Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 7, 2022

CASE NO(S).: OLT-21-001187

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Sunvest Homes Corporation

Appellant: Rainer Mueller

Subject: Consent

Property Address/Description: 364 Woolwich Street

Municipality: City of Waterloo

Municipal File No.: B-02/21 and B-03/21

OLT Case No.: OLT-21-001187

OLT File No.: OLT-21-001187

OLT Case Name: Mueller v. Waterloo (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Sunvest Homes Corporation

Appellant: Rainer Mueller

Subject: Consent

Property Address/Description: 364 Woolwich Street

Municipality: City of Waterloo

Municipal File No.: B-02/21 and B-03/21

OLT Case No.: OLT-21-001187

OLT File No.: OLT-21-001188

Heard: February 7, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Sunvest Homes Corporation

Wayne Farhood

Rainer Mueller

Self-represented

City of Waterloo

Susan Smith

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

OVERVIEW

1This is an appeal brought by Ranier Mueller regarding the approval by the City of Waterloo (“City”) Committee of Adjustment (“COA”) of an application for a Consent for a proposed severance of the property located at 364 Woolwich Street (“subject property”) in the City of Waterloo.

2The Applicant proposed the subdivision of the subject property into three (3) lots; one (1) retained and two (2) severed lots.

3The consents were advanced in order to permit the redevelopment of the subject property for three (3) single detached dwellings in accordance with the approved Zoning By-law and Official Plan.

4Retained Lot ‘A’ proposed a lot area of 854 square metres (“sq m”) with 20 metres (“m”) of frontage onto Woolwich Street and 42.7 m of frontage onto Lexington Crescent.

5Lot B (Severance 1) proposed a lot area of 674.6 sq m and 15.8 m of frontage onto Woolwich Street.

6Lot C (Severance 2) proposed a lot area of 682.7 sq m and 15.8 m of frontage onto Woolwich Street.

7On June 15, 2021, the COA granted the Consent to the City’s file numbers B-02/21 and B-03/21 subject to the following conditions:

1. That all legal costs and disbursements incurred by the City of Waterloo in respect of this Committee of Adjustment application be borne by the applicant.

2. That cash-in-lieu of parkland be required for the severed lands in accordance with the Planning Act, R.S.O. 1990, as amended.

3. That the certificate be stamped and signed by the City of Waterloo within one year of the date of the decision.

4. That Section 50(3) continues to apply to any future consent applications.

5. That prior to final approval, the owner/applicant submit the Regional consent review fee of $350.00 per new lot created.

6. The owner/applicant is required to enter into an agreement with the City of Waterloo for all units on the proposed retained and severed lots to include the following warning clauses in all agreements of Offers of Purchase and Sale, lease/rental agreements:

a. The dwelling unit(s) must be installed with air-ducted heating and ventilation system, suitably sized and designed with provision of adding central air-conditioning.

b. The following noise warning clause will be included in all Offers of Purchase and Sale, lease/rental agreements for the retained and severed lands:

i. Purchasers/tenants are advised that sound levels due to increasing road traffic on Woolwich Street may occasionally interfere with some activities of the dwelling occupants as the sound levels exceed the sound level limits of the Municipality and the Ministry of the Environment, Conservation and Parks.

ii. This dwelling unit has been designed with the provision for adding central air conditioning and has been fitted with a forced air heating system and the ducting, etc., was sized to accommodate central air conditioning at the occupant's discretion. Installation of central air conditioning by the occupant will allow windows and exterior doors to remain closed, thereby ensuring that the indoor sound levels are within the sound level limits of the Municipality and the Ministry of the Environment, Conservation and Parks.

SUBJECT PROPERTY AND SURROUNDING CONTEXT

8The Tribunal heard the subject property is municipally known as 364 Woolwich Street and legally known as Lot 17, Plan 825, City of Waterloo. The subject property has an area of approximately 2,231 sq m, or 0.2231 hectares and is located at the intersection of Woolwich Street and Lexington Crescent in the City of Waterloo, located along the westerly limits of the ‘Lexington Heights’ subdivision.

9The subject property is located within the area colloquially known as ‘Lexington Heights’ in the City of Waterloo within the Lexington District as shown on Schedule C of the Official Plan.

10The southern side of Woolwich Street has been subject to considerable development over the past decade at significantly higher densities.

11The Tribunal was informed that in contrast to homes on the north side of Woolwich Street, lots on the southern side of Woolwich Street between Steeplechase Way and Wismer Street are considerably smaller in size with less frontage.

12On average, homes fronting onto the south side of Woolwich Street have a frontage of approximately 12 m and a lot area between 350-400 sq m.

ISSUES

13In making a decision on a Consent appeal, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act (“Act”). The decision must be consistent with the PPS and it must conform with the Growth Plan under s. 3(5) of the Act. The proposed Consent must conform with the County’s Official Plan and regard must be had for the criteria set out in s. 51(24) of the Act. Further, the associated conditions must be reasonable under s. 51(25) of the Act.

EVIDENCE AND SUBMISSIONS

Appellant’s Evidence and Submissions

14The Appellant proffered no professional evidence or testimony.

15The Appellant’s submissions marked as Exhibit 1, provided the Tribunal with statistics and area photographs of the existing neighbourhood.

16The Tribunal heard viva voce testimony from the Appellant of three points of contention:

One: Failure of Process

17The Tribunal heard that area residents:

only became aware of the proposal to create 3 lots in early 2021. Except it was much more than a proposal at that point. This development was a on a very clear pre-approval runway (also called the Holding Provision) that pretended to involve the local residents.

The maneuvering by way of using a literally last minute Holding Provision in this situation without public consultation is procedural manipulation, a travesty of community planning, and a clear and direct failure of the process.

Two: Failure of the Block Plan

18The Tribunal heard:

the Block Plan submitted by the Applicant was prepared on November 5, 2020 but was only made available to the public on February 11, 2021 giving residents 10 days to review and comment.

19The Appellant opined:

the proposed application does not meet the comprehensive zoning bylaw, but is requesting that the City overlook this requirement and apply less stringent criteria that was included in Site Specific Zoning Exception -- the Exception that was included without comments or input from those residents directly impacted by the provision.

20The Appellant further opined the Block Plan fails to:

adequately satisfy the City’s own criteria that the application must be compatible with nearby residential properties, not just the resident’s concerns, but those clearly established by the municipality.

Three: Precedent and Common Sense

21The Tribunal heard the application is not consistent with the precedent of subdividing single larger lots in this part of Waterloo. This lot in particular is on the small side compared to the surrounding properties.

22The Appellant stated:

as residents of this established neighbourhood, we have much vested, and we have been actively engaged in the development of the neighbourhood and do not treat the planning process lightly.

23The Appellant further stated:

the proposal is an incomprehensible, unnatural, ill fitting, over reach of “too much on too little”. It doesn’t make any sense, nor is there any precedent for it. It has failed on process. It has failed on its planning merits and is has failed on the test of precedence and common sense.

Applicant’s and City’s Evidence and Submissions

24A Joint Document Book marked as Exhibit 2 was submitted on behalf of Sunvest Homes Corporation and The Corporation of the City of Waterloo.

25Mr. David Galbraith is a registered land use planner of the firm IBI Group and Mr. John Vos is a registered land use planner with the City. Both were qualified without objection to provide opinion evidence in land use planning in support of the application. Each witness was duly sworn in and each adopted their respective written Witness Statement as evidence to complement their oral testimony.

26Mr. Galbraith and Mr. Vos provided the following evidence to support their opinions.

Planning Act

27Section 1.1 of the Planning Act provides that the purposes of this Act are:

(a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided under this Act;

(b) to provide for a land use planning system led by provincial policy;

(c) to integrate matters of provincial interest in provincial and municipal planning decisions;

(d) to provide for planning processes that are fair by making them open, accessible, timely and efficient;

(e) to encourage co-operation and co-ordination among various interests;

(f) to recognize the decision-making authority and accountability of municipal councils in planning.

Matters of Provincial Interest

28These matters of provincial interest are as follows:

(a) the protection of ecological systems, including natural areas, features and functions;

(b) the protection of the agricultural resources of the Province;

(c) the conservation and management of natural resources and the mineral resource base;

(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;

(e) the supply, efficient use and conservation of energy and water;

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

(g) the minimization of waste;

(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;

(j) the adequate provision of a full range of housing, including affordable housing;

(k) the adequate provision of employment opportunities;

(l) the protection of the financial and economic well-being of the Province and its municipalities;

(m) the co-ordination of planning activities of public bodies;

(n) the resolution of planning conflicts involving public and private interests;

(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;

(s) the mitigation of greenhouse gas emissions and adaptation to a changing climate.

29Mr. Galbraith opined that matters b), c), d), e), g), i), k), l), m), o), q), and s) are not relevant to the matter before the Tribunal.

30In regard to matter a), Mr. Galbraith opined favour has been given to ecological features and functions specifically relating to the study of the existing mature American Elm Tree. That the conditions imposed by the Committee of Adjustment are appropriate to ensure the protection of the tree.

31In regard to matter f), Mr. Galbraith opined the proposed development will be appropriately serviced by existing municipal water and sanitary infrastructure, in addition to the communications and utilities which are also available to the site.

32In regard to matter h) Mr. Galbraith opined the development will support the orderly development of the community as it represents the provision of additional housing options within the built-up area and will provide for a transition in density from the more dense areas to the south to the less dense residential areas to the north.

33The Mr. Galbraith further opined that the lot sizes proposed (15-20 m) are sympathetic to the areas to the north, provide for an appropriate transition in density, are permitted by the approved Zoning By-law and by the site specific zoning regulations applicable to the subject property.

34In regard to matter j) Mr. Galbraith proffered that the proposed lots will support the development of three large single detached dwellings, which support the provision of housing options in the community in keeping with the City’s Official Plan and Zoning By-law framework applicable to the subject property.

35In regard to matter p) the proposed development adheres to the overarching planning framework applicable to the subject property and conforms to the site specific standards applicable to the property. Furthermore, he opined that the Zoning By-law and City Council endorsed Block Plan distinctly contemplates the lot fabric proposed.

36Mr. Galbraith opined that the lots will facilitate the development of three large single detached dwellings of a scale and size of those fully compatible with the adjacent neighbourhood.

37In regard to matter r) the size of the lots and applicable zoning regulations will facilitate the introduction of three dwellings in keeping with the character of the neighbourhood. Furthermore, he opined that these lots will support the development of large homes and ample yards / greenspace which are indicative of the area.

38The Tribunal heard the requirement of pronounced front and rear yards will ensure the setbacks of new dwellings are sympathetic/aligned with adjacent properties and will provide a minimum setback of 13.5 m from adjoining property lines.

39Further, the COA imposed a condition for a 5 m landscape buffer at the rear of the properties to support the provision of privacy between new and existing dwellings and have an attractive interface between properties.

40Mr. Galbraith concluded that the proposed development has regard for the matters of provincial interest as set out in the Act.

41Mr. Vos opined:

• the proposed development has regard to the matters of provincial interest

• the application is not premature; and

• the use of the property for its proposed purposes was contemplated by the City through its approval of the site-specific Zoning (C-214) which was applied to the site through the City’s Comprehensive Review of its Zoning By-law.

Subdivision of Land

42Part IV of the Act establishes the legislative process and requirements for the subdivision of land in the Province of Ontario.

43Section 53 of the Act sets out direction with regards to the severance / consent process.

44Section 53(1) of the Act provides that:

An owner or chargee of land, or such owner’s or chargee’s agent duly authorized in writing, may apply for a consent as defined in subsection 50 (1) and the council or the Minister, as the case may be, may, subject to this section, give a consent if satisfied that a plan of subdivision of the land is not necessary for the proper and orderly development of the municipality.

45Section 53(12) of the Act provides that:

in determining whether a provisional consent is to be given shall have regard to the matters under subsection 51 (24) and has the same powers as the approval authority has under subsection 51 (25) with respect to the approval of a plan of subdivision and subsections 51 (26) and (27) and section 51.1 apply with necessary modifications to the granting of a provisional consent.

46Section 51(24) of the Act establishes criteria for approval authorities to consider in exercising their decision-making authority on subdivision / severance applications. The criteria are as follows:

(24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control; i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).

47Regarding subsection a) Mr. Galbraith opined the proposed development has regard to the matters of provincial interest.

48Regarding subsection b) Mr. Galbraith opined the application is not premature.

49Mr. Galbraith submitted the use of the property for its proposed purposes was contemplated by the City through its approval of the site-specific Zoning (C-214) which was applied to the site through the City’s Comprehensive Review of its Zoning By-law.

50Mr. Galbraith further stated the subdivision of the property into three lots has been appropriately studied and appropriate conditions were applied to allow for its orderly development. In addition, he opined that the use of the property is not premature as it is supported by recently installed municipal services, which were installed by the City to facilitate development in this area.

51Regarding subsection c) the plan conforms to the City of Waterloo’s Official Plan which contemplates the use of the site for low density residential purposes, such as proposed.

52Regarding subsection d) the subject property is suitable to accommodate the proposed development, as they have been planned to accommodate such developments in the City’s Official Plan and Zoning By-law and as there are existing municipal services appropriate to facilitate the proposed dwellings.

53Regarding subsection f) Mr. Galbraith opined that the shape of the proposed lot boundaries are in keeping with the requirements of the Zoning By-law and are regular in shape and size. The proposed lot fabric is suitable to accommodate large single detached dwellings.

54Regarding subsection h) Mr. Galbraith opined that no impacts on designated environmental features or floodplains are contemplated and that the hydrogeological conditions of the area have been appropriately studied and the required finished floor elevations for the new dwellings with standard basements will ensure the basements are at least 0.5 metres above the water table and will not impact the groundwater quantity. The subject property is not located within the regulation limits of the Grand River Conservation Authority nor is it within a natural heritage designation of the Region of Waterloo Official Plan nor City of Waterloo Official Plan.

55Regarding subsection i) Mr. Galbraith informed the Tribunal that the City of Waterloo recently installed services along Woolwich Street to facilitate residential and other planned developments in the area. As part of this infrastructure work, three lateral connections were installed to the site to facilitate their future servicing.

56Regarding subsection j), no concerns or objections were raised by local school boards.

57Subsection k), l) and m) are not relevant to the matter before the Tribunal.

58Mr. Galbraith concluded in his opinion that the proposed severance has regard to the criteria set out in Section 51(24) of the Planning Act.

PROVINCIAL POLICY STATEMENT 2020

59The Tribunal heard that Approval authorities, including the City of Waterloo Committee of Adjustment and the Tribunal are to ensure that their decisions “are consistent with” the Provincial Policy Statement 2020 (“PPS 2020”).

60Policy 1.1.3.1 of the PPS 2020 provides that “settlement areas shall be the focus for growth and development”. The subject property is located within a settlement area and in the built-up boundary of a community where the majority of new growth is to be directed.

61Policy 1.1.3.4 provides that:

appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.

62Mr. Galbraith opined that the Region and City of Waterloo have identified the site within the Built Up Area and directed in their respective Official Plans that such areas are to be the focus for growth and development.

63Further, Mr. Galbraith proffered the City of Waterloo has further designated and zoned the site for Low Density residential purposes, such as the single detached lots proposed.

64Policy 1.1.3.5 of the PPS 2020 provides that:

Planning authorities shall establish and implement minimum targets for intensification and redevelopment within built-up areas, based on local conditions. However, where provincial targets are established through provincial plans, the provincial target shall represent the minimum target for affected areas.

65The Region of Waterloo and the City of Waterloo have established intensification policies and targets in their respective Official Plans towards the Regional minimum annual residential intensification target of 45 percent. Furthermore, he opined the proposed development will contribute to the achievement of this target.

66Section 1.4 of the PPS 2020 establishes provincial land use policy direction with regards to housing, which includes:

• Maintaining at all time the ability to accommodate residential growth for a minimum of 15 years (Policy 1.4.1 a);

• Providing for an appropriate mix of housing options and densities to meet projected market based and affordable housing needs (Policy 1.4.3);

• Permitting and facilitating all housing options required to meet the social, health, economic and well being of the community (Policy 1.4.3.b.1); and;

• Permitting and facilitating all types of residential intensification including additional units and redevelopment in accordance with Policy 1.1.3.3 (Policy 1.4.3.b.2).

67Mr. Galbraith opined the PPS 2020 prioritizes infill development as opposed to greenfield development and the compatible infilling of existing areas and supports ‘all types of residential’ intensification where appropriate.

68The proposed severance is consistent with this direction as it provides for three lots which will support compatible residential dwellings and provides for an appropriate transition in density from higher density single detached lots to the south, to the larger lots located along Lexington Crescent.

69Mr. Galbraith concluded that the proposed development is consistent with the policy direction of the PPS 2020 as it provides for the introduction of context sensitive intensification in keeping with the character of the area.

70Mr. Vos opined the consent applications are consistent with the PPS 2020 by accommodating appropriate residential uses in the built-up area, in an area intended for residential development, while utilizing existing infrastructure.

GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE

71The Growth Plan for the Greater Golder Horseshoe 2019 (“Growth Plan 2019”) builds off of the province-wide policy direction set out in the PPS 2020 and establishes an area-specific growth and development plan for the Greater Golden Horseshoe area of Ontario.

72Section 1.2.1 of the Growth Plan 2019 sets out guiding principles, which include:

• Supporting the achievement of complete communities that are designed to support healthy and active living and meet people's needs for daily living throughout an entire lifetime.

• Prioritizing intensification and higher densities to make efficient use of land and infrastructure and support transit viability.

• Improving the integration of land use planning with planning and investment in infrastructure and public service facilities.

• Providing for different approaches to manage growth that recognize the diversity of communities in the Greater Golden Horseshoe.

73Mr. Galbraith opined the proposed development provides context sensitive intensification and provides for the introduction of compatible low density housing options between higher density areas to the south and larger lots to the north.

74Policy 2.2.1 (c) of the Growth Plan 2019 directs that the majority of community growth should be directed to existing settlement areas such that:

c) within settlement areas, growth will be focused in:

i. delineated built-up areas;

ii. strategic growth areas;

iii. locations with existing or planned transit, with a priority on higher order transit where it exists or is planned; and

iv. areas with existing or planned public service facilities;

75Mr. Galbraith submitted the subject property is located within the delineated Built Up area as set out in the Growth Plan 2019, Regional Official Plan and City of Waterloo Official Plan where the majority of community growth in the City of Waterloo is to be directed.

76Policy 2.2.6.1 of the Growth Plan 2019 is as follows:

1. Upper- and single-tier municipalities, in consultation with lower-tier municipalities, the Province, and other appropriate stakeholders, will:

a) support housing choice through the achievement of the minimum intensification and density targets in this Plan, as well as the other policies of this Plan by:

i) identifying a diverse range and mix of housing options and densities, including additional residential units and affordable housing to meet projected needs of current and future residents; and

ii) establishing targets for affordable ownership housing and rental housing;

b) identify mechanisms, including the use of land use planning and financial tools, to support the implementation of policy 2.2.6.1 a);

c) align land use planning with applicable housing and homelessness plans required under the Housing Services Act, 2011;

d) address housing needs in accordance with provincial policy statements such as the Policy Statement: “Service Manager Housing and Homelessness Plans”; and

e) Implement policy 2.2.6.1 a), b), c) and d) through official plan policies and designations and zoning by-laws.

77Mr. Galbraith opined the City of Waterloo in fulfilling its land use planning responsibilities directs the majority of new housing development to be located within its built-up area and has established Zoning to implement the direction of its Official Plan.

78Further, the proposed development supports the provincial direction to provide a range and mix of housing types to meet the housing need of the community. The proposed lots are of a size suitable for the development of three large homes with generous front, rear, and side lot setbacks.

79In order to ensure infill development is compatible with existing areas, the City has enacted policies in its Official Plan to identify the types of housing to be permitted within its Low Density Residential designation.

80The Tribunal heard that the Residential Three (R3) zoning and site-specific regulation C214 establishes development regulations to ensure that new development is developed at a scale and intensity that will be compatible with existing uses in the surrounding area.

81Mr. Galbraith concluded that the proposed development is in conformity with the Growth Plan 2019.

82Mr. Vos opined the consent applications conform to the Growth Plan 2019 by facilitating redevelopment and intensification of the subject property which now has access to full municipal services and by directing growth to the built-up area.

REGION OF WATERLOO OFFICIAL PLAN, 2009 (“ROP”)

83The ROP identifies the subject property as being located within the Urban Boundary and Built-Up Area of the City of Waterloo.

84Policy 2.B.2 of the ROP directs the majority of growth within the Region to occur in the Urban Area, providing:

The Urban Area is designated as shown on Map 3a. This designation contains the primary urban areas of the Cities of Cambridge, Kitchener and Waterloo and also extends into portions of the Township of Woolwich. The lands included within this designation are intended to accommodate the majority of the Region’s growth within the planning horizon of this Plan, and will be planned and developed in accordance with the policies in Sections 2.C, 2.D, and 2.G and other applicable policies in this Plan.

85Mr. Galbraith opined this policy direction maintains the direction of the PPS 2020 and Growth Plan 2019 to encourage the majority of new growth and development to occur within the built boundary.

86Policy 2.C.2 of the ROP directs that forty-five (45) per cent of new residential development should be directed to the Built-Up Area by the area municipalities in order to support the efficient use of land, and physical and community infrastructure / services.

87Mr. Galbraith offered the proposed development conforms with this direction of the ROP as the proposed lots have access to recently installed municipal services, and as the scale and form of the development will not represents a significant change from the existing low rise residential character of the neighbourhood.

88Section 2.D.1 of the ROP directs that:

In preparing or reviewing planning studies, or in reviewing development applications or site plans, the Region and/or Area Municipalities will ensure that development occurring within the Urban Area is planned and developed in a manner that:

(a) supports the Planned Community Structure described in this Plan;

(b) is serviced by a municipal drinking water supply system and a municipal wastewater system;

(c) contributes to the creation of complete communities with development patterns, densities and an appropriate mix of land uses that supports walking, cycling and the use of transit;

(d) protects the natural environment, and surface water and groundwater resources;

(e) conserves cultural heritage resources and supports the adaptive reuse of historic buildings;

(f) respects the scale, physical character and context of established neighbourhoods in areas where reurbanization is planned to occur;

(g) facilitates residents’ access to locally grown and other healthy foods in neighbourhoods; and

(h) promotes building designs and orientations that incorporate energy conservation features and the use of alternative and/or renewable energy systems.

89Mr. Galbraith shared opinion that the proposed development conforms to this policy direction as it:

• Supports the planned structure of the ROP which directs the majority of new growth to the built up area;

• Is located along a multi-use trail which supports active forms of transportation and recreation;

• All lots will be serviced by existing infrastructure which was recently installed along Woolwich Street;

• Respects the scale and character of the area by providing a compatible form of low density housing.

• The form of housing (single detached) is consistent with the housing existing to the north and south of the site and will be setback in alignment with adjacent homes.

90Mr. Galbraith concluded that the proposed development conforms to the ROP.

91Mr. Vos opined the consent applications conform to the ROP which provides the following direction for how growth should occur:

a. Policy 2.C.2 directs that 45% of all new residential development will be constructed within the built-up area.

b. Policy 2.D.1. directs that development occurring within an urban area:

• Is serviced by a municipal drinking-water supply system and a municipal wastewater system;

• Contributes to the creation of complete communities with development patterns, densities and an approximate mix of land uses that supports walking, cycling, and the use of transit;

• Protects the natural environment, and surface water and groundwater resources;

• Respects the scale, physical character and context of established neighbourhoods in areas where re urbanization is planned to occur.

92Mr. Vos further opined, the applications conform to the ROP. The new lots will result in new residential development that:

a. Is within the built-up area;

b. Has access to full municipal services including municipal water and sanitary services;

c. Is adjacent to a multi-use trail and within walking distance of an express bus transit route;

d. The property is outside of a natural area and future development on the property will be above the groundwater elevation, with measures to protect the mature elm tree; and

e. Future development on the properties will be consistent with the planned transition of lot patterns and built-form in this area of the City (with lots and house sizes increasing as you move towards the Grand River), having appropriate regard to the overall scale and character in the surrounding neighbourhood.

CITY OF WATERLOO OFFICIAL PLAN

93Section 1.2 of the Official Plan provides that:

the Official Plan has status in law pursuant to the provisions of the Planning Act and has the effect of requiring that the municipality conform to the Official Plan when undertaking public works or passing by-laws.

94Decisions of municipal Council or its delegates are to conform to the Official Plan.

City Form

95Section 3.3 of the Official Plan directs that while a portion of new growth will occur in the Designated Greenfield Area, it is:

anticipated that a greater proportion of overall growth will be accommodated through intensification. Intensification will be concentrated within the Built-up Area which, as illustrated on Schedule ‘B3’ – Designated Greenfield Areas, includes all lands within the built boundary of the City of Waterloo as of June 16, 2006.

96The Official Plan directs that the majority and highest degree of intensification will be directed towards Major Transit Station Areas and identified Nodes and Corridors, but also contemplates context appropriate infilling within the broader Built-Up Area.

Low Rise Residential Designation

97The subject property is designated Low Density Residential on Schedule A of the Official Plan.

98Section 10.1.3 of the Official Plan establishes corresponding policy direction to guide grown and development within the designation.

99The vision for the Low Density Designation as set out in the Official Plan is as follows:

The Low Density Residential designation is intended to accommodate primarily low-rise residential land uses at lower densities than the rest of the City. Intensification in areas designated Low Density Residential shall be context sensitive to the surrounding neighbourhood and maintain a low-rise built form.

100Mr. Galbraith opined the proposed development is consistent with this vision, as it contemplates the subdivision of one estate sized property into three large, single detached lots.

101Further, the approved lotting is context sensitive as it provides a transition in density from more dense forms of housing to the south, to larger lots to the north.

102Policy 10.1.3.1 of the Official Plan sets out the permitted uses within this designation, which includes single-detached dwellings; semi-detached dwellings; duplex dwellings; triplex dwellings; townhouses; and low rise apartment uses. A number of compatible ancillary and complementary uses may also be permitted.

103Mr. Galbraith opined that, while the Official Plan establishes this broad range of uses / housing types, it defers to the Zoning By-law to determine the specific uses permitted in each area.

104Policy 10.1.3.5 directs that where new developments are contemplated, they:

shall respect and reinforce the general physical patterns in the neighbourhood, including those established by:

(a) street and block configurations;

(b) lot sizes and configurations;

(c) building height, bulk, and spacing on nearby lands with similar characteristics; and

(d) building setbacks.

105Mr. Galbraith proffered the opinion that the proposed lots – while smaller than those along Lexington Crescent – are considerably larger than those to the south, with the interior lots being approximately 4 m wider than the average lot across the street and the corner lot being approximately 8 m wider.

106The Tribunal heard the opinion that the proposed lots conform to the direction of Policy 10.1.3.5 of the Official Plan as the lot sizes provide a suitable transition in density from higher density lots south of the subject property to lower density lots to the north; as the heights of any new dwellings will be limited to 10 m which is equal to what is permitted on lands both north and south of the lots; and, as the setback requirements of the Zoning By-law will ensure that adequate separation is provided both between new and existing dwellings.

107Mr. Vos opined the consent applications conform to the Official Plan by creating lots which have access to municipal services and are appropriately sized for single detached dwellings.

CITY OF WATERLOO ZONING BY-LAW

108The subject property is zoned Residential Three (R3) by the City of Waterloo Zoning By-Law 2018-050 and is subject to site specific regulation C214.

109The R3 zone limits the use of the subject property to single detached buildings and a range of complementary and ancillary uses, including:

• Class A Group Homes

• Coach House

• Home Occupation

• Second Residential Unit

110The subject property is also subject to site specific regulation / exception C214 which sets out reduced Lot Area and Lot Frontage requirements:

i) Lot area (minimum) 660 square metres for an interior lot and 840 square metres for a corner lot

ii.) Lot frontage (minimum) 15.8 metres for an interior lot 20.0 metres for a corner lot 227.

111The Tribunal heard, the severance application fully conforms to the applicable Zoning regulations and no relief from these standards (by way of a variance or otherwise) is required.

112Mr. Vos proffered the opinion the severance sketch submitted with the consent applications show the creation of three lots (A, B, and C) which conform to the corner and interior lot area and lot frontage requirements of the Zoning By-law, specifically C214. Lots B and C will have a frontage of 15.8 m and lot area of 660 sq m, and Lot A will retain a frontage of 20.0 m and a lot area of 840 sq m.

113Mr. Vos concluded the applications conform to the regulations of the Zoning By-law.

BLOCK PLAN

114The Tribunal heard that The IBI Group prepared a draft Block Plan which was submitted to the City of Waterloo.

115This Block Plan provided a detailed analysis of the subject property, surrounding area, land use planning framework applicable to the area, and how the area could develop over time in response to recent servicing/infrastructure improvements while at the same time being sympathetic to existing land use patterns of the established neighbourhood.

116The Block Plan included a plan entitled ‘Supplementary Figure Showing Existing and Potential Lot Severances’ which showed where recent severance applications had been approved or where there was potential for future lot subdivision.

117The plan found that all properties fronting onto Woolwich Street between Cedarcliffe Drive and the westerly intersection of Lexington Crescent and Woolwich Street had the potential to be subdivided.

118Of these properties, only two properties were contemplated to be subdivided into three lots, being the subject property (364 Woolwich Street) and 410 Woolwich Street.

119The Block Plan contemplated the subdivision of the subject property into three parcels of equal scale and size as those proposed through the severance applications.

120The lot sizes were slightly more narrow than the base requirements of the R3 zone with the corner lot having 20 m of frontage onto Woolwich Street (whereas the base R3 zone requires 22.5 m of frontage for corner lots) and the two interior lots having 15.8 m of frontage (whereas the base R3 zone would require 19.5 m of frontage per lot).

121Notwithstanding this, the Block Plan concluded that the lotting was appropriate and would not detract from the planned function of the north side of Woolwich Street for various reasons including that it would provide for a suitable transition in density, provide lots considerably larger than those on the south side of Woolwich Street, more pronounced separation between future dwellings and requiring deep rear yards to provide landscape buffers to the property to the north.

122The Tribunal further heard, that while the Block Plan generally contemplated future severances in conformity with R3 standards, there were two other severances that would require site-specific relief from the Zoning By-law to permit reductions from lot frontage requirements. This includes 358 Woolwich Street (where 16 m and 20 m lots were contemplated by the plan) and 418 Woolwich Street (where two 17.5 m lots fronting onto Woolwich Street were contemplated).

123Notwithstanding the need for site-specific relief from the Zoning By-law, the Block Plan found that these lots would be in keeping with the planned function of the area and sympathetic to the low density character of lands to the north along Lexington Crescent. Moreover, the resulting lots would support a transition in density from more dense areas south of Woolwich Street to the established and less dense lots of Lexington Crescent.

124On May 31, 2021, the City of Waterloo Council accepted and endorsed the Block Plan.

125Mr. Galbraith concluded that the endorsement of the Block Plan by City Council set out the will of Council for the ultimate development of the property, and the decision by the Committee of Adjustment to approve the consent applications conformed to the Block Plan set out for the area.

ANALYSIS AND FINDINGS

126Upon the findings made and based on the whole of the evidence, inclusive of the uncontroverted oral testimony of the two expert witnesses, Mr. Galbraith and Mr. Vos and the oral lay evidence of Mr. Mueller, the Tribunal finds that the application for Consent is consistent with the PPS, conforms with the Growth Plan, the Region’s OP as well as the City’s OP.

127The Tribunal has had regard to the matters of provincial interest set out in s. 2 of the Act and it finds that the proposed Consent has regard to the criteria in s. 51(24) of the Act. It also finds that the proposed conditions are reasonable in accordance with s. 51(25) of the Act.

128The Tribunal finds that the proposed Consent satisfies the applicable statutory tests and represents good planning in the public interest.

ORDER

129The Tribunal Orders that the appeal is dismissed and the provisional consent is to be given subject to the conditions set out in Attachment “1” to this Order.

“Carmine Tucci”

CARMINE TUCCI

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”

CONDITIONS

1. That all legal costs and disbursements incurred by the City of Waterloo in respect of this Committee of Adjustment application be borne by the applicant.
2. That cash-in-lieu of parkland be required for the severed lands in accordance with the Planning Act, R.S.O. 1990, as amended.
3. That the certificate be stamped and signed by the City of Waterloo within one year of the date of the decision.
4. That Section 50(3) continues to apply to any future consent applications.
5. That the property owner enter into a development agreement with the City of Waterloo, satisfactory to the Director of Planning and the City Solicitor, in order to address various matters, including: a. Driveway location and configuration; b. Tree protection measures to mitigate impacts on the nearby elm tree; c. Landscape buffer along the common lot line of 364 Woolwich Street and 442 Lexington Crescent; and d. Finished floor elevation for the new dwellings
6. That a Reference Plan be prepared for the consent, to the satisfaction of the Director of Planning and the City’s Solicitor.
7. That prior to final approval, the owner/applicant submit the Regional consent review fee of $350.00 per new lot created.
8. The owner/applicant is required to enter into an agreement with the City of Waterloo for all units on the proposed retained and severed lots to include the following warning clauses in all agreements of Offers of Purchase and Sale, lease/rental agreements: a. The dwelling unit(s) must be installed with air-ducted heating and ventilation system, suitably sized and designed with provision of adding central air-conditioning. b. The following noise warning clause will be included in all Offers of Purchase and Sale, lease/rental agreements for the retained and severed lands: i. "Purchasers/tenants are advised that sound levels due to increasing road traffic on Woolwich Street may occasionally interfere with some activities of the dwelling occupants as the sound levels exceed the sound level limits of the Municipality and the Ministry of the Environment, Conservation and Parks." ii. "This dwelling unit has been designed with the provision for adding central air conditioning and has been fitted with a forced air heating system and the ducting, etc., was sized to accommodate central air conditioning at the occupant's discretion. Installation of central air conditioning by the occupant will allow windows and exterior doors to remain closed, thereby ensuring that the indoor sound levels are within the sound level limits of the Municipality and the Ministry of the Environment, Conservation and Parks."