Housing development delayed again by ever changing rules
KITCHENER The developer of a proposed 19-floor multi-residential building at 22 Weber St. W. is applying to city council for permission to build within the Civic Centre Heritage Conservation District.
The move will delay by at least six months a hearing at the Ontario Land Tribunal, a provincial body that rules on land-use disputes.
That hearing was scheduled to start in September, but is now delayed to March 2023. It will be closely watched by developers, urban planners and owners of designated heritage properties around the province.
A precedent-setting decision is expected about new construction in neighbourhoods protected under the Ontario Heritage Act. It could affect the building boom in downtown Kitchener, where many new condo buildings are going up between and around two conservation districts — Victoria Park and Civic Centre.
The hearing delay is the result of a Divisional Court ruling on a proposed 10-floor building on Adelaide Street West in Toronto. The land tribunal approved the proposed development, on condition the developer secured a heritage permit from the city.
The City of Toronto appealed that to Divisional Court, which ruled the developer had to apply for a heritage permit first, before the land tribunal could make such a ruling — a case of getting the cart before the horse.
The court said the process was flawed because it had city council dealing with a heritage permit after the tribunal had approved the new development. City councillors may feel compelled to OK a heritage permit because the tribunal had already approved the project.
“We needed to avoid the same outcome,” said Jennifer Meader, the lawyer for the developer of 22 Weber St. W. “That’s why we are adjourning, so no one later argues that the tribunal can’t make a decision on the Planning Act applications in the absence of the heritage permit applications.”
All parties agreed to adjourn for six months.
Meanwhile, the developer has applied to the City of Kitchener for a heritage permit. The neighbourhood group Friends of Old Berlin Towne, which is opposing the development, is calling on its members to speak against the heritage permit application when it comes before city councillors for debate.
The developer, Deny Cybalski, feels frustrated. The land where he wants to build is an empty parking lot just inside the boundary for the conservation district.
“We have a paved parking lot that fronts onto a regional road,” said Cybalski. “Our only access is directly off Weber Street, not from any nearby properties.”
Cybalski is a veteran developer and commercial landlord in the downtown, and he’s well aware of how delays scuttled earlier attempts to redevelop vacant land inside that conservation district.
One of the region’s biggest residential developers — Activa — cancelled plans to build on empty lots along Margaret Avenue. Delays caused by opposition and rising construction costs rendered the plan a money-loser for the developer, and it was cancelled. That land has sat empty since 1988.
“What they do is try to stall it and frustrate the developer,” said Cybalski.
Not so fast, said Hal Jaeger, a spokesperson for Friends of Old Berlin Towne.
The legislation and regulations that govern development in Ontario are just as frustrating for existing property owners who want to protect their neighbourhood’s character, said Jaeger.
When city councillors consider the heritage permit application for 22 Weber St. W., it will be the first time residents of the Civic Centre heritage district can make public comments to elected officials about the proposed project.
When city planners did not respond to the developer’s application in a timely fashion, it was appealed to the Ontario Land Tribunal, said Jaeger. That means there has been little to no public consultations about the proposed development, said Jaeger.
On that point, the residents and developer agree — the city’s failure to respond to the developer’s original application led to the hearing, becoming an expensive legal process instead of a public debate.
“There wasn’t the opportunity for neighbourhood meetings or anything, we were forced into that by the city because of their lack of response,” said Cybalski.
Jaeger said that’s why the group is urging members to appear before city council before the vote on the heritage permit application — it could be their first and last time to be part of a public debate about the development.
Meanwhile, Cybalski said the zoning along that section of Weber Street allows for buildings much higher than 19 floors. All of the studies — the heritage impact assessment, wind, shadow and traffic studies are done and ready.
“Everything falls within the permitted guidelines for 19 storeys without any required variances or deviations,” said Cybalski. “That’s what we want — housing downtown, or at least I thought so.”
The city’s failure to respond to the developer’s original application led to the hearing, becoming an expensive legal process instead of a public debate