Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 14, 2021
CASE NO(S).: PL210106
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant: Ponniah and Jayanthini Jegachandran
Appellant: Jeff Metcalfe
Subject: Minor Variance
Variance from By-law No.: 2008-250
Property Address/Description: 7690 & (7710) Soldier's Line
Municipality: City of Ottawa
Municipal File No.: D08-02-20/A-00315
LPAT Case No.: PL210106
LPAT File No.: PL210106
LPAT Case Name: Metcalfe v Ottawa (City)
Heard: June 24, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Jeff Metcalfe | Self-represented |
| Ponniah and Jayanthini Jegachandran | Carolina Campos Roberto Aburto |
| City of Ottawa | No one appeared |
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON JUNE 24, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Ponniah and Jayanthini Jegachandran (“Applicants”) of 7690 Soldier’s Line (“subject property”) in the City of Ottawa (“City”) are owners of the subject property where they intend to develop the subject property. The subject property is approximately 20 hectares (“ha”) in area with a frontage of 51 metres (“m”) and contain a single detached dwelling.
2The Applicants had previously obtained consent from the Committee of Adjustment (“COA”) on January 22, 2021 (“Approval”) to sever two new lots from the subject property parcel. The matter before the Tribunal is a minor variance on the minimum distance separation (“MDS”) required in order to develop the subject property.
3The Applicants require a minor variance from the Zoning By-law No. 2008-250 (“ZBL”) to permit the creation of a new residential lot with a reduced Minimum Distance Separation of 39 m from an existing livestock operation (to the barn located at 7732 Soldier’s Line), whereas the by-law, in this case, requires a Minimum Distance Separation of 81 m.
4The previous approved consent application resulted in the following three parcels:
| File No. | Frontage | Area | Municipal Address |
|---|---|---|---|
| B-00292 | 50 m | 0.81 ha | 7700 Soldier’s Line (vacant parcel of land) |
| B-00293 | 50 m | 0.81 ha | 7710 Soldier’s Line (vacant parcel of land) |
| B-00294 | 51 m | ≈20 ha | 7690 Soldier’s Line (the existing dwelling) |
5Mr. Metcalfe, the Appellant, appealed the minor variance on reduction of the MDS and he requested that the Tribunal issue a witness summons for John O’Neill, a land use planner at Ontario Ministry of Agriculture Food and Rural Affairs (“OMAFRA”) to appear. The Applicants requested the issuance of a witness summons for City Planner, Krishon Walker to attend at the hearing. Both summons were issued by the Tribunal. Counsel for the Applicants, Ms. Campos also called Paul Robinson as an expert witness. All witnesses were qualified by the Tribunal to give expert opinion evidence in land use planning matters.
6Mr. Metcalfe’s position is that when the Applicants (who own other lots) undertook their consent applications, the number of lots created was six lots. The present lot is one of those lots. His view is that the Type B higher density guidelines are applicable in the MDS guidelines of the OMAFRA. The Applicants have referenced the Type A lower density guideline, which in his view is wrong. The Tribunal notes that what is before it, is the minor variance and not the consents to sever. Nevertheless, Mr. Walker, the City’s planner confirmed that Type A MDS I guidelines are applicable. He stressed that Guideline #43 is applicable for the variance application.
7Mr. Metcalfe also stated that he owns two properties opposite the subject property viz 7705 and 7675 Soldier’s Line which share the road boundary, and in his opinion are in close proximity with the subject property. He stated that the relevant Type B MDS guideline should be used to calculate the minimum distance rather than the Type A, which will mean that the MDS is double the distance required. Hence, the MDS should be 162 m instead of 81 m. He believes that the properties on this road boundary will increase to 12 houses including the six created by the Applicants, which means a higher density and sensitivity. This he said, requires the Type B MDS guideline and not the Type A guideline.
8He opined that the single lane access to his house will be congested with the likely five to six new houses to be constructed by the Applicants on those six lots. There will be construction noise and traffic issues which will be a disruption of this quiet neighbourhood where he has built his dream home. The wrong calculation of Type A MDS I, 81 m distance and now further reduced to 39 m will make the MDS guidelines meaningless when the purpose was to reduce potential conflict.
9The Appellant, who is a layperson was provided appropriate guidance on the Tribunal process and his rights and obligations as a party at the hearing. The Appellant did not provide any planning evidence to contradict the Applicants’ expert’s planning evidence. The Tribunal noted the objections of counsel for the Applicants that the Appellant’s complaints of severed lots, construction noise and traffic are not before the Tribunal and should be disregarded.
SEVERANCES
10Mr. Walker gave evidence on the January 4, 2021 planning report he authored, where he said the subject property is designated as General Rural Area on Schedule A of the Official Plan (“OP”) and is intended to accommodate a variety of land uses that are appropriate for a rural location. The current policies for the General Rural Area permit the severance of a lot in existence as of May 14, 2003, provided that the severed parcel has a minimum lot area of 0.8 ha with the retained parcel having a minimum lot area of 10 ha. The severed parcel is 0.81 hectares and the retained lot is approximately 20 ha. The proposal is consistent with the OP severance policies. The subject property is zoned as Rural Countryside Zone.
11As there is an active livestock operation within the vicinity of the subject property and new lots for residential development are proposed, MDS calculations were required and submitted with the application. The MDS calculations determined that one of the proposed lots (7710) would not conform with the setbacks required as per section 62 of the ZBL and as a result, the Applicants require relief from the COA. The purpose of MDS is to prevent land use conflicts and minimize nuisance complaints from odour. While there is an active livestock operation within the vicinity of the proposed lots, given the amount of livestock housed (two horses currently that may increase to three or four horses in a hobby farm at 7732) and that the lots are not used for agricultural purposes, staff is of the opinion that the impact from those livestock operations would be minimal. Mr. O’Neill’s testimony also confirmed the MDS guideline, taking a nutrient unit of 2, will yield the MDS of 81 m under the Type A, less sensitive, use calculation.
12Mr. Walker explained that based on the OP, and given that Soldier’s Line is classified as a rural collector, a right-of-way protection of 26 m is required. As a condition of approval, and consistent with both the Provincial Policy Statement (“PPS”) and the City’s OP policies, the planning department has requested that the sufficient frontage across both the severed and retained lands be conveyed to the City to provide for a road right-of-way measuring 13 m from the centreline of Soldier’s Line.
13Right-of-way protection is a standard requirement on any property being developed and as per the PPS and the City’s OP, lot creation is a form of development. The requirement for road widening applies to both the severed and retained parcels as the proposed severance is essentially development on the retained parcel.
14Given that the proposal is consistent with the policies of the OP and that the severed and retained parcels will be in full compliance with the provisions of the ZBL, planning staff was satisfied that the proposed severance was appropriate. Several conditions were imposed on the consent applications. The Tribunal acknowledges that the consent application details have been provided as contextual background and are not in issue since the consent applications were not appealed.
ISSUE
15The issue for the Tribunal is whether the proposed development will be consistent with, or in conformity with, the provincial policies and legislative requirements and whether the variance requested meet the statutory tests. The Tribunal is required to carefully consider the applied for MDS setbacks against the guidelines which are there to prevent conflicts from arising due to the proposed use with the existing uses in the General Rural Area.
16The Tribunal is satisfied based on the uncontradicted evidence (which withstood the Appellant’s cross-examination) before it that the variance should be allowed and authorized for the reasons that follow.
17The Tribunal is satisfied that the proposed variance at the subject property has regard for the matters of provincial interest as set out in s. 2 of the Planning Act (“Act”) in particular 2(h), the orderly development of safe and healthy communities.
18An applicant must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met, i.e., that the variance maintains the general intent and purpose of the official plan and the zoning by-law, is desirable for the appropriate development or use of the land building or structure and is minor in nature.
ANALYSIS AND FINDINGS
19It is the uncontroverted opinion of Mr. Robinson that the proposal is consistent with the policies of the PPS 2020, noting s. 1.1.4.1 states that in rural areas, healthy, integrated and viable rural areas should be supported by: a) building upon rural character, and leveraging rural amenities and assets; c) accommodating an appropriate range and mix of housing in rural settlement areas; d) encouraging the conservation and redevelopment of existing rural housing stock on rural lands; and e) using rural infrastructure and public service facilities efficiently.
20The MDS I guidelines require the municipality to determine if a reduction to the MDS setbacks is appropriate in a given circumstance.
21Mr. Robinson opined that the proposed development conforms with s. 3.7.2 of the OP, General Rural Area Policies:
General Rural Area
The General Rural Area contains a variety of land uses, such as farms, rural housing, wood lots and forests, small industries, golf courses, and in many places, existing clusters of residential subdivisions and severances and commercial development. The intent of this designation is to accommodate a variety of land uses that are appropriate for a rural location and to limit the amount of residential development such that development will not preclude or resist continued agricultural and or other rural non-residential uses.
22Mr. Robinson noted that:
- General Rural Areas are designated on Schedule A of the OP with the intent to provide: a. a location for agriculture and for those non-agricultural uses that, due to their land requirements or the nature of their operation, would not be more appropriately located within urban or Village locations; b. for a limited amount of residential development by severance and other rural and tourist service uses that do not conflict with a) above.
- The following uses are permitted within the General Rural Area without requiring a zoning by-law amendment: a. Agricultural uses, forestry and conservation, and natural resource management activities; b. Residential uses on existing lots of record and on new lots created by severance as provided for by this Plan; c. Animal boarding, breeding, and training facilities, including stables; d. Bed and breakfast establishments; e. Open space; f. Cemeteries.
- Nothing in this plan is intended or may be applied to restrict a normal farm practice carried on as a part of an agricultural operation on lands designated Agricultural Resource Area in accordance with the Farming and Food Production Protection Act, as amended from time to time.
- All new farm and non-farm development, including severances, will comply with the Minimum Distance Separation (MDS) formulae, as amended from time to time, as described in policies 12 and 13 of section 3.7.3. Agricultural uses must respect the requirements of policy 2 in section 3.7.3 Agricultural Resource Area, regarding provisions for the establishment and operation of farms.
23He explained that all new farm and non-farm development, including severances, will comply with the MDS formulae, as amended from time to time, except in the case of:
a. the development of an existing lot of record that falls almost all or completely within a calculated MDS I separation distance from a neighbouring livestock facility; or b. the creation of a new lot containing an existing dwelling and that dwelling falls partially or completely within a calculated MDS I separation distance from an existing livestock facility on a neighbouring parcel of land.
24On behalf of the owners of the property at 7690 (7710) Soldier’s Line, he submitted a minor variance application for the subject property which is in an RU zone, Rural Countryside. This application is being filed in conjunction with recently submitted consent applications for this property. The entire property at 7690 Soldier’s Line is subject to consent applications to divide the lot into three parcels to allow two new residential lots to be permitted.
25The most westerly of these three future parcels has been identified as 7710 Soldier’s Line. It is a parcel of land with a width of 50 m (164 feet) and a lot depth of 162 m (532 feet) and an overall lot area of 0.81 ha (2 acres). It is this 2-acre (0.81 ha) parcel of land that is part of the overall property at 7690 Soldier’s Line which is the subject of this minor variance application. Presently there is a single-family home (7690 Soldier’s Line) near the north east corner of the overall property.
26The intent of this application is to allow for a reduced MDS distance for the future lot at 7710 Soldier’s Line. The requested variance is from section 62 (2) of the ZBL in which an 81 m separation distance is required and a 39 m separation distance is being provided from the barn in question to the west lot line of 7710 Soldier’s Line.
27There is a small barn to the west of the subject property on the property at 7732 Soldier’s Line which is 39 m (128 feet) to the west of the west lot line of 7710 Soldier’s Line.
28Mr. Robinson explained (as did Mr. O’Neill) that the MDS calculations use Nutrient Units as a basis for calculating the separation distance between an agricultural use and new residential development. The minimum number of Nutrient Units that the MDS calculations factor in is 5 Nutrient Units. Based on the size of the nearby barn at 7732 Soldier’s Line and its use as a horse barn, it only results in a calculation of 2 Nutrient Units. The barn is located at the west lot line of subject property (7690/7710) and the subject property is on the south side of Soldier’s Line.
29The MDS calculations would be the same whether one was to have as few as one chicken or one sheep or as many as five horses as they would still generate a minimum separation of 81 m. The 81 m setback is the minimum available through the MDS calculations and this minimum distance applies for situations between a single animal in a barn up to five animals in a barn and the barn in question is a very small barn with limited capacity.
30Mr. Robinson opined that the intent and purpose of the OP and the ZBL are met through this minor variance application. The property is in a General Rural Area designation, which permits new rural residential uses and the lotting pattern and size of lots being proposed meets the criteria in the OP for this designation. With the proposed lot size and area meeting the RU zoning regulations, he believes that the general intent and purpose of the ZBL are maintained.
31The variance is minor in nature as the barn to the west is very small and is only sized for a very small number of horses that are kept by the family living at 7732 Soldier’s Line. The property at 7732 is 3 ha and it only contains this one barn for horses and it is only a barn suitable for a couple of horses. The separation distances in the MDS calculations that represent the minimum size of barn cover from one to five horses and this barn is not sized for five horses.
32Mr. Robinson noted that, as shown in the surveyors’ sketch that is being filed, there are portions of the proposed lot at 7710 Soldier’s Line that could be built on which falls outside the MDS arc of 81 m separation. However, the regulations indicate that the separation distances that must be reviewed are from the barn to the closest point of the property subject to the applications. The distance between the barn and the western edge of the subject property is 39 m. He noted that the house to the northeast (built between 2014 and 2017) of the barn in question, is on a property whose west lot line is approximately 55 m northeast of the barn.
33Mr. Robinson’s opinion is that the variance that is being requested is minor in nature.
34He stated that the variance is desirable for the appropriate development or use of the property as these lands are zoned RU, which permit rural residential properties and the property frontage and lot area meet the RU zoning requirements. A rural residential severance in this location is an appropriate use on lands that are currently vacant in nature. There are other rural residential properties on this road at the present time. It is Mr. Robinson’s opinion that the variance application meets the four tests of a minor variance under the Act.
35Based on the uncontradicted evidence of the expert witnesses, the Tribunal finds that s. 1.1.4 and s. 1.1.4.1(a) (c) (d) and (e) of the PPS relating to rural areas apply to the subject property. Managing and directing land use in healthy, integrated and viable rural areas to achieve efficient and resilient development land use to build upon the rural character and promote an appropriate range of housing stock in rural settlement areas and taking advantage of the rural infrastructures and amenities is important. The proposed development is consistent with PPS policies on rural areas as provided in s. 1.1.4. The Tribunal is satisfied that the proposed development is consistent with the PPS.
36The Tribunal finds that the proposal conforms to the OP, noting that the subject property is designated General Rural Area on Schedule A of the OP where residential uses are primary permitted uses. This proposed development meets the objectives and land use designation of section 3.7.2 of the OP. The development does not conflict with agricultural use location. This new residential dwelling use complies with the Provincial MDS Formulae implementation guidelines. The location for the proposed development is one that is made to minimise potential complaints related to odour from the adjacent property’s barn and to support the objectives of the General Rural Area. The Tribunal finds that the objectives of the Area are met in relation to the OP policies. The Tribunal is satisfied that the proposed variance maintains the general intent and purpose of the OP.
37The subject property is zoned RU, Rural Countryside. The proposed use of a residential dwelling is a permitted use. There is an existing barn on a separately owned property on the west side of the subject property which includes the keeping of horses. In accordance with the requirements of the MDS I formulae as established by the Province and implemented under the guidelines established, OMAFRA gives municipalities the ability to reduce MDS setbacks through minor variances (Guideline #43 – MDS I setbacks should not be reduced except in limited site specific circumstances that meet the intent of this MDS document. If deemed appropriate by a municipality, the process by which a reduction may be considered would typically be through a minor variance to the local zoning by-law provisions). It has been established by the experts’ evidence and testimony, and it is the finding of the Tribunal, that the correct MDS calculation is the Type A MDS I calculation for the application which yielded an 81 m separation distance. The testimony also shows that the MDS is to reduce possible conflict with sensitive uses. There are only a few residential dwellings on Soldier’s Line on large lots and they are beyond the MDS I setbacks and are not affected. As for the Appellant, his parcels are also mainly beyond the MDS I setbacks and would not be affected. Visual evidence puts the barn from the Appellant’s properties beyond the MDS. The Tribunal is satisfied that the proposed variance maintains the general intent and purpose of the ZBL.
38The proposed variance is suitable for the appropriate development of the land as it will result in a residential dwelling in the municipality. The subject property is within a general rural area where the proposed land use of a residential dwelling is a common and permitted residential use. The fact that the neighbouring property’s horse barn is sited on a hobby farm where the number of horses is currently two and the barn may house up to a maximum of four horses is a factor that is considered by the Tribunal. A small barn with just a few horses will mean minimal odour emissions from the hobby farm and will lead to less odour related complaints. The barn is located to the west of the subject property while the subject property is approximately 20 ha in area. Considering the lot size, the impact of odour can be minimized. The Applicants have the ability to site the residential dwelling on the 7710 parcel in a location in excess of the MDS 81 m arc. The proposed development is appropriate for the subject property and represents good planning. The Tribunal is satisfied that the proposed variance is desirable for the appropriate use and development of the subject property.
39The proposed variance will not result in unacceptable adverse impact on the adjacent lands. The barn at 7732 is a small barn housing up to three or four horses only and the MDS of 39 m to the lot line of 7710 will not impact the residential use of the Applicants’ lot. The parcel 7710 is 0.81 ha in area and the lot is of a significant depth (162 m) that enables a dwelling to be built outside the MDS 81 m arc, if the owner of 7710 is inclined to do so. This 39 m reduction is a requirement for the barn to be separated and measured to the nearest lot boundary line of 7710. Since the subject property is large, there is no privacy issues of overlook or shadowing. There is no evidence furnished to the Tribunal of traffic congestion and there is no evidence of construction or noise pollution presented. The Tribunal is satisfied that the variance is minor in nature.
ORDER
40The Tribunal orders that the appeal is dismissed and the variance to Zoning By-law No. 2008-250 is authorized.
“T.F. Ng”
T.F. NG
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.