Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
February 06, 2023
CASE NO(S).:
OLT-22-004445
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Infinity Development Group
Subject:
Official Plan Amendment
Description:
To amend the Official Plan and Zoning By-law in order to permit an 11-storey apartment building plus mechanical with penthouse
Reference Number:
505-03/22
Property Address:
1396 Guelph Line
Municipality/UT:
Burlington/Halton
OLT Case No:
OLT-22-004445
OLT Lead Case No:
OLT-22-004445
OLT Case Name:
Infinity Development Group v. Burlington (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Zoning By-law Amendment
Description:
To amend the Official Plan and Zoning By-law in order to permit an 11-storey apartment building plus mechanical with penthouse
Reference Number:
520-04/22
Property Address:
1396 Guelph Line
Municipality/UT:
Burlington/Halton
OLT Case No:
OLT-22-004446
OLT Lead Case No:
OLT-22-004445
Heard:
January 20, 2023 by video hearing
APPEARANCES:
Parties
Counsel
City of Burlington (“City”)
B. Hurley
Region of Halton (“Region”)
B. Maione
Infinity Development Group (“Infinity”)
D. Baker
A. Clutterbuck
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON JANUARY 20, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The first Case Management Conference (“CMC”) in this matter was held by videoconference hearing on January 20, 2023.
2This proceeding relates to the appeal by Infinity under section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, (“Act”) arising from the City’s failure to make a decision concerning Infinity’s application to amend the City’s Official Plan and Infinity’s related appeal under section 34(11) of the Act seeking to amend the City’s Zoning By-law in order to permit an 11-storey apartment building plus mechanical with penthouse on the property municipally known as 1396 Guelph Line in the City (“Subject Property”), which is part of the Region.
3The purpose of the CMC was to (a) consider any requests for Party and/or Participant status in this proceeding; (b) discuss whether a Procedural Order (“PO”) to govern these appeals could be finalized; and (c) whether it was appropriate to schedule a hearing before the Ontario Land Tribunal (“OLT” or “Tribunal”) on the merits of the appeals.
4The Region sought Party status, being the upper-tier municipality in which the City is located. There were no objections to the Region’s request and the Tribunal agreed that it was appropriate to grant the request.
5There were no other requests for either Party or Participant status.
6Counsel for Infinity, the City and the Region had discussed and agreed upon the form and content of a draft PO prior to the CMC and provided this draft PO for consideration of the Tribunal. They also jointly requested that a hearing for a period of 10 days be scheduled by the OLT. The Parties were reminded to consider the merits of mediation during their discussions and exchanges in preparation for the hearing.
7The Tribunal shall schedule a hearing to commence on Monday, October 30, 2023 ending Friday, November 10, 2023.
8Parties and participants 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/765631861
Access code: 765-631-861
9Parties 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
10Persons 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: +1 (647) 497-9391 or Toll Free 1-888-455-1389. The access code is 765-631-861.
11Individuals 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.
ORDER
12The Tribunal orders that the Procedural Order now appended as Attachment 1 to this Decision shall govern this proceeding.
“William R. Middleton”
WILLIAM R. MIDDLETON
VICE-CHAIR
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
ISSUE DATE: February 06, 2023 CASE NO(S).: OLT-22-004445 & OLT-22-004446
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant(s)/Appellant: Infinity Development Group
Subject: Official Plan Amendment
Description: To amend the Official Plan and Zoning By-law in order to permit a 11-storey apartment building plus mechanical with penthouse
Reference Number: 505-03/22
Property Address: 1396 Guelph Line
Municipality/UT: Burlington/Halton
OLT Case No.: OLT-22-004445
OLT Lead Case No.: OLT-22-004445
OLT Case Name: Infinity Development Group v. Burlington (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Zoning By-law Amendment
Description: To amend the Official Plan and Zoning By-law in order to permit a 11-storey apartment building plus mechanical with penthouse
Reference Number: 520-04/22
Property Address: 1396 Guelph Line
Municipality/UT: Burlington/Halton
OLT Case No: OLT-22-004446
OLT Lead Case No: OLT-22-004445
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 Monday, October 30, 2023 at 10:00am. The Hearing will run until Friday, November 10, 2023, inclusive.
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 procedural order deadlines are generally found in Attachment 1 to this Order.
The parties and participants identified at the case management conference are set out in Attachment 2.
The issues are set out in the Issues List attached as Attachment 3. 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 4 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 and the order in which they will be called. This list must be delivered on or before August 3, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before August 18, 2023 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 August 25, 2023.
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 September 8, 2023, 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 22 below.
On or before September 8, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 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 September 22, 2023, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before October 20, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence September 29, 2023, in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 20, 2023.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 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 October 20, 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
SUMMARY OF KEY DATES
Date
Hearing Event
August 3, 2023
Exchange of List of Witnesses
August 18, 2023
Expert Witness Meeting
August 25, 2023
Filing of Statement(s) of Agreed Facts and Issues
September 8, 2023
Exchange of Witness Statements
September 29, 2023
Exchange of Reply Witness Statements
September 8, 2023
Delivery of Participant Statements
October 20, 2023
Exchange of Visual Evidence
September 22, 2023
Confirmation to Tribunal if all reserved hearing dates are still required
October 20, 2023
Filing of Joint Document Book
October 20, 2023
Filing of Hearing Plan
October 30, 2023
Hearing Commences
ATTACHMENT 2
PARTIES
PARTIES
Infinity Development Group
WeirFoulds LLP
1525 Cornwall Rd, Suite 10
Oakville, ON Canada
L6J 0B2
Denise Baker
905-829-5090
Alyssa Clutterbuck
647-715-3545
City of Burlington
City of Burlington
426 Brant St
Burlington, ON Canada
L7R 3Z6
Lauren Pinder
Blake Hurley
Region of Halton
Region of Halton
1151 Bronte Road
Oakville, Ontario
L6M 3L1
Brittany Maione
ATTACHMENT 3
ISSUES LIST
City of Burlington
Do the applicant’s Official Plan Amendment and Zoning By-law Amendment applications (the “Planning Applications”) have sufficient regard for the matters of Provincial interest as outlined in s. 2 of The Planning Act, including subsections (f), (h), (h.1), (j), (n), (o), (p), (q), and (r)?
Are the Planning Applications consistent with the Provincial Policy Statement, 2020 (PPS) given the location and context of the subject lands, and the level of intensification proposed, and with specific consideration for the following PPS sections?
a) 1.1.1 c, e, f, g
b) 1.1.3.2 e, f
c) 1.1.3.4
d) 1.2.1 d, f,
e) 1.2.6 – land use compatibility
f) 1.4.3 housing
g) 1.6.7 transportation
h) 1.6.8 transportation and infrastructure corridors
i) 1.7 long-term economic prosperity
j) 1.8 – maximize vegetation
k) 3.2 human-made hazards
l) 4.6 Implementation and interpretation
m) 6.0 definitions referred to in the policies above
- Do the Planning Applications conform 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, with specific consideration for the following policies?
a) 1.2.1 guiding principles
b) 2.2.1 managing growth
c) 2.2.2(3)
d) 2.2.6.3 housing
e) 3.2.2, 3.2.3, 3.2.4 – transportation
f) 3.2.5 – infrastructure corridors
g) 4.2.10.1 – sustainability
h) 5.2.5.6 design policies and guidelines
i) 5.2.7 schedules and appendices
j) 7 definitions referenced in the policies cited above
Do the Planning Applications conform to the Halton Region Official Plan with respect to growth management, land use compatibility, noise impacts, air quality, site contamination, municipal services, transportation, waste management?
Do the proposed Official Plan Amendment and Zoning By-law Amendment have appropriate regard for Regional Official Plan Amendment 49, as approved by the Minister of Municipal Affairs and Housing on November 4, 2022?
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:
a) Part I – 3.0 (a, b, c, h) guiding principles
b) Part II – 2.7 sustainable design and compatibility, 2.8 contaminated and potentially contaminated sites, 2.11 stormwater management, 3.0 (3.2, 3.3, 3.4, 3.5, 3.6, 3.9) transportation and travel demand management, 5.0 utilities, 6.0 (6.1, 6.2, 6.3, 6.4, 6.5, 6.6) design.
c) Part III - 2.2.1, 2.2.2, 2.3, 2.4, 2.5.1, 2.5.2 Land use policies – urban area
d) Part VII Schedules and Tables
e) Part VIII – Definitions (definitions included in the aforementioned policies)
- Do the proposed Official Plan Amendment and Zoning By-law Amendment have appropriate regard for the City’s New Official Plan, as approved by Halton Region on November 30, 2020 and currently under appeal, including:
a) Chapter 2 – 2.2.2, 2.2.3, 2.2.4, 2.3.7, 2.4;
b) Chapter 3 – 3.1 housing;
c) Chapter 4 – 4.1 climate change and air quality, 4.3 urban forestry, 4.6 land use compatibility, 4.7 contaminated sites;
d) Chapter 6 – 6.1 general, 6.2 transportation, 6.3 utilities;
e) Chapter 7 – 7.1 general, 7.2 public realm, 7.3 urban design and built form, 7.4 sustainable design;
f) Chapter 8 – 8.6;
g) Chapter 12 – 12.1.1(3) i), 12.1.2(2 to 2.2),
h) Chapter 13 – Definitions (definitions included in the aforementioned policies)
i) Chapter 14 – Schedules
j) Appendices
Does the Proposed Development represent appropriate building heights, level of density and intensification for the subject lands?
Does the Proposed Development represent appropriate urban design in addressing matters including height, built form, massing, scale, siting, transitions, building articulation, setbacks, stepbacks, and spacing 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 (“The Mid-Rise Guidelines”, 2019), Pedestrian-level Wind Study Guidelines and Terms of Reference (2020), Shadow Study Guidelines and Terms of Reference (2020), Stormwater Management Design Guidelines (2020), Sustainable Building and Development Guidelines (2018), and Lighting Design Guidelines (2008)?
Does the proposed development provide for appropriate streetscapes along Guelph Line with an appropriate scale and built form and adequate setbacks?
Does the proposed development represent good land use planning?
Do the provided reports appropriately support the proposed development with respect to: grading and drainage; hydrogeological impacts; stormwater management; servicing; and site contamination?
Do the provided reports appropriately support the proposed development with respect to noise impacts and demonstrating conformity with the Ministry of the Environment, Conservation and Parks’s Environmental Noise Guidelines?
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 adequate landscape buffers and space for appropriate landscaping to address matters such as stormwater management, grading and drainage, and environmental impacts, and contribute to a high quality of urban design?
Does the siting of the proposed development appropriately preserve existing public and private trees, maximize vegetation and pervious surfaces, and integrate green infrastructure?
Does the design and location of the proposed site access allow for safe ingress and egress to and from the site, and prioritize the safety of pedestrians, cyclists, and transit users? Have alternative site access locations, such as access through neighbouring properties, been adequately assessed and considered?
Does the proposed development provide adequate parking supply? Is there sufficient justification for the proposed reduced parking rates?
Does the proposed development provide sufficient and appropriately sized vehicle parking (including accessible parking) and bicycle parking spaces?
Does the proposed development provide for adequate, functional circulation/movement and connectivity of vehicles and pedestrians throughout the site?
Does the proposed development provide adequate space and appropriate siting to allow for compliance with the City’s site plan design guidelines including with respect to matters such as:
a) site circulation;
b) functional movement of vehicles;
c) underground parking garage design;
d) appropriate ramp slopes;
e) visibility;
f) dimensions and location of parking spaces (including accessible parking);
g) drive aisle widths;
h) structural column spacing.
Region of Halton
Are the proposed Official Plan Amendment and Zoning By-law Amendment (the “Amendments”) consistent with the Provincial Policy Statement given the location and context of the subject lands, specifically considering policies: 1.1, 1.1.3 (excluding 1.1.3.8 & 1.1.3.9), 1.2.1, 1.2.4, 1.2.5, 1.6.7, 1.6.8, and 3.2.2.
Do the proposed amendment conform to the Growth Plan for the Greater Golden Horseshoe, specifically regarding, infrastructure to support growth, and implementation (policies: 2.2.1, 3.1, 3.2.2 and 5.2.3)?
Do the amendments conform with the Regional Official Plan, 2009 (as amended), including Urban Area and the Regional Urban Structure and Transportation?
Is the proposed increase in density on the subject lands appropriate, considering the Transportation issues and Transportation policies (Section 171, 172 and 173) in the Regional Official Plan, 2009 (as amended by ROPA 48)?
What regard, if any, is to be had to the policies of Regional Official Plan Amendment No. 49?
Is the proposed use and built form compatible with, or mitigated from land use impacts from adjacent major facilities and transportation facilities as required by Provincial and Regional planning policy and implementing Guidelines, including the Region of Halton’s Noise Abatement Guideline?.
Is the proposed restricted right-in/right-out access and recommendation for U-turns access appropriate?
Has there been sufficient information and detailed analysis prepared in the transportation report (by Crozier, March 2022) provided by the applicant to fully and accurately assess the development impacts and proposed mitigation measures as, among other things:
a. A Functional Operation and Safety Analysis Report by a Professional Transportation Safety Consultant regarding the proposed U-turns as a daily solution for access management for the proposed development, including the required weaving maneuvers for existing site traffic wanting to proceed northbound on Guelph Line, specifically during the a.m. and p.m. peak hours;
b. Accurate and detailed analysis of all of the locations potential U-turns will occur by site traffic along this section of Guelph Line, other than at the two intersections identified in the Study;
c. The impacts to all intersections, area businesses and other road users (pedestrians, cyclists, auto and transit) with the introduction of U-turns to the area road network as a daily solution for access management.
Has the potential for contamination on the subject lands been adequately assessed and appropriately addressed in accordance with Section 147(17) of the Region of Halton’s Official Plan, 2009 (as amended) and the Region’s Guideline (Protocol) for Reviewing Development Applications with Respect to Contaminated or Potentially Contaminated Sites. If approved, have the appropriate Holding provisions been put in place to address the Region’s Site Contamination policies (Section 147(17)?
Is the proposed built form being considered through the Amendments appropriately designed to permit Regional waste collection in accordance with Section 148 of the Region of Halton’s Official Plan, 2009 (as amended), and the Region’s Development Design Guidelines for Source Separation of Solid Waste? If approved, what are the appropriate zoning provisions that address and protect the safe and efficient collection of solid waste?
Does the proposed development represent good land use planning in that matters related to Regional Transportation, site contamination and waste management have been addressed?
ATTACHMENT 4
ORDER OF EVIDENCE
Infinity Development Group
City of Burlington
Region of Halton
Infinity Development Group