Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 31, 2023 CASE NO(S).: OLT-23-000206

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Christopher Hayman Subject: Minor Variance Description: To permit a conversion of an existing triplex into a four-unit dwelling Reference Number: D08-02-22/A-00318 Property Address: 214 Pretoria Avenue Municipality: City of Ottawa OLT Case No.: OLT-23-000206 OLT Lead Case No.: OLT-23-000206 OLT Case Name: Hayman v. Ottawa (City)

Heard: June 28, 2023 by Video Hearing

APPEARANCES:

Parties Chris Hayman

Counsel/Representative* Self-represented

DECISION DELIVERED BY S. Bobka AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1The matter before the Tribunal is an appeal by Chris Hayman (“Applicant”) of Minor Variances (“MV”) denied by the Committee of Adjustment (“COA”) of the City of Ottawa (“City”) for the property municipally known as 214 Pretoria Avenue in the City (“Subject Property”).

2The Applicant applied to the City for a total of six variances from Zoning By-law 2008-250 (“ZBL”) to permit the conversion of an existing triplex into a four-unit dwelling.

3Prior to the Hearing, the City advised the Tribunal that they had no instructions to appear at the Hearing.

DECISION

4For the reasons that follow, and upon various findings set out herein, the Tribunal determines that the legislative requirements, including the four tests under s. 45(1), of the Planning Act (“Act”) have been met and it is appropriate to allow the Appeal and permit the proposed variances.

SUBJECT PROPERTY

5The Subject Property is situated on an interior lot with a total lot size of 339.19 square metres (“sq m”) and currently contains a triplex dwelling with an amenity open space on the roof of the building, as well as three parking spots located behind the dwelling.

[6] The Subject Property is:

• designated as an Evolving Neighbourhood within the Inner Urban Transect in the Official Plan (“OP”);
• zoned R4UD (Residential Fourth Density, Subzone UD);
• located within Area X on Schedule 1A and Section 101(3)(a) of the ZBL; and
• serviced by existing municipal infrastructure.

LEGISLATIVE FRAMEWORK

[7] In determining this appeal brought under s. 45 of the Planning Act, it must be noted that this is a hearing de novo. The Applicant must demonstrate that the MVs meet the following four tests:

• Maintain the general intent and purpose of the OP?
• Maintain the general intent and purpose of the ZBL?
• Are minor?
• Are desirable for the appropriate development or use of the land?

8In addition, s. 3(5) of the Act requires that decisions of the Tribunal are consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

VARIANCES SOUGHT

9The Applicant requested Minor Variances from the ZBL as follows:

Minor Variance	Requested	Required by By-law
a) To permit a reduced soft landscaping area of	0 sq m	minimum of 35 sq m
b) To permit motor vehicle parking on a lot of	339.19 sq m	450 sq m or greater
c) To permit a reduced westerly interior side yard setback of	0.93 metres (“m”)	1.5 m
d) To permit an increased driveway width of	3.25 m	3 m
e) To permit a landscaped strip separating the driveway from an interior side lot line	0 m	not less than 0.15 m in width
f) To permit a reduced soft landscaping aggregated rectangular area of	0 sq m	25 sq m

HEARING

10Mr. Hayman was self-represented and did not call any witnesses at the Hearing. Instead, he referred to the reports from the City’s Planning Department (found in Exhibit 2) and a letter to the Tribunal which he authored as well as two emails from Margot Linker, a Planner for the City (all found in Exhibit 1). The Tribunal opted to affirm Mr. Hayman as a lay witness in order to consider any factual information he might provide regarding the application.

[11] The Tribunal received and marked the following Exhibits: Exhibit 1: Appellant Minor Variance Appeal Submission June 28, 2023 Exhibit 2: Referral Record

EVIDENCE

12Mr. Hayman provided the Tribunal with an overview and history of the proposal which involves the addition of a new unit in an unused basement space. He stated that all of the requested variances are the result of existing conditions and that no changes to the building’s exterior or yard are proposed.

13He confirmed that there are three existing parking spaces, which were established in 2011, as a requirement of the ZBL in effect at that time for the creation of the triplex; however, today the zoning requirements have changed and now emphasize soft landscaping and open areas. Through conversations with the City’s Planning Staff (“Staff”), it was suggested to Mr. Hayman that some or all of the parking spaces be removed in order to accommodate the new requirements.

[14] Mr. Hayman explained that he had spoken with:

all current tenants in the building in question and each one … [had] signed a letter of support to keep the exterior as is rather than have it replaced with soft landscaping. The proposal was also not challenged in any way by anyone including neighbours and community associations that were consulted. (Exhibit 1, page 1)

15Mr. Hayman highlighted the current need for additional housing units in the area and stated that there was significant interest in renting a unit in his building. He emphasized that in adding the fourth unit, he would not be making any changes to the exterior of the building, but rather just finishing the currently unfinished basement unit.

16Mr. Hayman explained that there had been COA meetings scheduled in January, February and March of 2023. At the first two meetings, the matter was adjourned to allow further discussion with the City’s Planning Department regarding the concerns over parking and soft landscaping.

17Mr. Hayman recounted that at the January meeting, Ms. Linker (a Planner with the City) stated that the Planning Department would not support the application as it didn’t meet the four tests; however, she was corrected by her senior colleague, Jean-Charles Renaud (also a Planner with the City) who stated that the proposal did meet the general intent of the ZBL and the OP. The Applicant explained that at the March 1, 2023 COA meeting, Ms. Linker confirmed to the COA that the application met the four tests of a minor variance.

[18] Ms. Linker’s change in position is outlined in a March 20, 2023 email supplied by the Applicant, in which she stated (emphasis added by the Applicant):

If this was a new build or appeared to be recent piecemeal development avoiding this prohibition of parking provision, staff likely would have taken a stronger stance against the application as, in our opinion, it would not have met the four tests. However, staff recognize that the construction permit for a three-unit dwelling was issued in 2012, prior to the city-initiated rezoning to R4UD and staff are not aware of a similar provision prohibiting parking for low-rise apartments that existed at that time. While staff are still of the opinion that the proposed additional unit to create a low-rise apartment dwelling does not meet the intent of Section 11.4 Policy 9(d) in the Official Plan or of the intent of the soft landscaping provisions in Section 161(15)(b)(i) and (iv), staff recognize the existing condition and are of the opinion that the addition of a unit in the basement with no exterior changes meets the general intent of the Official Plan and Zoning By-law as a whole.

Therefore, staff wrote a “concerns” report but did not “oppose” as we are of the opinion that it does not fail any of the tests for minor variance in this particular case. (Exhibit 1, p. 3-4)

19It was Mr. Hayman’s contention that Ms. Linker’s “erroneous comments made during the initial [January] hearing, which was later corrected, influenced the position of the committee who ultimately voted against the proposal.”

20Finally, Mr. Hayman stated that if he were building a four-unit apartment building today, he would have done all that he could to comply with the current zoning requirements for soft landscaping and open spaces; however, he had done his best and the proposal reflects an existing situation, which complied with the requirements (specifically the provision of parking) at the time of construction.

ANALYSIS AND FINDING

21The Tribunal notes the absence of the City in opposition to this Appeal.

22The Tribunal closely reviewed the files provided to it by the Municipality in the Referral Record (Exhibit 2), which contained 16 documents (totalling 140 pages) and one recording (totalling 12 minutes and 46 seconds).

23The Tribunal notes that within the Referral Record, there were three versions of the report titled ‘Comments to the Committee of Adjustment’ (“Planning Report”), each authored by Ms. Linker, who is a ‘Planner I’ with the City’s Planning, Real Estate and Economic Development Department (“Planning Department”) and signed by a senior colleague from the Planning Department (as specified below). The ‘Discussion and Rationale’ section of each version is substantively the same except for the concluding paragraph as shown below:

Version	Document Title in Referral Record	Relevant Date	Signed by Senior Colleague	Concluding paragraph (emphasis added by the Tribunal)
V1	10 Written Submissions (January 11).pdf	Dated January 6, 2023	Kersten Nitsche, MCIP RPP Planner III (A)	… staff are of the opinion that while some of the variances may be appropriate for the conversion, others do not meet the four tests under the Planning Act, particularly the variances to permit on-site vehicle parking and reduce landscaping. Staff recommend the removal of the vehicular parking spaces to accommodate the required on-site soft landscaping.
V2	10 Written Submissions (February 15).pdf	Date stamped as ‘Received’ by the COA on February 10, 2023	Jean-Charles Renaud, MCIP RPP Planner III	… staff are of the opinion that while some of the variances may be appropriate for the conversion, others could be refined to better meet the four tests under the Planning Act, particularly the variances to permit on-site vehicle parking and reduce landscaping.
V3	10 Written Submissions (March 1).pdf	Date stamped as ‘Received’ by the COA on February 24, 2023	Jean-Charles Renaud, MCIP RPP Planner III

24The Tribunal also notes that the first two versions also contain correspondence to the COA from Hydro One, the Ministry of Transportation and the Rideau Valley Conservation Authority indicating that they had no concerns regarding the proposal.

25All versions of the Planning Report explain that Staff did not have concerns with variances: (c) to reduce the westerly interior side yard setback; (d) to permit an increased driveway width; or (e) to permit a landscaped strip of 0 m separating the driveway from the interior side lot line.

[26] In Version 3, it states that the Planning Department had the following concerns with variances (a), (b) and (f) relating to parking and soft landscaping:

Staff note that the R4UD zone is explicit in prioritizing soft landscaping and the provision of parking as a secondary nature (and not even permitted for low-rise apartment dwellings on lots less than 450 square metres). The minimum required soft landscaping requirements set out in Section 161(15)(b)(i) & (iv) appropriately balance the need for greenspace with functional uses of the rear yard and ensures that the soft landscaping can be aggregated into a block large enough to support a tree…. Staff do not believe the provision of the parking spaces at the expense of providing the required on-site soft landscaping meets the intent of the Zoning By-law or Official Plan and, therefore, have concerns with the requested variance to reduce the required rectangular aggregated area of soft landscaping…. Staff have concerns with the variance to permit parking where it is prohibited on the subject site due to the lot size because despite the lot size, it would not be required for this development, and it is being provided at the expense of the opportunity to provide on-site soft landscaping….

Staff believe the removal of the parking spaces would allow for adequate on-site landscaping to be provided or, alternatively, to remove one or two parking spaces closes to the building in favour of soft landscaping and vehicle turning movements…. (Exhibit 2)

[27] The Tribunal also reviewed the part of the recording of the March 22, 2023 COA meeting pertaining to this matter and highlights the following passages in which Ms. Linker states:

And while we [Staff] believe that the intent of the Official Plan and Zoning By-law could be better met … Staff recognize that this is an existing condition and that the addition of a unit in this area aligns with the general intent of the Official Plan and Zoning By-law. (found at the 10:42 mark)

Overall looking at this project as a whole … Staff believe that this meets the general intent of the Official Plan and Zoning By-law; however, it could be better refined to better meet the intent, but it does not fail the test in Staff’s opinion…. (found at the 11:25 mark)

28As discussed above, the ‘Discussion and Rationale’ section of each version is substantively the same except for the concluding paragraph. In the first version, Staff uses the language that some of the variances “do not meet the four tests”; however, in the second and third iterations of the Planning Report, that language has been tempered to indicate that some variances “could be better refined to meet the four tests”.

29The Tribunal also notes that Hydro One, the Ministry of Transportation and the Rideau Valley Conservation Authority expressed no concerns regarding the proposal.

30The Tribunal carefully considered all of the materials provided, including the Planning Reports, as well as Ms. Linker’s email comments and her statements to the COA in the March recording. It also considered the timing of the aforementioned and finds that the most recent statements are generally supportive of the proposal. The Tribunal is satisfied that the proposed variances meet the general intent and purpose of both the OP and the ZBL. Regarding the OP, the proposal manages growth appropriately, supports low-rise intensification and will allow for an increased density. In terms of the ZBL, the proposal allows a range of residential building forms, provides an additional housing choice and effectively utilizes unused space.

31As the proposal does not alter the existing exterior conditions, nor will it negatively impact the building’s existing tenants or neighbours, the Tribunal finds the variances to be minor in nature.

32In addition, the Tribunal finds that the proposed variances are desirable as they will contribute to the creation of one additional dwelling in an appropriate location for gentle intensification with no changes to the exterior.

33The Tribunal has had regard for the decision of the COA as well as the information considered by it.

34The Tribunal finds that the proposal is consistent with the policies and direction provided for in the PPS as it is an efficient use of land, promotes a form of development within an existing built-up area, is compatible with adjacent land uses and building forms and would utilize existing infrastructure.

35The Tribunal finds the proposal has had regard for matters of Provincial interest, specifically (but not limited to): (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing, including affordable housing; and (p) the appropriate location of growth and development.

36In conclusion, the Tribunal finds that the proposal is consistent with the policy direction established by the PPS and meets the four tests of a minor variance. The Tribunal is further satisfied that the proposal has due regard for matters of Provincial interest, is consistent with the principles of good land use planning and is in the greater public interest by increasing housing opportunities.

ORDER

37THE TRIBUNAL ORDERS that the Appeal is allowed and the Variances to By-law No. 2008-250 are authorized.

“S. Bobka”

S. BOBKA 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.