Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 31, 2023

CASE NO(S).: OLT-23-000358

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

Applicant and Appellant: Sandra Didiomete, Franca Didiomete, and Mark Holmes

Subject: Minor Variance

Description: To permit reduced parking spaces

Reference Number: D08-02-22/A-00207

Property Address: 19A and 19B Garland Street

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-000358

OLT Lead Case No.: OLT-23-000358

OLT Case Name: Didiomete v. The City of Ottawa (City)

Heard: August 18, 2023 by Video Hearing

APPEARANCES:

Parties

Sandra Didiomete, Franca Didiomete and Mark Holmes

Counsel

M. Cicchino, A. Kallio (Student-at-law)

MEMORANDUM OF ORAL DECISION DELIVERED ON AUGUST 18, 2023 BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter is before the Tribunal as an Appeal pursuant to s. 45(12) of the Planning Act (“Act”) by Sandra Didiomete, Franca Didiomete and Mark Holmes (the “Applicants”) resulting from a decision of the City of Ottawa Committee of Adjustment (“COA”) denying minor variance requests for properties at 19A and 19B Garland Street (“Subject Properties”).

2The Notice of Hearing was properly circulated on May 30, 2023, by the Tribunal. The Tribunal notes that the City of Ottawa advised it would not be attending the Hearing on May 17, 2023.

3A Book of Documents was filed by the Applicants with the Tribunal on August 4, 2023, and is marked as Exhibit 1.

BACKGROUND

4The Applicants filed a consent to sever (“Consent”) application with the COA to subdivide 19 Garland Street into two separate parcels of land to create separate ownership for each half of an existing long semi-detached dwelling. The Consent application was originally filed on July 8, 2022, subsequently adjourned at the COA on September 7, 2022, and finally received conditional approval on February 24, 2023.

5The Applicants also filed for a minor variance application seeking relief on lot width for a “flag lot” slender strip of land, that acts as a driveway or access path and connects to a slightly larger, more isolated lot in the rear of the Subject Properties, and for two (2) parking variances. The Tribunal must make a decision on the Appeal of the decision denying the parking variances, as well as the “flag lot” width matter which was approved by the COA.

6It is important to note that a previous COA decision approved the proposed building in October 2019, by allowing seven (7) variances, resulting in the issuance of building permits in 2020 for the Subject Properties, which currently consists of a completed built form.

7More precisely, this Appeal is seeking approval for the following minor variances:

19A Garland Street, Parts 2, and 3, front unit of the existing long semi-detached dwelling

a) To permit a reduced parking space of 4.6 metres (“m”), whereas the By-law requires a minimum parking space length of 5.2 m; and

19B Garland Street, Parts 1, 4 and 5, rear unit of the existing long semi-detached dwelling

b) To permit a reduced parking space of 4.6 m, whereas the By-law requires a minimum parking space length of 5.2 m; and

c) To permit a reduced pole width of 1.65m, whereas the By-law requires a minimum pole width of 2.2 m.

8The City’s Planning, Infrastructure and Economic Development Department informed the COA in its Planning Staff Report, (“PSR”) that it had no concerns with the minor variance applications at the time of the decision. In the PSR (Exhibit 1, p.98), staff state the following:

• staff note that a correction was made to variance (c) to vary the minimum pole width of 2.2 m. The applicant correctly indicated in the application form that a variance from s. 145(4) would be required as the proposed development is comprised of one flag lot.
• With regards to the variance to permit a reduced minimum parking space size within the interior-facing garages within the constructed building, staff recognize that these parking spaces are an existing condition having legal non-complying rights and believe that these variances were applied for in an abundance of caution. As such, staff are of the opinion that the severance is appropriate, and the minor variances meet the four ‘tests’ as provided for under the Planning Act.

9In its decision, the COA authorized minor variance (c) but denied minor variances (a) and (b).

LEGISLATIVE FRAMEWORK

10An Appeal pursuant to s. 45(1) of the Planning Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in s.45(1) have been met, namely that the requested variances:

a) Maintain the general intent and purpose of the OP;

b) Maintain the general intent and purpose of the Zoning By-law (“ZBL");

c) Are minor in nature; and

d) Are desirable for the appropriate development or use of the land, building or structure.

11In addition, s. 3(5) of the Act requires the Tribunal's decision to be consistent with the Provincial Policy Statement 2020 (“PPS”). The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as for the decision of the Committee and the information considered while making its decision, as set out in s. 2.1(1) of the Act.

12The Hearing proceeded as an uncontested matter in the absence of any representation by the City.

EVIDENCE

13The Applicant’s witness, Mr. Murray Chown, a Professional Planner with over 30 years of experience, extensively in the Ottawa region, and who has consistently appeared before the Tribunal, was qualified as an Expert Planning witness at the Hearing.

14Mr. Chown commenced his testimony and offered his opinion that the Appeal is consistent with the PPS, within the settlement area, and that even the one additional residential unit is relevant in the analysis of this consistency with the PPS.

15Mr. Chown testified that the original variances in 2019, led to the Consent application, which also “triggered” the minor variance applications at the same COA meeting on February 1, 2023. The decision regarding the minor variances was adjourned until February 15, 2023, allowing some time for the Applicants to provide further justification regarding turning movements in the driveway, and any additional rationale for the parking space minor variances within the adjacent garages for both units.

16Mr. Chown further opined that he concurred with the COA’s decision regarding variance (c) and encouraged the Tribunal to also support the COA’s decision regarding this variance request, which reflects that the four tests pursuant to s.45(1) of the Act have been met, among other requirements of the Act, as referenced (Exhibit 1, Tab 23).

17Mr. Chown also stated that with his extensive experience in Ottawa, the City’s conclusion that there were “no concerns” with applications, implies a broad interpretation that includes that the four tests have been met, which also applies to all of the minor variance requests including (a) and (b), as well as (c) respectively.

18Mr. Chown focused a good portion of his testimony on variances (a) and (b). He opined that after careful study and analysis, he did not agree with the COA’s decision which states the following:

• Specifically, the Committee finds insufficient turning radius evidence was presented that these variances are, from a planning and public interest point of view, desirable for the appropriate development or use of the land, building or structure on the property, and relative to the neighbouring lands. Failing one of the four statutory requirements, the Committee is unable to authorize the reduced parking space length.

19Mr. Chown opined that all three (3) variances were essential in order to meet the conditions associated with the approved Consent application and testified the evidence (Exhibit 1, p. 72) effectively demonstrated that the COA was incorrect about the functionality of the turning radius. He also asserted that the design was appropriate, having recently observed the functionality of access to both parking spaces himself, while on site at the Subject Properties.

Variances maintain the general intent and purpose of the Official Plan ("OP");

20Mr. Chown opined that the minor variances conformed to the most recent OP-2022, as recently approved (Exhibit 1, Tab 31 and 32) and outlined the relevant elements associated with the Appeal beginning with the close proximity of the Subject Properties to major transit hubs, including the Bayview and Tunney’s Pasture LRT Stations, and close proximity to Scott Street, a busy arterial road.

21Mr. Chown opined that intensification and the creation of new homes that fit well into established neighbourhoods, through their massing, setbacks, and use of materials are conditions that are strongly advocated by the OP. The result is an enhanced streetscape along Garland Street and the neighbourhood. There are no alterations to the existing curb or driveway, and the minimum parking space size does not have an adverse impact upon this. Therefore, he concludes that the minor variances maintain the general intent and purpose of the OP.

Variances maintain the general intent and purpose of the Zoning By-law

22Mr. Chown testified that the ZBL states that there are no parking requirements, which was the reason the building permit was issued in the first instance in 2020. He asserted that minor variances (a) and (b) seek to legalize the parking spaces and were not “legal non-complying” as incorrectly noted in the PSR, and acknowledged by Planning Staff personally, during consultations he held about the matter. Mr. Chown believes the general intent and purpose is respected as the visual lot pattern of the neighbourhood is maintained, and the lot lengths also fully conform to the ZBL. He also reiterates that regarding variance (c), while 2.2 m is applicable in the ZBL, a reduced pole width variance of 1.65 m meets the test in this instance, which was evident in the COA’s decision to support variance (c).

Variances are minor in nature;

23Mr. Chown opined that all of the variances requested are minor in nature, as the overall effect of the reduced parking space sizes, and the pole width are not perceived or visible from the street and there is no adverse impact that will occur if the minor variances are granted.

Variances are desirable for the appropriate development or use of the land, building or structure;

24Mr. Chown opined that the long-semi-detached homes are a desirable addition to the neighbourhood, and that all of the requisite conditions of the Consent will be satisfied with the approval of these minor variances as a final step in the process.

25Mr. Chown makes it evident that neither unit has a garage door or sloped driveway facing the street, and that the plan works very carefully with the established landscaping of the property. Therefore, he concludes that the design and development of the new homes reflect an appropriate development or use of the Subject Properties and newly constructed building, thus meeting this fourth and final test.

ANALYSIS AND DISPOSITION

26Based on the uncontroverted evidence in the testimony of Mr. Chown, combined with the PSR submitted to the February 1, and February 15, 2023 COA meetings respectively, the Tribunal concurs with the consistent positions of the Professional Planners, both on behalf of the Applicants and as referenced in the City’s PSR.

27The Tribunal also agrees with Counsel for the Applicants that the basis for the Appeal to the minor variances asserts that the COA’s decision was vague and unsupported by evidence. Planning Staff had no objections or concerns with the application and there was no evidence presented to the COA refuting the assertion that the four tests were met pursuant to s. 45(1) of the Act.

28The existing long semi-detached dwellings align and integrate with the existing neighbourhood, and are a welcome addition to the area. The minor variances have neither an adverse physical or visual impact to the streetscape, nor the character of the neighbourhood.

29Furthermore, the minor variances to permit a reduced minimum parking space size within the interior-facing garages within the constructed building, are quite functional in their existing built form, and the Tribunal finds that the variances regarding parking have met the “four tests” pursuant to the Act.

30Therefore, for reasons referenced previously in evidence and analysis, the Tribunal finds that the requested variances are desirable, have regard for matters of Provincial interest pursuant to the Act, and are consistent with the PPS and the City’s OP. The variances also have appropriate regard for all the “four tests” pursuant to s. 45(1) of the Act. The Appeals shall be allowed in each instance, and the related variances in each of the Appeals shall also be authorized in the Order that follows.

ORDER

31THE TRIBUNAL ORDERS that the Appeal is allowed and the variances to By-law No. 2008-250, are all authorized including:

• 19A Garland Street, Parts 2, and 3, front unit of the existing long semi-detached dwelling

a) To permit a reduced parking space of 4.6 m, whereas the By-law requires a minimum parking space length of 5.2 m; and

• 19B Garland Street, Parts 1, 4 and 5, rear unit of the existing long semi-detached dwelling

b) To permit a reduced parking space of 4.6 m, whereas the By-law requires a minimum parking space length of 5.2 m; and

c) To permit a reduced pole width of 1.65m, whereas the By-law requires a minimum pole width of 2.2m

“Steven T. Mastoras”

STEVEN T. MASTORAS 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.