Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 03, 2022
CASE NO(S).: OLT-21-001229
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Citymaker Homes
Subject: Consent
Property Address/Description: 86, 88, 90 Hamilton Avenue
Municipality: City of Ottawa
Municipal File No.: D08-01-21/B-00100
OLT Case No.: OLT-21-001229
OLT Lead Case No.: OLT-21-001229
OLT Case Name: Citymaker Homes v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Citymaker Homes
Subject: Consent
Property Address/Description: 86, 88, 90 Hamilton Avenue
Municipality: City of Ottawa
Municipal File No.: D08-01-21/B-00101
OLT Case No.: OLT-21-001230
OLT Lead Case No.: OLT-21-001229
OLT Case Name: Citymaker Homes 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: Citymaker Homes
Subject: Minor Variance
Variance from By-law No.: 2008-250
Property Address/Description: 86, 88, 90 Hamilton Avenue
Municipality: City of Ottawa
Municipal File No.: D08-02-21/A-00105
OLT Case No.: OLT-21-001231
OLT Lead Case No.: OLT-21-001229
OLT Case Name: Citymaker Homes 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: Citymaker Homes
Subject: Minor Variance
Variance from By-law No.: 2008-250
Property Address/Description: 86, 88, 90 Hamilton Avenue
Municipality: City of Ottawa
Municipal File No.: D08-02-21/A-00106
OLT Case No.: OLT-21-001232
OLT Lead Case No.: OLT-21-001229
OLT Case Name: Citymaker Homes v. Ottawa (City)
Heard: March 2, 2022, by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Citymaker Homes (“Applicant”) | Roberto Aburto |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN AND D. CHIPMAN ON MARCH 2, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant made applications for consent to sever and minor variances in order to sever the lot located at 86 Hamilton Avenue in Ottawa (“Site”) into two separate parcels of land in order to construct a new long semi-detached dwelling on the severed parcel. In addition, the Appellant seeks consent for the creation of easements to permit a non-accessory use. (Collectively, the “Applications”). Planning Staff had no concerns regarding the Applications but Committee of Adjustment (“COA”) for the City of Ottawa (“City”) refused the Applications. The Applicant appealed both Applications to the Tribunal (the “Appeals”) pursuant to s. 53(19) for the consent and s. 45(12) for the minor variance.
2The City resolved to take no position on the Appeal but did attend the hearing with the request that if the Tribunal approved the Applications that the conditions attached as Schedule A be attached to the Order.
3The Applicant brought forward three witnesses, Brian Casagrande, a Land Use Planner, and James Colizza, an Architect and Urban Designer. Both were qualified by the Tribunal. Craig Hamilton, a Planner for the City appeared under summons and was qualified by the Tribunal as a Land Use Planner.
4The Tribunal received no requests for status as Participant in the hearing however, in its deliberations and this decision weighed the comments received by the City from the Hintonburg Community Association on June 12, 2021, accordingly.
5The Tribunal had available the Applicant’s Combined Book of Documents and Book of Authorities.
BACKGROUND, SUBJECT PROPERTY, NEIGHBOURHOOD, PROPOSED CONSENT AND REQUESTED VARIANCE
Site
6The Site is a rectangular residential lot approximately 483.21 square meters (“m2”) in size, in an established residential area in the City, currently containing a 2-storey single detached dwelling on the northern portion of the Site. The Site has a frontage of 15.23 meters (“m”) on the side fronting Hamilton Avenue and is 31.73 m width.
7The Site is designated General Urban Area in the City of Ottawa Official Plan (“OP”) and is within the R4UB of the City’s Zoning By-law No. 2008-250 (“ZBL”).
8The Site is located within a mature neighbourhood in the City, which contains a diverse lot fabric without consistent pattern, a variety of housing types including single and semi, old homes as well as new builds and a variety of parking layouts including location and number.
Proposed Severance and Construction
9The Applicant has provided a draft site plan, which lays out the proposed severance for which consent is sought as well lays out the proposed easement for parking (“Site Plan”). The Site will be divided with the southern part representing the severed lot (“Severed Lot”) and the northern part being the retained lot (“Retained Lot”).
10The Severed Lot will have a frontage of 7.5 m and a total area of 225 m2. The northern boundary of the Severed Lot will be a rectangular shape. The Retained Lot will be left with a frontage reduced to 10 m and have a total remaining area of 300 m2. The Retained Lot shall also be of rectangular shape.
11The Site Plan proposes a three (3)-storey long semi-detached dwelling with one unit fronting onto Hamilton Avenue with an entry at the front and the other located directly behind the first on the property with an entry in the rear.
12In addition to the proposed severance, Mr. Colizza demonstrated through Site Plan the proposed parking easement to operate between the Severed and Retained Lot (“Parking Easement”). The Parking Easement allows for the consolidation of parking at the rear of the Retained Lot, which the Applicant asserts is the preferable alternative of placing parking at the front of both lots with front-facing garages. There are a total of three (3) parking spots proposed, one for each dwelling on the Site.
Variances
13The Applicant is seeking five (5) variances in its Application (“Variances”):
a) To permit a reduced lot width of 7.11 m, whereas the By-law requires a minimum lot width of 7.5 m.
b) To permit a reduced northerly side yard setback of 0.05 m, whereas the By-law requires a minimum side yard setback of 0.6 m. 88 & 90 Hamilton Avenue (Parts 1, 2 & 3 on a Draft 4R-Plan)
c) To permit a reduced lot width of 8.12 m, whereas the By-law requires a minimum lot width of 10 m.
d) To permit a reduced lot area of 257.7 square m, whereas the By-law requires a minimum lot area of 300 square m.
e) To permit a non-accessory use for a proposed parking space to be located on the abutting property over Parts 6 & 7 for the benefit of the Owners of Parts 1, 2 & 3, whereas the By-law states that an accessory use is permitted in any zone only when it is on the same lot as the principal use to which it is accessory and exists to aid the principal use.
ISSUES
Consent Appeal – s. 53(19) of the Planning Act
14In the determination of these appeals pursuant to s. 53(19) of the Planning Act (“Act”) and deciding whether the proposed provisional consent should be granted, with such conditions that may be required, the Tribunal must consider and decide the following issues:
a. the Tribunal must address the threshold question in accordance with s. 53(1) of the Act and be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and can proceed by way of application for consent. Given the circumstances of the single consent in this case, that issue does not apply;
b. the Tribunal must then, under s. 53(12), have regard for the criteria set out in s. 51(24) of the Act which includes: that the proposed consent has regard to the effect that the consent will have on matters of provincial interest set out in s. 2 of the Act; whether the proposed consent is premature or in the public interest; and whether the consent conforms to the OP; the suitability of the land for the purposes for which it is to be subdivided; and the dimensions and shapes of the proposed lot; and the adequacy of utilities and municipal services.
c. as required by s. 3(5) of the Act the Tribunal must, in its decision, be satisfied that the approval of the proposed provisional consent is consistent with the Provincial Policy Statement 2020, (“PPS”) and conforms to such Provincial Plans that may be applicable, which in this case is the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended (“Growth Plan”);
d. the Tribunal must also have regard to the decision of the approval authority relating to the consent application that are before the Tribunal and the information and material that was before the approval authority in making the decision;
e. the Tribunal may, under s. 53(12) also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed consents, and such conditions may include such requirements as are set out in s. 51(25) of the Act; and
f. generally, the Tribunal will decide whether the giving of provisional consent to the Applicants, with any required conditions, represents good planning in the public interest.
Minor Variance Appeal – s. 45(1) of the Planning Act
15With respect to the application for the minor Variances, the issue before the Tribunal is whether the requested Variances meet the four tests set out in s. 45(1) of the Act and should be authorized by the Tribunal. The Tribunal must accordingly be satisfied, in this appeal, that the Variances that would permit the long semi-detached structure on the lot created by the severance as well as the non-accessory use of the Parking Easement, if granted: (a) maintain the general intent and purpose of the OP; (b) maintain the general intent and purpose of the ZBL; (c) are minor, and (d) are desirable for the appropriate use and development of the Site.
16Additionally, the Variances must also be consistent with the PPS, and conform to the Growth Plan under s. 3(5) of the Act. The Tribunal must also have regard to matters of Provincial interest and to any decision made by the COA, as well as all information and material that the COA considered in making its decision.
17Upon reviewing the evidence received and the reasons cited for refusal by the COA, it was evident to the Tribunal that within the issues and concerns, the significant increase in density, the appropriateness of the parking layout, and concern regrading trees on the property were of main concern.
ANALYSIS AND FINDINGS
18The expert planning and architectural evidence presented by the Applicant before the Tribunal is uncontroverted and unchallenged.
19For the reasons that follow, and upon the various findings set out herein, the Tribunal determines that the Appeal under s. 53(19) should be allowed and provisional consent should be given for the proposed Consent, and further, that the minor Variances requested should be authorized and that appeal pursuant to s. 45(12) allowed.
Provincial Policy Statement and Growth Plan
20Based upon the whole of the evidence, including the uncontroverted planning opinions provided by Messrs. Casagrande and Hamilton the Tribunal finds that in all respects both the application for consent and for the Variances are consistent with the policies within the PPS and the policies within the Growth Plan.
21As a modest infill development does not raise significant concern from PPS and Growth Plan. The Applications are an example of intensification in a growth area and its location within an existing subdivision with sufficient servicing capacity makes this an efficient development.
The Consent Application – s. 51(24) Criteria
22Messrs. Casagrande, Colizza and Hamilton conclude that that the proposed severance and creation of the additional infill lot and Parking easement, have appropriate regard to the listed criteria set out in s. 51(24) of the Act.
23Regarding the suitability of the land for the proposed use and dimensions and shape of the severed and retained lots, the Applicants uncontroverted evidence demonstrates that the existing neighbourhood character and varied lot patterning are supported of the proposed severance and suitable for the creation of an additional long semi-detached dwelling. The Tribunal would agree, having examined various photos and plans presented by Mr. Colizza, which demonstrated that the neighbourhood has no consistent lot pattern with a variety of housing types, lot sizes and parking layouts. The severance will, as discussed further below, conform to the OP and in that respect has regard for s. 51(24)(c).
24Regarding the Parking Easement, Mr. Hamilton noted that City Staff raised no concerns regarding parking existing on the Site or the Parking Easement arrangement, however street scape character analysis must be considered. The Tribunal finds that the proposed easement is appropriate having regard to the evidence of both Mr. Casagrande and Mr. Colizza demonstrating that the Parking Easement is appropriate. Despite there being no requirement for parking within the ZBL, it is permitted and suitable. The location of the parking in the rear of the Site is permitted as of right by the ZBL and furthermore is desirable as it matches the neighbourhood pattern.
25Upon the whole of the evidence and upon additional findings below regarding conformity with the OP and the uncontroverted evidence presented, the Tribunal finds that the proposed severance has regard to, and does not conflict with, the criteria set out in s. 51(24) of the Act.
City of Ottawa Official Plan
26The Tribunal has reviewed and accepted the unchallenged evidence of Mr. Casagrande, who is of the opinion that the Application conforms with the OP. The Site is located within the General Urban Area, an area where the OP supports intensification where it will complement the existing pattern, scale and planned function of an area. As previously demonstrated by the evidence of Mr. Colizza.
27In addition, the Site is located within 700 m of the Tunney’s Pasture Rapid Transit Station as well within 250 m of a bus stop. Despite the OP’s trigger for intensification within transit friendly locations being 600 m, evidence has demonstrated that the Site is within an appropriate area to capitalize upon existing transit.
28With regards to development of a mature neighbourhood in a General Urban Area, the OP supports intensification where it will complement the existing pattern, scale and planned function of an area, which the Application does as demonstrated by Mr. Colliza.
29With regards to the Parking Easement, the OP has regard of character of an area for matters such as vehicular parking when considering intensification. The Applicant’s request for Parking Easement has regard for the OP, the proposed development is seeking three (3) parking spots for three (3) residential units and all parking is located to the rear of the Site, a measure that both reduces visual impact as well matches the pattern of the neighbourhood.
Summary – Severance
30Having considered the Provincial policy concerns, matters of Provincial interest set out in s. 2 of the Act and the criteria set out in s. 51(24), the Tribunal finds that the proposed severance has due regard for matters of Provincial interest, is consistent with the PPS, conforms to, or is not in conflict with the Growth Plan and the OP and represents good planning in the public interest.
Variance Application – the Four Tests s. 45(1)
General Intent and Purpose of the Official Plan
31For reasons set out above, the Tribunal has considered the evidence and based on the uncontroverted opinion evidence of the Applicant, the Tribunal is satisfied that the requested Variances, with the severance, meet the general intent and purpose of the OP.
General Intent and Purpose of the City’s Zoning By-law
32Both Mr. Casagrande and Mr. Hamilton opine that the proposed Variances meet the general intent and purpose of the ZBL which permits the proposed residential land use, including the build form of long semi-detached dwellings and provides for performance standards, which Mr. Casagrande has demonstrated are met with the exception of requirement for a lot area of 300 m2 whereas the Severed Lot shall have an area of 257.7. Of particular note, from the ZBL, is the fact that the Site’s zoning as R4UB permits a low-rise apartment.
33Based on the opinion evidence provided with respect to varied lot pattern within the neighbourhood, despite the reduced lot size the Variances will nevertheless maintain the general intent and purpose of the Zoning By-law.
34The Tribunal accordingly finds that this test for the Variances has been satisfied.
Variance is Desirable for the Appropriate Development of Land
35Mr. Casagrande opined that the Variances are desirable for the appropriate development of the land. The benefits of allowing for the infill lot and construction of a long semi-detached dwelling on the Severed Lot aid in Provincial goals regarding intensification and take advantage of existing municipal services and infrastructure.
36Although not participants in this hearing, concerns have been raised by the Hintonburg Community Association regarding protection of mature trees on the site. The Applicant has demonstrated that of the five (5) trees of concern identified on the Site, only one cannot be preserved and it is an invasive species. In addition, the Applicant’s Site Plan demonstrates that the remaining four (4) trees will be retained, and additional trees will be added. An additional concern raised concerned excess parking, which a review of the ZBL has determined is not the case as the proposed parking spots are permitted.
37The Tribunal accordingly finds that this test for Variances has been satisfied.
Variance is Minor
38Both Mr. Casagrande and Mr. Hamilton agree that the proposed Variances are minor. The Tribunal considers that the proposed Variances are numerically minor, particularly in the context of the neighbourhood lot pattern where there are numerous lots with varying dimensions and layouts.
39The Tribunal considered if there existed an undue adverse impact, should the requested Variances be granted. The Tribunal acknowledges the concerns raised by the COA regarding intensification and lack of amenity space. As previously noted, the Site is zoned R4UB, which as of right, permits the construction of a low-rise apartment building with up to 12 units. This permitted build form would in fact lead to greater concerns regarding intensification and lack of amenity space as Mr. Colliza was able to demonstrate through the use of renderings demonstrating the effect a low-rise apartment building would have on the Site and neighbourhood including increase building mass, less overall open space and a larger rear yard parking lot. In comparison the proposed development which maintains the existing residential dwelling and adds additional residential dwellings well under the permitted density of the ZBL.
40The Tribunal accordingly finds that this test for Variances has been satisfied.
Summary – Variances
41Having considered Provincial policy concerns, matters of Provincial Interest and the criteria set out in s. 45(1) of the Act, the Tribunal finds that the proposed Variances meet the general intent and purpose of both the OP and the ZBL, is desirable and appropriate for the land and overall minor in nature.
SUMMARY
42For the reasons indicated in the analysis above, and upon various findings made in this Decision, the Tribunal will allow the Application and give provisional consent subject to the City’s conditions.
43While the COA and the Hintonburg Community Association had in the past raised concerns, at the Hearing itself the Tribunal heard only from the uncontroverted and uncontested evidence provided by the expert witnesses of the Applicant.
44The Tribunal finds that both the Consent and Minor Variance Applications are consistent with the PPS, conform to the Growth Plan and have regard to Provincial interests set out in s. 2 of the Act.
ORDER
45With respect to the Application for Consent, and the appeal pursuant to s. 53(19) of the Act, the Tribunal hereby orders that that the appeal is allowed, and provisional consent is to be given, subject to the Conditions set out in Schedule A to this Order.
46With respect to the Minor Variance Application, the Tribunal orders that the appeal pursuant to s. 45(12) of the Act is allowed and the following variances are authorized, subject to the Conditions set out in Schedule A to this Order:
a. To permit a reduced lot width of 7.11 metres, whereas the By-law requires a minimum lot width of 7.5 metres.
b. To permit a reduced northerly side yard setback of 0.05 metres, whereas the By-law requires a minimum side yard setback of 0.6 metres. 88 & 90 Hamilton Avenue (Parts 1, 2 & 3 on a Draft 4R-Plan)
c. To permit a reduced lot width of 8.12 metres, whereas the By-law requires a minimum lot width of 10 metres.
d. To permit a reduced lot area of 257.7 square metres, whereas the By-law requires a minimum lot area of 300 square metres.
e. To permit a non-accessory use for a proposed parking space to be located on the abutting property over Parts 6 & 7 for the benefit of the Owners of Parts 1, 2 & 3, whereas the By-law states that an accessory use is permitted in any zone only when it is on the same lot as the principal use to which it is accessory and exists to aid the principal use.
“D. Chipman”
D. CHIPMAN
MEMBER
“S. Mann”
S. MANN
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.
SCHEDULE A – CONDITIONS
That the Owner(s) provide evidence that payment has been made to the City of Ottawa for cash-in-lieu of the conveyance of land for park or other public recreational purposes, plus applicable appraisal costs. The value of land otherwise required to be conveyed shall be determined by the City of Ottawa in accordance with the provisions of By-Law No. 2009-95, as amended.
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.
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.
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 Development Review Manager of the relevant Branch within 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 Development Review Manager of the relevant Branch within 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.