Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 15, 2022
CASE NO(S).:
OLT-21-001495
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
Louis Yam & Linh Man Ho
Subject:
Minor Variance
Property Address/Description:
357 Dominion Avenue
Variance from By-law:
2008-250
Municipality:
City of Ottawa
Municipal File No.:
D08-02-21/A-00220
OLT Lead Case No.:
OLT-21-001495
OLT Case No.:
OLT-21-001495
OLT Case Name:
Ho v. Ottawa (City)
Heard:
February 10, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Louis Yam and Linh Man Ho
Jacob Polowin
City of Ottawa
No one appeared
MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON FEBRUARY 10, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The subject property, municipally known as 357 Dominion Avenue in the City of Ottawa (“City”), presently contains a single-storey single detached dwelling.
2Louis Yam and Linh Man Ho (the “Appellants”) propose to demolish the existing dwelling and construct a triplex dwelling on the subject property.
3In support of this intention, the Appellants applied to the City’s Committee of Adjustment (“COA”) for a minor variance from the City’s Zoning By-law No. 2008-250 to permit a reduced lot area of 273.3 square metres (“sq m”) whereas a minimum lot area of 360 metres (“m”) is required.
4The Applicants’ Planning Consultant, Novatech, provided a justification letter-report in support of the Minor Variance, which concluded that the “four tests” were met as outlined in s. 45(1) of the Planning Act.
5The City’s Planning Report, which was provided to the COA at the September 15, 2021 meeting, concluded that staff had no concerns with the proposal.
6At the COA meeting of September 15, 2021, although the report from planning staff as noted above stated there were no concerns with the proposal, the COA found that insufficient evidence was presented demonstrating that the proposal would be compatible within the surrounding lot fabric, and the application was subsequently denied by the Committee.
City of Ottawa Staff Report
7In advance of the September 15, 2021 COA hearing date, City staff filed a memorandum dated September 9, 2021 in which the Planning, Infrastructure and Economic Development Department commented that there were no concerns with the proposed application and requested variance.
8The report went on to state that the Official Plan provides policies for intensification in the General Urban Area that permit a range of housing choices in a manner that enhances the character of the existing community. The three-unit dwelling is a permitted use in R3S and an appropriate form of ground-oriented housing and intensification. Despite the significant relief for the lot area requested, the proposed development meets the performance standards for lot width, front yard setback, front yard landscaping, interior side yard setbacks, rear yard setback, and rear yard area. The projections (canopy, porch and open stairs in the front, open stairs in the rear, and open stairs in the northern interior side yard) meet the requirements of the Zoning By-law.
9Staff concluded that the requested variance does not affect the functionality of the site. Upon review, staff had no concerns with the application and considered the development an appropriate use of the property.
The Hearing
10The City of Ottawa was not represented at the Hearing.
11The Appellant called one witness, Murray Chown, who was qualified as an Expert in Land Use Planning. He is a Registered Professional Planner and a Full Member of the Canadian Institute of Planners and has more than thirty-five (35) years of experience. Masha Wakula, the author of the City’s staff report, was summonsed by the Appellant as a witness and attended the Hearing to answer any questions, if required.
Area Context
12Mr. Chown provided the Tribunal with a comprehensive overview of the neighbourhood context, including a photo summary along Dominion Avenue.
13The subject property is located in the Kitchissippi ward of the City of Ottawa on the east side of Dominion Avenue. To the north of the subject property is the Transitway. To the east of the subject property is a block of low-rise residential buildings with frontage on Berkley Avenue.
14To the south of the subject property are low-rise residential developments with frontage on Tay Street and to the west is a 14-storey, 85-unit high-rise apartment building at 370 Dominion Avenue.
15The subject property has 13.1 m of frontage on Dominion Avenue and an area of approximately 273.3 sq m.
16The subject property is zoned Residential Third Density Subzone S (R3S) under the City’s Zoning By-law No. 2008-250. It is in close proximity to the existing Dominion Bus Rapid Transit Station, and the planned Kichi Sibi Light Rail Transit Station as well as being in close proximity to the amenities along Richmond Road, a designated Traditional Mainstreet.
The Four Tests
17As per s. 45(1) of the Planning Act, the four tests must be considered when evaluating a minor variance application. The four tests are as follows:
Does the application meet the general intent and purpose of the Official Plan?
Does the application meet the general intent and purpose of the Zoning By-Law?
Is the requested variance minor in nature?
Is the requested variance desirable for the appropriate development or use of the land, building or structure?
18In addition to the “four tests” of s. 45(1) of the Planning Act, the proposed variance must be consistent with the Provincial Policy Statement (“PPS”).
Does the application meet the general intent and purpose of the Official Plan?
19Mr. Chown stated that the subject property is designated General Urban Area (“GUA”) on Schedule B of the City’s OP. The purpose of this designation is to permit the “development of a full range and choice of housing types to meet the needs of all ages, incomes and life circumstances”.
20Mr. Chown provided the Tribunal with a thorough review of the relevant policies contained within the OP, emphasizing that the policies encourage residential infill and intensification.
21Principally, Mr. Chown underscored that the OP encourages and supports infill development and other intensification within the GUA that enhances and complements the desirable characteristics and ensures the long-term vitality of existing communities.
22Mr. Chown opined that the proposal is a good example of appropriate infill and intensification in the urban area, as envisioned by the OP, as it is transit supportive and provides for an opportunity of rental housing. He further opined that the proposal is consistent with the existing character of the community and neighbourhood.
23In the opinion of Mr. Chown, the proposed minor variance maintains the general intent and purpose of the Official Plan.
Does the application meet the general intent and purpose of the Zoning By-Law?
24The subject property is zoned R3S under the City of Ottawa’s Zoning By-law No. 2008-250. Mr. Chown opined that the purpose of the By-law is to allow for a mix of residential building forms, provide additional housing choices and regulate development in a manner that is compatible with existing land use patterns.
25Mr. Chown stated that a triplex building is currently a permitted use under the current R3S Zoning.
26Mr. Chown also provided the Tribunal with evidence that the proposal meets the performance standards for lot width, height, front yard setback, front yard landscaping, interior side yard setback, rear yard setback, and rear yard area.
27Mr. Chown re-iterated that the only variance being sought is a reduction in the minimum required lot area, to ensure that there is adequate room on the property to accommodate a liveable triplex, and to ensure the lot has adequate amenities. He opined that the reduction in lot area is unperceivable from the street and will have no impact on the streetscape, or the functionality of the site.
28Mr. Chown concluded that, in his opinion, the proposed minor variance meets the general intent and purpose of the Zoning By-law No. 2008-250.
Is the requested variance minor in nature?
29Mr. Chown displayed a map of the neighbourhood high-lighting average block depths in the general area. The block depth between Dominion Avenue and Berkley Avenue is only 41.3 m, as compared to block depths of 58 to 60 m elsewhere.
30He opined but the requested variance for a reduced lot area is required due to the shallow depth of the lot. The subject property has a lot depth of 20.8 m. If the subject property had the standard lot depth of 30 m, the lot area would be approximately 393 sq m and thus would not require a variance.
31He noted earlier that the depth of the lot and the area of the lot are unperceivable from the street.
32Mr. Chown concluded that the requested variance, in his opinion, is minor in nature
Is the requested variance desirable for the appropriate development or use of the land, building or structure?
33Mr. Chown opined that the proposed development supports intensification, while having regard for existing uses, built form and lot fabric of the neighborhood.
34He further opined that intensification is further supported by the availability of transit services in the surrounding area. The subject property is located approximately 95 m from the existing Dominion Transit Station and 88 m from a future Kichi Sibi Light Rail Transit Station.
35The Planning Justification Report stated that the subject property is located within walking distance to Churchill Public School, Blythe Academy and Westboro Montessori School. The report also stated that the subject site was in proximity to Rochester Field, Lion’s Park and Westboro Beach.
36The subject property is a three-minute walk from existing shops and restaurants along Richmond Road, which is a designated Traditional Mainstreet in the City’s OP.
37Based on the above, Mr. Chown opined that the minor variance is considered desirable for the use of the land.
38Overall, Mr. Chown opined that the proposed development represents good land use planning and is in the public interest.
Provincial Policy
39Mr. Chown also provided the Tribunal with a thorough and comprehensive review of provincial policies as contained within s. 2 of the Planning Act and the Provincial Policy Statement, 2020. He emphasized that provincial policies encourage the efficient use of land and infrastructure, the provision of a range of housing choices, and infill and intensification in general and especially when it supports transit ridership.
Participant Statements
40Participant statements were received from three individuals in the immediate vicinity of the proposed minor variance application: Dr. Anne Robinson, Dr. Diego Garcia and Myroslav Palenychka. All three of the Participant statements had very similar wording with identical concerns regarding parking, setbacks, height, snow removal, privacy concerns and whether the proposed triplex would have owned or rental units.
41These same types of concerns are typically expressed by local residents whenever this type of infill is being proposed within a mature residential neighbourhood. However, the City has established “as-of-right” development forms and zoning permissions, and triplexes are a permitted use in the R3S Zone. In this case, except for what amounts to be a minor variation to permit a lot area less than the minimum required lot area, the structure being proposed is fully compliant with the zoning standards, including building height and yard setbacks.
42The issue of snow removal is operational in nature and not captured within the Tribunal’s mandate. Likewise, the issue of whether the units are privately owned or rented is not a land use planning matter to be resolved at the Tribunal.
43Mr. Chown also responded to the stated concerns regarding building height and setbacks, reminding the Tribunal that the existing lot has the “as-of-right” permissions for a triplex under current zoning and no variances are being requested for setbacks. He opined that the proposal is in keeping with the evolving nature of the neighbourhood and will have no adverse impacts to its surroundings.
Findings
44As noted earlier in this Decision, Ms. Wakula from the City was in attendance at the Hearing under summons from the Appellant. The Tribunal made reference to Ms. Wakula’s staff report of September 9, 2021 and specifically asked her whether, in her professional opinion, the minor variance passed the four tests as noted above and her response was “yes”.
45In determining the merits of this minor variance, the Tribunal accepts the uncontradicted planning analysis and opinion evidence of Mr. Chown and has had due regard for the City staff Planning Report to the COA and the opinions and recommendations of City’s planning staff.
46The Tribunal is satisfied that the matters of Provincial interest identified in s. 2, of the Planning Act, have been duly regarded.
47The Tribunal also finds that the proposal is consistent with the PPS. The proposal adheres to and supports the Provincial directives and the City’s development policies regarding the creation of new housing opportunities on lands with existing available infrastructure, and supports the promotion of the use of public transit services and active transportation
48Based on the evidence provided by Mr. Chown in his oral testimony and the documentation provided, the Tribunal is satisfied that the proposal meets the general intent and purpose of the Official Plan, meets the general intent and purpose of the Zoning By-law, is minor in nature and that the requested variance is desirable for the appropriate development or use of the land, building or structure. The Tribunal notes that this proposal is a good example of the type of infill/intensification encouraged by the PPS and by the City’s OP in a neighbourhood such as this.
ORDER
49The Tribunal orders that the appeal is allowed and the variance to Zoning By-law No. 2008-250 is authorized, subject to the following standard conditions of the Planning, Infrastructure and Economic Development Department:
The Planning, Infrastructure and Economic Development Department will do a complete review of grading and servicing during the building permit process.
At the time of building permit application, a grading/servicing plan prepared by a Professional Engineer, Ontario Land surveyor or a Certified Engineering Technologist will be required.
Any proposed works to be located within the road allowance requires prior written approval from the Infrastructure Services Department.
All trees on City property and private trees greater than 30 centimetres in diameter in the inner urban area are protected under the Tree Protection By-law (2020-340), and plans are to be developed to allow for their retention and long-term survival. A Tree Removal Permit and compensation are required for the removal of any protected tree.
The surface storm water runoff including the roof water must be self contained and directed to the City Right-of-Way, not onto abutting private properties as approved by Planning, Infrastructure and Economic Development Department.
A private approach permit is required for any access off of the City street.
Existing grading and drainage patterns must not be altered.
Existing services are to be blanked at the owner’s expense.
Asphalt overlay would be required if three or more roadcuts are proposed on City Right of way. This includes the road cut for blanking of existing services, and any other required utility cuts (ie, gas, hydro, etc.).
The Planning, Infrastructure and Economic Development Department requires proof that the Rideau Valley Conservation Authority has granted their approval due to development being located within the regulatory limit.
Service lateral spacing shall be as specified in City of Ottawa Standard S11.3.
Existing street sign to be relocated at the owner’s expense.
Encroachment on or alteration to any easement is not permitted without authorization from easement owner(s).
This property does not have frontage on a storm sewer.
“T. Prevedel”
T. PREVEDEL
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.