1000446086 Ontario Inc. v. Kitchener (City), 2023 CanLII 92332

du territoire

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

ISSUE DATE: October 05, 2023

CASE NO(S).: OLT-23-000431

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

Applicant and Appellant: 1000446086 Ontario Inc.

Subject: Consent

Description: To facilitate the construction of two single detached dwellings

Reference Number: B 2023-018

Property Address: 299 Ottawa Street North

Municipality/UT: Kitchener/ Waterloo (Region)

OLT Case No.: OLT-23-000431

OLT Lead Case No.: OLT-23-000431

OLT Case Name: 1000446086 Ontario Inc. v. Kitchener (City)

Heard: September 13, 2023

APPEARANCES:

Parties

Counsel

1000446086 Ontario Inc. (“Applicant/Appellant”)

Jennifer Meader Jessica De Marinis

City of Kitchener

Katherine Hughes

Region of Waterloo

Fiona McCrea

MEMORANDUM OF ORAL DECISION DELIVERED BY J. DENYES AND D. CHIPMAN ON SEPTEMBER 13, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision is related to the hearing of an appeal filed by 1000446086 Ontario Inc. (“Applicant/Appellant”) for relief against the City of Kitchener’s Committee of Adjustment (the “COA”) decision to refuse an application for consent to sever the Subject Property pursuant to s. 53(19) of the Planning Act (“Act”).

2The Subject Property is municipally known as 299 Ottawa Street North in the City of Kitchener (“Subject Property”) in the Region of Waterloo.

3The Applicant is proposing to sever the Subject Property to create one new lot and one retained lot, each with 10.898 metres (“m”) of frontage, with depths ranging between 42.8 m and 43.7 m, and an area of 471 and 481 square metres (“m²”), respectively. The existing dwelling on the Subject Property is to be demolished. Each of the proposed lots are to be developed with a single detached dwelling.

4Katherine Hughes on behalf of the City, and Fiona McCrea on behalf of the Region, were present for observation and monitoring purposes to ensure that their respective concerns, which are included within the set conditions were addressed.

5This, being a hearing de novo, the Panel gave consideration to the consent and the proposed Conditions of Consent.

PLANNING CONTEXT

6The Tribunal heard from two uncontested expert witnesses: Mr. Hugh Handy, Vice-President of GSP Group who was retained by the Applicant, to provide expert opinion evidence in the area of land use planning and, Mr. Joshua Graham, a transportation planning expert for the Region of Waterloo, who appeared under summons. Both expert witnesses were affirmed and qualified by the Panel.

7Mr. Handy testified that the surrounding land uses of the proposed development are compatible with maintaining the existing pattern of housing on the block. In addition, it supports ongoing housing stock, minimizes land consumption, achieves growth management goals, and intensification targets with an infill project and a high standard urban design Street-facing façade.

8Mr. Handy advised the Tribunal of the following:

(a) The Region does not have a concern relating to the addition of the proposed driveway, but requires a Regional Access Permit to be applied for as a condition of approval;

(b) The Ministry of Transportation of Ontario (“MTO”) supports the proposed consent with the understanding that the owner shall make an application for MTO building and land use permits;

(c) The City’s Environmental Planning notes that there are no natural heritage features or functions on the property. However, there are existing trees which are subject to the City’s Tree Management Policy;

(d) The City’s Development Engineering Department have no concerns with the proposal development, but would require a Site Servicing Plan prior to issuance of a building permit;

(e) The City’s Transportation Services department have no concerns;

(f) The City’s Park Department noted the requirement of Parkland dedication cash-in-lieu; and

(g) Planning Staff required a Planning Justification Study to review the conformity of the proposed development with relevant Provincial and City Policy frameworks.

9Mr. Handy reviewed s. 2 of the Act, which identifies the orderly development of safe and healthy communities and the appropriate location of growth and development. He stated that the proposed application before the Tribunal satisfies the criteria to be met under s. 51(24) of the Act. He further testified that s. 53(1) of the Act is also met as being a proper and orderly development of this property.

10Mr. Handy summarized his evidence that the proposed application has regard to and is consistent with s. 1.4.3(b) of the Provincial Policy Statement (“PPS”), which promotes all types of residential intensification, and sets out a policy framework for sustainable healthy, liveable and safe communities by contributing to the overall intensification of the community and efficiently utilizes land with access to available municipal infrastructure, public transit and services/amenities located within the municipality.

11Mr. Handy testified that this application conforms to the Growth Plan for the Greater Golden Horseshoe as the Subject Property is located within a Built-up area as directed by s. 2.2.1.2. The proposed severed lots are located close to existing transit, and within an area with existing public service facilities. Noting through the use of photos, Mr. Handy demonstrated that there are existing recreational facilities within walking distance.

12Mr. Handy opined that the application conforms to the Region of Waterloo’s Official Plan (“ROP”), stating Urban Area policies of the ROP identifies that the focus of the Region’s future growth will be within the Urban Area. The subject lands are designated Built-Up Area in the ROP. Regional policies require Area Municipalities to plan for a range of housing in terms of form, tenure, density and affordability to satisfy the various physical, social, economic and personal support needs of current and future residents. He informed the Tribunal that the Region has indicated that they have no objections to the proposed consent subject to a condition for an access permit.

13Mr. Handy stated the ROP and the City of Kitchener Official Plan, (“OP”) are aligned on accommodating growth through an appropriate variety and mix of housing types and styles, and affordability. He illustrated that the Subject Property is one of the largest properties on the block and is currently underutilized with an undersized detached dwelling. The application will provide for modest intensification of the Subject Property while respecting the scale, physical character and context of the established neighbourhood. He emphasized that the redevelopment of an underutilized property will contribute to the forecasted residential population growth for the Region of Waterloo and the City.

14The Subject Property is zoned within RES-4 which he explained permits a range of low density single detached homes that include fourplexes. Single detached homes are permitted in the zone with a minimum lot area of 235 m², minimum lot width of 9 m, minimum front yard setback of 14 m, minimum side yard setback of 1.2 m, and minimum rear yard setback of 7.5 m. The zone also permits a maximum lot coverage of 55%, and maximum building height of 10.898 m or three storeys. The existing dwelling on the Subject Property is to be demolished and each of the proposed lots are to be developed with a single detached dwelling.

15Both the severed and retained lots will have a lot width of 10.989 m, front yard setbacks of 14 m, side yard setbacks of 1.2 m, and rear yard setbacks of 7.6 m. Both new single detached homes will be two storeys and 9 m in height. The lot area of the retained will be 481 m² with a lot coverage of 40%. The lot area of the severed will be 471 m² with a lot coverage of 39%. Mr. Handy testified that the proposed development is consistent with all zoning regulations within the RES-4 zone.

16Mr. Handy provided the Panel with a detailed overview of each of the 21 conditions that the Tribunal is being asked to consider. (Attachment 1)

17Mr. Handy concluded that the application will provide for modest intensification of the Subject Property while respecting the scale, physical character, and context of the established neighbourhood, and, in his opinion, represents good planning.

18The Panel also heard from Mr. Graham, Transportation Planner for the Region who provided evidence regarding “right in/right out” turning movements, and its significance relating to the proximity of the Subject Property to the signalized intersection at Hwy 7.

19Mr. Graham testified that there has been no collision history at the intersection, and that the Region is seeking a dedicated road widening of approximately 3.05 m (10 feet) along the entire property frontage on Ottawa Street North to comply with the ROP designated road width of 30.48 m. The Panel was informed that access to the street will be a right-in, right-out-only access, due to the current concrete median on Ottawa Street North. The Panel heard the current speed limit in this area is 50 kilometers per hour.

FINDINGS

20The Panel is satisfied that in granting the consent in conjunction with the identified conditions as noted in the Order below, the use of an underutilized property will allow for gentle infill intensification on lands that have access to municipal services and infrastructure. Furthermore, the area currently provides for access to recreational, educational, and established transit all within walking distance of the Subject Property.

21The Panel is satisfied that the conditions as set out, will ensure a development that adheres to both municipal and Regional interest while promoting Provincial objectives of increased housing creation.

ORDER

22THE TRIBUNAL ORDERS that the appeal is allowed, and the provisional consent is to be given subject to the Conditions set out in Attachment 1 to this Order.

“J. Denyes”

J. DENYES

MEMBER

“D. Chipman”

D. CHIPMAN

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

List of Conditions – 299 Ottawa St North

1. That the Owner’s solicitor shall provide draft transfer documents and associated fees for the Certificate of Official to the satisfaction of the Secretary-Treasurer and City Solicitor, if required.

2. That the Owner shall obtain a tax certificate from the City of Kitchener to verify that there are no outstanding taxes on the subject property(ies) to the satisfaction of the City’s Revenue Division.

3. That the owner provides 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.

4. That the Owner obtains Demolition Control Approval, in accordance with the City’s Demolition Control By-law, to the satisfaction of the City’s Director of Planning.

5. That the Owner obtains a Demolition Permit, for the existing single detached dwelling proposed to be demolished, to the satisfaction of the Chief Building Official, and removes the existing dwelling prior to deed endorsement.

6. To make arrangements financial or otherwise for the relocation of any existing City-owned street furniture, transit shelters, signs, hydrants, utility poles, wires or lines, as required, to the satisfaction of the appropriate City department.

7. That the Owner provides a servicing plan showing outlets to the municipal servicing system to the satisfaction of the Director of Engineering Services.

8. That the Owner submit a Development Asset Drawing (digital AutoCAD) for the site (servicing, SWM etc.) with corresponding layer names and asset information to the satisfaction of the City’s Director of Engineering Services, prior to deed endorsement.

9. That the Owner makes financial arrangements for the installation of any new service connections to the severed and/or retained lands to the satisfaction of the City's Director of Engineering Services.

10. That any new driveways are to be built to City of Kitchener standards at the Owner’s expense prior to occupancy of the building to the satisfaction of the City’s Director of Engineering Services.

11. That the Owner provides confirmation that the basement elevation can be drained by gravity to the street sewers to the satisfaction of the City’s Director of Engineering Services. If this is not the case, then the owner will need to pump the sewage via a pump and forcemain to the property line and have a gravity sewer from the property line to the street to the satisfaction of the City’s Director of Engineering Services.

12. That the owner pay to the City of Kitchener a cash-in-lieu contribution for park dedication of $11,862.00.

13. That at the sole option of the City’s Director of Planning, the Owner shall enter into an agreement with the City of Kitchener, to be prepared by the City Solicitor, to the satisfaction of the City Solicitor and the City’s Director of Planning, 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 Supervisor, Site Plans, and where necessary, implemented prior to any grading, servicing, tree removal or the issuance of building permits. Such plans shall include, among other matters, the identification of a proposed building envelope/work zone, a landscaped area and the vegetation to be preserved. If necessary, the plan shall include required mitigation and or compensation measures.

b) The owner further agrees to implement the approved plan. No changes to the said plan shall be granted except with the prior approval of the City’s Supervisor, Site Plans.

c) That the owner shall prepare building elevation drawings for the severed and retained lands, which shall be in general conformity with the elevation drawings attached to Report DSD-2023-176, to the satisfaction of the City’s Director of Planning. Said drawings shall be implemented through the Building Permit process.

14. That, prior to final approval, the applicant submits the Consent Application Review Fee of $350.00 to the Region of Waterloo.

15. That, prior to final approval, a dedicated road widening of approximately 3.05m (10 feet), free of encumbrances and at owner/applicant’s cost, along the entire property frontage of the severed and retained lands on Ottawa Street N. shall be conveyed to the Region to comply with the Regional Official Plan (ROP) designated road width of 30.48m, all to the satisfaction of the Regional Commissioner of Planning, Development and Legislative Services.

16. That, prior to final approval, the owner/applicant obtain Regional Road Access Permits for both the severed and retained lands from the Region of Waterloo.

17. That prior to final approval, the owner/applicant obtain Municipal Consent and Work Permit from the Regional Municipality of Waterloo for any road work within the Ottawa Street N. right-of-way, to the satisfaction of the Regional Commissioner of Planning, Development and Legislative Services.

18. That, prior to final approval, the owner/applicant submit a detailed grading plan for review and approval. The plan must show the grades and slopes on the lands abutting the Regional road right-of-way. It must show the existing and future property lines and the grades along the proposed access(es). All to the satisfaction of the Regional Commissioner of Planning, Development and Legislative Services.

19. That prior to final approval, the owner/applicant complete a detailed noise study to assess impacts of road traffic noise and attenuation measures required for the severed and retained lands, to the satisfaction of the Regional Commissioner of Planning, Development and Legislative Services.

20. That prior to final approval, the owner/applicant enter into a registered agreement with the Regional Municipality of Waterloo, to the satisfaction of the Regional Commissioner of Planning, Development and Legislative Services, for the severed and retained lands to provide for the following:

i) Implementation of the recommendations of the accepted Noise Study required in Condition 19 above; and

ii) To prohibit the use of geothermal energy systems.

21. That prior to final approval, the property owner shall make the necessary applications for MTO Building and Land use permit(s).