Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 26, 2022
CASE NO(S).: OLT-22-002157 (Formerly PL210292)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Amber Peak Developments Inc. Subject: Proposed Official Plan Amendment No. OPA 2021-62 Municipality: City of Kingston OLT Case No.: OLT-22-002157 Legacy Case No.: PL210292 OLT Lead Case No.: OLT-22-002157 Legacy Lead Case No.: PL210292 LPAT Case Name: Amber Peak Developments Inc. v. Kingston (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Amber Peak Developments Inc. Subject: By-law No. 2021-63 Municipality: City of Kingston OLT Case No.: OLT-22-002158 Legacy Case No.: PL210298 OLT Lead Case No.: OLT-22-002157 Legacy Lead Case No.: PL210292
Heard: June 8 and July 21, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Amber Peak Developments Inc. | Michael Polowin and Carolina Campos |
| City of Kingston | Tony Fleming and Spencer Putnam |
DECISION DELIVERED BY SHARYN VINCENT AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Through its decision dated November 10, 2021, the Tribunal allowed all but two aspects of the Motion brought by the City of Kingston (“City”) to dismiss the appeals of Amber Peak Development Inc. (“Appellant”) against OPA 74 and seven area specific zoning by-laws all of which had the effect of revising the zoning provisions applying to permitted, additional residential units (“ADU”) as required by the Planning Act and, as contemplated, subject to certain standards and regulations.
2It was the Order of the Tribunal, differently constituted, that the question as to whether appeals related to the height of an ADU in a detached structure are statute barred under s. 34(19.1) of the Planning Act, was to be determined at a hearing of merit.
3The Parties had agreed prior to determination of the Motion that the appeals related to the regulation of the number of bedrooms was to similarly be determined on the basis of a full hearing.
4It was further determined, that given the substantive legal argument expected to address the City’s contention that the appeals directed against ADUs are statute barred pursuant to s. 34(19.1), final argument would be written.
5The parties complied with the filing dates established at the conclusion of the viva voce evidence heard and considered by this panel of the Tribunal.
6This decision sets out the reasons supporting the Tribunal’s finding that neither of the regulations which limit the height of a detached ADU or number of bedrooms in aggregate in low density zones in any way preclude the mandated permission to enable the creation of ADU pursuant to the Planning Act, and are not inconsistent with the Provincial Policy Statement, or the municipality’s authority pursuant to s. 34 of the Planning Act. The appeal of these aspects of the By-laws No. 2021-63, 2021-64, 2021-65, 2021-66, 2021-67, 2021-68, and 201-69 is therefore dismissed
LIMITING THE AGGREGATE BEDROOM COUNT ON A LOW DENSITY RESIDETIAL LOT
7It is the position of the Appellants that limiting the overall number of bedrooms is not explicitly permitted by the Planning Act, and citing R v.Bell, 1979 CarswellOnt 579 (SCC) argued that such restrictions were ultra vires in that it represents people zoning, further, does not constitute good planning as it could potentially impact on the accommodation of extended or large families or protected groups, and conflicts with the provisions of the Municipal Act which provide for the establishment of minimum bedroom sizes through the Ontario Building Code.
8The City maintains the position that setting an aggregate number of bedroom units was in fact an appropriate and lawful form of regulation to manage the intensity of activity on any given lot in a low density residential area to maintain the desirable stability of these neighbourhoods, while still addressing the provincial interest of creating a range and mix of appropriate housing options, and explicitly ADUs. The City comes to the limit of an aggregate of 8 bedrooms, to be distributed between the principle and additional residential unit on a site by site basis as provided for under the underlying zoning governing lot coverage, set backs, height, etc, through an analysis of the data source drawn from the Municipal Property Assessment Corporation (“MPAC”) which records amongst other household characteristics, the number of bedrooms in a dwelling unit.
9The Appellants challenged the accuracy of the data source but offered no alternative or evidence to support the challenge.
10The analysis carried out by the City found that the average household size in the City ranges from 1.6 to 3.0 persons depending on the neighbourhood. Significantly, only 5.4% of households are comprised of 5 or more persons.
11The data also offers the following insights: of the properties within areas affected by the impugned Bedroom Limit, which are developed with single-detached, semi-detached, rowhouse or duplex dwellings, 95.25% have four or fewer bedrooms, and less than 0.1% have eight or more bedrooms.
12The Tribunal, given the fundamentally unchallenged characterization of the context, is therefore not persuaded that the aggregate bedroom limit will adversely affect the creation or realization of ADUs as mandated under the Planning Act.
13The evidence of Mr. Youko LeClerc-Dejardin, who was qualified to assist the Tribunal with opinion evidence in areas of land use planning, raised a number of apprehensions in support of the appeal which were simply not supported by the facts. Limiting the aggregate number of bedrooms will function but as one of numerous performance standards governing the built form to be realized on any given lot as is expressly contemplated, and protected in s. 34(19.1) of the Planning Act, and the number of bedrooms is not, in or of itself determinative.
14The Tribunal is similarly not persuaded that the aggregate limit offends the PPS, but rather prefers the evidence of the City’s Planning witness who was responsible for the derivation of the revisions to the various by-laws in effect since 2013, which included reflection upon the impacts and experience gained from reviewing ADUs built under the zoning permissions which did not limit the intensity of use other than through maximum built form. It is the evidence of this qualified witness that the aggregate bedroom limit is supported by contextual analysis to derive a reasonable path to manage intensity as a means towards ensuring compatibility while accommodating ADUs.
15The Tribunal is satisfied, agrees and finds that the provision represents good planning, is not precluded by s. 34, and in fact is barred from appeal pursuant to s. 34 (19.1) of the Planning Act.
LIMITING THE HEIGHT OF DETACHED ADUs TO THAT OF OTHER ACCESSORY STUCTURES
16The by-law revisions also amend the maximum height of an ADU in a detached structure to be no more than the prevailing height of accessory structures and set at a maximum of 4.6 m. Previously detached ADUs had been allowed to the same height allowable as the principle detached structure, even if not fully realized by the original house. For example, a two storey detached ADU could be constructed even if the principle structure was only one storey. Photographic examples of this built form outcome, and variations thereof, were filed for the consideration of the Tribunal.
17ADUs are to be permitted as limited intensification in stable residential neighbourhoods, the characteristics of which are set out in Official Plan policies intended to protect such neighbourhood features including established patterns of activity, a cohesive streetscape and massing.
18The height limit is directed at limiting increased shadowing and overlook issues arising from two storey accessory structures. While Mr. LeClerc-Dejardin contends that such relationships are to be expected in urban neighbourhoods, the introduction of habitable accessory structures is a relatively recent phenomenon in stable residential neighbourhoods, the use of which affects not only the occupants of the lot upon which it is constructed, but also the established use and enjoyment of all abutting properties.
19Limiting potential adverse impacts through performance standards such as a height limit is specifically contemplated by and conforms to the Official Plan policies and the directives of the PPS to accommodate appropriate and compatible intensification.
20The Tribunal finds that reducing the height limit to align with what is otherwise expected as an accessory structure is a reasonable and well founded solution, and a standard falling under the protection of s 34(19.1) of the Planning Act.
THE CHALLENGE OF PEOPLE ZONING
21On the issue of whether the bedroom limit amounts to ‘people zoning’, the Tribunal finds that there has been no credible evidence proffered to support the criticism. The height limit is not germane to this argument.
22The testimony of the City’s witness, Ms. Agarwal that the revisions did not in any way discriminate against any group, protected or otherwise, was unshaken, and the Tribunal has found that the recommended zoning revisions conform to the Official Plan policies to protect stable residential neighbourhoods while accommodating compatible infill.
CONFLICT WITH BUILDING CODE ACT
23Again the apprehension of a potential for conflict in regulating the bedroom count through zoning was advanced by the Appellant but not founded in the evidence put before the Tribunal. The regulations under the Building Code Act which dictate standards of construction and building safety are in no way frustrated by the zoning restriction on the number of bedrooms. The zoning provision will simply function in parallel to the determination of zoning compliance and processing of permits by the Building department.
ORDER
23THE TRIBUNAL ORDERS that the appeals by Amber Peaks Developments Inc. are herein dismissed.
“Sharyn Vincent”
SHARYN VINCENT
VICE-CHAIR
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.