Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
24 201979 S53 18 TLAB 24 201980 S45 18 TLAB 24 201981 S45 18 TLAB
2025 ONTLAB 330
DECISION AND ORDER
Issuance Date: May 9, 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): A. KAUCIS
Applicant(s): HYPHEN STUDIO
Property Address: 86 HARLANDALE AVE.
COA File No.: 24 136507 NNY 18 CO (B0019/24NY) 24 136504 NNY 18 MV (A0236/24NY) 24 136500 NNY 18 MV (A0237/24NY)
TLAB Case File No.: 24 201979 S53 18 TLAB 24 201980 S45 18 TLAB 24 201981 S45 18 TLAB
Hearing Date(s): January 9, 2025 March 21, 2025
Deadline Date for Closing Submissions/Undertakings:
Decision Delivered By: TLAB Vice-Chair: A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type First Initial. Last Name Representative
Applicant HYPHEN STUDIO
Appellant A. KAUCIS A. STEWART
Party CITY OF TORONTO S. MESSINA
INTRODUCTION AND CONTEXT
1The subject property is located at 86 Harlandale Ave (subject property). This Appeal arises from the Toronto Committee of Adjustment’s (COA) refusal of an application for a consent to sever and variances for the resulting lots.
2The purpose of the application is to sever the subject property into two lots, where two new, duplexed dwellings are to be located.
3The property is designated Neighbourhoods and zoned RD (f15.0; a550).
4The Applicant’s Disclosure identified that the Applicant was in the process of redesigning the proposal to reduce or eliminate variances and indicated that one of the revisions was to provide for rental dwellings in the basement of each house, noting that “This may result in the proposal being evaluated as duplexes in accordance with the City’s Multiplex Zoning By-law Amendment”.
5At the beginning of the Hearing, the City’s lawyer, Ms. Messina, advised that the City had not received the revised Zoning Notice or revised plans (reflecting the specific variance amounts and exact proposal) prior to the submission date for Expert Witness Statements.
6Mr. Romano, the Expert Witness in support of the Applicant’s appeal, included the revised Zoning Notice and plans in his Expert Witness Statement but Ms. Hedayat (for the City) did not have that information prior to the submission of her statement.
7I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation of the hearing of their evidence.
CONSENT REQUESTED
8CONVEYED PART 2
The proposed lot frontage is 7.62m.
The proposed lot area is 273.5m².
RETAINED PART 1
The proposed lot frontage is 7.62m.
The proposed lot area is 273.5m².
VARIANCES REQUESTED
9Part 1:
Section 900.3.10.(5), By-law 569-2013 The required minimum side yard setbacks are 1.8 m each side. The proposed east side yard setback is 0.61 m. The proposed west side yard setback is 1.07 m.
Section 10.5.40.60.(2).(B), By-law 569-2013 A canopy above a platform that complies with regulation 10.5.40.60.(1) may encroach into a required building setback to the same extent as the platform it is covering. The proposed canopy is over a platform that does not comply with regulation 10.5.40.60.(1).
Section 10.20.40.10.(2).(B)(i), By-law 569-2013 The permitted maximum height of all side exterior main walls facing a side lot line is 7.5 m. The proposed height of the side exterior main walls facing a west side lot line is 7.82 m. The proposed height of the side exterior main walls facing an east side lot line is 8.08 m.
Section 10.20.30.10.(1).(A), By-law 569-2013 The required minimum lot area is 550 m2. The proposed lot area is 273.5 m2.
Section 10.20.30.20.(1).(A), By-law 569-2013 The required minimum lot frontage is 15 m. The proposed lot frontage is 7.62 m.
Section 10.20.30.40.(1).(A), By-law 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 32.05% of the lot area.
Section 10.5.80.40.(3).(B), By-law 569-2013 Vehicle access to a parking space is from the street on which the lot fronts. The proposed vehicle access to a parking space is from the street on which the lot fronts.
Section 10.5.40.60.(1).(A), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first storey of the building above established grade, may encroach into the front yard setback if it is no closer to a side lot line than the required side yard setback. The proposed platform encroaches 1.68 m into the required front yard setback. The required side yard setback is 1.8 m, the east side yard setback to the first floor platform is 0.61 m.
Part 2:
Section 900.3.10.(5), By-law 569-2013 The required minimum side yard setbacks are 1.8 m each side. The proposed west side yard setback is 0.61 m. The proposed east side yard setback is 1.07 m.
Section 10.5.40.60.(2).(B), By-law 569-2013 A canopy above a platform that complies with regulation 10.5.40.60.(1) may encroach into a required building setback to the same extent as the platform it is covering. The proposed canopy is over a platform that does not comply with regulation 10.5.40.60.(1).
Section 10.20.40.10.(2).(A).(i), By-law 569-2013 The permitted maximum height of all side exterior main walls facing a side lot line is 7.5 m. The proposed height of the side exterior main walls facing a west side lot line is 7.88 m. The proposed height of the side exterior main walls facing an east side lot line is 7.62 m.
Section 10.20.30.10.(1).(A), By-law 569-2013 The required minimum lot area is 550 m2. The proposed lot area is 273.5 m2.
Section 10.20.30.20.(1).(A), By-law 569-2013 The required minimum lot frontage is 15 m. The proposed lot frontage is 7.62 m.
Section 10.20.30.40.(1).(A), By-law 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 32.05% of the lot area.
Section 10.5.40.60.(1).(A), By-law 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first storey of the building above established grade, may encroach into the front yard setback if it is no closer to a side lot line than the required side yard setback. The proposed platform encroaches 1.68 m into the required front yard setback. The required side yard setback is 1.8 m, the west side yard setback to the first floor platform is 0.61 m.
THE LEGISLATIVE AND POLICY FRAMEWORK
10Provincial 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.
11Provincial 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.
12Consent – 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 Planning 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).
13Variance – 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
ROMANO
14Mr. Romano was qualified as an Expert Witness and provided evidence in support of the Application.
15Mr. Romano’s Expert Witness Statement describes the proposal in paragraphs 27 to 32 (Exhibit 1). It notes the proposed lot frontages, lot areas, floor space index (FSI) and dwelling unit size. The description of dwelling unit sizes includes the areas for two units on each Part (proposed lot) but does not overtly identify the use as “duplex”.
16The subject property is located within a provincially identified1 Major Transit Station Area, which encourages more density, optimization of infrastructure, and increasing the number of potential transit users within walking distance of the station.
17The subject site is also located within the Sheppard-Yonge Protected Major Transit Station Area (PMTSA) and the implementing Site and Area Specific Policy (SASP 725)2 has been adopted by Council but not yet (at the date of Hearing) approved by the Province. A minimum density of 0.3 FSI or 3 units is prescribed for the subject site.
18Paragraph 28 of Mr. Romano’s Expert Witness Statement contains a table showing revisions to the variances that had been before the COA. Four variances have been eliminated from the request and others have been reduced.
19The Expert Witness Statement addresses relevant Official Plan Policies, including Official Plan Policy 4.1.5 which contains development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.
20It was Mr. Romano’s opinion that “With respect to the development criteria described in Policy 4.1.5, the Official Plan SASPs that apply to the Subject Site mean that no weight is to be given to the development criteria. …. the Subject Site’s location within the neighbourhood and the Neighbourhoods are not the same as the balance of the area. The Subject Site sits within a transitional area, beside the North York Centre and within the MTSA/PMTSA area, and the proposed multiplex is subject to the SASP policies. In my opinion, any consideration of the development criteria must be viewed through the lens of the Subject Site’s planning and physical context, including the Provincial and City defined MTSA/PMTSA policy framework.”
21Site and Area Specific Policy 826 (SASP 826)3, which addresses Multiplexes in Neighbourhoods, was referenced by Mr. Romano. The SASP sets out policies which are different from those in OP Policy 4.1.5 in order to accommodate multiplexes in Neighbourhoods.
22Mr. Romano addressed the consent criteria contained in s. 51(24) of the Planning Act.
HEDAYAT
23Ms. Hedayat provided evidence in support of the City’s position.
24Ms. Hedayat’s Expert Witness Statement was responsive to a proposal which predated the one that was under consideration at the TLAB as the City had not been advised of the changes to the proposal prior to the submission of her Expert Witness Statement.
25Ms. Hedayat relied on the criteria contained in Official Plan Policy 4.1.5 as the basis for her assessment of the proposal. She focused on criterion b) prevailing size and configuration of lots and d) prevailing building type. Under cross examination, Ms. Hedayat confirmed that she did not take issue with the built form of the proposal, but that her major issues were the lot frontage and the lot area.
26Ms. Hedayat’s testimony was that SASP 826 (for Multiplexes in Neighbourhoods) does not apply in this case and that the development criteria in OP Policy 4.1.5 apply.
ISSUES AND ANALYSIS
NOTICE OF REFINED PROPOSAL
27Ms. Hedayat was at a disadvantage in preparing her Expert Witness Statement as she did not know the dimensions and details of the requested variances that had formed the basis of Mr. Romano’s justification of the proposal.
28Ms. Messina did not formally object on the basis of the delayed information but wished to have it noted for the record that the City did not have this information in a timely way.
29The TLAB deadlines for submissions are intended to give all Parties and Participants ample notice of the details of evidence in order that comprehensive responses may be prepared. The late identification of the specific amount of the variances is problematic and could have compromised the preparation of the City.
30In this instance, the Hearing proceeded on the basis of the refined proposal identified on the ‘TLAB’ plans as the City did not object to this approach; the City’s primary objection was to the consent to sever the property and not the details of the built form; and as noted by Ms. Stewart (counsel for the Applicant), Ms. Hedayat could have responded to Mr. Romano’s Expert Witness Statement through a Response to Expert Witness Statement submission (and did not do so).
GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLAN
EMERGING POLICY FRAMEWORK
31Significant time in the Hearing was devoted to emerging policy frameworks, especially with respect to the City’s more recent Official Plan amendments to encourage modest intensification in Neighbourhoods.
32Mr. Romano referenced the PMTSA (intensification around major transit stations) policies and the Official Plan’s multiplex policies to support his planning justification of the proposal.
33In Mr. Romano’s opinion, the policies of section 4.1.5 of the Official Plan do not apply. The criteria for development listed in this section, in his opinion, would apply to development located exclusively within a Neighbourhood, but this proposal falls within a Protected Major Transit Station Area, and it should therefore be evaluated within the framework of the Council-adopted Yonge-Sheppard PMTSA (OPA 570/ SASP 725).
34In addition to the policy framework provided by the Yonge-Sheppard PMTSA polices, Mr. Romano relied on the policies of SASP 826 which provide an altered set of criteria for evaluating multiplex-related development.
35Ms. Hedayat’s opinion was that only the policies of the approved Official Plan were applicable since the Yonge-Sheppard PMTSA Official Plan Amendment was awaiting Provincial approval and was not yet in full effect. In her opinion, all of the development criteria contained in OP Policy 4.1.5 were to be applied to the proposed development.
36It was Ms. Hedayat’s opinion the approval of an Official Plan Amendment to allow policies to accommodate multiplexes in Neighbourhoods (SASP 826) did not eliminate the applicability of OP Policy 4.1.5 in this case.
YONGE-SHEPPARD PMTSA POLICIES
37I agree with Mr. Romano’s analysis and opinion that the Council-approved Yonge-Sheppard PMTSA polices are relevant and important. The amendment to the Official Plan may not yet be in full effect, but nonetheless City Council has approved the Official Plan Amendment.
38More importantly, municipalities are directed by the Provincial Planning Statement 2024 to “promote development and intensification within major transit station areas,” and this instruction holds sway no matter the status of provincial approval of the Official Plan Amendment for the Yonge-Sheppard PMTSA.
39The principal objective of encouraging greater population density and built density within Major Transit Areas and Protected Major Transit Station Areas is entrenched in Provincial Policy and Council direction.
40In the face of these policy directions, consideration of only the development criteria in OP Policy 4.1.5 is not sufficient.
41The Yonge-Sheppard PMTSA policies prescribe a minimum density of 0.3 floor space index (FSI) or 3 units for the subject site.
42Although the Zoning By-law does not apply a maximum floor space index requirement to the subject property and proposal, instead requiring a variance for lot coverage, Mr. Romano provided floor space information for the proposed two new duplexes.
43According to this information, the proposal would have an FSI of 0.66, well in excess of the minimum density prescribed under the Yonge-Sheppard PMTSA. Even if only one of the proposed duplexes were to be constructed on the existing undivided lot, the FSI would meet the minimum density prescribed in the PMTSA policy4.
MULTIPLEX AMENDMENT (OPA 649/ SASP 826)
44I concur with Mr. Romano that the Official Plan Amendment enabling multiplexes in all Neighbourhoods designations, implemented by means of a Site and Area Specific Policy, is the applicable set of development criteria to be applied in this case.
45The clear intent of the multiplex policy is to loosen some of the development criteria set out in OP Policy 4.1.5 in order to make more multiplex development possible.
46Table 1 sets out relevant extracts of the two sets of policies side by side.
Table 1: OP Policy 4.1.5 and SASP 826
47It is clear that in order to accommodate multiplex development in designated Neighbourhoods, the intent of SASP 826 is to amend, for these building types, the development criteria embedded in OP Policy 4.1.5. On this issue, I concur with the evidence of Mr. Romano.
48It is also clear, however, that some of the criteria which are established in OP Policy 4.1.5 remain intact and in force in the amended requirements of SASP 826. Particularly important is the criterion b) in both of the policy frameworks: prevailing size and configuration of lots. I note that the “prevailing” language of this requirement, as defined in OP Policy 4.1.5, has been carried forward into SASP 826.
IMPORTANCE OF DEVELOPMENT CRITERIA
49The position of the City can be distilled into the following assertion: severance of the subject property is not necessary for, nor justified by, the creation of multiplex dwellings. The City contests that the proposed severance does not further the expressed general intent and purpose of the overlapping goals of the Yonge-Sheppard PMTSA and the multiplex policy amendment (SASP 826).
50In his Expert Witness Statement, Mr. Romano disagreed with the City Planning report to the COA, in which staff advised that the dimensions of the lot “are not consistent with the adjacent lots…Staff are of the opinion the proposed consent to sever does not conform to the Official Plan policies and should be refused.”
51Mr. Romano’s opinion is that the staff report “reflects a narrow, confined view which is based on less than a handful of sub-policies of the official plan.”
52I recognize that in an environment of rapidly evolving policy change, it is challenging for staff, experts, panel members and TLAB members to find a balance between emerging policy goals and the pre-existing objectives of the Official Plan.
53The Official Plan sets out a vision for how Toronto will grow and change. It contains high-level aspirational policies that recognize and value the unique physical character of geographic neighbourhoods while also allowing for atypical development in the form of multiplexes.
54Within the full scope of policies related to Neighbourhood designations, however, development criteria are set out that are very directly intended to give greater specificity regarding the expectation for development in Neighbourhoods. While I acknowledge Mr. Romano’s advice that the emerging direction to accommodate more housing in neighbourhoods could be thought to de-emphasize the development constraints represented in OP Policy 4.1.5, I note that the criterion requiring consideration of prevailing size and configuration of lots was repeated verbatim in SASP 826.
55SASP 826 is the Official Plan’s clearest expression of the expectations for balancing greater accommodation for multiplexes in Neighbourhoods with existing expectations for development in Neighbourhoods. I conclude that the continuation of the criterion regarding prevailing size and configuration of lots into SASP 826 is a purposeful intent to which multiplex development is subject.
APPLICATION OF ‘PREVAILING SIZE AND CONFIGURATION OF LOTS’ CRITERION
56In his oral testimony, Mr. Romano opined that the criterion of prevailing size and configuration of lots is a different test under SASP 826 than it is under OP Policy 4.1.5 because it is aimed at maintaining low rise built form rather than the intent to respect and reinforce physical character that is the aim of OP Policy 4.1.5.
57I agree with Mr. Romano that the articulated intent of the combined policies of SASP 826 is to maintain a low rise built form, and the overall intent of OP Policy 4.1.5 is for development to respect and reinforce existing physical character. I do not agree, however, that this changes the application of the criterion. The different intent of SASP 826 is achieved to a great extent by the elimination of the test of prevailing heights, massing, scale, density and dwelling type that is entrenched in OP Policy 4.1.5 and through the amendment or inclusion of other criteria.
58A careful reading of both sets of policies shows that the criteria in each are articulated as a set of controls, by means of which the overall goal of the policy is achieved. In other words, for SASP 826, the direction is that development of multiplexes will maintain the low rise built form of each geographic neighbourhood, including, in particular, maintaining the prevailing size and configuration of lots.
59In either set of policies, while the overall intent for development might be slightly different, I find that the application of the criterion regarding prevailing size and configuration of lots remains exactly the same. It is one of the controls that is common to both policy objectives and is intended to play a part in achieving development that respects and reinforces existing character as well as the achievement of a low rise form in the case of multiplexes.
CONSENT TO SEVER APPLICATION
60For the TLAB to grant a consent to sever land, it must have considered the criteria set out in s.51(24) of the Planning Act. (These criteria are listed in THE LEGISLATIVE AND POLICY FRAMEWORK section above).
61A consent to sever land is the legal process of dividing a single property into two or more separate legal parcels of land. This process is governed by section 53 of the Planning Act and is subject to the criteria set out in s.51(24) of the Act (listed in the LEGISLATIVE AND POLICY FRAMEWORK section above).
62Of 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.
63I 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.
64I note at this juncture that the creation of lots via a consent to sever application is an application separate from any application for variances. Applications for variances associated with an application for consent to sever are generally considered by the COA and the TLAB at the same time for reasons of efficiency and because the built form proposal related to the variance application provides a demonstration of the viability and functionality of the proposed resulting lots. This is especially the case where variances for lot frontage and lot area are required.
65Ultimately, though, consideration of a consent to sever application rests primarily on the dimensions, area, and configuration of the proposed lots, since, if the consent is approved, the created lots exist independently and are not tied to the particular design or built form proposed.
66In other words, the policies of SASP 860 are aimed at multiplex built form (duplexes, triplexes etc.); the approach does not contemplate “multiplex lots”.
67Part of Mr. Romano’s testimony at the Hearing involved a description of a townhouse/ fourplex development that could happen on the site “as of right”. This coincides with the City’s assertion that a severance is not required to achieve multiplex development on the subject property.
68It was Mr. Romano’s opinion that in a choice between a fourplex/ townhouse type of development and what is proposed by his client, the proposed development is more desirable and has more features that are compatible with what occurs within the block and neighbourhood. The question that remains, however, is which of the two forms of multiplex development discussed are the aim of the multiplex policies of SASP 826 and therefore which is “more” desirable.
69For the reasons above, I accept the City’s contention that severances are not overtly a strategy that is part of the Official Plan approach to accommodate more multiplexes in Neighbourhoods. I agree with the City’s position that the application for consent to sever the subject property is subject to the same threshold whether it is related to a detached single dwelling or to a multiplex: do the proposed lots respect the prevailing size and configuration of lots in the geographic neighbourhood?
70The Zoning By-law implements the direction of the Official Plan with respect to prevailing size and configuration of lots by establishing minimum lot frontages and minimum lot areas. Variances for both lot frontage and lot area are required for both proposed lots.
PREVAILING SIZE AND CONFIGURATION OF LOTS
71In considering the prevailing size and configuration of lots in the geographic neighbourhood, both Experts relied on analysis of lot frontages and lot areas.
72Both Expert Witnesses identified a geographic study area. Although described slightly differently, both study areas capture the same residential lots and provide the same basis for neighbourhood analysis of lot frontage and area. (Ms. Hedayat identified a total of 390 residential lots in the geographic area and Mr. Romano identified 388).
73R. Romano’s advice regarding prevailing size and configuration of lots is as follows:
“Prevailing size and configuration of lots.”
The Subject Site sits within a Neighbourhoods area where the broader context consists of a varied rectangular lot fabric with lot sizes ranging from 7.49m to 20.2m lot frontage and 272m2 to 710.1m2 lot area, with 29.4% (114 of 388 properties) being less than 15m lot frontage, and 97.7% (379 of 388 properties) being less than 550m2 in lot area. The makeup of the lot sizes consists of many different lot dimensions.
The Subject Site’s same block or an immediate proximity (Harlandale Avenue from Bangor Road to Beecroft Road) contains rectangular lot configurations where lot sizes range from 7.6m to 15.2m, with 26.1% (6 of 23 properties) being less than 15m lot frontage, and 272m2 to 544m2 lot area, with 100% (23 of 23 properties) being less than 550m2 lot area. Lot sizes are not uniform.
The proposal respects and reinforces the prevailing lot size and configuration of lots. The proposal conforms to this criterion.
74The analysis in this section of Mr. Romano’s Expert Witness Statement addresses the prevalence of lot areas and frontages that are below the minimums prescribed in the Zoning By-law. This analysis tells me that the vast majority of existing lots in the geographic neighbourhood do not meet the minimum lot area standard, and 29.4% do not meet the lot frontage minimum standard set in the By-law.
75While Mr. Romano’s summary analysis provides some understanding of the distribution of lot sizes in the neighbourhood, it relates to the relevance of the By-law standard, not to the test of prevailing lot sizes. The definition of “prevailing” as articulated in OP Policy 4.1.5, and which carries into SASP 826, is “most frequently occurring”.
76What is necessary to meet the test of prevailing lot sizes is an understanding of the most frequently occurring frontages and lot areas in the area and whether the reduced lot frontages and areas proposed are similar to what exists in the neighbourhood. The requested variances are for frontages of 7.62m and lot areas of 273.5m2. Are these dimensions within the prevailing range of existing lot sizes in the neighbourhood?
LOT FRONTAGE
77Ms. Hedayat and Mr. Romano both identified seven lots that have frontages less than or equal to the requested frontage. Ms. Hedayat describes this as “a small portion of the area’s total of 390 lots”.
78Figure 1 below is extracted from Mr. Romano’s Neighbourhood Context Map 3 and displays the distribution of lot frontages in his geographic area. It is clear from this data that the most frequently occurring lot frontages are in the range of 15.18m to 16.68m (68.8% by my calculation). While approximately 20% of lots in the total area have frontages between 12.16m and 15.18m, and could be considered represented in significant numbers, the seven lots that are less than or equal to 7.62m are clear outliers in the distribution. I do not find lot frontages less than or equal to 7.62m exist in substantial numbers in the geographic neighbourhood and I do not find them to be “prevailing” in the geographic neighbourhood.
[79]
Figure 1: Romano Expert Witness Statement, Map 3 Legend, EX1, page 131
LOT AREA
80Mr. Romano did not provide a similar distribution of lot areas as he did for lot frontages (although he did provide mapping of the lot areas below the By-law minimum). The burden rests with the Applicant to satisfy the TLAB that the proposal meets the requirements of the Official Plan, and an analysis of the prevailing lot areas would have been a necessary part of the justification in this case.
81I have included here Ms. Hedayat’s table showing distribution of lot areas (extracted below in Figure 2).
[82]
Figure 2:Hedayat Expert Witness Statement page 20, EX 3
83While the data above shows that the distribution of lot areas is perhaps more even than for lot frontages in this neighbourhood, the most frequently occurring range is for lots greater than 500m2 (71%). 22 lots, or 5.6% of the total number, have a lot area less than 370m2 and none have an area less than 270m2. If Ms. Hedayat’s analysis is to be relied on, it shows that the proposed lot areas are not within the prevailing lot areas in the geographic neighbourhood.
84I find that while the duplex built form proposed in this case meets many of the goals of the Official Plan, the lot frontages and lot areas resulting from the proposed severance have not been shown to meet the criterion of prevailing size and configuration of lots that is stipulated in SASP 826. (They have also not been shown to meet the same criterion under OP Policy 4.1.5 b)).
85For the above reasons, I find that the requested variance for lot frontage and lot area do not maintain the general intent and purpose of the Official Plan and for the same reasons I find that the proposed lot frontage and lot area do not meet criteria (c) and (f) in s.51(24) of the Planning Act for the approval of a consent to sever.
GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW
VARIANCES
86The variances requested for lot coverage, side yard setbacks, platform and canopy encroachment, side exterior main walls and vehicle access from a frontage street were not at issue in this Hearing.
87The duty remains with the TLAB to be satisfied that the requested variances meet the four statutory tests for approval of variances.
88In response to a question under cross-examination, Mr. Romano did not agree with the suggestion that “if the consent fails, the associated minor variances also fail”. Mr. Romano’s advice was that some of the variances associated with the totality of the building footprint could be associated with the perimeter of the entire lot, and so could fit with the existing property. He also suggested that he could envision the side wall heights without the consent.
89There are complexities inherent in considering the remaining variances when the consent to sever and lot frontage and area variances have been refused.
90Firstly, there are two applications for variances, each for a proposed half of the existing property. The intact existing property is not the subject of the variance applications.
91In addition, the remaining variances have been justified on the basis of two independent structures. The regulatory requirements for two residential structures on one lot, such as those in place for garden suites or laneway houses, have not been explored with respect to this proposal/ property. (Two duplexes on one lot are not considered to be a fourplex. A fourplex is defined as a single building with four dwelling units).
92Some of the evidence heard in support of the applications for variances might be applicable to a scenario where only one of the proposed duplexes is maintained on the existing property, but this is not a viable basis for approving a variance for coverage and, in the end, constitutes a very different proposal than that which was circulated for notice under s.45(18.1) of the Planning Act.
93Ultimately, I find that the proposal is not viable in its submitted form if the consent to sever and the variances for lot area and lot frontage are not approved. Construction of the proposal is not possible without substantial change and a regulatory review. None of the variances will be approved on a standalone basis in absence of a viable design for the unsevered lot that the approvals can be tied to.
94I am not satisfied that the variances, individually and cumulatively, maintain the general intent and purpose of the Zoning By-law.
DESIRABLE FOR THE DEVELOPMENT OF THE LOT
95There is much to appreciate in the design that was submitted in the variance applications. The design of the duplexes has been carefully considered and the built form features, in principle, respect the neighbourhood character. The division of lots into smaller parcels, however, has not been supported in emerging policy as a means to achieve more dwelling units in neighbourhoods.
96The discussion in the Hearing about whether a fourplex form of development is less desirable than the two duplexes proposed is somewhat moot. Duplexes and fourplexes are both forms which are to be encouraged under the new policy regime. A fourplex form may well achieve more of the objectives of SASP 826, but the applicant is free to propose a development that meets the threshold of good planning.
97I concur with the City’s position at the Hearing that a severance is not justified on the basis that it would result in additional units within the neighbourhood as per SASP 826. The essential purpose of SASP 826 is to generally allow a greater number of dwelling units on individual properties and this aim can effectively be achieved on the subject property without severance, specifically as a result of SASP 826.
98In other words, a severance into two smaller lots does not directly enable multiplex development and while a severance could result in an increase in units in comparison to a single detached single family home on the subject property, it would limit the potential for other types of multiplex development (fourplex) on the subject property.
MINOR
No undue adverse impact of the variances was raised during the Hearing.
CONCLUSION
99The duplex form of development does not offend the Official Plan policies and is supported by the emerging policy of both SASP 826 (multiplex amendment) and SASP 725 (Sheppard-Yonge Protected Major Transit Station Area (PMTSA)).
100The proposed severance and variances for lot frontage and lot area would result in lots which do not maintain the prevailing size and configuration of lots in the neighbourhood. I have therefore found that the variances for lot frontage and lot area do not maintain the general intent and purpose of the Official Plan. Having found so, and for the same reasons, I find that the proposed severance does not meet criteria c) and f) of s. 51(24) of the Planning Act for the approval of consents to sever.
101I have found that the requested variances, individually and cumulatively, do not meet the general intent and purpose of the Official Plan and the Zoning By-law. Failure to meet these two tests is sufficient for the applications for variances to fail as applications for variances must meet all four tests of s.45(1) of the Planning Act.
DECISION AND ORDER
102Consent to sever the subject property is not granted.
103The requested variances are not authorized.
104The Committee of Adjustment Decisions (File Nos. B0019/24NY, A0236/24NY), and A)237/24NY), dated August 1, 2024, are confirmed.
A. Bassios
Panel Member