Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 4, 2022

CASE NO(S).: OLT-22-003989

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

Applicant and Appellant: Fengate Liuna Gardens Holdings LP

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

Existing Designation: Neighbourhoods - "Medium Density Residential 3"

Proposed Designation: "Medium Density Residential 3" with Site Specific Policy-Area

Purpose: To permit two 24-storey buildings, two 15-storey buildings, two 4-storey stacked townhouses blocks, and five 2-storey townhouse blocks

Property Address/Description: 526 Winona Road

Municipality: City of Hamilton

Reference No.: UHOPA-22-007

OLT Lead Case No.: OLT-22-003989

OLT Case No.: OLT-22-003989

OLT Case Name: Fengate Liuna Gardens Holdings LP 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: Fengate Liuna Gardens Holdings LP

Subject: Application to amend Zoning By-law No. 05-200 – Neglect or Refusal of application by City of Hamilton

Existing Zoning: Community Commercial (C3, 579) Zone

Proposed Zoning: To be determined

Purpose: To permit two 24-storey buildings, two 15-storey buildings, two 4-storey stacked townhouses blocks, and five 2-storey townhouse blocks

Property Address/Description: 526 Winona Road

Municipality: City of Hamilton

Reference No.: ZAC-22-015

OLT Lead Case No.: OLT-22-003989

OLT Case No.: OLT-22-003990

Heard: October 28, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Fengate LiUNA Gardens Holdings LP	D. Bronskill
City of Hamilton	R. McVean (P. MacDonald in absentia)
Robert Morash	M. Baker (N. Smith in absentia)
Lakewood Beach Community Council	Vivian Saunders*
Dawn Simpson	Self-represented*
Charles Puma	Self-represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON OCTOBER 28, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) with respect to appeals brought pursuant to s. 22(7) and 34(11) of the Planning Act by Fengate LiUNA Gardens Holdings LP (“Appellant”). The Appellant applied to the City of Hamilton (“City”) for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to permit the redevelopment of the property located at 526 Winona Road (“subject lands”). The Appellant proposes to redevelop the subject lands with two 24-storey buildings and two 15-storey buildings connected by a two-storey podium; two 4-storey stacked townhouse blocks; and five 2-storey townhouse blocks.

2The proposed OPA would redesignate the subject lands from Local Commercial to Medium Density Residential 3 in the Urban Lakeshore Secondary Plan. Additionally, the proposed OPA seeks to add a Site-Specific Area Policy to the subject lands. Specifically, the purpose of the OPA is to permit a maximum residential density of 425 units per hectare, whereas the net residential density range permitted for lands designated Medium Density Residential 3 in Policy B.7.3.1.7 is between 50 units per hectare and 99 units per hectare. Further, the OPA is required to permit a maximum height of 24 storeys, whereas the maximum permitted height for lands designated Medium Density Residential 3 in Policy 7.3.1.7 is 9 storeys.

NOTICE

3The Tribunal received a sworn Affidavit of Service dated September 23, 2022 confirming that proper notice of the CMC had been given. However, at the outset of today’s hearing event, some discussion ensued with respect to the sufficiency of the Notice based upon concerns raised by Charles Puma and Dawn Simpson, who appeared seeking Party Status in the proceedings.

4Counsel for the City and the Appellant both indicated that Notice had been provided in accordance with the statutory requirements and timelines. After hearing Mr. Puma’s concerns, it was determined that he and other potentially interested individuals did not receive notice because they reside beyond 120 metres of the subject property. Ms. Simpson indicated that she was aware of some individuals that did not receive notice of today’s hearing event despite residing within 120 metes of the subject property. Unfortunately, she was not immediately able to provide the names and addresses of those individuals.

5Based upon the sworn Affidavit of Service, the assurances of counsel for the City and the Appellant, and the large number of requests for Party and Participant Status received, the Tribunal is satisfied that proper notice of the hearing event was given and no further notice is required.

6However, given the possibility of what appears to be an unexplained anomalous defect in the Notice, out of an abundance of caution, the Tribunal directed Ms. Simpson to communicate with counsel for the Appellant following the CMC to provide the name(s) and address(es) of the affected individual(s). The Tribunal further directed counsel for the Appellant to provide notice of the next hearing event to those individuals. Should those individuals wish to seek Party or Participant Status, they are directed to file a written request with the Case Coordinator (ensuring the other Parties are copied) no later than 10 days in advance of the next hearing event. For clarity, status will not be automatically granted but rather, will be considered by the Tribunal at the next hearing event.

PARTIES

7In advance of the CMC, written requests for Party Status were received from:

• Robert Morash;

• Lakewood Beach Community Council;

• Dawn Simpson

• Charles Puma; and

• Marriane Wilson

8With the exception of Ms. Wilson, who advised through a representative attending the CMC that she wished to be involved in these proceedings as a Participant rather than a Party, the Tribunal granted the above noted requests on the consent of the Appellant and the City.

9A number of issues raised by the added Parties appear to overlap including, but not limited to: concerns with the density and height of the proposed development and whether there is sufficient infrastructure to support same; potential impacts in terms of traffic; as well as a perceived lack of parking and available public transit. As such, in the interest of ensuring an efficient and cost-effective hearing, the Tribunal expects the Parties will actively co-operate to ensure that the issues and evidence to be presented at a hearing on the merits are not duplicated.

10Mr. Puma and Ms. Simpson indicated they required some time to determine what evidence they intend to present and the witnesses they intend to call in support of their case. They are expected to provide the other Parties with more details in this regard in advance of the next hearing event so that a detailed Issues List (“IL”) may be drafted and presented to the Tribunal.

PARTICIPANTS

11The following individuals submitted written requests for Participant Status and were granted such status with the consent of the Parties:

• Anna Chiodo

• Alfred and Doris Chiu

• Wilfredo Florece

• Joseph Harrison

• Stefanie Howard

• Jose Jerman

• Mary Katkic

• Joseph Kozak

• David Kraulis

• Michael Mattina

• John and Brenda Van Stralen

• Holly Watts

• Carolyn Zizzo

• Gurtej Chohan

12In addition, as previously discussed, Marriane Wilson sought and, with the consent of the other Parties, was granted Participant Status.

13The Tribunal notes that written Participant Statements are to be filed in accordance with a deadline to be set out in a future Procedural Order which will govern these proceedings. Again, given the significant amount of overlap of concerns outlined in the status request forms, the Tribunal encourages the Participants to work together and explore opportunities to avoid repetition and/or minimize the number of written statements submitted for consideration in the interest of ensuring an efficient and cost-effective hearing. By way of example, some or all of the Participants may consider submitting a shared statement outlining common themes and/or jointly held concerns which may be signed by those individuals who wish to adopt same as their written Participant Statement.

NEXT STEPS AND FUTURE HEARING EVENTS

14Although counsel for the Appellant, the City and for Mr. Morash collaborated on a draft Procedural Order (“PO”) and detailed IL in advance of this CMC, it was acknowledged that revisions would be required thereto, in light of the granting of Party Status to Ms. Simpson, Mr. Puma and the Lakewood Beach Community Council. All Parties agreed to work collaboratively on a revised PO and IL and acknowledged the Tribunal’s direction to avoid duplicative issues and evidence where possible.

15At the request of the Parties, the Tribunal scheduled a 10-day hearing, which will be held by way of video hearing commencing at 10:00 am on September 18, 2023.

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Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889

Access code: 692-665-589

16The Tribunal also scheduled a subsequent CMC to held by video hearing at 10:00 am on Friday, March 3, 2023.

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Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889

Access code: 687-587-165

17The purpose of the CMC is for the Tribunal to consider any additional status requests in accordance with paragraph 6 above and for the Parties to present and discuss a revised draft PO and IL, which counsel for the Appellant undertook to submit for the Tribunal’s review no later than Wednesday, March 1, 2023.

18Parties are asked to log into these video hearings at least 15 minutes before the start of the event to test their video and audio connections.

19Parties and Participants are asked to access and set up the application well in advance of the events to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available at: https://app.gotomeeting.com/home.html

20Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line, provided above.

21Individuals are directed to connect to the events on the assigned dates at the correct times. It is the responsibility of the persons participating in hearing events by video to ensure that they are properly connected at the correct time. Questions prior to these hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.

MEDIATION AND SETTLEMENT

22The Tribunal queried whether there were opportunities for settlement, acknowledging that the proceeding is in its early stages and was advised that the Parties are open to engaging in discussions with a view to achieving settlement or at least narrowing the issues for the hearing. Parties are reminded of the availability of Tribunal-assisted mediation and, in the event they wish to avail themselves of this resource, they may make a request for same through the Case Coordinator.

OTHER MATTERS

23The Tribunal inquired as to whether there were any other matters to be addressed which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.

ORDER

24The Tribunal orders that:

a) Robert Morash, Lakewood Beach Community Council, Dawn Simpson and Charles Puma are Parties to this proceeding;

b) The following individuals are Participants in this proceeding:

• Anna Chiodo;

• Alfred and Doris Chiu;

• Wilfredo Florece;

• Joseph Harrison;

• Stefanie Howard;

• Jose Jerman;

• Mary Katkic;

• Joseph Kozak;

• David Kraulis;

• Michael Mattina;

• Marriane Wilson;

• John and Brenda Van Stralen;

• Holly Watts;

• Carolyn Zizzo; and

• Gurtej Chohan;

c) The Parties are directed to file a revised Procedural Order and Issues List no later than Wednesday, March 1, 2023, bearing in mind the Tribunal’s direction to avoid repetition where possible;

d) A further Case Management Conference will be held by video hearing at 10:00 am on Friday, March 3, 2023;

e) A 10-day hearing will be held by video hearing commencing at 10:00 am on Monday, September 18, 2023;

f) There will be no further notice beyond any additional notice which might be required as described in paragraph 6 of this Decision and Order.

25The Member is not seized but may be available for case management, should scheduling permit.

“S. Braun”

S. braun

MEMBER

Ontario Land Tribunal

Website: www.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.