Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
DECISION AND ORDER
Issuance Date: March 17, 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): J. JAVADZADEH
Applicant(s): B. SAFFARIAN
Property Address: 321 LAIRD DR
COA File No.: 24 196444 NNY 15 MV (A0406/24NY)
TLAB Case File No.: 24 224162 S45 15 TLAB
Hearing Date(s): February 11, 2025 February 14, 2025
Decision Delivered By: TLAB Panel Member T. Kezwer
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | B. Saffarian | |
| Appellant | J. Javadzadeh | M. Mazierski |
| Party (TLAB) | Leaside Residents Association | A. Surgenor |
| Party (TLAB) | City of Toronto | S. Messina A. Sandhu |
| Participant | K. Surgenor | |
| Participant | R. Jackson |
INTRODUCTION AND CONTEXT
1This case deals with the property municipally known as 321 Laird Drive (the “Property”). The property is located on the east side of Laird Drive, south of Broadway Avenue, and is zoned RD (f9.0, a275, d0.45). The property is designated Neighbourhoods in the Official Plan.
2The Applicant/Appellant appeals a denial by the North York Panel of the Committee of Adjustment of a request for four minor variances. The Applicant/Appellant filed several Applicant’s Disclosures which reduced and modified the requested variances, so that there are now two minor variances before the Toronto Local Appeal Body (the “Tribunal”).
3The Leaside Residents Association, which is a party to this appeal, brought a motion seeking among other matters, clarification regarding the requested variances that would be before the Tribunal during this hearing. A motion decision, Saffarian (Re), 2025 ONTLAB 302, Saffarian (Re), was released on February 3, 2025. This motion decision reviews the history of the Property, as it has been before the Committee of Adjustment on three different occasions. In addition, the motion decision held that an Applicant/Appellant which is before the Tribunal has the ability to determine which variances it is seeking for a property. If an Applicant/Appellant does not obtain the relief it requires for a proposal, it may need to go back to the Committee of Adjustment to seek such further relief as may be required.
4In the present case, the requested variances have already been constructed, although they are viewed as being proposed variances pending the outcome of this case. Construction has also ceased on the Property pending the outcome of the minor variance application.
5The Tribunal is allowing the appeal, and granting the two requested variances.
6My motion decision outlined the history of the three minor variance applications for the property. I will outline them again here for ease of reference.
7On March 3, 2022, the following variances were requested and approved:
Chapter 10.20.40.10.(1)(A), By-law No. 569-2013 The permitted maximum height of a building or structure is 8.50 m. The proposed height of the building is 8.81 m.
Chapter 10.20.40.10.(6), By-law No. 569-2013 In the RD zone, for a detached house, the elevation of the lowest point of a main pedestrian entrance through the front wall or a side main wall may be no higher than 1.2 m above established grade. The proposed height of the main pedestrian entrance is 1.41 m above established grade.
Chapter 10.20.40.40.(1)(A), By-law No. 569-2013 The permitted maximum floor space index is 0.45 times the area of the lot. The proposed floor space index is 0.69 times the area of the lot.
Chapter 6.2.3, Zoning by-law No. 1916 The maximum permitted building height is 8.50 m. The proposed building height is 8.81 m.
8A building permit was issued on or about October 6, 2022. The Property currently contains a new structure that is boarded up. The new structure requires additional minor variances.
9On April 25, 2024, the following variances were requested and denied:
Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013 Exterior stairs providing pedestrian access to a building may encroach into a required building setback if the stairs are no wider than 2m. The proposed rear yard stairs width is 2.16m.
Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013 Exterior stairs providing pedestrian access to a building may encroach into a required building setback if the stairs are no wider than 2m. The proposed front yard stairs have, an enclosed space below, a width of 1.86m.
Chapter 10.5.40.70(1), By-law 569-2013 The minimum required front yard setback is 7.02m. The proposed front yard setback is 5.77m.
Chapter 10.20.30.40.(1)(A), By-law 569-2013 The permitted maximum lot coverage is 35% of the lot area. The proposed lot coverage is 39.3% of the lot area.
Chapter 10.20.40.10.(2)(A), By-law 569-2013 The maximum permitted main side walls height is 7.5m. The proposed main side walls height is 8.5m.
Chapter 10.20.40.20.(1), By-law 569-2013 The permitted maximum building length is 17m. The proposed building length is 18.64m.
10This denial by the Committee of Adjustment is not under appeal before the Tribunal.
11On September 26, 2024, a third application for the Property was heard by the Committee of Adjustment. The following variances were requested and denied:
Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2m. The proposed front yard stairs have enclosed space below and are 1.86m wide.
Chapter 10.20.30.40.(1)(A), By-law 569-2013 The permitted maximum lot coverage is 35% of the lot area. The proposed lot coverage is 39.55% of the lot area.
Chapter 10.20.40.10.(2)(A), By-law 569-2013 The maximum permitted main side wall height is 7.5m. The proposed main side wall height is 8.33m.
Chapter 10.20.40.20.(1), By-law 569-2013 The permitted maximum building length is 17m. The proposed building length is 17.13m.
12It is this third application before the Committee of Adjustment which is under appeal before the Tribunal.
Minor Variances before the Tribunal
13The variances requested at the September 26, 2024, Committee of Adjustment hearing were based on a Zoning Notice dated July 2, 2024. This Zoning Notice classified the project as a “3+ Unit – Detached Multiple Projects”.
14The Applicant filed an Applicant’s Disclosure on November 18, 2024, which removed variance number 3, dealing with main side wall height. This was done due to the Applicant redesigning the roof of the building, and a revised set of plans dated November 17, 2024, were also filed with the Tribunal.
15The Applicant’s Disclosure also modified the stair width for variance 1, changing it from 1.86 m to 1.96 m wide. The Applicant’s Disclosure noted that
The only reason that the examiner has identified a variance under the stair width provision is because the applicant has excavated the area below the front stairs, and it is the examiner’s interpretation that, where the bylaw is silent on excavation (meaning that it does not expressly say that excavation is permitted), the lack of express permission to excavate means that the bylaw prohibits it. As there is no bylaw provision that expressly prohibits excavation below the front stairs, the examiner, who wanted to identify a variance but had no specific provision to tie the variance to, used her discretion to list a variance for excavation below the stairs via reference to the provision that governs the width of encroaching front stairs.
16A Responding Expert Witness Statement Form 21 was filed on January 13, 2025. This witness statement refers to and includes a copy of a new Zoning Notice that was obtained on January 13, 2025. This Zoning Notice also classifies the property as “3+ Unit – Detached – Multiple Projects”, and it provides that two minor variances are required. These variances are as follows:
Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2.0 metres. The proposed front yard stairs have enclosed space below and are 2 metres wide.
Chapter 10.20.40.20.(1), By-law 569-2013 In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres. The proposed building length is 17.13 metres.
17There was a change to variance 1 for this Zoning Notice. The front stair width was now identified as being 2.00m wide instead of 1.96m wide.
18In my motion decision dated February 3, 2025, I found that the Applicant/Appellant was not seeking the lot coverage variance and that there was an adjustment in the width for the front yard stairs, and directed that the Applicant/Appellant file an updated Applicant’s Disclosure. This was received by the Tribunal on February 4, 2025, along with the current plans for the proposal (see exhibits 4 and 5 below).
Subsection 45(18.1.1) of the Planning Act
19The Applicant/Appellant filed several Applicant’s Disclosures. The most recent one before the Tribunal is dated February 4, 2025, and counsel for the Appellant requested that the Tribunal find that pursuant to subsection 45(18.1.1) the proposal be formally amended from the proposal which was before the Committee of Adjustment on September 26, 2024. The City took no position on the matter, and the Leaside Residents Association had no formal objection with the exception that Mr. Surgenor noted that they did not agree with the way this application is being addressed, as there are a pattern of ad hoc changes that the community takes exception to.
20The Planning Act at subsection 45(18.1) asserts that written notice must be provided for an application which has been amended to the persons and public bodies who received notice of the original application and to others and agencies prescribed under subsection 45(5).
21In addition, the Planning Act at subsection 45(18.1.1) provides that no new public notice is required under subsection 45(18.1) if in the Tribunal's opinion, the amendment to the original application is minor. There is no further statutory guidance on what constitutes a minor amendment. In my opinion, context is very important when considering whether an amendment to an original application is minor.
22The amendments to the variances being sought include the elimination of the lot coverage variance and the main side wall height variance. The lot coverage variance is not being sought due to O. Reg 299/19 which increased the maximum permitted lot coverage to 45% for multiplexes. In addition, the main wall height variance has been eliminated due to a redesign of the dwelling. The building length variance remains the same. The width in the proposed front yard stairs has been increased from 1.86m to 2m. This is still complaint with the zoning by-law which permits a maximum width of 2m. The Applicant/Appellant’s planner, Mr. Benczkowski’s evidence was that this minor variance was included by the zoning examiner to address another issue – that of the excavated space underneath the front stairs. In other words, the issue that the zoning examiner was looking to address has not been modified, and the stairway width itself is still complaint with the bylaw. I find that the proposed modified variances result in a reduction in the scope and scale of the variances being requested. Considering these factors, I find that the amendment to the original application is minor, and that no new public notice is required under subsection 45(18.1) of the Act.
23I will now outline the exhibits that were filed during this hearing.
Exhibits
24Eight exhibits were entered into the record. The exhibits are as follows:
Exhibit 1: Applicant Document Book – received by the Tribunal on December 27, 2024
Exhibit 2: Mr. Benczkowski’s Expert Witness Statement – received by the Tribunal on December 27, 2024
Exhibit 3: Responding Experts Witness Statement Form 21 Filing – received by the Tribunal on January 13, 2025
Exhibit 4: Updated Applicant’s Disclosure Form 3 Filing – received by the Tribunal on February 4, 2025
Exhibit 5: Building Plans filed by the Applicant/Appellant dated December 24, 2024 – received by the Tribunal on February 4, 2025
Exhibit 6: Leaside Residents Association Party Witness Statement filed by Mr. Kettel – received by the Tribunal on December 27, 2024
Exhibit 7: Party Document Disclosure Addition filed by the Leaside Residents Association – received by the Tribunal on January 7, 2025
Exhibit 8: Revised Witness Statement filed by the Mr. Kettel – received by the Tribunal on February 9, 2025
Synopsis of the Hearing
25This hearing lasted for approximately 1 ½ days. The hearing started with Mr. Mazierski briefly reviewing the two requested variances and making his subsection 45(18.1.1) request, which is addressed previously in this decision. Mr. Mazierski then began his opening statement on behalf of the Applicant/Appellant. Mr. Mazierski noted that the construction on the Property has not gone perfectly in accordance with the issued permit. There was a change of plans, and some work was done without a formally updated permit being in place. Mr. Mazierski argued that the Tribunal’s role is to evaluate the proposal as though nothing has been built without a permit, and that the Tribunal cannot punish or give special treatment as a result of the construction situation. Mr. Mazierski argued that the Tribunal should evaluate the proposal strictly on planning merits and that the applicant has already been punished for the construction that has occurred. Mr. Mazierski argued that the proposal calls for fewer variances than were refused by the Committee of Adjustment, and that the proposal is the definition of minor.
26Mr. Mazierski concluded that there are two critical themes for this matter: (1) how perceivable to the eye will the two requested variances be from the outside of the building, and (2) what is it that the two variances allow the proposal to achieve in terms of functional space.
27Ms. Sandhu then presented her opening statement on behalf of the City of Toronto. Ms. Sandhu noted that the City Solicitor was instructed by City Council to oppose the appeal. Ms. Sandhu argued that the onus is on the applicant to prove its case. The City’s position is that the proposal and requested variances fail to satisfy the four tests and will result in a dwelling that does not respect or reinforce the existing physical character of the geographic neighbourhood, especially with regards to building length.
28Mr. Surgenor then provided an opening statement on behalf of the Leaside Residents Association. Mr. Surgenor stated that the Residents Association’s position is harmonious with the City’s position. Mr. Surgenor asserted that the four criteria for a minor variance are not met, and that proof of this can be seen throughout the procedural history of the file. Mr. Surgenor stated that the Residents Association was not present at the hearing to enact punishment or seek any sort of punitive measure, and that they will reserve and limit their comments to the merits of the application. Mr. Surgenor asserted that there has been a great deal of confusion regarding the proposal. Mr. Surgenor noted that the Committee of Adjustment, which was comprised of substantially the same panel on April 25, 2024, and September 26, 2024, expressed great confusion at the unorthodox way that the proposal has unfolded.
29After the opening statements were completed, Mr. Benczkowski was qualified as an expert witness in the area of land use planning and his examination in chief commenced. After the examination in chief, Mr. Benczkowski was cross-examined by Ms. Sandu and Mr. Surgenor. After a brief re-examination, Mr. Benczkowski’s testimony was complete. Mr. Kettel was then called to testify by the Leaside Residents Association. The Residents Association requested that Mr. Kettel be qualified to testify as an expert witness in the area of land use planning. I declined to qualify Mr. Kettel as an expert witness in part on the basis that Mr. Kettel is co-president of the Leaside Residents Association and a party to a proceeding cannot offer the impartial evidence required of an expert witness. That being said, I allowed Mr. Kettel to provide his opinions regarding the proposal in the context of being a lay witness. After Mr. Kettel provided his evidence in chief, he was cross-examined by Mr. Mazierski, and then re-examined by Mr. Surgenor. The day concluded with Ms. Surgenor providing testimony in her capacity as a Participant, and being cross-examined by Mr. Mazierski.
30The hearing resumed on day 2 for the closing statements. Mr. Mazierski provided his closing submissions. Mr. Mazierski argued that both minor variances associated with the proposal have to do with excavation below the ground level, namely the excavation below the front stairway where there is a furnace room, and the additional 0.13 cm excavation at the rear of the property. The 0.13 excavation at the rear of the property only exists for roughly half the width of the house below grade. Mr. Mazierski asserted that both minor variances are caused by the applicant trying to create more floor area for the two basement units. This is done by pushing back the kitchen and furnace. From Mr. Mazierski’s perspective, this is clever placement to create more living area in the remainder of the house.
31Mr. Mazierski asserted that the building would not look any different if the minor variance was refused. The only difference would be less living space for the two basement suites. Mr. Mazierski asserted that compromising the floor area of the additional basement units would run counter to Provincial Bill 23, and O. Reg 299/19, as amended. The proposal achieves the intent and purpose of the Official Plan to accommodate additional units in single family homes in low rise neighbourhoods.
32Mr. Mazierski asserted that Mr. Benczkowski was the only expert witness before the tribunal, and he cited case law which I will discuss further below in this decision. Mr. Mazierski asserted that SASP 826 had to be added to the Official Plan to provide development criteria for multiplexes that had not been previously permitted in Neighbourhoods. The SASP 826 policies are meant to be more flexible than the 4.1.5 policies, and the previously existing Zoning By-law provisions as well. Mr. Mazierski asserted that the proposal still respects and reinforces the physical character of the neighbourhood under policy 4.1.5.
33Mr. Mazierski posited that the City attempted to reduce the Official Plan analysis to a strict numerical exercise. However, he asserted that the 0.13 m length in the basement is concealed below an as-of-right first storey deck, and that the proposed lengths for the 1st and 2nd floor are less than the permitted 17 m length. The 1st floor is 1.8 m less, and the 2nd floor is 1.2 m less than the 17 m Zoning By-law maximum. Regarding the excavation below the front stairs, Mr. Mazierski asserted that the Official Plan is more permissive for multiplexes than single family homes. Mr. Mazierski noted that Mr. Kettel stated that he could not determine whether the area has been excavated or not. Mr. Mazierski also asserted that the Property is within a MTSA, for Laird Station on the Eglinton Crosstown LRT. It is Mr. Mazierski’s position that it makes no sense to not permit a 13 cm below rear deck and excavation below a stair variance when the proposal is located in an MTSA.
34With regards to the intent and purpose of the Zoning By-law, Mr. Mazierski asserted that if the two proposed variances do not meet this test, it would be the equivalent of determining that the general intent and purpose of the Zoning By-law is strict compliance, which would negate the purpose of section 45(1) of the Planning Act. Mr. Mazierski asserted that the idea that building length is supposed to regulate excavation is inconsistent with the applicant being allowed to excavate beyond 17 m, for example to create the basement walkout. The stair width variance was identified out of an abundance of caution and an approval of the variance would allow for the creative placement of the furnace, which opens up more floor area in the basement.
35Mr. Mazierski posited that the second storey balcony, additional units in the basement, etc. are not relevant to the actual hearing, as these are not issues for which the applicant is asking relief. In addition, the number of units in the building is permitted as of right in any low-rise City Neighbourhood.
36In terms of the desirability test, Mr. Mazierski asserted that the Leaside Residents Association is upset about the process including the order to comply and the Committee of Adjustment applications. However, there is no limit on the number of applications an applicant can file. In addition, Mr. Mazierski argued that there is an established legal principle regarding orders to comply which is that the Tribunal does not give special treatment to the applicant to avoid having to tear down something that has been built. This is a double edged sword – there is also no special treatment from the opposing perspective. Mr. Mazierski noted that the Committee of Adjustment charges applicants double the regular fee for After the Fact variances. Mr. Mazierski asserted that the desirability test captures everything not explicitly caught in some of the other tests. Mr. Mazierski also asserted that Mr. Benczkowski’s evidence was that each application is evaluated on its own merits. Mr. Mazierski’s position is that the proposal is desirable because it adds functional floor area to two 2-bedroom basement suites, without having any impact on the building or character of the neighbourhood.
37For the test of minor, Mr. Mazierski asserted that this deals with impact, and he noted that neither of the two flanking properties were present at the Tribunal. Mr. Mazierski’s position is that the variances will have no impact on sunlight or privacy, and no visible impact on the neighbourhood. Refusing the variances will not change the appearance of the building. Mr. Mazierski asserted that there is no unacceptable adverse impact, as none of the complaints raised had anything to do with the variances. Mr. Mazierski also posited that City planning was not at the hearing providing evidence, and did not raise objections to the proposal at the Committee of Adjustment. Mr. Mazierski stated that the Tribunal should allow the appeal subject to two conditions, both conditions which have been adopted in this decision.
38Ms. Messina made closing arguments on behalf of the City of Toronto, stating that the City Solicitor had been instructed by City Council to attend in opposition to the application. Ms. Messina asserted that the Applicant/Appellant has not met the four tests for a minor variance and stated that the appeal should be dismissed and the minor variance application refused. Ms. Messina asserted that the Official Plan requires that no changes are made through a minor variance application which is out of keeping with the overall physical character of a neighbourhood. Policy 4.1.5 requires that the context within a neighbourhood is considered when dealing with a minor variance application. Ms. Messina asserted that Mr. Benczkowski delineated his geographic neighbourhood only based on zoning and no other considerations, which is not in line with the Official Plan. Ms. Messina further asserted that Mr. Benczkowski did not know the total number of properties within his geographic neighbourhood, and cited the need for Mr. Benczkowski to meet his obligations under rule 16.11 and 16.13 of the Tribunal’s Rules of Practice and Procedure.
39Ms. Messina also cited caselaw from this Tribunal that Policy 4.1.5 must be considered when evaluating multiplexes, and asserted that the Applicant/Appellant’s cited cases deal with garden suites and not multiplexes. I will deal with the case law in greater detail below.
40Ms. Messina further asserted that Mr. Benczkowski provided his opinion in cross examination that OPA 649 and SASP 826 entirely supersede Policy 4.1.5 which contradicts his expert report.
41Regarding the length variance, Ms. Messina asserted that 5 of 70 Committee of Adjustment decisions which Mr. Benczkowski identified in his geographic neighbourhood dealt with building length. Ms. Messina asserted that Mr. Benczkowski did not use a statistical analysis for his evidence, but he used a subjective approach whereby he drew a reference line to assess building lengths in the immediate context. Ms. Messina asserts that this lacks the rigor and precision expected in expert analysis. Ms. Messina posited that while Mr. Benczkowski’s justification for this approach is that the variances are underground and imperceptible from the street, however, Ms. Messina asserted that this does not eliminate the need for neighbourhood measurements. Ms. Messina further asserted that Mr. Benczkowski did not consider older properties which have older zoning and which did not go before the Committee of Adjustment. The Official Plan requires comprehensive evaluation of all properties in a neighbourhood and Ms. Messina asserted that Mr. Benczkowski did not meet this requirement. Conclusions were based on a limited set of photographs and a general assertion that the neighbourhood is composed primarily of single-family homes. Ms. Messina asserted that the failure to consider the full range of physical characteristics in the neighbourhood weakens Mr. Benczkowski’s analysis, and with a lack of statistical evaluation, the Tribunal was deprived of the best evidence that it needs.
42Ms. Messina took the position that what she considers to be a reliance on a limited subset of Committee of Adjustment decisions without comprehensive quantitative analysis of building lengths weakened the credibility of Mr. Benczkowski’s conclusions. Ms. Messina further asserted that above and below ground measurements are relevant in assessing the overall appropriateness of the dwelling on the lot, and that as of right zoning should not be a relevant consideration. In other words, as of right zoning for the 1st and 2nd floors should not be relevant when evaluating the requested variance for the basement.
43Ms. Messina further asserted that the denial of the variances may result in a loss of useable space, but that there was no evidence that moving the furnace could result in the loss of bedrooms. Ms. Messina also asserted that the stairway excavation variance is intrinsically linked to building length as both are essential components of the proposed design. In conclusion, Ms. Messina posited that the four tests for a minor variance application are not met and that the application should be denied.
44Mr. Surgenor provided his closing remarks, stating that nothing of substance has changed between the September 26, 2024, Committee of Adjustment hearing and today. The onus is on the applicant to prove its case, and in Mr. Surgenor’s view, none of the reasons for the initial refusal at the Committee of Adjustment have been ameliorated. Mr. Surgenor asserted that he is interested in a robust and fair process, and that this Tribunal is to make decisions on the basis of relevant criteria. Mr. Surgenor’s position is that the proposal impacts the broader area, not just the adjacent properties. Mr. Surgenor expressed concern with respect to the role of the zoning examiner, as there was no disclosure with respect to how the zoning examiner made their decision in the zoning notice. In Mr. Surgenor’s view, this flies in the face of procedural fairness. Mr. Surgenor believes that the property was all of a sudden and in a rather unfair manner, viewed as a triplex. Mr. Surgenor expressed confusion regarding what constitutes a detached house as opposed to a triplex.
45Mr. Surgenor asserted that if the front stairs cover a furnace room, that room is an encroachment. Mr. Surgenor asserted that at no point did the zoning examiner return any of the correspondence that had been sent to the zoning examiner by the Leaside Residents Association or the neighbours regarding the zoning notice that was performed on the property. Mr. Surgenor posited that the greater concern is with the overall way that the process has unfolded and that there are procedural issues with how the evidence was presented. In Mr. Surgenor’s view, everything was done in bad faith, and could have been avoided with open discussion at the very beginning. There were changing definitions of the type of dwelling the structure is, ex post facto revisions to the application without any actual formal changes, etc. Mr. Surgenor asserted that the proposed minor variances should be denied by the Tribunal.
46At this point, it was time for Mr. Mazierski’s reply. However, Ms. Surgenor wished to make a closing statement as well. I indicated that as a participant, Ms. Surgenor did not have the right to make a closing statement. However, seeing that the matter was important to her and considering that this Tribunal functions as a local Tribunal with less rigidity than more formal judicial proceedings, I exercised my discretion and allowed Ms. Surgenor to provide a closing statement.
47Ms. Surgenor asserted that the City in its closing submissions identified a lot of relevant issues with Mr. Benczkowski’s evidence. She stated that the journey regarding the Property in the past two years has been a big process issue for the community, the Leaside Residents Association, and residents on the street. Ms. Surgenor asserted that the property is built and that it was put forth to the Committee of Adjustment twice and was rejected. In Ms. Surgenor’s view, approving the appeal sends a dangerous message to developers that they can ignore laws and build without proper approval.
48Mr. Mazierski then had the opportunity to provide his reply. With regards to built form, Mr. Mazierski asserted that the proposal has no impact on built form. The variances have regard for built form but they have no effect on built form. In terms of Mr. Benczkowski’s building length evidence, Mr. Mazierski noted that the data in these cases is not always available for the length of every individual building in a neighbourhood. An expert witness needs to be creative in explaining how massing compares to what exists in a neighbourhood. Mr. Benczkowski brought attention to a property on the same block, which he asserted clearly has a noncompliant length. Mr. Benczkowski also drew a line from 331 Laird Drive because there is no Committee of Adjustment decision so he needed a way to contend with building length. In Mr. Mazierski’s view, Mr. Benczkowski’s evidence demonstrates that a 15.2 m 1st floor and a 15.8 m 2nd floor is consistent with what is going on in the east side of the neighbourhood and clearly shows that the proposal respects and reinforces the neighbourhood character. Mr. Mazierski’s view is that the City is criticizing Mr. Benczkowski for relying upon the Committee of Adjustment decisions – when there were only 5 such decisions – and then criticizing Mr. Benczkowski for trying to rely upon other methods to formulate his opinion. Mr. Mazierski completed his reply, and the hearing was concluded.
49I will now review the legal framework guiding this matter.
THE LEGISLATIVE POLICY AND FRAMEWORK
50Provincial Interest - S. 2
A decision of the Tribunal shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.
51Provincial Policy – S. 3
A Decision of the Tribunal must be consistent with the 2024 Provincial Planning Statement for the subject area.
52Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the Tribunal must be satisfied that the applications meet all 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.
53I will now provide a summary of the evidence that was heard at this hearing.
SUMMARY OF EVIDENCE
Mr. Benczkowski
54Jonathan Benczkowski was qualified to provide expert opinion evidence in the area of land use planning. Mr. Benczkowski is a land use planning consultant at Sol-Arch (Architecture + Planning), with over 20 years of experience in a variety of planning matters. Since 2005, Mr. Benczkowski has been responsible for all of Sol-Arch’s planning work, including many consent and minor variance matters.
[55] Mr. Benczkowski has a degree in Urban, Economic and Social Geography from the University of Toronto, and is a full member of the Ontario Professional Planners Institute (RPP) as well as the Canadian Institute of Planners (MCIP).
56An Acknowledgement of Expert’s Duty Form 6 was filed on page 2 of his Expert Witness Statement, which is Exhibit 2.
57Mr. Benczkowski provided his opinion that the application represents good planning, supports the revitalization of housing stock and promotes the efficient use of land and infrastructure without causing undue adverse impacts. Mr. Benczkowski’s opinion is that the application appropriately implements the changes to provincial legislation for multiunit dwellings, and respects and reinforces the physical character of the area. Mr. Benczkowski’s further opinion is that the proposal maintains the general intent and purpose of Official Plan and Zoning By-law, the variances are minor and appropriate, and there is no undue adverse impact on neighbouring properties or the broader neighbourhood. Mr. Benczkowski’s opinion is that the proposed variances individually and cumulatively meet the four tests outlined in section 45(1) of Planning Act, the appeal should be allowed and the application approved with the recommended conditions.
58Mr. Benczkowski referred to the March 3, 2022, minor variance application (which was not before the Tribunal) and noted that only variance number 2, dealing with the proposed height of the main pedestrian entrance being 1.41 m above established grade has carried forward to the present date. The rest of the variances from that application are now compliant.
59Mr. Benczkowski referred to O. Reg. 299/19, under the Planning Act, which was amended on November 20, 2024. Mr. Benczkowski provided his opinion that subsection 5(1) increased the permitted lot coverage to 45% for the Property, which eliminated the need for the lot coverage minor variance. As stated previously in this decision, the lot coverage minor variance was removed by the applicant in the Applicant’s Disclosure.
60Mr. Benczkowski’s stated that variance 1, dealing with stairway width is for the excavated furnace room below grade. I have already reviewed the unusual nature of this variance. Mr. Benczkowski further stated that variance 2 deals with 0.13 m below grade in the basement, which he identified as being at the rear of the property where the kitchen area is. In other words, the two variances are for the excavation under the stairs and the increased length of the basement only. The rear deck is above the kitchen extension. Mr. Benczkowski’s opinion is that the requested variances are not noticeable from the surrounding area. Mr. Benczkowski further opined that the massing of the dwelling is permitted, including building height, main wall height, etc.
61Mr. Benczkowski stated that the zoning notice which the Applicant/Appellant is relying upon was issued by one of the three managers of Zoning across the City of Toronto, Kristal Sethi.
62Mr. Benczkowski discussed Official Plan Amendment 649 (“OPA 649”) which was adopted by City Council to permit duplexes, triplexes, and fourplexes in residential areas across the City. OPA 649 clarifies that multiplexes are a permitted building type in all Neighbourhoods, subject to certain development criteria. Mr. Benczkowski’s opinion is that the Official Plan recognizes that multiplexes will be a new form of housing that will not always respect and reinforce the existing neighbourhood character but can still respect and reinforce the existing neighbourhood character as found in the policies.
63Site and Area Specific Policy 826 (“SASP 826”) provides that multiplexes are permitted in Neighbourhoods and provides policies which they are subject to. SASP 826 asserts that
Low-rise residential buildings that contain more than one unit make more efficient use of land, and provide more ground-related housing choices for all residents at all stages of their lives, supporting the vitality of the city's Neighbourhoods. Multiplexes – residential buildings containing up to four units – can deliver additional dwellings while integrating with the general physical scale and development patterns of the neighbourhood. To accommodate the modest intensification needed to house more people, regulations for multiplexes may differ from single-unit buildings to ensure efficient and livable homes for Toronto's residents.
64Chapter 5 of the Official Plan contains policies to ensure that the plan functions effectively over the long time. Policy 5.6 deals with interpreting the Official Plan, and policy 5.6.7 deals with an SASP, asserting that
- The policies of this Plan will apply to areas subject to site/area specific policies contained in Chapters Six and Seven except where in the case of a conflict, the site/area specific policy will prevail.
In other words, the SASP prevails where there is a conflict between a Policy and the SASP. Multiplexes are to be evaluated against the criteria of 4.1.5 and SASP 826, however, the SASP prevails where there is a conflict.
65Ms. Messina argued in her closing submissions that Mr. Benczkowski provided an incorrect opinion that OPA 649 and SASP 826 override Policy 4.1.5. I do not agree. I believe that Mr. Benczkowski was opining that in the context of this particular case, the relevant development criteria are listed in OPA 649 and SASP 826. I agree and accept Mr. Benczkowski’s opinion on this matter.
66During cross-examination by Ms. Sandu, Mr. Benczkowski agreed that OPA 320 introduced the concept of prevailing to policy 4.1.5, which means the most frequently occurring. Mr. Benczkowski’s opinion is that in this case, policy 5.6.7 applies, and OPA 649 and SASP 826 prevail over policy 4.1.5.
67Mr. Benczkowski noted that the property is located within the boundary of the MTSA – Laird Station, which is still awaiting final implementation.
Mr. Kettel
68Geoff Kettel, Co-President of the Leaside Residents Association provided lay witness evidence before the Tribunal. As I noted above, Mr. Kettel sought to be qualified as an expert witness to provide opinion evidence in the area of land use planning. I declined to qualify Mr. Kettel as an expert witness because the Leaside Residents Association is a party to this proceeding and has a vested interest in the outcome. The Acknowledgement of Expert’s Duty Form 6 at Part 4 includes the Acknowledgments for the expert to agree to. This includes: “a. to provide opinion evidence that is fair, objective and non-partisan”. It is not possible for a party to a proceeding to meet this requirement. In addition, I note that Mr. Kettle is not a registered professional planner in Ontario.
69While not qualifying Mr. Kettel as an expert witness, I did allow Mr. Kettel the opportunity to provide his opinion on various aspects of the proposal, however, in the context of being a lay witness. This is not in strict conformity with standard practice at the Tribunal, where only expert witnesses are allowed to provide opinions. However, I determined that this was an appropriate situation to make an exception for various reasons including the experience that Mr. Kettel has had as a local advocate for his community.
70Mr. Kettel reviewed the history of the three Committee of Adjustment applications for the subject property. Mr. Kettel provided his opinion that the desirability of a proposal falls into the area of impact, and the ability to enjoy one’s property, life and liberty. Mr. Kettel further opined that the prevailing test is still in the Official Plan, even if it is overridden by the OPA and SASP.
71Mr. Kettel explained his perspective that the Committee of Adjustment approves a majority of what comes before it. If the residents impacted by an application oppose it and put together a good argument, they may be successful in their opposition to an application. Mr. Kettel stated that the Leaside Residents Association was planning to bring forward alleged variances that the property requires but which they are not able to do so due to the motion decision released for this case. I note that it was the Leaside Residents Association who brought forward the motion.
72As I stated very clearly in the motion decision, the Tribunal does not have the authority to determine what variances apply to a property. This Tribunal only has the authority to determine whether a proposed variance meets the statutory tests for a minor variance. It is the responsibility of the Applicant to determine what variances they want to bring before the Tribunal. Applicants can either use a zoning waiver or a zoning notice to determine which variances they would like to apply for. In this case, a zoning notice was obtained.
73Mr. Kettel is knowledgeable about the zoning examination process, and he explained on his re-examination by Mr. Surgenor that a zoning examiner makes the final determination about which variances exist. However, he asserted that this is not an impartial analysis, and that there is appeal or review that can be filed by a third party. If there is a concern about a zoning examination, the remedy is to go to the City’s ombudsman.
74Mr. Kettel asserted that zoning examiners are typically viewed as junior staff at the City and that they have autonomy in how they choose to handle various proposals for which they prepare zoning notices. Mr. Kettel believes that this is not a fully transparent process and that it is subject to influence.
75Mr. Kettel asserted that the dwelling which has been constructed is not a beautiful building and that it has attracted a lot of concern in the neighbourhood. Due to the variance issue, the work had to stop, and from Mr. Kettel’s perspective, the property is deteriorating through the winter and will require a massive investment to rectify it.
76Mr. Kettel asserted that there is a building length issue. His calculation is that the building length is 18.7 m, as opposed to the length outlined in the zoning notice of 17.13 m. The issue is what the zoning examiner chose to be the main front wall as opposed to what Mr. Kettel believes should be the main front wall. Mr. Kettel noted that one cannot tell whether the furnace room under the front stairs exists when observing the building from the street.
77In addition, Mr. Kettel opined that the stairs width by-law does not apply in this case, and that the description of the variance should have been changed.
78Mr. Kettel made comments about the lot coverage – an issue that once again, was already decided in the motion that the Leaside Residents Association brought on its own initiative. Mr. Kettel opined that the lot coverage should be 41.8%, which is above the 35% by-law limit.
79Mr. Kettel made some observations about the rapid changes which have recently been implemented by the province in the area of land use planning. For example, third parties such as residents associations and neighbours no longer have the right to appeal a Committee of Adjustment decision. Mr. Kettel believes that there is a gap between the City absorbing the changes imposed on it by the province. He asserted that there has been a loss of democracy and that residents are not being made aware of what has been approved in a manner that they can understand and where they feel that they can have a role to play.
80Mr. Kettel further opined that the proposal does not respect and reinforce the physical character of the neighbourhood. In his view, the height, massing and scaling does not conform to the general intent and purpose of the Official Plan. Mr. Kettle opined that there are significant overlook issues on neighbouring properties, especially the key lot owned by the participant in this hearing, Ms. Surgenor. In his view, the permissions relating to the basement suits are not minor, and the length is much bigger than what is being presented.
81Mr. Kettel asserted that this is a most unusual case because the property owner went back to the Committee of Adjustment when they received an Order to Comply from the building department. He also stated that the length of a property has nothing to do with grade.
82On cross-examination, Mr. Kettel stated that he was aware that no variances are required for side yard or rear yard setback. Mr. Kettel also asserted during cross examination that he believes there should be a variance for the rear balcony. When Mr. Mazierski took him to section 10.20.4.50 Decks, Platforms and Amenities in the Zoning By-law, Mr. Kettel’s position was that the property is a detached house, not a triplex.
Ms. Surgenor
83Katherine Surgenor provided her Participant’s Witness Statement. Ms. Surgenor is a neighbour who asserts that she is strongly impacted by the proposal. Ms. Surgenor moved into her property 21 years ago, and states that her neighbourhood is a wonderful place to live. It has a small town garden city feel, and she has no plans to move anywhere else. The proposal has had an impact on her family and how she enjoys her property.
84Ms. Surgenor does not begrudge someone coming into the community and building a house of their dreams. The issue is that the property owners did a bare minimum to engage with all the neighbours in the vicinity of the proposed detached house. Ms. Surgenor is very disappointed about the lack of communication with the property owners.
85Ms. Surgenor’s expectation was that a second storey would be added to the bungalow, however, the property became an anomaly. From Ms. Surgenor’s perspective, what was approved at the first Committee of Adjustment decision is not what was built – the house seems longer, wider, and taller.
86Ms. Surgenor stated that she is representing 15 different families who have questioned why the proposal is playing out the way it is. Ms. Surgenor noted that Leaside is notorious for flooding and has a high water table.
87In terms of the impact on Ms. Surgenor’s property, the rear balcony overlooks her house and dining room. In addition, the Property owner has installed 12 lights in the backyard which means she will need to close the drapes in the summer, and will lose her beautiful long backyard.
88Ms. Surgenor asserted that the property owner is asking for forgiveness after the fact, instead of permission as everyone else does in the City.
89Ms. Surgenor is disappointed that the integrity of the original home built in 1944 is not kept and she would hope that the city zoning examiner and building inspector would look at potential impact on the rest of the neighbours on the east side. The land slopes downwards to the park.
90Ms. Surgenor is concerned that she will be walled in with her key lot. She also asserted that the minor variance process for the Property has been a very confusing process, and that what she considers to be a lack of transparency has been disappointing. Ms. Surgenor suggested that notices for Committee of Adjustment hearings contain more information.
91Ms. Surgenor asserted that there is a clear view into her backyard from the subject dwelling and that it will cause major privacy issues. The subject dwelling is a huge eyesore, and Ms. Surgenor views it from her living room and bedroom.
92On cross-examination, Ms. Surgenor agreed that the massing of the building would remain the same if the variances were not approved.
Case Law
93Mr. Mazierski and Ms. Messina presented case law in their concluding statements. Mr. Mazierski cited Cortellucci (Re), 2024 ONTLAB 253, a case decided by Member Swinkin. At paragraph 39, Member Swinkin stated
- Both planners spoke to the relevant provisions of the Official Plan (“OP”). The Property is designated as Neighbourhoods in the OP. To this extent, Policy 4.1.5, which sets out development criteria in Neighbourhoods would nominally apply, however, the Tribunal is here persuaded by Mr. Benczkowski that as the proposal concerns a garden suite and as garden suites are the subject of detailed policy introduced through Site and Area Specific Policy 670 (“SASP 670”), this latter policy will take primacy and govern the criteria which apply to assess the proposal.
94I find the case at hand to be similar in that we are dealing with a multiplex, and that multiplexes are subject to SASP 826, which states “Despite Policy 4.1.5, multiplexes are permitted in Neighbourhoods, subject to the following policies: …”
95Mr. Mazierski also cited Merlak (Re), 2024 ONTLAB 216, a case decided by Chair Lombardi for the same proposition. Char Lombardi’s reasoning can be seen in the following paragraph:
[142] I also prefer Mr. Romano’s opinion that although Chapter Four of the Official Plan provides the Neighbourhoods land use designation and policies related to other forms of development, ‘garden suites’ are not referenced in these policies “…because they are a form of new housing that will not respect and reinforce the existing neighbourhood character as development criteria in policy 4.1.5 describe.”
96I do not find Ms. Messina’s distinguishing of these cases on the basis that they deal with a garden suite to be convincing. There is a specific SASP 826 that deals with multiplexes, and I have quoted from it above at paragraph 95.
97Ms. Messina cited Shakeri (Re), 2020 CarswellOnt 19644 (TLAB), to assert that Mr. Benczkowski’s analysis of the variances was insufficient. One quote from the decision is as follows:
At the risk of belabouring a conclusion stated and restated many times in this Decision, I note how the paucity of appropriate numerical information precludes my arriving at a supportable decision regarding how the density variance satisfies OPA 320. As stated on the previous page, Section 4.1.5 (c) emphasizes the relationship between the Subject Property, and the “prevailing” density. The Appellant’s decision to focus only on the 30 properties who applied for variances, effectively excludes the vast majority of more than 300 houses in the neighbourhood; any decision made on this subset of houses runs the risk of ignoring the character of the immediate context, and neighbourhood, as a whole. Consequently, there is insufficient information to determine if the proposal satisfies Section 4.1.5 of the OPA 320. I therefore err on the side of caution, and find that the density variance does not satisfy OPA 320
98I do not agree that this case applies to the present case before the Tribunal. I am satisfied that Mr. Benczkowski has provided sufficient context and analysis for the requested variances. Mr. Benczkowski used both a quantitative and qualitative analysis based on Committee of Adjustment decisions, and photographs of the neighbourhood. I also note that Mr. Mazierski asserted that this particular case is dealing with a visible massing issue that the case at bar does not have, as the two requested variances we are dealing with are below ground.
99Ms. Messina also cited Goldberg Group (Re), 2024 ONTLAB 286, where Member Gallaugher stated that
[66] I am not persuaded by Mr. Layton’s argument that OPA 649 completely supersedes Policy 4.1.5 of the Official Plan (OP). OPA 649 still requires multiplex development to “maintain the low-rise built form of each geographic neighbourhood”. Although it lists some criteria which should be observed “in particular,” I find that it does not mandate the elimination of consideration of the other criteria in the main OP, such as respecting and reinforcing prevailing heights, massing, scale, density … of nearby residential properties”
[67] I interpret this to mean that multiplexes are to be given more latitude regarding conformity to the existing scale of development than single detached houses but that such proposals should still have regard for the prevailing built form in the area.
100As I have cited above, SASP 826 states that “Despite Policy 4.1.5, multiplexes are permitted in Neighbourhoods, subject to the following policies: …” It is very clear that SASP 826 supersedes Policy 4.1.5 where there is a conflict between the policies. Regard can be had for Policy 4.1.5 but it is the criteria in SASP 826 that are relevant. Without OPA 649 and SASP 826, multiplexes would need to meet Policy 4.1.5, which would be difficult, if not impossible. One only needs to observe Neighbourhoods today to see that multiplexes are the exception and not the rule. These new policies allow for multiplexes and must be viewed in this light.
101The aforementioned caselaw analysis is relevant as it underpins the legal reasoning for the resolution of this case.
ISSES AND ANALYSIS
Provincial Interest
102I find that the proposal meets matters of provincial interest outlined in section 2 of the Planning Act, including: (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing, including affordable housing; (p) the appropriate location of growth and development. With regards to a full range of housing, the proposal adds a triplex in a Neighbourhood, which is a clear policy direction of the Provincial government and the Official Plan. It is a matter of provincial interest. With regards to the appropriate location of growth and development, the proposal is located in a proposed MTSA – Laird Station. This type of area is meant for increased densification, which the proposal achieves.
2024 Provincial Planning Statement
103Mr. Benczkowski provided his opinion that the proposal is consistent with the policies contained in the Provincial Planning Statement. I accept Mr. Benczkowski’s opinion that the proposal will allow the regeneration of the housing stock, providing for a more efficient use of land. Relevant policies are contained in Chapter 2: Building Homes, Sustaining Strong and Competitive Communities, and I will not be reviewing the Provincial Planning Statement in any greater detail as it is implemented through the Official Plan and Zoning By-law. I have considered the 2024 Provincial Planning Statement and I find the proposal to be consistent with this document.
Geographic Neighbourhood per Policy 4.1.5
104Mr. Benczkowski delineated a geographic neighbourhood, composed of properties which share the same zoning designation. The geographic neighbourhood can be seen as follows:
Exhibit 2, Tab 6: Neighbourhood Study Area Map
105Mr. Benczkowski stated that he did not include zoning that allows for semi-detached dwellings in his Geographic Study Area because this results in a different massing, dwelling type and scale. Ms. Messina asserted in her closing argument that Mr. Benczkowski only relied on zoning to delineate his Geographic Study Area. However, I find that the zoning consideration contains other underlying considerations (such as massing, dwelling type and scale) that are relevant for delineating a Geographic Study Area, and I accept Mr. Benczkowski’s Geographic Study Area.
106In addition, Mr. Benczkowski delineated the immediate context which he defined to be the eastern lots on Laird Drive which includes 9 properties. There are no dwellings on the west side of Laird Drive in the immediate context that front on Laird Drive.
107I will now review the four tests outlined in section 45(1) of the Planning Act.
Minor Variance Test
Do the Variances Maintain the General Intent and Purpose of the Official Plan
108Mr. Benczkowski stated that the property is designated Neighbourhoods in the Official Plan. Mr. Benczkowski’s opinion is that the Official Plan encourages development that is compatible within close proximity of a site and that the proposal addresses the criteria for development in Neighbourhoods.
109Mr. Benczkowski reviewed other properties in the neighbourhood such as 305 and 331 Laird Drive, which he opined extends further and deeper in the rear yards. 331 Laird Drive has a COA decision approving a length of 17.1 m, and Mr. Benczkowski analysed the length of this property relative to other properties through photographic evidence. Mr. Benczkowski opined that these other properties, such as 325 Laird Drive and 337 Laird Drive, are all above grade and have impacts that are greater than for the proposal which requires variances for the below-ground portion of the dwelling.
110Mr. Benczkowski reviewed 3.1.2 Built Form Policies, with specific reference to Built Form Policy 3.1.2(1) and 3.1.2(5), and provided his opinion that the proposal meets the general intent and purpose of these policies. Mr. Benczkowski opined that the location and massing fit the existing and planned context – the main wall height has been reduced and there are no variances being sought for the setbacks on both sides.
111Mr. Benczkowski reviewed OPA 649 which permits multiplexes on properties which are subject to the Neighbourhood designation. SASP 826 has been enacted to deal with this issue. Mr. Benczkowski’s opinion is that multiplexes in Neighbourhoods will be low rise residential buildings that contain more than one unit, and that they provide an efficient use of land and more ground-related housing choices for residents at all stages of their lives.
112Mr. Benczkowski reviewed policy 5.6.7 which provides for the interpretation of the Official Plan, and provided his opinion that the SASP prevails where there is a conflict with a specific policy, such as 4.1.5.
113Mr. Benczkowski’s opinion is that the dwelling from the streetscape maintains the look of a single family dwelling. Mr. Benczkowski’s opinion is that OPA 649 requires that built forms will evolve over time and that multiplex dwellings will function and look differently. I accept Mr. Benczkowski’s opinions as expressed above regarding the Official Plan.
114The proposal is for a triplex, and Mr. Benczkowski reviewed the various items outlined in SASP 649. I will review some of the criteria below.
115b) Development of multiplexes:
i. will maintain the low-rise built form of each geographic neighbourhood, including in particular:
a) patterns of streets, blocks and lanes, parks and public building sites;
Mr. Benczkowski’s opinion is that there is no change to the aforementioned patterns, and that this criteria is met.
116b) prevailing size and configuration of lots;
Mr. Benczkowski’s opinion is that there is no change to the size or the configuration of the lot.
117c) prevailing setbacks of buildings from the street or streets;
Mr. Benczkowski noted that the main front wall of the dwelling as it fronts Laird Drive is maintained. The front yard setback remains as per the issued building permit drawings.
118d) maximizing contiguous soft landscaping within front and rear yard setbacks that is supportive of maintaining and expanding the urban tree canopy;
Mr. Benczkowski’s opinion is that the front and rear yard are Zoning By-Law compliant as per soft landscaping requirements. The rear yard has available area to expand the urban tree canopy, which is a condition that I am imposing in this decision.
[119] ii. is encouraged to include large units, and should include at least one unit that contains multiple bedrooms;
The proposed dwelling unit on the first and second floor is 229.28 m2 and contains a three-bedroom unit. The proposed dwelling units in the basement are both two-bedroom units. I find that all three proposed units include multiple bedrooms.
[120] iii. will provide entrances that are safely accessible from the street, which may be located at the front, side or rear of the building;
Entrances are located at the front, side (south) and the rear for units and provide safe access. The front entrance is visible from Laird Drive.
[121] iv. should not result in the injury or removal of a healthy tree protected under Municipal Code Chapters 608, 658, and 813 on the subject property and adjacent properties;
Mr. Benczkowski provided his opinion that there is no injury to any protected tree under Municipal Code Chapters 608, 658, and 813
[122] v. is encouraged to salvage and/or reuse existing building materials and/or foundations;
Mr. Benczkowski’s opinion is that the existing building as well as foundation has been maintained. The proposal is for the renovation and addition to an existing dwelling.
123vii. will minimize privacy impacts between adjacent dwelling units;
Mr. Benczkowski’s evidence is that the side elevations maintain the windows in the basement. There is a proposed new window on the south elevation which is located within a stair tower and not a primary room.
124viii. will integrate with existing grades at the property line; and
Mr. Benczkowski’s evidence is that there are no alteration to the grades along the property line.
[125] ix. is encouraged to expand the urban tree canopy through the planting of a new tree on a lot with a multiplex.
A condition of approval in this decision is to plant a tree in the rear yard
126Mr. Benczkowski’s opinion is that the proposed multiplex appropriately implements the policies of SASP 826 and will respect and reinforce the existing built form and physical character of the neighbourhood. I accept Mr. Benczkowski’s opinion on this matter and the criteria listed above.
127Mr. Benczkowski also provided his opinion that pursuant to policy 4.1.5, the proposal is materially consistent with the prevailing character of the immediate block and geographic neighbourhood. I find that the proposal meets the policy of 4.1.5(c) in that it fits in with the prevailing height, massing and scale of dwellings in the neighbourhood. With regards to 4.1.5(f), the proposal is also keeping with the prevailing location of garages in the area, which is an at-grade integral garage. There are no setback variances. Mr. Benczkowski opined that his Neighbourhood Study Area has a mix of physical characteristics, and OPA 320 allows for flexibility in these circumstances. Mr. Benczkowski’s opinion is that the proposal is materially consistent with the prevailing physical character of properties in both the immediate context and the broader context.
128With regards to Policy 4.1.8, Mr. Benczkowski’s opinion is that the proposal’s substantial compliance with the Zoning By-law is an indication of compatibility within the existing neighbourhood.
129Mr. Benczkowski’s overall opinion is that the proposed dwelling respects and reinforces the existing physical character of the neighbourhood. I accept Mr. Benczkowski’s opinion and agree with him on this matter and with his analysis of the first stage of this test.
Do the Variances Maintain the General Intent and Purpose of the Zoning By-law
130Mr. Benczkowski noted that the property is zoned Residential Detached under the City of Toronto Zoning By-law 569-2013. Mr. Benczkowski provided his opinion that the Zoning By-law creates numeric standards to enumerate a range of compatible built forms within a designated area. In his opinion, the general intent and purpose of a zoning by-law is to ensure that new development does not cause unacceptable undue adverse impacts in a neighbourhood, and provided his opinion that this proposal meets this test and does not introduce an inappropriate building form.
131Mr. Benczkowski opined that the general intent and purpose of building length is to ensure the appropriateness of a dwelling for a particular lot. Mr. Benczkowski opined that the building length of 17.13 m, requiring a variance of 0.13 m for roughly half the width of the rear of the dwelling is essentially the thickness of a foundation wall. The first floor has a length of 15.3 m and the second floor has a length of 15.8m. An as of right multiplex could be built that would have each floor be 17 m in length, and there would not be a requirement for FSI, coverage, or rear yard setback variances. In other words, the proposal is less than what is permitted under the Zoning By-law. Mr. Benczkowski’s opinion is that the increase in length is entirely located below the first floor deck, which helps to mitigate any impact as the deck is permitted to project as proposed. I accept Mr. Benczkowski’s opinion on variance 1.
132In terms of variance 2, the stairway width is compliant. As noted previously in this decision, the variance is a placeholder for the portion below the front stairs, which is below grade. Mr. Benczkowski provided his opinion that the purpose of the variance as it stands (and not as the placeholder in which it is functioning in this case) is to limit the width of the front stairs from dominating the view of the property from the streetscape.
133Mr. Benczkowski stated that since there is no explicit exception in the Zoning By-law for what is below grade, the zoning examiner wanted to be as cautious as possible and interpreted the zoning by-law very conservatively. The interpretation is that the lack of express permission for excavation below stairs means that there’s a prohibition on excavation below stairs. This particular placeholder variance was identified as there is no other way to address the space beneath the front stairs.
134Mr. Benczkowski provided his opinion that there is no prohibition on concrete stairs and that these require footings below ground. In other words, there could be below grade work that would not require a variance. As noted above, the variance is required due to the excavated area with the furnace. Mr. Benczkowski’s opinion is that the general intent and purpose of the zoning by-law is met in this instance, and I agree.
135In addition, Mr. Benczkowski noted that the dwelling height now permitted for a multiplex is an extra 1 m higher than it previously was, at 10m. In other words, an increase in length and height for the property would be Zoning By-law compliant.
136Mr. Benczkowski’s opinion is that the intent of multiplex Zoning By-law is to permit buildings to be larger in size and massing. I agree with Mr. Benczkowski on this item.
137In conclusion, I accept Mr. Benczkowski’s opinion that the proposed variances individually and cumulatively maintain the general intent and purpose of the Zoning By-law.
Are the Variances Desirable for the Appropriate Development of the Land
138Mr. Benczkowski’s opinion is that the proposal is desirable for the appropriate development or use of the land. Mr. Benczkowski opined that provincial policy and the Official Plan promote incremental intensification for the rejuvenation of the housing stock.
139Mr. Benczkowski further opined that there is adequate transit infrastructure as the proposal is within an MTSA designated area. The proposal is a renovated multi-unit dwelling which appropriately implements recent changes to provincial policy, the Official Plan, and the Zoning By-law, which do not regulate FSI as it relates to multiplexes, and which speak to the desirability of multiplexes in the City and how this type of development is envisioned moving forward.
140Mr. Benczkowski also noted that the only portions for which the two variances are required are below ground and relate to the excavation below ground for the furnace room, and a 0.13 building length in the rear of the property. The proposal is for three high quality residential dwellings in a neighbourhood that is well serviced by transit and community services. There are parks, shopping, etc. all within walking distance.
141Mr. Benczkowski’s opinion is that the proposal will add to the existing housing stock in a desirable neighbourhood in a manner that does not impact the neighbourhood. Mr. Benczkowski opined that the dwelling could be longer and have greater height of right, which speaks to the appropriateness of the proposal.
142I agree with Mr. Benczkowski’s opinions as expressed above, and find that the proposal is desirable for the appropriate development and/or use of the land.
Are the Variances Minor
143The test for whether a variance is considered minor is whether there is an unacceptable adverse impact. Mr. Benczkowski provided his opinion that there are always impacts from new dwellings in an urban area. In his opinion, the impact of the requested variances do not push the limits of the Zoning By-Law and will provide a compatible built form with what is in the area. Mr. Benczkowski’s opinion is that the proposal is minor in nature both numerically and qualitatively. I agree and find that the proposal is minor in nature.
CONCLUSION
144In conclusion, I find that the two requested variances individually and cumulatively meet the four statutory tests outlined in section 45(1) of the Planning Act.
DECISION AND ORDER
145The Appeal is allowed and the variances requested, as modified before this Tribunal, and stated in paragraph 16 above, are approved, subject to the following two conditions:
a. That the dwelling be constructed in substantial compliance with the site plan and elevation drawings dated December 24, 2024 (Exhibit 5), which are attached to this decision.
b. That pursuant to SASP 826 at policy (b)(ix) a tree be planted in the rear yard of the property.
T. Kezwer Panel Member