ISSUE DATE: Aug. 15, 2008 PL080465

Ontario Municipal Board Commission des affaires municipales de l’

IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 6829821 Inc. Subject: Minor Variance Variance from By-law No.: 1998 (Zoning) R4B Area 4 Sub Area 4 Property Address/Description: 336 Municipality: City of Ottawa OMB Case No.: PL080465 OMB File No.: PL080465 Municipal No. D08-02-07/A-00493

APPEARANCES:

Parties Counsel*/Agent

6829821 Canada Inc. J. Bradley*

Carole and Ivan Vranjes Carole Vranjes and Michael Wright

INTERIM DECISION OF THE BOARD DELIVERED BY N.C. JACKSON

Before the Board is an Appeal from the City of Ottawa Committee of Adjustment that refused an Application for Minor Variances to City of Ottawa Zoning By-law 1998 to permit a planned unit development of 9 dwelling units at property described municipally as 336 Woodroffe Avenue, and legally as Part of Lots 2 and 3 Plan 461.

Five variances were applied for as follows:

1. To permit a lot area of 1,216 square metres whereas the requirement is 1,625 square metres.

2. To permit building setback from a private laneway of .56 metres whereas the requirement is 1.8 metres.

3. To permit northerly/southerly side yards of 1.2 metres whereas the requirement is 7.5 metres. - 2 - PL080465

4. To permit a front yard of 4.3 metres whereas the requirement is 6.0 metres.

5. To permit a private laneway of 3.6 metres in width whereas the requirement is 6.0 metres.

The Committee in its refusal reasons referred to overdevelopment, access, amenity area, side yard intent, and impact on neighbours.

Procedural Requirements

1. Carole Vranjes appeared as owner of the abutting property to the south, 338 Woodroffe Avenue where she, her husband and son operate a Denture Clinic. She and her planner Michael Wright acted as spokespersons. Ivan and Carol Vranjes were made Parties on consent.

2. Ms Bradley made a Motion to amend her Application under the provisions of section 45(18.1.1) of the Planning Act. She filed as Exhibit 1 a copy of her letter of July 29, 2008 to the Vranjes, to the Woodpark Community Association Inc., to Woodroffe North Community Association and to Maria and Guistino Micucci, owners of abutting property to the north at 316 Woodroffe, all who had appeared at the Committee of Adjustment Hearings.

The letter confirmed changes in the Application as follows:

(a) The original 9 units, reduced at the Committee hearing to 6, are reduced to 5 townhouse units - 2 three storey units in the front and 3 two storey units in the rear.

(b) The number of variances was reduced from 5 to 2 with variance numbers 2, 4 and 5 above, abandoned.

The remaining variances are:

1. To permit a reduced lot area to 1,216 square metres from the required 1,625 square metres; and - 3 - PL080465

3. To permit southerly/northerly side yards of 1.2 metres from the requirement of 7.5 metres.

Only the Woodpark Community Association responded in writing. Their letter of August 5, 2008 filed as Exhibit 5 by Mr. Wright, supports the reduction in units from 9 to 5 as representing improved compatibility with the residential land use pattern on this block face of Woodroffe Avenue. However to make a better fit with the community and meet intensification guidelines in the Ottawa Official Plan and to satisfy the Provincial Policy Statement Woodpark suggests a maximum of 4 units and height limitation of 2 storeys in height. There was no response from the Micuccis and the Woodroffe North Community Association who both do not appear on the Motion or the Appeal Hearing.

Ms Vranjes does object on the basis of late notice and thus what she calls unfair treatment. Based upon discussions between the Parties it appeared that the revised plans were discussed on July 18, 2008 and that subsequently her planner had been in discussions with representatives of the Appellant. Full notice of the hearing was provided to John Blatherwick of the Woodpark Community Association who was recorded earlier at the Committee of Adjustment as representing the Vranjes. From representations it appeared Carole Vranjes understood the issues and the changes to the plans which she continued to oppose. The Board found that the Motion was a significant reduction in the number of units and the number of variances and granted the Motion to amend without further notice.

The Hearing continued. The Board heard testimony from Richard Harrison, land use planner for the Appellant, Richard Wright land use planner for the Vranjes and Carole Vranjes (her written statement is Exhibit 7). The City of Ottawa did not appear in this hearing. Correspondence from City planning indicated no comment which is interpreted to mean no objection.

Neighbourhood Context

The subject property is approximately 72 feet wide, 175 feet deep, being about one third of an acre. On it sits an unoccupied dwelling unit in significant disrepair. To the south, on Woodroffe, is the Vranjes property, a well maintained Denture Clinic building - 4 - PL080465 at 338 Woodroffe, with parking for approximately 8 cars in the paved rear yard. There are 6 windows in the wall of the Vranjes building facing the subject property, at its closest point 1.22 metres from the joint property line, but generally 2.44 metres back for the main wall with the windows. The west side of Woodroffe in this block is generally residential housing constructed in the 1960s.

To the south however, approximately 350 feet, Woodroffe intersects with . Both Carling and Woodroffe are multi lane arterials. On Woodroofe on the east side, at Carling, across from the subject property is Carlingwood, an approximate 513,000 square foot regional shopping centre. There are two accesses to Carlingwood from Woodroffe, one just to the south of the subject property, the second ,signalized, further to the north. The area is well served with public facilities – transit, library, pool and park.

To the immediate north of the subject property on Woodroofe at number 316 is the Micucci property which features row dwellings behind semis facing on Woodroffe, a form of development similar to what is proposed on the subject property. Further north on Woodroffe, west side is a Planned Unit Development, constructed in the year 2000, at number 300.This features 4 townhouses behind a semi detached fronting on Woodroffe. It was approved at 6 units following considerable community involvement, land acquisition and Committee of Adjustment (decision, Exhibit 3) wherein 5 variances were approved of including lot area (to 1563 square metres) and to the northerly and southerly side yards (to 1.2 and 2.5 metres respectively).

Planning Framework

The Ottawa Official Plan designation for the subject property is General Urban Area permitting a full range of residential uses and non residential employment uses. The Ottawa Plan judges proposals in sections 2.51 and 4.11 to ensure compatibility with community design principles.

Current Zoning under Ottawa By-law 93-98 is R4 B. Permitted uses include a planned unit development. That term is not defined but in practice and through the regulations of the zone (section 176(2)) has come to mean frontage on a private right of - 5 - PL080465 way, which serves as a driveway leading to a public street, permitting in effect homes behind homes. There is no density limit directly but the Zoning Bylaw in section 241, states the purpose of the R4 zone is “to encourage medium density development”. No variance to use is proposed. Variance is proposed to lot area, from the required lot area of 1625 square metres to 1216 square metres. Variance is also proposed in the northerly and southerly side yard setbacks from 7.5 metres to 1.2 metres. The actual requirement is 1.2 metres for the first 18 metres from the front property line, then 7.5 metres.

It is to be noted that the City has changed its comprehensive Zoning on June 24, 2008, when it passed By-law 2008-250. This was after the Committee of Adjustment decision dated March 27, 2008 and its hearings held on February 6, February 20, and March 19, 2008. However new zoning must be considered with intent since it has been passed. Zoning on the subject property is now R4D. Side yard regulations have not changed, but lot area has changed. It has been reduced from 1625 square metres to 1400 square metres.

Also to be noted is that a companion application has been filed with the City for site plan approval. This will need to be revised in terms of amendments made in this hearing particularly as to unit count. The Board considers that in the case of a “planned” unit development, that site plan control and approval takes on more significance.

Findings

Variance 1 to reduce lot area from 1625 square metres to 1216 square metres

Planner Wright testifying for the Vranjes testified that the main issues were compatibility. His concerns on behalf of his client included the placement of the proposed structure 15 feet in front of the front wall of the dental clinic. This could impact, he stated, on the commercial visibility of the business. He suggested limiting the number of units to four. He admitted in cross examination that the proposal conformed generally with the Official Plan, and that his concerns related to the three storey height proposed on the Woodroffe frontage and that the massing did not fit with the Woodroffe streetscape. Mr. Wright agreed with the use as a planned unit development. The hope - 6 - PL080465 of his client, he stated, was to flip the proposed access from the north to the south where it would provide further open area along the southerly property line. Carole Vranjes testified that the change in lot area represented a change of 25% that was not minor.

The Board has carefully considered the four tests for this variance. The designation in the Official Plan of general urban area generally permits the proposed use. Design considerations of the Official Plan as to massing, scale, front yard setback, access must be exercised under the Planning Act where authorized. Such matters do not require variances under section 45 of the Planning Act since there is compliance of those matters with the zoning By-law. However such matters may be raised in the site plan control application under section 41 of the Planning Act. Section 41 does not regulate height or density but does allow consideration of massing, design and access. Section 41(4) refers to the location of all buildings, to the massing and conceptual design of the proposed building and to the relationship of the proposed building to adjacent buildings and streets. Section 41(7)(a)2 refers to access. This variance as to lot area ,the Board finds complies with the general intent of the Official Plan and adopts the Harrison testimony in that respect. Mr. Wright’s concerns with design must be considered in the site plan control process.

The intent of the zoning by-law is that medium density is to be encouraged. The proposal for 5 units on a site of approximately one third of an acre represents clearly a medium density calculation according to planner Harrison. This was not contested. This reference to the “purpose of the by-law“ assists with regard to intent. The actions of the City in reducing lot area in the new zoning by-law and the flexibility of that requirement at 300 Woodroffe, albeit for 6 units and a larger lot area, reinforces the planning evidence in this hearing. The Board finds that this variance meets the general intent of Zoning By-law 93-98 and the new zoning in By-law 2008-250.

The evidence of both planners is that the use-planned unit development is appropriate. The Board’s finding is that the upscale development proposed is desirable and appropriate having regard to similar developments at 316 and 300 Woodroffe and with consideration of the current state of the subject property.

The relief sought for this variance is minor in the circumstances. The jurisdiction of the Committee of Adjustment and of this Board on appeal is to consider the - 7 - PL080465 application in its circumstances. There is no cut off by numbers or percentages. The impact of this variance on the objector is minimal. The effect on visibility of the business as alleged is not proven. There are two prominent Denture Clinic signs - one on the building and the other free standing in the front yard. The Board’s finding is that visibility of the business is not obscured in any substantial way. The Board finds the relief sought for this variance to be minor. Variance as to lot area is authorized and the Appeal granted in part.

Variance – reduction in the northerly and southerly side yards from 7.5 metres to 1.2 metres

The Micuccis to the north share the northerly property line and no longer object. They will have the benefit of setback at street front now to include the driveway access. The side yard setback reduction is necessary for the rear units. The Board finds the relief sought there to be properly planned in terms of the general intent of the Official Plan and Zoning By-law, the desirability and being minor for the side yard setback reduction on the north. The nature of the side yard setback restriction is that the requirement is 1.2 metres for the first 18 metres measured from the street and then 7.5 metres. There are no privacy issues raised on the north where a similar backyard development exists.

The circumstances for the south side yard are different. The existing building of the objector is 1.2 metres from the lot line at the building’s closest point with windows not apparent in buildings facing from the north to the north property line. The Board views the intent of the by-law with an increased side yard not at the street but to the rear -18 metres from the street line, to reflect a use in what normally is a rear yard. The reduction in southerly side yard, when considering impact, is viewed from the plans as follows:

The substantial reduction is in respect of the rear townhouses which now are proposed to parallel the portion of the objector’s property that is a paved rear yard parking area. There is also a smaller side yard reduction for a balcony. The balcony is just beyond the 18-metre measurement from the street but is directly in front of the windows facing it from the objector’s building. It is difficult to see - 8 - PL080465

impact on the objector’s parking area even with the thin landscaped strip, storage unit and picnic table in the parking lot area. There is some impact on views from the windows. Some impact must be expected in this type of urbanized area.

The Board has come to the conclusion that it is premature to deal finally with the southerly side yard setback reduction until the site plans have been processed by the City and review has taken place to determine whether the south side yard separation distance can be increased and the balcony removed or amended. The Plans should be more detailed as to any landscaping buffering or other means of buffering. That consideration is to include possible movement of the mature spruce trees referred to by the objector. The Board also seeks to have the status of the objector’s use clarified. It was described by witness Harrison as a non conforming use. Mr. Wright described it as denture clinic but with a second floor residential use. There is a distinction. Non conforming uses under section 34(9) of the Planning Act are protected as long as they remain in actual use. They may lapse and clearly as not planned for under current zoning may die out. Non conforming uses normally cannot claim planning benefits to the degree or in like manner as conforming uses.

The Board may be spoken to by both parties together at the conclusion of the site plan control process. The Board understands Ottawa to provide notification of site plan control applications and requests that it do so to the objector and her planner with the opportunity to make representations. The final Board order is withheld.

“N.C. Jackson”

N.C. JACKSON MEMBER