Slight v. Murphy, 2023 ONTLAB 55

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date: 2023-03-29

21 212024 S45 13 TLAB

Slight v. Murphy, 2023 ONTLAB 55

FINAL DECISION AND ORDER

Issuance Date: March 29, 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): RYAN THOMAS SLIGHT

Applicant(s): REPLACEMENT DESIGN INC

Property Address: 9 SPRUCE ST

COA File No.: 20 233743 STE 13 MV (A0004/21TEY)

TLAB Case File No.: 21 212024 S45 13 TLAB

Hearing Date(s): Wednesday, February 08, 2023

Decision Delivered By: TLAB Panel Member S. Gopikrishna

REGISTERED PARTIES AND PARTICIPANTS:

People Type Name Representative

Appellant R.T. Slight

Applicant Replacement Design Inc

Owner / Party (TLAB) E. Murphy P. Dineen Chapnick & Associates

Expert Witness E.Calhoun

Participant R. Prior

INTRODUCTION AND CONTEXT

1Mr. Eric Murphy (the “Applicant”) is the owner of 9 Spruce Street (the “Site”), located in Ward 13 (Toronto Centre ) of the City of Toronto. He applied to the Committee of Adjustment (the “COA”) for the approval of variances to construct a two-storey laneway suite at the rear of the existing two-storey detached dwelling at the Site. The COA heard the application on September 1, 2021, and approved it in its entirety, subject to conditions.

2On September 13, 2021, Mr. Ryan Slight ( the “Appellant”), the neighbour who lives at 11 Spruce Street, appealed the decision made by the COA to the TLAB, which then scheduled a Hearing on May 30, 2022. Mr. Richard Prior, Mr. Murphy’s son-in-law, who lives at the Site, elected for Participant status. At the Hearing completed on May 30, 2022, as well as subsequent Hearings held on November 1, 2022, and February 8, 2023, the Applicant was represented by Mr. Paul Dineen, a lawyer, and Mr. Erik Calhoun, an Architect

3It is pertinent to note that the Appellant did not appear at any of the Hearings mentioned in Paragraph [2]. At the Hearing held on February 8, 2023, the Applicant submitted a Settlement document signed by themselves and the Appellant, which demonstrated that the contentious issues between the Parties had been resolved, and that the Appellant was no longer in opposition to the Applicant’s request for variances. It is also important to note that the contentious issues between the Parties had little bearing on the variances appealed to the TLAB

4The reason for adjourning the Hearing that commenced on February 9, 2023, was that the Applicants did not submit a final list of variances, which I understood to have been altered, however slightly, from the Application approved by the COA. In the interests of saving time, we agreed that the Applicants could put forward a Motion asking that the Appeal be heard by way of Writing. I asked them to submit a completed Form 7, updated Plans and Elevations reflecting the updated list of variances, with suggested conditions to be imposed if the Application were to be approved, along with the updated list of variances itself.

5On March 20, 2023, the Applicants submitted the majority of the documents referred to in Paragraph [4] above, completing the file, enabling me to make findings, and release them in the form of a Final Decision. Regrettably, the Applicants did not submit the list of conditions to be imposed, if the variances to be approved, despite an oral explanation provided to them on February 9, 2023, and a written reminder on March 13, 2023.

6The Applicants request that the following variances be approved by the TLAB. It is reiterated that they could be different from what was approved by the COA in September 2021:

The property is subject to the City-wide Zoning By-law No. 569-2013, as amended. Based on By-law No. 569-2013, the property is zoned R (d1.0) (x851).

1. (C) For a lot with a residential building and an ancillary building containing a laneway suite, the area between the ancillary building containing a laneway suite and the lot line abutting a lane, excluding a permitted driveway, must be landscaping, of which a minimum of 75 percent must be soft landscaping: (7.39 square metres). The proposed area between the area between the ancillary building containing a laneway suite and the lot line abutting a lane will be 0 percent soft landscaping (0 square metres).

[150.8.50.10(1) Landscaping Requirements for a Laneway Suite]

2. (C) The required minimum side yard setback for an ancillary building containing a laneway suite is 1.5 metres. The proposed ancillary building containing a laneway suite will be 0 metres from the west side lot line abutting the lane.

[150.8.60.20(3) Laneway Suite - Side Yard Setback ]

3. No part of an ancillary building containing a laneway suite may penetrate a 45 degree angular plane projected towards the rear lot line beginning from a height of 4.0 metres at a distance of 7.5 metres from rear main wall of the residential building on the same lot. The proposed ancillary building containing a laneway suite will penetrate the 45 degree angular plane projected towards the rear lot line beginning from a height of 4.0 metres at a distance of 7.5 metres from rear main wall of the residential building on the same lot.

[150.8.60.30(2) Angular Plane]

4. Despite regulation 150.8.60.30(2), a dormer or a vertical extension of the front main wall of an ancillary building containing a laneway suite may project into the required angular plane if it occupies no more than 30 percent of the total width of the ancillary building's front main wall: (2.14 metres). The proposed dormer or vertical extension of the front main wall of an ancillary building containing a laneway suite will be 53.42 percent of the total width of the ancillary building's front main wall: (3.86 metres).

[150.8.60.30(3) Permitted Projections into a Required Angular Plane]

5. (B) The permitted maximum height of an ancillary building containing a laneway suite is 6.0 metres if the ancillary building containing a laneway suite is located 7.5 metres or more from the residential building on the lot. The proposed height of the ancillary building containing a laneway suite is 6.44 metres.

[150.8.60.40(1) Maximum Height of a Laneway Suite]

6. A platform without main walls, together with stairs or ramps leading to the platform, may encroach into the distance separation required in regulation 150.8.60.30(1) a maximum of 1.5 metres from the front main wall of the ancillary building if the platform is no higher than 0.3 metres above the average elevation of the ground measured along the front main wall of the ancillary building. The proposed platform encroaches into the distance separation required in regulation 150.8.60.30(1) 1.5 metres from the front main wall of the ancillary building and the platform will be 0.57 metres above the average elevation of the ground measured along the front main wall of the ancillary building.

[150.8.60.60(4) Permitted Encroachments for Platforms]

7. An ancillary building or structure may be no closer than 2.5 metres from the original centreline of a lane. The proposed ancillary building or structure is 1.5 metres from the original centreline of a lane.

[10.5.60.20.(4) Ancillary Building or Structure - Setback from a Lane]

ISSUES AND ANALYSIS

7It is important to emphasize that the Applicant is not the Appellant in this Appeal. The behaviour of the neighbour, who is the Appellant in this case, is notable for their lack of engagement- besides filing the Appeal, the only document that they filed in this Proceeding lasting more than a year, is a very short email, stating that they could not attend the Hearing, scheduled for May 30, 2022.

8The fact of the onus resting with the Applicants, by virtue of the Hearing be de novo in nature, is not be interpreted to mean that the Appellant remain unseen, and unheard from, because the burden of proof does not rest with them. There is no Appeal without an Appellant; the Appellant is obligated to explain at the very least, the reasons for their opposition to an Application. It is very unfortunate that the Appellant made no palpable effort to fulfill their responsibility by submitting documents to the TLAB, and the Applicant, about the reason underlying their opposition to the Application. I find such behaviour by any Party to be less than responsible.

9The lack of what I find to be less-than-responsible behaviour on part of the Appellant is further underlined by their choosing to launch an Appeal to the TLAB, on the basis of an objection that is not directly connected to the variances before the TLAB, based on the narrative provided by the Applicants. I find that the Appellant’s approach, of using an Appeal before the TLAB, as a tool to address issues over which the TLAB has no jurisdiction, to be condemnable.

10In terms of making findings on the Appeal, it is important to note that the Appellant is no longer in opposition to the Application by virtue of the Settlement, though there are small changes to the variances. Given that the Appeal does not result in a contested Proceeding, I find that the Appeal can be heard in Writing.

11Given that the changes to the variances are minor from what was approved by the COA, and the lack of opposition to the changes on the basis of the Settlement arrived between the Applicant and the Appellant, I find that Section 45.18.1.1 of the Planning Act, which requires that new notice be given in case of changes to an Application, may be waived- in other words, I find that the Applicants do not have to provide further notice

12When the waiver of Section 45.18.1.1. of the Planning Act, is juxtaposed on the lack of any submissions, or evidence from the Appellant, I find it reasonable to dismiss the Appeal, and restore the COA decision, subject to the changes to the variances suggested by the Applicant. I specifically emphasize that there is no need to hear any other further evidence regarding the variances from the Applicant.

13The conditions to be imposed on the variances are as follows:

a) The building shall be built in substantial conformity with the Plans and Elevations, prepared by Placement Design Inc., date stamped January 26, 2023, appended to this Decision.

b) Prior to the issuance of a building permit, the applicant/owner shall comply, to the satisfaction of the Chief Engineer and Executive Director, Engineering & Construction Services, with the following:

(a) Submit revised site plan drawings to show the following along with the respective dimensions:

(i) An at grade waste storage area on private property that is at least 3 m x 1 m with a 1.5 m height, configured to allow bins to be transferred to the curbside on Spruce Street for City collection; and,

(ii) Suitable/compliant fire access route(s) for laneway suites with entrance from the Municipal Street OR laneway

c) Prior to the issuance of a building permit, the applicant apply for and obtain municipal numbering

By way of an editorial comment, I note that (b) may be satisfied through the submission of a “Fire and Waste” diagram submitted by the Applicant. However, in the absence of any commentary from the Applicant, the condition is being included in the Decision, with an abundance of caution.

14Both the variances, as well suggested conditions to be imposed should the variances be improved, as submitted by the Applicant to the TLAB, on March 20, 2023 are herewith approved. The variances, are recited in Paragraph [14] of this Decision in the Decision and Order Section. With an abundance of caution, the “Fire and Waste” diagram submitted by the Applicant, is included with the Plans and Elevations, appended to this Decision.

DECISION AND ORDER

15The Motion put forward by the Applicants on March 20,2023 to hear the Appeal respecting 9 Spruce Street, in Writing is approved.

16Section 45.18.1.1 of the Planning Act is waived for this Appeal; there is no need for the Applicants to give new Notice.

17The following variances are approved:

City-wide Zoning By-law

The property is subject to the City-wide Zoning By-law No. 569-2013, as amended. Based on By-law No. 569-2013, the property is zoned R (d1.0) (x851).

1. (C) For a lot with a residential building and an ancillary building containing a laneway suite, the area between the ancillary building containing a laneway suite and the lot line abutting a lane, excluding a permitted driveway, must be landscaping, of which a minimum of 75 percent must be soft landscaping: (7.39 square metres). The proposed area between the area between the ancillary building containing a laneway suite and the lot line abutting a lane will be 0 percent soft landscaping (0 square metres).

[150.8.50.10(1) Landscaping Requirements for a Laneway Suite]

2. (C) The required minimum side yard setback for an ancillary building containing a laneway suite is 1.5 metres. The proposed ancillary building containing a laneway suite will be 0 metres from the west side lot line abutting the lane.

[150.8.60.20(3) Laneway Suite - Side Yard Setback ]

3. No part of an ancillary building containing a laneway suite may penetrate a 45 degree angular plane projected towards the rear lot line beginning from a height of 4.0 metres at a distance of 7.5 metres from rear main wall of the residential building on the same lot. The proposed ancillary building containing a laneway suite will penetrate the 45 degree angular plane projected towards the rear lot line beginning from a height of 4.0 metres at a distance of 7.5 metres from rear main wall of the residential building on the same lot.

[150.8.60.30(2) Angular Plane]

4. Despite regulation 150.8.60.30(2), a dormer or a vertical extension of the front main wall of an ancillary building containing a laneway suite may project into the required angular plane if it occupies no more than 30 percent of the total width of the ancillary building's front main wall: (2.14 metres). The proposed dormer or vertical extension of the front main wall of an ancillary building containing a laneway suite will be 53.42 percent of the total width of the ancillary building's front main wall: (3.86 metres).

[150.8.60.30(3) Permitted Projections into a Required Angular Plane]

5. (B) The permitted maximum height of an ancillary building containing a laneway suite is 6.0 metres if the ancillary building containing a laneway suite is located 7.5 metres or more from the residential building on the lot. The proposed height of the ancillary building containing a laneway suite is 6.44 metres.

[150.8.60.40(1) Maximum Height of a Laneway Suite]

6. A platform without main walls, together with stairs or ramps leading to the platform, may encroach into the distance separation required in regulation 150.8.60.30(1) a maximum of 1.5 metres from the front main wall of the ancillary building if the platform is no higher than 0.3 metres above the average elevation of the ground measured along the front main wall of the ancillary building. The proposed platform encroaches into the distance separation required in regulation 150.8.60.30(1) 1.5 metres from the front main wall of the ancillary building and the platform will be 0.57 metres above the average elevation of the ground measured along the front main wall of the ancillary building.

[150.8.60.60(4) Permitted Encroachments for Platforms]

7. An ancillary building or structure may be no closer than 2.5 metres from the original centreline of a lane. The proposed ancillary building or structure is 1.5 metres from the original centreline of a lane.

[10.5.60.20.(4) Ancillary Building or Structure - Setback from a Lane]

18The conditions to be imposed on the variances are as follows:

a) The building shall be built in substantial conformity with the Plans and Elevations, prepared by Placement Design Inc., date stamped January 26, 2023, appended to this Decision.

b) Prior to the issuance of a building permit, the applicant/owner shall comply, to the satisfaction of the Chief Engineer and Executive Director, Engineering & Construction Services, with the following:

(a) Submit revised site plan drawings to show the following along with the respective dimensions:

(i) An at grade waste storage area on private property that is at least 3 m x 1 m with a 1.5 m height, configured to allow bins to be transferred to the curbside on Spruce Street for City collection; and,

(ii) Suitable/compliant fire access route(s) for laneway suites with entrance from the Municipal Street OR laneway.

c) Prior to the issuance of a building permit, the applicant apply for and obtain municipal numbering

19No other variances, other than the ones recited in Paragraph [17] above, are approved.

So orders the Toronto Local Appeal Body

S. Gopikrishna Panel Member