Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 23, 2023
CASE NO(S).: OLT-22-004680
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: FGL Kerns Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the development of a four-storey retirement home with ground floor for commercial use
Reference Number: 520-02/21
Property Address: 1600 Kerns Road
Municipality/UT: Burlington/Halton
OLT Case No.: OLT-22-004680
OLT Lead Case No.: OLT-22-004680
OLT Case Name: FGL Kerns Inc. v. Burlington (City)
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| FGL Kerns Inc. ("Applicant/Appellant") | D. Baker, A. Clutterbuck (absent) |
| City of Burlington ("City") | B. Hurley |
| Regional Municipality of Halton ("Region") | B. Maione |
| Conservation Halton ("CH") | K. Stavrakos |
| Kirstin Silvera and Joanna Wice | Self-represented* |
MEMBORANDUM OF ORAL DECISION DELIVERED BY S. TOUSAW ON FEBRUARY 21, 2023 AND ORDER OF THE TRIBUNAL
Purpose
1This first Case Management Conference ("CMC") was convened for an appeal by the Applicant to the absence of a decision by the City on a Zoning By-law Amendment ("ZBA") affecting 1600 Kerns Road, Burlington ("site").
2The Applicant proposes a four-storey building with commercial uses at grade and a retirement home of 118 units above.
Parties
3The statutory Parties are the Applicant/Appellant and the City.
4The Tribunal granted Party status to the Region on its formal request related to natural heritage and site contamination issues. To address the Applicant’s concerns, the Tribunal directed the Parties to avoid duplication in the Issues List ("IL") and to coordinate the delivery of evidence at the Hearing on the merits.
5The Tribunal granted Party status to Conservation Halton ("CH") on its formal request related to natural hazards, erosion and setbacks, with the same direction to avoid duplication as noted above.
6The Tribunal granted Party status to each of Kirstin Silvera and Joanna Wice, being neighbours abutting the site expressing various issues of compatibility, and who plan to jointly retain a Planner to provide evidence at the hearing.
7Doug Stewart sought Party status as a neighbour across Kerns Road from the site, noting that several neighbours share his numerous concerns. The Tribunal deferred consideration of Party status for Mr. Stewart given the potential substantial overlap of his issues with those of the City, Region and CH, and Mr. Stewart’s need for more time to consider the retention of experts. To the objection raised by the Applicant, the Tribunal established the timelines set out below to enable consideration of Party status at the next CMC.
Participants
8Participant status was granted to Condominium Corporation HCC32, represented by its President, Cathy Lovett, for the townhouse development abutting to the southeast of the site. The Procedural Order ("PO"), when finalized, will establish a date by which this Participant may file its written statement.
Mediation
9The Parties are not prepared for mediation at this stage but are not opposed to mediation should it be considered appropriate through their discussions to reduce or refine the IL.
Next Steps
10To proceed with this appeal in a fair and efficient manner, the Tribunal directed as follows.
11The Parties, as well as Mr. Stewart, will exchange and refine their IL, and identify witnesses to be called at the Hearing on the merits, by Friday, March 24, 2023.
12The Applicant, in consultation with the other Parties and Mr. Stewart, will file a draft PO with IL by Thursday, April 20, 2023. Should the Applicant choose to proceed with a Motion to dismiss certain Parties’ issues, then the sought final PO should be filed with the Motion.
13The second CMC will be held by video conference at 10 a.m. on Tuesday, April 25, 2023 to consider Mr. Stewart’s Party status request, finalize the PO, and address any other procedural matters. No further Notice will be given.
14The Hearing on the merits will be held by video conference at 10 a.m. on Monday, October 2, 2023 for nine days (the Tribunal is not sitting October 9, 2023). No further Notice will be given.
15The Hearings are scheduled to proceed by video as follows:
CMC – April 25 2023 at 10 a.m. GoTo Meeting: https://meet.goto.com/278736685 Access code: 278-736-685 Audio-only telephone line: +1 (647) 497-9391 or Toll-Free 1-888-455-1389 Audio-only access code: 278-736-685
Merits Hearing – October 2, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/344779885 Access code: 344-779-885 Audio-only line: +1 (647) 497-9391 or toll-free 1-888-455-1389 Audio-only access code: 344-779-885
16Parties 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.
17Parties 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.
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.
19Individuals 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
20The Tribunal Orders its directions and findings as set out above.
21This Member is not seized but may be contacted through the Case Coordinator should issues arise.
"S. Tousaw"
S. tousaw
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.