Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

May 03, 2024

CASE NO(S).:

OLT-23-000148

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Renimmob Properties Limited

Subject:

Site Plan

Description:

To permit the construction of a 26-storey mix-use building

Reference Number:

535-12/22

Property Address:

535-551 Brant Street

Municipality/UT:

Burlington

OLT Case No.:

OLT-23-000148

OLT Lead Case No.:

OLT-21-001442

OLT Case Name:

Renimmob Properties Limited v. Burlington (City)

Heard:

March 22, 2024 In Writing

APPEARANCES:

Parties

Counsel

Renimmob Properties Limited

Scott Snider

Anna Toumanians

City of Burlington

Chris Barnett

Regional Municipality of Halton

Kelly Yerxa

DECISION DELIVERED BY David Brown AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal arises from an Appeal filed by Renimmob Properties Limited (“Appellant”) against the City of Burlington (“City”) for its failure to make a decision on an Application for Site Plan Approval (“SPA”) within the timeframe prescribed in the Planning Act, R.S.O. 1990, c.P.13 (“Act”).

2The SPA will facilitate the development of the lands known municipally as 535-551 Brant Street (“Subject Property”) with a 26-storey mixed-use residential building with retail floor space on the ground floor.

3The Tribunal previously considered and allowed Appeals with respect to Applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) applying to the Subject Property in its Order issued July 19, 2023. At that time the SPA Appeal was also before the Tribunal, however the Parties were unable to come to an agreement with respect to the conditions to be attached to the approval of the SPA. The Tribunal deferred consideration of the SPA Appeal at that time to allow the Parties to negotiate the conditions for the approval of the SPA.

4The Tribunal was notified that the Parties have settled the SPA Appeal and finalized Conditions of Approval for the SPA (“Conditions of Approval”). The Tribunal directed that this matter will be heard by written submissions pursuant to Rule 21.1 of the Tribunal’s Rules of Practice and Procedure and directed that a Notice and certain other documents related to these proceedings, including all affidavits and submissions and the Minutes of Settlement, be served to those individuals identified by the Tribunal. An Affidavit of Service, sworn March 15, 2024, confirming that Notice was served as directed by the Tribunal, was marked as Exhibit 1.

5The Tribunal received an Affidavit from David Falletta, a Registered Professional Planner and member of the Canadian Institute of Planners, in support of the Settlement and recommending approval of the SPA subject to the conditions as set out in his Affidavit. The Affidavit of Mr. Falletta was filed as Exhibit 2.

ANALYSIS AND FINDINGS

6In Mr. Falletta’s Affidavit, he opined that the proposed Site Plan drawings and the recommended Conditions of Approval are consistent with the Provincial Policy Statement, 2020 (“PPS”), conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and conform with the City Official Plan (“OP”). He further proffered that the Conditions of Approval for SPA are appropriate and address the criteria in s. 41(7) of the Act.

7In consideration of s. 41(4) of the Act, Mr. Falletta proffered that the site plan drawings address the matters identified as follows:

1. The site plan drawings show the location of all buildings and facilities and has regard for accessibility for persons with disabilities.

2. The site plan drawings and building elevations show the building and cross-section views, the massing and conceptual design of the proposed building, its relationship to adjacent buildings, streets and exterior public areas.

3. The site plan drawings illustrate that interior walkways are connected to exterior walkways and ultimately connect to streets.

4. The site plan drawings and landscape plans illustrate sustainable design elements.

5. The site plan has regard for accessibility for persons with disabilities.

8The Tribunal reviewed the Site Plan drawings filed and finds that the drawings appropriately and adequately address the matters set out in s. 41(4) of Act.

9Mr. Falletta opined that the proposed Conditions of Approval appropriately address the matters as set out in s. 41(7) of the Act as the site plan drawings and conditions include the following:

1. The provision of a road widening along Brant Street.

2. The location of access ramps, curbing and traffic direction signs.

3. The location of all vehicular loading and parking facilities.

4. A comprehensive walkway system connecting the building, including the elevator lobby, to the abutting municipal sidewalks.

5. Facilities designed to have regard for accessibility for persons with disabilities.

6. The provision of adequate lighting for the Subject Lands.

7. The provision of landscaping elements for Subject Lands and for the protection of adjoining lands.

8. The location of storage and waste collection areas.

9. The provision of stormwater management and servicing facilities to address stormwater, surface water run-off and wastewater.

10. Conditions to ensure that the building is maintained to the satisfaction of the City.

11. Conditions requiring the Owner to enter into a Site Plan Agreement.

10The Tribunal considered the proposed Conditions of Approval being recommended to the Tribunal for approval set out in Exhibit C of Mr. Falletta’s Affidavit (Tribunal Exhibit 2). The Tribunal finds the Conditions of Approval address the matters set out in s. 41(7) of the Act and appropriately implement the Site Plan drawings.

11The Tribunal reviewed the Order of the Tribunal issued July 19, 2023, with respect to the Subject Property approving the OPA and ZBA. The Tribunal finds that the Site Plan drawings implement the proposed development as contemplated in the Tribunal’s Order.

12The Tribunal accepts the conclusions and opinions proffered by Mr. Falletta and finds that Site Plan drawings and the Conditions of Approval are consistent with the PPS, conform with the Growth Plan and conform with the City’s Official Plan.

13The Tribunal approves the Site Plan drawings filed with the Tribunal marked as Exhibit 3 subject to the Conditions of Approval included in the Affidavit of Mr. Falletta.

ORDER

14THE TRIBUNAL ORDERS that the site plan and related drawings set out in the list contained in ATTACHMENT 1 to this Order are approved subject to the conditions set out in ATTACHMENT 2 to this Order. For further clarification, the site plan and related drawings are those drawings contained in Exhibit 3 filed with the Tribunal with respect to this matter.

“David Brown”

DAVID BROWN

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

Site Plan Drawings

ATTACHMENT 2

The Owner shall fulfill the following conditions to the satisfaction of the City of Burlington prior to obtaining Final Site Plan Approval and within 2 years from the date of this Order, failing which, such approval shall lapse; and

THAT the conditions of draft approval are as follows:

1.0 Conditions to be satisfied prior to Final Site Plan Approval:

1.1 Legal Group

1.1.1. Execute and register an agreement under Section 41 of the Planning Act or any other agreement to the satisfaction of the City Solicitor dealing with all the facilities or matters shown on the plans and drawings and the conditions set out herein.

1.2 Planning Group

1.2.1. Pay the City fees and deposit securities identified in Schedule D.

1.2.2. Submit the site plan in a compatible AutoCAD (2000) file.

1.2.3 Submit for approval details of all rooftop mechanical equipment. Rooftop equipment less than 1.2m in height to be painted in a neutral colour to blend in with the building. Rooftop equipment 1.2m in height or greater shall be screened from view from all sides.

1.2.4 Submit for approval written confirmation of the subject property address.

1.3 Site Engineering Group

1.3.1 Submit for approval an updated Detailed Noise Study, including but not limited to the following:

1.3.1.a. Assessment of proposed outdoor mechanical equipment and any necessary mitigation

1.3.1.b. Refer to Development Engineering site plan comments dated April 11, 2023 for further details/requirements

1.3.2 Submit for approval an updated Functional Servicing Report (storm-water management section), addressing the following:

1.3.2.a. update the post-development stormwater flows to include and correspond with the most up to date Grounded Engineering Hydrogeological Review Report.

1.3.2.b. clarify orifice pipe diameter and ensure it is consistently referenced throughout the report

1.3.3 Submit for approval revised engineering drawings stamped and certified by a Professional Engineer, refer to Development Engineering second submission comments dated April 11, 2023, for further details/requirements.

1.3.4 Submit for review and approval a draft reference plan identifying the widenings for review and approval prior to depositing at the Land Registry Office. All widenings (+/- 3.545m road widening of Brant Street, and a +/- 2.5m road widening of John Street) to be confirmed by an Ontario Land Surveyor.

1.4 Urban Forestry/Landscape Group

1.4.1. Submit an updated landscape cost estimate for all works on the updated landscape drawings.

1.5 Zoning Group

1.5.1. Apply for a Zoning Clearance Certificate for the proposed building.

1.5.2. Submit a completed Non-residential Development Charges Information Form.

1.5.3. Submit a survey plan, prepared by an Ontario Land Surveyor, showing the location and setbacks of the proposed building, any encroachments and confirming / showing deemed road widths for Brant Street and John Street.

1.6 Fire Group

1.6.1 Submit for approval an 8 ½ x 11 reduced site plan drawing clearly denoting the designated fire access routes for sign designation and record purposes.

1.7 Halton Region

1.7.1 The Owner must contact the Regional Services Permit Section, Gary.Brown@halton.ca, (905-825-6000 extension 7879), and provide him with the proposed draft site servicing plan drawings, for a more detailed review of the proposed water service connection laterals, water meters, water backflow prevention devices, wastewater service connection lateral, manholes, and to obtain a Regional Water and Wastewater Services Permit, and pay all necessary fees. The issuance of a Regional Services Permit is Halton Region’s confirmation that servicing will be available to service this site. Any water or wastewater service connections that currently exist to the property, that will not be utilized, currently exist in duplication or are deemed substandard, will be required to be disconnected at their respective mains by the Owner. Services are not permitted to cross lot lines for this or future Planning applications. The proposed new water service connection lateral may require a precast concrete valve chamber with three valves installed (instead of a tapping sleeve and valve) on the existing watermain, as per Halton Region’s Water and Wastewater Linear Design Manual. This will be confirmed at the time of Regional Services Permit application review. The Owner will receive all of the Region's suggested site servicing drawing revisions at the time of the Owner’s Regional Services Permit application.

1.7.2 The Owners agree that they will comply with the Region’s multi-unit servicing policy as set out in Report PPW01-96 and specifically Section 3.2 as follows: “The servicing requirements consist of individual water meters and individual water shut off valves for each unit with individual water laterals for each unit going directly to the unit from the watermain without passing in front of or behind or through any other units, unless the piping is located in a tunnel pipe corridor, common basement or parking garage”.

1.7.3 The Owner agrees to implement all waste management requirements included on the approved Waste Management Plan.

1.7.3.1. That, the Owner agrees to revise and update the Waste Management Plan (the “Plan”) prepared by Turner Fleischer Architects Inc. dated March 1, 2023, which forms part of the Site Plan application. The Plan will be updated to indicate how private waste collection for this development will be implemented. The Plan revisions and updates must include the following:

a. The Owner/Applicant is required to supply a letter of intent to the Region indicating that they will provide private waste collection for garbage, recycling and organics for the proposed development.

b. Confirmation is provided to the Region showing the following clause is inserted into the City of Burlington Site Plan Agreement:

“That the proposed development, as designed, does not comply with Region of Halton Development Design Guidelines for Source Separation of Solid Waste and as such is not eligible for Regional Waste Collection. Private waste collection will be provided.”

c. The Owner/Applicant must provide confirmation that all Agreements of Purchase and Sale and/or Lease, and any implementing Condominium Declaration (if applicable) shall include a warning clause as follows:

“Purchasers/Leasees are advised that this development is not eligible for Region of Halton waste collection services. This development will be serviced by private waste collection of garbage, recycling and green cart services.”

In the event that Purchase and Sale/Lease Agreements/Condo Declaration have already been signed, an amendment welcome package shall be provided and the change indicated.

2.0 POST Site Plan Approval Conditions

(To be included in Schedule “C” of the Site Plan Agreement)

2.1 Prior to issuance of a Building Permit for Shoring & Excavation, complete the following to the satisfaction of the Director of Engineering Services:

2.1.1 Submit for approval an updated Construction & Mobility Management Plan (CMMP), as per the City’s CMMP Policy, including the identification and illustration of tree protection as per the City’s Tree Protection and Preservation Specification SS12A. Tree protection must be installed to protect the two City trees in the Brant Street median.

2.1.2 Submit a precondition survey of surrounding structures and infrastructure. The City requires a copy of the precondition survey for any City owned structures and infrastructure. Please be advised that any other issues/claims due to vibration shall be a civil matter between the developer and the other party.

2.1.3 Submit updated written confirmation of study limits and locations for vibration monitoring during construction. The Owner acknowledges and further agrees that the City may, in its discretion, require the Owner to provide copies of vibration monitoring documentation in order to assess any damage, including the City’s structures and infrastructure.

2.1.4 Submit written confirmation of an Environmental Activity and Sector Registry (EASR) for short term de-watering during construction and a Permit to Take Water, obtained from the Ministry of Environment, Conservation and Parks, for permanent de-watering post- construction.

2.1.5 Obtain a Temporary Storm Sewer Discharge Permit for temporary dewatering, in accordance with the City’s Storm Sewer Discharge By-law, as amended.

2.1.6. Submit updated written confirmation from the Hydrogeologist which identifies adjacent structures, services and/or municipal infrastructure located within the zone of influence for groundwater dewatering and any potential settlement which may be considered unacceptable.

2.1.7 Submit updated groundwater dewatering monitoring and mitigation program for potential settlements.

2.1.8 Submit an updated letter of reliance for any documents that exclude the City from relying on them, extending reliance on the study to the City of Burlington and the Region of Halton.

2.1.9. Submit written confirmation from adjacent landowners that they have no objection to any proposed works and/or any temporary or permanent encroachments on their property.

2.1.10 Submit for approval details of erosion and siltation control measures.

2.1.11 Prior to the commencement of any works, implement erosion and siltation control measures and call 905-335-7600 Ext 7634 or email Annette.simpson@burlington.ca to arrange for an inspection of the installation. Erosion and siltation control shall remain in place and be maintained during all phases of construction.

2.1.12 Provide a copy of the liability insurance policy, min. $5,000,000.00, including naming the Corporation of the City of Burlington as additionally insured. Please note that the policy cannot contain language such as “will endeavor to mail 30 days cancellation notice”, rather it must state “will mail 30 days cancellation notice”.

2.1.13 Submit for approval an updated Geotechnical Investigation (or addendum letter) to address the following:

a. provide a typical detail for the underground structure, including but not limited to: shoring, tiebacks, foundation, waterproofing, subdrain, etc. to demonstrate all elements of foundation are within the subject property limits. Tie-backs may encroach into municipal lands with approval/encroachment agreement, tiebacks into private lands would require confirmation of a private agreement.

b. refer to Development Engineering second submission comments, dated April 11, 2023, for further details/requirements

2.1.14 Submit for approval an updated Hydrogeological Assessment addressing the following:

a. Provide confirmation that groundwater (to be discharged to the municipal storm sewer) meets the criteria (Table 1) of the City’s Municipal Storm Sewer Discharge By-law

b. Refer to Development Engineering first submission (site plan) comments dated April 11, 2023, for further details/requirements.

2.1.15 If applicable, submit an updated remedial action plan for the lands and any impacted offsite lands.

2.1.16 The Owner agrees that two (2) inspections of the completed landscape works are necessary for a full release of landscape securities. The first inspection occurring no sooner than one-year following installation, shall be to confirm the condition of the completed landscape works and, if acceptable, shall result in a 50% security release. The second inspection, occurring no sooner than one-year following the first inspection, shall be to confirm the condition of the completed landscape works and, if acceptable, shall result in the remaining security release.

2.1.17 Prior to the commencement of any works, install all tree protection measures (e.g., vertical and/or horizontal tree hoarding) in accordance with the City of Burlington Tree Protection and Preservation Specification No. SS12A, and as approved through the Construction and Mobility Management Plan (CMMP) and contact staff for inspection and approval at nick.pirzas@burlington.ca, or 905-335-7600 ext. 7722. All tree protection measures are to remain in place and be maintained for the duration of construction.

2.2 Prior to issuance of a Building Permit for Servicing, complete the following to the satisfaction of the Director of Engineering Services:

2.2.1 Submit for approval details of all outside lighting (both at grade and on upper level outdoor amenity areas, and within the municipal right of way) including, but not limited to, security, landscape and decorative lighting. Lighting shall conform to the City’s Outdoor Lighting Guidelines and Accessibility Design Standards, and the City’s Street Lighting Specifications and Design Manual.

2.2.2 Submit for approval revised Landscape drawings to address the following Civil related items:

a. Conformance to the Downtown Streetscape Guidelines.

b. Include utility information.

c. Include outdoor lighting information on upper amenity areas.

d. Include subdrain under curb and gutter on Detail 3.

e. Clearly note on the drawing(s) that the restoration of John Street is still to be determined.

f. Refer to first submission (site plan) Development Engineering comments dated April 11, 2023 for further details.

g. Updated landscape drawings are also to the satisfaction of the Director of Roads, Parks and Forestry.

2.2.3 Submit for approval a Utility Coordination Plan which indicates, but is not necessarily limited to, the following:

a. The location of all existing and proposed above ground utilities (i.e. street lights, hydro poles, transformers and pedestals, cable and Bell pedestals, hydrants, and gas meters) within the City’s road allowance that fronts the subject property and within the subject property limits,

b. The location and elevations of all existing and proposed underground utilities (i.e. road crossings, conduits and duct banks, gas mains, and hand hole boxes) within the City’s road allowance that fronts the subject property and within the subject property limits. Existing underground utility elevations are to be confirmed by daylighting,

c. The location of all existing and proposed trees within the City’s road allowance that front the subject property, are within 3 metres of any other shared property line or are within the subject property limits, and

d. All hydro is to be buried, as per the City Hydro Servicing Policy, all developments shall be serviced with buried hydro and other utilities.

2.2.4 Submit for approval certification by the Civil Consultants Professional Engineer that the approved Utility Coordination Plan has been reviewed and that the civil design does not conflict with any of the utility information.

2.2.5 Submit for approval details of all proposed streetscape work, including but not limited to, cross-sections, street lighting, street furniture and tree planting. Updated streetscape works are also to the satisfaction of the Director of Roads, Parks and Forestry.

2.2.6 Submit an existing condition video of the City's 825mm diameter storm sewer in Brant Street road allowance in accordance with OPSS 409 (conducted by a qualified operator). The limits of the existing conditions video shall incorporate the full run, from maintenance hole to maintenance hole. Please be advised if it determined that repairs are required to the City’s municipal storm sewer there will be no assurances that the repairs would be undertaken in a timeline to coordinate with the development. If the owner/developer requires the repairs to be undertaken sooner than the City’s timeline would allow, then the owner/developer shall be responsible to coordinate and tender the works in accordance wit the City of Burlington standards/guidelines/protocol and the owner/developer would be responsible to front all costs for the work. The City would reimburse costs associated with work that is deemed necessary by the City, with provision of copies of the contractors paid invoices, in a timeline to be determined by the City, as those costs would need to be included in a future City budget approved by council. No escalation would be paid should reimbursement occur in future calendar years. Costs to be reimbursed would include construction and inspection costs consistent with a City tendered capital project. A Municipal Consent Permit will be required prior to the commencement of any works on public lands.

2.2.7 Submit an updated written confirmation from the civil engineering onsultant that they have reviewed the architectural, landscape and engineering drawings, including but not limited to those for structural and mechanical works, and confirm that their civil design and recommendations have been incorporated into the architectural and engineering drawings and do not conflict with the provisions of the other drawings.

Prior to issuance of a Building Permit for servicing, complete the following to the satisfaction of the Region of Halton:

2.2.8 The Owner must complete and submit a Discharger Information Report as prescribed under Halton’s Sewer Discharge By-Law 2-03 prior to the issuance of a Regional Services Permit and prior to occupancy and discharge to the Regional wastewater system. The Owner may contact Industrial Waste by email at industrialwaste@halton.ca, for a copy of a blank Discharger Information Report. In this case, the blank report (in digital format) is being provided to the City of Burlington along with this letter, so that the City can forward it to the applicant/owner. The owner can obtain a copy of the Region's sanitary sewage discharge By-law No. 2-03 on the Region's website www.halton.ca (Search "By-law-2-03- Wastewater"), or by requesting a copy from the Region

2.2.9 The Owner submits a Ministry of Environment, Conservation and Parks acknowledged Record of Site Condition (RSC), and any supporting materials, to the satisfaction of the Region of Halton. For clarity, the submission of a RSC does not prevent the issuance of the Regional Services Permit and will be addressed prior to final approval of the municipal water and wastewater servicing connections for this site.

2.3 Prior to issuance of a Building Permit for Foundation, complete the following to the satisfaction of the Director of Engineering Services:

2.3.5 Submit updated Phase One and Phase Two Environmental Site Assessments for the lands and any impacted off-site lands.

2.3.6 Submit updated written confirmation from the Geotechnical Engineer that they have reviewed the architectural and engineering drawings, including but not limited to those for civil, structural and mechanical works, and confirm that their geotechnical recommendations have been incorporated into the architectural and engineering drawings.

2.3.7 Obtain a Groundwater Discharge Permit for permanent groundwater control, in accordance with the City’s Storm Sewer Discharge By-law, as amended.

2.3.8 Submit updated written confirmation from the Hydrogeologist that they have reviewed the architectural and engineering drawings, including but not limited to those for civil, structural and mechanical works, and confirm that their hydrogeological recommendations have been incorporated into the architectural and engineering drawings.

2.4 Prior to issuance of a Building Permit for Superstructure, complete the following to the satisfaction of the Director of Engineering Services:

2.4.5 Submit an updated Letter of Certification by a qualified acoustical consultant that the recommended noise control measures from the approved Noise Study have been incorporated into the builder’s plans.

2.5 Prior to issuance of Occupancy, complete the following to the satisfaction of the Director of Engineering Services:

2.5.5 Submit for approval details of John Street and Brant Street restoration as required as a result of the development and agree to complete John Street and Brant Street restoration before or within 6 months of occupancy, to the satisfaction of City staff.

ADVISORY NOTES:

Engineering Services and Roads, Parks and Forestry:

• Submit the disposal location of soil from excavation works, as required under City of Burlington Site Alteration By-Law 064-2014 as amended. PLEASE BE ADVISED: if the receiving site is within the limits of the City of Burlington, a Site Alteration Permit may be required from Engineering Services. All excavation works shall be in accordance with O. Reg. 406

• Prior to the issuance of a Building Permit for the below-grade foundation and drains, submit written agreement that two (2) inspections of the completed landscape works are necessary for a full release of landscape securities. The first inspection occurring no sooner than one-year following installation, shall be to confirm the condition of the completed landscape works and, if acceptable, shall result in a 50% security release. The second inspection, occurring no sooner than one-year following the first inspection, shall be to confirm the condition of the completed landscape works and, if acceptable, shall result in the remaining security release.

• Prior to release of securities, submit “as constructed” drawings of record for all landscaping works required by the Plans. The “as constructed” drawings will be certified by the landscape consultant

Halton Region:

• The Owner will be required to pay all applicable Regional Development Charges in accordance with the Region of Halton Development Charge By-law(s), as amended. Please visit our website at https://www.halton.ca/The-Region/Finance-and- Transparency/Financing-Growth/Development- Charges-Front-ending-Recovery-ayment to obtain the most current Development Charge and Front-ending Recovery Payment information, which is subject to change.