Ontario Land Tribunal  
Tribunal ontarien de l’aménagement  
du territoire  
ISSUE DATE: June 17, 2022  
CASE NO(S).: OLT-21-001700  
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O.  
1990, c. P. 13, as amended  
Applicant and Appellant:  
Subject:  
Walkers Green Residences Ltd.  
Minor Variance  
Property Address/Description:  
Variance from By-law:  
Municipality:  
4030 Upper Middle Road  
2020  
City of Burlington  
Municipal File No.:  
OLT Lead Case No.:  
OLT Case No.:  
540-02-A-094/2018  
OLT-21-001700  
OLT-21-001700  
OLT Case Name:  
Walkers Green Residences Ltd. V. Burlington (City)  
Heard:  
May 24, 2022 by video hearing  
APPEARANCES:  
Parties  
Counsel  
Walkers Green Residences Ltd.  
City of Burlington  
Jacob Polowin  
Lauren Pinder  
DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL  
INTRODUCTION  
[1]  
This Decision determines the appeal filed by Walkers Green Residences Ltd.  
(the “Appellant”) pursuant to s. 45(12) of the Planning Act (the “Act”) of the City of  
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Burlington’s (the “City”) Committee of Adjustment (the “COA”) decision which approved  
three of the ten minor variances requested to permit an additional fifth-storey to an  
already previously approved four-storey application for 4030 Upper Middle Road,  
Burlington, Ontario (the Subject Property / Lands”).  
[2]  
The Subject Property is located south of Upper Middle Road and east of Walkers  
Line in the City of Burlington. The area surrounding the intersection of Upper Middle  
Road and Walkers Line consists of commercial uses at all four corners of the  
intersection. The intersection is surrounded by high density development in the form of  
four-storey apartment buildings and medium density development in the form of  
townhouses and stacked townhouses.  
[3]  
Directly to the north of the Subject Property is Upper Middle Road and further  
north there is a townhouse development and a commercial complex. East of the Subject  
Lands is natural heritage lands associated with the valley corridor of Shoreacres Creek.  
Further east is the Tansley Woods Community Centre and Public Library. South of the  
Subject Lands is a residential development consisting of townhouses, stacked  
townhouses and the Heritage Place retirement home, a four-storey building. West of the  
Subject Lands is a commercial development consisting of a bank, multiple restaurants  
and other commercial uses in a commercial complex. Further west on the west side of  
Walkers Line is another commercial complex, four-storey apartment buildings and  
townhouses.  
[4]  
The Subject Property is serviced by two existing bus routes, Route 12 along  
Upper Middle Road and Route 25 along Walkers Line providing connections throughout  
the City, with Route 12 providing a connection to the Burlington Go Station. Service  
frequency is every 30 minutes throughout the majority of the day except for before 6am  
and after 6pm which is every hour. Upper Middle Road and Walkers Line are classified  
as Minor Arterial Roads in the City of Burlington Official Plan (the “BOP”) – Schedule J.  
Tobyn Drive is classified as a Local Road.  
[5]  
There are a number of pedestrian trails and linkages in the area, including a  
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multi-use path along Upper Middle Road and Walkers Line, as well as a multi-use path  
to the east of the Subject Lands adjacent to Shoreacres Creek and Tansley Woods  
Community Centre, which provide a connection to the Tansley Woods Park to the south  
of the Subject Lands.  
[6]  
The Subject Property is approximately 3.088 hectares in area, with approximately  
192 metres of frontage along Upper Middle Road and 30 metres of frontage on Tobyn  
Park Drive.  
PROCEDURAL HISTORY OF THE APPLICATION  
[7]  
Previous applications for a Site Plan Approval (City File Number 535-9/12) and  
Minor Variances (City File Numbers 530-2-A1/2013 and A223/2002) were approved by  
the City to facilitate the proposed development, being one four-storey apartment  
building along the western limits of the site (SP), and one four-storey apartment building  
along the southern limits of the site (4040 Upper Middle Road). The four-storey building  
along the southern limits of the site (4040 Upper Middle Road) received building permits  
and has since been constructed.  
[8]  
The previous Site Plan Approval allowed for both 4030 and 4040 Upper Middle  
Road to be constructed at four-storeys with 165 and 91 units and 290 and 156 parking  
spaces respectively.  
[9]  
A previously approved Zoning By-law Amendment (City File Number 2020.228)  
created a site-specific exception to the Residential High Density Zone (RH), 378, for the  
Subject Property which established setbacks from the exterior lot lines of the Subject  
Lands for all buildings.  
[10] Since the time of approvals, the Appellant has proceeded to finalize the  
condominium details for 4040 Upper Middle Road and has submitted a Standard  
Condominium Application (City File Number 525-11/19). The Appellant has also  
decided to seek an amendment to the existing Site Plan Agreement to permit a five-  
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storey building on 4030 Upper Middle Road where a four-storey building was previously  
approved, and submitted a Site Plan Amendment Application (City File Number MM-  
007/18).  
[11] These applications triggered the need for minor variance applications to facilitate  
the proposed construction. The variances were determined to be required through the  
zoning review process for these applications. The Standard Condominium Application  
triggered the need for a minor variance to the standard zone regulations for the Subject  
Lands as in the City of Burlington, the zoning regulations must be reviewed to the  
Condominium boundaries rather than the exterior property boundaries, resulting in the  
need for variances to the applicable setback provisions. Additionally, the Site Plan  
Amendment Application that proposed an additional storey and additional units for 4030  
Upper Middle Road triggered the need for a minor variance to parking rate provisions in  
the By-law for both 4030 and 4040 Upper Middle Road.  
[12] A final Minor Variance Application was submitted on November 6, 2020, after  
City By-law comments and questions were received. An updated dimensioned plan was  
submitted on February 4, 2021 and a COA hearing was then scheduled for April 14,  
2021.  
[13] The Planning Report presented to the COA confirmed the following variances  
were being requested for the Subject Property:  
1. To permit a 14m setback abutting the north property line (future Condominium  
limit line) for the proposed five storey apartment building including balconies  
instead of the minimum required 20m to facilitate a future Standard  
Condominium Application.  
2. To permit parking spaces to be located 3.9 m from a window of a habitable  
room for dwelling units located on the ground floor or basement instead of the  
minimum required 6 m for a proposed five storey apartment building.  
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OLT-21-001700  
3. To permit 0.2 (43) visitor parking spaces per unit instead of the minimum  
required 0.35 (75) to facilitate a proposed fifth storey to the approved four  
storey apartment building.  
4. To permit 1.0 (151) occupant parking spaces per one-bedroom unit instead of  
the minimum required 1.25 (189) for 151 proposed one-bedroom units to  
facilitate a proposed fifth storey to the approved four storey apartment  
building.  
5. To permit 1.25 (79) occupant parking spaces per two-bedroom unit instead of  
the minimum required 1.50 (95) to facilitate a proposed fifth storey to the  
approved four storey apartment building.  
6. To permit 71% (196) of required occupant spaces to be enclosed in a below-  
grade structure instead of the minimum required 75% (205) to facilitate a  
proposed fifth storey addition to the approved four storey apartment building.  
7. To permit 8 designated accessible occupant parking spaces instead of the  
minimum required 9 to facilitate a proposed fifth storey to the approved four  
storey apartment building.  
8. To permit development on a parcel of land (future Condominium) that does  
not have frontage on a public street where the By-law requires that no  
building or structure shall be constructed on a parcel of land which does not  
have frontage on a public street to facilitate the proposed Condominium at  
4040 Upper Middle Road.  
9. To permit 36 below-grade parking spaces for Block 1 (4030 Upper Middle  
Road) to have temporary access through Block 2 (4040 Upper Middle Road)  
instead of each parking space being readily accessible without obstructions at  
all times for the parking and removal of a motor vehicle.  
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10.To permit a 0m setback for the existing below-grade parking structure for the  
existing four-storey building to the north, west and east property lines  
(proposed condominium limit line) instead of the minimum required 3m to  
facilitate the proposed Condominium at 4040 Upper Middle Road.  
[14] The Planning Staff supported all the variances except for variance in paragraph  
[13] item 7 above.  
[15] The COA’s decision approved the following variances:  
1. To permit a 14m setback abutting the north property line (future Condominium  
limit line) for the proposed five storey apartment building including balconies  
instead of the minimum required 20m to facilitate a future Standard  
Condominium Application.  
8. To permit development on a parcel of land (future Condominium) that does  
not have frontage on a public street where the By-law requires that no  
building or structure shall be constructed on a parcel of land which does not  
have frontage on a public street to facilitate the proposed Condominium at  
4040 Upper Middle Road.  
10.To permit a 0m setback for the existing below-grade parking structure for the  
existing four-storey building to the north, west and east property lines  
(proposed condominium limit line) instead of the minimum required 3m to  
facilitate the proposed Condominium at 4040 Upper Middle Road.  
[16] The COA also implemented the following conditions for the approved variances:  
The following conditions must be satisfied within 2 years:  
1. The Applicant shall obtain a Consolidated Pre-Building permit  
clearance.  
[17] Following the decision by the COA, the Appeal to the City’s Zoning By-law No.  
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OLT-21-001700  
2020.414 was decided by the Ontario Land Tribunal on May 21, 2021 (case PL190525)  
which implemented the following new parking rate provisions as follows:  
a. 1 occupant space per one-bedroom unit;  
b. 1.25 occupant spaces per two-bedroom unit;  
c. 1.5 occupant spaces per three or more bedroom unit;  
d. 0.25 visitor spaces per unit; and  
e. 1 additional space per 75 units for the use of maintenance vehicles serving  
the site.  
[18] Due to this decision, the variances before the Tribunal at this hearing are:  
1. To permit a 14m setback abutting the north property line (future Condominium  
limit line) for the proposed five storey apartment building including balconies  
instead of the minimum required 20m to facilitate a future Standard  
Condominium Application.  
2. To permit parking spaces to be located 3.9 m from a window of a habitable  
room for dwelling units located on the ground floor or basement instead of the  
minimum required 6 m for a proposed five storey apartment building.  
3. To permit 0.2 (43) visitor parking spaces per unit instead of the minimum  
required 0.25 (54) to facilitate a proposed fifth storey to the approved four  
storey apartment building.  
8. To permit development on a parcel of land (future Condominium) that does  
not have frontage on a public street where the By-law requires that no  
building or structure shall be constructed on a parcel of land which does not  
have frontage on a public street to facilitate the proposed Condominium at  
4040 Upper Middle Road.  
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9. To permit 36 below-grade parking spaces for Block 1 (4030 Upper Middle  
Road) to have temporary access through Block 2 (4040 Upper Middle Road)  
instead of each parking space being readily accessible without obstructions at  
all times for the parking and removal of a motor vehicle.  
10.To permit a 0m setback for the existing below-grade parking structure for the  
existing four-storey building to the north, west and east property lines  
(proposed condominium limit line) instead of the minimum required 3m to  
facilitate the proposed Condominium at 4040 Upper Middle Road.  
[19] Due to discussions between the City and the Appellant, an additional variance  
has been requested to be added for the Hearing of this matter. The requested variance  
is as follows:  
11.To permit 0 maintenance vehicles per unit instead of the minimum required 1  
additional space per 75 units for the use of maintenance vehicles servicing  
the site to facilitate a proposed fifth storey to the approved four storey  
apartment building.  
[20] The positions of the City and the Appellant were that this added variance was  
minor in nature with regard to s. 45(18) of the Act. It was the submission of the City and  
the Appellant that this added variance would not require further notice pursuant to s. 45  
(18.1.1) of the Act. The Tribunal agreed and no further notice would be required.  
EVIDENCE AND SUBMISSIONS  
[21] The Tribunal heard from only one witness, Melinda MacRory, an Associate with  
MHBC Planning, on behalf of the Appellant. Ms. MacRory was affirmed and qualified  
without objection, to provide expert opinion evidence in the area of land use planning.  
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PLANNING EVIDENCE  
[22] The Tribunal must consider whether the variances have sufficient regard to the  
provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy  
Statement, 2020 (the “PPS”), conform with the Growth Plan for the Greater Golden  
Horseshoe, 2019 (the “Growth Plan”), and meet each of the four tests of a minor  
variance in s. 45(1) of the Act.  
PROVINCIAL POLICY STATEMENT, 2020  
[23] Ms. MacRory opined that the Amended Application before the Tribunal is  
consistent with the PPS including the following policies:  
1.1.2 Sufficient land shall be made available to accommodate an  
appropriate range and mix of land uses to meet projected needs for a  
time horizon of up to 25 years, informed by provincial guidelines.  
However, where an alternate time period has been established for  
specific areas of the Province as a result of a provincial planning  
exercise or a provincial plan, that time frame may be used for  
municipalities within the area.  
Within settlement areas, sufficient land shall be made available through  
intensification and redevelopment and, if necessary, designated growth  
areas.  
1.1.3.1 Settlement areas shall be the focus of growth and development.  
1.1.3.2 Land use patterns within settlement areas shall be based on  
densities and a mix of land uses which:  
a) efficiently use land and resources;  
b) are appropriate for, and efficiently use, the infrastructure and  
public service facilities which are planned or available, and avoid the  
need for their unjustified and/or uneconomical expansion;  
c) minimize negative impacts to air quality and climate change, and  
promote energy efficiency;  
d) prepare for the impacts of a changing climate  
e) support active transportation;  
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f) are transit-supportive, where transit is planned, exists or may be  
developed; and  
g) are freight-supportive  
1.1.3.6 New development taking place in designated growth areas  
should occur adjacent to the existing built-up area and should have a  
compact form, mix of uses and densities that allow for the efficient use of  
land, infrastructure and public service facilities.  
[24] The PPS directs development to established built-up areas where there is  
existing municipal infrastructure. Intensification and redevelopment are encouraged as  
is a range and mix of housing types and densities.  
[25] Ms. MacRory opined that the approval of the proposed variances would maintain  
the existing residential uses on the Subject Property and would allow for intensification  
of the Subject Lands which is compatible with adjacent uses and would appropriately  
utilize existing infrastructure.  
[26] In Ms. MacRory’s opinion, the variances are consistent with the policy objectives  
of the PPS.  
GROWTH PLAN FOR THE GREATER HORSESHOE, 2019  
[27] Ms. MacRory opined that the Growth Plan sets out broad policies for the  
development of urban areas in the Greater Golden Horseshoe, including the promotion  
of compact urban form through the intensification of existing urban areas. The intent is  
to use land and infrastructure better to avoid the outward expansion of our communities.  
[28] Ms. MacRory opined that the specific policies that are relevant to the Application  
before the Tribunal are policies 2.2.1.2(a), 2.2.1.4(c), (e) and (f), and policy 2.2.6.  
[29] Policy 2.2.1.2(a) speaks to the forecasted growth as follows:  
2.2.1.2 Forecasted growth to the horizon of this Plan will be allocated  
based on the following:  
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a) the vast majority of growth will be directed to settlement areas  
that:  
i.  
have a delineated built boundary;  
ii.  
have existing or planned municipal water and  
wastewater systems; and  
iii.  
can support the achievement of complete communities;  
[30] Policy 2.2.1.4 states that the Growth Plan will support the achievement of  
complete communities that:  
c) provide a diverse range and mix of housing options, including  
additional residential units and affordable housing, to accommodate  
people at all stages of life, and to accommodate the needs of all  
household sizes and incomes;  
e) provide for a more compact built form and a vibrant public realm,  
including public open spaces;  
f) mitigate and adapt to the impacts of a changing climate, improve  
resilience and reduce greenhouse gas emissions, and contribute to  
environmental sustainability.  
[31] Policy 2.2.6 for housing includes the following:  
1. Upper and single-tier municipalities, in consultation with lower-tier  
municipalities, the Province, and other appropriate stakeholders, will:  
a) support housing choice through the achievement of the minimum  
intensification and density targets in this Plan, as well as the other  
policies of this Plan by:  
i. identifying a diverse range and mix of housing options and  
densities, including additional residential units and affordable  
housing to meet projected needs of current and future  
residents; and  
ii. establishing targets for affordable ownership housing and  
rental housing;  
b) identify mechanisms, including the use of land use planning and  
financial tools, to support the implementation of policy 2.2.6.1 a);  
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c) align land use planning with applicable housing and homelessness  
plans required under the Housing Services Act, 2011;  
d) address housing needs in accordance with provincial policy  
statements such as the Policy Statement: “Service Manager Housing  
and Homelessness Plans”; and  
e) implement policy 2.2.6.1 a), b), c) and d) through official plan  
policies and designations and zoning by-laws.  
2. Notwithstanding policy 1.4.1 of the PPS, 2020, in implementing policy  
2.2.6.1, municipalities will support the achievement of complete  
communities by:  
a) planning to accommodate forecasted growth to the horizon of this  
Plan;  
b) planning to achieve the minimum intensification and density  
targets in this Plan;  
c) considering the range and mix of housing options and densities of  
the existing housing stock; and  
d) planning to diversify their overall housing stock across the  
municipality.  
3. To support the achievement of complete communities, municipalities  
will consider the use of available tools to require that multi-unit residential  
developments incorporate a mix of unit sizes to accommodate a diverse  
range of household sizes and incomes.  
4. Municipalities will maintain at all times where development is to occur,  
land with servicing capacity sufficient to provide at least a three-year  
supply of residential units. This supply will include, and may exclusively  
consist of, lands suitably zoned for intensification and redevelopment.  
5. When a settlement area boundary has been expanded in accordance  
with the policies in subsection 2.2.8, the new designated greenfield area  
will be planned in accordance with policies 2.2.6.1 and 2.2.6.2.  
[32] Ms. MacRory opined that the Application does conform to the Growth Plan for the  
Greater Golden Horseshoe, 2019.  
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THE LEGISLATIVE TESTS OF A MINOR VARIANCE  
[33] The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act,  
which sets out the four tests that must be satisfied by an applicant, when making an  
application for the authorization of variances. The tests require that that the variances:  
a. maintain the general intent and purpose of the Official Plan;  
b. maintain the general intent and purpose of the Zoning By-law;  
c. be desirable for the appropriate development or use of the land,  
building or structure; and  
d. be minor in nature.  
MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE BOP  
[34] Ms. MacRory stated that the SP is designated “Residential Areas” in Schedule A  
– Settlement Pattern and “Residential – High Density” in Schedule B – Comprehensive  
Land Use Plan Urban Planning Area in the BOF. Ms. MacRory stated that the Subject  
Property meets the following policies:  
[35] The “Residential – High Density” designation permits a wide variety of uses  
including street townhouses, stacked townhouses, back-to-back townhouses, attached  
housing and apartments as stated in General Policy 2.2.2.g.(iii):  
Building form g) The following building forms for residential  
development shall be permitted:  
High Density  
(iii) subject to the density requirements of Part III,  
Subsection 2.2.2 e), street townhouses and stacked  
townhouses, back-to-back townhouses, attached  
housing and apartments shall be permitted in  
Residential-High Density areas.  
[36] Ms. MacRory opined that the general policies of the BOP support intensification  
within the Urban Area if infrastructure capacity, compatibility and integration with  
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existing residential neighbourhoods are also balanced and scale (Policy 2.2.1.a), and  
urban design and community features are considered (Policy 2.5.1.a). The proposed  
development implements intensification that can adequately be supported by existing  
infrastructure as reviewed and confirmed by previous approvals, is considered  
compatible to the existing neighbourhood in terms of design and scale, and is well  
integrated as a high density node at a major intersection that transitions to medium  
density uses to the south followed by low density residential. The proposal also  
contributes to providing a wider range of housing types and tenure and increases  
housing stock in the area with the high-density block offering condominium style  
apartment units with one and two-bedroom units (Policy 2.2.1.f).  
Policy 2.2.1(a) states:  
To encourage new residential development and residential intensification  
within the Urban Planning Area in accordance with Provincial growth  
management objectives, while recognizing that the amount and form of  
intensification must be balanced with other planning considerations, such as  
infrastructure capacity, compatibility and integration with existing residential  
neighbourhoods.  
Policy 2.5.1(a) states:  
To encourage residential intensification as a means of increasing the amount  
of available housing stock including rooming, boarding and lodging houses,  
accessory dwelling units, infill, re-development and conversions within  
existing neighbourhoods, provided the additional housing is compatible with  
the scale, urban design and community features of the neighbourhood.  
Policy 2.2.1(f) states:  
To encourage the integration of a wide range of housing types and tenure and  
discourage large concentrations of higher density residential blocks.  
[37] Ms. MacRory opined that the proposed development includes the re-  
development of an under-utilized site for non-ground-oriented housing purposes at the  
periphery of an existing residential neighbourhood. The general intent and purpose of  
the BOP is to promote development and intensification within lands designated as  
Residential - High Density with densities ranging from 51 to 185 units per net hectare  
and Floor Area Ratio of 2.2.1. The proposed development implements a permitted use,  
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OLT-21-001700  
the planned density and the Floor Area Ratio for the Subject Property.  
[38] In Ms. MacRory’s opinion, the minor variances meet the general intent and  
purpose of the BOP.  
MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW  
[39] Ms. MacRory stated the Subject Lands are currently zoned as Residential High  
Density - 4 (RH4-378) in Zoning By-law 2020. The RH4-378 Zone permits a wide range  
of uses, including apartment buildings, stacked townhouses, back-to-back townhouses,  
street townhouses and retirement homes. The provisions applicable to the SP are  
included in the following table along with the proposed reductions. The table also  
includes the parking provisions incorporated through the new Parking By-law 2020.414  
which are now in-effect:  
Provision  
Requirement  
Proposed - 4030  
Upper Middle Road  
RH4 Zone General Provisions  
Lot Width  
45 m  
86.2 m  
Lot Area  
0.2 ha  
25 sq. m. per bedroom  
4.5 m abutting a street having a deemed < 4.5 m abutting Upper  
width up to 26 m Middle Rd.  
13185.4 sq. m./1.318 ha  
25 sq. m. per bedroom  
Amenity Area  
Landscape Area and  
Buffer  
Parking  
1 occupant space per one bedroom unit 1 per  
1.25 occupant spaces per two bedroom 1.25 per  
unit  
1.5 occupant spaces per three or more  
bedroom  
N/A  
0.25 visitor spaces per unit  
1 additional space per 75 units for the  
use of maintenance vehicles servicing  
the site  
0.20 per  
214 units  
3 spaces  
Designated Accessible Over 90 spaces 3% of required  
8 proposed  
parking  
Parking Spaces  
Total of 271 required spaces  
= 8 spaces required  
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Enclosed Occupant  
Parking  
RH4 Zone: 75% of all required occupant 85%  
parking  
H-RH4-378 Site-Specific Regulations:  
Max. Height  
7 storeys, within 60 m of the southerly  
5 storeys  
property boundary; 8 storeys, abutting  
the easterly property boundary and  
Upper Middle Road  
Landscaped Area and  
Buffer  
Not required, abutting westerly property N/A  
boundary; Not required, abutting  
southerly property boundary.  
Density  
Floor Area Ratio  
Does not apply  
2.2:1 maximum  
N/A  
1.43:1  
Based on GFA of:  
18,941 sq. m.  
N/A  
Total Ground Floor  
Area for retail, service  
commercial and office  
uses  
2500 sq. m.  
Building Setbacks  
From Tobyn Drive  
From north property  
line  
7.5 m  
20 m  
N/A  
14 m  
From south property  
line  
15 m  
23.2 m  
From east property line 6 m  
From west property line 13 m  
From pipeline easement 2 m  
8.96 m  
13.02 m  
> 2 m  
General Provisions for Residential Zones  
Parking Lot  
Parking lots shall be setback 4.5 m from 24.256 m to northern  
a street line.  
property limit  
Parking Spaces and  
Driveways  
For apartment buildings 4 storeys or  
more in height, driveways shall be  
setback 9 m and parking spaces 6 m  
from a window of a habitable room in  
dwelling units located on the ground  
floor or basement.  
9 m for driveways  
3.9 m for parking  
General Provisions for Parking Structures  
Entrance and exit  
ramps to below grade  
and above grade  
Entrance and exit ramps to below grade 65.3 m  
and above grade parking structures or  
buildings shall be setback 7.5 m from a  
street line.  
parking structures  
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Below grade parking  
structures  
Below grade parking structures shall not 0 m setback for below  
grade parking to  
extend into a required landscape buffer  
and shall be setback 3 m from all other  
property lines and street lines.  
condominium lines  
> 3 m setback from  
below grade parking  
from all other property  
lines  
Parking Space Size & Accessibility  
Size and accessibility  
Each parking space shall have a  
36 below-grade parking  
spaces for Block 1 (4030  
Upper Middle Road) to  
have temporary access  
minimum width of 2.75 m and a  
minimum area of 16.5 sq. m. and be  
readily accessible without obstructions  
at all times for parking and removal of a through Block 2 (4040  
motor vehicle without the necessity of Upper Middle Road)  
moving any other vehicle or obstruction. instead of each parking  
The minimum area of a parking space  
may include walkways for residential  
uses only.  
space being readily  
accessible without  
obstructions at all times  
for the parking and  
removal of a motor  
vehicle.  
Frontage On a Public Street  
Frontage on a Public  
Street  
Excepting Lots of Record and  
Parcels of Tied Land in a  
Common Element  
Condominium Corporation, no building  
or structure shall be constructed on a  
parcel of land which does not have  
frontage on a public street.  
Development on a parcel  
of land (future  
Condominium) that does  
not have frontage on a  
public street where the  
Bylaw requires that no  
building or structure shall  
be constructed on a  
parcel of land which  
does not have frontage  
on a public street.  
[40] The reduced parking rate proposed for the development at 1 space per 1-  
bedroom unit, 1.25 spaces per 2-bedroom unit, 0.2 spaces per unit for visitors, and 3%  
of all parking for accessible parking stalls (based on these noted rates) is considered  
appropriate for the proposed development as discussed in the Parking Justification  
Report prepared by Paradigm and submitted with the previous submission dated July  
2018, and the Addendum Letter dated October 1, 2020. As noted, these rates are now  
in effect except for the visitor rate which was approved at 0.25 spaces per unit.  
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[41] Minor reductions to the required setbacks from habitable rooms to parking stalls  
is required. The By-law requires 6 metre setbacks from parking stalls to habitable  
rooms. Block 1 implements a minimum setback of 3.9 metres. This reduction is  
considered minor and there will be landscaping and a pedestrian sidewalk between the  
units and parking providing a landscaped buffer and providing for patio access to the  
ground floor units.  
[42] The reduced setbacks to habitable rooms were previously approved as part of a  
Minor Variance application in 2002 (A223/2002). The previous approval for proposed  
reductions for both Blocks represents support from the City that this variance maintains  
the general intent and purpose of the Zoning By-law.  
[43] The proposed reduction to the northern property line setback from 20 m to 14 m  
is only required when assessing the regulation to the condominium lines rather than the  
lot lines. The minimum provisions are maintained when considered for the entire lot.  
Given that the Subject Property will develop with the appearance of one comprehensive  
development, this reduction is technical in nature and the proposed development  
continues to maintain the general intent and purposes of the Zoning By-law.  
[44] Similarly, the proposed reduction to the below-grade parking structure setback  
from 3 m to 0 m is only required when assessing the regulation to the condominium  
lines rather than the lot lines. A 3 m setback is provided to the exterior lot lines for the  
shared underground parking structure. Therefore, this reduction is technical in nature  
and the proposed development continues to maintain the general intent and purposes of  
the Zoning By-law.  
[45] Similarly, the variance to allow for the development on a parcel of land (future  
Condominium) that does not have frontage on a public street where the By-law requires  
that no building or structure shall be constructed on a parcel of land which does not  
have frontage on a public street, is only required due to the implementation of  
condominium lines. Block 1 (4030 Upper Middle Road) will maintain access through  
Block 2 (4040 Upper Middle Road) to Tobyn Drive and therefore, this variance is also  
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OLT-21-001700  
technical in nature and the proposed development continues to maintain the general  
intent and purposes of the Zoning By-law.  
[46] The variance to allow for 36 below-grade parking spaces for Block 1 to have  
temporary access through Block 2, rather than each parking space being readily  
accessible without obstructions at all times is only required because currently Block 1  
has not been constructed and therefore access to the existing underground parking  
spaces already built for Block 1 can only currently be accessed through Block 2. Again,  
this variance is technical in nature and once Block 2 is constructed will technically not  
be required. Therefore, the proposed development continues to maintain the general  
intent and purposes of the Zoning By-law.  
[47] The variance to permit 0 maintenance vehicles per unit instead of the minimum  
required 1 additional space per 75 units (3 spaces for 214 units) for the use of  
maintenance vehicles servicing the site is a minor reduction. Maintenance vehicles  
typically service residential buildings during business hours when the visitor parking  
demand is lower, therefore it is expected that the maintenance vehicles can be  
accommodated in the visitor parking. Consequently, the proposed development  
continues to maintain the general intent and purpose of the Zoning By-law.  
[48] Based on this evidence, Ms. MacRory opined that the purposed variances meet  
the general intent and purposes of the City’s Zoning By-law.  
DESIRABLE FOR THE APPROPRIATE USE OF THE LAND  
[49] Ms. MacRory opined that the proposal has been subject to previous planning  
applications where it has been determined that the proposed development represents  
an appropriate development and use for the lands. The proposed reductions to the  
zoning provisions for the north property line setback, below grade parking setback as  
well as the below-grade parking access and variance to allow for development on a  
parcel of land that does not have frontage on a public street are all only required due to  
the implementation of Standard Condominiums on the Subject Property. The  
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OLT-21-001700  
implementation of the Standard Condominiums requires the zoning provisions to be  
considered from the condominium lines rather than the external lot lines. The proposed  
development complies to the zoning provisions in this regard when taken from the  
external lot lines and therefore these variances are technical in nature and do not  
impact the appropriateness of the development for the Subject Property. Further, the  
reduced setbacks to the condominium lines rather than the lot lines were approved by  
the COA for the Subject Property.  
[50] Ms. MacRory also opined that the reduced parking rates are appropriate for the  
Subject Property as they allow for the opportunity to minimize surface parking and  
underground parking to limit the development footprint, maximize landscaped area, and  
provide parking that is adequate for the proposed use without resulting in an excess and  
surplus parking. The proposed development is condominium in tenure, therefore,  
parking is tied to the unit which will ensure that units are purchased in accordance with  
demand for parking. The reduced parking rate proposed for the development is  
considered appropriate for the proposed development as discussed in the Parking  
Justification Report prepared by Paradigm and submitted with the previous submission  
dated July 2018, and the Addendum Letter dated October 1, 2020. The reduced parking  
rate for maintenance vehicles servicing the site is a minor reduction and due to the fact  
that maintenance vehicles typically service residential buildings during business hours  
when the visitor parking demand is lower it is expected that the maintenance vehicles  
can be accommodated in the visitor parking, therefore, not impacting the appropriate  
use of the Subject Property.  
[51] A minor reduction to the required setback for parking to habitable rooms does not  
impact the appropriateness of the development on the SP as the reduction is minor and  
will be mitigated with landscaping. As noted, the reduced setbacks to habitable rooms  
were previously approved as part of a Minor Variance application in 2002 (A223/2002).  
The previous approval for proposed reductions for both 4030 and 4040 Upper Middle  
Road represents support from the City that this variance does not impact the  
appropriateness of the development on the Subject Property.  
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[52] In her opinion, Ms. MacRory stated the proposed variances are desirable and an  
appropriate use of the land.  
MINOR IN NATURE  
[53] Ms. MacRory opined that the test for development is not a test of “no impact”, but  
rather, impact that rises to the level of being unacceptable adverse impact of a planning  
nature. The variances do not create any undue adverse impacts on the streetscape or  
the adjacent neighbours.  
[54] The proposed reductions to the zoning provisions for the north property line  
setback, below grade parking setback, as well as the below-grade parking access and  
variance to allow for development on a parcel of land that does not have frontage on a  
public street, are all only required due to the implementation of Standard Condominiums  
on the Subject Lands. The proposed development complies to the zoning provisions in  
this regard when taken from the external lot lines and therefore these variances are  
technical in nature and are considered minor in order to implement a Standard  
Condominium for the Subject Property.  
[55] The proposed reduced parking rates are now in accordance with the in-effect  
Zoning By-law No. 2020.414. Further, the reduced parking rates are considered  
appropriate for the proposed development as discussed in the Parking Justification  
Report prepared by Paradigm and submitted with the previous submission dated July  
2018, and the Addendum Letter dated October 1, 2020. The reduced parking rate for  
maintenance vehicles servicing the site is a minor reduction since maintenance vehicles  
typically service residential buildings during business hours when the visitor parking  
demand is lower, therefore it is expected that the maintenance vehicles can be  
accommodated in the visitor parking.  
[56] The proposed reduced setback from parking spaces to habitable rooms  
represents a minor decrease from the requirement. There will be landscaping and a  
pedestrian sidewalk along with a corridor providing a landscaped buffer and providing  
22  
OLT-21-001700  
for patio access to the ground floor units.  
[57] In her opinion, Ms. MacRory states that the proposed variances individually and  
collectively do not create any undue adverse impact and are minor in nature. The letters  
of opposition that were received addressed concern with reduced resident and visitor  
parking rates and concern with allowing temporary access for Block 2 (4040 Upper  
Middle Road) through Block 1 (4030 Upper Middle Road) to access parking spaces in  
the shared underground parking. As noted above, the resident and visitor parking  
variances are no longer required. The temporary access is only required for Block 1 to  
conform to the zoning provision before its construction when access will be provided.  
Further, this variance is only required when assessing the zoning provision to the  
condominium line rather than the exterior lot lines since the underground parking is  
shared between both Block 1 and 2 buildings. Therefore, it is Ms. MacRory’s opinion  
that the parking and access issues do not create any undue adverse impact.  
[58] In conclusion, Ms. MacRory opined that the Application has regard for matters of  
provincial interest and are consistent with the PPS. The minor variances meet the tests  
as required in s. 45(1) of the Act in that they maintain the general intent and purpose of  
the BOP, the general intent and purpose of the Zoning By-law, are appropriate and  
desirable for the use and development of the property and are minor in nature.  
FINDINGS  
[59] Based on the uncontroverted evidence provided by Ms. MacRory, the Tribunal  
finds that the minor variances have appropriate regard to matters of provincial interest  
found in s. 2 of the Act, is consistent with the PPS and conforms to the Growth Plan.  
[60] The Tribunal finds the requested variance meets the four tests of s. 45 (1) of  
the Act:  
a.  
the general intent and purpose of the BOP is maintained;  
23  
OLT-21-001700  
b.  
c.  
the general intent and purpose of the ZBL is maintained;  
the variance is considered desirable for the appropriate development of the  
land; and  
d.  
the variance is minor in nature.  
ORDER  
[61] The Tribunal Orders that the appeal is allowed in part and the variances to the  
City of Burlington By-law 2020 are authorized as listed below and subject to the  
conditions in attachment 1:  
a.  
To permit a 14 m setback abutting the north property line (future  
Condominium limit line) for the proposed five storey apartment building  
including balconies instead of the minimum required 20 m to facilitate a  
future Standard Condominium Application.  
b.  
c.  
d.  
To permit parking spaces to be located 3.9 m from a window of a habitable  
room for dwelling units located on the ground floor or basement instead of  
the minimum required 6 m for a proposed five storey apartment building.  
To permit 0.2 (43) visitor parking spaces per unit instead of the minimum  
required 0.25 (54) to facilitate a proposed fifth storey to the approved four  
storey apartment building.  
To permit development on a parcel of land (future Condominium) that does  
not have frontage on a public street where the By-law requires that no  
building or structure shall be constructed on a parcel of land which does  
not have frontage on a public street to facilitate the proposed Condominium  
at 4040 Upper Middle Road.  
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OLT-21-001700  
e.  
To permit 36 below-grade parking spaces for Block 1 (4030 Upper Middle  
Road) to have temporary access through Block 2 (4040 Upper Middle  
Road) instead of each parking space being readily accessible without  
obstructions at all times for the parking and removal of a motor vehicle.  
f.  
To permit a 0 m setback for the existing below-grade parking structure for  
the existing four-storey building to the north, west and east property lines  
(proposed condominium limit line) instead of the minimum required 3 m to  
facilitate the proposed Condominium at 4040 Upper Middle Road.  
g.  
To permit 0 maintenance vehicles per unit instead of the minimum required  
1 additional space per 75 units for the use of maintenance vehicles  
servicing the site to facilitate a proposed fifth storey to the approved four  
storey apartment building.  
S. deBoer”  
S. DEBOER  
MEMBER  
Ontario Land Tribunal  
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248  
The Conservation Review Board, the Environmental Review Tribunal, the Local  
Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and  
continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding  
tribunals or the former Ontario Municipal Board is deemed to be a reference to the  
Tribunal.  
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OLT-21-001700  
ATTACHMENT 1  
Requested Conditions of Approval  
As updated with Applicant’s requested wording  
1. A Zoning Clearance Certificate is required for the proposed fifth storey.  
2. The applicant shall submit a landscape plan (with plant keys), section(s) and details  
for approval as a part of the concurrent application for Minor Modification Site Plan  
Approval with special care given to mitigating the impact of headlight glare and  
noise from the parking area to the adjacent residential unit, to the satisfaction of City  
Planning staff. For greater clarity, salt-resistant plant species will be permitted.  


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