Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 06, 2024
CASE NO(S).: OLT-23-000116
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Camarro Development Inc.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment
Description: To permit the development of a 31-storey mixed-use building
Reference Number: 505-07/22
Property Address: 789-795 Brant Street
Municipality/UT: City of Burlington
OLT Case No.: OLT-23-000116
OLT Lead Case No.: OLT-23-000116
OLT Case Name: Camarro Development Inc. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Camarro Development Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To rezone the property to permit the development
Reference Number: 520-08/22
Property Address: 789-795 Brant Street
Municipality/UT: City of Burlington
OLT Case No.: OLT-23-000117
OLT Lead Case No.: OLT-23-000116
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended
Applicant and Appellant: Camarro Development Inc.
Subject: By-law 03-2023
Reference Number: Heritage BL 03-2023
Property Address: 795 Brant Street
Municipality/UT: City of Burlington
OLT Case No.: OLT-23-000168
OLT Lead Case No.: OLT-23-000116
PROCEEDING COMMENCED UNDER section 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended
Applicant and Appellant: Camarro Developments Inc.
Subject: Refusal to Grant Demolition Permit
Reference Number: Heritage BL 03-2023
Property Address: 795 Brant Street
Municipality/UT: City of Burlington
OLT Case No.: OLT-23-000623
OLT Lead Case No.: OLT-23-000116
Heard: April 25, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Camaro Development Inc. (“Applicant”) | Chantal deSereville |
| City of Burlington (“City”) | Denise Baker, Andrea Peebles |
| Regional Municipality of Halton (“Region”) | Kelly Yerxa |
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON 25 APRIL 2024 AND INTERIM ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The Tribunal convened a Settlement Hearing with respect to appeals brought by Camarro Development Inc. (“Applicant”) pursuant to section 22 (7) of the Planning Act (“Act”) for an Official Plan Amendment (“OPA”) and section 34 (11) for a Zoning By-law Amendment (“ZBLA”) of the Act, and section 29 (11) for a Heritage Designation and section 34.1(1), Refusal to Grant Demolition Permit, both of the Ontario Heritage Act (“OHA”).
2The Lands are Municipally known as 789-795 Brant Street (“Subject Land”). The Subject Property includes two parcels of land having a total area of 0.22 hectares (“ha”). The parcel at 795 Brant Street is approximately 0.13 ha with a frontage of approximately 28.35 metres (“m”) and a depth of approximately 76.7 m. The parcel at 789 Brant Street is approximately 0.089 ha with a frontage of approximately 22.2 m and a depth of approximately 43.1 m.
3The two-storey building located at 795 Brant Street was designated under Part IV of the OHA on February 2, 2023; the designation of this building was subsequently appealed to the Tribunal.
4The Applicant applied for a demolition permit March 8, 2023, for the two-storey building at 795 Brant Street, which was denied by City Council. This was subsequently appealed to the Tribunal, as well.
PROPOSED OFFICIAL PLAN AMENDMENT
5The proposed OPA provides for a site-specific exception to be added to s. 5.3.2 of the in-force City Official Plan (“OP”). The proposed OPA seeks to permit the development of the Subject Lands and a portion of the City’s right-of-way, with a 33-storey mixed-use building consisting of retail/service commercial uses at-grade and residential uses with a maximum permitted floor area ratio of 12.2:1 and a maximum density of 1408 units per net hectare.
PROPOSED ZONING BY-LAW AMENDMENT
6The proposed ZBLA seeks to rezone the Subject Lands and the portion of the City’s right-of-way from Mixed Use General (MXG) to Mixed Use General Site Specific 541 (H-MXG-541) and add site specific (“site-specific”) exceptions.
APPLICATIONS
7The initial application (“Initial Application”) consisted of a 31-storey mixed use building with a seven-storey (“-storey”) podium, with five levels of underground parking. The initial Application contained 485 square metres (“m2”) of retail at grade fronting Brant Street, and 356 residential apartment units.
8The Settlement Proposal provides for a 33-storey building, inclusive of the rooftop mechanical penthouse and rooftop outdoor amenity, and an 8-storey podium and 329 residential apartment units, 31 of those being 3-bedroom units.
9The heritage building located at 795 Brant Street is proposed to be relocated and a portion of the building to be incorporated into the proposed design, with accommodation for retail uses. There is a total of 480 square m2 of retail floor area proposed with access from Brant Street. The site access drive aisle remains provided from the Prospect Street frontage which provides access to the loading area and underground parking.
PROPOSED SETTLEMENT
10The Parties and the City (collectively, the “Parties”) have agreed to a comprehensive resolution of the appeal and wish to reflect their agreement herein, before the Tribunal for approval.
11The Parties request that the Tribunal allow the appeals in part and approve in principle the OPA (attached as SCHEDULE “A”) and ZBLA (attached as SCHEDULE “B”), and withhold its Final Order pending confirmation by the City of receipt of a Heritage Conservation Plan and a Heritage Permit application as well as confirmation that the Applicant has acquired title to the lands necessary for the relocation of the existing heritage dwelling and, in addition, that the appeals of the OHA be adjourned pending the Tribunal’s issuance of the Final Order on the OPA and ZBA.
WITNESS
12Evidence in support of the proposed Application was provided by Melinda MacRory, a land use planner. Ms. MacRory, on consent, was qualified to provide expert land use planning opinion evidence.
13The Tribunal marked the following documents as Exhibits:
Exhibit 1: Affidavit of Melinda MacRory dated April 12, 2024;
Exhibit 2: Draft OPA; and
Exhibit 3: Draft ZBLA.
EVIDENCE
Section 2 of the Planning Act
14According to Ms. MacRory, the development as proposed would make efficient use of existing transportation, sewage, and water infrastructure through appropriate intensification of the Subject Lands and develop in an orderly manner to support a safe and healthy, barrier-free development. The Subject Lands are located close to existing active transportation infrastructure and community amenities.
15According to Ms. MacRory, the Subject Lands are located within a Primary Growth Area and the Burlington GO Major Transit Station Area (MTSA) and Downtown Burlington Urban Growth Centre (“UGC”), which constitutes an appropriate location for growth and development, where the highest forms of intensification are to be directed.
16Ms. MacRory testified that the proposed redevelopment represents intensification of a currently underutilized site and is compatible with the surrounding area without any adverse impact, and the new building along Brant Street would provide for a high quality, safe, accessible, and vibrant streetscape while conserving the existing cultural heritage building and integrating it into the proposed development.
17In Ms. MacRory’s opinion, the Settlement Proposal and the implementing planning instruments have regard for matters of provincial interest.
Provincial Policy Statement (2020) (PPS)
18Ms. MacRory highlighted several sections of the PPS. She advised that, while her assessment relates to the Initial Application, the additional height and density provided with the revised design further optimize the redevelopment of the site in its context without adverse impacts, and the same justification applies to the revised plans as well as the implementing OP and ZBLA.
19Ms. MacRory testified that the proposed development is well-designed, at an appropriate height and density and with appropriate development standards, and in the built-up area served by existing infrastructure and transit. The proposed redevelopment makes efficient use of existing and planned infrastructure and public facilities and provides for a mix of uses – including new housing, contributing to more housing options.
20In Ms. MacRory’s opinion, the proposed redevelopment and the implementing planning instruments are consistent with the PPS.
Growth Plan for the Greater Golden Horseshoe (2020) (“Growth Plan”)
21Ms. MacRory testified that the Subject Lands are located within the City’s built boundary and are within the UGC, where significant population and employment growth is to be directed. They are also in a Strategic Growth Area associated with a MTSA.
22According to Ms. MacRory, the proposed redevelopment meets the policies in s. 2.2 of the Growth Plan that address growth within settlement and built-up urban areas and are within MTSAs and the UGC.
23Ms. MacRory advised that the proposal addresses housing, cultural heritage resources, and integrates retail and service commercial uses, which provides for an appropriate density, height and massing in an area well-served by existing transit, amenities and services, and which optimizes the use of land and infrastructure.
24In Ms. MacRory’s opinion, the Settlement Proposal and the implementing planning instruments conform to the applicable policies of the Growth Plan.
Region of Halton Official Plan (2022) (ROP)
25Ms. MacRory testified within the ROP that was in place at the time of the Initial Application and within the in-force ROP approved in November of 2022, the Subject Lands are in effect located within the Urban Area designation. The Subject Lands are also located within the boundary of the Downtown MTSA and UGC.
26Ms. MacRory highlighted several sections of the ROP in regard to UGC, MTSA, housing, and Cultural Heritage Resources. Ms. MacRory advised that all of these policies have been addressed through appropriate intensification, by increasing the supply of housing with 329 new residential dwelling units in a transit-supportive development area, and through the protection, preservation and relocation of cultural heritage resources.
27According to Ms. MacRory, the Settlement Proposal represents an intensification of the Subject Lands that supports sustainable, cost-effective and transit supportive growth within a MTSA/UGC. The mix of residential unit types and sizes will increase housing variety and support local employment and retail uses.
28In Ms. MacRory’s opinion, the Settlement Proposal meets the applicable goals, objectives and policies and conforms to the ROP.
City of Burlington Official Plan 1997 (In-Force) (OP)
29Ms. MacRory advised that the Planning Justification Report assesses the vision and guiding principles of the OP and policies related to growth management, cultural heritage resources, transportation, and urban design.
30Ms. MacRory testified that the Settlement Proposal aligns with the City’s land use, providing for an intensified form of development on an underutilized site within a mixed-use centre along Brant Street in the UGC.
31Ms. MacRory highlighted several policies of the OP Compatibility, Mixed-Use Corridor, Transportation, and Cultural Heritage Resources. Ms. MacRory advised that the proposed development addresses all of these polices in that it is transit-supportive, acknowledges long-term redevelopment vision for the area and will provide for an intensified, compact mixed-use development within the UGC.
32Additionally, in the opinion of Ms. MacRory, the Settlement Proposal implements transportation policies by providing for a transit-supportive environment and the Traffic Impact Study demonstrates that the proposed development will not result in negative traffic-related impacts. Further, the reduced parking rate and added bicycle parking incorporated into the proposal aligns with the transportation strategies encouraged by the City OP. The Cultural Heritage Resources preserve the existing heritage building located at 795 Brant Street into the proposed design.
33Ms. MacRory advised that the site-specific OPA required to facilitate the increase in permitted height and density is appropriate given the Subject Lands’ location within the Downtown Burlington UGC.
34In Ms. MacRory’s opinion, the Settlement Proposal through the proposed OPA and ZBLA conforms to the policies of the City OP.
New City of Burlington Official Plan (Under Appeal)
35Ms. MacRory informed the Tribunal that, in addition to the in-force OP, City Council approved Burlington’s new Official Plan (“New OP”) in October of 2020. The New OP was approved with modifications by the Region on November 30, 2020. The New OP was appealed by a number of landowners, including the Owner, and there is a site-specific appeal as it relates to the Subject Lands, and therefore it is not in force and effect as it relates to the Subject Lands.
36Ms. MacRory advised that, while the focus of her assessment of the proposed development is and was in the Planning Justification Report related to the in-effect OP, she has conducted the following assessment of the New OP as evolving informative policy.
37In summary, Ms. MacRory testified that, overall, the Settlement Proposal has regard for the approved but not in-force policies, as it directs a high-density, mixed-use development to the Downtown Burlington UGC. The Settlement Proposal is compact in design, pedestrian-friendly, and well-connected to public transportation. The proposed mixed-use development will support the provision of higher-density residential development while also including at-grade retail to provide an opportunity for a range of small-scale retail and service commercial uses to serve the proposed development and surrounding area.
City of Burlington Comprehensive Zoning By-law 2020 (ZBL)
38Within the ZBL, the Subject Lands are zoned Mixed-Use General (MXG). A site-specific exception to the existing Mixed-Use General zone is being sought for the Subject Lands.
39The MXG zone provisions permit mixed-use residential apartment dwellings to a maximum height of 6 storeys. As such, a MXG zone with special provisions is being sought to address a number of zoning provisions needed to implement the proposed redevelopment.
40The Table below outlines the site-specific provisions sought in the proposed Zoning By-law Amendment and justification for the site-specific provisions.
| Zone Exception | Rationale |
|---|---|
| Land Uses – 329 residential units and 480 square metres of non-residential floor area | These provisions clearly set out the mix of uses permitted, which are in line with the intended direction for MTSAs. |
| Height 33 storeys and 108 metres inclusive of the mechanical penthouse and rooftop amenity | The Subject Lands are located within an UGC/MTSA where the highest intensity of development should occur in Burlington. The proposed height will allow for the optimization of the Subject Lands and provide for a variety of housing units and sizes. |
| Increased Floor Area Ratio 12.2:1 Maximum Density 1408 units/ha | The Subject Lands are located within an UGC/MTSA where the highest intensity of development should occur in Burlington. This increase in floor area ratio and maximum density will allow for the optimization of the Subject Lands and provide for a variety of house types and sizes with appropriate transition and design. |
| Yards Yard abutting Brant Street i) Floors 1-7: 4.6 m ii) Floors 8-33: 7.6 m iii) Heritage Building: 0.2 m Yard abutting Prospect Street i) Floors 1-7: 2 m ii) Floors 8-33: 3.2 m Yard Abutting a Residential Zone (east lot line) i) Floors 1-7: 1.2 m ii) Floors 8-33: 8.7 m Side Yard (south lot line) i) Floor 1: 0.5 m ii) Floors 2-7: 2.9 m iii) Floors 8-33: 12.5 m Yard Abutting a Hypotenuse of a Daylight Triangle i) Floor 1-7: 2 m ii) Floors 8-33: 4.6 m iii) Heritage Building: 1.8 m | The setbacks and stepbacks proposed provide appropriate transition and buffer to surrounding properties and appropriate tower separation distances from surrounding properties. |
| Parking Structure Setbacks 0.8 m to all lot lines | This provision is required to accommodate the underground parking structure. The setbacks still maintain an appropriate area for landscaping. |
| Minimum Number of 3-beroom units 31 units | This provision will ensure the family- sized units are implemented as per the Settlement Proposal. |
| Reduced Parking Combined Parking Ratio of 0.78 parking spaces/dwelling unit | The Subject Lands are located within an UGC/MTSA in an area that is evolving as a highly urbanized and connected to the public transportation system. The reduced parking with the Initial Application was justified through a Parking Justification Study prepared by C.F. Crozier and Associates and the parking ratio is maintained with the Settlement Proposal to encourage reduced automobile dependency and increased use of active transportation. |
| Reduced Parking Stall Sizes | This provision is required to address the reduced parking stall sizes needed to ensure efficiency of the underground parking design. The reduced parking stall sizes were justified through the Parking Justification Study prepared by C.F. Crozier and Associates. |
| Bicycle Parking Long-term bicycle parking: 170 bicycle spaces Short-term bicycle parking: 16 bicycle spaces | This provision will ensure the implementation of bicycle parking to promote active transportation. |
| Revisions to Bicycle Parking Size Standard | This provision will allow for stacked bicycle parking which is not currently identified in the City of Burlington Zoning By-law to allow for efficiency in the underground parking design. |
| Amenity Areas 13.3 sq. m./unit | A minimum of 13.3 square metres of amenity area per unit is provided through indoor and outdoor amenity space and balconies which is appropriate in the context of the Urban Growth Centre and in close proximity to area parks and other amenities and services. |
| Landscape Area | A reduced landscape area of 2 m is being sought along Prospect Street. This is a result of the reduced setback proposed from the edge of the building to the right-of-way at 2 metres to create a pedestrian-friendly and animated streetscape. |
| Landscape Buffer | A reduced landscape buffer of 1.2 m to the rear lot line is proposed which provides sufficient area for a fence and landscaping to provide a buffer to the existing high density residential property to the east. |
| Landscape Area Encroachments | This provision will permit a number of functional site and structural requirements as needed without impact to the overall landscape areas. |
| Minimum floor area for retail/service commercial use | A minimum of 480 square metres of retail/service commercial gross floor area will ensure adequate at grade retail and service commercial uses to serve the residents of the development and those in the surrounding community. |
41In Ms. MacRory’s opinion, the site-specific provisions in the proposed ZBLA are appropriate for the redevelopment of the Subject Lands and in conformity with the applicable policy framework and generally address the built-form design guidelines.
Urban Design Guidelines – Tall Building Design Guidelines (2017)
42Ms. MacRory highlighted the City’s Tall Building Design Guidelines (“Guidelines”), which apply to the proposed mixed-use development and provide direction for podium design, site design, open space and streetscaping, tower design and rooftop design.
43Ms. MacRory highlighted several sections of the Guidelines in regard to podium design and placement and that the Guidelines provide for direction for the tower portion of the buildings, including tower separation distance, stepbacks and floor plate sizes.
44According to Ms. MacRory, all of these guidelines are addressed in the development proposal, in that the podium is located and oriented appropriately to frame the streets and provide for enhanced streetscapes and adequate landscaping along Brant Street and Prospect Street. The Settlement Proposal also provides a 750 m2 floor plate size, and a step back of 3 m is proposed above the podium to the tower in accordance with the Guidelines.
45In Ms. MacRory’s opinion, the Settlement Proposal incorporates appropriate massing allowing for built-form compatibility with the surrounding context, and promotes visual connectivity throughout the skyline. High-quality architectural design is proposed to ensure that the Settlement Proposal contributes to the physical characteristics of the community.
Implementation
46Ms. MacRory advised that, as part of the Settlement Proposal, the proposed OPA and ZBA currently include the portion of the City’s right-of-way lands which has yet to be acquired by the Owner.
47Ms. MacRory recommended that the Tribunal withhold its Final Order subject to the completion of the required Municipal process to finalize the land conveyance.
Disposition
48In the absence of any planning evidence to the contrary, the Tribunal finds and accepts the land use planning evidence and expert opinion provided by Ms. MacRory, that the proposed OPA and ZBLA has regard for the matters of Provincial Interest under the Act, represents good planning and is in the Public Interest, is consistent with the policies of the PPS, conforms with the Growth Plan, conforms to the ROP and City OP, and meets the City’s Urban Design Guidelines.
49The Tribunal acknowledges the cooperation between the Parties in having reached a Settlement.
INTERIM ORDER
50THE TRIBUNAL ORDERS that the appeals filed by Camarro Development Inc. are allowed in part;
THE TRIBUNAL FURTHER ORDERS that the amendment to the City of Burlington Official Plan as set out in Schedule “A” to this Order is approved in principle;
AND THE TRIBUNAL FURTHER ORDERS that the amendment to the City of Burlington Zoning By-law as set out in Schedule “B” to this Order is approved in principle;
AND THE TRIBUNAL FURTHER ORDERS that the final Order on the Official Plan Amendment and the Zoning By-law Amendment will be withheld until:
(a) the City’s confirms to the Tribunal that it is in receipt of a Heritage Conservation Plan and a heritage permit application under section 33 of the Ontario Heritage Act, R.S.O. 1990; and
(b) the City confirms that the Applicant has acquired title to the lands necessary for the relocation of the existing heritage dwelling on the property.
AND THE TRIBUNAL FURTHER ORDERS the appeal of Heritage Designation By-law No. 03-2023 under section 29 of the Ontario Heritage Act R.S.O. 1990, and the appeal of the City’s refusal to grant the heritage demolition permit under section 34 of the Ontario Heritage Act R.S.O. 1990 are hereby adjourned pending the Tribunal’s issuance of the Final Order on the OPA and ZBA, and the submission by the City and the Applicant to the Tribunal of a revised Heritage Designation By-law;
AND THE TRIBUNAL FURTHER ORDERS that the Tribunal Member is seized and may be spoken to in the event matters arise in connection with the implementation of this Order.
“Eric S. Crowe”
ERIC S. CROWE
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.