Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 10, 2023
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: March 3, 2023 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
J. De Marinis (N. Smith in absentia)
Lakewood Beach Community Council
V. Saunders*
Charles Puma
Self-Represented*
Dawn Simpson
Self-Represented*
MEMORANDUM OF ORAL DECISION DELIVERED BY N. EISAZADEH AND S. BRAUN ON MARCH 3, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the second 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.
2At a CMC held on October 28, 2022, before a panel differently constituted, the Tribunal was advised that despite having received a sworn Affidavit of Service dated September 23, 2022, confirming that proper notice had been given, there were some concerns with respect to the sufficiency of the Notice raised by Ms. Simpson, who indicated she was aware of individuals residing within 120 metres (“m”) of the subject lands who did not receive Notice.
3Despite being satisfied that proper notice had been given, out of an abundance of caution, the Tribunal directed Ms. Simpson to work with counsel for the Appellant to ensure that any individuals who may not have received Notice of the first CMC were properly served with Notice for this CMC. The Tribunal further directed that, if any of those affected individuals wished to seek Party or Participant Status, a written request was to be filed no later than ten (10) days in advance of this hearing event.
4At the request of the Parties, the Tribunal scheduled a ten (10)-day hearing. The Parties were directed to collaborate on a draft Procedural Order (“PO”) and detailed Issues List (“IL”) and, to the extent possible, to avoid repetition on the IL. The Tribunal scheduled this second CMC for the purpose of considering any additional status requests as outlined above and to review the draft PO and IL.
ADDITIONAL REQUESTS FOR STATUS
5Counsel for the Appellant advised, and Ms. Simpson confirmed, that he had not been contacted with respect to the need to serve any additional Notice. As such, the Tribunal is now satisfied that there were, in fact, no defects with service of the Notice for the first CMC and no further Notice is required.
6Notwithstanding the foregoing, the Tribunal received one additional written request seeking Participant Status from Mike Milko, dated November 22, 2022. Mr. Milko resides directly across from the proposed development and received Notice of the first CMC but did not seek status at that time. Despite the failure to request status at that time, in light of Mr. Milko’s direct interest in the matter, all Parties consented to the Tribunal now granting his request to be added as a Participant.
7The Tribunal granted Mr. Miko’s request and advised that the appeal would now proceed with the involvement and participation of only Mr. Milko and those granted Party/ Participant Status at the previous CMC.
MEDIATION AND SETTLEMENT
8The Parties indicated they are open to engaging in discussions aimed at settlement or, at the very least, narrowing the issues in dispute. The Parties further indicated that they are aware of the availability of Tribunal-assisted mediation and that they may contact the case coordinator should they wish to avail themselves of this resource.
NEXT STEPS AND FUTURE HEARING EVENTS
9Although the Parties collaborated on a draft PO and IL and submitted same in advance of this CMC, the Tribunal identified a number of overlapping issues. In accordance with the Tribunal’s direction to avoid repetition of issues for an efficient hearing, counsel for the Appellant undertook to resubmit a further revised draft PO and IL for the Tribunal’s review and approval no later than Friday, March 17, 2023.
10The Parties revisited the required length of the hearing as currently scheduled and indicated that, at this time, they anticipate requiring the full ten (10)-days which have been set aside. For the convenience of the Parties and Participants, the Tribunal notes that a ten (10)-day video hearing is scheduled to commence at 10 a.m. on Monday, September 18, 2023:
GoTo Meeting: https://global.gotomeeting.com/join/692665589
Access code: 692-665-589
11Parties 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.
12Parties 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
13Persons 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 692-665-589.
14Individuals 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.
OTHER MATTERS
15The 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
16The Tribunal orders that Mike Milko is a Participant in this proceeding.
17The Tribunal directs that a revised draft Procedural Order and Issues List be filed no later than Friday, March 17, 2023.
18A ten (10)-day hearing remains scheduled to proceed by video hearing commencing at 10 a.m. on Monday, September 18, 2023.
19No further notice will be provided.
20The Panel Members are not seized but may be available for case management should scheduling permit.
“N. Eisazadeh”
NAZANIN EISAZADEH
MEMBER
“S. Braun”
S. BRAUN
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.