Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 03, 2023
CASE NO(S).:
OLT-22-003001
(Formerly PL171500)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Evergreen Community (Burlington) Ltd.
Subject:
Request to amend the Official Plan – Failure to adopt the requested amendment
Reference Number
505-06/15
Property Address:
5421, 5453, 5463 Dundas Street and 3232 Tremaine Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-003001
Legacy Case No:
PL171500
OLT Lead Case No.:
OLT-22-003001
Legacy Lead Case No:
PL171500
OLT Case Name:
Evergreen Community Ltd v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Evergreen Community (Burlington) Ltd.
Subject:
Application to amend the Zoning By-law – Refusal or neglect to make a decision
Reference Number:
520-09/15
Property Address:
5421, 5453, 5463 Dundas Street and 3232 Tremaine Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-003004
Legacy Case No:
PL171501
OLT Lead Case No.:
OLT-22-003001
Legacy Lead Case No:
PL171500
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
Evergreen Community (Burlington) Ltd.
Subject:
Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Reference Number:
510-03/15
Property Address:
5421, 5453, 5463 Dundas Street and 3232 Tremaine Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-003006
Legacy Case No:
PL171502
OLT Lead Case No.:
OLT-22-003001
Legacy Lead Case No:
PL171500
Heard:
October 18, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Evergreen Community (Burlington) Ltd.
Dennis Wood
City of Burlington
Andrea Peebles
Town of Oakville
Jennifer Huctwith
Region of Halton
Kelly G. Yerxa
Conservation Halton
Konstantine Stavrakos
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON OCTOBER 18, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1This was the third Case Management Conference (“Third CMC”) before the Tribunal with respect to appeals under sections 34(11) and 51(34) of the Planning Act (“Act”) by Evergreen Community (Burlington) Inc. (“Applicant”) resulting from the failure of the City of Burlington (“City”) to make a decision within the statutory timeframe on an application for a Zoning By-Law Amendment (“ZBA”) and a Draft Plan of Subdivision (“DPOS”), pertaining to lands municipally known as 5421, 5453, 5463 Dundas Street and 3232 Tremaine Road in the City (“Subject Property”). The appeals were filed with the Ontario Municipal Board, predecessor to this Tribunal, in December 2017.
2Two CMCs, called Pre-hearing Conferences at the time, have taken place on this matter on June 11, 2019 (“First CMC”) and January 10, 2020 (“Second CMC”). At the First CMC, it was confirmed that notice had been properly served, and no further notice was required. Additionally, the following were granted Party status at the First CMC: Town of Oakville, Region of Halton, Conservation Halton, and Paletta International Corp. (“Paletta”).
3The Applicant had also submitted an appeal pursuant to section 22(7) of the Act for an Official Plan Amendment (“OPA Appeal”). At the First CMC, it was noted that an integrally related, area wide Secondary Plan (“OPA 107”) was adopted by the City in May 2019 and, still being within the appeal period at that time, could potentially be appealed. At the Second CMC, it was confirmed that OPA 107 had been appealed by Paletta and that the Applicant would seek Party status in that matter. As a result, as confirmed in the Decision dated February 21, 2020, the Applicant withdrew its private OPA Appeal in light of the adoption of OPA 107. Moreover, at the Second CMC, the Applicant requested that the Tribunal adjourn its ZBA and DPOS Appeals sine die until such time as the appeal of OPA 107 has been determined. This request was granted.
4As a result, the file was put in “inactive” status by the Tribunal.
5On March 16, 2022, the Applicant’s Counsel provided a status updated to the Tribunal, as follows:
As background to this request, I note that the City of Burlington has adopted OPA 107 which is in effect at this time. Therefore, the private appeal seeking an official plan amendment made by Evergreen was withdrawn in 2021.
Following the resolution of the official plan matter, representatives of our client have been working with municipal staff to identify a zoning by-law and draft plan of subdivision to implement OPA 107. This process is sufficiently advanced that Mr. Hurley (City of Burlington) and I agree that it is timely to engage the Tribunal to obtain a hearing for the outstanding appeals.
6On June 18, 2023, the Applicant’s Counsel wrote to the Tribunal, requesting that the file be removed from “inactive” status, stating:
I am pleased to advise that the City and my client are satisfied that matters have progressed to the point where it is appropriate to request of the OLT that a CMC be scheduled to address the timing of a hearing, and the related procedural requirements, in regard to the outstanding zoning and draft plan of subdivision appeals.
7As such, the Third CMC was scheduled and took place on October 18, 2023.
8On October 18, 2023, Paletta advised the Tribunal’s Case Coordinator that it withdrew its status as a Party in this matter. Paletta did not participate at the Third CMC.
PROCEDURAL ORDER AND ISSUES LIST
9No Procedural Order (“PO”) or Issues List (“IL”) was submitted prior to the Third CMC.
10At the Third CMC, the Applicant advised that the Applicant and the City are hopeful that a final resolution can be reached between them by way of settlement agreement. A City Council meeting is scheduled for November 2, 2023, wherein the City’s Counsel can obtain instructions on this matter, after which, the Parties will be able to either finalize their issues or settle the dispute. As such, the Applicant and the City requested that a fourth CMC be scheduled, by which time there will either be a settlement agreement amongst the Parties or the issues that remained in dispute will be clear.
11The other Parties agreed with this course of action, confirming that their issues were limited and could likely be resolved by way of the Conditions of Approval that remained to be identified.
12The Tribunal agreed to this request and a fourth CMC was scheduled, with the particulars below. If the Parties are able to reach a settlement agreement, this agreement can be presented to the Tribunal for consideration, either orally on the scheduled date or in written form. If the Parties are unable to reach a settlement agreement, a draft PO and IL, and / or a status update, is to be provided to the Tribunal in advance of the fourth CMC, by Monday, December 4, 2023. The Applicant’s Counsel undertook to submit them to the Case Coordinator by that date.
MEDIATION AND SETTLEMENT
13The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties advised that they are currently engaged in these discussions. The Parties were directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.
FOURTH CMC
14As indicated above, the Parties requested that a fourth CMC be scheduled, which may either proceed as a CMC to address procedural issues or as a Hearing to consider a settlement among the Parties.
15A fourth CMC has now been scheduled to take place by Video Hearing on Monday, December 11, 2023 at 10 a.m.
16On that date, the Parties 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.
17The CMC is scheduled to proceed by video as follows:
GoTo Meeting: https://global.gotomeeting.com/join/638422541
Access Code: 638-422-541
18Persons 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) 497-9373 or (Toll Free) 1-888-299-1889. The Access Code is as indicated above.
19Parties 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
20Individuals 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
21THE TRIBUNAL ORDERS as follows:
a. A fourth Case Management Conference is scheduled to proceed, by Video Hearing, on Monday, December 11, 2023, at 10 a.m.
b. The Procedural Order and Issues List, if necessary, are to be provided to the Tribunal by Monday, December 4, 2023.
22The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee”
BITA M. RAJAEE
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.