Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 23, 2024

CASE NO(S).: OLT-23-001133

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Altare Group Inc. Subject: Consent Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-01-23/B-00238 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001133 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Altare Group Inc. Subject: Consent Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-01-23/B-00241 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001134 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Altare Group Inc. Subject: Consent Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-01-23/B-00242 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001135 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Altare Group Inc. Subject: Consent Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-01-23/B-00243 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001136 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v. Ottawa (City)

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

Applicant and Appellant: Altare Group Inc. Subject: Minor Variance Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-02-23/A-00227 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001137 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v. Ottawa (City)

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

Applicant and Appellant: Altare Group Inc. Subject: Minor Variance Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-02-23/A-00228 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001138 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v. Ottawa (City)

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

Applicant and Appellant: Altare Group Inc. Subject: Minor Variance Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-02-23/A-00229 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001139 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v. Ottawa (City)

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

Applicant and Appellant: Altare Group Inc. Subject: Minor Variance Description: To create four separate parcels of land to create four semi-detached dwellings. Reference Number: D08-02-23/A-00230 Property Address: 429 Ancaster Avenue Municipality/UT: City of Ottawa OLT Case No.: OLT-23-001140 OLT Lead Case No.: OLT-23-001133 OLT Case Name: Altare Group Inc. v. Ottawa (City)

Heard: April 10-11, 2024 by Video Hearing

APPEARANCES:

Parties Altare Group Inc. City of Ottawa

Counsel Jennifer Savini Timothy Marc

DECISION DELIVERED BY BITA M. RAJAEE AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matters before the Tribunal were Appeals pursuant to ss. 53(19) and 45(12) of the Planning Act (“Act”) by Altare Group Inc. (“Applicant”) concerning the refusal, on October 27, 2023, by the Committee of Adjustments (“COA”) of the City of Ottawa (“City”) of Consent and Minor Variance applications (“Proposal”) for the property known municipally as 429 Ancaster Avenue in the City (“Subject Property”).

2The Parties raised no concerns with the Tribunal-issued Notice.

DECISION

3The Tribunal finds that the Consent and Minor Variances do not meet the legislative tests. As a result, provisional Consent is not given and the Minor Variances are not authorized.

STATUS REQUESTS

4The Tribunal was tasked with adjudicating the following requests for status.

5Participant status Requests were received from: Woodpark Community Association (“WCA”); Youn-Young Park (“Park”); and David Levesque (“Levesque”). WCA and Park objected to the Proposal, raising a number of concerns, including: whether the existing sewer and water infrastructure could handle the Proposal; loss of green space and drainage area, and the negative impact of the Proposal on the environment; parking issues; impacts on privacy; concerns with garbage storage and pick-up arrangements; lack of compatibility with the neighbourhood; and design-specific concerns with the Proposal. Levesque supported the Proposal overall, indicating that its design fit well with the neighbourhood and Woodpark Community. However, he did raise concerns about the impact of Proposal on infrastructure (water supply, sewer capacity, parking). The Tribunal found that this entity and these individuals had an interest in the matter and will assist the Tribunal in understanding the potential impacts of the Proposal on the local community. The Tribunal granted Participant status to WCA, Park, and Levesque.

6A Party Status request was received from Christian Artuso prior to the Hearing. The form contained minimal information, indicating only that Mr. Artuso intended to speak to the numerous concerns of several neighbours in the area. At the Hearing, Mr. Artuso repeated what was stated on the Party Status Request Form. He said that he did not wish to make an opening or closing statement, apart from outlining certain concerns, did not wish to cross-examine any witnesses, and did not plan to present any evidence.

7The Applicant’s Counsel objected to Mr. Artuso being granted Party status, and suggested that Participant status would be more appropriate. Mr. Artuso would not meet the “obvious factor” test, outlined in the 1137528 Ontario Ltd. v. Oakville (Town), [2010] O.M.B.D. No. 770 case, and would not satisfy the obligations of a Party, as required by Rule 8 of the Tribunal’s Rules of Practice and Procedure (“Rules”). Moreover, public interest would not be advanced if Mr. Artuso was added as a Party, considering the City was already fully opposing the Proposal. Rather, Mr. Artuso’s addition would be prejudicial to the Applicant. The City’s Counsel agreed that Mr. Artuso’s role may be more appropriate as a Participant. Mr. Artuso, in response, reiterated that he did not intend to participate in the Hearing as a Party would be required to do so, and simply wanted to state his concerns. The Tribunal, upon hearing the submission of the Parties and Mr. Artuso’s statements, found that Mr. Artuso did not meet the requirements to be a Party, and he was granted Participant status.

8A Participant can only participate at a Hearing in writing. However, as Mr. Artuso had not filed his materials in advance, the Tribunal determined that it would be fair, cost-effective, and efficient to use its discretion, in accordance with Rule 1.6 of the Rules, and allow Mr. Artuso to provide an oral statement in front of the witnesses. This was preferable to Mr. Artuso submitting a Written Statement after the Hearing, as it allowed the witnesses to address Mr. Artuso’s concerns at the Hearing. Mr. Artuso summarized his concerns as follows:

a. He adopted the information that the other Participants had submitted.

b. He raised concerns with the idea of a shared driveway, including the danger it posed when this one driveway was to be used by 8+ vehicles, especially if small kids would be around.

c. The Proposal would lead to a considerable loss of trees and natural light.

d. The Proposal would change the character of the neighbourhood.

e. He disagreed with the Applicant that the Proposal provided a community-focused design, and raised the concern that the Proposal was actually dangerous with so many people in a small place.

f. He stated that the Applicant had attempted to bypass the due process required for such a Proposal by taking a shortcut.

SUBJECT PROPERTY

9The Subject Property is an atypical lot in the neighbourhood, with an area of 1,414.3 square metres (“m²”). It is currently occupied by a large single-family dwelling and has over 950 m² of vacant land in the L-shaped rear yard. The back of the yard wraps around the property directly on the left of this one.

10It is located in the Woodpark Community of the City. This area is characterized by low-rise residential development consisting of one to three-storey detached, semi-detached, and townhouse dwellings. The neighbourhood has direct access to two planned LRT stations (New Orchard and Lincoln Fields), and a bus rapid transit lane is proposed for the north side of Carling Avenue. Significant intensification is being considered for this area.

11The City of Ottawa Official Plan (“OP”) designates the Subject Property ‘Neighbourhood’ within the Inner Urban Transect (Schedule B2). It is also identified within the Evolving Neighbourhood Overlay. The Subject Property is zoned Residential Second Density Subzone F (R2F), which allows for detached and semi-detached dwellings, and now for multi-unit dwellings as well.

PROPOSAL

12The Applicant seeks to subdivide the Subject Property into four separate parcels of land to build semi-detached dwellings on each parcel. Each would have frontage on Ancaster Avenue. The Proposal would divide the land as follows:

13The particulars of each lot would be:

Lot	Frontage	Depth	Area	Part No.	Municipal Address
1	13.65 m	22.98 m	313.98 m2	Parcels 1, 2, 9	425 A and B Ancaster Avenue
2	0.76 m	43.07 m	300.51 m2	Parcels 3, 4	427 A and B Ancaster Avenue
3	0.76 m	62.50 m	396.06 m2	Parcels 5, 6	429 A and B Ancaster Avenue
4	0.76 m	63.05 m	403.72 m2	Parcels 7, 8	431 A and B Ancaster Avenue

14Four pairs of long semi-detached dwellings are to be constructed. One pair of dwellings would contain one additional dwelling unit per primary unit. In total, eight three/four-bedroom units and two basement secondary units are proposed. Access to the Subject Property’s interior would be provided by a 3 metres (“m”) wide heated driveway, providing access from Ancaster Avenue. This would be a shared laneway for the four lots. Each building would have parking. The semi-detached dwellings would not be further divided for separate ownership of the individual semi-detached units.

15The provisional consent would include easements and rights of way, to provide ingress, egress, and access to utilities, as follows:

a. Over Parts 2 and 9 in favour of Parts 3, 4, 5, 6, 7 and 8;

b. Over Part 4 in favour of Parts 1, 2, 5, 6, 7, 8 and 9;

c. Over Part 6 in favour of Parts 1, 2, 3, 4, 7, 8 and 9;

d. Over Part 8 in favour of Parts 1, 2, 3, 4, 5, 6 and 9; and

e. Over Part 9 in favour of Parts 3, 4, 5, 6, 7 and 8.

16Approval of the Consent would have the effect of creating separate parcels of land that would not be in conformity with the requirements of the City of Ottawa Zoning By-law No. 2008-250, as amended (“ZBL”), and therefore, Minor Variances are required. The list of the Minor Variances requested is attached as Schedule 1 to this Decision. Nineteen variances have been requested and are generally grouped as follows:

a. Nine variances pertain to parking;

b. One variance relates to enhanced protection of an existing tree;

c. Six variances relate to the ZBL definition of lot width and required street frontage; and

d. The remaining three variances relate to the ZBL definition of lot depth.

POSITION OF THE PARTIES

17The Applicant requested that the Proposal be approved as is. The Proposal constitutes an infill of a large parcel of land, addresses the problem of the “Missing Middle” housing in Ottawa, and would have minimal impact on adjacent neighbours. The four lots would have common services and access, and the shared elements would be subject to a Joint Use & Maintenance Agreement (“JUMA”). This is a new business model, and is more efficient and less costly than proceeding with a Zoning By-law Amendment (“ZBA”) as the City wants. The Applicant emphasized that one contributing factor to the Missing Middle problem was that smaller infill housing projects are not financially viable under the current approvals regime. This Proposal (a Consent / MV / JUMA procedure rather than a ZBA) would result in a reduction in time and costs. Furthermore, it would allow for multiple financing options. These would make providing Missing Middle housing more financially viable. In fact, other avenues of creating this Proposal (such as a ZBA) are cost-prohibitive and would make it not feasible. If the Proposal is approved, it would provide Missing Middle housing without impacting the neighbourhood’s character.

18The City requested that the Tribunal dismiss the Appeals, or if not, to impose certain Conditions on the approvals (which the Applicant agreed with for the most part, save one Condition). While the area is appropriate for intensification, the Proposal is not good planning, as three of the lots would be entirely inappropriate, and would not meet the requirements of the Act or the City’s ZBL. The requirement in the ZBL, at section 59, is that each new property must have 3 m of frontage on a public street. In this case, the Applicant has divided a small driveway (3 m in total) such that three of the lots would have a 0.76 m frontage onto Ancaster Avenue. However, this frontage is entirely too small, and a minimum of 2 m is required for infrastructure purposes (sewage system and so on). The appropriate way to proceed with this Proposal, in order to achieve the same end, is through a process called Planning Unit Development (“PUD”) and seeking a ZBA. While that process takes more time than the Consent / MV process, the additional time is appropriate and necessary in this case.

WITNESSES

19On behalf of the Applicant, the Tribunal heard from:

a. Michael Brum, the architect of the project and the person bringing forth this Proposal. Mr. Brum was not qualified as an expert, due to his inability to sign the Acknowledgement of Expert Duty Form as a result of the inherent conflict of interest arising from his involvement in this matter. He provided factual background regarding the Proposal.

b. Doug Gray, a Professional Engineer. Mr. Gray signed an Acknowledgement of Expert Duty form and spoke to his qualifications and experience at the Hearing, which confirm his expertise in the field of Engineering. Without objection, Mr. Gray was qualified to provide expert opinion evidence in the field of Engineering.

c. Paul Robinson, a Land Use Planner. His Curriculum Vitae and Acknowledgement of Expert Duty form were provided and confirm his expertise in the area of Land Use Planning. Without objection, Mr. Robinson was qualified to provide expert opinion evidence in the field of Land Use Planning.

20On behalf of the City, the Tribunal heard from Samantha Gatchene, a Land Use Planner. Her Curriculum Vitae and Acknowledgement of Expert Duty form were provided and confirm her expertise in the area of Land Use Planning. Without objection, Ms. Gatchene was qualified to provide expert opinion evidence in the field of Land Use Planning.

ANALYSIS AND FINDINGS

Legislative Test

21With respect to the Appeal under s. 53(19) of the Planning Act (“Act”), in order to determine whether provisional consent should be granted (with such conditions that may be required), the Tribunal must be satisfied that a Plan of Subdivision is not necessary. If not, then regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of Provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans; the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services.

22With respect to minor variances, as outlined in s. 45(1) of the Act, the Tribunal must be satisfied that the variances:

a. Maintain the general intent and purpose of the OP;

b. Maintain the general intent and purpose of the ZBL;

c. Are desirable for the appropriate development or use of the land, building or structure; and,

d. Are minor in nature.

23Further, as with any planning decision, the Tribunal must be satisfied that the consent and variances are consistent with the Provincial Policy Statement, 2020 (“PPS”) and have regard to matters of Provincial interest in s. 2 of the Act, as well as the decision of the Approval Authority and the information that was before it (though it is not bound by it). Finally, in general, the Tribunal must decide whether the Proposal is representative of good planning in the public interest.

Provincial Policy Statement, 2020

24Both planners agreed that the Proposal is consistent with some of the policies in the PPS as it promotes intensification within the urban boundary, and supports an efficient use of land and Municipal infrastructure.

25However, Ms. Gatchene, the City’s planner, testified that the PPS does not specify what development standards mean at the Municipal level, and Municipal policies and guidelines must be looked at. In this case, the appropriate development standards, clarified in the applicable municipal policies, have not been applied.

26The Tribunal agrees with Ms. Gatchene, and finds that the Proposal is consistent with some policies of the PPS but does not conform to municipal policies as explained below. Since the PPS requires intensification in line with municipal guidelines and policies, in this case, the Tribunal finds that the Proposal is not consistent with the PPS overall, though it is consistent with some of its policies.

Official Plan

27The main issue that the City raised with the Proposal was that if the Consent is given, it would result in the creation of “flagpole” lots with inadequate frontage widths for each lot. They would be inadequate because they would not allow for sufficient space for services to be provided for each lot.

28Ms. Gatchene testified that, in the OP, specifically s. 4.7.1, Policy 23, it is stipulated that applications for new development are required to demonstrate that adequate Municipal services are available and can be allocated to support the proposed development. In this case, three of the proposed lots will have 0.76 m of frontage on the public road. This leads to the creation of a “flagpole” lot and, as further described below, is not sufficient to allow services to be implemented to address each individual lot. A minimum of a 2 m trench for each lot is required to allow for the provision of independent services for each lot. As Ms. Gatchene opined, shared services could be provided in the driveway proposed, but that would require the creation of a PUD (defined in paragraph [18] of this Decision, and described further below), and not 4 separate and independent lots.

29Two of the criteria for a consent, as listed in s. 51(24) of the Act, are:

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(i) the adequacy of utilities and municipal services;

30In this case, the Tribunal agrees with Ms. Gatchene that, since the three additional lots to be created cannot demonstrate the provision of separate and independent services, the consent does not conform to the OP, and therefore does not meet criterion 51(24)(c). Moreover, as Ms. Gatchene testified, and the Tribunal is persuaded, for each lot to be created, it must be shown that it can be individually serviced. However, as explained above and further below, since the frontage of each lot on the public road is not viable for allowing the provision of utilities and Municipal services, then the lots do not meet criterion 51(24)(i).

31Mr. Robinson, the Applicant’s Planner, testified that the Subject Property “has sufficient frontage for road access as well as access to hard and soft services... Municipal services and amenities are existing.” However, the Tribunal is persuaded instead by Ms. Gatchene’s testimony and the submissions by the City’s Counsel, that Municipal services exist for the lot as a whole, but would not be sufficiently available for each lot if they were severed.

32In discussion of s. 51(24)(c), Mr. Robinson relied on an entirely different section of the OP and cited s. 11.5.4, which directs that applications for Consent with lotting patterns and dimensions that result in ground-oriented medium-density residential development “shall” be considered. Thus, Mr. Robinson opined, this Proposal must be considered. However, as will be discussed further below, the material part of that section (s. 11.5.4 of the OP) is a consideration of lot patterns and dimensions. In this particular Proposal, the Tribunal is not convinced that lot patterns and dimensions are supported. Rather, the Tribunal is convinced that the severance would not conform to the requirements in the OP cited by Ms. Gatchene.

33In support of the severance, Mr. Robinson also referred to s. 51(24)(g) of the Act, which requires that regard shall be had for:

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

34In this case, Mr. Robinson explained, regard was had for s. 51(24)(g) because a restriction was proposed, namely the JUMA (defined at paragraph [17] of this Decision). He explained that the consent was requested for mortgage purposes, but the JUMA would be registered on title to ensure the joint functioning of each lot. The draft plan and associated easements would be developed in conjunction with the JUMA, which would ensure shared maintenance of the access lane and services. The JUMA would provide all the required safeguards for the orderly operation and maintenance of the lands and buildings, and would simultaneously permit financing options without the cumbersome and costly operation of a Condominium Plan and the protracted Municipal approvals process required for rezoning. In fact, Mr. Robinson and Mr. Brum both stated that there was no intention to sell each lot individually, and that one owner would keep all four lots, with the tenants signing the JUMA.

35However, the Tribunal agrees with the City that the JUMA did not appear to have the same affect as a Plan of Subdivision agreement or a Plan of Condominium. It appears to be an agreement between private landowners or one landowner owning four properties. When a plan for severance is presented to the Tribunal, the Tribunal must consider the functioning of that property for a long-term period, which as the City stated, would be in excess of 60 years. Each lot that is created must be viable in and of itself.

36In this case, the Tribunal agrees with Ms. Gatchene that each lot could not demonstrate that adequate utilities and Municipal services could be provided, as required by the OP. While Mr. Gray, the engineer presented by the Applicant, testified that adequate services would be available for the proposed units, they could only be available if they were shared amongst them, and not for each separate individual unit, because the driveway widths of each lot are too small to allow for this. Thus, the Tribunal finds that the Consent does not conform to the requirements of the OP, and therefore, does not have regard for the criteria outlined in s. 51(24) of the Act.

37With respect to the Minor Variances, as outlined in s. 45(1) of the Act, they must be shown to maintain the intent and purpose of the OP. Similar to the consent, the Tribunal finds that Minor Variances do not maintain the intent and purpose of the OP. In fact, contrary to the requirements of the OP, the provision of adequate services for each individual lot is not possible due to the frontage being too small for three of the proposed lots.

38Mr. Robinson testified that the Proposal is in conformity with the OP as it allows for gentle intensification while respecting the surrounding context, and contains a mix of housing options while respecting the general height and massing of the neighbourhood. However, he also testified that the ‘Neighbourhood’ designation in the OP, where the Subject Property is located, is planned for “ongoing, gradual, integrated, sustainable and context sensitive development.” Due to the reasons highlighted by Ms. Gatchene, the Tribunal disagrees that the Proposal is sustainable, and agrees with the City that the Proposal would not be an appropriate “ongoing” development.

Zoning By-Law NO. 2008-250, as amended

39As the Land Use Planners testified, the ZBL requires the following:

Frontage on a Public Street (Section 59)

59 (1) No person shall develop or otherwise use any lot unless that land abuts an improved public street for a distance of at least 3.0 metres; and (By-law 2015-190) (By-law 2017-302)

a. No person shall sever any land unless the land severed and the land retained each abut to a street, in accordance with subsection (1). (By-law 2015-190)

b. Where a severance involves more than two lots, subsection (1) applies with all necessary modification to each lot involved.

40Ms. Gatchene testified that this requirement is to allow for adequate servicing as discussed above and required by the OP. With respect to the Consent, Ms. Gatchene testified that s. 51(24)(f) requires regard to be given to “the dimensions and shapes of the proposed lots.” In this case, the severance would result in the creation of extremely narrow lots, that could not meet the requirements of section 59 of the ZBL, with buildings oriented internal to the site and a lot fabric that is inconsistent with the neighbourhood. As such, the severance did not have regard to s. 51(24)(f) of the Act.

41Mr. Robinson also discussed s. 51(24)(f) of the Act. He testified that the Subject Property is irregular, not a standard rectangle or square. The Proposal has divided the Subject Property into four similar-sized lots each of which has frontage on Ancaster Street. The proposed lots are an adaption of existing large lot configurations found in the surrounding neighbourhood. Moreover, lot areas comply with ZBL standards, and each lot has frontage on the existing Municipal road.

42While the Tribunal agrees that the Subject Property is unique and quite large, that the proposed lots may each be similar to existing large lot configurations, and that each lot may technically have frontage on the existing Municipal road, the Tribunal does not agree that the frontages comply with the ZBL standards, as they are a lot less than what is prescribed in the ZBL. The Tribunal was convinced by Ms. Gatchene who explained that the minimum lot frontage must be 3.0 m in accordance with s. 59(1) of the ZBL. In this case, while s. 59(1)(a) is technically complied with as each lot has frontage on the street, 0.76 m is not anywhere near 3.0 m and specifically contradicts the requirements in the ZBL. The Tribunal is persuaded by Ms. Gatchene that the Consent Proposal does not have regard for s. 51(24)(f) of the Act.

43Mr. Robinson testified that a servicing plan has been prepared which addresses access, water, sewer, storm, stormwater management, grading, and drainage in an innovative manner which functions within the 3 m driveway width. The “innovative manner” is the JUMA, discussed above. However, in a Consent Application, the Tribunal is asked to sever land to allow each lot to function independently as separate land units. In this Proposal, each lot could not function independently. As such, the Tribunal finds that the Consent is not supported, as the requirements of the Act and the ZBL are not met with respect to lot width and dimension.

44With respect to the Minor Variances, the Tribunal is persuaded by Ms. Gatchene that the Proposal does not meet the general intent and purpose of the minimum frontage provisions, as outlined in s. 59(1). The intent and purpose of these provisions is to allow for sufficient room for independent vehicle, pedestrian, or service connections to the street. The frontage of 0.76 m provides insufficient room for each lot to achieve this independently. Mr. Robinson testified that “[m]inor variances are not a mathematical calculation but are determined by the net impact of the variance on the surrounding property and the specific site.” While the Tribunal agrees, it finds that the net impact of the Variances would be too significant as each lot could not function independently.

45Additionally, Ms. Gatchene explained that the ZBL’s general intent and purpose is to limit abutting lots that share a driveway access via easements, as it seeks to prevent the creation of a shared laneway for multiple residential buildings. The Tribunal agrees that Proposal overall contradicts this intent and purpose. However, she opined that there is an exception to limiting shared access, namely a PUD, outlined in s. 131 of the ZBL. The PUD allows abutting lots to share a driveway access via easements, precisely what this Proposal is attempting to create. The R2F zone for this Subject Property specifically does not list PUDs as a permitted use, and therefore a ZBA is required. The Tribunal finds that, by trying to achieve a PUD without a ZBA, and by essentially creating a driveway access via easement, the Minor Variances do not maintain the general intent and purpose of the ZBL.

46Lastly, Ms. Gatchene pointed out that the semi-detached dwellings created on each lot could not be severed at a later date, due to the improper lot widths and challenges with providing independent services to each unit. Thus, each individual unit would have to remain how it was for the foreseeable future and could not be treated as a stand-alone unit. The Tribunal agrees and finds that this does not meet the general intent of the ZBL to ensure that lots can access Municipal services and can be severed in a flag lot configuration in the future if needed.

47In contrast, Mr. Robinson testified that the ZBL development standards applying to the Subject Property do not adequately recognize conditions associated with large irregular-shaped lots, despite this being a requirement of section 5.6.1.1.2 of the OP. Nine of the variances (mentioned at paragraph [16c] and [16d] of this Decision) are only required for this reason. It is precisely because of this that the Tribunal finds that Consent and Minor Variances applications are not appropriate in this case. A ZBA application may be more appropriate. If the core definitions of the ZBL cannot be met, then the change being requested is not minor. In other words, if the minor variances are needed because the Proposal cannot meet the definitions in the ZBL, as Mr. Robinson testified, then an amendment may be required rather than a variance.

48To clarify, Mr. Robinson stated that “If the lots were in alignment on Ancaster Ave. each with a standard driveway, we would not require any variances. Variances are required to address irregularly shaped properties in relation to zoning bylaw definitions.” In his testimony, he explained this in detail referring to the variances that had been requested. For example, he said “lot widths measured at the building location meet or exceed the Zoning By-Law’s requirements…Variances are requested for lot width measured at the front yard setback which does not reflect site conditions.” If the ZBL’s definition of lot depth requires sites to be measured from the midpoint of the front line to the midpoint of the rear lot line (as Mr. Robinson testified), then the Variance cannot request that definition to be revised. Rather, it must be workable within that definition and be a change within that definition. This is in contrast to a ZBA, which specifically requests a revision to the ZBL. In this case, the flagpole nature of the Proposal has necessitated the request for some of the Variances. Contrary to the Applicant’s position, the problem that arises is due to the Proposal itself and not to the definition in the ZBL. As such, while the Tribunal recognizes that this is indeed a unique lot, and intensification would be appropriate here, it finds that a Consent and Minor Variances Application are not the way to proceed.

49Of note, as will be discussed further below, the Tribunal cannot mandate that an Applicant proceed with a ZBA Application. The only question before it was the Consent / Minor Variances Application. The Tribunal’s finding on this point is not to say that the Applicant must proceed with a ZBA, but that if the core definition in the ZBL cannot be met, then the Variance is likely not minor.

Desirable for the Land

50As Ms. Gatchene testified and the Tribunal agrees, the proposed lot dimensions and shapes are not desirable for the lands. The configuration creates challenges for access and servicing and does not constitute orderly development. It is not desirable to create four independent lots that cannot function independently. Moreover, as discussed below, this configuration is not desirable for the long-term use of the land.

Minor

51The Tribunal agrees with the City that the Minor Variances do not constitute minor changes because they create a lot fabric and building typology not envisioned by the OP or the ZBL. As Ms. Gatchene testified, the creation of lots with widths of 0.76 m deviates substantially from the surrounding area, in which the majority of semi-detached dwellings have a lot width between 8.0 m and 10.0 m. The magnitude of the changes is demonstrated by the number of zoning deficiencies created when the Proposal is considered as four separate lots. Thus, the Tribunal finds that, as described above, if revisions to the core definitions in the ZBL lead to the need for variances, then a ZBA may be more appropriate, and the Variances requested are not minor.

Good Planning

52Ultimately, when considering a Planning Application, the Tribunal must be satisfied that it constitutes good planning. In this case, the Tribunal is not satisfied of this. In fact, the creation of four separate and independent lots that are entirely dependent on each other would be bad planning. The Tribunal is not satisfied that a JUMA agreement would not result in future disagreements. It is foreseeable that significant problems could arise from the arrangement as has been proposed.

53Mr. Robinson testified that the design of the Proposal would be better than what the ZBL allows as of right. He stated that the height and massing would complement and maintain the existing streetscape. The grassed lawn and single-lane driveway would be consistent with the residential character of the neighbourhood. The site layout would permit cross breezes and sunlight penetration, with less impact on neighbouring properties than the what the ZBL allows to be built as of right.

54While this may be so, it is impractical and not good planning to create individual lots that cannot function as separate lots and must rely on each other or on an agreement between land-owners that is susceptible to legal divisions and disputes.

55Specifically, Mr. Robinson testified as follows:

There has never been any intention to sell units or lots individually…

…a new business model was required to make Missing Middle rental housing viable on this property. This model requires consents to allow flexible finance options.

The proposed JUMA requiring all 4 lots to be remain under single ownership is subject to Municipal review and approval.

56Thus, the Tribunal is being asked to create new lots for financing purposed but that do not function as four lots and are to be owned under single ownership. While the Tribunal understands and acknowledges that financing matters are significant in development, they must be considered secondary to the Proposal itself and not as the main reason for the Proposal. In this case, four lots are being requested so that mortgages could be obtained to allow for the construction of a development that could then only function as one unit. As quoted above, there is no intention to sell these units individually. The Tribunal finds that it is not good planning to create lots that cannot function as what they have been created to be, and cannot be independent.

City’s Suggestion

57The City recommended and preferred that the Applicant proceed by way of a ZBA to rezone the Subject Property such that it would allow for a PUD, described at paragraphs [18] and [45] of this Decision.

58The City submitted that the sort of Proposal that the Applicant had applied for was already contemplated in the ZBL (for example, in ss. 54, 59(5), and 131). Ms. Gatchene testified that a ZBA to allow the PUD use, along with a Plan of Condominium application to establish separate ownership for the lots and manage shared infrastructure, would be a more appropriate mechanism to facilitate the Proposal. Moreover, as the PUD would require a ZBA Application, a detailed review of the Subject Property, along with accompanying studies, would be required and completed prior to approval to ensure adequate shared services could be provided. This process would also likely eliminate most of the zoning deficiencies requiring Minor Variances.

59The Applicant did not want to proceed with a ZBA Application. Rather, it submitted that the JUMA would provide all the required safeguards for the orderly operation and maintenance of the lands and buildings, while permitting financing options without the cumbersome and costly operation of a Condominium Plan and the protracted Municipal approvals process required for rezoning. In her closing arguments, the Applicant’s Counsel submitted that a JUMA could be a condition of a Consent, registered under s. 51(25) of the Act, and it would be binding on all future owners. She suggested that the JUMA is an effective planning tool, with similar authority as a subdivision agreement, and the City could even be a party to that agreement. Moreover, the City could include enforcement provisions.

60In this Hearing, while a JUMA was discussed numerous times and is fundamental to the functioning of the Proposal, the issue before the Tribunal was not whether a JUMA could be valid or ensure shared services. The issue before the Tribunal was the creation of four separate lots, with four separate PINS, and dwellings that require Minor Variances to be constructed. If the Proposal can only be achieved by way of one owner owning all lots, without the ability of the lots to function independently of each other, then the Tribunal would be in effect creating a situation that could not function as what it is supposed to be. This is bad planning, as stated above.

61Similarly, the Tribunal cannot make a decision here on whether a PUD would be the appropriate way to proceed, as it is bound to consider only the Application before it, which is the Consent and Minor Variances Applications. However, the Tribunal notes that Mr. Robinson testified numerous times that many of the Variances are “the result of the Zoning Bylaw not addressing irregular shaped lots.” If the ZBL does not address this particular lot, then, as mentioned above, a ZBA Application may be more appropriate, rather than a Minor Variance one.

62Lastly, the Applicant’s Counsel referred to s. 4.2.1(2)(a) of the OP wherein it is noted that the City shall allow “lot configurations that depart from the traditional lot division.” The Tribunal accepts this. However, while the Tribunal is only assessing the Application before it and cannot make the Applicant submit a different application (such as one for a ZBA), the Tribunal agrees with the City that when making a decision on a non-traditional application, then it is desirable to proceed with a process where the review is “front-loaded” (such as a ZBA where reports and reviews are required at the start of the process), rather than a Consent Application where reviews take place after the decision on approval is made.

Summary and Conclusion

63It was not disputed amongst the Land Use Planning experts that the area is prime for intensification and that the creation of Missing Middle housing is supported by Provincial policies, the OP, and the ZBL. In fact, as Mr. Robinson pointed out, the ZBL allows a build form as of right that has more massing than what the Proposal is proposing. It was also not disputed that the Applicant was attempting to provide that Missing Middle housing, which the policy framework supports. Lastly, it was not disputed that the built-form of two stories would generally be compatible with the existing neighbourhood built form. However, the core of the issue is the way in which the Applicant is attempting to create gentle intensification. The Proposal here is not supported by the OP or the ZBL, nor is it minor or desirable for the community.

64The Tribunal finds that appropriate regard has not been given to the criteria for a Consent Application under s. 51(24) of the Act. The severances do not conform with the OP, create lot dimension and shapes that are undesirable, and have not shown that they will result in lots where adequate services can be provided. By failing to meet the criteria of s. 51(24), it is evident that the severances are not the correct mechanism for the proper development of the Subject Property.

65With respect to the Minor Variances, the Tribunal finds that they do not meet the intent and purpose of the OP or the ZBL, are not desirable for the use of the land, and are not minor. They do not result in a desirable lot fabric or demonstrate that adequate services can be provided.

66Overall, the Tribunal finds that the Proposal is not good planning.

ORDER

67THE TRIBUNAL ORDERS THAT the Appeals by Altare Group Inc. (“Applicant”) pursuant to s. 53(19) of the Planning Act (“Act”) are dismissed and the provisional consent is not to be given.

68THE TRIBUNAL ORDERS THAT the Appeals by the Applicant pursuant to s. 45(12) of the Act are dismissed and the variances to the City of Ottawa Zoning By-law No. 2008-250, attached as Schedule 1 to this Decision, are not authorized.

“Bita M. Rajaee”

BITA M. RAJAEE 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 1

A-00227: 425 A and B Ancaster Avenue, Parts 1, 2 and 9 on Draft 4R- Plan, proposed long semi-detached dwelling:

a. Parking. To permit two reduced parking spaces of 2.4 m x 4.6 m, whereas the Zoning By-Law requires a parking space size be at least 2.6 m x 5.2 m (Section 160, (1), Zoning By-Law, 2008-250, as amended).

b. Driveway. To permit a driveway over a mutual easement leading to one or more parking spaces to be shared by four abutting lots, whereas the Zoning By-Law states that a driveway over a mutual easement leading to one or more permitted parking spaces may be shared by two dwellings on abutting lots (Section 139, (2) (b), Zoning By-Law, 2008-250, as amended).

A-00228: 427 A and B Ancaster Avenue, Parts 3 and 4 on Draft 4R-Plan, proposed long semi-detached dwelling:

c. Parking. To permit two reduced parking spaces of 2.4 m x 4.6 m, whereas the Zoning By-Law requires that a parking space be at least 2.6 m x 5.2 m (Section 160, (1), Zoning By-Law, 2008-250, as amended).

d. Driveway. To permit a driveway over a mutual easement leading to one or more parking spaces to be shared by four abutting lots, whereas the Zoning By-Law states that a driveway over a mutual easement leading to one or more permitted parking spaces may be shared by two dwellings on abutting lots (Section 139, (2) (b), Zoning By-Law, 2008-250, as amended).

e. Lot width. To permit a reduced lot width of 0.76 m, whereas the Zoning By-Law requires a minimum lot width of 10 m (Table 158A, IV, Zoning By-Law, 2008-250, as amended).

f. Lot frontage. To permit a reduced lot frontage on a public street of 0.76m, whereas the Zoning By-Law requires that development abuts an improved public street for a distance of at least 3 m (Section 59, (1), Zoning By-Law, 2008-250, as amended).

g. Rear yard setback. To permit a reduced rear yard setback of 13.9% of the lot depth or 6 m, whereas the Zoning By-Law requires a minimum rear yard setback of 30% of the lot depth or 12.92 metres (Table 144B, Zoning By-Law, 2008-250, as amended).

A-00229: 429 A and B Ancaster Avenue, Parts 5 and 6 on Draft 4R-Plan, proposed long semi-detached dwelling:

h. Parking. To permit two reduced parking spaces of 2.4 m x 4.6 m, whereas the Zoning By-Law requires that any motor vehicle parking space be at least 2.6 m x 5.2 m (Section 160, (1), Zoning By-Law, 2008-250, as amended).

i. Driveway. To permit a driveway over a mutual easement leading to one or more parking spaces to be shared by four abutting lots, whereas the Zoning By-Law states that a driveway over a mutual easement leading to one or more permitted parking spaces may be shared by two dwellings on abutting lots (Section 139, (2) (b), Zoning By-Law, 2008-250, as amended).

j. Lot width. To permit a reduced lot width of 0.76 m, whereas the Zoning By-Law requires a minimum lot width of 10 m (Table 158A, IV, Zoning By-Law, 2008-250, as amended).

k. Lot frontage. To permit a reduced lot frontage on a public street of 0.76m, whereas the Zoning By-Law requires that development abuts an improved public street for a distance of at least 3 m (Section 59, (1), Zoning By-Law, 2008-250, as amended).

l. Rear yard setback. To permit a reduced rear yard setback of 9.6% of the lot depth or 6 m, whereas the Zoning By-Law requires a minimum rear yard setback of 30% of the lot depth or 18.75 metres(Table 144B, Zoning By-Law, 2008-250, as amended).

m. Front yard parking. To permit parking in the required and provided front yard, whereas the Zoning By-Law states that no parking is permitted in a required and provided front yard in the R1, R2, R3, R4, R5, V1, V2, and V3 zones (Section 109, (3) (a) (i), Zoning By-Law, 2008-250, as amended).

A-00230: 431 A and B Ancaster Avenue, Parts 7 and 8 on Draft 4R-Plan, proposed long semi-detached dwelling:

n. Driveway. To permit a driveway over a mutual easement leading to one or more parking spaces to be shared by four abutting lots, whereas the Zoning By-Law states that a driveway over a mutual easement leading to one or more permitted parking spaces may be shared by two dwellings on abutting lots (Section 139, (2) (b), Zoning By-Law, 2008-250, as amended).

o. Lot width. To permit a reduced lot width of 0.76 m, whereas the Zoning By-Law requires a minimum lot width of 10 m (Table 158A, IV, Zoning By-Law, 2008-250, as amended).

p. Lot frontage. To permit a reduced lot frontage on a public street of 0.76m, whereas the Zoning By-Law requires that development abuts an improved public street for a distance of at least 3 m (Section 59, (1), Zoning By-Law, 2008-250, as amended).

q. Rear yard setback. To permit a reduced rear yard setback of 9.5% of the lot depth or 6 m, whereas the Zoning By-Law requires a minimum rear yard setback of 30% of the lot depth or 18.92 metres (Table 144B, Zoning By-Law, 2008-250, as amended).

r. Front yard parking. To permit parking in the required and provided front yard, whereas the Zoning By-Law states that no parking is permitted in a required and provided front yard in the R1, R2, R3, R4, R5, V1, V2, and V3 zones (Section 109, (3) (a) (i), Zoning By-Law, 2008-250, as amended).

s. Rear yard area. To permit a reduced rear yard area of 21.2% of the lot area or 85.52 sqm, whereas the Zoning By-Law requires a minimum rear yard area of 25% of the lot area or in this case, 100.93 sqm (Section 144, (3) (a), Zoning By-Law, 2008-250, as amended).