Karimi (Re), 2025 ONTLAB 332

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-04-22

24 212429 S45 03 TLAB

Karimi (Re), 2025 ONTLAB 332

FINAL DECISION AND ORDER

Issuance Date:

May 15, 2025

PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

M. KARIMI

Applicant(s):

IN ROADS CONSULTANTS

Property Address:

200 BERRY RD

COA File No.:

24 164381 WET 03 MV (A0244/24EYK)

TLAB Case File No.:

24 212429 S45 03 TLAB

Hearing Date(s):

April 22, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

IN ROADS CONSULTANTS

Appellant

M. KARIMI

M. NEMANIC

Participant

M. BANIK

Participant

M. BANIK

Participant

M. DANCHYSHYN

INTRODUCTION AND CONTEXT

1This Hearing arises from an appeal by Mohammad Karimi (Owner/Appellant) of the decision by the Etobicoke York Panel of the City of Toronto (City) Committee of Adjustment (COA) to refuse an application for variances for the property municipally known as 200 Berry Road (subject property).

2The Appellant applied for four (4) variances in total from City Wide Zoning By-law 569-2013 to permit the construction of a new fourplex with an integral garage on the subject property.

3The subject property is located on the northeast corner of Berry Road and Ballacaine Drive in the Stonegate-Queensway Neighbourhood in the former City of Etobicoke.

4The subject property is designated ‘Neighbourhoods’ in the City Official Plan (OP) and zoned Residential Detached RD (f 13.5; a510; d0.45)(x42) under Zoning By-law 569-2013.

5The Applicant (In Roads Consultants) sought approval for four (4) variances related to the required side and rear yard setbacks, dwelling length, and the maximum permitted height of all exterior main walls facing a side lot line.

6On August 29, 2024, the COA refused the Application and Mr. Karimi appealed the COA’s decision to the Toronto Local Appeal Body (TLAB). The TLAB set a Hearing date for April 22, 2025, the hear the matter.

7Three (3) people are identified on the TLAB’s List of Appellants, Parties, Participants and Legal Representatives (Peoples List) for this Appeal. This List includes the Appellant, his legal representative, Michael Nemanic, and his expert planning witness, Kathy Kakish.

8It also includes Michael Banik and Michelle Banik, as well as Michael Danchyshyn. All three initially elected Party status pursuant to Rule 12 of the TLAB’s Rules of Practice and Procedure (Rules) but subsequently changed their status to ‘Participants’ before the Hearing.

9While Mr. and Mrs. Banik’s change in elected status was within the TLAB’s Rules, Mr. Danchyshyn’s change in status from Party to Participant occurred after the established due date in the Notice of Hearing (Form 1) for electing such status.

10As a result, the presiding Panel Member issued an oral ruling at the Prehearing Conference held in this Appeal matter on March 20, 2025, regarding Mr. Danchyshyn’s continued participation in the Hearing. That decision is referenced below, under the subheading “Prehearing Conference’.

Prehearing Conference

11Prior to the Hearing, the TLAB scheduled a ‘virtual’ Prehearing Conference (PHC) on March 20, 2025. Rule 21.6 of the TLAB’s Rules permits the Tribunal to arrange a PHC to address various matters such as procedural issues, admissions, and facts and evidence related to the subject Appeal that might simplify the forthcoming Hearing.

12One topic raised by the presiding Panel Member was the matter of whether the parties had any interest in engaging in TLAB-led, confidential and non-binding mediation.

13Mr. Nemanic, the Appellant’s legal representative, advised the TLAB that although private discussions had occurred between Mr. Karimi and Mr. and Mrs. Banik, a resolution had not been reached and, therefore, the Appellant saw no benefit in any TLAB-led mediation.

14This position was also echoed by both the Baniks and Mr. Danchyshyn.

15As a result, the PHC concluded with the Appellant and the Participants agreeing that the matter would proceed to the April 22^nd Hearing and be heard as a contested appeal.

16Regarding Mr. Danchyshyn’s status in the Appeal, Mr. Nemanic confirmed that the Appellant had no objection to Mr. Danchyshyn’s continuing involvement in the Proceeding as a “Participant’. With this acknowledgement, and on the consent of the parties, the presiding Panel Member issued an oral ruling at the PHC confirming Mr. Danchyshyn’s status.

17Following the PHC, the TLAB issued an Order, dated March 27, 2025, to this effect, reaffirming the scheduled Hearing date and confirming the presiding Panel Member as seized of the matter.

The TLAB Appeal

18The COA’s circulation of the Appellant’s application generated comments from City Staff. In an August 22, 2024, Report, Community Planning Staff initially raised concerns related to the proposed building wall heights for the fourplex and relayed these concerns to the Appellant.

19As a result, prior to the COA meeting, the Appellant revised his plans, incorporating design improvements such as ‘softening’ the slope of the roof on the proposed fourplex to lessen the impact of the dwelling’s massing on adjacent properties, as well as through “…significant improvements to the Berry Road elevation to be more in keeping with the general character of the neighbourhood.”¹

20These revisions satisfied concerns raised by Community Planning Staff, who expressed no further opposition to the proposal.

21In a Memorandum dated August 22, 2024, Urban Forestry Staff recommended a standard condition related to the requirement for a permit to injure or remove privately owned trees, if the application was to be approved.

22The COA refused the application on August 29, 2024, and Mr. Karimi appealed the decision to the TLAB which set a Hearing date for April 22, 2025.

23The Appellant is requesting that the TLAB authorize the following four (4) variances to permit the construction of a fourplex on the subject property:

REQUESTED VARIANCES TO THE ZONING BY-LAW

1. Section 10.20.40.70.(3)(C), By-law 569-2013

The minimum required side yard setback is 1.2 m.

The proposed dwelling will be located 0.92 m from the north side lot line.

2. Section 10.20.40.70.(2)(B), By-law 569-2013

The minimum required rear yard setback is 9.28 m.

The proposed dwelling will be located 8.42 m from the rear lot line.

3. Section 10.20.40.20.(1), By-law 569-2013

The maximum permitted dwelling length is 17 m.

The proposed dwelling will have a length of 17.42 m.

4. Section 10.20.40.10.(2)(A)(i), By-law 569-2013

The maximum permitted height of all side exterior main walls facing a side lot line is 7.5 m. The proposed dwelling will have a side exterior main wall height of 8.25 m, facing a side lot line.

THE LEGISLATIVE AND POLICY FRAMEWORK

24Provincial 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.

25Provincial 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.

26Variance – 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

27A summary of evidence is presented here for the purpose of providing some context for the following sections of this Decision. All of the evidence and testimony in this matter have been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined in the Issues and Analysis section below.

Expert Witness Kakish

28Ms. Kathy Kakish was qualified by the TLAB as an Expert in land use planning and she provided evidence in support of the Application.

29She identified a Geographic Neighbourhood (Neighbourhood Study Area) describing both a Broader and Immediate Context as directed by the Official Plan; she characterized the neighbourhood as follows:

• The neighbourhood has a mature, stable neighbourhood that has experienced modest redevelopment, including the construction of new, 2-storey single detached houses;

• The Broader neighbourhood is “distinctly suburban in character” consisting of older, low-rise and mid-rise apartment buildings, and single detached bungalows, many of which have been renovated and redeveloped over the years;

• While two-storey residential dwellings are permitted, the majority of the homes in the neighbourhood are bungalows, featuring large, irregularly shaped lots with tight side yard setbacks and generous rear yard setbacks;

• The neighbourhood is characterized by reduced side yard setbacks that are significantly smaller than what is being proposed.

• The Immediate Context is characterized by brick bungalows and low-rise detached residential dwellings constructed in the 1940s and 50s, on wide lots with private driveways and garages;

• The community has experienced changes due to various infill projects; for example, in recent years, existing bungalows at 190, 192, and 194 Berry Road, immediately east of the subject property, have been redeveloped into larger, 2-storey single detached dwellings.

The Proposal

30Ms. Kakish reviewed the proposal, first describing the shape of the lot and the architectural aspects of the proposed fourplex.

31The subject property currently contains a one-storey bungalow that will be demolished and replaced with the proposed fourplex.

32She described the subject lot as irregularly shaped with a narrow frontage along Ballacaine Drive, widening to a shape she described as being “like a half pie.” The lot has flankage along Berry Road. (Fig. 1, Site Plan)

Figure #1 – Site Plan – 200 Berry Road

33In addressing the architectural features of the proposed fourplex, Ms. Kakish noted that the building appears as a detached, two-storey dwelling featuring a traditional brick exterior, which has been enhanced with architectural detailing that invokes “the charm of a grandfather clock,” Particularly around the main entrance facing Berry Road.

34The design incorporates an integral garage within the south elevation designed in a “carriage house” style with a board and batten appearance to compliment the character of the overall architecture.

35The integral garage will accommodate two (2) cars, which Ms. Kakish noted was similar to other 2-car garages in the area; additional vehicular parking will be available within the driveway facing Berry Road.

36The roof design of the fourplex incorporates a “mansard-styled” roof with a “gentle pitch” which Ms. Kakish noted was intended to soften the building’s profile and reduce its visual massing.

37As the name suggests, the fourplex proposes four (4) individual dwelling units; 3, two-bedroom units and 1, three-bedroom unit. The largest unit, Unit #1, will be located on the first floor (relatively at grade) and have three (3) bedrooms, one of which will be situated above the garage.

38Regarding the other proposed units, consisting of two bedrooms, Unit #4 is slightly below grade, and Units #2 and 3 are on the second floor.

39The main floor, shared entrance to the fourplex, facing Berry Road, leads to a central stairwell that provides access to all of the units. Each of the upper units also has a secondary entrance accessed by a wooden deck and stairs along the side and rear elevations.

40Fenestration is incorporated into the front (Ballacaine Dr.) elevations, as well as on the Berry Rd. and rear elevations. Ms. Kakish asserted that the windows on the north elevation facing Minden Crescent have been limited and strategically placed.

41The Ballacaine Drive elevation includes sliding doors for secondary access and a private deck at grade for use as an outdoor amenity space.

Planning Analysis

42Ms. Kakish addressed the proposed fourplex from the perspective of provincial policy, discussing relevant sections of the Provincial Planning Statement, 2024 (PPS) and how the proposal has regard for matters of Provincial Interest as expressed in Section 2 of the Planning Act.

43The PPS supports the achievement of complete communities through an appropriate range and mix of land uses and housing options (s. 2.1.6) in proximity to public transit; s. 2 of the Planning Act supports the adequate provision of a full range of housing, including affordable housing, in an appropriate location for growth and development.

44She asserted that the proposed fourplex provides an opportunity to increase available housing stock options, including generously sized units, in the Stonegate-Queensway neighbourhood while at the same time respecting the type of low-rise development which accommodates modest intensification.

45She also opined that the subject property is an appropriate location for modest, infill redevelopment in this neighbourhood, with the type of built form the fourplex represents.

46In her opinion, therefore, the proposal is consistent with the PPS and has appropriate regard to the matters of Provincial Interest, particularly Sections 2(j), 2(p), and 2(r).

47Ms. Kakish then turned her attention to the Official Plan. She noted that Policy 4.1.5 of the OP includes a policy test that requires development in Neighbourhoods to “respect and reinforce the existing physical character of each geographic neighbourhood.”

48She noted that on March 10, 2023, the City of Toronto adopted Official Plan Amendment 649 (OPA 649), which was enacted as Site and Area Specific Policy 826 (SASP 826).

49SASP 826 amended Chapter 7 of the OP to encourage the construction of multiplexes in Neighbourhoods; the preamble reads as follows:

“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.”²

50She opined that in recognition of SASP 826’s objective that well-designed multiplexes can offer additional housing options in Neighbourhoods while being compatible with the existing low-rise context, it provides that multiplexes are permitted despite the policy test provided in s. 4.1.5 of the OP.

51In this regard, she interpreted SASP 826 as not requiring the proposed fourplex to meet the s. 4.1.5 policy test, which is to ensure that new development in Neighbourhoods respects and maintains the existing character of the neighbourhood.

52Ms. Kakish opined that the proposed fourplex respects and reinforces the character of the Stonegate-Queensway Neighbourhood as it relates to prevailing height, massing, scale, density, dwelling types, location, design, elevations, setbacks, but not as it relates to building type, since fourplexes are not a prevailing housing type in the subject neighbourhood.

53Nevertheless, she opined that while fourplexes are not a prevailing housing type in this neighbourhood and do not maintain the general intent and purpose of Policy 4.1.5 d) of the Official Plan, the proposed fourplex is not required to meet this policy test because of the City’s adoption of SASP 826.

54She highlighted the Preamble of SASP 826 noting that it indicates that its policies apply to the development of new fourplexes despite Policy 4.1.5.

55She opined that the policy tests found in SASP 826 which permit multiplexes (including fourplexes) are more “flexible,” arguing that instead of requiring the majority of the fourplex’s proposed performance standards to conform to the prevailing neighbourhood character, the low-rise built form of the neighbourhood must instead be maintained.

56SASP 826 requires new multiplexes to meet the following requirements:

b) 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;

b) prevailing size and configuration of lots;

c) prevailing setbacks of buildings from the street or streets;

d) maximizing contiguous soft landscaping within front and rear yard setbacks that is supportive of maintaining and expanding the urban tree canopy;

e) conserving heritage properties and heritage conservation districts; and

f) special landscape or built-form features of the geographic neighbourhood;

ii. is encouraged to include large units, and should include at least one unit that contains multiple bedrooms;

iii. will provide entrances that are safely accessible from the street, which may be located at the front, side or rear of the building;

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;

v) is encouraged to salvage and/or reuse existing building materials and/or foundations;

vi) is encouraged to provide green roof areas, solar panels, and low carbon building materials, and to ensure any parking spaces are designed to permit future electric vehicle supply equipment;

vii) will minimize privacy impacts between adjacent dwelling units;

viii) will integrate with existing grades at the property line; and

x) is encouraged to expand the urban tree canopy through the planting of a new tree on a lot with a multiplex.

57Ms. Kakish asserted that the proposal will not alter the conditions described in a), b), c), e), and f) listed in criteria b)(i) of SASP 826.

58In reference to b)(i)d), the proposal includes front and rear setbacks designed to accommodate and preserve the existing large trees, which the Appellant has committed to maintaining throughout the construction of the fourplex.

59Ms. Kakish noted that the Appellant retained an arborist, Options Design and Build Inc., who completed and submitted an Arborist’s Report (dated June 17, 2024) as part of its COA application.

60That Report indicates that one tree will be removed due to its health; however, she also noted that the Appellant will retain four (4) of the five (5) large mature trees on the subject property. Appropriate hoarding will be installed as per the City of Toronto Tree Protection Zone (TPZ) guidelines.

61To secure this commitment, the Appellant proposes that a standard TLAB condition that requires a permit to injure or remove a private tree be included in a final decision and order if the variances are granted.

62In support of the proposal, Ms. Kakish’s evidence was as follows:

• The fourplex incorporates large units, consisting of two and three bedrooms (Section b)(ii);

• Each unit has a separate entrance (Section b)(iii);

• Only one tree will be removed due to its health (Section b)(iv);

• Appropriate private fencing and existing mature trees on the property will be maintained and offer privacy to adjacent dwellings (Section b(vii);

• The proposal maintains existing grades (Section b)(viii)

• As required by the provisions of the City’s Private Tree By-law, the Appellant will compensate for the loss of the unhealthy trees by planting a 60mm calliper red maple shade tree in the rear yard.

63Ms. Kakish referenced the mapping and photographic evidence in the Appellant’s Document Disclosure (Exhibits 2 & 3) to illustrate the neighbourhood’s existing physical character and to address the requested variances.

64She noted that the location of the proposed fourplex on the subject property was revised to be consistent with comments received from City staff, especially as it relates to maintaining generous “street-side” setbacks, representing a reasonable compromise that is now before the TLAB.

65For example, she asserted that the proposed 0.92m side yard setback variance remains appropriate and consistent with the existing built form.

66To arrive at this opinion, she undertook what she termed a “jurisdictional scan” of 80 properties in the neighbourhood (consisting of 66 interior lots and 14 corner lots) which revealed that 71% of the corner lots had interior side yard setbacks less than the required 1.2m minimum.

67In Ms. Kakish’s evidence, a “jurisdictional scan” was terminology to explain that she reviewed the lots within her Neighbourhood Study Area (NSA).

68She further testified that the fourplex’s orientation was revised to be consistent with comments from City staff and represented a “trade-off” as it related to maintaining generous “street-side” setbacks, consistent with SASP 826.

Variances #s 1-3 – 200 Berry Road

69She asserted that the proposed variance for the increase of 0.45m in the building length is, in fact, a technical variance and, in her opinion, minimal. While the actual maximum building length complies with the as-of-right 17m maximum permitted, for zoning purposes, it is required to be measured as being 17.42m from the mid-point of the subject property.

70This is due to the irregular shape of the lot and the fourplex’s 90-degree orientation on the subject property, which increases the building length by an additional 0.45m for the purposes of the Zoning By-law.

71Ms. Kakish submitted that the irregular shape of the subject property presented challenges to the Appellant in positioning the proposed fourplex. In order to maintain the front and side setbacks, the rear yard setback was reduced by 0.86m.

72Of the lots she surveyed in her jurisdictional scan, 71% of corner lots had rear yard setbacks less than the minimum 9.28m required, which she asserted was consistent with the neighbourhood’s character.

73Regarding the variance sought for sidewall building height, Ms. Kakish explained that the Appellant adjusted the roof slope and eaves of the multiplex, introducing a mansard roof to minimize the visual impact of the building on neighbouring properties.

74She also noted that the total proposed building height of 9.57m for the fourplex is less than the 10m maximum height allowed in the RD zone (Fig. #2 – Front Elevation).

Figure #2 – Front Elevation (main Wall Height) – 200 Berry Rd.

75Concerning the remaining two statutory tests, ‘Appropriate’ and ‘Minor’, Ms. Kakish opined that the number of requested variances related to sidewall height, building length, side yard and rear yard setbacks is appropriate for the land and will provide additional and much-needed housing units.

76She further opined that the proposed fourplex would not result in any adverse impacts of a planning nature, given that the Appellant had taken steps to design the fourplex to mitigate any privacy or overlook impacts on adjacent properties.

Participants Michael and Michelle Banik

77The Baniks submitted a joint Participant’s Statement to the TLAB on February 28, 2025; at the Hearing, Ms. Banik spoke on behalf of both herself and her husband.

78Ms. Banik noted that their property, at 1 Minden Crescent, is located immediately north of the subject property and shares a mutual property line, and that she and her husband have lived there for almost 13 years.

79She explained that given the direct impact of the proposed fourplex on their property, they initially elected Party status in the Appeal. In doing so, they also retained both a planning expert and a solicitor to engage in discussions with the Appellant, hoping to reach a mutually agreeable settlement of the issues in dispute.

80When this failed, they decided to amend their status in the Appeal from Party to Participant and reaffirmed their opposition to the proposal via their Participant Statement.

81The Banik’s concerns with the proposed fourplex are concentrated within the following three headings: privacy & overlook, sun shadow, and density.

82Ms. Banik stated that the location of the reduced north side yard, as proposed by the Appellant, and the proposed fourplex’s interface with her property will generate “tangible impacts of a planning nature.”³

83While the current setback of both the Banik’s property and the existing home on the subject property, taken together, equals 9.22m, the siting and orientation of the proposed fourplex will bring that structure considerably closer to the Banik’s rear yard.

84In Ms. Banik’s opinion, this will further compromise their access to, and enjoyment of their rear yard amenity area, resulting in adverse impacts related to privacy and overlook.

85Furthermore, the reduced interior setback, and the proposed 1^st and 2^nd storey unit windows, along with 2^nd-storey doors to the upper-level units, on the north-facing elevation of the fourplex, will create an unacceptable condition not previously existing.

86She contended that this would create views directly onto their rear deck and patio from the fourplex.

87She stated that the massing of the proposed fourplex would also result in additional impacts through the reduction of sunlight in their rear yard. She submitted that the proposal would create new shadowing for “large portions of the day, limiting the family’s enjoyment of our outdoor private.”⁴

88Regarding the massing of the proposed fourplex, she stated that while she supports multiplex housing in general, she submitted that these housing forms should be implemented in a way that is gradual and sensitive to the context. The proposal, she argued, fails to do this.

89She submitted that the redevelopment of the subject property, which proposes a fourplex, whereas a single detached residential dwelling exists today, will result in an intensification of the property with a type of built form that does not exist in the neighbourhood and which fails to realize a compatible relationship to the low-rise residential character of the area.

90Ms. Banik concluded by noting that while she is not opposed to change and growth, the TLAB should dismiss the Application.

Participant Danchyshyn

91Mr. Danchyshyn’s statement was much shorter than Mrs. Banik’s. While he shared the Baniks’ concerns that the proposal is out of character for the neighbourhood, and the massing of the proposed building will result in decreased sunlight on his property, he also raised concerns about potential increased traffic from the additional units in the fourplex as well as an increase in noise from new tenants.

ISSUES AND ANALYSIS

92At issue here is the redevelopment of the subject property with a fourplex, the first in the neighbourhood, where a single detached bungalow currently exists.

93More importantly, however, at issue is whether the four (4) variances requested by the Appellant constitute good community planning resulting from the application and direction of the relevant statutory considerations listed above.

94The task of the TLAB is not one of a test of feasibility; rather, it is the application of policy direction and evidence to the attributes of the site and its surroundings, variously defined.

95Ms. Kakish’s evidence was thorough and compelling. I accept her testimony and evidence that, although the PPS is a high-level provincial policy document, the Application is consistent with its policy objectives, expressed as applicable generally across the province.

96I also accept that the proposal implements several key higher-level Provincial policy objectives, including the efficient use of available land and infrastructure, and contributes to the range and mix of housing options available in the neighbourhood.

OFFICIAL PLAN

97In addressing whether the Application and the requested variances maintain the general intent and purpose of the Official Plan, Ms. Kakish provided comprehensive evidence and opinion regarding policies in the Official Plan warranting discussion.

98She focused specifically on Policies 4.1.1 and 4.1.5, respectively, the Neighbourhoods section that sets out criteria for housing options and Development Criteria for New Development, and SASP 826.

99The Official Plan, as amended by OPA 649, permits multiplex dwellings on all lands designated Neighbourhoods, which is a new land use planning framework that will generate new and different development patterns.

100The establishment of this new planning framework was introduced by the City of Toronto through its April 13, 2023, ‘Expanding Housing Options in Neighbourhoods: Multiplex Study – Final Report’ (Multiplex Study), which permits multiplexes within Neighbourhoods in Toronto.

101On the basis of that Multiplex Study, the City adopted Official Plan Amendment 649 (OPA 649) which amended the Official Plan to add SASP 826 for all lands designated Neighbourhoods, and the corresponding Zoning By-law Amendment 474-2023 (ZBA 474-2023).

102I agree with Ms. Kakish that through enacting SASP 826, the City created a new policy test applicable to the development of fourplexes, different and distinct from the generally applicable “respect and reinforce” policy test of s. 4.1.5 of the Official Plan.

103The SASP sets out policies to accommodate multiplex development, including fourplexes, in designated Neighbourhoods; the intent was to amend, for these building types, the development criteria embedded in OP Policy 4.1.5.

104Ms. Kakish opined that SASP 826 is the Official Plan’s clearest expression of the expectation for balancing greater accommodation for multiplexes in Neighbourhoods with existing expectations for development within these designated areas.

105SASP 826 permits multiplexes, defined in ZBA 474-2023 as “a duplex, triplex, or fourplex (emphasis added),” in Neighbourhoods, subject to development criteria b)(a)[i. through f.], and ii. – x.

106Policy SASP 826 b) i. specifically states that a multiplex variance will maintain the intent and purpose of the policies contained in SASP 826 b) – Development of Multiplexes. In this regard, I agree with Ms. Kakish that the proposed fourplex maintains the general intent and purpose of the applicable Official Plan policies enumerated above.

107The proposal will generally respect and reinforce the prevailing heights, massing, scale, density, and dwelling types of nearby residential properties and result in the same general scale and applicable zoning standards for low-rise building types as envisioned by criteria b) i.

108I also find that the proposed dwelling units in the fourplex are large, appropriately sized units consisting of two and three bedrooms, which is consistent with dwellings in the area.

109I agree with Ms. Kakish’s opinion that although Chapter Four of the Official Plan provides for the ‘Neighbourhoods’ land use designation and policies related to other forms of development, ‘multiplexes’ are not referenced in these policies because as she suggested, they “…are still not a prevailing housing option in Neighbourhoods.”⁵

110I agree that the Official Plan’s site and area specific policies apply and prevail over the policies in 4.1. The City’s EHON – Multiplex Study underscores that the purpose and intent of SASP 826 is “to clarify that multiplexes are a permitted building type in all Neighbourhoods, subject to certain development criteria and exempt from others listed in Policy 4.1.5 of the Official Plan.”⁶

111Ms. Kakish’s evidence was that the general intent and purpose of SASP 826 is to permit the development of multiplex building types (including fourplexes) that do not reflect the prevailing building types in the Stonegate-Queensway neighbourhood.

112She opined, and I agree, that the proposed fourplex reflects the general scale and applicable zoning standards for low-rise building types per Section 4.1.5. She argued that the relevant policy test for fourplexes is found in SASP 826, which she characterized as being ‘more flexible” than those in s.4.1.5.

113Table 1, below, sets out the relevant extracts of the two sets of policies side by side.

Table 1: OP Policy 4.1.5 and SASP 826⁷

114I concur that SASP 826 does not require the fourplex to “match the prevailing condition” but, instead, the focus is to maximize and maintain the prevailing and generous street and side yard setbacks, the soft landscaping and tree canopy, and to mitigate privacy and overlook impacts to adjacent properties.

115SASP 826 acknowledges that while multiplexes, and specifically fourplexes, may deviate from the prevailing built form (i.e., single, detached dwellings), they still align with the broader Official Plan objective of compact intensification, provided they maintain low-rise scale, setbacks and landscaping patterns.

116I concur with Ms. Kakish that the proposal has been designed in a way that is consistent with the broader city-building initiatives of the Official Plan, which encourages the provision of a full range of housing in terms of form, tenure, and affordability across the city, in a way that makes efficient use of land.

117I find that the proposed fourplex, at two storeys, will be compatible with the existing built form in the area and will be located appropriately to fit and not destabilize the neighbourhood, even though no other fourplexes currently exist.

118I also agree that changes to the Official Plan permit a fourplex on the subject property and that as incremental development occurs over time, fourplexes will contribute to the neighbourhood’s character.

119Ms. Kakish asserted that the proposed development will be the first fourplex in the neighbourhood study area and, as such, it is not possible to conform to all the policies to respect and reinforce the character of the neighbourhood. However, she also maintained that simply being the “first” should not prohibit the Appellant from building this permitted housing type.

120Being ‘the first’ in the neighbourhood should also not be a barrier to the creation of the supply of low-rise housing envisioned by the City through its EHON initiative, an initiative which encourages ground-related alternatives in Neighbourhoods that add to the range of Toronto’s low-rise, mid-rise and tower housing types.

121Redevelopment, in the form of larger, 2-storey single detached dwellings, in the vicinity of the subject property has occurred recently, specifically at Nos. 190, 192, and 194 Berry Road.

122These recently built, newer homes can be described as “large custom homes,” for lack of a better term, and I concur with Ms. Kakish that the proposed fourplex represents an appropriate and desirable alternative built form that is compatible with what exists in the area (Fig. #3 – Built Form in the Vicinity of 200 Berry Rd).

Figure #3 – Built Form in the Vicinity of 200 Berry Road

123Furthermore, Official Plan Policy 4.1.8 recognizes that the Zoning By-law standards are intended to ensure the compatibility of new development with the existing physical character of the established neighbourhood.

124Ms. Kakish maintained that no variances are required to permit the proposed ‘fourplex’ housing type, to increase the maximum height or number of storeys of the fourplex or the maximum floor space index. In this regard, I find that the proposal’s substantial compliance with the Zoning By-law is an indication of compatibility with the existing neighbourhood.

125On the basis of the record submitted by Ms. Kakish and the evidence provided, I am satisfied that the proposed side and rear yard setbacks, building length and the height of the side exterior main walls will respect the prevailing physical character of the neighbourhood and immediate context.

126I find that the proposal maintains the general intent and purpose of the Official Plan.

ZONING BY-LAW

127The overall general intent and purpose of the Zoning By-law, specifically as it relates to the RD Zone, is to prevent overdevelopment of the land and to achieve residential development that is organized to be compatible, orderly, and context-suitable.

Variance #1 – North Side Yard Setback

128The Applicant proposes a side yard setback of 0.92m from the north lot line, a setback that represents a 0.28m (0.9 ft.) decrease in the required minimum setback of 1.2m.

129Although a variance is required in this regard, I agree with Ms. Kakish that this variance is ‘minor’ and results primarily from a “pinch point” at the northwest corner of the proposed building, due to the irregular shape of the lot and the positioning of the fourplex on the subject property results.

130A reduction in the side yard setback below the minimum standard required in the Zoning By-law only occurs at one point along the north property line, given that the dimensions of the side yard setback increase from 0.92m to 2.31m, from west to east, along the fourplex’s building length (as shown on the Site Plan & Elevation drawings).

131As such, the majority of the interior side yard setback of the fourplex complies with or exceeds the Zoning By-law requirement. I also find that the difference between 0.92m and 1.2m at the pinch point will be visually imperceptible.

132More importantly, I find that Ms. Kakish’s evidence in the form of her jurisdictional scan of properties in the NSA establishes that the proposed 0.92m setback aligns with the established lot pattern of corner properties, is not uncommon in the neighbourhood, and at least 25% of the properties have a similar side yard setback interface as between the proposed fourplex and the Baniks’ property.

133Finally, I concur that the ‘as-of-right’ 1.2m interior side yard setback standard in the Zoning By-law anticipates some degree of privacy/overlook impacts that are to be expected in an urban area. A reduction of .28cm from the as-of-right condition will not make a material difference to levels of privacy and overlook in this case.

134Therefore, I find Variance #1 maintains the general intent and purpose of the Zoning By-law.

Variance #2 – Rear Yard Setback

135Variance #2 results primarily from the positioning of the proposed fourplex on an irregularly shaped corner lot as well as City staff’s request of the Appellant to maintain the front and rear yards.

136Although the Zoning By-law requires a minimum rear yard setback of 9.82m, the 0.86m setback variance remains consistent with the intent of the setback regulations, ensuring adequate space, privacy, and the functionality and efficiency of the subject property.

137Ms. Kakish’s evidence was that a majority of the corner lots in her NSA had rear yard setbacks less than the 9.28m standard, supporting the Appellant’s assertion that the variance is consistent with recent redevelopment in the neighbourhood.

138In this regard, I find that Variance #2 maintains the general intent and purpose of the Zoning By-law.

Variance #3 – Building Length

139The Applicant proposes an overall building length of 17.42m for the fourplex, which is 0.42m (1.4 ft.) longer than the maximum permitted in the Zoning By-law.

140I concur with Ms. Kakish that this variance is ‘technical’ in nature. The actual building length of the proposed fourplex is 17m as shown on the Site Plan (Exhibit 4, Drawing A02).

141However, because the subject property is an irregularly shaped corner lot and the fourplex’s 90-degree orientation, the building length is measured as 17.42m, for the purposes of the Zoning By-law.

142I find Variance #3 maintains the general intent and purpose of the Zoning By-law.

Variance #4 – Exterior Main Wall Height

143The general intent and purpose of the side exterior main wall height provision in the Zoning By-law is to minimize building massing and the extent to which walls may rise to create inappropriate upper levels.

144Zoning By-law 474-2023 (By-law 474-2023), the zoning by-law amendment that accompanied OPA 649 introducing multiplexes in Neighbourhoods, amended Zoning By-law 569-2013 by replacing Regulation 10.20.40.10(3) by removing the maximum permitted number of storeys for a multiplex.

145Maximum height permissions in each residential zone in the Zoning By-law were also amended by By-law 474-2023 to allow multiplexes to have a height of 10m in areas where lower height permissions previously applied.

146The subject fourplex proposes a maximum height of all side main walls of 8.25m, whereas 7.5m is permitted, for at least 70% of the total width of each side main wall facing both the north and south side lot lines.

147Given that the fourplex is proposed to be two (2) storeys, will include main wall heights that are only 0.76m above the maximum permitted, and will be 9.57m in total building height, I find the design will minimize the impacts of the building’s massing to ensure consistency of the low-rise scale of the area.

148Furthermore, I agree with Ms. Kakish that the Appellant has attempted to minimize the visual impact of the side wall building heights by adjusting the roof slope and eaves as well as introducing a mansard roof thereby mitigating the overall massing of the structure.

149Having considered the surrounding planning and building contexts and the proposed design which attempts to mitigate potential impacts, I find that the general intent and purpose of the side wall height provision is maintained.

DESIRABLE FOR THE APPROPRIATE DEVELOPMENT OF THE LAND

150I find that the proposal implements provincial and local housing policy objectives and will contribute to the mix of housing choices in the neighbourhood in a manner that is compatible with the subject property’s surroundings.

151I agree that the number of variances related to side main wall height, building length, side yard and rear yard setbacks, are appropriate for the use of the land and will result in a fourplex that will provide much-needed additional housing units in the City (as per OPA 649) while maintaining neighbourhood character.

152I find the fourplex is generally consistent with the prevailing character of the neighbourhood, and more significantly, meets the general intent and purpose of SASP 826 to maintain the low-rise character of the neighbourhood through compatible design, massing, and location.

153I find that the proposed fourplex utilizes the subject property efficiently, and the requested variances are both appropriate and desirable, ensuring a well-integrated and functional building design.

MINOR

154The test of whether the variances being sought, individually and cumulatively, are minor is one of undue, unacceptable impacts of a planning nature resulting from the proposal.

155The Participants in this Appeal matter have expressed concerns with the overall proposal in general, asserting that if approved, the fourplex will destabilize the surrounding neighbourhood. In this regard, they question whether this type of built form is desirable for the appropriate development of the subject property.

156While not opposed to growth and change in their neighbourhood, the Baniks noted that the reduced side and rear yard setbacks, along with the orientation of the proposed fourplex on the subject property, will move the building closer to their property.

157As a result, Ms. Banik asserted that the fourplex would create impacts of an adverse nature creating overlook onto the amenity space in her rear yard and a loss of privacy regarding her deck.

158While the TLAB acknowledges Mrs. Banik’s concern regarding the issue of overlook, it is also true that the courts have held that some overlook is to be expected in an urban environment. In Cheema v. Toronto (City), a decision issued by the former Ontario Municipal Board (OMB) in 2015, the Board Member wrote the following regarding the issue of ‘privacy and overlook’:

“The Board seeks to remind residents when it is able to that in the compact urban environment with adjoining rear yards, no resident should expect complete privacy from adjacent views and no resident should expect that views across or onto adjacent rear yards are to be safeguarded.”⁸

159While the relationship between the proposed interior side yard of the fourplex as it relates to the rear yard of the Baniks’ property is slightly different from the scenario highlighted in the OMB’s decision cited above, the finding of the Board is still relevant to the subject appeal before the TLAB.

160Ms. Kakish’s jurisdictional scan of the NSA evidence supports her opinion that the magnitude of the proposed side and rear yard setbacks is minor, and they are consistent with the character and lot pattern of corner properties in the neighbourhood.

161The Baniks also asserted that the proposed fourplex will impact the amount and duration of sunlight in their rear yard, and onto their deck and patio. They asserted that the massing of this redevelopment proposal will introduce “new shadowing” on the family’s rear yard, which Mrs. Banik characterized as “an entirely new impact” on their property.

162It is important to note that a sun/shadow study was not required by the City for this type of development. Ms. Kakish clarified that the proposed two-storey fourplex would be similar in height to that of a single, detached dwelling if such a structure were constructed on the property.

163Furthermore, the Baniks failed to establish to the TLAB, by way of a shadow study or an expert witness, that the proposed fourplex will have “…considerable impact on our family’s rear yard as new shadowing would occur for large portions of the day, limiting enjoyment of our outdoor private rear yard deck and landscaping…”⁹ as they asserted in their Participants Statement.

164I agree with Ms. Kakish that the proposal is consistent with the existing built form in the area given that the Zoning By-law does not include a maximum number of storeys for multiplexes (i.e., fourplex) and the proposed building height is below the maximum permitted height of 10m in the By-law. It is a reality of urban living that some degree of shadowing from neighbouring properties is to be expected.

165In addressing the issues of privacy and overlook, the Appellant’s solicitor, Mr. Nemanic, in his written Closing Statement to the TLAB, has recommended adding conditions to a final Decision and Order, to address privacy and overlook concerns raised by the Participants, if the TLAB authorizes the requested variances.

166In addition to the standard TLAB condition of “construction substantially in accordance with,” the Appellant has recommended the following two (2) supplementary conditions, which the TLAB is prepared to impose:

1. Construction of a new, taller fence along the north property line, with a maximum height allowable under Chapter 447 of the City of Toronto Municipal Code; and

2. Opaque windows on the proposed north elevation (Elevation Drawing No. A8).

167I find that when combined, these conditions will perform an adequate screening function between the interior (north) side yard of the subject property and 1 Minden Crescent, and I am satisfied that these conditions will be sufficient measures to mitigate the privacy and overlook concerns raised by the Baniks.

168Mr. Danchyshyn had a similar concern to those raised by the Baniks regarding the potential impacts of decreased sunlight on his property. He also did not substantiate his concern to the TLAB in this regard, in any tangible way.

169Neither did he provide any evidence to demonstrate that the fourplex would generate increased traffic or noise as a result of the proposal, his other two main concerns with respect to the proposed fourplex.

170Finally, as to his assertion that the fourplex “would be out of character for the neighbourhood,” this building typology is a permitted use on the subject property.

171While I acknowledge all the concerns expressed by those who oppose the proposal before the TLAB, I also agree with Ms. Kakish that the Appellant requires no variances for permitted housing type, an increase in maximum building height and number of storeys, and FSI.

172Additionally, the TLAB acknowledges that the Appellant has attempted to mitigate impacts through design elements and conditions of approval and has also revised the initial application as a result of discussions with City Planning staff.

173The result has been a proposal that attempts to maintain a generous setback from Berry Road as well as a rear yard setback of 8.42m (27.6 ft.) to Mr. Danchyshyn’s property.

174I also find that the characteristics of the subject property, being a large corner lot situated proximate to a TTC bus stop on Berry Road, are appropriate to accommodate the redevelopment of the lot with a fourplex.

175Based on the above, therefore, I find the proposal is minor; I am satisfied that the proposed fourplex represents a sensitive, gradual, and compatible infill development that will reflect current residential intensification in the area and enhance the complete community characteristics of the neighbourhood.

CONCLUSION

176The proposal is compatible with the neighbourhood and will provide needed housing in a form that is desirable and consistent with the goals of both the Official Plan and the provisions of the Zoning By-law, as amended.

177The City’s EHON initiative and specifically, the April 13, 2023, Multiplex Study – Final Report (Multiplex Study), recognized that in practice, the development criteria of Official Plan Policy 4.1.5 presented challenging policy barriers to developing multiplexes (including fourplexes) in Neighbourhoods, even in areas where multiplex building types are permitted in the zoning by-law.

178In this regard, I cite the following excerpt from the Multiplex Study:

“The weight given to prevailing building types and existing physical form limits achievement of the Official Plan’s many other stated objectives. Typically, if multiplexes are not already present or do not have a significant presence in a neighbourhood, they are unlikely to be supported by City Planning staff, approved at the Committee of Adjustment, or supported at the Toronto Local Appeal Body (TLAB) based on this policy. There is room within the low-scale built form of Neighbourhoods to achieve a better balance between local physical character and incremental growth.”¹⁰

179The Multiplex Study also highlighted City Council’s acknowledgement that both current and future residents of Toronto will need homes, and the City will need to accommodate the diversity of household sizes and compositions, across the city. In order to accomplish this, the Report concluded that “Toronto needs a diverse range of housing options.”

180The EHON initiative responded to several City and Provincial policy objectives to provide a full range of housing options to Torontonians, in a form that makes efficient use of land, infrastructure, and existing services.

181To quote urbanist Jane Jacobs, “Cities should support a wide range of choices in where to live, how to get around and who to connect with.”¹¹ Commenting on how to make cities better, she championed mixed-use neighbourhoods, condensed blocks, and diverse building types, because, “they invite people from all walks of life and foster creativity, community, and spontaneity.”

182Community Planning staff were clear in their general support of multiplexes in the Multiplex Study, stating the following:

“This type of housing (multiplexes) can support climate controls by reducing emissions through neighbourhoods that allow people to walk, bike or take transit…It provides a housing option that can fit the needs of families, large households, and people who would prefer living in ground-related housing.”¹²

183The building form proposed by the Appellant is a fourplex, which is permitted as-of-right on lands designated ‘Neighbourhoods’, such as the subject property. When built, it will increase the available housing options in the Stonegate-Queensway neighbourhood in which the subject property is located. Its massing and scale will respect the type of low-rise development also permitted in the neighbourhood.

184The proposed fourplex will also incorporate generously sized units and increase the number of units on the lot from one to four. Its proximate location to a bus stop will provide future occupants with the opportunity to conveniently utilize public transit.

185Based on Ms. Kakish’s evidence, the proposed variances align with both corner properties and interior lots. The proposed side yard setback for the fourplex reflects the setbacks of many other dwellings in the neighbourhood and the alignment and rear lot line placement of the fourplex is consistent with numerous properties in the area, ensuring that the proposal will preserve the existing streetscape and overall community aesthetics while allowing for an appropriate level of density.

186Therefore, I find the variances requested, individually and cumulatively, have appropriate regard to matters of provincial interest in s. 2 of the Planning Act, are consistent with the PPS 2024, and satisfy the four statutory tests as required by s. 45(1) of the Act.

187I authorize the variances requested below, subject to the conditions of approval contained herein.

DECISION AND ORDER

188The Appeal is allowed; the decision of the Committee of Adjustment dated August 29, 2024, is set aside and the variances listed in Appendix A below, are authorized, subject to the conditions of approval in Appendix B and in accordance with the Site Plan and Elevation Drawings depicted in Appendix C, herein.

D. Lombardi

Panel Member, Chair

APPENDIX A

REQUESTED VARIANCES TO THE ZONING BY-LAW

1. Section 10.20.40.70.(3)(C), By-law 569-2013

The minimum required side yard setback is 1.2 m.

The proposed dwelling will be located 0.92 m from the north side lot line.

2. Section 10.20.40.70.(2)(B), By-law 569-2013

The minimum required rear yard setback is 9.28 m.

The proposed dwelling will be located 8.42 m from the rear lot line.

3. Section 10.20.40.20.(1), By-law 569-2013

The maximum permitted dwelling length is 17 m.

The proposed dwelling will have a length of 17.42 m.

4. Section 10.20.40.10.(2)(A)(i), By-law 569-2013

The maximum permitted height of all side exterior main walls facing a side lot line is 7.5 m.

The proposed dwelling will have a side exterior main wall height of 8.25 m, facing a side lot line.

APPENDIX B

CONDITIONS OF APPROVAL

1. The proposal shall be constructed substantially in accordance with the Site Plan and Elevation Drawings: A02 Proposed Site Plan; A5 Proposed Front Elevation; A6 Proposed Rear Elevation; A7 Proposed South Elevation; and A8 Proposed North Elevation, dated August 22, 2024, prepared by Options Design & Build, attached as Appendix C, hereto. Any other variance or variances that may appear as required on these plans that are not listed in the written decision and order are NOT authorized.

2. The Owner shall be required to submit a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

3. The Owner shall construct a new fence between the subject property and 1 Minden Crescent, to the maximum allowable height permitted under Chapter 447 of the City of Toronto Municipal Code.

4. The 0.77m by 1.06m window on the main level, and the 1.52m by 2.43m window on the 2^nd level appearing on the Proposed North Elevation (Drawing No. A8), shall be designed to be opaque to limit overlook over 1 Minden Crescent.

APPENDIX C

Footnotes

1. 1Exhibit 3 - Community Planning Staff Report – Committee of Adjustment Application for 200 Berry Road, dated August 22, 2024, p. 33.
2. 2Exhibit 1 – Ms. Kakish’s Expert Witness Statement, dated February 28, 2025, para. 35, p. 6.
3. 3Mr. & Mrs. Banik’s Participant Witness Statement (Form 13), dated February 28, 2025, para. 2.1.
4. 4Ibid., para. 2.4.
5. 5Exhibit 1 – Ms. Kakish’s Expert Witness Statement for 200 Berry Road, dated February 28, 2025, para. 40, p. 8.
6. 6City of Toronto Expanding Housing Options in Neighbourhoods: Multiplex Study – Final Report, dated April 13, 2023, p. 18.
7. 7TLAB Final Decision & Order for 86 Harlandale Ave., dated May 9, 2025, issued by Vice Chair Bassios, para. [46].
8. 8Cheema v. Toronto (City), OMB 150505, 2015 CarswellOnt 14728, August 25, 2015, p. 6.
9. 9Mr. & Mrs. Banik’s Participants Witness Statement (Form 13), dated February 28, 2025, para. 2.4, p. 2.
10. 10City of Toronto’s Expanded Housing Options in neighbourhoods: Multiplex Study – Final Report, dated April 13, 2023, p. 17.
11. 11The Death and Life of Great American Cities, Jane Jacobs, Random House Publishing Group, 1961.
12. 12City of Toronto’s Expanded Housing Options in neighbourhoods: Multiplex Study – Final Report, dated April 13, 2023, p. 1.