Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 08, 2022
CASE NO(S).: OLT-22-002377
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.: OLT-22-002377 Legacy Case No.: PL210104 OLT File No.: OLT-22-002377 Legacy File No.: PL210104 LPAT 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 W.
Municipality: City of Kitchener
Municipality File No.: 20/013/W/JVW
LPAT Case No.: PL210104
LPAT File No.: PL210105
Heard: April 4, 2022 by video hearing by (“VH”)
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| 30 Duke Street Limited (“Applicant”) | J. Meader |
| City of Kitchener (“City”) | K. Hughes |
| Region of Waterloo (“Region”) | F. McCrae |
| Friends of Olde Berlin Town (“Friends”) | H. Jaeger* |
MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON APRIL 4, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal held its fourth Case Management Conference (“CMC”) with regard to this matter.
2The Applicant, in an abundance of caution arising from the recent Divisional Court decision (City of Toronto v. 445 Adelaide Street West Inc. 2022 ONSC 1471), requested the adjournment of the 20 day hearing set to commence on Monday, August 29, 2022, to enable it to file a heritage permit with the City, to set a further CMC to finalize a revised draft Procedural Order (“PO”), and set a new hearing date for 2023.
3With the consent of the parties, the Tribunal adjourned the hearing on the merits set to commence on Monday, August 29, 2022, set the date of Friday, September 30, 2022, for the fifth CMC, and set a 20 day hearing to commence on Monday, March 13, 2023, all for the reasons set out below.
DECISION
4In the lead up to this CMC, the Applicant had filed its new plans with the City, and had circulated a revised draft PO (Exhibit 1).
5However, in the interim, the Divisional Court released its decision in the aforementioned City of Toronto v. 445 Adelaide Street West Inc. case where the Divisional Court found that the Tribunal did not have jurisdiction to deal with a land use planning matter when a heritage permit application had not been filed.
6As the lands relevant to this hearing fall within a heritage conservation district, the Applicant advised the Tribunal that it intended to file its heritage application permit by the end of April 2022, and thereafter the City would have a 90 day window to deal with the application. This application process and timing would not enable the parties to complete the requirements of the draft PO in time for the hearing set for Monday, August 29, 2022.
7Thus, the request by counsel for the Applicant was to adjourn the hearing set for Monday, August 29, 2022, set another CMC for Friday, September 30, 2022 and set a new 20 day hearing for early 2023.
8The other parties were canvassed and in light of the new heritage permit application and timing for processing, all agreed with the recommendations by counsel for the Applicant.
9Hence the Tribunal adjourned the Monday, August 29, 2022, hearing.
CMC
10The Tribunal set a fifth CMC for Friday, September 30, 2022, commencing at 10 a.m. by VH.
11The Tribunal will at that time hear a status update from the parties, and may hear a request to consolidate the anticipated heritage permit appeal with this matter.
12Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/687587165
Access code: 687-587-165
13Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
14Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 687-587-165.
15Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
16There will be no further notice of the CMC
17I am not seized of the CMC.
NEW HEARING
18The Tribunal also set a new 20 day hearing for Monday, March 13, 2023, commencing at 10 a.m. by VH.
19Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/719383509
Access code: 719-383-509
20Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
21Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 719-383-509.
22Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
23There will be no further notice of the hearing.
24I am not seized of the hearing.
NEW PARTICIPANT
25The Tribunal on consent of all the parties granted participant status to Neil Jensen.
DRAFT (“PO”)
26The Tribunal had before it a draft PO (Exhibit 1) which had anticipated the 20 day hearing commencing on Monday, August 29, 2020.
27The draft PO will require significant revision with regard to the dates and timing for the exchange of witness statements etc., and possibly new or perhaps refined issues.
28The Tribunal’s hearing schedule is a scarce public resource that must be carefully managed to optimize its availability to all, especially in these Covid times.
29Thus, the Tribunal directed that the proposed submission of the Hearing Plan (for the 20 day hearing on the merits) in paragraph 22 be increased from 10 days to 65 days so that any surplus hearing day or days that might arise for example from the settlement of issues, or the scoping of issues might be effectively used by the Tribunal.
30The Tribunal tasked the counsel for the Applicant to coordinate with the parties and prepare a revised draft PO and on consent forward it to the Case Coordinator on or before Friday, September 23, 2022, for review prior to the fifth CMC.
31This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.