Is the added shadow impact of two extra storeys on a kindergarten playground ‘significant enough’ to lower development to four-storeys?
This was the primary topic of arguments on the first day of a scheduled nine-day contest Ontario Land Tribunal hearing for a proposed redevelopment of 1065 Paramount Drive in Upper Stoney Creek.
Developer Mikmada Homes is seeking permissions to permit “the development of an eight storey, 181 unit multiple dwelling, 79, three and three and a half storey stacked townhouse dwellings, and 44, four storey stacked maisonette townhouse dwellings, for a total of 304 dwelling units, with 415 parking spaces with 225 of those being in one level of underground parking, 38 short term bicycle parking and 208 long term bicycle parking spaces along with two driveway accesses proposed off of Paramount Drive.”
City of Hamilton’s planning staff did not support the eight-storey height and recommended City Council deny the application.
Mikmada filed their appeal after learning of the planned denial, before Council could vote to deny.
The hearing is officially a non-decision appeal.
Shadow Impacts
The City’s Sun-Shadow Study guidelines only apply to “buildings greater than 6 storeys in height”
Mikmada’s lawyer Russell Cheeseman and planning expert John Ariens argued that because six-storey shadowing is permitted as-of-right, the OLT should only consider the additional shadowing impacts of the seventh and eighth storey of the proposed development.
Hamilton’s guidelines categorize school yards as common amenity areas.
It states that a minimum of 50 percent sun coverage is required at all times of the day, as measured on March 21.
The City argues the shadow impact should be considered in segments, the developer is arguing that it should be measured by the entire schoolyard.
Specifically, in this case, the shadows cast upon one of the “K-Pen” areas used by kindergarten classes at Billy Green Elementary School.
The developer’s planning expert argued the impact upon one “K-Pen” is minor.
Registered Professional Planner John Ariens testified the impact of the additional two-storeys is minor, showing an 11:26 a.m. spring equinox shadow analysis graphic to make the point.
Ariens stated the darker shade “represents a six-storey building. The lighter one represents the current proposal, the eight-storey building.”
Ariens says the shadow difference between eight storeys and six “is not that substantial. Obviously, it’s less with the six-storey but not significantly less.”
“Only 8.7% of the playground areas are not in 50% sunlight. And it’s only for a couple hours on that particular day.”
There is no shadow impact during school hours in May, June, and July.
Ariens says the developer is offering to pay to move the K-Pen.
“Although not required to address shadow impact, the applicant is willing to work with the school to provide an alternate fenced-in area for the kindergarten classes north of the existing building. The current playground would be cleared and replanted for a butterfly garden or wildflowers. The relocation of the playground is intended to address community concern regarding the shadows.”
City Cross-Examination of Developer’s Planner
Early in his cross-examination, City of Hamilton lawyer Peter Krysiak stated, “there are no seven, six, 5 or 4 story buildings currently existing or proposed in the neighbourhood.”
It was quickly clarified that “neighbourhood ” refers to north of Mud Street.
Krysiak then proceeded to question Ariens on how to interpret the guidelines.
The City’s shadow guidelines state “school yards,” Krysiak began. “It does not say entire school yard. It says this category includes school yards and playgrounds.”
“It doesn’t have the word entire. You’re correct,” Ariens stated regarding how “school yards” could be interpreted.
Ariens restated and explained why, in his professional opinion, the word “school yards” applies to the whole of a school yard, not only a portion.
Krysiak asked Ariens if he “agree” that other professional planners ‘could interpret the guidelines differently.’ Ariens agreed.
Krysiak argued the developer should lower the height of development to four storeys, instead of offering to move the “K-Pen” playground.
“The simple solution would be, well, can we move the pen? And, you know, to me, that’s the best of both worlds,” Krysiak argued.
Ariens restated the City’s shadow policies are a guideline. “It’s not a regulation that we have to meet. It’s a guideline.”
Krysiak responded, “Well, if it’s only a guideline, why did you bother to, to follow the guideline and do the study in the first place?
Ariens: “Because that’s what’s required under the planning process … we follow those guidelines because we’re responsible consultants. We follow the process.”
Krysiak: “Right. But if it’s only a guideline and if if it’s only in draft, as you mentioned, several times, why didn’t you simply push back and say, this isn’t this isn’t even worth doing. I don’t care if there’s 100% shadow.”
Ariens: “That’s not the way I run my business. I treat these issues seriously. I address them, and then either we change the concept or we say, sorry, it just doesn’t apply or it’s not significant enough. So I don’t ignore it.”
The debate continued until the developers’ lawyer interjected.
“He’s answered the question. He said there’s an impact. He said it’s just not an adverse impact,” Cheeseman stated.
OLT Member Carolyn Molinari agreed and ended this line of questioning.
Krysiak ended his cross-examination.
In redirect, Cheeseman noted that each floor will have approximately 20 to 22 units.
Hearing Continues this Week
The hearing will resume Wednesday morning.
Issues remaining to be argued include the City’s concerns regarding unit mix (with no three-bedroom units proposed in the apartment building), what the City says is a lack of landscaping and sustainable design features, and the City’s arguments the design of the buildings does not fit into the existing neighbourhood.
Participant Tried to Interject
Only those with Party status can make oral arguments at the OLT. Participants are limited to written statements.
Nearby resident Laurie Whitely attempted to interject during arguments.
“Can I just interject here? We’ve been listening to Mr. Ariens all day. My name is Laurie Whiteley as well. You know, I’m sorry we had to interject.”
The Tribunal quickly muted the participant. The participant left the video conference shortly afterwards.
Whiteley spoke with TPR after the day’s hearing, expressing frustration at the process. She says the thousands of people who signed a petition are being silenced.
Production Details v. 1.0.0 Published: October 2, 2024 Last updated: October 2, 2024 Author: Joey Coleman Update Record v. 1.0.0 original version v. 1.1.0 CORRECTION: mistakenly confused north and south of Mud in original version.