Shearer v Ottawa (City), 2024 CanLII 94862

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 27, 2024

CASE NO(S).: OLT-24-000481

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Sandy & Katy Shearer

Subject: Minor Variance

Description: to permit a front-facing attached garage

Reference Number: D08-02-24/A-00047

Property Address: 182 Daniel Avenue

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-24-000481

OLT Lead Case No: OLT-24-000481

OLT Case Name: Shearer v Ottawa (City)

Heard: July 10, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Sandy & Katy Shearer ("Appellants")	Self Represented*
City of Ottawa	Garett Schromm
Champlain Park Community Association ("CPCA")	Heather Pearl*

DECISION DELIVERED BY N. ALLAM AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

Nature Of Application & Appeal

1The case is an appeal of the City of Ottawa ("City") Committee of Adjustment ("COA") decision to refuse an application for a Minor Variance pursuant to subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended ("Act").

2The Application was refused on April 12, 2024, on the basis that the requested variance did not adequately satisfy the statutory four-part test under subsection 45(1) of the Act.

3The Appellants seek to replace an existing 1943 house with a new two-storey multi-generational detached home with a front-facing attached two-car garage. This Minor Variance is required to obtain a building permit to construct their multi-generational home to meet their growing needs.

4To this end, the Appellants have applied to the City's COA for a Minor Variance, as follows:

Minor Variance to permit a front-facing attached garage, whereas the By-law does not permit a front-facing garage based on the conclusions of a Streetscape Character Analysis. By-law sections: Sec.139(3)(c), Sec.140(7)(a), Table 140A(ii)

SITE CONTEXT

5The site is municipally known as 182 Daniel Avenue in the City ("Subject Property").

6The Subject Property is a rectangular-shaped interior lot with frontage along Daniel Avenue and is designated as a local road by the Official Plan ("OP"). The OP designates the Subject Property as an Inner Urban Transect and is subject to the Mature Neighbourhood Overlay. The Subject Property, along with other properties in the general area, is zoned R1P[2159], being Residential First Density, Subzone P, Exception 2159 by the City's Comprehensive Zoning By-law ("ZBL") No. 2008-250. The R1P zone restricts building forms to detached dwellings.

STATUS REQUEST

7Garett Schromm, counsel for the City, explained that the City is choosing to attend as an observer and is not taking a position on the matter in this case.

8The Appellants are not represented by legal counsel or an expert witness. However, the 15-tab Document Book, marked as Exhibit 1, was professionally prepared by an expert in support of their appeal.

9The Tribunal received a written request for Party status from Heather Pearl on behalf of CPCA, with a few case reference documents. As CPCA is a community organization with prior experience with the Tribunal and is proactive with the City, it was decided to give her Party status to present her views on behalf of the CPCA.

10Ms. Pearl was given the opportunity to present her position on the Application. She pointed out that she had no significant concerns with the Application, as requested, regarding the Minor Variance. Her main concern was regarding the Bur Oak tree removal on the rear side of the site within the as-of-right building envelope. The City's tree guidelines address this matter, and tree removal permits are required at the building permit stage.

11Ms. Pearl also addressed the general environmental concerns and the need for green protection in the area. Although her presentation on behalf of CPCA was well conducted, none of the concerns were addressed regarding the Minor Variance to the ZBL subject matter before the Tribunal.

12The Appellants indicated that they retained an arborist to address the option of preserving the Bur Oak tree. Together with the arborist and their designer, they made several design revisions in an attempt to address the matter of protecting the tree while still meeting the requirements of their multi-generational home. The results were not to their satisfaction. This outcome was further discussed with Urban Forestry and the City's Urban Planning department, and it was agreed in their discussions that the as-of-right matter could apply.

THE APPELLANTS' EVIDENCE

13The Appellants proceeded with their evidence in presenting their case by reviewing all key points of their Document Book.

14The Appellant walked through all the steps of due diligence that they went through in order to accommodate and comply with all requirements raised in discussions with the various authorities, including consulting with the City's planning department.

15It was also pointed out that they had eight letters of support and one letter of objection, and that the CPCA also indicated their support for building the new home and that they would prefer a front-facing garage to minimize the paved driveway area required.

16Currently, the Subject Property has a front-facing attached garage, making it a legal non-conforming right.

17It was also noted that the two adjacent homes, one on the opposite side of the road and several other homes in the neighbourhood, enjoy attached front-facing garages. Photographs in this regard were provided in Tab 13 of the Appellant's Document Book.

APPLICATION HISTORY

18The Application before the COA was heard on April 3, 2024,

a) To permit a front-facing attached garage requesting authorization for a minor variance from the Zoning By-law, whereas the By-law does not permit a front-facing garage based on the conclusions of a Streetscape Character Analysis.

19As noted in the City's report, the COA considered all written and oral submissions relating to the Application in making its decision. The Application was refused on the basis that the requested variance, as presented, did not adequately satisfy the statutory four-part test under subsection 45(1) of the Act.

20The Appellant appealed the COA decision to the Tribunal and further submitted the Document Book and Planning Justification Report, which was used for their presentation before the Tribunal.

LEGISLATIVE FRAMEWORK

21The appeal pursuant to s. 45 of the Act is a hearing de novo, and the Appellant bears the onus of demonstrating that the four tests, as set out in s. 45(1) of the Act have been met, namely the requested amendment to the ZBL:

1. Maintains the general intent and purpose of the OP;
2. Maintains the general intent and purpose of the ZBL;
3. Is minor in nature; and
4. Is desirable for the appropriate development or use of the land building or structure.

Is the requested variance consistent with the intent of the Provincial Policy Statement, 2020 ("PPS")?

22In addition to the four statutory tests, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter, in this case, the Application for a variance, must be consistent with the PPS. The Tribunal must also have regard to matters of provincial interest, as well as regard for the decision of the COA and the information it considers while making that decision.

23The PPS was addressed in the Appellants' presentation and Planning Justification Report as follows:

• Section 1.1.3.3 Planning authorities shall identify appropriate locations and promote opportunities for transit-supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment where this can be accommodated taking into account existing building stock or areas, including brownfield sites, and the availability of suitable existing or planned infrastructure and public service facilities required to accommodate projected needs.
• Section 1.1.3.4 Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.
• Section 1.1.3.5 Planning authorities shall establish and implement minimum targets for intensification and redevelopment within built-up areas, based on local conditions. However, where provincial targets are established through provincial plans, the provincial target shall represent the minimum target for affected areas.
• Section 1.2 - Building Strong, Livable and Healthy Communities: This section emphasizes the importance of promoting a mix of housing types to meet the needs of people at different stages of life and with different household compositions. It encourages municipalities to plan for diverse housing options that support community well-being and inclusivity.
• Section 1.6 - Implementation: This section outlines the role of municipalities in implementing policies that promote housing diversity and affordability. It encourages municipalities to use their official plans, zoning bylaws, and development approval processes to support the provision of a range of housing types, which can include configurations suitable for multi-generational living.
• Section 1.7 - Protecting Public Health and Safety: While primarily focused on health and safety considerations, this section indirectly supports housing that can accommodate multi-generational households by ensuring that residential developments are designed and maintained to promote the well-being of residents of all ages.
• Section 1.8 - Implementation Tools: This section discusses various tools and strategies that municipalities can use to implement the policies of the PPS, including planning for diverse housing options and ensuring that housing developments contribute positively to the overall community fabric.

The Ontario Provincial Policy Statement (PPS) addresses various planning issues, including housing, and encourages the development of diverse housing types to meet community needs. When it comes to multi-generational homes, the PPS emphasizes the importance of creating housing options that accommodate different household compositions and lifestyles.

Key points related to multi-generational homes in Ontario's PPS include:

1. Housing Diversity: The PPS promotes housing diversity to accommodate a range of household sizes and types, including multi-generational households. This supports the idea of designing and developing homes that can comfortably accommodate more than one generation under the same roof.
2. Accessory Dwelling Units (ADUs): Ontario's policies often support the creation of ADUs, which are secondary units on residential properties that can be used for multi-generational living. These units can be attached or detached from the primary dwelling and are intended to provide separate, independent living spaces while being part of the same property.
3. Infill Development: The PPS encourages infill development, which involves using vacant or underutilized land within existing communities for new housing. This can include the development of multi-generational homes that fit within the existing fabric of the neighbourhood.
4. Planning for Growth: As Ontario's population grows and demographics change, there is a need for housing that can adapt to different family structures, including multi-generational households. Local municipalities are encouraged to plan for this demographic trend when developing their official plans and zoning bylaws.
5. Community and Social Well-being: Supporting multi-generational homes aligns with promoting social well-being and community cohesion. It allows families to stay together or close by, promotes intergenerational relationships, and can help address housing affordability concerns by sharing costs among family members.

24In summary, the PPS recognizes the importance of multi-generational homes as part of a broader strategy to provide diverse housing options that meet the needs of Ontario's population. Local planning authorities play a crucial role in implementing these policies and ensuring that new developments and housing options are inclusive and responsive to demographic trends.

Does the Variance maintain the general intent and purpose of the City OP?

25The aim of the City OP is to achieve densification of infill development rather than greenfield, replacing functionally obsolete buildings as per OP notes below:

Ottawa's OP, Section 2. Strategic Directions (Ottawa.ca)

Big Policy Move 1: Achieve, by the end of the planning period, more growth than by greenfield development.

Ottawa is projected to grow by 402,000 people by 2046, requiring 194,800 new private households. The city will accommodate this growth within its existing neighbourhoods and villages.

The Official Plan will increase the share of future growth to be within Ottawa's existing built-up area to 60 per cent by 2046, by putting in place zoning and other mechanisms to give the City the opportunity to avoid or delay further expansions. In support of this direction, new policies will increase the variety of affordable, Low-rise housing options for residents within existing neighbourhoods close to Hubs and Corridors, increase the urban tree canopy and promote an evolution to 15-minute neighbourhoods.

The balanced approach continues to promote a mix of housing supply. That mix of housing supply must include a diversity of supply and housing options at different levels of market-based and affordable levels, so there is choice in the market for households to meet their needs.

Does the Variance maintain the intent and purpose of the City ZBL?

26The current ZBL No. 2008-250 is adapted from older ZBLs written for a very different city, with different goals than we have today. They are rooted in an era before the City had light rail transit, before intensification, before climate change, and when the region was not expected to grow past half a million people.

27The Tribunal recognizes that the current ZBL, R1P [2159] (Residential First Density Zone, Subzone P, Urban Exception 2159), Mature Neighbourhood, is intended for preserving the character of the community. The Tribunal finds that the variance proposed will result in the renewal of a dated 1943 residence to create a more up-to-date home that would meet the needs of multi-generational residence requirements while maintaining the general intent and purpose of the ZBL, i.e., safety, aesthetics and orderly development.

28In addition, it should be noted that there are similar built forms with new front-facing garages close by that meet the intent of the ZBL, such as both adjacent neighbouring homes and homes across the street facing the Subject Property.

Is the requested variance minor in nature?

29In this context, the term "minor" refers to variances to a ZBL that are minor in nature and do not constitute a significant change to the intent of the ZBL. After considering the COA application and the Planning Justification Report presented by the Appellants, the Tribunal finds that the subject variance to be minor, as it does not significantly deviate from the scale of housing in the area, does not significantly impact neighbouring properties, maintains the general character and feel of the neighbourhood, and meets the general purpose of the ZBL, i.e., safety, aesthetics and orderly development.

30In this regard, the Tribunal finds that the requested Minor Variance will have a negligible impact on the surrounding properties. The proposed project is similar to the immediate neighbours' properties and others in the area.

Is the requested variance desirable for the appropriate development or use of the land building or structure?

31The Tribunal finds the requested variance is desirable for the appropriate development or use of the land building or structure. The proposed multi-generational home promotes intensification by redeveloping an existing home to meet the character of an existing neighbourhood while providing a multi-generational home.

32Supporting multi-generational homes aligns with promoting social well-being and community cohesion. It allows families to stay together or close by, promotes intergenerational relationships, and can help address housing affordability concerns.

33The Tribunal concurs with the Planning Justification Report that the proposed project represents good planning, is in the interest of the public, and meets the four tests. The counsel for the City was present and did not indicate any objections to the material presented or the Appellants' statements.

34The Tribunal finds that the Minor Variance application is consistent with the PPS. The Tribunal finds that the Minor Variance application meets the general intent and purpose of the City OP and the ZBL and consequently sees it to be minor in nature and is an appropriate use of the Subject Property. It is considered to be good land use planning.

ORDER

35THE TRIBUNAL ORDERS THAT the appeal is allowed and the Minor Variance to Zoning By-law R1P [2159] (Residential First Density Zone, Subzone P, Urban Exception 2159) Zoning By-law sections: Sec.139(3)(c), Sec.140(7)(a), Table 140A(ii) is authorized.

"Nehad Allam"

NEHAD ALLAM 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.