Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 09, 2021
CASE NO(S).: PL200149
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Olton Hysenbegas
Applicant: Louisa Benoliel-Benitah
Subject: Minor Variance
Variance from By-law No.: 1-88
Property Address/Description: 2 Forest Lane Drive
Municipality: City of Vaughan
Municipal File No.: A116/19
OLT Case No.: PL200149
OLT File No.: PL200149
OLT Case Name: Hysenbegas v. Vaughan (City)
Heard: February 26, 2021 by video hearing and June 17, 2021 by telephone conference call
APPEARANCES:
Parties
Counsel*/Representative
Olton Hysenbegas
Marc Kemerer*
Louisa Benoliel-Benitah
Ryan Kore
City of Vaughan
Gurnick Perhar*
MEMORANDUM OF ORAL DECISION DELIVERED BY M. A. SILLS ON FEBRUARY 26, 2021 AND JUNE 17, 2021 AND ORDER OF THE TRIBUNAL
1This was a settlement hearing in the matter of an appeal by Olton and Selda Hysenbegas (the “Appellants”) of the decision of the City of Vaughan (“City”) Committee of Adjustment (“COA”) to approve a minor variance application for the property owned by Louisa Benoliel-Benitah (the “Applicant”) and located at 2 Forest Lane Drive, in Thornhill (the “subject property”).
2The subject property is an irregular-shaped corner lot located at the intersection of Forest Lane Drive and Concord Road and currently maintains a single family home. The Applicant is proposing to install an in-ground swimming pool and construct an ancillary shed in the exterior side yard.
3The Appellants are the owners of an abutting property located at 141 Concord Road.
4The subject property is designated Low-rise Residential by the City Official Plan (“OP”) and is zoned Residential Three (R3) Zone by By-law No. 1-88, as amended.
5The Applicant is seeking approval for minor variances to the zoning standards, as follows:
To permit a minimum of 45.79% front yard landscaping, whereas a minimum of 50% front yard landscaping is required, 60% of which shall be comprised of soft landscaping;
To permit the accessory structure (shed) not to be located in the rear yard only, whereas an accessory building shall be located in a rear yard only;
To permit a minimum exterior side yard setback of 1.63 metres (“m”) to the accessory structure (shed), whereas a minimum exterior side yard setback of 4.5 m is required to the accessory structure (shed);
To permit a private swimming pool not to be located entirely in the rear yard, whereas a private swimming pool shall be located entirely in the rear yard;
To permit a minimum rear yard setback of 1.22 m to the swimming pool, whereas a minimum rear yard setback of 1.5 m is required to the swimming pool; and
To permit a minimum exterior side yard setback of 3.09 m to the swimming pool, whereas a minimum exterior side yard setback of 4.5 m is required to the swimming pool.
6The City’s Development Planning Department recommended that the minor variances be approved.
7The application was adjourned at the COA meeting held on December 12, 2019, to allow the Applicant to address concerns raised by local residents and the City’s Development Engineering department concern about sightlines.
8The application was again before the COA on February 6, 2020, at which time it was approved subject to certain conditions.
Settlement Proposal
9The Applicant and the Appellants entered into and duly constituted Minutes of Settlement (the “MOS”) and are now requesting that the Tribunal approve the application substantially in accordance with a revised site plan (the “Revised Site Plan”) that effectively increases the size of the daylight triangle (the “Triangle”), and is subject to certain conditions, including that no plantings other than grass will be permitted on the Triangle (to increase traffic and pedestrian safety along Concord Road), and that lot grading and servicing approvals must be obtained prior to any work taking place on the property.
10Michael Di Febo, the City planner responsible for overseeing the application, was appearing under summons by the Appellant. He is a registered professional planner and a Member of the Canadian Institute of Planners and the Ontario Professional Planners Institute. Based on his planning analysis of the application, he recommended to the COA that the application be approved.
11In his affidavit filed with the Tribunal and marked Exhibit 1, Mr. Di Febo confirms he has reviewed the conditions of approval contained in the MOS and it is his opinion the revisions to the proposal are minor in nature.
12It is his position that the revised application and the proposed conditions are consistent with his original opinion that the variances requested meet the four tests of a minor variance and represent good planning. However, it is also his opinion that should the Tribunal approve the revised application subject to the stated conditions, the Tribunal’s written Order should be withheld until a Revised Site Plan which properly depicts the revised Triangle and side and rear yard setbacks (Variances 3, 5 and 6) has been reviewed by the City and provided to the Tribunal with the consent of the City, the Appellant and the Applicant.
13The Tribunal, having reviewed the file materials accepts the uncontested planning opinions of Mr. Di Febo and is satisfied that the variances, subject to the fulfillment of the prescribed conditions, maintain the general intent and purpose of the Town’s OP and comprehensive zoning by-law. The variances facilitate development on a residential property in a manner that is appropriate and desirable and will not create unacceptable adverse impacts for other property owners within the neighbourhood or compromise public safety.
14The Tribunal finds that the variances, subject to the fulfillment of the recommended conditions, satisfy the criteria established by s. 45(1) of the Planning Act, and overall, the development being proposed maintains the principles of good land use planning.
15In response to an inquiry from the Tribunal about how long he estimates the City will require to review the Revised Site Plan, Mr. Di Febo suggested that it could be completed within 30 days following receipt of the document.
16The Tribunal subsequently convened a telephone conference call (“TCC”) on June 17, 2021 for the purpose of receiving an update on the status of the City’s review of the Revised Site Plan. The Applicant did not join the TCC, but Mr. Di Febo reported that the City still had not received an appropriate Site Plan. At the direction of the Tribunal, Mr. Di Febo agreed to contact the Applicant and advise him of the Tribunal’s requirement that the requisite Revised Site Plan be submitted to the City within 10 days. The Revised Site Plan approved by the parties was subsequently received and reviewed by the City and forwarded to the Tribunal on June 25, 2021.
ORDER
17The Tribunal, having been asked to consider an application which has been amended from the original application, the Tribunal has determined, in accordance with s. 45(18.1.1) of the Act, that the amendments are minor and that no further notice is required.
18The Tribunal orders that the appeal is allowed in part and the variances set out in paragraph 5 to this Decision and Order are authorized subject to the following conditions:
The construction of the pool and the ancillary shed be undertaken only in accordance with the plans appended hereto as Attachment 1, which increase the size of the daylight Triangle along Concord Road to measure 4.659 m x 7.772 m x 8.580 m and confirm that the proposed side and rear yard measurements remain unchanged.
No planting, other than grass, can occur on the Triangle.
The Applicant shall submit the Lot Grading and Servicing Plan to the Development Inspection and Lot Grading Division of the City’s Development Engineering Department for final lot grading and/or servicing approval prior to any work being undertaken on the property.
“M.A. Sills”
M.A. SILLS
vice-chAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.