Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 05, 2025 CASE NO(S).: OLT-24-000599

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Mario Roque Subject: Minor Variance Description: To permit a residence in the basement of retreat facility Reference Number: GL/A-23:250 Property Address: 3355 Golf Club Road Municipality/UT: City of Hamilton OLT Case No.: OLT-24-000599 OLT Lead Case No.: OLT-24-000599 OLT Case Name: Roque v. Hamilton (City)

Heard: April 25, 2025, by Video Hearing

APPEARANCES:

Parties Mario Roque City of Hamilton

Counsel Russell Cheeseman Stephanie Fleming Melanie Benedict

Memorandum of oral DECISION delivered BY STEVEN T. MASTORAS ON April 25, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter is before the Tribunal as a Settlement proposal (“Settlement”) under s. 45(12) of the Planning Act (“Act”) resulting from a Minor Variance appeal (“MVA”) of a Committee of Adjustment (“COA”) decision to defer the matter relating to the property municipally known as 3355 Golf Club Road (“Subject Property”), in the City of Hamilton (“City”).

2The Tribunal previously approved a Site-Specific Zoning By-law Amendment (“ZBA”), on January 23, 2023, related to a development proposal submitted by Paradise Fields, allowing an “Agri-Tourism Retreat.”

3This MVA followed from the above referenced COA deferral, on two separate occasions, and is the subject of an application by Mario Roque (“Applicant” / “Appellant”) seeking permission to allow a Farm Labour Residence in the basement of the approved “Agri-Tourism Retreat.” The Tribunal noted that there is also an updated Site Plan application (“SPA”) ongoing with the City, and currently under consideration, awaiting a Tribunal decision relating to this Settlement.

4This was the first event formally before the Tribunal related to the MVA, as a Hearing, established to allow for any other requests for Party or Participant status requests, or any other public input. No other requests were evident seeking Status at the Hearing, and the matter proceeded.

5The Tribunal considered the following information as Exhibits marked below:

• Exhibit 1 – Witness Statement by Affidavit from Nick Wood (signed, April 22, 2025);
• Exhibit 2 – Applicant’s Book of Documents (April 23, 2025);
• Exhibit 3 – Minutes of Settlement (April 23, 2025); and,
• Exhibit 4 – Supplemental Evidence to the Affidavit (April 25, 2025)

THE VARIANCES

6The MVA was seeking permission for the above noted use (paragraph [3]), located at the southwest portion of the Subject Property, containing 10 one-bedroom units, shared washrooms, and a staff lounge, all of which remain as design elements of the SPA.

7More specifically, the MVA was seeking to permit the following variances:

a) A Farm Labour Residence on a lot without an existing permanent principal farm dwelling, whereas a Farm Labour Residence is only permitted on a lot within an existing permanent principal farm dwelling;

b) A Farm Labour Residence in the basement of an “Agri-Tourism Retreat” building, whereas only an accessory detached dwelling of temporary construction and an accessory detached bunk house of temporary construction are permitted; and,

c) A Farm Labour Residence with a maximum floor area of 326 square metres (“m²”) with a maximum number of 10 units.

8Furthermore, having noted the importance of the approved ZBA now in effect, the Tribunal considered submissions regarding a recently revised variance request, within the terms of the Settlement, and the related Notice of the amendment provisions pursuant to s. 45(18.1) and 45(18.1.1) of the Act, as to how the MVA had been modified and replaced with a single variance request for:

1. A maximum gross floor area of 435 m² with a maximum number of 10 units shall be permitted for a Farm Labour Residence in the basement of an “Agri-Tourism Retreat” building instead of the requirement that individual Farm Labour Residence units shall have a maximum gross floor area of 200.0 m² (“Variance”).

9The Tribunal accepted submissions from Counsel regarding the above referenced provisions of the Act and with the consent of the Parties, directed that: the amendment to the original MVA establishing the updated Variance request as part of the Settlement, met these statutory provisions, and considered the Settlement, as requested.

LEGISLATIVE FRAMEWORK

10An Appeal pursuant to s. 45 of the Act is a hearing de novo. The Appellants bear the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested Variance:

1. Maintains the general intent and purpose of the Rural Hamilton Official Plan (“RHOP”);
2. Maintains the general intent and purpose of the City Zoning By-law No. 05-200 (“CZBL”);
3. Is desirable for the appropriate development or use of the land, building or structure; and,
4. Is minor in nature.

11In addition, s. 3(5) of the Act requires the Tribunal’s Decision to be consistent with the Provincial Planning Statement 2024 (“PPS”) and must also have regard to the matters of Provincial interest as set out in s. 2 of the Act, as well as for the deferral decisions of the COA and the information considered while making its decision, as set out in s. 2.1(1) of the Act.

THE SETTLEMENT

12The Settlement before the Tribunal is requesting that the Variance is allowed, and:

1. The proposed Variance to the CZBL, be hereby approved; and,
2. A condition requiring that the proposed Variance will only be permitted as accessory to an Agricultural use should be added to the Order.

PLANNING EVIDENCE

13Nick Wood appeared before the Tribunal, in his capacity as Vice President, Development Planning at Corbett Land Strategies Inc., and was duly qualified to provide expert Witness opinion evidence in the area of Land Use Planning, on behalf of both Parties. He confirmed that he was originally retained by the Appellants on August 22, 2024, and had not previously appeared before the COA on the original variance requests.

14The Witness briefly provided a brief overview of the background to the matter, and how the Variance request has arisen following the Site Specific ZBA process. He confirmed that since his engagement, the Settlement, agreed to by the Parties is the result of extensive discussions pursued through various forms, during the lead up to this Hearing as it meets the Legislative Framework requirements.

THE PPS AND SECTION 2 OF THE ACT

15Although the Witness did not submit evidence related to the Settlement in the context of the PPS or s. 2 of the Act in his witness statement, the Tribunal welcomed his oral submissions on these two important legislative requirements and requested a supplemental submission following the Hearing (Exhibit 4).

16Regarding the PPS, the Witness opined that the Variance is consistent with section 2.6(d) and 2.6.4, ensuring this related agricultural use is appropriate and is permitted, achieving the standards established in the Guidelines.

17The Witness also importantly noted that the relevant sections included:

(a) protection of ecological systems, including natural areas, features and functions; (b) the protection of agricultural resources of the Province; (c) the supply, efficient use, and conservation of energy and water; (f) the adequate provision and efficient use of communication, transportation, sewage and water services, and waste management systems; (j) the adequate provision of a full range of housing, including affordable housing; and, (r) the promotion of built form that is well-designed encourages a sense of place.

18The Witness further opined around the importance of the creation of housing, minimizing the potential impact on agricultural and ecological resources, and with emphasis on the significance of keeping the proposed Farm Labour Residence within the “Agri-Tourism Retreat” in the amended Variance.

THE FOUR TESTS

19At a high level, the Witness briefly outlined his opinion regarding the statutory ‘four tests’, which were consistent with his more detailed witness statement (Exhibit 1) throughout the Hearing and is generally summarized below.

Does the Variance Maintain the General Intent and Purpose of the RHOP?

20The Witness reiterated that overall, the Variance is necessary to permit a unique form of Farm Labour Residence which, given the updates to the RHOP Farm Labour Residences, are very much in keeping with the planning policy and the direction of the City.

Does the Variance Maintain the General Intent and Purpose of the CZBL?

21The Witness restated the significance of how the ZBA, with its provisions previously approved, created the necessity for the Variance and proper regard to maintaining the general intent and purpose of the recently revised objectives of the CZBL, which are now in effect.

22Furthermore, the approved Holding provision in the ZBA allowed time for the Applicant to address an archeological and hydrogeological assessment to the satisfaction of the City as part of the ZBA.

Is the Variance Desirable for the Appropriate Development or Use of the Land?

23Important to this test is that the new facility will eliminate the need for additional buildings at the Subject Property in order to provide housing for labourers. The Witness asserted that the residential units are entirely within the “Agri-Tourism” facility, almost entirely reducing any adverse impact on agricultural lands.

24Furthermore, the residential units align with the agricultural nature of the business operations, minimizing impact on the surrounding area.

Is the Variance Minor in Nature?

25Mr. Wood concluded that based on the details referenced in his witness statement and through his oral testimony, the Variances would not alter the ongoing agricultural use on the Subject Property and ensure its continued success. Farming would remain the predominant use on the Subject Property and final details will be confirmed through the SPA review process as required by the City.

FINAL SUBMISSIONS

26In final submissions, Counsel for both Parties agreed that resulting from this Oral Decision, correspondence would also follow regarding the formal withdrawal of a separate matter (OLT-24-000880). This matter was an appeal of City Zoning By-law No. 24-137, which was received on April 25, 2025. As referenced in greater detail from the letter, this file was related to separate appeals, previously withdrawn, related to two Official Plan Amendments (“OPAs”), including OPA No. 218 and OPA No. 41, by the same Appellant.

CONCLUSIONS AND ORDER

27Based on the uncontroverted evidence of the Witness, which reflects the efforts between both Parties through this Settlement, the Tribunal finds that the Variance is consistent with the PPS and has appropriate regard for s. 2 of the Act. The Application meets the statutory ‘four tests’ including that the Variance: maintains the general intent and purpose of the RHOP; maintains the general intent and purpose of the CZBL; is desirable for the appropriate development or use of the land, building, or structure; and is minor in nature. Appropriate regard has also been given to the two deferral decisions of the COA, as required under the Act.

ORDER

28THE TRIBUNAL having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required.

29THE TRIBUNAL ORDERS that:

1. The Appeal by Mario Roque is allowed and the Variance to the City of Hamilton’s Comprehensive Zoning By-law No. 05-200, as set out in Schedule 1 to this Order below, is hereby approved; and,
2. The Variance will only be permitted as an accessory use to this Agricultural use, as a condition set out below in Schedule 2 to this Order.

“Steven T. Mastoras”

STEVEN T. MASTORAS 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.

SCHEDULE 1

A maximum gross floor area of 435 square metres with a maximum number of ten (10) units shall be permitted for a farm labour residence in the basement of an “Agri-Tourism Retreat” building instead of the requirement that individual farm labour residence units shall have a maximum gross floor area of 200.0 square meters.

SCHEDULE 2

A Farm Labour Residence shall not be a permitted accessory use to an “Agri-Tourism Retreat” building use on the Subject Lands, except for the purposes of this Agricultural use.