Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 11, 2024

CASE NO(S).: OLT-23-001045

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

Appellant: Martin and Gerda Wiens

Applicant: Habitat for Humanity Waterloo Region Inc.

Subject: Zoning By-law

Description: ZBL to permit the development of 24 stacked townhouse units

Reference Number: R08/22

Property Address: 325 Shantz Hill Road

Municipality/UT: City of Cambridge/Region of Waterloo

OLT Case No: OLT-23-001045

OLT Case Name: Wiens v. Cambridge (City)

Heard: February 23, 2024, by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Martin and Gerda Wiens	Self-represented*
Habitat for Humanity Waterloo Region Inc.	Alex Ciccone
City of Cambridge	Nicole Auty

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed pursuant to s. 34(19) of the Planning Act (“Act”) by Martin and Gerda Wiens (“Appellant”) against the City of Cambridge (“City”) on its passing of Zoning By-law 23-063. By-law 23-063 ("ZBA") is to amend Zoning By-law 150-85, as amended, to rezone 325 Shantz Hill Road, in the City (“subject lands”) from R3 to OS1 and RM3 s.4.1.442 with site-specific provisions.

2Habitat for Humanity purchased the lands several years ago with the intention of constructing affordable housing. Habitat for Humanity is a non-profit agency whose purpose is to construct family-sized residential units that are owner occupied.

3Given the property shape and environmental condition of the property, special provisions are required as part of the RM3 zone to facilitate the proposed development. The site-specific provisions include:

a. a reduced interior side yard setback on the south interior side yard to 2.2 metres ("m”), whereas 7.5 m is required;

b. a reduced common amenity area to 276 square metres (“m²”), whereas 720 m² is required, and

c. a reduced number of visitor parking spaces to 5 spaces, whereas 6 spaces are required.

4The Tribunal received and recorded all Exhibits to the Hearing, which were identified and assigned an Exhibit number during the Hearing.

5Based on the uncontradicted expert opinion evidence of Mr. Currie and Ms. Hanneman, and upon a review of the applicable provisions of the Act, the Provincial Policy Statement, 2020 (“PPS”), the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), the Region of Waterloo Official Plan (“ROP”) and the City of Cambridge Official Plan (“COP”), the Tribunal orders that the appeal against Zoning By-law No. 23-063 of the City is hereby dismissed.

PROPOSED DEVELOPMENT

6The proposal includes two blocks of stacked townhouses, 3.5 storeys in height with 12 units in each block for a combined total of 24 units at a density of 32 units per hectare (“uph”). The townhouses will be oriented side-by-side and face towards Shantz Hill Road.

7Vehicular and pedestrian access will be provided from Shantz Hill Road via a driveway and sidewalk connection. The parking spaces will be located along the driveway, with the townhouse blocks fronting onto the driveway and parking area. The emergency route will utilize the same driveway access. Landscape buffers and elements are proposed along the north, west and south property lines, as well as a landscape amenity area between the northeast parking area and townhouse block. The rear of the property is adjacent to a wetland and woodland area. The proposal has included a 15 m setback to the wetland.

SITE CONTEXT

8The subject lands are located in the northwest part of the City on the southwest side of Shantz Hill Road. Shantz Hill Road is an arterial road that provides access to Highway 401 and is a major linkage to the City of Kitchener to the north. The subject property has a total land area of 8,172 m² with approximately 40 m of frontage on Shantz Hill Road and is vacant of any buildings or structures. The lands are irregularly shaped and the rear of the property, to the south, contains natural features, including a small intermittent watercourse and a wetland limit and slope that is regulated by the Grand River Conservation Authority.

9The surrounding area is characterized by a range of uses, including residential, commercial, institutional and open space. The subject property is located a short walk from Preston Town Centre, a mixed-use commercial area, and Riverside Park, a large community-scale public park.

APPLICATION HISTORY

10In November 2022, MacNaughton, Hermsen, Britton, Clarkson Planning Limited (“MHBC”) submitted, on behalf of Habitat for Humanity Waterloo, an application to amend the Zoning By-law to permit the stacked townhouse development on the developable portion of the property and to provide protection for the environmentally sensitive lands to the rear of the property.

11On December 13, 2022, a statutory public meeting was held by the City.

12In April 2023, MHBC made a resubmission to provide a response to the action items and comments raised by City and agency staff and the public. The resubmission included an updated Planning Justification Report, concept plan and Environmental Impact Study.

13Through the planning approval process it was determined that the rear portion of the lands should be zoned OS1 (Open Space) in order to recognize and protect the environmental features that are located on the rear of the lot.

14On August 15, 2023, City Council approved the Staff Recommendation and Zoning By-law 23-063 was approved.

15An appeal was filed after the approval of the ZBA.

16The Tribunal was informed that a technical amendment is required under section 3 of the ZBA as per Attachment 1 to this Decision. The technical amendment includes the wording shown in bold and underlined:

THAT the aforesaid City of Cambridge Zoning By-law No. 150-85, as amended, is hereby further amended by adding the following subsection under section 4.1 thereof: 4.1.442, municipally known as 325 Shantz Hill Road:

1. Notwithstanding the provisions of sections 3.1.2.6 (b), (e) and (i) of this By-law, the following regulations shall apply to the lands in that RM3 zone classification to which parenthetical reference to “s.4.1.442” is made on Schedule ‘A’ attached to and forming part of this By-law:

a) A maximum of 24 units shall be permitted.

b) A minimum interior side yard setback of 2.2 m shall be permitted.

c) A minimum common amenity area of 276 m² shall be permitted.

FACTUAL EVIDENCE

17The Appellant advised the Tribunal that he would be self-represented at this proceeding.

18Counsel for the Applicant and City had no objection to the Appellant providing factual evidence (in light of the Appellant not intending to call any witnesses). The Tribunal asked that the Appellant’s testimony be confined to factual information regarding the issues raised and that he refrains from providing opinion evidence.

19The Appellant identified seven areas of concern: density; compatibility; safety during access and egress; environment/natural features; affordability; completeness of application and proper process. The Appellant provided written comments along with photographs to illustrate the relationship between his property and the subject lands.

20All of the Appellant’s concerns were addressed in the planning evidence proffered by the Planners. Mr. Currie addressed the bulk of concerns raised in density; environment/natural features. Ms. Hannemann provided evidence on the completeness of the application and the municipal planning process. It was agreed by all Parties that the discussion surrounding safety of access and egress to the subject land would be best left to the site plan stage. It was explained to the Appellant that the site plan, once finalized, would be subject to further circulation to the applicable departments and agencies for comments.

PLANNING EVIDENCE

21Both Mr. Currie and Ms. Hanneman were qualified without objection, to assist the Tribunal by providing their expert opinion evidence in the area of land use planning.

Policy Framework

22In carrying out its responsibilities, the Tribunal shall have regard to, among other matters, matters of provincial interest as set out in s. 2 of the Act. When making a decision relating to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision as set out in s. 2.1(1) of the Act.

23A decision of the Tribunal, in respect of any authority that affects a planning matter, shall be consistent with the PPS and shall conform with or shall not conflict with the Growth Plan as set out in s. 3(5) of the Act.

24Both Planners opined that the ZBA has regard for the matters of Provincial interest set out in s. 2 of the Act, is consistent with the PPS, conforms or does not conflict with the Growth Plan, conforms with the policies of the upper and lower tier municipal official plans, represents good planning and is in the public interest.

Provincial Policy Statement (2020)

25The PPS establishes land use policy requirements for communities and decisions under the Act.

26Section 1.1.1 of the PPS directs that healthy, liveable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial wellbeing of the Province and municipalities over the long term;

b) accommodating an appropriate affordable and market-based range and mix of residential types (including second units), employment, institutional, recreation, park and open space, and other uses to meet long-term needs;

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns.

27The proposed ZBA provides for an efficient use of underutilized land within the Built-Up Area of the City by allowing 24 affordable stacked townhouse units on existing municipal water and sanitary sewer services. The proposed ZBA provides for the protection of the natural environment features on the site, including the wetland area, by rezoning these lands to OS1 (Open space zoning) which include a 15 m buffer.

28Mr. Currie opined that the ZBA is consistent with the PPS and the Tribunal agrees.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020)

29The Growth Plan objectives include:

a) a minimum of 50% of new development be provided within the Built-Up Area;

b) the promotion and development of complete communities proving opportunities to live in close proximity to amenities and services; and

c) a requirement for municipalities to plan for a mix of housing types and densities, including affordable housing.

30Mr. Currie stated the ZBA conforms with the objectives of the Growth Plan as it supports the intensification objectives and works towards the creation of a complete community, including the addition of 24 affordable housing units to the City.

31The Tribunal agrees with his conclusion.

Region of Waterloo Official Plan

32The Region of Waterloo Official Plan (the “ROP”) is the policy document that establishes the overall land use strategy for both the Region and City.

33The subject lands are located within the ‘Urban Area’ and designated as ‘Built-Up Area’. The ROP directs the majority of future growth to be within the Built-Up Area with a minimum of 45% of new development to be located within the Built-Up Area.

34The ROP requires a mix of housing types, including affordable housing, to be provided within the Region’s Built-Up Area. The proposal provides for a higher density development inclusive of a full complement and range in size of affordable housing along a major transit route, supporting the ROP’s objective to support existing and planned transit.

35Mr. Currie opined that the proposed ZBA, as amended, conforms with the ROP. The Tribunal agrees.

City of Cambridge Official Plan

36The subject lands are designated as Built-Up Area and Low/Medium Density Residential in the COP.

37The Tribunal heard that, through review of the application, it was determined that the property contained a portion of environmentally sensitive land and therefore a split zoning of both OS1, to protect natural features, and RM3, to permit the townhomes, was required.

38The City’s Zoning By-law requires a maximum density of 40 uph in the RM3 zone based on a net residential density calculation. The City’s Zoning By-law defines net residential density as:

the ratio between the number of dwelling units located or proposed to be located on a lot and the area of the lot where the area to be measured includes only those parts of the lot which are classified by this by-law as a residential use class zone.

39Ms. Hannemann explained that the residential density of 70 uph is representative of an appropriate density for a Low/Medium Density development and is consistent with other Low/Medium Density development applications within the City. She opined that the density calculation excluding the OS1 lands is appropriate for this proposal. Noting this, she emphasized her support for the additional site-specific provision to the ZBA.

40The COP encourages a range of housing types (policy 2.8.2) and densities (policy 2.8.3), as well as intensification (policy 2.6.1). The proposed residential units would contribute to the availability of affordable housing and be within walking distance of schools, outdoor amenities and community services in the nearby Preston Village Core Area. The Tribunal heard the proposal is a modest form of infill development, at 3.5 storeys in height and is consistent with the size and scale of development considered by the applicable Low / Medium Density Residential designation of the Official Plan, with 32 uph and a height balanced by a reduced lot coverage of 10%.

41The Appellant stated, by contrast, that each of the two proposed new buildings would have a footprint of more than 420 m² and a height of over 12 m. In addition, he raised a concern that Block A would sit just 2.2 m off the property line, atop a 7.5 m high retaining wall. Thus, it would tower approximately 20 m over his backyard area. The Appellant stated that the setback should be increased to lessen the visual impact, which effectively magnifies the already large difference in massing and scale between the neighbourhood and proposed structures. He emphasized that the proposed structures are not compatible with the surrounding neighbourhood including his property.

42Mr. Currie confirmed that the COP defines “compatibility” as: development that, although it is not necessarily the same as or similar to existing buildings or uses in the vicinity, nonetheless exists in harmony with or enhances an established community. Mr. Currie stated the proposed development will not have a physical or functional adverse impact on surrounding properties because of the topography of both Shantz Road and the subject property. Mr. Currie further drew the Tribunal’s attention to policy 2.6.1.8 of the COP, regarding intensification within the Built-Up Area:

Infill, intensification and redevelopment within existing neighbourhoods will be minor in nature and will be designed to respect existing character and provide connections and linkages where possible.

43The Appellant lacked a compelling argument and provided little illustration to show that the proposed development would not be compatible with the established community and/or have any adverse impact on area residents other than his own property.

Special Provisions

44The special provisions, as described and illustrated to the Tribunal by Mr. Currie, are required as a result of the lot configuration, for the protection of environmental features and are considered appropriate.

45The proposed interior side yard setback of 2.2 m is a result of the property shape and natural area. In order to safely develop the site and provide enough space to accommodate a retaining wall, the interior side yard setback is proposed to be reduced. The 2.2 m setback will provide sufficient space for grading and drainage, as well as the retaining wall, and will maintain an appropriate distance to the abutting property.

46The proposed outdoor common amenity area of 276 m² is appropriate, given the proximity of surrounding parks and private amenity space.

47The proposed number of visitor parking spaces is considered appropriate, given that the lands are located in an area served by rapid public transit and active transportation. Further, the proposal ensures that all residential units will have a parking space. Mr. Currie opined that the reduction of one parking space to the visitor parking count is not a significant deficiency.

FINDINGS AND ANALYSIS

48Based on the uncontroverted evidence provided to the Tribunal by both professional planners, the Tribunal finds that the Zoning By-law Amendment with site-specific amendments meets the required legislative framework and aids in the Province’s direction to add to the supply of affordable housing units.

49The Tribunal finds that the proposed ZBA with the site-specific amendments has regard to s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan as well as the ROP and COP policies established for the Urban Built-Up Area.

50The Tribunal finds the proposed density is in accordance with the requirements of the PPS, Growth Plan and ROP which promote higher density development along existing and planned high frequency transit routes. The subject property is well connected to the provincial highway, arterial (Regional) and collector road network, existing public transit and active transit infrastructure. The subject property fronts onto Shantz Hill Road and is within proximity to Fountain Street, as well as Preston Parkway, which is a collector road.

51The proposed ZBA with site-specific amendments is in conformity with the section 2 (contributing to a range of housing), section 3 (consideration of locally significant natural areas) and section 8 (allowance for stacked townhouses on an infill site meeting the density targets) of the COP. The proposed residential units would contribute to the availability of affordable housing and will be within walking distance of schools, outdoor amenities and community services in the nearby Preston Village Core Area.

52The Tribunal is satisfied that consideration has been taken in the ZBA to conserve the natural features resident on the property through the rezoning of an additional 15 m setback as Open Space between the natural features and the development area.

53Compatibility is important in the Tribunal’s consideration and analysis of the Official Plan policy. The first point of departure is to determine exactly what compatibility indeed is, as the Tribunal hears evidence that new development must be compatible with the existing development.

54The Tribunal looks to Motisi v. Bernardi, 1987 CarswellOnt 3719, (1987) O.M.B.D. No. 2, 20 O.M.B.R. 129 for some direction. This case states:

Being compatible with is not the same thing as being the same as. Being compatible with is not even the same thing as being similar to. Being similar to implies having a resemblance to another thing; they are like one another, but not completely identical. Being Compatible with implies nothing more than being capable of existing together in harmony.

55The Tribunal finds that the proposed development is sufficiently compatible with the greater area of the neighbourhood and constitutes good land use planning.

56Finally, having heard comments provided by the Appellant and based in the appeal filed that suggested a lack of communication, transparency and accountability in the planning process, the Tribunal is satisfied that the public process undertaken by the City planning department, and in particular in the evidence proffered by Ms. Hannemann, followed all prescribed statutory requirements and that the Application was given full due consideration.

ORDER

57THE TRIBUNAL ORDERS that the appeal is dismissed and Zoning By-law No. 23-063 of the City of Cambridge is amended and approved as contained in Attachment 1.

“D. Chipman”

D. CHIPMAN 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.

Attachment 1