From: James Ridge, City Manager
Re: Proposed development at 374 Martha Street
DID MISSING THE 180 DAY THRESHOLD TRIGGER THE OMB APPEAL?
One of the key concerns for some involves the mistaken belief that an OMB appeal is automatically triggered when the 180 day threshold is missed. This is not the case. The applicant chooses whether to trigger an appeal after 180 days. In other circumstances where our review has gone past the 180 days, the great majority of applicants do not to appeal. Moreover, an applicant can choose to appeal before the 180 day threshold if they do not like a Council position on their application.
WHAT ARE THE IMPLICATIONS FOR THE CITY OF MISSING THE 180 DEADLINE?
There will be a separate briefing note on this issue released publicly very soon. However, simply stated, the city’s rights and ability to make our case to the OMB are not diminished after the 180 day period, nor are the appellant’s rights or abilities increased. Suggestions that the City’s appeal rights, or powers are somehow compromised by missing the 180 days are incorrect. Again, a more detailed explanation of the relevant case law will follow.
WHY DID WE MISS THE 180 DAY THRESHOLD?
Many applications reviewed by the City go past the 180 day threshold. The ADI application was not an isolated or rare event. The key reasons the City misses the 180 day threshold are:
1.The 180 day threshold is almost certainly not long enough given Burlington’s enhanced public consultation process. We have asked the Province for a longer timeframe, either for all municipalities, or municipalities like Burlington who have chosen to undertake greater consultation than required by the Planning Act.
2.Major revisions to a project, which are common, do not trigger a reset of the 180 day clock.
3.Perhaps most significantly, many of the external agencies that must provide comment before we can finalize a report, are delayed in getting their comments to the City. In every case there is a critical date at which point it becomes impossible to finalize a report in time to meet the 180 day threshold if external comment is still missing. These external bodies have very real and legitimate workload and priority-setting challenges of their own and often simply can’t turn around a response in a timeframe that would allow the City to meet the 180 day threshold.
Point 3 above was the key reason the ADI application went over 180 days. In order to have a report written and ready go to Committee and Council cycle for March (to have Council consider the recommendation within the 180 days), the report needed to be completed on February 2nd. But on that date we were missing two critical inputs:
A key parking study from the applicant
Comments from a key external partner (out of respect for the partner we would rather not name them).
I want to be clear we are not criticizing either the applicant or external partner for these delays. In each case there were legitimate and real workload and timing issues for them.
In short, as of Feb 2, there was no possible way to complete a report in time to meet the 180 days.
Hope this helps. And there is some additional general information below.
James Ridge
City Manager
Application and approval process
In 2014, Adi Developments submitted an application to the City of Burlington for a 28-storey condo to be developed on a .136 hectare parcel of land at 374 Martha Street. The zoning of the property allows four storeys in height with the potential to increase the height to eight storeys through a rezoning application.
City of Burlington staff in March 2015 presented to the city’s Development and Infrastructure Committee a thorough report that looks at all facets of the Martha Street proposed development. City staff recommended that City Council reject the application, for reasons that include height, parking issues and traffic impact. Council voted unanimously to support the staff recommendation.
Requirements of the Planning Act
The city has 180 days, under the Planning Act, to respond to this type of development application before a developer can appeal its application for amendments to the Ontario Municipal Board (OMB). However, the City of Burlington does not believe that the 180-day time frame set out in the Act is sufficient, and we have communicated this to the province.
Burlington undertakes additional community consultation steps over and above the consultation that is required by the Act--steps that are not in place in many other cities. As a result, the 180-day threshold is often hard to reach. This was one of those circumstances.
As sometimes happens with complex reports requiring a high level of engagement with the community and government partners, this report went to City Council for endorsement in April 2015, after the 180-day period.
It should be emphasized that while exceeding the 180-day review timeframe was the ground for the OMB appeal in this case, Adi Developments still had the right to appeal the city’s decision if they disagreed with the City Council decision had it been made within the statutory time frame. I would add that in the great majority of other planning applications where the city’s review process has taken more than 180 days, applicants have chosen not to appeal to the OMB. The 180 threshold does not automatically trigger and OMB appeal, that decision is entirely up to the applicant. Even if the City Council decision happens after the 180 days, the city retains full right to make its case to the OMB.
Appeal to the OMB
A pre-hearing is scheduled for December 2015, and a full hearing is scheduled for March 2016. The city will continue to vigorously oppose the proposed development. The city has said publicly that an application for 28 storeys is well beyond what is appropriate in this location, for both height and density.
The city will provide all the information necessary to ensure we balance the development of our city with the preservation of our neighbhourhoods. We are committed to practicing planned, deliberate growth with community input.
Signage at the Martha Street site
There have also been complaints about the signage at the 374 Martha Street site. The city has taken the appropriate enforcement actions to ensure that Adi Developments complies with the city’s signage bylaw, and removed the signage.
If you would like more information about the proposed Martha Street development, please visit this link for more information about the proposed development, reach me by phone at 905-335-7600, ext. 7608 or respond to me by email.
Thank you,
James Ridge