Reed (Re), 2023 ONTLAB 139

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-09-26

2022 238761 S45 03 TLAB

Reed (Re), 2023 ONTLAB 139

FINAL DECISION AND ORDER

Issuance Date:

September 26, 2023

PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

S. REED

Applicant(s):

I. HALAVAC, S. REED

Property Address:

166 CAMPBELL AVE

COA File No.:

23 119138 STE 09 MV (A0210/23TEY)

TLAB Case File No.:

23 151340 S45 09 TLAB

Hearing Date(s):

September 14, 2023

Decision Delivered By:

TLAB Panel Member T. Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Representative

Applicant/ Appellant

I. HALAVAC

S. REED

Participant

P. WACHTER

K. MAYER

1The Halavac/Reed family wish to build a laneway suite at the rear of their house on 166 Campbell Ave. To do so they request the one variance set out in Table 1. I have quoted the plan examiner’s notice and drawn a sketch (page 4) to illustrate the variance. On May 17, 2023, the Committee of Adjustment refused the variance; Ms. Reed appealed and so this matter came to the TLAB.

THE LEGISLATIVE AND POLICY FRAMEWORK

2The development must be consistent with the Provincial Policy Statement and conform to the Greater Golden Horseshoe Growth Plan. Although laneway housing as an overall housing type is supported by both documents, the particular variance sought is, in Ms. Mayer’s own words, specific to a rear to side lot relationship between two lots. In my view, this case turns on distinguishing between the development as a whole, and the variance, which applies only to a portion of the second floor. As a result, the policy support for laneway housing is a “positive” but not completely decisive in this case.

Figure 1. Variance sought for 166 Campbell Ave

Required/Permitted

Proposed

1

South side yard setback for second floor of laneway suite

1.5 m (5 feet)

“The proposed south side setback is 0.91m for a portion of the wall facing the south lot line and the balance of the south wall will be 0.05m to the south lot line.” (plan examiner’s notice, August 14, 2023)

3The variance must also comply with s. 45(1) of the Planning Act and applicable case law and meet all of the four tests:

• maintain the general intent and purpose of the Official Plan;

• maintain the general intent and purpose of the Zoning By-laws;

• be desirable for the appropriate development or use of the land; and

• be minor.

Right to develop

4The obligation is on the proponent to demonstrate to the decision-maker that the tests are met on the balance of probabilities; there is no right to a variance.

EVIDENCE

5I heard from two witnesses: Ms. Reed, the proponent, and Ms. Mayer, her neighbour. I qualified Ms. Reed as able to give opinion evidence in land use planning. In addition to being the homeowner, she is a government land use planner. She undertook to follow the requirements of an expert witness, that is, to be fair, objective and not testify purely in her own interest.

ISSUES AND ANALYSIS

6Laneway suites are an ancillary building, sharing the same water and sewage lines of the main residential building. They were authorized across the City in July 2019, following a long period of community consultation in which there was little opposition. The overall goal is to relax zoning to promote private investment in rental housing in established neighbourhoods. Council directed that the program be reviewed after two years, resulting in a number of background reports, including one by Gladki Planning Associates. Gladki recommended a number of “fine tuning” zoning changes, which Toronto Council adopted on December 17-19, 2021. All but one of the changes were in increasing flexibility, for example, the direction of relaxation of the rules.

The change in design

7Ms. Reed had already started her building permit application and this stricter rule change caught her application. Four days before it came into effect, she was in possession of a favourable plan examiner’s notice. However, she had not received a building permit based on the old rules, so she was required to seek a variance.

Figure 2.

8Except for this one change to second floor setbacks, the Gladki report was overwhelmingly positive¹ Gladki observed that most suites are a redevelopment of a rear yard garage in a rectangular lot. Since these are in a closely spaced row, the typical relation is side-to-side, but for the end garage, like Ms. Reed’s, Council introduced a 1.5m (5 feet) setback for a second floor. In Figure 2 the red part indicates the volume not permitted as of right.

9The Committee was considering an earlier design of the laneway suite with no “notch”, merely a simple cube. In redesigning the second floor after the refusal, Ms. Reed tried to accede to the setback while still maintaining a two-bedroom design. Ms. Reed stated that she and the architect tried everything possible, “but just couldn’t make it work”. A zero setback is still intended for the exterior wall next to the corner lot at the end of the lane; this is the jut out beside the kitchen and bath lower left. The neighbour next to this wall did not attend the hearing.

Figure 4. Second floor layout

Application of applicable policies

10Ms. Reed stated that the variance fully maintains the intent of the “complete communities” goals of the Province and the City. “Complete communities” refers to housing that is suitable for families, older and physically challenged individuals. The architect has created a 720 sq ft apartment with two bedrooms. Ms. Mayer cited statistics that show one bedroom is the largest proportion of laneway suites; ² however I find that Council intends that there should be a “variety”, particularly in two and three bedrooms, which the market has difficulty delivering in sufficient numbers, and which is needed for families.

11Ms. Mayer’s main argument was that according to diagram in the Gladki report, the proposed laneway suite is a “textbook example” of what the amendment seeks to prevent. (Figure 5, next, upper left). Gladki’s comment based on “industry experts” must be read in the context of Ontario’s planning system that allows a variance process and is not meant to be an absolute bar in all circumstances.³

Figure 5. Upper left :Gladki diagram. Upper right: Reed shadow study with sheds hatched Below, aerial photo of rear yard with shed heights. [“Removed” indicates proposed location of laneway suite]

12I regard the Gladki diagram as merely illustrative. There are rear yard sheds in both Ms. Mayer’s yard (3 m high) and in her neighbours to the right (4 m high). The photo shows a second-floor rear window (gray two storey addition, second from corner) from which Ms. Mayer says her view will be partially blocked.

13The test is whether the variance maintains the intent of the zoning by-law, and any loss of sky view would be caused by the 6.3 m height, whether the notch is 1.5 m or 0.91 m wide. I find that there is no adverse impact of a planning nature that results from the granting of the variance.

14In support of her position, Ms. Mayer cited s. 4.1.9 of the Official Plan that states adequate privacy, sunlight and sky views will be provided to neighbours with respect to a new infill development.⁴ I appreciate that Ms. Mayer will lose part of the beautiful views to the north, but I have some doubt that this section applies here, since the laneway suite is no longer “infill that varies from the local pattern” by virtue of the 2021 amendments that permit laneway housing as of right.

15I find that the variance is in keeping with Council’s overall goals, that favour a more family-oriented unit, near the Pearson UP Express, subway stations, parks and schools etc.

16In addition, Ms. Mayer mentioned snow deposits and heat reflection as concerns. The Building Code requires that drainage be towards the main house at 166 Campbell, and this has been done. The variance does not increase heat reflection. I do not accept that these arguments should defeat the project.

17I find that the variance meets the “general” intent of the zoning bylaw, which is to permit a fairly bulky ancillary building with separation distances and angular plane measurements from the main building (Ms. Reed’s house), but no such imposition on separation distances to other neighbouring buildings (Ms. Mayer’s house). I also find that it is minor in numerical value and impact and desirable for the appropriate development of the laneway building. Accordingly, I find that all the statutory tests have been met.

DECISION AND ORDER

18The variance in Figure 1 is authorized.

T. Yao

Panel Member

a) have heights, massing and scale that are respectful of those permitted by zoning for nearby residential properties, while taking into account the existing form of development on the infill property;. . .

c) provide adequate privacy, sunlight and sky views for occupants of new and existing buildings by ensuring adequate distance and separation between building walls and using landscaping, planting and fencing to enhance privacy where needed;

Footnotes

1. 1It noted that for four issues (soft landscaping, rear yard setback angular planes and maximum height), most appeals were rejected, and the projects approved despite non-compliance with the original zoning specifications. (Gladki report p 28, Attachment 2: Report from Gladki Planning Associates (toronto.ca)) The portion dealing with the new setback is as follows: “This review recommends adding a provision in the zoning by-law to account for perpendicular/ irregular lot relationships. Industry experts highlighted that perpendicular lot relationships with laneway suites have resulted in some impacted neighbouring properties, specifically with regards to the permitted two storey height of a laneway suite on a lot with this relationship.”
2. 2Number of Bedrooms - There is a variety in the mix of bedrooms proposed in laneway suites. Of the plans reviewed, the bedroom mix was as follows: Studio 6% One-bedroom 48% Two-bedroom 29% Three-Bedroom+ 17% Of note, two suites contained more than three bedrooms. One had four and one had 5 bedrooms. Both of these suites were constructed with basements. Generally speaking, laneway suites appear to be delivering a variety in unit mix that, on the whole, results in larger 2-3 bedroom units than the City typically secures in multi-unit developments. (Monitoring Program and Zoning By-law Amendments- Final Report https://www.toronto.ca/legdocs/mmis/2021/ph/bgrd/backgroundfile-173157.pdf)
3. 3Please see footnote 1. The Planning Act states: “45 (1) The [TLAB] , upon the application of the owner of any land, . . ., may, despite any other Act, authorize such minor variance from the provisions of the [zoning] by-law, in respect of the . . .building . . ., as in its opinion is desirable for the appropriate development. . . of the . . building . . ., if in the opinion of the [TLAB] the general intent and purpose of the by-law and of the official plan, . . ., are maintained.”
4. 44.1.9. In established Neighbourhoods, infill development on properties that vary from the local pattern in terms of lot size, configuration and/or orientation will: