Ideal Capital Partners Inc. and 1000249553 Ontario Inc. v. Kitchener/Waterloo (City), 2024 CanLII 97537

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 4th, 2024

CASE NO.: OLT-22-000122, OLT-24-000123

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ideal Capital Partners Inc. and 1000249553 Ontario Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the construction of a 96-unit, 13 storey apartment building.

Reference Number: OPA/23/008/B/ES

Property Address: 93-99 Benton Street & 39-43 St. George Street

Municipality/UT: Kitchener/Waterloo

OLT Case No.: OLT-24-000122

OLT Lead Case No.: OLT-24-000122

OLT Case Name: Ideal Capital Partners Inc. and 1000249553 Ontario Inc. v. Kitchener/Waterloo (City)

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

Applicant and Appellant: Ideal Capital Partners Inc. and 1000249553 Ontario Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the construction of a 96-unit, 13 storey apartment building.

Reference Number: ZBA/23/012/B/ES

Property Address: 93-99 Benton Street & 39-43 St. George Street

Municipality/UT: Kitchener/Waterloo

OLT Case No.: OLT-24-000123

OLT Lead Case No.: OLT-24-000122

BEFORE:

A. MASON MEMBER

Tuesday, the 2nd day of October, 2024

Decision

THESE MATTERS involving appeals under s. 22(7) and 34(11) of the Planning Act, R. S.O. 1990, c. P. 13, as amended regarding the failure of the City of Kitchener to make a decision within the required time period with respect to applications for Official Plan Amendment and Zoning By-Law Amendment concerning the lands located at 93-99 Benton Street and 39-43 George Street having come before the Tribunal for a written hearing to consider a settlement proposal proffered on consent of the Parties on October 2, 2024;

AND THE TRIBUNAL, having received and considered the visual and written materials filed on consent of the Parties, including the affidavit and exhibits sworn and dated on September 23, 2024, of Juliane von Westerholt, a member of the Ontario Professional Planners Institute and Canadian Institute of Planners, in the area of land use planning;

AND THE TRIBUNAL, having considered the uncontested affidavit evidence of Juliane von Westerholt on the nature and scope of the revisions to the original applications arrived at through discussions between the Parties that gave effect to the proposed settlement, including:

a. A floor space ratio for all uses of 5.1 rather than 5.0;

b. A maximum building height of 45 metres and 13 storeys, not including rooftop mechanicals;

c. A minimum front yard setback (St. George Street) of 1.5 metres;

d. A minimum side yard abutting a street (Benton Street) of 0 metres;

e. A minimum rear yard setback of 7.5 metres for the portion of the building above 6 metres in building height and 1.5 metres for the portion of the building below 6 metres in building height;

f. A minimum street line stepback for a tall building of 1.5 metres;

g. A prohibition on geothermal energy systems; and

h. The inclusion of a holding provision to require the completion of a noise study to the satisfaction of the Region of Waterloo;

AND THE TRIBUNAL, finds that it is satisfied that the proposed settlement and revised instruments giving effect thereto:

a. have appropriate regard for matters of provincial interest under s. 2 of the Planning Act, in particular by optimizing the use of existing land and infrastructure within a settlement area;

b. are consistent with the policies and directives in the Provincial Policy Statement 2020, and conform to and do not conflict with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, by supporting intensification in underutilized sites in built-up urban areas that are well served by municipal infrastructure and transit;

c. are in conformity with the Regional Official Plan by supporting policies for re-urbanization of lands located within Major Transit Station Areas and planned to accommodate intensification;

d. are in conformity with the City of Kitchener Official Plan and support public transit; provide additional housing options and contribute toward the development of complete communities;

e. represent good planning and are in the public interest by implementing a high-quality transit-orientated development proposal that provides for additional housing units within a Major Transit Station Area.

NOW THEREFORE:

THE TRIBUNAL ORDERS that the appeals are allowed and the Tribunal approves:

1. Official Plan Amendment No. 136, that amends the City of Kitchener Official Plan (1994), as set out in Attachment 1 to this Order; and

2. the site-specific Zoning By-law Amendment, that amends the City of Kitchener Zoning By-law 85-1, as amended, as set out in Attachment 2 to this Order.

AND THE TRIBUNAL authorizes the Clerk of the City of Kitchener and/or the Clerk of the Region of Waterloo, as applicable, to assign a number to, insert any applicable dates, and format as may be necessary, the instruments at Attachment 1 and 2 for recordkeeping purposes.

“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.

ATTACHMENT A:

OFFICIAL PLAN AMENDMENT

Amendment No. 136 to the Official Plan of the City of Kitchener

SECTION 1 – TITLE AND COMPONENTS

This amendment shall be referred to as Amendment No. 136 to the Official Plan of the City of Kitchener. This amendment is comprised of Sections 1 to 4 inclusive.

SECTION 2 – PURPOSE OF THE AMENDMENT

The purpose of the Official Plan Amendment is to amend the Official Plan by adding Special Policy Area 9 to Map 11 (Cedar Hill Secondary Plan) and by adding associated Policy 13.3.4.9 to the text of the Cedar Hill Secondary Plan.

SECTION 3 – BASIS OF THE AMENDMENT

The basis of the amendment is to facilitate the redevelopment of the Lands for a proposed multi-storey, mixed-used development containing an estimated 96 dwelling units, 43 vehicular parking spaces, and 53 square metres of commercial space at grade and oriented to Benton Street.

SECTION 4 – THE AMENDMENT

The City of Kitchener Official Plan (1994) is hereby amended as follows:

1. Part 3, Section 13.3.4 Special Policies is amended by adding Special Policy 13.3.4.9 thereto as follows:

“9. Notwithstanding the Medium Density Commercial Residential land use designation and policies, applied to the lands located at 93-99 Benton Street and 39-43 St. George Street, the maximum Floor Space Ratio shall be 5.1.

A Holding Provision shall be applied to residential uses and will not be removed through a by-law amendment until such time as the City of Kitchener is in receipt of a Noise Study and implementation measures have been reviewed and approved by the Region of Waterloo.

2. Map No. 11 – Secondary Plan – Cedar Hill Neighbourhood Plan for Land Use is amended by designating the lands, municipally addressed as 93-99 Benton Street and 39-43 St. George Street, as ‘Medium Density Commercial Residential with Special Policy Area 9” instead of ‘Medium Density Commercial Residential’, as shown on the attached Schedule ‘A’.

Schedule ‘A’ to Official Plan Amendment No. 136

ATTACHMENT B:

ZONING BY-LAW AMENDMENT

PROPOSED BY – LAW , 2024

BY-LAW NUMBER OF THE CORPORATION OF THE CITY OF KITCHENER

(Being a By-law to amend By-law 85-1, as amended, known as the Zoning By-law for the City of Kitchener – Ideal Capital Partners Inc. – 93-99 Benton Street & 39-43 St. George Street)

WHEREAS it is deemed expedient to amend By-law 85-1 for the lands specified above;

NOW THEREFORE the Council of the Corporation of the City of Kitchener enacts as follows:

1. Zoning Grid Schedule Number 85 of Appendix “A” to By-law Number 85-1 is hereby amended by changing the zoning applicable to the parcel of land specified and illustrated as Area 1 on Map No. 1, in the City of Kitchener, attached hereto, from Commercial Residential Two Zone (CR-2) with Special Regulation Provision 136R to Commercial Residential Two (CR-2) with Special Regulations Provisions 136R and 807R and Holding Provision (112H).

2. Appendix “D” of By-law 85-1 is hereby amended by adding Section 807R thereto as follows:

“807R. Notwithstanding Sections 45.3.1 and 45.3.6 and Special Provision 136R of this By- law, within the lands zoned CR-2, 136R and shown as affected by this subsection on Zoning Grid Schedule Number 85 of Appendix ‘A’, the following additional regulations shall apply:

3. The maximum floor space ratio for all uses shall be 5.1.

4. The maximum building height shall be 45 metres, and 13 storeys, not including rooftop mechanicals.

5. The minimum front yard setback (St. George Street) shall be 1.5 metres.

6. The minimum side yard abutting a street (Benton Street) shall be 0 metres.

7. The minimum rear yard setback shall be 7.5 metres for a portion of a building above 6 metres in building in height and 1.5 metres for a portion of a building below 6 metres in building height.

8. The minimum street line stepback for tall buildings shall be 1.5 metres.

9. Geothermal energy systems shall be prohibited.”

10. Appendix F of By-law 85-1 is hereby amended by adding Section (112H) thereto as follows: “112H. Notwithstanding Section 45 of this By-law within the lands zoned Commercial Residential Two Zone (CR-2) with Special Regulation Provision 136R and shown as being affected by this subsection on Zoning Grid Schedule Number 85 of Appendix “A”, no residential uses shall be permitted until such time as the following condition has been met and this holding provision has been removed by by-law:

11. A detailed transportation (road) and stationary noise study has been completed and implementation measures recommended to the satisfaction of the Regional Municipality of Waterloo.”

12. This by-law shall come into force and effect on the date of its final passing thereof by Order of the Ontario Land Tribunal and the final passing of Amendment No.136 to the Official Plan of the City of Kitchener by the Ontario Land Tribunal, and in accordance with the Planning Act, R.S.O 1990 c.P.23 and amendments thereto.

Approved by the Ontario Land Tribunal this day of , 2024.

OLT Case No. OLT-24-000123 (lead case no. OLT-24-000122)