Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 16, 2022
CASE NO(S).: OLT-21-001358
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: Azar Matin & Ben Matin
Appellant: Raymond Valadkhani
Subject: Minor Variance
Property Address/Description: 51 Thornbank Road
Variance from By-law: 1-88
Municipality: City of Vaughan
Municipal File No.: A149/21
OLT Lead Case No.: OLT-21-001358
OLT Case No.: OLT-21-001358
OLT Case Name: Valadkhani v. Vaughan (City)
Heard: January 11, 2022 by Video Hearing (“VH”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| Azar Matin & Ben Matin (“Applicant”) | Dennis Wood |
| Raymond Valadkhani (“Appellant”) | Raj Kehar |
| City of Vaughan (“City” or “Approval Authority”) | Did not Attend |
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON JANUARY 11, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On July 15, 2021, Tricon Development Inc., on behalf of Azar Matin and Ben Matin (the “Applicant”), applied to the City of Vaughan (the “City”) Committee of Adjustment (the “C of A”) for variances to the City’s Zoning By-law No. 1-88 (“ZBL”) to facilitate the building of a new dwelling, pool house and storage shed (the “proposal”) at 51 Thornbank Road, City of Vaughan (the “Subject Site”).
2On August 13, 2021, the City’s C of A authorized the requested variances subject to a condition requiring the approval of a grading plan.
3On September 1, 2021, Raymond Valadkhani (the “Appellant”), the owner of 49 Thornbank Road, the abutting property to the east of the Subject Site, appealed the C of A’s decision to the Tribunal within the statutory timelines as prescribed under the Planning Act (the “Act”), s. 45(12).
4Subsequent to this appeal, the Parties through continued discussions resolved the contested issues and requested that the hearing be converted to a Settlement Hearing.
5This matter came before the Tribunal on Tuesday, January 11, 2022 and was heard as a Settlement Hearing as requested.
THE HEARING
6Counsel for the Applicant advised the Tribunal that revisions to the design of the proposed residential dwelling (on the Subject Site), particularly the location and orientation of the garage aspect of the dwelling, has resolved an issue the Appellant had previously identified as a concern with the original design (as was provided to the City and its C of A).
7With the revision and redesign of the dwelling, the withdrawal of a variance previously sought was put forward by the Applicant for the Tribunal’s consideration and variance seeking:
To permit a minimum front yard setback of 18.10 metres whereas a minimum front yard setback of 29.5 metres is required
And, was no longer sought nor required by the Applicant.
8Concerns were still identified by the Appellant with the proposal and were to be provided to the Tribunal and be the subject of discussions at this Hearing. Two main concerns were identified:
involved the health and preservation of trees on the Appellant’s property; and,
the retaining wall proposed on the Subject Site and modifications the Parties have agreed to.
9The City did not appear at this Hearing event and has taken no position on the appeal.
10Counsel for the Appellant advised the Tribunal that his client through this Settlement process was not agreeing to the solutions or opinions provided by the Applicant’s Arborist, however, he is not contesting nor taking a position on the appeal (which he had originally filed). This is dependent and on the basis that the Tribunal impose the agreed to conditions on the proposal and on the Subject Site, if approval of the variances are so granted by the Tribunal.
STATUTORY TESTS REQUIRED
11Although settlement has been reached by the Parties, the Tribunal is still tasked to determine if the relief of the ZBL sought and the variances before the Tribunal are consistent with Provincial interests as set out in the Provincial Policy Statement, 2020 (the “PPS”) and meet the four tests as set out in s. 45(1) of the Act.
12More specifically, the Tribunal must determine if:
- the variances are consistent with the PPS 2020?
- do the variances meet the intent and purpose of the City and Regional Municipality of York (“Region”) Official Plans (the “OPs”)?
- do the variances meet the intent and purpose of the Zoning By-law?
- are the variances minor in nature? and,
- are the variances appropriate and desirable?
LAND USE PLANNING WITNESS
13On consent of the Parties, Stefan Staicu was the lone witness that appeared and provided viva voce testimony at this Hearing. Mr. Staicu’s Curriculum Vitae (the “CV”) and Acknowledgement of Expert Duty form was provided in Exhibit 2 for the Tribunal’s consideration.
14With no objection heard, and upon review of Mr. Staicu’s CV and Acknowledgement of Expert Duty form, the Tribunal duly affirmed and qualified the witness to provide opinion evidence in land use planning at these proceedings.
SITE CONTEXT
15The Applicant has proposed to demolish the current dwelling on the Subject Site and is requesting permission to construct a two-storey single family dwelling with an attached garage, a swimming pool and an accessory structure (pool house) in the rear with the above noted variances.
16The established large-lot neighbourhood is characterized with lots that are primarily comprised of generous frontages (greater than 30 metres (“m”)) and are made up of existing bungalow dwellings and newly constructed two-storey homes.
17The Subject Site is located on the north side of Thornbank Road and is characterized as a mature, well established area, with mature vegetation and trees. Neighbouring lots to the east and west are similar in size and are also residential lots, however, important to note is that the significantly lower elevation on the Subject Site which at points is more than 2 m lower than the lot to the east (the Appellant’s Lot and as depicted in photos provided in Exhibit 2 and more accurately depicted in Exhibit 3 and the Site Plan with surveyed elevations provided). The north side lots on Thornbank Road (Subject Site included) share their rear property line with Thornbush Golf Club and thus, there are no dwellings to the rear, only open space.
THE VARIANCES
18The following table below identifies the current City By-law requirements, as they are currently imposed on the Subject Site, verses the requested variances sought by the Applicant:
| By-law Requirement | Requested Variances |
|---|---|
| 1. A maximum lot coverage of 20% is permitted (Schedule A, By-law 1-88). | 1. To permit a maximum lot coverage of 20.44%. |
| 2. A maximum building height of 9.5 metres for the single family detached dwelling is permitted (Schedule A, By-law 1-88). | 2. To permit a maximum building height of 11.00 metres for the single family detached dwelling. |
| 3. A maximum building height of 3.0 metres from average finished grade to the nearest part of the roof for the accessory structure (Pool house) is permitted (Section 4.1.1, By-law 1-88). | 3. To permit a maximum building height of 3.50 metres to the nearest part of the roof for the accessory structure (Pool house). |
| 4. A minimum rear yard setback of 1.95 metres to the proposed retaining wall is required (Section 4.1.1, By-law 1-88) | 4. To permit a minimum rear yard setback of 1.85 metres to the proposed retaining wall. |
| 5. A minimum interior side yard setback of 1.95 metres to the proposed retaining wall is required (Section 4.1.1, By-law 1-88). | 5. To permit a minimum interior side yard setback of 1.61 metres to the proposed retaining wall. |
THE PPS
19Mr. Staicu provided minimal evidence as to the proposal having regard to matters of the Provincial interest and being consistent with the PPS, focusing more so on the four tests set out by s. 45(1) of the Act.
20Mr. Staicu did, however, provide his uncontroverted summary opinion that the proposal as permitted with the variances, and as provided to this Tribunal, has regard for matters of Provincial interest and that the proposal, when considered in its entirety, is consistent with relevant policies of the PPS.
THE FOUR TESTS AND S. 45(1) OF THE ACT
Test One
21Test one of the four tests set out in s. 45(1) of the Act, requires the proposal and the relief sought by the variances demonstrate that the general intent and purpose of the City Official Plan (the “OP”) is maintained.
22Mr. Staicu took the Tribunal to the City OP, Schedules 1, 13, 18 (Maps provided on pages 323-325 of Exhibit 2), which illustrate the Subject Site falling within the urban boundary of the City and more defined within a designated established community area allowing for low-rise residential built form, which the proposal seeks to maintain. He further highlighted that that the Subject Site falls within the City’s Established Large-Lot Neighbourhoods, and lots within requiring a frontage greater than 30 m.
23Referring to the above paragraph, Mr. Staicu opined that the Subject Site is subject to OP Policy 9.1.2.3 and shall be consistent with this policy.
24Mr. Staicu highlighted that Policy 9.1.2.3 is a lengthy policy focusing on the elements and character of the City’s Established Community. Mr. Staicu referenced:
…In order to maintain the character of established, large-lot neighbourhoods the following policies shall apply to all developments within these areas (e.g., land severances, zoning by-law amendments and minor variances), based on the current zoning, and guide the preparation of any future City-initiated area specific or comprehensive zoning by-laws affecting these areas.
25Mr. Staicu opined that the proposal is consistent with subsections a through h of s. 9.1.2.3 and provided a more in-depth analysis of subsection (g) and (h).
26OP Policy 9.1.2.3 (g) spoke to building heights and massing and the respecting adjacent residential buildings and any relevant urban design guidelines. It was Mr. Staicu’s opinion that Variance 1 seeking less than a half a percent relief (20% required vs. 20.44 requested) for lot coverage is characteristic and inline with the existing area and thus, is in keeping with the intent of the OP.
27Variances 2 and 3 pertaining to the height proposed for the dwelling and secondly, the lower part of a Pool House Cabana roofline (not the overall height of the Cabana) are very much in line with the higher scale neighbourhood both presently and as evolving in Mr. Staicu’s opinion. He brought the Tribunal to p. 81 of Exhibit 2, a table showing numerous minor variance approvals in the area for relief of building heights, which he opined demonstrated the prevalent character of the area. However, most notably Mr. Staicu opined that the elevation difference between the Subject Site and the easterly neighbour (the Appellant) was a significant variable to consider that justified the relief sought by the Applicant. The Subject Site is at points 2 – 2.5 m lower in elevation than the Appellant’s lot. Mr. Staicu opined this essentially negates the higher height sought and meets the intent of the policy by blending in harmoniously with the character of the area and the built forms adjacent and nearby.
28Mr. Staicu opined that variances 4 and 5, both setback issues, maintain the intent of the OP. The Subject Site as noted backs onto open space and the rear retaining wall (which is existing) is setback still allowing the ability to maintain the wall from both sides. The proposed interior retaining wall also proposes to provide ample space for maintenance and with modifications proposed (portions of the wall removed) satisfying the easterly neighbour, the intent and relevance of the policy is maintained.
29Speaking to subsection (h), lot coverage, Mr. Staicu highlighted again, the small variation and relief sought (being less that half a percent). In his opinion, the proposal still maintains the intent of the policy with no negative impacts to neighbouring properties or the area in general.
Test Two
30Test two requires that the general intent and purpose of the City ZBL is maintained with the authorization of the variances.
31The Subject Site is zoned RIV and as indicated is subject to provisions of the City ZBL No. 1-88 (Exhibit 1, p. 123). The Applicant’s proposal seeks relief from the provisions of this ZBL, specifically as indicated in the Table provided in this Decision at para. 18.
32The Subject Site is also subject to newer City-wide Comprehensive ZBL No. 001-2021 (“ZBL 001-2021”), enacted October 20, 2021.
33Mr. Staicu advised the Tribunal that provision 1.6.3.1 of ZBL No. 001-2021, provides direction of how the City is to deal with Minor Variance Applications. Mr. Staicu opined the general intent of this ZBL is maintained by the Applicant’s proposal.
34Mr. Staicu opined that the proposal before the Tribunal and the variances sought also meet the intent of the ZBL No. 1-88. He opined that the ZBLs tend to exist in order to protect the interests of the affected parties and the interest of the general public. Mr. Staicu provided the following, as reasons that led to his conclusions that test two has been satisfied:
i. No adverse or negative impacts are felt by the adjacent neighbour (Appellant), mainly because the impacts (if any) are negated by the substantial lower elevation of the Subject Site and the overall size of the lots in the area all being quite large making the lot coverage variance seem almost negligible.
ii. The Character of the neighbourhood and increased heights sought in variances 2 and 3 are quite prevalent and common built form variances seen in the area.
iii. Building upon the opinion that adverse impacts are mitigated or negated by the elevation difference between the Subject Site and the Appellant’s property, Mr. Staicu opined that overlook issues or potential shadowing issues are also quite minimal and further augmented by the boundary between the two properties being heavily screened with trees and various vegetation.
iv. Lastly, pertaining to the retaining walls both at the rear yard and interior yard, the ZBL rationale for setback distances is technical in nature and to provide the ability to maintain both sides of the wall if required. The setback provided still allows ample access and thus meets the intent of the ZBL.
Test Three
35Test three, requires the approval authority (in this case, the Tribunal) be satisfied that the proposal and the relief sought by the variances are minor in nature.
36Pertaining to the height variances, Mr. Staicu opined:
i. No adverse impacts are created
ii. The elevation difference between the Subject Site and neighbour offsets any increase in height sought beyond the allowable ZBL.
iii. The variances are in keeping with the character of the neighbourhood
37Pertaining to the lot coverage variance, Mr. Staicu opined:
i. The Applicant has redesigned the dwelling and removed the negative impact the Appellant felt with the previous orientation of the garage.
ii. The 0.44% variance quantitatively is minor in his opinion is minor overall.
38Pertaining to the retaining wall variances, Mr. Staicu opined:
i. The Applicant has provided enough space on both sides of the retaining walls for maintenance, meeting the technical intent of the ZBL.
ii. The retaining walls serve a functional and esthetic purpose and have no negative impacts to adjacent neighbours. This is particularly true with agreed to limitations in length and conditions the Applicant has agreed to adhere to.
Test Four
39Test four, requires the Tribunal be satisfied that the proposal and the relief sought by the variances are appropriate and desirable.
40Mr. Staicu opined that for several of the reasons already provided for tests one through three, the variances sought are indeed desirable.
41In his opinion, the proposal is in keeping with the character of the neighbourhood, improves the appearance and functionality of the Subject Site and overall fits harmoniously in with the built form existing and evolving in the area.
APPELLANT’S POSITION
42As indicated, at the onset of the hearing, the Appellant has agreed and settled its issues with the Applicant, and as such, has not taken a position on the matter before the Tribunal.
43Counsel for the Appellant, however, wanted to be clear. In settling the issues of this Hearing, they have not endorsed the variances sought by the Applicant. Counsel submitted that if the Tribunal approves the variances requested by the Applicant, the Tribunal also impose the agreed to conditions, ensuring construction and erection of structures be done generally as depicted in the revised plans (January 9th 2022) and included as Exhibit 3. They are the basis of resolution and settlement.
44The Appellant still has concerns mainly with the Arborist report of the Applicant (included in Exhibit 2), however, has agreed to settle on the basis that a City Tree permit is obtained for works on the Subject Site and the Director of Forestry, essentially arbitrates the concerns of the Parties.
ANALYSIS AND DISPOSITION
45First, in authorizing the variances, at the request of counsel for the Applicant, the Tribunal exercises its jurisdiction under s. 45(18.1) of the Planning Act to not require further notice under s. 45(18.1.1) in regard to Variance 1 relating to lot coverage and Variance 3 relating to ancillary building height insofar as the amendments to the original application are minor (less) in comparison to those originally sought.
46The Tribunal is satisfied and accepts the uncontroverted evidence of Mr. Staicu. The Tribunal has also considered the evidence for this Hearing in its entirety and has put weight on the recommendations of City planning staff to the C of A, to approve the minor variances originally applied for.
47The Tribunal finds that the proposal and variances sought are consistent with relevant policies of the PPS.
48The Tribunal finds that the proposal and variances sought satisfy the four tests set out in s. 45(1) of the Act.
49The evidence of Mr. Staicu satisfied the Tribunal that no negative impacts are created, and the character of the neighbourhood is maintained with the variances as proposed. The Tribunal also is satisfied and finds the proposal is able to fit in harmoniously with the existing and evolving neighbourhood.
50The Subject Site context and onsite conditions also weighed heavily in the Tribunal’s Decision. The Subject Site is a large residential lot with impacts mitigated by the shear size of the Subject Site and the adjacent lots in proximity. The elevation difference plays a key role in mitigating impacts on the Appellant’s lot and the abundance of trees and vegetation serve a valuable role in screening and limiting overlook concerns.
51Lastly, the conditions of approval proposed have been reviewed by the Tribunal. The Tribunal finds them to be appropriate and quite helpful in both reaching settlement between the Parties, but more importantly, ensuring the impacts and concerns to the trees and vegetation, which are dealt with in a prudent and reasonable manner.
52For the reasons cited above and with the settlement of issues by the Parties, the Tribunal issued an oral decision in which it found that the proposed variances satisfy the four tests in s. 45(1) of the Planning Act and the relevant provincial policy requirements and thus, authorized the provisional approval of the minor variances subject to conditions.
53The Tribunal has been advised by counsel for both parties that no costs will be sought by either party in regard to this Proceeding.
ORDER
54THE TRIBUNAL ORDERS that the appeal is allowed in part and variances to By-law No. 1-88 listed in Attachment 1 to this Order are authorized subject to the conditions also set out in Attachment 1 and Attachment 2 to this Order.
55THE TRIBUNAL having been asked to consider an application which has been amended from the original application, and having determined that the amendments are minor as provided for in subsection 45(18.1.1), directs that no further notice is required.
“M. Russo”
M. RUSSO
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.
ATTACHMENT 1
The following variances are authorized for the Subject Property:
| By-law Requirement | Requested Variances |
|---|---|
| 1. A maximum lot coverage of 20% is permitted (Schedule A, By-law 1-88). | 1. To permit a maximum lot coverage of 20.44%. |
| 2. A maximum building height of 9.5 metres for the single family detached dwelling is permitted (Schedule A, By-law 1-88). | 2. To permit a maximum building height of 11.00 metres for the single family detached dwelling. |
| 3. A maximum building height of 3.0 metres from average finished grade to the nearest part of the roof for the accessory structure (Pool house) is permitted (Section 4.1.1, By-law 1-88). | 3. To permit a maximum building height of 3.50 metres to the nearest part of the roof for the accessory structure (Pool house). |
| 4. A minimum rear yard setback of 1.95 metres to the proposed retaining wall is required (Section 4.1.1, By-law 1-88). | 4. To permit a minimum rear yard setback of 1.85 metres to the proposed retaining wall. |
| 5. A minimum interior side yard setback of 1.95 metres to the proposed retaining wall is required (Section 4.1.1, By-law 1-88). | 5. To permit a minimum interior side yard setback of 1.61 metres to the proposed retaining wall. |
The variances are authorized subject to the following conditions:
- The proposed dwelling, pool house and storage shed shall be constructed in substantial conformity to the Revised Plans prepared by Tricon Development dated January 9, 2022 in Attachment “2” attached to this Order.
- The proposed dwelling, pool house and storage shed shall be constructed with:
a) a height that does not exceed that which is illustrated on the architectural plans dated January 9, 2022 and prepared by Tricon Development Inc. (the “Plans”); and
b) setbacks no closer to the south lot line and east lot line than as shown on the Site Plan dated January 9, 2022 and, as to the proposed dwelling, no closer to the north lot line than the red line as shown on the Site Plan dated January 9, 2022.
- Should any retaining wall be constructed between the house and its east lot line, it will be constructed only at the location shown on the Plans or at a location that is directed by the Director of Forestry to be further away from the east lot line.
- The Owner shall obtain a Tree Removal Permit for the Injury or Destruction of Trees in accordance with City of Vaughan By-law No. 052-2018, as amended and the City of Vaughan Tree Protection Protocol (2018), including, in particular, a permit where injury of a tree located on the 49 Thornbank Road property is proposed.
- 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.