Appleby Village residents choose to ask for what they thought they could get from the developer who wants to get on with a project that has been in the works since 2012

News 100 redBy Pepper Parr

September 22nd, 2020

BURLINGTON, ON

PART 2 of a SERIES: The first piece in this series of articles on the incredible success the citizens living in the Appleby Village part of the city had when they went up against a developer who had filed an appeal with the Local Planning Act Tribunal (LPAT) .

The first the larger public heard about how things had turned out for the citizens who were opposed to the Appleby Village development was when the Mayor announced during a Council meeting that there was a settlement offer from the developer.

The development project in the east end goes back to 2014 – the developer had a plan that got put on hold when the Region realized that the Storm Water System could not handle the amount of flood waters; that a larger pipe would have to be put in place.

That put the project on hold for two years.

Jeremy Skinner, an east end resident who spends his free time going to community meetings, had become friendly with Ward 5 Councillor Paul Sharman and got into the habit of attending his meetings.

Skinner wondered if there were people in the community who were as curious as he was about how such a development would get past the Planning Department.

Developments iin the immediate area

There is a very vibrant community surrounding the site. The area in the center in grey is the land that has undergone significant re-development during the past ten years. The X is where the high rise and town houses are going to be located.

The Gazette had been following the story but not as closely as Skinner.

Skinner put together a flyer and dropped them off at homes in the immediate area of the proposed development which at that time was for two Residential Condominium Apartment Towers with one at 12-storeys and the second at 17-storeys.  These were subsequently changed to 17-storeys for both towers when the matter got to an appeal application.

The residents who bordered the proposed development of Appleby Village were shocked to receive invitations to attend the initial LPAT Pre-hearing Conference for the First Capital (Appleby) Realty appeal for lack of City decision to amendments to the Official Plan (OP) and the By-law (ZBL). They got the invitation either because their homes were within a boundary set out by the city or because they had attended a meeting and put their names on a sign up sheet.

Public art is set at the north west corner of the Village. Goats.

Public art is set at the north west corner of the Village. Goats.

The Official Plan (OP) and the Zoning Bylaw ( ZBL) for the 6.6-hectare site were defined as a maximum of 12-stories.

Nothing was happening while the Region improved the storm water pipes. That work was completed by the end of 2016.

At about the same time there were rumblings within the development community that the Ontario Municipal Board was going to undergo a significant change. Word at the time was that municipalities were going to have more involvement in the process – that belief  supported by the new name. Local Planning Act Tribunal. The LPAT acronym turned out to be very misleading.

The new act came into effect on December 12th. Many developers, believing they could read the tea leaves, filed appeals wanting to be heard under the old OMB rules.  First Capital filed their appeal on November 17th, 2017 which meant their appeal would be held under the to-be-replaced OMB rules and procedures.  It also meant that the city’s  Planning Department was out of the game – the city lawyers now had the file.

By this time Skinner had become quite active in the community and recruited what he called “street captains” people who would distribute another flyer to households.

MacDonalds coffee invitation

The invitation Jeremy Skinner distributed to the neighbourhood.

Sixteen people took up the invitation – Skinner now had his community group.

They met on a number of occasions figuring out what their approach should be and what was actually possible.  They knew the development wasn’t going to be taken off the table – but believed they could get changes that made it better for everyone in the community.

Site BEST

It’s an active site with a very good restaurant, a Starbucks, an LCBO, a bank and a supermarket.

The first LPAT appeal meeting took place at city hall on May 1st where those seeking Registered Participant status were advised to group themselves with other residents who had common concerns and identify representative speakers who would make statements at the hearing.

That was initiative enough for Skinner to host a neighbourhood meeting on the 26th of June 2018 at Pineland Baptist Church. “At the meeting, we reviewed what was known about the development application, and then considered our response based upon what we believed was possible to win at LPAT and what would be required to do so.

“We decided not to challenge the Developer or the City on matters such as: the number of buildings; building heights; number of residential suites; the number of their guests’ vehicles in underground parking; and impact on traffic for the developer and the City to resolve” said Skinner.

“This was due to the high costs to hire LPAT recognized Subject Matter Experts and suitable Legal representation. Instead, we decided to focus our efforts on documenting our issues of “transition compatibility to our bordering residential neighbourhood properties” and the need to “improve and make safe pedestrian egress to the site”.

“We drafted and ratified a proposal letter complete with eight conditions summarized below which, if satisfied, would result in the community group  withdrawing our objection to the proposed development and instead to follow the City’s lead. It was sent to all LPAT parties and the LPAT Case Coordinator on the 8th of July 2018.

Conditions

These were the conditions the community took to the developer.

 

There were numerous meetings with the developer’s architect and senior people at First Capital.   The residents knew that the development was eventually going to get approved and that they really didn’t have much clout; the developer wanted to get on with the construction and move the file forward – getting rid of the residents was the price they would have to pay.

At a subsequent LPAT meeting (Preconference Hearing # 2 ) Eileen Costello, a lawyer,with Aird and Berlis, counsel for the developer,  advised LPAT that on the 30th of October, 2020 they would be submitting a revised development plan that was being submitted on a Without Prejudice basis and that “discussions have continued with the City”.

Ms. Costello stated that they have looked at the information submitted by the local residents and intend in the future to take a revised proposal out for communication and discussion with the residents.”

What this meant was that the residents had prevailed – the developer was going to go along with much of what the residents had proposed.

June 2020 site plan

Green = development pedestrian egress & townhouse front yards

Now the challenge was to make that point with the city and to get the Planning Department back into the game.  They were no longer part of what was happening – the moment the developer filed the LPAT appeal the city’s legal department was in control of the file – not that the city had all that much going for their side of the difference of opinion on the development.

Jeremy Skinner delegated at city hall on a matter that was part of the CLOSED SESSION agenda.

He started out telling the Council members that the day before there had been a ZOOM meeting that his group had been invited to attend.  The developer set out the changes they had made.

Those changes were enough for the Appleby Village community group to withdraw their objections.

In a short report on the city web site the scope of the win for the residents is set out:

The settlement between the City and First Capital resolves the issues in dispute between the City and First Capital on the basis that First Capital and the City will seek LPAT approval of a revised development concept for the property. The City and First Capital will request the LPAT withhold a final order approving the development until the City and First Capital are satisfied with technical studies that are required to support the revised development concept.

The revised development concept proposes 368 dwelling units in both apartment and townhouse forms located on a portion of the site of the former Appleby Mall that currently contains a parking area adjacent to existing retail/commercial uses. The revised development concept reduces the building heights of the original proposal from 12 and 17 storeys, down to a 9 storey and two 12 storey buildings that are in compliance with the Official Plan. The revised development concept also: increases setbacks from Pinedale Avenue; reorients and redesigns the buildings to achieve compliance with the City’s Urban Design Guidelines; introduces townhouse units at the base of the buildings; and provides enhanced landscaping, among other things.

The City and First Capital will attend at the LPAT hearing scheduled to commence on November 2, 2020 to seek approval of the Zoning By-law amendment and revised development concept by the LPAT.

End of part 2

Part 1.

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