Cambu Construction Ltd. v. Ottawa (City), 2022 CanLII 37708

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 03, 2022

CASE NO(S).: OLT-21-001674

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

Applicant and Appellant: Cambu Construction Ltd.

Subject: Minor Variance

Property Address/Description: 70 Granton Avenue

Variance from By-law: 2008-250

Municipality: City of Ottawa

Municipal File No.: D08-02-21/A-00222

OLT Lead Case No.: OLT-21-001674

OLT Case No.: OLT-21-001674

OLT Case Name: Cambu Construction Ltd. 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: Cambu Construction Ltd.

Subject: Minor Variance

Property Address/Description: 70 Granton Avenue

Variance from By-law: 2008-250

Municipality: City of Ottawa

Municipal File No.: D08-02-21/A-00223

OLT Lead Case No.: OLT-21-001674

OLT Case No.: OLT-21-001675

Heard: April 4, 2022 by video hearing

APPEARANCES:

Parties	Representative
Cambu Construction Ltd.	Kristi Ross

DECISION DELIVERED P. TOMILIN AND A. CORNACCHIA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal by Cambu Construction Ltd. (the “Appellant”) of the decision of the Committee of Adjustment (“COA”) for the City of Ottawa (“City”) to deny a minor variance application for the adjustment of various zoning requirements under the City’s Zoning By-law No. 2008-250 (“ZBL”) to facilitate the construction of two detached single-family dwellings on the property municipally known 70 Granton Avenue (“Subject Lands”).

2The Subject Lands are legally described as Lot 2314 to 2317, in Reg. Plan of Subdivision 375. There is an existing dwelling on the Subject Lands which will be demolished as part of the proposed development. Two new single family dwellings are to be built in its place on lots 2314/2315 (“70 Granton Avenue”) as well as lots 2316/2317 (“72 Granton Avenue”). A severance is not required since each of the four lots from the original parcel are separate lots on the plan of subdivision.

3The Subject Lands are in the City’s Cityview Area, which is also known as St. Claire Gardens. This neighbourhood contains a mix of homes varying in age from newer builds to war and post-war style bungalow homes. Many infill developments have taken place in the neighbourhood and this continues to occur due to the large lots found in the area.

4The Subject lands are designated General Urban Area (“GUA”) on Schedule B of the Official Plan (“OP”) and are zoned R1FF[632] in ZB.

Request for Participant Status

5The Tribunal granted a request for Participant Status from the City View Community Association (“CVCA”). The Tribunal reviewed the concerns set out in the Participant Statement with the expert planning witnesses after they gave their testimony. The Tribunal finds that the planning evidence did not support the assertions made by the CVCA in opposition to the proposed development.

The Appellant

6The Appellant is a co-owner of the Subject Lands with 1168755 Ontario Inc.

7The Appellant, along with 1168755 Ontario Inc., were Co-Applicants for the applications for minor variances.

8The Appellant has filed this appeal on behalf of both owners of the Subject Lands and with the full knowledge and co-operation of 1168755 Ontario Inc.

The Development Proposal

9The Appellant proposes to demolish the existing unoccupied detached dwelling and to construct two, two-storey detached dwellings, with one dwelling on Lots 2314 and 2315, and the other dwelling on Lots 2316 and 2317 (the four full lots).

10The requested Minor Variances (“MV”) are as follows:

D08-02-21/A-00222: 70 Granton Ave., Lots 2316 & 2317

a) To permit a reduced lot width of 15.215 metres, whereas the ZBL requires a minimum lot width of 19.5 metres

b) To permit a reduced lot area of 441.9 square metres, whereas the ZBL requires a minimum lot area of 600 square metres

c) To permit the garage to be 1.52 metres closer to the front lot line than is the principal entrance to the dwelling, whereas the ZBL states the garage may not be more than 0.6 metres closer to the front lot than is the principal entrance to the dwelling

d) To permit a reduced rear yard setback of 26.5% of the lot depth or 7.69 metres, whereas ZBL requires a minimum rear yard setback of 28% of the lot depth which, in this case, is 8.13 metres

D08-02-21/A-00223: 72 Granton Ave., Lots 2314 & 2315

e) To permit a reduced lot width of 15.215 metres, whereas the ZBL requires a minimum lot width of 19.5 metres

f) To permit a reduced lot area of 441.9 square metres, whereas the ZBL requires a minimum lot area of 600 square metres

g) To permit the garage to be 1.52 metres closer to the front lot line than the principal entrance to the dwelling, whereas the ZBL states the garage may not be more than 0.6 metres closer to the front lot line than the principal entrance to the dwelling

11The COA did not authorize the MV application, despite the planning report of Christina Culley, a Development Review Planner which supported the application. The City Planning Department had “no concerns” regarding the requested MV since in its view all four tests under the Planning Act were met by the application.

Hearing

12Three witnesses testified at the hearing in support of the MV application. Clemente Porcari testified regarding the MV application process and Ms. Culley, a Planner from the City’s planning department and Michael Wright, a Planner, were qualified by the Tribunal to testify on planning matters.

13Mr. Porcari acted as an Agent for the Appellant during the application process for MV in front of COA. The Applicant retained an arborist to conduct a Tree Information Report (“TIR”) on the Subject Lands and on adjacent properties.

14The TIR indicated that there are three trees on the Subject Lands. One tree will need to be removed in order to complete the construction. The other trees on the Subject Lands and on neighbouring or City-owned property will be retained and protected during the project.

15The Appellant plans to plant two new trees in the Right-of-Way (“ROW”), one in front of each of 70 and 72 Granton Avenue as part of the proposed development.

16Comments on the Applications for MV were submitted by the City’s Planning, Infrastructure and Economic Development Department (“PIEDD”). PIEDD stated that “overall, staff are of the position that the subject minor variance applications as submitted meet the four tests as provided for under the Planning Act.” As well as PIEDD had “no concerns” with the application for MV (Exhibit 2, Tab 3).

Planning Evidence

17Ms. Culley, who provided expert planning evidence under Summons, testified that this neighbourhood is in transition. Mr. Wright, a Land Use Planner, agreed that it is an area experiencing intensification. This is occurring, with two homes frequently being built on four lots, whereas previously there was a single home on the four lots. Mr. Wright opined that this was not a “transition” as the lot fabric in the original plan of subdivision is retained, however, the neighbourhood is undergoing intensification.

18The planning practice and policy has changed significantly since many of the original homes were built. The direction of planning policy, mandated through the Planning Act and the Provincial Policy Statement, 2020 (“PPS”) and at the local level through the Official Plan (“OP”), all support intensification within the urban boundary.

19The PPS encourages greater intensification within urban areas that have established infrastructure and especially in the areas that are in close proximity to transit and commercial opportunities. Both planners stated that the Subject Lands meet all of these criteria, as they are within walking distance of current and future rapid transit and shopping. The proposed development will “have regard to” a number of provincial interests, such as increasing housing supply in a manner that is orderly, sustainable and in the appropriate area for growth and development.

Issue

20The main issue in this appeal is whether the proposed variances meet the four tests under s. 45(1) of the Planning Act. Planning evidence was provided by the two planning witnesses in support of the MV application with respect to all four tests.

Does the MV Application maintain the intent and purpose of the OP?

21Ottawa’s Official Plan has two key categories of policies that are relevant to the consideration of minor variance applications in low-rise residential areas. The first policy area is the Official Plan’s support for intensification. The second policy area is the compatibility policies that require that new development (including infill and intensification) must be sensitive to the existing neighborhood character. There are several Official Plan policies that expressly link intensification and compatibility. Only infill and intensification which “fits-well” and is compatible with the existing community will conform to the purpose and intent of the Official Plan read as a whole. This message was repeated frequently in the oral testimony of Mr. Wright and this planning opinion was also advanced by Ms. Culley of the City of Ottawa, who confirmed that the City considered the Official Plan’s policies on intensification and compatibility fulfilled by the proposed development.

22Mr. Wright has noted that this site is an excellent site for intensification due to its proximity to transit, shopping and restaurants. He also noted that if the minor variances were approved, the intensification would also be compatible with the existing community. This is because the proposed variances and built form enhance the established community, “fits well” within its context, as mandated by section 2.5.1 of the OP and would not result in adverse impacts on surrounding properties. The Tribunal accepts this evidence and finds that the MV application meets the intent and purpose of the OP since the proposed intensification development is compatible with the neighbourhood.

Does the MV Application maintain the intent and purpose of the OP?

23The MV application requests reductions in the Lot Width, Lot Area, Garage Setback and Rear Yard Setback below the minimum standards set out in the ZBL.

24In their testimony both witnesses, Ms. Culley and Mr. Wright, stated that the MV sought with respect to Lot Width and Lot Area is in keeping with the lot fabric in the neighbourhood as adjusted by recent developments.

25Ms. Culley specifically noted that out of 25 properties surrounding the Subject Lands, six properties have lot widths below the minimum required, ranging from approximately 15.21 metres (“m”) (94 & 96 Granton Avenue) to 19.02 m (82 Granton Avenue).

26She also pointed out that there are eight properties in the surrounding area with lot areas below the minimum required by the ZBL, ranging from approximately 417.21 square metres (“sq m”) (94 Granton Avenue) to 573.75 sq m (57 Granton Avenue).

27In addition, Mr. Wright noted four additional properties on Granton Avenue that have been granted similar variances by the COA in the last few months.

28Based on this testimony, the Tribunal finds that the reduced minimum lot widths and lot areas for both 70 and 72 Granton Avenue, will maintain the intent and purpose of the ZBL since they are consistent with other reductions granted in the Neighbourhood for other properties.

29When it comes to Garage Setback, Section 139 (3) of the ZBL details the applicable front-facing garage provisions. The intent of these provisions is to have the principal entrance be more prominent than the attached garage and to ensure that the entrance is visible from the street. While prominence can be measured numerically, it can also refer to what is more noticeable. While the proposed principal entrance of 72 Granton Avenue is not physically the closest to the front lot line, as proposed it appears more prominent due to the wide porch. The principal entrance for 70 Granton Avenue will be more prominent due to the materials that will be used that will accentuate the front door rather than the garage.

30Mr. Wright’s oral testimony identified that there were a number similarly styled homes within the neighbourhood which had a visually prominent front door despite the garage being physically closer to the lot line. He noted that a number of properties had a similar built form, with a front door that was setback more than the garage, yet the principal entrance still appeared to be the prominent or dominant feature of the home. He specifically noted 106 and 108 Granton Avenue as examples. Based on this testimony, the Tribunal finds that the reduced minimum garage setbacks for 70 and 72 Granton Avenue, will maintain the intent and purpose of the ZBL since the main entrances on both properties will be more prominent and be the focal point visually from the street.

31The intent of the minimum Rear Yard setback provision of the ZBL is to reduce potential privacy issues and loss of open space. The Subject Lands 70 Granton Avenue requires a reduced setback for a small area of the rear wall. The planning evidence identified that privacy and open space will not be impacted negatively by this reduced setback since the property will continue to be separated from the abutting property to the rear by a cedar hedge running along municipal land designated for a laneway. The Tribunal finds that the minor variance sought for the reduction in the minimum rear yard setback maintains the intent and purpose of the ZBL since privacy and open space will not present an issue.

Is the MV Minor?

32The planning evidence identified that no unacceptable adverse impacts are expected from the proposed development. In response to specific questions from the Tribunal regarding the drainage concerns identified by the CVCA, Mr. Wright identified that the City’s engineering department did not identify that any drainage issues are expected if the MV application is granted. The Tribunal accepts this evidence and finds that the requested MV is in fact minor.

Is the MV Desirable?

33The planners both identified that the MV application will result in the construction of two new homes and intensify the use of the Subject Lands. This development is desirable for the Subject Lands and is consistent with the higher level policy documents, like the Planning Act, PPS, and OP which promote intensification in urban areas where services are already present. The Tribunal finds that the MV is desirable.

34The MV application meets the four tests of s. 45(1) of the Planning Act and thus the Tribunal will allow the appeal of the COA decision and authorize the variances.

ORDER

35The Tribunal orders that the appeal is allowed and the variances to By-law No. 2008-250 are authorized.

“P. Tomilin”

P. tomilin

MEMBER

“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.