Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 15, 2022
CASE NO(S).:
OLT-21-001828
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
226 Carruthers Holdings Inc.
Subject:
Consent – refused by Approval Authority
Description:
To create one new lot from one existing lot. The severed lot requires a minor variance application to permit reduced lot width, lot area and front and interior yard setbacks
Reference Number:
D08-01-21/B-00287
Property Address:
226 Carruthers Avenue
Municipality/UT:
Ottawa/Ottawa
OLT Case No.:
OLT-21-001828
OLT Lead Case No.:
OLT-21-001828
OLT Case Name:
226 Carruthers Holdings Inc. v Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
226 Carruthers Holdings Inc.
Subject:
Consent – refused by Approval Authority
Reference Number:
D08-01-21/B-00288
Property Address:
226 Carruthers Avenue
Municipality/UT:
Ottawa/Ottawa
OLT Case No.:
OLT-21-001829
OLT Lead Case No.:
OLT-21-001828
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
226 Carruthers Holdings Inc.
Subject:
Minor Variance – refused by Approval Authority
Reference Number:
D08-02-21/B-00268
Property Address:
226 Carruthers Avenue
Municipality/UT:
Ottawa/Ottawa
OLT Case No.:
OLT-21-001830
OLT Lead Case No.:
OLT-21-001828
Heard:
May 31, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel*/Representative
226 Carruthers Holdings Inc.
Trenton McBain*
Joshua Moon*
Hintonburg Community
Linda Hoad
Association
DECISION DELIVERED BY S. BOBKA AND S. MANN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The company called 226 Carruthers Holdings Inc. (“Appellant”) owns the property known municipally as 226 Carruthers Avenue (“Subject Property”). To facilitate the redevelopment of the Subject Property, the Appellant applied to the City of Ottawa (“City”) for consents to sever the Subject Property into two residential lots, as well as the associated minor variances (“MV”) to address Zoning By-law No. 2008-250 (“ZBL”) deficiencies which would result from the severance, if granted. The application also seeks to create easements/rights-of-way for a shared driveway.
2The City’s planning staff provided a detailed report (“Staff Report”) to the Committee of Adjustment (“COA”) in support of their recommendation that the consent and MV applications (collectively, “Applications”) be approved, subject to a number of conditions. The COA refused the Applications, and that decision is now the subject of these Appeals before the Tribunal, brought pursuant to s. 53(19) and 45(12) of the Planning Act (“Act”).
3The Tribunal was advised prior to the Hearing that the City would not be attending or taking a position.
4With the consent of the Applicant, Participant Status was granted to nearby residents: Jennifer Cuda and Lorne Mitchell; Alexandra Stockwell; and Anna Belanger and Aaron Munson.
5The Tribunal received written requests for Party Status from the following: Linda Khaled and the Hintonburg Community Association (“HCA”), represented by their member, Linda Hoad. As both appeared without counsel, the Tribunal provided a thorough explanation of the difference between Party and Participant Status.
6After a careful review of the information provided in the requests and clarification from the requestors on their intentions, the Tribunal granted Party Status to the HCA represented by Ms. Hoad. As Ms. Khaled wished to act as both representative and witness, which is not permitted, the Tribunal found instead that what she sought was more appropriate to the granting of Participant Status.
7As such, with the consent of the Appellant, the written statement appended to Ms. Khaled’s Party Status request form was accepted by the Tribunal as a Participant statement.
8In opposition to the proposed development, the written statements of the Participants raised a variety of concerns including, but not limited to: loss of natural light, loss of privacy, fire concerns, impact on quality of life, and the inability to perform maintenance.
SITE CONTEXT AND EFFECT OF PROPOSAL
9The Appellant is seeking consents to create one (1) new lot from one (1) existing lot. If approved, the severed lot requires the following variances to permit:
A lot width of 8.40 metres (“m”), whereas the minimum required is 10 m.
A lot area of 225.6 square metres (“sq m”), whereas the minimum required is 300 sq m.
An interior side yard setback of 0.2 m, whereas the minimum required is 1.2 m.
10The Subject Property is rectangular in shape with a total lot area of 556.50 sq m and a total frontage on Carruthers Avenue of 20.14 m. Currently, it contains:
one (1) two storey low-rise apartment building (to be retained) on the south side of the property; and,
a single detached one-and-a-half storey residential unit (to be demolished).
Between the two buildings will be a 2.89 m drive aisle leading to the rear of the property. In the rear, there is a surface parking and a single car garage (to be demolished).
11The Subject Property is shown as Parts 1 to 4 on the Draft Reference Plan (Exhibit 1) and the separate parcels will be as follows:
Lot Width
Lot Area
Part No.
Municipal Address
11.74 m
339.9 sq m
3* & 4
228, 230 Carruthers Avenue (existing low-rise apartment building)
8.40 m
225.6 sq m
1 & 2*
(226A, 226B, 226C) Carruthers Avenue (proposed three-unit dwelling)
It is proposed to establish reciprocal easements/rights-of-way over Parts 2 and 3 for access over a proposed shared laneway.
12The Subject Property is within the established Hintonburg community and the neighbourhood is considered a low-rise established neighbourhood with at-grade retail uses along certain corner sites.
13The Subject Property is within 100 m of Arterial Roads, within the 600-m boundary of the existing Tunney’s Pasture rapid transit station and is also considered to be well situated for active transportation.
14The Subject Property is surrounded by a variable lot fabric including:
narrower lots with frontages of roughly 10 m occupied by single-detached, two-storey dwellings, though some lots in the area are as narrow as 4.58 m;
larger lots with varied buildings such as stacked townhouse units, duplexes and low-rise apartment buildings.
15The Subject Property is designated General Urban Area in the City’s Official Plan (“OP”), is zoned Residential Fourth Density Zone, Subzone UB (R4UB) in the City’s Comprehensive ZBL and is designated Low-Rise Residential in the Scott Street Secondary Plan (“SP”).
LEGISLATIVE FRAMEWORK
Legislative Framework for Consent Appeals
16With respect to the Appeal pursuant to s. 53(19) of the Act, in order to determine whether provisional consents should be granted (with such conditions that may be required), the Tribunal must:
a. be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the City and can proceed by way of application for consent;
b. if the Tribunal is satisfied that a plan of subdivision is not necessary, regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of Provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans (“OP”); the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; the adequacy of utilities and municipal services; and the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the building and structures proposed to be erected on it and the restrictions, if any, on adjoining land;
c. As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement (“PPS”). The Tribunal must also have regard to the decision of the approval authority relating to the consent application and the information and material that was before it when making that decision;
d. Pursuant to s. 53(12) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent;
e. Finally, in general, the Tribunal will decide whether the proposed consent along with any required conditions, is representative of good planning in the public interest.
Legislative Framework for Minor Variance (MV) Appeals
17Pursuant to s. 45(1), the Tribunal must be satisfied that the requested MVs:
a. maintain the general intent and purpose of the OP;
b. maintain the general intent and purpose of the Town’s ZBL;
c. are minor in nature; and
d. are desirable for the appropriate development or use of the land, building or structure.
18Additionally, the Tribunal must be satisfied that the variances are consistent with the PPS; have regard to matters of Provincial interest; and, in making its decision, the Tribunal must have regard to the decision of the approval authority and the information that was before it when making that decision.
THE HEARING
19The only professional evidence before the Tribunal was the testimony of Lisa Dalla Rosa, the Land Use Planning Consultant for the Appellant and that of Masha Makula, who gave evidence under summons and issued at the request of the Appellant. Ms. Makula was the City Planner who provided reports to the COA regarding the applications. Both were qualified by the Tribunal to give opinion evidence as land use planners. In addition, the Tribunal heard from Jeremy Silburt, who though not tendered as an expert, provided testimony related to the logistics of the proposed construction process based on his relevant experience.
20The Tribunal received and marked the following documents as Exhibits to the Appeal:
Exhibit 1 – Revised Applicant Book of Documents
Exhibit 2 – Zoning By-law Excerpt
Exhibit 3 – Participant Statements:
a) Jennifer Cuda and Lorne Mitchell;
b) Alexandra Stockwell;
c) Anna Belanger and Aaron Munson; and,
d) Linda Khaled.
21The Tribunal also had the Municipal Record available to it, as forwarded by the Municipality, containing all of the information and documentation that were before the COA when the application was received, considered and decided.
22The planning witnesses were aligned in their analyses with respect to the proposed consents and MVs, ultimately concluding they are representative of good planning, in the public interest and meet all necessary Legislative tests. Focusing upon specific Provincial and local policies most applicable to the matters under appeal, they provided an overview of the ways in which the proposal achieves the requisite consistency and conformity with same.
23Specific to the proposed consents, Ms. Dalla Rosa opined that, as only one additional lot will be created, a plan of subdivision is not required for the proper and orderly development of the City. Having evaluated the relevant criteria in s. 51(24) of the Act, she concluded that the proposed consents:
have appropriate regard for matters of Provincial interest;
are not premature and are in the public interest, particularly, as they are intended to create new housing, which is currently a key matter of public interest;
achieve conformity with applicable official plans;
are suitable for the number and type of dwellings proposed;
will result in the creation of lots of shapes and sizes that are consistent with the lot fabric in the area;
are serviced with municipal water, sanitary, and stormwater management services that are located within Carruthers Avenue; and,
include appropriate restrictions/easements given the shared driveway.
24Regarding the proposed consents, Ms. Hoad confirmed that the HCA had no objections.
25Both planners spoke to the recommended conditions in relation to the consents, noting they appropriately address the concerns raised by commenting agencies. They recommended they be imposed should the Application be successful, as they are appropriate and reasonable, having regard to the nature of the proposed development.
26With respect to the MVs sought, the planners concurred that the proposed variances were consistent with the PPS, had regard for s. 2 of the Act and represented good planning in the public interest.
27Ms. Hoad stated to the Tribunal that the HCA’s main objection was to the proposed 0.2 m interior side yard setback. Ms. Dalla Rosa opined that the three proposed variances are consistent with what exists in the area or are carrying over an existing condition. She stated that the 0.2 m side yard setback:
has existed since at least 1958;
is proposed only in the portion of the building where it was previously existing with all other portions of the northern façade set back 1.4 m (which is more than required by the ZBL); and,
is greater than other properties in the area that have been developed with narrower building separations.
28Ms. Dalla Rosa and Mr. Silburt both testified that the 0.2 m side yard setback enabled the creation of the proposed three-bedroom units, which are not common in the surrounding area, and thereby contributes to providing a diversity of housing options for the neighbourhood.
29Ms. Dalla Rosa spoke at length about the varied and eclectic lot fabric which, she demonstrated through numerous photos and maps, is characteristic of the area. It was her opinion that the proposal was compatible with surrounding lots.
30In summary, Ms. Dalla Rosa opined that the requested relief met the four tests as the proposal:
maintains the general intent of the OP (and the SP) by adding to intensification in the built-up area;
maintains the general intent and purpose of the ZBL as it permits low-rise built-form that is consistent with what exists in the area;
is minor as it is not significantly different from the current condition and the impact to neighbours would be minimal compared to as-of-right construction; and,
is desirable as it will provide a modest amount of intensification in a manner that is compatible with the existing neighbourhood.
31In his testimony, Mr. Silburt explained the construction process, emphasizing how the property development company will work with the adjacent neighbour to mitigate damage, facilitate maintenance on the adjacent property after demolition of the existing dwelling and endeavour to accommodate preferences related to exterior colours, fencing, etc.
32Finally, the Tribunal notes that, while not exhaustively addressed in this Decision, counsel for the Appellant and each of the witnesses spent a significant amount of time addressing the concerns related to privacy, loss of natural light and impact on quality of life as raised in the Participant Statements. In response to the concern regarding fire, Ms. Dalla Rosa stated that she would not recommend a plan that would create a fire hazard, and Mr. Silburt explained that the building code now requires a non-combustible material for the portion set back 0.2 m, which will actually improve fire safety between the two buildings.
FINDINGS
33Notwithstanding the various observations, concerns and apprehensions expressed within the Participant Statements, the evidence put forward in support of the Appeal stood uncontroverted and unchallenged in any cogent manner. The Tribunal wholly accepted the detailed testimony of the witnesses and is satisfied the proposed consents and MVs meet all requisite Legislative tests and are, in general, representative of good planning in the public interest.
34In so finding, due regard has been given to matters of Provincial interest, including but not limited to: the orderly development of safe and healthy communities; and the appropriate location of growth and development. Regard has also been given to the decision of the City and the information it had available when making its decision.
35With respect to the matter of conditions to be imposed, the Tribunal finds the conditions recommended in the Staff Report, requested by the City and consented to by the Appellant are reasonable, having regard to the nature of the proposed consents. Accordingly, the Tribunal will impose the conditions.
ORDER
36THE TRIBUNAL ORDERS the Appeals are allowed and:
Provisional consents are to be given subject to the conditions set out in Attachment 1 to this Order; and,
The variances to Zoning By-law No. 2008-250 are authorized.
“S. Bobka”
S. BOBKA
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
ATTACHMENT 1
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) enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Infrastructure and Economic Development Department, or his/her designate to address the following:
a) The Owner/Applicant(s) shall prepare and submit a tree planting plan, prepared to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Infrastructure and Economic Development Department, or his/her designate, showing the location of one new 50mm tree to be planted on the property frontage or right-of-way of each lot following construction, to enhance the urban tree canopy and streetscape.
That the Owner(s) provide proof to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Infrastructure and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that the existing dwelling has been removed, that the existing sewer services are capped at the sewer and that the existing water service is blanked at the watermain.
That the Owner(s) provide evidence (servicing plan), to the satisfaction of the Development Review Manager of the relevant Branch within 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) provide evidence to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Infrastructure and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that the accessory structure has been demolished in accordance with the demolition permit, or relocated in conformity with the Zoning By-law.
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 Development Review Manager of the relevant Branch within 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 Development Review Manager of the relevant Branch within the Planning, Infrastructure and Economic Development Department, or his/her designate.
That the Owner(s) enter into an Agreement with the City, at the expense of the Owner(s), which is to be registered on the Title of the property, to deal with the following covenant/notice that shall run with the land and bind future owners on subsequent transfers:
“The property is located next to lands that have an active railway line now, or may have one in the future, and may therefore be subjected to noise and other activities associated with this use.”
The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title. (within 300m from LRT railway line)
- That the Owner(s) enter into a Joint Use, Maintenance and Common Elements 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 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 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.
The Owner(s) shall prepare a noise attenuation study (or noise and vibration attenuation study if applicable) in compliance with the City of Ottawa Environmental Noise Control Guidelines to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Infrastructure and Economic Development Department, or his/her designate. The Owner(s) shall enter into an agreement with the City that requires the Owner to implement any noise control (and vibration if applicable) attenuation measures recommended in the approved study. The Agreement will also deal with any covenants/notices recommended in the approved study, that shall be registered on the land title and bind future owners on subsequent transfers, warning purchasers and/or tenants of expected noise levels due to the existing source of environmental noise (arterial, highway, airport, etc.). The Agreement shall be to the satisfaction of the Development Review Manager of the relevant Branch within the Planning, Infrastructure and Economic Development Department, or his/her designate. The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title. (within 300m from LRT railway line)
That the Owner(s) satisfy the Chief Building Official, or designate, by providing design drawings or other documentation prepared by a qualified designer, that as a result of the proposed severance the existing low-rise apartment building on Part 4 of Draft 4R-Plan shall comply with the Ontario Building Code, O. Reg. 332/12 as amended, in regard to the limiting distance along the northernly side of the proposed property line. If necessary, a building permit shall be obtained from Building Code Services for any required alterations.