Toronto Local Appeal Body

40 Orchard View Blvd, suite 253

Toronto, Ontario M4R 1B9

Date:

2024-10-22

24 171657 S45 04 TLAB

Garzelli (RE), 2024 ONTLAB 276

Issuance Date:

October 31, 2024

PROCEEDING COMMENCED UNDER section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant(s):

Applicant(s):

Property Address:

778 WINDERMERE AVE

COA File No.:

24 117741 STE 04 MV (A0222/24TEY)

TLAB Case File No.:

24 171657 S45 04 TLAB

Hearing Date(s):

October 22, 2024

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member Y. HERSCHER

People Type

First Initial, Last Name

Representative

Applicant/Appellant

1This is an appeal by Tom Garzelli (Appellant) of the City of Toronto Committee of Adjustment’s refusal of an application for eleven variances from the City’s comprehensive Zoning By-Law 569-2013 for the property municipally known as 778 Windermere Avenue.

2The purpose of the application is to permit the owner, Donato Trinchi, to construct:

i) a new three-storey detached dwelling with a rear ground floor covered deck (the second storey of the existing dwelling will be demolished and a portion of the existing ground floor will be maintained); and

ii) a one-storey ancillary structure (detached garage) in the rear yard (the existing garage will be demolished).

3The subject property is located in the former City of York and is designated Neighbourhoods in the City Official Plan and is zoned Residential Multiple Zone (RM) in Zoning By-law 569-2013.

Requested Variances to the Zoning By-law

Chapter 10.80.40.70.(3)(A), By-law 569-2013

The minimum required side yard setback is 1.2 meters. The new dwelling will be located 1.07 meters from the side (north) lot line and 0.15 meters from the side (south) lot line.

Chapter 10.80.40.70.(3)(A), By-law 569-2013

The minimum required side yard setback is 1.2 meters. The new rear ground floor deck will be located 0.15 meters from the side (south) lot line.

Chapter 10.80.40.10.(2)(A), By-law 569-2013

The maximum permitted height of all side exterior main walls facing a side lot line is 8.5 meters. In this case, the height of all side exterior main walls facing a side lot line will be 9.68 meters.

Chapter 10.80.40.30.(1), By-law 569-2013

The maximum permitted building depth is 19 meters. The new dwelling will have a depth of 19.9 meters.

Chapter 10.80.40.20.(1), By-law 569-2013

The maximum permitted building length is 17 meters. The new dwelling will have a length of 19.92 meters.

Chapter 10.80.40.40.(1)(A), By-law 569-2013

The maximum permitted floor space index is 0.8 times the area of the lot (274.4 m²). The new dwelling will have a floor space index equal to 0.83 times the area of the lot (283 m²).

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

A minimum of 50% (86.55 m²) of the rear yard must be maintained as soft landscaping. In this case, 37% (64 m²) of the rear yard will be maintained as soft landscaping.

Chapter 10.5.40.60.(7), By-law 569-2013

Roof eaves may project a maximum of 0.9 meters provided that they are no closer than 0.3 meters to a lot line. In this case, the roof eaves will project 0.15 meters and will be located 0 meters from the side (south) lot line.

Chapter 10.5.60.20.(3)(C)(iii), By-law 569-2013

The minimum required side yard setback for an ancillary building or structure located in the rear yard and 1.8 meters or more from the residential building on the lot is 0.3 meters. The ancillary building (detached garage) will be located 0.28 meters from the side (north) lot line and 0.08 meters from the side (south) lot line.

Chapter 10.5.60.50.(2)(B), By-law 569-2013

The maximum permitted total floor area of all ancillary buildings or structures on the lot is 40 m². The ancillary building (detached garage) will have a total floor area of 52.95 m².

Chapter 10.5.60.70.(1), By-law 569-2013

The area of the lot covered by all ancillary buildings and structures may not exceed 10% of the lot area (34.3 m²). The ancillary building (detached garage) will have a lot coverage of 15% of the lot area (52.95 m²).

4The Committee of Adjustment refused the application on June 18, 2024 and, on June 24, 2024, the Appellant appealed the Committee of Adjustment’s refusal to the Toronto Local Appeal Body (TLAB).

5The appeal was heard before me, sitting as the TLAB panel Chair, on October 22, 2024.

6In attendance at the hearing was Tom Garzelli as the agent of the owner. Aside from the Notice of Appeal (Form 1) itself, there were no witness statements or other materials submitted by Mr. Garzelli in support of the application. There were no other parties or participants who elected status in this appeal.

7I advised Mr. Garzelli that I had visited the subject site and reviewed the supporting documentation related to the file, and I also indicated that it was the evidence to be heard at the hearing that is of importance.

THE LEGISLATIVE AND POLICY FRAMEWORK

8Provincial Interest - Section 2 of the Planning Act

A decision of the TLAB shall have regard to matters of provincial interest, as enumerated in clauses 2 (a) through (s) of the Planning Act.

9Provincial Plans and Policy Statements – Section 3 of the Planning Act

A decision of the TLAB must be consistent with the 2020 Provincial Policy Statement and conform to the Growth Plan for the Greater Golden Horseshoe.

10Variance – Section 45(1) of the Planning Act

In considering an application for variance from the zoning by-law, the TLAB must be satisfied that an application meets the four tests under section 45(1) of the Planning Act. The tests are whether the variance,

is minor,
is desirable for the appropriate development or use of the land,
maintains the general intent and purpose of the official plan, and
maintains the general intent and purpose of the zoning by-law.

SUMMARY OF EVIDENCE

11Tom Garzelli attended the hearing as Donato Trinchi’s representative for the purpose of providing evidence to the TLAB. Mr. Garzelli is an architectural technologist at the architectural firm that designed the site plan drawings for the proposed project. The site plan and elevation drawings were submitted to the Committee of Adjustment as part of the original application.

12Mr. Garzelli was not proffered or qualified as an expert witness in land use planning and provided no land use planning evidence on behalf of the owner in support of the variances requested.

13Mr. Garzelli had submitted a superceded appeal (Form 1) to the TLAB, signed by him and dated the same day as the original appeal form. However, aside from referencing the incorrect Planning Act provisions for the appeal, there did not appear to be any difference in the two appeal forms. As Mr. Garzelli could not recollect why he might have filed a second (incorrect) Form 1, I opted to rely upon the original Form 1.

14Mr. Garzelli acknowledged that he would not be providing any testimony or evidence of a land use planning nature to support how the variances satisfy the four statutory tests mandated by section 45(1) of the Planning Act.

15He did not offer a review or detailed analysis of any of the variances requested but described the proposal in general, and indicated that the depth of the proposed building mirrors the adjacent property.

16Mr. Garzelli did not proffer any evidence as to whether the proposed three-storey building is in compliance with the official plan or zoning by-law, whether it is desirable for the appropriate development or use of the land, or why this new building with a significantly increased footprint and height would be considered minor in nature.

17He also stated that there are a number of new three-storey builds in the immediate vicinity and listed a few addresses. However, Mr. Garzelli did not provide any information or evidence regarding these properties. Mr. Garzelli did not submit a study of the neighbourhood or of the broader area, as directed by the official plan.

18Mr. Garzelli stated that the proposed two-storey garage is intended for the storage of cars, but no testimony was given as to whether this is a permitted use under the zoning by-law, or is minor or is desirable for the appropriate use of the land.

ISSUES AND ANALYSIS

19A hearing before the TLAB is a hearing ‘de novo’ under section 45(18) of the Planning Act, meaning the entire application that was before the Committee of Adjustment is to be considered anew.

20The burden is on the Appellant to prove its case and to satisfy the TLAB that the application before it meets the four statutory tests described in section 45(1) of the Planning Act.

21For the variances to be approved, the TLAB must be satisfied that all four tests are met. Mr. Garzelli’s evidence in this matter was presented primarily in the form of a very general and high-level overview of the proposed structures with no land use planning support for the variances sought.

22Following questions from the presiding panel member regarding the lack of discussion from a policy perspective or how the variances met the statutory planning tests, Mr. Garzelli confirmed that the tribunal could perceive this lack of planning justification as problematic.

23Mr. Garzelli indicated that he was unaware of the requirements at the TLAB to provide planning rationale to support the granting of the requested variances. He also acknowledged that he did not provide any information or evidence to the TLAB that was any different than what had been before the Committee of Adjustment, which had refused the application.

24The 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 not familiar with the TLAB appeal process. However, this does not mean that a party involved in a hearing before the tribunal is excused from the basic responsibilities that must be accorded to the TLAB process.

25The 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.

26While the principles of administrative law, or those of appropriate land use planning, might be foreign to the general public, 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 tests outlined in section 45(1) of the Planning Act.

27That 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; are desirable for the appropriate development or use of the land, and; are they minor in nature?

28It is the Appellant’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 land use planning respect.

29Mr. Garzelli did not address the variances from the perspective of the four tests or any planning policy context. Furthermore, he did not provide evidence as to whether the Appellant’s proposal is consistent with the 2020 Provincial Policy Statement or conforms to the Growth Plan for the Greater Golden Horseshoe.

30While Mr. Garzelli referenced other similar builds in the general area of the subject property, he failed to identify or establish a geographic neighbourhood or a study area for character assessment as directed by the official plan.

31With respect to these other three-storey builds that Mr. Garzelli referred to, the TLAB panel was not provided with any information about those homes, including whether the properties had been granted variances or were approved based on pre-existing conditions.

32The Appellant failed to consider or assess the variances within the policy context of the official plan or zoning by-law. Mr. Garzelli did not consider any applicable official plan policies and he 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.

33I, 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 in any respect upon which the TLAB could authorize or grant the requested variances.

CONCLUSION

34The 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 or that the requested variances are minor or desirable for the appropriate development or use of the land.

DECISION AND ORDER

35The Appeal is refused, and the variances are not authorized. The decision of the Committee of Adjustment issued on June 18, 2024, for the Case File Number referenced above is confirmed.

Y. Herscher

Panel Member