CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-004768

DECISION ISSUE DATE(S):

April 14, 2023

CORRECTION NOTICE ISSUE DATE:

June 30, 2023

Correction to: In paragraph 19, the telephone numbers to call into the hearing are 1-888- 299-1889 and 1-647-497-9373. The telephone numbers should be: 1-888-455-1389 and 1-647-497-9391.

ORIGINALLY:

19Persons 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 as indicated above.

CORRECTED TO:

19Persons 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 1-888-455-1389 or +1 (647) 497-9391. The

Access Code is as indicated above.

“Euken Lui”

EUKEN LUI REGISTRAR

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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

April 14, 2023

CASE NO(S).:

OLT-22-004768

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

Applicant and Appellant:

LIV Developments Ltd.

Subject:

Request to amend the Official Plan – Failure

to adopt the requested amendment

Description:

To permit the development of 84 stacked

townhouses and 150 apartment units

Reference Number:

UHOPA-20-018

Property Address:

909 North Waterdown Drive

Municipality/UT:

City of Hamilton

OLT Case No.:

OLT-22-004768

OLT Lead Case No.:

OLT-22-004768

OLT Case Name:

LIV Developments Ltd. 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

LIV Developments Ltd.

Subject:

Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description:

To permit the development of 84 stacked townhouses and 150 apartment units

Reference Number:

ZAC-22-032

Property Address:

909 North Waterdown Drive

Municipality/UT:

City of Hamilton

OLT Case No.:

OLT-22-004769

OLT Lead Case No.:

OLT-22-004768

OLT Case Name:

LIV Developments Ltd. v. Hamilton (City)

Heard:

March 20, 2023 - by Video Hearing

APPEARANCES:

Parties

Counsel

LIV Developments Ltd.

R. Cheeseman

S. Fleming

City of Hamilton

P. MacDonald

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS AND ERIC S. CROWE ON MARCH 20, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) with respect to appeals brought pursuant to sections 22(7) and 34(11) of the Planning Act (“Act”) for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (ZBA”) for the property municipally addressed as 909 North Waterdown Drive located in the City of Hamilton, for the failure of council to adopt or to make a decision within the legislated timeframe.

2The purpose of the Official Plan Amendment and Zoning By-law Amendment is to permit the development of 84 stacked townhouses and 150 apartment units. A total of 234 residential units are proposed.

3The subject property has frontage of approximately 218 metres on North Waterdown Drive and a depth of 840 metres. The parcel has an area of approximately

16.1 hectares within the City of Hamilton.

4The property was the subject of prior appeals to the Tribunal. The leading case number was PL200274. The Site Plan appeal case number was PL210079. The Decision and Order issued by the Tribunal on November 8, 2021 adjourned consideration of the Site Plan appeal on consent, while refusing the Official Plan Amendment and Zoning By-law Amendment. The primary issue of this hearing was related to the minimum density target established by the planning framework.

5LIV Developments Ltd. then filed new Official Plan Amendment and Zoning By- law Amendment applications with the City of Hamilton which they subsequently appealed.

6The sworn Affidavit of Service related to Notice and dated February 2, 2023 was marked as Exhibit 1.

PARTY/PARTICIPANT STATUS

7In response to the Notice, the Tribunal received no written requests for Party or Participant status at that time.

CONSOLIDATION REQUEST

8Counsel for the Appellant requested a consolidation of the Site Plan appeal PL210079 with the current matters being adjudicated by the Tribunal related to the same property.

9Counsel for the City made submissions that if the matters are consolidated as requested, the City would not collect the Site Plan application fees for a new Site Plan application. Counsel confirmed that the City had not requested that the Site Plan appeal be dismissed within 60 days of the November 8, 2021 decision being issued, nor did the City request that the Tribunal dismiss the PL210079 appeal upon being advised of the request by LIV Development Ltd. to consolidate this appeal with the current OPA and ZBA appeals.

10Counsel for the City did advise the Panel that in accordance with s. 19.1 of the Ontario Land Tribunal Act, that the Tribunal could, on its own initiative, dismiss the Site Plan appeal:

Dismissal

19 (1) Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing,

(a) if the party who brought the proceeding has not paid any fee required to be paid under this Act;

(b) if the party who brought the proceeding has not responded to a request by the Tribunal for further information within the time specified by the Tribunal;

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success;

(d) in any circumstance listed in subsection 4.6 (1) of the Statutory Powers Procedure Act; or

(e) in any circumstance provided for under any other Act.

11The Tribunal was not persuaded that any of the criteria within s. 19.1 of the Ontario Land Tribunal Act, have been met in order to initiate the dismissal of the Site Plan appeal without holding a hearing.

12Counsel for the Appellant advised that if the matters were not consolidated, his client would be required to submit a new Site Plan application paying again for fees that had already been paid to the City when the original Site Plan application was submitted. The owner would then have to wait for the new Site Plan application timeline to expire to be able to appeal to the Tribunal. Only then could a request be made to consolidate the new Site Plan appeal with these matters. Counsel suggested that this could result in a delay hearing these matters. Counsel argued that the Tribunal has a Site Plan appeal before it for the same property which should be consolidated with the current OPA and ZBA appeals.

13The Tribunal is satisfied that the consolidation of the Site Plan appeal (PL210079) with the current matters which includes the same property, parties, issues, and witnesses would reduce a multiplicity of hearings. The Tribunal, therefore, directs

that the Site Plan appeal (PL210079) be consolidated with the current OPA and ZBA in accordance with Rule 16 of the Ontario Land Tribunal Rules of Practice and Procedure.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

14The Tribunal canvassed the Parties regarding the time needed to prepare a Draft Procedural Order and issues List (“DPO”). Counsel for the City advised that instructions from council would be obtained at one of the April 2023 meetings. On consent, the Tribunal directed that the complete DPO be provided to the case coordinator no later than Wednesday May 31, 2023. Counsel for the Appellant will co-ordinate and provide the DPO to the Tribunal by the appointed date. If this date cannot be achieved, Counsel for the Appellant is requested to advise the Case Coordinator as soon as this is reasonably known.

MEDIATION

15The Parties advised that they are open to settlement discussions. The Parties indicated that they are aware of the availability of Tribunal-led mediation. Parties also advised that they are aware that they may request this mediation at their convenience.

HEARING

16The number of witnesses, the expected length of the hearing and the availability of Counsel was canvassed by the Panel. The Tribunal scheduled an eight (8) day merit hearing by Video commencing at 10:00 am on Wednesday November 29, 2023 to Friday December 8, 2023. It is important that the Parties advise the Case Coordinator if a proposed settlement is reached to allow all or some of the merit hearing dates to be released. The Tribunal hearing dates are an important resource that must be respected and effectively allocated.

17Parties 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.

18The CMC is scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/996288525

Access Code: 996-288-525

19Persons 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 as indicated above.

20Parties 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

21Individuals 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

22THE TRIBUNAL ORDERS that,

a. The Parties are directed to submit a Draft Procedural Order and Issues List to the Case Coordinator for the Tribunal’s review no later than Wednesday May 31, 2023.

b. A merit hearing will be held by Video Hearing for eight (8) days

commencing at 10:00 a.m. on Wednesday November 29, 2023.

23The Panel is not seized of the matter, but subject to scheduling availability, may be spoken to related to case management.

24No further notice will be provided.

25The Tribunal so orders.

“Astrid J. Clos”

ASTRID J. CLOS

MEMBER

“Eric S. Crowe” ERIC S. CROWE

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.