Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 28, 2023

CASE NO(S).: OLT-21-004301

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

Applicant: Casa Verde Construction Inc. Appellants: Robert Bateman, Casa Verde Construction Inc. Subject: Minor Variance Description: To permit a front wall and driveway of a detached dwelling to face Rebecca Crescent Reference Number: D08-02-22/A-00100 Property Address: 41 Rebecca Crescent Municipality: City of Ottawa OLT Case No.: OLT-22-004301 OLT Lead Case No.: OLT-22-004301 OLT Case Name: Bateman v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Casa Verde Construction Inc. Appellant: Casa Verde Construction Inc. Subject: Consent Description: To sever 41 Rebecca Crescent into two fully conforming parcels to facilitate the development of two new detached dwellings Reference Number: D08-01-22/B-00108 Property Address: 41 Rebecca Crescent Municipality: City of Ottawa OLT Case No.: OLT-22-004302 OLT Lead Case No.: OLT-22-004301 OLT Case Name: Casa Verde Construction Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Casa Verde Construction Inc. Appellant: Casa Verde Construction Inc. Subject: Consent Description: To sever 41 Rebecca Crescent into two fully conforming parcels to facilitate the development of two new detached dwellings Reference Number: D08-01-22/B-00109 Property Address: 41 Rebecca Crescent Municipality: City of Ottawa OLT Case No.: OLT-22-004303 OLT Lead Case No.: OLT-22-004301 OLT Case Name: Casa Verde Construction Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Casa Verde Construction Inc. Appellant: Robert Bateman Subject: Consent Description: To sever 41 Rebecca Crescent into two fully conforming parcels to facilitate the development of two new detached dwellings Reference Number: D08-01-22/B-00108 Property Address: 41 Rebecca Crescent Municipality: City of Ottawa OLT Case No.: OLT-22-004304 OLT Lead Case No.: OLT-22-004301 OLT Case Name: Bateman v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Casa Verde Construction Inc. Appellant: Robert Bateman Subject: Consent Description: To sever 41 Rebecca Crescent into two fully conforming parcels to facilitate the development of two new detached dwellings Reference Number: D08-01-22/B-00108 Property Address: 41 Rebecca Crescent Municipality: City of Ottawa OLT Case No.: OLT-22-004305 OLT Lead Case No.: OLT-22-004301 OLT Case Name: Bateman v. Ottawa (City)

Heard: January 26, 2023 via Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Robert Bateman (“the Appellant”)	Self-Represented*
Casa Verde Construction Inc. (collectively “the Applicant”)	Roberto Aburto and Carolina Campos
City of Ottawa (the “City”) (the “Municipality”)	Timothy Marc

DECISION BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Tribunal is dealing with two appeals of decisions by the City of Ottawa Committee of Adjustment (“Committee”) authorizing a minor variance application (“MV Application”) and granting two consent applications regarding the property municipally known as 41 Rebecca Crescent (“Subject Property”) subject to certain conditions. The Appellant, neighbour, is appealing both decisions. While the Applicant is solely appealing the condition imposed on the MV application.

2The applications are designed to facilitate the construction of two new single-family dwellings to replace the current house on the Subject Property, at the corner of Rebecca Crescent and Combermere Lane. The Appellant is appealing both the consent and minor variance decisions. The Applicant’s appeal is restricted to the site plan condition imposed by the Committee on the MV Application.

3The planning staff report recommended that the Committee grant the consent applications for the Subject Property as depicted in the sketch attached as Appendix 1 subject to the conditions set out in Appendix 2 (“Consent Conditions”) and authorize the MV application, without any conditions. The Committee consented to the two consent applications subject to the Consent Conditions and allowed the MV application subject to a requirement that the site plan (sketch) submitted with the application should control the development on the Subject Property. The Appellant, who owns a neighbouring property and made representations at the Committee meeting, filed appeals to the Tribunal of both Committee decisions. The Applicant’s appeal is strictly focused on the site plan condition in the MV application decision and the appeal relating to the consent decision was dropped.

HEARING

4The Appellant was self-represented at the hearing and chose not to call any planning witnesses in support of his appeal. The Applicant engaged Murray Chown, a registered planner who was qualified as an expert to give opinion evidence in the field of land use planning. The Applicant also issued a summons to the City Planner, Lucy Ramirez and to Nancy Young, the City Forester, who were both involved in reviewing the applications. Ms. Ramirez was qualified as an expert to give opinion evidence in the field of land use planning and Ms. Young was qualified as an expert to give opinion evidence in the area of forestry.

5Ms. Lucie Clermont, a neighbour requested party status. Due to concerns expressed by counsel regarding duplication and delay, she was granted participant status.

6The appeal of the Committee decision to the Tribunal requires a hearing de novo of both planning applications. Mr. Chown and Ms. Ramirez gave evidence to the Tribunal relating to the applicable tests under the Planning Act. (collectively “the Planning Evidence”). Ms. Young provided her views on the trees located on the Subject Property.

7The City supported the applications. The Appellant and Ms. Clermont were opposed to the applications.

Planning evidence

8Mr. Chown provided an overview of the property and the Neighbourhood. The Subject Property is in the Beacon Hill – Cyrville Ward (Ward 11) in the City of Ottawa northeast of the intersection of Rebecca Crescent and Combermere Lane. The property has approximately 60 metres of frontage along Rebecca Crescent, 27.3 metres of frontage along Combermere Lane, and an area of 2,393 square metres.

9The property is designated as a General Urban Area in the City of Ottawa’s 2003 Official Plan (“OP”), the applicable OP. The property is zoned as Residential First Density, Subzone AA (R1AA) by the City of Ottawa’s Zoning By-law 2008-250 (“ZB”).

minor variance appeal

10The following minor variances are requested by the MV Application:

a) To permit the front wall and driveway of a detached dwelling to face Rebecca Crescent, whereas where a corner lot in the R1 Zone within Schedule 342 is proposed to be severed, the Zoning By-law requires each of the detached dwellings have their front wall and driveway facing frontage on different streets whether or not that frontage is the front lot line [Section 144, Provision 4(b)(iii)].

b) To permit the front wall and driveway of a detached dwelling to face Rebecca Crescent, whereas where a corner lot in the R1 Zone within Schedule 342 is proposed to be severed, the Zoning By-law requires each of the detached dwellings have their front wall and driveway facing frontage on different streets whether or not that frontage is the front lot line [Table 156B, Endnote 3(iii)].

11The key issue to be decided by this case relates to whether the minor variance should be allowed and whether it should be subject to any conditions. The minor variance sought relates to both the proposed houses and driveways for the Retained Lot and Severed Lot fronting onto Rebecca Crescent. The ZB requires that one front onto Rebecca Crescent and the other onto Combermere Lane. Both the City and the Applicant wish to preserve the high priority trees that are found along the Combermere Lane side of the property. The Appellant’s central argument is that he is opposed to the MV application since he believes that the variance is major, and the application should not be allowed.

12The following evidence was provided regarding the MV application’s compliance with section 45(1) of the Planning Act (“Act”).

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

13The Subject Property is designated General Urban Area OP which supports “the development of a full range and choice of housing types to meet the needs of all ages, incomes, and life circumstances” and infill development and other intensification. (Section 3.6.1) Policy 5 of Section 3.6.1 of the Official Plan states:

“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.”

14Section 2.4.5 of the OP has a goal of maintaining a target for forest cover of 30 percent of the entire City with a goal to increase forest cover through the planning and development process.

15Without approval of the requested variances, if the consent applications are granted, a driveway will be required along Combermere Lane resulting in the removal of trees along this street which is heavily forested with high priority trees according to Ms. Young’s evidence. Both the City and the Applicant’s planners agree that this would be undesirable. The frontage of the proposed corner lot along Rebecca Crescent includes an existing driveway and there will be fewer trees removed. Approval of the requested variance will preserve trees along Combermere Lane and contribute to protecting the urban tree canopy.

16The Tribunal accepts the planning evidence and Ms. Young’s evidence. It finds that the requested variances maintain the general intent and purpose of the OP since they will result in gentle intensification on a corner lot which is context-sensitive to the community. Fewer high priority trees along Combermere Lane will be removed supporting the OP’s forest cover targets.

general intent and purpose of the zoning by-law

17The planning evidence was that the detached dwellings as proposed are permitted by the ZB on the Subject Property, if the consents are granted. The requested variances seek permission for the front wall and driveway of one of the detached dwellings and lots to face Rebecca Crescent rather than Combermere Lane. The planning evidence was that this will not result in an undue adverse impact. The ZB requirement to place houses on the corner lot on different streets is simply a planning preference. The variance will preserve trees along Combermere, maintaining the residential character of the area, resulting in a net benefit to the community.

18The Tribunal finds that the requested variances maintain the general intent and purpose of the ZB.

desirability

19The Appellant argues that the application is undesirable since it will result in a development that is out of character with the neighbourhood. The planning evidence was that the requested variances support intensification of the Subject Property with two new detached dwellings rather than the one that currently exists on the Subject Property. As of right, if the consents are granted, the Applicant is entitled to construct two homes, one fronting onto Combermere and the other on Rebecca. Approval of the variances will avoid the requirement to remove existing trees along Combermere Lane to provide a driveway for the property and thus is desirable since it enhances the urban forest.

20The Tribunal prefers the planning evidence over the lay opinion evidence and argument of the Appellant and finds that the requested variances are considered desirable for the use of the land since they will result in the preservation of high priority trees.

Minor

21The Appellant’s evidence was that the proposed variances are considered major by the community due to the significant number of residents in the community who signed the petition against the development. The test for measuring whether the variance is minor is whether it will result in an undue adverse planning impact. The planning evidence was clear from both planners. A driveway along Rebecca Crescent will have minimal impact on existing trees while a new driveway off Combermere Lane would require the removal of a more significant number of high priority trees and an undue adverse planning impact. A planning benefit will be achieved by allowing the variances.

22The Tribunal prefers the planning evidence and finds that the requested variances are minor.

consent applications and SECTION 51(24) OF THE PLANNING ACT

23Turning now to the consent applications, under the ZB the minimum required lot width is 30 metres, and the minimum required lot area is 681.1 square metres. The proposed severances are depicted in the Draft Reference Plan attached as Appendix 1. The Appellant argues that the consent applications do not meet the minimum lot area requirements of the ZB. The planning evidence confirmed that Consent Applications 1 and 2 conform to the lot width and lot area requirements of the ZB as follows.

1. Consent Application 1 will create a corner lot identified as Part 2 on the Plan (“Severed Lot with a lot width of 30.19 metres, approximately 26.4 metres of frontage along Rebecca Crescent, approximately 27.3 metres of frontage along Combermere Lane, and lot area of 1,316 square metres.

2. Consent Application 2 will create an interior lot identified as Part 1 on the Plan (“Retained Lot”) with a lot width of 31.52 metres, approximately 33.6 metres of frontage along Rebecca Crescent, and an area of 1,078 square metres.

24The Tribunal accepts the planning evidence and finds that the proposed severed lots will conform with the minimum lot width and area requirements of the ZB of 30 metres and 681.1 square metres. These minimum requirements are drawn from Table 156B of Zoning By-law 2008-250 (the “ZBL”), which provides that corner lots in Schedule 342 (except in Area A of Schedule 344), may have a minimum lot area of no less than 49% of the required minimum lot area of the subzone if:

a) Permission to sever is granted by the Committee;

b) Only one detached dwelling is built of each severed lot; and

c) Each of the detached dwellings have their front wall and driveway facing frontage on different streets.

25Mr. Chown advised the Tribunal that The Subject Property is located within a fully developed neighbourhood where hard and soft services are available. The proposed severances are therefore not premature and are in the public interest. He then went on to review the conformance of the severance applications with section 51(24) of the Planning Act.

CRITERIA	Planning Evidence
(24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,
(a) The effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;	The Subject Property is in the urban area of the City. The proposed severances have regard for the following matters of provincial interest: • The adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems; • The orderly development of safe and healthy communities; • The adequate provision of a full range of housing; and • The appropriate location of growth and development
(b) Whether the proposed subdivision is premature or in the public interest;	The Subject Property is located within a fully developed neighbourhood where hard and soft services are available. The proposed severances are not premature and are in the public’s interest.
(c) Whether the plan conforms to the official plan and adjacent plans of subdivision, if any;	The applications conform with the OP since they support the intensification goals of the OP. They will result in modest intensification with two detached dwellings that are compatible with the low-rise development character in the local area.
(d) The suitability of the land for the purposes for which it is to be subdivided;	Each severed lot is proposed to be developed to accommodate a detached dwelling supporting the residential intensification goals of the OP. The proposed parcels are suitable to be developed for residential purposes.
(d.1) If any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;	Not Applicable.
(e) The number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;	Not Applicable.
(f) The dimensions and shapes of the proposed lots;	The proposed parcels meet the minimum lot area and lot width requirements for a detached dwelling in the R1AA zone. The dimensions and shapes of the proposed lots are suitable for development for residential purposes.
(g) The restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;	Not Applicable.
(h) Conservation of natural resources and flood control;	The Subject Property is not within or adjacent to a flood plain. There are no identified natural resources on the Subject Property.
(i) The adequacy of utilities and municipal services;	Municipal services are available along both Rebecca Crescent and Combermere Lane.
(j) The adequacy of school sites;	The proposed severances are not anticipated to have an impact on the adequacy of school sites.
(k) The area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;	A proposed condition requires the payment of cash in lieu of the conveyance of parkland.
(l) The extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and	Not Applicable.
(m) The interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c.23, s.30; 2001, c.32, s.31 (2); 2006, c.23, s.22 (3, 4); 2016, c.25, Sched. 4, s.8 (2).	Not Applicable.

conditions

26The planning evidence supported the Consent Conditions proposed by the City’s planning department and confirmed that they are reasonable and typical for such types of severances. The Tribunal accepts this planning evidence.

PPS

27Mr. Chown advised the Tribunal that all the applications before the Tribunal are consistent with the PPS. There will be a gentle redevelopment of the property that modestly adds to the housing stock resulting in a more efficient use of the lands. This is consistent with the intensification goals of the PPS and will use existing infrastructure within a built-up area of the City which is Transit Rich.

site plan Condition for the MV application

28The Committee imposed the italicized condition on its authorization of the MV application:

The Committee therefore authorizes the requested variance, “subject to the location and size of the proposed construction being in accordance with the site plan filed, Committee of Adjustment date stamped March 30, 2022”.

29The planning evidence was that the planned locations and size of the proposed construction in the sketch are inconsistent with the goal of conditions one and ten of the Consent Conditions of protecting trees and it was inappropriate for the Committee to impose this condition on its authorization of the MV application.

30The Tribunal accepts the planning evidence and finds that the MV application should be authorized without any conditions.

summary

31The Tribunal accepts the planning evidence and the forestry evidence and finds that the requested variances are minor in nature and should be authorized without any conditions and the consent applications should be allowed, subject to the Consent Conditions.

ORDER

THE TRIBUNAL ORDERS that:

1. The appeal of the minor variance applications by the Appellant is dismissed and the appeal of the minor variance applications by the Applicant is allowed and the variances to By-law 2008-250 are authorized, without any conditions, and

2. The appeals of the consent applications are dismissed and the provisional consents are to be given subject to the conditions set out in Appendix 2 to this Order.

“A. Cornacchia”

a. cornacchia

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.

APPENDIX 1

APPENDIX 2

PROPOSED CONDITIONS TO CONSENT DECISION

1. That the Owners provide evidence that the accompanying Minor Variance application (D08-02-22/A-00100) have been approved, with all levels of appeal exhausted.

2. That the Owner(s) provide proof (demolition permit and inspection report) to the satisfaction of the Development Review Manager of the East Branch within Planning, Real Estate 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.

3. That the Owner(s) provide proof to the satisfaction of the Development Review Manager of the East Branch within Planning, Real Estate and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee that the existing sewer and water services were capped/blanked outside of the Critical Root Zone of any protected trees, where possible. Further, that written confirmation is submitted from a City Inspector that confirms that tree protection and mitigation measures were followed during the demolition process.

4. That the Owner(s) provide evidence (servicing plan), to the satisfaction of the Development Review Manager of the East Branch within Planning, Real Estate 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.

5. 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 East Branch within Planning, Real Estate 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 East Branch within Planning, Real Estate and Economic Development Department, or his/her designate.

6. That the Owner 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 East Branch within Planning, Real Estate and Economic Development Department, or his/her designate, which provides the following covenant/notice that runs with the land and binds future Owner(s) on subsequent transfers:

“The detached dwelling, 41 Rebecca Crescent, shall have the driveway accessible from Rebecca Crescent only. Access to Combermere Lane is prohibited.”

7. That the Owner(s) enter into a Development Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the East Branch within Planning, Real Estate and Economic Development Department, or his/her designate, to require that an asphalt overlay will be installed, at the Owner(s) expense, on Rebecca Crescent, fronting the subject lands, over the entire public driving surface area within the limits of the overlay, if the approved Site Servicing Plan shows three or more cuts within the pavement surface. The overlay must be carried out to the satisfaction of the Development Review Manager of the East Branch within Planning, Real Estate 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.

If the Development Review Manager of the East Branch within Planning, Real Estate and Economic Development Department, or his/her designate determines that a Development Agreement requiring an asphalt overlay is no longer necessary, this condition shall be deemed as fulfilled.

8. That the Owner convey a 3 m x 3 m corner sight triangle located at the intersection of Rebecca Crescent and Combermere Lane to the City, with all costs to be borne by the Owner(s), to the satisfaction of the Surveys and Mapping Branch of the City. This area will be free of all structures, new plantings, etc. and will allow a proper sighting distance for motorists when performing turning movements within the intersection. The Committee must receive written confirmation from City Legal Services that the transfer of the lands to the City has been registered.

9. That the Owner(s) provide evidence (payment receipt) to the Committee that payment has been made to the City of Ottawa of cash-in-lieu of the conveyance of land for park or other public recreational purposes, plus applicable appraisal costs. The value of the 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. Information regarding the appraisal process can be obtained by contacting the Planner.

10. The Owner 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 East Branch within Planning, Real Estate and Economic Development Department, or his/her designate to address the following:

a. The Owner agrees that the location of the driveways, services, and grading/drainage located at 41 Rebecca Crescent and 39 Rebecca Crescent will account for the protection of high and medium priority trees, including the reduction of excavation within the Critical Root Zones. This may result in a requirement to relocate driveways, services, and grading/drainage. Prior to the issuance of a Building Permit, written confirmation is required from a City Infill Forester that confirms that they are satisfied with the location of the driveways, services, and grading/drainage.

b. The Owner(s) agree to provide securities for a period of three years following the completion of construction, which is equivalent to the value of the trees to be protected (Tree 1 and 6). The Owner(s) agree that the security shall be returned to the owner only upon the City having received a report from an arborist or appropriate professional confirming for both Trees 1 and 6, that they are in good health and condition, and remain structurally stable. The Owner(s) acknowledge and agree that if, in the opinion of the City Forester and/or the Development Review Manager of the East Branch within Planning, Real Estate and Economic Development Department, or his/her designate, the report indicates that either or both Trees 1 or 6 are declining and must be removed, the Security for that tree, will be forfeited

c. If the Tree Information Report (TIR) submitted with the building permit indicates that adjacent or boundaries tree(s) will be impacted, then the Owner is to provide a signed letter of permission from the owner of identified adjacent or boundary tree(s), for the proposed removal or operations impacting the tree(s). The applicant acknowledges that a tree removal permit cannot be issued without the permission of all owners of a tree, and that if a permission letter cannot be produced, then the development plan must be revised to allow for the retention and protection of the adjacent or boundary.

11. That the Owner(s) file with the Committee a copy of the registered Reference Plan prepared by an Ontario Land Surveyor registered in the Province of Ontario, and signed by the Registrar, confirming the frontage and area of the severed land. If the Registered Plan does not indicate the lot area, a letter from the Surveyor confirming the area is required. The Registered Reference Plan must conform substantially to the Draft Reference Plan filed with the Application for Consent.

12. That upon completion of the above conditions, and within the two-year period outlined above, the Owner(s) file with the Committee, the “electronic registration in preparation documents” for a Conveyance for which the Consent is required.