Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 14, 2021
CASE NO(S).: PL190146
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Northshore Ridge Condominium Corporation
Subject: By-law No. BL 41-2019
Municipality: City of Kenora
OLT Case No.: PL190146
OLT File No.: PL190146
OLT Case Name: Northshore Ridge Condo. Corp. v. Kenora (City)
Heard: August 13, 2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
City of Kenora
Krista Libman* Kevan Sumner, Planner Melissa Shaw, Planning Analyst
Chia Group and TCG Lake Ventures Corp (Applicant)
Jimmy Chow
Northshore Ridge Condominium Inc. (Kenora Condominium Corporation No. 2) (Appellant)
Jim Cook
DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL
1The parties to this matter have come to a settlement agreement regarding the appeal by Northshore Ridge Condominium Corporation (Kenora Condominium Corporation No. 2) (“Northshore”), with respect to Zoning By-law No. 41-2019, approved by the City of Kenora on March 19, 2019.
2TCG Lake Ventures Corporation applied to the Council of the City of Kenora who passed By-law No. 41 - 2019 at a meeting on Tuesday, March 19, 2019, thereby giving approval to a Zoning By-law Amendment to comprehensive Zoning By-law No. 101-2015.
3The lands municipally known as the area of 534 Lakeview Drive, and legally described as Part of Lots 22 to 28, 32 and Government Road and all of Lots 4 and 5 on Plan M-37, Lake of the Woods, City of Kenora, District of Kenora (the “Subject Lands”).
4The purpose of the amendment is to change the zoning of the subject properties from Highway Commercial (HC) to a site-specific form of Tourist Recreational (TR) to allow for development of uses permitted within the TR zone. By doing so, TCG Lake Ventures Corp. (“TCG”), is seeking to establish a resort with 35 units based upon a fractional ownership model.
5The appeal filed by Northshore cited concerns related to the setbacks from abutting property lines, height, and massing of the development, lack of outdoor amenity area, and the classification of the proposed use within the TR zone.
6The proposal is to further amend By-law No. 41-2019 to change the zoning of the subject property from HC- Highway Commercial to HC [42]- Highway Commercial, Exception [42] and obtain relief from zoning mechanisms in order to allow for the demolition of the existing Anchor Inn and redevelopment of the property for the creation of thirty-five (35) accommodation units within Area A, associated parking within Area B, and the development of an accessory structure within Area C.
Area 'A', to:
a. reduce the east side yard setback to allow a narrowing from 4.5 m to 1.6 m, reduce the westside yard setback to 2.4 m,
b. reduce the front yard setback to 6 m, reduce the rear yard to 4.5 m, increase building height to enable a variable terraced design to 15 m;
Area 'C' to:
a. allow for a two-storey Club House and Administration Office, not more than 7 m in height,
b. to reduce the setback from water to 6 m, to reduce the rear setback to 4.5 m;
c. to increase the lot coverage for the overall development to 44%.
d. to change the zoning of the subject property and obtain relief from zoning mechanisms in order to allow for the demolition of the existing Anchor Inn, and redevelopment of the property for the creation 33 resort units upon Area A, associated parking within Area B, the development of a clubhouse, administration office, and two (2) second floor resort units upon Area C.
Planning Evidence
7The Tribunal had before it, the Affidavit of Kevan Sumner, City Planner for the City of Kenora, whom the Tribunal qualified to provide independent expert opinion evidence in land use planning matters.
8Mr. Sumner’s Affidavit was marked as Exhibit 1. The Affidavit contained alphabetic noted Exhibits as tabs to the submission which will be referred to in this decision. Exhibit “E” provides a copy of the Settlement Agreement executed by the parties.
9Mr. Sumner explained that the City hosted a virtual mediation hearing between all of the parties in May 2020. Staff retained the services of WSP a mediation service to provide the mediation without prejudice.
10While a resolution was not achieved during the mediation session, it did lead to subsequent negotiations between the Applicant and Appellant on a new draft by-law that upon acceptance, would replace Zoning By-law Amendment No. 41-2019.
11After discussions between the Applicant and Appellants, the details of a new zoning amendment, one that would replace Zoning By-law Amendment No. 41-2019, was agreed upon – the “Revised Zoning Amendment by-law”. (Attachment 1).
12Mr. Sumner stated that on March 16, 2021 Council passed a resolution that recommended the settlement. Northshore and TCG executed an “Agreement of Resolution – Area of 543 Lakeview Drive, resolving the appeal on the basis of the Revised Zoning Amendment By-law.
13The proposal amends Zoning By-law Amendment No. 41-2019 to change the zoning of the Site from HC Highway Commercial to HC [42]- Highway Commercial, Exception [42] and to obtain relief from zoning mechanisms in order to allow for the demolition of the existing Anchor Inn and redevelopment of the property for the creation of thirty-five (35) accommodation units within Area A, associated parking within Area B, and the possible development of an accessory structure within Area C, as shown on Exhibits “C and D” to this Affidavit.
14Mr. Sumner opined, notwithstanding the permitted uses of s. 4.8.2 of the City of Kenora Zoning By-law No. 101-2015 for the HC-Highway Commercial Zone, this By-law will add a new definition ‘Resort Commercial Establishment’ which shall be defined as;
an establishment with associated accommodation units under single ownership, condominium or other shared ownership structure, with shared resort amenities and offering lodging by way of permit, lease, license, rental agreement or similar commercial arrangement.
15He informed the Tribunal that a Resort Commercial Establishment use will be permitted on the Site which will permit the Applicant to continue with the intended use of the Site. The resort units will be marketed as accommodation within Kenora, a prime year-round tourism destination. Ownership will be based on a financial model, called “fractional ownership” where each unit will be sold in 1/10 ownership shares, this translates into 350 owners, along with their families, guests, and renters. 35 private docking spaces will also be provided for the resort.
Provincial Policy Statement (PPS) 2020
16It was Mr. Sumner’s opinion that the Revised Zoning Amendment will permit a proposed development that will support tourism, encourage a sense of place, and promote well-designed built form. It is consistent with policies of the PPS including the following: Policy 1.1 Managing and directing land use to achieve efficient and resilient development and land use patters. 1.1.1 Healthy, liveable 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;
b) 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), employment (including industrial and commercial), institutional (including places of worship, cemeteries and long-term care homes), recreation, park and open space, and other uses to meet long-term needs;
17It was his opinion the proposed development makes efficient use of the property, providing a waterfront residential option to a large number of seasonal households that may not otherwise have been able to secure such accommodations on the City’s shoreline. By redeveloping an existing site, he stated that the applicant is making efficient use of existing municipal infrastructure.
18With regard to employment, Mr. Sumner pointed to PPS: Policy 1.3 Employment 1.3.1 Planning authorities shall promote economic development and competitiveness by:
a) providing for an appropriate mix and range of employment, institutional, and broader mixed uses to meet long-term needs;
b) providing opportunities for a diversified economic base, including maintaining a range and choice of suitable sites for employment uses which support a wide range of economic activities and ancillary uses and take into account the needs of existing and future businesses.
19He stated another component of the development will be accommodation of the Grace Anne Yacht. Guests of the yacht would use the location to park their vehicle and board for their trip. In his opinion, the proposed development provides the opportunity to renew a portion of Kenora’s waterfront that has recently been underutilized. It supports not only the economic benefits of property improvements, but also the operation of the Grace Anne, which is important to local tourism and the image of the community.
City of Kenora Official Plan (2015)
20Turning to the Official Plan, he stated that the designation of the subject property is Commercial Development (Area A) and Established Area (Areas B & C). Mr. Sumner referred to s. 4.4.1 Permitted Uses: in the Commercial Development Area land use designation shall primarily serve vehicular traffic. Permitted uses were explained to include, but are not limited to motels, hotels, restaurants, tourist establishments, shopping centres and accessory uses.
21Under s. 4.4.2 Commercial Development Area Policies, he stated the Zoning By-law ensures that developments in the Commercial development Area are appropriately set back from roadways and provincial highways, including outdoor storage and loading areas. They shall also be buffered to protect adjacent residential, institutional and open space uses and provide adequate on-site parking.
22He opined the proposed design of the Grace Anne Cottage Club takes advantage of the contours of the site to maximize views over Norman Bay and the Lake of the Woods, while orienting residential units away from the highway corridor to the north. The provision of parking on Area “B” enables the proposed development to comply with parking requirements of the Zoning By-law.
23He cited s. 3.13.3 of the Official Plan, as providing policies on docks and shoreline development. Item c) within the policy states that “commercial uses on the shoreline shall be designed to be compatible with surrounding uses. Developments which contribute to the tourism industry shall be encouraged.” It was further noted that the proposed use of docking slips for the benefit of residents is similar in nature to neighbouring marinas on Norman Bay. The inclusion of docking for the Grace Anne yacht will support an iconic feature of the local tourism industry.
24In the proposed amendment to Zoning By-law Amendment No. 41-2019, it states that Area ‘C’, shall not include a Resort Commercial Establishment, the maximum building height shall be 4.5 metres (“m”), and the rear yard (north) setback shall be reduced to 4.5 m; and notwithstanding the provision of s. 3.30 of Zoning By-law No. 101-2015 the front yard (south) setback shall be reduced to 6 m from 20 m.
25It was his opinion that the proposed building height, rear yard, and front yard setbacks are reasonable, striking a balance between the aspirations of the property owner and compatibility with neighbouring properties.
26He furthered, the development as proposed, which situates the residential units on Area ‘A’, a structure of limited size on Area ‘C’, and restricts the use of Area ‘B’ to parking, is a reasonable accommodation to address the concerns that were raised by the Appellants, preserving the views from the neighbouring property over Norman Bay.
City of Kenora Zoning By-law No. 101-2015
27Zoning of the primary development property (Area A) and waterfront (Area C) is HC, Area B is zoned R3 Residential – Third Density. Permitted uses of the HC Zone are limited to those that serve the travelling public and often requires large land areas for development.
28The proposed new Report Commercial Establishment use is similar in nature to some currently permitted uses. Mr. Sumner stated that the Site-specific zoning provisions will allow for the demolition of the existing Anchor Inn and redevelopment of the property as proposed by the Applicants.
ANALYSIS AND FINDINGS
29Having reviewed the material filed by the parties, and being satisfied that the Revised Zoning By-law Amendment, which forms the agreement of resolution by all parties, represents good planning, is consistent with the PPS, and conforms to the Official Plan and is reasonable.
30The Tribunal recognizes that Mr. Sumner, City Planner for the City of Kenora, has provided an Affidavit of planning evidence that supports the settlement and demonstrates that the proposal complies with all statutory instruments.
31The Tribunal accepts the uncontroverted planning evidence as it has been presented.
32The proposed Zoning By-law Amendment will allow for development of a resort, which is historically very similar to the use that existed for the many years while maintaining the view, access to the lake, access to the highway, and even the topography which, by virtue of its slope, is able to take advantage of a terraced building design thereby illustrating good planning.
ORDER
33THE BOARD ORDERS that the appeal is allowed, in part, and By-law No. 41-2019 of the City of Kenora is hereby amended in the manner set in Attachment 1 to this Order. The Board authorizes the municipal clerk to assign a number to this by-law for record keeping purposes. In all other respects, the Board orders that the appeal is dismissed.
“D. Chipman”
D. CHIPMAN 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.