Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 12, 2023
CASE NO(S).: OLT-22-003615
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Ashcroft Homes
Subject: Minor Variance
Description: Request for relief from the Zoning By-law to permit a reduced total amenity area
Reference Number: D08-02-22/A-00033
Property Address: 256 Rideau Street
Municipality/UT: Ottawa
OLT Case No.: OLT-22-003615
OLT Lead Case No.: OLT-22-003615
OLT Case Name: Ashcroft Homes v Ottawa (City)
Heard: October 18, 2022 by Video Hearing (“VH”)
APPEARANCES:
Parties
Counsel
Ashcroft Homes
Krista Libman Ursula Melinz
City of Ottawa
Timothy Marc
MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN AND ORDER OF THE TRIBUNAL
Link to Order
BACKGROUND
1Ashcroft Homes (“Applicant” / “Appellant”) applied to the City of Ottawa (“City”) Committee of Adjustment (“CoA”) for a minor variance from Zoning By-law No 2008-250 (“ZBL”) to permit the construction of two 29-storey high-rise apartments connected by an eight-storey podium, including ground floor commercial space and an underground parking garage, at 256 Rideau Street and 211 Besserer Street (“subject property”). The total number of units proposed is 566.
2The minor variance requested is as follows:
- Permit a total amenity area of 2,277.6 square metres (“m2”); whereas the ZBL requires an amenity area of 3,396 m2, calculated as 6 m2 per dwelling unit.
3The proposed development is currently under construction. The relief sought has become a requirement as a result of the Applicant’s change in use of the subject property from rooming units to dwelling units. Dwelling units require amenity space of 6 m2 per dwelling unit, while rooming units had only required 3 m2 per unit.
4City staff prepared a planning report, raising no concerns with the application; however, on March 26, 2022, the application was denied by the CoA on the grounds of the CoA not being satisfied that the requested variance met all four requirements under subsection 45(1) of the Planning Act (“Act”), having stated that the requested variance was not desirable for the appropriate development or use of the land.
5On April 13, 2022, the Appellant appealed the decision of the CoA on the grounds that all four requirements of s. 45(1) of the Act were met.
PROPERTY OVERVIEW
6The subject property is a through lot extending from Rideau Street on the north end, to Besserer Street on the south end. The subject property is rectangular in shape with an area of approximately 1,250 m2, a lot width of 20.5 metres (“m”) along both Rideau Street and Besserer with a lot depth of 61 m.
7To the north is a 26-storey condominium building under construction across Rideau Street. Directly abutting to the east is a surface parking lot with multiple high-rise buildings being adjacent to the parking lot, containing both residential and commercial uses, as well as the Ottawa Little Theatre, Park Safe facility and the Church of the Messiah. South of the subject property, across Besserer Street, are high-rise apartment buildings. Moving further south are low-rise residential use buildings, as well as multiple small-scale hotels. To the west is a two-tower and shared podium high-rise complex, which directly abuts the subject property with another multi-tower and shared podium building across Cumberland Street. An aerial photo of the subject property is provided below for further context:
8The subject property is designated Central Area on Schedule B of the City of Ottawa Official Plan (“OP”) and zoned Mixed-Use Downtown Zone.
APPLICATION HISTORY
9The Applicant had previously sought a minor variance in connection with the subject property in relation to parking requirements. The purpose of the requested variance was to eliminate the need for parking for residents and require only 14 visitor parking spaces. Further, the Applicant sought to reduce parking performance standards in relation to width and drive aisle. The City provided direction that parking was not necessary as the proposed development was originally designed for student housing and transit was well situated. On May 11, 2016, the CoA approved the requested variance.
10In November of 2015, the Applicant had submitted its Site Plan Application (“SPA”) in relation to the proposed development. The SPA included an amenity space of 1,665 m2. The SPA was approved in November of 2017. Following the approval, the Applicant revised its SPA once again, which included the addition of a cafeteria as the rooming units could not contain kitchen facilities.
11The Applicant changed its plans for development during construction to convert the rooming units to dwelling units. The Applicant added a number of work orders in order to add both bathrooms and kitchen facilities to the units. As the definition of the unit type was modified, the requirements for development had changed as well, now requiring 6 m2 of amenity space per unit instead of 3 m2. The Applicant revised its plans to increase the amenity space from 1,665 m2 to 2,277.6 m2, still under the ZBL requirement of 3,396 m2.
HEARING
12The Applicant attended the Hearing together with their Counsel, Krista Libman and Ursula Melinz. Timothy Marc appeared on behalf of the City.
13The Applicant brought forward two witnesses. John Smit, a planner retained by the Applicant to provide expert opinion evidence in the area of land use planning, was qualified by the Tribunal. The Applicant’s second witness was Masha Wakula, an urban planner for the City of Ottawa. Ms. Wakula appeared before the Tribunal under the Summons of the Applicant and was qualified to provide expert opinion evidence in the area of land use planning.
14Mr. Marc, on behalf of the City, notified the Tribunal that the City would not be participating in the Hearing as they had no concerns with the application and were content with the result the Applicant had sought at the CoA.
15The Applicant submitted the following as exhibits for this matter:
Exhibit 1 – Affidavit of Service for Summons for Masha Wakula;
Exhibit 2 – Appellant Document Book (Volumes 1-3); and,
Exhibit 3 – Appellant Zoning By-Law Definitions.
16There were no additional Party or Participant status requests.
Appellant’s position and Section 45(1) of the Planning Act
17When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Act, to determine if the requested variance:
Maintains the general intent and purpose of the Official Plan;
Maintains the general intent and purpose of the Zoning By-law;
Is desirable for the appropriate development or use of the land; and,
Is minor in nature.
All four elements must be satisfied.
18Mr. Smit, on behalf of the Appellant, presented opinion evidence in the area of land use planning. The witness, who was retained in May of 2022, reviewed the Appellant’s application, appeal and the decision of the CoA. Mr. Smit expressed the opinion that the requested variance satisfied the four tests of s. 45(1) of the Act at the outset of his testimony.
19Ms. Wakula, testifying under summons by the Appellant, presented evidence, relying on the City staff report she had originally prepared in regard to the application. In her testimony while reviewing the staff report prepared, Ms. Wakula demonstrated the City staff’s opinion that the requested variance meets the four tests for minor variance.
20The Tribunal adopts the uncontested evidence of both Mr. Smit and Ms. Wakula and finds that the requested variance meets the necessary tests for minor variance under s. 45(1) of the Act. The following is an analysis of the evidence presented.
ANALYSIS
21Mr. Smit provided comments on the application and its consideration of matters of provincial interest at outlined in s. 2 of the Act. The proposed development provides for a full range of housing through the provision of student housing in an area that efficiently uses infrastructure resources.
22The Provincial Policy Statement 2020 (“PPS”) provides broad based guidance and direction for all land use within the Province. Mr. Smit was of the opinion that both the OP and the previous 2003 Official Plan for the City are consistent with the direction of the PPS. The proposed development appears in line with the PPS as it directs the minimization of land consumption for development and the location of the subject property in the City downtown allows for the maximization of existing infrastructure and transit.
Maintains the general intent and purpose of the Official Plan
23The OP designates the subject property Central Area located within an urban area. The OP provides support for intensification in urban areas, specifically noting Central Areas as a target for increased density. The OP provides density targets based on number of people and jobs per gross hectare. The range provided varies from 80 to 500, with the Central Area being the target for the highest target of 500.
24The OP also places an emphasis on the adequate provision of green space with compact built space. Direction in the OP regarding building liveable communities places importance on development near green spaces and places to shop, socialize and play nearby. This direction also highlights a need for a diversity of housing, including student housing, such as the proposed development. The subject property is located in proximity to the University of Ottawa, making it a suitable location for such development. Mr. Smit highlighted the fact that there currently exists a number of student housing buildings in the area, demonstrating that the location is suitable for such use.
25The OP promotes the Central Area to be an active place with day and night activity year round, including support for tourism. In connection with this goal, the OP acknowledges the importance of resident population and the increase of such population in order to ensure there is community to support amenities of the Central Area, including transit modes such as cycling and public transit. Mr. Smit was of the opinion that the proposed development would aid the City in achieving the goals outlined in the OP.
26The subject property is located within two secondary plans. Under the former 2003 Official Plan, the area was designated Sandy Hill West and supported all types of residential uses, with some limited commercial, as well as medium to high-density development. Under the OP, the subject property is within the downtown core plan. New direction in the OP allows for consideration of the historical growth of an area. The City has expressed a desire to focus its growth near sustainable transportation, in areas including the downtown core. The City, through the OP, have provided direction to prioritize development in the downtown, even recommending mixed-used development to further the active lifestyle planned for the area.
27Ms. Wakula’s testimony further supported this position stating that the OP supports mix and growth of range of uses within the Central Area, noting the policy’s desire to increase residential use in the area. The proposed development supports the goal of the OP to direct development of the tallest and greatest density into hubs, specifically in the downtown core.
28Based on the uncontested evidence of both witnesses, the Tribunal finds that the proposed minor variance maintains the general intent and purpose of the OP. The provision of student housing at the location of the subject property is desirable based on the guidance of the OP, as it provides housing two blocks away from the University of Ottawa. The proposed development is also located in close proximity to transit as a light rail transit station is located nearby. The development will also aid the OP’s goals in regard to the growth of the downtown core as the increase in population will aid in supporting commercial uses in the area.
Maintains the general intent and purpose of the Zoning By-Law
29The subject property is zoned MD[2345] S61, Mixed-Use Downtown. Urban Exception 2345, on the zoning of the property, related to the previously approved minor variance from 2016, changing parking requirements and reducing standards in driveway width and laneway size. Schedule 61, connected to the zoning, relates to the maximum height permitted above sea level, unrelated to the proposed variance.
30Section 137 of the ZBL includes regulations for amenity space of residential development. As previously mentioned, as a result of the redefining of the units within the proposed development as dwellings units due to the addition of kitchens and bathrooms, the requirement for amenity space is 6 m2 per unit. Had it not been for the change in unit definition, the application would have exceeded its amenity space requirement. The amenity space previously intended for cafeteria and common eating areas has been converted to other uses desirable for students, including study space. Ms. Wakula opined that the amenity area provided was sufficient as it was in the previous iteration of the application.
31The Tribunal finds that the proposed minor variance maintains the general intent and purpose of the ZBL, adopting the opinion of both planning witnesses that the proposed amenity area, being the only non-conforming aspect of the application, is sufficient amenity space.
Desirable for the appropriate development or use of the land
32The proposed development was originally designed as a mixed-use and met all applicable policy requirements for the provision of 566 units for accommodation of students. The only change and issue at this time relates to a lack of amenity space.
33Mr. Smit provided justification for the allowance of reduction of amenity space. The location of the subject property within the downtown core provides for a variety of nearby amenity spaces, and as discussed, the OP desires an increase in population growth for the downtown core area in order to maximize use of the amenity space. In addition, the proximity to the University of Ottawa provides further amenity space for the intended residents of the proposed development.
34Further, Mr. Smith opined that the changes proposed requiring the requested minor variance are desirable as the inclusion of kitchen facilities within the units themselves makes them more sustainable. As a result, student residents will not have to rely on a cafeteria and it provides students with the option to eat in private and reduce the risk of infection.
35Based on this analysis, the Tribunal finds that the proposed development is desirable for the appropriate development of the land.
Minor in Nature
36The Tribunal finds that the proposed minor variance is minor in nature. The requested variance is consistent with the ZBL, as well as the OP. Although the amenity space is less than the ZBL requirement, the Tribunal has been presented evidence demonstrating that the amenity space is sufficient and any shortcomings are mitigated through the use of amenity space in the downtown core, as desired by the OP, as well as the availability of amenity resources at the University of Ottawa.
CONCLUSION
37The Tribunal concludes that the proposed minor variance has met the requirements for the four tests for minor variance. The OP and ZBL are maintained with the proposed high-density development and the Appellant’s proposed development is desirable for the downtown core in order to support the downtown core commercial and amenity space by increasing the population density. Further, the proposed minor variance is desirable, as well as minor in nature, as the previous version of the proposed development was approved and City staff provided commentary, stating that the reduced amenity space is minor and creation of kitchen space within the units themselves makes them more sustainable, therefore more desirable.
ORDER
38THE TRIBUNAL ORDERS that the appeal is allowed and the variance to Zoning By-law No 2008-250 of the City of Ottawa is authorized.
“S. Mann”
S. MANN 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.