Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 12, 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
MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN and ORDER OF THE TRIBUNAL
1The matter before the Tribunal are two Motion Records. The first being brought by the City and the second by KHBA. Through the Motion Record, the City is requesting the Tribunal confirm that Official Plan Amendment No. 82 (“OPA 82”) came into effect on the day after the last day for filing a notice of appeal, being May 27, 2022, in accordance with the provisions of s. 17(27) of the Planning Act, with the exception of those which remain under site-specific appeal.
2The City’s Motion Record also included a request that the Tribunal deem Zoning By-law No. 2022-62 (“ZBL 2022-62”) to have come into force on the day that it was passed, being April 26, 2022, in accordance with the provisions of s. 34(31) of the Planning Act, with exceptions on the properties for which ZBL 2022-62 remains under site-specific appeal and except for those specific provisions that are subject to appeal.
3The second Motion is from the Appellant who sought an Order of the Tribunal approving modifications to the new Kingston Zoning By-law, being ZBL 2022-62, without prejudice to the appeal of the remaining Appellant Ewen MacKinnon.
4On August 5, 2022, counsel for the Kingston Home Builder’s Association indicated through correspondence to the Tribunal that the Appellant did not oppose the Motion.
5The City’s Motion Record was supported by the Affidavit of Laura Flaherty, Project Manager in the Planning Services Department at the City who provided written planning evidence to the Tribunal.
THE GROUNDS FOR THE CITY’S MOTION
6The Tribunal heard that on April 26, 2022, City Council passed OPA 82 which amends the in-force City of Kingston Official Plan. OPA 82 is comprised of two separate Official Plan Amendment applications from the City, which were combined into one implementing By-law:
The first part of OPA 82 enables ZBL 2022-62 to better implement the intent of the Official Plan policies, to implement the additional residential unit provisions of the Planning Act and to clarify existing policies. The amendments relate to tiny houses and additional residential units; places of worship and schools; protection of riparian corridors and the composition of the Environmental Protection Area designation; on-farm diversified uses and agriculture-related uses; complementary uses and outdoor storage within employment areas; delegated authority of certain types of zoning by-law amendments and various technical housekeeping amendments that do not affect the intent of existing policies.
The second part of OPA 82 implements the policy recommendations of the Central Kingston Growth Strategy (the “CKGS”) with respect to intensification areas identified through the CKGS. The amendment includes the creation of a new specific policy area to guide future development within the proposed intensification areas and provide greater clarity on compatible intensification as a new Section 10G., “Central Kingston Specific Policy Area”. A new Schedule CK-1 has been added showing the boundaries of the intensification areas identified in Section 10G., including one intensification area along the Johnson Street and Brock Street corridor with a maximum height of 6-storeys and a second intensification area along the Portsmouth Avenue corridor with a maximum height of 4-storeys.
7The Tribunal heard that on April 26, 2022, City Council passed ZBL 2022-62 which is a new city-wide zoning by-law largely intended to repeal and replace the existing zoning by-laws in the City of Kingston. ZBL 2022-62 restricts the use of land and the erection, location and use of buildings within the entire municipality of the City of Kingston, except for those lands identified as “Not Subject to this By-law” on Schedule 1 of ZBL 2022-62, the Zoning Map. Lands that are identified as “Not Subject to this By-law” will continue to be regulated by the existing, in-force zoning by-laws.
8The Tribunal heard that only two appeals of ZBL 2022-62 were filed. The appeal filed on behalf of Mr. MacKinnon is site-specific in nature. The appeal filed on behalf of the KHBA is scoped and only applies to five specific sections of ZBL 2022-62. There are no general appeals of ZBL 2022-62. Given that the majority of ZBL 2022-62 is not at issue in the appeals, the City stated it is good planning to have ZBL 2022-62 deemed to come into force on the day the by-law was passed, except on the properties for which ZBL 2022-62 remains under site-specific appeal and except for the specific provisions that are subject to appeal.
GROUNDS FOR THE APPLELLANTS MOTION
9The Appellant’s Motion was specific to provisions respecting minimum density in three exception zones; need for a higher density parent zone and a provision that applied a maximum number of bedrooms in low density residential zones within the urban area.
10The Appellant’s motion was supported by the Affidavit of Youko Leclerc-Desjardins, an Associate, Planning with Fotenn Planning + Design who provided written planning evidence in support of the Motion.
DISCUSSION AND ANALYSIS
11The City stated that the existing zoning by-laws that are currently in-force are legacies of the former townships and City of Kingston that predate amalgamation.
12It was noted that they were enacted in the 1970s and 1990s and are not reflective of Provincial Policy Statement, 2020 or the Official Plan, which came into force in 2010, with a five-year update completed in 2017. The City opined that they do not adequately protect resources, that they restrict certain types of housing and employment opportunities, and that they do not adequately prioritize appropriate transportation choices or investments in infrastructure in the City.
13The Tribunal having heard the background for OPA 82 and Zoning By-law No. 2022-62 the intent of which, Sections 21 and 22 (Legacy Exceptions and Exceptions) of ZBL 2022-62 is to carry forward site-specific exceptions that were approved following the adoption of the current City of Kingston Official Plan in 2010, the Tribunal recognizes that moving forward, these two instruments will be vital in providing guidance, conformity and consistency with provincial policy and direction.
ORDERS
14The Tribunal orders that the City of Kingston Official Plan Amendment No. 82 is approved and in full force and effect as of May 27, 2022, being the day after the last day for filing a notice of appeal, pursuant to subsection 17(27) of the Planning Act, save and except on the following properties for which OPA 82 remains under site-specific appeal and only insofar as the policies that were discussed in the appeal materials:
a. 188, 188 ½, 196, 198, 200, 202 and 204 Union Street West, and 149 and 159 Collingwood Street (being the lands under site-specific appeal by Mr. Ewen MacKinnon) and only insofar as they relate to the new Section 10G. “Central Kingston Specific Policy Area”, the new Schedule CK-1, the amendments to policy 2.4.3., the amendments to Schedule 13 (to delete Future Planning Study Area 13 and replace with a new Specific Policy Area 13 called the “Central Kingston Specific Policy Area”) and the deletion of policy 2.3.6. (being the policies that are subject to the site-specific appeal by Mr. Ewen MacKinnon).
15The Tribunal orders that Kingston Zoning By-law No. 2022-62 is approved and in full force and effect as of April 26, 2022, pursuant to subsection 34(31) of the Planning Act, save and except on the following properties for which Zoning By-law No. 2022-62 remains under site-specific appeal and except for the following specific provisions that are subject to appeal:
a. 188, 188 ½, 196, 198, 200, 202 and 204 Union Street West, and 149 and 159 Collingwood Street (being the lands under site-specific appeal by Mr. Ewen MacKinnon);
b. Section 21.1.1.E21.(a) (being the minimum density provision in the E21 Exception Zone subject to appeal by the Kingston Home Builders’ Association);
c. Section 21.1.1.E22.(a) (being the minimum density provision in the E22 Exception Zone subject to appeal by the Kingston Home Builders’ Association)
d. Section 21.1.1.E37.(a) (being the minimum density provision in the E37 Exception Zone subject to appeal by the Kingston Home Builders’ Association);
e. Clause 4.28.1. (being the maximum number of bedroom provision subject to appeal by the Kingston Home Builders’ Association); and
f. Subsection 12.7. and the corresponding URM6 column in Table 12.1.2. (being the Urban Multi-Residential Zone 6 (URM6) provisions subject to appeal by the Kingston Home Builders’ Association).
16The Tribunal orders that the coming into effect of the above portions of Official Plan Amendment No. 82 and Zoning By-law No. 2022-62:
a. shall be without prejudice to the rights of any party.
b. shall not have the effect of limiting the resolution of either Appellant’s appeal, or any party’s right to seek amendments to portions of Official Plan Amendment No. 82 and/or Zoning By-law No. 2022-62.
c. does not limit the jurisdiction of the Tribunal to consider and approve amendments to the unapproved portions of Official Plan Amendment No. 82 and/or Zoning By-law No. 2022-62; and
d. does not apply to any portion of Official Plan Amendment No. 82 or Zoning By-law No. 2022-62 that remains in issue in the appeals.
“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.