Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 28, 2023

CASE NO(S).: OLT-22-004643

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

Applicant/Appellant: 2707120 Ontario Inc.

Subject: Minor Variance

Description: To permit the construction of a three-storey (plus basement) low-rise apartment building, with a total of 16 units

Reference Number: D08-02-22/A-00221

Property Address: 436 Athlone Avenue

Municipality/UT: City of Ottawa

OLT Case No: OLT-22-004643

OLT Lead Case No: OLT-22-004643

OLT Case Name: 2707120 Ontario Inc. v. Ottawa (City)

Heard: January 23, 2023 by Video Hearing

APPEARANCES:

Parties Counsel

2707120 Ontario Inc. Greg Meeds

City of Ottawa did not appear

DECISION DELIVERED BY S. deBOER AND K. SMITH AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision pertains to the Appeal under s. 45(12) of the Planning Act by 2707120 Ontario Inc. (the “Appellant”) against the City of Ottawa (the “City”) Committee of Adjustment (the “COA”) decision to approve three of the variances and not approving the fourth requested variance in relation to the City of Ottawa Zoning By-law 2008-250 (the “ZBL”).

2The proposed application is requesting the approval of minor variances for the property municipally known as 436 Athlone Avenue (the “SP”) in the City of Ottawa. The application is requiring the minor variances in order to construct a new low rise apartment building with a total of 16 units. Currently the SP contains a single detached residential dwelling. The SP is located within the Westboro neighbourhood in the City of Ottawa. This neighbourhood is located west of the downtown core between the Ottawa River and the 417 Highway. This area has seen a considerable amount of intensification in recent years consisting of low-rise infill as well as mid to high-rise developments. One block north is a main east to west arterial road (Richmond Road) which is served by local public transit. Further north is the Westboro Light Rail Transit (the “LRT”) which provides public rapid transit throughout the City. The LRT is approximately 600m or within a 10-minute walk from the SP.

3The application was presented to the City’s Planning Department (the “Staff”) and was deemed complete on July 21, 2022. The application was presented at the COA meeting on September 21, 2022. At the request of the Staff and agreed upon by the Applicant, the application was adjourned in order for Staff to have enough time to allow the Applicant to resubmit plans pertaining to the bay windows of the proposal. The revised application was heard at the COA meeting of October 5, 2022.

4The revised application was requesting the following variances for the approval of the COA:

(a) To permit a reduced rear yard setback of 25% of the lot depth or 7.6 metres, whereas the By-law states that the minimum required rear yard setback is 30% of the lot depth or 9.1 metres.

(b) To permit a reduced landscape buffer at the rear property line comprising of an area equal to 37.9 square metres and abutting 40 per cent of the rear lot line, whereas the By-law requires a minimum landscape buffer that comprises an area of 45.86 square metres and abutting at least 50 per cent of the rear lot line.

(c) To reduce the minimum required tenant parking spaces to 0, whereas the By-law requires a minimum of 2 parking spaces.

(d) To reduce the minimum required visitor parking spaces to 0, whereas the By-law requires a minimum of 0.4 parking spaces.

5After taking into consideration the application, Staff recommendations and comments from the public, the COA approved three of the four variances. The variance that was not approved was the variance pertaining to the rear yard setback relief.

6The Applicant filed an appeal to the Ontario Land Tribunal (the “Tribunal”) on November 2, 2022, requesting that a Hearing be granted to review the merits of all four requested variances. The Hearing was scheduled and heard on January 23, 2023.

LEGISLATIVE FRAMEWORK

7An appeal pursuant to s. 45 of the Act is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variances:

(a) maintains the general intent and purpose of the official plan (the “OP”);

(b) maintains the general intent and purpose of the Zoning By-law;

(c) is minor in nature; and

(d) is desirable for the appropriate development or use of the land building or structure.

8In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter, in this case the application for variance, must be consistent with the Provincial Policy Statement, 2020 (the “PPS”). The Tribunal must also have regard to matters of Provincial interest, as well as regard for the decision of the COA and the information considered by it in the course of making that decision.

ISSUES AND EVIDENCE

9Prior to the commencement of the Hearing the Tribunal was made aware that the City did not have interest in this Hearing and would not be appearing.

10Mr. Meeds presented three witnesses to the Tribunal in support of the Appellant’s position. The first witness was Ms. Kayla Blakely, a candidate member for both the Canadian Institute of Planners (CIP) and the Ontario Professional Planners Institute (OPPI). She was the planner that was retained by the Appellant to provide professional planning expertise to the Tribunal in this matter. She was affirmed and qualified to give expert planning opinion evidence pertaining to the matter that was before the Tribunal.

11The second witness was Ms. Rosaline Hill, who was the architect that designed the proposed building. She was affirmed and qualified to give expert opinion evidence in the area of architecture pertaining to the proposal before the Tribunal.

12The third witness was Ms. Margot Linker. She was summoned by the Appellant to give evidence pertaining to her planning opinion based on her report to the COA on this application. She was affirmed and qualified to give expert opinion evidence on the application in this matter.

First Witness, Ms. Kayla Blakely

13Ms. Blakely took the Tribunal through her photos of the site and the neighbourhood. Surrounding the SP is a mix of residential uses including two and two-and-a-half and three storey dwellings, along with some low-rise apartment complexes.

14Ms. Blakely took the Tribunal through the PPS, specifically s. 1.1.3 pertaining to “Settlement Areas”:

1.1.3 Settlement Areas

Settlement areas are urban areas and rural settlement areas, and include cities, towns, villages and hamlets. Ontario’s settlement areas vary significantly in terms of size, density, population, economic activity, diversity and intensity of land uses, service levels, and types of infrastructure available.

The vitality and regeneration of settlement areas is critical to the long-term economic prosperity of our communities. Development pressures and land use change will vary across Ontario. It is in the interest of all communities to use land and resources wisely, to promote efficient development patterns, protect resources, promote green spaces, ensure effective use of infrastructure and public service facilities and minimize unnecessary public expenditures.

1.1.3.1 Settlement areas shall be the focus of growth and development.

1.1.3.2 Land use patterns within settlement areas shall be based on densities and a mix of land uses which:

a) efficiently use land and resources;

b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion;

c) minimize negative impacts to air quality and climate change, and promote energy efficiency;

d) prepare for the impacts of a changing climate;

e) support active transportation;

f) are transit-supportive, where transit is planned, exists or may be developed; and

g) are freight-supportive.

Land use patterns within settlement areas shall also be based on a range of uses and opportunities for intensification and redevelopment in accordance with the criteria in policy 1.1.3.3, where this can be accommodated.

1.1.3.3 Planning authorities shall identify appropriate locations and promote opportunities for transit-supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment where this can be accommodated taking into account existing building stock or areas, including brownfield sites, and the availability of suitable existing or planned infrastructure and public service facilities required to accommodate projected needs.

15In Ms. Blakely’s opinion, the application meets these policies and as such, meets the standards of the PPS as it promotes an efficient land development pattern that is supportive of public transit.

Maintains the General Intent and Purpose of the OP

16The application was filed prior to the new City OP coming into affect. Ms. Blakely gave planning evidence based on both the old OP and the new OP.

Old OP (Prior to November 2022)

17The SP is designated within the General Urban Area of the old OP and s. 2.2 of the former OP states that as apart of its strategic direction, intensification and infill within the General Urban Area will occur close to major roads and public transit.

18Section 2.3 of the former OP concerns infrastructure including transportation, transit and parking. Policy 36 states:

36. Outside intensification target areas, the City may establish maximum requirements for on-site parking and reduce or eliminate minimum parking requirements:

a. Within 800 metres walking distance of a rapid transit station or within 400 metres walking distance of the Transit Priority Network; or

b. Within 400 metres walking distance of a Traditional Mainstreet where the requirement to provide parking, the small size, dimensions and other characteristics of existing lots preclude a change in use or small-scale intensification. [Amendment #150, LPAT Decision October 22, 2018].

19Section 3.6.1 focuses on the General Urban Area and this policy states:

...Within neighbourhoods, the zoning by-law will allow those uses that provide for the local, everyday needs of the residents, including shopping, schools, recreation and services. Uses that also serve wider parts of the city will be located at the edges of neighbourhoods on roads where the needs of these land uses (such as transit, car and truck access, and parking) can be more easily met and impacts controlled. Subject to the policies below, the City supports infill development and other intensification within the General Urban Area in a manner that enhances and complements the desirable characteristics and ensures the long-term vitality of the many existing communities that make up the city.

20Policies 3, 4 and 5 specifically concerns the General Urban Area and states:

3. Building height in the General Urban Area will continue to be predominantly Low-Rise. Within this range, changes in building form, height and density will be evaluated based upon compatibility with the existing context and the planned function of the area. Secondary plans or zoning that currently permit building heights greater than four Storeys will remain in effect.

4. Notwithstanding Policy 3, new taller buildings may be considered for sites that:

a. front an Arterial Road on Schedules E or F of this Plan and which are:

i. within 800 metres walking distance of a Rapid Transit Station on Schedule D of this Plan, or

ii. on a Transit Priority Corridor on Schedule D of this Plan. For the purposes of this policy only, the “Transit Street” defined in the Riverside South Community Design Plan is considered an Arterial Road;

b. are in an area already characterised by taller buildings or sites zoned to permit taller buildings. [Amendment #150, LPAT October 22, 2018]

5. The City supports intensification in the General Urban Area where it will complement the existing pattern and scale of development and planned function of the area. The predominant form of development and intensification will be semi-detached and other ground-oriented multiple unit housing. When considering a proposal for residential intensification through infill or redevelopment in the General Urban Area, the City will:

a. Assess the compatibility of new development as it relates to existing community character so that it enhances and builds upon desirable established patterns of built form and open spaces;

b. Consider its contribution to the maintenance and achievement of a balance of housing types and tenures to provide a full range of housing for a variety of demographic profiles throughout the General Urban Area; [Amendment #150, LPAT July 18, 2019]

21In Ms. Blakely’s opinion, the proposal conforms to the policies of the old OP prior to November 2022.

New OP (After November 2022)

22Under the new OP, the neighbourhood is considered to be a part of the “Inner Urban” area of the City. One of the directives under s. 2.2.1:

Policy Intent:

i) Direct residential growth within the built-up urban area to support an evolution towards 15-minute neighbourhoods

The growth management strategy includes a 60 per cent intensification target by 2046. This means that by 2046, 60 per cent of all new dwelling units will be built in existing neighbourhoods as opposed to undeveloped greenfield lands.

This Plan envisions directing residential intensification towards Hubs, Corridors and surrounding Neighbourhoods where daily and weekly needs can be accessed within a short walk. This direction will support an evolution of these areas towards becoming 15-minute neighbourhoods. It will also contribute to the needs of an increasingly diverse population with a range of abilities, incomes, ages and cultural needs by enhancing accessibility to more vibrant areas with social interaction, cultural organizations, health services and community facilities;

This necessitates both simplifying the rules for intensification and using design approaches to create the demand for living in multi-family housing typologies.

23Section 2.2.4 concerning “Healthy and Inclusive Communities” states:

Policy Intent:

1. Encourage development of healthy, walkable, 15-minute neighbourhoods that feature a range of housing options, supporting services and amenities Healthy, walkable, 15-minute neighbourhoods are compact, well-connected places with a clustering of a diverse mix of land uses; this includes a range of housing types and affordability, shops, services, access to food, schools and local child care, employment, greenspaces, parks and pathways. They are complete communities that support active transportation and transit, reduce car dependency and enable people to live car-light or car-free.

15-minute neighbourhoods allow people to walk to meet their daily or weekly needs by bringing destinations closer together. They enable easy, safe and enjoyable connections between destinations.

24As for supporting the shift towards sustainable modes of transportation, s. 4.1.4.2 states:

2. The City shall manage the supply of parking to minimize and to gradually reduce the total land area in the City consumed to provide surface parking. Minimum parking requirements may be reduced or eliminated, and maximum parking limits may be introduced, in all the following locations:

a) Hubs and Corridors;

b) Within a 600 metre radius or 800 metres walking distance, whichever is greatest, to existing or planned rapid transit stations;

c) Within a 300 metre radius or 400 metres walking distance, whichever is greatest, to existing or planned street transit stops along a Transit Priority Corridor or a Frequent Street Transit route; and

d) Other areas determined by Council.

25Section 5.6.1.1 pertains to providing built form direction for the urban area where intensification is anticipated to occur. Subsection 1 states:

1. The Evolving Overlay will apply to areas that are in a location or at stage of evolution that create the opportunity to achieve an urban form in terms of use, density, built form and site design. These areas are proximate to the boundaries of Hubs and Corridors as shown in the B-series of schedules of this Plan. The Evolving Overlay will be applied generally to the properties that have a lot line along a Minor Corridor; lands 150 meters from the boundary of a Hub or Mainstreet designation; and to lands within a 400-metre radius of a rapid transit station. The Overlay is intended to provide opportunities that allow the City to reach the goals of its Growth Management Framework for intensification through the Zoning By-law, by providing:

a) Guidance for a gradual change in character based on proximity to Hubs and Corridors,

b) Allowance for new building forms and typologies, such as missing middle housing;

c) Direction to built form and site design that support an evolution towards more urban built form patterns and applicable transportation mode share goals; and

d) Direction to govern the evaluation of development.

26In Ms. Blakely’s professional opinion, the application conforms to both plans, the OP prior to November 2022 and the new OP which took affect in November 2022.

Maintains the General Intent and Purpose of the ZBL

27Ms. Blakely stated that the SP is zoned “R4UC[2685]” which in context, means it is in the “Residential Fourth Density Zone, Urban Subzone UC, Exception 2685” which allows for a mix of residential uses and forms from single detached to low rise apartment dwellings that is in a compatible form to the existing neighbourhood. Exception 2685 allows for low-rise apartment dwellings of nine (9) or more units as long as the lot has a minimum width of 10 metre and a minimum area of 300 square metres. In her opinion, the SP exceeds these minimum requirements which allows for the proposed form to be built.

28The size of the SP allows for an off-street parking rate of zero spaces for the first twelve units and requires a parking rate of 0.5 spaces per unit above 12 units and 0.1 visitor parking spaces above the 12-unit mark. Ms. Blakely opined that if the SP were 11.5 square metres smaller, parking would be prohibited. As such, the parking request variances that were originally approved by the COA is in keeping with the general intent and purpose of the ZBL.

29Ms. Blakely stated that the soft landscape buffer variance request is in keeping with the ZBL as the reduced buffer request still allows for the use of the rear yard while providing the proper separation and privacy to be maintained. There is still access to the proposed accessory buildings as well as the proposed walkways. In her opinion, this requested variance meets the general intent and purpose of the ZBL.

30As for the reduced rear yard setback of 25% as to the minimum requirement of 30%, Ms. Blakely opined that this request allows for an identical setback to the building abutting to the north. This will allow for the privacy to be the same for both buildings and while still allowing for an adequate recreation area in the rear yard with privacy. The supplementation of private balconies for the above grade units allows for more of a greater functional space in the rear yard. In her opinion, the requested variance for the reduced rear yard setback maintains the general intent and purpose of the ZBL.

Desirable for the Appropriate Development or Use of the Land

31Ms. Blakely gave opinion that the proposal provides for an appropriate intensification which respects the character of the neighbourhood. The proposal is aimed for residents that require the use of public transit over private vehicles thus, not needing vehicle parking. The development’s renderings has taken into account public comments and will have rooflines and material uses that will blend into the existing neighbourhood. The rear yard alignment with the abutting building will allow for the maximum available privacy for both buildings. The proposal complies with the Urban Design Guidelines as a low-rise infill development and is a compatible development in the neighbourhood.

Minor in Nature

32Ms. Blakely opined that the proposal has taken into account comments from neighbouring property owners and the main issues concerning privacy. The proposal before the Tribunal has provided ample mitigation to these concerns by aligning the rear wall of the building to be in line with the abutting building. The windows have been modified in order to limit privacy issues with the adjacent dwellings.

33The proposal is an appropriate form that conforms to the existing neighbourhood and is within walking distance to public transit and to the rapid transit station. A surplus of bicycle storage provides for active forms of transit to be used to reduce the dependency on private vehicles.

34The development is an appropriate built form and the setbacks generally align with neighbouring dwellings and will allow for the proper enjoyment of the SP.

35Ms. Blakely opined, the proposed variances are minor in nature and will not have any adverse impacts to the neighbourhood.

Conclusionary Opinion

36In Ms. Blakely’s opinion, the application meets the four tests for minor variances. The proposal maintains the general intent and purpose of both OP’s and the ZBL. The application is a desirable use of the lands and is minor in nature.

Second Witness, Ms. Rosaline Hill

37Ms. Hill was the architect that worked with the applicant on this proposal from a building plan and architectural point of view. She gave opinion evidence that after the initial design and public consultation, the design was changed to conform more with the character and size of the surrounding neighbourhood. These design changes included matching the roofline and using materials that would be appropriate to match the neighbourhood character.

38Ms. Hill stated that the rear balconies were changes to allow for more privacy for the residents of the new building and for neighbouring properties. There was a redesign of the windows to ensure the maximum amount of privacy for both residents and abutting neighbours.

39Ms. Hill stated that these revisions were made before the application was heard before the COA. In her opinion, these revisions allow the application to meet the four tests for the variances that were applied for. The redesign is an appropriate built form that will fit into the existing character of the neighbourhood.

Third Witness, Ms. Margot Linker

40Ms. Linker confirmed for the Tribunal that she was the author of the Staff report for the application. Through the application process and the final application that was presented to the COA, she was in communication with the Applicant and the changes that occurred before the final application was presented before the COA.

41In her opinion, Ms. Linker felt that Staff had no concerns about the application and that the four tests for each variance being requested had been met. Each variance conforms general intent and purpose of the OP’s and the ZBL. In her opinion, the proposal is an appropriate use of the lands and is minor in nature. No conditions were requested by City Staff nor were imposed by the COA.

ANALYSIS AND FINDINGS

42In rendering a decision, the Tribunal must take into account the evidence that was presented before it. The Tribunal must also give regard to the decision of the COA and the items presented before the COA including public comments both written and orally submitted.

43The Tribunal finds that the final application that was presented to the COA and to the Tribunal have given regard to the comments received from Staff and the area residents in terms of the final design. The variances requested are required to maximize the number of units on the SP while minimizing the affects on the surrounding properties and buildings by aligning the rear wall to reduce overlook. Although there is no site plan in front of the Tribunal, the proposed design criteria will also assist in softening and integrating the proposed building into its surroundings.

44Upon the examination of the evidence as a whole, the Tribunal agrees with the decision of the COA with regards to the approval of three of the variances. However, the Tribunal does not agree with the COA with regards to the variance that was not granted. The Tribunal finds that all the requested variances meet the four tests as set out in s. 45 (1) of the Planning Act.

45The Tribunal finds that the unrefuted testimony provided by the witnesses has demonstrated that the proposal is consistent with the PPS, conforms with the previous version of the OP and with the new version of the OP for the City of Ottawa. The application maintains the general intent and purpose of both OP’s and the ZBL, is an appropriate use of the land and is minor in nature.

ORDER

46THE TRIBUNAL ORDERS that the appeal is allowed and the variances to the City of Ottawa By-law 2008-250, listed in paragraph 4 above, are authorized.

“S. deBoer”

S. deBOER

MEMBER

“K. Smith”

K. smith

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.