Brigade Holdings Corporation and Vive Development Corporation et al. v. Kitchener (City), 2024 CanLII 126182

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 09, 2024

CASE NO(S).: OLT-24-000546

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Brigade Holdings Corporation and Vive Development Corporation

Appellant: Charles Preston Kitchener Holdings Inc. and Vive Development Corporation

Subject: City of Kitchener Protected Major Transit Station Area By-law No. 2024-065

Description: To implement an updated zoning framework for Protected Major Transit Station Areas within the City of Kitchener

Reference Number: By-law No. 2024-065

Property Address: All properties within Protected Major Transit Station Areas

Municipality/UT: Kitchener / Waterloo

OLT Case No.: OLT-24-000546

OLT Lead Case No.: OLT-24-000546

OLT Case Name: Brigade Holdings Corporation and Vive Development Corporation et al. v. Kitchener (City)

PROCEEDING COMMENCED UNDER subsection 34 (25) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Request by: City of Kitchener

Request for: Request for Dismissal Without a Hearing

Heard: September 13, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Brigade Holdings Corporation and Vive Development Corporation	Kim Mullins Mithea Murugesu
Charles Preston Kitchener Holdings Inc. and Vive Development Corporation	Kim Mullins Mithea Murugusu
City of Kitchener	Alex Ciccone Katherine Hughes

DECISION DELIVERED BY G.A. CROSER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On August 18, 2022, the Region of Waterloo (“Region”) passed an amendment to its Regional Official Plan (“ROPA 6”) which, amongst other things, identified areas surrounding and including the existing ION light rail transit stations as Protected Major Transit Station Areas (“PMTSAs”). ROPA 6 established PMTSAs in municipalities within the Region, including the City of Kitchener (“City”).

2Following the passage of ROPA 6, and pursuant to Section (s.) 16(15) of the Planning Act (“Act”), the City passed By-law 2024-062 (“OPA 49”) which amended the City of Kitchener Official Plan (“City OP”) to implement ROPA 6 policies with respect to PMTSAs. The City then passed By-law 2024-065 (the “PMTSA By-law”) which amended the City of Kitchener Comprehensive Zoning By-law 2019-051 (“ZBL”) to implement OPA 49.

3Two appeals were filled with respect to the PMTSA By-law (collectively the “Appeals”). The first was filed by Brigade Holdings Corporation and Vive Development Corporation with respect to its property located at 79 Weber Street East (“Weber St. Appeal”). The second was filed by Charles Preston Kitchener Holdings Inc. and Vive Development Corporation, with respect to properties located at 698, 704 and 710 Charles Street East (“Charles St. Appeal). As the Appellants in both appeals were represented by the same legal team and for ease of reference, this Decision refers to the Appellants in a collective sense.

4The City took the position that the Appeals were not valid as they were attempting to appeal building height and density which, in its view, are protected from appeal pursuant to subsections 34(19.5) and (19.6) of the Act. The City sought an Administrative Order from the Tribunal dismissing the Appeals on the grounds that they were based on prohibited grounds. In response, the Tribunal scheduled this Motion to Dismiss (“Motion”) to consider the validity of the Appeals.

EXHIBITS

5The following exhibits were marked at the Motion:

1. Motion Record of the Corporation of the City of Kitchener
2. Responding Record of the Appellants Vive Development Corporation, et al.
3. Book of Authorities of Vive Development Corporation, et al.
4. Reply Motion Record of the Corporation of the City of Kitchener

PMTSA BY-LAW

6OPA 49 included the delineation of the City’s PMTSAs and established three (3) new land use categories, Strategic Growth Areas A, B and C, “to guide growth and change within these areas”. The PMTSA By-law introduced 4 new strategic growth area zone categories to implement OPA 49’s Strategic Growth Areas, these 4 zones apply exclusively within the City’s PMTSAs (collectively the “Zones”). Each zone has a maximum height provision. The purpose of the PMTSA By-law was to bring all properties within Protected Major Transit Station Areas into the ZBL by applying the new Strategic Growth Areas, and to implement an updated zoning framework for PMTSA areas.

7The City chose to regulate maximum densities throughout the PMTSAs through “carefully calibrated” built-form regulations and use Floor Space Ratios (FSRs) for defining minimum densities. In the City’s Staff Report, prepared by Adam Clark and John Zunic for the official plan and zoning By-law amendments (“Staff Report”), it was noted that this policy change, using built-form regulations for maximum densities, would “help unlock low-rise and mid-rise missing middle housing supply”, create flexibility for developers, and achieve the intensification minimums of the PMTSA.

Built-Form Regulations

8The Staff Report stated that the built-form regulations outlined in the PMTSA By-law, including building length and floor plate area maximums, as well as physical separation, “work in combination” to protect the privacy of new residents, ensure access to light for all units, limit shadow, wind and other impacts on existing and future nearby residents. Counsel for the City explained during oral evidence at the Motion to Dismiss (“Motion”) that the setbacks in the PMTSA By-law provide a 2-dimensional building envelope. This building envelope when combined with the regulations for height, length, maximum floor plate area and density, creates a 3-dimensional building envelope (“3D Envelope”). The City has utilized 3D Envelopes in the Zones to regulate density within the City’s PMTSAs rather than placing numerical values on maximum densities for each zone.

9At the Motion, the City’s evidence was that FSR did not work in complex areas nor in areas that were already built-up. Counsel for the City noted that the two PMTSAs in question were complex, with land parcels of all shapes and sizes, dimensions, and configurations. As such, the City’s view was that utilizing built-form regulations created more certainty around the scale and size of building forms than an FSR-based density approach. Counsel referred to these built-form regulations as creating, “when combined, the maximum build-out for development of any site located within a PMTSA.”

SUBJECT LANDS

10The subject site of the Weber St. Appeal is 79 Weber Street East (“Weber Lands”), which is located within the Queen and Frederick PMTSA. This site is designated Strategic Growth Area-B by OPA 49 and zoned SGA-2 in the PMTSA By-law, the latter includes a regulation that identifies a maximum building height of 8 storeys for lands zoned SGA-2.

11The lands for the Charles St. Appeal, being 698, 704 and 710 Charles Street East (“Charles Lands”), are located within the Borden PMTSA. These lands are designated Strategic Growth Area-C by OPA 49 and zoned SGA-3 in the PMTSA By-law, this zone includes a maximum building height limit of 28 storeys.

THE APPEALS

12To the Appellants, the PMTSA By-law is inconsistent with planning policies promoting efficient development and land use patterns, transit-supportive development, intensification, compact built-form and with provision of an appropriate mix and range of housing for all income groups, amongst others. The reasons for the Weber St. Appeal, as listed in its Notice of Appeal, are as follows:

1. Appendix A – Zoning Grid Schedule 120 of ZBA 2024-065 zones the Subject Lands SGA-2. The SGA- 2 zone does not reflect the development potential of the Subject Lands or the surrounding planned context. The Subject Lands should instead be zoned SGA-4.

2. Section 21 of ZBA 2024-065 introduces a new section 6.4.3 and Table 6-4 for Zoning Bylaw 2019-051. New Table 6-4 imposes detailed and prescriptive requirements for minimum lot width, minimum lot area, minimum setbacks, maximum building length, maximum floor plate area and physical separation. These built form requirements constrain design solutions and have the potential to increase the costs of construction, thereby limiting the Appellants’ ability to provide cost-effective, affordable housing.

13The Charles St. Appeal was based on the same reasoning:

1. Appendix A – Zoning Grid Schedule 143 of ZBA 2024-065 zones the Subject Lands SGA-3. The SGA- 3 zone does not reflect the development potential of the Subject Lands, which should instead be zoned SGA-4.

2. Section 21 of ZBA 2024-065 introduces a new section 6.5.2 and Table 6-5 for Zoning Bylaw 2019-051. New Table 6-5 imposes detailed and prescriptive requirements for minimum lot width, minimum lot area, minimum setbacks, maximum building length, maximum floor plate area and physical separation. These built form requirements constrain design solutions and have the potential to increase the costs of construction, thereby limiting the Appellants’ ability to provide cost-effective, affordable housing.

LEGISLATIVE FRAMEWORK

14Subsections 34 (19.5) and (19.6) of the Act state that there is no appeal in respect of part of a zoning by-law that establishes permitted uses, minimum or maximum density, or minimum or maximum height with respect to buildings and structures on lands in a PMTSA.

No appeal re protected major transit station area – permitted uses, etc.

(19.5) Despite subsections (19) and (19.3.1), and subject to subsections (19.6) to (19.9), there is no appeal in respect of,

(a) the parts of a by-law that establish permitted uses or the minimum or maximum densities with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15) or (16); or

(b) the parts of a by-law that establish minimum or maximum heights with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15) or (16). 2017, c. 23, Sched. 3, s. 10 (7); 2022, c. 21, Sched. 9, s. 8 (3).

Same, by-law of a lower-tier municipality

(19.6) Subsection (19.5) applies to a by-law of a lower-tier municipality that, for municipal purposes, forms part of an upper-tier municipality without planning responsibilities only if the lower-tier municipality’s official plan contains all of the policies described in subclauses 16 (16) (b) (i) and (ii) with respect to the protected major transit station area. 2017, c. 23, Sched. 3, s. 10 (7); 2022, c. 21, Sched. 9, s. 8 (4).

15For the sake of completeness, the references to subsection 16 (16) are as follows:

Same, upper-tier municipality

(16) The official plan of an upper-tier municipality with planning responsibilities may include policies that identify the area surrounding and including an existing or planned higher order transit station or stop as a protected major transit station area and that delineate the area’s boundaries, and if the official plan includes such policies it must also contain policies that,

(a) identify the minimum number of residents and jobs, collectively, per hectare that are planned to be accommodated within the area; and

(b) require official plans of the relevant lower-tier municipality or municipalities to include policies that,

(i) identify the authorized uses of land in the area and of buildings or structures on lands in the area; and

(ii) identify the minimum densities that are authorized with respect to buildings and structures on lands in the area.

LEGISLATIVE FRAMEWORK

16Section 34(25) of the Act states that the Tribunal may, on its own initiative or on the motion of any party (“Party”), dismiss all or part of an appeal without holding a hearing if any of the following apply:

Dismissal without hearing

(25) Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

i. the reasons set out in the notice of appeal do not disclose any apparent

land use planning ground upon which the Tribunal could allow all or part of

the appeal…

17While not specifically referenced by the Parties in their Motion materials, the Tribunal is also mindful of s.19 of the Ontario Land Tribunal Act (“OLT Act”) which includes the following provision:

Dismissal

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party

or on its own initiative, dismiss a proceeding without a hearing,

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success[.]

POSITION OF THE CITY OF KITCHENER

18The City stated that s.34(19.5) and (19.6) are not discretionary provisions within the Act. That s.34(19.5) states that there is “no appeal” with respect to parts of a by-law that establish permitted uses, minimum or maximum density, minimum or maximum height with respect to buildings and structures on lands in a Protected Major Transit Station area. Therefore, if the Tribunal finds that the Appeals fall within this category, the Tribunal must dismiss the Appeals.

Zoning/Mapping of the Weber Lands and Charles Lands

19It was the City’s submission that the “only effective difference” between the Weber Lands current zoning/mapping and that sought by the Weber St. Appeal was the regulation of maximum building height. The Affidavit of the City’s planner, John Zunic, opined that the current zoning of the Weber Subject Lands is SGA-2, was identical to the SGA-4 zoning sought by the Appellant, except for the regulation of maximum building height.

20The City submitted that to amend the Weber Lands zoning to SGA-4 would require redesignation of the site to Strategic Growth Area-C. This would require an official plan amendment and an amendment to the City’s OP was, as the City noted, not subject to this Appeal. At the Motion, Counsel for the Appellants acknowledged this and stated that they were formerly revising the Weber St. Appeal to request a change in zoning from SGA-2 to SGA-3. This amendment would conform to the in-effect land use designation applicable to the Weber Lands and would not require an appeal of the City OP.

21Counsel for the City in oral arguments argued that the revised ask for an SGA-3 zone instead of SGA-2 did not alter the fact that the Appellants were seeking to appeal density and height. The City pointed out that the only difference between SGA-2 and SGA-3 was building height and FSR (which controls minimum density).

22The City’s stance on the Charles St. Appeal, which also appealed its zoning/mapping schedule was identical to the Weber St. Appeal. This too was “fundamentally an appeal for an increase in maximum building height and relief from density regulations.” The City submitted that the regulations established through SGA-3 and SGA-4 were “nearly identical” except for building height – lands in SGA-4 have no maximum building height provision. Therefore, the City argued that the Charles St. Appeal should be dismissed as building height is a prohibited ground of appeal.

23The Appellants’ assertion that they sought different zone categories for the Weber Lands and Charles Lands and were not challenging the specific regulations on height or density, was, to the City, a falsehood. The City argued out that a change to the mapping of the lands in question created a change in the provisions of the PMTSA By-law that applied to the lands referenced in the mapping. In the case of both the Weber Lands and Charles Lands, a change in their respective mapping would result in changes to the provisions of the by-law that included the built-form regulations (the 3D envelopes) that were utilized by the City to establish minimum or maximum densities and heights within the respective PMTSAs.

Applicable built-form regulations for the Weber Lands and Charles Lands

24The City explained to the Tribunal that the PMTSA By-law regulated height and density with a number of tools, including the following:

i. Minimum lot width,

ii. Minimum lot area,

iii. Minimum front and exterior side yard setback,

iv. Minimum building base height, maximum building base height,

v. Minimum FSR,

vi. Maximum building height,

vii. Minimum street line ground floor building height,

viii. Minimum façade openings, minimum street line façade openings,

ix. Maximum floor plate area, and physical separation

25Counsel for the City, in oral arguments, submitted that the Act does not require PMTSAs to place a numerical value on density in order to protect it from appeal. The City’s view was that the wording of Subsection 34(19.5) and (19.6) was “left open” to recognize that there are a number of valid ways to regulate density. Counsel asserted that the 3D Envelopes were “specifically crafted” and that such regulations were necessary, in the City’s view, to control the “maximum build-out” on each lot within a PMTSA. The City’s stance was that the built-form regulations worked in combination to create the 3D Envelopes for each zone and as such, an appeal of these regulations was, in fact, an appeal against density and height.

POSITION OF THE APPELLANTS

26The Appellants argued that the City has incorrectly interpreted s. 34 (19.5) of the Act in that this provision does not insulate PMTSA by-laws from all appeals. Counsel for the Appellants referenced the “Notice of the Passing of a Zoning By-law” issued by the City for the PMTSA By-law which states that,

TAKE NOTICE that pursuant to subsections 34 (19.5) and 34 (19.6) of the Planning Act, there is no right to appeal this by-law subject to the requirements of the abovementioned subsections, except by the Minister of Municipal Affairs and Housing, because it gives effect to policies regarding Protected Major Transit Station Areas described in section 16(16) of the Planning Act. […]

27The Appellants also made the point that the City cannot insulate the PMTSA By-law from appeal by using performance standards to regulate density. Counsel for the Appellants emphasized that s. 34 (19.5) provides “the parts” of by-law that establish density cannot be appealed, and that the City was attempting to employ faulty logic in arguing that it is the entirety of the PMTSA By-law that is protected from appeal. The Appellants submitted that the scope of s.34(19.5) was “narrow” and, in any event, the Appeals were not challenging maximum height and maximum density.

Zoning/Mapping of the Weber Lands and Charles Lands

28It was the position of the Appellants that the Appeals sought to have different zone categories applied to the Weber Lands (SGA-2 to SGA-3) and Charles Lands (SGA-3 to SGA-4), and that these were requests for “mapping changes” and were not directly related to height or density. Rather, the Appellants submitted that its focus was on a consistent application of zones across the City. In the Appellants’ view, the existing zoning of the Weber Lands and Charles Lands did not align with the development potential for the lands in question or the surrounding planned context.

Applicable built-form regulations for the Weber Lands and Charles Lands

29The second aspect of the Appeals is against components of section 21 of the PMTSA By-law. The Appellants raised concerns over the City’s “bundling of the performance standards”, its overly prescriptive nature, and impacts on construction costs. To the Appellants, the use of the 3-D Envelope and corresponding built-form standards to regulate density was an attempt by the City to prevent appeals of the zoning by-law amendment.

30For the Weber Lands, the Appellants appealed s. 6.4.3 and Table 6-4 for PMTSA By-law. Table 6-4 sets out the built-form regulations for SGA-2 mapped lands:

31The Charles St. Appeal appealed section 6.5.2 and Table 6-5, which are also located within Section 21 of the PMTSA By-law:

32Counsel for the Appellants submitted in oral arguments that, while built-form regulations influence density, they do not directly determine density. The Appellants identified the key issue as being whether the above listed built-form regulations functionally or directly determine density. In the view of the Appellants, the 3D Envelopes used for SGA-2 and SGA-3 zones not only regulated height and density, but also other urban design related performance measures. The Appellants’ planner, Pierre Chauvin opined in their Affidavit evidence that the internal layout of a building, for example a 1 versus 3-bedroom unit as opposed to the building footprint or floorplate can affect the density of a development. As the number of units on any given floor can vary depending on how the internal demising walls are configured, this affects the overall density of the site in terms of units per hectare.

33The Appellants also raised objection to the built-form regulations as having a negative impact on construction efficiency and costs and sought more flexibility in the built-form regulations to permit larger floor plate and fewer stepbacks. Further, the Appellants raised the argument that the built-form regulations with respect to floor plate size and stepbacks would lead to higher costs and rental rates, ultimately impacting prospective tenants. The Tribunal notes that construction costs are not a valid land use planning ground; therefore, this Member has not included concerns with respect to building costs and profitability in their analysis of the Appeals.

CITY REPLY

34In both its Reply Materials and during oral arguments, the City rejected the Appellants’ claim that it has attempted to protect the entire PMTSA By-law from appeal through the use of built-form regulations. The City provided the example of “minimum landscaped area regulations” as being a valid ground of appeal. In addition, the City affirmed that the Appellants’ revision of the Weber St. Appeal to request zoning from SGA-2 to SGA-3 did not alter the City’s stance that a proposed change in the mapping/zoning schedule of the PMTSA By-law was, in effect, a change to maximum building height. The City provided no comment on the language contained in the Notice of the Passing of a Zoning By-law issued by the City for the PMTSA By-law, as quoted in paragraph [26].

ANALYSIS AND FINDINGS

35There are two aspects to these Appeals, one being the request by the Appellants to amend the strategic growth area zoning that has been applied to the Weber Lands and the Charles Lands. The second relates to the corresponding built-form regulations listed in Tables 6-4 and 6-5, which are found in s. 21 of the PMTSA By-law. For the validity of the Appeals to be considered at this Motion, it is necessary to first determine what is and is not a prohibited ground of appeal as per s. 34(19.5) and (19.6) of the Act.

Do subsection 34(19.5) & (19.6) prohibit appeals within a PMTSA?

36The first issue to be considered is whether subsection 34 (19.5) and (19.6) of the Act create blanket immunity for a zoning by-law amendment for a PMTSA. In the Supreme Court of Canada case Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the decision, delivered by the majority of the court, states at paragraph 120 that,

… the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision.

37In addition, the Tribunal must remain mindful that statutory interpretation is not based solely on the wording of the Legislation. As referenced by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC) at paragraph 21:

…there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

38The Tribunal acknowledges the City’s point that subsection 34 (19.5) and (19.6) are not discretionary provisions. However, the language of subsection 34 (19.5) (a) and (b), as listed in paragraph [14], are clear that the prohibition on appeals extends only to “the parts” of a PMTSA zoning by-law. No linguistic gymnastics are required to interpret the ordinary meaning of the phrase ”the parts”; the entire PMTSA zoning by-law amendment is not protected from appeal.

39It is unknown if an error was made by the City Clerk in drafting the Notice of the Passing of a Zoning By-law, as referenced in paragraph [26], as this was not addressed by the City at the Motion. This Member interprets subsections 34(19.5) and (19.6) as indicative of the fact that there is no legislative intent to completely remove appeal rights with regards to such by-law amendments. In short, the Tribunal is not persuaded that an appeal could be dismissed pursuant to Subsection 34 (19.5) and (19.6) solely on the basis that the disputed land is located within a PMTSA.

Can building height and density within a PMTSA be appealed?

40The Tribunal now turns to the question of whether density and building height are valid ground of appeal for lands within a PMTSA. The City takes the position that the Appeals are prohibited, as the rezoning sought by the Weber St. Appeal and the Charles St. Appeal targets building height and density, which are prohibited ground of appeal. However, this Member has taken a more nuanced interpretation of these terms within the context of s. 34(19.5). In the Member’s view, the Legislators have provided guidance with respect to wording of the subclauses s. 34 (19.5) (a) and (b). The subclauses include the words “minimum” and “maximum” with respect to both building height and density. In this Member’s view, if the legislative intent was to completely prevent appeals of building height or density within a PMTSA, then these adjectives would have been omitted.

41Further, the use of “or” in the subclauses is disjunctive. If the drafters of the legislation had sought to protect both minimum and maximum density and both the minimum and maximum building height, then the grammatical conjunction “and” would have been inserted in the clauses in place of “or”. Therefore, in this Member’s view, either the minimum or the maximum of a building or structure’s height and either the minimum or the maximum of density with respect to buildings and structures on lands within a PMTSA are prohibited from appeal. Consequently, while the City may be correct that maximum height and maximum density are invalid grounds of appeal, that is not the same as suggesting that any appeal with respect to density and building height are prohibited by this subsection of the Act.

42As such, the Tribunal is of the view that planning matters relating to the height of a building up to but not including the maximum thresholds set by a municipality may be appealable. Consequently, the same applies to minimum building height, if that aspect is considered more germane by the municipality. In a similar vein, matters relating to density that fall below the maximum determined by a municipality or above the minimum determined by a municipality, may also be appealable grounds. Whether an appeal with respect to density can be valid if the municipality has chosen not to apply a numerical formula will be discussed in more detail below. In these Appeals, it is clear by the position taken by the City, that it is the maximum density and maximum height of the buildings and structures within the two applicable PMTSAs and its ability to control maximum build-out, that the City considers prohibited grounds of appeal..

Do the Appeals have a reasonable prospect of success?

43This Member would like to address the references to a specific case that was raised in oral arguments as well as in the written Motion materials. The Appellants referenced Toronto (City) v. East Beach Community Assn. (East Beach) as a caution to the Member that a balanced approach must be taken and no hasty conclusions be drawn as to the merit of an issue at this stage of the proceeding. This Member is familiar with the 1996 East Beach Decision, which was an appeal to the Ontario Municipal Board, a predecessor to the Tribunal. It is worth noting that the Ontario Municipal Board Act (“OMB Act”) that was in effect in 1996 did not include an equivalent provision to s. 19(1)(c) of the OLT Act, referenced in paragraph [17]. The ”dismissal without a Hearing” provisions in the OMB Act permitted the Tribunal to dismiss without a hearing only if the fee prescribed under the Act had not been paid or if a person or public body had not responded to a Board request. Now the Tribunal has broader scope and authority to consider the merits of a matter in the pre-hearing stage, which includes the consideration of whether an appeal has a reasonable chance of success.

Are the Appellants appeals of the zoning/mapping schedules valid?

44The City submitted that the only effective difference between SGA-2 and SGA-3 lands, and between SGA-3 and SGA-4 lands is building height. Whereas the Appellants noted in its Notice of Response to Motion of the Appellants, that the Appeals with respect to the zone categories were not directly related to height and that the appeals related to consistency and conformity with the applicable policy documents.

45The Tribunal has reviewed the Comparison Table produced by Pierre Chauvin, the Appellants’ planning consultant, located at Exhibit I to the Affidavit of Pierre Chauvin (“Chauvin’s Table). The Comparison Table compares SGA-2 zones with SGA-3 and SGA-4 zones. The position of the City is that the only “effective” difference between the zones is building height. In fact, the only other difference in the Comparison Table between SGA-2 and SGA-3/4 for buildings up to 12 storeys relates to FSR, which the City is utilizing for minimum density. Differences between SGA-2 and SGA 3 begin at buildings with a height of 13 or more storeys, owing to the fact that such regulations for minimum lot width, setbacks, building length, physical separation, etcetera were “not applicable” for the SGA-2 zone. These differences are only engaged in Chauvin’s Table from SGA-2 to SGA-3 when the height of the structure increases. As such, The Tribunal agrees with the City, and finds that the Weber St. Appeal with respect to amending Zoning Grid 120 of the PMTSA By-law from SGA-2 to SGA-3 is dismissed.

46With respect to the Charles St Appeal, and its assertion that zoning be changed from SGA-3 to SGA-4 to better suit the “development potential” of the Charles Lands, the Tribunal notes that Chauvin’s Table only includes ‘Maximum Building Height’ as a difference between SGA-3 and SGA-4 zones. Therefore, the Tribunal agrees with the City that the Charles St. Appeal, with respect to the mapping of the Charles Lands, is based on the maximum building height permitted in the two different zones. As such, the Charles St. Appeal with respect to amending Appendix A – Zoning Grid Schedule 143 of the PMTSA By-law from SGA-3 to SGA-4 is dismissed.

Are aspects of the PMTSA By-law built-form performance standards appealable?

47The second aspect of the Appeals relates to parts of s. 21 of the PMTSA By-law, specifically Tables 6-4 and 6-5. Counsel for the City argued that the wording of subsection 34(19.5)(b) has been “left open” as there are many forms to control or manage density. The Appellants position is that the prohibition is a narrow one and that the applicable 3D Envelopes use performance measures that encompass more than just height and density.

48It was not disputed at the Motion that managing density can be achieved in different forms, nor was it disputed that it is the prerogative of a Municipality to determine how best to manage its density requirements and targets. The Tribunal finds that the City’s use of interconnected built-form standards to manage density creates challenges for appeals. In practice, can the Tribunal parse out and hear evidence on individual aspects of the performance standards (e.g., lot width, setback) without making a decision that might establish maximum density?

49The Parties both referenced Dementia Care (London) Inc. v London (City) (Dementia Care) the 2023 Decision of then-Member Braun. In that matter, the Tribunal allowed appeals to proceed to a Hearing where those appeals challenged parts of a PMTSA zoning by-law amendment other than parts establishing uses, heights, and densities. Braun noted that while traffic, parking, shadow impacts, land use compatibility and risks to public health and safety have a relationship to height and density, they are not exclusively related to height and density, and involve other built-form considerations. In the Order, it was stated that the Appellants would not be permitted to raise issues nor to present evidence challenging the use, density and height established by the zoning by-law amendment, save and except to the extent that evidence may be led as to matters of density and height which indirectly relate to the issues raises in the appeal.

50In oral arguments at the Motion the City argued that the concerns raised in Dementia Care, such as traffic and shadowing, were “tangential to density at best” whereas in the case at hand, the built-form regulations under appeal were “all related to maximum height and maximum density”. The Appellants’ position was that, like Dementia Care, the Appeals were not of the parts of the PMTSA By-law that establish permitted uses, heights, and densities, and that while some of the Appellants’ concerns may have a relationship to height and density, they were not exclusively related to height and density.

51The Tribunal finds that the Dementia Care case is distinguishable from the matter at hand given the fact that the Decision was based primarily on impacts and not density or building height. Member Braun, as she then was, did not consider the effect of “packaging” design elements and the affect on provisions establishing height or density at the motion. Rather, it was determined that this aspect of the appeal would be best tested at a full hearing.

52This PMTSA By-law is clearly designed to provide the City with more control over development in transit corridors, which includes areas that have development challenges with respect to transitions to more established housing, lot configurations, etcetera. It is not the role of the Tribunal to question the City’s preferred means of regulating maximum density within the two PMTSAs in question. The issue is this – can aspects the performance standards be adjudicated in a standalone manner – meaning, are they so separate and distinct from maximum density (and maximum height) that they have no bearing on, in this case, a protected aspect within a PMTSA?

53The built-form regulations used by the City are subordinate to the Act and must have regard to the language and purpose of the relevant enabling provisions. The Tribunal finds that, as the Act does not prescribe the methodology a municipality must use to determine a minimum or maximum density, a municipality is free to use a non-numerical approach. The City argued that the impacts in Dementia Care, including shadowing, were only “tangential to density”. However, the Staff Report quote in paragraph 8 of this Decision clearly indicates that the built-form regulations do influence shadow, wind, and other impacts on existing and future residents. The Tribunal accepts the Appellants’ position that the utilization of a “bundled” approach to performance standards does not necessarily cancel appeal rights. While there may be challenges in parsing out such aspects when the performance standards are interconnected, it is not the position of the Tribunal, in this matter, to proclaim that the Appeals are impossible.

54Therefore, the Appeals of Section 21 of the PMTSA By-law, being Section 6.4.3 and Table 6-4 for the Weber St. Appeal and Section 6.5.2 and Table 6-5 for the Charles St. Appeal, may continue to a Hearing on the merits. This is granted with the caveat that only aspects of the built-form regulations that do not directly drive maximum height or maximum density are permitted to be challenged at the full Hearing. At a full Hearing, the Tribunal will be provided with both expert and legal arguments on the components of the performance standards that do not directly establish maximum height or maximum density. As the City has not provided a numerical figure for maximum density, the Tribunal is cognizant of the fact that these Appeals may be challenging. The Parties are encouraged to utilize mediation to assist with narrowing the issues before the Hearing.

ORDER

55THE TRIBUNAL ORDERS that the Motion to Dismiss the Appeal without a hearing is granted, in part. The Appeal may proceed to a hearing; however, Charles Preston Kitchener Holdings Inc. and Vive Development Corporation are limited to its appeal of Section 6.5.2 and Table 6-5 of Section 21 of Zoning By-law Amendment No. 2024-065 and are not permitted to raise issues nor to present evidence that exclusively challenge

the permitted uses, maximum density, and maximum height established by Zoning By-law Amendment No. 2024-065 (save and to the extent that evidence may be led as to matters of maximum height and maximum density that indirectly relate to the issues raised in s. 6.5.2 and Table 6-5 in Section 21 of Zoning By-law Amendment No. 2024-065).

“G.A. Croser”

G.A. CROSER

Member

Ontario Land Tribunal

Website: www.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.