Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 30, 2022
CASE NO(S).: OLT-21-001928 (Formerly PL200379)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: LJM Developments Inc.
Subject: Request to amend the Official Plan - Failure to adopt the requested amendment
Description: To permit a 13 and 16 storey mixed-use building
Property Address: 1593 & 1603 Highland Rd. W.
Municipality: City of Kitchener
Approval Authority File No.: OP20/001/H/AP
OLT Case No.: OLT-21-001928
Legacy Case No.: PL200379
OLT Lead Case No.: OLT-21-001928
Legacy Lead Case No.: PL200379
OLT Case Name: LJM Developments Inc. v. Kitchener (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: LJM Developments Inc.
Subject: Application to amend Zoning By-law No. 2019-051 - Refusal or neglect of City of Kitchener to make a decision
Description: To permit a 13 and 16 storey mixed-use building
Property Address: 1593 & 1603 Highland Rd. W.
Municipality: City of Kitchener
Municipality File No.: ZBA20/004/H/AP
OLT Case No.: OLT-21-001929
Legacy Case No.: PL200380
OLT Lead Case No.: OLT-21-001928
Legacy Lead Case No.: PL200379
Heard: January 24, 2022 to February 3, 2022 by video hearing
APPEARANCES:
Parties
Counsel
LJM Developments Inc.
Russell Cheeseman Stephanie Fleming
City of Kitchener
Lesley MacDonald Katherine Hughes
Region of Waterloo
Brian Duxbury
DECISION DELIVERED JATINDER BHULLAR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant/Appellant (the “Appellant”) is appealing under s. 22(7) and s. 34(11) of the Planning Act (“Act”) in respect of the City of Kitchener’s (the “City”) failure, refusal or neglect to make a decision on the Applicant’s application to amend the Official Plan and Zoning By-law Amendment (“ZBA”) pertaining to lands municipally known as 1593 and 1603 Highland Road West (“subject property”) in the City. These are located on the south side of Highland Road West, a regional road.
2The Appellant plans to demolish the existing two residential dwellings and proposes a residential development with some commercial space in the form of a combination consisting of 13-storey and 16-storey mixed-use buildings.
3Whereas originally the Appellant sought an official plan amendment, the parties have agreed that such is not required for the purposes of the proposed development. Therefore, an appeal regarding official plan amendment(s) to the City’s Official Plan (“COP”) or the Region of Waterloo Official Plan (“ROP”) was not before the Tribunal at this hearing and is not adjudicated upon are planned to be adjudicated upon.
4While each of the two properties has an existing residential dwelling, the subject lands are designated arterial commercial and are zoned Arterial Commercial ‘COM-3’ within Zoning By-law No. 2019-051 (“ZBL”) by the City. The existing residential uses on the subject property are considered legal non-conforming. The Appellant requests approval of a site-specific zoning amendment that will support the proposed development.
5For the reasons that follow, the appeals are allowed.
WITNESSES AND EXHIBITS
6The Appellant, the City and the Region called a number of witnesses. The Tribunal affirmed or swore all witnesses as appropriate. All witnesses were duly qualified in their area of expertise to provide expert opinion evidence accordingly. The acknowledgement of expert’s duties was confirmed with each witness before their presentation of evidence.
7The Appellant called the following:
John Ariens to provide expert opinion evidence in the area of land use planning.
Mark Masschaele to provide expert opinion evidence as a Professional Engineer with specialized expertise in the area of noise and vibrations.
8The Region called the following:
Melissa Mohr to provide expert opinion evidence in the area of land use planning. It was noted that Ms. Mohr being an employee needed to always keep her acknowledgement of expert’s duty in the forefront while providing evidence.
Eric Pisani to provide evidence in land use planning with focus on transit planning. Mr. Pisani being an employee at the Region was also reminded to keep his acknowledgement of expert’s duty in forefront while providing evidence.
9The City called the following:
Andrew Pinnell to provide expert opinion evidence in the area of land use planning. Mr. Pinnell being an employee at the City was remined to keep his acknowledgement of expert’s duty in forefront while providing evidence.
Niall Lobley to provide evidence in the area of parks and open space management, operations, and policy. Mr. Lobley being an employee at the City was reminded to keep his acknowledgement of expert’s duty in forefront while providing evidence.
10The following is a list of exhibits marked during evidence presentation by the parties:
Exhibit 1: Joint Document Book
Exhibit 2: Google Area Maps (two maps marked as Exhibit 2A and Exhibit 2B)
SITE CONTEXT
11Mr. Ariens provided information on the site context. The subject property has 80 metres (“m”) frontage on Highland Road west and has a depth of about 100 m representing a site area of about 0.8 hectares (‘ha”) or approximately two acres. The subject property is located within an area bounded by Highland Road West to the North, Ira Needles Boulevard to the East and Trussler Road to the South-Southwest. The subject property is about 500 m from the roundabout intersection of Highland Road West and Ira Needles Boulevard to the Northeast. There exists a large high rise building and generally different residential dwelling types on either side of Highland Road West and east of Ira Needles Boulevard.
12There is a shopping plaza with a variety of small and large commercial and retail establishments to service the residential communities in the vicinity. These establishments are located starting about 200 m from the Ira Needles Boulevard and Highland Road West intersection.
13Along the same side of Highland Road West where the subject property is located, there is a total of eight lots with mix of uses including three residential non-conforming properties, a self storage facility, a new commercial building, a food limited retail warehouse and an aircraft parts manufacturing/assembling establishment. On the opposite side to the north of Highland Road West exist a commercial cold storage facility, a supply and maintenance facility, a martial arts centre, a new printing services company, etc.
14Generally south and abutting the subject property is a mixed residential low-rise community in the area of Rauch Court. There are more residential dwellings in the remainder of the area to the northeast and southeast of Rauch Court. There is a large Waldau Woods Park conservation area inclusive of a small playground. There is a potential municipal service unused connecting six-metre-wide strip area that extends from Rauch Court to the subject property.
STATUTORY TESTS FOR OPA AND ZBA APPEALS
15This is a hearing de-novo regarding the Official Plan Amendment (“OPA”) and ZBA sought by the Appellant. The Tribunal must determine answers to the following to determine these appeals:
Do the OPA and ZBA have appropriate regard for the Provincial Interest and are consistent with the Provincial Policy Statement 2020 (“PPS”)?
Do the OPA and ZBA conform with the Growth Plan for the Greater Golden Horseshoe 2019 as amended (the “Growth Plan”)?
Do the OPA and ZBA conform with the Region of Waterloo Official Plan (“ROP”)?
Does the OPA satisfy the KOP requirements for assessment of OPAs and does ZBA conform with the City of Kitchener Official Plan (“KOP”), as amended by the OPA?
Do the OPA and ZBA represent good land use planning?
EVIDENCE
16It was agreed by all parties that the proposal does not require amendment to the ROP. It was also confirmed that parking, transportation and servicing were not identified as relevant issue in the context of the proposed development.
17This hearing was governed by a Procedural Order (“PO”) previously approved and issued by the Tribunal. The parties identified and organized the issues into separate six themes. The evidence was generally provided by the experts accordingly and they also provided concluding summary opinion evidence in relations to the determinative statutory tests based on their analysis o the various themes.
18The PO was not organized in the form of a hierarchical planning regime starting with the Act , the PPS, the Growth Plan and the applicable Official Plans. It was organized in themes. The evidence was presented in the form of consideration for the six themes which identify the issues in the PO follow by considerations of Provincial Interest per s. 2 of the Act and evidence regarding applicable aspects of good land use planning.
19In this decision of the Tribunal, this flow is continued, and evidence is addressed per the themes; evidence on regard for provincial interest; and regarding the proposed development’s attributes vis-a-vis good land use planning.
THEMES
THEME 1: Planned Community/Urban Structure and Managing and Directing Land Use and Growth:
Are the proposed Official Plan and Zoning By-law Amendments (Applications) consistent with the Provincial Policy Statement, 2020 (PPS), including Sections 1.1.1(a, c, e, f, g, i), 1.1.3.2 (a, b, c, d, e, f), 1.1.3.3, 1.6.7.4?
Do the Applications conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (Growth Plan), including Sections 2.2.1.2 (a (i and iii), c), 2.2.1.3 (a, b, c, e), 2.2.1.4 (a, b, c, d (i, ii, iii), e, f), 2.2.2.3 (a, b, e), 2.2.3 (1, 2(b)), and 2.2.4 (1, 2, 3.b)?
Do the Proposed Official Plan and Zoning By-law Amendments (Applications) implement the Planned Community Structure as set out in Section 2.B, 2.B.2 and 2.D.1 (a, c, f) of the Region of Waterloo Official Plan (ROP)?
Do the Applications conform to Section 2.B, 2.B.2 and 2.D.1 (a, c, f, h) of the ROP?
Is the land use and density of development proposed in the Applications appropriate for the location of the subject lands?
Do the Applications conform to the City of Kitchener Official Plan, including Sections 2.B.3 (1, 2, 4, 5), 2.B.4, 3.C.2 (all subsections)?
Does the requested zoning under By-law 2019-051 support the planned function of the area in accordance with the City of Kitchener Official Plan and the PPS?
20Mr. Ariens opined that the proposed ZBA is consistent with the PPS 2020 policies 1.1.1, 1.1.3.2,1.1.3.3 and 1.6.7.4. He testified that that the proposal represents a small infill development. He testified and highlighted that it is suitable for higher density consistent with policy 1.1.3.3 of the PPS 2020. He added that the development plans include sufficient bike storage, the site is nearby to an existing bus stop, there is a marked paved shoulder on the south side of Highland Road West that allows for direct access to a paved shoulder that is for possible bicycle use.
21Mr. Ariens testified that the proposed ZBA conforms with the Growth Plan policy 2.2.1.3 which directs that the growth and intensification will be focussed along locations adjacent to transit corridors. He stated that the subject property is about 500 m from the main transit corridor on Ira Needles Road while a bus stop for a connecting regional road is close by on Highland Road West. He further testified that the proposal includes a provision for 1052 square metres (“sq m”) of commercial space. He stated that this in part adds to the existing function of the arterial commercial designation of the subject lands.
22Mr. Ariens reviewed the ROP and opined that the ZBA conforms with the ROP. He testified that the subject property is in the urban designated area and is part of the growth and re-urbanization plans citing policy 2.0.1 in the ROP. He further added that the subject property is on a regional road with existing services. He noted that the ZBA will change the zoning from arterial commercial to mix-use commercial and that the minor change does not jeopardize the ROP. He cited examples that there was very little that differentiated arterial commercial from other commercial designations and that arterial commercial is a legacy designation which is not flourishing on this approximately 500 m segment of Highland Road West. He testified that the main driver for the arterial commercial being the automobile driven accesses to commercial services is substantially nonexistent on this stretch of Highland Road West. He referred to his context review which shows most existing uses inclusive of legal non-conforming residential uses that overall, this part of Highland Road West does not align with arterial commercial envisaged uses.
23Ms. Mohr stated that such intensification is more appropriate for other priority urbanization areas. However, Ms. Mohr opined that to implement the proposed development does not require any amendments to the ROP. Under questioning she replied that indirectly the proposed development conforms with the ROP.
24In reviewing the KOP aspects for Theme 1, Mr. Ariens stated that auto oriented and land extensive uses exist across multiple commercial zones and there is nothing this segment of Highland Road West inclusive of the subject property adds to or takes away from the KOP objectives or policies.
25Mr. Ariens summarized and opined that with respect to Theme 1, the proposed ZBA satisfactorily addresses all issues and positively supports the specific identified policies in the PPS 2020, the Growth Plan, the ROP and the KOP.
26Mr. Pinnell stated that the subject lands are located within an automobile-oriented area on the periphery of the city. The lands on the south side of Highland Road, including the subject property, are designated Commercial on Map 3 – Land Use and are identified as Arterial Corridor on Map 2 – Urban Structure. He added that the planned function of Arterial Corridors is to provide for a limited range of retail and service. However, Mr. Pinnell agreed that the uses on the Subject Property and many others on south side of Highland Road West in the 500 m stretch of this road, do not conform with the designations and zoning for arterial commercial uses. He stated that the mix of property uses include manufacturing, residential and legal non-conforming commercial.
27Mr. Pinnell opined in consideration of the PPS that the proposed development would lack facilities for pedestrian and cycling uses with possible safety issues in contradiction of PPS policies. He further testified that the proposal is not consistent with policy 1.1.3.2 and would lead to unjustified and uneconomic expansion.
28Mr. Pinnell opined that residential uses are not permitted under the Commercial/Arterial corridor policies. He added that there would be compatibility issues as a result. Mr. Pinnell emphasized that the intensification areas are well identified which should be the focus for such development. He characterized the proposed development as creating an orphaned residential cluster versus the planned function uses.
29Mr. Pinnell testified that in the context o the Growth Plan, the proposal would not allow for the planned function mix of uses and would be particularly detrimental to commercial uses expansion. Mr. Pinnell reviewed the identified policies o the KOP and testified that it reflects in kind the higher level policies of the PPS and the Growth Plan and the proposed development would not conform with the KOP.
30Mr. Pinnell opined in summary that the proposed Official Plan and Zoning By-law Amendments are not consistent with the Provincial Policy Statement and do not conform to the Growth Plan and City Official Plan. The proposed residential land use is not appropriate for this area and the requested zoning does not support the planned function of the area, as set out in the City’s Official Plan and the PPS.
Theme 2: Infrastructure (Sidewalks, Cycling Routes, Transit) and Parks in area to support the proposed development:
Is the development proposed in the Applications appropriate in the location of the subject lands given the existing and planned transportation infrastructure such as transit?
Are the Applications consistent with Sections 1.1.1 (a, c, e, f, g, i), 1.1.3.2 (a, b, c, d, e, f), 1.5.1 (a, b) and 1.6.1 (all subsections) of the PPS?
Do the Applications conform to Sections 2.2.1.4 (d (i, ii, iii), e, f), 3.2.1.1 and 3.2.2.1 of the Growth Plan?
Do the Applications conform to Section 2.D.1 (a, c, f, h), 3.B.1, 5.A.1, 5.A.2, 5.A.6, 5.A.8, 5.A.9, 5.A.14, 5.A.15 and 5.A.22 of the ROP?
Do the Applications conform to the City of Kitchener Official Plan, including Sections 8.C.1.1, 8.C.1.3, 8.C.1.4, 8.C.1.11, 8.C.1.13, 8.C.1.27, 13.C.1.7?
31Mr. Ariens stated that the development would have access to their side of Highland Road West a paved and marked shoulder. This albeit not most suitable for pedestrians does allow for bicycling as it is currently so used by limited cycling traffic. He added that there already exists a bus service which at present is geared towards rush hours but is planned to be expanded and could be further expanded as the transiting requirements for the proposed residences develop.
32Mr. Ariens informed the Tribunal in reviewing the policies of the PPS and the Growth Plan that the Appellant has offered to pay for the development of a suitable sidewalk to the Ira Needles Boulevard/Highland Road West traffic circle where the multiuse boulevard trails become accessible. He opined these initiatives and existing infrastructure allow for suitable servicing of the needs of the future users of commercial space as well as residential occupants. In this way they could further interwork with available pedestrian, cycling and transportation infrastructure.
33In reviewing the ROP, Mr. Ariens stated that the City has updated its master plan inclusive of trails and cycling paths and that the ROP needs to be updated accordingly. He opined that the City plans show possible expansion of trail and such facilities access to this section of Highland Road West where the development is proposed. Mr. Ariens further opined that given the redesignation of lands to employment north of Highland Road West, opposite of the proposed development, it behooves on the City and the Region to further develop and plan for interconnections to pedestrian, cycling and such paths and trails which are in proximity to these areas.
34Ms. Mohr testified that the subject site is not on an existing or planned cycling route. She testified that the region has accountability along the Highland Road West regarding road shoulder or path improvements. She added that no transit corridor changes were expected, and none were planned regarding transportation infrastructure in the regional planning horizon to 2041.
35Mr. Pisani provided evidence regarding transit planning. Mr. Pisani stated that Highland Road West is part of a service that originates from Wilmot and is considered a limited rural route. He stated that there is a stop to the West of the Subject Property in the vicinity of Heroux Devtek. He added that the mini-busses generally run in the peak hours during the morning and the afternoon for a total of nine roundtrips per day. Mr. Pisani testified that this translates to bus running at about every 45 minutes versus Ira Needles Boulevard as an urban transit service could see busses running every 15 minutes. Mr. Pisani testified that plans are in place to increase the frequency of trips at 17 roundtrips per day over a peak-extended timeframes each weekday with no service on weekends.
36Mr. Pisani also reviewed the bus service along Ira Needles Boulevard with full non-rural service. There was general consensus between the experts that the nearest stop on Ira Needles Boulevard is situated at about 400-500 m from the Subject Property. Whereas the Appellant postulated that it would be considered a reasonable walking distance, Mr. Pisani did not fully agree considering lack of pedestrian paths along part of Highland Road West.
37Mr. Pisani commenting on the Appellant suggestion that they are willing to fund a pedestrian path to connect their property to Ira Needles Boulevard stated that there are few steps that are needed including a feasibility assessment, an environmental assessment, and operational maintenance and upkeeping of such a pedestrian facility. Mr. Pisani during cross-examination concurred that a temporary arrangement may be possible without an environmental assessment. He also concurred that paved shoulder, as on the south side of Highland Road West, is identified for possible cycling uses on Regional road infrastructure even though it may no be the best arrangement versus dedicated bicycle paths.
38Mr. Lobley testifying for the City regarding parks and open spaces stated that the area is not well served. He testified that the Rauch Court and the linked neighbourhood is already deficient in parks and playgrounds with respect to goals established by the City. Referring to Waldau Woods, Mr. Lobley stated that the approximately 4.8 ha area does have a small play structure but it is a natural area for walking and visiting for strolls. During cross-examination Mr. Lobley confirmed that the deficiencies have persisted for more than a decade dating back to the time the subdivision to the south of the Subject Property was built. He confirmed that whereas there is deficiencies regarding neighbourhood park and open space facilities, the upper level parks and community centres are accessible within their defined geographic coverage vis-à-vis the Subject Property and the neighbourhood to the south. He stated that these include the West Meadows Park situated about 950 m away as well as a Rolling Meadows facility located about 1.4 km away.
39Mr. Lobley opined that the City prefers to have planned parks and community open spaces to be in place or planned before any residential dwellings become available. With limited space in the neighbourhood there were few opportunities to do so. He agreed that the City accepts cash-in-lieu as means to opportunistically create facilities for residents. He added that the City has in the past in this neighbourhood worked with Ontario Hydro which has substantive powerline corridor in the vicinity. He stated that while the Ontario Hydro corridor has limitation with respect to setting up playground structures, picnic areas, etc., it can provide for possible development of trails and paths. He testified that the City will be in review of the Ontario Hydro corridor master agreement in the near future. He opined that cash-in-lieu for park space will be of benefit to the neighbourhood in this area through possible improvements for residents and he would welcome it.
40In response to possible use of a covered service corridor that interposes between the Subject Property and Rauch Court for access to possible commercial services planned at the Subject Property as well to access other trails and paths north of Highland Road West; Mr. Lobley stated that he has not fully assessed its possible utility. He stated that if such a corridor could suitably accommodate pedestrian and bicycling accesses with permanent easement through the Subject Property that it could provide interconnection between two public areas on Highland Road West and the Rauch Court. He stated that the potential to develop and interconnect the community south of Highland Road West to possible bicycling network and trails that exist further north of Highland Road West could possibly be facilitated this way.
41Mr. Lobley concluded that the area lacks good links to facilities and trails and is deficient in parks. He stated that the proposed development will lead to worsening of situation in terms of meeting City objectives for parkland. Under cross-examination he confirmed that in some ways this situation was of City’s own making when community around Rauch Court and south of there was developed without meeting parks and community space objectives.
42Mr. Pinnell repeated many of his assertions in the context of the PPS and the Growth Plan that he made as part of his evidence in Theme 1. He opined that the proposal does not lend itself to the planned development of healthy, active communities. He concurred with the evidence of Mr. Lobley and Mr. Pisani in this regard. He provided further emphasis in his evidence to pedestrian connectivity and identified existing deficiencies given a paved shoulder is the only maintained facility available for such uses and general lack of infrastructure linked for such purposes.
43Mr. Ariens reviewed the Theme 2 identified KOP policies. He opined that the KOP already recognizes the importance of pedestrian and cycling accesses for this part of Highland Road West. He added that the cash-in-lieu and development charges should further support such improvements. He stated that the possible pedestrian access to Rauch Court over a covered servicing access could enhance further choices for residents of the proposed development. He opined that this would provide the users of the proposed development with services no different than what is currently available to residents on Rauch Court and the surrounding existing development.
Theme 3: Compatibility of Proposed Residential Use with Adjacent Planned Industrial and Commercial Lands, and Existing Industrial and Commercial Uses:
Is the development proposed in the Applications compatible with the adjacent existing and planned industrial land uses, consistent with Sections 1.2.6.1, 1.2.6.2 (all subsections) and 1.3.2.1 of the PPS, and in conformity with Section 2.2.5.8 of the Growth Plan and Section 2.G.10 of the ROP and applicable guidelines?
Has it been demonstrated that the Ministry of Environment Conservation and Parks (MECP), “D-6 Compatibility between Industrial Facilities” been complied with; any potential adverse impacts can be minimized and appropriately mitigated and, any potential impacts to industrial, manufacturing or other uses are minimized and mitigated?
Do the Applications conform to the City of Kitchener Official Plan, including Sections 6.C.3.1, 6.C.3.5?
Does the requested zoning under By-law 2019-051 allow uses that are compatible with existing uses, permitted uses, and proposed / planned uses in the area?
44It was submitted by the Appellant and agreed to by the City and the Region that that industrial use sensitivity in the context o the proposed development is not an issue at this hearing.
45Mr. Ariens stated that he adopts the expert opinion evidence of Appellant witness Mr. Masschaele. In his evidence Mr. Masschaele opined that sufficient separation distances exist from the proposed development to existing possible conflicting use or any uses in the future per planned designations for lands north of Highland Road West which are directly opposite of the proposed developments. He provided analysis with respect to the applicable D-Series Guidelines which was uncontroverted as no other qualified witnesses in this specialization were presented by the City or the Region.
46Mr. Ariens noted that there are numerous instances where sensitive land uses already co-exist with other impacting uses like landfills. He cited a significant residential development adjacent to the Region’s landfill site. Mr. Ariens further noted that there were no objections received from nearby industrial/commercial users and that no one is appearing before the Tribunal with and comments or submissions.
47Mr. Ariens stated that existing adjacent users; Heroux Devtek and Spinal Garage; are also separated from the proposed development by water bodies on either side of the proposed development. Mr. Masschaele opined that the existing businesses operating as Heroux Devtek and Erb Cold Storage are considered Class II in the context of D-Series guidelines and the proposed development and he opined that based on his analysis the proposed development does not impinge in terms of setbacks from these businesses.
48Mr. Ariens opined that a mixed use building like the proposed commercial/residential can co-exist without any compatibility issues.
49Ms. Mohr stated that she was not an expert to provide opinion evidence regarding the use of D-6 guidelines for compatibility between the proposal and existing plus possible planned uses in the vicinity. She did suggest that avoidance is an alternative given that other locations were more suitable for intensification. Under cross-examination Ms. Mohr confirmed that there is nothing in the ROP which restricts intensification along Highland Road West where the Subject Property is located. Ms. Mohr during redirect stated that there is potential for the proposed development to create growth or change issues for businesses in the vicinity like Erb Cold Storage.
50Mr. Pinnell opined that the proposed development is in-consistent with policy 1.2.6.1 of the PPS. He concurred with the evidence of Ms. Mohr that the proposal with sensitive residential uses could restrict future commercial and employment uses as allowed under the KOP and the associated zoning permissions.
Theme 4: Planning: and Protection of Employment Lands and Commercial Lands:
Are the Applications consistent with the PPS, including Sections 1.2.6.1, 1.2.6.2 (all subsections), 1.3.1 (all subsections), 1.3.2.1, 1.3.2.2?
Do the applications conform with the Growth Plan, including Sections 2.2.5.1 (all subsections), 2.2.5.6, 2.2.5.7 (c), 2.2.5.8?
Do the applications conform to Section 2.G.10 of the ROP?
Do the Applications conform to the City of Kitchener Official Plan, including Sections 5.C.1.1 (g, h), 5.C.1.3, 5.C.1.4, 5.C.1.8, 5.C.1.9, 15.D.5.1, 15.D.5.3, 15.D.5.5, 15.D.5.8, 15.D.5.15, 15.D.5.16 (all subsections), 15.D.5.17 (all subsections), 15.D.5.19, 15.D.5.20 (all subsections), 15.D.5.21 (all subsections), 15.D.6.1, 15.D.6.2, 15.D.6.3, 15.D.6.4, 15.D.6.14?
Does the requested zoning under By-law 2019-051 allow uses that are compatible with existing uses, permitted uses, and proposed / planned uses in the area?
51Mr. Ariens testified that the land on south side of Highland Road West where the subject property and the adjoining properties are located, does not carry an employment zone or employment lands designation. He stated that the subject site is designated “arterial commercial”. Mr. Ariens opined that the proposed development thus causes no changes to the status quo with respects to issues specific to employment lands.
52Mr. Ariens opined that based on the land uses in this segment of Highland Road West with arterial commercial designation, there is very little that is flourishing or established save for a self-storage business and a gas bar as examples.
53In reviewing Policy 15.D.5.16 and 15.D.5.17, Mr. Ariens noted that majority of uses specified in arterial commercial designation are generously available across many different land use designations. The only aspect that arterial commercial specifically differentiates with is that it does not include residential dwellings. Mr. Ariens noted that form a handful of properties covered on Highland Road West with arterial corridors designation, there properties have existing residential dwellings, albeit legal non-conforming. He added that the purpose of the OPA is to seek permission for residential uses while commercial uses as envisaged in the proposed development are already permitted.
54In the context of policies such as 15.D.6.1 through policy 15.D.6.4 regarding the protection of employment areas, Mr. Ariens opined that he subject ands are not designated for Employment.
55Mr. Ariens again referred to the testimony of Mr. Masschaele’s and analysis including D-6 Guidelines and associated noise studies opined that adequate separation distances are also proposed to be supplemented by mitigation measures regarding noise for the proposed development.
56Mr. Ariens concluded and opined that the existing employment lands north of Highland Road West can continue to exist and operate without detriment from the proposed development.
57Mr. Pinnell reviewed the policy framework and opined that the proposal being majority residential is incompatible with the existing uses on Highland Road West on the south side as well as established or employment uses in areas on the north side of Highland Road West. Like Ms. Mohr, Mr. Pinnell informed that he was not qualified to provide opinion or expert evidence on the application and interpretation of the Provincial D series guidelines.
Theme 5: Compatibility of Proposed High Density Residential Use with Adjacent Low Rise Residential Uses:
Do the Applications conform to the City of Kitchener Official Plan, including Sections 4.C.1.8 (a, b, d, e, f), 4.C.1.9?
Are the requested zoning regulations under By-law 2019-051 (e.g., setbacks, lot coverage) appropriate and compatible with surrounding uses?
58Mr. Ariens in considering the KOP policies noted that proposed stepbacks in the rear, with skinny side facing the existing residential dwellings on Rauch Court and the gradually rising towers with floors having increasing step backs would allow for compliance with the need to meet 45 degree angular plane and will thus ensure that any overlook and privacy concerns are minimized. He referred to the angular plane analysis provided by the Appellant project architect. He noted that minor protrusions on the upper floor of the towers, but this is not habitable space.
59Mr. Ariens reviewed various aspects o the planned designs which would ensure that the proposed development in the form of towers is compatible with existing low rise residential dwellings. He stated that the lowest 2 ½ floors will provide for indoor parking with no habitable openings. These will be setback 5.28 m from the common lot line and shielded from views by fencing and a landscaped buffer. He added that mature trees will be planted as part of any future site plan application thereby creating a tree screen. He testified that the parking garage wall can also become a “green wall” with the introduction of climbing plants and ivies. Different brick patterns and textures can also add architectural interest to this wall. He opined that the proposed development is designed to suitably co-exist with surrounding residential uses.
60Mr. Ariens reviewed that proposed development in the context of street presence on Highland Road West as well as other commercial uses in the neighbourhood. Mr. Ariens stated that the ground floor commercial/office uses will further animate the street scape and the front yard setback will result in a very aesthetically pleasing streetscape. The division of the building into two towers also reduces the overall mass and bulk of the building. The podium lower floors also match the mass of the adjacent self storage warehouse located to the immediate east.
61Mr. Ariens opined that in consideration of issues in Theme 5, the proposed development conforms with the required KOP policies and that the proposed zoning requirements are appropriate and suitable in the context of the surrounding uses.
62Mr. Pinnell testified that the proposal would allow 16 and 13 storey residential towers (i.e., 50 metre building height) with a gross floor area of 42,273 sq m. He added that while the Floor Space Ratio (“FSR”) has not been provided by the Appellant he estimates it to be approximately 5.2 (42,273 m2 building floor area / 8,121 m2 lot area). He compared it to the Mixed Use Three (MIX-3) Zone where the highest intensity Mixed Use zone and its regulation limit building heights to 10 storeys (i.e., 32 metres) and FSR to 2.0.
63Mr. Pinnell opined that opinion that the proposed applications would facilitate residential development/use that is not appropriate in massing and scale and is not compatible with the built form and the community character of the established neighbourhood. He added that the proposed applications would allow development that is not sensitive to the exterior areas of adjacent low rise residential uses and does not respect existing character of the residential neighbourhood to the south or the Arterial Corridor/Commercial neighbourhood on Highland Road. Sensitivity to surrounding context, as well as compatibility, are lacking.
Theme 6: Considerations for Official Plan Amendments
Do the Applications conform to the City of Kitchener Official Plan, including Section17.E.2.16 (all subsections)?
64Mr. Ariens adopted his witness statement in full and referred to it in reviewing Theme 6. He stated that all necessary background and technical reports and studies as were identified by City and Regional Staff. The redevelopment of the subject lands is in conformity with Provincial and Regional policies and plans. Intensification is directed throughout the built up area and not exclusively to designated intensification areas or corridors. The need for a Regional Official Plan amendment was never identified by Regional Staff.
65Mr. Ariens testified that the redevelopment is also in conformity to the vision, goals, objectives and policies of the Plan and there is a need for the proposed use particularly as the City and Region now need to accept additional population growth to 2051.
66Mr. Ariens testified that the subject lands are suitable for the intended use and there are no physical or natural heritage constraints to development. Land use compatibility with existing and planned uses is achieved and adverse impacts are avoided or can be mitigated.
67Mr. Ariens reviewed municipal and utility services and testified that these were available and community infrastructure was also readily available. He alluded to the Appellant offer to assist with adding pedestrian path which would if implemented enhance pedestrian and other non-motorized uses along Highland Road West with possible connectivity to the trails and paths network along Ira Needles Boulevard and the Hydro corridor.
68Mr. Ariens further reviewed this Arterial Corridor characteristics and stated that it is ideally suited for mixed use development. He opined that this Arterial Corridor is clearly not functioning as an “highway commercial” area as is seen by past, existing, and recent development activity. He added that reduced dependency on private automobiles together with the availability and proximity of transit sets a desirable precedent for similar redevelopment. He opined that the full range of arterial commercial uses are allowed in other locations and therefore there is no concern about removing a limited supply of land capable of accommodating this use.
69Mr. Ariens summarized and opined that with respect to Theme 6, the redevelopment of the subject lands is in conformity to the Official Plan policies identified when considered in the context of requested OPA to the KOP.
70Mr. Pinnell reviewed his analysis section 17.E.2.16 (Exhibit 1, page 3213, and para 130) and stated that the OPA does not meet the requisite requirements for site-specific amendments to the City’s OP. He applied parts of his testimony from Themes 1 through Theme 6 and opined that the OPA does not conform to Policy 17.E.2.16 of the KOP.
PROVINCIAL INTEREST
71Mr. Ariens reviewed s. 2 of the Act. He stated that the applicable provincial interest clauses are s. 2 (e, f, g, h, i, j, k, l, m, o, p, q, r and s). He opined that the proposed development has regard for the provincial interest as it provides for:
Efficient and compact land use with more than 400 residential dwellings with a mix of commercial uses;
Good development as there are no technical deficiencies with respect to servicing and efficiency will be achieved as services shared with large number of residential dwellings;
Recycling and thus reduction in waste;
A development that will be ADA compliant and will also contribute towards overall improvement for the neighbourhood for pedestrians and other uses through cash-in-lieu and development charges;
Use of existing educational and school resources to serve the resident in the proposed development;
Different residential unit types as 1, 2 and 3 bedroom configurations adding to choices and possible greater affordability of housing types versus the semi and detached that exist in the neighbourhood;
Live/work proximity possibilities with substantial lands north of Highland Road West being designated employment uses;
Well-being of the province, the region and the City is contributed towards through development charges and cash-in-lieu contributions;
Duly considered development proposal having been reviewed with other bodies with interest including the appropriate conservation authority;
No safety issues are incurred with as a minimum a paved shoulder access being available for interconnecting with multi-use cycling and pedestrian paths on Ira Needles Boulevard;
No restriction on adjacent and vicinity land uses as presently designated;
A sustainable land use for accommodating commercial and residential mix;
A well designed built form as noted by the City staff and provides for active presence on the street; and
A move away from an automobile centric arterial commercial restricted use that does not flourish in the area with a mix use that fits better. The change does not overly restrict possible uses allowed under arterial commercial designation as nothing is excluded from possible allowed uses and only residential dwellings as a permitted use is added through the OPA on a site specific basis.
72Mr. Pinnell reviewed s. 2 of the Act and stated that the following subsections were applicable for consideration that the proposal is required to have regard for:
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
(h) the orderly development of safe and healthy communities;
(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;
(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;
(k) the adequate provision of employment opportunities;
(o) the protection of public health and safety;
(p) the appropriate location of growth and development;
(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
(r) the promotion of built form that,
(i) is well-designed,
(ii) encourages a sense of place, and
(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;
73Mr. Pinnell opined that there was not an adequate provision of transportation services. He added that there could also be negative impacts on employment lands north of Highland Road West. Mr. Pinnell stated his concerns regarding pedestrian and non-automobile users because of limited dedicated paths or trails and noted that only the regional road paved shoulder was available on Highland Road West till it meets on the east with Ira Needles Boulevard. Mr. Pinnell confirmed that the was not an architect or an urban planner but he believed that the “dragon back” design and reduced setbacks do not create a sense of place or are well designed.
ANALYSIS AND CONCLUSIONS
74The oral and evidence and written evidence in this hearing was organized towards the six themes. Each theme had a mix of policies, plans and by-law aspects. Whereas it may have been good way to portray and assess the proposed development, the statutory tests require that the Tribunal must apply in its determination wholesome and totality of the planning framework policies and plans whether it is the provincial interest, the PPS, the Growth Plan, the ROP or the KOP and the ZBL.
75The Tribunal in its determinations has depended upon the information on file, all the exhibits, the oral evidence at the hearing, and submissions of all the parties and others. The Tribunal has extracted from the evidence presented in each theme to determine regard for the provincial interest, consistency with the PPS, conformity with the Growth Plan, conformity with the ROP, conformity of the OPA regarding its appropriate evaluation as directed in the OPA, conformity of the ZBA with the KOP, and consideration for good land use planning.
Regard for Provincial Interest
76In his evidence, Mr. Pinnell raises apprehensions regarding safety of residents, impacts on possible employment uses and compatibility of the proposed development with existing residential plus commercial uses. Mr. Ariens have used the evidence on file to show that the services for all are legally available albeit these could be improved referring to possible proposed contribution by the Appellant towards improving pedestrian and cycling infrastructure between the subject property and Ira Needles Boulevard to the east. Mr. Pinnell also referred to the uncontroverted expert opinion evidence of Mr. Masschaele which establishes that there are no negative impacts when D-series guidelines were used for assessment. Mr. Mobley emphasized that cash-in-lieu could be helpful in community services in the area. Mr. Pisani presented possible improvements in public transportation access. There is no question that changes and improvements would be desirable but based on the evidence presented it was shown that these are no more than what is expected in intensification oriented developments as proposed.
77Having so considered the requirements under s. 2 of the Act and the evidence before it, the Tribunal finds that the proposed development as implemented through the requested OPA and ZBA has due regard for the Provincial Interest.
Consistency with the PPS
78Across the six themes some of the specific PPS policies considered include the following (extracted from the PO and Issues List);
Are the proposed Official Plan and Zoning By-law Amendments (Applications) consistent with the Provincial Policy Statement, 2020 (PPS), including Sections 1.1.1(a, c, e, f, g, i), 1.1.3.2 (a, b, c, d, e, f), 1.1.3.3, 1.6.7.4?
Does the requested zoning under By-law 2019-051 support the planned function of the area in accordance with the City of Kitchener Official Plan and the PPS?
Are the Applications consistent with Sections 1.1.1 (a, c, e, f, g, i), 1.1.3.2 (a, b, c, d, e, f),1.5.1 (a, b) and 1.6.1 (all subsections) of the PPS?
Is the development proposed in the Applications compatible with the adjacent existing and planned industrial land uses, consistent with Sections 1.2.6.1, 1.2.6.2 (all subsections) and 1.3.2.1 of the PPS, and in conformity with Section 2.2.5.8 of the Growth Plan and Section 2.G.10 of the ROP and applicable guidelines?
Are the Applications consistent with the PPS, including Sections 1.2.6.1, 1.2.6.2 (all subsections), 1.3.1 (all subsections), 1.3.2.1, 1.3.2.2?
79Whereas Mr. Mobley and Mr. Pisani with specific and narrow policy analysis within their areas of expertise opined that there is inconsistency with the PPS, it must be noted that this has limited and scoped interpretation and not where the PPS is to be read as a whole. On the other hand, Mr. Ariens and Mr. Pinnell in addition to PPS policy analysis specific to each of the themes also reviewed it in the context of reading the PPS as a whole.
80Major areas of contest between the planners were the preservation of planned function, impacts on adjacent land uses, and the incompatibility of a residential use in an arterial corridor setting. Mr. Ariens established through his analysis that an infill intensification as proposed is encouraged by the PPS. He also established through the expert testimony of Mr. Masschaele that there were no cross impacts on employment or industrial land uses north of Highland Road West. Mr. Ariens also provided evidence that the proposed development has been so designed through angular plane verification and other architectural features that it will not cause undue negative impacts. Mr. Pinnell stated his apprehensions regarding pedestrian safety, incompatible land use and possible uneconomic consequences without any substantiation or through dependence on any expert witnesses.
81The Tribunal having considered the competing opinion evidence of Mr. Ariens and Mr. Pinnell prefers the evidence of Mr. Ariens. Mr. Ariens has established that the development would add to economic prosperity of the Region and the City, provide for and add to housing choices. The Tribunal also takes notes that the Appellant’s proposed cash-in-lieu benefits as well willingness to voluntarily provide for additional positive improvements at their own cost would further benefit the adjoining community.
82The Tribunal finds that the proposed OPA and ZBA maintain consistency with the PPS when all the policies are considered in due context.
Conformity with the Growth Plan
83The six themes addressed the following policies in the growth plan among additional supplementary commentary and overall review by the witnesses:
Do the Applications conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (Growth Plan), including Sections 2.2.1.2 (a (i and iii), c), 2.2.1.3 (a, b, c, e), 2.2.1.4 (a, b, c, d (i, ii, iii), e, f), 2.2.2.3 (a, b, e), 2.2.3 (1, 2(b)), and 2.2.4 (1, 2, 3.b)?
Do the Applications conform to Sections 2.2.1.4 (d (i, ii, iii), e, f), 3.2.1.1 and 3.2.2.1 of the Growth Plan?
Is the development proposed in the Applications compatible with the adjacent existing and planned industrial land uses, consistent with Sections 1.2.6.1, 1.2.6.2 (all subsections) and 1.3.2.1 of the PPS, and in conformity with Section 2.2.5.8 of the Growth Plan and Section 2.G.10 of the ROP and applicable guidelines?
Do the applications conform with the Growth Plan, including Sections 2.2.5.1 (all subsections), 2.2.5.6, 2.2.5.7 (c), 2.2.5.8?
84Mr. Pinnell presented that the proposal would not maximize commercial use as intended for Arterial Commercial, it would not follow the planning function approach and could interfere with employment and industrial uses in the vicinity. Mr. Ariens testimony established that there is very little unique about the Arterial Commercial and it shares most uses with other commercial designations. Mr. Ariens and Mr. Pinnell also agreed that the area designated Arterial Commercial on the south side of Highland Road West hardly carries forward the intent of the designation. There are legal non-conforming uses including residential uses and other uses not envisioned in Arterial Commercial. The Appellant witness Mr. Masschaele provided uncontroverted testimony to show that the proposal does not impinge or create negative impacts vis-à-vis employment and industrial that Mr. Pinnell highlighted.
85The Tribunal having considered the testimonies and concerns finds that the proposal based on the OPA and ZBA conform with the Growth Plan.
Conformity with Region of Waterloo Official Plan
86It was agreed to between the three planning experts that to carry out the implementation of the prosed development, an amendment to the ROP is not necessary. Ms. Mohr providing evidence directly confirmed it as well. The Region’s generally submission in this respect is that the “planning function” and its preservation in implementing developments is paramount.
87The Tribunal finds that the OPA and ZBA as proposed while seeking changes do not create any non-conformity with the ROP.
Conformity with the City of Kitchener Official Plan
88The KOP allows consideration of amendments to the KOP. However, the KOP requires that such an OPA satisfy the requisites set in 17.E.2.16. Mr. Ariens provided detailed analysis in Theme 6 with opposing views presented by Mr. Pinnell emphasized that such intensifications are more suitable for locations served by higher order transit. Mr. Pinnell emphasized this assertion by referring to the successful implementation of ION rapid transit in the City. Mr. Ariens argued that there can be no exclusivity implied in such policies and opportunistic infill intensification can equally co-exist.
89In consideration of the evidence the Tribunal finds that the OPA satisfies policy 17.E.2.16 and thus is appropriate.
90The requested ZBA to implement mix-use residential would interface with existing residential to the south on Rauch Court. Mr. Pinnell opined that the sought reduced rear yard setback, “wedding cake” type wedge shape interface to Rauch court and the overall density are too high. He suggested that a customized regulation be set if such development were to be allowed.
91Mr. Ariens’s evidence showed that the placement, the architecture attributes would liven the street, have due consideration for any noise, shadows and overlook aspects without causing undue impacts. Mr. Ariens further added that the proposed development would add to the variety of housing options in the area.
92Weighing the evidence of Mr. Ariens and Mr. Pinnell the Tribunal finds that the requested ZBA provides for an appropriately minimizes any possible negative impact and is thus in conformance with the KOP, as amended by the OPA.
Good Land Use Planning
93Were the Tribunal to accept the thrust o the witnesses for the Region and the City, it would have led to acceptance of the summary planning opinion provided by Mr. Pinnell and Ms. Mohr that the proposal does not represent good land use planning. However, as indicated in the analysis so far, the Tribunal has preferred the planning evidence of Mr. Ariens on each of the statutory tests.
94Mr. Ariens opined that the OPA and ZBA having had regard for the Provincial Interest, being consistent with the PPS, conforming with the Growth Plan and the ROP as well as the KOP, suitably develops into a good planning context. Mr. Ariens thus opined that the OPA and ZBA represent good land use planning.
95In the consideration of the opposing opinions and the responding strength o the Mr. Ariens expert planning evidence, the Tribunal find that the OPA and ZBA represent good land use planning.
Other Matter
96Throughout the hearing the Tribunal encouraged all experts to speak to possible enhancements or suggestions to improve upon the proposed development guided by the revised OPA and ZBA sought by the Appellant. The Region and City witnesses did not provide any alternate or suggested changes. Mr. Pinnell did confirm that the form and structure of the OPA and ZBA were appropriate for implementing as submitted should the Tribunal so allow the appeals.
97In the final submission, City counsel for the City sought from the Tribunal that should it allow the appeals in part that the approval be made conditional to further review and consultation between the parties.
98The Tribunal notes that it is important to provide finality in its decisions specially absent any compelling rationale to justify otherwise. The Tribunal finds against the request of the City for an interim approval or approval in principle.
Disposition
99The Appellant appeals regarding the requested OPA and ZBA are allowed.
ORDER
100THE TRIBUNAL ORDERS that the appeal is allowed and the Official Plan for the City of Kitchener is amended as set out in Attachment 1 to this Order.
101THE TRIBUNAL ORDERS that the appeal is allowed and By-law No. 2019-051 is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk of City of Kitchener to assign a number to this by-law for record keeping purposes.
“Jatinder Bhullar”
JATINDER BHULLAR
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.
ATTACHMENT 1
AMENDMENT NO. TO THE OFFICIAL PLAN OF THE CITY OF KITCHENER
THE CITY OF KITCHENER
1593 & 1603 Highland Road West
AMENDMENT NO. TO THE OFFICIAL PLAN OF THE CITY OF KITCHENER
SECTION 1 – TITLE AND COMPONENTS
This amendment shall be referred to as Amendment No. to the Official Plan of the City of Kitchener. This amendment is comprised of Sections 1 to 4 inclusive.
SECTION 2 – PURPOSE OF THE AMENDMENT
The purpose of the Official Plan Amendment is to add a site specific policy area to permit the development of the lands municipally addressed as 1593-1603 Highland Road West with a 13 & 16 storey mixed-use building, including residential dwelling units.
The amendment is comprised of the following changes:
Map 5 (Specific Policy Areas) is amended by adding Specific Policy Area
Adding Policy 15.D.12. to Section 15.D.12 to permit dwelling units within a building, containing permitted and compatible commercial uses
Specific Policy 15.D.12. amends one policy in Arterial Corridor Urban Structure designation
Policy 3.C.2.41 is amended to accommodate a limited range of dwelling units, provided that retail and service commercial uses are located within the same building
Specific Policy 15.D.12. amends one policy in the Commercial land use designation
- Policy 15.D.5.16 is amended to permit dwelling units located in the same building as compatible commercial uses on lands designated Commercial and identified as ‘Arterial Corridor’.
SECTION 3 – BASIS OF THE AMENDMENT
The subject lands are designated as ‘Arterial Corridor’ in the Urban Structure portion of the Official Plan. Arterial Corridors have historically been developed with auto-oriented, service commercial uses, therefore the planned function of this designation has been to provide a limited range of retail and service commercial uses intended to predominantly service those travelling by automobile. The Official Plan also considers ‘Arterial Corridors’ to be a part of ‘Secondary Intensification Areas’. The primary objective of Intensification Areas are to provide a broad range and mix of uses in an area of higher density and activity than surrounding areas. This is in line with the intent of adding the residential component to the proposed building, creating a mixed use development.
The subject lands are designated as ‘Commercial’ in the Land Use portion of the Official Plan. The permitted uses on lands designated ‘Commercial’ and identified as an Arterial Corridor include; auto- service stations, commercial entertainment, financial establishments, office, personal services and restaurants. The surrounding context of the subject lands display significant commercial growth in the Boardwalk Clusters, identified as a City Node and transit expansion along Ira Needles Boulevard, for which a residential base would aid in achieving complete communities.
The applicant is requesting an Official Plan Amendment to allow the subject lands to have the permitted use of dwelling units within a building that contains compatible and permitted commercial use. This would allow for the future construction of a development concept that includes:
A new Building
With approximately 403 dwelling units located above the ground floor
1,052 square metres of office/ commercial space
The applicant has applied for a Zone Change that adds a Site-Specific use that mirrors the request to permit dwelling units within a mixed use building, containing at least one other permitted use and also deals with other development characteristics, including reducing the minimum side yard and rear yardsetback permissions, increasing the maximum building height and lot coverage permissions, and specifying that parking spaces and drive aisles may be located on the ground floor.
SECTION 4 –THE AMENDMENT
The City of Kitchener Official Plan is hereby amended as follows:
a) Part D, Section 15.D.12 is amended by adding Site Specific Policy Area as follows:
“15.D.12.
1593 & 1603 Highland Road West
Notwithstanding the Arterial Corridor designation and policies and the Commercial land use designation and policies, on the lands municipally known as 1593 and 1603 Highland Road West, a maximum of 403 dwelling units located above the ground floor within a building that contain a permitted commercial use shall be permitted to a maximum building height of 55 metres.
b) Amend Map No.5 – Specific Policy Area by:
i. Adding Specific Policy Area Schedule ‘A’.to the subject lands as shown on the attached
LEGEND
CLIENT
LJM DEVELOPMENTS
PROJECT NAME
1593/1605 HIGHLAND RD W
CITY OF KITCHENER
COMMERCIAL - XX
ATTACHMENT 2
PROPOSED BY – LAW
_________ 2022
BY-LAW NUMBER ___
OF THE
CORPORATION OF THE CITY OF KITCHENER
(Being a by-law to amend By-law 2019-051, as amended, known as the Zoning By-law for the City of Kitchener – LJM Developments (Kitchener) Inc.
– 1593 & 1603 Highland Road West)
WHEREAS it is deemed expedient to amend By-law 2019-051 for the lands specified above;
NOW THEREFORE the Council of the Corporation of the City of Kitchener enacts as follows:
Zoning Grid Schedule Numbers 7 and 10 of Appendix “A” to By-law Number 2019-051 are hereby amended by changing the zoning applicable of the parcel of land specified and illustrated as Area 1 on Map No. 1, in the City of Kitchener, attached hereto, from Arterial Commercial (COM-3) to Arterial Commercial (COM-3) with Site Specific Provision (352).
Zoning Grid Schedule Numbers 7 and 10 of Appendix “A” to By-law Number 2019-051 are hereby further amended by incorporating additional zone boundaries as shown on Map No. 1 attached hereto.
Section 19 of By-law 2019-051 is hereby amended by adding Site Specific Provision (352) thereto as follows:
“(352) Within the lands zoned COM-3, as shown as affected by this provision on Schedule Numbers 7 & 10 of Appendix “A”, the following shall apply:
a) A Mixed Use Building with a maximum number of 403 Dwelling Units may be permitted and no Dwelling Units shall be permitted on the ground floor.
b) In addition to those uses listed in Table 9-1, the following uses shall also be permitted:
Beverage Making Establishment,
Medical Lab,
Private Club, and
Studio.
c) Notwithstanding those regulations in Table 9-2, the following shall apply:
i) The minimum side yard shall be 1.0 metres,
ii) The minimum rear yard shall be 5.0 metres,
iii) The maximum lot coverage shall be 75%, and
iv) The maximum building height shall be 55 metres.
d) Notwithstanding Section 5.3.4 of this By-law, parking spaces and drive aisles may be located on the ground floor of a building.”