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What adjournment of OMB hearing on 374 Martha means, and My Take

Proposed building at Martha/Lakeshore being revised; goes to OMB Feb 2017
Proposed building at Martha/Lakeshore being revised; goes to OMB Feb 2017

Residents have asked a number of questions regarding the adjournment of the Ontario Municipal Board (OMB) hearing on 374 Martha Street, the site of a proposed 26-storey development. I attended both days of the hearing, which is open to the public, to listen, learn and gather information to answer resident questions. Below is a summary of what was discussed in public session as well as next steps, opportunities for public input and My Take.

The story so far:

Mon., March 14 was to be the start of a three week hearing into the merits of a proposed 26-storey building at 374 Martha Street (originally proposed at 28 storeys; later revised to 26 storeys). The current Official Plan and Zoning Bylaw call for a 4-storey building here, with provision to go to 8 storeys under strict circumstances. City staff recommended council refuse the applications for OP/Zoning amendments for 374 Martha Street, stating in the staff report the proposal “represents over-intensification on a site that is too small and does not provide adequate setbacks, buffering, amenity space or parking standards. ” (Page 13)

The report further states (Page 16) that “the City’s existing intensification strategy is well positioned to meet the minimum density target established in the Growth Plan without significant changes to the existing Official Plan policies and permissions. The City does not require the overdevelopment of one small property in the Urban Growth Centre in order to achieve the minimum density target.”

Key issues with the development, identified in the staff report, are height, density, compatibility, urban design, parking, amenity area, land assembly and traffic. Staff conclude the proposal “does not represent good planning” (Page 58).

The developer appealed to the OMB because council failed to make a decision within 180 days required by the Planning Act. Subsequently, council unanimously endorsed the staff refusal of 28 storeys; council and staff also took the position that the revised 26-storey proposal did not address concerns. Staff recommended, and council supported, that the OP/Zoning amendments required to facilitate the revised 26-storey proposal be opposed at the OMB.

What happened at the hearing:

image
Original layout, wrapping around the single-storey home at 380 Martha St. That parcel is now included in the development.

At the start of the hearing on March 14, the solicitor for the applicant advised the board that the developer had acquired the adjacent parcel at 380 Martha Street, and requested an adjournment of the hearing to provide time to submit a revised proposal that incorporates the new parcel. The original proposal had wrapped around the one-storey home at 380 Martha Street in an L shape.

The city of Burlington’s solicitor requested an opportunity to seek instructions from city council before the board made a decision on the adjournment request. City council met Tues., March 15, and voted unanimously (one member absent) not to oppose the adjournment.

The hearing reconvened Wed. March 16 to formally accept the adjournment and establish a timeline for next steps. A new two-week hearing on the merits of the revised proposal that incorporates 380 Martha Street is now scheduled to begin Tues. Feb. 21, 2017 (Mon. Feb. 20 is Family Day). The hearing is scheduled for 10 days, ending Mon. March 6. The schedule is available on the OMB website, links below.

Observations and Issues List:

My observation of the hearing is that discussion centred on how to ensure council input, public notice and participation, and whether the acquisition of 380 Martha Street would change the issues list and witness list that was previously submitted. You can read the original issues list on the OMB website (click on e-Decisions and enter the case number PL150274). The list is also available here as a .PDF: ADI issues list – pl150274-oct-14-2015-ord

There were 26 issues identified in the original issues list for the 28-storey proposal, dated Oct. 14, 2015, including:

  • Is an increase beyond “as of right” development standards required for the subject lands order for the City to achieve its Growth Plan conformity targets?
  • Does the proposed development represent an appropriate level of density and intensification for the subject lands and does the proposed density and intensification conform with or maintain the intent of the City’s Intensification Strategy as implemented through the City’s Official Plan?
  • Does the proposed Official Plan Amendment and Zoning By-law Amendment adhere to and conform to the vision of the City’s Downtown Design Guidelines?
  • Does the proposed development represent appropriate urban design in addressing matters including height, density, form, massing, bulk, scale, siting, setbacks and spacing having regard for the site and the character of the surrounding lands?
  • Does the proposed development provide for an appropriate transition in built form, height, massing, scale, siting and setbacks that is compatible with, and can be integrated with, the surrounding area, given the location and context of the subject lands?
  • Will the proposed above-grade parking garage result in unacceptable noise, dust, odour and vehicle emissions?
  • Would the proposed development result in excessive shadowing and wind impacts?
  • Does the proposed development provide sufficient amenity area to accommodate the future residents?
  • Does the proposed development provide for an appropriate streetscape?
  • Do the proposed height and/or density require a contribution pursuant to Section 37 of the Planning Act? If so, what are the nature and extent of appropriate facilities, services and matters to be secured through Section 37 of the Planning Act?
  • Does the proposed development represent good land use planning?

It is expected that a new issues list will be discussed at a two-day prehearing conference scheduled for Oct. 27 and Oct. 28, including whether any issues will drop off the list as a result of the revised proposal, or whether any issues will be added.

The chair of the board was also very interested in ensuring a recirculation to the public of the revised proposal, and in allowing any new parties that may emerge as a result of the recirculation to be added to the hearing. The board chair also wanted to give participants in the hearing an opportunity to revise their submissions to the board based on their review of the revised proposal.

A “Party” to a hearing is an individual or corporation permitted by the Board to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. Potential addition of parties to the hearing would be discussed at the pre-conference hearing. Parties would be required to give notice of their intention to seek party status and submit a statement of interest in the matter not later than 30 days prior to the pre-hearing date.

A “Participant” at a hearing is an individual, group or corporation who makes a statement to the Board on all or some of the issues in the hearing. They cannot ask for costs, or review of a decision as parties can. If a participant does not attend the hearing and only files a written statement, the Board will not give it the same attention or weight as submissions made orally. The reason is that parties cannot ask further questions of a person if they merely file material and do not attend.

A number of residents have registered to be participants in the hearing. They will have an opportunity to revise their written submissions after reviewing the revised proposal, once it becomes available.

Process Outline:

A draft process outline was publicly distributed at the hearing which shows roughly how the process will unfold between now and the Feb. 21 hearing:

  1. Informal discussions with staff: March-June 2016
  2. ADI formally amends application: End of June 2016
  3. Public notice of revised application: End of June 2016
  4. Agency circulation of revised application: End of June 2016
  5. Staff review of revised application: Upon receipt – September 2016
  6. Public meeting (Non-statutory): October 2016
  7. Council consideration of revised application: Late October, 2016
  8. Revised issues list due: After council meeting
  9. Revised witness list due: After council meeting
  10. Prehearing Conference: Oct. 26, 27 2016
  11. Expert Meetings Reports Due: 10 weeks before the hearing
  12. Witness statements due: 8 weeks before hearing
  13. Participant statements due: 4 weeks before hearing
  14. Reply statements due: 3 weeks before hearing
  15. Visual evidence due: 3 weeks before hearing
  16. Hearing: Scheduled for two weeks beginning Feb. 21, 2017 – March 6, 2017

Staff, public & council review of the revised application:

Though there will be an opportunity for city staff, the public and city council to review and comment on the revised application, the decision-maker on this proposed development remains the OMB. Staff’s position, and council’s position, along with public input, would be conveyed to the board during the two-week hearing beginning Feb. 21.

Regarding when this would come to council (Item 7 above), council is currently scheduled to meet Oct. 31. Items typically flow through a standing committee first then to council. Development applications flow through the Development & Infrastructure Committee. Assuming this process is followed, to allow for council consideration by late October, a staff report on the revised proposal would come first to the D&I meeting scheduled for Wed. Oct. 12. The agendas and staff reports for committee meetings are publicly posted on the city’s Agendas & Minutes page roughly 10 days prior to the committee meeting, so in this case on or about Friday, Sept. 30.

Committee and council meetings are open to the public. Residents must Register as a Delegation in advance to provide their input.

Order of proceedings at hearing:

The order of proceedings set down Oct. 14, 2015 for the March 2016 hearing was as follows. It gives an indication of what the order might be for the Feb. 2017 hearing:

  • Adi Development Group Inc.
  • Any Party in Support of the Appeal
  • City of Burlington
  • Any Party Opposed to the Appeal
  • Reply by Adi Development Group Inc.

Resources:

You can check in regularly for status updates on this case, or any other case in Burlington or elsewhere, by visiting the OMB web page, clicking e-Status and entering the name of the municipality. You can also search by case number, in this case:

PL150274

You can find the studies submitted by the applicant in support of the proposal, and the staff reports on the city’s webpage dedicated to this project here: ADI Developments – 374 Martha Street

My Take: I supported the adjournment to allow time for staff, council and the public to review and comment on the revised proposal. Until the revised proposal is available, it is not known how the acquisition of 380 Martha Street changes the application or addresses the concerns raised by city staff about the original 28-storey development proposal, or the revised 26-storey proposal.

Some residents have asked if the board could dismiss the hearing and require a new revised application to be submitted. As stated publicly by the board chair at Wednesday’s meeting, the challenge to jurisdiction has been abandoned. Thus, jurisdiction for decision-making on this proposal remains with the OMB. A revised submission will be fully reviewed by staff and council, and subject to community consultation. Our input will be considered by the board during the course of the hearing.

As this matter is before the board, I must walk a fine line of providing information and My Take, while respecting and maintaining confidential information. A certain amount of good faith will be required. There is much I will not be able to say. Be assured that my goal, as ever, is to work in the best interests of residents and the city on this matter, as on all issues that cross my desk.

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.

3 Comments

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  1. There is no explanation at all here of WHY you and Council say this is the “best decision”. This is what transparency is – explain what you are doing and why.

    Instead, we see that the bubble of secrecy in this matter knows no bounds. It is so elastic that it can be stretched and expanded to cover anything that might explain why this is the best decision.

    Another issue is the legalese mud that is offered as an explanation for why an alternative course of action and decision were not taken.

    Specifically, you write;
    Some residents have asked if the board could dismiss the hearing and require a new revised application to be submitted. As stated publicly by the board chair at Wednesday’s meeting, the challenge to jurisdiction has been abandoned. Thus, jurisdiction for decision-making on this proposal remains with the OMB.

    This is misleading mud, where clarity would be an expected answer to the resident question. In fact, you never answered the residents question you started with.

    The city could have asked the Board to dismiss the hearing on several grounds, and the Board could have agreed or disagreed, so we would have a public record. But you don’t state this fact, but avoid it with the legalese mud that follows and that covers the city tracks by implying that the Board is responsible.

    In fact, the city decision that you supported was itself the legal abandonment of the challenge to jurisdiction, and your wording just confounds the facts. The city could have regained jurisdiction with a successful appeal and argument, on several grounds, to the Board to dismiss the hearing, and require a new application to be submitted.

    Then, the jurisdiction would have been back in the city hands, but instead you decided to leave the decision-making jurisdiction in the OMB hands. The board Chair was just stating this outcome of the city decision, and the Chair herself did not make this decision, the city’s actions did. No effort was made to get control back in city hands.

    Then I see the magic bubble of secrecy bend and flex to cover a non-explanation of why this is the “best decision”. You made no effort at all to provide one.

    You ask for good faith, but this whole process has exhausted the well of good faith. Why would anyone have good faith in anything that ADI might say or do regarding this project after all that has happened?

    And now by this city decision ADI is actually rewarded for this.

    And the decision made on adjournment opens up a whole new stage that is riddled and rife with possible fiddling with how the project proposal is evaluated and judged for or against. And you gave up the authority to decide to the OMB with no effort to get it back.

    Good Faith? You can start to earn a little by providing an explanation of what the quote of yours I discussed means in facts, city actions, and tell us if you got the words from the legals?

    • I appreciate the anxiety this issue is causing among residents. You have asked for more details. I cannot provide them without violating solicitor-client privilege. I have said all that I can say. You will either choose to trust that I and council have the best interests of residents in mind, or you will not trust that.

What's your take?