Centurion (Dundas) Holdings Ltd. v. Hamilton (City), 2023 CanLII 116947

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 04, 2023

CASE NO(S).: OLT-21-001799 (Formerly PL171450)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1826210 Ontario Inc.

Appellant: Centurion (Dundas) Holdings Ltd

Appellant: Marz Homes Holdings Inc

Appellant: Ministry of Municipal Affairs; and others

Subject: Proposed Official Plan Amendment No. 69

Description: Official Plan Amendment to amend policies within the Commercial and Mixed Use Designations and update mapping within the Urban Hamilton Official Plan

Municipality: City of Hamilton

Municipal Reference No.: OP-69

OLT Case No.: OLT-21-001799

Legacy Case No.: PL171450

OLT Lead Case No.: OLT-21-001799

Legacy Lead Case No.: PL171450

OLT Case Name: Centurion (Dundas) Holdings Ltd. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1804487 Ontario Inc.

Appellant: 1826210 Ontario Inc.

Appellant: 2294643 Ontario Inc.

Appellant: 2531083 Ontario Inc.; and others

Subject: By-law No. 17-240

Description: Zoning By-law Amendment is to introduce Commercial and Mixed Use Zones and a Utility Zone, to establish mapping and text within the City of Hamilton Zoning By-law No. 05-200

Municipality: City of Hamilton

Municipal Reference No.: 17-240

OLT Case No.: OLT-21-001806

Legacy Case No.: PL171451

OLT Lead Case No.: OLT-21-001799

Legacy Lead Case No.: PL171450

Heard: October 10, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

1826210 Ontario Inc.

Jennifer Meader

City of Hamilton

Peter Krysiak

MEMORANDUM OF ORAL DECISION DELIVERED BY J. Innis and C. I. Molinari ON October 10, 2023 AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Tribunal had originally scheduled a six-day Merit Hearing of the appeals by 1826210 Ontario Inc. (“Appellant”), owner of the lands known municipally as 3011 Homestead Drive (“Subject Property”), concerning the City of Hamilton’s (“City”) adoption of Official Plan Amendment (“OPA”) No. 69 (“OPA 69”) and associated Zoning By-law Amendment No. 17-240 (“ZBA 17-240”), which amends the City’s comprehensive Zoning By-law No. 05-200 (“ZBL 05-200”). OPA 69 and ZBA 17-240 are in force and effect pursuant to previous Decisions of the Tribunal, except as they relate to remaining site-specific appeals, including the appeals related to the Subject Property.

2The City has an ongoing process to implement ZBL 05-200 in stages, which will eventually eliminate the individual Zoning By-laws of the former municipalities that now constitute the City. The purpose of ZBA 17-240 is to create new Mixed-Use, Commercial and Utility zones, and to bring the land regulated by ZBA 17-240 into the ZBL-05-200 zoning area to create consistent zoning within the urban area.

3The purpose of OPA 69 is to add new policies and amend existing policies, maps and schedules so that the proposed Commercial and Mixed-Use zones under ZBA 17-240 conform to and implement the Urban Hamilton Official Plan (“UHOP”).

4Prior to the commencement of the Hearing, the Tribunal received correspondence from the City advising that the Parties had reached a settlement on the issues on the basis of the implementation of a site-specific zoning by-law amendment (“Proposed ZBA”) and requested that the Merit Hearing be converted to a Settlement Hearing.

5In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a Hearing on the terms of the settlement.

6As explained below in paragraphs [18] and [19], the Appellant advised the Tribunal that, at this hearing event, only the appeal related to ZBA 17-240 filed under s. 34(19) of the Planning Act (“Act”) was being pursued, and not the appeal related to OPA 69 filed under s. 17(24) of the Act, however, the Appellant wished to maintain its appeal against OPA 69 at this time.

7As such, the Tribunal only turned its mind to the merits of the appeal against ZBA 17-240 and the Proposed ZBA, and not to the merits of the appeal against OPA 69.

8When considering an appeal filed pursuant to s. 34(19) of the Act, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and to the UHOP.

9In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Proposed ZBA represents good planning and is in the public interest.

Site and Surrounding area

10The Subject Property is currently zoned DD – Deferred Development (“DD Zone”) under Zoning By-law No. 464 (“ZBL-464”), being the comprehensive Zoning By-law for the former Township of Glanbrook.

11The Subject Property is located on the east side of Homestead Drive, and west of Upper James Street North. It is an irregularly shaped through-lot of approximately 0.71 hectares, located north of Airport Road West within an area known as Mount Hope, with frontage of 26.4 metres (“m”) on Homestead Drive and frontage of 81 m on Upper James Street North. The property is vacant with some mature trees and vegetation around the perimeter.

12Surrounding land uses include a greenhouse and residence to the south, residential uses to the west and north, a motel to the north and Upper James Street North, a major arterial road, to the east. The property is in proximity to the Hamilton International Airport and Mount Hope Park.

SUBMISSIONS

13Prior to the commencement of the Hearing, the Tribunal received the Affidavit of Mike Crough, Principal Planner with the firm Arcadis Professional Services (Canada) Inc., and marked it as Exhibit 1.

14On consent of the Parties, the Appellant presented Mr. Crough, who was affirmed and deemed qualified to give expert opinion evidence in land use planning.

15Mr. Cough provided the Tribunal with details regarding the Proposed ZBA and provided planning evidence in support of the approval of the Proposed ZBA.

PLANNING EVIDENCE

16Mr. Crough testified that the Parties had agreed to settle the appeal by implementing the Proposed ZBA for the Subject Property and that the Parties acknowledge that a corresponding amendment to the UHOP (“OPA Amendment”) is required to implement the Proposed ZBA.

17Mr. Crough advised that the Parties jointly agreed and acknowledged that the OPA Amendment would be approved as part of the next scheduled housekeeping update of the UHOP by the City (“Housekeeping OPA”), and not through the appeal process.

18Further, Mr. Crough advised that the Appellant wished to maintain its appeal against OPA 69 until the Housekeeping OPA is approved by the City, and in this respect, the OPA Amendment was submitted only to provide context and to inform the Tribunal. Mr. Crough advised that the OPA Amendment provides certainty regarding permitted uses and introduces a special policy area permitting uses that correspond with the Proposed ZBA to ensure that it conforms to, and implements, the UHOP.

19Mr. Crough testified that the purpose of the Proposed ZBA is to remove the Subject Property from ZBL-464 and bring the lands into ZBL 05-200, to rezone the lands from DD Zone to C6 – District Commercial Zone (“C6 Zone”), and to include the standard list of uses permitted under the C6 Zone, as well as the following:

• Contractor’s Establishment
• Commercial School
• Computer, Electronic and Data Processing Establishment
• Planned Business Centre
• Production Studio
• Research and Development Establishment
• Surveying, Engineering, Planning or Design Business
• Trade School
• Tradesperson’s Shop
• Warehouse

20Mr. Crough testified that the Proposed ZBA would include:

• A maximum setback of 8 m from the rear lot line (along Upper James Street North) and 6 m from the front lot line (along Homestead Drive), and that the maximum setback shall only apply to the nearest point of a building closest to the nearest adjacent street line, and in the case of a through-lot, shall not be required from any part of a building to the opposite street line;
• A minimum rear yard setback of 1.5 m, as measured from Upper James Street North;
• A minimum interior side yard setback of 2 m for a lot line abutting a residential or institutional zone, or a lot containing a residential use;
• The elimination of the requirement for internal parking landscape islands; and
• A standard parking ratio for a building containing multiple permitted uses at a rate of one space per 50 square metres (“m²”) gross floor area (“GFA”), excepting any Warehouse use which shall require parking at a rate of one space per 30 m² of GFA, which accommodates the Office portion of such use. For any building containing a single permitted use, the normal parking rates for individual uses in Section 5.6 c) of ZBL 05-200 shall apply.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

21It was the opinion of Mr. Crough that the Proposed ZBA has regard to the relevant matters of provincial interest as set in s. 2 of the Act and more specifically subsections:

(f) the adequate provision and efficient use of communications, transportation, sewage and water services and waste management systems;

(h) the orderly development of safe and healthy communities;

(k) the adequate provisions of employment opportunities;

(n) the resolution of planning conflicts involving public and private interests;

(o) the protection of public health and safety; and

(p) the appropriate location of growth and development.

22Mr. Crough opined that the Proposed ZBA has regard for provincial interest because the Subject Property is located within the established UHOP urban boundary, is identified as greenfield lands, and is serviced by municipal water, sewage and waste collection. Further, he opined that the Subject Property is a suitable size and location for development, with no significant hazards or features, that the proposed mixed uses will support commercial and employment activities, and that compatibility with sensitive uses can be achieved through setbacks, landscape buffers and fencing. Further, he agreed that the settlement of the appeal resolves the planning conflicts between the City and the Appellant for the development of the Subject Property.

Provincial Policy Statement, 2020

23It was Mr. Crough’s opinion that the Proposed ZBA is consistent with the PPS as the Subject Property is within the settlement boundary, is within a greenfield area and can be serviced by the City. Mr. Crough opined that the Proposed ZBA is further consistent with the PPS because it will slightly broaden the standard use permissions in the C6 Zone to allow for flexibility in uses suited to the location of the lands along a major arterial road, near the airport, thereby supporting economic development. He proffered that the use permissions and performance standards will permit appropriate and orderly development, will have consideration for adjacent lands and uses, and will allow for functional development of the Subject Property to proceed through other planning application stages (i.e. site plan approval).

A Place to Grow: Growth Plan for the Greater Golden Horseshoe

24It was Mr. Crough’s opinion that the Proposed ZBA conforms with the Growth Plan as it will support the achievement of complete communities and support economic development. Further, Mr. Crough opined that the Proposed ZBA conforms with the Growth Plan as it will not compromise the City’s ability to accommodate intensification and will allow for a mix of commercial uses on the Subject Property that are within a designated greenfield area.

Urban Hamilton Official Plan and Mount Hope Secondary Plan

25Mr. Crough testified that the Proposed ZBA is consistent with and conforms to the goals, objectives, and policies of the UHOP, including the policies for urban structure, urban corridors, neighbourhood structural elements, Commercial and Mixed Use designations, and the policies specific to the District Commercial Designation.

26It was Mr. Crough’s opinion that the Proposed ZBA will enhance the planned commercial functions of the Subject Property and allow for broader permissions, while maintaining the standard permitted uses, in combination with performance standards that restrict the size of any one use and control the height and location of the built form.

27The Mount Hope Secondary Plan (“MHSP”) applies to the Subject Property and designates the property District Commercial. The MHSP will be further amended through the Proposed OPA. Mr. Crough opined that the Proposed ZBA conforms to and implements the policies of the MHSP, as to be amended, ensuring compatibility with existing residential uses on adjacent lands, and supporting the planned commercial function of the area, while supporting the airport and the planned employment lands.

Zoning By-law No. 05-200

28Mr. Crough testified that, except for the proposed site-specific modifications, the Proposed ZBA for the Subject Property will implement a range of other provisions within ZBL 05-200, including the General Provisions and that the proposed modifications will work with the standard requirements to provide a predictable framework for future development.

29Mr. Crough opined that the Proposed ZBA will allow for broader use permissions while maintaining the standard permitted uses, in combination with performance standards that restrict the size of any one use and control the height and location of the built form.

30Mr. Crough opined that the zoning provisions, including the limitations in the C6 Zone regulating maximum size, will balance the size and scale of permitted uses, in consideration of the other objectives and policies to ensure development is compatible with existing residential uses while maintaining an appropriate level of non-residential GFA.

ANALYSIS AND FINDINGS

31Based on the uncontroverted expert evidence in support of the settlement provided by Mr. Crough, the Tribunal finds that the Proposed ZBA has regard to the relevant matters of provincial interest set out in s. 2 of the Act.

32The Tribunal finds that the evidence provided demonstrates that the Proposed ZBA is consistent with the PPS, and conforms with the Growth Plan, the UHOP and the MHSP.

33The settlement proposal represents an efficient use of the Subject Property, represents good land use planning and is in the public interest.

34The Parties jointly requested the Tribunal to withhold its Final Order on the Proposed ZBA until the Housekeeping OPA, which will implement the OPA Amendment, is approved by the City and is in full force and effect. In this regard, the Appellant agreed to withdraw its appeal against OPA 69 within 15 days of the coming into force and effect of the Housekeeping OPA, if it implements the OPA Amendment.

35In this respect, and at the request of the Parties, the Tribunal is not ruling on the OPA appeal at this time.

INTERIM ORDER

36THE TRIBUNAL ORDERS THAT the Zoning By-law Amendment appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of the pre-requisite matter identified in paragraph [37] below, and the Zoning By-law Amendment set out in Attachment 1 to this Interim Order, is hereby approved in principle.

37The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matter:

a) The Tribunal is advised that the Urban Hamilton Official Plan has been amended to bring the Zoning By-law Amendment into conformity therewith.

38The Panel Members will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-Law Amendment and the issuance of the Final Order.

39The Tribunal may be spoken to should a matter arise in connection with the implementation of this Interim Order.

40If the Parties do not submit the final draft of the Zoning By-law Amendment, and provide confirmation that the contingent pre-requisite to the issuance of the Final Order set out in paragraph [37] above has been satisfied, and do not request the issuance of the Final Order, by Wednesday, April 10, 2024, the Appellant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Zoning By-law Amendment and request for issuance of the Final Order by the Tribunal.

41The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine additional timelines and the deadline for the submission of the final form of the instrument, the satisfaction of the contingent pre-requisite and the issuance of the Final Order.

“J. Innis”

J. Innis

MEMBER

“C. I. Molinari”

C. I. MolinarI

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.

ATTACHMENT 1