1989 Appleby Latch Limited v. Burlington (City), 2024 CanLII 7615

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 30, 2024

CASE NO(S).: OLT-23-000070

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 1989 Appleby Latch Limited

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the construction of two twenty-storey high-rise residential condominium buildings connected by a six-storey podium with at grade retail

Reference Number: 505-05/22

Property Address: 1989 Appleby Line

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-23-000070

OLT Lead Case No.: OLT-23-000070

OLT Case Name: 1989 Appleby Latch Limited 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: 1989 Appleby Latch Limited

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the construction of two twenty-storey high-rise residential condominium buildings connected by a six-storey podium with at grade retail

Reference Number: 520-06/22

Property Address: 1989 Appleby Line

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-23-000071

OLT Lead Case No.: OLT-23-000070

Heard: September 12, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

1989 Appleby Latch Limited

Jason Park

City of Burlington

Andrea Peebles

Regional Municipality of Halton (“Region”)

Brittany Maione

Upper Appleby Developments Inc. (“UAD”)

Sarah Turney (“in absentia”)

DECISION DELIVERED BY T.F. NG ON SEPTEMBER 12, 2023 AND ORDER OF THE TRIBUNAL

Link to Interim Order

1This matter was scheduled for one day as a settlement hearing. 1989 Appleby Latch Limited (“Applicant/Appellant”) made applications to the City of Burlington (“City”) for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) pursuant to the Planning Act (“Act”) to permit the construction of two twenty-storey high-rise residential condominium buildings connected by a six-storey podium with at-grade retail on property municipally known as 1989 Appleby Line (“subject property/subject site”).

2City Council failed to make a decision with respect to the applications, and the Applicant appealed. The Appellant and the City had settled the matter, while the added parties, the Region and UAD, had consented to the revised applications of the proposed settlement (“proposed settlement/settlement proposal”).

3The City’s Solicitor, Ms. Peebles, and the Region’s Solicitor, Ms. Maione, attended in support of the proposed settlement. Appellant’s counsel, Mr. Park, informed the Tribunal that Ms. Turney, in absentia, counsel for UAD, expressed full support for the settlement proposal.

4The Affidavit of Gerry Tchisler, the Appellant’s planner, was marked as Exhibit 3. The Document Book was marked as Exhibit 1, and the Visual Evidence was marked as Exhibit 2.

5Counsel for the Appellant described the settlement briefly and stated that the final order is to be withheld subject to the fulfillment of conditions that were to be confirmed by the City’s solicitor.

6There were a number of participants who were granted status previously. Their main concerns, as expressed in the submitted statements, were appropriately addressed by Mr. Tchisler in his affidavit and in his oral testimony. Mr. Tchisler testified in support of the proposed settlement and was qualified to give expert opinion evidence in land use planning matters.

SITE AND AREA CONTEXT

7The subject site is approximately 6,009 square metres in area, with approximately 69 metres of frontage along Appleby Line. The subject property is adjacent to a hydro corridor to the northeast, beyond which lies Upper Middle Road.

8Currently, the subject site contains a defunct one-storey convenience store, a gas station with a car wash facility, surface parking, and a small outdoor seating area.

9There is an easement for a natural gas pipeline along the north portion of the subject property, which is subject to an agreement between the Appellant and Enbridge Pipelines Inc. Right-in and right-out driveway accesses are located on both Appleby Line and Upper Middle Road (via the hydro corridor).

10Land uses immediately surrounding the subject property include:

NORTH: North of the subject property is the Orchard Neighbourhood, which consists of residential uses, schools, and a number of smaller residential parks. Immediately north of Upper Middle Road is a low-rise apartment complex and a townhouse development.

EAST: East and south of the subject property is the Sheldon Creek neighbourhood, characterized by semi-detached dwellings, street townhouses, and four apartment buildings immediately east of the subject property. In the middle of this residential neighbourhood is Desjardines Park, with Lampman Park further south.

SOUTH: Immediately south of the subject property are smaller commercial plazas with access from Appleby Line and Ironstone Drive. Further south along Ironstone Drive towards Corporate Drive are some employment and industrial uses.

WEST: A large commercial plaza consisting of large-format retail uses, restaurants, a grocery store, and smaller retail units is located to the west of the subject property. Further west is Millcroft Park and a residential neighbourhood consisting primarily of single-detached residential uses.

11The subject site is located at the major intersection of Appleby Line and Upper Middle Road, on the periphery of Sheldon Creek within the Uptown Urban Centre. In 1994, the City designated this area with the goal of creating a secondary urban centre to complement Downtown Burlington. The intersection of Upper Middle Road and Appleby Line has experienced significant redevelopment since the 1990s as part of Uptown Burlington, with the introduction of adjacent residential towers and commercial plazas in the past 20 years.

12Currently, the Sheldon Creek neighbourhood is characterized by a mix of semi-detached dwellings, street townhouses, as well as apartment buildings that are immediately adjacent to the subject property at sixteen, eleven, and six-storeys in height.

13Commercial uses, including grocery stores, restaurants, and retail shopping, are located within walking distance along Appleby Line and Upper Middle Road. Employment uses are located along Corporate Drive and Mainway to the south, east, and west. The subject property is located close to a number of community facilities, parks, and recreation facilities.

14The subject site is serviced by two existing bus routes. Route 11 (Sutton-Alton) has a service frequency of 30 minutes and operates between Appleby GO Station and Dundas Street at Hwy-407 Park and Ride. Route 12 (Upper Middle) generally runs every thirty minutes, with more frequent services in the afternoon. Route 12 operates between Burlington GO Station and the SmartCentres Burlington North shopping plaza. Services east of Route 11 are operated by Oakville Transit services.

15While not currently in force and effect, Schedule B-2 – Growth Framework and Long-Term Frequent Transit Corridors of the Council-Adopted Official Plan identifies Appleby Line as a Major Transit Station Area Secondary Connector and a Frequent Transit Corridor. Upper Middle Road is identified as a Transit Support Corridor adjacent to the subject property and as a Candidate Frequent Transit Corridor towards the west past Country Club Drive. Map 3 – Functional Plan of Major Transportation Facilities in the Region. The Official Plan also identifies Appleby Line as a Higher-Order Transit Corridor.

THE PROPOSAL

16The settlement proposal that is before the Tribunal consists of a-twenty-two-storey (approximately 71.3 metre) tower and a seventeen-storey (approximately 56.3 metre) tower (plus mechanical penthouses and associated equipment) connected by a six-storey podium, containing a total of 462 dwelling units and approximately 632 square metres of commercial area at grade. The proposal has a density of approximately 820 units per hectare and a floor area ratio of 6.12:1.

17The settlement proposal contains a total of 516 vehicular parking spaces (1.12 per dwelling unit), which includes 47 spaces that are shared between visitors and the commercial units. Vehicular parking is located predominantly below grade, including some surface parking. The parking count also includes spaces designated for small cars (2.75 x 5.2 metres). The Appellant reduced the number of small car parking spaces down to 16 spaces. The proposal also includes 304 (0.66 per unit) parking spaces located at grade and in the underground parking structure. The below-grade parking structure has approximate setbacks of 0.8 metres from the Appleby Line, 18.28 metres from the northerly lot line, and 2.7 metres from the easterly and southerly lot lines.

18Along Appleby Line, the ground floor is set back 2 metres from the front lot line, with the storeys above having a varied setback between 0.3 metres and 3.65 metres, bringing the building close to the road edge while allowing some space between the ground floor and pedestrian realm. Storeys two to six contain a bank of balconies that protrude from the façade up to the lot line, creating a distinct visual separation between the podium and tower components.

19On the north side, the building podium maintains a 20.1-metre setback at ground level and a 19-metre setback for storeys two to six from the hydro corridor. A generous setback is required on the north side due to an existing Enbridge pipeline easement located within this portion of the property. To utilize this area efficiently, a visitor and commercial surface parking area are located within this setback. The tower portions above the six-storey podium are setback 21.4 metres from the hydro corridor.

20On the north side, the ground level provides setbacks of approximately 20.9 metres, which allows for the location of a row of surface parking, a drive aisle, and a walkway. Floors 2 to 6 are set back 19 metres. The podium maintains a 11.1-metre setback from the easterly lot line. The easterly tower maintains a 12.4-metre setback from the lot line (16.7 metres from 1980 Imperial Way).

21On the south side, the ground floor has a varied setback with a minimum dimension of 15 metres. Above the ground floor, the building is setback approximately 12.5 metres from the southerly lot line within a second-floor amenity area terrace that comes within 3 metres of the southerly lot line for approximately half the length of that lot line.

22The towers are positioned with a 25-metre separation distance, and each has a floor plate of approximately 750 square metres.

23The main entrance and lobby of the building are located adjacent to Appleby Line, with a secondary entrance located along the east façade of the building. Both entrances are served by convenient pick-up and drop-off areas as well as short-term bicycle parking, which is located in five areas on the site. The ground floor of the building is predominantly dedicated to a commercial floor area, with potential future entrances fronting directly onto Appleby Line and the surface parking area on the north side of the building. The loading, waste pick-up, and garage ramp areas are located such that these areas are screened from street view by the building itself from both Appleby Line and Upper Middle Road.

24The building includes a total of 1,916 square metres of common amenity areas (4.14 square metres per unit), which consists of 816 square metres of indoor amenity area and 1,107 square metres of outdoor amenity area. The building also includes private balconies, which would result in a total private and common amenity area rate of approximately 9.14 square metres per unit. Common amenity areas are located throughout the building, including indoor and outdoor lounge areas at the Appleby Line main lobby, a large roof-top terrace at the second level, which includes an adjoining indoor amenity area in the west tower, and a second roof-top terrace on the seventh level, with adjoining indoor amenity areas in both the east and west towers.

25The building is surrounded by landscape strips approximately 3 metres wide along the easterly and southerly lot lines where the subject property interfaces with existing apartment buildings, as well as a 0.8-metre-wide landscape strip along the northerly lot line abutting the hydro corridor for the purposes of screening the surface parking area.

26The subject property will continue to have right-in and right-out driveway access to Appleby Line and Upper Middle Road, with the Upper Middle Road driveway shifted further to the east, away from the intersection.

27The revised OPA to implement the settlement proposal increases the maximum permitted floor area ratio from 2.5:1 to 6.2:1 and increases the maximum permitted height from 35 metres to 75 metres (excluding mechanical penthouses).

28The revised ZBA includes various modifications to the originally proposed ZBA to reflect the revised building heights, parking rates, and other modifications required to implement the modified building arrangement that was reached through the settlement discussions. A draft ZBA to implement the settlement proposal continues to be discussed with the City.

29The settlement proposal will be implemented through the approval of an OPA and a ZBA. The draft OPA and the draft ZBA amending City Zoning By-law No. 2020 are included as Tabs “C” and “D” in Exhibit 3.

30The revised plans made key changes to the original proposal. The settlement proposal includes the provision of appropriate Transportation Demand Management (“TDM”) measures such as information on transportation options, separate parking lots for sale, preloaded Presto cards for residents who do not purchase parking lots and parking spaces for bicycles, etc.

31The Appellant also provides financial security in the amount of $150,000.00 to the City to implement and monitor traffic calming in the Sheldon Creek neighbourhood.

SECTION 2 OF THE PLANNING ACT

32Mr. Tchisler referred to section 2 of the Act, which sets out matters of provincial interest for which planning authorities shall have regard.

33He explained that the proposal represents orderly development in an area designated for intensification as part of the City’s Uptown Urban Centre. The subject site is located within the built boundary and will make efficient use of the existing municipal services and public transit services in the area, which contributes to the financial and economic well-being of the municipality. The building will provide a range of unit sizes and diversify the housing options available in the area. The settlement proposal embodies a high-quality design that responds to its surroundings and will serve as a focal point for the Burlington Uptown Urban Centre. The design has also been refined using feedback received from the public, the Burlington Urban Design Review Panel, and through settlement discussions with the City. The settlement proposal also contributes to enhancing the environmental streetscape by providing landscaping around the perimeter of the subject property, including more significant planting along Appleby Line. The proposed increase in density will support existing public transit as well as the future higher-order transit planned for Appleby Line. The proposed sustainability program will also allow the development to contribute to reducing greenhouse gases and addressing the impacts of climate change.

34The Tribunal finds that the proposed settlement has regard for matters of Provincial Interest, in particular the orderly development of safe and healthy communities (s.2(h)); the adequate provision of a full range of housing (s.2(j)); the appropriate location of growth and development (s.2(p)); and the promotion of development that is designed to be sustainable, to support public transit, and to be oriented to pedestrians (s.2(q)).

PROVINCIAL POLICY STATEMENT 2020 (“PPS”)

35In Mr. Tchisler’s opinion, the settlement proposal is consistent with the PPS, especially the policies relating to residential intensification, transit-supportive development, and the efficient use of land, infrastructure, and facilities.

36Section 1.4.3 of the PPS provides housing policies, which require an appropriate range and mix of housing types and densities to meet the demands of current and future residents. These policies also encourage the efficient use of land and promote densities that support active transportation and transit by establishing development standards for residential intensification, which minimizes the cost of housing. These development standards include parking standards.

37Sections 1.6.7.2 and 1.6.7.4 require efficient use of existing and planned transportation infrastructure, including through the use of TDM strategies, and promote a land use pattern, density, and mix of uses that minimize the length and number of vehicle trips and support current and future use of transit.

38Mr. Tchisler opined that the settlement proposal is consistent with the PPS and represents an appropriate amount of intensification in the form of a compact and land-efficient, high-rise built form on a site that is within the City’s settlement area, within a strategic growth area, along existing transit routes, and along a planned frequent transit route.

39The subject property has been designed to address matters of compatibility and minimize impacts. The redevelopment is supported by technical studies that address functional servicing, noise, shadow impacts, tree removal and replacement, as well as traffic. The conclusions of the original studies in support of the original design continue to apply to the settlement proposal and remain supportive of the development.

40The revised plans respond to the need for increased market-based housing supply and contribute to the intensification targets of the Region and the City. The mix of unit sizes proposed will provide for a more attainable form of housing both within the City and within the immediate neighbourhood and appropriately add to the range and mix of housing options available in the area.

41The proposal will also support existing transit services, including the implementation of the planned frequent transit route along the Appleby Line by way of increasing residential density and growing the ridership pool within walking distance of the route.

42The Tribunal agrees with Mr. Tchisler that the settlement proposal provides appropriate residential intensification to meet residents’ needs in a location with existing infrastructure at a density that will efficiently use land, resources, and facilities. The proposed settlement will encourage a transit-supportive development comprising a range of residential units that prioritize intensification adjacent to a planned frequent transit route area. The Tribunal finds that the proposal is consistent with the PPS.

GROWTH PLAN

43Mr. Tchisler stated that the settlement proposal conforms with the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”), in particular, Policy 2.2.1(2)(c), which provides that, within settlement areas, growth will be focused in delineated built-up areas, strategic growth areas, locations with existing or planned transit (with a priority on higher-order transit where it exists or is planned), and areas with existing or planned public service facilities.

44The Growth Plan also contains policies that contribute to complete communities by providing a mix of housing options that are of high quality and compactly built form and contribute to the expansion of convenient access to a range of transportation options (section 2.2.1.4).

45Direction on intensification within Delineated Built-Up Areas is provided in sections 2.2.2.1, 2.2.2.2, and 2.2.2.4. The policies require that the City accommodate a minimum of 50 percent of all new growth within the delineated built-up area.

46Mr. Tchisler explained that the Growth Plan also requires a range and mix of housing options and densities to be provided through intensification to ensure a diversified housing stock (section 2.2.6.2).

47The settlement proposal represents an appropriate amount of intensification that will contribute to the achievement of the City’s and Region’s intensification targets while providing the range and mix of housing intended by the Growth Plan. The added density will contribute to transit ridership, support existing public transit, and facilitate the implementation of planned frequent transit.

48The settlement proposal will assist in meeting the Growth Plan’s objectives for prioritized growth within strategic growth areas and along planned frequent transit routes in a form and design that is compatible with the surrounding area. The proposal optimizes the use of the subject property and adds much-needed market-based housing supply to the area, all contributing to a complete community that is well served by existing transit, parks, schools, community facilities, commercial areas, and nearby employment areas.

49The Tribunal finds that the proposed revised Plans will provide a compact development in an intended growth area that contributes to the efficient use of land and infrastructure. The proposed settlement, with the mixed range of dwelling units and retail at grade, will meet the objectives of the Growth Plan density target. The proposal supports the achievement of complete communities (s.2.2.6(3)). The Tribunal finds that the settlement proposal conforms to the Growth Plan.

REGION OF HALTON OFFICIAL PLAN (“ROP”)

50The Region of Halton Official Plan (“ROP”) designates the subject property as an Urban Area. The lands are also within a Strategic Growth Area (“SGA”) as they are part of a Secondary Regional Node and along a Regional Intensification Corridor (Appleby Line).

51Mr. Tchisler stated that the objectives for Urban Areas are identified in Section 72, which include promoting growth that is compact and supports transit use, directing growth to SGAs, and facilitating intensification and increased densities.

52Mr. Tchisler stated that the objectives for a SGA are identified in section 79 and include providing an urban form that is complementary to existing urban areas, uses space economically, and reduces automobile travel. The objectives also include promoting cost-efficient and innovative urban design, attracting a significant portion of population growth, supporting public transit and active transportation, achieving higher densities than surrounding areas, and providing appropriate built-form transitions.

53Policies and objectives for Regional Nodes include providing a range and mix of transit-supportive uses (s. 82(3)) and directing higher densities and mixed use to Regional Nodes in accordance with the urban structure hierarchy and existing and planned levels of transit service (s. 82.2).

54Mr. Tchisler emphasized, and the Tribunal agrees, that the settlement proposal conforms with the Region’s policies for urban structure and SGAs and contributes to the Region’s intensification targets. The proposal will be fully serviced through existing municipal services and will be supported by existing transit and planned frequent transit. The Tribunal finds that the settlement proposal is in conformity with the policies of the ROP and further implements the Region’s objectives for intensification within SGAs.

CITY OFFICIAL PLAN

55In Mr. Tchisler’s opinion, the settlement proposal conforms with the in-force OP.

56The OP for the Burlington Planning Area, was adopted by City Council on July 11, 1994, and ultimately approved by the Ontario Municipal Board on October 24, 2008. The OP has undergone a number of amendments, with the most recent consolidation being in December 2019.

57The City adopted a new Official Plan (“Adopted OP”) in April 2018. Following Regional revisions, the Adopted OP was approved by the Region on November 30, 2020. The Adopted OP was appealed and thus currently is not in-force and therefore is not determinative, but it is relevant for the purposes of the settlement proposal as it is part of the emerging policy context. Mr. Tchisler reviewed the Adopted OP, and he found that the settlement proposal will conform to the emerging policy context of the adopted OP. The Tribunal accepts his opinion and his focus on the in-force OP in its evaluation of the proposed settlement.

58The subject property is currently designated as Uptown Commercial/Residential I in the in-force OP. This designation is proposed to be maintained for the property with a site-specific modification added to permit a floor area ratio of 6.2:1 and a building height of 75 metres (excluding mechanical penthouses).

59The subject property is identified as follows on the OP schedules: Mixed Use Activity Area (Schedule A – Settlement Pattern); Mixed Use Centre (Schedule B – Comprehensive Land Use Plan); Uptown Commercial/Residential I (Schedule F – Land Use – Uptown Mixed-Use Centre).

60The Tribunal agrees with Mr. Tchisler that the settlement proposal as implemented by the draft OPA and draft ZBA supports and conforms with the City’s in-force community plan and growth strategy aimed at creating an attractive, liveable community that offers a wide range of housing, employment, transportation, and leisure opportunities (OP s.3).

61The policies with respect to Land Use Policies (OP s.2.5.1; s.2.5.2); Sustainable Design and Compatibility (OP s.2.7.2); Encouragement of alternative modes of travel and transit (OP s.3.2.; s.3.4); the Present Built Form and Natural Environment (OP s.4.2); the Future Built Form and Natural Environment (OP s.4.3); and the Urban Design policies set out in OP s. 6.2 and s.6.5 are in Mr. Tchisler’s opinion, principally met by the proposed settlement.

62The Tribunal concurs that the proposal represents an efficient use of underutilized land that will add new housing and retail opportunities in the Uptown Mixed-Use Centre. The proposal introduces a high-quality built form that will add to the visual appeal and sense of identity of the Uptown and will help define the planned character of the area as the Uptown intensifies. The proposed development will support existing and planned businesses and transit in the Uptown Mixed-Use Centre as the area transitions from suburban to urban. Future residents will be able to take advantage of a number of recreational and community facilities located in the area.

63The proposed development achieves compatibility through its siting, design, and the provision of appropriate landscaping. The increased density is contained within a compactly built form that is located at an appropriate location, being at the corner of two major arterial roads. Material changes and façade articulation have been applied to separate the podium from the towers above to break up the building height and massing. The podium also ensures a pedestrian-scale presence on the street. Landscaping and fencing around the perimeter of the property provide an appropriate buffer for the abutting residential buildings. The proposal will activate the street and create natural surveillance through the provision of retail space along Appleby Line. Parking is located predominantly below grade, with some parking at the surface, which is screened by fencing and landscaping and separated by a 24-metre-wide hydro corridor from Upper Middle Road. The Tribunal finds that the settlement proposal conforms to the in-force OP.

Tall Building Guidelines (TBG)

64While Mr. Tchisler reviewed these guidelines against the settlement proposal, the Tribunal notes that the guidelines are not policy.

65The TBG speaks to the building’s siting, massing, and pedestrian realm. The guidelines recommend podium/tower components and the tower floor plates be limited to 750 square metres. Where multiple towers are proposed, they shall be arranged to provide an appropriate transition to adjacent properties, and the towers shall be separated by a minimum of 25 metres between them to maximize privacy and skyviews.

66In respect of the settlement proposal, the podium is six-storeys and connected to both towers. Although there is not a strong established street wall along either Appleby Line or Upper Middle Road, the building podium is generally located in line with the abutting building at 1980 Imperial Way (six-storeys, no podium) and 1940 Ironstone Drive (sixteen-storeys, no podium, with a-six storey component protruding to the North) to create a connected public realm that is animated with retail at grade uses.

67The building podium is set back a minimum of 11m from the east lot line and 12.5m from the south lot line. The revised tower heights transition from the taller twenty-two- storey building at the corner of Appleby Line and Upper Middle Road and the shorter seventeen-storey building closer to the easterly lot line and the interior of the neighbourhood. The towers floor plates are approximately 750 square metres and are separated by a minimum of 25m internally. Adequate setbacks and stepbacks for the building have been provided, which demonstrate compliance with the City’s shadow requirements.

68It is Mr. Tchisler’s opinion that the revised Plans respect the standards for tall buildings pertaining to the floorplate sizes, tower separation distances, tower setbacks, podium, and public realm considerations, as recommended in the TBG.

CITY OF BURLINGTON ZONING BY-LAW 2020

69The subject property is currently zoned Uptown Commercial/Residential I (UCR1-274) Zone.

70The proposed ZBA maintains the UCR1 parent zone but adds site-specific modifications to implement the increased height and density proposed in the OPA, as well as a number of other physical regulations required to accommodate the proposed building design.

71An assessment of the proposed amendments in relation to the current UCR1 Zone provisions was provided by Mr. Tchisler, and he opined that the proposed changes to the current zoning by-law are appropriate and facilitate a redevelopment that is in conformity with Provincial, Regional, and City policies. The settlement reached with the City included an agreement that the final order on the ZBA be withheld to allow the Appellant and City staff to finalize the text and schedules of the by-law.

FINDINGS

72The Tribunal agrees with Mr. Tchisler that the settlement proposal has regard for matters of provincial interest in the Act, is consistent with the PPS, and conforms with the Growth Plan, ROP, and OP.

73The settlement proposal will result in a development that is compatible with the existing development in the neighbourhood. The level of intensification proposed is at an appropriate level for the subject property, which is proximate to existing transit services and planned frequency route transit.

74The Tribunal finds policy directions exist that seek to optimize the efficiency and viability of transit investment by facilitating new housing developments in the vicinity of the existing bus routes and transit network. The subject property is located along Primary Bus Service Routes. It is well connected to the regional GO transit services via the local bus network.

75It is well positioned to provide intensification, additional housing, and targeted retail in keeping with the applicable Mixed-Use policies in the OP.

76The proposal will result in a complete mixed-use development that is transit supportive. The Tribunal finds that optimizing the use of land and infrastructure represents good planning and is in the public interest.

77The Tribunal finds that the towers and podium design is appropriate, maintain a consistent street wall, and do not impede the pedestrian experience. The public realm is improved with planned buffering and landscaping. This accords with the public realm policies of the OP.

78The Tribunal agrees that the settlement proposal contributes to a liveable community with varied travel options, less reliance on automated vehicles, and more reliance on the usage of bicycles. Improvements to the streetscape and amenity spaces, together with an increase in the mix and range of housing unit sizes, will benefit potential residents.

79The Tribunal finds that the proposed development conforms to the OP and respects the intent of the TBG. The proposal’s density, massing, and height are in keeping with the policies in the Mixed-Use Centre designation. The compact, built-form design is compatible with the existing and planned context of the area. The towers and podium siting, setbacks, and step backs reduce negative visual impact, enhance skyviews and sunlight, thus limiting shadows and unacceptable impacts on the adjacent properties.

CONCLUSION

80The Tribunal finds that the proposed settlement is consistent with the PPS. This is an effective use of the subject site, municipal infrastructure, and facilities. The two towers at seventeen-storeys and twenty-two-storeys contain a mix of uses that support active transportation. The subject property is optimized for a complete community.

81The subject site is currently underutilized. As it is served by existing and planned infrastructure, it is well-placed for intensification. In conformity with the Growth Plan, the settlement proposal will add to the housing stock in a range of sizes and types for the municipality.

82The settlement proposal conforms to the ROP’s, SGA growth management strategy along the Regional Intensification Corridor of the Appleby Line. It conforms to the OP’s efficient land use policies through intensification within appropriate areas of the City, in accordance with the Provincial growth management objectives of section 3. As regards the urban built form, the development design follows the TBG while being compatible with the existing and planned use context around the Appleby Line and Upper Middle Road neighbourhood areas.

83The proposed settlement will enhance the streetscape and add more amenity spaces. The addition of 462 dwelling units will help the City meet the housing stock target consistent with municipal objectives.

84The Tribunal accepts Mr. Tchisler’s opinion evidence and finds that the draft OPA and draft ZBA are substantially in accordance with the revised plans. The applications have regard to matters of provincial interest found in s. 2 of the Act, are consistent with the PPS, and conform to the Growth Plan, the ROP, and the OP. The Tribunal finds that the settlement proposal represents good land use planning and is in the public interest.

85The affidavit statement and oral testimony of Mr. Tchisler are uncontested. The Tribunal will allow the appeal in part and withhold the final order subject to conditions, as requested by the Appellant and the City.

86Since the conclusion of the settlement hearing held by the Tribunal, and prior to the issuance of this decision, the Tribunal has reached out to the Parties to seek input if the passing of Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023 (“OPAA”), which received Royal Assent on December 6, 2023, had any impacts on the potential outcome of this matter. The Appellant, the City and the Region have provided responses to state that Bill 150 does not impact the matter that was heard.

INTERIM ORDER

87Accordingly, the Tribunal Orders that:

1. The Tribunal grants, in part, the appeal of the request to amend the City of Burlington Official Plan made by the Appellant and approves the Official Plan Amendment in principle attached as Attachment “1” hereto, but withholds its final Order amending the City of Burlington Official Plan subject to the satisfaction of the matters set out in paragraph 3 below.

2. The Tribunal grants, in part, the appeal of the application for zoning by-law amendment made by the Appellant and approves the Zoning By-law Amendment in principle attached as Attachment “2” hereto, but withholds its final Order amending the City of Burlington Zoning By-law 2020 subject to the satisfaction of the matters set out in paragraph 3 below.

3. The Tribunal’s final Order amending the City of Burlington Official Plan and City of Burlington Zoning By-law 2020 to permit the development is withheld until the Tribunal has been advised in writing by the City Solicitor that the outstanding matters, listed below, have been completed:

a. The Tribunal has been advised by the City Solicitor that the form and content for the proposed Official Plan and Zoning By-law amendments are satisfactory to the City of Burlington;

b. The Appellant has provided a revised/updated Environmental Noise Study to the City of Burlington that does the following to the satisfaction of the City:

i. Models off-site stationary noise sources that may require mitigation for existing and/or the proposed development and provide the mitigation requirements. If off-site mitigation is required, provide confirmation of a legal agreement between the development and the owner of the off-site noise source(s) to mitigate those noises off-site (e.g., at the source or between the source and the receptor) or such other acceptable arrangements to the Appellant, the City of Burlington and the Region of Halton;

ii. Provide confirmation from an architect that all residential balconies will be less than 4.0metres in depth; and,

iii. Provide required warning clauses.

4. The Tribunal be furnished a copy of the final draft Official Plan Amendment and draft Zoning By-law Amendment for review and approval for attachment to the Final Order.

5. The Tribunal may be spoken to on matters arising from this order.