Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 14, 2023

CASE NO(S).: OLT-22-002820 (Formerly PL171184)

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Parkside Hills Inc. (Country Green Homes Inc.)

Subject: Conditions of approval of draft plan of subdivision – Phases 2B & 2C

Property Address/Description: 609 & 615 Hamilton St. N., 3 Nisbet Boulevard and 129-137 Truedell Drive – Phases 2B & 2C

Municipality: City of Hamilton

Municipal File No.: 25T-201003

OLT Case No: OLT-22-002820

OLT File No.: OLT-22-002820

Legacy Case No.: PL171184

Legacy File No.: PL171184

Case Name: Parkside Hills Inc. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 51(43) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Parkside Hills Inc. (Country Green Homes Inc.)

Subject: Conditions of approval of draft plan of subdivision – Phases 2B & 2C

Property Address/Description: 609 & 615 Hamilton St. N., 3 Nisbet Boulevard and 129-137 Truedell Drive – Phases 2B & 2C

Municipality: City of Hamilton

Municipal File No.: 25T-201003

OLT Case No: OLT-22-002820

OLT File No.: OLT-22-002821

Legacy Case No.: PL171184

Legacy File No.: PL171185

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: Parkside Hills Inc. (Country Green Homes Inc.)

Subject: Site Plan

Property Address/Description: 609 & 615 Hamilton St. N., 3 Nisbet Boulevard and 129-137 Truedell Drive – Phases 2B & 2C

Municipality: City of Hamilton

OLT Case No: OLT-22-002820

OLT File No.: OLT-22-002822

Legacy Case No.: PL171184

Legacy File No.: PL171186

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Parkside Hills Inc.

Subject: Proposed Plan of Subdivision - Failure of the City of Hamilton to make a decision

Purpose: To permit a proposed plan of subdivision

Property Address/Description: Part of Lot 8, Concession 4, municipally known as 619 Centre Road

Municipality: City of Hamilton

Municipality File No.: 25T-201003

Legacy Case No.: PL101121

Legacy File No.: PL101121

PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Parkside Hills Inc.

Request for: Request for Directions

Heard: October 18, 2023 by written hearing

APPEARANCES:

Parties

Counsel

City of Hamilton (“City”)

P. D’Souza P. MacDonald

Parkside Hills Inc. (“Appellant”)

S. Snider A. Toumanians

DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

Link to Final Order

Introduction

1This Motion addresses whether the Tribunal has authority to adjudicate a dispute over the cost-sharing value of Storm Water Management (“SWM”) land that is to be conveyed from the Appellant to the City.

2The City’s Motion asks the Tribunal to dismiss the Appellant’s request for the Tribunal to adjudicate on the SWM land value when considering the Appellant’s appeal to certain Conditions of draft plan approval for its Subdivision (“SUB”).

3The Appellant’s Response to Motion asks the Tribunal to dismiss the City’s Motion and enable the appeals to SUB Conditions, including the question of land value, to proceed to a Hearing on the Merits.

4The Tribunal will dismiss the City’s Motion, having found that the Conditions specifically reference a land value that has expired, and that the Tribunal has authority under s. 51(56) of the Planning Act to consider all matters relevant to an appealed Condition.

Factual Background

5Past Decisions and Orders of the “Tribunal” on this aging file, referenced below, were issued by the Tribunal’s predecessors: the Ontario Municipal Board or the Local Planning Appeal Tribunal. All cited section numbers refer to the Planning Act, unless otherwise noted in reference to the Development Charges Act (“DCA”). Underlines indicate the Tribunal’s emphasis of relevant citations.

6In 2012, the Tribunal dismissed the Appellant’s appeals to the City’s 2009 and 2011 DCA By-laws (“DCBL”) based on the Parties’ Minutes of Settlement that referenced SWM.

7The agreed exchange was set out in para. 6 of the Settlement:

6. The City and Parkside agree that the cost for the storm water management pond (the “SWMP”) for the Parkside Phase 2 Plan shall be one hundred and seventy-five thousand dollars ($175,000) per acre (the “Agreed Upon Amount”). The Agreed Upon Amount shall be applicable until May 31, 2017. The Agreed Upon Amount shall be payable when the land for the SWMP is conveyed in fee simple without encumbrances to the City.

8In 2013, the Tribunal approved planning applications, based on the Parties’ settlement, including the SUB draft plan approval. The Tribunal authorized the City to clear the SUB Conditions, and the Tribunal could be spoken to if issues arose while implementing the Conditions.

9In 2014, the Tribunal approved modifications to the SUB on consent of the Parties. Condition 7(ii) in the 2014 Decision (which renumbered Condition 8 from the 2013 Decision) requires the Appellant to convey to the City the lands for SWM:

(7) That Prior to Registration the Owner shall ensure that provisions are in place, to the satisfaction of the Senior Director of Growth Management, for the following: …

ii) to submit the necessary transfer deeds to the City to convey all lands necessary for the construction of the SWM facility, and any additional lands required to accommodate the final design, in accordance with the City's standards; …

10The SUB Conditions also contain an un-numbered Condition, or an extension of Condition 54, addressing cost sharing and where to find the amount:

CITY COST SHARING

The City of Hamilton will share costs with the Owner for the stormwater management facility, based on the upset limit identified in the current Development Charges Background Study, and in accordance with the City's financial policies and as outlined by the D/C Settlement Agreement between Parkside Hills Inc. and the City.

11Such cost sharing and conveyance has not yet occurred.

12The Parties’ DCBL settlement in 2012 set the City’s contribution for the SWM land at $175,000 per acre, payable to the Appellant upon conveyance to the City, and applicable until May 31, 2017. No direction was included as to what price would apply or what process would occur after that date.

13In 2015, the signed SUB Agreement began guiding the ongoing development of the remaining unbuilt phases of the draft SUB. The SUB Agreement, in s. 1.05(a), refers to the SUB Conditions for details on land dedications.

14In 2017, the Appellant lodged the present appeal under s. 51(43) to which this Motion of the City arises. The appeal references the Conditions related to SWM and seeks “a fair and just, reasonable approach to advancing the Plan to final approval and registration.”

15In 2018, the Tribunal reopened the Appellant’s original s. 51(34) appeal and consolidated it with the 2017 appeal of Conditions.

16In 2019, the City passed a new DCBL based on the 2019 Background Study, which Study includes the cost of this SWM land in Appendix G, citing $756,744. The 2019 DCBL will expire in mid-2024.

17In 2022, the Appellant filed an Expropriations Claim seeking compensation of $5.6 million for the SWM land. Upon the City’s Motion, the Tribunal dismissed the Claim, having found the absence of jurisdiction under the Expropriations Act and no reasonable prospect of success.

Positions

18What follows are the highlights perceived by the Tribunal on the Parties’ clear, thorough and helpful written submissions.

City

19The City’s Motion seeks the Tribunal’s direction to not allow the value of the SWM land to be considered, given the absence of jurisdiction, and neither the Appellant’s appeal reasons nor the cited SUB Conditions address value.

20The City argues that the Condition in question deals with a voluntary conveyance of land between willing Parties and that no statutory authority enables the Tribunal to adjudicate. It is for the Parties alone to agree on value.

21Given the Parties’ agreement on value that resulted in a settlement and withdrawal of the Appellant’s appeal to previous DCBLs, issue estoppel prevents the Appellant from attempting to raise the issue again. The Appellant’s request is res judicata.

22The Background Study to the 2019 DCBL specifically notes the agreed price for the SWM lands to be purchased by the City. The Appellant did not appeal the 2019 DCBL.

23The Appellant’s 2017 appeal to the SUB conditions does not refer to the specific Condition regarding the land value, but rather Condition 7 which speaks to the process for conveying the SWM lands, but does not address the value of those lands.

Appellant

24The Appellant responds that the issue on this motion is very narrow, being whether the Tribunal has jurisdiction to determine whether draft plan Conditions to convey land for SWM to the City for an amount considered reasonable in 2012, continues to be reasonable in 2023.

25An error in law would occur if the Tribunal were to decline to exercise its adjudicative jurisdiction.

26While the noted settlement in 2014 addressed the cost arrangement, the Tribunal did not adjudicate on such under the DCA because that appeal was withdrawn; thus, the Appellant’s position today is not res judicata.

27The SUB appeal was adjudicated by the Tribunal by endorsing the settlement which referenced the cost arrangement. That appeal has been reopened by the Tribunal for the purpose of hearing the Appellant’s 2017 appeal to certain SUB Conditions under s. 51(43) of the Act, which has yet to be heard.

28The Background Study to the DCBL is just that: background. The Study constitutes inputs to the DCBL, and the DCBL itself does not address the conveyance or valuation of the Appellant’s SWM lands. The DCA does not limit the Tribunal’s discretion attributed to it by s. 51(56) of the Act.

29No jurisprudence exists to the effect that the Tribunal lacks jurisdiction to adjudicate on SUB Conditions that compel the conveyance of land, whether by dedication or for a specified value.

Findings

30The Tribunal finds that the issue of land valuation requires resolution to enable the fulfillment of Conditions and the registration of a final-approved SUB. Resolution may be found either by approving this Motion, in which case the Parties would need to pursue other avenues, or by dismissing this Motion to enable a Hearing on the Merits to ensue.

31The Tribunal denies the Motion for the following reasons.

32Section 51(43) enables an Appellant, any time prior to final approval of a SUB, to appeal any of the draft plan Conditions to the Tribunal. Upon such appeal, s. 51(56) directs that the Tribunal “shall determine the question as to the conditions appealed to it.”

33In overview, the Tribunal finds that this matter should proceed to a Hearing on the Merits to determine whether the financial arrangements for SWM land, deemed reasonable in 2012, remain reasonable in 2023. The Tribunal anticipates valid arguments on both sides of this question, warranting careful review and adjudication. One focal issue may be: what is the relevant date for fair market value to be determined for the City’s component of the SWM land?

34As a preliminary finding, the Tribunal does not accept the City’s argument that the Appellant’s appeal to the SUB Conditions failed to specifically address the clause addressing monetary value and, therefore, should not be considered in this case. The appeal letter, while focussed on other matters, does reference “Conditions 2, 6 and 7 inclusive which deal with obtaining final approval of the storm water pond and channelization.” The Tribunal accepts that the cost sharing component of the SWM land is fundamental to the resolution of Condition 7 and thus, may be addressed through this appeal process. Regardless, it is obvious to the Tribunal that the “expiry date” for the agreed price warrants a renewed look at the cost sharing issue and will be considered under this appeal. If the Tribunal found otherwise here, the Appellant could simply appeal again with specific reference to the cost sharing Condition, being an action that the Tribunal finds unnecessary when enabling a fair and efficient resolution of this dispute.

35The Tribunal finds for the Appellant that res judicata is not offended here. The SUB Condition, through its reference to the DCBL Settlement, enacts the agreed price “until May 31, 2017.” No Decision has been rendered on what the price of the affected lands will be after that date. Being embedded in a SUB Condition places this question within the Tribunal’s jurisdiction under s. 51(43). The Tribunal accepts that s. 51(43) enables an appeal to SUB Conditions, without restrictions on the nature of the Conditions under appeal. Thus, land valuation in this case may arise as an issue, given its express reference, albeit to another document, within the SUB Conditions.

36Similarly, to the City’s reference to various Court cases in its arguments for res judicata, the Tribunal finds a fundamental difference in this appeal. The SUB Condition in question has expired. Despite the question raised by this Appeal having been addressed in 2012, and referenced in subsequent DCBL Background Studies, there has been no Hearing on the Merits where, it appears, a new SUB Condition is required. The Tribunal agrees that “the law rightly seeks a finality to litigation” but there has been no re-litigation since the passing of the SUB Condition “expiry date.”

37The City implies that the absence of an appeal from the Appellant to the currently in-force DCBL, which included the said amount for these lands in its Background Study, amounts to the Appellant’s acceptance of that stated value today. The Tribunal disagrees. The City may utilize many different sources for values that comprise the Background Study to a proposed DCBL. Here, the absence of an appeal may have left it unchallenged and untested, but that does not make it correct, a best fit, or an eventual fact. The City chose a value for this site established several years earlier and one that contained what may be considered a “sunset clause.” Again, the Tribunal finds that DCBL history has no effect on its finding that this specific SUB Condition is entitled to an appeal and may be heard by the Tribunal. One need only read the “sunset date” referenced via the SUB Condition to know that this Condition needs revision.

38The Tribunal notes, in s. 51(25), that an approval authority may decide what SUB Conditions to impose and that the cited requirements in ss. (a) through (e) are not exclusive. Moreover, the Tribunal notes that ss. (d) specifically enables an agreement:

… dealing with such matters as the approval authority may consider necessary, including the provision of municipal or other services; …

39Here, the Tribunal finds that SWM is a municipal service for which the City addressed in an agreement with the Appellant. Although that agreement arose from a DCBL appeal, it was co-incident with resolving the SUB appeal, and is clearly referenced in the “City Cost Sharing” Condition for the SUB.

40The Parties disagree on the reasons why case law related to this matter is scarce or absent. The City contends that financial agreements between a willing buyer and willing seller are not open to contest, and thus absent in the case law. The Appellant argues that the absence of cases to the contrary, means that the Tribunal may exercise its clear authority under the Act. As evident above, the Tribunal takes a practical approach here. There was an agreement between the Parties, but that agreement expired in 2017. No agreement exists today, yet the SUB Condition remains unchanged. Its resolution warrants a Hearing on the Merits. The Tribunal finds no prohibition in s. 51(43) and (56) that would limit its ability to consider a necessary re-writing of a SUB Condition.

41It appears that the City is hoping to retain the originally agreed land value by relying on its reference to subsequent DCBLs and its argument that the Tribunal lacks authority to adjudicate on matters of cost or value. Nevertheless, the Tribunal finds that the SUB Conditions, with which the City agreed, specifically refer to a dollar value by pulling into the SUB Conditions the wording of a settlement agreement. The relevant Condition is found to be under appeal and requires resolution to enable this SUB to proceed. At the Hearing on the Merits, the City, should it wish, may advance its position on the relevant date for establishing value, as it is entitled to do.

42It is clear to the Tribunal that the cost sharing condition needs to be rewritten. As noted above, that issue is found to be before the Tribunal in this appeal.

43Should this Decision be found wrong in law, then the land value will need to be addressed through another forum. One way or another, this dispute warrants resolution to enable the development to proceed. The Parties are reminded that Tribunal-led mediation services are available upon request.

44The Tribunal bases its findings here on the fact that the SUB Conditions clearly address the method, price (with a time limit), and process for the lands to be transferred. A Condition may be appealed under s. 51(43) of the Act. In accordance with the OLTA s. 12(2), the Tribunal finds that “the best opportunity for a fair, just and expeditious resolution” is the holding of a Hearing on the Merits for the appealed Conditions, which encompass unresolved matters of cost sharing.

Order

45The Tribunal Orders that the City’s Motion is dismissed and the Parties may request a Case Management Conference to prepare for a Hearing on the Merits.

“S. Tousaw”

S. tousaw VICE-CHAIR

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.