2626364 Ontario Inc. v. Hamilton (City), 2024 CanLII 40912

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 03, 2024

CASE NO(S).:

OLT-22-004848

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

2626364 Ontario Inc.

Subject:

Official Plan Amendment

Description:

To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium

Property Address:

2900 King Street East

Municipality/UT:

Hamilton

Municipal File No.:

UHOPA-22-022

OLT Case No.:

OLT-22-004848

OLT Lead Case No.:

OLT-22-004848

OLT Case Name:

2626364 Ontario Inc. v. Hamilton (City)

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

Appellant:

2626364 Ontario Inc.

Subject:

Zoning Bylaw Amendment

Description:

To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium

Property Address:

2900 King Street East

Municipality/UT:

Hamilton

Municipal File No.:

ZAC-22-048

OLT Case No.:

OLT-22-004849

OLT Lead Case No.:

OLT-22-004848

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

Appellant:

2626364 Ontario Inc.

Subject:

Site Plan

Description:

To permit development of 20-storey and 18-storey towers with total 564 units, connected by six-storey podium

Property Address:

2900 King Street East

Municipality/UT:

Hamilton

Municipal File No.:

DA-23-029

OLT Case No.:

OLT-23-000268

OLT Lead Case No.:

OLT-22-004848

Heard:

January 15 to 25, 2024 by Video Hearing; and February 27, 2024 in Writing

APPEARANCES:

Parties

Counsel

2626364 Ontario Inc. (“Applicant/Appellant”)

Denise Baker

City of Hamilton (“City”)

Brian Duxbury

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

INTRODUCTION

1These appeals arise from the City’s failure to decide within the statutory timeframe regarding the following applications:

(a) to amend the Urban Hamilton Official Plan (“OPA”),

(b) to amend the City of Hamilton Zoning By-law (“ZBA”), and

(c) for Site Plan Approval (“SPA”).

2The Applications were to facilitate the residential mixed-use development of a twenty-storey tower and an eighteen-storey tower at 2900 King Street East in Hamilton, Ontario (“Subject Property”).

HEARING

3Counsel for the Appellant informed the Tribunal that the OPA would not proceed as Official Plan Amendment 167 (“OPA 167”) had removed the density cap requirements, thus rendering it unnecessary to amend the Official Plan (“OP”). The OPA appeal was withdrawn.

4The SPA appeal was deferred by request of Parties, whose counsels opined that the ZBA should be disposed of first. Thereafter, should the Tribunal approve the ZBA, Parties could then request a date to determine the SPA and the Site Plan conditions.

5The ZBA before the Tribunal is the revised version, and the Parties agreed to only deal with this zoning appeal.

6The Appellant called expert witnesses:

i) Matt Johnston – Land Use Planning matters.

ii) Le’Ann Whitehouse Seely – Urban Design and Landscaping matters.

iii) David Eckler – Cultural Heritage matters.

7The City called expert witnesses:

i) Daniel Barnett – Land Use Planning matters.

ii) Michael Votruba – Urban Design matters.

iii) Melissa Kiddie – Natural Heritage matters.

iv) Chloe Richer – Cultural Heritage matters.

8The Tribunal qualified witnesses to provide expert opinion evidence in their respective disciplines. The Tribunal finds that witnesses gave their opinions in an independent and fair-minded manner.

9The Appellant and the City resolved transportation and traffic issues and did not call any witness in respect thereof. Wind issues were not considered as no expert witness was called. Shadowing concerns were discussed.

PROPOSED DEVELOPMENT

10In 2018, the Appellant submitted a Request for Formal Consultation for a proposed development concept consisting of a mixed-use building with two (2) towers – one being 18 storeys in height and the other 20 storeys – over a four-storey podium.

11On February 1, 2021, the City issued a Formal Consultation Waiver.

12A subsequent Formal Consultation Waiver was issued by the City on June 22, 2022 (FC-18-043), which reconfirmed the requirement for an OPA, ZBA, and SPA supported by supporting studies, plans, and reports.

13The OPA was required to redesignate the Subject Property from ‘Neighbourhoods’ to a site-specific ‘Mixed-Use Medium Density’ designation with added provisions permitting the proposed residential density of 969 units per hectare (“units/ha”), as well as a maximum building height of 20 storeys. The purpose of the previous proposed ZBA was to rezone the Subject Property from Community Commercial (C3) to a site-specific Mixed-Use Medium Density (C5) Zone in the City Zoning By-law No. 05-200.

14The ZBA and OPA submission package was provided to the City on June 24, 2022, and deemed complete on July 20, 2022. This proposal entailed one (1) 20-storey tower and one (1) 18-storey tower above a six-storey podium, containing a total of 564 residential units, 356 square metres (“m²”) of ground floor commercial space, and 422 vehicle parking spaces. The amending By-law included provisions for reduced setbacks, increased maximum building heights, reduced minimum amenity area, and reduced planting strip width requirements (“Proposed Development”).

15As a result of the removal of density calculations on a site-specific basis by virtue of OPA 167, an OPA is no longer required to facilitate the Proposed Development, and the lands can remain in the Neighbourhoods land use designation. Accordingly, the structure of the amending Zoning By-law has also been changed from what was included in the initial submission, which proposed a site-specific Mixed-Use – Medium Density zone, to correspond with the proposed OP designation.

16The revised ZBA (Exhibit 13) under appeal will enable the Proposed Development.

THE SUBJECT PROPERTY

17The Subject Property is located at the southwest corner of King Street East and Centennial Parkway North. The Subject Property has a frontage of approximately 67 metres (“m”) along King Street East and has a frontage of approximately 87 m along Centennial Parkway South and a lot area of approximately 5,800 m² (0.58 ha).

18The Subject Property is identified as a “Secondary Corridor” and “Neighbourhoods” on Schedule E – Urban Structure and designated “Neighbourhoods” on Schedule E-1 – Urban Land Use Designations in the Urban Hamilton Official Plan (“UHOP”).

19The Subject Property is zoned Community Commercial (C3) Zone in the City Zoning By-law No. 05-200 (“ZBL”), which permits a range of commercial uses but does not permit a multiple dwelling, and restricts the maximum building height to a maximum of 14 m.

20To the north are zoned Community Commercial (C3, 579) Zone, the lands to the northeast are zoned Neighbourhood Commercial (C2, 579) Zone, and the lands to the west are zoned Open Space (P4) Zone in the ZBL. The lands to the east are zoned Intensive Recreation (IR) and (IR-1) Zone in the Town of Stoney Creek Zoning By-law No. 3692-92. The lands to the south are zoned “RT-10” Townhouse District in the City Zoning By-law No. 6593.

21The Subject Property is bounded by the following:

i. A motor vehicle services station and restaurant to the north;

ii. A two-storey restaurant building to the northeast;

iii. Battlefield Park to the east;

iv. Vacant lands to the south; and,

v. A Municipal Cemetery to the west.

22The built form context consists of the following:

i. On the south side of King Street East, to the east of the Subject Property is Battlefield Park, and to the west of the Subject Property is a Municipal Cemetery; these lands are dominated by greenspace. Further to the east of Battlefield Park, the built form consists of low-rise built forms. For the lands west of the Municipal Cemetery, the built form consists predominately of low-rise buildings with one mid-rise eight-storey building located approximately 550 m to the west of the Subject Property.

ii. On the north side of King Street East, the built form predominately consists of low-rise buildings along the street. A mid-rise building with a height of eight storeys fronts onto King Street located approximately 500 m to the east of the Subject Property. Additionally, there are existing mid-rise buildings within 500 m in proximity to King Street, but which do not front onto King Street including multiple mid-rise buildings eight to nine-storeys in height on Village Green to the northeast, and a six-storey at 120 King Street West located to the rear of an existing low-rise building at 124 to 144 King Street West, located to the northwest.

iii. On the west side of Centennial Parkway South, the lands south of the Subject Property are vacant lands and, therefore, have no built form and consist of existing natural areas, which extend southward to the Niagara Escarpment. To the north of the Subject Property along the west side of Centennial Parkway North, the built form is predominately low-rise with a mid-rise seven-storey building located approximately 600 m to the north of the Subject Property.

iv. On the east side of Centennial Parkway South, the lands directly across the street and to the south consist of Battlefield Park, which extends southward to the Niagara Escarpment. To the north of King Street, the built form consists predominately of low-rise built forms.

23There are no existing tall buildings on the lands immediately adjacent to the Subject Property, nor are there any existing tall buildings within 500 m. In addition, there are no existing properties within this area in which zoning would permit a building height for a tall building (See Area Zoning Height Map: Tab 60 Exhibit 1). The policy direction outlined in the Old Town Secondary Plan (“OTSP”) generally contemplates low-rise and mid-rise built forms along Centennial Parkway South and King Street West. The Centennial Neighbourhood Secondary Plan (“CNSP”), located further to the north (approximately 1 kilometre (“km")), does contemplate high-rise built forms along Queenston Road and Centennial Parkway North (north of Queenston Road) in proximity to higher order transit (Light Rail Transit) and (Confederation GO station).

24The lands at the northwest, northeast, and southeast corners of the intersection of King Street and Centennial Parkway South are included in the OTSP. The land use designation in the OTSP for the lands in proximity to the intersection of King Street and Centennial Parkway South include Local Commercial, Medium Density Residential 3, Low Density Residential 2a, Mixed Use – Medium Density Pedestrian Focus, and Institutional. In addition, except for the lands on the west side of Centennial Parkway that are south of King Street, all other lands along Centennial Parkway between the Niagara Escarpment and the Queen Elizabeth Way (“QEW”) are included in either the OTSP or the CNSP. These Secondary Plans lay out the City’s general vision for the land use and scale of development that is envisioned along this corridor.

Background

25The revised proposed ZBA seeks to change the zoning from the Community Commercial (C3) Zone to a site-specific Mixed Use Medium Density Zone in order to permit the use of a multiple dwelling and permit a number of modifications to the C4 Zone. The Revised ZBA, which made further changes to zoning and standards, was marked as Exhibit 13 at the Hearing. The Appellant put this revised ZBA before the Tribunal.

PPS, GROWTH PLAN AND PLANNING ACT

26The Tribunal needs to decide whether the Proposed Development:

• has regard for matters of Provincial interest – s. 2 of the Planning Act (“Act”);

• is consistent with the Provincial Policy Statement 2020 (“PPS”) pursuant to s. 3(5) of the Act; and

• conforms with any applicable Provincial Plans pursuant to s. 3(5) of the Act, and specifically A Place to Grow, Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”).

27Mr. Johnston, the Appellant’s planning expert, opined that the PPS and the Growth Plan support the intensification of the Subject Property. Mr. Barnett, the City planning expert, opined that the Proposed Development is not consistent with the PPS and does not conform to the Growth Plan as implemented by the UHOP. Nevertheless, the Tribunal finds that, to a degree, both experts concur that some form of higher-density development is appropriate. It can be discerned that disagreement lies in the specific height, scale and density proposed.

ISSUES

28The Tribunal ascertains that although the opposing Parties’ witnesses conclude differently on the Proposed Development, the PPS, and the Growth Plan, the Parties do not seriously dispute that some form of intensification and development of the underutilized Subject Property may be undertaken. The major issues relate to conformity with the UHOP. Specifically, the level of intensification that should be allowed on the Subject Property and compatibility with adjacent properties and land uses.

City’s Position

29The City maintains that the Proposed Development’s intensification is excessive and does not conform with the UHOP policies on intensification, compatibility, and urban design. The City asserts that adverse impacts arise from the design impacting adjacent properties due to the height, massing, setbacks, and step-backs in the design.

Appellant’s Position

30The Appellant states that the Subject Property is an appropriate site for intensification due to the UHOP policies. The Proposed Development represents good design and is compatible with the neighbourhood. Its position is that there are no such adverse impacts.

The Main Issues

31Subsequent to the evidence presented and the Parties’ submissions, the main issues are:

(a) Intensification

What is the appropriate level of intensification of the Proposed Development for the Subject Property? The City takes the position that the Appellant’s proposal is too tall, too massive, and out of scale and character to everything around it, built or planned for this particular property. If implemented, it represents over-intensification and will not achieve a good planning result.

The Appellant contends that the Proposed Development is appropriate for higher-density intensification of the Subject Property within a strategic growth area. The Subject Property is in the very location under the Growth Plan for prioritizing intensification and higher densities for the purpose of making efficient use of land and infrastructure and supporting transit viability.

(b) Compatibility

Whether the Proposed Development is compatible with adjacent land uses, properties, and the neighbourhood character? The City’s position is that the Proposed Development does not appropriately consider the context or relationship with the character of the environs and the adjacent properties. Considerations of compatibility must involve more than the absence of or the mitigation of adverse impacts. The intensification policies in the UHOP speak to intensification that shall be compatible with the scale and character of the existing residential neighbourhood.

The Appellant’s position is that the Proposed Development represents residential development that is compatible with the scale and character of the surrounding residential neighbourhood and conforms to the high-density built form policies and the residential intensification policies of the UHOP. Further, there are no adverse impacts on adjacent uses or properties.

City’s Submissions

32The policies, all brought into evidence by Mr. Johnston, Ms. Whitehouse-Seely, and Mr. Barnett, provide repeated and strong direction with respect to considering and evaluating the following:

1. relationship to, integration with and sensitivity to the context and built form of the neighbourhood – it is a powerful objective by the frequency with which it is repeated across the various chapters of the UHOP and requires neighbourhood character to be carefully evaluated;

2. relationship to, integration with, and contributing to, are all active concepts which require a demonstration of nexus to everything around this proposal;

3. height, massing and scale relative to the existing built forms requires consideration of the proposed structure, not in a vacuum but in relationship to what exists and what is planned;

4. compatibility, not in isolation, not as a definition, but compatibility with the scale and character of the existing residential neighbourhood; and

5. respecting and enhancing the existing character requires a demonstration of more than saying the words of the policy. These are not neutral concepts but engage the idea of adding something more to the nature of what already exists.

33In addition, a significant emphasis in this Hearing has been placed on the fact that through OPA 167, the density cap has been removed. This, in turn, makes the remaining policies of the UHOP, including other new OPA 167 policies, even more important to be carefully considered in the analysis.

34It is submitted that the Appellant’s analysis and evidence on the character of the surrounding neighbourhood is not adequate to enable the Tribunal to evaluate the critical policies cited above. The City stated that Mr. Barnett, in his evidence, provided a fulsome review of the neighbourhood and the surrounding environs of the Subject Property. From all the evidence, the following conclusions can be made:

1. there is an extensive amount of green space and open space, including the immediate presence of a park (Battlefield Park) and the adjacent cemetery;

2. without exception, in any direction, on any corridor, the built form is low-rise or mid-rise; and

3. there is no realistic opportunity, nor evidence, of any other likely high-rise structure of this scale in the vicinity of this site; the proposal will be a stand-alone structure.

35Other more recent developments or proposed developments of low-rise to mid-rise structures include evidence of an application made directly across King Street (immediately north of the Subject Property) for a 12-storey structure.

36A recent development on King Street East, just west of the Subject Property, is a mixed-use development with a 2.5-storey structure at the street edge and a six-storey residential building set well back and behind.

37Returning to the concepts of “relationship to and integration with”, there is nothing in this proposal that demonstrates any such connection. Merely repeating the words of several policies does not demonstrate how relationship and integration are achieved. There is no meaningful greenspace or open space on the Subject Property at ground level that demonstrates any recognition of or continuation of greenspace or open space. The tallest nearby structure would be a 12-storey structure – a mid-rise structure. Rather than “relationship to or integration with”, the proposed structure pronounces itself and will become a standalone monolith. Its long walls on two sides would be more typical of a downtown high-rise structure anticipating connectivity to other existing or future intended dense structures. That cannot happen here, and the street wall will present itself as an imposing structure. Similarly, there will be no other evolution of the nearby streetscape; this proposal finishes the nearby context and makes height and scale more sensitive in the evaluation.

38The Tribunal has been provided with evidence and schedules from the UHOP that provide insight into where high-density development is intended for this vicinity of the City. The area immediately to the north (or the next major intersection at Queenston Road and Centennial Parkway) is planned as a subregional service node. It is here, anchored at the intersection of Queenston Road and Centennial Parkway, that higher order intensification is intended and planned. While it is acknowledged that there is no Secondary Plan that is applicable to the Subject Property and acknowledged that the Subject Property is within an urban corridor, on a secondary corridor and within a strategic growth area, the fact remains that the high-density type of development that is proposed with this application is exactly the type of development that has been proposed for the adjacent quadrant, centred around Queenston Road and Centennial Parkway, not the intersection of King Street and Centennial Parkway. Taller buildings and policies which speak directly to allowances for even taller buildings together with higher order light rapid transit have been planned for the vicinity, but not here. The City has put its mind to where this kind of intensification is to go.

39This is made more manifest by the overlay of the CNSP. That Secondary Plan again demonstrates an intention to develop properties in the area immediately north of the Subject Property for much more dense development. The CNSP also demonstrates how there is an intended transition moving northerly on Centennial Parkway with mid-rise development, ultimately leading to tall structures in the vicinity of Queenston Road and Centennial Parkway. In other words, the CNSP strongly signals, in conjunction with the UHOP schedule, that the very type of development proposed in this appeal is intended for another area, not distant from the Subject Property. This proposal undermines that planned outcome.

40It is of no value to the Tribunal to argue that these Secondary Plans are old or do not reflect PPS and Growth Plan policies. They are planning documents. They are Secondary Plans, and they cannot be dismissed simply because of their age. They stand as the planned intention for these areas near to and adjacent to the Subject Property.

41The UHOP policies referenced by all the planners and urban design experts in this Hearing make multiple references to character, built form, scale and massing. The proposal has numerous elements or parts which, if analyzed in isolation or without context, might be considered acceptable in exchange for intensification or are not, in and of themselves, inappropriate. It is the totality of the many parts or elements of the proposal, which, taken together, inform the overall character of the structure, its built form, its scale, and its massing. The following is an analysis of the many parts:

1. There is a lack of green space or open space on any of the four sides of this development. The King Street frontage is entirely reliant upon the City’s right of way to achieve greenspace or landscape space. More importantly, the Centennial Parkway frontage, which proposes ground-floor residential units, is almost entirely reliant upon the City’s right of way to deliver greenspace.

2. During the Hearing, there was a careful examination of how the residential units would function and how the proposed stairs up to the units would intersect with the landing and the property line. There is very little private space available for the residents of units before entering the public right of way. Added to this factor is a design proposal that would propose to have pathways leading across the public right of way to a sidewalk located at the edge of a major arterial roadway. No private sidewalk that would connect unit owners to King Street or otherwise is proposed because there is no sufficient private property space to implement this type of movement internal to the private property. It is interesting to note that Ms. Whitehouse-Seely uses a setback to the curb across the right of way and not the property line to justify the setback. The proposed planters or planter boxes for each unit tucked under overhanging balconies are not a compelling response. It is submitted that the Centennial Parkway frontage is one of the clearest examples of too little setback and not enough open space for such a location (not a downtown location) in a vicinity with open greenspaces leading into properties;

3. There are no step backs in the 20-storey tower on the King Street frontage. The renderings depict a sheer wall of 20 storeys on the King Street frontage. It is a high wall which can only serve to pronounce the height and scale of the proposed structure.

4. The King Street frontage fails the angular plane analysis which would indicate that a height in the range of some 12 storeys would be more appropriate.

42There was evidence that the City’s corridor guidelines (though dated) are intended to address issues of shadow impact. However, the angular plane analysis, while not a complete answer, is another tool that is useful for evaluating a proposal. Achieving angular planes is not only about assessing shadow impact but is also used to evaluate scale and ensure that a structure provides for and creates a sense of openness on the street.

43It is argued that under the C3 Zoning or the C4 Zoning, the setbacks proposed are equal to or greater than what is allowed as of right under these Zones. However, whether adequate setbacks are achieved relative to the zoning misses the point. The proposed setback of 1.5 m on the side lot or cemetery side of the proposal is a good example of this issue. A 1.5 m setback is proposed (the C4 Zone would require a 7.5 m setback). It is beyond contention that this reduced setback resulted in the loss of some of the existing natural vegetation that exists on the perimeter of the site and, in particular, some black walnut trees. It is a loss of opportunity to even consider retaining some of the natural vegetation and having a greater greenspace buffer than a planted row of emerald cedars, which demonstrates insufficient setback.

44The development utilizes the entire site, almost out to its property lines on four sides, for underground parking. While the six-storey podium uses a significant amount of the site with only a hard packed driveway system at the rear of the site (and a small landscaping strip), it is clear that the underground parking structure fully utilizes most of the site. It is this design, which appears to have been executed before urban design input by Ms. Whitehouse-Seely, which drives the fact that there is very little ground-level greenspace in conjunction with a six-storey podium.

45This is a large podium structure. The podium is six storeys. It is simply a large imposing structure in a location which will have no relationship to any other structure in the vicinity. It has a sheer wall of 20 storeys on the King Street frontage. It has a sheer wall of 18 storeys on the rear of the Subject Property, with adjacent zoning to the south that would allow for rear yards. The proposed balconies overhang, reducing the effective setback on the King Street and Centennial Parkway frontage. Arguably, the grid-like “skin” that is proposed for the structure only pronounces the sheer size of the structure rather than ameliorates against it.

46The structures are tall. The north tower is proposed at 65 m and the south tower at 58 m and in an environment of mid-rise buildings and existing zonings all around that contemplate heights that are much lower and in the range of 12 storeys or less.

47The corridor guidelines speak to wall length. The length of the Centennial Parkway podium is in the range of 64 m, and the King Street wall is slightly less at 55.8 m. These are solid six-storey walls without articulation or any meaningful breaking up of their presentation to the street. While it is submitted that the King Street frontage is somewhat broken up by the entrance to the structure at ground level, this does not account for the other five storeys of the podium that form a wall. The existence of an entrance is not compelling as a feature of articulation. These are long walls that create a canyon effect with no prospect of continuation.

48The density of the proposal is a staggering 969 units/ha. While it is clear that the density cap consideration has been removed from the OP policy, this is still a tool that informs and gives insight into the size and magnitude of this development. This density simply has no comparison to anything existing or planned in the vicinity. The only other meaningful measure is the still-existing policy for evaluating secondary plans for high-density developments that would contemplate densities in the range of 100 units/ha to 200 units/ha.

49The face of the building at the site triangle is about 1 m back where an exhaust and a gas meter are located.

50The podium size alone raises a concern. The tower height alone also raises a concern. Taken together, the podium and towers overwhelm. While the existing zoning might allow a five-storey building, this is a six-storey podium, 18-storey and 20-storey towers – a sum of parts.

51It is submitted that the above analysis serves to demonstrate that all of these considerations, taken as a whole, result in a development that is far too tall, massive, and out of scale for the appropriate development of this Subject Property.

Appellant’s Submissions

52On December 6, 2023, Bill 150, the Planning Statute Law Amendment Act, 2023 received royal assent enacting the Official Plan Adjustments Act, 2023. The effect of this legislation was restoring the ‘no urban boundary expansion’ growth strategy that was originally approved by City Council in June 2022.

53The result of the no urban boundary expansion is that 81% of residential intensification must be accommodated within the existing built up area over the next 30 years, whereas the current trend is at a rate of 40%.

54The City’s own Land Needs Assessment clearly articulates that under the High Forecast Scenario, which results in 48% of new units as intensification “would have significant implications for the amount, type and scope of new development that would need to occur in the community”. However, as a result of Bill 150, 81% of residential intensification must be accommodated within the existing built up area, almost twice as much as is proposed in the City’s own report, which recognized at 48% there would be significant implications.

55This report prepared for the City also noted that under the High Forecast at 48% would require:

“[A]t a size range of between 150 to 200 units 7 to 9 apartment buildings would need to be completed annually to 2051, translating to between 21 and 27 buildings under construction at all times.”

This is not the opinion of the Applicant’s witnesses but rather the opinion of the City’s own consultant in preparation of the City’s Land Needs Assessment.

56It is the evidence of Mr. Johnston that this requirement for between 21 and 27 buildings to be under construction at all times reflected a scenario where only 48% intensification was occurring as opposed to 81%, which is now mandated by the City’s decision to not expand the urban boundary. The requirement for 81% intensification within the built boundary is not in dispute between the Parties.

57What is interesting, however, is that none of the City’s witnesses alerted the Tribunal to this significant minimum intensification requirement, and interestingly, the City’s own planner could not even advise as to whether or not the construction requirement for between 21 to 27 buildings to be under construction at all times was even being met.

58What should not be in dispute is that the Subject Property is located within Hamilton’s built boundary and offers a prime candidate for residential intensification in the form of the Proposed Development that will contribute to reaching the required 81% intensification rate.

59It is submitted that this intensification requirement, together with the directives of Provincial policy (given that one of the purposes of the Act is “to provide for a land use planning system led by Provincial policy” (s. 1.1 of the Act)), is the lens by which the Tribunal should evaluate the Proposed Development vis a vis the policies of the UHOP.

60One of the other common themes among the policies cited by the City on the Issues List relates to character of the neighbourhood, particularly the built form character of the intersection, to which the Proposed Development will relate.

61Specifically, policy B.2.4.1.4 of the UHOP calls for the evaluation of the proposed residential intensification on, among other things, “the relationship of the Proposed Development to existing neighbourhood character so that it builds upon desirable established patterns and built form.”

62The character of the neighbourhood, and more specifically, the intersection that the Proposed Development will relate to, is clearly seen in the Photo Book prepared by Mr. Johnston and in the City’s Visuals. It is submitted that this is not a desirable built form and one that should be sought to be preserved. Moreover, there can be no dispute that what is proposed on the Subject Property will enhance the built form character of this intersection.

63In addition, the separation of the Proposed Development from other low-density residential dwellings, a locational attribute which was noted by the City’s Design Review Panel comments, ensures that the built form character in those areas will not be impacted by the Proposed Development in any way. To that end, the character of those areas will be preserved.

64Much of the City’s case centred around the fact that there is a cemetery abutting the Subject Property to the west and Battlefield Park to the east. However, it is submitted that with greenspaces on either side of the Subject Property, this is exactly the location for which a high-density mixed-use development should be located to allow the residents of the Proposed Development to optimize the utilization and investment in public service facilities such as Battlefield Park. This is a direct objective of the Growth Plan.

65Additionally, while the City’s case centred on the fact that the Subject Property should be used for more open space to reflect the greenspace uses to the east and the west, it was the evidence before the Tribunal that the existing zoning on the Subject Property does not support the City’s witnesses in this regard. The as of right zoning allows a front yard setback of 1.5 m, a rear yard setback of 6 m and side yard setbacks of 1.5 m, all of which are less than what is proposed by the ZBA to implement the Proposed Development. While it is acknowledged that the Proposed Development is taller than what would otherwise be proposed, the concern of the City as it relates to open space on the Subject Property has nothing to do with the proposed height of the buildings.

66The UHOP contains residential intensification policies (B.2.4.1.4 and B.2.4.2.2), that provide criteria for evaluating residential intensification developments within the built up area and Neighbourhoods designation.

67It was the evidence of Mr. Johnston and Ms. Whitehouse Seely that the Proposed Development and ZBA conform with these policies in the following ways:

1. The Proposed Development provides a built form that can exist in harmony with the existing character of the area and has no adverse impacts on surrounding uses. The Proposed Development represents compatible infill by minimizing impacts, such as shadowing, overlook, noise, lighting, and traffic on adjacent properties and the public realm. There are no overlook concerns as low-density residential uses are not permitted on adjacent properties. It is the evidence of the Applicant’s witnesses that there are no compatibility issues as there are no adverse impacts as a result of the Proposed Development;

2. The Proposed Development introduces a new dwelling type to the neighbourhood, contributing to the range of dwelling types in the area;

3. The relationship of the Proposed Development with the height, massing and scale of residential buildings has been secured through appropriate setbacks, step backs and tower separation, which are included in the amending Zoning By-law;

4. The Proposed Development represents compatible integration into the surrounding area in terms of use, scale, form, and character. The architectural style of the Proposed Development with red brick and glass facades draws from the aesthetics of the surrounding neighbourhood;

5. The Proposed Development contributes towards achieving the planned structure of the urban corridor by aligning high-density uses along arterial roads and providing transitional density to the existing uses in the area;

6. Servicing capacity is being addressed with a Holding provision in the draft Zoning By-law;

7. Green infrastructure and sustainable design will be addressed at the Site Plan stage; however, it was the evidence of Ms. Whitehouse Seely that the building ‘skin’ is an element of sustainable design;

8. The Proposed Development supports active transportation by providing over 300 bicycle parking spaces;

9. The Proposed Development contributes towards transit-supportive development as the Subject Property is currently serviced by numerous bus routes, and the Subject Property is located approximately 3 km south of the future Confederation GO Station and 1.5 km south of the future LRT station at Eastgate Mall. These existing and planned services will improve the connectivity of future residents on both a local and regional scale;

10. The Proposed Development maintains the existing lot pattern and configuration within the neighbourhood, as no new lots are proposed;

11. Public facilities and services, such as parks, exist in close proximity to the Subject Property and the Proposed Development; and

12. The Proposed Development provides sufficient amenity space for residents;

68It was the evidence of Mr. Eckler that the cultural heritage resources on the adjacent properties are not impacted by the Proposed Development. On the contrary, it was the evidence of the City that the Proposed Development contrasts with the low- to mid-rise scale of the existing neighbourhood and the extensive greenspace on the adjacent properties, and therefore it does not conform to policy 2.4.1.4 of the UHOP.

69In cross-examination, Mr. Barnett admitted that in his analysis of policy 2.4.1.4, he did not take into consideration the fact that the Subject Property is not only designated Neighbourhoods but also identified as an Urban Corridor, which encourages higher levels of intensification. He also agreed that the existing low-density development in the area, as well as the presence of green space, does not preclude high-density and that there is no policy prohibition on high-density development in proximity to low-density.

70Mr. Barnett’s analysis of the UHOP policies regarding residential intensification does not take into consideration the fact the Subject Property is also designated as a secondary corridor and that 40% of residential intensification is to occur on corridors.

71As the Subject Property is designated both Neighbourhoods and Secondary Corridors, it is submitted that the Subject Property is an appropriate location for intensification in the form of the Proposed Development.

72The essence of the City’s case with respect to policies 2.4.1.4 and 2.4.2.2 was that the scale of the building was bigger than anything else in the neighbourhood. However, considering the policies of the UHOP as a whole, together with the applicable Provincial policy and the City’s own Land Needs Study, together with the fact that there are no adverse impacts resulting from the Proposed Development, the scale of the Proposed Development does not have to be the same as is currently existing in order to be compatible. In fact, it should be expected that in order to meet the objectives of the UHOP and Provincial policy the scale of the Proposed Development should be greater than what currently exists. That, however, does not mean that it does not conform with UHOP policies 2.4.1.4 and 2.4.2.2.

73It is submitted that the evidence of Mr. Johnston and Ms. Whitehouse Seeley should be preferred with respect to the residential intensification policies of 2.4.1.4 and 2.4.2.2 of the UHOP in so far as their evidence considers the entire Municipal and Provincial policy context and balances all of the policies of the UHOP in this regard.

74In terms of the Urban Design policies in the UHOP, these policies start at B.3.3. Policy 3.3.2.3 are policies which direct urban design to foster a sense of community pride. It is submitted that these policies, to the extent that they apply to the Proposed Development, have been met. The City has a particular focus on policy 3.3.2.3 i), which speaks to public art. However, it is submitted that public art is “public” and should occur on public land to ensure that the public has access to it. The generous public right of way at the corner of King Street and Centennial Parkway could be used as a location for public art if the City so chose. The City could even use the required community benefit charge mandated by the Act to achieve this if so desired.

75It is of note that Mr. Votruba acknowledged, under cross-examination, that the City does not require public art with every development application. It is further of note that at no time in any of the comments on the application provided by the City did the City ever mention a requirement for public art.

76The City also raised issues with policy B.3.3.3.5 and suggested that the Proposed Development does not conform to these policies. However, they repeatedly misstated this policy by suggesting that this policy requires significant landscaping along the street edge. That is not a fair reading of this policy. This policy is clear:

Built form shall create comfortable pedestrian environments by:

a) locating principal façades and primary building entrances parallel to and as close to the street as possible;

77The Proposed Development has, in fact, achieved this policy as per the evidence of Mr. Johnston and Ms. Whitehouse Seeley; this is by balancing this policy with good planning to ensure that there is sufficient room for amenity space for the residential units on the ground floor. The City, however, focused on policy c) which states:

c) including a quality landscape edge along frontages where buildings are set back from the street;

78The City interpreted this policy to require greater setbacks and more of a significant landscape edge. However, the City’s interpretation ignores the words of this policy that requires a landscape edge where the building is set back.

79More importantly, the Proposed Development does provide sufficient landscaping along the Centennial Parkway frontage in the form of landscaping along the street frontages as part of the private amenity spaces, as well as proposed for the very wide City Boulevard. As noted, the setbacks from the edge of the curb in this location are 13 m to 14 m. It was the evidence of Ms. Whitehouse Seeley that these setbacks provided more than enough space for greenspace and a row of street trees and likely a double row of street trees.

80Moreover, the City cited as an example of a good landscaping edge, the Proposed Development on the north side of King Street, to the west of the Subject Property. It was acknowledged in cross examination that this development has a front yard setback of 0.5 m and the landscaping, which was used as an example of an ideal scenario, was actually located on the Municipal right of way, just as is proposed in this instance.

81The City raised concerns with policy E.3.6.7 of the UHOP and has suggested that the Proposed Development does not conform to this policy. However, the facts before the Tribunal do not support the City’s position in this regard. A plain reading of these policies in their entirety demonstrates that, on balance, the Proposed Development conforms to this policy. The City hangs its position on policy E. 3.6.7 f) which states:

f) The City may require studies, in accordance with Chapter F - Implementation Policies, completed to the satisfaction of the City, to demonstrate that the height, orientation, design and massing of a building or structure shall not:

i. unduly overshadow or block light on adjacent sensitive land uses the public realm and outdoor private amenity areas; and, (OPA 167)

ii. or result in the loss of privacy of adjacent residential uses. (OPA 167).

82It is of note that this is a “may” policy. The City did require studies as set out in this policy, in accordance with Chapter F - Implementation Policies, and the list of required studies is found in the Pre-Consultation Waiver. The Application was then deemed complete. The Proposed Development complies with this policy.

83The City also raised concerns that there was not a mix of unit sizes in the Proposed Development. However, in cross-examination, Mr. Barnett eventually conceded that the policies do not provide any guidance as to what an appropriate mix of unit sizes was, and he conceded that there was a mix of unit sizes in the Proposed Development. This UHOP policy has also been met.

84Additionally, the Proposed Development does not seek any relief for amenity, landscaping, or buffering and while not the same as or even similar to the surrounding development, is nevertheless compatible with it as it lives in harmony without causing any undue adverse impacts.

85Finally, while not an issue on the Issues List, Mr. Barnett, despite the Subject Property not being located within a Secondary Plan, adjacent Secondary Plans, including the OTSP and CNSP, spent a considerable amount of time going through the policies of the OTSP and the CNSP and opined that these policies, which do not apply to the Subject Property, should inform development that is to occur on the Subject Property. It is submitted that this entire section of Mr. Barnett’s evidence is unhelpful to the Tribunal for a number of reasons. First, these secondary plans have no more relevance to the Subject Property or the Proposed Development than any other secondary plan that exists within the City. Second, both the OTSP and the CNSP pre-date the in-force PPS and the in-force Growth Plan, and have not been updated to reflect the policy direction contained within those Provincial documents. It is quite telling that the City did not bring the date of these plans or the fact that they had not been updated to conform to the policies of the PPS or the Growth Plan to the attention of the Tribunal. It is submitted that the independent evidence of Mr. Johnston brought the non-applicability of these Secondary Plans and the age of these Secondary Plans to the attention of the Tribunal as part of his evidence as to why these Secondary Plans have no application to the ZBA that is before the Tribunal.

86Counsel submitted that the evidence of the Applicant should be preferred as it is a balanced evaluation of all the policies of the UHOP, and determines that the Proposed Development and the implementing ZBA that is before the Tribunal for approval conforms to the policies of the UHOP on balance.

THE PLANNING, URBAN DESIGN, AND HERITAGE EVIDENCE GENERALLY

87While the testimonies of Mr. Johnston, Ms. Whitehouse-Seely, and Mr. Eckler, on the one hand; and Mr. Barnett, Mr. Votruba, Ms. Kiddie, and Ms. Richer, on the other hand, were similar in certain respects, their evidence differed on many planning issues. Generally, the Appellant’s witnesses supported the Proposed Development, while the City’s witnesses opposed it.

88The Tribunal has some reservations on the particular aspect of height and massing that the Proposed Development imposed upon the area.

89Ms. Whitehouse-Seely, for the Appellant, was the only landscape witness to be qualified at the Hearing, while Ms. Kiddie was the City’s natural heritage planner who opined on trees and trees protection plan on the Subject Property. The Tribunal viewed landscaping matters on the Subject Property as appropriate at the SPA stage. Ms. Richer, who was the City’s cultural heritage witness, described the cultural heritage resources and cultural heritage landscape potential of the area.

Ms. Richer

90The Tribunal finds Ms. Richer’s opinion evidence persuasive.

91She opined that the City UHOP establishes a number of goals and policies for the conservation of the City’s cultural heritage resources organized around three key components: archaeology, built heritage, and cultural heritage landscapes in B.3.4 Cultural Heritage Resources Policies.

92The Policy Goals relating to cultural heritage resources in the UHOP are outlined in B.3.4.1.

93Protecting cultural heritage resources is important because their wise management and conservation benefit the community. This concept is supported by the UHOP, including through Policies B.3.4.2.15 regarding public awareness of cultural heritage resources.

94Like other areas of Southern Ontario, cultural heritage resources in Hamilton have been adversely affected through unsympathetic development, site alteration, or redevelopment of lands. For this reason, the City has included policies in its Urban Hamilton Official Plan (“UHOP”) requiring Cultural Heritage Impact Assessments with the submission of the Act applications where cultural heritage resources may be adversely affected through displacement or disruption.

95With regards to UHOP policies B.3.3.2.3 h) and B.3.3.5, she opined that the Proposed Development does not comply with this policy as it does not respect the views and vistas of Battlefield Park as a prominent public site in the City. Battlefield Park, located at the edge of the Niagara Escarpment, is a site of national importance, as indicated in its status as a National Historic Site of Canada, and is further subject to an Ontario Heritage Trust Heritage Easement Agreement and two Municipal Part IV designation By-laws. Various Built Heritage Resources are located on the Battlefield Park property, including Battlefield House, Nash-Jackson House, and Battlefield Monument, an important landmark. The Battlefield Park property is also identified by the City as a Cultural Heritage Landscape (“CHL”).

96UHOP policy E.3.6.7 g) requires that development within the high-density residential category, for buildings or structures higher than 12 storeys, a Visual Impact Assessment (“VIA”) to the satisfaction of the City is to be submitted. This policy ensures that the impact on public view corridors and general public views of the area of the Niagara Escarpment, waterfront, cultural heritage resources, cultural heritage landscapes, etc. be accounted for. A VIA assessing the Proposed Development is outstanding. Ms. Richer added that if the Tribunal approves the subject applications, a VIA should still be provided by the Applicant. However, she emphasized that the VIA should have been provided with the OPA application and ZBA application submission materials in order to fully assess the subject applications.

97She opined that the proposal for two towers (18-storeys and 20-storeys) and a six-storey podium does not respect the Protected Heritage Property’s (Battlefield Park) visual setting as it disrupts the view from King Street East from the west of the Protected Heritage Property. In addition, the Proposed Development will disrupt the view of the Inventoried Stoney Creek Municipal Cemetery from King Street East and Centennial Parkway from the east of the cemetery. She asserted that the continuity of the public, panoramic vista of and between the two properties along King Street East will be disrupted. A VIA (which staff do not have to assess the application) would provide an assessment of the Proposed Development from multiple key vantage points. This would have been important visual information for staff to consider.

98The Cultural Heritage Impact Assessment (“CHIA”), prepared by Architects Rasch Eckler Associates Ltd. (“AREA”) and dated December 2021, notes minor visual impacts to Battlefield Park and the Stoney Creek Municipal Cemetery. Page 46 of the CHIA (Tab 30 Exhibit 1) notes the “far distance” from the Proposed Development to the adjacent Cultural Heritage Resources (including Battlefield Park). Ms. Richer disagreed with the concept of “far distance” as sufficient context was not provided for this statement and disagreed that the adjacent Cultural Heritage Resources are not relevant to the Proposed Development at 2900 King Street East. The UHOP defines “Adjacent” as “In regard to cultural heritage and archaeology, those lands contiguous to, or located within 50 m of, a protected heritage property.”

99On Page 64 of the CHIA, in addition to stating that the Monument is located a “far distance” from the street frontages, it is noted that existing trees on the Subject Property partially limit visibility from adjacent streets. However, a comprehensive VIA report assessing views of Battlefield Park during different seasons (including winter, when deciduous trees are bare of leaves) has not been provided, and the renderings provided are insufficient for this purpose.

100UHOP policy B.3.3.5 provides the example of the panorama of the Niagara Escarpment as an existing significant vista. Ms. Richer is of the opinion that the Proposed Development will negatively impact the vista of the Niagara Escarpment at significant vantage points around King Street East and Centennial Parkway, including vantage points adjacent to the Cultural Heritage Resources, one of particular (including national) significance. As a landmark cultural heritage property in Hamilton with national significance, negative impacts on the views of the property will not only affect passing motorists momentarily and the general public but also communities with ties to the property (e.g., local residents; students visiting the property to participate in curriculum-linked educational programs; participants in the annual re-enactment of the Battle of Stoney Creek; Indigenous communities participating in events such as the narrated “Great Peace Game” of Haudenosaunee Lacrosse and the Soaring Spirit Pow-wow Festival; etc.) A comprehensive VIA has not been provided. Thus, the full impact on this existing significant vista from various key vantage points is not known.

101Ms. Richer opined that UHOP policies B.3.4.2.1 h) and B.3.4.6.2 have not been complied with. Battlefield Park is listed on the City’s Cultural Heritage Landscape (CHL) Inventory; however, it has not been assessed or evaluated as such by the City and the property was not assessed or evaluated as a CHL in the CHIA, prepared AREA dated December 2021. While the City has not yet undertaken the CHL evaluation and assessment work, it is the Proposed Development which provides the opportunity for the proponent to assess and identify the CHL as part of the required CHIA report.

102The Statement of Significance for the Battle of Stoney Creek National Historic Site of Canada may form the preliminary basis for a CHL analysis of the property in a CHIA Addendum, with AREA to identify any further Cultural Heritage Value and Character-Defining Elements/Heritage Attributes. This may lead to the identification of additional mitigation measures, e.g., interpretive elements such as future plantings, be proposed as part of the Proposed Development.

103A VIA assessing the Proposed Development is outstanding; thus, a fulsome understanding of the impacts on the CHL is not known. Analysis of a forthcoming VIA shall be provided in the CHIA Addendum.

Contextually Appropriate Development

104The UHOP policies B.3.3.2.3 c) and d) and B.3.4.1.4 are not complied with as the Proposed Development would negatively impact significant views and vistas of Battlefield Park, the Stoney Creek Municipal Cemetery, as well as the Niagara Escarpment.

105Ms. Richer stated that the Proposed Development’s six-storey podium is not an appropriate height, given the context of the site and the immediate surrounding area, including the adjacent Cultural Heritage Resources. She maintained that a lower podium of two-storeys to three-storeys is appropriate in the absence of an existing podium height in the immediate surrounding area of the other three corners of the King Street and Centennial Parkway intersection. Submission of a VIA would provide further clarity on the full impacts of the Proposed Development, including impacts of the proposed six-storey podium and the two towers (18 storeys and 20 storeys).

106She reiterated that UHOP policies B.3.4.2.1 a) and g) and E.3.6.7 g) have not been complied with as a VIA to the satisfaction of the City is outstanding.

Mr. Votruba

107Mr. Votruba concluded that the urban design issues discussed are significant concerns with the proposed building related to context, transition, character, streetscape and setbacks, step backs, build to planes and shadow impacts.

108Context - the Subject Property is located within a low-rise context and adjacent to a cemetery to the west and a Battlefield Museum and Park to the east, which are predominately green spaces. There are very few buildings taller than three storeys along Centennial Parkway South and King Street within the surrounding vicinity of the Subject Property. Those buildings that are within the surrounding context that are six-storeys or taller are setback generously from the street or do not front the street directly. The Proposed Development with tower heights of 20-storey and 18-storey is significantly beyond what currently exists and is out of context in terms of its physical size and design.

109Transition – The proposed building does not establish an appropriate transition to the surrounding context. The proposal does not transition appropriately to the lands to the south that are zoned for townhouses. The built form of the 18-storey and 20-storey towers will not transition appropriately to and do not step down in height to the adjacent low-rise context as per the build to plane recommendations in the City-Wide Corridor Planning Principles and Design Guidelines (“CDG”).

110Character – The proposed building does not establish an appropriate relationship to the character of its surroundings. The building is located adjacent to Battlefield Park to the east and a Municipal cemetery to the west, which are predominantly green spaces. There is no recognition of these in its response to the public realm. There is no provided amenity that relates to these spaces and no public realm contribution in public art, public space, or communal amenity. Moreover, the building elevations lack articulation and breaks in the façades to address the character of the street appropriately and create a pedestrian-scaled environment. Also, the length of the building face is very long (over 60 m) and does not contribute to a pedestrian-scaled environment as per the recommendations in the CDG.

111Streetscape and Setbacks – The proposed building does not provide appropriate setbacks to establish desirable streetscaping on the private side of the property line and to create a landscape buffer for the adjacent uses. The setback in front of the residential units is too deficient to provide space for landscaping to improve the quality of private residential amenity space and to contribute to improved privacy by reducing the overlook into the residential units from the public street. The floors above the ground floor overhang the setback area and inhibit sunlight and rain to access the residential private amenity areas. The setbacks to underground parking do not provide enough space to establish a landscape buffer adjacent to the cemetery or to the lands to the south that are zoned for townhouses.

112Step backs and Build to Planes – The proposed building lacks appropriate step backs between the podium levels and tower levels above to establish an appropriate relationship to the street. As well, the heights of the towers do not transition to the recommended build to plane as per the CDG and do not establish an appropriate relationship to the width of the street boulevard. In this regard, the towers are significantly too tall and out of context.

113Shadow Impacts – Shadow impacts have been demonstrated to impact both the building’s surrounding context as well as community amenity areas. Significant shadows are cast on the public right of way, causing shadows on an important pedestrian corridor along King Street. The proposed rooftop amenity areas do not receive adequate sun light to fulfill activities of daily living that require access to sunlight. The private amenity spaces for the ground floor residential units are overhung by the building above and will not have adequate access to sunlight.

Provincial Policy Statement 2020 (PPS)

Mr. Barnett

114Mr. Barnett opined as follows. The policies of the PPS, including 1.1.1 g), 1.1.3.2 b), and 1.1.3.3, require that land use patterns and densities are appropriate for infrastructure capacity. There are existing infrastructure challenges in the area in order to ensure that adequate servicing is available to service the Proposed Development. As per the agreed statement of facts from a civil engineering perspective “H” holding provision will be established to ensure that the infrastructure challenges are addressed.

115The policies of the PPS, including B.1.1.3.3, direct Planning Authorities to identify appropriate locations and promote opportunities for transit-supportive development, accommodate a significant supply and range of housing options through intensification and redevelopment where this can be accommodated taking into account existing building stock or areas, and the availability of existing or planned infrastructure and public service facilities.

116The City, through the adoption of the UHOP and through Secondary Plans, establishes appropriate locations for intensification, development standards, and policies to protect cultural heritage properties, requires that development has the appropriate infrastructure to support the development, and prepares for the impacts of a changing climate. It is Mr. Barnett’s opinion that the Proposed Development does not conform to the UHOP and does not represent an appropriate location for the scale of development proposed.

117The policies of the PPS, including 1.1.3.2 c) and 1.8.1 f), require planning authorities to promote design and orientation, which maximizes energy efficiency and conservation, and considers the mitigating effects of vegetation and green infrastructure. A detailed evaluation of the measures that will maximize energy efficiency and conservation and inclusion of green infrastructure has not been provided with respect to the Proposed Development. In respect to the mitigating effect of vegetation and maximizing vegetation within settlement areas, Mr. Barnett defers to Ms. Kiddie’s opinion related to the matter.

118As per policy 2.6.3, development and site alterations on adjacent lands to protected heritage properties are not permitted, except where the Proposed Development and site alteration have been evaluated and demonstrate that the heritage attributes will be conserved. Ms. Richer’s opinion is adopted as related to this matter.

119Therefore, Mr. Barnett opined that the Proposed Development is not consistent with the PPS, as the Proposed Development is not consistent with the policies the PPS as implemented by the UHOP.

The Growth Plan for the Greater Golden Horseshoe 2020 (Growth Plan)

120The Growth Plan policy 2.2.1.3 states that upper- and single-tier Municipalities will undertake integrated planning to manage forecasted growth to the horizon of this Plan, which will:

a) Establish a hierarchy of settlement areas, and of areas within settlement areas, in accordance with policy 2.2.1.2.

b) Be supported by planning for infrastructure and public service facilities by considering the full life cycle cost of these assets and developing options to pay for these costs over the long term;

c) Provide direction for an urban form that will optimize infrastructure, particularly along transit and transportation corridors, to support the achievement of complete communities through a more compact built form; and

e) Be implemented through a Municipal comprehensive review and, where applicable, include direction to lower-tier Municipalities.

121The policies of the Growth Plan focus growth to settlement areas, with the majority of growth being directed to the built boundary, which has access to adequate Municipal infrastructure. The Subject Property is within a settlement area and is in the built boundary.

122There are existing infrastructure challenges in the area to ensure that adequate servicing is available to service the Proposed Development. As per the agreed statement of facts from a civil engineering perspective, an “H” holding provision will be established to ensure that the infrastructure challenges are addressed.

123The policies of the Growth Plan require Municipalities to undertake integrated planning to manage forecasted growth. The City manages focused growth through the adoption of the UHOP and Secondary Plans, which set out the City’s vision for implementing the policies of the Growth Plan. Mr. Barnett opined that the Proposed Development does not conform to the UHOP and does not represent an appropriate location for the scale of development proposed. The proposal does not conform to the policies of the Growth Plan as the Proposed Development does not conform to the policies of the Growth Plan as implemented by the UHOP.

ON UHOP

124Mr. Barnett gave a comprehensive opinion on the relevant policies and sections of the UHOP and concluded that the Proposed Development and ZBA do not conform to the UHOP, do not represent good planning and are not in the public interest.

ANALYSIS

125The existence of a protected heritage property/cultural heritage resource to the east of the Subject Property (Battlefield Park, which extends to a backdrop of the Niagara Escarpment) and the Municipal cemetery to the west of the Subject Property, featured prominently at the Hearing. Both these adjacent properties represent open green spaces that the City concedes will not see any residential or any development going forward.

126The property to the south of the Subject Property is zoned for townhouse development with low- to mid-rise built form. To the northwest of the Subject Property, there are some 2.5-storey shops, a six-storey Townhouse complex, and a planned development of a mid-rise 12-storey building to the north of the Subject Property. The existing land use on the direct north side is a service station.

127The City has reiterated that the higher-density tall-building developments are further north along the Centennial Parkway, north of Queenston Road, towards the higher order transit area and beyond. The City’s vision for more intense development is towards the north of the Subject Property, while the Subject Property is meant for mid-rise development.

OPA 167

128The Appellant places significant reliance upon OPA 167 to maintain that no OP amendment is needed. This is on the basis that OPA 167 removed the density cap and therefore, there was no need for an OPA.

129The Appellant cannot be allowed to pick and choose which OPA 167 amendments it wishes to rely upon. As a starting point, this would neither be logical nor consistent in approach.

130More importantly, it is clear that the OPA 167 amendments came as a package of policy amendments. While removing the density cap, other OPA 167 amendments are clearly intended to ensure that a more detailed or refined lens is considered for evaluating higher-density applications. For example, many of the policies referenced in the witness statements and the evidence, with respect to OPA 167, add additional layers of consideration or analysis to the evaluation of a proposal. See, for example, policies E.3.6.7 b) and E.3.6.7 f)(i) and (ii) of the UHOP as more detailed policy considerations, especially with respect to matters of design, privacy and light.

131OPA 167 is not a site-specific amendment; it is City-wide, enacted during the tenure of this application. Mr. Johnston placed significant weight on the history of the City’s intensification debate and the City’s desire to provide intensification without expansion of the urban boundary. It is clear that OPA 167 was an outcome of that debate (and a debate about which the Appellant, through its consultants, was closely following, given the degree of detail that Mr. Johnston placed upon the City’s discussion).

132The Appellant’s submissions on the Clergy principle in reference to the Tribunal’s decision in the Sun Life Assurance Co. of Canada, Re 2007 CarswellOnt 8003 (“Sun Life”) decision is not a complete picture. Since the Sun Life decision, there has been further significant jurisprudence on this issue culminating in the recent Ontario Divisional Court Decision in Masters v. Claremont Development Corporation, 2021 ONSC 331. The analysis is extensive, but in particular, begins with a detailed review of several decisions in paragraph 28 of the Masters’ decision. In paragraphs 30 and 31, the Court noted the following in reference to the earlier decision in James Dick Construction Ltd. V. Caledon (Town):

30. In explaining this determination, it made the following observations:

However, it must also be acknowledged that the Clergy principle is not a law or an inviolate rule. It is a practice meant to promote fairness in the planning process.

...the [Clergy]case stands for the proposition that the Board has the authority to formulate a procedural policy such as the Clergy principle and that it is uniquely equipped to judge those circumstances in which it is appropriate to apply it and, by corollary, when it is appropriate to set it aside.

31. What these statements confirm is the understanding that the Clergy principle is not a legal principle to be interpreted or applied by the Court. It is a procedural policy developed by the Ontario Municipal Board and the Local Planning Appeal Tribunal which, as matters stand today, is for the latter to apply. In the absence of any procedural concerns there is nothing for the Court to consider, at least insofar as the application of the policy is concerned. (Masters v. Claremont Development Corporation, 2021 ONSC 331).

133From this detailed analysis, it can be concluded that the Clergy principle is a flexible tool to be utilized by the Tribunal in determining whether evolving or new policy direction should be applied to an application that pre-dated the policy. In this case, there can be no issue of procedural fairness or disadvantage to the Appellant as the Appellant relies upon one of the critical components of OPA 167 (the removal of the density cap).

134In addition, the language of Bill 150 under subsection 3(2) is dispositive of this issue. Subsection 3(1) and 3(2) of Bill 150 provide as follows:

Subsequent changes to official plans

3 (1) For greater certainty, an official plan approved under subsection 1 (2), an amendment to an official plan approved under that subsection or an official plan as amended by an amendment approved under that subsection may be subsequently amended or repealed in accordance with the Planning Act.

Conformity with official plan as approved

(2) Any decision of a municipality or the Ontario Land Tribunal made under the Planning Act, as well as any by-law passed or public work undertaken by a municipality, on or after the date on which the approval of an official plan or an amendment to an official plan is deemed to have been given under subsection 1 (3) must conform with the official plan, as approved or amended, while that approval is in effect.

135Subsection 1(3) of Bill 150 specifically references the approval of OPA 167 by the City on November 4, 2022. The language of subsection 3(2) is clear and provides that any decision of the Tribunal made on or after the date on which the approval of an OP or an Amendment to an OP is deemed to have been given (November 4, 2022) must conform with the OP as approved or amended, while that approval is in effect. The approval is in effect. Therefore, the Tribunal’s Decision must conform to OPA 167.

136The Tribunal finds that the effect of Bill 150 and the approval of OPA 167 is retroactive. The UHOP, as amended by the OPA 167, applies to the ZBA. The Clergy principle, which is a procedural policy of the Tribunal, is ousted in this instance. By subsection 3(2) of Bill 150, the Tribunal’s Decision as regards the ZBA must conform to OPA 167 and the UHOP as amended.

INTENSIFICATION

137The intensification of development and the intensification of a site, supported by Provincial policy, cannot occur to the detriment of, and without conformity to, Municipal-level planning policies relating to intensification, compatibility of development and urban design.

Analysis of the UHOP Intensification Policies.

138The existing land use designation of the Subject Property is Neighbourhoods, which permits the use of a multiple dwelling and permits local commercial uses as per policies E.3.6.2 and E.3.6.3 respectively.

139It is noted that for high-density residential areas, a residential density of greater than 100 units/ha and not greater than 200 units/ha would be used as part of the preparation of Secondary Plans, Special Policy Areas, Infrastructure Master Plans and Community Plans. It is noted that the density of the Proposed Development would be approximately 969 units/ha. Therefore, it is noted that the density of the Proposed Development would exceed the maximum density that would be used in the preparation of Secondary Plans by approximately 769 units/ha.

140Policy E.3.6.7 d) i) requires that development provide adequate landscaping, amenity features and buffering. The limited on-site at-grade landscaping proposed for the development stands in sharp contrast to the abundant landscaping that exists on the properties to the east and west.

141Policy E.3.6.7 d) ii) requires that development be compatible with existing and future uses in terms of height, massing and arrangement of buildings. As previously outlined, the surrounding area is dominated by low-rise built forms, which include some mid-rise built forms. The lands to the east and west consist of uses that maintain considerable greenspace. The future built form, as envisioned in the adjacent OTSP and in the applicable zoning of the surrounding area, lays out a vision of a low- to mid-rise built form for the area. The proposed tall building with tower heights of 20 and 18 storeys stands in sharp contrast to what is existing and proposed for the neighbourhood. The proposed development seeks to establish a six-storey podium, which represents a podium massing that does not reflect the scale of development along either King Street or Centennial Parkway South which are dominated by low-rise built forms. In addition, no step back is provided between the six-storey podium and the proposed 20-storey tower. The building massing is not being broken up which further compounds the contrast between the proposed building mass and the scale of the area. The design of the proposed building seeks to establish a development that occupies the majority of the site, thereby leaving little space on-site for landscaping, which stands in sharp contrast to the extensive greenspace that exists on the adjacent lands to the east and west.

142The height, massing, and arrangement of the building is reflective of a built form that would more generally reflect the height, massing, and arrangement of development in and around the Downtown of Hamilton rather than the lower scale suburban context that exists and is envisioned for the area. Therefore, the development is not compatible with the existing and future uses in terms of height, massing and arrangement of buildings.

143Policy E.3.6.7 d) iv) requires that development provide for a mix of unit sizes to accommodate a range of household sizes and income levels. For the proposed 564 dwelling units, the predominant unit size proposed is one-bedroom units, which comprise approximately 81.9% of the Proposed Development. Approximately 17% of the units are two-bedroom units, and only 1.1% are three-bedroom units. The scope of the proposed unit breakdown is not consistent with providing for a mix of unit sizes to accommodate a range of household sizes and income levels.

144Policy E.3.6.7 f) requires that development demonstrate that the height, orientation, design, and massing of a building or structure will not unduly overshadow or block light on the adjacent sensitive land use, the public realm, or outdoor private amenity areas. The shadow study submitted with the application does not correctly identify the shadows based on the as of right conditions. In addition, the shadow study submitted does not identify the shadowing that is occurring on the outdoor amenity areas on-site and therefore the extent of shadow impacts on the on-site private amenity areas cannot be determined. Thus, it has not been demonstrated that the height, orientation, design, and massing of the proposed building will not unduly overshadow or block light to the adjacent sensitive land uses, the public realm or outdoor private amenity areas.

145Policy E.3.6.7 g) requires that the orientation, design and massing of a building or structure higher than 12 storeys take into account the impact on public view corridors and general public views of the Niagara Escarpment, cultural heritage resources, amongst others, through the submission of a VIA. A VIA has not been submitted for review, and therefore, an evaluation on the impact of the development on public view corridors and general public views of the Niagara Escarpment, and cultural heritage resources such as Battlefield Park and the Battlefield Monument have not been evaluated. As such, the Proposed Development has not demonstrated conformity with policy E.3.6.7 g).

146Policy E.3.6.7 states:

Development within the high density residential category shall be evaluated on the basis of the following criteria:

a) Development should have direct access to a collector or major or minor arterial road. If direct access to such a road is not possible, the development may be permitted indirect access to a collector or major or minor arterial roads from a local road upon which only a small number of low density residential dwellings are fronting on the local road.

b) Multiple dwellings greater than 12 storeys shall not generally be permitted immediately adjacent to low density residential uses. A separation distance shall generally be required and may be in the form of a suitable intervening land use, such as a medium density residential use. Where such separation cannot be achieved, transition features such as effective screening, progressive building step backs, and/or other design features shall be incorporated into the design of the high density development to mitigate adverse impact on adjacent low profile residential uses.

c) High profile development may be considered appropriate, subject to the other policies of this Plan, where it would result in the preservation of natural heritage system features or public view corridors which may otherwise be compromised by more dispersed, lower profile development.

d) Development shall:

i) provide adequate landscaping, amenity features, on-site parking, and buffering where required;

ii) be compatible with existing and future uses in the surrounding area in terms of heights, massing, and an arrangement of buildings and structures;

iii) provide adequate access to the property, designed to minimize conflicts between traffic and pedestrians both on-site and on surrounding streets;

iv) provide for a mix of unit sizes to accommodate a range of household sizes and income levels, to be implemented through the Zoning By-law; and (OPA 167)

v) incorporate sustainable building and design principles including but not limited to use of locally sourced and/or recycled materials, water conservation and energy efficiently techniques and low impact development approaches. (OPA 167)

e) In accordance with the policies of Section B.3.3 Urban Design Policies, development shall contribute to an attractive public realm by minimizing the view of the following elements from the abutting public streets (excluding public alleys):

i) surface parking areas;

ii) parking structures;

iii) utility and service structures such as garbage enclosures; and

iv) expanses of blank walls.

f) The City may require studies, in accordance with Chapter F - Implementation Policies, completed to the satisfaction of the City, to demonstrate that the height, orientation, design and massing of a building or structure shall not:

i) Unduly overshadow or block light on adjacent sensitive land uses the public realm and outdoor private amenity areas; and, (OPA 167)

ii) Or result in the loss of privacy of adjacent residential uses. (OPA 167)

g) The orientation, design, and massing of a building or structure higher than 12 storeys shall take into account the impact on public view corridors and general public views of the area of the Niagara Escarpment, waterfront, cultural heritage resources, cultural heritage landscapes, and other parts of the City as identified through secondary plans or other studies, through the submission of a Visual Impact Assessment to the satisfaction of the City (OPA 167).

147The Tribunal finds that the Proposed Development does not conform to the aforementioned sections in particular s.3.6.7 b), c), d), f), g) of the UHOP. There is no transition measure to mitigate the massing of the building through appropriate setbacks and step backs; it does not take into account the impact on public view corridors and general public views of the Niagara Escarpment, the cultural heritage resources, and cultural heritage landscapes. The proposal does not follow the CDG, and the proposed scale, height and massing of development sharply contrast with the existing lower-scale development in the area and result in adverse impacts.

Appropriate Degree of Intensification

148The Proposed Development will have a density of 969 units/ha. The City is greatly concerned with the proposed level of intensification. Mr. Barnett’s evidence pointed to this level of intensification as inappropriate. As the area is associated with lower residential densities, he views the proposed scale of intensification as incompatible with the lower-scale medium density in the area.

149Whether the proposed level of intensification gives rise to adverse impacts or problems of incompatibility, those additional policies that address compatibility need to be considered as are matters respecting conformity to urban design guidelines and policies.

COMPATIBILITY

Intensification and Compatibility

150The definition of compatibility has been cited frequently in this Hearing.

151UHOP defines compatibility/compatible 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”.

152City submits that Mr. Johnston’s (the Appellant’s Planner) interpretation of the definition is that “mutually tolerant and capable of existing together in harmony means there are no adverse impacts created by the introduction of the new use”. Firstly, the extension of that interpretation is that any land uses, even land uses which would never be accepted as planning outcomes, such as an industrial use next to single-family housing, would be compatible if you could mitigate or ensure no adverse impact. Prima facie, that would never be considered as good land use planning.

153Considerations of compatibility must involve more than the absence of or the mitigation of adverse impacts. That is because the analysis is always more complex. Policies which address compatibility, in most cases, establish linkages to other concepts or modifiers – compatibility with something. For example, Policy B.2.4.1.4 d) contemplates “compatible integration of the Proposed Development with the surrounding area.” Accordingly, compatibility is not considered in a vacuum but rather considered in the context of a relationship to that which is around it. It engages, again, the importance of context or relationship with the character of the surrounding environs. As another example, Policy E.3.2.4 of the UHOP speaks to intensification that shall be compatible with the scale and character of the existing residential neighbourhood. Once again, compatibility is to be evaluated in the context of a relationship or nexus to an additional consideration.

154The City’s witness, Mr. Votruba, dealt with this issue in his evidence and talked about the connectivity of the proposal with the scale and rhythm of the context of the neighbourhood in assessing compatibility.

155The Appellant’s analysis and interpretation is too narrow and leaves the proposal in a vacuum – in a silo – without due consideration for context.

156The words in the OP are not complicated nor do the planners hold a monopoly on what they mean. There are numerous policy directions in the UHOP that require a proposal to be evaluated in terms of whether it enhances and respects the character, scale, and built form nature of the community. For example, see policies B.3.3.2.3 a) and E.1.0 f). The proposal would result in the development of an under-utilized property; that is obvious but not much enhancement. These words must mean that the results of development would knit into the community fabric and make it better as part of the community. It is a standalone, one-off high-rise structure which will not be part of anything else or fit into any existing streetscape as an addition to it or provide the foundation for the development of a more interesting streetscape.

157Indeed, some of the evidence of Ms. Whitehouse-Seely, especially in her Witness Statement, portends a very different outcome. In her Witness Statement (upon which Ms. Whitehouse-Seely was cross-examined), she noted that this structure would provide an important anchor at this intersection. She states as follows:

The proposed structure itself provides an identifiable feature at the location that, while being a change to current visual character of the property, does not visually overburden it. A component of the design that helps to achieve this is the inclusion of landscaped, sodded boulevards which is a streetscape condition often found in residential areas.…This offers an enhanced pedestrian experience for existing and new residents of the area, as well as a visually interesting backdrop to passing vehicles. As one drives north down Centennial Parkway a view of the Cityscape is offered. The addition of this building provides a visual anchor to the intersection, which could be the destination, or a milestone. …

158The assertion is more akin to the objective of establishing a landmark structure, which is the direct antithesis of the policy direction. While there is no secondary plan in place for this corner and while numerous policies demonstrate the need for intensification of this corner, there is no policy or planning context that would promote this corner as a landmark opportunity. The outcome of this development will achieve exactly that.

159To consider compatibility, it requires the Proposed Development not to have any “unacceptable adverse impact” on the adjacent lands or coexist in harmony within the area.

Unacceptable Adverse Impact

160To assess the compatibility of the Proposed Development, the Tribunal has considered the following matters:

1. the Proposed Development design sensitivity to the existing neighbourhood character;

2. the appropriate transition to scale to the surrounding uses;

3. the appropriateness of the proposed scale, density and height for this location; and

4. the possibility of privacy, overlook, shadows and public realm view vista issues.

Relationship with Existing Neighbourhood Area

161The Proposed Development is proposing a built form that has a height and massing that dramatically differs from the existing and proposed built form of the area. The proposed 20-storey tall building represents an abrupt change in scale in comparison to the lands to the east and west. The scale of the development has the potential to create overview impacts on future low-density development that is permitted on the lands to the south of the Subject Property. The Applicant has not demonstrated that the Proposed Development will not have an adverse shadow impact on the public realm. Therefore, the proposal has not demonstrated that the proposed building height will follow s. 4.3 of the CDG.

162The angular planes provided with the application taken from 80% of the King Street East right of way, identify that approximately half the building massing of the proposed 20-storey tower will encroach into the angular plane.

163The angular plane taken from 80% of the Centennial Parkway South right of way reflects the angular plane of the 18-storey tower, which is both lower in height and setback further from the street line than that of the 20-storey tower, would also encroach into the angular plane.

164This proposal represents a building massing that is not in keeping with the character of the neighbourhood. The proposal seeks to establish a building massing with substantial encroachments into the angular plane in an area where the existing and envisioned built form would have limited or no such encroachments.

165The Applicant has not demonstrated that the Proposed Development will not have an adverse shadow impact on the public realm. Thus, the proposal has not demonstrated that the proposed building height related to street width is appropriate and will follow s. 4.3.2 of the CDG.

166The Site Plan concept plan provided with the application appears to show that the length of the six-storey building base exceeds the 60 m length provision.

167Given that the existing context of the area consists of predominately low-rise development, a six-storey building base with a long building length would stand in sharp contrast to the area and has the “potential” to create a canyon effect along the street, and limit sun access reaching the street. The Applicant has not demonstrated that the Proposed Development will not have an adverse shadow impact on the public realm. The proposal has not demonstrated that it meets s. 4.9 of the CDG.

168The Tribunal agrees with the City’s planning and urban design experts that the Proposed Development does not meet the CDG. There is a lack of transition to adjacent properties, existing or planned.

Overall Compatibility/Findings

169Both Planners reached different conclusions on whether the policies of the PPS and Growth Plan were met and disagreed on the height, massing and density proposed for the development.

170The Tribunal is persuaded by the City's expert witnesses. There are no buildings taller than six storeys that exist in the area. North, across King Street, there is a residential building of six stories and a commercial 2.5-storey building. There is also a proposed development of a 12-storey residential building.

171East of the Subject Property, is Battlefield Park Museum and Monument House, a Cultural Heritage Resource [a protected heritage property, no tall building there, but a monument and a heritage building]. South of the Subject Property is the RT 10 Zone vacant land, where a future townhouse development will be developable. On the west side of the Subject Property is the Municipal cemetery. The City has indicated that the historical value and heritage site context in this vicinity will not see tall buildings development in the foreseeable future.

172The 18-storeys and 20-storeys will stand out like twin peaks in the neighbourhood area. The Tribunal surmised that the City is not against optimization, but maximization is not favoured. The Subject Property’s “as a right height” is 14 m. The proposed building is 65 m tall at its highest, which will be jarring.

173The City’s plan is for higher buildings towards the north of Centennial Parkway and Queenston Road. This Subject Property, in this neighbourhood, is not the focus of high-density development.

174It is a fact that the City did not designate this site to the CNSP or to the OTSP, but that does not detract from the City’s stated vision and focus on where taller buildings and density were to occur in the CNSP.

175On the measure of the VIA, this was requested by the City from the very start, and it was requested in the formal consultation application. However, that was either inadvertently or was deliberately ignored by the Applicant/Appellant.

176In the UHOP, through the OPA 167, such view and vista requirements are required through a VIA study. Particularly, when a cultural heritage resource and inventoried cultural heritage landscape is involved. As for the OPA 167, the Applicant took advantage of its removal of density requirements and withdrew its OPA application but stopped short of embracing all the OPA 167 provisions. The City’s vision for the City, as amended by the OPA 167, should likewise be embraced by the Applicant.

177The Applicant’s argument against the VIA, as not being an original requirement or waived, was on the facts disingenuous. That requirement exists in the Formal Consultation application. Although the Applicant claims that its ZBA application was deemed complete before OPA 167 took effect, these after-the-fact assertions must give way to current conditions and best practices.

178The existing view from the cemetery, Battlefield Park, the streets and intersections vantage points, and the existing view vista to the Niagara Escarpment from the adjacent lands need to be considered.

179By definition, the City’s Battlefield Park is adjacent to the Subject Property as it is 50 m proximate to it. The protection of the view corridor is provided for in the UHOP, in particular s.3.6.7 g), where a VIA shall be provided to the satisfaction of the City in the evaluation of the application.

180The actual view impact when one stands at Battlefield Park: the impact of a six-storey building is surely different from the impact of an 18-storey or a 20-storey building. The height difference will be exacerbated by the surrounding low-rise buildings, which will be dwarfed by a large, imposing twin high-rise towers building on the Subject Property.

181There was no contention that the Subject Property is suitable for intensification and development. The issue is how much density scale and development is appropriate for the Subject Property. The City views that the Subject Property should have a lower density and scale (at most around 200 units/ha). For the Applicant, a higher or the highest density possible per hectare (in this instance, 969 units/ha).

182The Tribunal's role is to manage the public and private interests that are in dispute. For both sides, the PPS and the Growth Plan policies are navigated to give different conclusions. Nevertheless, the Tribunal discerns that neither side disputes that this is an underutilized property, and some development is possible, but how much is appropriate?

183What level of optimal intensification is appropriate as per the policies in the PPS and Growth Plan? Optimization is not maximization pursuant to the PPS and Growth Plan. Planning is generally a top-down process, with Provincial policies governing the necessary development objectives. Municipal OP governs the vision and direction of a particular Municipality and of which it targets.

184Section 1.1 of the Act states the purposes of the Act to be:

b) to provide for a land use planning system led by Provincial policy;

c) to integrate matters of Provincial interest in Provincial and Municipal planning decisions;

e) to encourage cooperation and coordination among various interests; and

f) to recognize the decision making authority and accountability of Municipal councils in planning.

185The Parties by Bill 150 and OPA 167 are obligated to comply with the provisions of the UHOP and OPA 167. The UHOP fulfils the purposes of the Act, in particular, the integration of Provincial planning interest with the Municipal planning decisions.

186The Tribunal applies OPA 167, as it takes the Clergy principle out of contention.

187The core issues have been identified in this neighbourhood for this development. The definition of compatibility is given in UHOP. It is specifically with this question of compatibility the Tribunal will need to evaluate this proposal clearly and guided by the definition of compatibility in this case.

188The OPA 167 and the UHOP are not backward-looking but are essentially forward-looking, that is, looking to build where the focus is on density and height at the right places for the density scale and height, all through the City’s vision. The Tribunal views that the Subject Property is not for the Proposed Development which maximizes instead of optimizing the Subject Property.

189Mr. Barnett stated that “holding provisions” will be established to ensure that the infrastructure challenges of civil engineering perspectives are added. This underscores the importance of establishing the civil engineering infrastructure for this development of this size and density. He stressed that the existing character of the area is material in the UHOP E.3.2.4. He emphasized that this residential development is evaluated on the basis of criteria found in E.3.6.7.

190OPA 167 added to the policy in E 3.6.7 (paraphrasing):

(d) Development shall be

(ii) compatible with heights massing;

(iv) provide a mix of unit sizes;(OPA 167)

(v) incorporates sustainable building design principles;(OPA 167)

(f) The City may require studies to be completed to its satisfaction to demonstrate that height, orientation, design and massing shall not:

(i) unduly overshadow or block light on adjacent sensitive land uses, the public realm (OPA 167) and

(ii) or result in loss of privacy of adjacent residential uses; (OPA 167)

(g) The orientation design and massing of a building higher than 12 storeys shall take into account the impact on public view corridors and general public views of the area of the Niagara escarpment, cultural heritage resources, and cultural heritage landscape through the submission of a View Impact Assessment) to the satisfaction of the City. (OPA 167).

The Tribunal opines that the VIA requirement authorizes the City to require this VIA from the Applicant. Despite, the Applicant’s protestations, the effect of OPA 167 makes this a requirement that needs to be satisfied by the Applicant.

191Mr. Barnett noted that in E.4.6.8 of the UHOP, the height of up to 12 storeys may be permitted if the Applicant demonstrates

(a) a development mix of unit sizes;

(b) incorporates sustainable building and design principles;

(c) no adverse shadows impact etc.;

(d) the building progressively stepped back for the neighbourhood and compliance with the angular plane; and

(e) the building stepped back from the street to minimize the height appearance.

Mr. Barnett is of the opinion that all the above were not complied with and that no tall buildings are envisioned in this particular neighbourhood area. Mr. Votruba’s urban design opinion supported Mr. Barnett’s opinion on the design principles.

192Both cultural heritage experts agreed that a VIA should be a Site Plan condition. However, the SPA was not dealt with at the Hearing.

Compatibility

193The Tribunal will deal with the compatibility analysis. The definition in UHOP section G, emphasized the need for harmony and the lack of adverse impact without the need for sameness or similarity.

194The Tribunal states that an evaluation of compatibility must be moored within the context of the neighbourhood. There will be various stages in the evaluation process. The questions to be asked would be: what is the existing neighbourhood built form? What is the existing character and, what is a planned character for the built form? What constitutes harmony or harmonization? What are the possible potential adverse impacts? How do the UHOP requirements fit in with the definition of character and compatibility? It is necessary to decide how this tall structure will engage with an area of significant cultural heritage visual view corridor context. Therefore, it is vital for a VIA to be provided to give additional input on the context.

195The Tribunal finds that harmony with the surroundings is a necessary element. Adverse impacts can be visual adverse impacts as it relates to the actual landscape of the area.

196Compatibility has three elements how the elements interact with the area context without adverse impacts. All three elements are to be evaluated. They are:

(1) Character of the area;

(2) Harmony with that character, (which is tied to the social aesthetic/built form character of the neighbourhood area); and

(3) Adverse impacts (impacts could be to the community, the visual corridor, the social fabric, their overlook and the privacy concerns, shadows, noise, wind etc.).

The Tribunal views that there should not be unacceptable impactful harm to any of these aspects of the community.

197The Applicant takes hold of OPA 167 and agrees that the density cap has been removed, thus dropping the OPA appeal. The Applicant cites Clergy to avoid other aspects of the UHOP as amended by OPA 167. As a matter of fairness, the Applicant must be covered with all aspects and layers of UHOP policies and by the policies after OPA 167 amended the UHOP. As noted, in this instance, the Clergy principle has been legislated out.

Analysis of the compatibility definition and the elements in that definition.

198The City's vision is for differing densities for different areas. The OTSP and the CNSP contemplate different densities. Specifically, CNSP regulates the area along Centennial Parkway and beyond the intersection with Queenston Road. Densities will be in the region of 100 to 200 units/ha in areas of focus by the City. Here, this proposal is to add a density of 969 units/ha, which represents quite a high density as is proposed.

199The Proposed Development may affect the specific view corridor of the area. Thus, the City will require a VIA to assess the visual impact of the proposal. The City’s formal consultation application has requested for a VIA, although in this particular instance, the Applicant has neglected it.

200The Tribunal notes that a VIA has not been provided. It matters to the Tribunal that a VIA is provided. It needs to be available for determination of the impact on the view vista landscape of the surroundings and of the particular area where the proposal is to land and to be executed. This proposal proposed a 65 m height, which is well above the “as of right” height of 14 m for the C3 Zone that is relevant at this time. Although the Applicant is amending the C4 Zone, it will be making changes to the zoning provisions and will not be following the requirements of the C4 Zone strictly. The City’s concerns are that even the C4 Zone as of right requirements or provisions are also not complied with.

201The Tribunal is tasked to imagine, without a VIA, [although the Applicant is insistent that a VIA is not required], how a very tall 20-storey building and 18-storey building, which is also massive, that is built almost right to the edges of the sides of the property lines, will affect the neighbourhood. It is unwieldy, without the VIA, for the Tribunal to determine the true extent of the impact of the view on the view corridors and the public realm. The Tribunal acknowledges that such a VIA is required in this matter under the provisions of the UHOP as amended by OPA 167. In determining and evaluating this matter, the Tribunal lacks that necessary document as required in s.3.6.7 g) as amended by the OPA 167.

202At root, the view and visual impacts are to be looked at, especially when there is a cultural heritage resource, Battlefield Park, in the vicinity just across the road and east of the Subject Property. That is an adjacent property to the Subject Property. There is also potential for this historically significant cultural heritage resource to be additionally designated as a cultural heritage landscape (it is on the City’s inventory). The potential cultural heritage landscape view and the public view corridor to the Niagara Escarpment need to be evaluated in this application for conservation by the City, for which a VIA is required under the UHOP.

203Compatibility also requires harmonization with the existing uses. Compatibility is tethered to the neighbourhood context and cannot be separated from it. The Tribunal disagrees with the Applicant that the context of the low-rise/mid-rise neighbourhood built form character can be ignored. The dropping onto the Subject Property, a building which is on paper almost five times the “as of right height dimensions,” does not exist in harmony with the built forms that exist in the area. The question of mutual tolerance and harmony can be answered by taking into consideration the VIA. Whether such a building has adverse impacts, if any, will be imposed upon the surroundings and neighbourhood area. The Tribunal’s finding is that, on existing facts and evidence, the proposal is not compatible with the character of the area.

204Despite the Applicant’s insistence that there are no adverse impacts on the cultural heritage resource to the east, the Tribunal is of the view that any visual impairment of the view corridor and also the visual impairment of a potential cultural heritage landscape and cultural heritage resource is an adverse impact. For that purpose, Miss Richer’s clear account as the City’s cultural heritage witness has persuaded the Tribunal that a VIA study is a necessary assignment that needs to be completed. For the Tribunal, this matter is of significance as OPA 167 has amended the UHOP to clearly require a VIA to evaluate impacts, imposed by the tall structures that will be built on the Subject Property.

205The Tribunal is persuaded by Mr. Barnett’s opinion on the angular planes. He opined that the proposed structures, in particular, the 20-storey tower would breach the angular plane at 11 storeys; meaning both towers will breach the angular plane. There is also a lack of transition to adjacent properties.

206The purpose of the 45-degree angular plane is to ensure the element of good design for those building structures so as not to cause any significant shadow impacts and overlook, which impose privacy constraints on neighbouring areas. Despite the Applicant’s statements that there are no unacceptable shadow impacts, the Tribunal is of the view that Mr. Votruba’s opinion on the shadows cast on the amenity spaces on the buildings needs to be considered. Those amenity spaces are subject to the twin high towers shadows at different times of the day. In particular, there are very few landscaped green amenity areas with the Proposed Development. As such, considerations of shadows and shadowing impact on those amenity open spaces areas need to be taken into consideration.

207Another aspect of adverse impact or a matter of concern would be on the King Street East section. The high-rise tower of 20 storeys would rise close to the right of way. It is a sheer wall of 20 storeys rising up from ground level with no visible change from the podium or physical change from the podium structure right up to the 20th floor. From the public realm, it presents a 20-storey wall face which rises straight up. This has an impact on the public realm, and it is not compliant with the necessary policies of UHOP pertaining to the comfort and enhancement of the public realm experience for pedestrians along the King Street East side and the right of way.

208Miss Kiddie, for the City alluded to the lack of green spaces and the lack of trees on the Subject Property for the Proposed Development. However, the Tribunal accepts that the Applicant’s witness, Miss Whitehouse Seely, has adequately answered the need for replanting. The Tribunal does not doubt that landscape matters could be addressed. For the Tribunal, the landscape matter can be decided at the SPA stage. What needs to be decided right now would be the building design, the required setbacks, and also the effect of the lack of appropriate podium setbacks from the towers and the lack of step backs from the podium face to the tower walls. These are matters that would affect the viability of the proposal.

209The Tribunal is persuaded by Mr. Barnett's opinion that at the King Street side, there are no step backs of the podium building and the 20-storey tower building. Having no step backs will affect the visuals and ensure the imposition of the towering 20-storeys that affect the pedestrian experience on the King Street side. At the site triangle at the intersection of the King and Centennial Parkway, this development relies on City-owned Municipal land for the setbacks. At the same time, the Applicant does not provide for any public installation, public open space development, or aesthetics at that spot. The Tribunal is of the view that an animated public open space should be available in that particular area.

210Further, the Tribunal’s opinion is that the long building on the side of Centennial Parkway, with its grid-skin of the building face, does not give rise to an appropriate visual experience for pedestrians as well, on this side of the Subject Property.

211The same concerns relate to a lack of appropriate setbacks. In fact, in this area, the Applicant is setting back the building from the curb of the Municipal right of way and not from its own property line. Such maximization that is carried out by the Applicant is not viewed favourably by the Tribunal. The setback should be from the property line and not from the public right away. In this instance, therein lies the concern that the various proposed setbacks for this proposal are designed to be pushed to the maximum, right up to the property lines, as far as possible. Whether such a design will facilitate an appropriate building, that does not impose upon the neighbourhood remains to be viewed and evaluated. Upon evaluation, the Tribunal finds that such maximization of the envelope of the Subject Property is not appropriate and results in a lack of setbacks from the property lines and a massive building.

212Although the Applicant states that the relevant setbacks from the cemetery or from the King Street side or from the Centennial side need not be more the 1.5 m, as permitted in the zoning, there is also the issue of the southern side where the setback to the residential land on the southern side of the Subject Property. The setback that is proposed would affect the southern property. The potential for privacy, overlook and shadowing on the southern adjacent property cannot be discounted. Potential adverse impacts of privacy must be taken into consideration as the southern property is an RT10 Zone, which allows for low-rise to mid-rise development in the future. A lack of appropriate setback would result in the need to address impacts, which the Tribunal is cognizant of.

213The Tribunal is concerned with the imagery of the tall building that rises from the Subject Property, which is built out to its maximum to the property line. This is an area where the properties are mainly low-rise, medium-rise or to a possible height of 12 storeys.

214This proposed building is an imposing structure, and it is precedent setting. Miss Whitehouse Seely has stated categorically that at this intersection of King Street East and Centennial Parkway South, this building would rise high and be of significance at that intersection. The concern for the Tribunal is that such a significant building is not envisioned by the City at this particular site. The reason is that this area of the City with the cemetery belonging to the Municipality on the west side and a historic cultural heritage resource on the east side, a future residential low-rise to mid-rise on the vacant land on the South side, the concern is that a high building of this nature is not the focus of, nor the vision of the City. The City’s vision is not for such a development to be built on this particular Subject Property.

215The City's vision, targets and focus are based on the policies of the UHOP and the secondary plans [although the Subject Property is not subject to the two secondary plans]. These plans lead to the inexorable conclusion that the City has placed its vision, focus and planning in putting different densities, scales, and heights in focus areas of Higher Order Transit, LRT, and the GO station. Further, this Subject Property is not one of the focus areas for high density in the City.

216There is no denying that a certain density may be accommodated at the Subject Property. However, the scale and intensity of the present proposal far outstrips the intended density for this Subject Property. Despite a lack of or cap on the density, it does not necessarily mean that any density will be acceptable for a particular area of the City. There are density figures which can be compared with some other focus areas of the City; in certain areas, the density is at 100 to 200 units/ha. These density comparables should and would be relevant for development at the Subject Property.

217The Tribunal disagrees with the notion that since the density caps for the Subject Property have been removed, there will be no kind of density that will be applicable. It stands to reason that a density of 969 units/ha far outstrips the comparable density in any other focus areas of the City. Density needs to be reasonable and a fair assessment of how high the density should be at the Subject Property is a necessary step towards an appropriate development on the Subject Property.

218Nevertheless, the Tribunal is mindful of the need for development and the need to meet the Municipal and Provincial targets set by the Growth Plan and the targets of the City itself. Heading to 2051, the reminder from Mr. Johnston is noted, that the target of 48% is a challenge for the City to meet. As for the higher 81% target which the City has imposed at this point, that may not be achieved. However, this does not mean that any kind of proposal at any kind of density, height, scale, or development must be approved. The principle of good planning requires each property to be evaluated based on the designation, zoning, attributes, location, and ability of that Subject Property to accommodate the higher density, scale, and height. The zoning requirements of a particular area are vital. Whether or not the Proposed Development can be located on this Subject Property is a matter to be decided by the Tribunal. The Tribunal, in this particular instance, needs to weigh the public interest and also private interests as per its mandate.

219The Tribunal finds that the Proposed Development imposes a higher degree of density that is not envisioned by the City. The definition of “compatibility” also requires “harmonization”. The Tribunal views that a sudden huge building rising on a relatively low-rise landscape does not describe “harmony” as it is understood. The City’s vision of growth is directed by UHOP and the Secondary Plans direct focus to other areas for high densities, and not at this Subject Property.

220The opinions of the City’s witnesses are persuasive. The proposed height, scale and density, and the weight of evidence that is provided to the Tribunal shows that at a C3 and C4 Zone, the Proposed Development is not suitable nor appropriate for the Subject Property and does not accord with C4 standards that fit with the City's vision. The Proposed Development has also not complied with the C4 Zone that it wants to regulate. OPA 167 determines that balance is required in the area; in particular, the provisions of the UHOP regulate that balance and the layering of this balance.

221The Tribunal is of the opinion that the proposal does not conform to the UHOP policies. The proposal maximizes building on the plot, right to the Subject Property’s edge. The building on the King Street side does not have any step back, creating a sheer wall 20 storeys high. The angular plane is breached at 11 storeys. The building is a long building on the Centennial Parkway side. It has “no break-up form” from the visual standpoint. The grid-skin of the building does not create form-break nor create any visual breaks to the walls of the two towers. The elevation represents a uniform rise from the podium right up to the two towers on the right and left.

222On the South side, there is a real potential for adverse effects of overlook, privacy, and shadowing due to the height of the tower and the setback proposed. The Applicant reasoned that, currently, there is no residential building at the back for that requirement. However, the Tribunal would have to take into consideration the possibility of the potential adverse impact of overlook, shadowing, and privacy with respect to the property’s developable townhouses on the southern side.

223The Tribunal reiterates that compatibility requires harmonization with existing uses. Compatibility is tethered to the neighbourhood context and cannot be separated from it. The Tribunal disagrees with the Applicant that the context of the low-rise/mid-rise neighbourhood built form character can be ignored. The dropping onto the Subject Property, a building which is on paper almost five times the “as of right height dimensions,” does not exist in harmony with the built forms that exist in the area. The question of mutual tolerance and harmony can be answered by taking into consideration the VIA. Whether such a building has adverse impacts, if any, will be imposed upon the surroundings and neighbourhood area. The Tribunal’s finding is that, on existing facts and evidence, the proposal is not compatible with the character of the area.

224Despite the Applicant’s insistence that there are no adverse impacts on the cultural heritage resource to the east, the Tribunal is of the view that any visual impairment of the view corridor and also the visual impairment of a potential cultural heritage landscape and cultural heritage resource is an adverse impact. For that purpose, Miss Richer’s clear account as the City’s cultural heritage witness has persuaded the Tribunal that a VIA study is a necessary assignment that needs to be completed. For the Tribunal, this matter is of significance as OPA 167 has amended the UHOP to clearly require a VIA to evaluate impacts, imposed by the tall structures that will be built on the Subject Property.

225In the final analysis, the Tribunal finds that adverse impacts can be visual as they relate to the actual landscape, historic cultural heritage view vista, and public view corridor of the vicinity and this neighbourhood. The Tribunal finds that the Proposed Development is not compatible with the character of the neighbourhood area, and there are unacceptable adverse impacts as demonstrated.

226The Tribunal would also need to weigh the City’s vision citywide and the focus by the City on the actual targeted areas for high-density development or higher-density development.

227The Subject Property is subsumed within this UHOP vision. It cannot be, in this particular instance, divorced from the vision. The Tribunal views that the City’s vision, which is a Municipal planning objective, is in line with the Growth Plan policies or planning objectives that should be followed.

228It is undeniable that the provisions of the UHOP, as amended by the OPA 167, require the Applicant to provide a VIA to the satisfaction of the City. This particular section has been reviewed in this Decision (s.3.6.7.g).

229It must be emphasized that the existing characteristics and context of the neighbourhood are also necessary elements of compatibility. Adverse impacts can be adverse visual impacts as they relate to the actual landscape and view vista.

230The Tribunal agrees with the City’s witnesses that intensification is permitted on the Subject Property. However, the intensification that is proposed should not be a development that is overwhelming to the surrounding areas.

231Despite the Applicant’s insistence and submissions that the secondary plans are not relevant, the Tribunal acknowledges that the secondary plans demonstrate the intent and deliberate plans and focus by the City of targeting the relevant areas for providing higher intensity in those areas. The City’s vision, well-thought-out, planned, and precise focus on the relevant areas, would be frustrated by the Proposed Development. The City has indicated that this neighbourhood area will not see any transitional development of any high-rise buildings, if at all, at the Battlefield Park site or the cemetery site, which are the east and west side of the Subject Property. There will be potential townhouses, low-rise, and mid-rise developments on the RT10, southern side of the Subject Property.

232The Tribunal has considered the possibility that buildings approved to the north of the Subject Property could be at a maximum height of 12 storeys. This implies that this building, if the Proposed Development is approved by the Tribunal, would be precedent setting at 20 storeys. Such an outcome should not be brought about in a manner absent review of a VIA study by the Applicant.

233There is a need to ascertain the impact on the surroundings. It is logical to note that a 20-storey building and the 18-storey building next to it, if approved, will be the highest mountains in an area of small hills. That imagery will suffice to show that the sudden height, density, and scale will create an adverse impact on this low- to mid-rise landscape with an idyllic historic cultural heritage resource, a potential cultural heritage landscape and the Escarpment backdrop.

ZONING BY-LAW AMENDMENT

234The proposed ZBA, must be reviewed to determine conformity with the UHOP to ensure consistency and conformity with Provincial policy.

235The amended performance standards will permit the Proposed Development at too high a density and at a scale that is over intensification on the Subject Property. The Tribunal generally accepts the evidence of Mr. Barnett on the UHOP policies breaches conclusions for the Proposed Development on the over-intensification, density scale, and expressed reservations of the proposed height of the two towers at 18 and 20 storeys.

236Mr. Barnett went through in detail the proposed zoning standards of the proposed draft ZBA, highlighting the non-conforming dimensions to the extant C4 Zone standards and the proposed changes required.

237Mr. Barnett reiterated that the City-wide corridor planning principles and design guidelines apply (and as supported by Mr. Votruba’s opinion evidence). Section 4.3 the maximum building height for new multiple-storey buildings, which, in his view, can have a negative impact on the existing character of the area. Section 4.3.2 maximum height related to the street width of the particular area, the maximum height is related through the 45-degree angle and line at grade. In his opinion, there could be a long building Canyon effect with a long building on the side of Centennial Parkway which is over 60 m in length. This has been addressed as the canyon effect and challenged by the Applicants. The long building does have the effect of a massive, long base that could affect the visual impact on the public realm landscape in the Tribunal’s opinion.

238Upon all of the evidence, the Tribunal finds that the appeal is dismissed.

239The draft ZBA submitted to the Tribunal as Exhibit 13 will not be approved.

SITE PLAN APPEAL

240The proposed SPA was tied to the outcome of the ZBA appeal. At the commencement of the hearing, the Parties requested deferral of the SPA appeal and as such, no evidence was led with respect to the SPA or the form of the draft Site Plan Conditions.

SUMMARY OF FINDINGS

241The Tribunal finds that:

1. The Proposed Development is not consistent with the PPS and does not conform to the Growth Plan or the UHOP.

2. The Subject Property is located within an area that is not for the high intensification proposed.

3. The City’s vision and focus is on accommodating other locations for the kind of density that the Applicant is proposing.

4. The two tall 20-storey and 18-storey tower multi-unit developments, such as the Proposed Development, are not suitable or appropriate for the Subject Property.

5. The immediate context of low-rise to mid-rise built forms and the Subject Property’s location next to the Municipality’s cemetery and the adjacent historic Cultural Heritage Resource make the high density and scale of the Proposed Development non-conforming to the balanced consideration of the UHOP’s criteria.

6. A balanced consideration involves the Visual Impact Assessment, that is required, and an evaluation of compatibility. The Proposed Development failed to provide the Visual Impact Assessment, is not compatible with the neighbourhood character and would have an adverse impact on the adjacent uses.

7. The Proposed Development represents over-intensification at the Subject Property.

8. The Proposed Development as per the ZBA is not in conformity with the objectives and policies of the UHOP relating to intensification, compatibility and design.

242The Tribunal finds that the Appeal should be dismissed.

ORDER

243The Tribunal orders that the Appeal is dismissed.

“T.F. Ng”

T.F. NG

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.