Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
23 231161 S53 03 TLAB 23 231164 S45 03 TLAB 23 231163 S45 03 TLAB
Barida (Re), 2024 ONTLAB 283
DECISION AND ORDER
Issuance Date: November 26, 2024
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): M. BARIDA
Applicant(s): R. DEFINA
Property Address: 15 RAMSGATE RD
COA File No.: 23 129015 WET 03 CO (B0011/23EYK) 23 129025 WET 03 MV (A0171/23EYK) 23 129026 WET 03 MV (A0170/23EYK)
TLAB Case File No.: 23 231161 S53 03 TLAB 23 231164 S45 03 TLAB 23 231163 S45 03 TLAB
Hearing Date(s): August 15, 2024, August 21, 2024 & October 7, 2024
Deadline Date for Closing Submissions/Undertakings: October 16, 2024
Decision Delivered By: TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
R. DEFINA
Appellant
M. BARIDA
A. BOUCHELEV
Party
LONG BRANCH NEIGHBOURHOOD ASSOCIATION (LBNA)
J. GIBSON
Party
R. ZALOZNIK
Participant
M. MCCOLL
Participant
D. ORSER
Participant
S. WILLSHER
Participant
C. MERCADO
Participant
G. GIBSON
Participant
L. GERRIE
Participant
B. BAILEY
Witness
C. MERCADO
Expert Witness
T. GLOVER
Expert Witness
V. COLANTONIO
Expert Witness
S. JORGE
Expert Witness
E. DIOMIS (DIOMIS ENGINEERING INC)
Expert Witness
A. CHOI
Witness
M. DIDA
INTRODUCTION AND CONTEXT
1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application to sever a lot, and for variances for the resulting two lots.
2The subject property is known as 15 Ramsgate Rd. The subject property is located in the Long Branch neighbourhood of the former City of Etobicoke.
3It is designated Neighbourhoods in the City Official Plan (OP) and zoned RD (f12.0; a370; d0.35) under Zoning By-law 569-2013.
4THE CONSENT REQUESTED:
To obtain consent to sever the property into two residential lots.
Conveyed - Part 1
The lot frontage will be 7.5m and the lot area will be 289.95m². The existing dwelling will be demolished and the property will be redeveloped as the site of a new detached dwelling with an attached garage, requiring variances to the Zoning By-law.
Retained - Part 2
The lot frontage will be 7.5m and the lot area will be 289.95m². The existing dwelling will be demolished and the property will be redeveloped as the site of a new detached dwelling with an attached garage, requiring variances to the Zoning By-law.
REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:
5The list of variances considered in this Toronto Local Appeal Body (TLAB) proceeding has been changed from those considered by the COA. On advice from the Applicant’s Expert Witness that the zoning notices received from the City are not reflective of the ‘actual’ variances required for the proposed development, Mr. Glover’s revised list of variances was accepted as the newly requested variances for this application. Any omissions or deficiencies in the requested variances are the responsibility of the Applicant.
6For both Parts 1 and 2:
- Section 10.20.30.20.(1)(A), By-law 569-2013
The minimum required lot frontage is 12 m.
The lot frontage will be 7.6 m.
- Section 10.20.30.10.(1)(A), By-law 569-2013
The minimum required lot area is 370 m².
The lot area will be 289.95 m².
- Section 10.20.40.40.(1)(A), By-law 569-2013
The maximum permitted floor space index (FSI) is 0.35 times the area of the lot (101.48 m²).
The proposed dwelling will have a floor space index of 0.66 times the area of the lot (190.6 m²).
- Section 10.40.40.70.(3)(A), By-law 569-2013
The minimum required side yard setback is 1.2 m.
For Part 1: The proposed dwelling will be located 0.6 m from the west side lot line and 0.9 m from the east side lot line.
For Part 2: The proposed dwelling will be located 0.6 m from the east side lot line and 0.9 m from the west side lot line.
- Section 10.20.40.20.(1), By-law 569-2013
The maximum permitted building length is 17 m.
The proposed dwelling will have a length of 17.5 m.
- Section 10.20.40.10.(2)(A), By-law 569-2013
The maximum permitted exterior main wall height is 7 m.
The proposed dwelling will have an exterior main wall height of 7.27 m.
- Section 10.5.40.60.(7), By-law 569-2013
Roof eaves may encroach into a required minimum setback up to a maximum of 0.9 m provided that they are no closer than 0.3 m to a lot line.
The proposed roof eaves will encroach into the required side yard setback by 0.9 m and will be located 0.2 m from the west side lot line.
- Section 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 setbacks for the zone; 1.2 m.
For Part 1: The proposed front platform will be located 0.6 m from the west side lot line. The proposed rear platform will be located 0.9 m from the east side lot line and 0.61 m from the west side lot line.
For Part 2: The proposed front platform will be located 0.6 m from the east side lot line. The proposed rear platform will be located 0.9 m from the west side lot line and 0.61 m from the east side lot line.
- Section 10.20.40.50.(1)(B), By-law 569-2013
The maximum permitted area of each platform at or above the second storey is 4 m².
The proposed platform at or above the second storey will have an area of 5.83 m².
- Section 10.20.40.30.(1)
The permitted maximum building depth for a detached house is 19.0m.
The proposed building depth is 19.47m
7I was required to make a number of rulings through the course of the Hearing, some of which will be noted as relevant to my consideration of the evidence in the analysis below.
8This matter was subject to three Interim Decisions prior to the commencement of the Hearing, to: allow an adjournment, admit an Expert Witness Statement on behalf of the LBNA, and admit supplementary evidence on behalf of the Applicant.
9The Interim Decision of August 12, 2024 permitted the Applicant to supplement their evidence, one part of which contained revised plans. The LBNA objected to the admission of these plans as the Interim Decision had been issued only a few days before the Hearing commenced.
10The revised design was intended to be helpful to the issue of tree damage and the revisions did not result in any change to the requested variances. I therefore accepted the revised design as an amended proposal with the assurance that the LBNA would be granted the time they needed to analyze the changes that had been made.
11I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation of the hearing of their evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
12Provincial 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.
13Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2020 Provincial Policy Statement (‘PPS’) which was in effect at the time these applications were made and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’).
14Consent – S. 53
TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,
(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2 of the Planning Act;
(b) whether the proposed subdivision is premature or in the public interest;
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;
(d) the suitability of the land for the purposes for which it is to be subdivided;
(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;
(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;
(f) the dimensions and shapes of the proposed lots;
(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;
(h) conservation of natural resources and flood control;
(i) the adequacy of utilities and municipal services;
(j) the adequacy of school sites;
(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;
(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and
(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).
15Variance – 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
16The hearing of evidence in this matter consumed three full days and entailed over two thousand pages of submissions.
17A summary of evidence is presented here for the purpose of providing some context for the following sections of this Decision. All of the evidence and testimony in this matter has been carefully reviewed and the omission of any part of the evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined in the Issues and Analysis section below.
18Three Witnesses gave evidence with respect to trees. Ms. Choi was qualified as an expert in arboriculture and gave evidence in support of the application. Ms. Jorge was qualified as an expert in urban forests and conservation and supported the objection of the LBNA. Dr. Max Dida, Supervisor Tree Protection and Plan Review West District, appeared under summons respecting the City’s consideration of the trees associated with this application.
19A combined Expert Witness Statement was prepared by T. Glover and V. Colantonio in support of the application. I was not able to qualify Ms. Colantonio as an Expert although I was prepared to hear her evidence as a Witness without qualification as an Expert. Mr. Bouchelev instead elected to have Mr. Glover, whom I qualified as an expert in land use planning, present all of the applicant’s planning evidence at the Hearing.
20Ms. Mercado, who is the Chair of the LBNA, was the LBNA’s Witness at the Hearing. She was not qualified as an expert.
21Mr. Diomis had been included on the Witness list as he was the drafter of the revised plans which had been admitted through the Interim Decision of August 12, 2024. An actual Witness Statement by Mr. Diomis was however not included in the submissions of the Applicant. The LBNA objected to Mr. Diomis being allowed to give oral evidence on the basis that they had no notice of the content of his testimony in the absence of a Statement.
22Mr. Bouchelev explained that he had intended that Mr. Diomis be qualified so that he would be able to answer any questions about the engineering aspects of the revised proposal, which involved a cantilevered design, amongst other amendments.
23I agreed that Mr. Diomis could be called to the stand, if needed, to answer questions about the engineering aspects of the revised design and other details of the plans, but the land use planning justification of the application would be the purview of Mr. Glover.
24Mr. Zaloznik, a Party to this matter, is a next-door neighbour of the subject property. He was concerned primarily about the impacts of the development on his property, including the blocking of daylight and sunlight, and the impacts of a reduced side yard on their mutual boundary trees, as well as drainage problems.
25Ms. McColl was a Participant in this matter. She lives in a smaller house next door to 5A and 5B Ramsgate Rd, (houses similar to what is proposed by the Applicant). She shared the various impacts of a high-FSI house next door, including the long blank brick wall generating heat, the extra noise and activity that is apparent once the trees on the lot were cut down as well as the flow of water onto her property. She was very concerned that the permission to build 5A and 5B has precipitated a “domino effect” in that it has been used to argue for more like it.
26Ms. Gerrie was a Participant in this matter. Her rear yard abuts the rear yard of the subject property. She is concerned about the loss of old growth trees, including a shared boundary tree. Her opinion is that these large houses on small lots leave no room for trees and that to allow them would change the character of the neighbourhood.
27Mr. Bailey was a Participant in this matter. His opinion is that to allow another similar build on the street would shift the character of the street. He observed that the Applicant is using such a small sample (14 houses) to skew the picture of the character dangerously. In his opinion, the character of the neighbourhood (and Ramsgate Rd) is generous setbacks and abundant open space. His biggest issue is the FSI and the dramatic ratio of built form to open space.
ISSUES AND ANALYSIS
28In my opening introduction at the commencement of the Hearing, I reiterated to those present that a hearing before the TLAB is a hearing “de novo”, meaning that the entire application is being considered anew. The burden therefore rests on the Applicant to prove their case. The Applicant must satisfy the TLAB that the application meets all the tests mandated by the legislation.
29The strength of the evidence and arguments in opposition to the application can serve to diminish confidence in the justification of the application. It is not, however, sufficient for the Applicant to refute the criticism of the opposing Parties and Participants. The Applicant must first and foremost provide sufficient evidentiary foundation for the TLAB to be satisfied that the tests have been met.
30In their closing statement, the LBNA identified a number of key reasons why the application should be refused. The first key reason was that the Applicant did not provide evidence prior to, or during, the Hearing to prove their case. Specifically, that the Applicant did not meet the four tests for a minor variance nor the criteria for approval of a consent to sever.
PLANNING EVIDENCE IN SUPPORT OF THE APPLICATION
Planning Expert Witness Statement(s)
31Mr. Glover’s Expert Witness Statement, which was submitted as a joint document with Ms. Colantonio, was contained in a compendium document identified as the Evidence Book of the Applicant.
32Mr. Glover’s Expert Witness Statement addressed the four tests to approve variances, as mandated by s.45(1) of the Planning Act, at a high level. The Expert Witness Statement commented on each of the individual variances with a sentence or two. Three paragraphs in the Expert Witness Statement were devoted to the Official Plan.
33The content of the Glover/ Colantonio Responding Witness Statement was confined to a criticism of Ms. Mercado’s analysis of her data. (The Applicant had not obtained their own statistical data, had not independently identified a study area, nor had they analyzed of the character of the broader neighbourhood as is directed by the Official Plan).
34The Evidence Book of the Applicant (Exhibit 1) contained extracts from the Planning Act, the Provincial Policy Statement and the Growth Plan. There was no analysis in the submitted Glover/ Colantonio Expert Witness Statements of the requirements of these policies nor any comment on the application’s compatibility with those policies. There was, as noted above, some opinion provided on how the application addresses requirements of the City of Toronto Official Plan and the Zoning By-law.
35Notably, the submissions in the Applicant’s Expert’s Witness Statements did not include a consideration of s.51(24) of the Planning Act which sets out the criteria for approval of a plan of subdivision or a consent to sever.
Planning Testimony Glover
36In his testimony during his evidence in chief, Mr. Glover identified the various sections of the Planning Act that are relevant to this application and noted on the stand the criteria for dividing land set out in s.51(24). He opined that the application meets those tests as well, but did not provide further commentary.
37Mr. Glover spent some time in his testimony cataloguing the various policies of the Official Plan and provided some commentary on the requirements of the policies and sometimes the features of the application, or a detail of the context, as well as some opinion evidence.
38The delivery of Mr. Glover’s evidence in this somewhat extemporaneous way created difficulties for both the other Parties and for the TLAB. It was challenging to capture Mr. Glover’s comments in the moment and then to connect the disparate comments to relevant considerations in the legislation1.
39In particular, Mr. Glover’s recitation of numbers and percentages was difficult to capture and understand since they had not been included in his Expert Witness Statement. This challenge was compounded by Mr. Glover’s correction and re-correction, sometimes multiple times, of the numbers quoted.
40Most of the insights, commentary and opinions about the Official Plan policies and statistics that were articulated by Mr. Glover on the stand had not previously been shared with the other Parties and the TLAB.
41Rule 16.13 of the TLAB Rules of Practice and Procedure sets out the requirements for the contents of an Expert Witness Statement. Rule 16.13 e) requires that the Expert Witness Statement include the expert’s reasons for his or her opinion, including a description of the factual assumptions, research and any Documents relied upon by the expert in forming his or her opinion.
42The purpose of this requirement of the Rule 16.13 e) is to provide a clear statement of the evidence that the Witness will rely on and to ensure that everyone who participates in an appeal matter is made aware of the issues in dispute well before the Hearing. The other Parties in this matter could not have anticipated Mr. Glover’s interpretation of each of the Official Plan policies or his opinion of the application in relation to them. They would not have been advised of his opinion regarding the criteria for the consideration of land division (s. 51(24)).
43The requirement for a full and detailed Expert Witness Statement is intended to provide an opportunity for other Parties to prepare for the Hearing, respond to the evidence and arguments in their own Responding Witness Statements and, fundamentally, to avoid putting any Party in a position where they must respond, surprised and unprepared, in the moment. The LBNA’s objection to the way in which the Expert testimony of Mr. Glover was entered is well founded.
44For the presiding Member, a comprehensive Expert Witness Statement provides clear and definite grounding for the application and allows the Member to identify, in advance, questions and clarifications that they might need. It is not necessary for oral evidence to follow word for word the text of a Witness Statement, but it is not appropriate, or procedurally sound, for a Witness on the stand to introduce whole new lines of argument, analyses, or facts that were not previously disclosed.
45I shall note one last concern with the nature of Mr. Glover’s testimony. He attempted to enter into evidence facts in his oral testimony that were derived from the work of others, in which he had no involvement, and over which he had no oversight.
46I allowed Mr. Glover latitude to address the contents of Ms. Mercado’s Witness Statement on the basis that is within his scope to respond to the opposing Parties’ evidence.
47It was, however, necessary for me to remind Mr. Glover and Mr. Bouchelev repeatedly, in different ways, that they were not permitted to lead the LBNA’s evidence as if it were their own and then interpret it to introduce facts and opinions that they had not disclosed in their own submissions. I allowed Mr. Glover latitude to respond to the LBNA’s evidence, as is appropriate, but Mr. Glover and Mr. Bouchelev persisted in the approach that they had adopted of co-opting the data and analysis of the opposition to fill in the gaps in their own case, despite my repeated warnings.
48In addition to his reliance on the exhibits of the LBNA, Mr. Glover referenced the planning report of Mr. Defina, a previous agent of the owner, and attempted to establish facts regarding the frequency of certain categories of lot frontage etc. on the basis of Mr. Defina’s report. When asked, Mr. Glover did not know the qualifications of Mr. Defina nor how the data was collected and analysis undertaken.
49Mr. Glover was qualified as an Expert in Land Use Planning. A qualified expert’s opinion may carry a greater weight in an adjudication on the premise that they have a professional understanding of the concepts, data and analysis that is helpful to the tribunal.
50In this case, Mr. Glover did not source his own data describing the characteristics of the neighbourhood. In his Responding Witness Statement to Ms. Mercado’s Witness Statement, he corrected her count of the total number of properties in the broader neighbourhood and her categorization of the property frontages, and yet at the Hearing he relied on depiction of her analysis to build his own argument in support of the application.
51Mr. Glover had no knowledge of Mr. Defina’s qualifications or methods but relied on his report to establish basic facts such as the number of lots on Ramsgate Rd that have frontages at, or less, than what is being requested in this proposal. (He corrected and then re-corrected his statement of this number and of the percentage in his testimony).
52I will note as an aside that Ms. Mercado, in her testimony, indicated that the LBNA had taken the property data that they had obtained from the City of Toronto and had “tried to fill the holes with what they can”. She mentioned supplementing the data with Municipal Property Assessment Data (MPAC) information. In response to my question, Ms. Mercado did not think that there was a compatibility issue in merging two data sets that had been collected for different purposes and with different methodologies.
53Ms. Mercado is to be commended for her efforts in putting together the best statistical information before me. The diligence and efforts of the LBNA in constructing a reasoned and supported case are admirable. However, I hold some concern that a blending of more than one data source has potentially created an inconsistency in the data; for example, in how gross floor area has been identified for the purposes of calculating floor space index.
54I would have relied on Mr. Glover’s testimony as a qualified expert for a statistical analysis of the characteristics of the neighbourhood had he prepared and submitted the analysis to support his opinion himself. I would have relied on his expertise to understand the limitations of the City’s data, its currency, parameters, definitions etc. and therefore the level of confidence that could be ascribed to conclusions based on that data.
55As it is, since Mr. Glover prepared none of the analysis that he relied on for characterizing the planning context, I have limited confidence that he has built into his final opinion an understanding of the limitations of the data set, or the potential pitfalls of the analyses and depictions (of the LBNA and Mr. Defina) upon which he relied.
CONSENT TO SEVER
56I am satisfied that a plan of subdivision is not required pursuant to s. 53(1) of the Planning Act as the proposal is a division of the existing legal lot in a long-established area. No adaptation or construction of public infrastructure is required.
57For the TLAB to grant a consent to sever land, it must have considered the criteria set out in s.51(24) of the Planning Act. (These criteria are listed in THE LEGISLATIVE AND POLICY FRAMEWORK section above). The Applicant’s evidence did not address these criteria.
58Perhaps the Applicant’s representatives presume that a justification that the proposal fulfils the requirements of the Official Plan is sufficient to cover off all of the criteria in s.51(24). It is not.
59One of the primary criteria relevant to the consideration of a consent to sever is criterion f) the dimensions and shapes of the proposed lots.
60While Mr. Glover provided testimony regarding lot frontage and lot area, this information was not consolidated into a coherent justification that criteria in s.51(24) had been considered and found to have been met. It is not for the adjudicator to piece together, out of general descriptive testimony, a potential framework of evidence that the criteria have been considered.
61In his Expert Witness Statement and in his testimony, Mr. Glover noted that City staff had agreed that the application was consistent with s.51(24) but that they did not support approval of the variances.
62In its decision, the COA did not grant the requested consent, leading to this appeal and the ‘de novo’ consideration of the application. For the consent Appeal to be allowed, the TLAB must be satisfied that the application meets all of the legislated requirements, including the criteria listed in s.51(24). I do not find that I have been provided with the evidence to conclude that this test has been met.
THE OFFICIAL PLAN
DEVELOPMENT CRITERIA
63In his Expert Witness Statement and in his testimony, Mr. Glover addressed both Official Plan Policies 4.1.5 and 4.1.9.
64OP Policy 4.1.9 establishes a different set of development criteria than OP Policy 4.1.5, specifically to address development on “infill” properties. It was Mr. Glover’s opinion that the proposed development constitutes infill in the context of the Official Plan. I do not concur.
65The preamble to Section 4.1 of the Official Plan includes the following text:
Scattered throughout many Neighbourhoods are properties that differ from the prevailing patterns of lot size, configuration and orientation. Typically, these lots are sites of former non-residential uses such as an industry, institution, retail stores, a utility corridor, or are lots that were passed over in the first wave of urbanization. In converting these sites to residential uses, there is a genuine opportunity to add to the quality of Neighbourhood life by filling in the “gaps” and extending streets and paths. Due to the site configuration and orientation, it is often not possible or desirable to provide the same site standards and pattern of development in these infill projects as in the surrounding Neighbourhood. Special infill criteria are provided for dealing with the integration of new development for these sites, and for intensification on existing apartment sites in Neighbourhoods.
66I do not find that the consent to sever proposal qualifies as infill development. It is a straightforward proposal to divide an existing residential lot and does not fit the intent of the Official Plan to allow flexibility in the development of previously non-residential sites.
67It is the development criteria set out in OP Policy 4.1.5 that must be met.
OFFICIAL PLAN POLICY 4.1.5
68OP Policy 4.1.5 provides direction for assessing the “fit” of development within a Neighbourhood. The policy contains within it development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.
4.1.5 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;
h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and
i) conservation of heritage buildings, structures and landscapes.
Broader Study Area vs Immediate Context
69Mr. Glover’s Expert Witness Statement contains the following advice:
“It is my opinion that the proposed development is in character with the existing neighbourhood in terms of the immediate and broader context. The City of Toronto Official Plan outlines that the ‘geographic neighbourhood’ of a proposed development will be delineated by both the entire geographic area (broader context) and the properties that front the same street as the subject property in the same block and the block opposite (immediate context), and in instances of significant difference between these two contexts, the immediate context will be
considered to be of greater relevance”
70Mr. Glover based his opinion that the proposal maintains the general intent and purpose of the Official Plan on a consideration of the immediate context only. He did not address the broader neighbourhood in his analysis because he stated that the Official Plan considers that the immediate context is more important.
71It is essential to understand the stated intent of the policy. The fundamental premise of the policy is that “Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood.” (my emphasis).
72OP Policy 4.1.5 directs that a geographic neighbourhood be delineated according to listed considerations such as zoning, lot size and configuration and street patterns.
73Mr. Glover did not identify the parameters of the geographic neighbourhood in accordance with the direction of the Policy. He, instead, at the Hearing, resorted to the study area which had been defined and depicted by the LBNA and wished to adopt it as his own.
74The question for me is not whether Mr. Glover agrees, or does not agree, with the study area defined by the LBNA. The question for me is whether the applicant has followed the direction of the Official Plan and established, through evidence, an appropriate study area and an analysis that shows that the proposal respects and reinforces the existing physical character of the geographic neighbourhood. I cannot give greater weight to Mr. Glover’s voiced opinion as an Expert when it is not, in the end, based on his own prepared evidence.
75OP Policy 4.1.5 establishes that 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 what is defined as the immediate context (the properties on the same street). The proposed development must be materially consistent with the prevailing physical character of both the broader and immediate contexts.
76The Policy goes on to state that:
“in instances of significant difference between the two contexts, the immediate context will be considered to be of greater relevance” (my emphasis).
77Mr. Glover acknowledged under cross-examination that he had not, anywhere in his evidence, explained a significant difference between the two contexts.
78The absence of a substantive analysis of the broader neighbourhood is a significant gap in Mr. Glover’s evidence. The development criteria in OP Policy 4.1.5 reference characteristics that are prevailing in the geographic neighbourhood. It is not sufficient for Mr. Glover to highlight a few examples on Ramsgate Rd to fulfil the requirements of the Policy.
Prevailing Physical Character and provision for a Mix of Characters
79There is a provision in OP Policy 4.1.5 that states as follows:
“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.”
80Thus, while the Policy does allow for development that does not fit into the prevailing category in geographic neighbourhoods that contain a mix of physical characters, Mr. Glover did not describe the characteristics in the geographic neighbourhood to establish the physical character, or what prevails in terms of size and configuration of lots, massing and scale, density etc. It therefore follows that he was not able to establish that a mix of physical characters exists in the neighbourhood.
Long Branch Neighbourhood Character Guidelines
81The LBNA provided in their evidence a detailed description of the physical character of the Long Branch neighbourhood via an exploration of the Long Branch Neighbourhood Character Guidelines (Guidelines). To be clear, the Long Branch neighbourhood as described in the Guidelines is a larger area than the study area for this application defined by the LBNA in accordance with Official Plan direction.
82The analysis conducted by the LBNA of the application in relation to the expectations of the Guidelines provided the only documented assessment that was available to me of the “fit” of the proposal within the physical character of the neighbourhood. The submission of the LBNA, on the basis of this analysis, was that the proposal does not fit the physical character of the neighbourhood.
83Mr. Glover, in his evidence, advised that the Guidelines represented “wishes of Council” and they had no statutory status and therefore he had not addressed them in his evidence.
84While the Guidelines do not have the status of a statutory requirement, they do provide a clear and detailed exposition of the municipality’s description of the general physical character of the area and could have provided a useful reference tool for the Applicant.
DEVELOPMENT CRITERIA OF OP POLICY 4.1.5
85Criteria b) and c) of OP Policy 4.1.5 are two criteria worthy of discussion in consideration of applications for a consent and severances.
b) prevailing size and configuration of lots;
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties.
OP POLICY 4.1.5 c) – Prevailing Size and Configuration of Lots
86Mr. Glover did not provide an analysis of the prevailing size and configuration of lots in the geographic neighbourhood, which he acknowledged under cross-examination.
87In a consent to sever application, consideration of the size and configuration of lots as directed by the Official Plan is of particular importance as it also binds to the Planning Act consideration of (f) the dimensions and shapes of the proposed lots (s.51(24 (f)).
88The LBNA, in their evidence, provided an analysis of lot frontages in the broader neighbourhood to support their opinion that the proposal does not respect and reinforce the prevailing size and configuration of lots.
OP POLICY 4.1.5 c) Prevailing Heights, Massing, Scale and Density
89Mr. Glover acknowledged that he had not analyzed the existing heights in the geographic area and he had not identified the prevailing heights, massing and scale in the geographic neighbourhood.
CONCLUSION – GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLAN
90Mr. Glover was the only qualified land use planning Expert to give evidence at the Hearing. I was able to hear Mr. Glover’s expert opinion on many aspects of the Application.
91As outlined above, I have found that there are key areas of analysis that are missing from the evidence of the Applicant. A decision of the TLAB must explain its basis for coming to the conclusion it does, based on the evidence brought through the proceedings. Mr. Glover’s opinion alone, without substantiation, does not carry the weight of evidence.
92I find that the Applicant has not provided a sufficient basis in their evidence for the TLAB to be satisfied that the applications maintain the general intent and purpose of the Official Plan.
GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW
VARIANCE FOR FLOOR SPACE INDEX
93The proposal requests a variance for a floor space index (FSI) of 0.7 times the area of the lot, whereas the Zoning By-law permits a maximum of 0.35 times the area of the lot. FSI is the ratio of the gross floor area of the structure in relation to the area of the lot.
94The combined Expert Witness Statement of Glover/ Colantonio states as follows:
“As a result of the reduction to the minimum lot area, the floor space index presents as higher than what it would be if the lot area was not reduced for the proposed development.”
95The principle entrenched in the FSI provision is that larger lots can accommodate more development than smaller lots. It is self evident that a lot area “reduced” via a severance provides for lesser total floor space on that lot. The task for the Applicant is to justify that the amount of floor space proposed is appropriate for the “reduced” size of the lot.
96Mr. Glover did not articulate his advice as to the general intent and purpose of the FSI provision in the Zoning By-law. It is my opinion that the effect of a too-large house on a too-small lot would be a condition that the FSI provision is intended to guard against.
97I have not been provided with evidence to support a conclusion that the variance for FSI maintains the general intent and purpose of the FSI provision in the Zoning By-law.
CONCLUSION – GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW
98Without support for the FSI variance, the overall design of the two houses proposed for the severed lots is not viable, which means that the justification and context for the remaining variances fall away. Variances will not be approved in the absence of a viable plan to tie them to.
99I find that I have not been provided with sufficient basis to conclude that the requested variances maintain the general intent and purpose of the Zoning By-law.
DESIRABLE FOR THE DEVELOPMENT OF THE LAND
100The LBNA asserted that the proposal threatens the stability of the remaining compliant frontages and mature tree canopy in this historical area.
101In response to this assertion, Mr. Glover opined that “just because one lot was given permission, doesn’t mean that every other lot would be given permission. It would have to be exactly the same.” Mr. Glover’s own justification for the proposal, however, is almost exclusively based on the existence of two other examples on Ramsgate Rd.
102The LBNA had presented a detailed defence of their characterization of the existing physical character of the Long Branch neighbourhood, including a lot frontage range of 9m to 15.24m. The proposal does not fit within the LBNA’s description of the character of Long Branch.
103In addition to the reasons set out above with respect to the Official Plan and the Zoning By-law, and in the absence of a contrary analysis of the character of the neighbourhood from the Applicant, I am not able to dismiss the LBNA’s destabilization concern. I therefore I do not find that the proposal is desirable for the development of the land.
MINOR
104The courts have established that the test is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.
105Mr. Zaloznik challenged Mr. Glover to qualify the word “minor”. Mr. Glover advised that it is subjective and one would have to look at the impacts on the surrounding situation and that he could not give an answer without the context.
106Mr. Zaloznik and this neighbours clearly described their fears about the impacts that the proposed development would have on them.
107There was a particular concern on the part of the neighbours and the LBNA about the impacts to trees and the tree canopy. The Applicant expended some efforts to redesign the proposal to reduce impact on boundary trees, including a shared mature red oak.
108While I recognize the deeply felt concerns of the neighbours, in an urban area the loss of sunlight and privacy are part of the evolving condition. The benchmark to prove an undue adverse impact from shadowing in this context is a threshold that is difficult to reach.
CONCLUSION
109I have not been provided the evidence to be satisfied that the application for consent to sever meets the criteria set out in s. 51(24) of the Act.
110I find that the proposal has not been shown to maintain the general intent and purpose of the Official Plan, which is a requirement for approval of the consent to sever as well as one of the four tests for approval of the variances.
111My finding with respect to the Official Plan is sufficient for the variance applications to fail as the legislation requires that all four tests must be met for the variances to be approved. In addition, however, I am not satisfied that the variances maintain the general intent and purpose of the Zoning By-law or that the development has been justified as desirable for the development of the land.
DECISION AND ORDER
112The Appeal is dismissed. The decisions of the Committee of Adjustment for Applications B0011/23EYK, A0171/23EYK, and A0170/23EYK, dated November 9, 2023, are confirmed.
A. Bassios
Vice Chair