Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
CORRECTION NOTICE
OLT CASE NO(S).: OLT-24-000264
DECISION ISSUE DATE(S): May 31, 2024
CORRECTION NOTICE ISSUE DATE: June 11, 2024
RE: Connor and Amanda McGarry v. City of Ottawa (City)
Correction to: (On page 4) paragraph [9] should correctly identify the McGarry’s expert witness as “Nico Church” instead of “Rico Church”.
Originally: (In paragraph 9) Rico Church
Corrected to: (In paragraph 9) Nico Church
“Euken Lui”
EUKEN LUI
REGISTRAR
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.
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 31, 2024
CASE NO(S).: OLT-24-000264
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Connor and Amanda McGarry
Subject: Minor Variance
Description: To construct an addition at the side of the existing dwelling
Reference Number: D08-02-2023/A-00318
Property Address: 30 Beckwith Road
Municipality/UT: Ottawa/Ottawa
OLT Case No.: OLT-24-000264
OLT Case Name: Connor and Amanda McGarry v. City of Ottawa (City)
Heard: May 17, 2024 by Video Hearing
APPEARANCES:
Parties Connor and Amanda McGarry
Counsel Crystal McConkey
MEMORANDUM OF ORAL DECISION DELIVERED BY JACKIE DENYES ON MAY 17, 2024, AND FINAL ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal concerns an Appeal filed by Connor and Amanda McGarry (“Applicants/Appellants”) against the City of Ottawa’s Committee of Adjustment’s (“CoA”) decision to refuse a Minor Variance Application pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13, (“Act”) as amended.
2There were no issues raised regarding the Administrative Notice of this Hearing dated April 8, 2024, and filed as Exhibit 1.
SUBJECT PROPERTY, ZONING, AND SURROUNDINGS
3The Subject Property is municipally known as 30 Beckwith Road in the Old Ottawa East neighbourhood in the City of Ottawa (“Subject Property”) and has an area of 308.6 square metres. The Property is a two-storey single-detached dwelling. The Applicants are proposing to construct an addition at the side of their existing dwelling to accommodate a mud room and entry-way storage.
4The Subject Property, along with other properties in the general area, is zoned R1TT, being Residential First Density, Subzone TT, by Ottawa’s Comprehensive Zoning By-law 2008-250. The R1TT zone restricts building forms to detached dwellings.
5The front yard parking space, although not permitted under By-law 2008-250, is a legally non-conforming parking space as it was established in or before 1976, when it was permitted by the City of Ottawa’s Zoning By-law AZ-64, which was in force at the time.
FOCUS OF THE APPEAL
Requested Relief
6The Applicants require two minor variances from the Zoning By-law to obtain a building permit for the construction of the addition, as follows:
a) To permit a reduced parking space length of 4.32 metres, whereas the By-law requires a minimum parking space length of 5.2 metres; and,
b) To permit a reduced parking space width of 2.45 metres, whereas the By-law requires a minimum parking space width of 2.6 metres.
7The effect of the application would be a marked increase in the functionality and livability of the residence while maintaining a single parking space at the side of the dwelling and a single parking space at the front of the dwelling, thereby reducing parking on the Property from four to two spaces.
8On January 8, 2024, the Applicants submitted an application to the CoA. The CoA considered the application and supporting documents and rendered their decision on February 16, 2024, indicating they were not satisfied that the requested variances met all four requirements under subsection 45(1) of the Planning Act, citing insufficient evidence provided demonstrating that the proposed undersized parking space would be both functional and fit well in the neighbourhood, the requested variances are, from a planning and public interest point of view, not desirable for the appropriate development or use of the land, building, or structure on the property, and relative to the neighbouring lands. The CoA also found the proposal would result in a situation of non-compliance with the zoning requirement, therefore the requested variances do not maintain the general intent and purpose of the Zoning By-law.
HEARING
9The Tribunal heard uncontroverted viva voce evidence from Rico Church of Fotenn Planning & Design, who was qualified as an expert in land use planning. His Curriculum Vitae and Acknowledgement of Expert Duty were marked Exhibit 2. His witness statement was marked Exhibit 3.
Legislative Tests
Provincial Policy Statement
10Mr. Church referenced four main sections of the PPS that are most relevant in this appeal and, in his opinion, how the Minor Variance applications are consistent with the PPS.
Section 1.1.1(a) that promotes efficient development and land use patterns;
Section 1.1.1(b) notes that healthy, liveable, and safe communities are sustained by accommodating an appropriate affordable and market-based range and mix of residential types;
Section 1.1.3.4 supports development standards that promote intensification, redevelopment, and compact form; and,
Section 1.4.3 states that planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents of the regional market area by:
(b)(1) permitting and facilitating all housing options required to meet the social, health, economic, and well-being requirements of current and future residents;
(f) establishing development standards for residential intensification, redevelopment and new residential development, which minimize the cost of housing and facilitate compact form, while maintaining appropriate levels of public health and safety.
11It was the professional opinion of Mr. Church that the Minor Variance application has regard for matters of provincial interest as set out in Section 2 as follows:
(h) The orderly development of safe and healthy communities;
(j) The adequate provision of a full range of housing, including affordable housing;
(p) The appropriate location of growth and development;
(q) The promotion of development that is designed to be sustainable, to support public transit, and to be oriented to pedestrians; and,
(r) The promotion of built form that is well designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive, and vibrant.
12The Applicants must also meet the four legislative tests set out for Minor Variances, as follows:
- Maintains the general intent and purpose of the Official Plan;
- Maintains the general intent and purpose of the Zoning By-law;
- Is minor in nature; and
- Desirable for the appropriate development or use of land.
General Intent and Purpose of the Official Plan
13Regarding maintaining the general intent and purpose of the Official Plan, Mr. Church testified that the Subject Property is located within the Inner Urban Transect and is designated “Neighbourhood”. He also indicated that an Evolving Neighbourhood Overlay also applies to the subject property. In support of his opinion, he referred to the Tribunal, as follows:
(a) Policy 1 of Section 5.2.1. wherein the Urban Transect includes the pre-World War II neighbourhoods that immediately surround the Downtown Core, which reflect urban built form characteristics, and the adjacent post-war neighbourhoods reflect the suburban characteristics;
(b) Under Policy 5(c), development applications may be required to:
(i) Reduce the number and/or width of private approaches on a site;
(ii) Re-use existing private approaches; or
(iii) Relocate and/or combine existing private approaches with no net increase in number or width.
(c) Section 5.2.1(c) indicates that development applications may be required to, inter alia, re-use existing private approaches.
(d) Section 5.5.2.3(d) discourages parking that is visible from the public realm. Mr. Church suggested that by utilizing the existing driveway with much of the parking space area behind the front wall of the building, and the proposed smaller dimension of the parking space, would reduce the visual impact from the public realm.
(e) Section 5.6.1 outlines policies for lands to which the Evolving Neighbourhood Overlay applies to provide opportunities to areas that may gradually evolve by providing opportunities that allow the City to reach the goals of its Growth Management Framework for intensification through the Zoning By-law.
(f) Policies 2 and 3(b) of Section 6.3.2 outline the policies for lands designated Neighbourhood and where substantial increases of density are planned, and where building form and massing is anticipated to change significantly from the existing context. He indicated the City is in the process of preparing a new Zoning By-law; however the above policies represent the intended of the Official Plan direction.
(g) Lastly, referring to Policies 1 and 3 of Section 4.6.5., contemplating an urban design framework to outline the City’s urban design program, Mr. Church stated that development shall minimize conflict between vehicles and pedestrians and improve the attractiveness of the public realm. As indicated, the proposed parking space is set back a significant distance from the front lot line such that it does not have an imposing visual presence.
14It was the opinion of Mr. Church overall, based on the aforementioned policies, that the proposed variances maintain the general intent and purpose of the Official Plan by providing a parking space that does not have a dominant visual impact on the public realm due to its setback from the front lot line, its compact size, and its location at the side of the existing building, largely behind the mass of the existing dwelling.
Old Ottawa East Secondary Plan
15Mr. Church confirmed that the Subject Property is within the Old Ottawa East Secondary Plan and is designated Residential Low-Rise and is located in Policy Area 4. He referred the Tribunal to Policies 23, 24, and 25 of Section 3.4, which set out the intent to maintain the general character of the neighbourhoods as expressed by the existing zoning, the intent to maintain and promote the traditional pattern of pedestrian priority along the streetscape, reducing the predominance of garages along building facades.
16It was the opinion of Mr. Church that the requested variances maintain the intent of the Secondary Plan by providing a parking space that is in line with the character of the surrounding neighbourhood, incorporating parking spaces located partially as well as fully, in some cases, of their front yards.
Urban Design Guidelines for Low-Rise Infill Housing
17The Urban Design Guidelines for Low-Rise Infill Housing were approved by City Council on July 6, 2022, for the purpose of creating infill development that will enhance streetscapes, result in a more compact urban form, achieve a good fit into existing neighbourhoods and provide new housing design that offers variety, quality, and character.
18It was the opinion of Mr. Church that the proposed variances meet the intent of Guideline 4.1 by providing a parking space with reduced dimensions. As well, the proposed addition and revised parking location will also result in less overall paved area meeting the Guidelines’ intention to reduce hard surface areas.
General Intent and Purpose of the Zoning By-law
19It was the evidence of Mr. Church that the proposed addition meets the applicable Zoning By-law provisions that ensure the proper functionality of the development while the mitigating impact on adjacent properties. He referred the Tribunal to Section 106(3), which contemplates reduced-sized parking spaces with a minimum width of 2.4 metres and a minimum length of 4.6 metres.
20He testified that while the proposed parking space is not perfectly square and widens slightly towards the south, with its width ranging from 2.45 metres at its narrowest point to 2.62 metres at the end closest to the street, even at its narrowest point, the proposed parking space is still wider than the 2.4 metre width contemplated by the Zoning By-law and is thereby compliant with the Zoning-By-law for a portion of its length.
21The photographic evidence submitted to the CoA by the property owners appear to demonstrate sufficient room for the driver to open vehicle doors to enter/exit as needed and further illustrate that vehicles of a certain length can comfortably fit within a 4.32-metre-long parking space. As well, Mr. Church indicated it was noteworthy that the existing detached dwelling incorporates a 7.38 metre setback from the front lot line with a front porch occupying a further 2.3 metres of the front yard, thereby the parking space would be visually screened by the front porch.
22Mr. Church further testified that the Subject Property has a legal non-conforming right to vehicle parking in the front yard and would be legally permitted to park in the exact location where a parking space is proposed to be established through this application, or even further into the front yard.
Minor in Nature
23In summarizing his evidence, he stated that minor in nature has been determined to be a function of whether there is an undue adverse impact being created by the subject variances. He asked the Tribunal to consider the following:
(a) The proposed parking space configuration exists within the established pattern in the surrounding area;
(b) Parking is currently permitted in the front yard on a driveway that leads to a legal parking space representing no perceivable difference in terms of the streetscape character. The variances would permit a legal parking space that is slightly smaller than what is currently permitted by the Zoning By-law.
(c) As indicated in his earlier testimony, the parking space would have a minimum width of 2.45 metres and a maximum width of 2.62, therefore the variance for parking is only required for a portion of the parking space. At its shortest width, the parking space will be 15 centimetres narrower than the required minimum, thereby the difference should not result in an undue adverse impact on the functionality of the proposed parking space.
(d) Lastly, Mr. Church reminded the Tribunal of the supporting comments received from the adjacent neighbours that, from their perspective, “the slightly reduced parking area will have absolutely no impact.”
24It was Mr. Church’s professional opinion that the proposed variances were minor in nature.
Desirable
25After reviewing the desirability for the appropriate development and use of the land, Mr. Church testified that the requested variances would improve the use, livability, and functionality of the existing dwelling. The proposed mud room configuration takes advantage of the existing side entrance to provide a seamless connection between the addition and the existing dwelling, the proposed addition and parking space with reduced dimensions will result in an overall less paved area on the Subject Property.
26It was also Mr. Church’s opinion that the variances are desirable considering their consistency with the PPS enabling an addition that is compact in form and improves the functionality of the existing dwelling, thereby improving the housing stock.
FINDINGS
27Through the evidence of Mr. Church, the Tribunal finds that the request for Variances meets the legislative framework set out in s. 45(1) of the Act as follows:
I. Maintains the general intent and purpose of the City’s OP by conforming to the policies that outline how built form, community character, and compatibility is to be evaluated, as set out in the evidence of Mr. Church;
II. Maintains the general intent and purpose of the Zoning By-law as they will result in functional parking and will be located behind the front building wall with an additional space adjacent to the front porch to allow for the full length of a regularly proportioned parking space;
III. The variances are minor in nature and would not result in an undue adverse impact on the functionality of the proposed parking space that is in keeping with the established pattern in the surrounding neighbourhood. Also, at its shortest width, the parking space will be fifteen centimetres narrower than the required minimum. This difference should not result in an undue adverse impact on the proposed parking space.
IV. The variances are desirable as they allow for an addition that improves the functionality of the existing dwelling and is otherwise compliant with the Zoning By-law resulting in parking that takes up a less paved area than the current condition and is compatible with the existing neighbourhood.
28The Tribunal finds through the evidence of Mr. Church that the request for the variances is consistent with the Provincial Policy Statement as set out previously in Sections 1.1.1(a), (b), 1.1.3.4, and 1.4.3.
29The Tribunal finds the variances have regard to matters of provincial interest set out in Section 2 of the Act as set out previously in (h), (j), (p), (q), and (r) and represent good planning.
ORDER
30THE TRIBUNAL ORDERS that the Appeal is allowed, and the variances to By-law No. 2008-250 are authorized.
“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.