499 Mohawk Inc. v. Hamilton (City), 2023 CanLII 115108

Ontario Land Tribunal

Issue Date: November 30, 2023

Case No(s).: OLT-23-000795

Proceeding commenced under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 499 Mohawk Inc. Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses Reference Number: UHOPA-23-001 Property Address: 499 Mohawk Road East Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000795 OLT Lead Case No: OLT-23-000795 OLT Case Name: 499 Mohawk Inc. v. Hamilton (City)

Proceeding commenced under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: 499 Mohawk Inc. Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses Reference Number: ZAC-23-001 Property Address: 499 Mohawk Road East Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000797 OLT Lead Case No: OLT-23-000795

Heard: November 15, 2023 by video hearing

Appearances

Parties 499 Mohawk Inc.

Counsel Patrick Harrington Matthew Helfand (in absentia)

Parties City of Hamilton

Counsel Patrick MacDonald Peter Krysiak (in absentia)

Memorandum of Oral Decision Delivered by S. Bobka on November 15, 2023 and Order of the Tribunal

Introduction

1This was the first Case Management Conference ("CMC") regarding appeals pursuant to subsections 22(7) and 34(11) of the Planning Act ("Act") by 499 Mohawk Inc. ("Applicant") regarding the failure of the City of Hamilton ("City") to make decisions on applications for an Official Plan Amendment ("OPA") and a Zoning By-law Amendment ("ZBA") for the property municipally known as 499 Mohawk Road East ("Subject Property") in the City.

2The Tribunal received an Affidavit of Service, sworn by Natalie Hickey, confirming that Notice of this first CMC was given, and marked it as Exhibit 1. Upon review and consideration, and with no issues raised by the Parties, the Tribunal finds that Notice was appropriately given and that no further notice is required.

Subject Property and Effect of Proposal

3The Subject Property is approximately 3.9 hectares in size with approximately 196 metres ("m") of frontage on Mohawk Road East and 118 m of frontage on Upper Sherman Avenue. Access is provided via each aforementioned road with connection to an internal roadway. The Subject Property is square-shaped and is occupied by a commercial strip mall that contains a vacant grocery store and other commercial uses that have ceased operation. Existing nearby development includes a mix of one- and two-storey detached dwellings as well as 6-12 storey apartment buildings.

4The proposal is to permit a total of 1,995 dwelling units in the following forms: two 25-storey multiple dwellings, one 20-storey multiple dwelling, two five-storey multiple dwellings, one 13-storey multiple dwelling, two eight-storey multiple dwellings and seven three-storey townhouse dwellings. A total of 1,945 dwelling units would be in the proposed multiple dwelling buildings, with 50 units in the proposed townhouses. The proposed development will feature 1,995 resident and visitor parking spaces contained in surface parking spaces and an underground parking garage, as well as 95 short term bicycle parking spaces and 948 long term bicycle parking spaces.

5An Official Plan amendment is required to amend Schedule E-1 of the Urban Hamilton Official Plan ("UHOP") from District Commercial to Mixed Use - Medium Density. The change would permit the housing types and densities proposed. It would also amend Map 2 of Volume 3 to the UHOP to create a site-specific exception to Policy E.4.6.5 to permit a maximum of 25 storeys on the Subject Property.

6The Subject Property is zoned "District Commercial (C6)" Zone under the City's Zoning By-law No. 05-200. The ZBA is required to rezone the Subject Property to a site specific "Mixed Use Medium Density (C5,__)" Zone. The proposed ZBA will provide the necessary site specific zoning provisions to facilitate the proposed multiple dwellings and townhouse dwellings, containing 1,995 dwelling units, including but not limited to interior side yards, building heights, setbacks and landscaped areas.

Status Requests

7In response to the Notice, the Tribunal received fifteen requests for Participant status from the following individuals:

1. Zita Bersenas-Cers
2. Gina Graham
3. Jason Freeman
4. Matthew Borsellino
5. Douglas Gregory MacDonald
6. Stacey Kursikowski
7. Shari Gray
8. Elaine & Mark Gee
9. Angelo Mosca Jr.
10. Penny Bryce
11. Todd Bryce
12. Dave Forsyth
13. Alice Phillips
14. Lisa Legault
15. Julian Andreychuk

8The concerns expressed included (but were not limited to): the project's proposed density, height, size and massing, overburden of infrastructure, increased traffic, parking issues, pedestrian safety, sun/shadow impacts, impacts of construction, lack of commercial spaces, lack of affordable housing units and lack of fit with the existing neighbourhood. Upon review and consideration, and with no objections from the Parties, the Tribunal granted all requests for Participant status.

Tribunal Led-Mediation

9Upon inquiring into possible opportunities for settlement or mediation, the Tribunal was advised of the Parties' interest in Tribunal-led mediation. The intake process has begun and will be coordinated by the Case Coordinator with carriage of the file. Mr. Harrington was hopeful that this process could assist in settling or scoping the issues to be resolved. Mr. MacDonald highlighted that instructions regarding the proposal had not yet been received from City Council, but were expected by December 2023.

Next Steps

10Counsel for the Applicant confirmed that discussions with the City had been occurring regarding the mediation process and possible paths forward. It was jointly suggested by the Parties that a second CMC be set no earlier than March 2024, which would allow time for the mediation process to unfold. Mr. Harrington advised that a draft Procedural Order ("PO") including a refined Issues List ("IL") would be provided in advance of a second CMC and suggested that dates for the Merit Hearing could be requested then as well as necessary.

Scheduling of Future Hearings

11Upon review and consideration, the Tribunal scheduled a second CMC on Tuesday, March 19, 2024 at 10 a.m. by video hearing.

12Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

13Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

14Persons 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: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 979-388-733.

15Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal's Case Coordinator having carriage of this case.

Order

16The Tribunal Orders that:

a) Participant status is granted to the following:

1. Zita Bersenas-Cers
2. Gina Graham
3. Jason Freeman
4. Matthew Borsellino
5. Douglas Gregory MacDonald
6. Stacey Kursikowski
7. Shari Gray
8. Elaine & Mark Gee
9. Angelo Mosca Jr.
10. Penny Bryce
11. Todd Bryce
12. Dave Forsyth
13. Alice Phillips
14. Lisa Legault
15. Julian Andreychuk

b) A second Case Management Conference is set for Tuesday, March 19, 2024 at 10 a.m. by video hearing;

c) The draft Procedural Order (including Issues List) will be provided to the Tribunal for review and consideration on or before Tuesday, March 5, 2024;

d) There will be no further notice; and

e) The Member is not seized on this matter.

"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.