Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 29, 2024
CASE NO(S).: OLT-21-001345
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Flamborough Power Centre Inc.
Subject: Request to amend the Official Plan - Failure of the City of Hamilton to adopt the requested amendment
Existing Designation: District Commercial
Proposed Designation: Neighbourhoods
Purpose: To permit the development of a complete community on the subject lands with different residential building types including townhomes and multiple dwelling buildings
Property Address/Description: 30 Dundas Street East
Municipality: City of Hamilton
Approval Authority File No.: UHOPA-19-012
OMB Lead Case No.: OLT-21-001345
OMB Case No.: OLT-21-001345 OMB Case Name.: Flamborough Power Centre 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: Flamborough Power Centre Inc.
Subject: Application to amend Zoning By-law No. 05-200 – Neglect of application by City of Hamilton
Existing Zoning: District Commercial
Proposed Zoning: Downtown Residential (D6, xxx), Modified
Purpose: To permit the development of a complete community on the subject lands with different residential building types including townhomes and multiple dwelling buildings
Property Address/Description: 30 Dundas Street East
Municipality: City of Hamilton
Municipal File No.: ZAC-19-044
OMB Lead Case No.: OLT-21-001345
OMB Case No.: OLT-21-001355
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Flamborough Power Centre Inc.
Subject: Proposed Plan of Subdivision - Failure of the City of Hamilton to make a decision
Purpose: To permit the development of a complete community on the subject lands with different residential building types including townhomes and multiple dwelling buildings
Property Address/Description: 30 Dundas Street East
Municipality: City of Hamilton
Municipal File No.: 25T-2019005
OMB Lead Case No.: OLT-21-001345
OMB Case No.: OLT-21-001356
Heard: October 3-5, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Flamborough Power Centre Inc.
Dennis Wood
City of Hamilton
Peter Krysiak
DECISION DELIVERED BY S. BOBKA AND K.R. ANDREWS AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This was the second phase Hearing regarding the appeal by Flamborough Power Centre Inc. (“Applicant”) against the City of Hamilton (“City”) for its failure to make a decision within the statutory timeframe for an Official Plan Amendment (“OPA”), Zoning By-law Amendments (“ZBA”) and a Draft Plan of Subdivision (“Draft Plan”). These proceedings were commenced under s. 22(7), s.34(11) and s. 51(34), respectively, of the Planning Act (“Act”), and involve a redevelopment proposal for large tracts of land located within the area of Highway 6 and Highway 5 known municipally as 30 Dundas Street East (“Subject Lands”).
BACKGROUND
2On June 26 and 28, 2023, the Tribunal heard a settlement proposal and subsequently amended Hamilton Zoning By-law No. 05 and Flamborough Zoning By-law No. 90-145-Z as well as the Urban Hamilton Official Plan. The Tribunal also ordered that the Draft Plan was approved subject to the imposition of conditions that may be required by the City.
3This second phase of the Hearing was convened to address any contested Draft Plan conditions as well as the Subdivision Agreement Provisions.
4Prior to the Hearing, regarding the added Parties, the Tribunal was advised by the Niagara Escarpment Commission (“NEC”) that its concerns had been addressed in the first phase, that it had no outstanding issues to be addressed in the upcoming Hearing and would not be participating in or attending the Hearing. The Tribunal was also informed that Conservation Halton’s (“CH”) proposed conditions of Draft Plan approval had been accepted by the Appellant and that CH would not be participating in or attending the Hearing.
5The proposal, site and area context of the subject lands are succinctly described at paragraphs [8-14] of the Tribunal’s July 27, 2023 Decision Flamborough Power Centre Inc. v Hamilton (City), 2023 (CanLII 69379 (ON LT)).
HEARING
6At the start of the present Hearing, the Tribunal was informed by the Parties that they had made remarkable progress and had provided the Tribunal (as requested) with an updated chart which had been reduced from approximately 40 matters down to about a dozen matters still in contention. The Parties suggested that with additional time, they anticipated that further scoping or settling of issues could occur. After some discussion, the Tribunal opted to stand down the Hearing for the day to give the Parties time to complete their discussions.
7Upon reconvening, the Parties advised that significant progress had been made since the previous day, with several issues resolved, and requested an additional day to continue their discussions. The Tribunal agreed with this request.
8Upon reconvening the following day, and after providing some brief additional time to continue discussions, the Tribunal was eventually advised that the Parties had reached a resolution on all remaining issues. The Hearing therefore proceeded in the form of a Settlement Hearing and the Tribunal heard planning and engineering evidence on the uncontested proposed conditions.
9The following witnesses were presented in support of the Settlement:
Gerry Tchisler: duly qualified as an expert in Land Use Planning; and
Steve Hader: duly qualified as an expert in Development Engineering.
EVIDENCE
10Mr. Tchisler provided the Tribunal with a thorough overview of the conditions, stating that, in his opinion the conditions met the criteria of s. 51(24) and 51(25) of the Act, that they were reasonable and implemented the instruments (OPA, ZBA and Draft Plan) which were previously approved by the Tribunal.
11He reviewed the approved Draft Plan and highlighted the various blocks, their purpose and how the conditions in the proposed subdivision agreement relate to them. He also reviewed the proposed subdivision agreement as revised and agreed to by the Parties.
12Mr. Tchisler presented a detailed review of the conditions which form the proposed subdivision agreement using the following categories:
i. definitions;
ii. general conditions, with attention to sections 1.05 (Land for Cash-In-Lieu of Land for Park), 1.11 (Storm & Sanitary Sewers and Watermains), 1.14 (Temporary Access Road / Turning Circles), 1.33 (Deficiencies in Work), 1.43 (Default and Remedies), 1.50 (Specific Requirements);
iii. conditions to be satisfied prior to registration, with attention to sections 2.10 (Subdivision of Blocks), 2.11 (Approved Servicing Design) and 2.16 (Specific Requirements);
iv. conditions to be satisfied prior to preliminary grading, with attention to sections 3.04 (Grading Authorization) and 3.08 (Specific Requirements);
v. conditions to be satisfied prior to servicing, with attention to sections 4.01 (Requirements Prior to Servicing) and 4.08 (Specific Requirements);
vi. conditions to be satisfied prior to acceptance of the building permit, with attention to sections 5.01 (Requirements of Building Permit) and 5.04 (Part Lot Control Exemption); and
vii. a single condition to be satisfied in order to release the agreement.
13Mr. Tchisler also addressed the conditions put forward by CH finding those conditions to be appropriate and reasonable.
14He concluded that the conditions in the proposed subdivision agreement would “facilitate a plan of subdivision that would be appropriate for the subject lands, represent good planning and be in the public interest.”
15Mr. Hader reviewed the servicing components of the Draft Plan, with particular focus on the elements of the road system, the storm water management pond, the changes to Block 11 and the grading (including the relationship between the Subject Lands and the properties to the South).
16It was his overall opinion that the servicing design poses no undue adverse impacts on the private lands to the south, is in keeping with good engineering practice and will adequately service the development as well as the applicable external lands.
IMPACT OF BILL 150
17Since the conclusion of the Hearing held by the Tribunal and prior to the issuance of this Decision, the Tribunal reached out to the Parties to seek input as to whether the passing of Bill 150, the Planning Statute Law Amendment Act, 2023 which enacts the Official Plan Adjustments Act, 2023 (“OPAA”) and received Royal Assent on December 6, 2023, had any impacts on the potential outcome of this matter. Some of the Parties (including the City and the Applicant) have provided responses to state that Bill 150 does not impact the matter that was heard. The Tribunal is satisfied that this matter is not impacted by Bill 150.
FINDINGS
18All of the evidence heard by the Tribunal was in support of the proposed Draft Plan conditions and the Tribunal wholly accepts the uncontroverted evidence of Mssrs. Tchisler and Hader.
19Based on the evidence presented, the Tribunal finds that the proposed conditions have appropriate regard to the matters set out in s. 51(24) of the Act, are otherwise reasonable and have appropriate regard to the nature of the proposed development, and thereby satisfying the requirements of s. 51(25) of the Act. The Tribunal further accepts the opinion evidence of the witnesses and similarly finds that the subject conditions, as revised, have appropriate regard to those applicable matters of provincial interest found in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020, and conform to the A Place to Grow; Growth Plan for the Greater Golden Horseshoe, 2020. The Tribunal is also satisfied that the conditions are representative of good land use planning and are in the public interest. As a result, the Tribunal will impose the conditions.
ORDER
20THE TRIBUNAL ORDERS that:
a. the draft plan of subdivision, approved by the Tribunal on July 27, 2023 (as set out in Attachment 1 to this Order) and as revised to implement the settlement between the City and the Applicant/Appellant is approved (as set out in Attachment 2 to this Order (the “Draft Plan”)), and is subject to the condition that the Applicant/Appellant enter into the subdivision agreement (in the form as set out in Attachment 3 to this Order and with appropriate dates inserted prior to execution) and fulfill the conditions within the agreement;
b. pursuant to subsection 51(56.1) of the Planning Act, the City of Hamilton shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. If there are any difficulties in regard to the fulfillment of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to; and
c. the approval of the Draft Plan shall lapse five (5) years following the fulfillment of the conditions of draft approval.
“S. Bobka”
S. BOBKA
MEMBER
“K.R. Andrews”
K.R. ANDREWS
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.