Stroganov (Re), 2024 ONTLAB 257

Toronto Local Appeal Body

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

Date:

2024-09-12

24 142799 S45 08 TLAB

STROGANOV (Re), 2024 ONTLAB 257

Issuance Date:

September 12, 2024

PROCEEDING COMMENCED UNDER sections 45 (1) and 45 (12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant(s):

Applicant(s):

Property Address:

101 SHELBORNE AVENUE

COA File No.:

24 118048 NNY 08 MV (A0095/24NY)

TLAB Case File No.:

24 142799 S45 08 TLAB

Hearing Date(s):

Tuesday, August 27, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member Y. HERSCHER

People Type

First Initial. Last Name

Representative

Applicant

Appellant

Expert Witness

INTRODUCTION AND CONTEXT

1This is an appeal by the Applicant, V. Stroganov, of the City of Toronto Committee of Adjustment’s refusal of an application for two variances to the City’s comprehensive Zoning By-law 569-2013 to reduce the minimum front yard and rear yard soft landscaping requirements, respectively, on the site known municipally as 101 Shelborne Avenue (subject property).

2The Committee of Adjustment refused the application on April 11, 2024 and, on May 1, 2024, the Applicant, through his solicitor, appealed the Committee of Adjustment’s refusal to the Toronto Local Appeal Body (TLAB).

3The appeal was heard before me, sitting as the TLAB panel Chair, on August 27, 2024.

LEGISLATIVE AND POLICY FRAMEWORK

4Provincial Interest - Section 2 of the Planning Act

A decision of the TLAB shall have regard to matters of provincial interest, as enumerated in clauses 2 (a) through (s) of the Planning Act.

5Provincial Plans and Policy Statements – Section 3 of the Planning Act

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

6Variance – Section 45(1) of the Planning Act

In considering an application for variance from the zoning by-law, the TLAB must be satisfied that an application meets the four tests under section 45(1) of the Planning Act. The tests are whether the variance,

is minor,
is desirable for the appropriate development or use of the land,
maintains the general intent and purpose of the official plan, and
maintains the general intent and purpose of the zoning by-law.

THE APPLICATION

7The original application before the Committee of Adjustment requested two variances from Zoning By-law 569-2013 as follows:

Chapter 10.5.50.10(1), By-law No. 569-2013

The minimum required front yard soft landscaping is 75.00%. The proposed front yard soft landscaping is 0.00%.

Chapter 10.5.50.10(3), By-law No. 569-2013

A lot with a residential building, other than an apartment building, must have minimum of 50.00% of the rear yard for soft landscaping. The proposed rear yard soft landscaping area is 0.00%.

8Upon appeal to the TLAB, the appellant proposed one revision to the original application that was before the Committee of Adjustment.

9The revised application seeks relief from the Zoning Bylaw 569-13 to permit 15% soft landscaping in the front yard and proposes a 3.0m wide soft landscaping strip along the eastern lot line of the subject property. The original application proposed 0% soft landscaping in the front yard.

10The revised proposal does not amend the variance requested in the original application related to the proposed soft landscaping in the rear yard.

11As a consequence, the revised application requests the following two variances:

Chapter 10.5.50.10(1), By-law No. 569-2013

The minimum required front yard soft landscaping is 75.00%. The proposed front yard soft landscaping is 15.00%. (see paragraph 12 below)

Chapter 10.5.50.10(3), By-law No. 569-2013

A lot with a residential building, other than an apartment building, must have minimum of 50.00% of the rear yard for soft landscaping. The proposed rear yard soft landscaping area is 0.00%.

12To clarify, the revised application now proposes to increase the soft landscaping within the front yard from 0% to 15%, whereas the zoning by-law requires a minimum of 75%. However, as the oral evidence demonstrated, the 15% proposed increase actually reflects a proposed increase to 30%. The 75% minimum requirement for soft landscaping does not apply to the entire front yard, but only to the 50% of the front yard that requires landscaping – once the driveway area is eliminated. In other words, the zoning by-law provides that the front yard area must be comprised of less than 50% driveway. Of that 50% landscaping minimum, 75% is required to be soft landscaping. Of that 75% soft landscaping area, the Applicant proposes that it be increased to 30%, which is equivalent to 15% of the entire front yard area.

13On behalf of the Applicant, oral evidence was provided by Lincoln Lo, whom I qualified as an expert witness to provide opinion evidence in the area of land use planning. Mr. Lo’s evidence is set out in his Expert Witness Statement.

14There were no other parties or participants at the hearing, or any statements or correspondence submitted to the TLAB supporting or objecting to the application.

15I advised those present at the hearing that I had visited the subject site and reviewed the pre-filed materials, but I also indicated that it is the evidence heard at the hearing that is of importance.

SUMMARY OF EVIDENCE

16The only evidence proffered at the hearing was by the Applicant’s expert planner. His evidence is described below in paragraphs 17 – 45 below. Two exhibits were marked:

Exhibit 1 – Document Disclosure, submitted to TLAB on July 26, 2024
Exhibit 2 – Committee of Adjustment Notice of Decision, dated April 11, 2024

Property and Chronology

17The property is an urban lot with frontage onto Shelborne Avenue containing a two-storey single-detached dwelling with an attached garage and driveway connecting to Shelborne Avenue.

18The two-storey dwelling was constructed in 2014 and replaced the previous bungalow on the subject property. The subject property was purchased by the Applicant, the current owner, in 2016.

19At the time of construction of the new dwelling, a stormwater management report was completed in June 2014. As part of the new home construction, new stormwater management infrastructure was installed to manage water runoff from the site. A soils report was also completed in 2014.

20The change in built form (from bungalow to two-storey dwelling) necessitated the re-grading of the front and rear yards to incorporate the stormwater management plan, as proposed in the stormwater management report.

21The expert planner testified that it was his understanding that the revised grading and the installation of the stormwater management system, combined with the poor soil conditions, may have made it difficult to maintain grass/plantings within both yards of the property.

22In 2021, the Applicant installed hardscaping in both the front and rear yards, resulting in no soft landscaping in either the front or rear yards.

23The stone hardscaping design in the front and rear yards consists of the following design elements,

the slight regrading of both yards to achieve a larger flat area, while still providing the necessary grading towards the stormwater management infrastructure,
stone retaining walls along the front yard property line, as well as the southern rear yard property line, and
reconfiguration and consolidation of the steps in the front yard to the portico entrance.

24In anticipation of the TLAB hearing, the Applicant retained the engineering firm used in 2014 to provide an update to its 2014 report in order to ascertain whether the stormwater management system was still performing according to its initial parameters.

25The revised application proposes to replace a strip of stone hardscaping along the western property line in the front yard with grass/plantings/soft landscaping. The remainder of the front yard will remain as the existing driveway and stone hardscaping. The rear yard is to remain unchanged and will consist entirely of hard landscaping.

26The revised application provides a minimum of 15% of the total front yard as soft landscaping, which represents a minimum 30% of the required landscaping within the front yard being soft landscaping, whereas 75% is required. The proposal brings the development closer to the zoning by-law minimum for soft landscaping requirements in the front yard than what exists currently but still requires a variance.

27The rear yard landscaping is proposed to remain unchanged as it is currently graded and designed to direct stormwater to the underground storage system located centrally in the rear yard. A variance is required to recognize the current soft landscaping at 0% from the current requirement of 50% soft landscaping.

Provincial Plans and Policy

28With respect to provincial plans and planning policy, the expert witness opined that the proposed application is largely a local planning matter that does not give rise to matters of provincial interest under the Planning Act and that the application is consistent with the Provincial Policy Statement and conforms with the Growth Plan for the Greater Golden Horseshoe.

Official Plan

29The subject property is designated as Neighbourhoods in the City of Toronto Official Plan. This designation permits a wide range of lower scale residential uses including single-detached dwellings.

30Mr. Lo undertook an analysis of both the broader and immediate areas within the context of sections 2.3 and 4.1 of the official plan. The neighbourhood’s character is physically stable, consisting exclusively of detached homes, and has been subject to considerable re-investment in the existing dwellings. The area has a wide range of dwelling styles as well as front yard and rear yard conditions that have evolved over time.

31After having visited the subject property and the neighbourhood and conducted a detailed lot analysis of both the immediate and broader area, it was Mr. Lo’s opinion that the application respects and reinforces the general physical pattern of both the immediate and broader contexts. He submitted that the application represents a modest change to the streetscape, which is contemplated in the Neighbourhoods designation in the official plan.

32In his opinion, there are numerous prevailing patterns of landscaped open space within the immediate and broader contexts including patterns where the majority and/or entirety of the front yard landscaping consists of hardscaping, such as what is proposed for the subject property. Mr. Lo testified that, based on a lot analysis completed using GIS measurements as well as his own visual observations, there was a significant deficiency of soft landscaping across the front yards of many of the lots in the neighbourhood

33With respect to landscaping, the properties along the subject street and in the broader area have a varied percentage of soft landscaping in the front yards. Numerous newer dwellings incorporate an integrated two-car garage and have wide driveways that make up a large portion of the front yard, leaving less opportunity to incorporate soft landscaping.

34Mr. Lo testified that the rear yard provides for a significant amount of outdoor amenity space. From his analysis of aerial photography in the vicinity, the amount of landscaped open space (inclusive of soft and hard landscaping) in the rear yard of the subject property is similar to several of the other dwellings within the broader context. There are numerous dwellings within the broader context that have constructed rear yards that are mostly/entirely hard landscaping to accommodate patios and/or sports courts and thus the subject property does not exhibit a unique rear yard condition.

35It was Mr. Lo’s opinion that the requested variances will result in a development that is compatible with other dwellings in the immediate neighbourhood and the larger broader context, and further that the application will respect and reinforce the existing character of the neighbourhood as required by section 4.1.5 of the official plan and, specifically, clause (g) prevailing patterns of rear and side yard setbacks and landscaped open space.

Zoning By-law

36In Mr. Lo’s expert opinion, the intent of the minimum soft landscaping in the front yard provision is to,

ensure the driveway does not dominate the streetscape,
assist in controlling stormwater runoff, and
enhance/maintain the visual appearance from the streetscape.

37The driveway width and area remain unchanged throughout this proposal and will continue to meet the zoning by-law performance standard that requires less than 50% of the front yard to be dedicated for driveway purposes. As such, the driveway does not dominate the streetscape.

38The stormwater runoff on the property is controlled through a stormwater storage system below grade. As per the 2014 report (Attachment 4 to Mr. Lo’s Expert Witness Statement, page 72 in Exhibit 1) by Masongsong Associates Engineering Limited (Masongsong), a rear-yard catch basin with associated stormwater collector drain, stormwater evacuation pump tank and piping were installed on the property. The stormwater collector was placed in the middle of the backyard. Additionally, roof leaders were directed to the stormwater management system with overflow pipes discharging away from the building toward the rear (south) of the lot.

39The 2014 report stated that the implementation of the stormwater management infrastructure would result in lower water runoff rates post-development (with pre-development being the former bungalow dwelling).

40In advance of the TLAB hearing date, the Applicant retained the same engineering firm used in 2014 to provide an update to its 2014 report in order to ascertain whether the stormwater management system that had been installed in 2014 was operating in the way it was intended. The storm drainage review (Attachment 5 to Mr. Lo’s Expert Witness Statement, page 91 in Exhibit 1) prepared by Masongsong dated July 2024 confirmed this.

41The July 2024 review confirmed that the stormwater system continues to function as intended on the property, even subsequent to the landscaping changes that have been made to the property since 2014. The gaps between the pavers effectively permeates storm water into the subgrade layers, which in turn would conduct the drainage into the subterranean infiltration gallery. Moreover, the 2024 review concluded that there was no evidence of storm drainage directed onto adjacent properties in the form of a swale, channel, pump, or other pointed discharge during the historically significant rain event on July 16, 2024.

42In Mr. Lo’s expert opinion, the intent of the provision regarding the minimum soft landscaping in the rear yard is to,

ensure that stormwater runoff is controlled, and
create sufficient space for outdoor recreational areas.

43Given that, generally speaking, the rear yards are likely the largest areas used to collect stormwater, it is his opinion that the minimum soft landscaping requirement in the zoning by-law is mainly to control stormwater. Typically, soft landscaping is used to absorb stormwater through infiltration. However, according to the soils report (Appendix B to Attachment 4 of Mr. Lo’s Expert Witness Statement, page 88 of Exhibit 1) prepared by Candec Engineering Consultants Inc., the soil within the property is not entirely conducive to infiltration or percolation as a means of storm water disposal. The stormwater management system that was installed is designed to compensate for these limitations.

44It is Mr. Lo’s opinion that the rear yard provides an adequate amount of outdoor amenity space. The outdoor amenity space provided is comparable to other dwellings in the broader context.

45It is also Mr. Lo’s opinion that the proposed rear yard soft landscaping variance will result in development that is compatible with the neighbourhood and will meet the intent of the zoning by-law.

ISSUES AND ANALYSIS

46As in the matter at hand, where there is an ‘as-built’ situation without a permit, the general approach employed by the TLAB is to treat the illegal construction or circumstance as immaterial for planning purposes. Owners are neither penalized nor given extra latitude, and the variances are considered as if the proposal had not already been built or installed.

47As outlined in paragraphs 4 through 6 above, the obligation is on the Applicant to demonstrate to the decision-maker that the requirements set out under the Planning Act, including the four tests under section 45(1), are met relating to the variances; there is no right to a variance.

48A decision of the TLAB shall have regard to matters of provincial interest as described in section 2 of the Planning Act.

49I accept the evidence of the expert planner that the application has regard to matters of provincial interest as stated in section 2 of the Planning Act, is consistent with the Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe.

50In considering an application for variance from the zoning by-law, the TLAB must be satisfied that an application meets the four tests under section 45(1) of the Planning Act. The tests are whether the variance,

is minor,
is desirable for the appropriate development or use of the land,
maintains the general intent and purpose of the official plan, and
maintains the general intent and purpose of the zoning by-law.

51I find that the application conforms with the City’s official plan, specifically with respect to the relevant policies on healthy neighbourhoods and the development criteria in section 4.1.5 of the official plan for lands designated as Neighbourhoods.

52I accept Mr. Lo’s evidence that the application will not result in development that is incompatible with the neighbourhood and will contribute to the continued evolution of the neighbourhood streetscape. The hard landscaping is a reflection of what is evolving in the neighbourhood and reflects the increasing desire of homeowners to adopt low/no-maintenance landscaping. There are many newer constructed homes where most of the front yard landscaping consists exclusively of hard landscape materials.

53According to the expert planner’s testimony, one of the primary purposes for the soft landscaping required in the zoning by-law is to address the matter of stormwater run-off. The installation of the stormwater management system on the subject property ensures that stormwater run-off will not be an issue for this property or the neighbouring properties.

54The stormwater management infrastructure appears to be dealing with the poor soils condition on the property in that it is functioning successfully to address the stormwater run-off. I find Mr. Lo’s evidence credible that this infrastructure facilitates the same result on the subject property as would the soft landscaping requirement in the zoning by-law.

55Therefore, I find that the requested variances, individually and collectively, meet the general intent and purpose of the official plan and zoning by-law, and are desirable for the appropriate development of the site.

56The remaining test of ‘minor’ is, to my mind, the most critical with respect to this application, since the changes proposed to the soft landscaping requirements are numerically significant – from 50% to 0% in the rear year and from 75% to 30% in the front yard.

57To what extent a variance can be considered “minor” was addressed by the Divisional Court in McNamara Corporation Ltd. et al. v. Colekin Investments Ltd (1977 1977 CanLII 1050 (ON HCJ), CarswellOnt 332, [1977] 1 A.C.W.S. 668, [1977] O.J. No. 2222, 15 O.R. (2d) 718, 2 M.P.L.R. 61, 76 D.L.R. (3d) 609) in which the Court stated that the question whether a variance is minor must in each case be determined by the committee of adjustment or, upon appeal, the tribunal in the light of the particular facts and circumstances of the case. It is up to the committee of adjustment or the tribunal to determine the extent to which a by-law provision may be relaxed and a variance still considered to be "minor".

58With the multitude of by-laws covered by section 45 of the Planning Act, the Court found that there must be many instances where full exemption can properly be considered a minor variance. It is within the jurisdiction of the committee of adjustment and tribunal to make that determination.

59Based on the evidence presented, I accept that the proposed amount of soft landscaping in the front yard is similar to what exists on numerous other properties throughout the immediate and broader context. Given the installation of the stormwater management system, the impact of the reduced soft landscaping in both the front and rear yards is minor.

60From a public realm perspective, the proposed hard landscaping in the rear yard would be imperceptible from the street and does not create any undue adverse impacts on the streetscape or the adjacent neighbours.

61In terms of any perceived negative impacts by local residents, no written or verbal public objections were filed with the TLAB. There were no objections raised by any City department, which is typically understood as representing a position of no objection to the proposal.

62Therefore, I find that the variances requested are minor in nature.

63I am satisfied that the proposal represents good land use planning and is in the public interest. Subject to the conditions below, the application for the two variances satisfies the four tests set out in section 45(1) of the Planning Act.

64Finally, pursuant to section 45(18.1) of the Planning Act, on an appeal, the tribunal may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to persons and public bodies entitled to receive notice of the original application.

65However, under section 45(18.1.1) of the Act, the tribunal is not required to give notice if, in its opinion, the amendment to the original application is minor. In the matter at hand, the TLAB finds that the amendment to the application is minor and no notice is required.

DECISION AND ORDER

66The TLAB orders that the appeal is allowed, and that the following variances to the zoning by-law are authorized, subject to the two conditions outlined in paragraph 67 below:

Chapter 10.5.50.10(1), By-law No. 569-2013

Whereas the minimum required front yard soft landscaping in the zoning by-law is 75.00%, the front yard soft landscaping will be 30.00% (equivalent to 15% of the total front yard area).

Chapter 10.5.50.10(3), By-law No. 569-2013

Whereas the zoning by-law requires that a lot with a residential building, other than an apartment building, must have minimum of 50.00% of the rear yard for soft landscaping, the rear yard soft landscaping area will be 0.00%.

67There are two conditions to approval of the minor variances as follows:

(1) The development shall be constructed substantially in accordance with the front year landscaping shown on the revised site plan, shown as Attachment 3 to Lincoln Lo’s witness statement (included in Exhibit 1) and marked as Appendix 1 to this order, prepared by Malone Given Parsons Ltd, dated July 24, 2024.

(2) The stormwater management system, as described in the Stormwater Management Report for 101 Shelborne Avenue prepared by Masongsong Associates Engineering Associates Limited and dated June 2014, shown as Attachment 4 to Lincoln Lo’s witness statement (included in Exhibit 1) and marked as Appendix 2 to this order, shall be operated on an ongoing basis substantially in accordance with the 2014 report.

Y. Herscher

Panel Member

APPENDIX 1

Y. Herscher

Panel Member

APPENDIX 2