Landform Development Group Inc. and 2413350 Ontario Inc. v. Burlington (City), 2023 CanLII 103199

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

November 02, 2023

CASE NO(S).:

OLT-21-001352

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Landform Development Group Inc. and 2413350 Ontario Inc

Subject:

Request to amend the Official Plan - Failure of the City of Burlington to adopt the requested amendment

Existing Designation:

Downtown Residential Medium and/or High-Density Precincts Downtown Urban Centre – Village Square Precinct

Proposed Designated:

Site Specific (To be determined)

Purpose:

To permit an 11-storey residential building consisting of 130 units, 167 vehicle parking spaces within four levels of underground parking and 339 square metres of common amenity space.

Property Address/Description:

401-417 Martha Street

Municipality:

City of Burlington

Approval Authority File No.:

505-01/21

OLT Case No.:

OLT-21-001352

OLT Lead Case No.:

OLT-21-001352

OLT Case Name:

Landform Development Group Inc. and 2413350 Ontario Inc. 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:

Landform Development Group Inc. and 2413350 Ontario Inc.

Subject:

Application to amend Zoning By-law No. 2020 - Refusal or neglect of the City of Burlington to make a

Existing Zoning:

Downtown Residential High Density with a Holding provision

Proposed Zoning:

Site Specific Downtown Residential High Density

Purpose:

To permit an 11-storey residential building consisting of 130 units, 167 vehicle parking spaces within four levels of underground parking and 339 square metres of common amenity space.

Property Address/Description:

401-417 Martha Street

Municipality:

City of Burlington

Municipality File No.:

520-01/21

OLT Case No.:

OLT-21-001357

OLT Lead Case No.:

OLT-21-001352

Heard:

May 8, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Landform Development Group Inc. and 2413350 Ontario Inc.

Denise Baker

City of Burlington

Blake Hurley

Region of Halton

Brittany Maione

Halton Region Conservation Authority

Konstantine Stavrakos

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1A merits hearing was scheduled to commence on May 8, 2023 for a period of five (5) days. However, prior to that date in May, 2023, the Parties advised the Tribunal that they had reached a settlement and requested that all hearing days be released except for May 9, 2023 which they proposed to be convened as a settlement hearing and the Tribunal agreed to do so.

2The appeals were brought under s. 22(7) and s. 34(11) of the Planning Act (“Act”) by Landform Development Group Inc. and 2413350 Ontario Inc. (“Appellants”) against the City of Burlington (“City”) for failure to make decisions within the statutory timeframes on applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBLA”) in relation to the property at 401-417 Martha Street.

3The OPA and ZBLA are required to give effect to the Appellants’ proposal to develop an 11-storey residential building comprised of 130 units with a proposed density of 407 units per hectare (“ha”), 117 parking spaces and four levels of underground parking.

4The Tribunal was presented the following materials for this settlement hearing:

• Joint Document Book Exhibit 1

• Visual Evidence Exhibit 2

• Affidavit of David Falletta Exhibit 3

EVIDENCE/ANALYSIS/CONCLUSIONS

5Counsel for the Appellant, with the consent of all Parties, called Mr. Falletta to provide evidence in support of the proposed settlement . Mr. Falletta was qualified by the Tribunal to provide expert opinion evidence on land use planning.

• Mr. Falletta reviewed the Visual Evidence Book and referred to many of the documents set out in the Joint Evidence Book. In his Affidavit and in his oral testimony, Mr. Falletta provided:

• Bousfields Inc. was retained in 2020 by Landform Development Group Inc and 2413350 Ontario Inc. (the “Applicant”) to provide land use planning services with respect to 401-417 Martha Street (the “Subject Site”) in the City of Burlington

• He prepared the materials in connection with the filing of the subject Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”), (collectively, the “Applications”) including the preparation of a Planning and Urban Design Rationale Report, dated September 2020.

• The Subject Site is located in the City of Burlington’s Downtown Core on the east side of Martha Street between New Street and Lakeshore Road. The Subject Site is generally square in shape with an overall area of approximately 3,153 square metres (0.32 hectares), has a frontage of 73.62 metres (241 feet) along Martha Street and a depth that ranges from 36.04 metres (118 feet) to 48.46 metres (157 feet).

• The purpose of the applications is to amend the Official Plan and Zoning By-law No. 2020 to permit an 11-storey residential building consisting of 130 units, 167 vehicle parking spaces within four levels of underground parking and 339 square metres of common amenity space.

• He had reviewed the proposal for conformity and consistency with the Provincial Policy Statement 2020 (“PPS”), the Growth Plan for the Greater Golden Horseshoe 2017 and 2019 (“Growth Plan”), the Halton Regional Plan 1995 and current consolidation of 2021; City of Burlington Official Plan (“City OP”), and Zoning By-law Nos. 2020 as the apply to the subject proposal;

• The Revised Proposal is consistent with the PPS by providing for a mixed-use intensification in a compact built form within the built-up urban settlement area, in proximity to transit and in a form that promotes active transportation at transit supportive densities. Further, the Revised Proposal will contribute to the range and mix of housing options and will help promote economic development and competitiveness for the community of Aldershot and the City, and is consistent with the PPS policies that speak to making efficient use of land and existing municipal infrastructure.

• The Revised Proposal conforms to the Growth Plan as it will introduce a compact urban form of development on the Subject Site in a transit-supportive manner within the urban built-up area. As well the Revised Proposal is located within the Downtown Area within the urban built-up area and an Urban Growth Area, it will help the City achieve its growth and intensification targets required under the Growth Plan and the ROP. The Revised Proposal will also contribute towards the provision of a range and mix of housing options for the neighbourhood and the City, by providing 111 new residential dwelling units.

• The Revised Proposal conforms to the intent of the OP, especially with regard to the efficient utilization of land, developing within the urban area of the City, providing new homes and transit supportive densities, and intensifying an underutilized site within an area intended for mixed uses.

• The Revised Proposal together with the implementing OPA and ZBA represents a desirable form of urbanization and intensification at an appropriate location that is planned and well-suited for the Subject Lands.

• The Settlement provided for the following main provisos:

Original Proposal

Proposal as Amended

Site Area

3,162 square metres

3,162 square metres

Total Proposed GFA

14,152 square metres

12,504 square metres

Density (FSI)

4.47

3.95

Density (uph)

407 units per hectare

380 units per hectare

Height

11 storeys

14 storeys

Residential Units

130

111

Indoor Amenity Space

163 square metres

221 square metres

Vehicular Parking

167 spaces

118 spaces

• He opined the OPA and ZBA’s contemplated under the Settlement are appropriate, reasonable and represent good planning, are consistent with the PPS, and conform to the Growth Plan and to the City’s OP.

6Upon review of Mr. Falletta’s Affidavit and his oral testimony, the Tribunal accepts his expert opinions and is satisfied that the draft OPA and ZBA’s under the Parties’ Settlement is consistent with the relevant provisions of the PPS; conforms with the Growth Plan; is in conformance with the City’s OP; and meets the requirements of sections 1, 2 and subsection 34(11) of the Act.

7The proposed OPA is appended as Attachment 1 hereto and the proposed ZBA’s are appended as Attachment 2 hereto.

ORDER

8THE TRIBUNAL ORDERS that:

1. The appeal of the proposed Official Plan Amendment is allowed in part, and the proposed Amendment to the City of Burlington Official Plan, a copy of which is provided as Attachment 1 hereto, is hereby approved

2. The appeal of the proposed Zoning By-law Amendment is allowed in part, and the proposed Zoning By-law Amendment to the City of Burlington Zoning By-law No. 2020, a copy of which is provided as Attachment 2 , is hereby approved

9In the event that there are any issues arising out of the Tribunal’s disposition or in connection with the satisfaction of the above conditions set out in Orders above, the Parties may request further assistance from the Tribunal.

“Carmine Tucci”

CARMINE TUCCI

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.

ATTACHMENT 1

AMENDMENT NO.138 TO THE OFFICIAL PLAN

OF THE BURLINGTON PLANNING AREA

CONSTITUTIONAL STATEMENT

The details of the Amendment, as contained in Part B of this text, constitute Amendment No. 138 to the Official Plan of the Burlington Planning Area, as amended.

PART A – PREAMBLE

1. PURPOSE OF THE AMENDMENT

The purpose of this Amendment is to amend the existing Downtown Residential - Medium and/or High Density Precincts designation for 401-417 Martha Street to facilitate the development of a 16-storey (including mezzanine and a mechanical penthouse/rooftop amenity) residential apartment building with a maximum density of up to 605 units per hectare.

2. SITE AND LOCATION

The subject site is an assembly of 6 separate parcels of land on the east side of Martha Street between New Street and Lakeshore Road. The site is irregular in shape with an overall area of approximately 3,162 square metres (0.3162 hectares) and has frontage of 73.62 metres along Martha Street and a depth ranging from 36.04 metres to 48.46 metres.

3. BASIS FOR THE AMENDMENT

a) The application proposes intensification that is consistent with Provincial Policy Statement (PPS) and conforms to the Growth Plan for the Greater Golden Horseshoe (Growth Plan);

b) The proposal conforms to the Halton Region Official Plan and the Official Plan for the Burlington Planning Area, upon finalization of this amendment;

c) The proposal can be adequately serviced;

d) The proposal is well-served by existing community infrastructure including public transit, parks, schools and recreation facilities; and,

h) The applicant submitted technical studies that provide adequate and appropriate information to support the development.

PART B – THE AMENDMENT

1. DETAILS OF THE AMENDMENT

Map Change:

None is proposed.

Text Change:

The text of the Official Plan of the Burlington Planning Area, as amended, is hereby amended as follows:

By adding a new policy in Part III, Section 5.5 Downtown Mixed Use Centre, Subsection 5.5.5, Downtown Residential - Medium and/or High Density Precincts, which reads as follows:

401-417 Martha Street

g) Notwithstanding Part III, Subsection 5.5.5 b) of this plan, within the Downtown Residential - Medium and/or High Density Precincts designation located at 401-417 Martha Street, one 16-storey (including mezzanine and a mechanical penthouse/rooftop amenity) apartment building having a maximum density of 605 units per hectare shall be permitted.

2. INTERPRETATION

This Official Plan Amendment shall be interpreted in accordance with the “Interpretation” policies of Part VI, Implementation, Section 3.0, Interpretation, of the Official Plan of the Burlington Planning Area.

3. IMPLEMENTATION

This Official Plan Amendment will be implemented in accordance with the appropriate “Implementation” policies of Part VI of the Official Plan of the Burlington Planning Area.

ATTACHMENT 2

THE CORPORATION OF THE CITY OF BURLINGTON

BY-LAW NUMBER 2020.XXX

A By-law to amend By-law 2020, as amended; for 401-417 Martha Street,

File No.:505-01/21 and 520-01/21

WHEREAS Section 34(1) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, states that Zoning By-laws may be passed by the councils of local municipalities; and

WHEREAS the Ontario Land Tribunal issued a decision on XXX, 2023, to amend the City’s existing Zoning By-law 2020, as amended, to permit a 16-storey (including mezzanine and a mechanical penthouse/rooftop amenity) residential building with 119 units and a density of 605 units per hectare for lands located at 401-417 Street, Burlington.

THE ONTARIO LAND TRIBUNDAL AMENDS ZONING BY-LAW 2020 AS FOLLOWS:

1. Zoning Map Number 9A-E to By-law 2020, as amended, is hereby amended as shown on Schedule “A” attached to this By-law.

2. The lands designated as “A” on Schedule “A” attached hereto are hereby rezoned from “H-DRH" to "DRH-524".

3. The lands designated as “B” on Schedule “A” attached hereto are hereby rezoned from “H-DRH" to “O2”.

4. Part 14 of By-law 2020, as amended, Exceptions to Zone Designations, is amended by adding Exception 524 as follows:

Exception 524

Zone DRH

Map 9A-E

Amendment 2020.XXX

Enacted XXXXXXX

1. Regulations for an Apartment Building a) For the purposes of the following regulations, the Martha Street lot line is deemed to be the front lot line.

b) Front Yard: i) Floors 1 to 5: ii) Floors 6 to 7: iii) Floors 8 to 15: iv) Floor 16 / Mechanical Penthouse / Rooftop Amenity: v) Balconies and terraces: vi) Below-grade parking structure:

3.0 m 4.5 m 7.5 m 10.0 m 2.0 m 0.0 m

c) Yard Abutting a Creek Block: i) Floors 1 and 2: ii) Floors 3 to 15: iii) Floor 16 / Mechanical Penthouse / Rooftop Amenity: iv) Balconies and terraces: v) Below grade parking structure:

6.0 m 4.5 m 10.0 m 3.0 m 0.0 m

d) At-grade buildings and structures, above-ground and in-ground swimming pools, patios, decks, unitary equipment, paved walkways and at-grade parking areas are not permitted within the required 6 m yard abutting a Creek Block. The 6 m yard is to remain unobstructed for the purposes of access.

e) South Side Yard: i) Floors 1 to 15: ii) Floor 16 / Mechanical Penthouse / Rooftop Amenity: iii) Balconies and terraces: iv) Below-grade parking structure:

3.0 m 10.0 m 1.5 m 0.0 m

f) Landscape Area: v) Abutting a street having a deemed width up to 26 m: vi) Abutting a creek block:

3 m, patio to residential dwelling units and walkway to main entrance and into side yard may encroach. 0 m

g) Maximum Density:

605 units per hectare

h) Maximum Height:

16 storeys and 52 m

i) Amenity Area:

18 m² per unit

j) Parking for Apartment Dwelling Units: i) Combined occupant and visitor parking rate:

1.06 space per unit

Except as amended herein, all other provisions of this By-law, as amended, shall apply.