Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 23, 2021

CASE NO(S).: PL200150 PL210040

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1085 Clearview Limited Partnership Appellant: 1246235 Ontario Inc. Appellant: 1602211 Ontario Ltd. Appellant: 2084 Lakeshore Holdings Ltd. Et Al; and others Subject: Proposed Official Plan Amendment for Burlington New Official Pan Municipality: City of Burlington LPAT Case No.: PL210040 LPAT File No.: PL210040 LPAT Case Name: 1085 Clearview Limited Partnership v. Halton (Reg. Mun)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, C. P. 13, as amended

Appellant: Sofina Foods Inc. Appellant: Wal-Mart Canada Corp. Appellant: Reserve Properties Ltd. Appellant: Vrancorp Group; and others Subject: Proposed Official Plan Amendment No. 119 Municipality: City of Burlington LPAT Case No.: PL200150 LPAT File No.: PL200150 LPAT Case Name.: Sofina Foods Inc. v. Burlington (City.)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Wal-Mart Canada Corp. Appellant: Burlington Healthcare Centre Inc. Appellant: Better Life Development Appellant: Emshih Developments Inc.; and others Subject: By-law No. 2020.418 Municipality: City of Burlington LPAT Case No.: PL200151 LPAT File No.: PL200151

PROCEEDING COMMENCED UNDER subsection 12(1) of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sched. 1, and Rule 9.01 of the Tribunal’s Rules of Practice and Procedure

Motion By: Burlington Healthcare Centre Inc. Purpose of Motion: Request for Directions Heard: August 4, 2021 via video hearing

APPEARANCES:

Parties

Counsel

Regional Municipality of Halton

K. Yerxa

City of Burlington

A. Biggart B. Hurley

Appellants and Added Parties listed in Attachment 1

MEMORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON AUGUST 4, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Case Management Conference was scheduled to consider hearing two related files together:

PL200150, being Official Plan Amendment 119 (“OPA”) and Zoning By-law Amendment No. 2020-418 (“ZBA”) passed by the City of Burlington (“City”) on January 30, 2020; and
PL210040, being a new Official Plan (“OP”) adopted by the City on April 26, 2018 and modified and approved by the Regional Municipality of Halton (“Region”) on November 30, 2020.

2The OPA and ZBA raise matters of an urban growth centre and major transit station area arising from a planning study during Interim Control By-law No. 2019-10 (“ICBL”). Similar matters are raised again in appeals to the new OP. The ICBL remains in effect given the appeals lodged against the ZBA.

HEAR TOGETHER

3The Tribunal heard submissions on whether these files should be consolidated or heard together. General agreement was received for hearing these matters together for case management purposes, and deferring a final decision for holding a merits hearing together when more details are known.

4The Parties acknowledge that the issues are complex and evolving, given that:

the Region recently approved Regional OPA 48 addressing the location of urban growth centres and major transit station areas;
the City advised today that it will engage with the Parties to lift the development freeze of the ICBL for sites outside of the ZBA area; and
the lengthy Issues List (“IL”) compiled by the Region and City requires grouping, consolidation, refinement, and may substantially change in length and scope based on the aforementioned developments.

5The Tribunal ordered that the appeals to the OPA/ZBA and to the new OP will be heard together for case management purposes, and a decision on whether the merits hearings will be heard together is deferred until more information is available (e.g., grouped appeals; final ILs; hearing phases).

6Given that the ICBL is not before the Tribunal, the Parties will discuss how best to terminate its effect on certain properties or areas, such as the City’s repeal of parts of the ICBL or a grouped Motion to the Tribunal seeking a decision on the ZBA with the result that the ICBL ceases.

Parties and Participants

7FLG Kerns Inc. (“FLG”) prefiled a written request for Party status in the new OP appeals for its property at 1600 Kerns Road. FLG supports the applicable policies in the OP under appeal and may wish to address matters raised on the IL that could affect its property. If such issues are resolved, FLG intends to withdraw its added Party status. Noting no objections to the request, the Tribunal granted FLG added Party status having found that it presents reasonable grounds under s. 17(44.2)2 of the Planning Act (“Act”).

8Anne and David Marsden, previously granted Participant status, prefiled a Participant Statement on the new OP, and such statement is on file for the information of all Parties.

PROCESS

9As directed from the last CMCs for these matters, the Region filed a draft Procedural Order (“PO”) in concert with the City, but acknowledged that its some 50 pages of IL require substantial work and discussion to plan a phased and efficient hearing. Some Parties request an expedited process in the event that a solution is not found to release them from the ICBL. Recognizing that such solution is not for the Tribunal to direct, the Tribunal ruled that the process proposed by the Region and City and generally accepted by the Parties be followed:

by Wednesday, September 8, 2021, the Region and City, in consultation with the Parties, will circulate a draft PO with grouped appeals, refined ILs and proposed hearing phases;
by Friday, September 24, 2021, the Appellants and added Parties will submit any responding comments on the draft PO; and
on Friday, October 15, 2021 at 10 a.m., the next CMC will be held by video conference. No further notice will be given. This Member is not seized but will remain involved for case management purposes if possible under the Tribunal’s Calendar.

10Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/920234773

Access code: 920-234-773

11Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

12Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free): 1-888-455-1389 or +1 (647) 497-9391. The access code is 920-234-773.

13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

Motion

14A Motion was deferred from the April 26, 2021 CMC for PL200150 at the Parties’ request to enable the City to complete its review and receive Council’s direction. The Parties consented to proceeding today, with the City advising of no opposition.

15409 Brant St. Ltd. (“409”) filed a Motion seeking relief from the City’s ICBL for 401-413 Brant Street, 444 John Street and 448-450 John Street (the “site”). The Motion Record was marked as Exhibit 1 and a book of authorities was received.

16409 is an Appellant to OPA 119 and, without objection, the Tribunal granted Party status to 409 for the ZBA for the purpose of hearing this Motion. The City does not oppose the Motion and neither it nor any other Party filed a Notice of Response to Motion.

17Of importance here is the subtle difference between the Motion request and the Decision herein. 409 requests “an order removing the properties … from the area covered by Interim Control By-law No. 10-2019.” However, the Tribunal finds, with the agreement of the Parties, that such direct order is not available under s. 38 of the Planning Act.

18The ICBL itself is not before the Tribunal. What is before the Tribunal is a ZBA passed by the City following a study that was commissioned as required for an ICBL. With appeals lodged against the ZBA, the ICBL remains in effect until an order is rendered on the ZBA, as follows (emphasis added):

38(6.1) If the period of time during which an interim control by-law is in effect has expired and the council has passed a by-law under section 34 consequent on the completion of the review or study within the period of time specified in the interim control by-law, but there is an appeal of the by-law under subsection 34(19), the interim control by-law continues in effect as if it had not expired until the date of the order of the Tribunal or until the date of a notice issued by the Tribunal under subsection 34(23.1) unless the interim control by-law is repealed.

19Under s. 38(6) of the Act, one of the ways that prior zoning returns in force is where “the extent of the area covered” by the ICBL “is reduced” (emphasis added):

(6) Where the period of time during which an interim control by-law is in effect has expired and the council has not passed a by-law under section 34 consequent on the completion of the review or study within the period of time specified in the interim control by-law, or where an interim control by-law is repealed or the extent of the area covered thereby is reduced, the provisions of any by-law passed under section 34 that applied immediately prior to the coming into force of the interim control by-law again come into force and have effect in respect of all lands, buildings or structures formerly subject to the interim control by-law.

20Thus, the nuance here agreed by the Parties is that if the Tribunal renders an order on the ZBA as it relates to this site only, then the ICBL will statutorily cease for that site. Put another way, the Tribunal may make a finding by order on the ZBA which has the effect of releasing a property from the ICBL pursuant to s. 38(6.1) of the Act.

21This Motion is similar to others granted by the Tribunal for properties affected by the continued ICBL. Two factors have resulted in these decisions: the ICBL affects a large area of the City but its resulting ZBA arising from the study affects only a small land area in the vicinity of the Burlington GO Station. These factors result in many properties that are seeking development approvals to remain “frozen” by the ICBL despite not being affected by the implementing ZBA. As noted earlier at this CMC, the City plans to release the “freeze” for various Appellants and added Parties, but until then, the ICBL remains in effect within and outside of the ZBA area.

22409 seeks the reinstatement of the ZBL provisions that applied immediately prior to the ICBL. The site is regulated by OPA 113 and ZBA 2020.399 resulting from 409’s applications to redevelop the site with a mixed-use building with retail at grade and dwelling units above. An 18 storey building is permitted. Given these prior approvals, 409 seeks this Motion to unencumber the site from the ICBL.

23Glenn Wellings, Registered Professional Planner, provided a written affidavit and oral evidence at this hearing. The Tribunal had previously qualified Mr. Wellings to provide opinion evidence in land use planning for a similar Motion under this file. He supports releasing the site from the ICBL by way of an Order related to the ZBA, noting that the ZBA affects only a relatively small area in the vicinity of the GO Station whereas 409’s site is located much further south, being across Brant Street from City Hall within downtown Burlington. Mr. Wellings confirms that the proposed development of the site does not offend OPA 119, is not affected by the ZBA, and will comply with ZBA 2020.399. He further opines that making a finding here that the ZBA does not apply to this site satisfies all statutory tests: suitable regard for s. 2 of the Act; consistent with the Provincial Policy Statement, 2020; conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020; and conforms with the Region and City’s Official Plans.

24On the uncontested planning evidence of Mr. Wellings, and on the consent of the Parties, the Tribunal granted the Motion, as set out below. The Tribunal accepts that while the ICBL is not before the Tribunal, it may make a finding by Order on the ZBA which has the effect of releasing a property from the ICBL pursuant to s. 38(6.1) of the Act. In this case, the ZBA has no effect on the site and the provisions of ZBA 2020.399 will resume in effect upon this Decision. The Tribunal relies in part on its broad powers under its enabling legislation, including s. 9(1) of the Ontario Land Tribunal Act and s. 23(1) of the Statutory Powers Procedure Act.

25For clarity, the Tribunal is not approving the ZBA in relation to the site, but rather is issuing an Order of finding on the ZBA for the purpose of invoking a site-specific release of the ICBL. Such finding is that the ZBA does not apply to this site. The resulting reinstatement of prior zoning is conducted by the Act itself.

ORDER

26The Tribunal Orders that 409’s Motion is granted only to the extent of finding that ZBA 2020-418, enacted to implement the results of the study conducted for ICBL 2019-10, does not apply to this site, and on such Order, s. 38(6.1) of the Act is invoked to release the site from the ICBL and reinstate the provisions of ZBA 2020.399.

27The CMC rulings and directions as issued orally and set out in this Decision are so ordered.

“S. Tousaw”

S. tousaw

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.

PL210040

ATTACHMENT 1

List of Appellants, Parties and Participants

Appellant Name

No.

Does the Appellant have an appeal under File PL200150 OPA 119?

Counsel/ Representative

Issues List received.

Ontario Stone, Sand & Gravel Association (OSSGA)

David White and Marc Kemerer

Yes

United Burlington Retail Portfolio Inc.

Aaron Platt/ Samantha Lampert

Yes

Crystal Homes

Michael Melling/Alex Lusty

Yes

Landform Development Group and 2413350 Ontario Inc.

Yes

Denise Baker

Yes

1085 Clearview Limited Partnership (1085 Clearview GP Inc.)

Denise Baker

Yes

West End Home Builders Association

Yes

Denise Baker

Yes

440 Elizabeth Street Holdings Ltd

Yes

Denise Baker

Yes

2084 Lakeshore Holdings Ltd. And 2084 Lakeshore (2048) LP and Ltd

Denise Baker

Yes

Emshih Developments Inc. (800 Burloak Drive)

Nancy Smith/Jennifer Meader

Yes

Emshih Developments Inc. (895-901 Brant and 2250 Fairview Street)

Yes

Nancy Smith/ Jennifer Meader

Yes

Emshih Developments Inc. (372-380 and 433-439 Brant Street)

Yes

Nancy Smith/Jennifer Meader

Yes

Carriage Gate Homes Inc., Lakeshore (Burlington) Inc. and Old Lakeshore (Burlington) Inc.

Scott Snider/Jennifer Meader

Yes

1820473 Ontario Inc. and Molinaro Group of Companies

Scott Snider/Jennifer Meader

Yes

Victoria-Brant Ltd., 2022 Victoria Avenue Inc., 2018 Victoria Avenue Inc., and 1664450 Ontario Inc.

Scott Snider/Jennifer Meader

Yes

Renimmob Properties Ltd.

Scott Snider/Jennifer Meader

Yes

Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd.

Scott Snider/Jennifer Meader

Yes

Brookfield Properties, InteRent REIT and CLV Group Inc. (Fairview Limited Partnership)

Yes

Scott Snider/Jennifer Meader

Yes

Withdrew appeal

N/A

New Horizon Development Group

Patrick Harrington/ Leo Longo

Yes

Brad Wilson

Self-represented

Yes

Wal-Mart Canada Corp.

Yes

Roslyn Houser

Yes

Millcroft Greens Corp.

Patrick Harrington/Leo Longo

Yes

RK (Burlington Mall) Inc.

Joel D. Farber

Yes

Withdrew Appeal

Pine Street Burlington Corp.

Yes

Denise Baker

Yes

Adi Developments (Masonry) Inc.

Yes

Denise Baker

Yes

Withdrew Appeal

N/A

Withdrew Appeal

N/A

RioCan Holdings Inc.

Joel D. Farber

Yes

335 Plains Holdings Inc. and 355 Plains Holdings Inc.

Denise Baker

Yes

Camarro Developments Inc. (789-795 Brant Street)

Denise Baker

Yes

Camarro Developments Inc. (519-527 Brant Street)

Denise Baker

Yes

Camarro Developments Inc. (1062 and 1074 Cooke Blvd)

Denise Baker

Yes

Infinity Developments Group Inc.

Denise Baker

Yes

Spruce Partners Inc. and Amico Properties Inc.

Yes

Denise Baker

Yes

5135 Fairview Holdings Inc.

Denise Baker

Yes

S & G Consulting Inc., Branthaven 735 Oval Inc., and Branthaven Development Corp.

Yes

Denise Baker

Yes

1602211 Ontario Ltd.

Denise Baker

Yes

William Love

Self-Represented

Yes

Nelson Aggregate Co.

David White/Marc Kemerer

Yes

Mac’s Convenience Stores Inc.

Max Laskin/ Matthew Lakatos-Hayward

Yes

Core FSC Lakeshore GP Incorporated

Yes

David Bronskill/ Matthew Lakatos-Hayward

Yes

Vrancorp Group

Yes

David Bronskill/ Matthew Lakatos-Hayward

Yes

Reserve Properties Ltd.

Yes

David Bronskill/ Matthew Lakatos-Hayward

Yes

2584979 Ontario Inc.

David Bronskill/ Matthew Lakatos-Hayward

Yes

Burlington Healthcare Centre Inc.

Yes

Andrew Jeanrie

Yes

Emshih Development Inc. (901 Guelph Line)

Nancy Smith/ Jennifer Meader

Yes

Mattamy James Street Limited Partnership

Yes

Scott Snider/ Jennifer Meader

Yes

Parties

Fairview GO Ltd.

Scott Snider/Jennifer Meader

We Love Millcroft represented by Daintry Klein (unincorporated association) (sheltering under the Millcroft Green Appeal)

Alex Ciccone/Peter Pickfield

Millcroft Coalition Against Development (sheltering under the Millcroft Green Appeal)

Alex Ciccone/Peter Pickfield

Conserving Our Rural Ecosystems of Burlington Inc. (“CORE Burlington”)

David R. Donnelly/ Denisa Mertiri

Sofino Foods (dependant on whether OPA 119 is s consolidated)

Yes

Patrick Duffy

Seeking Party Status at Aug 4, 2021 CMC FGL Kerns Inc.

Denise Baker

Participants

Tom Muir

Self-Represented

Ann and David Marsden

Self-Represented

1085 Clearview Limited Partnership v. Halton (Reg. Mun), 2021 CanLII 80819

Case Summary

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

APPEARANCES:

MEMORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON AUGUST 4, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

HEAR TOGETHER

Parties and Participants

PROCESS

Motion

ORDER

ATTACHMENT 1