Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 14, 2023
CASE NO(S).: OLT-22-004709
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Tolou Group Inc.
Subject: Minor Variance
Description: Minor Variances filed concurrently with a consent application to subdivide the subject property into 2 separate parcels of land
Reference Number: DO-02-22/A-00118
Property Address: 308 Atlantis Avenue
Municipality: City of Ottawa
OLT Case No.: OLT-22-004709
OLT Lead Case No.: OLT-22-004709
OLT Case Name: Tolou Group Inc. v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Reference Number: DO-02-22/A-00119
Property Address: 308 Atlantis Avenue
Municipality: City of Ottawa
OLT Case No.: OLT-22-004710
OLT Lead Case No.: OLT-22-004709
Heard: March 1, 2023 by video conference
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Toulou Group Inc. | Rouhollah Alizadeh* - Director (Self-Represented Applicant/Appellant) |
| City of Ottawa | Garett Schromm |
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS AND CARMINE TUCCI ON MARCH 1, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This matter is before the Tribunal based on an appeal of the Committee of Adjustment (“CoA”) decision, issued on November 16, 2022, in the City of Ottawa (“City”), related to the property municipally know as 308 Atlantis Avenue (“Subject Property”).
2The Tribunal considered an appeal for several Minor Variances in accordance with s. 45(12) of the Planning Act (“Act”), filed with the City concurrently with a consent application to subdivide the Subject Property into two separate parcels of land.
3The applications were adjourned sine die after a CoA hearing on June 15, 2022, and the hearing resumed on October 19, 2022. Additional variances were added with a revised plan submitted to the CoA on October 19, 2022. The plans were revised to protect two trees at the front of the new dwelling with a reduced interior side yard as required by a tree information report.
4Variance (d) requesting a reduced parking space length was deemed removed/withdrawn during testimony by the Applicant’s agent at the CoA.
5Based on the revised plans, the CoA was satisfied that variances (a), (b), (c), (e), (f), (h) and (i) met all four tests under s. 45(1) of the Act as the proposal is desirable for the neighbourhood with the appropriate use of land, conforms with the neighbourhood character, represents orderly development and will not create an unacceptable adverse impact on adjacent properties and the neighbourhood (CoA Decision, Exhibit 2).
6The CoA was not satisfied with variance (g) for reducing the interior northerly side yard setback as it did not meet the four tests under s. 45(1) of the Act as there was insufficient evidence to prove that it is desirable for the appropriate development or use of the land (CoA Decision, Exhibit 2). The CoA decision did approve variances (a), (b), (c), (e), (f), (h) and (i).
7The consent application was approved by the CoA at the October 19, 2022 hearing, subject to a number of conditions.
8The Applicant/Appellant (“Appellant”), is appealing the decision of the CoA on the basis that the variance for a front yard parking variance matter (“d”), was refused, as it extended beyond the front property line as shown on the Site Plan (Exhibit 1).
9Furthermore, the Appellant is also appealing the CoA’s refusal of the proposed new home’s interior northerly side yard setback (“g”).
10There were no other Parties or Participants requesting status before the Tribunal, and Notice of Hearing was properly circulated.
THE CITY’S PRELIMINARY ISSUES
11The first preliminary issue, submitted by Counsel for the City, related to the question of a possible error found in the appeal document for issue (g), which references a variance relating to the existing home. This was identified by the Appellant as a typographical error in correspondence with the Tribunal, and that this error in the appeal needed to be addressed or corrected, at the discretion of the Tribunal.
12Counsel for the City did not dispute that this may have been an error and deferred to the ruling of the Tribunal, by not taking a position on the issue.
13Counsel for the City also submitted that the variance before the Tribunal relating to the parking variance matter (d), was not properly before the Tribunal as a matter under appeal. Counsel submitted that the record of the CoA showed that the parking variance (d), was rescinded or removed by the CoA, at the request of the Appellant’s representative, Mr. Vahidi, a licensed Realtor, and that the parking variance request (d), was withdrawn.
14Counsel further submitted the CoA’s decision, which also reflected that the parking variance request was deleted, and shown as being withdrawn in its decision, and confirmed again, that this request came directly from the Appellant’s representative. Counsel also submitted video evidence (Exhibit 2), asserting this would corroborate Counsel’s argument.
15Counsel further submitted that any amendment to the parking variance (d) request at this time, would not constitute a minor amendment to the appeal, and that a new hearing should be scheduled if the parking variance request (d) is to be considered by the Tribunal.
APPELLANT’S PRELIMINARY SUBMISSIONS
16The Appellant testified that the error regarding the proposed new home’s interior northerly side yard setback (g) was a typographical error and asked the Tribunal to permit the issue to be accurately reflected in the appeal at the Tribunal, with the typographical correction.
17Regarding the parking variance request (d), the Appellant submitted a letter from the City of Ottawa planning staff outlining the CoA’s decision on all matters issued on November 16, 2022, relating to the Subject Property. Among the numerous variances and a consent application, which were mostly approved, the City letter referenced the parking variance request (d) was “refused”, although the formal decision from the CoA, issued on November 16, 2022, showed the parking variance request (d) was deleted or removed in the decision.
18The Appellant also submitted an Affidavit from Mr. Vahidi, claiming that he did not remove the parking variance request (d), at the hearing, and that the appeal should accurately reflect that this issue should be heard by the Tribunal.
PRELIMINARY ANALYSIS
19Following these preliminary submissions before the Tribunal, the panel determined that it was appropriate to deliberate further and observe the video evidence of the CoA, along with a further review of written submissions from both Parties related to these two preliminary issues.
PRELIMINARY ISSUES – TRIBUNAL DETERMINATIONS
20The Tribunal determined that it would not proceed with the matter related to the parking variance (d), as it is not properly before the Tribunal. The CoA was advised of the removal/withdrawal of the variance at the October 19, 2022 hearing by the Appellant’s representative, and the variance request was clearly deemed withdrawn in the CoA’s decision issued on November 16, 2022. This was also evident following a detailed review of the CoA video hearing, and written CoA decision submissions from Counsel for the City.
21Therefore, the matter related to the parking variance (d), is not properly before the Tribunal, and will not be considered at the hearing.
22Regarding the proposed new home’s interior northerly side yard setback (g), the Tribunal determined there is a typographical error in the appeal. Therefore, a correction was deemed to be a minor amendment, and accordingly, the appeal on this issue will proceed to a hearing.
LEGISLATIVE FRAMEWORK
23An appeal under s. 45 of the Act is a hearing de novo. It is up to the Applicant to show that the application meets the four tests as set out in s. 45(1), specifically that the requested variances:
maintain the general intent and purpose of the Official Plan (“OP”);
maintain the general intent and purpose of the Zoning By-law (“ZBL”);
are desirable for the appropriate development or use of the land, building or structure; and
are minor in nature.
24The Tribunal must also have regard to matters of Provincial interest as set out in s. 2 of the Act, be consistent with the Provincial Policy Statement, 2020 (“PPS”) and it must have regard to the decision of the CoA and the information considered by it, as required under s. 2.1(1) of the Act.
APPELLANT’S TESTIMONY AND SUMBISSIONS
New Home’s Interior Side-Yard Setback (g)-Variance
25The Appellant testified that the appeal regarding the proposed new home’s interior northerly side yard setback (g), meets the required four tests in s. 45 of the Act.
Is the Variance Minor
26The Appellant testified that the new dwelling is in a residential area, consisting of a variety of different and similar homes, with similar sized lots. He also asserted the new dwelling, and the variance in question was well-received by area residents and touched on the fact that several existing homes in the area have similar setback circumstances. Furthermore, the Appellant testified that the setback of 0.61 metres, is very close to the required 1.2 metres City setback, and the difference is only 0.59 metres.
Is the Variance Desirable for the Appropriate Development or Use of the Land, Building or Structure
27The Appellant testified that based on the surrounding area, and the predominance of single-family dwellings in the neighbourhood, the variance requested was contextually acceptable, and the built form and design represent good development and sound building design and structure.
Does the Variance Maintain the General Intent and Purpose of the Zoning By-Law
28The Appellant testified that the variance maintained the general intent and purpose of the City’s ZBL, and that the predominance of single-family dwellings in the neighbourhood reflected a similar pattern with current homes, and newly constructed dwellings.
29Furthermore, the Appellant testified that he had revised plans, following previous discussions with City officials, with specific regard to tree preservation and implemented those revisions, cognizant of the ZBL and the community associations’ concerns.
Does the Variance Maintain the General Intent and Purpose of the Official Plan
30Regarding the question of whether the variance is minor, the Appellant testified that the new dwelling reflects a consistent approach with the area, and the retention of the existing dwelling also meets the important elements within the City’s OP.
31Finally, the Appellant asserted the new dwelling, and the variance in question was well-received by area residents and reiterated the fact that a number of existing homes in the area have similar setback circumstances. Evidence from geodata was also submitted, corroborating this testimony (Exhibit 1).
PLANNING TESTIMONY – CITY OF OTTAWA
32Mr. Craig Hamilton was introduced by Counsel for the City to the Tribunal as a land use planning expert. After careful consideration and review of the Witness’ professional history and curriculum vitae, the expert Witness was invited by the Tribunal to provide expert testimony related to the variance appeal.
33The Witness opined that this variance was of no serious concern from a planning and land use perspective, that it met the four tests in the Act, and that in the lead up to the CoA hearing in November 2022, there was no recommendation from the City’s planning department to refuse this specific variance request.
34Furthermore, the Witness opined that there were also no concerns with the remaining variances that had previously been approved by the CoA, and that the variances had proper regard for s. 2 of the Act. During cross-examination, the Witness also testified that there were other examples of similar variances that have been approved in the immediate area, and that the variance requested was reasonable and contextually consistent with the residential neighbourhood.
35Finally, the Witness testified that should the Appellant require any future assistance from the City, related to any re-design to accommodate any future parking or by-law related concerns, the City would welcome the opportunity to seek any further solutions with the Appellant.
ANALYSIS AND DISPOSITION
36The one variance request in dispute before the Tribunal represents a 0.59 metre setback difference in total sum, as it relates to the City’s ZBL, and based on the Appellant’s testimony and submissions, as well as the City’s uncontroverted expert Witness testimony, the Tribunal finds that this proposed new home’s interior northerly side yard setback (g), is consistent with good planning.
37Furthermore, while the Appellant’s testimony is not expert testimony, the Tribunal was convinced that the total of eight (8) variances requested met the four tests in the Act, including that they are minor, desirable for the appropriate development or use of the land, building or structure, they maintain the general intent and purpose of the zoning by-law, and the variances maintain the general intent and purpose of the official plan.
38Furthermore, the City’s decision not to oppose these variances provides added credibility to the appeal and the Tribunal determines the appeal should be allowed.
ORDER
39THE TRIBUNAL ORDERS that the appeal is allowed in part, and the eight (8) variances to the City of Ottawa Zoning By-law as set out in Attachment 1 to this Decision and Order are hereby authorized subject to the stipulated conditions imposed for three of the variances.
“Steven T. Mastoras”
STEVEN T. MASTORAS
MEMBER
“Carmine Tucci”
CARMINE TUCCI
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.
ATTACHMENT 1
Authorized Variances
The following eight (8) variances are authorized subject to the conditions noted with respect to variances 3, 7 and 8:
308 Atlantis Avenue (existing detached dwelling):
A reduced lot width of 7.33 metres is authorized, whereas the By-law requires a minimum lot width of 15 metres.
A reduced lot area of 233.4 square metres is authorized, whereas the By-law requires a minimum lot area of 450 square metres.
A reduced interior side yard northerly setback of 0.52 metres is authorized whereas the By-law requires a minimum interior side yard setback of 1.2 metres. This variance is authorized subject to the condition that the variance shall apply only to the existing dwelling known municipally as 308 Atlantis Avenue and shall be restricted to the life of this building only.
310 Atlantis Avenue, Part 2 (proposed two-storey detached dwelling):
A reduced lot width of 7.91 metres is authorized, whereas the By-law requires a minimum lot width of 15 metres.
A reduced lot area of 241 square metres is authorized whereas the By-law requires a minimum lot area of 450 square metres.
A reduced interior northerly side yard setback of 0.61 metres is authorized, whereas the By-law requires a minimum interior side yard setback of 1.2 metres.
A reduced rear yard setback of 24.2 % of the lot depth or 7.38 metres is authorized, whereas the By-law requires a minimum rear yard setback of 28% of the lot depth or 8.53 metres but may not be less than 6 metres and may not exceed 7.5 metres. This variance is authorized subject to the condition that the location and size of the proposed construction shall be in accordance with the revised site plan filed, Committee of Adjustment date stamped September 9, 2022, and the revised elevation plans filed, Committee of Adjustment date stamped June 13, 2022, as they relate to the requested variance.
A reduced rear yard area of 24.2% of the lot area or 58.37 square metres is authorized, whereas the By-law requires a minimum rear yard area of 25% of the lot area, or in this case, a rear yard area of 60.25 square metres. This variance is authorized subject to the condition that the location and size of the proposed construction shall be in accordance with the revised site plan filed, Committee of Adjustment date stamped September 9, 2022, and the revised elevation plans filed, Committee of Adjustment date stamped June 13, 2022, as they relate to the requested variance.