Resident beleives it is up to the developer to decide if they want to comply with the city position or take the differences to the OMB.

opinionandcommentBy Jeremy Skinner

December 11th, 2017



Where is the 421-431 Brant Street development application going?

If anyone has any concerns as to the City of Burlington’s decision with regards to the 421-431 Brandt St. application, then I suggest that they read the City of Burlington Planning Department’s Recommendation Report PB-62-17 which was accepted by City Council decision on November 13th.

The document in its entirety (all 71 pages) is at

Scroll down to Recommendation report and click on the report.  The Recommendation report is close to the bottom – they don’t make it easy to find.

Upon reading the Recommendation Report, it is my opinion that the applicant (421 Brandt Street Inc.) and City Planning were unable to agree upon what the permitted height for the proposed building should be. I can only surmise that the developer threatened to seek an appeal to the OMB to obtain what could not be negotiated from City Planning Staff. A building height of twenty-seven storeys.

I base my opinion on the words “recommending modified approval” which are found in the Recommendation Report’s Subject line and two statements contained within the report found in the Section entitled “Purpose” documenting the different points of view. They are:

1. “The applicants are proposing to amend the Official Plan (Downtown Core designation) and Zoning By-law (DC zone) to permit the proposed 27-storey mixed use building with a floor area ratio of 10.29: 1.” and

2. “Notwithstanding, planning staff have recommended a “modified approval” which would permit a mixed use building with a height up to 23 storeys, subject to significant design and public realm improvements.”

While the developer has documented their agreement to comply with many City and Region comments made during the application process by submitting a revised application last August, the requested building height remained unchanged at 27 storeys.

421 Brant

Skinner believes the developer has an important decision to make.

In addition, the cover letter for the revised submission written by Mr. Mark G. Bales of 421 Brandt Street Inc. dated 03 August to Ms. Mary Lou Tanner Director of Planning & Building includes the following Conclusion statement: “Further to the comments received, the analysis completed by our consultant team and our comments above, we are requesting that you consider the resubmission materials and move the project forward to City Council for approval immediately.”

It is my opinion that the consequence of City Council’s approval on the 13th of November of the City Planning recommendations implies that the developer must decide between:

1. Complying with City Council’s approval of City Planning recommendation of “a mixed use building with a height up to 23 storeys, subject to significant design and public realm improvements.”

The City is not known to amend the Official Plan (Downtown Core designation) and Zoning By-law (DC zone) to permit development of the site until such time when it receives the developer’s agreement to comply.

Other parties, such as a Resident’s Association, can not seek an appeal to the OMB against the City and/or the developer until the City amends the Zoning By-law.

Should any of these other parties seek an appeal against the City and the developer, they would have to: prove that they made a delegation at the Statutory Meeting held on the first of November; assume the costs of obtaining suitable representation at the OMB; and make the case to the OMB that the City and/or the Developer made significant errors in interpreting Provincial, Regional and/or Municipal Policies, Principles and Guidelines.

The risk in seeking an appeal is that the OMB is an independent tribunal with the authority to approve, change, or reuse planning applications. As such all parties run the risk that the developer will take advantage of the appeal to make the case for the original development application requirements, including the 27 storey building height.

421 Brant 12 and 23

Graphic profile of the proposed development on Brant Street – 12 storeys and 23 storey’s.

The OMB may or may not ultimately side with the party seeking appeal in whole, or in part, based upon the strength of the arguments presented by all the parties for and against the appeal.

2. Appealing City Council’s approval of City Planning’s recommendations to the OMB in the hopes that the OMB will direct the City to “amend the Official Plan (Downtown Core designation) and Zoning By-law (DC zone) to permit the proposed 27-storey mixed use building with a floor area ratio of 10.29: 1.”

The costs to the developer in doing so include the costs of obtaining suitable representation at the OMB and the costs associated with delaying development of the property for between 6 and 12 months pending the OMB decision after multiple hearings.

The risk to the City is that the OMB is an independent tribunal with the authority to approve, change, or refuse planning applications. In other words, OMB decisions take the place of decisions made by Council.

The risk to the developer is that other parties, such as a Resident’s Association who made a delegation at the Statutory meeting held on the first of November, could make the case to promote more restrictive terms than those which were recommended by City Planning, such as to limit the building height to twelve stories, etc.

The OMB may or may not ultimately side with the developer in whole or in part of the appeal based upon the strength of the arguments presented by all the parties for and against the appeal.

It is my opinion that the decision rests with the developer as to where the 421-431 Brandt St. development application is going. Until the developer decides, no one else can and the development remains stalled.

Editor’s note:  ECoB – Engaged Citizens of Burlington have called a public meeting for December 13th at the Baptist Church on New Street to discuss an appeal to the OMB of the city council decision to approve the the 421 Brant Street development.

Related content:

Staff recommendation.

Skinner JeremyJeremy Skinner is a Burlington resident who is a frequent contributor to the opinion pages of the Gazette.

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11 comments to Resident beleives it is up to the developer to decide if they want to comply with the city position or take the differences to the OMB.

  • Tom Muir


    Lots of data, that you like, and might fit somewhere else without resident rancor, and downtown-busting, but you are missing the point that you originally made about appealing or not appealing.

    That’s what I addressed and questioned. Here, you are making a misplaced narrative about the building, not what residents are upset about and want to do, regardless. I guessed I asked about some of it, but it made my point not yours.

    If you are okay with it, that’s fine, as there is some disagreement, for and against, but it seems overall that those stated as opposed outnumber the supporters.

    The opposition had a big meeting, and all I have seen from supporters are expressions that they like it for some reasons, and it’s what they want in their reality. But no big meeting here to rally support.

    I would like you to describe the “by right” for 12 stories, for the entire site parcel, with official sources, as this is in dispute. What are the OP and by-laws for this site, and why could they not be varied?

    And there is no evidence to support your assertion that anything built at 12 stories would be a “cube”. A cube is a cube only if it is designed and built that way.

    Your example is the Sim’s building I think, but that was built very long ago and would surely not just be replicated twice as high. The fact that you could not locate a specific example rendering of 12 stories at this site, but only the skinny 23, proves that any visible comparison underlying the choice you state has not been offered, and is a red herring with no basis.

    I see no evidence that the city would just allow this to happen if it was really an alternative, and not a straw man being used to rationalize the 23 story negotiated approval.

    Are you saying that the design of 12 stories could not be negotiated to win a design award?

    I think, that as always, following the money is what drives the height and your floor dimensions. It’s even worse than I thought. Millionaires rejoice. Who else will afford this, condos and retail alike?

    I don’t much care myself if 12 stories doesn’t give the views of 23, but something special can still be built, fit better in the site, comply with the existing OP maximums, and meet better what the residents would accept. That’s a fact.

    You, like the city, Councillors, and planning bosses, are offering a fabricated and false choice – you portray it as a porky pig without as much as lipstick, versus the seduction of city planners, manager and 5 of 7 Councillors, by a Cinderella, slender and tall, with glass slippers and all.

    Your original story line still makes no sense to me given the reality of disagreement. Who are you to say we can’t win?

    If you take your advice and quit, then you can’t win for sure.

    Only losers quit.

  • Jeremy Skinner

    Tom, et al:

    I appreciate the frustration over what had transpired, and I too felt blind sighted at first. I decided to look further into the matter by reading the documents on file and to reach out to our Councillors and with members of City Staff.

    I am a firm believer that height needs to be addressed if the proposed building were to over-shadow one or more residential neighbourhoods. However, this condition does not exist with this application because the immediate surrounding lands are designated as mixed-use and the significant distances to residential neighbourhoods.

    The developer by right of property ownership is able to construct a twelve-storey building from the existing site property lines. I refer this as the twelve storey cube.

    I then looked for an illustration of what a 12-storey alternative might look like. The best that I could find is located at 390 Brandt St. which is a 6+ storey cube-like building and then considered the impact of doubling its height. Go to google maps take the satellite view and then zoom into street view or take the easy path by using the following URL link,-79.797273,3a,75y,233.72h,113.29t/data=!3m6!1e1!3m4!1s4Zj2xX_L4G7XAim1vgFugg!2e0!7i13312!8i6656

    The proposed building has 4-storey podium which includes setbacks from the property lines plus a 19-storey slim tower with a significant step back of 11.82m (38.7ft) from the north edge of the podium and a significant step back of 6.52m (21.3 ft) from the west edge (facing Brandt St.) of the podium (see Revised Application Architectural Plans Level 5 on Pg.8). It roughly aligns with the City Hall Tower.

    The step back from Brandt Street enables more sunlight to illuminate the streetscape (as illustrated in the Applicant’s Presentation Pg.11 & 14). The step back from the north property line enables someone standing at the Cenotaph to have an east-facing sky view above the 4-storey podium level (as illustrated in the Applicant’s Presentation Pg.11 & 14). Note that the top of the podium would be significantly lower than an imaginary 45-degree angular plane established at the foot of the Cenotaph. Neither would be possible with a 12-storey cube rising from the property lines of the site.

    The Recommendation Report Pg.61 indicates that the building height is 89m (or 291.9 ft), with a ground floor of 5m (or 16.4 ft), 2nd floor 3.95m (or 12.9 ft.). Pg.56 indicates that the 4-storey podium height is 15.6m (or 51.1 ft.) which is less than 80% of surrounding street widths of 20m (or 65.6 ft.) and thus is compliant with the Tall Building Guidelines. The developer’s Revised Application Architectural-Plans Pg.13 suggests residential floor heights of 3m (or 9.8 ft.) on the lower tower floors, 3.3m (or 10.8 ft.) on mid tower floors and 3.9m (or 12.7 ft.) on penthouse tower floors. I can’t image how you would integrate 169 residential units into a 12-storey cube and provide each unit with a room with a view.

    The developer’s presentation includes illustrations as to how street views of City Hall and the Cenotaph area from a person standing on the south-west corner of James St. and John St. were improved by softening the proposed building street-level corners using a bevel located at the north-east corner of Brandt St. & James St. and a bevel at the north-west corner of James St. & John St. Neither would be possible with a 12-storey cube rising from the property lines.

    The retail space of 900sm (or 9,687 sq ft.) at ground level plus the 365sm (or 3,928.8 sq ft.) of office space on the second level exceeds what was present on the sites prior to closing. Councillor Meed-Ward requested and obtained agreement for the provisioning of additional entranceways to improve pedestrian access to the retail spaces contained within the proposed building.

    Street setbacks of 2.95m (or 9.6 ft.) enables the option of patios on Brandt St., 2.61m (or 8.5 ft.) enables the option of patios on James St. A set back of 1.99 (6.5 ft.) on John Street simply widens the sidewalk. These patios or wider sidewalks would not be possible with a 12-storey cube rising from the property lines.

    This building exceeds local building height precedence by merely one floor which previously established by the development on the SW corner of Lakeshore & Pearl. However, according to the City’s Zoning By-law, a mechanical penthouse on the top of a building is permitted to contain an elevator and stairway receiving area no larger than 9 square metres. If the rooftop mechanical penthouse exceeds 9 square metres, it is considered an additional storey. For this application, the developers are proposing an outdoor rooftop amenity area, which would be accessed by an elevator receiving area that is greater than 9 square metres.

    It looks like a pretty good building to me and one with which I would not wish to appeal to the OMB against especially when considering that it is the Provincial Government which is setting the intensification targets and the locations as to where they are to be achieved including: urban (downtown/uptown) cores; mobility hubs (Provincially funded transit centres); major transit (streets) corridors; and shopping plazas. The City of Burlington’s Official Plan and associated Zoning By-Laws are an attempt to manage this intensification but are not cast in stone.

  • Tom Muir


    Why on earth do you think the developer would appeal Council’s decision?

    I guess they could, but if nobody else like ECoB, appeals, they would be up against everybody – city council, planners, citizens. I think this would be nuts.

    He got almost twice the height of the 12 that was arguably possible, something disputed, and there is no visible plan showing what it would look like, and how it would conform.

    They got the square footage they could arguably get, and they got the basic floor numbers they wanted, which adds great value to the condos on the upper floors.

    I didn’t see what the floor ceiling heights proposed are, but classy condos, with big views, and millions in price, come with high ceilings, don’t they? So how high is the building really?

    He delegated that Council meeting, and spoke with pride of the negotiated proposal.

    They have neither a planning case nor a financial case for doing this, in my view.

    The only circumstance I can think of where this might, just might, be of strategic value, if it is even possible, and can be defended by someone wiser in this than I am, is if ECoB appeals.

    When they do, the developer is in it no matter what they really want.

    But again, I have no idea why they would appeal, or why ECoB should not, as you suggest.

    A ECoB appeal is their only option to argue how the negotiation of this building proposal is distinctly out of line with the PPS, the city’s own determinative OP, bylaws and authority, and arguably, the Planning Act.

    What are the arguments for, and the terms of the negotiation? There is no transparency or accountability anywhere to be seen.

    Your recommendations make no sense to me.

  • Jeremy Skinner

    The ECOB meeting is open to the public.
    Wednesday, December 13th from 7-9 pm
    Burlington Baptist Church,
    2225 New Street (next to Dodsworth & Brown).
    Please use Church entrance off the Dodsworth & Brown parking lot.

  • Steve

    I wonder how pissed off the people of Burlington would actually be with ECoB if they were to win an appeal for a 12 storey building? The developer is only proposing a 4 storey podium at the property line, not the 12 storey mass they’re allowed.

    Becarful what you with for.

  • Jeremy Skinner

    1) Let us not be gamed into taking positions that we can’t win!
    2) The best option going forward regarding the 421-431 Brandt application is to seek party status at the OMB if, and only if, the developer chooses to appeal Council’s decision.
    3) This assumes that we can gain the necessary consensus on goals and financial support from the citizenry. Same will be required for future applications as well.
    4) I plan to attend the Wednesday evening ECoB meeting. I hope to see you there.

  • William

    This assumes that resident’s can only appeal when the city amends the zoning bylaw. Taking a page out of Adi’s playbook, resident’s can appeal based on a “non-decision” by city hall. They failed to meet the 120 day deadline.

    Waiting until the city changes ts bylaws will face more hurdles. A later appeal could be subject to the Province’s Bill 139, if it passes. This puts the onus on the appellant to prove that the staff recommendation and council decision fails to conform with provincial planning policies – a much higher bar than presently in place.

    Presently, the hearings are “de novo” meaning the OMB hearing starts as if no decision has been made.

    The provincial changes puts the city in the driver’s seat. Normally this is good news. Unfortunately, for Burlington our planning department and council want to re-make the downtown for an unfathomable reason and have set themselves in opposition to the wishes of many.

    • Tom Muir


      I think you are wrong in the first paragraph. The city made a decision, but this decision apparently needs the legal amendments brought forward to pass. Then an appeal can be made.

      THat’s what I’ve been told by clerks office and the 421 group found that out when they went to file.

      Now maybe if the city stalls bringing the legal amendments to be passed, for all the reasons of advantage that you state, for 120 days, will that satisfy your basis.

      I don’t know. Can you look into this?

      • William

        Perhaps you’re right and the legal amendments are required. However, I don’t believe the city is revealing all of the available options – not when I read the following in the Burlington Post, “City of Burlington staff confirmed the advice given to ECOB by the city clerk, but noted any member of the public can appeal a council decision at any time.”

        I will dig into this. The city needs to explain the last part of their statement which seemingly contradicts the information you received.

        • Tom Muir


          Good idea to check, but I think it’s a slip in the semantics by the Post and they are likely not really cognizant of the fine details.

          If you look up the city pamphlet – Planning Process for OP amendments and rezonings, you will see the flow chart of the process.

          The very last step is Council decision, then appeal period which includes notice and information on how to appeal.

          Without the actual wordings of OP amendments and rezoning passed by Council as bylaws, there is nothing official – WE ARE TOLD – to appeal, and when passed, there is 20 days to do so.

  • Hey Jeremy,

    Maybe the staff are master negotiators. How can we verify the negotiation was a good one and in the public interest? That’s the problem – we can’t. And since the staff seems to have little interest in the problems that citizens raise – people are going to take matters into their own hands.

    This is directly related to development after development that do not seem to be an additive process to the community. It’s not brining in new business or new anything – just people with no transit planning what so ever.