13388201 Canada Inc. v. Ottawa (City), 2022 CanLII 5474

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CORRECTION NOTICE

OLT CASE NO(S).:

OLT-21-001012

DECISION ISSUE DATE(S):

January 28, 2022

CORRECTION NOTICE ISSUE DATE:

March 08, 2022

RE: 13388201 Canada Inc. v. Ottawa (City)

Correction to: Include co-counsel’s name to the Appearances Section

Originally:

Corrected to:

Ottawa Gatineau Hotel Association Eric Gillespie

Ottawa Gatineau Hotel Association Eric Gillespie Yasmeen Peer

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

January 28, 2022

CASE NO(S).:

OLT-21-001012

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant:

13388201 Canada Inc.

Subject:

By-law No. 2021-105

Municipality:

City of Ottawa

OLT Lead Case No.

OLT-21-001012

OLT Case No.

OLT-21-001012

OLT Case Name:

13388201 Canada Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant:

13388201 Canada Inc.

Subject:

By-law No. 2021-106

Municipality:

City of Ottawa

OLT Lead Case No.

OLT-21-001012

OLT Case No.

OLT-21-001013

OLT Case Name:

13388201 Canada Inc. v. Ottawa (City)

Heard:

January 10, 13 and 14, 2022 by video conference

APPEARANCES:

Parties

Counsel

13388201 Canada Inc.

Jacob Polowin

City of Ottawa

Emma Blanchard Timothy Marc

Ottawa Gatineau Hotel Association

Eric Gillespie

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The short-term rental (“STR”) of residential units has become a popular form of accommodation for the travelling public in recent years. After extensive research and consultation, the City of Ottawa (“City”) passed by-laws to regulate STRs. This Decision addresses an appeal to the City’s zoning requirements for STRs.

2The primary issue is whether STRs should be allowed as “dedicated” units, being the STR of premises that are not the principal residence of the owner, within multi-use zones that already allow both hotels and residential units. As elaborated in this Decision, the Tribunal dismisses the appeal and upholds the City’s STR zoning regulations, primarily for reasons of implementing Provincial and City housing policies related to supply, affordability and compatibility.

3This Decision also address the secondary issues raised on appeal, being: legal non-conforming (“LNC”) rights, in part involving the related City By-law No. 2021-104 which is not before the Tribunal for adjudication; and one STR zoning provision related to dwelling appearance and adverse effects. Again, for reasons set out below, the Tribunal finds that these issues do not warrant alterations to the provisions passed by the City.

4If the appeal is dismissed, the City requested that its temporary use provisions for STRs commence at the date of Decision, rather than on their original date of passing. The Tribunal refuses this request in order to limit the de facto period of the temporary use provisions to a maximum of three years.

THE APPEAL

5The City passed two Zoning By-law Amendments (“ZBA(s)”) to regulate STRs across the City. ZBA No. 2021-105 (“105”) amends the City Zoning By-law No. 2008-250 (“ZBL”) under s. 34 of the Planning Act (“Act”) to incorporate land use definitions associated with STRs. ZBA No. 2021-106 (“106”) amends the ZBL for a temporary period of three years under s. 39 of the Act to permit and regulate STRs. At the end of this trial period, the City anticipates passing a further ZBA for the ongoing regulation of STRs, with potential adjustments arising from its three years of experience.

613388201 Canada Inc., operating as Ottawa Short Term Rental Association Inc. (“OSTRA”), appealed the ZBAs to this Tribunal asserting that they contained ultra vires provisions related to LNC rights and regulating land use based on duration of stay. For the hearing, OSTRA refined and clarified its issues to the following:

1. STRs without a principal residence (“PR”) requirement (known as “dedicated” STRs), should be allowed in mixed-use zones that permit both hotels and dwellings;

2. The regulatory regime for STRs unlawfully restricts LNC rights for existing dedicated STRs;

3. In the alternative to the above issues, four specific properties identified in evidence should be recognized as LNC uses and therefore lawful under the ZBAs; and

4. Section 2(5) of ZBA 106, which attempts to regulate the appearance and adverse effects of STRs, is not a proper zoning requirement and should be deleted.

NOTICE and PARTIES

7The City circulated the Notice of Hearing, and on consent of the Parties, the City’s Affidavit of Service was marked as Exhibit 1 (“Ex. #”).

8The Ottawa Gatineau Hotel Association (“OGHA”) filed a request for Party status in advance of the hearing. Without objection from the statutory Parties, the Tribunal added OGHA as a Party. OGHA participated in the City’s public consultation process, supports the ZBAs, and proffered an expert for this hearing.

EVIDENCE

9With reference to a lengthy Joint Document Book (Ex. 2) and additional Exhibits, the Tribunal received oral testimony from the following affirmed witnesses:

For OSTRA:

• Allan Ramsay, Registered Professional Planner (“RPP”), qualified to provide opinion evidence in land use planning; and

• Genevieve Walton, a Director of OSTRA and owner of Short and Suite BnB Inc., being a property management company serving STR sites owned by others;

For the City:

• Marika Atfield, RPP, qualified to provide opinion evidence in land use planning; and

• Saide Sayah, RPP, qualified to provide opinion evidence in land use planning, housing policy and the provision of housing;

For OGHA:

• David Wachsmuth, PhD, RPP, qualified to provide opinion evidence in land use planning and urban governance.

LEGISLATIVE TESTS

10In making a decision under the Act with respect to these appeals, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act and must have regard to the decision of the approval authority and the information considered by the approval authority under s. 2.1(1) of the Act. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) per s. 3(5) of the Act, and the ZBAs must conform with the City of Ottawa Official Plan (“OP”) per s. 24(1) of the Act. On the basis of these tests, the Tribunal may rule on whether the ZBAs constitute good land use planning in the public interest.

11In support of their positions, the planning witnesses referred to several provincial interests from s. 2 of the Act, including: (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing, including affordable housing; (n) the resolution of planning conflicts involving public and private interests; (p) the appropriate location of growth and development; and the first two subsections of (r) the promotion of built form that is (i) well-designed and (ii) encourages a sense of place.

12Several key policies of the PPS were advanced in support of the planning opinions, with emphasis on those sections paraphrased as follows:

1.1.1 Sustaining healthy, liveable and safe communities by: a) promoting efficient development and land use patterns, b) accommodating an appropriate affordable and market-based range and mix of residential types, and e) integrating land use planning, growth management, transit, intensification and infrastructure planning to achieve cost-effective development patterns, optimize transit and minimize land consumption and servicing costs.

1.1.3.2 The land use patterns in settlement areas shall be based on densities and a mix of land uses which a) efficiently use land and resources; and b) are appropriate for, and efficiently use, infrastructure and public service facilities.

1.1.3.3 Appropriate locations and opportunities are to be identified for transit-supportive development, “accommodating a significant supply and range of housing options through intensification and redevelopment … taking into account existing building stock or areas …”

1.4.1 and 1.4.3 Provide for an appropriate range and mix of housing options and densities to meet projected requirements by facilitating: 1. All housing options required to meet the social, health, economic and well-being requirements of current and future residents.

1.7.1 Long-term economic prosperity should be supported by: b) responding to dynamic market-based needs and provide necessary housing supply and range of housing options for a diverse workforce; d) maintaining and enhancing the vitality and viability of downtowns and mainstreets; and h) providing opportunities for sustainable tourism development.

6. The PPS definitions include the term housing options, defined as a range of housing types, “such as, but not limited to” various dwelling types, and also includes “a variety of housing arrangements and forms” including, among many examples given, “housing related to employment, institutional or educational uses.”

13The Planners also addressed relevant OP policies, with a focus on those designations where OSTRA considers dedicated STRs to be appropriate. Three designations – Central Area; Mixed Use Centres and Town Centres; and Mainstreets – all promote higher density and intensification in mixed-use, compact development along or near transit corridors.

14These designations are guided by the OP’s Strategic Directions of directing projected growth to key locations with a mix of uses, transit service, and pedestrian convenience. For example, the Central Area calls for a broad range of uses supporting activities at all hours of the day and night, year-round, including business and tourism. Mixed Use Centres are a critical element for meeting the City’s growth needs, where higher densities can be achieved. Mainstreets similarly seek higher density and mixed-use development in keeping with their character.

15The Urban Design policies of the OP enable compatible development through appropriate design for each site and its surrounding area. The Affordable Housing policies of the OP set out the need and benefits of a range of housing options for a healthy, liveable community.

16The Centretown Secondary Plan identifies its area as the City’s most diverse and vibrant mixed-use community, seeking a range of dwelling types and sizes, including for families, seniors, and persons with special needs, with a focus on the Catherine Street corridor.

ISSUES AND FINDINGS

STR in Mixed-Use Zones

17The ZBAs establish the principal residence (“PR”) requirement for a STR. Section 2(a) of ZBA 105 defines STR as “…the principal residence of the operator” (Ex.2, p.7). Section 2 of ZBA 106 permits a STR “in any zone as a temporary secondary use within the operator’s principal place of residence” (Ex.2, p.11). These provisions apply in all zones affected by the Residential Provisions of the ZBL, including in mixed-use and commercial zones which permit residential uses.

18As an aside, the Parties are aware of the incorrect spelling of “principle” residence in three definitions in ZBA 105 which warrant correction to “principal” residence. This housekeeping change is addressed in the Order.

19OSTRA argues that dedicated STRs should be allowed in zones permitting hotels for a net benefit to the City. Such permission would encourage residential development, with an insignificant, if any, effect on housing prices, given the small number of new STRs anticipated over the coming years as compared to a substantial increase in new housing units.

20The City responds that its approach constitutes a balance between allowing STRs in all residential areas while regulating their intensity and reducing negative effects through the PR requirement. With reference to past Decisions of the Tribunal establishing that dedicated STRs are commercial uses, the City argues that with housing supply falling behind demand, dedicated STRs divert additional units from residential use, especially for rental units, and contribute to rising housing prices. Mixed-use areas are where residential intensification is directed, with emphasis on rental housing, and therefore warrant protection from the loss of units to the commercial function of dedicated STRs.

21OGHA focusses on the research of Dr. Wachsmuth, emphasizing that despite the current decline in STRs during the pandemic, the commercialization of STRs as dedicated units is expected to continue increasing, post-pandemic, as a proportion of all STRs in downtown areas. A small reduction at the margins of the existing low housing supply can result in higher prices, resulting in housing being less available and less affordable. OGHA also emphasizes that dedicated STRs negatively affect neighbours and neighbourhoods from their commercial characteristics, even within mixed-use areas.

22The Tribunal prefers the evidence presented by the City and OGHA over that of OSTRA. The requested dedicated STRs are addressed through two effects: housing supply and compatibility.

Housing Supply

23Mr. Ramsay recommends that the PR requirement not apply within mixed-use and commercial zones where both hotels and residential uses are permitted. He refers to the report of Maclaren Municipal Consulting Inc. (“Maclaren”), retained by the City, that involved extensive research, review and public consultation resulting in detailed recommendations to the City for STR regulations. It recommended that “Ottawa should continue to allow both commercial and principal resident operation of short-term rentals in zones where hotels are permitted” (Ex.2, p.347). Mr. Ramsay emphasizes that this recommendation was the only substantive issue, of many within the report, that was not implemented through these ZBA.

24In keeping with the Maclaren report, Mr. Ramsay recommends that the PR requirement not apply in the City’s downtown and corridor zones, being the zones known as AM, GM, MC, MD, TD and TM (Ex.2, p.348). These zones implement the OP’s mixed-use designations which permit hotels and residential uses, along with a wide range of commercial and institutional uses. He opines that facilitating STR in these areas, by allowing dedicated STR without the PR requirement, is consistent with and advances several PPS policies, including fostering a range of housing options, and supporting tourism. These zones represent mixed-use areas and corridors where dedicated STR are not unlike individual or small hotels, providing an efficient and compatible use of accommodation for business travellers and tourists, all in support of mainstreets and transit.

25Mr. Ramsay highlights the PPS definition of housing options, with its wide range of housing arrangements and forms, including specific reference to housing for employment, institutional and educational uses. He considers business travellers or diplomats as examples of housing needs which can be supplied by dedicated STRs. He considers dedicated STRs to be the same as hotels in their use and impacts, including providing temporary accommodation for the travelling public, the coming and going of occupants and service providers, parking, and reliance on and support for area businesses.

26Mr. Ramsay maintains his overall conclusion that dedicated STRs represent a suitable use in mixed-use areas, but acknowledges in cross-examination the potential effects on housing supply. Mr. Ramsay accepts the PR requirement within residential zones, and agrees that it results in an ancillary or secondary use to the primary residential use of a dwelling unit. He agrees that tourist accommodation for less than 30 days is not considered housing, and that longer-term stays, such as for business or government persons, does constitute housing, albeit still temporary. He further acknowledges that the designations suggested for dedicated STRs are those in which the OP directs residential intensification, and that any dedicated STRs in those areas would remove those units from the housing supply. Mr. Ramsay accepts the ongoing need for more rental housing and affordable housing in Ottawa, like many major centres, while not being aware of a similar level of need for visitor accommodations.

27The Tribunal finds that the reasons for prohibiting dedicated STRs in residential zones, as agreed to by all witnesses, apply equally to the residential component of mixed-use zones. Residential uses located within mixed-use or commercial zones still constitute residential uses for which the supply and compatibility policies of the PPS and OP apply.

28On supply, the Tribunal accepts the evidence of Dr. Wachsmuth and Mr. Sayah which is largely uncontroverted. The City’s pre-pandemic STR listings of around 2,000 are expected to return post-pandemic and to continue growing, predominantly in downtown areas, where up to 3% of all housing is used for dedicated STRs. The pandemic demonstrates the potential return of housing units to the long-term market given that current STR listings are 50% of their pre-pandemic numbers. For example, Ms. Walton cites her management of dedicated STRs that revert to longer-term housing based on season or the pandemic, with reference to monthly or longer stays of executives, diplomats or students. Dr. Wachsmuth’s data show increasing commercialization, with 60% of STR revenue accruing to operators of multiple STRs. Again, Ms. Walton exemplifies this trend as she manages and provides all manner of services to some 100 STR units owned by others.

29Dr. Wachsmuth explains the effect on housing supply. Business enterprises realize greater potential returns from vacationers and short-term business travellers than from long-term tenants. The result is a decreased supply of rental housing and upward pressure on residential resale value and rental rates. Both Dr. Wachsmuth and Mr. Sayah advise that a small effect at the margins of housing supply can result in higher housing and rental costs. The Tribunal finds this understanding of market effects as fundamental. In an accepted, existing tight housing supply, any further pressure in demand, however minimal, can result in a disproportionate increase in cost. In summary, a slight change in supply can significantly affect cost.

30When cross-examined, Dr. Wachsmuth and Mr. Sayah agree that the anticipated levelling off of STR growth in coming years will represent a very small proportion of new annual housing units. However, Dr. Wachsmuth notes that appropriate regulations will return units to the rental market and avoid future conversions, noting that in Vancouver, one-quarter of the dedicated STRs reverted to the long-term market after by-laws took effect.

31Given the above, Mr. Sayah stresses the need to moderate the market, where possible, in pursuit of Provincial and City policies for housing availability and affordability. With the City’s record low supply of rental housing, the more affordable unit types, such as rooming houses and secondary suites are susceptible to conversion to dedicated STRs. In addition, Mr. Sayah and Ms. Atfield emphasize that the residential component of mixed-use areas is intended to provide housing close to commerce, employment and transit. Mixed-use areas are also for business, but not within the residential component. Dwellings warrant suitable separation and distinction to support the supply of housing, especially rental apartments and rented condominiums, for long-term use. As summarized by Ms. Atfield, building permits are used to track additions to the housing supply, but if converted to a dedicated STR as OSTRA requests, such a unit is no longer available for housing.

32The Tribunal finds that the ZBAs’ intended effects on housing supply and cost are supported by Provincial and City policies seeking to support the supply and affordability of housing in all areas of the City, including in mixed-use areas within and around the downtown. Section 2(j) of the Act calls for the adequate provision of a full range of housing, and, in keeping with s. 1.1.1(b) of the PPS, s. 1.1.3.3 calls for “accommodating a significant supply and range of housing options through intensification and redevelopment…” The PPS continues with several related policies, including s. 1.4.3 and s. 1.7.1.

33The Tribunal agrees with the City affiants that the PPS definition of “housing options” does not encompass dedicated STRs in its reference to “housing related to employment.” The definition is referring to housing for workers, and would not be referring to the employment arising from managing and maintaining dedicated STRs. Mixed-use areas intend to enable people to reside spatially close to, or close via transit to, their places of work. Such is “housing related to employment.” The planning witnesses agree that a person residing in units for a month or longer constitute a residential use, being “housing,” whereas ongoing turnover for shorter periods constitutes a commercial use. This definition related to housing does not make reference to accommodating visitors.

34The ZBAs are also found to conform with the OP, as reviewed by Ms. Atfield. The relevant designations contain policies that focus on the provision of suitable housing, such as what constitutes acceptable forms of housing (s. 2.5.2), protecting existing rental housing (s. 3.4.3d and s. 3.8.1.1), and facilitating complete communities (s. 3.6.1 and s. 3.6.2).

Compatibility

35Mr. Ramsay refers to the three OP designations that permit hotels and residential uses, being: Mixed-Use Centres and Town Centres; Mainstreets; and Central Area. Supported by transit, these areas are intended for the greatest intensity of uses, including a focus on business and tourism. Mr. Ramsay considers dedicated STRs as an appropriate land use within such areas, and that site-specific matters can be addressed adequately at the site plan and building permit stages of approval. Mr. Ramsay does not perceive a serious compatibility issue with dedicated STRs because a mix of uses, including in the same building, are already present or planned for in these designations.

36In contrast, Ms. Atfield opines that the ZBAs appropriately prevent dedicated STRs, being commercial uses, from locating amidst residential uses. When compared to dwellings, these commercial uses result in more coming and going of pedestrian and vehicle traffic, and, as opined by Dr. Wachsmuth, have the potential to generate more noise at undesirable hours for neighbouring residents.

37Ms. Atfield explains that establishing a dedicated STR amounts to a conversion of use within a residential setting. She notes that the OP’s vision and goals to accommodate population growth relate to residents, not visitors. She further underscores the mixed-use designations’ policies for compatible scale and function, a balance of uses, and encouraging residential opportunities.

38Opposite Mr. Ramsay’s recommendation, Ms. Atfield opines that the downtown, centres and nodes are among the most important areas to prevent dedicated STRs. Like residential areas, the residential uses in mixed-use areas warrant protection from the effects of commercial STRs. She finds balance in an approach where housing is achieved while also enabling visitor accommodation as a secondary use within a principal residence. Ms. Atfield explains that ZBA 105 defines “hotel” for the purpose of regulation and differentiation from STRs.

39The compatibility issue in this case focusses primarily on buildings containing multiple residential units, being either apartment buildings or mixed-use buildings containing apartments. The Tribunal accepts the evidence of Dr. Wachsmuth and Ms. Atfield that the residential floors in such buildings warrant the same residential use protections as do residential zones covering residential neighbourhoods. The principal use on those residential floors is intended to be housing, that is, primarily a place for residents. On the planning witnesses’ consensus that a dedicated STR is a commercial use, the Tribunal finds it incompatible with the residential function within a floor or floors of a mixed-use building. The tenants or owners of units on such floors deserve the assurance of knowing that their neighbouring units will remain in a residential use. While the planning witnesses agree that the PR requirement will not eliminate nuisance complaints against STRs, the absence of continuous STRs and the primary use as a residence is likely to substantially reduce the potential for complaints.

40The Tribunal finds that the ZBAs’ intention to address compatibility issues of STRs through the application of a PR requirement, including in mixed-use areas of the City, has appropriate regard for the Provincial interests and PPS policies for housing, intensification and compatible mixed uses as noted earlier.

41The Tribunal finds the ZBAs to conform with such OP directions as protecting residential neighbourhoods (s. 3.6.6, para. 1), the distinction between hotel and residential uses (s. 3.6.6, para. 5), and liveable neighbourhoods (s. 3.6.6.5). In addition, the PR requirement is not found to conflict with the OP goals related to tourism (e.g., s. 3.6.6.3) given that STRs are permitted as secondary uses in residential units in these designations. Although not specific to the compatibility issue here, s. 3.6.3.5 speaks to separating noise-sensitive uses from any adjacent Employment Area, which the Tribunal finds is similarly addressed by these ZBAs not permitting commercial, dedicated STRs amidst residential uses.

42By way of summary illustration, Mr. Sayah opines that he would be unlikely to support the conversion of a rental apartment to an office or business use if situated amidst other apartments on the same floor of a building. The Tribunal agrees that the PR requirement for STRs appropriately prevents the intrusion of a commercial use next to places of residence.

Legal Non-Conforming (“LNC”) Uses

43This section addresses Issues 2 and 3 from para. [6], being the restriction of LNC rights and, if necessary, a request to recognize four dedicated STRs that were described by Ms. Walton.

44The terms LNC use and LNC rights refer to the protection given to existing, legal uses by s. 34(9) of the Act to enable their continued use despite a zoning by-law that now prohibits such use.

45Along with the ZBAs, the City also passed By-law No. 2021-104 (“BL 104”) under the Municipal Act to regulate STRs through the issuance of a host permit. The Parties addressed BL 104 due to its alignment with the ZBAs in the City’s STR regulatory framework, but BL 104 itself is not before the Tribunal for adjudication.

LNC Rights

46OSTRA argues that BL 104 establishes a permitting process for LNC uses which requires payment of a fee and substantial time for document submissions, circulation and review that essentially suspends LNC rights unless and until a permit is granted. OSTRA acknowledges that BL 104 is not before the Tribunal, but because of its effect on LNC rights related to the ZBAs, it asks the Tribunal to recommend that the City allow 18 months to obtain a permit, during which time LNC rights would enable dedicated STRs to continue operation. Mr. Ramsay opines that such recommendation is warranted for proper planning purposes under the Act.

47The City responds that the Tribunal lacks authority to address BL 104 and that no evidence was proffered to suggest that the ZBAs contravene the LNC provisions of the Act. Any challenge of OSTRA to BL 104 should be directed to the appropriate Court.

48The Tribunal agrees with the City and will not engage in assessing the appropriateness of BL 104. Such BL is not before the Tribunal, and while evidence touched on its purpose and effect, this hearing was not the platform for a detailed review. In this case, the Tribunal finds it inappropriate to purport to make a recommendation to the City on its process. Opponents of the City’s process have other avenues available.

49To the ZBAs, though, the Tribunal does find that they do not offend the requirements of s. 34(9) of the Act. As confirmed in evidence and not disputed by the Parties, the ZBAs make no mention of LNC rights or effects. Although trite, the Tribunal acknowledges that these ZBAs are subject to the LNC provisions of s. 34(9) of the Act.

LNC Status Request

50The Parties agree that the ZBL, prior to these ZBAs, permits a STR by virtue of the inclusion of “hotel” as a permitted use in certain zones and the relative absence of a clear definition of “hotel.” As such, a STR, operating as a hotel under the ZBL on the day the ZBAs were passed, may continue as a STR under the protection of s. 34(9) of the Act. Such existing, continued uses are considered LNC STRs using the vernacular planning language. BL 104 defines such uses as “Dedicated STR” which are differentiated from the City’s intended standards by not being the principal residence of the owner.

51Mr. Ramsay opines that, should the Tribunal not grant OSTRA’s request to permit dedicated STRs in mixed-use zones nor ensure their permitted continuance as LNC uses, then the properties identified by Ms. Walton should be expressly permitted to continue. Mr. Ramsay considers the use of said properties to constitute a hotel and therefore permitted by the ZBL before the ZBAs were passed.

52Ms. Walton identifies four properties in the City – 260 Somerset Street West; 555 Somerset Street West; 290 Cambridge Street North; and 440 Preston Street – which she confirms were operating as dedicated STRs on the date the ZBAs were passed.

53The City opposes the requested recognition of these properties, arguing that insufficient evidence is provided to make a determination on their legal status. Ms. Atfield opines that the evaluation of legality under the ZBL involves more than just land use type, such as compliance with parking, setbacks and other provisions applicable to a hotel use. While recognizing that these four properties may well contain a LNC use, Ms. Atfield sees no planning reason to treat them differently than any other existing dedicated STRs in mixed-use areas.

54With reference to the cases cited by OSTRA, the Tribunal is aware of the rights that accrue to a use that is found to be legal non-conforming. The Tribunal will not make a finding on the LNC status of the requested properties. Evidence and submissions were not received at the breadth and depth of information necessary to arrive at a determination of legality. For example, while the Tribunal accepts Ms. Walton’s uncontroverted statements that those properties were used for dedicated STR purposes on the date the ZBAs were passed, neither the full process of legal assessment nor supportive evidence was provided by any Party.

55As reviewed earlier, the Tribunal does note that the LNC rights afforded by s. 34(9) of the Act apply, as always, to these ZBAs in the City.

STR Appearance and Effects

56OSTRA submits that s. 2(5) of ZBA 106 is vague and inappropriate as a zoning provision and should be deleted. The provision is proposed as ZBL s. 121A.5 which reads as follows:

5. a short-term rental cannot change the external residential appearance of the dwelling unit or contribute to the adverse effects such as, but not limited to, those from excessive traffic, parking or noise.

57Mr. Ramsay opines that this alleged requirement is not a proper zoning provision given that he finds it ambiguous, subject to varying interpretations and therefore is unenforceable. The provision lacks clarity on what constitutes a prohibited “change” in “the external residential appearance” or what is an “adverse effect” on such factors as “excessive traffic, parking or noise.”

58Ms. Atfield considers this provision suitable given that its purpose is to help readers understand the intent and limits of STRs. She explains that such requirements are contained in the related BL 104 but that, like similar wording for home-based businesses in the existing ZBL, this provision helps identify intention.

59The Tribunal agrees with Mr. Ramsay that this provision is vague, and as a result, may be less effective if used for compliance enforcement. Ms. Atfield emphasizes that its purpose is primarily one of intentions. While the Tribunal finds that the content and purpose of this provision limit its regulatory application, it may remain in the ZBA given the existence of similar wording elsewhere in the ZBL (e.g., Ex. 2, p. 1351, provisions for home-based business) and that, like all of ZBA 106, this provision is temporary and subject to ongoing review by the City as it evaluates the effectiveness of its STR approach during the trial period.

60The Tribunal finds the intent of this provision to be consistent with the PPS and to conform with relevant OP policies addressed earlier in this Decision, by intending that dwellings used for STR maintain their residential character, and that compatibility is achieved by avoiding excessive adverse effects.

EFFECTIVE DATE OF TEMPORARY USE PROVSIONS

61The City and OGHA request the Tribunal to amend ZBA 106 to commence its three-year period on the date of this Decision. The City wishes to learn from the application of the STR provisions for a full three years in preparation for its anticipated permanent zoning requirements following the temporary use period. OSTRA took no position on this request.

62ZBA 106, as a temporary use ZBA under s. 39 of the Act, was passed on April 28, 2021 for a three-year term ending on April 28, 2024. Under s. 34(30) of the Act, by-laws come into force retroactively to their date of passing if all appeals have been disposed, except for those parts of a by-law that are amended by the Decision. The Tribunal is authorized by s. 34(26)(b) of the Act to “amend the by-law in such manner as the Tribunal may determine or direct the council of the municipality to amend the by-law in accordance with the Tribunal’s Order.”

63OGHA submits that the Ontario Land Tribunal Act, s. 9, grants wide authority for the Tribunal to make orders or give directions, including the date an order comes into force, all in accordance with its powers under the Planning Act.

64The City argues that any amended provision is not retroactive to the date of passing, and thus the three years may commence now. From the Parties’ submissions on the above sections of the Act, the Tribunal accepts that it may well have the authority to amend the by-law as requested. However, the difficulty arising for the Tribunal is s. 39(2) of the Act whereby the time period in effect “shall not exceed three years from the day of the passing of the by-law.”

65Despite an amended date, ZBA 106 has effectively been in place, albeit under appeal, since its date of passing. During that time, operators of dedicated STRs would likely have understood that new such uses were not permitted. The City offered no evidence of having endorsed new dedicated STRs during that time, nor does the Tribunal believe it could have. Moreover, the definitions in BL 105 will be retroactive to their date of passing, with resulting implications for the types of uses permitted or prohibited in various zones. In addition, the provisions sought to be under an amended timeframe invoke all of the substantive provisions of ZBA 106 by the statement: “this section is repealed in its entirety on [date].” If the extension were granted, the total time of practical effect would be approaching four years, being longer than permitted by s. 39(2) of the Act.

66Despite its apparent authority to grant an extended time period for a temporary use, the Tribunal will not grant the request due to the practical implications that arise. With its approval in this Decision, ZBA 106 is now in effect back to its date of passing, being, for example, the date at which LNC uses were evaluated in this hearing, and consistent with the date at which ZBA 105 takes effect. If the City requires more time beyond April 28, 2024 to study the results of its STR program, it has the option of passing a further by-law under s. 39(3) of the Act to extend the term of ZBA 106.

CONCLUSION

67After full consideration of the detailed documents, oral evidence and Party submissions, the Tribunal will deny the appeal and approve the City’s ZBAs.

68Ms. Atfield reviewed all components of the ZBAs, including their approach to STRs in rural areas of the City, opining that the ZBAs, in full, have regard for provincial interests, are consistent with the PPS and conform with the OP.

69The Tribunal finds one of Ms. Atfield’s summary comments to ring true: that, regardless of number, any return of units to the long-term housing market helps address today’s housing crisis.

70The Tribunal finds that ZBAs 105 and 106, including their sections under appeal and their unappealed sections, satisfy all legislative tests noted above. The Tribunal has also had regard to the City’s decisions and the information the City considered in relation to these ZBAs. The Tribunal finds these ZBAs to represent good planning in the public interest.

71The Tribunal finds it inappropriate to grant the City’s request to extend the temporary use time period, given that the practical application of these ZBAs began on their date of passing.

72The minor spelling correction to “principal” in ZBA 105 is contained in the Order below. Without objection from any Party, the Tribunal finds that it has no material effect on the intended application and interpretation of the ZBAs’ provisions.

ORDER

73The Tribunal Orders that the appeal is dismissed, and Zoning By-law No. 2008-250 is amended by By-law No. 2021-105 and by By-law No. 2021-106 (being Exhibit 2, Tabs 1 and 2), including a housekeeping correction to By-law No. 2021-105 to replace the word “principle” with “principal” in each of its three occurrences.

“S. Tousaw”

S. tousaw

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.