Toronto (City) v. Craig Race Architecture, 2024 ONTLAB 288

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-12-18

24 159184 S53 14 TLAB

24 159194 S45 14 TLAB

24 159201 S45 14 TLAB

Toronto (City) vs Craig Race Architecture, 2024 ONTLAB 288

FINAL DECISION AND ORDER

Issuance Date:

December 18, 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):

CITY OF TORONTO

Applicant(s):

CRAIG RACE ARCHITECTURE

Property Address:

17 BOOTHROYD AVE

COA File No.:

23 228295 STE 14 CO (B0070 23 TEY)

23 228298 STE 14 MV (A1008 23 TEY)

23 228299 STE 14 MV (A1009 23 TEY)

TLAB Case File No.:

24 159184 S53 14 TLAB

24 159194 S45 14 TLAB

24 159201 S45 14 TLAB

Hearing Date(s):

October 01, 2024; November 18, 2024

Deadline Date for Closing Submissions/Undertakings:

December 11, 2024

Decision Delivered By:

TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

CITY OF TORONTO

A. SANDHU

Party

A. R. SHARPE

A. STEWART

INTRODUCTION AND CONTEXT

117 Boothroyd Avenue (the "Site") is located in the East York area of the City of Toronto, south of Danforth Avenue, east of Jones Avenue, west of Jones Avenue, and north of the Metrolinx rail line.

2The Site was the subject of an application in 2021 for minor variances to convert the existing building into a six-unit apartment (the "2021 Application").

3The 2021 Application was approved by the Committee of Adjustment (the "2021 C of A Decision") and subsequently appealed by a neighbour.

4The 2021 Application was approved by the Toronto Local Appeal Body (the "TLAB"). However, the applicant did not proceed to convert the existing building into a six-unit apartment.

5On December 8, 2023, the same Applicant/Owner (the "AO") applied for a consent to sever the Site into two lots, and minor variances for a reduced front lot line, to permit the construction of a detached building containing four units on each of the lots (the "2023 Applications").

6On May 23, 2024, the C of A granted the consent subject to the standard City conditions concerning taxes, municipal numbers and reference plans. The C of A also approved one variance, a reduction in the length of the front lot line, for each of the two new lots to be created, subject to conditions concerning tree protection and proximity to the rail corridor (the "2024 C of A Decisions").

7At its meeting on June 26 and 27, 2024, City Council authorized the City Solicitor to appeal the 2024 C of A Decisions, and oppose them at the TLAB. However, Council also instructed the City Solicitor to resolve the matter at her discretion, after consultation with the local Councillor and City staff.

8On October 1, 2024, I presided at the first day of a TLAB Hearing which considered the 2023 Applications. After hearing evidence from the Applicant/Owner's planner, including amendments to the Applications and an undertaking to protect the existing tenant to the City's satisfaction (the "Amended Applications"), the City Solicitor agreed not to oppose the Amended Application.

9However, counsel for both the A/O and the City agreed that the Amended Applications required written notice to be given to neighbours and others who previously received notice of the 2023 Applications pursuant to S. 45(18.1.1) of the Planning Act.

10By letter dated October 13, 2024, counsel for the A/O, Ms. Stewart, mailed a notice to affected residents concerning the Amended Applications (the "Notice"). The Notice described revisions to the applications highlighting an increase in building depth and a reduction in front yard soft landscaping. It also stated that the TLAB Hearing concerning the Site would resume on November 18, 2024.

11On November 18, 2024, I presided at a continuation of the TLAB Hearing. On that date, Ms. Stewart proposed further amendments concerning front yard setback and soft landscaping (the "Further Amendments"). Counsel for the City, Ms. Sandhu, agreed that the Further Amendments were minor and did not require further circulation.

12Ms. Stewart, with the consent of Ms. Sandhu, requested that I withhold the TLAB Decision until she submitted further minor revisions, primarily related to the conditions to be attached to the minor variances if authorized by the TLAB.

13On December 11, 2024, Ms. Stewart submitted further documentation.

THE LEGISLATIVE AND POLICY FRAMEWORK

14Provincial 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.

15Provincial 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 for the subject area ('Growth Plan').

16Consent – 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).

17Minor Variance – 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.

18Amended Application - Section 45(18.1)

On an appeal, the Tribunal may make a decision on an application which has been amended from the original application, if, before issuing its order, written notice is given to the persons and agencies who received notice of the original application under subsection (5) and to other persons and public bodies prescribed under that subsection.

19Exception– S. 45(18.1.1)

The Tribunal is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor.

SUMMARY OF EVIDENCE

20On September 3, 2024, counsel for the City, Ms. Sandhu, submitted witness statements from Ms. Camryn Chin and Mr. Drew Ramsaroop in support of the City's appeal, in opposition to the 2023 Applications.

21On Sept. 4, 2024, Ms. Stewart submitted a witness statement from Mr. Graig Uens, the A/O's expert planner, in support of the 2023 Applications.

22On October 1, 2024, the first day of the hearing, counsel for the Owner/Applicant called Mr. Greg Uens to give oral evidence. Mr. Uens described his experience as a senior land use planner who led the City of Toronto's initiative in the Expanding Housing Options in Neighbourhoods initiative (the "EHON"). I qualified Mr. Uens as an expert witness able to provide opinion evidence in the area of land use planning.

23Mr. Uens provided evidence that the proposed consent had regard for matters of provincial interest referred to in Section 2 of the Planning Act; was consistent with the PPS and Growth Plan; and met the criteria for a plan of subdivision set out in S. 51 (24) of the Planning Act.

24Mr. Uens also provided evidence with respect to the proposed variances. He explained that the minor variances for the reduction in the two front lot lines arose from their location at the end of a dead-end street and opined that the prevailing patterns of width and area of the lots, of rear and side yard setbacks, and building height and density would be maintained.

25Mr. Uens also provided plans prepared by Criag Race Architecture Inc. dated September 30, 2024 showing two changes from the 2024 C of A Decision:

• the building depth would be increased from 19 metres to 21 metres, resulting from the Applicant/Owner's desire to shift the buildings proposed for the new lots 2 metres further east, to provide a wider walkway for emergency access to both buildings; and

• the front yard soft landscaping would decrease from 75% required to 17% for the south lot and 37% for the north lot (collectively, the Amended Applications).

26Mr. Uens opined that the additional building depth and decreased soft landscaping would be comparable to other houses in the neighbourhood.

27Mt. Uens emphasized that the Amended Applications were consistent with the EHON. Eight (8) rental units would replace three (3) rental units currently on the site, for a net increase of five (5) rental units. The Amended Applications were consistent with Official Plan Amendment 469, which permits multiplex buildings in areas designated Neighbourhood and zoned Residential, as long as the new development continues the prevailing pattern of streets and blocks, setbacks, lot sizes, landscape and tree canopy characteristics.

28Mr. Uens also stated that the Owner/Applicant was working with City staff to protect the existing tenant who currently occupies one of the existing rental units on the Site.

29Ms. Sandhu did not call any witnesses at the hearing on Oct.1, 2024. She stated that the City accepted the Owner/Applicant's undertaking to protect the existing tenant. She further advised that the City was prepared, in principle, to resolve the matter.

30Ms. Sandhu and Ms. Stewart agreed that the Amended Applications, requesting additional variances for an increase in building depth and reduction in soft landscaping, should be circulated to area residents who received notice of the 2023 Applications.

31On Oct. 13, 2024, Ms. Stewart circulated a notice describing two new variances: building depth would increase from 19 to 21 metres; and front yard soft landscaping would be reduced, from 75% to 17% for the south lot and 37% for the north lot (the "Notice").

32On November 18, 2024, I continued the Hearing for a second day. Ms. Stewart advised that she received no responses to the Notice and no residents appeared at the hearing continuation.

33Ms. Stewart advised orally that further discussions with Toronto Buildings resulted in a request for two additional minor changes to the variances requested:

• the pedestrian walkway in front of the buildings would benefit from the introduction of stairs due to the increase in elevation from south to north of the two proposed lots, requiring a variance to permit exterior stairs within .6 m. from the property line; and

• the amount of soft front yard landscaping would increase from 17% to 21% for the south lot, and decrease from 37% to 22% for the north lot (collectively, the "Further Amendments").

34Ms. Stewart submitted that the Further Amendments were minor, and did not require further circulation. She submitted a Revised List of Variances based on the Further Amendments.

35Ms. Sandhu agreed that the Further Amendments were minor, and no further circulation was required. She advised TLAB that the City did not oppose the proposed consent and Revised List of Variances.

36At the conclusion of the continuation of the hearing, both counsels requested that the TLAB withhold issuing a decision until they had an opportunity to further review conditions to be attached to the consent and variances.

37On December 11, 2024, Ms. Stewart provided, with the consent of Ms. Sandhu, the following:

Agreed Language to be inserted into the Decision;

Revised List of Variances (the "Revised Variances");

Conditions of Approval for the Consent (the "Consent Conditions");

Conditions of Approval for the Variances (the "Variance Conditions"); and

Revised Site Plans & Elevations prepared by Criag Race Architecture Inc. dated

2014 Nov 15 (the "Revised Site Plan & Elevations").

ISSUES AND ANALYSIS

38The purpose of the consent application is to create two lots, each having a front lot line of 1.8 m. The consent application has been revised to also request consent to convey mutual easements over a portion of the front yard of each lot, and over a walkway of 1.0 m total width along the middle of both lots, to provide for pedestrian access to both lots.

39The purpose of the variance applications is to permit the creation of eight (8) new rental units in two multiplex buildings, one on each lot, increasing the number of rental units on the Site by five (5).

40I note that counsel for the Owner/Appellant circulated the Notice describing the Amended Applications to the neighbours who received notice of the 2023 Applications as required by the Planning Act. No neighbours responded to the Notice or appeared at the hearing continuation on November 18, 2024.

41I further note that the City agreed that Further Amendments proposed by the O/A were minor.

42In my opinion, the Further Amendments are minor, and do not require further circulation, pursuant to S. 45 (18.1.1) of the Planning Act.

43I accept the uncontradicted expert opinion evidence of Mr. Uens, that the Amended Applications conform to the criteria for a consent pursuant to subsections 51 (24) and 53 (1) of the Planning Act.

44I also accept the uncontradicted expert opinion evidence of Mr. Uens that the Amended Applications maintain the general intent and purpose of the Official Plan, as recently amended, which allows multiplex buildings in all areas designated Neighbourhood, providing the prevailing pattern of streets and blocks, setbacks, lot sizes, landscape and tree canopy characteristics, is maintained. I also accept his evidence that the other statutory tests for minor variances are met, pursuant to S. 45 (1) of the Planning Act.

45I accept Ms. Stewart's uncontradicted submissions that the Further Amendments also meet the statutory criteria for a consent and minor variances.

46I have reviewed the conditions proposed jointly by counsel for the Owner/Applicant and the City. I am satisfied that the conditions are advisable and reasonable with respect to maintaining the general intent and purpose of the Official Plan, and also protecting the existing tenant living at the Site.

47I commend counsel for the Owner/Applicant and counsel for the City for working together to resolve this dispute, to further the objectives of both parties by providing 5 additional rental units, protecting the existing tenant, and maintaining the prevailing existing land use pattern in the neighbourhood.

CONCLUSION

48I will authorize the consent requested in the 2023 Applications subject to the standard conditions, as set out below. I will also approve the minor variances requested in the Amended Applications, revised by the Further Amendments, and will impose conditions agreed by both Parties, as set out below.

DECISION AND ORDER

49I authorize the consent to sever the Site into two lots, as shown on the draft R-Plan prepared by Vladimir Dosen Surveying dated November 10, 2023, attached as Exhibit 1, subject to the following conditions for the consent:

1. Confirmation of payment of outstanding taxes to the satisfaction of the Revenue Services Division, in the form of a statement of tax account current to within 30 days of an owner's/applicant's request to the Deputy Secretary-Treasurer of the Committee of Adjustment to issue the Certificate of Official.

2. Municipal numbers for the subject lots indicated on the applicable registered reference plan of survey must be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services. Contact municipal numbering staff at municipaladdress@toronto.ca to obtain or verify new municipal address prior to the issuance of a Certificate of Official. All addressed parcels and structures must have the correct municipal address posted. For further details visit https://www.toronto.ca/city-government/planning-development/municipal-numbering-of-a-property/

3. Submit a revised draft Reference Plan of Survey to the Chief Engineer & Executive Director, Engineering & Construction Services, for review and approval, prior to depositing in the Land Registry Office, that is:

a. In metric units and integrated to the 1983 North American Datum (Canadian Spatial Reference System and the 3° Modified Transverse Mercator Projection); and,

b. Shows the coordinate values of the four main corners of the subject lands in a schedule on the face of the plan.

4. One electronic copy of the registered reference plan of survey integrated to NAD 83 CSRS (3 degree Modified Transverse Mercator projection), delineating by separate Parts the lands and their respective areas, must be filed with, and to the satisfaction of, the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services.

5. One electronic copy of the registered reference plan of survey satisfying the requirements of the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services must be filed with the Deputy Secretary-Treasurer of the Committee of Adjustment (see condition 4 above).

6. Prepare and submit a digital draft of the Certificate of Official, Form 2 or 4, O.Reg. 197/96, referencing either subsection 50(3) or (5) of the Planning Act if applicable as it pertains to the conveyed land and/or consent transaction to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment.

7. Once all of the other conditions have been satisfied, the owner/applicant must request, in writing, that the Deputy Secretary-Treasurer of the Committee of Adjustment issue the Certificate of Official.

8. Within TWO YEARS of the date of the giving of this notice of decision, the owner/applicant must comply with the above-noted conditions.

50I approve the following variances as set out below, subject to the conditions outlined herein:

Part 1 – South Lot

1. Chapter 10.5.30.20.(2), By-law 569-2013 A residential building may not be erected on a lot that does not have a front lot line of at least 3.5 m. In this case, the new dwelling will be located on a lot with a front lot line that measures 1.79 m.

2. Chapter 10.10.40.30.(1), By-law 569-2013 The permitted maximum building depth for a duplex, triplex or fourplex is 19.0 m if the lot has a lot depth of 36.0 m or greater and a lot frontage of less than 10.0 m. The proposed building depth is 21.0 m.

3. Chapter 10.5.50.10.(1)(D), By-law 569-2013 A minimum of 75% of the required front yard landscaping must be soft landscaping. In this case, the proposed front yard soft landscaping is 21%.

4. Chapter 10.5.40.60.(3)(A), By-law 569-2013 Exterior stairs providing access to a building or structure may encroach into a required minimum building setback provided they are no closer to a lot line than 0.6 m. The front exterior stairs will be located 0.0 m from the property line.

Part 2 – North Lot

1. Chapter 10.5.30.20.(2), By-law 569-2013 A residential building may not be erected on a lot that does not have a front lot line of at least 3.5 m. In this case, the new dwelling will be located on a lot with a front lot line that measures 1.79 m.

2. Chapter 10.10.40.30.(1), By-law 569-2013 The permitted maximum building depth for a duplex, triplex or fourplex is 19.0 m if the lot has a lot depth of 36.0 m or greater and a lot frontage of less than 10.0 m. The proposed building depth is 21.0 m.

3. Chapter 10.5.50.10.(1)(D), By-law 569-2013 A minimum of 75% of the required front yard landscaping must be soft landscaping. In this case, the proposed front yard soft landscaping is 22%.

4. Chapter 10.5.40.60.(3)(A), By-law 569-2013 Exterior stairs providing access to a building or structure may encroach into a required minimum building setback provided they are no closer to a lot line than 0.6 m. The front exterior stairs will be located 0.0 m from the property line.

51Conditions of Approval for the Requested Variances:

1. The variances shall only be authorized to permit the construction of a multiplex with a minimum of four dwelling units on each of the resulting lots.

2. The proposed multiplexes shall be constructed in accordance with the requested variances and substantially in accordance with the following plans prepared by Craig Race Architecture Inc. and dated November 15, 2024: Site Plans (A0.01a), Proposed East and West Elevations (A2.00), Proposed Lot 1 South and Lot 2 North Elevation (A2.01), and Proposed Lot 1 North and Lot 2 South Elevation (A2.02). The Site Plans and Elevations are attached as Exhibit 2. Any other variances that may appear on these plans but are not listed in the written decision are NOT authorized. For clarity, this condition is not intended to prevent minor adjustments to the window/door size and location on the approved plans.

3. Solid waste disposal bins shall be stored in a bin storage enclosure.

4. The owner/applicant must submit a complete application for permit to injure or remove privately owned tree(s) under Municipal Code Chapter 813, Trees Article III, Private Tree Protection, to the satisfaction of the Supervisor, Urban Forestry, Tree Protection and Plan Review, Toronto and East York District.

5. A new tree shall be planted on each of the lots. The new trees shall be planted in the front yard if possible, or in the alternative, in the rear yard.

6. As per section 3.9 of the Federation of Canadian Municipalities and Railway Association of Canada's Guidelines for New Development in Proximity to Railway Operations, the Owner shall grant Metrolinx an environmental easement for operational emissions. The environmental easement provides clear notification to those who may acquire an interest in the subject property and reduces the potential for future land use conflicts. The environmental easement shall be registered on title of the subject property. A copy of the form of easement is included for the Owner's information. The applicant may contact Farah.Faroque@metrolinx.com with questions and to initiate the registration process. (It should be noted that the registration process can take up to 6 weeks).

7. Provide confirmation to Metrolinx, that the following warning clause has been inserted into all Development Agreements, Offers to Purchase, and Agreements of Purchase and Sale or Lease of each dwelling unit within 300 metres of the Railway Corridor, to the satisfaction of the Project Analyst, Third Party Projects Review, Metrolinx:

Warning: The owner/applicant is advised that the subject land is located within Metrolinx's 300 metres railway corridor zone of influence and as such is advised that Metrolinx and its assigns and successors in interest has or have a right-of-way within 300 metres from the subject land. The owner/applicant is further advised that there may be alterations to or expansions of the rail or other transit facilities on such right-of-way in the future including the possibility that Metrolinx or any railway entering into an agreement with Metrolinx to use the right-of-way or their assigns or successors as aforesaid may expand or alter their operations, which expansion or alteration may affect the environment of the occupants in the vicinity, notwithstanding the inclusion of any noise and vibration attenuating measures in the design of the development and individual lots, blocks or units.

8. The owner shall provide an acceptable tenant relocation and assistance plan for all existing tenants of 17 Boothroyd Avenue ("the Lands"), whose rental units will be demolished. The tenant relocation and assistance plan shall be consistent with the City's standard practices and developed in consultation with, and to the satisfaction of, the Chief Planner and Executive Director, City Planning.

9. The owner shall enter into, and register on title to the lands at 17 Boothroyd Avenue, an agreement pursuant to Section 45(9) of the Planning Act to secure the tenant relocation and assistance plan required in Condition 8 above.

R. Kanter

Panel Member

Exhibit 01

Exhibit 02