“Not everything that can be counted counts, and not everything that counts can be counted.”
– Albert Einstein
Is planning a numbers game? Or is it context sensitive? A recent case from the Toronto Local Appeal Tribunal (the “TLAB”) suggests that, at least in Toronto in relation to minor variance applications, it’s the latter. In CZ Designs and Consulting Inc, Re. (2022) (“CZ Designs”), the TLAB agreed with the Committee of Adjustment (the “Committee”) and granted variances for floor space index, building length, and staircase width at the rear of the property to facilitate the construction of a new dwelling at 251 Old Forest Hill Road.
From a numerical perspective, the variances requested greatly exceeded the range of floor space indexes, building lengths, and staircase widths found in the neighbourhood and approved in other variance applications. However, when considering the numerical data put before him by the planner opposing the project, Member Swinkin appeared skeptical. “Perspective matters”, he stated. A “purely arithmetic approach adopted [by the opposing planner] has the effect of removing context from the assessment of the proposal and diminishing the qualitative features from their role in an all encompassing judgement”.
Far from a new paradigm, Member Swinkin’s decision seemingly returns the TLAB to the context sensitive approach developed over many decades at prior land use planning tribunals. What follows is the history of this approach, its subsequent decline, and its rebirth.
Background – Neighbourhood Character Past
A line of cases before the TLAB, and before it the Local Planning Appeal Tribunal (the “LPAT”) and the Ontario Municipal Board (the “OMB”), have all emphasized the importance of context in assessing minor variance applications.
In Lindsay, Re. (1997), the OMB approved a minor variance that reduced the site’s setback requirements to zero, therefore allowing the construction of a minaret tower. While a drastic change from the existing zoning, Member Melling noted that “in practical terms” the property line was not adjacent to the street, and therefore, the intent of the Zoning By-law, that traffic sight lines be adequate, would be maintained.
In Toronto Standard Condominium Corp. No. 1517 v. Toronto (City) (2006), the OMB used this logic to establish the “TSCC principle” that has been followed numerous times. That is:
Minor […] cannot be regarded as a robotic exercise of the degree of numeric deviation, but must be held in light of the fit of appropriateness, the sense of proportion, a due regard to the built and planned environment, the reasons for which the requirement is instituted, the suggested mitigation conditions to address the possible concerns and last, but not the least, the impact of the deviation.
[…]
A long line of Board cases has held that the assessment of whether it is minor or not cannot be fathomed on an a priority basis. It has been our consistent practice that the question of minor is best to be assessed on an empirical, a concrete and fact-specific basis.
The OMB went on to look at the context of the neighbourhood and approved a minor variance allowing for a narrower driveway width.
In F&A Associates (2017), TLAB Member Burton, citing the TSCC principle, granted a variance for a higher lot coverage that was originally refused by the Committee, holding that the variance “does not appear to be a significant increase from the by-law” and that “[t]his finding is made only in the light of the individual circumstances of this property, its size and location next to a corner lot”. The TLAB went on to state that the “purpose and sense of proportion” must be considered alongside the numerical values of a variance.
Until this point, the context of a development, including its neighbourhood context, carried the day. But this changed in 2018.
OPA 320 – Neighbourhood Character Present
“At last we have democracy. Or perhaps we have residents’ groups that control their local councillors, thus ensuring the everlasting “stability” of their neighbourhoods.”
– George Popper (Architect, Urban Fabric Developments)
Official Plan Amendment No. 320 (“OPA 320”) was passed by the City of Toronto (the “City”) Council in 2015 but did not come into force and effect until December 2018, due to appeals before the LPAT. OPA 320 built upon an existing City Official Plan policy to require new development within the City’s existing “Neighbourhoods” designation, to respect and reinforce that neighbourhood’s so-called ’prevailing’ physical character. At a settlement hearing, the LPAT approved OPA 320 with an amended policy which further clarified “prevailing” to mean “the most frequently occurring”, or, where neighbourhoods contain a mix of physical characters that which “exists in substantial numbers.”
While the intent of this amendment was to provide greater stability within the City’s existing neighbourhoods, the focus on “most frequently occurring” and “in substantial numbers” drove the planning process towards a numbers game.
In practice, to demonstrate “prevailing” as introduced by OPA 320, it is now expected that a study be done, to show that the proposed development is “materially consistent with the prevailing physical character of properties”. The prevailing character must be assessed at both an immediate neighbourhood context (within properties facing the same street as the proposed development, on both the same block and the block opposite) and a broader neighbourhood context (the entire geographic neighbourhood). This requirement adds a significant layer to the planning process, which drives up costs for proponents and turns what should be efficient TLAB hearings into multi-day affairs, complete with lengthy statistical analyses.
In Mahboubi, Re. (2021), the TLAB considered and denied an application for a minor variance to facilitate construction of a parking pad on the property to allow for electric vehicle charging. The City opposed the request in part because most houses on the street did not have front parking pads, whereas those with parking pads cumulatively represented only 12% of properties on the street. Rather than discuss the application purely on its merits, the City opposed the variance because front facing parking pads constituted “the minority for the neighbourhood in question” and “would not respect and reinforce the prevailing character.” Accordingly, the application failed because it did not maintain the general intent and purpose of the City’s Official Plan as amended by OPA 320.
In another instance, the Committee accepted the advice of City planning staff, and refused to grant variances to facilitate the construction of a triplex at 54 Westhampton Road, in major part because the “prevailing” character of the neighbourhood under OPA 320 was one without triplexes. This refusal was despite the fact that triplexes were permitted as-of-right on the subject lands by the zoning bylaw, and variances were only needed for height and other technical performance standards.
While that decision was ultimately overturned at the TLAB in Studio K Architects Inc., Re 2020 (“Studio K”), this did not stop the City’s planners from making arguments that triplexes “could potentially destabilize the neighbourhood” and participants from referencing the impacts that could come from “a potential outdoor gathering / barbecue” with a potential twelve residents and their guests. The TLAB ultimately held that the “use” of the building, as a triplex, did not violate the provisions in OPA 320 which deal specifically with physical character.
While a win for the applicant, in a broader context, the TLAB process for this development represents a failure to streamline the planning process and efficiently approve gentle densification. The hearing alone took over one month to conclude. This process ultimately delays much needed housing development under the guise of neighbourhood stability.
Legislative and Bylaw Amendments – Neighbourhood Character Future?
In recent years, a wide variety of planning amendments, both at the provincial and municipal levels, have been brought forward in an attempt to rectify the problems noted above. This includes removing barriers to gentle density in existing, predominantly single-detached housing, neighbourhoods.
On November 28, 2022 Bill 23, the More Homes Built Faster Act was passed by the Government of Ontario and came into force and effect. Among other changes to the planning regime, Bill 23 legalized the creation of multi-unit houses by allowing the following housing typologies on urban residential land:
- Two residential units in a detached house, semi-detached house or rowhouse where there is no more than one ancillary residential unit;
- Three residential units in a detached house, semi-detached house or rowhouse where there are no ancillary residential units; and
- One residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse, (provided no more than two other residential units on site).
On May 10, 2023, the City went further by adopting Official Plan Amendment No. 649 (“OPA 649”) and an associated Zoning Bylaw Amendment, to legalize fourplexes as of right on land designated by the City as “Neighbourhoods”. Notably, OPA 649 permitted multiplexes in Neighbourhoods, “despite” the “prevailing” language added by OPA 320. While not eliminating the term “prevailing” altogether, OPA 649 reaffirms the Studio K decision that “use” does not equate to physical form.
This multiplex allowance is part of a larger program at the City, called “Expanding Housing Options in Neighbourhoods”. Past work has involved the approval of laneway and garden suites and future work is expected to endorse the creation of low-rise residential development on all arterial streets across the City.
Member Swinken’s analysis in CZ Designs shows an acknowledgement by the TLAB that numbers alone cannot determine good planning. Mathematics can help to determine what is “prevailing”, but cannot define it altogether.
The City has not clawed back OPA 320 but has an opportunity to do so in its ongoing municipal comprehensive review. Whatever the result, Davies Howe LLP will be here to guide you for all your land use planning needs.
