Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 10, 2022

CASE NO(S).: OLT-21-001260

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

Applicants and Appellants: Dario Kokorovic and Tanja Cvijetic

Subject: Consent

Property Address/Description: 257 Dumfries Avenue

Municipality: Municipality of Waterloo

Municipal File No.: B2021-038

OLT Lead Case No.: OLT-21-001260

OLT Case No.: OLT-21-001260

OLT Case Name: Cvijetic v. Kitchener (City)

Heard: January 11, 2022 by Video Hearing (“VH”)

APPEARANCES:

Parties	Counsel*/Representative
Dario Kokorovic and Tanja Cvijetic (“Appellants/Applicants”)	Denise Baker*
City of Kitchener (“City”)	Katherine Hughes*
Jennifer Chambers	Self-represented

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

BACKGROUND

1This is a hearing of an appeal of a decision of the Committee of Adjustment (“COA”) to refuse the granting of a severance to divide an existing lot to facilitate the redevelopment of the property into two parcels containing a duplex on each (the “Subject Lands”).

2Both resulting lots would feature a lot width of 9.75 metres (“m”), depth of 40.54 m, and an area of 395 square Metres (“sq m”).

3The proposed Consent and redevelopment would involve the demolition of a single detached dwelling currently existing on the Subject Lands.

4No minor variance is required to facilitate the proposed development. The development of a duplex is permitted pursuant to the applicable Zoning By-law (“ZBL”) and the resulting lots will both exceed the 9.0 m minimum lot frontage and 235 sq m minimum lot area prescribed in the ZBL for duplex dwellings.

5For the reasons that follow, the Tribunal allows the Appeal in part.

Parties’ Participation and STATUS REQUESTS

6At the outset of the hearing, the City confirmed that it would not participate in the proceedings.

7Jennifer Chambers attended the hearing and sought Party status as an area resident. She indicated that, if she is granted status, she would call four witnesses, including three lay-witnesses and an expert in land use planning, Allan Ramsay. She also indicated that she wished to fully participate in the proceedings, including making submissions and conducting cross-examination, which she would not be able to do as a mere participant. She indicated that her role in the proceedings was especially important considering that the City had elected to not participate and the matter would proceed unopposed if not for her involvement.

8In response to her request, counsel for the Applicant expressed concern about the proceedings finishing on time (being a single day hearing) if Ms. Chambers was granted status and called all four of her witnesses.

9The Tribunal considered the submissions of the Parties and conditionally granted Ms. Chambers’ request for Party status for the following reasons:

1. She has a genuine stake in the matter as an area resident;

2. She had retained a professional planner to provide expert evidence, and the Tribunal determined that it would be beneficial to hear his evidence and opinion;

3. The degree of participation proposed by Ms. Chambers would not be permitted if she was granted only participant status; and,

4. Given that the City would not be participating, the hearing would be uncontested without her participation and the Tribunal found that it would be beneficial to hear opposing viewpoints as a means to conduct a fair and balanced hearing.

10As a condition of granting Ms. Chambers’ status, the Tribunal limited her time to present her case to two hours and only permitted her to call her expert, Mr. Ramsay, as a witness. Ms. Chambers agreed that this was a reasonable condition.

11In addition to the granting of Party status to Ms. Chambers, the following people were granted Participant status on consent of the Parties and the Tribunal was in receipt of and considered the contents of their Statements:

• Amanda Farquharson & Kristopher Elson
• Alison Sutton
• Brian & Phyllis Schmalz
• Ian & Joanne Pirie
• Mary & Roy Gascho
• Marian Wood
• Nicola Scarfone
• Ron & Bernice Wilson
• Sean Voisin

12It is noteworthy that the Participants’ Statements were all in opposition to the proposed Consent application, and the issues they raised were also covered by Ms. Chambers’ evidence and submissions and, generally, reflected her position in the matter (the only exceptions being concerns that were not relevant / properly before the Tribunal). As a result, the issues raised by the Participants are addressed below at the same time the Tribunal considered the issues raised by Ms. Chambers.

ISSUES AND EVIDENCE

13Evidence in support of the Application was provided by the Applicants’ expert, Scott Patterson, while evidence against the Application was provided by Ms. Chamber’s expert, Mr. Ramsay. Both were duly qualified on consent as experts in land use planning.

14There was a general consensus between the experts insofar as the Application is consistent with the Provincial Policy Statement 2020 (“PPS”) and conforms to the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”) and the Regional Municipality of Waterloo Official Plan (“Regional OP”), and has regard to matters of provincial interest pursuant to s. 2 of the Planning Act, as the proposed infill represents limited intensification and the efficient use of existing infrastructure within a designated settlement area.

15It was uncontested that the Subject Lands are designated “Low Rise Conservation A” in the Central Frederick Secondary Plan, which permits duplex dwelling uses, and is zoned “Residential Five Zone (R-5)” with Special Use Provision 129U in the City of Kitchener Zoning By-law No. 85-1, which permits the proposed use of the severed and retained lands for a duplex dwelling. In other words, there was no dispute that a duplex unit, as proposed, could be built on a lot or lots in the subject area as-of-right.

16The Tribunal accepts this uncontroverted planning evidence and finds that the Consent application is consistent with the policies of the PPS and conforms to the policies of the Growth Plan. The Tribunal also finds that the Proposed Development has regard for matters of Provincial interest set out in s. 2 of the Planning Act. Furthermore, severance aside, the use of the Subject Lands for duplex dwelling uses, involving the lot dimensions as proposed, is permitted according to both the applicable ZBL and local municipal Plans (“Plans”). The only question remaining is whether or not the City Official Plan (“City’s OP”/“OP”) supports severing the lot into two lots as proposed by the Application.

[Section 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) and CIty’s OP

17In a Consent application, the question of conformity with the OP applies as it relates to the criteria found at subsection (c) of s. 51(24) of the Planning Act:

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

18The Tribunal notes that the other criteria of s. 51(24) of the Planning Act were all duly considered; however, it was found that the other criteria were either not directly on point with the contested issues of the present case, or issues associated with the other criteria always circled back to the same questions of conformity with the OP. As a result, the determination of the present matter ultimately turns on satisfaction of subsection (c) of s. 51(24).

19As mentioned above, the Tribunal found that the proposed Consent is generally consistent with the OP in terms of providing limited residential intensification, redevelopment and infill opportunities in an area planned for such purposes and, thereby, contributes to providing a range of housing options to satisfy a variety of housing needs. In this regard, the proposed Consent supports OP policies 3.C.2.1, 3.C.2.50, 4.1.1 and 4.C.1.6 in particular. In closing submissions, Ms. Chambers confirmed that she accepts this.

20The Tribunal further finds that the City, through the OP and ZBL regulations which apply to the Subject Lands and the surrounding area, has identified and encouraged residential intensification opportunities within this established residential neighbourhood. While Mr. Ramsay obviously does not support the specifics of the proposed development, he did not dispute the general principle that appropriate residential intensification opportunities are encouraged within the subject area. Again, Ms. Chambers confirmed that she accepts this in her closing submissions.

21Despite having agreed that the OP supports the proposed development to a large degree, the Parties remained at odds with respect to whether the proposed severance conforms to two particular policy provisions of the City’s OP, which speak to the concept of ‘fit’ within the subject neighbourhood context.

22It is noteworthy that, during the initial municipal review of the proposed Consent, planning staff for the City was of the opinion that the proposed Consent adequately conforms with the OP, stating summarily that the Subject Lands are suitable for the purposes for which they are to be severed and both resultant lots are suitable in their dimensions and shapes and front onto an established municipal road with adequate services.

23The COA, however, found to the contrary, opining that the proposed lots will not be compatible with nor conform in size and scale with the pre-existing neighbourhood.

24These opposite findings reflect (more or less) the respective differing opinions of the Parties’ experts / positions of the Parties and highlight two key policies of the City’s OP which are in dispute. These provisions constituted the focus of the analysis proffered by the respective Parties’ experts and it is upon these policies that the Tribunal finds this case turns on.

25The first notable provision of the OP to consider is at Policy 3.C.2.52, which is concerned with intensification within Community Areas (such as the Subject Lands):

3.C.2.52. Limited intensification may be permitted within Community Areas in accordance with the applicable land use designation on Map 3 and the Urban Design Policies in Section 11. The proposed development must be sensitive to and compatible with the character, form and planned function of the surrounding context. [emphasis added]

26Under Part F, the OP provides a definition for Compatibility / Compatible:

Compatibility/Compatible - land uses and building forms that are mutually tolerant and capable of existing together in harmony within an area without causing unacceptable adverse effects, adverse environmental impacts or adverse impacts. Compatibility or compatible should not be narrowly interpreted to mean “the same as” or even as “being similar to”. [emphasis added]

27The second key provision of the OP is at section 17.E.20, which is concerned with Consents specifically:

17.E.20.3. When considering an application for consent, the Committee of Adjustment will have regard to the provisions of the Planning Act, to the goals, objectives and policies of this Plan and to the provisions of the Zoning By-law.

17.E.20.5. Applications for consent to create new lots will only be granted where:

a) the lots comply with the policies of this Plan, any Community Plan and/or Secondary Plan, and that the lots are in conformity with the Zoning By-law, or a minor variance has been granted to correct any deficiencies;

b) the lots reflect the general scale and character of the established development pattern of surrounding lands by taking into consideration lot frontages, areas, and configurations; [emphasis added]

28These sections of the OP speak of the concept of ‘fit’ within the subject neighbourhood. In the present case, the key question is whether the proposed development, facilitated by the requested Consent to sever the Subject Lands, adequately ‘fits’ within the surrounding neighbourhood pursuant to the meanings of these sections. Furthermore, if the meanings of these sections require a contextual analysis to assess ‘fit’, then it is also critical to determine the scope / parameters of the relevant neighbourhood (or, more accurately, the “surrounding lands” as termed in the policy) to assess such ‘fit’.

29The meanings of these sections, the scope of the pertinent “surrounding lands”, and the related analysis of adequate ‘fit’ constitute the essence of the disagreement between the experts. The Tribunal is therefore tasked with determining these answers.

30It is noteworthy that the Parties and their respective experts proffered other sections of the City’s OP as part of their analysis and submissions in support of their respective positions; however, the Tribunal once again finds that these discussions ultimately always circled back to a determination of the above described questions of ‘fit’, which are most directly addressed in the context of conformity with OP Policies 3.C.2.52 and 17.E.20. This was also how Ms. Chambers outlined her position in her closing submissions.

31Regarding Policy 3.C.2.52, it is clear to the Tribunal that this policy supports limited intensification within Community Areas, such as what is being proposed by the Applicants. While the section includes a prerequisite to be “sensitive to and compatible with the character, form and planned function of the surrounding context”, the definition of “compatible” is expressly defined as not being “the same as” or “being similar to” the surrounding area. There is no definition for “sensitive to”, but a plain reading of the term does not suggest a notable deviation from the provided definition of “compatible”.

32Given the definition of compatible and plain reading of the rest of the section, the Tribunal finds that the City intended the policy to allow moderate intensification of the Subject Lands, even it if produces lot sizes which are markedly different than surrounding lot sizes, provided that it does not result in unacceptable adverse impacts / effects on the surrounding lands. The Tribunal did not receive any evidence to demonstrate any unacceptable adverse impacts / effects on surrounding lands caused by the proposed Consent, so the Tribunal finds that the proposed Consent is in conformity with this section.

33Regarding OP Policy 17.E.20.3, the plain reading of the policy requires due regard to the goals, objectives and policies of the OP and to the provisions of the applicable ZBL when considering an application for Consent. This also weighs in favour of the Applicants, given the Tribunal’s above findings respecting conformity with the OP and Policy 3.C.2.52 in particular, plus the uncontroverted conclusion that the proposed development is entirely in compliance with the applicable ZBL.

34OP Policy 17.E.20.5 is more nuanced. It requires, as a prerequisite for granting a Consent, that “the lots reflect the general scale and character of the established development pattern of surrounding lands by taking into consideration lot frontages, areas, and configurations”. Unlike Policy 3.C.2.52, the Tribunal is not guided by a definition of terms, and so it must determine what it means to “reflect” in the context of this OP provision.

35Through her submissions and Mr. Ramsay’s testimony, it is clear that Ms. Chambers takes the position that “reflect” in the context of OP Policy 17.E.20.5 is akin to being “similar to” or “consistent with”. Given that Ms. Chambers’ treatment of the term “reflect” is consistent with the plain meaning of the word, the Tribunal accepts it.

36Upon such a basis, Mr. Ramsay addressed this policy by taking the Tribunal through a limited contextual analysis of the relative lot sizes of approximately 86 residential lots within an approximately two-block radius of the Subject Lands. His evidence unequivocally showed that the proposed subdivided lots would be substantially smaller than the other lots in the area he chose as a study area. His conclusion was that it proved that the proposed subdivided lots would not “reflect” the general scale and character of the surrounding neighbourhood because they would be neither similar nor consistent with the surrounding lots that he included in his analysis (in terms of frontage and lot area sizes).

37Mr. Ramsay testified that he selected the given area because it represented, in his opinion, the applicable “neighbourhood area” (his term), which amounts to the “surrounding lands” as referred to in the City’s OP Policy 17.E.20.5. Upon cross-examination, Mr. Ramsay defended his selection by stating that this relatively small area, located within the much larger Central Frederick Neighbourhood (as illustrated at “Figure 8: Central Frederick Secondary Plan”, contained in Exhibit 7), is distinguishable from the rest of the Central Frederick Neighbourhood. He testified that his selection represents a 1950s Subdivision Plan, distinguishable from the rest of the Central Frederick Neighbourhood, as bound by a shopping mall to the north, the Conestoga Parkway to the east, Krug Street to the south, and the rear property lines of lots fronting onto East Ave. to the west.

38Mr. Ramsay showed the Tribunal that the lots within his selected area feature lots that are generally larger than the rest of the Central Frederick Neighbourhood. However, in so doing, Mr. Ramsay also demonstrated that lot sizes in the rest of the Central Frederick Neighbourhood are generally smaller, narrower and, in at least some cases, resemble the sizes of the proposed severed lots. Upon cross-examination, Mr. Ramsay also admitted that if his analysis had included lands comprising of the entire block to the immediate west of the Subject Lands, fronting on East Ave. (Mr. Ramsay only included lots on the east portion of that block), the result would have included lot sizes that are much smaller than what was instead included in his relatively limited selection area.

39As it relates to Mr. Ramsay’s analysis of the surrounding lot sizes, the Tribunal finds the sample-size that he chose is simply too small, selective, and otherwise too limited to be helpful in assessing the “general scale and character of the established development pattern of surrounding lands” referred to in OP Policy 17.E.20.5. Correspondingly, the Tribunal accepts the submission of the Applicants insofar as Mr. Ramsay’s selection has the effect of significantly skewing the results of his analysis to a degree that his conclusions cannot be accepted by the Tribunal.

40Furthermore, the Tribunal finds that a cursory review of “Figure 9: Zoning Map (Extract)” (contained in Exhibit 7) adequately shows that the approximate lot sizes of the rest of the Central Frederick Neighbourhood, even if just limited to the area south of Frederick Street, surrounding the Subject Lands primarily to the west, illustrates on a balance of probabilities that there are numerous lots of the approximate size and dimensions of the proposed severed lots.

41This means that, even if the Tribunal accepts Mr. Ramsay’s approach to assessing the conformity of the proposed Consent in relation to OP Policy 17.E.20.5, the Tribunal finds that the proposed subdivided lots are, more likely than not, similar in size and dimensions compared to at least some of the lots of the surrounding lands. Thus, using Mr. Ramsay’s approach, the Tribunal finds that the proposed Consent does conform with OP Policy 17.E.20.5 because it adequately “reflect[s] the general scale and character of the established development pattern of surrounding lands by taking into consideration lot frontages, areas, and configurations”.

42It is noteworthy that Mr. Patterson took a much different approach to assessing what it means to conform with OP Policy 17.E.20.5. In his opinion, which is reiterated in the submissions of the Applicants, “[reflection of] the general scale and character of the established development pattern of surrounding lands” is straightforwardly determined by examining the sections of the ZBL which address lot dimensions. From his point of view, the question is strictly determined by what is permitted, not what currently exists. For the reasons that follow, the Tribunal does not agree and is persuaded to accept Mr. Ramsay’s approach.

43In closing submissions, counsel for the Applicants submitted that the principle of “deemed conformity” is determinative in properly applying OP Policy 17.E.20.5, pointing to s. 24(4) of the Planning Act:

(4) If a by-law is passed under section 34 by the council of a municipality or a planning board in a planning area in which an official plan is in effect and, within the time limited for appeal no appeal is taken or an appeal is taken and the appeal is withdrawn or dismissed or the by-law is amended by the Tribunal or as directed by the Tribunal, the by-law shall be conclusively deemed to be in conformity with the official plan, except, if the by-law is passed in the circumstances mentioned in subsection (2), the by-law shall be conclusively deemed to be in conformity with the official plan on and after the day the by-law was passed, if the amendment to the official plan comes into effect.

44The Tribunal agrees that s. 24(4) is clear and unambiguous, insofar as it determines that a ZBL is deemed to conform with the OP. However, the Applicants further submitted that, by virtue of the proposed severance clearly conforming with the applicable ZBL, a correct interpretation of s. 24(4) of the Planning Act means that the proposed severance must also be deemed to conform with the City’s OP. In support of this position, the Applicants drew the Tribunal’s attention to Lorentz, Re, 2009 CarswellOnt 986; Ontario (Minister of Natural Resources) v. Alfred and Plantagenet (Township), 2004 CarswellOnt 7393, 2004 CarswellOnt 8019; Aon Inc. v. Peterborough (City), [1999] OJ No. 1225,; IN8 (The Capitol) Developments Inc v Building Kingston’s Future, 2020 ONSC 6151; and Richardson, Re, 2007 CarswellOnt 8439, [2007] OMBD No 1189.

45The Tribunal reviewed these cases but does not find them to be directly on point with the Applicant’s submissions. These cases instead stand for the principle that a ZBL is the legal mechanism which governs the permitted uses of lands within the municipality, and a ZBL is not rendered inoperative if it happens to be inconsistent with the governing OP. Section 24(4) provides certainty in this regard, deeming the ZBL to be in conformity with the governing OP whether it is actually consistent or not.

46The Tribunal finds that the cases do not stand for a principle to deem the governing OP to be in conformity with the applicable ZBL, and the Tribunal does not find that s. 24(4) of the Planning Act is meant to work that way. In fact, the cases proffered by the Applicants clearly show that it is possible for an OP and a ZBL to be inconsistent with each other (the most obvious example is when a ZBL is not amended to reflect changes to an OP). Put another way, the policies of an OP are not automatically altered or to be re-interpreted by the passing (or failure of passing) of a ZBL.

47For example, where an OP is updated, but the municipality fails to correspondingly update the corresponding comprehensive ZBL, if s. 24(4) worked as it is suggested by the Applicant, then it could have the effect of reversing the updated changes of the OP. The Tribunal finds that such an outcome is clearly not the legislature’s intent with respect to s. 24(4) of the Planning Act.

48To be clear, subsection (c) of s. 51(24) of the Planning Act involves “[conformity] to the official plan” [emphasis added], not conformity with the applicable ZBL. This is not to say that the ZBL is irrelevant to the larger analysis of the present matter, as it contributes to inform the existing and planned character of a neighbourhood. Specific reference to the ZBL is also included in other provisions of the OP, which makes it relevant. Just the same, s. 51(24)(c) speaks of the OP, not the ZBL, and Policy 17.E.20.5 also makes no reference to the ZBL. As it relates to conformity with OP Policy 17.E.20.5, therefore, we are concerned with the language of that policy, not the language of the ZBL.

49The result is that we must perform a contextual approach to determine conformity with Policy 17.E.20.5 to determine if the proposed lots “reflect the general scale and character of the established development pattern of surrounding lands”. We must look at the context of the proposal and, comparatively, the context of the surrounding lands. The Tribunal finds that this involves an approach similar to that which was proposed by Mr. Ramsay; although, as already found above, we must use a larger sample-size than that of which Mr. Ramsay proposed in the present case.

50This leads the Tribunal to agreeing with Mr. Ramsay’s approach in principle, but finding in favour of the Applicants insofar as the proposed severed lots adequately “reflect the general scale and character of the established development pattern of surrounding lands” (upon the basis that the greater Central Frederick Neighbourhood area, south of Frederick Street should be included in the analysis at minimum).

51It is noteworthy that Ms. Chambers drew the Tribunal’s attention to the recent Tribunal decision of Drelini v. Kitchener (City), 2021 CarswellOnt 15406 (“Drelini”), seeking a similar outcome (the Consent in Drelini was denied for lack of conformity with Policy 17.E.20.5). The Tribunal considered that case but finds, while applying the same principles and the same general interpretation and application of Policy 17.E.20.5 that was accepted by the Tribunal in Drelini, a different outcome is appropriate. The different outcomes are the result of the cases being distinguishable insofar as they involve different neighbourhood contexts.

52The Tribunal also notes an alternative position taken by the Applicants. They submitted that, by virtue of the fact that the policies of the Secondary Plan prevail over those of the OP in the event of a conflict, and Policy 13.9.1.2 of the Secondary Plan provides that the policies of the Secondary Plan “will be implemented through the application of the comprehensive Zoning By-law”, Policies 3.C.2.52 and 17.E.20.5 of the OP will therefore be superseded by Policy 13.9.1.2 of the Secondary Plan if these policies can be used as the basis for turning down the Consent Application. All of this is because, the Applicants submit, the ZBL permits the proposed lots dimensions.

53While the Tribunal agrees that the policies of the Secondary Plan do prevail in the event of a conflict with the OP, the Tribunal does not find that there is a conflict which has the effect of nullifying the application of either Policy 3.C.2.52 or 17.E.20.5. Regarding Policy 3.C.2.52, the Tribunal has found that it cannot form the basis for turning down the Consent application, so there is no potential for conflict (even if the Tribunal accepts the Applicants’ submissions). Regarding Policy 17.E.20.5, while the Tribunal has found that it has the potential to form the basis for turning down the Consent Application, this does not necessarily mean that it is in conflict with the Secondary Plan.

54Once again, while the ZBL clearly permits the proposed Consent, this fact does not work backwards to effectively implement supporting policy within the Secondary Plan. While ZBLs and Plans are expected to work in tandem, they remain separate instruments with potential to be inconsistent with each other. Furthermore, as already discussed, while s. 24(4) of the Planning Act ensures that ZBLs are deemed to be in conformity with the applicable Plans, including the Secondary Plan, it does not function to import provisions of the ZBL into the Secondary Plan as a matter of policy.

Conclusion

55In conclusion, the Tribunal finds that the proposed Consent conforms with the applicable municipal Plans and, correspondingly, satisfies all of the criteria of s. 51(24) of the Planning Act, including subsection (c), and it otherwise represents good planning and is in the public interest. Furthermore, the Tribunal is satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Planning Act.

Conditions

56OP Policy 17.E.20.7 states, “The Committee of Adjustment may attach such conditions as it deems necessary to the approval of a consent, in accordance with the Planning Act”.

57Mr. Patterson noted that the staff report concerning this matter included various recommended conditions that were considered appropriate for the creation of a new lot. He opined that similar conditions, which were slightly modified on consent of the Applicant, the City and the Region to ensure they can be implemented as intended, are appropriate. The Tribunal accepts Mr. Patterson’s opinion regarding these conditions and finds accordingly.

ORDER

58THE TRIBUNAL ORDERS that the appeal is allowed, in part, and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order.

“K.R. Andrews”

K.R. ANDREWS

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

Condition of Approval for Consent Application B2021-038 Conditions - City of Kitchener

1. That the owner shall obtain a tax certificate from the City of Kitchener to verify that there are no outstanding taxes on the subject properties to the satisfaction of the City's Revenue Division.

2. That the owner shall provide a digital file of the deposited reference plan(s) prepared by an Ontario Land Surveyor in PDF and either .dwg (AutoCAD) or .dgn (Microstation) format, as well as two full size paper copies of the plan(s). The digital file needs to be submitted according to the City of Kitchener's Digital Submission Standards to the satisfaction of the City's Mapping Technologist.

3. That the owner pays to the City of Kitchener a cash-in-lieu contribution for park dedication equal to 5% of the value of the lands to be severed.

4. The owner shall make financial arrangements to the satisfaction of the City's Engineering Services, for the installation of new service connections to the severed and retained lands.

5. The owner shall prepare a servicing plan showing outlets to the municipal servicing system, to the satisfaction of Engineering Services.

6. The owner shall prepare and submit a Development Asset Drawing (AutoCAD format) for the site with corresponding layer names and asset information, to the satisfaction of the City's Engineering Services.

7. The owner shall make financial arrangements to the satisfaction of the City's Engineering Services for the installation, to City standards, of boulevard landscaping including street trees, and a paved driveway ramp, on the severed and retained lands, or otherwise receive relief from Engineering Services for this requirement.

8. The owner shall enter into an agreement with the City of Kitchener to be prepared by the City Solicitor and registered on title of the severed and retained lands, which shall include the following:

a. That the owner shall prepare a Tree Preservation Plan for the severed and retained lands in accordance with the City's Tree Management Policy, to be approved by the City's Director of Planning and implemented prior to any grading, servicing, tree removal or the issuance of any building permits. Such plans shall include, among other matters, the identification of a proposed building envelope/ work zone, landscaped area and vegetation to be preserved.

b. The owner further agrees to implement the approved Tree Preservation Plan. No changes to the said plan shall be granted except with the prior approval of the City's Director of Planning

Conditions - Region of Waterloo

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

2. That prior to final approval, the owner/applicant enter into an agreement with the City of Kitchener to include the following noise mitigation / warning clauses in all Offers of Purchase and Sale, lease/rental agreements and condominium declarations for all dwellings on the severed and retained lands.

i. 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

ii. The dwelling unit(s) on the proposed severed and retained lands will be registered with the following noise warning clauses on title:

a. "The purchasers/tenants are advised that sound levels due to increasing road traffic on Conestoga Parkway / Highway 7 may occasionally interfere with some activities of the dwelling occupants as the sound levels may exceed the sound level limits of the Waterloo Region and the Ministry of Environment Conservation and Parks (MECP)"

b. " This dwelling has been fitted with a forced air-ducted heating system and has been designed with the provision of adding central air conditioning at the occupant's discretion. Installation of central air conditioning by the occupant in low and medium density developments will allow windows and exterior doors to remain closed, thereby ensuring that the indoor sound levels are within the sound level limits of the Waterloo Region and the Ministry of the Environment Conservation and Parks (MECP)"

iii. That prior to the issuance of any building permits, the City of Kitchener's Building Inspector will certify that the noise attenuation measures are incorporated in the building plans and upon completion of construction, the City of Kitchener's Building Inspector will certify that the dwelling units have been constructed accordingly.