Witness to an OMB hearing: part II

By Tom Tanner

Editor’s note: This is the second of a two-part article on a citizen’s account of the process, procedures and arguments at the February 13 to 15 Ontario Municipal Board hearing into 174 Glebe Avenue.

Last month I described my reaction to the Ontario Municipal Board hearing held to consider the zoning change requested for 174 Glebe Avenue. Over three days an enormous amount of detail was reviewed. The current account attempts to show the main arguments presented by key witnesses. The hearing was chaired by Mr. Denhez, OMB member and adjudicator.

THE PLAYERS

Let me re-introduce you to the players: The Ontario Municipal Board Member Mr. Marc Denhez, once lived on Third Avenue and now lives in Kanata. The owner of 174 Glebe Avenue, also the developer, is Mario Staltari. Counsel for the developer is Michael Polowin, a partner at Gowlings. Tim Marc is the lawyer for the City. The developer called three witnesses whereas the City called one.  Guy Giguère, a lawyer who lives at 173 Glebe Avenue, across from the subject property, requested party status so that he could cross-examine and call witnesses. Mr. Polowin disputed this, the City supported Mr. Giguère, and after some dramatic interchange, Mr. Denhez admitted Guy Giguère as a “party” but warned that the hearing deals in fact, not opinion. Mr. Giguère called two witnesses: Jamie Worling, resident of 171 Glebe Avenue, and Lyne Lalonde of 178 Glebe Avenue.  The gallery ranged from 7 to 14 spectators over the three days.

After procedural debate, the first witness called was Brian Casagrande, Senior Planner and Manager, Development Planning for Fotenn Planning and Urban Design. He had written the planning rationale for the developer’s application and had qualifications to be an “expert witness.” Mr. Casagrande first showed an illustration of what could be built under the existing zoning – basically a lifeless box, it met the 11-metre height limit. Then he showed the proposed building, featuring architectural details found in the neighbourhood. It is three full storeys with a partial fourth storey set back to reduce apparent mass. Most of the building is at the setback required by zoning, but balconies protrude. Balconies are “permitted projections.”

PROPOSALS FOR 174 GLEBE

This is the fourth development proposal by the present owner. In 2004, a minor variance was requested to increase the resident capacity of the existing structure from 47 to 58. This involved enclosing part of the front veranda to increase the seating capacity of the dining room. Residents objected and the variance was not granted. Originally a retirement residence, 174 Glebe was most recently operated as a “domiciliary hostel” that was closed because the City of Ottawa withdrew it’s subsidy for residents. The owner then submitted a proposal to convert the existing building to five townhouses while maintaining the existing driveway. Deemed to be financially unfeasible, the application was withdrawn.

Two new semi-detached houses with driveways that sloped downward from the street at a 12 per cent grade were the next proposal. Each of the four units had a double garage. The Committee of Adjustment refused this proposal because of the driveways, storm drainage issues and garage doors facing the street.

Then the owner’s consultants met with city staff and proposed the current four- or five-storey apartment building appropriately designed for the site. John Smit, a senior planner, chose the exterior design proposal that was displayed at the hearing.

RED LIGHT, GREEN LIGHT OR ORANGE?

Mr. Denhez, as adjudicator, explained that the appeal could be resolved in one of three ways: red light – the proposal is rejected; green light – the proposal is approved; or orange light – the proposal is approved with adjustments. He questioned whether the proposal before the Board was a simple red-light or green-light case, or might there be some orange light situation that could be more satisfactory to all parties?

Emails with city planners were introduced to show that city staff failed to raise a red flag about zoning concerns. For several months, city support was assumed; then in late January 2012, the City indicated that it would support only a three-storey building. The email trail was followed until August 23, when the Planning Committee turned down the application. The appeal to the OMB was filed even before the Planning Committee ruling because city staff said they did not support the requested change of zoning.

Near the end of the first day, Brian Casagrande stated in his summary that the proposed building represented good planning and would not have an “undue adverse impact” on the neighbourhood.

On the second day, when questioning Mr. Casagrande, the Chair noted that the present building “reads” as two-and-a-half storeys from the street, but from the back looks like a four-storey building with a two-storey “hat” [elevator shaft]. The envelope is two-and-a-half storeys at the front and a peak at the back of six storeys. Questions about the mass of the proposed building followed.

Then the Chair “put his cards on the table,” noting that the status quo is not tenable and this hearing must find some roadmap out of the current impasse. Four storeys at the front are troubling, but the back would be an improvement. “It concerns me that ultimately I might be selling everybody short if we accept or reject what is before me so far.”

Mr. Polowin, lawyer for the developer, then called John Smit to the stand. A planning manager for the City since 1985, Mr. Smit spoke rapidly and with assurance. The questioning focused on the difference between the personal opinion of a planner and the views put forth in planning department recommendations. Mr. Smit supported the developer’s proposal for 174 Glebe Avenue and had chosen ‘option two’ as best fitting the context. Questioning by Polowin and the Chair elicited that Mr. Smit was in full support of the developer’s proposal for 174 Glebe Avenue and would give it a green light.

Mr. Polowin then tried to establish that political interference was responsible for the Planning Department’s change of view from support to opposition. He asked who had pulled Counsellor Hume into this. A brief spat left the question hanging.

Vincent P. Colizza, the architect for the project, was the next witness. He was first retained in July 2010 to do measured drawings of the present building at 174 Glebe. Structural issues with the building quickly deemed conversion to individual units uneconomic. Mr. Colizza’s firm did not design the semi-detached houses rejected by the City. Under present zoning, the owner could build a four-storey box with 27,900 square feet of floor space. By contrast, the proposed building would yield 26,200 square feet, or 1,700 square feet less than the present entitlement. The design articulates the front and places the centre part back from the allowed setback. Mass has been moved towards the centre of the building. While balconies (allowed protrusions) will be close to the property line, their proximity still falls short of what is allowed. Economic viability dictates four floors in order to pay for amenities such as underground parking.

Melanie Knight, the city planner named on the sign outside 174 Glebe Avenue, took the stand near the end of day two. She made a technical presentation to show the context, illustrating how the proposed building would crowd the lot much more than was the neighbourhood norm. Since OMB hearings are about law and entitlement, she emphasized definitions. Before adjourning until 9:30 a.m. the next morning, the Chair asked if anyone would object if he went to Glebe Avenue to look at the property. No one had any objections.

On day three, Melanie Knight resumed testimony with a technical and dispassionate defence of the City’s position: compatibility must be considered, and the Official Plan provides criteria for compatibility. Prevailing patterns must be respected in the interior of stable low-rise neighbourhoods. Glebe-St. James United Church and the former Ottawa Ladies’ College have large lots fronting on three streets. The proposed building would be built on an interior lot with mass and setbacks (front and rear) which violated the prevailing pattern. It would fail the test of compatibility.

Citing his observations on visiting 174 Glebe Avenue the previous evening, the Chair listed eleven characteristics of the present building, suggesting that it has not resembled the rest of the zoning area since 1975. In conclusion he asked: “What do we do with this thing? I’m asking for help.”

NEIGHBOURHOOD WITNESSES

Guy Giguère, a lawyer living at 173 Glebe Avenue, across from the subject property, provided a letter from the Glebe Community Association (GCA). The Chairman took note that the GCA suggested that greater front setback is needed to maintain the alignment of buildings in that block of Glebe Avenue and that in exchange, it would accept less rear yard space. This opened the possibility of a compromise – to move the building 2.7 metres farther back from the street.

Present zoning allows buildings that are not in line with others on the block. Mr. Polowin asked Ms. Knight to choose between what is allowable and what is proposed. Ms. Knight replied that we are looking at compatibility, not design. Mr. Polowin then brought out the case of 316-324 Bruyère Street where Ms. Knight, the assigned planner, had recommended an increase in the height allowed by zoning. This was not a comparable application, she maintained, as it had parkland on the corner and across the road and existed in a different context. Mr. Polowin referred to Ms. Knight as the ‘one planner standing.’

Mr. Polowin then asked if Councillor Hume or the ward councillor, Mr. Chernushenko, had played a role in influencing Ms. Knight’s position. Her answer was “no.” He then asked if Councillor Hume’s position had influenced the Planning Committee. She answered: “I’m not high enough on the totem pole to be meeting with the chair of the Planning Committee.”

The next witness was Jamie Worling, who lives at 171 Glebe Avenue. He is an architect by training but is employed as an information technology specialist. Speaking as a representative of the nearby residents, he said they were not opposed to redevelopment and would accept some increase in density, but they were opposed to the mass and height of the proposal. The proposed building was out-of-scale for the site. The next witness, Lyne Lalonde of 178 Glebe Avenue immediately west of the subject property, a technical writer who has studied horticulture, industrial design and architecture, held that the main issue was sheer size. Mr. Polowin challenged Ms. Lalonde to make choices between a high-end condo and the building with 47 residents. No problem. But when he challenged her to choose between the building that can be built under the existing zoning and the carefully designed proposal, she answered: “Can I pick a smaller condo?” The issue was clearly drawn.

CLOSING ARGUMENTS

In closing arguments, Mr. Polowin revisited issues raised earlier and referred to Whyte House, which used to stand on the Queen Elizabeth Driveway and that burned while empty, awaiting City approval of redevelopment plans. Mr. Polowin wanted the Chair to encourage the City to allow demolition of 174 Glebe Avenue, so that it would not meet the same fate. In the close environment of the Glebe, fire is a threat. The setback of the proposed building is allowed by the 2008 bylaw that harmonized all the zoning in the amalgamated City of Ottawa. He expressed appreciation for Melanie Knight’s position, but pointed out that she was the most junior professional before the hearing and that the more senior professionals agreed that the proposal was compatible. Mr. Smit felt the proposal should be given the green light today. Mr. Polowin went on to point out that Ms. Knight’s boss’s boss accepted the proposal until politicians took an interest. At this point the Chairman interrupted to say: “No decision will be predicated on political interference.”

In conclusion, Mr. Polowin asserted that the only two things in dispute were minor variances. Do these constitute “undue adverse impacts”? The only adversity is “bigger.” Do we want bigger and better, or bigger and worse? Mr. Denhez, Chair, said the existing building on Glebe Avenue was something he had never seen before, and when he looked around, there was nothing in sight that had an apartment configuration and nothing as high as the proposed building. “So, what do I do?” Mr. Polowin replied that it was not a question of matching the neighbourhood – that ship had sailed in 1975.

Tim Marc, the City’s lawyer, summed up by stressing the importance of compatibility with the neighbourhood, commending the approach taken by Ms. Knight. The City’s submission aimed to work within the boundaries of the present zoning. Guy Giguère concluded that, from a neighbourhood perspective, the proposed building did not make sense. Matching the alignment of other buildings would be seen as respectful. As it was, it was too big, too tall and did not fit the pattern on the street.

Mr. Denhez asked Mr. Giguère “what really should happen across the street?” His answer was: three storeys at front, and aligned with the porches of the neighbouring houses. He deemed the existing building to be a better fit than the envelope allowed by present zoning or the proposal. One should compare the new building’s mass with what is there and fit it to the character of the street.

Then, to everyone’s surprise, one of the architect’s staff brought in large illustrations showing the proposed building in Google Street View, as seen from east and west. Mr. Marc said city technical experts would review the illustrations for accuracy.  How these high-tech illustrations will affect the decision is anyone’s guess.

Mr. Polowin ended his final questions at 6:04 p.m. and the Chair announced he would take the case under advisement. He said we were dealing with an unusual situation –unusual since 1975. He promised to have the decision available as soon as possible, as the building should not remain vacant.

AT A GLANCE

Entitlement and economics battled size and situation. Mass and setbacks were arrayed against neighbourhood compatibility. A senior planner contradicted a junior planner. Allegations of political interference hung in the room. The OMB member and adjudicator listened with care and probed for compromise. The process was fascinating. The outcome will mark Glebe Avenue for decades.

Many documents may be viewed at: http://goo.gl/6NQx1

Tom Tanner has been a Glebe Avenue resident for 35 years.