Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 10, 2021

CASE NO(S).: PL210062

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Harrison Da Costa

Subject: Consent

Property Address/Description: 96 & (98) Byron Avenue

Municipality: City of Ottawa

Municipal File No.: D08-01-20/B-00270

LPAT Case No.: PL210062

LPAT File No.: PL210062

LPAT Case Name: Da Costa v. Ottawa (city)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Harrison da Costa

Subject: Consent

Property Address/Description: 96 & (98) Byron Avenue

Municipality: City of Ottawa

Municipal File No.: D08-01-20/B-00271

LPAT Case No.: PL210062

LPAT File No.: PL210063

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

Applicant and Appellant: Harrison da Costa

Subject: Minor Variance

Variance from By-law No.: 2008-250

Property Address/Description: 96 & (98) Byron Avenue

Municipality: City of Ottawa

Municipal File No.: D08-02-20/A-00269

LPAT Case No.: PL210062

LPAT File No.: PL210064

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

Applicant and Appellant: Harrison da Costa

Subject: Minor Variance

Variance from By-law No.: 2008-250

Property Address/Description: 96 & (98) Byron Avenue

Municipality: City of Ottawa

Municipal File No.: D08-02-20/A-00270

LPAT Case No.: PL210062

LPAT File No.: PL210065

Heard: May 26, 2021 by video hearing

APPEARANCES:

Parties	Counsel
City of Ottawa	No one appeared
Harrison Da Costa, Connor Da Costa, Brittany Baltzer and Riley Sexton	Carolina Campos and David Sunday

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON MAY 26, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Local Planning Appeal Tribunal (“Tribunal” or “LPAT”) convened a Video Hearing (“VH”) on May 26, 2021 to consider the appeal of City of Ottawa (“City”) Committee of Adjustment decision dated December 18, 2020 (“Decision”) refusing the application by the Appellants Harrison Da Costa, Connor Da Costa, Brittany Baltzer and Riley Sexton (“Appellants”) for a consent (severance) and several variances under the City Zoning By-law No. 2008-250 (“ZB”) to permit the creation of a new additional single family dwelling at the Appellants’ property municipally known as 96 Byron Avenue in the City (“Subject Property”). The City did not appear at the VH or oppose this appeal and no other persons or entities sought Party or Participant status at the VH.

2The Appellants, co-owners of the Subject Property, seek to subdivide it into two separate parcels of land. The existing two-storey dwelling would remain on Part 1 and 2 of the easterly parcel thereby created (“Lot A”) while a new three-storey single family home would be constructed on Parts 3 and 4 of the resultant westerly parcel (“Lot B”) which would then become 98 Byron Avenue (collectively, the “Development”). The Appellants also seek to create easements over Part 2 in favour of Parts 3 and 4 and over Part 3 in favour of Parts 1 and 2 – to create a common driveway and proposed rear yard parking arrangement for the two single family dwellings. The permissions sought by the Appellants as described in this paragraph [2] shall be collectively referred to as “Consent Applications” or “Consents”.

3In addition to the Consent Applications, the Appellants sought the following variances:

(a) Under the ZB from the minimum lot width of 15m to permit a width/frontage of Lot A at 8.75 metres and a frontage of Lot B at 6.51 metres;

(b) Under the ZB from the minimum lot area of 540 square metres to permit Lot A at 322.4 square metres and Lot B at 240.1 square metres;

(c) Under the ZB from the requirement for a 1.2 metres side yard setback to permit each of Lot A and Lot B to have 0.75 metres side yard setbacks

(collectively, the “Variances”)

4Interestingly, the Subject Property is designated by the City as ‘R3-I’ which permits the construction of a large three (3) storey semi-detached, multi-unit building. Thus, the Appellants already possess ‘as-of-right’ permission to construct a much larger single building that would dwarf the combined mass of the Development (“As-of-Right Semi”). They had no need for the Consents or the Variances if they had opted instead to create the As-of-Right Semi.

5The materials provided to the Tribunal by the Appellants comprised:

(a) The Appellants’ Book of Documents (“Book”) consisting of 34 tabs;

(b) The Appellants’ Supplemental Book, consisting of 1 tab;

(c) The Supplemental Supplemental Book consisting of 3 tabs;

(d) ‘Brian Casagrande Witness Statement for PL2100062’;

(e) ‘96 Byron – Evidence by James Colizza Architects;

(f) ‘Witness Statement of Jeff Nadeau – Bullet Points 2021-05-26’; and

(g) ‘2021-05-27 Draft Order’

6Items (d), (e), (f) and (g) noted in paragraph [5] above, were filed at the Tribunal’s request by the Appellants subsequent to the VH.

Evidence and Analysis

7As noted, the City did not oppose the Consent Applications or the Variances. However, the attendance of David Nadeau who is a Planner 1 employed in the City’s Planning Department was compelled by summons as requested by counsel for the Appellants. He was qualified before the Tribunal to provide opinion evidence on land use planning matters. Mr. Nadeau was the main author of the planning report which was provided to the City’s Committee of Adjustment (“City Report”) concerning the Consent Applications and the Variances.

8Two other expert witnesses were called by the Appellants’ counsel. James Colizza, is an architect in Ottawa with Colizza Bruni Architecture who was qualified to provide opinion evidence to the Tribunal on architectural and urban design matters. He has over 30 years’ experience as an architect and often specializes in infill development matters in the City. Mr. Colizza prepared the conceptual design and draft site plan outlining the Development. Brian Casagrande is a Registered Professional Planner with Fotenn Consultants, an Urban Planning Consultancy which provides community and urban design services to clients in Ottawa and across Canada. Mr. Casagrande has over 20 years of professional planning experience, including consulting for public and private-sector clients, and was qualified by the Tribunal to provide opinion evidence on land use planning matters.

9Following the Decision in December 2020, Mr. Colizza was retained by the Appellants to advise on the possible design options for redevelopment of the Subject Property. He testified that the Appellants could have easily asked him to design a large As-of-Right Semi and then move almost immediately to the building permit stage. However, it was his view (and the Appellants’ preference) to continue instead with the Consent Applications and Variances. Mr. Colizza testified that in his opinion the Development fits far better with the existing lot fabric in and around the Byron Avenue neighbourhood than would a large mass As-of-Right Semi. He opined that the Development was much more compatible with the neighbourhood because of its positive relationship to the streetscape and its overall reduced massing compared to an As-of-Right Semi.

10Mr. Colizza referred the Tribunal to several photographs of the surrounding community and to his design drawings to demonstrate how the Development would represent a positive, diverse contribution to the neighbourhood. He pointed out that the Development’s proposed shared driveway and rear parking arrangement was preferable to yet another large, three (3) plus storey building with large garages and cars facing the street. For essentially the same reasons, it was also his opinion that:

(a) The proposed urban and architectural design of the Development at 96 has regard for and responds to the guidelines outlined in Section 1.1 Proposed Objectives of the City of Ottawa’s URBAN DESIGN GUIDELINES FOR LOW-RISE INFILL HOUSING; and

(b) The Development achieves a good fit with the established context and physical fabric of the Byron Avenue streetscape, both visually and spatially.

11The Tribunal accepted Mr. Colliza’s unchallenged evidence as set out in paragraphs [9] and [10] above, particularly his conclusion that two smaller single family dwellings on the Subject Property was a better overall fit with the surrounding diverse community than would be the single much larger, monolithic As-of-Right Semi option already permitted by the City’s R3-I designation.

12From a land use planning perspective, Mr. Casagrande echoed Mr. Colizza’s views. Mr. Casagrande is also highly experienced with infill projects and pointed out that the City’s current zoning and its Official Plan (“OP”) expressly support and encourage urban intensification in the areas adjacent to the Subject Property. He also tendered considerable photographic and opinion evidence to confirm the intensification of the surrounding neighbourhood. The Tribunal accepted Mr. Casagrande’s uncontradicted evidence in this respect.

13Mr. Casagrande testified that the Subject Property fronts onto the south side of Byron Avenue, which is a ‘Collector Road’ according to Schedule E of the OP. Byron Avenue starts at Holland Avenue (a ‘Major Collector Road’ under the OP) about 350 metres (“m”) to the east and continues due west crossing a number of major Collector and arterial roads before terminating at Woodroffe Avenue, another designated major Collector. Byron Avenue was also formerly the location of an east west commuter rail corridor that was converted into a Collector road that is flanked on the north side by a linear pathway system.

14The Subject Property is within 725 m of the Tunney’s Pasture transit station which is part of a broad and growing rapid transit system in the City. Mr. Casagrande further noted that it is within an area that the R3-I zoning designation permits singles, semis, townhouses, and triplex dwellings. Consistent with the surrounding area, the Subject Property is serviced with municipal water, sanitary, and stormwater management services that are located within Byron Avenue.

15Mr. Casagrande testified that Mr. Colizza’s design for the Development provided for a side facing entrance and a large street-oriented window at the entrance which is accessed with a small front porch and steps that connect directly to the street front. The third floor of the new house also offers a small street-oriented terrace from one of the bedrooms. It is the view of both Mr. Colizza and Mr. Casagrande that these features, along with the ‘no front garage look’, helps to appropriately animate the streetscape in a positive way.

16Mr. Casagrande provided the following expert opinion regarding the Consent Applications:

(a) The Ontario Planning Act establishes controls over land division, which in the City of Ottawa have been delegated to the municipality under Section 51(3.1) of the Planning Act, R.S.O. 1990, c. P13 (“PA”);

(b) Section 53(12) of the PA states that an approval authority, “in determining whether a provisional consent is to be given, shall have regard to the matters under subsection 51(24) and has the same powers as the approval authority has under subsection 51(25) with respect to the approval of a plan of subdivision;

(c) The Consent Applications meet the criteria established in Section 51(24) of the PA which are: (i) The effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2; and (ii) The proposed lot creation has regard to matters of provincial interest, including no impact to ecological systems or natural areas;

(d) Through intensification the Consent Applications are allowing for the efficient use of communication, transportation, sewage and water services and waste management systems;

(e) The safety and health of the community is maintained;

(f) Intensification is by its nature allowing for municipal growth which can be said to protect the financial and economic well-being of the Province and the City of Ottawa;

(g) Provincial policies generally identify infill development as appropriate for growth and development;

(h) Infill development by its nature promotes sustainable principles and locations like this that are close to public transit, support public transit and are oriented to pedestrians;

(i) The proposed Development is not premature, as it is designed to integrate into the existing lot fabric, which has available municipal roads, lights, and services;

(j) The Consent Applications are in the public interest, as they are consistent with Provincial and municipal policies, particularly policies encouraging intensification and an efficient use of land and public services;

(k) The proposed lot creation conforms to the City’s OP;

(l) The land is suitable for detached dwellings. The Subject Property is surrounded by similar development and the proposed lot creation allows for further development and retention of compatible dwellings;

(m) There are no identified concerns related to grading, drainage, soil capacity, or any other technical factors that would hinder the Development on the Subject Property. Further, any such considerations are vetted by the City under the conditions of approval which the Appellants have accepted, as contained in Attachment 2 hereto (“Conditions”);

(n) The proposed parcels will enjoy frontage and direct access to a public street;

(o) The proposed Lot A and Lot B will be rectangular in shape with widths and areas that are within the broad ranges that exist in the adjacent community and consistent with the orientation of those on Byron Avenue;

(p) There are no unique or proposed restrictions on the subject lands and no significant natural resources are located on the Subject Property. Drainage considerations will be assessed by City Staff through the clearing of the Conditions;

(q) Existing schools are available in community, with the closest being Elmdale Elementary and Fisher Park High School located less than 500 m east and west of the subject lands;

(r) According to the City’s Site Plan Control By-law, detached dwellings are exempt from Site Plan Control; and

(s) The Consent Applications are consistent with the PPS and meet the applicable criteria for approval under the PA and have due regard for matters of provincial interest as set out in section 2 of the PA.

17Mr. Casagrande’s opinion was that the Variances maintain the general intent and purpose of the OP and of the Zoning By-law; are minor in nature; and are desirable for the appropriate development or use of the land, in that:

(a) The subject property is designated General Urban Area on Schedule B (Urban Policy) of the OP;

(b) Section 2.2.2 of the OP defines “residential intensification” as “intensification of a property, building, or area that results in a net increase in residential units or accommodation,” and includes redevelopment;

(c) Section 2.2.2 also states that the interior portions of stable, low-rise residential neighbourhoods will continue to be characterized by low-rise buildings. The City supports intensification in the General Urban Area where it will enhance and complement its desirable characteristics and long-term renewal;

(d) OP policies are supporting opportunities for complimentary intensification in such areas and the Variances applications are an example of this;

(e) Policy 5 of Section 3.6 of the OP states that the City supports intensification in the General Urban Area where it will complement the existing pattern and scale of development and planned function of the area;

(f) The Appellants’ proposal to retain the existing historic single-family dwelling and to add a new compact style single is a unique approach that will add to the range of housing increasing variety for a broader demographic;

(g) Section 2.5.1 of the OP contains policies for urban design and compatibility. The Development, although not exactly the same as the existing buildings in the vicinity, nonetheless enhances an established community and coexists with existing development without causing undue adverse impact on surrounding properties. It “fits well” within its physical context and “works well” among those functions that surround it;

(h) The general intent and purpose of the performance standards in the ZB are effectively to ensure proper functionality of development while mitigating impact on adjacent properties. The modified standards proposed by the Variances are consistent with what exists in the area and with what is permitted in many other R3 subzones;

(i) The determination of ‘minor in nature’ is often a function of whether there is undue adverse impact being created by the subject variances;

(j) An As-of-Right Semi would establish generally the same sized lots but would result in the removal of the existing single and the erection of a new semi-detached dwelling that would be much larger in scale and more adversely impactful as a result;

(k) As the Variances are allowing for similar lots to what already exist in the area and the corresponding scale of the Development is also similar in setbacks to the existing character but reduced in overall building mass compared to the As of Right Semi option, there are no undue adverse impacts caused by the Development and the Variances are minor in nature;

(l) The Development represents an opportunity to meet Provincial policy, OP policies and the goals of intensification to take advantage of existing municipal services and infrastructure; and

(m) The Variances are desirable for appropriate development and use of the land because they will accommodate a modest amount of intensification in a manner that will be compatible to the existing context in an area where such intensification is supported and encouraged.

18Mr. Nadeau testified that he prepared the City Report which advised the City Committee of Adjustment that the Planning Department had ‘no concerns’ with the Development or with the Appellants’ Consent Applications or Variances sought. He also opined that the City Report states that City planning staff have no concerns with the applications. Mr. Nadeau further pointed out that:

(a) The side yard variance for the existing dwelling is an existing condition and opines that the reduced variance for the side yard of the proposed single is unlikely to have undue adverse impacts given that such minimum setbacks are contemplated in several R3 zones;

(b) The entrance variance is acceptable because the nature of the design is such that it responds well to the intent of the regulation;

(c) Public agencies also provided comments on the applications, including no concerns from the Rideau Valley Conservation Authority, Rogers, and standard notifications from Hydro Ottawa and the City Building and Forestry Services departments; and

(d) The City Report recommended 5 Conditions of approval that were viewed as standard and acceptable to the Appellants.

19Mr. Nadeau further opined that the City had no concerns with the applications, for the following reasons:

(a) The Proposed Development is responsive to several key policies that the City looks out for, including for example, the maintenance of green space on the street frontage;

(b) The 0.75m easterly side yard setback is already an existing condition;

(c) The 0.6m westerly side yard setback is unlikely to have undue adverse impact, as such setbacks are contemplated in several R3 subzones; and

(d) Despite the orientation of the entrance, the front corner of the Proposed Development with a front-facing stoop meets the intent of the zoning provisions – which are to promote streetscape animation through active entrances at the front of dwellings.

20Mr. Nadeau also stated that his professional opinion is that: (a) The applications are minor in nature; (b) The applications are desirable for the development or use of the land; (c) The applications are in keeping with the intent of the Zoning By-law; and (d) The applications are in keeping with the intent of the City’s OP. Finally, Mr. Nadeau testified that he was of the view that the Conditions recommended in the City’s Report ought to be imposed by the Tribunal in the event that it allowed this appeal.

Conclusions and Orders

21As noted above, the Tribunal accepted the unchallenged evidence provided by Mr. Colliza on matters of architecture and urban design in relation to the Development and the land use planning evidence of Mr. Nadeau and Mr. Casagrande.

22The Tribunal was therefore satisfied that the Consent Applications had due regard for the matters of provincial interest set out in s. 2 of the PA and met the criteria contained in subsection 51 (24) of the PA. Thus, taking into account subsection 53 (12) of the PA, the Tribunal allows the appeal in respect of the Consent Applications.

23The Tribunal was also persuaded that the Variances have satisfied the four-part test in s. 45 (1) of the PA and the other statutory requirements set out above based on the evidence of Mr. Casagrande set out in paragraphs [16] and [17] above and accepted by the Tribunal, along with the evidence of Mr. Nadeau contained in paragraphs [18] and [19] above. Therefore, the Tribunal also allows the appeal concerning the requested Variances.

24The Tribunal therefore Orders as follows:

1. Provisional consent is given to those lands identified as Parts 1 and 2 on the draft reference plan appended hereto as Attachment 1, together with a right of way over Part 3, subject to the Conditions in Attachment 2;

2. Provisional consent is given to those lands identified as Parts 3 and 4 on the draft reference plan appended hereto as Attachment 1, together with a right of way over Part 2, subject to the Conditions in Attachment 2;

3. The following zoning variances for 96 Byron Avenue (Parts 1 and 2 on the draft reference plan appended hereto as Attachment 1) are hereby authorized: a. To permit a reduced lot width of 8.75 m b. To permit a reduced lot area of 322.4 sq. m; c. To permit a reduced easterly side yard setback of 0.75 m.

4. The following zoning variances for 98 Byron Avenue (Parts 3 and 4 on the draft reference plan appended hereto as Attachment 1) are hereby authorized: a. To permit a reduced lot width of 6.51 m b. To permit a reduced lot area of 240.1 sq. m; c. To permit a reduced easterly side yard setback of 0.6 m; and d. To permit a principal entranceway to face a side yard.

“William R. Middleton”

william r. middleton

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.

Attachment 1 Draft Reference Plan

Attachment 2 Conditions of Approval

1. That the Owner(s) provide evidence that payment has been made to the City of Ottawa for cash-in-lieu of the conveyance of land for park or other public recreational purposes, plus applicable appraisal costs. The value of land otherwise required to be conveyed shall be determined by the City of Ottawa in accordance with the provisions of By-Law No. 2009-95, as amended.
2. That the Owner(s) provide evidence (servicing plan), to the satisfaction of the General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that both the severed and retained parcels have their own independent water, sanitary and sewer connection, as appropriate, and that these services do not cross the proposed severance line and are connected directly to City infrastructure. If they do cross the proposed severance line, or they are not independent, the Owner(s) will be required to relocate or construct new services from the city sewers and/or watermain at his/her own costs.
3. That the Owner(s) shall provide evidence that a grading and drainage plan prepared by a qualified Civil Engineer licensed in the Province of Ontario, an Ontario Land Surveyor or a Certified Engineering Technologist, has been submitted to the satisfaction of the General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate to be confirmed in writing from the Department to the Committee. The grading and drainage plan shall delineate existing and proposed grades for both the severed and retained properties, to the satisfaction of the General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate.
4. That the Owner(s) provide evidence to the satisfaction of the General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that the accessory structure has been demolished in accordance with the demolition permit, or relocated inconformity with the Zoning By-law.
5. The Owner(s) shall:
   1. prepare a noise attenuation study in compliance with the City of Ottawa Environmental Noise Control Guidelines to the satisfaction of the General Manager, Planning, Infrastructure and Economic Development Department, or his/her designate. The Owner(s) shall also enter into an agreement with the City that requires the Owner to implement any noise control attenuation measures recommended in the approved study. The Agreement will also deal with any covenants/notices recommended in the approved study, that shall be registered on the land title and bind future owners on subsequent transfers, warning purchasers and/or tenants of expected noise levels due to the existing source of environmental noise. The Agreement shall be to the satisfaction of the General Manager, Planning, Infrastructure and Economic Development Department, or his/her designate. The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.;

or

1. Design the dwelling units with the provision for adding central air conditioning at the occupant’s discretion and enter into an Agreement with the City, at the expense of the Owner, which is to be registered on title to deal with the covenants/ notices that shall run with the land and bind future owners on subsequent transfers, warning purchasers and/or tenants of expected noise levels due to the existing source of environmental noise. The following two conditions will be included in the above-noted Agreement:

Notices-on-Title respecting noise:

i. “The Purchaser/Lessee for himself, his heirs, executors, administrators, successors and assigns acknowledges being advised that this dwelling unit has been fitted with a forced air heating system and the ducting, etc. was sized to accommodate central air conditioning. Installation of central air conditioning by the Purchaser/Lessee will allow windows and exterior doors to remain closed, thereby ensuring that the indoor sound levels are within the City of Ottawa’s and the Ministry of the Environment and Climate Change's noise criteria;” and

ii. “The Purchaser/Lessee for himself, his heirs, executors, administrators, successors and assigns acknowledges being advised that noise levels due to increasing roadway traffic may be of concern, occasionally interfering with some activities of the dwelling occupants as the outdoor sound level exceeds the City of Ottawa’s and the Ministry of the Environment and Climate Change’s noise criteria.”