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Councillors endorse staff refusal of 28-storey on Martha; ADI appeals to OMB

Rendering of proposed 28-storey building at Martha/Lakeshore
Rendering of proposed 28-storey building at Martha/Lakeshore

City Councillors have shown their support for the staff recommendation to refuse the proposed 28-storey building on Martha & Lakeshore as “overdevelopment” of the site. Councillors sitting as the Development & Infrastructure Committee of March 30 unanimously voted to endorse the recommendation in the staff report to refuse the application. That recommendation will go to City Council April 20 for final ratification. The report and a webcast of the meeting (2:35 mark) are available here:

Meanwhile, the applicant, ADI, has appealed their proposal to the Ontario Municipal Board. More on that below. At committee, I also moved that staff prepare and report back on a legal strategy. That was also approved.

Below you will find a summary of the proposal, and why staff recommended refusal. On many grounds, detailed in the report, the proposal fails to comply with provincial, regional and municipal policies. Staff noted that the proposal represents “overdevelopment,” and is not good planning.

Principles of Intensification

In their report, staff outlined some key principles around the appropriate means to achieve intensification. I highlight three of them here. These principles are applicable to all developments, and constitute something of a “Bible” of good intensification planning.

First, provincial policy notes that the province’s intensification strategy should “not be interpreted as  unrestricted or unconditional permission to develop.” In short, just because a proposal represents intensification doesn’t mean “anything goes.” Projects still must be compatible with existing neighbourhoods, among a number of other criteria. In fact, provincial policies note that local context is important, and not all policies “will be applicable to a specific site or development proposal.” (pg. 32)

Second, local Official Plans and Zoning Bylaws are the “most important vehicles for implementing” provincial planning policies. Thus, the development permissions set out in our Official Plan and Zoning Bylaw are appropriate guides to determine how development should occur on a site by site basis in Burlington. (pg. 32)

Third, we do not need over-intensification of this site to achieve our intensification goals and targets (pp.27-32). We can achieve those by following existing Official Plan and Zoning policies. Staff have calculated our existing and future development and note: “With developments in the approval pipeline considered, the Urban Growth Centre is approaching 74% of the minimum density target  for 2031.” (pg. 31)

My Take:

I support the staff recommendation to refuse this proposal. Staff have reviewed this development in the context of provincial, regional and municipal policies that govern intensification and development and concluded that the project does not conform to these policies,  is over-development and does not represent good planning. I agree.

Like residents, I would welcome appropriate redevelopment of this property as a mixed use commercial/residential project that respects the existing Official Plan and Zoning policies. “Intensification” doesn’t mean “anything goes.” Developments must still be compatible with local planning goals and policies.

This project isn’t. Among the many reasons staff recommended refusal of this application: lack of sufficient amenity area for residents moving in, not enough parking, lack of compatibility to the surrounding neighbourhood, no landscape buffer abutting the residential zone, reduced setbacks, an above ground parking structure that will emit light, noise, and emissions into the amenity areas of adjacent townhouses, and more than four times the height and density permitted.

Burlington can intensify downtown and meet all of our provincial obligations under Places to Grow with appropriate development that respects our own planning policies. These policies take into account growth requirements and have been approved by the province, as well as Halton Region. Residents would welcome appropriate redevelopment of this site that is in keeping with existing Official Plan and Zoning permissions.

I am disappointed that the developers have refused to work with staff and the community to bring a more appropriate proposal to redevelop this site in a manner that respects and conforms to provincial policies, regional policies and our existing Official Plan and Zoning Bylaw.

Summary of the proposal:

City staff have thoroughly reviewed the application from ADI Development Group Inc. for a 28-storey building at the foot of Martha/Lakeshore and are recommending that council refuse the application. The Development & Infrastructure Committee of council considered the application Mon. March 30, at 6:30pm, and unanimously approved a motion to endorse the staff recommendation to refuse the application. This recommendations will go to City Council Mon. April 20, 6:30pm for a final decision. Residents can register to speak at council here: Register as a Delegation

ADI applied to permit a mixed use development consisting of 226 residential apartment units and 348 m2 of ground floor commercial development at 374 Martha Street. The 40.6m wide, .136 ha site is currently a private parking lot. The application sought approval to:

  • increase the height of the building to 28 storeys from the 4 storey permission in the Zoning By-law and the 8 storey permission in the Official Plan
  • increase the density on the property to 12.5:1 from the 4.0:1 floor area ratio permitted in the Zoning By-law and the Official Plan
  • reduce the amount of parking to 218 spaces from the 283 spaces required in the Zoning By-law
  • reduce the amount of amenity area to 981 m2 from the 4,520 m2 required in the Zoning By-law
  • reduce the setbacks from Lakeshore and Martha Street for various floors of the proposed development from the requirements in the Zoning By-law
  • reduce the landscape buffer abutting a residential zone to 0 m from the 3 m required in the Zoning By-law

ADI has presented the application in the name of achieving the city’s intensification targets in the downtown Urban Growth Centre. In recommending refusal of the application, staff noted the city “can meet its targets without the proposed over-intensification of this site”, noting the proposal “does not provide an urban form that is complementary to existing developed areas and does not achieve an appropriate transition of built form to adjacent areas” among a number of other deficiencies. Staff further noted that the province’s intensification strategy “should not be interpreted as an unrestricted or unconditional permission” for development on specific sites, and that “local Official Plans are the vehicles to best achieve integrated and long-term planning.”

Staff met with the applicant and their consulting team on February 9, 2015 to discuss technical issues and planning concerns with the development proposal. At this meeting, ADI indicated they would not be amending their applications to address any of these concerns, except for removing the cantilevered portion of the building over the City’s property. At the time of writing the staff report, no revised drawings had been submitted to the City to address this issue.

Some 125 residents attended an Oct. 9 public  meeting on this project. Staff received 10 letters, 118 emails, 6 Neighbourhood comment sheets and 4 phone calls. My office received a similar amount of input. The overwhelming view from the community is that this project represents not only a dramatic departure from the existing city plans for the site, but a substantial overdevelopment of the property. Residents would welcome a development in keeping with the existing Official Plan and Zoning policies here.

You can read the staff report here: Report recommending refusal of the application for Official Plan and Zoning By-law amendments for 374 Martha Street. (PB-23-15)

Appeal to the Ontario Municipal Board

ADI has appealed their application for Official Plan and Zoning amendments to permit the 28-storey building to the Ontario Municipal Board on the grounds that the city failed to make a decision on the requested Official Plan and Zoning amendments within 180 days.

ADI filed a complete application Sept. 24, which started the 180-day clock. The clock ran out March 24, four business days before the scheduled committee meeting to make a recommendation on the application.

I have received a number of emails and calls from residents concerned that a decision wasn’t rendered in 180 days. Let me provide some context and general comments about the process.

The intent of the “clock” is to ensure that municipalities didn’t sit on development applications and refuse to make a recommendation. This is not a deadline. The goal of setting a clock is to encourage municipalities to process applications in a timely fashion. The number of days is a somewhat arbitrary figure chosen to represent the amount of time that an average Official Plan Amendment application should take. This application may not be average and the process we have in Burlington involving more extensive public consultation and rigorous report preparation protocols make meeting the time line challenging.

Our staff have been diligent in processing this application and I am proud of the work staff have done. This was a complex file and they worked quickly and professionally to consult with the public and bring a thorough report to council roughly within the appropriate time frame. The timeline is below:

  • September 25th – application deemed complete
  • October 9th –  neighbourhood meeting held
  • October 17th – the application is circulated to relevant authorities and departments for input
  • November 17th – comments are due
  • January 19th – statutory public meeting is held
  • February 4 – outstanding comments received from the Region
  • February 18th – required parking justification study received by applicant
  • February 23 – transportation comments received
  • March 2 – report due to Director of Planning
  • March 13 – Development & Infrastructure agenda for March 30 printed and published online for the public; agenda includes staff report on this proposal recommending refusal of the application
  • March 24 –  180 day deadline reached
  • March 26 –applicant appealed
  • March 30 – D & I meeting
  • April 20 – Council to vote on recommendations arising from the March 30 D&I meeting

It can be difficult to process significant applications within the 180 day time frame, because of the complexity of documents that need to be reviewed and the variety of technical input required from various agencies and departments.

A review of the some of the recent major Official Plan and Zoning amendments downtown and elsewhere in the city finds that many if not most required more than the 180 days to review and process. By and large our experience in Burlington is that developers have not exercised the option to go to the board just because the 180 days have elapsed, but have allowed staff to complete their review so long as they are confident their application is being processed. Clearly, staff was processing this application, with a recommendation at committee expected March 30, followed by a decision by council  April 20.

The council vote will still proceed, and will form part of the city’s submission to the board so they are aware of where city council stands on the staff recommendation and the proposal as a whole.

Participating in the OMB hearing

I have also received questions from residents about how and whether they can participate in OMB hearings and the answer is yes, with some restrictions, outlined below and provided with thanks by our planning staff. Further, hearing information about this application, including hearing dates, minutes and a decision, will be posted on the OMB website (it’s not there yet) E-Status, select “Burlington”

In order to make an appeal to the OMB, you must have either delegated at the public meeting or else submitted written comments about the application.  Here’s a paragraph from the Ministry of Municipal Affairs and Housing Citizen’s Guide

“It should be noted that failure to let your views be known, either by oral presentation at a public meeting or by written submission prior to council’s decision on the application for official plans, zoning by-laws, or plans of subdivision, means that you do not qualify to appeal such matters to the Ontario Municipal Board.” 2. Anyone can attend an OMB Hearing to watch.  All OMB Hearings are open to the public. 3. In order to participate in the Hearing, you must be either a “Party” or a “Participant”

These are paraphrased below as described in  the OMB Guide 

Party:

A party is a person, public body or corporation that is directly involved in a matter and has been named a party by the Board. In some cases, legislation provides criteria the Board must consider when dealing with a request for party status. For example, in some Planning Act appeals, parties could be a municipality, an approval authority, an applicant and/or a person appealing an application. There are certain requirements that must be met for party status to be granted. If you are unsure whether you are a party to a matter please contact the Board.

Participant:

A participant is a person, group or corporation that may choose to attend only part of the proceedings but makes a statement to the Board on all or some of the issues in the hearing. One does not need to have given oral or written submissions at council or with the committee of adjustment to be added as a participant.  A group of individuals that has decided to participate in an appeal together, such as a Ratepayers Association, must file its complaint under the name of one of the members of the group if the group is not incorporated. In making submissions to the Board, participants must swear to tell the truth and may be asked questions by the Board, other parties or their representatives.

Participants generally do not call witnesses or cross-examine witnesses called by others without the permission of the presiding Board Member(s). Participants cannot ask for costs or request a review of the decision. If you want to take part in a hearing as a Party or Participant, you must attend the pre-hearing. If you are going to be represented at the hearing, your representative should attend the pre-hearing. If you send someone else to speak for you, that person should have a letter giving your permission.

The Hearing:

An OMB Member presides at the pre-hearing. At the meeting, parties and participants for the hearing:

  • identify their roles and responsibilities
  • deal with preliminary issues and motions
  • discuss procedures for the hearing
  • clarify the questions and issues that will be dealt with at the hearing
  • discuss and possibly settle some issues
  • determine the length and date(s) of the hearing, and
  • set any additional pre-hearing or mediation dates.

Your Take:  What would you like to see on this site? Leave a comment here:

I was inspired to seek public office because I believe, like so many of you, “I can do something about that” on the issues we face. As councilor, my role is to take a stand on what’s best for residents and go to bat for it. Pushback is inevitable from those who don’t have the community’s interests at heart. I will stand with you and for you, to achieve the best interests of our city, without caving to unacceptable compromise in the name of consensus.

10 Comments

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  1. Completely agree with sentiments of Joan. OMB should not dictate developments in a city. Cities have elected representatives to make decisions on specific development matters. This is a liberal-democracy! OMB has an appropriate role in overseeing the general operations of cities (like getting London to adjust their ward zoning several years ago, which was absurd for far too long).

  2. Like most folks in Burlington I am dead set against this development which is contrary to our zoning plan etc.etc. and I do not want to live in “Miami Beach” landscape. Development is a necessary evil today but lets keep it under control
    Cy Mills.

  3. Now that we have destroyed our waterfront, we are concerned with over development … too little to late I am afraid

  4. Sure hope the days of the OMB are numbered, is there not a bill going floating in the legislature stating if the city refuses a development application then that development is finished?

  5. Hi Steve. Welcome to the site. The questions that the OMB have to answer in order to allow this development. is 1.How high is too high and 2. Is this development compatible with the surrounding neighborhood. The Province led all these intensification rules down to the municipalities to figure out. The Provincial Policy Statement. Does not have iron clad rules which in this case would have made things easy. Then add to this, that the planning staff deliberately under zoned all these high rise lands so that it could force developers to build the designs the city wanted, by having to get a rezoning and in the spirit of the Sopranos squeeze the developers for more money, if they wanted more air space. I don’t know how much an extra floor in height is going for these days. Remember too under zoning = under taxing which we have to make up for in our taxes. This intensification is not selling well and is not being explained and sold to the citizens of Burlington. When you add this all together the OMB becomes a logical non partisan forum where only the facts count. I’m not big into turning Burlington into little New York City. It appears the City did not love ADI as much as ADI loved being here. I don’t know much about about the high rise game. But I can tell you if the wrong decision is made by the City. It like a poker game may cost the taxpayers millions

  6. Steve – I will get an update for you on Maranatha; John, agree the decision is balanced, detailed and timely; David, I understand the concern and certainly I’ve heard from many residents, however the fact that the “clock ran out” in no way compromises the city’s position at the board. The board will make their determination based on the planning evidence put forward, and the council decision and resident comments will all be part of the city’s file submitted in support of the refusal; nothing has been lost here; Keith/Janet – agree, there have been several other projects that I consider overintensification also, and it has opened a bit of a Pandor’s box for egregious applications like this one.

  7. Pity the council have not put there foot down earlier because the City landscape has already been spoilt by buildings of various heights and shapes and are too close to each other….just stand on the Pier and look back at the City buildings.

  8. Hi Marianne, this is one time I totally disagree with the actions of both Council and the planning department for its handling of the timing of this file. I have been against the development from the beginning and it seems to be have been widely known this developer was going to the OMB if the 180 day time frame was not followed. The fact the final Council meeting is not scheduled until the 20th April, almost a month after the deadline date is inexcusable. I am concerned the City’s position has been compromised by failure to complete the process within the required time frame.

  9. Re, justification of proceeding to OMB: The developer complained that Burlington has not made a decision on this proposal within 180 days. It would appear that we have rendered a balanced, detailed and timely decision. It was not a decision that this developer wished, although it was the only decision that could be expected.

  10. Finally, an application for rezoning is declined! Wow, that’s a first… Well, maybe not a first, but it sure doesn’t seem to be happening much. But this was a no brainer.. I can’t see how the OMB will approved this project.. Moving on.. has anyone heard any news or developments regarding the Maranatha rezoning appeal to the OMB by local residents? It’s gone quiet and I recently saw a giant for sale sign on the site.. selling condos!? is that a done deal or is there still hope they will reduce the height of that project?

What's your take?