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Court greenlights appeal of Kingston’s Capitol condo rejection

An Ontario court allows a developer to appeal a planning tribunal's rejection of the 16-storey Capitol condo in downtown Kingston.
An Ontario court allows a developer to appeal a planning tribunal's rejection of the 16-storey Capitol condo in downtown Kingston. City of Kingston planning document

The proposed 16-storey Capitol condominium in downtown Kingston may not be dead just yet.

IN8 Developments, the company behind the controversial building at 223 Princess St., will be allowed to proceed with a court challenge of the planning tribunal’s initial rejection of the project.

IN8 Developments proposed a 16-storey condominium at 223 Princess Street, but the project was rejected in 2018 by the Local Planning Appeal Tribunal.
IN8 Developments proposed a 16-storey condominium at 223 Princess Street, but the project was rejected in 2018 by the Local Planning Appeal Tribunal. City of Kingston planning document

Ontario’s Divisional Court has granted IN8 Developments leave to appeal last year’s ruling that denied the highrise building.

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“We believe it’s an appropriate decision,” said IN8 president Darryl Firsten, who added that he asked for a judicial appeal to determine whether errors have been made on the interpretation of various points of law.

Firsten says the downtown needs more housing and his company is committed to helping.

“It’s unfortunate it has gone this way. We believe there is a huge lack of housing in Kingston.”

READ MORE: Kingston's rental vacancy rate lowest in Ontario

In a decision dated Aug. 12, Justice Robert Riopelle noted that several land use issues that have been raised in a major Canadian city “where heritage areas are so prominent” meet the grounds of importance to merit the court’s attention.

Among other things, the court says it will consider the priority given by the Local Planning Appeal Tribunal (LPAT) to heritage over intensification.

“Those engaged in the planning process are entitled to know the appropriate weight and consideration to be given to Official Plan policies in decisions concerning land use planning,” Justice Riopelle noted.

The decision also stated: “There is reason to doubt the reasonableness of the ultimate decision. There is no middle ground between some of the parties positions: it’s all or nothing.”

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A date for the appeal is not known, although Firsten says the case could be heard in six to eight months.

If an error in law is determined, the court could order LPAT to re-hear the case, he added.

The controversial downtown highrise is planned atop the former Capitol movie theatre at 223 Princess St.
The controversial downtown highrise is planned atop the former Capitol movie theatre at 223 Princess St. CKWS TV

The pending court case comes less than a year after LPAT ruled that IN8’s application for a 16-storey highrise went against the city’s official plan, including the protection of heritage in the downtown core.

READ MORE: LPAT rules against Capitol condo in 2018

The tribunal decided the 16-storey tower “represents a visual intrusion that disrupts the streetscape and an identified cultural heritage resource; and is over-development that results in adverse impact.”

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Those fighting the development, including the Frontenac Heritage Foundation, argued the building’s height did not fall in line with the city’s Official Plan and zoning bylaws, which call for a four-storey maximum on Princess Street and a six-storey limit on Queen Street.

“It is sad that citizens have to once again defend the city’s official plan at great cost. A building would already be in place had the developer proposed to build within the existing planning framework,” said Shirley Bailey, president of the Frontenac Heritage Foundation.

She says the latest decision means the planning proposal will now be argued before a judge in Divisional Court, and citizen appellants will have to raise extra money to continue their legal fight.

It is rare for LPAT rulings (formerly the Ontario Municipal Board) to be challenged in court.

READ MORE: Capitol condo developer appeals planning denial

Firsten says his Toronto-based company remains “extremely committed” to downtown Kingston, and has called the LPAT decision “catastrophically bad” for downtown Kingston and for future intensification.”

He added: “It’s something we are willing to go the distance on.”