Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 18, 2023

CASE NO(S).: OLT-22-003824

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 2564992 Ontario Inc.

Subject: Minor Variance

Description: Proposing to add a four-storey apartment building to the subject lands while retaining the existing office use and residential uses of the existing buildings.

Reference Number: A-2022-037

Property Address: 234-240 Frederick Street

Municipality/UT: Kitchener/Waterloo

OLT Case No: OLT-22-003824

OLT Lead Case No: OLT-22-003824

OLT Case Name: 2564992 Ontario Inc. v. Kitchener (City)

Heard: August 30, 2022 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel/Agent*
2564992 Ontario Inc.	Scott Snider
City of Kitchener	Katherine Hughes

DECISION DELIVERED BY S. MANN ON AND ORDER OF THE TRIBUNAL

INTRODUCTION

12564992 Ontario Inc. (“Applicant”) applied to the City of Kitchener (“City”) Committee of Adjustment (“CoA”) for minor variances from Zoning By-law No. 85-1 (“ZBL”) to allow for redevelopment of 234-240 Frederick Street (“Subject Property”) and was subsequently refused by the CoA.

2The Applicant is proposing to demolish an existing accessory structure in order to add a four-storey apartment building to the Subject Property while retaining the existing office use and the residential uses of the existing buildings. The proposed building is to be located north of the existing residential building located at 240 Frederick Street. The proposed layout of development, incorporating the existing and new construction, is as follows with the existing dwellings shaded in grey, the proposed apartment building in white, and the Subject Property outlined in blue:

SUBJECT PROPERTY

3The Subject Property is located at the corner of Frederick Street and Gordon Avenue, east of the downtown area of the City. The lot area is 2729 square meter (“m²”), with approximately 53.1 m of frontage onto Frederick Street and 57.6 m of frontage along Gordon Avenue. Currently existing are two buildings and one accessory structure with existing vegetation along the front and flankage of the lot lines.

4The building at 234 Frederick Street is a two-storey ‘Queen Anne’-style residence that has been converted to an office building and is heritage designated under Part IV of the Ontario Heritage Act by Designated By-Law No. 90-162. Along the western boundary is an asphalt driveway providing access to a surface parking area to the rear.

5240 Frederick Street is a two-and-a-half-storey building in the same style that contains an existing freestanding garage and has a driveway off of Gordon Avenue, which leads to a large surface gravel parking area to the rear. This portion of the Subject Property is listed as non-designated property of cultural heritage value or interest in the City of Kitchener’s Municipal Heritage Register. Specific to this portion of the Subject Property, there also exists a 3 m-tall cedar hedge along the northern property boundary and a large conifer in the northwest corner.

6The Subject Property is located within the Central Frederick Neighbourhood, in close proximity to the downtown area of the City being 120 m east of the limit of the designated Urban Growth Centre.

7The Subject Property is located in close proximity to a range of residential, commercial, and institutional uses along the Frederick Street corridor. Adjacent to the Subject Property is 250 Frederick Street, a 16-storey apartment building. Northeast is a three-storey apartment building at 50 Gordon Avenue. Along Frederick Street itself, there are several businesses located in converted dwellings.

8Within 750 m at the intersection of Duke and Frederick Street, there is public transportation in the form of the Regional Light Rail Transit (ION) station stop.

9To the north of the Subject Property is generally compromised of single detached dwellings and duplexed dwellings, with the majority of homes being constructed in the early 1900s. The street immediately north is Clarence Avenue with a number of houses built close to the property line.

COMMITTEE OF ADJUSTMENT DECISION

10In order to redevelop the Subject Property as proposed, the Applicant requires the following minor variances:

1. Permit a rear yard of 5.27 metres (“m”) whereas a rear yard setback of 7.5 m is required;
2. Permit a building height of 14.5 m, whereas a maximum height of 12.2 m is permitted;
3. Permit relief from the parking requirements of the Zoning By-Law to: a. Require 1.0 space per residential unit, inclusive of visitor parking (whereas 1.25 spaces per unit are required); b. Require 1 space per 65 m² for office and non-residential uses within the existing heritage building at 234 Frederick Street (whereas 1 space per 33 m² is required); and, c. Allow for the use of up to 50% of the office/non-residential parking stalls for visitor parking purposes.

11The Applicant proposes to consolidate the Subject Property to include the following:

1. Retention of both existing primary buildings and the removal of the detached garage structure;
2. Addition of a new four-storey apartment building behind the existing building on the 240 Frederick Street portion of the Subject Property;
3. A total of 35 residential units, 32 of which will be within the new apartment building and three within the existing 240 Frederick Street;
4. A total of 42 parking stalls, of which seven will be surface parking spaces, and the remaining 36 within the new apartment building to be provided in a vertical parking stacker system; and,
5. A consolidated driveway access west of the existing 234 Frederick Street building.

12The proposed outdoor amenity spaces include:

1. A rooftop patio area on the east side of the roof, facing Gordon Street;
2. A green roof on the west side of the roof;
3. A landscaped courtyard area between the two existing buildings;
4. A private patio space for the at-grade dwelling unit on the first level; and,
5. Private balconies for the majority of the above-grading units on the second through fourth floors with no balconies on the western side to minimize overlook onto adjacent lands.

13With the addition of the apartment building, 32 residential dwellings are proposed to be added to the Subject Property, in addition to the three existing residential units at 240 Frederick Street for an overall total of 35 residential units, as well as the converted office space at 234 Frederick Street.

14On April 19, 2022, the CoA refused the application for a minor variance on the basis that the variances requested were not minor, the application was not desirable or appropriate for the development of the property, and the general intent of the ZBL and the City of Kitchener Official Plan (“OP”) would not be maintained.

15The Applicant appealed the decision of the CoA on the basis that the variances requested met the statutory test.

Parties and evidence

16The Applicant attended the hearing with counsel on their behalf as well as David Galbraith, a land use planning witness. Mr. Galbraith was qualified in the area of land use planning and was the sole witness for the hearing.

17The City attended the hearing but notified the Tribunal that they would not be taking a position.

18The Tribunal received seven Party status requests from the following individuals in advance of the hearing:

1. Charles Alexander;
2. Eric Ellis;
3. Gary and Sheri Pratt;
4. Gary Vannatter;
5. Paul McIntyre Royston;
6. Thompson Tran, and
7. Yvonne Ip.

19Having reviewed the requests, the Tribunal determined that the requests for status were more in line with the responsibility of a Participant; hence, the individuals were granted Participant status with assurance that the issues raised would be addressed in the course of the hearing.

20The Applicant submitted the following exhibits into evidence:

1. Witness Statement of David Galbraith;
2. Appellant Document Book;
3. Appellant Visual Evidence Book; and,
4. Corrected Region of Waterloo Plan Schedules.

APPLICANT’s position and [Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

21When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Planning Act (“Act”), to determine if the requested variance:

1. Maintains the general intent and purpose of the official plan;
2. Maintains the general intent and purpose of the zoning by-law;
3. Is desirable for the appropriate development or use of the land; and,
4. Is minor in nature.

All four elements must be satisfied.

22In addition, consideration must be given to matters of Provincial interest pursuant to s. 2 of the Act, as well as consistency with the Provincial Policy Statement (“PPS”) and the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”)

23Based upon the uncontested evidence of Mr. Galbraith, as well as the City’s staff report supporting the application, the Tribunal concluded that the proposed minor variances satisfied the necessary statutory and planning instrument requirements.

POLICY ANALYSIS

Provincial Policy Statement

24The proposed development satisfies the requirements of the PPS as the Subject Property is located within the City’s settlement area. The PPS encourages focusing growth and development in such settlement areas. The increase in density from the existing use is in keeping with the direction to establish and implement minimum targets for intensification and redevelopment within built-up areas based on local conditions. Mr. Galbraith opined that the OP directs new residential development to occur in the Built-Up area to count towards the Region of Waterloo (“Region”) minimum annual residential intensification target of 45%.

25The proposed development would aid the Province in its goal to accommodate residential growth for a minimum of 15 years, as well as the need for a mix of housing options and densities.

26The PPS also provides direction with regards to cultural heritage. Both of the existing buildings on the Subject Property are considered significant built heritage resources based on the findings of a Heritage Impact Study and are being retained as part of the proposed development.

27Based on Mr. Galbraith’s review of the PPS, the Tribunal has concluded that the proposed minor variances are consistent with the PPS.

Growth Plan

28The Growth Plan sets out guiding principles that support context sensitive intensification, make use of existing infrastructure and provide for the introduction of compatible low-density housing options.

29Keeping with the PPS, the Growth Plan encourages growth in settlement areas with a focus on delineated built-up areas, locations with existing or planned transit, and areas with existing or planned public service facilities.

30Mr. Galbraith demonstrated to the Tribunal that the proposed development is located in an area in conforming with the direction of the Growth Plan as the location is within a built-up area, on a regional road (Frederick Street), and within 750 m of a major transit station.

31The Tribunal concludes that the proposed minor variances conform with the Growth Plan.

Matters of Provincial Interest

32The proposed development has adequate consideration for matters of Provincial interest as it, as previously mentioned, promotes the conservation of culturally significant resources through the retention of the existing two buildings on the Subject Property.

33As well as, the proposed development has regard for the promotion of built form as the development integrates existing heritage resources, as well as implements thoughtful design by maintaining the existing landscape, provides amenity space while avoiding overlook onto the Clarence Place by the balcony, and minimizes of windows along the western façade.

34The Tribunal finds that the proposed development has regard for matters of provincial interest.

Official Plans

35The Tribunal considered the following planning instruments:

1. Region of Waterloo Official Plan (“Region OP”)
2. City of Kitchener Official Plan (“City OP”)
3. Central Frederick Secondary Plan (“Secondary Plan”)
4. Zoning By-Law 85-1
5. City of Kitchener Urban Design Manual (“UDM”)

Region OP

36Mr. Galbraith stated that the Region OP directs the majority of new growth to the built-up area, supports transit-oriented development goals, maximizes the use of existing infrastructure, supports complete communities through the introduction of higher density forms, and respects the scale and character of the area by providing compatible development complementary to the existing conditions of the area.

37As previously discussed, the proposed development is a well-situated area for growth, near public transit, and would represent an increase in density for the settlement area. The development itself is compatible with the surrounding area, as is discussed below.

City OP

38Mr. Galbraith provided testimony stating the primary purpose of the City OP is to guide growth and development for the City to the year 2031, establish an urban structure and land use framework for the City, and provide guidelines to evaluate the appropriateness of development. The vision is to “build an innovative, vibrant, attractive, safe, complete, and healthy community that contributes to an exceptional quality of life.”

39The City OP encourages residential intensification and/or redevelopment, including adaptive re-use and infill opportunities in order to respond to changing housing needs and as a cost-effective means to reduce infrastructure and servicing cost by minimizing land consumption and making better use of existing community infrastructure. Mr. Galbraith asserted that the proposed development is a good example of such encouraged redevelopment as it provides intensification through infill.

40Policies, in regard to the requirement of a site plan and related documents, ensure compatibility with the existing built form and community character of such established neighbourhoods and minimize adverse impacts. The Applicant has submitted plans to City staff and received comments through the process. In connection with the comments, the Applicant revised its original design to reduce the overlook onto adjacent properties to the west through the removal of private balconies on the western façade, as well as the amenity rooftop on the eastern half of the rooftop as opposed to the west or north side of the Subject Property.

41The policies of the City OP also provide direction where a minor variance is proposed in support of intensification. Direction is to ensure appropriate massing and scale compatible with community character. Mr. Galbraith provided evidence that there are developments of similar or greater massing and scale in the neighbourhood including the 16-storey apartment building immediately to the east.

42Additions and modifications to existing buildings are recommended to be directed to the rear yard. The proposed development situates the four-storey apartment at the rear of the Subject Property.

43It is the opinion of Mr. Galbraith that the proposed development is in conformity with the directions set out in the City OP and are appropriate within the context of the development.

Secondary Plan

44The Subject Property is located within the Central Frederick Neighbourhood, therefore subject to the Secondary Plan, which designates the Subject Property Low Density Commercial Residential. Policy direction for this land use provides for a range of residential and office uses, with consideration for traffic operation and scale, ensuring that such development is in keeping with the community’s present scale of development.

45The Applicant is proposing that the use of the Subject Property be multiple dwellings, triplex multiple dwellings, and office use, all of which are permitted within the Secondary Plan.

46In terms of limits on development, the Secondary Plan provides that such developments should not exceed a floor space ratio (“FSR”) of 1.33, which the proposed development does not exceed as 1.31 is proposed. Further building heights are to be limited to 12.2 m with the purpose being to encourage stability and promote a level of confidence in both commercial and residential owners. The proposed development exceeds the limit as it proposed a building height of 14.5 m, which Mr. Galbraith opines is a modest increase and will not destabilize the community and will continue to respect the role of the downtown and the scale and use of the adjacent residential area. The Secondary Plan also directs vehicular access from Frederick Street and encourages shared driveway use to minimize access points on the street. The proposed development will involve one driveway access for the four-storey apartment, as well as the two existing buildings.

Zoning By-Law

47The Subject Property is zoned Commercial Residential One (CR-1) within the ZBL and is subject to Special Provisions 114R and 148U. The CR-1 zoning permits multiple dwellings as well as offices, as is proposed. Special Provision 148U removes uses irrelevant in this matter, and 114R establishes site-specific regulations limiting the height of new buildings to 12.2 m and the maximum floor space to 1.33 m² with no more than 0.33 m² being devoted to commercial uses.

48The proposed development does not conform to the minimum yard requirement of 5.2 m, maximum building height of 14.5 m, and parking requirement of 36 residential spaces and six office spaces.

City of Kitchener Urban Design Manual – Mid Rise Buildings

49The UDM applies to the design of buildings between four and eight storeys to supplement the regulations of the ZBL and provide direction for the massing/scale of new buildings, compatibility with existing areas, sustainability-related matters, building components, heritage conservation, and site functionality among other matters. Two specific guidelines applicable in this matter are related to height recommendation and physical separation.

50The guidelines encourage taller ground floors, recommending a height of 4.5 m where retail or similar uses are proposed, as well as for residential uses to support conversion to other uses. The Applicant asserted that this direction is a factor in its decision to request the 14.5 m building height as opposed to the 12.2 m ZBL requirement. Mr. Galbraith opined that the additional building height responds to the design direction of the UDM.

51The UDM sets out a formula to direct physical separation, multiplying the building’s height by its length and dividing it by 200. Based on the formula, the recommended separation for the proposed development would be 1.95 m. It is the opinion of Mr. Galbraith that the formula recognizes that appropriate separation can vary depending on the height and massing of a development, the taller the building, and the greater the physical separation. Based on this, Mr. Galbraith opines that the proposed minor variance to reduce the rear yard setback to 5.27 m from the required 7.5 m is an adequate setback.

APPLICATION

Minor Variance 1 – Rear Yard Setback Reduction

52It is the opinion of Mr. Galbraith that Minor Variance 1 maintains the general intent and purpose of the Region OP, City OP, and Secondary Plan.

53The proposed development’s use is permitted within the Secondary Plan’s designated use of Low Density Commercial Residential, allowing to conserve land and maintain the existing character of the area.

54Both the Region OP and City OP place a strong emphasis on the conservation of cultural heritage resources, such as the two existing buildings at the Subject Property. The proposed setback reduction allows for desirable development while maintaining the heritage resources. The Heritage Impact Study prepared for the Subject Property recommends that the foundations of the new building be kept separate from the existing 240 Frederick Street in order to protect the existing foundation. Original designs submitted to the City had contemplated connecting the new building with existing structures. The reduced rear yard setbacks allow for the development to proceed while protecting the heritage resources. It is the Tribunal’s finding that Minor Variance 1 maintains the general intent and purpose of the Region OP, City OP, and Secondary Plan.

55The ZBL requires a rear yard setback of 7.5 m. The purpose of such setback is generally to provide space for recreation and amenity, appropriate separation between buildings, and minimize impacts on shadowing and privacy.

56The rear of the Subject Property is not proposed to be used for outdoor amenity, rather it is proposed to be located at the front, between the two existing buildings as well as the rooftop. In regard to appropriate separation between buildings, as previously mentioned, the UDM provides guidance on separation, which the proposed development achieves. It is the Tribunal’s finding that Minor Variance 1 maintains the general intent and purpose of the ZBL.

57The Tribunal agrees with the findings of Mr. Galbraith that Minor Variance 1 is a desirable and appropriate development. The policies and directions within the City OP and ZBL contemplate and encourage appropriate infilling, such as the proposed development. The rear yard setback is specifically desirable as it allows for the preservation of heritage resources.

58The Tribunal also finds that Minor Variance 1 is minor in nature as the proposed relief is minor considering the direction of the UDM, as well as due to the Subject Property’s location as a corner lot, and due to the rear yard not serving a typical intended function. Further, the retention of existing vegetation along the north of the Subject Property will mitigate the impact.

59As a result of the unrefuted testimony of Mr. Galbraith, the Tribunal concludes that the Minor Variance sought by the Applicant in regards to rear yard setback reduction meets all tests as outlined in s. 45(1) of the Act.

Minor Variance 2 – Increased Building Height

60Mr. Galbraith provided the expert opinion that Minor Variance 2 satisfies the tests for minor variance.

61As previously stated, the zoning applicable to the Subject Property limits the building height to 12.2 m. This corresponds to the equivalent of four storeys, each 3.05 m in height with 3 m being a common floor to floor height for apartment buildings. As a result, Mr. Galbraith opined that the Secondary Plan and ZBL already contemplate buildings of up to four storeys, such as the proposed development. The variance from the ZBL is not in order to increase the number of floors or density of the building itself, but rather to increase the storeys themselves for the purpose of better design.

62Direction from the UDM encourages taller ground floor heights of 4.5 m. The purpose of this is in order to delineate the base building from the upper floors and provide a more engaging interface between the building and the public realm. In addition, the increased ground floor height would allow for the accommodation of the proposed parking stacker system, which would also be 4.5 m.

63The City uses FSR as a primary metric in determining the appropriate massing of development. The proposed development would result in an FSR in compliance.

64The uncontested opinion of Mr. Galbraith is that the proposed development maintains the general intent and purpose of both the Zoning By-Law and Official Plan, as the modest increase in height will not destabilize the community, and the pragmatic use of increased height.

65Mr. Galbraith further opined that the proposed development is also desirable for the appropriate development and use of the land and is minor in nature.

66As noted, the additional building height is in response to the urban design direction of the City, which encourages taller ground floor height, and the design implications of the proposed parking stackers.

67The building heights proposed are compatible with the building heights of adjacent developments, most notably the 16-storey apartment building located across Gordon Avenue from the Subject Property.

68Further, the additional height is negligible in the context of the surrounding neighbourhood and therefore will not result in a development that is incongruent with the context of its surroundings.

69A shadow study prepared in connection with the application demonstrates that the shadow impacts of the proposed development are anticipated to be negligible, given the alignment of properties with minimal shadow casts on the rear yards of adjacent homes.

70Based on the foregoing, the Tribunal finds that the additional building height is minor in nature, desirable for the use of the Subject Property and will not cause adverse impacts.

71The Tribunal concludes, on the basis of the uncontested evidence of Mr. Galbraith, that the Minor Variance sought by the Applicant in regards to increased building height meets all tests as outlined in s. 45(1) of the Act.

Minor Variance 3 – Proposed Parking Ratios

72As detailed previously, 42 parking stalls are proposed, of which 36 will be provided in parking stacker units. This will equate to a residential parking rate of 1.02 spaces per unit, whereas 1.25 are required.

73In addition, six surface parking stalls are proposed for office use within 234 Frederick Street, with three of the stalls being available for visitor parking. This would equate to a ratio of one space per 65 m², whereas 33 m² is required.

74Mr. Galbraith opines that the proposed variance will maintain the general intent and purpose of the Official Plan and Zoning By-Law.

75The City OP provides that “the City may consider adjustments to parking requirements for properties within an area or areas, where the city is satisfied that adequate alternative parking facilities are available, where developments adopt transportation demand management (TDM) measures or where sufficient transit exists or is to be provided.”

76The Subject Property is located within close proximity of existing transit services, making transit a viable and readily available mode of transportation.

77Regarding the ZBL, the purpose of parking regulations is to ensure adequate parking is provided to meet the needs of both residential and non-residential uses. Mr. Galbraith testified that the parking justification report prepared on behalf of the Appellant, indicates that the proposed parking is anticipated to be adequate for the proposed development given the proximity of transit to the Subject Property.

78Based on the ZBL requirement of 1.25 spaces for residential use and one space per 28 m² of gross floor are for office use, the proposed development would require 56 parking stalls.

79Mr. Galbraith noted that the City is currently undertaking a review of its ZBL and in 2019 adopted new parking rates requiring a total of one space per unit for visitor and one space per 33 m². Although the ZBL is not yet complete, the proposed number of parking spaces would be a negligible increase from the new parking rates.

80Based on the foregoing conclusions, the Tribunal concludes that the proposed variance meets the general intent and purpose of the Zoning By-Law and Official Plan.

81The variance is also desirable and appropriate for the development of the Subject Property as it is located in close proximity to adequate transit and within walking distance of the downtown core of the City.

82Mr. Galbraith opined that the proposed parking rates are appropriate and reflective of the transit-oriented development and active transportation goals of the community.

83The proposed parking rates are also consistent with rates of other developments in the City similarly located in proximity to high-order transit. This includes the approved nearby development at 181 Frederick Street, where a parking ratio of one space per residential unit was approved by way of a minor variance application.

84Based on the evidence provided, the variance is also minor in nature. The parking justification study indicates that the parking provided is anticipated to be adequate. The shared use of the six surface lot stalls for office and visitor use recognizes that the parking needs of users differ throughout the day and maximizes the use of parking to satisfy the anticipated demand.

85The Tribunal concludes that the Minor Variance sought by the Applicant in regard to parking ratios meets all tests as outlined in s. 45(1) of the Act, as demonstrated by Mr. Galbraith.

CONCLUSION

86The Tribunal concludes that the proposed minor variances and development are appropriate for the Subject Property and represent good planning.

87The Appellant has demonstrated through the use of uncontested evidence that the application has regard for matters of provincial interest as set out in the Act, is consistent with the PPS and Growth Plan, conforms with the Region OP, and maintains the general intent and purpose of the City OP, Secondary Plan, and the ZBL. The requested variances are minor in nature and are desirable for the appropriate use and development of the Subject Property. The proposed building is compatible with the existing neighborhood and will not result in undue adverse impacts.

ORDER

88THE TRIBUNAL ORDERS that the appeal is allowed and the variances to Zoning By-law No. 85-1 of the City of Kitchener, as outlined in paragraph 10 above, are authorized.

“S. Mann”

S. Mann

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.