Losani Homes (1998) Ltd. v. Hamilton (City), 2023 CanLII 21669

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 13, 2023

CASE NO(S).:

OLT-22-003075

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant:

Losani Homes (1998) Ltd.

Subject:

Application to amend Zoning By-law No 3692-92 – Neglect or Refusal of application by City of Hamilton

Existing Zoning:

Agricultural Specialty AS

Proposed Zoning:

Multiple Residential RMS

Purpose:

To permit a range of residential units (townhouses, maisonette townhouses, and stacked townhouse)

Property Address/Description:

860 & 884 Barton Street

Municipality:

City of Hamilton

Municipal File No.:

ZAC-18-049

OLT Lead Case No.:

OLT-22-003075

OLT Case File No.:

OLT Case Name:

OLT-22-003075

Losani Homes (1998) Ltd. v. Hamilton (City)

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

Applicant and Appellant:

Losani Homes (1998) Ltd.

Subject:

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

Purpose:

To permit a range of residential units (townhouses, maisonette townhouses, and stacked townhouse)

Property Address/Description:

860 & 884 Barton Street

Municipality:

City of Hamilton

Municipal File No.:

25T-202109

OLT Lead Case No.:

OLT-22-003075

OLT Case No.:

OLT-22-003076

Heard:

January 25, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Losani Homes (1998) Ltd.

Nancy Smith

Jennifer Meader (in absentia)

City of Hamilton

Patrick MacDonald

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order results from the second Case Management Conference (“CMC”) conducted in respect to the Appeal from Losani Homes (1998) Limited (the “Appellant”) pursuant to s. 34(11) and s. 51(34) of the Planning Act against the City of Hamilton’s (the “City”) failure to make a decision in the statutory time frames regarding the Appellant’s proposed Zoning By-law Amendment (the “ZBA”) application and draft Plan of Subdivision.

BACKGROUND

2The address of the Subject Properties is municipally known as 860 and 884 Barton Street East, Stoney Creek.

3The Applications under Appeal propose to amend the City’s Zoning By-law No. 3692-92 to permit a Plan of Subdivision with 251 townhouse residential units. The Subject Properties’ proposal is for a variety of townhouse unit types and styles.

4The Tribunal had previously marked the Affidavit of Service of the Notice of the CMC sworn by Victoria Peacock on September 14, 2022, as Exhibit 1 at the first CMC.

REQUESTS FOR STATUS

5Similar to the previous CMC, there were the appearances of Quinto Simone and Giovanna Simone. The Simones had questions to the City, pertaining to their property, since it is adjacent to the Subject Properties. The Tribunal reiterated in great detail the differences and responsibilities between Party and Participant Status. The Tribunal had directed, with the approval of the Appellant and the City, that the Simones have Participant Status, so their participant statement could be submitted and taken into account when the Tribunal made a decision on this matter. The Simones declared to remain as observers only. As such, the Tribunal made the Simones aware that by not having either Party or Participant Status, they are giving up their right to submit any information on their behalf to address their concerns about the Applications at the Merits Hearing.

OPPORTUNITIES FOR RESOLUTION

6The Tribunal was made aware that there has not been any progress with regards to a settlement, however, the Parties agreed that Tribunal-led Mediation is not required or warranted at this time.

FINALIZATION OF AN ISSUES LIST AND PROCEDURAL ORDER

7A draft Issues List and Procedural Order were received by the Tribunal. However, the timing of the submittal by the City to the Tribunal did not leave enough time for the Applicant to agree to the proposed Issues List and Procedural Order.

8Since the time of this CMC, the Tribunal has received confirmation of an agreed upon Issues List and Draft Procedural Order. The Tribunal has analyzed the Draft Procedural Order and Issues List and approves of their contents. This Procedural Order will now govern the process for the hearing which is to commence on July 17, 2023 at 10 a.m. for a duration of seven (7) days. The Procedural Order and Issues List can be found in Schedule 1 of this Decision.

9Should the Parties require less time than what is scheduled, they are to notify the Tribunal Registrar as to the required time change so the Tribunal can release these dates in the Tribunal calendar.

10The hearing is scheduled to proceed by video at 10 a.m. on Monday, July 17, 2023 to Tuesday, July 25, 2023.

11Parties 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/719383509 Access code: 719-383-509

12Parties and participants are asked to log into the video hearing at least 15 minutes prior to the commencement of the hearing to test their video and audio connections.

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 (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is: 719-383-509.

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 hearing 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 hearing will commence on Monday, July 17, 2023, for a duration of seven (7) days and shall be governed by the Procedural Order and Issues List, which is attached as Schedule 1 of this Decision. As such, it is in full force and effect.

17The Member is not seized, however, may assist with case management, schedule permitting.

18No further notice will be given.

“S. deBoer”

S. deBOER

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.

Schedule 1

CASE NO(S).: OLT-22-003075

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Losani Homes (1998) Ltd.

Subject:

Application to amend Zoning By-law No. 3692-92 – Neglect or Refusal of application by City of Hamilton

Existing Zoning

Agricultural Specialty AS

Proposed Zoning

Multiple Residential RMS

Purpose:

To permit a range of residential units (townhouses, maisonette townhouses, and stacked townhouse)

Property Address/Description

860 & 884 Barton Street

Municipality:

City of Hamilton

Municipal File No.:

ZAC-18-049

OLT Lead Case No.:

OLT-22-003075

OLT Case File No.:

OLT-22-003075

OLT Case Name:

Losani Homes (1998) Ltd. v. Hamilton (City)

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

Applicant and Appellant:

Losani Homes (1998) Ltd.

Subject:

Proposed Plan of Subdivision – Failure of City of Hamilton to make a decision

Purpose:

To permit a range of residential units (townhouses, maisonette townhouses, and stacked townhouse)

Property Address/Description

860 & 884 Barton Street

Municipality:

City of Hamilton

Municipal File No.:

25T-202109

OLT Case No.:

OLT-22-003076

OLT Lead Case No.:

OLT-22-003075

1. 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

2. The video hearing will begin on Monday, July 17, 2023 at 10 a.m.

Monday, July 17, 2023 (seven-day hearing)

GoTo Meeting: https://global.gotomeeting.com/join/719383509

Access code: 719-383-509

Audio-only line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373

Audio-only access code: as indicated above

3. The parties’ initial estimation for the length of the hearing is seven 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.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. 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.

6. 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.

7. 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.

8. 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

9. 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 April 24, 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.

10. Expert witnesses in the same field shall have a meeting on or before May 12, 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 June 30, 2023.

11. 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.

12. 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.

13. On or before May 26, 2023, 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.

14. On or before June 12, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

15. On or before July 7, 2023, 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.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 21 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before July 7, 2023.

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before July 10, 2023, 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.

21. 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.

22. A summary of the filing dates is attached as Attachment 4.

23. 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

Parties:

1. Losani Homes (1998) Ltd.

Turkstra Mazza Associates

15 Bold Street

Hamilton, ON L8P 1T3

Jennifer Meader

Tel: (905) 529-3476

Email: jmeader@tmalaw.ca

Jessica De Marinis

Tel: (905) 529-3476

Email: jdemarinis@tmalaw.ca

2. City of Hamilton

50 Main Street East

Hamilton, ON L8N 1E9

Rachel McVean

Tel: (905) 546-2424

Email: Rachel.McVean@hamilton.ca

Patrick MacDonald

Tel: (905) 546-2489

Email: Patrick.Macdonald@hamilton.ca

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any party that the issue is relevant, appropriate or is within the Tribunal’s jurisdiction. The identification of an issue on this list by a party indicates that party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other parties the case they need to meet.

Planning

1. Is the development proposal consistent with the Provincial Policy Statement (2020) (“PPS”), including but not limited to policies 1.1.1, 1.1.3.2 c), and 1.5.1, and 1.6.1?

2. Does the development proposal conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended), including but not limited to policies 2.2.1.4, 3.2.1.1, and 3.2.7.2?

3. Does the development proposal conform with the Urban Hamilton Official Plan (“UHOP”), including but not limited to Volume 1 policies B.3.6.3.1, E.3.4.5, E.3.7.1, E.3.7.2, E.3.7.3, E.3.7.5 and F.1.14.1.2?

4. Does the development proposal conform with the Fruitland-Winona Secondary Plan and the Area Specific policies within the Fruitland-Winona Secondary Plan including maintaining the intent of the Block 2 Servicing Strategy as a basis for reviewing and approving all development applications within the Block 2 Servicing Strategy area, including but not limited to UHOP Volume 2 policies B.7.4.4.6, B.7.4.7.2, B.7.4.10.6, B.7.4.14.1, B.7.4.17.2, B.7.4.17.3, B.7.4.17.9, and B.7.4.18.11?

5. Does the development proposal provide for compatible coordination and orderly development with the surrounding area in terms of land use and street networks, as required by PPS Policy 1.2.6.1 and UHOP Volume 1 policies E.3.7.1 and E.3.7.5? Specifically, does the proposal address matters such as:

a. compatibility and coordination with adjacent land uses;

b. proper and orderly development of lands;

c. local road network and land use configuration;

d. air drainage and microclimate impacts;

e. topography and grading; and,

f. environmental noise guidelines and standards?

6. Does the proposal have any undue adverse impacts on air drainage patterns for the tender fruit areas to the south, including the cumulative impact of proposed changes in topography, increased building height, and realignment of the road network?

7. Does the proposed realignment of the Neighbourhood Park in the Fruitland-Winona Secondary Plan and Block 2 Servicing Strategy conform with the intended function and overall intent of the Fruitland-Winona Secondary Plan and maintain the intended function and overall intent of the Block 2 Servicing Strategy, including but not limited to location, size, shape, orientation, and frontage along public roads, in accordance with UHOP Volume 2 policy B.7.4.7.2 b)?

8. Do the proposed revisions to the public local road network in the Block 2 Servicing Strategy maintain the intended function and overall intent of the Block 2 Servicing Strategy and conform with the Fruitland-Winona Secondary Plan and provide for the proper and orderly development of adjacent lands?

9. Are the proposed site specific performance standards compatible and in keeping with the intent of Hamilton Zoning By-law No. 05-200 and Stoney Creek Zoning By-law No. 3692-92?

10. Is 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?

11. Are the proposed revisions to the Block 2 Servicing Strategy minor?

12. If the proposed revisions to the Block 2 Servicing Strategy are not considered minor modifications per Issue 11, is draft plan of subdivision approval premature until such time as the necessary amendments to the block servicing strategy are approved?

13. Does the application have sufficient regard for the matters in s. 51(24) of the Planning Act?

14. What is the appropriate form and content of the proposed zoning by-law amendment(s)?

15. Does the proposed development represent good land use planning and is it in the public interest?

Natural Heritage

16. Have the Environmental Impact Statements provided as part of this application demonstrated that Core Areas may exist within the subject lands, and if so, is further investigation required?

17. If Core Areas are present within the subject lands, have the applicant’s Environmental Impact Statements demonstrated that the features and functions of such Core Areas will not be negatively impacted as required under UHOP policy C.2.3?

18. Does the development proposal comply with UHOP policy C.2.11.1?

19. Does the development proposal comply with the Fruitland Winona Secondary Plan policies B.7.4.11.1, B.7.4.11.2 and B.7.4.11.3?

Engineering

20. Is the development proposal consistent with PPS policies 1.6.6.7, 3.1.2 and 3.1.3 with respect to the existing natural hazards on site? Does the proposed stormwater management pond design meets the City standards including freeboard requirements, emergency spillway and access road from an internal public road. Does the development obstruct any drainage regime and/or encroach on to the existing floodplain? Is there any impact to the neighbouring properties, existing City roads, stormwater management pond access due to subject Draft Plan?

21. Does the proposed development create any drainage impacts to the City’s ROW and create hazards, and comply with PPS policy 1.6.6.7?

22. Does the proposal satisfy all requirements and comments identified by Development Engineering including but not limited to grading, stormwater management, servicing and compliance with UHOP policies C.4.0 and C.5.0, including C.5.3.11, C.5.4.1, and C.5.4.2?

23. Is there sufficient sanitary sewer capacity for the proposed draft plan of subdivision?

24. Is there sufficient watermain looping and service capacity for the proposed draft plan of subdivision?

25. Can storm water quality and quantity be managed appropriately in accordance with the Block 2 Servicing Strategy by the design of the proposed centralized stormwater management facility within the development, including but not limited to:

a. conveyance of stormwater, including minor and major systems of conveyances for external drainage;

b. design, location and footprint of the proposed stormwater management facility;

c. site grading, and drainage;

d. a comprehensive grading plan to show how the external drainage area can be accommodated in the SWM facility for the existing and ultimate conditions of these lands;

e. complying with UHOP Volume 2 policy B.7.4.16 and B.7.4.16.1.

26. Has the applicant submitted a revised Functional Servicing report and Stormwater management report with detailed drawings to demonstrate how the Development Engineering comments has been addressed to the satisfaction of the City?

27. Does the proposed lot configuration including road network, both private and public, support the City’s grading, drainage, servicing and road network requirements in accordance with the Block 2 Servicing Strategy to support the subject site and future developments within this area?

28. Does the proposal contemplate providing all private accesses, either temporary or permanent, with direct access to a public right-of-way? Are they contained entirely within the frontage of the applicable block?

Transportation

29. Does the proposed development conform with the UHOP Volume 1 policies and Schedule C-2 relating to dedication of right-of-way and daylight triangles?

30. 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 access, road infrastructure improvements, traffic calming, signalization, site layout, pedestrian facilities, and transit amenities?

31. Does the proposed development conform to Secondary Plan policies contained in the UHOP and consider the Block 2 Servicing Plan road network for the Fruitland-Winona area, including policies 7.4.2.2 and 7.4.13.9?

Miscellaneous

32. Should the appeal be granted, what are the appropriate conditions of draft plan approval?

33. What dedications of lands or easements to the City are necessary to implement the proposal?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Losani Homes (1998) Ltd.

2. City of Hamilton

ATTACHMENT 4