|
6. ORVILLE
STATION: APPEALS TO ONTARIO MUNICIPAL
BOARD – MINOR VARIANCES station orville : appels à
la commission des affaires municipales de l’ontario – dérogations mineures |
Committee recommendation as
amended
That Council consider
the report.
Recommandation MODIFIÉ DU Comité
Que
le Conseil examine le rapport.
Documentation
1.
City
Clerk and Solicitor’s report dated 30 June 2009 (ACS2009-CMR-LEG-0021).
2. Extract
of Draft Minutes, 8 September 2009.
Planning
and Environment Committee
Comité de l'urbanisme et de l'environnement
and Council / et au Conseil
Submitted by/Soumis par : M. Rick O'Connor, City Solicitor, Legal
Services/M. Rick O'Connor, Chef du contentieux, Direction des services
juridiques
Contact Person/Personne ressource : L. Christine Enta/L. Christine Enta,
Legal Counsel/Conseillère juridique
Legal
Services/Services juridiques
(613)
580-2424 x 13579, christine.enta@ottawa.ca
SUBJECT:
|
ORVILLE
STATION: APPEALS TO ONTARIO MUNICIPAL
BOARD - MINOR VARIANCES |
|
|
|
OBJET :
|
station orville : appels à la commission des affaires municipales de
l’ontario - dérogations mineures |
That Planning and Environment Committee recommend that Council approve the filing of appeals to the Ontario Municipal Board under subsection 45(1) of the Planning Act with respect to the approval of minor variances and consents being granted by the Committee of Adjustment to the addresses known as 1531-1541 Stittsville Main Street and 4 Orville Street.
Que le Comité de l’urbanisme et de
l’environnement recommande au Conseil d’approuver le pourvoi en appel
auprès de la Commission des affaires municipales de l’Ontario en vertu du
paragraphe 45(1) de la Loi sur l’aménagement du territoire en ce qui
concerne l’approbation de dérogations mineures et les autorisations accordées
par le Comité de dérogation pour le 1531-1541, rue Stittsville Main et le
4, rue Orville.
The Applicant
filed three different applications with the Committee of Adjustment in respect
of the addresses known municipally as 1531, 1535, 1539 and 1541 Stittsville
Main Street, as well as 4 Orville Street.
Two applications were for minor variances from the applicable zoning
by-law and the third was an application for Consent to grant
rights-of-way/easements in relation to a proposed underground parking garage as
well as access to additional at grade parking spaces for development at 4
Orville Street.
Zoning By-law
2008-250 is in full force and effect except for those zone provisions under
appeal. The Applicant sought approval
for a minor variance with respect to landscaping provisions for parking
lots. The applicable section, Table
110(b), is the subject matter of an appeal before the Ontario Municipal Board
at this time. As a result, the former
Goulbourn Zoning By-law No. 40-99 must be referenced as it relates to this
application and the most restrictive provision is applied. The Former Goulbourn Zoning By-law required
a six metre landscape buffer strip between a parking lot and a residential
property. In By-law 2008-250, there is
no minimum landscape buffer required for a parking lot not abutting a street.
The minor
variances requested with respect to 1531-1541 Stittsville Main Street were to
allow for the construction of two, 3-storey stacked mixed use buildings
containing five residential apartment units to be located at the rear of the
four existing commercial buildings located along Stittsville Main Street. The Applicant also proposes construction of
an underground parking garage to be located below the two new mixed-use
buildings.
The minor
variances requested with respect to 4 Orville Street were to allow for the
construction of three separate stacked townhouse buildings, with a total of
thirty-six dwellings units. It is
stated that the underground parking garage proposed at 1531-1541 Stittsville
Main Street will be utilized in order to provide off-site visitor parking as
well as commercial parking for 4 Orville Street.
Based on the
applications before it, the Committee of Adjustment granted approval for
fifteen minor variances and two consents in relation to the proposed
development.
A minor variance
application process is a method for property owners to seek relief or variance
through a Committee of Adjustment when circumstances make it difficult to meet
the standards established in the zoning by-law.
The Planning
Act directs that the Committee of Adjustment must be satisfied that an
application for a minor variance on four points — that the variance requested
maintains the intent and purpose of the Official Plan and Zoning By-law; that
it is considered desirable for the appropriate and orderly development or use
of the land; and that the variance(s), in the view of the Committee is truly
minor in nature.
With respect to
minor variances, there is often a question raised in regard to whether it is
better to file an application for a zoning amendment. There is no established criteria for determining whether an
application is better suited to proceeding as a re-zoning or as a request for minor
variance. An applicant may pre-consult
with Planning staff on the requirements for each, but ultimately, the decision
is left in the hands of the applicant.
If they feel that the test for minor variance is satisfied on all four
considerations, they can proceed to the Committee of Adjustment. In many instances, where there is a need for
one or possibly even three or four minor variances, the test is applied and
they may be granted. In this case, it
is clear that the need for fifteen variances goes beyond the ordinary
understanding of “minor” and should have been considered for an application for
zoning.
It should be
noted that when an owner proceeds with an application before the Committee of
Adjustment, the City’s Planning staff are merely a commenting agency to the
Committee of Adjustment, the authority to provide a formal position of the City
of Ottawa rests with Committee and Council.
The
considerations set out in Section 45 of the Planning Act in determining whether
to approve or refuse an application for minor variance are known as the
four-prong test. This test requires
that the Committee satisfy itself as to the following:
1.
whether the variance requested
maintains the intent and purpose of the Official Plan;
2. whether the variance requested maintains the intent and purpose of
the Zoning By-law;
3. that the variance is desirable for the appropriate and orderly
development or use of the land; and
4. that the variance, in the view of the Committee, is truly minor in
nature.
Extensive case
law has been established both through decisions of the Ontario Municipal Board
and through the courts on the meaning of the test and how these are to be
applied.
It is Legal
Services’ opinion that the applications as filed and presented before the
Committee of Adjustment are not minor in nature. It is incorrect to assess each variance sought as if it were the
sole variance sought. If such rationale
were to be applied consistently, then an application for twenty or thirty
variances could be approved, effectively re-zoning a property in a subversion
of the appropriate development process.
As recently as May 25, 2009 the Divisional Court in the City of Toronto v. Romlek Enterprises,
has confirmed that in consideration applications for minor variances, the
analysis must include the question of a”whether the variances, taken as a
whole, were minor, given the degree to which they departed both from the
Official Plan and the zoning by-law”.
The Stittsville
Village Association has also appealed to the Ontario Municipal Board. The Applicant has been advised that this
report is being brought forward to the 8 September 2009 meeting of Planning and
Environment Committee.
In order to
proceed before the Ontario Municipal Board, Legal Services must retain an
external planner to provide expert planning evidence to the Board as Planning
staff provided comments to the Committee of Adjustment, deeming the variances
to be minor in nature. It is expected
that a hearing on the matter will take no more than two days, and the
anticipated costs of retaining an external planning witness is $20,000 to
$25,000. This cost can be accomodated
within the budget for the Planning and Growth Management Department.
Legal services
to present the position adopted before Council before the Ontario Municipal
Board.
.
ORVILLE
STATION: APPEALS TO ONTARIO MUNICIPAL
BOARD – MINOR VARIANCES
STATION ORVILLE : APPELS À LA COMMISSION DES AFFAIRES MUNICIPALES DE
L’ONTARIO – DÉROGATIONS MINEURES
ACS2009-CMR-LEG-0021 STITTSVILe-KANATA WEST/OUEST (6)
The following written correspondence was received and is held on file with the City Clerk:
· Email (Sept. 2) from J. Aggarwal · Letter (Sept. 7) from M. Agkun
· Email (Sept. 2) from C. Arya · Email (Sept. 1) from M. Assal
· Email (Sept. 2) from M. Bajurny · Email (Sept. 3) from D. Barona
·
Email
(Sept. 2) from M. Basque · Email
(Sept. 3) from A. Bissonnette
·
Email
(Sept. 2) from C. Blaskavitch · Email
(Sept. 3) from C. Board
·
Email
(Sept. 3) from T. Bowrin · Email
(Sept. 2) from M. Bradley
·
Email
(Sept. 3) from D-L Brayton · Email
(Sept. 2) from B. Firestone
·
Email
(Aug. 28) from J. Byers · Email
(Aug. 28) from A. Camposarcone
·
Email
(Sept. 2) from C. Castrucci · Email
(Sept. 3) from C. Chalykoff
·
Email
(Sept. 3) from L. Chapman · Email
(Aug. 28) from K. Charnley
·
Email
(Sept. 2) from J. Chennette · Email
(Sept. 1) from L. Claringbold
·
Email
(Sept. 2) from I. Clark · Email
(Sept. 4) from M. Cornell
·
Comments
(Sept. 8) from A. Composarcone · Email
(Sept. 3) from N. Coyle
·
Email
(Sept. 2) from CRS Ottawa · Email
(Sept. 2) from M. D'Alessio
·
Email
(Sept. 2) from K. Dalpe · Email
(Aug. 28) from S. D'Aoust
·
Email
(Aug. 28) from K. Dolan · Email (Sept. 3) from Duggan-Patterson
·
Email
(Sept. 2) from B. Durance · Email
(Sept. 2) from Duval Renovations
·
Email
(Sept. 1) from EAL Construction · Email
(Sept. 2) from A. Flynn
·
Email
(Sept. 2) from G. Gaylord · Email
(Sept. 1) from H. Glover
·
Letter
(Sept. 3) from GOHBA · Email
(Sept. 7) from M. Grant
·
Email
(Sept. 3) from S. Grundy · Email
(Sept. 2) from E. Hagborg
·
Email
(Sept. 2) from D. Harvey · Email
(Sept. 2) from H. Helm
·
Email
(Sept. 3) from H. Hession · Email
(Sept. 2) from P. Horeczy
·
Email
(Sept. 2) from Huntington Capital · Email
(Sept. 2) from C. Hupka
·
Email
(Aug. 28) from A. Ieradi · Email
(Sept. 2) from B. Ivey
·
Email
(Sept. 3) from A. Jarvis · Email
(Sept. 2) from R. Jutras
·
Email
(Sept. 3) from K. Kelley · Email
(Sept. 2) from P. Kerai
·
Email
(Sept. 3) from G. Kneebone · Email
(Sept. 2) from B. Kutner
·
Email
(Sept. 2) from J. Lal · Email
(Sept. 2) from W. Lally
·
Email
(Sept. 3) from C. Landry · Email
(Aug. 28) from D. Leroux
·
Email
(Sept. 3) from J. Locklin · Email
(Sept. 2) from M. Loiselle
·
Email
(Sept. 1) from J. Lucuik · Email
(Sept. 3) from J. MacKinnon
·
Email
(Sept. 2) from S. Maloney · Email
(Aug. 28) from N. Marchand
·
Email
(Aug. 28) from A. McKenzie · Email
(Sept. 5) from K. McKinna
·
Email
(Aug. 25) from T. McNeilly · Email
(Aug, 28) from Mersiha
·
Submissions
(Sept. 2, 8) from M. Mesic · Email
(Sept. 3) from S. Miller
·
Email
(Aug. 28) from C&W Murkar · Email
(Sept. 2) from V. Naso
·
Email
(Sept. 2) from T. Nemchin · Email
(Sept. 3) from Y. Neron
·
Email
(Sept. 3) from A. O’Malley · Email
(Sept. 2) from N. Orphanos
·
Email
(Sept. 3) from S. Pantazelos · Email
(Aug. 27) from J. Parlier
·
Email
(Sept. 2) from A. Patil · Email
(Sept. 3) from M. Polowin
·
Submission
(May 28) from C. Pullyard · Email
(Sept. 2) from S. Ricci
·
Email
(Sept. 4) from R. Ritchie · Email
(Sept. 3) from C. Saracino
·
Email
(Sept. 2) from E. Schultz · Email
(Aug. 31) from J&B Shaw
·
Email
(Aug. 28) from D. Smith · Email
(Sept. 7) from T. Smith
·
Email
(Sept. 3) from N. Snajdr · Email
(Sept. 3) from J. Spallin
·
Email
(Sept. 2) from M. Stephenson · Email
(Sept. 2) from A. Stevenson
·
Submission (Sept. 8) Stittsville Village Assoc. · Email (Sept. 4) from Y. Therrien
·
Email
(Sept. 2) from J. Thiessen · Emails
(Aug. 25, 28) from P. Vanderburg
·
Email
(Sept. 1) from S. Vignola-Walton · Email
(Aug. 31) from L. Vukic
·
Letter
(May 28) from C. Welch · Email
(Sept. 1) from P. West
Tim Marc, Senior Legal Counsel, advised that the Ward Councillor approached Legal Services with respect to this matter as it was in its appeal period. He noted that Planning staff have provided an opinion that the minor variances were well founded and met the tests provided for under the Planning Act. He stated that Legal Services’ comments are more process related, as there are a large number of minor variances that are involved in this matter. One of the tests that is applied by the Divisional Court, where appeals to an Ontario Municipal Board decision on minor variances are directed, is that even though particular minor variances on their own meet the test under Section 45 of the Act, they must be looked at as a whole. Legal Services believes there is a case to suggest these numerous minor variances should have gone through a rezoning application, which is subject to Planning and Environment Committee and Council approval.
In reply to a question from Councillor Qadri, Mr. Marc confirmed that the Ward Councillor in no way influenced Legal Services decision to pursue an appeal.
Councillor Feltmate asked if Planning staff’s recommendation would be the same if the matter came forward as a zoning application.
Mr. Marc advised that if a zoning application came forward, it would do so with the opinion from City planners looking at the application as a zoning matter. He added that in examining Section 45, one could argue there is as wide and legal scope to do things under Section 34. The Planning Act has a scheme to it and four tests must be met. Divisional Court has said that as a legal matter, one needs to look at the applications as a whole.
Mike Wildman, Manager of Suburban Development Review, stated that professional staff at the City took a look at the proposal from a planning perspective. They first looked at the variances individually, then layered them and ensured they collectively were minor. It was the opinion of staff that the matter is minor and staff would support the proposal if it were submitted as a zoning application.
Further to additional comments from Councillor Qadri, Mr. Wildman stated that any proponent is free to make application to the Committee of Adjustment (COA), which is ultimately responsible to determine if an application is in fact minor. Planning staff provides advice, as a commenting agency, in that regard.
Responding to questions from Chair Hume, Mr. Marc said that Legal Services did not seek outside legal counsel to supplement its position. He explained that Legal Services act on instructions of Committee and Council, and has determined there a credible case that can be put before the OMB. He said that staff would be seeking before the OMB the dismissal of the minor variances without prejudice to then bring forward a rezoning application.
Mr. Marc pointed out that there has been a movement toward strengthening the role of municipalities in the planning process. When matters are equal in balance, they should come to Council as opposed to any place else, because that is the thrust of the amendments to the Planning Act. With respect to scope, there is a much broader ability to do rezoning changes than there are for minor variances. Zoning applications do not have to be minor in nature, or compare one zoning against another. Two of the tests still apply, namely does the proposal meet the policies of the Official Plan and does it represent appropriate planning. The other two test (is it minor, does it meet the balance of the zoning by-law), are not as important considerations with respect to a zoning application.
Chair Hume surmised that the predominant test is to judge whether or not, taken as a whole, were the variances minor.
David
Jenkins, Stittsville Village Association (SVA), indicated full support for the appeal. In doing so, he noted the following points:
·
The
SVA filed a related appeal concerning the decisions of the COA with respect to
this property.
·
The
COA completely ignored the concerns raised by the SVA and others with respect
to the large number of variances requested for the two developments on this
site plan.
·
It is
inappropriate and an abuse of the planning process that a developer should come
before the COA for 15 changes to what is a brand new comprehensive zoning
by-law.
·
At the
very least, the applicant should have been instructed to re-apply to the City
for a site-specific amendment to the zoning by-law. Such a process would allow for the volume of amendments to be
fully debated and considered by the Planning and Environment Committee.
·
The
COA was by no means unanimous in its decision with a three to two majority on the
question.
·
There
are many concerns raised at the hearing or submitted through correspondence,
which were not directly addressed or misaddressed.
·
The
COA concluded that, if the reduced number of parking spaces were not
sufficient, any excess could be accommodated using public parking on Main
Street, and/or with nearby on-street parking; however, on-street parking is not
permitted on Main Street by municipal by-law.
Orville Street is a narrow, local street of 6.6 metres, which cannot
accommodate parking.
·
To
expect people to use the parking lot across Main Street, day and night and in
all weathers, is inappropriate and introduces serious security and safety
issues, particularly as there are no pedestrian crosswalks in the immediate
vicinity.
·
The
COA largely ignore the existing and future traffic issues; however, it did
conclude that the identified traffic issues required a higher level of
resolution.
·
A
pause should be implemented on future development, until such time as the City
has conducted a comprehensive study of the cumulative effect of traffic
generated by new developments on and in the vicinity of Stittsville Main Street
and has come up with some concrete measures to resolve the situation.
·
Stittsville
Main Street is a failing urban arterial road and unless there is a solution to
this problem soon, it eventually will no longer be a viable transportation
corridor.
·
Concerns
were also noted about many of the individual minor variance applications with
regard to parking arrangements, parking space numbers and sizes, set backs,
etc.
·
The
SVA questions COA’s contention that the variance applications meet the
four-point criteria prescribed in the Planning Act.
In
response to questions from Councillor Qadri, Mr. Jenkins reiterated that the
problem with the variances relates to reduced and convoluted parking
arrangements.
Marion Gullock, a long-time Stittsville resident, spoke of the narrowness of Orville Street, which is used by existing neighbours of adjacent streets to exit on to Stittsville Main Street. She urged that the appeal be pursued due to the lack of on-street parking and existing traffic.
Colleen Welch, the adjacent landowner, noted she
is not opposed to new development. She
raised concerns with the proposal as it relates to the following: number of variances, lack of proper
infrastructure, traffic congestion and bottlenecks, safety and health, impact
on property value, precedent-setting, loss of commercial services, and resident
dissatisfaction. Ms. Welch submitted a
petition in support of the appeal, signed by 73 Stittsville residents. The petition is held on file with the City
Clerk.
Lloyd Phillips said the project is being planned and developed as a joint development on two parcels of land. He advised that it is truly a mixed-use compact modest infill that was designed to bring new residential population into old Stittsville Village. This are has been declining in recent years, because of the lack of investment in and the various traffic pressures. Stittsville Main Street enjoys a Traditional Mainstreet designation, but functions as an arterial road. He advised that the number of variances would be reduced if the boundary separating the parcels did not exist. New parking rules also reduce the number of various by one. He stated that the proponent is not looking for any additional development permissions or increase in height or density. He suggested there would be no constructive purpose served by a rezoning application, which would only serve to delay the plan. He advised that a site plan was submitted in 2007 and is nearing approval. From the planning perspective, he asked that Official Plan policies be maintained and good planning principles followed.
Akash Sinha, Dharma
Developments and Orville Station Ltd., tabled
hardcopies of the correspondence received by over 100 supporters of the
project, who do not favour an appeal.
Jim McIninch, Bell Baker, indicated there is no land use planning rational to suggest that
this appeal should be sustained. He
stated there is no reason to believe the project would be any different if the
changes were submitted through a zoning application, since planning staff
supports the development as proposed.
He countered that the legal precedent (City of Toronto v. Romlek Enterprises) cited in the report is very different from the facts of this
application, both in terms of process and substance. He advised that there is no magic threshhold with regard to the
number of minor variances. He argued
against proceeding with the appeal despite the temptation to contribute to the
jurisprudence of Ontario with respect to minor variance.
Alan Whitten represented Stittsville Main Street Limited, which is the owner of the commercial properties fronting onto Main Street. He provided some history as to the acquisition and renovation of the commercial properties along Stittsville Main Street. He suggested that the proposal could bring some of those businesses back to the village core by improving the vibrancy and the viability of this part of Stittsville. He stated that the mixed-use provisions of the Official Plan and the design guidelines for Stittsville Main Street have inspired the applicants. Stittsville Main Street Limited approached Dharma Developments to develop the project. Fifty residential units are permitted on site, but the proposal calls for fewer units to allow for a much better fit with the community. He added that the process has taken more than two and a half years in consultation with City staff.
In response to questions from Councillor Qadri, the group representing the proponent confirmed the goal has always been to be aware of the adjacent community. A site plan exists that would not require minor variances, but it would calls for a five-storey apartment building with the maximum number of units (50) with all parking accommodated on the surface. Mr. Sinha advised that the proponents decided instead to be innovative with the parking to allow for more greenspace and reduce the number of units. He said the intent is to revitalize the economic area and allow for some shared parking with the adjacent commercial use. It will forego the need for the automobile and make better use of the land. Mr. Sinha added that traditional zoning does not necessarily allow for the best development type. He advised that the parking requirements for the existing and proposed uses would be available within the underground parking that is being provided, including the current 19 commercial spaces and one residential unit.
Mr. Marc agreed with Mr. McIninch that the question of minor
variances is not a numbers game, as confirmed by the OMB. In his opinion, the number of variances is
relevant and is at least, if not determinant, an indicator. If the recommendation is ultimately carried
by Council, Legal Services would need to retain an outside planner to provide land use planning advice
to the board.
In response to questions from Councillor Hunter, Mr. Phillips confirmed the number of variances would be reduced if the property line dividing the subject land into two was removed. A variance was also removed with the new zoning provisions for parking in the Traditional Mainstreet zone. He reiterated that the proposal involves one integrated development on two pieces of property with residential and commercial components, which have different rules with regard to parking.
Councillor Hunter spoke against pursuing the appeal, agreeing with planning staff that the variances are truly minor. He also spoke against putting a local matter in the hands of the OMB, which has been decried by many of his colleagues on numerous occasions.
Councillor Feltmate recalled a similar matter in her ward. Mr. Marc advised that legal staff are reviewing how best to deal with situations involving whether a proposal should be dealt with through the minor variance application or zoning process. He noted a motion could have been considered at Council to allow for the appeal to go forward; instead, staff provided a report to allow for public comment and discussion.
Councillor Qadri spoke in support of proceeding with the appeal by providing a PowerPoint presentation, which is held on file with the City Clerk. His comments focused on parking requirements, on-street parking, accidents on Main Street between Orville and Abbott, massing of buildings, parking garage at grade, and number of variances. He urged that the appeal be pursued to allow for confirmation of what is truly minor.
That Planning and Environment Committee recommend
that Council approve the filing of appeals to the Ontario Municipal Board under
subsection 45(1) of the Planning Act with respect to the approval of
minor variances and consents being granted by the Committee of Adjustment to
the addresses known as 1531-1541 Stittsville Main Street and 4 Orville Street.
CARRIED
YEAS (5): M. Bellemare, C. Doucet, B. Monette, S.
Qadri, P. Hume
NAYS (3): D. Holmes, G. Hunter, P. Feltmate
On a point of order, Councillor Doucet noted that he did not vote as he had planned and requested that his vote be recorded in the negative.
Moved by D. Holmes:
That
the Rules of Procedure be waived to allow for a second recorded vote on the
question.
CARRIED
YEAS (7): M. Bellemare, C.
Doucet, D. Holmes, G. Hunter, B. Monette, P. Feltmate, P. Hume
NAYS (1): S. Qadri
That Planning and Environment Committee recommend that Council approve the filing of appeals to the Ontario Municipal Board under subsection 45(1) of the Planning Act with respect to the approval of minor variances and consents being granted by the Committee of Adjustment to the addresses known as 1531-1541 Stittsville Main Street and 4 Orville Street.
LOST
YEAS (4): M. Bellemare, B. Monette, S. Qadri, P.
Hume
NAYS (4): C. Doucet, D. Holmes, G. Hunter, P.
Feltmate
As the matter lost on a
tie vote, Chair Hume advised that this matter would rise to Council with the
following recommendation: That
Council consider the report.