Capitol Development Recap

July 2015

On July 2, 2015, the Planning Committee held the first public meeting on a re-zoning application submitted by IN8 Developments for a 21-storey apartment building with a rooftop restaurant. Twelve people spoke – nine against with three in favour.

To assist with the review of the IN8 application, the City hired an independent consultant, named E.R.A. Architects Inc., to review the urban design and the heritage impact studies. E.R.A concluded there was not sufficient rationale for a tall building in the proposed location.

June 2016

Almost a year later, on June 16, 2016, the Planning Committee held a second public meeting for a revised application for a 17-storey building with no rooftop restaurant. Twenty-six people/groups objected while six people spoke in favour. The public notice gave no indication that community benefits were being considered, when the Planning Act requires a statutory meeting for such matters. Community benefits are negotiated between the city and the developer – like money for affordable housing, or a special space in the building that a developer provides to a community in exchange for getting additional height or density in their development approval.

E.R.A. was hired a second time to review the revised application. E.R.A concluded that “the proposed 17-storey development creates a massing that is not consistent with its context…the City (should) consider alternative height and massing options to create a more appropriate development form that is compatible with the immediate heritage and built form context.”

September 2018

Three months later, on September 1, 2016 a comprehensive report was finalized by City staff recommending a 16-storey building to the City’s Planning Committee. The citizens of Kingston were not consulted on this further revision.

At Planning Committee, the vote was tied, with three Councillors in favour and three against. A tie vote constitutes a ‘No’ recommendation from Planning Committee to Council.

On September 20th notwithstanding a “No” recommendation from its Planning Committee, Council voted 7-6 to approve the 16-storey application. Mayor Paterson, Councillors Allen, Boehme, Candon, George, Schell, and Turner all voted in favour. Councillors Stroud, Holland, Hutchison, McLaren, Neill and Osanic voted against the proposal.

Based on this decision, City staff issued its notice of decision as required and the Frontenac Heritage Foundation and three other individuals appealed the council decision to the Ontario Municipal Board (now called the Local Planning Appeal Tribunal or LPAT) .

At the same time, and following provincial legislation, citizens of the City requested an integrity commissioner to investigate the perceived conflict of interest in the vote of Councillor Candon, who acts a real estate agent.

October & November 2018 In October, in a unanimous vote of Council, an integrity commissioner was hired. After an extensive review process, the integrity commissioner ruled that Councillor Candon had breached the City’s Code of Conduct and recommended a re-vote.

On November 15, 2016, Council reconsidered its vote, and the application lost on a tie vote (6-6). Advice given by the City Solicitor was that the file was seized by the OMB (Seized is a legal term meaning that the OMB had taken possession of the file.) and Council could do nothing to change that.

March 26 to April 11, 2018 (ten business days)

So, what was before the OMB? The re-zoning application for 16 storeys at a density of 836 units per hectare is before the OMB.

The four appellants (parties who appeal a case) retained four expert witnesses at considerable expense – a land use planner, a heritage planner, an urban design expert, and an architect. IN8 had a similar line-up. The city planner attended under subpoena.

The appellants (Frontenac Heritage Foundation, LIST) spoke first with two lay witnesses (Annette Burfoot and Vicki Schmolka) speaking before the specialists gave their evidence.

David Cuming, an experienced heritage professional and land use planner from Hamilton, reviewed his witness statement, detailing deficiencies in the Heritage Impact Analysis done for the proposal. He explained the policy framework, both in provincial policy, and in the Official Plan, which is infused throughout with policies protecting our cultural heritage. He also described the area in detail. His view is that Kingston has the enviable position of being “pre-eminent” of all the municipalities on the Lake Ontario shoreline for its number and quality of heritage buildings and properties. This reference was repeated through the hearing.

Anne McIlroy, a highly regarded urban designer and planner from Toronto who has worked for the city on urban design projects was the next witness. She used the example of the Williamsville Urban Design Guidelines to show that the make-up of the Princess Street Corridor east of Division Street is very different in terms of heritage buildings, and that a high rise in the middle of a block would be appropriate.

Bruce Downey, the City’s own architect, gave evidence on behalf of the appellants. His vast level of experience in renovating old buildings over many decades came through in his evidence. It was good to hear from him that many buildings, even City Hall, has had alterations over the years to restore their original beauty. In speaking about how the building treatments of varying colours of brick and what they called articulation of the building façade, was intended to make the building fit in with the heritage fabric of the area, his opinion was that these revisions did nothing to reduce the height, mass and relative scale of the building. He had an interesting way to demonstrate this. He said that he has a 15-month old granddaughter who comes to his knee, and relative to him, he is a very large object: removing his vest (which he then started to do) does nothing to reduce that. It was a very effective demonstration.

The final witness was Dennis Jacobs, a land use planner from Ottawa, also with extensive public and private experience. It was his task to explain in detail to the OMB chair the many policies of the Official Plan which relate to the strategic direction of the document, including the tests of compatibility which must be met if the application is to be considered to comply with the Official Plan. He also raised the question of the “will of council” in the matter, because of course, there are two decisions of council here – one in favour, and one where the vote lost on a tie. He reinforced the importance of cultural heritage in this city, even compared to his hometown of Ottawa.

The OMB Chair, David Lanthier, was very attentive, and took many notes throughout the testimony. The OMB also heard from many participants who wished to express their views on the proposal, many of whom are FHF members. Seeing their passion and conviction as they make their presentations was very gratifying.

During the second week of the hearing, witnesses for the IN8 gave evidence, including a heritage professional, a transportation engineer, an urban designer, City manager Marnie Venditti, and land-use planner Mike Keene. Our lawyer, in his cross examination of these witnesses, did a very good job. After their last witness, our side had a chance to call experts again, and our land use planner from Ottawa, Dennis Jacobs, took the stand.

That left one day for closing arguments. The legal team – lawyer David Donnelly, and two committed articling students –worked hard for us on this hearing, putting in very long days. As David Donnelly said in his closing argument, it was a first for him to have former Mayor Helen Cooper and former Mayor John Gerretsen speak out against a proposal.

The City’s witness summoned by subpoena stated that there are many more applications pending for towers in our historic core. The planning staff seemingly do not care that there is an area in the core which has longstanding heritage zoning that is intended to protect it. This heritage area extends half a block on either side of Princess Street, from Barrie all the way to the lake, and then extends south to wrap around Market Square Heritage District, then meets up with the Old Sydenham Heritage District. As Michael McClelland of E.R.A. said when he was in Kingston working on the update to the Market Square Plan, if you enlarge that district plan, where do you stop? (Market Square applies only to City Hall and the buildings fronting on the Square, and people wanted to make it larger.) One does not need to protect that area under the Ontario Heritage Act – one only needs to look at the existing policy framework including the zoning, and not be so ready to allow incompatible development!

November 2018

The Capitol decision was released in November 2018, and the decision was a resounding denial of the contentious development application. However, legal counsel for IN8 filed motions under two sections of the Local Planning Appeal Tribunal to have the decision set aside and the matter re-heard. No decision has been made, but this involves more legal fees and the possibility of another hearing.

January 2019

In January 2019, Council turned down a staff report which would allow them to hire a legal team to conduct mediation as it seemed to everyone to be too little too late.