Kay v. Kingston (City), 2022 CanLII 60861

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

July 4, 2022

OLT-22-002394

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

Applicant/Appellant

David Kay

Subject:

Application to amend the Zoning By-law – Refusal of application

Description:

Proposing to rezone the subject property to permit multi-residential use

Reference Number:

D14-001-2021

Property Address:

596 MacDonnell Street

Municipality/UT:

Kingston/Frontenac

OLT Case No:

OLT-22-002394

OLT Lead Case No:

OLT-22-002394

OLT Case Name:

Kay v. Kingston (City)

Heard:

June 21, 2022 by video hearing

Parties

Counsel

David Kay

Jacob Polowin

City of Kingston

Jenna Morley

MEMORANDUM OF ORAL DECISION DELIVERED BY D. ARNOLD ON JUNE 21, 2022 AND ORDER OF THE TRIBUNAL

1David Kay (the “Appellant”) is the owner of the property municipally known as 596 MacDonnell Street, Kingston (the “Subject Property”). The Subject Property is approximately 417 square metres in lot area, with a lot frontage on MacDonnell Street of approximately 10 metres and a two and a half storey single detached dwelling with a one storey rear addition is located thereon.

2The Appellant applied to the City of Kingston (the “City”) for a Zoning By-law Amendment to City of Kingston By-law 8499, as amended, to a site specific A5-617 Zone (the “ZBA”) to:

(a) Permit a three dwelling unit building in a zone which permits one and two-unit dwelling buildings, with modified performance standards;

(b) Recognize existing non-complying building/site attributes such as the existing side yard setback, driveway width, lot width and front yard setback;

(d) Increase the maximum allowable uncovered surface parking area in the rear yard; and

(e) Reduce the lot area minimum based on the number of proposed units.

3The City’s Council refused the ZBA and the Appellant appealed that decision to the Tribunal pursuant to s. 34(11) of the Planning Act (the “Act”).

4Prior to the Hearing, the Appellant and the City advised that a settlement had been reached in the Appeal and would be presented to the Tribunal.

5At the conclusion of the Hearing on June 21, 2022, the Tribunal rendered an oral decision approving the ZBA effective that date. This is the written memorandum of that oral decision.

EVIDENCE

6At the Hearing, the Appellant called one witness, Mark Touw, who was qualified by the Tribunal to provide expert opinion land use planning evidence. Mr. Touw’s Curriculum Vitae and Acknowledgement of Expert’s Duty were entered into evidence as Exhibits 1 and 2 respectively.

7The Tribunal heard Mr. Touw’s oral testimony and also received his sworn Affidavit of Evidence executed June 9 2022 and the Planning Justification Report dated January 2021 prepared by Mr. Touw and colleague Emma Stucke, and entered the latter documents into evidence in this proceeding as Exhibits 3 and 4 respectively.

8Mr. Touw provided expert professional land use planning opinion evidence at the Hearing as follows:

(a) The ZBA is consistent with the applicable Provincial Policy Statement (2020) and in particular the policy which speaks to the promotion of healthy, liveable and safe communities through the efficient use of land. In this regard, Mr. Touw noted that:

[T]he proposed development increases the number of dwelling units from one to three, thus providing additional housing units in an appropriate location and in a form that is compatible with the range of built form and density found in its context.

(b) The ZBA conforms to the City’s Official Plan. In this regard, Mr. Touw noted that the proposed development provides additional dwelling units within the Urban Boundary of the City and in an area where full municipal services are available. Moreover, the proposed development is located in proximity to public transit as well as institutional, educational, commercial, public and open space uses. The proposed development will contribute to achievement of the City’s target that 40% of new residential development occur through intensification and in a manner that conforms to the relevant land use compatibility policies.

(c) The modified performance standards of the ZBA pertain in large part to the recognition of existing non-compliances. Also, while the ZBA provides for an increase in the number of dwelling units, the height of the proposed building (9.9 metres) would be less than the maximum permitted height in the Zoning By-law (10.7 metres) and the existing building depth will remain unchanged as an upper floor addition would be constructed on the existing one storey at the rear of the building if the ZBA is approved. The requested parking space reduction is appropriate as the ratio of one parking space per dwelling unit (and reduced parking space length and increased allowable uncovered surface parking) minimize the inefficient use of land and are “consistent with other approved developments of a similar scale in the City” and the subject property’s proximity to public transit, commercial and other uses promotes the use of active and public transportation modes.

9It was Mr. Touw’s professional land use planning opinion that the ZBA has regard for matters of Provincial interest, is consistent with the PPS, conforms to the City’s Official Plan, and constitutes good land use planning.

FINDINGS

10Upon consideration of Mr. Touw’s Affidavit of Evidence executed June 9 2022 and the Planning Justification Report dated January 2021 prepared by Mr. Touw and colleague Emma Stucke (Exhibits 3 and 4 respectively) and Mr. Touw’s oral evidence, all of which was uncontroverted, the Tribunal finds that the ZBA is consistent with the Provincial Policy Statement, conforms to the City’s Official Plan and constitutes good land use planning. In this regard, the Tribunal has had regard for the matters of provincial interest set out in Section 2 of the Planning Act and the decision of the City’s Council in this matter.

11In addition to considering the ZBA, which would effect an amendment to Zoning By-law 8499, the parties initially requested that the Tribunal also consider issuance of a “companion” order which would amend a more recent “comprehensive” zoning by-law (2022-62) which was passed by the City’s Council but is not in force and effect as it is the subject of appeals pending before the Tribunal in other proceedings. The parties withdrew this request, however, upon further consideration that the jurisdiction of the Tribunal in this proceeding is solely with respect to the ZBA and proposed amendment to Zoning By-law 8499.

ORDER

12The Tribunal hereby Orders that the appeal is allowed, and By-law 8499 (the “Zoning By-law”) is amended as follows and the Tribunal authorizes the municipal clerk of the City of Kingston to assign a number to this By-law for record keeping purposes:

(a) Map 13 of Schedule “A” of the Zoning By-law is hereby further amended by changing the zone symbol of the subject site from “A5” to “A5.617”, as shown on Schedule “A” attached to and forming part of this Order; and

(b) The following Section 617 in Part VIII – Exceptions to the Various Zone Classifications, is added and forms part of the Zoning By-law as follows:

596 MacDonnell Street

Notwithstanding the provisions of Sections 5 and 11 hereof to the contrary, on the lands designated ‘A5.617’ on Schedule ‘A’ hereto, the following regulations shall apply:

a) Only Permitted Residential Uses:

i. One family dwellings

ii. Two family dwellings

iii. Multiple family dwelling containing three units

b) Minimum Front Yard Setback: 4.2 metres

c) Minimum Side Yard Setback for existing building: 1.1 metres

d) Minimum Lot Area: 417 square metres for a multiple family dwelling containing three units

e) Minimum Lot Width: 10 metres

f) Maximum Area of Uncovered Surface Parking in the Rear Yard: 41 square metres

g) Minimum Driveway Access Width: 2.6 metres

h) Minimum Parking Ratio: 1 parking space per dwelling unit

i) Minimum Parking Space Dimensions: 2.6 metres wide by 5.2 metres long

j) Maximum Building Depth: 14.7 metres

k) Maximum Number of Bedrooms (in the Aggregate): 8

l) For projections or balconies that are more than 1.2 metres in height above the finished grade, and are located on the west side of a dwelling, a privacy barrier of a minimum height of 1.5 metres shall be provided on the north side of each balcony or projection.

“D. Arnold”

D. ARNOLD

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.

SCHEDULE “A”