11 PL130948 ONTARIO MUNICIPAL BOARD COMMISSION DES

- 11 - PL130948

Ontario Municipal Board

Commission des affaires municipales de l’Ontario

ISSUE DATE:

February 10, 2014

PL130948

IN THE MATTER OF subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:		Khurram Butt
Subject:		Consent
Property Address/Description:		106 Newlands Ave
Municipality:		City of Toronto
Municipal File No.:		B031/13SC
OMB Case No.:		PL130948
OMB File No.:		PL130948
IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:		Khurram Butt
Subject:		Minor Variance
Variance from By-law No.:		9174
Property Address/Description:		106 Newlands Ave
Municipality:		City of Toronto
Municipal File No.:		A127/12SC
OMB Case No.:		PL130948
OMB File No.:		PL130950


IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:		Khurram Butt
Subject:		Minor Variance
Variance from By-law No.:		9174
Property Address/Description:		106 Newlands Ave
Municipality:		City of Toronto
Municipal File No.:		A126/13SC
OMB Case No.:		PL130948
OMB File No.:		PL130949

APPEARANCES:

Parties	Counsel

City of Toronto	Thomas J. Wall Charlotte Harbell (student-at-law)

Khurram Butt	Bruce Ketcheson

MEMORANDUM OF ORAL DECISION DELIVERED BY C. HEFFERON AND ORDER OF THE BOARD

Khurram Butt (“appellant”) appealed the March 22, 2013 decision of the Committee of Adjustment (“Committee”) of the City of Toronto (“City”) refusing his application for a consent and two minor variances from the provisions of Zoning By-law 438-86 (“By-law”) to permit construction of two single family detached homes on lands municipally known as 106 Newlands Avenue (“subject lands”). The single detached bungalow-style home that currently occupies the subject lands would be demolished.

AMENDMENT TO MINOR VARIANCE

At the commencement of the hearing, the Ontario Municipal Board (“Board”) considered an amendment to the application under the provisions of s. 45 (18.1) and s. 45 (18.1.1) of the Planning Act and found that the amendment is minor and that notice under s. 45 (18.1) is not required.

MATTERS BEFORE THE BOARD

The appellant has applied for consent to sever the subject lands into two equal sized lots, each having frontage of 10.365 metres (“m”) and an area of 346.2 square metres (“sq. m.”).

The appellant has also applied for two minor variances from the provisions of the By-law:

Frontage of 10.365 m. is requested for each of the two lots, whereas a minimum frontage of 12 m is required;
A lot area of 346.2 sq. m. is requested for each of the two lots, whereas a minimum lot area of 464 sq. m. is required.

PARTICIPANTS

The following local residents were qualified as participants to these proceedings:

Joel Mandat

Jo-Ann Mandat

Kevin Toland

Jane Toland

PARTICIPANTS’ CONCERNS

The participants expressed opposition to the requested consent and minor variances. They expressed their concern that development of the two proposed new two storey detached homes where formerly a single detached bungalow stood, would adversely impact the physical character of the area. They expressed concern about both the design of the homes and the fact that the lot frontages and the lot areas would be under the minimum dimension required under the By-law. They were also concerned that this would set an unwelcome precedent in the area. Additionally, they expressed concern that there would be overlook and privacy issues for adjoining lots – particularly for 6 Elfreda Blvd and 108 Newlands Ave. Finally, a concern was raised regarding the interface of the proposed location of the driveways of the proposed two new homes with vehicular and pedestrian (both schoolchildren and adults) traffic.

EVIDENCE AND FINDINGS

The Board qualified Eros Fiacconi, Registered Professional Planner to provide opinion evidence on land use planning.

Consent

With respect to the requested consent, Mr. Fiacconi testified that the proposed 10.365 m frontage of each of the proposed severed and retained lots conforms to the majority (68.5%) of the lot frontages in the study area (Exhibit 7). The majority have less than 10 m. frontage. On Newlands Avenue, which runs between Birchmount and the west arm of Santa Monica Blvd, the percentage is 67%.
Exhibit 7 also demonstrates that at least 56% of the lots in the study area and at least 50% of the lots on Newlands Avenue are 306.5 sq. m. in area or less. The proposed severed and retained lots are each approximately 346 sq. m. in area.
In response to the evidence of Jo-Ann Mandat, one of the participants, Mr. Fiacconi pointed out that Exhibit 7 shows that only Elfreda Blvd and Flagstaff Road do not have lots with frontages less than 12 m. and areas less than 464 sq. m. He opined that it is those lots on Elfreda Blvd and Flagstaff Rd that represent the anomaly in the study area, and not the proposed severed and retained lots.
On Mr. Fiacconi’s unopposed evidence, the Board finds that the proposed severed and retained lots are of similar frontage and area to the majority of the lots in both the (larger) study area and the lots on Newlands Avenue itself.
Mr. Fiacconi then addressed the issue of privacy, which was also raised by two of the participants –Jane Toland in 6 Elfreda Ave and Joel Mandat in 108 Newlands Ave. He pointed out that the proposed units will be set back at least 10 m. from the rear lot line, which abuts Ms. Toland’s side lot line. The By-law requires only 7.5 m. He also pointed out that Ms. Toland’s home has a mature cedar hedge, which provides privacy to the rear yard of her home.
Mr. Mandat’s home is on a corner lot and is a 60 year old ranch style bungalow, which stretches across much of the width of the lot at 108 Newlands Ave. He testified that while there exists the possibility of overlook from the second story side windows of the most easterly of the proposed new homes, it is not excessive given the urban nature of the area. The proposed new lots are also set back 2 m. from the side lot lines, whereas only 1.2 m. is required.
On Mr. Fiacconi’s unopposed evidence, the Board finds that the proposed new lots will not adversely affect their neighbours’ reasonable expectations of privacy or light and air.
Mr. Toland introduced a letter that he had received from the Toronto Police Department responding to his concerns respecting the safety of the T-intersection of Newlands Avenue and Santa Monica Blvd directly in front of 106 Newlands Ave (the subject lands). The letter from the Toronto Police Department indicated that its experts were studying the matter raised and would get back to Mr. Toland. As of the date of the subject proceedings, the Police have not got back to Mr. Toland with results of their study and recommendations, if any.
In the absence of evidence, the Board finds that it is unable to make a finding on this matter.
Mr. Fiaconni then took the Board to s. 51(24) of the Planning Act. This subsection lists the criteria to which an application for the subdivision of land must have regard. It provides that:

In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites.

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4).

Minor Variances

Mr. Fiaconni testified that the requested consent has appropriate regard for all of the above criteria. It is, in his professional opinion, in the public interest and represents good planning. The Board agrees. The two new 10.365 m wide lots will replace the existing 20.72 m wide lot that represents a different era of land use planning, when land was plentiful, gasoline was cheap and Eglinton Avenue east of the Don Valley was little more than a country road. The severance will allow two large families to live in compact, yet spacious and energy-efficient homes where today exists a sprawling ranch style home that pays little or no heed to the needs of current and future residents of a fast growing, rapidly urbanizing former distant suburb.
In order for a variance from the provisions of a municipal zoning By-law to be authorized it must satisfy the four tests under s. 45(1) of the Planning Act. It must conform to the general intent and purpose of both the official plan and zoning By-law for the municipality; it must be minor; and it must be desirable for the appropriate development of the property. If it fails even one of these tests, the Board must refuse to authorize it.
Mr. Fiacconi testified that the subject lands are designated Neighbourhoods in the City of Toronto Official Plan (“OP”), which designation permits single family detached houses and encourages new investment in mature areas that are serviced with full infrastructure including schools and transit. He pointed out that the subject lands are located in an area so serviced.
He indicated that the intent of the By-law is to maintain uniform relationships between and among the buildings on streets throughout the study area. Referring to the photos in Exhibit 4, he testified that the proposed new lots support existing relationships among buildings and do not offend the existing streetscape in any way.
He pointed out that the requested variances in frontage and lot area are minor in magnitude and conform to the majority of frontages and lot areas both in the study area and on Newlands Avenue itself. He also testified that as a result of the proposed new development, there will be little or no impact on the privacy or light and air of any of the homes in the immediate area of the subject lands.
He opined that the requested minor variances are desirable for the appropriate development of the lands since they represent needed new investment in the form of two energy efficient family homes where previously only one older home that had been constructed to outdated standards of efficiency now stands.
Finally, he testified that the requested consent and minor variances are both consistent with the intensification and compact city policies of the Provincial Planning Statement and conform to similar policies in the Growth Plan for the Greater Golden Horseshoe.

CONCLUSIONS

On the evidence of Mr. Fiacconi, the Board finds that the requested consent and minor variances are in the public interest and represent good planning.

ORDER

The Board orders that the appeal is allowed. Provisional consent is granted and the requested minor variances are authorized subject to the conditions listed in Exhibit 8, which is appended to this decision.

“C. Hefferon”

C. HEFFERON

MEMBER

11 PL130948 ONTARIO MUNICIPAL BOARD COMMISSION DES

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