ADI Municipal Board appeal gets adjourned until Wednesday so the city can instruct its lawyers on what they want to see done.

News 100 redBy Pepper Parr

March 14, 2016


The fat is in the fire and there are deadlines out there that will be hard for some of the parties to the ADI Development Group Ontario Municipal Board appeal hearing to meet.

The Chair of the appeal to the OMB that ADI made is one Susan Schiller. Ms Schiller was one of the Commissioners who heard the Nelson Quarry appeal for an expansion to their quarry in North Burlington a few years ago. That Joint Tribunal found in the city’s favour. That decision was based on the habitat of the Jefferson Salamander – see the link to that story below. Ms Schiller is a no-nonsense chair – expect her to keep counsel on their toes.

The opening of the OMB hearing was in some doubt when Burlington city council announced on Thursday their would be a special council meeting on Tuesday at 1:30 pm to hear a legal update on the ADI appeal. The city said nothing other than it was related to a property at 374 Martha Street – which is the address of ADI’s 26 story Nautique development.

Martha Street bungalow

The eastern end of the site ADI wants to put a 26 storey condominium on and the bungalow to the north of the property at the Martha Street and Lakeshore Road intersection.

That was all we knew on Friday. At the hearing this morning we learned that ADI had purchased the small bungalow tucked in behind the property ADI had assembled for the Nautique project.

And here is where the differing interests come into play.

ADI Nautique detailed sketch

The ADI development group purchased the property at 380 Martha Street and has asked for a delay of their OMB appeal while they work with the city to figure out how to integrate the property into the original development. Some argue that the purchase of the property makes the development a whole new ball game.

ADI wanted the hearing delayed until the fall while they worked out how they would fit the newly acquired piece of property into the larger development. The lawyer for the city said he couldn’t agree or disagree with the ADI request until he had directions from his client – the city of Burlington. The meeting at which the city will work out its position is to take place on Tuesday at 1:30 pm

Burlington City Council Group

Can this council make a critical decision in the 120 minutes they were given by an OMB commissioner? Don’t bet the mortgage on it.

Chair Schiller said she was fine with adjourning the Monday meeting until Wednesday morning but she needed a decision no later than 3:30 pm on Tuesday.

It will take someone with a big magic wand for that to happen. The city has 120 minutes to arrive at a decision – with seven council members they each get 17 minutes – that won’t happen. Add in the staff comments; the comments from the lawyers and there goes that deadline.

The decision the city has to make is – are they willing to go along with the ADI request for an adjournment until the fall?

The complications get thicker.

There are those who want to argue that the Chair of the OMB hearing should throw the appeal out right now because the addition of a piece of property to what is an appeal means that this is in reality a whole new development.

ADI appealed because they weren’t happy with the city’s inability to approve or disapprove of the application within the 180 days required under the planning act and wanted to the OMB to make the decision.

The addition of that piece of small bungalow at the north end of the property means this is really a new development.

Nautique ADI rendering - sparse

Has the ADI Nautique development reached the point where it has entered that “will never see the light of day” zone?

What ADI will argue is that the chair does not have the jurisdiction to refuse to go forward with the appeal application. The city and the owners of a condominium across the street from the bungalow (Sun Life Insurance) will argue that the Chair cannot hear the ADI appeal because the project has had a substantial change made to it.

Patrick Devine, the lawyer representing the Sun Life interests argued that a new project proposal should be submitted by ADI to be followed by the requisite public meetings and a review by the planning department.

He also complained about the short notice he was given by the ADI lawyers on their decision to buy the bungalow – which is reported to have been owned by Nick Carnicelli, the developer behind the Berkeley project on Caroline and John Street that is getting closer to putting a shovel in the ground. Carnicelli also has other property holdings in the block bounded by Martha, Pearl and Lakeshore. A number of years ago Carnicelli bought the Pearl Street Café and a critical strip of property in behind those two buildings.

It is all a bit of a mess – there are pretty good grounds for throwing the ADI appeal application out; that argument will be something to watch.

ADI seemed to be suggesting that with the acquisition of the really small bungalow many of the objections the city had to the development could be worked out. The current zoning for the property ADI wants to build on is for 8 storeys – how a small bungalow is going to impact the 26 storeys ADI wants to put up is going to be an interesting legal argument.

Would it be reasonable to come to the conclusion that the ADI decision to purchase the bungalow at this late date is pretty close to “flying by the seat of your pants” decision making.

For those who have made deposits on units in the proposed development – it’s going to be a while before you can move in.

Chair Schiller advised the meeting this morning that if the hearing is adjourned – there is no room on the calendar for a resumed hearing until sometime in the 1Q of 2017.

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2 comments to ADI Municipal Board appeal gets adjourned until Wednesday so the city can instruct its lawyers on what they want to see done.

  • Tom Muir

    I sent the following to Councilor Meed Ward as a comment to her newsletter story on this issue.

    “This purchase could have been done long ago, and the proposal evaluated as including it. This is just more dirty tricks by ADI to confound the situation.

    It really makes very little difference in the overall evaluation of the merits of this project within the overall planning framework.

    An earnest effort at assembling a site parcel large enough for a revised ADI proposal, and a reconsideration of staff planning opinion, would include the parcel to the west containing low-rise medical related offices I believe.

    The staff report says the following (page 56):
    “In fact, the one-storey commercial building located
    west of the subject property is located approximately 0.15 m from the mutual
    property line and the proposed development has requested a 0 m setback from
    this property line. This means that the first four storeys of the proposed
    development would be built right to the shared property line and there would be a
    space of approximately 0.15 m between the existing commercial building and the
    proposed 28-storey building.”

    What I find really disturbing too is that the public is just being notified of this need for a Council decision on an adjournment by TOMORROW!

    This kind of last minute finagling is just the kind of crap that I have feared all along this process.

    The legals and planning have emphasized all along that the city has a very strong case.

    If legals and planning advice to Council is to vote to support this adjournment, then as far as I am concerned we have been lied to and misled this whole time.

    There is nothing offered here by ADI to warrant an adjournment. It’s a pittance in perspective.

    If OMB rules against them, they can always reapply with a new proposal.

    What they are asking is for the city to drop their case from proceeding, for the city to take the hit.

    No way to vote for this nothing offer to derail the public process yet again.

    Do not support this adjournment Councilor.”

    Given the subsequent stories in the Gazette I would add the following.

    The Ontario Municipal Board has expanded powers to dismiss an appeal without a hearing based on a number of grounds which, depending on the matter appealed, can include:

    appeal is not made in good faith or is frivolous or vexatious, or is made only for the purpose of delay
    appeal constitutes an abuse of process, such as repeating the submission of an application that has recently been dealt with
    appeal is substantially different from that which was before council at the time of its decision

    It would appear that this ADI appeal has become blended with aspects of all the grounds for dismissal listed here.

    I think it self evident that no grounds have been given by ADI to suggest their request for adjournment is anything except an 11th hour attempt to divert the due process to their potential advantage and possible gain, at the expense of the city.

    I request that Council refuse the request for adjournment.

  • hmm. Requiring a new application process would be nice.