LJM Developments Inc. v City of Kitchener

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE: June 30, 2022

CASE NO(S).:

OLT-21-001928

(Formerly PL200379)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O.

1990, c. P.13, as amended

Applicant and Appellant:

Subject:

LJM Developments Inc.

Request to amend the Official Plan - Failure to

adopt the requested amendment

To permit a 13 and 16 storey mixed-use building

1593 & 1603 Highland Rd. W.

City of Kitchener

Description:

Property Address:

Municipality:

Approval Authority File No.:

OLT Case No.:

OP20/001/H/AP

OLT-21-001928

Legacy Case No.:

OLT Lead Case No.:

Legacy Lead Case No.:

OLT Case Name:

PL200379

OLT-21-001928

PL200379

LJM Developments 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:

Subject:

LJM Developments Inc.

Application to amend Zoning By-law No. 2019-

051 - Refusal or neglect of City of Kitchener to

make a decision

Description:

Property Address:

Municipality:

To permit a 13 and 16 storey mixed-use building

1593 & 1603 Highland Rd. W.

City of Kitchener

Municipality File No.:

OLT Case No.:

ZBA20/004/H/AP

OLT-21-001929

Legacy Case No.:

OLT Lead Case No.:

Legacy Lead Case No.:

PL200380

OLT-21-001928

PL200379

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OLT-21-001928

Heard:

January 24, 2022 to February 3, 2022 by video

hearing

APPEARANCES:

Parties

Counsel

LJM Developments Inc.

Russell Cheeseman

Stephanie Fleming

City of Kitchener

Lesley MacDonald

Katherine Hughes

Region of Waterloo

Brian Duxbury

DECISION DELIVERED JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

[1]

The Applicant/Appellant (the “Appellant”) is appealing under s. 22(7) and s.

34(11) of the Planning Act (“Act”) in respect of the City of Kitchener’s (the “City”) failure,

refusal or neglect to make a decision on the Applicant’s application to amend the

Official Plan and Zoning By-law Amendment (“ZBA”) pertaining to lands municipally

known as 1593 and 1603 Highland Road West (“subject property”) in the City. These are

located on the south side of Highland Road West, a regional road.

[2]

The Appellant plans to demolish the existing two residential dwellings and

proposes a residential development with some commercial space in the form of a

combination consisting of 13-storey and 16-storey mixed-use buildings.

[3]

Whereas originally the Appellant sought an official plan amendment, the parties

have agreed that such is not required for the purposes of the proposed development.

Therefore, an appeal regarding official plan amendment(s) to the City’s Official Plan

(“COP”) or the Region of Waterloo Official Plan (“ROP”) was not before the Tribunal at

this hearing and is not adjudicated upon are planned to be adjudicated upon.

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[4]

While each of the two properties has an existing residential dwelling, the subject

lands are designated arterial commercial and are zoned Arterial Commercial ‘COM-3’

within Zoning By-law No. 2019-051 (“ZBL”) by the City. The existing residential uses on

the subject property are considered legal non-conforming. The Appellant requests

approval of a site-specific zoning amendment that will support the proposed

development.

[5]

For the reasons that follow, the appeals are allowed.

WITNESSES AND EXHIBITS

[6]

The Appellant, the City and the Region called a number of witnesses. The

Tribunal affirmed or swore all witnesses as appropriate. All witnesses were duly

qualified in their area of expertise to provide expert opinion evidence accordingly. The

acknowledgement of expert’s duties was confirmed with each witness before their

presentation of evidence.

[7]

1.

The Appellant called the following:

John Ariens to provide expert opinion evidence in the area of land use

planning.

2.

Mark Masschaele to provide expert opinion evidence as a Professional

Engineer with specialized expertise in the area of noise and vibrations.

[8]

1.

The Region called the following:

Melissa Mohr to provide expert opinion evidence in the area of land use

planning. It was noted that Ms. Mohr being an employee needed to

always keep her acknowledgement of expert’s duty in the forefront while

providing evidence.

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2.

Eric Pisani to provide evidence in land use planning with focus on transit

planning. Mr. Pisani being an employee at the Region was also

reminded to keep his acknowledgement of expert’s duty in forefront

while providing evidence.

[9]

The City called the following:

1.

Andrew Pinnell to provide expert opinion evidence in the area of land use

planning. Mr. Pinnell being an employee at the City was remined to keep

his acknowledgement of expert’s duty in forefront while providing

evidence.

2.

Niall Lobley to provide evidence in the area of parks and open space

management, operations, and policy. Mr. Lobley being an employee at the

City was reminded to keep his acknowledgement of expert’s duty in

forefront while providing evidence.

[10] The following is a list of exhibits marked during evidence presentation by the

parties:

Exhibit 1:

Exhibit 2:

Joint Document Book

Google Area Maps (two maps marked as Exhibit 2A and Exhibit

2B)

SITE CONTEXT

[11] Mr. Ariens provided information on the site context. The subject property has 80

metres (“m”) frontage on Highland Road west and has a depth of about 100 m

representing a site area of about 0.8 hectares (‘ha”) or approximately two acres. The

subject property is located within an area bounded by Highland Road West to the North,

Ira Needles Boulevard to the East and Trussler Road to the South-Southwest. The

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subject property is about 500 m from the roundabout intersection of Highland Road

West and Ira Needles Boulevard to the Northeast. There exists a large high rise building

and generally different residential dwelling types on either side of Highland Road West

and east of Ira Needles Boulevard.

[12] There is a shopping plaza with a variety of small and large commercial and retail

establishments to service the residential communities in the vicinity. These

establishments are located starting about 200 m from the Ira Needles Boulevard and

Highland Road West intersection.

[13] Along the same side of Highland Road West where the subject property is

located, there is a total of eight lots with mix of uses including three residential non-

conforming properties, a self storage facility, a new commercial building, a food limited

retail warehouse and an aircraft parts manufacturing/assembling establishment. On the

opposite side to the north of Highland Road West exist a commercial cold storage

facility, a supply and maintenance facility, a martial arts centre, a new printing services

company, etc.

[14] Generally south and abutting the subject property is a mixed residential low-rise

community in the area of Rauch Court. There are more residential dwellings in the

remainder of the area to the northeast and southeast of Rauch Court. There is a large

Waldau Woods Park conservation area inclusive of a small playground. There is a

potential municipal service unused connecting six-metre-wide strip area that extends

from Rauch Court to the subject property.

STATUTORY TESTS FOR OPA AND ZBA APPEALS

[15] This is a hearing de-novo regarding the Official Plan Amendment (“OPA”) and

ZBA sought by the Appellant. The Tribunal must determine answers to the following to

determine these appeals:

1. Do the OPA and ZBA have appropriate regard for the Provincial Interest

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and are consistent with the Provincial Policy Statement 2020 (“PPS”)?

2. Do the OPA and ZBA conform with the Growth Plan for the Greater

Golden Horseshoe 2019 as amended (the “Growth Plan”)?

3. Do the OPA and ZBA conform with the Region of Waterloo Official Plan

(“ROP”)?

4. Does the OPA satisfy the KOP requirements for assessment of OPAs and

does ZBA conform with the City of Kitchener Official Plan (“KOP”), as

amended by the OPA?

5. Do the OPA and ZBA represent good land use planning?

EVIDENCE

[16] It was agreed by all parties that the proposal does not require amendment to the

ROP. It was also confirmed that parking, transportation and servicing were not identified

as relevant issue in the context of the proposed development.

[17] This hearing was governed by a Procedural Order (“PO”) previously approved

and issued by the Tribunal. The parties identified and organized the issues into

separate six themes. The evidence was generally provided by the experts accordingly

and they also provided concluding summary opinion evidence in relations to the

determinative statutory tests based on their analysis o the various themes.

[18] The PO was not organized in the form of a hierarchical planning regime starting

with the Act , the PPS, the Growth Plan and the applicable Official Plans. It was

organized in themes. The evidence was presented in the form of consideration for the

six themes which identify the issues in the PO follow by considerations of Provincial

Interest per s. 2 of the Act and evidence regarding applicable aspects of good land use

planning.

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[19] In this decision of the Tribunal, this flow is continued, and evidence is addressed

per the themes; evidence on regard for provincial interest; and regarding the proposed

development’s attributes vis-a-vis good land use planning.

THEMES

THEME 1: Planned Community/Urban Structure and Managing and Directing Land Use

andGrowth:

Are the proposed Official Plan and Zoning By-law Amendments

(Applications) consistent with the Provincial Policy Statement, 2020

(PPS), including Sections 1.1.1(a,c, e, f, g, i), 1.1.3.2 (a, b, c, d, e, f),

1.1.3.3, 1.6.7.4?

Do the Applications conform with A Place to Grow: Growth Plan for the

Greater GoldenHorseshoe, 2020 (Growth Plan), including Sections

2.2.1.2 (a (i and iii), c), 2.2.1.3 (a, b, c, e), 2.2.1.4 (a, b, c, d (i, ii, iii), e,

f), 2.2.2.3 (a, b, e), 2.2.3 (1, 2(b)), and 2.2.4 (1, 2, 3.b)?

Do the Proposed Official Plan and Zoning By-law Amendments

(Applications) implement the Planned Community Structure as set out in

Section 2.B, 2.B.2 and 2.D.1(a, c, f) of the Region of Waterloo Official

Plan (ROP)?

Do the Applications conform to Section 2.B, 2.B.2 and 2.D.1 (a, c, f, h)

of the ROP?

Is the land use and density of development proposed in the Applications

appropriate for the location of the subject lands?

Do the Applications conform to the City of Kitchener Official Plan,

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including Sections2.B.3 (1, 2, 4, 5), 2.B.4, 3.C.2 (all subsections)?

Does the requested zoning under By-law 2019-051 support the planned

function of the area in accordance with the City of Kitchener Official Plan

and the PPS?

[20] Mr. Ariens opined that the proposed ZBA is consistent with the PPS 2020

policies 1.1.1, 1.1.3.2,1.1.3.3 and 1.6.7.4. He testified that that the proposal represents

a small infill development. He testified and highlighted that it is suitable for higher

density consistent with policy 1.1.3.3 of the PPS 2020. He added that the development

plans include sufficient bike storage, the site is nearby to an existing bus stop, there is a

marked paved shoulder on the south side of Highland Road West that allows for direct

access to a paved shoulder that is for possible bicycle use.

[21] Mr. Ariens testified that the proposed ZBA conforms with the Growth Plan policy

2.2.1.3 which directs that the growth and intensification will be focussed along locations

adjacent to transit corridors. He stated that the subject property is about 500 m from the

main transit corridor on Ira Needles Road while a bus stop for a connecting regional

road is close by on Highland Road West. He further testified that the proposal includes

a provision for 1052 square metres (“sq m”) of commercial space. He stated that this in

part adds to the existing function of the arterial commercial designation of the subject

lands.

[22] Mr. Ariens reviewed the ROP and opined that the ZBA conforms with the ROP.

He testified that the subject property is in the urban designated area and is part of the

growth and re-urbanization plans citing policy 2.0.1 in the ROP. He further added that

the subject property is on a regional road with existing services. He noted that the ZBA

will change the zoning from arterial commercial to mix-use commercial and that the

minor change does not jeopardize the ROP. He cited examples that there was very little

that differentiated arterial commercial from other commercial designations and that

arterial commercial is a legacy designation which is not flourishing on this approximately

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500 m segment of Highland Road West. He testified that the main driver for the arterial

commercial being the automobile driven accesses to commercial services is

substantially nonexistent on this stretch of Highland Road West. He referred to his

context review which shows most existing uses inclusive of legal non-conforming

residential uses that overall, this part of Highland Road West does not align with arterial

commercial envisaged uses.

[23] Ms. Mohr stated that such intensification is more appropriate for other priority

urbanization areas. However, Ms. Mohr opined that to implement the proposed

development does not require any amendments to the ROP. Under questioning she

replied that indirectly the proposed development conforms with the ROP.

[24] In reviewing the KOP aspects for Theme 1, Mr. Ariens stated that auto oriented

and land extensive uses exist across multiple commercial zones and there is nothing

this segment of Highland Road West inclusive of the subject property adds to or takes

away from the KOP objectives or policies.

[25] Mr. Ariens summarized and opined that with respect to Theme 1, the proposed

ZBA satisfactorily addresses all issues and positively supports the specific identified

policies in the PPS 2020, the Growth Plan, the ROP and the KOP.

[26] Mr. Pinnell stated that the subject lands are located within an automobile-

oriented area on the periphery of the city. The lands on the south side of Highland

Road, including the subject property, are designated Commercial on Map 3 – Land Use

and are identified as Arterial Corridor on Map 2 – Urban Structure. He added that the

planned function of Arterial Corridors is to provide for a limited range of retail and

service. However, Mr. Pinnell agreed that the uses on the Subject Property and many

others on south side of Highland Road West in the 500 m stretch of this road, do not

conform with the designations and zoning for arterial commercial uses. He stated that

the mix of property uses include manufacturing, residential and legal non-conforming

commercial.

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[27] Mr. Pinnell opined in consideration of the PPS that the proposed development

would lack facilities for pedestrian and cycling uses with possible safety issues in

contradiction of PPS policies. He further testified that the proposal is not consistent with

policy 1.1.3.2 and would lead to unjustified and uneconomic expansion.

[28] Mr. Pinnell opined that residential uses are not permitted under the

Commercial/Arterial corridor policies. He added that there would be compatibility issues

as a result. Mr. Pinnell emphasized that the intensification areas are well identified

which should be the focus for such development. He characterized the proposed

development as creating an orphaned residential cluster versus the planned function

uses.

[29] Mr. Pinnell testified that in the context o the Growth Plan, the proposal would not

allow for the planned function mix of uses and would be particularly detrimental to

commercial uses expansion. Mr. Pinnell reviewed the identified policies o the KOP and

testified that it reflects in kind the higher level policies of the PPS and the Growth Plan

and the proposed development would not conform with the KOP.

[30] Mr. Pinnell opined in summary that the proposed Official Plan and Zoning By-law

Amendments are not consistent with the Provincial Policy Statement and do not

conform to the Growth Plan and City Official Plan. The proposed residential land use is

not appropriate for this area and the requested zoning does not support the planned

function of the area, as set out in the City’s Official Plan and the PPS.

Theme 2: Infrastructure (Sidewalks, Cycling Routes, Transit) and Parks in area to

support the proposed development:

Is the development proposed in the Applications appropriate in the

location of the subject lands given the existing and planned

transportation infrastructure such as transit?

Are the Applications consistent with Sections 1.1.1 (a, c, e, f, g, i),

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1.1.3.2 (a, b, c, d, e, f), 1.5.1 (a, b) and 1.6.1 (all subsections) of the

PPS?

Do the Applications conform to Sections 2.2.1.4 (d (i, ii, iii), e, f), 3.2.1.1

and 3.2.2.1 of the Growth Plan?

Do the Applications conform to Section 2.D.1 (a, c, f, h), 3.B.1, 5.A.1,

5.A.2, 5.A.6,5.A.8, 5.A.9, 5.A.14, 5.A.15 and 5.A.22 of the ROP?

Do the Applications conform to the City of Kitchener Official Plan,

including Sections 8.C.1.1, 8.C.1.3, 8.C.1.4, 8.C.1.11, 8.C.1.13,

8.C.1.27, 13.C.1.7?

[31] Mr. Ariens stated that the development would have access to their side of

Highland Road West a paved and marked shoulder. This albeit not most suitable for

pedestrians does allow for bicycling as it is currently so used by limited cycling traffic.

He added that there already exists a bus service which at present is geared towards

rush hours but is planned to be expanded and could be further expanded as the

transiting requirements for the proposed residences develop.

[32] Mr. Ariens informed the Tribunal in reviewing the policies of the PPS and the

Growth Plan that the Appellant has offered to pay for the development of a suitable

sidewalk to the Ira Needles Boulevard/Highland Road West traffic circle where the

multiuse boulevard trails become accessible. He opined these initiatives and existing

infrastructure allow for suitable servicing of the needs of the future users of commercial

space as well as residential occupants. In this way they could further interwork with

available pedestrian, cycling and transportation infrastructure.

[33] In reviewing the ROP, Mr. Ariens stated that the City has updated its master plan

inclusive of trails and cycling paths and that the ROP needs to be updated accordingly.

He opined that the City plans show possible expansion of trail and such facilities access

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to this section of Highland Road West where the development is proposed. Mr. Ariens

further opined that given the redesignation of lands to employment north of Highland

Road West, opposite of the proposed development, it behooves on the City and the

Region to further develop and plan for interconnections to pedestrian, cycling and such

paths and trails which are in proximity to these areas.

[34] Ms. Mohr testified that the subject site is not on an existing or planned cycling

route. She testified that the region has accountability along the Highland Road West

regarding road shoulder or path improvements. She added that no transit corridor

changes were expected, and none were planned regarding transportation infrastructure

in the regional planning horizon to 2041.

[35] Mr. Pisani provided evidence regarding transit planning. Mr. Pisani stated that

Highland Road West is part of a service that originates from Wilmot and is considered a

limited rural route. He stated that there is a stop to the West of the Subject Property in

the vicinity of Heroux Devtek. He added that the mini-busses generally run in the peak

hours during the morning and the afternoon for a total of nine roundtrips per day. Mr.

Pisani testified that this translates to bus running at about every 45 minutes versus Ira

Needles Boulevard as an urban transit service could see busses running every 15

minutes. Mr. Pisani testified that plans are in place to increase the frequency of trips at

17 roundtrips per day over a peak-extended timeframes each weekday with no service

on weekends.

[36] Mr. Pisani also reviewed the bus service along Ira Needles Boulevard with full

non-rural service. There was general consensus between the experts that the nearest

stop on Ira Needles Boulevard is situated at about 400-500 m from the Subject

Property. Whereas the Appellant postulated that it would be considered a reasonable

walking distance, Mr. Pisani did not fully agree considering lack of pedestrian paths

along part of Highland Road West.

[37] Mr. Pisani commenting on the Appellant suggestion that they are willing to fund a

pedestrian path to connect their property to Ira Needles Boulevard stated that there are

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few steps that are needed including a feasibility assessment, an environmental

assessment, and operational maintenance and upkeeping of such a pedestrian facility.

Mr. Pisani during cross-examination concurred that a temporary arrangement may be

possible without an environmental assessment. He also concurred that paved shoulder,

as on the south side of Highland Road West, is identified for possible cycling uses on

Regional road infrastructure even though it may no be the best arrangement versus

dedicated bicycle paths.

[38] Mr. Lobley testifying for the City regarding parks and open spaces stated that the

area is not well served. He testified that the Rauch Court and the linked neighbourhood

is already deficient in parks and playgrounds with respect to goals established by the

City. Referring to Waldau Woods, Mr. Lobley stated that the approximately 4.8 ha area

does have a small play structure but it is a natural area for walking and visiting for

strolls. During cross-examination Mr. Lobley confirmed that the deficiencies have

persisted for more than a decade dating back to the time the subdivision to the south of

the Subject Property was built. He confirmed that whereas there is deficiencies

regarding neighbourhood park and open space facilities, the upper level parks and

community centres are accessible within their defined geographic coverage vis-à-vis the

Subject Property and the neighbourhood to the south. He stated that these include the

West Meadows Park situated about 950 m away as well as a Rolling Meadows facility

located about 1.4 km away.

[39] Mr. Lobley opined that the City prefers to have planned parks and community

open spaces to be in place or planned before any residential dwellings become

available. With limited space in the neighbourhood there were few opportunities to do

so. He agreed that the City accepts cash-in-lieu as means to opportunistically create

facilities for residents. He added that the City has in the past in this neighbourhood

worked with Ontario Hydro which has substantive powerline corridor in the vicinity. He

stated that while the Ontario Hydro corridor has limitation with respect to setting up

playground structures, picnic areas, etc., it can provide for possible development of

trails and paths. He testified that the City will be in review of the Ontario Hydro corridor

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master agreement in the near future. He opined that cash-in-lieu for park space will be

of benefit to the neighbourhood in this area through possible improvements for residents

and he would welcome it.

[40] In response to possible use of a covered service corridor that interposes between

the Subject Property and Rauch Court for access to possible commercial services

planned at the Subject Property as well to access other trails and paths north of

Highland Road West; Mr. Lobley stated that he has not fully assessed its possible utility.

He stated that if such a corridor could suitably accommodate pedestrian and bicycling

accesses with permanent easement through the Subject Property that it could provide

interconnection between two public areas on Highland Road West and the Rauch Court.

He stated that the potential to develop and interconnect the community south of

Highland Road West to possible bicycling network and trails that exist further north of

Highland Road West could possibly be facilitated this way.

[41] Mr. Lobley concluded that the area lacks good links to facilities and trails and is

deficient in parks. He stated that the proposed development will lead to worsening of

situation in terms of meeting City objectives for parkland. Under cross-examination he

confirmed that in some ways this situation was of City’s own making when community

around Rauch Court and south of there was developed without meeting parks and

community space objectives.

[42] Mr. Pinnell repeated many of his assertions in the context of the PPS and the

Growth Plan that he made as part of his evidence in Theme 1. He opined that the

proposal does not lend itself to the planned development of healthy, active

communities. He concurred with the evidence of Mr. Lobley and Mr. Pisani in this

regard. He provided further emphasis in his evidence to pedestrian connectivity and

identified existing deficiencies given a paved shoulder is the only maintained facility

available for such uses and general lack of infrastructure linked for such purposes.

[43] Mr. Ariens reviewed the Theme 2 identified KOP policies. He opined that the

KOP already recognizes the importance of pedestrian and cycling accesses for this part

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of Highland Road West. He added that the cash-in-lieu and development charges

should further support such improvements. He stated that the possible pedestrian

access to Rauch Court over a covered servicing access could enhance further choices

for residents of the proposed development. He opined that this would provide the users

of the proposed development with services no different than what is currently available

to residents on Rauch Court and the surrounding existing development.

Theme 3: Compatibility of Proposed Residential Use with Adjacent Planned Industrial

and Commercial Lands, and Existing Industrial and Commercial Uses:

Is the development proposed in the Applications compatible with the

adjacent existing and planned industrial land uses, consistent with

Sections 1.2.6.1, 1.2.6.2 (all subsections) and 1.3.2.1 of the PPS, and in

conformity with Section 2.2.5.8 of the Growth Plan and Section 2.G.10

of the ROP and applicable guidelines?

Has it been demonstrated that the Ministry of Environment Conservation

and Parks (MECP), “D-6 Compatibility between Industrial Facilities”

been complied with; any potential adverse impacts can be minimized

and appropriately mitigated and, any potential impacts to industrial,

manufacturing or other uses are minimized and mitigated?

Do the Applications conform to the City of Kitchener Official Plan,

including Sections 6.C.3.1, 6.C.3.5?

Does the requested zoning under By-law 2019-051 allow uses that are

compatible with existing uses, permitted uses, and proposed / planned

uses in the area?

[44] It was submitted by the Appellant and agreed to by the City and the Region that

that industrial use sensitivity in the context o the proposed development is not an issue

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at this hearing.

[45] Mr. Ariens stated that he adopts the expert opinion evidence of Appellant witness

Mr. Masschaele. In his evidence Mr. Masschaele opined that sufficient separation

distances exist from the proposed development to existing possible conflicting use or

any uses in the future per planned designations for lands north of Highland Road West

which are directly opposite of the proposed developments. He provided analysis with

respect to the applicable D-Series Guidelines which was uncontroverted as no other

qualified witnesses in this specialization were presented by the City or the Region.

[46] Mr. Ariens noted that there are numerous instances where sensitive land uses

already co-exist with other impacting uses like landfills. He cited a significant residential

development adjacent to the Region’s landfill site. Mr. Ariens further noted that there

were no objections received from nearby industrial/commercial users and that no one is

appearing before the Tribunal with and comments or submissions.

[47] Mr. Ariens stated that existing adjacent users; Heroux Devtek and Spinal

Garage; are also separated from the proposed development by water bodies on either

side of the proposed development. Mr. Masschaele opined that the existing businesses

operating as Heroux Devtek and Erb Cold Storage are considered Class II in the

context of D-Series guidelines and the proposed development and he opined that based

on his analysis the proposed development does not impinge in terms of setbacks from

these businesses.

[48] Mr. Ariens opined that a mixed use building like the proposed

commercial/residential can co-exist without any compatibility issues.

[49] Ms. Mohr stated that she was not an expert to provide opinion evidence

regarding the use of D-6 guidelines for compatibility between the proposal and existing

plus possible planned uses in the vicinity. She did suggest that avoidance is an

alternative given that other locations were more suitable for intensification. Under cross-

examination Ms. Mohr confirmed that there is nothing in the ROP which restricts

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intensification along Highland Road West where the Subject Property is located. Ms.

Mohr during redirect stated that there is potential for the proposed development to

create growth or change issues for businesses in the vicinity like Erb Cold Storage.

[50] Mr. Pinnell opined that the proposed development is in-consistent with policy

1.2.6.1 of the PPS. He concurred with the evidence of Ms. Mohr that the proposal with

sensitive residential uses could restrict future commercial and employment uses as

allowed under the KOP and the associated zoning permissions.

Theme 4: Planning: and Protection of Employment Lands and Commercial Lands:

Are the Applications consistent with the PPS, including Sections 1.2.6.1,

1.2.6.2 (all subsections), 1.3.1 (all subsections), 1.3.2.1, 1.3.2.2?

Do the applications conform with the Growth Plan, including Sections

2.2.5.1 (all subsections), 2.2.5.6, 2.2.5.7 (c), 2.2.5.8?

Do the applications conform to Section 2.G.10 of the ROP?

Do the Applications conform to the City of Kitchener Official Plan,

including Sections 5.C.1.1 (g, h), 5.C.1.3, 5.C.1.4, 5.C.1.8, 5.C.1.9,

15.D.5.1, 15.D.5.3, 15.D.5.5, 15.D.5.8, 15.D.5.15, 15.D.5.16 (all

subsections), 15.D.5.17 (all subsections), 15.D.5.19, 15.D.5.20 (all

subsections), 15.D.5.21 (all subsections), 15.D.6.1, 15.D.6.2, 15.D.6.3,

15.D.6.4, 15.D.6.14?

Does the requested zoning under By-law 2019-051 allow uses that are

compatible with existing uses, permitted uses, and proposed / planned

uses in the area?

[51] Mr. Ariens testified that the land on south side of Highland Road West where the

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subject property and the adjoining properties are located, does not carry an employment

zone or employment lands designation. He stated that the subject site is designated

“arterial commercial”. Mr. Ariens opined that the proposed development thus causes no

changes to the status quo with respects to issues specific to employment lands.

[52] Mr. Ariens opined that based on the land uses in this segment of Highland Road

West with arterial commercial designation, there is very little that is flourishing or

established save for a self-storage business and a gas bar as examples.

[53] In reviewing Policy 15.D.5.16 and 15.D.5.17, Mr. Ariens noted that majority of

uses specified in arterial commercial designation are generously available across many

different land use designations. The only aspect that arterial commercial specifically

differentiates with is that it does not include residential dwellings. Mr. Ariens noted that

form a handful of properties covered on Highland Road West with arterial corridors

designation, there properties have existing residential dwellings, albeit legal non-

conforming. He added that the purpose of the OPA is to seek permission for residential

uses while commercial uses as envisaged in the proposed development are already

permitted.

[54] In the context of policies such as 15.D.6.1 through policy 15.D.6.4 regarding the

protection of employment areas, Mr. Ariens opined that he subject ands are not

designated for Employment.

[55] Mr. Ariens again referred to the testimony of Mr. Masschaele’s and analysis

including D-6 Guidelines and associated noise studies opined that adequate separation

distances are also proposed to be supplemented by mitigation measures regarding

noise for the proposed development.

[56] Mr. Ariens concluded and opined that the existing employment lands north of

Highland Road West can continue to exist and operate without detriment from the

proposed development.

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[57] Mr. Pinnell reviewed the policy framework and opined that the proposal being

majority residential is incompatible with the existing uses on Highland Road West on the

south side as well as established or employment uses in areas on the north side of

Highland Road West. Like Ms. Mohr, Mr. Pinnell informed that he was not qualified to

provide opinion or expert evidence on the application and interpretation of the Provincial

D series guidelines.

Theme 5: Compatibility of Proposed High Density Residential Use with Adjacent Low

Rise Residential Uses:

Do the Applications conform to the City of Kitchener Official Plan,

including Sections 4.C.1.8 (a, b, d, e, f), 4.C.1.9?

Are the requested zoning regulations under By-law 2019-051 (e.g.,

setbacks, lot coverage) appropriate and compatible with surrounding

uses?

[58] Mr. Ariens in considering the KOP policies noted that proposed stepbacks in the

rear, with skinny side facing the existing residential dwellings on Rauch Court and the

gradually rising towers with floors having increasing step backs would allow for

compliance with the need to meet 45 degree angular plane and will thus ensure that any

overlook and privacy concerns are minimized. He referred to the angular plane analysis

provided by the Appellant project architect. He noted that minor protrusions on the

upper floor of the towers, but this is not habitable space.

[59] Mr. Ariens reviewed various aspects o the planned designs which would ensure

that the proposed development in the form of towers is compatible with existing low rise

residential dwellings. He stated that the lowest 2 ½ floors will provide for indoor parking

with no habitable openings. These will be setback 5.28 m from the common lot line and

shielded from views by fencing and a landscaped buffer. He added that mature trees

will be planted as part of any future site plan application thereby creating a tree screen.

He testified that the parking garage wall can also become a “green wall” with the

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introduction of climbing plants and ivies. Different brick patterns and textures can also

add architectural interest to this wall. He opined that the proposed development is

designed to suitably co-exist with surrounding residential uses.

[60] Mr. Ariens reviewed that proposed development in the context of street presence

on Highland Road West as well as other commercial uses in the neighbourhood. Mr.

Ariens stated that the ground floor commercial/office uses will further animate the street

scape and the front yard setback will result in a very aesthetically pleasing streetscape.

The division of the building into two towers also reduces the overall mass and bulk of

the building. The podium lower floors also match the mass of the adjacent self storage

warehouse located to the immediate east.

[61] Mr. Ariens opined that in consideration of issues in Theme 5, the proposed

development conforms with the required KOP policies and that the proposed zoning

requirements are appropriate and suitable in the context of the surrounding uses.

[62] Mr. Pinnell testified that the proposal would allow 16 and 13 storey residential

towers (i.e., 50 metre building height) with a gross floor area of 42,273 sq m. He added

that while the Floor Space Ratio (“FSR”) has not been provided by the Appellant he

estimates it to be approximately 5.2 (42,273 m²building floor area / 8,121 m²lot area).

He compared it to the Mixed Use Three (MIX-3) Zone where the highest intensity Mixed

Use zone and its regulation limit building heights to 10 storeys (i.e., 32 metres) and FSR

to 2.0.

[63] Mr. Pinnell opined that opinion that the proposed applications would facilitate

residential development/use that is not appropriate in massing and scale and is not

compatible with the built form and the community character of the established

neighbourhood. He added that the proposed applications would allow development that

is not sensitive to the exterior areas of adjacent low rise residential uses and does not

respect existing character of the residential neighbourhood to the south or the Arterial

Corridor/Commercial neighbourhood on Highland Road. Sensitivity to surrounding

context, as well as compatibility, are lacking.

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Theme 6: Considerations for Official Plan Amendments

Do the Applications conform to the City of Kitchener Official Plan, including

Section17.E.2.16 (all subsections)?

[64] Mr. Ariens adopted his witness statement in full and referred to it in reviewing

Theme 6. He stated that all necessary background and technical reports and studies as

were identified by City and Regional Staff. The redevelopment of the subject lands is in

conformity with Provincial and Regional policies and plans. Intensification is directed

throughout the built up area and not exclusively to designated intensification areas or

corridors. The need for a Regional Official Plan amendment was never identified by

Regional Staff.

[65] Mr. Ariens testified that the redevelopment is also in conformity to the vision,

goals, objectives and policies of the Plan and there is a need for the proposed use

particularly as the City and Region now need to accept additional population growth to

2051.

[66] Mr. Ariens testified that the subject lands are suitable for the intended use and

there are no physical or natural heritage constraints to development. Land use

compatibility with existing and planned uses is achieved and adverse impacts are

avoided or can be mitigated.

[67] Mr. Ariens reviewed municipal and utility services and testified that these were

available and community infrastructure was also readily available. He alluded to the

Appellant offer to assist with adding pedestrian path which would if implemented

enhance pedestrian and other non-motorized uses along Highland Road West with

possible connectivity to the trails and paths network along Ira Needles Boulevard and

the Hydro corridor.

[68] Mr. Ariens further reviewed this Arterial Corridor characteristics and stated that it

is ideally suited for mixed use development. He opined that this Arterial Corridor is

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clearly not functioning as an “highway commercial” area as is seen by past, existing,

and recent development activity. He added that reduced dependency on private

automobiles together with the availability and proximity of transit sets a desirable

precedent for similar redevelopment. He opined that the full range of arterial commercial

uses are allowed in other locations and therefore there is no concern about removing a

limited supply of land capable of accommodating this use.

[69] Mr. Ariens summarized and opined that with respect to Theme 6, the

redevelopment of the subject lands is in conformity to the Official Plan policies identified

when considered in the context of requested OPA to the KOP.

[70] Mr. Pinnell reviewed his analysis section 17.E.2.16 (Exhibit 1, page 3213, and

para 130) and stated that the OPA does not meet the requisite requirements for site-

specific amendments to the City’s OP. He applied parts of his testimony from Themes 1

through Theme 6 and opined that the OPA does not conform to Policy 17.E.2.16 of the

KOP.

PROVINCIAL INTEREST

[71] Mr. Ariens reviewed s. 2 of the Act. He stated that the applicable provincial

interest clauses are s. 2 (e, f, g, h, i, j, k, l, m, o, p, q, r and s). He opined that the

proposed development has regard for the provincial interest as it provides for:

Efficient and compact land use with more than 400 residential dwellings

with a mix of commercial uses;

Good development as there are no technical deficiencies with respect to

servicing and efficiency will be achieved as services shared with large

number of residential dwellings;

Recycling and thus reduction in waste;

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A development that will be ADA compliant and will also contribute

towards overall improvement for the neighbourhood for pedestrians and

other uses through cash-in-lieu and development charges;

Use of existing educational and school resources to serve the resident

in the proposed development;

Different residential unit types as 1, 2 and 3 bedroom configurations

adding to choices and possible greater affordability of housing types

versus the semi and detached that exist in the neighbourhood;

Live/work proximity possibilities with substantial lands north of Highland

Road West being designated employment uses;

Well-being of the province, the region and the City is contributed

towards through development charges and cash-in-lieu contributions;

Duly considered development proposal having been reviewed with other

bodies with interest including the appropriate conservation authority;

No safety issues are incurred with as a minimum a paved shoulder

access being available for interconnecting with multi-use cycling and

pedestrian paths on Ira Needles Boulevard;

No restriction on adjacent and vicinity land uses as presently

designated;

A sustainable land use for accommodating commercial and residential

mix;

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A well designed built form as noted by the City staff and provides for

active presence on the street; and

A move away from an automobile centric arterial commercial restricted

use that does not flourish in the area with a mix use that fits better. The

change does not overly restrict possible uses allowed under arterial

commercial designation as nothing is excluded from possible allowed

uses and only residential dwellings as a permitted use is added through

the OPA on a site specific basis.

[72] Mr. Pinnell reviewed s. 2 of the Act and stated that the following subsections

were applicable for consideration that the proposal is required to have regard for:

(f) the adequate provision and efficient use of communication, transportation,

sewage and water services and waste management systems;

(h) the orderly development of safe and healthy communities;

(h.1) the accessibility for persons with disabilities to all facilities, services and

matters to which this Act applies;

(i) the adequate provision and distribution of educational, health, social, cultural

and recreational facilities;

(k) the adequate provision of employment opportunities;

(o) the protection of public health and safety;

(p) the appropriate location of growth and development;

(q) the promotion of development that is designed to be sustainable, to support

public transit and to be oriented to pedestrians;

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(r) the promotion of built form that,

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible,

attractive and vibrant;

[73] Mr. Pinnell opined that there was not an adequate provision of transportation

services. He added that there could also be negative impacts on employment lands

north of Highland Road West. Mr. Pinnell stated his concerns regarding pedestrian and

non-automobile users because of limited dedicated paths or trails and noted that only

the regional road paved shoulder was available on Highland Road West till it meets on

the east with Ira Needles Boulevard. Mr. Pinnell confirmed that the was not an architect

or an urban planner but he believed that the “dragon back” design and reduced

setbacks do not create a sense of place or are well designed.

ANALYSIS AND CONCLUSIONS

[74] The oral and evidence and written evidence in this hearing was organized

towards the six themes. Each theme had a mix of policies, plans and by-law aspects.

Whereas it may have been good way to portray and assess the proposed development,

the statutory tests require that the Tribunal must apply in its determination wholesome

and totality of the planning framework policies and plans whether it is the provincial

interest, the PPS, the Growth Plan, the ROP or the KOP and the ZBL.

[75] The Tribunal in its determinations has depended upon the information on file, all

the exhibits, the oral evidence at the hearing, and submissions of all the parties and

others. The Tribunal has extracted from the evidence presented in each theme to

determine regard for the provincial interest, consistency with the PPS, conformity with

the Growth Plan, conformity with the ROP, conformity of the OPA regarding its

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appropriate evaluation as directed in the OPA, conformity of the ZBA with the KOP, and

consideration for good land use planning.

Regard for Provincial Interest

[76] In his evidence, Mr. Pinnell raises apprehensions regarding safety of residents,

impacts on possible employment uses and compatibility of the proposed development

with existing residential plus commercial uses. Mr. Ariens have used the evidence on

file to show that the services for all are legally available albeit these could be improved

referring to possible proposed contribution by the Appellant towards improving

pedestrian and cycling infrastructure between the subject property and Ira Needles

Boulevard to the east. Mr. Pinnell also referred to the uncontroverted expert opinion

evidence of Mr. Masschaele which establishes that there are no negative impacts when

D-series guidelines were used for assessment. Mr. Mobley emphasized that cash-in-lieu

could be helpful in community services in the area. Mr. Pisani presented possible

improvements in public transportation access. There is no question that changes and

improvements would be desirable but based on the evidence presented it was shown

that these are no more than what is expected in intensification oriented developments

as proposed.

[77] Having so considered the requirements under s. 2 of the Act and the evidence

before it, the Tribunal finds that the proposed development as implemented through the

requested OPA and ZBA has due regard for the Provincial Interest.

Consistency with the PPS

[78] Across the six themes some of the specific PPS policies considered include the

following (extracted from the PO and Issues List);

 Are the proposed Official Plan and Zoning By-law Amendments (Applications)

consistent with the Provincial Policy Statement, 2020 (PPS), including

Sections 1.1.1(a,c, e, f, g, i), 1.1.3.2 (a, b, c, d, e, f), 1.1.3.3, 1.6.7.4?

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 Does the requested zoning under By-law 2019-051 support the planned

function of thearea in accordance with the City of Kitchener Official Plan and

the PPS?

 Are the Applications consistent with Sections 1.1.1 (a, c, e, f, g, i), 1.1.3.2 (a,

b, c, d, e, f),1.5.1 (a, b) and 1.6.1 (all subsections) of the PPS?

 Is the development proposed in the Applications compatible with the adjacent

existing and planned industrial land uses, consistent with Sections 1.2.6.1,

1.2.6.2 (all subsections) and 1.3.2.1 of the PPS, and in conformity with

Section 2.2.5.8 of the GrowthPlan and Section 2.G.10 of the ROP and

applicable guidelines?

 Are the Applications consistent with the PPS, including Sections 1.2.6.1,

1.2.6.2 (allsubsections), 1.3.1 (all subsections), 1.3.2.1, 1.3.2.2?

[79] Whereas Mr. Mobley and Mr. Pisani with specific and narrow policy analysis

within their areas of expertise opined that there is inconsistency with the PPS, it must be

noted that this has limited and scoped interpretation and not where the PPS is to be

read as a whole. On the other hand, Mr. Ariens and Mr. Pinnell in addition to PPS policy

analysis specific to each of the themes also reviewed it in the context of reading the

PPS as a whole.

[80] Major areas of contest between the planners were the preservation of planned

function, impacts on adjacent land uses, and the incompatibility of a residential use in

an arterial corridor setting. Mr. Ariens established through his analysis that an infill

intensification as proposed is encouraged by the PPS. He also established through the

expert testimony of Mr. Masschaele that there were no cross impacts on employment or

industrial land uses north of Highland Road West. Mr. Ariens also provided evidence

that the proposed development has been so designed through angular plane verification

and other architectural features that it will not cause undue negative impacts. Mr. Pinnell

stated his apprehensions regarding pedestrian safety, incompatible land use and

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possible uneconomic consequences without any substantiation or through dependence

on any expert witnesses.

[81] The Tribunal having considered the competing opinion evidence of Mr. Ariens

and Mr. Pinnell prefers the evidence of Mr. Ariens. Mr. Ariens has established that the

development would add to economic prosperity of the Region and the City, provide for

and add to housing choices. The Tribunal also takes notes that the Appellant’s

proposed cash-in-lieu benefits as well willingness to voluntarily provide for additional

positive improvements at their own cost would further benefit the adjoining community.

[82] The Tribunal finds that the proposed OPA and ZBA maintain consistency with the

PPS when all the policies are considered in due context.

Conformity with the Growth Plan

[83] The six themes addressed the following policies in the growth plan among

additional supplementary commentary and overall review by the witnesses:

 Do the Applications conform with A Place to Grow: Growth Plan for the

Greater GoldenHorseshoe, 2020 (Growth Plan), including Sections 2.2.1.2 (a

(i and iii), c), 2.2.1.3 (a, b, c, e), 2.2.1.4 (a, b, c, d (i, ii, iii), e, f), 2.2.2.3 (a, b,

e), 2.2.3 (1, 2(b)), and 2.2.4 (1, 2, 3.b)?

 Do the Applications conform to Sections 2.2.1.4 (d (i, ii, iii), e, f), 3.2.1.1 and

3.2.2.1 of the Growth Plan?

 Is the development proposed in the Applications compatible with the adjacent

existing and planned industrial land uses, consistent with Sections 1.2.6.1,

1.2.6.2 (all subsections) and 1.3.2.1 of the PPS, and in conformity with

Section 2.2.5.8 of the GrowthPlan and Section 2.G.10 of the ROP and

applicable guidelines?

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 Do the applications conform with the Growth Plan, including Sections 2.2.5.1

(allsubsections), 2.2.5.6, 2.2.5.7 (c), 2.2.5.8?

[84] Mr. Pinnell presented that the proposal would not maximize commercial use as

intended for Arterial Commercial, it would not follow the planning function approach and

could interfere with employment and industrial uses in the vicinity. Mr. Ariens testimony

established that there is very little unique about the Arterial Commercial and it shares

most uses with other commercial designations. Mr. Ariens and Mr. Pinnell also agreed

that the area designated Arterial Commercial on the south side of Highland Road West

hardly carries forward the intent of the designation. There are legal non-conforming

uses including residential uses and other uses not envisioned in Arterial Commercial.

The Appellant witness Mr. Masschaele provided uncontroverted testimony to show that

the proposal does not impinge or create negative impacts vis-à-vis employment and

industrial that Mr. Pinnell highlighted.

[85] The Tribunal having considered the testimonies and concerns finds that the

proposal based on the OPA and ZBA conform with the Growth Plan.

Conformity with Region of Waterloo Official Plan

[86] It was agreed to between the three planning experts that to carry out the

implementation of the prosed development, an amendment to the ROP is not

necessary. Ms. Mohr providing evidence directly confirmed it as well. The Region’s

generally submission in this respect is that the “planning function” and its preservation in

implementing developments is paramount.

[87] The Tribunal finds that the OPA and ZBA as proposed while seeking changes do

not create any non-conformity with the ROP.

Conformity with the City of Kitchener Official Plan

[88] The KOP allows consideration of amendments to the KOP. However, the KOP

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requires that such an OPA satisfy the requisites set in 17.E.2.16. Mr. Ariens provided

detailed analysis in Theme 6 with opposing views presented by Mr. Pinnell emphasized

that such intensifications are more suitable for locations served by higher order transit.

Mr. Pinnell emphasized this assertion by referring to the successful implementation of

ION rapid transit in the City. Mr. Ariens argued that there can be no exclusivity implied

in such policies and opportunistic infill intensification can equally co-exist.

[89] In consideration of the evidence the Tribunal finds that the OPA satisfies policy

17.E.2.16 and thus is appropriate.

[90] The requested ZBA to implement mix-use residential would interface with

existing residential to the south on Rauch Court. Mr. Pinnell opined that the sought

reduced rear yard setback, “wedding cake” type wedge shape interface to Rauch court

and the overall density are too high. He suggested that a customized regulation be set if

such development were to be allowed.

[91] Mr. Ariens’s evidence showed that the placement, the architecture attributes

would liven the street, have due consideration for any noise, shadows and overlook

aspects without causing undue impacts. Mr. Ariens further added that the prosed

development would add to the variety of housing options in the area.

[92] Weighing the evidence of Mr. Ariens and Mr. Pinnell the Tribunal finds that the

requested ZBA provides for an appropriately minimizes any possible negative impact

and is thus in conformance with the KOP, as amended by the OPA.

Good Land Use Planning

[93] Were the Tribunal to accept the thrust o the witnesses for the Region and the

City, it would have led to acceptance of the summary planning opinion provided by Mr.

Pinnell and Ms. Mohr that the proposal does not represent good land use planning.

However, as indicated in the analysis so far, the Tribunal has preferred the planning

evidence of Mr. Ariens on each of the statutory tests.

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[94] Mr. Ariens opined that the OPA and ZBA having had regard for the Provincial

Interest, being consistent with the PPS, conforming with the Growth Plan and the ROP

as well as the KOP, suitably develops into a good planning context. Mr. Ariens thus

opined that the OPA and ZBA represent good land use planning.

[95] In the consideration of the opposing opinions and the responding strength o the

Mr. Ariens expert planning evidence, the Tribunal find that the OPA and ZBA represent

good land use planning.

Other Matter

[96] Throughout the hearing the Tribunal encouraged all experts to speak to possible

enhancements or suggestions to improve upon the proposed development guided by

the revised OPA and ZBA sought by the Appellant. The Region and City witnesses did

not provide any alternate or suggested changes. Mr. Pinnell did confirm that the form

and structure of the OPA and ZBA were appropriate for implementing as submitted

should the Tribunal so allow the appeals.

[97] In the final submission, City counsel for the City sought from the Tribunal that

should it allow the appeals in part that the approval be made conditional to further

review and consultation between the parties.

[98] The Tribunal notes that it is important to provide finality in its decisions specially

absent any compelling rationale to justify otherwise. The Tribunal finds against the

request of the City for an interim approval or approval in principle.

Disposition

[99] The Appellant appeals regarding the requested OPA and ZBA are allowed.

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ORDER

[100] THE TRIBUNAL ORDERS that the appeal is allowed and the Official Plan for the

City of Kitchener is amended as set out in Attachment 1 to this Order.

[101] THE TRIBUNAL ORDERS that the appeal is allowed and By-law No. 2019-051

is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the

municipal clerk of City of Kitchener to assign a number to this by-law for record keeping

purposes.

“Jatinder Bhullar”

JATINDER BHULLAR

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.

ATTACHMENT 1

AMENDMENT NO.

TO THE OFFICIAL PLAN

OF THE CITY OF KITCHENER

THE CITY OF KITCHENER

1593 & 1603 Highland Road West

AMENDMENT NO.

TO THE OFFICIAL PLAN OF THE CITY OF KITCHENER

SECTION 1 – TITLE AND COMPONENTS

This amendment shall be referred to as Amendment No. 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 add a site specific policy area to permit the

development of the lands municipally addressed as 1593-1603 Highland Road West with a

13 & 16 storey mixed-use building, including residential dwelling units.

The amendment is comprised of the following changes:

Map 5 (Specific Policy Areas) is amended by adding Specific Policy Area

Adding Policy 15.D.12. to Section 15.D.12 to permit dwelling units within a building,

containing permitted and compatible commercial uses

Specific Policy 15.D.12. amends one policy in Arterial Corridor Urban Structure

designation

Policy 3.C.2.41 is amended to accommodate a limited range of dwelling units,

provided that retail and service commercial uses are located within the

same building

Specific Policy 15.D.12.

amends one policy in the Commercial land use designation

Policy 15.D.5.16

.

is amended to permit dwelling units located in the same building

as compatible commercial uses on lands designated Commercial

andidentified as ‘Arterial Corridor’.

SECTION 3 – BASIS OF THE AMENDMENT

The subject lands are designated as ‘Arterial Corridor’ in the Urban Structure portion of the

Official Plan. Arterial Corridors have historically been developed with auto-oriented, service

commercial uses, therefore the planned function of this designation has been to provide a

limited range of retail and service commercial uses intended to predominantly service those

travelling by automobile. The OfficialPlan also considers ‘Arterial Corridors’ to be a part of

‘Secondary Intensification Areas’. The primary objective of Intensification Areas are to

provide a broad range and mix of uses in an area of higher density and activity than

surrounding areas. This is in line with the intent of adding the residential component to the

proposed building, creating a mixed use development.

The subject lands are designated as ‘Commercial’ in the Land Use portion of the Official

Plan. The permitted uses on lands designated ‘Commercial’ and identified as an Arterial

Corridor include; auto- service stations, commercial entertainment, financial establishments,

office, personal services and restaurants. The surrounding context of the subject lands

display significant commercial growth in the Boardwalk Clusters, identified as a City Node

and transit expansion along Ira Needles Boulevard, for which a residential base would aid in

achieving complete communities.

The applicant is requesting an Official Plan Amendment to allow the subject lands to have the

permitted use of dwelling units within a building that contains compatible and permitted

commercial use. This would allow for the future construction of a development concept that

includes:

A new Building

With approximately 403 dwelling units located above the ground floor

1,052 square metres of office/ commercial space

The applicant has applied for a Zone Change that adds a Site-Specific use that mirrors the

request to permit dwelling units within a mixed use building, containing at least one other

permitted use and also deals with other development characteristics, including reducing the

minimum side yard and rear yardsetback permissions, increasing the maximum building

height and lot coverage permissions, andspecifying that parking spaces and drive aisles

may be located on the ground floor.

SECTION 4 –THE AMENDMENT

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

a)

Part D, Section

15.D.12 is amended by adding Site Specific Policy Area as follows:

“15.D.12.

1593 & 1603 Highland Road West

Notwithstanding the Arterial Corridor designation and policies and theCommercial land

use designation and policies, on the lands municipally known as 1593 and 1603

Highland Road West, a maximum of 403 dwelling units located above the ground floor

within a building that contain a permitted commercial use shall be permitted to a

maximum building height of 55 metres.

b)

Amend Map No.5

– Specific Policy Area by:

i.

Adding Specific

Policy Area

Schedule ‘A’.to

the subject lands as shown on the attached

LEGEND

CLIENT

LJM DEVELOPMENTS

PROJECT NAME

1593/1605 HIGHLAND RD W

CITY OF KITCHENER

COMMERCIAL - XX

ATTACHMENT 2

PROPOSED BY-LAW

, 2022

BY-LAW NUMBER

OF THE

CORPORATION OF THE CITY OF KITCHENER

(Being a by-law to amend By-law 2019-051, as

amended, known as the Zoning By-law for the City of Kitchener

- 1593 & 1603 Highland Road West - LJM Developments)

WHEREAS it is deemed expedient to amend By-law 2019-051 for the lands specified above;

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

Schedule Number 10 of Appendix ‘A’ to By-law Number 2019-051 is hereby amended

by changing the zoning applicable to the parcel of land specified and

illustrated on Map No.2 in the City of Kitchener, attached hereto, from

Arterial Commercial Zone (COM-3) to Arterial Commercial Zone with

Special Regulation Provision XXXX

Section 19 to By-law 2019-051 is hereby amended by adding Section X thereto as

follows:

“XXX”

Notwithstanding Section 9.2 of this By-law, within lands zoned

COM 3, as

shown as affected by this provision on Schedule Number 10 of ‘Appendix A’,a

maximum number of 403 dwelling units may be permitted within a mixed use

building containing at least one other permitted use and shall not be located on

the ground floor.

In addition, the following uses shall be permitted: artisan’s establishment, brew

pub, beverage making establishment, catering service, commercial

entertainment, computer establishment, fitness centre, medical lab, private

club, research and development establishment, and studio.

Notwithstanding Section 9.3 Minimum Side Yard, Minimum Rear Yard,

Maximum Lot Coverage, and Maximum Building Height provisions of this By-

law, within lands zoned COM-3, as shown as affected by this provision on

Schedule Number 10 of ‘Appendix A’, the following regulations shall apply;

The minimum side yard shall be 1.0 metres

i)

The minimum

side yard shall be 1.0 metres

ii)

The minimum

rear yard shall be 5.0 metres

coverage shall be 75%

iii)

iv)

The maximum lot

The maximum

building height shall be 55 metres

Notwithstanding Section 5.3.4 of this By-law, within lands zoned

COM-3, as shown as affected by this provision on Schedule Number

10 of ‘Appendix A’,the following regulations shall apply:

i)

Parking spaces and drive aisles may be located on the ground

floor ofa building.

2.

This By-law shall

be effective only if Official Plan Amendment No. (1593 & 1603 HighlandRoad

West) comes into effect, pursuant to Section 24 (2) of the Planning Act,

R.S.O, 1990, c.P.13, as amended

PASSED at the Council Chambers in the City of Kitchener this day of

, 2022.

Mayor

Clerk