Zest Communities Inc. v. Hamilton (City), 2023 CanLII 87718

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 21, 2023

CASE NO(S).: OLT-22-002312

Applicant/Appellant: Zest Communities Inc.

Subject: Consent - refused by Approval Authority

Description: To permit the conveyance of a parcel of land for future development and to retain a parcel of lands for existing residential community

Reference Number: HM/B-18:47

Property Address: 393 Rymal Road W

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-22-002312

OLT Case Name: Zest Communities Inc. v. Hamilton (City)

Heard: September 12, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Zest Communities Inc. (“Applicant”)

Zachary Fleisher David Bronskill

City of Hamilton (“City”)

Rachel McVean

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is an appeal by the Applicant pursuant to 53(19) of the Planning Act, R.S.O 1990, c. P. 13, as amended (“Act”) of a refusal by the City’s Committee of Adjustment of an application for Consent. The Applicant is seeking to eventually redevelop a property known municipally as 393 Rymal Road West (“Subject Property”) in the City by constructing 374 apartment dwelling units, 42 bungalow townhouse units, and 14 three-storey block townhouse units. The proposed development also includes a two-storey commercial building. The Consent application is a step towards that eventual redevelopment.

2A Notice of Hearing was sent administratively by the Tribunal on June 28, 2023.

3No other person sought Party or Participant status.

4The Parties came to an agreement on the outstanding issues with respect to the Consent application (“Proposed Settlement”) as evidenced by Minutes of Settlement filed with the Tribunal and marked as Exhibit 2. The Hearing is to consider those matters in the Proposed Settlement which are within the jurisdiction of the Tribunal. The Applicant has a related Zoning By-law Amendment application (“ZBA”) still under consideration by the City. The ZBA is not before the Tribunal.

SUBJECT PROPERTY AND BACKGROUND

5The Subject Property is part of St. Elizabeth Village, a retirement community, located at the south-east corner of Garth Street and Rymal Road in the City. It is presently a 55+ gated retirement community, home to nearly 1,000 residents. The community currently includes approximately 556 life-lease townhouse units, a multistorey assisted living building, a four-storey commercial/retail building, and the St. Elizabeth of Hungary Catholic Church. The property is traversed by 17 pond features which provide both aesthetic benefits and the stormwater detention function for a drainage area.

6St. Elizabeth Village was previously owned and operated by the St. Elizabeth Home Society. Founded by Sister Elisabeth Manhertz in 1959, the St. Elizabeth Home Society was created with the purpose of developing life-lease housing accommodations for elderly populations. In life-lease housing, residents purchase a life-lease interest in their home, at market value. They then have exclusive use of their home and shared use of all common areas and facilities for as long as they wish, similar to traditional condominium ownership. The life-lease form of tenure can be registered on the title of the property, protecting residents’ interests. As the market value of real estate increases, so does the value of the Life Lease Interest, providing equity growth similar to single family home ownership. When developed in the 1980’s, the St. Elizabeth Village was the first gated life-lease community of its kind in Canada.

7St. Elizabeth Village has developed gradually over time. It was purchased by the Applicant in 2014. The Applicant is committed to continuing the St. Elizabeth Home Society's mandate of providing life-lease accommodations for a broad spectrum of elderly populations within the City.

8In 2018, the Applicant made various applications with the City to enable the financing and future redevelopment of various parcels across St. Elizabeth Village. One of these applications was for the Consent application currently before the Tribunal. The Committee of Adjustment refused the Consent Application on January 20, 2022.

9The Applicant is seeking to sever an approximately 4.3 hectare parcel with 141.6 metres along Rymal Road West, i.e., the Subject Property. The retained parcel would be the existing retirement community of approximately 35.6 hectares. Attached to this Decision as Attachment 2 is a draft sketch which illustrates the parcel to be severed. The draft sketch was marked as Exhibit 3 at the Hearing.

10The Subject Property is serviced, underdeveloped and vacant, with only a single barn structure utilised for recreational and maintenance purposes.

11The Subject Property, which is the focus of the Consent application, is designated as “Neighbourhoods” on Schedule E - ‘Urban Structure’ and designated “Neighbourhoods” on Schedule E-1 - ‘Urban Land Use Designations’ of the OP. The lands are further designated “St. Elizabeth Retirement Village” in the Kennedy East and West Neighbourhood Plans. The Subject Property does not contain any designations associated with Open Space, Core Areas, Streams, or components of the City’s Natural Heritage System.

EVIDENCE AND ANALYSIS

12The uncontested evidence in support of the Proposed Settlement was provided by Stephen Bedford, retained by the Applicant. He was qualified on consent as an expert on land use planning. Mr. Bedford’s written evidence, in the form of an Affidavit sworn on September 11, 2023, including various attachments, was marked as Exhibit 1.

13Although this was an uncontested matter, the Tribunal must nevertheless be satisfied that the consent application meets all legislative tests. In particular, the Tribunal must be satisfied that the proposal:

a. Has regard to matters of provincial interest in s. 2 of the Act;

b. Is consistent with the Provincial Policy Statement 2020 (“PPS 2020”);

c. Conforms to the Growth Plan for the Greater Horseshoe (“Growth Plan”);

d. Conforms to the City’s Urban Official Plan (“OP”); and

e. Otherwise has regard to the matters provided at s. 51(24) of the Act.

14The following is an overview of the uncontested evidence of Mr. Bedford, which is accepted by the Tribunal.

15Mr. Bedford testified that the Consent Application had regard to the criteria detailed at s. 51(24) of the Act.

16In particular, he noted that the Consent application had regard to matters of provincial interest including at ss. 2(f) (provision and efficient use of infrastructure), 2(h) (orderly development), 2(j) (provision of a range of housing), and 2(p) (appropriate location) of the Act. He also opined that the Consent application is not premature given that the ZBA, Site Plan and Building Permit approvals are required before redevelopment can begin. In his view, the Consent application, including the proposed conditions (discussed below) addresses any potential issues including those associated with conflicting uses with adjacent development, vehicular access, environmental concerns, servicing, and availability of schools.

17With respect to the OP, Mr. Bedford specifically testified, in light Policy 1.14.1.1 of the OP, which requires that division of land be through a plan of subdivision where a new road or an extension of a road is required, that the pending ZBA will establish the details of the redevelopment, and that a consent to sever is an appropriate mechanism, especially given that the Subject Property has frontage on a public road without requiring a new municipal right-of-way. Mr. Bedford also opined that the Subject Property can be severed in accordance with the policies of the OP, the Kennedy East and West Neighbourhood Plan, and the existing Zoning By-law performance standards. He also noted the availability of local water, wastewater, and stormwater infrastructure.

18In addition, Mr. Bedford opined that the Consent application was consistent with the PPS, including Policies 1.1.1, 1.1.2 and 1.6.7.2., and conformed to the Growth Plan, including Policies 2.2.1.2 and 2.2.1.4.

CONDITIONS

19The Proposed Settlement also envisages conditions of approval that need to be satisfied prior to the issuance of a Certificate of Consent. The Proposed Settlement contemplates that the City would clear the conditions, subject to Tribunal involvement if the Parties need assistance in their implementation.

20Mr. Bedford testified at the Hearing that, in his professional opinion, the conditions were reasonable pursuant to s. 51(25) of the Act. He testified that the conditions were either typical consent conditions that largely served an administrative purpose or were designed to achieve certain public good objectives. In the latter category, a condition ensures access to the severed lands, by means of an easement through Bishop Ryan Road, a private road. Similarly, other conditions will ensure, amongst other things, that adequate municipal servicing capacity is available, appropriate stormwater management is provided, and that future redevelopment is subject to the final approval of the ZBA.

21The Tribunal accepts the evidence of Mr. Bedford, finds the conditions to be reasonable, and concludes that the other modalities for the implementation of the conditions are appropriate.

CONCLUSION

22In summary, based on the foregoing uncontested evidence, the Tribunal finds that the Consent application, with its associated conditions of approval, has regard to matters of provincial interest, is consistent with PPS 2020, conforms to the Growth Plan, conforms to the OP, and otherwise has regard to the criteria at s. 51(24) of the Act. The Tribunal further finds that the Consent application is in the public interest and constitutes good planning.

ORDER

23THE TRIBUNAL ORDERS that:

a. The appeal is allowed in part and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order;

b. Pursuant to s. 53(39) of the Act, the City of Hamilton is granted authority to clear the conditions of consent and to administer final approval and certificate of consent pursuant to s. 53(42) of the Act; and,

c. The Tribunal may be spoken to should any issues arise with respect to the implementation of this Order, including for the purposes of reviewing and approving the easement over Bishop Ryan Way, if necessary.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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.

ATTACHMENT 1

Conditions of Consent

1. The Applicant shall submit a deposited Ontario Land Surveyor’s Reference Plan to the Committee of Adjustment Office, unless exempted by the Land Registrar. The reference plan must be submitted in PDF format and also submitted in CAD format, drawn at true scale and location and tied to the City corporate coordinate system. (Committee of Adjustment Section)

2. The Applicant shall pay any outstanding realty taxes and/or all other charges owing to the City Treasurer. (Committee of Adjustment Section)

3. The Applicant shall submit to the Committee of Adjustment office an administration fee, payable to the City of Hamilton, to cover the costs of setting up a new tax account for each newly created lot. (Committee of Adjustment Section)

4. The Applicant shall ensure compliance with Ontario Building Code requirements regarding spatial separation distances of any structures to the satisfaction of the Planning and Economic Development Department (Building Division – Building Engineering Section).

5. The Applicant shall provide an access easement over Bishop Ryan Way to ensure ongoing pedestrian and vehicular access to the Severed Parcel to the benefit of the future owner of the Severed Parcel. The easement shall be prepared to the satisfaction of the Director of Development Planning and shall be registered on title at the sole expense of the owner.

6. The Applicant shall enter into a binding and registered consent agreement with the City pursuant to subsection 53(12) and 51(26) of the Planning Act, which shall run with the Severed Parcel and shall enure to the benefit of and be binding upon the Applicant and its successors and assigns, including a future condominium corporation and including all subsequent owners of all or any portion of the Severed Parcel on a joint and several basis. This consent agreement shall be done all to the satisfaction of the Director of Development Planning and Chief Planner. The Applicant shall register a notice of this agreement on title for the Lands, all reasonable fees which are to be paid by the owner. This consent agreement shall restrict any as-of-right development on the Severed Parcel until Zoning By-law Amendment ZAC-20-029 or a future zoning by-law amendment application for the Severed Parcel is approved and include the following terms and provisions:

i) The Applicant shall submit a Functional Servicing Report, grading plans and servicing plans for the temporary and ultimate development scenario of the Severed Parcel to the satisfaction of the Director of Development Engineering.;

ii) The Applicant shall acknowledge that the City has not verified servicing capacity for the Severed Parcel and is not making any guarantees that the Severed Parcel is capable of being serviced;

iii) The Applicant shall provide verification to support the amount of wastewater needed to facilitate the proposed development scenario of the Severed Parcel to the satisfaction of the Director of Development Engineering;

iv) Restriction as-of-right development pending the approval of Zoning By-law Amendment ZAC-20-029 or a future zoning by-law amendment application for the Severed Parcel;

v) The dedication of any land required for road widening / right of way / service access, as deemed necessary to facilitate the proposed development of the Severed Parcel to the satisfaction of the Director of Development Planning and Chief Planner;

vi) The dedication of easements for the servicing of the Severed Parcel and adjacent properties to facilitate the proposed development of the Severed Parcel, subject to the terms of the existing Easement Agreement executed on October 30, 2019 regarding the maintenance and operation of stormwater management ponds located on the Lands (the “Easement Agreement”), as deemed necessary and to the satisfaction of the Director of Planning and Chief Planner;

vii) An agreement not to oppose a Holding provision on the Severed Parcel;

viii) An agreement to enter into development agreements as deemed necessary, including but not limited to External Works Agreements and Joint Use Agreements, to facilitate the proposed development of the Severed Parcel to the satisfaction of the Director Development Planning and Chief Planner.

ix) The Applicant shall agree to obtain any permit or necessary approvals from the Ministry of Environment Conservation and Parks (MECP) for the proposed stormwater management works on the Severed Parcel in accordance with the Ontario Water Resources Act, R.S.O., 1990 c. O.40, and Ontario Regulation 525/98, or provide a confirmation letter stating that no permit or approvals are required as verified by a professional and qualified engineer or the MECP, subject to the terms of the Easement Agreement, all to the satisfaction of the Director of Development Engineering.

ATTACHMENT 2