Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CORRECTION NOTICE

OLT CASE NO(S).: OLT-21-001010

DECISION ISSUE DATE(S): November 18, 2021

CORRECTION NOTICE ISSUE DATE: December 3, 2021

RE: Genge v. Ottawa (City)

Correction to: Title of Proceedings – to reflect the correct case numbers for the section 53(27) and 53(31) matters

Originally: OLT Case Nos.: OLT-21-001020

Corrected to: OLT Case Nos.: OLT-21-001293, OLT-21-001294

"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: November 18, 2021

CASE NO(S).: OLT-21-001010

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

Appellant: Karen Genge Applicant: Heather Fraser and David D’andrea Subject: Minor Variance Property Address/Description: 304 Lanark Ave. Variance from By-law: 2008-150 Municipality: City of Ottawa Municipal File No.: O08-02-20/A-00341, O08-02-20/A-00342 OLT Lead Case No.: OLT-21-001010 OLT Case Nos.: OLT-21-001010, OLT-21-001011 OLT Case Name: Genge v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(27) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Karen Genge Applicant: Heather Fraser and David D’andrea Subject: Consent – Changes to Conditions of provisional consent – Condition No. 1 Property Address/ Description: 304 Lanark Ave. Municipality: City of Ottawa Municipal File No.: D08-01-20/B-00395, D08-01-20/B-00399 OLT Lead Case No.: OLT-21-001010 OLT Case Nos.: OLT-21-001020

PROCEEDING COMMENCED UNDER subsection 45(17) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Motion By: Heather Fraser and David D’andrea Purpose of Motion: Request for an Order Dismissing the Appeal Appellant: Karen Genge Subject: Minor Variance Property Address/Description: 304 Lanark Ave. Variance from By-law: 2008-150 Municipality: City of Ottawa Municipal File No.: O08-02-20/A-00341, O08-02-20/A-00342 OLT Lead Case No.: OLT-21-001010 OLT Case Nos.: OLT-21-001010, OLT-21-001011

PROCEEDING COMMENCED UNDER subsection 53(31) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Motion By: Heather Fraser and David D’andrea Purpose of Motion: Request for an Order Dismissing the Appeal Appellant: Karen Genge Subject: Consent Property Address/Description: 304 Lanark Ave. Municipality: City of Ottawa Municipal File No.: D08-01-20/B-00395, D08-01-20/B-00399 OLT Lead Case No.: OLT-21-001010 OLT Case Nos.: OLT-21-001020

Heard: In writing

APPEARANCES:

Parties	Counsel/Representative*
Heather Fraser and David D’andrea	Michael S. Polowin* Jacob A. Polowin*
Karen Genge	Self-represented

DECISION DELIVERED BY S. JACOBS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Heather Fraser and David D’andrea (the “Applicants”) wish to sever their property at 304 Lanark Avenue in Ottawa (the “subject property”) into two parcels in order to build a new semi-detached dwelling on each one. They received provisional consent to sever the property from the City of Ottawa’s Committee of Adjustment (the “Committee”), along with authorization for variances from the City’s Zoning By-law for a reduced lot area for each parcel. Karen Genge appealed the minor variance decision to the Tribunal (the “Minor Variance Appeal”). She did not appeal the consent decision.

2One week after the Committee heard the minor variance and consent applications, the City amended its Zoning By-law. The effect of the amendment was that the subject property’s lot areas would comply with the Zoning By-law and the variances would not be required. The Committee then changed a condition in its consent decision, which had required the Applicants to obtain minor variances, to instead require the Applicants to demonstrate that the proposed severed lots met the requirements of the Zoning By-law. Ms. Genge then filed an appeal of the Committee’s change to the consent condition (the “Change of Condition Appeal”).

3The Applicants have brought a motion to dismiss Ms. Genge’s appeals. They submit that Ms. Genge does not have a valid Change of Condition Appeal pursuant to the Planning Act, R.S.O., 1990, c. P. 13, as amended (the “Act”) for two reasons: (1) there is no right of appeal under the Act because the Committee deemed its change to the condition to be minor; and (2) if there is such an appeal under the Act, Ms. Genge filed the appeal after the statutory deadline. With respect to the Minor Variance Appeal, the Applicants submit that the appeal is moot and not worthy of a hearing, given that the Zoning By-law now permits the relief the Applicants originally sought and received from the Committee.

4There are three issues raised by this motion:

1. Is the Change of Condition Appeal valid?
2. If the Change of Condition Appeal is valid, should it be dismissed in accordance with s. 53(31) of the Act?
3. Should the Minor Variance Appeal be dismissed in accordance with s. 45(17) of the Act?

5This motion was heard in writing and the Tribunal had the benefit of the following materials:

• Applicants’ Notice of Motion, including the Affidavit of Murray Chown, a Registered Professional Planner;
• Ms. Genge’s Response to Motion (consisting of two documents, an Appellant Submission and Reply, as well as information relating to a building permit and tree planting); and
• Applicants’ Reply

6Before addressing the issues raised by the motion, the Tribunal will summarize the chronology of events that led to Ms. Genge’s appeals, as they provide necessary context for the motion.

Chronology of the Consent and Minor Variance Applications

7The Applicants intend to sever the subject property into two parcels in order to build a long semi-detached dwelling on each of the new parcels, which is permitted under the Zoning By-law. The property had contained a dwelling, which is now demolished. At the time of the application to the City, the Zoning By-law required a minimum lot area of 450 square metres (“sq m”) for each parcel. The Applicants’ proposed parcels have lot areas of 349.3 sq m and 349.6 sq m, respectively, and so they applied for variances to the Zoning By-law along with consent to sever the property. They submitted their applications on December 4, 2020.

8Meanwhile, City planning staff was preparing to recommend amendments to the Zoning By-law to address some technical anomalies. Staff submitted a report to the City’s Planning Committee and Council on March 29, 2021, recommending a change to the minimum required lot area for long semi-detached dwellings to 300 sq m. Staff explained the rationale for the change this way:

the minimum lot width and area for the R3EE zone was mistakenly set at 15 metres and 450 square metres, respectively. It was intended for long semis to be subject to a 10 m lot width and 300 square metre lot area requirement (i.e. 10 metres by a standard lot depth of 30 metres), as is presently the case for R2 and R3 zones that permit this land use. This change is to ensure these requirements line up with the underlying intent.

Council accepted the staff recommendation and amended the Zoning By-law by passing By-law No. 2021-111 (the “Anomaly By-law”) on April 14, 2021. The appeal period expired on May 5, 2021. Because there were no appeals to the Anomaly By-law, it was deemed to have come into force on the day it was passed, meaning that as of April 14, 2021, the minimum required lot area for a long semi-detached dwelling became 300 sq m.

9The Committee heard the Applicants’ consent and minor variance applications on April 7, 2021, one week before the Anomaly By-law was passed. Therefore, at the time the Committee heard the applications, the Zoning By-law required a minimum lot area of 450 sq m and the Applicants required a variance for their proposed lot areas of 349.3 sq m and 349.6 sq m.

10The Committee had before it a report from City planning staff indicating that it had no concerns with the applications. During the Committee hearing, the City’s Manager of Development Review advised the Committee that the lot area change to the Zoning By-law was scheduled to be considered by the City’s Planning Committee.

11On April 16, 2021, the Committee issued its decisions giving provisional consent to sever the subject property and authorizing the variances for reduced lot area. The consent decision was subject to a number of conditions, with condition 1 being relevant to this motion:

1. That the Owner(s) provide evidence that the accompanying Minor Variance Applications (D08-02-20/A-00341 & D08-02-20/A-00342) have been approved, with all levels of appeal exhausted.

12Ms. Genge filed an appeal only of the Committee’s decision on the variances, on May 4, 2021. The Committee confirmed the consent decision to be final and binding on May 6, 2021.

13On May 17, 2021, Mr. Chown wrote to the Committee on behalf of the Applicants, requesting that the Committee delete condition 1 to the consent decision. His rationale was that the variances were no longer required because the Anomaly By-law came into force and effect on April 14, 2021, two days before the Committee issued its decisions. City Planning staff advised the Committee that it had no concerns with a change to condition 1, on the basis that the new parcels comply with the Zoning By-law (as amended by the Anomaly By-law) and the variances were no longer required.

14The Committee considered the request at its meeting of July 7, 2021 and issued its decision amending the condition on July 16, 2021. The original condition and revised condition are shown here for ease of reference:

Original Condition, April 16, 2021

1. That the Owner(s) provide evidence that the accompanying Minor Variance Applications (D08-02-20/A-00341 & D08-02-20/A-00342) have been approved, with all levels of appeal exhausted.

Revised Condition, July 16, 2021

1. That the Owner(s) provide evidence that the proposed severed lots meet all the requirements of the Zoning By-law that is currently in force and effect.

15In its decision to change the condition, the Committee explained that it considered the change to be minor in accordance with s. 53(26) of the Act:

Section 53(23) of the Planning Act allows for changes to the conditions of provisional consent and, in this case, the Committee has agreed that the change requested is reasonable and appropriate. In accordance with section 53(26), the Committee has deemed the requested change to be "minor."

16The Committee received an appeal from Ms. Genge for the changed condition on August 11, 2021. This was 26 days after the Committee made its decision to change the condition.

ANALYSIS

17It is necessary for the Tribunal to first consider whether the Change of Condition Appeal is valid under the Act. The Tribunal will then address the Applicants’ requests to dismiss both the Change of Condition and Minor Variance Appeals.

1. Is the Change of Condition Appeal valid?

18The Applicants submit that the Change of Condition Appeal is not valid because the Act does contain a right to appeal when the change in condition is minor. In the alternative, the Applicants submit that if the Act does create such an appeal, Ms. Genge’s appeal is invalid because it was filed late.

19Ms. Genge responds that she was assured during the Committee meeting that she would be able to appeal the Committee’s decision if she found it unfavourable. She submits that though the Committee coordinator later advised that no appeal could be filed, she confirmed with the Tribunal that she could file one. She submits that she filed her appeal as soon as possible given the conflicting information she had received.

20Appeals to this Tribunal are created by statute, in this case, the Act. The relevant provisions for the Change of Condition Appeal come from ss. 53(23) to (27) of the Act. Subsection 53(23) allows conditions of a provisional consent to be changed any time before the final consent is given:

Change of conditions

(23) The council or the Minister, as the case may be, may change the conditions of a provisional consent at any time before a consent is given.

The Committee, as a delegate of City council, changed condition 1 in accordance with s. 53(23).

21Where the Committee has already given notice of a decision to give provisional consent, it is generally required to provide written notice of any changes to the conditions. This requirement is set out in s. 53(24):

Notice

(24) If the council or the Minister changes conditions of a provisional consent under subsection (23) after notice has been given under subsection (17), the council or the Minister shall, within 15 days of the decision, give written notice of the changes in the prescribed manner and containing the information prescribed to,

(a) the applicant;

(b) each person or public body that made a written request to be notified of changes to the conditions;

(c) the Minister, with respect to a change of conditions by council, if the Minister has notified the council that he or she wishes to receive a copy of the changes of conditions; and

(d) any other person or public body prescribed.

The Act provides an exception, in s. 53(26), when the Committee considers the change to conditions to be minor. There is no notice required in such a case:

No notice required

(26) The council or the Minister, as the case may be, is not required to give written notice under subsection (24) if, in the council’s or the Minister’s opinion, the change to conditions is minor.

In this case, the Committee relied on s. 53(26) and deemed its change to condition 1 to be minor. It was therefore not required to provide notice of its decision changing the condition.

22The Act allows for an appeal of changed conditions no later than 20 days after the giving of notice for the change of condition decision is completed:

Appeal

(27) Any person or public body may, not later than 20 days after the giving of notice under subsection (24) is completed, appeal any of the changed conditions imposed by the council or the Minister by filing with the clerk of the municipality or the Minister a notice of appeal setting out the reasons for the appeal, accompanied by the fee charged by the Tribunal.

An appeal of a change in conditions, then, is available only when notice has been given under s. 53(24). In this case, there was no such notice because the Committee deemed its change to condition 1 to be minor. It was therefore exempt from providing notice pursuant to s. 53(26).

23Based on its reading of the Act and the submissions of the parties, the Tribunal finds that there is no valid Change of Condition Appeal here. The Act is clear in providing the Committee the discretion to determine whether a change in conditions is minor. The Committee decided that its change to condition 1 was minor, and, following s. 53(26) of the Act, it did not provide notice of its decision. In other words, there was no notice of decision from the Committee that could trigger an appeal of the changed condition.

24Even if an appeal were available to Ms. Genge, her appeal was filed after the 20-day appeal period required by s. 53(27) of the Act, which would render it invalid. While it is unfortunate that Ms. Genge received conflicting information as to whether she could appeal the change of condition decision, that does not create a right of appeal. Such a right can only be created by the Act.

25Having found that there is not a valid Change of Condition Appeal, it is not necessary for the Tribunal to consider whether it should dismiss the appeal in accordance with s. 53(31) of the Act. The Applicants submit that the Tribunal now has jurisdiction over the appeal because the Committee forwarded a record of appeal, as required by s. 53(28) of the Act. Neither the Tribunal nor the Committee have authority to create an appeal where it does not exist in the Act. However, the Tribunal does observe that were the Change of Condition Appeal found to be valid, it does not contain any land use planning grounds that could succeed at a hearing and should be dismissed.

2. Should the Minor Variance Appeal be dismissed in accordance with s. 45(17) of the Act?

26Because the Applicants no longer require the variances for lot area, they argue that the Minor Variance Appeal is moot and has no land use planning grounds upon which it could succeed at a hearing. They accordingly request the Tribunal to dismiss the Minor Variance Appeal.

27Ms. Genge’s response is limited. She argues that the minor variance application was made at a time when the Zoning By-law required the larger lot area, and that there is no provision in the Zoning By-law, as amended by the Anomaly By-law, to allow the Applicants to take advantage of the new, reduced lot area standards.

28Subsection 45(17) of the Act allows the Tribunal to dismiss an appeal without a hearing where it is of the opinion that the appeal does not disclose any land use planning grounds that could succeed at a hearing:

Dismissal without hearing

(17) Despite the Statutory Powers Procedure Act and subsection (16), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if,

(a) it is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

29Having reviewed the motion materials and chronology, the Tribunal concludes that this appeal is a product of unfortunate timing. The Committee issued its minor variance decision two days after the Anomaly By-law rendered the variances unnecessary. The Applicants no longer require these variances, as confirmed by City planning staff, and Mr. Chown in his Affidavit, because their proposed lots now comply with the Zoning By-law as amended by the Anomaly By-law. The Tribunal agrees with the Applicants that the Minor Variance Appeal is moot. There are no variances for the Tribunal to authorize in this case.

30The Tribunal has also reviewed Ms. Genge’s notice of appeal and agrees with the Applicants that it does not disclose any land use planning grounds that could succeed at a hearing. She raises many concerns about the built form of the proposed semi-detached dwellings, including height and privacy. She also refers to setback areas that are fully compliant with the Zoning By-law. The Tribunal finds that her concerns are not related to the variances for lot area and sees no land use planning ground upon which Ms. Genge’s appeal could succeed at a hearing.

31Accordingly, the Tribunal will dismiss the Minor Variance Appeal.

CONCLUSION

32Having found that Ms. Genge does not have a valid Change of Condition Appeal, the Tribunal considers the matter closed. The Tribunal had not yet opened a file for the Change of Condition Appeal because this motion was pending. The Tribunal will close its file on the Minor Variance Appeal, which it has dismissed as moot and having no apparent land use planning ground that could succeed at a hearing.

33Both parties made submissions as to the other party’s delay and the costs that should follow. Given the unusual circumstances of timing and misinformation involved in this case, the Tribunal sees no basis for making an award of costs.

ORDER

34THE TRIBUNAL ORDERS that the motion is granted and the appeal by Karen Genge under s. 45(12) of the Planning Act is dismissed.

"S. Jacobs"

S. JACOBS VICE-CHAIR

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.