Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 18, 2024
CASE NO(S).: OLT-24-000798
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Revelstoke Custom Homes and Renovations Inc.
Subject: Minor Variance
Description: To construct a detached dwelling with an attached front facing garage
Reference Number: D08-02-24/A-00131
Property Address: 48 McNaughton Avenue
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-24-000798
Heard: October 10, 2024 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Revelstoke Custom Homes and Renovations Inc.
Greg Meeds
Old Ottawa East Community Association
Paul Goodkey*
MEMORANDUM OF ORAL DECISION DELIVERED BY JACKIE DENYES ON OCTOBER 10, 2024 AND FINAL ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal concerns an Appeal filed by Revelstoke Custom Homes and Renovations Inc. (“Applicant/Appellant”) against the City of Ottawa’s Committee of Adjustment’s (“CoA”) decision to refuse a Minor Variance from Zoning By-law No. 2008-250 Section 140 pursuant to s. 45(12) of the Planning Act, R.S.O. 1990 c.P.13 (“Act”). The application requests permission to construct a detached Residential single dwelling with an attached front-facing garage. A minor variance is required from the Zoning By-law to permit a front-facing garage.
SUBJECT PROPERTY, ZONING AND SURROUNDINGS
2The Subject Property is municipally known as 48 McNaughton Avenue in the Old Ottawa East neighbourhood within the Inner Urban Transect and is designated Neighbourhood as per the Official Plan in the City of Ottawa (“Subject Property”). The Subject Property is subject to a Street Character Analysis (“SCA”) identified in Character Group A where front-facing garages are not permitted.
3The Subject Property is zoned R1TT by Ottawa’s Comprehensive Zoning By-law (“ZBL”).
REQUEST FOR STATUS
4The Tribunal was in receipt of a Party Status request from Paul Goodkey, Chair of the Planning and Zoning Committee of the Old Ottawa East Community Association (“OOECA”) and who had subpoenaed City Planner Margot Linker to give evidence at this hearing. Mr. Goodkey’s request for Party Status was contested by Mr. Meeds for the Appellant on the basis his evidence is not necessary as it is set out in great detail in the material filed by OOECA. Mr. Meeds further indicated the City’s position is expressed through its decision not to attend this hearing as they do not oppose this Appeal. He suggested that rather, Mr. Goodkey be added as a Participant.
5In considering his request for Party Status, the Tribunal considered Rule 8.2 of the Tribunals Rules of Practice and Procedure (Power of the Tribunal to add or substitute Parties) as well as the “Obvious Factors” set out in 1137528 Ontario Ltd. v. Oakville (Town), 66 OMBR 366, [2010] OMBD No 770 (QL) which include Tribunal consideration of matters of public interest, prejudice, direct interest, multiplicity of proceedings and historical backgrounds.
6Considering Rule 1.4 wherein the Tribunal rules shall be liberally interpreted to offer the best opportunity for a fair, just and expeditious resolution of the merits of the hearing, the Tribunal conferred Party Status to Mr. Goodkey and he may, inter alia, claim costs or, be subject to a costs award as set out in Rule 8.1 of the Tribunals Rules of Practice and Procedure.
7Mr. Goodkey’s Party Status request and attached written submissions were made Exhibit 2. Letters of Incorporation of OOECA was made Exhibit 3 and Mr. Goodkey’s Authorization to represent OOECA was made Exhibit 4.
FOCUS OF THE APPEAL – ISSUE
6The issue before the Tribunal is whether the proposed variance meets the four tests set out in section 45(1) of the Planning Act as follows:
Does the proposed variance maintain the general purpose and intent of the City’s Official Plan (“OP”) and the Old Ottawa East Secondary Plan (“OOESP”)
Does it maintain the general purpose and intent of the Zoning By-law?
Is it desirable for the appropriate use of the Subject Property; and,
Is it minor in nature?
7The Tribunal must also consider that the variance is consistent with the Provincial Policy Statement 2020 (“PPS”), has regard to matters of provincial interest set out in Section 2 of the Act, has regard to the CoA decision and the information considered by it pursuant to s. 2.1(1) of the Act and represents good planning.
BACKGROUND:
CoA Decision
8On July 12, 2024, following a public meeting, the CoA rendered its decision in this matter indicating they were not satisfied that the requested variance met all four tests under subsection 45(1) of the Act noting that the City’s Planning Report raised concerns regarding the application highlighting:
“In this transect, the Official Plan prioritizes the built-form relationship with the public realm through emphasis on front entrance and windows. It directs parking to be hidden from the public realm, to reduce the dominance of the automobile on the streetscape”.
9In arriving at its decision, the CoA also considered the City’s Planning Report authored by Ms. E. King, that the overwhelming majority of existing dwellings on McNaughton Avenue do not feature front-facing garages.
10The CoA found there was insufficient evidence presented demonstrating the proposal was desirable from a planning and public interest point of view and relative to the neighbouring lands and does not represent orderly development that is compatible with the surrounding area.
HEARING
11Murray Chown, M.C.I.P., R.P.P. , Director of Planning and Development at Novatech Engineers, Planners & Landscaping Architects was called by the Appellant and qualified by the Tribunal to provide expert opinion evidence in the field of land use planning. Mr. Chown’s Curriculum Vitae and his expert’s report were entered collectively as Exhibit Five.
12Margot Linker, City Planner, was summonsed by OOECA. Ms. Linker was qualified by the Tribunal to provide expert opinion evidence in the field of land use planning. Ms. Linker’s Curriculum Vitae was entered as Exhibit 10. She stated she had not reviewed this application as it was not hers to review therefore, she was unable to fully answer questions or speak specifically to the threshold issues of the legislative tests to be considered.
13Mr. Goodkey participated fully with the presentation of evidence and gave viva voce evidence on behalf of OOECA. It was his position to construct a detached dwelling with an attached front-facing garage does not meet any of the four test requirements under subsection 45(1) of the Planning Act.
Provincial Policy Statement (“PPS”)
14It was the opinion of Mr. Chown that the proposed variance is consistent with the PPS policies set out in Section 1.1.1 (a) that promotes efficient development and land use patterns; (b) provides for healthy, liveable and safe communities are sustained by accommodating an appropriate affordable and market-based range and mix of residential types and (f) Front-facing garages provides safety concern benefits by improving accessibility for persons with disabilities and older persons by addressing land use barriers.
[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
15It was the professional opinion of Mr. Chown that the proposed variance has regard to matters of provincial interest as set out in Section 2 as the home is certainly well-designed and in character with other new development in the area and specially as set out as follows:
(r) The promotion of built form that is (i) well-designed, (ii) encourages a sense of place, and (iii) provides for public spaces that are of high quality, safe, accessible, attractive, and vibrant.
Does the proposed variance maintain the general purpose and intent of the City’s Official Plan?
16Mr. Chown utilized voluminous streetscape photos and aerial images to illustrate that front-facing garages or carports are not an anomaly and out of character in the neighbourhoods in the vicinity of the Subject Property. In fact, he referenced the home located at 49 Mason Terrace just south of the proposed site, which was approved for a front-facing garage by the CoA within the past year.
17Mr. Chown opined it was important to note the submissions presented to the CoA prepared by City Planner E. King, that properties in this transect, prioritize the built-form relationship with the public realm through emphasis on front entrances and windows in the City’s Official Plan. It directs parking to be hidden from the view of the public realm, to reduce the dominance of the automobile on the streetscape. Mr. Chown asserts that this proposal achieves those goals.
18Through illustration with photographic evidence, Mr. Chown provided two examples, neither one he is recommending, of fully conforming alternatives to allow parking on this site as follows:
He illustrated a “mushroom” house that is a carport with cantilevered upper floors. However, he suggested that leads to garbage/recycling bins being visible and not an attractive solution from the public realm aspect; and,
Parking in the rear yard. Mr. Chown indicated there would be a significant loss of landscaping and create visible impact to the neighbours to the back and to the side
19Mr. Chown referred to Section 5 and Table 6 of the OP – General Characteristics of Urban Built Form and Suburban Built Form and Site Design which, in his opinion, provides guidance only.
20It was the evidence of Mr. Goodkey that the Old Ottawa Secondary Plan (“OOESP”) takes precedence over the OP. He referred to OP Section 5.2.1.1. that the Inner Urban Transect’s built form and site design includes both urban and suburban characteristics and it’s intended pattern is urban as described in OP Section 5 -Table 6, which states the general characteristics of Urban Built Form is “No automobile parking, or limited parking that is concealed from the street and not forming an integral part of a building, such as in a front-facing garage.” Thus, the proposal for an attached front-facing garage does not meet the OP and OOESP intent.
Analysis and Findings
21The Tribunal finds that the proposed variance maintains the purpose and intent of the City’s Official Plan. Through the use of a Streetscape Character Analysis photograph depicting the front door and window elevations situate on this wide lot, emphasizes the proposal’s relationship with the public realm in that it reduces the visual dominance of the automobile from the streetscape by allowing parking in a front-facing garage. The proposed development is in character with and compatible with the existing neighbourhood and is appropriate in terms of scale and massing.
Does the proposed variance maintain the general purpose and intent of the Old Ottawa East Secondary Plan?
22Regarding the general intent of the Old Ottawa East Secondary Plan, Mr. Chown referred to Section 3.4 Area 4 – Old Ottawa East Residential Neighbourhoods which states at Policy (23) “Maintain the general character of these neighbourhoods as expressed by the existing zoning” and Policy (24) “Maintains the traditional pattern of pedestrian priority along the street with any garages relegated to the side or rear of homes and not projecting forward or otherwise dominating the building façade.” It is his evidence that not only does the proposal maintain the general purpose and intent of the OOESP, but it fully conforms to the policies.
Analysis and Findings
23The Tribunal finds that the proposed variance maintains the general purpose and intent of the Old Ottawa East Secondary Plan by maintaining the traditional pattern of pedestrian priority along the street and is in keeping with the numerous front-facing garages in the Old Ottawa East Secondary Plan, as depicted in the photographic evidence presented by Mr. Chown.
Does the proposed variance maintain the general purpose and intent of the Zoning By-law?
24Mr. Chown testified there is no wording contained in the Zoning By-law (“ZBL”) requiring front-facing garages to be setback 3.56 metres (“m”) from the front of dwellings as suggested by OOECA as being an appropriate setback resulting in desirable redevelopment. He referenced a Context Key Plan identifying front-facing attached garages or carports in the immediate neighbourhood and highlighted hose that were included in the Streetscape Character Analysis (“SCA”). City staff concurred that the SCA depicts 20 lots with main doors facing the front lot line and the street or, are accessed by a structure located along the front wall of the dwelling. There are zero, in number, main doors that do not face the front lot line and do not face the street. Given the Subject Property falls within Character Group A of the SCA, section 140 of the ZBA requires that an attached garage or carport facing the street is not permitted. It is a result of that confirmation in the SCA that the proposed variance is required.
25As a visual illustration, the Context Photos Key Plan below depicts the Subject Property in pink in the center of the diagram, the red stars represent the homes included in the SCA and the properties highlighted in blue represent properties with front-facing attached garage or carport.
26Testifying to SCA, Ms. Linker opined it is intended to maintain development within the existing homes on the street. She explained it is a 21-lot analysis within the same block proximity to the Subject Property and addresses elements to control development that regulate driveway size, front door orientations and in 2020 addressed front-facing or non-attached front-facing garages. She declined to state an opinion on whether a front-facing garage on the subject property dominated the front façade of the building due to the many factors to consider (i.e., liveable spaces, features that enhance the front façade by the way it is built on the site) and it was not her Application to review.
27Mr. Goodkey indicated the SCA recognizes that the overwhelming majority of the existing dwellings on McNaughton Avenue do not feature front facing garages. He took the position he ZBL Section 140 and the SCA is that development and redevelopment be consistent with the streetscape’s dominant characteristics. Mr. Goodkey acknowledged he was not involved with this matter at all at the CoA stage or, in preparation for it. He was puzzled by all the emails from Mr. Dance, Vice-Chair of the OOECA, with the City’s Planning Department when ultimately, the only OOECA concern was to ensure the built form on the Subject Property had the same setback as the neighbouring property and not that a front-facing garage was not permitted.
Analysis and Findings
28The Tribunal finds that the proposed variance maintains the general purpose and intent of the Zoning By-law. Mr. Chown reviewed multiple comments contained in emails authored by OOECA. Of particular note, he referred to Mr. Dance’s email acknowledging that front-facing garages have been approved elsewhere in Old Ottawa East and that the OOECA would have no issue with the front-facing garage if the house was set back to meet the averaging of the two adjacent properties. The Tribunal finds the proposal follows all required setbacks as set out in the Zoning Standard Table found at page 177 of the Appellant’s Book of Documents.
Is the proposed variance desirable for the appropriate use of the Subject Property?
29Mr. Chown provided photographic evidence that the proposed variance is desirable for the appropriate use of the subject property by illustrating similar built from within the neighbourhood. He gave examples of a variety of benefits a front-facing garage can achieve (i.e., park a car without it being visible from the street, provides for bicycle storage, direct access into the home from the garage and recycling and garbage storage is out-of-view).
30It was Mr. Chown’s evidence that, a front-facing attached garage provides an opportunity to add substantive soft scape and tree canopy in excess of 54 percent in the front yard, where 40 percent is required. It was his opinion this will greatly enhance the public realm.
31Mr. Chown reviewed letters of support from neighbouring property owners who agree that the benefits of a front-facing attached garage include a wider frontage for the new home and avoids the potential for building to a maximum height or seeking variances to height requirements because the proper redevelopment square footage can be attained.
32Mr. Goodkey acknowledged that some redevelopments with front-facing garages and carports occurred on McNaughton Avenue and neighbouring streets prior to the SCA zoning provisions and “undesirable” front-facing garages were permitted. He argued the intent of the SCA is to ensure the proliferation of front-facing garages do not destroy the traditional pattern of pedestrian priority along the street, infringe on the City’s right-of-way hindering snow removal and to ensure garages are relegated into the rear and side yards of homes in order that they don’t dominate the building façade.
Analysis and Findings
33The Tribunal finds that the proposed variance is desirable for the appropriate use of the Subject Property. The proposal would contribute to the development of a safe, healthy and attractive neighbourhood which is compatible with the evolution of this neighbourhood. Immediate neighbours have provided letters supporting this application and the rejuvenation of older homes in the neighbourhood. The Tribunal finds the proposed variance follows all setbacks, represents good planning and is in the public interest.
Is the proposed variance minor in nature?
34Mr. Chown opined the proposed variance is minor in nature. He alluded to the fact that to provide an alternative option such as parking in the rear yard would result in a significant loss of landscaping impacting the neighbours to the back and to the side yard. He added the proposed development does not dominate the streetscape or the front of the Subject Property as the proposal is in keeping with the proper evolution of the surrounding neighbourhood.
35It was Mr. Goodkey’s opinion the variance is not minor in nature because it will not conserve the cohesiveness of the existing streetscape and will have adverse impacts on the 48 McNaughton streetscape.
Analysis and Findings
36The Tribunal finds that the proposed variance is minor in nature. The immediate neighbours to the west have provided a letter stating no concerns and support the subject application. To locate parking in the rear yard as-of-right would impact the surrounding neighbours by creating a significant loss of soft scape in order to provide a parking space that could create issues of noise and lighting concerns. Overall, in terms of impact, the requested front-facing garage has no impact on the neighbours whereas the as-of-right options have significant impact.
COSTS
37At the conclusion of the hearing, Mr. Meeds requested the Tribunal issue a cost award against the OOECA in the amount of $1,000.00. Mr. Meeds reminded Mr. Goodkey at the commencement of the hearing that perhaps he should request Participant Status rather than be subject to a possible cost award as a Party if he was unsuccessful. It was Mr. Meeds’ submission that Mr. Goodkey read from his notes, failed to call a case, and failed to inform himself sufficiently and there should be consequences for wasted time at this hearing. Mr. Goodkey indicated the OOECA felt this matter should not go uncontested as it was the second case in the neighbourhood, and it was important for the OOECA voice be heard.
38The Tribunal declines to exercise its discretion to award costs in this case. An award of costs by the Tribunal is not routine, is not made lightly, and instead may be considered exceptional. Costs do not “follow the cause” in planning proceedings and are not presumptively payable by an unsuccessful party. Rule 23.9 of the Tribunal’s Rules of Practice and Procedure outlines the circumstances in which costs may be ordered, and specifies that the Tribunal is not bound to order costs even if such circumstances exist.
39In this instance, having reflected upon the conduct of the OOCEA throughout this proceeding, it is the Tribunal’s view such conduct cannot be considered unreasonable, frivolous, vexatious, or bad-faith, and does not warrant the rare exercise of the Tribunal’s discretion to award costs.
THE TRIBUNAL ORDERS
40The Tribunal orders that the appeal is allowed and the variance to the City of Ottawa’s By-law No. 2008-250 is authorized to permit a front-facing attached garage, whereas Section 139(3) and Section 140(7) do not permit a front-facing attached garage as it does not reflect the dominant character as determined by the Streetscape Character Analysis
“Jackie Denyes”
JACKIE DENYES
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.