the Arborist Report & Tree Protection Plan prepared by Tree and Ravine Inc. dated July 23, 2021, subject to the requirements of Urban Forestry.

4. The driveway and parking lot shall be re-constructed with permeable eco-paving or pavers, as set out in the Site Plan and the Arborist Report & Tree Protection Plan referenced above, subject to any requirements of Urban Forestry based on the outcome of an exploratory root excavation, if required, or any recommendations arising due to roots encountered during excavation.