Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 17, 2021

CASE NO(S).: PL210130

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Yuri Levin

Subject: Consent

Property Address/Description: 160 MacDonnell Street

Municipality: City of Kingston

Municipal File No.: D10-040-2020

LPAT Case No.: PL210130

LPAT File No.: PL210130

LPAT Case Name: Levin v. Kingston (City)

Heard: June 28, 2021 by video hearing

APPEARANCES:

Parties

Yuri Levin

Counsel

Michael Polowin Carolina Campos

Parties

City of Kingston

Counsel

Andrew Reeson Jenna Morley

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

1Yuri Levin (“Applicant/Appellant”), of 160 MacDonnell Street (“Subject Property”) in the City of Kingston (“City”) has made an Application for consent to sever the Subject Property into two lots. The Committee of Adjustment (“COA”) denied the Application on January 18, 2021 (“Refusal”).

2The Applicant appealed the COA’s Refusal on February 8, 2021.

3The proposed severance under the Application was for the Subject Property in a residential area with an existing frontage of 15.8 metres (“m”) and an area of 1109.8 square metres (“sq m”) to be severed into two lots of 7.9 m frontage each. The retained lot having an area of 567.5 sq m while the severed lot will have an area of 542.3 sq m. Each parcel is proposed to have a single-family dwelling and a second residential unit contained in the main building.

4The hearing proceeded with the first witness, Michael Keene being called by Mr. Polowin, counsel for the Applicant. Mr. Keene is a registered Land Use Planner and was qualified as such to give his expert opinion evidence. Counsel for the City, Mr. Reeson called city planner Tim Park, who was similarly qualified by the Tribunal to give opinion evidence in land use planning matters. Both experts were examined and cross-examined on the day. The Joint Document Book was marked as Exhibit 1 and the witness statement of Mr. Park was marked as Exhibit 2.

ISSUE

5The issue before the Tribunal is whether the severance of the Subject Property with the creation of two lots as applied for in the Consent to sever land Application meets the general requirements set out in the applicable Provincial Planning legislation and Municipal planning policies and the specific criteria of s. 51(24) of the Planning Act (“Act”) and represents good planning. The proposed severance must meet the requirements of the applicable policies of the applicable Official Plans and Zoning By-laws.

6The Tribunal shall also have regard to matters of provincial interest and to information and material that the COA considered in making its decision.

APPLICANT’S POSITION.

7Mr. Keene stated that the subject property has an area of approximately 0.11 hectares with 15.8 m of frontage along MacDonnell Street. The subject property is currently occupied by a one-storey single-detached dwelling (wood frame), and a one-storey detached accessory structure (garage). The subject property is accessed via an asphalt driveway from MacDonnell Street located to the south of the site. The subject property is located on the west side of MacDonnell Street between Johnson Street and Earl Street, in the City’s urban area. The neighbourhood is locally known as Sunnyside. The streets primarily follow a traditional grid pattern. The surrounding area is primarily characterized by residential use, with single-detached dwellings as the predominant built form. Residential building heights in this neighbourhood generally range from one to three storeys. The immediate vicinity of the subject site consists of:

a. West: Abutting, a 2-storey single detached dwelling (brick), a 1.5- storey single detached dwelling (stucco).

b. North: Abutting, a 1.5-storey single detached dwelling (brick)

c. East: across MacDonnell Street, a 1-storey single-detached dwelling (stucco).

iv. South: Abutting, a 2-storey single detached dwelling (brick).

8The consent application was presented at a meeting before the COA on January 18, 2021. In a report to the COA, dated January 18, 2021, City Staff recommended denial of the application for the following reasons: The proposed application does not conform to the Official Plan; and the dimensions and shapes of the proposed lots are not appropriate, the proposal does not conform to the City’s Official Plan as required under s. 51(24)(c) of the Act and would not result in appropriate dimensions and shapes of the proposed lots as required under s. 51(24)(f) of the Act.

9City staff stated the proposed lots are irregularly shaped in the context of the surrounding neighbourhood, as the frontages are not consistent with adjacent frontages, resulting in deep, narrow rectangular lots, and as such the proposal does not conform with s. 9.6.13.a and 9.6.13.b of the Official Plan. Staff added that the proposed development has the potential to destabilize the surrounding stable neighbourhood as this would be the first development with a lot frontage of less than 8.0 m that is on a local street within the immediate vicinity. Approval of a reduced lot frontage and resulting narrower building widths may set an undesirable precedent for the immediate area.

10Mr. Keene described the criteria in s. 51(24) of the Act:

In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality to, s. 51(24)(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in s. 2. His view is that the proposal has regard for matters of provincial interest found in s. 2 in that it: will not negatively impact natural, agricultural or cultural heritage resources;

a. represents orderly development on serviced lands with access to transit and public service facilities;

b. will contribute to the range of housing in Kingston in an appropriate built form which is compatible with the nature of development in the surrounding area; and

c. will consist of a design and site layout that is well-designed to facilitate micro-intensification and will not create challenges in terms of public health and safety.

11Mr. Keene took the Tribunal through several of the other s. 51(24) criteria, and of particular note is s. 51(24)(c), whether the plan conforms to the Official Plan and adjacent plans of subdivision, if any. He said the proposal conforms to the Official Plan. The lands are designated Residential in the Official Plan. Single detached dwellings are a permitted use within the Residential designation. His view is that the proposal conforms to policies in the Official Plan having to do with protecting stable neighbourhoods, meeting the functional needs of users, ensuring land use compatibility, and Council direction regarding consent applications.

12As regards s. 51(24)(d), the suitability of the land for the purposes for which it is to be subdivided. He stated the proposal represents an infill development which would see the construction of one additional single detached dwelling in a neighbourhood predominated by one and two-unit residential dwellings. The proposed severed and retained parcels meet all requirements of the City’s Zoning By-law and contain a sufficient building envelope to accommodate a single-detached dwelling within the required setbacks of the Zoning By-law, as demonstrated on the concept plan.

13The other criterion of note s. 51(24)(f), on the dimensions and shapes of the proposed lots, Mr. Keene opined that the severed and retained parcels meet all requirements of the City’s Zoning By-law. His view is the proposed lots are rectangular in shape, exceed the minimum lot area requirements of the Zoning By-law and are compatible with the general size and shape of lots in the surrounding area. The proposed lots maintain the existing lot fabric of the surrounding area and are consistent with the depths of adjacent lots. As shown on the concept plan, he said, the proposed lots contain a sufficient building envelope to accommodate the future development of single-detached dwellings, in compliance with the zoning applicable to the Subject Property.

14He stressed that there is no minimum lot frontage in the One-and Two-Family Dwelling (A) Zone. The A Zone is one of the longest-standing zones in the City. In his view, the absence of a minimum lot width provision is a reflection of the eclectic nature of the existing lot fabric in this area of the City. If the City felt frontage was a critical measure, they have had more than 40 years to introduce this provision. Furthermore, there are six (6) lots with frontages less than 8.0 m and sixteen (16) lots with frontages of 8 m – 10.99 m within two blocks of the Subject Property. Therefore, the proposed lots provide appropriate dimensions given the existing lot fabric in the surrounding area are rectangular in shape and in keeping with the nature of existing lots in the neighbourhood.

15It is Mr. Keene’s opinion that the proposed Consent has proper regard for the criteria found in s. 51(24) of the Act.

16With respect to the Provincial Policy Statement (“PPS”), he stated that it provides direction on matters of provincial interest related to land use planning and development. The policies relevant to the proposed consent are:

Section 1.1.1 Healthy, livable and safe communities are sustained by: (a) Promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

i. The proposal represents an infill development on an existing oversized lot which is currently connected to municipal services, accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons…

17The subject application will result in a total of two lots (one severed and one retained) that can accommodate the development of single-detached dwellings within an existing residential neighbourhood. The proposal will contribute to the City’s housing supply in a manner that is compatible with the established character of the area. The proposed consent will permit the micro-intensification of an existing oversized residential lot without the need for expansion of municipal services. The subject property is located within the urban boundary, the area intended to support the majority of the City’s growth and development. There will be no need to expand or extend current municipal services in order to service the subject site.

18On s. 1.1.3.3 of the PPS, Mr. Keene said, planning authorities shall identify appropriate locations and promote opportunities for transit-supportive development, accommodating a significant supply and range of housing options through intensification and redevelopment where this can be accommodated taking into account existing building stock or areas, including brownfield sites, and the availability of suitable existing or planned infrastructure and public service facilities required to accommodate projected needs. In his view, the proposed consent represents an appropriate form of micro-intensification and contributes to the range of housing options within the urban boundary. The subject site is within 100 m of a transit stop located at the intersection of Johnson Street and MacDonnell Street. Bus Route 12 and Express Routes 701/702 currently serve Johnson Street.

19Section 1.1.3.4 provides that appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety. Mr. Keene opined that the proposed consent will permit an infill development on an existing oversized residential lot in an efficient and compact site layout. No negative impacts to public health and safety are anticipated as a result of the proposed consent.

20It is Mr. Keene’s opinion that the proposed Consent is consistent with the PPS, 2020. The PPS supports residential intensification and an appropriate range of housing types and densities. The proposal will establish one new appropriately sized lot for low density residential use (i.e: single detached dwelling).

21The subject property is designated Residential in the City of Kingston’s Official Plan. This land use designation is intended for a broad range of residential uses including single-detached, semi-detached or duplex dwellings, townhouses, and apartments. In addition to the various forms of housing, community facilities such as schools and places of worship are also permitted. Small-scale, convenience commercial uses which support residential neighbourhoods and are compatible with the residential setting may also be permitted in the designation.

22Mr. Keene opined that the proposed consent is consistent with, and conforms to, the residential intensification policies of the Official Plan (Section 2.3.2) and the residential density targets in s. 2.4.4 and 2.4.5. The retained and severed lots will not have any negative impacts on the adjacent residential uses or the neighbourhood as a whole, as the lot is intended for a low-density residential use which is in keeping with the character of the neighbourhood and permitted uses in the Official Plan and Zoning By-law. Any new development is subject to requirements of the Zoning By-law.

23He emphasized that s. 2.6 of the Official Plan provides policy direction for the City’s stable neighbourhoods. Section 2.6.1 states: It is the intent of this Plan to promote development in areas where change is desired while protecting stable areas from incompatible development or types of development and rates of change that may be destabilizing. Further, s. 2.6.3 states: Stable areas will be protected from development that is not intended by this Plan and is not compatible with built heritage resources or with the prevailing pattern of development in terms of density, activity level, built form or type of use. Mr. Keene noted that the following types of intensification are generally considered appropriate within stable areas:

a) infill development that is limited and designed to complement the area’s existing built form, architectural and streetscape character, and level of activity. He said the proposed lots are intended to accommodate the future development of single-detached dwellings. The proposed use is permitted in the Residential designation and is compatible with the existing neighbourhood character, where single-detached dwellings are the prevailing built form. As demonstrated on the concept plan, the proposed lots contain a sufficient building envelope in accordance with the required provisions of the A zone. The proposal provides an appropriate form of micro-intensification, makes efficient use of an existing oversized lot, and contributes toward the City’s intensification targets outlined in s. 2.4.4.

24The consent application is subject to the following criteria for infill as outlined in s. 3.3.7 of the Official Plan, which applies to properties within the Residential designation: a) confirmation that adequate municipal services can be provided, b) demonstrated suitability of dwelling type, lot size, building height and massing, building materials, and exterior design. Mr. Keene’s view is that a single detached dwelling can be accommodated on the proposed lots and is a compatible use with the neighbourhood. The future development of the proposed lots will be subject to the provisions of the Zoning By-law. The lots exceed the minimum lot area requirements of the zoning by-law. The proposed lots provide similar lot depths to neighbouring properties and will integrate well within the existing lot fabric.

25Mr. Keene said s. 9.6.11 of the Official Plan states that the creation of new lots by consent must have regard to the matters under s. 51(24) of the Act and must meet the minimum lot area requirements in the Zoning By-law for lands located within the urban boundary. Additionally, s. 9.6.12 directs new residential development created by consent to be located within the urban boundary. His view is that the proposed consent is consistent with s. 9.6.11 and s. 9.6.12 as it is located within the urban boundary on a fully serviced lot and exceeds the minimum lot area requirement of the Zoning By-law.

26He stated that s. 9.6.13 provides the following applicable requirements for consents: s. 9.6.13(a) the lot frontage, depth and area of any lot created by consent (severed and retained parcel) must be appropriate for the use proposed for the lot, be in compliance with the provisions of the Zoning By-law and consistent, where possible, with adjacent lots. His opinion is that:

i) The severed and retained parcels exceed the minimum lot area requirements of the Zoning By-law and provide a similar lot depth to adjacent lots. While several other similar zones in the City contain minimum lot width provisions (A2, A3, A4, A5, etc.) there are no minimum frontage requirements in the One-and Two- Family (A) Zone. The absence of a minimum lot frontage provision in the A zone recognizes the eclectic nature of the lot fabric in this area of the City. The conceptual site plan illustrates that the proposed lots can adequately accommodate single-detached dwellings within the provisions of the Zoning By-law, without the need for any variance.

ii) Residential lots in the surrounding area provide a diverse assortment of frontages ranging from 6.52 m to 73.74 m. The severed and retained lots provide a lot frontage of 7.9 m in keeping with the eclectic nature of the existing lot fabric in the surrounding area.

iii) There are six lots in proximity to the subject site that contain frontages less than 8.0 m. These lots include 652 Johnson Street (7.62 m), 654 Johnson Street (7.62 m), 656 Johnson Street (7.62 m) and 660 Johnson Street (7.62 m), located within 74 m of the subject site, as well as 621 Johnson Street (6.52 m) and 629 Johnson Street (7.62 m), located approximately 190 m from the subject site.

iv) It should be acknowledged that the Official Plan does not provide any separate policies or criteria to distinguish between lot creation on local or arterial roads. As such, there are no policies in the Official Plan that differentiate between lot frontage requirements on local or arterial roads.

v) The proposed lots have direct frontage on a local road, which is well suited to safely accommodate narrow lots with additional entrances. The proposed lots provide a sufficient lot frontage, depth and area to accommodate the future development of low- density residential use (single-detached dwellings).

vi) Therefore, the proposal is consistent with s. 9.6.13.a.

27As regards s. 9.6.13(b), proposed severances that would result in irregularly shaped lots are to be avoided where possible. Mr. Keene notes that the dimensions and shapes of the proposed lots are rectangular and maintain a regular pattern consistent with the depths of adjacent lots along MacDonnell Street. For s. 9.6.13(c), consents may be granted only when each parcel of land has frontage and direct access from an assumed road, except for conservation lands such as those held by the Conservation Authority or a land trust that can be accessed through an easement or right-of-way on abutting lands. Mr Keene states that the severed and retained lots will have frontage on MacDonnell Street, an existing municipal road. The Official Plan does not provide policy direction to distinguish between lot creation on arterial and local roads.

28It is Mr. Keene’s opinion that the proposed Consent maintains the intent of the Official Plan. The consent to create one new residential lot is compatible with the character of the neighbourhood.

29Mr. Keene explained that the severed and retained parcels are zoned One-and-Two-Family Dwelling A Zone. The A Zone permits one-family dwellings and two-family dwellings. The future development of single-detached dwellings is permitted within the A Zone. The A Zone requires a minimum lot area of 370 sq m per dwelling unit. The severed and retained lots exceed the minimum lot area of the A zone, providing an area of 542.3 sq m and 567.5 sq m, respectively.

30There is no minimum frontage requirement in the A Zone. It should be noted that several other similar residential zones elsewhere in the City establish a minimum lot frontage provision, while the A Zone does not. This includes the One-Family Dwelling (A1) Zone, the One-Family Dwelling (A2) Zone, the One- Family Dwelling and Two-Family Dwelling (A3) Zone, the One-Family Dwelling and Two-Family Dwelling (A4) Zone, and the One-Family Dwelling and Two- Family Dwelling (A5) Zone. The minimum lot width provisions included in these zones is reflective of the existing lot fabric in the surrounding neighbourhood. The A Zone is one of the longest standing zones in the City. The absence of a minimum lot frontage requirement is reflective of the eclectic nature of lot frontages in the City’s existing neighborhoods within the A Zone.

31The proposed severed and retained lot contain a sufficient area to accommodate a building envelope for a single-detached dwelling, within the required setbacks of the A Zone. Any future development on the severed and retained parcel will be required to be constructed in compliance with the provisions of the Zoning By-law.

32It is Mr. Keene’s opinion that the proposed consent meets the requirements of the Zoning By-law. The consent to create one new residential lot in the serviced area will not change the intended single detached residential use and character of the surrounding neighbourhood.

Comparable COA Approval.

33The subject application in Mr. Keene’s view is consistent with and similar to previous applications approved by the COA, including File D10-204-2015 relating to 37 Ellerbeck Street.

34The application for consent relating to 37 Ellerbeck Street proposed to sever a 385.75 sq m parcel with 7.9 m of frontage and retain a 385.75 sq m parcel with 7.9 m of frontage.

35Application D10-204-2015 was provisionally approved by the COA on November 23, 2015. The decision was based on these reasons: viz. PPS policy directions; consistency with the City’s residential intensification policies (s. 2.3.2, s. 2.4.3(a) and s. 2.4.5); consistency with infill policies of the OP (s. 3.3.7); within the urban boundary and consistent with OP s. 9.6.12; consistency with OP s. 9.6.13; larger lots have led to severances; the severed and retained lots of 7.9 m frontages and areas of 385.75 sq m are in keeping with the existing lot fabric and minimum requirements of the A Zone and the 3.56 m shared driveway is consistent with similar properties in the neighbourhood.

36Mr. Keene concluded that the subject application represents an appropriate use of land within the City’s Urban Boundary. The application for consent is required to permit minor infill development on an existing, oversized urban lot in the City’s serviced area. The consent has proper regard for the criteria found in s. 51(24) of the Act. The proposed retained and severed lots meet all of the requirements of the Zoning By-law. He opined that the proposed consent represents good planning in that it is consistent with the policy direction provided in both the PPS and the Official Plan. The proposal will provide for an appropriate infill development that makes efficient use of available municipal services and will result in a lot fabric which is consistent and compatible with the eclectic neighbourhood character.

37In Mr. Keene’s opinion the Tribunal should approve the consent application subject to the conditions he proposed.

CITY’S POSITION

38Tim Park on behalf of the City stated that the Subject Property is situated on the west side of MacDonnell Street mid-block between Johnson Street (to the north) and Earl Street (to the south). The Subject Property is developed with an existing single detached dwelling. The properties in the surrounding area are primarily single detached dwellings ranging in height between one and two storeys.

39The Subject Property is generally rectangular in shape with a total lot area of 1,109.8 sq m and a lot frontage of 15.8 m. At its deepest point, the depth of the Subject Property is 73.9 m from the front lot line to the rear lot line, consistent with the lot depth of the neighbouring property to the north and the three neighbouring properties to the south.

40The Subject Property is designated “Residential” in the Official Plan and is located in a “Housing District” pursuant to Schedule 2 of the Official Plan. The Subject Property is zoned “A” in Zoning By-Law No. 8499. As the Subject Property was deemed to be zone compliant and no minor variances were requested, the Application was originally processed as a delegated authority consent application in accordance with City of Kingston By-law Number 2006-75, “A By-law to Delegate Various Planning Approvals to Staff and to Adopt Certain Procedures for the Processing of Planning Applications Subject to Delegated Authority”, as amended (the “Delegated Authority By-law”).

41The Application was submitted by the Applicant, on September 23, 2020, and was deemed complete on September 29, 2020. During the public notification period for the delegated authority consent, the City received public comments opposing the Application. In accordance with the terms of the Delegated Authority By-law, the Director of Planning Services then referred the Application to the COA for a hearing.

42The Application proposes to sever the Subject Property into two parcels, each having a proposed frontage of 7.9 m, with the retained lot (to the south) having a lot area of 567.5 sq m and the severed lot (to the north) having a lot area of 542.3 sq m . The Applicant proposes to develop a single detached dwelling with an attached second residential unit on each lot, for a total of four units on the two lots. The Application, as submitted, appears to be compliant with the Zoning By-law.

43Notice of the Application was provided in accordance with the Act. The City received a number of oral and written comments from the public opposing the Application. The comments generally expressed concern with the incompatibility of the proposed lots relative to the surrounding neighbourhood.

44City staff prepared Report Number COA-21-007 (the “Staff Report”) to be considered by the COA on January 18, 2021. The Staff Report assessed the Application against the criteria specified in s. 51(24) of the Act. The Staff Report contained a recommendation to deny the Application on the basis that (1) the Application did not conform to the Official Plan, and (2) the dimensions of the proposed lots were not appropriate.

45Having regard to the criteria specified in s. 51(24) of the Act, it is Mr. Park’s opinion that the Application: does not conform to the provisions of the Official Plan related to (i) the protection of stable areas, and (ii) consistency of lot frontage, depth and area with adjacent lots; and would result in lots having inappropriate dimensions.

46Mr. Park stated that pursuant to s. 53(12) of the Act, in determining whether a provisional consent is to be given, the COA shall have regard to the matters under s. 51(24) of the Act, including: (1) whether the proposal conforms to the official plan, as specified in s. 51(24)(c) of the Act, and (2) the dimensions and shapes of the proposed lots, as specified in s. 51(24)(f) of the Act.

47The Subject Property, he explained, is within a Housing District, as shown on Schedule 2 of the Official Plan. Section 2.6 of the Official Plan states that Housing Districts are planned to remain stable. A stated goal of s. 2.6 is to maintain or improve the City’s quality of life by having a pattern of cohesive neighbourhoods and districts, as well as to manage the degree of change that is warranted in stable areas to achieve compatible development and land use. Section 2.6.1 of the Official Plan states that it is the intent of the Official Plan to promote development in areas where change is desired while protecting stable areas from incompatible development or types of development and rates of change that may be destabilizing. Pursuant to s. 2.6.3(a) of the Official Plan, infill development is generally considered appropriate within stable areas, provided it is limited and designed to complement the area’s existing built form, architectural and streetscape character, and level of activity.

48Mr. Park opined that the area surrounding the Subject Property is a stable residential area that is not undergoing significant intensification. He reviewed data from the City’s Geographic Information System (“GIS”) database, prepared by Alexandra Dowker, a GIS Data Management Coordinator with the City’s Planning Services Department, and determined that, between January 2010 and June 2021, only six lots within 500 m of the Subject Property have been severed. In his opinion, this is consistent with his characterization of the area surrounding the Subject Property as a stable residential area that is not undergoing significant intensification.

49Mr. Park stated that the Application proposes two lots, each having a frontage of 7.9 m. The average frontage of the nearby properties municipally known as 128-172 and 135-173 MacDonnell Street, as shown on Exhibit F of the Staff Report (the “Nearby Properties”), is approximately 13.15 m. The reduced frontage of the proposed lots, he explained, is a significant departure from the consistent lot fabric of the Nearby Properties and has the potential to destabilize the surrounding stable area and set an undesirable precedent.

50Mr. Park opined that the Application does not conform to the provisions of s. 2.6 of the Official Plan, as the reduced frontage of the proposed lots would disrupt the existing streetscape and threaten the stability of this Housing District, which has remained stable and is expected to remain so during the lifetime of the Official Plan. Section 9.6.13 of the Official Plan outlines the City’s criteria for consent approval. Section 9.6.13 states, in part: The creation of individual parcels of land by way of consent are subject to the following criteria:

a. the lot frontage, depth and area of any lot created by consent (severed and retained parcel) must be appropriate for the use proposed for the lot, be in compliance with the provisions of the Zoning By-law and consistent, where possible, with adjacent lots;

51In his opinion, the Application does not conform to s. 9.6.13(a) of the Official Plan, as the lot frontage of the proposed lots would not be consistent with the Nearby Properties. The average frontage of the Nearby Properties is approximately 13.15 m. The proposed lots would have a frontage of 7.9 m each, which is approximately 40% smaller than the average lot frontage of the Nearby Properties. The properties directly abutting the Subject Property have frontages of 17.4 m and 11.5 m, respectively. The proposed lots would, therefore, be 31.3% and 54.6% thinner than the abutting properties. This discrepancy creates the appearance of irregularity and would negatively impact the streetscape of MacDonnell Street. It is Mr. Park’s opinion that the Application does not conform to s. 2.6 and s. 9.6.13(a) of the Official Plan.

52Pursuant to s. 51(24)(f) of the Act, in considering a consent application, the COA must have regard to the dimensions and shapes of resulting lots. Mr. Park said that while the Application proposes two rectangular lots, the dimensions of those lots will deviate significantly from those in the surrounding neighbourhood. Of the Nearby Properties, only four properties have a frontage of less than 11 m. The smallest frontage among these properties is 9.7 m. If the Subject Property was situated between, or abutted, one or more of these properties, the sudden change in lot frontage would be less dramatic and would have less of an impact on the streetscape of MacDonnell Street. Despite this, the frontage of the proposed lots would still be approximately 18.6% smaller than the thinnest street frontage of the Nearby Properties.

53The street frontage map attached as Exhibit F of the Staff Report includes a number of properties that front onto Johnson Street, an arterial street. Most of the properties on Johnson Street (excluding the apartment complex between MacDonnell Street and Toronto Street) have thinner lots than those along MacDonnell Street, Toronto Street or Napier Street, all of which are local streets. The thinnest of these rectangular lots is approximately 7.6 m wide. These properties are located on or near the corner of the block and have a rear yard lane, which provides an area for the functional needs of the users of these lots (i.e. parking, garbage storage, rear yard access, etc.). Mr. Park’s view is that these properties are not comparable to the Subject Property and should not be considered when assessing the lot fabric of the neighbourhood, as the Subject Property: (1) is located on a local street, not an arterial street, (2) is located midblock, as opposed to on or near the corner of the block, (3) does not have a rear access lane to increase site functionality, and (4) is located between two lots that have wider lot widths than most of the properties on Johnson Street.

54He stated that, having regard to s. 51(24)(f) of the Act, the Application would result in lots having inappropriate dimensions relative to the surrounding neighbourhood. In summary, it is Mr. Park’s opinion that the Application, as proposed, does not represent good land use planning due to lack of conformity with s. 2.6 and s. 9.6.13(a) of the Official Plan, and, having regard to section 51(24) of the Act, the inappropriateness of the proposed lot dimensions.

55Mr. Park stressed that while the Application represents an opportunity to develop an infill property within the urban boundary, the proposed frontages of the lots will be out of character with the surrounding stable Housing District and adjacent lots situated on a local street. The Application would result in proposed lots having a frontage of approximately 7.9 m, which is approximately 40% less than the average frontage of the Nearby Properties. Based on the foregoing, the proposed development has the potential to destabilize the surrounding stable neighbourhood and disrupt the street pattern in terms of form and size. Mr. Park concluded that approval of the Application is not appropriate for the Subject Property and may set an undesirable precedent for the area. He requested that the appeal be dismissed and the consent to sever application be denied by the Tribunal.

EVIDENCE AND ANALYSIS

56Both parties had different views on whether the proposed severance conforms to the Official Plan, as required by s. 51(24)(c) of the Act and whether the proposed severance have appropriate regard for the dimensions and shapes of the proposed lots, as required by s. 51(24)(f) of the Act.

57The Applicant argues that any future development and resulting built form is outside the scope of this appeal and therefore cannot be considered by this Tribunal. The Tribunal is mindful that only the consent application is before the Tribunal. The Applicant has supported the application with a concept plan and the Applicant’s planner had variously referred to the desirability of the development and the building envelop as well as the form that the building may take i.e. a one storey to three storey building. In this instance, it is a matter of simple logic that when a lot of 15.8 m is split into two lots of equal frontages of 7.9 m, then all things being equal, the width of the building on each lot that can be built will be correspondingly smaller. In the concept plan, the building envelope’s width is described as 4.9 m. The Tribunal can in this case assume that with the narrower frontages, the width of the buildings will be narrow as well. The Tribunal need not pay special regard to the built form or design to come to that conclusion. The Tribunal notes that there is no requirement to proceed by plan of subdivision as not more than three lots are created (s. 9.6.1 of the Official Plan).

58The expert opinion evidence of Mr. Keene and Mr. Park are contradictory on the issues critical to this appeal that is, according to the parties, conformity with the Official Plan and regard for the lot dimensions and shape criterion. The Tribunal is persuaded by and accepts the evidence of Mr. Keene.

59Mr. Keene has opined that the application is consistent with the PPS and Mr. Park did not seriously dispute that opinion. As for compliance with s. 51(24)(c) of the Act, Mr. Park took particular issue that the Official Plan is not complied with. The Tribunal finds that the application is consistent with the PPS (s. 1.1.1; s.1.1.3.3; and s. 1.1.3.4) and has regard to s. 2 of the Act in particular 2(h) the orderly development of safe and healthy communities and 2(j) the adequate provision of a full range of housing. Compliance of the OP and the criteria in s. 51(24) are detailed in the following paragraphs of this decision.

60The Tribunal agrees with Mr. Keene that the surrounding area includes a range of lot frontages, including six (6) lots with frontages below 8 m on Johnson Street (6.52 m to 7.62 m) and sixteen (16) lots with frontages between 8 m-10.99 m, within two blocks of the Subject Property. The area is of a traditional grid pattern, consisting primarily of deep rectangular lots, including lots with narrow frontages. The proposed lots meet all the requirements of the One and Two Family (A) Zone of the City’s Zoning By-law No. 8499. The proposed lots are each able to accommodate a single-detached building envelope, meet the zoning requirements, and exceed the minimum lot area requirement. The minimum lot area requirement of the zone is 370 sq m. The proposed lots will be 542.3 sq m and 567.5 sq m which exceed the required minimum.

61Section 51(24)(c) of the Act provides that regard shall be had to whether the proposed lots conform to the Official Plan. The Subject Property is designated Residential, which is intended for a broad range of residential uses, including single-detached, semi- detached, duplex dwellings, townhouses, and apartments. (Policy 3.3 of the Official Plan).

62The Tribunal finds that the proposal is consistent with, and conforms to, the residential intensification goals and residential density targets in policies 2.3.2, 2.4.4 and 2.4.5 of the Official Plan. As the proposal is for a low density residential use, no negative impacts are expected on adjacent properties or on the neighbourhood. The proposed use is in keeping with the character of the area and permitted uses within the Official Plan and Zoning By-law. Increase in the overall net residential density within the urban boundary is in line with the City’s goal in policy 2.4.4.

63Mr. Park asserts that, contrary to s. 2.6 of the Official Plan, the severance will destabilize the surrounding neighbourhood. The Tribunal disagrees. The intent of this policy is to protect stable areas from incompatible or destabilizing development. Limited infill development that complements the area’s existing built form, architectural and streetscape character, and level of activity, is generally considered appropriate. The proposed lots are intended for future development of single-detached dwellings. The proposed residential use is permitted in the Residential designation and is compatible with the existing neighbourhood character of single-detached dwellings. During cross examination, Mr. Park was unable to give any example of a consent destabilizing the neighbourhood. The notion of a destabilized neighbourhood is not consistent with the fact that nearby lots on Johnson Street have not destabilized the area. Notably, the six lots that contain frontages of less than 8.0m, including: 652 Johnson Street (7.62 m); 654 Johnson Street (7.62 m); 656 Johnson Street (7.62 m); 660 Johnson Street (7.62 m); 621 Johnson Street (6.52 m); and 629 Johnson Street (7.62 m).

64Section 2.6.4 of the Official Plan speaks to “Types of land use and accepted development standards for stable areas will be set out in the Zoning By-law”. The City’s Zoning By-law does not include a minimum lot frontage in the A Zone. The Tribunal agrees with the Applicant and finds that lot frontage in the zone may be determined naturally by virtue of side yard setback requirements. The proposed lots, with approximate 8 m frontages can accommodate single-detached building envelopes without minor variances for side yard setbacks.

65Mr. Park expressed the City’s view that the narrow Johnson Street lots should not be considered in assessing neighbourhood stability. This view asserts that narrower lots could be allowed on arterial streets such as Johnson Street, but not permitted on local streets, or a mid-block lot, such as on MacDonnell Street. The Tribunal is not directed to any such policy in the Official Plan or the Zoning By-law. Under cross examination, Mr. Park was unable to point to any Official Plan or Zoning policy that differentiates between frontage requirements on local and arterial roads, or between corner and mid-block lots for the purpose of a severance application. Mr. Park also acknowledged under cross examination, that the depth of many of the lots in the area were significantly smaller than the Subject Property, and that the City had not taken this into account.

66The Tribunal finds that the proposed severance conforms to s. 9.6.13.a of the Official Plan, which provides that the creation of individual parcels of land by way of consent is subject to the following criterion:

The lot frontage, depth and area of any lot created by consent (severed and retained parcel) must be appropriate for the use proposed for the lot, be in compliance with the provisions of the zoning by-law and consistent, where possible, with adjacent lots.

The proposal also conforms to section 9.6.13.b of the Official Plan in that the severance would not result in irregularly shaped lots. The dimensions and shapes of the proposed lots are appropriate for the surrounding context while maintaining the existing lot pattern.

67The Tribunal finds that s. 51(24)(f) of the Act provides that regard shall be had to the dimensions and shapes of the proposed lots. This section is intended to avoid the creation of irregular lot shapes and odd dimensions that are out of character with the lot patterns and shapes in the existing area.

68The proposed lots do not result in a precedent of frontages as there are already narrow lots on Johnson Street and others in the area. The proposed severed and retained lots are regular in shape and compatible with the lot pattern in the area. The proposed lots are rectangular; of the same lot depth as adjacent lots; exceed the minimum lot area required by Zoning By-law; can accommodate single-detached dwellings, in compliance with zoning and meet all other requirements of the Zoning By-law. Narrow lots already exists for similar lot frontages with six (6) lots with a frontage below 8 m and sixteen (16) lots with a frontage of 8 m-10.99 m in the nearby area. The Tribunal finds that the dimensions and shapes of the proposed lots are rectangular and regular.

69The Tribunal notes that there is no minimum frontage requirement in the Zoning By-law. Each of the proposed lots exceeds the minimum lot area required, has a large lot depth and a single detached dwelling can be accommodated without the need for any variances. The Tribunal finds that the proposed lots are appropriate for the proposed use of residential dwellings and the dimensions and shapes are in keeping with this neighbourhood area.

70Mr. Keene provided a comprehensive review of the lot fabric of the area surrounding the Subject Property and his expert opinion is that the severance is appropriate in the eclectic MacDonnell Street neighbourhood.

71The onus remains on the Applicant to satisfy the Tribunal that the proposed severance meets the criteria in s. 51(24).

72The Tribunal agrees with Mr. Keene that the proposed severance does meet s. 51(24)(c) of the Act, which requires conformity with the Official Plan. In this instance, the severed and retained lot do not need any variances as they comply with the other requirements of the Zoning By-law. This Tribunal must have regard to all of the matters set out in s. 51(24) and in this regard, Mr. Park had in cross examination agreed that the criteria in s. 51(24) are met, except for in his opinion, s. 51(24)(c) and (f) which are not.

73The Tribunal finds that the properties which front on to Johnson Street (being 652, 654, 656, 660, 621 and 629 Johnson Street) are representative of the lot fabric of the neighbourhood. The neighbourhood context must include nearby properties whether located on or near the corner of a block, mid-block or situated on an arterial street or local street etc. since the severance policy in the Official Plan and the Zoning By-law requirements do not make special provision for such specificity.

74The Tribunal finds that the lot fabric of the area around the Ellerbeck Property is eclectic, just as the area around the Subject Property. The frontages along Ellerbeck Street range from 8 to 15 m. The severance of the Ellerbeck Property resulted in lots with 7.9 m frontages and areas of 385.7 sq m, which are consistent with the surrounding area. Similarly, the neighbourhood context around MacDonnell Street includes Johnson Street. With that consideration, lot frontages, widths, depths and areas are different and diverse and can be reasonably termed eclectic.

75The proposed severance does represent good land use planning. Having regard to s. 51(24)(c) of the Act, the proposed severance does conform with Official Plan policies regarding protection of stable areas and criteria for consent approval. Further, having regard to s. 51(24(f), the proposed severance would result in appropriate lot dimensions and shapes.

DECISION

76The Tribunal has reviewed the Municipal Record, the original application and the documents filed in the Appeal, the minutes of COA decision, and the parties’ submissions.

77Upon reviewing the planning evidence provided by Mr. Keene, which the Tribunal prefers to that of Mr. Park, the Tribunal finds that the Consent Application does meet the criteria in s. 51(24) of the Act.

78The Tribunal finds that the Subject Property is suitable for severance as the resulting 7.9 m frontage lots created will be compatible with the character of the neighbourhood. The frontages of the proposed lots are in keeping with the eclectic nature of the area’s existing lot fabric. Just 74 m and 190 m away on Johnson Street, there are six lots of similar frontages as the subject application. The character of the neighbourhood must take into account those existing smaller lot frontages as the existing context in this area is made up of those frontages which cannot be ignored. Furthermore, from the visual evidence, even in MacDonnell Street there is a lot which has a 7.0 m frontage and an area of 252 sq m i.e. 273 MacDonnell Street. As such the proposed severance will fit in harmoniously with the existing area and will not destabilize this neighbourhood.

79The Tribunal finds that the Consent to sever land application is consistent with the policies of the PPS, does conform with the provincial policies, does conform to the Official Plan, the Zoning By-law and does represent good planning and in the public interest. Accordingly, the Consent to sever the Subject Property into two lots as proposed should be authorized.

80Having reviewed the conditions proposed by the Applicant/Appellant, the Tribunal considers them reasonable and consent to sever will be granted subject to conditions imposed.

ORDER

81The Tribunal orders that the appeal is allowed and provisional consent is to be given subject to the following conditions:

1. That all conditions are satisfied and the Certificate of Official be presented to the Secretary-Treasurer, Committee of Adjustment for certification under Section 53(42) of the Planning Act, R.S.O. 1990 as amended, within one year of mailing of this notice. The Certificate must be registered within two years from the issuance of the certificate as required under Section 53(43) of the Planning Act, R.S.O. 1990, as amended. A copy of the registered transfer certificate shall be provided to the Secretary-Treasurer, Committee of Adjustment to complete the file.

2. That a digital version of a Reference Plan be provided in a PDF and AutoCAD Windows readable format on a compact disc (CD), USB memory stick or by email, illustrating the severed parcel be prepared and presented to the Secretary-Treasurer, Committee of Adjustment prior to the issuance of the Certificate of Official.

3. The Applicant shall contact the Tax Department and secure in writing from the Treasurer or the Manager of Taxation and Revenue, proof of payment of current taxes and any special charges required to be paid out and a statement of proof that is received and shall be provided to the Secretary-Treasurer, Committee of Adjustment, prior to the issuance of the consent certificate. The Applicant must pay any outstanding realty taxes and all local improvement charges levied against the property.

4. In the event that deeply buried or previously undiscovered archaeological deposits are discovered in the course of development or site alteration, all work must immediately cease and the site must be secured. The Cultural Program Branch of the Ministry of Tourism, Culture and Sport and the City of Kingston’s Planning Division must be immediately contacted.

5. In the event that human remains are encountered, all work must immediately cease and the site must be secured. The Kingston Police , the Registrar of Cemeteries Regulation Section of the Ontario Ministry of Consumer Business Services, the Cultural Program Branch of the Ministry of Tourism, Culture and Sport, and the City of Kingston’s Planning Division must be immediately contacted.

6. That cash-in-lieu of parkland shall be paid to the City of Kingston for park or public recreational purposes for each new building lot being created. The Applicant may choose to pay the fee through their DASH application, provide a certified cheque or provide payment at the front desk at 1211 John Counter Boulevard, prior to the issuance of the consent certificate.

7. The Applicant shall obtain a Demolition Permit through the Building Division for the removal of the single-detached dwelling and accessory structure located on the Subject Property. The Applicant shall provide the Secretary-Treasurer and the Committee of Adjustment, a copy of the Demolition Permit and confirmation that the buildings have been removed prior to the issuance of the Certificate of Official.

8. The Applicant is to complete a Site Servicing Plan for the new lot, which shall be approved by Utilities Kingston, prior to the issuance of the consent certificate.

9. Prior to final approval the Applicant shall provide a lot grading and drainage plan, prepared by a qualified professional, to the satisfaction of the Engineering Services Department demonstrating no negative affects to the neighbouring or subject lands, including both the severed and retained parcels.

10. The Applicant shall contact the Planning Division once the Reference Plan has been deposited and provided to the City of Kingston and obtain a draft civic address for each new lot created and all appropriate fees shall be paid. The Applicant shall provide to the Secretary-Treasurer and the Committee of Adjustment, written confirmation from the City that the civic address has been obtained prior to the issuance of the consent certificate.

“T.F. Ng”

T.F. Ng MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.