Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 19, 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

Description: To permit the development of over 907 new units

Reference Number: 505-06/15

Property Address: 5421, 5453, 5463 Dundas Street (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

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 (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

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 (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: April 30, 2024 and by June 6, 2024 In Writing

APPEARANCES:

Parties	Counsel
Evergreen Community (Burlington) Ltd.	Dennis Wood
City of Burlington	Andrea Peebles
Region of Halton	Kelly G. Yerxa
Conservation Halton	Konstantine Stavrakos

DECISION DELIVERED BY BITA M. RAJAEE AND interim ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1This Hearing in writing relates 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 (“Subject 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, a Hearing took place on February 9, 2024 (“February Hearing”) to consider and approve the ZBA and DPOS as addressed by the settlement agreement, if warranted. As confirmed in the Decision and Interim Order of this Tribunal, dated February 16, 2024 (“Tribunal’s February Decision”), the DPOS and ZBA were approved on an interim basis. The DPOS was approved subject to the finalization of the Conditions of Draft Plan Approval (“Conditions”). The ZBA was approved subject to the fulfillment of a certain condition. Subsequent to this February Hearing, Oakville withdrew its Party Status.

5The Parties advised at the February Hearing that they would like another Hearing to be scheduled, wherein the Tribunal can review the Conditions and attach them to the DPOS if appropriate. As such, this Hearing in writing was scheduled and took place.

6Specifically, in this Hearing, the Parties, on consent, sought an Order of the Tribunal for the following:

a. Minor technical changes to the DPOS approved on an interim basis in the Tribunal’s February Decision;

b. Minor technical revisions to the ZBA approved on an interim basis in the Tribunal’s February Decision; and

c. Approval of the Conditions to be attached to the DPOS.

HEARING

7In support of the relief sought from the Tribunal, the Parties relied on written testimony by Antonio De Franco and supplied an Affidavit sworn by him on March 15, 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 is qualified by the Tribunal, without objection, to provide expert opinion evidence in the field of Land Use Planning.

Technical Revisions to the Draft Plan of Subdivision

8Mr. De Franco explained that, while the Parties were engaged in a detailed review and finalization of the Conditions, which took place since the February Hearing, certain technical errors in the approved DPOS became evident. Specifically, the DPOS was revised since the Tribunal’s February Decision in the following ways:

a. Two technical errors were corrected, which relate specifically to how the existing and future road network were illustrated on the approved DPOS:

i. First, the lands along Tremaine Road that are owned by the Applicant, and that are intended to be conveyed to the Region to support the widening of Tremaine Road, were erroneously not shown on the approved DPOS. These lands are now shown in the revised DPOS and are labelled as Blocks 449 and 450. Of note, the Conditions that have been agreed to with the Region would require that these lands be conveyed to the Region to support the future widening of Tremaine Road.

ii. Second, the lands along Dundas Street, which were recently conveyed to the Region to support the widening of Dundas Street, were incorrectly shown on the approved DPOS. Since these lands have been conveyed and are no longer owned by the Applicant, they have been removed from the revised version of the DPOS.

b. Moreover, the Parties have agreed that the revised DPOS should include dimensions indicating the size of the daylight triangles at new street intersections. These daylight triangles were shown on the approved DPOS but were not dimensioned.

9Mr. De Franco opined that none of these technical revisions have a material impact on the approved DPOS or the overall community plan and its intended functions, as the land conveyances along Dundas Street and Tremaine Road have long been understood and planned for. The technical revisions are reasonable and prudent, have been agreed to by all Parties, and ensure that current land ownership is accurately reflected on the DPOS. Additionally, these technical revisions do not result in any changes to the planning evidence that Mr. De Franco previously provided in his Affidavit sworn on February 8, 2024 that was before the Tribunal (and this Member specifically) at the February Hearing.

Technical Revisions to the Zoning By-law Amendment

10Mr. De Franco explained that, since the Tribunal’s February Decision, approving the ZBA on an interim basis, City Staff have identified minor administrative refinements to the ZBA to ensure clarity and accuracy. Mr. De Franco opined that the revisions, as indicated in the revised ZBA, are minor and technical in nature. These administrative revisions are prudent to facilitate the implementation of the proposed development of the Subject Lands. As such, the planning evidence he provided to this Tribunal (and this Member specifically) at the February Hearing remains valid, and no changes are required.

11Of note, in the Tribunal’s February Decision, the Tribunal approved the ZBA in principle, contingent upon confirmation from the Region and the Applicant by April 30, 2024 of an allocation of at least nine single detached equivalent dwelling units from other lands in the Region to the Subject Lands (“Allocation”). However, the Applicant’s Counsel submitted that it is uncertain as to whether the Allocation will occur by April 30, 2024 as specified in the Order. As such, the Parties requested that the Tribunal extend the date for completion of the Allocation from April 30, 2024 to June 30, 2024.

Conditions of Draft Plan Approval

12Mr. De Franco explained that the Parties have engaged in discussions in order to prepare appropriate Conditions, which are intended to implement the DPOS (as revised in this proceeding) and ensure that certain planning matters and technical requirements have been addressed. Mr. De Franco generally organized the Conditions by approval authority and/or agency, as follows:

a. Region of Halton: The Conditions pertaining to the Region address a wide range of regional planning and technical matters, including servicing, transportation, phasing and allocation programs, environmental remediation, EIR/FSS report finalization, natural heritage matters, and legal requirements (pertaining to purchase and sale or lease agreements). Mr. De Franco stated that the Regional Conditions are appropriate and support the achievement of key Regional planning and infrastructure objectives.

b. Conservation Halton (“CH”): The Conditions provided by CH pertain to the elements of the subdivision that are within the jurisdiction of the conservation authority, including lands that are within CH’s regulated area, and pertain to matters such as grading, erosion and sediment control, stormwater facilities, creek alterations, EIR/FSS report finalization, monitoring, and warning clauses (pertaining to purchase and sale or lease agreements). Mr. De Franco stated that the CH Conditions support the long-term protection of the natural heritage system.

c. City of Burlington: Various divisions of the City suggested Conditions that address a broad range of matters within the City’s interests, including planning and urban design, cultural heritage, transportation services, engineering, parks and landscaping, and transit. Mr. De Franco stated that these Conditions achieve the key secondary planning policy objectives contained in OPA 107. The Conditions also provide clear direction with respect to the other plans and information that will be provided through the detailed subdivision design process to enable the registration and implementation of the subdivision.

d. External Agencies: Conditions were provided by various external agencies, including Hydro One, Canada Post, Enbridge/Union Gas, Rogers, the Halton District School Board, and the Halton Catholic School Board. Mr. De Franco stated that these conditions are mostly standard and address various matters of interest to these agencies, including the requirement for warning clauses at various points in the development/sales process. Moreover, and in particular, the Conditions address matters relating to the adequacy of utilities and municipal services and the availability of schools, as identified in section 51(24) of the Act.

13Mr. De Franco further explained that the Conditions identify a range of planning, technical, and legal matters that the Applicant will be required to address through the detailed subdivision design and construction process. These Conditions will also form the basis of the Subdivision Agreement that the Applicant will enter into with the City and Region.

14He provided planning evidence in support of the proposed Conditions and opined that they are reasonable, appropriate, and have regard for section 51 of the Act, which is the material section to consider when assessing these Conditions and whether they appropriately address matters relating to subdivision approval as found in section 51 of the Act. The Conditions facilitate the implementation of the DPOS (as proposed to be revised at this Hearing), ensuring that a range of matters are addressed through the detailed subdivision design and construction process.

15Moreover, he explained that the Conditions will enable the efficient delivery of various public infrastructures, including new streets, stormwater facilities, creeks, road widenings, transit stops, and public parks, in keeping with section 51(25) of the Act. The Conditions address the criteria identified in section 51(24) of the Act, as well as matters of provincial interest. In addition to securing lands that are required to be conveyed to the public authority, the Conditions address the conservation of natural resources and cultural heritage; the adequate provision of municipal servicing and infrastructure; the orderly development of the community; and environmental remediation requirements to ensure that the Subject Lands are suitable for development.

16In summary, Mr. De Franco testified that the Conditions are appropriate, have regard for section 51 of the Act, achieve good planning, and are in the public interest. Moreover, they effectively implement the DPOS as proposed to be revised at this Hearing.

Position of the Other Parties

17The City consents to the Applicant’s requested relief and the submissions provided. CH’s Counsel indicated that CH has no concerns with the instruments as put forward by the Applicant. The Region’s Counsel explained that the Region has no concerns with the revised planning instruments.

ANALYSIS AND FINDINGS

18The Tribunal accepts the uncontested opinion evidence of Mr. De Franco.

19With respect to the Conditions, the Tribunal finds that the suggested Conditions are appropriate and meet the legislative tests. Moreover, the Tribunal finds that the Conditions will effectively implement the DPOS.

20With respect to the revisions to the DPOS and the ZBA, the Tribunal made an Interim Order dated February 16, 2024, wherein the DPOS and ZBA were approved and appended to the Tribunal’s Interim Order as Attachment 1 and Attachment 2, respectively. The Tribunal withheld its Final Order pending the completion of certain items outlined in the Tribunal’s February Decision. The Tribunal accepts Mr. De Franco’s evidence that the requested revisions to the DPOS and ZBA are technical, minor, and prudent. Moreover, the planning evidence provided by Mr. De Franco with respect to these instruments is sustained despite these minor changes. As such, and upon review of the revisions to the DPOS and ZBA, the Tribunal finds that the revised DPOS and revised ZBA meet the required legislative tests, represent good planning, and are in the public interest. Additionally, the revised DPOS and revised ZBA meet the intent of the Tribunal’s Interim Order as outlined in the Tribunal’s February Decision. As such, the Tribunal finds that it is warranted for the DPOS and the ZBA to be revised as proposed.

ORDER

21THE TRIBUNAL ORDERS as follows:

a. The Tribunal’s Interim Order dated February 16, 2024, is hereby amended by replacing Attachment 1 to the Interim Order with the Revised Draft Plan of Subdivision prepared by MHBC dated March 13, 2024 (“Revised DPOS”), which is attached hereto as Attachment 1 to this Order.

b. The Revised DPOS is approved subject to the fulfillment of the Conditions of Draft Plan Approval (“Conditions”), as set out in Attachment 2 to this Order.

c. Pursuant to subsection 51(56.1) of the Planning Act, the City of Burlington shall have the authority to clear the Conditions and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the Conditions the Tribunal may be spoken to.

d. The Tribunal’s Interim Order dated February 16, 2024, is hereby amended by replacing Attachment 2 to the Interim Order with the Revised Zoning By-law Amendment, which is attached hereto as Attachment 3 to this Order, and approved in principle. The Tribunal’s Final Order will be withheld and is contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified in the Tribunal’s February 16, 2024 Interim Order, being the Region of Halton’s confirmation that a transfer of allocation of at least 9 single detached equivalent dwelling units from other lands in the Region to the subdivision lands has been approved (“Allocation”).

e. The Allocation is to be completed by June 30, 2024, by which time the Tribunal is to be advised with respect to the issuance of its Final Order, or the Parties are to provide the Tribunal with a status update in writing, specifically regarding the timing of the expected confirmation of the Allocation. If the Allocation has not occurred by June 30, 2024, the Tribunal may be spoken to regarding the appropriate next step. The Tribunal may, as necessary, arrange for the further attendance of the Applicant, the Region, and the City by Telephone Conference Call to determine (1) any additional timelines and a further deadline for the submission by the Region of the aforementioned confirmation or (2) any other remedy in regard to the absence of the confirmation as may be appropriate.

22The Tribunal can be spoken to if there are issues with the implementation of this Order.

23This Member will remain seized for the purposes of issuance of the Final Order respecting the Zoning By-law Amendment.

“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.

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