Local Planning Appeal Tribunal Tribunal d’appel de l’aménagement local

ISSUE DATE: August 29, 2019 CASE NO(S).: PL170356

The Municipal Board (the “OMB”) is continued under the name Local Planning Appeal Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Evgeny Shenderey Subject: Minor Variance Variance from By-law No.: 438-86 Property Address/Description: 24 Oswald Crescent Municipality: City of Municipal File No.: A1143/16TEY OMB Case No.: PL170356 OMB File No.: PL170356 OMB Case Name: Shenderey v. Toronto (City)

Heard: August 25, 2017 in Toronto, Ontario

APPEARANCES:

Parties Counsel

Evgeny Shenderey J. Alati, M. Keating

Matthew Arnold and Andrea Shreeram Self-represented

DECISION DELIVERED BY STEFAN KRZECZUNOWICZ AND ORDER OF THE TRIBUNAL

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INTRODUCTION

[1] Evgeny Shenderey (the “Applicant”) has appealed a decision of the Committee of Adjustment of the City of Toronto (the “Committee”) to deny minor variances for a property at 24 Oswald Crescent (the “site”). The variances would allow a new three- storey detached dwelling with an integral garage to be built on the site.

[2] Oswald Crescent is a very short street between Manor Road and Wilfred Avenue, in a “midtown” location of Toronto between the major streets of , Davisville Avenue, , and West. The area is predominantly residential and was initially subdivided in the 1920s and 30s.

[3] The new dwelling requires variances under the City of Toronto Zoning By-law Nos. 438-86 (the “old by-law”) and 569-2013 (the “new by-law”) as the building height, front, rear, and side exterior main wall height, and floor space index exceed the permitted maximums under both by-laws. The by-laws also do not permit the proposed integral garage on what is a relatively narrow lot frontage (7.13 metres). Finally, the amount of first floor within the front main wall fails to meet the prescribed minimum standard under the new by-law.

Amended Application

[4] At the outset, the Tribunal was informed that four of the requested variances - the three for main wall height and the one for overall building height - were not considered by the Committee. According to Michael Goldberg, this was an oversight by the Applicant’s representatives, who failed to include the variances in the minor variance application. As well, the variances for floor space index and first floor area have been slightly amended to more accurately reflect the proposal.

[5] The Tribunal is mindful of the risk of introducing new variances to a minor 3 PL170356

variance application, particularly variances that relate to building height, without additional public notice. However, the mitigating factor in this case is that the design of the proposed dwelling has not changed since notice was originally served. The general public has therefore already had the chance to review and make submissions on the design that was before the Tribunal.

[6] Moreover, having read the material submitted to the Committee, the Tribunal is satisfied that the main opposition to the Applicant’s proposal has always been the integral garage. No amendment to the garage variance has been proposed.

[7] Given the relatively benign impact of introducing the new height variances and amending the existing variances, and pursuant to s. 45(18.1.1) of the Planning Act (the “Act”), the Tribunal finds the amendments to be minor and no further notice in respect of the amendments is required.

[8] The full amended list of variances is set out in Attachment 1.

Witnesses

[9] The Tribunal heard evidence from a professional planner, Mr. Goldberg, whom the Tribunal qualified to give expert opinion evidence in matters of land use planning, and Matthew Arnold, a resident of 22 Oswald Crescent and a Party to the appeal. It is noted that Mr. Goldberg has considerable experience with land use planning matters - including minor variance matters - in the area around the site.

[10] Al Kivi, representing the South Eglinton Ratepayers’ and Residents’ Association (“SERRA”), also testified as a Participant.

LEGISLATIVE TESTS

[11] The Tribunal’s authority to grant or deny variances is given under s. 45(1) of the 4 PL170356

Act. This section has given rise to what are commonly referred to as the “four tests” for variance approval. The tests must be applied by the Committee when considering a variance application and by the Tribunal when making its decision on a variance appeal. In order to meet the tests the variances must:

a. maintain the general intent and purpose of the official plan;

b. maintain the general intent and purpose of the zoning by-law;

c. be desirable for the appropriate development or use of the land, building or structure; and

d. be minor.

[12] In reaching its decision, the Tribunal must also consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, including whether they are consistent with the Provincial Policy Statement 2014 (“PPS”) and conform to the Provincial Growth Plan for the Greater Golden Horseshoe 2017 (the “Growth Plan”). In this respect, the Tribunal is satisfied that the variances cannot be denied on the grounds of disregard or inconsistency with the Provincial legislative framework. The Tribunal’s findings are therefore rooted in its assessment of the variances in light of the four tests.

DECISION AND ANALYSIS

[13] In reviewing the application against the four tests the Tribunal will allow the appeal for the reasons set out below.

[14] The variances maintain the general intent and purpose of the City of Toronto’s Official Plan (“OP”). The site is designated “Neighbourhoods” in the OP. The OP requires that new development in Neighbourhoods respect and reinforce the existing physical character of the neighbourhood in which the development is located. In this 5 PL170356

way the stability of the neighbourhood is preserved.

[15] For the purposes of analyzing the variances in their neighbourhood context, Mr. Goldberg delineated a “study area” around the site which he described as part of the neighbourhood and experientially characteristic of the neighbourhood (see Exhibit 2). The study area is predominantly made up of private residential lots on short, curvilinear streets. The prevailing built form is the single detached dwelling, though semi-detached, multi-unit, townhouse, and low rise apartment forms are in evidence. A key characteristic of the land use pattern in the study area is the density of development, with houses closely packed together on narrow lots.

[16] Mr. Goldberg’s use of the study area to reflect the neighbourhood did not go unchallenged. Mr. Arnold was of the view that the physical character of nearby homes on Oswald Crescent was distinct enough make the street a neighbourhood unto itself. Mr. Kivi was of the view that the neighbourhood context is better reflected by the block of homes immediately surrounding the site; he drew upon the provisions of Official Plan Amendment 320 (“OPA 320”) to support his position in this respect.

[17] The Tribunal is not persuaded by Messrs. Arnold and Kivi on this matter. Although the OP does not define what constitutes a “neighbourhood”, the Tribunal shares Mr. Goldberg’s view that key characteristics of a neighbourhood is that is experienced as such by its residents and includes more than just nearby homes. With this in mind, the Tribunal finds Mr. Goldberg’s study area to be a better reflection of what residents of the site would conceive of as their neighbourhood. His area is easily walkable and is relatively self-contained, being bounded by major changes in land use and major streets to the east and west, and by arterial-like streets - Manor Road East and Belsize Drive - to the north and south. It includes streetscapes and open space as well as private homes. The neighbourhoods advocated by Mr. Arnold and Mr. Kivi would not easily be distinguished “on the ground” and are simply too small to properly assess the variances within the surrounding built environment. Moreover, the visual evidence does not support Mr. Arnold’s contention that Oswald Crescent has special built form 6 PL170356

characteristics that distinguish it from the broader neighbourhood. As a final point, the Tribunal is of the firm view that little weight should be placed on provisions of OPA 320 that are not in full force and effect.

[18] The tightly knit character of the study area means that parking is a challenge and the parking arrangements vary from lot to lot. Rear detached garages are in use where setbacks allow modern cars to access rear yards. Homes that have been renovated or replaced often contain front yard parking pads (such as Mr. Arnold’s home at 22 Oswald), front yard garages (such as 21 Oswald and 25 Oswald), or integral garages (see the many examples in photos in Exhibit 4). The current house on the subject site is setback 2.04 metres from its southerly neighbour - too narrow a width, according to Mr. Goldberg, for most cars.

[19] Statistical evidence provided by Mr. Goldberg shows that reinvestment in the study area along the lines of what is being proposed by the Applicant is a common feature of the neighbourhood (see Exhibit 5). Several of the more recently developed homes have been granted variances for floor space index, building height, first floor area, and exterior main wall height similar to those that are being requested. This is, in the Tribunal’s view, evidence that the proposal is in keeping with the OP imperative that Neighbourhoods remain stable but not static.

[20] The visual evidence shows that the variances would also meet OP Built Form and Land Use policies requiring that new development in Neighbourhoods respect and reinforce the existing physical character of neighbourhoods. What is being proposed is a new single detached dwelling with a front-facing integral garage in a neighbourhood where such homes are common. Setback requirements under the zoning by-laws are being met and, but for the height of the building and its main walls, the exterior dimensions of the dwelling also conform to the applicable zoning. From the street, the house would present a three storey façade with an integral garage in a conventional design that can be seen in many other homes within the study area. Overall, the result will be a relatively small home on a relatively small lot that fits the compact character of 7 PL170356

the neighbourhood.

[21] The Tribunal finds that granting the variances would also maintain the general purpose and intent of the zoning by-laws. Moreover, at least two of the variances arise from a desire to provide an on-site parking solution on a relatively narrow lot. To that extent, the Tribunal finds them to be desirable for the appropriate use of the land at the site. All told, the Tribunal finds that the variances, both individually and collectively, are minor in nature.

Height

[22] The by-laws limit building height on the site to 9.0 metres. This has the general effect of limiting houses to three storeys. The Applicants are proposing to build a three storey house. The excess height requested - 0.30 metres - is slight and arises in part from the uneven roofline rather than an overly tall building. Of more importance is that there is no material difference in height between the proposed house and the newer houses in the study area that are of similar height and design.

[23] Three other height variances are requested; all are inter-related. The new by-law limits the height of front, rear, and side exterior main walls to 7.0 metres. These standards are generally used to limit building mass, particularly on upper floors of homes. The Applicant is requesting permission for a front main wall that is 8.75 metres high, a rear main wall that is 8.25 metres high, and side main walls that are 7.47 metres high. In reviewing the drawings in Exhibit 6, it is clear that these variances are not required along the entire roof line but rather to peaks, gables, and other articulations that break up the roof. Moreover, at least in respect of the side wall height, Mr. Kivi’s statistical evidence shows that 7.47 metre side walls are lower than what is routinely approved in the neighbourhood (see Exhibit 11). As such, the Tribunal’s view is that granting the variances would not result in an unusually massive dwelling.

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Integral Garage

[24] With respect to the integral garage, the City has an interest in ensuring that parking on residential lots in this neighbourhood is provided on-site. It also has an interest in ensuring that the façades of buildings are not dominated by garages. Both zoning by-laws therefore prohibit internal garages on lots with frontages less than 7.62 metres (frontage in this case being measured along the line of the front wall). By this measure, the site has a 7.3 metre frontage at the front wall of the house, slightly narrower than the minimum required frontage but, according to Mr. Goldberg, too narrow to accommodate most cars with existing side yard setbacks. In order to provide parking on site and maintain existing setbacks, the Applicant must therefore secure a variance to allow an integral garage or permission to park in the front yard. Mr. Goldberg’s view was that, given the constraints of the site, the most appropriate solution would be an integral garage.

[25] The Tribunal agrees. Integral garages of a similar size and form are common in the neighbourhood and have been approved in recent years. The Applicant’s building design allows the garage to be well set back from the street while maintaining sufficient areas for soft landscaping in the front yard (for which no variance is required). Moreover, the variance requested - 0.32 metres - represents a very minor deviation from the minimum lot frontage standard.

[26] The Tribunal has carefully considered Mr. Kivi’s presentation of the findings of the Davisville Village Planning Study of 2017. This study, undertaken by City planning staff, recommends increasing the minimum required frontage for having an integral garage in the Davisville Village area from 7.62 metres to 12 metres. Mr. Kivi noted that the study was initiated in part to address a growing concern that new infill homes with integral garages were disrupting the traditional character of the Davisville Village area, in which the study area is located.

[27] However, the Tribunal’s view is that the Davisville Village study has little 9 PL170356

relevance to this appeal. While it no doubt reflects the opinions of City staff and SERRA, the study appears to have no formal endorsement by Council and no legal force. It certainly does not form part of the OP or zoning by-laws on which the Tribunal is required to adjudicate the merits of the variances.

Floor Space Index

[28] Floor space index is the ratio of floor space to lot area. The Applicant is seeking variances that would permit a floor space index of 0.712, whereas the permitted maximum is 0.6. The zoning standard has the general effect of limiting the mass of a building so that it does not dominate its lot.

[29] An analysis of the floor space index within the study area by Mr. Goldberg shows that the zoning standard is unrepresentative of recently constructed homes; in fact, as one might expect in an area of tightly packed lots, most new homes exceed the standard. The relationship of building to lot proposed by the Applicant is therefore, in the Tribunal’s view, reflective of the neighbourhood norm.

First Floor Area

[30] The Tribunal accepts Mr. Goldberg’s evidence, uncontroverted by the other parties, that what is effectively a minor rearrangement of the first floor vestibule is a desirable improvement to the design of the proposed dwelling that will facilitate an integral garage in what will be a relatively small house.

Conditions

[31] The Tribunal’s authority to impose conditions of approval for variances is granted by s. 45(9) of the Act. Mr. Goldberg’s proposed two conditions of approval seek to protect existing trees. In his view, the conditions represent good planning. The Tribunal agrees. 10 PL170356

ORDER

[32] Based on the above reasons the Tribunal is satisfied that the variances meet the four tests under the Act. As such, the Tribunal orders that the appeal is allowed and the variances set out in Attachment 1 are authorized subject to the following conditions:

a. Submission of complete application for permit to injure or remove privately owned trees under Municipal Chapter 813 Article III, private trees.

b. Submission of complete application for permit to injure or remove City owned trees under Municipal Chapter 813 Article II, Street trees.

[33] The new by-law (Zoning By-law No. 569-2013) is not in force or effect as of this date. Pursuant to s. 87(1) of the Ontario Municipal Board Act, the Tribunal has the power to issue contingent orders. Based on this authority, the Tribunal will authorize the variances to Zoning By-law No. 569-2013 contingent on the by-law coming into force and effect.

“Stefan Krzeczunowicz”

STEFAN KRZECZUNOWICZ MEMBER

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

Local Planning Appeal Tribunal A constituent tribunal of Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248 11 PL170356

ATTACHMENT 1 OMB Case No. PL170356

LIST OF VARIANCES 24 OSWALD CRESCENT

Variances Under By-law 569-2013

1. The new dwelling will have a floor space index equal to 0.712 times the area of the lot (209.2m2}, WHEREAS the maximum permitted floor space index is 0.6 times the area of the 2 lot (176.3m ) [ch. 10.10.40.40.(l)(A)].

2. The new dwelling will have a height of 9.3m, WHEREAS the maximum permitted building height is 9.0m [ch. 10.10.40.10.(l)(A)].

3. The new dwelling will have an integral garage facing the east front lot line, WHEREAS an integral garage is not permitted in a building on a lot with a frontage of less than 7.62m if the vehicle access to the garage is located in a wall facing the front lot line [ch. 10.10.80.40.(1)].

2 4. In this case, l.6m of the first floor will be within 4.0m of the front main wall, WHEREAS a minimum of 10.0m2 of the first floor must be within 4.0m of the front main wall [ch. 10.5.40.10.(5) & By-law 1676-2013].

5. The proposed height of the front exterior main wall is 8.75m, WHEREAS the maximum permitted height of all front exterior main walls is 7.0m [ch. 10.10.40.10.(2)].

6. The proposed height of the rear exterior main walls is 8.25m, WHEREAS the maximum permitted height of all rear exterior main walls is 7.0m [ch. 10.20.40.10.(2)].

7. The proposed height of the side exterior main walls facing a side lot line is 7.47m, WHEREAS the maximum permitted height of all side exterior main walls facing a side lot line is 7.0m [ch. 10.20.40.10.(2)].

Variances Under Bv-law 438-86

8. The new dwelling will have a floor space index equal to 0.712 times the area of the lot 2 {209.2m ), WHEREAS the maximum permitted floor space index is 0.6 times the area of the lot {176.3m2) [s. 6(3) Part I].

9. The new dwelling will have a height of 9.28m from the average ground on the lowest side, WHEREAS the maximum permitted building height is 9.0m [s. 4(2)(a)].

10. The new dwelling will have an integral garage facing the front lot line, WHEREAS an integral garage is not permitted in a building on a lot having a frontage of less than 7.62m where access to the garage is located in a wall facing the front lot line [s. 6(3) Part IV 3(1)].