City of Ottawa v. Duozhuang Su, 2024 CanLII 9774

ISSUE DATE: February 05, 2024

CASE NO(S).: OLT-23-001005

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

Appellant: City of Ottawa

Applicant: Duozhuang Su

Subject: Consent

Description: To sever the existing lot into two separate lots with a new single-detached dwelling on the severed lot.

Reference Number: D08-02-23/B-00014

Property Address: 50 Rebecca Crescent

Municipality/UT: Ottawa/Ottawa

OLT Case No.: OLT-23-001005

OLT Lead Case No.: OLT-23-001005

OLT Case Name: City of Ottawa v. Ottawa (City)

Heard: January 22, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Appellant: City of Ottawa	Timothy Marc
Applicant: Duozhuang Su	Michael S. Polowin

MEMORANDUM OF ORAL DECISION DELIVERED BY J. DENYES ON JANUARY 22, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter comes before the Tribunal as a result of an appeal by the City of Ottawa of the Committee of Adjustment (“CoA”) decision wherein the Applicant received provisional consent to sever subject to conditions which must be fulfilled within a two-year period from the date of the CoA decision. However, the CoA chose not to impose the specific condition requested for a development agreement (“Development Agreement”) to address mitigation measures for tree preservation, as the consent application before the CoA did not include any current proposed development.

2The City cited that the CoA had erred by not including a tree protection condition in accordance with the Tree Protection By-law, and the City’s Official Plan sections 4.8.2 Policies 3(e) and 6 which state, as follows, that:

3(e). planning and development review processes shall support the goals and effective implementation of the Tree Protection By-law,

including early consideration of trees in application and business

processes; and,

(6) approvals granted by Council or Committee of Adjustment may include conditions to support tree protection, removal, and replanting.

3In advance of this appeal hearing, the Parties arrived at an agreement wherein the City would no longer challenge consent to sever, and further, that the Parties now were ad idem regarding the mitigation measures outlined in the approved Tree Information Report V 2.0 prepared by Dendron Forestry Services dated July 10, 2023, and associated security for tree protection. The securities, which will be based on the value of the City tree (#7), as identified on the Tree Information Report prepared by Dendron Forestry Services, based upon the site visit of November 11, 2022, shall be retained for two years following completion of construction and returned to the owner only upon the City having received a report from an arborist or appropriate professional confirming that the tree identified is in good health and condition and remains structurally stable. In addition, Trees No. 9 and 8 were also identified. Tree No. 9 was determined to be far enough away from the proposed severance and therefore would not be impacted by the proposed severed lots. However, Tree No. 8 was determined to be the most relevant as it falls directly in the middle of the proposed severed lots.

SUBJECT PROPERTY AND SURROUNDINGS

4The purpose of the Subject Consent Application is to sever the existing lot municipally known as 50 Rebecca Crescent, City of Ottawa, into two (2) separate lots and seeks relief from the minimum required lot width of both the proposed severed and retained parcels, as well as to seek relief from the accessory structure provisions for the retained parcel.

5The severed land, shown as Part 1 on the draft 4R-Plan filed with the application, will have frontage of 23.08 meters on Massey Lane, a depth of 40.18 metres, and will contain a lot area of 919.2 square meters intended to accommodate a single-detached dwelling and will be known municipally as 4807 Massey Lane.

6The retained lot, shown as Part 2 on the said plan, will have frontage of 25.28 meters on Massey Lane and 40.23 meters on Rebecca Crescent, a depth of 40.23 meters, and will contain a lot area of 1016.7 square meters which will retain the existing dwelling and detached garage.

EVIDENCE AND ANALYSIS

7Four Exhibits were entered during the Hearing, as follows:

Exhibit 1: Administrative Notice served by the Tribunal dated November 15, 2023;

Exhibit 2: Presentation Materials of the Applicant;

Exhibit 3: Agreement between the Applicant and The City of Ottawa;

Exhibit 4: CV and Acknowledgement of Expert Duty of Brian Casagrande.

8The Appellant, City of Ottawa, presented no evidence.

9Brian Casagrande was affirmed on behalf of the Applicant/Owner and his qualifications and expertise as a professional and registered land use planner went unchallenged. Mr. Casagrande testified he has been a partner at Fortenn Planning and Design for 20 years and has testified at more than 30 hearings at the Ontario Land Tribunal and its predecessors. He was qualified to give expert opinion evidence in land use planning by the Tribunal.

10Mr. Casagrande provided the Tribunal with aerial photographic context of the Subject Site and Surrounding area depicting the said corner lot property situate on Rebecca Crescent and Massey Lane featuring a large amount of mature vegetation lining the outer edges of the property.

11Mr. Casagrande presented a Tree Information Report diagram prepared by Dendron Forestry depicting the location of the mature trees on the property, their species, diameter, ownership, condition, and Arborist Recommendations. He advised the Tribunal that Tree No. 8 is most relevant given that it falls directly between the proposed future lots.

12Given the consent agreement reached between the Parties, Mr. Casagrande moved on to give evidence on the Policy Framework.

POLICY FRAMEWORK

13The Tribunal must be satisfied that the Application:

a. has regard to matters of provincial interest in s. 2 of the Act;

b. is consistent with the Provincial Policy Statement 2020;

c. conforms to the Ottawa Official Plan (2022) and Comprehensive Zoning By-law (2008-25); and

d. has regard to the criteria set out in s. 51(24) of the Act.

14Mr. Casagrande gave evidence with regard to matters of Provincial interest, emphasizing that the proposed severance is not premature and is in the public interest for the following reasons:

the property is situate on an inner-city flat lot;
it is fully serviced;
no further road is required;
the property is suitable to be subdivided;
no roads have been flagged regarding accessibility or capacity;
the dimensions and shapes of the proposed lots are consistent with the surrounding context;
there are no restrictions that are outside the Zoning By-law;
and, that there are no issues with the conservation of natural resources and flood control.

15He further added, in the public interest, there is adequacy of utilities, municipal services and school sites. He further noted there is no requirement for an additional area of land to be conveyed or dedicated for public purposes.

16Mr. Casagrande cited the importance of optimizing the available housing supply including regard to the efficient use and conservation of energy. And finally, Mr. Casagrande added that there is no site plan obligation for this property.

17He reviewed the Provincial Policy Statement and specifically Policies 1.1.1, 1.3.1.1, 1.1.3.2, 1.4.3. The proposed Consent application creates one new parcel of land promoting efficient development and land use patterns in a settlement area where infrastructure already exists, thereby facilitating residential intensification in accordance with the PPS.

18When reviewing the City of Ottawa Official Plan (2022), Mr. Casagrande testified that the proposed Consent conforms as the Subject Property is designated Neighbourhood in the Official Plan and further conforms with Policy 2 of Section 5.31, Policy 1 of Section 5.3.4, Policy 5 of Section 6.3.1, Policy 4 of Section 6.3.2, and supporting intensification.

19And finally, Mr. Casagrande indicated the Application generally complies with the provisions of the Zoning By-law (ZBL) except as related to the proposed lot widths and the existing setback between an accessory structure and other buildings on the property. The ZBL required lot area is 681.1 square meters, whereas the normal lot area requirement is 1,390 square meters. He noted that Table 156(a) in the By-law allows for a reduction of the lot area of 49 percent from standard requirements and that there is encouragement to sever corner lots, which represents a unique opportunity for these proposed future lots.

20Condition 6 of the Revised Conditions of Approval now forms the basis of the consent agreement between the Parties as follows:

That the Owner(s) prior to the issuance of a building permit, shall enter into a Development Agreement with the City of Ottawa, at the expense of the Owner/Applicant(s), and to the satisfaction of the General Manager of the Planning, Real Estate, and Economic Development Department, or his/her designate. A development agreement is to be registered on Title of the property (where applicable) which will include:

a. The mitigation measures outlined in the approved Tree Information Report V 2.0 prepared by Dendron Forestry Services dated July 10, 2023, and associated security for tree protection. The securities, which will be based on the value of the City tree to be protected (#7), as identified on the Tree Information Report prepared by Dendron Forestry Services, based upon the site visit of November 11, 2022 and stamped by the CoA on July 21, 2023, shall be retained for two years following completion of construction and returned to the owner only upon the City having received a report from an arborist or appropriate professional confirming that the trees identified are in good health and condition and remain structurally stable.

b. The location of the proposed structures outside of the zoned building envelope, including driveways, retaining walls, services, projections, etc., shown on the Grading and Servicing Plan, will be determined based on the least impact to protected trees (#7, #9 and the spruce tree on 4805 Massey Lane, as identified on the Tree Information Report 2.0 prepared by Dendron Forestry Services, based upon the site visit of November 11, 2022 and stamped by the Committee of Adjustment on July 21, 2023) and tree cover, other than a tree for which an arborist report has been provided recommending removal due to the tree's condition. The Owner(s) further acknowledges and agrees that this review may result in relocation of these structures and agrees to revise the plans accordingly to the satisfaction of the Development Review Manager of the Central Branch within the Planning, Real Estate and Economic Development Department, or his/her designate.

The Owner(s) further acknowledges and agrees that this review may result in relocation of these structures and agrees to revise the plans accordingly to the satisfaction of the Development Review Manager of Central Branch within the Planning, Real Estate and Economic Development Department, or his/her designate. Provided however, that any such relocation shall not result in a requirement for a minor variance.

21Mr. Casagrande confirmed the proposed Agreement between the Parties, specifically Item 3 paragraphs (1) and (2) of the Tree Information Report. He recited as follows:

(1) The Owner covenants and agrees to implement the mitigation measures outlined in the approved Tree Information Report and provide the associated security for tree protection. The securities, which will be based on the value of the City tree to be protected (#7, as identified on the Tree Information Report), shall be in the amount of $4,313.90 and shall be retained for two years following completion of construction and returned to the owner only upon the City having received a report from an arborist or appropriate professional confirmed that the trees identified are in good health and condition and remain structurally stable.

(2) The location of the proposed structures outside of the zoned building envelope, including the driveways, retaining walls, services, projections, etc., shown on the Grading and Servicing Plan, will be determined based on the least impact to protected trees (#7, #9 and the spruce tree on 4805 Massey Lane, as identified on the Tree Information Report, and tree cover other than a tree for which an arborist report has been provided recommending removal due to the tree’s condition.

22Mr. Casagrande suggested the proposal is consistent with the PPS (2020), conforms to the policies and objectives of the Neighbourhood designation and overall policies of the Official Plan (2022), meets the intent of the R1AA zone and the City of Ottawa Comprehensive Zoning By-law (2008-250) and the proposed Consent meets the applicable criteria for lot division set out in section 51(24) of the Planning Act thereby represents good planning.

23Mr. Marc on behalf of the City, in his only cross-examination question, asked Mr. Casagrande to confirm that the Revised Condition of Approval found at pages 13 and 14 of his report could be added to the Conditions of Approval. Mr. Casagrande confirmed that to be the agreement between the Parties.

24In accordance with section 53(41) of the Planning Act, Mr. Casagrande confirmed that the Conditions of Approval are reasonable and achievable within the two-year horizon from the final decision.

CONCLUSION

25In summary, based on the foregoing uncontested evidence, the Tribunal finds that the Application has regard to the Provincial interest, is consistent with the PPS, conforms with the Ottawa OP and has regard to the applicable criteria set out in s. 51(24) of the Planning Act.

ORDER

26THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent to sever is given subject to the revised condition of approval No. 6 and in accordance with the agreed upon Tree Information Report quoted at paragraph [21] of this decision.

“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.