Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-01-08

24 117543 S53 18 TLAB

24 117540 S45 18 TLAB

24 117542 S45 18 TLAB

Talebi (Re), 2025 ONTLAB 294

DECISION AND ORDER

Issuance Date:

January 8, 2025

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):

SAEID TALEBI

Applicant(s):

MEMAR ARCHITECTS INC

Property Address:

30 Lawnview Dr.

COA File No.:

23 197887 NNY 18 CO (B0028/23NY)

23 197889 NNY 18 MV (A0485/23NY)

23 197890 NNY 18 MV (A0486/23NY)

TLAB Case File No.:

24 117543 S53 18 TLAB

24 117540 S45 18 TLAB

24 117542 S45 18 TLAB

Hearing Date(s):

October 22, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member C. Wong

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

MEMAR ARCHITECTS INC

Appellant

S. TALEBI

M. MAZIERSKI

INTRODUCTION AND CONTEXT

1Saeid Talebi, the Applicant/Owner (“Applicant”) of 30 Lawnview Drive (the “Subject Property) wishes to demolish the existing bungalow dwelling, sever the property into two residential lots, and construct two new two-storey buildings each with an enclosed garage (the “proposal”).

2The property exists in a low-rise residential neighborhood. It is zoned Residential Detached (“RD”) under City of Toronto Zoning By-law 569-2013 (“By-law 569-2013”).

3At the Committee of Adjustment (“COA”), the Applicant applied for a consent to sever the property into two residential lots, with application numbers which were considered jointly:

CONVEYED - PART 1

The lot frontage is 11.155m and has a lot area of 400.49m².

The property will be redeveloped as the site of a new detached dwelling, requiring variances to the Zoning By-law(s), as outlined in application # A0485/23NY.

RETAINED - PART 2

The lot frontage is 11.155m and has a lot area of 398.97m².

The property will be redeveloped as the site of a new detached dwelling, requiring variances to the Zoning By-law(s), as outlined in application # A0486/23NY.

4At the COA, the Applicant also applied for the following variances for Part 1 and Part 2 of the property, respectively:

1.Chapter 10.20.30.10.(1)(A), By-law No. 569-2013

The required minimum lot area is 550m².

Part 1: The proposed lot area is 400.49m².

Part 2: The proposed lot area is 398.97m².

2. Chapter 10.20.30.20.(1)(A), By-law No. 569-2013

The required minimum lot frontage is 15 metres.

Part 1: The proposed lot frontage is 11.16 metres.

Part 2: The proposed lot frontage is 11.15 metres.

3. Chapter 10.20.40.10.(2), By-law No. 569-2013

The maximum permitted height of all side exterior main walls facing a side lot line is 7.50m.

Part 1: The proposed height of the north side exterior main walls facing a side lot line is 7.9 metres. The proposed height of the south side exterior main walls facing a side lot line is 7.9 metres.

Part 2: The proposed height of the north side exterior main walls facing a side lot line is 8.05 metres. The proposed height of the south side exterior main walls facing a side lot line is 8.05 metres.

4. Chapter 10.20.30.40.(1), By-law No. 569-2013

The maximum permitted lot coverage is 30.00% of the lot area.

Part 1: The proposed lot coverage is 31.98% of the lot area.

Part 2: The proposed lot coverage is 32.08% of the lot area.

5. Chapter 900.3.10.(5), By-law No. 569-2013

The minimum required side yard setback is 1.80m.

Part 1: The proposed north side yard setback is 1.2m.

Part 2: The proposed north side yard setback is 1.2m.

6. Chapter 900.3.10.(5), By-law No. 569-2013

The minimum required side yard setback is 1.80m.

Part 1: The proposed south side yard setback is 1.2m.

Part 2: The proposed south side yard setback is 1.2m.

5On February 1, 2024, the COA refused to grant the consent to sever and refused the variances.

6On February 21, 2024, the Applicant appealed to the Toronto Local Appeal Body (“TLAB”).

7A TLAB Hearing was scheduled for June 5, 2024.

8On April 17, 2024 (one month after the deadline for Applicant Disclosure), the Applicant submitted revised Architectural plans, eliminating the wall height variance requests, to TLAB.

9Following the late submission of the Applicant’s Disclosure, Witness Statement, and supporting materials, the Applicant’s Legal Representative, Mr. Mazierski, and Planning Expert, Mr. Palumbo, attended the scheduled June 5, 2024, TLAB Hearing.

10At the June 5^th^ TLAB Hearing, the presiding Member directed the Applicant to file a written motion requesting the admission of the late-filed materials and a request for an adjournment to hear the evidence on a subsequent TLAB Hearing date.

11Based on medical situation of the Planning Expert, the presiding Member granted the motion (2024 ONTLAB 242).

12TLAB scheduled a new Hearing for October 22, 2024, which Mr. Mazierski and Mr. Palumbo attended for the Applicant.

13At the October 22^nd^ TLAB Hearing, the Applicant requested variances as follows:

1. Chapter 10.20.30.10.(1), By-law No. 569-2013

The required minimum lot area is 550m².

Part 1. The proposed lot area is 400.49m².

Part 2. The proposed lot area is 398.97m².

2. Chapter 10.20.30.20.(1), By-law No. 569-2013

The required minimum lot frontage is 15 metres.

Part 1. The proposed lot frontage is 11.16 metres.

Part 2. The proposed lot frontage is 11.15 metres.

3. Chapter 10.20.30.40.(1), By-law No. 569-2013

The permitted maximum lot coverage is 30 percent of the lot area.

Part 1. The proposed lot coverage is 31.98 percent of the lot area.

Part 2. The proposed lot coverage is 32.08 percent of the lot area.

4. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setbacks are 1.8m on each side.

For Parts 1 & 2, the proposed north side yard setback and the proposed south side yard setback are 1.2m.

THE LEGISLATIVE AND POLICY FRAMEWORK

14Provincial Interest – Planning Act, 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 (“Act”).

15Provincial Policy – Planning Act, 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 – Planning Act, 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).

17Variance – Planning Act, 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

18Exhibit 1 – Form 3 (Applicant Disclosure)

19Exhibit 2 – Form 6 (Expert Witness Statement)

20Exhibit 3 – Applicant Disclosure, Decision Table

21Exhibit 4 – COA Revised Plans, Refused

22Exhibit 5 – Arborist Report

23Exhibit 6 – Survey

ISSUES

[24]

I) Consent to Sever

a) Does the proposal meet the requirements of Planning Act s.53(1)?

b) Does the proposal meet the requirements of Planning Act s.51(24)?

[25]

II) Minor Variances

If the proposal meets the requirements for a grant to sever, does it meet the requirements of Planning Act s.45(1)? Specifically, do I find that the requested variances:

a) maintain the general intent and purpose of the Official Plan;

b) maintain the general intent and purpose of the Zoning By-laws;

c) are desirable for the appropriate development or use of the land; and

d) are minor ?

ANALYSIS

I. Consent to Sever

a) S.53(1)

26I 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.

II. Consent to Sever and Minor Variances

b) Planning Act s.51(24)

27In addressing consent to sever, of the criteria set out in s. 51(24) of the Planning Act, I consider criteria (c) and (f) to warrant further discussion in this Decision:

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; and

(f) the dimensions and shapes of the proposed lots.

Official Plan

28As the Official Plan contains policy about the dimensions and shapes of lots, I fold consideration of both criteria c) and f) above into the following discussion of the Official Plan, the general intent and purpose of which is the first test for the approval of variances under s. 45(1) of the Planning Act.

29Although Mr. Palumbo provided tables of City of Toronto (“City”) data in Exhibit 2 and Exhibit 3, he did not provide an analysis of the proposed lot area and lot frontage in the context of what is prevailing or substantially occurring in the broader and immediate neighbourhoods.

30Mr. Palumbo defined a larger broader geographic context, specifically from:

• Finch Avenue East (major arterial) – north;

• Bayview Avenue (major arterial) – east;

• Empress Avenue (10-minute walk from Subject Site) – south; and

• Willowdale Avenue (minor arterial) – west.

31Mr. Palumbo did not explain his rationale or method for choosing this geographic context or compare it to other potential ways to define geographic context. However, within his broader geographic neighborhood, he determined that there is large variation, including a mix of modern and traditional dwellings and that the neighborhood is “gradually evolving”.

Lot Frontage

32Although Official Plan Policy 4.1.5 allows for gradual evolution and for physical characteristics which are not the most frequently occurring, they must “exist in substantial numbers” within the broader geographic neighborhood and must “already have a significant presence on the properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighborhood.” According to Policy 4.1, “new development must respect and reinforce the general physical patterns in a Neighbourhood”. In the broader context, however, Mr. Palumbo’s evidence did not demonstrate how the Applicant’s proposed lot frontages are prevailing or substantially occurring.

33Mr. Palumbo’s table of City data (“Current Land and Structure Data” Exhibit 2, pages 144 - 163) did not show how the proposed lot frontages are substantially occurring in the neighbourhood. Specifically, in his evidence, Mr. Palumbo did not identify the total number of lots in the study area or enumerate which ones had lot frontages comparable to the proposed. He did not explain where substantially occurring lot frontages are in the study area, or account for any differences between the proposed lot frontages and what is prevailing or substantially occurring.

34Without describing what constitutes prevailing or substantially occurring in the City’s frontage data he presented (Exhibit 2, pages 144 - 163), Mr. Palumbo relied heavily on a Photo Inventory and Lot Frontage maps from the broader neighbourhood in his evidence. He identified 71 properties in this Photo Inventory (Exhibit 2, pages 70-143), which show “narrower” lots beside “wider” lot frontages in the broader context, but did not explain how the proposed lot frontages are either prevailing or substantially occurring. It is unclear what the total number of properties in the broader geographic area are, to compare to the 71 properties he identified. In addition, although the Photo Inventory shows variation in lot frontages, most of the narrower lot frontages are still wider than what is being proposed.

35As well, although Mr. Palumbo identified 11 consent applications approved in in broader neighborhood, he did not explain the similarities or differences to the proposal.

36Further, in the immediate context, although there is a mix of lot frontages, the proposal would make the subject site contain the smallest numerical frontages on all the lots of Lawnview Drive. To reinforce and respect the neighbourhood's character, a development need not exist in the most substantial or most frequently occurring numbers, but it must be materially consistent with what is prevailing and substantially occurring where there is a mix of physical characteristics. Thus, although a proposed lot frontage need not be the most frequently occurring, it must at least be materially consistent with the physical character and already have a significant presence on properties located in the immediate context. In this case, the proposed lot frontages are not the most frequently occurring, nor prevailing or even substantially occurring in the immediate context. Rather they are outside what currently exists.

37Although there are several properties with lot frontages below the By-law requirement (15m), these properties are located in the bulb of the cul-de-sac, and on the opposite (East) side of the road to the Subject Property (Exhibit 2 page 52). On the side west side of the road, where the Subject Property is located, there are no frontages below 16.5m.

38The existence of other properties with lot frontage which are below the By-law requirement, but which are not immediately adjacent and which are still larger than what is proposed, is not justification for the lot frontages proposed. (The By-law standard is not set as an ideal but constitutes the threshold at which an application for a variance is required. The variance must still meet the intent of the policy – i.e. the existing physical character).

39The general intent of Official Plan Policy 4.1.5 is to maintain the existing physical character of the neighbourhood. Thus, while some frontages less than the minimum lot frontage standard in the By-law exist, there are no properties anywhere on Lawnview Drive with frontages below the proposed 11.15m or 11.16m. Since none of the below-standard frontages that have been approved are as small as what is being proposed in the immediate context and have not been established as substantially occurring in the broader context, the proposal does not support the neighborhood’s existing character, as required by the Official Plan.

Lot Area

40Although Mr. Palumbo included lot area in the Current Land and Structure data table (Exhibit 2, pages 144 – 163), his evidence did not establish what lot area is prevailing or substantially occurring of the geographic neighbourhood to respect and reinforce its physical character, according to Official Plan Policy 4.1.5.

41Mr. Palumbo demonstrated that, in the immediate context, the proposal would look similar in built form and streetscape (with a two-story building and an enclosed garage beside a bungalow) to 21 Lawnview Drive and 19 Lawnview Drive (Exhibit 2, page 124, Photo 53). This, however, does not address whether the proposal respects and reinforces the prevailing or substantially occurring lot area and frontage and does not address the concerns of both the Official Plan and of Planning Act, s.52(24) regarding the dimensions and shapes of the lots.

42Mr. Palumbo did not demonstrate how the lot shape and dimensions of the proposal would respect and reinforce the prevailing or substantially occurring lot shape and dimensions of the immediate or broader context.

43The proposal does not meet the general intent and purpose of the Official Plan and therefore in addition does not meet the test of Planning Act s. 51(24) respecting the Official Plan and consideration of dimensions and shapes of lots.

44Thus, the proposal does not meet the criteria for approval of the severance.

II. Minor Variances

45I refuse the consent to sever, so the request for variances is moot. Thus, I include only a brief analysis of the variances, below.

a) Official Plan

46See above analysis.

b) Zoning By-laws

Maximum Lot Frontage and Lot Area

47Mr. Palumbo advised that the “general intent and purpose of both the minimum lot frontage and minimum lot area regulations are to maintain some level of control over the size, scale and configuration of the overall lot fabric of the neighborhood, as these two regulations go hand-in-hand in this respect, with the intent to ultimately implement the policies of the Official Plan relative to physical character of the neighbourhood. In addition, lot frontage and lot area are both contributing factors with respect to the type/size/scale of dwelling that may be constructed on a lot, in an effort to provide appropriate and compatible dwellings that maintain the character of the neighbourhood in which they are being built” (Exhibit 2, page 23).

48The challenge for the Applicant is that they wish to construct buildings that maintain the character of the area on lots that are smaller than any in the nearby area. The character of the neighbourhood is not defined solely by the built structures, but also the patterns and spacing between them. This is why the criteria in Official Plan Policy 4.1.5 includes considerations of the setbacks from streets, as well as prevailing patterns of setbacks and landscaped open space.

49For the same reasons outlined in the previous paragraphs regarding the Official Plan, I find that the variances for lot frontage and lot area do not maintain the general intent and purpose of the Zoning By-law.

Maximum Lot Coverage

50Mr. Palumbo advised that “The general intent and purpose of the maximum lot coverage regulation is to maintain some level of control over the impervious surface area of a property (i.e. building footprints of both the main building, and accessory buildings/structures), in order to ensure sufficient drainage (via the presence of pervious surfaces), as well as sufficient outdoor amenity area” (Exhibit 2, pages 25 - 26).

51In this case, a variance for side-yard setback puts more pressure on the building footprint and envelope consideration. On its own, the maximum lot coverage increase of 2% is not significant and does meet the intent and purpose of the By-law, but overall, in combination with the side-yard variance, is more concerning.

52I find that the variance for lot coverage does not maintain the general intent and purpose of the Zoning By-law.

Minimum Side-yard Setback

53Mr. Palumbo provided that “The general intent and purpose of the side yard setback regulation is to ensure sufficient spacing between buildings, in order to both minimize the impacts of crowding and overlook, and to also ensure sufficient access to the rear yards (for leisure or maintenance purposes), with the ultimate intent to implement the Official Plan as it relates to the physical character of the street” (Exhibit 2, page 24).

54Mr. Palumbo explained that the side-yard setbacks will widen as the dwelling gets deeper, which will lessen the impact on the adjacent dwellings. Although the widening at the rear of the buildings by 29cm, will help to reduce the impact of crowding, this does not address the issue of access to the rear yard from the front yard, which will still be limited.

55Mr. Palumbo asserted that the side-yard setback reduction of 60cm would be imperceptible when viewing the streetscape. I do not accept this assertion. The variances would increase the impact of the Subject Property’s built form on adjacent dwellings and make noticeable changes seen from the street.

56In asserting that the variances meet the intent and purpose the By-law, Mr. Palumbo again referred to photo evidence of other substandard side-yard setbacks. This evidence does not illustrate how the proposal will minimize crowding and overlook as required.

57Side-yard setback variances to accommodate the increased floorspace on undersized lots would not ‘reduce’ the impact on the neighbourhood, especially the immediately adjacent neighbours. The variances requested do not to satisfy the general intent and purpose of the Zoning By-law’s side-yard setback provision.

c) Desirable for the Appropriate Development of Land

58The Applicant’s proposal would result in two new detached dwellings in a manner that does not respect or reinforce the neighborhood’s character. I find the variances are not desirable.

d) Minor

59No neighbours gave any evidence of the potential adverse impacts of the proposal.

CONCLUSION

60In this case, I find that the Applicant has not provided sufficient evidence to support their proposal for a consent to sever.

61I do not consent for land to be severed.

62I do not grant the proposed variances.

DECISION AND ORDER

63The application is refused. The COA decision is upheld.

C. Wong

Panel Member