65 Northfield Drive Inc. v. Waterloo (City), 2024 CanLII 74363

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 29, 2024

CASE NO(S).: OLT-24-000528

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

Applicant and Appellant: 65 Northfield Drive Inc.

Subject: Official Plan Amendment – Failure to adopt the requested amendment

Description: To permit a total of 3,353 residential dwelling units including 12 high-rise towers ranging in height between 18 and 35 storeys

Reference Number: OPA 32

Property Address: 525 and 565 Conestogo Road West

Municipality/UT: City of Waterloo / Region of Waterloo

OLT Case No.: OLT-24-000528

OLT Lead Case No.: OLT-24-000528

OLT Case Name: Northfield Drive Inc. v. Waterloo (City)

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

Appellant: 65 Northfield Drive Inc.

Subject: Zoning By-law Amendment

Description: To permit a total of 3,353 residential dwelling units including 12 high-rise towers ranging in height between 18 and 35 storeys

Reference Number: By-law No. 2023-111

Property Address: 525 and 565 Conestogo Road West

Municipality/UT: City of Waterloo / Region of Waterloo

OLT Case No.: OLT-24-000080

OLT Lead Case No.: OLT-24-000528

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 65 Northfield Drive Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit a total of 3,353 residential dwelling units including 12 high-rise towers ranging in height between 18 and 35 storeys

Reference Number: 30T-21401

Property Address: 525 and 565 Conestogo Road West

Municipality/UT: City of Waterloo / Region of Waterloo

OLT Case No.: OLT-24-000078

OLT Lead Case No.: OLT-24-000528

Heard: July 22, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

65 Northfield Drive Inc.

Jennifer Meader

Anna Toumanians

City of Waterloo

Judy McNeeley

Regional Municipality of Waterloo

Fiona McCrea

memorandum of oral DECISION delivered BY STEVEN T. MASTORAS ON July 22, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is a first Case Management Conference (“CMC”) relating to three appeals. The first is under section 17(40) of the Planning Act (“Act”) resulting from the failure of the Region of Waterloo (“Region”) to adopt an Official Plan Amendment (“OPA”) to the City of Waterloo (“City”) OPA-32; the second is under sections 34(19) regarding City Zoning By-law No. 2023 -111 (“ZBL”); and, lastly under section 51(34) of the Act, for the Regional Municipality of Waterloo (“Region”) failure to make a decision within the statutory timeframe with respect to the Draft Plan of Subdivision (“DPS”) (together “Applications”/“Appeals”).

2The Appeals have been filed by 65 Northfield Drive Inc. (“Applicant”/“Appellant”) regarding the addresses municipally known as 525 and 565 Conestogo Road West (“Subject Lands”). The Subject Lands consist of approximately 7.27 Hectares (“Ha”) located at the intersection of Conestogo Road West and Northfield Drive West. The Applications are based on a proposal to allow a mixed-use development, consisting of 12 high-rise towers ranging in heights from 18-35 storeys, including a total of 3353 residential units, commercial employment uses, and a Privately Owned Public Space (“POPS”) planned for the central portion of the Subject Lands, along with outdoor amenity and recreation space (parkland) for future residents, employees, and the general public (“Proposal”).

3Notice of Hearing of this first CMC was confirmed by Affidavit of service, signed by Victoria Peacock on June 26, 2024, and is marked as Exhibit 1.

4The purpose of the OPA is to amend the land use designation in the City Official Plan (“COP”) from Business Employment (Deferral) to Mixed-Use Community Commercial, with a Site Specific Provision Area policy to:

• permit a maximum building height of 35 storeys and 118 metres (“m”);

• permit a maximum density of 750 bedrooms per hectare and a maximum of 5,452 bedrooms;

• require a minimum number of non-residential uses;

• permit a Holding (“H”) provision on the lands that requires a number of technical plans and studies prior to the development of the lands; and

• permit and regulate the location of residential buildings and parking.

5The purpose of the ZBA is to rezone the Subject Lands from Future Development (FD) to Station Area Mixed-Used Community Commercial – 81 (C1A-81). The ZBA also proposes a Site-Specific exemption to implement the OPA and to:

• Address performance standards including maximum building heights, overall maximum density, building setbacks, tower separation and dimensions, and minimum and maximum parking;

• Regulate non-residential land use and minimum building floor area requirements;

• Require an H provision for technical plans and studies prior to development of the lands; and

• Establish open space locations and permissions.

6The purpose of the proposed DPS is to establish eight development Blocks, a new Public Road (Street A), a Block for the Hydro Corridor that traverses the Subject Lands and associated 0.3 m Reserve Blocks along Conestoga Road West and Northfield Drive. The development Blocks are planned for multiple high-rise buildings containing residential, commercial and employment uses. The Applicant intends to remove the Hydro Corridor through the DPS process.

STATUS REQUEST

7A written Party status request, dated June 4, 2024, was submitted to the Tribunal by the Region as the upper tier municipality in this matter. As the approval authority for OPA and DPS matters in the City, the Region is therefore a statutory Party, and reviews and provides comments on ZBA matters as they relate to conformity with the Region Official Plan (“ROP”), and other matters as delegated to the Region by the Province. There were no concerns or objections from the other Parties and the Tribunal affirmed Party status to the Region related to the Appeals.

HEARING REQUEST AND PROCEDURAL ORDER

8The Applicant requested that a further CMC be scheduled in order to allow time for the Parties to further scope issues related to the Proposal, in addition to the scheduling of a 10 to 12 day Hearing at the discretion of the Tribunal. This request was based on the expectation that there may be a total of 12 witnesses that may need to testify at the Hearing between all of the Parties, ideally in early 2025.

9After careful review of the Tribunal’s calendar, with consideration given to the respective schedules of each of the Parties, the Tribunal determined that a further CMC be scheduled for Friday, October 11, 2024, by Video Conference beginning at 10 a.m.

10The Tribunal also directed that a Hearing on the merits be scheduled to commence on Thursday, January 30, 2025, to Friday, February 14, 2024, by Video Conference beginning at 10 a.m.

11The Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Friday, October 11, 2024, at 10 a.m. (One-Day CMC Hearing)

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access code: 519-389-173

Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373

Audio-only access code: 519-389-173

Thursday, January 30, 2025, to Friday, February 14, 2024, at 10 a.m. (12-Day Merit Hearing)

GoTo Meeting: https://meet.goto.com/911724677

Access code: 911-724-677

Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373)

Audio-only access code: 911-724-677

12Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is availablehttps://app.gotomeeting.com/home.html

13Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line.

14Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

15The Tribunal further directed that the updated final Procedural Order and Issues List (“PO/IL”) be submitted to the Case Coordinator on or before Friday, July 26, 2024, to help guide the future proceedings. The draft, final PO/IL was received and approved by the Tribunal, on Friday, July 26, 2024.and is attached below to this Order as Schedule 1.

16Finally, the Tribunal was encouraged by the commitment from all Parties to continue their cooperation and any efforts to scope issues further in an attempt to achieve a possible settlement of the Appeals and were reminded of the prospect of Tribunal-led mediation if mutually requested.

ORDER

17THE TRIBUNAL ORDERS that:

a) The dates and particulars of the further Case Management Conference, and the Hearing on the merits are set out above; and,

b) The Procedural Order and Issues List are attached to the Order as Schedule 1.

18There will be no further notice.

19The Member is not seized on this matter.

“Steven T. Mastoras”

STEVEN T. MASTORAS

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.

SCHEDULE 1

CASE NO(S).:OLT-24-000528

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

Applicant and Appellant: 65 Northfield Drive Inc.

Subject: Official Plan Amendment – Failure to adopt the requested amendment

Description: To permit a total of 3,353 residential dwelling units including 12 high-rise towers ranging in height between 18 and 35 storeys

Reference Number: OPA 32

Property Address: 525 and 565 Conestogo Road West

Municipality/UT: City of Waterloo / Region of Waterloo

OLT Case No.: OLT-24-000528

OLT Lead Case No.: OLT-24-000528

OLT Case Name: Northfield Drive Inc. v. Waterloo (City)

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

Appellant: 65 Northfield Drive Inc.

Subject: Zoning By-law Amendment

Description: To permit a total of 3,353 residential dwelling units including 12 high-rise towers ranging in height between 18 and 35 storeys

Reference Number: By-law No. 2023-111

Property Address: 525 and 565 Conestogo Road West

Municipality/UT: City of Waterloo / Region of Waterloo

OLT Case No.: OLT-24-000080

OLT Lead Case No.: OLT-24-000528

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 65 Northfield Drive Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit a total of 3,353 residential dwelling units including 12 high-rise towers ranging in height between 18 and 35 storeys

Reference Number: 30T-21401

Property Address: 525 and 565 Conestogo Road West

Municipality/UT: City of Waterloo / Region of Waterloo

OLT Case No.: OLT-24-000078

OLT Lead Case No.: OLT-24-000528

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. A second case management conference will be held on Friday, October 11, 2024 at 10 a.m. at

GoTo Meeting: https://global.gotomeeting.com/join/519389173

Access code: 519-389-173

Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373

Audio-only access code: 519-389-173

3. The video hearing will begin on Thursday, January 30, 2025 at 10 a.m. at

GoTo Meeting: https://meet.goto.com/911724677

Access code: 911-724-677

Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1(647) 497-9373)

Audio-only access code: 911-724-677

4. The parties’ initial estimation for the length of the hearing is twelve [12] 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. A summary of key dates is set out in Attachment 4.

5. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

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 September 12, 2024 and in accordance with paragraph 23 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 October 2, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties may prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before October 22, 2024.

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 November 18, 2024, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.

15. On or before November 18, 2024, 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 December 19, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before January 15, 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.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 19, 2024 and in accordance with paragraph 23 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 20, 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 January 20, 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 (in searchable and printable PDF format, unless otherwise agreed by the Parties and the OLT case coordinator) and, if requested by the OLT case coordinator, in hard copy. 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.

25. A summary of procedural dates is set out in Attachment 4.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES & PARTICIPANTS

PARTIES

1. 65 Northfield Drive Inc.

TMA Law

25 Main Street West, Suite 2010

Hamilton, ON L8P 1H1

Jennifer Meader

Tel: 905.529.3476

Email: jmeader@tmalaw.ca

Anna Toumanians

Tel: 905.529.3476

Email: atoumanians@tmalaw.ca

2. City of Waterloo

100 Regina Street South

Waterloo, ON N2J 4A8

Judy McNeeley

Tel: 519.577.5065

Email: judy.mcneeley@waterloo.ca

3. Region of Waterloo

150 Frederick Street

Kitchener, ON N2G 4J3

Fiona McCrea

Tel : 519.575.4518

Email : fmccrea@regionofwaterloo.ca

ATTACHMENT 2

ISSUES LIST

NOTE 1: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is either relevant or appropriate. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet, but shall not preclude any other party from calling evidence on the issue.

NOTE 2: On April 6, 2023, the Province released a proposal to combine the Provincial Policy Statement and the Growth Plan into a new land use policy document titled the Provincial Planning Statement. An updated draft of the proposed Provincial Planning Statement was posted to the Environmental Registry of Ontario on April 10, 2024. The consultation period closed on May 12, 2024.The Provincial Planning Statement is anticipated to be released in 2024. As such, additional or different policies may be applicable/relevant should the proposed Provincial Planning Statement come into force and effect. The Issues List may be updated by the Parties, at their discretion, in response to and within 60 days of the Provincial Planning Statement coming into force and effect.

1. Do the Official Plan Amendment (“OPA”), Zoning By-Law Amendment (“ZBL”) and Draft Plan of Subdivision (“Draft Plan”, and collectively, the “Applications”) have appropriate regard for matters of provincial interest, as set out in section 2 of the Planning Act, and paragraphs (h), (h.1), (i), (j), (o), (p), and (r) in particular?

2. Are the Applications consistent with the Provincial Policy Statement, 2020, and sections 1.1.1, 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.4, 1.5, 1.6.7.4, in particular?

3. Do the Applications conform to the Growth Plan for the Greater Golden Horseshoe, and sections 1.2.1, 2.2.1.2(c), 2.2.1.4, 2.2.4, and 2.2.6 in particular?

4. Do the Applications conform to the Regional Official Plan, and sections 2.D.1, 2.D.2, 2.D.6, 2.D.8, 2.D.9, 2.G.10, 2.G.13, 2.G.14, 5.A.25 and 5.A.26 in particular?

5. Is the proposed Station Area Mixed-Use Community Commercial zone appropriate or should the Mixed-Use Community Commercial zone be proposed?

6. Does the development proposal constitute an employment land use conversion? If not, what changes are required to the OPA and ZBA?

7. Does the OPA comply with applicable Planning Act legislation and constitute good planning in respect of the following provisions:

a. Section 2, regarding Development on the Lands;

b. Section 3, phasing;

c. Section 4(a), non-residential uses;

d. Section 4(d), location of residential uses on the ground floor of buildings;

e. Section 4(f), location of surface parking;

f. Section 4(g), building heights;

g. Section 4(h), densities;

h. Section 4(i), employment land conversion;

i. Section 4(j), minimum floor area for commercial and employment uses;

j. Section 4(k), location of commercial and employment floor area; and

k. Section 5, holding provision policies.

8. Should the OPA and/or ZBA permit the following in calculating densities:

a. that the density will be calculated over the entire area of the Subject Lands, including any lands conveyed for parkland and/or allocated for POPS and the public road right of way; and

b. That individual blocks and/or lots may exceed the density of 750 bedrooms per hectare provided that the overall density for the Subject Lands does not exceed 5,452 bedrooms?

9. Does the ZBL comply with applicable Planning Act legislation and constitute good planning in respect of the following provisions:

a. The location and minimum floor area for non-residential uses;

b. The location of residential uses on ground floors;

c. The location of surface parking;

d. Building stepbacks;

e. Minimum ground floor heights;

f. Tower separation distances;

g. Common outdoor amenity areas; and

h. The holding provisions.

10. Are the following proposed Draft Plan Conditions reasonable, relevant, necessary and/or equitable and in accordance with subsection 51(25) of the Planning Act and sections 59 and 59.1 of the Development Charges Act:

a. Special Conditions 0.2, 0.4, 1.2, 2.4, 2.6, 2.11, 3.2, 3.3, 3.4, 4.3, 4.4 - 4.10, 5.0, 6..2, 6.3, 6.5, 6.6, 6.7, 6.8, 6.9, 6.11, 6.14, 6.17, 6.18, 6.19, 7.1.3; and

b. Standard Conditions 1.1.3, 1.1.4, 1.5, 1.6, 1.7, 1.9, 2.1 b), 3.9.1 e), 3.10, 3.11, 4.1, 5.2.1, 5.2.2, 5.7, 5.8, 6.1, 7.3, 7.4, 7.7, 11.1 e), 12.4, 12.12.2, 13.9, 14.2, 15.1.2, 15.2.1, 15.2.3, 15.4, 15.5, 15.7, 15.9, 15.11, 15.12, 18.1, and 18.7.

11. Should Conditions be imposed that would require:

a. Cost sharing of local services installed by the Applicant to the benefit of other future developments; and

b. Development charges credits for growth-related services installed by the Applicant?

12. Are the proposed Applications in the public interest and do they constitute good land use planning?

ATTACHMENT 3

ORDER OF EVIDENCE

1. 65 Northfield Drive Inc.
2. City of Waterloo
3. Region of Waterloo
4. 65 Northfield Drive Inc. (Reply)

ATTACHMENT 4

SUMMARY OF PROCEDURAL DATES