By Pepper Parr
June 25th, 2024
BURLINGTON, ON
When an Ontario Land Tribunal decision goes against what many wanted to see the howl from the community is that the government doesn’t respect the wishes of a community and that the province is calling the shots when it comes to decisions made by a Tribunal.
Understanding the process and paying attention to the evidence given at a Tribunal hearing should persuade a reasonable, rational person that Tribunal decisions are based on the evidence of the expert witnesses.
The Ontario Land Tribunal held a 17-day hearing regarding appeal proceedings brought by Millcroft Green Corporation (“Applicant”) under the Planning Act (“Act”) for the failure of the City of Burlington (“City”) to make a decision within the prescribed timelines regarding applications for an Official Plan Amendment (“OPA”), Zoning By-law Amendment (“ZBA”) and a Plan of Subdivision (“(PoS”). The appeals all relate to the properties located 2155 Country Club Drive and 4274 Dundas Street (“Subject Lands”).
The applications sought to reconfigure the existing 18-hole golf course in a manner that would create five parcels of developable urban lands (Areas A through E).
The developers bought the Golf course with the intention of developing parts of the property that were suitable for housing.
For the following reasons, the Tribunal grants the appeals in part, having found that the proposal represents good land use planning, and is in the public interest. The reasons are as set out herein after careful consideration of the policy and legislative framework, the appeal documentation and the evidence.
That policy and legislative framework and the evidence are what mattered.
Some examples of how the Member hearing the evidence arrived at a decision.
The member said:
Glen Wellings, the Planner representing Millcroft Greens, the developer had certainly done his home work. The hearing Member chose to prefer the evidence Wellings gave – because he was right and better prepared most of the time.
Mr. Wellings a land use planner for the Applicant, testified the suggestion that the golf course was intended as a permanent land use at the time it was first developed, is incorrect. This suggestion he noted is also inconsistent with restrictive covenants contained in offers of purchase and sale advising homeowners that the golf course may cease to exist in the future.
Mr. Wellings testified the policies of OPA 117 including those specifically related to the golf course, were not carried forward in OP 1997 or OP 2020.
Mr. Wellings advised that from the language of the amendment, one can conclude that while the golf course was intended as a significant feature within the community, there was an acknowledgement that its configuration and indeed its existence at all, might be subject to change in the future.
Mr. Wellings advised OPA 117 references those portions of the golf course containing creek features which are part of the stormwater management system would remain as open space. Mr. Wellings emphasized the applications, the creek features and associated hazard lands will remain designated and zoned as ‘Open Space’.
The Tribunal has heard the evidence and submissions of the Parties and finds that although Mr. Manett and Mr. Ramsay provided significant arguments on several policies, the Tribunal prefers the compelling evidence of expert witnesses Mr. Wellings, Mr. Fleming, Ms. Lawrence and Ms. Baron.
Another example:
In regard to transit, although there are limited bus routes in the Millcroft community and the walking distance to each was raised as a concern, the Tribunal is satisfied that the level of intensification will assist in increasing ridership and support existing transit routes across the City. The Tribunal finds the proposed development will also promote other modes of transportation such as walking and cycling as described through the evidence of Mr. Fleming.
On another example:
The five blocks of land the developer would build housing on.
The Tribunal agrees and prefers the evidence of Mr. Wellings who advised the applications were the result of a comprehensive planning assessment and review, which included the integration of selected development parcels within the golf course redesign. The Tribunal would also note the extensive reports and plans provided for in this application and does not find the proposed development was completed in a “piecemeal” or “ad hoc” fashion.
The Tribunal finds that the applications respond to s. 2(n) which speaks to the resolution of planning conflicts involving public and private interests as the proposed housing and the maintaining of the 18-hole golf course (re figured) provide for a balance of interests by meeting the necessity for housing while maintain the open space value of the golf course.
On another:
The Tribunal is satisfied through the evidence of Mr. Wellings, the applications will provide needed housing close to educational, health and recreational facilities. Since lands are not within a PMTSA, the Tribunal notes there no policy requirements for an affordable housing compliment.
On another:
The Tribunal finds the draft PoS is not premature and is in the public interest as it seeks responds to various matters of public interest including the protection of natural heritage and natural hazard features while adding to the provision of housing opportunities through intensification. The land is suitable for the purposes for which it is to be subdivided and the dimension and shape of the proposed lots is appropriate and consistent with the existing pattern of development that surrounds the Subject Lands.
Therefore, the Tribunal also finds that the draft PoS has appropriate regard for the criteria set out in s. 51(24) of the Act.
On another:
The Tribunal prefers the expert evidence of Mr. Wellings, Ms. Lawrence, Ms. Baron and Mr. Richard in regard to the PPS.
The Tribunal finds the City and MABD did not sufficiently demonstrate that the proposed development is an overdevelopment, does not promote intensification, does not provide adequate community connectivity, is not transit supportive, and does not promote open space.
Block B
The Tribunal is satisfied through the evidence of Mr. Wellings, that the proposed development is located within a Settlement Area, represents an efficient land use pattern, and promotes intensification.
The Tribunal finds that in regard to intensification, Areas A-D are located within the delineated built-up area. The Tribunal agrees with Mr. Wellings, the proposal promotes intensification and increased density in support of complete communities, and it accommodates growth that is compact and transit supportive.
In regard to intensification policy the Tribunal prefers the evidence of Mr. Wellings, that the effect of the proposed development, Areas A-D conform to policies in the GP which speak to focusing growth in the delineated built-up boundary.
The Tribunal finds that the Applications support the achievement of complete communities and will offer a mix of residential land uses and housing options, provide an opportunity for existing and future residents to purchase a home in the Millcroft community, and support a more compact built form that is compatible with the existing community and appropriately responds to the impacts of climate change
The 6 storey building is directly across the street from a high school, a public library and some of the best recreational space in the city.
The Tribunal prefers the evidence of Mr. Wellings and Ms. Baron. It has clearly been demonstrated that the natural features will be protected. In regard to the ROP policies and objectives related to lands and specifically trees, the Subject Lands are not considered significant tree covered areas and do not represent economic opportunities related to trees (e.g., logging, maple syrup production).
Findings on Compatibility/Character
The Tribunal prefers the evidence of Mr. Wellings, Mr. Richard and Mr. Montgomery. The expert witnesses testified the proposed development is consistent with the OP 1997.
Mr. Wellings testified, the Millcroft Greens Golf Course is a privately owned and operated recreational and leisure facility that is open to paying patrons of the golf course, but not open to the general public. The golf course has been described through testimony, as a semi-private golf course. While the applications propose to develop portions of the Millcroft Greens Golf Course, the 18-hole private golf course will remain in a reconfigured format
Findings – Parks and Open Space
The Tribunal finds there was no dispute that the Millcroft golf course does not form part of the City’s municipal parks system.
The Tribunal prefers the evidence of Mr. Wellings that the 1997 OP’s policies that are in force and effect, respecting open space do not rely upon and do not require private outdoor recreational facilities to remain in situ in order to service the public space needs of their surrounding communities.
On another:
There will be no need for the Pump House – the pond will be drained.
According to Mr. Wellings through the Justification Report, the existing pond at present has limited storm water management controls and was not specifically designed to provide for such controls. The pond’s current function is to provide for the irrigation needs of the golf course. Quality and extended detention controls are not currently provided.
I apologize to the Gazette and readers for some strange mixup in the fact check and copy proof of my comment that needs to be corrected. There are only 2 or 3 small errors, but they need correcting
I will rewrite the comment and resubmit in whole, and rely on the graces of the Gazette to replace it in copy. It is hardly different and only in sensibility, and not at all in the point of the comment.
START.
This opening statement is demonstrably based on lack of direct experience at the OLT table and Hearing process, over-presumption of personal knowledge, assumptions, and flat assertions of facts that are not true.
The idea, put by the author, that self defined, and appointed by the Member, “expert witnesses”, who are all we and the Member are allowed to hear, and we must and just accept it, as the author puts it, ‘as rational and reasonable thinking’, is justified, is naive and void of value in the context being considered.
In this context, the province is calling the shots when it comes to decisions made by the Tribunal because they make the policies, and the laws by which the OLT is played out. And the author fails to recognize that the so-called expert witnesses can say what they want and therefore their prejudices play out.
The author tells us totally uncritically and unqualified that Tribunal decisions are generally and always based on the evidence of the expert witnesses. That is the point of this story being dangerous in my opinion, as I have said.
I have seen many highly biased testimonies and a lot of cherry-picking of evidence out of vast policy and evidence papers for something to tip the Member, particularly when witnesses don’t know right then, as in this case, there is not a solid policy, and especially legal, by-right basis favoring one side for development.
The province makes the laws and rules which control the issues and evidence, which make the decisions. The Tribunal and witnesses are all on the record as saying this in every Hearing. So the decisions come out of this.
In this case I agree (doesn’t mean I like it) with the Member and Glen Wellings, and Blair in comment. Wellings made the case on existing legal grounds that the Golf Course owners have property rights and can apply for a development of some sort and, which is what they did.
In this policy and rules context, the current home owners are not entitled in their deeds to a forever golf course in all respects that are at issue. The Golf Course owner has some development rights that he can seek to exercise.
That is what he is doing. His planner Wellings testified to these rights, argued them, and defended them, and succeeded in getting a decision that the Member balanced.
It was not the time for the OLT to refuse intensification, property rights, house building, and a lot of other things that flow out this. The home owners still have a golf course, but I don’t know the details.
It is based on the property rights law in this case. It was not primarily determined by expert witnesses not having these rights in place to stake out.
I’ve been cycling from Mountainside to the Pump House for many decades since Millcroft was built. I always thought the pond was for flood control and water management as well as other golf club uses. Now it seems it doesn’t figure into
the flood control plan, so I guess I’ve learned something from this OLT hearing.
I’ve joked that the Pump House was Burlington’s newest ruin since they stopped the water wheel from running. Now it seems it may actually turn into a ruin.
In the end capitalism always boils down to make or save a buck for the shareholders and not much else. Money always talks.
For two years (more or less) I’ve asked the members of the two Millcroft groups whether or not there was some provision for development of the golf course in the original purchase agreements. There was never a response – stoney silence.
Now I have my answer and it is as I suspected. Tell me Millcroft folks, when is a deal not a deal? And please don’t give me the ‘flood plain’ argument – that came after you originally opposed the development.
And when one of the groups is found to have ‘doctored’ evidence in the process.
To paraphrase the ‘knights of the Garter “honte à toi je pense”