4880 Valera Road LP v. Burlington (City), 2022 CanLII 85601

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 16, 2022

CASE NO(S).:

OLT-22-003792

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant

4880 Valera Road LP

Subject:

Minor Variance

Description:

To permit a proposed medical (dental) office on the ground floor of a mixed-use apartment

Reference Number:

540-02-A-093/2021

Property Address:

3200 Dakota Common

Municipality/UT:

Burlington/Halton

OLT Case No:

OLT-22-003792

OLT Lead Case No:

OLT-22-003792

OLT Case Name:

4880 Valera Road LP v. Burlington (City)

Heard:

September 1, 2022 by video hearing

APPEARANCES:

Parties

Representative

4880 Valera Road LP

Denise Baker

City of Burlington

Lauren Pinder

MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER ON SEPTEMBER 1, 2022 AND ORDER OF THE TRIBUNAL

1This decision concerns the hearing of the Appeal by 4880 Valera Road LP (the “Appellant”) pursuant to s. 45(12) of the Planning Act (the “Act”) for the property municipally known as 3200 Dakota Common, Burlington (the “Subject Property”).

2The minor variance Application is to permit a dental office and pharmacy as a use of the commercial space. Previous to the Application, a pharmacy was a permitted use of the Subject Property under Exception 493 of Zoning By-law 2020, as amended.

3The City of Burlington (the “City”) Planning Staff did not recommend the approval of the minor variances requested as the opinion of the Planning Staff was that the minor variances did not meet the four tests as set out in s. 45 of the Act.

4The Subject Lands are a part of a high-density mixed-use development which includes two apartment buildings, townhouses and three floors of underground parking. There are a total of 414 units and 477 parking spaces for the development. On the ground floor of apartment building “B” there is a 201 square metre commercial space. Building “B” fronts onto Appleby Line and Thomas Alton Boulevard. At the time of the application, the development was nearing completion.

5The Subject Property is zoned RAL4-493, Alton Community Residential, under Zoning By-law 2020, as amended.

6The Application was originally submitted for review in August, 2021 and heard at the Committee of Adjustment (the “COA”) meeting on November 17, 2021. At that meeting, the Applicant was requesting two minor variances for approval:

(1) To permit a proposed medical office on the ground floor of Building “B” which is not a permitted non-residential use on the ground floor of an apartment building under Exception 493.

(2) To permit 6 existing parking spaces for a proposed medical office use instead of the minimum required 11 parking spaces.

7The Application was deferred at the request of the Applicant in order to work with Planning Staff to revise the Application.

8The Application came before the COA again on March 2, 2022. The Application had been revised and after working with Planning Staff, it was agreed upon that the only variance that was required was minor variance No. 1. The Applicant and Planning Staff had come to an agreement that the Applicant would use the parking spaces above and below ground to meet the minimum 11 parking spaces required.

9Planning Staff had recommended that the Application did not meet one or more of the tests of a minor variance, thus, did not recommend approval of the Application. The COA vote resulted in a tie, as such the Application was not approved.

THE HEARING

10At the beginning of the hearing the Applicant Document Book was marked as Exhibit No. 1.

11The Tribunal heard from one witness, that being Mr. Franz Kloibhofer. Mr. Kloibhofer took the Tribunal through his Curriculum Vitae. He has appeared as an expert witness to the Tribunal in previous hearings. Mr. Kloibhofer was affirmed and approved as an expert witness to give opinion evidence in land use planning.

LEGISLATIVE FRAMEWORK

12An appeal pursuant to s.45 of the Planning Act is a hearing de novo. In this case, the Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) have not been met. These tests are that the variance(s):

(a) maintains the general intent and purpose of the Official Plan;

(b) maintains the general intent and purpose of the Zoning By-law;

(c) is minor in nature; and

(d) is desirable for the appropriate development or use of the land, building or structure.

EVIDENCE

13Mr. Kloibhofer went through the history of the property. He has been involved with the Subject Property since 2017. This is when the property started the process of its development into the current high density mixed-use.

14Mr. Kloibhofer opined that the proposal is to permit a dental office and a pharmacy where a pharmacy is already a permitted use. This use was confirmed by City Staff in their report to the COA.

Planning Act (“Act”)

15In his evidence, Mr. Kloibhofer opined that all planning decisions shall have sufficient regard for matters of provincial interest. He opined that s. 2 subsections (h), (i), (p) and (q) met the requirements of the Planning Act:

2. The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out the responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

h) the orderly development of safe and healthy communities;

i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;

p) the appropriate location of growth and development;

q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;

16In his professional opinion, the proposal has sufficient regard for matters of provincial interest.

Provincial Policy Statement (2020) (“PPS”)

17As states in s. 3(5) of the Planning Act, all land use decisions are required to be consistent with the PPS. Mr. Kloibhofer gave evidence that Policies 1.1.1, 1.1.3 and 1.1.3.2 demonstrate that the proposal is consistent with the PPS:

1.1.1 Healthy, liveable and safe communities are sustained by:

r) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

s) accommodating an appropriate affordable and market-based range and mix of residential types (including single-detached, additional residential units, multi-unit housing, affordable housing and housing for older persons), employment (including industrial and commercial), institutional (including places of worship, cemeteries and long-term care homes), recreation, park and open space, and other uses to meet long-term needs;

t) avoiding development and land use patterns which may cause environmental or public health and safety concerns;

u) avoiding development and land use patterns that would prevent the efficient expansion of settlement areas in those areas which are adjacent or close to settlement areas;

v) promoting the integration of land use planning, growth management, transit-supportive development, intensification and infrastructure planning to achieve cost-effective development patterns, optimization of transit investments, and standards to minimize land consumption and servicing costs;

w) improving accessibility for persons with disabilities and older persons by addressing land use barriers which restrict their full participation in society;

x) ensuring that necessary infrastructure and public service facilities are or will be available to meet current and projected needs;

y) promoting development and land use patterns that conserve biodiversity; and

z) preparing for the regional and local impacts of a changing climate.

1.1.3 Settlement Areas

Settlement areas are urban areas and rural settlement areas, and include cities, towns, villages and hamlets. Ontario’s settlement areas vary significantly in terms of size, density, population, economic activity, diversity and intensity of land uses, service levels, and types of infrastructure available.

The vitality and regeneration of settlement areas is critical to the long-term economic prosperity of our communities. Development pressures and land use change will vary across Ontario. It is in the interest of all communities to use land and resources wisely, to promote efficient development patterns, protect resources, promote green spaces, ensure effective use of infrastructure and public service facilities and minimize unnecessary public expenditures

1.1.3.2 Land use patterns within settlement areas shall be based on densities and a mix of land uses which:

a) efficiently use land and resources;

b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion;

c) minimize negative impacts to air quality and climate change, and promote energy efficiency;

d) prepare for the impacts of a changing climate;

e) support active transportation;

f) are transit-supportive, where transit is planned, exists or may be developed; and

g) are freight-supportive.

18Mr. Kloibhofer’s opinion was that the application is consistent with the PPS, specifically with the policies that emphasize growth and intensification in a settlement area.

Growth Plan for the Greater Golden Horseshoe (2019) (“GGH”)

19The minor variance application must demonstrate conformity with the GGH. Mr. Kloibhofer took the Tribunal through the following policies of the GGH:

2.2.1 Managing Growth

4. Applying the policies of this Plan will support the achievement of complete communities that:

a) feature a diverse mix of land uses, including residential and employment uses, and convenient access to local stores, services, and public service facilities;

b) improve social equity and overall quality of life, including human health, for people of all ages, abilities, and incomes;

c) provide a diverse range and mix of housing options, including additional residential units and affordable housing, to accommodate people at all stages of life, and to accommodate the needs of all household sizes and incomes;

d) expand convenient access to:

i. a range of transportation options, including options for the safe, comfortable and convenient use of active transportation;

ii. public service facilities, co-located and integrated in community hubs;

iii. an appropriate supply of safe, publicly-accessible open spaces, parks, trails, and other recreational facilities; and

iv. healthy, local, and affordable food options, including through urban agriculture;

e) provide for a more compact built form and a vibrant public realm, including public open spaces;

f) mitigate and adapt to the impacts of a changing climate, improve resilience and reduce greenhouse gas emissions, and contribute to environmental sustainability; and;

g) integrate green infrastructure and appropriate low impact development.

2.2.5 Employment

15. The retail sector will be supported by promoting compact built form and intensification of retail and service uses and areas and encouraging the integration of those uses with other land uses to support the achievement of complete communities.

2.2.7. Designated Greenfield Areas

1. Development taking place in designated greenfield areas will be planned, designated, zoned and designed in a manner that:

a) supports the achievement of complete communities;

b) supports active transportation; and

c) encourages the integration and sustained viability of transit services

4.2.10 Climate Change

1. Upper- and single-tier municipalities will develop policies in their official plans to identify actions that will reduce greenhouse gas emissions and address climate change adaptation goals, aligned with other provincial plans and policies for environmental protection, that will include:

a) supporting the achievement of complete communities as well as the minimum intensification and density targets in this Plan;

b) reducing dependence on the automobile and supporting existing and planned transit and active transportation;

c) assessing infrastructure risks and vulnerabilities and identifying actions and investments to address these challenges;

d) undertaking stormwater management planning in a manner that assesses the impacts of extreme weather events and incorporates appropriate green infrastructure and low impact development;

e) recognizing the importance of watershed planning for the protection of the quality and quantity of water and the identification and protection of hydrologic features and areas;

f) protecting the Natural Heritage System for the Growth Plan and water resource systems;

g) promoting local food, food security, and soil health, and protecting the agricultural land base;

h) providing direction that supports a culture of conservation in accordance with the policies in subsection 4.2.9; and

i) any additional policies to reduce greenhouse gas emissions and build resilience, as appropriate, provided they do not conflict with this Plan.

2. In planning to reduce greenhouse gas emissions and address the impacts of a changing climate, municipalities are encouraged to:

a) develop strategies to reduce greenhouse gas emissions and improve resilience through the identification of vulnerabilities to climate change, land use planning, planning for infrastructure, including transit and energy, green infrastructure, and low impact development, and the conservation objectives in policy 4.2.9.1;

b) develop greenhouse gas inventories for transportation, buildings, waste management and municipal operations; and

c) establish municipal interim and long-term greenhouse gas emission reduction targets that support provincial targets and reflect consideration of the goal of low-carbon communities and monitor and report on progress made towards the achievement of these targets.

20It was Mr. Kloibhofer’s opinion that the proposal has demonstrated conformity to the GGH.

Region of Halton Official Plan (2020) (“HOP”)

21The Subject Lands are designated as an “Urban Area” and “Higher Order Transit Corridor”. Part III, S. 72.1 identifies compact and transit supportive uses and efficient use of space. As such, the inclusion of a dental office supports the high-density mixed use and is desirable to help the overall achievement of a complete community.

22The HOP does define a dental office as a human service, as such, the Region of Halton Plan is to deliver human services locally and within the “Urban Area” and within close proximity to residential uses.

23It was Mr. Kloibhofer’s opinion that the proposal conforms to the Region of Halton Official Plan.

City of Burlington Official Plan (2019)

24As stated by City Staff in their report, a dental office use is permitted in the Burlington Official Plan and is defined as a Service Commercial Use. Staff agreed that this use is permitted on the Subject Lands and maintains the general intent and purpose of the City of Burlington Official Plan.

25Mr. Kloibhofer agreed with City Staff that the permitted use maintains the general intent and purpose of the City of Burlington Official Plan.

City of Burlington Zoning By-law No. 2020

26Based on the range of uses under the RAL4-493 Zone, it is the intent of this zoning to permit a mix of high-density residential uses along with a mix of various commercial human services. The proposal demonstrates that a dental office performs the same type of services as a permitted as-of-right veterinary service. Both uses would provide a daily service to residents in the surrounding area. As such, Mr. Kloibhofer opined that the proposal maintains the general intent and purpose of the City of Burlington Zoning By-law No. 2020.

Minor in Nature

27Mr. Kloibhofer opined that the proposal is minor in nature as the dental office does serve a similar function as to what is already permitted. The proposal is not going to create a negative impact in the neighbourhood. The proposal would only have a positive impact as the service is needed in the surrounding neighbourhood. The proposal will not have an adverse impact on traffic, parking or pollution. As such, Mr. Kloibhofer opined that the variance is minor in nature.

Is the Proposal Desirable for the Appropriate Development of the Subject Lands?

28Mr. Kloibhofer opined that the dental office use is a similar use as to what is already permitted. The dental office use is a compatible and a complementary use to the surrounding neighbourhood and community. The proposal is a desirable use of the Subject Lands.

Professional Recommendation

29It was Mr. Kloibhofer’s professional opinion that the proposal meets all four tests of a minor variance under s. 45(1) of the Planning Act. The proposal will contribute to a complete community and provide a necessary service to the neighbourhood. The proposal represents good land use planning.

Analysis

30The Tribunal received comprehensive and uncontroverted expert opinion evidence from Mr. Kloibhofer. Based on this expert opinion evidence, the Tribunal finds that the variance requested is consistent with the PPS; conforms with the GGH and the HOP. The Application maintains the general intent and purpose of the City of Burlington Official Plan and the City of Burlington Zoning By-law No. 2020. Based on the evidence of Mr. Kloibhofer, the variance is minor in nature and is a desirable development of the Subject Property.

31The Tribunal has had regard for the decision of the COA and the materials it considered.

ORDER

32The Tribunal orders that the appeal is allowed and the variance to the City of Burlington By-law No. 2020, as amended, Exception 493 is authorized subject to the following conditions:

(1) That the ground floor dental office use be limited to a maximum gross floor area of 201 square metres.

(2) A zoning clearance certificate is applied for and received.

(3) Site Plan Approval is given to update the underground parking plan to indicate the parking space change from visitor to shared visitor/commercial parking spaces as necessary.

“s. deBoer”

S. deBOER

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.