Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 24, 2022
CASE NO(S).:
OLT-21-001834
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c.P.13, as amended
Applicant and Appellant:
Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc.
Subject:
Request to amend the Official Plan - Failure of City of Burlington to adopt the requested amendment
Description:
To permit the development a 9-storey residential apartment building consisting of 360 units
Property Address:
40, 46, 50, 56, 62, 66, and 70 Plains Road East
Municipality:
Burlington/Halton
OLT Case No.:
OLT-21-001834
OLT Lead Case No.:
OLT-21-001834
OLT Case Name:
Infinity (Plains Road) Corporation 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:
Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc.
Subject:
Application to amend Zoning By-law No. 2020 - Refusal or neglect of City of Burlington to make a decision
Purpose:
To permit the development a 9-storey residential apartment building consisting of 360 units
Property Address:
40, 46, 50, 56, 62, 66, and 70 Plains Road East
Municipality:
Burlington/Halton
OLT Case No.:
OLT-21-001835
OLT Lead Case No.:
OLT-21-001834
Heard:
May 25, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc. (“Applicant/Appellant”)
Denise Baker
City of Burlington (“City”)
Blake Hurley
Region of Halton (“Region”)
Kelly Yerxa
DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was convened for the Applicant’s appeals to the absence of decisions by the City on applications for Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) affecting lands at municipal addresses 40 to 70 Plains Road East, Burlington (“site”).
2The Applicant proposes to redevelop the site by replacing the existing detached dwellings with a nine-storey residential building of 360 units. The Applicant views the site as located along a corridor that is redeveloping with mid-rise buildings within the Major Transit Station Area of the Aldershot GO Station.
3The Applicant’s Affidavit of Service for Notice of this CMC was marked as Exhibit 1.
Parties and Participants
4The statutory Parties are the Applicant and the City.
5The Tribunal granted Party status to the Region in response to its written request and on consent of the Parties. The Region’s issue focusses on potential site contamination, which the Region anticipates can be resolved before the hearing.
6Josh McDougall, legal practitioner representing Ronald Moore and Dianna Bullard (“Requestors”), neighbours to the east of the site, advised of a potential request for Party or Participant status. Upon exchange of information with the Parties following the CMC, Mr. McDougall requested Participant status. While the Applicant noted that the Requestors, at 982 Birchwood Avenue, may reside outside the 120 metre circulation area for applications under the Planning Act, the Tribunal notes that the Requestors’ property is within the same urban block and “around the corner” from the site. The Tribunal now grants combined Participant status to Ronald Moore and Dianna Bullard. Their Request Form was refiled with the reference to “party” deleted.
Mediation
7The Parties agree that their further discussions and potential narrowing of the Issues List (“IL”) could lead to a request for mediation. The Parties will advise the Case Coordinator should Tribunal mediation be sought.
Procedural Order
8The draft Procedural Order (“PO”) reviewed at the CMC was finalized by the Parties and the Tribunal approves the PO as contained in Attachment 1 to this Order. Should the IL be reduced through further exchanges of information and studies, the Parties may request a reduced hearing schedule by contacting the Case Coordinator.
Hearing
9The Parties do not anticipate the need for a further CMC, but will advise the Tribunal should a CMC become necessary.
10The 10-day Hearing will commence at 10 a.m. on Monday, January 23, 2023 by video conference. No further Notice will be given.
GoTo Meeting: https://global.gotomeeting.com/join/660145013
Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889
Access Code: 660-145-013
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:
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 at: 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. The access code is 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 hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing events may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
11The Tribunal Orders its rulings and directions as noted above.
12This Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“S. Tousaw”
S. tousaw
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.
SCHEDULE 1
PROCEDURAL ORDER
ISSUE DATE:
CASE NO(S).: OLT-21-001834
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc.
Subject: Request to amend the Official Plan - Failure of City of Burlington to adopt the requested amendment
Existing Designation: Medium Density Residential
Proposed Designated: Site Specific (To be determined)
Purpose: To permit a 9-storey residential apartment building
Property Address/Description: 40, 46, 50, 56, 62, 66, and 70 Plains Road East
Municipality: City of Burlington
Approval Authority File No.: 505-02/21
OLT Case No.: OLT-21-001834
OLT File No.: OLT-21-001834
OLT Case Name: Infinity (Plains Road) Corporation 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: Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc.
Subject: Application to amend Zoning By-law No. 2020 - Refusal or neglect of City of Burlington to make a decision
Existing Zoning: RM1-346
Proposed Zoning: Site Specific (To be determined)
Purpose: To permit a 9-storey residential apartment building
Property Address/Description: 40, 46, 50, 56, 62, 66, and 70 Plains Road East
Municipality: City of Burlington
Municipality File No.: 520-03/21
OLT Case No.: OLT-21-001834
OLT File No.: OLT-21-001835
Procedural Order
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
The video hearing will begin on January 23, 2023 at 10:00.
The parties’ initial estimation for the length of the hearing is 10 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses, their area of expertise and the order in which they will be called. This list must be delivered on or before September 2, 2022 and in accordance with paragraph 21 below.
Expert witnesses in the same field shall have a meeting on or before October 7, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before October 28, 2022.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before November 25, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.
On or before November 25, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before January 13, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before December 16, 2022, the Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence in accordance with paragraph 21 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 13, 2023.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 13 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before January 13, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is [not] seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
Attachment 1: Parties and Participants
Appellant/Party
Counsel
Contact
Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc.
Denise Baker
WeirFoulds LLP Suite 10, 1525 Cornwall Road Oakville, ON L6J 0B2 Phone: 416-947-5090 dbaker@weirfoulds.com
City of Burlington
Blake Hurley
Legal Department 426 Brant Street Burlington, ON L7R 3Z6 Phone: 905-335-7600 ext. 7611 Blake.hurley@burlington.ca
Region of Halton
Kelly Yerxa
Legal Services Legislative & Planning Services Halton Region 905-825-6000, ext. 7740 KellyG.Yerxa@halton.ca
Participant
Contact
Ronald Moore / Diana Bullard
Josh McDougall, YOUR Legal Services, joshm@yourlegalservices.net
Attachment 2: Issues List
Note: the identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which the issues are appropriate, within the jurisdiction of the OLT, or relevant to the determination at the hearing will be a matter of evidence and argument at the hearing.
City of Burlington
Do the proposed amendments have regard for matters of Provincial interest as outlined in The Planning Act?
Are the proposed Official Plan Amendment and Zoning By-law Amendment consistent with the Provincial Policy Statement (PPS) given the location and context of the subject lands, and the level of intensification proposed, and with specific consideration for PPS sections 1.1.1, 1.1.3.2, 1.1.3.4, 1.1.3.5, 1.2.6.1, 1.4.3, 1.5.1, 1.6.2, 1.6.6.1, 1.6.6.2, 1.6.6.7, 1.6.7.1, 1.6.7.2, 1.6.7.4, 1.7.1, 1.8.1, 2.2.1, 3.2.2, 3.2.3, 4.2, and 4.6?
Are the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019), as amended, given the proposed scale of development and proposed transition of built form to adjacent areas, specifically considering policies 1.2.1, 2.2.1, 2.2.2(3), 2.2.4, 4.2.10, 5.2.5(6), 5.2.5(8)?
Are the proposed Official Plan Amendment and Zoning By-law Amendment in conformity with, and do they maintain the intent of, the policies of the City’s Official Plan, including:
Part I – 3.0 (h)
Part II – 2.7, 2.8, 2.11, 3.0 (3.2, 3.3, 3.4, 3.5, 3.6), 5.0, 6.0 (6.3, 6.4, 6.5, 6.6)
Part III - 2.2.1, 2.2.2, 2.3, 2.4, 2.5.1, 2.5.2, 2.6, 5.0 (5.2, 5.3, 5.4)
Part VIII – Definitions (definitions included in the aforementioned policies)
Is the proposal to develop the property with a single-use residential development an appropriate use for the site, given the site’s location within the Plains Road Mixed-Use Corridor designation and a Major Transit Station Area?
Does the Proposed Development represent an appropriate building height, level of density and intensification for the subject lands?
Does the Proposed Development have appropriate regard for the Council-endorsed land use vision and built form concept for the Aldershot Corners Major Transit Station Area?
Does the Proposed Development have appropriate regard for City Official Plan Amendment #119, including policies in Part II section 3.11?
Does the Proposed Development represent appropriate urban design in addressing matters including height, density, built form, massing, bulk, scale, siting, transitions, building articulation, setbacks, stepbacks, building width, spacing, yards, buffers, and screening, having regard for the site and the character of the surrounding lands?
Does the Proposed Development have appropriate regard for the applicable Council-approved design guidelines, including the Design Guidelines for Mixed-Use and Residential Mid-Rise Buildings (2019), Stormwater Management Design Guidelines (2020), and Plains Road Urban Design Guidelines (2006)?
Does the Proposed Development provide for a transition in built form, height, massing, scale, siting, and setbacks that can be appropriately integrated with the adjacent properties and surrounding area, given the location and context of the subject lands?
Does the Proposed Development provide for appropriate streetscapes with a pedestrian scale supported by appropriate built form; adequate space for vegetation, utilities, street furniture, and clear paths of travel; appropriate land uses at grade with consideration for the site’s context; and appropriate public-private interface, with consideration for the site’s context and the proposed land use at grade?
Does the Proposed Development provide indoor and outdoor amenity area in sufficient amounts and with appropriate configuration and design to accommodate the leisure and recreation needs of future residents?
Would the Proposed Development result in excessive and/or inappropriate shadow or wind impacts on the subject property, adjacent and nearby public realm, or nearby residential properties, and does the proposed development have appropriate regard for the City’s Pedestrian-Level Wind Study Guidelines and Terms of Reference (2020) and Shadow Study Guidelines and Terms of Reference (2020)?
Does the proposed development cause negative impacts on the ability of adjacent properties to redevelop in accordance with the land use designations and policies of the new Official Plan?
Does the proposed development represent good land use planning?
Would the Proposed Development result in any unacceptable negative impacts to the subject property and/or the adjacent properties relating to stormwater, groundwater, and related matters?
Does the proposed development provide sufficient space to allow for all elements of the proposed development (including underground components such as shoring wall, wall piles and caissons, tie-backs and anchors, stormwater tank, exterior drainage systems, etc.) to be contained within the subject property?
Does the proposed development comply with the Ministry of Environment, Conservation and Park NPC-300 Environmental Noise Guidelines?
Does the proposed design provide for appropriate grading, drainage, and servicing?
Would the proposed development result in any unacceptable negative hydrogeological impacts on the subject property or the surrounding area?
Would the proposed development result in any unacceptable negative geotechnical impacts on the subject property or on the surrounding area?
Have matters of site contamination and remediation been adequately addressed to ensure the appropriateness of the proposed use on the subject property, and to ensure no negative impacts on the surrounding properties?
Does the proposed development comply with any easements, constraints, or encumbrances that are registered on the property?
Does the design of the proposed development provide appropriate landscaping in addressing matters such as stormwater management, environmental impacts, and contributing to a high quality of urban design?
Does the proposed development maximize vegetation and pervious surfaces, integrate green infrastructure, appropriately preserve existing public and private trees, and provide adequate new and/or replacement trees?
Does the proposed development provide adequate setbacks and landscape buffers and achieve an appropriate transition to surrounding properties?
Does the proposed development provide sufficient parking? Is there sufficient justification for the proposed reduced parking rates?
Does the proposed design of the ground floor and underground parking garage of the proposed development allow for appropriate ramp slopes, visibility, width, size, and location of parking spaces (including accessible parking), drive aisle widths, structural column spacing, pedestrian crossings/connections?
Does the proposed development provide opportunities to comply with the City’s site plan design guidelines including with respect to loading, circulation, and related matters?
Region of Halton
Site Contamination
- Is a “H” Holding provision required to be included in the proposed zoning by-law to require the completion of a Record of Site Condition pursuant to subsections 147(17) and (18) of the Region’s Official Plan, to the Region’s satisfaction?
Attachment 3: Order of Evidence
Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc.
City of Burlington
Region of Halton
Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc., in reply
Attachment 4
Attachment to Procedural Order
Meaning of terms used in the Procedural Order:
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
- direct examination by the party presenting the witness;
- direct examination by any party of similar interest, in the manner determined by the Tribunal;
- cross-examination by parties of opposite interest;
- re-examination by the party presenting the witness; or
- another order of examination mutually agreed among the parties or directed by the Tribunal.