Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 02, 2022
CASE NO(S).: OLT-21-001314
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Clea Mittag
Subject: Minor Variance
Property Address/Description: 25 Roslyn Avenue
Variance from By-law: 2008-250
Municipality: City of Ottawa
Municipal File No.: D-08-02-21/A-00103
OLT Lead Case No.: OLT-21-001314
OLT Case No.: OLT-21-001314
OLT Case Name: Mittag v. Ottawa (City)
Heard: January 25, 2022 by Video Hearing
APPEARANCES:
Parties
Representative
Clea Mittag
Niels Luettge
DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Clea Mittag appealed the decision of the Committee of Adjustment (“CoA”) for the City of Ottawa (“City”) refusing an application for minor variance from Zoning By-law No. 2008-250 (“ZBL”) affecting 25 Roslyn Avenue (“site”) in the City.
2The City advised the Tribunal in advance of the hearing that it would not be attending.
3Niels Luettge represented the Applicant, Ms. Mittag. Mr. Luettge is an Architectural Technologist registered under the Building Code Act who developed the architectural plans for this site. The Tribunal affirmed both Mr. Luettge and Ms. Mittag to enable their giving of evidence, while also allowing for their related submissions.
4The Tribunal marked the City’s Municipal Record as Exhibit 1 and the Applicant’s Submissions Folder as Exhibit 2.
5For the reasons that follow, the Tribunal will allow the appeal and authorize the requested variances.
REQUESTED VARIANCES
6The Applicant proposes to enlarge the second storey, at the rear of the existing, detached dwelling on the site, by extending the second storey 1.36 metres (“m”) to the side (north), and by extending the second storey 1.05 m to the rear (east). The side extension will overhang the existing outdoor space at ground level given the recessed north wall of the ground floor. Similarly, the rear extension will project slightly beyond the existing ground floor wall of the dwelling.
7This second storey addition requires two variances arising from the ZBL provision that requires a minimum total side yard setback of 1.8 m, with one side yard setback a minimum of 0.6 m. The requested variances are:
− a north interior side yard setback of 0.1 m; and,
− a south interior side yard setback of 0.37 m.
LEGISLATIVE TESTS
8In making a decision under the Planning Act (“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).
9Applications 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,
ii. maintain the general intent and purpose of the zoning by-law,
iii. are desirable for the appropriate development or use of the land, building or structure, and,
iv. are minor.
EVIDENCE
10Mr. Luettge explained that the proposed second storey addition is proposed to accommodate the needs of the family residing there. The proposed setbacks from the side lot lines are a continuation of the existing setbacks of the dwelling that constitute legal non-complying setbacks. He notes that the neighbourhood consists of narrow lots with tight side yards and little separation between dwellings.
11To the matters raised at the CoA, Mr. Luettge explained that this site has access to an existing right-of-way (“RoW”) registered on the abutting property to the north, and that such RoW imposes no restriction on this site, as confirmed by the surveyor’s note contained in Exhibit 2. In relation to trees, Mr. Luettge advised that identifying trees that may be affected by development is a standard requirement of the City, and that this site and its abutting City street allowance contain no trees. This site and the abutting lots contain no trees between the dwellings owing to the limited separation between houses. He noted that any trees in the vicinity are not affected by this second storey addition and can be adequately protected during construction in accordance with City requirements.
12Ms. Mittag confirmed that no concerns have been expressed by abutting neighbours to the proposed variances for this relatively small enlargement of the second storey.
13Mr. Luettge submitted that the proposed variances satisfy the four tests as follows. The small addition of 15 square metres to the second storey is warranted for the housing needs of the occupants, enlarges an existing second storey without encroaching closer to side lot lines than the existing building, represents a bump-out on the north side to provide shelter from the elements at the entrance door below, and results in no reduction of outdoor greenspace on the property. This addition has no effect on the street appearance of the dwelling and its design is not imposing to the appearance of the site. The requested variances amount to an extension of the existing, legal non-complying side yards of the dwelling. The City’s Official Plan (“OP”) and ZBL permit residential uses on this site and the addition reflects the size and style of buildings in the area. As such, Mr. Luettge submitted that the variances have suitable regard for the OP and ZBL, are appropriate for the area, and are minor.
14To the report in Exhibit 1 by City Planner Craig Hamilton, Mr. Luettge confirmed the acceptance of the “Additional Comments” consisting of standard City requirements during the building permit approval process for such matters as grading, tree protection, drainage, Rideau Valley Conservation Authority approval, and compliance with any applicable easements.
FINDINGS
15On the submissions and evidence from Mr. Luettge and Ms. Mittag, and on Mr. Hamilton’s planning report, the Tribunal will grant the requested variances.
16Although Mr. Hamilton had recommended that the CoA adjourn the application for clarification on tree protection raised by the City’s Infill Forester, his report goes on to opine that the requested second storey addition “adheres to the Official Plan’s vision of redevelopment and general improvement which maintains the single detached dwelling condition predominant within the subject neighbourhood.” Relative to the applicable zone, he notes the intention “to utilize the setbacks currently maintained by the existing side walls of the single detached dwelling at the second storey.” Further, Mr. Hamilton concludes that “Planning Staff are of the opinion that the requested … relief … is appropriate and will have no adverse impact on the character of the street or the neighbourhood” and that “the setback[s] appear characteristic of this street.”
17Mr. Hamilton’s report notes “no conditions” if the variances are approved, and lists “Additional Comments” related to the standard City requirements as noted above by Mr. Luettge. Mr. Hamilton also recommended that any approval should be tied to the Site Plan dated July 16, 2021. Such plans are contained in Exhibit 2 and Mr. Luettge confirmed that no changes have been made to the plans as originally filed with the application.
18The Tribunal finds that the variances maintain the general intent and purpose of the OP and ZBL by resulting in a suitable dwelling within a residential area that meets the housing needs of its residents, in keeping with the surrounding residential area. The relatively small expansion of the second storey to the rear of the dwelling, and maintaining the existing side yard setbacks of the existing dwelling, result in appropriate development for the site and area. Given no further encroachment to the existing minimum setbacks of the dwelling, and the expansion applying to the second floor only, the resulting variances are considered minor.
19The Tribunal notes that the absence of concerns from adjoining neighbours helps substantiate the suitability of the requested variances.
20Mr. Hamilton raised no issues in his report regarding provincial interests or the PPS. The Tribunal finds that the requested variances have regard for the provincial interests under the Act and are consistent with the PPS.
21In making this Decision, the Tribunal has had regard for the issues raised through the CoA decision and the information the CoA had available at that time. Matters of tree protection and registered easements, among other standard City requirements, will be suitably addressed when a building permit is sought.
ORDER
22The Tribunal Orders that the appeal is allowed and the requested variances are authorized for the proposed second storey addition in accordance with the Site Plan dated July 16, 2021, and subject to the Additional Comments listed on pages 2 and 3 of Mr. Hamilton’s report dated July 16, 2021.
“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.