Edward Linde v. City of Ottawa, 2023 CanLII 97678

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 20, 2023

CASE NO(S).: OLT-23-000736

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

Applicant/Appellant: Edward Linde

Subject: Minor Variance

Description: To facilitate a front yard driveway

Reference Number: D08-02-23/A-00105 & 00130

Property Address: 248-250 Bayswater Avenue

Municipality/UT: Municipality of Ottawa

OLT Case No.: OLT-23-000736

OLT Lead Case No.: OLT-23-000736

OLT Case Name: Linde v. Ottawa (Municipality)

Heard: October 6, 2023, by video hearing

APPEARANCES:

Parties	Representative*
Edward Linde	Self-represented*
City of Ottawa	Did not Appear

DECISION DELIVERED ON BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal was the appeal by Edward Linde (“Appellant”) under s. 45(12) of The Planning Act (“the Act”) due to the City of Ottawa’s (“City”) Committee of Adjustment (“COA”) decision to allow three of the four requested minor variances for the property municipally known as 248-250 Bayswater Avenue (“Subject Property”).

2The purpose of the minor variance application was to facilitate a two-storey rear addition that would serve both dwelling units. The addition would accommodate a second means of egress from the basement of each dwelling while increasing the existing ground floor kitchen spaces and second floor bathrooms for each dwelling. The proposal includes a new covered front porch serving both dwellings with increased soft landscaping at the front, side, and rear surfaces of the Subject Property.

3The project was deemed necessary by the Appellant due to the necessary upgrades that are needed to the plumbing, electrical, and HVAC systems. Some of these items had not been addressed since the original construction of the dwelling units.

4In order to complete the Appellant’s upgrades and proposed changes the following minor variances were requested by the Appellant:

248 Bayswater Avenue

To permit a reduced rear yard setback of 6.5 meters, whereas the By-law requires a minimum rear yard setback of 7.5 meters.
To permit a reduced interior side yard setback of 1 meter, whereas the By-law requires a minimum interior side yard setback of 1.2 metres.
To permit a parking space to be located in the front yard, whereas the By-law does not permit parking in a required and provided front yard.

250 Bayswater Avenue

To permit a reduced rear yard setback of 6.5 meters, whereas the By-law requires a minimum rear yard setback of 7.5 meters.

5The Subject Property is located within the Ottawa Kitchissippi Ward’s Civic Hospital neighbourhood and near the intersection of Bayswater Avenue and Beech Street. The Subject Property has a street frontage of approximately 6.69 metres for 248 Bayswater Avenue and approximately 9.46 metres for 250 Bayswater Avenue for a total frontage of approximately 16.15 metres. The lot area for 248 Bayswater Avenue is approximately 195.77 square metres and 250 Bayswater Avenue is approximately 276.93 square metres for a total combined lot area of approximately 472.7 square metres.

6The original application was deemed complete on May 31, 2023. Planning Staff reviewed the application and presented a planning report for the COA meeting that was deliberated on July 5, 2023.

7The Appellant appeared before the COA to discuss the application and the minor variances being requested. The Planning report deemed that minor variances (1), (2) and (4) as listed above met the four tests of a minor variance and should be approved by the Committee.

8Planning Staff had an issue with variance (3) as it was Planning Staff’s opinion that the variance requested did not meet the four tests, specifically the test of meeting the general intent and purpose of Zoning By-law 2008-250 (“ZBL”).

9The COA reviewed the planning report and took into account the information provided by the Appellant at the COA meeting. The COA approved variances (1), (2) and (4) as recommended by Planning Staff. The COA did not approve variance (3), which was the variance concerning a driveway. This minor variance was the variance that was not recommended by Planning Staff.

10The Appellant appealed the decision of the COA to the Ontario Land Tribunal (“OLT”) and the OLT received the appeal on July 19, 2023.

LEGISLATIVE FRAMEWORK

11An appeal pursuant to s. 45 of the Act is a hearing de novo and the Applicant 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) maintains the general intent and purpose of the Official Plan (“OP”);

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

(d) is desirable for the appropriate development or use of the land building or structure.

12In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter, in this case the application for a variance, must be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest, as well as regard for the decision of the COA and the information considered by it in the course of making that decision.

DAY OF HEARING

13The Tribunal convened a hearing on October 6, 2023, to the matter of the four minor variances appealed by the Appellant. Appearing at the hearing was the Appellant representing himself. The City did not attend the hearing.

14The Tribunal affirmed the Appellant to give oral evidence on his behalf specifically for the file that was before the Tribunal.

15The Tribunal marked the following item as an exhibit to the Hearing:

a) Exhibit 1 Municipal Record 248-250 Bayswater Ave.

16The Appellant took the Tribunal through his minor variance application and through the process of the COA meeting. The Appellant was able to direct the Tribunal through the four requested variances and the reasoning of why the variances were needed for the Subject Lands.

17Through the Appellant’s presentation to the Tribunal, including a review of the Municipal record, the Tribunal agreed that the variances that were approved by the COA did meet the four statutory tests of a minor variance and the Tribunal found that these variances should be approved by the Tribunal in the form before the Tribunal.

18The Tribunal will focus the rest of this decision on the variance that was not approved by the COA.

19Through an examination of the municipal record, it is noted by the Tribunal that the Subject Lands are two parcels of land, which are Merged on Title. The Subject Lands have been merged on Title since approximately 1964 or earlier. There is only one set of municipal services for both properties. All the municipal services are located on the property known as 250 Baysville Avenue. The requested minor variance requesting a parking space is for the property known as 248 Baysville Avenue.

20The Appellant claims that the driveway is necessary in order to sever the two properties so one of the two properties could be sold in the future. The Tribunal notes that a consent application was not before the Tribunal at the time of this hearing event.

21In the Appellant’s appeal form, the Appellant states that front yard parking is permitted under s. 140 of the ZBL. The Appellant stated that it was the determination of the Planning Staff that Access/Driveways/Parking were found to be in what is considered “Character Group B” which permits a single driveway or shared driveway as per s. 140 Table “B”.

22The Appellant claimed that even though the Planning Staff concluded that front yard parking is not permitted under s. 109(3) of the ZBL, s. 109(5) “Special Circumstances” does allow front yard parking if:

S. 109(5) Despite subsection (3), parking is permitted in either a front yard, a corner side yard, or in the extension of a required corner side yard into a rear yard if all the following apply:

(a) the parking space is required for the residential use in the zone where that use is located but the use enjoys a right not to provide parking;

(b) parking cannot be located on the lot in conformity with the provisions of this by-law;

(d) a minimum parking space length of 4.6 metres is provided.

23It is the claim of the Appellant that the requested variance meets these requirements and the sketch provided as apart of the application proves that these requirements have been or will be met when the variance is approved.

24In the COA decision, it was the opinion of City Staff that parking in the front yard is not a dominant characteristic of the neighbourhood. It was the opinion of Planning Staff that the existing parking area in front of 250 Bayswater Avenue is an illegal parking space and advised the COA that parking within a driveway is permitted where it leads to a legal parking space.

ANALYSIS AND FINDINGS

25The Tribunal has taken into consideration the oral evidence of the Appellant and the materials that were presented as apart of the application to the COA.

26As a result of the confirmation that both 248 and 250 Bayswater Avenue being Merged on Title, the Tribunal must analyze the decision of the COA through the lense of the properties being as one entity.

27The Tribunal first will analyze the three variances that were approved by the COA. For clarification these variances are listed below:

248 Bayswater Avenue

To permit a reduced rear yard setback of 6.5 meters, whereas the By-law requires a minimum rear yard setback of 7.5 meters.

To permit a reduced interior side yard setback of 1 meter, whereas the By-law requires a minimum interior side yard setback of 1.2 metres.

250 Bayswater Avenue

To permit a reduced rear yard setback of 6.5 meters, whereas the By-law requires a minimum rear yard setback of 7.5 meters.

28The Tribunal agrees with the position of the COA that the Appellant has proven that the three specific variances listed above meet all the tests of a minor variance. The Tribunal finds that these three specific variances do meet the general purpose and intent of the OP and the ZBL, are minor in nature and are to be considered a desirable and appropriate development for the land, building or structure.

29Concerning the request of a driveway in the front yard of 248 Bayswater Avenue, the Tribunal also agrees with the decision of the COA.

30In its analysis of the materials, it was confirmed that two properties are Merged on Title. As a result of this, the materials demonstrate that there is a driveway already servicing the property. Therefore, a request for a driveway in front of the property would not meet the ZBL, even taking into consideration s. 109(5) of the ZBL. It is the opinion of the Tribunal that the requested minor variance does not meet the general intent and purpose of the ZBL, therefore, the Tribunal finds that it cannot consider approving this specific minor variance.

31It was discussed at the COA meeting that the intent of the minor variance application as a whole was to upgrade facets of the property for the intent of separating the properties for a potential sale in the future. It is the opinion of the Tribunal that a driveway may be considered and potentially permitted for the property known as 248 Bayswater Avenue by the COA in the future if or when a consent application is approved by the COA.

ORDER

32THE TRIBUNAL ORDERS that the appeal is allowed in part and the variances to the City of Ottawa Zoning By-law 2008-250 listed below are authorized:

248 Bayswater Avenue

To permit a reduced rear yard setback of 6.5 meters, whereas the By-law requires a minimum rear yard setback of 7.5 meters.

To permit a reduced interior side yard setback of 1 meter, whereas the By-law requires a minimum interior side yard setback of 1.2 metres.

250 Bayswater Avenue

To permit a reduced rear yard setback of 6.5 meters, whereas the By-law requires a minimum rear yard setback of 7.5 meters.

“S. deBoer”

S. deboer

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.