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OMB decision ignores that city has met growth targets; city seeks review of 26-storey approval at Martha/Lakeshore

Decision provides no justification for rushing adoption of OP

The city of Burlington is seeking a review of the recent Ontario Municipal Board decision that allowed a 26-storey building at Martha & Lakeshore, via a “Section 43” request under the OMB Act.

The letter to the OMB requesting the review calls the Board Decision a “manifest error” that:

  • ignored the planning hierarchy downtown that allows different heights and densities in different areas (and lower heights on this particular site);
  • refused to admit evidence that the city “had in fact met its Growth Plan intensification targets,” and was in conformity with the 2006 Growth Plan and arguably the 2017 plan (“no evidence” was presented to show we are not in conformity);
  • received “no evidence” that the existing Official Plan permission of 4-8 storeys would adversly affect transit supportive densities, though this was a justification offered to allow the development.

“Had the error not been made, it would likely have resulted in the Board reaching a different decision (either refusal of the application, or possibly an approval of a lower height and density),” states the letter.

It notes that the decision “severely restricts the ability of the City to direct and plan for growth in the Downtown, contrary to the intent and policies of the Growth Plan.

Remedy sought

The city is asking for one of following outcomes:

  • Dismiss the appeal; or
  • Order a new hearing with a different panel; or
  • Issue a new order that reduces height and density and increase tower setback requirements; or
  • Other relief that may be sought if a new hearing with a new panel is granted

Read the letter of request: PL150274 – Request for Review of Decision (L1009631xC2C1F)

Excerpts from the letter are below, after My Take.

My Take:

I fully support the review and hope it will result in overturning the ruling; the decision represents overintensification of a small site on a narrow street and will set a negative precedent for future developments to request similar heights. We need to regain control of planning the downtown; requesting this review is one step in that direction.

This ruling has been used to justify rushing adoption of the Official Plan in general and the downtown polices in particular, arguing the OP is out of date on everything from rural policies, to employment lands at the GO stations to the downtown precinct plans. First, the decision applies only to this specific site, not the downtown and certainly not the city as a whole. Second, as noted in this letter, the city has “met its Growth Plan intensification targets” and is in conformity with the 2006 Growth Plan and arguably the 2017 plan.

There is no need to rush adoption of the new OP. We need to press pause on the OP and get it right, to avoid overintensification and ensure we don’t build vertical sprawl but instead build communities, with all the necessary amenities and infrastructure in place.

Toronto Star series on failing to plan for intensification

A recent Toronto Star series highlighted the danger of just planning for quantity of people versus quality of life. We need to learn from Toronto’s experience; what happens there eventually reaches us if we don’t plan properly.

Read more below:

The challenge of urban density: They can see the school from their balconies but their kids can’t attend (March 2, 2018)

How rampant development and poor planning left residents of this Etobicoke neighbourhood stuck in traffic (March 11, 2018


Excerpts from the city’s letter requesting review:

Pg. 4 “Manifest error”

“In the case at hand, it is a manifest error for the Board Decision to ignore the planning hierarchy established in the Official Plan and approve the highest density and heights in the Urban Growth Centre on a site planned for comparatively lower levels of density and height without providing justification or reason for doing so. The application must be judged within the contextual framework of the City’s Official Plan, which has long since implemented the direction of the Growth Plan. As a result of doing so, the Board Decision severely restricts the ability of the City to direct and plan for growth in the Downtown, contrary to the intent and policies of the Growth Plan. Had the error not been made, it would likely have resulted in the Board reaching a different decision (either refusal of the application, or possibly an approval of a lower height and density).

pg 5 City is meeting growth targets

The letter notes the Board refused to admit supplementary evidence related to the Urban Growth Centre.

“…by not admitting this important evidence, the Board failed to consider the fact that the City had in fact met its Growth Plan intensification targets, and while (as stated above) the targets are a minimum, this error is especially critical to the issue of what regard must be had to Council’s decision under Section 2.1 of the Planning Act. If it was important for the Board to consider the hierarchy for density established by the City in its Official Plan when the Board thought the City had not met its targets, it would have been even more important and more relevant had the Board known and considered that the City had in fact met its targets. In other words, by rejecting the Supplementary Affidavit the Board compounded its “have regard to” error on hierarchy.”

Pg 4 No evidence existing Official Plan permissions of 4-8 storeys would “adversly affect transit-supportive densities:

Paragraph 100 of the Board Decision states:

In implementing GGH 2017 policy that is set out above, the Board must consider whether a four-storey development as of right with only a possibility of growing to eight storeys, as set out in the current City OP designation for the Subject Site, would ‘adversely affect the achievement of transit-supportive densities’.

“To the extent that the Board Decision relies on this policy and these statements, there was (a)no evidence before the Board to conclude that an eight storey building ought to be prohibited as adversely affecting achievement of transit-supportive densities; and (b) there is no other element of the new 2017 Growth Plan cited for the statement that the City’s Official Plan passed in conformity with the 2006 Growth Plan has become obsolete immediately upon the approval of the 2017 Growth Plan, which occurred during the Board hearing.”

Pg. 3 Decision ignores planning hierarchy downtown

“In doing so, the Board Decision ignores entirely the comprehensive planning exercise that the City undertook in order to conform to the Growth Plan and the direction provided by City Council through the Official Plan as to how and where growth should occur in the Downtown. The City has provided for areas of higher and lower densities within the Urban Growth Centre, directing the greatest growth to the Wellington Square and Old Lakeshore areas. The Subject Lands are not within these areas to which the Official Plan directs the greatest levels of growth, and yet the Board Decision (without consideration of the planning hierarchy) approves the tallest
building in the City.

Pg. 2: Reasons for appeal

“The City is making this Review Request for the reasons set out below. Generally, the reasons are

(a) that the Board Decision incorrectly applies the Growth Plan in a manner that ignores the City’s comprehensive planning exercises in implementing the Growth Plan, including the planning hierarchy within the Urban Growth Centre;

(b) that the Board Decision does not properly have regard for the decisions of City Council and the material considered by City Council in making its decisions;

(c) that the Board improperly excluded evidence of the City; and

(d) that the Board Decision includes unreasonable findings with respect to tower separation.

As a result of the errors, the Board Decision has the effect of severely restricting the ability of the City to direct and plan for growth in the City’s Downtown, contrary to the intent and policies of the Growth Plan.”

Pg. 4 Board could have rejected appeal or approved smaller building

It was within the Board’s jurisdiction to find that the Subject Lands were suitable for higher levels of intensification than permitted as of right, without approving the ADI proposal in its entirety. The Board heard evidence, noted in the Board Decision at paragraph 109, from other planning (and urban design) witnesses that the Subject Lands could appropriately accommodate between 11 storeys (suggested by Ms. Bustamonte) to 16 storeys (suggested by Ms. Anderson as well as the City’s urban design witness, Mr. Freedman). The Board Decision suggests in paragraph 114 that it had no evidence to assess the differential in relative compatibility with and impacts on surrounding land uses between the proposed development and these alternative heights; the Board Decision ignores however that it had expert evidence before it that these lower heights would more appropriately consider the established planning hierarchy.


Written by Marianne Meed Ward

A Better Burlington began in 2006 after my neighbours said they felt left out of city decisions, learning about them only after they’d been made.

As journalist for 22 years, I thought “I can do something about that” and a website and newsletter were born. They’ve taken various forms and names over the years, but the intent remains: To let you know what’s happening at City Hall before decisions are made, so you can influence outcomes for A Better Burlington.

The best decisions are made when elected representatives tap the wisdom of our community members, and welcome many different perspectives.This site allows residents to comment and debate with each other; our Commenting Guidelines established in 2016 aim to keep debate respectful.

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  1. Why was city staff even suggesting limits could go higher than the 8 stories as per the OP? That also hinders council from establishing a coherent growth plan for the city. Why is a developer allowed to presell units PRIOR to actually having receiving an official approval for this project? As with any investment, be it on the stock market, mutual funds or real estate investing, there needs to be checks and balances in place to provide consumer protection for investors from unscrupulous behavior. Just ask FSCO and the OSC about those kinds of issues. There have been a number of cases in the GGH where prospective purchasers were left high and dry when a project fails.

    • Agree on both counts; the issue of “pre sales” of unapproved developments continues to be a problem. This is a matter of provincial jurisdiction, so we have to advocate for restrictions to our MPP (which I’ve done) so we can bring needed change to the city, and across the province.

  2. Marianne we are so lucky to have you involved in these proceedings that I believe would otherwise have gone through undetected by Burlington residents. It is interesting that the builder for this project has already sold units at a height that was previously unapproved – like they always knew they were going to win. Why aren’t more people listening to the residents who live in these areas? Everyone I speak with thinks the changes happening in the Downtown do not benefit the city at all. How are we going to remain “Canada’s Best Mid-Sized City” is we take away everything that makes this city unique?!

What's your take?

Developments, neighbourhood meetings, coming across the city: 2076/2086 Meadowbrook (March 8); 53-71 Plains Rd (Solid Gold) (March 20), 4880 Valera Rd. (March 21), 2086/2090 James (March 27)

Send a shout out to your favourite crossing guard during School Crossing Guard Awareness Week, March 19 to 23