1001229819 Ontario Inc. v. Kitchener (City), 2026 CanLII 16294

ISSUE DATE: February 17, 2026

CASE NO(S).: OLT-25-000766

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: 1001229819 Ontario Inc.

Subject: Minor Variance

Description: To permit the development of 3 townhouse dwellings

Reference Number: A 2025-098

Property Address: 180 Ahrens Street W

Municipality/UT: Kitchener/Waterloo

OLT Case No: OLT-25-000766

OLT Lead Case No: OLT-25-000766

OLT Case Name: 1001229819 Ontario Inc. v. Kitchener (City)

PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Minor Variance

Description: To permit the development of 3 townhouse dwellings

Reference Number: A 2025-099

Property Address: 180 Ahrens Street W

Municipality/UT: Kitchener/Waterloo

OLT Case No: OLT-25-000776

OLT Lead Case No: OLT-25-000766

PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Minor Variance

Description: To permit the development of 3 townhouse dwellings

Reference Number: A 2025-100

Property Address: 180 Ahrens Street W

Municipality/UT: Kitchener/Waterloo

OLT Case No: OLT-25-000777

OLT Lead Case No: OLT-25-000766

Heard: January 12, 2026, by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
1001229819 Ontario Inc. (“Applicant/Appellant”)	Craig Dumart*
City of Kitchener (“City”)	Katherine Hughes

DECISION DELIVERED BY N. RODGERS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal involves an appeal pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (“Act”) from a refusal by the City Committee of Adjustment (“COA”) of an application for multiple Minor Variances (“MV”) for a property known municipally as 180 Ahrens Street W (“Subject Lands”).

2The Appellant’s application sought MV from Zoning By-law 2019-051 (“ZBL”). All the MV noted below seek relief from Section 7.3; Table 7.4 of the ZBL. The MV are necessary to permit the construction of three proposed street townhouse units on a vacant corner lot with frontages on Ahrens St W and Wilhem Street. The MV applied are listed below:

180 Ahrens St. W. (MV #1 – Unit 1)

i) to permit a front yard setback of 4.5 metres (“m”) instead of the minimum required 6.5 m;

ii) to permit an exterior side yard setback of 2.5 m instead of the minimum required 4.5 m;

180 Ahrens St W. (MV #2 - Unit 2)

i) to permit a front yard setback of 3.4 m instead of the minimum required 16.5 m;

ii) to permit a rear yard setback of 6.7 m instead of the minimum required 7.5 m.

180 Ahrens St. W. (MV #3 - Unit 3)

i) to permit a front yard setback of 4.3 m instead of the minimum required 16.5 m;

ii) to permit a rear yard setback of 6.7 m instead of the minimum required 7.5 m.

3The Subject Lands are designated in the City’s Official Plan (“OP”) as Low-Rise Residential and zoned Established Neighbourhood Area in the City’s ZBL.

4At the COA public hearing, planning staff presented their Staff Report in support of the MV application subject to conditions noted below:

a. Prepare a Tree Preservation Plan for the Subject Lands, in accordance with the City’s Tree Management Policy, to be approved by the City’s Manager, Site Plans and City’s Director, Parks and Cemeteries, and where necessary, implemented prior to any grading, servicing, tree removal or the issuance of Demolition and/or Building Permits. Such plans shall include, among other matters, the identification of a proposed building envelope/work zone, a landscaped area and the vegetation to be preserved. If necessary, the plan shall include required mitigation and or compensation measures.

b. That the Owner further agrees to implement the approved plan. No changes to the said plan shall be granted except with the prior approval of the City’s Manager, Site Plans.

5The COA also received oral and written submissions from members of the public in opposition. The public’s concerns were related to traffic safety, intensification, urban design and the quantum of numerically large variances to the ZBL standards. The COA refused all MV.

LEGISLATIVE FRAMEWORK

6This appeal is a hearing de novo. The Tribunal is required to hear submissions and evidence to decide whether to allow the MV based on the applicable legal tests. The Tribunal must have regard to the decision of the COA but is not bound by it.

7The Tribunal is required to assess the MV based on the four legislative tests set out in s. 45(1) of the Act. The Tribunal must ensure the variances sought:

maintain the general intent and purpose of the OP;
maintain the general intent and purpose of the ZBL;
are desirable for the appropriate development or use of the land, building or structure; and
are minor in nature.

8In addition, s. 3(5) of the Act requires that a decision of the Tribunal affecting a planning matter, must be consistent with the Provincial Planning Statement, 2024 (“PPS”). The Tribunal must also have regard to matters of Provincial interest set out in s. 2 of the Act.

PRELIMINARY MATTERS

9During opening submissions, Craig Dumart, who was the authorized representative of the Appellant, informed the Tribunal of a proposed amendment to the MV under appeal. The proposed amendment affects the rear yard setback for MV #2 and MV #3.

10The amendment would modify the rear yard setback to 6.1 m instead of 6.7 m (“MV Revision”) to allow for the second and third storey of those proposed units to be cantilevered above the ground floor. The MV Revision still requires relief from the rear-yard setback provisions of the ZBL.

11The City did not speak to this request nor did Evan Wittmann, a Senior Planner from the City, citing that he had not received sufficient information prior to the Hearing to render any opinion.

SUBMISSIONS AND EVIDENCE

12Prior to the hearing, the City advised the Tribunal it would not be taking a position at the Hearing.

13The Affidavit of Service, affirmed on October 7, 2025, meets the requirements of the Tribunal, and was marked as Exhibit 1. No further notice will be required.

14Prior to the commencement of the Hearing, at the request of the Appellant, the Tribunal issued a Summons for Evan Wittmann to appear before the Tribunal. The Appellant served Mr. Wittmann in person on January 7, 2026, and the Affidavit of Service was marked as Exhibit 2.

15Mr. Wittmann is a Senior Planner with the City and authored staff report DSD-2025-378 dated September 3, 2025, (“Staff Report”), which was marked as Exhibit 3. He was beneficial to the Tribunal as a witness to speak about the Staff Report by providing contextual and land use planning rationale of the City OP and ZBL policies.

Does the MV Maintain the General Intent and Purpose of the Official Plan

16Mr. Wittmann during his evidence focussed on the built form and urban design of the proposed development with respect to adjacent properties in the neighbourhood. Section 15.D.3 of the OP has relevancy to the Subject Lands and provides policy direction to new development within the Low-Rise Residential designation.

17Specifically, Section 15.D.3.3 of the OP requires certain urban design principles to be met when considering new development proposals in designated Low Rise Residential areas. These principles include compatibility of built form with respect to massing, scale, design and the relationship of new construction to adjacent buildings, streets, exterior areas, adequacy of on-site parking and landscaped amenity areas.

18Policy 15.D.3.4 of the OP provides added specificity that new development should be compatible with the character in predominantly established low density neighbourhoods, whereas Policy 4.C.1.12 permits and encourages the integration of street townhouses within the Low-Rise Residential designation in the OP.

19Policy 4.C.1.8 of the OP gives further direction where MV application are applicable. In such cases as in this matter, any new buildings will ensure appropriate massing and scale and are compatible with the built form and the community character of the established neighbourhood.

20Mr. Wittmann’s evidence, concluded that the proposed development and MV provide a scale, transition and urban design the OP encourages and is generally compatible with adjacent land uses in the neighbourhood. The Tribunal is satisfied that the proposed MV maintain the general intent and purpose of the OP policies specifically noted above.

Maintain the General Intent and Purpose of the Zoning By-law

21The Subject Lands are zoned “Established Neighbourhood Area” in the ZBL, requiring the front yard setback of the subject property to be calculated using the “established front yard less one metre”¹. Mr. Wittmann’s focussed his testimony with respect to the relationship of the Subject Lands to an adjacent property identified as 110 Wilhelm Street and referred to Figure 5 of the Staff Report to assist the Tribunal in determining if the front yard setback MV generally meets the thresholds and intent of the ZBL.

22110 Wilhelm Street is setback approximately 17.5 m from the street and is “anomalous to the area”². The established front yard is calculated by taking the average of the existing front yard setback of the property on either side of the Subject Lands. As such, the ZBL standard for the front yards for each of the proposed units are required to be 6.5 m (MV #1), and 16.5 m. (MV # 2 and 3).

23With reference to Figure 5 of the Staff Report, Mr. Wittmann testified that the 110 Wilhelm Street lot has an expansive front yard setback and along with the corner lot fabric of the Subject Lands causes some numerically large variances.

24The Staff Report illustrates that the proposed front yard setbacks requested for MV # 2 and 3 are generally consistent with and comparable to neighbouring properties. The evidence informed the Tribunal that the properties to the north of the Subject Lands have small front yard setbacks of approximately 1.5 m, while the south side of Wilhelm Street to the west of Ahrens Street West is generally 4.0 - 4.5 m. The latter being more consistent with the proposed front yard set back MV requested by the Appellant.

25In summary, the evidence addressed in the Staff Report and presented by Mr. Wittmann afford the Tribunal to conclude that the proposed MV maintain the general intent and purpose of the ZBL.

Desirable for Appropriate Development or Use of the Land, Building or Structure

26The area surrounding the Subject Lands is generally single detached dwellings. Introducing street townhouses to the area is generally desirable and appropriate. Each proposed unit will also provide on site parking. The proposed development and use on the Subject Lands are both encouraged and permitted in the City OP and ZBL.

27The proposed development is infill housing and while many of the surrounding properties are single detached homes, the intensity of the proposal offers a housing typology and scale compatible with adjacent properties. The site planning features also offer sufficient amenity space in the rear yards buffering the proposed development from adjacent properties and the setbacks are generally consistent with adjacent properties.

28It is the Tribunals assessment that the proposed development and MV are desirable and appropriate.

Minor in Nature

29To meet the test of minor in nature, the proposed development must not cause significant negative impact on adjacent properties. Currently, the Subject Lands is a vacant lot. The evidence of Mr. Wittmann stated that the proposed development provides appropriate transition from neighbouring properties. The Staff Report states that the proposed setbacks are generally an improvement over as-of-right ZBL permissions.

30Some of the public’s objections spoke to the numerical deviation of the MV when compared to the ZBL. While this approach may be a form of test to measure the construct of minor, the Tribunals judgment is a determination of legislative and policy tests based on specific facts, merits and the evidence before it.

31The Staff Report spoke to the issue of numerically large variances in some detail and through analysis, showed that the MV are generally compatible with adjacent properties and asserted that the proposed setbacks are an improvement over as-of-right ZBL permissions.

32For the reasons stated above, the Tribunal concludes that the MV are minor in nature.

Regard for Matters of Provincial Interest

33Mr. Wittmann articulated during his testimony that the Staff Report does not refer specifically to matters of provincial interest. However, upon questioning from the Tribunal, he stated that the overall intent of the City OP policies is to have regard to matters of provincial interest.

Consistency With the PPS

34Mr. Wittmann stated that the Staff Report does not speak specifically to consistency with the PPS. However, upon questioning from the Tribunal, he intimated the overall stated purpose of the City OP policies is to be consistent with the PPS.

SUMMARY AND DISPOSITION

35The Tribunal, having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45(18.1.1) of the Act.

36The proposed development represents a modest intensification opportunity that is promoted through OP policy provided the compatibility, design and scale are generally consistent with surrounding land uses. It was the evidence of Mr. Wittmann that such tests are met.

37The Tribunal found the comprehensive analysis of the OP and ZBL policies of the Staff Report vis-à-vis the context of the development proposal to the existing urban fabric and how it addressed the legislative tests to be instructive in rendering this decision.

38Mr. Wittmann offered no additional comprehensive planning evidence and opinion in relation to matters of provincial interest and the PPS by way of the evidence in the Hearing, and there is no reference to these legislative considerations in the Staff Report. However, the Tribunal is well versed in the applicable provincial legislation and policies and has considered the MV in the context of the Tribunal’s knowledge of matters of provincial interest and PPS.

39The Tribunal sought clarification from Mr. Wittmann concerning the conditions of approval requested by the City. The Staff Report states that City staff must be satisfied that a Tree Management Plan/Enhancement Plan be approved by the City prior to issuance of any demolition or building permits. This condition is generally standard in cases where tree removal is necessary to facilitate development. The Appellant did not object to the proposed condition and the Tribunal deems the conditions reasonable.

40The Tribunal accepts the uncontroverted expert opinion evidence of Mr. Wittmann in its entirety and is satisfied that the proposed MV (as amended in paragraph [10]) has due regard for matters of Provincial interest, is consistent with the PPS, meets the legislative test pursuant to s. 45(1) of the Act, represents good planning and is in the public interest.

ORDER

41THE TRIBUNAL, having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45(18.1.1) of the Planning Act.

42THE TRIBUNAL ORDERS THAT the appeal is allowed and the variance(s) to Zoning By law 2019-051 to permit the following variances:

180 Ahrens St. W. (MV #1 – Unit 1)

iii) to permit a front yard setback of 4.5 m instead of the minimum required 6.5 m;

iv) to permit an exterior side yard setback of 2.5 m instead of the minimum required 4.5 m;

180 Ahrens St W. (MV #2 - Unit 2)

iii) to permit a front yard setback of 3.4 m instead of the minimum required 16.5 m;

iv) to permit a rear yard setback of 6.1 m instead of the minimum required 7.5 m.

180 Ahrens St. W. (MV #3 - Unit 3)

iii) to permit a front yard setback of 4.3 m instead of the minimum required 16.5 m;

iv) to permit a rear yard setback of 6.1 m instead of the minimum required 7.5 m.

are authorized subject to the conditions set out in Attachment 1 to this Order.

“N. Rodgers”

N. RODGERS

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

b. That the Owner further agrees to implement the approved plan. No changes to the said plan shall be granted except with the prior approval of the City’s Manager, Site Plans.

Footnotes

Exhibit 3, Staff Report DSD-2025-387, September 3, 2025, Page 254
Ibid, Page 255