Isaac Saramgar v. Ottawa (City), 2022 CanLII 21212

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 14, 2022

CASE NO(S).: OLT-21-001123

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

Appellant: Isaac Saramgar

Applicant: Isaac Saramgar

Subject: Consent

Property Address/Description: 182 and 184 Clare Street

Municipality: Ottawa

Municipal File No.: D08-01-20/B-00212

OLT Lead Case No.: OLT-21-001123

OLT Case File No.: OLT-21-001123

OLT Case Name: Saramgar v. Ottawa (City)

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

Appellant: Isaac Saramgar

Applicant: Isaac Saramgar

Subject: Consent

Property Address/Description: 182 and 184 Clare Street

Municipality: Ottawa

Municipal File No.: D08-01-20/B-00213

OLT Lead Case No.: OLT-21-001123

OLT Case File No.: OLT-21-001124

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

Applicant and Appellant: Isaac Saramgar

Subject: Minor Variance

Variance from By-law No.: 2008 -250

Property Address/Description: 182 and 184 Clare Street

Municipality: Ottawa

Municipal File No.: D08-02-20/A-00212

OLT Lead Case No.: OLT-21-001123

OLT Case No.: OLT-21-001125

OLT Case Name: Saramgar v. Ottawa (City)

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

Applicant and Appellant: Isaac Saramgar

Subject: Minor Variance

Variance from By-law No.: 2008 -250

Property Address/Description: 182 and 184 Clare Street

Municipality: Ottawa

Municipal File No.: D08-02-20/A-00213

OLT Lead Case No.: OLT-21-001123

OLT Case No.: OLT-21-001126

OLT Case Name: Saramgar v. Ottawa (City)

Heard: February 22, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Mona Taheri, Neda Taheri and Isaac Saramgar (collectively “Applicant” or “Appellant”)	Jacob Polowin
City of Ottawa (“City”)	Did not appear

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal of the decision by the City’s Committee of Adjustment (“Committee”) denying a consent application and minor variance / permission application relating to the property municipally known as 182 and 184 Clare Street, Ottawa (“Subject Property”).

1. BACKGROUND

2The purpose of the applications is to seek consent for the severance of the Subject Property into two (2) separate parcels with the subdivision of the residential building on the property into a separate semi-detached dwelling for each parcel. Minor variances are also required to address the proposed reduced lot area for each parcel and permissions are required to expand the legally non-compliant building envelope.

3Historically, the Subject Property was occupied by a residential building comprised of two semi-detached dwelling units and was acknowledged by the City as legal non-conforming. The Original Dwelling (“Original Dwelling”) was demolished and rebuilt in 2020 after the owner secured demolition and building permits from the City in 2019. The current dwelling was essentially constructed as two semi-detached units in compliance with those permits. The permits for the Current Building (“Current Building”) were granted by the City since the proposed building essentially maintained the same size, footprint and form of the Original Dwelling and would thus benefit from the same legal non-compliant rights as the Original Dwelling.

4In 2020, the Appellant applied to the City for a consent to sever the Subject Property into two separately conveyable parcels of land with half of the Current Building on one parcel and the other half on the other parcel. The Appellant also applied for minor variances to address a reduced lot area for each parcel and sought permissions to expand the legally non-compliant building envelope.

5The Committee refused the applications on April 7, 2021 despite a report dated April 1, 2021 from the Planning, Infrastructure and Economic Development Department confirming that the planning department had no concerns with the applications and recommended that the conditions attached in Appendix 1 be imposed. (“City Planning Report”)

6On April 29, 2021, the Applicant filed an appeal of the Committee decision with the Ontario Land Tribunal.

2. SEVERANCE APPLICATION

7The purpose of the Consent application is to create two (2) separately conveyable parcels. The division of the Subject Property is based on the dividing line between the two semi-detached units in the Current Building, which matches the historical division between the two units in the original building and the land used with each of them. The Applicant requests approval to sever the lands as described in the table below and illustrated in the registered reference plan 4R-33287.

Part on Plan 4R-33287	Location	Size	Width
Part 1	West abutting Clare Street and Westhaven Crescent	77.27 m2	7.92 metres
Part 2	East abutting Clare Street	118.97 m2	12.19 metres

3. Minor Variance/Permission Application

8To permit the lot severance, relief from the lot area requirements of the Zoning By-law No. 2008-250 (“ZB”) is required. (“Lot Area Minor Variance”) The legally non-compliant building envelope was expanded on the site when the Current Building was erected due to the installation of covered basement walkouts and minor deviations caused by a bow window and from squaring the building and thus permissions must be sought by the Applicant. (“Building Envelope Permissions”)

9Both the Lot Area Minor Variances and the Building Envelope Permissions are detailed in Appendix 2.

4. HEARING AND WITNESSES

10A hearing was held on February 22, 2022, the Applicant called Mr. Beed as an Expert Planning Witness. He was properly qualified as an Expert Witness and the Tribunal found his evidence to be credible and uncontradicted. Jeff Nadeau, the author of the City Planning Report appeared pursuant to a summons and was also qualified as an expert planning witness. Mr. Nadeau confirmed that he agreed with the evidence of Mr. Beed and the City Planning department had no concerns regarding the applications.

5. APPEAL AND APPLICABLE TESTS

11This appeal is a hearing de novo of the Minor Variance and Consent/Permission applications. The Tribunal is required to hear the evidence presented and decide whether to grant them based on the submissions and the applicable legal tests. The Tribunal must have regard to the decision of the Committee but is not bound by it.

12Initially, the Tribunal will deal with the severance application under s. 51(24) of the Planning Act (“Act”) and then deal with the minor variance application with respect to the Lot Area Minor Variances under s. 45(1) of the Act. The Building Envelope Permissions will be assessed under s. 45(2) of the Act.

5. severance application

13The Subject Property includes the Current Building which has been rebuilt based on the building envelope of the house that formerly existed on the property with some minor variations for which Building Envelope Permissions are sought. The Current Building essentially contains two semi-detached dwellings, as existed historically on the property, with a new covered walk-out for each unit. The units are designed and operate as two separate single-family residences and there is the opportunity in the future to add basement apartments due to the addition of the walkouts to the structure. The two proposed lots reflect the territory allocated to the two residences historically on the Subject Property.

14The severance application seeks to formalize the historic operation of the Subject Property. In assessing the application, the Tribunal must determine that the proposed severance meets the criteria established by s. 51(24) of the Act. The planning evidence supported the severance application as follows.

A. Matters of Provincial Interest and Provincial Policy Statement

15The proposed severance will result in infill and further intensification of the Subject Property. In addition to the creation of two (2) separate lots with two (2) separate semi-detached dwellings, the two covered basement walk-outs in the Current Building will encourage the future development of basement apartments. The development supports the provincial goal of sustainability and the efficient use of infrastructure and public services as identified by the Provincial Policy Statement (“PPS”) and matters of provincial interest.

B. Public Interest

16The proposed severance is in the public interest and not premature. The Current Building will integrate well into the community since it mirrors the former building and continue to rely on municipal services without burdening them unduly. Such intensification is encouraged by provincial, and municipal polices.

C. Conformance to the Official Plan

17The Subject Property is in the City of Ottawa (“City”) and is designated as General Urban Area in the City’s Official Plan (“OP”) permitting many types and densities of housing. The OP encourages concentrated growth and thus the severance conforms to the OP.

D. Dimensions and Shapes of Proposed Lots and Restrictions

18The Subject Property is a corner lot which has accommodated the Current Building and previous Structure without issue. The lots are undersized based on the zoning. The Subject Property is zoned Residential Third Density, Subzone R (R3R) in Ottawa Zoning By-law No. 2008-250 (“ZB”) The intent of the Residential Third Density Zone is to allow a mix of residential building forms ranging from detached to townhouse dwellings, as well as a number of other residential uses in order to provide additional housing choices and to do so in a manner that is compatible with existing land use patterns so that the mixed dwelling, residential character of a neighbourhood is maintained or enhanced.

19The R3R zone requires a minimum lot area of 180 square metres (“m²”), while the proposed lot area for Part 1 would be 77.27 m² and 118.97 m² for Part 2 identified in Appendix 2.

E. Other Criteria under [section 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

20All other criteria required by s. 51(24) of the Act are met by the proposed severance. There are no issues related to natural resources, flood control, the adequacy of utilities or municipal services, adequacy of school sites, land required for public purposes, or energy supply or efficiency problems created by the proposed severance.

F. Summary of Decision on the Severance Application and Conditions of Severance

21The severance application meets the requirements of s. 51(24) and should be allowed provided that the Lot Area Minor Variance Application and the Building Envelope Permissions are granted. Counsel for the Appellant confirmed that the Conditions of Severance identified in Appendix 1 are acceptable and the Tribunal finds that they are appropriate under the circumstances.

7. Lot Area Minor Variance application

22Prior to allowing the severance, the Tribunal must review whether a Lot Area Minor Variance should be allowed for the reduced lot coverage of the proposed severed parcels relative to the requirements under the ZB and whether the Building Envelope Permissions should be granted. In making its decision on the Lot Area Minor Variance, the Tribunal is required to assess the minor variances using the four tests set out in s. 45(1) of the Act. The Tribunal heard the following planning evidence regarding each of these tests.

1. Does the variance maintain the general intent and purpose of the Official plan (“OP”)?

23The OP supports intensification in the General Urban Area designation where it is compatible. Section 2.5.1 of the OP defines compatibility based on coexistence with existing development, without causing undue adverse impact on the surrounding properties. The proposed division of land and the Current Building maintains the pre-existing form and is expected to continue to remain compatible with the surrounding Neighbourhood.

2. Does the variance maintain the general intent and purpose of the zoning by-law?

24The R3R zoning of the Subject Property imposes minimum lot area sizes to ensure that the new development is compatible and complementary to the surrounding land uses. Since the reduced lot sizes reflect the historic relationship of the Subject Property with the Neighbourhood which has functioned without issue, the general intent and purpose of the ZB is maintained.

3. Is the variance minor?

25The test for whether the variance is minor relates to whether there is an undue adverse impact caused by it. The planning evidence confirmed that the impact of the reduced lot sizes is not significant since it maintains the status quo and there is no known undue adverse impact and thus the proposed variance is minor.

4. Is the variance desirable for the appropriate development or use of the land, building or structure?

26The proposed minor variance reducing the required lot sizes for the severed parcels is desirable since it will allow for the division of land and sale of two separate semi-detached units separately. This will increase the number and diversity of affordable housing options within a desirable area.

27Based on the planning evidence, the Tribunal finds that the proposed minor variance meets the tests under s. 45(1) of the Act.

8. Building Envelope PERMISSIONS UNDER SECTION 45(2)

28The complete Building Envelope Permissions are detailed in Appendix 2. The Appellant requested at the hearing that the Tribunal permit two minor changes to the Building Envelope Permissions application originally filed with the City by the Appellants, without requiring further notice. The basement walkout entrance for parcel identified as Part 2 was missed in error and the bay window on the structure on Part 1 should have been identified as being 0.4 metres (“m”) closer to the lot line rather than 0.2 m closer in the applications filed with the City. These corrections were made in Appendix 2 and thus Building Envelope Permissions detailed are accurate.

29The Tribunal finds that these changes to the application for Building Envelope Permissions are minor in nature and should be permitted without notice to the persons and public bodies who received notice of the original application pursuant to s. 45(18.1.1) of the Act. The basement walkouts for both sides of the Current Building were included in the evidence before the Committee as confirmed by Mr. Polowin in his submissions as further verified by the planning report prepared by Fotenn on February 15, 2021 for the Committee. The other measurement change relates to a minor clerical error.

30In making its decision on the Building Envelope Permissions, s. 45(2)(a)(i) of the Act applies since the Subject Property is legal non-conforming. The case of Fraser v. Rideau Lakes (Township), 2020 LNONLPAT 957PL200039 was cited by counsel as providing the correct test for evaluating the application for Building Envelope Permissions under s. 45(2) of the Act. The Building Envelope Minor Variances must be evaluated based on:

1. Whether they are desirable for appropriate development of the Subject Property, and

2. Whether they will result in undue adverse impacts on the surrounding properties and the neighbourhood.

31The Planning Evidence was clear that the Building Envelope Permissions would not have any undue adverse impacts on the surrounding properties and the Neighbourhood. The evidence indicated that these changes will not result in any additional shadowing, overlook, noise or traffic issues which might be considered an adverse impact. They are also desirable for the development of the Subject Property as they will result in increased affordable housing and facilitate the possible addition of basement apartments in the future due to walkout access included in the Current Building.

32The Tribunal finds that based on the planning evidence that the requirements of s. 45(2) of the Act have been satisfied as the Building Envelope Permissions are minor and desirable, the Building Envelope Permissions are granted.

33The Tribunal also grants consent to the proposed severance of the Subject Property and approves the minor variance application for the reduced lot sizes for Parcel 1 and Parcel 2 as identified in Appendix 2.

9. ORDER

34THE TRIBUNAL having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required;

35THE TRIBUNAL ORDERS that:

1. The appeal is allowed, in part.

2. The provisional consent is given subject to the conditions identified in Appendix 1 for the severance of the property municipally known as 182 and 184 Clare Street into two parcels, namely Parcel 1 registered reference plan 4R-33287 and Parcel 2 registered reference plan 4R-33287.

3. The variances to Zoning By-law No. 2008-250 for the City of Ottawa for the reduced lot size of Parcel 1 registered reference plan 4R-33287 and Parcel 2 registered reference plan 4R-33287 are approved subject to the conditions set out in the Appendix 1 to this Order.

4. The permissions sought relating to the building on the Subject Property as identified in Appendix 2 are hereby authorized, subject to the conditions set out in Appendix 1.

“A. Cornacchia”

A. CORNACCHIA

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.

APPENDIX 1

Site Address: 182 (184) Clare Street

Legal Description: PLAN 308 LOT 7

File No.: D08-01-20/A-00212 & A-00213, D08-02-20/B-00212 & B-00213

Date: April 1, 2021 Hearing Date: April 7, 2021

Planner: Jeff Nadeau

Official Plan Designation: General Urban Area

Zoning: R3R (Residential, Third Density Zone, Subzone R)

Mature Neighbourhood Bylaw: N/A

Conditions:

The Department further requests that the following conditions be imposed on the minor variance application if approved:

1. That the Owner(s) provide evidence (servicing plan), to the satisfaction of the General Manager of the Planning, Infrastructure 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 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.

2. That the Owner(s) enter into a Joint Use, Maintenance and Common Elements Agreement, 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 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 City’s General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate, and City Legal Services. The Committee requires written confirmation that the Agreement is satisfactory to the City’s General Manager of the Planning, Infrastructure 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.

3. The Owner(s) shall prepare a noise attenuation study (or noise and vibration attenuation study if applicable) in compliance with the City of Ottawa Environmental Noise Control Guidelines to the satisfaction of the General Manager, Planning, Infrastructure and Economic Development Department, or his/her designate. The Owner(s) shall enter into an agreement with the City that requires the Owner to implement any noise control (and vibration if applicable) attenuation measures recommended in the approved study. The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.

4. That the Owner(s) provide proof to the satisfaction of the General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that the existing dwelling has been removed, that the existing sewer services are capped at the sewer and that the existing water service is blanked at the watermain.

5. That the Owner(s) shall provide evidence that a grading and drainage plan, prepared by a qualified Civil Engineer licensed in the Province of Ontario, an Ontario Land Surveyor or a Certified Engineering Technologist, has been submitted to the satisfaction of the General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate to be confirmed in writing from the Department to the Committee.

The grading and drainage plan shall delineate existing and proposed grades for both the severed and retained properties, to the satisfaction of the General Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate.