Ontario Municipal Board Commission des affaires municipales de l Ontario

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1 ISSUE DATE: April 24, 2009 PL Ontario Municipal Board Commission des affaires municipales de l Ontario IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant: Appellant: Phyllis & Ben Friedman Emilia & Rick Celenza Subject: Minor Variance Variance from By-law No.: 7625 Property Address/Description: Brooke Avenue Municipality: City of Toronto OMB Case No.: PL OMB File No.: PL Municipal No. 0625/08NY A P P E A R A N C E S : Parties Phyllis and Ben Friedman Emilia and Rick Celenza Counsel A. Brown P.P. DuVernet DECISION DELIVERED BY S. B. CAMPBELL AND ORDER OF THE BOARD Phyllis and Ben Friedman (the Applicants ) applied to the Committee of Adjustment (the COA ) of the City of Toronto (the City ) for 9 variances in respect of a residential dwelling proposed for a property at Brooke Ave. There are currently houses on each of what were two lots, and the Applicants propose to demolish the house at 340 Brooke and expand the house at 342 Brooke. There was no dispute in this hearing that 340 and 342 Brooke Ave. will comprise one legal lot. The requested variances are as follows: 1. lot coverage permitted 30%, requested 36.87%; 2. side yard setback required 1.8m, requested 1.19m;

2 - 2 - PL height permitted 8.0m, requested 9.3m; 4. length (dwelling) permitted 15.3m, requested 19.36m; 5. length (dwelling including one storey rear extension) permitted 17.4m, requested 22.83m; 6. finished first floor height permitted 1.5m, requested 2.41m; 7. front yard landscaping required 60%, requested 57.07%; 8. below grade garage not permitted but requested; and 9. skylight permitted.5m, requested.9m. The Board accepts the evidence of Michael Goldberg, the Applicants land use planner, that variance 2, 3 and 6 reflect the existing conditions of the house currently at 342 Brooke Ave. The COA approved the variances with the exception of the lot coverage variance. The City did not appear in opposition to the Application at the COA or before this Board. Mr. Goldberg undertook a review of what the Board finds on the evidence to be an appropriate study area, as set out in Exhibits #2 and #3. His photoboards, Exhibits #7(a) 7(f) do a good job of showing the Board the existing character of the neighbourhood of the subject property. The Board accepts Mr. Goldberg s evidence that over the last 25 years most of the original post-war bungalows in the neighbourhood have been replaced by new detached two-storey houses of between 3500 and 5500 square feet. The Board also accepts Mr. Goldberg s evidence that there has been much COA and OMB activity in the area that has resulted in the construction of houses subject to a variety of variances. While below grade garages are prohibited by the zoning by-law, the Board, after reviewing the photoboards, accepts Mr. Goldberg s evidence that such garages are characteristic of this neighbourhood.

3 - 3 - PL Having reviewed Exhibit #2, the Context Plan and Exhibit #3, the Air Photo, the Board accepts Mr. Goldberg s evidence that there is an inconsistent, undulating house wall line in the rear yards, with houses extending to a variety of depths. It was Mr. Goldberg s opinion, which the Board accepts on the evidence, that this neighbourhood has taken on the character of the replacement houses which are larger, longer and taller than the original houses, with below grade garages and wide driveways, with front yards occupied by considerable hard surface. It is clear from the evidence of Mr. Goldberg, Peter Cheatley, the Appellants land use planner, and the neighbours who testified in opposition to the Application, that the double lot owned by the Applicants is unique in the neighbourhood. However, there was no dispute in the hearing; the lot is legal and the zoning by-law does not set a maximum lot size, lot frontage, or house size. In fact, it was Mr. Cheatley s evidence that as the zoning by-law permitted 30% lot coverage, the Applicants could build an asof-right house of some 7100 square feet, far larger than any other house in the neighbourhood. If the existing side yard setback between 342 Brooke Ave. and the neighbouring property were retained, the house could be constructed with no further variances which would be as wide, facing the street, as the proposed house. It was the evidence of the neighbours as set out in Exhibit #12, in their letter to the Board, that they believe the proposed house will not only be grossly disproportionate in size to the rest of the homes on the street, but will also have a negative impact on the aesthetic of the street as a whole. The Board must observe that the as-of-right house on the large double lot would also be disproportionate in size, much wider that any other house on the street, and would be entirely legal. Variances may be authorized by the COA and this Board only if they meet the four tests set out in section 45(1) of the Planning Act (the Act ). They must be minor; they must be desirable for the appropriate development or use of the land; and they must maintain the purpose and intent of the official plan and the zoning by-law. In making a determination of whether the four tests have been met the Board had repeatedly said that it is not just a numerical test. That is, the number of variances requested or the size of the variance is not determinative. The Board must consider the facts of each case and make a qualitative judgement.

4 - 4 - PL Messrs. Goldberg and Cheatley reviewed the relevant provisions of the City s Official Plan (the OP ). The subject property is in a Neighbourhood and section 2.3.1, Healthy Neighbourhoods, provides: some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites. 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. Development criteria, contributing to the stability of the physical character of Neighbourhoods are set out in section 4.1, policy 5: Development in established Neighbourhoods will respect and reinforce the existing physical character of the neighbourhood, including in particular: patterns of streets, blocks and lanes ; size and configuration of lots; heights, massing, scale and dwelling type of nearby residential properties; prevailing building type(s); setbacks of buildings from the street or streets; prevailing patterns of rear and side yard setbacks and landscaped open space; No changes will be made through zoning, minor variance, consent or other public action that are out of keeping with the physical character of the neighbourhood. As noted above, it was the opinion of Mr. Goldberg that this neighbourhood has evolved, taking on the character of the replacement houses. Such houses are larger and taller than the original houses and are characterized by below grade garages. In Mr. Goldberg s opinion the houses in the neighbourhood are all individual expressions and there is an eclectic mix in the area. For example, rear building lines are not uniform. Mr. Goldberg acknowledged that the proposed house would be the largest in the neighbourhood but in his opinion it is not about the number, but how the house is deployed on the lot in relationship to other houses. The double lot is legal; there is no variance required to allow for the size of the lot. The property will be maintained as a single detached residential property, which, in Mr. Goldberg s opinion does nothing to

5 - 5 - PL stabilize the neighbourhood. In his view the property to property relationship will remain quite conventional. Mr. Goldberg reviewed the OP development criteria set out above. The lot is larger than any other lot in the neighbourhood, but nothing in the OP or the zoning bylaw prohibits such a lot. In his opinion the height, massing, and patterns of side and rear yard setbacks are maintained. The proposed house would not be the tallest in the neighbourhood although it would be the largest. The existing setback on one side of the property is maintained, and on the other side, adjacent to the Appellants, the side yard setback is well in excess of what is required. In Mr. Goldberg s opinion, the OP policies speak to the compatibility or fit of new development in a neighbourhood. Having reviewed the evolving nature of the neighbourhood, Mr. Goldberg is of the opinion that the proposed house, although considerably larger than others in the neighbourhood, is compatible. The height fits the street; the single-storey breakfast nook extension is well set back from all lot lines; and the depth of the house reflects the existing condition on the western side of the lot. Therefore, in his opinion, the variances, individually and collectively, maintain the purpose and intent of the OP. With respect to the zoning by-law, it is Mr. Goldberg s opinion that the numerical standards exist to allow for new buildings, which are compatible with the existing neighbourhood. It is not about numbers. Rather, in his opinion it is about how the proposed house would be deployed on the lot. In his opinion it would be deployed in an acceptable and compatible manner. Therefore, in his opinion the variances maintain the intent and purpose of the zoning by-law. In his opinion the proposed house is desirable for the appropriate development of the property as it is a single-family residential structure, incorporating an existing house. It represents the continuation of the existing use of the property. Finally, Mr. Goldberg reviewed the potential impact of the proposed house on the neighbours to determine if the variances are minor. Exhibit #8 is a shadow study, which in Mr. Goldberg s opinion demonstrates that in terms of sunlight and shadow, the proposed house will have little, if any impact on the neighbours. The height, below grade garage, setbacks and front yard landscaping are all conventional for the street,

6 - 6 - PL and result in no adverse impact. The house is admittedly large, but its relationship to the street and the neighbours is the same as that of an as-of-right house on this uniquely large lot would be. In Mr. Goldberg s opinion the variances, individually and collectively, meet the four tests set out in section 45(1) of the Act. Mr. Cheatley, testifying on behalf of the Appellants is of the opinion that the variances fail all four tests. He reviewed the Neighbourhood policies of the OP, which mandate that new development will respect and reinforce the existing physical character of the neighbourhood. Mr. Cheatley reviewed the photographs of houses in the neighbourhood found in the Appellants Document Book. There is no house in the neighbourhood of the size of the proposed house. No other house presents such a wide face to the street. At the proposed lot coverage, the house would be so large as to be incompatible with the neighbourhood. Mr. Cheatley noted the development criteria in section 4.1, policy 5 of the OP. He pointed to subsection 5(b), which speaks to the size and configuration of lots. He noted that the Applicants lot is double the width of a typical lot in the neighbourhood and triple the minimum size of lots. In his opinion the size of the lot is not in conformity with the intent of the OP policy. On this point the Board must again note that there was no dispute in this hearing about the legality of the size of the lot. There is no zoning by-law provision that sets maximum lot size; no variance is required to allow for this lot. The Board finds that this fact is germane to the decision, which it must make on these variances. There is no doubt that the evidence of Mr. Cheatley and the neighbours is correct; the subject lot is large and in fact anomalous in the neighbourhood. The Board finds that it is the size of this legal lot which is at the heart of the Appellants and neighbours concerns, and Mr. Cheatley s evidence that the proposal does not meet the intent and purpose of the OP and zoning by-law. This is amply demonstrated by Mr. Cheatley s opinion that the size of the lot is not in conformity with the OP and that this in some way means that the variances should not be authorized. The Board cannot find that a legal lot, however large, inevitably results in a failure of a proposed new development to respect and reinforce the character of a neighbourhood.

7 - 7 - PL Mr. Cheatley testified that the massing and scale of the proposed house also fail to meet the requirements of Policy No. 5. Under cross-examination, Mr. Cheatley acknowledged that a house could be built on this large lot with a rear indentation, reducing the lot coverage to the permitted 30%, which would look almost the same as the proposed house, from the street. The western side yard setback and the building height reflect the existing situation, and below grade garages are common in the area. Mr. Cheatley and the neighbours testified that the garage and the driveway set on the side of the proposed house are out of keeping with the neighbourhood. The Board must note that no variance is required or requested to allow for a side garage. It is the below grade nature of the garage which requires the variance, and there is no question that below grade garages characterize this neighbourhood. The Appellants, the neighbours to the immediate east of the subject property, expressed concerns about overlook and lack of privacy from a house extending so far into the rear yard. Having reviewed the exhibits, the evidence of Mr. Goldberg and the fact that there is a particularly generous side yard setback on the eastern side of the property, which includes screening, the Board cannot find that any of the variances requested would result in overlook or loss of privacy for the Appellants. The windows about which the Appellants and Mr. Cheatley expressed concern appear to be in the part of the proposed house, which is at the as-of-right depth. The proposed one storey rear breakfast nook would be well set back from the eastern lot line and would not result in any loss of privacy or overlook. Having reviewed the evidence of Mr. Cheatley and the neighbours, the Board finds that the anomalous large legal lot is what is giving rise to the objections to the proposed house. In his evidence on the desirability of the variances for the appropriate development of the land, Mr. Cheatley opined that the double lot and the as-of-right house don t even meet the intent of the OP and the zoning by-law. They do not reinforce the character of the neighbourhood. He testified that even with no variances what would be permitted is not appropriate development of the lot. This is not an opinion upon which the Board can refuse to authorize variances. The lot is legal and it can accommodate an as-of-right house, which would evidently be as offensive to Mr. Cheatley and the neighbours as the house proposed. Furthermore,

8 - 8 - PL the Board is not prepared to refuse to authorize variances because some neighbours fear that if the Applicants have a large house their charitable work will attract too many people to the neighbourhood. More than one neighbour made reference to the fact that the Applicants have too many visitors to their house. In fact one of the neighbours produced Exhibit #13, a photograph showing a number of individuals visiting the house. The fear that gentlemen in long black coats who don t know how to drive will come to the house does not constitute relevant evidence of negative impact. Such evidence is offensive and not what the Board expects to hear. The Board can only conclude from the evidence of the Appellants witnesses that even an as-of-right house on the large subject lot would, in their minds, offend the provisions of the OP and the zoning by-law, and would not be in keeping with the character of the neighbourhood. It is not the requested variances that would give rise to an incompatible house; it is the size of the legal lot. On the evidence, the Board finds that the variances, individually and collectively, maintain the purpose and intent of the OP and zoning by-law; they are desirable for the appropriate development of the land; and they are minor. In this evolving neighbourhood that is now characterized by large replacement houses with below grade garages, the proposed house, while larger is not incompatible. The requested variances do not allow for a structure that would have any different impact on the neighbourhood than that of an as-of-right structure. The appeal is denied. The variances are authorized subject to the following conditions: 1. The Applicants shall satisfy the City of Toronto Municipal Code Chapter 813, Article II, with respect to City owned trees, to the satisfaction of the Urban Forestry Division; 2. The Applicants shall satisfy the City of Toronto Municipal Code Chapter 813, Article III, with respect to privately owned trees, to the satisfaction of the Urban Forestry Division:

9 - 9 - PL The Applicants shall submit a Tree Security Deposit (in the form of a certified cheque or letter of credit only) and sign a Tree Preservation Agreement to the satisfaction of the Urban Forestry Division; and 4. The Applicants shall satisfy the requirements of the City s Transportation Services Division. This is the Order of the Board. S. B. Campbell S. B. CAMPBELL VICE-CHAIR