Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 23, 2022
CASE NO(S).: OLT-21-001432
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: Sheila Sparkes
Appellant: Barbara Clarke and Richard Nolan
Subject: Minor Variance
Property Address/Description: 22-24 St. Francis Street
Variance from By-law: 2008-250
Municipality: City of Ottawa
Municipal File No.: D08-02-21/A-00063
OLT Lead Case No.: OLT-21-001432
OLT Case No.: OLT-21-001432
OLT Case Name: Clarke v. Ottawa (City)
Heard: February 11, 2022 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Barbara Clarke and Richard Nolan | Self-represented |
| Sheila Sparkes | Self-represented |
DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Sheila Sparkes (“the Applicant”) owns a three-storey, six-unit apartment building located at 22-24 St. Francis Street (“subject property”). She intends to demolish an existing three-level deck and staircase structure at the rear of the building and wishes to replace it with a newer, similar structure containing a staircase and larger decks at all three levels.
2In order to give effect to her proposal, she applied to the City of Ottawa (“City”) Committee of Adjustment (“Committee”) for minor variances to grant relief from the following provisions in Zoning By-law No. 2008-250 (“ZBL”):
a) To permit the proposed stairs to project within 0.35 metres (“m”) from the southern side lot line, whereas the ZBL requires that open stairways are permitted to project 2.2 m into a required yard, but no closer than 1.0 m from any lot line; and
b) to permit the proposed balconies to project within 0.35 m from the southern side lot line, whereas the ZBL requires that balconies are permitted to project 2.0 m into a required yard but no closer than 1.0 m from any lot line.
3The Committee approved the application subject to the following condition:
The location and size of the proposed construction being in accordance with the revised site plan filed, Committee of Adjustment date stamped July 23, 2021 and the elevations plans, Committee of Adjustment date stamped March 10, 2021, with the addition of opaque privacy screening installed at full height and depth of the balconies on all three levels, to the satisfaction of the City's Planning, Infrastructure and Economic Development Department.
That decision was appealed by adjacent property owners, Barbara Clarke and Richard Nolan (“Appellants”), pursuant to s. 45(12) of the Planning Act1 (“Act”).
4Prior to the hearing, the City advised the Tribunal that it would not be appearing or taking a position in the proceeding.
LEGISLATIVE FRAMEWORK
5An appeal pursuant to s. 45 of the Act is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variance:
a) maintains the general intent and purpose of the official plan (“OP”);
b) maintains the general intent and purpose of the ZBL;
c) is minor in nature; and
d) is desirable for the appropriate development or use of the land building or structure
6In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter, in this case the application for variance, must be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest, as well as regard for the decision of the municipal council and the information considered by it in the course of making that decision.
ISSUES AND EVIDENCE
7The Appellants, while not completely opposed to the replacement and expansion of the existing staircase and deck structure, are of the view that the requested variances do not meet the four tests set out in s. 45(1). The Appellants submitted, with reference to photographs of some nearby properties contained within a book of documents (Exhibit 1), that the proposed structure does not match similar structures located elsewhere in the area. As such, they argued the structure will be incompatible with the character of the surrounding neighbourhood, being “unprecedented in both size and relative distance to neighbouring properties”.
8While they acknowledged OP policies which promote enhancements to amenities in urban areas, the Appellants submitted that such policies could not have been intended to allow for balconies/decks of the size proposed. In the view of the Appellants, because all of the units in the building are only one-bedroom apartments, there is no need for decks of the scale proposed and the expansion of the structure should be limited in size as a result.
9The Appellants further argued the requested variances are neither minor nor desirable as the proposed structure would have substantial impacts upon their property. In their view, there would be the potential for significant overlook onto their property from the second and third storeys and the only proposed entrance to the structure on the south side of the building would be extremely close to their property, with all tenant traffic in and out of the units taking place steps away from their home. They additionally raised concerns with respect to impacts in terms of noise and other nuisances, such as second-hand smoke, resulting from large outdoor gatherings which, in their view, would inevitably result from increased capacity offered by larger deck areas.
10In support of their position, the Appellants called the evidence of Greg MacDougall, a lay witness, who testified with reference to photographic evidence of a similar structure elsewhere in the neighbourhood (also contained within Exhibit 1), that the proposed structure could be constructed with the access to the staircase located on the opposite side of the building, so as to minimize some of the potential impacts referenced by the Appellants.
11The Appellants also called the evidence of Tom Clarke, a civil engineer, whom the Tribunal qualified to provide opinion evidence with experience in renovation/addition design and construction. He provided a critique of the proposal before the Tribunal and offered a series of design alternatives. In Mr. Clarke’s view, the proposed orientation of the staircase which runs through the middle of the structure between the building’s three levels results in the need for the decks surrounding the staircase to be larger in size. He opined that a more efficient and less impactful design would see the staircase located on the opposite side of the building running straight up along the perimeter of the structure, allowing the deck areas to be scaled back in size, thereby improving impacts upon the Appellants’ property in terms of privacy, overlook, noise, etc.
12In contrast, the Applicant’s position is that the requested variances meet the four tests and should be approved. In support of the foregoing, the Applicant called the evidence of her husband, David Forester, who provided factual evidence with respect to the building/property, the need for an updated structure and the design thereof.
13He noted that the existing decks are quite small, with room for only “bistro” sized outdoor tables and chairs. Owing to the current size limitations, these often need to be placed in such a way as to partially block entrances to the units. He explained that a number of design alternatives had been considered but were neither reasonable nor feasible, owing to the property’s inherent limitations including, but not limited to: the age of the building (constructed in 1902); the property’s size limits and the need for tenant parking as well as room for snow removal vehicles to manoeuvre; the orientation of entrances and windows to the building’s units, etc. All of the foregoing ultimately resulted in the proposal currently before the Tribunal.
14The Applicant also relied upon the testimony of Craig Hamilton, a Planner for the City, who appeared at the hearing under summons. While Mr. Hamilton has not yet achieved the designation of Registered Professional Planner, his role at the City is exclusively to evaluate minor variance applications. The Tribunal qualified Mr. Hamilton to provide land use planning opinion evidence because he possesses pertinent education and experience; authored the planning report with respect to the variances under appeal; and, most importantly, the Tribunal considered his opinion to be relevant and necessary to assist in arriving at a decision on the issues in dispute. The Tribunal notes his was the only professional planning evidence offered on this appeal, standing uncontradicted.
15Mr. Hamilton’s overall opinion is that the requested variances meet all the required legislative tests but, given that the matter is local in nature, his testimony focused mainly upon s. 45(1) of the Act. In his view, the variances maintain the general intent and purpose of both the OP and the ZBL, are desirable for the appropriate development/use of the land, building or structure and are minor in nature.
16Mr. Hamilton testified that the existing structure enjoys legal non-complying status and, with reference to s. 3 of the ZBL, explained the Applicant is permitted, as-of-right (“AOR”), to expand the structure provided that expansion falls at least halfway between the required setback provision in the ZBL and the existing non-complying situation. Therefore, whereas the ZBL requires a setback of 1.0 m and what currently exists is a setback of 0.35 m, s. 3 allows for the structure to be expanded, AOR, with a setback of 0.675 m.
17The Appellants disagreed that the structure enjoys legal non-complying status, noting there was no evidence before the Tribunal that the structure had historically been used as balconies or decks rather than simple access and egress to and from the units. Mr. Hamilton testified that, in the course of evaluating the application, he contacted the City’s Building Code Services Department, which confirmed the legal non-complying status of the structure. He also opined that the structure functions now and would have historically functioned as both a staircase and balcony/deck area for the tenants. The Tribunal accepted his opinion in this regard and finds s. 3 of the ZBL is applicable.
18In addition to the foregoing, Mr. Hamilton explained that no relief is required for the proposed deck extension at the ground level, as s. 65 of the ZBL provides that where the walking surface of a deck or platform is not higher than 0.6 m above adjacent grade, there is no limit to the side yard setback.
19Given the foregoing, and with reference to the following diagram put before the Tribunal by the Applicant in a book of documents (Exhibit 2, page 9), Mr. Hamilton noted that, were the small shaded rectangle area located behind the proposed stairs (referred to throughout the hearing as “the blue notch”) to be removed, the Applicant could otherwise build the structure as depicted without the need for any variances, but would need to shift the proposed stairs/entrance to the structure slightly inward.
20Mr. Hamilton noted that the only portion of the proposal which would extend past the Appellants’ building on the south side are the few stairs at the entrance to the structure. He pointed out the existing condition of small side yard setbacks for both the subject and adjacent properties and opined the variances are minor both in the amount of relief requested and in the potential for impact upon the adjacent property which, in his view, will be appropriately mitigated given the requirement in the ZBL (which was also added as a condition by the Committee) that 1.5 m opaque privacy screening be installed along the entire length and height of the proposed structure on the south side.
21Mr. Hamilton spoke to the OP and the issue of compatibility. He testified that his evaluation of the application included a review of community character which took into account a number of other properties in the neighbourhood with large sized terraces, balconies and decks. He testified to the existence of a “fair number of similarly sized structures in the neighbourhood” that were not focused upon in the Appellants’ photographic presentation to the Tribunal.
22In his view, the variances meet all four tests in s. 45(1) because they represent what, in his opinion, is a minor adjustment which will ultimately facilitate the creation of a more spacious amenity area for tenants, aligning with specific policies in the OP speaking to redevelopment and general improvements within urban areas of the City that maintain the characteristics of established communities, as well as the intent of the applicable ZBL policies which permit the continuation of existing amenity areas as well as the creation of new ones while providing for adequate distancing between buildings.
ANALYSIS AND FINDINGS
23Despite the Tribunal’s explanation to the parties that an appeal against a decision of the Committee triggers a new hearing, a great deal of the Appellants’ case focused upon happenings at the Committee meeting and what they perceived as a lack of disclosure and co-operation on the part of City Staff leading up to that Committee meeting. The Tribunal also notes the case put forward by the Appellants demonstrated extensive research and effort, including a number of alternative design proposals, spoken to by a professional engineer. Notwithstanding the fact that there may be alternative designs which might not require variances from the ZBL, such alternatives are not for consideration in the context of the appeal and are not relevant to the evaluation of whether the proposal that is before the Tribunal meets the requisite legislative tests.
24While all of the foregoing was explained to the parties at the hearing, it bears repeating in this decision so it can be understood that, in making its decision, the Tribunal disregarded all non-relevant and non-planning matters and focused upon the evaluation of the proposal before it in the context of this de novo hearing.
25The Tribunal finds the requested variances meet the four tests in s. 45(1) and, in so finding, significant weight was placed upon the sworn, uncontradicted testimony of Mr. Hamilton, being the only available professional planning evidence in this proceeding.
26The Tribunal accepted Mr. Hamilton’s testimony that the existing structure enjoys legal non-conforming status and serves/has historically served the dual purpose of providing access/egress to the units as well as outdoor amenity/balcony areas for the tenants of the building. The Tribunal further accepts Mr. Hamilton’s opinion that the requested variances are minor in nature, are desirable for the appropriate development and use of the land, building or structure and maintain the general intent and purpose of both the ZBL and the OP.
27With respect to the issue of compatibility, in particular, and the Appellants’ assertion that the proposed structure does not match similar structures located elsewhere in the area, the Tribunal has, in previous decisions, repeatedly noted that compatibility need not be “the same as” nor “similar to” but rather, requires new and existing development to be capable of existing together in harmony. On this point, the Tribunal accepts the opinion of Mr. Hamilton that there are a fair number of similarly large sized structures in the surrounding neighbourhood and the ZBL requirement for opaque privacy screening will appropriately mitigate potential impacts associated with the proposed development. Based on the foregoing, the Tribunal finds the proposed structure is compatible as it is capable of existing in harmony with existing development in the neighbourhood.
28The Tribunal finds the proposed development represents good planning in the public interest. The application has regard to matters of Provincial interest and demonstrates consistency with the PPS including, but not limited to, policies which speak to the orderly development of safe and healthy communities as well as efficient development and land use patterns. In the view of the Tribunal, the proposal will facilitate needed upgrades/improvements to an existing apartment building which aids in sustaining a range and mix of available housing types in the area.
29Finally, the Tribunal has given due regard to the decision of the Committee to conditionally approve the requested variances, as well as the information considered by it in the course of making that decision, including the planning report of Mr. Hamilton as well as comments from area residents, both in support of and in opposition to the application.
ORDER
30The Tribunal orders that the appeal is dismissed. The variances to Zoning By-law No. 2008-250 are authorized subject to the following condition: the location and size of the proposed construction shall be in accordance with the revised site plan filed, Committee of Adjustment date stamped July 23, 2021 and the elevations plans, Committee of Adjustment date stamped March 10, 2021, with the addition of opaque privacy screening installed at full height and depth of the balconies on all three levels, to the satisfaction of the City's Planning, Infrastructure and Economic Development Department.
“S. Braun”
s. braun
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
Footnotes
- R.S.O. 1990, c. P. 13, as amended.