Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 17, 2022

CASE NO(S).: OLT-22-002313 (Formerly PL210024)

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

Applicant and Appellant: Willow Valley Holdings Inc. Subject: Request to amend the Official Plan – Refusal of request by City of Hamilton Existing Designation: Open Space Proposed Designated: Rural Purpose: To permit the creation of two new residential lots Property Address/Description: 8475 English Church Road East Municipality: City of Hamilton Approval Authority File No.: RHOPA- 17-039 OLT Case No.: OLT-22-002313 Legacy Case No.: PL210024 OLT Lead Case No.: OLT-22-002313 Legacy Lead Case No.: PL210024 Case Name: Willow Valley Holdings Inc. 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: Willow Valley Holdings Inc. Subject: Application to amend Zoning By-law No. 464 (Glanbrook) Refusal or neglect by City of Hamilton to make a decision Existing Zoning: Open Space (P4) Proposed Zoning: Rural (A2) Purpose: To permit the creation of two new residential lots Property Address/Description: 8475 English Church Road East Municipality: City of Hamilton Municipality File No.: ZAC-17-082 OLT Case No.: OLT-22-003713 Legacy Case No.: PL210025 OLT Lead Case No.: OLT-22-002313 Legacy Lead Case No.: PL210024

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Willow Valley Holdings Inc. et. al. Subject: Application for Consent – Failure of the City of Hamilton to make a decision Purpose: To permit the creation of two new residential lots Property Address/Description: 8475 English Church Road East Municipality: City of Hamilton Municipality File No.: GL/B -15:66 OLT Case No.: OLT-22-002320 Legacy Case No.: PL210112 OLT Lead Case No.: OLT-22-002313 Legacy Lead Case No.: PL210024

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Willow Valley Holdings Inc. et. al. Subject: Application for Consent – Failure of the City of Hamilton to make a decision Purpose: To permit the creation of two new residential lots Property Address/Description: 8475 English Church Road East Municipality: City of Hamilton Municipality File No.: GL/B -15:65 OLT Case No.: OLT-22-002318 Legacy Case No.: PL210111 OLT Lead Case No.: OLT-22-002313 Legacy Lead Case No.: PL210024

Heard: May 18, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
Willow Valley Holdings Inc.	S. Snider, A. Toumanians
City of Hamilton	P. MacDonald

DECISION DELIVERED BY STEVEN COOKE AND ORDER OF THE TRIBUNAL

1The matter before the Tribunal were the appeals from Willow Valley Holdings Inc. et. al. (the “Applicant”) pursuant to sections 53(14), 22(7) and 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, (the “Act”) for the City of Hamilton’s (the “City”) refusal to approve the Applicant’s proposed Official Plan Amendment (the “OPA”), Zoning By-Law Amendment (the “ZBA”) and two related appeals for the City’s refusal of consent applications for the property municipally known as 8475 English Church Road East (the “Subject Lands”).

2The purpose of the applications by the Applicant is to amend the Rural Hamilton Official Plan (the “RHOP”), rezone the Subject Lands to permit the development of two new residential lots that would front onto English Church Road East and would replace the two existing rural residential lots located on Upper James Street. The Applicant proposes to consolidate the two existing rural residential lots by merging them with its adjacent agricultural operation.

THE WITNESSES

3The Tribunal qualified without objections, the following individuals to provide expert witness testimony in their field of expertise:

a. For the Applicant: i. acoustic noise expert - Hazem Gidamy ii. agriculture land-use expert - Robert Stovel iii. land-use planner - Edward Forthergill

b. For the City: i. acoustic noise expert - Brian Howe ii. land-use planner - Charlie Toman

4On behalf of the Applicant, Steve Schiedel (owner), appeared before the Tribunal to provide personal testimony regarding his intentions for the property.

SITE AND AREA CONTEXT

5Throughout this Decision, the Tribunal will make reference to six various lots (shown in the diagram below) that can be found in Mr. Fothergill’s witness statement on page 41 of the Joint Document Book marked as Exhibit 1.

6The Applicant proposes to create two residential lots (Lots 5 & 6) by severing two portions of the Willow Valley Golf Course (Lot 4) that would front onto English Church Road East and allow the Applicant to construct two new single-family dwellings. The Applicant submits that by allowing the creation of the two new residential lots, the Applicant would merge the existing rural residential Lots 1 & 2, that front onto Upper James Street, with the adjacent agricultural parcel, Lot 3.

7The Subject Lands are located outside of the Hamilton Urban Area boundary. Along the east side of the Subject Lands is Upper James Street, which is considered a major arterial road. To the north and south are English Church Road East, and Homestead Drive, both considered relatively quiet rural roads that have a variety in shapes and style of rural residential lots.

8A short distance to the northwest of the Subject Lands is the location of the John C. Munroe International Airport and the lands recently approved as part of the Airport Employment Growth District.

WILL-SAY TESTIMONY

9Mr. Schiedel came forward to provide testimony to clarify his intentions with respect to the two existing rural residential properties (Lots 1 & 2) on Upper James Street.

10Mr. Schiedel explained that a significant investment in surface grading, systematic tile drainage and tree management to adequately utilize Lots 1 & 2 for agricultural purposes would be required.

11For financial and logistical reasons, it is the intention of Mr. Schiedel to develop Lots 1 & 2 should the Tribunal dismiss the proposed applications to develop Lots 5 & 6.

ACOUSTIC AND NOISE EVIDENCE

12Transport Canada uses a Noise Exposure Forecast / Noise Exposure Projection (the “NEF” / “NEP”) to measure aircraft noise in the vicinity of airports. This metric provides for actual and forecasted noise levels. The Tribunal was informed that a measurement of 25 NEF/NEP is a contour level that can produce a level of sound annoyance. Typically, in the vicinity of an airport any NEF/NEP contour above 35 results in a higher likelihood of noise complaints.

13The John C. Munroe International Airport in the City is a major airport. Its longest runway services large passenger and freight aircraft with a departure and arrival flight path that parallels English Church Road East.

14On behalf of SS Wilson Associates, Mr. Gidamy conducted and prepared an acoustical Preliminary Noise Control Study report dated July 20, 2018.

15He noted that Lots 1 & 2 are also subject to the continuous traffic noise related to the major arterial road of Upper James Street. It was his opinion that under that as-of-right permitted uses Lots 1 & 2 can be developed with a residential dwelling, and that to transfer that right to the newly created Lots 5 & 6 would maintain a net zero sound impact to any potential residential dwellings. Mr. Gidamy speculated that with the advancement in new technology sound mitigation from aircraft is likely to improve.

16Mr. Gidamy stated that, if anything, Lots 5 & 6 would have the noise peaks from aircraft traffic, but overall, the continuous noise levels would be lower with the significantly lower volume of traffic that occurs on English Church Road East.

17With new technologies in construction materials that help mitigate sound and the advancement of aircraft technology, it was his opinion that under the above stated circumstance the development of the potential Lot 5 & 6 was appropriate.

18All major airports in Ontario have contour mapping that indicates NEF and NEP contour ranges to be used as a reference for planning decisions. Mr. Gidamy testified that the Subject Lands are identified to be within the NEF contour range of 35-40.

19Mr. Howe of HGC Engineering was retained by the City to conduct a review of the Preliminary Noise Control Study report prepared by Mr. Gidamy.

20Mr. Howe informed the Tribunal that he agreed with many of the facts presented in the report. Mr. Howe stated that he agreed that Lots 1 & 2 had an NEF 36 and NEF 37, while Lots 5 & 6 are approximately near a NEF 40 contour. Mr. Howe also agreed, from an engineering perspective, closed windows with central air conditioning and materials used that mitigate noise, while being more costly, would make it possible to control intrusive aircraft noise while indoors. However, it was the opinion of Mr. Howe that any outdoor living areas that are exposed to an NEF 40 contour would not be suitable.

21It was the opinion of Mr. Howe that the application is not consistent with directives found in Policy 1.6.9.1 of the Provincial Policy Statement, 2020 (the “PPS”). Policy 1.6.9.2 directs that land use planning for areas near airports need to protect the economic impacts and long-term operations of the airport. Mr. Howe testified, in particular, that Policy 1.6.9.2 of the PPS prohibits new residential development located in an NEF/NEP contour above 30.

22Mr. Howe stated that the RHOP Airport Influence Area Policies reinforce the PPS desire to ensure that any development will not contribute to a negative impact on the long-term operations of the airport. The RHOP directs that any development, redevelopment or infill development within the Airport Influence Area above an NEF 25 contour is required to conduct a detailed noise study. Furthermore, the RHOP Airport Influence Area Policies states that any residential development, redevelopment or infill development with an NEF contour above 35, shall be prohibited. It is the expert opinion of Mr. Howe that the development of Lots 5 & 6 would not conform with the RHOP.

AGRICULTURAL LAND USE EVIDENCE

23The Canada Land Inventory (the “CLI”) measures soil capability of lands for agricultural uses. Lots 1, 2 & 3 are CLI Class 1 soil and considered to be prime agricultural lands. Lots 4, 5 & 6 are a mixture of lower class CLI lands.

24Section 2.3 Agriculture of the PPS states:

2.3.1 Prime agricultural areas shall be protected for long-term use for agriculture.

Prime agricultural areas are areas where prime agricultural lands predominate. Specialty crop areas shall be given the highest priority for protection, followed by Canada Land Inventory Class 1, 2, and 3 lands, and any associated Class 4 through 7 lands within the prime agricultural area, in this order of priority.

2.3.2 Planning authorities shall designate prime agricultural areas and specialty crop areas in accordance with guidelines developed by the Province, as amended from time to time.

Planning authorities are encouraged to use an agricultural system approach to maintain and enhance the geographic continuity of the agricultural land base and the functional and economic connections to the agri-food network.

25It was the opinion of Mr. Stovel that by combining Class 1 soil Lots 1 & 2, with Lot 3 would be considered a positive impact that makes the agricultural lands more viable and efficient. He further stated that from a farming perspective neither Lots 1, 2, 5 or 6 are economically viable to farm on their own.

26It was his testimony that Lots 5 & 6 are both considered a poor soil class that have been disturbed over the existence of the golf course and would not be suitable for farm uses. The Tribunal was informed that, in his opinion, Mr. Stovel would not consider these Lots to be Prime Agricultural Lands as defined in the PPS. Lots 4, 5 & 6 are also designated in the RHOP as Open Space lands that do not permit agricultural uses.

PLANNING EVIDENCE

27It was the expert opinion of Mr. Fothergill that the proposed OPA, ZBA and consents are consistent with the provisions of the PPS and conform with the policies of the Growth Plan and RHOP.

28Mr. Fothergill testified that the Applicant currently has the right to develop the existing Lots 1 & 2. It was his opinion that relocating the development rights from Lots 1 & 2 (located on Upper James Street) to Lots 5 & 6 (located on English Church Road East) would not negatively affect the operations of the airport or its ability to potentially expand. It was his opinion that the proposed development is consistent with Policies 1.6.9.1 and 1.6.9.2 of the PPS. As the Subject Lands, in their entirety, are located within an NEF contour above 35, the swapping of the lots will make a net-zero impact.

29Mr. Fothergill stressed to the Tribunal that the relocation of the existing development rights to a more preferable location does not represent any expansion of residential uses in a rural area. In the PPS, Policies 2.3.3.1, 2.3.4.1 and 2.3.4.2 address lot creation of agriculture lands. It is his opinion that the creation of Lots 5 & 6 would not go against these PPS policies as Lots 5 & 6 are not located within a Prime Agricultural Area. In contrast, Mr. Fothergill stated that the consolidation of Lots 1, 2 & 3 would better protect the existing agricultural operations.

30Both the Growth Plan and RHOP call for the protection of agricultural uses. Lots 5 & 6 back onto Lot 4 on the golf course. Based on the expert findings of Mr. Howe, Lots 5 & 6 are considered to have poor soil conditions while the consolidation of Lots 1, 2 & 3 have Class 1 soil, it is the testimony of Mr. Fothergill that from a planning perspective the proposal conforms to the goals of the Growth Plan and RHOP.

31Mr. Toman, planner for the City, countered with the view that the proposal is not consistent with the PPS and does not conform to the policies of the Growth Plan and RHOP.

32In his testimony, Mr. Toman stated that the proposed changes to the Subject Lands would be considered an incompatible land use as the PPS prohibits new residential development or the creation of two new residential lots located with a NEF 30 contour that is within 600 metres of the John C. Munro International airport. As the RHOP uses similar language to reinforce the prohibition of new lot creation near the airport, it was the opinion of Mr. Toman that the proposal does not conform to these policies in the RHOP.

33The Tribunal was informed by Mr. Toman that the proposed new Lots 5 & 6 are designated zoning “Open Space” in the RHOP and are identified as Airport Influence Area. The RHOP secondary Rural Settlement Area Plans s. B.3.5.1 identifies the following ancillary uses that are permittable:

a) Ancillary commercial uses such as but not limited to food concessions, recreational equipment rentals and water oriented recreational uses that are complimentary to supporting and in conjunction with a resource-based recreational and tourism use, or recreational/community centre, may be permitted provided they do not interfere with or have any negative impacts on the open space nature of the land; and,

b) One ancillary residential dwelling may be permitted in conjunction with a resource-based recreational and tourism use provided it does not interfere with or have any negative impacts on the open space nature of the land.

34It was the opinion of Mr. Toman that the Open Space policies of the RHOP do not permit the proposed new residential uses as they would not be considered an ancillary residential dwelling in conjunction with a resource-based recreational and tourism use.

DISPOSITION

35There is merit as to why the proposed OPA, ZBA and consents represent good planning. From an agricultural stance, the consolidation of Lots 1, 2 & 3 with CLI Class 1 soil in exchange for two smaller Lots 5 & 6 with poor soil conditions located on a smaller rural road makes sense. However, the legislative test requires that the Tribunal must consider all aspects of the PPS, Growth Plan and the Hamilton Official Plans when making its decision.

36Section 1.6.9 Airports, Rail and Marine Facilities of the PPS states that:

1.6.9.1 Planning for land uses in the vicinity of airports, rail facilities and marine facilities shall be undertaken so that:

a) their long-term operation and economic role is protected; and

b) airports, rail facilities and marine facilities and sensitive land uses are appropriately designed, buffered and/or separated from each other, in accordance with policy 1.2.6.

1.6.9.2 Airports shall be protected from incompatible land uses and development by:

a) prohibiting new residential development and other sensitive land uses in areas near airports above 30 NEF/NEP;

b) considering redevelopment of existing residential uses and other sensitive land uses or infilling of residential and other sensitive land uses in areas above 30 NEF/NEP only if it has been demonstrated that there will be no negative impacts on the long-term function of the airport; and

c) discouraging land uses which may cause a potential aviation safety hazard.

37It is clear that the intent of the PPS directives deem Lots 5 & 6 to be incompatible and prohibitive for new residential development as the contour range for those lots is from 35 to 40 NEF/NEP, which is above the prescribed 30 NEF/NEP.

38The Tribunal has taken into consideration the section of the Growth Plan that states:

To support goods movement, this Plan calls for a co-ordinated goods movement network that links major goods movement facilities and corridors to the provincial highway network and areas of significant commercial activity. This Plan also calls for the long-term protection of planned corridors and the co-location of infrastructure in these corridors where appropriate.

39Schedule F of the RHOP locates the Subject Lands in the Airport Influence Area. In review of the RHOP in its entirety, the Tribunal does not find that the proposed applications meet the overall objectives or conform to the RHOP. The policies found in the RHOP, section C.4.8.1, prohibit the residential development in the Airport Influence Area with an NEF contour above 35.

40The Tribunal finds that the employment and economic importance of the John C. Munroe International Airport and the related Airport Employment Growth District lands is in the greater public interest than allowance of the proposed applications. For these reasons, the appeals are dismissed.

ORDER

41THE TRIBUNAL ORDERS that the appeals are dismissed.

“Steven Cooke”

STEVEN COOKE VICE-CHAIR

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.