Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 27, 2023

CASE NO(S).: OLT-22-004857

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

Applicant and Appellant: 409 Brant Street Ltd.

Subject: Minor Variance

Description: To permit a 201-unit apartment building with ground floor retail and office and retail on the second storey

Reference Number: 540-02-A-103-2021

Property Address: 409 Brant Street

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-22-004857

OLT Lead Case No.: OLT-22-004857

OLT Case Name: 409 Brant Street Ltd. v. Burlington (City)

Heard: April 4, 2023 by video hearing

APPEARANCES:

Parties

Counsel

409 Brant Street Ltd.

Rodney Gill David Bronskill (in absentia)

City of Burlington

Blake Hurley

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON APRIL 4, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Hearing was convened on April 4, 2023, to consider the appeal by 409 Brant Street Ltd. (“Applicant”) pursuant to s. 45(12) of the Planning Act for Minor Variances Approval (“Appeal”). The Appeal arises from the decision of the City of Burlington’s (“City”) Committee of Adjustment (“COA”), on November 1, 2022, to deny two out of fifteen minor variances requested by the Applicant.

2No issues were raised with service of the Notice of this Hearing event. In response to the Notice, the Tribunal did not receive any requests for Status, either Party or Participant. Of note, no member of the public appeared before the COA or submitted comments in relation to this matter.

3At the Hearing, the City’s counsel confirmed that the City supports the Application in full.

Requested VarianceS

4The Applicant is seeking fifteen (15) variances to the City’s Zoning By-law No. 569-2013 (“ZBL”), as detailed in Schedule A, which is attached to this Decision.

Subject property

5The lands subject to this appeal (“Subject Lands”) are approximately 0.2 hectares in size and located in Downtown Burlington. The Subject Lands consist of nine (9) individual properties located at 401-413 Brant Street, 444-450 John Street, and 2002 and 2012 James Street.

6The Subject Lands are bounded by James Street to the north, Brant Street to the west, John Street to the east and City owned lands immediately south. They have approximately 50.3 metres (“m”) of frontage on James Street, 40.4 m of frontage on Brant Street, and 40.35 m of frontage on John Street.

7The Subject Lands are surrounded by a variety of land uses consistent with a downtown area including commercial, residential, and institutional uses, as follows:

1. North: A 23-storey mixed use building presently under construction.

2. East: A six (6) storey office building (439 John Street and 440 Elizabeth Street) and surface parking lot.

3. South: A City owned parking lot, bus terminal and pedestrian promenade (Elgin Street Promenade).

4. West: Burlington City Hall, located across from the Subject Lands.

PROPOSED DEVELOPMENT AND HISTORY OF APPLICATION

8The Applicant proposes the development of an 18 storey, 201-unit mixed-use residential building with ground and second floor commercial uses (“Proposed Development”). An Official Plan Amendment (“OPA”) and Zoning By-Law Amendment (“ZBL”), discussed further below, were approved by City Council on July 16, 2018, which facilitate this Proposed Development.

9The Applicant submitted the Application pertaining to the fifteen minor variances before the Tribunal on May 18, 2022 (“Application”). At the Hearing, the Applicant’s Counsel, as well as the expert planner, confirmed that, despite the variances requested, the built form of the Proposed Development will be substantially in accordance with the OPA and ZBL, described further below.

10In a Staff Report dated October 21, 2022, City Planning staff supported the Application with respect to all fifteen (15) of the minor variances requested. In a subsequent Staff Report dated October 25, 2022, City Transportation staff confirmed their support for the variances related to stacked parking and ramp slope.

11On November 1, 2022, the COA approved 13 of the 15 minor variances requested, and refused variances 2 and 3, as numbered in Schedule A to this Decision.

12The Applicant appealed the COA’s decision on November 15, 2022.

THE HEARING

13In support of the Application, the Applicant called one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty form for Mr. Glenn J. Wellings. Mr. Wellings was qualified, without objection, to provide expert opinion evidence in the field of Land Use Planning. It was Mr. Wellings’ professional planning opinion that the Variances requested in the Application are consistent with applicable provincial policies, meet the four tests of s. 45(1) of the Act, and are good planning.

[Planning act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) – [Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth)

14Mr. Wellings testified that the Application has proper regard for matters of Provincial interest pursuant to Section 2 of the Planning Act. The Application will efficiently utilize existing infrastructure and services, contribute to a range of housing opportunities, promote a well-designed built form, and is an appropriate location for growth and development.

Provincial Policy Statement, 2020 (“PPS”)

15Mr. Wellings testified that the Application is consistent with the PPS. He opined that, in line with Part IV (Vision for Ontario’s Land Use Planning System) of the PPS, the Application facilitates the development of a transit-supportive mixed-use development that will promote walkability, contribute to a range of housing options, promote intensification, and will respond to the housing needs of current and future residents.

16The PPS further promotes land use patterns, densities and a mix of land uses within settlement areas that prepare for the impacts of a changing climate, in addition to support for the efficient use of land, resources and infrastructure, active transportation and transit-supportive development (Policy 1.1.1). The variances in the Application, and specifically those pertaining to reduced parking and stacked parking, will specifically contribute to efficient land use and cost-effective development. Reducing the parking standard will encourage alternate modes of transportation including transit use and contribute to the optimization of transit investment.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”)

17Mr. Wellings testified that the Application conforms to the Growth Plan. The Subject Lands are located within a Strategic Growth Area (Secondary Regional Nodes). Mr. Wellings referred to Policy 2.2.1(2)(c), which states that, “…within settlement areas, growth will be focused in delineated built-up areas.” The Subject Lands are within the City’s Built Boundary. The Application conforms to the guiding principles and policies of the Growth Plan outlined in Policy 1.2.1. The Application prioritizes intensification within a Strategic Growth Area and facilitates a compact development that contributes to a complete community and adds to the range and mix of housing options available in the community.

Analysis Pursuant to [Section 45(12)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec12_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

18Mr. Wellings testified that the requested variances both individually and cumulatively meet the four tests outlined in s. 45(1) of the Act.

19Mr. Wellings first explained that the Proposed Development facilitated by the variances maintains the general intent and purpose of the applicable official plans and the Zoning By-law as follows:

1. Mr. Wellings explained that the Subject Lands are designated “Urban Area” in the Region of Halton’s Official Plan (Region’s OP”). Amendment No. 48 (“Region’s OPA 48”) to the Region’s OP designates the Subject Lands as being within a Strategic Growth Area, and within a “Secondary Regional Nodes” designation. Secondary Regional Nodes are “intended to be a focus for growth through mixed use intensification at a scale appropriate for their context”. Mr. Wellings testified that the Application conforms to the Region’s OP as amended.

2. Mr. Wellings explained that Official Plan Amendment No. 113 (“OPA 113”) to the City’s Official Plan (“City’s OP”) was approved by City Council on July 16, 2018. OPA 113 contains a site-specific policy within the existing “Downtown Mixed Use Centre” and “Downtown Core Precinct” designations to permit a mixed-use building with a maximum of 18 storeys and maximum floor area ratio of 8.4:1 on the Subject Lands. The Application, Mr. Wellings testified, maintains the built form in accordance with OPA 113, as the minor variances requested are technical in nature, do not change the built form, and allow the Proposed Development to be built substantially in accordance with OPA 113.

3. Mr. Wellings explained that Zoning By-law 2020.399 (“ZBL”) was approved by City Council on July 16, 2018. The ZBL zones the Subject Lands as H-DC-489 (Downtown Core), which allows a maximum 18 storey mixed-use apartment building with 760 square metres (m2) of ground floor retail and/or service commercial and 365 m2 of second floor retail, service commercial and/or office space, as well as various other zone provisions. The Holding Provision included in the ZBL is tied to a Record of Site Condition, updated geotechnical and functional servicing reports and execution of a Residential Development Agreement, which the Applicant has executed. Mr. Wellings testified that the Application does not substantially change or alter the ZBL. Rather, the minor variances requested are technical in nature and will allow the Proposed Development to be built in accordance with the ZBL.

20Mr. Wellings also described how the variances themselves met the test described in s. 45(1), as detailed below.

Parking / Stacked Parking Variances (Variances 1, 2, and 3)

21Variances 1, 2, and 3, as identified numerically on Schedule A to this Decision, relate to parking including stacked parking. Mr. Wellings testified that the City’s OP includes policies that seek to reduce dependency on the automobile and provide for the consideration of reduced parking ratios/standards subject to an evaluation by the City. The City’s OP also envisions the downtown (i.e., “Mixed Use Activity Area”) as an area containing employment, shopping, and residential uses in a compact urban form at higher intensities that is pedestrian oriented and transit accessible.

22Mr. Wellings explained that the parking stackers are provided on the P1 level (out of a total of five parking levels) only and provide for the efficient use of underground parking while taking advantage of current technology that is being used successfully in other jurisdictions. This aligns with provincial policy, which promotes the efficient use of land and available infrastructure. Mr. Wellings also referred to a Parking Study Addendum prepared by Paradigm Transportation Solutions Limited, dated August 16, 2021, wherein it was concluded that a parking standard of 1.07 parking spaces per unit is appropriate given the proximity to the downtown bus terminal immediately south, various transit routes that support the downtown and provide connection to the Burlington GO Station, and the nearby municipal parking with over 700 spaces that is available. Moreover, bicycle parking for 160 spaces is proposed for the development.

23Mr. Wellings opined that the general intent and purpose of the City’s OP and ZBL is to provide adequate parking in support of the Proposed development, and a 1.07 spaces per unit parking standard (including the use of parking stackers) is appropriate and satisfies the general intent and purpose of the City’s OP and the ZBL. Additionally, providing a parking standard based on need, rather than producing an over supply of parking, and using existing technology (i.e., parking stackers) optimizes and promotes efficient development and is desirable for the appropriate use and development of the Subject Lands. Lastly, he stated that the variances are minor in nature, and no adverse impact arises from these variances. He explained that, though some obstruction results from the use of stacked parking and consumers will have to adjust to this, this slight obstruction in use does not impact his opinion regarding these variances.

Underground Parking Ramp Variance (Variance 4)

24Variance 4, as identified numerically on Schedule A to this Decision, relates to the underground parking ramp, and results from a difference in interpreting the ZBL. The parking ramp entrance/exit is from John Street. Mr. Wellings testified that the location, configuration and setback of the underground parking ramp has not changed since City Council’s approval of OPA 113 and the ZBL. However, through a review of the related site plan application, City Zoning staff identified the need for a variance with respect to the parking ramp setback. The 6.0 m setback in the ZBL was measured from the John Street property line to the point where the ramp proceeds downwards. City staff have indicated that the setback should have been measured from the property line to the commencement point of the parking ramp despite this section being at grade.

25Thus, Mr. Wellings opined that this variance is technical in nature. The ramp location remains in the same location from John Street where there are no issues with respect to compatibility or conflicts with surrounding land uses. John Street is the appropriate location for the entrance/exit to the underground parking. The variance requested satisfies the intent and purpose of the City’s OP and ZBL, is minor in nature and is desirable for the appropriate use and development of the Subject Lands.

Heritage Building Setback/Height Variances (Variances 5, 6, and 15)

26Variances 5, 6, and 15, as identified numerically on Schedule A to this Decision, relate to two (2) heritage buildings associated with the Proposed Development located at 401 Brant Street and 444 John Street. Mr. Wellings testified that the ZBL requires a 3.0 m building setback from Brant Street and 1.8 m from John Street, meaning that the façades of these heritage buildings would need to be moved to achieve compliance with the ZBL. In addition, the ZBL requires a minimum height of 4.7 m for Floor 1 and 3.8 m for Floor 2 for the existing heritage buildings, which cannot be achieved in their current state. The purpose of Variances 5, 6, and 15 is to maintain the existing setbacks and height of the existing heritage buildings and their façades.

27Mr. Wellings referred to a letter dated April 4, 2022, from the Project Heritage Architect, GBCA Architects, who recommended that the existing heritage buildings remain undisturbed to preserve the character and integrity of the heritage façades. Mr. Wellings agreed and opined that the preservation of the heritage buildings and façades in their current location and at their present height is preferred. There is concern that the relocation of the heritage façades and altering the height (increasing it to meet the minimum height requirement of the ZBL) of the heritage buildings may impact the structural integrity and heritage value of the buildings.

28With respect to the minor variance test, Mr. Wellings said that the general intent and purpose of the City’s OP and the ZBL is to retain the existing heritage façades. Recognizing the existing setbacks and heights of these buildings through minor variances is appropriate and minor in nature and desirable for the appropriate use and development of the Subject Lands.

Terrace/Balcony Encroachment Variances (Variances 7-8, and 10-13)

29Variances 7-8 and 10-13, as identified numerically on Schedule A to this Decision, relate to terraces and balconies. Mr. Wellings testified that the ZBL permits balconies on Floors 4-17 to encroach a maximum of 2 m, but does not specifically address terraces. City staff define balconies and terraces as the same, which would effectively restrict the use of terraces to a maximum of 2 m.

30The terraces contemplated in the Proposed Development provide important design and amenity functions. Mr. Wellings explained that it was not the intent of the ZBL to restrict the use of these terraces to a maximum of 2 m. In fact, the full utilization of the terraces, as consistently shown on the architectural plans and included in the calculation of amenity space, is necessary to achieve the minimum amenity standards (18 m2 per unit) as set out in the ZBL.

31Mr. Wellings stated that the terraces were provided to achieve a 45-degree angular plane along Brant Street. The terrace locations have not changed since City Council approved the ZBL. Mr. Wellings further opined that the variances requested are consistent with and reflect the proposed building design approved by City Council, and these variances satisfy the general intent and purpose of the City’s OP and ZBL. Moreover, the variances are minor in nature and desirable for the appropriate use and development of the Subject Lands. There are no adverse impacts arising from the variances or concerns with respect to noise, wind, privacy, or overlook.

Floor Area Ratio Variance (Variance 9)

32Variance 9, as identified numerically on Schedule A to this Decision, relates to Floor Area Ratio, which was originally calculated at 8.4:1, but incorrectly excluded certain areas within the underground parking garage. Mr. Wellings testified that, based on the definition of “Gross Building Floor Area” in the ZBL, only those areas devoted to the parking of motor vehicles should have been excluded. The correct calculation of the Floor Area Ratio is 8.8:1. Thus, this variance arises from an error in the original Floor Area Ratio calculation and is technical in nature.

33Mr. Wellings stated that the intent and purpose of the Floor Area Ratio is to regulate the size of the building consistent with the approval of OPA 113 and ZBL. The contemplated built form, including building height and setbacks, has not changed since the approval of OPA 113 and the ZBL. This variance satisfies the general intent and purpose of the City’s OP and the ZBL. The variance is minor in nature and will not result in any adverse impact, and is desirable for the appropriate use and development of the Subject Lands.

Definition of Storey Variance (Variance 14)

34Variance 14, as identified numerically on Schedule A to this Decision, relates to the definition of “storey.” Mr. Wellings testified that Variance 14 identified by City staff proposes to vary the definition of “storey” to exclude a proposed internal stairway situated between the first and second floor for fire access purposes. The consideration of an internal stairway as a separate “storey” was not accounted for in the drafting of the ZBL. Thus, this variance is technical in nature and will not alter the built form or building height. Moreover, the proposed stairway is internal to the building and not visible from the public realm.

35Mr. Wellings stated that the intent and purpose of the City’s OP and the ZBL is to regulate floors based on commercial and residential use. This variance satisfies the general intent and purpose of the City’s OP and the ZBL, is minor in nature and is desirable for the appropriate use and development of the Subject Lands. There is no adverse impact arising from this variance.

Conclusion

36Mr. Wellings concluded that, based on the foregoing, the requested fifteen (15) Minor Variances represent good planning. He further concluded that: the Application has appropriate regard for matters of Provincial interest pursuant to Section 2 of the Planning Act; the Application is consistent with the PPS; and it conforms to the Growth Plan. Moreover, Mr. Wellings stated that the Application satisfies the four (4) tests as set out in Section 45(1) of the Planning Act, as it maintains the general intent and purpose of the City’s OP as amended by OPA 113 and the ZBL as approved by City Council; it is desirable for the appropriate use and development of the Subject Lands and the implementation of the approved 18-storey mixed use building; and it is minor in nature and no adverse impacts will arise from the Application. Mr. Wellings recommended that the Tribunal allow the Appeal and approve the minor variances.

PROPOSED CONDITIONS TO THE MINOR VARIANCES

37In the COA’s Decision dated November 1, 2022, the following conditions to the minor variances were proposed:

1. The Applicant shall obtain a Zoning Clearance Certificate and a Building Permit.

2. The Applicant shall for Variances 5 & 6: Provide (minimum 4) sections for the underground parking structure and above ground structure to confirm all elements of the proposed development are contained to within the subject property limits, for staff review and approval. Sections through the heritage structures are required. Sections to include, foundation, basement walls, foundation drainage, all aspects of (temporary) shoring/tiebacks/etc., above ground structure, etc., all to clearly demonstrate all elements of the proposed development above and below ground do not encroach into the municipal right of ways or adjacent (south) neighboring property.

3. The Applicant shall for Variances 5 & 6 submit a revised Construction and Mobility Management Plan including details of protection measures for the heritage structures and/or details of temporary relocation of the heritage buildings, for review and approval by the Director of Engineering Services or their designate.

4. The Applicant shall obtain a Public Tree permit in accordance with the Public Tree By-law 68-2013.

5. The Applicant shall apply to the Burlington Urban Design Advisory Panel for review of the design features of the proposed development and implementation of their recommendations shall be incorporated into the Site Plan approval process to the satisfaction of the Director of Community Planning or their designate.

38Mr. Wellings testified that the only appropriate condition to be attached to the Application would be Condition 1. He explained that Conditions 2, 3, and 4 are to be addressed in the Site Plan Approval process. Condition 5 has already happened, and there is no further need for it, but even if that was not the case, it would not be appropriate to attach this Condition to the minor variances Application.

39The Applicant’s counsel confirmed that the Applicant would only agree with Condition 1 being attached to the minor variances. Moreover, he added that Condition 4 is simply a bylaw that requires compliance, and there is no need for an Order in that regard. The City’s Counsel agreed with only Condition 1 being attached to the minor variances, as the other Conditions will be dealt with through the Site Plan Approval process.

FINDINGS

40The Tribunal is satisfied by the evidence provided by Mr. Wellings, through his uncontroverted testimony, that the four tests outlined in s. 45 of the Act have been satisfied, and that the proposal has proper regard for matters of provincial interest, is consistent with the PPS, and conforms with the Growth Plan and applicable policies. Mr. Wellings’ testimony, as well as the totality of evidence before the Tribunal, supports the authorization of the Minor Variances requested in the Application, along with the Condition that, “The Applicant shall obtain a Zoning Clearance Certificate and a Building Permit.”

ORDER

41THE TRIBUNAL ORDERS that the appeal of the Minor Variances is allowed and the minor variances to Zoning By-law 2020.399, outlined in Schedule A to this Decision, are authorized subject to the condition that the Applicant obtain a Zoning Clearance Certificate and a Building Permit.

“Bita M. Rajaee”

BITA M. RAJAEE

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.

SCHEDULE A

1. To permit 1.07 parking spaces per unit instead of the minimum required 1.25 spaces per unit.

2. To permit a maximum of 61 stacked parking spaces in stacked parking elevators with an area of 15.6 m2 instead of the minimum required 16.5 m2.

3. To permit a maximum of 61 stacked parking spaces in stacked parking elevators, which are not readily accessible without obstructions at all times, for parking and removal of a motor vehicle without the necessity of moving another vehicle or obstruction.

4. To permit a 1.8 m setback for the entrance and exit ramp to the below grade parking structure abutting John Street instead of the minimum required 6 m.

5. To permit a 0 m yard abutting Brant Street instead of the minimum required 3 m for an existing heritage building at 401 Brant Street.

6. To permit a 0.6 m yard abutting John Street instead of the minimum required 1.8 m for an existing heritage building at 444 John Street.

7. To permit a 10.1 m yard abutting Brant Street on 18th storey for the proposed terrace/balcony instead of the required 13 m.

8. To permit a 4.9 m yard abutting John Street on 18th storey for the proposed terraces/balconies instead of the required 7.8 m.

9. To permit a Floor Area Ratio of 8.8:1 instead of the maximum permitted 8.4:1 for a proposed 18-storey apartment building.

10. To permit a 4 m balcony encroachment on the 4th storey Brant Street elevation instead of the maximum permitted 2 m.

11. To permit a 3 m balcony encroachment on the 4th storey John Street elevation instead of the maximum permitted 2 m.

12. To permit a 3.2 m balcony encroachment of the 5th storey Brant Street elevation instead of the maximum permitted 2 m.

13. To permit a 3 m balcony encroachment on the 4th storey James Street elevation instead of the maximum permitted 2 m.

14. Notwithstanding the definition of Storey, to exclude the internal stairway access corridor between the first and second floors from being defined as a storey.

15. Notwithstanding Exception 489 – (1)(k) The minimum height of 4.7 m for Floor 1 and 3.8 m for Floor 2 shall not apply to the two heritage buildings, municipally know as 401 Brant Street and 444 John Street.