Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CORRECTION NOTICE

OLT CASE NO(S).: OLT-21-001458

DECISION ISSUE DATE(S): April 01, 2022

CORRECTION NOTICE ISSUE DATE: April 12, 2022

RE: Lavorato & Burns v. Vaughan (City)

Correction to: The date in the heard by-line (page 1) and in paragraph [4], the date the Committee of Adjustment denied the Minor Variance.

Originally:

Heard: March 16, 2022 by Video Hearing

4Despite the recommendation made in the Staff Report, the Committee denied the Minor Variance on September 22, 2021.

Corrected to:

Heard: March 4, 2022 and March 11, 2022 by Video Hearing

4Despite the recommendation made in the Staff Report, the Committee denied the Minor Variance on September 9, 2021.

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 01, 2022

CASE NO(S).: OLT-21-001458

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1997, c. P. 13, as amended

Applicant/Appellant: Peter Lavorato & Julie Burns

Subject: Minor Variance

Property Address/Description: 38 Ventana Way

Variance from By-law: 1-88

Municipality: City of Vaughan

Municipal File No.: A-163/21

OLT Lead Case No.: OLT-21-001458

OLT Case No.: OLT-21-001458

OLT Case Name: Lavorato & Burns v. Vaughan (City)

Heard: March 16, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Peter Lavorato and Julie Burns (collectively the “Applicant” or the “Appellant”)

Self-represented

City of Vaughan (“City”)

Gurnick Perhar

Mary Mauti

Gerard C. Borean

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Applicant is appealing the decision of the City’s Committee of Adjustment (“Committee”) denying a minor variance application for reduced rear and side yard setbacks to facilitate the installation of a proposed pool on the property municipally known as 38 Ventana Way, Woodbridge (“Subject Property”).

2The City’s Zoning By-law No. 1-88 (“ZB”) permits inground pools but requires the following minimum rear yard and side yard setbacks for them:

1. A minimum rear yard setback of 1.5m is required. (4.1.1.i), and
2. A minimum interior side yard of 1.5m is required. (4.1.1.i).

The Applicant sought the following reduced minimum rear yard and side yard setback for the installation of the proposed pool in the minor variance application:

1. A minimum rear yard setback of 0.91m, and
2. A minimum interior side yard of 0.91m.

(collectively, the “Minor Variance”).

3The Staff report prepared for the Committee recommended that the Minor Variance be approved subject to the condition identified in Appendix 1. This condition requires the adoption of satisfactory low impact development measures to deal with storm water runoff from the Subject Property once the pool is constructed, due to the small size of the backyard at the Subject Property. The City planning department and other departments supported the Minor Variance since, in their collective view, the adjusted setbacks met all the requirements of s. 45(1) of the Planning Act (“Act”)(“Staff Report”). The City Planner was of the view that the proposed setbacks identified by the Minor Variance allowed sufficient space between the proposed pool and the property lines for access and drainage and would not have any negative impacts on neighboring properties.

4Despite the recommendation made in the Staff Report, the Committee denied the Minor Variance on September 9, 2021. On October 6, 2021, the Applicant filed an appeal of the Committee decision with the Ontario Land Tribunal (the “Tribunal”).

HEARING AND PARTY STATUS REQUEST

5A hearing was held on March 4, 2022, and continued on March 11, 2022.

6Mary Mauti, the immediate neighbour, who owns the property abutting the rear yard of the Subject Property, municipally known as 36 Mondavi Road, in the City (“Mauti Property”) requested party status. She appeared before the Committee and made extensive submissions regarding the Minor Variance application. The Tribunal heard the submissions of the Parties regarding whether Ms. Mauti should be granted party status and concluded that she had an interest in the proceedings and thus, she was granted party status.

7The Applicant was self-represented. Julie Burns prepared diligently for the hearing but did not have any experience before the Tribunal. She required general direction from the Tribunal at various stages during the proceedings. Ms. Mauti was represented by counsel and the City appeared but took no position with respect to the issues before the Tribunal and only spoke to the Conditions of Approval proposed by the City.

8The Appellant issued a summons to Michael Torres, a planner with the City and Farzana Khan, a Development Engineering Reviewer and engaged Sandro Soscia, a professional engineer, to prepare a grading plan.

9Ms. Mauti engaged Steven Qi, a registered planner and Robert DeAngelis, a professional engineer with Condeland.

10All the witnesses were qualified as experts in their respective fields. Ms. Burns, one of the Applicants, also testified before the Tribunal. Her testimony was focused on the Committee and other properties in the City, where setback variances were granted by the Committee.

THE COMMITTEE DECISION

11The Tribunal is required by the Act to have regard to the decision of the Committee. The Appellant was very focused on the Committee decision and made extensive submissions on it. Her evidence was that Ms. Mauti was a former member of the Committee and this fact was not disclosed to her prior to the Committee proceedings and was not properly addressed by the Committee. The Committee hearing this case included members who had served with Ms. Mauti on the Committee in the past. Whatever relationship may have existed between Ms. Mauti and the Committee members who presided over the Applicant’s Minor Variance applications was not disclosed to the Appellant prior to the Committee proceedings.

12The Appellant made a formal complaint to the City’s Integrity Commissioner regarding the failure by the Committee members to disclose their relationship with Ms. Mauti.

13The Tribunal has no jurisdiction over the Committee’s compliance with the City’s Code of Conduct or the ethics of the Committee. The Tribunal has carefully reviewed the Committee decision. The only reason given for the decision not to allow the Applicant’s minor variance application was that it is not minor. The Committee’s failure to explain why the variance was not minor is the most important factor, in determining the weight that should be given to the Committee’s decision. While the Tribunal has regard for the Committee’s decision, it attributes no weight to it, since it identifies a conclusion without supporting reasons. The Tribunal finds that the Committee decision does not provide any guidance to the Tribunal in making its decision relating to the Minor Variance application.

14This is a hearing de novo of the Minor Variance application. The Tribunal is required to hear the evidence and submissions of the parties regarding this application and decide the case by applying the applicable legal tests.

WHETHER THERE IS UNACCEPTABLE ADVERSE IMPACT ON MAUTI PROPERTY?

15In making its decision on the Minor Variance, the Tribunal is required to assess it based on the four tests set out in s. 45(1) of the Act. In dealing with the four tests, it is important to initially address the issue of whether the Minor Variance will create an unacceptable adverse impact on the Mauti Property since this analysis will guide the Tribunal’s decision under s. 45(1) of the Act.

16Counsel for Ms. Mauti proffered evidence of a possible noise problem from the proposed pool and drainage issues arising from the proposed pool installation based on the Minor Variance, if granted.

17Mr. Qi referred to a report dated February 16, 2022, prepared by J.E. Coulter Associates Limited suggesting that there was a need to investigate a possible noise problem from the proposed pool. The Applicant objected to this evidence since the author of the report was not present to testify and be cross-examined. The Tribunal sustained this objection and this evidence was not considered by the Tribunal in making its decision. The City has a noise by-law to deal with any unacceptable noise from the Subject Property.

18On the possible drainage issues from the pool, creating an unacceptable adverse impact on the Mauti Property, the Tribunal heard evidence from Ms. Khan and Mr. Soscia for the Applicant and Mr. De Angelis for Ms. Mauti.

19All the individuals giving evidence regarding the drainage of the Mauti Property and the Subject Property, were in general agreement regarding the following facts:

1. The Subject Property is a split drainage lot, where the front yard drains to the street and the rear yard drains to the back of the lot, where there is a swale. The swale drains the water to a catch basin a few doors down from the Subject Property.
2. The Mauti Property drains from the rear yard to the front yard. Drainage water is taken from the rear yard by two side yard swales that drain the water from the rear yard to the front of the property.
3. The Mauti Property is higher than the Subject Property.
4. Sometimes the City requires proposed grading plans be prepared for pools where minor variances are sought, prior to considering the application. The criteria for imposing this requirement are unclear. A proposed grading plan was not required by City staff before the Minor Variance application was reviewed by City staff and presented to the Committee.
5. If the Minor Variance is granted, a pool cannot be constructed without a pool permit from the City.
6. The City has a comprehensive pool permitting process, which includes the submission of an acceptable grading plan. The grading plan must demonstrate to City staff that the drainage related to the proposed pool will function properly and not have any unacceptable negative drainage impact on surrounding properties, including the Mauti Property.

20Ms. Khan, a Development Engineering Reviewer, with the City, did not visit the Subject Property and her involvement with the file was limited to the review of the report prepared by her predecessor who has left the City. Ms. Khan’s testimony was restricted to what was in her colleagues’ report, which identified:

The owner is displaying an existing hard surface in a backyard that would result in a larger hard landscaping area of lot coverage. Storm water runoff will be impacted by the increased hard surface lot coverage. Staff advises that the owner employ Low-impact Development (LID) measures provided as part of a future grading permit such as rain barrels, flower beds, Bioswales, and permeable pavement, to decrease effect.

The Development Engineering (DE) Department does not object to Minor Variance Application A163/21 subject to the following condition(s):

The owner/applicant shall demonstrate the appropriate LID (Low-impact Development) measures and include them in the grading drawing to the satisfaction of DE in order to address the potential impacts of additional storm water runoff due to the small size of the backyard as indicated in the application.

21Mr. Soscia, an engineer and principal of Soscia Professional Engineers Inc. prepared a grading plan for the pool (“Soscia Grading Plan”). The Soscia Grading Plan was designed to show the proposed grading for the Subject Property once the proposed pool was installed.

22During cross-examination, Mr. Soscia admitted that the Soscia Grading Plan was merely a conceptual plan and needed more work. Winter weather conditions prevented the preparation of a plan with the actual grading levels on the Subject Property identified by a current survey, the grading levels from the pre-build site plan for the Subject Property filed with the City were used in the Soscia Grading Plan, and in error, the front elevations of the property were used in the rear in the Soscia Grading Plan and the rear elevations were used in the front. Despite Mr. Soscia’s admission that the grading plan was conceptual, he emphasized that in his professional opinion the drainage water would be carried from the rear of the Subject Property by the drainage swale to the catch basin a few doors down.

23Mr. De Angelis, who was retained by Ms. Mauti, completed a visual inspection of both the Mauti Property and the Subject Property during the winter of 2021 to 2022. His evidence was that, in his view, the application is preliminary and a final drainage plan should have been prepared before the consideration of the Minor Variance application. He did not give evidence that if the Minor Variance application is granted by the Tribunal, definite drainage issues would result on the Mauti Property.

24Based on the evidence regarding drainage, the Tribunal finds that there is no clear evidence of an unacceptable adverse impact to the Mauti Property. Two experts, Ms. Khan and Mr. Soscia, have testified that the development of a final grading plan for the proposed pool, should not represent an issue if it is developed at the pool permitting stage. Mr. De Angelis, is of the view that it should be developed before the pool permitting stage since sometimes the City requires this of certain property owners, proposing pools requiring minor variances. There were no written criteria for making this a requirement and based on the evidence, the Tribunal finds that this is a matter of engineering judgement by the City’s Development Engineering Department.

25The Tribunal is not prepared to impose a requirement that the Appellant’s develop an appropriate grading plan prior to the pool permitting stage. The City has a comprehensive pool permitting process designed to identify any adverse impacts to surrounding properties, including the Mauti Property. The Tribunal rules that the City is capable of making an appropriate decision on whether the pool permit should be granted based on the application requirements, which will include an appropriate grading plan, fencing plan and other requirements. The Tribunal finds that there is no evidence before it that the drainage from the Subject Property will result in an unacceptable adverse impact to the Mauti Property.

REVIEW OF THE MINOR VARIANCE APPLICATION UNDER S. 45(1) OF THE ACT

26Given the conclusion on the issue of the unacceptable adverse impact to neighbouring properties, the analysis of the application based on the evidence before the Tribunal under s. 45(1) must be completed to determine if it should be authorized.

1. Does the Variance maintain the general intent and purpose of the Official Plan (“OP”)?

27The planning evidence identified that the Subject Property is designated as Low Rise Residential under the City Official Plan (“OP”). Section 2.1.3.2 of the OP requires that future growth ensure that the character of the established community be maintained. Section 3.6.6 requires that storm water management be appropriately addressed by new development.

28The Tribunal did not find the evidence of Mr. Qi or Mr. Torres helpful on the conformance of the Minor Variance application with the OP.

29Extensive evidence was presented by both the Applicant and Mr. Qi of other pools within the City, where minor variances were granted. Mr. Qi identified that no Minor Variance application was granted for minimum rear yard setback reductions in the immediate neighbourhood but a minor variance application was granted at 30 Mondavi Road, the same street where the Mauti Property is found, for a reduced side yard setback, where the overall pool size was smaller.

30On a practical level, the Tribunal finds nothing in the Minor Variance application for a pool with reduced setbacks that offends the intent and purpose of the OP. An unacceptable adverse impact on surrounding properties has not been shown and if the final grading plan for the proposed pool will result in an unacceptable negative impact on the Mauti Property or others, there is a City pool permitting process designed to address it.

2. Does the Variance maintain the general intent and purpose of the Zoning By-law (“ZB”)?

31According to the planning evidence, the Subject Property is zoned “RV4-WS-9” under the ZB. This zoning permits wide shallow lots. The setbacks in the ZB were set in the way where they are to encourage respectful development, which respects privacy, provides adequate access and amenity space, and properly accommodates the drainage. Mr. Torres opined that the proposed development would be in keeping with the intent and purpose of the ZB while Mr. Qi’s opinion differed. The Tribunal prefers the evidence of Mr. Torres. Mr. Qi’s evidence was that the proposed development would not be in keeping with the intent and purpose of the ZB, due to possible drainage concerns and possible privacy concerns due to the proximity of the pool to the 6-foot rear yard fence separating the Mauti Property and the Subject Property. The Tribunal does not find this evidence to be convincing. The City has a comprehensive pool permitting process to address these issues before a permit is issued. Furthermore, Ms. Burns already has a proposal to address any privacy issues by adding slats to the current fencing.

3. Minor and Desirable?

32The Tribunal finds that the proposed Minor Variance is minor in nature since it proposes reducing the minimum setbacks required by the ZB to a bit less than two thirds of the requirements of the ZB and there is no clear unacceptable adverse impact from the proposed pool to the Mauti property or any others in the neighbourhood. In the Tribunal’s view, the addition of a pool will be a desirable development on the Subject Property.

33In summary, the application for a minor variance complies with the requirements of s. 45(1) of the Act. It is minor, desirable for the use and development of the Subject Property and maintains the general intent and purpose of both the OP and the ZB.

34The City requested that the condition identified in Appendix 1 be imposed if the minor variance is allowed and the Applicant has no objections to it.

ORDER

35THE TRIBUNAL ORDERS that:

36The appeal is allowed and the minor variances to the Subject Property are hereby authorized subject to the condition in Appendix 1.

“A. Cornacchia”

A. CORNACCHIA

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.

APPENDIX 1

OLT-21-001458 - 38 Ventana Way

City of Vaughan - Requested Conditions of Approval

1. The Owner/Applicant shall demonstrate the appropriate LID (Low-impact Development) measures and include them in the grading drawing to the satisfaction of DE in order to address the potential impacts of additional storm water runoff due to the small size of the backyard as indicated in the application.