Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 10, 2023

CASE NO(S).: OLT-21-001478

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

Appellant: Douglas Harris

Applicant: 12353865 Canada Inc.

Subject: Zoning By-law

Description: To permit the construction of a 78 unit apartment building

Reference Number: ZBA 2021-147

Property Address: 7 Mount Forest Avenue

Municipality/UT: Kincardine/Bruce

OLT Case No.: OLT-21-001478

OLT Lead Case No.: OLT-21-001478

OLT Case Name: Harris v. Kincardine (Municipality)

Heard: December 12, 14, 15, 2022 by video hearing

APPEARANCES:

Parties Counsel*/Representative

Douglas Harris ("Appellant") Self-represented

12353865 Canada Inc. ("Applicant") Mark Donald*

Municipality of Kincardine Tammy Grove-McClement* Monica Poremba*

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

1Douglas Harris ("Appellant") has appealed Zoning By-law Amendment ("ZBLA") No. 2021-147, which was approved by the Council of the Municipality of Kincardine ("Municipality") on September 18, 2021, which would permit lands known as 7 Mount Forest Avenue ("Subject Lands") to be redeveloped to accommodate a 78-unit, three storey apartment building.

2A concurrent application to sever an approximately 487.7 square metres ("m2") parcel containing the existing dwelling from the Subject Lands was approved in 2021 ("Retained Lot"). As a result of the approval of the consent the Subject Lands now comprise of 1.37 hectares ("ha"). The Retained Lot contains a single detached dwelling, proposed to be retained and maintained for residential purpose. A barn and accessory storage building was demolished in 2021.

3The purpose and effect of the ZBLA application is proposed to rezone the Subject Lands from 'Residential One (R1)' and 'Environmental Protection (EP)' to a special 'Residential Four (R4)' zone to permit the multiple-unit residential dwelling.

4The Retained Lot that was severed from the Subject Lands, which was identified as the single-family dwelling to the west of the Subject Lands will remain zoned R1 and the surrounding lands to the far east and west will remain zoned EP.

5Further, a special provision is proposed for the Subject Lands to allow the parking area to be 5 metres ("m") from the street line, which is a reduction from the 7.5 m front yard setback required in the current zoning for an R4.

6In addition, a further special provision is proposed for the Subject Lands to allow for a minimum rear setback of 9 m, which is more than the current R4 zone setback requirement of 7.5 m.

7A holding provision is included which will be removed upon a site plan agreement being entered into between the Municipality and the Applicant as well as the completion of the design for the intersection of Queen Street and Mount Forest Avenue and the road improvements necessary for Mount Forest Avenue to facilitate the proposed development.

BRIEF CHRONOLOGY OF THE APPLICATION

8The Applicant submitted an application to amend Zoning By-law 2003-25 in February 2021. In support of the application there were several technical reports including: Planning Justification Brief, Conceptual Grading and Servicing Plan, Preliminary Elevations, Stage 1 and 2 Archaeological Assessment, Transportation Impact Study, and a Preliminary Stormwater Management Letter.

9In June 2021, the Applicant submitted a revised site plan that removed portions of the proposed footprint of the easterly building from the regulated area of the Saugeen Valley Conservation Authority ("SVCA") and merged the two originally proposed buildings into one building. The revised building remained at three storeys and contained 78 dwelling units made up of four, one-bedroom units, 65, two-bedroom units and eight, three-bedroom units.

10On July 12, 2021, the Municipality held a statutory public meeting. An information report, prepared by County of Bruce Planning Staff, was presented at the meeting. The information report described the application, summarized the supporting documentation provided by the Applicant, summarized public and agency comments received at that time and described issues to be considered in the evaluation of the applications. These issues dealt with: natural hazards and natural heritage, traffic, compatibility, flight plan safety related to the Hospital's helipad, housing, efficient use of lands and resources and stormwater management. At the conclusion of the meeting the Planning Staff were directed to provide a report regarding the public meeting and a recommendation regarding the application at a subsequent meeting.

11On August 9, 2021, a recommendation report prepared by County of Bruce Planning Staff was presented at the meeting of the Municipality's Committee of the Whole. The recommendation report included the following recommendation: That Zoning By-law Amendment application z-2021-019 be approved as attached and the necessary Zoning By-law be forwarded to Council for adoption. A motion to adopt the above-noted recommendation was defeated. As noted in the meeting minutes after hearing from the delegation, the Committee of the Whole inquired about the future connection of Mount Forest Avenue to the Ontario Peninsula Farms ("OPF") lands, fire safety concerns, landscape concerns, traffic and road work required, questions regarding Traffic Impact Study and compatibility.

12On September 8, 2021, a staff report prepared by Municipality Staff was presented at a meeting of the Municipality's Council. The staff report provided additional information related to the servicing and traffic issues matters raised at the meeting. As well, the staff report advised that a decision on the application was required from Council not the Committee of the Whole.

13At the September 8, 2021 Council meeting, ZBLA No. 2021-147 was adopted.

14On September 18, 2021, a Notice of Passing ZBLA No. 2021-147 was issued by the Municipality. On October 5, 2021, the Appellant filed a notice of appeal to the adoption of ZBLA No. 2021-147.

HEARING

Witnesses

15The Tribunal heard from Allan Ramsay who was affirmed and qualified on consent by the Tribunal to provide expert testimony in land use planning, on behalf of the Appellant.

16Daniel Kingsbury, a senior planner for the County of Bruce, was affirmed and qualified on consent to provide expert testimony in land use planning, on behalf of the Municipality. Adam Weisher, Director of Infrastructure and Development for the Municipality was also called as a witness.

17Robert Dyck was called as a witness for the Applicant as he was retained by the Applicant to assist with the application and to prepare/design the proposed development. Mr. Dyck was affirmed and qualified on consent to provide expert testimony in architecture and engineering.

Agreed Statement of Facts

18Both land use planning witnesses Mr. Kingsbury and Mr. Ramsay provided an Agreed Statement of Facts ("ASF") dated November 21, 2022, which is reproduced below:

Planning Considerations

1. The Site Plan prepared by Robert L Dyck Architect and Engineering Inc., dated June 21, 2021, is illustrative of the proposed development.

2. Conformity with the policies of the County of Bruce Official Plan is not in dispute.

3. On October 20, 2022, the County of Bruce adopted Official Plan Amendment C-2022- 012-1("OPA 12-01"). A Notice of Adoption for OPA 12-1 was issued on October 31, 2022. OPA 12-1 is subject to final approval by the Minister of Municipal Affairs and is not yet in effect. The policies of OPA 12-1 are informative, but not determinative of the matters before the Tribunal.

4. The following is the walking distance and walking time from the Subject Lands to the following community, shopping and school facilities:

(i) Community Facilities under a 10-minute walk (800 m)

A. Hospital 300 m

(ii) Community Facilities within a 10-to-20-minute walk (800-1600 m)

B. Grozelle Park 900 m

C. Tim Hortons (Queen St) 1000 m

D. Alps Park 1000 m

E. Riggin Park 1000 m

F. Connaught Park 1500 m

G. Downtown (Queen St./Lambton St.) 1400 m

(iii) Shopping Facilities within a 20-to-40-minute walk (1600 – 3200 m)

H. No Frills 1800 m

I. Sobeys 2900 m

(iv) Schools Facilities within a 20-to-40-minute walk (1600 – 3200 m)

J. Kincardine District HS 1700 m

K. Kincardine Primary School 2700 m

L. Elgin Market French School 3000 m

M. Huron Heights HS 3200 m

(v) Community Facilities within a 20-to-40-minute walk (1600 – 3200 m)

N. Davidson Centre 2200 m

SUBJECT LANDS AND SURROUNDING AREA

19The Subject Lands are approximately 1.37 ha (3.5 acres) in size with approximately 220.2 m of frontage on Mount Forest Avenue. The Retained Lot currently contains a single detached dwelling. On the Subject Lands a barn, and accessory storage building have since been demolished. A portion of the Subject Lands are within the SVCA regulation limit.

20A single detached dwelling with a deep rear yard is located to the immediate south. These lands are owned by the Appellant.

21Institutional uses are located to the immediate north, including the administrative offices of 'Women's House Serving Bruce & Grey' ("WH"), as well as a structure used for overnight accommodations by clients of WH. The 'South Bruce Grey Health Centre – Kincardine' ("Hospital") are also located immediately to the north of the Subject Lands, including a helipad used primarily by Ornge.

22The eastern portion of lands are affected hazard lands characterized by a steep slope with an intermittent watercourse at the bottom of the slope. Beyond the hazard lands is a large open field, which is currently cropped. These lands are commonly referred to as the OPF which are approximately 114.28 hectares in area. They are predominantly designated Residential, Natural Environment and Business Park by the Municipal Official Plan ("KOP").

23The western side of the lands abut two vacant parcels, as well as two semi-detached dwelling structures (containing a total of four units). These dwelling units have frontage on Queen Street.

LEGISLATIVE TEST

24In making a decision with respect to a Zoning By-law Amendment, the Tribunal must consider s. 24(1) of the Planning Act ("Act"), which states:

24(1) Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.

PLANNING EVIDENCE

25Mr. Dyck called on behalf of the Applicant, provided a conceptual landscaping screening plan drawing titled 'L1.1 dated September 18, 2020', from his Justification Report (see below). Mr. Dyck advised he co-authored the Justification Report from the beginning with Amanda Stelling. Mr. Dyck advised he had worked with her, who he described as a professional planner, in the past and most recently in Kincardine regarding a senior's residence. On cross examination, Mr. Dyck acknowledged he was the lone signatory of the Justification Report and that Ms. Stelling was not a witness to the Hearing and did not provide any testimony with regards to the report. Mr. Dyck emphasized this was a conceptual plan only and the Site Plan Control stage would be a more defined plan.

PROVINCIAL POLICY STATEMENT ("PPS")

26Mr. Ramsay called on behalf of the Appellant, highlighted section 1.1.3.2 of the PPS concerning land use patterns in settlement areas which shall be based on a mix of land uses and opportunities for intensification and redevelopment. Mr. Ramsay notes the words "where it can be accommodated," and contends the proposed development will result in an intensification and development that cannot be accommodated on the Subject Lands without adverse privacy and overlook impacts on nearby residents. Further, the compact urban form and large building mass of the proposed development is not appropriate in an area that is defined by small, low-rise development (Section 1.1.3.2).

27In regard to section 1.4.3 concerning housing requiring a mix of housing options and densities, Mr. Ramsay testified the proposed development contributes additional housing and satisfies several of the policy directions in Section 1.4.3 of the PPS. The proposed development provides a compact and intensified built form that will utilize existing infrastructure. However, the proposed development could provide a greater mix of housing choice by providing more three-bedroom units. Three-bedroom units would accommodate the needs of larger households.

28In Mr. Ramsay's opinion ZBA No. 2021-147 is not consistent with Section 1.1.3.2, 1.1.3.3, 1.1.3.4 and 1.4.3 of the PPS.

29Mr. Kingsbury cited section 1.1.3.2, stating that this section encourages infill in designated settlement areas; the development represents an infill and intensification opportunity within the Municipality's built-up area and it will contribute to the efficient use of the land and infrastructure and result in a greater mix of residential land uses.

30Mr. Ramsay conceded that the development offers mixed housing forms as per section 1.3.4, however the number of three-bedroom apartments could be more. Mr. Kingsbury testified that the Town wants growth and a mix of housing forms and types.

31Mr. Kingsbury advised that in reference to settlement areas, the Subject Lands are to be serviced by water and sanitary sewer infrastructure on Mount Forest Avenue. The proposal utilizes vacant lands that are designated by the KOP for residential uses.

32Mr. Kingsbury opined that the surrounding area consisted of a mix of land uses. The Retained Land that contains a single detached dwelling immediately to the west, institutional uses located to the immediate north, beyond the hazard lands is a large open field (OPF), the western side of the Subject Lands abuts two vacant parcels, as well as two semi-detached dwelling structures.

33Mr. Dyck testified the operation of the helipad and surrounding lands are regulated by Transport Canada. Development of the proposed apartment building is subject to Transport Canada regulations. It has been confirmed that the placement of the proposed apartment building is outside the flight path of the helipad.

34In regard to housing, Mr. Kingsbury advised the proposed development will contribute to the Municipality's supply of high-density residential dwelling types to meet current and future housing needs. The policies of the PPS outline that reduced development standards may be considered for development that is compact in form in an effort to minimize cost. In Mr. Kingsbury's opinion, the proposal is consistent with the PPS policies related to housing.

35According to Mr. Kingsbury the proposed development is representative of intensification and will be serviced by full municipal services. The application was supported by a Preliminary Stormwater Design Letter as well as a Conceptual Grading and Servicing Plan. The stormwater runoff generated from the site will be captured, retained and attenuated on site, prior to discharge to the proposed storm sewer system along Mount Forest Avenue.

36A Stage 1 and 2 Archaeological Assessment Report was submitted in support of the proposed development. The Assessment resulted in the identification and documentation of no archaeological resources. The Assessment further recommended no further archaeological assessment of the Study Area is required on the Subject Lands.

37Mr. Kingsbury advised that the proposed ZBLA, and the proposal is consistent with the PPS.

38Mr. Dyck testified that as the proposed development will provide an alternative form of housing within a designated settlement area, and can be serviced by municipal services, it is his opinion that the proposal is consistent with the PPS policies respecting residential growth within a serviced municipality.

COUNTY OF BRUCE OFICIAL PLAN ("COP")

39In the ASF, the Parties acknowledge in paragraph two conformity with the policies of the County of Bruce Official Plan ("COP") is not in dispute and the application conforms to the COP. Mr. Kingsbury also opined on conformity with the COP.

40Mr. Kingsbury testified the development is in the public interest and is not premature, particularly given Kincardine's anticipated growth over the next 25 years. The recently completed Discussion Paper, Bruce County Growth Management Plan, titled 'Plan the Bruce: Good Growth', forecasts the Municipality to grow by 3,700 people by the year 2046. The resulting population is anticipated to be housed in a variety of housing forms, including apartments. Kincardine is anticipated to need 475 additional apartment units by the year 2046 to house its future residential growth. The proposed apartment building, containing 78 units, will contribute to the supply of apartment units needed to accommodate Kincardine's residential growth.

41Both Mr. Ramsay and Mr. Kingsbury testified the Discussion Paper, titled 'Plan the Bruce: Good Growth' is informative but not determinative.

42Mr. Kingsbury testified the proposed density of 56.6 units per hectare ("uph") is within the range permitted. Mr. Kingsbury advised this is on the low end of the scale for high density, with the ceiling being 95 uph. He also confirmed that the minimum density of 15 uph is achieved and that the lot is serviced by municipal services. He confirmed the school board could provide busing services. He confirmed no natural heritage features are impacted and a stormwater management plan has been incorporated into the design.

43Mr. Kingsbury's evidence was that the proposed development did in fact conform to the COP. He testified that the property is designated as "Residential" and a portion "Natural Environment" and that the "Residential" designation allows for low, medium or high-density uses. According to Mr. Kingsbury, the development assists Kincardine as per D1.4.8 with meeting the target for density, which is 5% for high-density, as well as the target for tenure, which is 30% for rentals.

44Mr. Kingsbury submits the Municipality is a Primary Urban Community and development of the Subject Land with a high-density apartment development is aligned with many of the Population and Housing Objectives of the COP. The proposed development will add to the range of housing types to meet the broad range of needs of the County of Bruce's residents. The proposed development is cohesive and is unlikely to have undue impacts on the social or natural environment. The application was circulated to Saugeen Ojibway Nation and the Historic Saugeen Metis. Historic Saugeen Metis provided comments indicating no objection to the proposed development.

45Mr. Dyck testified the lands are designated as 'Primary Urban Community', according to the COP, which permits a variety of uses, including residential, and are intended to reflect areas that can accommodate anticipated growth within the County of Bruce. As such, it is his opinion that the proposed development conforms to the COP respecting residential uses within a 'Primary Urban Community'.

MUNICIPALITY OF KINCARDINE OFFICIAL PLAN ("KOP")

46Mr. Ramsay highlighted several sections of the KOP in regard to whether the proposed planning approval involving the rezoning of the severed lot to allow for the construction of a high-density development (R4) does comply with KOP; specifically, he highlighted the following policies:

• Compatibility – compatibility to the existing land use in the immediate area and accessed from the intersection leading to the institutional (WH) and health care operations (hospital & medical clinic). (KOP Policy D.1.5.1 (a))
• Profile/height – profile/height of development is greater than the 2-storey adjacent buildings and low-density residential (R1) maximum of 10.5 metres (KOP Policy D.1.5.1 (b))
• Proximity to community services – the development is not close to shopping, schools, recreational area thus requiring occupants to require a car (KOP Policy D 1.5.1 (f))
• Buffering/landscaping plan and open space – the existing landscaping plan is deficient in terms of fencing, trees and landscaping to provide privacy for the adjacent residential properties and the Women's House. Insufficient green space has been provided to the occupants of the development (KOP Policy D 1.5.1 (d), (e)).

47Mr. Dyck testified, that prior to development on the lands, a Site Plan Control application will need to be submitted to, and approved by, the Municipality detailing elements of the development related to building location, access and parking, and landscaping. It is proposed that the development would occur in phases, which would be detailed at the site plan control stage.

Compatibility

48Mr. Ramsay highlighted section D1.5.1 a) of the KOP, compatibility with existing land use in the immediate area, historical significance of existing buildings, the nature of the residential area. Mr. Ramsay contends compatibility is not a defined term in the KOP. In his experience compatibility means land uses that can co-exist in harmony with one another without undue, adverse impacts. According to Mr. Ramsay the proposed development is not compatible with the surrounding land uses. The proposed development will result in undue, adverse privacy and overlook issues for the abutting property at 1183 Queen Street. As well, there are privacy issues related to the WH located on the north side of Mount Forest Avenue. Mr. Ramsay contends the occupants of the WH have special needs for privacy.

49Mr. Kingsbury testified the Subject Lands are designated Residential on Schedule 'A'. The 'Residential' designation does not distinguish between low, medium and high-density designations. According to Mr. Kingsbury the proposed development provides a high density that is adequately buffered from surrounding land uses, including adjacent residential uses. The proposed housing form will assist the Municipality in achieving their objective of providing for a good mix of housing forms required to meet the needs of current and future residents.

50According to Mr. Kingsbury the proposed development will assist the Municipality in achieving its target 5% of new development to be High Density. Likewise, it will contribute to the Municipality's goal of 20% of new development to be through infill and intensification. The proposed development achieves a density of 56.6 units per hectare. The development will also help the Municipality reach its goal of increasing the overall density throughout the 'Residential' designation to 15 units per hectare.

51The area surrounding the lands contain a mix of different land uses, including residential and institutional to the north, residential to the west and south, and environmental lands to the east. The two most affected properties to the proposal are the lands immediately to the north, which contain the WH, as well as the lands to the south which contain a single residential dwelling on a 1.62-hectare parcel (Appellant's lands).

52Mr. Kingsbury opined that this is not a case of overdevelopment. This is a low-rise walk up three storey building, which is allowed as of right in an R1 zone. Mr. Kingsbury advised in this case, the evidence revealed that the building is well under the lot coverage of 45%. Upon a review of the ZBLA, if the lands zoned as EP are excluded, the lot coverage would still fall well below the maximum lot coverage permitted (approximately 24.71%). It therefore remains significantly under the permitted 45% for an R4 zone and under 40% for an R1 zone, as this is a sizable lot at 3.4 acres. Mr. Kingsbury stated, the EP zone allows for non-residential uses which includes passive recreation.

Profile and Height

53Mr. Ramsay highlighted section D1.5.1 b), where adjacent to low-density residential areas, medium and high-density housing shall maintain a low building profile to conform visually to the adjacent low-rise residential areas. According to Mr. Ramsay the massing of the proposed apartment building does not respect the surrounding low-rise residential areas. The proposed apartment building has a length of approximately 154 m and height of 11.5 m. Other than the Hospital building located approximately 162 m from the Subject Lands all of the buildings in the surrounding area can be described as substantially smaller dwellings and accessory structures.

54According to Mr. Kingsbury, the building is proposed to be three storeys with a maximum height of 11.5 m. The proposed development is three storeys in height thereby maintaining a modest form of development. The maximum permitted height in the R4 zone is 12 m. The maximum permitted height for the existing R1 zone affecting the lands is 10.5 m.

55Mr. Kingsbury advised that the separation distance to existing residential uses are considered appropriate to address height impacts, particularly with regards to the outdoor amenity space of the nearby WH. There is not anticipated to be any direct line of sight impacts to the WH and its associated outdoor amenity space, which is screened by an eight foot fence.

56According to Mr. Kingsbury, this is considered a low-profile building, being only three stories, and remains within the height restrictions permitted in the R4 zone and is consistent with the institutional buildings directly north of the Subject Lands.

Proximity to community facilities

57Mr. Ramsay noted section D1.5.1 f), the adequacy and proximity of community facilities such as schools, shopping and recreation facilities. In his opinion, the Subject Lands are not located in close proximity to commercial areas. Mr. Ramsay testified for community facilities a 5-to-10-minute walking distance is generally considered appropriate. Other than the Hospital there are no community facilities with a 5-to-10-minute walking distance.

58Mr. Kingsbury disagreed, noting that the Subject Lands are adjacent to the Hospital, which offers other amenities including the family health team, pharmacy, independently owned lab and other services, and that community facilities are accessible within a 20-to-25-minute walk including schools, grocery stores, parks and the downtown core which Mr. Kingsbury opined was reasonable. Mr. Kingsbury also further confirmed that the school board had confirmed busing is available.

59Mr. Kingsbury further confirmed that the Subject Lands were located near an arterial road and therefore there are no traffic impacts or congestion anticipated due to Queen Street being a higher standard road. Mr. Kingsbury submits the proposed development meets the zoning provisions for amenity space to be provided to residents of the building. In Mr. Kingsbury's opinion, the site is located within close proximity to community and commercial services, such as the hospital and the Town's downtown area.

60Mr. Dyck testified the Subject Lands are within an 800 m (5-minute walk) of the Hospital. Further, there are several community amenities in the area, such as Black Woods Park, Grozelle Park, Riggin Park, and commercial/retail uses to the south of the lands, within the downtown core of Kincardine. As the proposed development will provide housing options for current and future residents of Kincardine and is located in close proximity to several community services and amenities, it is his opinion that the proposed development conforms to the KOP related to permitted uses within the 'Residential' designation.

Buffering and Screening

61Mr. Ramsay also highlighted section D1.5.1 d), buffering from any adjacent low-rise residential use shall be provided. Mr. Ramsay testified the visual impact of the overall massing of the proposed apartment building cannot be mitigated through measures such as buffering, screening or separation. The proposed three storey apartment building extends for a length of approximately 154 m and there are 28 balconies at the second floor and third floor levels along the rear facade. These balconies directly overlook the rear yard of the abutting property and 1183 Queen St.

62Mr. Ramsay noted the proposed R4-t-H Zone does not include any requirement for a planting strip and/or privacy fence along the interface between the R4-t-H Zone and the abutting R1 Zone lands. According to Mr. Ramsay the Applicant submitted a landscape plan that proposes the planting of trees along the rear property line as a buffer or screen. The effectiveness of such a mitigation measure depends on the size, type and number of trees to be planted. The landscape shows 17 trees but does not specify the type or size of vegetation.

63Mr. Kingsbury testified the development will be subject to site plan control, which provides the Municipality with the ability to implement landscaping measures to mitigate potential privacy impacts. A Conceptual Landscape Screen Plan was submitted in support of the proposed development, which takes into account sight-line impacts of the proposed three storey building to nearby low-density residential uses.

64Mr. Kingsbury contends the Conceptual Landscape Plan demonstrates that there is adequate buffering, both in terms of existing and potential landscaping and fencing options, as well as through spatial separation of the proposed structure and the dwelling to the south. The proposed apartment building is approximately 42 m from the existing dwelling to the south. In addition to existing trees on the lands to the south, there is sufficient space on the Subject Lands to incorporate mature trees or other privacy-mitigating vegetation to adequately buffer the dwelling to the south from visual and noise impacts associated with the proposed apartment.

65In regard to the WH, Mr. Kingsbury testified he contacted Ms. Smith, the Property Manager for WH concerning privacy. According to Mr. Kingsbury they discussed concerns about individuals parking in the parking lot who could watch the property, which has been an ongoing concern at WH, as well as overlook into the rear and patio areas of the WH buildings.

66The conceptual landscape plan, in Mr. Kingsbury's testimony, demonstrated that buffering/screening could be achieved using vegetation in light of the spatial separation between WH and the Subject Lands and he recalled discussing screening/buffering, including a privacy fence or hedge on the south side of the Subject Lands, as well as a hedge at the north side of the parking lot and the strategic placement of more mature trees to shield from overlook.

67Mr. Dyck also testified that there was a spatial distance of approximately 68 m between the building and WH and that based on his calculations there would be no direct sight lines from balconies into the rear yard of WH. The visitor parking lot was also placed as far away as reasonably possible to minimize any disturbances to WH.

68With regard to overlook onto 1183 Queen Street, Mr. Kingsbury did recognize that there is some impact to both the outdoor amenity space as well as the Appellant's house. Mr. Kingsbury however believed that buffering and screening could be accomplished that would mitigate the impact.

69In particular, Mr. Kingsbury suggested that due to the spatial separation between the building and the outdoor space and house, there could possibly be two lines of trees or vegetation that are more mature and/or grow faster directly overlooking the patio area.

70In Mr. Kingsbury's opinion, a Site Plan Agreement between the Municipality and the developer is required prior to issuance of a building permit. The Site Plan Agreement is the most appropriate process to implement screening and buffering measures to mitigate impacts between the proposed development and abutting residential uses.

71Mr. Dyck testified on the strategic placement of the trees in the conceptual landscape plan with his intent to increase buffering and screening for the Appellant. Mr. Dyck testified significant landscaping is proposed to provide amenity space for the future residents, as well as to provide appropriate buffering from the adjacent residential uses. According to Mr. Dyck as is normal practice, this process will be done at the Site Control Plan stage.

72Mr. Weishar testified that at the site plan stage, which is overseen by himself and the Municipality, the Applicant will be required to provide a detailed lot drainage plan, stormwater management plan, and a detailed/finalized landscaping plan. During this stage, Mr. Weishar also testified that he will be consulting with external stakeholders and considering concerns raised. He deposed that the site plan control process starts with a draft template which is augmented based on the proposal.

73Mr. Weishar indicated that any privacy and buffering concerns raised would be addressed at the site plan control stage. Mr. Weishar advised this would involve community engagement, whereby the Municipality tries to mitigate any negative impacts perceived by the community. At the site plan stage, a landscaping plan prepared by a qualified landscaper provides further refinement including type, quantity and location of vegetation/trees.

74Mr. Weishar was comfortable that concerns could be addressed through the site plan process, notwithstanding that he acknowledged that the Municipality had no policy, other than Section 6.21 in Zoning By-law No. 2003-25, related to landscaping although they have implemented a policy on tree preservation. Mr. Weishar advised that the Holding provision provides protection that a site plan agreement will be signed.

75Mr. Weishar advised that WH did not submit an objection to the proposal after being provided the additional landscaping information.

Traffic Impact Study ("TIS")

76Mr. Weishar testified the existing road network associated with the Subject Lands will necessarily have to be upgraded prior to development of the proposed apartment building in order to accommodate water, sewer and stormwater management infrastructure required to service the lands. The necessary upgrades will be implemented through a Development Agreement between the developer and the Municipality at the time of site plan.

77In addition, Mount Forest Avenue is intended to be an important point of access to the residentially designated lands east of the Subject Lands. These lands, locally known as the OPF lands, are currently vacant and are intended to accommodate a majority of the Municipality's future residential growth. It is anticipated the current intersection of Mount Forest Avenue and Queen Street, including the entranceway to the Hospital, will be realigned and optimized in consideration of the future growth in the area prior to development of the proposed apartment building on the Subject Lands.

78According to Mr. Weishar a Traffic Impact Study ("TIS") conducted by Paradigm, was submitted by the Applicant during the application process. Mr. Weishar advised, the TIS is indicating there are no concerns with the proposed development and that it will have no negative impact on existing traffic flows with no upgrades suggested at the present or in the future.

79Mr. Weishar testified that Mount Forest Avenue had already been slated for improvements and was on the capital plan for next year. Since this upgrading is necessary for Mount Forest Avenue due to the development related to servicing, the Municipality is looking to the future and has slotted a realignment of the intersection of Queen Street and Mount Forest Avenue, as well as improvements to Mount Forest Avenue to accommodate access to and from the lands to the east of the Subject Lands and the OPF lands.

80Both Mr. Weishar and Mr. Kingsbury testified that the intersection of Queen Street, which is an arterial road under the jurisdiction of the County, and Mount Forest Avenue, along with the entranceway to the Hospital is already slated for improvements, regardless of the development. Mr. Weishar produced diagrams which provided some options regarding the proposed realignment and new hospital entrance. Although the realignment and option for a new entrance to the hospital were produced prior to Council's decision, both Mr. Weishar and Mr. Kingsbury deposed that these options are at the conceptual stage and that further investigation, engineering design and input, and consultation with those affected, such as the Hospital, will need to occur.

81Mr. Weishar advised that through the Site Plan Control process concerning stormwater and concerns regarding drainage and/or flooding, the developer will be required to provide a detailed lot drainage plan. Mr. Weishar testified there will also be consideration for privacy and buffering between both WH along with the property owned by the Appellant during the site plan approval stage.

82Mr. Dyck and Mr. Kingsbury testified the TIS has been provided to demonstrate that no adverse impacts are anticipated for the existing road network and the Queen Street Mount Forest Avenue intersection.

COMPREHENSIVE ZONING BY-LAW No. 2003-25

83Mr. Ramsay advised the overall intent and objective of the regulations in Zoning By-law No. 2003-25 ("ZBL") is to ensure orderly development and compatibility between land uses. ZBLA No. 2021-147 rezones the Subject Lands from a Residential One (R1) Zone to a Residential Four Special Holding (R4-t-H) Zone. The effect of this amendment is to permit a 78-unit apartment building rather than a single detached dwelling, semi-detached dwelling or duplex.

84In Mr. Ramsay's opinion, ZBLA No. 2021-147 does not comply with the overall intent and purpose of the ZBL and will not result in orderly and compatible development. The key areas of noncompliance include;

• The introduction of a large scale apartment use within an area comprising detached dwellings and a small scale institutional use (WH).
• The proposed development is not compatible with the surrounding land uses. The proposed development will result in undue, adverse privacy and overlook issues for the abutting property at 1183 Queen Street and lands on the opposite side of Mount Forest Avenue.
• The proposed zoning amendment does not adequately regulate the overall massing of the proposed building.
• The proposed zoning amendment does not include requirements for a planting strip and/or privacy fence or other buffering and screening mitigation measures.

85According to Mr. Kingsbury the modification to the front yard setback is minor and section D1.4.11 allows for reduced standards such as smaller frontages and utilizing the placement of a special zone in the ZBL. No other relief is being sought from the R4 zone, and the proposed development allows generous setbacks, specifically 9 m is being proposed for the rear yard setback.

86Mr. Kingsbury testified, the R1 Zone permits single detached dwellings, semi-detached dwellings, duplex dwellings and secondary suites. Permitted non-residential uses include bed and breakfast establishments, group homes, home occupations, licensed day care nurseries, nursing homes and public parks. The Residential R4 Zone permits apartments as well as nursing homes and public parks.

87Mr. Kingsbury advised the proposed R4-t-H zone will permit an apartment building, as well as non-residential uses outlined in the ZBL. A special provision is proposed to permit a front yard setback of 5 m (to accommodate the parking area), as well as make the development subject to site plan control. The Holding provision will be removed after the granting of site plan control approval. The site plan approval stage will address vegetative plantings and fencing details.

88Mr. Dyck testified the parking rate established in the ZBL is intended to ensure that adequate parking facilities are provided for residents, and to reduce negative impacts on the surrounding transportation network. According to Mr. Dyck no adverse impacts have been identified with the proposed development, which has been confirmed within a TIS, provided in support of the development.

89Mr. Dyck advised the requested reduction for the side yard of the existing dwelling is to recognize an established setback that has existed since the building was constructed. According to Mr. Dyck, as such no negative impacts related to grading, drainage, access, or amenity space are anticipated as there is adequate room provided for access/drainage, and the lot has been appropriately sized to ensure that adequate amenity space is maintained. In Mr. Dyck's opinion, all other provisions of the ZBL are anticipated to be met with the development.

SUMMARY

90The Applicant and Municipality submit the evidence supports a finding that ZBLA No. 2021-147, as well as the proposed revisions are consistent with the PPS, conform to the COP and the KOP, meet the intent and purpose of the ZBL, and represent good land use planning.

91Accordingly, the ZBLA allows for the efficient and orderly development of underutilized land at a location that is expected to sustain residential development. It introduces a modest form of intensification that results in the creation of new housing opportunities.

FINDINGS AND DISPOSITION

92In determining this matter, the Tribunal accepts and adopts the planning evidence and expert opinion provided by Mr. Kingsbury, and the evidence by Mr. Weishar. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is in the public interest and is satisfied that the application conforms to the COP, KOP and ZBL and is consistent with the PPS.

93Although the Tribunal heard from Mr. Dyck who was forthright in his testimony, the fact that the Justification Report as described by Mr. Dyck as 'co-authored' without having that person, (Amanda Stelling) present at the hearing or even being a signatory to the Justification Report, caused the Tribunal to give less weight to his evidence.

94Although Mr. Ramsay was also forthright in his testimony and had several compelling arguments specifically in regard to the Compatibility and Buffering and Screening to both the Appellants dwelling and to the WH, the Tribunal was not persuaded by his evidence that the Site Plan Control process could not mitigate these adverse impacts, if any exist.

95The Appellant raised the concern that the Site Plan Control process has limited ability for the public or adjacent landowners to have input in that process. The Tribunal acknowledges this concern.

PROPOSED ZONING BY-LAW AMENDMENTS

96In written closing submissions the Municipality, Applicant and Appellant confirmed that an agreement had been reached in regard to the form and substance of proposed revisions to the ZBLA that will address all of the above issues.

97The Municipality submits that the inclusion of a provision to the ZBLA that requires a planting strip/privacy fence on the south side lot line in accordance with Section 6.21 of the ZBL, as referred to by both Mr. Kingsbury and Mr. Ramsay during their testimonies, as well as the planting of some more mature trees will address any privacy concerns with respect to the WH.

98The Municipality submits that the inclusion of the provision to the ZBLA that requires a privacy fence on the rear lot line in accordance with Section 3.21 of the ZBL, as well as a planting strip consisting of faster growing trees a minimum of three feet in height and placed a minimum of 4.5 m apart will address any privacy concerns raised by the Appellant.

99In addition, according to the Municipality, the requirement for Juliette style balconies on the third floor, as suggested by Mr. Ramsay during his testimony, also addresses any overlook concerns for the Appellant's property. Mr. Kingsbury also testified that the overlook could be addressed by some design re-configuration to the building by the developer which would assist or which potentially could eliminate some balconies on the upper floor in the vicinity of the Appellant's yard/house.

100The Municipality submits that the inclusion of a provision in the ZBLA to permit 'Juliette' style balconies on the third floor and limiting the number of regular balconies is supported by the evidence and will minimize any impacts to the Appellant's property.

101The Municipality, Applicant and Appellant have agreed to the form and substance of the proposed revisions to the ZBLA that will address all of the above issues namely:

i. Holding Provision

76. The first proposed revision proposes that the holding provision be released upon (a) execution of a site plan agreement between the Municipality and the Applicant and to the satisfaction of Council, and (b) the completion, by the Municipality and/or County of Bruce, of a design of the extension and re-construction of Mount Forest Avenue and improvements to the intersection of Queen Street and Mount Forest Avenue.

77. This proposed revision as mentioned addresses the required upgrades needed for Mount Forest Avenue to account for the proposed development and the future development of the OPF lands. The proposed revisions will ensure that Mount Forest Avenue and the intersection of Queen Street and Mount Forest Avenue are re-aligned to better support the flow of traffic in the area and to the Hospital and ensure that the roads can handle the increased flow of traffic.

ii. Rear Yard Setback

78. The inclusion of a minimum rear yard setback of 9 m simply confirms the proposed setback, as evidenced in the site plan drawing, which Mr. Dyck testified reflects the location of the proposed building. This is a generous setback and the intention is to maintain spatial separation from the Appellant's property, which assists with buffering.

iii. Balconies

79. The inclusion of a provision related to balconies above the second storey facing the rear lot line also addresses overlook and privacy concerns raised by the Appellant. Balconies are permitted, by it limits a number of the balconies to "Juliette" balconies. These balconies will not contain a deck or platform to walk out on. Although the Municipality believes that buffering and screening would be sufficient to address the privacy and overlook issues, the Municipality takes no issue with some of the balconies being limited to "Juliette" balconies to better address the privacy and overlook concerns of the Appellant. The remaining balconies will have no impact on the privacy and overlook concerns.

iv. Planting Strips/Privacy Fences

80. The inclusion of a provision that a planting strip/privacy fence will be required along the northern lot line in accordance with Section 6.21 of the ZBL. The planting strip/privacy fence will be interspersed with a mix of coniferous and deciduous trees of a minimum of 3 metres at the time of planting and subject to a maximum spacing between the trees of 8 metres, commencing at the westerly corner of the property and extending approximately 121 metres. This provision is meant to address privacy concerns for the WH prevent any overlook into the amenity area at the WH.

81. The inclusion of a provision that a planting strip and privacy fence as set out in Section 6.21 of the ZBL will be required along the rear lot line. The planting strip shall consist of coniferous trees (Norway Spruce and Colorado Spruce) of a minimum height of 3 metres at the time of planting and subject to a maximum spacing between trees of 4.5 metres. There will also be a solid board privacy fence along the rear lot line with a minimum height of 1.83 metres. This provision is meant to address the privacy and overlook issues, together with the "Juliette" balconies, for the Appellant's property. These provisions will ensure that there is appropriate buffering and ensure the Appellant's property has sufficient privacy.

82. The Municipality submits that these revisions were supported by the evidence presenting during the hearing; meet the legislative test and constitute good land use planning. After discussions, the revisions address the Appellant's concerns while also being acceptable to the Applicant and the Municipality.

102Principally, the Tribunal has some frustration about having heard diverging evidence over the course of a full 3-day hearing only to now being asked through the written closing submissions of counsel to approve further revisions to the ZBL agreed to by the parties to resolve the appeal.

103In any event, the Tribunal has considered the revisions being proposed to the ZBL and is satisfied that the modifications are aesthetic in nature and do not in any way compromise either the planning merits or integrity of the proposal.

ORDER

104THE TRIBUNAL ORDERS that the appeal is allowed in part, and Zoning By-law No. 2021-147, is amended in the manner set out in Attachment 1 to this Order and as amended is approved. In all other respects, the Tribunal Orders that the appeal is dismissed.

"Eric S. Crowe"

ERIC S. CROWE 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

1. Schedule "A" to By-law No. 2003-25 as amended is further amended by changing thereon from the 'Residential One (R1)' Zone to the 'Residential Four Special Holding (R4-t-H)' on those lands described as PLAN 10 PT PARK LOT 10 RP;3R9733 Part1 PCL 10-1 Municipality of Kincardine (geographic Town of Kincardine).

2. By-law No. 2003-25, as amended, being the comprehensive zoning by law for the Corporation of the Municipality of Kincardine, is further amended by amending the following paragraph as follows:

15.3.20 Notwithstanding their 'R4' zoning designation, those lands delineated as the 'R4-t-H' Zone on Schedule 'A' to this By-law may be used for residential purposes in compliance with the 'R4' zone provisions contained in this By-law, excepting however, that:

i. The parking area is permitted to be 5 m from the street line;

ii. The lands are subject to site plan control. The holding provision is to be removed upon: a) execution of a site plan agreement between the Municipality and the Applicant, to the satisfaction of the Municipality and b) the completion, by, the Municipality and/or County of Bruce of a design of the extension and re-construction of Mount Forest Avenue and improvements to the intersection of Queen Street and Mount Forest Avenue;

iii. The minimum rear yard setback shall be 9.0 m;

iv. Balconies are permitted above the second storey facing the rear lot line as follows: a) a maximum of four (4) "projecting" balconies are permitted provided no "Projecting" balcony is located within 130 m of the westerly side lot line; and b) all other balconies shall be "Juliette" balconies. For the purpose of this regulation: a) a Juliette Balcony shall mean a balcony consisting of a balustrade connection to the building faced without a deck or platform to walk on; and b) a Projecting Balcony shall mean a deck or platform added to a building which cantilevers off of the main building structure and allows residents to step out;

v. A PLANTING STRIPS/PRIVACY FENCE along the northern lot line in accordance with Section 6.21 is required. Notwithstanding Section 6.21, the PLANTING STRIPS/PRIVACY FENCE shall be interspersed with a mix of coniferous and deciduous trees of a minimum height of 3 m at the time of planting and subject to a maximum spacing between trees of 8 m, commencing at the westerly corner of the property and extending approximately 121 m;

vi. A PLANTING STRIP/PRIVACY FENCE as set out in section 6.21 are required along the rear lot line, subject to the following:

a. THE PLANTING STRIP in this location shall consist of coniferous trees (Norway Spruce and Colorado Spruce) of a maximum height of 3 m at the time of planting and subject to a maximum spacing between trees of 4.5 m; and

b. THE PRIVACY FENCE along the rear lot line shall be a solid board fence with a minimum height of 1.83 m.