Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
September 26, 2023
CASE NO(S).:
OLT-22-004156
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
2691823 Ontario Inc.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Purpose:
To permit a six-storey residential apartment building with commercial uses at grade.
Property Address:
442, 450, 454, and 462 Wilson Street East
Municipality:
City of Hamilton
Municipal File No.:
UHOPA-21-023/ZAC-21-049
OLT Case No.:
OLT-22-004156
OLT Lead Case No.:
OLT-22-004156
OLT Case Number:
2691823 Ontario Inc. 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:
2691823 Ontario Inc.
Subject:
Application to amend Zoning By-law - Refusal or neglect to make a decision
Purpose:
To permit a six-storey residential apartment building with commercial uses at grade.
Property Address:
442, 450, 454, and 462 Wilson Street East.
Municipality:
City of Hamilton
Municipal File No.:
UHOPA-21-023/ZAC-21-049
OLT Case No.:
OLT-22-004157
OLT Lead Case No.:
OLT-22-004156
Heard:
September 18, 2023 by video hearing
APPEARANCES:
Parties
Counsel
2691823 Ontario Inc.
Ira T. Kagan
Sarah R. Kagan
City of Hamilton
Peter Krysiak
Niagara Escarpment Commission
Baiqing Luo
Ken Hare
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON SEPTEMBER 18, 2023 AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
12691823 Ontario Inc. (“Applicant”) appealed the refusal by the Council of the City of Hamilton (“City”) of an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) sought for lands known municipally as 442, 450, 454, and 462 Wilson Street E in the City (“Subject Site”).
2A Case Management Conference (“CMC”) took place on October 20, 2022, wherein it was confirmed that adequate Notice had been provided on this matter and no further Notice would be required. The Affidavit of Service was made Exhibit 1 at the CMC and remained Exhibit 1 at this Hearing. The Tribunal granted Party Status to James and Nancy MacLeod and to the Niagara Escarpment Commission (“NEC”). Additionally, the Tribunal granted Participant Status to Klaus Detmar, Ancaster Village Heritage Community (“AVHC”), Daniel and Rita Faulkner (“the Faulkners”), and Richard Parascandalo.
3On August 8, 2023, James and Nancy MacLeod withdrew their status as a Party.
4The Applicant and the City reached a settlement with respect to this matter. The Applicant and the NEC also reached a settlement. As such, this Hearing took place to allow the Tribunal to consider and approve the settlement if warranted. The Parties jointly requested that the Tribunal approve the OPA and ZBA as revised by the settlement agreement.
5In support of the settlement, the Tribunal received the following materials, which were made Exhibits at the Hearing:
a. EXHIBIT 2: An Affidavit sworn by Brenda R. Khes, Land Use Planner, on September 12, 2023, containing her written testimony in support of the settlement and a draft of the instruments before the Tribunal;
b. EXHIBIT 3: Minutes of Settlement as between the Applicant and the City, dated July 19, 2023; and
c. EXHIBIT 4: Minutes of Settlement as between the Applicant and the NEC, dated July 10, 2023.
6Additionally, the Tribunal received updated statements from the following Participants, containing comments on the settlement reached between the Parties:
a. Statements from the AVHC, dated September 7 and 15, 2023; and
b. Statements from the Faulkners, dated September 11 and 15, 2023.
PROPOSAL, OPA, AND ZBA
7The purpose of the OPA and ZBA is to allow for the development of a 4 to 7 storey mixed-use building, including commercial uses; or alternatively, a retirement home (“Proposal”). Regardless of which use is built, the built form of the development is reflected in the same proposed ZBA. The total gross floor area (“GFA”) of the Proposal is approximately 11,000 square metres (“m2”) and includes: a minimum of 450 m2 of commercial GFA, 158 residential units ranging from one to three-bedroom units, and 121 below grade parking spaces to serve the residents and visitors. In addition, the Proposal includes the retention of two existing (listed but not registered) heritage buildings facing Wilson Street East.
8The OPA is required to amend the Urban Hamilton Official Plan (“UHOP”) to create a new Site-Specific Policy within the Ancaster Wilson Street Secondary Plan (“AWSSP”) to permit residential uses on the ground floor facing a Pedestrian Focus Street and to specify additional urban design requirements to facilitate the development of a mixed-use, multiple dwelling. The planner who testified at the Hearing, Ms. Brenda Khes, explained that in November 2022, UHOP Amendment No. 167 (“OPA 167”) was modified and approved by the Minister of Municipal Affairs. That approval provided for additional height on the Subject Site, conditional on meeting certain criteria. City Staff have since confirmed that a Site-Specific OPA is no longer required to address height or density but that one is required to permit residential uses on the ground floor of a mixed-use building.
9The ZBA is required to amend the City of Hamilton Zoning By-law No. 05-200 (“City’s ZBL”) by changing the zoning on the Subject Site from the Mixed Use Medium Density – Pedestrian focus (C5a, 570) Zone to the Mixed Use Medium Density – Pedestrian Focus (C5a, 861, H155) Zone. The ZBA would permit a Retirement Home, as well as site specific modifications to address maximum height, minimum setbacks, minimum commercial GFA, and setbacks and façade glazing to address the design of the building achieved through the settlement.
10As outlined in Exhibit 4, and detailed at the Hearing, specific provisions have been included in the proposed OPA and ZBA to ensure that the NEC’s concerns were appropriately addressed and to address views from and to the Niagara Escarpment. The proposed OPA specifically states that “uplighting shall not be permitted” and that “new development shall incorporate darker colours on the facades of upper storeys”. In addition, the proposed ZBA requires that the building be setback from Rousseaux Street pursuant to the Proposal by including specific minimum setback regulations from the hypotenuse of the daylight triangle as well as the front lot line.
HEARING
11In support of the settlement reached between the Parties, the Applicant called one witness and provided the Curriculum Vitae and signed Acknowledgement of Expert Duty form for Brenda R. Khes. Ms. Khes was qualified, without objection, to provide expert opinion evidence in the field of Land Use Planning.
12The planning documents affecting this matter include: s. 2 of the Planning Act (“the Act”); the Provincial Policy Statement, 2020 (“PPS”); A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, as amended (“Growth Plan”); the Niagara Escarpment Plan (“NEP); and the UHOP, including OPA 167 and the AWSSP.
13Ms. Khes testified that the proposed OPA and ZBA are appropriate from a land use planning perspective. They, as well as the Proposal, have regard to matters of provincial interest, are consistent with the PPS, and conform to the Growth Plan and the NEP.
14With respect to conformity with the UHOP, Ms. Khes explained that the proposed OPA before the Tribunal is in keeping with the in-force and applicable policies of the UHOP, with the exception of permitted residential use and/or a retirement home use on the ground floor, for which an amendment is being sought. In support of this opinion, Ms. Khes referred to numerous specific policies. She testified that pedestrian focus streets are intended to cater to pedestrians by creating a comfortable, active, and visually stimulating walking environment. Retail and service commercial uses are considered more active uses than residential or office uses since they serve to activate public spaces along the street with pedestrian movement in and out of the commercial businesses. In this case, commercial uses will be provided at grade, including the reuse / conversion of two existing heritage buildings for commercial purposes, as well as at grade commercial uses within the new built form along the Wilson Street frontage. In addition, a private/public open space (“POPS”) is proposed along Wilson Street, which will further encourage pedestrian interaction along the street.
15Ms. Khes further testified that the proposed OPA is in keeping with the policies of the UHOP related to mixed use development, housing, urban design, cultural heritage, archaeology, health and public safety, climate change, noise and vibration, energy and environmental design, road network, complete streets, traffic management and parking and loading. The Proposal is suitably located along two arterial roads with access to existing local public transit and opportunities for active transportation options, and will further support the financial viability and sustainability of these facilities. Finally, the proposed seven-storey height of the building conforms with the criteria established through OPA 167 with respect to shadows, and progressive stepping from adjacent land uses and the street. Overall, the Proposal will provide additional dwelling units and commercial development along a City-designated Pedestrian Focus street.
16Ms. Khes explained that the OPA conforms to the policies of the AWSSP, citing numerous policies such as Policy E.2.3.3.2 to E.2.3.3.11, and is therefore appropriate for the Subject Site. She specified that this conformity was achieved in a number of ways, such as by:
a. ensuring compatibility of the proposed height with adjacent land uses by minimizing shadow and other nuisance effects. Impacts to adjacent land uses will be minimized through the provision of transition in built form and height, landscape buffers, distance separations, and fencing;
b. providing for a transition and gradation in height to adjacent and existing residential development by the placement of the tallest portion of the building closer to the front of the Subject Site (Rousseaux Street) and decreasing the building height outward to the south (3-storeys portion) at the south end of the Subject Site along Wilson Street, and by retaining two, one-and-half storey listed heritage buildings along Wilson Street;
c. providing for a building height, massing, scale and arrangement that is designed to appropriately mitigate privacy and overlook concerns to both the existing buildings in the area and to the intention of the Community Node and gateway policies to provide for transit and pedestrian-focused corridor with transit supportive densities;
d. contributing further to a contemporary architectural style that will complement the existing character of the area, which is currently comprised of buildings from a range of historical periods and architectural styles;
e. providing soft and hard landscaping throughout the Subject Site, which provides a buffer between adjacent residential uses;
f. encouraging increased day and night activity along Wilson Streets through the proposed additional residential density, new commercial uses at grade, and the provision of the POPS area; and,
g. focusing intensification at the intersection of a major and minor arterial road.
17With respect to the ZBA, Ms. Khes opined that the requested modifications to the Mixed Use – Medium Density – Pedestrian Focus (C5A) Zone of the ZBL would conform to the policies of the UHOP and AWSSP, as proposed to be amended through the OPA.
18Ms. Khes provided a very detailed and thorough analysis regarding the OPA and the ZBA, citing numerous documents and policies, to support her conclusion that the proposed instruments met the legislative test and warrant approval. She opined that the Proposal is attractive and will not have unacceptable adverse impacts on the surrounding neighbourhood. Moreover, refinements to the building design through the Site Plan Control application process will further integrate the building into the neighbourhood. Ms. Khes concluded that the approval of the OPA and ZBA, as revised by the settlement, constitutes good planning and is in the public interest.
PARTICIPANT STATEMENTS
19Four Participant statements were filed with the Tribunal including Statements from: Richard Parascandalo; the AVHC; Klaas Detmar who lives directly east of the Subject Site; and the Falkners who live directly south of the Subject Site. Moreover, AVHC and the Faulkners provided additional statements as indicated at paragraph [6] of this Decision.
20As the Applicant’s Counsel pointed out, the final version of these instruments, which was the version before the Tribunal, was last modified in May 2023, and, as outlined in the Procedural Order, Participant statements were due on August 4, 2023. As such, no new information arose to warrant the submission of additional comments from AVHC or the Faulkners. Regardless, these additional submissions were accepted and reviewed by the Tribunal, and Ms. Khes address all Participant concerns in her written and oral testimony in great detail.
21Ms. Khes divided the concerns of the Participants into the following themes: building height and shadow impacts; village core streetscape and heritage preservation; traffic / access / Maywood neighbourhood; parking and deliveries; servicing; setbacks; and ground floor windows. Providing a significant amount of detail, Ms. Khes explained how the OPA, ZBA, and Proposal have been designed and planned in a way to appropriately respond to and address the issues raised in the Participant statements.
FINDINGS
22The Tribunal accepts the uncontested evidence of Ms. Khes, and finds that the requested OPA and ZBA: have due regard for matters of Provincial interest in s. 2 of the Act; are consistent with the PPS; conform with the Growth Plan; conform with the NEP; and conform with the UHOP and the AWSSP. Moreover, the Tribunal finds that the ZBA is a suitable amendment within the policies and provisions of the ZBL. In summary, the Tribunal finds that the OPA and ZBA represents good planning in the public interest.
ORDER
23THE TRIBUNAL ORDERS that:
a. The Applicant’s Official Plan Amendment appeal, pursuant to subsection 22(7) of the Planning Act, is allowed in part and the Urban Hamilton Official Plan of the City of Hamilton is hereby amended as set out in Schedule A to this Order.
b. The Applicant’s Zoning By-law Amendment appeal, pursuant to subsection 34(11) of the Planning Act, is allowed in part and the City of Hamilton’s Zoning By-law No. 05-200 is hereby amended as set out in Schedule B to this Order. The Tribunal authorizes the municipal clerk of the City of Hamilton to assign a number to this By-law for record keeping purposes.
24The Tribunal may be spoken to concerning issues arising from the implementation of this Order.
“Bita M. Rajaee”
BITA M. RAJAEE
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 A
SCHEDULE B