Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 15, 2022

CASE NO(S).: OLT-22-003625

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

Applicant/Appellant: David, Paul & Karen Casey

Subject: Consent – Conditions of provisional consent

Description: To Subdivide their property into two separate parcels of land in order to create separate ownerships for each half of the existing three-storey semi-detached dwelling.

Reference Number: D08-02-22/B-00439

Property Address: 360, 360B & 362, 362B First Avenue

Municipality/UT: City of Ottawa

OLT Case No: OLT-22-003625

OLT Lead Case No: OLT-22-003625

OLT Case Name: David, Paul & Karen Casey v. Ottawa (City)

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

Subject: Consent – Conditions of provisional consent

Description: To Subdivide their property into two separate parcels of land in order to create separate ownerships for each half of the existing three-storey semi-detached dwelling.

Reference Number: D08-01-21/B-00506

Property Address: 360, 360B & 362, 362B First Avenue

Municipality/UT: City of Ottawa

OLT Case No: OLT-22-003626

OLT Lead Case No: OLT-22-003625

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

Subject: Minor Variance

Description: To Subdivide their property into two separate parcels of land in order to create separate ownerships for each half of the existing three-storey semi-detached dwelling.

Reference Number: D08-02-22/A-00032

Property Address: 360, 360B & 362, 362B First Avenue

Municipality/UT: City of Ottawa

OLT Case No: OLT-22-003627

OLT Lead Case No: OLT-22-003625

Heard: October 11, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
David Casey, Paul Casey and Karen Casey	K. Libman and U. Melinz

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by David, Paul and Karen Casey (“Applicants”/“Appellants”) against the decision of the City of Ottawa Committee of Adjustment (“COA”) to deny a Minor Variance (“MV”), where a concurrent request for Consent was granted for a property municipally known as 360, 360B, 362 and 362B First Avenue (“subject property”/“subject lands”).

2The subject property is located in the Glebe neighbourhood of the City of Ottawa (“City”).

3The subject property has 15.24 metres (“m”) of street frontage on First Avenue and a lot area of 478 square metres (“m2”) and is developed with a building consisting of two semi-detached dwelling units, each of which has a secondary dwelling unit located in the basement, for a total of four units.

4The subject property is designated General Urban Area under the Official Plan (2003 consolidation) and is surrounded by a mix of detached and semi-detached dwellings, ranging from one- to three-storey in height.

5The subject lands are zoned R3L (Residential Third Density Zone, Subzone L).

6The City advised the Tribunal that it would not be participating in the hearing, and no other Party or Participant Status Requests were filed with the Tribunal prior to the hearing.

BACKGROUND TO THE APPLICATION

7The Appellants purchased a single detached dwelling at 362 First Avenue, in the Fall of 2020. After the purchase, the Appellants have submitted the application to demolish the existing dwelling and to construct a semi-detached dwelling, each with a secondary dwelling unit, creating a total of four new dwelling units.

8The subject property has two City owned trees in front of it. The City Forestry staff has advised the Applicants that the City would like for the trees to remain and a permit to remove the City owned trees would be unlikely granted.

9The semi-detached dwelling was constructed in accordance with the City issued building permits and occupancy permits, which were issued in November 2021 and in December 2021 for 362, 362B and for 360 and 360B, respectively.

10In December of 2021, the Appellants submitted a Consent application to create two new lots in order to create a separate ownership between Mr. D. Casey at 362 and 362B First Avenue and his brother’s family Mr. P. Casey and Ms. Casey at 360 and 360B First Avenue.

THE DEVELOPMENT

11A parking is not required for a semi-detached dwelling, or a secondary dwelling unit located within the Urban Area. The original Building Permit application indicated the driveway for 362 First Avenue only. In order to avoid a removal of the City’s tree, a temporary curved driveway was built to facilitate the construction of 360 First Avenue.

12Upon completion of the dwelling at 360 First Avenue, the Appellants decided to keep the driveway. During the review of the Consent to Sever application, City’s Planning, Real Estate and Economic Development Department (“PRED”) has indicated that a relief from the Zoning By-law No. 2008-250 (“ZBL”) was required in order for the Applicants to keep the driveway.

13On February 2, 2022, the COA adjourned the Consent to sever application at the request of PRED to allow the Applicants to submit a MV application.

14On February 7, 2022, the Appellants submitted a MV application requesting a relief from the ZBL to permit a curved driveway to be located between the building’s front wall and the street.

15The Applicants has submitted a Tree Information Report (“TIR”) by Dendron Forestry Services, in support of the MV application. The City’s Planning Staff had no issues with a MV application, since the development allowed for a City owned tree to remain.

16At the hearing, the COA had provisionally approved the application for Consent, however reserved and then refused the application for a MV.

THE ISSUE AND LEGISLATIVE FRAMEWORK

17The issue before the Tribunal is whether the Consent to sever the application meets the general requirements set out in the applicable Provincial Planning legislation, Municipal planning policies and the specific criteria of the Planning Act (“Act”) and if it represents good planning. The proposed severance must meet the requirements of the applicable policies of the applicable Official Plans (“OP”) and ZBL.

18The Tribunal shall also have regard to matters of Provincial interest.

19An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) has been satisfied:

1. The intent and purpose of the Official Plan is being maintained;
2. The intent and purpose of the Zoning By-law is being maintained;
3. Is desirable for the appropriate development or use of the land, building or structure; and,
4. Is minor.

20In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Planning Act, and the decision of the approval authority under s. 2.1 of the Act.

EVIDENCE

21The first witness to provide expert opinion testimony was Astrid Nielsen. The Tribunal reviewed Ms. Nielsen’s professional qualifications, confirmed her Acknowledgment of Expert’s Duty, included in her witness statement (Exhibit 5), and qualified Ms. Nielsen to provide expert opinion evidence in the area of Urban Forestry.

22Ms. Nielsen explained that there were two mature City owned trees (“Tree No. 1” and “Tree No. 2”) located on the subject site. The location of one of the trees has prevented the Applicant from constructing a driveway in the straight line. Therefore, the driveway was constructed in a manner that would allow for the tree to be retained.

23Ms. Nielsen has conducted multiple site visits from March of 2021 to September of 2022. During her visits, Ms. Nielsen has observed that the construction of the driveway had no impact on the tree health. She stated that the driveway construction was done in a proper manner, the soil close to the tree trunk has been left intact and no soil compaction has occurred. Ms. Nielsen is of the opinion that the use of the permeable materials for the construction of the driveway would have a positive impact on the tree health, as it would allow for water penetration of the soil in the critical root zone and for the oxygen to reach the roots.

24Lisa Dalla Rosa is a Registered Professional Planner who appeared on behalf of the Applicants. After review of Ms. Dalla Rosa’s professional qualifications, her Curriculum Vitae and confirmation of her Acknowledgment of Expert’s Duty, the Tribunal qualified Ms. Dalla Rosa to provide expert opinion testimony in the field of land use planning.

25Ms. Dalla Rosa explained that the Consent was conditionally approved by the COA and that the Consent approval is also under appeal, due to the condition tying it to the MV approval.

26During her expert witness testimony, Ms. Dalla Rosa explained that the four-block area surrounding the subject site, has several different configurations of the driveways, and are visible in the aerial photo of the Laneway pattern (Exhibit 2, Tab 7). Ms. Dalla Rosa noted that the four-block area surrounding the Appellants’ property already has driveways that are located in front of the dwellings, as can be seen in photographs. More specifically: 332 First Avenue, 332 Second Avenue, 348 First Avenue and others (Exhibit 2, Tab 5).

27Ms. Dalla Rosa has reviewed the applicable Provincial Planning legislation and the Act. Section 2 (j) of the Act supports the development of affordable housing. She stated that s. 51(24), s. 53(1) and s. 53(12) of the Act outline the criteria for the Consent.

28Ms. Dalla Rosa opined that the application is consistent with the Provincial Policy Statement 2020 (“PPS”), as it would lead to the intensification of built-up areas and will protect the financial and economic well-being of the Province of Ontario and the City by optimizing existing public service facilities, and public service needs, specifically transit.

29Ms. Dalla Rosa confirmed that she reviewed the relevant policies and concluded that the use of the subject property conforms to the City OP. The General Urban Area designation permits a range of housing choices in a manner that enhances the character of the existing community. Thus, the intent and purpose of the OP is being maintained.

30Ms. Dalla Rosa is of the opinion that the intent and purpose of the Zoning By-law is being maintained, since the MV is in response to a unique site-specific condition and does not seek relief for use or built form and is due to the intent of protecting the City owned tree. Further, the Appellant has made a revision to the driveway near the tree. His intent is to use a permeable rubber/plastic grid for the upper surface layer within the critical root zone of the tree, in order to allow for more water and oxygen to reach the roots, compared to an impermeable surface, such as asphalt.

31In Ms. Dalla Rosa’s opinion, the proposed development is desirable, as it would not change the proposed use of the land, nor does it relate to the building form of the subject property.

32Lastly, Ms. Dalla Rosa pointed out that the variance is minor, due to the portion close to the street having a permeable surface that would be less noticeable than the asphalt and would reduce stormwater runoff.

33Overall, it is Ms. Dalla Rosa’s professional opinion that the variances maintain the general intent of the OP and the ZBL. The variances are minor in nature and will not adversely impact the Appellants’ property.

ANALYSIS AND FINDINGS

34Based on a thorough review of the evidence, the Planning Staff recommendations and in consideration of the uncontroverted evidence in urban forestry, land use planning and opinions of Ms. Nielsen and Ms. Dalla Rosa, the Tribunal finds that the requested variances meet the four tests established in s. 45(1) of the Act.

35The general intent and purpose of the City OP and ZBL is being appropriately maintained, and the variances are minor in nature and do not result in the creation of unacceptable adverse impacts.

CONCLUSION

36The Tribunal finds that the variance satisfies the four tests of s. 45(1) of the Act, have regard to the matters of the provincial interests set out in s. 2, is consistent with the City OP, ZBL and is representative of good planning; the Consent to sever application is consistent with the policies of the PPS, conforms to the OP, meets the requirements of the ZBL, represents good planning and is in the public interest.

ORDER

37THE TRIBUNAL ORDERS that the appeals are allowed, the variance to Zoning By-law No. 2008-250 is authorized, and the provisional consent is to be given subject to the following conditions:

1. That the Owner(s) provide evidence to the satisfaction of the Chief Building Official, or his/her designate, that the party wall meets the Ontario Building Code, O Reg. 332/12 as amended, which requires a one-hour fire separation from the basement through to the underside of the roof. Verification from the Building Inspector is required. If necessary, a building permit shall be obtained from Building Code Services for any required alterations.

2. That the Owner(s) provide evidence (servicing plan), to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Real Estate and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that both the severed and retained parcels have their own independent water, sanitary and sewer connection, as appropriate, and that these services do not cross the proposed severance line and are connected directly to City’s infrastructure. If they do cross the proposed severance line, or they are not independent, the Owner(s) will be required to relocate or construct new services from the city sewers and/or watermain at his/her own costs.

3. That the Owner(s) enter into an Agreement with the City, through a Letter of Undertaking, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the relevant Branch within Planning, Real Estate and Economic Development Department, or his/her designate to address the following:

a) The Owner(s) agree to provide securities for a period of two years following the completion of construction, which is equivalent to the value of the trees to be protected (Trees No. 1 and No. 2). The Owner(s) agree that the security shall be returned to the owner only upon the City having received a report from an arborist or an appropriate professional confirming for both Trees No. 1 and No. 2, that they are in good health and condition, and remain structurally stable. The Owner(s) acknowledge and agree that if, in the opinion of the City Forester and/or the Development Review Manager of the relevant Branch within Planning, Real Estate and Economic Development Department, or his/her designate, the report indicates that either or both trees No. 1 or No. 2 are declining and must be removed, the Security for that tree, will be forfeited, and the tree will be replaced at the expense of the owner.

4. That the Owner(s) enter into a Joint Use, Maintenance and Common, at the expense of the Owner(s), setting forth the obligations between the Owner(s) and the proposed future owners.

The Joint Use, Maintenance and Common Elements Agreement shall set forth the joint use and maintenance of all common elements including, but not limited to, the common storm sewer laterals, common party walls, common structural elements such as roof, footings, soffits, foundations, common areas, common driveways and common landscaping.

The Owner shall ensure that the Agreement is binding upon all the unit owners and successors in title and shall be to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Real Estate and Economic Development Department, or his/her designate, and City Legal Services. The Committee requires written confirmation that the Agreement is satisfactory to the Development Review Manager of the relevant Branch within the Planning, Real Estate and Economic Development Department, or his/her designate, and is satisfactory to City Legal Services as well as a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.

5. That the Owner(s) file with the Committee a copy of the registered Reference Plan prepared by an Ontario Land Surveyor registered in the Province of Ontario, and signed by the Registrar, confirming the frontage and area of the severed land. If the Registered Plan does not indicate the lot area, a letter from the Surveyor confirming the area is required. The Registered Reference Plan must conform substantially to the Draft Reference Plan filed with the Application for Consent.

6. That upon completion of the above conditions, and within the two-year period outlined above, the Owner(s) file with the Committee, the “electronic registration in preparation documents” for a Conveyance for which the Consent is required.

38The Consent lapses two years from the date of this Decision.

“P. Tomilin”

P. Tomilin

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.