City and the Region got their clocks cleaned at the most recent Land Tribunal hearing.

By Ryan O’Dowd, Local Journalism Initiative reporter

August 8th, 2021



The Member of the Ontario Land Tribunal and the 40+ people and organizations appealing the adopted but not in force Official plan wanted to see time frames and firm commitments from the City of Burlington and Region of Halton in order tom bring the appeals to a conclusion.

How much of the Burlington that people want to keep will make it through the Ontario Land Tribunal where developers are looking for heights above the 25 storey level.

There is considerable doubt that this will happen.

Member is the title of the person presiding over a hearing. On occasion a Member may “seize” a case which means they are the presiding member every time the appeal is heard.

On most occasions the presiding member is whoever is available.

Counsel for the city and an assistant city solicitor balked at having to go through 54 pages of issues that are part of the ongoing appeals.  There are two sets of appeals; those appealing the Interim Control Bylaw that was put in place two years ago and the appeals against the new adopted but not yet in force Official Plan.

Two examples of issues are set out below:

This was an early version of the thinking coming out of the Planning department for the Waterfront Hotel site more than five years ago. A serious loss at the Tribunal might permit something like this.

Vrancorp asked:
5. Does the revised Downtown Urban Growth Centre (the “UGC”) boundary identified in the New OP conform to the direction of the provincialGrowth Plan (2019) and the mapping provided by the Province, as required by section 3(5) of the Planning Act?

6. Does the revised Downtown Burlington UGC boundary identified in the New OP conform to the direction of the Halton Region Official Plan (1995) and related mapping?

The developer offered to keep the Carriage Gate restaurant in place – believing it would be seen as a plus by the public.

Another example asked by Core FSC Lakeshore GP Incorporated, the developer who wants to put up a 25 + storey development in the football shaped space between Lakeshore Road and Old Lakeshore Road.

8. Are the policies establishing maximum heights, densities, stepbacks, setbacks, view corridors, transitions, dedication requirements, environmental policies, separation distances for tall buildings, and other performance standards in the Old Lakeshore Precinct:

a. excessively rigid and contrary to the Growth Plan (2019), the Provincial Policy Statement (2020), and fail to give regard to matters of provincial interest?

b. incorporate and impose guidelines, policy and study requirements that have either not received final approval or which represent an overstep of the City’s authority to administer these requirements?

c. have appropriate regard for the amount of parkland that the City can require to be dedicated as set out in the Planning Act, and are these policies ultra vires Section 42 of the Planning Act?

d. given an adequate review or consideration by the City before adoption?

e. Is it appropriate for the City to pass off its study of these policies to applicants?

These are not minor matters – the decision that will eventually be made by the OLT will be determined by how strong the city case is.

So far the city and the Region are looking irresponsible and showing little regard for the timelines and requirement to deliver information in a reasonable amount of time.

The city has to answer the questions and there are hundreds of them.

The city and region were supposed to provide a consolidated list of issues related to the new Official Plan by July 23rd, but they failed to do so. In the Case Management Conference meeting held last Wednesday morning City and Regional staff said it simply was not possible to meet the July 23rd deadline.

The list of consolidated issues is now expected on September 8th and will be discussed at the next case management conference in October, a timeframe the Member deemed relatively expeditious – not everyone saw it that way.

The city had offered to lift portions of the Interim Control Bylaw that had been put in place – that bylaw effectively put a hard stop to any progress on the numerous development applications that had been filed with the city planning department that were within the proposed new Urban Growth centre boundary.

The bylaw froze everything for one year with the option to extend the freeze for an additional year.

The city then took the position that they could not lift the freeze until all the appeals related to that Interim by law were resolved.

At the Wednesday meeting the city said it was prepared to lift the freeze on some of the development projects.

Much of the disagreement was about the delay in bringing the ICBL before the tribunal for appeal. The current interim control by-law “freezes” development around the MTSA (Major Transit Service Area) and within the Urban Growth Centre (UGC).

The old, and currently in force, UGC was focused on the downtown core.

The new UGC is focused on the Burlington GO station area.

The profits on development around the GO station are not as rich as those in the Caroline down to Lakeshore Road part of the city.

The Urban Growth Centre boundary is now much further north than it was when the 2014-18 Council changed the Official Plan.

For their part the city’s legal counsel said they would work toward lifting the freeze on areas unaffected by the new zoning by-laws, they expected this to please the developers – this also proved unsatisfactory.

Counsel for West End Home Builders Association (WEHBA) Denise Baker said the appeals process keeps getting “punted down the road.”

Representatives challenged the city’s suggestion of lifting the freeze as vague, lacking substance and a time frame.

Baker was critical of the city failing to schedule a hearing on interim control by-laws.

The ADI Nautique development got approved when a lawyer managed make a link between a bus terminal and the kind of development that was needed.

Denise Baker, some will recall, was counsel for the ADI Development Group when they appealed the decision on the property at Lakeshore and Martha Street where a 26 storey tower is in the process of going up.

Baker was brilliant when she argued that the bus terminal on John Street was an MTSA – which is the designation it had been given even though it is a room that wouldn’t hold 10 people.

The presiding member at the hearing bought the argument and that was enough to approve the ADI development even though they were asking for height on Lakeshore the city had never seen before.

Baker argued on Wednesday that: “At some point, we have a right to have a hearing on the appeals that have now been outstanding for an extended period of time.

She added that “It is absolutely within the tribunal’s jurisdiction to schedule hearings. The “only two months” was part of the ruling on January 14th, and the “only three months” was part of the ruling on April 26th to get to the August 4th date was just not acceptable to Baker who didn’t want to settle for another “only two more months” when it will be dealt with expeditiously.

“ I don’t have a commitment from the city that they will in fact be bringing such a motion” said Baker who added: “They just said they received some instructions to lift the freeze, but no commitment on how they are going to do it or when they’re going to do it.”

The OLT met largely to determine if all the matters the ICBL and the new Official Plan would be heard together.  The best that came out of the meeting to push to get the city asnd the Region to get a wiggle on and produce a document that consolidates the 70 pages of concerns and complaints from the development community that is necessary before the actual hearings can begin.

Whenever the hearings do take place it will be quite a zoo if it has to take place virtually.

Burlington has always claimed that it seldom got a fair shake at these tribunal hearings.

The failure to meet deadlines and to move the files forward is not helping.

With Council on a six week vacation there has been no word from the Mayor, who is usually quick to make a comment through at least one of her 17 communication platforms.

One has to wonder as well  if there are conversations between the City Manager Tim Commisso and the City Solicitor on just what the problem is.

Ryan O’Dowd is a Sheridan College journalism student who is part of a federally funded Local Journalism Initiative that will have him reporting for the Gazette well into 2022.  He is a Burlington native who plays the guitar.

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10 comments to City and the Region got their clocks cleaned at the most recent Land Tribunal hearing.

  • Anne and David Marsden

    If you had not written “it would seem to be a clear account” it might have been a compliment but these words completely destroy any pretense of such particularly as you credit someone else “mentor” with the title of the piece failing to give credit where credi is due. Anne is a well published opinion writer and sports reporter at the local level, in the past, and has had two pieces of her work accepted for publishing in a national magazine and as one of 20 papers out of 50+ submitted published in an international conference’s post conference publication. She uses these skills along with Dave’s to give credi where credit is due and to go to bat for those who find communication written or spoken very difficult. We both just spoke on behalf of a young lady in court pro bono, who was facing the prospect of huge costs in a legal matter she had no means to defend. It took many hours of research and prep time as well as several hours in zoom court, at a time we were dealing with an LPAT motion so most of the work had to be done in the very early hours of the morning. Not only did we get what she needed the master put on the record her thanks to the Marsdens for the clarity they brought to the matter that allowed an appropriate judgment to be made. As a thank you she sent us a framed copy of the master’s statement. We are not writing this to brag but to let you know we know who we are and our reasons for doing what we do with our time and you will never alter that no matter how many derogatory remarks you make.

  • That’s the best laugh we’ve had in weeks David keep such comments coming we need lots of laughs right now!

  • Ireland

    Does anyone care what the taxpayer wants?This is fighting among.bureaucrats and not listening to the public who live with these plans.Trafic, social problems,schools,ect.The dollar is being the in the driver’s seat not the taxpayer.

  • David Barker

    Mr. O’ Dowd, I congratulate you on a well written piece that provides, it would seem, a clear account of the happenings at the OLT.

    The title of your piece though, ” City and the Region got their clocks cleaned at the most recent Land Tribunal hearing” is incongruent with your description of the happenings at the hearing. Your piece clearly shows the appelants voiced their continuing frustrations at the ongoing delays. But I read nothing in your report that indicates the presiding member expressed any annoyance or impatience with the City or the Region. Did the presiding member verbalize in any way “the failure to meet deadlines and to move the files forward is not helping” the City’s case. The fingerprint of a mentor perhaps is evident?

    • Bob

      I had the same reaction once reading the full story. I never saw the justification for the headline.

    • David perhaps if you had tuned in you would understand where the title came from. A member who fails to address the city and region ignoring his orders is clearly not in control of the hearing . The appellant counsel were the ones referred to in the title, we would think after being in attendance. The May 31 decision on an exemption from the ICBL by a Vice Chair clearly shows the city and region counsel are not a match for those who demand rules and orders be followed and public resources not be flushed which is what is well evidenced as occurring at all the CMC’s presided over by Tousaw related to the three ongoing appeals. When Minister Clark eventually decides, as he must, enough is enough perhaps Tousaw will be replaced and then watch things be brought into control as they should be and not as Member Tousaw sees it.

      • David Barker

        Hmmmm. Not sure you can say opposing council “cleaned the City’s clock” by way of its flowery arguments and hyperbole unless the OLT members offered rulings against the City, which I understand was not the case.

        The developer’s counsel’s impassioned arguments having not drawn any rebuke from the members towards the City, one might argue the developers actually got their clocks cleaned.

        Perhaps you are just trying to bail out Mr O’Dowd.

        • There were no flowery or impassioned arguments or, unlike your comment hyperbole, just straight facts David and a member who does not appreciate there are rules of play and there always has to be a cost for non-compliance with the rules of play, at least if you are going to play fair and not show a bias. Mr. O”Dowd does noit need bailing out, he got it absolutely right including the title. It is sad that you have to go on the attack for a job that was very well done – end of story!.

          • David Barker

            Not an attack at all. Quite the contrary. You will note I congratulated Mr O’ Dowd on a well written article. I did question the title which seemed inconguant with what was written in the body of the article. Bob seems to have the same viewpoint. Not an attack at all just a question posed to the author.

            Here’s a question posed to everyone:- “why is it nowadays that someone questioning a statement or posing an alternate point of view is, as Anne & David have said, is seen as attacking the person who made the statement or put out a position? We all need to be more tolerant of other’s viewpoints. I do think though if someone says something and is questioned on it, that person should be ready to respond to the questioning.

  • Excellent and accurate The only thing missing is the May 31st decision of Vice-Chair Sills that preceeded the hearing (which your reporter probably did not have access to.) that clearly depicts a city affidavit as misrepresenting the facts around the ICBL at best and highlights the city disrespect for appropriate use of public and private resources. What we don’t understand is why the Minister and his representatives Loralea Tulloch and Heather Watt who have been given rock solid evidence that clearly identifies the city and region’s blatant disregard for the Ontario Legislative Planning Framework.and the Minister’s power to remove the Region’s approval authority for lower tier official plans and return that authority to the Minister.