Tsialtas (Re), 2024 ONTLAB 236

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-06-24

24 117243 S45 09 TLAB

Tsialtas (Re), 2024 ONTLAB 236

Issuance Date:

June 24, 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):

Applicant(s):

Property Address:

40 GLENHURST AVE

COA File No.:

23 203796 STE 09 MV (A1021/23TEY)

TLAB Case File No.:

24 117243 S45 09 TLAB

Hearing Date(s):

June 11, 2024

Deadline Date for Closing Submissions/Undertakings:

June 25, 2024

Documents were submitted on June 17, 2024

Decision Delivered By:

TLAB Chair D. LOMBARDI

People Type

First Initial. Last Name

Representative

Owner

M. Lee

Applicant

A. Lacalamita

Appellant/ Primary Owner

A.Tsialtas

A. Lacalamita

INTRODUCTION AND CONTEXT

1This is an appeal by Athanasios Tsialtas (Appellant), of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for eleven (11) variances in total for the property municipally known as 40 Glenhurst Avenue (subject property).

2The purpose of the application is to permit Mr. Tsialtas to construct a new, two-storey ancillary building (garden suite with a cantilevered second storey) in the rear yard. In order to do so, the Appellant intends to demolish the existing one-storey, detached garage situated in the rear yard.

3The subject property is located on the north side of Glenhurst Avenue, east of Glenholme Avenue and west of Oakwood Avenue, in the former City of York

4It is designated Neighbourhoods in the City Official Plan (OP) and zoned RM (f12.0; u2); d0.8)(x252) under Zoning By-law 569-2013.

5REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:

Chapter 150.7.50.10.(1)(A)(i), By-law 569-2013

For a lot with a residential building and an ancillary building containing a garden suite with a lot frontage of greater than 6 m, a minimum of 50% (46.94 m²) of the area between all rear main walls of the residential building on the lot and the rear lot line must be maintained as soft landscaping.

In this case, 15% (13.94 m²) of the area between all rear main walls of the residential building on the lot and the rear lot line will be maintained as soft landscaping.

Chapter 150.7.60.20.(2)(B), By-law 569-2013

The minimum required rear yard setback for an ancillary building containing a garden suite is 1.5 m.

The ancillary building containing a garden suite will be located 0.4 m from the rear (north) lot line.

Chapter 150.7.60.20.(5)(B), By-law 569-2013

The minimum required side yard setback for an ancillary building containing a garden suite is 10% (0.62 m) of the lot frontage.

The ancillary building containing a garden suite will be located 0.1 m from the side (east) lot line and 0.32 m from the side (west) lot line.

Chapter 150.7.60.30.(1)(A), By-law 569-2013

An ancillary building containing a garden suite must be no less than 7.5 m from a residential building on the same lot if the height of the ancillary building is greater than 4 m.

The ancillary building containing a garden suite will be located 6.59 m from the residential building on the same lot, and will have a height of 6 m.

Chapter 150.7.60.30.(2)(A)(i), By-law 569-2013

No part of an ancillary building containing a garden suite may penetrate a 45 degree angular plane projected towards the rear lot line, beginning from a height of 4 m at a distance of 7.5 m from the rear main wall of the residential building on the same lot.

The ancillary building containing a garden suite will penetrate the 45 degree angular plane projected towards the rear (north) lot line, beginning from a height of 4 m at a distance of 7.5 m from the rear main wall of the residential building on the same lot.

Chapter 150.7.60.30.(2)(A)(ii), By-law 569-2013

No part of an ancillary building containing a garden suite may penetrate a 45 degree angular plane projected towards the front lot line, beginning from a height of 4 m from the required rear yard setback.

The ancillary building containing a garden suite will penetrate the 45 degree angular plane projected towards the front (south) lot line, beginning from a height of 4 m from the required rear yard setback.

Chapter 150.7.60.30.(2)(A)(iii), By-law 569-2013

No part of an ancillary building containing a garden suite may penetrate a 45 degree angular plane projected towards the opposite side lot line, beginning from a height of 4 m from the required side yard setback.

The ancillary building containing a garden suite will penetrate the 45 degree angular plane projected towards the opposite side lot line, beginning from a height of 4 m from the required east side yard setback.

Chapter 150.7.60.30.(2)(A)(iii), By-law 569-2013

Chapter 150.7.60.40.(1)(A), By-law 569-2013

Despite regulation 10.5.60.40(2)(B), if the ancillary building containing a garden suite is located a minimum of 5 m to less than 7.5 m from the residential building on the lot, the maximum permitted height of an ancillary building containing a garden suite is 4 m.

The ancillary building containing a garden suite will be located 6.59 m from the residential building on the lot and will have a height of 6 m.

Chapter 150.7.60.70.(1)(B), By-law 569-2013

Despite regulations 10.5.60.70(1) and 10.10.60.70(1), if a lot has an ancillary building containing a garden suite, the area of the lot covered by all ancillary buildings combined, including the ancillary building containing a garden suite, may not exceed 20% (39.58 m2 ) of the total lot area.

The ancillary building containing a garden suite will cover 21% (41.43 m2 ) of the total lot area.

Chapter 150.7.60.70.(1)(C)(i), By-law 569-2013

Despite regulations 10.5.60.70(1) and 10.10.60.70(1), if a lot has an ancillary building containing a garden suite, the total floor area of the ancillary building containing a garden suite may not exceed 40% (37.72 m2 ) of the rear yard.

The ancillary building containing a garden suite will cover 44% (41.43 m2 ) of the rear yard.

6The COA refused the application on January 31, 2024, and Ms. Andrea Lacalamita, the Applicant, appealed the matter to the Toronto Local Appeal Body (TLAB) which set a Hearing date of June 11, 2024, to hear the Appeal.

7In the interim, the Applicant revised the proposal by eliminating the cantilevered overhang incorporated as part of the second storey of the proposed garden suite. This resulted in a reduction of 5.11 m² (55 sq. ft.) in total square footage of the 2^nd floor of the proposed garden suite thereby eliminating the need for Variances Nos. 5 and 9.

8This revision also impacted Variance No. 5 (Separation and Dimensions – Angular Planes) and, although this Variance is still required by the Appellant, the removal of the cantilevered overhang also reduced the area of building mass within the south elevation that would penetrate the angular plane.

9As a result, the Appellant is now seeking the following nine (9) variances to permit the construction of the proposed ancillary structure (garden suite):

10REVISED LIST OF REQUESTED VARIANCES

Chapter 150.7.50.10.(1)(A)(i), By-law 569-2013

In this case, 15% (13.94 m²) of the area between all rear main walls of the residential building on the lot and the rear lot line will be maintained as soft landscaping.

Chapter 150.7.60.20.(2)(B), By-law 569-2013

The minimum required rear yard setback for an ancillary building containing a garden suite is 1.5 m.

The ancillary building containing a garden suite will be located 0.4 m from the rear (north) lot line.

Chapter 150.7.60.20.(5)(B), By-law 569-2013

The minimum required side yard setback for an ancillary building containing a garden suite is 10% (0.62 m) of the lot frontage.

The ancillary building containing a garden suite will be located 0.1 m from the side (east) lot line and 0.32 m from the side (west) lot line.

Chapter 150.7.60.30.(2)(A)(i), By-law 569-2013

Chapter 150.7.60.30.(2)(A)(ii), By-law 569-2013

Chapter 150.7.60.30.(2)(A)(iii), By-law 569-2013

Chapter 150.7.60.30.(2)(A)(iii), By-law 569-2013

Chapter 150.7.60.40.(1)(A), By-law 569-2013

The ancillary building containing a garden suite will be located 6.59 m from the residential building on the lot and will have a height of 6 m.

Chapter 150.7.60.70.(1)(C)(i), By-law 569-2013

The ancillary building containing a garden suite will cover 44% (41.43 m2 ) of the rear yard.

11There were no other Parties or Participants who elected status in this Appeal matter.

12In attendance at the Hearing were the Appellant, Mr. Tsialtas, and Ms. Lacalamita. Ahan Ali and James Calderone attended as observers. Mr. Ali identified himself as a neighbour of the subject property and attended because of his interest in the proposal.

13Recently appointed Members of the TLAB, Members Herscher, Mullock and Gallaugher, also attended the Hearing, observing the proceedings.

14I advised those present at the Hearing that pursuant to Council’s direction, I had attended the subject site, familiarized myself with the surrounding neighbourhood and reviewed all of the pre-filed materials in preparation for the Hearing but that it is the evidence to be heard that is of importance.

THE LEGISLATIVE AND POLICY FRAMEWORK

15Provincial 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.

16Provincial 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.

17Variance – 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

18Andrea Lacalamita attended the Hearing as Mr. Tsialtas’ Representative for the purpose of providing evidence to the TLAB at the Hearing. Ms. Lacalamita is the architect for the project.

19She submitted a number of documents on behalf of the Owner of the subject property filed as the Appellant’s Disclosure consisting of a set of Site Plan and Elevation drawings, supplementary drawings of the proposed soft landscaping in the rear yard, drawings illustrating setbacks, height and angular planes, and COA decisions granting similar setback variances for five (5) properties within the general neighbourhood.

20Ms. Lacalamita was not proffered or qualified as an expert witness in land use planning and provided no planning evidence on behalf of the Appellant in support of the variances requested.

21However, in filing the Notice of Appeal (Form 1) to the TLAB on behalf of Mr. Tsialtas, on February 20, 2024, she did state the following:

“Despite the reasons for refusal provided by Committee in their Notice of Decision (dated 6 February 2024), it is the belief of the appellant and representative that:

The general intent and purpose of the Official Plan is maintained.
The general intent and purpose of the Zoning By-law is maintained.
The variance(s) are desirable for the appropriate development of the land.
The variance(s) are minor.

Central to our grounds for appeal are the lack of objections to the proposal from City Planning or Urban Forestry and the existence of existing site conditions and structures (both on the subject property and neighbouring properties) that provide important precedent and context for the variances requested.

Further, an appeal will enable the appellant to provide a more detailed review of the rationale for the requested variances, which is necessary given the lack of appropriate existing precedents for this relatively new building typology (garden suites).”¹

22In referencing the last paragraph in the excerpt from the Notice of Appeal, above, Ms. Lacalamita advised that the Appellant wanted the opportunity at the Hearing to explain the variances being requested and provide an overview of the proposal to construct a ‘garden suite’.

23She did, however, acknowledge that she would not be providing any testimony or evidence of a planning nature to support how the variances satisfy the four statutory tests mandated by s. 45(1) of the Planning Act.

24She provided an opening statement to the TLAB and submitted that although the COA refused all of the variances sought by her client, the Appellant was confident that the proposal met the requisite planning tests. She also confirmed that the existing ancillary (garage) structure in the rear yard was not structurally sound and would have to be demolished to accommodate the proposed garden suite.

25She then proceeded to review the variances required to permit the construction of the garden suite on the subject property.

26With respect to Variance 1, a variance to permit 15% (13.94 m²) of soft landscaping between the rear main walls of the residential building on the lot and the rear lot line, whereas the Zoning By-law requires a minimum of 50% (46.94 m²), Ms. Lacalamita asserted that the Appellant proposes to maintain the existing condition of 15% soft landscaping.

27She argued that the existing hard landscaping on the subject property, which covers approximately 85% of the lot, cannot be reduced because of requirements such as a path of travel for access to the rear, the proposed garden suite, the existing at-grade porch at the rear of the existing residential dwelling, and the proposed parking space for the garden suite. Therefore, the Appellant was unable to alter the 15% soft landscaping being proposed.

28She grouped Variances 2 and 3, as they relate to the minimum required rear and side yard setbacks for an ancillary building (garden suite) and argued that the proposed setbacks are necessary to accommodate the interior floor plans or “program” (her term) of the garden suite.

29She also submitted that meeting the minimum rear yard setback requirements would not be possible given the shallow depth of the subject property.

30Ms. Lacalamita maintained that the proposed side yard setbacks would have limited impact on the abutting lots as both properties included garages at the rear that align with the proposed garden suite.

31She then discussed the requested variances related to the 45-degree angular plane requirements pertaining to garden suites in the Zoning By-law, clustering Variances 4, 5, 6 and 7 for discussion purposes. Each of these variances requires permission to penetrate the angular plane projected toward one of the lot lines to accommodate the massing, scale and flat roof of the proposed garden suite.

32Ms. Lacalamita asserted that these variances are required to accommodate the internal ‘programming’ layout for the proposed two-storey garden suite and to provide appropriate “headspace” (her term) height for various elements (e.g., internal staircase) within the 2^nd storey.

33In discussing this aspect of the design of the ancillary structure, she highlighted that the Appellant eliminated the cantilevered overhang on the south elevation of the proposed garden suite thereby reducing the setback to the residential dwelling and the overall size of the 2^nd storey.

34With respect to Variances 8 and 9 which relate to lot coverage, Ms. Lacalamita asserted that the area of the lot covered by the ancillary building (garden suite) is calculated to be 21% (41.43 m²) which, in her opinion, represents a ‘minor’ increase to the maximum permitted lot coverage of 20% (39.58 m²).

35She also submitted that the lot coverage of the total area of the proposed garden suite of 44% (41.43 m²) of the rear yard, whereas a maximum of 40% (37.72 m²) is required, is appropriate and will maintain the existing condition on the subject property.

36In her closing statement to the TLAB, Ms. Lacalamita cited five (5) COA decisions which she stated illustrate precedents for garden suite proposals in the neighbourhood with approved variances for similarly proposed rear and side yard setbacks as well as penetration into angular planes.

37She also referred to a shadow study she prepared (Exhibit 6) which compared the existing (garage) condition and the proposed garden suite and illustrated the impact of proposed shadows on the abutting property to the north of the subject property during the March and September equinoxes and the June and December solstices.

38Ms. Lacalamita asserted that the increased shadows to the north would be minimal even with the taller garden suite structure, but that the Appellant did make an attempt to address this in the design of the building through revisions to the proposal that have resulted in two (2) fewer variances being required.

ISSUES AND ANALYSIS

39A hearing before the TLAB is a hearing ‘de novo’ under s. 45(18) of the Planning Act (Act), meaning the entire application that was before the COA is to be considered anew.

40The burden is on the Applicant to prove its case and to satisfy the TLAB that the application before it meets the four statutory tests mandated by s. 45(1) of the Act.

41For the variances to be approved, the TLAB must be satisfied that all four tests are met. Ms. Lacalamita’s evidence in this matter was presented primarily in the form of a review of the proposal from an architectural or structural perspective of the proposed ancillary structure with no planning support for the variances sought.

42Following questions from the presiding Panel Member regarding the lack of discussion from a policy perspective or how the variances met the statutory planning tests, she confirmed that the Tribunal could perceive this lack of planning justification as problematic.

43Furthermore, on follow-up questions, she acknowledged being unaware of the requirements at the TLAB to provide planning rationale to support the granting of the requested variances. Ms. Lacalamita was not familiar with the City’s Expanding Housing Options in Neighbourhoods (EHON) – Garden Suite – Final Report (December 21, 2021) which recommended a planning framework to permit garden suites on lands within the City of Toronto that are designated Neighbourhoods by amending both the Official Plan and City-wide Zoning By-law 569-2013.

44She was also unaware of the City’s planning legislation germane to garden suites such as Official Plan Amendment 554 (adopted by Council in February 2022), Site and Area Specific Policy 670 (Garden Suites in neighbourhoods), and Zoning By-law Amendment 101-2022 (to permit Garden Suites).

45The TLAB is committed to sustaining an accessible forum for the resolution of land use planning disputes within its mandate. On occasion, this means that latitude will be granted to those who are self-represented and those who are not familiar with the TLAB Appeal process. However, this does not mean that a Party involved in a Hearing before this Tribunal is excused from the basic responsibilities and respect that must be accorded to the TLAB process.

46The TLAB has numerous resources, both on the TLAB’s website and elsewhere, that are available to assist the public in understanding what a hearing entails and the obligations of a Party, especially the Applicant/Appellant in TLAB Appeals.

47While the principles of administrative law, or those of good community planning, might be foreign to lay persons, even the most cursory of research would identify that the basis for granting variances to a Zoning By-law in Ontario, whether at the Committee of Adjustment or by way of an appeal to a tribunal, rests on satisfying the four statutory test outlined in s. 45(1) of the Act.

48That is, do the variances being sought: maintain the general intent and purpose of the Official Plan; maintain the general intent and purpose of the Zoning By-law; desirable for the appropriate development or use of the land; and are they minor in nature?

49It is the Applicant’s responsibility to put before the TLAB the evidence necessary to enable the Tribunal to make the findings required by the Planning Act. In the matter at hand, the Appellant has failed to address these four tests properly or directly in any planning respect.

50Although Ms. Lacalamita reviewed the variances requested, she did not address them from the perspective of the four tests or any planning policy context. Furthermore, she did not provide evidence as to whether the Appellant’s proposal is consistent with the 2020 Provincial Policy Statement (PPS) or conforms to, and does not conflict with, the Growth Plan for the Greater Golden Horseshoe (Growth Plan).

51While Ms. Lacalamita cited previous COA approval decisions for similar proposals in the general area of the subject property, she failed to identify or establish a Geographic Neighbourhood (study area) for character assessment as directed by the Official Plan and a Broader and Immediate Context.

52I found it difficult to understand the locational context of the COA decisions she highlighted. The COA decision examples she cited were scattered throughout a rather wide radius from the subject property. In fact, only three (3) of the decisions cited, 240 Glenholme Ave., 206 Oakwood Ave. and 173 Northcliffe Blvd., are located within a radius of 300 metres or what planners would consider an appropriate neighbourhood area.

53The Appellant failed to consider or assess the variances within the policy context of the Official Plan or Zoning By-law. Ms. Lacalamita did not consider any applicable Official Plan policies and, more specifically, those in OPA 554 and SASP 670 and she also did not provide evidence as to whether the requested variances, individually and cumulatively, maintained the general intent and purpose of the Zoning By-law.

54I, therefore, have no basis on which to find that the variances requested by the Appellant meet any of the four tests outlined in the Planning Act. I find that the Appellant has not satisfied the burden upon which the TLAB could authorize or grant the requested variances in any respect.

CONCLUSION

55The Appellant has not provided sufficient justification for the TLAB to be satisfied that the requested variances maintain the general intent and purpose of the Official Plan and Zoning By-law and that the requested variances are Minor and Desirable for the appropriate development of the land.

DECISION AND ORDER

56The Appeal is refused, and the variances are not authorized. The decision of the Committee of Adjustment issued on January 31, 2024, for the Case File Number referenced above is confirmed.

D. Lombardi

Panel Member

Footnotes

Appellant’s Notice of Appeal (Form 1), dated February 20, 2024, p. 4.