Review complete on exceeding 180 days on Martha/Lakeshore application; no impact on OMB hearing

Our city manager and legal department recently conducted a review of the timeline for processing the application for a 28-storey building at Martha & Lakeshore, including analysing why the 180-day timeline elapsed and its impact, if any, on the Ontario Municipal Board hearing on the development. The application was appealed to the OMB for exceeding the 180 timeline. A hearing is scheduled for March 2016.Based on ongoing questions from some residents about these matters, I asked the city manager and our legal department to publicly release the results of that review. That information is below.The city manager's comments are in italics; the legal department information is in bold font. Links to their full documents are also below. My comments are separately noted in the My Take sections.My Take: There has been considerable discussion, questions, review and analysis of these matters, which I welcome as part of a health democracy. The additional review provides a deeper understanding of how Burlington processes development applications. Having undertaken further review, I continue to believe, as I did back in March, that taking the time necessary to properly process this development application and allow for full public engagement - even if that meant going beyond 180 days - was the best  course of action to protect the public interest and make a strong case at the OMB.  Going beyond the 180 days, and being appealed to the OMB for exceeding the timeline, does not negatively affect our case at the board. However, going to the board with an incomplete report and short circuiting public input, would in my view, negatively affect our case at the board, and potentially impact the ability of residents or others to fully participate in this application.As a result of following the process we did, we are in our strongest position possible at the OMB. As our city manager has said, "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."

Additional analysis, commentary and supporting documents

The concerns raised in the community primarily centered on three interrelated matters:

1. Why wasn't the staff report recommending refusal of the application ready to come to committee and council within 180 days?
2. Does the lapsing of the 180 day timeline negatively affect our case before the OMB?
3. Why wasn't a special council meeting called to vote on the proposal prior to the day the 180 days elapsing, or the schedule adjusted to use the March 23 pre-scheduled council meeting for a vote?

I've previously responded to the first two questions. Links to the original articles are below. I'll also address the third question, which has recently arisen in response to the timeline that has been provided.Did council vote on the Martha & Lakeshore proposal, the 180 day timeline, and other questions answered

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

The city manager and legal department review provide some additional detail. Links to the full text of their review documents are below, with summaries provided under each of the questions.Ridge - Proposed development at 374 Martha StreetPublic legal review of 180 days and OMB hearing

1. Why wasn't the staff report recommending refusal of the application ready to come to committee and council within 180 days?

From our city manager James Ridge: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 2^nd. 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.Chronology of Applications 520-07/14 and 505-02/14

Application is received	September 5, 2014
Notice sign posted	September 24, 2014
Public Circulation	September 24, 2014 (comments requested by October 24, 2014)
Application deemed complete (i.e. “the clock starts”)	September 25, 2014
Neighbourhood Meeting	October 9, 2014
Technical Circulation	October 17, 2014 (comments requested by November 19, 2014)
Comments from Departments and External Agencies are received	October 21, 2014 – March 11, 2015
Staff request a Parking Justification / Reduction Study from the applicant	November 28, 2014
Information Report is due to Manager	December 8, 2014
Information Report is due to Director	December 15, 2014
Information Report is due to GM	December 18, 2014
Information Report is due to Clerks	January 7, 2015
Statutory Public Meeting (D&I)	January 19, 2015
Council Meeting	January 26, 2015
Staff meet with applicants to discuss application	February 9, 2015
Applicant provides Parking Justification / Reduction Study	February 16, 2015
Recommendation Report is due to Manager	March 2, 2015
Recommendation Report is due to Director	March 9, 2015
Recommendation Report is due to GM	March 13, 2015
Recommendation Report is due to Clerks	March 18, 2015
Recommendation Report is publicly available online	March 23, 2015
“Day 180” since the application has been filed	March 24, 2015
Applicant provides notice to Clerks Dept that they are appealing the application	March 26, 2015
Recommendation Report Meeting (D&I)	March 30, 2015
Council Meeting	April 20, 2015

 My Take: I would add the following to the city manager's comments above:  The city provides 10 days over two weekends to review agendas and reports for upcoming committee meetings. Agendas are publicly available and posted online on a Friday, followed by a full week for review, prior to the start of committee week two Mondays later. Council members also receive their agendas and reports at the same time as they are publicly available.This time period allows council and the public sufficient opportunity to review the staff reports included in the agendas, and come prepared for discussion and decision-making. There is an additional period for review between the committee and council meeting to consider public input and any additional information presented at the committee meeting. On occasion, a vote at committee can change by the time it comes to council. In addition, any member of the public unable to attend the committee meeting can present feedback at the council meeting.In my view, these review periods and providing two opportunities for public input - at committee and at council - are critical on matters of significant public interest, and should not be compressed to meet a timeline.Calling a special, unscheduled committee or council meeting, as has been suggested, risks sacrificing public notice and input. I will speak to that more fully under question 3, below.So, in order to meet the 180 day timeframe under the regular committee and council schedule, let's back up the dates to show when a complete report was required:In order for council to vote on the application at its March 23 council meeting (one day before the 180 days elapsed), the staff report would have had to be considered at the March 2 Development & Infrastructure Committee, the staff report would have had to be available for council and the public 10 days earlier on February 20. The deadline for reports to meet this timeframe and allow sufficient time for senior staff and legal review was February 2.However, per the city manager's chronology above, on that date - and well beyond - staff were missing key reports. The applicant's parking justification report was not submitted till Feb. 16. Using the timeline above, that would leave just four days prior to the public posting deadline to deliver a complete report. This does not leave sufficient time for appropriate analysis of the new information, time to incorporate the analysis into the report, and time for senior legal and planning staff to review the information and still meet the public posting deadline.In addition, feedback from some external agencies did not come in until March 11, well after the March D&I committee date to meet the March 23 council meeting.In short, staff could not meet the 180 day time frame and still produce a complete report. A complete report is the more important priority.

2. Does the lapsing of the 180 day timeline negatively affect our case before the OMB?

From our city manager James Ridge: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.From our legal department: public legal briefing note is now availableThere is no practical impact of referral to the OMB after 180 days as opposed to the matter getting to the OMB via an appeal of a decision of council....In either instance, the OMB is tasked with making an independent determination based on the totality of the facts and evidence before it.Read the full briefing note here:Public legal review of 180 days and OMB hearingMy Take: I would add the following to the legal note and city manager's information: Council has always been of the understanding, confirmed by the recent legal review, that an appeal launched for exceeding the 180 days has no impact on our ability to make our case at the Ontario Municipal Board. This understanding provides further support in favour of taking the time to prepare a complete report and following our standard process for public review and input, even if that takes us beyond the 180 day time frame. Having a complete report with full public input strengthens our case at the OMB. Among the evidence the OMB will consider is our staff report recommending refusal of the application, community feedback which was largely opposed to the proposal, and council's position in support of the staff recommendation to refuse the application. By contrast, rushing a report to meet the 180 days and short circuiting public input would limit the evidence we submitted at the Board, not helping us to make our case.This would not be in the public interest.I've previously stated that the report on the Martha/Lakeshore development is one of the best and most comprehensive I've seen in terms of outlining intensification downtown. As the report makes clear, we don't need to exceed the Official Plan and zoning to meet intensification targets downtown. In addition,  intensification doesn't mean anything goes; the criteria of good planning must be met. The principles of good planning outlined in the report are applicable not just to this application, or future applications in the downtown, but anywhere in the city. The report clearly outlines a thoughtful, principle-based assessment of intensification applications wherever they appear. That's critical for our city. It was worth taking the time to prepare such a report, even if it goes beyond the 180 day timeframe.

3. Why wasn't a special council meeting called to vote on the proposal prior to the day the 180 days elapsing, or the schedule adjusted to use the March 23 pre-scheduled council meeting for a vote?

The suggestion has been made that a special council meeting should have been called to vote prior to the 180 days. Alternatively, the suggestion was made to use the March 23 council meeting to make a decision. However, this would have impacted public input on the project.As discussed in question 1, in order for council to vote on the application at its March 23 council meeting (one day before the 180 days elapsed), the staff report would have had to be considered at the March 2 Development & Infrastructure Committee, and the staff report would have had to be available for council and the public 10 days earlier on February 20. As noted above, not all materials relevant to the application were received until March 11.So, it was impossible to have a complete report prepared in time to meet the scheduled committee and council meetings within the 180 day time frame. So what about calling a special meeting? The period between the March 11 receipt of all documents and March 23 council was a mere 7 business days. Assuming a minimum of one week notice to schedule a new public meeting and allow time for council and the public to review the completed recommendation report, that would have left less than two days for staff to analyze the new information, complete the report and send it to senior staff for review and sign off. That's not nearly enough time to do it properly, not to mention that one week is hardly enough notice to provide residents (or council members) so they can rearrange schedules to attend a newly scheduled meeting.Further, calling a special committee or council meeting risks appropriate notice so those residents who want to attend can be properly notified about the change and rearrange their schedules to be there. The committee and council calendar is set in November for the following year. Residents can add these dates to their calendar to participate in the meetings they choose.Notice of unscheduled meetings can be conveyed on the city website or advertised in the newspaper (with enough advance warning) but there is no guarantee everyone who wants to participate in a particular agenda item will see these notifications. On items of significant public interest, in my view it is better to err on the side of public input than meeting a prescribed timeline.The suggestion has also been made that council might have used the existing March 23 meeting to vote, bypassing the report going to committee first. However, that would have eliminated one of the key opportunities for public input and council discussion. There is no guarantee residents who were available to attend the March 2 committee meeting would instead be available for the March 23 council meeting. My Take: In short, rushing a vote on this development application to meet the timeline, or calling a special committee or council meeting, would have compromised council review and public engagement on this file, and made it almost impossible to produce a complete report. This would not have been in the public interest. Practically speaking, these suggestions weren't feasible given need to properly analyse review materials that came in March 11, leaving limited time left to prepare the report and send it to senior legal and planning staff for review, then distribute the report to the public with enough time for residents to review and provide comment.Some additional background information from our city manager is below.From City Manager James Ridge:Application and approval processIn 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 ActThe 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 neighbourhoods. We are committed to practising  planned, deliberate growth with community input. Signage at the Martha Street siteThere 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: James.Ridge@burlington.ca.Thank you,James Ridge