Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 13, 2022

CASE NO(S).: OLT-22-003936

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Ewen MacKinnon Subject: Proposed Official Plan Amendment Description: OPA 82 - Update to City of Kingston OP Reference Number: OPA 82 Property Address: (City-wide) Municipality/UT: Kingston/Frontenac OLT Case No: OLT-22-003936 OLT Lead Case No: OLT-22-003936 OLT Case Name: MacKinnon v. Kingston (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Kingston Home Builder’s Association Appellant: Ewen MacKinnon Subject: Zoning By-law Description: By-law 2022-62 - New Comprehensive Zoning By-law for the City of Kingston Reference Number: BL 2022-62 Property Address: (City-wide) Municipality/UT: Kingston/Frontenac OLT Case No: OLT-22-003937 OLT Lead Case No: OLT-22-003936

Heard: September 28, 2022, by Video Hearing

APPEARANCES:

Parties	Counsel
Kingston Home Builders Association (“KHBA/Appellant”)	Eileen Costello, Naomi Mares, co-counsel
City of Kingston (“City”)	Jenna Morley

DECISION DELIVERED BY D. CHIPMAN and ORDER OF THE TRIBUNAL

1On September 29, 2022, the Ontario Land Tribunal held a Settlement hearing related to KHBA appeal of Comprehensive Zoning By-law Amendment No. 2022-62 (“By-law”). KHBA represents the Kingston area’s residential building industry including builders, developers, renovators, suppliers, trades and professional services. KHBA members own lands and/or have various interests across the City, all of which were impacted by the passing of the By-law.

2The Association submitted an appeal on behalf of its membership pursuant to Section 34 of the Planning Act in respect of the following provisions in Zoning By-law No. 2022-62:

a. Minimum density provision in the E21 Exception Zone (section 21.1.1.1.E21)

b. Minimum density provision in the E22 Exception Zone (section 21.1.1.1.E22)

c. Minimum density provision in the E37 Exception Zone (section 21.1.1.1.E37)

d. Maximum number of bedrooms as set out in Clause 4.28 (being the maximum number of bedrooms provision; and

e. Subsection 12.7. (being provisions of the Urban Multi-Residential Zone 6 provisions, which includes the corresponding URM6 column Table in section 12.1.2).

3Prior 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.

Evidence

4Both the City and the Appellant filed written Affidavits in support of the Settlement. Laura Flaherty, a Land Use Planner, Project Manager on behalf of the City and Youko Leclerc-Desjardins, a qualified Planner with Fotenn Planning + Design on behalf of the Appellant.

5The Tribunal heard the Appellant’s issues centered on the provisions respecting minimum density in three exception zones.

6The Appellant identified a need for a higher density parent zone that would provide a framework for consideration of future development applications. The Appellant had also appealed a provision that applied a maximum number of bedrooms in low density residential zones within the urban area.

7Ongoing discussions between the City and the Appellant and their representatives resulted in a proposed Settlement which was approved by City Council in a closed session on August 9, 2022.

8In his submission, Mr. Leclerc-Desjardins stated that the amendments proposed in the Settlement conform with the Planning Act as the proposed modifications to the By-law are consistent with matters of provincial interest as identified in Section 2 of the Planning Act, and in particular sections: 2(h) respecting the orderly development of safe and healthy communities, 2(j) respecting the adequate provision of a full range of housing, 2(n) respecting the resolution of planning conflicts involving public and private interests, 2(p) respecting the appropriate location of growth and development and 2(q) respecting the promotion of development that is designed to support public transit.

9The proposed modifications are consistent with the Provincial Policy Statement, 2020 (“PPS”) by providing intensification that is sensitive to the available servicing as well as servicing constraints, and sensitive to the existing building stock in the community, is consistent with the policy direction in the PPS, which supports effective residential intensification and redevelopment.

10The proposed revisions to the E21, E22, E37, and H196 overlays in the New By-law address the provincial policy direction to provide a range of housing options and support the supply of housing. The proposed revisions to the By-law support homeowner’s creation of additional residential units as a means of increasing density within a built form that is consistent with prevailing neighbourhood character.

11The Tribunal heard that the proposed revisions to the By-law would facilitate a gentle and efficient residential intensification that offers a range of housing affordability. The proposed reduction to the minimum densities allows for a variety of housing options.

12Two of the exception zones identified above (E21 and E22) are located within the Low and Medium Density Residential designations of the Cataraqui West Secondary Plan (“Secondary Plan”), respectively. The Secondary Plan specifies an overall density of development ranging from 14 to 45 dwelling units per net hectare in the E21 zone and 25 to 75 units per net hectare in the E22 zone. The proposed revisions to the By-law reduce the minimum densities in these zones from 37.5 to 30 dwelling units per net hectare, and 50 to 37.5 dwelling units per net hectare respectively, so that the minimum densities more accurately correspond to the permitted range in these zones and can be achieved with a built form that is consistent with the prevailing neighbourhood character.

13Exception zone E37 is subject to Section 2.4.4. in relation to minimum density requirements. The proposed revision to the By-law is to reduce the minimum density in this zone from 37.5 to 27 dwelling units per net hectare conforms to the minimum density of 22 units per net hectare in section 2.4.4.a.

14It was noted that as a condition of the Settlement, KHBA agreed to withdraw the portion of its Appeal related to Urban Multi-Residential Zone 6 (URM 6) in the Kingston Zoning By-law 2022-62. This withdrawal is in recognition of the City of Kingston’s assurance that the Appellant’s request to establish a new higher density parent zone will be addressed in the multi-year Municipal Comprehensive Review to be initiated in 2023.

15It was presented to the Tribunal that all revisions to the By-law, represent good planning and are in the public interest.

16Ms. Flaherty’s written affidavit concurred with the evidence provided by Mr. Leclerc-Desjardins.

FINDINGS

17On the Settlement of the Parties and the uncontested written evidence of both Ms. Flaherty and Mr. Leclerc-Desjardins, the Tribunal finds that the Zoning By-Law Amendment satisfies all statutory requirements: suitable regard for provincial interests; consistent with the PPS; conforms with the OP as amended; and represent good planning in the public interest for the City.

ORDER

18The Tribunal hereby Orders that the appeal is allowed, and Zoning By-law No. 2022-62 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:

19Zoning By-Law Number 2022-62 of The Corporation of the City of Kingston, entitled “Kingston Zoning By-law Number 2022-62”, is amended as follows:

a. Paragraph E21 in Clause 21.1.1. is amended as follows:

(a) subparagraph (a) is amended by deleting the figure “37.5” in the third line thereof and replacing it with the figure “30.0”;

b. Paragraph E22 in Clause 21.1.1. is amended as follows:

(a) subparagraph (a) is amended by deleting the figure “50.0” in the third line thereof and replacing it with the figure “37.5”;

c. Paragraph E37 in Clause 21.1.1. is amended as follows:

(a) by deleting subparagraph (a) in its entirety and replacing it with the following:

(a) The minimum density of dwelling units per net hectare on lands with residential uses, excluding lands used for roads, stormwater management, public walkways, parks or open spaces, is 27.0 dwelling units per net hectare. The minimum density applies in the aggregate across all lands subject to this Exception, not to individual lots;

(b) by adding the following as subparagraph (d):

(d) Definition:

ARU Ready Space means:

(1) Indoor floor area within a residential building on a lot created through a plan of subdivision that has been designed to be easily retrofitted with an additional residential unit, with:

a. required parking spaces provided for both the principal dwelling unit and future additional residential unit in place; and

b. sufficient unobstructed exterior area to provide the required walkway for the future additional residential unit;

(2) where “easily retrofitted with an additional residential unit” means that all of the following are provided:

a. plumbing “rough-ins” for a minimum of one bathroom and one kitchen;

b. windows in conformity with egress requirements in the Ontario Building Code; and

c. required electrical and telecommunication fixtures and wiring; and

(3) where the developer of such residential building provides a homeowner’s handbook with the initial sale of the property, which includes conceptual floor plan(s) illustrating how the space in the residential building can be converted to establish and function as an additional residential unit. Such conceptual floor plan(s) can be used to inform the application for building permit(s) required to support the development of an additional residential unit in the future.

Note: ARU Ready Spaces are considered a dwelling unit for the purpose of calculating the minimum density required by this Exception.

d. Paragraph H196 in Clause 22.1.1. is amended by adding the following as subparagraph (c) thereof:

(c) A condition of the subdivision agreement executed by the City must require the owner to provide a homeowner’s handbook with the sale of the residential buildings containing ARU Ready Spaces, which includes conceptual floor plan(s) illustrating how the ARU Ready Space can be converted to establish and function as an additional residential unit. Such conceptual floor plan(s) can be used to inform the application for building permit(s) required to support the development of an additional residential unit in the future.

“D. Chipman”

D. CHIPMAN 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.