Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 13, 2022

CASE NO(S).: OLT-21-001461

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

Applicant: Jodie Erlick

Appellants: Elm Thornhill Woods Inc. and Elliot Steiner

Subject: Minor Variance

Property Address/Description: 32 Elmway Court

Variance from By-law: 1-88

Municipality: City of Vaughan

Municipal File No.: A100/21

OLT Lead Case No.: OLT-21-004161

OLT Case No.: OLT-21-004161

OLT Case Name: Elm Thornhill Woods (2013) Inc. v. Vaughan (City)

Heard: March 25, 2022 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Jodie Elrick Dr. Craig Bellamy	Self-Represented Self-Represented
Elliot Steiner – Elm Thornhill Woods (2013) Inc. - Appellants	Meaghan McDermid*
City of Vaughan	Gurnick Perhar*

DECISION DELIVERED P. TOMILIN AND A. CORNACCHIA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal by Mr. Steiner and Elm Thornhill Woods (2013) Inc. of the decision of the City’s Committee of Adjustment (“COA”) authorizing a minor variance application for reduced wood lot setbacks and side yard setbacks to facilitate the construction of a pool and cabana on the property municipally known as 32 Elmway Court., Vaughan (“Subject Property”). Mr. Steiner, is the co-owner of 38 Elmway Court (“Appellants’ Property”) the property immediately adjacent to the Subject Property and is the principal of Elm Thornhill Woods (2013) Inc (“Elm”). Elm is the developer of the Elmway Court subdivision where the Subject Property is located.

AREA AND SITE CONTEXT

2The Subject Property is a 718 square metre property with 14.72 metres (“m”) frontage and an existing 2 storey dwelling. The Subject Property is part of the Elmway Court subdivision developed by Elm. The Subject Property is surrounded by single detached residential dwellings to the south and west. The Subject Property and the Appellants’ Property have a swale at the rear and a side yard swale along the shared property line (Exhibit 3, Figures 4, Photos 4,9, 10). To the immediate east of the Subject Property is a public walkway path and Thornhill Woods – Woodlot 3, which is approximately 3.1 hectares (7.6 acres) in size (Exhibit 3, Figures 4, Photos 3, 5, 7) and to the south-east there are single detached residential dwellings. Approximately 200 m south of the Subject Property is Sugarbush Woodlot and Heritage Park. To the north is Thornhill Woods Park and north of that is the Thornhill Woods Public School. The Subject Property is designated “Low-Rise Residential”, “Parks”, and “Natural Areas” under the Vaughan Official Plan 2010. (“VOP”)

3The Applicants of the Subject Property has submitted an application for the relief from Zoning By-law (“ZB”), to permit the construction of a proposed swimming pool and cabana. The following variances are being requested from ZB, to accommodate the above proposal:

1. The minimum proposed setback from OS4 Open Space Woodlot Zone to the swimming pool to be 1.57 metres, from the by-law requirement of 10.0 metres.
2. The minimum proposed setback from OS4 Open Space Woodlot Zone to the accessory building is 1.69 metres from the by-law requirement of 10.0 metres.
3. The minimum proposed interior yard to the accessory building is 0.65 metres from the by-law requirement of 1.2 metres.

4The City Planning report which was a short email dated August 5, 2021 recommended the approval of the Minor Variances (“MV”) subject to a condition included in the COA decision (“City’s Planning Report”). The reasons for the recommendation were not comprehensive and expressed conclusions without any supporting analysis. Essentially, the planner concluded that with the reduced rear yard setback, there was sufficient space between the woodlot and the rear of the Subject Property due to a walking path separating them. The City’s development engineering department, responsible for the review of grading, had no objections to the MV.

5The COA followed the advice in the City’s Planning Report and approved the MV application with the recommended condition:

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

HEARING

6Dr. Bellamy, one of the Applicants, an accomplished Dentist, was self-represented and testified on his own behalf. He did not present any planning or engineering witnesses from the City or otherwise.

7The Appellant were represented by legal counsel and presented two witnesses: Harold Reinthaler, a Civil Engineer, and Mark J. McConville, a Planner.

MR. REINTHALER TESTIMONY

8Mr. Reinthaler was qualified by the Tribunal to provide expert opinion evidence in civil engineering. The firm where Mr. Reinthaler worked completed the grading plan for the subdivision where the Subject Property is located. The grading of the subdivision has been certified but has not been assumed by the City. Elm has a financial obligation to the City until the subdivision that includes Subject Property is assumed by the City.

9Mr. Reinthaler explained the current grading of the Subject Property. The Subject Property backs onto a Woodlot and the Woodlot bordered by a walking path is at a higher grade. The rear yard slopes to the rear of the Subject 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 where the storm water drains into a catch basin. Another swale runs between the Subject Property and the Appellants’ Property which carries run-off to the rear yard swale.

10There will be a number of significant changes that will need to be made to the Subject Property for the proposed pool and cabana. The overall grading of the property must be changed with additional soil added to the back yard to flatten it to accommodate the pool and cabana. In addition, along the side yard, the grade will be increased relative to the Appellants’ property and retaining wall and water retention area will be added along the property line adjacent to the side yard swale.

11Mr. Reinthaler opined that at this time there is insufficient information in the proposal to assess if stormwater will be properly and safely conveyed from the Subject Property to the rear yard swale and catch-basin and not result in any adverse drainage impacts on the Appellants’ Property.

12The impervious land cover resulting from the large pool and cabana will increase the amount of surface runoff. Any drainage swales may be too flat and could result in reverse drainage, causing ponding, on the Appellants’ property resulting in a loss of the use and enjoyment of the rear yard, an unacceptable adverse impact.

MR. MCCONVILLE TESTIMONY

13Mr. McConville was qualified by the Tribunal to provide expert opinion evidence in the area of Land Use Planning. In his testimony Mr. McConville relied on the professional opinion of Mr. Reinthaler.

14Mr. McConville explained that the Subject Property and the Appellants’ Property are the only properties on Elmway Court that back on to a Woodlot and are subject to the increased woodlot rear yard setback of 10 m designed to act as a buffer.

15In the opinion of Mr. McConville, the proposed MV for a construction cabana and pool does not meet the four tests of the Planning Act under s. 45 (1) and should not be granted.

ISSUES AND ANALYSIS

1) Does the proposal maintain general intent and purpose of the Official Plan?

16The Subject Property is identified as being located within the “Community Area” of City of Vaughan’s Urban Structure in accordance with Schedule 1 of the City of Vaughan Official Plan 2010 (“VOP 2010”). It’s the intent of VOP 2010 that no changes be made through minor variances that would permit development within Established Community Areas that is not compatible to and does not reinforce the overall physical character of the Subject Property’s surrounding physical contexts.

17Mr. McConville opined that Policy 3.3.3.2 of the VOP 2010 applies. This policy states:

That an application for development or site alteration on lands adjacent to woodlands will not be considered by Council unless: a. the precise limits of any woodland within the area of the application have been established to the satisfaction of the City; and b. an evaluation is carried out to determine that the required minimum vegetation protection zone between the woodland and the proposed development is sufficient to maintain or enhance existing functions, attributes and linkages of the woodland.

Site Alteration is defined in VOP 2010 as:

When applicable to lands outside of the Oak Ridges Moraine Conservation Area and the Greenbelt Plan Area: Activities, such as grading, excavation and the placement of fill that would change the landform and natural vegetative characteristics of a site.

18Mr. McConville advised the Tribunal that such a woodlot study was completed in all other cases where variances were requested for properties in the area backing onto this woodlot. The environmental study was not requested by the City and was not completed contrary to the VOP 2010.

19The Tribunal finds that the MV does not maintain the general intent and purpose of VOP 2010 due to the absence of a woodlot study.

2) Does the proposal maintain the general intent and purpose of the City’s Zoning By-law?

20The ZB regulates the use of lands in the City of Vaughan, and the scale/massing, location and use of buildings and structures. Subject Property is zoned Residential Urban Village Three (on a wide and shallow lot) RV3(WS) Zone with site specific exception 9(1063), according to Key Map 2C (Exhibit 3, Figure 14).

21Site Specific Schedule E1163C also zones the Subject Property Residential Urban Village Three (on a wide and shallow lot) RV3(WS) Zone (Exhibit 3, Fugure 15).

22Site specific exception 9(1063) (Exhibit 2, Tab 24, Pgs 393 and 394) provision A. states:

The following provisions shall apply to the lands shown as “Subject Lands” on Schedule E1163C. Provision A. ci) states, in part: “The lands zoned RV3(WS) Zone, OS2 Open Space Park Zone, and OS4 Open Space Woodlot Zone shall comply with the zone standards shown on Schedule “T-114.

23Schedule “T-114” (Exhibit 2, Tab 24, Pg. 398) provides for the site-specific provisions for the RV3(WS) Zone, which includes but is not limited to:

a. A minimum rear yard setback of 6.0m subject to notation 18, (Exhibit 2, Tab 24, Pg. 402) which is applicable here and states, in part: The minimum setback from an OS4 Open Space Woodlot Zone for all buildings, structures, and pools shall be 10 metres.

b. A minimum side yard setback of 1.2 metres with notations, which are not applicable.

24The ZB provides setbacks from the property line to minimize the possibility of adverse impacts on the woodlot and the adjacent property belonging to the Appellant. The planning evidence identified that the proposed cabana creates significant massing close to the fence dividing the Subject Property from the Appellants’ Property. There is the potential for unwanted overlook due to its scale and proximity to the property line. Furthermore, the side yard and rear yard setbacks are designed to ensure that there is sufficient space for the drainage system of the lot to operate properly. The absence of grading plans, given the extensive grading changes that will occur to the Subject Property, provide the Tribunal with no assurance that the proposed revised grading for the Subject Property will operate properly without an undue adverse impact. Thus, the Tribunal finds that the proposed MV does not maintain the intent and purpose of the ZB due to the possible adverse impacts resulting from the proposed development.

3) Is the proposal desirable for the development and use of the lands?

25The proposed cabana creates a significant massing with the potential for unwanted overlook due to its scale and proximity to the property line, including views from the public walkway as well as from the Appellant’s property.

26Due to the Subject Property’s unique location abutting Thornhill Woods Woodlot 3, as well as the public walkway that connects the neighbourhood to the park and Woodlot. The proposed cabana would constitute a significant intrusion in what is meant to be a more natural and open area. A much more significant setback is required under the ZB for all properties backing onto the woodlot.

27The proposed development will alter the existing topography and drainage patterns on the Subject Property and according to the evidence of Mr. Reinthaler insufficient information has been provided to determine if stormwater will be properly and safely conveyed on and from the Subject Property.

28The Tribunal finds that the proposed MV is not a desirable development of the Subject Property due to the unacceptable potential adverse impacts.

4) Is the proposal minor in nature?

29The planning evidence was clear. The variances sought are not minor in nature due to the negative impacts to the adjacent property with regard to massing of the proposed cabana and the possible impacts to drainage outlined in the previous tests.

30The Tribunal finds that the requested MV are not minor in nature due the unacceptable adverse impacts.

CONCLUSIONS

31The Tribunal has considered the oral evidence given by the Applicant, the COA decision and the City’s Planning Report. The City’s Planning Report, which formed the basis for the COA decision, could not be given much weight due to the minimal reasons provided for the recommendation and the fact that the City’s planner did not testify. This hearing was a trial de novo of the MV application. The Tribunal finds the uncontested evidence the Appellants’ experts was persuasive in showing that the MV application does not comply with the criteria established in s. 45(1) of the Planning Act.

ORDER

32THE TRIBUNAL ORDERS that the appeal is allowed and the request for minor variances to By-law No. 1-88 are not authorized.

“P. Tomilin”

P. Tomilin MEMBER

“A. Cornacchia”

A. Cornacchia 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.