2675804 Ontario Inc (Re), 2025 ONTLAB 303

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-02-10

24 215632 S45 12 TLAB

2675804 Ontario Inc (Re), 2025 ONTLAB 303

Issuance Date:

February 10, 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):

2675804 ONTARIO INC

Applicant(s):

Property Address:

258 WARREN RD

COA File No.:

24 171947 STE 12 MV (A0586/24TEY)

TLAB Case File No.:

24 215632 S45 12 TLAB

Hearing Date(s):

January 20, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member B. Mullock

People Type

First Initial. Last Name

Representative

Applicant

Appellant

2675804 ONTARIO INC

INTRODUCTION AND CONTEXT

1On September 10, 2024, the Toronto and East York Panel of the City of Toronto (City) Committee of Adjustment (COA) refused four (4) variances to alter the dwelling at 258 Warren Road (subject property).

2The Applicant, 2675804 Ontario Inc, had proposed to alter the existing two-and-one-half-storey dwelling, by constructing a two-storey south side addition with a covered terrace, and a rear partial second-storey addition. The property is on the west side of Warren Road, south of Kilbarry Road in the Forest Hill South neighbourhood.

32675804 Ontario Inc appealed the COA’s decision to the Toronto Local Appeal Body (TLAB), which heard the Appeal matter on January 20, 2025.

4What is at issue before the TLAB is this: Do the four variances which were required by Zoning in order to approve the proposal, meet the Four Tests set out in the Planning Act?

The Background

5A previous COA minor variance application relating to the property was approved in November 2006. It involved demolition of the existing detached dwelling and construction of a new three-storey detached dwelling. That COA approval was subsequently appealed by immediate neighbours to the OMB (now OLT). A settlement was reached, which eliminated a one-storey protrusion at the rear. In April 2007, the variances were approved by the OLT. That approval allowed for variances to GFA, front yard setback, north and south side yard setbacks, and an integrated below grade garage.

6The existing dwelling reflects the variances allowed in the 2007 OLT decision.

7The Appellant now wishes to expand the dwelling by constructing a two-storey south side addition with a covered terrace, and a rear partial second storey addition.

8The obligation is on the Appellant to demonstrate to the decision maker that the four tests of Section 45(1) are met.

The Property

9The property is designated Neighbourhoods on Map 17 of the City Official Plan (OP) and zoned Residential Detached (RD) under city-wide Zoning By-law 569-2013.

The Neighbourhood Context

10The surrounding area consists of low density, single detached residential development. The geographic neighbourhood is zoned RD. It contains large residential dwellings of up to three storeys. Many include rear yard amenities, such as decks and pools.

The Redevelopment Proposal

11The relief sought from the provisions of the Zoning By-law requests four (4) variances in total. They involve variances to length, depth, FSI and to both north and south side yard setbacks, as follows:

Chapter 10.20.40.20.(1), By-law 569-2013 The maximum permitted building length is 17 m. The altered dwelling will have a length of 28.25 m.
Chapter 10.20.40.30.(1), By-law 569-2013 The maximum permitted building depth is 19 m. The altered dwelling will have a depth of 28.87 m
Chapter 10.20.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (499.21 m2). The altered dwelling will have a floor space index equal to 0.85 times the area of the lot (1,214.78 m2).
Chapter 10.20.40.70.(3)(E), By-law 569-2013 The minimum required side yard setback is 1.8 m. The altered dwelling will be located 1.57 m from the side (north) and 1.51 m from the side (south) lot lines.

THE LEGISLATIVE AND POLICY FRAMEWORK

12Provincial Interest - S. 2

A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

13Provincial Policy – S. 3

A Decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2024 Provincial Planning Statement for the subject area.

14Variance – 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

15I have reviewed all of the evidence and testimony related to this matter. The following summary of evidence is included to provide context for the Decision. If any point of evidence appears to have been omitted in this summary, its omission should not be taken to mean that such evidence was not considered. It indicates, rather, that I determined the recitation of such evidence was not material to my reasoning, which is outlined in the Issues and Analysis section.

16I have made a site visit to the subject site’s immediate context area and have walked in the surrounding area.

17At the Hearing, David Bronskill was identified as the Appellant’s Legal Representative.

18Mr. Bronskill informed the tribunal that consultation with the immediate neighbours to both the north and south had taken place.

19Mr. Bronskill called Ryan Guetter as witness. Mr. Guetter is a land development consultant, who had been retained by the Appellant. Mr. Guetter had filed an Expert Witness Statement by the requisite due date in the Notice of Hearing.

20Mr. Guetter is a Registered Professional Planner (RPP), with over 20 years of experience in land development activities. He has appeared before TLAB to provide expert opinion in the past. The tribunal qualified him to provide expert opinion evidence in the area of land use planning and development.

21Mr. Guetter reviewed the appeal in the light of the Official Plan, the Zoning By-law and the other two statutory tests. He provided background information on the area and on the detail of the proposal.

22It was the witness’s opinion that the order of magnitude of the variances sought is consistent with those approved and occurring in the geographic neighbourhood. To inform comparison, he made reference to the photographic and chart-summarized detail included in his Witness Statement.

23He referred to the TAB 28 item from the Disclosure, “Previous Minor Variance Decisions Chart”, which summarized variance detail from COA approvals in the geographic neighbourhood.

24Mr. Guetter established the range of existing FSI’s within the geographic neighbourhood.

25The witness opines that, so many COA applications regarding properties in the geographic neighbourhood have been allowed over the years, with variances similar to, or even greater than, those requested, that the prevailing character has actually changed. In his opinion, that character now reflects variances of this order.

26He noted that the City of Toronto’s Community Planning staff had provided no commenting memorandum, either to the Committee of Adjustment or to TLAB; nor had the City sought status at either Hearing.

27Further, Mr. Guetter observed that there were no letters of objection or persons speaking in opposition, once again, either at COA or at TLAB.

28The witness noted that no shadow impact would be created on 254 Warren Road by the addition, since the subject property lies to the north of 254 Warren Road.

29Mr. Guetter submitted that the proposed massing of the dwelling is similar to redevelopment, both existing and recently approved, to dwellings in the geographic neighbourhood.

30The witness gave evidence to the effect that within the geographic neighbourhood, there exist many examples of approved variances for length, depth, FSI and side yard setback of greater magnitude than those requested.

ISSUES AND ANALYSIS

31The questions before the tribunal are these: Do the variances proposed meet the four tests of the Planning Act? Do they maintain the general intent and purpose of the Official Plan and the Zoning By-law? Are they Minor and Desirable?

32In my finding, Variance 3 for FSI lies at the heart of this application. Would the proposed FSI variance give rise to inappropriate adverse impacts? At 0.85 times coverage, where only .35 is permitted, appears to be numerically significant. Is it also significant with respect to the adverse impacts it would create?

33I find that Mr. Guetter fulfilled the role of independent expert fairly and objectively before the tribunal.

34OFFICIAL PLAN – I accepted the witness’s opinion evidence that, with its deliberate orientation of partial second storey massing to the centre of the dwelling’s rear, the design provides for appropriate single-storey transitions to the properties to the north and the south. This sensitivity to scaling and GFA placement serves to minimize adverse impact to adjacent properties.

35In my finding, the proposal does respect and reinforce the context of the neighbourhood. I find the variances proposed to be consistent with variances regularly approved over roughly the past fifteen years and recently approved, both across the geographic neighbourhood and in the immediate context.

36As a result, I find that the variances proposed also generally reflect existing conditions on many properties across the geographic neighbourhood and in the immediate context.

37In my finding, existing trees will be secure and trees will not be removed. The mature trees and vegetation along the lot lines will therefore be maintained, and with them, the existing privacy buffer to which they contribute.

38I accept the evidence that the footprint of the addition does not impact landscaping in the rear space, since no new protrusion into the rear yard is proposed.

39I find that there will be little, if any, impact on the streetscape of Warren Road. The bulk of the new density is located either at the rear or toward the rear of the south side. It will scarcely be visible from the street.

40I note, importantly, that no height variance is proposed. Height considerations, therefore, do not complicate the tribunal’s consideration of massing.

41I find that the proposal is consistent with the existing housing form predominant in the geographic neighbourhood and the immediate context.

42I accept the evidence given, to the effect that the side yard setbacks proposed would still provide for appropriate separation between the subject property and the dwellings to the north and to the south.

43In my finding, therefore, the proposed variances meet the general intent and purpose of the Official Plan.

44ZONING - Building Length and Depth – The lot has a depth of 52.73 m. With such a generous depth, I find that the lot is able to accommodate the proposed length and depth. Of note, the length and depth variances both nearly match the existing condition.

45Of note also, the proposed length and depth variances do not trigger a rear yard setback variance.

46It should be pointed out, however, that the existing condition is at terrace level. As such, it presents little elevation (1.12m).

47The proposal does call for elevation, two storeys in height. However, there is no GFA at the second storey level. The GFA is at the first storey level with a two storey high ceiling. Hence, there is no opportunity for overlook.

48I accept the expert witness’s opinion evidence, that significant adverse overlook impacts are not created on adjacent properties by the length and depth proposed.

49I accept the expert witness’s evidence to the effect that there are in the order of 50 properties in the geographic neighbourhood, including in the immediate context, with lengths similar to or in excess of that proposed. These are mostly as a result of approved variances. As noted by the witness, several of these approvals allow dramatically greater lengths. In my finding, lengths and depths of the magnitude requested have become common in the geographic neighbourhood.

50I accept the expert witness’s opinion evidence that the length and depth variances proposed will not give rise to inappropriate massing. Further, I find that the length and depth variances respect the general intent and purpose of the Zoning By-law.

51Floor Space Index – I noted the witness’s evidence that nearby, within the immediate context, there are five properties with greater density than that proposed.

52I accept the witness’s opinion evidence that the deliberate confining of the largest part of the additional GFA - a full 73% of it - to the first storey level, serves to maintain the Zoning By-law’s intent of controlling massing.

53North and South Side Yard Setbacks – I accept the witness’s evidence that the general intent and purpose of the Zoning By-law is maintained with respect to the side yard setbacks proposed. In my finding, appropriate separations are maintained between the Subject Property and the dwellings to the north and south, and an appropriate interface and setback relationship is maintained overall.

54On the north side, I accept the evidence that the proposed side yard setback of 1.57m is only 0.03 m less than the existing 1.54m, which had been allowed by the OLT in 2007. Further, the 1.57 setback would apply to the first storey only. By comparison, the proposed second storey is set back substantially further, at 8.19m. In my finding, the north variance proposed is small, and the second storey’s centre positioning succeeds in mitigating impact to the north.

55With respect to the south side, I accept the witness’s evidence that the 1.51m proposed setback satisfies the performance standard. It applies, not to the entire south side wall, but to a portion 7.57m in length, located towards the rear and well in from the street.

56I accepted the evidence that, in the immediate context of Warren Road, reduced side yard setbacks have become common.

57I accept the opinion evidence given, that the setbacks requested do not give rise to inappropriate positioning of the new GFA on the lot, relative to the adjacent dwellings.

58I accept the witness’s evidence to the effect that the .85 FSI proposed compares reasonably with that of other dwellings, within both the immediate context and the Geographic neighbourhood. I find that the general purpose and intent of the Zoning By-law is maintained to the extent that a strict imposition of FSI is not required.

59MINOR – I accept the witness’s opinion that the variances sought are minor, in terms of their massing impact. I find they do not give rise to undue adverse impacts on the detached properties to either the south or to the north.

60In considering the test of “minor”, I accept the witness’s evidence that consideration be given to the degree of impact created on neighbouring properties, and specifically on unacceptable adverse impact, rather than simply on an arithmetic calculation. I find that the variances sought do not give rise to unacceptable adverse impact on the detached property to the south, 254 Warren Road, or to other property to the north.

61I accept the witness’s expert opinion that the order of magnitude of the variances sought is consistent with those approved and occurring in the neighbourhood. In my finding, the photographic and chart-summarized detail presented, as drawn from the Witness Statement, bears out this conclusion.

62I agree with the evidence presented, that no undue adverse impacts will be created on the adjacent properties, since the proposed new massing rises from the existing stone deck, with a full 73% of new GFA located at the first storey level.

63In my consideration of the proposed FSI at .85 times coverage, where FSI at .35 is permitted, I approached the evidence from both quantitative and qualitative viewpoints,

64I accepted the witness’s evidence that the .74 FSI allowed by the OLT in 2007 has performed satisfactorily in the immediate context over the ensuing years. In the absence of undue adverse impacts to adjacent properties, the proposed FSI of .85 is a reasonable increase beyond .74. Further, .85 times coverage falls within the range, both recently allowed and existing, in the geographic neighbourhood. Of itself, .85 is not precedent setting.

65I accept the evidence that the side yard setbacks proposed generally reflect an existing condition. They are not intended to further reduce the setbacks which exist and which were approved in 2007 by the OLT.

66I agree with the evidence presented that the impacts of the proposed side yard setbacks are adequately controlled, in that they apply only to rear portions of the side walls, not to their full length.

67I agree with the opinion evidence to the effect that, by maintaining the tall, mature vegetation along the south property line, combined with there being no sidewall windows in the second storey closet, no undue overlook issues to the south will be created.

68I accept Mr. Guetter’s expert opinion evidence that the proposal, with its deliberate orientation of partial second floor massing to the centre of the rear, provides an appropriate transition to the properties to the south and north. I agree that this approach minimizes adverse impact. Doing so, I find that the massing proposed maintains the general intent and purpose of the OP, to the extent that a strict imposition of FSI is not required.

69In my finding, the proposed variances meet the test of being minor in nature.

70The order of magnitude of the variances sought is consistent with those approved and occurring in the area.

71DESIRABLE – I accept the evidence that, since a substantial number of dwellings with approved variances similar to those requested, already exist in the geographic neighbourhood, this proposal mirrors a common, existing condition.

72I find also that it results in a reasonable addition which, due to its sensitive design, can exist harmoniously in the immediate context.

73I accept the evidence that, notwithstanding the proposed variances, the rear yard with its existing amenities can continue to function well.

74I accept that the proposal fits with, and does not alter, the pattern of built form common in the geographical neighbourhood.

75I find that the proposal is appropriate to the development of the land.

76These findings in mind, I find that the proposal meets the desirability test.

77Further, I accept the evidence that the proposal, “implements the Provincial and local planning policy framework in a reasonable, appropriate and sensitive manner”.

78I accept the evidence of the expert witness to the effect that the proposal meets the test of being desirable for the appropriate development of the land.

CONCLUSION

79I find that the proposal demonstrates the requisite sensitivity to the immediate context of the neighbourhood.

80I find that the length, depth and side yard setback variances sought, essentially representing existing conditions, deserve approval. Further, I find that the increased FSI, not resulting in significant adverse impacts, also deserves approval.

81For the reasons stated above, I find that the four variances requested maintain the general intent and purpose of the Official Plan and the Zoning By-law. Further, I find that the requested variances are minor and desirable for the development of the land.

DECISION AND ORDER

82The Tribunal ORDERS THAT the Appeal is allowed, and the following variances are approved, on the Condition set out below. The decision of the Committee of Adjustment, dated September 10, 2024, is set aside.

Chapter 10.20.40.20.(1), By-law 569-2013 The maximum permitted building length is 17 m. The altered dwelling will have a length of 28.25 m.
Chapter 10.20.40.30.(1), By-law 569-2013 The maximum permitted building depth is 19 m. The altered dwelling will have a depth of 28.87 m
Chapter 10.20.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (499.21 m2). The altered dwelling will have a floor space index equal to 0.85 times the area of the lot (1,214.78 m2).
Chapter 10.20.40.70.(3)(E), By-law 569-2013 The minimum required side yard setback is 1.8 m. The altered dwelling will be located 1.57 m from the side (north) and 1.51 m from the side (south) lot lines.

83The CONDITION is as follows:

That construction shall be in substantial conformity with the plans and elevations issued by Richard Wengle Architect for the COA, dated July 15, 2024, specifically: Site Plans (2); Second Floor Plan; South Elevation; West Elevation (2); East Elevation; and North Elevation.

B. Mullock

Panel Member