Wheller (Re), 2025 ONTLAB 298

Toronto Local Appeal Body

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

Date: 2025-01-24

24 214901S45 03 TLAB

Wheller (Re), 2025 ONTLAB 298

INTERIM ORDER

Issuance Date: January 24, 2025

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): B. WHELLER

Applicant(s): ACMENG ENGINEERING CONSULT

Property Address: 186 Thirtieth St

COA File No.: 24 151677 WET 03 MV (A0218/24EYK)

TLAB Case File No.: 24 214901 S45 03 TLAB

Hearing Date(s): January 17, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By: TLAB Panel Member: A. BROWN

REGISTERED PARTIES AND PARTICIPANTS:

People Type First Initial. Last Name Representative

Owner/ Appellant B. WHELLER M. MAZIERSKI

Party CITY OF TORONTO U. GAUTAM

Participant T. TEKAVCIC

INTRODUCTION AND CONTEXT

1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s decision dated August 29, 2024, refusing two variances sought to construct a warehouse at 186 Thirtieth Street in Toronto (the subject property).

2The property is zoned Employment Industrial “E1.0”, under Zoning By-law 569-2013, which permits a warehouse use as-of-right. Furthermore, the subject property is located on lands designated as “Core Employment Area” in the Toronto Official Plan, which permits warehousing uses, among other industrial and employment uses.

3The proposed variances requested by the Appellant before the Committee of Adjustment were in respect of the side yard setback along the north lot line and width of the driveway:

Section 60.20.40.70.(2), By-law 569-2013 The minimum required side yard setback is 3 m. The new warehouse will be located 0.3 m from the north side lot line.

Section 60.5.100.1.(1)(B), By-law 569-2013 A driveway may have a maximum width of 11 m for a minimum depth of 3 m measured from the lot line abutting the street. The new driveway will have a width of 11 m for a depth of 7.5 m.

4On September 18, 2024, the Appellant submitted a Notice of Appeal (Form 1) to the Toronto Local Appeal Body (TLAB).

5The Toronto Local Appeal Body issued a Notice of Hearing for this matter, setting the date for January 17, 2025 and setting out the required submission dates for Applicant Disclosure, Expert Witness Statements, Witness Statements, etc.

6On October 29, 2024, the TLAB received the Appellant’s Disclosure and revised Plans, in which the requested variances were changed and clarified. The requested side yard setback variance was increased from .30 metre to .60 metre. The variance in respect of the driveway would permit a width of 3.65 metres, whereas the Zoning By-law requires a width of 6.0 metres. This pertains to the driveway portion along the south wall of the proposed warehouse. The Appellant also filed an Expert Witness Statement.

7Revised Plans were filed in a Document Disclosure received by the TLAB on December 11, 2024.

8An amended Expert Witness Statement by David Igelman, the Appellant’s planning expert, was filed with the TLAB on January 17, 2025. The amended Expert Statement explains that, on January 7, 2025, a revised zoning notice was issued by the City of Toronto, and it indicated a new variance which was not identified in the Applicant’s Disclosure or the first zoning notice. The application proposes a loading space in the front yard, whereas a loading space is not permitted in a front yard as per the Zoning By-law.

9The variances now sought before the TLAB are as follows:

Section 60.20.40.70.(2), By-law 569-2013 The minimum required side yard setback is 3m. The new warehouse will be located 1.21m from the north side lot line. The new exterior stairs will be located 0.3m from the north side lot line.

Section 60.5.100.1.(1)(A), By-law 569-2013 A driveway must have a minimum width of 6.0 m The proposed driveway is 3.65 m.

Section 60.20.90.10.(1), By-law 569-2013 A loading space may not be in a front yard. The proposed loading space will be located in the front yard.

10Upon receiving the updated Zoning Notice, the Appellant’s legal representative advised the TLAB that the Appellant would be requesting an adjournment of the hearing on January 17, 2025, and that the City and the Participant did not object to the adjournment.

11Accordingly, the January 17, 2025 Hearing date was converted to a Prehearing Conference at the direction of the presiding Panel Member as permitted by Rule 21.1 of the TLAB’s Rules of Practice and Procedure (Rules). Rule 21.6 outlines matters that can be addressed in a Prehearing, including procedural issues in order to:

(h) deal with any other matter that may assist in a fair, cost-effective and expeditious resolution of the issues.

12The Prehearing Conference primarily dealt with the request for an adjournment on consent and the issue of whether further notice is required pursuant to s.45(18.1) of the Planning Act, given that the subject application on appeal has been amended, or whether no further notice should be required, pursuant to s.45(18.1.1).

13The presiding Panel Member heard statements from the Parties and advised that the TLAB would issue a written interim Order in this regard.

THE LEGISLATIVE AND POLICY FRAMEWORK

14Provincial 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.

15Provincial 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.

16Variance – 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.

17Planning Act. S.45(18)

s.45(18) The Tribunal may dismiss the appeal and may make any decision that the committee could have made on the original application.

(18.1) On an appeal, the Tribunal may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to the persons and public bodies who received notice of the original application under subsection (5) and to other persons and agencies prescribed under that subsection.

(18.1.1) The Tribunal is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor.

(18.2) Any person or public body who receives notice under subsection (18.1) may, not later than thirty days after the day that written notice was given, notify the Tribunal of an intention to appear at the hearing or the resumption of the hearing, as the case may be.

(18.3) If, after the expiry of the time period in subsection (18.2), no notice of intent has been received, the Tribunal may issue its order.

(18.4) If a notice of intent is received, the Tribunal may hold a hearing or resume the hearing on the amended application or it may issue its order without holding a hearing or resuming the hearing.

ISSUES AND ANALYSIS

18Two questions were raised at the Prehearing Conference.

Notice Under Section 45(18.1)

19The first question is whether or not the Tribunal should exercise its discretion under s.45(18.1.1) of the Planning Act. This provision permits the Tribunal to proceed to hear and decide an Appeal without further notice under s.45(18.1) if, in its opinion, the amendment to the original application is minor.

20Mr. Mazierski, counsel for the Appellant, submitted that the amendments to the original application are minor and that the Tribunal should not require a new Notice of Hearing. As mentioned, the first two amendments pertain to the proposed side yard setback and to the width of the driveway. The more recent amendment pertains to the proposal that would permit a front loading space. Should these amendments be circulated as required by s.45(18.1), or should they be exempt from circulation under s.45(18.1.1)?

21Mr. Mazierski submitted that the proposed front yard loading space has always been clear from the plans submitted to the Committee of Adjustment and in the revised plans filed with the Tribunal. Those plans show a large loading door at the front and at the rear of the proposed building, as well as open space at the front of the proposed building. Accordingly, in the Appellant’s view, those persons who received notice of the original COA application would have been aware that there would be loading at the front. Interested parties could also access the TLAB Application Information Centre website to keep informed about the submissions from the Parties. Moreover, it is submitted that the other amendments (side yard setback and driveway) are also minor.

22The City of Toronto and the Participant Tekavcic did not take a position on whether or not there should be an exemption under section 45(18.1.1).

23The Appellant submitted that the TLAB should not require a Notice to be sent under s.45(18.1), and should schedule a new hearing date in order to allow the City and the Participant a reasonable period of time to respond to the revised Application and revised Expert Statement.

24However, I find that the third variance proposal, to permit a front yard loading space, is not a minor amendment to the Application. The original and revised Plans do indeed show the front loading door and front yard space, but the original Notice of the Application to the Committee of Adjustment did not make recipients aware that the Zoning Bylaw prohibits a front yard loading space.

25Although every case is decided on its own merits, in determining whether an amendment is minor for the purposes of s.45(18.1.1) the Tribunal considers such factors as whether the number of proposed variances has been reduced, whether they have been changed to respond to concerns raised by Parties or Participants and are thus “improvements”, whether they are less impactful, whether they are insignificant, and/or whether they are beneficial to the public interest.

26In the matter at hand, the proposed amendment to permit a front yard loading space does not sufficiently meet any of these criteria and is not minor. The neighbours should have an opportunity to be made aware of it and to respond. At the same time, they can be made aware of and respond to the other amendments, as well.

CONCLUSION

The Adjournment Request

27In light of the above, the Hearing is adjourned “sine die” and a new Notice of Hearing will be issued pursuant to s.45(18.1).

DECISION AND ORDER

28TLAB staff are directed to schedule a new Hearing date to hear the subject Appeal and to issue a new Notice of Hearing formalizing the date of the new Hearing and containing revised requisite due dates as established by the Tribunal.

29TLAB staff are directed to consult with the Parties (or their Legal Representatives) and the Participant prior to finalizing the new Hearing date.

30The Parties and Participant are not required to resubmit Forms, plans, statements, etc. that they have already filed with the Tribunal. The Notice of Hearing shall allow the City of Toronto and Participant Tekavcic 30 days to respond to the amended Application and David Igelman’s revised Expert Witness Statement, and the Appellant shall be accorded 10 days to submit a reply (if any).