KayWay Enterprises Inc. v. North Grenville (Town), 2024 CanLII 11657

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 13, 2024

CASE NO(S).: OLT-23-000854

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

Applicant/Appellant: KayWay Enterprises Inc.

Subject: Application to amend the Zoning By-law – Appeal of Decision

Description: To permit the development of 34 townhouse dwelling units and 2 semi-detached dwelling units

Reference Number: ZBA-18-22

Property Address: 13 Joseph Street and 322 Jack Street

Municipality/UT: North Grenville/United Counties of Leeds and Grenville

OLT Case No: OLT-23-000854

OLT Lead Case No: OLT-23-000854

OLT Case Name: KayWay Enterprises Inc. v. North Grenville (Town)

PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: KayWay Enterprises Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit the development of 34 townhouse dwelling units and 2 semi-detached dwelling units

Reference Number: 07-T-20231 & 07-T-20232

Property Address: 313 Joseph Street and 322 Jack Street

Municipality/UT: North Grenville/United Counties of Leeds and Grenville

OLT Case No: OLT-23-000896

OLT Lead Case No: OLT-23-000854

Heard: January 10, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Municipality of North Grenville United Counties of Leeds and Grenville KayWay Enterprises Inc.

Tony Fleming Tony Fleming Roberto Aburto Alice Mihailescu

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST ON JANUARY 10, 2024 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision arises from a Settlement Hearing on an appeal filed by KayWay Enterprises Inc. (“Appellant”). The appeal arose from the refusal by the Municipality of North Grenville (“Municipality”) concerning a Zoning By-law Amendment (“ZBA”) and the failure of the United Counties of Leeds and Grenville (“UCLG”) to make a decision on a proposed Plan of Subdivision to permit the development of a proposed subdivision to be located at 313 Joseph Street and 322 Jack Street in the Town of Kemptville (“Subject Lands”).

2The Subject Lands are irregularly shaped and located between Joseph and Jack Streets, with frontage on both. Much of the site’s area is within the interior portion of the block behind the rear yards of the surrounding residential properties that face the existing bounding streets of the block. The block is bounded by Joseph Street to the west, Jack Street to the east, Victoria Avenue to the north, and Van Buren Street to the south.

3The site has lot frontage of 16 metres (“m”) on Joseph Street, and 30.82 m on Jack Street, with a total lot area of approximately just over 1 hectare (“ha”).

4The Subject Lands are one of the largest residential blocks in Kemptville, and are located within an existing developed block. The separation between the rear of the dwellings on Victoria Avenue and the rear of the dwellings on Van Buren Street is approximately 130 m, allowing for suitable available space to achieve compatible infill development within the urban developed area.

5To the west of the Subject Lands (Joseph Street), are one- to two-storey single detached dwellings. To the north (Joseph Street) are one- to two-storey single detached dwellings, with a greater majority of two storey dwellings. To the east (Jack Street), there are one- to two-story residences towards the north segment of the block, and moving south, there are commercial buildings. South of the subject Lands (Van Buren Street) is mostly residential on the north side and commercial on the south side at the east end.

6The proposed development consists of 10 blocks, with eight blocks to be used for 32 townhouse units, one block for two semi-detached units and one block for a common element road. The dwellings are to range in height from two to three storeys. The townhouses range from three to five homes per block, with frontage along the proposed private road that connects between Jack Street and Joseph Street. The two semi-detached dwellings are to have frontage along Jack Street. Eleven homes will include purpose-built Additional Dwelling Units (“ADUs”) in the basements of the proposed dwellings.

7The 34 dwellings each feature one garage parking space, for a total of 34 garage parking spaces. Additional vehicle parking would be available for residents on their driveway, providing the required parking spaces for the 11 secondary dwelling units. No visitor parking is required by the Zoning By-law; 17 visitor parking spaces are proposed, with an eight-space lot at the western end of the site and a nine-space lot across from the central snow-storage area.

8The Parties have reached a settlement (“Settlement Proposal”) that includes the final version of the ZBA, Draft Plan of Subdivision (“Draft POS”) and Conditions of Draft Plan Approval.

9Participant status was granted to Heather Stewart, Glenna Burke, Jesse Stewart and Christopher Cook. Each of the Participants filed Participant Statements. Collectively, the issues raised were changes from the original proposal of single detached dwellings, traffic, watershed, density, parking, drainage, damage to foundations, proximity to visitor parking, construction impacts and impacts to wildlife. The Settlement Proposal has taken into account the concerns of the Participants.

10The following materials were identified as Exhibits and marked, as follows:

• Exhibit 1 – Affidavit of Christine McCuaig sworn December 8, 2023
• Exhibit 2A – Zoning By-law Amendment 44-23 received January 9, 2024
• Exhibit 2B – Draft Plan of Subdivision dated January 3, 2024
• Exhibit 2C – Conditions of Draft Plan Approval received January 9, 2024
• Exhibit 3 – Participant Statement of Heather Stewart received December 30, 2023
• Exhibit 4 – Participant Statement of Glenna Burke received January 2, 2024
• Exhibit 5 – Participant Statement of Jesse Stewart received January 2, 2024
• Exhibit 6 – Participant Statement of Christopher Cook received January 3, 2024

11The Tribunal acknowledges the receipt of the Affidavit of Christine McCuaig, a Registered Professional Planner. The Tribunal has reviewed Ms. McCuaig’s Curriculum Vitae and signed Acknowledgement of Expert’s Duty, is satisfied with her credentials and experience, and deems her qualified to provide expert opinion in land use planning for this Hearing.

LEGISLATIVE FRAMEWORK

12When considering an appeal of an application to amend a ZBL filed pursuant to s. 34 and an appeal of an application filed pursuant to s. 51 of the Act, the Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also be satisfied that the ZBA conforms with the official plans in effect. When considering a Draft POS, regard is required to the matters set out in s. 51(24) of the Act.

13In consideration of the statutory requirements, as set out above, the Tribunal must be satisfied that the ZBA, Draft POS and Conditions represent good planning and are in the public interest.

SETTLEMENT PROPOSAL

14Ms. McCuaig provided the Tribunal with a fulsome affidavit which describes the Subject Lands and surrounding lands; sets out the planning policy and regulatory context including matters of Provincial interest; the settlement between the Parties; the proposed ZBA; Draft POS and Conditions; and outlines her opinion and recommendations to the Tribunal.

15The proposed ZBA seeks to amend the Zoning By-law 50-12 (“ZBL”) from Residential First Density– Exception 31-h (R1-31-h) to Residential Third Density– Exception 26-h (R3-26-h) for the Subject Lands. Site-specific exceptions will be added to address lot area, setbacks, height and lot coverage and the execution of a subdivision agreement.

16It is Ms. McCuaig’s uncontroverted evidence that the Settlement Proposal to be implemented through the proposed ZBA, Draft POS and Conditions are consistent with the Provincial Policy Statement (“PPS”), in conformity with the UCLG Official Plan (“OP”) and Municipality’s OP (“NGOP”), represents good planning and is in the public interest.

17It is Ms. McCuaig’s opinion that the proposed development represents a compatible degree of intensification, supports a mix of housing with low- and medium-density in the form of townhomes and semi-detached homes, along with purpose-built ADUs, supports the provision of affordable housing, provides a compact form and incorporates architectural design already existent in the neighbourhood.

ANALYSIS AND FINDINGS

18The Tribunal accepts Ms. McCuaig’s uncontroverted evidence and opinion that the proposal provides for the development of a complete community with a diversity and mix of compatible land uses, and a development which improves accessibility and is well-serviced. The proposed amendments, which will implement the development, represent good planning and are in the public interest.

19The following illustrates for the Tribunal those aspects of the proposal that allow the appeal and approves the ZBA and POS.

20In making its Decision on the appeal before it, the Tribunal has had regard to matters of Provincial interest as set out in s. 2 of the Act. The Tribunal is satisfied that the proposed ZBA and POS:

• Protects the environment by developing within an existing settlement area on a vacant parcel of land adjacent to existing development where no protected flora or fauna have been identified;
• Has and/or provides for an adequate supply of services, locating the development within a settlement area and represents an efficient use of said services;
• The POS constitutes an orderly development where rear yards abut rear yards in a standard block condition with appropriate and common setbacks;
• The development provides and supports a range of housing options in the area including affordable options;
• The development is the appropriate location of growth and development.

21The Tribunal is satisfied that the proposed development meets the intent of the policies of the Provincial Policy Statement as follows:

• The proposed development is an efficient use of a vacant area of land within an existing built community and proposes intensification of a residential block through appropriate built form.
• The development contributes to the range of housing options in the community and supports growth management goals through cost-effective development patterns which minimize servicing costs.
• There is no form of regular public transportation in Kemptville. However, the subject site is located within a 10 to15 minute walk of the Kemptville core area, and this supports active transportation.
• The proposed development uses vacant land and resources and is appropriate for the available infrastructure and services.
• The proposed development provides for appropriate development standards through the use of commonly accepted yard setbacks, which facilitate intensification and promote appropriate compact form.
• The proposed development is situated where existing servicing and infrastructure is available, is an efficient use of land and resources, supports active modes of transportation such as walking and cycling and establishes development standards that facilitate compact form.
• The proposed development townhome units, semi-detached units and the provision of ADUs provide a variety of housing options that are not well represented in the current context. The existing context is predominantly single-detached homes. Townhomes and semi-detached units provide an appropriate degree of intensification and unit type variety while maintaining a ground-oriented dwelling type to ensure compatibility.
• The proposed development is not located near any hazard areas and therefore not considered a risk to public health and safety nor of property damage.

22The UCLG OP designates the Subject Lands as Urban Settlement Area. The proposed development demonstrates conformity with Section 2.0 of the UCLG OP by providing a housing variety, intensifying within an existing built context in order to make use of available infrastructure and providing 11 secondary dwelling units.

23The proposed development demonstrates conformity with Section 2.3.1, policy b) of the UCLG OP by efficiently using land and infrastructure, is a compact urban form with smaller unit sizes while maintaining common yard setbacks and does not exceed height permissions, and adds a range of unit types and residential uses to the existing community.

24The proposed development demonstrates conformity with Section 2.3.2 policy b) of the UCLG OP by being located within an urban settlement area and by its proposed offering of a variety of residential uses, those being: townhomes, semi-detached dwellings/buildings, and purpose-built ADUs. All residential uses are permitted in the NGOP.

25The proposed development demonstrates conformity with Section 2.4.1 policy c) of the UCLG OP through a proposed degree of intensification offering ground-oriented residential options in the form of townhomes and a semi-detached building. As the proposed built forms maintain common setbacks and permitted heights with a density that does not require an Official Plan Amendment to the NGOP, it is concluded that the development is of an appropriate scale and character.

26The NGOP designates the Subject Lands as Residential. The proposed development is in conformity with the NGOP as the proposed development is compact, uses existing infrastructure, is within a serviced area and proposes a mix of housing types.

27The proposed development demonstrates conformity with Section 10.2.2 of the NGOP by providing low- and medium-density residential options, by providing infill development in a manner that is compatible with the existing neighbourhood context without seeking any increases in height permissions and while maintaining common setbacks, and supports existing infrastructure.

28The proposed development demonstrates conformity with Section 11 of the NGOP by supporting the provision of a choice of dwelling types so that a broad range of housing requirements is satisfied and by providing opportunities for an adequate supply of affordable housing.

29The proposed development meets the intent of the NGOP. The proposed development provides for medium-density development through the townhouse dwelling units. ADUs will be incorporated into the development to provide opportunities to create more housing. The proposed development does not create any undue demands on the Municipality’s infrastructure.

30The Subject Lands are zoned Residential First Density – Exception Holding (R1-31-h). The proposed Residential Third Density – Exception Holding zone will permit townhouse and semi-detached dwelling units to be developed on the Subject Lands.

31In support of the proposed ZBA a planning rationale provided both a Neighbourhood Character Statement and Compatibility Report. The findings of the Statement and Report led Ms. McCuaig to deem the ZBA to be compatible to the surrounding context and to support the intent regarding residential intensification that allows for proposed built forms and types to coexist with the present context without creating undue or adverse impacts and while supporting changing policies over time.

32The proposed development meets all applicable policies set out in the ZBL in that it is compatible in scale to the surrounding detached homes. The private road is sufficiently sized to accommodate traffic and no new network modifications are required. Adequate space is provided to accommodate new trees and the overall proposal would integrate well with the adjacent lands, filling in the block and optimally utilizing a large vacant lot within a residential area. The private road can accommodate municipal emergency vehicles and garbage collection vehicles. The proposal aligns and conforms to the policies of the NGOP.

33The Tribunal is satisfied that the Settlement Proposal has appropriate regard for matters of provincial interest, is consistent with the Provincial Policy Statement (“PPS”), is in conformity with the UCLG Official Plan (“UCLG OP”) and Municipality’s OP (“NGOP”), and suitably addresses the requirements of s. 51(24) of the Act. The Settlement Proposal constitutes good land use planning for the Subject Lands as it would provide much needed housing supply and housing choice to the area, add to the variety of dwelling types in the neighbourhood, contribute ADUs and support more affordable forms of housing that achieve the objectives of the municipality’s affordable housing strategy. The Settlement Proposal is in the public interest as it will supply much needed housing to the community in the Urban Settlement Area, which is identified for growth.

ORDER

34THE TRIBUNAL ORDERS that the appeal filed by KayWay Enterprise Inc. pursuant to s. 34(11) of the Planning Act R.S.O. 1990, c. P. 13, as amended, is allowed, in part, and that the Municipality of North Grenville Zoning By-law No. 50-12 is hereby amended in the manner set out in Attachment 1 to this Order and Decision. The Tribunal authorizes the municipal clerk of the Municipality of North Grenville to format as may be necessary and to assign a number to this By-law for record-keeping purposes.

35THE TRIBUNAL ORDERS that the appeal by KayWay Enterprise Inc., pursuant to s. 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, is allowed, in part, and that the Draft Plan of Subdivision prepared by Annis O’Sullivan Vollebekk Ltd. dated January 3, 2024 and attached as Attachment 2 is approved, subject to the fulfillment of the Conditions set out in Attachment 3 of this Order and Decision.

36THE TRIBUNAL ORDERS that, subject to s. 51(56.1) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, the United Counties of Leeds and Grenville shall have the authority to clear the Conditions of Draft Plan Approval and to administer final approval of the Plan of Subdivision for the purposes of s. 51(58) of the Planning Act.

“W. Daniel Best”

DANIEL BEST

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.

THE CORPORATION OF THE MUNICIPALITY OF NORTH GRENVILLE

Schedule “A” to By-Law 44-23

This map forms part of By-Law 44-23

Area to be rezoned from the Residential First Density – Exception Holding (R1-31- h) to Residential – Third Density – Exception Holding (R3-26-h) zone.

ATTACHMENT 2