ISSUE DATE: September 12, 2024

CASE NO(S).: OLT-24-000413

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Ecom Properties Inc.

Subject: Minor Variance

Description: to permit office use on ground floor of existing building

Reference Number: 540-02-A-085/2023

Property Address: 494 - 498 Brant Street

Municipality/UT: Burlington/Halton

OLT Case No: OLT-24-000413

OLT Lead Case No: OLT-24-000413

OLT Case Name: Ecom Properties Inc. v Burlington (City)

Heard: June 25, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Ecom Properties Inc.	Matthew Rutledge
City of Burlington	Brittany Maione

Link to the Order

1This is an Appeal pursuant to subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended in respect of the Decision of the Committee of Adjustment for the City of Burlington (“City”) refusing the Appellant’s minor variance application (the Application”). The Application concerned the property municipally known as 494-500 Brant Street, in the City (the “Subject Property”) and sought a Minor Variance from the provision of Zoning By-Law No. 2020 (“ZBL”) which forbids the use of the ground floor of the Subject Property for office purposes.

2The Appellant also owns the property municipally known as 502 Brant Street, which is the immediate neighbour to the north of the Subject Property. 502 Brant Street is improved with a one storey building located at the corner of Brant Street and Caroline Street and is tenanted by the owner of a REMAX real estate brokerage. The building at 502 Brant Street and the building on the Subject Property have zero setbacks from the common property line and share a party wall. In 2016 the Appellant obtained a minor variance to permit the operation of the REMAX real estate office at grade at 502 Brant Street. The Appellant now seeks zoning relief on the Subject Property so that its tenant at 502 Brant Street can expand the real estate brokerage office onto the Subject Property by opening up the party wall.

Subject Lands and Surrounding Area

3The Subject Property is rectangular in configuration and comprises 1,203 square meters (12,949 square feet) with 29.87 meters (97.9 feet) of frontage onto Brant Street. The Subject Property is located in Burlington’s downtown community on the west side of Brant Street south of Caroline Street and is improved with a two-storey commercial building. The first floor is home to various commercial and office uses including a Subway restaurant and a former orthodontist office. In addition, there are various office uses on the second floor.

4The Subject Property is within a well-established downtown neighbourhood which is a “main street” commercial district in the City. Surrounding building types are predominately two-storey commercial buildings.

HISTORY OF THE APPLICATION

5On August 11, 2023, the Appellant caused an application to be submitted to the City’s Committee of Adjustment seeking a Minor Variance granting relief from the provision of the ZBL which forbids the use of the ground floor of the Subject Property for office purposes..

6On January 31, 2024, the Committee of Adjustment refused the Minor Variance Application and on February 20, 2024, an appeal of the Committee of Adjustment's decision was filed with the Tribunal.

7June 25, 2024, was scheduled for the hearing of the Appeal. On June 11, 2024, counsel advised the Tribunal’s Case Coordinator that the Parties had reached a settlement of the Appeal. This hearing event accordingly proceeded as a settlement hearing.

EVIDENCE IN SUPPORT OF THE PROPOSED SETTLEMENT

8Counsel for the Appellant called Brandon Stevens, MCIP, RPP, to provide the Tribunal with planning opinion evidence in support of the settlement. Mr. Stevens was qualified to provide such opinion evidence on consent. Firstly, Mr. Stevens testified, and both counsel agreed that the address of the Subject Property should be amended to read as 494-500 Brant Street.

9A Planning justification Report, authored by Mr. Stevens, was produced and marked as Exhibit 1. Mr. Stevens testified that the settlement proposes the following revisions to the Minor Variance Application, (the “Revised Application”):

i. the Revised Application only seeks relief to allow for a real estate brokerage office use rather than an office use.

ii. the Revised Application only applies to the portion of the Subject Property municipally known as 500 Brant Street; and

iii. the revised minor variance (“Revised Minor Variance”) shall be subject to the following conditions:

a) The Appellant shall submit a re-designed floor plan of the Subject Property (the "Floor Plan"), to the satisfaction of the Director of Community Planning, whereby the Floor Plan provides for an active store frontage.

b) The building at the Subject Property shall contain clear glazing and real estate postings shall be visible and maintained on the windows along the ground floor of the front facades to ensure an active store frontage.

c) The doors of the building at the Subject Property fronting onto Brant Street shall be open to the public during business hours.

d) The doors of the building at the Subject Property fronting onto Brant Street shall be preserved in their current location and shall be identified in the Floor Plan and.

e) The Appellant and the City shall enter into an agreement pursuant to Sections 45(9), (9.1), and (9.2) of the Planning Act with respect to the requirements of conditions 2 a) – 2 d) above, which shall be registered on a first priority basis on title to the Subject Property.

10Mr. Stevens testified that, in terms of condition a), the Appellant has provided the City with four floor plan options, attached to his Planning Justification Report as Exhibit "C", which the City has confirmed are satisfactory.

11Mr. Stevens also testified that, in terms of conditions b) to d), it is noted on the floor plans that the required items will be provided, namely that:

a) The building will have clear glazing and real estate postings will be visible and maintained on the windows along the ground floor of the front facades and.

b) The doors of the building at the Subject Property fronting onto Brant Street will be open to the public during business hours and will be preserved in their current location.

12Mr. Stevens testified further that in terms of condition e), the Appellant and the City will be required to enter into an agreement to be registered on title to the Subject Property.

LEGISLATIVE TESTS

13 Section 45(1) of the Planning Act provides that an application for a minor variance must satisfy four tests. These are:

a. the proposed minor variance must maintain the general intent and purpose of the Official Plan (“OP”);

b. the proposed minor variance must maintain the general intent and purposed of the ZBL.

c. the proposed minor variance must be desirable for the appropriate development or use of the land, building or structure.

d. the proposed minor variance must be minor in nature.

14Mr. Stevens testified that it is his opinion that the Revised Minor Variance satisfies the four tests. The Subject Property is designated Downtown Mixed-Use Centre by Schedule B – Comprehensive Land Use Plan, in the 1997 OP. The Subject Lands are further designated Downtown Core Precinct by Schedule E – Downtown Mixed-Use Centre, which provides that:

a. the Downtown be established as having a unique role in that it should provide for a mix of uses (including retail, service, residential, waterfront recreational and office uses);

b. there should be design excellence to encourage long-term investment and.

c. there should be a continuous, safe, and attractive environment through streetscape, building façade improvements and the design of new buildings.

15Mr. Stevens testified that the City’s 2020 OP is under appeal. The City 2020 OP designates the Subject Property as being within both the Downtown Urban Centre and the Brant Main Street Precinct (Schedule D – Land Use: Downtown Urban). The Subject Property is also identified as being within the Urban Growth Centre and located on a Retail Main Street per Schedule D-1.

16Mr. Stevens testified that the Downtown Urban Centre, as the City's primary centre, is envisioned as a lively, vibrant "people place", with a wide variety of employment, shopping, leisure, residential, recreational and tourism opportunities. This policy also states that the Downtown Urban Centre will be an area where specialty retail, entertainment, cultural, public services facilities and institutional facilities, offices and residential uses, shall be developed. Mr. Stevens emphasized that, overall, the general intent and purpose of the 2020 OP policies is to encourage the growth of the Downtown and Brant Main Street Precinct as a centre for businesses and commercial uses with vibrant streetscapes that contain active uses at grade.

17Mr. Stevens referred the Tribunal to the existing REMAX real estate brokerage located next door to the Subject Property at 502 Brant Street and that the Appellant wishes to expand the REMAX office to include the ground floor area of the Subject Property which until recently was an orthodontist practice. Mr. Stevens testified that the terms of the settlement and the revised Application will allow this use to expand. He testified that the real estate listings advertised on the storefront will attract and engage pedestrians, and that, as the real estate industry is customer-focused, it will encourage client interactions in the downtown area, increasing foot traffic. Mr. Stevens testified as to his opinion that while a real estate office is a professional office use, the retail/service aspect of a real estate office distinguishes it from other professional office uses and will work to enhance the objectives and direction of the OP. It was Mr. Stevens’ opinion that the proposed minor variance will maintain the general intent and purpose of the OP.

Will the Revised Minor Variance maintain the general intent and purpose of the ZBL

18Mr. Stevens testified that the ZBL zones the Subject Property as DC-Downtown Core. He stated that the DC designation permits all Office Uses, as indicated in Table 6.2.1. However, footnote (g) of the ZBL (in respect of which the Revised Minor Variance is sought) does not allow office uses on ground floors within 15 meters of public streets, which in the case of the Subject Property, is Brant Street. Mr. Stevens pointed out that the Revised Minor Variance is not introducing a new use. Instead, it will allow an existing use to extend its operations onto the 500 Brant Street portion of the Subject Property.

19Mr. Stevens testified that the general intent of the ZBL in the Downtown Core is to promote a vibrant core by ensuring that uses which provide for active store fronts are located at the ground floors of buildings. He testified that real estate offices align with these objectives of the ZBL as they create an engaging and interactive space with the clear intention of attracting shoppers, residents, and passers-by. Mr. Stevens testified that in his opinion, the Revised Minor Variance meets the general intent and purpose of the ZBL.

Is the Revised Minor Variance desirable for the appropriate development or use of the land, building or structure

20Mr. Stevens testified that the proposed real estate brokerage office use will allow the already successful REMax business to expand its operation while simultaneously activating the 500 Brant Street location into an engaging storefront. He testified that this transformation would transform the existing orthodontist office use into an engaging store front with a more vibrant commercial real estate presentation that engages pedestrians visiting the downtown.

21Mr. Stevens testified that it is therefore his opinion that, the Revised Minor Variance is appropriate and desirable for the development or use of the Subject Property in view of its location in the Downtown Core of Burlington

Is the proposed variance minor in nature

22Mr. Stevens testified that from a quantitative perspective, the Revised Minor Variance is modest in nature as it will impact only approximately 12 meters of frontage onto Brant Street and does not seek relief from any applicable built form standards. It is therefore Mr. Stevens’ opinion that the Revised Minor Variance is minor as it is primarily of a qualitative nature.

Finding with regard to the Four Tests in Section 45(1) of the Planning Act

23The Tribunal finds that the proposed minor variance, as revised, will maintain the general intent and purpose of the OP, will maintain the general intent and purpose of the ZBL, is desirable for the development and use of the Subject Property, and is minor in nature. In addition, the Tribunal finds that the Revised Minor Variance is modest and will not result in any adverse impact on adjoining properties, and that the zoning relief sought is not of a scale or scope to warrant a full re-zoning application, The requested minor variance satisfies all four tests of Section 45(1) of the Planning Act and represents good land use planning.

PLANNING ACT – MATTERS OF PROVINCIAL INTEREST

24The Tribunal finds that the proposed minor variance application is in general compliance with the provincial interest as required by section 2 of the Planning Act, as it will preserve the character of the downtown core, will not impact adjacent properties and is in keeping with the OP and ZBL

PROVINCIAL POLICY STATEMENT, 2020 (“PPS”)

25The Tribunal finds that the proposed minor variance meets both local and PPS goals and objectives and is consistent with the policy of managing growth while encouraging a sustainable vibrant and attractive downtown community core.

A PLACE TO GROW: GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE, 2020 (“GPGGH”)

26The Tribunal finds that the proposed variance, will not add to the demand for infrastructure services or transit needs, and that it will enhance this area of the downtown. The net result will be that an existing orthodontist office on the street level will be replaced with a retail style window display featuring real estate presentations in alignment with other retail functions.

HALTON REGION OFFICIAL PLAN (“HROP”)

27The Tribunal finds that the variance application is in general compliance with the HROP objective of downtown areas featuring stores that emphasize the creation of active and engaging streetscapes that foster economic vitality and enhance the shopping environment, and that integrate well with the existing urban fabric and enhance the pedestrian experience.

PLANNING JUSTIFICATION

28Mr. Stevens testified that the proposed real estate brokerage office use is already permitted at the Subject Property on an upper floor of the existing building, is permitted on the ground floor immediately north at 502 Brant Street through a previous approval, and is also a permitted use just north of the Subject Property on the north side of Caroline Street. Mr. Stevens emphasized the significance of the proposed settlement conditions, which ensure that the proposed real estate office use will have an active store frontage by requiring that:

the windows have clear glazing.
the real estate postings are visible and maintained on the windows along the ground floor of the front facade and.
the doors fronting Brant Street will:

a) be preserved in their current locations and

b) will be open to the public during business hours

c) four proposed floor plan layouts were provided by the Appellant’s architect that met the City’s building department’s approval.

CONCLUSION

29The Tribunal accepts the uncontested expert planning evidence and opinions of Mr. Stevens and finds that the Revised Application has regard for matters of Provincial interest, is consistent with the PPS, and conforms to the GGHGP and the ROP.

30The Tribunal finds that the Revised Application meets the general intent and purpose of the MOP, meets the general intent and purpose of the ZBL, is a desirable and appropriate use of the lands, and is minor in nature.

31The Tribunal finds that the requested variances, both collectively and individually, represent good planning and are in the public interest.

32On consent, the Tribunal has been asked to accept and consider the Revised Application. The Tribunal has determined, as required by Subsection 45(18.1.1.) of the Planning Act, that no further notice is required as the amendment to the original Application is minor.

ORDER

33THE TRIBUNAL ORDERS:

a. Pursuant to subsection 45(18.1.1) of the Planning Act, as the revisions to the Application as contained in the Revised Application are minor in nature, the Tribunal determines that further notice is not required and determines that this appeal will proceed on the basis of the Revised Application;

b. that the Appeal is allowed and the Revised Application is approved, subject to the conditions set out in Appendix A attached.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

MEMBER

“N. Allam”

N. ALLAM MEMBER

Ontario Land Tribunal

Website: 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.

APPENDIX A