Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 20, 2024
CASE NO(S).: OLT-24-000001
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: John Falbo
Subject: Minor Variance
Description: To permit the construction of a three-storey detached dwelling.
Reference Number: D08-02-23/A-00209
Property Address: 23 Strathcona Avenue
Municipality/UT: Ottawa
OLT Case No.: OLT-24-000001
OLT Lead Case No.: OLT-24-000001
OLT Case Name: Falbo v. Ottawa (City)
Heard: May 22, 2024 by Video Hearing (“VH”)
APPEARANCES:
Parties John Falbo (“Applicant”)
Counsel Michelle Cicchino
MEMORANDUM OF ORAL DECISION DELIVERED BY M. QUESNEL AND F. LAVOIE ON MAY 22, 2024, AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The Applicant, is appealing the City of Ottawa (“City”) Committee of Adjustment’s (“COA”) decision to refuse their application for the following Minor Variances (“MV”):
a. To permit a front-facing attached garage, whereas the By-law states that a front facing garage is not permitted as per the outcome of the Streetscape Character Analysis (“SCA”);
b. To permit a driveway (3 metres (“m”) wide), whereas the By-law states that a driveway is not permitted as per the outcome of the SCA;
c. To permit the entrance of the attached garage to be set back 0.3 m from the front edge of the porch, whereas the By-Law states the entrance to the garage must be set back at least 0.6 m further from the applicable lot line than the front edge of the porch; and
d. To permit an increased front yard setback of 3.62 m, whereas the By-Law permits a maximum front yard.
2At the start of the Merit Hearing, the Applicant advised the Tribunal as a result of a revised proposal, the variances at paragraphs c) and d) above were no longer required. To that effect, the Applicant filed an email from Margot Linker, Planner from the City (Exhibit 2) confirming the variances at paragraphs c) and d) no longer appeared necessary following the revised proposal.
3On October 18, 2023, the Applicant submitted a revised application for the MV to the COA. On November 15, 2023, the COA refused the application citing that the requested variances do not maintain the general intent and purpose of the Official Plan, because the proposal does not respect the character of the neighbourhood and does not meet the general intent and purpose of the Zoning By-law (“ZBL”). They also submitted that the proposal does not represent orderly development of the Subject Property that is compatible with the surrounding area.
VARIANCES REQUESTED
4The MV’s that are now requested are as follows:
a. To permit a front-facing attached garage, whereas the By-law states that a front facing garage is not permitted as per the outcome of the SCA; and
b. To permit a driveway (3 m wide), whereas the By-law states that a driveway is not permitted as per the outcome of the SCA.
Parties and evidence
5Michelle Cicchino attended the Hearing, representing the Applicant. The City confirmed with the Tribunal in advance of the Hearing that it would not participate. There were no additional Party or Participant status requests.
6The Applicant’s Book of Documents, which included the MV application form, the package provided to the COA, site and neighbourhood context images, the City Planning Staff Report (“Staff Report”), CoA presentation and Decision were all received by the Tribunal and marked as Exhibit 1.
7The Tribunal heard evidence from Murray Chown, who was affirmed and deemed qualified to provide expert opinion evidence in land use planning.
SUBJECT PROPERTY AND CONTEXT
8The Subject Property is located at 23 Strathcona Avenue in the City of Ottawa (“Subject Property”), which is in the northeast corner of the Glebe neighborhood, south of Highway 417, and west of the Rideau Canal.
9The Subject Property is zoned R3P (1474) (Residential Third Density, Subzone P, Urban Exception 1474), and is located within the Inner Urban Transect on Schedule A, and designated Neighbourhood within the Evolving Neighbourhood Overlay on Schedule B2 of the City Official Plan (“COP”).
10The application is subject to the requirement of a SCA. The intent of the SCA is to ensure that new development demonstrates good urban design and does not adversely impact the streetscape.
11Mr. Chown provided evidence that many other properties on Strathcona Avenue have front-facing garages and driveway and many other properties facing Patterson Avenue have driveways on Strathcona Avenue.
12Mr. Chown also indicated that the Subject Property is already benefiting of a pre-existing road cut that lead to the existing driveway, and indicated that the City staff acknowledged in their Staff Report that Strathcona Avenue is a very automobile-focused avenue.
Applicant’s position and [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
13The Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Planning Act (“Act”) when making a decision regarding a MV application. Under s. 3(5) of the Act, the Tribunal’s Decision on the MV must be consistent with the Provincial Policy Statement, 2020 (“PPS”).
14When considering a proposed variance, the Tribunal must consider all of the four elements set out in s. 45(1) of the Act to determine if the requested variance:
Maintains the general intent and purpose of the official plan;
Maintains the general intent and purpose of the zoning by-law;
Is desirable for the appropriate development or use of the land; and
Is minor in nature.
15All four elements must be satisfied.
16With the City being absent from the proceedings, the Tribunal received no contradictory evidence to the following opinion evidence of Murray Chown.
ACT
17Mr. Chown opined that the proposed development does have regard for matters of provincial interest set out in s. 2 of the Act, as it offers a functional housing for lifestyle changes, is compatible, appropriate, would not impact the environment, and would not result in any adverse impact with a compliant build form.
PPS
18Evidence was provided by Mr. Chown that the PPS does not deal with details like garages and driveways, but is stating that pursuant to s. 1.1.1 b), having a front facing garage would allow older persons the ability to park their vehicle inside the garage and access their house from their vehicle without having to go outside. This is particularly desirable for older persons to avoid slippery ice conditions during the winter months.
19Mr. Chown also refers to s. 1.7.1 e) to state that a front facing garage and driveway will encourage a sense of place, by promoting a well-designed built form to help the older person access their house in the winter months, and that a house with an attached garage will fit well on the street.
20Therefore, Mr. Chown opined that the proposed development is consistent with the PPS.
1. General Intent and Purpose of the OP
21It was the opinion of Mr. Chown that the application conforms to the policies of the applicable Neighbourhood designation under the COP, that the impact of the proposed three-storey detached home with a front-facing garage is minimal, and the integration of the garage into the front facade of the building by adding side windows, results in a functionally and aesthetically superior design to the permitted cantilever design.
22Mr. Chown referred to s. 5.1.1 of the OP, found in an excerpt of the Downtown Core Transect (Exhibit 3) showing that in the Downtown Core, “all development shall maintain and enhance the urban pattern of built and site design”. In comparison, s. 5.2.1 which applies to properties in the Inner Urban Transect, merely describes that the intended pattern is urban. Mr. Chown is of the opinion that in the Inner Urban Transect, there is no obligation to have an urban pattern, it is only intended as per the COP.
23Mr. Chown referred to s. 5.2.2. 3) d) of the COP which indicates that where new development in an Inner Urban Transect is proposed to include parking as an accessory use, such parking shall be hidden from the view of the public realm by being located behind or within the principal building, or underground.
24The Subject Property is designated as Inner Urban Transect, which is a neighbourhood consisting of homes that were constructed pre-war, with an urban pattern of built and mix of uses. Mr. Chown provided evidence that the proposed variances offer compliant yard setbacks, a minimum of two storeys, and limited automobile parking. Mr. Chown stated that the proposed development maintains the consistency of built form setbacks, and preserves the landscaping which aligns with the urban design policies of the COP.
25Therefore, it was the opinion of Mr. Chown that the application’s requested variances meet the intent and purpose of the COP.
2. General Intent and Purpose of the Zoning By-law
26Mr. Chown provided evidence that it is not the intent of the (ZBL to expressly prohibit the provision of garages, but rather to ensure that garages are designed in a manner that do not alter from the streetscape character. Mr. Chown stated that the entrance to the garage will have a maximum width of 3 m and that the development integrates the garage into the façade of the building through the use of uniformed material, windows on the side of the garage door, and utilizes a prominent front porch that will reduce the emphasis on the garage and increase the visual presence of the rest of the house. Mr. Chown opined that the presence of front-facing garages has been demonstrated, and that proposed front-facing garage in the application is consistent with the streetscape character for the neighbourhood. It was the opinion of Mr. Chown that the variance to permit a front-facing garage meets the intent and purpose of the ZBL.
27Mr. Chown stated that the intent of the ZBL provisions related to the front driveway is not prohibited but is only permitted where in accordance with the confirmed SCA and Table 140B and where permitted, the maximum width is as per Table 139(3). Since the Subject Property is between 8.25 m and 15 m, the maximum width of the driveway allowed is 3 m and only a single driveway is permitted. Since the proposed driveway is a single driveway with a 3 m width, it was the opinion of Mr. Chown that the MV met the intent of the ZBL.
3. Desirable for the Appropriate Development or the Use of Land
28Mr. Chown stated that the requested variances collectively would not negatively impact the streetscape and provide good design that supports an already demonstrated existing character within the area, where the front-facing garages exist, and the same driveway configurations are present.
29Therefore, Mr. Chown opined that the proposed development is desirable for the appropriate development or the use of land and will have no impact on the immediate neighbors and the streetscape.
4. Is Minor in Nature
30The variances requesting the front-facing garage and the driveway are required because of the SCA. Mr. Chown provided evidence that the SCA assessment did not consider constructed garages, or garages that are facing Strathcona Avenue directly, but have a municipal address on Patterson Avenue. Mr. Chown stated that many properties immediately surrounding the Subject Property have front-facing garages and driveways. It was the opinion of Mr. Chown that the application for a front-facing garage and driveway is good urban design that does not adversely impact the streetscape, and that the proposed building plan will deliver better results than the permitted cantilever design.
31Mr. Chown opined that there is a demonstrated character of existing front-facing garages and driveways, which indicates that the application does not deviate from the neighbourhood character and would not result in undue or adverse impacts.
32Evidence was presented by Mr. Chown that the Subject Property has a width of 10.8 m, and while the ZBL allows for a single driveway for a lot of this width, it is restricted based on the SCA prohibiting a single driveway.
33In conclusion, Mr. Chown stated that collectively, the proposed variances do not impact the streetscape and maintain the appearance with the existing neighbourhood character. As such, it was the opinion of Mr. Chown that the impact of the application’s variances are minor in nature.
FINDINGS
34The SCA is intended to encourage development to maintain the existing character on the street and provide an objective account of building elements within the vicinity. The existing character of the neighbourhood has been demonstrated by Mr. Chown. The Tribunal finds that the SCA, in this case, does not accurately reflect that character, and further, that the variances requested in the application do in fact align with the existing streetscape character.
35The Tribunal accepts the evidence from Mr. Chown that the limited parking for the Subject Property, as permitted, is concealed with a front-facing garage, and the character of a single use driveway is maintained through a design that would not permit additional legal parking. There will be no impact on side street parking since the property is already benefiting of a road cut and is not removing any side street parking.
36The Tribunal accepts the uncontroverted evidence of Mr. Chown and finds that the requested variances have regard for the provincial interests as expressed in s. 2 of the Act, are consistent with the PPS, and satisfy all four elements set out in s. 45(1) of the Act.
ORDER
37THE TRIBUNAL ORDERS that:
a. The appeal is allowed, and the variances to the City of Ottawa’s Zoning By-Law No. 2008-250 are authorized; and
b. Pursuant to Rule 24.3 of the Ontario Land Tribunal’s Rules of Practice and Procedure, the effective date of this decision is May 22, 2024.
“M. Quesnel”
M. QUESNEL
MEMBER
“F. Lavoie”
F. LAVOIE
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.