Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 27, 2023

CASE NO(S).: OLT-22-004211

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Innovation Developments Kitchener Limited Subject: Request to amend the Official Plan – Refusal of request Description: Proposing to develop the Site with a 3-tower (38, 36, 25 storeys), mixed-use development containing 1,124 residential dwelling units. Reference Number: OPA21/011/V/ES Property Address: 146-162 Victoria Street South and 92-110 Park Street Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-22-004211 OLT Lead Case No: OLT-22-004211 OLT Case Name: Innovation Developments Kitchener Limited v. Kitchener (City)

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

Applicant/Appellant: Innovation Developments Kitchener Limited Subject: Application to amend the Zoning By-law – Refusal of application Reference Number: ZBA/21/017/V/ES Property Address: 146-162 Victoria Street South and 92-110 Park Street Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-22-004212 OLT Lead Case No: OLT-22-004211

Heard: March 30, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Innovation Developments Kitchener Limited	Patrick Harrington
City of Kitchener	Katherine Hughes
Region of Waterloo	Fiona McCrea

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN AND KURTIS SMITH ON MARCH 20, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The following decision and Order arise out of the settlement of appeals brought pursuant to s. 22(7) and 34(11) of the Planning Act¹ (“Act”) by Innovation Developments Kitchener Limited (“Appellant”) against the decision of the City of Kitchener (“City”) to refuse applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) in relation to the property located at 146-162 Victoria Street South and 92-110 Park Street (“subject property”/“site”). The Appellant seeks to redevelop the site with a mix of high density residential and commercial uses in the form of three towers at 38, 36 and 25 storeys.

2This was to be the second Case Management Conference (“CMC”) with respect to the above noted appeals. At a previous CMC held on December 14, 2022, the Tribunal granted Participant status to the following individuals: Sheldon Atos, Gail Pool and Katherine Bitzer. At that time, both counsel for the City and the Region indicated they were without instructions as a result of recently held Municipal elections. Accordingly, the Tribunal scheduled a second CMC for the purposes of receiving an update on the Parties’ efforts to settle (if any) and to set the matter down for a hearing, if necessary.

3In the interim, the Parties were able to reach an agreement to resolve the appeals and, accordingly, requested that the previously scheduled CMC be converted to a settlement hearing. The request was granted and these proceedings were convened as a settlement hearing pursuant to Rule 12.1 of the Tribunal’s Rules of Practice and Procedure.

4The Parties provided Minutes of Settlement, a draft Order and the sworn Affidavit of Kristen Barisdale, a Registered Professional Planner, whom the Tribunal qualified to provide land use planning opinion evidence. Ms. Barisdale delivered a detailed planning rationale in support of the settlement and, with reference to her Affidavit, opined that the proposed planning instruments, and the development they will ultimately permit, satisfy the requisite legislative requirements and are representative of good planning in the public interest.

5In advance of this hearing event, the Tribunal received three additional requests for Participant Status from the following individuals: Gwen Wheeler, Christopher Gosselin, and Margaret Nickels. With the consent of the Parties, the Tribunal granted the requests, accepted the written statements for consideration and stood the matter down briefly to allow Ms. Barisdale an opportunity to review the statements so as to be able to comment upon same during her testimony.

CONTEXT AND PROPOSAL

6The subject property is approximately 0.9 hectares (“ha”) in size, having frontage on Victoria Street South as well as on Park Street. At present, the site is comprised of seven parcels containing various 1-3 storey residential and commercial buildings. Existing and planned built forms in the surrounding area include mix-used high-rises and single-family dwellings. It is currently designated Mixed Use in the City of Kitchener Official Plan (“COP”) and is “split zoned”, with the properties at 150, 154 and 162 Victoria Street zoned Medium Intensity Mixed Use Corridor (MU-2) and the properties at 146 and 148 Victoria Street South as well as 102, 106 and 110 Park Street zoned Low Intensity Mixed Use Corridor (MU-1) in the City of Kitchener Zoning By-Law 8501 (“ZBL”).

7The proposal for which the Tribunal’s approval is now sought contemplates the redevelopment of the subject site with, inter alia, three high-density residential towers with a total of 1,124 residential units and a maximum Floor Space Ratio (“FSR”) of 11.6:

Tower A (25 storeys): 253 residential units;

Tower B (36 storeys): 440 residential units; and

Tower C (38 storeys): 411 residential units.

8The towers are to be connected by a 6-storey podium which will include 1,750 square metres (“sq m”) of retail and commercial space; bicycle and vehicular parking; lobbies, loading areas, common private amenity space for residents; and residential units atop the 2nd floor.

9In order to give effect to the foregoing proposal, the Tribunal is asked to approve an OPA which maintains the existing Mixed Use designation, while adding a site-specific policy area to permit a maximum FSR of 11.7. The Tribunal is further asked to approve a ZBA, which rezones the entirety of the subject property to Mixed Use Three Zone (MIX-3) with the following site specific provisions:

a) Minimum front yard setback to Park Street of 0.0 metres;

b) Minimum exterior side yard setback to Victoria Street South shall be 0.0 metres;

c) Maximum building height of 122 metres;

d) Maximum number of storeys of 38;

e) Maximum Floor Space Ratio of 11.68;

f) Minimum non-residential gross floor area of 1,750 square metres;

g) Minimum ground floor street line façade width as a percent of the width of the abutting street line of 70%;

h) Minimum percent street line façade opening of 70%;

i) Minimum required rate of vehicle parking spaces for Multiple Dwellings of 0.6 spaces per dwelling unit;

j) Minimum required Class A bicycle parking stalls for Multiple Dwellings shall be 0.6 spaces per unit; and

k) Geothermal wells are prohibited on site.

The proposed ZBA also includes a Holding Provision (“H”) requiring acknowledgement of a Record of Site Condition by the Province prior to the establishment of residential uses, daycare uses and other sensitive uses.

10Similar to the OPA, the proposed ZBA includes an H, which establishes that residential development is not permitted until such time as a Record of Site Condition is submitted and approved to the satisfaction of the Ministry of the Environment, Conservation and Parks (“MECP”).

LEGISLATIVE FRAMEWORK

11In deciding on the matters before it, the Tribunal must be satisfied that the proposed development is representative of good planning and is in the public interest. The proposed planning instruments must be found to: have appropriate regard for matters of Provincial interest in s. 2 of the Act; be consistent with the Provincial Policy Statement 2020 (“PPS”); conform/not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”); conform with the Region of Waterloo Official Plan (“ROP”); and conform with the COP.

12In addition to the foregoing, the Tribunal must have regard for the decision of the municipal council and the information considered by council in the course of making that decision, as set out in s. 2.1(1) of the Act.

PLANNING EVIDENCE

13The Tribunal heard that, although Council refused the applications, City Staff recommended approval of same in a detailed Staff Report dated May 13, 2022 (“Staff Report”). Ms. Barisdale testified that she wholly concurred with the planning analysis, conclusions and recommendations contained within the Staff Report and that the form and content of the OPA and ZBA before the Tribunal are essentially the same as those recommended therein. Overall, she opined that the proposed instruments, and the development they will ultimately permit, meet all the requisite legislative tests and are representative of good planning in the public interest.

14With respect to matters of provincial interest, Ms. Barisdale opined the proposed development has appropriate regard for same, including but not limited to: the appropriate location for growth and development; the provision of high-quality, safe, accessible, attractive and vibrant public spaces which are pedestrian oriented; and the provision of a full range of housing (including affordable housing), as well as a range of employment opportunities.

15She testified that the proposal is consistent with the PPS and conforms to the GP, noting that it achieves important policy goals set out in both, as it allows for residential intensification and infill development in a compact, well-designed built form which will: be supportive of both active transportation and transit; efficiently use existing infrastructure and public services; and broaden the range and mix of housing options available in Downtown Kitchener. With respect to housing, in particular, it was noted that the proposal includes community benefits specifically designed to assist the City in providing affordable housing options to its residents.

16Ms. Barisdale explained the ways in which the proposed development achieves conformity with the ROP and COP, drawing the Tribunal’s attention to policies within both which speak to leveraging proximity to transit. With reference to visual exhibits included in her Affidavit, she explained that the subject property is located within comfortable walking distance to public transit. She also drew attention to policies within the COP which speak to the planned function and use of Major Transit Station Areas (“MTSAs”) and the Urban Growth Centre (“UGC”), noting that the site is located within such areas, which are intended to accommodate a significant share of the City’s future population and employment growth through residential intensification which is transit-supportive/pedestrian-friendly. She explained that the site’s Mixed Use designation permits medium and high density residential uses as well as a range of non-residential uses, such as those contemplated by the proposal. Finally, she noted that the proposal includes a number of enhancements (including, but not limited to: a large ground floor outdoor plaza, landscaping and tree plantings, seating, etc.), all of which are designed to provide a safe and vibrant pedestrian-scale streetscape to activate the public realm along Victoria Street South and Park Street.

17Finally, Ms. Barisdale explained the purpose of the H included as part of both the proposed OPA and ZBA. She noted that, because part of the subject site had previously been used for non-residential uses, the MECP must confirm that there is no contamination on the site which would impact future residents prior to development.

Participant Statements

18In a comprehensive fashion, Ms. Barisdale reviewed each issue and corresponding policy/guideline raised in Exhibit 3G (Liveable Park and Victoria Position Statement), which addressed concerns set out in the various Participant Statements before the Tribunal for consideration. She explained, from a land use planning perspective, why the proposed development is appropriate for the site and representative of good planning, and further explained how the proposal achieves consistency and conformity with the various planning policies raised by the Participants. For the sake of brevity, the totality of the evidence given by Ms. Barisdale in this regard is not exhaustively addressed in this decision. Rather, the Tribunal has summarized below what it considers to be the more salient portions thereof.

19With reference to visual exhibits in her Affidavit, Ms. Barisdale provided an overview of the site’s surroundings, noting the existence of a mix of uses including commercial, office, mid- to high rise/density and low rise residential, and parkland/open space. She described the site and area as being ‘in transition’, noting the City has planned for this area to be redeveloped over time at medium and high densities in order to more closely align with the functions of the UGC and MTSA. In her view, the proposal is consistent with and similar to what has been, and will be, developed along this mixed use corridor, drawing attention to existing and approved buildings ranging from 20-25 storeys nearby.

20In relation to concerns respecting height, massing/scale, transition and respect for the character of the area, including the low-rise residential neighbourhood, Ms. Barisdale reiterated that the area is experiencing a planned transition, but noted that the proposed development has nevertheless been deliberately designed and oriented to address compatibility and transition. She noted that the tower elements are compact and stepped back from the street atop a 6-storey podium similar in height to some existing buildings in the area, which will act as a buffer between the street and the tower elements. She discussed how the design takes advantage of the buffering/separation already provided by existing rights of way, noting that along the Park Street frontage, there is 5.5 metre (“m”) to 6 m of space between the boundary of the subject property and the curb, and along the Victoria Street South frontage there is roughly 3 m of space widening to 5.5 m moving eastward along the road. In her view, these rights of way, combined with podium size, tower step-backs and the design’s enhanced streetscape features, provide adequate separation from, transition to, and respect for the character of the site’s surroundings, including nearby low-rise residences.

21Some of the Participants expressed a preference for a reconfigured design which would see the higher towers located elsewhere on the site. In response, Ms. Barisdale explained that the proposed design/orientation meets the intent of the City’s OP policies and guidelines respecting urban design and tall buildings and takes into account important considerations such as overlook and adequate building separation. She further explained that altering the tower configuration would result in undesirable impacts, including but not limited to, the inability to meet requirements for sunlight on adjacent properties.

22Finally, with respect to concerns in relation to adverse impacts such as loss of trees and heat island effects, Ms. Barisdale testified that assessments, including a tree inventory, had been conducted and nothing significant had been identified as requiring protection. She further testified that significant streetscape enhancements (i.e: tree plantings and landscaping) and green roof elements have been incorporated into the design to address heat island effects.

ANALYSIS AND FINDINGS

23The Tribunal reviewed and considered the concerns raised in the written statements filed by the various Participants in this proceeding but is nevertheless satisfied, based upon the uncontested land use planning opinion evidence provided by Ms. Barisdale, that the proposed development is representative of good planning and is in the public interest. The Tribunal is further satisfied that the proposed OPA and ZBA have appropriate regard for matters of Provincial interest; are consistent with the PPS; and conform to the GP, ROP and COP.

24The Tribunal accepts Ms. Barisdale’s opinion that the proposal represents an efficient use of land and resources which accomplishes important local, regional and Provincial planning policy objectives, including but not limited to: the creation of a diverse mix of housing options to accommodate a range of household sizes, creation of complete communities (including affordable housing) and the achievement of growth targets through cost-effective development patterns which optimize infrastructure/transit investments and minimize land consumption and servicing costs.

25With regard to s. 2.1(1) of the Act, the Tribunal would note that, although this appeal initially arose out of a decision to refuse the OPA and ZBA applications, the matter now comes before it as a settlement. It is further noted that City Staff recommended approval of the applications in the Staff Report, which was considered by the municipal council and which has been considered by the Panel.

26Finally, it is noted that although the draft Order provided indicates that an arrangement has been reached with respect to costs in relation to this matter, this represents a private agreement between the Parties and, as such, will not form part of the Tribunal’s Order.

ORDER

27The Tribunal orders that the appeals by Innovation Developments Kitchener Limited are allowed, in part, and:

a) The Official Plan for the City of Kitchener is amended as set out in Attachment 1 to this Order;

b) Zoning By-law No. 85-1 and By-law No. 2019-051 are amended as set out in Attachment 2 to this Order; and

c) The municipal clerk is authorized to format, as may be necessary, and assign a number to the Official Plan Amendment and/or Zoning By-law Amendment for record keeping purposes.

“S. Braun”

S. Braun MEMBER

“Kurtis Smith”

KURTIS SMITH 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.

Footnotes

1. 1R.S.O. 1990, c. P. 13, as amended.