Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 04, 2023
CASE NO(S).: OLT-23-000434
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: City of Ottawa
Applicant: Hierarchy Custom Homes Inc.
Subject: Consent
Description: Severance to divide the existing parcel into 7 lots that vary in size
Reference Number: D08-01-22/B-00332
Property Address: 930 Smith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-23-000434
OLT Lead Case No.: OLT-23-000434
OLT Case Name: Hierarchy Custom Homes Inc. v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Consent
Reference Number: D08-01-22/B-00333
Property Address: 918 Smith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-23-000436
OLT Lead Case No.: OLT-23-000434
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Consent
Reference Number: D08-01-22/B-00334
Property Address: 936 Smith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-23-000437
OLT Lead Case No.: OLT-23-000434
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Consent
Reference Number: D08-01-22/B-00335
Property Address: 942 Smith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-23-000438
OLT Lead Case No.: OLT-23-000434
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Consent
Reference Number: D08-01-23/B-00047
Property Address: 946 Smith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-23-000439
OLT Lead Case No.: OLT-23-000434
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Consent
Reference Number: D08-01-23/B-00048
Property Address: 950 Smith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-23-000440
OLT Lead Case No.: OLT-23-000434
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Consent
Reference Number: D08-01-23/B-00049
Property Address: 956 Smith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-23-000441
OLT Lead Case No.: OLT-23-000434
Heard: September 28, 2023 in writing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| City of Ottawa | Garett Schromm |
| Hierarchy Custom Homes Inc. | John Paul Boisvert* |
DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL
Link to Order
1This Decision and Order arises from appeals filed by the City of Ottawa (“City”) pursuant to s. 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning Consent Applications (“Applications”) filed by Hierarchy Custom Homes Inc. (“Applicant”) for lands known municipally as 930 Smith Road (“Subject Lands”).
2The Applicant applied to create seven new residential lots on the Subject Lands by way of consents. At the Committee of Adjustment (“COA”) meeting, City staff did not object to the Applications but did raise a number of concerns, noting that the concerns could be addressed through the conditions specified in their staff report.
3Staff’s concerns included the location of a nearby rail corridor, which they proposed to address by way of a condition requiring the Applicant to prepare a Noise and Vibration Attenuation Study (“NV Study”).
4The COA granted the provisional consents subject to the conditions recommended by staff, save and except for the condition requiring the NV Study. The COA’s decision was subsequently appealed by the City on the basis that the NV Study is required by the City’s Official Plan.
5Accordingly, the City is requesting that the Tribunal add a single new condition to the conditions imposed by the COA for the purposes of requiring an NV Study as part of the provisional consents.
6Following the Appeal, the Parties reached a resolution whereby the Applicant agreed to the addition of the NV Study condition. A Motion Record to that effect was filed with the Tribunal and is hereby marked as Exhibit 1.
7In support of the resolution, Exhibit 1 contains the sworn Affidavit of John Finlay Graham. Mr. Graham has been a planner with the City since 2021. He is hereby qualified by the Tribunal to provide expert opinion evidence on matters pertaining to land use planning.
8In Mr. Graham’s opinion, with the addition of the condition requiring the NV Study to the other conditions imposed by the COA, the Applications have appropriate regard for matters of provincial interest as set out in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020, conform to the City’s Official Plan, and represent good planning.
FINDINGS
9Based on the uncontroverted Affidavit evidence of Mr. Graham, the Tribunal finds that the Applications, subject to the conditions imposed by the COA and the additional NV Study condition, satisfy all required statutory tests, represent good planning, and are in the public interest. The Tribunal has had regard to the decisions of the City related to this planning matter, including the City’s endorsement of the Applications and related conditions.
ORDER
10THE TRIBUNAL ORDERS that the appeals are allowed in part and the provisional consents set out in Schedule 1 to this Order are to be given, subject to the conditions set out in Schedule 2 to this Order including condition 11 with respect to the Noise and Vibration Attenuation Study.
“S. Dixon”
s. dixon
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.
Schedule 1
Description of Severances
| File No. | Frontage | Depth | Area | Lot No.* | Municipal Address |
|---|---|---|---|---|---|
| 22/B-00332 | 61.5 m | 120 m (irregular) | 2.02 ha | 1 | 930 Smith Road |
| 22/B-00333 | 139.8 m | 46 m | 0.46 ha | 2 | 918 Smith Road |
| 22/B-00334 | 76.8 m | 141 m (irregular) | 0.47 ha | 3 | 936 Smith Road |
| 22/B-00335 | 31.9 m | 203.5 m (irregular) | 0.47 ha | 4 | 942 Smith Road |
| 23/B-00047 (new) | 30.5 m | 203.5 m (irregular) | 0.65 ha | 5 | 946 Smith Road |
| 23/B-00048 (new) | 30.5 m | 216.8 m (irregular) | 0.66 ha | 6 | 950 Smith Road |
| 23/B-00049 (new) | 30.5 m | 216 m (irregular) | 0.66 ha | 7 | 956 Smith Road |
*Lot numbers reference draft sketch as filed with Committee of Adjustment
Schedule 2
Approved Conditions
- That the Owner enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the Relevant Branch within Planning, Real Estate and Economic Development Department, or their designate, which provides the following covenant/notice that runs with the land and binds future Owner(s) on subsequent transfers:
“The City of Ottawa does not guarantee the quality or quantity of the groundwater. If, at some future date, the quality or the quantity of the groundwater becomes deficient, the City of Ottawa bears no responsibility, financial or otherwise, to provide solutions to the deficiency, such solutions being the sole responsibility of the homeowner.”
The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.
- That the Owner enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the Relevant Branch within Planning, Real Estate and Economic Development Department, or their designate, which provides the following covenant/notice that runs with the land and binds future Owner(s) on subsequent transfers:
“The City of Ottawa has identified that there is potential sensitive marine clays within the area that may require site specific detailed geotechnical engineering solutions to allow for development, the City of Ottawa bears no responsibility, financial or otherwise, to provide solutions to the deficiency, such solutions being the sole responsibility of the home owner.”
The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.
That the Owner acknowledges and agrees to convey to the City, at no cost to the City, an unencumbered road widening across the complete 400.43 metre frontage of the lands, measuring 13 meters from the existing centerline of pavement/the abutting right-of-way, pursuant to Section 50.1(25)(c) of the Planning Act and Schedule C16 of the City’s new Official Plan. The exact widening must be determined by legal survey. The Owner shall provide a reference plan for registration, indicating the widening, to the City Surveyor for review and approval prior to its deposit in the Land Registry Office. Such reference plan must be tied to the Horizontal Control Network in accordance with the municipal requirements and guidelines for referencing legal surveys. The Owner(s) must provide to the City Surveyor a copy of the Committee of Adjustment Decision and a draft Reference Plan that sets out the required widening. The Committee requires written confirmation from City Legal Services that the transfer of the widening to the City has been registered. All costs shall be borne by the Owner.
That the Owners provide a report, to the satisfaction of the City of Ottawa, demonstrating the adequacy of the aquifer with respect to quality and quantity to support the proposed development, failing which the Owners construct a new well on the severed lot and provide a report, to the satisfaction of the City of Ottawa, to demonstrate the adequacy of the aquifer with respect to quality and quantity to support the proposed development. The report must include a septic impact assessment to evaluate the water quality impact of the on-site septic system on the receiving aquifer.
The Owners’ report must demonstrate the following to the City of Ottawa:
a) That the construction of any new well on the severed parcel is in accordance with the Ministry of the Environment, Conservation and Parks
b) That the quality of the water meets the Ministry of the Environment, Conservation and Parks Regulations, Standards, Guidelines and Objectives;
c) That the quantity of water meets all the Ministry of the Environment, Conservation and Parks requirements.
d) That the septic impact assessment meets the Ministry of the Environment, Conservation and Parks requirements.
A qualified Professional Engineer or Professional Geoscientist must prepare the report. It is the Owner’s responsibility to coordinate the person drilling a new well, if required, and the professional noted herein in order to properly satisfy this condition.
If the accepted report recommends specific mitigation measures or design requirements, the Owners shall enter into a Development Agreement with the City, at the expense of the Owners, which is to be registered on the title of the property, which includes those recommendations. In instances where the subject site has hydrogeologically sensitive soils, the drilling of a well or the conveyance of a 30-centimetre reserve may be required. Both the report and any required Development Agreement shall be prepared to the satisfaction of Development Review Manager of the Relevant Branch within Planning, Real Estate and Economic Development Department, or their designate.
The Report shall be prepared as per Procedure D-5-4 “Technical Guideline for Individual On-Site Sewage Systems: Water Quality Impact Risk Assessment” and Procedure D-5-5 “Technical Guideline for Private Wells: Water Supply Assessment”.
That the Owner(s) provide evidence (payment receipt) to the Committee that payment has been made to the City of Ottawa of Cash-in-lieu of the conveyance of land for park or other public recreational purposes, plus applicable appraisal costs. The value of the land otherwise required to be conveyed shall be determined by the City of Ottawa in accordance with the provisions of By-law No. 2022-280, as amended. Information regarding the appraisal process can be obtained by contacting the Planner.
That the Owner(s) obtain a Zoning By-law Amendment, satisfactory to the Development Review Manager of the Relevant Branch within Planning, Real Estate and Economic Development Department, or their designate, to be confirmed in writing from the Department to the Committee, that accomplishes the following with all levels of appeal exhausted:
a) The lands are rezoned from DR3 – Development Reserve Zone, Subzone 3 to an appropriate residential zone.
That the Owner enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of Development Review Manager of the Relevant Branch within Planning, Real Estate and Economic Development Department, or their designate to design and construct at the Owner’s expense, a pedestrian connection along the entire frontage of this property’s frontage of Smith Road.
That the Owner provide a Geotechnical Report prepared by a Professional Civil Engineer licensed in the Province of Ontario, that is satisfactory to both Development Review Manager of the Rural Branch within Planning, Real Estate and Economic Development Department, or their designate and to the South Nation Conservation Authority to be confirmed in writing from the PREDD and the Authority to the Committee, demonstrating the following:
a) That all parcels to be created by this application are or can be made suitable for residential purposes (slope stability in the most critical slope areas, erosion protection, and building limits or setbacks adjacent to slopes);
b) That there are no adverse environmental impacts. The Geotechnical Report shall, as a minimum, determine the limit of sensitive marine clays present on the severed parcel and provide recommendations for construction methods based on the soil types encountered.
The applicant submits a site plan completed by an engineer showing the location of all wells, including proposed and existing wells, on and adjacent to the properties, to the satisfaction of the OSSO.
That the Owner(s) file with the Committee a copy of the registered Reference Plan prepared by an Ontario Land Surveyor registered in the Province of Ontario, and signed by the Registrar, confirming the frontage and area of the severed land. If the Registered Plan does not indicate the lot area, a letter from the Surveyor confirming the area is required. The Registered Reference Plan must conform substantially to the Draft Reference Plan filed with the Application for Consent.
That the Owner(s) shall prepare a Noise and Vibration Attenuation Study in compliance with the City of Ottawa Environmental Noise Control Guidelines to the satisfaction of Development Review Manager of the Rural Branch within Planning, Real Estate and Economic Development Department, or their designate. The Owner(s) shall enter into an agreement with the City that requires the Owner to implement any noise control and vibration attenuation measures recommended in the approved study. The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.
That upon completion of the above conditions, and within the two-year period outlined above, the Owner(s) file with the Committee, the “electronic registration preparation documents” for a Conveyance for which the Consent is required.