Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-12-13
23 182664 S53 20 TLAB
Jiang (Re), 2023 ONTLAB 172
DECISION AND ORDER
Issuance Date:
December 13, 2023
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s):
J. Jiang
Applicant(s):
J. Jiang
Property Address:
151 Pitt Ave.
COA File No.:
23 140536 ESC 20 CO (B0018/23SC)
23 121327 ESC 20 MV (A0068/23SC)
23 121337 ESC 20 MV (A0069/23SC)
TLAB Case File No.:
23 182664 S53 20 TLAB
23 182665 S45 20 TLAB
23 182668 S45 20 TLAB
Hearing Date(s):
December 8, 2023
Decision Delivered By:
TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant/Applicant
J. Jiang
J. Battaglia
Party
L. Sanders
Participant
S. Makol
Participant
Z. Ljuta
L. Sanders
Participant
T. Bryson
S. Makol
Participant
J. Agaria
L. Sanders
Participant
P. Newbury
L. Sanders
Participant
S. Sarathchandra
L. Sanders
Participant
S. Ranasinghe
L. Sanders
Participant
G. Crucei
L. Sanders
Participant
S. Fernando
L. Sanders
Participant
T. Smith
L. Sanders
INTRODUCTION AND CONTEXT
1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of applications for a consent to sever and for variances required by proposed houses on the severed lots.
2The subject property, 151 Pitt Ave, is located in the Clairlea-Birchmount neighbourhood of the former City of Scarborough.
3The subject property is designated Neighbourhoods in the City Official Plan (OP) and zoned RD (f12.0;a371)(x169).
4This is an appeal launched by the Applicant. Apart from the original filing of the Appeal, no plans, witness statements or any other supporting materials were filed by the Applicant/Appellant prior to commencement of the Hearing of this matter.
5Mr Battaglia was authorized to represent the Appellant. He had not filed the required Curriculum Vitae or the TLAB form 6 acknowledgement of Expert’s Duty and I did not qualify him as an expert witness.
6In my opening instructions to those present at the Hearing, I reminded all present that the matter was being heard as a “Hearing de novo”, which means that the applications that were before the COA were being heard anew. I advised that the burden is on the Applicant to prove its case.
7I advised those present at the Hearing that, in accordance with Council direction, I had attended at the site and the surrounding area and that I had reviewed the pre-filed materials in preparation for the hearing of their evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
8Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2020 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’).
9Consent – S. 53
TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " 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 of the Planning Act;
(b) whether the proposed subdivision is premature or in the public interest;
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;
(d) the suitability of the land for the purposes for which it is to be subdivided;
(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;
(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); 2016, c. 25, Sched. 4, s. 8 (2).
10Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
SUMMARY OF EVIDENCE
11I asked Mr. Battaglia why he had not provided a Witness Statement (or Expert Witness Statement). He advised that he did not know that they had to produce evidence for this Hearing. He acknowledged that he had seen the Notice of Hearing where the submission dates for Witness Statements were specifically set out.
12I allowed Mr. Battaglia to make a verbal statement in support of the applications despite the lack of any documentation. There were no other Parties present. The Participant present, Mr. Makol, did not object.
13Mr. Makol relied on his own Participant Witness Statement and that of Mr. Bryson, for whom he was an authorized representative.
14Mr. Makol’s comments addressed the Planning Act tests for the consent to sever and the requested variances. In his opinion, the proposal does not respect the character of the neighbourhood, as is required by the Official Plan. He advised that the proposal would have an adverse effect on the neighbourhood. He addressed each variance and provided his opinion that the requested variances were not consistent with the intent of the Zoning By-law. He was of the opinion that the development was not desirable and would destabilize the neighbourhood.
ISSUES AND ANALYSIS
15Mr. Battaglia was unprepared to meet the requirements of the TLAB for approval of the applications. He explained that although he was generally familiar with the role of the TLAB, he did not understand the obligations to provide evidence.
16I gave Mr. Battaglia the opportunity to speak in support of the applications. After some technical difficulty, he was able to screen-share a map with some notations and photographs of some houses that he said showed development that was happening in the area.
17He said that most homes were three storeys and that “this forms a pattern in the neighbourhood”. He identified seven or so addresses that he said, “have similar operations to the property”. He suggested that the neighbourhood is growing “in that direction”, “how intensification is happening” and “how the provincial government is intending that things happen”.
18I would characterize Mr. Battagia’s verbal statement to be very general. He did not address the requirements of the statute for approval of a consent to sever and did not address the four tests that are set out in the Planning Act for approval of variances. He also did not describe the proposed severance or the proposed houses to be constructed on the severed lots.
19While I was shown a map with notations on-screen, I was not given an explanation of what was being depicted, nor how the map related to the policies of the Official Plan, or any of the other tests set out in the legislation.
20While the photographs of houses Mr. Battaglia showed on screen might have been relevant to the matter, I was not provided with the context necessary to relate these photographs, or the map of “incidences” I was shown, to my decision.
21The TLAB is a quasi-judicial tribunal and is bound by basic legal rules of procedure and evidence. As a practical matter, the evidence submitted must provide a sufficient basis to satisfy the TLAB that the proposals meet the tests set out by the statute. The presiding member must, in their Decision, provide reasons for their decision. In this case, I have no foundation for making a decision in favour of the Appellant.
22Some of the foundational material that the Appellant did not provide includes:
A set of proposed plans.
A list of requested variances.
A review of the pertinent Official Plan policies and how the proposal maintains the general intent and purpose of those policies.
A review of the general intent and purpose of the Zoning By-law provisions that are to be varied.
An identification of the broader neighbourhood and the immediate context for the purposes of establishing the prevailing character of the neighbourhood and for assessing whether the proposal meets the development criteria set out in the Official Plan (OP Policy 4.1.5).
Evidence of the number of similar severances/houses that exist in the neighbourhood and in the immediate context, as compared to the neighbourhood as a whole (prevailing character of the neighbourhood).
An analysis of lot frontages and lot areas.
An understanding of the prevailing height, massing, scale and density of houses in the neighbourhood and how the proposed houses fit within that context.
23The Appellant took the active step of instructing that the Appeal be initiated and is directly responsible for understanding the obligations that they were setting in motion. Having filed an appeal to the Tribunal, the Appellant and their representatives are obligated to cultivate a basic understanding of the format, expectations, and Rules of the TLAB.
24Mr. Makol, in his testimony, challenged Mr. Battaglia’s characterization of the neighbourhood. He asserted that the proposed severed lots would not respect and reinforce the existing neighbourhood and that the lots would not be consistent with the predominant lot sizes.
25I commend Mr. Makol for his research and the understanding he conveyed of the tests that the proposal must meet if it was to be approved.
26I find that Mr. Battaglia did not provide sufficient evidence for the TLAB to approve the proposed consent to sever, nor the variances that would be required to facilitate the two houses that are proposed for the anticipated resultant lots.
CONCLUSION
27I find that there is insufficient evidence for me to be satisfied that the proposed severance, and the variances requested for the two proposed resulting lots, maintain the general intent and purpose of the Official Plan. On this basis, I also find that the requirement of s.53 of the Planning Act, that a consent must conform to the Official Plan, has not been substantiated.
28There is insufficient evidence for me to be satisfied that the four tests outlined in s.45(1) of the Planning Act have been met.
DECISION AND ORDER
29The Appeal is dismissed. The Committee of Adjustment decision noted above is final and binding, and the file of the Toronto Local Appeal Body is closed.
A. Bassios
Panel Chair