Clayton v Hamilton City

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE: June 01, 2022

CASE NO(S).:

OLT-21-001320

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O.

1990, c. P.13, as amended

Applicant:

Appellant:

Riccardo Persi (Owner of 34 West Ave. N.)

Wayne Clayton

Subject:

Minor Variance

Property Address/Description:

Variance from By-law:

1047-1049 Barton St.

Zoning By-law No. 05-200, as Amended by By-law

No. 10-128

Municipality:

City of Hamilton

Municipal File No.:

OLT Case No.:

SC/A-21:225

OLT-21-001320

OLT Lead Case No.:

OLT Case Name:

OLT-21-001320

Clayton v. Hamilton (City)

Heard:

January 27, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Wayne Clayton

Unrepresented*

(“Appellant”)

Riccardo Persi

Jane Pepino

(“Applicant”)

Matthew Helfand

City of Hamilton

Patrick MacDonald

(‘City”)

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

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INTRODUCTION AND BACKGROUND

[1]

This Decision and Order of the Tribunal determines the Appeal brought by the

Appellant, appealing the decision of the Committee of Adjustment (“Committee”) on July

22, 2021, which authorized minor variances requested by the Applicant.

[2]

The Applicant proposed an industrial development of the property located at

1047-1049 Barton Street in Stoney Creek (“Site”), intending to develop a six-unit, 41-

loading bay warehouse, with related office space and parking areas. Conditional Site

Plan Approval had been obtained from the City on December 11, 2019, but due to the

Applicant’s view that there had been changes in market demand for the proposed units,

a prohibition on truck traffic on Barton Street to the south, and certain factors affecting

ingress and egress, the site plan and concept plan were subsequently altered. With the

changes, loading bays were located on the west side of the building, and office space

and parking were located on the east side. These changes necessitated the request for

minor variances.

[3]

The decision of the Committee was filed at Tab 9 of Exhibit 2. A total of eleven

variances were applied for. The Public Notice listed 12 Variances following the review

of Planning Staff. The variances identified by the Committee, and authorized, were

subject to one condition relating to a Noise Study. The Committee decision also

included five “Notes”, which made reference to a contingent requirement for the

issuance of a building permit. There was also a reference by the Committee to three

barrier free parking spaces being permitted “instead of the minimum required ten (10)

barrier free parking spaces, which was identified in the Public Notice, but ultimately not

required with the variation in the standard parking space regulation and the fact that the

number of barrier free parking spaces is the ratio of that required parking, as varied.

The decision of the Committee further made reference to additional requirements, one

of which appeared to be worded as a condition and two of which suggested that

additional variances might be required. The background to the variances requested,

referred to in the Public Notice and dealt with by the Committee, and the Variances now

before the Tribunal, are addressed below.

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[4]

The Appellant, who owns a residential property immediately to the west of the

Site, filed his appeal with the City on August 11, 2021.

[5]

At the outset of the hearing, the Tribunal noted that aside from those issues

identified by the Appellant, which do reference apparent land use planning grounds, the

Appeal also raised other matters which were not proper considerations for the Tribunal

in this Appeal. These extraneous matters include a number of assertions and

allegations relating to the City’s purported obstructions to the Appellant’s previous

participation in the applications before the City, and fraudulent misrepresentation,

breaches of public trust, and negotiation in bad faith on the part of the City’s planning

and legal staff. The Appellant also called for a judicial inquiry within his Appeal.

[6]

In regard to these non-planning matters, the Appellant was advised that this

Tribunal proceeding is a hearing de novo of the merits of the minor variance application

and that the Tribunal has no jurisdiction over, nor interest in, such other irrelevant

allegations as to the conduct of City staff. As such, the Appellant was advised at the

outset that the Tribunal would be focusing only on the planning merits of the proposed

Development, matters of provincial interest, provincial planning policies and plans

governing the Site and the minor variance application and the four tests under s. 45(1)

of the Planning Act (“Act”).

HEARING

[7]

Prior to the commencement of the hearing, the Appellant raised concerns with

Tribunal staff regarding his participation in the hearing conducted as a Video Hearing

using the GoToMeeting platform. The Appellant previously advised the Tribunal that he

did not own a computer or a cell phone and would not be able to connect to the hearing

using a video feed. The Tribunal subsequently confirmed with the Appellant that his

participation via telephone connection to the hearing would be feasible and this was

acceptable. On the day of the hearing, after a brief delay arising from the Appellant’s

attempt to connect using a rotary phone, he eventually was able to successfully connect

via audio only, and the hearing proceeded without difficulty. The Appellant was in

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possession of hard copies of the documentation, the electronic version of which were

identified as the exhibits in this hearing.

[8]

The Appellant’s evidence was limited to his own testimony and references to

those materials he filed for the hearing (Exhibit 1).

[9]

The City attended as a precaution due to those certain allegations of misconduct

that had been made by the Appellant in his materials filed in support of the Appeal.

However, following the comments of the Panel filtering out these irrelevant matters

regarding the conduct of City Staff, the City’s counsel elected not to participate, but

remained present.

[10] The Applicant called only one witness, Mr. Matt Johnston who filed his curriculum

vitae and Acknowledgement of Expert’s Duty and was qualified by the Tribunal to

provide expert land use planning evidence. Before doing so, and before hearing from

the Appellant, the Tribunal directed that Mr. Johnston first provide non-opinion context

and background evidence, which is summarized below.

[11] The Exhibits to the hearing were received by the Tribunal as electronic PDF

Documents and sequentially marked as follows:

Exhibit

Document

1

2

3

Appellant’s collection of Hearing Material (22 pages)

Applicant’s Document Book (25 Tabs, 317 Pages)

Witness Statement of Matt Johnston dated January 18,

2022

4

5

Affidavit of Service of the Witness Statement and

Applicant’s Document Book (Exhibits 2 and 3) sworn by

Mr. Brandon Petter on January 19, 2022.

Excerpt of the City of Hamilton Zoning By-law, Schedule

C 440 Exception (2 pages)

6

7

8

M3 Zoning Map 1047-1049 Barton Street (1 page)

City of Hamilton By-law No. 10-121 (1 page)

Requested Relief – Variances and Conditions (2 pages)

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[12] For the purposes of this Decision, any references to a numbered “Tab” in this

Decision will be referencing those 25 Tabs within Exhibit 2, the Applicant’s Document

Book.

SPATIAL AND POLICY CONTEXT OF THE APPLICATION

[13] The Tribunal was provided with an overview of the Site by Mr. Johnston with the

assistance of aerial photographs and various visual exhibits in Exhibit 2.

[14] The currently vacant Site is located to the east of McNeilly Road, which runs in a

north-south direction but separated from McNeilly Road by residential lots located on

the east side of the street, one of which is the residence of the Appellant. Across, on

McNeilly Road, are other general and prestige industrial uses mixed with single

detached dwellings.

[15] Barton Street runs along the south side of the property. To the east, there are a

number of industrial/commercial properties, with the closest (1051 Barton St.) being an

asphalt paving company with storage and tractor trailer parking, running the same depth

as the Site. Abutting the Site to the north is an 18-hectare layover facility for GO Transit

Trains and it is anticipated that a future extension of Arvin Avenue will run from west to

east along the north boundary of the Site, thus allowing for a relocation of the entrance

to Arvin Avenue. On the south side of Barton Street, there are farm lands and single

detached dwellings.

[16] The Site and surrounding lands, on the north side of Barton Street, are within the

Urban Boundary and have been gradually evolving with additional employment land

uses being added under that designation. The lands on the south side of Barton Street

were brought into the Urban Boundary in 2013 and are subject to a Secondary Plan

which requires Block planning processes. The Site and the surrounding area are all

contained within Provincially Significant Employment Zone 25, which was established

by the Province in 2019.

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[17] Of relevance to the policy context of the proposed Variances is the site-specific

Prestige Business Park Zone (M3-440) applicable to the Site and “Special Exception

440” under Schedule “C” Special Exceptions to the City’s zoning by-law (hereinafter

referred to in this Decision as “Exception 440”), which contains specific regulations

relating to the location and size of the loading bays and the placement of berms and/or

fencing between the residences on the east side of McNeilly Road and the Site. This

site-specific Prestige Business Park (M3)/Exception 440 Zone (Exhibits 5 and 6) arose

from a matter that was before the Ontario Municipal Board (PL100633) in June of 2011,

and was approved, through a settlement, that included the Appellant as a party (Tab

22).

[18] Exception 440 in the Zoning By-law included a performance standard which

provided that loading spaces on the west elevation of the Site facing the residential lots

to the east were not permitted unless separated by another building. However, if

loading spaces were located within 40 metres (“m”) of the west boundary with the

residential lots on McNeilly Road, the loading space was to be limited to a maximum

length of 10.0 m and were to be screened by a noise attenuation wall equal in length to

the loading space.

THE DEVELOPMENT LAYOUT

[19]

Mr. Johnston also provided an overview of the Development, inclusive of photos

of the Site and surrounding area. The Site is over 41,000 square metres (“sq m”) and

relatively flat with only very minimal changes in grade.

[20] The layout and details of the proposed Development are shown in the Minor

Variance Sketch located at Tab 5, one with the Variances also listed and identified

visually on the Sketch. There will be a total of six large industrial warehouse units each

with loading docks/bays: one with four bays, one with nine bays, and the remaining four

with seven bays each. The office area of each Unit will be facing the east side of the

building and regular vehicle parking will be perpendicular to the east face of the building

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running along the entire length of the building and around to the north and south as

shown on the sketch.

[21] A 9 m deep/width landscaped planting strip will run along the entire west

boundary of the Site, save and except for the driveway entrance located at the

northwest corner fronting onto McNeilly Road. Along the east side of the planting strip a

3.5 m high noise attenuation and visual barrier (greater than the 1.8 m high visual

barrier required by the zoning by-law) is proposed to also run the entire length of the

west side up to the driveway entrance to the north. The resultant area between the

planting strip/barrier to the west and the 41 loading bays, adjacent to the residential

zone to the immediate west, will be utilized as the staging, maneuvering, loading and

parking areas for transports backing into the loading bays.

[22] It is understood, under the conditions of the Development, supported with

security, that once the Arvin Avenue Extension is in place the access onto McNeilly

Road will be closed and replaced with a new driveway entrance onto Arvin Avenue to

the north.

REQUESTED VARIANCES AND RELEVANT CONDITIONS

[23] Mr. Johnston explained the background to the application for the variances, the

identification of the variances that were the subject of the Committee’s decision and the

variances now requested and before the Tribunal in this hearing. The Tribunal has

reviewed and compared: (a) the variances identified in the original application; (b) the

required variances identified and addressed by City Planning Staff; (c) the eventual list

of variances with conditions and notes before, and approved by, the Committee; and (d)

the list of variances now requested and before the Tribunal.

[24] There are 12 variances now before the Tribunal (the “Variances”) in this Appeal,

which were submitted by the Applicant (Exhibit 8), reviewed by Mr. Johnston in his

testimony and summarized in Attachment 1 to this Decision and Order.

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[25] Although the manner and form of the Decision of the Committee identified only

11 variances as approved, the additional “Notes” reflected the 13 variances that had

been applied for with the Planning Staff’s involvement and formed part of the original

Notice. One of the original variances, relating to the barrier free parking spaces, was

removed as being unnecessary since, if the expected approval of Variance 10 on the list

occurred, the number of barrier free parking spaces of three represented compliance

with the required ratio of barrier-free parking spaces to total parking spaces.

[26] Mr. Johnston testified that the “back and forth” that occurred regarding the use of

the temporary west driveway entrance across the lot and onto McNeilly Road, pending

the construction of the Arvin Avenue extension to the north property line, resulted in an

additional variance being omitted. Variance 5 on Attachment 1, relating to the visual

barrier which is proposed to extend along only a portion of the eastern lot line(s) of the

abutting residential lots to the west instead of the entire extent of the eastern lot line(s)

of the abutting residential lots to the west was necessary due to the use of the access

driveway to McNeilly Road.

[27] Mr. Johnston has indicated that in his view, the limited amendment arising from

the final list of requested Variances is minor. The Tribunal has considered the evidence

relating to the application, the prior Committee decision and the current final list of

Variances and is satisfied that the minor amendments, which relate to the west access

driveway and the visual barrier logically being limited to all lot lines save and except for

the lot utilized as the temporary driveway, is indeed minor in the context of the original

application and the Appeal now before the Tribunal. The Tribunal is therefore satisfied

that no further notice is required in accordance with s. 45(18.1.1) of the Act.

[28] Attachment 1 contains three conditions (“Conditions”) to the authorization of the

Variances, proposed by the Applicant and supported by Mr. Johnston’s testimony.

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ISSUES

[29] As an application for minor variances the issue before the Tribunal is whether the

requested Variances meet the four tests set out in s. 45(1) of the Act and should be

authorized by the Tribunal. The Tribunal must accordingly be satisfied, in this Appeal,

that the Variances that would permit the accessory structure: (a) maintain the general

intent and purpose of the Urban Hamilton Official Plan (“UHOP”); (b) maintain the

general intent and purpose of the City’s comprehensive Zoning By-law No. 05-200, as it

was amended, including Exception 440 ( the “ZBL”); (c) are minor; and (d) are desirable

for the appropriate use and development of the Site.

[30] Additionally, the Variances must be consistent with the Provincial Policy

Statement 2020 (“PPS”) as brought into force and conform to the applicable Growth

Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).

[31] The Tribunal must also have regard to matters of Provincial interest and to any

decision made by the Committee as well as all information and material that the

Committee considered in making its decision.

[32] One focus of the Appellant’s planning objections relates to the noise and

disruption that will occur with the loading docks of the proposed Development located

on the west side of the building, and thus to the rear of the Appellant’s property, and

those other residences located on the east side of McNeilly Road. Another planning

issue is the Appellant’s belief that the proposed building on the Site is completely out of

context for an M3 Zone, or within the urban area, and is instead better suited for an M4

zone. Much of the concerns of the Appellant were otherwise unfocused, vague,

conjecture and without specificity. This included such things as the possible existence

of a dump on the Site and the nature of a “clay cap” and conjecture about what might lie

beneath and whether the Arvin Avenue extension would ever be a reality because of his

belief that Metrolinx would never approve such a thing.

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[33] The Appellant’s other bases for the Appeal are related to subjective critical

observations and concerns about such things as: the sufficiency of soil testing on the

site due to the Appellant’s assertion that the Site was previously used as a dump and

never remediated; the manner in which the prior meetings and decision making

processes occurred to exclude or prevent input; concerns about the intended use of the

Site as a warehouse facility and the consequential ills that might follow such as an influx

of rodents, skunks and other pests, dust, and other nuisances impacting the quality of

life of the Appellant and other residents living adjacent to the Site; and the devaluation

of his property.

[34] In his testimony and submissions, the Appellant also referenced the former

Ontario Municipal Board’s (“Board” or “OMB”) lack of authority in prior approvals relating

to the Site and the Board’s improper dealings with the prior matters before it in relation

to zoning performance standards for the Site. The Appellant’s arguments in this respect

relate to a decision of the OMB issued June 28, 2011 (Tab 22), which involved the

Board’s approval of a settlement relating to official plan amendments and zoning by-law

amendments affecting lands inclusive of the Site. The Decision indicates (page 3) that

the Appellant expressly confirmed that he was, at that time, “in agreement with the

settlement and new zoning restrictions”. Those restrictions provided for such things as

setbacks, buffers, walls and berms along the west boundary of the Site, adjacent to the

residential lots through By-law No. 10-128 which gave rise to Exception 440.

EVIDENCE, ANALYSIS AND DISPOSITION

[35] For the reasons that follow, the Appeal is dismissed and the Tribunal finds that

the four tests under s. 45(1) have been satisfied, that the Variances meet the legislative

requirements of the Planning Act, and that the Variances should be authorized subject

to the proposed Conditions.

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Appellant’s Submissions – Prior Decision/Order of the OMB, Permitted Use of the

Site and Impact of the Development/Variances on the Appellant’s Property Value

[36] First, addressing the Appellant’s assertions that what he (and others) agreed to

under the Settlement in 2011 leading to the Decision and Order of the OMB of June 28,

2011, “was not what was put in front of the OMB” and “did not involve zoning” has no

merit in this hearing. This assertion is not particularly relevant since the issues before

the Tribunal in this Appeal do not require, nor permit, the Tribunal to go back in time and

reconsider the 2011 Decision and Order of the OMB. Such statements are also not

supported by the documentary evidence. The amended zoning by-law, which is the

subject of the minor variance application is in force, speaks for itself, was not appealed,

remains in force, and represents part of the planning policy context for the application

for the Variances and the Tribunal’s consideration of the four tests.

[37] On its face, the Appellant’s claims regarding the 2011 settlement are also

contrary to the plain and unequivocal content of the Board’s Decision and the

amendments ordered by the Board under the Settlement. The Appellant claimed in

cross-examination that he did not have a copy of the Decision and was non-responsive

to simple questions put to him by counsel for the Applicant as to his apparent

unfamiliarity with the prior 2011 Order of the OMB implementing zoning amendments.

The Appellant’s responses and position in this regard was, and is, not credible.

[38] The Tribunal can also summarily deal with two of the submissions advanced by

the Appellant. The Appellant’s arguments are that the intended use of the Site as a

warehousing facility is inappropriate and is not relevant to the issues before the

Tribunal. The permitted uses for the Site include the proposed use and is not an issue

in this Appeal. The second submission that the Development and proposed use will

result in a reduction in the value of his property is not a relevant planning issue or

consideration for the Tribunal, as it has confirmed many times in its body of decisions.

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Higher Order Provincial Policy – Consistency, Conformity and Matters of

Provincial Interest

[39] Before turning to the four tests, and the planning merits of the Variances, the

Tribunal can succinctly deal with the policy requirements and mandate of the Tribunal

with respect to the Planning Act.

[40] The Tribunal received direct evidence from Mr. Johnston that there are no higher

order Provincial policy issues or concerns arising from the Application and this Appeal.

Mr. Johnston opined, and the Tribunal finds, that the proposed Development, as it

would be permitted by the Variances, is consistent with the PPS, and conforms to the

Growth Plan. Among other polices in the PPS and the Growth Plan reviewed by Mr.

Johnston he noted: the consistency of the proposed Development, as permitted by the

Variances, to the PPS policies addressing efficient development, the sustainment of the

financial well-being of the Province and municipalities over the long term, and the focus

of growth and development in a Settlement area; and conformity to the policies in the

Growth Plan relating to the development of land, directing growth to Settlement Areas,

economic development, and good planning of employment area within a Provincially

Significant Employment Zone and in accordance with the UHOP.

[41] The Variances and the Development also have regard for matters of Provincial

Interest under s. 2 of the Planning Act including: the adequate provision of employment

opportunities as the Site has been evaluated and deemed to be part of Provincially

Significant Employment Zone 25; and the appropriate location of growth and

development, as the Site is within the Urban Area of the City, a designated Business

Park and zoned Prestige Business Park Exception 440 in the ZBL.

[42] The Tribunal will address the four tests as they were the subject of Mr.

Johnston’s uncontroverted planning testimony, and the related testimony or

submissions of the Appellant as they relate to those four tests.

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Maintains the General Intent and Purpose of the Urban Hamilton Official Plan

(“UHOP”)

[43] The Appellant has introduced no planning evidence with respect to this test or

any aspect of the four tests. Mr. Johnston took the Tribunal through the various policies

of the UHOP and the Secondary Plan, and was of the view that the proposed

Development with the Variances met the general intent and purpose of the relevant

policies.

[44] Mr. Johnston reviewed with the Tribunal the land use designations for the Site,

as it is designated as “E-1, Employment Area – Business Park” and, for that part of the

Site fronting on Barton Street, as a Secondary Corridor. McNeilly Road is designated

as a Collector Road and the future Arvin Avenue extension is as a Proposed Collector.

Under the UHOP, Collector Roads direct access to properties and the movement of

moderate volumes of traffic within and through Employment Areas. Barton Street is a

major Arterial Road. Under the Fruitland Winona Secondary Plan (“Secondary Plan”)

there is a policy directive that truck traffic be removed from Barton Street.

[45] The UHOP policies included those policy considerations under s. E.2.4 and

E.2.7, addressing the usage of, and interface upon, the Urban Corridors and

Employment Areas. Mr. Johnston testified that the location of truck traffic, relative to the

framework for development in the lands south of Barton Street played heavily in the

design and proposed layout of the Development. Mr. Johnston was of the opinion that

the Development, as permitted by the Variances, will facilitate an appropriate interface

along the Barton Street Corridor and, in locating the temporary and future driveway to

the Collector Roads and not onto Barton Street, appropriately recognized the traffic

restrictions and facilitated development of the Site for the permitted uses under the

UHOP. The Tribunal accepts Mr. Johnston’s opinion as reasonable that in the event the

Arvin Avenue extension does not eventually open north of the Site (and no compelling

evidence was provided to the Tribunal that this extension would not become a reality)

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his opinion remained the same under the arrangement proposed as interim, with the

driveway in the location to McNeilly Road.

[46] Mr. Johnston also addressed the relevant portions of the UHOP relating to quality

urban design and those policy directions addressing compatibility with adjacent land

uses, particularly the residences to the west of the Site which are legally non-compliant

with the land use designations under the UHOP. As the proposed Variances would

result in industrial uses in proximity to the residences to the West, and as they are

proposed within the policy context under Exception 440, these policies are of particular

relevance.

[47] Mr. Johnston’s planning opinion was that the Variances and the proposed

Development would be compatible with the adjacent residential uses to the extent that,

while obviously different, they could co-exist in harmony together, as the concept of

compatibility is understood in planning context. The proposed landscape berm, 9 m in

depth, and the 3.5 m visual and acoustical barrier to buffer the residential properties

from the loading areas arise from, and implement, the acoustical report already

completed and address the policies in s. B.3.3, and specifically, s. B.3.3.7. The first

Condition, requiring the investigation of noise levels to the satisfaction of the City to

ensure that recommended sound level limits are achieved, also supports this policy.

Mr. Johnston’s planning opinion was that these combined measures addressed the

issues of compatibility as they include the Exception 440 provisions, the intent of which

are to provide mitigation measures relative to the location of any loading bays. In that

respect, as the berm and the visual/acoustic barrier runs the full length of the west

boundary (save and except for the driveway) the intended compatibility with the

residences to the west is achieved, albeit in an altered manner with the Variances. In

Mr. Johnston’s view, from a planning perspective, the intent of these policies to ensure

a high-quality urban design and compatibility in relation to the public realm and adjacent

properties has been met with those visual and noise attenuation mitigation measures in

place with the Variances and Conditions.

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[48] The Appellant has, in his testimony, raised generalized apprehensions about

possible soil contamination, dust, pest, environmental and other potential compatibility

concerns, none of which are supported by persuasive evidence sufficient to cause the

Tribunal to question the attention given, or to be given, to such matters by the Applicant

and City. The primary facet of this attention given to potential adverse concerns is the

plan for the eleven and a half foot tall visual/noise mitigation paired with an almost 30-

foot wide landscape buffer, together with any other additional measures arising from the

further acoustic investigative and peer review processes to be undertaken as a

condition to the authorization of the Variances.

[49] The various UHOP policies relating to development in the Employment Area

designations, the quality of the public realm in such designations, regard to existing and

planned transportation and servicing infrastructure, parking requirements, and the

longer term planned elimination of non-conforming residential uses within the

Employment Area have been reviewed by the Tribunal, and Mr. Johnston’s opinions on

these various policies have been considered.

[50] Mr. Johnston’s unchallenged planning opinion was that the Variances, as they

would enable the proposed Development, with the stipulated conditions, meet the

general intent and purpose of the policies of the UHOP and the related Secondary Plan.

The Tribunal accepts this opinion and finds accordingly that this test has been met.

Maintains the General Intent and Purpose of the City’s Zoning By-law

[51] Meeting this test under s. 45(1) of the Planning Act, in this case, requires the

additional consideration of specific zoning exceptions created under the 2011

settlement referred to above, contained within Exception 440 to the City’s ZBL. Mr.

Johnston addressed this quite thoroughly in his evidence by separately addressing

those Variances applicable to the Exception 440 provisions.

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[52] Aside from the general apprehensions and voiced concerns, as indicated, no

planning related evidence was provided by the Appellant as to whether the proposed

Variances meet the general intent and purpose of the City’s ZBL.

[53] Mr. Johnston provided a thorough opinion and overview of each of the Variances

relative to the ZBL, including those which vary requirements under the original ZBL

(versus Exception 440) which, in the Tribunal’s view, are persuasive and supported by

the whole of the evidence. Following the numerical sequence of the Variances in

Attachment 1 to this Decision and Order, and upon Mr. Johnston’s planning evidence,

the Tribunal has made the following findings:

(a) Variances 10 and 11, relate to parking and meet the general intent and

purpose of the ZBL. Due to the nature of the facility and the proportionate

size devoted to the warehousing and loading operation, and the separation

of the loading areas from the more limited parking required for the six Units

in the Development, the intent of ensuring adequate, orderly and effective

parking demand is addressed and is certainly met by applying the parking

ratio only to the office floor area.

(b) Variance 2 relating to building height, a change of two metres, meets the

general intent of the ZBL provisions, which regulate the appropriate massing

and scale of the building. This is particularly so, in the context of the area,

the relative height of the visual and noise attenuation wall on the west

boundary as it will separate the residences from the Development, and the

relatively modest increase in height when gauged against the overall size of

the structure within the overall expansive area of the Site.

(c) Variances 12 and 13, which temporarily enable the planned access to

McNeilly Road across residential zoned lands, instead of within the zoning

for the Site, until the Arvin Avenue access is in place, adequately address

the intent and purpose of the ZBL requirements to ensure that Development

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is confined to the area planned for use. The Tribunal has noted: that the

driveway is located north of the northern-most of the row of residential lots

to the west of the Site; the measure is temporary until Arvin Avenue is

constructed, which is ensured through Condition 3 on Attachment 1; the

Development has mitigation measures and a planned layout sufficient to

limit the extent to which the development strays beyond the zoned

boundary; and,

(d) Variances 1, 3, 4 and 6, vary standards for setback, landscaping and

parking adjacent to the street lines and are, as Mr. Johnston noted, intended

to maintain streetscape views, screen parking areas, and meet urban

design standards expected of a development in the Prestige Industrial area.

The Tribunal is satisfied that these Variances meet that intent and purpose.

Due to the angled street frontage a large portion of the landscaping meets

or exceeds the required depth and setback requirement, and only as the

frontage area reaches the eastern boundary is the depth reduced. Mr.

Johnston has testified that despite the ‘pinch point” in this area, sufficient

planting can still be placed to screen the parking. The proposed Landscape

Plan reflecting this proposed layout will be assured through the Site Plan

process.

[54] This leaves Variances 5, 7, 8 and 9, which are variances of performance

standards in Exception 440 to the ZBL. These Variances relate to: the visual barrier

(Variance 5); the location of the loading area on the west, and not the east, side of the

building (Variance 7); the loading space length (Variance 8); and the noise attenuation

wall (Variance 9).

[55] Mr. Johnston has drawn attention to the fact that Exception 440 was put into

place without a specific development in mind. That is however, the case for many

zoning performance requirements, which predetermine limitations and set community

standards. This does not diminish the effect, intent or purpose of the created standards

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put into place under the approved settlement, or the necessity of ensuring that the

general intent and purpose of each of the requisite standards is met. The setting of the

standards, in the absence of specifics, also anticipates that a developer will have

recourse to the Act to request a zoning by-law amendment or variances in which the

specifics of a development can be assessed against the intent and purpose of the

restrictions in place within the zoning by-law.

Variance 5 – Visual Barrier

[56] Dealing first with Variance 5, and the visual barrier, the form and effect of the 3.5

m high structure has been identified and as the intent and purpose is simply to ensure

that a visual barrier is in place for residents of the lots to the west, that intent and

purpose is fully met. The barrier will not be in place at the location of the driveway at

the northwestern corner of the Lot where no residents will reside. Otherwise, the

placement of the barrier will exist, equal in length to the loading space area.

Variance 8 – Loading Space Length

[57] Variance 8 relates to the restriction in Exception 440 which stipulated a maximum

loading space width of 10 m on the west side, and varies the loading space to 23 m. It

was, of course, put in place where no development proposal was known. The Tribunal

agrees with Mr. Johnston’s assessment that the intent and purpose of this loading

space restriction was to ensure visual and noise compatibility with the adjacent

residential lots to the west was maintained through an appropriate interface.

[58] The Development now proposes both the landscaping berm and the 3.5 m high

visual and noise attenuation barrier along the entire west side of the Site. As noted

below, the evidence before the Tribunal is that the acoustical testing, to date, has

established that with these mitigation measures in place, despite the greater 23 m

maximum loading space length, there will nevertheless be compliance with permitted

noise levels established by the Province. As well, Condition 1 allows for further peer

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review, testing of sound level limits, the firm condition that the results must meet

recommended sound level limits and that all additional recommended control measures

be in place to the satisfaction of City staff.

[59] If the Tribunal is satisfied that Variances 7 and 9 meet the general intent and

purpose of those sections of Exception 440, then the Variance of the Loading Space

length will, logically, also meet the general intent and purpose of the standards set in

the Exception.

Variances 7 and 9 – Loading Space Location and Noise Attenuation Wall

[60] The Appellant’s concerns about the possibility of noise are not disingenuous and

are understandable given the reversal of the loading bays to the west side of the

building and the expectant back-up warnings, vehicle noise, operational activity, and the

proximity of the area in which trucks will be maneuvering into loading bays. These

apprehensions are, however, unsubstantiated by any evidence to refute the acoustic

testing that has been completed to date and fail to consider the noise attenuation wall

and the fact that additional control mechanisms that will be in place with the additional

peer review of acoustic testing of noise levels to be conducted under Condition 1 and

the required sign-off by the Director of Planning and Chief Planner for the City to the

authorization of the Variances. The Appellant’s concerns are also unsupported by

evidence that would refute the reasonable and measured planning opinions provided by

Mr. Johnston in concluding that the Variances meet the general intent and purpose of

the Exception 440 provisions as they were implemented in 2011.

[61] It nevertheless remains for the Tribunal to be satisfied that the general intent and

purpose of the restrictions in Exception 440 have been maintained with Variances 7 and

9.

[62] The free-standing noise attenuation wall that is not attached to the wall of the

building is, very obviously, a significant aspect of the proposed Development and arises

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from the concerns expressed by City staff prior to the findings and recommendations

contained in an Environmental Noise Impact Study prepared earlier this year. The 3.5

m wall, such other mitigation measures required to address noise rising above permitted

levels set by the Ministry of the Environment, Conservation and Parks (“MECP”), and

the location of the loading docks/bays on the west side contrary to s. 440.(a)(i) of

Exception 440 is, in the Tribunal’s view, really the primary focus of the Tribunal in these

requested Variances.

[63] On the evidence before it, and when reviewing the Development limitations

imposed by Exception 440, the Tribunal is satisfied that the general intent and purpose

of requiring the loading areas to be located on the east side of the building, away from

the residential lots, and requiring a noise attenuation wall be in place and attached to

the building, was to ensure compatibility of any industrial development with the adjacent

residential land uses to the west.

[64] More specifically (in addition to visual and built-form/operational compatibility),

the concerns of compatibility relate to the reality that noise would be generated from

these industrial park lands that would obviously differ from noise levels that might arise

from other residential uses. Do Variances 7 and 9 (and relatedly, Variance 8) meet the

general intent and purpose of the imposed restrictions as to the location of the loading

bays and the form of the noise attenuation wall?

[65] It is the Tribunal’s view that the Variances do maintain the general intent and

purpose of those requirements for the following reasons:

(a) The only evidence before the Tribunal, introduced through Mr. Johnston,

and set out in paragraphs 80 to 83 of Exhibit 3, establishes that the

location of the loading bays on the west side, with the recommended

measures, will result in noise levels that are within the standards set by the

MECP and thus, compatible with the adjacent residential uses;

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(b) The evidence provided through Mr. Johnston sets out the form of acoustic

modeling approved by MECP and utilized in the assessment which relates

to pre-determined sound level criteria for sensitive points of reception

located within the residential lots to the west, both indoors and outdoors.

The projected sound is similarly pre-determined using accepted scientific

noise modelling parameters. The assessments were undertaken using the

layout and Minor Variance Sketch located at Tab 5 of Exhibit 2, which is

dated January 6, 2022.

(c) This assessment determined the need for the appropriate noise attenuation

barrier as it has now been proposed for this Development, and upon which

the authorization of the Variances is sought. The barrier has been

determined to be high enough to mitigate the presumed worst-case noise

source. This includes assumptions that operations, including vehicle idling,

will not occur between 11 p.m. and 7 a.m. as required by the City’s Noise

By-law. (The Tribunal is satisfied that despite Mr. Clayton’s unsubstantiated

and vague reference to a “prohibition against noise complaints”, the City’s

enforceable noise by-law would indicate that this is clearly not the case.)

(d) The assessment has determined that with the recommended mitigation

measures, noise levels for the residential properties will not exceed the

permitted levels established by the MECP based on the now-known location

of the loading bays/docks, the location of the 3.5 m barrier, and the levels of

noise that will be generated at source on the Site.

(e) The additional “checks and balances” provided for in Condition 1 to the

Variances, if authorized, will further ensure additional peer review of the

noise assessment that has led to this conclusion and allow for further

additions or refinements of the necessary noise mitigation measures,

ultimately to the satisfaction of the City.

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(f) Upon this MECP modelling and these standards, and the resultant report

provided by dBA Acoustical Consultants Inc. in January of 2022, Mr.

Johnston has firmly opined that he can “confidently conclude” that the intent

and purpose of the Exception 440 requirement originally addressing the

location of the loading bays, and the attached noise attenuation wall, is

maintained if these Variances are authorized.

(g) The Tribunal accepts this uncontroverted evidence and finds that Variances

7 and 9, and Variance 8, as with the other Variances, meet the general

intent and purpose of the City’s ZBL, inclusive of Exception 440.

Variances are Minor

[66] With respect to this third, of the four tests under s. 45(1), the Tribunal has

received and accepts Mr. Johnston’s uncontroverted planning evidence and upon the

analysis provided, and upon all of the evidence before it, it finds that the Variances are

minor.

[67] Mr. Johnston is of the view, and the Tribunal agrees, that neither the number of

variances nor the numerical differences between the zoning requirements and the

Variances requested is necessarily the primary concern when determining whether

variances are minor. Sometimes numerical deviations may be indicative and of greater

relevance in determining whether a variance is minor, but the consideration of whether

a variance is minor is “not just about the numbers”. The intent and purpose of variances

requested under s. 45(1), the specific context of a variance application based upon

applicable planning policies, and importantly, the specific facts of each case, are often

of greater relevance in determining what is minor, which may be something more in the

form of a qualitative assessment in some cases, rather than a simple quantitative or

numerical assessment.

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[68] In this case, as indicated, one of the primary concerns is whether the location of

the loading bays on the west side, and their proximity to the residential lots, results in

compatibility between the industrial lands and the residential uses. The mitigation

measures, in this case, are of significance in determining whether the Variances are

minor in the matter of compatibility. Can the Development and the residential lands to

the west exist in harmony? The Tribunal accepts Mr. Johnston’s planning opinion that

they can and that the industrial development will be compatible with the adjacent uses

and, that the Variances are minor in nature as they facilitate the compatible

development of the industrial park lands that is of a type that has always been planned

for the Site.

[69] Of significance is that there is no evidence before the Tribunal that the

Variances, with the mitigation measures and the Conditions, result in any unacceptable

negative impact, including noise or visual or privacy concerns. No other person has

stepped forward to voice objections to the proposed Development as it will be permitted

with the Variances. Mr. Clayton has expressed only general apprehensions and

concerns which are not supported by any empirical evidence, and to the contrary, the

only evidence persuasively indicates that with the mitigation measures in place, there

will be no undue adverse impact. Again, the Conditions ensure that the Development

will proceed in accordance with the plans provided to the Tribunal and that further peer

review and assessment by the City’s Director of Planning and Chief Planner will occur

to ensure that satisfactory noise control measures are in place to meet MECP

recommended sound level limits.

[70] For these reasons, and as opined by Mr. Johnston, the Variances, individually

and cumulatively, are in the Tribunal’s view, minor.

Variances are Desirable for the Appropriate Use and Development of the Site

[71] Finally, there is little doubt in the view of the Tribunal that the Variances, as they

will enable the Development on the Site, are desirable for the appropriate use and

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development of the Site. Mr. Johnston’s planning opinion is that the Development will

facilitate targets for employment by delivering a substantial employment generator,

accommodate development of currently underused lands, consistent with permitted and

designated uses within a Provincially Significant Employment Zone, a designated

employment area within the Prestige Business Park M3 Zone, and on transportation

routes able to accommodate the intended use.

[72] The Tribunal accepts this planning evidence and finds accordingly that this test

has been met.

Summary of Findings and Disposition

[73] Upon all of the evidence, and upon the analysis of the evidence as set out in this

Decision and the various findings, the Tribunal accepts the uncontroverted planning

evidence from Mr. Johnston presented in this hearing and finds that the proposed

Development, as it will be constructed with the approved Variances, and with the

imposed Conditions as referred to: maintain the general intent and purpose of both the

UHOP and the City’s Zoning By-law, inclusive of the Exception 440; are minor and are

desirable for the appropriate development and use of the Site. It is the finding of the

Tribunal that the authorization of the Variances, as amended without the necessity of

further notice, and the Development, represent good planning, and should be

authorized.

[74] In considering this Appeal, the Tribunal has also had regard for the decision that

was made by the Committee as the Approval Authority, and for the information and

material that the Committee considered in making the decision to approve the

Variances, albeit in a slightly different form.

[75] The Tribunal has carefully considered the relevant evidence and the earnest

views and submissions of the Appellant as expressed in this hearing, excluding those

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irrelevant to the issues at hand, but must, upon the stated findings, the uncontroverted

planning evidence presented, and for the reasons given, dismiss the Appeal.

ORDER

[76] The Tribunal having been asked to consider an application which has been

amended from the original application, the Tribunal has determined, in accordance with

s. 45(18.1.1) of the Planning Act, that the amendment is minor and that no further notice

is required.

[77] The Tribunal Orders that the Appeal is dismissed, and the twelve (12) Variances

as set out in Attachment 1 to this Decision and Order are hereby authorized subject to

the three (3) Conditions also set out in Attachment 1.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

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.

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ATTACHMENT 1

Variances

1.

2.

3.

A minimum 4.25 metre yard abutting a street shall be permitted instead of the

minimum required 6.0 metre yard abutting a street.

A maximum building height of 13.0 metres shall be permitted, instead of the

maximum permitted building height of 11.0 metres.

A minimum 1.2 metre landscaped area shall be provided where the parking area

for more than four vehicles abuts a street, instead of the minimum 6.0-metre-

wide landscaped area required.

4.

5.

A minimum 1.2-metre-wide planting strip shall be provided within the

landscaped area, instead of the minimum 3.0-metre-wide planting strip required.

A visual barrier shall be permitted to extend along a portion of the eastern lot

line(s) of the abutting residential lots to the west, instead of the requirement that

a visual barrier shall be provided along the entire extent of the eastern lot line(s)

of the abutting residential lots to the west.

6.

7.

Parking spaces and aisles giving direct access to abutting parking spaces shall

be permitted to be located 1.25 metres from the street line, instead of the

requirement that parking spaces and aisles giving direct access to abutting

parking spaces, shall not be located within 3.0 metres of a street line.

Loading facilities shall be permitted along the west elevation of the building and

face the eastern lot line of the abutting residential properties to the west, instead

of the requirement that a loading space shall not be permitted on any west

elevation of the building that faces the eastern lot line of the abutting residential

properties to the west except where separated by another building.

8.

A maximum loading space length of 23.0 metres shall be permitted, instead of

the maximum permitted loading space length of 10.0 metres, where located

within 40.0 metres of the eastern lot line of the abutting residential properties to

the west.

9.

A noise attenuation wall shall be permitted that is not attached to the wall of the

building, instead of the requirement that a loading space located within 40.0

metres of the eastern lot line of the abutting residential properties to the west,

shall be screened by a noise attenuation wall attached to the building.

10.

Eighty-four (84) parking spaces shall be permitted, instead of the minimum

required four-hundred and thirteen (413) parking spaces.

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11.

12.

Access to the proposed parking and loading area shall be provided on an

adjacent property, instead of the requirement that required parking facilities

shall be located on the same lot as the use requiring the parking.

To permit an access driveway for the proposed industrial use (i.e. a Planned

Business Centre) contained within the “M3 and M3, E440” zones to be provided

on a lot zoned “R1” notwithstanding industrial uses are not permitted within the

“R1” zone.

Conditions

1.

That the owner shall investigate the noise levels on the subject lands and

determine and implement the noise control measures that are satisfactory to the

City of Hamilton in meeting the Ministry of Environment, Conservation and

Parks (MECP) recommended sound level limits. An acoustical report prepared

by a qualified Professional Engineer containing the recommended control

measures shall be submitted to the satisfaction of the City of Hamilton, Director

of Planning and Chief Planner. Should a peer review of the acoustical report be

warranted, all associated costs shall be borne by the owner and shall be

submitted to the satisfaction of the City of Hamilton, Director of Planning and

Chief Planner.

2.

3.

The proposed industrial facility shall be constructed substantially in accordance

with the Minor Variance Sketch contained at Tab 5 of Exhibit 2.

That variance(s) 11 and 12 shall only remain in force and effect until the

construction of the Arvin Avenue extension to the north property line of the

subject lands is complete.