Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
February 16, 2024
CASE NO(S).:
OLT-22-002219
(Formerly PL210040)
OLT-22-002483
(Formerly PL200150)
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:
December 15, 2023 by Written Hearing
APPEARANCES:
Parties
Counsel
City of Burlington
Andrew Biggart
Christina Kapelos
Regional Municipality of Halton
Kelly Yerxa
Ontario Stone, Sand and Gravel Association
Nelson Aggregate Co.
Marc Kemerer
David White
Conserving Our Rural Ecosystems of Burlington Inc.
David Donnelly
DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision and Order arises from appeals filed by Ontario Stone, Sand and Gravel Association (“OSSGA”) and Nelson Aggregate Co. (“Nelson”) pursuant to s. 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning the new official plan (“New OP”) for the City of Burlington (“City”).
2The New OP was adopted by the City on April 26, 2018 and subsequently approved with modifications by the Region of Halton (“Region”) on November 30, 2020. 48 appeals were filed with the Tribunal and are being heard together with 21 outstanding appeals to Case No. OLT-22-002483. To date, six appeals to these proceedings have been withdrawn.
3At a Case Management Conference (“CMC”) held on February 24, 2022, the Tribunal approved a phased hearing approach to address the appeals, with Phase 1C set as the Aggregates phase. OSSGA and Nelson are the appellants to Phase 1C. Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”) is a Party sheltering under the issues of OSSGA and Nelson.
SETTLEMENT
4At its meeting on November 2, 2023, City Council accepted a settlement offer from OSSGA and Nelson respecting Phase 1C to Case No. OLT-22-002219 (“Settlement”).
5On consent of OSSGA and Nelson, the City filed a Motion Record with the Tribunal in support of the Settlement, dated December 11, 2023 (“Motion”). The Motion, hereby marked as Exhibit 1, seeks an Order modifying the New OP as set out in Exhibit “D” to the Affidavit of Kelly Cook.
6Specifically, the Motion proposes to modify three policies pertaining to aggregates in the New OP: Policy 2.2.1 c); Policy 4.10; and Policy 9.1.
7The Motion also notes that the Settlement will resolve the issues of OSSGA and Nelson pertaining to four additional aggregate policies in the New OP that are not proposed to be modified: Policy 1.4.4; Policy 2.1; Policy 2.3.6; and Policy 9.4.
Supporting Evidence
8In support of the Settlement, Exhibit 1 includes the sworn Affidavit of Kelly Cook, which details the requested modifications to the New OP.
9Ms. Cook is a Senior Planner in the Policy and Community section of the Community Planning Department at the City and is a Pre-Candidate Member of the Ontario Professional Planners Institute. She has 10 years of professional land use planning experience in the public sector and has participated in planning policy formulation for the Region and the City, as well as for the Region of Peel. She holds an Honours Bachelor of Environmental Studies from York University and a Master of Applied Environmental Studies (Planning) from the University of Waterloo.
10The Tribunal hereby qualifies Ms. Cook to provide expert opinion evidence on matters pertaining to land use planning.
Modified Policies
11Ms. Cook’s Affidavit provides a detailed planning analysis with respect to the proposed modifications to the New OP resulting from the Settlement. In her opinion, the proposed policy modifications:
Maintain or enhance conformity with the Region Official Plan (“ROP”) and provincial plans, including the Niagara Escarpment Plan (“NEP”);
Enhance consistency with the Provincial Policy Statement, 2020 (“PPS”);
Clarify the intended meanings and outcomes of certain policies;
Remove undefined terms and reduce policy redundancy in the New OP;
Update relevant terminology;
Remove the potential for misinterpretation; and
Correct minor typographical errors.
12In Ms. Cook’s professional opinion, the proposed modifications as provided for in Exhibits “C” and “D” to her Affidavit (reflected in Schedule 1 to this Decision and Order):
a) Have regard for matters of provincial interest as set out in s. 2 of the Act, and in particular matter 2(c) regarding the conservation and management of natural resources and the mineral resource base;
b) Are consistent with the PPS;
c) Conform with the Growth Plan for the Greater Golden Horseshoe, 2020;
d) Conform with the Greenbelt Plan and the Niagara Escarpment Plan;
e) Conform with the ROP;
f) Conform with the balance of mineral aggregate-related policies of the New OP; and
g) Represent good planning and are in the public interest.
Unmodified Policies
13In addition to the modified policies listed in Paragraph [6] of this Decision, Exhibit “D” to Ms. Cook’s Affidavit also includes the unmodified policies listed in Paragraph [7] of this Decision. Exhibit “D” to Ms. Cook’s Affidavit notes that all policies contained therein are recommended for approval.
Remaining Issues
14Ms. Cook’s Affidavit describes the remaining issues of OSSGA and Nelson that are not resolved by the Settlement as follows:
Issues pertaining to policies 5.5 and 9.2 of the New OP, which will be addressed through an anticipated settlement for Phase 1A – Agriculture to these proceedings; and
Issues pertaining to Policies 2.2.2 d), 2.2.3, 2.3.5, 3.5, 4.1, 4.2, 4.4, 4.6, 9.3, 12.1.1(2) b), and 12.1.2(2.2) c) of the New OP, which remain outstanding.
15All other issues raised by OSSGA and Nelson have been resolved by virtue of the Settlement.
BILL 150: PLANNING STATUTE LAW AMENDMENT ACT
16Following the conclusion of the Written Hearing for this matter and prior to the issuance of this Decision and Order, the Tribunal canvassed the Parties to seek input on whether the passing of Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023 (“OPAA”) that received Royal Assent on December 6, 2023, has any impacts on the potential outcome of this matter. On February 1, 2024, the City provided their position that, going forward, some policy changes may be required to the New OP to ensure conformity with the changes imposed by Bill 150, and that any such policy changes could be addressed during future Tribunal proceedings pertaining to these matters.
17The Tribunal subsequently reached out to the Parties on February 2, 2024, and again on February 9, 2024, to seek confirmation as to whether there were any impacts arising from Bill 150 on the specific policies contained within the Motion for approval of the Phase 1C Settlement. The Parties have not provided any responses in this regard as of the date of issuance of this Decision.
FINDINGS
18Based on the uncontroverted expert opinion evidence of Ms. Cook, the Tribunal finds that the modified policies set out in Schedule 1 to this Decision and Order satisfy all required statutory tests (including fulfilment of the Tribunal’s obligations pursuant to the OPAA), represent good planning, and are in the public interest. The Tribunal has had regard to the decisions of City Council related to this planning matter, including the City’s endorsement of the Settlement.
ORDER
19THE TRIBUNAL ORDERS that the appeals pursuant to section 17(36) of the Planning Act by Ontario Stone, Sand and Gravel Association and by Nelson Aggregate Co., being Appeal Nos. 1 and 40 to OPA-22-002219, respectively, are allowed in part.
20THE TRIBUNAL ORDERS that the Official Plan for the City of Burlington is modified as set out in Schedule 1 to this Order and that as modified, the policies of the Official Plan for the City of Burlington contained in Schedule 1 to this Order are approved.
“S. Dixon”
s. dixon
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.
SCHEDULE 1
APPROVED POLICIES OF THE OFFICIAL PLAN FOR THE CITY OF BURLINGTON
SECTION
APPROVED POLICY TEXT
1.4.4
A HEALTHY AND GREENER CITY
a) Supports and protects important and unique geographic features of the city, including the Lake Ontario waterfront and the Niagara Escarpment;
b) Protects and strengthens the character of the rural community, protects Prime Agricultural Areas and supports and enhances the long term viability of the Agricultural System;
c) Maintains and enhances a healthy and sustainable natural environment for present and future generations;
d) Protects, restores and, where possible, enhances the long-term ecological function, connectivity and biodiversity of the Natural Heritage System;
e) Promotes conservation and the responsible and sustainable use of natural resources;
f) Promotes development measures and patterns to achieve a low carbon, energy secure and climate resilient community, protect life and property from natural hazards, and achieve sustainable community and building design;
g) Promotes health, safety and social well-being in the community through equitable access to a wide range of choices in housing, jobs, transportation, health care and recreation facilities, parks, green spaces and other public spaces and facilities, and amenities for all ages and abilities; and
h) Maintains and grows healthy urban greenspace through the provision of green infrastructure.
2.1
COMMUNITY VISION
The City’s community vision is based on City Council’s key strategic directions and the guiding principles contained in Chapter 1: Introduction, of this Plan.
Growth will be focused in the Urban Area to protect Burlington’s natural heritage and Rural Area; to build compact, vibrant, sustainable, resilient, transit-supportive, healthy and complete communities; to optimize use of existing and future infrastructure and services; to support active transportation; to reduce energy use and greenhouse gas emissions; and to support a strong and competitive economy.
The direction of growth in Burlington’s Urban Area requires the careful placement of new residents and jobs; growth is encouraged in some areas, while limited in others. In some places, such as the Natural Heritage System, development may be prohibited. Those areas that will see significant change over the planning horizon of this Plan are called intensification areas and represent a small fraction of Burlington’s total land area.
The building of intensification areas around the City’s GO Stations, called Major Transit Station Areas (MTSAs), the Downtown, the Uptown Urban Centre, Mixed Use Nodes and Intensification Corridors and other key locations will help ensure Burlington continues to be a thriving, vibrant 21st century city that easily supports and connects people of all ages and abilities to the places they live, work and play. Development in these areas will promote connected, walkable, transit-oriented communities that offer convenient access to employment opportunities, a full range of housing, public service facilities including schools and parks, and convenient access to various daily needs like shopping, services, and supports for residents throughout their entire lives.
Burlington’s rural area is envisioned as an economically and socially active area, producing agricultural products and providing rural recreational activities for the city. The City is committed to the protection and strengthening of the rural community. This means conserving the area’s rural character and protecting and enhancing its natural environment while enabling the rural economy, particularly agriculture, to evolve and change. The health of the Agricultural System and the protection of the agricultural land base are central to the future of the Rural Area. Connections between the Urban and Rural Areas will protect and strengthen the social, economic, and environmental well-being of both the Urban Area and the Rural Area, including through the production and consumption of local food.
The landscape of Burlington has changed remarkably over the last 50 years, and the evolution will continue. The combination of an economically strategic location, diversified economy and environmental and aesthetic factors, an extraordinary waterfront, its world-renowned Niagara Escarpment and other natural wonders has contributed to Burlington being a place where people and business thrive.
Community engagement, co-ordination and strategic thinking will be required to successfully manage the challenges and opportunities of growth through intensification and development. Residents, politicians, business owners, investors and others using the Official Plan must collaborate to shape the future of Burlington.
The building of the city will never have a date of completion, but is a continuous process of targeting growth in the right areas of the city to make good use of existing infrastructure and wise investment in new or upgraded infrastructure. The Plan’s long-term vision for the community will help ensure land use decisions made today contribute to the City’s goal of being a vibrant 21st century community.
2.2.1
c) The Rural Area consists of an agricultural system, a natural heritage system, rural settlement areas, and mineral resource extraction areas. The identification of these lands provides for the protection and strengthening of the rural community through the maintenance and enhancement of the natural heritage system, the protection of prime agricultural areas, support for the economic viability of agriculture, conservation of cultural heritage resources and protection of mineral aggregate resources and operations.
2.3.6
MINERAL RESOURCE EXTRACTION AREA
a) Lands identified as Mineral Resource Extraction Area are subject to the policies in Section 8.5, Mineral Resource Extraction Area, of this Plan.
4.10
[preamble]
Mineral aggregate resources are important to Ontario’s economy, and to the city’s growth and development, providing the raw materials used in the construction of the buildings that we live and work in and in the development of infrastructure. While mineral aggregate operations often are described as interim land uses, they may remain active for decades and result in permanent changes in the landscape with long term impacts. The development and operation of pits and quarries can have significant negative impacts on surface and groundwater resources and the Natural Heritage System, and significant impacts on agriculture, cultural heritage resources, transportation and air quality, and on the overall well-being of the surrounding community.
4.10.1
a) To ensure that mineral aggregate resource extraction occurs in a manner that minimizes social, economic, environmental and human health impacts.
4.10.1
g) To ensure that as much of the mineral aggregate resources as is realistically possible is made available as close to markets as possible.
4.10.2(2)
c) Subject to the other policies of this Plan, the applicable policies of the Provincial Greenbelt Plan, the Provincial Growth Plan and the Niagara Escarpment Plan, applicable Zoning By-laws, and site plans and conditions of the licence under The Aggregate Resources Act, the following uses may be permitted:
(i) agricultural operations;
(ii) normal farm practices;
(iii) existing uses;
(iv) mineral aggregate operations licensed pursuant to and in compliance with The Aggregate Resources Act;
(v) associated facilities to a mineral aggregate operation used in extraction, transport, beneficiation, processing or recycling of mineral aggregate resources and derived products such as asphalt and concrete, or the production of secondary related products, provided that such associated facilities:
a. are directly associated with the extraction of mineral aggregate resources from an integrated mineral aggregate operation, which may consist of more than one Aggregate Resources Act license;
b. are designed to be temporary and not to be utilized after extraction has ceased; and
c. are located in a manner that does not affect the final rehabilitation or enhancement of the site in accordance with an approved rehabilitation and enhancement plan;
(vi) non-intensive recreation uses such as nature viewing and pedestrian trail activities;
(vii) forest, fisheries and wildlife management;
(viii) archaeological activities;
(ix) essential linear infrastructure facilities subject to Subsection 6.1.2 h) of this Plan;
(x) accessory uses;
(xi) uses permitted in an approved Niagara Escarpment Park and Open Space Master/Management Plan, if the subject land is located within the Niagara Escarpment Plan Area; and
(xii) watershed management and flood and erosion control projects carried out or supervised by a public authority.
4.10.2(2)
d) All mineral aggregate operations and accessory operations shall be conducted in a manner that minimizes social, economic, environmental and human health impacts in accordance with Provincial standards and requirements and Regional and City Official Plan policies.
4.10.2(2)
i) In areas outside the Greenbelt Natural Heritage System, the City shall not permit new Mineral Resource Extraction Areas or expansions to existing Mineral Resource Extraction Areas in:
(i) The Niagara Escarpment Plan Area, except the Escarpment Rural Area;
(ii) significant wetlands;
(iii) habitat of endangered species and threatened species except in accordance with provincial and federal requirements;
(iv) significant woodlands, that are not young plantation or early successional habitat (as defined by the Ministry of Natural Resources and Forestry);
(v) for quarries, areas within two hundred (200) m of the Escarpment brow;
(vi) the Urban Area as identified on Schedule C: Land Use – Urban Area, of this Plan, and the Rural Settlement Areas as identified on Schedule I: Land Use – Rural Area, of this Plan; and
(vii) North Aldershot as identified on Schedule K: Land Use – North Aldershot, of this Plan, except in accordance with the time limited and area specific Minutes of Settlement dated June 1, 2013 and executed by the Region of Halton prior to the approval of the Regional Official Plan.
4.10.2(2)
j) Each Official Plan Amendment application to designate a new or expanded Mineral Resource Extraction Area shall be evaluated based on its individual merits and consideration of all the following factors and of the other policies of this Plan:
(i) adverse impacts on, and proposed measures to minimize or address such impacts on, the following:
a. the City’s Natural Heritage System, in accordance with Subsection 4.10.2(2) m) of this Plan;
b. the quality and quantity of surface and groundwater;
c. adjacent sensitive land uses including their source of drinking water;
d. the surrounding agriculture and rural communities in accordance with Subsection 9.2.2 e) (v) and (vi), of this Plan;
e. cultural heritage resources;
f. the transportation system;
g. the visual character of the area;
h. air quality; and
i. the Greenbelt Natural Heritage System, in accordance with Subsection 4.10.2(2) m) of this Plan;
(ii) the cumulative impacts of the proposal and other mineral aggregate operations in the general area;
(iii) the proposed rehabilitation plan and the compatibility of the proposed after-use with the objectives and policies of this Plan, the Regional Official Plan and Provincial Plans;
(iv) the risk of public financial liability during and after extraction where continuous active on-site management is required; and
(v) the provisions for municipal and community engagement, such as a Community Liaison Committee, in the operation and rehabilitation of the proposed mineral aggregate operation.
4.10.2(2)
l) The City will discourage the use of adaptive management plans or similar measures that will require continuous or perpetual active on-site management post rehabilitation.
(i) Within the Niagara Escarpment Plan Area, as identified on Schedule A-1: Provincial Land Use Plans and Designations, of this Plan, in areas with below-water table extraction, mineral aggregate operations requiring perpetual water management after rehabilitation is complete should be avoided but may be considered where it can be demonstrated that such actions would support other public water management needs.
4.10.2(2)
p) Mineral aggregate resource extraction shall be considered to be an interim land use. The City will support the progressive and final rehabilitation of mineral aggregate operations, provided that rehabilitation:
(i) takes place in a timely fashion;
(ii) limits the amount of disturbed area on an on-going basis;
(iii) adopts prevailing best management practices;
(iv) is consistent with the applicable Source Protection Plan(s); and
(v) conforms with the applicable policies of the Greenbelt Plan, the Provincial Growth Plan or the Niagara Escarpment Plan, as appropriate.
9.1.2
p) Mineral aggregate resources shall be protected and utilized in accordance with the policies of Section 4.10, Mineral Aggregate Resources, of this Plan.
9.4
MINERAL RESOURCE EXTRACTION AREA
The Mineral Resource Extraction Area designation on Schedule I: Land Use – Rural Area includes areas licenced pursuant to The Aggregate Resources Act. The objectives and policies of this Plan respecting the Mineral Aggregate Resource Extraction Area designation are contained in Section 4.10, Mineral Aggregate Resources, of this Plan.