Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
February 13, 2024
CASE NO(S).:
OLT-23-000802
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Binbrook Heritage Developments Inc.
Subject:
Minor Variance
Description:
To increase the permitted number of storeys on the Subject Lands from six-storeys to seven-storeys
Reference Number:
GL/A-23:16
Property Address:
3033 – 3063 Binbrook Road, Glanbrook
Municipality/UT:
City of Hamilton
OLT Case No.:
OLT-23-000802
OLT Lead Case No.:
OLT-23-000802
OLT Case Name:
Binbrook Heritage Developments Inc. v. Hamilton (City)
Heard:
December 12, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Binbrook Heritage Developments Inc.
P. Harrington
City of Hamilton
P. MacDonald
DECISION delivered BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal was very recently converted to a Settlement Proposal (“Settlement”) hearing from a previously scheduled de novo Minor Variance Application (“MVA”) hearing resulting from an appeal under s. 45(12) of the Planning Act (“Act”) because of the denial of one of three variance requests by the Committee of Adjustment (“COA”) in the City of Hamilton (“City”). The MVA appeal was filed by Binbrook Heritage Developments Inc. (“Appellant”) regarding the properties located at 3033-3063 Binbrook Road (“Subject Lands”).
2The purpose of the Application was to facilitate an increase in the permitted number of storeys on the Subject Lands from six to seven storeys and two setback variances for westerly and easterly balconies, respectively. The matter was previously before the Tribunal as a settlement proceeding which was approved on May 14, 2021, resulting from an agreement between the Appellant and the City. The previous settlement approval included an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”), respectively, which permitted the development of the Subject Property for a six-storey mixed-use building having a maximum height of 26 metres. The development concept received conditional Site Plan Application (“SPA”) approval from the City on September 22, 2021, and following some design-related changes in this process, it resulted in the need for three variance requests, which are outlined below.
3On January 23, 2023, the Applicant filed a MVA in respect of the Subject Lands. The variances sought at the COA included the following:
A maximum building height of 26 metres (“m”) and seven storeys shall be provided instead of the required maximum building height of 26m and six storeys (“Variance 1”);
A maximum encroachment of 1.3m for a balcony within the Westerly Side Yard shall be provided instead of the maximum encroachment of 0.0m for a balcony within the Westerly Side Yard (“Variance 2”);
A maximum encroachment of 6.5m for a balcony within the Easterly Side Yard shall be provided instead of the maximum encroachment of 1.5m for a balcony within the Easterly Side Yard. (“Variance 3”);
4The COA issued its Decision on May 18, 2023, approving Variance 2 and Variance 3 with the following conditions:
The outstanding items in the CHIA Addendum be submitted to the satisfaction and approval of the Manager of Heritage and Urban Design prior to any alterations.
A Documentation and Salvage Report, Moving Plan and Conservation Plan be submitted to the satisfaction and approval of the Director of Planning & Chief Planner.
5Variance 1 was denied by the COA, resulting in the appeal filed on June 6, 2023.
6Notice of this hearing was issued by the Tribunal on October 26, 2023, and the Exhibit List for the purposes of the Settlement includes the following:
Exhibit 1- Witness Acknowledgement of Expert’s Duty and Curriculum Vitae of Matt Johnston;
Exhibit 2-Completed Document Book;
Exhibit 3-Witness Planning Outline and Draft Order; and,
Exhibit 4-Minutes of Settlement.
7There were no other requests for Party or Participant Status at the Hearing.
LEGISLATIVE FRAMEWORK
8As a Settlement matter, this Hearing is heard de novo, pursuant to s. 45(1) of the Act, which establishes the ”four tests’’. In other words, to authorize all three of the variances, the Tribunal, in an Appeal, must be satisfied that each of the 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.
9In addition, s. 3(5) of the Act requires the Tribunal's Decision to be consistent with policy statements and Provincial plans, including the Provincial Policy Statement 2020 (“PPS”), and conforms with a Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”); the Urban Hamilton Official Plan (“UHOP”); and to the Binbrook Village Secondary Plan (“BVSP”).
10The Tribunal must also have regard to the matters of Provincial interest set out in section 2 of the Act, as well as the decision of the COA and the information considered in the course of making its Decision, as set out in section 2.1(1) of the Act.
EVIDENCE AND SUBMISSIONS
11Matt Johnston, a registered Planner, appeared on behalf of the Appellant and was properly qualified by the Tribunal to provide expert land use planning testimony in support of the Settlement and on consent with Counsel for the City.
Variance 2 and Variance 3
12Mr. Johnston provided a brief but thorough overview of the history of the Binbrook Community and outlined the details of the matter before the Tribunal. He notes that he assumed the file in late 2022 and initially focused his testimony on the COA’s approval of Variance 2 and Variance 3. He reinforced the COA’s decision supporting both variances on the basis that the ‘four’ statutory tests have been achieved, with some clarification as to the conditions associated with those approvals as described in paragraph 4.
13Furthermore, in relation to Variance 2, Mr. Johnston opines that the request granted by the COA accommodating the 1.3 m westerly side yard setback for a balcony limited any adverse impact on the neighbouring community and continues to fall within the 18 m setback requirement, resulting in a minor encroachment.
14Regarding Variance 3, Mr. Johnston opines that the easterly side yard setback, accommodating a rooftop balcony, would not have any adverse impact on the surrounding neighbourhood.
15Mr. Johnston concludes that based on the fact that City Planning recommended approval in their Staff Report No. GL/A-23:16 and that both variances were approved by the COA, the Decision also had appropriate regard for s.2 of the Act, maintained consistency with the PPS, and conformed with the GP, UHOP, and BVSP.
16His opinion remains consistent with this at the Hearing and recommends that Variance 2 and Variance 3 be allowed by the Tribunal in accordance with the COA Decision and its requisite conditions.
Variance 1
17Mr. Johnston then proceeded to address in greater detail the tests as they apply to Variance 3, which was denied at the COA. The Settlement before the Tribunal recommends that a seven-storey building containing 134 residential units and 135 surface parking stalls be allowed.
18Mr. Johnston also asserts that while the number of storeys has increased from six (6) to seven (7) since the most recent Site Plan resubmission, the building’s height remains at 22.70 m, “by way of marginal reductions to the floor-to-ceiling height of each unit, facilitating larger units.” Furthermore, this massing is supported by the Tribunal’s May 14, 2021, Decision (PL170981), which prescribes a maximum building height of 26.0 m.
19Mr. Johnston’s testimony focused on the statutory tests in support of the variance request:
20(1) Maintains the general intent and purpose of the Official Plan:
The UHOP designates the Subject Lands for Site-Specific medium density-mixed use, as amended, in Exhibit 2 (pg. 44 OPA-131);
The BVSP identifies the need for a pedestrian-focused overlay allowing for streetscape and other urban design improvements that are incorporated and maintained in the revised plans; and,
The change proposed to a seven-storey building is appropriate in that the previously approved 26 m height is maintained and the building envelope remains the same, satisfying the policy framework.
21(2) Maintains the general intent and purpose of the Zoning By-law (“ZBL”):
The Site-Specific ZBL approved from the original settlement Decision is the basis for the Variance 1 request at the COA, and Mr. Johnston opines that the request maintains the built-form and massing of the proposal, therefore meeting the original intent of the approved ZBL; and,
“The intent of the height regulation is to ensure appropriate massing. As considered in the LPAT Decision dated May 14, 2021 (PL170981), the 26-metre height regulation works together with the balance of the site-specific zoning regulations to ensure appropriate massing. As Variance No. 1 maintains the 26-metre height regulation, the intent of the Zoning By-law is maintained.” (Exhibit 3, pg.27).
22(3) Is desirable for the appropriate development or use of the land, building or structure:
The proposed development facilitated by the Settlement helps to introduce an improved variety and a more diverse range of units identified under the conditions agreed upon and serves the need to provide more affordable options to prospective owners.
Maintaining the existing building envelope with an increase in unit count capped at 134 in total enhances options for families and others who may require additional space.
23(4) Is minor in nature:
The Settlement maintains “compatibility,” which in his outline (Exhibit 3, pg. 26) states that the direction given in the UHOP provides the definition of “Compatibility” as “Land uses and building forms that are mutually tolerant and capable of existing together in harmony within an area. Compatibility or compatible should not be narrowly interpreted to mean ‘the same as’ or even as ‘being similar to’”.
He further emphasizes that the Settlement continues to adhere to previously approved site-specific conditions, in addition to those outlined as conditions before the Tribunal as proposed.
He notes that “as the variance maintains the angular [plan], sun/shadow, and massing, the proposal remains compatible and the Variance No. 1 is considered to be minor in nature.”
24Mr. Johnston’s Planning Outline (Exhibit 3, pg. 27) also concludes the following:
- Resulting from liaison with the City of Hamilton, the approval of the Minor Variance is recommended, subject to the following two conditions:
(a) The permitted number of Dwelling Units will be capped at 134.
(b) At least 36.5% of the total number of Dwelling Units built will be two-bedroom units or larger.
(i) For greater certainty and for the purposes of this condition, “two- bedroom units” shall mean a Dwelling Unit with two or more Habitable Rooms for the purposes of sleeping, and each such Habitable Room shall meet the requirements for a bedroom under the Ontario Building Code for size and means of egress; and,
(ii) The Gross Floor Area for all two-bedroom units shall be a minimum of 62.6 sq m (673 sq ft).
25Mr. Johnston further concludes that the aforementioned conditions are appropriate as they work [in tandem] with the site-specific zoning regulations to ensure the implementation of and conformity to the applicable planning policy framework. Following [his] review of the Subject Lands, surrounding uses, supporting studies, applicable planning and policy framework, and the expressed vision of City Council, Mr. Johnston opined that the proposed Minor Variance application and development proposal:
Is consistent with the PPS;
Conforms to the GP as this development proposal represents an appropriate form of development in a built-up area;
Conforms with the UHOP and the BVSP; and,
Meets the ‘four tests’ as outlined in Section 45(1) of the Planning Act.
26Finally, Mr. Johnston concludes that all of the variances have appropriate regard for s.2 of the Act.
ANALYSIS AND FINDINGS
27Regarding Variance 2 and Variance 3, the Tribunal finds that it agrees with the original decision of the COA which approved these two requests and the uncontroverted testimony of Mr. Johnston, which recommended approval of these two requests.
28Regarding Variance 1, the Settlement proposes a maximum building height of 26m and seven-storeys instead of the previously required maximum building height of 26m and six-storeys. It’s important to note that the overall maximum building height has not changed and the additional conditions outlined below are part of the current concept:
Conditions:
(a) The permitted number of Dwelling Units will be capped at 134.
(b) At least 36.5 percent of the total number of Dwelling Units built will be two-bedroom units or larger.
(i) For greater certainty and for the purposes of this condition, “two-bedroom units” shall mean a Dwelling Unit with two or more
Habitable Rooms for the purposes of sleeping, and each such
Habitable Room shall meet the requirements for a bedroom
under the Ontario Building Code for size and means of egress; and,
(ii) The Gross Floor Area for all two-bedroom units shall be a
minimum of 62.6 sq m (673 sq ft).
Site Architectural Heritage:
29The ongoing Site Plan approval process for the proposed development will ensure the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest. The existing heritage carriage house is being incorporated into the final design and will be subject to the Ontario Heritage Act preservation guidelines.
30The Tribunal also notes, the retention of the heritage coach house is secured through appropriate conditions of site plan approval.
31Finally, with the aforementioned conditions, and having reviewed the Exhibits filed, combined with the uncontroverted evidence of Mr. Johnston, and submissions of Counsel on behalf of both Parties in support of the Appeal the Tribunal has determined that the Appeal meets the requirements of subsections 2 and 45(1) of the Act, is consistent with the PPS and is in conformity with the GP, UHOP, and GVSP.
32The Tribunal is also satisfied that the Appeal represents good planning and the orderly development of safe and healthy communities, and notes that the additional range of unit types proposed, support the achievement of complete communities.
BILL 150
33The Tribunal is aware that Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023 (“OPAA”), received Royal Assent on December 6, 2023.
34Because the matter was heard subsequent to this legislation, the Tribunal reached out for comment from the Parties on several occasions for their submissions on the potential impact of Bill 150. Only Counsel for the Applicant responded who has stated that Bill 150 does not affect this matter. In the absence of a response from the City despite several attempts, it is assumed there are no concerns from the City, and the Tribunal will proceed with the issuance of the decision concurring with the Settlement.
ORDER
35THE TRIBUNAL ORDERS that:
- The Appeal is allowed, and the minor variances to Zoning By-law No. 464 are authorized subject to the following conditions.
a. The outstanding items in the CHIA Addendum be submitted to the satisfaction and approval of the Manager of Heritage and Urban Design prior to any alterations.
b. A Documentation and Salvage Report, Moving Plan and Conservation Plan be submitted to the satisfaction and approval of the Director of Planning and Chief Planner.
c. The permitted number of Dwelling Units will be capped at 134.
d. At least 36.5 percent of the total number of Dwelling Units built will be two-bedroom units or larger:
i. For greater certainty and for the purposes of this condition, “two-bedroom units” shall mean a Dwelling Unit with two or more Habitable Rooms for the purposes of sleeping, and each such Habitable Room shall meet the requirements for a bedroom under the Ontario Building Code for size and means of egress; and,
ii. The Gross Floor Area for all two-bedroom units shall be a minimum of 62.6 sq m (673 sq ft).
36The Tribunal may be spoken to concerning issues arising from the implementation of this Order.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.