Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 17, 2022

CASE NO(S).: OLT-22-002838 (Formerly PL180347)

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

Applicant and Appellant: 6965083 Canada Inc.

Subject: Application to amend Zoning By-law No. 1108- Refusal or neglect of the City of Waterloo to make a decision

Existing Zoning: Multiple Residence 25 (MR-25)

Proposed Zoning: Multiple Residence 25 (MR-25) with Site Specific Provisions (To be determined)

Purpose: To permit 2 apartment buildings being 21 and 22 storeys with 307 units

Property Address/Description: Various Addresses

Municipality: City of Waterloo

Municipality File No.: Z-17-17

OLT File No.: OLT-22-002838

Legacy Case No.: PL180347

OLT Case No.: OLT-22-002838

OLT Case Name: 6965083 Canada Inc. v. Waterloo (City)

Heard: June 7, 2022 by video hearing

APPEARANCES:

Parties	Counsel
6965083 Canada Inc.	Patrick Harrington
City of Waterloo	Susan Smith

MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON JUNE 7, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal by 6965083 Canada Inc. pursuant to s. 34(11) of the Planning Act with respect to the City of Waterloo’s failure to deal with a proposed Zoning By-law Amendment within the specified timeframe.

2This is the first Case Management Conference (“CMC”) related to this appeal.

3The Tribunal received a Settlement Motion Record dated May 27, 2022, including Minutes of Settlement and a Draft Zoning By-law Amendment.

Background and Area Context

4The subject lands are located in the City of Waterloo, in the Province of Ontario, known municipally as 209, 215 and 217 King Street South, 11 John Street West and 176, 180 and 182 Caroline Street South.

5The subject lands are bounded by King Street South to the east, John Street West to the north, a single detached dwelling (15 John Street West) and a section of Caroline Street South to the west and the Sunlife Financial Canadian Head Office to the south at 227 King Street South.

6The subject lands presently contain three single detached dwellings and two low-rise multiple residential buildings that have been unoccupied for a number of years. The existing buildings are proposed to be removed to permit the comprehensive redevelopment of the Lands. They will have an approximate net lot area of 0.518 hectares after the conveyance of road widenings.

7The subject lands are surrounded generally by commercial uses (including retail, office, restaurants and service commercial) along King Street, John Street and Park Street and low- rise residential uses to the east and west.

The Hearing

8The Parties provided Affidavits from two expert land use planners, Andrea Sinclair on behalf of the Appellant and Joel Cotter representing the City of Waterloo. The Appellant also provided an Affidavit from Dan Currie, an expert in heritage conservation.

9Ms. Sinclair and Mr. Currie were qualified by the Tribunal as expert witnesses in their respective fields.

10Mr. Cotter was available during the proceeding but was not required to give oral testimony.

Proposed Settlement

11Ms. Sinclair provided the Tribunal with a high level but comprehensive overview of the proposed development, at the same time explaining the evolution of the development concept through extensive consultation with City staff.

12She submitted that, in general, the Minutes of Settlement propose to rezone the subject lands to Uptown Mixed‐Use 81 (U2‐81) with site specific provisions to facilitate the residential redevelopment of the subject lands with two 24‐storey high‐rise residential towers containing 347 units (468 bedrooms) with three levels of structured parking, primarily underground.

13She explained that the removal of the existing house at 217 King Street South (Wegenast House) and all other existing buildings was necessary to develop the property.

14She submitted that the proposed settlement includes Community Benefits in exchange for the 80 additional bedrooms pursuant to Section 37 of the Planning Act, as follows:

• Privately Owned Public Space (“POPS”) abutting King Street
• enhanced streetscape features along King Street South and John Street West
• elements to commemorate the 217 Wegenast House
• indoor community space in Tower 1

Planning Evidence

15In considering the proposed settlement, the Tribunal must have regard to matters of provincial interest under the Planning Act and be consistent with the Provincial Policy Statement (“PPS”) when rendering decisions on planning applications. The Tribunal must also ensure that the proposal conforms to the Growth Plan for the Greater Golden Horseshoe, the Region of Waterloo Official Plan, the City of Waterloo Official Plan, is good planning and is in the public interest.

1. The Planning Act

16In their written Affidavits, both land use planning experts provided a thorough review of the policy context, including the Planning Act, the Provincial Policy Statement 2020, the Growth Plan for the Greater Golden Horseshoe 2020, the Region of Waterloo Official Plan and the City of Waterloo Official Plan.

17In her oral testimony, Ms. Sinclair submitted that there are no natural areas or features on the subject lands that would be negatively impacted by the proposed development. She opined that the proposed development has regard for matters of provincial interest as per Section 2 of the Planning Act, in that:

• The development conserves features of architectural and cultural significance through the proposed commemoration of the Wegenast House and the retention of the associated site features including the stone walls, wrought iron gates and fences;
• The proposed development contributes to the orderly development of safe and healthy communities and has been designed to ensure accessibility for persons with disabilities;
• The proposed development is located proximate to educational, health, social, cultural and recreational facilities;
• The proposed development contributes to a range of housing;
• Development of the Subject Lands, which are located in a priority intensification area, will assist in the protection of the financial and economic well-being of the Province and its municipalities by providing housing and employment that will support the recent investment made in the Region’s Light Rail Transit;
• The Urban Growth Centre and Major Transit Station Areas are priority intensification areas and as such, the Subject Lands represent an appropriate location for growth and development;
• The development has been designed to be sustainable, to support public transit and to be oriented towards pedestrians; and
• The proposed development promotes a built form that is well-designed, encourages a sense of place and provides for public spaces that are of high quality, safe, accessible and vibrant.

18Mr. Cotter confirmed Ms. Sinclair’s opinion, stating that, in his professional opinion, the proposal as amended, and the Minutes of Settlement have appropriate regard to matters of provincial interest as set out in the Planning Act.

2. Provincial Policy Statement 2020

19Ms. Sinclair submitted that she also considered applicable policies of the 2020 PPS. The PPS framework directs 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.

20She submitted that. to sustain healthy, liveable and safe communities, the PPS directs the accommodation of a range and mix of residential types. She explained that the proposed development is transit supportive with convenient access to light rapid transit, bus transit, trails, and sidewalks.

21Ms. Sinclair opined that the proposal is consistent with the PPS. This was confirmed in Mr. Cotter’s written Affidavit.

3. Growth Plan for the Greater Golden Horseshoe, 2020

22Ms. Sinclair submitted that the 2020 Growth Plan 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 Urban Growth Centres and Major Transit Station Areas (“MTSAs”).

23She stated that the Growth Plan is guided by the principles of supporting the achievement of complete communities; intensification and higher densities to make efficient use of land and infrastructure and support transit viability; capitalizing on new economic and employment opportunities while providing certainty for traditional industries; supporting a range and mix of housing options; improving the integration of land use planning with investment in infrastructure and public service facilities; managing growth; conserving and promoting cultural heritage; protecting and enhancing natural heritage and agriculture; and integrating climate change considerations into planning.

24Ms. Sinclair concluded by opining that the Application conforms with the Growth Plan.

4. Region of Waterloo Official Plan

25Ms. Sinclair made reference to the local planning framework, including the Regional Official Plan (the “ROP”). The Subject Lands are located within the designated Built-Up Area. The general development policies of the ROP are aligned with the above-summarized Provincial planning directions, including the development of complete communities, protecting the natural environment and resources, and respecting the scale, physical character and context of established neighbourhoods.

26She submitted that a detailed analysis of the ROP is included in the Planning Justification Report and opined that the proposed Application conforms to the policies of the ROP.

5. City of Waterloo Official Plan

27Ms. Sinclair submitted that the policies of the City’s OP clearly illustrate the policy direction for intensification within the Urban Growth Centre. The proposed redevelopment implements the policies of the OP and will result in the residential intensification of an underutilized site in the Uptown Waterloo Urban Growth Centre. The proposed redevelopment provides residential uses on lands designated for such use and satisfies the density requirements of the OP.

Heritage Evaluation and Impact Assessment

28Mr. Currie explained that the MacNaughton Hermsen Britton Clarkson (“MHBC”) Heritage Impact Assessment (“HIA”) was completed consistent with Ministry guidelines found in the Ontario Heritage Toolkit, the policy direction in the City of Waterloo Official Plan, and the City of Waterloo’s terms of reference for such studies.

29He stated that an evaluation of the cultural heritage value of the subject property was completed as part of the HIA and can be found in Section 5 of the report. The cultural heritage evaluation in the HIA concludes that the building at 217 King Street South has cultural heritage value, as it meets the tests included in O.Reg. 9/06 under the Ontario Heritage Act. The building has design value as a representative example of the Queen Anne architectural style, historical value as the former home of George Wegenast, manager of the Mutual Life Assurance Company of Canada, and contextual value for its historic relationship with the adjacent former Mutual Life Assurance Company of Canada building.

30Mr. Currie went on to explain that, In August 2017, at the time the HIA was completed for the initial Zoning By-law Amendment application, the proposed development concept included the retention and adaptive re-use of the Wegenast House. As required by the City’s terms of reference, the HIA also assessed alternative development options including redevelopment of the site in its entirety and demolition of the house. The HIA states that if the demolition option is selected, measures to mitigate the impact of demolition should be undertaken including salvage and reuse of existing materials and features.

31He submitted that alternative development approaches were identified in the HIA. The proposed Minutes of Settlement are based on the alternative approach whereby the house will be removed, but the conservation recommendations of salvage and reuse of the stone and wrought iron fence, documentation of the house, and commemoration of the history of the site will be included as part of the proposed development.

32With respect to policy context, Mr. Currie relied on the Affidavit of Ms. Sinclair, which identifies that the PPS and the Growth Plan must be read in their entirety and concludes that, on balance, the proposed development is consistent with and conforms to the PPS and the Growth Plan respectively. While the house is proposed to be removed, some heritage attributes are proposed to be retained and conserved, the house has been documented, and the history and heritage value of the property are proposed to be commemorated.

33Mr. Currie took the Tribunal to Article 4 of the Section 37 Planning Act Development Agreement, which specified in detail the Appellant’s obligations with respect to Wegenast House.

34Mr. Currie concluded by opining that the proposed development conforms to the policies of the City’s official plan.

Participant Statement

35The Architectural Conservancy of Ontario North Waterloo Region Branch (“ACO”) submitted a Participant Statement to the Tribunal, expressing their concern that the existing residence at 217 King Street South, known as the “Wegenast House” would be demolished to accommodate the proposed development. The residence was constructed in 1889, in the Queen Anne Revival style. The first floor is red brick and the second floor is constructed of wood that is rendered in some intricate patterns that are not common in any house of this type in the City of Waterloo.

36The Tribunal notes that Mr. Currie’s written Affidavit and oral testimony provides a comprehensive response to the concerns raised by ACO. The Tribunal agrees that the PPS and the Growth Plan must be read in their entirety and concludes that, on balance, the proposed development is consistent with and conforms to the PPS and the Growth Plan respectively.

Analysis and Disposition

37Based on the written Affidavits provided by Ms. Sinclair, Mr. Currie and Mr. Cotter as well as the oral testimony provided by Ms. Sinclair and Mr. Currie, and the fact that the proposed settlement is on consent of all the Parties, the Tribunal finds that the proposed settlement for the proposed development appropriately addresses the matters of Provincial interest in Section 2 of the Planning Act, is consistent with the Provincial Policy Statement, 2020, conforms to the A Place to Grow, the Growth Plan for the Greater Golden Horseshoe (2020), conforms with the Region’s and City’s Official Plans, is good planning and in the public interest.

38The parties have confirmed, in the presentation of this settlement before the Tribunal, that they will each bear their own costs and no party will be advancing any request for costs to the Tribunal.

Order

39The Tribunal Orders that the appeal filed by 6965083 Canada Inc. with respect to its Zoning By-law Amendment application to the City of Waterloo By-law is allowed in part.

40The Tribunal Orders that the City of Waterloo Zoning By-law No. 2018-050 is hereby amended as set out in Schedule 1 to this Order and the Tribunal authorizes the municipal clerk of the City of Waterloo to assign a number to this by-law for record keeping purposes.

“T. Prevedel”

T. PREVEDEL 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.