Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-04-03
23 185787 S53 20 TLAB,
23 185788 S45 20 TLAB,
23 185789 S45 20 TLAB
Rahman (Re), 2024 ONTLAB 208
DECISION AND ORDER
Issuance Date:
April 3, 2024
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):
M. RAHMAN
Applicant(s):
P. JARUCZIK
Property Address:
151 MAYBOURNE AVE
COA File No.:
23 101223 ESC 20 CO (B0001/23SC),
23 101231 ESC 20 MV (A0015/23SC),
23 101232 ESC 20 MV (A0016/23SC)
TLAB Case File No.:
23 185787 S53 20 TLAB,
23 185788 S45 20 TLAB,
23 185789 S45 20 TLAB
Hearing Date(s):
December 11, 2023, and December 18, 2023
Decision Delivered By:
TLAB Panel Member S. Makuch
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
P. JARUCZIK
Appellant
M. RAHMAN
M. MAZIERSKI
Participant
G. PANAGOPOULOS
Participant
K. H. SUNG
Participant
L. I. SUK-CHING
Participant
C. G. LICATA
Participant
N. MICHAEL F
Participant
D. K. SARMA
Participant
A. HOSSAIN
Participant
S. MAKOL
Participant
T. BRYSON
Participant
L. SANDERS
Expert Witness
J. BENCZKOWSKI
INTRODUCTION AND CONTEXT
1This is an appeal from decisions of the Committee of Adjustment to approve a consent to create two under sized lots and variances to construct a dwelling on each lot. The variances originally sought were as follows:
Exception RD 169.(C), By-law 569-2013 The minimum required building setback from a side lot line is 0.9 m. The proposed side yard setback is 0.42m.
Chapter 10.20.30.10.(1)(A), By-law 569-2013 The minimum required lot area is 371 m2. The proposed lot area is 249.61 m2.
Chapter 10.20.30.20.(1)(A), By-law 569-2013 The minimum required lot frontage is 12 m. The proposed lot frontage is 7.62 m.
Chapter 10.20.30.40.(1)(A), By-law 569-2013 The maximum required lot coverage is 33% of the lot area. The proposed lot coverage is 47.5 % of the lot area.
Chapter 10.40.40.10, By-law 569-2013 The maximum permitted height of main walls is 7 m. The proposed main wall height is 7.79m.
Chapter 10.20.40.10.(4)(A), By-law 569-2013 The maximum permitted height of a building is 7.2 m. The proposed building height is 8.24 m.
Chapter 10.20.40.50.(1)(B), By-law 569-2013 The maximum permitted area of a platform is 4 m2. The proposed balcony is 5.06 m2.
2On December 11, 2023, I issued an Interim Decision and Order to allow the proponent to submit a revised set of plans as the plans submitted on the morning of the first hearing day lacked key details and it was unclear which plans were to be the subject of the hearing.
3The proponents were given time to revise the application to: increase the setbacks to 0.6m; to remove the platform entirely; and to reduce the lot coverage to 40.3%. It was also asserted that the height variance would no longer be required as a flat roof was to be constructed.
4Because of the minor nature of the revisions no new notice is required.
5Three witnesses gave evidence. One witness, Jonathan Benczkowski, was qualified as a land use planner and gave evidence in support of the application. Two other witnesses, Mr. Sanders and Mr. Makol, were participants in opposition who owned property in the area and also spoke for other residents.
The City did not appear at the hearing but conditions respecting consent, engineering and public works and forestry matters were requested if the applications were approved.
THE LEGISLATIVE AND POLICY FRAMEWORK
6Provincial 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’).
7Consent – 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).
8Variance – 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
9Mr. Benczkowski’s evidence is set out in his witness statement dated December 11, 2023, and described as Appellants Disclosure (Exhibit 1). That witness submission purports to set out in detail how the consents and variances meet all the requirements of the Planning Act and conform with all applicable Provincial Policy. The main issues raised by the opponents in the hearing respected the lot frontage and lot area in that both were too small and out of keeping with the other lots in the area and thus would have a negative impact on the area. Mr. Benczkowski pointed out that there are lots of similar size and frontage in the neighbourhood. Concerns were also raised that the proposed dwellings were too large and that as a result they would not fit in the area. Mr. Benczkowski’s evidence was that there was redevelopment occurring in the area and that there are buildings of a similar size as proposed. The participant’s evidence demonstrated that a proposal of similar size had been rejected by TLAB, although this appeared to be as a result a failure to present evidence. There was no significant evidence that any physical adverse impact would result from the proposal. Not all variance changes were addressed in detail in the witness statement. For example, the exact change in wall height was not addressed.
ISSUES AND ANALYSIS
10The fundamental issue in the hearing was whether the proposed lot frontage, size and coverage resulted in an over development of the two lots and thus did not respect and reinforce the character of the area as required by the official plan. Given that there are lots of a similar size and frontage and dwellings of a similar area and massing I was prepared to find that the proposed consent and variances as revised could potentially be approved as they appeared to meet the requirements of the Planning Act and the Province.
11However, upon a detailed review of the plans and witness statement submitted I am unable to do so. My earlier decision in this matter gave time for the applicants to submit revised plans which were to be the basis for the revisions set out above. Upon a careful examination of the plans filed I do not find any dated final plans to approve and to ensure that construction is substantially in accordance with them. I find plans dated 8:26:22 and May 2, 2022, but none dated 2023/12/07 or 2023/09/06 as referred to in the filing, which I assume, would be revised. I could not find such plans filed therein. The confusion continues. It is not clear to me why the revised plans directed in my Interim Decision and Order, which would have been the basis of the examiners notice and the revisions requested, do not appear to have been submitted.
CONCLUSION
12The proponent appears to have failed to meet the directive of the TLAB as required in my Interim Decision and Order. As such, I am unable to authorize the requested consent and variances since is not certain which plans should be made a condition of approval.
13Although the revised final plans do not appear to have been filed, I am prepared to provide the proponent a further opportunity to clarify their status. The hearing of this appeal is, therefore, adjourned sine die. If an additional hearing date is not requested by the proponent on or before April 30, 2024, this appeal is dismissed.
DECISION AND ORDER
14The hearing is adjourned sine die. If an additional date is not sought before April 30, 2024, the appeal is dismissed.
Stanley Makuch
Panel Member