Podium Development Management Corp. v. City of Kingston, 2024 CanLII 33120

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 09, 2024

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)

Heard: November 22, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Podium Development Management Corp. (“Appellant”)	J. Savini, N. Chooback
City of Kingston (the “City”)	S. Putnam, T. Fleming in abstentia
Friends of Queen Street Kingston Inc. (“Friends”)	D. Donnelly, M. Le Bouedec

MEMORANDUM OF ORAL DECISION DELIVERED BY A. SAUVE ON NOVEMBER 22, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Settlement Hearing is the result of much work and cooperation between the parties negating the need for the 10-day Hearing that had been set. As a result, the settlement proposal before the Tribunal is somewhat different than the original application. The differences include a reduction to the height of the building and the removal of balconies.

2This appeal was brought pursuant to section 34(11) of the Planning Act (“Act”) by the 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.

3The 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.

4On October 22, 2021, Zone Change application D14-012-2021 submitted by the Appellant was deemed to be complete by the City. On April 21, 2022, a public meeting was held by the City. The Appellant commenced this appeal on October 11, 2022 based on the City’s non-decision with respect to the application.

5The 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 192 residential units, 228 m2 of commercial floor area and with 36 on-site parking spaces and 200 bicycle parking spaces provided.

6The site-specific Zoning By-law Amendment being proposed are summarized as follows:

a. The Legacy and Exception Zone L448 is proposed to be removed from Schedule E – Exception Overlay, of the Zoning By-law 2022-62.

b. Schedule E – Exception Overlay is further amended by adding a height map that depicts the proposed built form of the Settlement Design.

c. Site-specific performance standards are proposed, including reference to the height and setbacks in the height map provided, a reduced amenity requirement, reduced parking dimensions and provisions, specific maximum tower floor plate size, specific dimensions for bicycle parking spaces, specific setbacks to street furniture, prohibited access to the fourth-floor rooftop amenity area, and a maximum unit count.

7A separate exception zone is proposed to apply to the lands associated with 364 Barrie Street, which is the subject of a consent application that the Tribunal was informed will result in an exchange of land between the Subject Site and 364 Barrie Street. This exception zone pertains to the lot size and frontage of 364 Barrie Street.

8A holding overlay, represented by H223 is also proposed as part of the Zoning By-law Amendment. The holding overlay prohibits the development from moving forward without the City’s receipt and acceptance of supporting studies that include an updated traffic impact study, servicing study, stormwater management study, pedestrian level wind study, and detailed noise study. The holding overlay also requires that the City be satisfied that the proposed development can be adequately serviced.

LEGISLATIVE TEST

9In making a decision on the ZBA before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement (“PPS”) and that it conforms to the City of Kingston Official Plan (“OP”). In addition, the Tribunal must have regard to the matters of provincial interest in section 2 of the Planning Act and in general, regard for the related decisions of the municipality, and be satisfied that the proposed ZBA represents good planning and is in the public interest.

PARTICIPANT WITHDRAWAL

10Prior to this Settlement Hearing the Tribunal was informed that Frontenac Heritage Foundation withdrew their Participant status. In total, there are now 48 Participant’s for this matter.

HEARING

11The Tribunal marked the following as Exhibit’s:

Exhibit 1: Affidavit of Service (marked as Exhibit at Case Management Conference on March 20, 2023.

Exhibit 2: Affidavit of Mike Keene.

Exhibit 3: Exhibit Book.

12The only witness called was Mike Keene who was qualified by the Tribunal to provide expert opinion evidence in land use planning. Mr. Keene provided evidence to the Tribunal that the proposed ZBA is consistent with the PPS and conforms to the OP. He opined that the proposed 14-storey development represents an appropriate form of redevelopment and intensification within the Urban Boundary as set out in the OP, that will achieve compatibility with the existing and surrounding uses in terms of form and function. It was his opinion that the proposed Zoning By-law Amendment constitutes good land use planning and is in the public interest.

13Mr. Keene informed the Tribunal that the following studies and reports were prepared in support of the proposed development and Settlement Design:

a. Heritage Impact Statement prepared by Stevens Burgess Architects (SBA) Ltd. dated September 2, 2021.

b. Heritage Impact Statement Addendum prepared by SBA dated March 3, 2022.

c. Planning Memo prepared by Fotenn Planning + Design dated April 4, 2023.

d. Architectural Floorplans and Elevations prepared by Enform Architects Inc. and Lemay dated April 3, 2023.

e. Stage 1 Archaeological Assessment prepared by Abacus Archaeological Services dated July 30, 2021.

f. Urban Design Review Memo and Shadow Analysis prepared by Fotenn Planning + Design dated April 4, 2023

g. Planning Report prepared by Fotenn Planning + Design dated September 2, 2021 (attached hereto as Exhibit “P”).

h. Preliminary Site Servicing and Stormwater Management Report prepared by Forefront Engineering dated August 25, 2021.

i. Transportation Impact Study prepared by IBI Group dated August 30, 2021.

j. Architectural Drawings Package prepared by Enform and Lemay dated September 2, 2021.

k. Architectural Elevations prepared by Lemay dated September 2, 2021.

l. Civil Engineering Drawings prepared by Forefront Engineering dated August 25, 2021.

m. Phase One Environmental Site Assessment prepared by G2S Consulting Inc. dated August 21, 2021.

n. Qualitative Pedestrian Level Wind Assessment prepared by Gradient Wind dated August 24, 2021.

o. Roadway Traffic Noise Feasibility Assessment prepared by Gradient Wind dated August 25, 2021.

p. Tree Inventory Study prepared by LGL Limited dated August 30, 2021.

q. Tree Preservation and Removals Plan prepared by LGL Limited dated August 30, 2021.

r. Urban Design Brief prepared by Fotenn Planning + Design dated September 2, 2021.

s. Heritage Impact Statement Addendum #2 prepared by SBA dated April 4, 2023.

14The PPS encourages efficient use of land and infrastructure, identifying settlement areas to be the focus of growth and development, protection of heritage resources, and maintaining a housing stock that appropriately addresses demographic and economic diversity of households.

15Mr. Keene opined that the proposal being presented does that by intensifying the currently underutilized properties which are presently designated and zoned for mixed-use development and located within the City’s urban boundary. The development will result in a mix of unit types and affordability with commercial and employment opportunities provided by the at-grade commercial space. The proximity of the Subject Site to commercial uses, community services, educational institutions, and transit, support the proposed development of the Subject Site.

16Also, Section 1.1.3.1 of the PPS identifies settlement areas as the focus for growth and development. The subject site is located within the City’s urban boundary and is therefore located within a settlement area.

17Mr. Keene went on to provide evidence on how the proposed development also is consistent with sections 1.1.3.2, 1.1.3.3, 1.1.3.4, 1.4, 1.6, 1.7, 1.8, 2 and 3 of the PPS.

18In summary, it is Mr. Keene’s opinion that the proposed ZBA is suitable for the area context, is consistent with the PPS and is appropriate for the site and surrounding context. The Tribunal concurs with Mr. Keene.

19The OP encourages infill and intensification within the Settlement Area Boundary identified as the Urban Boundary on Schedule 2 City Structure of the OP.

20Schedule 2 City Structure designates the property as being within a Housing District. Section 2.2.5 of the Official Plan states:

Housing Districts are planned to remain stable in accordance with Section 2.6 of this Plan but will continue to mature and adapt as the City evolves. Re-investment and upgrading will be encouraged through minor infilling and minor development (i.e., that which can integrate compatibility within the prevailing built form standards of height, density and amenity that are generally found in the neighbourhood). Housing Districts will be designated for residential uses of different types, but will also contain areas of open space, community facilities and commercial uses.

21Mr. Keene opined that the configuration of the proposal represents a compatible transition from the Central Business District designated lands on the Subject Site to the Residential designated lands to the north. The development will result in re-investment to Queen Street, which is a major arterial road that connects the northerly Inner Harbour neighbourhood and the Central Business District. He further opined that the proposal represents an appropriate redevelopment of the underutilized Subject Site. The intensity of development is supported by the proximity to transit, open spaces, commercial, and institutional uses, which will promote active transportation. The proposal will add vitality to Queen Street, while incorporating built form and architectural features that suit the Barrie Street and Colborne Street frontages.

22Section 8 provides policy direction related to urban design. Section 8.5 provides policies for new developments regarding streetscapes and public spaces and Section 8.6 outlines policies that must be addressed by new development. Mr. Keene informed the Tribunal that the redesign from the submitted application resulted in reductions in podium and tower height, increases in setbacks and stepbacks, and minor changes in materiality and shape. Further, the purpose of these changes was to increase the compatibility with the lower intensity development present on Colborne Street, and the adjacent and proximal heritage buildings.

23Mr. Keene opined that the change that has since resulted from the Settlement Design further reduces the tower height and does not impact the viability of all other urban design features that have been incorporated into the development. He went on to state that the use of high-quality building materials, appropriate building siting, and vertical articulation that are sympathetic to the surrounding context will ensure the proposed building is aesthetically pleasing and compatible with the surrounding uses and unique streetscapes on each frontage. Mr. Keene also advised that the pedestrian realm is anticipated to be enhanced by the development and impacts to surrounding properties can be sufficiently mitigated.

24It was Mr. Keene’s expert opinion that the proposed ZBA is suitable to the area context, conforms to the OP and is appropriate for the lands and surrounding context. The Tribunal concurs with Mr.Keene.

PARTICIPANT STATEMENTS

25The Tribunal received and reviewed the Participant Statement’s from the following people:

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

26The statements, to summarize, overwhelmingly are against the ZBA generally due to the size of the proposed structure and how it would not “fit” in the neighbourhood. Mr. Keene provided evidence to the Tribunal that the current settlement being proposed takes into account these concerns. He further explained that the changes made in the proposal were as a result of these concerns and that they have been addressed. The Tribunal accepts that the planning concerns raised by the Participants have been addressed in the current proposal.

CONCLUSIONS

27The Tribunal accepts the uncontroverted testimony of Mr. Keene and is satisfied that the proposed ZBA is consistent with the PPS and conforms to the OP. The Tribunal has had regard to the matters of provincial interest in section 2 of the Act and is satisfied that the ZBA represent good planning and are in the public interest.

ORDER

28THE TRIBUNAL ORDERS that the Appeal is allowed in and By-law No. 2022-62, as amended, is hereby further amended as set out in Schedule 1 to this Order. The Tribunal authorizes the municipal clerk of the City of Kingston to assign a number to this By-law for record keeping purposes.

“A. Sauve”

A. SAUVE

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.

SCHEDULE 1

OLT Case No.: OLT-22-004553

ONTARIO LAND TRIBUNAL

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 Zoning By-Law – Neglect to make Decision

Description: 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)

ORDER

THE TRIBUNAL ORDERS THAT:

1. The appeal pursuant to section 34(11) is allowed and the City of Kingston Zoning By-Law Number 2022-62, as amended, is hereby amended in accordance with Attachment “1”. The Tribunal authorizes the municipal clerk to format, as may be necessary, and assign a number to this by-law for record keeping purposes.

2. Pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, this Order is effective on November 22, 2023, being the day of the settlement hearing, upon which the proposed Zoning By-Law Amendment was presented and considered by the Tribunal.

ATTACHMENT “1”

ZONING BY-LAW AMENDMENT

By-Law Number 2023-XX

A By-Law to Amend By-Law Number 2022-62, “Kingston Zoning By-Law Number 2022-62” (Zone Change to Partially Remove Legacy Exception L448 and Introduce Exception E114 (275 and 283 Queen Street) and Introduce Exception E115 (364 Barrie Street)

ORDERED BY THE ONTARIO LAND TRIBUNAL:

1. By-Law Number 2022-62 of The Corporation of the City of Kingston, entitled “Kingston Zoning By-law Number 2022-62”, is amended as follows:

1.1. Schedule E – Exception Overlay is amended by removing the Legacy Exception ‘L448’ from the area shown on Schedule “A” attached to and forming part of this By-Law;

1.2. Schedule E – Exception Overlay is amended by adding Exceptions ‘E114’ and ‘E115’, as shown on Schedule “A” attached to and forming part of this By-Law;

1.3. Schedule F – Holding Overlay is amended by adding Holding Overlay Number ‘H223’, as shown on Schedule “B” attached to and forming part of this By-Law;

1.4. By adding the following Exception Number E114 in Section 21 – Exceptions, as follows:

“E114. Despite anything to the contrary in this By-law, the following provisions apply to the lands subject to this Exception:

(a) The maximum building heights are specified on Figure E114, with a maximum 2% variance on noted dimensions permitted;

(b) The building setbacks are shown on Figure E114, with a maximum 5% variance on noted dimensions permitted;

(c) The maximum tower floorplate is 800 square metres;

(d) The height and coverage provisions for the mechanical penthouse and service equipment penthouse, elevator or stairway penthouse, and enclosed building components providing tenants with access to the rooftop amenity areas is to be constructed in accordance with Figure E114;

(e) The maximum number of dwelling units is 192;

(f) A minimum of 6 square metres of amenity area must be provided per dwelling unit;

(g) The use of the fourth floor roof as communal outdoor amenity area is prohibited, but may be used as a private amenity area extending a maximum of 2 metres from the tower;

(h) Any furniture or structures within an outdoor patio will be set back a minimum of 0.5 metres from the street line;

(i) The required minimum number of parking spaces is 0.18 parking spaces per dwelling unit. There is no requirement for car share spaces or visitor spaces;

(j) The minimum drive aisle width for the underground parking garage is 6 metres where the parking space is perpendicular to the drive aisle;

(k) Horizontal bike parking must have minimum dimensions of 0.4 metres wide by 1.6 metres long, with a minimum vertical clearance of 1.2 metres;

(l) Stacked bike parking must have minimum dimensions of 0.4 metres wide by 1.6 metres horizontal length, with a minimum vertical clearance of 1.2 metres; and

(m) Figure E114.

1.5. By adding the following Exception Number E115 in Section 21 – Exceptions, as follows:

“E115. Despite anything to the contrary in this By-law, the following provisions apply to the lands subject to this Exception:

(a) The minimum lot area is 120 square metres; and

(b) The minimum frontage is 5.3 metres.”

1.6. By adding the following Holding Overlay Number H223 in Section 22 – Holding Conditions, as follows:

“H223. Prior to the removal of the Holding Overlay, the following conditions must be addressed to the satisfaction of the City:

(a) All necessary studies, as determined by the City, have been completed and accepted by the City. Required studies include, but may not be limited to, an updated traffic impact study, servicing study, stormwater management study, pedestrian level wind study, and detailed noise study; and

(b) The City is satisfied that there is adequate servicing capacity for the proposed development”

ORDERED by the Ontario Land Tribunal dated , 2023 for Case Number OLT-22-004553

Janet Jaynes

City Clerk

Bryan Paterson

Mayor