Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-07-22

24 142296 S45 03 TLAB

Aziz (Re), 2025 ONTLAB 341

DECISION AND ORDER

Issuance Date:

July 22, 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):

S. AZIZ

Applicant(s):

MAKOW ARCHITECTS ASSOCIATES LTD

Property Address:

290 LAKE PROMENADE

COA File No.:

19 232848 WET 03 MV (A0533/19EYK)

TLAB Case File No.:

24 142296 S45 03 TLAB

Hearing Date(s):

November 7, 2024

February 7, 2025

May 22, 2025

Decision Delivered By:

Panel Member B. Mullock

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

MAKOW ARCHITECTS ASSOCIATES

Appellant

S. AZIZ

J. PFEFFER

I. ANDRES

Party

CITY OF TORONTO

A. SANDHU

Party

C. MERCADO

Participant

S. VELLA

Participant

A. CHOLES

Participant

LONG BRANCH NEIGHBOURHOOD ASSOCIATION (LBNA)

Participant

J. RIBEIRO

Participant

G. D. F CORDEIRO

Participant

K. KOTRIS

Participant

A. DONALD

Participant

J. CUTMORE

Participant

S. LOCKETT

Participant

K. GEIGER

Participant

R. STRANART

INTRODUCTION AND CONTEXT

1On October 7, 2019, the applicant filed a minor variance application (File No. A0533/19EYK) (the “Application”) in respect of 290 Lake Promenade to construct a new detached dwelling with an attached garage.

2The Application was originally scheduled to be heard by the Etobicoke York Panel of the Committee of Adjustment on November 21, 2019. On November 20, 2019, the applicant submitted a letter to COA requesting deferral of the application. COA unanimously voted to defer the application.

3A revised application, including revised plans and zoning notice, was submitted to the Committee in March 2024, and scheduled to be heard by the Committee on April 11, 2024.

4Community Planning filed a Staff Report with the Committee dated April 3, 2024, recommending that the Application be refused on the basis that it fails the four tests under section 45(1) of the Planning Act, and does not respect the Long Branch Neighbourhood Character Guidelines.

5Ravine and Natural Feature Protection submitted a memorandum to COA dated April 4, 2024, which did not recommend any conditions of approval.

6Tree Protection and Plan Review, Urban Forestry – West District filed memorandums dated April 2, 2024 and April 4, 2024, recommending the Application be deferred until necessary information was provided to confirm whether bylaw protected trees could be adequately protected.

7Some 19 letters of public opposition and one letter of support were filed with respect to the Application.

8On April 11, 2024, the Committee heard and unanimously refused the Application.

9The Appellant appealed the Committee’s decision to the TLAB on April 30, 2024.

10At TLAB, the appeal was heard over three full days of hearing. The first day was November 07, 2024, the second was February 07, 2025 and the third was May 22, 2025.

11Having initiated the appeal, the obligation is on the Appellant to demonstrate to the decision maker that the four tests of Section 45(1) are met. In order for TLAB to approve the requested variances, it must be satisfied that the application meets the requirements of the Planning Act. The burden rests therefore on the Appellant to provide evidence that fully substantiates that the application meets the relevant requirements of the four tests listed in s.45(1).

The Property

12The property is designated Neighbourhoods on Map 15 of the City Official Plan (OP) and zoned RD under city-wide Zoning By-law 569-2013.

The Neighbourhood Context

13The geographic neighbourhood is zoned RD and RM.

14Lake Ontario lies to the immediate south.

15The two expert witnesses delineated the geographic neighbourhood somewhat differently, however, they are sufficiently similar to be comparable.

The Redevelopment Proposal

16The relief sought from the provisions of the Zoning By-law requests four (4) variances in total.

17One variance involves FSI. The maximum permitted floor space index is 0.35 times the area of the lot. The proposed dwelling would have a floor space index equal to 0.74 times the area of the lot.

THE LEGISLATIVE POLICY AND FRAMEWORK

18Provincial Interest

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.

19Provincial Policy

A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the subject area.

20Planning Act , S. 45(1)

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

• maintain the general intent and purpose of the Official Plan;

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

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

• are minor.

21Long Branch Neighbourhood Character Guidelines

Adopted January 31, 2018 by Toronto City Council, and to be applied in review of development applications by listed stakeholders, including appeal bodies.

SUMMARY OF EVIDENCE

22I have reviewed all of the evidence and testimony related to this matter. The following summary of evidence is included to provide context for the Decision. If any point of evidence appears to have been omitted in this summary, its omission should not be taken to mean that such evidence was not considered. It indicates, rather, that I determined the recitation of such evidence was not material to my reasoning, which is outlined in the Issues and Analysis section.

23I have made a site visit to the subject site’s immediate context area and have walked in the surrounding area.

24On Day #1 (Nov 07, 2024) of the hearing, Ian Andres was identified as the Appellant’s Legal Representative.

25Mr. Andres called Michael Goldberg as witness. Mr. Goldberg is an urban planner and land use planner, who had been retained by the Appellant. Mr. Goldberg had filed an Expert Witness Statement by the requisite due date in the Notice of Hearing.

26Mr. Goldberg is a Registered Professional Planner (RPP), with over 40 years of experience in land use planning activities. He has appeared before TLAB to provide expert opinion in the past. The tribunal qualified him to provide expert opinion evidence in the area of land use planning.

27During direct examination, Mr. Goldberg reviewed the appeal broadly and in the light of the Official Plan (OP), the Zoning By-law, the other two statutory tests, and making reference to the Long Branch Neighbourhood Character Guidelines. He provided background information on the detail of the proposal.

28It was the expert witness’s opinion that TLAB should allow the appeal and approve the variances as proposed.

29To inform comparison with other COA applications, he made reference to the photographic and chart-summarized detail included in his Witness Statement.

30He referred to items from his Witness Statement, including the Area Context Plan, the Site and Area Photo exhibit and the COA Decision Analysis and Map.

31Mr. Goldberg opined that the proposed dwelling is of similar character and scale as other existing and replacement dwellings in the neighbourhood. He is of the opinion that it would comfortably and compatibly fit the existing and planned character of the neighbourhood. (M. Goldberg EWS, 11.1.2)

32Mr. Goldberg asserted that he views FSI is an indicator of the scale of a house in relation to its lot, not an indicator of the scale of the house in relation to its neighbourhood.

33Mr. Goldberg gave evidence that two nearby lots on Lake Promenade have deeper lots than the subject property. He opined that their FSI’s, if calculated, would appear to be lower than that now proposed at 290 Lake Promenade due to their greater lot area.

34Mr. Goldberg gave evidence that, in the area between 36th Street and 38th Street in the study area, a number of FSI variances had been approved over time. It was his analysis that those approved at higher range FSI’s, correlated to those occupying shallow lots. He described the subject site as a shallow lot.

35Mr. Goldberg gave evidence that the study area presents a variety of architectural styles and rooflines, and includes dwellings with integral garages. He noted that neither the Zoning By-law nor the Official Plan dictates architectural style.

36The expert witness noted that the existing house at 290 Lake Promenade is not a designated heritage building.

37Mr. Goldberg opined that, when considered three-dimensionally, he views the proposal as generally compliant, except for the .29m height variance. It does not ask for setback, length or depth variances. He opined further, that as a general indicator, FSI poorly expresses the three-dimensional built form of the proposed dwelling.

38The expert witness gave evidence that, at 9.79m where 9.5m is required, the height variance is minor, relating to the parapet. By way of comparison, he asserted, the City Planning Staff Report of November 2019 to COA had allowed for a height dimension of 10.5m.

39Mr. Goldberg gave evidence that the proposed east side yard setback exceeds the performance standard.

40The expert witness gave evidence that, in his view, FSI actually amounts to an artificial constraint. He opined that the proposal is not out of scale, as the FSI variance might seem to suggest. Both the FSI and the platforms proposed fall within the range of being appropriate, in his view.

41Mr. Goldberg asserted that he had not studied the prevailing FSI’s in the area, beyond those associated with COA applications. To do so, he explained, one would need to access the individual FSI’s of the many properties in the neighbourhood. Such FSI records have not been kept.

42The expert witness drew a comparison with a nearby property to the west. He opined that the large house on the corner lot at 303 Lake Promenade does not overwhelm the neighbourhood, and that neither will this proposal.

43He gave evidence that, were a second unit were to be proposed, the proposal would become a multi-unit proposal. A larger, taller building than that proposed would then be permitted as of right.

44Mr. Goldberg noted that no soft landscaping variance was included in the proposal.

45Mr. Goldberg opined that the study area which he puts forward, when compared to that delineated by Mr. Kopec of the City of Toronto, while not identical, are similar in scope.

46Mr. Goldberg asserted that in his view, it would be desirable to allow the project to proceed, because the investment involved is desirable. The existing house at 290 Lake Promenade is in poor repair.

47The expert witness addressed the topic of the Long Branch Neighbourhood Character Guidelines (Guidelines). He opined that, while adopted by City Council, the Guidelines do not carry legal weight comparable to the Official Plan or the Zoning By-law.

48He noted in particular that the Guidelines have not been ensconced in the Official Plan, so opined that minor variances are not required to comply with the Guidelines. He opined that their provisions should be referred to flexibly and not weighted comparably to the OP, which constitutes one of the four tests.

49During cross examination, the expert witness estimated that the number of properties included in his neighbourhood/ study area amounted to about 350.

50Mr. Goldberg explained that the map he had submitted, ostensibly showing COA approvals, had been prepared by his staff. He acknowledged that inadvertently it might actually map both COA approvals and COA refusals. He undertook to review it personally, then to resubmit it to TLAB.

51Mr. Goldberg gave evidence that he had not spoken with area residents about their concerns with respect to the proposal.

52With respect to the OP, Mr. Goldberg asserted that no element of the proposal was out of keeping with the OP, in his analysis.

53Asked to comment on the proposal with respect to OP, the expert witness gave his opinion that the OP is to be interpreted purposefully, in a broad liberal manner. In his view, the OP is not to be viewed as “prescriptive”.

54Mr. Goldberg gave evidence that Long Branch is not static and has not stayed “frozen in time”. He asserted that different architectural styles and heights do exist now. They can co-exist in harmony, in his view.

55He suggested that the proposal should be viewed in the light of how the OP itself might evolve in the future.

56Mr. Goldberg gave evidence that other types of buildings, such as apartment buildings, exist nearby in the immediate context near the subject property. In his opinion, comparison should be made to those buildings also, when considering the proposal broadly. The comparison should not be limited to single detached dwellings alone.

57FSI, when used in evaluation, the expert witness opined, is not a reliable measure of the impact of scale. The numbers which comprise the proposed variances are purely quantitative, he opines. In his view, they fail to tell the whole story, and should not be over weighted.

58In his opinion, a qualitative approach serves as a better approach. Coming to the proposal with a qualitative evaluation, he opines, allows for analysis of the project as a whole. Further, it enables one to take into account the types of variances which the proposal does not ask for.

59The expert witness gave his opinion that, being so low, the By-law standard of .35 FSI actually serves today to invite variance applications. In his view, .35 FSI is no longer the actual outcome expected by the City.

60Asked about the .74 FSI proposed, where .35 is required, Mr. Goldberg agreed that among the COA decisions presented for comparison, .74 would rank second only to the .86 FSI allowed on another application cited.

61With respect to the Zoning By-law, he advised that caution should be exercised when considering it. In his view, the Zoning By-law taken on its own, can become a “blunt instrument” of evaluation. His opinion was that the proposal should be viewed in the light of not just how the Zoning By-law itself might evolve in the future.

62On Day #2 of the hearing (Feb 07, 2025), during cross examination Mr. Goldberg gave evidence related to the revised Decision Analysis Map and tables which he had submitted. He confirmed that these appeared to indicate that COA had refused requested FSI’s in the order of .69, .62, .67, .58, .76 and .66 at properties located in the broader context.

63Mr. Goldberg described the subject property as a “shallow lot”. He opined that impact of a built dwelling on the streetscape is the same, deep lot or shallow lot.

64He noted that the proposal proposes only 13m in building length, where 17m is permitted.

65Amrit Sandhu of the City of Toronto acted as legal representative for the City of Toronto. Ms. Sandhu called Pavel Kopec as witness.

66Pavel Kopec is a Planner at Development and Growth, Development Review, Community Planning, Toronto and East York District, City of Toronto. He has worked more than two years for the City of Toronto in both Zoning Examiner and Planner roles.

67He holds a Bachelor of Urban and Regional Planning from TMU, and is a member of both OPPI and CIP. He had completed a Form 6 and a Form 14 for this hearing.

68The tribunal qualified Mr. Kopec to give expert evidence on land use and planning matters.

69The expert witness gave evidence that the proposal meets none of the four tests, and that the appeal should be refused. To meet the requirement of the Planning Act, he noted, all four tests must be satisfied.

70He opined that Lake Ontario is the defining element of the immediate context area. The lake renders the block on which the subject site is located a prominent location, one to which the public is drawn to walk and cycle on the Great Lakes Waterfront Trail, to sit or picnic in Len Ford Park. Mr. Kopec describes the IC as a focal point in Long Branch due to its older homes, and feeling of cottage charm, located directly across the street from 290 Lake Promenade.

71Mr. Kopec gave evidence that the Long Branch Neighbourhood Character Guidelines apply to the site.

72The expert witness gave evidence that, the buildings in the Immediate Context are highly visible. With their view to the park and to the lake, houses on Lake Promenade are more visible to a larger percentage of the public than those located in the interior of the study area.

73He opined that the proposal does not meet the intent of the OP, in that the change it proposes is neither gradual nor sensitive to the prevailing character of the neighbourhood. Massing at the scale proposed is not, in his analysis, the most frequently occurring massing in the Immediate Context (IC) or the Broader Context (BC). In fact, such massing would be precedent setting as the highest FSI in both the IC and the BC.

74Approvals in the IC and the BC do not indicate trends towards FSI’s substantially greater than .5 or heights greater than 9.5m..

75Neither, in the view of the expert witness, does the proposal meet the intent of the Zoning By-law. The .74 FSI proposed, he opines, does not respect and reinforce the character of the neighbourhood, where the majority of FSI’s fall with a significantly smaller range.

76The witness gave evidence that among 21 COA approvals for FSI in the geographic neighbourhood, 13 were for less than .49 FSI. Only one was for an FSI in the larger range of .6 to .69 FSI.

77Mr. Kopec gave evidence that the proposed FSI of .74 would represent the highest FSI approval for a detached dwelling in the IC or the BC.

78He gave evidence that, within the IC, no proposals for FSI had been granted.

79With respect to the Zoning By-law, the expert witness opined that FSI, generally, is intended to regulate mass, so that a consistent pattern of massing results in a neighbourhood.

80In his view, in this IC an FSI of .74, where .35 is required, fails this test, because the proposed massing would not be consistent with the pattern of dwellings in the IC. It would stand out negatively because of its massing.

81The witness gave evidence that among 21 COA approvals for FSI in the geographic neighbourhood, 13 were for less than .49 FSI. Only one was for an FSI in the larger range of .6 to .69 FSI.

82The witness gave evidence with respect to height, noting that among the 210 properties in the geographic neighbourhood, only a single COA approval had been granted for height variance. It was not located in the IC.

83Mr. Kopec opines there is no trend evident from COA decisions for increased building height for single family dwellings. The prevailing character for height in the BC and IC is, he concludes, the permitted 9.5m or shorter.

84Mr. Kopec gave evidence that the proposal fails also to meet the test of being minor.

85Its visual impact would be large and noticeable due to its massing, he opined. At .74, it would become the highest FSI in both the IC and the BC.

86Mr. Kopec gave evidence that the proposal failed to meet the test of being desirable. Its façade would be dominated by glazing, while individual dwelling facades in the immediate context are a mix of brick and gazing. In his view, the proposal would not be desirable or in the public interest, because the site is highly visible to the public.

87The visual impact of the expansive glazing, in his view, is magnified by the height variance sought.

88The Guidelines, he points out, ask that proposals complement the streetscape by employing a range of materials on the facade. This one does not employ a sufficient range of materials, and he opines, is not harmonious within the immediate context.

89The expert witness gave evidence that his opposition to the proposal is not stylistic. Contemporary design styles can be articulated, in his opinion, with a variety of materials, and be harmonious alongside older properties, as a result.

90Mr. Kopec cited 90 36th Street as a flat roof, contemporary dwelling, which fits its immediate context, due in his opinion to its use of a range of materials on the exterior facade.

91The expert witness gave evidence that a .74 FSI approval would represent a dangerous precedent for the neighbourhood. As a precedent, it could speed up change which may not be desirable.

92Mr. Kopec gave his opinion that the proposal should be refused, due to the undue visual impact it would create in the IC. In his view, the proposal fails each one of the four tests.

93Under cross examination, Mr. Kopec gave evidence that he did not discuss the application with a member of City Council.

94Mr. Kopec gave evidence that the Zoning By-law permits three storey dwellings.

95The expert witness gave evidence that, in his opinion, TLAB should consider the Guidelines, although not required to do so.

96Mr. Kopec gave evidence that the study area he worked with included 322 properties.

97He gave evidence that the immediate context consists of five properties on Lake Promenade. The apartment building to the west is one of them. It falls, however, under another set of standards under the Zoning By-law.

98With respect to the variances proposed, Mr. Kopec gave evidence that he does not take issue with the two platforms proposed at the areas proposed.

99The expert witness gave his opinion, however, that the variances calling for .74 FSI and 9.79m height should be refused. He opined that FSI and height work in conjunction with each other. They have a cumulative impact on increasing massing.

100Judy Gibson next called Christine Mercado to testify. Ms. Mercado is Chair of the Long Branch Neighbourhood Association. She is not a planner.

101In Ms. Mercado’s opinion, there are in Long Branch examples of contemporary housing design styles which succeed in “fitting in”. The current proposal, however, does not fit in, in her opinion and should be refused.

102In her view, this section of the Long Branch waterfront is the immediate context (IC). It draws its distinctive character and charm from its history as a resort area dating back to the 1890’s and 1900, in her view. “Queen Anne” wrap-around porches at ground level were and are a common feature, as were small elevated porches. Large, dominant elevated platforms, like those proposed, were not a prevailing feature in her view and do not fit.

103The witness points out that an original cottage home from that era still exists next door to 290 Lake Promenade.

104Ms. Mercado opines that the floor to ceiling windows proposed do not fit in the IC. The ratio of glass to brick does not respect the pattern in the immediate context. She opined the front windows were too large. Within the IC the prevailing ratio of glazing to brick is considerably lower than that evident in the proposal. The large windows would increase light pollution on the streetscape, in her view.

105The witness asserts that the height variance should be refused, in her view. It would render the roof at 290 about the same height as the peak of the parapet roof next door. Being a flat roof design, however, the perception of massing would seem greater.

106Ms. Mercado asserts that public use of the waterfront trail is increasing near 290 Lake Promenade, both by pedestrians and cyclists. Thus, this block of Lake Promenade is visible to many people. In her view, the things that make this stretch of waterfront “fun to visit” should be preserved. The historical charm of the streetscape is one of them in her view.

107She gave evidence that an important distinction exists between 290 Lake Promenade and a “lakefront” property with shoreline, which 290 is not. It is her opinion that 290 Lake Promenade constitutes a, “park view property with a view of Lake Ontario”. This makes the impact of the proposed dwelling’s mass more visible to many people. It becomes a part of the public realm, while a “lakefront” dwelling is visible only on its own site.

108The witness offered the opinion that the proposal would not serve to preserve the character of the IC. The subject property is located adjacent to a Heritage – listed bungalow property.

109Ms. Mercado gave testimony that the scale of the windows and platforms proposed does not keep with the prevailing character of the immediate context.

110She gave evidence that the applicant was encouraged by City Planning to reduce the variances to reduce their impact, but does not appear to have done so.

111The witness gave evidence that peaked roofs with slopes and dormers are a dominant feature of the IC. 377 Lake Promenade was cited as an example. In her view, sloped roofs draw the eye downward rather than upward. Flat roofs draw the eye up, emphasizing height. Thus sloped roofs fit the IC and BC better in her opinion.

112While flat roofs exist in the BC, she noted, none of them have a 9.79m height. This proposal would be precedent setting with respect to height, in her view.

113Ms. Mercado opined the front elevation rendering provided by the appellant did not seem to accurately represent the height at which the proposed dwelling would appear to sit. In her view, it would sit at a more elevated level above grade than that represented.

114The witness described the proposed FSI variance of .74 as overly large, in a situation where .35 is required.

115In her view, the proposal sites a dwelling with oversized mass and height on top of a burm. These factors will make it stand out visually much more than adjacent dwellings.

116The witness offered the opinion that oversized front elevated balconies were to be discouraged. She gave evidence such balconies had been refused on another application she had worked on.

117Ms. Mercado opined that the variances proposed represent choices by the appellant. If approved, the dwelling would look out of place in an IC which is a “destination” for the public .The dwelling could be proposed in compliance with the Zoning By-law, she opined, without causing hardship to the appellant.

118Ms. Mercado gave evidence that the proposed FSI and height variances proposed were not in keeping with the prevailing character of the IC. They do not meet the four tests, in her view and should be refused.

119Under cross examination, Ms. Mercado gave evidence that, while she is not an RPP and does not portray herself as an expert witness, she has taken part in some 30 TLAB hearings as a lay-person and member of LBNA.

120In her opinion, there is a distinction to be made between compliant balconies which face the lake and dominant balconies proposed to face the lake.

121With respect to the Long Branch Community Guidelines, Ms. Mercado gave her opinion that, while they do not have the force of an OP Amendment, they do have some weight. In January 2018, they were approved by Toronto City Council. This approval gives them some weight, in her opinion. One can argue, she continues, that they represent “one tool in a bucket of tools”. In her view, it would be improper to ignore the Guidelines altogether.

122With respect to prevailing FSI in the BC, Ms. Mercado gave evidence that .74 FSI in no way represents the “prevailing condition “, neither is it the most frequently occurring FSI in the BC or the IC. It is an outlier.

123Judy Gibson called Kathryn Kotris as her next witness, a former property owner on Lake Promenade.

124Ms. Kotris gave evidence concerning her personal experience with another project at 93 Lake Promenade adjacent to her former home. She described the house as “massive” and “oversized”, a “project gone wrong”. She asserted it had ruined her shade and privacy, reduced her enjoyment of the property and impacted resale value.

125The witness asserted that, as a result, she had moved. She is now building a By-law compliant, new home with a .35 FSI. She feels is respectful of the neighbourhood she values.

126With respect to 290 Lake Promenade, Ms. Kotris offered her opinion that COA had been correct to refuse the application.

127Judy Gibson called Rosa Stranart as the next witness, owner of the 1886 property to the north and rear of 290 Lake Promenade. Ms. Stranart gave evidence that she had lived there 52 years. She described loving the historical buildings and sense of history present in the immediate neighbourhood, close to the lake and with its abundant trees.

128In her view, the proposal at 290 Lake Promenade is too large and the floor-to-ceiling windows are out of scale. The proposal, being to her south, will block sunlight to her property. The small gap which lets her see to the lake will be gone. She offered the opinion that the proposal does not fit the streetscape.

129Judy Gibson called Alexander Donald as next witness. He has lived 25 years in Long Branch.

130Mr. Donald gave evidence that he too loves the neighbourhood. He said it is his understanding that new development is intended, by its shape and feel, to respect and reinforce the neighbourhood. This proposal does not.

131The witness remarked that over time the Zoning By-law had gone through several iterations, as the authority passed from Long Branch to Etobicoke to the City of Toronto. It was important to note, in Mr. Donald’s opinion, that each time it did transition, the .35 FSI standard was retained and reaffirmed.

132The witness gave evidence that the proposal in his view did not meet 9 of the 16 character guidelines contained in the Guidelines.

133Mr. Donald offered the opinion that, from a simple numerical viewpoint, a .74 FSI is not minor, where .35 is required. Being of this magnitude is a concern in his view.

134Judy Gibson called Jenny Ribeiro as the next witness. Ms. Ribeiro resides at 27 Elton Cr, between 27th and 28th Streets.

135Ms. Ribeiro gave evidence that new build should not be allowed to overwhelm neighbouring properties. In her opinion, this proposal would do so.

136She gave evidence that the large expanse of glazing would represent a danger for birds in migratory flight. The site sits on a bird migration route across Lake Ontario.

137Ms. Ribeiro expressed concern about preserving the historical character of the neighbourhood. She gave evidence that much historical built form has already been lost in the broader area. She opines that people come to walk in Len Ford Park, to enjoy its sense of history and its public access to the Lake. In fact, she asserted, guided history walks are conducted here. She is of the opinion that the sense of history is worth preserving. She opines that the proposal would harm the streetscape and should be refused.

138Judy Gibson called Steven Vella as the next witness. His home is at 42 Ash Cr, which he describes as a ten minute walk away from 290 Lake Promenade.

139In his evidence, Mr. Vella noted what he describes as broad opposition. Both the neighbours and the LBNA oppose this project. So does City Planning, he continues. And COA has refused the application. Cumulatively, he sees broad opposition by so many, as clear indication that the proposal should not proceed.

140In the witness’s view, new build can designed to fit in. There are examples in the neighbourhood, such as 5 - 35th Street, where fit is achieved in his view. This proposal, however, does not fit well, any more than did the 2019 proposal for 290 Lake Promenade. This stems from its oversized massing, in his view. It is not in keeping with the “prevailing character”, and should be refused.

141Mr. Vella describes it as a “joy” to walk along this section of Lake Promenade, looking at the old cottages and the Lake.

142Judy Gibson called Gabriela Codeiro as the next witness. She has lived nearby since 2001.

143She gave evidence that the proposal has been reduced in scope slightly from its previous iteration, but still fails the four tests, in her mind. The apparent FSI reduction came about, she understands, not by reducing outward massing, but apparently by removing a section of floor on the second level interior from the plan.

144The proposed expanse of glazing is excessive, in her opinion, and will only be a negative distraction. The proposal should be refused.

145Judy Gibson called Judith Cudmore as the final witness.

146The witness explained that she lives on Lake Promenade, between 23rd and 25th Streets, in a house her parents built in 1962.

147She is drawn to this particular section of Lake Promenade at Len Ford Park, and cycles here or walks ten minutes twice a week to enjoy it.

148The .74 FSI should be refused in her view. It does not fit the immediate context, being both “radical and enormous”. The witness opines further that the platform areas proposed are too large, and should also be refused.

149At this point, Ian Andres asked the tribunal to hear reply evidence from an additional witness. The witness, he explained, would give evidence refuting an assertion made by Christine Mercado. Ms. Mercado, he recalled, had asserted that the front elevation rendering submitted by the appellant did not seem to accurately represent its height above grade, making it appear lower than it would actually be.

150The tribunal granted this request. Ian Andres called James Pfeffer of Makow Architects. Mr, Pfeffer has appeared before TLAB previously. He was affirmed as an expert witness with respect to the subject front elevation rendering.

151Mr. Pfeffer gave evidence that he is experienced in the preparation of renderings. He carefully prepared the rendering in question. He describes it as depicting the front elevation of the proposed dwelling at 290 Lake Promenade. He gave evidence that the rendering accurately represents how the dwelling would appear seen from the street in relation to lot grade. He gave evidence that the house will not appear to be on top of a hill or burm. For sharp accuracy, he had used a laser tape measure in the preparation of the image. He noted that it constitutes malpractice to issue a misleading document.

152During cross examination, Mr. Pfeffer gave evidence that there is positive slope from the garage door to the street. A below grade garage is not proposed.

153In his closing arguments, Mr. Andres emphasized that the evidence shows the proposal has merit and does not destabilize the IC. The appeal should be allowed. He summarized Mr. Kopec’s evidence as too narrow, by considering only single family dwellings. The IC, he recaps, is not homogeneous with single family dwellings. The evidence shows that an apartment building exists close by with its large flat roof, front facing balconies and greater height. Other flat roofs already exist in the neighbourhood.

154Mr. Andres recapped the evidence of Mr. Goldberg, emphasizing in particular that a .29m height variance is not severe, and that FSI represents ”just a number”. A .74 FSI is reasonable, if the proposal is evaluated overall and in a holistic fashion. The platforms meet the four tests. Also to note, the footprint complies with the Zoning By-laws, requiring no setback variances whatsoever.

155Mr. Andres noted the evidence of Ms. Mercado. While granting that she is a passionate advocate, he said it is important to remember that she is not qualified as an expert witness. Further, Ms. Mercado had put a focus on the Guidelines, which Guidelines TLAB is not obliged to apply.

156Mr. Andres went on to highlight the examples in his book of authority. He closed with the recommendation that the appeal should be allowed.

157In her closing arguments, Amrit Sandhu expressed the City of Toronto’s request that the variances be refused and that the appeal be denied. She framed the discussion of FSI, by saying that FSI appears in the Zoning By-law as a tool for maintaining stability in a neighbourhood. It does so by maintaining consistent patterns of development. It should not be viewed as an artificial constraint, as argued by Mr. Goldberg. Neither, she asserts, is it a subservient or secondary consideration. It intentionally serves to prevent overbuild.

158She summarized Mr. Kopec’s evidence as persuasive, citing his evidence that COA variance approvals at the .74 FSI are not evident in the geographic neighbourhood. It would be inconsistent with the prevailing character of the neighbourhood. The proposal has been shown to fail to address the Guidelines in her summary.

159Ms. Sandhu emphasized the evidence presented, that the .74 FSI in combination with the height variance would serve to make the dwelling appear noticeably larger than the surrounding dwellings.

160Ms. Sandhu noted the evidence presented to the effect that the proposal, if approved, would stand as a negative precedent. As a precedent, it would serve to destabilize the neighbourhood, by opening the way for much higher FSI’s. Ms. Sandhu concluded that the evidence indicates that the proposal should be refused.

161In her closing arguments, Judy Gibson recapped the evidence that the Guidelines are relevant and should be admitted, and that past TLAB decisions, for example that delivered by T. Yao in September 2023 for 43 24th Street, make reference to them. She recalled the evidence indicating that the proposal fails to meet 7 out of the 10 character guidelines contained in the Guidelines.

162She noted that in April 2024, City Planning had requested the applicant to reduce the scope of the variances, to bring the application closer to compliance, but that the applicant had not done so.

163Ms. Gibson emphasized that, while the burden is on the appellant to prove the merits of the appeal, the appellant had failed to provide sufficient foundational evidence to support approval.

164Proposed massing, she pointed out, must respect and reinforce the neighbourhood. Of note, Ms. Gibson observed, is that “we did not hear” the actual assertion from Michael Goldberg that a .74 FSI is consistent with the large study area he defined.

165She emphasized the importance of context. She noted that the proposal’s massing, while perhaps fitting somewhere else, failed to do so in the immediate context of this block of Lake Promenade.

166Ms. Gibson highlighted a point with respect to lot size. She noted that the lot at 290 Lake Promenade is By-law compliant in its dimensions. Even though referred to as “shallow” by Mr. Goldberg, the lot is not undersized. She observed that no relief by way of an FSI variance arises due to deficient lot size.

167Ms. Gibson recapped with respect to FSI, saying that FSI is meant to control the impact of density and massing on neighbouring properties. The proposed FSI is not consistent with the prevailing physical character of the neighbourhood. It would be cited often as a precedent.

168Ms. Gibson noted that some cases presented by Mr. Andres were not in the subject geographic neighbourhood.

169Ms. Gibson summarized the evidence, saying it indicated that this proposal is not a fit in this context. Due to its FSI, the proposed dwelling would be conspicuously out of place in the IC.

ISSUES AND ANALYSIS

170The Applicant has initiated this appeal of the COA’s decision to refuse the applications. In order for the TLAB to approve the requested variances, I must be satisfied that the application meets the requirements of the Planning Act. The burden rests therefore on the Appellant to provide evidence that fully substantiates that the application meets the relevant requirements of the four tests listed in s.45(1).

171Both expert witnesses addressed the standing of the Long Branch Character Guidelines, which are not a statutory document like the Official Plan, but which were approved by Council as an implementation tool for considering the defining physical character of Long Branch.

OFFICIAL PLAN

172A cornerstone of Official Plan policy is to ensure that new development in neighbourhoods respects the existing physical character of the area.

173OP Policy 4.1.5 provides direction for assessing the "fit" of development within a Neighbourhood. The policy contains development criteria which are intended to provide greater specificity regarding the expectation for development in Neighbourhoods.

4.1.5 Development in established Neighbourhoods will respect and reinforce the existing physical character 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 heights, massing, scale, density and dwelling type of nearby residential properties;

d) prevailing building type(s);

e) prevailing location, design and elevations relative to the grade of driveways and garages;

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

g) prevailing patterns of rear and side yard setbacks and landscaped open space;

h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and

i) conservation of heritage buildings, structures and landscapes.

Mr. Kopec identified the geographic area for which he analyzed property data and previous COA decisions:

a. Lake Ontario to the south;

b. Marina Avenue to the north;

c. Long Branch Avenue and Thirty Third Street to the east; and

d. Thirty Sixth Street to the west.

174I accept the description of the immediate context (IC), presented by Mr. Kopec with reference to OP 4.1.5(c) The IC consists of 5 properties. Four are single detached dwellings, including 290 Lake Promenade, and one is an apartment building. These five properties are on the same block of Lake Promenade, facing it, Mr. Kopec notes.

175I agree with the evidence given by a number of witnesses, including Mr. Kopec, to the effect the IC has the characteristics of a special place, one to which the public is drawn by its features. These witnesses stress that the IC is prized by residents. Featuring Len Ford Park, the Great Waterfront Trail and the shoreline of Lake Ontario, the character of the Immediate Context stands out as distinct from that of a common residential street.

176I accept the evidence of Mr. Kopec that homes along Lake Promenade are significantly more visible to the public than those in the interior of the geographic neighbourhood.

177I accept the evidence given by Mr. Kopec that Lake Ontario stands out as the most prominent physical feature of the Geographic Neighbourhood.

OFFICIAL PLAN

178With respect to the general intent and purpose of the OP, I accept the relevance of the sections of the Official Plan, which Mr. Kopec highlights, viz. OP Section 2.3.1:

“A cornerstone policy is to ensure that new development in our neighbourhoods respects the existing physical character of the area, reinforcing the stability of the neighbourhood”, and

Official Plan Policy 2.3.1.1 states:

“Neighbourhoods are low rise and low density residential areas that are considered to be physically stable. Development in Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas.”

179OP Section 4.1.5 states:

“No changes will be made through rezoning, minor variance, consent or other public action that are out of keeping with the overall physical character of the entire geographic neighbourhood.”

180OP Section 4.1 of the Official Plan states:

“Physical changes to our established Neighbourhoods must be sensitive, gradual and “fit” the existing physical character.”

181In my finding, the variance for FSI lies at the heart of this application. Would the proposed FSI variance give rise to inappropriate adverse impacts? Would it reinforce the stability of the neighbourhood? At 0.74 times coverage, where only .35 is permitted, it is of numerical concern, nearly double the standard. Is such density also significant with respect to the adverse impacts on neighbouring properties, the public realm and the streetscape, which it would create?

182Density refers to the size of the building in relation to the lot on which it is located. In the By-law, the floor space index (FSI) is the numerical indicator of what the OP refers to as “density”. It is the ratio of the gross floor area of the building to the area of the lot.

183Mr. Kopec and the LBNA provided considerable evidence and testimony to the effect that the massing of the proposed house does not respect and reinforce the existing physical character of the geographic neighbourhood. Mr. Kopec and Ms. Mercado provided analysis of the proposal, including an assessment of compliance with the OP’s Character Guidelines, which I find supported this conclusion.

184The burden is upon the appellant to provide evidence which substantiates that the proposal meets the requirements of the four tests. With respect to the OP, this substantiation would entail presenting evidence to demonstrate that the proposal would “fit” into the BC and the IC.

185Overall, I do not find Mr. Goldberg’s argument persuasive, in that, while it raises questions about both the Official Plan and the Zoning By-law as tools of evaluation, it fell short of providing sufficient basis in evidence for TLAB to reach the conclusion that the application meets the four tests set out in legislation.

186The Official Plan and the Zoning By-law represent two of the four tests, against which TLAB is mandated to evaluate proposals. I would rather have heard Mr. Goldberg’s argument demonstrate with evidence how the proposal meets these tests.

187This would have involved foundational evidence, showing that the proposal sufficiently satisfies the intent and purpose of the Official Plan and the Zoning By-law, as the tests demands. This level of evidence was lacking. Mr. Goldberg made general assertions to this effect. However, general assertions without detailed substantiation do not carry the weight of evidence. I did not hear persuasive evidence from him to counter the detail evidence given by the witnesses opposing the proposal.

188I was persuaded by Mr. Kopec’s evidence that the proposed dwelling, due to its .74 FSI and 9.79 m height, would have undue visual impact, appearing notably larger than other single detached dwellings in the IC.

189The provisions of the By-law do not operate in isolation. The intent and purpose of the FSI maximum in the By-law is to assert an additional level of control beyond that which is provided by the By-law building envelope parameters – height, length, depth, and rear, front and side yard setbacks. The purpose of the FSI maximum in the By-law is to regulate the total amount of development on the site, even if the development otherwise meets all the setback requirements. In the language of the governing OP, the overall proposal should reflect the prevailing scale, massing and density of the neighbourhood.

190Neither the evidence presented by Mr. Goldberg as verbal testimony nor that contained in his Expert Witness Statement laid sufficient foundational support, in my view, for the tribunal to find that the proposal would fit into the BC. I did not hear persuasive detail evidence as to how and why the proposal would fit in, and so meet the test of the OP.

191In his Expert Witness Statement (M. Goldberg EWS 11.1.4), Mr. Goldberg opines broadly that the proposal fits the general physical character of the Neighbourhood/ Study Area. He writes, “Like there are differences in many respects in the existing character of the Study Area, the proposal is not the same as, though generally fits, the existing physical character of the neighbourhood…” The evidence does not continue, however, with sufficient supporting detail, to persuade me that the dwelling would not appear too large or be out of character with the neighbourhood. I found his assertion of “fit” lacking in substantiation.

192Secondly, the evidence given by Mr. Goldberg also failed to lay sufficient foundational support for the tribunal to find that the proposal would fit into the Immediate Context, with its prized, rare features - Lake Ontario, Len Ford Park and its cottage-style dwellings. Again, its massing would be of precedent setting magnitude in the IC. In fact in the IC, the undue visual impact would be even more pronounced than in the BC. This undue visual impact, in my finding, is not in keeping with the intent and purpose of the OP. It impacts both neighbouring properties and the public realm.

193I prefer the evidence of Mr. Kopec which, based upon its analysis of past COA decisions, demonstrated that the proposal does not fit in, and does not meet, the test. I accept his evidence that the proposal would be of both precedent-setting massing and undue impact on both neighbouring properties and on the public realm.

194In particular, I preferred the evidence of Mr. Kopec that a .74 FSI would not fit, since it would be the highest FSI for a detached dwelling in the BC and the IC.

195For the reasons outlined above, I am not satisfied that the Appellant has provided a sufficient foundation of evidence to support a determination that the proposal maintains the general intent and purpose of the OP Policy 4.1.5 b) and c). Considering all of the above reasons, the proposal fails the test of the Official Plan, in my finding.

196The findings stated above are on their own sufficient for the variances to fail. For the sake of completeness, I will address the remaining three tests mandated for the approval of variances: maintenance of the general intent and purpose of the Zoning By-law, “minor” and “desirable for the development of the land”.

ZONING BY-LAW

197The FSI is .74, where .35 FSI is permitted. This forms the crux of the Zoning By-law evaluation. It is incumbent upon the appellant to lay sufficient foundational support of evidence to demonstrate that an FSI of .74, where .35 FSI is required, meets the intent and purpose of the Zoning By-law. I was not persuaded of the sufficiency of the evidence given that the FSI meets this test. Rather, Mr. Goldberg’s evidence tended instead to question the efficacy of FSI as a tool of evaluation. In my finding, the evidence supporting a .74 FSI was insufficient and failed to meet the test.

198Mr. Goldberg instead advised a qualitative approach to evaluation, without however, providing adequate point- by -point evidence in this regard. He suggested the tribunal could approach the Zoning By-law evaluation, in terms of how this document, “might evolve in the future”.

199In my finding such an approach must be rejected, being subjective and hypothetical. As it should do, the tribunal works with the provisions of the OP and Zoning By-law, as they stand today.

200In my finding, however, the proposal does not respect and reinforce the prevailing physical character of the neighbourhood. I prefer the evidence of Mr. Kopec. I find the variances proposed to be inconsistent with past COA approved variances, not only in the IC but also across the geographic neighbourhood.

201I note Mr. Goldberg’s evidence that the OP standard for multiplexes is more permissive than that for single family dwellings. However, I agree with Ms. Sandhu’s point in this regard, that such a comparison is purely hypothetical. The subject proposal is for a single detached dwelling. It is to be judged as such.

202I accept the evidence of Mr. Kopec, Ms. Mercado and other witnesses that the proposal would result in undue visual impact on the streetscape of Lake Promenade and the public realm of Len Ford Park in the IC, to the detriment of its enjoyment by members of the public and nearby residents who come here as a destination.

203I note Mr. Goldberg’s evidence that no setback variance is proposed. Setback considerations, therefore, do not figure into the tribunal’s consideration of massing. The role of TLAB remains, however, to evaluate the proposal on the basis of the variances requested.

204In my finding, the proposed FSI and height variances fail to meet the general intent and purpose of the Official Plan, in that they fail to show sensitivity to the prevailing character of the IC.

205I agree with Ms. Gibson’s point in her closing, that the lot size is compliant with the Zoning By-law. The lot size may be smaller than some nearby lots in the IC, as Mr. Goldberg notes, but the lot is not undersized. The lot size itself does not disadvantage the proposal, nor is it a basis for requesting relief.

206I accept the expert witness opinion of Mr. Kopec that the FSI variance proposed would give rise to inappropriate massing. Further, I find that the FSI variance fails to respect the general intent and purpose of the Zoning By-law, by not respecting and reinforcing “the physical character of buildings, streetscapes and open spaces” in the neighbourhood.

MINOR

207I do not accept the opinion of Mr. Goldberg that the variances sought are minor. In terms of their massing impact, I prefer the evidence of Mr. Kopec, whose evidence indicates that their magnitude would give rise to undue adverse impact on the public realm. Neither is the FSI numerically minor, at nearly double that permitted. I agree with Mr. Kopec that the height variance, departing from the prevailing character and COA permissions granted, is not minor. Neither are the platform variances minor, in my view.

208I accept the evidence of Mr. Kopec that the order of magnitude of the FSI and height variances sought is inconsistent with those approved and occurring in both the IC and in the neighbourhood.

209The findings stated above are on their own sufficient for the variances to fail. For the sake of completeness, I will address the remaining test of being “desirable for the use of the land”.

DESIRABLE

210I find that the proposal fails to demonstrate the requisite sensitivity to the immediate context of the neighbourhood. I find that the proposal would not result in a dwelling which would be desirable, existing harmoniously within the immediate context. To support this finding, I note that 19 letters of opposition were received. Seven neighbours spoke in opposition as witnesses at hearing. Their evidence, summarized above, consistently speaks against the case for the proposal being deemed to be desirable for the development of the land.

211I accept the evidence of the expert witness, Mr. Kopec, to the effect that the proposal fails to meet the test of being desirable for the appropriate development of the land.

LONG BRANCH CHARACTER GUIDELINES

212In my finding, the proposal fails on the basis of the four tests. Additional reference to the Long Branch Character Guidelines supports this finding. I find the evidence of Mr. Kopec persuasive in this regard, with respect to windows, neighbourhood roofscape, and the materiality of façade elements. However, for clarity, the proposal fails on the basis of the four tests of S.45 of the Planning Act. This finding stands as independent of the Long Branch Character Guidelines, although the Guidelines serve to support it.

CONCLUSION

213As noted at the beginning of this Decision, it rests upon the Appellant to provide a sufficient basis in evidence for TLAB to reach the conclusion that the application meets the four tests set out in legislation. It is not sufficient for the Appellant’s representatives to attempt to counter the opposition’s evidence and testimony. Rather, it is incumbent upon the Appellant to provide a sufficient positive foundation for approval.

214I find that the Appellant has not provided a sufficient basis in evidence for the TLAB to find that the application maintains the general intent and purpose of the Official Plan and the Zoning By-law, and is minor and desirable for the development of the land. The application fails each of the four tests.

DECISION AND ORDER

215The Appeal is dismissed. The Committee of Adjustment decision noted above is final and binding, and the file of the Toronto Local Appeal Body is closed.

B. Mullock

Panel Member