The Local Planning Appeal Tribunal (formerly known as the Ontario Municipal Board) continues its pre-hearing into the appeals by Parrish & Heimbecker, Bunge Canada, and Harbour West Neighbours against the City’s zoning changes for the Pier 8 lands to enable the City’s planned residential redevelopment of the lands on Hamilton’s West Harbour.
The Public Record must request the permission of the Presiding Member of the LPAT to electronically publish during the meeting. If that permission is granted, our liveblog coverage will be below.
Read our coverage of the first day of pre-hearing from March here: OMB Will Review Council’s Potential Conflict on Pier 8 as Both Approving Authority and Land Seller
June 5, 2018 at 10:00 AM: Good morning everyone, I'm awaiting the start of the hearing. I do not know if the presiding LPAT member will grant permission to report and publish during the hearing.
10:01 AM: The banter between lawyers for the City of Hamilton and appellants Parrish & Heimbecker, Bunge Canada is friendly. Herman Turkstra, for Habour West Neighbours, is running late, he's asked the hearing begin without him. He's estimating he'll be 15 minutes late.
About 20 minutes ago, the City lawyer Michael Kovacevic stood up on my behalf to inform the Tribunal that I wished to report electronically during the meeting. The Tribunal granted permission.
We've had a debate about a series of issue list matter.
Of particular note, the lawyers for Parrish & Heimbecker, Bunge Canada (industrial appellants) argued for the Urban Hamilton Official Plan (UHOP) to be applied as a test in this hearing. Specifically, they were asking for the shipping and navigation zoning policies, and policies related to properties near industrial uses, to be applied by LPAT in this hearing.
Kovacevic, for the City, argued that UHOP does not include Pier 8 in any of its language or mapping.
Lawyers for the industrial appellants counter argue that UHOP applies to all Secondary Plans, it will apply to Setting Sail and Pier 8.
City states that Setting Sail is not in effect due to appeal to Minister, and therefore, UHOP does not apply.
Tribunal member Gerald Swinkin agrees with City position. UHOP will not be considered.
Lawyer for Parrish & Heimbecker says the board can impose requirements for noise impact mitigation measures as part of the Pier 8 zoning.
Specifically, they want to ensure the zoning requires the new Pier 8 to be designated as Class 1 under Environmental Noise Guideline – Stationary and Transportation Sources – Approval and Planning (NPC-300)
Lawyer for Bunge Canada they want Class 1 under NPC-300 to
"ensure the industry can continue … that employment can continue …
protect the industry from complaints in the future … to allow the industry to continue in the future."
Kovacevic says it would be improper of LPAT to change the municipal council's decision to impose Class 4 under NPC-300 as these are municipal lands, and outside the power of the LPAT to change.
Lawyers for Parrish & Heimbecker, Bunge Canada are arguing to protect themselves against complaints, but more importantly, a Class 1 designation will improve the quality of life for future Pier 8 residents. (Achieving Class 1 construction is more expensive, and will likely decrease profits on Pier 8 housing)
LPAT presiding member Swinkin says he'll tightening language of the issue list on this matter, but that he believes the Tribunal should explore this as part of the wider issues.
10:52 AM: We're now having a discussion of the new rules of the LPAT. I'm not familiar enough with these rules to fully understand the discussion at present; at its root is what issues can be added, and who can add them.
Reference link to Environmental Noise Guideline – Stationary and Transportation Sources – Approval and Planning (NPC-300)
10:55 AM: I see an error whenever I use contractions, will try to avoid during so moving forward.
There is now debate about environment exclusion zones, and disclosures between the City and industrial appellants.
There is some talking over each other.
Now the parties have agreed to disclosure.
11:20 AM: There is continuing debate about issues list – it really boils down to Parrish & Heimbecker and Bunge wanting Pier 8 designed to prevent noise issues for residents; they are not necessarily opposed to the developer, they want to ensure whatever is built, it does not cause conflicts between the port uses and the new residents.
11:21 AM: And now lawyers are arguing about interrupting and speaking over each other.
They've settled on the issues, there are over 20.
Now setting dates for hearings.
They are splitting this into two separate "phases"
Phase I – the Harbour West Neighbours appeal – will be in April 2019
Phase II – the industrial appellants – will be starting September 23, 2019, and run for four weeks.
There will be an attempt at mediation between the City and industrial appellants which will occur with a hope of settlement in late 2017 or early 2018.
In the discussion about mediation; it appears the City and industrial appellants that they plan to have the Pier 8 winning bidder involved.
There are non-disclosure agreements between the City and industrial appellants.
Lawyers for industrial appellants are sounding optimistic that a settlement can and will be reached.
12:02 PM: And that concludes today's LPAT hearing. Thank you for following along.