Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-11-01

24 162892 S45 08 TLAB

Ridgehill Properties Inc (Re), 2024 ONTLAB 273

FINAL DECISION AND ORDER

Issuance Date:

September 20, 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):

RIDGEHILL PROPERTIES INC

Applicant(s):

E. STRANGIS

Property Address:

8 RIDGE HILL DR

COA File No.:

24 127875 NNY 08 MV (A0181/24NY)

TLAB Case File No.:

24 162892 S45 08 TLAB

Hearing Date(s):

September 18, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member B. Mullock

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

E. STRANGIS

Appellant

RIDGEHILL PROPERTIES INC.

M. LASKIN

Party (TLAB)

A. KAUFMAN

Party (TLAB)

C. FINER-TOREN

Participant

V. STERLING

INTRODUCTION AND CONTEXT

1Ridgehill Properties Inc. (the “Appellant”) is the owner of a property municipally known as 8 Ridgehill Drive (the “Property”).

2This is an appeal by the Appellant of the refusal by the City of Toronto (City) Committee of Adjustment’s (CoA) of a March 2024 CoA application, containing three (3) variances relating to the property.

3The purpose of the appeal is to permit the Appellant to construct a 4 storey, 10 unit residential building.

4What is now before the TLAB is whether the three variances, which were required by Zoning in order to approve a proposed fourth storey, meet the Four Tests set out in the Planning Act?

5Do the variances proposed maintain the general intent and purpose of the Official Plan and the Zoning By-law, and are they Minor and Desirable?

The Background

6Ridgehill Properties Inc. wishes to construct an addition to an existing 2 storey apartment building. The Appellant wishes to render it a 4 storey, 10 unit apartment building.

7A previous CoA decision in December 2023 involved adding a third storey to the existing residential building, resulting in 10 units. That approval allowed for variances to front and rear yard setbacks, side yard setbacks, driveway width, building depth, soft landscaping, waste storage, parking space number and dimensions, platform encroachment, bicycle space total number and width. Totalling 19 in total, the variances reflected both existing conditions and proposed conditions.

8The December 2023 CoA approval remains in effect. It allows the construction of an addition to the subject property built on the existing footprint. Much, if not all, of the related construction is yet to take place.

9Ridgehill Properties Inc. now wishes to expand the building into a four-storey, 10 unit residential building. On May 23, 2024, Committee of Adjustment refused the associated March 2024 application, which sought approval for a four-storey building.

10The owner appealed the CoA decision to the Toronto Local Appeal Body (TLAB), which set a Hearing date of September 18, 2024, to hear the appeal.

11The obligation is on Ridgehill Properties Inc.to demonstrate to the decision-maker that the four tests are met on the balance of probabilities. There is no right to a variance.

The Property

12The subject property is located on the north side of Ridge Hill Drive. It is the second apartment building west of Bathurst Street, in former Toronto.

13The property is designated Apartment Neighbourhoods on Map 17 of the City Official Plan (OP) and zoned Residential (R) under city-wide Zoning By-law 569-2013.

The Neighbourhood Context

14The surrounding area consists of residential development. Four- and five-storey apartment buildings are located to the east, north and south of the subject property, in what amounts to a low-rise apartment building corridor along the west side of Bathurst Street. Detached residential properties are located immediately to the west.

15The adjacent apartment buildings are located on two local roads, Ridge Hill Drive and to the north, Shallmar Blvd, and on the major road, Bathurst Street to the east.

The Redevelopment Proposal

16The relief sought from the provisions of the Zoning By-law requests three (3) variances in total. They involve variances to FSI, and to both west and east side yard setbacks, as follows:

1. Chapter 10.10.40.40.(1)(A), By-law 569-2013

The permitted maximum floor space index is 1.00 times the area of the lot. The proposed floor space index is 1.66 times the area of the lot.

2. Chapter 10.10.40.70.(3(C)(ii), By-law 569-2013

The required minimum side yard setback for an apartment building is 7.5m with a height more than 12m.

The proposed west side yard setback is 0.69m.

3. Chapter 10.10.40.70.(3(C)(ii), By-law 569-2013

The required minimum side yard setback for an apartment building is 7.5m with a height more than 12m.

The proposed east side yard setback is 3.1m.

THE LEGISLATIVE AND POLICY FRAMEWORK

17Provincial Interest - S. 2, Planning Act

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

18Provincial Policy – S. 3, Planning Act

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.

19Variance – S. 45(1), Planning Act

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

20I have reviewed all of the evidence and testimony related to this matter. The following summary of evidence is included to provide context for the Decision. If any point of evidence appears to have been omitted in this summary, it should not be taken to mean that such evidence was not considered. Rather, I have determined that the recitation of such evidence is not material to my reasoning, as outlined in the Issues and Analysis section.

21At the Hearing, Ian Andres was identified as the Appellant’s Legal Representative.

22The Tribunal heard evidence from four witnesses. Two neighbours, A. Kaufman and C. Finer-Toren, elected Party status at the Hearing. One neighbour, V. Sterling, elected Participant status. All three attended the Hearing on September 18, 2024.

23Counsel for the Appellant called Franco Romano, a land use planning consultant, retained by the Appellant. Mr. Romano filed an Expert Witness Statement by the requisite due date in the Notice of Hearing (Form 2).

24Mr. Franco Romano is a Registered Professional Planner (RPP), with over 25 years of land use planning experience in both the private and the public sectors and, as such, I. qualified him to provide expert opinion evidence in the area of land use planning.

25Mr. Romano reviewed the appeal in the light of the Official Plan, the Zoning By-law and the other two statutory tests.

26He noted that the City Community Planning Staff had provided no commenting memorandum to the Committee of Adjustment nor, did the City seek status at the Hearing or attend.

OFFICIAL PLAN CONSIDERATIONS

27Mr. Romano spoke to the relevant provisions of the Official Plan. The subject property is designated as Apartment Neighbourhoods and zoned R – Residential.

28Mr. Romano submitted that the design and massing of the proposed building, with step-back and setbacks at the fourth floor level, intentionally provided transition to the Neighbourhood lands to the immediate west. He asserted this design would also limit shadowing impacts.

29The Expert Witness asserted that the proposal would improve amenity features for the building by relocating two apartment units from the basement to the fourth floor, thereby opening up amenity space in the basement. He said accessibility features would be improved.

30Transition – Mr. Romano opined that, with its deliberate orientation of partial fourth floor massing toward the east, the design renders appropriate transition to the properties to the west, and minimizes adverse impact on the detached property immediately to the west, 10 Ridge Hill Drive. In the Expert Witness Statement (p.6) , he writes:

“The proposed fourth storey is lower in height than the permitted maximum building height. It also has setbacks, and step-back from the third storey, which are larger than what is anticipated in this location. The location and massing provide an appropriate and compatible transition between the areas of different development intensity and scale.”

31West Side Yard Setback – Mr. Romano gave evidence that the proposal calls for the development to be constructed within the footprint of the existing building. The existing west side yard setback of .69m is proposed to remain, while the zoning by-law calls for a setback of 7.5m on apartment buildings with height greater than 12m.

32Mr. Romano offered the opinion that the general intent and purpose of the zoning by-law is maintained with respect to the west side yard setback. The partial fourth floor addition, the only portion with height greater than 12m, is intentionally located to the east of the property. At the fourth floor level, this placement results in west side yard setbacks ranging from 8.21m to 10.07m. He makes the case that this design is intentional and sensitive, done to minimize impact on the detached property to the west.

33East Side Yard Setback – Mr. Romano opined that the proposed east side yard setback meets the general intent and purpose of the by-law. While the proposed fourth storey has an east side yard setback of only 3.1m to the east lot line, where 7.5m is required, the actual distance between the two apartment buildings is larger than 7.5 m. It measures approximately 12.2m. Thus, Mr. Romano opines, the proposal provides for an “appropriate interface and setback relationship” with 2100 Bathurst Street, the apartment building to the east.

34MINOR – The Expert Witness opined that, the three variances sought are minor, in terms of their massing impact. They do not give rise to unacceptable adverse impacts of a planning nature on the detached property to the west, 10 Ridge Hill Drive, or to other properties to the west.

35It was Mr. Romano’s expert opinion that the order of magnitude of the variances sought is consistent with those approved and occurring in the neighbourhood. To facilitate comparison, he made reference to the photographic and chart-summarized detail included in his Expert Witness Statement (p. 74). The chart summarized variance detail from 46 CoA approval decisions in the RD area over the last 14 years, relating to nearby properties on Ridge Hill Dr., Shallmar Blvd., Old Forest Hill Rd., Wembley Rd., and Hilltop Rd. The variance approvals were for additions, floor space index, side yard setbacks, depth, height and gross floor area.

36Approvals for side yard setbacks ranging upward from .29m and .71m were apparent.

37DESIRABLE – The Expert Witness offered his opinion that the proposal is desirable from several perspectives. He opined that it, “improved the existing older apartment building”; that it “made more efficient use of land and infrastructure in an area well served by transit and located within a major transit station area”.

38Furthermore, he asserted that the proposal “implements the Provincial and local planning policy framework in a reasonable, appropriate and sensitive manner”.

39I then heard from the Parties and Participants in opposition to the Application.

40The Tribunal, first, heard evidence from Allan Kaufman, (Party), who lives nearby on Ridge Hill Drive and identified himself aa a lawyer. The Tribunal next heard evidence from Carmit Finer-Toren, (Party), who lives at 10 Ridge Hill Drive, adjacent to the subject property. Then the Tribunal heard evidence from Vicki Sterling, (Participant). She is also a proximate neighbor, residing at a property three doors west on Ridge Hill Drive.

41“ABUSE OF PROCESS” ASSERTION – Evidence was given that the Appellant had “abused the process” by initiating proceedings at CoA, successively applying for additional variance approvals over the course of a number hearings. It was suggested that TLAB view the matter broadly, paying attention to its history, and not putting the variances sought in one “silo”, and the historical context by which the matter arrived at TLAB, into another.

42It was alleged that cumulatively the course of action taken by the Appellant amounted to abuse of process. It was described as “cute”, “sophisticated” and “tricky”. The assertion was made that, “it needed to stop”.

43SHADOW ISSUE - Party Finer-Toren explained that she is particularly sensitive to the negative effects of darkness during the long winter months. She gave evidence to the effect that any resulting increase in shadow on her property would be detrimental to her.

44“MISSING VARINCES” ASSERTION – It was suggested that variances might be missing from the application.

45FSI - PROPOSED BUILDING “TOO BIG FOR THE LOT” – Testimony was given that the size of the proposed building would be “too big for the lot”. The proposed four-storey building, which would be on the existing footprint, would be immediately to the east of the 10 Ridge Hill Dr. property, and built on the existing side yard setback of only .69 m. It was noted that the variances proposed ask for FSI of 1.66, a figure numerically much larger than the 1.00 FSI permitted.

46“FIVE–STOREY BUILDING” - The Tribunal heard testimony that, viewed from the perspective of the adjacent rear yard at 10 Ridge Hill Dr., the structure would appear to be a five-storey building, rather than a four-storey building, as proposed.

47MAJOR TRANSIT STATION AREA - The Tribunal heard testimony that the MTSA designation would not ultimately be of genuine relevance, because the Eglinton Crosstown LRT, “would likely never open”.

48PARKING INSUFFICIENCY ASSERTION – Testimony was heard, asserting that the proposal lacked sufficient onsite parking to serve ten units properly. Thus, some apartment dwellers, living in the ten units, would be led to park on the street, further aggravating existing parking scarcity there.

ISSUES AND ANALYSIS

49The questions before the Tribunal are these. Do the variances proposed meet the four tests of the Planning Act? Do they maintain the general intent and purpose of the Official Plan and the Zoning By-law, and are they Minor and Desirable?

OFFICIAL PLAN

50I find that Mr. Romano’s expert evidence and opinion proved to be considered and careful and remained largely un-contradicted.

51MASSING – I accept Mr. Romano’s expert opinion evidence that the proposal, with its deliberate orientation of partial fourth floor massing toward the east, provides an appropriate transition to the properties to the west. I agree that it minimizes adverse impact on the detached property immediately to the west, 10 Ridge Hill Drive, to the extent that a strict imposition of FSI is not required.

52PARKING – I agree with Mr. Romano’s evidence to the effect that five resident parking spaces and two visitor parking spaces represent sufficient numbers. Across Toronto it is apparent that many apartment dwellers neither own nor operate motor vehicles. Some apartment dwellers purposely select apartment buildings located close to public transit. The subject property is close to both the Bathurst Street TTC bus route and the future TTC Eglinton Crosstown LRT Station.

53MAJOR TRANSIT STATION AREA - I give little weight to the evidence given that the provisions of the MTSA designation merit little consideration, due to the possibility of the Eglinton Crosstown LRT’s, “likely never opening”. I found this to be speculative testimony. As a principle, I find that factual evidence should be more heavily weighted than speculative evidence. Although no opening date has been announced, regular daily work is continuing on the LRT project.

ZONING

54FSI – I agree that the 1.66 FSI proposed compares reasonably with that of the four-storey apartment building to its east, which has FSI in excess of 2.0. With respect to the FSI variance, I find that the general purpose and intent of the Zoning By-law is maintained.

55The order of magnitude of the FSI variance sought is consistent with those approved and occurring in the neighbourhood. I do not find unacceptable adverse impacts created on the neighbouring properties.

56WEST SIDE YARD SETBACK – I accept the Expert Witness’s opinion that the general intent and purpose of the zoning by-law is maintained. The partial fourth floor addition, the only portion with height greater than 12m, is intentionally located to the east of the property. On the west side, at the fourth floor level, this placement results in west side yard setbacks in the range of 8.21m to 10.07m. I agree that impact on the detached property to the west is thereby minimized.

57EAST SIDE YARD SETBACK – I accept the Expert Witness’s opinion that the variance maintains the general intent and purpose of the by-law. The reality of the 12.2m distance between the two apartment buildings does, I find, give rise to “an appropriate interface and setback relationship”. { Expert Witness Statement – p. 36 (b) }

58The subject property’s zoning permits apartment building residential development on the subject property, and permits a maximum height of 21m. With a proposed height of 14.74m at its highest point, the proposal seeks less height than 21 m. I find, therefore, that the proposed height is reasonable in the context, even taking into consideration the proposed west side yard setback of .69 m.

59I noted Mr. Romano’s observation that the proposal does not trigger a height variance. Initially, Party Kaufman asserted in his testimony that the three variances were triggered by the proposed height. Under later cross examination, however, he agreed that the 14.75m proposed height is “as of right”, since the zoning by-law allows maximum heights of 21m.

60VARIANCES – I did not find credible evidence to conclude that variances are missing from this proposal. Of note, at the outset, the three variances under appeal were not identified by a Zoning Waiver. Rather, they were identified by the stronger process of a Zoning Review conducted by a Zoning Examiner at Toronto Building.

MINOR

61When considering the test of “minor”, the Tribunal bases its evaluation on the degree of impact created on neighbouring properties, and specifically on unacceptable adverse impact, rather than on an arithmetic calculation. I agree with Mr. Romano that the three variances sought are minor, in terms of massing impact. They do not give rise to unacceptable adverse impact on the detached property to the west, 10 Ridge Hill Drive, or to other properties to the west.

62The order of magnitude of the variances sought is consistent with those approved and occurring in the area. I do not find unacceptable adverse impacts to be created on the neighbouring properties. I find that a strict imposition of FSI and side yard setbacks is not required.

DESIRABLE

63I accept the evidence of the Expert Witness to the effect that the proposal meets the test of being desirable for the appropriate development and use of the land.

64“ABUSE OF PROCESS” - I accept Mr. Romano’s evidence, refuting the allegation that the Appellant’s approach to CoA had amounted to “abuse of the process”. I find that new variance requests were not applied for each time the application received consideration by CoA. Consideration was given to the application on several occasions during 2022 and 2023, but this attention involved matters such as dealing with variance error made by the City, a deferral request, and procedural error with respect to the tallying of a CoA panel vote.

65For example, at one hearing Ms. Finer-Toren, a Party in the present appeal, sought and obtained a deferral. Typically, CoA deferrals are granted to allow consultation to take place between the applicant and the neighbours.

66Departing briefly from the subject of abuse of process, I find credible Mr. Romano’s evidence that subsequent to the CoA deferral, he did consult with Ms Finer-Toren. The consultation resulted in proposed improvements to such elements as the waste storage area and the landscaping.

67In my review of the evidence, I did not arrive at an abuse of process conclusion, preferring the evidence given by the Expert Witness, Mr. Romano.

68Further, persons do have a right to make applications to CoA. It is clear that persons also have a right to appeal CoA decisions to TLAB. During 2022 to 2024, the Appellant made two applications to CoA. These applications resulted in one approval by CoA and one refusal by CoA. In my finding, this level of application history is not unreasonable. Neither does it serve to undermine the integrity of the CoA process.

69SHADOW STUDY – I agree with Mr. Romano that there is no evidence of unacceptable shadow impact being created to the west arising in any season, by reason of the proposal. The shadow study informs the Tribunal that the shadow impact falls within small discrete areas on the property at 10 Ridge Hill Drive and moves off reasonably quickly. Only minimal, acceptable effects would result with respect to shadowing.

70I find the proposal to be for a four-storey building above established grade, not five. The grade of the subject lot, however, does steadily fall off to the north, dropping from at-grade on Ridge Hill Drive to lower land at the northern rear of the property. At the rear, the lay of the land thereby exposes the basement rear wall, made visible due to the topography, below the four storeys proposed above.

71PROVINCIAL MATTERS - I accept the Expert Witness’s conclusion that the proposal is consistent with, and not in conflict with, applicable provincial interest and policy statements.

CONCLUSION

72Clearly, the proposed apartment development calls for sensitivity to the transition between two areas with different Official Plan designations. The subject property, 8 Ridge Hill Drive, is located precisely at the place where an area designated Apartment Neighbourhoods abuts an area designated Neighbourhoods to its west. Upon examination, I find that the proposal does exhibit the desired sensitivity to the transitional nature of the site and the impacts this gives rise to.

73Therefore, I find that the three requested variances, individually and cumulatively, meet the four tests of the Planning Act.

DECISION AND ORDER

74The Tribunal ORDERS THAT the appeal is allowed and the following variances are approved, on the Condition set forth below. The decision of the Committee of Adjustment, dated May 23, 2024 is set aside.

1. Chapter 10.10.40.40.(1)(A), By-law 569-2013

The permitted maximum floor space index is 1.00 times the area of the lot. The proposed floor space index is 1.66 times the area of the lot.

2. Chapter 10.10.40.70.(3(C)(ii), By-law 569-2013

The required minimum side yard setback for an apartment building is 7.5m with a height more than 12m.

The proposed west side yard setback is 0.69m.

3. Chapter 10.10.40.70.(3(C)(ii), By-law 569-2013

The required minimum side yard setback for an apartment building is 7.5m with a height more than 12m.

The proposed east side yard setback is 3.1m.

75The CONDITION is as follows:

1. That construction shall be in substantial conformity with the plans and elevations issued by the architect for CoA on March 03, 2024, specifically: A1, Site Plan; A10, South Elevation; A11, West Elevation; A12, East Elevation; and A13, North Elevation.

B. Mullock

Panel Member