ISSUE DATE:

Jan. 26, 2006

DECISION/ORDER NO: PL050303
0282
Ontario Municipal Board
Commission des affaires municipales de l’Ontario

Edward Zemla and Vanessa Raven have referred to the Ontario Municipal Board under
subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, determination and
settlement of details of a site plan for lands municipally known as 207 Dawlish Avenue, in the
City of Toronto (North York)
OMB File No.M050047

Edward Zemla and Vanessa Raven have referred to the Ontario Municipal Board under
subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, determination and
settlement of details of a Ravine Permit and Private Tree Removal Permit plan for lands
municipally known as 207 Dawlish Avenue, in the City of Toronto (North York)
OMB File No.M050080

Edward Zemla and Vanessa Raven have appealed to the Ontario Municipal Board under
subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from a decision of the
Committee of Adjustment which dismissed an application numbered B024/05 for consent to
convey part of the lands municipally known as 207 Dawlish Avenue, in the City of Toronto
(North York)
OMB File No.C050120

APPEARANCES:

Parties Counsel

Edward Zemla and Vanessa Raven A. Brown

City of Toronto M. Crawford

DECISION DELIVERED BY J. CHEE-HING

CONTEXT:

Edward Zemla and Vanessa Raven (proponent) propose to demolish an existing

house on the property located at 207 Dawlish Avenue in the City of Toronto (City) and
sever the property for the purposes of creating a new residential lot. Two new dwellings
with detached carport/garages are proposed to be built on the two lots. The property is
located in the area south of Lawrence Avenue East, and east of Bayview Avenue on the
south side of Dawlish (Exhibit 2). The property is designated Residential Density One
(RD-1) in the Official Plan (OP) and zoned R3 Single Family Residential. The property is
subject to the City’s Ravine Protection By-Law which regulates the injury and
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destruction of trees, dumping of refuse and changes to grade within protected areas
and also subject to the City’s Private Tree By-law. The proposal calls for the removal of
a number of trees in order to allow for the siting of the two dwellings and tree replanting
as part of a ravine stewardship plan.

In order to bring this proposal to fruition, the proponent seeks a severance,

approval of the Site Plan, the issuance of a Ravine permit and a Private Tree Removal
permit. The City’s Committee of Adjustment (Committee) refused the severance
application and the matter is now before the Board on appeal together with referral to
the Board for determination and settlement of details of the site plan, ravine permit and
private tree removal permit plan.

CONSENT REQUESTED:

The retained lot would be irregular in shape, having 5.8-metres and 10.5-metres
fronting on the south side of Dawlish Avenue, and an area of 1,180-square metres. The
conveyed lot will have a frontage of 12.16-metres and an irregularly shaped area of
1,004.3-square metres. (Tab 5, Exhibit 2).

The proponent was represented by counsel (Mr. A. Brown), a professional

planner (Mr. G. Daly), and a landscape architect and arborist (Mr. P. Ferris). The City
was opposed to the proposal in its entirety and was represented by counsel (Mr. M.
Crawford), a professional planner (Mr. M. Manett), and several City staff (Ms. R. Henry,
Messrs. N. DeFraye, P. Dmytrasz, and G. Williams). A number of participants – all
residents of the area – appeared in opposition to the proposal (Ms M. Usher-Jones, M.
Judge, Messrs. R. Keiper, G. Cowan, F. Theysmeyer).

ISSUES:

At this hearing, the central issues that the Board had to resolve are threefold.
Firstly, would the proposed severance be consistent with the lotting fabric of the
neighbourhood and meet the statutory requirements under Subsection 51(24) of the
Planning Act. Secondly, does the Ravine Stewardship Plan proposed by the
proponent’s arborist provide for the appropriate replanting for trees to be removed and
adequate protection of the remaining trees on the subject property? Thirdly, does the
site plan as submitted by the proponent represent good planning? These issues are
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very much inter-related and cannot be considered in isolation when deciding on the
merits of the proposal.

FINDINGS OF THE BOARD:

This hearing lasted three days in which both parties made extensive
submissions. The Board heard from expert witnesses qualified in the areas of land use
planning, urban forestry, and arboriculture. The Board also heard the concerns of a
number of participants who live in the immediate area. Having heard all of the evidence
presented at this hearing, the Board finds that the consent to convey application does
have merit. The retained and conveyed lots will be consistent with the lotting fabric of
the neighbourhood and the application meets the statutory requirements of Subsection
51(24) of the Planning Act. The provisional consent is subject to the conditions
attached hereto as Attachment “1” which were provided by the proponent’s counsel.

On the matters of the determination and settlement of the details of a Ravine

Permit and Private Tree Removal Permit plan, the Board finds that the Ravine
Stewardship Plan submitted by the proponent’s arborist is adequate and acceptable.

On the matter of the determination and settlement of details of a site plan, the
Board finds that the City’s concerns with respect to storm water management, drainage
and grading are legitimate and valid. The Board shares these concerns as well and is of
the opinion that the proponent and the City can appropriately and adequately resolve
them.

The Board’s Order will be withheld on all matters pending the execution of a Site
Plan Agreement between the proponent and the City.

The reasons for my findings follow.

CONSENT APPLICATION:

Mr. G. Daly, planner for the proponent, testified that the subject lot is the largest
in the neighbourhood and even after the severance both lots will be among the larger
lots in the neighbourhood. The frontages of both lots as measured from the minimum
front yard setback are 18-metres for the retained lot and 25.91-metres for the conveyed
lot. The minimum lot frontage under the ZBL is 18-metres. The proposed dwellings to
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be built will not require any variances and meet all applicable zoning standards for their
construction. It was Mr. Daly’s evidence that the neighbourhood is mature and that both
lots are well within the range of lot sizes in the area. The consent application supports
residential intensification through infilling and as such supports the intensification
policies of the Official Plan (OP) and the Provincial Policy Statement (PPS). It was his
opinion that the application is not premature and meets all of the statutory requirements
under Subsection 51(24) of the Planning Act.

Counsel for the City submitted that the consent application is premature and that
it fails to meet the requirement of Subsection 51(24)(h) of the Planning Act, which
speaks to having regard for the conservation of natural resources and flood control. It
was Mr. Crawford’s submission that the site plan does not adequately address the
issues of grading, drainage and storm water management on the subject property. The
evidence of Ms Ruthanne Henry, the City’s urban forestry planner was that the
construction of two houses on the severed and retained lots may result in significant
water run-off, as the site is too small to accommodate two dwellings. It was her
evidence that the City has not received the appropriate storm water management and
drainage plans to adequately assess the impact of the proposal on the ravine.
Furthermore, it was her contention that if two dwellings were built, there would not be
adequate space on the subject site for the re-planting of trees to compensate for those
removed (Exhibit 4). It was the evidence of Mr. Paul Ferris, the proponent’s arborist that
the drainage pattern will not change whether one or two houses are built on the subject
lands and that his Ravine Stewardship Plan provides for adequate spacing for tree
replantings to occur.

On the matter of the consent application the Board is satisfied that it meets the
statutory requirements of Subsection 51(24) of the Planning Act. The Board prefers the
evidence of the proponent’s planner that the resulting lots will be compatible with the
lotting fabric of the rest of the area. The Board acknowledges the concerns of the City
with respect to grading, storm water management and drainage and these will be
addressed further in its findings. The creation of an additional lot on the subject property
and the subsequent construction of two dwellings will have an impact on the ravine. The
issue is whether this impact is acceptable. In the Board’s view, the Ravine Stewardship
Plan submitted by the proponent mitigates the impact on the ravine features and the
Board is satisfied that the impacts are acceptable.
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RAVINE STEWARDSHIP PLAN:

Mr. Ferris, consulting arborist and landscape architect for the proponent
elaborated on his Ravine Stewardship Plan for the subject property. In his opinion the
property is not a ravine in the technical sense. It is isolated and not connected with
other ravines. In his words, “it is an isolated piece of backyard with trees on it”. It was
his evidence that most of the trees on the subject property are Norway maples, which
are an invasive species that are not native to Ontario. The City’s policy is to remove
invasive species as they threaten native Ontario trees. His stewardship plan calls for
the removal of some Norway maples in order to protect those that are native (Exhibit 5)
and there will be significant replantings of native trees. Mr. Ferris is of the opinion that
the drainage pattern will be the same whether there are two or one house on the subject
property. 18 trees are proposed to be removed of which 16 are considered invasive
species (Norway maples) and five of the trees slated for removal were marked by the
City to be removed due to extreme lean or the health of the trees (Exhibit 12). It was
Mr. Ferris’s professional opinion that the site plan, stewardship plan and the landscape
plan meet the requirements of the City’s ravine and tree By-laws and that there are no
drainage issues.

Counsel for the proponent submitted that the proponent has complied with all the
requirements of the City and the trees to be removed are invasive and not significant.
Only two trees were identified as significant – No. 50 and 26 - and adequate measures
have been taken to protect No. 26 during construction (Exhibit 4). It was his submission
that the Ravine Stewardship Plan is extremely detailed and comprehensive and can be
considered the “Cadillac” of plans prepared by a respected consulting arborist. The
proponent will suffer undue delay if the City is allowed to further delay this proposal.

Under cross-examination, the City’s arborist, Mr. De Frey conceded that this
property does not meet the definition of a ravine under the ravine By-law but as a result
of the City’s mapping system was identified as part of the City’s ravines. Mr. De Frey
had no concerns with the proponent’s Ravine Stewardship Plan.

The City’s main objections to the Ravine Plan are that there is not adequate
space for reforestation of the subject property if the consent is granted and two
dwellings are constructed. The creation of an additional lot will result in too many trees
 -6- PL050303

being removed for the construction of the house on that lot. Mr. De Frey, urban forestry
planner for the City, testified that the City’s ravine By-law imposes no restrictions on the
types and sizes of trees in a ravine and that all trees are protected. Ms Ruthanne Henry,
another urban forestry planner for the City, and Mr. Manett, an external consulting
planner retained by the City to provide land use planning evidence, both testified that
the lack of soils, drainage, grading and storm water management plans for the City to
review makes it extremely difficult to properly assess the impact of the proposal on the
ravine. Ms Henry stated that she is not objecting to the redevelopment of the property
provided there is adequate space left to reforest the ravine.

Many of the concerns raised by the City relate to both appropriateness of the
Ravine Management Plan and the Site Plan. The Board will address the merits of the
Site Plan further on. That this proposal will have an impact on the ecology and other
features of the ravine is obvious. The more relevant question facing the Board is
whether this impact is acceptable and whether appropriate measures will be taken to
mitigate the impact to the ravine. The Board is satisfied that the proponent’s Ravine
Management Plan provides for adequate tree replantings with native species for those
trees to be removed and that adequate protection measures will be taken to protect
trees at risk during site preparation and construction. The Board is also of the opinion
that the impact on the existing tree canopy is not significant. The Board will authorize
the issuance of the Ravine and Private Tree Removal Permits subject to the settlement
of details of the Site Plan.

SETTLEMENT OF DETAILS OF THE SITE PLAN:

The Board now turns its mind to the settlement of details of the site plan. Both
the City’s urban forestry planner (Ms Henry) and consulting planner (Mr. Manett)
testified that the Site Plan Agreement submitted by the proponent at this hearing is
premature. It was Ms Henry’s testimony that the most recent site plan submitted to the
City was not acceptable as it lacked details regarding the drainage of the site and a
soils analysis study. Counsel for the City submitted that the proponent had not
submitted a storm water management plan; drainage plan and grading plan for review
and that these plans should be properly reviewed prior to site plan approval. The Board
heard evidence that the City had listed six conditions to be included in a Site Plan
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Agreement for this proposal as well as notice of approval conditions to be satisfied prior
to the approval of site plans and drawings (Exhibit 1, Tab 6).

Counsel for the proponent is seeking the Board’s approval of the Site Plan
Agreement as submitted (Exhibit 8). It was his submission that the City had ample time
and opportunity to review the site plan and it was incumbent on them to bring an
alternative Site Plan Agreement to the hearing if they were opposed to the proponent’s
site pan. It was his submission that his client is suffering undue delay by the City’s
actions. Counsel indicated a willingness to include the six conditions referred to by the
City into the Site Plan Agreement but later retracted his offer.

The participants at the hearing all expressed concerns over the potential of
flooding during heavy rains, which will be exacerbated by the proposed construction of
two houses in the ravine. One participant, Mr. F. Theysmeyer was concerned about
ponding of water in the ravine from heavy rains, which could lead to flooding of
properties abutting the subject property. All the participants were concerned about the
adverse impacts of the proposal on the ravine and that the character of the
neighbourhood will change if the trees are removed. Mr. R. Keiper was of the opinion
that the streetscape would be adversely impacted if the consent were granted since
there would not be adequate frontage for the resulting lots.

In the Board’s view, the City and the participants have legitimate concerns with
respect to effective storm water management, drainage and grading of the site. In the
Board’s view these concerns must be addressed and takes precedence over any
potential delay that may be suffered by the proponent in advancing his proposal. The
proponent is to prepare and submit to the City, a storm water management plan,
drainage plan and grading plan. The City will be given six weeks following receipt of
these plans to review.

CONCLUSION:

In conclusion, for the reasons elaborated upon, the BOARD WILL ORDER that:

1. The appeal is allowed and provisional consent is to be given subject to

conditions attached hereto as Attachment “1”;
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2. The Ravine Permit and Private Tree Removal Permit plan are approved.

The BOARD WILL WITHHOLD ITS ORDER pending receipt of an executed Site
Plan Agreement. The proponent will submit storm water management; drainage and
grading plans to the City and the City will be given six weeks following receipt of these
plans to review. If there are any concerns arising from this review, the City and the
proponent will discuss them and incorporate changes to the Site Plan Agreement. If
there is no Site Plan Agreement by the end of the six weeks then this hearing will
continue and the Board will settle the details of the site plan agreement.

“J. Chee-Hing”

J. CHEE-HING
MEMBER