Meloche (Re), 2024 ONTLAB 252

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-08-26

24 141829 S45 19 TLAB

Meloche (Re), 2024 ONTLAB 252

FINAL DECISION AND ORDER

Issuance Date:

August 26, 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):

K. MELOCHE

Applicant(s):

MOOTE ARCHITECT

Property Address:

69 COXWELL AVE

COA File No.:

24 107499 STE 19 MV (A0087/24TEY)

TLAB Case File No.:

24 141829 S45 19 TLAB

Hearing Date(s):

August 20, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Chair D. Lombardi

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

MOOTE ARCHITECT

Appellant

K. MELOCHE

G. MOOTE

INTRODUCTION AND CONTEXT

1This is an appeal by the Applicant, Geoffrey Moote (Moote Architect), on behalf of Appellant Kurtis Meloche (Bicycle Properties), of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for sixteen (16) variances in total, for the property municipally known as 69 Coxwell Avenue (subject property).

2The purpose of the application is to permit the Appellant to construct a new six-storey apartment building with a rear ground floor deck, side (south) access stairs, front and rear fifth-storey Juliette balconies, front and rear sixth-storey balconies, as well as side (south) and rear basement walkouts (Application).

3The Application proposes a total of ten (10) residential units within the building.

4The subject property is located on the east side of Coxwell Avenue, south of Dundas Street East, in the former City of Toronto.

5It is designated ‘Neighbourhoods’ in the City Official Plan (OP) and zoned R (d 1.0) (x407) (Residential) under Zoning By-law 569-2013.

6The Applicant is seeking relief from the provisions of the Zoning By-law with respect to building setbacks, platforms in relation to building setbacks, bicycle maintenance facilities, building height, building depth, floor space index, platform encroachment, soft landscaping, waste storage, visitor and accessible parking spaces, and bicycle parking.

7REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:

1. Chapter 10.5.40.70.(1)(B), By-law 569-2013

The minimum required front yard setback is 2.34 m. The new apartment building will be located 1.81 m from the front (west) lot line.

2. Chapter 10.5.40.50.(2), By-law 569-2013

A platform without main walls, attached to or less than 0.3 m from a building, must comply with the required minimum building setbacks for the zone (7.5 m side yard setback).

In this case, the rear ground floor deck will be located 0.3 m from the side (north) lot line and 2.1 m from the side (south) lot line. The front and rear sixth storey balconies will be located 1.8 m from the side (north) lot line and 0.8 m from the side (south) lot line.

3. Chapter 230.5.1.10.(12), By-law 569-2013

If a building has uses for which 5 or more long-term bicycle parking spaces are required, bicycle maintenance facilities must be provided in the building with a minimum length of 1.8 m, a minimum width of 2.6 m, and a minimum vertical clearance of 1.9 m from the ground.

In this case, no bicycle maintenance facility will be provided.

4. Chapter 10.10.40.10.(1)(A), By-law 569-2013

The maximum permitted building height is 13 m.

The new apartment building will have a height of 19.51 m.

5. Chapter 10.10.40.30.(1)(B), By-law 569-2013

The maximum permitted building depth is 14 m.

The new apartment building will have a depth of 24.5 m.

6. Chapter 10.10.40.40.(1)(A), By-law 569-2013

The maximum permitted floor space index is 1 times the area of the lot (255.27 m2 ).

The new apartment building will have a floor space index equal to 3.74 times the area of the lot (953.95 m2 ).

7. Chapter 10.10.40.70.(3)(C)(ii), By-law 569-2013

The minimum required side yard setback is 7.5 m.

The new apartment building will be located 0 m from the side (south) lot line and 0.3 m from the side (north) lot line.

8. Chapter 10.10.40.70.(2), By-law 569-2013

The minimum required rear yard setback is 7.5 m.

The new apartment building will be located 6.6 m from the rear (east) lot line.

9. Chapter 10.5.40.60.(1)(C), By-law 569-2013

A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required rear yard setback 2.5 m if it is no closer to a side lot line than 1.3 m.

The rear ground floor deck encroaches 2.55 m into the required rear yard setback and is located 0.3 m from the side (north) lot line.

10. Chapter 10.5.50.10.(4)(A), By-law 569-2013

A minimum of 50% (127.6 m²) of the lot area must be maintained as landscaping. In this case, 29% (73.6 m²) of the lot area will be maintained as landscaping.

11. Chapter 10.5.50.10.(4)(B), By-law 569-2013

A minimum of 50% (63.8 m²) of the required landscaping must be provided as soft landscaping.

In this case, 31% (39 m²) of the required landscaping will be provided as soft landscaping.

12. Chapter 10.5.50.10.(5), By-law 569-2013

A minimum 1.5 m wide strip of soft landscaping must be provided for a lot with an apartment building, along any part of a lot line abutting a lot in a Residential Zone.

In this case, no strip of soft landscaping abutting the side (north and south) lot lines will be provided.

13. Chapter 10.5.150.1.(1), By-law 569-2013

All waste and recyclable material must be stored in a wholly enclosed building.

In this case, the waste and recyclable material will not be stored in a wholly enclosed building.

14. Chapter 200.5.10.1.(1), By-law 569-2013

A minimum of 2 visitor parking spaces are required to be provided on-site.

In this case, no visitor parking spaces will be provided on-site.

15. Chapter 200.15.10.10.(1)(A), By-law 569-2013

A minimum of 1 accessible parking space is required to be provided on-site.

In this case, no accessible parking spaces will be provided on-site.

16. Chapter 230.5.10.1.(5)(A), By-law 569-2013

A minimum of 1.1 bicycle parking spaces for each dwelling unit are required to be provided on-site, allocated as 0.9 long-term bicycle parking space per dwelling unit and 0.2 short-term bicycle parking space per dwelling unit.

In this case, no bicycle parking spaces will be provided on-site.

8The COA refused the application on April 10, 2024, and Mr. Meloche appealed the matter to the Toronto Local Appeal Body (TLAB), which set a Hearing date of August 20, 2024, to hear the appeal.

9No other Parties or Participants have elected status in this Appeal matter.

10In attendance at the TLAB Hearing on August 20th were the Applicant, Mr. Moote, and the Appellant and owner of the subject property, Mr. Meloche.

11Paul Grant, a neighbour residing at 1939 Dundas St. E., and Member Yeta Herscher, a recently appointed TLAB Member, attended the Hearing as observers to the Proceedings.

12I advised those present at the Hearing that pursuant to Council’s direction, I had visited the subject site and familiarized myself with the surrounding neighbourhood. I also stated that I had reviewed the pre-filed materials in preparation for the Hearing but noted that it is the evidence to be heard that is of importance.

THE LEGISLATIVE AND POLICY FRAMEWORK

13Provincial 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.

14Provincial 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.

15Variance – 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

16Mr. Moote, the Appellant’s authorized Representative and the project architect, spoke regarding the Application on behalf of the Appellant. Mr. Motte filed no document disclosure or any supporting materials in support of the proposal.

17Mr. Moote was provided an opportunity to make a brief opening statement to the TLAB and, in doing so, he stated that the subject property is a vacant lot located along Coxwell Avenue, considered by the City a ‘Major Street’ in the Official Plan.

18He noted that the proposal is to construct a six (6) storey mid-rise building containing ten (10) purpose-built rental units.

19He asserted that purpose-built rental housing, rental housing located along major streets, and major streets supported by public transportation and bike lane options are all concepts which describe the foundation of the proposed development and are concepts supported in the current version of the Official Plan (Healthy Neighbourhoods).

20In support, the Notice of Appeal (Form 1) he filed with the Tribunal references the City’s Official Plan, specifically Chapter 4 related to lots fronting on major streets and Chapter 5 which states that variances to a zoning by-law to grant a height and/or density increase for a particular project that is greater than the maximum otherwise permitted in return for community benefits such as “… purpose-built rental housing.”¹

21Mr. Moote provided an abbreviated overview of the Site Plan and Elevation Drawings (Exhibit 1) for the proposed development and noted that of the ten (10) purpose-built rental units being proposed, five (5) of the units would be one-bedroom suites and the other five (5) would be two-bedroom suites.

22In characterizing the proposal as a “mid-rise apartment typology”², he asserted that the City’s recently adopted Expanding Housing Options in Neighbourhoods (EHON): Major Streets Study - Final Report (EHON: Major Streets Study) supports such “mid-rise buildings in neighbourhoods” and recommends acceptance of 6-storey ‘mid-rise’ (his terminology) buildings of up to 30 units along major streets.

23The EHON: Major Streets Study was adopted by Council on May 22, 2024, and Official Plan Amendment 727 (OPA 727) and the corresponding amendments to Zoning By-law 569-2013 were passed by By-law (By-laws 608-2024 and 609-2024, respectively) on June 27, 2024.

24However, the EHON Major Streets Study and OPA 727 have since been appealed to the Ontario Land Tribunal (OLT).

25In concluding his remarks, Mr. Moote apologized to the TLAB for a lack of evidence in support of the Application. He stated that there had been a “misunderstanding” on his part of the TLAB’s mandate relative to the Application and the legislative tests in s.45(1) of the Planning Act.

26However, he also stated that he was under the impression that the TLAB Hearing was more of an “informal process” wherein the Applicant could attend and “have a dialogue with the Tribunal Member regarding the proposal.”

27The presiding Panel Member then provided the Appellant with an opportunity to make a statement.

28Mr. Meloche offered a brief overview, generally, of his company’s philosophy regarding purpose-built rental and multifamily housing projects and, specifically, of their approach to the proposed development of the subject property.

29He noted that his company builds primarily purpose-built rental buildings and that his partners live, play, and raise our families in the neighbourhoods that they build in. He stated that the subject property presented a unique opportunity to develop flexible housing solutions on this particular lot.

ISSUES AND ANALYSIS

30A 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 must be considered anew.

31The burden is on the Applicant to prove its case and to satisfy the Tribunal that the application before it meets the four statutory tests mandated by s.45(1) of the Act.

32Consequently, for variances to be approved, the TLAB must be satisfied that all four tests have been met.

33Mr. Moote’s evidence in this matter was presented primarily in the form of comments regarding the proposed development from an architectural perspective with absolutely no planning support for the variances being sought.

34In responding to a question from the presiding Panel Member regarding the lack of evidence or discussion from a policy perspective or how the variances satisfy the statutory planning tests, Mr. Moore conceded that the TLAB could receive this lack of planning justification as problematic.

35On supplementary questions from the presiding Panel Member, he acceded to being unaware of the requirements at the TLAB for the Applicant to provide planning justification and rationale to support the granting of the requested variances.

36Although Mr. Moote did make a generalized reference to the Official Plan and support for purpose-built rental housing in his Notice of Appeal Form, citing the EHON: Major Streets Study as direct support for the building typology being proposed on the subject property, he submitted neither the Study nor any supporting documentation as evidence in that regard.

37Furthermore, he acquiesced under questioning from the TLAB Panel Chair to the fact that the EHON: Major Streets Study and corresponding OPA 727 were under appeal to the Ontario Land Tribunal (OLT) and, therefore, this City policy initiative had no standing as approved planning policy in the appeal before the TLAB.

38In referencing the EHON: Major Streets Study in support of the subject Application and proposed development, Mr. Moote writes the following in the Notice of Appeal:

“…the direct support for mid rise buildings in neighbourhoods comes from the more recent Expanding Housing Options in neighbourhoods: Major Street (sic) Study.”³

39He repeats this terminology in the following excerpt from the same document when he states:

“What is less clear-cut in the OP currently, is the same open-arms level of acceptance of our small scale, mid-rise apartment typology.”⁴

40While perhaps inconsequential, it nevertheless suggests that Mr. Moote has erroneously conflated the terms ‘small apartments” and ‘mid-rise buildings’ in attempting to describe or characterize the development proposed for the subject property given that the building typologies described in the EHON: Major Streets Study and the recommended permissions therein, relate to “townhouses and small-scale apartment buildings (my emphasis)” and not ‘mid-rise’ buildings.

41‘Mid-rise’ buildings are a different typology of built form that the City has defined in separate legislation (Housing Action Plan) which are defined as buildings having “…heights generally no greater than the width of the right-of-way that the building fronts onto, up to 11 storeys …encouraged along Avenues designated Mixed Use Areas in the Official Plan, with their physical form and relationship to their context informed by the Mid-rise Building Performance Standards Urban Design Guidelines.”⁵

42Given that the subject Appeal was filed with the TLAB prior to the EHON Major Streets Study being adopted by Council and that the legislation has been appealed, and acknowledging that the Appellant has not introduced these built form policies as evidence in the Hearing, the TLAB has determined that it has no policy consideration basis in this matter.

43The TLAB makes this determination on the basis that considering a new policy regime such as OPA 727 that has yet to come into force would be unfair, prejudicial and contrary to the Clergy Principle as enunciated by Ontario Municipal Board (OMB) in its 1996 decision, Clergy Properties Ltd. V. Mississauga (City), {1996} O.M.B.D. No. 1840, 34 O.M.B.R. 277 (O.M.B.) and in decisions subsequent thereto.

44A particularly clear and articulate enunciation of the Clergy Principle’s application is as pronounced in a 2003 OMB in James Dick Construction Ltd. V. Caledon (Town). In that decision, the OMB Member wrote the following:

“It should continue to serve as a firm guide when faced with questions of which policies should be used to evaluate an application in those infrequent cases where the policy environment pertaining to the application has changed before the application could be finally decided. It is practice that promotes fairness, consistency and predictability – all of which are of value to the planning process and to all participants in that process.

In short, people should continue to expect that the policies that are in place when they apply will be made to apply to them. In the vast majority of cases, this should continue to be the practice of the Board as has been in the past.”⁶

45The TLAB is committed, within its mandate, to sustaining an accessible forum for the resolution of land use planning disputes. On occasion, this means that latitude will be accorded to those who are self-represented and those who are not familiar with or who admit inexperience with the TLAB appeal process.

46This, however, does not suggest that a Party involved in a hearing before this Tribunal, especially an Applicant/Appellant, is excused from the basic responsibilities and respect that must be accorded to the TLAB appeal process.

47As I noted for Mr. Moote, the TLAB has numerous resources, both on the Tribunal’s website and elsewhere, that are available to assist the public and practitioners in understanding what a hearing entails and the obligations of Parties in TLAB appeals, particularly the Applicant/Appellant.

48While the principles of administrative law or good community planning, for that matter, might not be common knowledge, even the most cursory research would confirm 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 solely on satisfying the four statutory tests in s.45(1) of the Planning Act.

49That is, do the variances requested: maintain the general intent and purpose of the Official Plan and the Zoning By-law; are desirable for the appropriate development or use of the land; and are minor in nature?

50Simply put, it is the Applicant’s responsibility to provide the TLAB with the evidence necessary to enable the Tribunal to make the necessary findings required within its mandate as defined in the Planning Act.

51In the matter at hand, Mr. Moote provided no evidence of any consequence to support the granting of the variances being sought from either the perspective of the four tests or any planning policy context.

52Additionally, he did not address Provincial Policy and whether the Application was consistent with the 2020 Provincial Policy Statement (PPS) or whether it conforms to and does not conflict with the Growth Plan for the Greater Golden Horseshoe (Growth Plan).

53In short, the Applicant failed to consider or assess the variances being sought within the policy context of the Official Plan and provided no evidence as to whether the variances, individually and cumulatively, maintain the general intent and purpose of the Zoning By-law.

54Therefore, the TLAB has no basis on which to find that the variances requested meet any of the four statutory tests outlined in the Act and finds that the Applicant has not satisfied the burden of proof upon which the Tribunal could authorize or grant the variances in any respect.

CONCLUSION

55The Applicant has not provided sufficient justification for the TLAB to be satisfied that the variances requested maintain the general intent and purpose of the Official Pla and the Zoning By-law, 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 April 10, 2024, for the Case File Number referenced above, is confirmed.

D. Lombardi

TLAB Chair, Panel Member

Footnotes

1. 1City of Toronto Official Plan, June 2024 Consolidation, Policy 5.1.1 (Heights And/Or Density Incentives, p. 5-2.
2. 2Appellant’s Notice of Appeal (Form 1) for 69 Coxwell Ave., dated April 29, 2024, p. 4.
3. 3Appellant’s Notice of Appeal (Form 1) for 69 Coxwell Avenue, dated April 29, 2024, p. 4.
4. 4Ibid.
5. 5City of Toronto Housing Action Plan: As-of-Right Zoning for Mid-rise Buildings on Avenues and Updated Rear Transition Performance Standards – Proposal Report, dated March 27, 2024, p. 1.
6. 6James Dick Construction Ltd. v. Caledon (Town), 2003 CarswellOnt 6221 (O.M.B.) (OMB Case No. PL0000643, issued November 25, 2003).