Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 03, 2022
CASE NO(S).: OLT-22-003128
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: City View Community Association Inc.
Applicant: Carine Diane Kouemo Ngako
Subject: Minor Variance
Description: To reduce minimum lot area and lot width in order to construct 2 new two-storey residential dwellings
Reference Number: D08-02-21/A-00427
Property Address: 2 David Drive
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-22-003128
OLT Lead Case No.: OLT-22-003128
OLT Case Name: City View Community Association Inc. v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Description: To reduce minimum lot area and lot width in order to construct 2 new two-storey residential dwellings
Reference Number: D08-02-22/A-00004
Property Address: 2 David Drive
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-22-003130
OLT Lead Case No.: OLT-22-003128
Heard: July 4, 2022 by video hearing
APPEARANCES:
Parties
Representative
Carine Diane Kouemo Ngako ("Applicant")
Self-represented
City View Community Association Inc. ("Appellant")
Nancy Wilson and Jill Prot
DECISION DELIVERED BY ERIC. S. CROWE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal filed by Nancy Wilson and Jill Prot, (the Appellant) against the decision of the City of Ottawa (the “City”) Committee of Adjustment’s (the “CoA”) decision on March 11, 2022, in relation to an application for minor variances to the zoning provisions established by Zoning By-law No. 2008-250, as amended (the “ZBL”) concerning 2 David Drive (the “Subject Property”).
2In a related application, the Applicant requested permission to sever the Subject Property into two parcels: the severed and retained lots both have frontage onto David Drive. The proposed severed lot would have a frontage of 14.7 metres (“m”) and an approximate lot area of 426.1 square metres (“m2”), the retained lot would have a frontage of 15.69 m and lot area of 425.9 m2. The proposed parcels would not be in conformity with the requirements of the ZBL, therefore, the minor variance applications were filed and heard concurrently by the CoA. The minor variance applications D08-02-21/A-00427 and D08-02-22/A-00004 accompanied the proposed severance application. The severance applications have not been appealed and not before the Tribunal.
3The minor variances requested are specifically for Lot Area and Lot Width. The proposal is to sever the lot and in the first phase, to demolish the existing building (garage), then build a two-storey detached dwelling in the newly created lot; in the second phase, the existing single storey dwelling will be demolished and replaced with a two-storey detached dwelling in the other newly created lot. These lots will be identified as 2A and 2B David Drive.
BRIEF CHRONOLOGY OF THE APPLICATION
4Prior to the Hearing on February 16, 2022, the CoA received an adjournment request from Christina Culley, the City Planner, to allow time for the Applicant to submit the revised plans. With the concurrence of all parties, the application was adjourned to March 2, 2022.
5The applications were heard on March 2, 2022, and subsequently, the CoA approved the applications dated March 11, 2022.
6The Appellant filed the appeals expressing several concerns such as the proposed scale of construction and lot coverage, which it was argued would amount to the overdevelopment of the lot, the lack of community consultation, the loss of privacy due to the proposed rooftop terraces, the inadequacy of existing municipal services to support new development, and the erosion of the existing character of the community.
PARTY STATUS REQUEST
7At the commencement of the Hearing, Doug Gervais requested Party status. Mr. Gervais lives at 22 Bayne Avenue, who is a neighbour with adjoining property to the Subject Property. Mr. Gervais submitted his Party status application to the Tribunal on July 3, 2022, one day before the Hearing, instead of at least ten (10) days in advance of the first hearing requirement of the Tribunal’s Rules of Practice and Procedure. Mr. Gervais explained to the Tribunal that he was a member of the City View Community Association Inc. and confirmed that his issues and concerns were the same as the Association. The Applicant objected to this Party status request. The Tribunal decided that since Mr. Gervais had the same issues and concerns as the Appellant, he would be denied Party status but be allowed to submit a Participant status request by Wednesday, July 6, 2022. However, during the Hearing, Mr. Gervais was called as a witness by the Appellant and testified. Therefore, the Tribunal relied on his testimony and not on his Participant Statement which he submitted two days later.
PARTICIPANT STATUS REQUEST
8The Tribunal granted Participant status to Melissa Stephania Ngouambe Ngako, who also submitted her request late from the ten (10) day requirement on June 29, 2022. The Tribunal advised that she may resubmit her Participant status request by Wednesday, July 6, 2022, since her first statement provided no useful Participant information, and to ensure that she outlines her issues within the statement. Ms. M. Ngako did resubmit her Participant status request and the Tribunal has weighed her statement accordingly.
DECISION
9The Tribunal has carefully considered all of the evidence including documents filed, as well as the submissions of the parties and is satisfied based on the submission of evidence that the four tests under s. 45(1) of the Planning Act (the “Act”) have been met by this application, and that the appeal should be dismissed for the reasons that follow.
THE REQUESTED VARIANCES
10The Subject Property is zoned Urban Residential 2-1 (R1FF). The Owner requires the authority of the CoA for minor variances from the ZBA as follows:
- 2B David Drive - Part 1 on a proposed detached dwelling:
a) To permit a reduced lot area of 426.1 m2, whereas the ZBL requires a minimum lot area of 600 m2.
b) To permit a reduced lot width of 13.5 m, whereas the ZBL requires a minimum lot width of 19.5 m.
- 2A David Drive, Part 2 on proposed detached dwelling:
c) To permit a reduced lot area of 425.9 m2, whereas the ZBL requires a minimum lot area of 600 m2.
d) To permit a reduced lot width of 14.13 m, whereas the ZBL requires a minimum lot width of 19.5 m.
LEGISLATIVE TESTS
11It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect.
12Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:
i. maintain the general intent and purpose of the Official Plan (the “OP”),
ii. maintain the general intent and purpose of the ZBL,
iii. are desirable for the appropriate development or use of the land, building or structure, and,
iv. are minor in nature.
EVIDENCE
Witnesses
13Christina Culley is a planner for the City, who appeared under summons before the Tribunal to give land use planning testimony. Ms. Culley adopted the prepared report to the CoA recommending that the variances be authorized.
14Nancy Wilson advised that herself and Jill Prot are Co-Presidents of the City View Community Association Inc. and would be self-represented. The Association was incorporated on February 4, 2019. Ms. Wilson advised that there are approximately 200 to 300 members of the Association with approximately 1,200 homes in the general vicinity of Merivale Road, Woodruff Avenue, Baseline Road and Meadowlands Drive in the City of Nepean.
15(Mr.) Jean Talla, an engineer was called as a lay witness for the Applicant and Mr. Gervais was called as a lay witness for the Appellant.
The Provincial Policy Statement
16Ms. Wilson takes the position that the minor variances do not enable sensitive intensification that is compatible with the existing community. She advised that the Association has always argued that the area is within the Greenbelt and there is inadequate infrastructure, including lack of storm sewers and aging water and sanitary sewers.
17Ms. Wilson highlighted s. 3 of the Act in relation to matters of provincial interest that the Tribunal and the CoA “shall have regard to” when making decisions. These matters include (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing, including affordable housing; (p) the appropriate location of growth and development. Ms. Wilson states these minor variances do not help to achieve these Provincial goals. In Ms. Wilson’s personal opinion, the minor variances do not provide gentle and compatible intensification that promotes the efficient use of existing municipal infrastructure in the urban area or increase the City's housing supply in a manner that is orderly, sustainable and in an appropriate area for growth and development.
18In Ms. Culley’s professional opinion, the proposed minor variance is clearly consistent with and conforms to the PPS Building Strong Healthy Communities policies, specifically Section 1.1.1 Healthy, liveable, and safe communities. The proposed minor variance and the development proposed supports the key objective of efficient land use patterns and densities that creates a community that will meet long term needs of both the City and the Province over the long term.
City of Ottawa Official Plan
19Ms. Wilson contends the proposal does not respect or reinforce the existing physical character of the surrounding neighbourhood. The OP supports compatible intensification in the General Urban Area in a low-rise built form that enhances and complements the desirable characteristics and ensures the long-term vitality of existing communities as per Section 2.2.2, Policies 10, 22 and 23 of the OP. In Ms. Wilson’s opinion, these proposed variances will not result in such compatible intensification.
20Ms. Wilson testified the proposal does not replicate the features and design elements of the existing community and would cause undue adverse effects on the community and adjacent properties, which does not support the requirements of Sections 2.5.1 and 4.11 of the OP. According to Ms. Wilson, the proposed development does not meet Policies 2.5.1 and 4.11 of the OP for a number of reasons, including the fact that the proposed roofline articulations are not similar to the existing character on David Drive or other adjacent properties.
21In Ms. Wilson’s opinion, the requested minor variances will result in privacy concerns for the properties abutting the side yard lot lines due to the different roofline articulations.
22Mr. Talla testified that the minor variances would allow for the development of the Subject Property in a manner consistent with the goals and objectives of the OP. The minor variances allow for the efficient use of existing infrastructure, which is encouraged by the PPS. The proposed residential development generally conforms to the Design Guidelines for Low Rise Infill Housing. Further, the provision of a range of residential built forms with immediate access to parks, schools and open spaces is consistent with the PPS, which encourages development that accommodates residents of all ages and incomes and provides sustainable community amenities.
23Ms. Culley advised that this application was deemed complete February 24, 2022. In accordance with the OP transition policies approved by City Council (October 27, 2021), this application was evaluated under the policies contained within the existing OP (2003) and the new OP (2021). She testified that the City legal counsel have recommended applying the most restrictive policies.
24Ms. Culley stated the Subject Property is designated General Urban Area on Schedule B in the existing OP (2003), which permits a wide range of types and densities of housing. Sections 2.5.1 and 4.11 are used in the evaluation of development applications undertaken by the City. These sections outline urban design objectives and ways to achieve compatibility. The intent of compatibility is to allow for development that, although not necessarily the same as or similar to existing buildings in the vicinity, can enhance an established community through good design and coexist with existing development without causing undue adverse impacts. Ms. Culley advised the design for the proposed development includes porched principal entrances, which aligns with the neighbouring properties. The window placements are also similar to the existing character on David Drive.
25Ms. Culley advised that under the new OP (2021), this property is located in the Outer Urban Transect Policy Area on Schedule A and is designated Neighbourhood on Schedule B3. Section 5.3.1 indicates that in the Outer Urban Transect Area, development shall be low-rise within Neighbourhoods. Section 4.6.6 further outlines those low-rise buildings shall be designed to respond to context, and shall include areas for soft landscaping, main entrances at-grade, front porches or balconies, where appropriate. The proposed development is low-rise and maintains an area for soft landscaping.
26In Ms. Culley’s opinion, the proposed development as permitted by the requested variances, meets the requirements for development in the Urban Residential designated lands and therefore meets the general intent and purpose of the OP.
City of Ottawa Zoning By-law
27Ms. Culley explained the zoning for this property is Residential First Density Zone Subzone FF (R1FF). The purpose of this zone is to regulate development in a manner that is compatible with existing land use patterns so that the detached dwelling maintains or enhances the residential character of a neighbourhood. The R1FF zoning requires a minimum lot width of 19.5 m and a minimum lot area of 600 m2.
28Ms. Wilson advised that the Applicant specifically noted surrounding properties on David Drive and adjacent streets with respect to the differences between the minor variances requested and the ZBL requirements. Ms. Wilson highlighted the lot widths and included a list of 37 surrounding properties with frontages on David Drive located between Bayne Avenue and Rowley Avenue, as well as 13 properties either abutting or within close proximity, located on Bayne Avenue, Meadowlands Drive, Canter Boulevard and Joan Avenue. According to Ms. Wilson, these properties have an average lot width of 92.67 feet (“ft”) or 29.13 m, which exceeds the minimum lot width of 64 ft or 19.5 m required in the ZBL.
29Ms. Wilson advised that of the 50 surrounding properties, there are only 5 properties that are under the 19.5 m required by the existing ZBL. Four of the lots (20/22 David Drive and 30A/30B David Drive) were created from the severance of two regular shaped lots and they do not adversely affect the abutting properties. One lot at 18 Bayne Avenue is grandfathered as it was created back in the 1980’s when roads close to Merivale Road were closed, houses were moved, and slightly irregular lots were created.
30In relation to lot areas, Ms. Wilson emphasized similar findings for lot width, the 37 properties with frontage on David Drive located between Bayne Avenue and Rowley Avenue, as well as 13 properties within close proximity located on Bayne Avenue, Meadowlands Drive, Canter Boulevard and Joan Avenue have an average lot area of 862.53 m2, which greatly exceeds the minimum lot area of 600 m2 required in the ZBL. According to Ms. Wilson, of the 50 surrounding properties, there are 5 properties that are in the 400 m2 range well under the 600m2 required by the existing ZBL.
31In Ms. Wilson’s opinion, the proposed lot areas are not in keeping with the lot fabric of the area. These variances do not maintain the general intent and purpose of the ZBL, as the proposal does not meet the by-law requirements nor does it represent orderly development that is compatible with the lot widths and areas of the surrounding area. As a result, the requested variances do not reflect the general intent and purpose of the ZBL.
32Ms. Culley advised that the 36 surrounding properties zoned R1FF with frontage on David Drive located between Bayne Avenue and Rowley Avenue have an approximate average lot width of 24.67 m and approximate average lot area of 812.86 m2, which exceed the minimum lot width of 19.5 m and minimum lot area of 600 m2 outlined in the ZBL. While the requested reduced lot widths and areas are below these approximate averages, she acknowledged that the proposed severance and minor variances are reflective of the redevelopment of lots for the purposes of constructing detached dwellings and maintaining the R1 typology. Despite the sought relief, the dwellings have been sited and designed to provide space on each lot to comply with the minimum required setbacks outlined in the ZBL. In addition, space for soft landscaping is maintained as the 40 percent minimum aggregated soft landscaping required per Section 139(1) of the ZBL is met.
33In Ms. Culley’s opinion, the proposed development meets the general intent and purpose of the City’s ZBL.
Desirable for the appropriate development and use of the land
34The Appellant raised the issue of characteristics of the neighborhood as referenced in the OP and is well over the minimum allowed by the ZBL, which is 19.5 m and 600 m2 and contends the proposed development does not fit in this area.
35The Appellant contends the existing street plan allows for the majority of the dwelling to face the street in this established neighborhood providing a usable backyard behind the dwelling. The application is requesting to rotate the orientation of the dwelling since it is not rectangular but irregular (pie shaped) so the longest portion of the dwelling, which usually runs on the front of the property, runs along the side yard so the developer can push much further back into the lot. This will provide minimum backyard space and remove any privacy concerns that the two immediate neighbors currently have.
36Ms. Wilson advised the variances are not desirable for the appropriate development and use of land. She contends these minor variances will permit the use of land for two additional detached dwellings, of which the elevations show will not be in keeping with the architectural style of the surrounding homes in the neighbourhood. The minor variances are not in keeping with other properties with respect to lot width and lot area within the surrounding community and will result in adverse effects on the streetscape, neighbouring properties and the community. The minor variances will not permit sensitive intensification that is compatible with the surrounding community as encouraged by the OP and the PPS.
37Mr. Gervais testified that he is not against development of a single-family dwelling, but is strongly against two dwellings on an undersized lot. He advised this lot severance plans show two large block shaped buildings with roof patios and front and back balconies. The plans also indicate buildings with flat roofs and very small front and back yards. He advised there are no other houses on the street with upper balconies. In Mr. Gervais’s opinion, in comparison to the neighborhood, these proposed houses will be much higher and are not consistent with the neighboring homes and do not match the current character of the neighborhood.
38In addition, Mr. Gervais testified the proposed “Party Deck” would impact his privacy. He explained that his privacy would be negatively impacted by not only the noise from the “Party Deck”, but also people could stare down into his backyard. In addition, the proposed dwelling would block his view.
39On cross-examination, Mr. Gervais explained his comment of “Party Deck” in relation to the proposed roof terrace, is where people will have their “cocktails” and congregate on the terrace and therefore, naturally cause noise.
40Mr. Talla testified the neighborhood is an eclectic mixture of traditional as well as some newer attempts at contemporary designs. He testified the character of the neighbourhood is not diminishing in value but is changing existing dwellings into newer ones. He advised that the Applicant will be living in one dwelling and there has been no decision on the future of the other dwelling whether they rent it or put it onto the freehold market. In any event, he contends it was important to provide two distinct architectural forms that would capture the expectations of the largest market groups.
41Mr. Talla advised both architectural forms embody the current standards of larger windows and the use of contemporary materials such as cement board panels, prefinished wood siding, architectural parapet, and aluminum clad windows. Both designs incorporate large front entrance porches protected by gable roofs and flat canopies that will contribute to the activity at street level with the neighbours.
42Mr. Talla testified that the dwelling on 30A David Drive has a 14.35 m lot width. In addition, 30B David Drive has a 14.20 m lot width and a 13.52 m wide backyard. He advised that the dwelling at 29 David Drive was approved for minor variances to server the land which will have frontage of 13.01 m and 13.80 m. Mr. Talla advised that on 43 Rossland Avenue, the City permitted the construction of an accessed rooftop type single dwelling. On cross-examination, Mr. Talla could not confirm if the CoA approved this minor variance. On 66, (68) Chippewa Avenue, the City permitted a minor variance for the construction of an accessed rooftop single dwelling. The Appellant argued that the balcony in this case did not overlook the neighbour’s property.
43Ms. Culley testified the proposed reduction in minimum lot area, and minimum lot width requirements are appropriate given the lots location. The decision to sever the Subject Property is to allow for two single detached dwellings which will allow for greater residential density as per the PPS, without having significant impact on the character of the neighbourhood.
44Ms. Culley advised there are no tree-related concerns with the proposed severance or minor variances. The one City-owned tree is well outside of the proposed work area and must be protected in accordance with the City's Tree Protection specifications. One new tree must be planted on the right-of-way or frontage of each lot following construction, to enhance the streetscape and urban canopy cover. There were no objections to the application from other departments or agencies. In Ms. Culley’s opinion, the proposed development is desirable for the appropriate development and use of the land.
Minor in Nature
45Ms. Wilson contends that the average lot width and lot area on the long street of David Drive of 36 houses is 24.67 m and 812.86 m2. However, this application requests 13.50 m and 426.1 m2 for Part 1 as well as 14.13 m and 425.9 m2 for Part 2. She testified this is almost 1/3 less than required by the ZBL and therefore is not a minor variance.
46It is the Appellant’s position that these requested variances will have an adverse impact on the surrounding land, adjacent properties and the community, over and above that caused by a building built within the dictates of the ZBL. Ms. Wilson contends the proposed double car driveways go against the existing by-laws, as at least one of the properties is too narrow (under 15 m) for this and should be limited to a single driveway. The variances are not minor as they do indeed create unacceptable adverse impacts on abutting properties (particularly 22 Bayne Avenue), and the neighbourhood in general. In addition, the numeric scope of the requested variances is not in keeping with other properties in the area with respect to lot width and lot area, and therefore the overall character of the area is not respected, and these variances cannot be considered minor in nature. These proposed lots are 1/3 smaller than the minimum required in the ZBL.
47Ms. Culley advised that the driveway will be reviewed during the Building Permit stage of the development. Ms. Culley testified that the Urban Design objectives allow for development that is not similar or the same as, but to enhance development and coexist with the surrounding neighborhood. Ms. Culley advised that their will be no adverse impacts to neighbours or otherwise and the application is minor in nature.
Appellant’s Other Concerns
48The Appellant advised there were numerous written submissions including Mr. Gervais’s which were presented to the CoA opposing the application. The Tribunal notes there were two Participants who entered evidence to this hearing, one for and one against the application.
49As noted above, the Appellant provided two witnesses including herself (Ms. Wilson) and relied on cross-examination evidence including their closing submissions.
50Mr. Gervais noted a City’s 311 Report (#2022-0037-4173) for a sewer lateral inspection of his house dated February 19, 2022 as a result of the main line backing up into his house. He advised this is the second time this has happened. He advised the two new dwellings on David Drive will drain into Bayne Avenue and flow into Meadowlands Drive and questioned whether the City services can support the additional capacity. The Appellant also questioned where the water would flow from the drains on the roof.
51Ms. Culley testified that there were conditions imposed on the consent application for the owner to provide evidence that a grading and drainage plan to be submitted to the satisfaction of the Planning Staff.
52The opinion of Ms. Culley to the Tribunal was that the application has regard to provincial interest and s. 2 of the Act.
53Ms. Culley testified that the application for minor variance meets the four tests as outlined in the Act:
the variances meet the intent and purpose of the City OP;
meet the intent and purpose of the City ZBL;
are considered to be desirable for the appropriate development or use of the property; and
are considered to be minor in nature.
FINDINGS AND DISPOSITION
54In determining this matter, the Tribunal accepts and adopts the uncontroverted land use planning evidence and opinion provided by Ms. Culley, the only professional planning opinion before the Tribunal. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is satisfied that the minor variances meet the prescript of the four-tests.
55The Appellant presented multiple issues that mostly were based solely on apprehension. The mere apprehension or concern about a matter without any substantiation is not evidence. The Tribunal found that the Appellant presented minimal applicable planning evidence in this case.
56The Tribunal finds that the variances maintain the general intent and purpose of the City OP and the City ZBL with no adverse impacts, and therefore are minor in nature.
57Ms. Culley provided minimal evidence as to the proposal having regard to matters of the provincial interest and being consistent with the PPS, focusing more so on the four tests set out by s. 45(1) of the Act.
58Ms. Culley did, however, provide her summary opinion that the proposal as permitted with the variances, and as provided to this Tribunal, has regard for matters of provincial interest and that the proposal, when considered in its entirety, is consistent with relevant policies of the PPS.
59The Tribunal finds that the requested variances are desirable and have regard for matters of provincial interest under the Act and are consistent with the PPS. The Tribunal agrees with the CoA decision comments:
…the intent of compatibility is to allow for development that, although not necessarily the same as or similar to existing buildings in the vicinity, can enhance an established community through good design and coexist with existing development without causing undue adverse impacts.
60Regard has been given to the decision of the CoA and the information considered by it in the course of making its decision. Upon the evidence of Mr. Gervais and the written submissions to the CoA, the Tribunal is satisfied that the concerns raised by Mr. Gervais and the community were given appropriate consideration and that the minor variances will not result in undue adverse impacts. The Tribunal finds the proposed development will co-exist harmoniously in the neighborhood by creative infilling and intensification.
ORDER
61THE TRIBUNAL ORDERS that the appeal is dismissed, and the variances to Zoning By-law No. 85 of 2002 are authorized.
“Eric S. Crowe”
eric S. crowe
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.