Rideau Sports Centre Inc. v. Ottawa (City), 2022 CanLII 34878

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 25, 2022

CASE NO(S).: OLT-21-001468

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

Applicant and Appellant: Rideau Sports Centre Inc.

Subject: Minor Variance

Property Address/Description: 1 Donald Street

Variance from By-law: 2008-250

Municipality: City of Ottawa

Municipal File No.: D-08-02-21/A-00237

OLT Case No.: OLT-21-001468

OLT File No.: OLT-21-001468

OLT Case Name: Rideau Sports Centre Inc. v. Ottawa (City)

Heard: April 4, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
Rideau Sports Centre Inc.	M. Polowin

MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN AND BITA M. RAJAEE ON APRIL 4, 2022 AND ORDER OF THE TRIBUNAL

1This hearing was convened on April 4, 2022, to consider the appeal by Rideau Sports Centre Inc. (“Applicant/Appellant”), on the refusal of the City of Ottawa (“City”) Committee of Adjustment (“COA”) to grant a minor variance application requested to Zoning By-law No. 2008-250 (“ZBL”) pursuant to s. 45(12) of the Planning Act (“Act”).

2The Applicant/Appellant, applied to the City for minor variances to facilitate the construction of a seasonal air inflated sports dome on the northwest corner of the property municipally known as 1 Donald St., in the City.

Requested Variances

3The Applicant/Appellant is seeking:

a) to permit a maximum building height of 13.72 metres (“m”), whereas the by-law permits a maximum building height of 11 m.

b) to permit a reduced setback of 11.40 m from the highwater mark (Rideau River), whereas the By-law requires a minimum setback from the normal highwater mark of 30 m.

c) to permit the sports dome structure within the floodplain overlay, whereas the by-law does not permit development within the floodplain overlay.

Site and Context

4The site is a large parcel of land located at the south end of Riverrain Park, which borders North River Road to the east and Donald Street to the south. The Rideau Sports Centre property is owned by the National Capital Commission.

5The Rideau Sports Centre lands have a total area of 36,379 square metres (“m²”) with approximately 200 m of frontage on North Angled parking, which is provided off of Donald Street.

6The site is situated on the western edge of the Overbrook Community. Residential exists mainly along the east side of North River Road with parkland and recreational facilities located along the west side of North River Road with the exception of some housing directly abutting the Rideau Sports Centre lands.

7There are currently two sports domes on the site, along with a pool, tennis courts, and the Rideau Sports Centre building.

8The proposed development is for a single air inflated sports dome to be constructed where there are currently seven outdoor clay tennis courts. The site is situated between the existing pool and the existing Rideau River eastern pathway. Angled parking is provided off of Donald Street.

LEGISLATIVE TESTS

9The Tribunal’s authority to grant variances is given under s. 45(1) of the Planning Act, which sets out the four tests that must be satisfied by an applicant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant. The tests require that the variances:

a. Maintain the general intent and purpose of the OP;

b. Maintain the general intent and purpose of the Zoning By-law;

c. Be desirable for the appropriate development or use of the land, building or structure; and,

d. Be minor in nature.

THE HEARING

10The Applicant/Appellant advised the Tribunal that they intended on calling two witnesses and provided the Curriculum Vitae and Acknowledgement of Expert Duty forms for Brian Casagrande, Land Use Planner, and Barry Padolsky, Architect, which were provided in the Book of Documents (Exhibit 1). Both were duly qualified to provide opinion evidence in their respective fields.

11The Applicant/Appellant noted that the City, in a Staff report dated September 1, 2021 (Exhibit 1), as well as the National Capital Commission (the “landowner”) and the Rideau Valley Conservation Authority (“RVCA”) did not raise any issues regarding the variance before the Tribunal.

12None of the aforementioned were represented at the hearing.

PLANNING EVIDENCE

Provincial Policy Statement, 2020 (“PPS”)

13Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS.

14It was the opinion of Mr. Casagrande that the application is consistent with the PPS Sections: 1.1.1 c, 1.5, 2.2, 3.1.1, 3.1.2, and 3.1.4 b).

15Section 1.1.1 Healthy, liveable and safe communities are sustained by:

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns.

16He advised the Tribunal that currently, seasonal clay courts exist without any environmental or public health and safety concerns. The subject variances will allow the same use to be provided to the public enclosed in an air inflated sports dome.

17Section 1.5.1 Healthy, active communities should be promoted by:

a) planning public streets, spaces and facilities to be safe, meet the needs of pedestrians, foster social interaction and facilitate active transportation and community connectivity.

18The Tribunal was informed that the area is well serviced by active transportation by means of a walking/cycling path, which runs perpendicular to the subject property. By enclosing the tennis courts within the proposed inflatable dome, the facilities which are open to the public will be enjoyed year-round and accessed directly from the walking/cycling path.

19Section 2.2.1 Water - Planning authorities shall protect, improve or restore the quality and quantity of water:

b) minimizing potential negative impacts, including cross-jurisdictional and cross-watershed impacts;

20Section 3.1.3 Natural Hazards:

Planning authorities shall prepare for the impacts of a changing climate that may increase the risk associated with natural hazards.

21The Tribunal heard that the RVCA does not have any natural hazard nor watershed impact concerns with the proposed inflatable dome. The National Capital Commission owns the lands and entrusts its well-being to the RVCA. There were no objections or concerns raised during the circulation of the applications by City Staff to the RVCA.

22Mr. Casagrande concluded that the proposal as provided demonstrates consistency with the PPS.

THE FOUR TESTS

Do the Variances meet the Intent and Purpose of the Official Plan (“OP”)?

23The property is designated as Open Space on Schedule B of the OP. The Open Space designation (Section 3.3) permits sports, recreation, leisure, and cultural facilities.

24The Tribunal heard that the proposed sports dome is an additional structure on the subject lands. This structure results in a reformation of the existing recreational use on this site from fully exposed outdoor tennis courts to new tennis courts located inside an air inflated dome that is weather protected.

25Mr. Casagrande provided an overview of Policies 1.3(a) and (d), 2, 4 and 5 of which he summarized as having no negative impact on the natural heritage, erosion protection, surface water protection and slope stability. He noted the Applicant/Appellant would be required to obtain a building permit through the City, each time the air inflatable dome was erected.

26Mr. Casagrande stated the adjacent walkway/bicycle path as well as a number of large parks grace the shores of the Rideau River connecting various neighbourhoods. No negative sight impacts will result in the enclosure of the tennis courts as there are a number of trees and significant amount of vegetation buffering the visibility of the dome from the walking/cycling path.

27Section 4, Policies 4 and 5 of the OP, were outlined by Mr. Casagrande who informed the Tribunal that the proposed dome would be an addition to the existing Club House and placed on the same footprint as the existing outdoor tennis courts. The result is a minor addition that is compatible with the existing domes (two permanent domes already contained on the site) and will not require any further land consumption. In this case, “development” is taking place in the same location as the existing “development”. The existing courts are permanently uncovered, the seasonal dome would provide a cover during colder months.

28Mr. Casagrande opined that the request to increase the maximum building height from 11 m to 13.72 m is minor as the shape of the dome results in a very slim component exceeding the maximum building height requirement and due to the width of the structure and very gradual slope, the effect of the height is greatly minimized and not perceivable by pedestrians from most vantage points (Section 4, Policies 10 & 11 of the OP).

29It was his overall opinion that the proposed variances meet the general intent and purpose of the City’s OP.

30The Tribunal accordingly finds that the proposed Variance, as it will permit the temporary placement, on a seasonal basis, with no negative effects on the natural environment surrounding its site, meets the general intent and purpose of the City’s OP.

Do the Variances meet the Intent and Purpose of the Zoning By-Law?

31The City zones this site as L1[310]-h - Community Leisure Facility Zone. In this zone, the relevant permitted uses are sports arena, recreational and athletic facility.

32The intent and purpose of the identified maximum height in the Community Leisure zone is to limit impacts on abutting communities and to maintain a degree of openness that should not be impacted by shadowing.

33Mr. Casagrande opined that similar to meeting the requirements in the OP, the shape and width of the air-inflated structure ensures that shadowing would not be significantly different between a compliant 13.72 m building height and the proposed building height. He confirmed that Planning Staff concurred that the increase in height is necessitated only by the type of air-inflated structure proposed.

34Additionally, the proposed air-inflated structure will be surrounded by vegetation and will not adversely impact the residential uses in the immediate context in terms of height increase. The shape of the structure minimizes the visual impact of the requested increase of 2.72 m.

35Mr. Casagrande stated that Planning Staff had indicated they had no concerns with the Proposal’s construction within the floodplain overlay and with a reduced setback from the normal high-water mark, provided that any approval granted reflects the seasonal nature of the inflatable dome, which should be limited to no more than a contiguous nine-month period, generally starting with the installation in the fall and removal in the spring.

36The Tribunal accordingly finds that this test for the Variance has been satisfied.

Are the Variances considered Minor and Desirable for the appropriate development or use of the land, building or structure?

37The Property is zoned and designated for a variety of activities, which includes recreational uses.

38The policy direction of the OP and the PPS is to foster and promote active healthy communities. By allowing a recreational activity to operate more often through the provision of a weather protected structure, the proposed variances are suitable for the use of the land.

39The RVCA has authority with regards to the floodplain and watercourse setback and did not have any issues with this proposed inflatable structure and its location.

40The Tribunal was informed that there are no habitable spaces or uses or sensitive land uses within the proposed setback, the reduction in setback is minimal and will not create any undue or adverse impact. The variance is therefore minor.

FINDINGS

41The Tribunal is satisfied with the evidence provided by Mr. Casagrande and Mr. Padolsky through their uncontroverted testimony, the four tests have been satisfied and have resulted in evidence that adverse impacts will not occur with the granting of the variance.

42The intent and purpose of the OP and PPS is to foster and promote recreational activities. The Tribunal finds that this seasonal structure ensures continued operation for public use that provides weather protection for existing tennis activities thereby extending the playable season into the colder months.

43The Tribunal is satisfied that the variance to the increase in height by 2.72 m is minor in nature and generally in keeping with the intent and purpose of the maximum height in the zoning by-law, which seeks to limit impacts on abutting dwellings and maintain a degree of openness.

44The Tribunal is satisfied that the proposed structure is appropriately setback from existing residential and is buffered by open space, vegetation and is a seasonal structure that ensures there are no negative impacts on the surrounding area.

45The Tribunal is satisfied the location of the proposed structure maintains the environmental integrity of the water’s edge area, in the event of a rise in the normal high watermark. The development is in the same location and does not contain any habitable spaces ensuring that the impact from the reduction in the normal high watermark setback is maintained.

46The Tribunal finds the existing tennis courts, per review by RVCA, already constitute development with the two existing sports domes, which are already located within the floodplain overlay at this location. Covering the location of the existing exposed tennis courts with a seasonal air-inflated structure does not significantly change the ‘development’ that already exists.

47The Tribunal finds that the variances are desirable and suitable for the use of land as described. By allowing a recreational activity to operate more often through the provision of a seasonal weather protected structure, the proposed variances are therefore suitable and desirable for the use of the land.

48Upon the whole of the evidence regarding conformity with the applicable OP, and the uncontroverted expert planning and architectural evidence presented, the Tribunal finds that the installation of the proposed structure on a yearly seasonal basis has regard to, and does not conflict with matters of provincial interest found in s. 2 of the Act, is consistent with the PPS and conforms to the City OP.

ORDER

49THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 2008-250 are authorized subject to:

1. The seasonal sports dome operation being limited to no more than a contiguous nine-month period, generally starting in the fall with the structure erected and removed in the spring, and meeting all requirements as set out by the City of Ottawa.

“D. Chipman”

D. chipman

MEMBER

“Bita M. Rajaee”

BITA M. RAJAEE

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.