Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 10, 2021
CASE NO(S).: PL210104
PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 30 Duke Street Limited
Subject: Failure of the City of Kitchener to announce a decision respecting Proposed Official Plan Amendment No. OPA 20/005W/JVW
Municipality: City of Kitchener
OLT Case No.: PL210104
OLT File No.: PL210104
OLT Case Name: 30 Duke Street Limited vs. Kitchener (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 30 Duke Street Limited
Subject: Application to amend Zoning By-law No. 85-1 - Refusal or neglect of the City of Kitchener to make a decision
Existing Zoning: Commercial Residential Three Zone
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit a 15 storey residential building
Property Address/Description: 22 Weber Street West
Municipality: City of Kitchener
Municipality File No.: 20/013/W/JVW
OLT Case No.: PL210104
OLT File No.: PL210105
Heard: December 3, 2021 by Video Hearing (“VH”)
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| 30 Duke Street Limited (“Applicant”) | J. Meader |
| City of Kitchener (“City”) | L. MacDonald |
| Regional Municipality of Waterloo (“Region”) | F. McCrae |
| Friends of Olde Berlin (“Friends”) | H. Jaeger* |
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON DECEMBER 3, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held its third Case Management Conference (“CMC”) on this matter for which another panel of the Tribunal had set down a four-week hearing to commence on August 29, 2022.
2The matter before the Tribunal concerned appeals of applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) for the lands known municipally as 22 Weber Street W.
3In the lead up to this CMC, the Tribunal had been provided with Articles of Incorporation, another request for participant status, and another draft of a Procedural Order and Issues List (“PO”).
4For the reasons set out below, the Tribunal assigned party status to the Friends of Olde Berlin (“Friends”), granted participant status to Kathryn Forler, directed a resubmission of the Applicant’s revised plans, and set a fourth CMC for April 4, 2022.
DECISION
5At the CMC of June 28, 2021, the Tribunal had awarded party status to Hal Jaeger and Aaron Scriver, but had denied party status to the Friends as it was not yet incorporated.
6In the lead up to the hearing, Articles of Incorporation were filed with the Tribunal and marked as Exhibit 1 to the CMC for the Friends. At the request of Mr. Jaeger and Mr. Scriver, and on consent of all the parties, the Tribunal assigned that party interest to the Friends, released Mr. Jaeger and Mr. Scriver, and directed that Mr. Jaeger forthwith provide the Articles of Incorporation to counsel for the Applicant.
7Exhibit 2 is the request for participant status for Kathryn Forler. On consent of all the parties, the Tribunal awarded participant status to Ms. Forler.
8Exhibit 3 is the most recent draft of the PO.
9Of note from Exhibit 3 is Issue 39 entitled “Change to Applications”:
The proposed applications submitted to the City of Kitchener were for a 15 storey proposed development. In their appeal, the Appellant requested an increase to 19 storeys for which the City of Kitchener has not received any revised submissions. The proposed applications received and reviewed by the City of Kitchener and the Region of Waterloo, and before the OLT, are for a 15 storey building. The City and Region have not undertaken any evaluation of the potential impacts of a 19 storey proposed development. (Emphasis added).
10As the Tribunal had Exhibit 3 before it, the Tribunal inquired of counsel for the Applicant if the Applicant was intending to pursue a 19-storey development?
11Counsel for the Applicant responded that it was her client’s intent to do so and that the draft PO made provision for a revised proposal on or before February 28, 2022.
12The Tribunal noted that it was the intent of a Procedural Order and Issues List to provide for a fair and transparent hearing process, and that four additional storeys of height could potentially inter alia: increase the number of units, the overall density, the number of required parking spaces, the number of vehicles, and, depending on the building design, the sun/shadow analysis.
13To that end, the Tribunal inquired what process the Applicant intended on following: a formal resubmission of its applications or simply attempting to proceed within the context of the hearing to date, and when all this might occur? The response was that counsel believed it could simply occur as part of the procedure to date and that the materials could be supplied by the end of the year.
14Counsel for the City submitted that the Tribunal had no jurisdiction to consider a revised proposal for 19 storeys and that if there were a revised proposal it would require new supporting reports and come in a formal resubmission with all supporting materials.
15Counsel for the Region, and Mr. Jaeger agreed that the Issues List could not be finalized as the parties needed to know exactly what was being proposed.
16The Tribunal raised with all the parties the subject of alternative dispute resolution and/or Tribunal-led mediation. All the parties were conceptually agreeable but inasmuch as the responding parties had no actual revised plans, they were not in a position to seek formal instructions.
17The Tribunal, having heard from all the parties, refused to consider