Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 06, 2023 CASE NO(S).: OLT-21-001169

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

Applicant and Appellant: Valery (Chedoke Browlands) Developments Inc. Subject: Request to amend the Official Plan - Failure of City of Hamilton to adopt the requested amendment Existing Designation: Neighbourhoods and Open Space Proposed Designated: Neighbourhoods and Open Space Purpose: To permit the development of 630 residential units while retaining the Long and Bisby Building Property Address/Description: 801, 820, 828, 855, 865, and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: UHOPA-20-026 OLT Case No.: OLT-21-001169 OLT File No.: OLT-21-001169 OLT Case Name: Valery (Chedoke Browlands) Developments 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: Valery (Chedoke Browlands) Developments Inc. Subject: Application to amend Zoning By-law No. 6593 - Refusal or neglect of City of Hamilton to make a decision Existing Zoning: Low Density Multiple Dwellings Proposed Zoning: Site Specific (To be determined) Purpose: To permit the development of 630 residential units while retaining the Long and Bisby Building Property Address/Description: 801, 820, 828, 855, 865, and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: ZAC-20-041 OLT Case No.: OLT-21-001169 OLT File No.: OLT-21-001170

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

Applicant and Appellant: Valery (Chedoke Browlands) Developments Inc. Subject: Proposed Plan of Subdivision – Failure of City of Hamilton to make a decision Purpose: To permit the development of 630 residential units while retaining the Long and Bisby Building Property Address/Description: 801, 820, 828, 855, 865, and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: 25T-202008 OLT Case No.: OLT-21-001169 OLT File No.: OLT-21-001171

Heard: November 22, 2023 by Video Hearing ("VH")

APPEARANCES:

Parties	Counsel/Agent
Valery (Chedoke Browlands) Developments Inc.	Russell Cheeseman, Stephanie Fleming
City of Hamilton	Peter Krysiak
Niagara Escarpment Commission	Ken Hare, Amanda Landre

MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS and K.R. ANDREWS ON November 22, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the fifth Case Management Conference ("CMC") respecting an appeal by Valery (Chedoke Browlands) Development Inc. The appeal arises following a non-decision concerning an Official Plan Amendment ("OPA"), Zoning By-law Amendment ("ZBA"), and Draft Plan of Subdivision applications to permit the development of 630 residential units and the adaptative reuse of the Long and Bisby building for commercial uses at 801, 820, 828, 865, and 870 Scenic Drive, in the City of Hamilton.

2During the previous CMC, a 12-day merit hearing was scheduled to commence on Tuesday, February 20, 2024, and a fifth CMC was scheduled for today. As the Parties were participating in mediation, it was determined that a fifth CMC would be required to finalize the Procedural Order ("PO") and Issues List ("IL"), allowing the Parties time to potentially scope their IL and confirm the required length of the merit hearing scheduled for February 20, 2024.

PROCEDURAL ORDER AND ISSUES LIST

3The Tribunal received and reviewed a draft PO from the Parties. The Tribunal finds it acceptable, and the proceedings shall be governed by it (see Attachment 1).

4The Tribunal notes that counsel for the Appellant and the Niagara Escarpment Commission informed the Tribunal that they may be poised to further scope their respective issues and, correspondingly, shorten the hearing. With this in mind, the Tribunal is amenable to later administratively strike settled issues and release hearing dates upon confirmation of the Parties. The Tribunal consequently set a deadline of December 22, 2023, for the Parties to jointly confirm that some items may be struck from the IL and hearing dates may be released.

ORDER

5The Tribunal Orders that:

The Procedural Order appended as Attachment 1 shall govern the proceedings;
The Parties have until December 22, 2023 to inform the Tribunal of any issues to be administratively struck from the Issues List and/or release of any hearing dates; and,

6The Members are not seized but may be spoken to through the Case Coordinator if any issues arise.

"J. Innis"

J. INNIS MEMBER

"K.R. Andrews"

K.R. ANDREWS 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.

CASE NO(S).: OLT-21-001169

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

Applicant and Appellant: Valery (Chedoke Browlands) Developments Inc. Subject: Request to amend the Official Plan –Failure of the City of Hamilton to adopt the requested amendment Existing Designation: Neighbourhoods and Open Space Proposed Designation: Neighbourhoods and Open Space Purpose: To permit the development of 630 Residential units while retaining the Long & Bisby Building Property Address/Description: 801, 820, 828, 855, 865, and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: UHOPA-20-026 OLT Case No.: OLT-21-001169 OLT File No.: OLT-21-001169 LPAT Case Name: Valery (Chedoke Browlands) Developments 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: Valery (Chedoke Browlands) Developments Inc. Subject: Application to amend Zoning By-law No. 6593 –Neglect of the City of Hamilton to make a decision Existing Zoning: Low Density Multiple Dwellings Proposed Zoning: Site Specific (To be determined) Purpose: To permit the development of 630 Residential units while retaining the Long & Bisby Building Property Address/Description: 801, 820, 828, 855, 865, and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: ZAC-20-041 OLT Case No.: OLT-21-001169 OLT File No.: OLT-21-001170

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

Applicant and Appellant: Valery (Chedoke Browlands) Developments Inc. Subject: Proposed Plan of Subdivision – Failure of City of Hamilton to make a decision Purpose: To permit the development of 630 Residential units while retaining the Long & Bisby Building Property Address/Description: 801, 820, 828, 855, 865, and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: 25T-202008 OLT Case No.: OLT-21-001169 OLT File No.: OLT-21-001171

PROCEDURAL ORDER

The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties' request or its own motion.

Organization of the Hearing

The video hearing will begin on Tuesday, February 20, 2024, at 10 a.m. by Videoconference.
The parties' initial estimation for the length of the hearing is 12 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1 to this Order.
The issues are set out in the Issues List attached as Attachment 2 to this Order. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative's name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal's Video Hearing Guide, available on the Tribunal's website.

Requirements Before the Hearing

A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, February 10, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness' Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before Friday, December 15, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts' meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Friday, December 22, 2023.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert's testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert's evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness' evidence, as in paragraph 13 below.
On or before Friday, January 5, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before Friday, January 5, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Friday, February 2, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, January 26, 2024, and in accordance with paragraph 21 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, February 2, 2024.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal's Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Wednesday, February 14, 2024, with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal's Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Attachment 1

PARTIES

Valery (Chedoke Browlands) Developments Inc.
City of Hamilton
Niagara Escarpment Commission

PARTICIPANTS

Kayleen Edwards
Andrea Nelson

Attachment 2

Issues List

City of Hamilton:

Planning

Is the development proposal consistent with the Provincial Policy Statement (2020) ("PPS"), including but not limited to policies 1.1.1, 1.1.3.1, 1.1.3.2, and 1.1.3.3?
Does the development proposal conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended), including but not limited to policies 2.2.1.2 and 2.2.1.4?
Does the development proposal comply with the Urban Hamilton Official Plan ("UHOP"), including but not limited to Volume 1 policies E.3.6.1, E.3.6.2, E.3.6.4, E.3.6.6, E.3.6.7, and F.1.14.1.2?
Does the development proposal meet the residential intensification tests of the UHOP in terms of establishing a relationship that maintains, enhances, and builds upon the existing neighbourhood character and contributes to maintaining and achieving an appropriate range and mix of dwelling types and tenures, as required by UHOP Volume 1 policies B.2.4.1.4 and B.2.4.2.2?
Does the development proposal comply with the Chedmac Secondary Plan and the Area Specific policies within the Chedmac Secondary Plan, including but not limited to UHOP Volume 2 policies B.6.3.2.2, B.6.3.2.4, B.6.3.7.2.1, B.6.3.7.2.2, and B.6.3.7.2.8?
Does the proposal to repeal and replace the Area Specific policies of the Chedmac Secondary Plan have sufficient regard to the intent of the policy framework, including but not limited to UHOP Volume 2 policy B.6.3.7.2.?
Does the proposal conform to the urban design policies of the Urban Hamilton Official Plan, including but not limited to Volume 1 policies B.3.3.2.3, B.2.3.3.18, and E.3.2.7 and the Chedmac Secondary Plan Volume 2 policy B.6.3.7.2.4?
Are the proposed site-specific performance standards compatible and in keeping with the intent of Hamilton Zoning By-law Nos. 05-200 and 6593?
Does the development proposal provide for a compatible integration with the surrounding area in terms of scale, form, and character, as required by PPS Policy 1.2.6.1 and UHOP Volume 1 policies E.2.4.16, E.3.2.4, and E.3.3.2? Specifically, does the proposal address matters such as: a. Maintaining or enhancing character of the area or neighbourhood; b. Pedestrian connections; and, c. Views to and through the site.
Are the proposed scale, density and height of the proposed development appropriate for this location?
Does the proposal have any undue adverse impacts on the surrounding existing neighbourhood, including cumulative negative impact of increased building height and density, reduced setbacks from Scenic Drive, and reduced separation distances between buildings?
Is the draft plan of subdivision approval premature until such time as the necessary zoning by-law amendment to implement the proposal is approved, including an appropriate Holding Provision on the subject lands?
Is draft plan of subdivision approval premature until such time as the necessary official plan amendment is approved?
Does the application have sufficient regard for the matters in s. 51(24) of the Planning Act?
What is the appropriate form and content of the proposed zoning by-law amendment(s)?
Does the proposed development represent good land use planning and is in the public interest?

Engineering

Is the development proposal consistent with PPS policies 3.1.2 and 3.1.3 with respect to the existing natural hazards on site, including the existing floodway?
Does the proposal comply with UHOP Volume 1 policies C.4.0 and C.5.0 and the Chedmac Secondary Plan Volume 2 policies B.6.3.7.2.7 and B.6.3.7.2.8?
Is there sufficient sanitary sewer capacity for the proposed draft plan of subdivision and can the proposed sanitary and is the design of the proposed sanitary servicing appropriate and achievable?
Is there sufficient water service capacity for the proposed draft plan of subdivision?
Does the proposal satisfy all requirements and comments identified by Development Approvals including but not limited to grading, stormwater management and servicing and compliance with UHOP policies C.4.0 and C.5.0?
Can storm water quality and quantity be managed appropriately by the design of the proposed development, including but not limited to: a. responsibilities for construction costs and ongoing maintenance; b. conveyance of stormwater, including location of outlets for external drainage; c. design and location of the proposed stormwater management tank; d. dedication of lands or easements to the City; e. a requirement for any joint services agreement between proposed blocks; f. impacts of the existing bedrock elevation; and, g. site grading, elevation, and drainage?
Does the functional servicing report submitted by the applicant adequately address issues 17-22?

Natural Heritage

Does the proposal satisfy the requirements to protect and enhance the natural heritage feature(s) within and abutting the property as per the natural heritage policies in the Urban Hamilton Official Plan and Provincial policy documents, including but not limited to: a. PPS policies 2.1.1, 2.1.2, 2.1.3, 2.1.5, 2.1.6, 2.1.7, 2.1.8, 2.2.2, and 3.1.1; b. Growth Plan policy 4.2.2; and, c. UHOP Volume 1 policies C.1.1.1, C.1.1.6, Section C.2.0 and Volume 2, B.6.3.1, B.6.3.7.2.3, B.6.3.7.2.6 d).
Does the development proposal conform to the Niagara Escarpment Plan (2017), including but not limited to policy 1.7.5 and 2.5 with respect to matters including but not limited to visual, noise, vibration, and light impacts on the existing natural landscape, particularly the Niagara Escarpment, and ecological features, both during construction and occupancy?
Does the applicant's Environmental Impact Statement demonstrate that the features and functions of the Core Areas will not be negatively impacted, including required setbacks, as required under the Urban Hamilton Official Plan, including but not limited to Volume 1 policies C.2.2.8, C.2.3, C.2.3.1, C.2.3.2, C.2.3.3, C.2.5.3, C.2.5.4, C.2.5.5, C.2.5.7, C.2.5.8, C.2.5.9, C.2.5.10, C.2.5.11, C.2.5.12, C.2.5.13, and Volume 2, B.6.3.3.1, B.3.6.7.2.3?
Does the applicant's Environmental Impact Statement demonstrate that the boundaries of the Core Areas comply with the Urban Hamilton Official Plan policies, including but not limited to Volume 1 policy C.2.2.2?
Has adequate consideration been given to the protection of trees as per UHOP Volume 1 policy C.2.11.1 and Volume 2 B.6.3.7.2.6 with respect to matters including but not limited to removal of private and public trees and the ecological impacts of the proposed watercourse realignment and the Significant Woodland and the lack of quality on-site streetscape, amenity areas, and landscaped areas?

Cultural Heritage

Does the proposed development provide for the conservation and protection of the significant built heritage resources and significant cultural heritage landscapes as required by PPS policy 2.6.1 including but not limited to parklike setting of the woodlot, open spaces, and built heritage features, and lacking public frontage and views through the site from and between Scenic Drive, the central open space, the Long and Bisby Building, and the Cross of Lorraine?
Does the development proposal comply with the Area Specific policies within the Chedmac Secondary Plan, including but not limited to UHOP Policies, Volume 2 B.6.3.7.2.6 and B.6.3.7.2.8?

Traffic and Transportation

Does the proposed road network comply with the Urban Hamilton Official Plan, including but not limited to UHOP Volume 1 policy C.4.5 and the Chedmac Secondary Plan Volume 2 policies B.6.3.7.2.5 and B.6.3.7.2.8?
Would the proposed development result in a functional road network to safely support the anticipated traffic associated with the development proposal by preventing or satisfactorily mitigating adverse impacts, including but not limited to street pattern, roundabout/intersection design, vehicular access, road infrastructure improvements, removal of loading requirements, signalization, site and internal road and roundabout layout, pedestrian facilities, vehicle maneuverability, and design and location of the proposed underground parking?
Is the size of the proposed municipal right-of-way for the proposed roundabout sufficient to address the above noted traffic network requirements and to provide for required municipal sidewalks, crosswalks, boulevards, and utilities?
Does the proposal provide adequate parking and loading for the site while avoiding excess supply that can impact transit use, active transportation, infrastructure, and maneuvering as required by UHOP policies C.4.5.15 and C.4.15.19 for new development adjacent to arterial or collector roads?
What road alignment is required in order to address impacts on natural heritage features?

Miscellaneous

Should the appeal be granted, what are the appropriate conditions of draft plan approval, including any conditions from previous file PL100691?
What dedications of lands or easements to the City are necessary to implement the proposal?

Niagara Escarpment Commission:

Do the proposed applications for an Official Plan amendment, Zoning By-law amendment, and draft Plan of Subdivision and conditions conform to/not conflict with the Niagara Escarpment Plan ("NEP"), including as set out in the issues below.

Natural Heritage

Do the applications conform to/not conflict with natural heritage policies in the NEP relating to the protection and enhancement of natural heritage features and functions; development setbacks (including grading) to natural heritage features; recommendation of an adequate vegetation protection zone; plans that implement the recommended vegetation protection zone; grading and development encroachments; trail planning; tree replacement; construction measures; identification of the accurate area of disturbance including for temporary construction; and applicable policy application to the restoration area (NEP Purpose, Objectives 1, 2, 5, and 7, and Parts 1.7.1, 1.7.5.4, 1.7.5.9, 2.2, 2.2.1, 2.7, 2.11, 2.11.1, 2.11.7, 2.11.8, 2.12, and 2.12.2; and Part 2.11.9 that directs consideration of Greenbelt Plan policies 3.3.2.2 and 3.3.3.4.g)?
Do the applications accord with the Ontario Court of Justice Order issued on January 14, 2019, to restore the woodland, as depicted on the Concept Plan dated August 24, 2020? (NEP Purpose, Objectives 1, 2, 5, and 7, and Part 2.2.1)?

Water Resources

Do the applications conform to/not conflict with the water resources policies of the NEP as they relate to: classification of the development proposed within a watercourse; justification for realigning the watercourse; alternatives to realigning the watercourse; protection and enhancement of hydrologic features and functions at the local and watershed level; establishing an adequate vegetation protection zone for the watercourse; quality and quantity of groundwater and surface water; natural drainage impacts; and water taking/dewatering (NEP Purpose, Objectives 1, 2, 4, and 5, and Parts 1.7.1, 1.7.1.9.f-g, and Parts 2.2.1, 2.2.2, and 2.6)?

Sustainability

Do the applications conform to/not conflict with policies of the NEP that relate to reduced energy consumption, improved air quality, reduced greenhouse gas emissions, working towards the goal of low-carbon communities, including net-zero communities, increased resilience to climate change, including through maximizing opportunities for the use of green infrastructure and appropriate low impact development (NEP Parts 1.7.5.2, 1.7.5.9.e-g, 2.2.6, 2.12, 2.12.1, 2.12.3)?

Infrastructure

Does the proposed development conform to/not conflict with the policies of the NEP that relate to applicable water, wastewater and stormwater masterplans and subwatershed studies; identification of alternatives to avoid impacts to key hydrologic, key natural heritage features or scenic resources; identification of construction methods that avoid negative impacts to key natural heritage features, key hydrologic features or creating unsafe conditions from a slope stability perspective; and identification of sustainable alternatives (NEP Purpose, Objectives 1, 2, 4, 5, 7, and Parts 2.2.1, 2.2.2, 2.2.6, 2.5, 2.6, 2.7, 2.12, and 2.13)?