Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 11, 2023

CASE NO(S).: OLT-23-000115

EFFECTIVE DATE: June 21, 2023

PROCEEDING COMMENCED UNDER subsection 40.1(4) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Appellants: Doug Chapple & Jenny Fellman

Subject: Objection to by-law designating a Heritage Conservation District Study Area

Municipal Reference Number: By-law No. 22-258

Location: Melville Street from Sydenham Street to Wellington Street North

Municipality: City of Hamilton

OLT Lead Case No.: OLT-23-000115

OLT Case No.: OLT-23-000115

OLT Case Name: Chapple v. Hamilton (City)

Heard: June 21, 2023 by Video Hearing

APPEARANCES:

Parties D. Chapple J. Fellman

Counsel/Representative* Self-represented

City of Hamilton P. MacDonald*

MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON JUNE 21, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

1The Tribunal convened a settlement hearing with respect to a proposed settlement for the above noted matter. Douglas Chapple and Jenny Fellman (“Appellants”) have filed an appeal against the City of Hamilton (“City”) in respect of the passing of By-law No. 22-258 (“By-law”) designating a heritage conservation study area pursuant to s. 40.1(4) of the Ontario Heritage Act (“Act”). The property is known municipally as 208 Melville St. in the City (“subject property”). The subject property is in the former municipality of Dundas.

2The effect of the appeal is to allow the demolition of the existing structures (detached dwelling and garage) on the subject property and replacing these structures with a new detached dwelling.

3The Affidavit of Service, sworn on May 9, 2023, is found to be appropriate and is marked as Exhibit 1 to these proceedings.

4There are no additional Party requests to these proceedings. There is one request for Participant Status from Margret Stowe. Ms. Stowe is not a resident of the Melville Street Heritage Conservation District Study Area (“study area”) but is a local historian who has a significant interest in the former municipality of Dundas. The Parties did have some reservation as to the granting of Participant Status (as did the Tribunal) but her knowledge of the history of the area and the subject property could have some significance in the matter. Therefore, the Tribunal granted participant status to Ms. Stowe. She is also called as a witness for the Tribunal to read her participant statement that provided a brief non-expert testimony in respect of the history of the subject lands. Her testimony is described later in this decision.

MINUTES OF SETTLEMENT

5The Tribunal is presented with Minutes of Settlement (“MOS”) between the Appellants and the City and they are marked as Exhibit 2 to these proceedings. The MOS outline the agreed upon changes to both the By-law and the Appellants building permit application which has the effect of implementing the proposed settlement. The MOS includes design renderings for the proposed new detached dwelling.

CITY COUNSEL SUBMISSIONS

6Mr. MacDonald, Counsel for the City, at the outset (and during the course) of the settlement hearing requested that the Tribunal make an oral decision on this matter. The reason for this request relates to when the proposed By-law would come into force. The Appellant’s have been caught in a challenging series of circumstances that are not of their making. In Mr. MacDonald’s justification of this request, he first noted s. 40.1(5) of the Act which reads:

(5) Subsections 41(6) to (9) apply with the necessary modifications to an appeal under subsection (4)…

7Secondly Mr. MacDonald made reference to the nature of the request being made of the Tribunal at these proceedings as found in s. 41(7)(ii) of the Act ‘Powers of Tribunal’ that reads:

(7) After holding a hearing, the Tribunal shall,

(b) allow the appeal in whole or in part and,

(ii) amend the by-law in such a way as the Tribunal may determine,

8Lastly Mr. MacDonald makes specific reference to s. 41(10)(b) ‘Coming into force’ of the Act which reads:

(10) If one or more notices of appeal are given to the clerk with the time period specified in subsection (4).

(b) if the by-law is amended by the Tribunal under subclause (7) (b) (ii), the by-law, as amended by the tribunal, comes into force on the day it is so amended;

9It is Mr. MacDonald’s submission that the best way to remedy this appeal is to have the Tribunal give an oral Order with the date the By-law comes into force being June 21, 2023, when a Tribunal oral Order is made.

WITNESS OF THE TRIBUNAL

10Ms. Stowe is not a resident of the study area nor qualified to give opinion evidence related to matters related to heritage matters. She is an interested community resident who studies the history of the former municipality of Dundas. Ms. Slowe is given the opportunity to read her participant statement to the Tribunal since it is not yet on the record.

11From assessment records (that were not presented to the Tribunal) Ms. Stowe provided interesting background to what appears to be the history of the existing structures on the subject property. She became aware at the hearing that the subject property is not designated under the Act and therefore the City has limited ability to prevent demolition or alteration of existing structures.

12Albeit Ms. Stowe’s historical review is interesting, it has little if any relevance to the matter before the Tribunal in this proceeding. The Tribunal does thank Ms. Stowe for her interest and attendance at this settlement hearing.

THE WITNESS

13Opinion evidence is heard from one witness. Alissa Golden is qualified to give expert opinion evidence in the disciplines of land use and heritage planning. She has significant background in and tenure with the City in matters related to cultural heritage.

BACKGROUND

14In September 2022, the City passed a By-law to designate a portion of Melville Street In the City as a study area. The By-law establishes limitations on the types of alterations, demolitions and new construction that are permitted in the study area for one year from the passing of the By-law. The By-law does provide exemptions for certain permitted actions and for specified building permits issued before the date of its passage.

15In November 2022, the Appellants appealed the By-law to the Tribunal. The Tribunal is advised that the subject property is not designated under Part IV or Part V of the Act, nor is it listed as a non-designated property of heritage value or interest in the City’s municipal heritage register. Ms. Golden noted that the subject property is

not included in the City’s Inventory of Heritage Properties, which includes properties that have being previously surveyed or flagged as having potential cultural heritage value or interest but may not yet have been evaluated to determine if they warrant listing on the register or potential designation

under the Act.

16The Appellants submitted a building permit application for new construction on the subject property in April 2022 and a building permit application to demolish the existing detached dwelling in July 2022. Both applications were deemed complete as of September 28, 2022. A building permit was also issued in June 2022 for the demolition of the detached accessory structure (garage).

17City Council adopted the By-law on September 28, 2022.

THE PROPOSED SETTLEMENT

18Ms. Golden advised the Tribunal that the fundamental elements of the proposed settlement are:

a. Amending the By-law to include an additional exemption for any property which a complete building permit application which had been made prior to the date of the By-law passing. Ms. Golden noted that to her knowledge the subject property is the only application that meets the conditions of this exception.

b. The Appellants will make changes to their building permit application for the new detached dwelling. Changes include the design of the front facade of the home, agreed upon materials for use on this facade, modified landscaping and the maintenance of the City tree located on the west side frontage of the subject lands. A revised building permit in keeping with these changes has been submitted to the City by the Appellants.

19Ms. Golden stated that the subject property has no status under the Act at the time when the building permit application for demolition and new construction were submitted to the City. Therefore, in her opinion, no approvals are required under sections 33 or 34 of the Act.

20Ms. Golden advised the Tribunal that, if it was not for the passing of the bylaw, the Appellants would have received the necessary building permits for demolition and new construction with no applicable law impediments related to provisions of the Act.

21The study area is currently under review as a potential heritage conservation district. Ms. Golden in her oral evidence, advised the Tribunal that the City has received a draft report from the consultant in respect of their observations and conclusions in respect of the study area. Although this study is not before the Tribunal, the member is advised that the subject property is considered a non-contributing property in the study area draft conclusions. Ms. Golden opined that nothing in this draft study area report has changed her opinion in respect of the matter before the Tribunal. Council could at some future date choose to designate a new district in accordance with Part V of the Act.

22Ms. Golden is of the opinion that the modified design of the new detached dwelling on the subject property is consistent with what City heritage staff would typically recommend when commenting on new construction subject to Planning Act applications within an historic neighborhood. That being said, the Appellants proposed construction requires no Planning Act approvals.

23Ms. Golden opined that the proposed changes ensure that the design of the new structure is sympathetic and complementary to the existing character of the neighborhood, including building setbacks, massing, height, roof lines and cladding materials. Changes secured through the MOS ensure the new detached dwelling is more sympathetic to the existing character of the neighborhood than what was originally proposed by the Appellants in their initial building permit application.

24The only change to the By-law is to include an additional exemption for properties for which a complete building permit application was with the City prior to the passage of the By-law by City Council on September 28, 2022. In Ms. Golden’s opinion, the proposed change to the By-law is similar to the existing exemption provided for by Council for properties that had active and issued building permits within the study area.

TRIBUNAL FINDINGS

25The Tribunal accepts the uncontested evidence of Ms. Golden in its entirety, that the proposed changes to the By-law are appropriate and in keeping with the Act. The changes, as defined and implemented in the MOS, ensure that the design of the new detached dwelling is sympathetic and complementary to the existing character of the neighborhood.

26The Tribunal finds that the City has an extremely well established planning and cultural policy as it relates to the subject property and surrounding area and has followed a careful, complete, and comprehensive review of the proposed settlement and the terms of the MOS.

27The Tribunal notes that, although not before it, nothing in the draft study area consultant’s report provides any reason or rationalization to change the context on which the existing structures on the subject property are evaluated nor in the witness’s opinion their heritage value.

28The Tribunal finds, through the submissions and evidence of City staff at the hearing, that the original building permit met a number of regulations that must be satisfied and met relevant applicable law. The building permit was deemed complete prior to the By-law being enacted which is the only reason this permit was not granted. The relatively minor change to the By-law serves to rectify the impediments to the building permit being issued.

29The Tribunal finds, in keeping with s. 41(10), the amended By-law No 22-258 of the City of Hamilton comes into full force and effect on the date of this oral decision of the Tribunal, being June 21, 2023.

ORDER

30Accordingly, the Tribunal Orders THAT the appeals filed on behalf of Douglas Chapple and Jenny Feldman for the lands known municipally as 208 Melville St. in the City of Hamilton in Ontario Land Tribunal File No. OLT-23-000115 are allowed, in part, in accordance with subsections 40.1(5) and 41(7)(b)(ii) of the Ontario Heritage Act. The Tribunal Orders that City of Hamilton By-law No. 22-258 is amended as set out in Schedule 1 to this Order.

“Bryan W. Tuckey”

BRYAN W. TUCKEY 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.

Schedule 1