Mimi Khuu v. City of Vaughan, 2022 CanLII 15836

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 02, 2022

CASE NO(S).: PL210119

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

Applicant and Appellant: Mimi Khuu

Subject: Minor Variance

Variance from By-law No.: 1-88, as amended

Property Address/Description: 1 Edison Place

Municipality: City of Vaughan

Municipal File No.: A182/19

OLT Case No.: PL210119

OLT File No.: PL210119

OLT Case Name: Khuu v. Vaughan (City)

Heard: November 15, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Mimi Khuu	Gerard Borean
City of Vaughan	Did not attend

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing was convened on November 15, 2021 to consider the appeal by Mimi Khuu (“Appellant”) of the decision of the City of Vaughan (“City”) Committee of Adjustment (“COA”) made on January 14, 2021 which refused the minor variances.

2The Tribunal was informed that the Site is municipally known as 1 Edison Place, Maple, Ontario (the "Subject Property").

VARIANCES REQUESTED

3The following three (3) variances are being requested from Zoning By-law No. 1-88, as amended:

By-law Requirement	Proposal
1. The by-law requires that the minimum side yard set back is 1.2metres	1. The side yard set back of the rear yard staircase is 0.34 metres
2. The by-law requires that the minimum rear yard set back is 7.5 metres	2. The rear yard set back of the proposed rear yard deck is 3.78 metres
3. The by-law requires that the minimum side yard set back is 1.2 metres	3. The side yard set back of the proposed rear deck is 1.18 metres

SUBMISSIONS

4The Tribunal heard opinion evidence from one witness, Marshall Smith, of KLM Planning Partners, on behalf of the Appellant. Mr. Smith was qualified with no objections and affirmed to provide evidence in the area of land use planning.

5Sally Tan, a neighbour sought Party status. The Tribunal reviewed Ms. Tan’s Party Status Request Form and there upon explained to Ms. Tan the responsibilities of Party Status at hearing.

6Upon hearing submissions from Ms. Tan, and counsel for Ms. Khuu, the Tribunal declined Ms. Tan’s request for Party Status but granted her participant status.

ANALYSIS

7The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (the “PPS”), conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”), and meet each of the four tests in s. 45(1) of the Act.

8The Tribunal heard that on October 20, 2021, the City of Vaughan enacted a City-wide Comprehensive Zoning By-law No. 01-2021 ("CZBL").

9The Tribunal was given an overview of the CZBL with respect to the proposal before the Tribunal:

Zoning By-law Comparison

Provision	Required (By-law 1-88)	Required (By-law 01-2021)	Provided
Minimum Interior Side Yard (to deck)	1.2 m	1.2 m	1.18 m
Minimum Interior Side Yard (to access stair)	1.2 m	1.2 m	0.34 m
Minimum Rear Yard	7.5 m	6.0m	3.78
Permitted Rear Yard Encroachment (unenclosed platform)		2.22
Permitted Rear Yard Encroachment (balcony)		i.8m	3.72

10The Tribunal was advised that the Appellant sought an amendment pursuant to 45 (18.1.1) of the Planning Act (“Act”), to Zoning By-law No. 1-88 as amended, of the City of Vaughan.

11The Tribunal heard the following variances would be required to the CZBL if it were to apply:

Required Variances to Zoning By -law No. 01-021

12To permit encroachment of an unenclosed platform exceeding 1.2 metres (“m”) above grade into the required minimum interior side yard up to 0.02 m.

13To permit encroachment of a stairway to access an unenclosed platform exceeding 1.2 m above grade into the required minimum interior side yard up to 0.86 m.

14Mr. Smith informed the Tribunal these two (2) variances equate to variances No. 1 and No. 3 of the existing Minor Variance Application.

15Variance request No. 2 pursuant to By-law No. 1-88, is not required under the CZBL. There would be no need for a variance to the rear yard set back to the rear yard deck, as the existing deck complies with the rear yard deck encroachment provisions of the CZBL.

16The Tribunal further heard that the CZBL provides for transition policies.

17Mr. Smith stated that a review of the transition policies that Minor Variance applications submitted/in-process/approved before CZBL approval would continue to be reviewed under By-law No. 1-88.

18The Tribunal heard that this situation is unique in that the application was submitted/heard/refused at the Committee of Adjustment before the CZBL approval.

19Mr. Smith opined that variances applied for and refused before approval of the CZBL are not clearly captured in the CZBL transition policies.

20The two (2) variances required to the CZBL equate to the applied for variances one (1) and three (3) of Zoning By-law No. 1-88, as amended, and do not introduce further/new variances.

21Mr. Smith stated that the Minor Variance Application be amended to recognize the two (2) variances required to the CZBL; namely:

• To permit encroachment of an unenclosed platform exceeding 1.2 metres above grade into the required minimum interior side yard up to 0.02 metres;
• To permit encroachment of a stairway to access an unenclosed platform exceeding 1.2 metres above grade into the required minimum interior side yard up to 0.86 metres

PLANNING EVIDENCE

22Mr. Smith informed the Tribunal that City of Vaughan staff and outside agencies/authorities, supported the Minor Variance Application; namely, the application was circulated for comments and the Minor Variance Application was supported by:

• Building Standards Department;
• Building Inspection Department;
• Development Planning Department;
• Cultural Heritage (Urban Design Department);
• Parks, Forestry and Horticultural Operations Department;
• Financial Planning & Development Department;
• Fire Department;
• Toronto Region Conservation Authority;
• Ministry of Transportation;
• Region of York; and
• Alectra (Formerly PowerStream).

Policy Framework

23Mr. Smith provided evidence that his review of the Minor Variance Application, as amended, included a review of the following:

• Provincial Policy Statement 2020 (the "PPS 2020");
• Growth Plan for Greater Golden Horseshoe (the "GGH 2019");
• Oak Ridges Moraine Conservation Plan (the "ORMCP 2017"); and
• The Greenbelt Plan (the "Greenbelt Plan 2017").

24Mr. Smith opined that the Minor Variance Application, as amended, is consistent with the PPS 2020 and conforms to the GGH 2019, the ORMCP 2017 and Greenbelt Plan 2017.

LEGISLATIVE TESTS

25The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an Applicant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant.

26The tests require that the variances:

a. maintain the general intent and purpose of the OP; b. maintain the general intent and purpose of the ZBL; c. be desirable for the appropriate development or use of the land, building or structure; and d. be minor in nature

Maintain the general intent and purpose of the Regional OP

27Mr. Smith informed the Tribunal that he taken into consideration both the York Regional Official Plan 2010, 2019 consolidation, (the ''ROP 2010") and the City of Vaughan Official Plan 2010 , December 2020 consolidation (the "OP 2010").

28Mr. Smith took the Tribunal through a detailed review of both Official Plans and, in summary provided that:

• ROP 2010 sets the stage for a more detailed plan by local authorities;
• ROP 2010 designated the Subject Property as "Urban Area";
• ROP 2010 relevant excerpts can be found at tab 21 of the Document Book, pages 286, 321, 323 and 324-335);
• OP 2010 confirms that the Subject Property is within the "Urban Area", "Community Area", "ORM Settlement Area" and are designated low-rise residential;
• OP 2010 recognizes that incremental change is expected as a natural part of maturing neighbourhoods and that this change will be sensitive to, and respectful of, the existing character of the area;
• The existing deck/balcony is characteristic of the surrounding community in that the proposal is similar in scale and context to others in the same or nearby blocks;
• Similar decisions have been approved at the Committee of Adjustment, most notably for 51 Edison Place, within the same block as the Subject Property, where a deck with a 4.496 metre rear yard was approved by the Committee of Adjustment,; and
• The proposed deck is permitted under the applicable OP Policies as the configuration, location, scale of the deck as a component of the residential dwelling, is consistent with that observed in the community and which reinforces the existing neighbourhood character.

29Mr. Smith opined that the variances meet the general intent and purpose of both Official Plans.

Maintains the General Purpose and Intent of the Zoning By-law

30The Subject Property is located in the RD3 zoning category under the City of Vaughan Zoning By-law No. 1-88.

31The Tribunal heard with the exception of the variances before the Tribunal, the existing dwelling and deck conform to all provisions of the zoning by-law.

Variance No.1

32Interior Side Yard (to deck) - Reduce required Interior Side Yard from 1.2 m to 1.18 m, or a reduction of 0.02 m (0.8" or less than 1 inch), for the existing deck.

33Mr. Smith stated;

• The intent of the provision, when combined with other minimum yard requirements, is to establish acceptable siting of buildings/structures on a lot to establish a consistent character, while ensuring maintenance of and access around the dwelling can occur.
• The reduction from the required 1.2 m interior side yard to 1.18m is entirely attributable entirely to structural and trim components of the deck.
• Notwithstanding that a variance is requested for the reduced interior side yard to ensure compliance, section 3.14 c) of the zoning by-law does contemplate and permit encroachment of stairways, uncovered unenclosed porches and balconies into the required interior side yard up to a maximum of 0.3m.
• While the zoning by-law does not define a deck or balcony, it appears to contemplate similar if not the same type of projection proposed to a greater degree than proposed (0.3m vs. 0.02m).
• The subject structural/trim aspects of the deck represent an almost indiscernible encroachment into the interior side yard, and do not detract from the overall building siting/character contribution or ability to navigate or maintain the building/lot.
• The reduced setback will have no adverse impact on the adjoining lots in terms of privacy or overlook given mature vegetation exists along the shared property limit, and the variance relates to only very limited structural/trim aspects of the deck

Variance No. 2

34Reduce Interior Side Yard (to stairs) Reduce required Interior Side Yard from 1.2 m to 0.34 m, or a reduction of 0.86 m (2.82 feet), for the existing deck access stairs:

35Mr. Smith stated;

• the intent of the provision, when combined with other minimum yard requirements, is to establish acceptable siting of a building on a lot to establish a consistent character, while ensuring maintenance of and access around the dwelling can reasonably take place.
• The reduction from the required 1.2m interior side yard to 0.34m and is entirely attributable to an existing metal spiral staircase used to access the deck
• The existing metal spiral staircase has an approximate 1.8m (6') footprint, meaning only a very limited portion of the staircase itself is within 0.34m of the property line, and the encroachment relates to a very small portion of the interior side yard (approximately 1.31 sqm or 14.14 sq ft in area)
• Section 3.14 b & c) of the zoning by-law does contemplate and permit encroachment of stairways of ½ storey in height, into the required interior side yard to a lesser degree up to a maximum of 0.3m.
• The spiral staircase represents a limited encroachment into the interior side yard, and does not detract from the overall building siting/character contribution or ability to navigate or maintain the building/lot given the position of the stairs away from the main wall of the house.
• The reduced setback will have no adverse impact on adjoining lot in terms of privacy or overlook; given, mature vegetation exists along the shared property limit, and the variance relates to only the deck access stairs.

36Mr. Smith opined that the proposed variance to the interior side yard maintains the general intent and purpose of the zoning by-law.

Variance No. 3

37Reduced Rear Yard (to deck) Reduce required Rear Yard from 7.5 m to 3.78 m (a difference of 3.72 m or 12.2 ft) for the existing deck:

38Mr. Smith informed the Tribunal;

• Similar to the required Side Yard, the intent of the provision, when combined with other minimum yard requirements, is to establish acceptable siting of a building on a lot to establish a consistent character, while ensuring maintenance of and access around the dwelling can occur.
• For the rear yard, it is also intended that adequate private outdoor amenity space will be provided for the residential occupants.
• The reduction from the required 7.5 m interior side yard to 3.78 m is entirely attributable to the first-floor deck, which is elevated above the level of walkout basement due topography.
• The affect is that additional private outdoor amenity space is provided on the lot, accessible from the first floor of the dwelling, while maintaining patio space below the deck.
• Section 3.14 c) of the zoning by-law does contemplate and permit encroachment of porches and balconies into the required rear yard to a lesser degree up to a maximum of 1.8 m.

39The zoning by-law does contemplate similar if not the same type of projection proposed to a lesser degree - 1.8 m into the required rear yard or up to 5.7 m from the rear lot line, whereas the proposed 3.78 m setback to the rear yard deck equates to a 3.72 m encroachment for comparison (a difference of 1.92 m or 6.3 feet).

40The projection of the deck does not make any more severe the privacy or overlook interface of the neighbouring properties. This is a common interface in the area based on the topography that existed at the time the neighbourhood was constructed. There is no impact.

41The deck represents a limited encroachment into the rear yard, and does not detract from the overall building siting/character contribution or ability to navigate or maintain the building/lot given the position of the stairs away from the main wall of the house.

42Mr. Smith opined that the proposed rear yard maintains the general intent and purpose of the zoning by-law.

Minor in Nature

Variances 1 and 2 - Reduced Side Yard

43Mr. Smith informed the Tribunal;

• In consideration of whether the proposal is minor in nature it is important to separate the numerical magnitude of the proposed variances and the actual impact of the variances.
• The limited nature of the reduced interior side yard to the deck, from the permitted 1.2 m to the existing 1.18 m, and equates to roughly the thickness of a 1" trim board extension beyond the wall of the existing dwelling.
• Similarly, the limited nature of the reduced interior side yard to the access stairs, from 1.2 m to 0.34 m, numerically captures the most extreme or closest potion of the spiral staircase to the interior side lot line. With a circular footprint of approximately 1.8 m (6') in diameter, half of the stair is located under the deck while the other half represents the limited encroachment.

44Mr. Smith reiterated that section 3.14 b) & c) of the zoning by-law does contemplate and permit encroachment of stairways of ½ storey in height, and additionally porches or balconies, into the required interior side yard to a maximum of 0.3 m.

45The stair and deck encroachments into the required interior side yard do not introduce additional privacy or overlook impacts on adjoining properties particularly considering the mature vegetation along the north side yard property line, and by-law permissions for similar encroachment to come about in the community.

46Mr. Smith opined that the reduced interior side yard variances are minor in nature.

Variance No. 3 Reduced Rear Yard

47Mr. Smith informed the Tribunal:

• The variance for a reduced rear yard to the deck from 7.5m to 3.78m only relates to a limited encroachment as the deck spans less than 50% of the dwellings rear wall width.
• Reiterating that section 3.14 c) of the zoning by-law does contemplate and permit encroachment of porches and balconies into the required rear yard to a lesser degree up to a maximum of 1.8m.
• While the zoning by-law does not define a deck or balcony, it appears to contemplate similar if not the same type of projection proposed to a lesser degree.
• A review of the streetscape and surrounding blocks that standard "builders decks" were provided at the time of construction, as many homes along Edison Place and within neighbouring blocks appear to have the same or similar rear deck design accessed from the main floor above the basement walkout level due to topography. This acknowledges that the condition is common and longstanding in the neighbourhood and an aspect of its character as a function of the landform.
• The reduced setback does not introduce any adverse impact on the adjoining lot in terms of privacy or overlook given the inherent topography and relationship of the abutting rear yards. Vegetation (an establishing cedar tree line) exists along the property limit, which will effectively contribute to the interface between properties as it matures.
• The elevation difference between the subject lot and neighbouring property with an abutting rear yard does result in some overlook from the subject dwelling. This is a common interface in the area based on the topography that existed at the time the neighbourhood was constructed.

48Mr. Smith opined that there are no adverse impacts from the reduced rear yard to the deck and the variance is minor in nature.

Desirable for the Appropriate Development of the Lands or Use of the Property

49Mr. Smith informed the Tribunal:

• In considering whether the proposed minor variances are desirable for appropriate development for the lands, the concept of compatibility should be considered.
• In my opinion, "compatible with" should not imply the same meaning as "the same as” Rather, compatibility should be judged based on the ability for development to coexist within the existing neighbourhood without substantial conflict or adverse impact.
• For the reasons outlined, the proposed minor variances will result in a dwelling with exterior amenities (deck and stairs) that is compatible with the surrounding neighbourhood and will have no adverse impact on the surrounding lands and the larger neighbourhood as a whole
• In this regard, the existing neighbourhood is characterized in part by the unique sloping topography, which naturally sets certain lots and dwellings at a higher elevation than others. In this setting, and where a dwelling is subject to a rear walkout condition whereby the main floor containing common living spaces is located at a storey above that on an adjoining lot, some overlook will exist with or without the presence of an exterior deck.
• The existing rear deck is representative of a common condition observed in the community, as dwellings with a walkout condition typically have elevated rear decks albeit with varying projections, designs, and footprints. For dwellings with a walkout condition Mr. Smith opined that in his opinion this speaks to a greater perceived need for main floor accessible outdoor amenity space (such as a deck).
• Mr. Smith opined that the existing deck and stairs complement and are in keeping with the existing neighbourhood character.

50Mr. Smith opined that the subject application for minor variance would facilitate development that is desirable for the appropriate development and use of the subject lands.

FINDINGS

51The Tribunal accepts Mr. Smith’s evidence and finds that the minor variances have appropriate regard to matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan.

52The Tribunal finds the requested variances meet the four tests of s. 45 (1) of the Act and:

a. the general intent and purpose of the OP is maintained; b. the general intent and purpose of the ZBL is maintained; c. the variance is considered desirable for the appropriate development of the land; and d. the variance is minor in nature.

ORDER

53THE TRIBUNAL ORDERS that the appeal is allowed and the variance(s) to Zoning By-law No. 1-88, as amended by By-law No. 01-2021 are authorized.

“Carmine Tucci”

CARMINE TUCCI

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.