Blue Lion Building Corporation (Re), 2024 ONTLAB 240

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date:

August 1, 2024

23 230693 S45 11 TLAB

Blue Lion Building Corporation (Re), 2024 ONTLAB 240

DECISION AND ORDER

Issuance Date:

August 1, 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):

BLUE LION BUILDING CORPORATION

Applicant(s):

BLUE LION BUILDING CORPORATION

Property Address:

62 CROFT ST

COA File No.:

23 201152 STE 11 MV (A0790/23TEY)

TLAB Case File No.:

23 230693 S45 11 TLAB

Scheduled Hearing Date(s):

April 10, May 13, May 21, May 22, June 24, 2024

Decision Delivered By:

TLAB Panel Member T. Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Applicant/Appellant/Party	BLUE LION BUILDING CORPORATION	E. COSTELLO, N. HICKIE
Party	M. WANG,
Party	HARBORD VILLAGE RESIDENTS’ ASSOCIATION	R. STAMBULA
Participant	K. SHINTANI
Participant	M. VOYSEY
Participant	H. GAVENDO
Participant	E. CHEN
Participant	L. SHERECK
Participant	W. MOEDER

Background

1Mr. Teitelman, the owner of 62 Croft St, (an address on a lane), made an application to the Committee of Adjustment for variances to permit him to build a new three storey house. This property has an unusual history in that it is a newly severed lot; created though an earlier and different application by Mr. Teitelman. The lot was formerly the rear of 157 Lippincott.. Mr. Teitelman then sold the Lippincott part to Ms. Wang and retained the Croft portion, which given a Croft address. He has not built on this his new lot; it remains in the same state as it was when it was severed.

2The variances sought in this application (the 2023 project) are set out in Table 1 below. On Nov 8, 2023, the Committee of Adjustment refused the variances; Mr. Teitelman, through his agent Blue Lion, appealed and so this matter came to the TLAB.

Table 1. Variances sought for 62 Croft St

#	Variance	Required/Permitted	Proposed
1	Floor Space Index	1.0 times area of lot	1.87 times area of lot
2	Front Yard Setback.	6.0 m	0.0 m
3	Rear Yard Setback	7.5 m	3.0 m
4	Side yard setbacks	0.45 m	0.0 m
5	Setback from centre line of lane	2.5 m	1.98 m
6	Front yard landscaped open space	75% of the required front yard landscaped open space must be soft landscaping	The proposed soft landscaping in the front yard will be 63%.
7	Max. second floor roof deck projection into rear yard setback	1.5 metres (illustrated below)	5.0 m sought in Dales Witness Statement, but corrected to 4.5 m at the TLAB hearing

THE LEGISLATIVE AND POLICY FRAMEWORK

3This section sets out the general legal framework that is applicable to all cases at the TLAB. First, a TLAB decision shall have regard to matters of provincial interest. The development must also be consistent with the Provincial Policy Statement and conform to the Greater Golden Horseshoe Growth Plan. In my view these speak in a high level of generality — too high to be directly relevant for what is essentially an enlargement of a recently approved but not built building in an urbanized setting with full municipal services¹. These broader policies y deal with for example matters of broader interest such as preserving agricultural land or provision of affordable housing. These issues do not arise in this case.

4The variance must also comply with s. 45(1) of the Planning Act and applicable case law and meet all of the four tests, cumulatively and individually:

• maintain the general intent and purpose of the Official Plan;

• maintain the general intent and purpose of the Zoning By-laws;

• be desirable for the appropriate development or use of the land; and

• be minor.

My analysis and reasons focus on these tests.

Right to develop

5The obligation is on the proponent [Mr. Teitelman/Blue Lion] to demonstrate to the decision-maker that the tests are met on the balance of probabilities; there is no right to a variance.

EVIDENCE

6I heard from six witnesses: Mr. Dales, the proponent’s planner, and Mr. Davidson, Harbord Village Residents’ Association’s planner, both of whom I qualified as able to give opinion evidence in land use planning. In addition, I heard from Ms. Dexter on behalf of the Harbord Village Residents’ Association, and immediate neighbours Ms. Gavendo, Ms. Shintani and Ms. Wang. I also heard from Ms. Bobbs, and Mr. Moeder, and Ms. Voysey. Ms. Dexter did not seek to be qualified as an expert witness or local knowledge expert.² The other witnesses testified on their own behalves.

7I also visited the property. This does not constitute evidence but enabled me to better appreciate the evidence given by the witnesses.

ISSUES AND ANALYSIS

Summary

8I apply the four tests as directed by the Planning Act, concentrating on whether the project maintains the intent of the cornerstone section. 4.1.5 of the Official Plan. Although the present application has three stories instead of two, the key variance of concern is the Floor Space Index (FSI). I am refusing Mr. Teitelman’s appeal.

The 2019 project (two stories) compared to the 2023 project (three stories)

9This lot was created in 2019, after a hearing in 2017. Initially Mr. Teitelman’s application was refused by the Committee of Adjustment; he appealed to the Local Planning Appeal Tribunal (as the Ontario Land Tribunal was called at that time). The LPAT member who presided at that hearing was Vice Chair Hussey. As is usual for most severances, plans and drawings of the house were submitted, and became part of the decision; Vice Chair Hussey granting 15 variances. Some were duplicates because two zoning by-laws were at play and these will be itemized in Table 2..

10Neither design (2019 or this one, 2023) requires a height or “number of stories” variance. The current building height is 10 m high, well below the permitted height of 13 m. The most significant variances (bolded in Table 1) are density (FSI) and the rear yard setback, although of course all seven must meet the tests.

11The City appeared in opposition at that hearing but did not appear at this hearing. It obtained an increase in rear yard setback plus opaque screening for the third floor deck (which is atop the second floor roof) and advised the Committee of Adjustment in November 2023:

Planning staff are of the opinion that the proposal would result in an appropriate intensification of the site.

Mr. Stambula, speaking for Harbord Village Residents’ Association, said that “intensification” was only part of the range of considerations, and I agree.

The 2019 LPAT variances

12In Table 2, I set out a variance by variance comparison between 2019 and the 2023 projects. The variances are taken from the LPAT decision (left column) and commentary (right column) based on the Sept 28, 2023 Zoning Notice of Mr. Zuhal Akman, Zoning Examiner.

Table 2. Comparison of 2019 and 2023 variances

Number given by LPAT	2019 decision	Zoning Examination of Z. Akman, (Sept 28, 2023)
Variances from By-law 569-2013
1	Level of upper level platform must be even with access floor; Permission for a step up from second floor level to the platform	Mr. Akman noted that the second floor roof deck was approximately 1.1 m higher than floor of third floor ensuite bath/ and bedroom. I believe because of the wording of the zoning by-law Mr. Teitelman was not required to obtain a fresh variance even though the new plans call for a step up from the third floor and not a second floor
2	Side yard setback for exterior stairs) The stairs must be 0.6 m from north and west side yards; LPAT permitted zero setback.	The 2013 plan does not appear to have exterior stairs at the rear. I am unable to assess this issue because no plans of the LPAT approved building were filed.
3	Min lot area of 180 m^2; a smaller lot area of 101 m^2 approved	Mr. Akman noted this was already approved, so he did not call for this variance again
4	FSI of 1.64 approved	This is the most relevant new variance. 1.87 is sought
5	0.9 m side yard setbacks for main walls required. zero approved for north and south lot lines (side yards); also, east lot line (front)	Similar variances sought except the requirement is now 0.45 m. There is a wrinkle in that with 62 Croft being a new lot of record, the east lot line now becomes the “front yard” and Mr. Akman asks Mr. Teitelman to seek a front yard setback of zero m.
6	Integral garage permitted for lots with frontage > 7.6 m; lot is only 6.0 m wide	Bolded Var 3 ditto
7	Lot must abut a street; Part 2 abuts a lane;	Bolded Var 3 ditto
8	LPAT var 8 appears to be a duplicate of var 7
Variances from By-law 438-86 (no longer in effect)
New 1	Language is difficult to decipher but seems to relate to frontage on a lane	Bolded Var 3 ditto
New 2	Front yard setback of 6.0 m req.; zero is approved	See var 5 above
New 3	setbacks to adjacent buildings of 0.9 required; zero to north building and 0.05 to south building are approved	Appears to be subsumed in var 5 above
New 4	Similar to var 5 above
New 5	Rear yard setback of 7.5 m required; LPAT approved 3.78 m	The present rear wall’s location is different from the 2019 rear wall. Mr. Teitelman requests a 3.0 m rear yard setback
New 6	30% Landscaped open space required; LPAT approved 14.48%	This appears to be no longer required.
New 7	Similar to var 6 above

13In addition, Vice Chair Hussey imposed the following condition:

Subject to the following Conditions: (1) That the second floor of the proposed dwelling have a maximum building depth of 7.8 metres, excluding the green roof and glass roof, as per the second floor plan received by the Committee of Adjustment on September 12, 2016

As far as I can tell, the proponent is not proposing a green roof or glass roof.

14To summarize Table 2, Mr. Akman stipulated that fresh variances are needed for FSI and rear yard setback; the side and front yard setbacks are identical to what was sought in 2019 and variances directly associated with minimum lot size and abutting a lane are no longer required.

15Before moving on to the tests, I comment on how Mr. Akman coordinated his examination with the previous one that led to Vice Chair Hussey’s decision. He wrote:

R [Residential, this word is my interpolation] (d1.0) (x848) . . . HT: 13.0 Proposed New Single Family Dwelling 3-Storey Detached House on a previously severed lot with an existing ancillary building which will be demolished

16Thus Mr. Akman required a variance from the base levels of 1.00 FSI (not 1.64 as previously granted) and 6 m front yard setback (from 7.5 m). These are strict requirements, and supported by Ms. Costello, Mr. Teitelman’s lawyer, who said: “We submit this can’t be approved as a small increase [over previously already granted variances]”.

17The variance of 1.87 from required 1.00 is the variance I need to test. In the next section I proceed to apply the four tests to this variance and others.

Overview of site plans

18As set out, I received little information about the LPAT approved building and site plan. I did receive a shadow study that showed the old and new shadows which happens to have the 2019 footprint. The grey background version shows shadows for the present application with heights as well has rear yard dimensions of 3 m deep (consistent with Variance 3) by 6 m wide. The other (lower) picture, shows the LPAT approved building and, except for heights,. is undimensioned

Figure 3. Excerpt from proponent’s shadow study. Upper 2023 project. Lower 2019 project

Must maintain intent of Official Plan

19I begin with Official Plan policies; the development must maintain the general intent and purpose of the Official Plan. Most of the evidence was concentrated on ss. 4.1.5, 4.1.9 and 4.1.10 of the Plan (“Development Criteria”). S, 4.1.5 is called the “cornerstone” section. I set out the key paragraphs on the left and my titles on the right. I will address each in detail:

4.1.5: “A”. “Fitting In”

4.1.5: “C”. 4.1.5 C. Materially consistent with both contexts

4.1.5: “F and G”. Mix of Physical Characters; and

4.1.9. and 4.1.10 “Infill”.

Figure 4. Official Plan “Development Criteria”

Official Plan Text	Title
Para. A 4.1.5. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:. . . prevailing heights, massing, scale, density and dwelling type of nearby residential properties;. . . prevailing patterns of rear yard setbacks and landscaped open space; . . .	A. “Fitting In”
Para. B: Delineation of geographic neighbourhood (not in dispute)
Para. C The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context). Proposed development within a Neighbourhood will be materially consistent3 with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance. . . .	C. Materially consistent with both contexts
Paras. D and E Major Streets (not applicable)
Para. F The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood. Some Neighbourhoods will have more than one prevailing building type or physical character. . . .	F. Most frequently occurring
Paras. G While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood, provided that the physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood and already have a significant presence on properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighbourhood.	G. Mix of Physical Characters
4.1.9. In established Neighbourhoods, infill development on properties that vary from the local pattern in terms of lot size, configuration and/or orientation will: a) have heights, massing and scale that are respectful of those permitted by zoning for nearby residential properties, . . . b) have setbacks from adjacent residential properties and public streets that are proportionate to those permitted by zoning for adjacent residential properties, while taking into account the existing form of development on the infill property; c) provide adequate privacy, sunlight and sky views. . . d)	9. Infill
10. Residential infill development applications on properties that vary from the local pattern in terms of lot size, configuration and/ or orientation as a result of the assembly of lots that previously had adhered to the local pattern will be evaluated applying Policy 5. In all other situations where residential infill development can replicate the existing prevailing lot pattern, Policy 5 and/or Policy 9 will be applied to evaluate development applications. . . .	10. Direction on how to apply 4.1.9

20Paragraph A (fitting in) requires that the building “respect and reinforce” certain parameters of neighbourhood character, specifically prevailing heights, massing, scale, density of nearby residential properties, and prevailing patterns of rear yard setbacks. Mr. Dales (Mr. Teitelman’s planner) interpreted this as finding other similar examples, all Croft addresses. I interpret the Official Plan policy somewhat more broadly as asking me to determine whether in the geographic and historical context, having regard to the specific words the Official Plan to determine whether the variances further Council’s overall objectives. In short it is not whether the are a few comparables but rather a consideration of the total neighbourhood policy context.

21Mr. Dales gave statistics on two areas: the broader area (Figure 5, below) and eighteen Croft properties (his immediate area). The broader area contains 371 houses, roughly 350 “street-fronting” houses and eighteen “lane-fronting”. I accept Mr. Dales’ broader study area for the purpose of the Official Plan tests.

Figure 5. Dales geographic neighbourhood (also referred to as “broader study area”

22Mr. Dales’ own data disproves the 4.1.5 test with respect to the geographic neighbourhood (broader study area). He grouped the densities into five ranges: <0.49 FSI , 0.50 to 0.99 FSI , and so on.⁴ (FSI is floor space index, which is total interior space divided by lot area). For the larger area, the most frequently occurring density is 0.5 to 0.99 FSI or 219 lots out of 371 (59%). For the smaller area, the most frequently occurring density is 1.5 to 1.99, that is, 10 out of 18 lots (56%). On this basis Mr. Dales said that the development’s FSI = 1.87 was “similar” to these eighteen as well as for the “regular” Lippincott and Borden houses.⁵ I do not agree that the proposed 1.87 FSI is “similar”; not only is it is much greater but the orientation of the regular lots (the majority of the 371) is different. Furthermore , “similar” is not the test; the density has to “respect and reinforce the existing physical character”, which is 0.5 to 0.99 FSI.

23. I reach a similar conclusion with respect to rear yard setbacks. This is to be expected since a typical Lippincott or Borden lot is 43 m (120 ft) deep; more than enough for the 7.5 m rear yard setback. The dept of the subject is 16.8 m. Finally, although Mr. Dales did not look at front yard setbacks for the broader area, a survey filed as a late exhibit shows 175 Lippincott (Ms. Wang’s house has a front yard setback of 2.2 m, not zero. Assuming other regular lots have this modest but non-zero setback and even the two garages sandwiching the 62 Croft garage (to be demolished) have small setbacks from the lane, in the order of .5 m. Accordingly, any comparison with the broader area, the most significant test in s. 4.1.5, fails on the facts, which were accurately presented by Mr. Dales.

Whether the Croft addresses are the immediate context

24Alternatively, Mr. Dales then made an argument based on:

In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.

There re are two difficulties:

• thirteen of the eighteen are in the next block not in the immediate context, and

• Paragraph C says that the development will be “materially consistent” — a lesser standard than “respect and reinforce” — with both the broader and immediate contexts”.

25Dealing with the first difficulty, Mr. Dales suggested that this was not an obstacle because the two Croft blocks are “short blocks”. I do not see any support for this planning argument; these are typical blocks, separated by typical cross streets. Ms. Dexter said the southern block is 250 m long and the other two 200 m long. By referring to “same block”, the words take into account a person’s experience of taking in a streetscape one block at a time.

26Turning to the second difficulty, the development must be materially consistent with both contexts. I have found that the development does not “respect and reinforce” the character of the larger area.. But this is a different and lesser standard “material consistency”. I have highlighted this phrase in yellow in Paragraphs C and G. Here Mr. Dales could have offered some assistance to interpret this different standard, but he did not; he used “similar” or “comparison” language. I find that the material consistency test is not met for this reason and also because of differences in history, which I will elaborate further when applying the test under “mix of characters,. In short, the proponent has not convinced me that the density variance succeeds under Paragraph C.

The ”mix” argument

27I now turn to Mr. Dales argument on “mix of characters”. For this argument to succeed, there must be three prerequisites:

• The non-prevailing physical character must exist in substantial numbers in the geographic neighbourhood;

• There must be a “mix” of these characters;

• Material consistency with the physical character of the geographic neighbourhood. ⁶

Figure 7. Eighteen Croft comparables :thirteen on south block (left) and five on middle block (right); with number of stories

Significant numbers

28The direction regarding “mix” occurs at the start of paragraph G, which I believe provides an “escape valve” (my word) for the situation where the usual definition of “prevailing” is too rigid:

While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters.

29“Character” refers to the conclusion reached after the whole act of pattern recognition takes place; “characteristic” refers to the discrete components that make up the determination of the character. As the opening words make clear, an exception is created for the counting exercise in the word “prevailing”. For the purposes of this section, we can use for the non prevailing characteristics:

• A density in the 1.5 to 2.00 range or greater;

• A short depth of lot

• Fronting on a lane.

30The requirement that a non- prevailing characteristic “exists in substantial numbers” requires assessment against the geographic neighbourhood of 371 houses. For any of the above three characteristics I do not find eighteen a substantial number compared to 371.

31The plan also layers a second qualification:

significant presence on properties located in the immediate context or abutting the same street

The immediate (middle) block has 64 properties (my count) or 52 (Ms. Wang’s). Five (the five Dales middle block comparables) out of 64 or 52 is not a significant presence. Moving to consider the abutting properties (167 for all three blocks), 18 out 167 properties is also not a “significant presence”.

“Mix” and material consistency

32Ms. Dexter stated that the north and middle Croft blocks constitute one character and that the south block is a different character. Mr. Dales said in general terms that there was an “eclectic” mix across the whole geographic area.⁷ I agree with Ms. Dexter. To summarize what follows, there is a difference how each side views the spatial pattern within the relevant neighbourhood, how the pedestrian sees these eighteen properties, and the history of how this neighbourhood developed.

33Ms. Dexter made detailed maps of the three Croft block to illustrate her conclusion that the south block is different from the other two. She concentrated on Croft because she considered it obvious that a house is different and materially inconsistent with “regular” houses. Figure 7 above are her maps for the south block (left) and middle block. Mr. Dales’ eighteen Croft addresses are distributed as follows:

Middle block: five houses , all west side

South block: ten houses west side, three houses east side = thirteen in south block (outlined in L-shaped block)⁸

I have marked the number of storeys beside each house. Three storey houses appear only in the south block.

34In my view, the visual and community experience will be paramount. If a pedestrian walks from north to south they will encounter nothing but garages and the odd vacant space. The feeing is frankly one of lack of animation. Once they arrive at the top of the L they will see a neighbourhood of those non-prevailing characteristics –laneway residences – perhaps with people chatting with each other in the laneway public space or watering a flower urn – it is unlikely that one will see the owner of a one storey garage chatting in the laneway. In short, this is not a mix but an isolated knot of comparables a block away from the proponent’s intended three storey house.

Figure 8. Miscellany of photos. Upper left: present streetscape. Upper right: 96 Croft Lower photo: west side of lower Croft.

35I now turn to the historical context which informs the pedestrian experience just described. Although Mr. Dales said that he did not do a “deep dive” into their history, he did rely heavily on the 7, 9, and 11 (TLAB) decision of Dec 2018, which contains a large amount of historical detail, going back sometimes to the 1920 census. The bottom line is that all comparables, including 7, 9, and 11, were severed from rear portions of “regular” lots or were separate lots created in tandem with front portions on Lippincott or Borden. ⁹

36Turning to the middle block Ms. Dexter said that #s 92, 94 and 96 Croft were formed from an assembly by the Salvation Army.¹⁰ She also observed that #54 was a modern “rebuild” of an 1880 structure and #50 was built in 1950, which I note is prior to any zoning by-law for the former City of Toronto. I note as well in the context of next door interactions, 96 Croft has no side neighbour to the north (Figure 8, upper right).

37The physical character of the proposal must be “materially consistent” with the physical character of the geographic neighbourhood.¹¹ Toronto’s Official Plan applies to hundreds of neighbourhoods, each unique in its own way. Taking a “big picture” view of the material consistency test, the Official Plan tries to allow some leeway from the word “prevailing”, when a neighbourhood has variation in character, but where the decision maker finds “material consistency”. I interpret this as requiring that these words “materially consistent” must have some sibling relationship to “respect and reinforce”.

38In the proponent’s evidence, every one of the eighteen other lots was created decades or a century ago.¹² This was an organic, gradual City-building process. The present development followed a different path. Not only was the new lot created recently, but it was initiated by the same person. The first decision maker studied the evidence and approved a two storey building, giving careful reasons. The same owner now wishes to resile from that two storey building. So, I have no difficulty finding that the development is not materially consistent with the character of the geographic neighbourhood. Number 62 Croft is alone and not part of a mix of characters and is not materially consistent with any other lot in the geographic neighbourhood. Thus, based on the evidence, I find the argument on paragraphs F and G of the Official Plan does not succeed.

Infill

39The last argument is based on paragraphs 4.1.9 and 4.1.10.¹³ In my view these apply only to infill projects, and I do not find that this development is infill. The Provincial Policy Statement encourages “intensification”, which includes “infill” as well as “underutilized lots within previously developed areas”. ¹⁴ The Official Plan’s most detailed discussion on infill is in Chapter 2, discussing how the Plan will accommodate “enhancements, additions and infill housing”. This is accompanied by a photo (in the sidebar of the Plan text) which I interpret as a redevelopment to create wihat looks like a triplex between two other houses.¹⁵

40The wording suggests smaller redevelopments that fall short of a change in lotting fabric and the photo shows three similar sized frontages. There is nothing in the Planning Act to prevent other owners of laneway lots seek a severance of the rear to create an undersized lot of record, but such applications would need a number of other variances to facilitate this. For example, 62 Croft obtained a variance for a lot area of 101 m^2 where the minimum lot area is 180 m^2. Considering that the City has 250 km of laneways and an Official Plan Amendment was needed to permit laneway housing,¹⁶ I do not find that this is a reasonable interpretation of the infill rules.

41Mr. Dales made a further argument based on “intensification”. He said that any increase in density was “intensification” and therefore favoured by the Provincial Policy Statement, whereas Mr. Davidson (Harbord Village’s planner) said that intensification should be confined to an increase in the number of dwelling units per hectare. I find Mr. Davidson’s interpretation more compelling. For example, the Provincial Policy Statement encourages density near “major transit corridors”.¹⁷ This is directed at a public policy to increase the number of household units in mid and high rises, not additional floors for a single dwelling unit. I do not find Mr. Dales’ infill arguments tenable and accordingly neither s. 4.1.9 nor 4.1.10 of the Official Plan is applicable.

42In conclusion, I find the variances requested do not maintain the general intent of the Official Plan. I will go on to consider whether they maintain the intent of the zoning by-law.

Zoning intent and other tests

43In paragraph 4 (Legislative Framework) the proponent must show that that the proposed FSI variance of 1.87 meets the general intent of the zoning by-law. It states the maximum FSI is 1.00, but this is but one component of intent. What was Council attempting to achieve in promulgating this and other relevant standards?

44Floor Space Index is an attempt to limit interior space proportionately to the size of the lot. In certain cases (for example, ravine lots) the permitted size of house may be adjusted but here the undersize nature of the lot was not limited by topography but deliberate choice. Many other owners of laneway backing lots would wish to do the same. In the laneway housing section, I very briefly look at the policy decision in response to such wishes, which is a comprehensive and well thought out solution, as opposed to a “one-off” application for laneway development. Council’s solution for the whole of the City where there are lanes is now part of the intent of the zoning by-law. This is what the Planning Act requires me to consider.

Figure 9. Cross section of proposed house at 62 Croft

Figure 10. Comparison of floor areas of 2019 and 2023 buildings

	2019 Building	Col 3	2023 building	Col 5
	Floor Areas	/100 m^2	Floor Areas	/100 m2
Lower/basement	69.30 m^2	0.69	54.20 m^2	0.54
Ground Floor	46.00 m^2	0.46	55.64 m^2	0.55
Second Floor	45.00 m^2	0.45	79.11 m^2	0.78
Third Floor	Not Applicable		54.09 m^2	0.54
Total	160.30 m^2	1.59	243.04 m2 minus “basement”= 188.84 m2	1.87

45Mr. Dales’ discussion of this topic rests on his argument that there are other examples of higher FSIs and that the additional floor space will be deployed to mitigate shadow and overlook¹⁸ In Figures 9 and 10, I examine this deployment. Figure 9 shows the rear elevation, and the zoning intent really boils down to whether all the massing above 7.3 m (hand drawn to show the number more clearly) maintains the intent of the by-law. Figure 10 is a floor by floor breakdown of Gross Floor Area and FSI from Mr. Davidson and the architect. I don’t have the examiner’s working notes so I create a proxy for Floor Space Index by dividing by the area of the lot, which I am satisfied is roughly accurate. I am aware that Mr. Davidson’s total for the 2019 building does not quite add up to 1.64.

46Each floor level adds, at a minimum, about 0.45 FSI, about half of the lot area. In my view, when the owner proposes this much density, not at street level but at the 7.3 m level, the proposed mitigation -- retrogressing of the walls of the third floor and planter boxes --- is insufficient. The third floor should not be there to begin with.

47Therefore, I find the density variance does not maintain the general intent of the zoning by-law. Since each variance must meet all four tests, and this one fails the Official Plan and zoning branches, the appeal must be rejected.

Laneway Housing

48I now turn to laneway housing (technically called laneway suites), adopted in June 2018, and given the numbering OPA 403 and Zoning By-Law 810-2018.¹⁹ These two pieces of legislation came into effect between the LPAT hearing and decision. I furnish a complete timeline in Figure 11 below. For some of this discussion I depend on Ms. Dexter’s materials and my specialized knowledge.²⁰

49Mr. Dales said laneway amendments were “inapplicable”. It is true that this application does not use a laneway suite as the template and then seek to vary from this template. My finding on Mr. Dale’s response is that laneway suites did not form part of the Official Plan and zoning intent in 2017, when the LPAT heard the case, but they do now.

Figure 12. Timeline

50The timeline shows the general thrust of policy change is towards additional units on the same lot. Laneway suites are now permitted in in the zoning by-law under regulation 150.8.60.40 of the Zoning By-law, which among other restrictions, limits suites to a height of 6.3 m and two stories. ²¹ Moreover, the City’s intent is that laneway suites should be rental units, .²² Along with other Official Plan amendments, intensification by way of new units on the same lot are part of the general intent and purpose of the Official Plan and zoning by-law²³ and form the planning context.²⁴

51Lanes will have laneway suites, a process that that has already begun, with #73 Croft. Thus, the proposed massing for 62 Croft must be placed in the planned context of a laneway suite no more than 6.3 m high and no more than two stories. As rental units, these potential suites may possibly be more affordable or near affordable, which this is unlikely to be the case for a private, owner-occupied house at 62 Croft. In my view, the proposed approach and variances are contrary to the intent and planning policy direction and intent as indicated by Council.

Conclusion

52Mr. Dales arguments took the general form of checking off a “to do” list of items. The Act asks me to come to a “big picture” conclusion, one that integrates Council’s competing goals of stability, gradual and sensitive change, proportionality of lot size and interior space, rear and front yard setbacks, plus a specific vision for laneway suites. In my view, taking the big picture, this is too much housing for the lot. It is not minor, another key test, nor is it desirable for the appropriate use of the land to put such as house on this smaller laneway lot. The proposal fails all four tests, both individually and cumulatively.

Order

53The appeal is denied and none of the variances in Table 1 are authorized.

T. Yao

Panel Member

The density of the dwelling relative to the size of the lot, measured as 1.87 times the lot area, fits into the built form context of the dwellings on Croft Street, which already includes dwellings of that scale and density. (Dales Witness Statement, par 113(c))

a) redevelopment, including the reuse of brownfield sites; b) the development of vacant and/or underutilized lots within previously developed areas; c) infill development; and d) the expansion or conversion of existing buildings. , (Provincial Policy Statement, 2020, p 13)

“. . .we [the two councillors] engaged with over 3000 residents . . .and a public consultation at the Evergreen [the City’s consultant’s] Brick Works. The feedback has been overwhelmingly positive, and the team has taken steps to address the key issues raised by the residents as part of the recommended performance standards. . . . Toronto has more than 2400 publicly owned laneways, covering more than 250 linear kilometres of public space which have the potential to become much more active, useful spaces in our urban fabric. Laneway suites can transform underutilized spaces such as rear garages and parking pads into sensitively scaled housing offering existing infrastructure and respecting the form and character neighbourhoods of dense urban neighbourhoods of Toronto and East York District. . . “ (Motion to Council to request study of laneway housing)

130. Based on the City’s LS data, seven of the 18 dwellings on Croft Street have FSIs at or larger than 1.87 times the lot area requested for the proposed dwelling on the Site. In fact, only three of the 18 properties have FSIs lower than 1.5 times the lot area. . . .
131. The proposed FSI variances will permit the construction of a well-proportioned dwelling that is similar to the scale of homes on Croft Street and within Study Area. More important that the numerical FSI values is that the additional floor space will be deployed on the subject property in a way that mitigates overlook and shadow impacts on properties in the immediate area. (Dales Witness Statement, paragraphs 129-131)

16. A tribunal may, in making its decision in any proceeding, (a) take notice of facts that may be judicially noticed; and (b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. (Statutory Powers Procedure Act) Facts set out here are from the City’s public website: Changing Lanes

Laneway Suites:

• Are rental units
• Should not be severed
• Are subordinate to the principal house
• Should be permitted as-of-right
• May not be possible on all lots with a lane. (Bilão and McMahon motion, 2017)

OPA 418 (July 23, 2018) Second Units OPA 554 (Feb 2022) Garden Suites OPA 649 (May 2023) Multiplexes

Footnotes

1. 1Croft St, despite being a lane, has full services.
2. 2Please see Practice Direction 6 regarding qualification of local knowledge experts.
3. 3Highlighted in yellow to help the reader locate the two places where “materially consistent” is used.
4. 4The left-most group contains only one bar because the eighteen lots have no candidates in the 0.0 to 0.49 density range.
5. 5The proposed dwelling has a height and scale similar to other dwellings on Croft Street, including the newly constructed dwellings at 7, 9, and 11 Croft Street, as well as the dwellings on the east and west sides of Lippincott Street and Borden Street. The proposed overall height of the dwelling (10.0 metres), and the height of the rear and front exterior main walls (9.5 metres), match the prevailing heights in the area and are well below the maximum heights permitted in Zoning By-law 569-2013 (13.0 metres, and 10.5 metres, respectively). . . .
6. 6The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood. Some Neighbourhoods will have more than one prevailing building type or physical character. The prevailing building type or physical character in one geographic neighbourhood will not be considered when determining the prevailing building type or physical character in another geographic neighbourhood. While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood, provided that the physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood and already have a significant presence on properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighbourhood. (Official Plan p 4-5)
7. 7The city, uh, official plan also recognizes that some geographic neighborhoods contain a mix of physical characters and that the prevailing character will not preclude development. That is not the most frequently occurring. In my opinion, the lots and dwellings on cross street as well as within the study area demonstrate and eclectic mix of physical characteristics and so, let me just take you now to the study area map, share my screen. (Dales oral testimony)
8. 8The thirteen south Croft addresses share similar lot depths (in the 14 to 15 m range), and similar Gross Floor Area (180 to 200 m^2). For comparison, Number 62 Croft seeks a density 1.87, has a depth of 16.8 m and seeks a gross floor area of 188.84 m^2 (2032 sq ft).
9. 9“Landmark acquired 1 and 3 Croft Streets in December 2014. A photograph showing its present-day frontage was taken by Catherine Spears (the City’s witness). It shows a garage door and white one storey brick building (all comprising 1 Croft) and faintly in the distance a one storey frame garage (3 Croft). At the time of purchase, it was two separate parcels of land, which merged into one by operation of law. The resulting lot is 20.83 m wide (68.3 ft). Landmark proposes to divide the lot into three roughly equal lots; the smallest being 6.90 m wide or 22.6 ft. The depth ranges from 15.53 m (51 feet) to 17.12 m (56.2 m). They are called Parts 1, 2, and 3 proceeding from north to south. (TLAB decision), Dec 2018)
10. 10At the rear is a very atypical lotting pattern, perhaps an outgrowth of that ownership.
11. 11The physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood (Official Plan)
12. 12Ms. Dexter’s Appendix F shows original construction dates between 1880 and 1965.
13. 134.1.9 begins “. . . , infill development on properties that vary from the local pattern . . .will . . . [obligations are set out].
14. 14Intensification: means the development of a property, site or area at a higher density than currently exists through:
15. 15By focusing most new residential development in the Downtown, the Centres, along the Avenues, and in other strategic locations, we can preserve the shape and feel of our neighbourhoods. However, these neighbourhoods will not stay frozen in time. The neighbourhoods where we grew up and now raise our children help shape the adults and the society we become. Some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites. A cornerstone policy is to ensure that new development in our neighbourhoods respects the existing physical character of the area, reinforcing the stability of the neighbourhood. (Official Plan 2-30)
16. 16Ms. Dexter filed a motion to study laneway housing by Councillors Bilão and McMahon (July 2017):
17. 171.2.4 d) where major transit corridors exist or are to be developed, identify density targets for areas adjacent or in proximity to these corridors and stations, (Provincial Policy Statement, 2020, p 13)
18. 18129 The proposed FSI variance of 1.87 times the lot area is not unprecedented for the area.
19. 19This may be found by inputting “2018-0810”. Into the City’s by-law registry.
20. 20Notice of facts and opinions
21. 21150.8.60.40 Height (1) Maximum Height of a Laneway Suite Despite regulation 10.5.60.40(2)(B), the permitted maximum height of an ancillary building containing a laneway suite is: (A) if the ancillary building containing a laneway suite is located a minimum of 5.0 metres to less than 7.5 metres from the residential building on the lot, 4.0 metres; and (B) if the ancillary building containing a laneway suite is located 7.5 metres or more from the residential building on the lot, 6.3 metres. (By-law 569-2013)
22. 22The City’s Study of laneway suites was based on the following principles:
23. 23OPA 403 (June 26, 2018) Laneway Housing
24. 24The built form policies provide principles on key relationships of the location and organization of development, its massing and appropriate amenity within the existing and planned context to inform the built form and ensure each new building will promote and achieve the overall objectives of this Plan (Official Plan 3-10)