Wang (Re), 2024 ONTLAB 263

Toronto Local Appeal Body

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

Date: 2024-09-17 File No.: 24 148533 S45 16 TLAB Citation: Wang (Re), 2024 ONTLAB 263

FINAL DECISION AND ORDER

Issuance Date: September 17, 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): YUNFU WANG Applicant(s): WANG ARCHITECTS INC Property Address: 14 LACEWOOD CRES COA File No.: 24 118174 NNY 16 MV (A0101/24NY) TLAB Case File No.: 24 148533 S45 16 TLAB Hearing Date(s): August 26, 2024

Decision Delivered By: TLAB Panel Member A. Brown

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Appellant	Yunfu Wang	Johnson Choy
Applicant	WANG ARCHITECTS INC
Participant	Nancy Yewen
Participant	Vera Straka
Party	City of Toronto	Uttra Gautam
Party	Richard Kenneth Paton	Rayman Harris LLP

INTRODUCTION AND CONTEXT

1This Appeal was heard on August 26, 2024, by way of a virtual Hearing.

[2] Parties in attendance were: The Appellant, Yunfu Wang, owner of 14 Lacewood Crescent Johnson Choy, representative of Mr. Wang City of Toronto, represented by Uttra Gautam, legal counsel Richard Kenneth Paton, represented by Sarah Spitz, Rayman Harris LLP

Participants in attendance were: Nancy Yewen Vera Straka, on behalf of Don Mills Residents Inc.

3The subject property is designated in the City of Toronto Official Plan as "Neighbourhoods" and is zoned Residential Detached RD (f15.0; a550) (x5) in the city-wide Zoning By-law 569-2013.

4The Appellant's original application to the Committee of Adjustment sought six variances:

1. Chapter 10.20.40.10.(1) A), By-law No. 569-2013 The permitted maximum height of a building or structure is 10 metres. The proposed height of the (building/structure) is 10.65 metres.
2. Chapter 10.20.40.10.(2) A), By-law No. 569-2013 The permitted maximum height of all side exterior main walls facing a side lot line is 7.5 metres. The proposed height of the East side exterior main walls facing a side lot line is 7.8 metres.
3. Chapter 10.20.40.10.(2) A), By-law No. 569-2013 The permitted maximum height of all side exterior main walls facing a side lot line is 7.5 metres. The proposed height of the West side exterior main walls facing a side lot line is 7.8 metres.
4. Chapter 10.20.30.40.(1) A), By-law No. 569-2013 The permitted maximum lot coverage is 30 percent of the lot area. The proposed lot coverage is 32 percent of the lot area.
5. Chapter 10.20.40.10.(3) A), By-law No. 569-2013 The permitted maximum number of storeys is 2. The proposed number of storeys is 3.
6. Chapter 10.20.40.50.(1) B), By-law No. 569-2013 The permitted maximum area of each platform at or above the second storey of a detached house is 4.0 square metres. The proposed area of the rear platform at the second storey is 15.94 square metres.

5The application and requested variances were refused by the Committee of Adjustment on April 25, 2024, and this Appeal was submitted on May 13, 2024.

6Subsequently, the Toronto Local Appeal Body (TLAB) received a revised submission from the Appellant, filed effective August 6, 2024. Along with the revised submission, the Appellant submitted revised drawings and a notice from the City's Zoning Examiner.

7The revised submission (Revised Application) requested one variance, namely an increase to the permitted lot coverage from 30 to 32 percent, which was part of the original application. According to the Zoning Examiner's Notice, the drawings accompanying the Revised Application no longer depict a three-storey dwelling or an oversized deck off the second storey. The requested variances to building height and the height of the east and west side walls were also eliminated with the revised drawings.

8On August 21, 2024, the TLAB received another set of drawings from the Appellant, in order to correct two minor errors.

9Accordingly, the only variance at issue in this Appeal is the request to increase the lot coverage of the proposed dwelling from 30 percent to 32 percent of the total lot area.

THE LEGISLATIVE AND POLICY FRAMEWORK

10Provincial 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.

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 (Growth Plan) for the subject area.

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

13All of the evidence and testimony in this matter have been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined below.

14The Exhibits filed in this matter are:

Exhibit One – Set of revised "Corrected" Drawings, Plans and Elevations marked "issued for TLAB 2024-08-20" received by the TLAB on August 21, 2024 Exhibit Two – Zoning Examiner's Notice Exhibit Three – Richard Paton Witness Statement Exhibit Four – Nancy Yewen Witness Statement Exhibit Five – Nancy Yewen "Reply" Witness Statement Exhibit Six – Vera Straka Witness Statement Exhibit Seven – Johnson Choy "Reply" Submissions received August 6, 2024

15Pursuant to Council's direction, I visited the subject site prior to the Hearing and familiarized myself with the surrounding neighbourhood. My observations are not evidence, but they assist me in understanding the evidence and submissions. I also familiarized myself with the materials filed in this matter.

16There are two preliminary matters to be addressed before considering the evidence.

17The original Notice of Appeal requested six variances. As mentioned, the Appellant subsequently submitted a "Reply" seeking one variance. He also submitted a set of revised drawings and a Notice from the City's Zoning Examiner as part of a Revised Application. This submission was accepted by the Tribunal as of August 6, 2024, and was marked "late" by the Tribunal. The Parties did not raise objections to the late submission.

18The Appellant subsequently submitted another set of revised drawings, received by the Tribunal as of August 21, 2024, to correct two minor errors on the August 6th plans. The Parties did not object to this late filing either.

19As permitted by the Tribunal's Rules, I exercised my discretion and accepted the revised submissions and drawings despite the fact that they were late. The submission on August 6, 2024 significantly narrowed the list of requested variances. The revised plans filed as of August 21, 2024, merely (but importantly) corrected minor errors found on the August 6th drawings. The Parties and Participants had time to respond to the revisions of August 6, and were not prejudiced by the late submissions.

20Moreover, subsection 45(18.1.1) of the Planning Act (Act) provides that no new public notice is required under subsection 45(18.1) if, in the Tribunal's opinion, the amendment to the original application is minor. There is no further statutory guidance on what constitutes a minor amendment. Context is very important when considering whether an amendment to an original application is minor. The remaining variance is not new; it was included in the original Appeal and at the Committee of Adjustment.

21The main (but not only) objections to the variances sought at the Committee of Adjustment and in respect of the original Appeal were to the number of stories, the building height, and the proposed deck off the second storey. The Appellant's revised submission addressed many of the concerns raised by the Parties and Participants.

22Therefore, pursuant to s. 45.18.1.1 of the Act, no further notice is required.

23At the outset of the Hearing, Uttra Gautam, Counsel for the City of Toronto, advised that the City would not be taking a position on the Appeal, other than to request that the usual requirement of substantial compliance with the latest drawings submitted to the City's Building Department be included as a Condition of Approval, in the event that the requested variance is granted. Accordingly, no evidence was led by the City.

24Party Richard Paton resides at 16 Lacewood Crescent, next door to the subject property. His legal counsel, Sarah Spitz, advised that in light of the revised Appeal, Mr. Paton would not be taking a position on the Appeal other than to request the requirement that there must be substantial compliance with the latest drawings submitted to the City's Building Department should the variance be approved. Ms. Spitz emphasized that compliance is a very important concern for her client, who would be directly affected by the proposed dwelling.

25Johnson Choy represented the Appellant and owner, Yunfu Wang. Mr. Wang did not testify.

26The drawings marked "issued for TLAB" on August 20, 2024 and received by the TLAB on August 21, 2024, were marked as Exhibit 1 and the Zoning Examiner's Notice, dated July 26, 2024, was marked as Exhibit 2 in the Hearing.

27Mr. Choy, the sole witness for the Appellant, did not assert that he has any particular expertise in planning or land use. The Appellant did not submit an expert witness statement from a planning expert. Exhibit 7, the Reply Submission, makes several references to the City's Expert Report, which is not in evidence.

28In his testimony, Mr. Choy explained the changes to the original application that was before the Committee of Adjustment. He stated that only one variance for lot coverage is now required. He explained that the drawings were revised so that the lowest full floor would now meet the definition of "basement" in the Zoning By-law. The floor that was originally a second floor according to the City's Zoning Examiner is now the first floor. There is no deck proposed off the second floor in the revised drawings although there is a deck off the first floor in the revised drawings.

29The revised drawings illustrate that the dwelling would comply with the 10 meter maximum building height and side wall height requirements in the Zoning By-law.

30Mr. Choy explained that these changes were made to address concerns raised by the other parties and participants and submitted that there would no impacts of an undue nature with respect to shadows and sunlight in the rear yards of the abutting neighbours.

31Mr. Choy stated that the proposed dwelling complies with the Zoning By-law in respect of the rear yard. He observed that part of Mr. Paton's house at 16 Lacewood Crescent, which is an L-shaped bungalow, projects back toward the rear lot line comparably to the proposed dwelling. Mr. Choy stated that the shape of the Appellant's property, which is 18.29 meters wide and 30.48 meters deep, required building out to the rear, and this will be achieved within the zoning requirements. He emphasized that there is no proposed extension into the front yard that would require a variance.

32Party Paton originally opposed the proposed variances before the Committee of Adjustment, asserting that in his view, the proposal would have negatively affected the amount of sunlight reaching their rear yard, as well as the privacy of persons using the rear yard and pool.

33He acknowledged that the Appellant's revised drawings had resulted in the required number of variances being reduced to the one for "maximum lot coverage" which is now before the TLAB. The reduced height of the building would allow a bit more sunlight onto his property but did not address his concerns entirely. He stated that, at 10 meters, the dwelling would be the tallest house on the street, "on one of the smallest lots".

34His original objections to the size and height of the deck were somewhat ameliorated as there would be no second-storey deck. However, the deck off the first floor would be 2.21 meters high according to the drawings, still overlooking his rear yard.

35He stated that despite the revised proposal, he would still be facing a large wall presented by the west elevation of the proposed dwelling. Ms. Spitz, legal counsel, emphasized that if there were any changes to the drawings, Mr. Paton would want to have input into them, if the variance were approved.

36Participant Yewen spoke at the Hearing in opposition to the Revised Application. She resides at 49 Groveland Crescent, approximately 240 meters from 14 Lacewood Crescent, and she objected to the original six variances at the Committee of Adjustment.

37Participant Yewen acknowledged that the Appellant had addressed several concerns that arose out of the original request for six variances. She described the neighbourhood as consisting primarily of single storey bungalows and split-level dwellings, many of which were built around the same time as the dwelling on the subject property. Her witness statement included photographs of several homes in the neighbourhood. She testified that there are very few two-storey homes in the neighbourhood.

38She submitted that the proposed variance to exceed the maximum permitted lot coverage does not respect or reinforce the character of the homes in the immediate area.

39Moreover, in her view, the proposal to increase the lot coverage to 32 percent does not appear to provide a tangible benefit to the public, particularly the four adjacent neighbours. She referred to the "massing" of the proposed dwelling, describing it as "very large" and extending further back on the property, which is "only 100 feet" in depth, with a rear yard of 25 feet. In her view, the lot is too small for the proposed dwelling. Houses on some of the other streets in the neighbourhood have deeper lots, where there would, in her view, be less impact on the neighbours by a minor variance to the lot coverage, compared to the situation at 14 Lacewood Crescent. She submitted that the proposed variance is not minor.

40Participant Straka spoke on behalf of Don Mills Residents Inc. (DMRI) which also opposed the application at the Committee of Adjustment. Ms. Straka acknowledged that changes had been made to the original application, but stated that she still regards the drawings as depicting a three-storey dwelling, noting the height of the entrance and the first storey, and the "exceedingly high" basement.

ISSUES AND ANALYSIS

41The issue in this matter is whether the Tribunal should approve the requested variance to allow an increase in the lot coverage from the permitted maximum of 30 percent to the proposed 32 percent of the total lot size.

42A 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 Committee of Adjustment must be considered anew.

43The burden is on the Appellant to prove his case and to satisfy the Tribunal that the application before it meets the four statutory tests mandated by s.45(1) of the Act. That is, does the variance requested maintain the general intent and purpose of the Official Plan and the Zoning By-law? Is it desirable for the appropriate development or use of the land? Is it minor in nature?

44The Tribunal must also have regard to the matters of provincial interest enumerated in section 2 of the Act and its decision 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.

45The Appellant must satisfy his onus by producing evidence. Evidence may include, for example, oral testimony, records, photographs, drawings, and expert reports. The reliability and probative value of evidence is considered and weighed by the Member hearing a matter before the TLAB. Documents, such as the drawings and plans, are evidence when they are identified for the Tribunal and accepted as an exhibit. The submissions or arguments made by a Party or Participant are not evidence. Rather, their important function is to explain a position and to persuade the Tribunal how it should interpret the evidence.

46Has the Appellant satisfied his onus in this matter?

47Mr. Choy focussed on making submissions about such topics as the fact the Appellant is only requesting one variance, there is no variance required in respect of the rear yard or front yard, there have been some "rebuilds" in the neighbourhood, the neighbourhood will see more development with two storeys in the future, and the sunlight reaching the neighbours will be less affected under the Revised Application because the height of the building was reduced to comply with the Zoning By-law. These submissions were made partly to explain the Revised Application and partly to respond to submissions made by Party Paton and the two Participants, and in that respect they were helpful. However, Mr. Choy did not adequately explain how the Revised Application meets the four tests in section 45(1) of the Planning Act, based on the evidence.

48Provincial Policy Statement (2020) and Growth Plan for the Greater Golden Horseshoe

49The development of the subject property must be consistent with the Provincial Policy Statement and conform to the Greater Golden Horseshoe Growth Plan. A PPS is a consolidated statement of the provincial government's policies on land use planning. It gives provincial policy direction on key land use planning issues that affect communities, including the creation of housing. These documents are not of assistance in making a decision in respect of the proposed variance which pertains to a single lot in an established urban area.

50General intent and purpose of the Official Plan

51The Appellant has the onus of demonstrating that the proposed variance is consistent with the general intent and purpose of the Official Plan. Policies arguably relevant to the Revised Application are found in Chapter Four of the Official Plan, in respect of Neighbourhoods, and are also found in Chapter Two, section 2.3.1, where the Official Plan speaks to the need for development that respects and reinforces the physical character of buildings, streetscapes and open space patterns. The Official Plan also recognizes that neighbourhoods may undergo change.

52The Appellant's evidence did not address the general purpose or intent of Official Plan. He did not produce expert or other cogent evidence about the physical character of the neighbourhood. Nor did he provide evidence to define the area of the geographic neighbourhood or the immediate context. This is important to any understanding of the predominant physical character. This evidence would have helped to determine whether the proposed variance would maintain the general intent and purpose of the Official Plan, particularly with respect to the policies in Chapter Four. It was insufficient for Mr. Choy merely to point out that there had been a number of "rebuilds" and that one should expect more development in the future. The issue in this Appeal is not about building a two-storey dwelling; it is about the proposed variance to increase the permitted lot coverage.

53I find that there is not sufficient evidence that the proposed variance would maintain the general intent and purpose of the Official Plan. The proposed variance fails to meet this test.

54General intent and purpose of the zoning by-law.

55The City's Zoning By-law 569-2013 states that it "regulates the use of land, the bulk, height, location, erection and use of buildings and structures, the provision of parking spaces, loading spaces and other associated matters in the City of Toronto." It identifies permitted uses and performance standards which will allow the types of land use and built structures identified in the Official Plan.

56Mr. Choy testified that the front landscaping would remain in compliance with the By-law. He also pointed out that the Zoning By-law permits two-storey dwellings to a height of 10 meters, and therefore is not intended to maintain the low-rise dwellings in the area. However, the issue in this Appeal is the proposed variance to permit an increase over the maximum permitted lot coverage. The Appellant did not provide expert or other cogent evidence about how the proposed variance maintains the general intent and purpose of the Zoning By-law.

57I find that there is not sufficient evidence that the proposed variance would maintain the general intent and purpose of the Zoning By-law. The proposed variance fails to meet this test.

58Is the variance desirable for the appropriate development or use of the land?

59The Appellant did not provide me with evidence to assist me in determining whether the proposed variance would be desirable for the appropriate development or use of the land. Therefore, I find that the proposed variance fails to meet this test.

60Is the variance minor?

61The test for "minor" focuses on the scale and nature of the perceived impact caused by the variance. The courts have established that the test is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.

62An increase to the permitted lot coverage from 30 percent to 32 percent of the total lot area would, according to Mr. Choy, allow the Appellant to build out the dwelling further into the rear yard (still within the zoning requirements). The evidence does not establish how (or by how much) the proposed increase to the lot coverage would affect the extent of the build-out. This might have assisted in determining the impact (if any) of the variance, particularly upon the privacy of the immediate neighbours. It was Mr. Choy's opinion that the impact of the increased lot coverage would not be undue. However, the Appellant did not produce sufficient evidence that would assist in determining whether or not there would be an undue adverse impact of a planning nature arising from the increased lot coverage.

63Mr. Choy submitted that some maximum lot coverage variances had been approved by the Committee of Adjustment in the neighbourhood. In submitting this, he appeared to be relying partly on the Expert Report filed by the City of Toronto. That report is not in evidence before me. It was incumbent on the Appellant to provide me with sufficient details of the approved variances (e.g. the size and location of the affected lots) if he wished me to have regard to them.

64I find that there is not sufficient evidence that the proposed variance is minor. The proposed variance fails to meet this test.

CONCLUSION

65I find that the proposed variance does not meet the four tests found in section 45(1) of the Planning Act.

Decision and Order

66The Appeal is dismissed. The variance sought is not authorized.

A. Brown Panel Member