Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 21, 2025
CASE NO(S).: OLT-25-000018
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Maria Scholyar
Subject: Minor Variance
Description: To permit an existing cabana and two decks on the Subject Property
Reference Number: CA-24-44
Property Address: 6165 Vivian Road
Municipality/UT: Town of Whitchurch-Stouffville
OLT Case No.: OLT-25-000018
OLT Case Name: Scholyar v. Whitchurch-Stouffville (Town)
Heard: March 18, 2025 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Maria Shcolyar ("Appellant") | Isaac Tang (in absentia) Lee English |
| Town of Whitchurch-Stouffville ("Town") | Did not appear |
DECISION DELIVERED BY L.P. YOU ON mARCH 18, 2025 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The appeal arises under s. 45(12) of the Planning Act, R. S. O. 1990, c. P. 13, as amended (“Act”), by the Appellant, with respect to the Town’s Committee of Adjustment’s (“CoA”) refusal of the application for minor variances (“Application”) to legalize an existing cabana and two decks on the lands municipally known as 6165 Vivian Road (“Subject Lands”).
2The Town advised the Tribunal in writing that the Town took no position on the matter before the Tribunal and would not appear at the Hearing. The Town provided recommendations with a list of conditions of approval of the Application for the Tribunal’s consideration, should the Tribunal approve the Application. The detailed conditions are listed as follows:
A tree planting compensation area of 0.09 hectares be established on the property as per the recommended location in the submitted Natural Heritage Evaluation by Azimuth Environmental Consulting Inc. dated September 16,2024, as a means of offsetting works in close proximity to the Significant Woodland Edge.
That the Owner provide Development Planning staff with a signed Declaration of use for the Use of the property.
CONTEXT
3The Subject Lands are located outside of the Town’s Secondary Plan Areas and fall within the Province of Ontario’s Oak Ridges Moraine Conservation Plan Area.
4The Subject Lands have an area of approximately 9.86 hectares with a frontage of approximate 294 metres (“m”) on the north side of Vivian Road. The Subject Lands are currently occupied by a single-detached dwelling with a pool and spa addition to the rear, as well as a cabana and two detached decks.
5The Subject Lands are designated a mix of “ORM Natural Core Area” and “ORM Countryside Area” in the Town’s Official Plan (“OP”).
6The Subject Lands are zoned in a mix of Environmental (ENV), Oak Riges Moraine-Natural Core subject to Exception 2 (ORM-NC(2)), and Oak Ridges Moriane-Countryside subject to Exception 6 (ORM-C(6)) in the Town’s Zoning By-law No. 2010-001-ZO (ZBL).
7The Appellant sought the relief from the ZBL to legalize the existing cabana and two detached decks on the Subject Lands. One deck was constructed in the front yard, and the other was constructed in the western interior side yard and is connected to the cabana. The variances in the Application are detailed as follows:
| Structure | Required | Proposed |
|---|---|---|
| Cabana and Associated Deck Minimum Interior Side Yard |
9 m | 2.2 m (west, for existing accessory building and deck) |
| Cabana Maximum Accessory Building Height |
5 m | 5.49 m (for existing only) |
| Cabana and Associated Deck Construction of an Accessory Building and Deck within the ENV zone |
Not permitted | Permitted (for existing only) |
| Accessory Structure (front platform) An accessory building or structure shall not be located closer to a street than the main building on a lot |
Not permitted | Existing Accessory building or structure to be located closer to a street than the main building on a lot |
| Accessory Structure (front platform) Minimum Front Yard |
15 m | 9.15 m (for existing accessory structures only) |
STATUS REQUEST AND CONCERNS OF PARTICIPANTS
8The Tribunal addressed one Party status request from Mr. David Todd Smith and six requests from the following individuals for Participant status.
- Margaret Smith;
- William Warren;
- Natalia Horscroft;
- Kerry Eberwein;
- James Barrowclough; and
- Suzanne Foidart.
9The Participants listed above expressed their concerns about the Application as follows:
- Excessive noise and traffic;
- Commercial activities in a residential and environmentally friendly area;
- Privacy and safety;
- Overuse of water and septic system overload; and
- Neighbourhood character.
NOTICE OF HEARING
10There is no issue with Notice of this Hearing.
EXHIBITS
11The following Exhibits were marked during the Hearing:
- Exhibit 1 – Notice of Hearing;
- Exhibit 2 – Document Book-Applicant/Appellant dated March 7, 2025;
- Exhibit 3 – Visual Evidence; and
- Exhibit 4 – Suzanne Foidart’s Statement.
ANALYSIS AND FINDINGS
12The Tribunal qualified Ms. Joanna Fast, a Registered Professional Planner, full member of the Ontario Professional Planners Institute, and candidate member of the Professional Standards Board, to assist the Tribunal with opinion evidence in the area of land use planning in the matter before the Tribunal.
13The Tribunal qualified Mr. Daniel Stuart, with sound knowledge and extensive experience in ecology field, to provide opinion evidence as an Ecologist in the matter before the Tribunal.
14Ms. Fast stated that the Town’s staff report (“staff report”) recommended the approval of the Application subject to the conditions imposed in the staff report, and the CoA refused the Application despite the recommendation from Town staff.
15Ms. Fast stated that the disturbance of the cabana was located in a grassed area, and the cabana, as well as other structures, were well screened as shown on the photos in Exhibit 3. In Ms. Fast’s opinion, the setbacks of this proposed development were appropriate with no adverse impacts to shadow and privacy of neighbouring properties, nor Oak Ridges Moraine. Ms. Fast further held the opinion that the proposed development was compatible.
16Ms. Fast expressed her opinion that the Appellant used the Subject Lands as residential, which was permitted in OP and ZBL, and that the structures meet the intent of the OP and ZBL as they were considered accessories to the primary residential use, as defined in the OP and ZBL. Ms. Fast further opined that the Application represented appropriate use of the Subject Lands.
17Ms. Fast held the opinion that the Application was minor in nature as it did not produce a built form that broke from the existing neighbourhood character in the rural area.
18Ms. Fast demonstrated to the Tribunal that the development provided enjoyment to the Appellant. Ms. Fast, therefore, expressed her opinion that this Application was desirable.
19Ms. Fast responded to the concerns of the Participants and her response focused on the current use of the Subject Lands. Ms. Fast’s response was provided as follows:
- The past use of the Subject Lands, short-term rentals, are irrelevant to the matter before the Tribunal.
- The Natural Heritage Evaluation Study (“Study”) submitted to the Town confirmed that the proposed development would not adversely impact drinking water and the integrity of Oak Ridges Moraine.
- Tree compensation area, as required in the staff report, would benefit the Oak Ridges Moraine natural system and environment.
- The septic system was enlarged for the previous use as a medical facility. A future building permit application will consider septic system capacity, and the capacity of septic system is not a matter discussed as a minor variance application.
- The accessory building complies with the ZBL.
- There are no changes proposed to the method of obtaining drinking water for residents, and this matter will be further discussed through the building permit process.
- The cabana and structures could not be seen from Vivian Road and are located far away from neighbours. The front deck is fenced and screened. There are no visible impacts from the structures and the cabana.
- The proposed development will be residential uses in rural area, which is permitted in the ZBL.
- There are no windows on the west side of the structures, which will not impact privacy of the neighbouring property.
20Mr. Stuart indicated that the Study, referred to by Ms. Fast, was prepared to assess the impacts of the Application on natural heritage features, function, and species. Mr. Stuart held the opinion that the Application had no negative impacts to the environment in the surrounding area and the conditions of approval of the Application in the staff report were appropriate.
21Mr. Smith raised his concerns about the past use and the size of the building, which could have impacts to the ecosystem and were overlooked in the Application. Mr. Smith stated that there used to be short-term rentals of the building, which led to the concerns from the residents about noise, traffic, and safety.
22Counsel for the Appellant objected to Mr. Smith’s intent to add his concerns about the past use of the building, and the building itself, as these concerns were irrelevant and not the matter before the Tribunal. Counsel for the Appellant requested the Tribunal to review the matter before the Tribunal.
23The Tribunal directed the Parties that the matter before the Tribunal was the Application and the testify needed to be focused on the Application.
24Mr. Smith challenged the needs of the number of two hot tubs through cross-examination. Ms. Fast indicated in her response that the Appellant could determine the number of hot tubs to meet their needs and that there were no limits on the number of hot tubs in the ZBL.
25The Tribunal finds that the proposed development is desirable for the enjoyment of the Subject Lands and the expert witnesses’ responses to the concerns of the residents was appropriate. Further, the Tribunal recognizes the effort and intent of the Appellant to protect the natural areas based on the Study.
26The Tribunal has carefully assessed the evidence of the Appellant’s expert witnesses and finds that the Application meets the four tests set out in s. 45(1) of the Act.
- Does this Application maintain the general intent and purpose of the OP?
- Does this Application maintain the general intent and purpose of the ZBL?
- Is this Application desirable for the use of the Subject Lands?
- Is this Application minor in nature?
ORDER
27THE TRIBUNAL ORDERS THAT the appeal is allowed, and the variances to the Town of Whitchurch-Stouffville’s Zoning By-law No. 2010-001-ZO, listed in Appendix A, are authorized subject to the conditions set out in Attachment 1 to this Order.
“L.P. You”
L.P. YOU
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 A
List of Variances
| Structure | Required | Proposed |
|---|---|---|
| Cabana and Associated Deck Minimum Interior Side Yard |
9 m | 2.2 m (west, for existing accessory building and deck) |
| Cabana Maximum Accessory Building Height |
5 m | 5.49 m (for existing only) |
| Cabana and Associated Deck Construction of an Accessory Building and Deck within the ENV zone |
Not permitted | Permitted (for existing only) |
| Accessory Structure (front platform) An accessory building or structure shall not be located closer to a street than the main building on a lot |
Not permitted | Existing Accessory building or structure to be located closer to a street than the main building on a lot |
| Accessory Structure (front platform) Minimum Front Yard |
15 m | 9.15 m (for existing accessory structures only) |
ATTACHMENT 1
Conditions of Approval of Minor Variances
A tree planting compensation area of 0.09 hectares be established on the property as per the recommended location in the submitted Natural Heritage Evaluation by Azimuth Environmental Consulting Inc. dated September 16,2024, as a means of offsetting works in close proximity to the Significant Woodland Edge.
That the Owner provide Development Planning staff with a signed Declaration of use for the Use of the property.