Frontenac St. Development OMB Hearing, September 9, 2009

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Dear Neighbours:

As the summer winds down, the OMB hearing for the Frontenac Street development is just around the corner.

The hearing will begin Tuesday September 15 at Kingston City Hall, Council Chambers, starting at 11am. each day. It is
scheduled to last for 9 days.

We encourage you to attend whenever you can so that there is a constant neighbourhood presence.

John Grenville, Sue Bazely, Ken Davies and Lory Kaufman have received permission from the OMB to speak on behalf of
neighbours and parishioners. We will present the OMB with a list of all those who previously agreed to be represented.

Below is an outline of the order of proceedings:

The schedule of evidence is that Patry will go first:
- Rob Crothers (site plan)
- Jane Ironside (planner)
- Carl Bray (urban design)
- Ken Linseman (parking)
- Jay Patry (whatever)

Then the City gives its evidence:
- Gerri Kozorys-Smith (parking)
- Karen Fraser (planning)

After the City's case, the four participants give their presentations.

-- Friends of the Memorial Centre

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Dear Neighbours:

Below is a summary of day 1. If you are able to attend, even for an hour, the proceedings start at 10:00 am.

Report on Tuesday's OMB Hearing

The OMB hearing opened this morning at 11 a.m. in City Hall Council Chambers. The four neighbourhood representatives were all there (John Grenville, Sue Bazely, Ken Davies (St Francois d'Assise) and Lory Kaufman) and a few others.

Patry's lawyer called the first witness Jane Ironside, a planner from Ottawa. Ms Ironside spent the better part of the day going through her submission explaining the situation and responding to questions from the two Board members who are hearing the appeal. In general it was quite dry with all of the positive assertions about the development proposal that would have been expected from Patry's planner.

A few new pieces of information came to light. One was that the 8 off-site parking spaces are all behind 374 and 376 Alfred Street. The City has indicated that by creating a "parking lot" (5 or more parking spaces) in a B3 zone would require re-zoning of the 374/376 property. The planner also confirmed that there are 5 parcels included in the lands under consideration: 513 Frontenac, the "barns", the Keith Hay parcel (495, 497, 499 and 501 Frontenac), 376 Alfred and 378 Alfred). The planner made reference to the "Code of Conduct" for the students but the OMB member had trouble figuring out how it related to the City's Official Plan - which, of course, it doesn't.

On Wednesday 16th the hearing will begin at 10 a.m., the starting time for the balance of the hearing. Patry's planner will be cross-examined by the City's lawyer, Tony Fleming. This will probably take all of Wednesday morning. This will be followed by a presentation by Patry's other consultants - Rob Crothers (architect), Ken Linseman (traffic and parking), and Carl Bray (heritage consultant) - over the balance of the week. Next week the City will call its two witnesses - Karen Fraser (city's planner) and Geri Kozorys-Smith (traffic and parking consultant). The neighbourhood participants may present as early at Tuesday (22nd) morning but more likely Tuesday afternoon or Wednesday.

-- Friends of the Memorial Centre

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Dear Neighbours:

Wednesday at the OMB Hearing

All of Wednesday was taken up with the cross-examination of Patry's planner on the expert testimony that she presented on Tuesday. The City's lawyer, Tony Fleming, went through all aspects of her witness statement asking very detailed questions.

He examined how each of the buildings (495, 497 and 513 Frontenac Street) in a multiple building project need to be dealt with independently in terms of amenity space, parking, access, privacy etc. He focussed particularly on 513 Frontenac because under the current development scheme, it will remain an independent property and seemingly could be sold to another owner at any time without City/Planning Department approval. (The reason why Patry wants it to remain as a separate parcel is so that he does not need to hook it up to a common sewer system for the project. Utilities Kingston requires that there be only one sewer hookup per land parcel.)

Fleming questioned the planner as to whether she had considered the impact of converting the 55 dens to bedrooms and the impact if some of the bedrooms were shared, all of which would increase the number of residents to at least 224.

Because the change of a den to a bedroom requires only construction of a few internal walls, again the City does not need to know or approve.

Time was spent discussing the "code of conduct" that Patry has indicated will be signed by each tenant. Although the planner indicated that the City cannot ask for it, the developer can willingly provide it to the City as a condition. Mr. Fleming pointed out that the fact that the developer sees it necessary to even put this in place indicates that he is anticipating problems. The planner preferred to see it as dealing with the perception that there will be problems.

Mr. Fleming pointed out how the Official Plan recognizes the importance of neighbourhoods as being of fundamental importance to a residents' sense of community and calls for developers to show how they have considered the surrounding land use, compatibility, and neighbourhood character in terms of the adjacent properties and the wider surrounding neighbourhood. It appears that except for architectural compatibility, the developer has ignored the impact on the
neighbourhood - and even architecturally it's a potential problem because of the mass of the main building.

Mr. Fleming brought out the similarities between the student residence being proposed and those on the university campus which are of similar size but which have considerably more amenities, amenity space and control over students in terms of residence supervision and floor dons as well as discipline.

A lot of time was spent on the parking behind the Alfred Street houses - 374 and 376 Alfred where there will be twelve spaces (two of them for the existing tenants) and behind 388 and 390 Alfred Street (the barns) where there will be 10 parking spots. Considerable time was spent by Mr. Fleming showing that the parking at 374/376 Alfred could only be accessed legally from Alfred Street and not Jenkins Street. He also showed how the parking that would be provided when the barns were torn down could only be accessed from Jenkins Street. But the bigger unresolved issue was that each of the parking groupings would need a standard access lane and exit lane, something that is impossible to provide since the right-of-way is only 10 feet wide.

Mr. Fleming also spent a lot of time questioning the planner on her assertion that the neighbourhood was a transitional area rather than a stable area. A transitional area has somewhat negative attributes such as fragmented land use pattern (for example, a mix of commercial, light industry and residential), discontinuation or abandonment (that is, empty buildings), changes in ownership, alterations that lead to changes in use, changes in level of maintenance etc.

Mr. Fleming also looked at the characteristics of a stable area - continuity of ownership, maintenance, continuity of use etc. and suggested that this neighbourhood was a stable area. This is an important distinction because the intent of the City's Official Plan is to protect stable areas from incompatible development. Mr. Fleming went on to point out that he felt that this development could lead to this area becoming transitional. The planner tried, rather
unsuccessfully I think, to show how a development of this sort would stabilize the neighbourhood.

On Thursday beginning at 10 a.m. Rob Crothers, the architect will present his expert testimony in the morning, followed by cross-examination by the City's lawyer. Depending on the time available, this will be followed by either Ken Linseman's (traffic and parking expert) or Jay Patry's testimony. Friday's hearing will begin at 9 a.m. (rather than 10 a.m.) and finish for the week at noon.

-- Friends of the Memorial Centre

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Dear Neighbours:

We expect the neighbourhood participants (Ken, Lory, Sue and John) to present their testimony on Wednesday. It would be valuable for as many as possible to be there. Unfortunately, times are not fixed but we'll try to keep you informed as best we can.

Below are summaries for Thursday and Friday to get you up to date! Be advised they are quite long.

Thursday at the OMB Hearing

Thursday's session at the hearing focussed on two of Patry's consultants - Rob Crothers, the architect who designed the proposed development and Ken Linseman, the traffic and parking consultant.

Rob Crothers went from opening at 10 a.m. until almost noon reviewing the design criteria that Patry provided and the design process that he went through with Patry to come up with the development proposal that was rejected by the Planning Committee.

One of the options that he presented was one that could have been built without any rezoning - density, parking, amenity space etc were all OK but it didn't meet other requirements. Mr. Crothers talked about the positive aspects of the final proposal - the architectural design, the larger bedrooms (10ft by 17ft rather than 8 by 10), the environmental attributes (green roof, green paving etc), loft apartments and roof-top amenity space.

In cross-examination by the City's lawyer (Tony Fleming), Crothers talked about the difficulty of balancing the various factors of site size, the bylaw requirements, the number of units, and retention of 495/497 and 513 Frontenac. There were a number of questions concerning parking and Crothers said that not meeting the bylaw parking requirement was NOT a key criteria. When questioned about the option that met the requirements of the zoning bylaw, Crothers said that it was not acceptable because it resulted in a loss of building stock (495,497 and 513), the design of the buildings was "blocky" and the green space had limited "usability" with no character. Mr. Fleming questioned Crothers about the reduction in the number of bedrooms while adding 55 "dens".

Crothers agreed that if the project was approved by the OMB then the dens could be changed back to bedrooms before the plans were submitted for approval by the building department. Mr. Fleming also questioned that since the bedrooms were a larger size that there was no need for a den. Crothers disagreed saying that the 3 or 4 bedroom units might have two bicycles and would need space for bicycle storage. Crothers agreed that the larger bedrooms would be a reasonable size for two people. Fleming questioned how the design met the Official Plan requirement to provide a range of alternatives in terms of housing - there are no bachelor or one bedroom units (Crothers agreed), if dens are converted then there are no two bedroom apartments (Crothers agreed), it would limit the type of tenant (Crothers agreed). Unfortunately I had to leave early at 12:45 before the hearing broke for the lunch break.

When I returned to the hearing around 2:30 p.m, Ken Linseman was being cross-examined by Tony Fleming on his testimony as an expert witness in traffic and parking. Mr. Fleming spent much of the time asking Linseman about details in his report on parking requirements that were inconsistent, incomplete or confusing, of which there seemed to be many examples. Linseman assessed a number of apartments, dividing them into "student" apartments and "typical" apartments. Student apartments had three bedrooms or more. One of the questions that Linseman could not respond to was the occupancy of the apartment sites that he assessed - one of the requirements for a study under the International Traffic Engineers guidelines.

Linseman also admitted that not all of the data was current, that he had done some of it for Homestead Landholdings, two or three years ago, a fact not included in his report. Also, Linseman obtained some data from Queen's University and did not know how current the information was. Fleming also asked Linseman about his quote from the City's Director of Transportation who indicated support for a reduced parking allotment in the development proposal and why he didn't include the Director's other comments asking that the developer provide a contingency plan if the number of off-street parking spaces for the development was insufficient. Tony Fleming completed his cross-examination late in the day and the hearing was adjourned.

Friday's testimony will start with Patry's lawyer asking Linseman several closing questions. This will be following by Patry and Carl Bray, the heritage consultant. If both are completed on Friday, this will wrap up the developer's case. Friday's hearing will start at 9:00 a.m. and be adjourned at noon.


Friday's OMB Hearing Notes

Friday's hearing opened at 9 a.m. with Ken Linseman still in testimony. The cross-examination by the City's counsel had been completed but he answered a few questions from Patry's lawyer. Linseman agreed with his lawyer that if the dens were changed to bedrooms there would be little or no change in the parking requirements, that is, in accordance with his expertise adding 55 people to the development would NOT result in any need for additional parking spaces. The Board member had a few questions but nothing significant.

The next witness for Patry's side was Carl Bray, the heritage planning consultant. Bray talked about the neighbourhood with its "modest housing" and a cross-section of working and lower middle class. The houses are "good contextual buildings but nothing special" and he concluded that the existing structures do not warrant recognition for heritage.

He made a number of references to the commercial-industrial uses of the property. He also made reference to the census information for the Williamsville "neighbourhood" which shows the majority of the property with multiple tenancies (70%) and the average family income being $30,000 below the City's average. He talked about how the City needed to address the student housing issue and the fact that this had come up in a recent OMB hearing where an owner just north of Frontenac and Union Streets had appealed the City's decision not to allow an addition to the rear of his property. Bray informed the Board that 501 Frontenac was one a limited number of sites available in this area for intensification and suggested that because of its former use that the property was a "brownfield" site. He also talked about the City's intention to encourage 6 storey buildings on the Princess Street corridor and how the proposed 4½ storey development would provide a transition to the smaller houses north of the development.

Next came cross-examination by the City's lawyer, Tony Fleming. He questioned Bray's use of the Williamsville census district to characterize the neighbourhood pointing out that the district was much larger than the neighbourhood under consideration - Williamsville census district is bounded by Concession, Princess and Division Streets. In response to a question as to whether the neighbourhood was "stable", Bray pointed out the vacant properties on Princess Street but had to admit that the only turnover on Frontenac Street was in normal property transactions. In terms of characterization of the neighbourhood as being predominantly rental he was provided with the City's assessment map showing that the neighbourhood had 48% owner-occupied private dwellings. (And this doesn't include those properties that have more than one unit, in which the owner occupies one of the units - I can think of at least four but if your house falls into this category, please let us know. We plan to mention this in our testimony.) Bray made reference to the short supply of new purpose-built rental housing - something that he said implied "quality" and then went on to suggest that if students are provided with high quality accommodation then you get good behaviour. When asked if a concentration of students increases the potential for negative behaviour, Bray responded that the potential was mitigated by good noise separation between units, available indoor amenity space, a code of conduct and a live-in supervisor. He then stated - "I HOPE that this tips the balance in good behaviour."

The next section of questions focussed on Bray's role in an OMB hearing that he previously mentioned in his testimony - relating to the property just north of the corner of Frontenac and Union Streets in which the City's decision not to allow an addition to the back of the house was appealed by the owner. Bray made representation to the Board on behalf of the neighbours - his mother-in-law lives in a house whose yard borders on the proposed development.

The proposal was to make an addition to an existing house which would take the house from a three-bedroom house to a two-unit house with four and five bedrooms. The house is immediately adjacent to the campus and faces the School of Business, the former Victoria School. Bray wrote to the Committee of Adjustment in his professional capacity when the Committee was considering the proposed addition, expressing concern with the transition of the properties in the block from single family units to multiple rental units.

When questioned about how this concern was different from the concern expressed by the neighbourhood about the development north of Princess on Frontenac, Bray said that the transition south of Princess was happening piece by piece but that the development north of Princess would happen as one new large development. When asked about the impact of 169 students (minimum) into the area and the destabilizing impact, Bray said that the City lawyer was making assumptions about student behaviour and that in other areas where students exhibit poor behaviour they don't have amenity space. When asked about the impact of dropping this development into a stable neighbourhood, and the probability of this development tipping the balance from families to student housing, the only response that Bray could make was that it was not being dropped into the middle of the neighbourhood but along the bottom edge. When asked if the south of Princess development at Union and Frontenac was similar in that it was on the edge of an institutional use, Bray's only response was that the 501 Frontenac development was on a commercial-industrial property.

Bray agreed that the development could tip the balance and change the neighbourhood if the property was NOT properly managed.

Mr. Fleming then went back to the City's assessment map and showed how the houses in the 501 Frontenac neighbourhood are predominantly single family and two unit houses and that the balance between rental and owner-occupied is 55%/45% and probably more than 45% owner-occupied. Bray reverted back to his earlier response that Williamsville was predominantly rental and the census material showed 70% rental. Bray was asked what he thought would happen to the three owner-occupied houses on Jenkins Street (24, 22 and 16) and the possibility that they would become rental units after the development was built when the owners sold and moved out of the area. He was asked if this was similar to his concern with the loss of owner occupied houses in the Union/Frontenac block. He responded that it was not the same situation, that there were far more owner occupied houses in the Union/Frontenac block. At this stage Mr. Fleming pulled out a comparable assessment map and showed Bray that the Frontenac/Union block in which his mother-in-law lived was predominantly rental with very few owner-occupied houses.

Mr. Fleming then went to a letter that Bray had written to the Committee of Adjustment about the Frontenac/Union proposal and the concerns that he had expressed with the amount of amenity space being provided. The OMB decision showed that the amenity space was twice what was required by the by-law. Bray tried to explain that it was not the same situation because the houses were much closer together and that the configuration of the amenity space would make it much harder to use. When asked about the concern that he had expressed about the number of parking spaces being allocated for the Frontenac/Union development (2 spaces, one per unit), Bray stated that the number of parking spaces needed to be increased because 9 students would require more. He went on to state that in some years the 5 bedroom house next to his mother-in-law on Union Street required as many as five parking spaces. Yes, I recorded this correctly - Bray stated that some years, the 5 bedroom house on Union Street needed as many as 5 parking spaces - and this is for a house that borders the university campus.

Although Mr. Fleming was not finished with his cross-examination, the chair had previously warned both parties that the hearing was going to adjourn at noon. Bray told the chair that Friday was his last time to be available. The chair responded with "no, it's not" and while the Board would take individual circumstances into consideration in terms of timing, Bray would complete his testimony next week even if the Board had to issue a summons for him to testify. After warning Bray that he was still under examination and that he was forbidden from discussing the case with anyone, the Board Chair adjourned at noon.

I spoke with Mr. Fleming to see what his predictions were on the flow of witnesses for the balance of the hearing. He anticipates that Patry will testify on Monday (beginning at 10 a.m.) followed by the City's parking and traffic consultant. Karen Fraser, the City's planner will testify on Tuesday and depending on the length of the cross-examination, probably continue into Wednesday. The neighbourhood participants will follow on Wednesday and may continue into Thursday when Bray will be back to complete his testimony. The hearing is scheduled to wrap-up on Thursday afternoon.

-- Friends of the Memorial Centre