Mokhtari (Re), 2024 ONTLAB 247

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-08-07

24 135288 S45 15 TLAB

Mokhtari (Re), 2024 ONTLAB 247

Issuance Date:

August 7, 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):

Applicant(s):

Property Address:

22 MANN AVE

COA File No.:

23 230225 NNY 15 MV (A0615/23NY)

TLAB Case File No.:

24 135288 S45 15 TLAB

Hearing Date(s):

August 1, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member T. Kezwer

People Type

First Initial. Last Name

Representative

Appellant

Participant

730099 ONTARIO CORP

INTRODUCTION AND CONTEXT

1The appellant appeals a denial by the North York panel of the Committee of Adjustment for a variance required to construct a parking pad in the front yard of the property located at 22 Mann Ave (the “Subject Property”). The appeal is being allowed by the Toronto Local Appeal Body (the “Tribunal”).

2The Subject Property located on the west side of Mann Avenue, a local road consisting of one block within the first block west of Bayview Avenue and south of Eglinton Avenue East.

3The Official Plan designation for the Subject Site is Neighbourhoods and the zoning is R (Residential Zone) pursuant to the City of Toronto Zoning By-law 569-2013.

4Prior to the hearing I visited the Subject Property and familiarized myself with the neighbourhood in which it is situated.

5Two exhibits were entered into the record for this hearing:

a. Exhibit 1: Expert Witness Statement of Franco D. Romano received by the Tribunal on July 2, 2024.

b. Exhibit 2: Supplemental Expert Witness Statement of Franco D. Romano received by the Tribunal on July 25, 2024.

6I will now provide a brief synopsis of the opening and closing statements made by Mr. Kemerer, legal counsel for the appellant. Mr. Kemerer asserted in his opening statement that the appellant is requesting a change in the minor variance, which is an improvement over the previously requested variance as there is no longer a soft landscaping variance being requested. Instead, the variance deals with the reduction in the number of lawful parking spaces. Previously, the requested variance was as follows:

Chapter 10.5.50.10. BY-LAW 569-2013

Minimum of 75% of the front yard landscape must be soft landscaping.

The proposed soft landscaping is equal to 62%.

7The new requested variance is

Chapter 200.5.10.11.(1)(C), BY-LAW 569-2013

The number of lawful parking spaces for a lawfully existing building may not be reduced.

The lawful existing parking space in the rear yard is to be removed, and a replacement parking space is not proposed on the lot (front parking space is deemed insufficient as it is located mostly on the City boulevard).

8Mr. Kemerer asserted that the variance being requested is a technical variance, which is also minor in nature, as it seeks to prevent too much parking on the Subject Property.

9Mr. Kemerer argued in his closing statement that the Tribunal should accept the comprehensive evidence that was provided by the appellant’s expert planning witness, Mr. Romano. In addition, Mr, Kemerer asserted that the proposal is practical, functional, and will allow for a parking space in the front yard which is consistent with the pattern of development in the geographic neighbourhood as outlined by Mr. Romano in his evidence.

10I will now outline the legal framework guiding this matter.

THE LEGISLATIVE AND POLICY FRAMEWORK

11Provincial Interest - S. 2

A decision of the Tribunal shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

12Provincial Policy – S. 3

A decision of the Tribunal must be consistent with the 2020 Provincial Policy Statement and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area.

13Variance – S. 45(1)

In considering the application for a variance from the Zoning By-law, the Tribunal must be satisfied that the application meets all of the four tests under s. 45(1) of the Act. The tests are whether the variance:

maintains the general intent and purpose of the Official Plan;
maintains the general intent and purpose of the Zoning By-laws;
is desirable for the appropriate development or use of the land; and
is minor.

14The requested variance before the Tribunal is:

Chapter 200.5.10.11.(1)(C), BY-LAW 569-2013

The number of lawful parking spaces for a lawfully existing building may not be reduced.

SUMMARY OF EVIDENCE

15Franco D. Romano was qualified as a planning expert to give his planning opinion on the matter before the Tribunal. Mr. Romano has extensive experience as a land use planner, having been the founding Principal of Action Planning Consultants since 1998. Mr. Romano worked as a land use planner prior to founding his land use planning consulting firm.

16Mr. Romano explained that currently there is a mutual right of way shared between the Subject Property and 24 Mann Avenue to the north. The right of way leads to a lawful parking pad in the rear yard. However, this right of way is undersized and therefore limits the type of vehicle which can park in the rear of the property. The requested variance is for the removal of the existing parking pad in the rear of the property.

17The appellant intends to create a front parking pad which is partially on the Subject Property and partially within the City boulevard. The proposed parking pad will be angled 45 degrees to the property line, and will use the existing curb cut for the mutual right of way. The existing curb cut is proposed to be used as this was the preference indicated by transportation planning and parking permit staff.

18The reason the requested variance states that a replacement parking space is not proposed on the lot is that the proposed space is partially on the City boulevard. This means that a parking licence is required, and it involves a different process that is not handled by zoning examiners. In other words, the City zoning examiners do not recognize the parking licence application process. Mr. Romano provided his opinion that zoning by-laws apply to private property, and therefore, a parking space needs to be fully on private property for zoning staff to say there is a replacement parking space being provided.

19Mr. Romano provided his opinion that the proposal is permitted under the City’s municipal code, subject to applying for a licence for parking, and that the licence application cannot proceed until the minor variance application file is closed.

20In the Examiners’ Notice dated July 12, 2024, the City zoning examiner confirmed that there is no landscaping variance requirement. Mr. Romano provided his opinion that landscaping is now in excess or more than the zoning by-law requirement, and therefore opined that the amendment in the minor variance being sought is minor in nature, and in fact represents an improvement over the previously sought variance, and that no further notice should be required.

21The original minor variance application included a Zoning Review Waiver signed by the applicant. However, the same plans have been reviewed by a City zoning examiner, and the landscaping has been found to be zoning by-law compliant, for total landscaping and for soft landscaping. The proposal no longer requires a landscaping variance.

22Mr. Romano opined that the current rear yard parking space is lawful, however, it is not functional. The proposal calls for a practical and functional parking space which is similar to other parking solutions in the geographic neighbourhood. Rear yard parking is not a common feature of the geographic neighbourhood due to the compact lot sizes. In addition, Mr. Romano noted that there is no street permit parking on Mann Avenue, and that parking solutions beyond the standard three hour maximum is to be on a private property or licenced parking on the boulevard.

23Mr. Romano opined that the prevailing characteristics of the parking solutions include front yard parking along with front yard parking that overlaps the City boulevard, and that the municipal code allows for this type of parking solution to occur. Mr. Romano also opined that the 24 Mann Avenue parking pad is angled in a mirror image to that which is proposed on the Subject Property.

24To the best of Mr. Romano’s knowledge, there have been no other minor variance applications for this property.

25Mr. Romano reviewed the four tests for a minor variance and provided his opinion that the proposed minor variance meets each of the required tests.

ISSUES AND ANALYSIS

Two Preliminary Matters

26Exhibit 2, the Supplemental Expert Witness Statement of Mr. Romano was late filed. The reason for this is that Mr. Romano was waiting for the Examiners’ Notice which would outline the minor variance required for the proposal on the Subject Property.

27The Tribunal’s Practice Direction 7 deals with Late Filings. The Practice Direction states that “In general, save for extenuating circumstances, minimal non-prejudicial delay or where consented to by other Parties, the late filed Applicant’s Disclosure will not be admitted into the record.”

28In the case at bar, I accept the late filing. This is because: (a) there were extenuating circumstances in that Mr. Romano received an Examiners’ Notice which outlined the minor variance requirements for the Subject Property, and (b) there are no other Parties who may be prejudiced by the late filing.

29The second preliminary item that needs to be dealt with involves subsection 45(18.1.1) of the Planning Act. When the application was before the Committee of Adjustment on March 21, 2024, the minor variance that was requested was different from the minor variance that is now being requested before the Tribunal. I note that the proposal for the removal of the rear yard parking pad and the addition of the front yard parking pad has remained the same.

30The Planning Act at subsection 45(18.1.1) provides that no new public notice is required under subsection 45(18.1) if in the Tribunal's opinion, the amendment to the original application is minor. There is no further statutory guidance on what constitutes a minor amendment. In my opinion, context is very important when considering whether an amendment to an original application is minor.

31In the case at hand, the plans that were before the Committee of Adjustment identify that the proposed parking pad is in the front yard, that it uses the existing curb cut, and that the rear parking pad is to be removed. I find that the requested variance that was not originally identified in the original Committee of Adjustment application was a feature of the proposal that would be identifiable by any interested party who conducted their due diligence and examined the proposal that was before the Committee of Adjustment. Therefore, the amendment to the original application is minor, and pursuant to subsection 48(18.1.1) of the Planning Act, no new notice is required for the Tribunal hearing.

Provincial Interest

32 Section 2 of the Planning Act identifies matters of provincial interest to which the Tribunal shall have regard.

33I find that various matters of provincial interest are supported by the proposal, and that the most relevant subsections of section 2 of the Planning Act include: (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing; (p) the appropriate location of growth and development; and (r)(i) the promotion of well-designed built form.

34I do not feel it is necessary to review the cited provisions in detail in this decision as the matters of provincial interest provide the framework within which the various planning documents such as the Official Plan and Zoning By-Law operate.

35In conclusion, I find that various matters of provincial interest are supported by the subject proposal, including the matters of provincial interest which are cited above.

Provincial Policy Statement and Growth Plan for the Greater Golden Horseshoe

36Mr. Romano provided his opinion that the proposal is consistent with the Settlement Area-related policies of the 2020 Provincial Policy Statement, and conforms to, and does not conflict with, the Settlement Area, Delineated Built Up Area policies of the 2019 Growth Plan as amended in 2020.

37I do not feel it is necessary to review these policies in greater detail in this decision as these documents are general in nature and provide the framework within which the Official Plan and Zoning By-Law operate.

38I accept Mr. Romano’s opinion and find that the proposal is consistent with the Provincial Policy Statement (2020) and conforms to the Growth Plan for the Greater Golden Horseshoe (2019).

Policy 4.1.5 of the Official Plan

39The Subject Property is designated Neighbourhoods in the City of Toronto’s Official Plan. Policy 4.1.5 outlines Development Criteria for Neighbourhoods.

40Pursuant to Policy 4.1.5 of the Official Plan, Mr. Romano delineated an Immediate Context and Broader Context. Mr. Romano’s neighbourhood study area is bounded by the interior residential lands west of Bayview Avenue and south of Eglinton Avenue East, westerly to Forman Avenue and southerly to Hillsdale Avenue East. The geographic neighbourhood consists of 650 residential properties. Along Mann Avenue, the immediate context, there are 40 residential properties.

41The geographic neighbourhood can be seen below.

Exhibit 1: Page 27, Neighbourhood Context Map Front Yard Parking

42To draw the Neighbourhood boundary, the Official Plan lists nine criteria: “zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and human-made dividing features”.

43I will not be reviewing these criteria in detail in this decision, suffice it to say that I am satisfied that these criteria have been met in the delineation of the geographic neighbourhood. For example, within the geographic neighbourhood street permit parking is not available, front yard parking spaces are permitted subject to obtaining a parking permit from Transportation Services, Permits and Enforcement Section, and parking spaces on private property in the side or rear yard are permitted.

44I accept the geographic neighbourhood delineated by Mr. Romano, including the immediate and broader contexts.

Planning Act Section 45(1) Test

45I will now go through the four statutory tests and my findings on each test for the requested variance.

Does the proposed variance maintain the general intent and purpose of the Official Plan?

46The Official Plan is a policy document crafted to ensure that new development within established neighbourhoods contains compatible, substantively complementary and harmonious physical characteristics.

47Mr. Romano is of the opinion that the general intent and purpose of the official plan, and its policies relating to parking, neighbourhood character, housing and natural environment, is satisfied by the proposal. Mr. Romano’s opinion is that the proposal utilizes the existing curb cut and driveway access, and represents a compatible, functional parking space that fits in well with the area.

48Mr. Romano’s opinion is that the conventional Official Plan assessment under the Neighbourhoods development criteria 4.1.5 relates to new development where building construction is involved. In this instance, there is no new building construction. The proposed removal of the rear yard parking space to add a front yard parking space is not a conventional development, but there are policies which deal with non-construction related characteristics relative to the proposed parking space. Mr. Romano’s opinion is that the proposal appropriately implements the Official Plan, satisfying the applicable development criteria.

49Mr. Romano cited various policies, including Policy 2.3.1.1, 3.1.3.4, 3.2.2, 3.4, and 4.1.8. I agree with Mr. Romano’s opinion that the proposal meets the general intent and purpose of these specific policies.

50In addition, Mr. Romano cited Official Plan Policy 4.1.5, opining that there are several development criteria which are worth considering. I will briefly review these below.

51a. Prevailing location, design, and elevations relative to the grade of driveways and garages.

The existing above grade driveway is being retained. The current shared driveway access is to be used to access the above grade front yard parking space. Mr. Romano provided his opinion that front yard parking spaces prevail throughout the neighbourhood and immediate context. Mr. Romano’s opinion is that the proposal will respect and reinforce this characteristic. The proposal is similar in layout to other front yard parking spaces, including 26 Mann Avenue.

52b. Prevailing setbacks of buildings from the street or streets.

There is no change to the existing building setback from the street. Mr. Romano’s opinion is that the compact nature of front yard setbacks means that front yard parking spaces will occupy larger portions of front yards, as compared to neighbourhoods where more expansive front yards exist, such as in less compact neighbourhoods. Mr. Romano’s opinion is that the proposal helps to maintain the prevailing setback of buildings from the street.

53d. Continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood.

Mr. Romano opined that front yard parking is a prominent feature of the neighbourhood, including the immediate context. The neighbourhood is one of a few within Toronto where front yard parking permits are accepted and exist. Mr. Romano’s opinion is that front yard parking, whether by permit or otherwise, represents a feature that contributes to the existing physical character in a meaningful manner, and the proposal will respect and reinforce this feature appropriately

54In conclusion, I accept Mr. Romano’s opinions as outlined above, and I find that the proposed variance maintains the general intent and purpose of the Official Plan.

Does the proposed variance maintain the general intent and purpose of the Zoning By-Law?

55The Subject Property is zoned R-residential zone under Zoning By-law 569-2013. The R zone permits a diversity of residential building types. The overall general intent and purpose of the zoning by-law is to achieve orderly, compatible development.

56Mr. Romano’s opinion is that the proposal satisfies this variance test. The proposal accommodates parking in the front yard while using the existing shared, consolidated driveway and curb cut, minimizes the size of the parking space and related disturbances, exceeds the minimum required landscaping, and avoids interference with the sidewalk and street. The proposal implements similar, compatible parking and landscaping characteristics to that which is found on the street and in the surrounding area.

57Mr. Romano’s opinion is that the general intent and purpose of the zoning by-law is satisfied because a functional and practical parking space is being provided.

58I find that the proposed variance maintains the general intent and purpose of the Zoning By-law.

Is the proposed variance desirable for the appropriate development or use of the land?

59Mr. Romano’s opinion is that the proposal addresses an existing deficiency, which is that the existing undersized driveway does not allow for a practical vehicle parking area on the Subject Property.

60Mr. Romano provided his further opinion that the proposal has been designed to reflect the Transportation Services advice to utilize the existing driveway access, rather than create a new curb cut and driveway access as originally proposed. The revised proposal results in the need to either remove or relocate an existing City tree, which is supported by the consulting arborist, M&MJ Design Consultants in their report dated June 25, 2024, which is found in Exhibit 1.

61Mr. Romano’s further opinion is that the proposal is desirable for the appropriate development or use of the land, building or structure given the ability to facilitate a functional, practical parking space to service the dwelling in a manner that is consistent with the surrounding dwelling parking solutions.

62I agree with Mr. Romano’s opinions as outlined above, and find that the proposed variance is desirable for the appropriate development and use of the land.

Is the proposed variance minor?

63Mr. Romano provided his opinion that the proposal creates no unacceptable adverse impacts, and the order of magnitude of the variance request is minor.

64Mr. Romano’s opinion is that the proposal is consistent with the prevailing parking solutions which consist of front yard parking – on private and public land - and generates no unacceptable adverse impacts. The creation of a usable front yard parking space instead of a lawful but unusable rear yard parking space is minor.

65Mr. Romano’s opinion is that the proposal follows the existing patterns of front yard parking spaces and landscaping. The proposal utilizes the existing curb cut, shared driveway and does not interfere with the sidewalk or street. There is no change to the existing on street temporary parking supply.

66I agree with Mr. Romano’s opinion, and find that the proposed variance is minor and does not result in an impact that rises to the level of undue adverse impact.

CONCLUSION

67I find that the requested variance meets the four statutory tests for a minor variance outlined in section 45(1) of the Planning Act.

DECISION AND ORDER

68The appeal is allowed subject to the following conditions:

a. The property owner apply for and obtain a front yard parking permit as requested by City Transportation staff.

b. Submission of a completed 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 Tress on City Streets.

T. Kezwer

Panel Member