Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 20, 2021 CASE NO(S).: PL190492
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Bayview Ottawa Holdings Ltd. Subject: Application to amend Zoning By-law No. 2008-250 - Refusal or neglect of the City of Ottawa to make a decision Existing Zoning: Mixed-Use Downtown, Subzone 2, Urban Exception 113, Schedule 74 MD[113]S74 Proposed Zoning: Site Specific Exception Purpose: To permit the development of a 17-storey hotel including a two-storey podium housing hotel functions and a café on the ground floor facing York Street with 224 guest suites to be provided. Property Address/Description: 116 York Street Municipality: City of Ottawa Municipality File No.: D02-02-18-0071 OLT Case No.: PL190492 OLT File No.: PL190492 OLT Case Name: Bayview Ottawa Holdings Ltd. v. Ottawa (City)
Heard: May 25, 2021 by video hearing
APPEARANCES:
Parties City of Ottawa Bayview Ottawa Holdings Inc.
Counsel T. Marc J. Polowin M. Polowin
DECISION DELIVERED BY G. BURTON AND D.S. COLBOURNE AND ORDER OF THE TRIBUNAL
1This was an appeal by the owner Bayview Ottawa Holdings Ltd. (the “Appellant”) of 116 York Street in the ByWard Market area of the City of Ottawa (the “City”). The City, after following all procedures required for submission and consideration of a development application, refused the requested Zoning By-law amendments (“ZBLAs”) for the site. The owner then appealed to the Ontario Land Tribunal (formerly Local Planning Appeal Tribunal, “LPAT”). The owner wishes to construct a 17-storey hotel on the full footprint of this rectangular site, located on the south side of York Street just east of the ByWard Market. It is about 60 metres (“m”) east of the intersection of Dalhousie Street and York Street, Dalhousie being the easterly boundary of the “core” Market area. The lot extends 20.1 m along York Street, with a depth of 50.5 m and an area of 1016 square metres (“sq m”). It is presently used as a surface parking lot, with access off York by a wide curb cut of about 9-10 m.
THE PROPOSAL
2Three witnesses were qualified to provide professional evidence for the proponent: Mike Dror for the setting and the planning background, Linas Saplys for the architectural design and Julie Harris for the heritage elements of the proposal. The Appellant proposes to construct a 17-storey hotel on the site, Hampton Inn by Hilton. This would have three parts horizontally: a two-storey podium, a three-story brick façade and a tower portion, from the sixth floor to the 17th floor plus mechanicals. There would be a 773 sq ft café on the ground floor off York Street, with pedestrian entrances there to both the hotel and the café. The two-storey (8.9 m) podium would accommodate hotel functions, including a lobby, lounge, dining, fitness centre with pool and meeting rooms.
3A terrace is proposed for the roof of the podium’s second floor, where a mix of deciduous and evergreen vegetation would be placed on the northern edge facing York Street. This would also serve hotel functions. The tower would then step back 6 m on the third level and be notched back at the sixth. This would provide for an appropriate fit, Mr. Dror testified, with the five-storey heritage structure to the east. The tower would have 16 suites per floor, totaling 224.
4The vehicle entrance would be by way of a “porte-cochere” structure, located entirely within the building’s eastern end. This would contain an enclosed driveway about 6.24 m wide, with two drop-off spaces and loading space to the rear. The actual entrance to the garage is further to the south and rear interior of the building, leading to 63 parking spaces on three levels, which would be for hotel guests only. The garage door would not be visible from the street. The present wide curb cut would be reduced.
Surroundings
5The subject block is bounded by Dalhousie Street to the west, York Street to the north, Cumberland Street to the east, and George Street to the south. One short block south of George Street is Rideau Street, a “Traditional Mainstreet” in Schedule B, Urban Policy Plan (Exhibit 1A, Tab 3), with many existing and planned tall buildings there and to the north and east. The Parliament Buildings are located approximately 1.7 kilometres (“km”) further west of the site. A large 17-storey hotel, the “Andaz Ottawa ByWard Market” (“Andaz”), was constructed relatively recently (2014-15) two properties to the west, on the southeast corner of Dalhousie Street and York Street. Just to the west of this intersection is the “core” of the ByWard Market. Between the Andaz and the subject site is a two-storey cocktail bar and parking, on properties now owned by the Andaz.
6Just north and east of the subject site York Street widens to a 39 m right-of-way, divided by a central treed boulevard. The north side of York Street is mainly low-rise two to three-storey commercial and residential structures, some with individual heritage designations. While there is an overall Heritage Conservation District (“HCD”) in place in the area, its effect on this site is an issue, as discussed below. Both parties’ witnesses agreed that the north side of York Street has a very different character from the south, which has been used since the 19th century for commercial and light industrial purposes. The structures on the north side are or were mostly low-rise residential and are built to the sidewalk at the front property lines.
7However, further east along York Street from the subject property, is a six-storey designated heritage building, the S.J. Major Wholesale Grocers (“Major”), now having commercial tenants. Further still are townhouses and high-rise apartments at 134 York Street. More height has also been approved to the south of the subject site on George Street, and significantly more height is permitted on Rideau Street two short blocks to the south. There are many taller structures in the area: the 17-storey Andaz Hotel (321-325 Dalhousie Street), the 15-storey York Plaza Condos (134 York Street) and an approved 22-storey residential building on the street to the south at 137-141 George Street. Respecting tower separation distances, the proposed tower structure would be located about 20 m from the existing Andaz to the west, and in excess of 60 m from the condos at 134 York. There would be about 23 m between any hotel suite windows here and the approved building to the south at 137-141 George Street.
Planning Evidence – Mr. Dror
8The Appellant’s background and planning evidence was provided by Mike Dror, an experienced professional planner. He described the area via photographs and a rendering of the proposed hotel structure (Exhibit 3). He emphasized the extensive differences between this block of York Street and the surrounding blocks, where there are much higher structures both built and planned (especially to the south on George Street and Rideau Street).
9The subject property is designated Central Area on Schedule B of the City of Ottawa Official Plan (“OP”). Applicable Policies are found in section 3.6.6, where York Street is identified as an entrance to and promenade through the ByWard Market, with significant heritage character [section 3.6.6 (7)(c)]. Unique heritage resources are to be protected, and new development should respect and complement nearby heritage buildings. The Central Area Secondary Plan indicates that the site is within the Lowertown (ByWard Village) Character Area. Policies for this area are found in section 1.8 of the Secondary Plan. The Lowertown area extends from Rideau Street at the south, Dalhousie Street to the west, St. Patrick Street to the north and King Edward Street to the east.
10The Zoning By-law zones the property Mixed Use Downtown, Subzone 2, Exception 113, subject to Schedule 74 (MD2[113]S74). A hotel is a permitted use here, and other requirements address an active streetscape, gross floor area (“GFA”) of the ground floor, maximum height within 6 m of York Street, and parking. Mr. Dror stated that this application would require amendments only for the height of 59.6 m, loading space requirements and the heritage overlay. The existing heritage overlay would limit development to the same character and scale, massing, floor area and location as the building that existed on the site in 1978 when the overlay was enacted. However, the parties agree that there would be no such expectation for the subject site, and the Overlay would not be applied (Exhibit 14).
11Complicating the planning context here is the site’s location within the ByWard Market Heritage Conservation District (“BMHCD”). It is very close to the east end of the District. The ByWard Market itself begins with the block to the west of the subject site, and across Dalhousie Street. Boundaries of the BMHCD may be seen at Exhibit 1B, Tab 20, p. 8. Properties a block to the south on George Street are not within this HCD. Because a large proportion of all parties’ evidence was devoted to the heritage issues, they will be set out in some detail later.
12Mr. Linas Saplys was qualified to provide professional architectural evidence. He has long been involved with hospitality projects, providing designs for many hotel owners including Hilton. He stressed that this site had a small footprint of only 10,000 sq ft, with one access point off York Street. No underground parking is required, but it will nevertheless be supplied. There would be an interior drop-off zone for taxis and guests. The porte-cochere at the east side would be double height (15.53 ft) and 20 ft wide to accommodate trucks, since loading would occur at the rear of the interior driveway.
13A podium of about 10 m would animate the front façade and would both “hide” the hotel from the street as well as maximize traffic flow. The roof on the second storey would allow for vegetation to meet the landscaping requirement, and also provide a view to the street. It is difficult to supply the required amenity space within the narrow site.
14Also problematic for this narrow design was providing window access for all rooms, without creating blank facades next to adjacent property lines. This resulted in a unique plan for angled and recessed window bays, which add relief to the side walls and will form “light wells” to catch light from the north and south. The walls could then be 1.2 m from the property lines.
15As to the surroundings, Mr. Saplys noted that this site is favourable for a hotel. It is less than 1 km from the Parliament Buildings, beside the ByWard Market and close to residences in Lowertown as well as shopping on Rideau Street. It is in an ideal tourist hotel location. It would be about the same height as the existing Andaz Hotel. The stepback of the tower behind the podium level would permit a more accommodating pedestrian feel than the “straight up” Andaz design. This feature would also ensure that the new tower structure would not be visible from the Market core. Additional shadowing would not be a problem, as studies indicate that shadows only briefly “touch” the north side of York Street (Exhibit 2, Design Brief, pp. 17-22).
16Mr. Saplys emphasized that the design elements replicate to the extent possible the heritage structure to the east (Major), as also set out by Ms. Harris (Exhibit 7, p. 15). The materiality is intended to address that of the Major building, with its horizontal lines and vertical brick.
17Mr. Dror then addressed in more detail the history of the application, and the planning framework for this proposal in this location. This application was submitted to the City on July 27, 2018 and deemed complete on August 3, 2018. Of note was the prior 2018 application by the existing Andaz Hotel for a ZBLA for its parcels to the east at 110-112 York Street, as well as a portion of 137 George Street. The application proposed a 19-storey addition to the Andaz, next to the subject tower. Both proposals were reviewed by the Urban Design Review Panel for the City (“UDRP”). However, Mr. Dror testified that the Andaz proposal does not appear to have been pursued. The UDRP had concerns about the impacts of the proposed development here on an approved residential building at 137-141 George Street to the south. The UDRP recommended reductions to the then 20-storey height and scale, an increased podium height from 1 to 2 storeys with a terrace above, and revisions to better relate to the architectural features of the Major building to the east, as well as to heritage structures on the north side of York Street. These were kept in mind in the final design.
18The Appellant then brought an application for ZBLAs to permit the proposal. No OP amendments were required. This application was deemed complete by City staff shortly thereafter. However, City staff subsequently recommended refusal, based on lack of conformity with the OP (in particular, Policies 3.6.6(6)(f) and (7)(c), as well as section 1.8 of the Central Area Secondary Plan). Additional concerns are noted, including the relationship to the (then) proposed Andaz addition. Council refused the application on January 29, 2020.
19Mr. Dror emphasized that the Lowertown area of the Central Area Plan to the south of York Street is characterized by a mix of newer high-rise developments built in the last 20 years. These include the Andaz on Dalhousie Street, 137-141 George Street to the south of the subject site (approved at 22 storeys), 134 York Street (15 storeys), the East Market Phase 1, 2 and 3 (14 storeys at 180 York Street, 11 storeys at 383 Cumberland and 22 storeys at 179 George Street), and the Claridge Royale (180 George Street, 28, 19 and 27 storeys). Also included are an older high-rise building (25 storeys, 160 George Street), and an approved 24-storey mixed-use hotel and residential building (AC Marriot, 201-213 Rideau Street).
20Mr. Dror described features of the Andaz which the current proposal addressed, following staff and UDRP comments on setbacks, windows and street presence. The Andaz is only slightly shorter than the proposed (59.4 m, including mechanical penthouse). There are windows along most of the east façade on most floors. The majority of the ground floor is a hotel lobby with no active uses, and at-grade tinted windows. There is a small loading door and exit door on York Street, with the main entrance on Dalhousie Street.
21The Major heritage structure to the east of the subject site also creates design challenges for the owners here. That property is a through lot with frontages on both York Street and George Street. The parking lot for the office uses there abuts the eastern lot line of the subject site. The Major structure is built right to its lot line on York Street, without any setback.
22As mentioned, to the south and rear of the subject site, a 22-storey tower has been approved at 137 and 141 George Street. This would be set back approximately 19.4 m from the rear (south) lot line of the subject site.
Policy and Regulatory Context
23Mr. Dror then addressed the applicable planning context. The proposal must be consistent with the policies in the Provincial Policy Statement, 2020 (“PPS”). He testified that the zoning amendments are consistent with Part IV in particular, and with many in Part V. He adopted Ms. Harris’s conclusion that this site is not part of a “protected heritage property” that must be preserved, as it had not been designated by a “Plan” (see discussion below). Section 1.3.2 of the PPS promotes employment uses, which this does via the proposed hotel commercial use. Section 1.5.1 a) respecting public spaces is met by provision of public access to both the café and hotel lobby from the sidewalk. This centrally located development, close to transit, satisfies most of section 1, while section 2.6.3 is met as well. This requires evaluation and demonstration that a protected heritage property’s heritage attributes (‘principal features or elements”) will be “conserved” (as defined). Mr. Dror opined that all are met by this proposal.
24In his opinion, the OP policies that are determinative here are those that were in force at the time of the application , July 27, 2018, being Ottawa Official Plan, 2003 as amended. The Agreed Statement of Facts, Exhibit 14, Issue 8, appears to concur. He concluded that the proposed ZBLA conforms to the OP. Although they did not come into force almost a full year after the Application was made, Mr. Dror also reviewed OPA 150 and OPA 180. In his opinion, the proposal has had adequate regard for both amendments.
25This site is designated Central Area on Schedule B – Urban Policy Plan. This is described in section 3.6.6. of the Plan as “the economic and cultural heart of the city, and the symbolic heart of the nation” and “the main tourist destination in the National Capital Region, with 5.5 million visitors yearly” (section 3.6.6). This Central Area plays a vital role in the City, by its distinct identity, heritage character and unique combination of employment, government, retail, housing, entertainment and cultural activities. The desired minimum densities for the areas where intensification is encouraged are set out in Figure 2.3 (Exhibit 1a, Tab 2B, p. 23). Here the density would be 500 persons/jobs per hectare, thus for this site it would be 1/10 of 500, or 50, which would be met by the hotel use.
26Section 2.5.1, Urban Design and Compatibility sets out key urban design principles for this important part of the National Capital. Section 3.6.6 policies for the Central Area include reinforcement of the Central Area Secondary Plan [3.6.6.2 d)]. The proposal would not offend Annex 8A – Views and View Sequences or either of Annex 8B – Maximum Building Heights/Angular Planes, or 8D – Maximum Building Heights. Other structures nearby have been approved at greater heights. Section 3.6.6.5’s design criteria are addressed as well, but with the slight increase in shadowing seen in the Appellant’s shadow studies. Section 3.6.6.7 of the OP names York Street as a distinctive street, stating that is “an entrance to, and promenade through the ByWard Market, with a significant heritage character.” Its “unique pedestrian characteristics “would not change with the construction of the proposed hotel. Mr. Dror examined the policies of the Central Area Secondary Plan as well, concluding that the proposal would also conform to the policies applicable to Lowertown (Exhibit 1A, Tab 6).
27This parcel is located as mentioned within the BMHCD. Here, height and density controls are used to ensure that new developments respect the pattern established by the existing heritage properties. This provides some level of architectural consistency between these properties and new construction, and also protects against pressures to tear down existing heritage buildings. This District speaks to the importance of setbacks, which has traditionally meant that buildings should be on or near the front property line. The proposal respects the intent of this recommendation by locating the building at the front lot line, and by limiting the podium to two storeys in height (8.9 m). Then the high-rise portion of the building is set back a minimum of 6 m from the edge of the podium.
28The zoning provisions of the City of Ottawa Zoning By-law No. 2008-250 were considered. As stated, this zones the subject site MD2[113] S74 (Mixed- Use Downtown Zone, Subzone 2). The purpose of the MD zone is to support the Central Area as the central place for employment and shopping, while also allowing residential, cultural and entertainment uses. The regulations ensure that the Character Areas created within the Central Area Plan (including Lowertown, where this site is located) continue to serve as primary business or shopping areas. They are to maintain their distinct character, and facilitate intense, compatible and complementary development. They also ensure active, pedestrian-oriented environments at street level. Importantly, they protect the visual integrity and symbolic primacy of the Parliament Buildings.
29The MD zone in By-law No. 2008-250 permits a range of non-residential uses including a hotel and a restaurant. The MD2 subzone requires that a restaurant or hotel occupy 100% percent of the part of the ground floor fronting the street to a depth of 3.0 m, excluding lobby areas, mechanical rooms and access to other floors. The latter cannot exceed 50% of the GFA of the ground floor.
30The MD2 subzone also sets a maximum frontage width of 21 m for permitted uses along York Street, and provides for maximum front yard and corner side yard setbacks of 1 m. The parent MD zone does not have a minimum lot area, lot width, front yard, corner side yard, interior side yard or rear yard setbacks. No maximum floor space index applies. Thus, Mr. Dror testified, the proposal, carefully designed to accommodate the regulations, requires very few zoning amendments.
31The maximum height is determined in the applicable schedule. Here Schedule 74 provides for a maximum height of 50 m along the south property line, which is to step down to the north towards York Street to a maximum height of 21.5 m, a distance of 6 m from the front lot line (i.e. an angular plane). A maximum height of 11 m applies to the front 6 m of the site.
32Urban Exception 113 provides that parking is required only for the permitted commercial uses. It is not required for this hotel use but would be provided in any event.
33The Downtown Ottawa Urban Design Strategy identifies empty parking lots such as the subject site as prime opportunities for intensification. Although this strategy emphasizes residential development, Mr. Dror opined that the proposed ZBLA is generally in keeping with the Downtown Ottawa Urban Design Strategy.
34The Transit-Oriented Development Guidelines call for transit-supportive land uses. This site is within 360 m walking distance of the Rideau Light Rail Transit station. The proposed use and amendments are generally in keeping with the Guidelines.
35The Urban Design Guidelines for High-Rise Buildings (“UDGHRB”) also provide non-binding direction for achieving appropriate high-rise development. Mr. Dror stated that the proposed ZBLA is generally in keeping with these Guidelines. He also reviewed the (later-enacted) Zoning Provisions for High-Rise Buildings, adopted in October 2019. These implement several guidelines in the UDGHRB, such as the minimum size of lot to accommodate buildings 10 storeys or more and setting minimum separation distances.
Conclusions and Opinion – Mr. Dror
36Mr. Dror concluded that the proposed ZBLAs are appropriate and desirable. The hotel development will fit harmoniously with the existing and planned built form context. It will enhance the area by intensifying an underutilized property now used as a parking lot, with a mixed-use hotel development, close to higher order public transit. This would provide a broader mix of uses in the ByWard Market neighbourhood. The hotel and ground floor café support the Central Area’s role as the economic and cultural heart of the City and promote it as a main tourism destination. It would also provide active uses at grade, and result in greater street animation and an enhanced pedestrian realm along York Street.
37Elimination of a surface parking lot as part of the redevelopment of the City block is desirable from both a planning and urban design perspective. It is in the broad public interest and strongly supported by the PPS and the applicable OP and Secondary Plan policies, he testified. It would be redevelopment making efficient use of land and infrastructure, at an intensity generally in keeping with existing and approved densities in the area and within the same block.
38The Central Area Secondary Plan permits medium- and high-profile development in this southern Lowertown site. The proposed separation distances are appropriate given the adjacent existing and approved tall buildings, its proposed non-residential use, and the angled orientation of most windows. Distances are in keeping with other existing or approved building relationships within Lowertown and its surroundings.
Heritage Issues - Ms. Harris
39The Appellant’s evidence relating to cultural heritage was provided by Julie Harris of Contentworks Consultants, who prepared the required Cultural Heritage Impact Statement (“CHIS”). She is an experienced heritage conservation planner with extensive practice in urban settings. Her Witness Statement may be seen at Exhibit 7.
40Ms. Harris testified that purported ByWard Market HCD was not adopted by an HCD Plan, as the present Act requires, but merely followed a 1990 heritage Study. She explained that the BMHCD had been designated under the Ontario Heritage Act (“OHA”) in 1991 by City By-law No. 60-91, following receipt of a Study completed in 1990. Under the current version of the Act, a Study can be upgraded to a Plan, which will then have binding legal effect. However, this “upgrade” was never done for this HCD. Thus, the BMHDC has no legal effect, she stated, and is not binding on either the owner or the Tribunal.
41Ms. Harris outlined the relevance of this issue for this proposal and its surroundings. Section 4.6.1 of the City’s OP, “Heritage Buildings and Areas”, concerns any designated heritage resource. A property within a Heritage Conservation District under Part V of the OHA is legally designated as a “designated resource” for the purposes of section 4.6.1. The subject property is indeed within and is part of the BMHCD. Therefore, if this application is governed by the requirements of the Act, strictest consideration and a permit would be required before development could proceed. Before the heritage criteria would apply to the application, however, the District would have to be properly designated by means of a Plan under the new version of the Act. Ms. Harris opined that this had not been done, based on an LPAT decision on a similar issue in 2017.
42In Statler v Ottawa (City) 2017 CanLII 80952 (ON LPAT), the Tribunal found that unless an HCD designation results from a Heritage Conservation District Plan (“HCDP”) passed in accordance with the OHA as it is presently constituted, an HCD did not have any legal status (discussion of this case follows). She clarified that the statutory requirements for an HCD Plan in section 42.1(5) of the present OHA had not been met in this instance (notice, public meetings, etc.) Thus, there is no requirement for a Heritage Permit for this development, since By-law No. 60-91 has no force of law under the OHA.
43On the issue of the proposal’s “fit” within this acknowledged area of critical cultural heritage resources, Ms. Harris considered the applicable physical and planning questions. She did so as if the property was part of a properly constituted BMHCD, having the force of law. For heritage considerations created by a high-rise structure here, she considered the “Guidelines” for the BMHCD; the Secondary Plan for Centretown and the ByWard Market area; OP Policy 4.6.1, “Heritage Buildings and Areas”; and heritage policies in section 2.6 of the PPS.
44The City currently uses Appendix B: “Building Improvement and Design Guidelines” of the BMHCD Study to evaluate development proposals here. It is stated therein that demolitions have threatened the “traditional quality of some of the streetscapes”. In her opinion, the proposed infill project will improve the quality of York Street, given that the site is vacant. It would help bridge the gaps in the streetscape that separate the Major building from the rest of the HCD. Most of the other principles in these Guidelines in her opinion have more relevance to the core of the Market area. There, the architecture is “layered”, “vernacular” and “modest.”
45Guideline 3.4.1 of the Study states that infill “must respect the scale and character of existing heritage properties and streetscapes”. Guideline 3.4.5 requires that “Building setbacks and heights should respect adjacent heritage properties and the streetscape”. However, for this site the “streetscape” for the HCD consists only of the half-block east of Dalhousie Street that is within the HCD. It is described as “a very uneven streetscape” in the evaluation record for 126 York Street (Major) to the east. The north and south sides of York Street here differ greatly in scale, character and setbacks. The north side was originally residential, as seen by its building heights, architecture, and setbacks. The buildings are rated as Category 1 (highest level) and Category 2 in the Study. However, the south side here has been used for commercial and light-industrial purposes since the late 19th century. The only designated structure here is the Major building, evaluated as Category 2.
46Therefore, the scale and character of the streetscape here are mixed. The only large properties within the HCD on the south side of York Street are the 19-storey Andaz, the six-storey Major, the two-storey building at 110 York Street next to the Andaz (Category 4), and empty lots with surface parking. The proposed building would contribute to the rehabilitation of the south side of the streetscape as a commercial street, Ms. Harris testified, by infilling an empty lot and improving the pedestrian realm. It maintains the same setback at the podium level as the three extant buildings on that block.
47With respect to Guidelines about height and views, Ms. Harris stated that the 19-storey Andaz at the corner already blocks much of the view from the core of the market area. The Central Area Views and View Sequences in Annex 8A to the OP illustrate the tests to be applied here. As well, the question of heights in the BMHCD Study are most affected by the streetscape conditions in the core market area, to the west of Dalhousie Street over to Sussex Drive. There, low-rise buildings establish continuous streetscapes over several blocks. The view east along York Street from Dalhousie Street would indeed be somewhat altered. However, the new building is an appropriate response to streetscape and heritage conditions. It will help complete the streetscape, and complement, not hinder, views from the Market to the adjacent Major Warehouse to the east. The low-built form of the core of the market area, the focus of the BMHCD, would be protected.
48In Ms. Harris’ opinion, traditional heights here are of less value in determining the appropriate height for a building on a vacant lot, only 20 m or so from a new 19-storey building. In any event, the subject site is likely to be overshadowed by a development to the south (137-141 George Street), approved for a 22-storey mixed-use building. While infill should consider “the historic pattern of the buildings previously on the site and of adjacent properties”, in this case the buildings previously on the subject site were a 2½-storey low rise structure with outbuildings. Due to the high-rise Andaz nearby and the narrow width of the subject property, a tall building is likely the only option for development of this site.
49The Secondary Plan for Central Area’s Byward Market Character Area states that new infill buildings must be sensitive to, and compatible with nearby heritage buildings, particularly with respect to scale, size, and lot development patterns. This new hotel would establish an “architectural relationship” with the Major structure in its organization, massing and decorative treatment, and in a contemporary manner. Ms. Harris included a detailed assessment of the proposal in this light (Exhibit 7, p. 15). She repeated that the proposed development is sensitive to nearby heritage buildings in lot development patterns, setbacks, materials and details, and in horizontal impact at the street edge. It deviates from the historic pattern, but not the current one, in terms of height. She sees conformity with other heritage guidelines as well, such as clearly divided functions across a building’s frontage. Here the hotel would divide the spaces at the ground level into a café, hotel entrance, and brightly lit and well-finished driveway. The driveway adheres to guideline 3.4.7, being a driveway at grade rather than a ramp.
50With respect to OP Policy 4.6.1.3, there appears to be no individually designated properties (Part IV, section 29) or properties on the Heritage Reference List (Part IV, section 27) within 35 m of the subject property, thus requiring a CHIS. Ms. Harris nevertheless prepared a CHIS. She considered the most relevant points from OP Policy 4.6.1.9 for review of applications for zoning amendments within a heritage conservation district. She concluded that these were all met here, except the issue of shadowing in Policy 4.6.1 e. There would be minor additional shadowing, but morning shadows also extend across York Street from the adjacent Major Warehouse. Her opinion is that there are counterbalancing positive impacts from a building that will help complete the streetscape with a sympathetic design.
51The PPS 2020 under Section 3 of the Act requires that “significant built heritage resources” and “significant cultural heritage landscapes” be “conserved”. Section 2.6.3 addresses the potential impact of development and site alteration adjacent to a “protected heritage property.” Section 2.6.3 prevents development on adjacent land except where heritage attributes will be conserved.” Ms. Harris stated that her evidence indicates that the heritage attributes of the protected property, namely the BMHCD, would indeed be conserved.
52In the context of the PPS, Ms. Harris testified, heritage significance is understood to be expressed via formal identification and evaluation by an approval body, such as by designation as a heritage conservation district. “Conserved” can involve a range of interventions for the “identification, protection, management and use” of heritage resources. The proposed development will not affect the heritage value or attributes of the BMHCD listed in the Study. Thus in Ms. Harris’ professional opinion, the subject site is suitable for a high-rise building from a heritage perspective.
City of Ottawa
53The City called three witnesses as well, to address planning, built form and heritage issues.
54Its planning evidence was provided by Kimberley Baldwin, a well-qualified land use planner in the City of Ottawa’s Planning Services Branch. She provided the same factual and planning background as Mr. Dror, having been responsible for evaluating the application before it went to Council. Council eventually denied the application, although it had been appealed before its decision, as is the Appellant’s right.
55Respecting the zoning amendments sought in the application, Ms. Baldwin summarized as follows:
a. Maximum building height of 59.6 m, (removing the angular height plane that would allow a building between 21.5 and 50 m);
b. Removal of the heritage overlay; and
c. Reducing the loading space size provisions.
56Ms. Baldwin emphasized Schedule 74, the height schedule for the underlying zone in the Zoning By-law, stating that it further informs the scale of development that may be contemplated here. It would permit a maximum height of 11 m up to a depth of 6 m from the York Street lot line. An angular plane, beginning 6 m from the York Street lot line, permits a maximum height of 21.5 m, sloping upwards to a maximum of 50 m along the rear south property line. The rise in height toward the south would ensure adequate transition from the lower-profile character of Lowertown, to the higher-profile development approved south of the site and situated outside of the heritage district.
57While the proposal would have an appropriate height on the Zoning By-law requirements, there would be no angular plane, and the tower height sought is 59.6 m for the remainder of the lot. The application included amendments for loading spaces. Section 113 of the Zoning By-law requires two loading spaces for a hotel use with a GFA of 17,000 sq m. The required width of a standard loading space is 3.5 m. Relief from the loading space provisions is needed, as there would be only one loading space 3.0 m in width.
58Consultations with the public resulted in many objections to the proposal, especially from the Lowertown Community Association and Heritage Ottawa. The common themes were related to: the height/lack of angular plane, impacts on heritage, impacts on the surrounding Lowertown/ByWard market neighbourhood, shadowing, access to light, cumulative impact of multiple high-rise proposals, views, impacts on future hotel users, traffic, loading, building design and proximity to other hotels. Almost all of these were raised by the City’s witnesses at the hearing.
59Ms. Baldwin then testified as to her opinion about the proposal in the planning context. She began with the applicable provisions of the PPS, finding lack of consistency with many provisions there. The Tribunal’s selection from those quoted: Policy 1.1.1. c), “environmental or public health and safety concerns.”; 1.5.1 a) “healthy, active communities should be promoted by planning public streets, spaces and facilities to be safe, “meet the needs of pedestrians, and facilitate active transportation and community connectivity.”; 1.7.1, long-term economic prosperity should be supported by: “…promoting well-designed built form and cultural planning, and by conserving features that help define character, including built heritage resources and cultural heritage landscapes.”
60Ms. Baldwin again finds inconsistency with the PPS policies, as the subject site is a narrow, interior lot within the Lowertown neighbourhood. There are no setbacks to the sides or to the rear of the property, the rear to the south being close to another high-rise building. There could be air flow and microclimate issues here. As such, the proposal may cause environmental or public health and safety concerns for the potential hotel users, pedestrians, and residents who reside in or pass through the area.
61The City OP provides a vision for York Street as an important pedestrian-oriented promenade. The “car-centric” design at the street level proposed here would conflict with the PPS policy to plan public streets to be safe, meet the needs of pedestrians and facilitate active transportation.
62The proposed high-rise building is out-of-scale with the predominantly lower-profile built form found in the historic Lowertown neighbourhood, Ms. Baldwin concluded.
Urban Design
63The City’s Urban Design evidence was provided by Christopher Moise, a qualified Architect, now on City staff as an Urban Designer (PII) in the Urban Design Group within Right of Way, Heritage and Urban Design Branch. He has been in this position since 2014 and participated in the pre-application consultation meeting for the proposal in October 2017. His concerns were: the large floor plate, large access area for parking facing the street, impacts on surrounding properties, transitions, and elevations facing internal property lines.
64In 2018 Mr. Moise had prepared an internal urban design analysis of 116 York Street and surrounding properties. This was to provide guidance regarding context, and recent City guidelines for high-rise housing. In the hearing he gave many opinions on the issue of how the proposal does not respond to applicable urban design principles and City guidelines. He supported Council’s decision to refuse the application as not representing appropriate or good urban design.
65Policy 4.11 of the OP contains most of the rules for design that must be met by a proposal. These were considered in his evaluation.
66By Policy 4.11.9 of the OP, the City assesses the appropriateness of a proposal by relying upon its approved Design Guidelines. Council had approved “Urban Design Guidelines for High-rise Buildings” (“UDGHRB”- Exhibit. 1A, Tab 9). The OP defines a high-rise as ten storeys or more in height.
67Mr. Moise then provided his opinions on how this proposal fails to meet the UDGHRB for this site (Exhibit 1A, Tab 9). He referred to the application drawings in the Design Brief (Exhibit 1B, Tab 21):
Height: Structures in this edge of a growth area are planned to be lower in height than those to the south (50-70 m). This would transition the massing between the higher built form of 50 m to the south, and a lower directly to the north of 7 to 15.1 m. This is to be met here through a 45-degree angular plane, as set out in the zoning schedule for this site. He concluded that the proposal far exceeds the intended heights appropriate for transition as illustrated by an angular plane identified for this site.
Lot Size: Guideline 1.16 provides for a lot large enough for sufficient tower separation from neighbouring properties where high-rises are permitted. The minimum area for a mid-block property is 1,800 sq m and this site is only about 1,015 sq m. The lot area is further decreased here to 895 sq m due to the 6 m setback from the street facade above 11 m. The minimum may be reduced, but not where the required tower separations, setbacks and stepbacks cannot be met. This property is only half as large as the minimum, and the proposal does not meet the other requirements.
Building frontage: Building frontages are to animate private/public spaces. This relatively short street frontage of 20 m is more than half blank walls, and neither this nor the vehicular access contributes to an animated frontage. Nor is transparency provided for the street frontage in this design (Fig UD-3b).
Tower Floor Plate: The maximum tower floor plate in the Guidelines is 750 sq m for residential high-rises, or offices 2,000 sq m. This allows for sky views and natural light. Mr. Moise noted that although a hotel is not defined as a residential use, the maximum tower floor plate for high-rise residential was applied here, because a hotel use is more analogous to a high-rise with residential units than to an open plan office building in its use, and in this context.
Tower Separation: The standard tower separation is 23 m. A high-rise tower is usually able to be half this distance, or 11.5 m from its property line. This can be reduced to 15 m centrally where properties are tight, opportunities are limited, and towers can be offset. This proposed high-rise tower is almost on three internal property lines. This imposes the obligation on neighbouring properties to meet the tower separation within their properties. This can be achieved through an agreement with neighbours, limiting distance or otherwise.
Blank Elevations: The large impact of high-rise buildings on the visual character of streets and neighbourhoods requires architectural features that activate and animate facades. The UDGHRB recommends that high-rise buildings not have blank elevations. This proposal, with three internal facades blank and only inset windows, does not meet this Guideline, in Mr. Moise’s opinion.
Garage doors: The Guideline requires minimization of garage doors facing the street. This is problematic, he found, on this property which is only 20 m wide. A garage door cannot provide an active street frontage that engages the pedestrian realm. An active street presence is an important objective for the ByWard Market. This proposal has 60-70% of its street frontage for access and exits. This greatly reduces the opportunities for street activity and engagement, he testified.
68Mr. Moise was of the opinion that the proposal did not represent good urban design, gaining support for this conclusion in the findings of the informal assessment in 2018 by the City’s UDRP. He utilised the concept of “replicability” (or precedent-setting) as well as that Panel’s use of the block pattern context.
69The concept of replicability is a method of analyzing the appropriateness of a proposal by asking the question “if this design approach was replicated on a neighbouring property would a positive or negative result occur from an urban design perspective?” To help answer this, figure UD-4a/b was created showing the resulting condition. A neighbouring building of the same height with zero side yard setbacks would limit access to natural light to all facing units and contribute to a larger shadow and wind impact on the public right-of-way and neighbouring properties. His conclusion was that this proposal would set a negative precedent for the block, since replicating it would result in a detrimental urban design condition.
70The subject property is situated within a design priority area, as defined in section 2.5.1– Design Ottawa of the OP. It is within the ByWard Market Precinct, and such Precincts are design priority areas as addressed there, requiring design excellence.
71The UDRP had noted the small site size, and set out two primary issues here, “block context” and “separation distance”. There would be considerable quality of life impact on the approved condo to the rear and south at 137 George Street. They also noted that this proposal did not meet the High-Rise Guidelines, and recommended that the floor plate be reduced, the step back from York Street increased, and that the units face north and south, not east and west. It also found that the proposed height is out of context with the neighbourhood. The proposal in their view represents overbuilding of the site.
72Mr. Moise concluded that the proposed height would not provide appropriate transition for this site. This is required under section 4.11, (11) and (12) of the OP. The Zoning By-law height restrictions provide for such transitions, and these should be met in order to mirror the heritage character found on the north side of York Street. The question of transition relates directly to the height of the proposal in its context. As this site is in an area set between the high-rise properties to the south and the low-rise properties to the north, adequate height transitions must be made.
Heritage
73The City’s heritage evidence was provided by Ms. Lesley Collins, Program Manager, Heritage Planning Branch, in the Right of Way, Heritage and Urban Design within the City’s Planning, Infrastructure and Economic Development Department. She is a professional planner and has worked in heritage conservation since 2004. From 2009 to 2020 she was a Heritage Planner in the Heritage Planning Branch.
74Ms. Collins pointed out that all properties located within the boundary of a heritage conservation district are subject to section 42(1) the OHA.
75As a designated heritage conservation district, the BMHCD is a significant built heritage resource for the purposes of the PPS, sections 2.6.1 and 2.6.3. It is also a “cultural heritage landscape” and “cultural heritage resource” for the purposes of the OP. Thus, the policies in section 4.6.1 of the OP apply to this proposal. Ms. Collins testified that in addition to the application under the Act, a permit under section 42(1) the OHA is also required for this development. No such permit has been applied for or obtained.
76Ms. Collins cited the rationale provided at the time of designation of the BMHCD in 1990. This heritage district has provided the services and sometimes the industrial support to consolidate the Market’s role as the centre of Ottawa commerce. Through activities based in the Market, Ottawa has assumed a metropolitan role for the Ottawa Valley and the Rideau Canal area. Since its designation, new development and additions have generally reflected the low-profile character of the HCD and complied with the guidelines in the HCD Study. The only “outlier”, she stated, is the 17-storey Andaz Hotel at 325 Dalhousie Street. This was constructed in 2014 to replace the previous 13-storey Union du Canada heritage building there. This was “an historical anomaly in the HCD for its modernist architectural expression and height”, she testified.
77All properties in the HCD were evaluated for their cultural heritage value as part of the Study, with each assigned a category between 1 and 4. Category 1 included the most significant buildings in the HCD, and Category 4 including the least significant properties. Vacant lots like the present are considered Category 4 by default.
78Ms. Collins said that the north side of York Street east of Dalhousie Street, within the HCD, includes “a highly intact late 19th and early 20th century residential streetscape”, mainly categorized as Category 1 and 2. However, on the south side, the Study acknowledged that the scale of the former Union du Canada building and the current Andaz Hotel are both out of character with the remainder of the BWMHCD. Respecting the Andaz and a handful of others in the study area, the study states:
Their enormous vertical and horizontal dimensions, their siting and their materials and detailing have in many cases destroyed the continuity that existed earlier.
79Ms. Collins described the 1913 S.J. Major Warehouse at 126 York Street to the east as a five-storey warehouse building, a rare example of this on the south-eastern boundary of the BMHCD. It was evaluated as a Category 2 and has strong links to the Market’s role in wholesale and retail grocery.
80The HCD boundary runs immediately to the south of the subject site. Thus, the approved development south of the site at 137-141 George Street is outside of the boundary of the HCD. The 10-storey apartment building at 135 York Street is also outside the boundary.
81Ms. Collins also pointed out that the subject site is subject to the Heritage Overlay, in section 60 of Zoning By-law No. 2008-250. As mentioned, however, the parties have agreed that this would not be applied here.
82She had provided comments to Ms. Baldwin of the City when the application was received. These included a requirement for a Cultural Heritage Impact Statement, as it was deemed that the proposal had the potential to adversely impact the heritage conservation district. She had also stressed the requirement for a heritage permit and the applicable policy in section 4.6.1(9) of the OP. In Ms. Collins’ opinion, the proposed development would have a negative impact on the cultural heritage value of the BMHCD. While the Andaz is similar in height, it is an historical anomaly in the HCD, and should not be used as precedent. The height of the proposed tower, the lack of transition to the lower heights to the north, as well as the architectural expression at grade, especially the garage entrance, were not compatible with the York Street streetscape or the rest of the ByWard Market HCD.
83Ms. Collins challenged the Appellant’s assertion that the proposed height is appropriate here. Figure 4.8 in the BMHCD Study illustrates recommended heights in the HCD. This generally shows the lowest for those surrounding the ByWard Market building itself and increases at the edges of the HCD. The HCD Study recommended a 16 m height limit for the subject property for approximately half of the lot, then transitioning to a 50 m height at the rear of the property, which is at the southern edge of the HCD. The recommended heights have not been implemented exactly. However, the zoning requirement in Schedule 74 for an angular plane provides an appropriate transition from the lower profile of York Street to the higher profile to the south, just outside of the HCD.
84By section 3.4 of the Study, new commercial and mixed-use buildings or additions are to be compatible with the character of the HCD. The scale and character of existing heritage properties should be respected. As well, setbacks and heights should respect adjacent heritage properties in the streetscape. Wide access ramps should not be used, as they disrupt the continuity of the streetscape. These guidelines are complemented by the UDGHRB, whereby a high-rise building, including its placement and design, must respect and complement the scale, character, form and setting of adjacent heritage properties. Guideline 1.23 requires respect for the character of adjacent heritage buildings by integrating high-quality, contemporary design cues, particularly at the base of the building.
85She concluded that the proposed transition from 11 m at the first two storeys to 59.6 m at the third storey does not provide appropriate transition to the mid- and low-rise scale of the heritage resources on York Street. The ground floor, including a 10.7 m recessed entranceway to both the hotel and parking garage interrupts the typical streetscape in the BMHCD. Thus, in her opinion, the subject property cannot accommodate a high-rise building while providing the required transition and compatibility with the York Street streetscape and the HCD.
86She also found failure to comply with the heritage provisions of the Lowertown Character Area in section 1.8 of the Central Area Secondary Plan. The proposed Zoning By-law amendment does not meet the heritage provisions of the Character Area. As mentioned, it is not sensitive to the heritage character of York Street. The proposal is out of scale and character with the surrounding heritage resources, does not provide appropriate transition from the low scale of York Street to the intended higher building heights to the south. It will result in additional shadow impacts on the historic streetscape.
87Other issues Ms. Collins sees are lack of appropriate transition from the 11 m portion of the base to a 59.6 m tower, set only 6 m from York Street, and design of the ground floor façade. The latter reflects neither the traditional commercial nor residential rhythm of the BMHCD. In order to minimize impact on the character of the streetscape, and to allow the heritage buildings to retain their dominant presence in the streetscape, a gradual transition in height is required. A building that complies with the required angular plane would likely result in one more compatible in terms of height and massing with the streetscape and the HCD.
88The proposed articulation does not reflect either the residential character of the north side of York Street or the adjacent Major building. While the brick cladding of floors 3-5 of the front façade echoes the cornice line of Major, the façade for floors 1-2 includes “an irregular horizontal expression” and a wide garage entrance at grade. These would not retain the character of the buildings or streetscape of York Street.
89Ms. Collins reasoned that since York Street is identified in both the OP and the BMHCD Study as a significant and distinctive street as an entrance to the core of the Market, the green boulevard is a significant public green space in the HCD. The proposal having little street presence or animation at grade, will not contribute to the heritage qualities of York Street.
DECISION
90This application does not require an amendment to any applicable Official Plan documents, despite the City’s witnesses addressing their intent and wording extensively. The City eventually appeared to concede that the OP policies in force when the application was made were the appropriate ones to consider. (Submissions, para. 94). Thus, the Tribunal is relieved of the necessity of considering the applicability of the Clergy principle in this matter.
91Respecting the urban design evidence from both the Appellant and the City, the recent Tribunal decision in 505 Beechwood Inc. et al. v. Waterloo (City), 2021 CarswellOnt 11129, stated the following:
[122] The Tribunal discerns that the City in its Official Plan policies has placed a high priority on urban design, as the City knows that its growth is going to come through intensification and thus the urban design policies are vital to make sure that the new growth supports a memorable, attractive and liveable city with compact development at a human scale level and with building design that compliments and enhances the surrounding neighbourhood character and context.
92While the Tribunal does not object in principle to the design of the hotel here, it finds that it constitutes overbuilding for the site as well as its surrounding “neighbourhood character and context”. For example, if it had had greater side and/or rear yard setbacks, or a lesser height than the Andaz, allowing for closer adherence to the zoning standards in these respects, it would be a better “fit” with the surrounding context. There would be fewer hotel rooms as a result, no doubt, but there would be greater acknowledgement of the site surroundings.
93The City objected to the proposed height, although very close to that of the existing Andaz Hotel. It offered much evidence on interruption of protected views to and from the ByWard Market and its surroundings, and to the Parliamentary precinct. The Tribunal found this evidence unconvincing, as it appeared to be very minimal interference with the protected view site lines (Annex 8A of the OP - Exhibit 1A, Tab 4) in the photos tendered by Mr. Dror (Exhibit 3). As Mr. Saplys stated, the stepback of the tower beyond the podium would have a more pedestrian-friendly feel than the “straight up” Andaz.
94The Tribunal recognizes the efforts made by the Appellant to attempt to comply with many other policies and standards – the architectural match of the base and lower tower floors with the Major building, the location of the base and the tower to the rear, for example. It does not find evident non-compliance, as the City does, with the proposed frontage design. The actual garage and parking entrance, as well as the servicing are to the rear and internal to the building. Nor do the entrance doors and glass frontage of the café appear to be serious contraventions of the applicable zoning standards or guidelines. There are many more double driveways on York Street, from the evidence of the Appellant’s witnesses.
Heritage Issues
95The heritage issues dominated this hearing. The Appellant argued, in essence, that there is no requirement for a Heritage Permit for this proposed development.
Is a Heritage Permit Required?
96As discussed, the ByWard Market Heritage Conservation District or BMHCD was designated in 1991 by By-law No. 60-91 under Part V of the OHA. At that time, the OHA allowed the City to designate following a “Study”, rather than by a more formal designation following a HCD “Plan”.
97The requisite Study was completed in 1990. One factor here was the encouragement to redevelop vacant lots, using the Design Guidelines. However, development was to be low-scale and reasonably dense, with heights that addressed adjacent heritage properties (subsections 4.6 and 4.3.2). The OHA provided at that time in essence that change to any “structure” would require a permit prior to approval.
98In 2005 the OHA was amended to provide that an existing Study could be “upgraded” to a Heritage Conservation District Plan, having legal effect and binding owners subject to it. Section 41.1 of the amendment required a permit for any alteration or development of a “property” within the HCD, rather than just to a structure as before. However, this “upgrade” to a Plan was not carried out for this BMHCD. Thus, the Appellant argued that the BMHCD has no force and effect on this property or those surrounding it, such that a permit is required.
99The Tribunal in its earlier decision of Statler v Ottawa (City) 2017 CanLII 80952 (ON LPAT) (“Statler”) had clarified the method for the creation of an HCD under the two versions of the OHA. The Tribunal sets sections of this decision out here, as it is still relevant for this Appeal:
[29] With respect to the City’s position that prior to the granting of the applications, a Heritage Permit must be granted for the subject property and that the Village area has been designated a Heritage Conservation District (“HCD”) by the former Village, it is clear based on the evidence before the Board that neither the old HCDP nor the new HCDP apply to the subject property in a manner that would prevent the requested consents or variances.
[30] The new HCDP adopted by the City is currently under appeal at this Board, and is not in force pursuant to section 41(10) of the OHA (quote omitted)….
[35] It must be noted that HCDPs were not mentioned in the pre-2005 OHA and that the amendments in 2005 granted legal status to pre 2005 HCDPs, but only if these met the requirements of the Act. The 2005 amendments required that an HCD be coupled with an HCDP but required that a stringent public consultation process and content requirement be followed before adopting an HCDP. The evidence before the Board is that the old HCDP did not meet the content or consultation requirements. It does not differentiate between alterations that require City approval and those that do not. (emphasis added)
[36] Section 41.1 of the OHA seems to suggest that the statute requires by-laws adopting HCDPs for all HCDs, whether those are designated before or after 2005.
[37] Counsel for the Appellant referred to the Board’s decision in Proud Port Dalhousie, Re 2009 CarswellOnt 1096, which addressed the issue related to HCDPs that are not enacted in accordance with the procedures laid out in the OHA and which lack the “elevated status” and legal enforceability of those that are. (emphasis added)
[38] The Board found that the process for adopting a pre-2005 district plan is not a mere technical procedure. While the preservation of built heritage is vitally important in the Province of Ontario and the new Act , allows for district designation and the adoption of a district plan, which can result in the loss of property rights, the process referred to above affords substantive rights to owners of property in a HCD. The loss of rights has been found to be justifiable as the preservation of built heritage is important in the Province of Ontario but can only be justified after a transparent public process has taken place. Section 41.1 guarantees such a process. If a designated HCD is to be subject to a district plan which requires by-law consistency and in fact makes a district plan determinative, the required fair public process must be followed. (emphasis added).
[39] The evidence is clear that the old HCDP did not have any legal status and that there is no requirement for a Heritage Permit under the existing OHA unless it arises under a HCDP passed in accordance with the OHA as it is presently constituted. (emphasis added)
100In paragraph 44 of the Decision, the Tribunal found that the amended OHA includes any addition to “any part of the property”, and not just to a structure as before. Therefore, is a heritage permit required here?
101The City argued however that this decision did not mean that if such an upgrade By-law is not passed, previous permits were invalid. In the Tribunal’s view, because the City has not upgraded the BMHCD “Study” to a “Plan” under the OHA section 41.1, the only effect for this application is that a Cultural Heritage Impact Statement or CHIS was required. There is no clear requirement for a Heritage Permit prior to approval of this proposal, based on the Statler decision. In fact, as stated in para. 44 of the Decision, the effect is that no application for a Permit is required for construction on a vacant parcel unless Council has adopted a Heritage Plan under the OHA. The Tribunal sees no difference between this application and the Statler facts, as Mr. Marc had argued.
102The City had enacted such by-laws for other HCDs in the City, the City’s witness Ms. Collins admitted in cross-examination. They were thus “upgraded” into HCD Plans. The City has adopted “District Guidelines” for evaluating applications. However, no permit appears to be required under the OHA for the proposed construction here.
103The Tribunal agrees with the Appellant’s witnesses and counsel in argument that the BMHCD background Study focused on only the core blocks of the ByWard Market. The Market’s eastern edge is Dalhousie Street, to the west of this site. While the resulting HCD (Exhibit 1B, Tab 20) does indeed apply to the subject block of York Street east of Dalhousie Street, it appears to have continuing heritage meaning only when applied to the structures on the north side of the street at present.
104The district’s boundary lies just to the east of the commencement of the boulevard on York Street, or about one-half block east of Dalhousie Street. The only existing heritage structure on the south side is the five-storey Major building. At the time this HCD was designated, the south block of York Street consisted of two vacant lots, the high-rise Union du Canada building (site of the present Andaz), and the Major building to the east. This is the only structure now contributing to the heritage district designation.
105This is the unhappy result of the City approving the Andaz to be built where it is, and in its current high-rise form. The Ontario Municipal Board found on appeal that the Andaz had made essentially no efforts to conform to the heritage character of the BMHCD. This Panel considers the present proposal to be quite similar to the Andaz, which the City had approved and supported on appeal. The Union du Canada building was a protected heritage structure. The Tribunal agrees with the Appellant’s surmise that it is likely that the boundaries of the BMHCD were drawn to the east of the subject site only to ensure that the Major building was included within it. The boundary of the BMHCD is about one-half or one property just to the east of the Major structure (Exhibit 1B, p. 8). Even less of the north side of York Street is included within it. There was little else left of heritage value on the south side of York Street there, according to the evidence of Ms. Harris. What is now proposed appears to the Tribunal to be a good attempt to accommodate and continue the architectural design of the Major building beyond.
106Ms. Baldwin for the City pointed out that adjacent properties to the south of the subject site are located outside of the BMHCD, as are 134 and 135 York Street (north and south of the subject site). These should not be used as a precedent for the requested height.
107The Tribunal closely considered all of the issues raised by the neighbourhood following this application to Council, as set out in Ms. Baldwin’s testimony: height and lack of angular plane, impacts on heritage, impacts on the surrounding Lowertown/ByWard market neighbourhood, shadowing and access to light, cumulative impact of multiple high-rise proposals, views, impacts on future hotel users, traffic, loading, building design and proximity to other hotels. Almost all of these issues were raised in the hearing by the City’s witnesses.
108The applicable planning policies have created a confusing pastiche of regulations for this site, making evaluation of this proposal more difficult. Even the Central Area Secondary Plan had placed this parcel in the Lowertown Character Area. While it is clearly within the BMHCD, there are overlapping boundaries and policy regimes for this and the ByWard Market Character Area. As Mr. Dror testified, the core of the ByWard Market is characterized by low-rise development, while the southern portion of Lowertown, which includes this site, contains many high-rise developments built or approved over the last 20 years. (The Tribunal notes in passing that the heading of “Lowertown” was most likely a geographical one as the Appellant argued, since “Uppertown” is located far to the west, beyond the Centre Block.).
109The Central Area Secondary Policy Plan (Exhibit 1A, Tab 6), while acknowledging development should be mostly low profile in this Character Area, stated: ”Some attractive medium to higher profile buildings will develop within the southern part of Lowertown, between the south side of York Street (emphasis added) and Rideau Street, and along its eastern edge. This will create a transition to the high-profile commercial node envisioned at the east end of Rideau Street…”. It is not clear then if the south streetscape of York Street itself is intended to be available for “higher profile buildings”. Since the significantly tall Andaz was approved here by the City, the Tribunal will conclude that this was could have been the City’s intended meaning. However, this provision in the Secondary Plan must be considered with the overarching OP provisions.
110The City objected to a high-rise on this site from the urban design perspective. It does fall short of the Guidelines for High Rise Buildings (Exhibit 1A, Tab 9):
a. in minimum lot size (1,800 sq m versus 1,015.5 sq m);
b. in its share (11.5 m) of any tower separation, leaving the “burden” (20 m – 23 m) to be met by adjoining properties; and
c. in a larger floorplate than residential.
111The Tribunal rejects this last objection as it clearly is not a residence that is being considered.
112However, the question of the “fit” of this proposed structure within the HCD remains. The City termed the height of the “Andaz ByWard Market Hotel” an “historical anomaly” within an “otherwise low-profile heritage character area” (Tab 16-staff report September 21, 2018 by Ms. Baldwin to the Appellant). It warned that the Andaz was not to be used as a precedent for increased height. Yet it found the Andaz development to be appropriate and compatible intensification. The Tribunal finds that the City’s warning about height to be inappropriate in the context. The Andaz development was not only quite recent, but the City supported that owner’s appeal to the Tribunal. It is true that the Andaz replaced a high-rise historical structure on the site. However, its new built form cannot be just an “anomaly”, since it is not only higher than the previous structure, but also it received the City’s support on appeal. The proposed Hilton would have a similar but somewhat more compliant built form, although the height and lack of setbacks appear excessive. The application for expansion of the Andaz site to the west of the subject site does not appear to be proceeding. The Appellant’s proposal can only be assessed in light of the in-force policies and existing or approved surroundings.
113The Tribunal will have to disagree with Mr. Dror’s testimony and opinion that the proposal achieves an appropriate balance and reconciliation among all the applicable planning objectives. In pre-application meetings the City staff had expressed concerns about the height and scale of the building, its relationship to the Andaz Hotel and to the street, including the width of the driveway entrance. Of special concern was how the building will fit with BMHCD. The City’s UDRP then recommended reductions to its height and scale, an increased podium height from one to two storeys (with a terrace above), revisions to better relate to the architectural features of the warehouse building to the east, and to existing development on the north side of York Street. Many of these alterations were adopted in the final design.
114On the positive side, then, it is clear that the proposal has been designed to echo some of the heritage characteristics of the BMHCD, notwithstanding that it is located on its periphery. The first six levels, as described in Ms. Harris’ 2018 CHIS (Exhibit 1B, Tab 20, p. 15), do create a harmonious blend with the Major building next door. It would infill an empty lot and have the same setback beyond the podium level as the three buildings within the district on that block. It is a quite successful attempt to have the proposal “fit” within the surrounding historical structures.
115However, it is not possible to ignore the proposed height, and lack of setbacks. As well, despite the expert opinions that division of the front façade into three parts would animate the street, the garage entrance appears to interfere with the policy in favour of a pedestrian-oriented streetscape.
116The Tribunal notes the seemingly inconsistent approach the City appears to have taken respecting the recent increase in high rise structures in the area. This is true especially to the south and east of the Market area. The applicable OP policies appear to conflict here. The City’s position is that that the BMHCD and OP design polices should govern this immediate area. However, just outside the District are many tall structures, most without the bonus feature of contributing to the tourist amenities for the Market area. The streetscape in the “core” market area between Sussex Drive and Dalhousie Street is continuously low-rise over several blocks. The Tribunal agrees with the Appellant that the lower heights in the western part of the BMHCD, or even those on the north side of York but across a wide boulevard, should carry less weight in determining the appropriate height for a structure on a vacant lot about 20 m from a new 17- or 19-storey building. The height of the proposed building would be exceeded by the approved development to the south at 137-141 George Street, at 22 storeys, just outside the BMHCD. This appears to vitiate the By-law requirement for an angular plane on the subject lot.
The Heritage Overlay
117The Appellant argued that the Heritage Overlay in the Zoning By-law was improper retroactive legislation. The Tribunal does not have to decide this issue, as the parties have agreed that it would not be applied. The Agreed Statement of Facts (Exhibit 14) indicates that the City would not press to have the former 2½-storey structure reproduced, as it would be if the Overlay were applied.
PPS and the Official Plan
118The Tribunal agrees in general with the submission of the Appellant’s counsel:
The proposed development will not replace any buildings or open spaces that housed businesses or services critical to the market’s historical or present role, but will simply fill in a vacant lot. York Street, as a cultural landscape embedded within the BMHCD, will retain its width and boulevard form.
119The Appellant as well argued from the heritage evidence that the proposal adequately addresses the heritage concerns in Policy 4.6.1.9 of the OP for applications for zoning amendments in a heritage conservation district. The most relevant criteria include:
a. Respecting the massing, profile and character adjacent to or across the street;
b. Approximating the width of nearby heritage;
c. Approximating the established setback pattern on the street;
d. Being physically oriented to the street in a similar fashion to existing heritage buildings;
e. Minimizing shadowing on adjacent heritage properties, particularly on landscaped open spaces and outdoor amenity areas; and
f. Ensuring that parking facilities … are compatibly integrated into heritage areas.
120The Tribunal finds these to have been met in the main, except for respecting the height transitions in the District. Nonetheless it must refuse the requested amendments because of the proposed height and the lack of adequate setbacks. The site is too small to accommodate this proposal as presented.
ORDER
121The Tribunal Orders that the appeal for amendments to By-law No. 2008-250 of the City of Ottawa is dismissed.
“G. Burton”
G. BURTON VICE CHAIR
“D.S. Colbourne”
D.S. COLBOURNE 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.
