Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 10, 2024
CASE NO(S).: OLT-24-000263
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Jean-Michel Sauvé
Subject: Minor Variance
Description: To legalize and increased floor area of a home-based business operating in existing home
Reference Number: D08-02-23/A-00307
Property Address: 1618 Botsford Street
Municipality/UT: Ottawa/Ottawa
OLT Case No: OLT-24-000263 OLT Lead Case No: OLT-24-000263
OLT Case Name: Sauvé v. Ottawa (City)
Heard: June 3, 2024, by Video Hearing
APPEARANCES:
Parties Jean-Michel Sauve
Counsel Greg Meeds
MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI AND JACKIE DENYES ON JUNE 3, 2024, AND FINAL ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns an Appeal filed by Jean-Michel Sauve (“Applicant/Appellant”) against the City of Ottawa’s (“the City”) Committee of Adjustment’s (“CoA”) decision to refuse a minor variance application (“Application”) pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13, (“Act”) as amended.
2The subject property, municipally known as 1618 Botsford Street in the City of Ottawa (“Subject Property”), is a single detached dwelling with a home-based business within the basement of the dwelling. The Applicant owns, resides in, and provides in-home personal fitness training sessions within the basement of the Subject Property. The Applicant seeks to bring the floor area occupied by the home-based business in compliance with the Zoning By-law (“ZBL”) which permits the cumulative area of a home-based business within a principal dwelling to be up to 25% of the total gross floor area of the dwelling unit.
3The Application was filed with the City, and according to the Staff Planning Report dated February 2, 2024, the City was in support of the Application subject to additional relief. In addition to the Staff report, the CoA heard submissions from neighbours concerning adverse impacts caused by the home-based business in terms of noise, traffic, and parking.
4On February 16, 2024, the CoA denied the Application finding the variance was not desirable for the appropriate development or use of land because it did not fit well in the area, it did not maintain the general intent and purpose of the ZBL and that the request of the variance was not minor because it would create an unacceptable adverse impact on abutting properties and the neighbourhood in general.
5On March 5, 2024, the Applicant filed an Appeal before this Tribunal. There were no issues raised regarding the Administrative Notice of this Hearing dated March 26, 2024, and filed as Exhibit 1.
6The Tribunal received a Participant Statement from Mark Horton (marked Exhibit 2) and an email from Cindie Helmer (marked Exhibit 3) as an Interested Person. No additional persons sought Party or Participant Status.
7For the reasons that follow, the Tribunal finds that the Appeal should be allowed, and the minor variance authorized.
RELIEF SOUGHT
8The Applicant requires a minor variance to permit a home-based business within the existing dwelling occupying 34% (57 square metres) of the gross floor area of the principal dwelling unit, whereas the ZBL requires that the cumulative size of the home-based business in a dwelling unit not exceed 25% (42.35 square metres) of the unit’s gross floor area.
9Of note, counsel for the Applicant advised that the relief sought is an amendment to the Application before the CoA. The relief before the CoA was to permit a home-based business within the existing dwelling occupying 29% (49.1 square meters) of the gross floor area of the principal dwelling unit. Counsel submitted the Staff Report recommending the washroom area within the basement be included in the calculation of the gross floor area and as such the relief requested increased from 29% to 34% of the gross floor area.
10The Tribunal finds the amendment to the original Application before the CoA to be minor in nature, no further notice shall be given to the persons and public bodies who received notice of the original application. pursuant to s. 45 (18.1.1) of the Act.
HEARING
11The Tribunal heard uncontroverted viva voce evidence from Murray Chown of Novatech Engineers, Planners & Landscape Architects, who was qualified as an expert in land use planning. His Curriculum Vitae and Acknowledgement of Expert Duty were marked Exhibit 4.
12The City did not appear before the Tribunal.
13The Applicant’s Book of Documents was marked as Exhibit 5.
LEGISLATIVE TEST
14Minor Variance – s. 45 (1) of the Act: The Tribunal must be satisfied that the requested Variances:
a. Maintain the general intent and purpose of the Region Official Plan (“OP”) and City 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.
15Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan and have regard to matters of Provincial interest, as well as the decision of the Approval Authority and the information that was before it.
ANALYSIS AND FINDINGS
Provincial Policy Statement 2020
16Mr. Chown testified that the PPS s. 1.7 speaks to the promotion of opportunities for economic development. He opined that the requested relief promotes the opportunity for the operation of a business in a residential unit which is in line with the policy in the PPS.
General Intent and Purpose of the Official Plan
17Mr. Chown submitted that under s. 2 of the OP, under Big Policy Move 5, there is support for the long-term economic sustainability and growth in a number of ways which include, new industries and adapting to new ways of doing business, including working from home and establishment of home-based business. He noted that the operation of the Applicant’s business adds to his quality of life and contributes to the economy. He further submitted that the role of the OP is to establish policies that support existing business at all scales, which includes the Applicant’s small-scale business. As such, he opined that the OP supports the Applicant’s business in the geographic area in which he resides.
General Intent and Purpose of the Zoning By-law
18Mr. Chown testified that under s.127 of the ZBL, home-based business are permitted in a dwelling unit and in any zone that permits residential use. The Subject Property is zoned R10 which permits a detached dwelling and therefore a home-based business is listed as a permitted use. He further submitted that the intent of the ZBL is to allow home-based business, but those businesses must not become a nuisance because of, noise, traffic or parking. He opined that the Applicant’s business does not generate noise since the activities are inside the residence. The Applicant provides services for one to two persons at a time. Very limited traffic volume results from his operation. Parking is available on the street and in the Applicant’s driveway. Counsel for the Applicant submitted that, the business has been operating for the past 10 years and neighbours only raised concerns in the past three years when business activities started to take place in the Applicant’s backyard. Those activities have since ceased. It was Mr. Chown’s opinion, that the home-based business does not cause any nuisance with respect to noise, traffic and parking and meets the general purpose and intent of the ZBL.
19Of note, Mr. Chown provided background with respect to the City’s intentions to implement a brand new Comprehensive ZBL. Specifically, he testified that in the Staff’s Report, it was recommended increasing the maximum area for home-based businesses from 25% to 49% of the residential dwelling. He confirmed that although this was in the early stages, this was an indication that City staff recognized the benefits from economic activity. The Tribunal finds that the proposed changes are only in draft form and yet to be finalized. What is before the Tribunal is the current ZBL and the Tribunal must be satisfied that the proposed variance meets the general intent and purpose of the current ZBL.
Desirable for the Appropriate Development use Lands
20The Tribunal agrees with Mr. Chown and is satisfied that the requested variance is desirable for the appropriate use of the lands. The OP and ZBL support the use of residential dwellings for home-based business so long as the operation of the business does not cause a nuisance. This business has historically not been a nuisance and the Applicant ran his business for a number of years without concern from neighbours. It was only once he expanded his operations to the backyard to include cross-fitness sessions, that concerns regarding noise and more traffic were expressed by neighbours. Counsel confirmed that these activities have stopped. It is the Applicant’s intention to continue operating the business indoors. Counsel reminded the Tribunal that the outdoor activities are not related to the Appeal before the Tribunal and the focus should only relate to activities inside the dwelling. As such, the Tribunal is satisfied that the variance sought is appropriate use of the land.
Variances are Minor
21The Tribunal is satisfied that the variance sought is minor in nature and will not cause undue adverse impact on the abutting properties and neighbourhood in general. The Tribunal agrees with Mr. Chown that the relief sought is not about size but the impact. There is no evidence before the Tribunal to demonstrate any adverse impacts with respect to noise or traffic.
FINDINGS
22The Tribunal is satisfied by the evidence provided by Mr. Chown, through his uncontroverted testimony, that the four tests outlined in s. 45 of the Act have been satisfied, and that the proposal has proper regard for matters of provincial interest and is consistent with the PPS and applicable policies. The Tribunal finds that the totality of evidence before the Tribunal supports the authorization of the minor variance.
ORDER
23THE TRIBUNAL ORDERS that the Appeal is allowed and the minor variance to permit a home-based business within the existing dwelling occupying 34% (57 square metres) of the gross floor area of the principal dwelling unit, against City of Ottawa Zoning By-law No. 2008-250 is hereby authorized.
“Yasna Faghani”
YASNA FAGHANI
MEMBER
“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.