C3M Asset Management Corporation v. Kingston (City), 2022 CanLII 28186

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 08, 2022

CASE NO(S).: OLT-21-001197

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: C3M Asset Management Corporation

Subject: Application to amend Zoning By-law No. 8499 – Refusal of application by the City of Kingston

Existing Zoning: One-Family & Two-Family Dwelling ‘A’ Zone

Proposed Zoning: Site Specific

Property Address/Description: 9 Couper Street

Municipality: City of Kingston

Municipal File No.: D14-018-2019

OLT Case No.: OLT-21-001197

OLT File No.: OLT-21-001197

OLT Case Name: C3M Asset Management Corporation v. Kingston (City)

Heard: February 9 and 10, 2022 by Video Hearing

APPEARANCES:

Parties C3M Asset Management Corporation City of Kingston

Counsel Jennifer Savini Tony Fleming Spencer Putman

DECISION DELIVERED BY BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL

1The Tribunal convened a merits hearing, in the matter of the appeal by C3M Asset Management Corporation (“Applicant”) against the City of Kingston (“City”) for the refusal of a Zoning By-law Amendment (“ZBA”) application. These proceedings were commenced under s. 34(11) of the Planning Act (the “Act”) and relate to a development proposal for the property known municipally as 9 Couper Street, in the City (“subject property”).

2The appeals relate to a ZBA application to amend the City’s By-law No. 8499 (“ZBL 8499”), as amended to permit the expansion of an existing multi-unit dwelling, which has the effect of increasing the floor area of the existing dwellings. Presently, existing on the subject property, is a two-and-a-half storey residential building with a total of three dwelling units, which include nine bedrooms. Vehicular parking is located in the western side and front yards. All three dwelling units have access through the front door that fronts on Couper Street with an accessory access located on the west side of the building. The rear yard is used as an outside grassed amenity area with a fence and trees along the northerly lot boundary.

3The Affidavit of Service sworn December 20, 2021, is marked as Exhibit 1.

4There are two parties of record regarding this matter, and both are represented in the hearing. No additional parties requested standing.

5A participant statement from Michael Seto dated December 13, 2021, was received by the Tribunal. Mr. Seto attended the first day of the hearing.

SITE AND AREA ANALYSIS

6The subject property can be described as an ‘irregular inverted L” shape with an area of approximately 806 square metres (“sq m”). It has frontage of 11.6 metres (“m”) on a local road known as Couper Street. It has ready access to existing water and sanitary sewage facilities. There is a 2.35 m wide access lane on the west side of the existing structure, which extends to the rear portion of the lot. The subject property is located in the Sunnyside neighbourhood, which is considered to be in the urban core of the City.

7The existing multi-unit residential structure was constructed in 1966 and the subject of a Minor Variance application in October 1982, which permitted the structure to have a third dwelling unit.

8The surrounding neighbourhood is primarily developed with low to medium density residential uses. It is in the older part of the City, and one finds a variety of lot sizes, lot frontages and lot shapes. Evidence demonstrated that the neighbourhood is well serviced by a range of public amenities including multiple city-owned public parks, existing elementary and secondary schools and is within walking distance (600 m) of two of the City’s major employers being Queen’s University and Kingston General Hospital. It is served by public transit, which is located approximately 250 m from the subject lands.

9There are recently approved and constructed residential uses within the neighbourhood.

THE WITNESSES

10The Tribunal has the benefit of testimony from two witnesses. The witnesses are Jason Sands for the Applicant (Witness Statement noted as Exhibit 2, Tab 5) and Robert Clarke for the City (Witness Statement noted as Exhibit 2, Tab 4). Both witnesses are qualified to give expert evidence in the discipline of Land Use Planning. This Decision includes both oral testimony and relevant material from witness statements provided to the Tribunal. The Tribunal did not have the benefit of evidence from a City planner but did have access to a comprehensive staff report on the proposal (Report Number PC-21-035 dated May 27, 2021, found at Exhibit 2, Tab 10), which is relevant to the Tribunal’s consideration of this matter and is referenced within the Decision.

BACKGROUND AND PROPOSAL

11The Applicant proposes to construct a two-and-a-half storey addition on the rear of the existing structure that serves to increase the Gross Floor Area (“GFA”) and reconfigure the layout within the existing structure. The need for a ZBA is triggered by a provision found in the City’s ZBL 8499, as amended, which ‘prohibits the extension, expansion or structural alteration of an existing multi-unit dwelling that has the effect of adding new floor area or dwelling units in an “A” Zone. There are no new dwelling units proposed as part of the ZBA.

12Suffice it to say the matter has an extensive history. A brief overview is as follows:

a. A ZBA application was submitted to the City in August 2019, subsequent to pre-application to determine input from City staff. The original submission sought to demolish the existing structure and replace it with a purpose-built triplex containing a total of 19 bedrooms. Proposed access to the rear yard vehicular parking made use of a City lane and right-of-way access across 15 Couper Street.

b. The ZBA application was supported by a number of technical studies including a: Planning Justification Report; Conceptual Site Plan; Floor Plan and Architectural Elevations; Grading Plan; Storm Water Management and Servicing brief; Tree Preservation Study and Stage 1 & 2 Archaeological Assessment. A Notice of Complete Application was issued in October 2019.

c. In November 2020, a statutory Public Meeting was held, and the first series of technical staff and agency comments were received.

d. In an effort to address public and staff comments, a revised development plan was submitted in January 2020, which initiated a second round of technical comments.

e. A second revision to the application was submitted in February 2021, again initiating another series of technical comments. This revision significantly changed the proposal by maintaining the existing 2 ½ storey structure; adding a rear addition; a reduction in GFA, a reduced building depth and a number of bedrooms, and having access to the rear yard parking from the existing driveway rather than making use of the City lane.

f. the revised proposal was the subject of a Planning Committee public meeting in May 2021 along with a comprehensive staff report recommending approval. The Planning Committee recommended to Council that the application should be refused. At the June 2021 City Council meeting, Council supported the Planning Committee recommendation and refused the ZBA application.

PLANNING INSTRUMENT

13The subject property is zoned One and Two Family Dwelling “A” in ZBL 8499, as amended. The Applicant is seeking a site specific rezoning from an “A” zone to an “A.604” for the subject lands. The Tribunal has the benefit of a proposed ZBA (Exhibit 2, Tab 20c)) before it for its consideration. The effect of the ZBA is:

a. to permit a multi-family dwelling containing three dwelling units.

b. a minimum lot area of 269 sq m.

c. a maximum residential building depth of 20.9 m.

d. a minimum of one off-street parking space per dwelling unit.

e. a maximum of 50 sq m of the rear yard may be used as an uncovered parking area.

f. a minimum driveway width of 2.3 m.

g. a minimum setback from the front lot line of 2.2 m.

h. a maximum number of bedrooms – 14.

LAND USE POLICY

Provincial Policy

The Planning Act (the “Act”)

14Mr. Clark is of the opinion that the proposed ZBA does not have appropriate regard for s. 2 of the Act and specifically noted in s. 2 h) and r). He made reference to the number of dwelling units with a high number of occupants but there are no sufficient facilities on-site to support potential residents, resulting in a development that ‘will be out of character with the predominant form of development in the neighbourhood’.

15Mr. Sands, in his oral testimony, noted that the provincial interests found in the Act are ‘high level’ and all relevant sections were considered during the course of his review of the proposal. He opined that all relevant provincial interests were given appropriate regard and the proposal and ZBA are consistent with s. 2 of the Act.

16The Tribunal accepts the evidence of Mr. Sands and finds that the ZBA has appropriate regard of s. 2 of the Act.

17Much was made in submissions by the City regarding s. 2.1(1) of the Act and the fact that City Council made a decision to refuse the ZBA. The Tribunal has, in its determination of this appeal, had regard to matters as outlined in s. 2.1(1) of the Act which states: “When … the Tribunal makes a decision under this Act that relates to a planning matter, it shall have regard to, (a) any decision that is made under this Act by a municipal council…as it relates to the same planning matter; and (b) any information and material that the municipal council…considered in making the decision described in clause (a)”.

18The Tribunal notes that the courts have (Minto Communities Inc. v. Ottawa (City), 2009 CanLII 65802 (ON SCDC), 2009 CarswellOnt 7349) determined that the Municipal Council is the first to determine the public interest but “…the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate...”

19As previously noted, City Council did have the benefit of a comprehensive planning report providing complete background information, a thorough analysis of the proposal as it relates to applicable public policy, considerations relating to the City’s Zoning By-law (a proposed ZBA is found at Exhibit A of the planning report), results of the technical analysis, and a summary of public comments.

20The Tribunal did not have the benefit of evidence from a City planner, but the May 27, 2021, Planning Report is part of the record provided to the Tribunal and is relevant and carries weight in this matter. The Tribunal is struck by the first full sentence of this report that comments on how the application aligns with council’s Strategic Direction:

Goal 2.1 Pursue development of all types of housing city-wide through intensification and land use policy

21The conclusion found in the staff report is:

Planning Services recommends approval of the application for a zoning by-law amendment for the property known as 9 Couper Street. The proposed two-storey rear addition will be compatible with the existing residential neighbourhood and will not result in adverse impacts. In addition, the proposed redevelopment will contribute to the City’s housing supply. Adequate amenity space, parking, and landscaped area will be provided. The proposed zoning by-law amendment is consistent with the Provincial Policy Statement and conforms to the City of Kingston Official Plan.

Provincial Policy Statement, 2020

22On February 28, 2020, the Province issued a revised Provincial Policy Statement (“PPS 2020”), which took effect on May 1, 2020. All land use planning decisions made after this date are required to be consistent with its policy directions. The PPS provides overarching policy on land use planning in Ontario, with the general goal to enhance the quality of life of those living in the Province. The PPS 2020 is one of the foundations of the Provincially led planning policy regime.

23Mr. Clark maintained his opinion that the proposed addition was not consistent with the PPS 2020 by making special reference to s. 1.1.1 c) and s. 1.1.3.4. His testimony spoke to the adverse impacts on surrounding uses, the lack of supporting facilities to support the needs of the occupants of the dwellings and intensification is to be based on availability of adequate facilities.

24Mr. Sands took a more detailed and comprehensive review of the PPS 2020 to determine consistency and emphasized that you must read the document in its entirety in developing his opinion. He made reference to s. 1.1.1, 1.1.3, 1.2.6, 1.4.1, 1.6.6.2, 1.6.6.7, 1.6.7.4, 1.7.1, 1.8.1, 2.1, and 2.6.1. He then described how each related to the ZBA and proposed addition with reasons for his including:

a. is within a well established residential area that is within the City’s urban boundary, will assist the City in limiting the requirement for additional Greenfield lands and is located in an area with a full range of urban services;

b. improves the size and functionality of the three dwelling units and improves the range of housing supply and availability;

c. the proposed increase in GFA will not serve to adversely affect the neighbouring land uses or limit the long term viability of a major facility;

d. maintains the existing density on the subject lands within the serviced urban boundary and the increased intensity of use will not necessitate an increase in public services and is well serviced by transit, parks and major public facilities located nearby;

e. will not result in any adverse effects with respect to human health and safety of future residents nor adjacent properties;

f. supports active transportation as in a central location that is within walking distance of major employers, public amenities, and open space. A number of dedicated enclosed bicycle parking spaces are being proposed;

g. the rear addition is consistent with the built form, of both the existing structure and those in the immediate neighbourhood, thereby does not degrade any cultural heritage resources; and,

h. does not adversely impact a natural heritage system and a Stage 1 and 2 Archaeological assessment and determined no potential significance.

25The City staff report provided a detailed review and analysis of Provincial policy and found the proposed ZBA is consistent with the PPS 2020.

26Mr. Sands opined that the proposal is consistent with the PPS 2020. The Tribunal agrees and accepts his opinion in its entirety.

Municipal Policy

City of Kingston Official Plan

27The City’s Official Plan (“KOP”) was adopted in 2010 and was the subject of a five year review in 2017. The subject property is designated ‘Residential’ as noted on Schedule 3A Land Use and within a ‘Housing District’ as illustrated on Schedule 2.

28The Planners made reference to the following policy sections, and all were referred to during the course of evidence: s. 2.2.5 – Housing Districts; s 2.3 – Principles of Growth; s. 2.4 – Phasing of Growth; s. 2.6.2 and 2.6.3 – Protecting Stable Areas; s. 2.7 – Land Use Compatibility; s. 3.3.6 and 3.3.7 – General Residential Policies. s. 3.3.A.2 – Maximum Density Low Density Residential; and s. 9.5.9 - Planning Committee/Council Consideration. All sections were reviewed in detail in the Planner’s evidence and are considered in this Decision and Tribunal findings.

29The Tribunal found that there is general agreement amongst the Planners with respect to the following important KOP policy directions including:

a. a triplex dwelling is a permitted use in the Residential designation and the proposal is within a neighbourhood that is primarily low to medium density;

b. a goal of the Residential designation “is to respond to the housing needs of all City citizens by retaining and augmenting a broad range of housing options at all levels of affordability”;

c. lands in a Housing District ‘are to remain stable but recognize that maturation and adaptation occurs as the City evolves’. Stable is not static and as such, neighbourhoods do change and evolve over time; and minor intensification and minor development is permitted subject to appropriateness;

d. a general encouragement of ‘minor infilling’ that integrates with the prevailing built form, height and amenity that exists in the neighbourhood;

e. the proposed development is within the City’s defined urban boundary; and,

f. the City seeks to reduce land consumption by increasing density within its defined urban boundary and has a target of 40% of new residential development, which should occur through intensification;

30Mr. Clark is concerned that the “alterations to the number of bedrooms in the units results in residential uses which cater to large households, many with unrelated individuals and create additional requirements for such facilities as parking”. In the overview of his evidence and opinion, it clearly outlined the three issue areas that are key in the City Council’s consideration and refusal of the ZBA being:

a. the incompatible nature of both the built form and activity level on the immediate neighbours, and the larger neighbourhood to the west and north, making special note of those Single Detached Dwellings (as he characterized these areas);

b. inadequate parking and amenity space on the subject property to adequately serve the residents of the dwelling unit leading to over development; and,

c. issues related to the proposed rear yard parking and its potential adverse impact on the neighbours immediately north of the subject property.

The Tribunal appreciates Mr. Clark for his definition of the key issues and will use them as a basis of the review and analysis of KOP policy.

Compatibility – Built Form and Activity Level

31An important consideration of this debate is the found in s. 2.6.1 of the KOP that 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 or change that may be destabilizing.

Again, it is important to note that both Planners are of the view that ‘stable does not mean static’.

32Compatibility is important in the Tribunal’s consideration and analysis of the Official Plan policy. The first point of departure is to determine exactly what compatibility indeed is as the Tribunal hears evidence that new development must be compatible with the existing development. The Tribunal looks to Motisi v. Bernardi, 1987 CarswellOnt 3719, (1987) O.M.B.D. No. 2, 20 O.M.B.R. 129 for some direction.

Being compatible with is not the same thing as being the same as. Being compatible with is not even the same thing as being similar to. Being similar to implies having a resemblance to another thing; they are like one another, but not completely identical. Being Compatible with implies nothing more than being capable of existing together in harmony.

33In the City, stable areas are considered to have the following characteristics that are relevant to this matter (s. 2.6.2) being:

a. a well established land use pattern in terms of density, type of use(s) and activity level;

b. a stable pattern of land ownership or tenure; and

c. a sufficient base of social and physical infrastructure to support existing and planned development.

34Mr. Sands, in his evidence, completed an exhaustive study of the neighbourhood in close vicinity of 9 Couper Street to illustrate that the proposal is in keeping with and conforms to the stable areas of residential policies of the KOP. His analysis demonstrated that:

a. the density as measured by units per hectare has a variety of low, medium, and high density dwellings in the area. There are medium and high density developments existing close to the subject lands (Exhibit 2, Tab C, Appendix 1). The proposal matches the land use pattern in terms of density;

b. there are a variety of bedrooms per hectare found in the area (Exhibit 2, Tab C, Appendix 2A). This analysis illustrates there is an overall neighbourhood pattern of activity level, and the proposal is consistent with the general activity level of the neighbourhood;

c. the majority of the dwellings in the area are tenanted units and shows a well established pattern of land ownership and tenure (Exhibit 2, Tab C, Appendix 5); The Applicant does intend to maintain the established pattern as a rental building; and,

d. there is a sufficient base of physical and social infrastructure within an easy walking distance of the subject property. There are schools, parks, major employers and institutions within walking distance and there is adequate municipal infrastructure to service the proposal.

35In conclusion, Mr. Sands opined that the detailed area analysis illustrates the ZBA conforms to the stable residential area policies and the minor rate of change it represents does not destabilize the surrounding residential neighbourhood.

36Mr. Clark did not present a differing area analysis but is of the view that the area is considered stable. He is of the opinion that the proposal introduces a different type of residential development both in terms of design and number of tenants.

37The KOP defines a series of criteria that is used to determine what “types of intensification are generally considered appropriate within stable areas” (s. 2.6.3). Themes of the relevant criteria (s. 2.6.3 a. and d.) are:

a. infill development is limited and designed to complement the area’s existing built form, architectural and streetscape character, and level of activity; and,

b. if a rezoning is required, the proposal will complement existing uses in the area, supports a transition in density and built form, support active transportation and public transit, and be compatible with existing development taking into account policies in s. 2.7. Policy s. 2.7.3 defines a series of compatibility matters to be considered, which include an evaluation related to shadowing, intrusive overlook, increased traffic, diminished levels of social or physical infrastructure, a reduction of the ability of residents to enjoy a property or the normal amenity associated with it, and the need for architectural compatibility in terms of scale, style, massing, and colour.

38Mr. Clarke is of the opinion that the proposal does not comply with the criteria because it:

a. increases the level of activity within the neighbourhood due to the increased number of bedrooms and parking into the rear yard and therefore, does not match the pattern of housing in the immediate area which are “predominately single-family residential uses with front-yard parking”,

b. extends the building to accommodate the increased use, which may cause shadowing impacts on the neighbouring properties amenity areas. He noted there was no shadow studies completed by the Applicant, but he did not offer studies completed under his direction to demonstrate potential impacts;

c. reduces the ability for the dwelling unit occupants to enjoy the property due to the loss of amenity space to parking spaces and a bicycle storage area;

d. is architecturally incompatible in terms of scale, style, and massing. The structure is deeper and larger in mass than the neighbours and therefore, will intrude visually in the amenity space of neighbouring properties; and,

e. the proposal is not able to provide appropriate buffering to mitigate noise, light and shadowing issues nor is it able to provide suitable vehicular ingress and egress.

39Mr. Sands is of the opinion that the proposal is compatible with the existing development both on-site and within the surrounding neighbourhood. It is an appropriate form of intensification that does not destabilize the residential neighbourhood. To demonstrate this, he provided a detailed review of all relevant criteria as defined in the ‘Land Use Compatibility Matters’ (s. 2.7.3) and ‘Functional Needs’ policies of the KOP. His conclusion from this analysis is the proposal conforms to the intent of both policy sections. Reasons include:

a. the two-and-a-half storey addition complies with the existing building height, exterior wall height, interior and rear yard setback requirements. In fact, the rear yard setback is almost three times the by-law minimum and the existing structure is less in overall height than either of the adjacent residential structures;

b. there is a minimal loss of privacy or intrusive overlook for adjacent properties as the Applicant proposes no new windows on the western façade and only one window per floor on the eastern façade;

c. there will be no appreciable increase in light, noise, dust, or vibration, save and except during the construction phase;

d. there is no increase in dwelling units and the technical review by the City Transportation Engineering staff did not determine a potential traffic disruption. There will not be a significant increase in traffic or decrease in the opportunity or functionality of multi-modal transportation;

e. the proposal does not increase the number of dwelling units so anticipated service levels of existing social and physical infrastructure will not be diminished;

f. the outdoor amenity and landscaped area will provide unit residents with a large private space that is greater than the minimum required;

g. by moving the parking to the rear, the front yard parking conditions will be mitigated, and the streetscape aesthetic of Couper Street will be improved;

h. the proposed addition is comparable in height, scale, and massing to the surrounding existing built form. The addition is in the rear yard so it is not anticipated that it will be visible from the street or affect the streetscape. He made note of several properties within the surrounding area that have similar rear yard additions;

i. the rear yard addition will increase the GFA of the existing triplex on a lot sufficiently sized and centrally located in the City that is contextually appropriate; and,

j. there is safe access to the rear yard parking for vehicles, access by pedestrians and a secure bicycle storage shed for up to six bicycles.

40In conclusion, Mr. Sands opined that the proposed ZBA complies with the intent of the ‘Land Use Compactivity Matters’ of the KOP.

41The Tribunal reviewed the City staff report recommending approval to determine if staff had addressed the issue of compatibility, most notably the criteria found in s. 2.7 of the KOP. The report states the following:

further growth and development within the City is guided by principles of land use compatibility that respect the quality of existing areas and provide for suitable transition between areas of differing use, sensitivity, urban design treatment, and intensity in order to avoid or mitigate adverse effects…The proposed development is comparable in height, scale and massing to the built form in the surrounding area. The proposed rear addition provides a built form that is consistent with the development in the surrounding area, as several properties on Albert and Collingwood Streets contain similar area building structures.

42The Tribunal prefers the detailed evidence of Mr. Sands that the ZBA conforms to the compatibility, built form and activity policies of the KOP. The planner noted that the proposed addition as implemented by the ZBA, when constructed will be in keeping with the land uses, built form of existing structures, existing neighbourhood density, intensity of use and tenure of dwelling units in the surrounding neighbourhood. The Tribunal finds that the ZBA and proposal it implements is an appropriate form of intensification that is ‘capable of existing together in harmony’ with and will not destabilize the existing residential neighbourhood. Reasons include:

a. the addition complies with the existing building height, exterior wall height, interior and rear yard setback requirements. Evidence demonstrated the existing structure is less in overall height than either of the adjacent residential structures and the proposed addition is comparable in height, scale, and massing to the surrounding existing built form. The rear yard addition simply increases the GFA of the existing triplex on a lot sufficiently sized and centrally located in the City that is contextually appropriate;

b. the Applicant made considerable effort to ensure there is a minimal loss of privacy or intrusive overlook for adjacent properties and there will be no appreciable increase in light, noise, dust, or vibration post construction period;

c. there will not be a significant increase in traffic or decrease in the opportunity or functionality of multi-modal transportation;

d. it is not anticipated service levels of existing social and physical infrastructure that will be diminished;

e. the generous size of the subject lands ensures adequate outdoor amenity and landscaped area that will provide unit residents with a large private space that is greater than the minimum required; and,

f. the improvement in the streetscape of Couper Street is an important policy consideration. Therefore, by moving the parking to the rear, the front yard parking conditions will be mitigated, and the streetscape aesthetic will be improved.

Inadequate Parking and Amenity Space – Overdevelopment

43Mr. Clarke opined that the proposal does not provide sufficient parking for the number of occupants expected to reside in the triplex dwelling. The proposal has one space per unit, whereas the existing zone provisions require 1.4 spaces per unit. He made reference to s. 2.7.6 of the KOP, which states “Only development proposals that meet the long-term needs of the intended users or occupants will be supported”. Using photographic evidence found in Exhibit E of the May 27, 2021, planning staff report, he shows there are a total of four vehicles parked in the driveway and front yard of the subject property. His conclusion is that the three parking spaces provided will be insufficient for the 14 bedrooms. The lack of on-site parking is exacerbated by on-street parking restrictions on Couper Street and surrounding streets.

44The planner made note of the narrow access driveway to the rear portion of the subject property. Wider personal vehicles may struggle in gaining access to the rear parking spaces, there is a limited area for snow storage, and may impede the access of emergency vehicles should they need to access the rear of the property.

45Mr. Sands in his evidence noted that in the majority of residential zones, multi-family homes are required to provide a parking ration of one parking space per dwelling unit and the net effect of the proposal is to increase the number of parking spaces on-site from one to three. The Applicant proposes to provide secure covered bicycle parking facility that can accommodate a total of six parking spaces. The planner noted that the subject property is well served by public transit and is within walking distance of several major employers, institutions, and public facilities.

46Mr. Sands testified that the existing asphalt driveway will be used to access the rear parking spaces, which contains a ‘pinch point’ of 2.35 m necessitating the reduced driveway width. He measured larger vehicles common to the City and found they range from 1.79 to 2.03 m in width, making the reduced minimum driveway functional and contextually appropriate. His view is that the Applicant is planning to re-establish a former access.

47The Tribunal notes that in the staff planning report (Exhibit 2, Tab 10) off-street residential parking area and minimum driveway width are all discussed in detail. Conclusions are the proposed on-site parking is appropriate, the relief of the parking area is necessary to meet the needs of site users and the reduced driveway width is contextually appropriate and will result in no adverse effect on the surrounding neighbourhood. It goes on to note that the one space per unit “is consistent with the approach commonly taken in other site-specific ‘A’ Zones in the surrounding area”.

48Mr. Clarke stated that the proposal will result in the ability of the residents to enjoy the property. He admitted that the amenity space that is provided exceeds the minimum that is required in the Zoning By-law, but the rear yard parking and bicycle parking and storage facility will divide the rear yard green space and reduce the utility of the remaining amenity space.

49Mr. Sands provided detailed evidence on how the uses on the subject property would be programmed on what could be considered a generous sized lot. The plot plan (Exhibit 2, Tab 8 vi)) illustrates the substantial green space amenity areas that far exceeds the minimum on-site amenity space and landscaped open space required in the Zoning By-law. Some of the amenity area is removed but what remains is adequate, connected and readily available to the residents of the dwelling units. In his opinion, the proposal does not serve to diminish the service of existing social or physical infrastructure found on-site.

50Mr. Sands made note of s. 3.3.A of the KOP, which provides direction on differing densities of residential development in the City. Residential densities of less than 37.5 units per hectare are considered low density and includes triplexes. The ZBA does not increase the overall residential density on the subject property, maintains the low density units per hectare and therefore, does not represent an over development.

51The Tribunal prefers the evidence of Mr. Sands and finds that the proposal does not represent an over development of the subject lands. Three parking spaces have been evaluated by the Planner for the Applicant and City staff. Both have determined their adequacy for the proposed uses within the existing site and locational context. Available amenity space found on the subject lands far exceeds the minimum City standards and is readily available to the residents of the dwelling units. Evidence demonstrated there is safe access to the rear yard parking for vehicles, access by pedestrians and a secure bicycle storage shed for up to six bicycles. The ZBA does not increase the overall residential density on the subject property, thereby maintaining the existing low density units per hectare found in the KOP.

Potential Adverse Impact of Rear Yard Parking

52With respect to this issue, Mr. Clarke made note of s. 2.7.1 of the KOP that “requires the proposed development must demonstrate that the resultant form, function and use of the land is compatible with the surrounding land uses”. The introduction of parking in the rear yard and a narrow access immediately adjacent to the neighbouring property will result in an incompatible arrangement to these neighbouring properties. The existing parking in the front yard buffers these impacts. Introducing rear yard parking will result in noise and the glare of headlights from the cars using the driveway for access and parking in the rear yard and the proposed parking spaces are very close to the rear property line, which may have a potential impact on the adjacent lots. There will also be seasonal noise from snow removal vehicles as it appears snow storage will be located in the rear yard.

53Mr. Sands testified that the proposal would remove the existing front yard parking situation in an effort to improve the streetscape conditions on Couper Street and be in keeping with City objectives. There is an existing solid board fence along the rear property line, which has considerable existing landscape features that the Applicant proposes to protect during construction. It is his opinion that the proposal “does not adversely impact any adjacent property owners’ view of a natural feature. Further the proposed development does not seek to remove any existing vegetation on the subject property”.

54Evidence of Mr. Sands illustrated there was not a general consensus of the correct number of parking spaces to be provided. The Applicant was prepared to accommodate additional parking if required. With no specific direction from the City, the proposal will provide one parking space per unit. Recently approved and constructed multi-unit residential projects in the surrounding neighbourhood have been approved using this parking standard.

55The Tribunal notes that noise and headlight impact, on adjacent properties, is not suggested as an issue based on the description of the public comments by City staff, in the recommendation report. Mr. Seto, in his participant statement, stated that he built a fence at the rear of his property to keep former residents from accessing his property. He notes the ongoing problems of ‘noisy parties’ but makes no reference of his concern over vehicle noise or headlight impact to his property. Mr. Seto was unclear whether the existing trees would remain and Mr. Sands, in his evidence, noted the Applicant “does not seek to remove any existing vegetation on the subject property”.

56The Tribunal prefers the evidence of Mr. Sands and finds that the proposed rear yard parking and use of the existing driveway for access will not have an adverse impact on adjacent properties. The existing solid board fence when combined with the existing vegetation shown on the plot plan should adequately mitigate the issues of vehicular noise and headlight penetration.

CITY OF KINGSTON ZONING BY-LAW

57The subject property is zoned One and Two Family Dwelling “A” in ZBL 8499, as amended. The Applicant is seeking a site specific rezoning from an “A” zone to an “A.604” for the subject lands. The existing triplex was permitted by way of a minor variance approved in 1982. Many of the proposed zone provisions could be considered ‘housekeeping’ in nature as they either codify existing zone provisions or recognize existing conditions.

58An analysis of the proposed zone provisions are as follows:

a. to permit a multi-family dwelling containing three dwelling units – no change in number of dwelling units.

b. minimum lot area of 269 sq m- no change in use or density.

c. maximum residential building depth of 20.9 m, whereas the maximum depth is 18.1 m.

d. minimum of one off street parking space per dwelling unit, whereas the parking rate is 1.4 parking spaces per unit.

e. maximum of 50 sq m of the rear yard may be used as an uncovered parking area exceeding ZBL 8499 minimum standards.

f. minimum driveway width of 2.3 m - recognizes the existing driveway width.

g. minimum setback from the front lot line of 2.2 m - recognizes the existing front yard.

h. maximum number of bedrooms – 14. This additional performance standard to secure an additional level of land use control as the number of bedrooms is an important consideration in this area of the City.

59Mr. Clarke opined that the ZBA is not consistent with policies found in the KOP as it would facilitate the expansion of a use, which, in his opinion, is not permitted in or meets the criteria of uses in a stable neighbourhood.

60Mr. Sands went to great lengths to describe the rationale for each of the proposed ZBA provisions and how they conform to the KOP, are consistent with ZBL 8499 or gave reasons why he is comfortable recommending a zone provision. He is of the opinion that the recommended ZBA as expressed in the provisions of the recommended site specific ‘A.604’, which will accommodate the expanded GFA is appropriate, consistent with the PPS 2020, conforms to the KOP and represents good planning and is in the public interest. The Tribunal agrees.

CONCLUSIONS

61The Tribunal heard the evidence from two qualified land use planners and has the benefit of material provided in the Joint Document Book and one participant statement. Intensification and change in existing neighbourhoods are an ongoing challenge but such evolution has found and will continue to find its way into these neighbourhoods. With this reality in mind, the Tribunal prefers the evidence of Mr. Sands.

62For all of the foregoing reasons, the Tribunal finds that the ZBA represents good planning and is in the public interest. It has appropriate regard to s. 2 of the Act, is consistent with the PPS 2020 and is in conformity with the KOP.

63The Tribunal finds the City has a well established planning policy for the area surrounding the subject property and City staff followed a careful, complete, and comprehensive planning review of the ZBA and with this analysis, found comfort in recommending approval to City Council. The Tribunal is impressed with the detail of analysis presented by the City planners with respect to the ZBA and therefore, the content and conclusions of the recommendation report have weight in the Tribunal’s Decision.

64Evidence shows that the City’s policy framework for what they term as ‘stable’ existing neighbourhoods has been largely successful in managing the pressures for change. As existing neighbourhoods are not going to be ‘static’ or remain the same, the KOP policy ensures that changes that are made in these neighbourhoods are positive and constructive. The proposed ZBA ensures just that.

65From a general KOP policy perspective, the Tribunal finds that:

a. triplex dwellings are permitted in the Residential designation and the proposal is within an existing neighbourhood that is primarily low to medium density. The ZBA maintains the units per hectare of a low density designation;

b. a goal of the Residential designation “is to respond to the housing needs of all City citizens by retaining and augmenting a broad range of housing options at all levels of affordability”. The supply of all forms of housing is an important policy objective of both the Province and the City and carries weight in the Tribunal’s consideration of the ZBA;

c. lands in a Housing District ‘are to remain stable but recognize that maturation and adaptation occurs as the City evolves’. The Tribunal agrees that stable is not static and as such, neighbourhoods do change and evolve over time. City policies allow for minor intensification and appropriate modest development is permitted. The proposed ZBA is constructed in a manner to ensure this policy objective is met;

d. the KOP has policy that generally encourages ‘minor infilling’ that integrates with the prevailing built form, height and amenity that exists in the neighbourhood. Evidence clearly demonstrated compatibility is achieved; and,

e. proposed development is within the City’s defined urban boundary. This proposal, although somewhat minor in nature, does assist the City in its efforts to reduce land consumption by increasing density within its defined urban boundary and has a target of 40% of new residential development should it occur through intensification.

66With respect to the issue of compatibility, which is the major area of debate in this hearing, the Tribunal finds that:

a. the ZBA conforms to the compatibility, built form and activity policies of the KOP;

b. the proposed addition as implemented by the ZBA, when constructed will be ‘capable of existing together in harmony’ with the land uses, built form of existing structures, existing neighbourhood density, intensity of use and tenure of dwelling units in the surrounding neighbourhood; and,

c. the ZBA ensures the proposal it implements will be an appropriate form of intensification and will not destabilize the existing residential neighbourhood.

67The Tribunal finds that the ZBA does not represent an over development of the subject property. Dwelling unit residents will have ample amenity space and the ability to make use of this space and enjoy the property. Evidence demonstrates that amenity space found on the subject lands far exceeds the minimum City standards, is readily accessible to residents and exceeds the minimum City standards. The rear yard parking along with the bicycle parking and storage facility is appropriately located and will not reduce the utility of the remaining amenity space. Three parking spaces have been evaluated by the planner for the Applicant and City staff, and have determined their adequacy for the proposed use within the subject property and locational context. The Tribunal notes that recently approved and constructed multi-unit residential projects in the surrounding neighbourhood have been approved using this parking standard. Evidence demonstrated there is safe access to the rear yard parking for vehicles, access by pedestrians and a secure bicycle storage shed for up to six bicycles.

68The Tribunal finds that the evidence presented at the hearing is not sufficient to demonstrate a potential adverse impact presented by rear yard parking. Rear yard parking would implement a City objective to remove existing front yard parking situations in an effort to improve the streetscape conditions. There is an existing solid board fence along the rear property line, which also has considerable existing landscape features that the Applicant proposes to protect during construction. Both will serve to mitigate impacts on adjacent properties. Conclusions are the proposed on-site parking is appropriate, the relief of the parking area is considered sufficient to meet the needs of site users, the reduced driveway width is contextually appropriate and will result in no adverse effect on the surrounding neighbourhood. One parking space per unit is consistent with the approach commonly taken in other site-specific ‘A’ Zones in the surrounding area.

69The Tribunal believes it is important to reiterate that the courts have (Minto Communities Inc. v. Ottawa (City), 2009 CanLII 65802 (ON SCDC), 2009 CarswellOnt 7349) determined that the Municipal Council is the first to determine the public interest but “…the appeal process before the Ontario Municipal Board is not merely a lis between parties, but a process requiring the OMB to exercise its public interest mandate...”

70The Tribunal finds that the ZBA as presented that serves to establish a site specific ‘A.604’ for the subject property (Exhibit 2, Tab 20 c)) is appropriate to ensure the proper implementation of the proposed addition.

ORDER

71Accordingly, the Tribunal Orders:

72THAT the appeal pursuant to s. 34(11) of the Planning Act is allowed and By-law No. 8499, as amended, of the City of Kingston is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the City of Kingston to assign a number to this By-law for record keeping purposes.

73In the event any matters arise, which are related to the implementation of this Order, the Tribunal may be spoken to.

“Bryan W. Tuckey”

BRYAN W. TUCKEY MEMBER

Ontario Land Tribunal Website: www.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.

ATTACHMENT 1

Page 1 of 2

By-Law Number 2021-XX

A By-Law to Amend By-Law Number 8499, “Restricted Area (Zoning) By-Law of The Corporation of the City of Kingston” (Site-Specific Zone Change from ‘A’ to ‘A.604’, 9 Couper Street)

Passed: [Meeting Date]

Whereas by Order of the Minister of Municipal Affairs and Housing, The Corporation of the Township of Kingston, The Corporation of the Township of Pittsburgh and The Corporation of the City of Kingston were amalgamated on January 1, 1998 to form The Corporation of the City of Kingston as the successor municipal corporation and pursuant to the Minister’s Order, any by-laws of the former municipality passed under the Planning Act continue as the by-laws covering the area of the former municipality now forming part of the new City; and

Whereas the Council of The Corporation of the City of Kingston deems it advisable to amend By-Law Number 8499, as amended, of the former City of Kingston;

Therefore be it resolved that the Council of The Corporation of the City of Kingston hereby enacts as follows:

1. By-Law Number 8499 of The Corporation of the City of Kingston, entitled “Restricted Area (Zoning) By-Law of The Corporation of the City of Kingston”, as amended, is hereby further amended as follows:

1.1. Map 30 of Schedule “A”, as amended, is hereby further amended by changing the zone symbol of the subject site from ‘A’ to ‘A.604’, as shown on Schedule “A” attached to and forming part of By-Law Number 2021-___.

1.2. By adding a new Section 604 to Part VIII (Exceptions to the Various Zone Classifications), as follows:

“604. 9 Couper Street

Notwithstanding the provisions of Section 5 and 6 hereof to the contrary, on the lands known municipally as 9 Couper Street and zoned ‘A.604’ on Schedule “A” hereto, the following regulations shall apply:

i. Additional Permitted Use:

In addition to the uses permitted in Section 6.2, the permitted uses shall also include a multiple family dwelling containing three residential dwelling units.

ii. Minimum Lot Area: 269 square metres per dwelling unit

iii. Maximum Permitted Residential Building Depth: 21.0 metres

iv. Minimum Off-Street Residential Parking: 1 parking space per dwelling unit

v. Parking Area:

Up to 50 square metres of the rear yard may be used as an uncovered parking area.

vi. Minimum Driveway Width: 2.3 metres

vii. Projections into Front Yard:

Unenclosed porches, decks, balconies, steps, and/or verandas, covered or uncovered, shall be permitted to project 4.0 metres out from the main building wall, but not closer than 2.0 metres to the front lot line.

viii. Maximum Number of Bedrooms:

A maximum of 14 bedrooms is permitted, in the aggregate.

2. That this by-law shall come into force in accordance with the provisions of the Planning Act.

Given all Three Readings and Passed: [Meeting Date]

John Bolognone City Clerk

Bryan Paterson Mayor