Old Lakeshore Inc. v City of Burlington

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE: September 02, 2022

CASE NO(S).:

OLT-22-002451

(Formerly PL200557)

PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990,

c. P. 13, as amended.

Applicant/Appellant:

Subject:

Old Lakeshore (Burlington) Inc.

Request to amend the Official Plan – Failure to

adopt the requested amendment

To permit a 27-storey apartment building with

retail/commercial at grade

505-02/20

Description:

Reference Number:

Property Address:

2107 Old Lakeshore Road & 2119 Lakeshore

Road

Municipality/UT:

Burlington/Halton

OLT Case No:

OLT-22-002451

Legacy Case No:

OLT Lead Case No:

Legacy Lead Case No:

PL200557

OLT-22-002451

PL200557

Old Lakeshore (Burlington) Inc. v. Burlington

(City.)

OLT Case Name:

PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O.

1990, c. P. 13, as amended.

Application to amend the Zoning By-law –

Refusal or neglect to make a decision

Subject:

To permit a 27-storey apartment building with

retail/commercial at grade

Description:

Reference Number:

Property Address:

520-03/20

2107 Old Lakeshore Road & 2119 Lakeshore

Road

Municipality/UT:

OLT Case No:

Legacy Case No:

OLT Lead Case No:

Legacy Lead Case No:

Burlington/Halton

OLT-22-002452

PL200558

OLT-22-002451

PL200557

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OLT-22-002451

Heard:

June 14, 2022 to June 30, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Old Lakeshore (Burlington) Inc.

Scott Snider

(“Applicant/Appellant”)

Anna Toumanians

City of Burlington (“City”)

Andrew Biggart

Kelly Yerxa

Regional Municipality of Halton

(“Region”)

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

INTRODUCTION

[1]

This was the Hearing in the matter of appeals by Old Lakeshore (Burlington) Inc.

(the “Applicant/Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act (the

“Act”) from the failure of the City of Burlington (“City”) to make a decision with respect to

an application for an Official Plan Amendment (“OPA”) and a Zoning By-law

Amendment (“ZBA”) within the statutory time periods, with respect to the Applicant’s

lands comprising 0.2 hectares (“ha”) municipally known as 2107 Old Lakeshore Road

and 2119 Lakeshore Road in the City (“subject lands/subject property/subject site”).

[2]

The proposed OPA and ZBA were requested to facilitate the redevelopment of

the subject lands with a 27 Storey Mixed Use Building that consists of retail/service

commercial uses on the ground floor and residential uses above. A total of 196

residential units are proposed in the redevelopment.

[3]

Core FSC Lakeshore LP has withdrawn and was no longer a party to the

proceedings. Halton Condominium Corporation 160 (“HCC”) requested in writing to be

downgraded from party to participant. This was granted without objections. HCC’s

participant statement has been considered. It generally stated that the proposed

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OLT-22-002451

building design, massing, its construction and traffic effects will adversely affect the

privacy and quality of life of its residents.

[4]

The Region’s Counsel, Ms. Yerxa requested that she be excused from attending

the hearing, as the Region and the Appellant had conditionally agreed that there was

just one issue of site rehabilitation between them. In the event that the Tribunal finds for

the Applicant/Appellant, the Region is content if the order is withheld until Site Plan

Approval is addressed. Ms. Yerxa was accordingly excused for the duration of the

hearing. The Region’s expert witness statement was disregarded for the purpose of

these proceedings.

HEARING

[5]

The City listed twenty-three issues for determination. Wind and noise are not live

issues. The parking rate has been agreed at 1.07 per unit and there is no lay-by parking

in the revised concept plan. The original concept plan enclosed with the original

applications has been revised and placed before this Tribunal. The Tribunal did not sit

on June 20, 2022 as an Applicant’s witness was unavailable.

Issues

[6]

The issues, in the Tribunal’s view are:

1. Is the proposed development at an appropriate level of intensification and

density?

2. Does the proposal address the matters required in an appropriate Urban

Design?

3. Does the OPA and ZBA meet the requirements of the policy and legislative

framework?

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OLT-22-002451

4. Is the proposed development compatible with the existing and planned

neighbourhood context, good land use planning and in the public interest?

[7]

The proposed OPA and ZBA are evaluated against the Provincial Policies and

Legislative Framework that apply to these applications.

Witnesses

[8]

The Applicant called a total of ten expert witnesses, and the City called five

experts:

Applicant

1.

2.

3.

4.

5.

6.

Michael Goldberg – Land use planning

Enzo Corazza – Architectural

Scott Llewellyn – Municipal and land development Engineering

Ralph Bouwmeester– Sun and Shadow analysis

Stewart Elkins – Transportation planning

Matt Bielaski– Geotechnical, Hydrogeological Environmental

Engineering

7.

8.

9.

10.

Jeanette Gillezeau – Land use economics and demographics

Tom Kasprzak – Urban Design and Land use

Michael Hannay – Urban Design and Land use

Paul Ferris – Landscape Architecture

City

11.

12.

13.

14.

Franco Romano – Land use planning

Todd Evershed – Land use and urban design

Zelaikha Shareqi – Landscape architecture

Kaylan Edgcumbe – Transportation planning and Traffic

engineering

15.

Joshua Medeiros – Municipal Engineering and servicing

[9]

The above witnesses were affirmed/sworn and qualified by the Tribunal to give

expert opinions in their respective disciplines.

[10] The City is strongly opposed to the redevelopment. The contrary position is firmly

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OLT-22-002451

held by the Applicant’s expert witnesses.

[11] The Tribunal prefers and is persuaded by the opinion evidence of the Applicant’s

expert witnesses that the applications should be approved.

[12] Franco Romano, the Land Use Planner called by the City, opined that the

appeals should be dismissed. However, he stated that the appropriate s. 37 Planning

Act benefits may be imposed by the City in the event the Tribunal finds in favour of the

proposed development.

[13] Subject to the specific conditions that will be imposed, and after careful

consideration of the evidence and policies, the Tribunal finds that the proposal

represents good land use planning, and that it is in the public interest.

Site Context

[14] The subject site is located at the eastern confluence of Old Lakeshore Road and

Lakeshore Road, between Torrance Street and Martha Street. Old Lakeshore Road

loops to/from Lakeshore Road from the extension of Pearl Street in the west to the

approximate mid-point between Martha Street and Torrance Street in the east. The

subject site forms part of this island-like condition with low-rise lakefront commercial

properties to the south and a variety of residential built forms to the east, north,

northeast and northwest.

[15] The subject site has an area of approximately 2,029 square metres (“m²”) (0.2

hectares, or 0.5 acres), is a roughly triangular configured parcel, with frontages on both

Lakeshore Road and Old Lakeshore Road. The frontage on Old Lakeshore Road is

69.0 metres (“m”) and the frontage on Lakeshore Road is 74.2 m. The west lot line that

stretches between Old Lakeshore Road in the south to Lakeshore Road in the north is

approximately 51.8 m long. The east lot line, at the confluence of Old Lakeshore Road

and Lakeshore Road, has a length of 9.2 m.

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OLT-22-002451

[16] The lands are currently occupied by a one (1)-storey condominium sales centre

for Carriage Gate Homes, and a one (1)-storey medical office building. The subject site

also contains two surface parking lots that are associated with each of the existing

buildings. Vehicular access to the site is currently provided by driveways to/from both

Lakeshore Road and Old Lakeshore Road.

[17] The subject site has generally flat topography, with moderate sloping land down

from west to east.

[18] Beyond the south lot line of the subject site, there is a public sidewalk within the

Old Lakeshore Road right-of-way whereas there is no public sidewalk adjacent to the

subject site along the Lakeshore Road right-of-way.

South of the Subject Site

[19] To the south of the subject site, on the south side of Old Lakeshore Road, are a

number of low-rise, house-form commercial buildings with frontages on Old Lakeshore

Road and rear lot lines abutting Lake Ontario. The uses in these buildings include

restaurants, a spa, a one (1)-storey hotel, and surface parking lots that back directly on

to the lake shore. There is a two (2)-storey designated heritage building at 2084 Old

Lakeshore Road, and a two (2)- storey listed heritage building at 2100 Old Lakeshore

Road.

East of the Subject Site

[20] Immediately southeast of the subject site, across Old Lakeshore Road and

backing onto the lake shore, is a two (2)-storey, residential townhouse complex known

as ‘Pier 21’ (2136 Old Lakeshore Road). Further east are five (5) residential apartment

buildings backing onto the Lake Ontario shoreline. These buildings include:18 storeys

(2160 Lakeshore Road), eight (8) storeys (2170 Lakeshore Road), 12 storeys (2190

Lakeshore Road), four (4) storeys (2196 Lakeshore Road), and nine (9) storeys (2210

Lakeshore Road).

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[21] All of the above-mentioned apartment buildings are shown in Schedule E –

Downtown Mixed Use Centre (“DMUC”), Land Use Plan, as being within the DMUC and

designated Downtown Residential – Medium and/or High Density Precinct.

[22] On the west side of Torrance Avenue, east of the subject site at 360 Torrance

Street is a long, slab styled 15-storey residential apartment building, the Rambo Creek

to the west of it, and what appears to be a vacant single detached dwelling at 2137

Lakeshore Road, west of the Rambo Creek. This area is also within the DMUC and

designated Downtown Residential – Medium and/or High Density. North of Lakeshore

Road, Torrance Avenue is the eastern boundary of the DMUC, east of which, are single

detached dwellings designated Residential – Low Density on Schedule B,

Comprehensive Land Use Plan – Urban Planning Area of the City OP.

West of the Subject Site

[23] The properties to the immediate west of the subject site, at 2093-2101 Old

Lakeshore Road and 2096-2100 Lakeshore Road, are proposed to be developed with a

27-storey, 88.4 m (including the mechanical penthouse), mixed use residential and

commercial building. This proposed development includes 310 residential units and

426.4 m²of commercial Gross Floor Area (“GFA”). The proposed applications for that

site have been appealed to the Ontario Land Tribunal (“OLT”) and the OLT has

approved this development on May 4, 2022 (CORE decision/Core Development/Core

Building).

[24] To the immediate west of the foregoing development proposal, there is a two (2)-

storey commercial building at the southeast corner of Lakeshore Road and Pearl Street

that is listed on the City’s Heritage Registry. This commercial building has surface

parking to its east and west.

[25] On the south side of Lakeshore Road, occupying the block from Old Lakeshore

Road in the east to Elizabeth Street in the west is the Bridgewater development, the

construction and occupancy of which are substantially complete. This development

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OLT-22-002451

consists of a 22-storey building with 100 dwelling units on the east portion of the site,

and two buildings of seven (7) and eight (8) storeys on the west portion of the site,

which are occupied by a hotel, office and residential uses.

[26] To the west of the Bridgewater development, on the south side of Lakeshore

Road from Elizabeth Street to Brant Street is 2020 Lakeshore Road, a proposed OPA

and ZBA submitted in December 2021 seeking approval for a development of 30 and 35

storey buildings containing commercial, hotel and residential uses. This application

remains in process.

North of the Subject Site

[27] Immediately north of the subject site is a five (5)-storey building at 2109

Lakeshore Road operated as Chartwell Martha’s Landing Retirement Residence

(“Chartwell”), and a seven (7)-storey residential building at 2121 Lakeshore Road. To

the north of the Chartwell facility, on the east side of Martha Street is a 12-storey

apartment building, north of which are single detached dwellings which are under OPA

and ZBA applications for a 12-storey residential building.

[28] On the northwest corner of Martha Street and Lakeshore Road, at 374-380

Martha Street, is the Nautique condominium project by ADI Developments (“ADI”),

which is currently under construction. This OPA and ZBA application was approved by

the Ontario Municipal Board (“OMB”) on February 13, 2018. This under construction

project is a 26-storey residential building with 240 dwelling units.

[29] Located immediately west of the ADI site is an October 27, 2021, Local Planning

Appeal Tribunal approved OPA and ZBA application on 2069-2079 Lakeshore Road

and 383-385 Pearl Street., by Lakeshore (Burlington) Inc., for a 29-storey mixed use

building with 320 residential units.

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Proposed Development and Applications

[30] The proposal is to demolish the existing buildings on the subject site and

construct a 27-storey (excluding the rooftop amenity space and mechanical units),

mixed use building, with 462 m²of retail and service commercial GFA in a one (1)-

storey podium level, with residential units above. The proposed residential GFA is

17,933 m²for a total GFA of 18,395 m². This will provide an overall residential density of

980 units per hectare and a Floor Area Ratio (“FAR”) of 10.4 times the lot area.

[31] By contrast, the existing City OP permissions for the Old Lakeshore Mixed Use

Precinct and the subject site, permit a minimum density of 51 units per net ha, a

minimum building height of two (2) storeys, and a maximum building height of six (6)

storeys or 19.5 m. Section 5.5.7.2d permits an increased height of up to a maximum of

eight (8) storeys and 29 m, subject to conditions. Section 5.5.7.2k permits an increased

height of up to a maximum of 12 storeys and 37 m, subject to similar conditions. It is

due to these City OP restrictions and prescriptions that an OPA application has been

filed.

[32] The one (1)-storey podium will contain the lobby, retail space, back of the house

service areas, loading, and the entrance ramp to the underground parking. The retail

space is included along all three (3) public street frontages, with the predominant depth

and breadth of the retail space being focused toward the east portion of the site at the

corner of Lakeshore Road and Old Lakeshore Road.

[33] The residential lobby entrance is located on the south side of the building,

fronting Old Lakeshore Road.

[34] Site access includes a controlled one-way southbound, 4.5 m wide service

vehicle through-driveway, entering from Lakeshore Road and exiting onto Old

Lakeshore Road. Site access for passenger vehicles enters the 6.9 m wide

underground garage ramp, shown toward the southwest portion of the site, to/from

Lakeshore Road. There are seven (7) levels of parking in the underground garage,

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OLT-22-002451

providing 210 parking spaces.

[35] The overall height of the 27-storey building is 92.5 m from established grade to

the top of the roof, plus a 7.0 m mechanical penthouse above, for a total height of 99.5

m.

[36] The building is proposed to have 196 dwelling units, with the following mix of unit

types:

1-Bedroom

2-Bedroom

3-Bedroom

Total

96

49.0%

36.7%

14.3%

100.0%

72

28

196

[37] The building is proposed to have indoor and outdoor amenity space of 524 m²

and 4,593 m², respectively, for a total amenity area of 5117 m². This amount of amenity

space exceeds the minimum requirement in the Zoning By-law No. 2020 by 3,920 m².

[38] A 0.40 m wide road widening is proposed along Lakeshore Road. The City is

seeking a road widening of 2.0 m. The purpose for this road widening is to enable

cycling lanes to be constructed along Lakeshore Road within the public right-of-way.

The reasoning behind the proposed 0.40 m proposed road widening compared to the

City requested 2.0 m is that all the required on-road facilities envisioned for Lakeshore

Road can be accommodated with the smaller road widening dimension, without the

need to reconfigure, and add levels to the proposed parking garage.

[39] The project includes public realm enhancements surrounding the building,

including landscaping and design features and cycling facilities within the expanded

public right-of-way, described in detail by the Applicant’s Urban Design, Landscape

Architectural and Transportation experts at this hearing.

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Issue. 1: Is the proposed development at an appropriate level of intensification

and density?

[40] According to Mr. Romano, City’s planning witness, the level of density and

intensification that is proposed exceeds the existing, planned and emerging context for

the subject site. A more moderate form of high density development that maintains the

intent of the City’s Intensification Strategy as implemented through the City’s OP is

appropriate. This generally means that the proposal of 27 storeys and 196 residential

units, in his view, is too tall and too intense, representing an overdevelopment of the

site.

[41] Mr. Romano stated that the proposal conflicts with the in-force land use planning

framework. The proposed amendments do not properly implement the planning

framework at the Provincial, Regional or Local levels.

[42] The proposal, he opined, conflicts with the emerging land use planning

framework. The applicable land use planning framework permits a significant

intensification opportunity for the site, one that is “optimal” for the site. The planned

context intensification opportunity reflects a moderate high density development. The

proposal thus conflicts with that because it is an excessively high intensity development.

[43] According to the Applicant’s planning witness Mr. Goldberg, land use planning is

not static, and the OP specifically contemplates applications to amend.

[44] The subject site is located within an area that is undergoing significant change

and growth through intensification application approvals, resulting in an evolving built

form context of higher densities and heights, reflective of its Downtown Burlington

location and Urban Growth Centre designation.

[45] Mr. Goldberg explained that while there is a broad range of existing and

approved building heights in the neighbourhood, there is an evolving trend of taller and

denser developments being proposed and approved in recent years. The area is clearly

evolving to accommodate much needed housing to meet population growth needs. The

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OLT-22-002451

immediate area contains some of the tallest buildings in the Downtown area.

[46] He testified that there are many development applications at various stages of

the planning process, in close proximity to the subject site. These developments

contribute to the evolving built form context within the Downtown area.

[47] Mr. Goldberg stressed that approvals for new buildings within this part of

Burlington takes place through OPA and ZBA applications, seeking among other things,

greater levels of height and density permissions from the City OP and ZBL permissions

at the time of the application.

[48] The Tribunal concurs with Mr. Goldberg that this part of the City has seen and is

experiencing changes. Major developments and approved applications have resulted in

taller buildings and density increases. Consistent with the evolving context around this

part of the City, the Tribunal finds that the subject property is suited for a development

at an appropriate level of intensification and density.

Issue No. 2: Does the proposal address the matters required in an appropriate

Urban Design?

CITY

[49] The City’s Urban Designer, Mr. Evershed, stated that from an urban perspective,

the proposed development does not conform to the policies and design directions of the

applicable Official Plan policies and urban design guidelines, will not fit appropriately

into its existing and planned context, fails to provide an appropriate transition in height

to neighbouring residential areas, and fails to demonstrate how the potential shadowing

impacts will not result in any unacceptable adverse impacts.

[50] In his opinion, the proposed development does not represent appropriate urban

design in addressing matters including height, density, form, massing, bulk, scale,

siting, transitions, building articulation, setbacks and spacing having regard for the site

and the character of the surrounding lands.

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Height, Density and Transitions

[51] The City Official Plan 2008 (in-force OP) and Zoning By-law No. 2020 (“ZBL

2020”) set out the building height and density expectations for the precinct and site.

Further, area-specific design guidelines have been prepared for the subject precinct,

reflecting the vision and characteristics expressed through these policy documents, and

creating guidelines to guide how height and density should land within this area of the

Downtown.

[52] Policy 5.5.7.2 b) establishes that the appropriate height in this location is a range

of two (2)-storeys and ten (10)-storeys, or up to 15-storeys if certain conditions are met.

The Zoning By-law establishes a maximum building height of ten (10)-storeys (31.5

metres) and a maximum floor area ratio of 4.5:1 within this precinct.

[53] Policy 5.5.7.1 a), states that the objectives of the Old Lakeshore Road Mixed Use

Precinct (“OLRMUP”) is to provide an area in the Downtown for high intensity, mixed

use development that is pedestrian-oriented and transit-supportive, which helps meet

Provincial Growth objectives and provides for a transition from the highest density

mixed-use area (Wellington Square Mixed Use Precinct) to the more residential areas to

the east.

[54] In Mr. Evershed’s opinion, the proposed development is too tall and represents

an overdevelopment of the site. The proposed development would represent the tallest

building in the downtown, at the eastern edge of the downtown. The proposed

development ignores the policies of the Official Plan and design directions of both the

Official Plans (the in-force OP and the new 2020 OP (new OP) (under appeal)) and the

Old Lakeshore Road Precinct Urban Design Guidelines (“OLRPUDG”) and would result

in a building that far exceeds the expressed height and density maximums and fails to

provide an appropriate transition in height to the adjacent low- and mid-rise residential

context.

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OLT-22-002451

Form, Massing, Bulk and Scale

[55] Mr. Evershed opined that, the proposed development is too tall within the context

of the existing built environment, and would result in a form, massing and scale of

development that is not in keeping with the policies of, and vision as expressed in the

in-force OP and ZBL 2020.

[56] In his opinion, the proposed development is not in conformity with the evaluation

criteria set out in OP Part III, Section 2.5.2 and does not conform with the intended

height, density, massing, scale and form of intensification set out within this area of the

Downtown.

Siting, Building Articulation, Setbacks and Spacing

[57] Mr. Evershed stated that the proposed development would result in a building

that is too tall for the site and therefore does not represent an appropriate urban design

response in addressing matters of height, density, form, massing, bulk, scale, and

transitions.

[58] In Mr. Evershed’s opinion, the proposed development has not demonstrated

conformity with Part II, Subsections 6.2 b) and c) and Part III, Subsection 5.5.12 q) of

the Official Plan as it relates to the adjacent heritage building at 2101 Old Lakeshore

Road, for example, in addressing matters of siting, building articulation and scale.

[59] He reiterated that the proposed 27-storey development does not represent an

appropriate building height.

[60] In consideration of the policy and built form context, including the immediate

block scale and surrounding area, the importance of providing a transition in the height

and scale of buildings from the center of a growth area down to a lower-scale area

cannot be understated as a fundamental urban design principle to ensure an

appropriate fit and compatible development. In Mr. Evershed’s opinion, the proposed

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OLT-22-002451

27-storey development does not provide an appropriate transition in height from the

existing, planned or emerging built form context in the downtown, which includes the

existing 22-storey building on the south side of Lakeshore to the southwest of the

subject site (2060 Lakeshore Road) and the recent OLT/OMB decisions to approve a

29-storey and 26-storey building on the north side of Lakeshore Road to the west of the

subject site (2069-2079 Lakeshore Road and 383-385 Pearl Street and 374 Martha

Street, respectively).

[61] Mr. Evershed stated that the height and massing of the proposed podium is not

appropriate given the existing and planned surrounding development context.

[62] While the proposed podium is of a low-rise character it does not adhere to the

minimum height set out in Section 2.2 b) of the Tall Building Guidelines nor does it

reflect the existing and planned surrounding context.

[63] In his opinion, the Proposed Development would not comply with Guidelines 2.2

b), 3.2 a), 3.3 a), and 3.3 b) of the Tall Building Guidelines.

[64] Further, a wider public right-of-way along Lakeshore Road is preferred from an

urban design perspective to contribute to an enhanced public realm including the

provision of active transportation, pedestrian-friendly streets, comfortable pedestrian

environments through wider sidewalks, the provision of street trees and active at-grade

uses with enough space for spill-out uses.

[65] Mr. Evershed’s view is that an appropriate public right-of-way width also helps to

establish an appropriate streetwall – podium location, height and massing – in

accordance with Guidelines 2.1 and 2.2 of the Tall Building Guidelines, for example.

[66] With respect to shadowing, Mr. Evershed opined that the Applicant’s sun shadow

study does not demonstrate that the proposed development will not result in adverse

impacts, nor does it provide sufficient information to demonstrate how the proposed

development seeks to adequately limit shadowing on the adjacent public realm

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OLT-22-002451

(boulevards, sidewalks and streets) or nearby residential properties and open spaces

with respect to the excess height and mass being proposed. If there are shadow

impacts, they can be mitigated by reducing the building height for instance.

[67] He concluded that the proposed development does not represent good urban

design and would result in an overdevelopment of the subject site, located at the edge

of the downtown in close proximity to lower-scale residential housing, with excessive

height and mass; fails to provide appropriate transitions in height; and does not fit

appropriately into its existing and planned context.

[68] Mr. Evershed emphasized that the Official Plan provides for differing precincts

that contemplate differing scales of redevelopment and intensification. The Old

Lakeshore Road Precinct (“OLRP”), in which the subject site is located, does not

provide for the tallest or highest densities in the Downtown. Rather, it functions as a

transitional designation between the taller and higher permitted densities in the

Wellington Square Mixed Use Precinct and the lower- scale residential areas to the east

of the site.

Streetscaping

[69]

The City’s landscape architecture witness, Ms. Shareqi opined that appropriate

streetscaping has not yet been sufficiently demonstrated for the following reasons. A 2

m land conveyance along Lakeshore Road is required by the City of Burlington’s

Transportation department and is not represented on the plans. If the land conveyance

is not provided, then the streetscape design would have to be revised to meet the City’s

guidelines for the City of Burlington’s Downtown. The streetscape proposed along

Lakeshore Road and Old Lakeshore Road do not propose a running bond pattern as

per the Recommendations for Lakeshore Road outlined in the Downtown Streetscape

Guidelines. Additionally, the streetscapes proposed along Old Lakeshore Road fail to

include the 4 zones identified in the Downtown Streetscape Guidelines Section 3.1:

Streetscape Anatomy: The Marketing Zone, The Clear Path Zone, The Furnishing Zone,

The Edge Zone. (Applicant’s witnesses spent a significant amount of time explaining

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OLT-22-002451

that the four zones are illustrated in cross-section which the Tribunal acknowledges).

[70]

The proposed development would remove city trees in the right-of-way. In Ms.

Shareqi’s opinion, this removal is not supported by the materials that have been

submitted with the application. She stated that an Arborist Report and Tree Preservation

Plan, should be provided so that the City can review in its consideration of whether the

City’s trees in the City’s right-of-way should be removed. (The Applicant countered that

this, and other related tree planting, tree growth, tree health or landscaping matters

could be considered and provided at the detailed Site Plan approval stage which the

Tribunal agrees with).

APPLICANT

[71] Mr. Kasprzak and Mr. Hannay testified as a panel on urban design. Their

opinions are encapsulated in the following. The proposed amendments to the Official

Plan and Burlington ZBL 2020, are appropriate and desirable in urban design terms and

should be approved. The proposed development at the easterly entrance to the

downtown, is compatible with the existing and planned built form context and would

enhance the area by intensifying an underutilized site with an appropriately scaled high-

rise, mixed-use development that will contribute to the ongoing regeneration and

enhanced vibrancy of Burlington’s Downtown Core as a complete community.

[72] From an urban design perspective, it is Mr. Kasprzak’s opinion that the proposed

development represents an appropriate response to the location of the subject site at a

prominent location which demarcates an important gateway and view terminus within

the City’s Downtown and Old Lakeshore Road Mixed Use Precinct (“OLRMUP”). The

design consists of two distinct building elements: a one (1)-storey podium designed to

have an expression of a two (2)-storey element and a slender tower totalling 27 storeys.

The proposed building height will fit harmoniously within the range of existing and

approved building heights in the surrounding context.

[73] In his opinion, the built form impacts of the proposed building are acceptable,

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given its location within an area identified for intensification and the surrounding context

of existing and approved tall buildings. In particular, the shadow analysis undertaken by

R. Bouwmeester and Associates (Mr. Bouwmeester testified at the hearing)

demonstrates that the incremental shadows created by the proposed 27-storey tower

will satisfy the applicable policy tests and recommendations.

[74] The proposed built form, setbacks and height of development appropriately

conform to the policies of the Official Plan and address the relevant Council-approved

guidelines with respect to tall building development in an area characterized by tall

buildings. The proposed form, setbacks and height of development are appropriate and

compatible from an urban design perspective with the physical (both existing and

planned) context of the surrounding area. At grade, the proposed development will

animate the public realm with active grade related uses. Parking, loading and other

service functions of the development will be located away from the public realm to

minimize any potential visual impact.

[75] The proposal conforms with the urban design policies of the Mixed Use Activity

Areas (“MUAA”) and Mixed Use Centre (“MUC”) designations that apply to the subject

site. The proposal requires amendments to the Official Plan policy 5.5.7.2(d) in order to

permit the proposed height of 27 storeys. In Mr. Kasprzak’s opinion, the requested

amendment is appropriate and desirable and would permit a contextually appropriate

building design that responds both to the existing and planned built form context and the

overarching policy directions promoting intensification on the subject site. Furthermore,

the proposed height is within the range of existing and approved heights in the area,

many of which exceed the current policy framework.

[76] In his opinion the proposed development represents appropriate urban design

with respect to height, form, massing, scale, siting, transition, building articulation,

setbacks and spacing. The proposed height has to be considered with respect to its

context, potential impacts and appropriate transition. In that regard, the proposed height

of 27 storeys is within the range of the existing and emerging pattern of development in

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the City’s Downtown which includes building approvals of up to 29 storeys. The

proposed building is also situated over 127 m from lower scaled residential areas

ensuring it meets a 45 degree angular plane which is often applied to establish an

appropriate transition between different scales of development. Based on the shadow

impact analysis there are no adverse impacts. Furthermore, Mr. Kasprzak opined that

the subject site is situated in a prominent location which demarcates a gateway

condition for the Downtown and a view terminus for Lakeshore Road, one of the City’s

principal east-west corridors.

[77] Mr. Kasprzak stated that the proposed siting of the tower and podium is

appropriate with respect to the building’s interface with the public realm at grade and its

relationship to the lower scaled buildings on the south side of Lakeshore Road on lower

levels and the building’s relationship with potential redevelopment to the west. In that

regard, the proposed tower maintains a setback of 12.5 m from the west property line, in

accordance with the City’s Tall Building Design Guidelines.

[78] In terms of building articulation, the proposal consists of two distinct elements: a

podium and a tower. The podium provides for an appropriate framing of the streets and

is reflective of the scale of some of the existing low scale buildings situated in the

OLRP. The tower is representative of a slender point tower design with a floorplate size

of 750 m²in accordance with the City’s Tall Building Design Guidelines. The design of

both, the podium and tower are influenced by the configuration of the site and

accentuate its prominence with a high quality architecture. Furthermore, the proposed

podium height reflects the recommendations of the OLRPUDG.

[79] The proposal provides for appropriate streetscapes with an appropriately scaled

podium element and adequate setbacks. The previously proposed lay-by parking has

been removed along Old Lakeshore Road.

[80] Mr. Kasprzak opined that the development proposal represents good urban

design and will make a positive contribution to the area in general. The development

proposal provides an excellent opportunity to achieve residential intensification on an

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underutilized site in close proximity to transit and a higher intensity mix of built forms,

and in a manner that reinforces the existing and planned built context in the area. He

recommended the approval of the proposed OPA and ZBA.

[81] Mr. Hannay said that the revised design of the proposed development fully and

appropriately meets both the specifics of the Tall Building Guidelines as well as the

general intent of the Downtown Urban Design Guidelines. The revised design of the

proposed development also appropriately addresses those recommendations of the

OLRPUDG that continue to be relevant to the design of new developments in Areas ‘A’

and ‘B’ under the OLRPUDG.

[82] It is his opinion that density is not of itself an urban design matter and only

relates to urban design in terms of building typologies and site design. Further, his view

is that the design of the proposed development responds appropriately to the design

guidelines and does not produce potentially unacceptable impacts relating to built form

such as shadow, while the density of the proposed development is appropriate.

[83] In reference to the relevant urban design related policies of the Official Plan, the

planned and built context of the subject site has continued to evolve and the pattern of

building heights that has been approved no longer reflects the pattern of building

heights envisioned in the City of Burlington Downtown Urban Design Guidelines. The

height and massing of the proposed development including the proposed height of its

podium is appropriate to its location and context.

[84] The design of the proposed podium at one storey with a two storey expression

with vertical architectural “fins”, will provide a sense of pedestrian scale along both the

Lakeshore Road and Old Lakeshore streetscapes through its height, massing

articulation, landscaping and streetscaping at grade, and the proposed uses at grade.

[85] In Mr. Hannay’s opinion the height and massing of the revised podium design is

appropriate to the existing and planned development context.

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[86] Within the area of the subject site and along Lakeshore Road from Pearl Street

east, there is no common podium height for tall buildings. From Pearl Street east along

Lakeshore Road the range of built and approved podium heights include two (2) storey,

three (3) storey, four (4) storey, and six (6) storey podiums with no over-riding

consistent pattern of podium heights. This is a condition that will provide an element of

visual variety along the streetscape. Older apartment buildings to the east of the subject

site, on or close to Lakeshore Road, do not provide podiums.

[87] Section 2.1 Podium Location of the Tall Building Guidelines recommends a

distance of 6.0 m from the face of the podium at grade to the curb of a street. The

distance from the face of the podium on the ground floor to the curb on Lakeshore Road

is now 6.8 m and 8.0 m to 9.3 m on Old Lakeshore Road.

[88] Mr. Hannay stated that from the perspective of urban design, the proposed

redevelopment represents a well-designed redevelopment proposal for the subject site

that will fit appropriately into its existing and planned context.

[89] The Tribunal is persuaded by the opinion evidence of Messrs. Kasprzak, Hannay

and Bouwmeester (who was the only expert providing shadow studies that

demonstrated minimal shadow impacts on the opposite side of Lakeshore Road with the

proposed development’s Sun Access Factor (“SAF”) of 0.45 as compared to the

required SAF 0.5). The urban design elements of the building meet the policy

requirements and City approved guidelines. The building is well-designed to be

specifically and appropriately sited on this triangular shaped site. As one drives from

east to west on Lakeshore Road, this future architectural landmark will be a standout

view terminus at this Downtown gateway. Although not defined as a gateway in the OP,

in reality, this confluence triangular patch of the Old Lakeshore Road and the Lakeshore

Road forks right at the “nose of the subject property” leading to the downtown.

[90] The redevelopment incorporates the tall building guidelines requirements on built

form and typology. The two (2)-storey podium expression through architectural “fins”,

from the pedestrian perspective, will not be at odds with the existing and approved

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context where there are buildings without podiums, and building podiums in the vicinity

ranging from two (2) to six (6) storeys high. The tower portion is of a height that is

generally prevalent in the neighbourhood.

[91] The redevelopment will be in line with the provincial goal of creating healthy and

complete communities. Present and future residents will benefit from the increased

housing supply, the landscaping, and the creation of open space amenities that will

revitalize this underutilized subject property. The Tribunal acknowledges the

requirement of an appropriate width for a right of way for a comfortable and safe

pathway in the public realm.

[92] New residents in this proposed development will benefit from the varied types of

apartments. The Province’s and the City’s objectives of providing more affordable

housing will be realized. The appropriately designed proposal is a sustainable

development maximizing efficient use of municipal infrastructure and services.

[93] The Tribunal finds that this intensification of the subject lands, through the

provision of a total of 196 units of well-designed residential apartments and ground floor

retail is beneficial to this area.

Issue No. 3: Does the OPA and ZBA meet the requirements of the policy and

legislative framework?

City

[94] Mr. Romano testified and provided evidence on matters of Provincial interest

including Provincial, Regional and City Policies and the Zoning By-law.

[95] He opined that the proposed amendments do not have regard for the following

matters of Provincial interest identified in s. 2 of the Planning Act: 2(h); 2(n); 2(p); and

2(r)(i) (ii) (iii).

[96] The proposed amendments, he added, will result in a site development that is out

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of keeping with the existing, planned and emerging context. These currently afford a

significant, yet much more moderate, form of development intensity for the site than is

currently proposed. The proposal represents a significant departure, representing one of

the tallest, most intense development, for example, within an existing, planned and

emerging context where shorter, less intense development is called for.

[97] Mr. Romano stated that the site is subject to the Settlement Areas policies of the

Provincial Policy Statement 2020 (“PPS”). Settlement Areas are the focus for growth

and development within land use patterns which are based on a range of uses and

opportunities for intensification and redevelopment. The applicable policy sections of 1.0

Building Strong Healthy Communities (1.1.1, 1.1.2, 1.1.3, 1.3, 1.4, 1.6) are guided by

the Implementation and Interpretation policies of 4.0 and the Definitions of 6.0.

[98] Mr. Romano stressed that the PPS and the existing in-force land use planning

framework permit a context suitable intensification and redevelopment opportunity for

the site.

[99] He said that the PPS and the new OP permit a context suitable intensification

and redevelopment opportunity for the site. This planned and emerging context is

consistent with the PPS. The Tribunal notes that the new OP is under appeal and is

informative and not determinative with respect to the applications.

[100] Mr. Romano’s view is that the proposed OPA and ZBA would elevate the level of

intensification and redevelopment for the site in a manner that remains consistent with

the PPS but is not context suitable. The appropriate implementation of the PPS, read as

a whole, would achieve a significant development on the site which is more moderate

than proposed. The proposed amendments do not have the effect of bringing the site

into a position of consistency with the PPS, he opined.

[101] The 2020 Growth Plan (“Growth Plan”) is in-force and is part of the planned

context. It provides for a high level of policy which is to be implemented at the local level

based on context suitable considerations. Mr. Romano stated that the Growth Plan is to

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be read as a whole and the municipal land use planning framework is to be read such

that the policies are implemented appropriately.

[102] The site is located within the Growth Plan’s Delineated Built-Up Area component

of the Settlement Area and within the Urban Growth Centre. The policies of the Growth

Plan are intended to achieve complete communities by facilitating contextually

appropriate development that is compact, transit supportive and makes efficient use of

existing infrastructure. The policy direction is to optimize the use of existing urban land

supply in a context suitable manner. Mr. Romano’s opinion is that the policies are clear

that they do not confer any new land use designations and rely upon the local land use

planning framework for implementation.

[103] Mr. Romano stated that the site is located within an area that is described in the

Managing Growth section 2.2.1, except that it is not in a higher order transit location. It

can contribute appropriately to the Section 2.2.1-related matters under the existing,

planned and emerging land use planning framework utilizing existing significant

intensification permissions. The proposal, he said, does not establish conformity with

these policies.

[104] Section 2.2.3 – Urban Growth Centres states that these areas will be planned as

focal areas for investment, accommodate and support the transit network at the regional

scale, serve as high density major employment centres and accommodate significant

population and employment growth. Section 2.2.3 provides for minimum density targets

of 200 residents and jobs combined per hectare for Downtown Burlington.

[105] The aforementioned density target is described within the in-force OP. According

to Mr. Romano, the City is meeting its minimum density target (City report September

2020 Taking a Closer Look at the Downtown: Recommended Modifications to the

adopted Official Plan).

[106] Section 5 of the in force OP deals with the Implementation and Interpretation of

the Growth Plan. Section 5.1 states that all planning-related decisions will conform with

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the Growth Plan.

[107] Section 5.2.5.6 interrelates the achievement of the minimum targets with a

municipality’s development and implementation of urban design and site design Official

Plan policies and other supporting documents that direct the development of a high

quality public realm and compact built form.

[108] It is Mr. Romano’s opinion that the achievement of the Growth Plan policy

direction in a manner that conforms with the Growth Plan is a land use planning

condition which currently exists under the in-force land use planning framework. The in-

force land use planning framework conforms with the Growth Plan. It contains policies,

including density targets, which conform with the Growth Plan.

[109] Mr. Romano’s view is that the proposed OPA and ZBA would elevate the level of

intensification and redevelopment for the site in a manner that is in conformity with the

Growth Plan but is not context suitable. The appropriate implementation of the Growth

Plan, read as a whole, would achieve a significant development on the site which is

more moderate than proposed.

[110] The in force OP and ZBL 2020 can facilitate a maximum ten (10) storey mixed

use development with a floor area ratio up to 4.5:1. This ‘as of right’ permission affords

a significant intensification opportunity for the site. A site development in this regard will

contribute to the City’s achievement of the Growth Plan conformity targets under the

Growth Plan, as described within the in force OP.

[111] Mr. Romano stressed that an increase beyond the ‘as of right’ zoning permission

and beyond Official Plan designation development standards is not required for the site,

in order for the City to achieve its Growth Plan conformity targets.

[112] He stated that the Regional Municipality of Halton Official Plan Amendment 48

(“ROPA 48”) was approved by the Minister on November 10, 2021. It is consistent with

the PPS and conforms with the Growth Plan. It is in force and forms the land use

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planning framework planned context.

[113] ROPA 48 is informative, instructive but not determinative because it was adopted

and approved after the applications were deemed complete by the City.

[114] ROPA 48 provides an updated regional structure to conform with the Growth

Plan. ROPA 48 identifies on Maps 1h and 6b that the Burlington Major Transit Station

Areas (“MTSA”) is centred around the Burlington GO Station, a Priority Transit Corridor.

The Burlington MTSA is at the top of the Regional Urban Structure hierarchy.

[115] While ROPA 48 moves the Burlington MTSA to the Burlington GO Station, it also

contains transitional policies for applications made prior to the Minister’s decision for

lands originally within an Urban Growth Centre (“UGC”) to continue to be subject to

UGC policies. ROPA 48 maintains the same UGC minimum density targets as those

contained within the in-force OP and the Growth Plan.

[116] ROPA 48 (and the Halton Region Official Plan (“ROP”) as a whole) provides for a

high level policy framework, at the Regional level, which is to be implemented at the

local level through such means as local Official Plans. The in force OP is the local

Official Plan that implements the ROP.

[117] In Mr. Romano’s opinion, the proper implementation of ROPA 48 achieves a

significant development on the site which is more moderate than the Proposed

Development.

[118] The ROP, June 2018 Consolidation, includes all amendments from the initial

adoption in March 1994. The ROP planning horizon is to 2031.

[119] The site is located within the Settlement Area which includes the Urban Area

(Policies 50.2 and 72). The Urban Area and Intensification Areas (Policies 77, 78 to 81)

sections provide direction for complete community diversity and relies upon the local

municipality for context suitable implementation. This includes implementation at the

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Official Plan and Zoning By-law framework.

New Official Plan (City Official Plan 2020)

[120] Mr. Romano stated that considerable weight should be given to the City’s new

OP. Nevertheless, the Tribunal notes that the new OP (currently under appeal) is

informative but not determinative of the applications.

[121] Mr. Romano opined that the proposal is in conflict with the new OP which clearly

identifies a more moderate, yet significant, form of intensification on the site. Any

approval of an OPA for the site should better align with the new OP framework and

achieve a more moderate development for the site.

[122] The new OP, Chapter 6, Infrastructure, Transportation and Utilities, recognizes

the Downtown and Uptown Urban Centres as priority areas for improvements. The

Sections within this Chapter provide the policy basis and direction for right-of-way

widths, active transportation requirements and transportation demand management

integration and efficiencies. The subject site is located in an area where the Lakeshore

Road right-of-way is planned to be widened. The City proposes to take less of a road

widening than the planned right-of-way width. The applications propose to permit an

even lesser road widening to be provided (0.4 m, as shown in the April 2022 revised

plans). In Mr. Romano’s opinion, the proposal does not implement the new OP

appropriately and the proposed OPA does not represent good planning.

[123] Chapter 8 (Section 8.1 et al) provides the new OP objectives and policies relating

to the Urban Area, Mixed Use Intensification Areas, and Urban Centres. It is within this

Chapter that the site’s Downtown Urban Centre and OLRP underlying land use

designation policies are found.

[124] Section 8.1.1, Urban Centres, elaborates upon the policy description. Section

8.1.1(3.1) General Objectives, for example, states:

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b) To establish minimum density targets for the Urban Growth Centre contained

within the Downtown in terms of residents and jobs, in accordance with the

Provincial Growth Plan;

c) To establish a precinct system that recognizes areas with distinct character

and sets policies for differences in land uses, height and built form, informed by

historical development patterns and the planned function of each precinct.

d) To ensure development incorporates effective transitions with adjacent

development and surrounding areas.

h) Development will respect and be compatible with the existing built form

character of adjacent development and provide appropriate built form transition.

i) Development will support the achievement of the vision and function of the

precinct within which it is located.

[125] Mr. Romano explained that the OLRP policies contained in Section 8.1.1(3.6)

further describes the underlying land use designation. It states:

The Old Lakeshore Road Precinct will provide for mixed-use mid-rise

buildings consisting primarily of residential uses which are pedestrian-

oriented and transit supportive while also achieving a high standard of

design. Modest tall buildings which transition downward from the adjacent

Lakeshore Precinct towards the waterfront may be accommodated where

such development achieves strategic public and city building objectives,

including the provision of public waterfront access and the creation of

new uninterrupted view corridors to Lake Ontario, among others.

[126] The accompanying policies provide for a mix of uses which may be permitted, a

minimum required building height of two (2) storeys and a maximum height of ten (10)

storeys and 31.5 m within the East Sector of the OLRP where the site is located. The

maximum permitted building height may be permitted up to a maximum of 12 storeys

and 37.0 m, subject to the provision of the following to the satisfaction of the City:

a. Old Lakeshore Road is retained in the East Sector and realigned to form an

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intersection at Martha Street and Lakeshore Road;

b. conservation or re-location of significant cultural heritage resources within the

precinct;

c. submission of an angular plane study, identifying visual, sun shadowing and

wind impacts, and demonstrating how any adverse impacts can be mitigated to

acceptable levels; and

d. community benefits.

[127] The proposal is to permit a building height that is essentially triple the new OP

permission. In Mr. Romano’s opinion, the proposal is not a modest tall building, nor

does it transition downward from the adjacent Lakeshore Precinct towards the

waterfront, nor are the other substantive provisions being implemented.

[128] With respect to community benefits, he comments that it would be appropriate for

the Tribunal to withhold any approval Order pending receipt of confirmation from the

City Solicitor that a satisfactory execution and registration of a Section 37 agreement

has been obtained.

City Official Plan 2008 (in-force OP/OP)

[129] In Mr. Romano’s opinion, the proposed amendments are not in conformity with

the in-force OP and do not maintain the intent of the policies of the OP.

[130] The OP was initially adopted by City Council in 1994, approved by Halton Region

in 1997 and updated through to 2008 when it was approved by the OMB in 2008.

[131] The in force OP contains policies which incorporate the 2006 Growth Plan,

including the associated densities for the Downtown Urban Growth Centre. Section 5.5

– Downtown Mixed Use Centre, states that the minimum density target is established at

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200 residents and jobs per ha. It also states that higher densities and intensities will be

encouraged within certain precincts of the Downtown Mixed Use Centre, informing the

reader that the intent is not homogeneity.

[132] The site is located within the City’s settlement pattern Urban Planning Area

Boundary. The site is located within the MUAA which is further refined into land use

designations (the site is within the Downtown Mixed Use Centre) and precincts (the

subject site is within the Old Lakeshore Road Mixed Use Precinct (“OLRMUP”)).

[133] The OLRMUP objectives state the following:

To provide an area in the Downtown for high intensity, mixed use

development that is pedestrian- oriented and transit-supportive, which

helps meet Provincial Growth objectives and provides for a transition

from the highest density mixed-use area (Wellington Square Mixed Use

Precinct) to the more residential areas to the east.

[134] Mr. Romano stated that the Wellington Square Mixed Use precinct permits the

maximum height of buildings shall be eight storeys and up to 29 m with terracing

required above the second floor. Taller buildings up to a maximum of fourteen storeys

may be permitted where they provide compatibility with surrounding land uses and a

sense of pedestrian scale by the use of terracing above the second floor, and subject to

the community benefits provisions of Part VI, Subsection 2.3 of this Plan.

[135] The OLRMUP, unlike other precincts such as Wellington Square and Downtown

Core, has specific policies which refer to matters of transition, a gradation of intensity as

well as specific built form related parameters.

[136] The subject site is located within the East Sector of the OLRMUP. Section

5.5.7.2.b permits a building height of minimum two (2) storeys and maximum six (6)

storeys and 19.5 m. Taller buildings up to a maximum of eight (8) storeys and 29 m may

be permitted, subject to specific criteria. Upon the site, there is a site specific policy

which states, the maximum height of buildings shall be ten (10) storeys and 31.5 m.

Taller buildings may be permitted, up to a maximum height of 12 storeys and 37 m,

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where they provide compatibility with surrounding land uses and a sense of pedestrian

scale by use of building design incorporating a ground level, street-oriented podium,

and subject to the community benefits provisions of Part VI, Subsection 2.3 of this Plan

and details to the satisfaction of City Council.

[137] Mr. Romano stated that the proposal is for a development intensity that is not

intended, nor permitted, to be located on the site. The proposal conflicts with the

community plan and growth strategy. The proposal does not conform with, nor maintain

the intent of, the Official Plan as it relates to Part I – 3.0 of the Official Plan.

[138] Section 3.2 contains Transportation objectives and policies to achieve the

optimal benefit from the transportation system, including major public right-of-way

widths.

[139] Section 3.3 more specifically includes objectives such as protecting adequate

public road rights-of-way to meet future needs and to maximize the use of existing

roads. In this instance, the planned Lakeshore Road right-of-way width is 30.0 m

(Section 3.3.2.c Table 2 Road Allowance Widths). The right-of-way requirements shall

take into consideration the needs of vehicular traffic, pedestrians, cyclists, transit,

emergency response and urban design considerations including streetscape design and

the provision of public vistas.

[140] Mr. Romano stated that based on the existing Lakeshore Road right-of-way width

of 20.0 m, a 5.0 m road widening on either side would achieve the planned 30.0 m right-

of-way width. The City has accepted a smaller road widening of 2.0 m for other nearby

development applications along Lakeshore Road. The City seeks a 2.0 m road widening

from the subject property.

[141] The Proposed Development does not provide the 2.0 m road widening.

[142] In Mr. Romano’s opinion, the Proposed Development does not conform with, and

does not meet the intent of, the Transportation Official Plan sections.

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[143] Sections 2.2 and 2.5 of the OP refer to encouraging residential development and

residential intensification of underutilized land within the Urban Planning Area in

accordance with Provincial growth management objectives and recognizing that the

amount and form of intensification must be balanced with other planning objectives.

This section continues the Official Plan direction for development that is context

suitable.

[144] Mr. Romano explained the policies in section 5 of the OP as follow:

 5.4.2.f) The zoning of individual sites may not allow for the full range of

permitted uses or the full extent of development intensity at every location

based on site specific factors that may include, but are not limited to, traffic,

land use compatibility, market impact, natural hazards and features, and

environmental factors such as soil contamination.

 5.4.2.h) The design and development of Mixed Use Centres shall encourage

the use of public transit, pedestrian and bicycle travel as an alternative to the

car and shall maximize personal safety.

 5.5.2.g) To increase the resident population and provide a variety of housing

types mainly at medium and high densities that will strengthen the live/work

relationship, ensure the Downtown is used after business hours, and create a

local market for convenience and service goods.

 5.5.3.b) Within the Urban Growth Centre Boundary as delineated on

Schedule B, Comprehensive Land Use Plan – Urban Planning Area, and

Schedule E, Downtown Mixed Use Centre, the target is established of a

minimum gross density of 200 residents and jobs per hectare, in accordance

with the “Places to Grow” Growth Plan for the Greater Golden Horseshoe,

2006.

 The OLRMUP policies contained in Section 5.5.7 describe a planning

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framework which is consistent with its southeast periphery location within the

Downtown. The general policy thrust provides for a transition from the highest

density mixed use area to the more residential areas to the east. Given the

location of the OLRMUP next to Lake Ontario and its shoreline hazard

character, the precinct contains policies that ensure these lands are at a

lower intensity of development. This OLRMUP planning framework

strengthens and reinforces this policy intent as it is articulated throughout the

OP from the general to the specific.

[145] In Mr. Romano’s opinion, the Proposed Development represents an over-

intensification of the site. The Proposed Development does not conform to, nor

implement the intent of, the existing, planned and emerging policy context. It also

conflicts with the existing, planned and emerging physical context. The Proposed

Development represents an overdevelopment. He opined that the appeals should be

dismissed, the proposed amendments should not be authorized as they do not

represent good planning.

Applicant

PPS

[146] Mr. Goldberg for the Applicant testified that the PPS and the Growth Plan direct

municipalities to implement within their planning instruments the principles, goals and

objectives expressed in these two important Provincial documents. For example,

Section 4.6 of the PPS indicates that “the official plan is the most important vehicle for

implementation of the PPS.” Section 4.6 of the PPS also indicates that the "policies of

this Provincial Policy Statement continue to apply after adoption and approval of an

official plan." This is very important since the most current direction of growth expressed

in the PPS and the Growth Plan must be considered and implemented, notwithstanding

there being an approved official plan in effect. Therefore, this PPS policy directs that the

PPS and the Growth Plan are considered in a planning evaluation of a planning

application, independent of an approved municipal official plan.

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[147] Since official plans and zoning by-laws are not static and evolve by way of

amendment, each municipality must ensure that the official plan and zoning, and the

related amendments, are up to date, and “consistent with” the PPS, and "conform to”

the Growth Plan.

[148] The PPS provides a policy framework that promotes and encourages

intensification in locations well served by municipal infrastructure i.e. the following PPS

policies:

 Part V, Section 1.1.1 (a), (c), and (e) relating to healthy, livable and integrated

communities;

 Part V, Section 1.1.2, relating to appropriate range and mix of land uses

within settlement areas.

 Part V, Section 1.1.3.3, relating to planning authorities identifying appropriate

locations and promoting opportunities for intensification and redevelopment.

 Part V, Section 1.1.3.4, relating to appropriate development standards to

facilitate intensification.

 Part V, Section 1.1.3.5 indicating that planning authorities shall establish and

implement minimum targets for intensification and redevelopment within built-

up areas.

 Part V, Section 1.4.1(a) relating to providing an appropriate range and mix of

housing options and densities.

[149] In Mr. Goldberg’s opinion, the proposed development, as revised since the

subject applications were filed, is consistent with these policy directions. The proposed

development is located in Downtown Burlington, which has been identified as an

appropriate location for high density, mixed use residential and commercial

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intensification and growth.

[150] He testified that the development of the subject site with a tall, mixed use building

and a street related retail component will be an efficient use of land, with a denser urban

form that will cost-effectively and more optimally utilize existing infrastructure and

community facilities. The subject site is located in close walking proximity to a major

transit facility in Downtown Burlington, where higher levels of height and densities are

anticipated and expected by Provincial policy.

[151] The PPS housing policies of Section 1.4 identify the need for municipalities to

provide for an appropriate range of housing types and densities, directing new

development towards appropriate locations where the levels of infrastructure and public

service are available. The PPS also promotes densities for new housing that efficiently

use land, resources, infrastructure, and public service facilities, and supports the use of

alternative transportation modes, such as walking, bicycling, and public transit.

[152] The proposed development will increase the residential population in this part of

the Downtown Burlington Urban Growth Centre by population equivalent of 196

residential units. This additional concentration of people contributes to maintaining and

enhancing the vitality and vibrancy of Downtown Burlington as a potential place to work,

supporting the shops and services in the area, and the 24/7 pedestrian activity and

presence on the street. The commercial space will also create some opportunity for

employment uses within this part of Downtown Burlington, as well as enhancing the

animation of the sidewalk frontages and the public realm. All of this contributes to the

vitality and long-term success of this Downtown area.

[153] It is Mr. Goldberg’s opinion that the existing City OP permissions are outdated,

would lead to an under-utilization of the subject site, and are not consistent with the

current PPS. Conversely, the revised plans for the subject site supports, advances, and

is consistent with, the PPS policy direction to optimize the use of the land, resources,

and the existing and planned infrastructure. In his opinion, the proposed 27-storey

building, at a Floor Space Index (“FSI”) of 10.4 is, from a PPS perspective, appropriate

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and suitable for this site and its surrounding existing and planned context.

Growth Plan

[154] The Growth Plan generally aims to, among other things, revitalize downtowns to

become vibrant and convenient centers; create complete communities that offer more

options for living, working, shopping, and playing; provide greater choice in housing

types to meet the needs of people at all stages of life; curb urban sprawl; protect

farmland and green spaces; and reduce traffic gridlock by improving access to a greater

range of transportation choices. The Growth Plan encourages compact, vibrant,

complete communities, optimizing the use of land and infrastructure in order to support

growth in a compact, efficient form.

[155] The Growth Plan promotes compact urban form through the intensification of

existing urban areas and provides for an “intensification first” approach to development,

focusing on making better use of existing infrastructure. The intent is to better use land

and infrastructure to avoid the unnecessary urban sprawl.

[156] The subject site is located within the area identified in the Growth Plan as “built-

up area”, which encompasses the whole of Downtown Burlington and beyond.

[157] By definition according to the Growth Plan, the subject site is located within a

Strategic Growth Area, an UGC and is within the defined distance of a MTSA to the

John Street Bus Terminal, all of which are areas where the Growth Plan policies direct

intensification and the most intensive forms of growth.

[158] The use of the subject site for a mixed use development, at the density proposed

will assist in meeting the minimum population growth targets, if not exceed them, for this

UGC. The policies in the Growth Plan regarding intensification and density targets are

minimum standards and municipalities are encouraged to exceed these targets, where

appropriate. The subject site is well suited for a high-density mixed use building that

contributes to meeting or exceeding the minimum intensification and density targets.

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[159] The subject site is very accessible to the existing John Street Bus Terminal which

functions as the confluence for many inner-municipal and intra-municipal transit routes

and transit providers. The proposal is intended to better utilize and optimize the subject

site with respect to public transit access.

[160] Although Halton Region, by virtue of ROPA 48 (not determinative), no longer

considers the John Street Bus Terminal to be a major bus depot (which is not a

provincially defined term), it was identified as a provincially designated Mobility Hub and

an MTSA at the time the Applicant filed the subject applications. It also continues to be

the central bus terminal for Downtown Burlington, providing bus connections to higher

order transit at Aldershot GO Station, Appleby GO Station, and Burlington GO Station,

as well as a number of other destinations within and beyond Burlington.

[161] Mr. Goldberg opined that maximizing intensification in proximity of the John

Street Bus Terminal will increase transit ridership near a station that is an important bus

terminal in Downtown Burlington. It assists in supporting the level of transit that currently

exists and assists in facilitating increases in ridership to strengthen the Terminal’s role

and function, as a key transit facility in the City and Region-wide public transit network.

[162] In addition, by introducing a variety of housing units, the housing policies relating

to providing a mix of housing options and densities are satisfied and advanced. This will

contribute to achieving a more complete community, which will complement the existing

and approved mixed use buildings in the area and will contribute to the evolution and

maturation of this part of Downtown Burlington.

[163] It is Mr. Goldberg’s opinion that the subject applications are consistent with the

PPS and in conformity with the policies of the Growth Plan.

Halton Region Official Plan (“ROP”)

[164] Mr. Goldberg explained that the Halton Region Official Plan, 1995 (the “ROP”),

provides a planning policy framework to manage and guide growth, development, and

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physical change within Halton Region, as well as the social, economic, and natural

environment of Halton Region.

[165] ROPA 48 included two important amendments to the Regional OP policy regime

that apply to the subject site. First, ROPA 48 amended/moved the boundaries of the

Burlington Urban Growth Centre from Downtown Burlington to the area surrounding the

Burlington GO station. Second, the Major Transit Station Area designation of the John

Street Bus Terminal was removed.

[166] With respect to the Urban Growth Centre boundary modification, ROPA 48,

includes a Ministerial modification which added to the Regional Council adopted version

of ROPA 48, a transition provision in Section 80.3, as follows:

Sections 80 to 80.2 continue to apply to applications for official plan

amendments, zoning by-law amendments and draft plans of subdivision

or condominium approvals made prior to the approval by the Minister of

Municipal Affairs and Housing of Amendment 48 to this Plan if the lands

that are the subject of the application were within an Urban Growth

Centre prior to the Minister’s approval of Amendment 48.

[167] Pursuant to Section 80.3 of ROPA 48, the subject applications are transitioned

and remain a part of an UGC.

[168] Although ROPA 48 does not contain a transition provision regarding the

designation of the John Street Bus Terminal under ROPA 38 as a MTSA, that transit

facility continues to serve the important transit function as a central transit hub and

confluence of many City-wide and regional-wide transit routes, served by a variety of

transit providers. As such, the subject site remains subject to, and serviced by,

enhanced public transit within close walking proximity to it.

Applicable Planning Policies in ROP

[169] The ROP defines Intensification Areas as “lands identified by the Region or its

Local Municipalities within the Urban Area that are to be the focus for accommodating

intensification” and include UGCs, MTSAs, Intensification Corridors, and Mixed Use

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Nodes. The subject site is located within the Urban Area and is designated as an UGC

and meets the Growth Plan definition of being within a MTSA.

[170] In Mr. Goldberg’s opinion, the proposed development conforms with the ROP by

intensifying an underutilized site in an Urban Area, Built Up Area, and Urban Growth

Centre that is targeted for significant population and employment growth. (Policy 81.1

and 81.3(1)).

[171] The proposed development will contribute to achieving the minimum growth

targets, set out by the Region, by providing new housing units in a compact and high-

density urban form.

[172] The proposed 27-storey building is an appropriate form of development in an

Intensification Area, as it is well designed and responds appropriately to the existing,

approved and planned high density built form context. This, in Mr. Goldberg’s opinion,

achieves an appropriate and compatible built form within the Intensification Areas. The

site and building have been carefully designed and massed to respond to its current and

emerging mixed height and mixed density built environment and context.

[173] The proposed development will conform with the policy directive in the ROP

regarding housing supply. The proposed intensification of the subject site will provide

many new residential units in the form of one, two and three-bedroom units, contributing

to the achievement of Halton’s housing supply targets, as well as improving the range of

housing choice for the community.

City of Burlington Official Plan, 2008

[174] The 2008 City OP (in-force OP) was in force at the time the subject applications

were filed in December of 2019.

[175] The 2020 City OP is under appeal and not currently in-force.

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[176] Mr. Goldberg explained that the sections of the in force OP that are applicable to

the subject applications are Part I - Policy Framework, Part II - Functional Policies, and

Part III - Land Use Policies.

[177] On Schedule A - Settlement Pattern of the OP, the subject site is located within

Urban Planning Area and is designated as Mixed Use Activity Areas.

[178] On Schedule B, Comprehensive Land Use Plan – Urban Planning Area of the

OP, the subject site is within the Downtown Urban Growth Centre boundary and is

designated as a Mixed Use Centre.

[179] On Schedule E – Downtown Mixed Use Centre Land Use Plan of the OP, the

subject site is designated as Old Lakeshore Road Mixed Use Precinct (Area B).

 Schedule E of the OP illustrates that the Downtown Urban Growth Centre

Boundary in the vicinity of the subject site: extends to the waterfront to the

south; extends easterly to Stratheden Drive within which, are the 5 apartment

buildings of 4-18 storeys, east of the subject site; includes the 15 storey, long,

slab styled apartment building, just north of Lakeshore Road, on the west side

of Torrance Street; Includes the February 13, 2018, Adi Development Group

Inc. OPA and ZBA, OMB approval at 374 Martha Street, for a 26 storey

building containing 240 residential units, that is currently under construction;

Includes the October 27, 2021, Lakeshore (Burlington) Inc. OPA and ZBA,

OLT approval at 2069-2079 Lakeshore Road and 383-385 Pearl Street, for a

29 storey building containing 320 residential units; and includes the proposed

27 storey building of 310 residential units by Core Development Group, OPA

and ZBA approval on the adjacent property to the west of the subject site

(2093-2101 Old Lakeshore Road & 2096 – 2100 Lakeshore Road).

Mixed Use Activity Area Designation

[180] Section 5.2.2 regarding policies for development in the Mixed Use Activity Area

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provides the following:



The design and development of Mixed Use Activity Areas shall

promote these areas as focal points for community activities that are

characterized by a compact form of development, pedestrian-

orientation, greater accessibility to public transit and higher intensity

development (5.2.2d).

The City may ensure the proper integration of Mixed Use Activity

Areas with surrounding neighbourhoods through measures such as

pedestrian walkways, cycling paths and transit routes, and the

protection of the physical character of these neighbourhoods through

urban design (5.2.2k).

The City may consider the use of reduced parking standards in Mixed

Use Activity Areas in order to encourage greater reliance on non-

automobile forms of transportation (5.2.2l).

Old Lakeshore Road Mixed Use Precinct (Area B) Designation

[181] This is the precinct within which the subject site is located. Section 5.5.7.1 sets

out the objectives for development in the OLRMUP that include:



To provide an area in the Downtown for high intensity, mixed use

development that is pedestrian-oriented and transit-supportive, which

helps meet Provincial Growth objectives and provides for a transition

from the highest density mixed-use area (Wellington Square Mixed

Use Precinct) to the more residential areas to the east (5.5.7.1a).



To require a high standard of design that has a sense of pedestrian

scale and comfort that is compatible with existing development and

reflects the unique history and character of the precinct (5.5.7.1c).

To establish East, West & South Sectors that will be subject to

specific land use policies. Schedule E identifies the general limits of

the Sectors with Area ‘A’ being the West Sector, Area ‘B’ being the

East Sector and Area ‘C’ being the South Sector (5.5.7.1d).

[182] Section 5.5.7.2a sets out the land uses permitted in the Old Lakeshore Road

Mixed Use Precinct, which are:

high-density apartment residential uses, including the residential use of

upper storeys of commercial buildings (5.5.7.2a(i));

[183] Section 5.5.7.2b sets out the density and height of development permitted in the

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“East Sector (Area ’B’, Schedule E)” of the Old Lakeshore Road Mixed Use Precinct.

This section provides that:

Development will be subject to the following criteria:

The minimum density of residential buildings shall be 51 units per net ha.

The minimum height of buildings shall be two (2) storeys and the

maximum height of buildings shall be six (6) storeys and 19.5 m.

[184] Section 5.5.7.2d sets out special consideration for taller buildings in the East

Sector as follows:

Taller buildings may be permitted in the East Sector, up to a maximum

height of 8 storeys and 29 m, where they provide compatibility with

surrounding land uses and a sense of pedestrian scale by the use of

building design incorporating ground level, street-oriented podium, and

subject to the community benefits provisions of Part VI, Subsection 2.3 of

this Plan and the following details to the satisfaction of City Council:

[185] Mr. Goldberg notes that for all of the Downtown Burlington land use designations

and precincts, the applicable policy sections of the City OP contain site-specific

exception policies for specified properties, which generally permit greater levels of

heights and densities compared to those otherwise permitted in that land use

designation and precinct.

[186] The OPA and ZBA approvals in the vicinity of the subject site authorize much

taller and denser developments when compared to the permissions for each

designation and precinct in this part of Downtown Burlington.

City of Burlington Zoning By-law No. 2020

[187] Mr. Goldberg stated that the in-force City of Burlington Zoning By-law that is

applicable to the subject site is ZBL 2020. The ZBL 2020 was adopted to ensure that

the City’s zoning provisions were consistent with the 2008 City OP. The as-of-right

permissions in the ZBL 2020 are consistent with the maximum permitted height and

density in the in force OP.

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[188] The subject site is zoned “Downtown Old Lakeshore Road A” (“DL- A”), which

permits a variety of uses, including retail, service commercial, community, office,

hospitality, entertainment, and recreation. Dwelling units are also permitted, but the

ground floor of any building within 15 m of a public street is required to provide only

retail or service commercial uses.

[189] The Maximum Permitted Height for the DL- A zone is ten (10) storeys up to 31.5

m. A ZBA is required to implement this proposal.

[190] The proposed ZBA will be site-specific, aimed at implementing the proposal. The

proposed development will require site-specific exceptions regarding height, parking,

setbacks, balcony projections, and FAR.

[191] With respect to height, FAR, and parking, the amendments are required to

achieve consistency and conformity with the PPS, Growth Plan, and ROP policies for

UGCs.

[192] The proposed development will support the achievement of complete

communities by integrating a mix of residential and commercial uses in a form that is

well designed and consistent with the planned and emerging built-form context of the

area. It will add a significant number and varied mix of new residential units on an

underutilized, site in Downtown Burlington. Mr. Goldberg stressed that the subject

proposal plugs into the existing and emerging built form context of this area in a

complementary and compatible manner.

[193] The proposal is located on a site that is in the interior of, and not at the edge of,

the UGC. In Growth Plan terms, the subject site is amongst a mixed density and mixed

height UGC which does not interface directly with the area outside of the centre,

including the Residential – Low Density area to the east. In Mr. Goldberg’s opinion, the

proposal sufficiently addresses transition from a Growth Plan perspective.

[194] With respect to the removal of Downtown Burlington as a MTSA, the John Street

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Bus Terminal is no longer an identified MTSA, yet it continues to satisfy the Growth Plan

definition as an MTSA, and it continues to be an important component of Downtown

Burlington’s public transit network. This network includes many public transit routes,

converging at the John Street Bus Terminal located within close walking proximity to the

subject site, and where such routes service many locations and directions in Burlington

and beyond, including linking with rapid transit Go stations.

[195] Mr. Goldberg opined that the proposed development is consistent with the

overarching policy objectives of the new OP (not in-force), which is to direct growth to

appropriate locations as required by Provincial planning policy, and promote

development that is well designed to fit within the existing and planned context of the

area. While many of the general objectives of the City in-force OP are satisfied by the

proposal, the specific prescriptions of the City OP require amendment. That is the

purpose of this OPA.

[196] The intent of the policies of the in-force OP, Mr. Goldberg opined, is to permit

development that is compatible with the existing built form context of the area.

Compatibility is context specific, and the context of the subject site is an eclectic mix of

land uses, built forms, scales and heights, including tall towers, that comfortably and

compatibly co-exist together, without adverse planning impacts.

[197] Mr. Goldberg testified that the in-force OP policies applicable to the subject site

regarding height and density are out of date in relation to current intensification policies

of the PPS, the Growth Plan and the ROP. They also prevent the optimization of this

subject site within Burlington Downtown. The subject applications will permit

development at a scale that is in keeping with its Downtown setting in accordance with

the Provincial and Regional policy direction. He emphasized that the subject OPA

application is a site specific Planning Act means of keeping the City OP up to date with

the Provincial policy direction as set out in Section 4.6 of the PPS.

[198] Mr. Goldberg opines that the subject applications are in the public interest, that

the appeals, the OPA and ZBA applications be allowed, subject to the City and

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Applicant reviewing and agreeing on the final form and content of the OPA and ZBA

instruments.

[199] The Tribunal prefers the opinion evidence of the Applicant’s witnesses in

particular Messrs. Goldberg, Corazza, Kasprzak, Hannay, Bouwmeester, and Ms.

Gillezeau, and other Applicant’s witnesses over those contrary opinions of Messrs.

Romano, Evershed, Medeiros and Mlles. Shareqi and Edgcumbe (save for their

opinions on the 2 m road widening) on the City’s side. The Tribunal finds that the

Applicant’s witnesses opinion evidence persuasive for the redevelopment’s approval.

[200] The Applicant has undertaken relevant specific studies (which can be updated for

the subsequent site plan approval) through specialized experts and the several well

qualified experts had accordingly testified at the hearing.

[201] The Tribunal agrees with Mr. Goldberg that the subject applications promote the

efficient use and optimization of the underutilized subject property by intensifying

development at a transit supportive density in a location that is well served by public

transit and municipal services and facilities. This is despite the fact that the John Street

Bus Terminal is no longer a MTSA. It continues to service this area and will continue to

do so as a de facto transportation hub with connected bus routes and stations.

[202] The Tribunal finds that the development is consistent with the PPS on a subject

site identified for growth and intensification. The proposed development is at a density

that is appropriate and suitable for the surrounding built form and planned context.

[203] The Tribunal agrees with Mr. Goldberg that the subject applications conform to

the Growth Plan. The proposed development is on a subject site within the UGC that

will optimize the use of the lands and the available infrastructure and municipal

services. The Proposal is transit supportive, promotes the continued use of the existing

bus depot, and contributes to a healthy complete community in accordance with the

Province’s growth objectives.

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[204] The subject property transitions under the transition policy of the ROPA 48, and

remains in the UGC. The proposal conforms to the ROP.

[205] The existing and emerging built form context in the area supports mixed use,

high density, tall, and transit supportive development. The site is in a mixed use UGC

where intensification is permitted. The Tribunal finds that the Proposal conforms to the

in-force OP.

[206] The Tribunal accepts Mr. Goldberg’s overview and opinion that accords with the

Policy framework’s consideration and evaluation of provincial and municipal

developments. The Tribunal is satisfied that the OPA and ZBA meet the requirements of

the Policy and legislative framework.

Issue No. 4: Is the proposed development compatible with the existing and

planned neighbourhood context, represents good land use planning and in the

public interest?

[207] This redevelopment represents good land use planning and is in the public

interest. The Tribunal finds that the redevelopment is compatible with the existing

character of the neighbourhood. The conclusions are arrived at upon evidence

presented by the Applicant’s expert witnesses.

[208] City Planner, Mr. Romano questioned whether the proposal is compatible with

the existing and planned context. He opined that the redevelopment is not compatible.

In particular, the site is not optimally utilized for the intensification and density that the

subject site is intended for. According to him, the height and density proposed for the

site is not compatible nor well designed. New development is required to be compatible

with the surrounding built context and the proposal represents overdevelopment for this

site as it is triangular in nature and not suited for this over intensification.

[209] He stated that the objectives of Section 2.5 of the OP relate to increasing the

housing stock and encouraging intensification in a context suitable manner. Section 2.5

notes that this is encouraged provided the additional housing is compatible with the

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scale, urban design and community features of the neighbourhood. The policies in 2.5.2

address adequacy of municipal services, off-street parking supply, the capacity of the

transportation network, proximity to transit facilities, accessibility to community services,

natural and cultural heritage feature protection and the following:

 2.5.2(v) compatibility is achieved with the existing neighbourhood character in

terms of scale, massing, height, siting, setbacks, coverage, parking and

amenity area so that a transition between existing and proposed buildings is

provided.

[210] Section 5.5, the Downtown Mixed Use Centre component of the Official Plan

provides the next layer of objectives and policies. These policies reference and include

the more specific policies found within the Precincts such as the OLRMUP. Section 5.5

describes that subsequent policy framework to achieve the following:

 5.5.2.m) To establish planning precincts within the Downtown, each with their

own distinct character and specific planning policies.

 5.5.2.o) To ensure that the density, form, bulk, height and spacing of

development is compatible with the surrounding area.

[211] Mr. Romano opined that the proposal is not in keeping with the character of

neighbourhood area since the proposal does not comply with the maximum height

restrictions in the OLRMUP nor the other requirements.

[212] He further opined that the new development is impactful to the surrounding

existing buildings and the public realm. He emphasized that minimizing undesirable

impacts on existing adjacent buildings is a paramount consideration, specifically the

requirement of appropriate transition.

[213] His opinion is that the proposed 0.4 m right-of-way widening is not reflective of

the 2.0 m widening required by the City. He stressed that the 2.0 m setback will assist in

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creating a compatible public realm to built form relationship with the abutting Lakeshore

Road while providing for a wider clear pathway for pedestrian comfort and safety. The

built environment and features such as setbacks and building structures from the

property line and the 2.0 m right of way of the zoning is the character of the recently

approved developments in the area.

[214] Mr. Goldberg, the Applicant’s planner, disagreed with the City’s planner. There is

an existing, and an emerging/evolving pattern of development in this part of the

Downtown Burlington where taller buildings, as high as 29 storeys, in very close

proximity to lower built forms of residential and non-residential development co-exist to

create a compatible mixed height and mixed density character and fabric for this part of

the Downtown.

[215] In the vicinity, 29, 26, and 22 storey tall buildings have been approved to the

northwest and west. To the immediate west is a 27 storey building. Across the street to

the north and northeast are nearby mid-rise buildings of five (5) and seven (7) storeys,

east of which is a large, slab styled, 15 storey apartment building on the west side of

Torrance Street.

[216] To the east of the subject site on the south side of Lakeshore Road, at 2114

Lakeshore Road, is an 18 storey apartment building.

[217] This existing and emerging context and pattern, arising from existing longer-term

development and recent approvals, demonstrate that within this part of the Downtown

Mixed Use Centre, there is a mixed height and mixed density pattern, from site to site,

and across land use designations and precincts.

[218] In Mr. Goldberg’s opinion, the subject proposal fits compatibly into this pattern

and is an appropriate and well-considered addition to this area.

[219] The concept of ‘transition’ as stated in Policy 5.5.7.1 of the in-force OP has been

canvassed during prior applications and reported on in prior tribunal cases for sites in

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this immediate vicinity of the subject site. It is his opinion that transition has been

achieved by the subject application in conformity with this OP policy.

[220] The OLRMUP policies call for high density, mixed use, that is pedestrian friendly,

and helps meet Provincial objectives. It is within this context and the existing and

planned context of this area that the word ‘transition’ must be considered, Mr. Goldberg

reiterated.

[221] The mixed heights of existing and approved buildings in the area to the north,

west and east of the subject site demonstrates that the existing and approved context

within the Downtown Mixed Use Centre are varied where high rise co-exists with low

rise and there is no particular consistency from site to site.

[222] Policy 5.5.7.1 also speaks of transition from the highest density mixed use area

(Wellington Square Mixed Use Precinct) to the more residential areas to east. The

subject site is within a mixed use area within the Mixed Use Centre and is not a

residential area to the east, which would be the Residential – Low Density area to the

east, as shown on Schedule B, Comprehensive Land Use Plan of the City OP. The

subject site is surrounded by lands within the Mixed Use Centre in all directions and is

not abutting, nor contiguous with Residential – Low Density lands.

[223] The concept of transition is not intended to be at the expense of optimization

within the Mixed Use Centre. In Mr. Goldberg’s opinion, there is no implied, nor required

‘transition down’ in the policy and certainly not within the Mixed Use Centre area itself.

In his opinion the policy does not direct to ‘transition down’ and if that was an intended

purpose of the policy, then the policy could have been clearly and specifically drafted,

which it is not. In the circumstance, the policy is generally worded. He opined that this

generally worded policy, lacking in clear and specific direction, needs to be balanced

with the clear Provincial direction to optimize the use of lands and infrastructure,

particularly in Urban Growth Centres.

[224] Section 5.5.7.1(c) of the Old Lakeshore Road Mixed Use Precinct policies,

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requires:

a high standard of design that has a sense of pedestrian scale and

comfort that is compatible with existing development and reflects unique

history and character of the precinct.

[225] In reference to the high quality of design that has a sense of pedestrian scale

and comfort, he relies on, and adopts, the evidence of the Applicant’s Architect, Mr.

Corazza, Urban Designers, Messrs. Kasprzak, Hannay, and Ferris (Landscape

Architect), all of whom testified at the hearing.

[226] Mr. Goldberg stated that the intent of these and many other policies of the OP is

to achieve a compatible development with the existing developments in the area. As

has been demonstrated through the evolving approvals in the area, compatibility is

context specific, and the context of the subject site is an existing, designated and

evolving Downtown context, where an eclectic mix of land uses, built forms, scales and

heights, and architectural and urban design expressions/solutions comfortably and

compatibly co-exist together, without adverse planning impacts. In other words, there is

a much greater level of tolerance for differences in a Downtown environment and

context, and this is clearly no different in the case of Downtown Burlington.

[227] In view of the above, Mr. Goldberg concludes that the proposal will be compatible

with the context of the subject site.

[228] The Tribunal finds that the existing and emerging context already contains

examples of high-rise buildings. There are a number of approved high-rise

developments of equivalent heights in the vicinity. The abutting property (Core

Development) for example, is 27 storeys high. As such, the proposed development is

not out of character in this area. The proposal is thus compatible with the existing

neighbourhood as defined in the OP. The Tribunal is satisfied that the proposed

development is compatible with the existing and planned neighbourhood context,

represents good land use planning and in the public interest.

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[229] The Tribunal finds that the Planning Applications represent good planning, are

in the public interest and should be approved.

Submissions

Applicant’s Submissions

[230] Counsel for the Applicant submits that the CORE decision is significant as the

broad planning issues are the same as with the subject property. The City’s witnesses

Mr. Romano and Mr. Evershed canvassed the same opposing opinion evidence in that

matter as in the instant case. The applicable planning policy regime was virtually

identical in the Core and subject property case.

[231] In the Core case, Mr. Evershed offered that 2069 Lakeshore Road, an approved

building of 29 storeys in the northwest, would be a transition point to the Core 27

storeys which is situated more eastwards in the OLRMUP east sector. However, for Mr.

Evershed, in the instant case, the subject property’s building is 12 m higher (translates

to 4 storeys) than the Core building, so there is no transition here.

[232] The Tribunal accepts that the Core decision that approved a 27 storey building

was approved in the same precinct that the subject property is situated, in fact just 25 m

to the west of the subject property proposed building. In this Precinct, the permitted

height difference of the west side from the east side is four (4) storeys. Mr. Romano did

not explain this height difference by way of transition in the instant case. The in force

OP contemplates this four (4) storey difference between the Core building and the

subject property.

[233] In the new OP, the precinct, now designated Old Lakeshore Road Precinct

(“OLRP”), the four (4) storeys difference is maintained while the focus of transition is to

the waterfront where the concept of “height” is first introduced.

[234] Counsel for the Applicant submits that Ms. Gillezeau provided, by far, the most

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comprehensive assessment of the implications of the proposed development to meeting

provincial policy for accommodating growth and optimizing the use of urban land,

intensification sites and municipal services. Ms. Gillezeau concluded:

A very substantial amount of new housing is needed in the built-up area

of the City of Burlington to achieve the intensification targets and phasing

policies of the Region. The proposed development will provide new

housing through intensification to help meet the projected housing needs

of the City in a strategic growth area (the Downtown Burlington Urban

Growth Centre) where infrastructure, public service facilities, transit and

active transportation options are available.

[235] Ms. Gillezeau rejected Mr. Romano’s proposition that the in-force OP framework

provides for an “optimal” intensification opportunity while the proposal is an “excessively

high intensity development”. Ms. Gillezeau noted that the density of the proposed

development is appropriate for and will efficiently use the existing infrastructure and

public service facilities in the area around the subject site. Further, the “as of right”

permissions would provide approximately 120 fewer housing units. This is a significant

and consequential difference in terms of optimizing the use of this important

intensification opportunity.

City’s Submissions

[236] Counsel for the City submits in general that the Applicant did not complete the

necessary studies for the revised proposal. There is a failure to update the previous

studies as such there is insufficient information as to whether the development can be

undertaken without negative impacts from the geotechnical, the hydrogeological and

municipal engineering perspectives. The City complained that the Applicant relegates

these and landscape/trees matters to the Site Plan process whenever it was convenient

for it to do so. The Tribunal notes that what is under consideration is the OPA and ZBA,

and several matters of the site plan are more appropriately dealt with in the Site Plan

approval process.

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2.0 m Road Widening

[237] The City’s compelling submissions on the required 2.0 m road widening are

persuasive. The Applicant’s experts have adamantly held that the 2.0 m requirement

need not be fulfilled, as, for them, the 0.4 m provision is sufficient for the provision of the

respective zones as per the Guidelines.

[238] Speaking of street level, the urban designers for the Applicant, Messrs. Kasprzak

and Hannay, supported the dedication of 0.4 m rather than the 2.0 m required by the

City. The urban designers, when speaking of the Clear Path Zone, the Furnishing Zone

and the Marketing Zone, advised the Tribunal that the proposed development was

appropriate because the streetscape will not be perceived as comprising different

elements. They advised the Tribunal that it will be viewed as a unified space. City

Counsel contends, and the Tribunal concurs, that such an approach ignores the

practical and legal realities that arise between land that is privately owned and land that

is publicly owned.

[239] The Marketing Zone space (proposed to be 3.6 m in width by the Applicant) will

be privately owned. The Marketing Zone, by definition, is to be used by commercial

entities for marketing or benefiting its customers (e.g., placing sandwich board ads, or

setting up tables and chairs for customers). Counsel submits that the urban designers’

views that the distinction between zones will be viewed as a unified space is unrealistic.

The Tribunal agrees that it is imperative that public spaces be obtained for the benefit of

the public (pedestrians and persons who may need assistance). If the sidewalk (Clear

Path Zone) is increased through the road widening by 1.6 m (in addition to the 0.4 m

already offered by the Applicant), the Clear Path Zone can be developed in accordance

with the City’s needs, together with the land in front of the CORE site. The Marketing

Zone at the subject property can still meet the 2.0 m standard.

[240] Mr. Elkins, Applicant’s transportation witness, supported a development that

provided the minimum sidewalk width of 1.8 m, when the City’s policies call for an

enhanced public realm and active transportation within the Downtown. In presenting his

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opinion to the Tribunal, Mr. Elkins also questioned why the latest multi-model

transportation standards, the Multi-Modal Level of Service Guidelines (“MMLOSG”),

should be utilized. He took this position notwithstanding the fact that the MMLOSG

specifically state that they are consistent with Provincial policy [Exhibit 1 Joint

Document Book pg. 2952] and should be utilized when assessing an application such

as the present one.

[241] Mr. Elkins supported the proposed development, which does not provide the

required 2.0 m dedication as required by the City for the purpose of achieving an

enhanced pedestrian realm and an improved sidewalk condition. He went so far as to

state that a Level of Service “D”, as measured in the MMLOSG, is appropriate for this

Downtown location. When questioned during cross-examination if he truly supported a

Level of Service “D”, which is described as a condition in which “pedestrians

occasionally have sufficient space in which to walk or roll in a social manner that is

removed from traffic nuisance [Exhibit 1 pg. 2959], Mr. Elkins remained steadfast and

said that this was appropriate.

[242] The Tribunal finds that Mr. Elkins’s view is unnecessarily partisan and not of

assistance. It is apparent that a 2.0 m road widening will improve the transportation

condition (especially active transportation) within the City’s Downtown. A sidewalk of the

width sought by the City will result in a Level of Service “A”, which is defined as a

condition in which “pedestrians always have sufficient space in which to walk or roll in a

social manner that is removed from traffic nuisance” [Exhibit 1 pg. 2959].

[243] The Tribunal notes that the Core property adjacent to the subject site, dedicated

2.0 m to the City to allow it to achieve its mobility and active transportation goals and

objectives along this portion of Lakeshore Road.

[244] Mr. Llewellyn, the Applicant’s municipal engineering witness, refused to support a

dedication of 2.0 m because, as he put it, requiring a dedication of 2.0 m will affect the

floorplate (which is non-existent at present and is just a proposed structure) of the

underground parking. He testified that it will make it inconvenient for the people who use

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the parking and may affect the number of parking spaces.

[245] Mr. Llewellyn, (not a lawyer and not legally qualified), testified that the issue of

the parking could be solved if a stratified arrangement could be achieved with the City.

This may result in the City controlling the top portion of the 2.0 m it seeks, with the

Applicant retaining title (or having an easement) to the ground below the portion

controlled by the City. Mr. Llewellyn provided no evidence as to how this would function

or whether it has ever occurred in Burlington. He also provided no evidence to

demonstrate that the City is in any way interested in pursuing or accepting a stratified

dedication of lands that should comprise the public right-of-way.

[246] With respect to the dedication of 2.0 m to the City, it appeared that Mr. Goldberg,

the Applicant’s planner, clearly understood and supported the City’s requirement to

have 2.0 m dedicated to it as part of this proposal. However, he too suggested the

concept of stratified ownership which has never been accepted in Burlington and in

which Burlington has no interest. Mr. Goldberg admitted that there is Provincial and City

policy in support of the demand for a 2.0 m dedication. He advised the Tribunal that this

matter that should be addressed at the Site Plan stage.

[247] Mr. Goldberg’s suggestion that the issue of the 2.0 m widening be put over to

Site Plan is not appropriate. This is not a new issue. It was raised by the City after the

applications were filed. The entirety of the concept plan and proposed development are

based upon a 0.4 m widening. The Appellant has demonstrated nothing but resistance

to dedicating the required 2.0 m. The City is not prepared to accept 0.4 m and has

insisted, for appropriate infrastructure reasons, that 2.0 m must be dedicated.

Furthermore, the Issues List, at Issue 15, states that a question to be answered in this

hearing is, “Does the Proposed Development provide an appropriate right-of-way width

for Lakeshore Road?”. [Exhibit 1 pg. 71]. It would be a waste of the resources of the

parties and of the Tribunal’s time to have had this hearing, and all of the evidence

tendered, only to have the issue of the dedication determined at the Site Plan stage.

This will simply result in a second hearing in which the same question will be asked and

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the same evidence will be determined. All parties agreed that Issue 15 was an issue to

be determined as part of this hearing and the Tribunal ordered that this was an issue to

be determined.

[248] The Tribunal notes that Mr. Goldberg did not identify a single policy reason as to

why the Applicant should dedicate anything less than 2.0 m. When addressing the

question of the 2.0 m dedication, Mr. Goldberg could only cite the potential costs to his

client as to why the dedication was even an issue.

[249] When speaking to the benefits of having the 2.0 m dedication to the City, rather

than the 0.4 m offered by the Applicant, Ms. Shareqi, City’s landscape witness noted

that an additional 1.6 m of City owned land will allow for greater flexibility to coordinate

utilities without the landscaping or trees having to be sacrificed. It was Ms. Shareqi’s

opinion that if the full 2.0 m is not to be dedicated to the City, it is imperative that the full

details of how utilities and landscaping can co-exist, be disclosed at this point in time.

She noted that the Applicant had failed to provide such details.

[250] When addressing the need for a dedication of 2.0 m, Ms. Edgcumbe, City’s

Transportation Planner, confirmed that 2.0 m is the minimum that the City requires. In

other words, the City is asking only for what is necessary to fulfill its transportation

planning objectives.

[251] It was the opinion of Ms. Edgcumbe that the Applicant’s design, which only

provides for a Clear Path Zone (i.e., sidewalk) of 1.8 m, does not provide an “enhanced

pedestrian realm” and nor does it meet the intent of the City’s Integrated Mobility Plan. It

was the evidence of Ms. Edgcumbe that providing a sidewalk of 1.8 m is the bare

minimum of what is required to construct a sidewalk in Burlington.

[252] When addressing why it is appropriate to require a sidewalk that will be wider

than 1.8 m as proposed by the Applicant, Ms. Edgcumbe, also relied upon the most

recent standards that have been released to address Multi-modal transportation.

Relying upon the newly released MMLOSG, Ms. Edgcumbe demonstrated that the

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Applicant’s proposal only provides a Level of Service “D” for pedestrians, while it is

possible to provide a Level of Service “A” at this location. The Level of Service “A” can

be achieved if the 2.0 m dedication is provided as demanded by the City. [Exhibit 1,

pgs. 2959, 2960 and 2985]

[253] The MMLOSG expressly note that they are consistent with the PPS and the

Growth Plan. The Guidelines also reflect the current best practices for transportation

planning and engineering in the Province of Ontario.

[254] Mr. Medeiros, City’s engineering technologist noted that the Applicant had

responded to the City’s road widening requirement by only providing a 0.4 m dedication

to the City. This was in contrast to the previous drawings and plans prepared and

submitted by the Applicant in which a 2.0 m dedication had been shown. He testified

that, in reducing the dedication to 0.4 m, the Applicant’s drawings had failed to ensure

that there would be no permanent development or private infrastructure encroachments

within the City’s road allowance. This deficiency, according to Mr. Medeiros, was

demonstrative of the fact that the Applicant had failed to show that there would be no

negative impacts on the public right-of-way.

[255] In demonstrating this concern, Mr. Medeiros took the Tribunal through the

Lakeshore Road cross section that had been prepared by the Applicant [Exhibit 1 pg.

430], which shows below grade utilities under the proposed bicycle lane. Mr. Medeiros

testified that both the City and utility companies do not like to have their services located

under the traveled portion of the road allowance (cars/bicycles) and that these would

likely be moved to the boulevard or sidewalk area. He noted that the potential impacts

of such a relocation had not been demonstrated.

[256] On the matter of stratifying the 2.0 m dedication, as had been suggested by the

Applicant’s witnesses, Mr. Medeiros was unequivocal in his testimony that the City has

not accepted an encroachment of a private building’s below grade structures within the

City’s public right-of-ways. He noted that road widenings are taken above grade, to the

maximum level (the sky), and below grade, to the maximum level (the centre of the

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earth).

[257] Mr. Medeiros explained that there would be significant concerns with

maintenance issues and access if any form of stratified ownership or control were to

occur. Mr. Medeiros noted that if the future condominium corporation needed to

maintain its underground parking structure, it would have to excavate the public right-of-

way, risking damage to utilities, sidewalks, trees and, at the same time, disrupting

pedestrian access to the public realm. Mr. Medeiros also noted that the inverse situation

may also occur. If the City were required to undertake work within the public road

allowance, and if there is a parking structure under the road allowance, there is a risk

that the City could damage the private underground parking garage. It was the evidence

of Mr. Medeiros that it is best to simply avoid those potential risks by having the

Applicant dedicate 2.0 m to the City without the Applicant retaining any interest in the

dedicated lands.

[258] It was Mr. Medeiros’ opinion that, to implement the City’s current active

transportation and streetscaping needs, which include below grade utilities, while also

ensuring that there is sufficient space to maintain and upgrade and possibly relocate

above grade and below grade utilities, it is necessary to have the full 2.0 m dedicated to

the City.

[259] The Tribunal regards the 2.0 m dedication as a significant matter in this hearing.

The Applicant’s proposed development is based on the conceptual drawing

accompanying the OPA and ZBA. It can be argued that the whole redevelopment

stands on this significant matter. Parties have agreed to put this issue before the

Tribunal and if this is not dealt with, after both parties had voluntarily and thoroughly

canvassed it, the Tribunal will be abdicating its duty and obligations. At times an issue

can be put off, however in this instance, this appeal will need to firmly place this

dedication of 2.0 m road widening, as a matter and requirement, to be considered

already predetermined at the ZBA for the Site Plan Approval process. The Tribunal is

evaluating the development wholistically on provincial interest and provincial plans as

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well as municipally. The Applicant may contend that the 2.0 m requirement is best left to

the Site Plan process. The Tribunal disagrees. To be sure, the Site Plan application is

not before the Tribunal. However, the Tribunal is deciding the 2.0 m road widening as

being a necessary term and condition in the ZBA. The imposition of this condition is

necessary to implement the instrument in order to permit a redevelopment to achieve

the enhancement of the public realm for pedestrian and active modes of transportation

as envisioned pursuant to the legislative framework and Policies. The actual Site Plan

Approval process and the details required are left to the municipal approval authority,

the City.

Policy Framework Findings

Matters of Provincial Interest – Section 2 of the Planning Act

[260] The Tribunal must have regard to section 2 of the Act that prescribes a list of

non-exhaustive criteria in carrying out its responsibilities under the Act.

Applicable Planning Policy Documents

[261] The Tribunal agrees that the planning context for the proposed Development

is established by the following: the PPS; the Growth Plan; the ROP; and the in force

City OP.

PPS 2020

[262] Section 3(5) of the Act requires the decision on a planning matter of the Tribunal,

shall be consistent with the provincial policy statements that are in effect.

[263] The PPS 2020 applies and the Tribunal finds that the proposed OPA and ZBA

are consistent with the PPS.

[264] Specifically with respect to Policy 1.1.1(b), the proposed plan will provide

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additional housing with a range of residential apartment units, which will help meet long-

term needs, along with useable open amenity spaces.

[265] With respect to Policy 1.1.3.4, the proposed development promotes appropriate

development standards that will facilitate intensification, redevelopment and compact

form. Development standards in this case include the proposed podium design and the

proposed height and the required public street widths, all of which will result in an

appropriate balance between making efficient use of land and infrastructure and

ensuring compatibility with the existing and planned built form context. The proposed

development will provide a range of new apartment units in the high-rise residential

building.

GROWTH PLAN

[266] The Growth Plan policies encourage intensification in appropriate locations. The

site is located in Downtown Burlington, an Urban Growth Centre, where high-rise and

high density mixed use developments exist and are approved, and conventionally co-

exist comfortably and compatibly with lower forms of development. Downtown

Burlington is also rich with available public services for health, education, recreation,

employment, and entertainment uses and activities. (s. 2.2.3.1).

[267] The use of the subject site for a mixed use development, at the density proposed

will assist in meeting the minimum population growth targets, if not exceed them, for this

Urban Growth Centre. The policies in the Growth Plan regarding intensification and

density targets are minimum standards and municipalities are encouraged to exceed

these targets, where appropriate. The subject site is well suited for a high density mixed

use building that contributes to meeting or exceeding the minimum intensification and

density targets (s. 2.2.3.2 -minimum gross density targets 200 residents and jobs

combined for the Downtown Burlington Urban Growth Centre).

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HALTON REGION OFFICIAL PLAN (“ROP”)

[268] The proposed development conforms with the ROP by intensifying an

underutilized site in an Urban Area, Built Up Area, and Urban Growth Centre that is

targeted for significant population and employment growth.

[269] The proposed development is located within an Intensification Area by reason of

its location within an Urban Growth Centre. The proposed intensification and increased

density of the proposal, conforms with the policies that direct development within these

areas with a mix of uses and higher densities (s. 81 of ROP).

[270] The proposed development will contribute to achieving the minimum growth

targets, set out by the Region, by providing new housing units in a compact and high-

density urban form.

[271] The proposed development supports the policies for Intensification Areas by

providing a mix of uses near the John Street Bus Terminal, and provides residential

density that will support both the existing and future viability of the transit service, as

well as potentially enhanced transit service to the Downtown.

[272] The proposed intensified form of mixed use development will allow the efficient

use of the subject site and be supportive of transit usage. The development will

contribute to building a healthy community through encouraging the use of public transit

and active modes of transportation, such as walking and cycling, to destinations

throughout the City.

HALTON REGION OFFICIAL PLAN AMENDMENT 48 (“ROPA 48”)

[273] With respect to the Urban Growth Centre boundary modification, ROPA 48,

added a transition provision in Section 80.3 which transitions the subject property. The

subject property is regarded as being located in the UGC and appropriate for

intensification and redevelopment.

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[274] Although ROPA 48 does not contain a transition provision regarding the

designation of the John Street Bus Terminal as a MTSA, that transit facility continues to

serve as a central transit hub of many City-wide and regional-wide transit routes, served

by a variety of transit providers. As such, the subject site remains subject to, and

serviced by, enhanced public transit within close walking proximity to it.

CITY OF BURLINGTON OFFICIAL PLAN 2008 (“OP/in-force OP”)

[275] The in-force City OP policies pre-date the current PPS and Growth Plan, and

some policies have yet to catch up with the planning realities in the City.

[276] The City has not brought into force updated, land use and built form policies for

the Downtown Mixed Use Centre, including the OLRMUP designations, to reflect

current PPS and Growth Plan policies. The current Provincial policy imperative is to

‘optimize’ land and infrastructure.

[277] The Tribunal acknowledges the approved developments in the area. Three

developments in very close proximity to the subject site – 2069-2079 Lakeshore Road

and 383-385 Pearl Street (29 Storeys and 320 residential units), owned by Lakeshore

(Burlington) Inc. (OLT File No. PL200040) (“Lakeshore/Pearl”); 374 Martha Street (26

Storeys and 240 dwellings), owned by Adi Development Group Inc. (OMB File No.

PL150274) (“374 Martha”); and the Core Property (27 Storeys and 310 residential units)

2096-2100 Lakeshore Road and 2093-2101 Old Lakeshore Road (OLT File No.

PL200092) on the adjacent west property – were approved by OMB/OLT following

contested hearings at heights very similar to the height of the proposed building (27

storeys and 196 residential units) on the subject site.

[278] Those projects range in similar height or taller and higher density when

compared to the OP permissions for those sites. The current definition of high density

residential uses of the OP (51 – 185 units per hectare) has been well exceeded by

those approvals, as is also proposed in the subject case, to reflect a contemporary

intensification project on this site, implementing Provincial policy.

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[279] Section 5.5.7.1 relating to the Old Lakeshore Road Mixed Use Precinct directs

that this is:

…an area in the Downtown for high density, mixed use, development

that is pedestrian friendly and transit-supportive, which helps meet

Provincial Growth objectives and provides for a transition from the

highest density mixed-use area (Wellington Square Mixed Use Precinct)

to the more residential area to the east.

[280] In relation to this policy, Mr. Goldberg concludes:

The subject proposal is a contemporary expression of a high density,

mixed use development with transit stops at the site that connect with the

nearby John Street Transit Terminal, which connects to GO stations and

other areas within the City, and beyond.

[281] The proposal seeks to amend the City OP solely due to some of the prescriptive

policies relating to height and density. These prescriptions are out of step and out of

date with the current intensification policies of the PPS, the Growth Plan and the ROP.

The OPA seeks to authorize a development that is in scale with, and in keeping with,

this Downtown setting. It is Mr. Goldberg’s opinion, that the proposal supports many

important public policy objectives of the Province, the Region and the City.

[282] The Tribunal finds that while the other developments in the vicinity inform the

Tribunal as regards the height and density of the neighbourhood development, those

are decisions that are persuasive in nature. This Tribunal has regard for the particular

facts and merits of this matter and has decided based upon the specific location,

physical attributes and characteristics of the subject property and the proposal. The

Tribunal finds that the proposed development satisfies the objectives of the OP for the

Downtown Mixed Use Centre.

New Official Plan

[283] Mr. Goldberg opines and the Tribunal concurs that the proposed development

conforms to the overarching policy objectives of the new OP, which is to direct growth to

appropriate locations as required by Provincial planning policy, and promote

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development that is well designed to fit within the existing and planned context of the

area.

CITY OF BURLINGTON ZONING BY-LAW 2020 (“ZBL 2020”)

[284] The proposed ZBA will be site-specific, aimed at implementing the proposal. The

proposed development will require site-specific exceptions regarding height, parking,

setbacks, balcony projections, and FAR.

[285] The in-force OP sets the policy framework within which development is to take

place. The Tribunal finds that the proposed development conforms to the in-force OP

and is compatible with adjacent property developments.

DECISION

[286] Mr. Romano’s opinion can be summarised to reflect that transition, public realm,

pedestrian scale and active transportation enhancements should triumph over routinely

increasing heights, density and housing units increase. There must be strict adherence

to the OP policies and Zoning requirements of the Precinct.

[287] Mr. Goldberg’s view is that a development with additional housing units supply

that meets minimum standards of policies and zoning should be sufficient for approval

of the OPA and ZBA which merely seek height and density changes.

[288] The Tribunal as the arbiter of private and public interests is required to balance

these conflicting interests. Public interest demands that the provincial interest of

provincial minimum housing supply targets be met or exceeded and a healthy and

liveable community be supported. The Tribunal accepts the planning evidence provided

by Mr. Goldberg in support of the redevelopment proposal and will make the requisite

interim orders for the planning instruments subject to contingent conditions imposed by

the Tribunal.

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[289] The proposed development has regard for the matters of provincial interests in s.

2 of the Act in particular: s. 2(h) the orderly development of safe and healthy

communities; s. 2(j) the adequate provision of a full range of housing, including

affordable housing; s. 2(p) the appropriate location of growth and development; s. 2(q)

the promotion of development that is designed to be sustainable to support public transit

and to be oriented to pedestrians; and s. 2(r) the promotion of built form that, (i) is well-

designed, (ii) encourages a sense of place, and (iii) provides for public spaces that are

of high quality, safe, accessible, attractive and vibrant.

[290] The Tribunal finds that the proposal meets the PPS and Growth Plan objectives,

in particular the housing target goals of the Province.

[291] The Tribunal finds that transition in density, in a “general sense”, to the east from

the subject property is apparent. Here transition, in the in-force OP, does not engender

a downward “in height” element. What is mentioned is a transition to the east in terms of

density. As the concept of transition is not clearly defined, the Tribunal needs to balance

the need for optimization on this underutilized subject site which helps to meet

Provincial Growth Objectives against the transition requirement. Strictly, the subject

property is in a Mixed Use Centre which is not within the residential area to the east. It

does not interface with the residential area to the east. The Downtown Mixed Use

Centre has a varied mix of heights and densities from site to site. There is no uniformity

of built form height and density. However, the 27 storey subject property will be taller

and of higher density than the existing 18 storey building to the east and to the low rise

in the residential east area.

[292] This proposal conforms to the intent of the new OP (not determinative of the

applications currently under appeal) where the overarching policy objectives are to

direct developments to locations that fit in to the existing and planned built context. The

Core Building and the subject site’s proposed building are both at 27 storeys and fit into

the existing built, planned and emerging context of this area.

[293] As regards character and compatibility with the existing and planned context, the

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Tribunal finds that such compatibility exists. In the OLRMUP, the adjacent approved

CORE property’s 27 storeys (though 12 m lower) established the height context of this

precinct. The subject property’s 27 Storey is compatible with the height of the abutting

west side property. It is enlightening that, in this precinct, regardless whether in the in

force OP or the new OP, the height increase is from the west Core side (6 or 8 storeys

as compared to 10 or 12 storeys towards the east side where the subject property is

located) (see Exhibit 10 – East sector and OP Schedule E, Downtown Mixed Use

Centre Plan). This is a height differential of four (4) Storeys between the Core building

and subject proposed building.

[294] The Tribunal notes that the regulated maximum height in this precinct for the

Core building is eight (8) storeys in the west, and 12 storeys in the east side for the

subject property (a difference of four storeys i.e. 12 m). Nevertheless, events have

overtaken the regulated heights. The Tribunal (a differently constituted panel) in the

CORE decision had approved a 27 storey building to the immediate west of the subject

property.

[295] The CORE property building will be just 25 m from the subject property’s

proposed building which is similarly 27 storeys and just 12 m higher. The proposed

building in this precinct is four (4) storeys higher on the east side, generally meeting the

intent of the difference in height permissions in this precinct.

[296] The Downtown Core Precinct to the north of the Old Lakeshore precinct contains

developments of a 29 storey building (2069 Lakeshore Road) and a 26 storey building

(ADI) fronting the Lakeshore Road. To the western side of these properties are

developments of 22 storeys (Bridgewater). Thus, the neighbourhood character’s

existing and planned context are tall buildings. The surrounding built form and context

are tall buildings. The proposed development, when compared to the surrounding area

is compatible as defined in the OP.

[297] Compatibility does not mean the same nor even similar. As long as the property

can co-exist in harmony with the existing properties without negative impacts, it is

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deemed compatible. The proposed development is compatible with the existing and

planned context of the area. Compatibility is defined in the Part VIII Official Plan as

follows:

Compatible – Development or re-development that is capable of co-

existing in harmony with, and that will not have an undue physical

(including form) or functional adverse impact on, existing or proposed

development in the area or pose an unacceptable risk to environmental

and/or human health. Compatibility should be evaluated in accordance

with measurable/objective standards where they exist, based on criteria

such as aesthetics, noise, vibration, dust, odours, traffic, safety and sun-

shadowing, and the potential for serious adverse health impacts on

humans or animals.

[298] The Tribunal is persuaded by the Applicant’s experts and finds that the reports,

and testimonies by the Applicant’s witnesses adequately addressed the opinions by the

City’s witnesses, save for the matter of the 2 m road widening. The Tribunal is

persuaded by the City that the 2 m widening will enhance the public walkway, lead to

comfort and safety for pedestrians and Ontarians (including those with disabilities) while

walking, cycling or using wheelchairs on the public pathway portion that will be

dedicated and conveyed to the City. The public interest of enhancement of the public

realm for pedestrian and active transportation requires the right-of-way widening.

[299] The Tribunal is satisfied that the proposed development is compatible with the

adjacent residential properties existing and planned context in built form, scale,

architectural design and typology. The Tribunal accepts the Applicant’s witness, Mr.

Bouwmeester’s shadow studies as demonstrating there is minimal impact on adjacent

properties. There is no evidence of adverse impacts on the neighbourhood’s existing or

planned context and character by virtue of the compatibility.

[300] The Tribunal finds, upon the preferred planning evidence presented by Mr.

Goldberg, that the proposed OPA and ZBA, have appropriate regard for the matters

of provincial interest set out in s. 2 of the Act; are consistent with the PPS 2020;

conform with the Growth Plan, the ROP and the OP.

[301] The Tribunal will add contingent conditions to the approval of the instruments in

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principle (having considered parties’ submissions). The Tribunal disagrees with the

Applicant’s counsel that it has no inherent authority to do so, as s. 2(n) of the Act,

requires the Tribunal to have regard to the resolution of planning conflicts involving

private and public interests. The Tribunal has authority to make orders or give directions

as may be necessary or incidental to the exercise of the powers conferred on the

Tribunal under the Ontario Land Tribunal Act 2021 (“OLTA”) or any other Act. (s.9(1)

OLTA). Pursuant to s. 9(2) of the OLTA, the Tribunal may include in an order, conditions

that it considers fair in the circumstances, including a condition that the order comes

into force at a future fixed time or on the performance of terms imposed by the Tribunal.

[302] The Tribunal is satisfied by the totality of evidence that the proposed

development with 196 residential units that contributes to the provincial target is in the

public interest. Nevertheless, good planning requires that the 2 m road widening

requested by the City to be part of the development that contributes to the public

realm’s active pedestrian and transportation enhancement.

INTERIM ORDER

[303] THE TRIBUNAL ORDERS that :

1. The appeal pursuant to s. 22(7) of the Act is allowed and the Draft Official

Plan Amendment (“OPA”) is approved in principle subject to a draft OPA

with detailed policy provisions being received in a form satisfactory to the

parties to be presented for confirmation.

2. The appeal pursuant to s. 34(11) of the Act is allowed and the Zoning By-

law Amendment (“ZBA”) is approved in principle subject to a draft ZBA

with detailed zoning provisions and regulations being received in a form

satisfactory to the parties to be presented for confirmation.

3. The Orders are withheld pending receipt by the Tribunal of the Draft OPA

together with the Draft ZBA and the parties’ written confirmation that the

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Site Plan Approval has been finalized between the parties.

4. The Appellant shall ensure the 2.0 metre road widening required by the

City of Burlington be provided in the form and manner determined by and

to the satisfaction of the Municipality as the governing and approval

Authority.

5. The Appellant shall provide written confirmation from the Region’s Solicitor

on the satisfactory status of the Site Condition of the subject property.

6. The Appellant shall provide written confirmation from the City Solicitor that

a satisfactory execution and registration of a section 37 Planning Act

Agreement has been obtained.

7. The written request for issuance of the Tribunal’s final order after

compliance of the above stated requirements and confirmations must be

received by the Tribunal before the expiry of 180 days from the date of this

Order, or in the alternative, a written status report on the reasons of failure

to request issuance of final order, before the 180 days expiry.

8. If any of the above requirements and confirmations are not fulfilled in the

time stipulated, the Appeals herein may be dismissed.

9. In the event that there are any difficulties implementing this order, the

Tribunal may be spoken to.

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“T.F. Ng”

T.F. NG

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.