Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 25, 2024
CASE NO(S).: OLT-23-000866
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kitchener Trussler Holdings Inc. & Kitchener Trussler Holdings 3 Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of 204-409 residential units including single-detached, townhouse and multiple-unit residential dwellings
Reference Number: OPA22/009/O/AP
Property Address: 2219 Ottawa Street South and 808 Trussler Road
Municipality/UT: Kitchener/Waterloo
OLT Case No.: OLT-23-000866
OLT Lead Case No.: OLT-23-000866
OLT Case Name: Kitchener Trussler Holdings Inc. & Kitchener Trussler Holdings 3 Inc. v. Kitchener (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kitchener Trussler Holdings Inc. & Kitchener Trussler Holdings 3 Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of 204-409 residential units including single-detached, townhouse and multiple-unit residential dwellings
Reference Number: ZBA22/016/O/AP
Property Address: 2219 Ottawa Street South and 808 Trussler Road
Municipality/UT: Kitchener/Waterloo
OLT Case No.: OLT-23-000867
OLT Lead Case No.: OLT-23-000866
OLT Case Name: Kitchener Trussler Holdings Inc. & Kitchener Trussler Holdings 3 Inc. v. Kitchener (City)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kitchener Trussler Holdings Inc. & Kitchener Trussler Holdings 3 Inc.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To permit the development of 204-409 residential units including single-detached, townhouse and multiple-unit residential dwellings
Reference Number: 30T-22201
Property Address: 2219 Ottawa Street South and 808 Trussler Road
Municipality/UT: Kitchener/Waterloo
OLT Case No.: OLT-23-000868
OLT Lead Case No.: OLT-23-000866
OLT Case Name: Kitchener Trussler Holdings Inc. & Kitchener Trussler Holdings 3 Inc. v. Kitchener (City)
Heard: May 6, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Kitchener Trussler Holdings Inc., and Kitchener Trussler Holdings 3 Inc. | Meaghan McDermid |
| City of Kitchener | Katherine Hughes |
| Region of Waterloo | Fiona McCrea |
DECISION DELIVERED BY S. BOBKA and ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1These Appeals arise following the City of Kitchener’s (“City”) failure to render a decision within the required time period regarding applications by Kitchener Trussler Holdings Inc. and Kitchener Trussler Holdings 3 Inc. (together the “Applicant”) for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision (“Draft Plan”) with respect to lands municipally known as 2219 Ottawa Street South and 808 Trussler Road (“Subject Lands”) in the City.
2This matter came before the Tribunal with a proposed Settlement, which the Tribunal heard on May 6, 2024. On that date, the Tribunal granted an oral Interim Order approving the draft instruments in principle, but withholding the Final Order. Since the Hearing event, the Tribunal has received the final forms of the instruments and determines that they warrant approval for the following reasons.
3The Tribunal confirms that it has received and considered the following materials and submissions including, but not limited to:
a. the uncontested expert opinion evidence of Matthew Warzecha, a Land Use Planner retained by the Applicant, provided in his oral testimony and his comprehensive Affidavit, sworn May 2, 2024; (marked as Exhibit 2)
b. the Parties’ oral submissions in support of the Settlement proposal;
c. the draft instruments, submitted by the Parties, on consent;
d. the draft Interim Order, submitted by the Parties, on consent;
e. the final instruments, submitted by the Parties, on consent; and
f. the draft Final Order, submitted by the Parties, on consent.
CONTEXT
5The Proposed Development will comprise a mix of residential, institutional and commercial (in the form of live/work units) uses, as well as a stormwater management system, parkland and natural heritage lands. A mix of street townhouse and single detached dwellings as well as three multi-residential blocks are proposed.
6The Subject Lands:
a. are comprised of 13.33 hectares (“ha”) (32.94 acres) along the western boundary of the City and are located south of the Conestoga Parkway (Highway 7/8);
b. are bound by three regional roadways including Ottawa Street South (to the north);
c. are generally rectangular with approximately 374.3 metres (“m”) of frontage along Ottawa Street South to the north, 509.5 m of frontage along Trussler Road to the west, and 111.4 m of frontage along Bleams Road to the south. Mannheim Water Treatment Plan is to the east, separated by a large open space;
d. are made up of a mixture of grassland and wooded area, as well as a small wetland (approximately 0.16 ha) along the Trussler Road frontage;
e. have significant topographic conditions that generally slope down from the northeast and southeast corners toward the wetland and Trussler Road;
f. contain an existing residential dwelling at 2219 Ottawa Street South which is a rare example of a mid-century modern residential dwelling in the ‘Prairie’ style. Though not currently designated under the Ontario Heritage Act, it is listed on the ‘Heritage Kitchener Inventory of Historic Buildings’.
7The proposed Draft Plan will include:
a. a looping street network (Street A/Prairie Crescent), with two accesses from Ottawa Street South;
b. Street A (Prairie Crescent) which is bisected by a short connection (Street B/Fallingwater Street);
c. the existing heritage building which will remain in-situ, with a Park block to the east and stormwater management facility to the west. It is noted that as part of the Settlement, it has been agreed that the existing heritage building will be designated under Part IV of the Ontario Heritage Act by the City prior to December 31, 2024; and
d. a second park block which will be centrally located on Street B (Fallingwater Street).
EVIDENCE
8Upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty form, the Tribunal qualified Matthew Warzecha to provide expert opinion evidence in Land Use Planning.
9In his Affidavit and oral testimony, Mr. Warzecha provided his overall opinion that the OPA, ZBA and Draft Plan “have the appropriate regard to matters of provincial interest and conform with all applicable Provincial, Regional and City policies in effect at the time of the Applications.”
10It was his opinion that the Proposed Development including the OPA, ZBA and Draft Plan represent good planning and are in the public interest. He specified that the instruments:
a. have regard for the relevant matters of Provincial interest as outlined in s. 2 of the Planning Act (“Act”) as they integrate the retention of the existing heritage dwelling, have sufficient servicing capacity, are within the Settlement Area and are designated for development within the Region and City OP, contribute to the diversification of the available housing stock have been well-designed and give consideration to the natural topographic constraints of the Subject Property;
b. are consistent with the Provincial Policy Statement (2020) (“PPS”) as they make efficient use of an underutilized property, provide a mix of unit sizes and typologies in terms of housing stock, provide convenient and efficient access to transit services and will be serviced using existing infrastructure.
c. conform to the Growth Plan for the Greater Golden Horseshoe (2020) (“Growth Plan”) as they provide appropriate built-form within the urban settlement, contribute to a complete community, can be efficiently serviced using existing municipal systems, include a mix of sizes and levels of affordability, contribute to the intensification targets in the built-up area and contribute to the Region’s minimum density target;
d. conform with the Region of Waterloo Official Plan (2015) (“ROP”) as they are within the Urban Area which is intended to accommodate the majority of growth, contribute to the density target, will be serviced by a mix of transportation options, will provide for an appropriate variation of types, sizes and affordability which will be compatible with the surrounding area, will preserve the existing cultural heritage asset in-situ and re-use the structure and will ensure the long-term ecologic and hydrologic function of the existing wetland;
e. conform with the City of Kitchener Official Plan (2014) (“OP”), as is proposed to be amended, as they contribute to the minimum density target while implementing the policies of the Low Rise Residential, Medium Rise Residential, Mixed Use, Institutional, Natural Heritage Conservation and Open Space land use designations;
f. have sufficient regard for the criteria outlined in s. 51(24) of the Planning Act regarding the Draft Plan, as they are in a location where growth and development are to be directed, contribute a mix of typologies, sizes and levels of affordability to the local housing supply, can be adequately and efficiently serviced, allow for the efficient use of land and ensure the long-term protection of the wetland and buffer features; and
g. contain Conditions of Approval in the Draft Plan that are generally typical of this type of development and are reasonable.
11Mr. Warzecha highlighted that the ZBA implements the Draft Plan as well as the intent of the OP, which is appropriate for the land and is responsive to the site-specific challenges of the Subject Lands. He also stated that the Proposed Development represents both:
a. urban design which has regard for the Subject Lands and the character of the surrounding lands; and
b. an appropriate level of density, height and intensification for the Subject Lands which is compatible with the existing and planned context of the surrounding area.
FINDINGS
12The Tribunal accepts the uncontroverted opinion evidence of Mr. Warzecha, and similarly finds that the proposed OPA, ZBA and Draft Plan have regard to the applicable matters of Provincial interest as found in s. 2 of the Planning Act, are consistent with the PPS, conform to the Growth Plan, conform to the OP, have sufficient regard for the criteria in s. 51(24) of the Act and otherwise reflect principles of good land use planning in the public interest.
13The Tribunal finds that the proposal will create a range of housing options (including differing types, sizes and levels of affordability) in an appropriate location for growth and at a suitable level of intensification. In addition, the proposal will contribute to the creation of a complete community, contribute to the achievement of density targets, be transit-supportive, efficiently utilize municipal infrastructure and preserve the existing cultural heritage asset on the site while adaptively re-using the structure.
14The Tribunal also finds that the proposed Conditions of Approval of the Draft Plan are reasonable and have regard to the nature of the proposed development.
15As stated, at the Hearing event, the Tribunal approved in principle the OPA, ZBA and Draft Plan (as presented in Mr. Warzecha’s Affidavit), with the approval of the latter subject to the Conditions (generally in the form included in Mr. Warzecha’s Affidavit). The final Order was withheld until the final form of the instruments were provided in a form satisfactory to the Parties and approved by the Tribunal. The final instruments were provided to the Tribunal on June 5, 2024 and the Tribunal is satisfied that they warrant approval.
ORDER
16THE TRIBUNAL ORDERS THAT the Appeals are allowed, in part, and:
a. the Official Plan of the City of Kitchener is amended as set out in Attachment 1 to this Order;
b. By-law 2019-051 is amended as set out in Attachment 2 to this Order. The Tribunal authorizes the Municipal Clerk of the City of Kitchener to assign a number to this by-law for record-keeping purposes;
c. the Draft Plan of Subdivision as set out in Attachment 3 to this Order is approved, subject to the conditions as set out in Attachment 4 to this Order; and
d. Pursuant to subsection 51(56.1) of the Planning Act, the final approval of the Plan of Subdivision for the purposes of subsection 51(58) shall be given by the City of Kitchener.
17THE TRIBUNAL FURTHER ORDERS THAT, pursuant to Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, notwithstanding the eventual date of the formal issuance of this Order, it shall be, and was, effective as of June 5, 2024, which is the date that the Tribunal received, considered and determined the request for the Final Order in this proceeding.
“S. Bobka”
S. BOBKA 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.
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