Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 13, 2024
CASE NO(S).: OLT-24-000046
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Greg Carter
Subject: Minor Variance
Description: To permit an increased height for an accessory structure, and to permit a greater aggregate floor area.
Reference Number: D08-02-23/A-00254
Property Address: 4120 I Riverside Drive
Municipality/UT: Ottawa
OLT Case No.: OLT-24-000046
OLT Lead Case No.: OLT-24-000046
OLT Case Name: Carter v. Ottawa (City)
Heard: April 23, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Greg Carter (“Appellant”) | Roberto Aburto and Alice Mihailescu |
| City of Ottawa (“City”) | Timothy Marc |
DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The Appellant applied to the City of Ottawa for a Minor Variance regarding the construction of a new detached garage. There is an existing garage which is to be demolished. The Minor Variances applied for are as follows:
a. To permit an increased height of 7.25 metres for an accessory structure, whereas the By-Law permits a maximum height of 6 metres for an accessory structure.
b. To permit an aggregate floor area for all accessory buildings of 278.4 square metres (“m²”), whereas the By-Law permits a maximum floor area of 55 m².
2A planning report was created that recommended refusal of the application. The report outlined some concerns regarding the height variance but recommended refusal of the aggregate floor area variance. The Committee of Adjustment (“CoA”) subsequently refused the application.
3The subject property, 4120 I Riverside Drive, is situated on a private right-of-way off Riverside Drive, south of Hunt Club Road and west of the Ottawa International Airport. The property is part of a larger group of properties labeled A through L, with the minor variance request specifically pertaining to property I. All properties in this area have spacious lots, and the subject lot measures just under one (1) acre at 2915.35 m². The proposed building has a gross floor area of 268 m², eaves of 4.15 m, a roof pitch of 12:12, and an overall height of 9.75 m, with the midpoint of the gable reaching 7.25 m. The maximum gross floor area allowed is 279 m², except for lot 20 (4120L Riverside Drive), which has a maximum of 372 m². The proposed accessory building has a floor area of 268 m², resulting in a total aggregate floor area of 278.4 m². Section 55 of Zoning By-law 2008-250 (“ZBL”) specifies that the maximum aggregate of all accessory buildings on a lot in the EP Zone should not exceed 55 m².
4The subject property is about 10 kilometres from the Ottawa downtown core and is on the Rideau River. The lots in the area have variable sizes and, generally, the area is heavily treed.
5The City of Ottawa Official Plan (“OP”) designates the subject property as Neighbourhood in the Outer Urban Transect. The policies pertaining to this designation support a wide variety of housing types with a focus on lower-density missing-middle housing that reflects the built-form context of the neighbourhood. The property falls within the Airport Operating Influence Zone. The OP also identifies a large portion of the property to fall within the Natural Heritage Features Overlay.
6The subject property is currently zoned Environmental Protected, Subzone 3, with Exception 326, with a height maximum of 10.7 metres for the principal building. The purpose of this zone is to regulate development to minimize the impact of any buildings or structures within these environmental areas and permit only those uses which are compatible with and assist in the protection of the environmental attributes of these lands.
EVIDENCE AND ANALYSIS
7The Tribunal heard from two witnesses:
Timothy Beed for the Appellant – After a review of Beed’s qualifications and without objection, it was determined that Beed may provide expert opinion evidence in the field of Land Use Planning.
Justin Grift for the City – After a review of Grift’s qualifications, and without objection, it was determined that Grift may provide expert opinion evidence in the field of Land Use Planning.
8The following were made exhibits at the Hearing and were proposed jointly:
Joint Book of Documents
Supplemental Book of Documents
9For the application to be granted, it must pass a Legislative test. Pursuant to s. 45(1) of the Planning Act (“Act”), the Tribunal must be satisfied that the requested minor variances:
a) maintain the general intent and purpose of the OP;
b) maintain the general intent and purpose of the ZBL;
c) are minor in nature; and
d) are desirable for the appropriate development or use of the land, building or structure.
10Additionally, the Tribunal must be satisfied that the variances are consistent with the PPS, have regard to matters of Provincial interest, and the Tribunal must have regard to the decision (“Decision”) of the approval authority and the information that was before it when making that Decision.
11After listening to the evidence, the Tribunal prefers that of Beed. Beed’s evidence was clear and straightforward. The Tribunal found that Grift was unnecessarily argumentative regarding uncontested issues, and his evidence was lacking detail.
12Both of the witnesses agreed that the application has regard to s. 2 of the Act and is consistent with the Provincial Policy Statement (“PPS”), and the Tribunal finds the same. The witnesses also agreed that that the subject property is located on a treed, steep private laneway with, currently, 13 lots in total. During cross-examination Grift conceded that the height variance does not fail the four tests.
13Beed informed the Tribunal that the Appellant’s intent is to build a garage for a piece of heavy equipment – a tractor – and that the garage will be designed to appear as a house. Beed further informed the Tribunal that the tractor is used to keep the private gravel laneway clear for the Appellant and the other property owners on that laneway. The Tribunal notes that the neighbours of the subject property supported this application at the CoA.
14Beed opined that the application maintains the general intent and purpose of the OP, as did the staff report and the CoA. Beed stated that the subject property is in the Neighbourhood designation and the subject property also falls within the private service enclave and airport operating zone and natural heritage features overlay. Beed also provided evidence that land use constraints due to proximity to an airport do not apply to accessory structures, and, while the area has unstable slopes, topographic mapping shows that the proposed structure will be built on stable land.
5.3.4 - 1) Neighbourhoods located in the Outer Urban area shall accommodate residential growth to meet the Growth Management Strategy as outlined in Section 3. The Zoning By-law shall implement development standards that transition away from a suburban model and move towards urban built forms as described in Table 6 as applicable and that:
a) Allows and supports a wide variety of housing types with a focus on lower density missing-middle housing which generally reflects the existing built form context of the neighbourhood, which may include new housing types that are currently not contemplated in this Plan[.]
15The City argues that the neighbourhood is not characterized by large accessory structures and therefore the application will not reflect existing built form. The Tribunal disagrees. The evidence shows that most of the lots in this neighbourhood that have dwellings also have accessory structures. The accessory structure currently on the property exceeds what is allowed as-of-right. The area is well-treed, and the garage, once constructed, is intended to appear as a house.
16The Tribunal finds that the application maintains the general intent and purpose of the OP.
17The City argued that the application does not maintain the general intent and purpose of the ZBL as the primary use of the lot, the dwelling, would be dwarfed by the accessory building, the garage. The City interprets the ZBL to say that accessory buildings should be smaller than primary buildings.
18The ZBL definition of Accessory states:
Accessory means aiding or contributing in a secondary way to a principal use to carry out its function, and having regard to this definition:
(a) an accessory use is a land use that is accessory to a principal use;
(b) an accessory building is a building that houses an accessory use;
(c) an accessory structure is a structure, that is not a land use, but is accessory to a principal use and this definition is broadened to include tower antennas and satellite dishes.
(accessoire) (By-law 2013-244)
19Beed’s interpretation of the ZBL is that, based on as-of-right allowances, the primary building could be smaller than the accessory. Also, Beed stated that if the municipality had wanted to include a provision in the ZBL concerning size differentials of different buildings on a lot, they could have.
20The Tribunal does not agree with the City’s argument. The ZBL’s use of terms like “primary” and “accessory” does not imply that one must be larger than the other.
21The Appellant also argued that the application is in line with the Environmental Protection Zone that the property falls under. First, Beed proffered that the use of the tractor will be to keep the laneway clear and safe which is an environmental service, and second, that the garage will have solar panels on it which will lessen its environmental footprint.
22The ZBL states:
The purpose of the EP-Environmental Protection Zone is to:
(1) recognize lands which are designated in the Official Plan as Significant wetlands, Natural Environment Areas and Urban Natural Features that contain important environmental resources which must be protected for ecological, educational and recreational reasons; (By-law 2012-334)
(2) permit only those uses which are compatible with and assist in the protection of the environmental attributes of these lands, or are in keeping with applicable Official Plan policies; and
(3) regulate development to minimize the impact of any buildings or structures within these environmental areas.
23The City was unable to demonstrate that the proposed applications would create any negative impact and/or that said impact was not already minimized. The Tribunal finds that the application adheres to the general intent and purpose of the ZBL.
24The City argued that the proposed application is not minor in nature due to the size of the variance being sought. Grift advised the Tribunal that the variance to increase the aggregate gross floor area is too large to be considered minor yet also stated that the test is not just a mathematical exercise. The City was unable to draw the Tribunal’s attention to any negative impacts to the community or to the neighbours that the approved application might create.
25The City raised arguments regarding whether the garage will be seen from the roadway. The Appellant denies this argument has validity as the area is heavily treed. Also, Beed provided evidence to the Tribunal that the proposed garage is smaller than an as-of-right residential building.
26The Staff Report did highlight a potential privacy concern regarding the second-storey windows on the proposed garage; however, Beed provided evidence that there is no access to the windows from inside the garage. The windows, Beed testified, are for lighting purposes only and there is no way to look out of them from inside the garage.
FINDINGS
27The following conditions were suggested for this appeal to be successful based on the Conditions of Approval raised in the Staff Report and what the Appellant has agreed with:
- that the plans remain substantially in keeping with the diagrams found in Tab 19 of the Joint Document Book, attached as Schedule A to this Decision;
and,
- that a grading plan be prepared at time of building permit, prepared by a relevant professional: Professional Engineer (P.Eng.), Certified Engineering Technologist (CET), Ontario Land Surveyor (OLS), Professional Landscape Architect (OLA), or Professional Architect (OAA).
28Based on the evidence of Beed and through the exhibits, the Tribunal is satisfied that the minor variance application meets all the legislative tests and in general, are representative of good land use planning.
29The Tribunal has given due regard to matters of Provincial interest, including but not limited to the orderly development of safe and healthy communities and the appropriate location of growth and development.
PPS 2024
30This Hearing occurred prior to the enaction of the PPS 2024 and the evidence provided at the Hearing concerned the PPS 2020. Since the conclusion of the Hearing the Tribunal has confirmed with the Parties that the changes to the PPS document do not affect the evidence presented at this Hearing apart from section numbers being changed.
ORDER
31THE TRIBUNAL ORDERS that the appeal is allowed and the variances to City of Ottawa Zoning By-law No. 2008-250 are authorized subject to the following conditions:
- that the plans remain substantially in keeping with the diagrams found in Tab 19 of the Joint Document Book, attached as Schedule A to this Decision;
and,
- that a grading plan be prepared at time of building permit, prepared by a relevant professional: Professional Engineer (P.Eng.), Certified Engineering Technologist (CET), Ontario Land Surveyor (OLS), Professional Landscape Architect (OLA), or Professional Architect (OAA).
“A. Sauve”
A. SAUVE
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 A