Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 13, 2023
CASE NO(S).: OLT-22-002219 (Formerly PL210040)
PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1085 Clearview Limited Partnership
Appellant: 1246235 Ontario Inc.
Appellant: 1602211 Ontario Ltd.
Appellant: 2084 Lakeshore Holdings Ltd. Et Al; and others
Description: Proposed Official Plan Amendment for Burlington New Official Plan
Municipality: City of Burlington
OLT Case No.: OLT-22-002219
Legacy Case No.: PL210040
OLT Lead Case No.: OLT-22-002219
Legacy Lead Case No.: PL210040
OLT Case Name: 1085 Clearview Limited Partnership v. Halton (Reg. Mun.)
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Sofina Foods Inc.
Appellant: Wal-Mart Canada Corp.
Appellant: Reserve Properties Ltd.
Appellant: Vrancorp Group; and others
Description: Proposed Official Plan Amendment No. 119
Municipality: City of Burlington
OLT Case No.: OLT-22-002483
Legacy Case No.: PL200150
OLT Lead Case No.: OLT-22-002483
Legacy Lead Case No.: PL200150
OLT Case Name: Sofina Foods Inc. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Wal-Mart Canada Corp.
Appellant: Burlington Healthcare Centre Inc.
Appellant: Better Life Development
Appellant: Emshih Developments Inc.; and others
Description: By-law No. 2020.418
Municipality: City of Burlington
OLT Case No.: OLT-22-002484
Legacy Case No. PL200151
OLT Lead Case No.: OLT-22-002483
Legacy Lead Case No. PL200150
Heard: April 3, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Regional Municipality of Halton ("Region")
K. Yerxa
City of Burlington ("City")
A. Biggart, C. Kapelos
Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd. ("Penta")
S. Snider
Nelson Aggregate Co. and Ontario Stone, Sand & Gravel Association (OSSGA)
M. Kemerer
Appellants and Parties listed in REVISED Schedule 1 (attached)
MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN ON APRIL 3, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was convened for the appeals specific to the Phase 1A - Agriculture portion of the appeals filed to the new Official Plan ("OP") adopted by the City of Burlington ("City") on April 26, 2018 and modified and approved by the Regional Municipality of Halton ("Region") on November 30, 2020.
2Counsel to Penta informed the Tribunal, a settlement had been reached between Penta, the City and the Region on their issues (with the exception of Issue 6, to be considered in a subsequent phase of the hearing) pertaining to the Phase 1A-Agriculture portion of the appealed new OP. Mr. Snider submitted the Affidavit of Ms. Dana Anderson in support of the settlement for Tribunal consideration.
3Prior to hearing evidence in support of the Penta settlement, the Tribunal turned to Nelson Aggregates and OSSGA appeals pertaining to the Phase 1A-Agriculture. The City informed the Tribunal that ongoing settlement discussions are proactive and a possible resolution to the appeals of this Phase is close at hand. Having heard that progress towards a settlement may be imminent if discussions were allowed to continue, the Tribunal agreed to adjourn for three days to allow the Parties to work on a resolution. The City requested the issuance of a written hearing should a Settlement be reached. The Tribunal noted that if this matter were to result in a Settlement between the Parties, that upon receipt of the applicable documents outlining the planning merits of the Settlement, the Tribunal would be agreeable to provide a written decision forthwith.
4Having been notified by the City prior to the issuance of this Decision, the Parties have reached a Settlement which will be presented to City Council first week in May. The Tribunal granted the request for the release of the dates for the hearing of the merits and will await the submissions of the planning instruments for the consideration of the Tribunal for its written decision.
Tribunal Note
5As a housekeeping measure, the Tribunal informed the Parties that the Decision of March 28, 2023, contained Schedule 1 which identified the Parties and their respective Counsel as well as the appeals associated with each Appellant.
6Mr. Platt, the representative for United Burlington Retail Portfolio Inc., Appellant No. 2, informed the Tribunal that he and Samantha Lampert were listed in absentia at the CMC when in fact, Alex Lusty, the lawyer present for Appellant No. 3, was appearing on behalf of them. They requested that it be noted, Mr. Lusty was representing Appellant No 2 and 3.
7The Tribunal notes, for the recorded, Schedule 1, attached to the decision of January 31, 2023, should reflect Mr. Alex Lusty as the representative of Appellant No. 2 and 3.
8Further, the Tribunal directs that the City be charged with providing the Tribunal a revised Schedule 1 throughout the Phased hearings for the benefit and accuracy of the decision process.
Settlement of Penta Issues
9Ms. Anderson, a professional land use planner and a Fellow of the Canadian Institute of Planners (FCIP) and a Registered Professional Planner (RPP) with the Ontario Professional Planners Institute (OPPI) was affirmed and qualified without objection, to provide independent expert land use planning evidence. The Tribunal had the benefit of Ms. Anderson's sworn Affidavit which was entered as Exhibit 1 to this hearing.
10Ms. Anderson provided a summary of the Penta issues for the Phase 1A-Agriculture hearing and a response as to how they have been resolved and addressed through the Settlement Proposal (Exhibit 1-C). She noted that the resolution of Issue 6 relating to section 4.3.2(f) of the new OP will be determined in a subsequent phase of the hearing.
11Ms. Anderson opined that the Proposed Modifications have regard for matters of provincial interest as set out in s. 2 of the Act, specifically section 2(b) the protection of the agricultural resources of the Province, that agriculture and agriculture related activities are promoted and protected.
12The Proposed Modifications conform to the Growth Plan for the Greater Golden Horseshoe, 2020 ("GP") through a number of policies including Section 4.2.6 which addresses Agricultural Systems. These provide for the protection, enhancement and support of agricultural areas, agricultural uses and normal farm practices.
13The Proposed Modifications are consistent with the Provincial Policy Statement, 2020 ("PPS") as it provides several policies to recognize, promote and protect agricultural resources and ensure the wise use and management of those resources over the long term. The policies in Section 2.3 of the PPS 2020 specifically address Prime Agricultural Areas and provide for permitted uses and policies for such areas. Section 2.1 sets out policies for Natural Heritage Areas. The Proposed Modifications are consistent with the PPS 2020 as they incorporate the intended wording to promote and protect agricultural uses.
14The Proposed Modifications conform to the Region Official Plan "(ROP") as they ensure the Region's objectives and policies for agricultural uses are reflected. Section 92 addresses Agricultural Systems which includes Agricultural Areas within the Natural Heritage System but outside of the Key Natural Features. The ROP Sections 99 and 100 reflect the promotion and protection of a full range of agricultural operations, agricultural uses and normal farm practices.
15The Tribunal heard that through a review and discussion with the City and Region related to the new City of Burlington OP Policy 4.2.1 (e), together with the definition of buffers, provide for an Agricultural System which includes lands within the Natural Heritage System but outside of the Key Natural Features where agricultural uses are permitted subject to the policies of the New OP and is therefore in conformity with the ROP which contains similar policies and definitions.
16Ms. Anderson turned to the Natural Heritage System objectives in the new City of Burlington OP, Policy 4.2.1 (f) which utilized the words "recognize" and "support" in relation to agriculture as a primary activity within Prime Agricultural Areas. The Tribunal heard the Parties had agreed to revise this policy to ensure full consistency with the PPS 2020, with the use of the words "promote" and "protect".
17Consideration was also given to Section 9.2.2 of the new City of Burlington OP, which provides general policies including Policy 9.2.2 (c) that address agricultural operations within the City's Natural Heritage System. It was explained that this policy utilizes the words "promoted" and "supported" in relation to actual operations within the Natural Heritage System. After a review with the City and Region, to ensure full consistency with the PPS, revisions were recommended the use of the words "recognize" and "protect".
18The Proposed Modifications are in conformity with the ROP which contain similar policies and definitions.
FINDINGS AND DISPOSITION
19The Tribunal accepts the unchallenged planning evidence and opinions of Ms. Anderson in the disposition of the appeal of Penta to the Phase 1A-Agriculture (exception: Issue 6 as noted above) portion of the Penta appeals.
20The Tribunal finds that based upon the modifications contained in Exhibit 1-C, the revised new City of Burlington OP provides clarity and is consistent with the PPS, conforms to the Growth Plan, conforms to the Region of Halton Official Plan. As a result, this settlement satisfies the Tribunal that legislative and policy requirements have been met and are in the public interest and represents good planning.
ORDER
21The Tribunal orders that the appeal is allowed in part, and the new Official Plan of the City of Burlington hereby be modified, as agreed to by the City and the Region, attached as Exhibit 1-C and forming part of this Order.
22The Tribunal orders that with the exception of Issue 6 relating to section 4.3.2(f) to be determined in a subsequent phase of the hearing, the Penta Properties Inc., Paletta International Corporation and P&L Livestock Ltd. appeals brought forth for Phase 1A-Agriculture have been resolved.
"D. Chipman"
D. CHIPMAN
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.