Will ECoB have grounds to appeal the 421 Brant project? And what will the city get in the way of community benefits - and how are those benefits calculated?

News 100 redBy Pepper Parr

February 20, 2018



Where is ECoB and their plans to appeal the decision to approve that 23 storey at the north east corner of Brant and James opposite city hall? The on across the street from city hall.

The question being asked is: Can council overturn the 5-2 vote on the 23 storey building at 421 Brant, to stop the project?

421 Brant

Sometime in the year 2020 people will be looking out from those balconies and the Brant Street we know today will be a thing of the past. The tomato processing plant that used to be where the Waterfront hotel is today is also a thing of the past as is the Riviera Motel. The world does move on.

Answer: Technically, the final decision on 421 Brant has not been made; that won’t happen until the amending bylaws come forward for a council vote.

Usually, the bylaws are presented at the same time as the vote on the application, except when community benefits are negotiated. Those are negotiated after council votes on an application, and the benefits come back for final vote alongside the amending bylaw.

Community benefits are being negotiated for this development, because of the increased height/density, the bylaws and community benefits will come back at a future date (likely in the spring) for council vote. That vote will be the final decision on the matter.

When that final vote is taken ECoB then has something they can appeal.

Council could choose at that time NOT to approve the amending bylaws, which would stop the project. That is unlikely but technically possible.

The fact that the final decision on this matter hasn’t yet been made is why in December the Engaged Citizens of Burlington could not file an Ontario Municipal Board appeal of the council “decision” on 421 Brant; a decision hasn’t been made until there is a vote on the bylaws, which hasn’t happened yet. The bylaw vote triggers the appeal period to file an appeal with the OMB (or the new Land Planning Appeals Tribunal).

Reconsideration Motions:

In general terms, council can choose at any time to “reconsider” a vote – (but that doesn’t apply in this case because the final vote hasn’t yet occurred).

A motion to reconsider an item requires a 5-2 vote to get the motion to the floor; and if that passes, a simple 4-3 majority is all that is needed to make a new decision on the item.

Only someone who voted in the affirmative on the original motion can present a motion to reconsider the decision.


Taylor said he voted for the 23 storeys but was going to ensure that buildings on Lakeshore and Brant didn’t go higher than 17 storeys. The the OMB gives a developer four blocks to the west approval to put up 26 storeys. would that cause Taylor to have another change of heart?


Ward 6 Councillor Blair Lancaster thinking through the answer to a question. Tends to be cautious.

Councillor Blair Lancaster might get soft and decide that 23 storeys is too much. Unlikely though.

That means one of Councillors Taylor, Craven, Sharman or Lancaster would have to move a motion to reconsider and then five of the seven members would have to vote for that motion.

Looks pretty slim doesn’t it?

And the OMB decision that gave the ADI Development Group the right to put up a 26 story tower just blocks away kind of makes the idea of an appeal questionable.

The matter keeping the development away from city council is determining just what the community benefit are going to be.

Many people wonder just what does a developer have to give the city in the way of community benefits. How is that benefit calculated?

In the planning world the benefit is called an “uplift”

A calculation is done on the increased value of land as a result of a rezoning, the idea being that land zoned at 8 storeys will be worth more than land zoned at 4 storeys.

The land in question is 421, 425, 427, 429, and 431 Brant St. and 2007 to 2015 on James St. Whatever they were worth with a four storey zoning is the base value – what would the properties be worth if zoning were increased to 23 storeys.  One of the properties was already zoned at 12 storeys.

421 Brant st frontage

How much are these properties worth with their current zoning and how much would they be worth with the zoning that is being applied for? 50% of the increased value of the land will get paid to the city for community benefits.

Once that increase in value is calculated (called “value uplift), typically the city takes 50% of that, in cash or other benefits, or a combination of the two.

The value that is determined is not related to the number of additional units a developer will be able to create and sell – It is not related to the market value of the additional units that could be built as a result of a rezoning to increase height or density.

It is related to what the increased value of the land becomes – a fine distinction.

That equation will surprise a lot of citizens.

Some of the content in this article was copied from the A Better Burlington website.

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3 comments to Will ECoB have grounds to appeal the 421 Brant project? And what will the city get in the way of community benefits – and how are those benefits calculated?

  • Perry Bowker

    Wouldn’t it be nice if the Community got to weigh in on what constitutes a “Comunity benefit”? Maybe they would point out that a bigger plaza or a fountain does not compensate for more stories on a building.

  • Tom Muir

    Of course they have grounds for appeal.

    If they don’t appeal they are sunk, as are the rest of us. An appeal was, and still is, their initiating and primary raison d’etre.

    It is essential to showing the arbitrary nature at which 23 stories were approved, by a wide open negotiation with no apparent transparent rules governing what was done, and who did it.

    There is no visible compliance with any OP, existing or proposed, and the criterion of compatibility was never presented or argued.

    In negotiating this deal – for which there is no public account of – the city not only threw out the existing OP, but they also threw out the proposed OP permissions, and with that, any rational argument for the meeting of provincial policies that is supposedly contained in the proposed OP that they insist on approving post haste.

    If the existing OP, and from OMB/Adi decision rationalization, the proposed OP permissions, do not adequately meet provincial policies in the OMB view, then as a consequence,any decision based on either is dead on arrival.

    The Adi decision sets a legal planning standard, showing as clear as it can, that planning and the city have lost control.

    In their unflagging digging of the hole planning and City are in, Adi/OMB has blasted out the bottom, and now it’s free fall to who knows where.

    I gathered from looking at the OMB decision, that the city did not do a very good job of representing what the city says is its directions in planning, and did not argue the compatibility criterion.

    I think this stems from their conflicting goals and priorities that have been changing since the Adi application. They fumbled the ball then by not making a decision in the legal timelines, giving Adi a free pass to OMB, and no one has ever been held to account for this.

    I entered into a long written complaint back in 2015, picked up by the Gazette, and partly reprinted by the Gazette a few days ago. I just got brushed off with excuses and partial truth, and no answers to questions.

    MMW was involved in that as Councilor, and the Mayor completely dodged the matter with a lie that thanked MMW for answering all my questions, which were not. He promised a meaningful response, but never provided any at all.

    I have a lengthy email folder showing this in detail.

    This has led to an overall capital mess, that will likely lead to long, expensive, and protracted litigation with developers. Adi/OMB may have blown up the OP.

    This gives developers the opportunity the make the OP what they want it to be, as I have suggested repeatedly over the last 2 years at least.

    Don’t expect Molinaro and Mattamy and others to be satisfied with the proposed permissions on their properties (Mattamy has an application in for 18 stories in an area -James and Martha) proposed at 11.

    This is right down the street from Adi. Molinaro has Lakeshore and Brant, proposed permission at 17, previously draft 22, and who knows what they will be after now. This is a couple of blocks from Adi, also on Lakeshore.

    Then there is the Waterfront. And the Gazette, today, reports a significant number of other applications in downtown and there are others in Aldershot. Expect these to contain significant amendments to the existing OP, as well as seeking permissions beyond the proposed OP.

    They can all be expected to use the OMB/Adi decision as a key factor, the city negotiated settlement on 421 Brant St, and the precedent following application at 409 Brant St. as arguments. There will be others.

    Developers smell the blood in the water, and no one is to blame except planning, pushed by the city and the Mayor. I think he owns this mess.

    The city and planning have created this situation, with continuing lack of explanation and accountability for the clear and emerging consequences.

    All bets are off. You can’t believe anything that comes out of planning and City. The idea they are in control is laughable.

    They are in full on defensive damage control for sure.

    ECoB has to appeal 421 Brant if it is fully approved by Council.

  • Joan Gallagher Bell

    Yes personally I think they have grounds. Iwould rather than express the many negatives we already know, I will add a positive. In October there is an election. Then if we don’t vote for the “usual suspects” there could be a change. The OP really is a living document to be embellished as the needs of Burton residents evolve. Particular in the requirements of seniors.
    Joan G-B