Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 23, 2023
CASE NO(S).: OLT-22-004309
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Kelden Development Inc.
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To permit a 46 unit townhouse development
Reference Number: Z-2022-038
Property Address: 1182 Queen Street
Municipality/UT: Kincardine/Bruce
OLT Case No.: OLT-22-004309
OLT Lead Case No.: OLT-22-004309
OLT Case Name: Kelden Development Inc. v. Kincardine (Municipality)
Heard: March 8, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Kelden Development Inc.
Alex Ciccone
Municipality of Kincardine
Tammy Grove
Memorandum of oral DECISION DELIVERED BY T.F. Ng AND KURTIS SMITH on MARCH 8, 2023 AND ORDER OF THE TRIBUNAL
Introduction
1The matter came before the Tribunal on case management. It is an appeal by Kelden Development Inc. (the “Applicant/Appellant”) against the Municipality of Kincardine (the “Municipality”) to the Council’s refusal of a Zoning By-law Amendment (the “ZBA”) application to Zoning By-law No.2003-25 (the “ZBL”) to permit the construction of a 46-unit townhouse development on property municipally known as 1182 Queen Street (the “subject property/subject site”).
2The Appellant and the Municipality have settled the matter through a Minutes of Settlement (the “Settlement Proposal”) thus the case management conference was converted to a settlement hearing. Following the Settlement Proposal, a draft Zoning By-law Amendment (the “draft ZBA”) that implements the settlement was presented to the Tribunal.
3Douglas Haris, the sole Participant, stated concerns in his statement that the development was high density; the sole exit point will create pedestrian and traffic issues with negative impact along Queen Street; and the elimination of trees on site will reduce green spaces.
4Ronald Davidson, the Appellant’s Planner testified in support of the settlement. The Tribunal qualified him to provide opinion evidence in land use planning matters. His affidavit sworn March 1, 2023 was marked as Exhibit 1. The Document Book was marked as Exhibit 2.
5The Tribunal having considered the Settlement Proposal, the uncontroverted testimony of Mr. Davidson and having reviewed the documents filed, allows the appeal for the reasons set out below.
PLANNING EVIDENCE
6Mr. Davidson took the Tribunal through the application process and the relevant policy framework, including: the Provincial Policy Statement 2020 (the “PPS”); the County of Bruce Official Plan (“the COP”), and the Municipality of Kincardine Official Plan (the “KOP”). He opined that the draft ZBA represented good land use planning.
SITE CONTEXT
7The subject property is located along the west side of Queen Street in the settlement area of Kincardine. The site comprises 2.56 hectares of land, the majority of which was primarily forested at the time in which the application was filed. Since the application was filed, some of the trees were cleared on the north portion of the site. No buildings exist on the site.
8The subject property is designated “Primary Urban Communities” in the COP according to Schedule A; is designated “Residential” in the KOP according to Schedule A; and is zoned as “Planned Development (PD)” in the ZBL according to Schedule A.
9The Kincardine Golf and Country Club property wraps around the westerly and northerly limits of the subject property.
10Detached dwellings exist to the immediate east of the subject property, along Queen Street. Three of the five adjacent residential lots were the subject of Consent applications (i.e. lot line adjustment) in 2020 which resulted in approximately 1.2 hectares of land being added to the subject property.
11A 0.8 hectare lot containing a detached dwelling exists to the immediate south of the subject site. This parcel is considered to be underdeveloped and is expected to be further developed at some point in the future.
THE APPLICATION
12The Appellant is proposing to develop the subject property into a 46-unit townhouse complex. The development will involve a private road system and the intended ownership will be in the form of a condominium.
13To facilitate the development, approvals are required for a ZBA, Site Plan Agreement and Plan of Condominium.
14The requested ZBA which is now before the Tribunal, proposes to rezone the subject property from ‘R1’ to ‘R3’ (Residential Three). Mr. Davidson had recommended that the lands be placed within an ‘R3 – special’ zone, specific to the subject site, to limit the number of townhouses to 46 and to establish specific provisions that would reflect the exact nature of the development.
15On July 11, 2022, the Council refused the application and issued a notice of refusal dated July 26, 2022.
16The Appellant appealed to the Tribunal on August 15, 2022. Since the appeal, the parties have reached a settlement to permit the proposal, as per the original application without amendment.
Analysis/FINDINGS
17The Tribunal finds that the proposal has regard for the matters of provincial interest set out in s. 2 of the Planning Act. The Settlement Proposal and draft ZBA have regard in particular to sections 2(h) the orderly development of safe and healthy communities; and (r) the promotion of built form that is well-designed and encourages a sense of place.
Provincial Policy Statement, 2020 (PPS)
18The subject property is located within the Settlement Area and it is an area for the focus of growth and development. Land use patterns shall be based on efficient use of land and resources, infrastructure and public service facilities that are planned or available and to minimize negative impacts to the environment (PPS s. 1.1.3.1 and s. 1.1.3.2).
19This new development is in a recognized settlement area (the former Town of Kincardine), on a vacant parcel of land located within an existing built-up area. It is consistent with PPS s. 1.3.6, where the development in this designated growth area, occurs adjacent to an existing built-up area, in compact form with a mix of uses and densities that allow for the efficient use of land, infrastructure and public service facilities that are available.
20PPS s. 1. 6.6.2 states:
Municipal sewage services and municipal water services are the preferred form of servicing for settlement areas. Intensification and redevelopment within settlement areas on existing municipal sewage services and municipal water services should be promoted, wherever feasible.
21The Tribunal agrees with Mr. Davidson that the proposal is consistent with the PPS policies that speak to promotion of development that provides for an appropriate range and mix of housing types and densities to meet projected requirements of current and future residents of a regional market (PPS s. 1.4.3).
22The proposal is compatible with the settlement area where it can be sustained by the infrastructure. This proposed development on the subject site can be supported where full municipal services will be provided (PPS s. 1.6.6.2). The Tribunal finds that the proposal to permit the construction of a 46-unit townhouse development is consistent with the PPS.
The COP and the KOP
23Mr. Davidson stated that the former Town of Kincardine is a recognized settlement area in the COP and the KOP. The proposed development is on a vacant parcel of land located within an existing built-up area. The proposed density will provide for an efficient use of land and infrastructure.
24The policies stated in the COP promote Kincardine as a focal point for development within the County. These policies are essentially designed to encourage lower tier municipalities to develop more detailed Official Plan policies for the designated ‘Primary Urban Communities’. In this regard, the KOP provides specific policies for this urban area. The proposed development will be serviced with municipal water and sanitary sewers. This complies with the servicing policies of COP s. 4.7.5.4.
25COP s. 5.2.2.3 allows for a variety of residential housing types, including townhouses, as proposed in this development.
26The polices of the COP s. 4.4.4.2 – affordable housing, encourage the lower tier municipalities to require 30% of new housing to be affordable. In this regard, the KOP does not demand a developer to provide affordable housing but does encourage it. Mr. Davidson said it is unlikely that the units will fall within the “affordable” category, which is approximately $320,000; however, the units will likely be attainable, in terms of costs, for many households.
27The Tribunal acknowledges that the proposed development represents a density of 17.97 units per gross hectare, thereby complying with the minimum standard in COP s. 6.5.1.3 iii) (f) of 15 dwelling units per gross hectare. 100% of the units to be constructed will be in the form of medium density development, thereby meeting the minimum 30% requirement for medium and high-density housing (COP s. 6.5.1.3 iii) (f)).
28The developer will be required to enter into a Site Plan Agreement. The Site Plan Agreement will also include the Tree Preservation Plan and incorporate other recommendations of the Environmental Impact Study (“EIS”).
29This development will be serviced with municipal water and sanitary sewers. Sufficient capacity is available at the sewage treatment plant and water treatment plant to service the development. The Tribunal finds that the proposed development conforms to the COP.
30Mr. Davidson stated that the KOP addresses the unique characteristics, special needs and social and economic aspirations and goals of the Municipality as they pertain to the Kincardine settlement area, Tiverton and the shoreline area.
31The KOP provides the needed additional policy detail to ensure effective and practical application of the broader County policies.
32The subject property is designated ‘Residential’ on Schedule A to the KOP. Mr. Davidson explained that the goal of the ‘Residential’ designation is to supply affordable and quality living accommodation of a type and location for the present and future residents of the Municipality.
33The Tribunal finds that a major objective of the ‘Residential’ designation is KOP s. D1.2.4:
The Municipality shall provide for an appropriate range of housing types and densities to meet projected requirements of current and future residents of the regional market area by establishing and implementing minimum targets for the provision of housing which is affordable to low and moderate income households, by permitting and facilitating all forms of housing required to meet the social, health and well-being requirements of current and future residents, including special needs requirements. The Municipality shall promote densities for new housing which efficiently use land, resources, infrastructure and public service facilities, and support the use of alternative transportation modes and public transit in areas to be developed.
34The proposed development will have direct access to Queen Street, which is a County Road. From a traffic accessibility perspective, this is ideal because it allows for the efficient flow of traffic to and from the subject site. A full range of Municipal services are availability at this location.
35Municipal water and sanitary sewers can easily be provided to the subject site, and this will be done at the developer’s expense, Mr. Davidson said. There will be no economic burden for the Municipality.
36This proposed development represents a density of new housing which efficiently uses land, resources, infrastructure and public service facilities.
37The proposed townhouses are permitted uses within the ‘Residential’ designation (KOP s. D1.3 – permitted use). The development will have a compact form and involve a housing type that results in the efficient use of land, infrastructure and public service facilities.
38The proposed townhouse form of accommodation will aid the Municipality in meeting the targets for medium density housing. The layout of this condominium conforms with the relevant policies of the ZBL, save for the exterior side yard provision which is being reduced.
39Mr. Davidson explained that the proposed development requires removal of trees on the property as recognized in the EIS; however, the entire boundary of the site will be forested either through the preservation of existing trees or through new tree planting through a Tree Preservation Plan.
40The Tribunal finds that the proposed development is compatible with adjacent lands. The golf course will not be negatively affected as the Appellant’s tree preservation plan takes into consideration of the treed nature of the golf course.
41The property abutting the subject lands to the south is a large, underdeveloped site that contains a detached dwelling and is currently partially forested. The tree preservation plan provides an effective buffer to that property.
42Mr. Davidson emphasized that, in general, even without these large planting areas along property boundaries and significant setbacks from neighbouring detached dwellings, a townhouse development can be compatible with detached dwellings (KOP s. D1.4.14 – compatible built form, buffers to minimize potential impacts). The Tribunal agrees that the term “compatible” does not mean “the same as”. Compatible means being able to coexist without causing significant problems with regard to bulk/massing of buildings, noise, traffic, etc. In this regard, the townhouses will have the same height as the adjacent detached dwellings, and the townhouses will not be imposing on the adjacent detached dwellings.
43The townhouses will be visually screened from all abutting land uses, including the detached dwellings to the east, by a 3.5 metre vegetation strip that will involve the preservation of existing trees and the planting of new trees. Each townhouse will include a deck and grassed rear yard, in addition to the treed area along the rear lot line.
44An EIS was conducted due to the forested nature of the subject property and its associated potential for habitat of Species at Risk (SAR) or possibly other natural heritage features. The EIS has determined that the proposed development will not negatively impact the habitat for SAR that was identified through onsite investigations provided the recommendations of the Study are followed.
45A Transportation Impact Study was done which concluded that the increase in traffic for the development would not result in problematic movements and no additional improvements to the transportation network were necessary.
46Stormwater management has been addressed in detail in the Functional Servicing Report. The Tribunal finds that the proposed development conforms to the KOP.
ZBL
47Mr. Davidson explained that the subject lands are currently zoned ‘PD’ (Planned Development). Permitted uses are limited to those which legally existed on the day of passage of the Comprehensive ZBL.
48The subject property must be rezoned to ‘R3’ (Residential Three), a zone that permits rowhouses. A “rowhouse” is synonymous with “townhouse”.
49The provisions of the ‘R3’ zone are generally designed for townhouses that are located on individual lots and front onto a public road. Since all 46 units will be situated on one parcel and front onto a private road, an ‘R3 – special’ zone is created to reflect the intended development.
50A drawing showing the proposed zoning of the site is provided in Figure 5 (Appendix A) in Exhibit 1.
51Mr. Davidson opined that the proposal is:
a. consistent with the PPS;
b. conforms to the COP and KOP; and
c. has appropriate regard to the matters set out in Section 2 of the Act.
52Mr. Davidson’s opinion was that the proposed development represented good planning.
Conclusions
53The Tribunal finds that the proposed development on the subject site is properly served by existing and available infrastructure, municipal facilities and services. The Tribunal agrees with Mr. Davidson and finds that the project is designed to be compact; maximizes the land use for infrastructure and services; modestly meets the residential housing targets of the County; meets the medium density policies of the Municipality and will result in a safe and healthy residential community as envisaged by provincial policies.
54The existing Species at Risk habitat found on subject site and adjacent lands are not impacted negatively, as the EIS recommendations will be put in place by the Appellant through the arrangements and site plan agreement. Vegetation, trees preservation and replacements at the subject site will feature prominently in the agreement between the Appellant and the Municipality.
55The proposed development is compatible with the adjacent properties’ developments and can coexist without negative impacts on those neighbouring properties. Amenity open spaces are provided in the plans and there are no negative effects on pedestrian movements or vehicular traffic in the neighbourhood area.
56The Tribunal is satisfied that the Settlement Proposal represents good planning and that the proposed draft ZBA has regard for the matters of provincial interest set out in s. 2 of the Act; is consistent with the PPS; and conforms to the policies of the COP and the KOP.
57Pursuant to s. 34(26)(b) of the Planning Act, the Tribunal may, on an appeal, under s. 34(11), amend the by-law in such manner as the Tribunal may determine.
ORDER
58THE TRIBUNAL ORDERS that the appeal is allowed, in part, and By-law No. 2003-25 Municipality of Kincardine is amended as follows:
i. Schedule 'A' to By-law No. 2003-25 as amended, is hereby further amended by changing thereon from the ‘Residential One (R1)’ Zone to the ‘Residential Three (R3-ac-H)’ Zone on those lands described as PLAN 10 PT PARK LOTS 2 AND 3; RP 3R10465 PARTS 1 TO 4 (Kincardine Township), as outlined on the attached Schedule ‘A’;
ii. By-law No. 2003-25 as amended is hereby further amended by adding the following subsections to Section 14.3 thereof:
Special Zone: ‘R3-ac-H’
Exception to Zone Provisions:
a. A maximum of 46 townhouses shall be permitted.
b. Notwithstanding the provisions of Section 14.2.3, on lands described as ‘R3-ac-H’ the following provisions shall apply:
i. The back wall of a row dwelling shall maintain a minimum setback of 7.5 m from the property line;
ii. The sidewall of a row dwelling shall maintain a minimum setback of 6 m from the property line;
iii. The front wall of a row dwelling shall maintain a minimum setback of 6 m from the private road;
iv. The side wall of a row dwelling shall maintain a minimum setback of 0 m from the side wall of an attached row dwelling and 3 m from a row dwelling located in a different structure.
v. The minimum floor area of a row dwelling unit shall be 60 m2.
vi. The side wall of a row dwelling shall maintain a minimum setback of 3.0 metres from the private road.
c. The development shall be under site plan control:
i. The site plan agreement shall incorporate the recommendations of the Environmental Impact Study (dated March 8, 2022) to the satisfaction of the Saugeen Valley Conservation Authority; and
ii. The site plan agreement shall incorporate the Tree Retention Plan (revision 1, dated March 17, 2022).
d. On those lands identified as being subject to the ‘H’ Holding Zone provision, development, lot grading, excavation, and/or construction shall not be permitted unless the ‘H’ Holding Zone provision is removed. Council may remove the ‘H’ Holding Zone provision once the following conditions have been met:
i. A stormwater management easement between the owner of the subject lands and the owner of the adjoining Golf Course property has been registered on title to both properties; and
ii. A Site Plan Agreement has been registered on title of the subject lands.
The Tribunal authorizes the Municipal Clerk of the Municipality of Kincardine to assign a number to this By-law for record keeping purposes.
“T.F. Ng”
t.f. ng
MEMBER
“Kurtis Smith”
KURTIS SMITH
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.
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