Infinity (Plains Road) Corporation v. Burlington (City), 2023 CanLII 10078

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 10, 2023

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: January 23, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc.	D. Baker and C. deSereville
City of Burlington	B. Hurley
Region of Halton	B. Maione

MEMRORANDUM OFORAL DECISION DELIVERED S. BRAUN ON JANUARY 23, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION/BACKGROUND

1The following decision and Order arise out of the settlement of appeals pursuant to s. 22(7) and 34(11) of the Planning Act¹ (“Act”) by Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc. (“Appellant”) against the failure of the City of Burlington (“City”) to make decisions within the legislated timeframe on applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) in relation to 40-70 Plains Road East (“subject lands”/”site”).

2The subject site is an assembly of seven properties located on the south side of Plains Road East between Birchwood Avenue and Lasalle Park Road. It is currently developed with seven single detached two-storey dwellings. Surrounding land uses consist of a commercial and residential land uses to the west, existing commercial and planned residential to the north, commercial and residential uses to the east, and existing residential uses to the south.

3The Appellant’s initial proposal contemplated the redevelopment of the site with a 10-storey mid-rise mixed-use building containing 423 residential units. The revised proposal, which is the subject of the settlement agreement, and for which the Tribunal’s approval is now sought, contemplates a 12-storey mid-rise mixed-use building with a total gross floor area (“GFA”) of 21,970 square metres; 389 residential units; and 1,027 square metres of non-residential GFA. Notably, the revised proposal includes increases in amenity space and setbacks and, in particular, a large setback from the rear lot line which abuts the rear yards of a low-rise residential neighbourhood to the south. The entrance to the building is proposed to the north of the site in alignment with a signalized intersection at Cooke Boulevard and Plains Road East.

4In order to give effect to the proposal, an OPA is required to re-designate the site from Residential – Medium Density to Mixed Use Corridor – General and to create a site-specific policy to increase the maximum building height from 6 to 12 storeys and to increase the maximum density from a floor area ratio of 1.5:1 to 4.28. A ZBA is required to rezone the site from Medium Density Residential with Special Exception 346 (RM1-346) to Mixed Use Corridor General (MXG) with site-specific exceptions to allow for an increased building height and density as well as other site-specific performance standards.

5The Parties jointly requested that the Tribunal allow the appeals in part and approve the proposed OPA and ZBA. David Falletta, a Registered Professional Planner whom the Tribunal qualified to provide land use planning opinion evidence provided a sworn Affidavit and delivered a comprehensive contextual and planning rationale in support of the settlement. He opined that the proposed planning instruments and the development they will permit satisfy all requisite legislative tests, and are representative of good planning in the public interest.

PARTICIPANTS

Dianna Bullard and Ronald Moore

6At a Case Management Conference held on May 25, 2022, before a panel differently constituted, the Region of Halton (“Region”) was granted Party Status. Ronald Moore and Dianna Bullard, neighbours to the east of the site, were granted combined Participant Status. Their written statement was filed in accordance with the Procedural Order (“PO”) and was directly addressed by Mr. Falletta in his Affidavit.

Tom Muir

7Shortly after the May 25, 2022 CMC, Tom Muir, an interested area resident who resides outside of the 120 metre circulation area for applications under the Act, requested status as a Participant. The Parties advised the Tribunal’s Case Coordinator that they would not oppose this request, anticipating that Mr. Muir’s written statement would be submitted in accordance with the November 25, 2022 deadline specified in the PO, which it was not.

8Counsel for the Appellant expressed some concern, noting Mr. Muir’s statement was submitted on January 18, 2023, following the preparation and submission of the settlement materials and, as such, Mr. Falletta’s Affidavit did not directly address same. Counsel for the Appellant did, however, note that should the Tribunal choose to accept same, Mr. Falletta had read and was prepared to speak to the relevant portions of Mr. Muir’s statement during the course of his testimony. For his part, Mr. Muir explained that a series of communication errors led to his late request for Participant Status as well as the late submission of his written statement.

9Notwithstanding the late submission of Mr. Muir’s statement, the Tribunal accepted same in the interest of fairness. In the Tribunal’s view, so doing resulted in minimal prejudice to the Parties, given that Mr. Muir made his intentions known early on in the process and although his written statement was not filed in accordance with the PO, Mr. Falletta had, in fact, reviewed and was prepared to speak to the relevant planning concerns raised therein.

Troy Guyatt and Robyn Turcsanyi/Adair

10On January 12, 2023, the above-named individuals submitted requests for Participant Status. These individuals did not seek status at the CMC, nor did they appear at the hearing to speak to their requests. Counsel for the Parties took the position that the Tribunal should not grant the requests, given the late submissions and noted that, in any event, the concerns raised by Mr. Guyatt and Ms. Turcsanyi/Adair were repetitive of concerns captured in the Participant Statements already before the Tribunal for consideration. Having reviewed the requests of Mr. Guyatt and Ms. Turcsanyi/Adair and the Bullard/Moore and Muir Participant Statements, the Tribunal agreed with the submissions of Counsel and accordingly, denied their requests.

LEGISLATIVE FRAMEWORK

11In deciding on the matters before it, the Tribunal must be satisfied that the proposed development is representative of good planning in the public interest. The proposed planning instruments must be found to: have appropriate regard for the matters of Provincial interest in s. 2 of the Act; be consistent with the Provincial Policy Statement 2020 (“PPS”); conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”); conform to the Region of Halton Plan (“ROP”); and to the City of Burlington Official Plan (“COP”).

PLANNING EVIDENCE

12Mr. Falletta opined that the proposal will appropriately intensify, through compact and efficient development, an underutilized site which is well-served by municipal infrastructure, including transit. He characterized the site and surrounding area as “in transition”. Mid- and high-rise residential and mixed-use buildings have evolved, and continue to evolve, along Plains Road East, particularly on the south side. He noted that, because the site is approximately 700 m away from the Aldershot GO and VIA rail stations and is within a mixed-use corridor and a designated Major Transit Station Area (“MTSA”), it is intended to be developed at a higher density.

13Existing and planned built forms in the surrounding area include a variety of buildings ranging in height from 6 to 18 storeys. Notably, at the northeast corner of Plains Road East and Cooke Boulevard, the City has approved an 18-storey tower atop an 11-storey base and another 9-storey building and at the northwest corner of Plains Road East and Cooke Boulevard, another 9-storey mixed use building with at grade retail and commercial uses has also been approved.

14The residential neighbourhood to the immediate south of the site was characterized by Mr. Falletta as “low-rise suburban and automobile-oriented”. He explained the proposed development has been deliberately designed to have appropriate regard for applicable Urban Design Guidelines² and to achieve compatibility with the neighbourhood, drawing the Tribunal’s attention to the fact that a 45-degree angular plane has been applied to provide appropriate transition to the low-rise residential uses and an enlarged setback has been included at the rear lot line backing onto the rear yards of some of those residential dwellings. The enlarged setback allows for a “significant landscape buffer” with opportunities for additional vegetative plantings and the retention of some mature trees. In his view, all of the foregoing aids in achieving appropriate transition to those existing low-rise uses and mitigates potential privacy and overlook impacts.

15He also drew attention to some of the more notable design features of the building which, in his view, complement and reinforce the urban structure of existing and planned mid-rise and tall buildings along Plains Road East, while achieving compatibility with the low-rise neighbourhood to the south. For example, the 6-storey base along Plains Road East steps back to the upper storeys with a “central break” that splits the upper storeys, breaking up the massing to appear as two separate building forms.

16With respect to the specific legislative tests to be met, Mr. Falletta testified that the proposed instruments and the development they will permit have regard for the matters of Provincial interest in s. 2 of the Act; are consistent with the PPS; conform with the GP; the ROP and the COP. He opined that the proposal will result in the creation of an attractive development in south Aldershot which efficiently uses land and infrastructure and achieves a number of other provincial, regional and municipal goals, including but not limited to: the creation of new housing and a mix of housing; intensification within a mixed-use corridor, MTSA and Strategic Growth Area which will provide additional ridership for GO-transit, VIA Rail and local public transit and will contribute to achieving minimum intensification targets established by the GP.

17In addition to the foregoing, he noted that he assessed the proposal against the updated City of Burlington Official Plan, which was adopted in 2020 but is currently under appeal and therefore not in-force (“New COP”). In his view, the proposal conforms to the intent of the New COP, which promotes mixed-use commercial and residential intensification at transit supportive densities as a key component to the City’s growth strategy.

Participant Statements

18A number of the concerns raised by the Participants relate to aspects of the planning process, which are not issues before the Tribunal and as such are not addressed in this decision. With respect to the Participants’ objections to the proposed increases in height and density, Mr. Falletta reiterated that such increases are contextually appropriate, given the location of the subject site along a mixed-use corridor and along a road planned for residential intensification at high densities that is well-served by transit. He addressed concerns with respect to shadow impacts noting that shadow studies were completed which show there will be no impacts on the residential neighbourhood to the south and any impacts to the west and east of the site are adequately limited and do not exceed the criteria set out in the City’s terms of reference.

19Although the Participants expressed a preference for development in the form of detached dwellings and view the proposed building as disproportionate in size and out of character with the area, Mr. Falletta explained that, from a land use planning perspective, encouraging single detached dwellings along an intensification corridor within a strategic growth area and MTSA would be inappropriate, undesirable, inconsistent with the PPS and would not conform to the applicable planning framework. He reiterated that the area is experiencing transition, changing in character and evolving with the MTSA as evidenced by the existing and planned developments in the area.

20One of the Participant Statements asserted that proposal ignores the “protective intentions” of the in-force COP and Zoning in relation to the existing character of the area and that the City’s decision to support this development was “driven by Provincial growth policy”. In response, Mr. Falletta provided a comprehensive overview of the provincial planning hierarchy and also explained that the in-force COP and Zoning By-law (and even the New COP) are all out of date and therefore out of step with the 2051 planning horizons and intensification targets of the GP and the ROP.

21Finally, he pointed out that the Act, the COP and the New COP include a mechanism (application for OPA) to obtain increases in height and density, noting there have been several site-specific amendments for developments along Plains Road that have led to approved increases in maximum density and height. The OPA process is utilized on a site-specific basis to determine if additional height and density is warranted based on conformity with a policy framework related to compatibility and fit. In this instance, Mr. Falletta noted that a thorough planning analysis was conducted in accordance with the applicable planning framework and was supported by required studies and, from a land use planning perspective, the development is considered compatible with the surrounding neighbourhood.

ANALYSIS AND DISPOSITION

22Although this appeal arose out of the City’s failure to make a decision on the OPA and ZBA applications, the Tribunal notes that both City and the Region appeared in support of the proposed development and the City Staff Report also recommended approval of same. The Tribunal has reviewed and considered the concerns raised in the Participant Statements but is nevertheless satisfied, based upon the uncontradicted land use planning testimony and the detailed Affidavit of Mr. Falletta, that the proposed development is representative of good planning and is in the public interest and the proposed OPA and ZBA have appropriate regard to the matters of Provincial interest in s. 2 of the Act; are consistent with the PPS; and conform with the GP, ROP and COP.

23The Tribunal is satisfied that the proposed development represents an efficient use of land and an appropriate scale of intensification in an evolving area. It achieves objectives outlined in applicable urban design guidelines and demonstrates compatibility with the surrounding neighbourhood, including the low-rise residential dwellings to the south, and will also be compatible with other planned developments along Plains Road East. Moreover, the proposed development achieves important local, regional and provincial policy objectives, such as creating a mix of housing, and leveraging proximity to transit and existing municipal infrastructure in order to accommodate growth targets.

ORDER

24The Tribunal orders that the appeal by Infinity (Plains Road) Corporation and Infinity (Aldershot) Developments Inc. is allowed, in part and:

a) the Official Plan for the City of Burlington is amended as set out in Attachment 1 to this Order; and

b) City of Burlington Zoning By-law No. 2020 is amended as set out in Attachment 2 to this Order.

“S. Braun”

S. Braun

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.

ATTACHMENT 1

ATTACHMENT 2

Footnotes

1. 1R.S.O. 1990, c. P. 13, as amended.
2. 2Including the Plains Road Corridor Urban Design Guidelines; Design Guidelines for Mixed-Use and Residential Mid-Rise Buildings; and Sustainable Building and Development Guidelines.