Goldberg Group (Re), 2024 ONTLAB 286

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-12-12

24 192162 S45 02 TLAB, 24 192163 S45 02 TLAB

Goldberg Group (Re), 2024 ONTLAB 286

FINAL DECISION AND ORDER

Issuance Date:

December 12, 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):

GRAND COMMUNITIES (KIPLING) CORPORATION

Applicant(s):

GOLDBERG GROUP

Property Address:

1090 KIPLING AVE

COA File No.:

24 132613 WET 02 MV (A0157/24EYK), 24 132615 WET 02 MV (A0158/24EYK)

TLAB Case File No.:

24 192162 S45 02 TLAB, 24 192163 S45 02 TLAB

Hearing Date(s):

2024-11-15

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

Applicant

Goldberg Group

Appellant

Grand Communities (Kipling) Corporation

R. Cheeseman

S. Fleming

Party

M. Snidero

Party

H. Sawick

INTRODUCTION AND CONTEXT

1This appeal arises from a decision of the City of Toronto (City) Committee of Adjustment (COA), issued July 18, 2024, refusing variances that would permit two fourplex buildings on the property at 1090 Kipling Avenue (subject property). A fourplex building is one that contains four dwelling units stacked vertically. These two new buildings, containing eight dwelling units, would replace one existing detached house currently situated on the subject property.

2The Committee of Adjustment had previously (August 2022) given consent to sever the existing property, thereby creating two new lots (1090A which is the south half of the former lot and 1090B, which is the north half). It also approved variances related to lot frontage and lot area needed for the new lots. However, other variances to permit two new detached houses were refused at that time.

3As a condition of the consent to sever (the creation of two new lots from the original lot), the City required a dedication of 4.89 metres from the front of the lot to permit an eventual road widening of Kipling Ave. The dedicated land was subsequently transferred to the City by the Applicant.

4No variance to the Zoning By-law is required to permit fourplexes on these properties, as the City of Toronto harmonized Zoning By-law 569-2013 was amended in 2023 to permit duplex, triplex and fourplex buildings anywhere in the City’s Residential zones, including those which were previously restricted to single detached dwellings.

5The Applicant is proposing no vehicle parking for either building. Amendments to the City’s harmonized Zoning By-law also reduced the minimum parking requirement for this development to zero, so no parking variance is required.

6The variances requested are virtually the same for each fourplex, except for some directions. As a result, the Applicant is requesting that the Toronto Local Appeal body (TLAB) grant the following seven (7) variances (Application) for each proposed dwelling, fourteen (14) in total:

1. Section 900.3.10.(21)(C), By-law 569-2013.

The maximum permitted gross floor area, including an attached or detached garage, is 135 m² plus 25% of the lot area (212.78 m²), provided that the maximum floor space index does not otherwise exceed 0.5 (155.6 m²). The new fourplex, will have a gross floor area of 135 m² plus 74% of the lot area (365 m²) and will have a floor space index of 1.17 (365 m²).

2. Section 900.3.10.(21)(D)(i), By-law 569-2013.

The minimum required side yard setback is 0.9 m, provided the aggregate side yard setback is not less than 2.1 m. The new fourplex will be located 0.6 m from the south side lot line, with an aggregate side yard setback of 1.8 m.

3. Section 10.20.40.10.(1)(C)(ii), By-law 569-2013.

The maximum permitted height is 10 m. The new fourplex will have a height of 11.18 m.

4. Section 10.20.40.10.(2)(A), By-law 569-2013.

The maximum permitted height of all side exterior main walls facing a side lot line is 7.5 m for a minimum of 70% of the total width of all side exterior main walls. The new fourplex will have a side exterior main wall height of 9.9 m for 100% of the side exterior main walls.

5. Section 10.20.40.10.(6), By-law 569-2013.

The maximum permitted height of the first floor above established grade is 1.2 m. The new fourplex will have a first floor height of 1.86 m above established grade.

6. Section 10.5.40.60.(1)(A)(i), By-law 569-2013.

A platform without main walls, attached to or less than 0.3 m from a building with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback 2.5 m if it is no closer to a side lot line than the required side yard setback. The proposed platform will encroach 1.2 m into the required front yard setback and will be located 0.6 m from the north side lot line.

7. Section 10.5.40.60.(2)(B)(i), By-law 569-2013.

A canopy, awning, or similar structure not covering a platform may encroach in a front or rear yard 2.5 m, if it is no closer to a side lot line than the minimum required side yard setback (0.9 m). The proposed canopy will encroach 1.5 m into the required front yard setback and will be located 0.3 m from the north side lot line.

7The variances applicable to both proposed buildings were consolidated at this Hearing and, therefore, my decision applies to both.

8After hearing and considering all the evidence, the Appeal is dismissed and the decision of the Committee of Adjustment is confirmed for the reasons to follow.

THE LEGISLATIVE AND POLICY FRAMEWORK

9Provincial 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 2. (a) to (s) in the Planning Act.

10Provincial 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.

11Variance – 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 APPELLANT’S EVIDENCE

12I advised those at the Hearing that I had visited the site, walked the neighbourhood and familiarized myself with the area context. I also reviewed all the prefiled materials in this matter but advised that it is the evidence to be heard that is of importance.

13The Applicant called one witness, Mr. Adam Layton, who is a Registered Professional Planner (RPP). Mr. Layton is employed by the Goldberg Group, a land use planning consultancy. After outlining his qualifications and experience I qualified Mr. Layton as an expert witness to provide opinion evidence in the area of land use planning and he was affirmed.

14Ms. Fleming, the Applicant’s solicitor, offered the following documents as Exhibits, which were entered into the record at the Hearing and identified as follow: 1) Expert Witness Statement of Mr. Layton, 2) Acknowledgement of Expert’s Duty, 3) Document Disclosure (Document Book) and 4) Visual Evidence Book, all provided by the Appellant.

15Mr. Layton recommended that the Appeal be allowed and the decision of the Committee of Adjustment be overturned so that the proposed fourplex buildings can go forward. He was of the opinion that all the requested variances maintain the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the appropriate development or use of the land; and are minor.

16Mr. Layton opined that the proposal has proper regard for the Provincial Interests, is consistent with the Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe. Specifically, he asserted that the proposal will help to meet the Province’s and City’s housing targets.

17He reviewed his Visual Evidence Book, which included a number of photos of the subject property and the surrounding area. He noted that transit service (buses on Kipling Ave. and Burnhamthorpe Road) was good and that the site was less than one kilometre north of the Kipling subway station. There were ample community services in this well-established area, including retail and other commercial uses within a 10-minute walk.

18Mr. Layton confirmed that the site is designated Neighbourhoods in the City of Toronto Official Plan. Neighbourhoods are physically stable areas but are not meant to remain “frozen in time”.

19He reviewed Official Plan Amendment (OPA) 649, approved by City Council in May 2023. OPA 649, and the corresponding implementing zoning by-law, permit the construction of multiplexes city-wide on lands designated as Neighbourhoods.

20OPA 649 states that “Despite Policy 4.1.5 [of the main Official Plan] multiplexes are permitted in Neighbourhoods, subject to the following policies:…

21b) Development of multiplexes:

22(i) will maintain the low-rise built form of each geographic neighbourhood, including in particular…

23(ii) is encouraged to include large units, and should include at least one unit that contains multiple bedrooms;

24(iii) will provide entrances that are safely accessible from the street, which may be located at the front, side or rear of the building;

25(Iv) should not result in the injury or removal of a healthy tree protected under Municipal Code Chapters 608, 658, and 813 on the subject property and adjacent properties;

26(vii) will minimize privacy impacts between adjacent dwelling units;

27(viii) will integrate with existing grades at the property line; and

28(Ix) is encouraged to expand the urban tree canopy through the planting of a new tree on a lot with a multiplex.

29Mr. Layton contended that the proposed development conforms to these policies, except (iv), which he asserted can be remedied through the tree permitting process.

30Of particular note is that some of the criteria in Section 4.1.5 of the main Official Plan that are to be used in determining the character of a neighbourhood are not included in the policies of OPA 649.

31Section 4.1.5 states that “Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

32c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties; [my emphasis]

33e) prevailing location, design and elevations relative to the grade of driveways and garages;

34Mr. Layton opined that the policies in OPA 649 “supersede” those in Section 4.1.5. In his view the requirement that proposed multiplex development respect and reinforce prevailing heights, massing, scale and density of existing buildings in the neighbourhood would not apply to these fourplexes.

35Concurrent with the passing of OPA 649, City Council also approved amendments to Zoning By-law 569-2013 implementing the direction provided by the OPA. The Zoning By-law Amendment permits multiplexes in any residential zone, eliminates Floor Space Index (FSI, which is another way of expressing GFA) controls, and prescribes revised setbacks. It also sets a height limit of 10 metres for multiplexes.

36He noted that the Community Planning Division did not provide any comment or recommendations on the circulation of the subject Application to the COA and interpreted this to mean that City Planning did not have concerns about the proposal.

37The proposed development would allow the existing curb cut to be removed, as there would be no driveway. Similarly, the existing paved driveway would be removed and replaced with landscaping. He saw these as positive elements for the area.

38He recognized that the built form would be different from that existing in the area but felt that the proposal would not destabilize the neighbourhood. He noted that “compatible” does not mean “identical”. He stated that, in his opinion, the proposed buildings could co-exist with the existing buildings in a harmonious manner and are appropriate for the development of the property. Any impacts would be minor, modest and acceptable. In his view, the recent amendments to the Official Plan and Zoning By-law 569-2013 envisage just this kind of development in the Neighbourhoods.

39With regard to the individual variances, Mr. Layton offered specific evidence for each:

40Variance 1 – Gross Floor Area (GFA) – although amendments to the Zoning By-law implementing OPA 649 removed GFA (also known as FSI) limits for multiplexes on the subject property, a variance for GFA is still required. This is because a by-law that originated in the former City of Etobicoke (x.21) is still in force, limiting the FSI on the site to 0.5.

41Mr. Layton stated that he had been told by City staff that their intention is to ask Council to repeal this FSI restriction to bring it into conformity with the amendments to Zoning By-law 569-2013, which remove FSI restrictions for multiplexes. However, this has yet to be completed.

42He submitted that one of the reasons that GFA controls were no longer needed was because the standards that control the building envelope (height, setbacks, length) are sufficient to produce built forms which would be appropriate for the development of a property.

43Variance 2 – Side Yard Setbacks – the side yard setbacks are less than that required by the Zoning By-law because the “interior” setback, i.e. the distance between the two new buildings, is approximately 1.3 metres, consisting of 0.65 metres from the side wall of each new building to the lot line separating the two new properties. The setbacks on the “outside” of the buildings, adjoining the neighbouring properties, are over 1.2 meters, which he considers to be a reasonable and common setback.

44Variance 3 – Height of Building – Mr. Layton submitted that four applications including variances for heights exceeding 10 metres have been approved by the Committee of Adjustment in the wider neighbourhood. He noted that one such approval was relatively close, at 1058 and 1060 Kipling Ave. The approved height was 10.19 metres.

45Mr. Layton mentioned that the Committee of Adjustment, in its 2022 decision granting the severance, also considered a height variance request of 9.75 meters, which it refused.

46He stated that the height variance was required to provide adequate space within each proposed building for four units. He felt that the additional height would have little impact on the neighbours with regards to light, view and privacy, given the limited number of windows on the side walls of the buildings.

47Mr. Layton also mentioned that Council had recently approved OPA 727, which would permit townhouses and 6-storey apartment buildings on major streets in Neighbourhoods. Kipling Ave. is a major street. He considered the height requested by the Applicant in this variance (11.18 metres) to be relatively moderate in comparison to heights that are permitted for townhouses and 6-storey apartment buildings.

48Variance 4 – Height of Sidewalls – Mr. Layton did not address this variance directly.

49Variance 5 – Height of First Floor above Grade – established grade is actually 0.3 metres below the surface of the ground at the front yard setback line. Because of this, he asserted that the appearance of the front wall would actually be less imposing than suggested by the variance.

50Variance 6 – Platform Encroachment into Side Yard and Variance 7 – Canopy Encroachment into Side Yard - he was of the opinion that these two variances have no impact on the neighbourhood and are “technical” in nature as they are linked to the side yard setback variances.

51Mr. Layton also reviewed the issues raised by the two other Parties, who are opposing the proposed development, as enunciated in their Witness Statements. In his comments he reiterated the evidence reported above. It would be repetitive to repeat that testimony again. He also mentioned that he is not qualified to give expert testimony on the effect the proposed development might have on property values.

OTHER PARTIES’ EVIDENCE

52Ms. M. Snidero lives across the street from the site and has lived there since 1964. She felt it was not credible that the variances requested could be considered minor as she asserted there would be unacceptable impacts on her property. The fact that the subject property would be redeveloped and transition from including one dwelling unit to the proposed eight is, in her mind, not minor and the change would have a significant impact. The possibility that a future property owner could try to locate parking on the site was also a concern as was the potential for flooding to her property from the proposed redevelopment.

53She felt the proposed multiplexes would not be compatible with the neighbourhood, as there is no built form like this in the immediate area. She wondered why this type of development is needed here when there is lots of development going on within two kilometers of the site. She certainly did not want to see these buildings from her front window.

54Ms. Snidero expressed concerns about the possibility that even larger buildings could be allowed in the neighbourhood and stated that she would prefer to see single detached homes built on the subject properties.

55Ms. H. Sawick is the neighbouring property owner and resident to the south of the site. She echoed many of the concerns expressed by Ms. Snidero. She was also concerned about garbage handling and increased traffic.

56She did not object to the original proposal for single detached houses but suggested that multiplexes such as the ones being proposed are anything but a gentle, sensitive fit for the neighbourhood. The fact that the proposed GFA is more than double that permitted by the Zoning By-law cannot be considered minor.

57As an abutting neighbour she was particularly concerned about the visual impact of the height of the side walls. She felt that noise and privacy issues would affect her ability to enjoy her property and its value.

58She said she did not have the resources to hire solicitors and expert witnesses to help present her thoughts to the TLAB. She expressed her frustration and depression when contemplating the impact the proposal would have on her life.

59Ms. Sawick noted that the Committee of Adjustment had refused the application and she urged the TLAB to do likewise and dismiss the appeal.

60When Ms. Fleming asked Ms. Sawick how she saw the difference between owners and renters I indicated that this was not a planning matter and the City has no ability to control owner vs. rental occupation, so the issue was irrelevant.

61City of Toronto Urban Forestry did provide comment recommending refusal of Variance 1 due to the necessity of removing a protected tree.

ISSUES AND ANALYSIS

62I consider variances 3, 4 and 5, relating to the height of the building, to be the “key” variances in this application.

63Mr. Layton indicated that the height variances were needed to permit adequate internal space for the proposed fourplexes. This is putting the cart before the horse. The TLAB’s mandate is to determine whether the building envelope that would be permitted by the granting of these variances meets the four tests of the Planning Act, including Official Plan policies and Zoning By-law standards.

64Variance 3 – Height of Building, Variance 4 – Height of Sidewalls and Variance 5 – Height of First Floor above Grade – these variances all relate to the height and built form of the development. I agree with Mr. Layton that GFA restrictions are no longer appropriate to control building envelopes and that the height, length and setback by-law performance standards are adequate.

65In this proposal, the length of the building is within the maximum standard permitted in the zoning by-law and the proposed buildings substantially meet the setback requirements, except for a “technical” side yard variance. As such, height becomes the critical development standard for ensuring an appropriate built form.

66I am not persuaded by Mr. Layton’s argument that OPA 649 completely supersedes Policy 4.1.5 of the Official Plan (OP). OPA 649 still requires multiplex development to “maintain the low-rise built form of each geographic neighbourhood”. Although it lists some criteria which should be observed “in particular,” I find that it does not mandate the elimination of consideration of the other criteria in the main OP, such as respecting and reinforcing prevailing heights, massing, scale, density … of nearby residential properties”

67I interpret this to mean that multiplexes are to be given more latitude regarding conformity to the existing scale of development than single detached houses but that such proposals should still have regard for the prevailing built form in the area.

68Finally, Zoning By-law amendments which were enacted as recently as last year to implement OPA 649 are very clear that the height limit for multiplexes in Neighbourhoods is 10 metres. This is not an anachronistic holdover from the time when only single detached houses were permitted.

69In fact, the Zoning By-law amendment that was approved by Council on May 22, 2024 to implement OPA 727 (the OPA permitting townhouses and 6-storey apartment buildings along major streets in Neighbourhoods, among other things) also specifies that the maximum height for multiplexes in Neighbourhoods is 10 metres. That regulation is little more than six months old.

70The development standard regarding height of side walls is intended to restrict overall height of residential dwellings and produce built form which is in keeping with the other buildings in the area. Granting such a variance would permit a “boxier” built form than would otherwise be allowed, which is contrary to OP policy 4.1.5 and is not desirable for the development of the lot.

71With regard to the height of the first floor above grade, this is another factor that distinguishes the proposed buildings from those in the immediate area, contrary to Policy 4.1.5. The first floor will be considerably higher that other buildings, including some recently built examples.

72Based on the above, I find that these three variances do not maintain the general intent and purpose of the Official Plan and the Zoning By-law, are not desirable for the appropriate development or use of the land; and are not minor.

73The jurisprudence of the Ontario Land Tribunal and the TLAB holds that if any of the requested variances fail, the application may fail with it. In the case at hand, I find that the three “key variances” related to building height, side wall height, and first floor above grade have failed. Given that decision, the whole application fails.

DECISION AND ORDER

74The Appeal is dismissed and the decision of the Committee of Adjustment, dated July 18, 2024, for the subject Application is confirmed.

75No further notice is required in accordance with s.45(18.1.1) of the Planning Act.

B. Gallaugher Panel Member