Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-08-05

25 139873 S45 12 TLAB

2025 ONTLAB 345, The Leo Baeck Day School (Re)

DECISION AND ORDER

Issuance Date:

August 5, 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):

THE LEO BAECK DAY SCHOOL

Applicant(s):

CS & P ARCHITECTS

Property Address:

501 ARLINGTON AVE.

COA File No.:

24 242117 STE 12 MV (A1003/24TEY)

TLAB Case File No.:

25 139873 S45 12 TLAB

Hearing Date(s):

July 28, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

T. KEZWER

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

THE LEO BAECK DAY SCHOOL

D. BRONSKILL

Applicant

Participant

CS & P ARCHITECTS

M. MAISHLISH

Participant

B. MORGAN

Participant

M. GATT

Participant

S. SHAH

Participant

J. LAWSON

Participant

M. CARNIOL

Participant

E. GATT

Participant

F. CARVALHO

Participant

N. BIRAN

Participant

E. TRESTAN

Participant

J. DEITCHER

Participant

L. MICHAELS

Participant

L. CADESKY

Participant

K. MACMANUS

Participant

J. TANNER

Participant

E. TASSONE

INTRODUCTION AND CONTEXT

1This hearing before the Toronto Local Appeal Body (the “Tribunal”) involves a minor variance application for the property located at 501 Arlington Avenue (the “Subject Property”). The Subject Property is located at the southeast corner of Durham Avenue and Arlington Avenue.

2The Applicant/Appellant appeals a denial by the Toronto and East York panel of the Committee of Adjustment of an application for four minor variances. The proposal calls for an expansion of the existing school building on the Subject Property by building a two-storey addition on the north end of the Subject Property.

3The appeal is being allowed and the proposed variances are approved.

4The Subject Property is designated as Neighbourhoods on Map 17 (Land Use) of the City of Toronto Official Plan (the “Official Plan”). The Subject Property is zoned Residential Zone Two R2 (159). The former City of York Zoning By-law 1-83 (the “Zoning By-law”) applies to the Subject Property, which is not included in the City-wide Zoning By-law 569-2013. In addition, there is a site-specific by-law to permit the development of the existing school on the Subject Property, being By-law 765-70.

5On March 2, 1970, By-law 765-70 was approved by City Council permitting the development of the existing 2-storey (12.58 metres) school building with a basement level.

6The school building was constructed in 1971 by the Borough of York Board of Education (now the Toronto District School Board) as the Arlington Senior Public School, which was later known as the Arlington Middle School. The school operated on the Site until its closure in 2010.

7The overall gross floor area of the existing building is 7,385 square metres, resulting in a density of 1.5 FSI. The existing building is set back a minimum of 3.19 metres from Arlington Avenue to the west, 17.59 metres from Durham Avenue to the north, 0.12 metres from the east lot line and 2.34 metres from the south lot line.

8To the rear (east) of the building is a surface parking area and a playing field. While the parking area and playing field fall outside of the boundaries of the Subject Property, the rezoning approval in 1970 includes permissions for the use of both the parking area and playing field by the school.

9In 2011, the Leo Baeck Day School acquired the Site. On November 30, 2011, the Committee of Adjustment approved a minor variance application (File No. A0623/11TEY) to permit the operation of a private school on the Subject Property. The application sought permission for the use of the Subject Property as a private school and did not propose any changes to the built form of the existing 2-storey school building.

10Prior to the hearing, I visited the Subject Property and the surrounding neighbourhood in which it is situated. In addition, I reviewed the pre-filed materials.

Hearing Synopsis

11There was one Party, being the Applicant/Appellant in this hearing, and sixteen individuals elected Participant status. The Tribunal heard testimony from the eight Participants who were present at the hearing.

12Ms. Nazila Atarodi West, the Chair of the Tribunal was also in attendance at the hearing as an observer.

13The matter was scheduled for one day, with a second day reserved in the event that it was not completed during the originally allotted date. The matter was heard in one day, and the second hearing day was not needed.

Exhibits

14Eight exhibits were entered into the record. The exhibits are as follows:

Exhibit A: TLAB Expert Witness Statement of Ms. Al-Sharari on behalf of the Applicant/Appellant which includes various exhibits

Exhibit B: Participant Witness Statement of James Deitcher

Exhibit C: Participant Witness Statement of Laura Michaels

Exhibit D: Participant Witness Statement of Lee Cadesky

Exhibit E: Participant Witness Statement of Elizabeth Tassone

Exhibit F: Participant Witness Statement of Eddy Gatt

Exhibit G: Participant Witness Statement of Moshe Maishlish

Exhibit H: Participant Witness Statement Evan Trestan

Requested Minor Variances

15The variances before the Tribunal are as follows:

1. Section 8(3)(a), By-law 1-83

The minimum permitted non-residential rear yard depth is 9 m.

The altered building will have a non-residential rear yard depth of 0.12 m.

2. Section 16(159)(i)(a), By-law 1-83

No part of any building above grade shall be closer than 50 ft (15.24 m) to the southerly limit of Durham Avenue.

The altered building will be located 3.45 m from the side (north) lot line, abutting Durham Avenue.

3. Section 8(3)(a), By-law 1-83

The minimum required side yard setback is 4.5 m.

The altered building will be located 3.45 m from the side (north) lot line.

4. Section 8(3)(a), By-law 1-83

The maximum permitted floor space index is 0.8 times the area of the lot (3,968 m2).

The altered building will have a floor space index equal to 1.716 times the area of the lot (8,513 m2).

THE LEGISLATIVE AND POLICY FRAMEWORK

16Provincial Interest - S. 2

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

17Provincial Policy – S. 3

A Decision of the Tribunal must be consistent with the 2024 Provincial Planning Statement for the subject area.

18Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws, the Tribunal must be satisfied that the applications meet all of the four tests under section 45(1) of the Planning 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

Ms. Al-Sharari

19Ms. Al-Sharari was qualified to provide expert opinion evidence in the area of land use planning. Ms. Al-Sharari is a consulting land use planner and a Senior Planner with Bousfields Inc. where she has worked since May 2021.

20Ms. Al-Sharari has a Bachelor of Community Design, Honours Urban Design and Planning from Dalhousie University (2017) and a Master’s of Science degree in Infrastructure Planning, Appraisal and Development from University College London (2020). Ms. Al-Sharari’s land use planning experience includes several residential and mixed-use development approvals for mid-rise and tall buildings in the City of Toronto, and she also has experience working on institutional buildings.

21Ms. Al-Sharari is a Registered Professional Planner and a full member of the Canadian Institute of Planners and the Ontario Professional Planners Institute.

22Mr. Bronskill suggested in his closing argument that the Tribunal take judicial notice that Ms. Al-Sharari’s opinions in support of the proposal is supported by the City, who is the first defender of the public interest, and that it permeates all City departments, through to the local City Councillor and through City Council in the fact that there is no resolution from City Council directing the city solicitor to attend this hearing in opposition to the proposal. I agree with Mr. Bronskill and take judicial notice of these items.

23Ms. Al-Sharari provided her opinion that the proposal meets matters of provincial interest, and is consistent with the 2024 Provincial Planning Statement. In addition, Ms. Al-Sharari provided her opinion that the proposed variances individually and cumulatively meet the four tests for a minor variance outlined in section 45(1) of the Planning Act.

24Ms. Al-Sharari’s evidence will be reviewed in more detail in the Issues and Analysis section of this decision.

Mr. Deitcher

25Mr. Deitcher spoke in support of the expansion and improvement of the school facility. Mr. Deitcher is an immediate neighbour of the Subject Property and he asserted that the improvements to the school are generational while the construction will be temporary. In addition, Mr. Deitcher asserted that the school is an important part of the community just like the residents. Mr. Deitcher stated that the traffic conditions are going to remain in the neighbourhood, as this is where the school is located.

Ms. Michaels

26Ms. Michaels is an immediate neighbour of the Subject Property and she spoke in opposition to the proposal. Ms. Michaels provided a detailed presentation in support of her position that proposal should not be allowed.

27From Ms. Michaels’ perspective, the school does not have a satisfactory relationship with the neighbours and to engage in this renovation project would be taking a vitriolic situation and making it worse.

28Ms. Michaels states that she finds it impossible to work from home of the noise from kids on their recess. In addition, Ms. Michaels stated that there are traffic issues which are not appropriately dealt with. Ms. Michaels asserted that the administration has tried hard but there is an unmanageable traffic and noise situation.

29Ms. Michaels stated that the greenspace on the north end of the Subject Property, which she refers to as a buffer zone, is very important because of the imbalance of the student population versus the residential population. From her perspective, the increasing intensification of the Subject Property by expanding the school building is too much for the neighbourhood to absorb.

30Ms. Michaels views the proposal as a threat to her property’s privacy. For example, the trees on the north end of the property provide year-round screening. The new deciduous trees would not provide this year-round screening and Ms. Michaels stated that they will take a lifetime to grow.

31In addition, Ms. Michaels asserted that the parking and traffic conditions are difficult today and they result in too great an imposition on the neighbours. This was a central theme of Ms. Michaels’ testimony – that the school is placing a burden on neighbours and not providing a benefit in return.

32Ms. Michaels provided a review of what she thinks the legal test is for a minor variance, including the intention of the Zoning By-Law and the Official Plan. I note that Ms. Michaels reviewed the old City of York Official Plan which does not apply to the Subject Property. Ms. Michaels asserted that the mass of the proposed building is too intense for the site and that this relates to the density of the proposal. There will be a loss of openness on the site, and the loss of a separation between Ms. Michaels’ property and the proposed building.

33Ms. Michaels asserted that privacy and overlook is a critical issue for the proposal. Ms. Michaels stated that there will be a loss of 13 mature trees and new trees will take 30 years to grow. On cross-examination, Mr. Bronskill challenged that number as the evidence from Ms. Al-Sharari is that the proposal calls for the removal of 7 trees plus 3 City trees due to the construction of a new public sidewalk on the right-of-way for Durham Avenue.

34Ms. Michaels argued that the needs of the school far outstrips the size of the lot it is on, so the school borrows from the public park for programming needs, asking the neighbourhood to absorb the deficiencies of the property.

35Ms. Michaels’s presentation contained inaccurate information, such as referring to the Subject Property as having a POPS space. In addition, she made allegations about the school violating the 2011 minor variance approval it received for a private school to operate on the Subject Property. However, the original minor variance did not prevent any future development proposals on the Subject Property.

36On cross examination, Ms. Michaels asserted that her primary concern is regarding the depth of the property. In addition, she asserted that the contributions of the school to the development of Cedarvale Park – which is accessible to members of the public - does not outstrip the burdens that are experienced by the local residents.

37Ms. Michaels gave opinions during her testimony. While the Tribunal allowed this, she was not qualified as an expert witness to provide opinion evidence in the area of land use planning.

38The land use planning arguments raised by Ms. Michaels have been considered and will not be reviewed in any further detail throughout this decision.

39I also want to note that in addition to Ms. Michaels, there were other Participants who gave opinions during their testimony. The Tribunal allowed this, however, none of these participants were qualified as an expert land use planning witness.

Mr. Cadesky

40Mr. Cadesky has resided in the neighbourhood since 2019. He stated that sometimes it can take 20 minutes to travel 10 metres. The traffic is congested once or twice a day, and it is difficult when he is driving his child to school. Mr. Cadesky does not feel that the school manages the traffic situation properly. In addition, he is concerned about potential construction and its impact on the traffic situation.

Ms. Tassone

41Ms. Tassone stated that there are a number of by-laws which apply to the proposal. Ms. Tassone stated that the school was aware of these by-laws when it bought the Subject Property. Ms. Tassone stated that she is aware that the school needs the space, however, she asserted that this is not the proper location for the school. The proposal will be a construction nightmare which will be a two-year nightmare for the neighbours. Ms. Tassone asserted that the area leading to Cedarvale Park was intended to be a quiet, open space parkland area.

Mr. Gatt

42Mr. Gatt asserted that the proposal does not meet the four tests for a minor variance, and that it fails in ways that will have a significant and lasting negative impact on the neighbourhood.

43From his perspective, the proposed 11 foot setback from Durham Avenue, a reduction of 80% from the required setback, is not minor by any reasonable interpretation. In terms of real world impact, there is a stark contrast between an open physical corridor to Cedarvale Park which would now be replaced by a two-storey structure.

44The current open space provides an invaluable privacy buffer year-round, and is also a barrier for what Mr. Gatt describes as intense security lights that are now required for the school. Mr. Gatt asserted that these invasive security lights will now be brought closer to the neighbouring houses.

45Mr. Gatt stated that proposal will result in a negative change in the quality of life for residents. From his perspective, the proposal is not about balancing institutional needs with the residential neighbourhood’s needs, but institutional expansion at the expense of the community.

46Mr. Gatt asserted that the beneficiaries of the development are limited to those with direct affiliation to the private school and not to the community at large.

47Mr. Gatt asserted that the pedestrian safety improvements are measures that can and should be implemented independently of the expansion and not as incentives tied to its approval. From Mr. Gatt’s perspective, the zoning by-law is clear in how it is drafted in that Durham Avenue is to be an entry into Cedarvale Park and beyond. The school’s proposal undermines the intent to keep the space open for the park.

48Mr. Gatt also noted that the proposal includes the removal of mature trees and reduces what he characterizes as usable green space which is replaced with an institutional structure. In addition, Mr. Gatt complained that the park is functioning as what he characterizes as an unofficial schoolyard, which is a burden on the neighbourhood.

Mr. Maishlish

49Mr. Maishlish has lived in the area for approximately 11 years. The space identified for development - which he characterizes as a green space – is part of his daily routine and plays a vital role in his quality of life and that of the broader community. From Mr. Maishlish’s perspective, the private lands on the north side of the Subject Property provide a safe gateway to the adjacent park.

50Mr. Maishlish asserted that the proposal contradicts the intent and protections under the zoning by-law which are designed to protect the neighbourhood including community assets and the green space on the school’s private property.

51Mr. Maishlish asserted that there will be a marked increase in traffic congestion, elevated noise, and a loss of privacy for the adjacent homes due to the scale and proximity of the new construction. From Mr. Maishlish’s perspective, the proposal risks undermining the quiet family-oriented scale of the neighbourhood by introducing institutional activity beyond a scale which the neighbourhood is capable of handling.

52Mr. Maishlish asserted that the traffic congestion is growing as vehicles enter the neighbourhood for the school. Mr. Maishlish stated that he is concerned that the school will increase its enrolment. Mr. Maishlish believes that increased enrolment is not legal and calls for the institution to face concrete penalties to deter expansion behaviour that he does not agree with.

53With regards to the proposed setback of 3.45 m from the north end of the Subject Property, Mr. Maishlish asserted that the setback is shorter than the other neighbouring properties, and in addition, the proposed building is much larger than the neighbouring residences. The proposal will be detrimental to the look, feel and character of the neighbourhood.

54Mr. Maishlish asserted that the proposal will change the dynamic of the area and will impact the traffic as well, which in his estimation, impacts hundreds of households.

55Mr. Maishlish also asserted that the letter from the City Councillor in support of the proposal highlights new sidewalks, seating, lighting and curbs. However, from his perspective, these are items that should have already been completed by the City instead of waiting for an offer from a private institution. Mr. Maishlish believes that there will be a double digit hit to property values which will be experienced by residents due to the proposal. In addition, none of the planners will be impacted by the development or forced to live with the burden imposed on the residents.

56Mr. Maishlish asserted that there is lots of noise on the street and that this noise will now be louder as there will be less space to congregate in and the proposed structure will be closer to the homes on the opposite side of Durham Avenue. From his perspective, the proposed deciduous trees should be replaced with evergreen trees that do not lose their needles. However, Mr. Maishlish stated that the issue with this is that it can take 10-20 years for these trees to reach maturity, and this is a long wait.

57Mr. Maishlish asserted that residents should not need to sacrifice their rights to privacy in order to benefit from the ongoing aspirational expansion of the school. Mr. Maishlish asserted that the opposition of the neighbours is proof enough that the proposal is detrimental to the community at large.

58Mr. Maishlish asserts that the problem is the school’s making only. Options for expansion that Mr. Maishlish would agree with include: portables, expanding upwards, reducing the student population, etc.

Mr. Trestan

59Mr. Trestan has lived in the neighbourhood for over a decade, and he asserted that the proposal will be a significant detriment to the peaceful enjoyment of the neighbourhood and environment for the community. Mr. Trestan asserted that the proposal does not pass the four tests for a minor variance.

60Mr. Trestan stated that the huge expansion will eliminate a green space area and mature trees that the community has always treasured. It will also eliminate space that is currently used as a gathering space for the public. From Mr. Trestan’s perspective, the school has never worked with the community to address traffic issues.

61Mr. Trestan noted that the expansion is not in the best interests of the community and the original 50-foot setback in the bylaw should be respected. Mr. Trestan asserted that the proposal does not align with the Official Plan. It is not keeping with the nature of a low-density neighbourhood. From his perspective, this is an overall massing issue which will impose significant hardship on the neighbours and surrounding areas.

62Mr. Trestan further asserted that the neighbours in opposition do not have a lawyer or a certified planner but this is a strong and informed community that cares and wants the best possible outcome for the community. Mr. Trestan argued that the school has not reached out to residents of the neighbourhood, there has been no consultation or compromise, and only an invitation to attend a hearing.

63From Mr. Trestan’s perspective, the opposition is about the fact that the proposal will stunt the development and enjoyment of the community. Allowing expansion is not the right thing to do, it would create a terrible precedent, and it would cause the residents to lose faith in by-laws and city boards that are mandated to act in the best interests of the community. It would destroy a beautiful and cherished green space forever. It is important to note that the space that Mr. Trestan is referring to is privately owned land that belongs to the school.

64On cross-examination Mr. Trestan stated he does not have information regarding the proximity of the student population to the school. In addition, he stated that he did not attend the voluntary consultation that was held virtually by the school with the community on January 22, 2025. From Mr. Trestan’s perspective, there was no general outreach to the neighbourhood. There was one consultation which he did not attend.

Additional Participant Statements

65Participant Statements were also provided by Bessy Morgan, Sona Shah, Jonardo Lawson, Mira Carniol, Fatima Carvalho, Niv Biran, Kit Macmanus, and Joy Tanner. Even though these individuals were not in attendance at the hearing, I have read and considered their participant statements.

66In addition, Exhibit A contained 13 letters in support of the proposal. The authors of these letters did not elect Participant status at the hearing.

ISSUES AND ANALYSIS

Provincial Interest

67Ms. Al-Sharari provided her opinion that the proposal meets matters of provincial interest outlined in section 2 of the Planning Act, including: (i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities. I agree and find that other matters of provincial interest are met including: (f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems; (p) the appropriate location of growth and development; (q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians. I find that the proposal meets matters of provincial interest as outlined in section 2 of the Planning Act.

2024 Provincial Planning Statement

68Ms. Al-Sharari provided her opinion that the proposal is consistent with the Policies contained in the 2024 Provincial Planning Statement. Ms. Al-Sharari cited Policies 2.1.6 and 2.3.1.3 which discuss the need to achieve complete communities which she opined the proposal helps to achieve. I will not be reviewing these Policies in further detail. I have considered the cited policies and the 2024 Provincial Planning Statement in general, and I find the proposal to be consistent with this document.

Minor Variance Test

Do the Variances Maintain the General Intent and Purpose of the Official Plan

69Ms. Al-Sharari provided her opinion that the four requested variances individually and cumulatively maintain the general intent and purpose of the Official Plan.

70As noted previously, the Subject Property is designated as Neighbourhoods in the Official Plan. The surrounding properties to the northwest and north are also designed Neighbourhoods. The lands to the east, south, and southwest are designated as Parks. In addition, the lands to the east and south are identified as part of the Green Park Space System on Map 2 (Urban Structure) of the Official Plan.

71Ms. Al-Sharari reviewed The Healthy Neighbourhoods policies of the Official Plan and cited Policy 2.3.1(7)(a) which provides that community and neighbourhood amenities will be enhanced where needed by improving and expanding existing parks, recreation facilities, libraries, local institutions, local bus and streetcar services and other community services.

72With regards to Chapter 4 of the Official Plan, Ms. Al-Sharari noted that the introductory text of Policy 4.1 of the Official Plan emphasizes the importance of educational uses. Its states that “historical development patterns have also added to the variety of local educational uses in Neighbourhoods. Policies regarding the suitable integration of schools within the context of Neighbourhoods are an important consideration for ensuring quality of life”.

73Policy 4.1(1) of the Official Plan provides that Neighbourhoods are considered physically stable areas made up primarily of residential uses in lower scale buildings, with additional permissions for “low scale local institutions” as well as parks and small-scale retail, service and office uses, among other uses. It adds that low scale local institutions play an important role in the rhythm of daily life in Neighbourhoods and include such uses as: schools, places of worship, community centres, libraries, day nurseries and private home daycare, seniors and nursing homes and long-term care facilities, public transit facilities, utility and telecommunications installations, and public services and facilities provided by the local, provincial and federal governments.

74Ms. Al-Sharari provided her opinion that the Official Plan under Policy 4.1(1) provides that schools are to be located within neighbourhoods to serve local residents in the surrounding areas as well as wider geographical areas. I agree and find that this Policy recognizes the importance of educational uses in neighbourhoods.

75Ms. Al-Sharari’s opinion is that the proposal is a permitted use in the Official Plan and is required for complete communities to be achieved. The proposals enhances the existing school by introducing a new 2-storey addition with important resources for students that will allow for improved educational programming. In addition, elevator access is being provided to enhance the accessibility of the building.

76Ms. Al-Sharari opined that the Subject Property is not designated parks or other open spaces in the Official Plan and the loss of the area is not considered the loss of public open space.

77Ms. Al-Sharari’s opinion is that there are ample park and open spaces with Cedarvale Park on the west side, and that public access to the park will continue to be provided. There is a new sidewalk proposed in the right of way of the street to the north of the Subject Property. I accept Ms. Al-Sharari’s opinions outlined above, and find that the proposal meets the intent and purpose of Policy 4.1(1).

78I find that Policy 4.1(1) specifically contemplates the use of the Subject Property as a school. In addition, I find that the northern portion of the Subject Property is not designated as Parks or Other Open Space Areas in the Official Plan. Therefore, the improvement of these lands would not be considered a loss of public open space.

79Ms. Al-Sharari’s opinion is that Policy 4.1(9) is the applicable Policy for development criteria as it deals with lots that vary in terms of lot size and configuration, and which contain different uses within Neighbourhoods. In this instance, there is an existing educational use of the Subject Property which is larger than the immediate and surrounding area. I accept Ms. Al-Sharari’s opinion that Policy 4.1(9) is the applicable policy and not Policy 4.1.5.

80Policy 4.1(9) lists various criteria, including that developments will:

a. have heights, massing and scale that are respectful of those permitted by zoning for nearby residential properties, while taking into account the existing form of development on the infill property;

Ms. Al-Sharari provided her opinion that the proposed height and massing of the 2-storey addition have been designed to respect and reinforce the built form of the existing school building on the Subject Property. The proposed height, building depth, and east and west setbacks are consistent with those of the existing structure. I agree with Ms. Al-Sharari’s opinion on this matter.

b. have setbacks from adjacent residential properties and public streets that are proportionate to those permitted by zoning for adjacent residential properties, while taking into account the existing form of development on the infill property;

Ms. Al-Sharari provided her opinion that the proposed setbacks from adjacent public streets are proportionate to those permitted by the zoning for nearby residential properties and reflect the existing built form of surrounding developments. The nearby residential properties are subject to the City-wide Zoning By-law 569-2013, and are zoned Residential Multiple RM (f12.0; u4; d0.8(x252). The RM zone requires a minimum rear yard setback of 7.5 metres or 25 percent of the lot depth. With respect to the front yard setback, the zoning by-law measures the minimum required front yard setback based on an average of the front yard setbacks of the two abutting lots in the Residential Zone. If there are no abutting residential lots, the minimum required front yard setback is 6.0 metres.

The proposed setback of 0.12 metres from the east lot line is the same of that of the existing building, maintaining consistency on the site.

Ms. Al-Sharari provided her opinion that the proposed north setback of 3.45 metres is generally consistent with those of the residential properties located directly to the north of the Subject Property (at 2 to 10 Durham Avenue and 509 Arlington Avenue). These residential properties exhibit a varied setback pattern from the street, ranging from approximately 3.0 metres (8 Durham Avenue) to 5.8 metres (2A and 2B Durham Avenue). As noted above, the minimum front yard setback for the properties on the north side of Durham Avenue is based on the average of the abutting property lines, and so the setbacks vary between each of the properties.

In addition, the detached dwellings at 11 to 27 Durham Avenue to the west of the Subject Property are set back between approximately 1.39 metres to 3.8 metres from Durham Avenue. As previously stated, the minimum front yard setback based on the applicable zoning would vary between each of the properties.

Ms. Al-Sharari’s opinion is that the proposed setback of 3.45 metres to the north of the property is proportionate and within the range of setbacks permitted by the zoning for nearby residential properties and reflect the existing built form of developments. I agree and accept Ms. Al-Sharari’s opinion on this matter.

c. provide adequate privacy, sunlight and sky views for occupants of new and existing buildings by ensuring adequate distance and separation between building walls and using landscaping, planting and fencing to enhance privacy where needed;

I find that there is adequate separation distance between the proposed addition and the properties to the north of the Subject Property. The distance includes a 3.5 m setback, a 20 m right of way for Durham Avenue, and then the front-yard setback for each of these properties. In addition, trees will be planted on the Subject Property to enhance privacy.

d. front onto existing or newly created public streets wherever possible, with no gates limiting public access;

The fronting of the Subject Property will not change.

e. provide safe, accessible pedestrian walkways from public streets; and

As part of the proposal, the sidewalk in the Durham Avenue right-of-way will be rebuilt with safety and accessibility features. This will allow for improved public access to Cedarvale Park.

f. locate, screen and wherever possible enclose service areas and garbage storage and parking, including access to any underground parking, so as to minimize the impact on existing and new streets and on residences.

Not applicable.

In conclusion, I have reviewed the criteria of Policy 4.1(9) and finds that proposal meets these criteria.

81The built form policies in Chapter 3.1.3 of the Official Plan are complementary to the criteria for evaluating developments in Neighbourhoods pursuant to Chapter 4.1. Ms. Al-Sharari referred to Polices 3.1.3(1) and 3.1.3(5) which she opined contain the most relevant built form policies for the Subject Property.

82Policy 3.1.3(1) provides that development is to fit with its existing and planned neighbourhood context and is to fit the existing physical character of buildings, streetscapes and open space patterns in these areas. However, Policy 4.8(1) of the Official Plan states that numerical standards for building types, height, density, setbacks etc., are to ensure that new development will be compatible with the physical character of Neighbourhoods.

83Ms. Al-Sharari opined that the proposed development is to be compatible with its existing and planned context, and that compatible does not mean “identical to” but rather means the ability to co-exist without unacceptable impacts of one upon the other. The proposed built form is anticipated by the Official Plan which implies a degree of compatibility of the permitted low-rise residential uses and non-residential uses such as schools. Ms. Al-Sharari’s opinion is that the proposed development is compatible with the existing physical character of the neighbourhood and will not result in any unacceptable built form impacts.

84Ms. Al-Sharari provided her opinion that the proposed variances will facilitate infill development through the construction of a new school addition that respects and reinforces the existing physical character of the geographic neighbourhood, will fit harmoniously with the existing and planned built form context, while taking into account the existing lot pattern and existing school on the Subject Property. I agree and find that the policies of the Official Plan are met, including Policy 3.1.3(1).

85In addition, I would like to briefly note Policy 3.1.3(1)(e) which provides that development is to preserve existing mature trees wherever possible and incorporate them into the development site.

86The Arborist Report dated September 25, 2024, prepared by Peter Wynnyczuk, provides that the proposal will result in the removal of 7 trees. These trees will be replaced with a 3 to 1 replacement ratio, which will result in the planting of 21 new trees located along Arlington Avenue and Durham Avenue, adjacent to the 2-storey addition. There are also 3 City trees in the right-of-way of Durham Avenue that will be affected to allow for the construction of a new public sidewalk. Ms. Al-Sharari noted that the replacement of the City trees is not required as the loss of tree is due to City design. Urban forestry has reviewed the minor variance application and is satisfied with the proposal, which can be seen in their memorandum dated March 12, 2025, which submitted to the Committee of Adjustment.

87Ms. Al-Sharari provided her opinion that the proposed 2-storey addition will retain mature trees to the extent possible. I agree and accept Ms. Al-Sharari’s opinion on this matter.

88Policy 3.1.3(5) provides that development will be located and massed to fit within the existing and planned context, define and frame the edges of the public realm with good street proportion, access to direct sunlight and daylight on the public realm by among other items, providing harmonious streetwall heights and setbacks that fit harmoniously with the existing and/or planned context.

89The proposed addition is 2-storeys in height (10.30 metres to the flat roof and 12.12 metres to the clerestory). Ms. Al-Sharari provided her opinion that the height of the addition is consistent with the height of the existing building on the Subject Property, is less than the maximum 4-storeys permitted by the Official Plan, and is less than the applicable zoning by-law which allows for up to 14 metres and 3 storeys. Furthermore, the proposed height is also consistent with the heights of the low-rise residential houses in the surrounding neighbourhoods, which are predominantly comprised of detached and semi-detached dwellings that 2- and 3-storeys in height. I agree with Ms. Al-Sharari and find that Policy 3.1.3(5) is met in these circumstances.

90In conclusion, I find that the proposal maintains the general intent and purpose of the Official Plan.

Do the Variances Maintain the General Intent and Purpose of the Zoning By-law

91Ms. Al-Sharari provided her opinion that the four requested variances individually and cumulatively maintain the general intent and purpose of the Zoning By-law.

92The Subject Property is regulated by the former City of York Zoning By-law 1-83 (previously defined in the decision as the “Zoning By-law”), and is not included in the new City-wide Zoning By-law 569-2013. In addition, Zoning By-law 765-70 also applies, and this by-law permit an existing school on the Subject Property.

93The R2 zone that applies to the Subject Property permits a wide range of residential uses, and non-residential uses including a school (other than a commercial school), public services and utilities, a place of worship and a day nursery.

94The development standards applicable to the non-residential uses include:

a. minimum lot frontage of 12.0 metres;

b. maximum building height of 14.0 metres with not more than 3-storeys;

c. minimum side yard width of greater than 4.5 metres or one-half of the height of the building;

d. minimum rear yard depth of 9.0 metres; and

e. maximum density of 0.8 FSI.

95Exception 159 permits the development of the existing school on the Subject Property. The exception specifically permits the development of a public school and allows for the use of the parking area to the rear by the school. Exception 159 also applies the following development standards: a minimum set back of 50 feet (15.24 metres) from Durham Avenue; and a minimum setback of 10 feet (3.04 metres) from Arlington Avenue.

96Ms. Al-Sharari noted that the existing school building on the Subject Property is considered a “Non-conforming Property” given that the building predates City of York Zoning By-law 1-83. When erected, the building complied with the zoning provisions outlined in the site-specific By-law 765-70 that were applicable at the time of construction. The non-conformities are with respect to the maximum permitted density and minimum rear yard depth (i.e., rear yard setback). Therefore, no variances are required to permit the existing density or rear yard setback.

97Ms. Al-Sharari provided her opinion that the general intent and purpose of the site-specific by-law is to permit the development of a school on the Subject Property. Ms. Al-Sharari reviewed the February 1970 City staff report that accompanied the creation of the by-law.

98Ms. Al-Sharari’s opinion is that the minimum setback requirement from Durham Avenue on the north side of the Subject Property was not intended to create public open space, or to establish a connection to Cedarvale Park to the east, or to preserve views into Cedarvale Park from adjacent properties. Rather, the purpose is to provide landscaped area along the street frontage. There is also no easement in place on the Subject Property to permit public access to Cedarvale Park. I agree with Ms. Al-Sharari’s opinion regarding on this matter and find that the proposal maintains the general intent and purpose of the minimum setback requirements from Durham Avenue.

99In addition, Ms. Al-Sharari opined that the proposed north setback is generally consistent with the setbacks of the existing residential dwellings to the north and west of the Subject Property and opined that it would respect and reinforce the range of setbacks from Durham Avenue in the immediate context. The specific numbers of these setbacks have been outlined previously in this decision. I agree with Ms. Al-Sharari’s opinion on this matter.

100With respect to the proposed reduction in the minimum rear yard depth from 9.0 metres to 0.12 metres, the existing rear yard setback is 0.12 metres. The proposed variance would be consistent with the established setback of the existing building that has been on the Subject Property since 1971. Ms. Al-Sharari characterized this as a technical variance and noted that it is required to permit an accessible entrance from the parking area into the school. I agree with Ms. Al-Sharari and find that this is a technical variance and that it meets the general intent and purpose of the Zoning By-law.

101Ms. Al-Sharari also opined that the overall building massing and the proposed 2-storey (10.30 metres to the flat roof and 12.12 metres to the clerestory) addition respects and reinforces the heights of adjacent properties, and is generally compatible with the heights of the residential houses in the area which are 1 to 3 storeys in height. There is no minor variance required for the height of the proposal. Ms. Al-Sharari provided her opinion that the height and set back result in a massing that is appropriate and compatible with adjacent and surrounding properties in terms of built form. I accept Ms. Al-Sharari’s opinion on this matter.

102In terms of density, the existing school has a density of 1.5 FSI as permitted by By-law 765-70, which exceeds the maximum density of 0.8 FSI permitted by the City of York Zoning By-law 1-83. The school was constructed prior to By-law 1-83 coming into force and effect. The proposed variance is required to vary By-law 1-83 and not By-law 765-70. This means that proposal requires variance from 0.8 FSI to 1.716 FSI. The increase in density above what is existing on the Site is only 0.216 FSI, which is a result of the proposed GFA contained in the 2-storey addition.

103Ms. Al-Sharari stated that the requested increase in density is intended to accommodate new educational spaces and student-support facilities that align with contemporary learning requirements. New educational facilities include a resource center, art room, wellness center, reading nook, etc. Enhanced interior conditions include increased access to natural sunlight for students.

104While classrooms are proposed on Level 2 of the addition, Ms. Al-Sharari stated that these are being relocated from within the existing building to improve interior conditions, specifically, to enhance access to natural light for students. I accept Ms. Al-Sharari’s opinions regarding the FSI variance and find that the proposed FSI increase maintains the general intent and purpose of the Zoning By-law.

105By way of overall conclusion, I find that each proposed variance individually and cumulatively maintains the general intent and purpose of the Zoning By-law.

Are the Variances Desirable for the Appropriate Development of the Land

106Ms. Al-Sharari provided her opinion that the proposal is desirable for the appropriate development of the land. Ms. Al-Sharari provided her opinion that the additions and alterations are required to respond to the evolving educational needs of students. In addition, the proposal will improve the accessibility entrances into the school.

107Ms. Al-Sharari stated that the proposal and requested variances will result in the continued use of the Subject Property as a school that serves the immediate neighbourhood and the wider community.

108Ms. Al-Sharari’s opinion is that the proposed variances would support the continuation and enhancement of the operations and programming of the school while appropriately limiting the built form impacts on the surrounding neighbourhood.

109I agree with Ms. Al-Sharari’s opinions outlined above and find the proposal to be desirable for the appropriate development of the land. This phase of the minor variance test is met.

Are the Variances Minor

110Ms. Al-Sharari provided her opinion that the four requested variances individually and cumulatively are minor. Ms. Al-Sharari’s opinion is that the proposal is minor in nature both quantitatively and qualitatively. Ms. Al-Sharari’s opinion is that this is not simply a numerical test but based on an analysis of fit and impact on the immediate context and surrounding neighbourhood.

111Ms. Al-Sharari’s opinion is that the variances are keeping with the existing built form character of the building on the Subject Property as well as the surrounding area.

112In terms of density, Ms. Al-Sharari noted that the additional space is required to enhance the education of students as opposed to increasing the overall capacity of the school. Ms. Al-Sharari’s opinion is that the increased density will not have any undue adverse impacts on the adjacent properties or the wider neighbourhood.

113With respect to the variances related to minimum required setbacks from the north and east lot lines, Ms. Al-Sharari’s opinion is that the setbacks are consistent with those of the existing school building and the low-rise residential uses in the immediate neighbourhood context.

114Ms. Al-Sharari noted that a transportation study has been completed by BA Group and is being dealt with at the site plan application stage for the proposal.

115Ms. Al-Sharari also provided her opinion that there are no views identified as a protected view in the Official Plan that would be impacted. In terms of privacy, Ms. Al-Sharari noted that the new two-storey addition is separated from residential dwellings to the north on Durham Avenue by virtue of the 20 m right of way of the street, the proposed 3.45 m setback on the Subject Property, and the existing setback of the dwellings to the north.

116I note that the second storey is not a wall of windows. Rather, it contains four discrete windows and these are separated by more than the width of the Durham Avenue right-of-way. In addition, the proposed height of two-storeys is similar to that of the residential dwellings.

117The test for whether a variance is considered minor is whether there is an unacceptable adverse impact. I agree with Ms. Al-Sharari’s opinions outlined above and find that there are no built form impacts on properties within the immediate area which would arise to the level of being considered to be an unacceptable undue adverse impact. I find that the proposal is minor in nature.

CONCLUSION

118In conclusion, I find that the four requested variances meet the matters of provincial interest outlined in section 2 of the Planning Act, are consistent with the policies contained in the 2024 Provincial Planning Statement, and individually and cumulatively meet the four statutory tests outlined in section 45(1) of the Planning Act.

119In addition, no conditions of approval were recommended by City staff and I find that no conditions of approval are necessary in these circumstances.

DECISION AND ORDER

120The Appeal is allowed and the variances requested are approved without conditions.

T. Kezwer

Panel Member