Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 30, 2024
CASE NO(S).: OLT-22-004063
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant and Appellant: Wellington Hamilton Non-Profit Housing Inc.
Subject: Request to amend the Official Plan - Failure of City of Hamilton to adopt the requested amendment
Existing Designation: Neighbourhoods
Proposed Designation: Neighbourhoods – High Density Residential
Purpose: To permit a 12-storey residential building
Property Address/Description: 186 Hunter Street
Municipality: City of Hamilton
Reference No.: UHOPA-22-006
OLT Case No.: OLT-22-004063
OLT Lead Case No.: OLT-22-004063
OLT Case Name: Wellington Hamilton Non-Profit Housing Inc. v. Hamilton (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Wellington Hamilton Non-Profit Housing Inc.
Subject: Application to amend Zoning By-law No. 05-200 Refusal of application City of Hamilton
Existing Zoning: Community Commercial (C3) Zone
Proposed Zoning: "E3/S_” (High Density Multiple Dwelling) District
Purpose: To permit a 12-storey residential building
Property Address/Description: 186 Hunter Street
Municipality: City of Hamilton
Reference No.: ZAC-22-014
OLT Case No.: OLT-22-004064
OLT Lead Case No.: OLT-22-004063
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Wellington Hamilton Non-Profit Housing Inc.
Subject: Site Plan
Description: To permit a 12-storey residential building
Reference Number: DA-22-151
Property Address: 186 Hunter Street
Municipality/UT: City of Hamilton
OLT Case No.: OLT-22-004855
OLT Lead Case No.: OLT-22-004063
Heard: December 6, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Wellington Hamilton Non-Profit Housing Inc.
Russell Cheeseman Stephanie Fleming
City of Hamilton
Peter Krysiak Patrick MacDonald (in absentia)
MEMORANDUM OF oral decision DELIVERED BY G.A. CROSER ON DECEMBER 6, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This appeal was brought pursuant to subsections 22(7), 34(11), and 41(12) of the Planning Act (the “Act”) by Wellington Hamilton Non-Profit Housing Inc. (the “Applicant”). The appeal arose following non-decisions by the City of Hamilton (the “City”) within the prescribed timeframes for the proposed Official Plan Amendment (“OPA”), Zoning By-law Amendments (“ZBLA 1 & ZBLA 2”), and Site Plan Approval (“SPA”) necessary to facilitate the redevelopment of 186 Hunter Street East (“Subject Site”).
2The Parties engaged in Tribunal-led mediation and, prior to the hearing on the merits of this matter, entered into Minutes of Settlement (“MOS”) based on a revised concept plan for the Subject Site. As a result, the Parties requested that the merit hearing be converted into a hearing of the proposed settlement. The Applicant’s Planner, Mr. Matt Johnston, provided the Tribunal with uncontroverted land use planning evidence in support of the settlement.
SUBJECT SITE AND AREA CONTEXT
3The Subject Site is rectangular in shape, approximately 0.18 hectares and borders three municipal roads: Liberty Street, Ferguson Avenue South, and Hunter Street East. It is located within walking distance of the Hamilton GO Station and there are ten public parks within an 800-metre radius of the site. This area of the City is known as the Corktown Neighbourhood, an old neighbourhood characterized by variation: some historic built form, high density, and a mix of residential types including mid-rise, high rise as well as single detached dwellings of two and three storeys.
4The site is currently occupied by a single-storey commercial building and the lands are presently zoned Community Commercial (C3) within the City Zoning By-law No. 05-200 (“ZBL 05-200”), and designated Neighbourhoods in the Urban Hamilton Official Plan (“UHOP”). A Cultural Heritage Impact Assessment was completed as part of the original OPA and ZBLA applications to the City which concluded that the proposed demolition of the existing building on site would have minimal impact on the documented heritage of the Corktown Neighbourhood.
CHRONOLOGY OF THE APPLICATION
5On December 22, 2021, the Applicant submitted an OPA and ZBLA applications to facilitate the redevelopment of the Subject Site (“Original Proposal”). The concept consisted of a 12 storey multiple dwelling containing 104 affordable residential units and an underground garage with 50 vehicle parking spaces. The OPA was required to address the number of units per hectare that was permitted by the UHOP within the Neighbourhoods designation. Following the submission of the Original Proposal, a change to the UHOP via Official Plan Amendment 167 (“OPA 167”) was approved by the City. The OPA 167 removed all maximum density requirements on an individual site basis within the Neighbourhoods designation, meaning an OPA was technically no longer required.
6Two Zoning By-law Amendments (“ZBLA 1”) and (“ZBLA 2”) were required to redevelop the Subject Site. The City’s Residential Zoning By-law No. 6593 (“ZBL 6593”) is separate from the remainder of the City’s Zoning By-law. Therefore, ZBLA 1 was required to remove the lands from the Community Commercial (C3) Zone in ZBL 05-200. ZBLA 2 was required to include the lands within ZBL 6593 as high-density multiple dwelling residential, along with other regulations for reduced yard setbacks, increased building height, minimum landscaped area reductions and reduced vehicle parking ratios.
7On June 21, 2022, the above noted applications were appealed to the Tribunal. On September 22, 2022, a Site Plan Application (“SPA”) was submitted to the City for the Subject Site, which was subsequently appealed to the Tribunal on October 28, 2022. The OPA, ZBLA 1 & 2 and SPA were subsequently consolidated by the Tribunal into one appeal.
8On June 30, 2023, an amendment proposal for the Subject Site was submitted to the Tribunal consisting of a fourteen-storey residential building containing 241 dwelling units, 50 vehicle spaces contained in an underground garage and 122 long-term bicycle parking spaces.
REVISED PROPOSAL
9Through Tribunal-led mediation in August 2023, both Parties agreed to a further revision of the application (the “Revised Proposal”). On December 6, 2023, the parties entered into MOS based on the Revised Proposal. The Revised Proposal consists of a 14 storey dwelling containing 227 dwelling units, comprised of 94 one (1) bedroom units, 102 one (1) bedroom + den units and 31 two (2) bedroom units. The development provides 45 vehicle spaces contained within an underground garage and 123 long-term bicycle parking spaces. All of the proposed vehicle parking spaces will be located within an underground garage internal to the site which will maintain a pedestrian oriented environment along Hunter Street East, Liberty Street, and Ferguson Avenue South. The reduced vehicle parking ratio of 0.2 spaces per unit reflects the Subject Site’s location within an identified Major Transit Station Area (“MTSA”). The architectural plans for this Revised Concept introduced tower setbacks above the 8th and 12th storeys along the building’s easterly façade to achieve a more gradual transition in height and scale to the existing dwellings fronting Liberty Street.
10It was agreed by the Parties that in light of the change to UHOP via OPA 167, an OPA for the Revised Proposal would no longer be necessary to facilitate the redevelopment with regard to density. However, an OPA would be sought with regards to the affordable housing component of the MOS. The Parties agreed that no less than 25% of the units in the new development would be Affordable Units (as that term is defined in the UHOP resulting in rent set at 30% of household income for the 60th percentile of incomes in the area), to be secured by an agreement with the City to be registered on title for the Subject Site for a term of not less than 20 years from occupancy.
LEGISLATIVE FRAMEWORK
11When considering a proposed settlement, the Tribunal must have regard for matters of provincial interest set out in s.2 of the Act, as well as the position taken by the municipality and the information considered by it, pursuant to s.2.1(1) of the Act. In this case the settlement, and thus the Tribunal’s decision, must be consistent with the Provincial Policy Statement, 2020 (“PPS”), conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and conform with the Urban Hamilton Official Plan (“UHOP”) and City Zoning By-law No. 6593.
[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
12Mr. Johnston’s opinion was that the Revised Proposal had regard for all matters of provincial interest outlined in s.2 of the Act. In particular, he explained that this was an infill project on an under-utilized site, in an appropriate location for growth and was more in keeping with the surrounding Corktown Neighbourhood that the current use. Mr. Johnston noted that s.2(j) of the Act was met as the provision for affordable housing units was secured through the OPA. The Planner also stated that this type of intensification improved the range of affordable housing options within the area, would utilize existing infrastructure, and would have positive implications for the municipal tax base. Lastly, Mr. Johnston alluded to the fact s.2(f), the adequate provision and efficient use of sewage, water services and waste management, amongst others, would be further secured through the proposed Site Plan Conditions.
Provincial Policy Statement, 2020
13Mr. Johnston noted that the Subject Site is located within a MTSA and would further PPS policies with respect to land use patterns and transportation systems. The Tribunal was also taken to Policy directive 1.4 on Housing, and the Planner testified that the Revised Proposal would introduce a built form that was needed in the community and would deliver a component of affordable housing. In summary, Mr. Johnston was of the opinion that the proposed OPA, ZBLAs and SPA were consistent with the PPS.
Growth Plan for the Greater Golden Horseshoe
14Mr. Johnston opined that the Revised Proposal conformed with the Growth Plan. The Planner directed the Tribunal to the s.1.2.1 of the Growth Plan which, to paraphrase, states that the policies of the Growth Plan concerning the development of land include supporting the achievement of complete communities. To Mr. Johnston, the Revised proposal will contribute to a complete community through the introduction of a mix of unit sizes and densities, as well as a built form that promotes walkability and neighbourhood integration.
Urban Hamilton Official Plan
15Mr. Johnston directed the Tribunal to Policy B.2.4.1.3 of the UHOP which prescribes a 30% residential intensification target within lands designated Neighbourhoods. Further at Policy E.2.5 of the UHOP, a minimum density target of 160 residents and jobs per combined hectare (in keeping with the Growth Plan) is set for lands located within MTSAs to achieve a “mix of uses and densities which are supportive of higher-order transit.” Mr. Johnston opined that as the Subject Site is within an area designated Neighbourhoods and an identified MTSA, that the proposed development would aid the City in managing growth through the provision of dwelling units and meeting population targets.
16With respect to the criteria for evaluating residential intensification as set out in Policy B.2.4.2.2 of the UHOP, Mr. Johnston directed the Tribunal to his Affidavit which set out his opinion for each point in detail. At the hearing, Mr. Johnston opined that the proposed development had been designed to be compatible with the character and function of the existing neighbourhood and appropriately transitioned height through the implementation of appropriate setbacks and tower step backs which would be regulated by the amending By-law. That it was a compatible form of intensification that fit within the surrounding context.
17Mr. Johnston also directed the Tribunal’s attention to Policy B.3.2.4 of the UHOP which provides general policies for urban housing. Policy B.3.2.4.2, specifically, speaks to the need for housing with a full range of tenure, affordability, and support services throughout the City. The Planner opined that this section of the UHOP was particularly relevant with respect to the affordable housing component of the Revised Proposal. He explained that the UHOP sets out criteria with respect to the conversion of rental units into condominiums. While these policies are well intended to provide opportunities for home ownership, the consequence is that they also remove units from the housing stock. The OPA instrument will safeguard the affordable housing component by preventing condominium conversion for the life of the affordable housing component of the Revised Proposal.
Former City of Hamilton Zoning By-law No. 6593
18Currently, the Subject Site is zoned as Community Commercial (C3). The Revised Proposal includes two ZBLA’s. The City’s consolidation of the parent Zoning By-law was introduced in phases, the only remaining phase is Residential. As such, ZBLA 1 is to remove the Commercial zoning from the Subject Site and thus remove it from the ZBL 05-200. The ZBLA 2 will place the Subject Site within ZBL 6593 in a site specific E3 high density and multiple dwelling district and include the other regulations with respect to massing, prescribed parking ratios to ensure the orderly development of the Subject Site in alignment with the architectural drawings.
19Mr. Johnston explained that there was much discussion between the Parties over how to integrate the redevelopment into the neighbourhood and that it was the careful arrangement of the building’s massing that led to the Parties reaching a consensus. In his opinion, ZBLA 2 was necessary to establish appropriate site-specific development standards which implement both municipal and provincial policy objectives.
20Mr. Johnston concluded his testimony by stating that in his opinion the Revised Proposal and the requisite OPA, ZBLA 1, ZBLA 2 and SPA to implement the Revised Proposal represent good land use planning and are in the public interest. He recommended that the Tribunal allow the Appeals and approve the OPA and ZBLA’s as per the documents set out in Attachments 1-3. With respect to the Site Plan, Mr. Johnston explained that a conditional site plan approval would be utilized and that it would be a two-phase process requiring the approval of conditions prior to the City issuing a building permit. In his view, the conditions for the SPA agreed upon by the Parties were standard conditions. Mr. Johnston recommended that the Tribunal grant the SPA in accordance with the drawings set out in Attachment 5 and that the approval of the SPA be subject to the Site Plan Conditions set out in Attachment 4.
FINDINGS
21Based on the uncontroverted and unopposed opinion evidence of Mr. Johnston, the Tribunal finds that the proposed Application has appropriate regard for matters of Provincial Interest, is consistent with the PPS, conforms with the Growth Plan, UHOP and is representative of good land use planning in the public interest.
22The Tribunal finds that this is a compact, transit-supportive infill development within an identified MTSA. It will contribute to the range and mix of housing types and increases the supply of affordable housing units in the area. The Tribunal accepts the evidence of Mr. Johnston that the Corktown Neighbourhood is characterized by variation in built form and that the setbacks and step backs to the east of the Subject Site will improve the transition in height and scale to the existing low density uses along Liberty Street.
23The Tribunal is satisfied that the conditions of the SPA are appropriate for the redevelopment of the Subject Site.
24Since the conclusion of the Settlement heard by the Tribunal, and prior to the issuance of this Decision, the Tribunal reached out to the Parties to seek input if the passing of Bill 150, Planning Statute Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023, which received Royal Assent on December 6, 2023, had any impact on the potential outcome of this matter. Counsel for the City provided a response stating that Bill 150 did not impact the matter that was heard.
25The Tribunal allows the Appeal, approves the OPA as set out in the instrument found at Attachment 1 and approves the ZBLAs as set out in the instruments found at Attachment 2 and Attachment 3. The Tribunal approves the SPA in accordance with the Revised Proposal plans, set out at Attachment 5 and subject to the conditions set out at Attachment 4.
ORDER
26THE TRIBUNAL ORDERS THAT the appeal filed pursuant to s.22(7) of the Planning Act, as amended, is allowed and that the Urban Hamilton Official Plan is hereby amended as set out in Attachment 1 to this Order.
27THE TRIBUNAL ORDERS THAT the appeal filed pursuant to s.34(11) of the Planning Act, as amended, is allowed and By-law No. 05-200 of the City of Hamilton is hereby amended as set out in Attachment 2 to this order. The Tribunal authorizes the municipal clerk of the City of Hamilton to assign a number to this By-law for record keeping purposes.
28THE TRIBUNAL ORDERS THAT the appeal filed pursuant to s.34(11) of the Planning Act, as amended, is allowed and By-law No. 6593 of the City of Hamilton is hereby amended as set out in Attachment 3 to this order. The Tribunal authorizes the municipal clerk of the City of Hamilton to assign a number to this By-law for record keeping purposes.
29THE TRIBUNAL ORDERS THAT the appeal filed pursuant to s.41(12) of the Planning Act, as amended, is allowed and the site plan drawings prepared by Graziani & Corazza Architects Inc. referenced as Job# 2131.23 and having a plot date of September 28, 2023, are approved subject to the conditions set out in Attachment 4 to this Order.
“G.A. Croser”
G.A. CROSER
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1
ATTACHMENT 2
ATTACHMENT 3
ATTACHMENT 4
ATTACHMENT 5