Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 22, 2022
CASE NO(S).: OLT-21-001697
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Anna Cardwell
Subject: Minor Variance
Property Address/Description: 2 Winterlude Court
Variance from By-law: By-law 1-88
Municipality: City of Vaughan
Municipal File No.: A083/20
OLT Lead Case No.: OLT-21-001697
OLT Case No.: OLT-21-001697
OLT Case Name: Cardwell v. Vaughan (City)
Heard: March 17, 2022 by video hearing; and April 14, 2022 in writing
APPEARANCES:
Parties Counsel
Anna Cardwell Jonathan Frustaglio
Humberplex Developments Gerard Borean
DECISION DELIVERED BY S. deBOER AND M.A. SILLS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the hearing of the appeal by Anna Cardwell (the “Applicant”) from the decision of the City of Vaughan’s (“City”) Committee of Adjustment (“COA”) to refuse an application for a minor variance for the property located at 2 Winterlude Court (“subject property”).
2The subject property is designated Low-Rise Residential in the City’s Official Plan (“OP”) and is zoned R-1 Residential Zone by Zoning By-law No. 1-88 (“ZBL”).
3The R-1 Zone requires that where the area of a rear yard of a lot is greater than 135 square metres (“sq m”), a minimum of sixty percent (60%) of the portion of the rear yard in excess of 135 sq m shall be composed of soft landscaping. In this case, a total of 42.93% (53.0 sq m) of soft landscape area is provided.
4Humberplex Development Inc. (“Humberplex”), represented by Gerard Borean, requested and was granted Party Status. Humberplex was the developer of the subdivision (Registered Plan 65M-38950) in which the subject property is situated, and according to information provided in the Request for Party Status Form, continues to own lots within the subdivision for which the City continues to hold securities.
5Humberplex’s opposition to the minor variance application is essentially that an increase in the hardscape area of the property will increase the volume of rainwater run-off and will affect drainage to neighbouring properties, which in turn has the potential to impact the stormwater management system and holding pond.
Background to the Application
6The Applicant purchased the subject property in July 2021. The property features outdoor amenities including a pool, hot tub, garden and a bocce court, all of which the new owner wants to maintain.
7The bocce court was installed by the former property owner, Matthew Aquino, about 5 years before the Applicant acquired the property. At some point it was realized that the property did not meet the rear yard soft landscape area zoning standard. Prior to selling the property (circa October 30, 2020) Mr. Aquino applied for a minor variance to regularize the existing soft landscaped area of the rear yard.
8At the time that Mr. Aquino submitted the application the subdivision had not been assumed by the City and was subject to a private Agreement of Purchase and Sale (“APS”) dated July 21, 2009. One of the conditions of the APS was that the owner of a property was required to obtain consent from Humberplex and its consulting architect and engineer prior to submitting a minor variance application.
9Mr. Aquino had not obtained the necessary approval prior to submitting the application, and for that reason, at a meeting on September 9, 2021 the COA adjourned the application sine die “to permit time for the applicant to obtain approval from the developer”.
10Mr. Aquino subsequently sold the property to the Applicant, who then assumed the minor variance application with the consent of the City. The application was again before the COA on September 30, 2021, at which time it was refused.
11Notable are the comments contained within the report of the Development Planning Department (“DPD”) to the COA:
The variance for the reduction in soft landscaped area is considered minor in nature as the surface of the bocce court is pervious and will allow for drainage. While the bocce court does not meet the definition of “soft landscaping” by Zoning By-law 1-88, it will contribute to the overall drainage capacity of the rear yard thereby, mitigating any drainage impacts potentially caused by reduced soft landscaping in the rear yard. Development Engineering staff have reviewed the materials used in the construction of the bocce court and have no objections. Accordingly, the Development Planning Department is of the opinion that the proposal is minor in nature, maintains the general intent and purpose of the Official Plan and Zoning By-law, and is desirable for the appropriate development of the land. The Development Planning Department recommends approval of the application.
12Likewise, the commentary contained in the Development Engineering Department (“DED”) Report is informative:
The Development Engineering Department has reviewed the minor variance for the proposed 42.9% soft landscaping within the rear yard when a total of 60% is required and has received confirmation from the applicant that the Bocce Court within the rear yard is pervious and allows for drainage. Based on the review of the materials used for the Bocce Court, Development Engineering Department has confirmed that the court is permeable and allows for drainage and will include it as a soft landscaping calculation. In addition, the applicant had submitted a Stormwater Drainage Assessment which clearly identifies that the Bocce Court has provided a reduced Storm Discharge Rate when compared to sod. In the event, that the Bocce Court cannot be deemed soft landscaping it has been proven to have reduced stormwater surface discharge which eliminates the concerns of additional stormwater entering into the storm system. With this information, Development Engineering Department has no concerns or objections to minor variance application.
13In refusing the application, the COA cited the following reasons:
a. The requested variance(s) is/are not desirable for the appropriate development of the subject lands; and
b. The requested variance is/are not minor in nature.
Evidence of the Applicant
14The Applicant called two witnesses; Ian Robertson, a landscape planner and the designer/builder of the bocce court; and Bradley Steeves, a Civil Engineer Technologist with the City’s Development Engineering Department.
15Essentially, Mr. Robertson adopts and concurs with the planning analysis and recommendation of the DPD to the COA, and relies on the technical assumptions and findings detailed in the DED Report and the Stormwater Drainage Assessment report prepared by Mr. Albanese.
16For context; the ZBL definition of “Landscape, Soft” (“softscape”) and “Landscape, Hard” (“hardscape”) are provided below:
Landscape, Soft: Means open land used for the growth and maintenance of grass, flowers, shrubs, trees, similar vegetation or horticultural elements, including artificial turf provided it is permeable, but shall not include a building, structure, parking space, loading space, aisle, or driveway.
Landscape, Hard: Means an area of land surfaced by materials such as unit pavers, patio stones, concrete, decorative stonework or other architectural elements designed and used to enhance the visual amenity of a property.
17By way of background, a grading plan for the subject property was designed by Mr. Robertson and reviewed and approved by Condeland Engineering on July 22, 2019. The interpretation of the City’s Zoning Department was that the bocce court was to be included in the hard landscape area calculation because the materials used does not fall under the definition of ‘soft’ landscaping as set out in the ZBL. It is that interpretation that gave rise to the requirement for a minor variance.
18According to Mr. Robertson, the material below the surface of the bocci court consists of crushed rock mostly made up of limestone. These materials, while not included on the list of what is defined as soft landscape in the ZBL, are used as a base material for other finishing materials such as unit pavers, patio stones etc.
19It is his position that even though the bocce court does not meet the definition of ‘soft landscaping’ as set out in the ZBL, it does contribute to the overall drainage capacity of the rear yard, thereby, mitigating any drainage impact potentially caused by the reduced soft landscape area of the rear yard.
20In fact, the DED staff report confirmed that based on its review of the materials used the bocce court is permeable and allows for drainage. On that basis, the DED included the bocce court in the calculation of the soft landscaping area.
21Mr. Robertson also pointed out that if the limestone were to be considered softscape – as it was by the DED – then the soft landscape area would be 69%, which exceeds the 60% minimum required by the ZBL, and in which case a variance is not required.
22Mr. Robertson next directed the Tribunal to the Stormwater Drainage Assessment Report prepared by Paolo F Albanese (Fabian Papa and Partners), wherein it is stated:
although a sodded surface will traditionally have less stormwater runoff than a crushed granular surface (based solely on their accepted coefficients), it can be clearly seen in the previous sections that this particular bocce court, with the enclosed elevated timber border/wall around the perimeter, will discharge less stormwater than a sodded surface. This bocce court goes one step further and has no discharge during a minor 5-year storm event as it will block and trap all stormwater discharge and force it to infiltrate the granular layers into the native soil.
23Mr. Robertson also pointed out that the DPD supports the application on the basis of its conclusion that the variance for the reduction in soft landscaped area is considered minor in nature. That conclusion is drawn based on the finding of the DED that the bocce court is pervious and will allow drainage.
24Mr. Steeves is the City’s Development Engineering Project Coordinator. He affirmed that based on a review of the materials utilized in the construction, the DED has confirmed the bocce court is permeable and allows for drainage.
25Furthermore, the City assumed the municipal services in Registered Plan 65M-3895 on April, 20, 2021 (By-law No. 043-2021). The bocce ball court was not an outstanding issue when the City assumed the services of the subdivision. Moreover, once the City assumes control of the municipal services for a subdivision, any issues that may occur with these services are the responsibility of the City.
26In fact, the City has confirmed that the developer is not responsible for any drainage issues related to the Applicant’s property or any drainage issues related to the overall stormwater management plan, nor does the Applicant require the consent of the developer for the minor variance application. Lastly, Mr. Steeves stated he is not aware of any other monies that are being held against the developer for any outstanding lot issues.
Submissions by Humberplex
27Humberplex called two witnesses: Claudio Brutto and Robert De Angelis.
28Mr. Brutto is a registered professional planner and was the planning consultant and designer of the subdivision. It is his professional opinion that the application fails all four of the statutory tests for the approval of a minor variance. In particular, the proposed variance is not minor in nature, and if it is approved will set a precedence and allow other property owners to make similar applications in the future.
29Mr. Brutto explained that this subdivision and other surrounding subdivisions required a stormwater management pond to be created in order to manage any stormwater issues. The subdivision has been designed based on a surface area coverage of 50% impermeable or hard surface area of the entire lot. By increasing the area of hard surface, the Applicant is increasing the volume of rainwater runoff for the lot, and thereby, exceeding the allowable volume.
30In regard to the four tests; it is his opinion that the proposed variance does not address the key policy provision in s. 9.1.3.1 i) – Sustainable Development, of the OP.
9.1.3.1. To develop Green Development Standards, in consultation with the building and construction industry, and, where appropriate, specific and feasible standards may be established to:
i. maximize permeable surfaces, including the provision of permeable driveways
31Rather, it is his contention that the increase in hard surface area resulting from the bocce court causes the volume or rainwater runoff to increase and exceed the allowable value, and ultimately, will not meet the stormwater management requirements for the area.
32The proposed variance also fails to maintain the general intent and purpose of both the applicable and the new comprehensive ZBLs. The general intent and purpose of the ZBL is to ensure that soft landscaping is composed of trees, shrubs, flowers, grass and other horticultural elements. Section 4.1.2.b) requires that where the area of a rear yard of a lot is greater than 135 sq m a minimum of 60% of that portion of the rear yard in excess of 135 sq m shall be composed of soft landscaping. The intent of this provision is to establish a minimum amount of permeable ground surface area on residential lots that will ensure that rainwater runoff can be controlled in-situ, and not adversely impact the stormwater management systems in place. The reduction from 60% to 42.9% soft landscaping, is in his opinion averse to the general intent of the ZBL, and averse to the 50% impermeable surface coverage design of the subdivision.
33The ZBLs are also clear in that they do not include limestone/granular materials as a soft landscaping feature nor do they permit the soft landscape integrity of the area of a rear yard greater in area than 135 sq m to have a coverage below 60%.
34In regard to the test of minor, it is his opinion that a reduction in soft landscaping from 60% to 42.9% is significant and would cause the allowable stormwater runoff volume to be exceeded. The limestone granular material used for the bocce court is a hardscape element that has limited impervious qualities and will not mitigate the increased runoff volumes, which in his opinion, will negatively impact the softscape provisions and stormwater management integrity of the area. It is therefore his opinion that the variance is not minor in nature.
35Lastly, it is his contention that for the variance to be considered desirable for the appropriate development of the lands it needs to be compatible with the stormwater design provisions of the subdivision. The proposed variance will result in a rear yard with excessive hard surfaces that will be a detriment to the runoff capacity of the lot as indicated by Humberplex’s consulting engineer. The bocce court increases the impermeable surface coverage of the lot above the 50% requirement which increase the volume of stormwater runoff, which will then adversely affect the stormwater drainage conditions and may cause water stagnation which can lead to other issues. It is also his opinion, that the proposed variance would facilitate the deterioration of the runoff capacity of the lot, and as such is an inappropriate development and use of the property.
36Moreover, allowing the variance may provide a precedent for other lots within the subdivision to pursue similar conditions, which in his opinion, is incompatible with the surrounding lands and the larger neighbourhood as a whole.
37In response to an inquiry from the Tribunal, Mr. Brutto confirmed that Humberplex still owns Lots 2, 73, 74 and 78.
38Mr. Robert De Angelis, of Condeland Consulting Engineers and Project Managers, is a Civil Engineer.
39Mr. De Angelis asserts that the limestone/granular materials are not soft landscaping and the Albanese Report is flawed and cannot be relied upon. As the consulting engineer for the Humberplex development, it is his professional opinion that the bocce court cannot properly be utilized as a stormwater storage facility as the materials utilized to construct same are not of sufficient permeability.
40Mr. De Angelis claims that the Albanese Report did not do any testing of the materials to confirm that these were in fact the actual materials used, nor does the report take into context the underlying soil condition. In his opinion, the soils beneath the bocce court (silty clay) would change the percolation rates as recorded in the Albanese report. It is his contention that core samples need to be taken and tested in order to confirm the true percolation number.
Analysis and Findings
41In arriving at its decision, the Tribunal has reviewed the material evidence provided by the parties and the municipal reports, considered the evidence and opinions of the witnesses, and had regard to the written submissions of counsel.
42As a starting point, in the event there remains any doubt it is confirmed that the City assumed the responsibility for the municipal services of Registered Plan 65M-3895 by virtue of the enactment of By-law Number 043-2021 by the Council of the City of Vaughan on April 20, 2021.
43In that regard, the Tribunal agrees and confirms that the Applicant does not require the consent of Humberplex to submit a planning application, in this instance the minor variance application.
44Following from that, the Tribunal is not otherwise aware of any interest that Humberplex holds in this minor variance application. To the extent of the facts as they are known to the Tribunal, Humberplex does not own or possess a financial interest in the subject property, or any of the properties within the notification zone, adjacent to, or in the vicinity of, the subject property. The Tribunal notes that the remaining lots under the ownership of Humberplex are located at a distance from the subject property.
45In assessing the merits of the minor variance application, and from a practical and reasonable perspective, the Tribunal prefers and accepts the evidence and opinions of Messrs. Robertson and Steeves. The Tribunal further relies on the reports provided by the DPD and the DED.
46The Tribunal acknowledges the concerns and potential outcomes identified in the evidence of Messrs. Brutto and De Angelis, but in this case, the bocce court has been in existence in its current location and form for more than 5 years without any reported or known occurrence of ground water-related incident.
47Mr. Robertson stated that the materials used in the construction of the bocce court are permeable and contribute to the overall drainage capacity of the rear yard, as did the DPD, and Mr. Steeves reported that the DED also concluded that the rear yard is pervious and allows for drainage.
48Mr. De Angelis made a point about the lack of technical studies to validate the findings contained in the Albanese Report, but he also has not carried out any technical studies to support his assertions. In fact, Humberplex has not demonstrated to the Tribunal in any palpable way that the continued existence of the bocce court poses a threat to the properties either within the immediate vicinity of the subject property or the subdivision as a whole, the stormwater management system, including the holding pond. The Tribunal does not recognize or accept ‘apprehension of impact’ as a valid consideration in deciding a planning application.
49It is the finding of the Tribunal that the criteria set out in s. 45(1) of the Planning Act has been met. The Tribunal is satisfied that the general intent of the OP and the ZBL is being appropriately maintained. The variance will allow for the continued use and enjoyment of an outdoor recreational amenity that has existed for 5 years without any known adverse impact to adjacent properties, the stormwater management system or the subdivision on whole. The variance is minor and technical in nature.
ORDER
50THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 1-88 is authorized.
“S. DeBoer”
S.deBOER MEMBER
“M.A. Sills”
M.A. SILLS VICE-CHAIR
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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.