607 King General Partnership v. Waterloo (Region), 2021 CanLII 54178

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 16, 2021

CASE NO(S).: PL180420

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Centre Ice Developments GP Corp.

Subject: Request to amend the Official Plan - Failure of the City of Kitchener to adopt the requested amendment

Existing Designation: City Urban Area

Proposed Designated: City Urban Area

Purpose: To permit the development of 4-towers

Property Address/Description: 607-641 King Street West

Municipality: City of Kitchener

Approval Authority File No.: 17/002/K/JVW

LPAT Case No.: PL180420

LPAT File No.: PL180420

LPAT Case Name: 607 King General Partnership v. Waterloo (Region)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Centre Ice Developments GP Corp.

Subject: Application to amend Zoning By-law No. 85-1 - Refusal or neglect of the City of Kitchener to make a decision

Existing Zoning: High Intensity Mixed Use Corridor (MU-3)

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit the development of 4-towers

Property Address/Description: 607-641 King Street West

Municipality: City of Kitchener

Municipality File No.: 17/002/K/JVW

LPAT Case No.: PL180420

LPAT File No.: PL180421

Heard: May 26th, 2021 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

607 King General Partnership

Mullin, K.

City of Kitchener

MacDonald, L.

Region of Waterloo

McCrea, F.

MEMORANDUM OF ORAL DECISION DELIVERED BY N.P. ROBINSON ON JUNE 11, 2021 AND ORDER OF THE TRIBUNAL

PART I — OVERVIEW

1These appeals relate to the failure of a municipal council to make a decision on applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) by Centre Ice Developments GP Corp. (“Centre Ice”) for lands described as 607-641 King Street West, in the City of Kitchener (the “Subject Lands”). The proposed development is referred to as the Station Park development.

2The within matter was set for a Case Management Conference but the parties instead presented the Tribunal with a settlement. The Tribunal received no party or participant requests for the within matter.

3Station Park is a master planned, high-density, mixed-use development located adjacent to the City of Kitchener’s (the “City”) Urban Growth Centre along a Mixed-Use Corridor and within a Major Transit Station Area (“MTSA”).

4The OPA and ZBA proposed for Station Park are consistent with the policies of the Provincial Planning Statement, 2020 (“PPS”) which encourage intensification and efficient use of land and conform with the policies of the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”) which prioritize intensification within MTSAs and the development of complete communities. The OPA and ZBA proposed also conform with the policies of the Region of Waterloo Official Plan (“ROP”) and the 1994 City of Kitchener Official Plan (“1994 Official Plan”) and the 2014 City of Kitchener Official Plan (“2014 Official Plan”).

PART II — FACTS

5The Subject Lands are located along King Street West and are situated immediately adjacent to the City Urban Growth Centre. The Subject Lands are presently developed with a number of commercial buildings. Phase 1 of the Station Park development, which is comprised of two residential towers, is currently under construction.

6Access to the Subject Lands is provided from King Street West and Wellington Street South. Following completion of the Station Park development, access will continue to be provided from both surrounding streets with the primary access being from King Street West.

7King Street West is a Regional Road and a transit corridor. The Region of Waterloo LRT route (“ION”) runs along King Street West adjacent the Subject Lands. The Central Station ION stop is located less than 100 metres from the Subject Lands.

8The Subject Lands are located within a mixed-use area primarily comprised of office, commercial, institutional and residential uses. This includes commercial uses and Google offices on the north side of King Street West (across from the Subject Lands), The University of Waterloo School of Pharmacy to the east (on the opposite side of the railway tracks), Ontario Seed Co. Limited to the south and commercial and multiple residential uses along Wellington Street South to the west. The Region of Waterloo multi-modal transit hub is also planned within the immediate surrounding area and will be located a short distance northeast of the Subject Lands.

9The Subject Lands are located within the K-W Hospital Secondary Plan Area Station Park Development. Station Park is a master planned high-density mixed-use development. As part of the Subject Lands’ redevelopment, the existing listed property addressed as 621 King Street West (the Kaufman House, formerly the Ratz Bechtel Funeral Home) will be conserved and integrated into the development so as to ensure the long-term protection of this significant cultural heritage resource. In addition, the Subject Lands will contain a mix of office, commercial, retail (including the potential for a grocery store), Privately-owned Publicly Accessible Spaces (“POPS”), as well as a variety of residential housing options.

10The proposed Station Park development includes the following key elements:

(a) the intensification of an underutilized property within a MTSA;

(b) the incorporation of a range and mix of uses including residential, retail, office, and recreation to create a dynamic and high-quality development;

(c) the preservation and conservation of the Kaufman House;

(d) the development of well designed, safe and inviting public streets and spaces throughout the site to meet the needs of pedestrians and to foster social interaction and community connectivity;

(e) the establishment of a landmark development that will accommodate major employment and commercial uses to serve the surrounding neighbourhoods and maximize the significant investment made in public transit through the ION system;

(f) the provision of community meeting space to serve local neighbourhood associations; and

(g) the integration of an underground parking structure to accommodate the majority of parking along with loading and service areas in order to maximize the provision of urban amenity space at grade.

11Station Park includes 5 towers ranging in height from 18 storeys to 44 storeys, including two towers which have already been approved and are under construction as Phase 1. The Master Plan includes approximately 1,938 residential units, over 4,000 square metres of commercial space, more than 16,000 square metres of office space and a large central open space (POPS) measuring a minimum of 4,000 square metres.

The Applications

12The Subject Lands are designated “Mixed Use Corridor” in the K-W Hospital Secondary Plan (which forms part of the 1994 Official Plan).

13The following has occurred since the K-W Hospital Secondary Plan was approved:

(a) The LRT has now been established and is fully operational and the MTSAs are now known. The Subject Lands are located along the existing LRT route and are within a defined MTSA.

(b) The City's new Official Plan has been approved and identifies MTSAs as primary intensification areas within the City.

(c) The location of the Region's Multi-Modal Transit hub is also known and is located opposite the Subject Lands on the north side of King Street West.

(d) Provincial policy has continued to evolve and provincial plans released since the original Applications (i.e. the 2020 PPS and 2019 Growth Plan, as amended) continue to place greater emphasis on intensification and transit supportive development.

(e) The Master Plan has evolved to provide more public space (including two outdoor POPS and an enlarged community room) and improved streetscapes along both King Street West and Wellington Street.

14An OPA is being sought to change the Official Plan Land Use Designation from “Mixed Use Corridor” to “Mixed Use Corridor with Special Policy Area 6” to add new site-specific policies in the K-W Hospital Secondary Plan to allow, in part, a maximum Floor Space Ratio (FSR) of 7.5 versus the maximum FSR of 4.0 currently permitted. The OPA will accommodate the high-density redevelopment of an underutilized site within a MTSA.

15A ZBA is being sought to amend Zoning By-law No. 85-1 (the “Parent By-law”) by establishing site specific regulations related to maximum density (FSR); the heritage building (Kaufman House); parking requirements; the calculation of FSR; increased permissions for maximum retail areas; provision of a crash wall or a combination berm and fence adjacent to the CN rail right-of-way; and holding provisions to ensure the completion of an assessment of the impact of transportation and stationary noise sources, including both on-and off-site noise sources.

16The proposed ZBA will also establish a maximum floor plate size of 850 square metres for a mixed-use building or residential towers within the development, as the floor plate size is closely tied to separation distances both on and offsite. This is a significant design consideration as the city intensifies and is intended to implement the City’s Design for Tall Buildings Guidelines.

PART III – ISSUES AND PLANNING EVIDENCE

17Section 2 of the Planning Act requires the Tribunal to have regard to a number of matters of Provincial interest as set out in that section, including: (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing; and (q) the promotion of sustainable, transit-oriented development.

18The Planning Act also sets out a number of tests to be applied to the proposed OPA and ZBA:

(a) subsection 3(5) of the Planning Act requires the Tribunal’s decision on the Applications to be consistent with the PPS and to conform with the Growth Plan;

(b) section 27 requires the OPA to conform with the ROP; and

(c) section 24 requires the ZBA to conform with the 2014 Official Plan and the 1994 Official Plan, as amended by the proposed OPA.

Planning Evidence

19Andrea Sinclair, who was qualified to give expert opinion evidence in the area of land use planning, provided evidence that the Applications:

(a) have appropriately considered and addressed matters of Provincial interest in accordance with Section 2 of the Planning Act;

(b) are consistent with the PPS framework to direct the efficient use of land, the coordination of land use with infrastructure and community service facilities, the protection of significant natural heritage features and water resources, and the achievement of density targets among other matters;

(c) conform to the Growth Plan, which prioritizes intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability. This includes policies in support of intensification within MTSAs;

(d) conform to the ROP, being located within a designated Built Up Area and conforming to the policies in the ROP related to MTSAs, Transit Oriented Development, and Transportation; and

(e) conform to the City of Kitchener 1994 Official Plan containing the K-W Hospital Secondary Plan and the 2014 Official Plan, being located within a Primary Intensification Area and supporting transit usage within a MTSA. The proposed development supports the energy conservation policies and supports the City’s intentions to minimize energy consumption, can be serviced through connections to existing municipal water and sewage lines which will maximize the use of existing infrastructure, and minimizes contributions to air pollution through reduced reliance on private automobiles and will support the emerging ION rapid transit system. The intensification of the Subject Lands is in conformity with the Mixed-Use Corridor land use designation of the K-W Hospital Secondary Plan, which allows for intensive transit supportive development.

20The proposed ZBA includes appropriate regulations to address the retail and non-residential uses; parking requirements; the adjacent railway; minimum setbacks to the heritage (Kaufman) house; and building and tower design including minimum step backs to towers above the podium bases and maximum tower footprints.

21The proposed ZBA, including the proposed increase to FSR, is appropriate given the Subject Lands’ location within a MTSA, adjacent the Urban Growth Centre and along a Mixed-Use Corridor. The ZBA also incorporates a holding provision for the completion of a detailed noise assessment for the Subject Lands for both stationary and traffic noise and the compatibility of these uses in proximity to residential uses.

22The proposed development fully implements Provincial, Regional and Local policy direction related to intensification within strategic growth areas, including within MTSAs.

23By allowing additional density at this prominent location, stable neighbourhoods will be protected from pressures to intensify. This approach will help implement the direction of the 2014 and 1994 Official Plans which directs intensification to certain areas along Mixed-Use Corridors such as this, or within the Urban Growth Centre, so as to protect the stable neighbourhoods from increased pressures to intensify.

24The Station Park proposal responds to comments received from the public through the planning process regarding a number of issues, including the following:

(a) Unit Mix and Family Sized Dwellings: Phase 1 includes a range of unit sizes and types including studio, 1 bedroom, 2 bedroom and 3 bedroom units. Many of the units also include dens. The unit mix for future phases has not yet been determined however it is expected that a similar mix will be proposed. When designing Station Park, the desire was to cater to a variety of different needs and family types, so different products were considered for market. With typical condo developments, the majority of units are 1 and 2 bedrooms, predominantly because that is what is desired. In Phase 1, Centre Ice has provided for 2 and 3 bedroom townhouse units (mainly 3 bedroom units) at the base of the podium for Towers A and B which are currently under construction.

(b) Tower Height, Wind and Shadow Impacts: The Master Plan was designed with the shortest buildings oriented along Wellington Street South. The tallest buildings are oriented along the railway. Wind and Shadow Studies were updated to reflect the current Station Park proposal and wind mitigation recommendations such as landscaping and wind screens will be implemented through site plan process. The proposed towers have been designed with compact footprints (850 sq m) to minimize shadow impact. Shadow studies demonstrated that the City shadow criteria is met. The City’s Criteria requires 4-5 hours of sunlight in private rear yard amenity space.

(c) Green Space: The proposed Master Plan includes a large central urban square. An additional park is provided at the eastern corner of the site. Both green spaces will be publicly accessible. Four season amenities including skating oval, outdoor theatre and outdoor work space are proposed within the POPS areas.

(d) Trail Connections and Pedestrian Connectivity: The Master Plan provides better pedestrian connectivity across the site. This includes a publicly accessible pedestrian connection from the northwest corner of the site to the southeast corner of the site where pedestrians will be able to ultimately connect to the trail on the south side of the tracks via public sidewalks.

25The Tribunal is cognizant of the fact that the resolution jointly proposed by the parties has been the subject of extensive negotiations and is of the opinion that the settlement addresses all planning issues as described above.

26THE TRIBUNAL allows the appeal for the foregoing reasons.

27THE TRIBUNAL ORDERS that the Official Plan and Zoning By-law Amendments attached as Attachments 1 and 2 to this Order are approved and the K-W Hospital Secondary Plan Area and Zoning By-law No. 85-1 are amended accordingly.

28The Tribunal so Orders.

“N.P. Robinson”

N.P. ROBINSON

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.