499 Mohawk Inc. v. Hamilton (City), 2025 CanLII 14495

Ontario Municipal Board

Commission des affaires municipales de l’Ontario

ISSUE DATE: February 19, 2025

CASE NO.: OLT-23-000795

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

Applicant/Appellant: 499 Mohawk Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses

Reference Number: UHOPA-23-001

Property Address: 499 Mohawk Road East

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-23-000795

OLT Lead Case No: OLT-23-000795

OLT Case Name: 499 Mohawk Inc. v. Hamilton (City)

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

Applicant/Appellant: 499 Mohawk Inc.

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

Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses

Reference Number: ZAC-23-001

Property Address: 499 Mohawk Road East

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-23-000797

OLT Lead Case No: OLT-23-000795

BEFORE: C. HARDY, VICE CHAIR

Wednesday, the 19th day of February, 2025

THESE MATTERS having come for a public hearing with the Tribunal having issued its Procedural Order on April 16, 2024;

AND THE TRIBUNAL having been advised by the Parties that as a result of ongoing discussions the Parties have reduced and scoped the issues of the appeal and requested a reduction in the number of hearing dates required;

AND THE TRIBUNAL having received, on consent, an Updated Procedural Order that includes a reduced Issues List, an Agreed Statement of Facts, updated working draft instruments, and contains an amended schedule of the remaining exchange dates;

THE TRIBUNAL ORDERS that the Updated Procedural Order set out as Attachment “A” to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on Monday, March 17, 2025.

“Euken Lui”

ACTING REGISTRAR

Ontario Land Tribunal

Website: 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 “A”

ISSUE DATE: February 19, 2025 CASE NO(S).: OLT-23-000795

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

Applicant/Appellant: 499 Mohawk Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses

Reference Number: UHOPA-23-001

Property Address: 499 Mohawk Road East

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-23-000795

OLT Lead Case No: OLT-23-000795

OLT Case Name: 499 Mohawk Inc. v. Hamilton (City)

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

Applicant/Appellant: 499 Mohawk Inc.

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

Description: To permit a residential development consisting of eight multiple dwellings ranging in height from 25-storeys to 8-storeys and townhouses

Reference Number: ZAC-23-001

Property Address: 499 Mohawk Road East

Municipality/UT: Hamilton/Hamilton

OLT Case No: OLT-23-000797

UPDATED PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

2. If a settlement between the parties is reached in this proceeding, the Tribunal shall be notified of same as soon as possible and a Settlement Motion Record must be served upon the parties and the participants, and filed with the Tribunal, no later than Friday, March 7, 2025.

3. If a settlement is not reached, the balance of this Order shall govern the proceedings.

Organization of the Hearing

4. The video hearing will begin on Monday, March 17, 2025 at 10am at the following location:

GoToMeeting: https://global.gotomeeting.com/join/914098901 Access Code: 914-098-901

5. The length of the hearing shall be 5 days unless otherwise directed by the Tribunal. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. The procedural order deadlines are found in Attachment 1.

6. The parties and participants identified at the case management conference are set out in Attachment 2. Unless the Tribunal directs otherwise, a person who wishes to become a party or participant at the hearing who Is not listed in Attachment 2 must make the necessary motion to the Tribunal. The Tribunal may refuse to grant such status.

7. The parties have agreed to an updated list of issues to be adjudicated at the hearing as set out in the Issues List attached as Attachment 3. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

8. The order of evidence shall be as set out in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

9. The meaning of the terms used in this Procedural Order are identified in Attachment 5.

10. Any person granted status to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

11. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

12. The Applicant/Appellant intends to seek approvals substantially in accordance with the draft Official Plan Amendment and the draft Zoning By-law Amendment included as Attachment 6 unless otherwise agreed to by the parties. If the Applicant/Appellant provides a revised proposal, the parties shall have the right to request that the Tribunal revise and/or augment the issues list to address the revision(s).

13. Witness Lists were exchanged by the parties on Tuesday, December 3, 2024.

14. Participant Statements in this proceeding were received from Todd Bryce (January 21, 2025), Penny Bryce (January 21, 2025), Shari Gray (January 22, 2025), Angelo Mosca Jr. (January 23, 2025) and Stacey Kursikowski (January 24, 2025).

15. Expert witnesses in the same field held experts’ meetings and used best efforts to try to resolve and reduce the issues for the hearing. The parties’ Statement of Agreed Facts is included as Attachment 7 to this Order.

16. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 17 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

17. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 17 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 16 below.

18. On or before Friday, February 28, 2025, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 24 below.

19. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Friday, March 7, 2025, and in accordance with paragraph 24 below.

20. On or before Monday, March 10, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 24 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

21. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Wednesday, March 12, 2025.

22. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

23. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 2 days before the hearing that the written evidence is not part of their record.

24. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Thursday March 13, 2025, with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross- examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

25. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

26. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized. So orders the Tribunal.

BEFORE:

Name of Member: Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1 SUMMARY OF DATES

DATE

EVENT

February 28, 2025

Exchange of Witness Statements, summoned witness outlines and Expert Reports

March 7, 2025

Exchange of Reply Statements (if any)

March 10, 2025

Exchange of visual evidence (if any)

March 12, 2025

Finalize & submit Joint Document Book

March 13, 2025

Hearing Plan filed with the Tribunal

March 17, 2025

Hearing commences (5 days)

Parties

ATTACHMENT 2

LIST OF PARTIES AND PARTICIPANTS

499 Mohawk Inc. [Applicant/Appellant]

Patrick Harrington Matthew Helfand Aird & Berlis LLP

Brookfield Place, 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9

Tel: 416-863-1500

Email: pharrington@airdberlis.com mhelfand@airdberlis.com

City of Hamilton Peter Krysiak City of Hamilton Legal Services

50 Main Street East, 5th Floor Hamilton, Ontario L8N 1E9 Tel: 905-546-2424

Email: Peter.Krysiak@hamilton.ca

Participants

1Zita Bersenas-Cers - zitacers@gmail.com

2Gina Graham - gina.graham65@gmail.com

3Jason Freeman - jfreeman5624@gmail.com

4Matthew Borsellino - mborse@hotmail.com

5Douglas Gregory MacDonald - greg.macdonald@mhdrockland.com

6Stacey Kursikowski - s.kursikowski@gmail.com

7Shari Gray - angshar@outlook.com

8Elaine & Mark Gee - Mandegee@rogers.com

9Angelo Mosca Jr. - angshar@outlook.com

10Penny Bryce - copper_kitty@rogers.com

11Todd Bryce - brycetodd@rogers.com

12Dave Forsyth - forsythdave@hotmail.com

13Alice Phillips - phillpsalice7@gmail.com

14Lisa Legault - Lisa.legault77@gmail.com

15Julian Andreychuk - jrandy58@gmail.com

ATTACHMENT 3 ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and/or argument at the hearing.

1. Do the applications have appropriate regard for matters of provincial interest as enumerated in section 2 of the Planning Act?

2. Would the approval of the applications be consistent with the applicable policies of the 2024 Provincial Planning Statement?

3. Would the approval of the applications be consistent with the following policies of the 2020 Provincial Policy Statement:

a. 1.1.1(b), (g);

b. 1.1.3.2(b)?

4. Would the approval of the applications be in conformity with the following policies of the 2020 Growth Plan for the Greater Golden Horseshoe

a. 2.2.1.4(a), (c)?

5. Do the applications generally conform with the following policies of the Urban Hamilton Official Plan:

a. Section E.2.0;

b. B.2.4.1.4 b), c), d), e), f) and l);

c. B.3.2.4.9;

d. B.3.3.1.5;

e. B.3.3.1.8;

f. B.3.3.2.1 a);

g. B.3.3.2.3 a), b) and f);

h. B.3.3.2.6 d);

i. B.3.3.3.1;

j. B.3.3.3.2 a), c);

k. B.3.3.3.3;

l. B.3.3.3.5 e);

m. B.3.6.3.7;

n. B.3.6.3.8;

o. Section C.4.2;

p. Section C.5.3;

q. E.4.6.1;

r. E.4.6.4;

s. E.4.6.8;

t. E.4.6.9;

u. E.4.6.15;

v. E.4.6.22;

w. E.4.6.24;

x. E.4.6.29;

y. E.4.7.9; and

z. F.1.9.1 & F.1.9.2.

6. Do the proposed zoning categories and site-specific regulations appropriately regulate and implement the proposed development? In particular:

a. Has the proposed driveway width of 10-metres been appropriately justified? Should the driveway width be reduced to 7.5-metres?

b. Has the internal roadway width of 7-8 metres been appropriate justified? Should the internal roadway width be reduced to 6 metres?

c. Should a 1.5-metre sidewalk be provided on at least one side of the internal roadway throughout the site?

d. What is the appropriate design for the underground parking and loading, inclusive of ramps?

e. Are the proposed laybys on Mohawk Road East supportable?

7. Would the approval of the applications constitute good planning in the greater public interest?

ATTACHMENT 4 ORDER OF EVIDENCE

1. 499 Mohawk Inc.

2. City of Hamiton

3. 499 Mohawk Inc. (in reply, if any)

ATTACHMENT 5

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so).

Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications,

(3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 6

Draft Official Plan Amendment and Draft Zoning By-law Amendment

Schedule “3”

Page 1 of 3

Urban Hamilton Official Plan Amendment No. 227

The following text, together with:

Schedule “1” OLT-23-000795

Appendix “A”

Volume 1: Schedule E-1 – Urban Land Use Designations

Appendix “B”

Volume 3: Map 2 – Urban Hamilton Site Specific Key Map

attached hereto, and constitutes Official Plan Amendment No. 227 to the Urban Hamilton Official Plan.

1.0 Purpose and Effect:

The purpose and effect of this Amendment is to redesignate the subject lands from “District Commercial” to “Neighbourhoods” and to establish a new Site Specific Policy within the Urban Hamilton Official Plan, to permit a mixed use development with a maximum height of 20 storeys, containing a minimum of 17 affordable dwelling units.

2.0 Location:

The lands affected by this Amendment are known municipally as 499 Mohawk Road East, in the former City of Hamilton.

3.0 Basis:

The basis for permitting this Amendment is:

• The proposed development supports the policies of the Urban Hamilton Official Plan, as it contributes to an appropriate range of housing options, makes efficient use of land and existing infrastructure, and contributes to development of transit-supportive densities;

• The proposed development implements the Residential Intensification policies of the Urban Hamilton Official Plan; and,

• The Amendment is consistent with the Provincial Planning Statement, 2024.

Schedule “3”

Page 2 of 3

4.0 Actual Changes:

4.1 Volume 1 – Parent Plan

Schedules and Appendices

4.1.1 Schedule

a. That Volume 1: Schedule E-1 – Urban Land Use Designations be amended by redesignating the subject lands from “District Commercial” to “Neighbourhoods”, as shown on Appendix “A”, attached to this Amendment.

4.2 Volume 3 – Special Policy Areas, Area Specific Policies, and Site Specific Policies

Text

4.2.1 Chapter C – Urban Site Specific Policies

a. That Volume 3: Chapter C – Urban Site Specific Policies be amended by adding a new Site Specific Policy, as follows:

“UHN-39 Lands located at 499 Mohawk Road East, former City of Hamilton

1.0 For lands designated “Neighbourhoods” and located at 499 Mohawk Road East, Hamilton, the following policies shall apply:

a) Notwithstanding Policy E.3.5.8 of Volume 1, additional height up to a maximum of 20 storeys may be permitted, provided compliance with criteria a) through e) of Policy E.3.5.8 of Volume 1 is demonstrated.

b) A minimum of 17 affordable dwelling units shall be provided.”

Maps and Appendices

4.2.2 Maps

a. That Volume 3: Map 2 – Urban Site Specific Key Map be amended by identifying the subject lands as UHN-39, as shown on Appendix “B”, attached to this Amendment.

Schedule “3”

Page 3 of 3

5.0 Implementation:

An implementing Zoning By-Law Amendment and Site Plan approval will give effect to the intended uses on the subject lands.

This Official Plan Amendment is Schedule “1” to By-law No. pursuant to the Decision / Order of the Ontario Land Tribunal issued in Case No. OLT-23-000795 on the th day of , 2025.

Schedule 4

Page 1 of 7

CITY OF HAMILTON

BY-LAW NO. 25 –

To amend Zoning By-law No. 05-200 with respect to lands located at 499 Mohawk Road East, Hamilton

WHEREAS the City of Hamilton’s new comprehensive Zoning By-law being Zoning By- law No. 05-200 came into force on May 25, 2005;

AND WHEREAS the Ontario Land Tribunal, in its Decision/Order No. OLT-XX-XXXX, dated the day of 2025, approved the amendment to Zoning By-law No. 05-200 (Hamilton), as herein provided;

AND WHEREAS this By-law conforms with the Urban Hamilton Official Plan upon adoption of Official Plan Amendment No. 227;

NOW THEREFORE the Ontario Land Tribunal enacts as follows:

1. That Schedule “A” – Zoning Maps, Map Nos. 1186 and 1240 is amended by changing the zoning from the District Commercial (C6) Zone to the Transit Oriented Corridor Mixed Use Medium Density (TOC1, 926, H193) Zone, for the lands known as 499 Mohawk Road East, the extent, and boundaries of which are shown on Schedule “A” to this By-law.

2. That Schedule “C”: Special Exceptions is amended by adding the following new Special Exception:

“926. Within the lands zoned Transit Oriented Corridor Mixed Use Medium Density (TOC1) Zone, identified on Map Nos. 1186 and 1240 of Schedule “A” – Zoning Maps and described as 499 Mohawk Road East, Hamilton, the following special provisions shall apply:

a) Notwithstanding Section 4.6 d), 4.6 e), and 4.35 the following regulations shall apply:

i)

Permitted Yard Encroachments

No part of any required yard shall be obstructed except as follows:

A)

A porch, deck or canopy may encroach into any required yard to a maximum of 3.0 metres.

Schedule 4

Page 2 of 7

B)

A balcony may encroach into any required yard to a maximum of .2.0

metres.

b) In addition to Section 11.1.1 and notwithstanding Sections 11.1.2 i),

11.1.3 a), b), c), d), and g) iii) and v), the following regulation shall apply:

i)

A Semi-Detached Dwelling and Street Townhouse Dwelling shall also be permitted.

ii)

Notwithstanding Section 11.1.1, the following uses are prohibited, even as an accessory use: Drive-Through Facility, Duplex Dwelling, Motor Vehicle Dealership, Motor Vehicle Gas Bar, Motor Vehicle Rental Establishment, Motor Vehicle Service Station, Motor Vehicle Washing Establishment, and Single Detached Dwelling.

iii)

Building Setback from a Street Line

Minimum 3.0 metres for ground floor residential units facing a street.

iv)

Minimum Rear Yard

6.5 metres.

v)

Minimum Interior Side Yard

6.5 metres.

vi)

Minimum Separation Distance Between Buildings

A)

3.0 metres for any portion of a building to a maximum of 11.0 metres in height.

B)

15.0 metres for any portion of a building greater than 11.0 metres in height to a maximum of 40.0 metres in height to any portion of another building greater than 11 metres in height to a maximum of 40 metres in height

C)

25.0 metres for any portion of building greater than 40.0 metres in height to any portion of another building greater than 40 metres in height.

Schedule 4

Page 3 of 7

vii)

Minimum Building Setback from a Property Line

In addition to the above, for the lands identified on Figure No. 44 of Schedule F – Special Figures minimum building setbacks from a property line shall be in accordance with Figure No. 44.

viii)

Minimum Building Stepback

For the lands identified on Figure No. 44 of Schedule F – Special Figures minimum building stepbacks shall be in accordance with Figure No. 44.

ix)

Maximum Building Height

11 metres, except for lands identified on Figure No. 44 of Schedule F – Special Figures maximum building height shall be in accordance with Figure No. 44.

x)

Balcony Projections

In addition to the above, a balcony may project to a maximum of 2.0 metres

xi)

Maximum Floor Plate

750.0 square metres for any portion of a building greater than 40.0 metres in height.

xii)

Minimum Gross Floor Area for Commercial Uses

1,000.0 square metres.

xiii)

Percentage of Two and Three Bedroom Units Within Dwelling Units(s), Mixed Use and Multiple Dwelling

A)

A minimum of 23.0 percent of the Dwelling Unit(s), Mixed Use and Multiple Dwellings shall be units with two or three bedrooms.

B)

Where the application of b) viii) A) above results in a numeric fraction, the fraction shall be rounded down to the nearest whole number.

xiv)

Percentage three Bedroom Units Within Dwelling Units(s), Mixed Use and Multiple Dwelling

A)

A minimum of 3.1 percent of the Dwelling Unit(s), Mixed Use and Multiple Dwellings shall be units with three bedrooms.

B)

Where the application of b) ix) A) above results in a numeric fraction,

Schedule 4

Page 4 of 7

the fraction shall be rounded down to the nearest whole number.

3. That Schedule “D” – Holding Provisions be amended by adding the additional Holding Provision as follows:

“193. Notwithstanding Section 11.1 of this By-law, within lands zoned Transit Oriented Corridor Mixed Use Medium Density (TOC1, 926) Zone, identified on Map Nos. 1186 and 1240 of Schedule “A” – Zoning Maps and described as 499 Mohawk Road East, Hamilton, no development shall be permitted until such time as:

a) That the Owner enter into and register an agreement with the City to provide 17 dwelling units, in compliance with the definition of “affordable” in the Urban Hamilton Official Plan, to the satisfaction of the Director of Planning and Chief Planner;

b) That the Owner submit and receive approval of an updated Pedestrian Wind assessment completed by a licenced professional Engineer, in the Province of Ontario, to the satisfaction of the Director of Planning and Chief Planner;

c) That the Owner submit and receive approval of an updated Watermain Hydraulic Analysis Report to identify the modelled system pressures, servicing options and fire flow at pressure districts No. 5 and No. 6 under various boundary conditions and demand scenarios, including but not limited to, improvement to the existing watermains on Mohawk Road East (pressure district No. 6) and Upper Sherman Avenue (pressure district No. 5), to service the proposed development, to the satisfaction of the Director of Development Engineering;

d) That the Owner make satisfactory arrangements with the City’s Growth Management Division and enter into and register on title of the lands, an External Works Agreement with the City for the design and construction of any required improvements to the municipal infrastructure at the Owner’s cost, should it be determined that the upgrades are required to the municipal infrastructure to support this development according to the Functional Servicing Report and Watermain Hydraulic Analysis Report, to the satisfaction of the Director of Development Engineering;

e) That the Owner submit and receive approval of an updated Transportation Assessment demonstrating that the adjacent road network has sufficient capacity to accommodate the proposed development, including any transportation system improvements required to support the development, which will be installed entirely at

Schedule 4

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the Owner’s cost, to the satisfaction of the Manager of Transportation Planning;

f) That the Owner submit and receive approval of an updated Sun/Shadow Study, to the satisfaction of the Director of Planning and Chief Planner; and,

g) That the Owner submit and receive approval of an updated Noise Impact Study, to the satisfaction of the Director of Planning and Chief Planner.”

4. That Schedule “F” – Special Figures is amended by adding Figure No. 44 attached hereto as Schedule “B”.

5. That no building or structure shall be erected, altered, extended, or enlarged, nor shall any building or structure or part thereof be used, nor shall any land be used, except in accordance with the provisions of the Transit Oriented Corridor Mixed Use Medium Density (TOC1, 926, H193) Zone, subject to the special requirements referred to in Section Nos. 2, 3 and 4 of this By-law.

6. That this By-law No. 25- -OLT shall come into force and be deemed to come into force in accordance with Sub-section 34(21) of the Planning Act, either upon the date of passage of this By-law or as otherwise provided by the said Sub-section.

APPROVED this , 2025 ZAC-23-001 and UHOPA-23-001

Schedule 4

Page 7 of 7

Schedule "B"

ATTACHMENT 7

Parties’ Statement of Agreed Facts

56256562.4

63397748.2

14

499 Mohawk Road East Agreed Statement of Facts

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

Applicant and Appellant:

499 Mohawk Inc.

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To permit a residential development consisting of eight multiple dwellings ranging in height from 25- storeys to 8-storeys and townhouses

Reference Number:

UHOPA-23-001

Property Address:

499 Mohawk Road East

Municipality/UT:

Hamilton/Hamilton

OLT Case No.:

OLT-23-000795

OLT Case Name:

499 Mohawk 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:

499 Mohawk Inc.

Subject:

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

Description:

To permit a residential development consisting of eight multiple dwellings ranging in height from 25- storeys to 8-storeys and townhouses

Reference Number:

ZAC-23-001

Property Address:

499 Mohawk Road East

Municipality/UT:

Hamilton/Hamilton

OLT Case No.:

OLT-22-000797

OLT Lead Case No.:

OLT-23-000795

1. The subject property is generally square in shape and is municipally known as 499 Mohawk Road East, in the City of Hamilton.

2. The subject property is located on the north side of Mohawk Road East, at the northwest corner of the Mohawk Road East and Upper Sherman Avenue intersection. The property is approximately 3.95 ha (9.76 acres) in area. The lands are currently developed with one (1) commercial strip mall and surface parking lot which is proposed to be demolished.

Development Proposal

3. A Formal Consultation application was submitted to the City of Hamilton on November 18th, 2021. A copy of the Formal Consultation Document letter was subsequently issued by the City of Hamilton on February 8th, 2022. This letter confirmed that amendment to the Urban Hamilton Official Plan and Zoning By-law were required to accommodate the development proposal.

4. The Formal Consultation letter confirmed the following studies and reports were required in support of the Official Plan & Zoning By-law Amendment applications: an Urban Design Report, a Survey Plan, a Concept Plan, Building Elevations, a Landscape Plan, a Tree Protection Plan, a Functional Servicing Report, a Grading Plan, a Servicing Plan, a Stormwater Management Plan, an Archaeological Assessment, a Planning Justification Report, a Watermain Hydraulic Analysis, a , a Transportation Impact Study, a Sun Shadow Study, a Wind Impact Study, a Noise Impact Study, Draft Official Plan and Zoning By-law Amendments, Record of Site Condition, Hydrogeological Study, Storm Drainage Plan, Soils/Geotechnical Study, Water and Wastewater Servicing Study, Transportation Demand Management Options Report, Cost Acknowledgement Agreement, Design Review Panel Submission Requirements, and a Public Consultation Strategy.

5. The Formal Consultation letter confirmed that an Official Plan Amendment and Zoning By-law Amendment would be required to facilitate the proposed development. An Official Plan Amendment would be required to redesignate the site from ‘District Commercial’ to ‘Mixed Use Medium Density’ in the Urban Hamilton Official Plan. A Site Specific Policy is also required to the ‘Mixed Use Medium Density’ designation, which would permit a maximum height of 25-storeys as proposed by the development proposal. A Zoning By-law Amendment would be required to change the zoning from the District Commercial (C6) Zone to a site specific Mixed Use Medium Density (C5, ) Zone in the City of Hamilton Zoning By-law No. 05-200.

6. The initial Official Plan & Zoning By-law Amendment submission package was provided to the City of Hamilton on October 24, 2022. This proposal entailed two (2) 25-storey multiple dwellings, one (1) 20-storey multiple dwelling, two (2) 15-storey multiple dwellings, one (1) 13- storey multiple dwelling, two (2) 8-storey multiple dwellings and seven (7) 3-storey townhouse dwellings. The proposed multiple dwellings contained 1945 dwelling units, while the proposed townhouses comprised of 50 dwelling units for a total of 1995 dwelling units. The proposal was accommodated by 1995 parking spaces contained in an underground parking garage, 95 short term bicycle parking spaces and 948 long term bicycle parking spaces. The amending By-law included provisions for increased building height, reduced yard setbacks, and a decreased parking space ratio.

7. The City of Hamilton deemed the application complete on November 21, 2022 and circulated the proposal to a complete range of departments and agencies. Following the initial submission, UrbanSolutions held an in-person Neighbourhood Information Meeting at the Ukrainian Catholic Church of the Resurrection at 821 Upper Wentworth Street, Hamilton on February 2nd, 2023. During this meeting, UrbanSolutions informed the surrounding property owners of the details of the proposed development and provided an opportunity for the community to provide their input on the concept.

8. Later, an appeal to the Ontario Land Tribunal (OLT) was filed on August 11th, 2023, on the basis of a non-decision by the City for the Official Plan & Zoning By-law applications.

9. Following the appeal, the applicant continued efforts to address the comments from the City of Hamilton. In doing so, the proposal has been revised. The revised architectural package is included as an Appendix to this Agreed Statement of Facts.

10. Through revisions to the Concept Plan, dated November 12, 2024, the proposed development now entails one (1) 20-storey multiple dwelling, two (2) 20-storey mixed use buildings, two (2) 16-storey multiple dwellings, one (1) 14-storey multiple dwelling, three (3) blocks of 3-storey back-to-back townhouse dwellings and seven (7) 3-storey townhouse blocks. The proposed multiple dwellings contained 1752 dwelling units, while the proposed townhouses comprised of 98 dwelling units for a total of 1,850 dwelling units. The proposal was accommodated by 1912 parking spaces contained in an underground parking garage and surface spaces. Further, 1,054.0 square metres of commercial space is proposed at the base of Buildings B & C.

11. In addition to the revised Concept Plan, the mediation discussions that occurred led to a commitment from the Applicant that 1% of the total units in Building A, B, C, D, G and H will meet the definition of "affordable residential unit" (rented or ownership) as defined under s. 4.1 of the Development Charges Act for the purpose of the Affordable Housing Exemptions to Development Charges, Community Benefits Charges & Parkland Dedication Cash-In-Lieu fees. The Official Plan Amendment shall include a Site Specific Policy requiring the provision of “affordable residential units”. The Zoning By-law Amendment shall include a Holding Provision requiring the Owner to enter into an agreement with the City to provide “affordable residential units”.

Applicable Planning Policy Framework

Planning Act, 1990

12. The Planning Act provides provincial policy processes for the land use planning system of Ontario. Sections 2, 22(1), and 34(10) of the Planning Act have relevance to the subject planning applications. The Act outlines matters of provincial interest in Section 2 and ensures that when an approval authority or the Tribunal make decisions under the Act, regard will be made to any decision made under the Planning Act and any information or material that the approval authority considered in making the decision under Subsection 2.1(a) and 2.1(b).

Provincial Planning Statement, 2024

13. The Provincial Planning Statement (PPS) 2024 provides policy direction on matters of provincial interest related to land use planning and development. The current PPS issued under the authority of Section 3 of the Planning Act requires that land use planning decisions be consistent with the PPS, ensuring that matters of provincial interest, as identified in Section 2 of the Planning Act, are addressed.

Urban Hamilton Official Plan

14. The Official Plan for the City of Hamilton was adopted by Council on July 9, 2009 and approved by the Ministry of Municipal Affairs and Housing (MMAH) on March 16, 2011. The Official Plan

is a planning tool to guide planned change and the physical development of the City over the planning horizon.

15. Bill 150, Planning Statute Law Amendment Act, 2023 received Royal Assent on December 6, 2023 deeming November 4, 2022 the effective date of approval of Official Plan Amendment 167 amending the Urban Hamilton Official Plan and adopted by the City of Hamilton pursuant to By- law 22-146 as modified by Modifications numbered 18, 26 and 36.

City of Hamilton Zoning By-law 05-200

16. The City of Hamilton Zoning By-law No. 05-200 came into effect on May 25, 2005 and is being implemented in stages with additional City-wide amendments made to the By-law in 2016, 2017, 2018, and 2022. The purpose of this Zoning By-law is to implement the policies of the Urban Hamilton Official Plan. The site is currently located in a District Commercial (C6) Zone within the City of Hamilton Zoning By-law No. 05-200

Issues List

Respecting the revised Concept Plan contained in Appendix A to this Agreed Statement of Facts:

17. In response to Original Issue 4, the following policies of the Urban Hamilton Official Plan are satisfied by the revised development proposal:

E.2.0 – Urban Structure

The Official Plan Amendment shall include a Site Specific Policy to permit a maximum height of 20 storeys. The Zoning By-law Amendment shall include a maximum building height of 3-storeys (9.5 metres) with exceptions to permit one, 20-storey (63 metres) multiple dwelling, two 20-storey (63 metres) mixed use buildings, two 16-storey (50 metres) multiple dwellings, and one 14-storey (44 metres) multiple dwelling, which will be delineated in a Special Figure. The Zoning By-law Amendment shall include building setbacks and building stepbacks as shown on the revised Concept Plan. The Zoning By-law Amendment shall include a Holding Provision for a revised Sun/Shadow Study and revised Wind Impact Study. As such, the revised Concept Plan meets the planning function of the urban structure for the subject lands. The proposed scale and density of the revised Concept Plan is compatible with the existing character and function of the neighbourhood. The proposal complies with Section E.2.0 of the Urban Hamilton Official Plan.

B.2.4.1.4 – Residential Intensification Criteria

The Official Plan Amendment shall include a Site Specific Policy to permit a maximum height of 20 storeys. The Zoning By-law Amendment shall include a maximum building height of 3-storeys (9.5 metres) with exceptions to permit one, 20-storey (63 metres) multiple dwelling, two 20-storey (63 metres) mixed use buildings, two 16-storey (50 metres) multiple dwellings, and one 14-storey (44 metres) multiple dwelling, which will be delineated in a Special Figure. The Zoning By-law Amendment shall include building setbacks and building stepbacks as shown on the revised Concept Plan. The Zoning By-law Amendment shall include unit mix regulations to ensure a that a minimum of 20% of the dwelling units in Building A, B, C, D, G, and H contain at least two bedroom or three

bedrooms and that a minimum of 2% of the dwelling units in Building A, B, C, D, G, and H contain at least three bedrooms. The proposed townhouses, which represents 5% of the total units, are also proposed as three bedroom or larger units. The Zoning By-law Amendment shall include a Holding Provision for a revised Sun/Shadow Study, a revised Wind Impact Study, a revised Watermain Hydraulic Assessment, and an External Works Agreement. As such, the revised Concept Plan meets the criteria for residential intensification within the built-up area. The revised Concept Plan builds upon desirable established patterns, provides a range of dwelling types, is compatible with the surrounding area, achieves the planned urban structure, there is planned water, wastewater, and stormwater capacity, and it complies with the other applicable policies. The proposal complies with Section E.2.4.1.4 of the Urban Hamilton Official Plan.

B.3.2.4.9 – General Policies for Urban Housing

The Zoning By-law Amendment shall include unit mix regulations to ensure a that a minimum of 20% of the dwelling units in Building A, B, C, D, G, and H contain at least two bedroom or three bedrooms and that a minimum of 2% of the dwelling units in Building A, B, C, D, G, and H contain at least three bedrooms. The proposed townhouses, which represents 5% of the total units, are also proposed as three bedroom or larger units. Accordingly, a minimum of 25% of the proposed units are two bedroom or larger. As such, the proposed multi-unit residential buildings will contain a mix of unit sizes and complies with policy E.3.2.4.9 of the Urban Hamilton Official Plan.

B.3.3 – Urban Design Policies

The Official Plan Amendment shall include a Site Specific Policy to permit a maximum height of 20 storeys. The Zoning By-law Amendment shall include a maximum building height of 3-storeys (9.5 metres) with exceptions to permit one, 20-storey (63 metres) multiple dwelling, two 20-storey (63 metres) mixed use buildings, two 16-storey (50 metres) multiple dwellings, and one 14-storey (44 metres) multiple dwelling, which will be delineated in a Special Figure. The Zoning By-law Amendment shall include building setbacks and building stepbacks as shown on the revised Concept Plan. The Zoning By-law Amendment shall include a Holding Provision for a revised Sun/Shadow Study and revised Wind Impact Study. As such, the proposal is compatible with the existing environment, promotes compatible intensification, relates to the urban structure, respects existing character, promotes quality design, demonstrates understanding of character of place, complementing existing massing patterns, creating transition in scale, minimizing wind and shadow impacts, and creating a comfortable pedestrian environment. The proposal complies with policies B.3.3.1.5, B.3.3.1.8, B.3.3.2.1 a), B.3.3.2.3 a), B.3.3.2.3 b), B.3.3.2.3 f), B.3.3.2.6 d), B.3.3.3.1,

B.3.3.3.2 a), B.3.3.3.2 c), B.3.3.3.3, and B.3.3.3.5 e) of the Urban Hamilton Official Plan

B.3.6.3.7 – Road and Railway Traffic Noise and Vibration

A Noise Impact Study, prepared by HGC Engineering Limited dated September 12, 2022, was submitted in support of the proposed development. The Zoning By-law Amendment shall include a Holding Provision requiring a revised Noise Impact Study. As such, the proposal complies with policy

B.3.6.3.7 of the Urban Hamilton Official Plan.

B.3.6.3.8 – Road and Railway Traffic Noise and Vibration

The Noise Impact Study, prepared by HGC Engineering Limited dated September 12, 2022, was submitted in support of the proposed development. The Zoning By-law Amendment shall include a Holding Provision requiring a revised Noise Impact Study. As such, the proposal complies with policy B.3.6.3.8 of the Urban Hamilton Official Plan.

Section C.4.2 – Integrated Transportation Network

A Transportation Impact Analysis, prepared by Paradigm Transportation Solutions Limited dated August 2022, was submitted in support of the proposed development. The Zoning By-law Amendment shall include a Holding Provision requiring a revised Transportation Impact Analysis. As such, the proposal complies with Section C.4.2 of the Urban Hamilton Official Plan.

Section C.5.3 – Lake-based Municipal Water and Wastewater Systems

Appropriate grading, servicing, stormwater management for the proposed development will be addressed through the future Site Plan process and applicable conditions of Site Plan approval. A Watermain Hydraulic Assessment, prepared by C3 Water Inc. dated August 31, 2022, was submitted in support of the proposed development. The Zoning By-law Amendment shall include a Holding Provision requiring a revised Watermain Hydraulic Assessment and an External Works Agreement. As such, the proposal complies with Section C.5.3 of the Urban Hamilton Official Plan..

E.4.6.1 and E.4.6.4 – Mixed Use Medium Density Designation – Function

The Zoning By-law Amendment shall include a minimum commercial floor area of 1,000 square metres. The Zoning By-law Amendment shall include a Holding Provision for a revised Sun/Shadow Study and revised Wind Impact Study. As such, the proposal provides commercial uses for the surrounding community and creates a vibrant people place. The proposal complies with policies

E.4.6.1 and E.4.6.4 of the Urban Hamilton Official Plan.

E.4.6.8 and E.4.6.9 – Mixed Use Medium Density Designation – Scale

The Official Plan Amendment shall include a Site Specific Policy to permit a maximum height of 20 storeys. The Zoning By-law Amendment shall include a maximum building height of 3-storeys (9.5 metres) with exceptions to permit one, 20-storey (63 metres) multiple dwelling, two 20-storey (63 metres) mixed use buildings, two 16-storey (50 metres) multiple dwellings, and one 14-storey (44 metres) multiple dwelling, which will be delineated in a Special Figure. The Zoning By-law Amendment shall include building setbacks and building stepbacks as shown on the revised Concept Plan. The Zoning By-law Amendment shall include increased long term bicycle parking. The Zoning By-law Amendment shall include a Holding Provision for a revised Sun/Shadow Study, revised Wind Impact Study, and for the Owner to enter into an agreement with the City to provide “affordable residential units”. The Minutes of Settlement shall include clauses for the provision of sustainable building measures including LEED Silver Certification, or equivalent, geothermal heat exchange, electric vehicle charging stations and low impact design features. As such, the proposal demonstrates that additional height is appropriate and the proposal complies with policies E.4.6.8 and E.4.6.9.

E.4.6.15 – Mixed Use Medium Density Designation – Scale

The proposed development has been revised to incorporate 1,054.0 square metres of commercial space to serve the surrounding community. The Zoning By-law Amendment shall include a minimum commercial floor area of 1,000 square metres. Accordingly, the development is no longer proposing the replacement of retail and service commercial uses with exclusively residential land uses and complies with policy E.4.6.15 of the Urban Hamilton Official Plan.

E.4.6.22 – Mixed Use Medium Density Designation – Design

The inclusion of 1,054 square metres of commercial space in the proposed development secures the provision of a mix of uses on site. The Zoning By-law Amendment shall include a minimum commercial floor area of 1,000 square metres. Accordingly, the development proposal complies with policy E.4.6.22 of the Urban Hamilton Official Plan.

E.4.6.24 – Mixed Use Medium Density Designation – Design

The Official Plan Amendment shall include a Site Specific Policy to permit a maximum height of 20 storeys. The Zoning By-law Amendment shall include a maximum building height of 3-storeys (9.5 metres) with exceptions to permit one, 20-storey (63 metres) multiple dwelling, two 20-storey (63 metres) mixed use buildings, two 16-storey (50 metres) multiple dwellings, and one 14-storey (44 metres) multiple dwelling, which will be delineated in a Special Figure. The Zoning By-law Amendment shall include building setbacks and building stepbacks as shown on the revised Concept Plan. The Zoning By-law Amendment shall include a Holding Provision for a revised Sun/Shadow Study. As such, the proposal respects the built form of adjacent neighbourhoods by providing a gradation in building height and density and minimizing the effects of shadowing and overview. The proposal complies with policy E.4.6.24 of the Urban Hamilton Official Plan.

E.4.6.29 – Mixed Use Medium Density Designation – Design

The proposed development does not present adverse impacts to public view corridors or public views of the Niagara Escarpment as the subject lands are located on top of the Niagara Escarpment, approximately 2000.0 metres from the escarpment brow. For these reasons, the requirement for a Visual Impact Assessment to be completed was waived by City Staff on February 2, 2022. Further, there are no identified public view corridors, registered or designated cultural heritage resources or registered or designated cultural heritage landscapes in close proximity to the site where there would be potential for impacts to public views as a result of the development. Accordingly, the orientation, design and massing of the development do not adversely impact public view corridors and complies with policy E.4.6.29 of the Urban Hamilton Official Plan.

E.4.7.9 – District Commercial Designation – Scale

The proposed development has been revised to incorporate 1,054.0 square metres of commercial space to serve the surrounding community. The Zoning By-law Amendment shall include a minimum commercial floor area of 1,000 square metres. Accordingly, the development is no longer

proposing the replacement of retail and service commercial uses with exclusively residential land uses and complies with policy E.4.7.9 of the Urban Hamilton Official Plan.

F.1.9.1 & F.1.9.2 – Bonusing Provisions and Transfer of Development Rights

The proposed development complies with F.1.9.1 and F.1.9.2 of the Urban Hamilton Official Plan as community benefits have been incorporated into the development in acknowledgement of the proposed height and densities, and the proposed height and densities remain in compliance with the goals and policies of the Urban Hamilton Official Plan. These community benefits include the incorporation of a privately owned public space at the southeast corner of the site and a commitment from the applicant that 1% of the total units in Building A, B, C, D, G and H will meet the definition of "affordable residential unit" (rented or ownership) as defined under s. 4.1 of the Development Charges Act. The Official Plan Amendment shall include a Site Specific Policy requiring the provision of “affordable residential units”. The Zoning By-law Amendment shall include a Holding Provision requiring the Owner to enter into an agreement with the City to provide “affordable residential units”. The community benefits offered complies with the community benefits outlined under F.1.9.2 of the Urban Hamilton Official Plan.

18. Original Issue 5 can be revised to remove sub-issues (a) through (e) as a majority of the internal roadway has been reduced to 6-metres in width and the areas where the internal roadway has been maintained at 8-metres in width is justified by the need to provide enough space to accommodate waste collection and emergency service vehicles on site. The proposed driveway width of 10-metres is justified to accommodate enough space to support turning movements during ingress and egress from the site as well as the turning radii of waste collection and emergency service vehicles. The proposed layout of loading spaces, underground ramps and the underground parking arrangement has been adjusted through mediation discussions to represent an appropriate design of the site. Further, the proposed laybys along the Mohawk Road East frontage have been removed and 1.5 metre sidewalks have now been provided along the internal roadway for the entirety of the site. Further site design details can be determined at the Site Plan Control stage.

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