Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-05-17
22 222332 S45 02 TLAB
Romano v. Toronto (City), 2023 ONTLAB 89
DECISION AND ORDER
Issuance Date:
May 17, 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):
Bernie Romano
Applicant(s):
2LS Design Inc.
Property Address:
102 Shaver Ave. N
COA File No.:
21 106908 WET 02 MV
(A0040/21EYK)
TLAB Case File No.:
22 222332 S45 02 TLAB
Hearing Date(s):
Tuesday, May 9, 2023
Decision Delivered By:
TLAB Vice-Chair A. Bassios
Registered Parties:
Owner
C. Romano
Primary Owner/Appellant
B. Romano
Applicant
2LS Design Inc.
Party’s Legal Rep
A. Ward (City of Toronto)
Participant
B.D. Isard
Participant
D.B. Wade
Participant
W.Van Slyke
Participant
S.S. Kawa
Participant
K.D. Luckevich
Participant
K.M. Stafford
Participant
Z. Kawa
Party (TLAB)
J. Muc
Party (TLAB)
J.R. Mackay
Party (TLAB)
T. Gomez
Party (TLAB)
C.M. Poulo
Party (TLAB)
T. Farina-Poulo
Party (TLAB)
I. Cunha
Party (TLAB)
G. Pennington
Party (TLAB)
R. Cholewski
Party (TLAB)
M. Ye
Party (TLAB)
Planning & Administrative Tribunal
Party (TLAB)
City of Toronto
Witness
B, O’Neill (2LS Design Inc.)
INTRODUCTION AND CONTEXT
1This is an appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for variances for the property known as 102 Shaver Ave N (subject property).
2The purpose of the application is to construct a new detached development with an attached garage.
3The subject property is located in the Islington neighbourhood of the former City of Etobicoke.
4The Applicant/ Appellant, Mr. Romano, reached a settlement with the City of Toronto that altered the requested list of variances.
5Legal counsel for the City, Mr. Ward, confirmed the City’s acceptance of the revised design and requested two standard conditions be imposed if the application was to be approved.
6An extensive list of persons elected Party and Participant status and were not party to the settlement between the City and the Appellant. I was advised that Mr. Poulo would be the spokesperson on behalf of the neighbours in opposition, which was very helpful and greatly facilitated the proceedings.
7Mr. Romano is a lawyer who represented himself in this matter. To assist him in presenting his case before the TLAB, he retained Mr. O’Neill, who is a designer specializing in residential design.
8I was asked by Mr. Romano to qualify Mr. O’Neill as an expert witness in order to give expert evidence regarding the statutory planning tests. I did not do so as Mr. O’Neill does not hold any city planning qualifications nor does he have employment experience that would lead me to qualify him as an expert in planning matters. I acknowledged Mr. O’Neill’s expertise in the area of architectural design.
9I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation for the hearing of their evidence.
10I reminded the Parties that this was a hearing “de novo” under s. 45(18) of the Planning Act, (meaning that the entire application that was before the COA is being considered anew) and that the burden rests on the applicant to satisfy the TLAB that the statutory tests are met.
THE LEGISLATIVE AND POLICY FRAMEWORK
11Provincial 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’).
12Variance – 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
13Mr. Romano provided evidence on his own behalf.
14Mr. Romano described his family circumstances and expressed his desire to create a home that was wheelchair accessible.
15He advised that he had continued to work with the City subsequent to the COA decision and emphasized that the City has given its consent and supports the design.
16Mr. Ward confirmed that the City does not have objections to the approval of the revised variances, subject to the imposition of two standard conditions; that a permit to remove or injure trees be obtained, and that construction be substantially in accordance with the revised plans.
17Mr. O’Neill gave evidence regarding the application and its appropriateness.
18Mr. O'Neill noted the desire to make the home accessible. He noted the desire to locate the garage to the rear of the property, accessing Northampton Dr, which reflects the existing configuration on the property and makes ingress and egress less problematic.
19Mr. O’Neill’s testimony reflected his Witness Statement which was entered into the record as Exhibit 2. His evidence was organized under separate bullet points for each variance with a paragraph addressing each of the four tests.
20Mr. Poulo, on behalf of the opposing Parties, expressed the neighbours’ concerns at the “excessive collective variances”, which he said had only been seen on the properties directly on Bloor St (a major street).
21Mr. Poulo said that the neighbourhood was most concerned with the proposed height and massing. He noted that the examples that the Applicant cited involve one or two variances, but that none of them had all the variances combined that are being requested in this case.
22He acknowledged that the current application is much improved from the original proposal. He referenced a list of additional proposed conditions contained in his Witness Statement (Exhibit 5) that he described as a “with prejudice offer”.
ISSUES AND ANALYSIS
23Mr. O’Neill’s evidence in support of the application did not provide helpful context for considering the application. Some key omissions in the evidence provided are as follows:
There was no identification or discussion regarding the Official Plan designation of the property.
I was not provided with a revised list of requested variances.
The general intent and purpose of the Official Plan with respect to development and redevelopment within the Neighbourhoods (or any) designation was not identified.
There was little to no reference to Official Plan policy specifically related to Development Criteria in Neighbourhoods (Chapter 4.1).
Although some examples of comparable variances were cited, a neighbourhood study area and an immediate context were not identified in accordance with OP Policy 4.1.5.
Although some examples of comparable variances were cited, I was not provided with a substantiated description of the prevailing character of the neighbourhood or the prevailing massing, scale, density, heights or other characteristics in the neighbourhood. The proposal as a whole was not considered in this policy context; the evidence was provided with reference only to each individual variance requested.
The revised plans were entered into the record as part of Exhibit 3 (Document Disclosure), but were not referenced or explained during the hearing.
The general intent and purpose of each individual variance provision was not identified and, in many instances, the justification for the variance did not directly relate to the variance requested.
I understood that a Site Specific Exception in the Zoning By-law applies to this property, but the applicability of this exception, and the applicability of the former City of Etobicoke Zoning were not overtly identified and discussed.
24I would describe Mr. O’Neill’s testimony as opinion focused on design features, and a very general and high level justification for each variance that often had little direct connection to the variance requested. Overall, the evidence provided lacked the detail and substantiation that is necessary to meet the burden of evidence- required to meet the four tests of s. 45(1) of the Planning Act.
25Of note to me was Mr. O’Neill’s misunderstanding of the test for “Minor” as explained in response to Mr. Poulo’s question during cross-examination. Mr. O’Neill’s answer reflected a perception that the test of Minor was premised on a quantitative degree of difference. This is not the held understanding of the legislative test: the test for Minor is that there be no undue adverse impact of a planning nature.
26In order to be successful in an appeal before the TLAB, it is not necessary that a qualified Planner be retained. Persons unfamiliar with the land use planning process and the procedures of the TLAB can and have been successful in achieving the outcomes they sought. Success, however, does require a researched understanding of the expectations and the underlying legislative framework, the policies of the Official Plan and the intent behind the provisions of the By-law.
27Mr. Romano emphasized that the City had no objection to the revised plans and suggested that this endorsement by the City should be respected. In his opinion, people should be able to rely on the agreement of the City to get approvals. I agree that the concurrence of the City and the settlement achieved with the City is a factor to be heavily weighted. Nonetheless, the City’s position is not a proxy for the approval of the TLAB.
28I asked Mr. Romano if he had any response to the suggestion of Mr. Poulo, on behalf of the other Parties, of a list of conditions that Mr. Poulo described as a “with prejudice offer to settle”. He did not.
29Despite the settlement with the City, this matter was heard as a contested Hearing as a number of Parties remained opposed to the application. The burden remains on the Applicant to satisfy the TLAB that the statutory tests have been met.
CONCLUSION
30I find that the evidence provided in support of the application for variances is insufficient for me to be satisfied that the four tests have been met.
DECISION AND ORDER
31The 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 Member