Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 18, 2023

CASE NO(S).: OLT-23-000024

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

Applicant and Appellant: R & Y Holding Inc.

Subject: Minor Variance

Description: To permit conversion of an existing three-unit dwelling into a four-unit low-rise apartment dwelling

Reference Number: D08-02-22/A-00210

Property Address: 16 Lowrey Street

Municipality: City of Ottawa

OLT Case No.: OLT-23-000024

OLT Lead Case No.: OLT-23-000024

OLT Case Name: R & Y Holding Inc. v. Ottawa (City)

Heard: May 4, 2023, by Video Hearing

APPEARANCES:

Parties

R & Y Holdings Inc. ("Applicant/Appellant")

Counsel

Krista Libman Philip Osterhout

City of Ottawa ("City")

Did not appear

Link to Order

MEMORANDUM OF ORAL DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal involves an appeal brought pursuant to s. 45(12) of the Planning Act ("Act") from a refusal on December 16, 2022, by the City’s Committee of Adjustment of an application for a series of Minor Variances.

2The Applicant/Appellant’s Application seeks five variances with respect to the City’s Zoning By-law 2008-250 ("ZBL"):

a. To permit a reduced rear yard setback of 24% of the lot depth (7.25m) [whereas the ZBL requires a minimum rear yard setback of 30% of the lot depth (9.1m) - s.144 Table 144, Row (i)];

b. To permit a reduced rear yard area that comprises 22.6% of the lot area (68.4m²) [whereas the ZBL requires a rear yard area that comprises a minimum of 25% of the lot area (75.7m²) - s.144 (3) (a)];

c. To permit reduced interior side yard setbacks of 1.2m [whereas the ZBL requires a minimum interior side yard setback of 1.5m – s.162 Table 162A, column X];

d. To permit 14.5% of the area of the front façade to be recessed an additional 0.6m from the front setback line [whereas the ZBL requires at least 20% of the area of the front façade to be recessed an additional 0.6m from the front setback line - s.161 (15) (h)]; and,

e. To permit a path for movement of garbage containers that is interrupted [whereas the ZBL requires a path for movement of garbage containers that are uninterrupted by any window well, depression or grade change that would impede the movement of a wheeled garbage container - s.143 (1) (a) (iii)]

3A variance request relating to the width of the garbage pathway has been abandoned by the Applicant/Appellant as it is no longer required since the proposal is now to use a more efficient, logical, and direct pathway to the north of the building, rather than a more circuitous route on the south side of the building. The garbage room is on the north side of the building. The north side pathway meets the ZBL width standard of 1.2 m.

4There were no issues with service of the Notice of Hearing Event sent administratively by the Tribunal.

5Cheryl Parrott sought Party status. Ms. Parrott lives in the neighbourhood and had made representations against the Application before the Committee of Adjustment. The Tribunal explained to Ms. Parrott the difference between Party and Participant status, including the responsibilities associated with being a Party. Ms. Parrott insisted that she wished to be granted Party status. She indicated that she wished to testify and ask questions but did not intent to present an expert witness.

6Having carefully considered the request, the Tribunal did not grant Ms. Parrott Party status. The Tribunal notes that she is not an immediate neighbour nor a nearby resident. She resides approximately 350m away from the Applicant/Appellant’s property. Moreover, the Tribunal was not persuaded that, in the circumstances, including the fact that she did not intend to offer the evidence of an expert witness, Ms. Parrott’s participation as Party would have been necessary and helpful to the Tribunal in considering the issues. However, Ms. Parrott’s submission seeking Party status, dated April 24, 2023, was deemed by the Tribunal to be a Participant Statement. This included a Powerpoint presentation, which incorporated site photographs and other visual evidence, which was similar (but not identical) to her presentation before the Committee of Adjustment.

7No counsel appeared at the Hearing on behalf of the City.

EVIDENCE

8The evidence in support of the Application was provided by Murray Chown, retained by the Applicant/Appellant after the unfavourable decision of the Committee of Adjustment. He was qualified by the Tribunal as an expert in land use planning. He testified that he had fully reviewed the file.

9The Applicant/Appellant also summoned Margot Linker. She is an urban planner for the City and has knowledge of the application. Ms. Linker was qualified by the Tribunal as an expert in land use planning.

10Both expert witnesses relied on documents contained in the Applicant/Appellant’s Document Book, which was entered into evidence as Exhibit 1.

Subject Property and Surroundings

11The subject property, located at 16 Lowrey Street ("Subject Property"), is in the City’s Hintonburg neighbourhood. It is west of Parliament Hill and the downtown core. It is in close proximity to Bayview LRT Station to the east (approximately 400m) and to Tunney’s Pasture LRT Station to the west (approximately 800m). The area is comprised on an eclectic blend of both old and new built forms including single family dwellings, duplexes, and semi-detached homes. Redevelopment along Lowrey Street has been taking the form of higher density construction.

Background

12The requested variances are for existing conditions on the site. The building had recently been constructed as a three-unit dwelling. The Applicant/Appellant proposes the addition of a fourth unit within the building’s existing footprint by dividing a four-bedroom unit into two two-bedroom units. No material external alterations or works are proposed to accommodate the additional unit. The building would be considered a four-unit "low-rise apartment" building, triggering the need to comply to additional provisions under the ZBL. Low-rise apartments are subject to certain different performance standards that are not fully met by the existing building. However, only the set-back side yard standard, referred to paragraph 2(c) above, directly results from the proposed redevelopment from a three-unit to a four-unit building.

13The existing building received approval in 2019 through the City’s Committee of Adjustment ("2019 Decision"). Since then, the City has completed a review of the applicable Residential Fourth Density Zone, resulting in a series of amendments to the standards that apply to both three-unit dwellings, and low-rise apartments.

14The minor variances are therefore sought to permit the change in use within the existing built form and to regularize certain features of the building with respect to new provisions of the ZBL that were imposed after the construction of the existing building.

15City planning staff had no concerns with the Application and recommended approval to the Committee of Adjustment.

ANALYSIS

16To succeed, an applicant for authorization of variances must satisfy the Tribunal that the four tests set out under s. 45(1) of the Planning Act are met. The four tests require the Applicant/Appellant to satisfy the Tribunal that the variances:

i. Maintain the general intent and purpose of the official plan;

ii. Maintain the general intent and purpose of the Zoning By-law;

iii. Are desirable for the appropriate development or use of the land building or structure; and,

iv. Are minor.

17In addition, as with any decision that affects a planning matter, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act and, in accordance with s. 3(5) of the Planning Act, must determine if the requested variances are consistent with the Provincial Policy Statement 2020 ("PPS 2020").

Is General Intent and Purpose of Official Plan Maintained?

18Mr. Chown explained that the City’s Official Plan ("OP") was adopted by Council in November 2021 and came into force following ministerial approval on November 4, 2022. Under that new OP, the City allocated household growth targets of 93% within the urban area, where 47% is within the urban area that was built up or developed as of July 1, 2018. Intensification is directed to 15-minute neighbourhoods, which are comprised of Hubs and Corridors, where most services and amenities are located, as well as the portions of neighbourhoods within a short walk to those Hubs and Corridors. The Subject Property is in proximity to transit Hubs. Scott Street to the north of the Subject Property is designated as a "corridor mainstreet". In Mr. Chown’s opinion, the City’s OP clearly encourages intensification, through well planned transformation. Moreover, in areas subject to the so-called Evolving Overlay, such as the area where the Subject Property is located, the OP states that the City will be supportive of applications for low-rise intensifications that seek to move beyond the development standards of the underlying zone. Considering this, Mr. Chown’s professional opinion was that the proposed variances maintained the general purpose and intent of the City’s OP, including the Scott Street Secondary Plan.

19Mr. Chown added that the previous 2003 OP was similar to the City’s new OP and that, in his view, the Application would also have met the general purpose and intent of that previous OP as well. On this point, Ms. Linker was of the view that the Tribunal should not have regard to the 2003 OP as it had been repealed by the time the Application was circulated to the Committee of Adjustment. As nothing turns on this in this instance, the Tribunal need not make a finding on this point based on the facts of this case.

Is the General Intent and Purpose of Zoning By-law Maintained?

20Mr. Chown explained that the Subject Property is zoned Residential Fourth Density (R4UB) under the ZBL, which authorizes several permitted uses including low-rise apartments subject to certain performance standards.

21With respect to the variance noted at paragraph 2(a) above, the ZBL requires a minimum rear yard setback of 30% of the lot depth (9.1m). The Applicant/Appellant is seeking a variance down to 24% of the lot depth (7.25m). With respect to the variance noted at paragraph 2(b) above, the ZBL requires a rear yard area that comprises a minimum of 25% of the lot area (75.7m²). The Applicant/Appellant is seeking a variance down to 22.6% of the lot area (68.4m²). Mr. Chown testified that the purpose of these two standards is to ensure a reasonable rear yard space for amenities and soft landscaping. He noted relief from this standard had already been obtained through the 2019 Decision. In his opinion, these two proposed variances would still result in reasonable rear yard space for amenities and landscaping.

22With respect to the variance noted at paragraph 2(c) above, the ZBL requires a minimum interior side yard setback of 1.5m. The Applicant/Appellant seeks to reduce interior side yard setbacks to 1.2m. Mr. Chown testified that the purpose of this standard is to ensure a reasonable access to the rear and side yards to maintain the building. He noted that the request setbacks reflect the existing conditions of the building. In his opinion, this proposed variance would still ensure reasonable access to the rear and side yards of the building.

23With respect to the variance noted at paragraph 2(d) above, the ZBL requires at least 20% of the area of the front façade to be recessed an additional 0.6m from the front setback line. The Applicant/Appellant seeks to reduce this to 14.5%. Mr. Chown testified that the purpose of this standard was to avoid construction of rectangular boxes, thus providing a more visual interest on the streetscape. In his opinion, giving the requested variance reflects the built form since the 2019 Decision, the underlying purpose of this standard would continue to reflect the intent and purpose of the ZBL.

24Finally, with respect to the variance noted at paragraph 2(e) above, the ZBL requires a path for the movement of garbage containers that is interrupted by any window well, depression or grade change that would impede the movement of a wheeled garbage container. The Applicant/Appellant wishes to use a direct path, to the north of the building, for movement of garbage containers that is interrupted. Mr. Chown explained that the path would include window wells which are covered by steel grates, as well as two or three steps (yet to be built). In his view, while these features make the proposed path bumpy, they did not preclude the movement of wheeled garbage containers. He noted that tenants have been using this path since they have moved into the building. In his opinion, the proposed variance would still meet the underlying purpose of the ZBL.

25Overall, Mr. Chown testified that, in his professional opinion, the five requested variances would maintain the general purpose and intent of the ZBL.

Are Variances Desirable for the Appropriate Development or Use?

26With respect to this test, Mr. Chown reiterated that the requested variances reflect the existing conditions of the building. The amended Application merely recognizes existing design and function. He explained that the building is well designed and currently functions well. As a result, he was of the professional opinion that the variances are desirable for the appropriate development and use of the building.

Are Variances Minor?

27Mr. Chown testified that because the variances being sought reflect the existing conditions of the building, the approval of the Application would not result in an undue adverse impact. The only changes would be internal to the building by converting one four-bedroom unit to two two-bedroom units. Once the redesign is completed, neighbours would be unlikely to perceive any change. He also underscored that as a result of the redevelopment, the building would include the same number of bedrooms. Based on the above, Mr. Chown’s professional opinion was that the variances are minor.

28Consistent with Mr. Chown’s opinion, Ms. Linker reiterated her position before the Committee of Adjustment, and testified that in her professional opinion the amended Application meets the four tests set out in s. 45(1) of the Planning Act.

Relevant Planning Policy

29The variances requested are very local in nature. Nevertheless, in their oral evidence, Mr. Chown and Ms. Linker did refer to s. 2 of the Act and to the PPS 2020. In their opinion, the proposed minor variances had regard to matters of provincial interest. Mr. Chown testified, and Ms. Linker agreed with his evidence, that the Application had regard, in particular, to the orderly development of safe and healthy communities, the adequate provision of a full range of housing, including affordable housing, the appropriate location of growth and development, and the promotion of development that is designed to be sustainable and to support public transit.

30With respect to the PPS, Mr. Chown testified, and Ms. Linker agreed with his evidence, that the Application is consistent with the PPS 2020. He noted that the proposal is a cost-effective and a transit supportive intensification, marked by an appropriate and efficient land use pattern based on density, within an existing settlement area. He underscored that the Subject Property has excellent access to Ottawa’s LRT, is supportive of active transport and minimizes motor vehicle trips. He opined that a four-unit redevelopment would contribute to the market-based supply of a range of housing options to meet current and future needs. He underscored that the PPS 2020 envisages that growth should first be by intensification and redevelopment, and added that "in Ottawa, that happens one unit at a time."

Participant

31Ms. Parrott objected to the Application because she was of the view that the rear yard setback is no longer sufficient for a triplex and that adding a fourth unit could put stress on this undersized lot. She also argued that the proposed garbage route was dysfunctional and created safety concerns due to the presence of electrical conduit.

32With respect to her first point, the Tribunal accepts the professional evidence of Mr. Chown that the proposed variances will still allow reasonable use of the rear yard for amenities and soft landscaping. Moreover, although the building will have an additional unit, the building will maintain the same number of bedrooms. On the second point, Mr. Chown testified, and the Tribunal agrees, that Ms. Parrott was referring to the circuitous garbage route to the south of the building, which is no longer part of the amended Application before the Tribunal.

Conclusion

33The Tribunal accepts the uncontested evidence of Mr. Chow and Ms. Linker and finds that the four tests at s. 45(1) of the Planning Act have been met. Moreover, the Tribunal finds that the amended Application meets all the relevant legislative tests, including those of sections 2, 2.1 and 3 of the Act.

ORDER

34THE TRIBUNAL ORDERS that the appeal is allowed and the variances, listed at Paragraph 2 of this Decision, to the City of Ottawa By-law No. 2008-250 are authorized.

"Jean-Pierre Blais"

JEAN-PIERRE BLAIS 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.