Podium Development Management Corp. v. Kingston (City), 2023 CanLII 80594

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 31, 2023

CASE NO(S).: OLT-22-004553

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Podium Development Management Corp.

Owner: Keilty International

Subject: Application to amend the Zoning By-law – neglect to make a decision

Description: Proposing to redevelop the subject lands with a mixed-use residential and commercial building ranging in height from three to 16-storeys

Reference Number: D14-012-2021

Property Address: 275 and 283 Queen Street and 364 Barrie Street

Municipality/UT: Kingston/Kingston

OLT Case No: OLT-22-004553

OLT Lead Case No: OLT-22-004553

OLT Case Name: Podium Development Management Corp v. Kingston (City)

Heard: May 12, 2023 by video hearing

APPEARANCES:

Parties Counsel

Podium Development Management Corp. J. Savini N. Chooback

City of Kingston T. Fleming

Friends of Queen Street Kingston Inc. D. Donnelly

MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON MAY 12, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the second Case Management Conference (“CMC”) with respect to an appeal brought pursuant to section 34(11) of the Planning Act (“Act”) by Podium Development Management Corp. (“Applicant/ Appellant”) for a property municipally addressed as 275-283 Queen Street and 364 Barrie Street (“subject property”) located in the City of Kingston due to the failure of council to make a decision within the legislated timeframe.

2The subject property has a frontage of approximately 41 meters (“m”) on Queen Street, 36 m of frontage on Barrie Street, 20 m of frontage on Colborne Street and a total area of 1,956 square meters (“m2”). The property contains an existing four storey office building including a parking lot with vehicular access provided from both Barrie Street and Colborne Street.

3On October 22, 2021, Zone Change application D14-012-2021 submitted by the Applicant was deemed to be complete by the City of Kingston (“City”). On April 21, 2022, a public meeting was held by the City.

4The purpose of this zone change application is to permit the development of a mixed-use residential and commercial building with a maximum height of 16 storeys including 227 residential units, 266 m2 of commercial floor area and with 39 on-site parking spaces provided.

OPPORTUNITY FOR RESOLTUON

5The Tribunal canvassed the Parties regarding opportunity for settlement. Parties confirmed that the Appellant has reached Minutes of Settlement with the City with a revised proposal drafted in consultation with the City.

6The Appellant confirmed that discussions are underway with the Friends of Queen Street Kingston Inc. however they have not concluded. The Parties have requested that the matter proceed at this time with the hope to resolve the matter prior to the hearing date.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

7The Tribunal received and reviewed the Procedural Order and Issues List (“PO/IL”) received by the Parties. The Tribunal finds it acceptable and the proceedings shall be governed by it (see Schedule 1).

HEARING

8The Tribunal set a 10-day hearing scheduled by video commencing on Monday, March 25, 2024, at 10 a.m. No further Notice is required for the hearing.

9Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/692665589

Access code: 692-665-589

10Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

11Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

12Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator with carriage of this case.

ORDER

13The Tribunal Orders that:

a. The date and particulars of the hearing are set out above;

b. The Procedural Order appended as Schedule 1 shall govern the proceedings.

14The Member is not seized of this matter but may be spoken to in relation to case management, subject to scheduling availability.

15No further notice will be provided.

“S. Mann”

S. MANN

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.

Schedule 1

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunal ontarien de l’aménagement du territoire 655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca

CASE NO(S).: OLT-22-004553

PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Podium Development Management Corp.

Owner: Keilty International

Subject: Application to amend the Zoning By-law – neglect to make a decision

Description: Proposing to redevelop the subject lands with a mixed-use residential and commercial building ranging in height from three to 16-storeys

Reference Number: D14-012-2021

Property Address: 275 and 283 Queen Street and 364 Barrie Street

Municipality/UT: Kingston/Kingston

OLT Case No: OLT-22-004553 OLT Lead Case No: OLT-22-004553

OLT Case Name: Podium Development Management Corp v. Kingston (City)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will commence on March 25, 2024 at 10a.m. and will continue to April 10, 2024. There will be no sitting for the hearing on three days during this period: March 29, April 1 and April 8. The hearing will be conducted using video at https://global.gotomeeting.com/join/692665589, Access Code is 692-665-589.

3. The parties’ initial estimation for the length of the hearing is ten (10) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before September 1, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before November 1, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before December 1, 2023.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before December 15, 2023 the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before December 15, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before March 1, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before February 15, 2024 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before January 31, 2024 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 1, 2024.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 15, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

Attachment 1

LIST OF PARTIES/PARTICIPANTS

Parties

1. Podium Development Management Corp. Templeman LLP 200 – 205 Dundas Street East Belleville, ON K8N 5A2 D. Wayne Fairbrother wfairbrother@tmlegal.ca Jennifer Savini jsavini@tmlegal.ca

2. City of Kingston Cunningham, Swan, Carty, Little & Bonham LLP 300 - 27 Princess Street Kingston, ON K7L 1A3 Tony Fleming tfleming@cswan.com

3. Friends of Queen Street Kingston Inc. Donnelly Law 203- 276 Carlaw Ave Toronto, ON M4M 3L1 David Donnelly david@donnellylaw.ca

Participants

1. Melanie Dugan
2. Jamie Swift
3. Amy Kaufman
4. Anne Di Tomaso
5. Anne Lougheed
6. Annette Burfoot
7. Bruce Hill
8. Ceredwyn Hill
9. Christina Avery
10. Daryn Lehoux
11. David McDonald
12. Don and Hee-sook Kerstens
13. Eleanor MacDonald
14. Elias Westlake
15. Elizabeth Vanderpump
16. Gisele Pharand
17. Heather Brechin
18. Huw Lloyd-Ellis
19. Jenny Taylor
20. Jill Bryant
21. Johanne Myles
22. John F. Black
23. Jonathan Rose
24. Kathleen O'Hara
25. Laurel Aziz
26. Leslie Rose
27. Linda Williams
28. Margaret Little
29. Margaret Moore
30. Mark Stoller
31. Mary Huggard
32. Mary Louise Adams
33. Matthew Gventer
34. Michael Anthony Cole-Hamilton
35. Nicholas Laan
36. Ramsey Robinson
37. Rebecca Spaulding
38. Sharon Way Brackenbury
39. Simon Baron
40. Skot Caldwell
41. Steven Maynard
42. Susanne Cliff-Jüngling
43. Tammy Caldwell
44. Tom Stewart
45. Val Hamilton
46. William C. James and Carolyn J. Kirkup
47. Ed Horba
48. Garry Castle
49. Frontenac Heritage Foundation (Penny Sharman)

Attachment 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet. Accordingly, no party shall advance an issue not identified on the Issues List without leave of the Tribunal.

1. Does the Application have regard to matters of provincial interest in section 2 of the Planning Act, including: (d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest; (h) the orderly development of safe and healthy communities; (n) the resolution of planning conflicts involving public and private interests; (p) the appropriate location of growth and development; and (r) the promotion of built form that, (i) is well-designed, (ii) encourages a sense of place, and (iii) provides for public spaces that are of high quality, safe, accessible, attractive, and vibrant?

2. Is the proposed development consistent with the policies in Provincial Policy Statement, 2020 and in particular, sections 1.1.1; 1.1.3.2; 1.1.3.4; 1.1.3.6; 1.4.3; 1.5.1; 1.6.1; 1.8.1; and 2.6.3?

3. Does the proposed development conform with the City of Kingston’s (the “City”) Official Plan (the “Official Plan”), which states that policies must be read in the context of the Official Plan as a whole, in particular: a) Section 2 – Strategic Policy Direction – the introduction; b) Section 2.1.1 (urban areas - focus of growth) including 2.1.1(k) (climate positive development); c) Section 2.1.4 (promoting sustainability in new developments); d) Sections 2.2.5 and 2.2.7 (housing and centers and corridors); e) Section 2.2.7.1 (respect for district heritage resources); f) Section 2.3.8 (cultural heritage resources); g) Section 2.3.17 (affordable housing); h) Section 2.6 (protecting stable areas) including 2.6.2 (qualifying a stable area) 2.6.3 (compatible infill development), 2.6.5 (avoid destablibilzation); i) Section 2.7 (land use compatibility) including 2.7.1 – 2.7.4 and 2.7.6; j) Section 2.8.8 (preservation of cultural heritage resources); k) Section 2.10.1(c) (climate change resilient design); l) Section 3.3.C (high density residential); m) Section 3.3.D.3 (off-campus housing; n) Section 3.3.10 (affordability); o) Section 3.3.7 (infill) p) Section 3.4.A.4 (residential uses in the Central Business District); q) Section 3.4.A.8 (special policy areas); r) Section 3.4.17 (green building features); s) Section 6.2.1 (energy conservation); t) Section 7.1.2, 7.1.10, 7.2.5, 7.3.7 (built heritage resources); u) Section 8, including 8.1 (urban design guidelines), 8.3(c) (sense of place), 8.5 (streetscapes and public places), 8.6(a) (compatible new development); v) Section 9.5.9 (zoning by-law criteria); w) Section 9.5.25 to 30 (height and density bonus); and x) Section 10A (downtown and harbour special policy areas) including 10A.4 (cultural heritage and urban design), 10A.4.2 (heritage character), 10A.4.11 (component sub-areas).

4. Does the proposed development detract from and intrude on the adjacent stable neighbourhood and residential housing?

5. Does the development proposal represent an overdevelopment of the site?

6. Is the height, mass, scale, and built form of the proposed development compatible with the surrounding area and respectful of the City of Kingston Official Plan policies that apply to it?

7. Does the proposed development address climate change in its design, features, and green elements, including green spaces, specifically sections 2.1.1(k), 2.10.1(c) and 3.4.17?

8. Does the proposed development respect the adjacent built cultural resources including designated heritage resources?

9. Does the proposed development acceptably balance the City of Kingston Official Plan policies, specifically the policies and sections listed in Section 2 above?

10. Does the proposal respond appropriately to guidance in the City of Kingston’s Design Guidelines for Communities, and the Downtown & Harbour Area Architectural Guidelines?

11. Do the proposed zoning regulations appropriately regulate? a. Setback from Queen Street; b. Building height, scale and massing; c. Angular plane and build-to-plane requirements; d. Density; e. Amenity areas; f. Parking; and g. Safe and efficient movement of pedestrians of all ages and abilities, and cyclists.

12. Does the proposed development offer an appropriate range of unit types?

13. Does the proposal provide adequate parking?

14. Would the approval of the proposed development set an inappropriate precedent?

15. In the event that the Tribunal allows the appeals in whole or in part, what provisions, if any, should be included in the zoning by-law amendment?

16. In the event that the Tribunal allows the appeals in whole or in part, should the final Order respecting the Zoning By-law Amendment application be withheld until such time as the City advises the Tribunal that the draft Zoning By-law Amendment has been finalized to the satisfaction of the City.

17. Is the proposed development good planning and is it in the public interest?

Attachment 3

ORDER OF EVIDENCE

1. Podium Development Management Corp.
2. City of Kingston
3. Friends of Queen Street Kingston
4. Podium Development Management Corp. (in reply, if any)