Some of the why behind the decision to extend the Interim Control Bylaw

News 100 redBy Staff

February 26th, 2020


CLARIFICATION: City Executive Director Heather MacDonald said at a council meeting that the Interim Control Bylaw, put in place March 5th would be allowed to expire in March 5th, 2020.  That was the intention.

Developers impacted by the ICBL had 20 days after the end of the one year ICBL to appeal the decision that was made in 2019.

More than 30 developers chose to do just that – which meant the city could not repeal the bylaw until all the appeals were heard by the Local Planning Appeal Tribunal (LPAT).  How long that will take is something over which the city has no control.  All the city can do is appear at the LPAT hearings and defend their original decision to put the ICBL in place back in March of 2019.


The announcement that the city was not going to let the Interim Control Bylaw (ICBL) die a natural death on March 5th, surprised many.

Meed Ward hands out frnt city hall

Mayor Marianne Meed Ward in front of city hall where she is making Burlington a much different city.

Mayor Marianne Meed Ward said; “Burlington remains open for business and the city honoured our commitment to complete our work within one year and lift the Interim Control Bylaw (ICBL) that affects 1% of our total land.

The appeals will now extend the ICBL. We will fight vigorously to defend the policies we have created. They are founded on sound planning principles based on evidence and a one-year independent consultant study.

They also reflect the vision of staff, council and our residents for the future of our city. We remain steadfast in our commitment to ensuring the right development in the right place at the right scale.”

MacDonald - JAmie - Commisso

Executive Director Heather MacDonald at a Standing Committee with city manager Tim Commisso on the left and Jamie Tellier, a planner on the right

Heather MacDonald, Executive Director of Community Planning, Regulation and Mobility said: “Given the significant level of development interest in Burlington, and in particular the Burlington downtown and lands in the vicinity of the future mobility hubs, I am not surprised by the number of appeals that have been filed. It’s not uncommon for a significant change to an Official Plan to attract a number of appeals.

“After listening to the submissions made as part of the public meeting held on Jan. 14, 2020, staff did work hard to resolve issues raised and make changes to the planning instruments where possible.”

Obviously the work done by staff wasn’t sufficient and they decided to fall back on the ability to extend the ICBL. Hackles will be raised within the development community – and billable hours will rise within the legal community that serves the interests of the developers.

Quick Facts

• An interim control bylaw (ICBL) is a tool available to Ontario municipalities as part of the Planning Act. An ICBL places a temporary “freeze” on the development of certain lands while a municipality is studying or reviewing its land use policies. The restrictions can only be imposed for one year, with a maximum extension of a second year. An ICBL may not be appealed when it is first passed, however the extension of the ICBL to a second year may be appealed.

• Developments in the study area that submitted applications for site plan approval, in accordance with the approved zoning bylaw, prior to March 5, 2019, were exempt from the ICBL study area.

• During the one-year “freeze” on development in the study area, the ICBL Land Use Study:

o Assessed the role and function of the downtown bus terminal and the Burlington GO station on Fairview Street as Major Transit Station Areas

o Examined the planning structure, land use mix and intensity for the lands identified in the study area

o Proposed updates to the Official Plan and Zoning bylaw regulations as needed for the lands identified in the study area.

• On Jan. 30, 2020, Council approved the revised recommendations from the findings of the Interim Control Bylaw (ICBL) Land Use Study, including the approval of the proposed Official Plan and Zoning Bylaw Amendments resulting from the ICBL Land Use Study.

• On Feb. 6, 2020, the public was notified of plans to lift the ICBL and the 20-day window for appeals. Appeals were due to be filed with the city clerk on or before Feb. 26, 2020.

The avalanche of appeals appears to have been the justification for extending the ICBL deadline.

No mention is made of possible exemptions for some of the developments that have been hard hit by the ICBL decision.

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15 comments to Some of the why behind the decision to extend the Interim Control Bylaw

  • Jim Young

    OK here is my 2 cent clarification.

    Council agreed to let the ICBL expire.

    Council then agreed on amendments to the New Official Plan as it applies to “Downtown”.

    Developers have invested millions in downtown properties so do not like the changes to the “Downtown” plans.

    They have appealed to LPAT to stop those changes to the Official Plan (31 appeals … mostly around downtown issues).

    While those appeals are before LPAT the ICBL is frozen in place until the appeals are decided.

    This is simply the process and is not requested by or controlled by the city. It is just the way the process works.

    The eventual outcome is now in the hands of a much more developer friendly LPAT.

    This will take years to work it’s way through LPAT, will cost city and developers big bucks and tie up limited city planning time for years.

    Meanwhile, other (non downtown ) planning/zoning applications will pile up at city hall.

    Without enough time for city planners to consider them, they too will end up at LPAT.

    Effectively, control of city land use planning has been handed over to LPAT in a process that will be driven by developer appeals more than Good Planning Principles or Resident Wishes.

    I fear this will work out better for developers than local citizens.

  • Tom Muir

    This right to appeal and timelines governing it is part of the Planning law, and this is well known at City. It is not just restricted to developers, as anyone can appeal – just fill out the forms and pay the $300 with submission to the City Clerk by the due date.

    What is being appealed in this case are the amendments (by name-tag), to the existing in force Zoning bylaws and Official Plan for the Downtown, Burlington GO, and the informing ICBL Studies, approved by Council on February 6. Appeals had to be made within 20 days.

    These amendments and appeals do not pertain to anywhere else in the City. For example, Ward 1 (e.g., Plains Rd Aldershot, Tyandaga and Maple) has been flush with complete applications, staff refusals and appeals, negotiated settlements of appeals, still outstanding appeals, and a couple of pre-application proposal meetings.

    So the City is still, as the Mayor says, open for business. At least where I live and elsewhere I believe.

    Even Downtown has not stood still and several developments are underway right now. So what’s the problem with trying to get some political control over the rules that set the pace of the business of the development industry in a specific and very small portion of the City? I think the Mayor said it was 1%.

    The problem at the root of this, in my opinion, is exemplified in recent Aldershot land prices. It has been reported by the Ward 1 Councilor that land costs in the Aldershot GO proposed Mobility Hub are $6 million an acre. Further to this, it is reported that such prices are determining and justifying heights and densities of 30 stories and more. Note that nothing is even proposed, and we have no legal and vetted Mobility Hub in planning place.

    The problem vexing us is that these prices reflect an acute case of inflationary expectations – the land costs are being driven by self-serving speculation that said heights and densities will be allowed, indeed, must be allowed, by the City to follow and justify these prices ever upward.

    These inflationary and speculative expectations, compounded by greed, are, I I think, a major force behind the appeals mania we are seeing. All these present 31 appeals indicate that several developers, holding various speculative positions in parcels in the Downtown and Burlington GO planning precincts, don’t think the amendments give them enough height and density development rights or site plan control.

    As I said, they have a set of inflationary expectations that has been fed over the last few years by an out of control, self-justified development fever, that has had no respect for any rules whatsoever. The developers and their applications have been trying to make up all the rules and planning policies on the go to try and get what they want.

    Generally, there are no specific applications for development proposals in these appeals as far as can be seen. This is about what the Zoning and OP amendments say are the rules and policies specified in the amendments about what can be built in the areas specified.

    These define the development potential of the land assemblies, determine the financial yields, and are about the expectations of future possibilities – the source of speculation driving the inflation ever upwards is the hope.

    I remember reading in the recent planning process that one thing these rules were meant to do is to give developers something to go by in their own planning and financial investment decisions.

    So, in short, in working to regain City control over what gets built , City have to deal with the results of the inflationary expectations and speculative mindset that have been fed by the previous loss of control.

    This situation has some developers looking to avoid the hard hits that are pitfalls when this mindset conditions the thinking to where care is not taken to assess the uncertainty interval of possible outcomes in the assessment of risk.

    Now, the appeals look to the Province and LPAT for a second chance to get bailed out from their greedy mistakes.

    Once these appeals are filed, it all goes to legal and the City and Council cannot do anything further outside of the appeal process at LPAT. This is also well known at City.

    That is why the ICBL will not be, and really cannot be, lifted, at this time.

    The City did not choose, nor could they it seems.

  • Roland Tanner

    Hang on a second… do I understand the clarification right?

    31 developers appealed the decision of the city to put the ICBL in place in 2019, thereby ensuring that the ICBL would be in place for 2020 as well?

    And furthermore, developers are only allowed to appeal the first year of an ICBL after the first year of the ICBL has already been completed?

    ‘Catch 22’, ‘Bleak House’ and Kafka at their best have nothing on this.

    • Don Fletcher

      This is not my understanding, Roland. It’s the amendments to the OP & BY-laws that the City has proposed (as a product of the ICBL land use studies), that are being appealed to the LPAT.

      • anneandavegmailcom

        That was our initial understanding too Don and we will write our letter to LPAT based on that in terms of our appeal being heard first. We did respond to your question but it has not been posted yet.

      • Roland Tanner

        You’re right Don, but this isn’t the message that was conveyed remotely clearly by the initial release or by the clarification above. The clarification made things a lot less clear!

  • Penny Hersh

    “Editors note: The city communications people were in touch with the Gazette advising us that the headline on the article was misleading and that the city did not choose to keep the ICBL alive. Please see our revisions and republication of the original article which has now been taken down from the web site”

    Could someone explain to me what it means when saying “the city did not choose to keep the ICBL alive” – then who did?

    I want to like to know what handling the appeals at LPAT has to do with extending the ICBL?
    Certainly the appeals could have been dealt with without extending the ICBL, if not I would like to know why?

    I have been led to believe that once the ICBL is extended the City could be taken to Court (not LPAT) to challenge this extension.

    I find that the Mayor and Council have been extremely quiet since this decision was made public. I can’t be the only resident wanting answers.

    Delaying development does not mean it will not take place. I certainly hope this is not a political tactic to extend this until the next municipal election so that residents are fooled into believing that this council has filled its mandate to control development.

  • Tom Muir

    It was my impression that the 31 appeals are for the amendments to the existing OP that Council just passed as a result of the Downtown study and the ICBL study.

    I don’t think it is for 31 applications as this seems obvious.

    I will look to see if the Gazette revision noted by the Editor explains this, but as I write this, it isn’t on-line yet.

  • Penny Hersh

    Don, I think we need much more in the way of information ( in layman’s terms) to know just what this means.

    I think that residents should be asking this by sending emails to their councillors, the Mayor, Tim Commisso, Heather MacDonald.

    A bulletin sent out on a Thursday afternoon by the Mayor, just does not fly with me. Was this a decision that Council approved? Are the appeals already in place at LPAT decided by the existing OP? Does the passing of the studies of the ICBL have any place in these appeals? Burlington at this point in time does not have an approved OP.

    Thirty-One (31) Appeals. I remember being at a meeting when the ICBL was being discussed and one of the questions asked was about appeals for non-decision .Heather MacDonald stood up and explained that this was a possibility, but it was the HOPE that they would not be heard by LPAT until the ICBL was lifted. This was the first time that residents even knew it was a possibility. Here we are now being told that the ICBL needed to be extended because of these appeals.

    I would like to have an explanation of just what this means, and did staff and council did not see that this was a definite possibility?

    Can developers use the Courts ( not LPAT) to challenge this decision?

    As for LPAT – it is here to stay. Don’t forget LPAT was around when the Liberals were in power as well ( 15 years before the Conservative Government came into power).

    I for one am asking my elected council to let residents know just what is going on and how we will be affected? Is this too much to ask?

    Editors note: The city communications people were in touch with the Gazette advising us that the headline on the article was misleading and that the city did not choose to keep the ICBL alive. Please see our revisions and republication of the original article which has now been taken down from the web site

    • Don Fletcher

      For clarity Penny, the 31 LPAT appeals are exclusively for proposed amendments OPA 119/ ZBA 2020.418, and NOT related to any specific development applications made previously. The City is compiling them now for submission to the LPAT, and has stated that they will provide info to the public as soon as it has done this.

  • James

    How can the Mayor keep saying Burlington is open for business when the area where growth is supposed to go is still frozen indefinitely? How dumb does she think people are? Think of the message this sends to would-be investors in our city. We may be open for business, but the shelves are empty. The right development in the right place to this Mayor appears to be outside our city limits. The ICBL may only technically affect one (very important) area of the city, but the anti-change sentiment is the same all over. I feel bad for the poor folks at BEDC who must arrive at work each day scratching their heads over how they’re supposed to do their jobs with one arm and leg tied behind their back.

    This Mayor was elected based on the false hope that she could miraculously save the downtown area from intensification. She made a lot of promises she can’t keep. Sure, she may have delayed things a bit with the ICBL, and now this extension by way of appeals falls nicely into her lap to delay things even longer, but she hasn’t actually stopped anything. This Mayor is using delay tactics to try and get through her term unscathed, but the pressure continues to grow behind her development dam, a dam that’s not going to hold forever.

    In the meantime, how many millions of taxpayer dollars are going to be spent fighting the inevitable growth that should and will happen? Burlington’s track record at LPAT isn’t exactly stellar when relying on a severely outdated Official Plan that no longer complies with Provincial policy as their only line of defense. Even the new Official Plan they’re still working on is likely several years from actually coming in to force considering all the appeals it will no doubt face. The increasingly combative atmosphere between this city and investors/developers has directly resulted in them seeking taller and larger buildings than they otherwise may be been open to, all because they know it will be a fight regardless what they do, and they need to maximize profits enough to cover the legal and delay costs. This costly battle seems to have become standard practice in Burlington, and we the taxpayers are stuck in the crossfire. It’s an absolute mess.

    If my understanding is correct, in the downtown area alone we have 31 new appeals, 18+ existing appeals, countless upcoming appeals, all at about let’s say for argument sake $200,000 of taxpayer money a pop to pay for the lawyers and consultants and planning experts (which may actually be on the low side). The costs are staggering.

    This Mayor talks a lot about being open for business and cutting red tape, but her actions speak much louder than words. This Mayor is costing us millions upon millions of dollars, and we’ll see the effects of that over the next few years with continued tax increases and lost revenue. As someone who lives north of the QEW and supports the redevelopment of our downtown into a more vibrant and modern urban centre, I don’t want my hard earned tax dollars funding a losing battle for the sole purpose of appeasing her little gang of downtown supporters. Important issues like transit, infrastructure, and traffic throughout the city as a whole are being completely ignored. Her entire term has been singular in focus, and while I readily acknowledge the limited commenters in this forum may be amongst those supporters, you must know there is a growing angst amongst the rest of the City questioning whether we’ve made a mistake in electing her, and questioning who’s best interests she is trying to protect. There’s no doubt her political aspirations extend beyond her current role, and by delaying the inevitable growth long enough, she may retain just enough shine to improve her chances at a provincial run. All the power to her, that’s not my concern. My concern is the future of all of Burlington, not just the downtown residents, and the price we’ll all eventually pay for her actions.

    Editors note: The city communications people were in touch with the Gazette advising us that the headline on the article was misleading and that the city did not choose to keep the ICBL alive. Please see our revisions and republication of the original article which has now been taken down from the web site

  • Don Fletcher

    As they say “you have to break a few eggs to make an omelet”. All would have been well with the developers had we just approved the Adopted 2018 OP, but that’s not what the residents voted for and our current Council plans to implement. Given that the developers can wait out another year of ICBL, I really hope the City will move to eliminate the Downtown MTSA and redefine the UGC expeditiously during this period. And oh, yes, double-down on trying to get rid of the LPAT monster.

  • ThomasJD

    Obviously you did not read the release very thoroughly. The City could NOT end it because of the appeals that were made by the development community. These need to be resolved by the LPAT before it can end.