On March 8, 2013 the Ontario Municipal Board issued its decision on a motion for directions in Greater Ottawa Home Builder’s Association v. Ottawa. This was a broad motion brought by a group of developers seeking a determination from the Board that Bylaw 2012-147 was outside of the jurisdiction of the City of Ottawa pursuant the Planning Act. What makes this an important case is that there is no real jurisprudence on these issues, this is the first, and there are bylaws like this across Ontario. The main question was how broad zoning can be under the rubric of character.
Bylaw 2012-147 is an amendment to the Zoning Bylaw, which was designed to put limits on infill projects in the urban core of Ottawa, as shown on the map here. Those limits included:
A new definition of grade, based on the pre-alteration site grades, and a requirement to confirm that grade is built as approved;
A limit on the height and square footage of rooftop projection used to access roof top patios;
A calculation of front-yard setback based on the average of the adjacent homes;
Permission for front-yard projections to be the average of those of the adjacent homes;
Permission to build without offering on-site parking;
Permission for front-yard parking (new infill only and with limits on hard surface area);
Restrictions on hard surface area in the front-yard; and
Restrictions on the provision of front garages.
The Bylaw also purported to only apply to new development, not renovations on existing development.
The essence of the motion was that the Planning Act does not allow the City to put these restrictions on properties for a number of reasons. The Board member who heard the motion, M.C. Denhez, grouped the complaints about the Bylaw into three groups:
(1) Zoning methodology complaints:
(a) the Planning Act does not allow a bylaw that only applies to new homes; and
(b) the Act does not allow the use of surrounding averages for standards;
(2) Subject matter complaints:
(a) there is no authority for the zoning dictating the location of parking spaces;
(b) there is no authority for zoning to dictate architectural features such as:
(iii) windows, and
(c) zoning cannot govern parking spaces;
(d) zoning cannot govern hard-surfacing; and
(e) zoning cannot govern landscaping;
(3) An intent complaint that aesthetics was not a permitted consideration in passing zoning bylaws.
The main argument of the developers was that design was removed from zoning powers in Ontario in 1983 and design was only re-introduced in section 41 of the Act, dealing with Site Plan Control. Thus, the legislatures intention was to remove any design considerations from zoning.
The Board denied the majority of the motion, finding that planning is a continuing whose main legislative intent is predictability. The only issue the Board was not satisfied with was that there was authority to require that a door have direct access to the dwelling. The Board found there was not and removed those provisions from the bylaw. The issue of whether the City can regulate the minimum amount of glazing on ground floor façades was sent to a full hearing. Finally, there were three issues that the Board felt could be worded to be valid but were not so worded now:
The direction of carports and garage doors.
Setbacks specific to the relation of a garage to the main façade.
Garage door width.
The Board gave the City five months to try those again.
Character – the Authority Argument
Everyone knows that zoning is only permitted to the extent authorized in the Planning Act. The main issue here was whether the bylaw was valid as the ” regulating the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures” under section 34(1)(4), or was it trying to do things that could only be done through section 41 of the Act, dealing with Site Plan Control?
As I tweeted at the time:
#OMB to determine scope of “character” in 31(1)(4) of the Planning Act
— Scott McAnsh (@SMcAnsh) October 29, 2012
M.C. Denhez provides a good general history of land use planning, if you are looking for such a thing, as a background to his conclusions. The competition between “character” and “design” at the core of this appeal is a difficult statutory interpretation problem and I think the Board did very well with the issues presented to it. The main conclusion is that character must be referenced to its surroundings. That is, unlike design, character is how something fits in a larger context. Colourfully summarized at para. 76: “one does not usually ask whether a subdivision in a cow pasture is ‘in character'”. This led to the conclusion that where there is no street scape pattern there is no character.
Overall, the Board provided a fair and well-reasoned interpretation of a very difficultly worded piece of legislation. The City has 5 months, or until August 8, 2013, to put a new version of the bylaw together for another round of appeals. M.C. Denhez is seized with any further action on this file.
I know I’ll be watching how this goes.
By: Scott McAnsh