Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 17, 2023

CASE NO(S).: OLT-22-001995

PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: NHDG (Waterfront) Inc.

Subject: Minor Variance

Description: To permit the construction of a new mixed-use development consisting of three (3) residential towers above ground floor commercial uses

Reference Number: SC/A-21:346

Property Address: 310 Frances Avenue (310 Frances Avenue)

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-22-001995

OLT Lead Case No: OLT-22-001995

OLT Case Name: NHDG (Waterfront) Inc. V. Hamilton (City)

PROCEEDING COMMENCED UNDER section 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Site Plan

Reference Number: DA-19-020

Property Address: 310 Frances Avenue

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-22-003190

OLT Lead Case No: OLT-22-001995

OLT Case Name: NHDG (Waterfront) Inc. V. Hamilton (City)

Heard: May 25, 2023 by video hearing

APPEARANCES:

Parties

Counsel

NHDG (Waterfront) Inc.

D. Bronskill

City of Hamilton

P. MacDonald

DECISION DELIVERED BY KURTIS SMITH AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This is a Settlement Hearing with respect to minor variance and site plan appeals by New Horizons Development Group (Waterfront) Inc. (“NHDG”) pursuant to s. 45(12) and s. 41(12) of the Planning Act (“Act”), for the property municipally known as 310 Frances Avenue (“Subject Property”) in the City of Hamilton (“City”).

2The Subject Property is approximately 2.061 hectares, with 58 metres (“m”) of frontage along North Service Road, a frontage of 139 m along Green Road, and a curved frontage of 180 m along Frances Avenue. The site is vacant except for a sales trailer located in the southwest quadrant.

3Prior to the commencement of the hearing, Lakewood Beach Community Council informed the Tribunal that they have withdrawn their Party status.

4The Settlement Proposal, which was presented at the February 3, 2023 Case Management Conference, was agreed to in principle by the parties to permit the construction of a mixed-used development.

5The proposal before the Tribunal amends the variances originally sought and are provided in Attachment 1.

6Pursuant to s. 45 (18.1) and (18.1.1) of the Act, the Tribunal has the discretion to allow amendments to a minor variance application without the requirement for further public notice if it is of the opinion that such amendments are minor by virtue of s. 45(18.1) and (18.1.1) of the Act. In this case, the Tribunal finds the amended application to be minor and no further notice is required.

7The proposal will develop the Subject Property with three residential towers: standalone Tower A, 34 storeys atop a one floor podium; Tower B, 44 storeys and Tower C, 37 storeys atop of mutual 4-5 storey podium.

8The proposal contains 600 square metres of commercial space at grade, 1,390 residential apartment units (at grade and above), and vehicular access from Frances Avenue and Green Road.

LEGISLATIVE TESTS

9An appeal to this Tribunal pursuant to s. 45 of the Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant, NHDG. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect, being A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”).

10Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:

a. maintain the general intent and purpose of the Official Plan,

b. maintain the general intent and purpose of the Zoning By-law,

c. are desirable for the appropriate development or use of the land, building or structure; and

d. are minor in nature.

HEARING

11To support the proposal, the sole witness called was Sarah Knoll, a Land Use Planner who, upon review of her Curriculum Vitae and Acknowledgement of Expert’s Duty form, was qualified on consent by the Tribunal to provide opinion evidence in land use planning.

12Ms. Knoll provided the Tribunal with a detailed overview of the site, surrounding area and the proposed development. Ms. Knoll opined that the minor variances, as amended, meet all the applicable four tests of the Act and the provincial policy tests. The amended application, has regard to matters of provincial interest in s. 2 of the Act, conforms and does not conflict with the GP, is consistent with the PPS and represents good land use planning.

Maintains the General Intent and Purpose of the Official Plan

13The Subject Property is designated Neighbourhoods on Schedule E – Urban Structures and designated Neighbourhoods on Schedule E-1 – Urban Land Use Designations in the Urban Hamilton Official Plan (“UHOP”). Ms. Knoll opined that “all of the proposed uses are permitted with the UHOP”. She further explained that the planned function of the site, being mixed-use (commercial and residential) is maintained, meeting the intent and purpose of the UHOP designation.

14Ms. Knoll testified that the reduction in landscaping, parking, and lot frontage calculation meet the general intent and purpose of the UHOP. She further opined that the parking proposed is an adequate supply on site and has been supported by the Parking Study prepared by Paradigm Transportation Solutions Ltd.

Maintains the General Intent and Purpose of the Zoning By-law

15The Subject Site is zoned a site-specific Mixed Use Commercial MUC-4 zone within the former City of Stoney Creek Zoning By-law 3692-92.

16Ms. Knoll opined that the proposed development maintains the general intent and purpose of the ZBL. There is suitable transition between the built form and the townhouses across the street on the north side of Frances Avenue, a required minimum amount commercial space at grade and at grade residential units in a specific location (which will not impose on the commercial area).

17The Subject site has ample frontage onto the public road; however, a technical variance is needed as the defined front yard does not meet the zoning requirements.

18Ms. Knoll informed the Tribunal that the required amenity area has “never been applied to any built development in the former City of Stoney Creek”. Additionally, she noted that there is sufficient landscape open space and as mentioned above an appropriate ratio of onsite parking.

Desirable and Appropriate

19It is the opinion of Ms. Knoll that the proposed development is desirable and appropriate for the lands. She further testified that the “variances will not negatively affect the surrounding neighbourhood”. The site has suitable amenity space for the residential units, and the landscape design will be supported by low impact development implementation.

Minor in Nature

20Finally, it is the opinion of Ms. Knoll that the final test, being minor in nature, is met. The location of the at-grade residential units does not impact the site’s ability to provide commercial uses, the reduction of landscape open space is a reduction of 5%, and the parking ratio will not result in over-spill onto off site locations.

SITE PLAN

21The Site Plan before the Tribunal is on the basis of the minor variances above. On consent of the City, the Applicant provided the Tribunal with:

a. Attachment 3 – Conditional site plan approval letter from the City

b. Attachment 4 – Redline Site Plan

c. Attachment 5 – Redline Landscaping Plan

d. Attachment 6 - Redline Elevations

22Through the site plan process, all components of such meet the requirements of the ZBL, subject to the amended minor variances, satisfies the requirements of s. 41 of the Act, are consistent with the PPS, have had regard to matters of Provincial Interest, conforms to the UHOP, and represent good planning.

FINDINGS

23The Tribunal accepts the uncontested planning evidence and opinions of Ms. Knoll and is satisfied that the amended minor variances have regard for matters of provincial interest, are consistent with the PPS, conforms to the Growth Plan and meets all four tests under s. 45(1) of the Act. Furthermore, the Tribunal finds that the proposed site plan is representative of good planning; has appropriate regard for matters of Provincial Interest; is consistent with the PPS; conforms to the Growth Plan, UHOP; and is compliant with the ZBL subject to the aforementioned minor variances.

ORDER

24THE TRIBUNAL ORDERS that:

a. the appeal is allowed and the variances to Former City of Stoney Creek Zoning By-law No. 6593 are authorized subject to the conditions set out in Attachment 2 to this Order.

b. the site plan prepared by Granziani Corazza Architects dated February 10, 2023 is approved subject to the conditions set out in Attachments 3 through 6 to this Order.

“Kurtis Smith”

KURTIS SMITH 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.