Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 11, 2024
CASE NO(S).: OLT-23-000583
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Charles DiMaria
Subject: Minor Variance
Description: To permit a cabana
Reference Number: A05/23
Property Address: 194 Polo Crescent
Municipality/UT: City of Vaughan
OLT Case No.: OLT-23-000583
OLT Lead Case No.: OLT-23-000583
OLT Case Name: DiMaria v. Vaughan (City)
Heard: October 25, 2023 and November 20, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Charles DiMaria | Alexandra Whyte |
| City of Vaughan | Zaynab Al-waadh |
DECISION DELIVERED BY JENNIFER GOLD AND ORDER OF THE TRIBUNAL
1Charles DiMaria (“Applicant”) appealed the May 2023 decision of the Committee of Adjustment (“COA”) of the City of Vaughan (“City”) to approve an application for two minor variances for the property at 194 Polo Crescent (“Subject Property”). The Applicant requires the variances to permit an already-constructed cabana in the rear yard of the Subject Property and sought relief from s. 4.1.2.b of Zoning By-law No. 001-2021 (“ZBL”) as follows:
To permit a residential accessory structure (cabana) with a height greater than 2.8 metres (“m”) be located at a minimum 0.6 m from the rear lot line, whereas the ZBL requires a rear yard setback of 2.4 m [s. 4.1.2.b] (“Variance #1”); and
To permit a residential accessory structure (cabana) with a height greater than 2.8 m to be located at a minimum of 0.6 m from the interior side lot line, whereas the ZBL requires an interior side yard setback of 2.4 m [s. 4.1.2.b] (“Variance #2”).
2In its decision, the COA approved Variance #1 with a condition regarding lot grading and/or servicing and refused Variance #2. According to the Staff Report issued for the COA hearing, the City’s Development and Planning Department had no objection to Variance #1 for the reduced rear yard setback to the cabana as it will not pose adverse visual impacts on the neighbouring property to the rear. However, the Development and Planning Department objected to Variance #2. The City’s Development Engineering Department recommended a condition of approval that the Applicant obtain a Lot Grading Permit from the Development Inspection and Lot Grading Division of the City’s Development Engineering Department, as the proposed cabana is greater than 10 square metres (“m²”). The Applicant is agreeable to this condition.
3David Igelman, a planner qualified to give expert land use planning opinion evidence, testified in support of the application. Joshua Cipolletta, a planner with the City, qualified to give expert land use planning opinion evidence, testified against the application. The Tribunal received a request for Party status from Mr. Rob Costabile who owns the property directly adjacent to the Subject Property. After informing him of the role of a Party and role of a Participant, Mr. Costabile withdrew his request for Party status and was granted Participant status. His written submission was reviewed by the Tribunal.
4The Tribunal received the following that were marked as Exhibits for the hearing:
Exhibit No. 1: Witness Statement of David Igelman dated October 16, 2023 including his Acknowledgment of Expert’s Duty
Exhibit No. 2: Document Book of the Applicant
Exhibit No. 3: Document Book of the City
Exhibit No. 4: Witness Statement of Joshua Cipolletta dated October 16, 2023 including his Acknowledgment of Expert’s Duty
BACKGROUND
5The Subject Property is located within an existing neighbourhood which consists of mostly single-detached residential dwellings that are typically one to two storeys in height. The Subject Property is currently occupied by a two-storey single-detached residential dwelling, an existing pool and the cabana which the Applicant seeks to legalize. The cabana consists of an enclosed washroom, pool equipment room, and a covered outdoor lounge area. The roof of the cabana is a flat roof although it does slope downwards from the south to the north which results in a slight lower height of 2.7 m in closer proximity to the adjacent dwelling at 188 Polo Crescent as compared to the peak of the roof closer to the pool.
6Although the variances sought remain the same, the application before the COA was based on an assumption of the wall thickness as at the time as details of specific siding material were not determined and the cabana did not have siding on it. Since then, confirmation of the siding materials to be placed on the main walls of the cabana have been confirmed and the proposed setbacks to the side and rear lot lines have been increased to 0.76 m from the previously proposed 0.6 m. As such, the two variances requested are the following:
- Requested Variance #1
To permit a residential accessory structure (cabana) with a height greater than 2.8 m to be located at a minimum of 0.76 m from the rear lot line.
(Section 4.1.2.b of ZBL 001-2021 requires that 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)
- Requested Variance #2
To permit a residential accessory structure (cabana) with a height greater than 2.8 m to be located a minimum of 0.76 m from the interior side lot line
(Section 4.1.2.b of ZBL 01-2021 requires that 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 (s. 4.1.2.b, ZBL 001-2021).
LEGISLATIVE FRAMEWORK
7An appeal pursuant to s. 45 of the Planning Act (the “Act”) is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that each of the requested variances:
(a) maintains the general intent and purpose of the Official Plan (“OP”);
(b) maintains the general intent and purpose of the ZBL;
(c) is minor in nature; and
(d) is desirable for the appropriate development or use of the land building or structure.
8In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter, in this case the application for variance, must be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest, as well as regard for the decision of the COA and the information considered by it in the course of making that decision.
9The opinion of the Applicant’s planner, David Igelman, was that the proposed variances met the four tests as per s. 45(1) of the Act and is consistent with the PPS and Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The opinion of the City’s planner, Joshua Cipolletta, was that Variance #2 did not meet three out of the four tests; specifically, that it is (a) not minor in nature, (b) not desirable or appropriate for the use of the land, and (c) does not maintain the general intent and purpose of the Zoning By-law. He also opined that Variance #2 is not appropriate from a land use planning perspective.
Maintain the General Intent and Purpose of the OP
10The York Regional Official Plan designates the Subject Property as “Community Areas” as per Map 1A – Land Use Designations map. Policy 4.2.2 of the York Region Official Plan states that Community Areas shall contain a wide range and mix of housing types, sizes, tenures that include options that are affordable to residents at all stages of life. The Subject Property is designated “Low-Rise Residential” by the Vaughan Official Plan 2010 (“VOP 2010”). This designation permits residential units, parks and open spaces, small-scale community facilities, small-scale convenience retail, places of worship, a daycare within a school, place of worship or community centre, home occupations, and public safety services. The Subject Property is located within an Established Community Area according to Schedule 1 of VOP 2010.
11Policy 2.1.3.2(e) lists “ensuring the character of established communities are maintained” as one of several key planning objectives of VOP 2010. Mr. Igelman opined that the requested variances fit within the character of this neighbourhood and that similar conditions for accessory structures exist within the neighbourhood.
12While the York Region Official Plan and VOP 2010 do not identify details related to the specific location and built form of accessory structures within a residential lot, an accessory structure like a cabana is consistent with the York Region Official Plan and VOP 2010.
Maintains the General Intent and Purpose of the ZBL
13The Subject Property is zoned “R1A (EN) First Density Residential Zone (Established Neighbourhood)” under the ZBL. Policy 4.1.2.1b of the ZBL requires a minimum setback of 2.4 m from any lot line if the height of a residential accessory structure is greater than 2.8 m. With an existing height of 2.9 m, Variance #2 is proposing a setback of 0.76 m from the interior side lot line. The minimum setback of 2.4 m from any lot line for residential accessory structures greater than 2.8 m in height is a change from the previous zoning that required a setback of 1.5 m from the interior side yard and 7.5 m from the rear side yard. The adoption the current ZBL increased the permitted setbacks for accessory structures with a height greater than 2.8 m in all residential zones from the interior side lot line by 0.9 m.
14The intent of the ZBL, particularly Policy 4.1.2.1b, is to provide adequate access from the front to the rear of a property, ensure the character of the neighbourhood is maintained, allow for open space for outdoor amenity space and landscaped area, allow for additional open space for stormwater infiltration and runoff, ensure appropriate separate distances between buildings or structures to lot lines. The intent is also to restrict the proximity of accessory structures that exceed a certain height to address issues such as massing and privacy. Given the features of the cabana in this matter, privacy does not appear to be a concern. Any issue regarding stormwater infiltration and runoff could be addressed by a Lot Grading Permit from the Development Inspection and Lot Grading Division of the City’s Development Engineering Department. Massing is not an issue for Variance #1 as it takes up less of a building footprint along the rear yard at 3.18 m. The building footprint of the cabana all along the side yard is 10.88 m in length. Given its proximity to the interior lot line, it is clear that there is significant massing imposed upon the neighbouring property. On this basis, Variance #2 does not maintain the general intent of the ZBL.
Are the Variances Minor in Nature?
15While the variances sought may seem minor when considering what would be permitted as-of-right, the Tribunal cannot ignore the impact on adjacent properties. The written submission of Mr. Costabile expressed concern regarding the visual impact of the cabana and how the size of the cabana affects beauty, spaciousness, sunlight and privacy. This submission is consistent with evidence of Mr. Cipolletta who opined that the reduction in setback from 2.4 m to 0.76 m will negatively impact the neighbouring property if the setback is to accommodate a cabana with a length of 10.88 m, in combination with its height.
16Both experts referred to other properties in the neighbourhood with accessory structures. Some were approved by the City and others do not appear to have sought the necessary approvals. While this evidence was helpful, each proposal should be considered on its own merits, both in terms of quantitative factors such as its height and size and how it compares to the requirements to ZBL and what is permitted as-of-right, and qualitative factors such as its overall impact in terms of its visual characteristics, massing and privacy. As stated in Toronto Standard Condominium Corp. #1517 v. Toronto (City) Committee of Adjustment 1:
Firstly, whether it is “minor” or not cannot be regarded as a robotic exercise of the degree of numeric deviation, but must be held in light of the fit of appropriateness, the sense of proportion, a due regard to the build and planned environ, the reasons for which the requirement is instituted, the suggested mitigation conditions to address the possible concerns and last, but not the least, the impact of the deviation.
17The visual impact of the cabana on the interior side lot line and massing impact is significant. The same concerns do not exist regarding the rear lot line. While Variance #1 is minor, Variance #2 is not minor.
Desirable for the Appropriate Development of the Land
18Accessory structures like cabanas appear to be abundant in the residential area around the Subject Property. Some may or may not conform with the ZBL. While a cabana may be desirable for the appropriate development of land and this residential community, large cabanas that contravene the intent and requirements of the ZBL and adversely affect neighbours are not desirable. The photographs shown during the hearing show the cabana to be an imposing structure. Its size in relation to the proposed setback in Variance #2 is undesirable.
19The Tribunal finds that Variance #1 in relation to the cabana is minor and meets the four tests of a minor variance as set out in s. 45(1) of the Act. The Tribunal finds that Variance #2 in relation to the cabana is not minor in nature and does not meet the four tests of a minor variance.
ORDER
20THE TRIBUNAL ORDERS that the appeal is dismissed and Variance #1 to the City of Vaughan By-law No. 001-2021, is authorized as follows:
To permit a residential accessory structure (cabana) with a height greater than 2.8 m be located at a minimum 0.76 m from the rear lot line, whereas a rear yard setback of 2.4 m is required.
The approval is subject to the following condition:
- The 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 Permit prior to any work being undertaken on the property.
- Variance #2 is not authorized.
“Jennifer Gold”
JENNIFER GOLD
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.