By Pepper Parr
January 6th, 2023
BURLINGTON, ON’
The Ontario Land Tribunal issues an order that puts a halt to the plans to redevelop the Waterfront Hotel site.
What was it all about?
There is a short version and a long version of this story.
Darko Vranich
The short version is that the developer, Burlington 2020 Lakeshore Inc., owned by Vrancorp which is controlled by Darko Vranich.
The owners of the Waterfront Hotel, Vrancor Group Inc., made an application to the city for a change to the Official Plan and a change to the zoning of the property which was on Lakeshore Road at the bottom of Brant Street.
The application was filed (all the relevant dates are set out below in chronological order) on October 22nd, 2021.
The Planning department reviewed the application and sent a report to council saying the application was not complete and therefore should not be approved.
This is where the words “made” and “received “become part of the story.
The City argued that “received” and “made” are different words and that it is impossible for an application to be “made” before it is “received” by a Municipality. The City stated an applicant cannot “make” an application until the Municipality “receives” the materials in support of the application.
And that is where the application ran afoul of the rules.
Because between the date that the development was first filed – and found to be incomplete and the date that a complete application was filed the Minister of Municipal and Housing change a key document – which he had the right to do.
That’s the short version. If you like getting into the weeds – read on.
There are three different levels of government involved in the settling of this issue: The province where the Minister of Municipal Affairs and Housing has jurisdiction.
The Regional government which is required to have an ROP (Regional Official Plan) that the Minister of Municipal Affairs and Housing approves.
The city has an Official Plan that must comply with the Regional Plan
Located at the foot pf Brant Street on Lakeshore Road, the two towers would have loomed over Spencer Smith Park.
The development application was submitted by Burlington 2020 Lakeshore Inc. to demolish the existing hotel and restaurant and construct a new mixed- use building in a 2-tower format atop a 5-6 storey podium, with tower heights ranging from 30-35 storeys, and associated underground parking.
The arguments as to whether the application was acceptable were heard by video hearing November 1, 2022 before Ontario Land Tribunal member D. Chipman. Regional Municipality of Halton, Bridgewater Hospitality Inc. and The Pearle Hotel & Spa Inc. were part of the proceedings
While the OLT hearing began when the city brought before the Tribunal a Notice of Motion dated October 7, 2022 it was the events that took place much earlier that brought things to this point.
This was the Urban Growth Centre boundary in place before the Minister of Municipal Affairs and Housing moved the boundary closer to the Burlington GO station
Through the motion, the City was seeking a ruling by the Tribunal that an application “made” under the Planning Act is only “made” once all materials required to be filed with the City
The date the Applications are “made” will determine whether the Urban Growth Centre (“UGC”) policies of the Halton OP apply to these Applications.
This was the battle ground – a site labelled as ground zero for Burlington by the developers planning consultant.
The motion is made in the context of the decision of the Minister to approve ROPA 48 with modifications, pursuant to his authority under the Planning Act. The Minister’s Decision moved the UGC in the Halton OP from Downtown Burlington which included the Waterfront Hotel property, to an area centred around the Burlington GO Station, which did not include the Waterfront Hotel property.
The Minister’s Decision included a transition provision, which deems the UGC policies in the Halton OP continue to apply to applications “made” by an applicant on or before the date of the Minister’s Decision, which was November 10, 2021) If the lands that are the subject of the application (Waterfront Hotel) were within the UGC prior to the date of the Minister’s decision. The development application was deemed to be complete on December 17th.
Chronology:
In August 2020, the City requested that the Region adjust the boundary of the Downtown Burlington UGC to generally align with the lands in proximity to the Burlington GO Station.
February 2021 – Region released ROPA 48 for public review. The draft instrument under consideration at that time proposed to shift the Downtown UGC north and remove the Downtown MTSA with no transition provision for existing applications being proposed.
April 28, 2021 – the City attended a pre-consultation meeting with the Applicant to determine the requirements for complete Applications to facilitate the Applicant’s proposed development on the Subject Property.
May 5, 2021 – a pre-consultation package that was provided to the Applicant which identified materials required to file for the Applications to be deemed complete.
June 9, 2021, and June 16, 2021 – public consultation meetings were held.
July 7, 2021 – Halton Council adopted ROPA 48, which introduces 96 amendments to the Halton OP including Strategic Growth Areas, such as UGCs, Major Transit Station Areas (“MTSA”), Regional Nodes and Employment Areas.
October 22, 2021, Developer files application which included the 29 materials, reports, and studies required. These materials included a Planning and Urban Design Rationale Report, dated October 2021.
October 26, 2021, the Applicant submitted the fees required to be paid to the City in connection with the Applications.
The Urban Growth Centre was moved north – because of the date that decision was made and the date on which the application to redevelop the hotel site was submitted the future growth in the downtown core will not be the same.
November 10, 2021, the Minister approved ROPA 48 with eight (8) modifications, w On
November 10, 2021, the Minister approved ROPA 48 with eight modifications that included the relocation of the UGC from Downtown Burlington to the area centred around the Burlington GO Station which meant the hotel site would no longer be within an UGC or a MTSA..
Steve Clark, Minister of Municipal Affairs and Housing
The Minister’s Decision was final and not subject to appeal
November 23, 2021 – Burlington staff delivered a report recommending that Council deem the Applications incomplete, since certain required information and materials identified in the pre-consultation package had not been provided to the City by the Applicant. These included: (i) a Phase Two Environmental Site Assessment; (ii) a Park Concept Plan; and (iii) an Angular Plane Study.
November 23, 2021– the City notified the Applicant in writing that the Applications had been deemed incomplete on the basis that not all of the information and materials required by the Planning Act and the Burlington OP had been submitted.
December 17, 2021 – The Applicant files the additional information and materials.
December 22, 2021 – Applicant filed a motion with the Tribunal seeking a determination by the Tribunal that the Applications, as filed on October 26, 2021, were made as of that date.
January 18, 2022 – Burlington Council at its meeting of January 18, 2022, deemed the Applications complete as of December 17, 2021
During the hearing Counsel for the City stated that the Applications did not meet the requirements as set out under the Planning Act, prior to the Minister’s approval of Amendment 48 (November 10, 2021). The City stated its position that the Applications, as required by the Planning Act and the Burlington OP were only “made” once all materials been submitted.
The Planning Act and deems that an application is only “made” once it is complete.
City Counsel outlined that this information and material can include, without limitation, the reports, studies and other documents listed in the Burlington OP.
The City submitted that “received” and “made” are different words and that it is impossible for an application to be “made” before it is “received” by a Municipality. The City stated an applicant cannot “make” an application until the Municipality “receives” the materials in support of the application.
It was the City’s position that the Minister’s Decision, made on November 10th, expressly provides that an Official Plan Amendment application is not “received” until all of the information and materials required to be provided to the Municipality are, provided.
Counsel emphasized that the additional information and materials outstanding were provided to Burlington Council through a Planning Report at its meeting of January 18, 2022.
In its decision the Tribunal said: Having been provided a very thorough chronology of the submissions by both the Applicant and the City, the Tribunal prefers the position of the City and in doing so, grants the Motion.
THE TRIBUNAL ORDERS that the Official Plan Amendment and Zoning By-law Amendment applications filed with the City of Burlington by the Applicant Burlington 2020 Lakeshore Inc. with respect to its lands at 2020 Lakeshore Road are hereby deemed to have been made on December 17, 2021, subsequent to the decision dated November 10, 2021, of the Minister of Municipal Affairs and Housing approving and modifying the Region of Halton Official Plan.
That was it. To proceed with the development Vrancorp would have to file a new application.
Expect the Tribunal decision to be appealed – in the meantime nothing gets built – no shovels in the ground.
But maybe an opportunity to take a deeper look into just how Waterfront Hotel site can best be developed to keep everyone happy.
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Think of all the money being spent on this. There are many better uses for this money – helping homeless, health care, eduction, climate change. Burlington is spending endless resources fighting condos in the downtown because a small group of people don’t “like” them. Very wasteful and sad.
This council was voted in back in 2018 with a mandate to fight the over intensification of the downtown. A mandate reconfirmed this past October. If you are opposed then, if you didn’t, you should have voted for a different ward councilor and mayor. If you did vote, your position did not prevail. That’s democracy!
If you wish the City to do more in other areas delegate to Council during the budget engagement process and seek a higher tax levy to pay for them. You should also be lobbying the Provincial government which holds the purse strings and has recently tightened through thebelimination of development charges.
‘This council was voted in back in 2018 with a mandate to fight the over intensification of the downtown. A mandate reconfirmed this past October.’…Most people this past election voted to keep their home equity high, by voting back in councilors and mayor who would stop new development in region…had nothing to do with the condos downtown. Ward already screwed that all up. Now people are seeing the reality with province having to come in and open development up.
It is indeed unfortunate that the city chose not to use Outside Council to defend some of the other appeals in the downtown core that have gone of the OMB/LPAT/OLT .
It is apparent that those appeals that were handled “in house” failed.
We at Citizen”s PLAN B are pleased with this OLT ruling, but have no delusions that it marks the end of this application. We are however very encouraged, having participated in the November 1st OLT hearing, that the City’s legal team under the leadership of Osler’s Chris Barnett is very competent, organized and thereby capable of effectively defending the City’s refusal of Vrancor’s application for a 30 & 35 storey development with a 6-storey podium (in whatever future form that over-development may take) before the OLT. It is what we have advocated for from the beginning; hire a “top gun” lawyer. Has it cost the City $500k to-date and probably 3-4 times that by the time it’s all settled? Probably. But what’s being proposed in Vrancor’s current application will (in our opinion) destroy the Burlington downtown/ waterfront community, which will be at a significantly higher long-term cost.
Let’s not forget that the city used outside council to represent them to the tune of $500,000.00. Wonder if this will cover the cost of the appeal that will definitely be coming?
For coming up with, “received” and “made” are “different” words? That’s a $250,000 per word tutorial and a short lived victory. Cha ching.
Pure speculation on both.
It’s not simply semantics. The developer submites the application, but until the city formally “receives” it, it is not a completed application. The city sent it back because it was incomplete, so it was “not received”. By the time the developer completed the application the Minister had approved the UGC boundary change. The argument then became which boundary should apply? The Developer wanted UGC at the time application was originally submitted to apply. The OLT ruled that UGC when application was properly “received” had to apply. So it is more about the timing of the UGC boundary change than a simple rewording.
Council and City planners worked hard to get the MTSA changed, which changed the UGC Boundary.
Might be interesting to see how the ruling impacts the huge number of backlogged applications that were ” made” by developers in haste during 2017/2018 to get ahead of OMB changing to LPAT (now OLT) and as a new anti-developer council was incoming. There are still lots of them on the books.
Jim, I suggest you don’t hold out hope for further victories where a complete application was received prior to the date of the minister’s decision to move the UGC boundaries.
Any application received prior to that date will be adjudicated based upon UGC, MTSA, OP in effect at the date the application was received.
I stand to be corrected, but I believe the Waterfront Hotel application is the only downtown core application affected by the change in UGC boundaries.
So that does not bode well for positive outcomes from other OLT appeals.
Hi Dave, I’m just cynical enough not to hold out hope for anything controlled by Ont Cons Govt and in the end, all municipal planning decisions are made at OLT these days, subject of course, to overrule by Ministerial Zoning Orders. So while the OLT ruling on the Waterfront Hotel development may rest on sound legal/planning parameters … watch out for the MZO.
And ….. What happens if Vrancor submit a whole new ammendment application? With new parameters purposely going beyond current City and Regional plans? Then appeal to OLT when it is rejected by City? Would be time consuming but if the ROI is still there, might they?
Correct me if if I am wrong. But it seems to me that Vrancorp, will, perhaps having read this, now knows that “received” and “made” are “different” words. Having learned from that valuable spelling tutorial, they will make sure the next application is “received by the Municipality before it is “made”. Sure hope I got that right.In any event please enjoy Abbott & Costello’s, Who’s On First.
This is good to see. Ward will likely want to attach her name to this decision, but remember she has done absolutely nothing but cause many high rises to go up in the downtown area due to her incompetence as mayor. Stopping the development from moving forward was those good residents and planning representatives that fought hard against this.
Surely the work done by present Mayor, Council and City Planning Dept to change the Major Transit Station Area designation from the Downtown Bus Terminal to The Fairview GO was what facilitated the
Moving the Urban Growth Centre boundary further north away from Lakeshore area.
The timing of the application “made” / “received” argument and decision by OLT are based on when these redesignations came into effect.
So while this may well be overturned on appeal, for now it is a victory for City Council and Planners with a shout out to the Plan B citizens group who have advocated for this for many years.
Mr Dimoe continues his disrespect towards the mayor by not using her correct name. Shameful!
This victory was a direct result of the work of the Mayor & City Council as a whole by way of
* Removing the MTSA designation from the John St bus terminal,
* Moving the boundaries of the UGC further north.
* Passing a Provincially compliant OP
* Lobbying the Provincial government
Please, Failed Candidate Dimoe, have some grace and congratulate the city on a hard won but very, very important victory.
After years of cities being trampled on by the OMB/LPAT/OLT on behalf of developer’s lawyers and deep pockets, a minor victory. Which of course will be appealed, despite there being “no appeal” allowed of the Minister’s decision. More public money will be chewed up by happy lawyers and years will go by before this is resolved. When, oh when, will the century-long farce of the OLT be abandoned in favour of making the Provincial government responsible for making planning decisions out in the open, and suffer the political consequences as appropriate?