Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 29, 2022
CASE NO(S).: OLT-22-002305 (Formerly PL171131)
PROCEEDING COMMENDED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant(s)/Appellant(s): Parkside Hills Inc. Subject: Request to amend Official Plan – Failure of the City of Hamilton to adopt the requested amendment Existing Designation: Neighbourhoods and Mixed Use – Medium Density Proposed Designation: Site Specific Purpose: To permit the propose development – Phase 2A Property Address/Description: 609 and 615 Hamilton Street North, 3 Nisbet Boulevard and 129-137 Truedell Drive Municipality: City of Hamilton Municipal File No:. UHOPA-17-03 OLT Case No.: OLT-22-002305 Legacy Case No: PL171131 OLT Lead Case No: OLT-22-002305 Legacy Lead Case No: PL171131 OLT Case Name: Parkside Hills Inc. (Country Green Homes Inc.) v. Hamilton (City)
PROCEEDING COMMENDED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant(s)/Appellant(s): Parkside Hills Inc. Subject: Application to amend Zoning By-law No. 90-145-Z – Neglect of the City of Hamilton to make a decision Existing Zoning: Automotive Commercial “AC-2” Zone, modified, Urban Residential (Single Detached) “R1-34 Zone, modified and Medium Density Residential “R6-16” Zone Proposed Zoning: Site specific Medium Density "R6-" Zone and site specific Urban Residential (Single Detached) "R1-" Zone Purpose: To permit the proposed development – Phase 2A Property Address/Description: 609 and 615 Hamilton Street North, 3 Nisbet Boulevard and 129-137 Truedell Drive Municipality: City of Hamilton Municipal File No:. ZAC-17-013 OLT Case No.: OLT-22-002306 Legacy Case No: PL171132 OLT Lead Case No: OLT-22-002305 Legacy Lead Case No: PL171131
PROCEEDING COMMENDED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant(s)/Appellant(s): Parkside Hills Inc. Subject: Proposed Plan of Subdivision - Failure of the City of Hamilton to make a decision Purpose: To permit the creation of 63 residential dwelling units, consisting of 2 semi-detached and 22 back-to-back townhouse units fronting on a public road, 15 block townhouse and 24 back-to-back townhouse dwelling units fronting on a private condo road, and 1 block for road widening purposes – Phase 2A Property Address/Description: 609 and 615 Hamilton Street North, 3 Nisbet Boulevard and 129-137 Truedell Drive Municipality: City of Hamilton Municipal File No:. 25T-201702 OLT Case No.: OLT-22-002307 Legacy Case No: PL171133 OLT Lead Case No: OLT-22-002305 Legacy Lead Case No: PL171131
Heard: February 17, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Parkside Hill Inc. | Scott Snider Anna Toumanians |
| City of Hamilton | Patrick MacDonald |
DECISION DELIVERED BY N.P. ROBINSON AND S. deBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant and Appellant, Parkside Hills Inc. (hereinafter “Parkside Hills”), owns lands located at the south-west corner of Hamilton Street North and Nisbet Boulevard, north of Parkside Drive in the City of Hamilton (the “Subject Lands”). The property is irregularly shaped with an area of 1.15 hectares (“ha”) (2.84 acres) and is currently vacant.
2The Subject Lands have frontage on Hamilton Street North which is classified as a Minor Arterial Road as well as Truedell Circle and Nisbett Boulevard, which are classified as Local Roads in the Urban Hamilton Official Plan (the “UHOP”).
3The surrounding context of the Subject Lands is as follows:
North: Existing townhouse development;
South: Existing townhouse development and Waterdown Memorial Park (7.1 hectares, 17.6 acres);
West: First phase of the proposed development which is made up of townhouse and single detached dwellings, with Waterdown Secondary School located further west; and
East: Across Hamilton Street North, there is a collection of existing single detached dwellings.
4The Subject Lands are designated Neighbourhoods in the UHOP. A portion of the lands are designated Mixed Use – Medium Density and Low Density Residential 2 in the Waterdown North Secondary Plan, while the balance of the lands are not within the Secondary Plan boundary. The Subject Lands are currently zoned as Automotive Commercial “AC-2”, Urban Residential (Single Detached) “R1-34”, and Medium Density Residential “R6-16” under the Town of Flamborough Zoning By-law No. 90- 145-Z.
5The Official Plan Amendment (“OPA”) is required to add certain lands to the Waterdown North Secondary Plan and to remove the Urban Site-Specific Policy UFN-1 while placing the lands in the appropriate Medium Density Residential 3 and Low Density Residential 2 land use designation. A Zoning By-law Amendment (“ZBLA”) is required to change the zoning from Automotive Commercial “AC-2”, modified and Medium Density Residential “R6- 16”, modified to a site-specific Medium Density Residential “R6- ” and a site specific Urban Residential (Single Detached) “R1- ” Zone in the Town of Flamborough Zoning By-law No. 90-145-Z. The Draft Plan of Subdivision is required to extend the Truedell Circle right-of-way and to establish the development blocks.
6The proposed OPA, ZBLA, Plan of Subdivision and associated Conditions of Draft Plan Approval will facilitate the development of a total of 54 residential units across four (4) development blocks as follows (the “Proposed Development”):
Block 1: 2 semi-detached dwelling units fronting Trudell Circle Block 2: 8 street townhouse units fronting Trudell Circle Block 3: 7 halves of back-to-back units fronting Nisbet Boulevard Block 4: 37 back-to-back units fronting Truedell Circle via three private “finger” roads
7The Proposed Development is a continuation of Phase 1 of the existing Parkside Hills subdivision registered as Plan 62M-1125 on July 16, 2009.
8Matt Johnston, who was qualified by the Tribunal to give expert opinion evidence in relation to land use planning, was called by Parkside Hills. The City of Hamilton did not call any evidence and the evidence of Mr. Johnston is therefore largely uncontested.
ISSUES:
9The Procedural Order issued December 16, 2021 identifies five issues for the Tribunal’s consideration:
Does the development proposal provide for appropriate residential intensification and a range and mix of housing types, as required by Urban Hamilton Official Plan (“UHOP”) Volume 1 policies E.3.2.1, E.3.4.6 and Volume 2 policies B.4.2.2.1 and B.4.2.4.3?
Would approval of the Draft Plan of Subdivision have regard to the matters provided for in section 51(24) of the Planning Act?
If the Draft Plan of Subdivision is approved by the Tribunal, what are the appropriate conditions to apply to the draft plan of subdivision approval?
Would approval of the proposed OPA, ZBA and Draft Plan of Subdivision be consistent with the PPS, 2020 and conform to the Growth Plan for the Greater Golden Horseshoe, 2020?
Would approval of the proposed OPA, ZBA and Draft Plan of Subdivision conform to the UHOP?
ANALYSIS:
Provincial Policy
10The Tribunal’s decision must conform with the Growth Plan for the Greater Golden Horseshoe 2020 (the “Growth Plan”) and be consistent with the Provincial Policy Statement 2020 (the “PPS”).
11Specific reference to promoting efficient development and land use patterns can be found in PPS policies 1.1.1(a) & (e), 1.1.1.3.2(a) & (b), 1.1.3.6, 1.4.3(d), and 1.1.6.1 (a). Specific references to promoting compact form can be found in policies 1.1.3.4, 1.1.3.6, 1.4.3(f) and 1.8.1(a). Specific policies that reference optimizing the use of land and infrastructure include policies 1.6.3(a), 1.6.6.1(a), 1.6.6.2 and 1.7.1(c).
12The Growth Plan places a similar emphasis on efficient development and intensification at Section 2.1:
It is important to optimize the use of the existing urban land supply as well as the existing building and housing stock to avoid over-designating land for future urban development while also providing flexibility for local decision makers to respond to housing need and market demand. This plan’s emphasis on optimizing the use of the existing urban land supply represents an intensification first approach to development and city-building, one which focuses on making better use of our existing infrastructure and public service facilities, and less on continuously expanding the urban area.
13Policies that speak specifically to optimizing the use of land and infrastructure and providing for compact built form include policies 2.2.1(3)(c) & (e). Intensification is to be encouraged, “…generally throughout the delineated built-up area.” (Policy 2.2.2(3)(c)). The Subject Lands are within a settlement area, in the delineated built-up area of the City of Hamilton with access to public service facilities, municipal water and wastewater systems.
14There is strong provincial direction to make the most efficient use of land and infrastructure or to “optimize” the use of land and infrastructure. Recently, the Tribunal recognized this characterization of the balance inherent in the term “optimize”:
Optimization is not maximizing the land use potential but rather is providing the most that is contextually appropriate. The aim is to strike the right balance between these opportunities and moderating elements, where once an optimized and appropriate balance is achieved, the proposal contributes to a complete community environment….
CRAFT Acquisitions Corp. v. Toronto (City) 2021 LNONLPAT 495, paragraphs. 151 and 157-158; Greendboard Holdings Ltd. v. Toronto (City) 2021 LNONLPAT 489, at paragraph 16-20.
15The only expert evidence presented to the Tribunal was by Mr. Johnston, a professional land use planner, in support of the Proposed Development. Mr. Johnston acknowledged the provincial policy direction to optimize the use of the existing urban land supply, infrastructure and public service facilities and intensification opportunities, particularly within intensification areas.
Planning Evidence
16Mr. Johnston’s uncontested opinion was that the Proposed Development has regard for the matters of provincial interest in s. 2 of the Planning Act, is compatible with the PPS, conforms to the Growth Plan and conforms with the goals and objectives of the UHOP and City of Hamilton Zoning-By-law.
17It was also Mr. Johnston’s uncontested opinion that all of the criteria in s. 51(24) of the Planning Act that are relevant to the approval of the draft plan of subdivision have been fully addressed. In addition, Mr. Johnston opined that there is agreement on the proposed conditions of draft plan approval which were completed through consultation and coordination with City staff.
18A crucial question for the Tribunal is whether the Proposed Development will be compatible with the existing neighbourhood.
19The evidence of Mr. Johnston emphasized the balance inherent in the concept of optimization - optimization requires consideration of how much can be provided while remaining compatible. On this point, Mr. Johnston referred to the definition of compatibility in the UHOP:
Compatibility/compatible: means land uses and building forms that are mutually tolerant and capable of existing together in harmony within an area. Compatibility or compatible should not be narrowly interpreted to mean “the same as” or even as “being similar to
20The truly objective test of compatibility is whether the proposal will have a physical or functional undue adverse impact on existing development.
Re: Scarborough (City) Official Plan Amendment No. 1001 (Re) [1998] O.M.B.D. No. 1739, at paragraphs 10, 29 and 58-65. Nahon v. Ottawa (City) [2005] O.M.B.D No. 571, at paragraph 14.
21Mr. Johnston opined that the Proposed Development will not cause undue adverse impacts on existing development and achieves the right balance between providing as much housing as possible while still maintaining compatibility, for the following reasons:
The Proposed Development is a logical extension of Phase 1 of the existing plan of subdivision;
The proposed density and design are compatible with the existing character of the surrounding neighborhood which consists of similar low-rise, low to medium density residential built forms which is in keeping with the surrounding community;
Urban design considerations will continue to be refined through the site plan approval process and as required by the Conditions of Draft Plan Approval to ensure compatibility;
The three (3) “finger” road network design provides good integration to Hamilton Street North; and
Through collaboration with City Staff, special attention was paid to the design of Trudell Circle to ensure safety and compatibility.
22It was clear from Mr. Johnston’s evidence that he is satisfied that the Proposed Development is compatible with the surrounding area. The Tribunal notes that the City of Hamilton retained but elected not to call, Mark Dorfman, a land use planner.
23The City did not call a single witness at the hearing to support the position that the Proposed Development should not be approved. The cross examination of Mr. Johnston was largely focused on how the design of the Proposed Development could be modified to reduce density.
24The City’s position is contrary to the direction in provincial policy to make the most efficient use of land and infrastructure. The Tribunal has difficulty discerning any demonstrable negative land use planning impacts that would arise from the intensification proposed.
25The Growth Plan recognized the importance of addressing housing affordability issues. The Growth Plan observes that:
…many communities in the GGH are facing issues of housing affordability, which are being driven primarily by sustained population growth and factors such as a lack of housing supply with record low vacancy rates. This Plan helps to address this challenge by providing direction to plan for a range and mix of housing options, including additional residential units and affordable housing and in particular, higher density housing options that can accommodate a range of household sizes in locations that can provide access to transit and other amenities.
26In cross examination, Mr. Johnston was asked about how the Proposed Development conforms to the policy direction encouraging a variety of built forms and a range and mix of housing. Mr. Johnston opined that these policies are not narrowly applied on a site-by- site basis and are intended to be applied City wide. The Tribunal notes that the Proposed Development provides housing in the form of semi-detached dwellings, street townhouses and back-to-back units.
27Mr. Johnston’s oral evidence was consistent with and elaborated on the written statement filed with the Tribunal.
Land Use Planning Impacts
28The Tribunal had the benefit of receiving submissions from a participant. Trenton Wilde resides within the neighbourhood that abuts the Subject Lands. Mr. Wilde made oral submissions that highlighted concerns with respect to the Proposed Development.
29Mr. Wilde’s submissions were largely based on a previous version of the proposal at 60 units, not the current proposed 54 units. Many of Mr. Wilde’s concerns were not land use planning related or within the Tribunal’s jurisdiction, such as his concerns about alleged previous commitments made by Parkside Hills and Building Code issues.
30All of the issues raised by Mr. Wilde were previously brought to the attention of staff and the local councillor and were considered when modifications were made to the original proposal.
31Mr. Johnston opined that the concerns raised by Mr. Wilde have been addressed as follows:
Traffic Capacity and Safety: The Transportation Impact Study and Transportation Demand Management Options Report was submitted with the original application and indicated no issues or concerns. In addition, extensive discussions and consultation with staff have occurred on these issues to ensure sufficient capacity and safety.
Contamination: The remediation resulting from the former bulk petroleum storage will require a Record of Site Condition from the Province of Ontario’s Ministry of the Environment, Conservation and Parks.
Density: The proposed density is appropriate given provincial policy direction for optimization of intensification opportunities and the current and planned surrounding context.
Overlook issues resulting from the proposed three (3) storey back-to-back townhouses on Block 2: This is a common interface in residential areas to have this form of housing with two (2) storey dwellings. Notwithstanding this, the interface only occurs on Block 2 where very generous rear yard setbacks in the range of 10-15 metres are proposed, well above the standard rear yard setback in residential areas of 6-7 metres. This provides a substantial buffer to all existing development and shelters existing residents from any of the traditional impacts associated with intensification and infill development.
Noise Impacts: A Noise Impact Study was submitted with the original application and no concerns or issues were identified. Conditions 6 and 8 of the Conditions of Draft Plan Approval also require further noise level investigation and reporting.
Drainage: A Functional Servicing Report was submitted with the original application and identified no issues or concerns. Condition 27 of the Conditions of Draft Plan Approval also require that this report be updated.
CONCLUSIONS:
32For the reasons elaborated above,
a. The Tribunal is satisfied that the proposal represents appropriate intensification in accordance with the UHOP.
b. The Tribunal is satisfied that the Draft Plan of Subdivision has regard to the matters provided for in section 51(24) of the Planning Act.
c. The Tribunal is the satisfied that the conditions suggested for proposed draft plan of subdivision are appropriate.
d. The Tribunal is satisfied that the proposed OPA, ZBLA and Draft Plan of Subdivision are consistent with the PPS, 2020 and conform to the Growth Plan.
e. The Tribunal is satisfied that proposed OPA, ZBLA and Draft Plan of Subdivision conform to the UHOP.
33The City has recommended that the Tribunal refuse the Proposed Development. The City’s position will limit the number of families that can live on the Subject Lands. This position runs counter to the clear direction in provincial policy.
34Parkside Hills’ proposal advances the objectives of provincial policy in relation to intensification. The evidence of Parkside Hills is uncontradicted and the Tribunal, therefore, has no hesitation in allowing the appeal.
ORDER:
35THE TRIBUNAL ORDERS that the appeals are allowed and THAT:
The application to amend the Urban Hamilton Official Plan by Parkside Hills Inc. is approved in accordance with Schedule 1 attached hereto and the City is hereby directed to amend the Official Plan accordingly;
The application to amend Zoning By-law No. 90-145-Z (Flamborough) for the City of Hamilton by Parkside Hills Inc. is approved in accordance with Schedule 2 attached hereto; and the City is hereby directed to amend Zoning By-law No. 90-145-Z accordingly
The proposed draft Plan of Subdivision by Parkside Hills Inc. is approved in accordance with Schedule 3 attached hereto and subject to the Conditions of Draft Plan of Subdivision Approval attached as Schedule 4;
Pursuant to section 51(56.1) of the Planning Act, the final approval of the proposed Plan of Subdivision for the purposes of section 51(58) is to be given by the City of Hamilton;
36The Tribunal may be spoken to should any matters arise respecting the implementation of this Order.
“N.P. Robinson”
N.P. ROBINSON
VICE-CHAIR
“S. deBoer”
S. DEBOER
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