Capitol Condos quashed by Appeal Tribunal

The 223-unit Capitol Condos development will not be moving forward as planned following the decision of the Local Planning Appeal Tribunal, which was released on Friday, Nov. 9, 2018.

The Tribunal, which is the authority which replaced the Ontario Municipal Board (OMB) earlier this year, has supported the appeal against the development. Slated to be developed on the site of the former Capitol Movie Theater on Princess Street, the Capitol Condos project was to see a high-rise development constructed by IN8 Developments, a Toronto-based company.

It was a group of concerned citizens who filed an appeal with the OMB, citing the City’s Official Plan and zoning by-laws as being incongruent with the 16-storey proposed development. The Official Plan (OP) outlines height restrictions of four storeys on Princess Street, and six storeys on Queen Street, the citizen group argued. The citizens voiced concerns that the new development would not only take away from the well-preserved heritage buildings and historic feel, but also pose issues for traffic, parking, and sightlines.

Hearings for the appeal began in March of this year, and, in the Tribunal’s decision, its adjudicators came to a unanimous agreement. The Tribunal ordered the City of Kingston to repeal the zoning by-law which supported the Capitol Condos project (see below).

The following are some of the key points from the Tribunal’s ‘Summary of Analysis, Findings and Conclusions,’ quoted verbatim:

• The Tribunal finds that through the multitude of various studies, observations and policy references Kingston’s Downtown and Harbour area is characterized by a large concentration of heritage buildings within an historic sense of place that has maintained its human scale through the preservation and protection of a continuity of a low-profile building landscape;
• The Tribunal finds that the City’s OP, together with its implementing instruments and guidelines, including the Zoning By-law, and Guidelines, contain clearly articulated and very robust policies relating to the preservation of this unique heritage character. There are numerous and emphatic policy references to the importance of cultural heritage and the protection and the preservation of the established historic architectural character of the Downtown;
• The Tribunal Finds that IN8’s technical interpretation of the City’s OP, Zoning By-law, and Guidelines and proposition that there is no maximum height limit for the Site and that the angular plane and street-wall standards set out in the Zoning By-law do not apply, is untenable and cannot stand against the clarity and priority of the very fulsome and interrelated planning policies that require the preservation and promotion of heritage, history and the unique character of the Central Business Core and the DHSPA in the City of Kingston;
• The Tribunal finds that the Development is inconsistent with the performance standards and design guidelines that are applicable and in-force in the City and that the amendments to the Zoning By-law, to the extent that they permit such height and massing of the Tower, are excessive and do not conform to the policies of the City’s OP. Specifically the Tribunal finds that the new Tower will step back and rise to such a height that it will clearly not exist in accordance with the build-to angular plane policies in the City’s planning instruments;
• The Tribunal finds that the policies of the OP which address development and the opportunities to develop beyond certain performance standards, including the heights of buildings in the Downtown, are accompanied by stringent obligations for compatibility and require a balancing of development intensification with mandatory regard for heritage and the preservation of the historic low-profile character of the Downtown areas. The Tribunal finds that the design of the Development, and in particular the Tower, has been dictated first by a development objective to maximize density and promote residential intensification to the detriment of policy requirements relating to heritage and compatibility;
• The Tribunal finds that the Development and in particular the Tower, as proposed: is not compatible with the massing of surrounding buildings; does not respect the quality of the existing area; represents a visual intrusion that disrupts the streetscape and an identified cultural heritage resource; and is overdevelopment that results in adverse impact;
• The Tribunal finds that the construction of the Tower of that height, essentially ten storeys above the six storey as-of-right limit and 12 to 14 storeys above the average range of building height in this heritage neighbourhood will fundamentally change the image of the Downtown and Harbour area;
• For these reasons the proposed Development, and the Zoning Amending By-law, are not in conformity with the policies of the OP.
• The Tribunal finds that a Tower with the proposed height of 16 storeys, with enlarged floor plates, on this Site, is too high, and too massive, and does not represent good planning in the public interest.
• Upon all these findings, and those others more particularly set out herein, and all of the evidence, the Tribunal accordingly cannot conclude that the City’s OP policies support an interpretation or finding that allows a Tower to rise on the Site at such height mass or scale. The Tribunal must accordingly answer the question, as posed by IN8, by indicating that although the Site can indeed accommodate a higher density mixed use development, the Site cannot support such high-rise development because the totality of the City’s planning policies do indeed restrict the introduction of such incompatible height, massing and scale in its context.
• The Tribunal orders that the appeal against By-law No. No. 2016-184 of the City of Kingston is allowed and By-law No. 2016-184 is hereby repealed.

More information to follow as it becomes available.