Land use rules in Hamilton, as stated in the Zoning By-law and the Urban Hamilton Official Plan prohibit standalone surface parking lots as a desired use. The regulations do, however, allow parking structures in all but one commercial zoning category. (Prohibit as a desired use is very different that illegal, a term unfortunately misused to describe the Scott Park parking lot)
The restriction on stand-alone surface parking lots is not final, any property owner can apply to the Committee of Adjustment for a “minor variance” to allow for surface parking. The Hamilton-Wentworth District School Board could go this route.
The easier route is to rezone to a commercial designation allowing for a parking structure. With Scott Park already zoned commercial, there is little that opponents of the Scott Park plan can do to stop the Board from building a parking structure.
The only question, if the Board goes for a parking structure, is when it will be built.
Let’s look at the Zoning By-law and the Urban Hamilton Official Plan for how parking lots and parking structures are regulated.
[module align=”right” width=”half” type=”aside”]
Related Planning Documents
- Planning Act (Ontario) Section 45
- Urban Hamilton Official Plan (UHOP)
- Hamilton Zoning By-law 05-200
- Hamilton Zoning By-law Section 10 (proposed)
- Hamilton Committee of Adjustment
- Ontario Municipal Board
- Ontario Municipal Board guide to filing appeal
Prohibition on Surface Parking
Parking is a major part of urban planning, so much so that it is an entire section of the Zoning By-law, Section 5.
The by-law does not allow for surfacing parking as a standalone use, it is allowed as accessory to the main use and only on the “same lot as the use requiring the parking.” (Zoning By-law 5.1.a.i).
An exception (Zoning 5.1.a.ii) allows for parking located on another site within 300 metres, provided “parking is not possible, or not practical” on the main site. The Board may have difficulty claiming this exception as parking is currently exists on the King George and Parkview site.
The proposed Section 10 to the Zoning By-law prohibits standalone surface parking in commercial zoning.
The Urban Hamilton Official Plan further regulates where parking is located. Surface parking is to be located “at the rear of buildings where feasible” (UHOP 4.5.18)
UHOP makes repeated references to encouraging the “use of underground parking or parking structures” as a favourable land use instead of surface parking. The addition of a parking structure in commercial shopping “power centres” is not considered a major redevelopment under UHOP.
UHOP can be used to argue a parking structure is in keeping with the spirit of Hamilton planning policies, an important argument when seeking a variance.
Commercial Zoning Designation of the Scott Park Site
The current zoning for the Scott Park site is “Commercial” without a further designation. Within the new Urban Hamilton Official Plan, King Street East is designated as a “primary corridor” (UHOP Schedule E).
The HWDSB can ask for a redesignation of the commercial zoning to “Mixed Use – Medium Density” under UHOP.
The current Scott Park structure’s height and use fits most appropriately with the designation.
Mixed Use – Medium Density use is regulated in Section 4.6 of UHOP and designation allows for a parking structure and the height restriction is six stories.
There is an exception in the Section for buildings of eight stories provided “there are no adverse shadow impacts on existing residential uses within adjacent lands designated Neighbourhoods.” (UHOP 4.6.8)
With the land north of the Scott Park property a park and stadium, the eight storey limit can be granted.
The easiest path for getting a Mixed Use – Medium Density designation for the Scott Park site is via the Committee of Adjustment requesting a minor variance
Upcoming Changes to Commercial Zoning Allow Parking Facilities as Right
Hamilton’s new city-wide Zoning By-law is being implemented in phases. The next phase is Section 10 – Commercial Zones which will designate all commercial properties into one of seven categories.
Of the seven categories, six allow for “Commercial Parking Facilities” (parking structures) as a right of zoning. The only zoning that doesn’t allow for a commercial parking facilities is Local Commercial (C1) and the City be hard-pressed to designate land along a primary corridor as C1.
The new Zoning By-law Section 10 is in its final stages of public consultation and will be presented to Council for final approval in mid-2014.
Rules Applying to Parking Structures
Depending on the zoning designation, a parking structure is regulated by either Section 5 or 10 of the Zoning By-law. Unless Scott Park is designated “high density” commercial, a parking structure will be regulated solely by Section 5.
High density commercial designation only allows a parking structure as part of a larger building with only the entrance and exit allowed on ground level, all the parking must be above or below ground.
Medium density commercial, the most likely designation, only requires the structure by in keeping with the surrounding area and provide some setbacks that includes landscaping to prevent the parking structure, know as a Commercial Parking Facility from becoming an eyesore.
With the stadium across the road, a proposed community centre on the adjacent lands, and a potential transit/LRT hub located at the site, there is a market to support the parking structure in addition to the needed parking spots for the high school.
Parking Requirements for New High School
Section 5.6 of the Zoning By-law sets the minimum requirements for parking. A secondary school, outside a Downtown Zone, is required to provide “3 [spaces] for each classroom plus 1 for each 7 seat capacity in an auditorium, theatre or stadium.”
As is the case with almost all planning decisions, the law allows for exceptions depending upon the plan and its circumstances.
As the new High School nearby a primary corridor that is well serviced by public transit, the Urban Hamilton Official Plan allows for reduced parking requirements.
“Reduced parking requirements shall be considered to encourage a broader range of uses and take advantage of a higher level of transit service” in medium mixed-use commercial zoning. (UHOP 4.6.27)
The Minor Variance Process
All the changes needed for the HWDSB to build a parking structure at Scott Park can be achieved by filing a minor variance request and seeking the approval of the Committee of Adjustment.
The power of the Committee of Adjustment to change zoning requirements is unlimited, subject to appeal to the Ontario Municipal Board.
Section 45 of the Planning Actstates a four-prong test for granting a minor variance, without directly defining what is minor.
The Committee of Adjustment must be satisfied of the following:
1. the variance requested maintains the intent and purpose of the Official Plan;
2. the variance requested maintains the intent and purpose of the Zoning By-law;
3. the variance is desirable for the appropriate and orderly development or use of the land; and
4. the variance, in the view of the Committee, is truly minor in nature.
The Variance Process Timeline
If the Board files for a minor variance, it sets in motion a quick series of events.
A public hearing is held within 30 days “after the receipt of a complete application”.
A public notice will be posted on the Scott Park site, a minimum of 10 days prior to the hearing date.
A decision is made by the Committee of Adjustment within 10 days of the hearing, and a 20 day appeal period follows for anyone who wishes to challenge the CoA decision at the Ontario Municipal Board.
Request Minor Variance for Surface Parking
The Board could go to Committee of Adjustment asking to pave the site for surface parking. Under parts 1 and 2 of the four-prong test, a surface parking lot could be argued to be contrary to the Official Plan and the Zoning By-law. City staff will likely oppose on those grounds.
The CoA is not in the habit of approving these kinds of variances.
Even if – and it’s a BIG if – CoA approves a surface parking lot, citizens can appeal to the Ontario Municipal Board arguing the variance fails to meet the first two parts of the four-prong test.
The OMB process can be time-consuming and the Board is looking to move with some speed to complete its plans.
Request Minor Variance to Zone Commercial Medium Density
The Board is wiser to go to the Committee of Adjustment seeking a mixed-use medium density (C3) zoning designation be applied to the existing commercial zoning for the property.
C3 zoning is in keeping with both the Official Plan and Zoning By-law. It can be argued that a parking structure – near the stadium – is an appropriate and orderly development or use of the land, and that changing the zoning is truly minor in nature as all but one commercial zoning designation allows for a parking structure as a right of zoning.
In the event CoA approves the C3 (or other) zoning designation and an person or body appeals to the OMB, the case could be heard very quickly on a motion as it arguably meets all four criteria of the Section 45 four-prong test.
The HWDSB cannot build a surface parking lot at the current Scott Park site without a variance or change to the zoning bylaw. They can ask for a variance to do so, but are unlikely to get it.
If the HWDSB seeks to designate the existing commercial zoning to a C3 mixed-use medium density, the Board can build a parking structure on the Scott Park site as a right of zoning, and can build it fairly quickly as well.