Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 16, 2024

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: February 9, 2024 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 FEBRUARY 9, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This Hearing took place 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 (“Evergreen Lands”). The appeals were filed with the Ontario Municipal Board, the predecessor to this Tribunal, in December 2017.

2Three CMCs have taken place on this matter on: June 11, 2019 (“First CMC”), January 10, 2020 (“Second CMC”), and October 18, 2023 (“Third 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 (“Oakville”), Region of Halton (“Region”), Conservation Halton, and Paletta International Corp. (“Paletta”). Prior to the Third CMC, Paletta withdrew its Party status.

3The Applicant had also submitted an appeal pursuant to section 22(7) of the Act for an Official Plan Amendment (“OPA Appeal”). However, after the Second CMC, in 2021, the Parties confirmed that the City had adopted OPA 107, and the Applicant withdrew its OPA Appeal.

4A fourth CMC was scheduled, but the Parties advised that they had reached a settlement agreement. As such, this Hearing took place to consider and approve the ZBA and DPOS as addressed by the settlement agreement, if warranted.

HEARING

5In support of the settlement agreement, the Parties relied on oral and written testimony by Antonio De Franco, and supplied an Affidavit sworn by him on February 8, 2024. The Curriculum Vitae and signed Acknowledgement of Expert Duty form for Mr. De Franco were provided, confirming his expertise in the area of Land Use Planning. Mr. De Franco was qualified by the Tribunal, without objection, to provide expert opinion evidence in the field of Land Use Planning.

6As Mr. De Franco explained, the proposed DPOS, as revised by the settlement agreement, comprises approximately 1,304 residential units, containing 363 single detached homes, 73 townhouses, 112 rear lane townhouses, and 756 apartment units. It is anticipated that the total population within the Evergreen Community would be approximately 2,700 residents. In addition, the Evergreen Lands are planned to lead to approximately 800 jobs. The detailed design for the employment blocks and for the higher-density residential blocks will occur through the Site Plan Approval process, and as a result, the residential and employment yields are only estimates at this point. The proposed ZBA amends the City’s Zoning By-law No. 2020 to implement the DPOS.

7The planning documents affecting this matter include: the Planning Act; the Provincial Policy Statement, 2020 (“PPS”); A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, August 2020 Consolidation (“Growth Plan”); the Greenbelt Plan, 2017; Halton Region Official Plan, November 4, 2022 consolidation (“ROP”); 1997 City of Burlington Official Plan and 2020 Burlington Official Plan (“City’s OPs”); Official Plan Amendment 107 (“OPA 107”); and the Tremaine Dundas Secondary Plan (“Secondary Plan”).

8Citing numerous policies, Mr. De Franco testified that the DPOS and the proposed ZBA:

a. Have appropriate regard for the matters of provincial interest identified in section 2 of the Act and for the criteria identified in section 51(24) of the Act, as the ZBA and DPOS would facilitate the creation of a mixed-use compact community that allows for the efficient use of resources, including land, energy, water, and transportation infrastructure;

b. Are consistent with the PPS as the ZBA and DPOS would result in the development of a healthy and livable community, containing a range of new housing, by promoting efficient development and land use patterns, accommodating a range of residential and employment uses, integrating land use planning, growth management, transit-supportive development and infrastructure planning, and conserving biodiversity on the Evergreen Lands;

c. Conform with the Growth Plan and the Greenbelt Plan, as they facilitate development on lands that have been identified to accommodate growth, while also protecting lands that are associated with the Greenbelt;

d. Conform with the ROP, supporting healthy and complete community growth within a Designated Greenfield Area while also protecting the Regional Natural Heritage System. The phasing provisions proposed within the ZBA conform with the Region’s growth management and infrastructure phasing objectives;

e. Conform with the City’s OPs, including the area-specific policies contained in OPA 107. They achieve a range of municipal planning policy objectives relating to compact and mixed-use urban growth, increasing the supply of housing, protecting the Natural Heritage System and important cultural resources, enhancing the parks, public realm, and street network, and achieving land use compatibility; and

f. Conform with the Secondary Plan and appropriately implement the directions contained in the Tremaine Dundas Urban Design Guidelines.

9He concluded that the DPOS and ZBA, as revised by the settlement agreement, conform with the prevailing policy framework, achieve good planning, and are in the public interest. He recommended that they be approved by the Tribunal.

10While the Parties have reached a settlement agreement, there are two matters that remain outstanding, as discussed below.

11With respect to the DPOS, Mr. De Franco explained that discussions with the City, the Region, and Conservation Halton concerning appropriate conditions of Draft Plan Approval (“Conditions”) have not concluded. Therefore, any approval of the DPOS would need to be subject to a subsequent approval of the Conditions by the Tribunal. This was acceptable to the Tribunal and a date has been scheduled to address the Conditions. The particulars of this Hearing are addressed below.

12With respect to the ZBA, Mr. De Franco explained that the Evergreen Lands have been allocated 495 single detached equivalent (“SDE”) dwelling units through the Regional servicing and allocation program. The Region has indicated that 504 SDEs would be required to fully service the development. The shortfall of nine SDEs will be made up by transferring allocation from other lands owned by the Applicant within the Region. For this reason, the Parties requested that the Tribunal grant an Interim Order, withholding its Final Order approving the ZBA until it is advised by the Region that the transfer of the nine SDEs has been approved. This was agreeable to the Tribunal.

FINDINGS

13The Tribunal accepted the uncontested opinion evidence of Mr. De Franco, and found that the requested DPOS and ZBA, as revised by the settlement agreement, meet the required legislative tests. Moreover, the Tribunal found that the DPOS and ZBA represent good planning and are in the public interest. As such, the Tribunal found that the DPOS and the ZBA warranted approval. An oral ruling was made at the Hearing to this effect.

HEARING REGARDING CONDITIONS OF DRAFT PLAN APPROVAL

14As explained above, a Hearing was scheduled to address the Conditions, which the Parties had yet to finalize. The Parties advised that a one-day Hearing was sufficient. Accordingly, a Video Hearing has been scheduled to take place on Tuesday, March 19, 2024, commencing at 10 a.m., at the following coordinates:

GoTo Meeting: https://global.gotomeeting.com/join/709076365

Access code: 709-076-365

15On that date, Parties are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections. Moreover, Parties 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

16Persons 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 the same as the access code noted above.

17Individuals 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.

WITHDRAWAL OF OAKVILLE’S PARTY STATUS

18On February 12, 2024, the Tribunal received an email from Oakville’s Counsel as follows:

…I am confirming that the Town of Oakville’s interest in these appeals has been addressed by the Tribunal’s approval of the draft plan of subdivision and zoning by-law.

While we would like to be copied with both the memorandum of the interim decision, and the final order, we are withdrawing as a party and do not intend to attend at further hearings related to the conditions of draft approval.

19This withdrawal of Party status is confirmed by the Tribunal.

ORDER

20THE TRIBUNAL ORDERS as follows:

a. The appeal by Evergreen Community (Burlington) Inc. (“Applicant”), pursuant to section 51(34) of the Planning Act (“Act”) is allowed, in part, and the Draft Plan of Subdivision set out in Attachment 1 to this Order is approved, subject to the fulfillment of Conditions of Draft Plan Approval to be addressed as per paragraph [20b].

b. A one-day Hearing has been scheduled, with particulars provided above in this Decision, to address the consideration of Conditions of the Draft Plan Approval. The Parties are to provide all necessary documents and a status update to the Tribunal’s Case Coordinator by Monday, March 11, 2024.

21THE TRIBUNAL FURTHER ORDERS, on an interim basis, as follows:

a. The appeal by the Applicant pursuant to section 34(11) of the Act is allowed, in part, and the proposed amendment to the City of Burlington Zoning By-law No. 2020, as amended, set out in Attachment 2 to this Order, is approved in principle, contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified at paragraph [21b] of this Order.

b. The Tribunal’s Final Order in respect of the Zoning By-law Amendment for the Evergreen Lands shall be withheld until such time as the Tribunal receives confirmation from the Region of Halton (“Region”) that a transfer of allocation of at least nine single detached equivalent dwelling units from other lands in the Region to the Evergreen Lands has been approved.

c. The Region and the Applicant are to provide confirmation that the Tribunal can issue its Final Order or to provide a status update in writing to the Case Coordinator by Tuesday, April 30, 2024.

d. The Member is seized with respect to the issuance of the Final Order and 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.

ATTACHMENT 1

ATTACHMENT 2