LaRegina v. Vaughan (City), 2022 CanLII 112745

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 24, 2022

CASE NO(S).: OLT-22-003920

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

Appellant: Anthony LaRegina

Applicant: Rocco and Joanne Lillian Cerone

Subject: Minor Variance

Description: Proposing to construct a pool and a covered patio

Reference Number: A273/21

Property Address: 70 Sandy's Drive

Municipality/UT: Vaughan/York

OLT Case No.: OLT-22-003920

OLT Lead Case No.: OLT-22-003920

OLT Case Name: LaRegina v. Vaughan (City)

Heard: October 20, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Anthony LaRegina	Jennifer Meader
Rocco and Joanne Lillian Cerone	Gerard Borean
City of Vaughan	Zaynab Al-waadh

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON OCTOBER 20, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal by Anthony LaRegina (“Appellant”) of Minor Variances (“MV”) approved by the Committee of Adjustment (“COA”) of the City of Vaughan (“City”) for the property municipally known as 70 Sandy’s Drive (“Subject Property”) in Woodbridge.

2The Subject Property is owned by Rocco and Joanne Lillian Cerone (together the “Applicant”). The Applicant applied to the City for a total of nine variances from Zoning By-law No. 01-2021 (“ZBL 01-2021”) and Zoning By-law No. 1-88 (“ZBL 1-88”) to construct an accessory covered patio and outdoor swimming pool.

3Prior to the Hearing, the Parties advised the Tribunal that they had reached a settlement, which they would be presenting to the Tribunal.

SUBJECT PROPERTY

4The Subject Property is in the National Estates residential neighbourhood, which generally consists of large lot, custom-built, estate-type one and two-storey dwellings with mature landscaping and features modest to large development setbacks. It currently contains a two-storey single-detached brick dwelling with attached three-car garage and concrete circular driveway, as well as a one-storey existing pool house attached to the rear of the dwelling.

5The Subject Property is a corner lot, which is irregular in shape and is situated along the apex of a curve on Sandy’s Drive, abutting two parts of the same street. It has an area of 4,077 square metres (“sq m”), with a frontage of 124.9 metres (“m”) on Sandy’s Drive. The dwelling is set back 15.1 m from Sandy’s Drive, with side yard setbacks of 9.84 m (north yard) and 20.4 m (west yard).

6The Subject Property is:

a. located within the “Community Areas” of the City’s Urban Structure in accordance with Schedule 1 of the City’s Official Plan (“OP”);

b. zoned Estate Residential Zone (Established Neighbourhood) and subject to the provisions of Exception 14.82 under ZBL 01-2021;

c. zoned Rural Residential (“RR”) and subject to the provisions of Exception 9(178) under ZBL 1-88; and,

d. serviced by existing municipal water and wastewater systems.

LEGISLATIVE FRAMEWORK

7In determining this appeal brought under s. 45 of the Planning Act (“Act”), it must be noted that this is a hearing de novo. The Applicant bears the onus of demonstrating that the MVs meet the following four tests:

a. maintain the general intent and purpose of the OP?

b. maintain the general intent and purpose of the ZBL?

c. are minor?

d. are desirable for the appropriate development or use of the land?

8In addition, s. 3(5) of the Act requires that decisions of the Tribunal are consistent with the Provincial Policy Statement (“PPS”) and conform to the Growth Plan for the Greater Golden Horseshoe (“GP”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

HEARING

9The sole witness called at the Hearing was Jonathan Sasso, a Land Use Planner, who appeared on behalf of the Applicant. Upon review of his qualifications and Acknowledgement of Expert’s Duty form, the Tribunal qualified Mr. Sasso to provide opinion evidence in land use planning.

10The Tribunal received and marked the following Exhibits:

Exhibit 1: Document Disclosure of Jonathan F. Sasso

Exhibit 2: Expert Witness Statement of Jonathan F. Sasso

Exhibit 3: Revised List of Variances

Exhibit 4: Proposed Conditions of Approval

Exhibit 5: Revised Proposed Conditions of Approval

11Mr. Sasso explained that ZBL 1-88 was enacted by the City Council on September 19, 1988 and over the past 30+ years, it has been amended through numerous general amendments and site-specific exemptions. The City’s Comprehensive ZBL 01-2021 was enacted by City Council on October 20, 2021, but has been appealed in its entirety to the Tribunal in a separate matter and as such, is not yet in force and effect. At this time, the City directs that all applications be examined under both zoning by-laws.

12The following revised variances are being sought:

ZBL 01-2021

1. In any residential zone, the maximum lot coverage of all accessory buildings and residential structures excluding an accessory detached garage shall be 10% or 67 sq m, whichever is less. To permit a maximum lot coverage of 198.4 sq m for Residential accessory structures.

2. In any Residential zone, the maximum height of an accessory building and residential accessory structure shall be 3.0 m. To permit a maximum height of 5.67 m to the top of the roof for a residential accessory structure.

3. An outdoor swimming pool shall only be permitted in the rear yard of a lot. To permit an outdoor swimming pool in the exterior side yard of the lot.

4. In no case shall the outdoor swimming pool be located closer to an exterior side lot line than the dwelling. To permit an outdoor swimming pool to be located closer to the exterior side lot line than the dwelling.

ZBL 1-88

5. The maximum permitted lot coverage is 10%. To permit a lot coverage of 16.2% (Dwelling 7.4%, Pool House 4.0%, and Covered Patio 4.8%).

6. A minimum rear yard of 15 m is required. To permit a minimum rear yard of 9.5 m to an accessory structure.

7. The percentage of the lot area covered by all accessory building and structures other than those attached to the main building shall not exceed 10% or 67 sq m, whichever is lesser. To permit a maximum lot coverage of 198.4 sq m for accessory structures.

8. The maximum height of an accessory building and structure measured from the average finished ground level to the highest point of said structure shall be 4.5 metres. The nearest part of the roof shall not be more than 3 m above average finished grade. To permit a maximum height of 5.67 m to the top of the roof for a residential accessory structure.

9. A private swimming pool shall be constructed only in the rear yard. To permit a swimming pool in the exterior yard.

13Mr. Sasso gave an overview of the proposal including several key changes which resulted in the settlement. As outlined in revised proposed condition #4: the washroom, shower and pool equipment room will be relocated from the western portion of the proposed structure to another location; there are defined setbacks of 9.5 m at the northwest corner and 11.7 m at the southwest corner; and there will be no doors or openings (other than windows) along the western wall of the proposed structure. In addition, privacy and overlook are addressed by revised proposed condition #5, which provides for reasonable and substantial visual screening from the adjacent (Appellant’s) property.

14For the reasons that follow, the Tribunal determines that the four tests under s. 45(1) of the Act have been met and that it is appropriate to permit the revised variances, subject to the revised proposed conditions.

[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html), PROVINCIAL POLICY STATEMENT AND GROWTH PLAN

15It was Mr. Sasso’s opinion that the proposal has regard to matters of Provincial interest in s. 2 of the Act, specifically subsections a), e), f), h), j), n), o), p), q), and r).

16He opined that the proposed MVs are consistent with the PPS as they:

provide for appropriate development that allows for the efficient use of land that takes into account existing building stock and uses … The proposal is consistent with the policies and direction provided for in the PPS as it promotes a form of development within an existing built-up area, which is compatible with adjacent land uses and building forms and would utilize existing public service infrastructure.

17Mr. Sasso was also of the opinion that the proposal conforms with the objectives of the GP:

in supporting the achievement of complete communities including a full range of housing and related uses … the Subject Property is located within the delineated built boundary of the City … and is currently serviced by existing municipal water and wastewater systems which are key considerations in the accommodation of growth.

Four Tests under [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

18In terms of the OP, Mr. Sasso spoke to s. 2.2.3.2 regarding Community Areas, which are to remain relatively stable but permit new “development that respects and reinforces the existing scale, height, massing, lot pattern building type, orientation, character, form and planned function of the immediate local area…”

19He also highlighted s. 9.1.2.2 which outlines the criteria to be considered when considering MV applications. Mr. Sasso explained how the proposal is consistent with s. 9.1.2.2, including (but not limited to) the following:

a. will not change the patterns of lots, streets or blocks;

b. no alteration to the size and configuration of the existing lot;

c. respects and reinforces the prevailing building type of single family detached dwellings;

d. covered patio is not visible from the streetscape and is consistent with the placement and orientation of other existing accessory buildings in the neighbourhood;

e. proposed height will appear as an addition to the existing pool house and will fit in well with the building heights found in the neighbourhood;

f. consistent with the existing prevailing setbacks of buildings from the street;

g. continues to reinforce the prevailing patterns of rear yard setbacks to accessory structures and rear landscaped open space;

h. respects the presence of mature trees and the general landscape character of the area; and

i. will not significantly alter the existing topography and drainage patterns.

20Mr. Sasso was of the opinion that the proposal maintains the general intent and purpose of the OP.

21Mr. Sasso highlighted that:

the Covered Patio is identified as an accessory building because it is not formally attached to the existing Pool House and Dwelling … [The MV application] will maintain the existing single-family detached residential dwelling on the Subject Property while establishing a new accessory building (Covered Patio) and outdoor swimming pool. The proposed development is consistent with the permitted uses outlined in Section 4.1 and 4.2 of [ZBL 1-88].

22Variance #5 proposes to permit a maximum lot coverage of 16.2% whereas 10% is permitted. Mr. Sasso opined that the proposed variance is appropriate and compatible with the existing surrounding lots and dwellings. He stated that the covered structure is behind the dwelling and therefore not obvious and is also additionally screened to the surrounding neighbours with landscaping and mature trees. Mr. Sasso stated that given the configuration, location and surrounding neighbourhood “the proposed maximum lot coverage of 16.2% remains consistent and compatible with the existing ranges in the neighbourhood area and does not signal an overdevelopment of the Subject Property.” Mr. Sasso also explained that if ZBL-01-2021 was in-force, it would not require any variance as it does not regulate maximum coverage for that zone.

23Regarding Variance #6 which provides for a rear yard setback of 9.5 m to an accessory structure whereas 15 m is permitted, Mr. Sasso highlighted that through the settlement, this setback had increased from the original request which was 6.035 m. He testified that this variance would provide for ample separation distance from the covered structure to the neighbouring property, and that there would be no issues of overlook, privacy, shadowing, drainage, access or maintenance.

24With respect to Variances #1 and #7, Mr. Sasso explained that the intent in limiting total coverage of accessory buildings and structures is to “regulate the size of accessory features so that they remain proportionate to the lot and primary dwelling and do not overwhelm the rear yard …” He opined that “the ancillary structure maintains a subordinate size and function … [and the] proposal results in an adequate amount of the site to remain unencumbered by accessory structures and allows for ample landscape and open amenity space”.

25Variances #2 and #8 relate to maximum height. Mr. Sasso opined that given “the separation distance, one storey height, and the elevation of the patio structure in relation to [the] primary dwelling … the proposal will not have a visual impact on neighbouring properties and the exceedance in height, is … negligible.”

26Mr. Sasso explained that Variances #3 and #9 would permit the swimming pool to be located in the exterior yard of the lot, whereas swimming pools are only permitted in the rear yard. He highlighted that the Subject Property is an irregular shaped corner lot and explained that the exterior lot already functions as recreation and amenity space and is effectively used as the property’s rear yard. Mr. Sasso opined that the pool:

maintains a suitable relationship and will not create an adverse visual impact to the neighbouring property. The pool will also be well screened from the streetscape through existing mature trees along the edges of the street in order to maintain privacy … [and the pool] complies with all rear yard and exterior yard setback requirements ….

27Variance #4 proposes that the swimming pool will be located closer to the exterior lot line than the existing dwelling. Mr. Sasso opined that this is a technical interpretation of ZBL 01-2021 which:

does not capture the specific characteristics of the site (i.e., a side yard which serves and functions as a rear yard) … The location of the pool does not result in a built form that is out of character with the Neighbourhood Area and/or the immediate adjacent properties nor does it alter the appearance of or create visual inconsistencies with the streetscape.

28It was Mr. Sasso’s overall opinion that both individually and collectively, the variances maintain the general intents and purposes of the applicable Zoning By-laws.

29Mr. Sasso testified that the test for an application being ‘minor’ did not mean there would be ‘no’ impact. It was his opinion that the “variances do not create any unacceptable adverse impacts upon the streetscape or adjacent properties of a planning nature”.

30Regarding shadow impact, lack of privacy and overlook, it was Mr. Sasso’s opinion that:

the spectre of overshadow on the abutting realm is minimal … the proposed Covered Patio provides for a building separation distance … to the existing dwelling located at 38 Sandy’s Drive which is consistent with the spacing, and character of accessory building and structures in the neighbourhood …. Based on the orientation and configuration of the covered patio, which has its entrance and opening facing the south … overlook onto 38 Sandy’s Drive is not expected.

31In addition, Mr. Sasso testified that the proposed buffering and screening, would provide ample separation and privacy, and that any perceived impacts would be reduced if not eliminated. It was his overall opinion that the proposed variances, individually and collectively are minor in nature.

32It was Mr. Sasso’s opinion that the proposal is “in keeping with the character and mix of accessory residential building/structures and uses within the Neighbourhood Area where such structures are common.” He further opined that the proposal is desirable as it:

represents a reasonable, coherent, and appropriate design … compatible for the development of the lands. … [and that] the development will produce an attractive and appropriately sized accessory building and outdoor pool that fits with the physical pattern of the Neighbourhood Area.

CONCLUSION

33Based on the totality of the uncontroverted evidence presented, the Tribunal agrees that the revised variances, subject to the revised proposed conditions, represent good land use planning, have regard to matters of Provincial interest in s. 2 of the Act, conform with the GP and OP and meet the four tests.

34The Tribunal had regard for the decision of the COA as well as the information considered by it.

ORDER

35The TRIBUNAL having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required,

36THE TRIBUNAL ORDERS that the Appeal is dismissed and the variances (found in paragraph 12 above) to By-law 01-2021 and By-law 1-88 are authorized subject to the following conditions:

i. The Owner/Applicant shall submit the final Lot Grading and/or 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.

ii. The Owner/Applicant shall provide a brief to demonstrate the appropriate LID (low-impact development) measures and show the measures taken in the drawing to the satisfaction of the Development Engineering Department to address the increased lot coverage from 10% to 16.2% in order to mitigate potential impacts on the municipal storm water system.

iii. The Owner/Applicant must obtain a private property tree removal/protection permit from the Forestry Division of the Parks, Forestry, and Horticultural Operations Department.

iv. Notwithstanding Variance #6, the Owner/Applicant shall maintain a setback of 9.5 metres at the northwest corner of the proposed structure and a setback of 11.7 metres at the southwest corner of the proposed structure, by relocating the washrooms, shower, and pool equipment room from the west portion of the proposed structure to elsewhere on the building; all substantially as depicted in the sketch attached hereto as ‘Schedule A’ and specifically requiring that there shall be no openings or doors, other than windows along the western building wall.

v. The Owner/Applicant shall submit a Landscape Plan to the satisfaction of the City’s Parks, Forestry, and Horticultural Operations Department, which shall be prepared by a qualified person and shall show the location and species of plantings to be installed between Tree Nos. 47 and 54, as identified on Figure 1 of Arborist Report Addendum prepared by Williams & Associates dated June 21, 2022. The plantings shall provide reasonable and substantial visual screening of the pool and accessory structures from the adjacent property at 38 Sandy’s Drive.

vi. The Owner/Applicant shall provide a revised set of architectural plans to the City.

“S. Bobka”

S. bobka

MEMBER

Ontario Land Tribunal

Website: www.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.

OLT-22-003920 – Schedule A