Dear Neighbour,
As you know, on February 5, 2026, the Chair of the Ontario Land Tribunal dismissed Friends of Olde Berlin Town (FOBT)’s Request for Review. The September 17, 2025 Ontario Land Tribunal decision to approve Phase 1 of both the developer’s Official Plan Amendment and Zoning By-law Amendment applications for 22 Weber St W stands.
This journey together began in 2021, after the developer appealed to the Tribunal on the basis that the City of Kitchener failed to render a decision within the reduced timeline established under the More Homes, More Choice Act of 2019.1
When we began, we heard rumours that the Tribunal was instructed by the Ford government to ‘approve all developer applications’, even when approval might conflict with the law and public policy. Notwithstanding the warnings and financial challenges, a group of neighbours came together hoping that, if we ensured that our concerns were properly rooted in the law, and if we participated in the adjudication system, we might secure a better outcome. And so, FOBT incorporated and secured Party status. We also helped 25 neighbours secure Participant status.
We did encounter challenges at the Tribunal.
On January 6, 2023, the Tribunal permitted the developer to deviate from the Procedural Order2 (the terms on which the case would proceed), against FOBT’s protestations, which ultimately resulted in FOBT being deprived of its Expert Witness on Heritage3.
Following the hearing in April-May 2025, the Tribunal approved all of the developer’s requests without modification on September 17, 2025. Among its questionable decisions and procedures, the Tribunal:
- preferred the evidence of a witness that recanted his earlier testimony4,
- knowingly relied on an invalid authority5,
- denied FOBT opportunity to deliver key evidence6,
- misrepresented a witness’s testimony7, and
- took abstruse re-interpretations of the law8.
In October 2025, FOBT submitted a Request for Review to the Tribunal to address the above and other concerns. The Chair dismissed the request – citing the Tribunal’s right to employ the procedure of its choosing, to take the findings of its choosing, and to form the decision of its choosing. You can see the Chair’s letter, accompanied by FOBT’s more detailed analysis, here.
We have reached the end of Phase 1 of the hearing, regarding land-use, in front of the Tribunal. Any appeal to a higher court, if at all possible, would be prohibitively expensive.
FOBT still maintains that the Decision is in conflict with the Provincial Planning Statement, the Regional Official Plan, Kitchener’s Official Plan, Kitchener’s Urban Design Guidelines, and the Civic Centre Neighbourhood Heritage Conservation District Plan (HDP). And we still believe the Tribunal has set a terrible precedent in permitting a single property owner to shield themselves from upcoming official plan and zoning bylaw changes via an appeal to the Tribunal. Particularly when the changes address broad classes of properties equally, are handled in compliance with upper-level legislation, and are achieved in accordance with the public consultation process required under the Planning Act.
Despite the outcome of Phase 1, let us please recognize that FOBT contributed to the following modifications of the developer’s application:
- increasing the front yard setback from 0.8m to 3.0m, permitting better views of adjacent heritage builds and more cohesion of the streetscape, more in line with the City’s zoning bylaw and the HDP;
- increasing the side yard setback from 1.2m to 2.5m, permitting an improved transition to the flanking neighbours and allowing more light to reach all surrounding neighbours, more in line with the City’s zoning bylaw;
- securing indoor bicycle parking in compliance with the City’s Official Plan — especially needed in a building without any parking for cars;
- increasing on-site amenity space, both indoors and on the rooftop, which will afford new neighbours improved quality of life, more in line with the City’s zoning bylaw; and
- a prohibition on balconies and a limitation on windows facing the rear yard, reducing overlook and ensuring better privacy, more in line with the City’s Official Plan.
We demonstrated that the community is interested in planning matters and prepared to challenge applications that do not adhere to the law. (Our scrutiny also contributed to the City’s better understanding of conflicts of interest at the Committee of Adjustment.)
Please recognize that the case is not over. To date, no Phase 2 hearing on the Heritage Permit Application has been requested. Construction may not begin before completion of Phase 2 of the hearing.
Further information is available at our website, http://www.obtfriends.ca/. We welcome your questions and comments at obtfriends@gmail.com.
We could never have reached this point without your help. Thank you,
Hal Jaeger
Friends of Olde Berlin Town
www.obtfriends.ca
obtfriends@gmail.com
1 The More Homes, More Choice Act’s preamble states that the timeline was nearly halved to expedite lawful development. Yet, here we are, five years later, having just completed Phase 1, regarding land-use, of the Tribunal’s hearing. For its part, the City may have believed that the developer was still completing their application or slipped in handling the file under the early days of Covid19.
2 The developer failed to engage in Expert Witness Meetings by December 16, 2022 as required under the prevailing Procedural Order (a process ordered by the Tribunal, with the consent of all the parties on October 26, 2022). Instead, the developer requested an adjournment of the case. FOBT did not consent to the adjournment. The Tribunal did not offer any remedy for the developer’s non-compliance with the Procedural Order and granted the developer an adjournment and the opportunity to reset the Procedural Order at a time of their choosing.
3 FOBT engaged Expert Witness on Heritage Robert Martindale, who prepared a report on the developer’s Heritage Impact Assessment and Heritage Permit Application, which was delivered before Kitchener’s Heritage Committee in March 2022 and City Council in August 2022. Mr. Martindale remained available throughout the scheduled window for Expert Witness Meetings in December 2022. During the ensuing adjournment described in endnote. #1, above, Mr. Martindale’s wife fell ill, and he retired from practice. As Mr. Martindale’s evidence was already included in the Municipal Record, FOBT was prepared to have the City’s Heritage Witness comment on Mr. Martindale’s report. The Tribunal barred FOBT from examining the City’s witnesses.
4 On the matter of the rightful origin of the angular plane prescribed by the Heritage District Plan, the developer’s Expert Witness Currie admitted that his interpretation was incorrect in the following exchange under cross examination:
Counsel for the City, A. Ciccone: “The Angular plane guideline in the [HD] Plan says that you have to measure it from the rear property line, right?”
Currie: “It does.”
Ciccone: “You’ve measured it here from across the street, right?”
Currie: “Correct.”
Ciccone: “You’d agree with me, the policy does not say, measure it from a non-adjacent property across the street.”
Currie:“It does not. Sorry, I don’t mean to laugh. I’m just agreeing with you. I see the, anyways. Yeah, it does not.”
Ultimately, Mr. Currie acknowledged that “the proposed development does not meet the angular plane guideline when it’s measured from the rear property line”, as stipulated in the guideline.
5 The Tribunal leaned on InfoSheet#5: Heritage Impact Assessments and Conservation Plans, Cultural Heritage and Archaeology Policies of the Ontario Provincial Policy Statement, 2005 to determine the adverse impacts arising from establishing zoning regulations that would be inconsistent with the relevant guidelines in the HDP. However, InfoSheet#5 is an invalid authority. It is an educational pamphlet used alongside the 2005 Provincial Policy Statement for evaluation of individual heritage resources. InfoSheet#5 includes the following disclaimer: “This InfoSheet was developed to assist participants in the land use planning process and to understand the PPS, 2005 policies related to the conservation planning of cultural heritage and archaeological resources. The information in the InfoSheet should not be relied upon as a substitute for specialized legal or professional advice in connection with any particular matter.” Moreover, the 2005 Provincial Policy Statement itself is no longer a valid authority, having been replaced with multiple updates, most recently the Provincial Policy Statement, 2024. Finally, even if the 2005 Provincial Policy Statement were still in effect, InfoSheet#5 would not be a substitute for evaluation against the goals, objectives, policies and guidelines of an HDP. When FOBT made the Tribunal aware of the status of InfoSheet#5, the Tribunal responded, “the Tribunal finds it is a helpful tool.”
6 The Tribunal denied FOBT opportunity to deliver key evidence in two ways: a) The Tribunal forbade FOBT’s Expert Witness on land-use M. Barton to convey evidence on the in-effect land-use designations and zoning regulations on the neighbouring properties, even though the evidence could have helped inform what might have been permitted at 22 Weber St W while providing for an appropriate transition, and b) the Tribunal denied FOBT’s introduction of key evidence by barring FOBT from examining the City’s Expert Witnesses.
7 The Tribunal asserted that the developer’s Expert Witness on land-use, A. Sinclair, opined that “FSR [Floor Space Ratio] was a function of lot size, not determinative of how tall a building should be”. However, under cross-examination by FOBT, Ms. Sinclair clarified that “Absolutely, on this site, the FSR [regulation] did restrict how much height we could get”. The Tribunal took only Sinclair’s initial statement on FSR, without Sinclair’s subsequent clarification, as support for the Decision that height was not regulated on the site.
8 Example #1. The minimum rear yard setback as per the zoning bylaw is “7.5 m or one half the building height, whichever is greater”. There was no disagreement among the witnesses that the rear yard setback regulation limits height based on the distance from the rear property line. Nonetheless, the Tribunal’s decision states “The Tribunal is not persuaded that height is regulated in the ZBL [Zoning By-Law] by the combination of FSR [Floor Space Ratio] and [rear yard] setback regulation because the City could have regulated the height by directly imposing a cap in the ZBL.”
Example #2. The HDP guidelines include that “Where significantly different [front yard] setbacks exist on either side, the new building should be aligned with the building that is most similar to the predominant setback on the street.” Of the two flanking buildings, the setback at 28 Weber Street West, at 7.34m, is most similar to the predominant setback on the street. The Tribunal found that the proposed “3 m front yard setback (0 m with the road widening) is within the range of front yard setbacks and is set back enough so that it does not result in any adverse impacts” and then concluded that the proposed setback “meets the intent of the WHGs [Weber St Area HDP guidelines] with respect to the front yard setback”.
First, it is factually incorrect that the proposed setback is within the range of existing front yard setbacks. Based on visual evidence submitted by the Appellant, the range of front yard setbacks in the Weber St Policy Area is from 0.63m [2.07 feet] to approximately 12.88m. Second, the HDP does not require that the setback be ‘within the range of front yard setbacks’; it requires that the setback “be aligned with the building that is most similar to the predominant setback on the street”, i.e. 28 Weber St W, at 7.34m. Third, the HDP does not establish that its guidelines may be substituted with a test of unacceptable adverse impacts.