Lakeshore (Burlington) Inc. v. Burlington (City), 2022 CanLII 21241

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 18, 2022

CASE NO(S).:

OLT-22-002239

(Formerly) PL200040

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Lakeshore (Burlington) Inc.

Subject:

Request to amend the Official Plan - Failure of the City of Burlington to adopt the requested amendment

Existing Designation:

Downtown Mixed-Use Centre – Downtown Core Precinct

Proposed Designated:

Site specific amendment to permit increased height and density

Purpose:

To permit a 29-storey mixed use building with 675 square metres of ground floor retail/commercial space, 280 residential units and the adaptive reuse of the heritage building located at 383-385 Pearl Street as live/work units

Property Address/Description:

2069-2079 Lakeshore Road, 383-385 Pearl Street

Municipality:

City of Burlington

Approval Authority File No.:

505-06/18

OLT Case No.:

OLT-22-002239

Legacy Case No.:

PL200040

OLT Lead Case No.:

OLT-22-002239

Legacy Lead Case No.:

PL200040

OLT Case Name:

Lakeshore (Burlington) 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:

Lakeshore (Burlington) Inc.

Subject:

Application to amend Zoning By-law No. 2020 - Refusal or neglect of the City of Burlington to make a decision

Existing Zoning:

DC - Downtown Core

Proposed Zoning:

Modified ‘DC’ with site specific exception to increase height, density, parking, amenity area and setbacks

Purpose:

To permit a 29-storey mixed use building with 675 square metres of ground floor retail/commercial space, 280 residential units and the adaptive reuse of the heritage building located at 383-385 Pearl Street as live/work units

Property Address/Description:

2069-2079 Lakeshore Road, 383-385 Pearl Street

Municipality:

City of Burlington

Municipality File No.:

520-08/18

OLT Case No.:

OLT-22-002241

Legacy Case No.:

PL200041

OLT Lead Case No.:

OLT-22-002239

Legacy Lead Case No.:

PL200040

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by:

Lakeshore (Burlington) Inc.

Subject:

Site Plan

Property Address/Description:

2069-2079 Lakeshore Road, 383-385 Pearl Street

Municipality:

City of Burlington

OLT Case No.:

OLT-22-002242

Legacy Case No.:

PL200640

OLT Lead Case No.:

OLT-22-002239

Legacy Lead Case No.:

PL200040

Heard:

March 11, 2022 by video hearing (“VH”)

APPEARANCES:

Parties

Counsel

Lakeshore (Burlington) Inc.

Jennifer Meader

Anna Toumanians

City of Burlington

Blake Hurley

Region of Halton

Kelly Yerxa

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON MARCH 11, 2022 AND ORDER OF THE TRIBUNAL

1The Parties to this proceeding are the City of Burlington (“City”), the Upper Tier Municipality Region of Halton (“Region” or “Halton”) and Lakeshore (Burlington) Inc. (“Appellant” or “Lakeshore”). The Appellant owns the lands located at the municipal address of 2069 Lakeshore Road, 383-385 Pearl Street in the City (“Subject Site”) and has proposed a mixed-use development including a 29-storey residential tower on that site (“Development”). As part of the Development, the Appellant also proposed the adaptive reuse of the heritage building located at the Subject Site as live/work units.

2The Ontario Land Tribunal (“OLT” or “Tribunal”) delivered a Decision granting Lakeshore’s appeal dated October 27, 2021 (“2021 Decision”). As noted in paragraph [85] of the 2021 Decision, the Tribunal invited the Parties to seek its assistance in the event that the Parties were unable to agree on the final form and content of the amendment of the City’s Zoning By-law 2020 (“ZBA”) as ordered in paragraph [82] 2. or had any other difficulties or disputes concerning the implementation of the Orders made in the 2021 Decision.

3The Tribunal also noted in the 2021 Decision that the Parties had sought to defer the site plan aspect of the Appellant’s appeal, pending further negotiations and the outcome of the appeal.

4This matter came on for a hearing before the OLT on March 11, 2022 to deal with the Parties’ settlement of the remaining issues relating to the ZBA and also regarding the agreement relating to the site plan for the Development on the Subject Site.

5On consent of all Parties, David Faletta, a professional Ontario urban planner, was qualified to provide opinion evidence on land use planning matters. He provided an affidavit sworn March 10, 2022, comprising a total of 31 pages, including Exhibits A to E inclusive thereto. In Exhibit E, was a list of 41 drawings, plans and other documents related to the City’s Site Plan approval, all of which were separately provided to the Tribunal.

6Mr. Faletta opined in his Affidavit and in his oral evidence before the Tribunal at the VH that:

1. He adopted the opinions expressed by Peter Smith in his testimony for the Appellant in the previous appeal hearing and as set out in Mr. Smith’s Witness Statement and Reply Witness Statement all as described in great detail in the 2021 Decision;

2. In accordance with the 2021 Decision, the Applicant and the City have been engaged in further discussions regarding the final form and content of the ZBA and the Site Plan approval. These discussions have culminated in an official plan amendment (“OPA”) included as Exhibit C to his Affidavit, the ZBA included as Exhibit D, and a Site Plan, list of related drawings and Conditions of Site Plan approval, included as Exhibit E thereto;

3. The final OPA amends the site-specific policies for the Subject Site in order to facilitate the proposal development and permit a 30-storey (29-storeys building plus a partially occupied mechanical penthouse) mixed use building consisting of at-grade retail and service commercial uses with 320 residential units above and the conservation of a portion of the heritage building at 383-385 Pearl Street to be use for live/work purposes. The OPA is the same as the one presented to the Tribunal in July 2021 by the Applicant and is now being provided in the format acceptable to the City;

4. The final ZBA and the Site Plan approval reflect the following features:

(a) The retention, relocation and adaptive reuse of a portion of the Acland Houses heritage building as live/work units;

(b) The demolition of two low-rise commercial buildings;

(c) The development of a new 29-storey mixed use building including a 4-storey base building pulled close to the Pearl Street and Lakeshore Road property lines. Two additional levels for rooftop mechanical equipment are also shown;

(d) A total of 318 new residential units are proposed, including two live/work units, 220 one-bedroom units, 94 two-bedroom units and 2 three-bedroom units;

(e) A total gross floor area (“GFA”) of 23,415.5 square metres is proposed, including the retained portion of the existing building, resulting in an overall density of 9.43 Floor Space Index; and

(f) The proposed GFA includes 22,146 square metres of residential GFA, 501.6 square metres of non-residential GFA, 213 square metres of live/work space and 555 square metres of indoor amenity.

5. The ZBA rezones the Subject Site to a site-specific DC-511 (Downtown Core), Exception 511, Zone. Modifications to the parent DC Zone include:

(a) Deeming the width of Lakeshore Road as 24 metres.

(b) Permitting retail, service commercial, all office uses and a residential lobby on the ground floor of an apartment building and the retained heritage building.

(c) Modified building setbacks for the podium, tower, balconies, any outdoor pools, underground parking structures, and a visibility triangle.

(d) Modified maximum building height requirements for the podium, tower, and mechanical elements.

(e) The inclusion of a maximum number of residential units.

(f) An increased floor area ratio.

(g) A minimum amount of retail, service commercial and office uses on the ground floor.

(h) Maximum floor areas for each of the podium, tower and mechanical elements.

(i) A reduction in the minimum parking ratio for apartment dwelling units.

(j) The requirement for community benefits to be provided.

6. The final Conditions of Site Plan approval are included as Exhibit E. A total of 22 conditions would be imposed, including the standard City conditions and conditions to address the requirements of outside agencies, including the Region and specific conditions relating to the particular elements of the Site Plan;

7. The OPA, ZBA, Site Plan, list of related drawings and the Conditions of Site Plan approval appropriately implement the development and satisfy all the applicable legislative tests, including s. 41(4) of the Planning Act, since the Site Plan:

(a) Shows the location of all buildings and facilities and has regard for accessibility for persons with disabilities.

(b) Along with the building elevations, shows the building and cross-section views, the massing and conceptual design of the proposed building, its relationship to adjacent buildings, streets and exterior public areas.

(c) Illustrates that interior walkways are connected to exterior walkways and ultimately connects to streets.

(d) Along with the building elevations, illustrates the exterior appearance of the proposed building.

(e) Along with the landscape plan, illustrates the landscaping, paving materials, street furniture, and curb ramps.

(f) Has regard for accessibility for persons with disabilities.

8. The proposed Conditions of Site Plan approval appropriately address the matters in s. 41 (7) since the Site Plan:

(a) Provides a 2-metre widening along Lakeshore Road.

(b) Includes access ramps, curbings and traffic direction signs.

(c) Locates all vehicular loading and parking facilities within the ground floor and below grade.

(d) Includes a comprehensive walkway system connecting the building, including the elevator lobby, to the abutting municipal sidewalks.

(e) Includes facilities designed to have regard for accessibility for persons with disabilities.

(f) Will provide adequate lighting as required by the Conditions of Site Plan approval.

(g) Has been designed to adequately mitigate any unacceptable built form impacts.

(h) Includes storage and waste collection areas.

(i) Includes stormwater management and servicing facilities to address storm, surface and wastewater.

(j) Will ensure that the building is maintained to the satisfaction of the City through Conditions of Site Plan approval; and

(k) Approval requires the Owner to enter into a site plan agreement.

9. The OPA, ZBA, Site Plan, list of related drawings and the Conditions of Site Plan approval are consistent with the Provincial Policy Statement 2020, conform with the Growth Plan 2019 and conform with the City of Burlington Official Plan, once amended;

7The Tribunal accepts the evidence of Mr. Falletta and is satisfied that the Parties’ resolution meets the requirements of s. 41(4) and s. 41(7) of the Planning Act. The Tribunal is also satisfied that the Parties’ settlement is reasonable and in accordance with s. 3 of the Planning Act and is consistent with the provisions of the Provincial Policy Statement, 2020 and conforms to the Growth Plan 2019, the City’s Official Plan and represents good planning.

8The Parties have asked the Tribunal to schedule another hearing date in the event that issues arise with respect to the implementation of the Orders set out in paragraph [14] below.

9The Tribunal has scheduled a one (1) day VH to commence at 10 a.m. on Thursday, April 28, 2022 as follows:

https://meet.goto.com/656004293

Access Code: 656-004-293

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

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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

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 VH 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.

ORDERS

14The Tribunal Orders as follows:

1. For the Official Plan Amendment appeal contained within OLT File No. OLT-22-002239:

a. The application to amend the City of Burlington Official Plan by Lakeshore (Burlington) Inc. respecting the lands located at 2069-2079 Lakeshore Road, 383-385 Pearl Street is approved in accordance with Attachment 1 attached hereto;

2. For the Zoning By-Law Amendment appeal contained within OLT File No. OLT-22-002241:

a. The application to amend City of Burlington Zoning By-law No. 2020 by Lakeshore (Burlington) Inc. respecting the lands located at 2069-2079 Lakeshore Road, 383-385 Pearl Street is approved in accordance with Attachment 2 attached hereto;

3. For the Site Plan appeal contained within OLT File No. OLT-22-002242:

a. The proposed Site Plan and list of related drawings respecting the lands located at 2069-2079 Lakeshore Road, 383-385 Pearl Street are approved in accordance with Attachment 3 attached hereto and subject to the Conditions of Site Plan Approval attached as Attachment 4.

15This Member is seized.

“William R. Middleton”

william r. middleton

MEMBER

Ontario Land Tribunal

Website: www.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.

OLT-22-002239 – Attachment 1

OLT-22-002239 – Attachment 2

OLT-22-002239 – Attachment 3

OLT-22-002239 – Attachment 4