Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 05, 2024
CASE NO(S).: OLT-23-001308
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: Owl Properties Incorporated c/o Oliver Jahn
Subject: Zoning By-law
Reference Number: ZBA23/232/K/JZ
Property Address: (Lower Doon Study Area)
Municipality/UT: Kitchener/Waterloo
OLT Case No: OLT-23-001308
OLT Lead Case No: OLT-23-001308
OLT Case Name: Owl Properties Incorporated c/o Oliver Jahn v. Kitchener (City)
Heard: May 16, 2024 by Video Hearing
APPEARANCES:
Parties: Counsel
Owl Properties Incorporated c/o Oliver Jahn (“Appellant”): Matthew Helfand
City of Kitchener (“City”): Lesley MacDonald
Memorandum of oral DECISION DELIVERED BY Gail Ross AND T.F. NG on May 16, 2024 AND ORDER OF THE TRIBUNAL
Link to Final Order
Introduction
1The matter before the Tribunal was recently converted to a Settlement Hearing (“Settlement”) from a previously scheduled Merit Hearing, of the Appellant’s appeal of Zoning By-law No. 2023-156 (“ZBA”).
2The purpose of the ZBA was to implement the Lower Doon Land Use Study. The Appellant owns properties within the Lower Doon Area which are 136 and 270 Doon Valley Drive (“Subject Property”). The Appellant did not have concerns with the Official Plan Amendment (“OPA”) 23/013/K/JZ relating to the Subject Property.
3The Appellant and the City have settled the matter through a “with prejudice” Settlement offer accepted by the City (the “Settlement Proposal”); thus, the Merit Hearing was converted to a Settlement Hearing. Following the Settlement Proposal, a Zoning By-law Amendment (the “draft ZBA”) that implements the Settlement was presented to the Tribunal (the draft ZBA to be attached to the Decision and Order).
4David Galbraith, Member of the Canadian Institute of Planners (MCIP) and Registered Professional Planner (RPP), (“the Expert”), appeared on behalf of the Appellant and testified in support of the Settlement. The Tribunal qualified him to provide opinion evidence in land use planning matters. The Affidavit of Service of Notice was marked as Exhibit A, the Expert’s Witness Statement was marked as Exhibit 1, and the Document Book as Exhibit 2.
5The Tribunal having considered the uncontested testimony of the Expert, the Settlement Proposal, and having reviewed the documents filed, allows the appeal in part for the reasons set out below.
PLANNING EVIDENCE
6The Expert described the Chronology of Events Leading to the Matter before the Tribunal relating to the City-initiated Lower Doon Land Use Study and the City’s OPA and ZBA. The Appeal is with regards to the lands, which have been re-zoned Low Rise Residential Four Zone (RES-4) by Zoning By-law No. 2023-156.
7The relevant policy framework includes the Provincial Policy Statement (“PPS”), the City’s (“OP”), the Region of Waterloo Official Plan (“ROP”), and A Place to Grow – Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). He opined that the Settlement Proposal and the Appellant’s ZBA represent good land use planning and recommended approval of the Settlement.
AREA CONTEXT
8The Settlement proposed the application of RES-5 zoning to a scoped list of applicable properties which are generally located on Doon Valley Drive and the south portion of adjacent streets, which are peripheral to the neighbourhood and in closest proximity to the Conestoga College main campus. These applicable properties are directly fronting on Conestoga College lands, and generally avoid properties within the interior of the Lower Doon neighbourhood.
THE APPLICATION
9As a result of the Lower Doon Land Use Study, the applicable lands were recommended to be Residential Five Zone (RES-5) {Low Rise Residential Five Zone} by City Planning Staff. This would have permitted a wide range of low-density dwelling types, including single detached dwellings, semi-detached dwellings, street townhouse dwellings, stacked townhouse dwellings, and multiple dwellings, generally limited to a maximum Floor Space Ratio of 0.6 and a maximum height of 11 metres (“m”).
10The Appellant appeals the City’s decision to convert the Subject Property area zone (RES-5) {Low Rise Residential Five Zone} to Residential four Zone (RES-4) by By-law No. 2023-156
11The purpose and effect of the settlement is to maintain the RES-5 Zoning to the applicable properties and in doing so:
a) The zoning will facilitate context appropriate location, at a scale appropriate for the neighbourhood, including a maximum height of 11 m, Floor Space Ratio of 0.6, and minimum yard requirements indicative of the area;
b) The permitted heights are the same as those permitted within the RES-4 Zone;
c) The affected properties generally have lot sizes and dimensions suitable to accommodate a range of housing options including detached and semi-detached dwellings, townhouses, cluster townhouses and low-rise apartment buildings;
d) The affected properties are located adjacent / across from Conestoga College Main Campus and peripheral to the Lower Doon Area.
12The Settlement Proposal presented to the Tribunal is supportive of the amendment to the City’s Zoning By-law No. 2019-051, by applying RES-5 zoning to the identified properties – generally located along Doon Valley Drive – aligning to the overarching land use planning framework applicable to the Lower Doon Area.
Analysis/FINDINGS
13The Tribunal agrees with the Expert that the Settlement Proposal:
a) supports appropriate infilling and intensification in areas generally peripheral to the established neighbourhood, at a compatible low-rise scale; and
b) supports the provision of an expanded range of housing options in the area, allows for context appropriate infilling, and supports walkability and transit use to Conestoga College and other nearby land uses.
14The Tribunal finds that the Settlement Proposal:
a) is consistent with the PPS, in particular, Policy 1.1.3.1 of the PPS, which provides that “settlement areas shall be the focus for growth and development”. The Lower Doon Area is located within the City’s Urban Area and Built-Up Boundary, where growth is to be focused, and Policy 1.1.3.4, which facilitates intensification and compact form;
b) conforms to the Growth Plan, as set out in Section 1.2.1 which prioritizes, in part, intensification, higher densities to make efficient use of land and infrastructure;
c) conforms to the ROP, Amendment No 6, in particular, the guiding principles that support context-appropriate infilling, the creation of 15-minute communities, improved walkability, a range of housing choices and the use of existing transit. Section 2B of the ROP establishes ‘Urban Systems’, which promotes strategic growth areas and intensification corridors; and
d) conforms to the City’s OP, which guides long-term growth and development of the City, identifies the entirety of the Lower Doon Area as within the Built-up Area within the Urban Area Boundary, and that redevelopment should be within these areas, which aligns with intensification targets.
Conclusions
15The Tribunal is satisfied that the Settlement Proposal represents good planning, and that the proposed draft ZBA has regard for the matters of Provincial interest as set out in s. 2 of the Planning Act, is consistent with the PPS, and conforms to the Growth Plan, the ROP and the City’s OP.
ORDER
16THE TRIBUNAL ORDERS THAT:
The appeal against Zoning By-law No. 2023-156 of the City of Kitchener is allowed in part and Zoning By-law No. 2019-051 is amended as set out in Attachment 1 to this order. In all other respects the Tribunal orders that the appeal is dismissed.
No Costs shall be awarded in respect of this Order.
“GAIL ROSS”
GAIL ROSS
MEMBER
“T.F. NG”
T.F. NG
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