Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-10-30
24 155346 S45 12 TLAB
Options Architects Inc (Re), 2024 ONTLAB 274
DECISION AND ORDER
Issuance Date:
October 30, 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):
FOREST RANGE DEVELOPMENTS INC
Applicant(s):
OPTIONS ARCHITECTS INC
Property Address:
39B BURTON RD
COA File No.:
23 161949 STE 12 MV (A0554/23TEY)
TLAB Case File No.:
24 155346 S45 12 TLAB
Hearing Date(s):
September 16, 2024
Deadline Date for Closing Submissions/Undertakings:
N/A
Decision Delivered By:
TLAB Panel Member B. Gallaugher
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
FOREST RANGE DEVELOPMENTS
OPTIONS ARCHITECTS INC
Appellant’s Legal Rep.
OPTIONS ARCHITECTS INC
Party
J. D. ALTMAN
A. STEWART
Party
B. A. BLUMENTHAL
A. STEWART
INTRODUCTION AND CONTEXT
1This appeal is from a decision of the Committee of Adjustment, issued May 14, 2024, to refuse an application for eight variances that would permit the construction of one of two new detached houses on a portion of the property at 39 Burton Road (subject property). This application is for “39B” Burton Road, which was proposed for the western portion of the existing lot.
2On the same date, the Committee of Adjustment also refused variances for another detached house to be built on the eastern portion of the same property. That application was given the address of “39A” Burton Road. The Committee’s file number for that application is A0551/23TEY.
3The refusal of the variances for 39A Burton Road was also appealed to the Toronto Local Appeal Body (TLAB). The TLAB file number for 39A is 24 155270 S45 12 TLAB.
4It would have been appropriate to hear both 39A and 39B appeals at the same Hearing as the Parties and issues were the same for both appeals, although the list of variances for 39A Burton was somewhat different. Due to an administrative error at the TLAB, only the appeal relating to 39B Burton was scheduled for a Hearing. It was held on September 16, 2024 and this decision is the result of that hearing. Consequently, this decision is applicable only to 39B Burton Road.
5The Hearing of the appeal for 39A Burton Road has been scheduled for October 31, 2024.
6The subject property is currently occupied by a single storey detached house. It would have to be demolished to allow construction of the two new houses, if approval is granted.
7Of interest is the fact that the Appellant proposes to build two new houses fronting on Burton Road to replace one existing house. However, no application for consent to sever the subject property to create the new lots for these new houses has been submitted.
PARTIES AND APPEARANCES
8The Appellant, Forest Range Developments, did not attend the Hearing nor were they represented by counsel. The Appellant did not provide the TLAB with any notice that they did not intend to appear nor any information to explain their absence prior to or at the beginning of the Hearing.
9The other Parties, who did appear, were Ms. J.D. Altman, who resides at 37 Burton Road and Mr. B.A. Blumenthal, who resides at 2 Ridgewood Road. Both of these properties abut 39 Douglas Drive. Both were represented by solicitor. Amber Stewart (Amber Stewart Law) and submitted Witness Statements by the requisite due date in the Notice of Hearing (Form 2).
10The Parties retained Ms. Stephanie Matveeva of Glen Schnarr & Associates Inc. as an expert witness. Ms. Matveeva was also in attendance and had submitted a Witness Statement.
11At the beginning of the Hearing, Ms. Stewart requested that the appeal be dismissed as the Appellant was not represented and could therefore not offer any evidence in support of his appeal. In addition, she noted that the Appellant had not submitted a Witness Statement. She noted that the onus is on the applicant to prove that the requested variances meet the four tests in s. 45(1) of the Planning Act.
12Ms. Stewart was also concerned that the Hearing had only been scheduled to consider the application for 39B Burton Road, as she and her clients expected both 39A and 39B would be considered together.
13After considering Ms. Stewart’s request, I decided that I would prefer to hear the evidence of Ms. Stewart’s witness and her two clients regarding 39B Burton Road. I made this decision because the Appellant had provided some rudimentary arguments in support of his appeal in their Notice of Appeal (Form 1) dated May 21, 2024. Although no weight can be attached to this document, I felt it would be appropriate to hear the evidence of those opposed to the appeal out of an abundance of caution.
14I also advised the Parties that since notice of the hearing had only been given for the 39B application, the Hearing would focus on that appeal only.
VARIANCES UNDER APPEAL
15The variances requested are as follows:
- Chapter 10.5.40.50.(2), By-law 569-2013
A platform without main walls, attached to or within 0.3 m of a building, must
comply with the required minimum building setbacks (1.8 m).
In this case, the rear ground floor decks will be located 1.2 m from the side (east)
lot line and 1.75 m form the side (west) lot line.
- Chapter 10.5.40.50.(4)(C), By-law 569-2013
The level of the floor of a platform, such as a deck or balcony located at or below
the level of the first storey of a residential building other than an apartment
building, may be no higher than 1.2 m above the ground at any point below the
platform, except where the platform is attached to or within 0.3 m of a rear main
wall.
In this case, the rear ground floor deck will be located 2.35 m above the ground
below the platform.
- Chapter 10.20.30.20(1)(A), By-law 569-2013
The minimum required lot frontage is 18 m.
In this case, the lot frontage is 15.36 m.
- Chapter 10.20.40.10.(2)(B)(i), By-law 569-2013
The maximum permitted height of all front exterior main walls and all rear exterior
main walls is 9.5 m.
The height of all front exterior main walls will be 10.65 m, and the height of all
rear exterior main walls will be 10.65 m.
- Chapter 10.20.40.20.(1), By-law 569-2013
The maximum permitted building length is 17 m.
The new dwelling will have a length of 29.33 m.
- Chapter 10.20.40.30.(1), By-law 569-2013
The maximum permitted building depth is 19 m.
The new dwelling will have a depth of 32.4 m.
- Chapter 10.20.40.40.(1)(A), By-law 569-2013
The maximum permitted floor space index is 0.5 times the area of the lot
(425.84 m²).
The new dwelling will have a floor space index equal to 0.7 times the area of the
lot (596.04 m²).
- Chapter 10.20.40.70.(3)(E), By-law 569-2013
The minimum required side yard setback is 1.8 m.
The new dwelling will be located 1.2 m from the side (east) lot line and 1.75 m
from the side (west) lot line.
16These variances, if granted would result in a house with a greater bulk than that permitted by the Zoning By-law. It would also be situated on a lot with less frontage than the standard and be closer to its neighbours than permitted.
THE LEGISLATIVE AND POLICY FRAMEWORK
17Provincial Interest - S. 2
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
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)
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
20Given that the Appellant did not appear, no evidence was introduced in support of the appeal.
21The information provided in the Notice of Appeal form mentioned above consisted of the Appellant’s contention that the requested variances do meet the four tests because the proposed development is compatible with the pattern of development in the neighbourhood.
22The Notice of Appeal provided some rudimentary maps and information regarding Floor Space Index (FSI) and building length of some other properties in the neighbourhood. In the Form 1, the Appellant also suggested that there had been some changes in the application at the Committee of Adjustment stage in response to concerns expressed by the neighbours.
23Again, I have assigned no weight to these statements as the appellant did not appear at the hearing.
24In her opening statement, Ms. Stewart asserted that there will be significant negative impacts on her clients’ properties if the development is approved. She attributed this to the length and height of the proposed dwelling.
25She also noted that the impacts on her clients are exacerbated by the significant grade change between the street and the rear yards of the properties. The land dips down at the rear, exposing some of the basement structure. In particular, Mr. Blumenthal’s property is well below the 39 Burton site, which it abuts at the rear.
26In addition, she indicated that Ms. Altman’s property, which abuts the site to the east, is irregularly shaped. (39A Burton Road would be located between Ms. Altman’s property and 39B). Her outdoor amenity space is confined to the west side of the property because of its configuration. As a result, the impact of the proposed building would have a greater effect.
EXHIBITS
27Ms. Steward introduced Mr. Blumenthal’s Witness Statement, Ms. Altman’s Witness Statement, Ms. Matveeva’s Witness Statement, and her Document Book, which I marked as Exhibits 1, 2, 3, and 4, respectively.
EXPERT WITNESS TESTIMONY
28Ms. Stephanie Matveeva, a Registered Professional Planner (RPP) in the employ of Glen Schnarr & Associates Inc., was called by Ms. Stewart to provide expert testimony.
29Ms. Matveeva was affirmed and qualified to provide expert testimony.
30Ms. Matveeva indicated that she had visited the property, reviewed all the relevant documentation and planning policies.
31She indicated that the property was designated “Neighbourhood” in the City of Toronto Official Plan. Neighbourhoods are areas where limited growth is permitted but such growth must reinforce the prevailing character of the area.
32She defined a Neighbourhood Study Area (NSA) composed of 43 properties on the south side of Burton Road. This area was chosen as it displays consistent lot configurations. The north side of the street is subject to a different zoning category. The NSA is used to determine whether the proposed building is in keeping with and would reinforce the existing character of the area.
33She indicated that the proposed house would “read” as a full 3-storey house from Burton Road and a 4-storey house at the rear due to the grade changes. Some other houses in the NSA also have 3 storeys but the top storey is slanted with dormers, whereas the proposed house is configured like a box with a flat roof, giving it a larger bulk.
34On the subject of lot frontages, she reported that only 5 of the 43 lots in the NSA had lot frontages less than that proposed.
35She also found that only three houses had a greater building depth that the proposal.
36Ms. Matveeva was of the opinion that the proposed building that would be permitted by the variances did not meet any of the four tests laid out by Section 45 of the Planning Act.
37She said the proposed built form did not provide any mitigating factors that would reduce the negative impacts of the building on its neighbours and the surrounding area.
38She felt that the proposed building was not in keeping with the prevailing patterns in the neighbourhood with regard to frontage, side yards, building depth, density (FSI/GFA), and street wall height. Therefore it does not maintain the general spirit and purpose of the Official Plan (particularly Policies 3.1.3.5 and 4.1.5) and the Zoning Bylaw.
39She felt that the cumulative impacts of the density, scale and massing would create sufficient shadowing, overlook and privacy impacts on its neighbours that the proposal was neither minor nor appropriate for the development of the lot.
40Ms. Matveeva also referenced a written report from Mr. Cameron Williamson, a professional planner with the City of Toronto Planning Division. Mr. Williamson had advised the Committee of Adjustment that, in his opinion, the proposed development was “not reflective of the prevailing physical character of the neighbourhood”. Mr. Williamson did not appear at the appeal hearing.
41She recommended that the appeal be dismissed.
OTHER PARTIES’ TESTIMONY
42Ms. Stewart then called Mr. Blumenthal as a witness. He was affirmed. Mr. Blumenthal is a neighbour of 39 Burton Road who abuts the subject property to the rear. He and his family have lived on his property for 27 years.
43Mr. Blumenthal considers the proposed building to be a “dramatic” invasion of privacy due to overlook, which is significantly exacerbated by the grade change between the front of the Burton Road property and his backyard. He conservatively estimates this to be 16 feet (5 meters).
44He recounted that he had met with the appellant during the Committee of Adjustment process in an attempt to find a compromise development scheme for 39 Burton. He found the consultation disappointing and the proposed revisions resulting from it to be insignificant.
45He asked for the appeal to be dismissed.
46Ms. Stewart then call Ms. Altman to give her evidence. She was affirmed.
47Ms. Altman lives at 37 Burton Road, which abuts the 39 Burton Road property to the east. The proposed building at 39A Burton Road would be between 39B Burton and her property so she is not directly abutting the subject of this hearing but her property is close.
48Ms. Altman is also a long-term resident of the area and said she cares about the community.
49Her backyard amenity area is very important to her and her family, especially since her husband is disabled and the ability to enjoy this area is critical.
50She feels that the proposed building would create undue negative overlook and privacy impacts on her ability to enjoy her property because of its excessive size and massing. She noted that the existing 836 m2 house would be replaced by two (39A and 39B) 836 m2 houses.
51Drainage may also be a problem due to the significant grades in the area.
52She asked that the appeal be dismissed.
53Ms. Stewart concluded by stating that the onus of proving the requested variances meet the four tests in the Planning Act is on the appellant and that since. the Appellant has provided no evidence, the TLAB should dismiss the application.
ISSUES AND ANALYSIS
54Section 3.1.3.5 of the City of Toronto Official Plan states “Development will be located and massed to fit within the existing and planned context, define and frame the edges of the public realm with good street proportion, fit with the character, and ensure access to direct sunlight and daylight on the public realm by:
a) providing streetwall heights and setbacks that fit harmoniously with the existing and/or planned context; and
b) stepping back building mass and reducing building footprints above the streetwall height.”
55Section 4.1.5 of the Official Plan states “Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:
a) patterns of streets, blocks and lanes, parks and public building sites;
b) prevailing size and configuration of lots;
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;
d) prevailing building type(s);
e) prevailing location, design and elevations relative to the grade of driveways and garages;
f) prevailing setbacks of buildings from the street or streets;
g) prevailing patterns of rear and side yard setbacks and landscaped open space.”
56I agree with Ms. Mateeva that the proposed variances would permit a building that does not meet the general spirit and purpose of the Official Plan, especially Section 3.1.3.5 and Section 4.1.5 (b), (c) and (g). It is also not in conformity with the general intent and purpose of the Zoning By-law.
57I agree with Ms. Mateeva, Ms. Altman and Mr. Blumenthal that the proposal represents an overdevelopment of the lot that would impose undue negative impacts on its immediate neighbours. It is therefore not minor and not appropriate for the development of the land.
CONCLUSION
58As no evidence was produced in support of the requested variances and the evidence in opposition clearly demonstrates that the variances do not satisfy any of the four Planning Act tests, the appeal is dismissed.
DECISION AND ORDER
59The appeal is dismissed. The decision of the Committee of Adjustment, dated May 14, 2024, is confirmed.
B. Gallaugher
Panel Member