Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 30, 2022
CASE NO(S).: OLT-22-002028
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Rossana Lopez & Gilson Eduardo
Applicant: Giuseppe Allevato
Subject: Minor Variance
Description: To permit the existing cabana, installation of proposed privacy screens and the location of the existing pool equipment in the rear yard
Reference Number: A168/21
Property Address: 40 Johnswood Crescent
Municipality/UT: Vaughan/York
OLT Case No.: OLT-22-002028
OLT Lead Case No.: OLT-22-002028
OLT Case Name: Eduardo v. Vaughan (City)
Heard: October 13 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Giuseppe Allevato | Martin Mazierski |
| Rossana Lopez and Gilson Eduardo | Julian Heller |
| City of Vaughan | Zaynab Al-Waadh |
DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision determines the appeal filed by Rossana Lopez and Gilson Eduardo pursuant to s. 45 (12) of the Planning Act against the City of Vaughan (the “City”) Committee of Adjustment (the “COA”) decision to approve the minor variance application requesting relief from the City of Vaughan Zoning By-law No. 1-88, as amended.
2The Subject Property (the “SP”) is municipally known as 40 Johnsonwood Crescent.
3The SP is located north of Rutherford Road, between Weston Road and Jane Street. The SP comprises a lot area of 384.3 square metres (“sq m”) with a lot frontage of 12.6 metres (“m”) and a lot depth of 30.5 m. The SP contains an existing 2 storey dwelling. The entire rear yard has been hardscaped which includes an inground swimming pool, a hot tub and the cabana and concrete pad containing the pool equipment.
4The SP is located in an established residential neighbourhood. There are three abutting lots are of the same general size and shape. The Appellant lives at one of these abutting properties – 11 Wheatfield Drive.
5Giuseppe Allevato (the “Applicant”) applied for the following minor variances on July 23, 2021 to the City to permit reduced setbacks for a cabana and privacy screens and an increased encroachment into the rear yard for pool equipment. The cabana, privacy screens and the pool equipment were installed without a building permit and are located close to the side and rear yard lot lines of the SP.
6A revised application was submitted on November 4, 2021 purposing to enclose the pool equipment so that it could be considered as a part of the cabana rather than “ground-mounted equipment” which is subject to different encroachment standard of 1.5 m into the rear yard as per s. 3.14(h) of the Zoning By-law.
7The revised application was seeking approval of the following variances:
| By-law Requirement | Proposal |
|---|---|
| 1. A minimum setback of 2.31 m is required for the architectural element to the rear lot line. (4.1.1.K) | 1. To permit a minimum setback of 0.62 m for the proposed privacy screens to the rear lot line. |
| 2. A minimum setback of 2.31 m is required for the architectural element to the side lot line. (4.1.1.K) | 2. To permit a minimum setback of 0.20 m for the proposed privacy screen to the side lot line. |
| 3. A minimum rear yard setback of 7.5 m is required. (Schedule A1) | 3. To permit a minimum rear yard setback of 0.34 m for the proposed accessory structure (Cabana). |
| 4. A minimum side yard setback of 1.2 m is required. (Schedule A1) | 4. To permit a minimum side yard setback of 0.41 m for the proposed accessory structure (Cabana). |
8On December 8, 2021, the revised Application came before the COA. The Staff Report recommended approval of the application subject to two conditions:
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. The Owner/Applicant shall demonstrate appropriate LID (“Low Impact Development”) measures and include the measures in the lot grading drawing to the satisfaction of Development Engineering to mitigate the impacts of additional storm runoff.
The Owner/Applicant will require to arrange a site visit with Development Engineering reviewer or submit acceptable evidence showing the proposed measures taken for storm water drainage works and does not create any ponding.
9Upon hearing the written and public comments including comments from the Appellant, the COA approved the revised application. The Notice of Decision was published on December 16, 2021 and the Appellant submitted a notice of appeal to the Ontario Land Tribunal on December 21, 2021.
LEGISLATIVE FRAMEWORK
10An appeal pursuant to s. 45 of the Planning Act (the “Act”) is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variances:
(a) maintains the general intent and purpose of the official plan (“OP”);
(b) maintains the general intent and purpose of the Zoning By-law (“ZBL);
(c) is minor in nature; and
(d) is desirable for the appropriate development or use of the land building or structure.
11In addition, s. 3(5) of the Planning Act requires that a decision of the Tribunal affecting a planning matter, in this case the application for variance, must be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest, as well as regard for the decision of the COA and the information considered by it in the course of making that decision.
ISSUES AND EVIDENCE
12The Tribunal heard from three witnesses. On behalf of the Applicant, Jonathan Benzkowski, a Land Use planning Consultant from Sol-Arch who was qualified to give opinion evidence in the area of land use planning. On behalf of the Appellant, Allan Ramsay was qualified to give opinion evidence in the area of land use planning. Also on behalf of the Appellant was Howard Patlik, who was qualified to give opinion evidence in the area of environmental noise impacts and vibration analysis.
13The Tribunal received the following to be marked as Exhibits for the hearing:
Exhibit No. 1: Witness Statement of Jonathan Benzkowski
Exhibit No. 2: Witness Statement of Allan Ramsay
Exhibit No. 3: Sound/Noise Report from J.E. Coulter
Exhibit No. 4: Document Discloser – Giuseppe Document Book
Exhibit No. 5: Lopez-Eduardo Document Book
14Both of the land use planners agreed that the minor variances before the Tribunal are a matter of local interest. The experts agreed that the Application is consistent with the PPS and conforms with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) (the “GP”).
Maintain the General Intent and Purpose of the OP
15Mr. Benzkowski took the Tribunal to s. 2.2.3.2 of the OP which states that:
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 is permitted, as set out in the policies in Chapter 9 of this Plan.
16Mr. Benzkowski opined that the proposal is sensitive to respect the physical character of the neighbourhood which includes numerous cabanas and other architectural features.
17Mr. Ramsay opined that the proposal does not fit into the physical character of the neighbourhood and that the size of the cabana does not fit in with the other cabana structures in the neighbourhood.
18Mr. Benzkowski opined that under s. 9.1.2.2 of the OP identified criteria that are to be used to evaluate if the proposal meets the intent of the OP. The criteria that meet the proposal are as follows:
That in Established Community Areas, new development as reflected in any zoning, variance, subdivision, consent or part lot control exemption application, will be designed to respect and reinforce the existing physical character and uses of the surrounding area, specifically respecting and reinforcing the following elements:
e. the heights and scale of adjacent and immediately surrounding residential properties;
g. the pattern of rear and side-yard setbacks;
i. the existing topography and drainage pattern on the lot and in the adjacent and immediately surrounding properties.
19In his opinion, Mr. Benzkowski stated that since the Proposal meets the above criteria in s. 2.2.3.2 and s. 9.1.2.2 of the OP, the proposal does conform to the general intent and purpose of the OP.
20Mr. Ramsay opined that even though there are other like structures in neighbouring properties, the size and location relative to the Appellant’s property is the issue. As such, the Proposal does not meet the criteria of 9.1.2.2. The Proposal does not meet the general intent and purpose of the OP.
Maintain the General Intent and Purpose of the ZBL
21The general intent and purpose of ZBLs are to ensure that compatible built forms are within the area of the ZBL and that there is consistency with those built forms. In Mr. Bezkowski’s opinion, the proposal does maintain this intent and explained each variance request in further detail.
22With regards to the architectural element setback, Mr. Benzkowski gave opinion that any impact from the feature is mitigated by how they are spaced apart. The feature is not continuous and will not create any undue impacts.
23With regards to the rear yard setback to the cabana, Mr. Benkowski opined that the rear yard setback is typically in a rear yard to neighbouring rear yard configuration. This is not the case as the rear yard setback is adjacent to the Appellant’s side yard. He opined that since the entire cabana faces the side of the Appellant’s dwelling, this mitigates any impact to the Appellant’s property.
24With regards to the side yard setback to the cabana, Mr. Benkowski opined that the cabana itself is adjacent to the neighbour that also has a pool and cabana. Because the structure is mostly open air, any maintenance to the roof can be completed from the inside of the cabana.
25Mr. Benkozski concluded that the proposed variances have a limited impact to the neighbouring properties and meet the general intent and purpose of the ZBL.
26Mr. Ramsay gave opinion that variances do not meet the general intent and purpose of the ZBL.
27With regards to the architectural element setback, Mr. Ramsay opined that two of the privacy screens directly affect the use of the Appellant’s outdoor amenity area and appear as an imposing feature along the shared property line.
28As for the rear yard and side yard setbacks, Mr. Ramsay opined that the setbacks are to situate structures that minimize impacts on adjacent properties. The Appellant’s property is impacted as the only view the Appellant sees from their kitchen window is that of the cabana. There is only one window in the kitchen and the view of a cabana that is located within a couple of metres of the window is making that view obtrusive to the Appellant. On top of the view, the noise from the uncovered pool equipment is causing undue hardship to the Appellant to enjoy their outdoor yard area. The Appellant cannot open the Kitchen window due to the noise of the pool equipment.
Minor in Nature
29Mr. Bezkowski opined that the proposed variances are minor in nature both from a quantitative and qualitative aspect. The side and rear yard requests provide no impact to any neighbours. The enclosure of the pool equipment mitigates the impact of the pool equipment to adjacent neighbours. In his opinion, the Proposal is minor in nature and will not push the limit for over development in the area.
30Mr. Ramsay opined that the requested variances create an imposing view to the Appellant and will create a situation of visual and auditory impacts. There will be overshadowing issues with the architectural features and with the height and location of the cabana. The requested variances are not minor in nature.
Desirable for the Appropriate Development or Use of the Land
31Mr. Benzkowski opined that Proposal is in substantial compliance with the ZBL. There are similar cabanas in the immediate area with similar architectural features. This is an indication that the proposal is desirable for the neighbourhood. The proposal will allow for the rear yard to be used in the most functional manner possible.
32Mr. Benzkowski opined in conclusion that the proposal conforms with the policies of the GP, the OP and is consistent with the PPS. The proposal satisfied the four tests as set out in s. 45(1) of the Planning Act and represents good planning.
33Mr. Ramsay opined that the proposal is not desirable or appropriate. The lesser setbacks will adversely impact the Appellant’s use or enjoyment of their property.
34In conclusion, Mr. Ramsay opined that the proposal does not the general intent and purpose of the OP and ZBL. The proposal is not minor in nature or desirable or appropriate for the neighbourhood. He recommended that the Appeal should be allowed and the minor variances not be approved. The proposal does not represent good planning.
Coulter and Associates Acoustic Report
35Mr. Patlik took the Tribunal through the noise impact report. In summation, he opined that the decibels measured are above the noise ZBL and above the Ministry of Environment, Conservation and Parks (“MECP”) NPC-300 noise criteria when the pool heater is running. The noise level generated is well above the City ZBL and MECP criteria during the day and night.
ANALYSIS AND FINDINGS
36In arriving at its Decision, the Tribunal reviewed the material evidence provided and the municipal reports, considered the evidence and opinion of the witnesses, and has given regard to the decision of the COA.
37Upon examination of the evidence as a whole the Tribunal accepts some of the evidence of each of the land planning experts and accepts the evidence of Acoustic Report.
38The Tribunal accepts the evidence of Mr. Benzkoski in relation to the architectural features in the proposal. The two minor variance requests for the architectural features are consistent with the PPS, conforms with the policies of the GP, the City of Vaughan OP and ZBL. The architectural features do not create any undue impacts.
39In relation to the minor variances concerning the cabana and pool equipment, the Tribunal finds the evidence of Mr. Ramsay more compelling. The cabana in general, is much larger and taller than other similar cabanas on adjacent properties. His evidence demonstrated that the cabana’s location is obtrusive to the Appellant’s use of their property. The location of the cabana in relation to the Appellant’s kitchen window will impact the enjoyment of the Appellant’s property overall.
40Mr. Patlik’s unrefuted report demonstrated to the Tribunal that the noise from the pool equipment has not been reduced to allow more enjoyment both outdoors and indoors of the Appellant’s property.
41The Tribunal finds that the minor variances requested in relation to the cabana and the pool equipment are not minor in nature and do not meet the four tests of a minor variance as set out in s. 45(1) of the Planning Act.
ORDER
42THE TRIBUNAL ORDERS that the appeal is allowed, in part, and the following variances to the City of Vaughan By-law No. 1-88, as amended, are authorized:
Permit a minimum setback of 0.62 m for the proposed privacy screens to the rear lot line whereas 2.31 m is required.
Permit a minimum setback of 0.20 m for the proposed privacy screen to the side lot line whereas 2.31 m is required.
“S. deBoer”
S. deBOER MEMBER
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.