Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
2025-01-06
23 221918 S53 06 TLAB
Toronto (City) vs Lopes, 2025 ONTLAB 293
DECISION AND ORDER
Issuance Date:
January 6, 2025
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):
CITY OF TORONTO
Applicant(s):
BRUNO LOPES
Property Address:
44 EXBURY RD
COA File No.:
23 141114 NNY 06 CO (B0013/23NY)
TLAB Case File No.:
23 221918 S53 06 TLAB
Hearing Date(s):
December 16, 2024
December 17, 2024
Deadline Date for Closing Submissions/Undertakings:
N/A
Decision Delivered By:
TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
Bruno Lopes
Appellant
City of Toronto
J. Dexter A. Sandhu
Party
YMP Investments Ltd.
M. Baker
INTRODUCTION AND CONTEXT
YMP Investments Ltd. (the “Owner”) is the owner of 44 Exbury Road (the “Property”). The Property is located on the local residential street known as Exbury Road, which is north of Wilson Avenue and west of Keele Street in the area of the former City of North York.
The Property is presently improved with a detached two storey dwelling. The Owner wishes to demolish this dwelling and construct in its stead a two storey semi-detached dwelling. For this purpose, the Owner applied to the North York panel of the Committee of Adjustment (the “Committee”) for a consent to sever and for a set of variances for each of the two proposed dwellings, which will be detailed below.
In connection with circulation of the applications, staff from the City of Toronto (the “City”) Planning Division recommended against approval of the applications.
The Committee approved all three applications.
The City’s Legal Division prepared a Notice of Appeal with respect to those three decisions. However, that omnibus appeal letter was only served on the Secretary of the Committee on November 2, 2023, in time for the period of appeal relating to the consent decision, which was November 8, 2023. But in light of the different time periods stipulated under the Planning Act for filing a notice of appeal with respect to consent and variance decisions, the last day for appeal with respect to the two variance decisions was on November 1, 2023.
As such, in the absence of in-time appeals, the variance decisions became final and binding and the Secretary of the Committee only forwarded to the Toronto Local Appeal Body (the “Tribunal”), the consent decision appeal.
The Tribunal held a two day hearing on the consent appeal, in which it heard testimony from the Owner’s consulting planner, Franco Romano, and from a City staff planner, Julia Covelli.
In his witness statement, Mr. Romano, and Ms. Baker, the Owner’s counsel, in her opening submissions, summarized the Owner’s position by declaring that the Property is unique within the neighbourhood. It has lot size, configuration and orientation which do not reflect the prevailing patterns of the neighbourhood and vary from the local pattern. In their view, the proposed severance continues to maintain unique lot size, configuration and orientation of the Property.
Mr. Romano primarily rested his case on Section 4.1.9 of the City Official Plan (the “OP”), which sets criteria for development of properties which vary from the local pattern, and as such, concluded that the proposal conforms to the official plan, appropriately implementing the applicable policies, including the development criteria.
The City considered Section 4.1.9 inapplicable and relied on Section 4.1.5, which rests upon respecting and reinforcing what are referred to as prevailing development patterns.
In this instance, the Tribunal is of the view that the Owner’s case is the more convincing, that the decision of the Committee should be sustained and the appeal by the City consequently dismissed.
THE LEGISLATIVE AND POLICY FRAMEWORK
- Provincial Interest - Section 2, Planning Act
A decision of the Tribunal shall have regard to, among other matters, matters of provincial interest, enumerated as clauses (a) – (s) in Section 2 of the Planning Act.
- Provincial Policy – Section 3, Planning Act
A decision of the Tribunal must be consistent with the 2024 Provincial Planning Statement (‘PPS’)
- Consent – Section 53, Planning Act
The Tribunal 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).
SUMMARY OF EVIDENCE
The Tribunal heard the Owner’s case first. Mr. Franco Romano, a longstanding land use planner with Registered Professional Planner accreditation, was qualified to offer opinion evidence on land use planning matters in the proceeding. He had filed an expert witness statement and a responding expert witness statement prior to the hearing.
Mr. Romano provided background information on the area and the particulars of the proposed development. There was no disagreement by the City on the basic background elements.
The Official Plan designation for the Property is Neighbourhoods and the zoning is RD (Residential Detached), pursuant to Toronto Zoning By-law 569-2013 (the “Zoning By-law”).
The OP designation permits “residential uses in lower scale buildings such as detached houses, semi-detached houses, duplexes, triplexes and townhouses, as well as interspersed walk-up apartments that are no higher than four storeys.”
The Zoning By-law permits detached dwellings and multiplex dwellings (which include a duplex, a triplex and a fourplex). The RD zone category does not by label reference a semi-detached dwelling as a permitted use. However, Mr. Romano made clear that a semi-detached dwelling, in form, can be characterized as a duplex dwelling. The difference between the two is that the semi-detached dwelling has an ownership division line along the party wall.
The Property is a corner lot, configured in what Mr. Romano described as a dorsal-fin shape, with street exposure on all but one side. It essentially has only one side lot line, the west side lot line. The Exbury Road lot line dimension, if one follows it from its origin in the western side lot line along the arc of the line on Exbury Road as measured by the surveyor to a standard iron bar just north of its intersection with Tavistock Road is 34.3m. The Tavistock Road lot line dimension is 34.97m. Based upon the present language in the Zoning By-law either street line may be selected as the front lot line.
An aerial photo of the Property in its context is as illustrated here (the property at the northwest corner of Exbury Road and Tavistock Road with the large vacant side yard to the east):
The development proposal would result in a severance of the Property. The portion for which consent is being sought, which is referred to as ‘the conveyed parcel’ and set forth on the draft reference plan of survey as Part 2, is the more easterly pie-shaped portion. It would have a frontage of 13 m and an area of 435.76 m2. The portion referred to as ‘the retained portion’ and set forth on the draft reference plan of survey as Part 1, is the westerly portion which has a more conventional rectangular shape. It would have a frontage of 11.27 m on Exbury Road and an area of 389.33 m2.
The specific variance relief which was sought for the two parcels is as follows:
44 Exbury Road - PART 1
REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:
1.Chapter 10.20.40.10.(4)A), By-law No. 569-2013
The permitted maximum height is 7.2m.
The proposed height is 7.62m.
2.Chapter 10.20.40.70.(1), By-law No. 569-2013
The required minimum front yard setback is 9.0m.
The proposed front yard setback is 8.75m.
3.Chapter 10.20.30.10.(1)A), By-law No. 569-2013
The required minimum lot area is 550m2
The proposed lot area is 389.33m2.
4.Chapter 10.20.30.20.(1)A), By-law No. 569-2013
The required minimum lot frontage is 15m.
The proposed lot frontage is 11.27m.
5.Chapter 10.20.20.40.(1), By-law No. 569-2013
A dwelling unit is only permitted in a detached house.
The proposed dwelling unit is located in a semi-detached dwelling.
6.Chapter 10.5.80.40.(3)C), By-law No. 569-2013
In the Residential Zone category, vehicle access to a parking space on a lot must:
(C) in all other cases, may be from the street on which the lot fronts.
Proposed parking accessed from the rear.
7.Chapter 10.20.40.70.(2)A), By-law No. 569-2013
The required minimum rear yard setback is 8.64m.
The proposed rear yard setback is 7.50m.
8.Chapter 10.20.40.10.(40)C), By-law No. 569-2013
The permitted maximum number of storeys is 2 (two).
The proposed number of storeys is 3 (three).
9.Chapter 10.20.40.50.(1)B), By-law No. 569-2013
The permitted maximum area of each platform at or above the second storey of a detached house is 4.0m2.
The proposed rear area of each platform at or above the second storey is 14.87m2
44 Exbury Road - PART 2.
REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:
1.Chapter 10.20.40.10.(4)A), By-law No. 569-2013
The permitted maximum height is 7.2m.
The proposed height is 7.62m.
2.Chapter 10.20.40.70.(1), By-law No. 569-2013
The required minimum front yard setback is 9.0m.
The proposed front yard setback is 6.07m.
3.Chapter 10.20.40.70.(2)A), By-law No. 569-2013
The required minimum rear yard setback is 6.17m.
The proposed rear yard setback is 3.16m.
4.Chapter 10.20.30.10.(1)A), By-law No. 569-2013
The required minimum lot area is 550.m2
The proposed lot area is 435.76.m2
5.Chapter 10.20.30.20.(1)A), By-law No. 569-2013
The required minimum lot frontage is 15m.
The proposed lot frontage is 13.0m.
6.Chapter 10.20.20.40.(1), By-law No. 569-2013
A dwelling unit is only permitted in a detached house.
The proposed dwelling unit is located in a semi-detached dwelling.
7.Chapter 10.5.40.60.(6)A), By-law No. 569-2013
A bay window, or other window projection from a main wall of a building, which increases floor area or enclosed space and does not touch the ground, may encroach into a required front yard setback or rear yard setback a maximum of 0.75m, if the window projections in total do not occupy more than 65% of the width of the front main wall or rear main wall at each storey.
The proposed window encroaches 0.86m from the wall into the required front yard
setback.
8.Chapter 10.20.40.50.(1)B), By-law No. 569-2013
The permitted maximum area of each platform at or above the second storey of a detached house is 4.0m2.
The proposed rear area of each platform at or above the second storey is 11.43m2.
9.Chapter 10.5.80.40.(3)B), By-law No. 569-2013
Vehicle access to a parking space on a corner lot must be from a flanking street that is not a major street.
The proposed vehicle access to a parking space is from the rear.
10.Chapter 10.20.40.10.(4)C), By-law No. 569-2013
The permitted maximum number of storeys is 2 (two).
The proposed number of storeys is 3 (three).
As was noted above, these variances were approved by the Committee and as there was no in-time appeal, they have become final and binding.
As a practical matter, this has a very real and material consequence for the proposed consent. That is, the relevant and operative planning and built form standards have already been fixed and, as modified, are properly accounted for by the Tribunal in this proceeding.
Furthermore, as there are tests under Section 45 of the Planning Act relating to the grant of variance relief, the Tribunal in this proceeding can, and should, logically deduce that all of that variance relief is in keeping with the general intent and purpose of the OP and the Zoning By-law and is desirable for the development and use of the Property. This will be most pointed here with respect to the respective lot frontages and lot areas, and the permission to establish a semi-detached dwelling.
In keeping with the guidance found in Section 4.1.5 of the OP, both planners established a study area consisting of the broader geographical area and the narrower and more focused Immediate Context.
The geographical area delineated by Mr. Romano consisted of 271 lots. The geographical area delineated by Ms, Covelli consisted of 952 lots. The Immediate Context for each consisted of 29 lots on Exbury Road in the same block as the Property. All of these lots were similarly zoned as RD. The RD zone requires a minimum lot frontage of 15m and a minimum lot area of 550 m2
Mr, Romano asserted that the neighbourhood lot fabric consisted of modest to large lots in a diversity of lot shapes, ranging from rectangular to polygonal. He further advised that the Property is unlike any other lot in the neighbourhood study area, with its unique dorsal-fin shape, corner lot positioning and expansive street exposure wrapping around most of the lands. It is the only lot in the area that has a through lot exposure, touching both Exbury Road and Tavistock Road.
Furthermore, the Property is the largest lot in both the Immediate Context and in the broader Geographic areas, both in terms of lot frontage and lot area.
Based upon the data provided by both planners, it is clear that the majority of lots in the neighbourhood (96%) meet or exceed the Zoning By-law minimum frontage and lot area standards.
From this, Ms. Covelli takes the position that the undersized lots being proposed here depart from the prevailing condition in the neighbourhood and therefore offend the policy in Section 4.1.5 of the OP that new development, toward the goal of respecting and reinforcing the character of this neighbourhood, should be in keeping with the prevailing size and configuration of lots in this neighbourhood,
It seemed to the Tribunal that Ms, Covelli’s analysis proceeded from a purely quantitative analysis and took no particular account of the variations which are now present in this community and how they presented to the street.
By contrast, Mr. Romano relied upon the policy in Section 4.1.9 of the OP, which declares as follows:
“In established Neighbourhoods, infill development on properties that vary from the local pattern in terms of lot size, configuration and/or orientation will:
a) have heights, massing and scale that are respectful of those permitted by zoning for nearby residential properties, while taking into account the existing form of development on the infill property;
b) have setbacks from adjacent residential properties and public streets that are proportionate to those permitted by zoning for adjacent residential properties, while taking into account the existing form of development on the infill property;
c) provide adequate privacy, sunlight and sky views for occupants of new and existing buildings by ensuring adequate distance and separation between building walls and using landscaping, planting and fencing to enhance privacy where needed;
d) front onto existing or newly created public streets wherever possible, with no gates limiting public access;
e) provide safe, accessible pedestrian walkways from public streets; and
f) locate, screen and wherever possible enclose service areas and garbage storage and parking, including access to any underground parking, so as to minimize the impact on existing and new streets and on residences.”
There is a preamble to this policy in Section 4.1 which says that “Scattered throughout many Neighbourhoods are properties that differ from the prevailing patterns of lot size, configuration and orientation”. It then goes on to say that “special infill criteria are provided for dealing with the integration of new development for these sites”. Mr. Romano identifies the guidelines in Policy 4.1.9 as these special infill criteria and that the OP should be read to treat these guidelines as controlling for those properties which vary from the neighbourhood pattern.
Mr. Romano is adamant that the Property most definitely varies from the neighbourhood pattern and that the proposal here should thus be considered from the perspective of whether the considerations in Policy 4.1.9 are being met, which he says they are.
In his witness statement he took the position that it was sufficient to judge OP conformity on this appeal by reference to Policy 4.1.9. He says this in his witness statement: “Policy 4.1.9 of the official plan requires only one of lot size, configuration and orientation to be present for this policy to be determinative of the proposal with respect to the development criteria. Policy 4.1.9 excludes the Subject Site from having to satisfy all development criteria in Policy 4.1.5.” However, in his witness statement, he nevertheless went on, and in his oral testimony at the hearing, he seemed to hedge his bet somewhat by addressing Policy 4.1.5 and suggesting that the proposal nonetheless was in conformity with it.
Mr. Dexter, counsel for the City, took issue with this approach in that, in his view, the criteria in Policy 4.1.9 essentially addressed built form matters and did not directly speak to lot creation whereas Policy 4.1.5 directly spoke to lot creation and that the undersized nature of the lots proposed here could not be said to reflect the prevailing pattern.
It should further be noted that Ms. Covelli did not accept the proposition that the proposal here represented infill development. In response to her position, Mr, Romano explained that infill development is development which takes advantage of underutilized or vacant land. He pointed out that the Zoning By-law in the RD zone permits lot coverage up to 35%. The Property, as presently developed, represents 11% coverage, thereby constituting an underutilized parcel of land. As such, the proposed development here can fairly be characterized as infill development. This then does draw the proposal into the purview of Policy 4.1.9.
Ms. Covelli also raised the issue of precedent, that approval of these two lots with lesser frontages and areas than prescribed by the Zoning By-law against the broad compliance (96%) of the other lots in this neighbourhood would set the stage for further lot division applications to create undersized lots.
Mr. Romano tackled this prospect definitively by confirming that there were no other lots in the broad neighbourhood which had frontages and areas that, upon a proposed severance, would even come close to yielding frontages and areas similar to those of the lots proposed here.
Both planners spoke to Provincial planning policy and both were of the view that there was not an issue as to lack of consistency with that policy based on this proposal. In fact, the evidence effectively disclosed that the proposal would represent a more efficient use of this parcel of land and the community infrastructure serving it as well as providing additional housing, in keeping with Provincial policy encouragement.
ISSUES AND ANALYSIS
The Tribunal in this instance is persuaded by Mr. Romano that the Property is definitely unique in this neighbourhood. It is the largest lot in the entire area and it is of a shape that is distinct from any other lot in the neighbourhood. As a result of its extensive frontages and its area, it is obvious how the Owner would have seen this as a candidate for severance.
As such, the Tribunal here inclines to the view that the controlling policy in the OP would be Policy 4.1.9 and that the analysis by Mr. Romano as to how the proposal conforms with the criteria set out therein is accepted by the Tribunal.
The other matter which is of material note is that the proposed structure would be characterized as a duplex under the Zoning By-law, and therefore a permitted building type, but for the fact that it is intended to be under split ownership and is therefore treated by the zoning examiners as a semi-detached building. That is, the built form is contemplated by both the OP and the Zoning By-law.
The Committee has directly and fully addressed this issue by permitting the structure to be a semi-detached dwelling. In order to fulfill that outcome, a consent is necessary and the Tribunal here finds that it is appropriate and meets the criteria to which the Tribunal is to have regard as set forth in Section 51(24) of the Planning Act, all of which was addressed in the evidence provided by Mr. Romano.
The Tribunal here treats the admonition in the preface to Policy 4.1.5, that “physical changes to our established Neighbourhoods must be sensitive, gradual and “fit” the existing physical character” as clearly stating the goal of the OP.
The Property in its present state is something of an outlier in the neighbourhood and developed as proposed may continue to have that status but the Tribunal does not see any basis to conclude that the new development will not “fit” this neighbourhood.
The Tribunal here will articulate an observation which this panel made in the 2022 decision regarding 251 Old Forest Hill Road. The process of OP interpretation and application of its policies is not simply an arithmetic exercise but rather, guided by the expressed objectives, one informed by context and anchored in the perception of the proposal and a sense of the reasonableness of the outcome from the street. The Tribunal must step into the subjective view of a pedestrian observer, bearing in mind all of the factors.
Needless to say, the application of policies may not always be clear in atypical circumstances and it is often the case that policies which may superficially appear to conflict have to be reconciled. In the instance of this appeal, the Tribunal has had to engage in some policy reconciliation. Based upon the relevant policies of the OP and upon all of the evidence as adduced in this proceeding, the Tribunal here does not view the proposal as failing to respect the character of the neighbourhood, which is an overriding OP goal,
CONCLUSION
For the reasons expressed above, the Tribunal finds that the consent approved by the Committee is appropriate and fully has regard for and meets the criteria set out in Section 51(24) of the Planning Act.
Mr. Romano had suggested a minor amendment to the conditions imposed by the Committee relating to tree preservation measures but from the filed material, the Tribunal is aware that the Committee fully dealt with these issues through the conditions which were imposed by the Committee on the variance approvals.
Mr. Romano was also concerned with the amount of time that the Owner would have to satisfy those consent conditions as he believed that the stipulated two years ran from the date of the Committee consent approval decision.
However, it was the view of the Tribunal that the two year time to satisfy conditions where there has been an appeal shifts from the date of the Committee decision to the date of the Order of this Tribunal’s disposition of the appeal, whether that disposition is a dismissal of the appeal or an allowance of it. This is set forth in Section 53 (41) of the Planning Act. Ms. Baker considered the cited statutory provision and concurred in the Tribunal’s statement.
As the Tribunal is satisfied that the consent decision should not be altered and that there is no need to modify any of the conditions which were imposed on the grant of the provisional consent, the appeal here will be dismissed.
DECISION AND ORDER
- The Tribunal ORDERS THAT the appeal of the consent decision by City of Toronto is dismissed.
G. Swinkin
Panel Member