Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 08, 2023
CASE NO(S).: OLT-22-004827
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Harold Leroux
Applicant: 1709838 Ontario Limited
Subject: Zoning By-law No. 2022-62
Description: To redevelop site with medium density residential development of 35 three-storey townhouses
Property Address: 950-956 Woodhaven Drive & 3028 Princess Street
Municipality: City of Kingston
Reference Number: D35-004-2020
OLT Case No.: OLT-22-004827
OLT Lead Case No.: OLT-22-004827
OLT Case Name: Leroux v. Kingston (City)
Heard: May 16, 2023, by Video Hearing
APPEARANCES:
| Parties | Counsel/Self-Represented |
|---|---|
| Harold Leroux ("Appellant") | Self-Represented |
| 1709838 Ontario Limited ("Applicant") | Tony Fleming, Spencer Putnam |
DECISION BY ASTRID J. CLOS AND ORDER OF THE TRIBUNAL
1The Tribunal convened a Merit Hearing (“Hearing”) with respect to an appeal of By-law No. 2022-191 (“ZBL”) approved by Council on November 10, 2022, brought pursuant to s. 34(19) of the Planning Act (“Act”) by Harold Leroux (“Appellant”) for a property municipally addressed as 950-956 Woodhaven Drive and 3028 Princess Street (“Subject Property”) located in the City of Kingston (“City”).
2The purpose of the ZBL is to permit the redevelopment of the Subject Property for 35 townhouses with visitor parking, amenity area, stormwater management area and a private condominium road.
3The proposed ZBL for the subject property introduces Exception Number E104 (950-956 Woodhaven Drive) which would allow exceptions to the corner lot frontage, setbacks, height, landscaped open space, parking space length, driveway width, number of parking spaces, electric vehicle ready parking spaces, walkway to principal access to dwelling, bike parking facilities, and watercourse setbacks.
4City staff Report Number PC-22-056 dated November 8, 2022, recommended approval of the ZBL and the related Draft Plan of Subdivision application.
5On November 10, 2022, Council approved the ZBL and the Draft Plan of Subdivision for the Subject Property.
6The Draft Plan of Subdivision for the Subject Property is in effect.
7The Appellant subsequently appealed the decision of Council to approve the ZBL.
8Counsel for the City advised the Tribunal prior to the hearing that they would not participate and did not attend.
9The Affidavit of Service sworn on March 20, 2023, was entered as Exhibit 1.
Party/Participant Status Requests
10In response to the notice, no request for Party or Participant status were received.
Legislative Tests
11The Tribunal in carrying out their responsibilities shall have regard to matters of provincial interest, as set out in s. 2 of the Act.
12When making a decision related to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision, as set out in s. 2.1 (1) of the Act.
13A decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”), as set out in s. 3(5) of the Act.
14Any decision of the Tribunal shall be made pursuant to s. 24(1) of the Act, in that where an official plan is in effect, no by-law shall be passed for any purpose that does not conform therewith.
Subject Property
15The Subject Property is located north of Princess Street along Woodhaven Drive, and south of the Cataraqui stormwater pond. There are row house dwelling units and a single detached dwelling existing on the property. The parcel has an area of approximately 0.9 hectare.
Reasons for the Appeal
16The Appellant, Harold Leroux, participated throughout the local planning process and provided correspondence outlining his concerns. His concerns then became the reasons for his appeal of the ZBL which broadly includes safety, accessible parking, density, private streets vs public streets, stormwater management, by-law exceptions, noise, sustainability, proximity of parkland/commercial areas, and communal amenity area.
17Mr. Leroux advised the Tribunal that his main concerns are related to density, the design guidelines related to sidewalks, the parking space sizes not meeting the zoning requirements, the requirement for barrier free access to the communal amenity area and the number of exceptions requested to the ZBL. Mr. Leroux acknowledged that some of his concerns did not relate to the ZBL, but instead related to the Draft Plan of Subdivision which is in effect and not the subject of this hearing.
18Mr. Leroux prepared a written supplement to the reasons for his appeal and provided his opening statement through a narrated video which were both made available and reviewed by the Tribunal, the Applicant, and witnesses prior to the hearing. Mr. Leroux cross-examined the Applicant’s witnesses during the hearing and provided final argument.
19Mr. Leroux advised that while he owns property abutting the Subject Property, he resides elsewhere and does not frequent this area. He stated that the proposed development will not impact him personally. Mr. Leroux stated that he filed the appeal for the benefit of all the citizens of Kingston
EVIDENCE
20The Tribunal qualified both Youko Leclerc, Planner for the Applicant and James Bar, Planner for the City to provide expert opinion evidence in the discipline of land use planning. James Bar appeared under summons. During their evidence they referred to both written and visual materials included in Exhibit 2 – Joint Document Book.
Surrounding Land Uses
21Mr. Leclerc described the surrounding land uses as the Princess Street corridor with lower density residential uses and arterial commercial uses to the south of the Subject Property. To the north is the Cataraqui West neighbourhood planned community, which includes a city-owned stormwater pond containing multi-use trails.
22Mr. Leclerc provided his planning analysis addressing the reasons for the appeal. He stated that accessible parking will be provided in accordance with the legislation and municipal requirements. The zoning request does not exempt the proposal from these accessible parking requirements. He stated that he examined the visitor parking lot and satisfied himself that there is adequate space for the required accessible parking spaces to be provided. Mr. Leclerc confirmed that the residential density calculation would exclude the road widening, as this is to be conveyed to the city. Irrespective of this, he confirmed that there is no maximum density regulation in the zoning and compatibility is not based solely on a calculation of the difference in density of abutting parcels. Mr. Leclerc advised that the relocated watercourse has not been through the detailed design process. He stated that once the final design of the relocated watercourse has been completed, the site will be required to meet the applicable zoning watercourse setbacks as were determined in consultation with the Cataraqui Region Conservation Authority. The ZBL will allow the driveways to be wider to allow an area to walk to the front entrance of the townhouse units while still providing an adequate landscape area in the front yard. Mr. Leclerc reviewed the park, multi-use trail and commercial areas located within walking distance of the Subject Property. He advised that public transit is now available to the site and that sidewalk construction on the north side of Princess Street is scheduled in the City’s construction program. He advised that a 5.2 metre (“m”) long parking space is a standard that has been approved elsewhere in the City for other projects and with the draft plan condition requiring that purchasers be made aware of this, in his opinion, is an acceptable zoning standard for the Subject Property. He stated that the enhanced yard setbacks for the east property line did not need to be incorporated into the zoning since the relocated watercourse would require compliance with those setbacks. In addition, the location of a storm sewer along the south property line will require an enhanced building setback from the property line. He stated that while back-to-back townhouses are permitted through the definition of townhouses in the ZBL, exceptions to the zoning provisions are required to permit this built form.
Planning Act - Matters of Provincial Interest
23The Tribunal heard evidence from Mr. Leclerc that his planning analysis related to the ZBL had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act, in particular items f, j, p, q, and r.
Provincial Policy Statement
24Mr. Leclerc provided evidence with respect to the Provincial Policy Statement 2022, (“PPS”) related to the ZBL. He explained that that the PPS provides direction for the efficient use of land and infrastructure, the protection of natural heritage resources, maintaining housing stock that appropriately addresses the demographic and economic diversity of households, and supporting long-term economic prosperity.
25Mr. Leclerc stated that the Subject Property is located within a settlement area, which the PPS identifies as the focus of growth and development. He said that the proposal will add 35 residential townhouse units with a mix of unit types including back-to-back townhouses and make efficient use of public infrastructure.
26Mr. Leclerc stated that in his opinion the studies completed related to servicing, traffic, noise, and natural heritage along with the recommended mitigation, where applicable, have appropriately addressed the relevant PPS policies.
27Mr. Leclerc outlined that the Subject Property is an underdeveloped area located between the Cataraqui West subdivision and the Princess Street Corridor which has the benefit of access to existing services. He stated that this proposed intensification will efficiently use land.
28Mr. Leclerc provided his professional opinion that the ZBL is consistent with the PPS.
City of Kingston Official Plan
29Mr. Leclerc advised that the Subject Property is designated Residential in the Official Plan and is located within the City’s Urban Boundary which is where growth is intended to be focused. He indicated that the development would provide for the intensification of an under-utilized area between the Princess Street corridor and the Cataraqui West Secondary Plan area, and will result in an efficient use of land, services, and infrastructure. He added that the development meets the goal of the Residential designation by adding 35 new housing units including townhouses and back-to-back townhouses which helps to provide additional housing options. He explained that by developing in a medium density, compact form, the proposal will result in less land consumption and better energy efficiency when compared to other lower density built forms.
30Mr. Leclerc opined that the proposed development meets the locational and design criteria for new medium density developments listed under Section 3.3.B of the OP. The Subject Property is located near park and commercial uses and will not cause any adverse impacts to adjacent land uses.
31Mr. Leclerc provided his opinion that the ZBL is in conformity with the Official Plan (“OP”).
City of Kingston Zoning By-law
32Mr. Leclerc advised that the portion of the Subject Property fronting Woodhaven Drive is zoned Urban Residential Type 2.A ‘UR2.A’ and has an existing exception overlay which recognizes the existing row houses. He explained that the back of 3028 Princess Street contains a single-detached dwelling zoned Development Reserve ‘DR’. He said that a small portion of the Subject Property is zoned Open Space ‘OS1’ which reflects the previous configuration of Highgate Creek which was realigned as part of the Cataraqui West development.
33Mr. Leclerc stated that the ZBL includes relief for rear setbacks and landscaped open space for the back-to-back townhouses. The exterior setbacks proposed to be reduced, are onto a private laneway which will only service local traffic. Traffic is expected to move slowly through the private street and passing pedestrians will likely be limited to residents that are local to the development. The minimum interior setback is required to be 1.2 m while the applicant proposes 1.1 m. The purpose of the interior setback is to ensure there is enough room for people to access rear yards through an external pathway. In this case, the reduction of 0.1m is negligible and will enable rear yard access. The units with reduced rear yard setbacks back onto the City-owned stormwater management lands which ensures that they do not back onto neighbouring rear yards. The units will have access to sufficient access to amenity area as the rear yards contain enough space for a deck and for some landscaped open space. The height of the townhouses is proposed to be 10.8 m whereas the maximum allowed is 10.7 m. The increase in height by 0.1 m is considered my him to be negligible and will not impact the compatibility of the buildings with surrounding uses.
34Mr. Leclerc provided his professional opinion that the ZBL is consistent with the general intent and purpose of the City’s Zoning By-law.
35Mr. Bar confirmed that he was present for the evidence of Mr. Leclerc and that he is in agreement with and adopts this as his evidence.
36Mr. Bar advised that a Public Meeting was held of May 5, 2022, for the proposal and that input from the public was addressed in the November 8, 2022, staff report where the recommendation to approve the ZBL was provided. He further advised that planning staff spend a considerable amount of assisting members of the public by reviewing development proposals with them which is an important part of their role.
37Mr. Bar confirmed that there is a transit route that provides service in proximity to the Subject Property. He confirmed that the residential density calculation would only net out the road widening as land to be conveyed to the City. He also confirmed that a municipal sidewalk will be constructed by the City on the north side of Princess Street in the area of the Subject Property and that there are existing trails around the stormwater management pond located to the north.
38Mr. Bar advised that he used the definition of compatibility included in the OP when evaluating this development proposal. He provided his opinion that the ZBL is compatible with the surrounding area. He opined that there would be no adverse effects on the surrounding area from the development of this site and that the ZBL includes appropriate regulations and is good planning.
The ability of various land uses, buildings, sites, or urban design treatments to co-exist with one another in a manner that will not have an undue physical or functional adverse effect on, existing or proposed development in the area, or pose an unacceptable risk to environmental or human health.
39Mr. Bar explained that each proposal for development must be evaluated based on the site-specific characteristics of the proposal and the context of the surrounding area.
40The Tribunal was provided with concluding land use planning opinions from both Youko Leclerc-Desjardins and James Bar that the ZBL,
- Has had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act,
- Is consistent with the PPS,
- Is in conformity with the OP,
- Meets the general intent and purpose of the Zoning By-law,
- Represents good land use planning, and
- Is recommended for approval.
Tribunal Findings
41The Tribunal accepts the uncontested planning opinion evidence of Mr. Leclerc and Mr. Bar and finds that the ZBL, meets all the relevant policy tests of s. 2 of the Act, the PPS, the OP, represents good planning and is in the public interest.
42The Tribunal considered the information available to Council and the decision of the Council when deliberating its decision.
43The Tribunal finds that the ZBL meets the required legislative tests and that the City in its role as the protector of the public interest has satisfied this role. The Tribunal is persuaded that the proposed exceptions to the zoning were carefully evaluated and are supported by the required technical studies. The proposal will be required to be in compliance with the accessible parking regulations. The zoning setbacks from the relocated watercourse will need to be respected by the proposal. The ZBL will provide a choice of housing product and will result in intensification that is compatible with the surrounding area.
44The Appellant did not provide any evidence which would persuade the Tribunal to amend or repeal the ZBL.
45On the evidence, the Tribunal finds that the appeal be dismissed.
ORDER
46THE TRIBUNAL ORDERS that the appeal against Zoning By-law No. 2022-191 of the City of Kingston is dismissed.
“Astrid J. Clos”
ASTRID J. CLOS
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.