499 Mohawk Inc. v. Hamilton (City), 2025 CanLII 24806

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 21, 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

OLT Lead Case No: OLT-23-000795

Heard: March 17, 2025, in writing

APPEARANCES:

Parties

Counsel

499 Mohawk Inc.

P. Harrington M. Helfand

City of Hamilton

P. Krysiak

DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

BACKGROUND

1This Decision and Order relate to a written Motion to consider a settlement proposal concerning appeals brought pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) from the failure of the City of Hamilton (“City”) to render decisions within the prescribed timelines regarding applications for an Official Plan Amendment (“OPA”) and Zoning by-law Amendment (“ZBA”) (together referred to as the “applications”). The appeals were filed by 499 Mohawk Inc. (“Appellant”) regarding lands municipally known as 499 Mohawk Road East (“subject property”).

2The subject property is approximately 3.9 hectares in size with 196.2 metres (“m”) of frontage along Mohawk Road East and 117.5 m of frontage along Upper Sherman Avenue. The subject property is currently improved with a one-storey commercial strip mall with surface parking. The Urban Hamilton Official Plan (“UHOP”) designates the subject property as Neighbourhoods in Schedule E – Urban Structure and District Commercial in E-1 – Urban Land Use Designations. The City Zoning by-law No. 05-200 (“City ZBL”) zones the subject property as “District Commercial” (C6).

3The areas to the north and west of the subject property are existing neighbourhoods with one-storey and two-storey single detached residential dwellings. Upper Sherman Avenue is located east of the subject property and consists of a five-lane roadway identified in the UHOP as a minor arterial road and further east are a mix of detached residential dwellings and commercial buildings. South of the subject property is Mohawk Road East, which is a five-lane roadway identified in the UHOP as a major arterial road and further south are a mix of apartment buildings and a gas station with an auto centre.

4At the first Case Management Conference (“CMC”) convened on November 15, 2023, the Tribunal granted Participant status to 15 individuals. A second CMC was convened on March 19, 2024, wherein a 10-day hearing of the merits was scheduled to commence on March 10, 2025. The Parties engaged in several mediation sessions and without prejudice discussions which led to the Appellant, with the consent of the City, requesting that the hearing be reduced to five days commencing on March 17, 2025. As a result of the Parties continued hard work and positive communications, the Tribunal was advised that the Parties had reached a settlement that was endorsed by City Council on March 5, 2025.

SETTLEMENT

5The Appellant filed a Settlement Motion Record on March 13, 2025, together with the Notice of Settlement Motion, the Affidavit of Roxy Shiell sworn on March 11, 2025, with composite exhibits, the Affidavit of Matt Johnston sworn on March 11, 2025, with composite exhibits and a draft Order. The Settlement Motion Record was entered as Exhibit 1 to the proceedings.

6Ms. Shiell is a registered professional planner with over 10 years of experience in planning and urban design matters. She is a Principal with Bousfields Inc. and the Tribunal qualified her to provide written opinion evidence on urban planning matters, on consent of the Parties. Mr. Johnston has been a registered professional planner in Ontario since 2006 and has over 20 years of land use planning experience. He is a Principal with UrbanSolutions Planning & Development Consultants Inc. and the Tribunal qualified him to provide written opinion evidence on land use planning, on consent of the Parties.

Proposed Settlement

7In October 2022, the Appellant filed an OPA and ZBA to facilitate the development of built forms ranging from three-storey townhouse blocks to 25-storey residential buildings (“original proposal”). The original proposal was deemed complete by the City on November 21, 2022. As a result of various public meetings and circulations of the original proposal, the Appellant received several public comments, City department comments and agency comments. On August 11, 2023, the Appellant appealed the City’s non-decision on the applications to the Tribunal.

8In an effort to address the comments received on the original proposal, the Appellant and the City engaged in a number of without prejudice discussions, in addition to Tribunal-led mediation. The continued efforts and positive discussions among the Parties resulted in a settlement recommendation being presented to City Council on March 5, 2025.

9The revisions to the original proposal resulted in a proposal comprised of a mix of low-rise, mid-rise and high-rise buildings which include three 20-storey buildings, two 16-storey buildings, one 14-storey building, seven 3-storey townhouse blocks and three 3-storey back-to-back townhouse blocks. The buildings propose a total of 1,850 dwelling units with 1,912 parking spaces and 1,054 square metres (“m²”) of commercial space. (“proposed development”).

10The proposed ZBA includes the use of a Holding Provision to secure commitments relating to affordable residential housing units and further updated studies relating to final design matters.

11To facilitate the proposed development, an OPA and ZBA are required substantially in the forms set out in Attachment 1 and Attachment 2. The OPA is required to redesignate the subject property from District Commercial to Neighbourhoods under the E-1 – Urban Land Use Designations of the UHOP. The Neighbourhoods designation would permit a maximum height of 20 storeys. The ZBA is required to rezone the subject property from “District Commercial” (C6) to a site specific “Transit Oriented Corridor Mixed Use Medium Density” (TOC1,) and provide site specific provisions for items such as increased building height, reduced yard setbacks and balcony projections.

Evidence

12Ms. Shiell prepared an Affidavit in support of the settlement, which was filed as Tab 2 in Exhibit 1. Mr. Johnston prepared an Affidavit in support of the settlement, which was filed as Tab 3 in Exhibit 1. In their affidavits, both experts provided detailed contextual, planning, and urban design rationale in support of the proposed development.

13Mr. Johnston provided a detailed analysis of the proposed development against relevant policies and concluded that the OPA and ZBA that will facilitate the proposed development will have sufficient regard for matters of Provincial interest set out in s. 2 of the Act, are consistent with the Provincial Planning Statement, 2024 (“PPS”), implement the goals of the UHOP and implement the intent of the City ZBL.

14In his written Affidavit, Mr. Johnston reviewed s. 2 of the Act in its entirety and it was his opinion that approval of the OPA and ZBA would have regard for matters of Provincial interest as outlined in s. 2. Some examples Mr. Johnston pointed to include s. 2(j), noting that the proposed development will significantly contribute to ensuring that a range of dwelling types are made available in the community. Mr. Johnston also opined that this would improve the range of housing and residential densities available. The provision of 1,054 m² of commercial space has regard for s. 2(k) as it will contribute to employment opportunities in the area and Mr. Johnston opined that the employment opportunities would be provided in a more efficient, compact, mixed-use format.

15Mr. Johnston explained that the PPS guides appropriate development while protecting resources of Provincial interest, public health and safety and the quality of the natural and built environment. It was Mr. Johnston’s opinion that the OPA and ZBA are consistent with the policies of the PPS. He opined that the close proximity of the subject property to parks, open space and other amenities combined with the planned amenities in the proposed development, will serve the long-term needs of the community pursuant to s. 2.1 of the PPS. Further, the approach taken by the City and the Appellant through the comprehensive review of the OPA and ZBA with input from the public and relevant stakeholders ensures a coordinated approach to the planning of the subject property.

16In his affidavit, Mr. Johnston explained that the UHOP was amended through the approval of UHOP Amendment 167 on November 4, 2022 (“OPA 167”). It is Mr. Johnston’s opinion that the proposed development, which is facilitated by the ZBA, conforms with the UHOP as amended by OPA 167. In his written affidavit, he provided a very detailed and helpful review of the relevant policies of the UHOP. In particular, Mr. Johnston analyzed the definition of “compatibility/compatible” in the UHOP and opined that the proposed development can exist in harmony within the area of the subject property which was demonstrated by the various reports and studies filed with the applications. He explained that the Holding Provision included in the ZBA requires many of the studies to be revised to demonstrate that no adverse impacts will result from the proposed development.

17Ms. Shiell noted that the OPA and ZBA which will facilitate the proposed development conform to the urban design policies of the UHOP as the proposed height, form and setbacks are compatible with the physical context of the surrounding area. Further, the proposed loading, vehicle access and parking is appropriate and desirable from an urban design perspective as they will be shielded from both the public realm and adjacent sensitive uses to mitigate potential impacts. Ms. Shiell opined that the proposed development constitutes appropriate intensification of an underutilized site located in a Neighbourhood designation along two arterial roads which are well served by transit. The proposed development appropriately transitions to adjacent sensitive uses through the use of setbacks and stepbacks, which also mitigate shadow impacts.

18In her written Affidavit, Ms. Shiell recommended that the Tribunal allow the appeal as it was her opinion that the OPA and ZBA which will facilitate the proposed development are appropriate and desirable from an urban design standpoint.

Participant Concerns

19As noted above, 15 Participants were granted status at the first CMC. Seven of the Participants filed statements in accordance with the deadline set out in the Procedural Order which governed the proceedings. In their written affidavits, both Ms. Shiell and Mr. Johnston addressed the concerns raised in the seven Participant statements filed with the Tribunal. The concerns raised include inter alia built form, visual impacts, setbacks, shadow impacts, wind impacts, traffic, parking, lack of on-site open/green space, infrastructure capacity and destruction of existing trees and landscaping.

20Ms. Shiell explained that the proposed tall buildings are setback from adjacent low-rise residential a minimum of 40 m, which exceeds that required by the Tall Buildings Guidelines. In addition, the tallest buildings are situated away from adjacent low-rise dwellings to ensure that they are within the 45-degree angular plane. All of this combines to limit issues related to access to sunlight, skyviews and potential shadow impacts. Mr. Johnston also addressed these concerns and noted that the massing locations, setbacks from property lines and use of stepbacks are regulated in the ZBA to ensure that the site design is secured, thereby mitigating any privacy impacts to the surrounding properties.

21Ms. Shiell opined that the Holding Provision included in the ZBA responds to concerns related to wind and shadow impacts as new studies will be required confirming no adverse impacts to the surrounding area.

22Mr. Johnston noted that the Holding Provision also requires a revised Transportation Impact Study meaning that the proposed development will not be permitted to proceed until it has been demonstrated that it will not result in unacceptable traffic impacts. Further, he explained that the number of proposed parking spaces exceeds that required in the City ZBL and this excess parking combined with existing transit options will mitigate any parking on adjacent streets.

23In his written affidavit, Mr. Johnston spoke to infrastructure capacity concerns explaining that it would be addressed through the future site plan process. He did note that the Holding Provision requires revised assessments which will ensure that the municipal infrastructure can support the proposed development without adverse impacts to the surrounding neighbourhood.

24Ms. Shiell explained that concerns related to lack of green or open space have been addressed in the revisions as the proposed development will incorporate a 3,000 m² outdoor open space supported by an additional 8,100 m² of other amenity space throughout the subject property. Ms. Shiell and Mr. Johnston noted that this amounts to approximately 6.0 m² of amenity space per unit, which exceeds that required in the City ZBL.

25Ms. Shiell and Mr. Johnston opined that the OPA and ZBA that will facilitate the proposed development will contribute to the achievement of the City’s planning objectives, satisfy all requisite legislative tests, overall are representative of good planning and are in the public interest.

ANALYSIS AND DISPOSITION

26The Tribunal accepts the uncontested opinion evidence of Ms. Shiell and Mr. Johnston and finds that the proposed OPA and ZBA have appropriate regard for matters of provincial interest pursuant to s. 2 of the Act.

27Based on the evidence, the Tribunal finds that the design of the proposed development encourages a sense of place and provides public spaces of high quality which are safe, accessible, attractive and vibrant.

28The proposed OPA and ZBA are consistent with the PPS as they will facilitate the intensification of an underutilized site which is well served by existing infrastructure and is located in an urban area. The proposed instruments conform with and implement the policies of the UHOP and will facilitate a development that will contribute to the provision of a wide range of housing types and densities through a site specific ZBA. Further the Tribunal was persuaded by the opinions of Ms. Shiell and Mr. Johnston that the ZBA prescribes built forms and a site configuration that is compatible with the surrounding area regarding use, scale and character, and when combined with the OPA, represent good planning.

29In considering the matter, the Tribunal accepts the opinions of both experts that the OPA and ZBA which will facilitate the proposed development represent appropriate intensification of a currently underutilized site and incorporates a compatible built form which transitions to existing sensitive uses. The setbacks and the parking exceed those required in the City ZBL and the subject property has been planned to situate the tallest buildings away from sensitive uses in order to mitigate any potential impacts.

30The detailed concerns raised by the Participants were fully read and considered by the Tribunal. The Tribunal appreciated the thorough review that the experts conducted to address the concerns raised by the Participants. The opinions offered by the experts were persuasive and the Tribunal finds that the concerns raised by the Participants have been adequately mitigated by the site design and through the use of the Holding Provision in the ZBA. Further, many of the concerns raised will be addressed through the site plan approval process.

31The Tribunal finds that the OPA and ZBA which facilitate the proposed development represent good land use planning in the public interest. The Tribunal will allow the appeal and approve the OPA and ZBA for the reasons set out above.

ORDER

32THE TRIBUNAL ORDERS THAT the appeals are allowed in part and:

a) Amendment No. 227 to the Urban Hamilton Official Plan is modified as set out in Attachment 1 to this Order. The Tribunal Orders that Amendment No. 227 to the Urban Hamilton Official Plan is approved as modified; and

b) Directs the Municipality of the City of Hamilton to amend Zoning By-law No. 05-200 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.

33The Tribunal Member may be spoken to if any issues arise implementing this Order.

“C. Hardy”

c. hardy

VICE CHAIR

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