Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 3, 2023
CASE NO(S).: OLT-22-004739
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2872885 Ontario Inc.
Subject: Minor Variance
Description: To permit to construct a new 3 storey mixed use development containing 32 residential units with a commercial area, vehicular parking spaces and bicycle parking spaces
Reference Number: A-48/22
Property Address: 580 Coldstream Drive
Municipality/UT: Waterloo/Waterloo
OLT Case No.: OLT-22-004739
OLT Lead Case No.: OLT-22-004739
OLT Case Name: 2872885 Ontario Inc. v. Waterloo (City)
Heard: February 27, 2023 by Video Hearing
APPEARANCES:
Parties Counsel
2872885 Ontario Inc. A. Ciccone N. MacIsaac (articling student)
City of Waterloo S. Smith
DECISION DELIVERED BY C.I. MOLINARI AND steven cooke ON FEBRUARY 27, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal under s. 45(12) of the Planning Act ("Act") filed by 2872885 Ontario Inc. ("Appellant") against the decision of the City of Waterloo ("City") Committee of Adjustment (“CofA”) denying an Application for Minor Variance (“Application”) for the property municipally known as 580 Coldstream Drive (“Subject Property”).
2The Subject Property is a 0.317 hectare vacant block within a registered plan of subdivision with 45 metres (“m”) of frontage along Coldstream Drive and 67 m of frontage along Conservation Drive. The property is adjacent to a low-density residential neighbourhood to the north and east, and across the street from a conservation area to the south and a stormwater management pond (“SWMP”) to the west. A soccer field is located west of the SWMP.
3The Appellant is proposing to construct a three-storey mixed-use development containing 32 residential units, with commercial uses on the first floor and surface and ground level structured parking. To implement the proposal, the Appellant sought relief from the City Zoning By-law 2018-050 (“ZBL”) with respect to residential and commercial parking requirements, structured parking requirements and the type of the required loading space.
4The Subject Property is designated Convenience Commercial in the City Official Plan (“COP”) and zoned Convenience Commercial (C3-10) in the ZBL. The proposed uses are permitted in the C3-10 zone.
MINOR VARIANCE APPLICATION
5By way of background, a previous similar minor variance application, which included an additional variance to the required landscape buffer along the north property line, was denied by the CofA in June of 2022 despite the Appellant receiving endorsement from the City’s Site Plan Review Committee. The development proposal was subsequently revised to meet the landscape buffer requirement of the ZBL and the current Application was filed to seek relief from certain zoning standards.
6The minor variances requested in the Application include:
a minimum of 1 parking space per residential unit (32 spaces) whereas the ZBL requires 1.15 parking spaces per residential unit (37 spaces);
a minimum of 3 parking spaces per 100 square metre (“sq m”) of building floor area (13 spaces) whereas the ZBL requires 4 parking spaces per 100 sq m of building floor area for commercial uses (17 spaces);
a Type A loading space (3m x7m) whereas the ZBL requires a Type B loading spaces (3m x 12m); and
structured parking on grade of the first storey whereas the ZBL does not permit structured parking on the first storey.
7The Application was heard by the CofA on November 15, 2022, and it was supported by a recommendation from the City Planning Department that the Application be approved with conditions. Several residents attended the CoA hearing in opposition to the Application. A motion to deny the Application was carried, resulting in the denial of the Application.
8The current development proposal also requires Final Site Plan approval by the City, which is currently underway with conditional endorsement granted on September 15, 2022.
REQUEST FOR PARTICIPANT STATUS
9Counsel for the City indicated at the beginning of the hearing that the City would not be taking a position on the substantive merits of the appeal and would not be calling witnesses. The City requested, however, that the conditions of approval included in the City’s Staff Report (“Staff Report”) be imposed should the appeal be allowed.
10In advance of the hearing, a Participant Status Request form was received from Fraser Reid. Mr. Reid’s request outlined his concerns related to public transit, the timing of data collection, on-street parking and parking density.
11With the consent of the Parties, the Participant Status request for Mr. Reid was granted by the Tribunal.
LEGISLATIVE FRAMEWORK
12An appeal pursuant to section 45(12) of the Act is a hearing de novo. In this case, the Appellant bears the onus of demonstrating that the four tests as set out in section 45(1) of the Act have been met. These tests are summarized as follows:
Do the variances maintain the general intent and purpose of the Official Plan?
Do the variances maintain the general intent and purpose of the Zoning By-law?
Are the variances desirable for the appropriate development or use of the land, building or structure? and
Are the variances minor in nature?
13In carrying out its responsibilities under the Act, the Tribunal shall have regard to matters of provincial interest as set out in s. 2 of the Act, and, while making its decision related to a planning matter, the Tribunal shall have regard to the decision of the Township and the information it considered in accordance with s. 2.1(1) of the Act.
14In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter shall be consistent with policy statements issued by the Province and shall conform with provincial plans. In this case, the Tribunal’s decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”).
EXPERT WITNESSES
15In support of the proposal, Jennifer Voss was qualified to provide expert land use planning opinion evidence and Erica Bayley was qualified to provide expert transportation engineering opinion evidence.
16In addition, Rita Szilock, Planner for the City and author of the Staff Report, appeared under summons and was qualified to provide expert land use planning opinion evidence.
PLANNING EVIDENCE
Appellant Submissions
17Ms. Voss provided the Tribunal with uncontested land use planning opinion evidence in support of the Application.
18Ms. Voss proffered that the variances sought are required to achieve the purposes of the Act and have regard to the relevant matters of provincial interest in s. 2 of the Act. She testified that the proposed development will efficiently utilize available land and existing infrastructure and provide a full range of housing integrated with commercial uses to promote a complete and sustainable community. Further, it is her opinion that the site is an appropriate location for growth and development within the built-up area with existing transit and active transportation infrastructure available on Conservation Drive.
19Ms. Voss further submitted that the proposed development represents an appropriate intensification of a vacant site with measures designed to minimize impacts on abutting low density residential uses.
20Ms. Voss opined that the variances are consistent with the relevant policies in the PPS and the Growth Plan, as the proposed development supports the goals of a compact and efficient land use, will efficiently utilize available land and existing infrastructure, and will integrate a range of land uses and a mix of housing options in an existing built-up neighbourhood.
21With respect to conformity with the Growth Plan in particular, Ms. Voss proffered that the proposed development is within a settlement area with existing municipal services, supports the achievement of a complete community by including a mix of land uses and housing types and will contribute towards achieving the City’s intensification target.
22With respect to the four tests of a minor variance, Ms. Voss opined that the Application meets the general intent of the Region of Waterloo Official Plan, 2015 (“ROP”), the COP and the ZBL. She further opined that the Application is desirable for the appropriate development or use of the land and is minor in nature.
23With respect to the ROP and the COP, it was Ms. Voss’ submission that the property is designated for the proposed use, and the Application will allow for a mixed-use development which will provide an appropriate form of housing that is compatible with the neighbourhood, is in an appropriate location to utilize the existing transit service and contributes to a complete community.
24Ms. Voss opined that each variance meets the general intent and purpose of the ZBL as the reduction to the number of residential and commercial parking spaces will provide sufficient parking for all users, the at-grade structured parking will be screened from public view and the proposed loading space is more appropriately sized for the compact scale of the property.
25Ms. Voss further opined that the variances are desirable for the appropriate development or use of the land as they will allow for a more compact and efficient built form thereby contributing to the creation of a complete community with a mix of housing types.
26Finally, it was Ms. Voss’ opinion that the variances are minor in nature as they do not negatively impact the planned function of the Subject Property and are required to achieve a more efficient development without compromising a compatible and appropriate design.
City Submissions
27Ms. Szilock advised the Tribunal that, in coming to her recommendation in the Staff Report that the Application be approved subject to conditions, she took into consideration the submission material, the agency comments and comments received from the public. Ms. Szilock provided her opinion that the variances facilitate the construction of a mixed-use development that conforms to the COP in that the Convenience Commercial designation contemplates small scale commercial and residential uses that are not dominated by parking.
28Ms. Szilock testified that the general intent of the ZBL is met by the proposed Application. With respect to the parking variance, Ms. Szilock advised the Tribunal that the ZLB standards are to ensure that sufficient parking is provided to meet the needs of the respective uses. She determined that, since one more parking space is proposed than the Parking Study requires for the site, the general intent of the ZBL is met. With respect to the loading space, Ms. Szilock opined that the proposed smaller size loading space is sufficient for the proposed smaller scale commercial uses. With respect to the structured parking proposed at-grade, Ms. Szilock proffered that the general intent of the ZBL in this respect is to ensure that the site is not dominated by structured parking. Based on her review of the proposed site plan, she was of the opinion the site would have an active frontage along the streets and that the structured parking would be shielded from view, thereby meeting the general intent of the ZBL.
29Ms. Szilock advised the Tribunal that in considering whether a proposed variance is minor in nature, she considered the impact of the variances. She opined that, given the context of the site and surrounding neighbourhood, the site design and the Parking Study, the variances are minor in nature.
30Finally, Ms. Szilock opined that the proposed variances are desirable for the appropriate development and use of the land as it will contribute to the creation of a complete neighbourhood, contribute to a mix of housing units within the existing neighbourhood and provide commercial uses within walking distance of the existing neighbourhood.
31Ms. Szilock testified that she recommended approval of the Application subject to the following conditions, which in her opinion are appropriate:
i. That all legal costs and disbursements incurred by the City of Waterloo with respect to this application be borne by the Applicant;
ii. That a building permit be obtained and construction commenced prior to November 14, 2024;
iii. That the tandem parking spaces be provided for the life of the building and available for use by residents or tenants of the building, and shall not be converted into additional building floor area or become a commercial parking operation;
iv. That 1 residential parking space per residential unit and 0.1 visitor parking spaces per residential unit be provided on the subject lands; and
v. That the Minor Variance approval only apply to the development of a 3 storey mixed-use building that is in general conformity with the conceptual Site Plan (submitted with application A-48/22), prepared by Masri O Architects Inc., dated September 14, 2022, (drawing no. A2.4).
TRANSPORATION ENGINEERING EVIDENCE
32Ms. Bayley provided the Tribunal with uncontested transportation engineering opinion evidence related to a Parking Study undertaken by Paradigm Transportation Solutions Limited (“Parking Study”) in support of the Application
33Ms. Bayley testified that the scope of the Parking Study was developed in consultation with the City Transportation staff and it confirmed that the minor variances with respect to parking can be supported from a transportation engineering perspective.
34Ms. Bayley advised the Tribunal that there is a downward trend in vehicle ownership generally and that the Institute of Transportation Engineers (“ITE”) parking rates forecast a demand of 48 spaces in total, which is one space fewer than what is proposed to be supplied through the Application. She stated that the proposed 49 spaces do not include the 4 tandem parking spaces to be provided on site.
35To supplement the ITE data, Ms. Bayley proffered that parking surveys were conducted at two proxy sites in the City of Kitchener and parking requirements of other municipalities in Ontario were reviewed and applied resulting in an average of 48 spaces required for the proposed development.
36Ms. Bayley further testified that the proposed bicycle parking spaces exceed the ZBL requirement for the site by almost double.
37Ms. Bayley opined generally that the reduction in parking allows for increased housing affordability, which is a goal of the Province, and that there is a shift in municipal standards towards parking maximums, rather than parking minimums, and a reduction in parking requirements for residential developments.
38The overall conclusion of the Parking Study enabled Ms. Bayley to support the Application with the recommended conditions and she opined that the proposed parking supply is considered appropriate and adequate given the downward trend of vehicle ownership, the ITE rates, the parking surveys at similar proxy sites, and the proposed mixed-use of the site. She concluded that the proposed reduction in parking spaces is well suited for the site based on the location and access to alternative modes of transportation and that it reflects the general direction to reduce parking requirements.
PARTICIPANT SUBMISSION
39Mr. Reid identified four main issues in his Participant Statement including public transit, the timing of the data collection for the Parking Study, on-street parking availability, and the parking density being requested. These concerns were each addressed by Ms. Bayley and Ms. Szilock in their testimony as summarized below.
40Ms. Bayley addressed Mr. Reid’s concern related to public transit and advised the Tribunal that public transit is available along Conservation Drive with a bus stop at the corner of Conservation Drive and Coldstream Drive which connects directly to the Northfield LRT Station, providing transit access throughout the Region of Waterloo.
41Ms. Bayley testified that the Parking Study considered several different data sources including the ITE data (which is collected at all times of the year), the TTS data (which is collected in the fall) and the proxy site data (which was collected in July 2018), resulting in a range of data collected over the course of the year.
42Ms. Szilock testified that she undertook site visits during the dinner hour due to concerns of residents of on-street parking related to the soccer field located to the west of the Subject Property. She testified that she observed soccer games in session and approximately 10 to 12 cars parked on Coldstream Drive south of Inglis Falls Place, with considerable on-street parking available.
43With respect to parking density, Ms. Bayley testified that the Parking Study concluded that the proposed parking rate was supportable given the data sources and the proposed Transportation Demand Management measures (including the on-site pedestrian connections to existing sidewalks, the bicycle parking spaces provided and the access to a bus route with connectivity to the broader transit network).
FINDINGS
44The Tribunal is satisfied that, through the expert opinion evidence of Ms. Voss and Ms. Szilock, the revised minor variances have regard to all relevant matters of provincial interest in s. 2 of the Act, including those related to the adequate provision and efficient use of infrastructure systems, the orderly development of safe and healthy communities, the adequate provision of a full range of housing, the appropriate location of growth and development, the promotion of development that is sustainable and the promotion of well-designed built form.
45The Tribunal concurs with the opinions of Ms. Voss and Ms. Szilock and finds that the variances, individually, collectively, and subject to the conditions imposed by the CofA, as listed in paragraph [31], are consistent with the PPS and conform to the Growth Plan in accordance with s. 3(5) of the Act.
46The Tribunal is satisfied that, through the expert opinion evidence of Ms. Voss and Ms. Szilock, all four tests are met for each variance in accordance with s. 45(1) of the Act.
47Further, pursuant to s. 2.1(1) of the Act, in making this decision, the Tribunal has had regard for the matters considered by the CofA (including the submissions made by the neighbours and the staff report) and the decision of the CofA with respect to the original variances. In addition, the Tribunal has had regard for the concerns raised by Mr. Reid in his Participant Statement and finds that they were sufficiently addressed by Ms. Bayley and considered in the Parking Study.
48The Panel recognizes that as part of the settlement before the Tribunal, the Parties have agreed to the conditions outlined in paragraph 31, that includes “i. That all legal costs and disbursements incurred by the City of Waterloo with respect to this application be borne by the Applicant”. While the Parties may have already agreed to this condition, the Tribunal finds that this is a private matter between the two Parties and has no opinion on the matter.
ORDER
49THE TRIBUNAL ORDERS that the appeal is allowed and the variances to City of Waterloo Zoning By-law 2018-050 are authorized, subject to the following conditions:
i. That a building permit be obtained and construction commenced prior to March 31, 2025;
ii. That the tandem parking spaces be provided for the life of the building and available for use by residents or tenants of the building, and shall not be converted into additional building floor area or become a commercial parking operation;
iii. That 1 residential parking space per residential unit and 0.1 visitor parking spaces per residential unit be provided on the subject lands; and
iv. That the Minor Variance approval only apply to the development of a 3 storey mixed-use building that is in general conformity with the conceptual Site Plan (submitted with application A-48/22), prepared by Masri O Architects Inc., dated September 14, 2022, (drawing no. A2.4).
“C.I. Molinari”
C.I. MOLINARI
MEMBER
“Steven Cooke”
STEVEN COOKE
VICE-CHAIR
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.