Javadzadeh v. Saffarian, 2025 ONTLAB 302

Toronto Local Appeal Body

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

Date:

2025-02-03

24 224162 S45 15 TLAB

Saffarian (Re), 2025 ONTLAB 302

MOTION DECISION AND ORDER

Issuance Date:

February 3, 2025

PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

JAVAD JAVADZADEH

Applicant(s):

BENYAMIN SAFFARIAN

Property Address:

321 LAIRD DR

COA File No.:

24 196444 NNY 15 MV (A0406/24NY)

TLAB Case File No.:

24 224162 S45 15 TLAB

Hearing Date(s):

February 11, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member T. Kezwer

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

B. Saffarian

Appellant

J. Javadzadeh

M. Mazierski

Party (TLAB)

Leaside Residents Association

Party (TLAB)

City of Toronto

A Sandhu

S. Messina

Participant

K. Surgenor

Participant

R. Jackson

INTRODUCTION AND CONTEXT

1This disposition relates to a Motion brought by the Leaside Residents Association, which is a party to this appeal. The appeal deals with the property municipally known as 321 Laird Drive (the "Property").

2This motion was filed on January 16th. A Notice of Response to Motion was filed on January 24, 2025, on behalf of the Applicant. A Notice of Reply to Response to Motion was filed on January 27, 2025, by the Leaside Residents Association. There is an additional party to this matter, being the City of Toronto (the "City"). No submissions were received from the City, and I am satisfied that the City's legal representatives were served the documents via email.

3The Property has been before the North York Panel of the Committee of Adjustment on three separate occasions.

4On March 3, 2022, the following variances were requested and approved:

1. Chapter 10.20.40.10.(1)(A), By-law No. 569-2013

The permitted maximum height of a building or structure is 8.50 m.

The proposed height of the building is 8.81 m.

2. Chapter 10.20.40.10.(6), By-law No. 569-2013

In the RD zone, for a detached house, the elevation of the lowest point of a main pedestrian entrance through the front wall or a side main wall may be no higher than 1.2 m above established grade.

The proposed height of the main pedestrian entrance is 1.41 m above established grade.

3. Chapter 10.20.40.40.(1)(A), By-law No. 569-2013

The permitted maximum floor space index is 0.45 times the area of the lot.

The proposed floor space index is 0.69 times the area of the lot.

4. Chapter 6.2.3, Zoning by-law No. 1916

The maximum permitted building height is 8.50 m.

The proposed building height is 8.81 m.

5A building permit was issued on or about October 6, 2022. The Property currently contains a new structure that is boarded up. The new structure requires additional minor variances.

6On April 25, 2024, the following variances were requested and denied:

1. Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013

Exterior stairs providing pedestrian access to a building may encroach into a required building setback if the stairs are no wider than 2m.

The proposed rear yard stairs width is 2.16m.

2. Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013

Exterior stairs providing pedestrian access to a building may encroach into a required building setback if the stairs are no wider than 2m.

The proposed front yard stairs have, an enclosed space below, a width of 1.86m.

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

The minimum required front yard setback is 7.02m.

The proposed front yard setback is 5.77m.

4. Chapter 10.20.30.40.(1)(A), By-law 569-2013

The permitted maximum lot coverage is 35% of the lot area.

The proposed lot coverage is 39.3% of the lot area.

5. Chapter 10.20.40.10.(2)(A), By-law 569-2013

The maximum permitted main side walls height is 7.5m.

The proposed main side walls height is 8.5m.

6. Chapter 10.20.40.20.(1), By-law 569-2013

The permitted maximum building length is 17m.

The proposed building length is 18.64m.

7This denial by the Committee of Adjustment is not under appeal before the Toronto Local Appeal Body (the "Tribunal").

8On September 26, 2024, a third application for the Property was heard by the Committee of Adjustment. The following variances were requested and denied:

1. Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013

Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2m.

The proposed front yard stairs have enclosed space below and are 1.86m wide.

2. Chapter 10.20.30.40.(1)(A), By-law 569-2013

The permitted maximum lot coverage is 35% of the lot area.

The proposed lot coverage is 39.55% of the lot area.

3. Chapter 10.20.40.10.(2)(A), By-law 569-2013

The maximum permitted main side wall height is 7.5m.

The proposed main side wall height is 8.33m.

4. Chapter 10.20.40.20.(1), By-law 569-2013

The permitted maximum building length is 17m.

The proposed building length is 17.13m.

Minor Variances Currently Being Sought Before the Tribunal

9The variances requested at the September 6, 2024, Committee of Adjustment hearing were based on a Zoning Notice dated July 2, 2024. This Zoning Notice classified the project as a "3+ Unit – Detached Multiple Projects".

10The Applicant filed an Applicant's Disclosure on November 18, 2024, which removed variance number 3, dealing with main side wall height. This was done due to the Applicant redesigning the roof of the building, and a revised set of plans dated November 17, 2024, were also filed with the Tribunal.

11The Applicant's Disclosure also modified the stair width for variance 1, changing it from 1.86 m to 1.96 m wide. The Applicant's Disclosure noted that

The only reason that the examiner has identified a variance under the stair width provision is because the applicant has excavated the area below the front stairs, and it is the examiner's interpretation that, where the bylaw is silent on excavation (meaning that it does not expressly say that excavation is permitted), the lack of express permission to excavate means that the bylaw prohibits it. As there is no bylaw provision that expressly prohibits excavation below the front stairs, the examiner, who wanted to identify a variance but had no specific provision to tie the variance to, used her discretion to list a variance for excavation below the stairs via reference to the provision that governs the width of encroaching front stairs.

12A Responding Expert Witness Statement Form 21 was filed on January 13, 2025. This witness statement refers to and includes a copy of a new Zoning Notice that was obtained on January 13, 2025. This Zoning Notice also classifies the property as "3+ Unit – Detached – Multiple Projects", and it provides that two minor variances are required. These variances are as follows:

1. Chapter 10.5.40.60.(3)(A)(ii), By-law 569-2013

Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2.0 metres.

The proposed front yard stairs have enclosed space below and are 2 metres wide.

2. Chapter 10.20.40.20.(1), By-law 569-2013

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres.

The proposed building length is 17.13 metres.

13There is a change to variance 1 for this Zoning Notice. The front stair width is now identified as being 2.00m wide instead of 1.96m wide.

14The filings by the Applicant make it clear that there are now two variances being sought before this Tribunal. I note that no amended or additional Applicant's Disclosure has been filed.

Relief Sought by Leaside Residents Association

15The Leaside Residents Association is seeking the following relief:

a. To request the Applicant file a Zoning Notice or a Zoning Waiver to include:

• any changes to the PURPOSE OF THE APPLICATION to summarize the full scope of the proposed development

• any changes to the PURPOSE OF THE APPLICATION to describe the building type of the proposed development

• all of the requested variances for the application(s) related the subject property. This list of variances will include all items included in A0406/24NY and related decisions A0877/21NY and A0114/24NY.

• any missed variances as identified by a Zoning Examiner or an Expert Witness.

b. To request that the Applicant file an amended Document Disclosure document arising from a Zoning Notice or Zoning Waiver.

c. To request that the Applicant file an Expert Witness Statement supplement arising from a Zoning Notice or Zoning Waiver.

2. The timing for receipt of the above items should be no later than January 31, 2024.

3. The Leaside Residents' Association requests that this motion be heard in writing pursuant to Rules 17.6, 24.1, and 24.6 of the TLAB's Rules of Practice and Procedure.

THE LEGISLATIVE POLICY AND FRAMEWORK

16Rule 17 of the Tribunal's Rules of Practice and Procedure permit a Party to bring a Motion seeking specific relief, which Motion shall set out the reasons and grounds to be argued.

17Rule 2.7 of the Tribunal's Rules of Practice and Procedure authorize the Tribunal to do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.

SUMMARY OF EVIDENCE

18The Leaside Residents Association provided two affidavits sworn by Geoff Kettel. One affidavit was filed with the Notice of Motion, and one affidavit was filed with the Notice of Reply to Response to Motion.

19The Leaside Residents Association takes the position that there are additional variances that should be decided at this Tribunal beyond the ones that were considered at the Committee of Adjustment on September 26, 2024, and beyond the two variances that the Applicant has now identified as being sought. The Leaside Residents Association's Party Witness Statement, which was filed on December 27, 2024, identifies 10 variances as being required.

20In addition to the issues raised above, the Leaside Residents Association takes the position that the Tribunal needs to first determine the building type, i.e. whether the structure is a detached dwelling or a triplex. Based on this determination, a new set of variances should be sought.

21The Applicant provided an affidavit filed with its Notice of Response to Motion, sworn by its land use planner, Jonathan Benczkowski. Mr. Benczkowski takes the position that the applicant is only seeking the two variances as outlined previously in this decision. Mr. Benczkowski reviewed the 10 variances that the Leaside Residents Association has identified and provided his opinion that the only variances which are required have been identified by the Applicant. Mr. Benczkowski also takes the position that the proposal before the Tribunal is a triplex, subject to the Multiplex Rules.

ISSUES AND ANALYSIS

Full Scope of Development, Building Type, Requested Variances, and Missed Variances

22The Leaside Residents Association refers to a motion decision by this Tribunal issued on February 9, 2024, Sjuib (Re), 2024 ONTLAB 186, to assert that this Tribunal must adjudicate each Committee of Adjustment application dealing with this Property. However, the cited case stands for the proposition that the Tribunal must adjudicate the entirety of an application that was originally before the Commtitee of Adjustment. It does not stand for the proposition that the Tribunal must adjudicate multiple prior Committee of Adjustment decisions that deal with a Property when only one of those Committee of Adjustment decisions is under appeal.

23In the case at hand, there is only one Committee of Adjustment decision under appeal. This is the decision resulting from the hearing on September 26, 2024. The Tribunal does not have the authority to test minor variances which are not under appeal. The Tribunal will consider the entirety of a proposal including how the requested minor variances fit within that proposal. However, the Tribunal cannot go back to a previous Committee of Adjustment decision which is not under appeal and include variances under that different Committee of Adjustment file with this current matter.

24The Leaside Residents Association takes the position that the Appellant is not seeking the proper minor variances. Determining the need for variance relief is not the responsibility of the Tribunal. This Tribunal determines whether a requested minor variance meets the statutory test outlined in the Planning Act. It is the City zoning staff who determine whether a proposal meets the Zoning By-law, or has the necessary relief from the Zoning By-law. In other words, Applicants are responsible for satisfying themselves that the relief they seek will enable them to build the dwellings or other structures that they are proposing. This is typically done through a Zoning By-law Notice prepared by a City zoning examiner, or the Applicant takes this burden on themselves through a Zoning Waiver.

25This case is a clear example of the aforementioned principle that the Tribunal determines whether a minor variance is legally permissible, and not whether a minor variance is legally required for a proposal. The Applicant obtained minor variance permissions on March 3, 2022, and is now seeking additional minor variances for the dwelling that is being built. The original variances that were obtained are apparently not sufficient for the dwelling that the Applicant has built.

Amended Document Disclosure

26I agree that there should be an amended Applicants' Disclosure clearly stating the two variances being sought before this Tribunal. This is distinct from a Document Disclosure, and it shall be filed prior to the first hearing date on February 11, 2025.

Expert Witness Statement

27The two minor variances being sought are outlined in the Responding Expert Witness Statement Form 21 was filed on January 13, 2025. There is no need for any additional Expert Witness Statement filings.

Heard in Writing

28This motion has been heard in writing pursuant to Rules 2.7, 17.5, 24.1, and 24.6 of the Tribunals' Rules of Practice and Procedure.

CONCLUSION

29The Leaside Residents Association's motion has largely been denied except that the Applicant shall file an amended Applicant's Disclosure outlining the two requested minor variances. This Tribunal can only deal with the Committee of Adjustment file that is under appeal. It cannot add minor variances from a previous Committee of Adjustment file to the current appeal. Moreover, this Tribunal cannot dictate to the Applicant which variances are required for a proposal. The Applicant is responsible for ensuring that any minor variances that it obtains will allow it to build its desired dwelling. If the zoning relief that the Applicant obtains is insufficient, the Applicant will be required to go back to the Committee of Adjustment to seek such further relief as is necessary.

DECISION AND ORDER

30The Tribunal ORDERS that the motion brought by the Leaside Residents Association will be denied and that the hearing of this matter will deal with the two variances being requested by the Applicant. The Applicant shall file an amended Applicant's Disclosure outlining the two requested minor variances prior to the start of the hearing on February 11, 2025.

T. Kezwer

Panel Member