Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 18, 2022

CASE NO(S).: OLT-21-001085

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

Applicant and Appellant: Mario Roque

Subject: Request to amend the Official Plan - Failure of City of Hamilton to adopt the requested amendment

Existing Designation: Agriculture

Proposed Designated: Agriculture

Purpose: To permit a 2-storey Agri-tourism Facility

Property Address/Description: 3355 Golf Club Road

Municipality: City of Hamilton

Approval Authority File No.: RHOPA-19-007

OLT Case No.: OLT-21-001085

OLT File No.: OLT-21-001085

OLT Case Name: Roque v. Hamilton (City)

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

Applicant and Appellant: Mario Roque

Subject: Application to amend Zoning By-law No. 05-200 - Refusal or neglect of City of Hamilton to make a decision

Existing Zoning: Agriculture (A1), Conservation/Hazard Land (P7), and Conservation/Hazard Land (P8)

Proposed Zoning: Site Specific (To be determined)

Purpose: To permit a 2-storey Agri-tourism Facility

Property Address/Description: 3355 Golf Club Road

Municipality: City of Hamilton

Approval Authority File No.: ZAC-19-028

OLT Case No.: OLT-21-001085

OLT File No.: OLT-21-001086

Heard: March 8, 2022 by video hearing

APPEARANCES:

Parties Counsel

Mario Roque Russell Cheeseman

City of Hamilton Patrick MacDonald

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON AND S. BOBKA ON MARCH 8, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (‘CMC”) in this proceeding, held by video hearing (“VH”) on March 8, 2022. The first CMC was held on November 26, 2021, at which time the full hearing of this appeal was scheduled to be held by video hearing before the Ontario Land Tribunal (“Tribunal”) on Monday, September 26, 2022 commencing at 10 a.m. for a period of (14) fourteen days, with the proviso that the Tribunal will not sit on Monday, October 10, 2022.

2Mario Roque (“Appellant”) proposes to construct a two (2)-storey “Agri-tourism Facility” comprised of a 25-room bed and breakfast with a clinic and educational facility at 3355 Golf Club Road, City of Hamilton (“Subject Property”). To facilitate its proposed development, the Appellant applied to the City of Hamilton (“City”) for an Official Plan Amendment and a Zoning By-law Amendment. The City failed to make a decision on the Appellant’s applications within the time period specified in the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) and the Appellant appealed to the Tribunal pursuant to s. 22(7) and s. 34(11) of the Act (“Appeal”).

3The Tribunal held the 1st CMC to address requests for Participant status, discuss opportunities for settlement discussions or Tribunal-led mediation, and set hearing dates and a date for a second CMC. The purpose of this 2nd CMC is to finalize the terms of the Procedural Order for this Appeal.

4Counsel for the Parties have advised the Tribunal that the draft PO delivered to the Tribunal on March 7, 2022 prior to the 2nd CMC, as subsequently revised following that hearing event, represents their consensus agreement on form and content. The Tribunal has reviewed this draft Procedural Order and, subject to a few minor modifications, has approved it in the final form now appended as Attachment 1 to this Decision.

ORDER

5The Tribunal orders that the Procedural Order now appended as Attachment 1 hereto shall govern this proceeding.

“William R. Middleton”

WILLIAM R. MIDDLETON MEMBER

“S. Bobka”

S. BOBKA 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.

OLT-21-001085

ATTACHMENT 1

ONTARIO LAND TRIBUNAL

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

Applicant and Appellant: Mario Roque Subject: Request to amend the Official Plan –Failure of the City of Hamilton to adopt the requested amendment Existing Designation: Agriculture Proposed Designation: Agriculture Purpose: To permit a 2-storey Agri-tourism Facility Property Address/Description: 3355 Golf Club Road Municipality: City of Hamilton Municipality File No.: RHOPA-10-007 OLT Case No.: OLT-21-00185 OLT File No.: OLT-21-00185 OLT Case Name: Roque v. Hamilton (City)

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

Applicant and Appellant: Mario Roque Subject: Application to amend Zoning By-law No. 05-200 –Refusal or neglect of the City of Hamilton to make a decision Existing Zoning: Agriculture (A1), Conservation/Hazard Land (P7), and Conservation/Hazard Land (P8) Proposed Zoning: Site Specific (To be determined) Purpose: To permit a 2-storey Agri-tourism Facility Property Address/Description: 3355 Golf Club Road Municipality: City of Hamilton Municipality File No.: RHOPA-10-007 OLT Case No.: OLT-21-00185 OLT File No.: OLT-21-00185

PROCEDURAL ORDER

The Tribunal orders that:

1The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.

Organization of the Hearing

2The hearing will commence on Monday, September 26, 2022, at 10:00 a.m.

3The length of the hearing will be 14 days. The length of the hearing may be shortened as issues are resolved or settlement is achieved.

4The parties and participants identified at the case management conference are listed in Attachment 1 to this Order.

5The Issues are set out in the Issues List attached as Attachment 2 to this Order. There will be no changes to this list unless the Tribunal permits it. A party who asks for changes may have costs awarded against it.

6The order of evidence shall be as listed in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent or by Order of the Tribunal.

Requirements Before the Hearing

7All parties and participants (or their representatives) shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the case management conference must advise the other parties and the Tribunal of the representative’s name, mailing address, email address and phone number.

8A party who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Visual Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/tribunals/lpat/).

9A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, May 27, 2022. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10Expert witnesses in the same field shall have a meeting before the hearing to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing on or before Thursday, June 30, 2022 and provide this list to all of the parties and the LPAT case co-ordinator.

11An expert witness shall prepare an expert witness statement, that shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in section [13]. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence and his or her area of expertise, as in section [13]. A party who intends to call a witness who is not an expert must file a brief outline of the witness evidence, as in paragraph 15 below.

13On or before Friday, August 5, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties and the OLT case co-ordinator.

14On or before Friday, August 5, 2022, a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15On or before Friday, September 16, 2022 the parties shall provide copies of their visual evidence to all of the other parties and the Tribunal. If a model is proposed to be used the Tribunal must be notified before the hearing. All parties must have a reasonable opportunity to view it before the hearing.

16Parties may provide to all other parties and the Tribunal a written response to any written evidence on or before Friday, September 2, 2022

17The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, September 16, 2022

18Any documents which may be used by a party in cross-examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before Friday, September 23, 2022.

19A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal in accordance with the Tribunal Rule 10.

20A party who provides the written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the parties are notified at least 7 days before the hearing that the written evidence is not part of their record.

21The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, September 16, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22All filings shall be submitted electronically. Electronic copies may be filed by email, and electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Tribunal Rule 7.

23No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 apply to such requests.

These Members are not seized.

So orders the Tribunal.

Attachment 1

PARTIES

1. Mario Roque
2. City of Hamilton

PARTICIPANTS

1. Andrea Power
2. Troy Smillie
3. Dale Philips

Attachment 2

Issues List

Provincial Policy Statement, 2020

1. Is the development proposal consistent with the growth policies within the Provincial Policy Statement, 2020, particularly with respect to policy 1.1.3.1?
2. Is the development proposal consistent with the agricultural-related uses and on-farm diversified use policies within the Provincial Policy Statement, 2020, particularly with respect to policies 2.3.2 and 2.3.3.1?
3. Does the development proposal comply with the Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas, particularly with respect to Sections 2.3.1 and 2.3.1.3 which establish recommended area calculations for On-Farm Diversified Uses?

Greenbelt Plan, 2017

4. Is the development proposal consistent with the prime agricultural uses within the Greenbelt Plan, 2017, particularly with respect to policy 3.1.3.1?

Rural Hamilton Official Plan

5. Does the development. including the proposed use and size for overnight accommodation, conform to the “Agricultural” polices of the Rural Hamilton Official Plan, including but not limited to 2.1, 2.1.2, and 2.1.3?
6. Does the development conform to Rural Hamilton Official Plan policy 2.2.3?
7. Has the applicant’s Environmental Impact Study demonstrated that the features and ecological functions of the Core Areas will not be negatively impacted as required under the Rural Hamilton Official Plan policies policy C.2.3.3?

Water and Servicing

8. Has the applicant’s Hydrogeological Report demonstrated that the development can be adequately serviced as required under the Rural Hamilton Official Plan, including but not limited to policy C.5.1.1, in accordance with F.3.2.5?
9. Does the proposed development conform to Greenbelt Plan policies 1.2.2, 3.2.3, 4.2.1, 4.2.2.1?
10. Is the development proposal consistent with the Provincial Policy Statement, 2020, in promoting safe, efficient development patterns, and protecting and ensuring sustainable use of the quality and quantity of water resources, while protecting human health and the natural environment in a manner that is suitable for the long-term provision of such services with no negative impacts to public health and safety, particularly with respect to policies 1.6.6, and 2.2?
11. Has the development proposal demonstrated adequate on-site water supply (quantity and quality)?

Other

12. Should the use of providing overnight accommodation for up to 25 guests be considered a Bed and Breakfast as defined in Zoning By-law 05-200?

Attachment 3

ORDER OF EVIDENCE

1. Mario Roque
2. City of Hamilton
3. Mario Roque, in Reply