1312733 Ontario Inc. v. Hamilton (City), 2024 CanLII 29440

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 26, 2024

CASE NO(S).: OLT-21-001725

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1312733 Ontario Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a redevelopment of single detached dwellings, townhouses, and condominium townhouse dwellings

Reference Number: ZAC-20-043

Property Address: 1036-1090 Barton Street and 262 McNeilly Road

Municipality: City of Hamilton

OLT Case No.: OLT-21-001725

OLT Lead Case No.: OLT-21-001725

OLT Case Name: 1312733 Ontario Inc. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1312733 Ontario Inc.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit a redevelopment of single detached dwellings, townhouses, and condominium townhouse dwellings

Reference Number: 25T-202009

Property Address: 1036-1090 Barton Street and 262 McNeilly Road

Municipality: City of Hamilton

OLT Case No.: OLT-21-001726

OLT Lead Case No.: OLT-21-001725

OLT Case Name: 1312733 Ontario Inc. v. Hamilton (City)

Heard: December 14, 2023 by video hearing

APPEARANCES:

Parties

Counsel

1312733 Ontario Inc.

Jennifer Meader Nancy Smith

City of Hamilton

Paula Boutis

MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI ON december 14, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to the Final Order

INTRODUCTION AND BACKGROUND

1This settlement hearing is related to appeals filed by 1312733 Ontario Inc. (“Appellant”) against the failure of the City of Hamilton (“City”) to make a decision on Zoning By-law Amendment (“ZBA”) and Draft Plan of Subdivision (“DPS”) applications (“Applications”) pursuant to s. 34(11) and 51(34) of the Planning Act (“Act”) within the prescribed timeframe. The Applications apply to the lands known municipally as 1036-1090 Barton Street and 262 McNeilly Road (“Property”) in the Stoney Creek area of the City.

2The Property is located on the south side of Barton Street east of McNeilly Road and is comprised of five parcels of land that have merged on title and are under one ownership. The Property is currently vacant other than two detached dwellings along Barton Street, and has frontage of approximately 528.7 metres (“m”) on Barton Street as well as 20.1 m on McNeilly Road with an area of approximately 21.03 hectares.

3To the north of the Property are lands designated for light industrial uses in the Urban Hamilton Official Plan (“UHOP”). To the northeast is a commercial building and detached dwellings fronting on Lewis Road. To the east is an elementary school and lands owned by the City which are designated in the Fruitland-Winona Secondary Plan (“FWSP”) for a public park. To the south lands fronting onto Highway No. 8 are commercial uses and residential lots, occupied by detached dwellings. Barton Street and Highway No. 8 are identified as Major Arterial Roads and McNeilly Road is identified as a Collector Road in the FWSP.

4The Property is within the Greenfield Area in the UHOP, being within the Urban Boundary but outside of the Built-Up Area. Schedules E Urban Structure and E-1 Urban Land Uses Designations of the UHOP identifies the Property respectively as part of the ‘Neighbourhood’ urban structure and designated ‘Neighbourhood’. Additionally, Barton Street is identified as a ‘Secondary Corridor’ on Schedule E.

5The Property is subject to Zoning By-law 3692-92 (Stoney Creek) (“ZBL 3692-92”) and Zoning By-law 05-200 (Comprehensive) (“ZBL 05-200”). The ZBA proposes to rezone the Property under ZBL 05-200 to site-specific ‘R1’ (Low Density Residential) Zones, a site-specific ‘TOC 3’ (Multiple Residential) Zone, a ‘P1’ (Neighbourhood Park) Zone and a ‘P5’ (Conservation/Hazard Land) Zone. Following the approval of the ZBA, the City would then repeal ZBL 3692-92 as it applies to the Property.

6As applied for, the Applications were to facilitate the development of 154 single detached dwellings, 206 street townhouse dwellings, and 185 condominium townhouse dwellings. The Applications were filed with the City in November 2020, and deemed complete as of December 9, 2020. The Appellant filed a revised submission on December 15, 2021, subsequent to community consultation and in response to feedback received through the review of the original proposal. The revised Applications did not change significantly from the original submission and included increasing the size of the stormwater management pond (“SWMP”) block thereby reducing the total unit yield from 545 units to 542 units.

7The Tribunal received correspondence from the Appellant in advance of the hearing advising that the Parties have reached a settlement (“Settlement”) and requesting that the Tribunal convert the proceedings to a settlement hearing. The Parties in attendance confirmed that they consented to the conversion of the proceedings.

8In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the Settlement.

9The Settlement resulted in further revisions to the DPS including the increase in the SWMP block, the access from Street E to Barton Street has been removed and replaced with a cul-de-sac, and a temporary access block to Barton Street to provide secondary access to the development until the road network is complete, at which time the temporary access is to be converted to a pedestrian connection (“Proposed Development”).

10The Parties further advised the Tribunal that they were seeking Final approval in for both the ZBA and the DPS based on the Settlement, pending receipt by the Tribunal of the special conditions (“Conditions”) for the DPS.

LEGISLATIVE FRAMEWORK

11When considering appeals filed pursuant to s. 34(11) and 51(34) of the Act, the Tribunal must have regard to the matters of provincial interest pursuant to s. 2 of the Act, and the criteria for draft plans of subdivisions pursuant to s. 51(24) of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Tribunal must also be satisfied that the Applications conform with the UHOP.

12In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Applications represent good land use planning and are in the public interest.

EVIDENCE

13Prior to the commencement of the hearing, the Tribunal received the Affidavit of Mark Condello in support of the Proposed Development. The Tribunal qualified Mr. Condello, on consent, to provide opinion evidence pertaining to this matter in the area of land use planning.

14With respect to the regulatory and policy context, Mr. Condello opined that the Applications have regard for the applicable matters of provincial interest pursuant to s. 2 of the Act and the criteria for draft plan of subdivisions pursuant to s. 51(24) of the Act, and support the policies in the PPS and the Growth Plan including policies pertaining to the efficient use of urban land with existing services and planned or existing transit, policies for meeting a broad range of housing types and densities, the provision of a complete community.

The Planning Act

15It is Mr. Condello’s opinion that the Proposed Development and Applications have regard for the matters of provincial interest in s. 2 of the Act as:

• the Proposed Development does not contemplate development in natural areas, features or function and thus provides protection of ecological systems;

• the Archaeological Assessment prepared in support of the Proposed Development concludes no archaeological resources on the Property;

• the Proposed Development will be fully serviced with municipal sanitary, water and stormwater management services to the satisfaction of the City;

• the Proposed Development will result in the development of an underutilized parcel of land with residential uses in an efficient and compact urban form which will contribute to a wider range of housing options than currently exists in the neighbourhood;

• the Property is located within an existing neighbourhood with access to a full range of schools, health care facilities, community services and recreational facilities;

• the Proposed Development will generate new development charges and tax revenue for the City;

• the Property is located within the City’s Urban Boundary and is identified as greenfield development, as defined by the Growth Plan;

• the Urban Design Brief prepared in support of the Proposed Development provides a detailed description of the urban design direction and the overall configuration; and

• the Proposed Development will be required to comply with the Energy Efficiency Design requirements of the Ontario Building Code. Meeting such requirements will assist in reducing the impact of climate change through the introduction of buildings which are required to function more efficiently than older building stock. Increased energy efficiency of buildings assists in mitigating greenhouse gas emissions and adapting to the impacts of climate change.

16Mr. Condello also opined that the Proposed Development and Applications have appropriate regard to, and satisfy, the criteria set out in s. 51(24) of the Act as:

• The DPS creates blocks that are in keeping with the existing and planned context for the surrounding area. The public interest is protected as the Proposed Development does not negatively impact servicing and road network capacity and natural heritage resources, and builds on the principles of complete communities as established in the UHOP;

• The proposal conforms with the UHOP and implements the FWSP, both of which desigenate the Property for residential development;

• The Proposed Development will facilitate approximately 524 - 571 dwelling units, consisting of single detached dwellings, street townhouses and condominium townhouses (back-to-back townhouses, dual frontage townhouses and townhouse dwellings);

• The proposed public roads have been designed to municipal standards to ensure adequate and safe vehicle circulation and to accommodate required infrastructure, and right-of-way widenings along Barton Street and McNeilly Road will be dedicated to the City;

• The dimensions and shapes of the proposed lots are appropriate to facilitate the development of single detached dwellings, street townhouses and condominium townhouses;

• Restrictions and regulations for the development of the subdivision are included in the ZBA and in the Conditions;

• No substantial natural resources are evident on site, and flood control will be addressed through stormwater management plans that will be required through the Conditions;

• Adequate municipal services will be available, the particulars of which will be established through the Conditions and a corresponding Subdivision Agreement;

• The DPS has been designed to accommodate development in a logical pattern that will support the efficient installation of energy infrastructure; and

• The DPS includes two blocks along Barton Street that will facilitate a future condominium townhouse development which will be subject to Site Plan Control.

17Further, Mr. Condello noted that s. 51 (25) of the Act allows an approval authority to impose conditions of DPS approval and that the Parties have reached an agreement on the Conditions, which include the City’s Standard Form Subdivision Agreement as approved by City Council and special conditions. In his opinion, the Conditions have sufficient regard for matters of provincial interest.

Provincial Policy Statement, 2020

18In his Affidavit, Mr. Condello opined that the Proposed Development is consistent with the PPS, and in particular, supports policies 1.1.1, 1.1.3.2, 1.1.3.6, 1.6.3, and 1.7.1 pertaining to promoting efficient development and land use patterns, accommodating a range of housing types, requiring residential intensification, densities and a mix of land use that efficiently use resources, infrastructure and services, promoting active transportation and supporting long-term economic prosperity.

Growth Plan for the Greater Golden Horseshoe

19In his Affidavit, Mr. Condello further opined that the Proposed Development conforms with the Growth Plan, including several of the guiding principles in section 1.2.1, including supporting the achievement of complete communities, the provision of a wider range of dwelling types than currently exists within the neighbourhood, and supporting a range and mix of housing options to serve all sizes, incomes, and ages of households.

20Mr. Condello noted that the Proposed Development conforms to policies 2.2.1.2, 2.2.1.4 pertaining to directing growth to settlement areas with existing municipal water and wastewater systems, the achievement of complete communities by providing a diverse range of housing options, and section 2.2.7 related to requiring new development to support the achievement of complete communities, transit services and active transportation opportunities. He noted that the Property is located within the City’s Settlement Area and is supported by existing and planned infrastructure. He added that the proposal will facilitate development that supports the achievement of a complete community by providing a mix and range of housing options and supporting public health and mobility through access to public open space and trails.

Urban Hamilton Official Plan

21Mr. Condello opined that the Proposed Development conforms to the UHOP ‘Neighbourhood’ designation, maintains the general intent of the ‘Urban Corridor’ policy framework of Section E.2.4 of the UHOP for the lands fronting on Barton Street and meets the Growth Management objectives.

22In particular, Mr. Condello noted that Section E.2.4 of the UHOP outlines that Urban Corridors are a separate structural element from the Neighbourhoods, yet function as an integral part of the surrounding neighbourhood, and serve as a central focal point for a community. He advised that policy 2.4.3 provides that Urban Corridors be planned to accommodate “a range of higher density land uses” and policy 2.4.10 provides that the “built form along a[n] Urban Corridor shall generally consist of low to mid rise forms, but will vary along the length of the corridors with some areas permitted to accommodate high density and high rise built form.” Further, he noted that the policy framework also identifies that “Secondary Corridors shall generally accommodate retail and mixed use forms in small clusters along the corridors with medium density housing located between the clusters.”

23In Mr. Condello’s opinion, the proposal maintains the general intent of the ‘Urban Corridor’ policy framework provided in Section E.2.4 of the UHOP.

24In addition, Mr. Condello stated that the lands fronting on Barton Street are also designated ‘Medium Density Residential 2’ in the FWSP in keeping with the Urban Corridor policies as it permits multiple dwelling units and increased densities and heights. Further, he stated that the UHOP defines a ‘multiple dwelling’ as including “block townhouse dwellings, stacked townhouse dwellings, and apartment dwellings” and Blocks 181 and 182 on the DPS form part of the lands subject to the ‘Secondary Corridor’ and designated ‘Medium Density Residential 2’ and will be developed through a future Site Plan Application.

25Section E.3.0 of the UHOP outlines the ‘Neighbourhood’ designation policies and Mr. Condello advised that the policy framework supports complete communities, including a full range of residential types and densities as well as supporting uses. He assessed the criteria for development of lands within the “Neighbourhood” designation in policy E.3.2.7 as follows:

The proposed road network generally follows a grid system which allows for efficient connectivity for vehicles and pedestrians. The Urban Design Brief defines two character areas consisting of typical suburban neighbourhood and the condominium-promenade intersection on the north side of the site. More specifically it states, “most of the Proposed Development falls within what can be characterized as a “suburban neighbourhood”, with peripheral and internal dwellings facing internal streets. This area is proposed to include a mix of single detached homes and street townhomes in a variety of sizes. The Proposed Development incorporates driveways/ greenspaces at the frontage of these units to keep with the ‘front yard character’ seen in single family neighbourhoods.

The implementing Zoning By-law proposes zoning regulations to step back garages so that they do not dominate the streetscape.

The Proposed Development forms part of a larger planned community. The proposal provides for pedestrian connectivity to planned parks. A conceptual Landscape Plan was prepared in support of the Proposed Development. Landscaping details are determined at the Detail Design stage of the project following draft approval.

The Proposed Development will improve existing landscape features and overall landscape character of the surrounding area.

The Proposed Development complies with the UHOPs urban design policies.

26With respect to the DPS, Mr. Condello drew attention to the UHOP policies for the division of land and referenced policy F.14.1.2 that provides the criteria to be met for the approval of a DPS. He addressed each criteria as follows:

• the proposed plan of subdivision conforms to the Neighbourhood policies of the UHOP and the land use policies of the FWSP;

• the DPS and the Conditions appropriately implement the City’s staging of development and the logical and orderly development of the Property will be determined through the detailed design phase of the DPS, as required to clear the Conditions;

• The Property is located within a community with access to services and community facilities;

• No adverse impacts to the transportation system and the natural environment have been identified;

• The DPS is generally in keeping with the municipal road network as identified in the FWSP and allows for future connections with neighbouring lands;

• The DPS will not adversely impact municipal finances, as appropriate mechanisms for funding development are available; and

• the DPS meets all the requirements of the Act.

27With respect to the ‘Integrated Transportation Network’ policies in the UHOP, Mr. Condello noted that, through the settlement discussions, the DPS was revised with a permanent cul-de-sac at the north end of Street ‘E’ and with a temporary secondary access to Barton Street. He added that the temporary access will be converted to a pedestrian connection and that this arrangement is secured through the Conditions.

28Mr. Condello noted that the overarching policies of the UHOP provide no specific distinction between low, medium and high-density residential uses. Instead, the form and function of each residential density is determined based on location, scale and design direction for the purpose of secondary planning and zoning.

29In conclusion, it was Mr. Condello’s opinion that the Proposed Development and implementing ZBA and DPS conform to the relevant UHOP policies.

30The Province approved a new UHOP (“New UHOP”) on November 4, 2022, which requires single detached, semi-detached, duplex, triplex, fourplex and street townhouse dwellings to be permitted in all low-density residential areas. Mr. Condello noted that the Applications are not subject to the New UHOP but that he considered and concluded that the intent has been fulfilled as the ZBA rezones a majority of the lands to the ‘R1’ Zone, which allows for a wider range of permitted built forms.

Fruitland-Winona Secondary Plan

31With respect to the FWSP, Mr. Condello opined that the Proposed Development meets policy B.7.4.3 d) which provides criteria for the evaluation of development applications including:

i. Compatibility with adjacent land uses including matters such as shadowing, grading, overlook, noise, lighting, traffic and other nuisance effects;

ii. Transition in height and density to adjacent and existing residential development; (OPA 142)

iii. The relationship of the proposed lot(s) with adjacent and existing lot pattern and configuration; and,

iv. The policies in Section 7.4.14 – Block Servicing Strategy and all other applicable policies of this Secondary Plan. (OPA 142)

32Mr. Condello proffered that Barton Street is identified as a Pedestrian Promenade in the FWSP and it was his opinion that the Proposed Development meets policy B.7.4.3 e) which directs development on Barton Street adjacent to the Barton Street Pedestrian Promenade to be integrated visually and functionally into Barton and that an Urban Design Report will be required. He confirmed that an Urban Design Brief was submitted which provides design criteria and objectives for the Proposed Development.

33Mr. Condello further submitted that the Proposed Development meets the general policy framework of the residential policies of the FWSP and that the proposed development is anticipated to accommodate a population in keeping with the Province’s and City’s Growth Management objectives. He specified that the Proposed Development provides an overall density of approximately 43.8 to 47.7 units per net hectare and that, on an individual land use basis, it complies with the density and built form requirements of each applicable land use designation.

34Mr. Condello opined that the Proposed Development also meets the policies in the FWSP related to the Parks and Open Space designations, the ‘Block Servicing Strategies’ and stormwater management.

35In conclusion, Mr. Condello opined that the Proposed Development conforms to the relevant policies contained within the FWSP.

Conclusions and Recommendations

36Mr. Condello proffered his professional planning opinion that the Proposed Development and corresponding planning instruments have appropriate regard to matters of provincial interest, are consistent with the PPS, conform to the Growth Plan and conform to the relevant policies of the UHOP and the FWSP. He furthered that the ZBA and DPS are appropriate, represent good planning and are in the public interest.

ANALYSIS AND FINDINGS

37The Tribunal accepts the uncontroverted testimony and evidence of Mr. Condello.

38The Tribunal finds that the Proposed Development will fit harmoniously with the existing and planned built form context and will enhance the area by intensifying an underutilized site which is well-served with municipal infrastructure.

39The Proposed Development will be an efficient use of the land and will support the achievement of the PPS and Growth Plan policy directions promoting intensification within a built-up urban area. The Proposed Development will result in a desirable mixed-use intensification project having convenient access to transit, and providing a range of housing types.

40In consideration of the evidence of Mr. Condello and the revisions resulting in the Proposed Development, the Tribunal is satisfied that the ZBA and DPS have sufficient and proper regard for those matters of provincial interest as set out in s. 2 of the Act and the criteria in s. 51(24) of the Act. The Tribunal finds that the ZBA and DPS are consistent with the PPS, conform to the policies of the Growth Plan and the UHOP, are appropriate and desirable from a land use planning perspective and represent good land use planning.

41The Tribunal approves the ZBA and DPS, subject to the Conditions as set out in the Final Order.

FINAL ORDER

42THE TRIBUNAL ORDERS that the appeal is allowed and Zoning By-law 05-200 (Comprehensive) of the City of Hamilton is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the City of Hamilton to assign a number to this By-law and insert dates for record-keeping purposes.

43THE TRIBUNAL ORDERS that the appeal is allowed and the draft plan shown on the plan prepared by Glen Schnarr & Associates Inc. dated December 12, 2023, comprising Part of Lots 7 & 8, Concession 2, (Geographic Township of Saltfleet) City of Hamilton is approved, subject to the fulfillment of the conditions contained in the City of Hamilton’s Standard Form Subdivision Agreement and the special conditions all as set out in Attachment 2 to this Order.

44AND THE TRIBUNAL ORDERS that pursuant to subsection 51(56.1) of the Planning Act, the City of Hamilton shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

45The TRIBUNAL ORDERS that, in accordance with Rule 24.3 of the Tribunal’s Rules of Practice and Procedure, this Order is effective as of December 14, 2023.

“C. I. Molinari”

C. I. MOLINARI

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

ATTACHMENT 2