Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 16, 2021
CASE NO(S).: PL200579
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 418 Waldemar Inc.
Subject: Request to amend the Official Plan - Refusal of request by City of Burlington
Existing Designation: Neighbourhood Commercial
Proposed Designated: Residential – High Density
Purpose: To permit a 13-storey residential apartment building
Property Address/Description: 418-422 Guelph Line
Municipality: City of Burlington
Approval Authority File No.: 505-01/20
OLT Case No.: PL200579
OLT File No.: PL200579
OLT Case Name: 418 Waldemar Inc. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 418 Waldemar Inc.
Subject: Application amend Zoning By-law No. 2020 - Refusal of Application by City of Burlington
Existing Zoning: Neighbourhood Commercial (CN1)
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit a 13-storey residential apartment building
Property Address/Description: 418-422 Guelph Line
Municipality: City of Burlington
Municipality File No.: 520-02/20
OLT Case No.: PL200579
OLT File No.: PL200580
Heard: December 7, 2021 via video hearing
APPEARANCES:
Parties
Counsel/Representative*
418 Waldemar Inc.
Scott Snider, Anna Tourmanians
City of Burlington
Blake Hurley
Regional Municipality of Halton
Kelly Yerxa
Paris Road Plaza Inc
Mira Piro*
DECISION DELIVERED BY SHARYN VINCENT AND ORDER OF THE TRIBUNAL
1418 Waldemar Inc. appealed the refusal by Council of the City of Burlington (the “City”) of applications to amend the Official Plan and Zoning By-law to permit lands known as 418-422 Guelph line to be redeveloped for High Density Residential use in the form of a 13 storey building, 170 unit building. The lands are currently designated and zoned to permit Neighbourhood Commercial uses, permitting a mix of commercial and residential uses.
2The Tribunal was advised by the Parties that settlement had been reached for a revised proposal of 11 stories including grade related and second floor commercial uses, and have requested the Tribunal to consider the settlement. The Tribunal is in receipt of the written Participant Statement filed, on behalf of the St. Clair Avenue Residents Association, filed in accordance with the procedural order and which outlines the concerns regarding building height, density, transition, traffic and ground water disruption, which in the opinions of the authors, remain unresolved with the revised proposal.
3Three sworn affidavits were filed with the Tribunal from the land use planner for the City and Appellant respectively, and from the transportation engineer for the Appellant. All three affiants gave testimony in support of the settlement: Martin Quarcoopome, who was qualified to assist the Tribunal in its deliberations through opinion evidence in areas of land use planning; and Jill Juhlke, who was qualified to give opinion evidence with respect to transportation planning, parking adequacy and, most particularly, responding to the traffic related concerns of the participants, appearing on behalf of 418 Waldemar Inc. Melissa Morgan, who was qualified to give opinion evidence in areas of land use planning, and who had carriage of the original and revised applications, spoke on behalf of the City to the revisions which addressed the concerns of the City with the original proposal. All of the affiants addressed the matters within their areas of expertise, raised in the Participant Statement.
CONTEXT
4The combined property is located just south and west of the intersection of Guelph Line and New Street and is currently occupied by two detached two storey commercial buildings and associated surface parking. Abutting to the south is the Centennial Trail portion of the Waterfront Trail system, and the associated municipally owned surface parking lot.
5To the north is an existing single storey commercial plaza and surface parking in keeping with the same Neighbourhood Commercial designation which is shared by the subject site and the properties fronting both Guelph Line and New Street. To the west, south and south west of the Neighbourhood Commercial node, are lands designated High Density Residential which are developed as designated, with residential buildings ranging from 4 to 11 storeys.
6The Tribunal was advised that Council had recently approved a two-building infill development, each having heights of 11 storeys within the northwest quadrant of the Guelph Line and New Street intersection. Those lands were also designated Neighbourhood Commercial.
7The most proximate low density residential neighbourhood is located in the interior of the south east quadrant of the intersection and is traversed by St. Clair Avenue, the street of the Participants, which runs generally east from Guelph line, south of the Waterfront Trail.
THE EVIDENCE
8The original proposal was not supported by planning staff who recommended refusal given the following shortcomings:
Contrary to the official plan designation, the original proposal contained no commercial floor area;
the original proposal provided very little opportunity for amenity space or green space at grade;
two large overhead doors overpowered the front façade and negatively impacted the public realm;
unenclosed parking was proposed at grade; and
the overall height and massing of the building which was proposed with minimal setbacks.
9The revised proposal subject of the settlement incorporates the following changes:
height has been reduced from 13 to 11 storeys;
324 square metres of commercial space, and 122 square metres of office and business centre space has been incorporated into the ground and second floors respectively;
the commercial area is oriented to Guelph Line to enhance the public realm and ease of pedestrian access;
the overhead doors have been removed from the street façade
the parking at grade is fully enclosed, and all access to parking is internal to the site, with turning movements contained on the property;
the north setback has been significantly increased to ensure that future development potential of the abutting plaza is not restricted due to insufficient building separation distance;
the massing of the building has been significantly mitigated through step backs and terracing in combination with the increased setbacks;
a common amenity open space was created at grade in the south west corner of the site; and
the south east corner of the building has been pulled back to accommodate additional pedestrian connectivity and more green open, visible from Guelph Line.
10The Tribunal was advised by Ms. Morgan that all of these revisions bring the proposal into alignment with the Mixed-Use and Residential Mid-Rise Building Guidelines (2019) which are Council approved.
11The witness also demonstrated how the official plan criteria to be considered when reviewing applications for intensification have been addressed by the revised proposal. Most specifically, it was the uncontradicted evidence of the planner that the revised proposal satisfies the following criteria:
s. 2.5.2.a) xiii)
proposals for non-ground oriented housing intensification shall be permitted only at the periphery of existing residential neighbourhoods on properties abutting and having direst vehicular access to major arterial, minor arterial or multi-purpose arterial roads and only provided that the build form, scale and profile of development is well integrated with the existing neighbourhood so that a transition between existing and proposed residential buildings is provided;
and s. 2.5.2.a) x)
where intensification potential exists on more than one adjacent property, any re-development proposals on an individual property shall demonstrate that future re-development on adjacent properties will not be compromised.
The location of the site and the revised massing and setbacks incorporated into the revised proposal meet these official plan intensification criteria.
12It was the shared opinion of both planning witnesses that the intensification at the site was appropriate and consistent with and in conformity with the matters of provincial interest, Provincial Policy Statement, Growth Plan, Regional Official Plan and Official Plan policies to promote complete communities, a range and mix of housing options in well designed developments which are transit supported. It was also their shared opinion that the revised massing and increased setbacks addressed the concerns of the Participants with respect to appropriate transition, height and the amenity of the public realm.
13The Planning witnesses also brought to the attention of the Tribunal Council’s most recent vision for intensification in this Neighbourhood Commercial designation. In November of 2020, the Region approved a new official plan for the City, which designates the former Neighbourhood Commercial as Neighbourhood Centre, a secondary growth area for intensification in the realization of the regional growth targets.
14The new designation, while not yet in force and effect, contemplates mixed use development with heights of up to 11 storeys and therefore provides guidance in this consideration.
15The appeals of the new Official Plan are with the Tribunal for consideration and it is anticipated that the scoping of the appeals will proceed in the new year. Counsel advised that there are no site-specific appeals affecting the subject site.
16With respect to the concerns of the Participants about traffic infiltration and potential turning movements creating safety issues, it is the evidence before the Tribunal that the concerns were not borne out by the Traffic Impact Statement undertaken to support the proposed development, or the review by City transportation engineering staff.
17The Tribunal heard the uncontradicted evidence of Jill Juhkle, which demonstrated that the proposed mixed use development would generate 60 and 69 vehicles in the morning and evening peak road hours respectively, which represents approximately 10% of the current background volumes on the two minor arterials. The additional trips would have but minimal impact on road capacity and will not create the need for any new turning lanes or other traffic management modifications.
18Given that no capacity or level of service issues are projected, it was the opinion of Ms. Juhkle that there would be no attraction for motorists to use St. Clair Avenue as a short cut, particularly as that travel time was estimated to be longer than using the arterials.
19With respect to motorist and pedestrian safety, it was the evidence of Ms. Juhkle that the proposed southerly driveway serving the site was located 18 m from the crosswalk with unobstructed sight lines over flat terrain. Vehicles exiting the driveway would be accelerating from a stopped position, therefore moving more slowly than vehicles in the flow of traffic, and as such, represent no undue safety issue.
20All other movements to and from the site have been designed in accordance with City of Burlington traffic engineering design specifications.
21Other parking related issues are either existing, and therefore enforcement matters, or where construction related, will be addressed through a Construction Management Plan required through site plan approval.
22Similarly, it was the evidence of Mr. Quarcoopome that the issue related to groundwater flow will be addressed through the hydrological work required as part of site plan approval and the necessary Record of Site Condition (“RSC”) which the Region requires as a pre-condition to the commencement of any construction on the site, and is which secured through a Holding provision in the draft zoning instrument before the Tribunal for approval.
CONCLUSIONS
23Having reviewed the sworn evidence, the Participant statement, and heard the oral evidence, the Tribunal is satisfied that the revised proposal addresses the concerns of the neighbours and aligns with the provincial, regional and local planning policy regimes which guide intensification and orderly development of this site.
24The significant re-massing and improved setbacks mitigate the undesirable impacts of the original proposal.
25All apprehensions about potential traffic impacts have been thoughtfully and conservatively analyzed and demonstrated to be technically unfounded.
26The Tribunal accepts the opinions of the witnesses and finds that the revised proposal, and the implementing instruments will result in good planning, and are in the public interest as the development will contribute towards meeting regional housing targets by utilizing existing infrastructure on an underutilized site.
ORDER
27The Tribunal Orders that the appeal is allowed in part, and Orders that the Official Plan of the City of Burlington is modified in accordance with Attachment 1 hereto and forming part of this Order. The Tribunal Orders that the Official Plan, as modified, is approved; and
28The Tribunal further Orders that the appeal against Zoning By-law No. 2020 as amended, of the City of Burlington is allowed in part, and Zoning By-law No. 2020 is further amended as set out in Attachment 2 to this Order. In all other respects, the appeal is dismissed.
“Sharyn Vincent”
SHARYN VINCENT
MEMBER
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.