Homeowner fighting condo development with challenge

An Ottawa homeowner trying to prevent a condo development in his neighbourhood is challenging provisions in the Planning Act that allow developers to turn single-story houses into three-storey apartment complexes as unconstitutional.

Dr. Hadi Salmasian argues that the use of applications for minor variances to zoning bylaws is unconstitutional, violating the doctrine of vagueness and his s. 15 Charter rights guaranteeing equality under the law.

These minor variances are being systematically abused and used as a “development tool,” says Denis Rancourt, co-ordinator of the self-represented litigants working group at the Ontario Civil Liberties Association. The OCLA is assisting Salmasian with legal research and litigation logistic support.

In Salmasian’s notice of constitutional question, he states the development is “at odds with the dominant character of the neighbourhood and of the city block, which consists of one- and two-storey, detached single-family dwellings.”

Salmasian was advised by the OCLA that he could challenge the minor variance provision on constitutional grounds.

“This is how neighbourhoods get devastated by developers . . . through this minor variance abuse,” Rancourt says.

Rancourt says Ontario’s minor variance provisions don’t define “minor,” which allows the committee “free reign” to determine what is minor.

Rancourt says developers use the minor variance provision as a “planning tool” to make major changes to dwellings, which in turn impose major changes to the character of the neighbourhood.

The developer, 170 Preston LTD., applied to Ottawa’s Committee of Adjustments to demolish a one-storey home and build a three-storey, three-unit apartment.

Salmasian filed a notice of constitutional question, which was heard June 6, and the committee dismissed Salmasian’s objections and refused to hear the constitutional question, authorizing the minor variance application.

Salmasian appealed to the Local Planning Appeal Tribunal and is arguing that the tribunal lacks jurisdiction over the matter. His case will be heard by the tribunal on Oct. 3.

The variances sought by 170 Preston LTD. were to a bylaw meant to prevent properties from being used as rooming houses.

170 Preston LTD. is represented by Emma Blanchard of Borden Ladner Gervais LLP. In a letter to the Local Planning Appeal Tribunal, Blanchard states that the constitutional issues are beyond the tribunal’s jurisdiction and that at the committee stage, counsel for the City of Ottawa advised the same.

“Our principle concern is that time not be lost,” Blanchard wrote. “The Appellant, in his Notice of Appeal, focuses on constitutional, Charter and jurisdictional arguments. There are no issues raised relating to the minor nature of the variance sought or to the general intent and purpose of the Zoning By-law and official plan.

“We ask that the LPAT consider a direction that the hearing shall be restricted to the issue of appropriate development.” Blanchard continues to request that constitutional appeals not be heard by the tribunal and be directed to the Superior Court.

Blanchard did not respond to a request for comment.

Laws that are vague are invalid because they fail to provide citizens with fair notice and increase the state’s discretionary power, wrote Marc Ribeiro in “The vagueness doctrine in Canadian constitutional law: a balanced approach.”

“If you’re going to start constraining people’s rights, then you have to spell out under what condition you can do that,” says Rancourt.

Michael Fenrick, a partner at Paliare Roland Rosenberg Rothstein LLP, says the Constitution “does not protect a right not [to] have development in your backyard.”

Fenrick says applications for minor variances are common.

“Variances are frequently requested by homeowners and developers. If an interested person, like a neighbour, is upset about an administrative decision, he or she has the option to go to court to have the decision reviewed by a judge who will apply accepted principles and make a determination as to whether the requested variance satisfies the legal test for a minor variance,” he says.

“Lawyers and their clients should expect that neighbours and others may object to minor variance applications, and ensure that any application they make falls within the accepted legal standard or risk expensive litigation through multiple administrative decision-makers and ultimately in the courts.”

Fenrick says that, in his opinion, the constitutional arguments in the case, as he reads them, may be “doomed to fail, quite apart from the jurisdictional issues.”

“The starting premise is that courts are quite rightly very reluctant to recognize Charter rights based on property interests,” he says.

“The crux of the argument appears to be that Dr. Salmasian is affected as a property owner in a neighbourhood where development is occurring.

“I do not think if this matter comes before a court that a judge will look favourably on such a rights claim.”

— With files from Gabrielle Giroday