Toronto Local Appeal Body
40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9
2023-03-13
22 144599 S45 11 TLAB
Kadas v. ABC Residents Association, 2023 ONTLAB 39
DECISION AND ORDER
Issuance Date:
March 13, 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):
P. Kadas
Applicant(s):
L. Penzo
Property Address:
163 Macpherson Ave
COA File No.:
22 100357 STE 11 MV (A0022/22TEY)
TLAB Case File No.:
22 144599 S45 11 TLAB
Hearing Date(s):
September 28, December 9 and 20, 2022
Decision Delivered By:
TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
Name
Representative
Applicant
L. Penzo
Appellant
P. Kadas
A. Platt
Party (TLAB)
ABC Residents Association
C. Kapelos
Expert Witness
J. Benczkowski
For ABC Residents Association
Expert Witness
S. Galbraith
For P. Kadas
Participant
B. A. Liu
Participant
L. Morris
Participant
L. McCluer
INTRODUCTION AND CONTEXT
1This appeal hearing before the Toronto Local Appeal Body (the "Tribunal") related to an application to the Committee of Adjustment (the "Committee") by Peter Kadas (the "Owner") with respect to the property municipally known as 163 Macpherson Avenue (the "Property").
2The Owner wishes to demolish an existing garage at the rear of the Property, which is accessed by a public lane adjacent thereto, and to construct a new structure which will accommodate a two car garage at grade and a laneway suite situated above as a second storey to the structure.
3Council for the City of Toronto (the "City"), commencing in 2018 and expanded territorially in 2019, adopted Official Plan ("OP") policies and enacted zoning amendments which have authorized what are styled as laneway suites as a permitted use on lands designated as Neighbourhoods in the OP, and established performance standards for this use in the Zoning By-law.
4Despite the fact that the OP policies with respect to laneway suites apply universally to lands within the Neighbourhoods designation throughout the City, in the implementation of those policies into the Zoning By-law, at the direction of Council, a carveout was established in certain defined areas in the Midtown area of the City whereby those permissions were not to apply. The Property is located in what is known as the Ramsden Park area, which is within the restricted area under the Zoning By-law in relation to the development of laneway suites.
5The territorial restriction is set forth in Chapter 150.8.20.1(3) of By-law 569-2013. The Owner applied to the Committee for relief from this restriction.
6In all other respects (after a design modification arising through the appeal process), the proposed structure and use comply with the prescribed performance standards of the Zoning By-law.
7The Committee received various City Department comments and a great deal of community input, some in support, but largely opposed to the grant of the requested relief. The Committee refused the application. The Owner appealed. The matter came before the Tribunal for determination.
8The Owner was represented before the Tribunal by counsel, who called two witnesses. The first witness heard by the Tribunal at the behest of the Owner's counsel was David Driedger, who is a Senior Planner in the City Planning Division, and who appeared before the Tribunal under summons at the instance of Owner's counsel. The second witness called by the Owner's counsel was Sean Galbraith, a land use planning consultant of long experience who was qualified to provide opinion evidence on land use planning matters in the proceeding.
9ABC Residents Association (the "Association"), an incorporated residents association active in the area of the Property, elected and was granted Party status. The Association was represented by counsel and their counsel intended to call one witness, Jonathan Benczkowski, a land use planning consultant.
10There were three other persons before the Tribunal, who elected Participant status, all of them near neighbours to the Property: Laryssa McCluer, who resides at 161 Macpherson Avenue, Barbara Arlena Liu, who resides at 165 Macpherson Avenue, and Lorraine Morris, who resides at 167 Macpherson Avenue. Each of the three Participants fully participated in the proceeding by asking clarifying questions of the witnesses and by speaking to their witness statements. All were opposed to the requested variance relief.
THE LEGISLATIVE AND POLICY FRAMEWORK
11Provincial Policy – S. 3 of the Planning Act - A decision of the Tribunal 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').
12In considering the application for variances from the Zoning By-laws, the Tribunal must be satisfied that the application meets all of the four tests under s. 45(1) of the Planning Act. The tests are whether the variances:
a) maintain the general intent and purpose of the Official Plan;
b) maintain the general intent and purpose of the Zoning By-laws;
c) are desirable for the appropriate development or use of the land; and
d) are minor.
SUMMARY OF EVIDENCE
13TheTribunal heard a full day of evidence on the scheduled day for the hearing. As this was insufficient time to hear all of the evidence, the Tribunal scheduled two further hearing days in order to accommodate the expected duration of the balance of evidence and final submissions.
14On that first day of hearing, the Tribunal heard a comprehensive review from Mr. Driedger of the laneway suites initiative, which review is condensed in the following paragraphs.
15Mr. Driedger described the evolution of the regulation of laneway suites. City Council gave direction on July 4, 2017 to initiate a study regarding permission to establish laneway housing in the Toronto East York district. A study was undertaken, which recognized the viability of this form of development in the Neighbourhoods. Council accepted the Planning staff recommendation to lay the foundation for this type of use and at its meeting in June, 2018, adopted Official Plan Amendment 403 ("OPA 403") and enacted By-law 810-2018, which authorized the development and use of laneway suites on Neighbourhoods designated lands within the former municipal areas of Toronto and East York.
16However, at the instance of the local Councillor, notwithstanding that OPA 403 expressly permitted laneways suites throughout the former limits of the City of Toronto and East York, Council directed that the draft form of By-law 810-2018 be revised to exclude a small portion of the neighbourhoods of Ramsden Park, Yorkville Triangle, and Asquith-Collier (the "Excluded Area").
17Subsequently, with the benefit of some field experience with this initiative, in June, 2019, City Council considered Official Plan Amendment 460 ("OPA 460") and its implementing zoning amendment, which proposed to extend laneway suite permissions City-wide on all lots designated Neighbourhoods.
18In the Staff Report presented to Council, dated June 5, 2019, City Planning Department staff indicated that they were asked to consider the appropriateness of laneway suites in the Excluded Area. Having considered the matter and the justification for the provision of laneway housing, staff concluded: "that the proposed Official Plan and Zoning By-law Amendments to permit laneway suites [should] include the Ramsden Park, Yorkville Triangle and Asquith-Collier neighbourhoods."
19Despite this recommendation, Council determined to continue the exclusion by way of their direction in that regard, which has culminated in subsection (3) of Chapter 150.8.20.1 of the Zoning By-law. However, Council directed the Chief Planner to: "consider permitting laneway suites within the Asquith-Collier, Ramsden Park, and Yorkville neighbourhoods as part of the ongoing review of Site and Area Specific Policy 211."
20Mr. Galbraith provided additional background to the issue and advanced his opinion that it was appropriate that the relief sought by the Appellant be granted.
21The first hearing day concluded.
22However, upon resumption of the hearing on December 9, 2022, the underlying legislative landscape had changed utterly.
23This change was documented in this panel's Interim Decision issued subsequent to the December 9th hearing session.
24Put summarily, Bill 23 as introduced in the Ontario Legislature, which contained a number of amendments to the Planning Act, was passed and various of those amendments were declared to come into force on Royal Assent, which took place on November 28, 2022. One of those amendments (to Section 35.1) which came into force on November 28th concerned the matter of ancillary dwelling units and had the effect of prohibiting municipal councils from passing by-laws which prohibit such units on urban residential lots. That amendment impinged directly on the matter which was before the Tribunal in this appeal.
25Unfortunately, counsel for the Appellant was not able at that time to get clear direction from City staff on how this would affect his client's building permit application and whether the relief requested of the Committee continued to be necessary.
26As a result, the Parties, in the interest of avoiding additional hearing time and associated cost, requested that the hearing be adjourned until there was clarity on the issue.
27The Tribunal acquiesced in that request and adjourned the hearing sine die, with direction to the Parties to advise the Tribunal when there was clarity on the zoning issue in light of this development.
ISSUES AND ANALYSIS
28On March 1, 2023, the Tribunal received an email communication from counsel for the Appellant to advise that the issue has resolved in that the City has now issued to the Appellant a clear Zoning Certificate for the proposed laneway suite.
29As such, the variance relief applied for is no longer necessary.
30Counsel for the Appellant requested that the Tribunal treat the appeal as withdrawn. Consent to this request was provided by counsel for the ABC Residents Association.
CONCLUSION
31In light of the legislative developments and the decision of City staff to now issue a Zoning Certificate for the proposal, this appeal has indeed become moot and it is appropriate to accede to the request of counsel to allow it to be withdrawn.
DECISION AND ORDER
32The Tribunal hereby ORDERS that the request by the Appellant to withdraw this appeal is allowed. The Tribunal's file will thus now be closed.
G. Swinkin
Panel Member