229 Beechwood Avenue Holdings Inc. v. Ottawa (City), 2023 CanLII 19246

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 09, 2023

CASE NO(S).: OLT-22-004483

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Applicant and Appellant: 229 Beechwood Avenue Holdings Inc. & 241 Beechwood Avenue Holdings Inc.

Subject: Appeal of refusal of Heritage Permit Application

Purpose: To permit two low-rise apartment buildings

Property Address/Description: 229-247 Beechwood Avenue

Municipality: City of Ottawa

Municipality File No.: ACS2022-PIE-RHU-0030

OLT Case No.: OLT-22-004483

OLT Lead Case No.: OLT-22-004483

OLT Case Name: 229 Beechwood Avenue Holdings Inc. v. Ottawa (City)

Heard: January 31 – February 3, 2023 by video hearing and written submissions to February 24, 2023

APPEARANCES:

Parties

Counsel/Representative*

229 Beechwood Avenue Holdings Inc. and 241 Beechwood Avenue Holdings Inc.

M. Polowin A. Mihailescu

City of Ottawa

T. Marc

Rockcliffe Park Residents Association

M. Hayman*

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1229 Beechwood Avenue Holdings Inc. and 241 Beechwood Avenue Holdings Inc. (“Applicant”) appealed, under s. 42(6) of the Ontario Heritage Act (“OHA”), the City of Ottawa’s (“City”) refusal of a permit for demolition and new construction under the Heritage Conservation District Plan (“HCDP”) of Rockcliffe Park (“Rockcliffe”) in Ottawa.

2This case is a heritage matter focussing on whether the proposed development is suitable and compatible under the Rockcliffe HCDP. It is not a land use planning dispute over the type of land use. It is about the appearance of the development, including scale, articulation, separation, and greenery. Put simply, do the proposed buildings and greenscape “fit” with the Heritage District of Rockcliffe?

3For the reasons set out below, the Tribunal finds that, with some minor alterations, this development meets the heritage requirements for a permit for demolition and new construction.

PARTY STATUS

4At the outset of the hearing, the Tribunal granted Party status to the Rockcliffe Park Residents Association (“RPRA”), with consent of the City and opposition from the Applicant.

5The Applicant argued that the City will capably address the heritage issues without the need for another opposing Party, and that Rule 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”) permit consideration of Party status only “when that person satisfies any applicable legislative tests.” Because the OHA does not specify that additional Parties may be considered for s. 42(6) appeal hearings, the Applicant contended that the request must be denied.

6The Tribunal found that, for this hearing de novo of a refused application, it may benefit from the factual knowledge and perspectives of the RPRA, being a residents’ association covering the same geographic area of the HCDP of the Rockcliffe Park community. While acknowledging the absence of express permission for adding a Party under s. 42 of the OHA, the Tribunal found no statutory prohibition, and relied on the Ontario Land Tribunal Act (“OLTA”) s. 9 to give directions incidental to its powers that are considered fair, and on Rule 1.3 in pursuit of a fair, just and expeditious proceeding.

7At the Tribunal’s direction, the RPRA selected one representative to give evidence and the other to ask questions and make submissions.

8The Tribunal denied RPRA’s request for an adjournment and rescheduling of the hearing to enable its consideration of retaining professional assistance, but allowed RPRA to advise by mid-hearing whether it intended to call an expert. The Tribunal found that sufficient time had elapsed during which RPRA had known of this application and pending hearing to prepare in advance should it be granted Party status. In the end, the RPRA chose not to call an outside witness.

EVIDENCE

9Evidence was received from three experts whom the Tribunal qualified to provide opinion evidence: for the Applicant – John Stewart in heritage conservation, and Murray Chown in land use planning; and for the City – MacKenzie Kimm in heritage planning. Non-opinion evidence was received from planner Kayla Blakely for the Applicant’s overview of the proposed development, and from Susan Peterson, a long-time resident and active member of the RPRA.

PROPOSAL

10The “site” consists of five lots fronting onto Beechwood Avenue (“Beechwood”) within the community in east Ottawa known as Rockcliffe Park. Beechwood is considered colloquially to run east-west, but in this location it tracks north-south. The Tribunal will use compass directions in this Decision.

11The site is divided by Carsdale Avenue (“Carsdale”) which creates two corner lots: “229” to the south, consisting of municipal addresses 229 and 231 Beechwood; and “241” to the north, being 241, 245 and 247 Beechwood. Carsdale is a public street only for the depth of this site, where it becomes a private lane serving six newer dwellings to the west.

12The Applicant proposes to replace the site’s five dwellings with two apartment buildings facing Beechwood: a 42-unit, 3-storey building on 229; and a 52-unit, 4-storey building on 241; for a total of 94 dwelling units of studio and 1- and 2-bedroom units.

LEGAL CONTEXT

13On an appeal of the City’s refusal of a permit, the Tribunal, under s. 42(8) of the OHA, must hear the appeal and either dismiss the appeal or direct that the permit be issued, including any terms and conditions.

14Within a Heritage Conservation District (“HCD”/“District”), a Heritage Conservation District Plan (“HCDP”/“Plan”) is required by the OHA, s. 41.1(1). The current HCDP for Rockcliffe Park came into effect in 2019. It achieves the requirements of the OHA s. 41.1(5) by articulating objectives, cultural heritage value or interest, heritage attributes, and guidelines for achieving the objectives and managing change.

15Permit applications are assessed and decided based on the Plan. The OHA legislates the prevalence of the HCDP:

41.2(2) In the event of a conflict between a heritage conservation district plan and a municipal by-law that affects the designated district, the plan prevails to the extent of the conflict, but in all other respects the by-law remains in full force.

16Neither the City’s Official Plan (“OP”), including the Rockcliffe Park Secondary Plan (“SP”), nor the City’s Zoning By-law (“ZBL”) is before the Tribunal in this case for adjudication. They are referred to in evidence for their context and purpose, and all Parties agree that the proposed development of this site requires no amendments to the OP or ZBL. For development within a HCD, the OP encourages, among other requirements, meeting “intensification targets … through context-sensitive infill that conserves cultural heritage attributes” (s. 3.2.13).

17The Provincial Policy Statement, 2020 (“PPS”) s. 2.6.1 directs that “significant built heritage resources and significant cultural heritage landscapes shall be conserved.” While this policy is implemented through the OP and SP, the most direct and detailed implementation occurs through the HCDP.

18As submitted by the Applicant and the City, the Tribunal will focus on HCDP in assessing whether this development should proceed on this site in Rockcliffe Park.

PLANNING CONTEXT

19The local planning context for this site includes the following:

• The OP designates Beechwood Avenue as a: “Corridor – Mainstreet” on Schedule B2; “Transit Priority Corridor” on Schedule C2; and “Arterial – Existing” on Schedule C4; with associated designations and policies that permit residential intensification on this site.
• The SP specific to Rockcliffe designates this site as “Residential Multi-unit” along with all properties that front onto the west side of Beechwood within the four blocks extending from Acacia Avenue (“Acacia”) to Oakhill Avenue, all within the HCD.
• The ZBL zones this site as “R4 – Residential Fourth Density Zone – R4UC[1321] H(12.5)” permitting low-rise apartment dwelling(s) subject to nominal setbacks and provisions.
• The entire Village of Rockcliffe Park was designated in 1997 as a Heritage District under Part V of the OHA with associated Management Guidelines to protect the Village’s heritage character. The City adopted a new HCDP in 2016, which the Tribunal’s predecessor approved in effect in 2019. The HCDP requires a permit for the alternation or demolition of property subject to the Plan’s guidelines intended to protect Rockcliffe’s cultural heritage landscape.

Rockcliffe Park Heritage Conservation District Plan

20The Plan covers the entirety of the original Village of Rockcliffe Park. The objectives of s. 5 guide decisions in “managing change” to “retain, conserve and enhance” the cultural heritage of the District. Those objectives include:

• To conserve and enhance Rockcliffe Park’s unique character as a planned and designed 19th century community characterized by its narrow curving roads, without curbs or sidewalks, large lots and gardens, and buildings set within a visually continuous green landscape.
• To ensure that … new buildings contribute to and enhance the cultural heritage values of the HCD.
• To maintain the park-like attributes, qualities and atmosphere of the HCD.
• To ensure that … area characterized by houses located within a visually continuous, rich landscaped setting …
• To ensure that new house construction is compatible with, sympathetic to and has regard for the height, massing and setbacks of the established heritage character of the streetscape in order to conserve the character and pattern of the associated streetscape, while creating a distinction between new and old.
• To … use natural materials …
• To encourage the retention of existing trees … and landscape features …
• To encourage the maintenance of existing lot patterns that features smaller and larger lots.

21The heritage attributes noted in s. 6 of the Plan reflect the foregoing objectives, including: the unobtrusive and generous spacing of buildings; the profusion of trees; varied lot sizes; the dominance of soft landscaping; and low, dry stone walls. Of importance here is the third-last bullet of the Plan’s Heritage Attributes:

• The multi-unit buildings, small lots, and more modest houses in the area … referred to as the “Panhandle” that characterize [this part] of the District.

22The “Panhandle” of Rockcliffe Park is a southerly arm of the District that extends from Maple Avenue southward, between Beechwood and Acacia, until those two streets meet, forming the southerly point of the Panhandle.

23The Plan, s. 7.2 sets out Management Guidelines with the goal “to ensure that the cultural heritage value of the Rockcliffe Park HCD is conserved and enhanced.” It notes that:

Grade II properties in the HCD include those with buildings constructed outside of the period of highest significance, and buildings that are not sympathetic to the character of the HCD in their design and expression. … Landscapes associated with Grade II buildings may have more significance than their associated buildings.

24The Tribunal paraphrases the Plan’s relevant guidelines raised in evidence for this case, as follows (with issue topic underlined):

• The retention of Grade II buildings is an objective, but demolition may be considered for buildings of little significance, where the proposed building complies with all relevant guidelines, and any significant landscape features are retained. (s. 7.3.1.5, 6 and 7).
• The soft landscape must dominate over hard landscape to maintain a green setting, respect the character of the associated streetscape, include generous front yards for greenery and low stone walls, and the removal of mature trees is discouraged, but where necessary, appropriate replacement is required (Yards: s. 7.3.3.1 to 4).
• Driveways be designed to minimize hard surfaces (Driveways: s. 7.3.3.1 and 2).
• When joining smaller lots together, lot sizes shall be consistent with the general sizes within the associated streetscape and respect its character (Lot Sizes s. 7.3.3.1).
• New buildings are to: contribute to, and not detract from, the heritage character of the associated streetscape; reflect their own time but be sympathetic in mass, height and materials; if have integral garages, respect the heritage streetscape; protect expansive front lawns and the generous spacing of buildings with similar or larger setbacks of abutting properties; if proposed, have respectful terraces setback and not visible from the street (s. 7.4.2); and be sited generally in the same location and orientation as a replaced building (7.4.3.6).
• The hard and soft landscape must: respect existing conditions; dominate soft front and side yards; preserve features such as stone walls and front walkways (s. 7.4.3).

25The Plan s. 7.2 refers to applying the technical guidance of Parks Canada’s Standards and Guidelines for the Conservation of Historic Places in Canada, (“Canadian Guideline”) which requires consideration of standards, including:

11. Conserve the heritage value and character-defining elements when creating … new construction. Make the new work physically and visually compatible with, subordinate to and distinguishable from the historic place.

26To summarize all of the above briefly, the Plan requires a redevelopment to respect the form and function of Rockcliffe’s cultural heritage landscape, as tempered by the immediate context of the site, using the tests of compatibility and suitability.

ISSUES and FINDINGS

27The Tribunal finds in favour of this development, but tempered somewhat by certain adjustments arising from opposing evidence that will enhance the architectural expression and sufficiently mitigate any effects, as appropriate for Rockcliffe.

28The Parties agree that the similarity in the old and new OPs, the old being in place when this application was commenced, and the new in force today, results in the need for the Tribunal to consider only the new and current OP. The OP was reviewed for general context, but also does pertain to one issue raised by the City.

29Ms. Kimm opined that the absence of specific guidelines in the HCDP for multi-family dwellings suggests that apartment buildings are not anticipated or permitted by the Plan. The Tribunal prefers Mr. Chown’s emphasis that the HCDP predates the new OP, including the SP, and the latter specifically designates properties along Beechwood, including this site, for multi-unit housing.

30The Tribunal finds it untenable that City Council, with the acknowledged guidance of City staff, would have specifically designated lands for apartment development that it considered prohibited by the HCDP. While the HCDP takes precedence per the OHA s. 41.2(2), it also notes that “multi-unit buildings … in the … Panhandle … characterize [this part] of the District.” Rockcliffe, in total, is not void of multi-unit buildings, which do exist in two specific locations within the District, including the vicinity of this site. Interpreting the sequence and content of these documents leads the Tribunal to find that apartment buildings here are anticipated, if not preferred, by the OP, subject, of course, to adherence with the HCDP guidelines for contextual fit to protect the heritage landscape.

31The Tribunal finds that resolving the issues is a matter of balancing the opportunities and requirements of the Plan. For example, the Canadian Guideline calls for the simultaneous achievement of compatibility, subordination, and distinguishment from the historic character. Colloquially, these terms can be considered to enable a building to be seen as new, but must also fit with and not overly ‘stand out’ in the community. In this case, such considerations are a matter of balance both within the Panhandle and in reference to all of Rockcliffe. Recognizing Ms. Kimm’s reservations, the Tribunal is satisfied that the Plan can be adequately implemented by way of minor alterations to the proposal. Ms. Kimm acknowledged that it is possible to strike an acceptable balance between heritage conservation and the needs of growth.

32Ms. Peterson, for RPRA, espoused what might be considered extreme comments, but which the Tribunal views as underscoring the need to carefully consider compatibility under the Plan. Ms. Peterson views this “monster building” to be the “biggest threat ever” to Rockcliffe in its failure to fit with the cultural heritage landscape, and its “approval would mean the Plan is of no effect.” However, Ms. Peterson did advise that the RPRA is not opposed to a multi-unit building if its height, mass and scale are compatible with the surrounding area within Rockcliffe.

33As reviewed by Mr. Stewart, for several decades the municipal works/storage yard was located to the rear of this site and did not close until the early 2000s. The works yard was atypical of the picturesque landscape elsewhere in the Village. Mr. Chown added that this localized area of Beechwood continues to evolve, as exemplified by the newer, relatively large and close housing that replaced the works yard.

34Context is key, and this site benefits from a setting that is more permissive to modest density development. The site is located in the south half of the Panhandle where original lots and dwellings are smaller, and multi-unit buildings exist, unlike the Panhandle’s north half or much of the broader District beyond. The SP designates this site as “Residential Multi-unit”, as well as the abutting blocks to the north and south which also front Beechwood. Immediately beside (to the south of) 229 is a 3-storey apartment believed to contain 9 units, and the fourth property to the north of 241 displays a new 3-unit townhouse.

35Immediately behind, or west of the site, in the area of the former works yard, are six matching dwellings, with three on each side of Black Maple Private, being a private extension of Carsdale. These dwellings are detached but appear as townhouses due to their minimal separation and shallow front yards. Not given weight here, but certainly part of the urban setting outside of Rockcliffe, is the new 4- to 10-storey apartment complex directly across Beechwood from the site. Beechwood is a main arterial road connecting this northern area of east Ottawa with more central parts of the City.

36On the site today, 229’s two dwellings are close together with shallow front yards, and the red-brick corner building extends well to the rear along Carsdale. At 241, the three non-descript dwellings appear suitable for, if not in need of, replacement. Evaluated as Grade II buildings, each of these dwellings is eligible for demolition. As noted by the expert witnesses, retaining or replicating the low stone wall, and enhancing the somewhat intermittent streetside greenery are both necessary and desirable, as these features alone comprise the site’s main heritage attributes.

37The Plan’s reference to the Panhandle notes its “small lots” which the City and RPRF acknowledge may change but not to the degree proposed here. The Tribunal accepts the evidence from both the Applicant and the City that of importance is the apparent rhythm of buildings along the street. Such rhythm is varied today, with some side yards narrow and others wider, owing to the range of house sizes and styles on and near this site along Beechwood. By way of example, the Tribunal considers the three narrow townhouses to the north, each with its own driveway, to accelerate the street’s building rhythm, while this site may have the reverse effect. Such differences are compatible when considered along with other tempering techniques, including variations in the treatment of the proposed buildings’ facades, and screening by substantial front yard greenery. The Tribunal finds that such measures as proposed, and as augmented by the directions herein, will perpetuate the small lot cadence for this site and area along Beechwood.

38The Plan allows new buildings to reflect their own time but must be sympathetic to the area’s heritage character. The proposed buildings will each step back gradually from Beechwood, in response to the slight curve in the street here. The collective setbacks roughly equal the existing front yards, with 229 further back than its present dwellings, and 241 somewhat closer. Together, these new buildings will have staged and similar setbacks from Beechwood in keeping with the character of the area.

39The site reduces the drive/walkways from one or two at each of the five existing dwellings, to just one walkway and one driveway at each of the new buildings. Such plan enables the enhancement of continuous landscaping in the front yards to both screen the buildings and frame the street, an attribute that is sought repeatedly by the Plan.

40The City and RPRA oppose the overall size of the buildings. The mass of a building includes its footprint and height, and the resulting yards. Front yards were addressed above, and little mention of rear yards occurred at the hearing. Suffice it to note that the rear yards will not be visible from Beechwood and provide a reasonable separation for outdoor space from the (apparent) townhomes to the west. Side yards, however, are at issue.

41Two types of side yards exist here, with what can be considered “exterior” side yards along Carsdale, and “interior” side yards at the site’s north and south limits next to adjacent properties. Although the buildings will be deeper (east-west) than existing dwellings, the Carsdale exterior side yards will be similar to the existing houses, with 229 set back slightly further, and 241 mostly closer to Carsdale. Such framing of Carsdale will match the townhouse-style units immediately west along Black Maple Private.

42229’s interior side yard abuts the 3-storey apartment to the south. 241’s interior side yard abuts a 1-storey house to the north, resulting in its reasonable fourth-storey stepback.

43On building height, there is a rise and fall of rooflines along Beechwood that can be replicated by two buildings on this site. The grade rises to the west such that the west walls of the buildings will have their “ground” floor at or below grade, resulting in their physical and viewed height as similar to the dwellings to the west. Reasonable stepbacks are proposed at the north and south limits of the site. For the appearance of the façade heights, the Tribunal accepts the City’s concerns and will direct a somewhat deeper stepback parallel to Beechwood acceptable to the City and the Applicant. This alteration will help the buildings to appear as 2- and 3-storeys from the street, helping to mask the height in keeping with the area. The front yard landscaping, in due time, will also reduce the appearance of mass. Deeper front stepbacks, even if partially utilized for larger roof-top terraces, will also help reduce such terraces being viewed from the street. Such results will enable the buildings to sufficiently respect the Canadian Guideline to be compatible and subordinate with, while also distinguishable from, heritage character.

44To the rhythm of buildings along Beechwood in the Panhandle, the Tribunal accepts the Applicant’s intentions to vary the colour or brickwork of the façade, generally in keeping with the recessing front wall reflecting the gentle curve of Beechwood. The proposed variations of colour/brickwork are relatively subtle, which may be acceptable, but again, the Tribunal will defer the final variations to the Applicant and the City.

45On lot size and building rhythm, the Tribunal notes RPRF’s argument that the three townhouse units to the north represent suitable and compatible development in keeping with all aspects of heritage character. The Tribunal, however, while not fully disagreeing, considers that if these townhouses were replicated on the five lots of this site, a similar façade and building rhythm would result as proposed here, except that much less greenspace would result, owing to the many driveways.

46Opposition was heard on the bright and possibly reflective metal cladding of the recessed top floor on each building. The Tribunal accepts that a different texture there compared to the rest of the facade, along with the stepback, help the buildings to appear lower. The Tribunal will mandate a different texture/colour there and directs the Applicant and the City to find an acceptable solution.

47Street-side landscaping is stressed by the Parties as a fundamental requirement of the Plan in preserving the cultural heritage landscape of Rockcliffe. The Tribunal finds that the Applicant provides sufficient intention and attention to front yard landscaping that creates the potential for this site to improve the greenery along Beechwood and to be more in keeping with areas further north. As Ms. Kimm opined, the overall appearance should be “buildings within a green setting.” The dual advantage of intensive greenery is to mask the buildings and to better unify this side of Beechwood.

48Greenery of varying heights will also help mask the grade level entrances, raised as a concern by Ms. Kimm. While incline walkways and steps are common in the Panhandle’s sloping terrain, the Tribunal accepts the grade level walkways here for accessibility to contemporary buildings, subject again to suitable adjacent masking by greenery and potentially future tree cover overhead.

49While approving the development, this fundamental feature of greenspace causes the Tribunal to direct the Applicant to work with the City on final details for landscaping, which the Tribunal directs must intend (over time) for a substantial tree and shrub screening along the full frontage, and to a lesser extent along Carsdale where possible. The front yard exceptions will be the walkway and driveway for each building, which again the Tribunal will direct a suitable, attractive surface material/texture be selected with the City’s input. While the Tribunal acknowledges that these are detailed directions, it is the details that will help ensure this site blends with and enhances the Rockcliffe heritage character.

50Other, smaller redevelopments have occurred along Beechwood and behind this site within the Panhandle, but this site will be the largest. It, in turn, will help set the context for potential further developments within the SP’s multi-unit designation, which must also meet the requirements of the Plan. Just as other multi-unit residential complexes appear to contextually co-exist to the east of Mackay Lake in Rockcliffe, this area fronting Beechwood in the Panhandle, that already contains multi-unit forms of housing, can achieve the same: compatible with and sympathetic to the District’s heritage character.

51The Tribunal finds that this development, with the scale and appearance adjustments as directed: is consistent with the PPS; raises no issues with conformity with the OP and compliance with the ZBL; and of primary importance here, satisfies the requirements of the Rockcliffe Park HCDP.

52The Applicant and the City will determine the alterations to final plans, which may be reinforced through the Site Plan Application for this site which is in process at the City.

ORDER

53The Tribunal Orders, pursuant to s. 42(8)(b) of the Ontario Heritage Act, that the appeals are allowed in part, and directs the City of Ottawa to issue the permit(s), subject to the condition:

That 229 Beechwood Avenue Holdings Inc. and 241 Beechwood Avenue Holdings Inc. amend and finalize the plans to the satisfaction of the City of Ottawa related to:

• top floor stepbacks (para. 43);
• the façades’ variation in colour/texture (para. 44 and 46);
• greenspace and hardscape enhancements (para. 49); and,
• other minor adjustments that may arise.

54The Tribunal directs the Applicant and the City to resolve the foregoing matters, but should issues remain, the Tribunal may be contacted through the Case Coordinator.

“S. Tousaw”

S. tousaw

VICE CHAIR

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.