Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 19, 2024 CASE NO.: OLT-22-002377

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 30 Duke Street Limited Subject: Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment Reference Number: OPA 20/005W/JVW Property Address: 22 Weber Street W (22 Weber Street W.) Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-22-002377 Legacy Case No: PL210104 OLT Lead Case No: OLT-22-002377 Legacy Lead Case No: PL210104 OLT Case Name: 30 Duke Street 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: 30 Duke Street Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Reference Number: 20/013/W/JVW Property Address: 22 Weber Street W (22 Weber Street W.) Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-22-002378 Legacy Case No: PL210105 OLT Lead Case No: OLT-22-002377 Legacy Lead Case No: PL210104

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c. O.18

Applicant/Appellant: 30 Duke Street Limited Subject: Appeal of the Decision of Council to issue a permit with terms and conditions to (alter/erect/demolish/remove) a building or structure Reference Number: HPA-2022-V-015 Property Address: 22 Weber Street W Municipality/UT: Kitchener/Waterloo OLT Case No: OLT-22-004383 OLT Lead Case No: OLT-22-002377 Legacy Lead Case No: PL210104

BEFORE: GREGORY J. INGRAM & YASNA FAGHANI MEMBER

Thursday, the 19th day of December, 2024

THIS MATTER having come before the Tribunal for a Case Management Conference with the Tribunal’s Decision and Procedural Order issued on November 21, 2024;

AND THE TRIBUNAL having received a request on consent of the Parties to amend the attachments contained in the Procedural Order;

THE TRIBUNAL ORDERS that the following be added to the Procedural Order:

1. Addition of Ms. Elgie to the list of Participants;
2. Complete style of cause has now been inserted; and
3. Mr. Ciccone has been added as co-counsel for the City.

"Euken Lui" EUKEN LUI ACTING REGISTRAR

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.

ISSUE DATE: OLT Case No. PL210104

ONTARIO LAND TRIBUNAL

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 30 Duke Street Limited Subject: Failure of the City of Kitchener to announce a decision respecting Proposed Official Plan Amendment No. OPA 20/005W/JVW Municipality: City of Kitchener OLT Case No.: PL210104 OLT File No.: PL210104 OLT Case Name: 30 Duke Street Limited vs. Kitchener (City)

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

Applicant and Appellant: 30 Duke Street Limited Subject: Application to amend Zoning By-law No. 85-1 - Refusal or neglect of the City of Kitchener to make a decision Existing Zoning: Commercial Residential Three Zone Proposed Zoning: Site Specific (To be determined) Purpose: To permit a 15 storey residential building Property Address/Description: 22 Weber Street W. Municipality: City of Kitchener Municipality File No.: 20/013/W/JVW OLT Case No.: PL210104 OLT File No.: PL210105

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c. O.22.

Applicant and Appellant: 30 Duke Street Limited Subject: Heritage Conservation Act Appeal Reference Number: HPA-2022-V-015 Property Address: 22 Weber Street W Municipality/UT: Kitchener/Waterloo OLT Case No.: OLT-22-004383 OLT Lead Case No.: OLT-22-002377 Legacy Lead Case No.: PL210104 OLT Case Name: 30 Duke Street Limited vs. Kitchener (City)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The hearing will proceed in two phases: a. Phase 1 – The Official Plan Amendment and Zoning By-law Amendment; and b. Phase 2 – The Ontario Heritage Act Permit, to be scheduled upon issuance of the Tribunal’s written Decision in respect of Phase 1.

3. The Phase 1 video hearing will begin on April 14, 2025 at 10:00 a.m. through video link https://meet.goto.com/348282861. When prompted, enter the code 348-282-861. GoTo Meeting: https://meet.goto.com/348282861 Access code: 348-282-861 Audio-only line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889 Audio-only access code: 348-282-861

4. The parties’ initial estimation for the length of the Phase 1 hearing is 15 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

5. The parties and participants identified at the case management conference are set out in Attachment 1.

6. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

7. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

8. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

9. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before December 16, 2024 and in accordance with paragraph 21 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

11. Expert witnesses in the same field shall have a meeting on or before January 17, 2025 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the Tribunal case co-ordinator on or before January 31, 2025.

12. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

13. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 14 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 14 below.

14. On or before February 21, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and to the Tribunal case co-ordinator and in accordance with paragraph 23 below.

15. On or before February 21, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

16. On or before March 10, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before March 28, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing. All models shall be shared electronically.

18. On or before March 14, 2025, the parties shall provide copies of their reply witness statements and expert’s reply witness statements to the other parties and to the Tribunal case co-ordinator and in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal case co-ordinator on or before April 4, 2025.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

21. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before April 4, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. All filings shall be submitted electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

BEFORE: Name of Member: Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1 - PARTIES & PARTICIPANTS

Parties

1. 30 Duke Street Limited TMA Law 25 Main Street West, Suite 2010 Hamilton, ON L8P 1H1 Jennifer Meader and Anna Toumanians Tel: 905.529.3476 Email: jmeader@tmalaw.ca / atoumanians@tmalaw.ca

2. City of Kitchener 200 King Street West, 4th Floor Kitchener, ON N2G 4G7 Katherine Hughes Tel: 519.741.2200ext.7266 Email: katherine.hughes@kitchener.ca

   Garrod Pickfield LLP 9 Norwich Street West Guelph, ON N1H 2G8 Alex Ciccone Tel: 519.837.0500 Email: aciccone@garrodpickfield.ca

3. Region of Waterloo 150 Frederick Street, 3rd Floor Kitchener, ON N2G 4J3 Fiona McCrea and Andy Gazzola Tel: 519.575.4518 / 226-750-5016 Email: fmccrea@regionofwaterloo.ca / agazzola@regionofwaterloo.ca

4. Friends of Olde Berlin Town 55 Margaret Avenue Kitchener, ON N2H 4H3 Hal Jaeger Tel: 519.341.6007 Email: obtfriends@gmail.com

Participants

1. Daniel Ariza dariza347@gmail.com

2. Neil Baarda neil.baarda@gmail.com

3. Ilona Bodendorfer synergistic_solutions@sympatico.ca

4. Richard Buck richard@crbucklaw.com

5. Taijwant (Tony) Greer taijwant@gmail.com

6. Cathryn Harris drcathrynharris@gmail.com

7. Bob Janzen bob.janzen46@gmail.com

8. Adam Joncas adamjoncas@hotmail.com

9. Gail Pool gail.richard.pool@gmail.com

10. North Waterloo Region Branch of Architectural Conservancy Ontario rowell01@sympatico.ca

11. Donna Kuehl adeline@sympatico.ca

12. Peter Eglin peglin@wlu.ca

13. Trudy Wagner twagner29@live.ca

14. Simon Euteneier stonehouserent@gmail.com

15. Sally Gunz sgunz@uwaterloo.ca

16. Roy Cameron cameron@uwaterloo.ca

17. Monica Weber monicaweber10@gmail.com

18. Social Development Centre of Waterloo Region sdcwr@waterlooregion.org

19. John Ryrie jryrie_04@sympatico.ca

20. Kathryn Forler kathrynforler@gmail.com

21. Maaike Asselberg masselbergs@sentex.ca

22. Micah Sadler mica@sadlerrealty.ca

23. Ron Brohman r.f.brohman@gmail.com

24. Kae Elgie kaeelgie@yahoo.com

ATTACHMENT 2 - ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.

Matters of Provincial Interest (Section 2 of Planning Act)

1. Do the proposed Official Plan and Zoning By-law amendment applications (the “proposed applications”) have sufficient regard to the matters of provincial interest listed in section 2(d), (n), (p) and (r)? Party: FOBT

Provincial Policy Statement 2020 and Provincial Planning Statement 2024

2. a) Are the proposed Official Plan Amendment and Zoning By-law Amendment applications (the proposed applications) consistent with the PPS 2020, including but not limited to, policies 1.1.3.2, 1.1.3.3, 1.1.3.4, 2.6 and 4.6? (Issue may no longer apply in light of PPS 2024) Party: City, FOBT

   b) Are the proposed Official Plan Amendment and Zoning By-law Amendment applications (the proposed applications) consistent with the PPS 2024, including but not limited to, sections 2.1.3, 2.1.4, 2.1.6 a), 2.2.1, 2.3.1, 2.4.1, 2.4.2.3, 4.6.1, 4.6.3, 6.1.1, 6.1.5, 6.1.6, 6.1.7, 6.1.11, and 6.1.12? Party: City, FOBT

Growth Plan for the Greater Golden Horseshoe

3. Do the proposed applications conform to the Growth Plan, including but not limited to, Guiding Principle 1.2.1, and policies in sections 2.2.2, 2.2.4, 2.2.6, 4.1, and 4.2.7? (Issue may no longer apply in light of PPS 2024) Party: City, FOBT

Region of Waterloo Official Plan

4. Do the proposed applications conform to the Region of Waterloo Official Objective 3.8? Party: FOBT

5. Do the proposed applications conform to the Urban Area Development policies in chapter 2.D (2.D.1, 2.D.2, 2.D.6, 2.D.10)? Party: City, FOBT

6. Do the proposed applications conform to the Liveability in Waterloo Region policies in chapter 3 (3.A, 3.B, 3.C, 3.G.1, 3.G.6)? Party: City, FOBT

7. Do the proposed Official Plan Amendment and proposed Zoning By-law Amendment implement all requirements to address noise from stationary and transportation sources in conformity with the Regional Official Plan, including Sections 2.G.10, 2.G.13, 2.G.14, 2.G.15 and 2.G.16, including but not limited to an appropriate holding provision? Party: Region

Region of Waterloo Official Plan Amendment 6

8. What consideration, if any, should be given to the following policies of OPA 6: Party: Applicant

   a) Do the proposed applications conform to Policy 2.C.2.2.(f) and general objective bullet #8 (Chapter 2, page 3) regarding cultural heritage conservation? Party: FOBT

   b) Do the proposed applications conform to Policy 2.D.2.8, regarding the appropriate location of major intensification? Party: FOBT

   c) Do the proposed applications conform to Policy 2.F.3, regarding intensification on properties designated under the OHA? Party: FOBT

   d) Do the proposed applications conform to Policy 2.I.5.1, regarding exceeding intensification and density targets? Party: FOBT

   e) Do the proposed applications have sufficient regard to Objective 3.A., bullet 1, regarding supporting a range of housing? Party: FOBT

City of Kitchener Official Plan

9. Do the proposed applications conform to the Urban Structure policies in Part C (3.C.2.9, 3.C.2.10, 3.C.2.17, 3.C.2.20, and 3.C.2.22)? Party: City, FOBT

10. Do the proposed applications conform to the Housing policies in Section 4 (4.C.1.7, 4.C.1.8, 4.C.1.9, 4.C.1.13, and 4.C.1.19)? Party: City, FOBT

11. Do the proposed applications conform to the Private Greenspace and Facilities policies in Section 8 (8.C.1.21 and 8.C.1.23)? Party: City, FOBT

12. Do the proposed applications conform to the Urban Design objectives in Section 11 (11.1.1 through 11.1.8)? Party: City, FOBT

13. Do the proposed applications conform to the Urban Design policies in Section 11 (11.C.1.4, 11.C.1.11, 11.C.1.12, 11.C.1.21, 11.C.1.29, 11.C.1.30, 11.C.1.31, 11.C.1.32, and 11.C.1.33). Party: City, FOBT

14. Do the proposed applications conform to the Cultural Heritage Resources objectives in Section 12 (12.1.2)? Party: City, FOBT

15. Do the proposed applications conform to the Cultural Heritage Resources policies in Section 12 (12.C.1.1, 12.C.1.10,12.C.1.14, 12.C.1.19, 12.C.1.21, 12.C.1.23, 12.C.1.26, 12.C.1.27, and 12.C.1.29?? Party: City, FOBT

16. Do the proposed applications conform to the Active Transportation objectives in Section 13 (13.1.1, 13.1.3, and 13.1.7)? Party: City

17. Do the proposed applications conform to the Transportation policies in Section 13 (13.C.1.4.d, 13.C.1.6, 13.C.1.13, 13.C.3.12, 13.C.7.3, 13.C.7.4, 13.C.8.2, and 13.C.8.4)? Party: City

18. Do the proposed applications conform to the City of Kitchener Official Plan objective 3.2.5? Party: FOBT

City of Kitchener Civic Centre Secondary Plan

19. Do the proposed applications conform to the General Policies in Section 13.1.1 (13.1.1.1, and 13.1.1.7)? Party: City, FOBT

20. Do the proposed applications conform to the Land Use Designation policies in Section 13.1.2 (13.1.2.8)? Party: City, FOBT

Kitchener Zoning By-law

21. Are the proposed on-site secured and visitor bicycle parking rates appropriate for the scale, proposed use, and number of dwelling units proposed with the development? Party: FOBT

22. Do the requested site specific zoning regulations address compatibility between the proposed development, the existing community, and the planned function of the immediate area, including: adequate setbacks from existing low density uses, maximum building heights and step backs regulations to regulate built form, setbacks for surface parking facilities from the public realm, as well as setbacks and step backs from other properties? Do the requested site specific zoning regulations address adequate setbacks and driveway visibility triangles? Does the driveway width comply with zoning regulations and Regional Requirements for Access By-law and policy? Party: City, FOBT, Region

Kitchener Urban Design Manual

23. What weight should be given to the Kitchener Urban Design Manual? Party: Applicant

24. Does the proposed development complement adjacent built form through compatible height, scale, massing, and materials? Party: City, FOBT

25. Does the base of the proposed development meet the built form guidelines for a Tall Building? Party: City, FOBT

26. Does the proposed development achieve sufficient transition to the adjacent existing and planned built form of the adjacent properties? Is there a suitable transition in scale, massing, building height, building length and intensity through setbacks, step backs, landscaping, and compatible architectural design/material selection? Party: City, FOBT

27. Does the proposed development meet the tower separation guidelines for a Tall Building? Party: City, FOBT

28. Does the proposed development exceed the target overlook guidelines for a Tall Building? Party: City

29. Does the proposed development provide a sufficient step back from the base to mitigate the potential wind impact on the public realm? Party: City

30. Does the proposed development include a sufficient shared outdoor amenity area? Party: City, FOBT

31. Is the proposed building height compatible and aligned with adjacent neighbouring properties? Party: City, FOBT

32. Does the proposed development appropriately mitigate the unwanted microclimate impact on surrounding properties, such as wind and shadow impacts? Party: City, FOBT

33. Do the proposed applications respect the Major Transit Station Area guidelines, including but not limited to the following guidelines? a) Compatibility (section 02.2.6, p. 5, items 2 and 4) b) Cultural and Natural Heritage (section 02.2.7, p. 5, item 1) c) Built Form (section 02.3.1, p. 6, items 2 and 4) d) PARTS Central (section 02.4.2, p. 12, item 7) Party: FOBT

34. Do the proposed applications respect the Tall Buildings guidelines, including but not limited to the following guidelines? a) Relative Height, For towers adjacent to low-rise surrounding areas (p. 6) b) Compatibility (p. 15) c) Heritage, When a tall building is adjacent to a built heritage resource (p. 16, items 1, 3 and 4) Party: FOBT

35. Do the proposed applications respect the City-Wide guidelines, including but not limited to the following guidelines? a) Focal Points & Gateways (section 01.2.5, p. 15, item 4), b) Cultural & Natural Heritage (section 01.2.8, p. 18, item 7) c) Built Form (section 01.3.1, p. 19, item 9) d) Site Function (section 01.3.3, p. 23, items 8 and 9) Party: FOBT

Civic Centre Neighbourhood, Heritage Conservation District Plan (HCD Plan)

36. Are the proposed applications consistent with the Heritage District Objective, Principles, and Policies in the HCD Plan (Section 3.1, 3.2, 3.3.3, and 3.3.5.2, Recommendation 4.2.1 on “High Density Commercial Residential Designation” and Bullets 2 and 7 of Guideline 6.9.4)? Party: City, FOBT

37. Are the proposed applications consistent with the Architectural Design Guidelines in the HCD Plan (Section 6.6 and 6.9.4)? Party: City, FOBT

38. Does the proposed development provide a 45 degree angular plane measured from the rear property line to provide transition in scale from proposed development down to adjacent lands? Party: City, FOBT

Other

39. What consideration, if any, should be given to The PARTS Central Plan? Party: Applicant

40. Do the proposed applications represent good planning and are they in the public interest? Party: FOBT

Phase 2: Ontario Heritage Act Permit

41. Is there sufficient information before the Tribunal to issue a Heritage Permit pursuant to section 42 of the Ontario Heritage Act? Party: City

42. Do the proposed applications have sufficient regard to the Ontario Heritage Act, including but not limited to, sections 41.2.2, 42(1) and 68(3)? Party: FOBT

ATTACHMENT 3 - ORDER OF EVIDENCE

1. 30 Duke Street Limited
2. Friends of Olde Berlin Town
3. City of Kitchener
4. Region of Waterloo
5. 30 Duke Street Limited in reply

ATTACHMENT 4 - SUMMARY OF FILING DATES

EVENT	DATE
List of Witnesses	December 16, 2024
Expert Witness Meetings	January 17, 2025
Agreed Statement of Facts & Remaining Issues	January 31, 2025
Participant Statements	February 21, 2025
Witness and Expert Witness Statements	February 21, 2025
Reply Witness Statements	March 14, 2025
Confirm with Tribunal if all hearing dates are required	March 10, 2025
Visual Evidence	March 28, 2025
Hearing Plan	April 4, 2025
Joint Document Book	April 4, 2025
OLT Hearing Commences	April 14, 2025