Written by John Bkila at Hamilton Spectator

Does The Nautique, 26-story mixed-used condo proposal on Martha Street represent overintensification in Burlington's downtown, or is it an appropriate response to a provincially-mandated growth plan?

That's what the Ontario Municipal Board (OMB) is tasked with deciding after a 10-day hearing, that started back on Feb. 22, finally concluded this afternoon (Friday, July 21).

The case — which was presided over by the OMB's Susan de Aveller Schiller and held inside Room 247 at City Hall — was adjourned on March 6, after solicitors for the City of Burlington announced one of its witnesses would be unavailable to provide their testimony during the originally scheduled dates (Feb. 22-March 7).

Burlington city council voted to oppose a revised 26-storey condo by the Adi Development Group during a special meeting of council on Oct. 24, 2016.

Revisions to the original proposal, at 375 and 380 Martha St., included a reduction in height from 28 storeys to 26, but an increase in residential units from 226 to 240.

Adi CEO Tariq Adi has said his proposal is in keeping with the planning for the downtown, noting Burlington council has previously approved a 22-storey Bridgewater luxury hotel and condo on the waterfront, just south of Adi's land.

The City of Burlington has responded to that, stating it is a landmark site for the downtown.

Friday's hearing saw closing arguments from solicitors Denise Baker (representing Adi); Quinto Annibale (City of Burlington); Anna Toumanians (Carriage Gate Homes); and Samantha Lampert (Sun Life/Martha Terrace).

Baker made the point that Adi's development proposal was asking for intensification in an identified urban growth centre, not outside it or in any secondary centres or areas.

"I am not saying here anything goes. There still needs to be consideration of questions of compatibility, which … reflects the impact on the local community," she said.

"However, that assessment must occur within the context of the provincial policy for intensification, particularly … within the urban growth centre."

She argued the City of Burlington's Official Plan (OP) was "outdated" and it wouldn't meet the provincially-mandated target of 200 people/jobs per hectare within the urban growth centre, "based on the city's own numbers and no (city) witness disputed that."

Annibale rebutted if the city's numbers are just shy of the targets then the city's position would be an adjustment of the intensification strategy should occur through a comprehensive review and not on a site-by-site basis.

"The OP must conform with the growth plan and where there is a conflict with the OP and growth plan, provincial policy prevails," Baker noted, addressing what is stated in the policies of the province's plan.

"I submit to you in this instance, provincial policy must prevail as the policies of the OP will not meet the targets as established (by the province)."

However, Annibale argued the city's witnesses did testify over the course of the hearing that Burlington was on track to meet its growth targets by 2031.

Baker noted Adi's proposal shows good planning and would help achieve provincial growth targets.

"There is no sustainable or objective evidence on the impact on the surrounding properties from the proposed development site…," she said.

"This proposal is an appropriate response to provincial policy and will provide adequate housing and employment, access to public transit and minimize the dependency on vehicles … it will also apply an appropriate transition to nearby properties, particularly through the redesign of the podium."

Annibale said while the province's growth plan states intensification is needed, it's not "at all costs."

"The application must be considered within the contextual framework of the city's OP," he said, noting Adi's proposal is inconsistent with intensification plans.

"Because it's an overdevelopment, we get technical challenges with respect to wind impacts and parking …. These are challenges that could be entirely remedied by a reduction in size (height)."

Annibale then noted, while the city is asking the OMB to reject the proposal outright, if the application is approved it would increase the permitted zoning height and at that point, it should make Section 37 applicable.

Section 37 of the province's Planning Act allows municipalities to pass a bylaw authorizing increases in height and density of a development beyond what is permitted in the applicable zoning bylaw in exchange for "facilities, services or matters" set out in the bylaw.

The site of the development proposal at Martha Street is originally zoned for four storeys with an option to go to eight storeys with provisions of community benefits under Section 37.

Annibale said the best way to determine those benefits would be through negotiations between the parties involved and if an agreement can't be reached, they come back to the OMB at that time.

At the end of closing arguments, Schiller said she reserved her decision in the matter and all parties would get a copy of the written decision when it is issued.

However, she added, given the pressures on the OMB's schedule, she was unable to say when a decision can be expected, but it would come out as "reasonably as possible."

""It will come out as reasonably possible for a time to consider the substantial issues in this matter and to reach not simply a bottom line decision but an appropriate decision that clearly deals with the board's reasoning in the matter and makes it clear to everyone why the board has reached the decision it may reach," she added.