By Pepper Parr

June 10th,  2020

BURLINGTON, ON

 

There is a massive development planned for Fairview Street – just east of the Burlington GO station.

It is the biggest development ward 2 has seen – the only development bigger is the Georgian Courts in Aldershot. In that situation it is the complete redevelopment of an existing community.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The former Holland Nursery lands are now known as the Holland Park development, a tribute to the garden supplier that was on the site for years. It is on the North side of Fairview.

The lands are owned by a joint venture announced in June 2019. Brookfield Property Group joined a partnership with InterRent REIT and CLV Group to develop a multi-family-anchored, mixed-use project.

Because the development meets the current Official Plan and the zoning for the area it doesn’t have to go before City Council. It does have to undergo a Site Plan Review – that process is managed by the Planning department and they aren’t required to hold public meetings.

In an interview in March with ward 2 Councillor Lisa Kearns we commented on the heights that will be permitted and the density.

We asked at the time why the development wasn’t on the list of properties being developed.  Kearns told us that it met wit the Official Plan and the Zoning – all the city had to do was review the Site Plan and that was not a public process.

There is no maximum height for buildings on the site – the sky is the limit.

Kearns said that her “own platform position was to work towards a collaborative relationship.”

In her discussions with one of the partners, the CLV Group; known apartment operators in the city Kearns said there was mention of a possible curling rink.

We asked Kearns if she had any concerns about the 47 storey height the developer had asked for.  Kearns replied “Over my dead body”.

Due to the size of the development and the impact it will have on that part of the city the public will want to have the opportunity to make some comment.

At this point public input has come from the ward Councillor and people she has chosen to involve. Kearns has not identified those people.

The review of the site plan is in the hands of the Planning department where a senior planner manages the file

However, there is a process where Council can undelegated the authority the Planning department has to proceed with the Site Plan Review.

They just pass a motion undelegating the Site Plan review – which means that Review is overseen by Council.

Kearns hasn’t made any mention of getting this site Plan Approval put in the hands of Council where citizens can look at what is being proposed and delegate to comment on the plans

The Gazette asked the Planning Director Heather MacDonald how this might be done. Jamie Tellier, Manager of Planning Applications,  responded through Kwab Ako-Adjei, Director, Corporate Communications & Government Relations who wrote:

“The approval authority for site plan applications is delegated to the Director of Community Planning. Notwithstanding this, Council can “undelegate” the approval authority for a specific site plan application from the Director of Community Planning back to Council.”

The Gazette was not permitted to talk to Tellier directly.

In a recent Newsletter ward 2 Councillor Lisa Kearns said: “Many residents are taking a keen interest in the lands for development near the Burlington GO – casually known as ‘Holland Park’. ”

“The owners have been working with City staff to develop the plan over the past 2 years. Meetings included Planning pre-consultation, Burlington Urban Design Review Panel, public site walking tour and several other informal meetings with various City of Burlington departments.

“My Councillor Office has met with the applicants in 2019 and 2020, as captured in the Ward 2 Business Meeting Registry.

“There is a proposed phased mixed-use development consisting of 7 towers with heights ranging from 29-37 storeys. Towers will include a combination of residential and commercial uses. Parking will be accommodated both underground and at the rear of the property in a parking structure utilizing the required 30 metre setback from the rail.

“The site is an 8.5-acre parcel located east from the Brant and Fairview main intersection – within 250 and 500 metres of the Burlington GO Station (3-5-minute walk), which is recognized under provincial policy as a Priority Transit Corridor and a Gateway Mobility Hub.

“The proposal features a public realm experience that includes a linear park located on top of the parking structure, Public Park, focal intersection at the heart of the site and POPS (privately owned public space).

“This site is zoned MXT in the City’s existing zoning bylaw, which is a Mixed Use Corridor zone in proximity to the Burlington GO Station.

The MXT zone does not have an established maximum height in the existing zoning bylaw. This application will be reviewed in accordance with the City-initiated Zoning By-law Amendment 2020.418 that resulted from the findings of the 2019 Interim Control Bylaw Land Use Study and which was approved by Council on Jan. 30, 2020.

“Zoning By-law Amendment 2020.418 requires a maximum building height of six storeys within the first 10 metres of Fairview Street and Drury Lane to ensure that future development will achieve an appropriate transition to adjacent areas through a mid-rise, pedestrian-scale built form along these streets.

“However, this Zoning Bylaw amendment is currently under appeal and therefore the Interim Control Bylaw (ICBL) is still in effect. As a result, no approvals will be granted until the appeals have been resolved and the ICBL is no longer in effect.

Kearns adds: “ This is one of the rare sites in the City of Burlington where the applicant intends to comply with the Zoning By-law, the site is zoned MXT. This means that a development application proceeds straight to Site Plan – which it now has – and does not follow the process many are familiar with.

In contrast, when a Zoning By-law Amendment is requested, the proponent will go through community meetings, a statutory public meeting, and receive a planning recommendation report for Council to vote on. None of these steps are required for applications that are in compliance with the regulations of the Zoning By-law – as is the case for the lands known as “Holland Park”.

“For the property including 2243, 2269 Fairview Street & 864 Drury Lane, a subject Site Plan Application was deemed complete and materials have been circulated internal and external review.

“Currently in the review phase, this file has not come to the Councillors office for comments as of yet, nor is there an established timeline to announce, including what the impacts of the ICBL on the site’s zoning.

“Residents have inquired why this development is not available for public review on the City of Burlington website Current Developments – Ward 2. This is because, unlike a Zoning By-law Amendment and/or Official Plan Amendment, Site Plan Applications are not a public process under the Planning Act.”

But the Site Plan Review can be made public – if the Councillor asks her colleagues to approve a motion to undelegated that work and put it in the hands of Council where the public can be included.

“As Councillor, I know how important it is to keep the community informed and engaged on such a significant development” said Kearns.  “I intend to continue a collaborative approach on this development and bring options to create a complete community with useful the facts amenities on an established transit line. In all likelihood, this will be a size and scale unseen in Burlington, potentially bringing with it anxiety and unrest; without doubt there will be lessons learned to apply to future applications.

“I continue to work with City Staff on new ways to provide the public with technical information and timely progress updates. It is important to be clear that the applicant is working within the existing zoning (set by previous Council) and that decisions on height and density will not come before this Council to grant planning permissions. That said, I remain optimistic and diligent that this development can be done right.”

It could be done very right if the Councillor includes all the public and not just her chosen few.

By Pepper Parr

April 22nd, 2020

BURLINGTON, ON

 

In a Statement published in the Mayor’s Newsletter – A Better Burlington – Mayor Meed Ward wrote:

City Council, at a Closed session accepted a proposed revised plan for a townhouse and semi-detached development at 2100 Brant Street. The proposal will be decided by the Local Planning Appeal Tribunal (LPAT) at a hearing scheduled in July.

The original proposal was for 12 townhouse blocks with a total of 83 units and three condominium townhouse blocks with 150 units, for a total development of 233 units. There was no parkland. Also included in the applications are a woodlot block as well as a natural heritage system block. The proposed development site has a total area of 11.1 hectares (27.2 acres). The developable area is 5.04 hectares.
The land is currently vacant and has been historically used for agricultural purposes.

The former City Council had approved a revised proposal in November 2018, before the new council was sworn in but after the election when 5 of 7 members of the previous council were not returning due to defeat or retirement.

Current City Council rescinded that plan in December 2018 in an effort to give residents, staff and the applicant additional time to improve the plan and come to a consensus on a revised development.

A group of citizens, primarily representing residents in the neighbourhood north of the development, formed Vision 2100 Brant Neighbours Association, an incorporated group that received Party status at the LPAT hearing to present evidence on behalf of residents.

Representatives of the townhouse condominium board immediately to the south of the project had earlier issued a letter of support for the November revised proposal, considering their issues (primarily around setbacks and drainage) to be settled.

City Council and Vision 2100 received a revised proposal in March 2020. This proposal was provided directly to the Vision 2100 citizen’s group at a meeting March 10 with the applicant and Ward Councillor. The proposal was further discussed April 2 via teleconference with Vision 2100 representatives and the Ward Councillor and Mayor, to seek citizen input on the proposal.

To date, Vision 2100 has not provided any suggested changes or feedback on the proposal, but did raise additional questions around parking, snow storage, traffic, and storm water management. These were answered by the applicant by email to the residents (see background below), and addressed in the revised proposal to the city’s satisfaction.

The new proposal improves on the original application as well as the November 2018 proposal with the following changes:

Reducing the unit count from 212 to 210 (down from 233 in the original proposal)

In the Northwest area of the development on both sides of the Almonte Drive extension, replacing six 2-storey townhouse units with 4 semi-detached 1.5 storey bungalofts

Increasing setbacks from the homes to the north, from 9 metres to 10 metres; in some areas the setback is 11 metres

Increasing the senior-friendly units with ground floor bedrooms to aid accessibility, from 7 to 16 units

Provision of a 0.3 hectare (0.76 acre) centrally located Public Park.

City council voted to accept the revised proposal at the council meeting of April 20, 2020.

The details of that March plan, and the planning justification for supporting it provided by city staff, are included in the planning staff analysis here: 2100 Brant Planning Analysis

Unlike the vast majority of municipalities, Burlington releases the planning analysis for matters which the municipality is supporting approval of by the LPAT, in advance of the hearing. This policy change was implemented by the new City Council to ensure maximum transparency with residents about the basis of our decision-making.

The final decision on the revised proposal will be made by the LPAT. The city and applicant will appear in support of the proposal.

Vision 2100 is a registered Party to the hearing which gives them the right at the hearing to call evidence (witnesses, studies or both) to refute or support the proposal, cross examine city or applicant witnesses, or suggest further modifications to the proposal. The City of Burlington, the applicant (National Homes) and the Region of Halton are the other registered Parties to the hearing. There are two registered Participants to the hearing who can provide feedback at the hearing as well.

Details on the original application submitted in 2017, revisions to the proposal, and details of the LPAT hearing are available on the project page for the development here created when the application was received: Current Development Applications, Ward 1, 2100 Brant St

Below is additional background, answers to some questions and a statement from the Mayor and Ward councillor.

Statement from Mayor Marianne Meed Ward and Ward 1 Councillor Kelvin Galbraith on 2100 Brant:

Resident input over several years, including the work of Vision 2100, has improved this application for the better, and we thank them for that.

Though the most recent proposal may not be exactly what residents or Councillors were hoping for, it does include more green space than the original proposal, including a new park, fewer units, less height and density, more variety and senior-friendly options, increased setbacks and better transition to the neighbourhoods to the north and south. The recent questions raised by residents around parking, traffic, snow storage and storm water management have been addressed.

In accepting the revised proposal, council considered a number of factors, including public input, the improvements made that addressed some of the concerns raised, the planning justification provided by staff, and advice from legal counsel.

Our decision also factored in some practical realities, including the inability to secure a planning witness that was of the opinion that the November 2018 proposal did not overall represent good planning, the likelihood that a hearing would not produce a different result, and the possibility that city taxpayers could be required to pay the entire costs of the applicant at a lengthy hearing. In addition, city staff who supported the November proposal would likely have been required to testify on behalf of the applicant, at city taxpayers expense.

We also considered that notwithstanding council accepting a revised proposal, there remain options for continued public input, especially for Vision 2100, which can provide feedback or modifications on the revised proposal, and/or proceed as a party to the hearing and call evidence and witnesses.

We believe we achieved the best outcome possible for residents in this case, and your input directly made that happen.

Background and Answers to Questions:

How has public input been gathered on this application?

This application has been under review since 2017, with multiple points of public input along the way. A citizen’s group, Vision 2100, was formed to represent the concerns of residents primarily north of the development site. A citizen’s group was formed to the south to represent the interests of the townhouse development to the south. They submitted a letter of support for the November 2018 revised proposal.

The applicant met with the public over 12 times in that period, in either organized public meetings or smaller resident meetings.

There was a neighbourhood meeting Oct. 12, 2017, a statutory public meeting April 3, 2018 where residents presented detailed feedback and suggested modifications to council. Some council members at the time remarked that they were the best and most comprehensive presentations they had heard. There was a further open house to discuss revised plans July 17, 2018.

Throughout 2019 there have been numerous additional consultations with the applicant, city staff and Vision 2100, individually or as a group, to address the remaining concerns of the community. They included general over development of the site with related issues, and the interface of the development to the single family neighbourhood to the north, at Almonte Drive/Belgrave Court/Havendale Blvd.

In February 2020 the applicant advised it was prepared to make changes to the plan to address the resident concerns. In March they submitted a revised proposal to Vision 2100, and city staff. City Council received the proposal in early April.

How is public input reflected in the final proposal?

Since the original application, there have been at least 11 major revisions as a result of public, staff and council input, including a reduction in units, increased parkland, increased setbacks from the neighbourhoods to the north and south, reduced height of some units and conversion from townhouses to semi-detached, and provision of accessible, senior friendly semi-detached bungalofts. There have been three different proposals including the most recent one.

The proposal was provided directly to the Vision 2100 citizen’s group at a meeting March 10 with the applicant and Ward Councillor. The proposal was further discussed April 2 via teleconference with Vision 2100 representatives and the Ward Councillor and Mayor, to seek citizen input on the proposal.

To date, they have not provided feedback on the most recent proposal, but they did raise several outstanding questions via email related to traffic, parking, snow storage and storm water management. These questions were raised with the applicant by the Mayor and Ward Councillor on residents behalf, with the response as follows:

Traffic on Havendale, Fairchild and Brant St. Was a traffic study produced and taken into account? ANSWER: A traffic study was provided to Vision 2100 previously with the analysis describing the difference of a single family development and a townhouse development completed by a professional traffic engineer, outlining that a single family home development would generate more traffic. City staff reviewed and supported the findings of the study.

Parking, no street parking on private roads and limited visitors parking. Where do visitors park? ANSWER: Visitor parking is provided in the development on both public roads interior to the site and private roads as detailed in the attached site plan (also provided to Vision 2100).

The Zoning By-law requires 54 visitor parking spaces, whereas 59 are proposed. In addition 25 on-street parking spaces could be accommodated along the Almonte Drive extension.

Snow removal. There is no room to pile snow. Does the City have a plan to resolve that problem? ANSWER: The site plan attached to the revised proposal identifies areas where snow storage will be designated, in the bottom left and top right areas of the development.

Storm Water management. This has been a serious issue for the residents, based on actual flooding experiences where the empty lot at 2100 Brant served as a sink which helped to mitigate the flooding. Now there will be no sink because the area will be developed. The proposal is for an underground collection system with tanks which can be drained into the existing stormwater sewer at Brant Street. The question is, will there be enough capacity to accommodate two major rain storms in a row and will the system work properly? ANSWER: The design was prepared by a professional engineer based on their experience and history of developing many projects within the GTA with a similar design. Burlington City engineering staff had their professional engineers along with the Region of Halton’s professional engineers review the design of the system and both have been satisfied.

Why was this appealed to the Local Planning Appeal Tribunal?

Developers and residents have equal legal right in Ontario to appeal any decision of city council on a development matter to the LPAT, to seek a different decision.

Further, an applicant can appeal to the LPAT if the municipality exceeds the provincially mandated timelines to make a decision, which at the time of this application were 180 days.

The applicant, residents and staff agreed to continue to work together on the project beyond the 180 day time frame to try to come to a better outcome, thus setting aside the deadline. This application is now in its third year of review.

However, this changed when the previous provincial government announced it was making changes to the LPAT (then called the Ontario Municipal Board) to restrict what could be appealed and giving more priority to local council decisions. The current provincial government rolled back those changes so the LPAT functions essentially the same as the OMB did.

However in that transition period thousands of applications across the province, were preemptively made to preserve rights to a hearing under the old OMB rules, including this one which appealed using the tool of “non decision” within the deadline, because council had not made a decision within the 180 day time frame.

What happens now?

This application and the proposed revised plan will be heard by the Local Planning Appeal Tribunal (LPAT) at a 12-day hearing scheduled to begin July 27. At that hearing, the applicant and city staff, based on City Council’s instructions, will jointly be requesting that the LPAT approve the revised application.

Due to COVID19, the province has cancelled all hearings till the end of June, but that does not apply to 2100 Brant Street as it is beyond that window of time. As such, all parties to the hearing, including Vision 2100, are required to produce evidence and experts to refute the application and revised proposal if they wish to challenge it.

To date, neither the city, nor Vision 2100, were able to find a planner to refute the proposal. This would leave the city without a witness at the hearing, compromising any ability to reach a different outcome at a hearing than the proposed application. In addition, city staff would most likely be called by the applicant to support the proposal, as they initially recommended approval of the November 2018 proposal. This factored into council’s decision to accept the third revised proposal as the best outcome possible, and an improvement on both the original and November proposals.

Entering a hearing without a witness could have also led to an award of costs against the city for the applicant’s expenses of the entire 12-day hearing, saddling taxpayers with a significant bill with no improvement in the outcome of the development. This also factored into council’s decision.

What are the opportunities for further public input on this application?

The next steps and opportunities for further public input at the hearing are detailed below, and were outlined via email to Vision 2100 from the Mayor and Ward Councillor April 10.

Vision 2100 has party status at the hearing. They can present evidence at the hearing regardless of whether any other party enters into a settlement. As such, they retain the opportunity (and obligation as a party) to call evidence against the revised proposal if they are opposed.

An issues list identified for the hearing outlines the issues raised by the various parties. The list is available on the project page on the city’s website. Issues list, attachment 3

There are four parties to the hearing: National Homes, City of Burlington, Vision 2100 and Region of Halton. On the issues list there are 16 issues cited by the city and Vision 2100 (Items 1-12, 14-17); 4 issues cited solely by Region of Halton (Items 13, 18, 19, 21), one issue cited by Region of Halton and Vision 2100 (Item 20), and 2 issues cited only by Vision 2100 (Items 22, 23).

We understand that Vision 2100 has wanted to see the city’s response to various issues and concerns to use in their own efforts at a hearing. Given that city staff previously approved the initial, and the modified (Nov 2018) application, and recommended approval of the March 2020 proposal, any concerns can assume to have been resolved to the city’s satisfaction.

The bulk of the issues raised by the city relate to planning justification matters. These were resolved to the city’s satisfaction, as outlined in the planning justification analysis

Any party can withdraw its issues or settle. Where issues are jointly raised, if one party withdraws from an issue, the remaining party to that issue can still raise it as an issue at a hearing.

Thus, regardless of the actions of the other parties, Vision 2100 retains the option in a hearing to call its own evidence on any of the issues they are listed under, as noted above.

According to the LPAT procedural order, where there are multiple parties listed beside a single issue, those parties have the option to call one single witness together to deal with that issue. This has led to some confusion that the city would call evidence and pay for it on behalf of Vision 2100. That is not the case, as each party remains separate. The City has been clear with Vision 2100 throughout the appeal process that each party, although having the same issues, was separate and should prepare to call its case separately in the event that one of the parties reached a settlement of the appeal.

If the city chose to call evidence on a particular issue, Vision 2100 could rely on that evidence themselves, rather than hire a second individual. If the city did not choose to call evidence, Vision 2100 would then be required to do so themselves. Each party retains independence, with the option to collaborate.

If one of the parties withdraws an item as an issue, or deems it settled and taken care of, the responsibility would be with the remaining party to call its own witness at the hearing, if that party believed that issue has not been resolved, based on their own expert review.

The format of the hearing is that each party must call its own witnesses to support their position of whether or not the application as presented should be approved; each party has the ability to cross-examine the witnesses provided by any other party. The documents in support of the application have been publicly available online since 2017, and residents can review this in advance of a hearing to plan their response. The planning analysis from the city is now also available to residents to plan their response.

A party to the hearing can produce their own evidence to refute the application, and would have opportunity at a hearing to ask questions of others. Regardless of whether there is a settlement, Vision 2100 has this opportunity to ask questions at a hearing, but also an obligation to produce its own evidence for any issues that Vision 2100 has identified on the Issues List.

Summary of options for continued public input:

1. Vision 2100 can undertake to hire their own experts to respond to the material that has been provided by the applicant and is publicly available online. This review may satisfy the concerns raised, or lead to suggested modifications which could in turn be requested of the applicant. Understandably, this is a significant financial undertaking, and may not be feasible.

2. As a resident’s group and as a party to the hearing, Vision 2100 has a unique opportunity to provide a direct public voice on the revised proposal, which they have not done yet. Vision 2100 has an opportunity to review the revised proposal, determine if it satisfies the concerns raised and if not suggest modifications.

3. If the proposed modifications are not accepted, Vision 2100 also has the option to proceed to a hearing, with the obligation to hire experts to refute the applicant’s material (which is publicly available online) and present new evidence in support of any additional proposed changes.

Did the city follow proper planning process on this application?

In dealing with this application, the city has followed the provincial planning process, which is not unique to Burlington but is required across Ontario. The process allows any party independently to determine whether or not its issues have been resolved.

The process allows any party to determine that its issues have not been resolved and proceed to a hearing, but in that case would need to present its own evidence to refute the application.

What is City Council’s role?

City council has an obligation to review and consider any revised proposal. In reviewing the proposal, we consider input from our planning and legal team, the applicant, as well as resident’s groups or individuals. The public is represented in this process in a variety of ways, including through your elected representatives and our voices carrying your input/questions forward, as well as any direct input you have provided to the city, applicant and elected representatives.

Your elected representatives also undertake to ensure that outstanding questions/issues have been addressed in making any decisions.

All means of public input described above have occurred throughout the processing of this application.

By Pepper Parr

March 6th, 2020

BURLINGTON, ON

 

It is still coming out in dribs and drabs but at least the people who are going to have to pick up the tab for the legal challenges to the January 30th council decision unanimously approving the revised recommendations from the findings of the Interim Control Bylaw (ICBL) Land-Use Study, including the approval of the proposed Official Plan (OPA) and Zoning Bylaw (ZBA) amendments resulting from that study, now know a little bit more.

The Council decision was made before the one-year ICBL deadline of March 5, 2020.

In remarks in the Mayor’s March Newsletter we learn that:

“The recommended OPA and ZBA are the result of an extensive technical review by third-party consultants and City planning staff, public input (including written and oral submissions from the development industry), and Council deliberation.

“Our current Official Plan (OP) is in full legal compliance with all applicable provincial documents, as are its approved updates, after the province’s Places to Grow Act and the density targets that were established and embedded into our OP. This latest update dealt with better defining the Major Transit Station Area (MTSA) that to this point had never been defined.

“Since Council’s decision on Jan. 30, the City’s OPA and ZBA have been appealed to the Local Planning Appeal Tribunal (LPAT). These appeals will extend the ICBL’s development freeze on the downtown and Burlington GO area until they are resolved. It’s important to note, the appeals to the City’s ZBA are what caused the freeze to continue — the OPA appeals would not have.

“The bulk of the number of appeals dealt only with the OPA. If the remaining appeals are resolved quickly, the development freeze would be lifted. It is typical and expected that the most likely course of action may be a grouping of these appeals to LPAT, where they address similar issues. That remains to be seen.

“Official plans are constantly changing. Burlington’s OP has changed 119 times (since 1997). Some of those changes the City initiated, others were developer initiated (those who had applied for OPAs and ZBAs). Plans never stay the same and we have a legal obligation to update our OP every 5 years. Those updates can be through minor tweaks or complete overhauls — Burlington has done both in its history.

“Changing an OP is normal practice, as is the number of appeals and reaction when a significant change to an OP is made.

“In the past, the City of Burlington has found itself in a difficult situation when staff’s and Council’s positions related to our OP differed — that is not the case now. Our City also found itself in a difficult situation when it gave away height and depth to development applications that far exceeded what was in our plans out of fear of being taken to the LPAT. Not only was that precedent-setting, but it sent the message that our City would make significant exceptions at the mere threat of an appeal.

“We’re not doing that anymore. We are now making decisions that are founded on sound planning principles based on evidence and a one-year independent consultant study. That is what residents expect us to do. The City of Burlington did not elect me to surrender. We will defend the policies we created — and were unanimously-approved by Council — vigorously.

“These policies also reflect the vision of staff, council and our residents for the future of our city and we will remain steadfast in our commitment to ensuring the right development in the right place at the right scale.

“I recently received a note from a resident that said they knew this wasn’t going to be easy, but to stay the course — your Council and City staff will be doing just that.”

It is now clear that the Mayor, the senior planning people, the city’s solicitor and, perhaps, whatever outside counsel the city has hired, have spent a lot of time going over the documents – which the public has yet to see.

Whenever politicians withhold information, or slip it out on a Friday afternoon, you know that the full story is not being told.

A tighter look at the Newsletter content tells us that “the appeals to the City’s ZBA (Zoning Bylaw Amendment) are what caused the freeze to continue — the OPA appeals would not have.  Not sure what the relevance of that is – we will talk that over with our planning consultants.

The “bulk of the number of appeals dealt only with the OPA”, which the Mayor tells us can be dealt with very quickly.

We have a Mayor who touts the importance of media but has yet to call a media conference and make herself available for questions.  There was a time when you couldn’t keep the woman away from television camera lights.

Meed Ward was once very fond of using the phrase “truth to power”; haven’t heard that one from her lately have we?

By Pepper Parr

March 2, 2020

BURLINGTON, ON

 

In comments made when the Amendments to the Approved but-not-in-force Official Plan were passed by Council they argued that it took some time to get it right to have an Official Plan that could be defended at LPAT hearings.

In a comment attached to the Media release sent out late last week Executive Director Heather MacDonald, who handles the Planning files, said it is not unusual for there to be appeals to Official Plan changes.

I don’t think she was ready for a total of 31 appeals (and counting?)

Lisa Kearns the Councillor for Ward 2, where much of the planned development is to take place, slipped some comments onto her Facebook page saying it was “important that you know what’s happening at City Hall.” And added that “This week marked the close of the appeal period for the planning policies that were approved by Council on January 30th for the lands in the Interim Control By-law (ICBL) boundaries.

“The ICBL (development freeze) will continue as a result of appeals which prevent the policies from going into effect. It is important that your Councillor provides clear and understandable information about the process. Many have keenly followed this year long process as City Hall sought to address issues of growth pressure and how transit designations affect growth

Why are we here today?
“The community asked me to deliver on pushing the city for a more sensible approach to growth and accountability surrounding development. I have been steadfast in keeping residents up to date on the approach Council has undertaken to achieve this.

“We have made it clear there is no simple approach or ‘silver bullet’ to untangle the complex systems that support planning applications that are not compatible with the community vision. A technical process has delivered solid planning policy that tightens zoning controls which address height maximums and podiums, street line setbacks, active transportation elements (ie: bicycle parking, mid-block corridors, streetscaping elements), and community institutional use.

“Through this process, areas within the ICBL boundaries were identified with no zoning designation, particularly near the Burlington GO. This means that the planning process everyone is familiar with through pre-consultation to statutory public meeting, and council decision do not apply to developments in these areas.

“The result is no public engagement, no community benefits, and no limits beyond the Building Code; applications go straight to technical Site Plan Approval. We have brought tighter zoning controls that the community supports in the land generally being downtown and at the Burlington GO.

What does this mean to Residents?
“Burlington has committed to community responsive growth management that ensures growth respects council approved height and density for land use as set out in its planning instruments. For clarity, this includes the existing municipal planning policies, and any revisions from the Official Plan and Zoning Bylaw (ICBL) studies and recommendations. The resulting policies, that are now appealed, seek to deliver this for residents.

“This means residents can be confident that their elected officials are working in their best interest using the resources and tools best available. We will continue to defend these policies that represent good planning created by independent consultants.”

Councillor Kearns makes no mention whatsoever about what the city is really up against. The public has yet to actually see the appeals that were filed and thus don’t know what the appeal documents say. Nor does the public know who is representing the developers.

Has one law firm taken on the task of asking for the same thing in the appeals or will the city have to face 31 different lawyers?

A resident who managed to have discussions with the developers, said that they are very upset and believe they have a strong case. Only time will tell.

What we do know for certain is that nothing is going to get built inside the boundaries of the Interim Control Bylaw. And that cannot be good for business despite the Mayor’s claim that “Burlington is Open for Business.”

Councillor Kearns asks if the decision to make the Official Plan amendments and the zoning changes “was rushed”.

Her answer is no. Here’s why: “An interim control by-law is rarely enacted by a municipality because of the sheer magnitude of freezing development. Council voted to support Staff’s recommendation to enact this tool in the Planning Act as a response to:

• Growth pressures that continue to emerge for the lands in the study area where multiple pending developments propose intensities that are significantly higher than those anticipated by the 2018 Adopted Official Plan

• The role and function of the John Street Bus Terminal as a Major Transit Station Area (MTSA). Its designation as a MTSA was relied upon by the Ontario Municipal Board in its decision to allow a 26-storey development that was opposed by Council in 2016, citing that as a MTSA, the terminal could support intensities well in excess of those contained in the Official Plan.”

Kearns said: “I continue to stand by this decision and appreciate the strong position Staff bought forward for consideration. In the clearest terms, Staff would have been mandated to continue accepting and processing planning applications that vastly exceed in-force planning permissions. Essentially, it would be difficult to ever conclude a planning application for final recommendation without creating a new planning precedent. This is not an effective way to manage our city’s growth intentions.

“Were appeals expected?” Some yes but the 31 that came in the door in a few days must have been a shock.

“Did the City decide to extend the ICBL?” No, it didn’t. The moment an appeal came in the ICBL was locked and would stay in place until every last appeal is fully heard.

When the amendments were passed on January 30th, “Two scenarios were possible at the close of the appeal period on February 26th, 2020. The first would see no appeals to either the official plan amendments (OPA#119) or the zoning by-law amendment (ZBA 2020.418) that was approved by Council bringing the new policies into effect, and the subsequent lapse of the ICBL on March 5th, 2020.

“At that time, all new planning applications would be reviewed against said policies, resulting in a planning recommendation report either supporting or refusing the development application.

“… the second scenario has taken place. All it took was a single appeal to the zoning by-law amendment (ZBA 2020.418) approved by Council to extend the ICBL until such time the appeal(s) were dealt with by LPAT. The result is effectively extending the freeze on development for the entire land use study area.

The problem with this explanation by Kearns is that the impact of an appeal was never really discussed, unless Council did so in a closed session. The level of risk Council was taking was never detailed.

City staff did work diligently to meet Council’s commitment to complete the work within one year and lift the freeze on the lands within the ICBL boundary.

Here’s what happens next:
The City Clerk will compile the appeal record for all of the appeals filed and send them to the Local Planning Appeal Tribunal in order to schedule a Case Management Conference (CMC) at a future date under the LPAT which adjudicates conflicts during the process of land use planning.

Transparency:

“This council has committed to integrity and transparency on all issues, including the ICBL. Significant effort has been made to keep the public fully engaged and aware of each step of the process.” That doesn’t explain why Councillor Kearns published these comments on just her Facebook page.

To her credit she did say something. When asked by the Gazette for comments, Councillors Nisan, Sharman, Kearns, Bentivegna and the Mayor went mute.

Councillor Stolte did send in a comment saying Councillors were informed of the appeals on the 27th and they were told then what that means – the ICBL would stay alive until all the appeals were heard.  Councillor Galbraith said the original Gazette report and the clarification set out his position.

This story is far from over. It will plague council and might take a hunk out of their hides.

We will know more when the city releases the content of the appeals. You can bet that there is a lot of strategizing going on at city hall these days. Know too that the Legal department budget either has or will be getting a major boost.