Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date:

2023-05-10

24 101200 S45 09 TLAB

Vu (Re), 2024 ONTLAB 226

DECISION AND ORDER

Issuance Date:

May 10, 2024

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):

T. N. Vu

Applicant(s):

M. Ribau

Property Address:

297 Delaware Ave

COA File No.:

23 181342 STE 09 MV (A0664/23TEY)

TLAB Case File No.:

24 101200 S45 09 TLAB

Hearing Date(s):

April 25, 2024

Deadline Date for Closing Submissions/Undertakings:

April 25, 2024

Decision Delivered By:

TLAB Panel Member: R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner

M. S. Nguyen

Primary Owner/Appellant

T. N. Vu

Applicant

M. Ribau

Participant

M. Friesner

Participant

C. Harte

Participant

M. Aitken

INTRODUCTION AND CONTEXT

1This appeal raises a number of issues:

a) How should the Toronto Local Appeal Body (the "TLAB") deal with documents not filed in accordance with the TLAB's Rules of Practice and Procedure (the "Rules")?

b) Have the Owners/Appellants met the required planning tests without calling evidence from a land use planner?

c) How should the TLAB reconcile competing objectives, such as reducing the amount of stormwater flowing into City sewers, and increasing the number of housing units?

2Following is a chronology setting out the events which resulted in these issues arising.

3In January 2023, the Owners sought approval from the Committee of Adjustment (the "C of A") to alter an existing semi-detached dwelling (emphasis added) at 297 Delaware Ave. (the "Site"). The owners requested variances to the maximum permitted floor space index and building depth.

4On April 5, 2023, the C of A approved the requested variances, subject to conditions. The conditions required the altered dwelling to be constructed substantially in accordance with the elevation plans stamped received by the C of A on January 24, 2023 (the "Jan. 2023 Plans").

5According to the Jan. 2023 Plans, the front walkout was to extend westerly, perpendicular to the front wall of the existing dwelling, along the south side of the existing dwelling, with soft landscaping to the north of the walkout.

6On October 27, 2023, the Owners obtained a revised Zoning Notice stating that the proposed use was a duplex (emphasis added), which would require three (3) variances from Zoning By-law 569-2013, as amended by By-law 474-2023 (the "ZBL").

7On October 30, 2023, the C of A received revised plans showing the front walkout running northerly parallel to a portion of the front wall of the existing dwelling, with landscaping along the southern edge of the Site (the "Revised Plans").

8On Dec. 13, 2023, the C of A refused an application for further variances to allow the existing dwelling to be converted into a duplex dwelling (for two residential dwelling units), to construct a rear third story addition (to convert a portion of the rear third storey terrace into habitable space) and a front basement walkout entrance for the dwelling unit within the basement (the "Dec. 2023 C of A Decision").

9According to the Dec. 2023 C of A Decision, the following requested variances to Zoning By-law 569-2013 (the "ZBL") were refused:

1. Front walkout basement stairs, distance from front (west) lot line:

Requested -.3 metres; Required .6 m

2. Landscaping as % of the front yard:

Requested - 18%; Required - 50% (11.5 m2)

3. Soft landscaping as % of front yard:

Requested: - 18%; Required - 75% (17.25 m2)

(Collectively, the "Appealed Variances")

10On January 4, 2024, the Owners submitted a Notice of Appeal with respect to the Appealed Variances to the TLAB.

11On January 23, 2024, a Notice of Hearing was issued and received by the Parties. The Notice stated that a Witness Statement was due no later than March 25, 2024, and a Response to Witness Statement was due no later than April 8, 2024.

12On March 25, 2024, two (2) communications from the Owners/Appellants – titled Appellant Document Disclosure and TLAB letter - were received by the TLAB. The Document Disclosure included a Report and photos prepared by Matthew Ribau in support of the Appealed Variances.

13On March 25, 2024, Participant Witness Statements were received from Ms. Harte, Ms. Aitken and Mr. Friesner in opposition to the Appealed Variances.

14On April 8, 2024, a reply from Participant Friesner in response to the March 25, 2024, communications from the Owners was received by the TLAB.

15On April 9, 2024, a Witness Statement from the Owners was received by the TLAB.

16On April 19, 2024, Participant Friesner responded to the Witness Statement from the Owners.

17On April 25, 2024, the Owners attempted to file additional material with the TLAB just prior to the oral Hearing (the "Additional Material").

18I visited the Site and neighbourhood, and heard the appeal by remote (electronic) hearing on April 25, 2024.

THE LEGISLATIVE AND POLICY FRAMEWORK

19Provincial Interest - S. 2

A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.

20Provincial 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 (Growth Plan) for the subject area.

21Variance – 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

22I asked the Owners if they intended to call Mr. Matthew Ribau, an architectural technologist, who prepared a Report included in the Document Disclosure which they filed. The Owners said they would not call Mr. Ribau, but would provide oral evidence themselves.

23The Primary Owner, Ms. Thien Ngan ("Nancy") Vu, said that her husband and co-owner, Mr. Minh Son ("Sean") Nguyen, was knowledgeable about the variances.

24I asked Mr. Sean Nguyen if he was qualified as a land use planner or in a related field. He said he was not, although he had qualifications in the field of finance.

25Mr. Nguyen said that many houses on the same street had below-grade walk-in entrances: "many houses had the same structure".

26Mr. Nguyen said that the walkway and stair railing would not affect the neighbours.

27Mr. Nguyen said that there was plenty of area for soft landscaping on the City owned land in front of his lot line. He estimated that the dimensions of the City land (public right-of-way between the sidewalk and the property line) was approximately 15 feet (4.6 m) wide by 12 (3.7 m) in depth, for an area of 180 square feet (16.7 m2). The exact dimensions are shown on a copy of a survey of the Site included in the Supporting Documentation for C of A Application.

28In response to a question from me, the Owners said that they adopted the evidence of Mr. Ribau, but were not familiar with the Planning Act (the Act")

29I allowed Mr. Friesner to ask clarifying questions of Mr. Nguyen.

30Mr. Friesner asked how the reduction in soft landscaping would affect drainage from the Site. Mr. Nguyen said many houses on the street had no soft landscaping on their property, and any excess water would drain under the public right of way. Mr. Nguyen repeated that the walkway and stair railing would not affect the neighbours.

31Mr. Friesner asked why the Owners wanted to change the previously approved plans for the location of the front walkout stairs. Mr. Nguyen said it was his idea that the location of the stairs in the Revised Plans would protect the existing front porch and maintain a better view from his living room window.

32I then asked Mr. Friesner to provide an oral statement.

33Mr. Friesner stated that he owns and occupies a house at 290 Delaware, across the street and to the south of the Site.

34Mr. Friesner said that twelve (12) households expressed opposition to the Requested Variances. He also stated that Toronto Building had issued a Stop Work Order with respect to construction which was not done in accordance with the Jan. 2023 Plans.

35According to Mr. Friesner, the Owners did not follow the process set out the TLAB's Rules of Practice and Procedure (the "Rules"). The Notice of Hearing required the Owners to provide a Witness Statement no later than March 25, 2024. The Owners provided documents without the proper Forms on March 25, 2024. They did not provide a document titled "Witness Statement" until April 9, 2024. The Owners submitted material in a haphazard fashion, and it was hard to follow.

36Mr. Friesner stated that by changing the application from altering an existing semi-detached dwelling to converting it to a duplex dwelling (for two residential dwelling units), the Owners were engaged in a manipulation of the process.

37Mr. Friesner said that the purpose of the soft landscaping requirement in the ZBL was to require drainage on private property, not on public property as proposed by the Owners, in order to reduce run off to the municipal sewer system. He noted that the amount of soft landscaping was reduced from the January 2023 Site Plan (Exhibit 1) to the Revised Site Plan (Exhibit 2).

38Mr. Friesner stated that the C of A had requested the Owners to talk to the Participants prior to the December 2023 C of A hearing, but the Owners had refused to do so.

39Mr. Nguyen questioned Mr. Friesner. He asked if Mr. Friesner used a sump pump at his home. Mr. Friesner agreed that he used a sump pump at his home.

40Mr. Nguyen asked Mr. Friesner if 75% of his front yard was soft landscaping. Mr. Friesner said it was not, but that was the existing condition when he purchased his home. He distinguished the amount of soft landscaping at his house, which was an existing condition, from the Owners, who wanted to further reduce the amount of soft landscaping they were providing.

41I asked Mr. Friesner if there were other houses on the east side of Delaware Ave. on the block where 297 was located, and on the west side where his house was located, which had less landscaping and soft landscaping than the ZBL required. Mr. Friesner said that 293-295 Delaware, immediately south of the Site, had more landscaping. However, he agreed that other houses on Delaware had less landscaping as a result of existing conditions.

42Ms. Harte then provided an oral statement. She lives at 293-295 Delaware, immediately south of the Site.

43Ms. Harte agreed with the statement of Mr. Friesner. She was concerned about the loss of soft landscaping, and also by the illegal construction on the third floor at the Site, which is higher than the house where she lives.

ISSUES AND ANALYSIS

a) Documents not filed in accordance with the Rules

44The first issue is to be considered is how to deal with documents provided by the Owners which were not filed in accordance with the Rules.

45I agree with Mr. Friesner that the Owners did not follow the Rules with respect to attaching proper Forms and meeting submission timelines. The communications of March 25, 2024, were not accompanied by the proper Forms; and the Witness Statement was submitted several weeks late.

46Ms. Nancy Vu also attempted to introduce the Additional Material on April 25, 2024, immediately prior to the oral Hearing. Ms. Vu described the material as "provided previously", but not appearing on the TLAB website due to technical difficulties. I accepted her explanation, and allowed the Additional Material to be introduced at the Hearing.

47However, TLAB staff advised me, immediately following the completion of the Hearing, that it was new material, not previously filed with the TLAB or seen by the Participants.

48I have the discretion under Rule 2.12 to grant all necessary exceptions to the Rules to enable me to effectively and completely adjudicate matters before me in a just, expeditious and cost-effective manner. I also have discretion under Rule 4.4 to reduce the time limit for filing material.

49In addition to its Rules, the TLAB also relies on Practice Directions, of which the TLAB currently has a total of seven (7). Practice Directions outline processes and procedures that provide a 'roadmap' for the professions and the public as to how to approach and deal with a particular subject matter.

50Practice Direction No. 7 provides a protocol for the consideration of 'interlocutory relief' for filing of documents past the requisite due dates required by the Tribunal.

51I will allow the material submitted by the Owners on March 25 and April 9, 2024. Participant Friesner filed replies to the material submitted on both dates, and the Participants were not prejudiced by the manner or timing of those submissions. However, I will disregard the Additional Material which Ms. Vu attempted to introduce on April 25, 2024.

52If Ms. Vu's statement that "the Additional Material was provided previously" was an honest mistake, I will nevertheless not consider it in making my Decision, since the Participants did not have an adequate opportunity to review it, and could be prejudiced by it.

53If Ms. Vu knowingly attempted to deceive the TLAB with respect to the previous submission of the Additional Material, it would be a serious breach of the Rules, and a challenge to the integrity of this Appeal. If I had made that determination during the Hearing, I may have dismissed the appeal without a Hearing. However, since the discrepancy was only confirmed following the Hearing, I cannot determine whether her misrepresentation was accidental or intentional.

54Consequently, I will continue to consider this Appeal based on the Hearing, without the Additional Material.

55I note that the Participants followed the Rules with respect to the submission of their documents, so no question arises with respect to the filing of documents submitted by the Participants.

b) Must the Owners call evidence from a Land Use Planner to meet the Planning Tests?

56The material provided by the Owners includes a Letter Report and photos prepared by Mr. Matthew Ribau, an architectural technologist with Perspective Views Inc. The letter portion of his report states that the requested variances:

"reflect existing prevailing conditions that are indicative of the historical development pattern of Toronto's urban neighbourhoods . . . the current front yard landscape area does not comply with the requirement of having 50% of the front yard to be landscaped area. It is not out of character for this neighbourhood to have front yard landscaped areas that range from 15-25%, given the older character of the neighbourhood and the large municipal owned front yards."¹

57Mr. Ribau opined that the Requested Variances, individually and cumulatively, meet the four tests set out in S. 45 (1) of the Act.²

58Mr. Ribau did not provide the usual neighbourhood map showing similar variances in the neighbourhood. However, he submitted photos showing eight (8) houses on Delaware Avenue which have below-grade walkouts. Each of the walkouts are located in front of houses which appear to have a considerable amount of landscaped open space on the landscaped municipal right of way or boulevard between the walkouts and the sidewalk.³

59As set out above, the Owners did not call Mr. Ribau at the Hearing to provide oral evidence.

60Mr. Friesner agreed with Mr. Nguyen that there were other houses on Delaware with walkouts and landscape arrangements similar to those requested by the Owners.

61Two maps showing the location of houses on the Site and surrounding lots are contained in the supporting documentation on the Application Information Centre for 297 Delaware Ave (the "Location Maps") The Location Maps show that a majority of the houses on Delaware and adjacent streets such as Concord, Ossington and Dovercourt are similarly located very close to their respective lot lines.

62On my visit to the Site, I confirmed that it has a concrete porch which occupies most of the front yard. Consequently, the amount of front landscaping (including soft landscaping) is substantially less than the 50% (75% of soft landscaping) shown as required by the ZBL in the Dec. 2023 C of A Decision. Consequently, the variance for landscaping and soft landscaping requested is not markedly less than the amount actually provided under existing conditions.

63On my visit to other lots in the neighbourhood, I saw that a majority of the houses on portions of Delaware and Concord Ave., a street to the east of Delaware, are located close to their private lot lines, but have a substantial area of open space in front of those lines, which are technically part of the municipally owned street allowance. Although the open space is technically owned by the municipality, the City allows the space to be soft landscaped by private owners without a permit.⁴

64I also saw that there are a significant number of basement walkouts at the front of houses on Delaware and Concord.

65There is no rule that an Appellant must engage and bring to a Hearing a qualified land use planner. Expert witnesses before the TLAB are an expectation but not a necessity.

66Expert land use planners are a common feature at the TLAB hearings, but there is no statute, rule or policy which necessitates their presence or otherwise renders an appeal untenable in their absence.⁵

67Mr. Ribau was neither proffered by the Appellant nor qualified by the TLAB as an expert witness in the area of land use planning at the Hearing. However, he considered and addressed the relevant tests set out in S. 45 (1) of the Planning Act, and the relevant provisions of the Official Plan and ZBL.

68It would have been preferable to have Mr. Ribau appear at the TLAB Hearing to give oral evidence. However, given that there were no other Parties with the right to cross examine witnesses, his absence is not determinative.

69I have considered evidence from Mr. Nguyen, Mr. Friesner, the survey and the Location Maps, as well as the Report and photos provided by Mr. Ribau. This evidence, in its totality, in conjunction with my observations on my visit to the Site and neighbouring streets, has persuaded me that that the Appealed Variances meet the tests required under the Act.

70I find that the reduction in setback of the front walkup from the property line of .3 m is minor, particularly since there is approximately 4 m of landscaped open space between the walkup and the sidewalk, which is the prevailing condition in this neighbourhood.

71I also find that the reduction of front landscaping, including the reduction of soft landscaping, is consistent with the prevailing condition on the Site prior to requesting the variances, and is also consistent with the prevailing condition in the neighbourhood.

c) Reconciling Competing Objectives

72Mr. Friesner is correct when he states that the City wants private residents to allow stormwater to drain on their property, and the soft landscaping requirement of the ZBL is intended to further that objective.

73As noted in the Zoning Notice, this application is subject to Zoning By-law 569-2013 as amended. (the "ZBL"). On May 12, 2023, City Council passed By-law 474-2023 to update permissions and performance standards for duplexes and secondary suites (the "Multiplex By-law").

74The TLAB shall have regard to matters of provincial interest, including:

the efficient use of sewage and water systems; and

the adequate provision of a full range of housing, including affordable housing.⁶

75It must also maintain the general intent and purpose of the Official Plan.

Policy 3.2.1.2 of the OP declares that:

"The existing stock of housing will be maintained, improved and replenished. . . . New housing supply will be encouraged through intensification and infill that is consistent with this Plan.

76The redevelopment of this Site as proposed by the minor variances before the TLAB, is consistent with the provincial interest and housing goals of OP. I find that the housing goals take precedence over a relatively minor exception to the natural environment objective of reducing stormwater run-off to the municipal sewer.

77I commend Mr. Friesner and the other Participants for their active and articulate presentations, written and oral, on this appeal.

78However, some of the issues raised by the Participants are beyond the jurisdiction of the TLAB, in whole or in part.

79Control of rainwater runoff is a factor in the purpose of the ZBL provision requiring soft landscaping. However, detailed grade elevations are required by Toronto Building prior to issuing a Building Permit for residential basement entrances and additions.

80Mr. Friesner questioned the rationale for changing the configuration of the walkout. The TLAB is concerned with the change in the distance that the walkout is located from the front lot line, rather than its configuration.

81Participants Friesner and Harte were critical of the Owners for illegal construction resulting in a stop work order, and for "manipulating" the process by seeking approval for Revised Plans for a duplex, with more flexible performance standards.

82I understand their surprise and disappointment when the Owners chose to apply under a new and different definition, resulting in different variances. However, the Owners have the right to take advantage of the Multiplex By-law, which encourages secondary suites, and to choose the most favourable way to make an application for variances under the ZBL, as it evolves.

83It is the responsibility of Toronto Building, not TLAB, to determine when construction is illegal, and whether it might be legalized if by-laws are amended, or new variances are requested.

CONCLUSION

84I have concluded that the Appeal should be allowed, and the variances refused by the Dec. 2023 C of A Decision be authorized, subject to a condition listed herein.

DECISION AND ORDER

85The Toronto Local Appeal Body ORDERS THAT:

the Appeal by the Owners/Appellants be allowed; and

the variances listed in Appendix A, herein, be authorized.

86The Decision is subject to the following condition:

That the altered dwelling be constructed substantially in accordance with the Site Plan and Elevations prepared by DINH Design, dated June 27, 2023, received by the Toronto Local Appeal Body on October 30, 2023, and attached as Appendix B to this Decision and Order. Any other variance or variances that may appear as required on these plans but that are not listed in the written Decision and Order are NOT authorized.

R. Kanter

Panel Member

Appendix A

AUTHORIZED VARIANCES TO THE ZONING BY-LAW

1. Chapter 10.5.40.60.(3)(A)(iii), By-law 569-2013

Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6 m.

The front basement walkout stairs will be located 0.3 m from the front (west) lot line.

2. Chapter 10.5.50.10.(1)(B), By-law 569-2013

A minimum of 50% (11.5 m²) of the front yard is required to be landscaping.

In this case, 18% (4.1 m²) of the front yard will be maintained as landscaping.

3. Chapter 10.5.50.10.(1)(D), By-law 569-2013

A minimum of 75% (17.25 m²) of the front yard must be in the form of soft landscaping.

In this case, 18% (4.1 m²) of the front yard will be in the form of soft landscaping.

Appendix B

Footnotes

1. 1Perspective Views Report, Pages 2 & 3
2. 2Supra, P. 5
3. 3Supra, pages 6-13
4. 4Streets & Sidewalks, Use of - By-law § 743-21. The provisions of this Chapter requiring municipal consent for street work shall not apply to street work . . . in the boulevard section of a street that is required to allow owners and occupiers of land adjoining a street to plant and maintain soft landscaping.
5. 5See Toronto (City), Long Branch Neighbourhood Association v. Singh, 2024 ONTLAB 178 at par. 99, citing North End Neighbours v. Hamilton (City)2017
6. 6S. 2 (f) and (j) of the Planning Act