Municipal Board Commission des affaires municipales de l’Ontario

ISSUE DATE: September 11, 2017 CASE NO(S).: PL170247

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Property Owner’s Association Applicant: Ali Safaviamineh Subject: Minor Variance Variance from By-law No.: 438-86 Property Address/Description: 30 Parkhurst Blvd. Municipality: City of Municipal File No.: A0988/16NY OMB Case No.: PL170247 OMB File No.: PL170247 OMB Case Name: Leaside Property Owner’s Association v. Toronto (City)

Heard: August 23, 2017 in Toronto, Ontario

APPEARANCES:

Parties Counsel

Ali Safaviamineh John Alati and Kate Fairbrother

Leaside Property Owners Association Robert Holland

DECISION DELIVERED BY J. de P. SEABORN AND ORDER OF THE BOARD

[1] The matter before the Board is an appeal by the Leaside Property Owners Association (“Appellant”) from a decision made by the Committee of Adjustment (“Committee”) for the City of Toronto (“City”). In that decision the Committee authorized certain variances requested by Ali Safaviamineh (“Applicant”). Other variances sought 2 PL170247

by the Applicant were refused by the Committee. The Applicant was content to proceed in accordance with the disposition of the Committee and revised his building plans consistent with that decision. Nevertheless, the Appellant takes the position that none of the variances should have been authorized by the Committee.

[2] In support of the variances the Applicant called Michael Goldberg, qualified to provide opinion evidence in the discipline of land use planning. Mr. Holland explained that the Appellant had intended to call a witness to provide a land use planning opinion. However, the proposed witness is employed with the Ministry of Municipal Affairs and required authorization to testify. Mr. Holland indicated he would proceed with his case without the planner if the requisite consent for his witness to appear did not materialize before the conclusion of the hearing (the proceeding lasted a full day and the proposed planning witness was not called). Geoff Kettel testified on behalf of the Appellant. Mr. Kettel was originally intending to provide evidence as a participant in his capacity as Chair of the Community Preservation Panel. However, as Co-President of the Appellant and the individual who filed the appeal on its behalf, Mr. Kettel was well positioned to speak to the variances and the policy context for the appeal. While not qualified to provide opinion evidence (nor was a qualification sought), Mr. Kettel has a planning background and was permitted to provide detailed evidence with respect to the variances. Linda McCarthy, who grew up in Leaside and currently lives in Lytton Park, testified as a participant and explained that her grandfather (A.W. Brockington) was a prominent builder in Leaside during the 1930s and 1940s. Ms. McCarthy expressed regret that the City’s planning policies allow these homes, which in her view have considerable historic value, to be demolished and replaced with new dwellings that fail to reflect the Tudor Revival style that is found in much of Leaside and certainly on Parkhurst Boulevard (“Parkhurst”), where the Applicant’s property is situated.

[3] The Applicant’s property is situated on the north side of Parkhurst in the block between Donegall Drive (“Donegall”) and Fleming Crescent (“Fleming”). Parkhurst is a significant east/west street that traverses much of Leaside, south and largely parallel to Eglinton Avenue East. The photographs depict a lovely streetscape with residential 3 PL170247

homes (mainly two-storey), private driveways and garages at the rear and in some cases integral garages, both newly built or existing as part of the original home. The housing types in Leaside are varied including single and semi-detached houses of one and two storeys, some multi-family homes of two and three storeys and three prominent low-rise garden apartment complexes, two on Bayview and a third on Leacrest Road. Leaside is a coveted City neighbourhood, popular for families with excellent schools, parks, recreation facilities, transit, shopping and access to the Don Valley Parkway. Both Mr. Kettel and Ms. McCarthy explained the history behind the original development in Leaside, which occurred largely between 1928 and 1953. Since the original built-out of the “Town of Leaside”, there has been considerable change in the neighbourhood as the existing housing stock is replaced and/or renovated and former industrial areas replaced with shopping malls and new homes. Upper floor additions began appearing on bungalows in the 1970s and more recently owners have demolished dwellings and replaced them with more modern looking houses. Mr. Kettel and Ms. McCarthy each believe Leaside should have a heritage designation.

[4] A significant rationale for the Appellant opposing the variances is the prospect of change on this particular block of Parkhurst. Simply put, Mr. Kettel testified that regardless of re-development in Leaside generally (or even re-development in the study area relied upon by Mr. Goldberg), houses such as the Applicant’s should be maintained and protected from demolition, especially on this stretch of Parkhurst. Mr. Kettel referred to the Residential Character Preservation Guidelines (2003) applicable to the Leaside Community and lamented that they are merely guidelines as opposed to Official Plan (“OP”) policy. There was no evidence confirming that the guidelines have been adopted by City Council. It was Mr. Kettel’s view that any re-development in Leaside must reflect the historic character of the area. In this regard local residents have been pursuing a heritage designation for Leaside to better control new development. However, Leaside has not been designated as such and is not on the City’s priority list in this regard. Mr. Kettel was fair in acknowledging that but for the variances, the Applicant could demolish his home and replace it with a new dwelling 4 PL170247

with no input from neighbours or any review by the Committee (or the Board, on appeal).

[5] The Applicant’s proposal is to demolish the existing two-storey dwelling and replace it with a new two-storey dwelling with an integral garage. In almost all respects the plans (revised after the decision of the Committee was rendered) reflect the by-law standards applicable to the property. However, some deviation from the applicable zoning is required and the Applicant seeks authorization for variances from the standards set out in By-law No. 1916 (“in-force By-law”) and By-law No. 569-2013 (“new By-law”). Authorization for six variances is required to implement the plans (Exhibit 8), with two variances required under the in-force By-law and an additional four variances sought under the new By-law.

[6] Variances are requested from both By-laws for: lot coverage (36.10% of the lot area vs. a maximum of 35 % of the lot area); and floor space index (0.67 times the lot area vs. 0.60 times the lot area). Variances are requested from the new By-law in respect of the east and west side yard set-backs (0.90 m side yard set-back vs. 1.20 metre (“m”) minimum side yard set-back requirement). The standard for side yard set- backs under the in-force By-law is 0.90 m therefore no relief is required under that By- law. No other variances are necessary to implement the revised plans. As indicated at the outset, the Committee did not authorize all of the variances originally requested and the Applicant has amended his plans to reflect only the variances authorized by the Committee. The variances rejected by the Committee (and now abandoned by the Applicant) were those seeking an increase in the maximum height and increases in the heights of the front, side and rear exterior main walls. The issue of height had been raised by local residents and in its decision the Committee denied all of variances associated with increased height.

[7] Any application seeking minor variances from by-law standards must be evaluated pursuant to the provisions of s. 45(1) of the Planning Act (“Act”), which requires consideration of the City’s OP policies, the applicable zoning, the desirability of 5 PL170247

the authorizing the variances and whether they are minor in nature. The Applicant’s property is designated Neighbourhoods in the OP and as such considered to be in a physically stable area. The OP provides that development in established Neighbourhoods will respect and reinforce the existing physical character of the neighbourhood. The policies indicate that no change should be made through minor variances that are out of keeping with the physical character of the neighbourhood. In this instance the proposed change is minimal. The Board relies on the opinion of Mr. Goldberg who addressed the OP policies and finds that the type of change planned for the Applicant’s property is first, consistent with and conforms to what is envisioned in the OP and second is not unlike other approvals within the study area and the broader Leaside neighbourhood.

[8] In examining the variances as compared to both the “as-of-right” permissions and similar re-development in Mr. Goldberg’s study area, the Board concludes that individually and collectively they are minor in nature. This was the same conclusion reached by the Committee. Dealing first with the side-yard set-back requirement, but for the new By-law no relief would be necessary. The small reduction in set-back from the standard set out in the new By-law is to accommodate the driveway width. The Applicant’s existing side-yard set-back is 0.51 m (east) and a west side yard of 2.51 m. The drive way will be situated in almost exactly the same location as the existing driveway, just moved a bit easterly into the lot. There will be no discernable impact when comparing the 1.20 m standard (only under the new By-law) vs. the 0.90 m variance that is requested. Mr. Goldberg testified that side yard patterns on lots with front facing integral garages commonly have small side yards on each side of the dwelling and photographs of houses on Parkhurst with this condition were provided. Similarly, the increase that is sought in respect of both floor space index and lot coverage is numerically very small, without impact, and similar to other approvals given for re-builds in the area generally and on Parkhurst specifically. In this regard, Mr. Goldberg prepared a detailed inventory (Exhibit 6) of variance approvals. The revised plans reflect the zoning requirement for height and the landscaped area will be greater than the required standard. Mr. Goldberg indicated that the three-dimensional building 6 PL170247

envelope created by length, height and position on the site are all compliant with the zoning except for the additional 0.30 m on each side. There is no incremental impact for shadow impact versus the as-of-right condition.

[9] Mr. Kettel and Ms. McCarthy expressed regret that Leaside is not designed as a heritage area and that demolition is permitted. In this regard, it was clear from their testimony that the variances, per se, were not the overriding issue. The issue for local residents is the on-going in-fill, re-development and replacement of the housing stock. In this regard, the Board has sympathy for their concerns. However, the City’s by-laws permit property owners to demolish existing dwellings and re build on the same property. There are no discernable impacts associated with the Applicant’s plans to build a new two-storey home with variances for set-back and a minimal increase in permitted coverage. The plans filed by the Applicant depict a well thought out design that respects the height standard for the area. The variances are clearly minor in impact and desirable.

[10] Based on all of the evidence adduced at the hearing, the variances are authorized. In arriving at this conclusion, there has been regard to the decision of the Committee and all applicable provincial polices. A decision authorizing the variances is also consistent with the Provincial Policy Statement, 2014 and the opinion of Mr. Goldberg is relied upon in this regard.

[11] The decision and order of the Board is to dismiss the appeal. The decision of the Committee is confirmed and the variances set out in Attachment 1 (Exhibit 1) are authorized, subject to the condition imposed by the Committee with respect to payment in lieu of tree planting.

“J. de P. Seaborn”

J. de P. SEABORN VICE-CHAIR 7 PL170247

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