Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
December 04, 2024
CASE NO(S).:
OLT-24-000551
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Armitage Homes Limited
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Description:
To permit a development with a maximum of 41 single detached houses, 66 double-stacked townhouses and 120 triple-stacked townhouses.
Reference Number:
D35-014-2021
Property Address:
4085, 4091, 4097 Bath Road
Municipality/UT:
Kingston
OLT Case No.:
OLT-24-000551
OLT Lead Case No.:
OLT-24-000551
OLT Case Name:
Armitage Homes Limited v. Kingston (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Armitage Homes Limited
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description:
To permit a development with a maximum of 41 single detached houses, 66 double-stacked townhouses and 120 triple-stacked townhouses.
Reference Number:
D35-014-2021
Property Address:
4085, 4091, 4097 Bath Road
Municipality/UT:
Kingston
OLT Case No.:
OLT-24-000552
OLT Lead Case No.:
OLT-24-000551
OLT Case Name:
Armitage Homes Limited v. Kingston (City)
Heard:
November 22, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Armitage Homes Limited (“Applicant/Appellant”)
Alice Mihailescu
Roberto Aburto
City of Kingston (“City”)
Jenna Morley
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON NOVEMBER 22, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal was a hearing to consider a settlement proposal (“Settlement”) of the Appellant’s appeals of an Official Plan Amendment (“OPA”), and a Zoning By-law Amendment (“ZBA”) of Zoning By-law No. 2022-62 (“ZBL”) (the “Applications”).
2The purpose of the Applications was to facilitate the development of a maximum of 41 single detached houses, 66 double stacked townhouses and 120 triple stacked townhouses on lands municipally known as 4085, 4091 and 4097 Bath Road (“Subject Lands”/ “site”) in the City of Kingston (“City”).
3Following this Settlement, drafts of the OPA and ZBA were provided.
4Mark Touw, a Registered Professional Planner, swore an Affidavit on November 21, 2024, on behalf of the Appellant, in support of the Settlement. He was qualified to give expert opinion evidence in land use planning matters. The Affidavit was marked as Exhibit 1.
5The Tribunal, having reviewed the documents, the Settlement, and the uncontroverted sworn testimony of Mr. Touw, allows the appeals for the reasons set out below.
PLANNING EVIDENCE
6Mr. Touw explained the historical background to the OPA, ZBA, and the Settlement. He gave a comprehensive review of the legislative and policy framework in support of the Applications and Settlement.
7The relevant policy framework includes the Provincial Planning Statement, 2024 (“PPS”), and the City’s Official Plan (“OP”). Mr. Touw’s opinion was that the Settlement, the OPA, and ZBA represent good land use planning and he recommended approval of the OPA and ZBA.
AREA CONTEXT
8The Subject Lands have an approximate area of 8.6 hectares with approximately 65 metres of frontage on Station Street, north of the Bell Building (645 Station Street) and 85 metres of frontage, south of the Bell Building. The Subject Lands have approximately 72 metres of frontage on Bath Road west of the “Bayview Farms” property (4085 Bath Road retained parcel) and 24 metres of frontage on the east side.
9The majority of the site is currently undeveloped with the exception of a portion of an existing barn near the center of the site. The western half of the site is well -forested, while the eastern half is lightly vegetated, consisting of a mix of trees, open fields, and manicured lawn. The western edge of the site abuts Collins Creek.
10There is a natural gas distribution line traversing the site. There is also a servicing easement along the eastern property line adjacent to Station Street.
11The Subject Lands abut Collins Creek to the west, and a cellular communication tower and Canadian National (“CN”) main line to the north. Further to the north, across from the rail line, is a combination of forested area and low-density residential development (Elmwood Subdivision).
12To the east, there is a building owned by Bell, Station Street (a municipal road), and Collins Bay Public School on the east side of Station Street. The southwestern portion of the Subject Lands abut a forested area and a residential property, while the southeastern portion of the Subject Lands abut Bath Road and the Bayview Farm property. (note, that the adjacent property at 4097 Bath Road is designated under Part IV of the Ontario Heritage Act and the adjacent property at 4085 Bath Road is listed within the Municipal Heritage Register). South of Bath Road are residential dwellings, Edith Rankin Church, and the Collins Bay municipal Boat Launch, with Lake Ontario beyond.
13The Subject Lands are located on Kingston Transit Route 10, which travels between Amherstview and the Cataraqui Centre, a transit hub that provides the opportunity to use transit to reach other parts of the city. The nearest bus stop is located immediately adjacent to the site at Bath Road and Station Street.
14The area as a whole is well-serviced by amenities with commercial uses (i.e., restaurants, grocery stores, convenience commercial, etc.) to the east at the intersection of Collins Bay Road and Bath Road, as well as further east along Bath Road. In terms of recreational uses in the area, the site is north of the Collins Bay Boat Launch and in close proximity to Lemoine’s Point and Rotary Park.
15The Archaeological Assessment completed for the Subject Lands identified a find of archaeological significance on-site. This find is known as the McGuin Millrace, and it represents one of the earliest industrial uses within Kingston Township and is representative of landscape alteration by early Euro-Canadian settlers. The site was registered with the Ministry of Tourism, Culture and Sport as the McGuin Millrace Site (BbGd-71).
16The OP currently designates the Subject Lands as “Residential” and “Environmental Protection” and the site is within Special Policy Area #15.
17Part of the lands are within the new City Zoning By-law No. 2022-62 (ZBL) with the zoning being “Development Reserve” and “Environmental Protection Area”, and the remainder is in a site- specific Arterial Commercial (C2-41-H) Zone in Kingston Township Zoning By-law No. 76-26.
18A revised proposal was submitted with modified concept plans.
THE REVISED PROPOSAL
19The initial development proposed when the OPA and ZBA applications were filed in January 2022 included 33 single-detached dwellings and 138 stacked-townhouse dwellings with a more expansive development footprint that reduced setbacks to Collins Creek. It required the removal of substantially more trees and disturbance of areas in proximity to the Valleylands to accommodate a stormwater pond on the west side of the site. The density of this initial proposal was approximately 22 units per hectare, which would be considered “low density” under the OP.
20Over the course of three revised submissions leading up to the April 2024 recommendation of approval by City Staff to Council, the maximum potential density increased to approximately 36 units per hectare. The revised plan supported by Staff in April 2024 included 41 single-detached houses, 66 double-stacked townhouses and 120 triple-stacked townhouses as well as private roads, surface parking areas, private open space and a protected naturalized buffer adjacent to Collins Creek. Consistent with additional dwelling unit permissions enabled by the Province through Bill 23, the 41 single-detached homes were proposed to contain up to three dwelling units, for a maximum total of 309 dwelling units in the Proposed Development.
21The Settlement proposal resulted in a moderate decrease in the potential maximum density, largely due to a significant increase in the setback of the development from Collins Creek and the resulting reduced development envelope. More specifically, the setback to Collins Creek increased from approximately 50 metres to 130 metres, which preserved significant additional second-growth forest areas on the site. To partly compensate for the reduced development area, the Settlement proposal incorporated a shift in the unit composition to more multi-unit townhouse forms and the removal of all single-detached dwellings. The recommended Settlement proposal allows up to 290 units, including 35 traditional townhouses (plus allowance for second units, totaling up to 70 units), 24 double-stacked townhouses, 100 double-stacked/back-to-back townhouses, and 96 triple-stacked townhouses. This equates to a maximum density of approximately 34 units per hectare.
22The revised settlement proposal removed single detached dwellings from this condominium development:
Increased the number of townhouse units up to 290 units for the development;
Increased the setback from Collins Creek (a significant natural heritage feature) by an additional 80 m (original 50m + 80m = 130m) buffer to preserve the significant feature, mature trees and natural vegetation.
23The implementing planning instruments, the OPA and ZBA, were modified to implement the revisions expressed above in the settlement plan.
24The draft ZBL was further modified from the initial submission to address the changes effected.
ANALYSIS/FINDINGS
25The Tribunal agrees with the uncontested opinion evidence of Mr. Touw that the Settlement has proper regard for the matters of provincial interest as set out in s. 2 of the Planning Act (“Act”). In particular, s. 2(h) on the orderly development of communities, s. 2(p) on the appropriate location of growth and development, s. 2(q) on the promotion of development that supports public transit and is oriented to pedestrians, and s. 2(r) on the promotion of built-form that is well-designed, encourages a sense of place, and provides for public spaces that are high quality, accessible, attractive, and vibrant.
26Further, the proposed development is consistent with the PPS issued under s. 3 of the Planning Act, which came into effect on October 20, 2024. The PPS is a streamlined province-wide land use planning policy framework that replaces both the Provincial Policy Statement, 2020 and A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019.
27Mr. Touw opined, and the Tribunal agrees, that the Settlement is consistent with the policies within the PPS and conforms to the OP.
Provincial Planning Statement, 2024
28The proposal is consistent with the policies of the PPS 2024. The proposed residential intensification and efficient utilization of land contribute to the provision of a range and mix of dwelling types and provide a cost-effective infill development within the boundary which minimizes consumption of unserved rural lands.
29The Development makes use of existing public infrastructure and facilities with sufficient capacity to support the development, support transit and active transportation, minimize stormwater run-off volumes, and does not negatively impact natural heritage resources. Cultural heritage resources will be conserved through long-term avoidance and protection as well as documentation.
30The proposal is a development of an undeveloped site that will contribute to the minimum density targets (PPS ss. 2.2 and 2.4.2).
31The site is within the settlement area, making this site a priority for residential intensification (PPS ss. 2.3 and 2.4).
Official Plan
32The OP permits growth within the urban settlement boundary of the City, including growth that supports intensification and contributes toward an appropriate range and mix of housing types. Full municipal services are available or can be made available on the Subject Lands, and the Applicant will bear the cost of any upgrades. (OP s.2.2 -City structure, in particular s.2.2.4 –‘The land within the Urban Boundary will be the focus of growth and development in the City’).
33The Subject Lands are currently under-utilized, and the proposed development will make efficient use of those services. The Subject Lands are in close proximity to a Kingston Transit stop, commercial and community uses and open spaces, which promotes active transportation and transit. (OP s.2.1, Sustainable development, in particular s.2.1.1).
34The provision of a range of townhouses, stacked and back-to-back townhouses will diversify the mix of housing available in the market, increase density, and the additional units will help the City achieve its growth targets.
35Major open space lands will be maintained in their natural state, significant stands of mature trees will be maintained, and new trees planted, stormwater can be managed on-site, and environmental damage to surrounding features is not anticipated. Canada National (CN) right-of-way will be respected. Cultural heritage attributes will be maintained.
36The proposed built form respects and is compatible with, the neighbourhood’s existing residential development in the area. The proposed townhouse form is an acceptable built-form compatible with the low-rise built form development. (OP s.2.2.5 –‘…infilling which can integrate compatibility within the prevailing built form standards of height, density and amenity that are generally found in the neighbourhood’).
37The proposed development is designed with scale, density, and height to fit the existing and planned context of the neighbourhood with no adverse impacts.
38The Tribunal finds that the Settlement:
a) Is land development which promotes residential intensification while protecting natural and cultural heritage features;
b) Is within an urban area of the City and proximate to a City transit stop and amenities making this a site suitable for the kind of residential intensification contemplated.
c) Is transit supportive of the existing and planned transit network in this area.
d) Represents appropriate intensification development that is compatible with the neighbourhood built form character and can co-exist without adverse impacts to the area.
e) Broadens the housing options offered in the form of traditional, double-stacked, and triple-stacked townhouse units within the broader neighbourhood.
f) Optimally uses service facilities and municipal infrastructure and will result in a complete community in the area.
CONCLUSION
39The Tribunal is satisfied that the Settlement represents good planning and that the proposed draft OPA and ZBA have regard for the matters of provincial interest as set out in s. 2 of the Act, are consistent with the PPS, and conform to the OP.
40The Tribunal will grant the appeals in part and approve the OPA and ZBA.
ORDER
41THE TRIBUNAL ORDERS THAT the appeals are allowed, in part; and,
The Official Plan for the City of Kingston is amended as set out in Attachment 1 to this Order.
City of Kingston Zoning By-law No. 2022-62 is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk to assign a number to this By-law for record keeping purposes.
“T.F. NG”
T.F. NG
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.