Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 12, 2023

CASE NO(S).: OLT-23-000310

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

Applicant/Appellant: 78 Rosemount Avenue Inc.

Subject: Minor Variance

Description: To construct a 3-storey 12-unit apartment building

Reference Number: D08-02-23/A-00039

Property Address: 78 Rosemount Avenue

Municipality: City of Ottawa

OLT Case No.: OLT-23-000310

OLT Lead Case No.: OLT-23-000310

OLT Case Name: 78 Rosemount Avenue Inc. v. Ottawa (City)

Heard: September 6, 2023 by Video Hearing

APPEARANCES:

Parties

78 Rosemount Avenue Inc.

Counsel

Crystal McConkey Ursula Melinz

MEMORANDUM OF ORAL DECISION DELIVERED BY S. L. DIONNE AND DAVID BROWN ON SEPTEMBER 6, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is an appeal filed by 78 Rosemount Avenue Inc. (the “Applicant/Appellant”) pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”), against a decision of the City of Ottawa (“City”) Committee of Adjustment (the “COA”) which denied a request for a minor variance from the required rear yard setback. The Application affects the lands municipally known as 780 Rosemount Avenue (the “Subject Property”).

2The Subject Property is located on the west side of Rosemount Avenue which runs north-south between Gladstone Avenue to the north and Highway 417 to the south, in the neighbourhood of Hintonburg-Mechanicsville. It has a lot frontage of 18.20 metres (“m”), a depth of 29.26 m and a total lot area of 535.14 square metres (“m²”). The Subject Property is currently occupied with a two-storey duplex dwelling and a single-car detached garage in the rear yard, accessed by an asphalt driveway from Rosemount Avenue.

3The Applicant/Appellant proposes to redevelop the Subject Property by constructing a three-storey, 12-unit, low-rise apartment building with its main entrance facing Rosemount Avenue, having private balconies, zero vehicle parking, 12 bicycle parking spaces, a detached enclosed garbage structure, and a landscaped amenity area in the rear yard (the “Development Proposal”). The proposed building will include one accessible one-bedroom unit with barrier free design, nine two-bedroom units, and two one-bedroom units.

4In June 2022, the Applicant/Appellant submitted a Site Plan Control Application to the City for approval of the Development Proposal (City File No. D07-12-22-0094) (“SPA”). The Site Plan Control Application is not a matter before the Tribunal.

5During the circulation of the SPA, the Applicant/Appellant was made aware of a front yard setback restriction related to the existence of an overhead primary hydro line within the Rosemount Avenue boulevard. In response, the Appellant/Applicant looked at the option of shifting the footprint of the proposed building back 1.47 m from the front property line and thus encroaching into the required rear yard setback.

6In February 2023, an Application for Minor Variance was submitted to the COA (City File No. D08-02-23/A-00039) requesting a variance from the rear yard setback provision of City Zoning By-law 2008-250, as amended (the ”ZBL”), to allow a rear yard setback of 7.3 m, whereas the ZBL requires a minimum rear yard setback equal to 30 percent of the lot depth which, in this instance, given a lot depth of 29.26 m, requires a minimum rear yard setback of 8.77 m (the “Application”).

7At its meeting on March 15, 2023, the COA had before it a City Staff Report dated March 10, 2023, (the “Staff Report”) which outlined that City Staff had no concerns with the Application. There was a written submission from one area resident in support of the Application. Additionally, there were three written submissions in opposition to the proposed variance, those being from the Hintonburg Community Association (the “HCA”) and two area residents. The COA denied the requested variance for relief of 1.47 m to the rear yard setback for reasons that included that an alternative design for the Development Proposal could be achieved that is more sensitive to the neighbouring lands.

8There were two requests for Participant Status filed with the Tribunal in advance of the Hearing. Counsel for the Applicant/Appellant advised they had no objection to the requests.

9Cheryl Parrot was in attendance as a Representative of the HCA. The Tribunal granted Participant Status to the HCA and marked the Participant Statement filed with the Tribunal as Exhibit 3.

10Additionally, the Tribunal granted Participant Status to Ben Hoskyn, Sarah Lussier, Ariane Hoskyn, Laurent Hoskyn, and Valerie Stam (“Hoskyn et al.”), the residents of 7 Beverley Avenue, Units A and B, and marked their filed Participant Statement as Exhibit 4.

11The City did not appear before the Tribunal at the Hearing.

LEGISLATIVE CONTEXT

12The Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act when making its decision. It must also have regard to the decision of the COA and the information considered by it, as required under s. 2.1(1) of the Act, though it is not bound by that decision. The proposed variances must be consistent with the Provincial Policy Statement, 2020 (“PPS”) as set out in s. 3 (5) of the Act.

13The Tribunal, when considering an Application for Minor Variance, must be satisfied that the requested variance meets the four tests as set out in s. 45(1) of the Act, namely:

1. Does the request maintain the general intent and purpose of the official plan?
2. Does the request maintain the general intent and purpose of the zoning by-law?
3. Is the request desirable for the appropriate development or use of the land, building or structure? and
4. Is the requested variance minor in nature?

SUBMISSIONS AND EVIDENCE

14The Tribunal qualified Christine McCuaig, a Registered Professional Planner, to provide expert opinion evidence in the field of Land Use Planning. She confirmed to the Tribunal that she adopts the contents of her Witness Statement as her evidence and the Tribunal marked the Witness Statement as Exhibit 2.

15Ms. McCuaig provided the Tribunal with a detailed overview of the Subject Property and the Development Proposal, in the context of the City and its’ immediate neighbourhood, as supported by the Site & Neighbourhood Context images found at Tab 5 of the Document Book (Exhibit 1).

16The Subject Property is located in the Hintonburg-Mechanicsville Neighbourhood, within a residential block characterized by a diverse mix of single-detached dwellings, semi-detached dwellings, duplex dwellings and low-rise apartment buildings. The Subject Property is less than a five-minute walk to parks and a public school and approximately a 12-minute walk to existing or planned future transit stations and other amenities servicing the community.

17The Subject Property is located within the Inner Urban Transect Policy Area and is designated Evolving Neighbourhood pursuant to the City’s Official Plan (“OP”). The Inner Urban Transect is generally planned for mid- to high-density development that is supportive of urban development forms where no on-site parking is provided and walking, cycling and transit use are prioritized. Missing middle housing is allowed and supported in this Policy Area.

18The Subject Property is zoned “R4UB” - Residential Fourth Density, Subzone UB pursuant to ZBL. Ms. McCuaig opined that the R4UB zone allows for a wide mix of residential building forms, ranging from detached dwellings to low-rise apartments. It also regulates development in a manner that is compatible with existing land use patterns, in that adding mixed building forms maintain and enhance the character of the residential area.

19In the Staff Report found at Tab 8 of Exhibit 1, City staff had “no concerns” with the proposed rear yard set back of 7.3 m when considering the site context. The Staff Report sets out that the existing surrounding uses include an auto repair shop to the north, low rise residential properties with backyards that appear to be used for both parking and amenity area to the west, and a low-rise apartment building to the south. City staff do not anticipate privacy concerns resulting from the proposed variance to the rear yard setback. It is noted that the proposed rear yard area of the Development Proposal is of sufficient size to accommodate the minimum soft landscaping requirements, waste management, and bicycle storage.

20Ms. McCuaig advised the Tribunal that she agrees with City staff’s position as set out in the Staff Report.

21Ms. McCuaig proffered that a three-storey, low-rise apartment building without vehicular parking is permitted as-of-right on the Subject Property. Except for the rear yard setback, the Development Proposal conforms with all other ZBL requirements. She submitted that the Application, if granted, will allow for the current building design and unit mix, whereas if the required rear yard setback is provided, the building would need to be reduced in size, resulting in a reduction in the number and size of proposed units, specifically fewer two-bedroom units.

22It was Ms. McCuaig’s evidence that the Development Proposal represents appropriate intensification that is a more efficient use of the Subject Property and existing infrastructure than the existing condition and it is consistent with, and supported by, Provincial Policy.

23Ms. McCuaig opined that the proposed variance satisfies the four tests for approval as set out in s. 45(1) of the Act and should be granted on the basis of her evidence as follows:

Is the request minor in nature?

24Ms. McCuaig proffered that whether a variance is minor is an assessment of the degree of impact (or cumulative impact where multiple variances are proposed) on the Subject Property and the neighbouring or near-by properties, not a review of numerical deviations from prescribed by-law provisions.

25Ms. McCuaig described the variation in existing rear yard setbacks, and the existing conditions in the rear yards, of the properties immediately adjacent to the Subject Property. The abutting property to the north, 1150 Gladstone Avenue, is an auto repair shop located 1.0 m from the shared property line, for which the proposed 7.3 m rear yard will have no impact. The abutting property to the south, 84 Rosemount Avenue, is a low-rise apartment with rear balconies and is setback 8.8 m to its rear yard and 0 m setback to the shared property line. Granting the proposed variance would result in an offset of the balconies between the two low-rise apartments and improved privacy conditions. The abutting property to the northwest, 7 Beverley Avenue, currently faces the existing single-storey garage on the Subject Property, which is to be demolished and replaced with a new single-storey structure in a comparable location to the shared lot line. The immediate context remains generally unchanged. The abutting property to the southwest, 11 Beverley Avenue, has existing trees in its rear yard and currently faces the landscaped outdoor amenity area of the Subject Property, within which an additional tree will be planted.

26Ms. McCuaig demonstrated, by way of three-dimensional model analysis, that the difference in visual impact of a three-storey, low-rise apartment between a 7.3 m and an 8.77 m rear yard setback from the abutting properties, 7 and 11 Beverley Avenue, is not significant. She opined that there is no difference in the visibility of windows and balconies and therefore any privacy impact remains unchanged. The proposed and preserved trees serve as a landscaped buffer. It is Ms. McCuaig’s opinion that no undue or adverse impact is expected to result from shifting the building footprint 1.47 m closer to the shared lot line.

Does the request meet the general intent and purpose of the Zoning By-law?

27Ms. McCuaig proffered that a low-rise apartment building of the height proposed is permitted in the R4UB zone. The intent and purpose of the rear yard setback is to ensure adequate areas of green space for landscaping, to provide separation between built forms within a block, and where applicable, to provide adequate space for other site requirements such as waste management and bicycle parking. The Development Proposal complies with the ZBL requirements for soft landscaping on the lot and in the rear yard and provides bicycle parking and a structure for waste management.

28In terms of separation between built forms, Ms. McCuaig opined that the built form separation and visual perception of separation is the intent to be met. The total separation between the 11 Beverley Avenue dwelling and the proposed low-rise apartment is 17 m, which is considered appropriate for an inner urban rear yard separation between low-rise built forms. For comparison, 20 m is a common setback between high-rise tower of ten-storeys or more. The ZBL regulates the rear yard setbacks relative to the depth of the lot, therefore, depending on the lot depth and front yard setback, the rear yard setback could be less than the proposed setback and the resultant building separation would also be less. She proffered that the visual impact of the Development Proposal is unchanged regardless of whether it is setback 8.77 m or 7.3 m to the rear lot line based on the three-dimensional model analysis.

Does the request meet the general intent and purpose of the Official Plan?

29The Tribunal was advised that the Development Proposal supports the intent and purpose of the strategic direction and policies of the OP by providing a 12-unit rental apartment building, which will include two-bedroom units, in a mixed built form Inner Urban Transect neighbourhood where transit, parks, schools, and other community amenities are very accessible.

Is the request desirable for the appropriate development or use of the land?

30Ms. McCuaig proffered that the Development Proposal supports the City’s intensification goals and contributes to sustainable transportation and the pursuit of 15-minute neighbourhoods. The Development Proposal presents an urban pattern of built form, creates critical rental housing where transit is available, and proposes a built form separation that is suitable for low-rise. Ms. McCuaig opined that the Development Proposal does not result in any undue or adverse impacts.

31Ms. McCuaig disagreed with the COA’s findings and the reasons for its Decision, as set out in section L. of her Witness Statement and as summarized below:

a) The intent and purpose of the ZBL is to ensure adequate landscaping, built form separation in accordance with the planned context, and sufficient space, if required, for waste management and bicycle storage. Landscaping requirements are exceeded, the built form separation is appropriate for the inner urban context for low-rise residential where medium to high density is supported, and where waste management and bicycle storage is easily provided without compromising the provision of landscaping.

b) As per the three-dimensional comparative analysis, viewed from the abutting rear yard, showing the building at the compliant 8.77 m setback versus the proposed 7.3 m setback, it is demonstrated that there is no appreciable difference in the overall visibility of the building and associated windows and balconies. As demonstrated, there will not be privacy impacts as a result of granting the variance nor unacceptable adverse impacts on the abutting neighbours.

c) An alternative design would mean reducing the number of units and/or changing some two-bedroom units to one-bedroom units. Acknowledging that there are no changes to privacy for the neighbouring properties, a reduction in the number of two-bedroom units provided is less supportive of the OP policies which are intended to promote larger units.

32Hoskyn et al. reside at 7 Beverley Avenue which is located immediately abutting the rear of the Subject Lands. Their Participant Statement sets out their opposition to the Development Proposal based on concerns related to loss of privacy and sunlight, noise, whether there is an adequate provision of greenspace and trees, and impact on property values. Hoskyn et al. believe there should be a requirement for additional privacy measures such as a higher privacy fence and planting of trees.

33Ms. McCuaig proffered that the Development Proposal includes the provision of privacy fencing and planting of trees in the rear yard. It also includes the replacement of the existing accessory structure with a new structure, situated in, more or less, the same location as the existing garage. The height of the building and the number and location of windows and balconies proposed all comply with the ZBL in effect.

34The HCA, as set out in their Participant Statement, does not oppose the intensification on this lot, but they oppose the failure to adhere to a recent amendment to the ZBL with respect to the rear yard setback which, in their submission, is intended to mitigate the impact on neighbouring properties of the increases in density, reduction in privacy, decrease in usable green space, and decrease in permeable surfaces.

35In response to HCA comments, Ms. McCuaig advised that the changes in the ZBL for the rear yard setbacks was to ensure higher density development could accommodate green space, waste management, bicycle storage, and rear yard vehicle parking, if and where applicable. Additionally, there is no test which requires the consideration or appropriateness of the variance to be considered based on the age of a ZBL provision.

36It was Ms. McCuaig’s opinion that the Proposed Development and the variance requested have regard for matters of provincial interest, are consistent with the PPS, have proper regard for the City’s policies, represent good land use planning, and are in the public interest.

ANALYSIS AND FINDINGS

37The Tribunal accepts the uncontroverted evidence of Ms. McCuaig in support of the Development Proposal and the requested minor variance.

38The Tribunal finds that the Development Proposal has appropriate regard for matters of provincial interest as set out in s. 2 of the Act, as it represents the efficient use of sewage and water services and waste management systems, the orderly development of safe and healthy communities, the appropriate location of growth and development, and the promotion of built form that is well-designed and encourages a sense of place.

39The Tribunal reviewed and had regard to the decision of the COA, the written submissions considered by the COA, and the Staff Report.

40The Tribunal finds that the Development Proposal is consistent with the PPS as it represents development that maximizes use of existing infrastructure, promotes efficient land use, and the provision of an appropriate range and mix of housing options.

41The Tribunal heard evidence that a three-storey, low rise apartment building is permitted as-of-right on the Subject Property, and further that in granting the requested variance, the general intent and purpose of the OP and ZBL are maintained. The Tribunal accepts this evidence and finds that the request maintains the general intent and purpose of the ZBL and the OP.

42The Tribunal, having reviewed the Development Proposal and the context of the Subject Property, is satisfied that the request is desirable for the appropriate development and use of the Subject Property. The Development Proposal will provide “missing middle housing” in a form that the OP policy framework supports, with the added benefit of providing one unit specifically designed as barrier free, for accessibility.

43In consideration of the concerns raised in the Participant Statements, the Tribunal acknowledges that the Development Proposal includes the provision of privacy fencing and planting of trees in the rear yard. Further, the Development Proposal includes the replacement of the existing accessory structure with a new structure in effectively the same location. The Tribunal was advised that the Development Proposal complies with all other provisions of the ZBL, including the height of the proposed building and the provision of soft landscaping.

44The Tribunal accepts the analysis of Ms. McCuaig when she opined that reducing the rear yard setback of the building does not lessen the impact as it has minimal visual impact and would not result in any undue adverse impacts. The Tribunal finds that the Development Proposal is in keeping with the character of the area and that the requested reduction of 1.47 m in the rear yard setback will not result in any unacceptable or adverse impact on the neighbouring lands. The Tribunal finds that the request is minor in nature.

45The Tribunal allows the Appeal and authorizes the minor variance as requested.

ORDER

46THE TRIBUNAL ORDERS that the appeal is allowed and the minor variance to permit a rear yard setback of 7.3 m for the proposed three-storey, 12-unit apartment building, whereas By-law No. 2008-250, as amended, requires a minimum rear yard setback of 8.77 m in this instance, is authorized.

“S. L. Dionne”

S. L. DIONNE

MEMBER

“David Brown”

DAVID BROWN

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.