Luigi & Loredana Guarascio v. Sandra Colella, 2022 CanLII 122404

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 22, 2022

CASE NO(S).: OLT-22-004430

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

Applicant: Luigi & Loredana Guariscio

Appellant: Sandra Colella

Subject: Minor Variance

Description: To permit the construction of a proposed loggia, cabana and retaining wall to be located in the rear yard

Reference Number: A037/22

Property Address: 17 Winterlude Court

Municipality/UT: Vaughan/York

OLT Case No.: OLT-22-004430

OLT Lead Case No.: OLT-22-004430

OLT Case Name: Guarascio v. York (Region)

Heard: December 1, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel*/Representative
Luigi & Loredana Guarascio	Lou Pompili
Sandra Colella	Gerard Borean*

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is the appeal filed by Sandra Colella (“Appellant”) against the decision of the City of Vaughan (“City”) Committee of Adjustment’s (“COA”) decision to approve an application for Minor Variances (“MV”) from Zoning By-law No. 1-88 (“ZBL”) and ZBL No. 001-2021 concerning 17 Winterlude Court (“subject property” / “subject site”).

2Luigi & Loredana Guarascio (“Applicants”) are co-owners of the subject property. The subject site is located on the east side of Winterlude Court, and southwest of 26 Rosebud Court (“Appellant’s property”). It has 21.34 metres (“m”) of street frontage, a lot depth of 48.95 m and a lot area of 1,054.12 square metres (“m²”) and is zoned R1B - First Density Residential by ZBL No. 001-2021 and R1 – Residential Zone by ZBL No. 1-88.

3The Development Planning Department report (“Report”) recommended the approval of the MV application subject to the conditions included in the Municipal Record (Exhibit 7).

4The Tribunal notes that Bill 23, the More Homes Built Faster Act, 2022 received Royal Assent on November 28, 2022, and amended the Planning Act to retroactively dismiss appeals of certain planning instruments where a hearing on the merits was not scheduled prior to October 25, 2022. The Tribunal confirms that while this appeal was adjudicated after commencement of the Bill, this matter was scheduled for a hearing on the merits before October 25, 2022. The Tribunal therefore retained jurisdiction over this matter, and the appeal was not deemed to be dismissed.

THE DEVELOPMENT PROPOSAL

5The Applicant is requesting relief from the ZBL to legalize the unauthorized construction of a loggia, cabana and retaining wall in the rear yard.

6The following variances are being requested from the City’s ZBL No. 001-2021, as amended:

#	Zoning By-law 001-2021, as amended	Variance requested
1	The maximum permitted lot coverage is 40%. (7.2.2, Table 7-3)	To permit a maximum lot coverage of 43.13%.
2	A residential accessory structure with a height greater than 2.8 m shall not be located closer than 2.4 m to any lot line. (Section 4.1.2 1, By-law 001-2021, as amended).	To permit a minimum setback of 1.86 metres from the rear lot line to the proposed accessory building/structure (Cabana and Overhead Trellis).
3	A residential accessory structure with a height greater than 2.8 m shall not be located closer than 2.4 m to any lot line. (Section 4.1.2 1, By-law 001-2021, as amended).	To permit a minimum setback of 1.12 metres from the interior side lot line to the proposed accessory building/structure (Cabana and Overhead Trellis).
4	The maximum height of an accessory building and residential accessory structure shall be 3.0 m. (Section 4.1.4 1, By-law 001-2021, as amended).	To permit a maximum accessory building (Cabana and Overhead Trellis) height of 3.94 metres.
5	The maximum height of an accessory building and residential accessory structure shall be 3.0 m. (Section 4.1.4 1, By-law 001-2021, as amended).	To permit a maximum accessory building (Covered Loggia) height of 3.94 Metres.
6	In the R1B Zone, any portion of a yard in excess of 135.0 m² shall be comprised of a minimum 60% soft landscape. (Section 4.19.1 1, By-law 001-2021, as amended)	To permit the portion of the rear yard in excess of 135.0 m² to be comprised of a minimum 59.81% soft landscape.
7	A residential accessory structure with a height greater than 2.8 m shall not be located closer than 2.4 m to any lot line. (Section 4.1.2 1, By-law 001-2021, as amended).	To permit a minimum setback of 1.20 metres from the interior side lot line to the proposed accessory structure (Covered Loggia).
8	A residential accessory structure with a height greater than 2.8 m shall not be located closer than 2.4 m to any lot line. (Section 4.1.2 1, By-law 001-2021, as amended).	To permit a minimum setback of 1.30 metres from the rear lot line to the proposed accessory structure (Covered Loggia).
9	A retaining wall shall be setback an equal distance to the height of the highest portion of the retaining wall. (4.13, Table 4-1)	To permit the proposed retaining wall to be set back 0.60 metres where the height of the retaining wall is 1.0 metres.
10	Eaves and gutters are permitted to encroach a maximum of 0.5 metres into a required yard. (Section 4.13, Table 4-1, By-law 01-2021)	To permit the eaves of the proposed accessory structures (Cabana and Overhead Trellis and Covered Loggia) to encroach a maximum of 0.53 metres into a required yard.
11	A minimum distance of 0.6 m shall be required from any permitted encroachment to the nearest lot line. (Section 4.13 3)	To permit the eaves of the proposed accessory structure (Cabana and Overhead Trellis) to be setback 0.59 metres from the interior side lot line.
12	The maximum height of an outdoor swimming pool shall be 2.0 m. (4.21 6)	To permit the maximum height of the outdoor swimming pool (hot tub) to be a maximum of 2.15 metres.
13	Where the height of an outdoor swimming pool is greater than 1.5 m, the minimum setback from any lot line shall be 3.0 m. (4.21 6)	To permit the minimum setback of the outdoor swimming pool (hot tub) to be 1.12 metres from the interior side lot line.

7The following variances are being requested from the City’s ZBL No. 1-88, as amended:

#	Zoning By-law 1-88	Variance requested
14	The maximum permitted lot coverage is 35%. (Schedule A, By-law 1-88, as amended).	To permit a maximum lot coverage of 38.32%.
15	A minimum rear yard of 7.5 metres to the proposed accessory structure (Cabana and Overhead Trellis) is required. (Schedule A, By-law 1-88, as amended).	To permit a minimum rear yard of 1.86 metres to the proposed accessory structure (Cabana and Overhead Trellis).
16	A minimum interior side yard of 1.5 metres to the proposed accessory structure (Cabana and Overhead Trellis) is required. (Schedule A, By-law 1-88, as amended).	To permit a minimum interior side yard of 1.12 metres to the proposed accessory structure (Cabana and Overhead Trellis).
17	A minimum interior side yard of 1.5 metres to the proposed accessory structure (Covered Loggia) is required (Schedule A, By-law 1-88a.a.).	To permit a minimum interior side yard of 1.20 metres to the proposed accessory structure (Covered Loggia).
18	A minimum rear yard of 7.5 metres to the proposed accessory structure (Covered Loggia) is required (Schedule A, By-law 1-88a.a.).	To permit a minimum rear yard of 1.30 metres to the proposed accessory structure (Covered Loggia).
19	In an R1 Zone, where the area of a rear yard of a lot is greater than 135 sq. m., a minimum of sixty percent (60%) of that portion of the rear yard in excess of 135 sq. m shall be composed of soft landscaping. (Section 4.1.2 b), By-law 1-88, as amended)	To permit the portion of the rear yard in excess of 135.0 sq. m. to be comprised of a minimum 59.81% soft landscape.
20	The nearest part of the roof of an accessory building or structure shall not be more than three (3) metres above finished grade. (4.1.1 b)	To permit the proposed accessory structure (Cabana and Overhead Trellis) to have a maximum height of 3.58 metres to the nearest part of the roof.
21	Eaves shall not project more than 0.5 metres into a required yard. (3.14 a)	To permit the eaves of the proposed accessory structures (Cabana and Overhead Trellis and Covered Loggia) to project a maximum of 0.53 metres into a required yard.

LEGISLATIVE FRAMEWORK

8An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) has been satisfied:

1. the intent and purpose of the official plan is being maintained;
2. the intent and purpose of the zoning by-law is being maintained;
3. is desirable for the appropriate development or use of the land, building or structure; and,
4. the variance(s) is minor in nature.

9In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.

HEARING

10The Applicants were represented by Lou Pompili. Mr. Pompili wanted to both represent the Applicants and to provide expert opinion evidence. However, the Tribunal does not allow an individual to act as both a representative and witness. Thus, Mr. Pompili decided to continue to act in the role of the representative of his clients. He did not present any planning or engineering witnesses or call any witnesses.

11The Appellants were represented by legal counsel and presented two expert witnesses: Michael Hall, a Municipal Engineer, and Claudio Bruto, a Planner.

MR. BRUTO’S TESTIMONY

12Mr. Bruto, a Registered Professional Planner, was qualified by the Tribunal to provide land use planning opinion evidence in relation to the matter under appeal. Mr. Bruto delivered detailed contextual evidence and a land use planning rational in support of the appeal.

13In his testimony Mr. Bruto relied on the engineering report and on the professional opinion of Mr. Hall.

14In the opinion of Mr. Bruto, the proposed MV for a construction of the loggia, cabana and retaining wall does not meet the four tests of the Act under s. 45 (1) and should not be granted.

MR. HALL’S TESTIMONY

15Mr. Hall was qualified by the Tribunal to provide expert opinion evidence in the area of Municipal Engineering, including grading and drainage. The firm where Mr. Hall is working completed the grading plan for the subdivision where the subject property is located. The grading of the subdivision has been certified and the subdivision has been assumed by the City.

16Mr. Hall described the current grading of the subject lands and explained that it is located higher than the Appellant’s property. The rear yard slopes to the rear of the Appellant’s property, where there is a retaining wall and swale. This rear yard swale catches the run-off from the backyard and continues onto the Appellants’ property.

17Mr. Hall stated that he observed a constructed swimming pool and a retaining wall on the subject site (Exhibit 8, Tab 14). The swale between the Applicants’ and Appellants’ properties has been removed. In his site visit he observed the water seepage coming from the subject property (Exhibit 8, Tab 15).

18In Mr. Hall’s opinion, the water runoff is the result of the altered grading, constructed swimming pool and the retained wall causing ponding on the Appellants’ property and results in a loss of the use and enjoyment of the Appellant’s rear yard, which is an unacceptable adverse impact.

ANALYSIS AND FINDINGS

19Mr. Bruto does not dispute that the intent and purpose of the Official Plan is being maintained.

20However, it is Mr. Bruto’s opinion that the intent and purpose of the zoning by-law is not maintained. Specifically, he brought the Tribunal’s attention to MV No. 9, 12 and 13.

21MV No. 9 is requesting that the proposed retaining wall be set back 0.60 m where the height of the retaining wall is 1.0 m. Section 4.13, Table 4-1 of ZBL No. 01-2021 requires that a retaining wall shall be setback an equal distance to the height of the highest portion of the retaining wall; in this case, 1.0 m. Mr. Bruto stated that the intent of this provision is to establish a minimum setback between the retaining wall and the property line in order to provide adequate space to be able to control additional drainage produced as a result of increased runoff.

22MV No. 12 is the request to increase the maximum height of the outdoor swimming pool or hot tab to 2.15 m. Section 4.21.6 of ZBL No. 01-2021 only permits a maximum height of 2.0 m for an outdoor swimming pool. Mr. Bruto pointed out that the proposed height increase is creating inadequate grading conditions that have significantly increased runoff flowing from the subject site to the Appellant’s property and has damaged their rear and side yard swales.

23In MV No. 13 the Applicant is seeking to permit the minimum setback of the outdoor swimming pool (hot tub) to be 1.12 m to the interior lot line. Section 4.21.6 of ZBL No. 01-2021 requires that the minimum setback from any lot line be a minimum of 3.0 m where the height of an outdoor swimming pool is greater than 1.5 m. Mr. Bruto explained that this MV represents a significant reduction in the setback from the lot line.

24In Mr. Bruto’s opinion, and taking into consideration the professional opinion of Mr. Hall, the cumulative effects of the increased height of the swimming pool and the retaining wall, and the greatly reducing minimum yard setbacks, result in an unacceptable adverse impact on the Appellants’ property, caused by water runoff due to the altered grading and insufficient set back requirements.

25The Tribunal finds that the proposed MVs do not maintain the general intent and purpose of the ZBL and result in the creation of undue adverse impacts to the Appellant’s property.

26The Tribunal agrees with Mr. Bruto’s professional opinion that the proposed development is not desirable for the appropriate development or use of the land, building or structure as it will result in a rear yard with excessive hard surfaces and insufficient yard setbacks that will be a detriment to the runoff capacity of the lot, as indicated by Mr. Hall, which is incompatible with the surrounding neighbourhood and has had adverse impact on the surrounding lands and the larger neighbourhood as a whole.

27Mr. Bruto disagrees that the requested MVs are minor in nature, as the relief being sought causes significant impact on the Appellant’s property due to storm water runoff, flooding, and damaged sod.

28The planning evidence was clear. The variances sought are not minor in nature due to the negative impacts to the adjacent property.

29The Tribunal finds that the requested MV are not minor in nature due the unacceptable adverse impacts.

CONCLUSION

30The Tribunal has taken into the consideration the COA decision and the Report. This hearing was a hearing de novo of the MV application. The Applicant did not tender any land use planning or engineering evidence to counter the evidence provided by the Appellant’s expert planner and engineer. The Tribunal finds the uncontested evidence of the Appellants’ experts to be persuasive in demonstrating that the MV application does not comply with the criteria established in s. 45(1) of the Act.

ORDER

31THE TRIBUNAL ORDERS that the appeal is allowed and the minor variances to By-law No. 1-88 and By-law No. 001-2021 are not authorized.

“P. Tomilin”

P. tomilin

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.