HomeMy WebLinkAboutPSD-006-07
Cl~-ilJglon
REPORT
PLANNING SERVICES
Meeting:
Date:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Monday, January 8, 2007 r:z~pp. - 01/3 /() 7
PSD-006-07 File #: COPA 2005-005, COPA 2005-006 By-law #:
ZBA 2005-021
Report #:
Subject:
COMMERCIAL POLICY REVIEW AND
BOWMANVILLE WEST MAIN CENTRAL AREA SECONDARY PLAN REVIEW
AMENDMENTS 43 AND 44 TO THE CLARINGTON OFFICIAL PLAN AND
RELATED AMENDMENTS TO THE ZONING BY-LAW
RECOMMENDATIONS:
It is respectfully recommended to Council the following:
1. That Report PSD-006-07 be received.
~C-
Id a. Crome, M.C.I.P., R.P.P.
Director of Planning Services
Reviewed by:
cJ--~~~
,..
Franklin Wu,
Chief Administrative Officer
CP*DJC*sn
19 December 2006
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830
REPORT NO.: PSD-006-07 PAGE 2
1.0 BACKGROUND
1.1 This report provides an update for Committee and Council's benefit on the appeals
related to the Commercial Policy Review and major commercial applications that were
dealt with by Council in March 2006.
1.2 At a Special Meeting of Council on March 1, 2006, Official Plan Amendments (OPA) 43
and 44, together with Zoning By-law Amendments 2006-046 and 2006-047 were
approved. These amendments were the culmination of a detailed commercial policy
review, and also provided recommendations on five (5) commercial proposals by four
different property owners that were filed prior to, or during, the commercial policy
review. Three of the applications were for land in or adjacent to the West Bowmanville
Main Central Area.
1.3 The private applications were as follows:
i) West Diamond & Players site on the northwest corner of Highway 2 and Green
Road:
2
?
The application evolved to include a total of 35,250 m of commercial floor
222
area consisting of a 14,030 m Loblaws, a 16,525 m Wal-Mart, and 4,000 m
of ancillary retail floor space.
ii) Halloway Holdings Limited on the north side of Highway 2 between Green Road
and Clarington Boulevard:
2
?
The application evolved to propose a total of 17447 mof retail floor
22
consisting of a 9165 m Home Depot store, 5040 m of large format retail floor
2
space, and 3242 m of ancillary retail space. .
iii) Loblaws filed two (2) separate applications before and during the Commercial
Policy Review process:
2
a) Expansion of the Loblaws Store in Clarington Centre to add 37,700 ft.
This application will not be pursued if the West Diamond & Players
applications are successful.
b) Re-tenanting of former Loblaws space in Clarington Centre if Loblaws
relocates through revisions to the zoning to delete the requirement for a
Food Store in Clarington Centre.
iv) AYT on the northwest corner of Bennett Road and the Baseline Road road
allowance
2 2
?
The application evolved to propose a 54,215 m(583,580 ft) big box centre
on a 21.85 ha site at the northwest corner of Highway 401 and Bennett Road.
The development was to comprise a hotel, a warehouse merchandise club, a
2
home improvement store, 9 large format stores (20,000 fteach) and 7
restaurants.
REPORT NO.: PSD-006-07 PAGE 3
1.4 OPA 43 implemented the recommendations of the Commercial Policy Review by
amending portions of the Clarington Official Plan policies and schedules. OPA 44 also
implemented the recommendations of the Commercial Policy Review by amending the
West Bowmanville Main Central Area Secondary Plan policies and schedules. Zoning
By-law Amendments 2006-046 and 2006-047 further implemented the
recommendations of the commercial policy review as well as the policies of OPA 's 43
and 44.
2.0 APPEALS
2.1 Following Council adoption of the two (2) OPA's and two (2) Zoning By-law
Amendments, appeals were received as follows:
?
Zellers - Appeal to OPA 43, OPA 44, and Zoning By-Law 2006-047
?
Historic Downtown Bowmanville BIA - Appeal to OPA 43, OPA 44 , and Zoning By-
Law 2006-047
?
Loblaws - Appeal to Zoning By-Law 2006-047
?
AYT - Appeal to OPA 43
2.2 Zellers and BIA Joint Appeal
Motions to dismiss the appeals filed by Zellers and the BIA were submitted by the
Municipality of Clarington and West Diamond Players Inc. Under the Planning Act, the
Board has the authority to dismiss appeals if the reasons set out in the notice of appeal
do not disclose any apparent land use planning grounds. There is a growing body of
decisions that outline the basis on which the OMB makes such a determination. One of
these grounds is that if the appeal is not an authentic planning ground but only made for
the purpose of delay or to prevent a competitor from entry into the market place.
On July 27-29th, the OMB heard the motion by the Municipality and Metrus
Developments to dismiss the appeals by Zeller’s and the Bowmanville BIA. The Board
in their decision on this matter, released on August 23rd, 2006, granted the Municipality
and Metrus Developments motion and dismissed the joint appeals without a hearing. A
copy of the decision is contained in Attachment 1
One of the reasons advanced by Zellers and the Bowmanville BIA in their argument was
that this case was a complex issue involving a change in “planning philosophy”. The
Board was not persuaded that the complexity of the case would require a full hearing,
nor were they convinced that it was a change in “planning philosophy”. Rather in the
OMB ruling they cited the Commercial Policy Review as connected with the existing
planning context and that the process and results were objective, comprehensive and
rational. And further, “the Commercial Policy Review exercise is a recalibration of the
floor space limits for the short term to account for the changes that have occurred over
the last 12 years”.
REPORT NO.: PSD-006-07 PAGE 4
2.3 Loblaws Appeal
In late October of 2006 Halloway Holdings began drafting a motion to have the appeal
of Zoning By-law 2006-047 by Loblaws dismissed. Through the initiation of this motion,
discussion between representatives of Loblaws, Halloway Holdings, and the
Municipality allowed the appeal by Loblaws to be scoped to specific issues. The
scoped appeal now relates to the total floor area permission on the Clarington Centre
lands, including the existing Loblaws property; and the permission for a supermarket on
the Halloway lands, located on northeast corner of Green Road and Highway 2. A
motion to dismiss the scoped appeal is expected to be heard by the OMB early in 2007.
On December 4th, the OMB approved Zoning By-law 2006-047, except as it applies to
the westerly portion of the Halloway Holdings lands as discussed above. A copy of the
Board Order is contained in Attachment 2. This effectively allows development to
proceed on the Home Depot, Wal-mart and Real Canadian Superstore projects.
2.4 AYT Corporation Appeal
During the discussion to scope the appeal by Loblaws, and the resulting motion to
dismiss by Halloway Holdings, the Municipality's solicitor had discussions with
representatives of AYT to further scope their appeal of OPA 43. This second
negotiation was successful in having AYT withdraw their appeal from Official Plan
Amendment 43 except in respect of four specific policies relating to the AYT lands
located on either side of Bennett Road, north of the 401.
On December 5, the OMB issued another order, which effectively approved Official Plan
Amendment 43 and 44 to the Clarington Official Plan (Attachment 3).
i) With respect to OPA 43, the OMB order that the appeal by AYT Corporation be
scoped to 4 policies but only as they apply to the AYT lands located on both
sides of Bennett Road, north of Highway 401. In all other respects, the
Amendment adopted by Council on March 1, 2006 is approved.
ii) OPA 44 is also approved retroactively to March 1, 2006 since the appeals have
been dismissed or scoped to only OPA 43 referenced above.
3.0 CONCLUSION
3.1 Although there remain two outstanding appeals, the majority of the new policies coming
out of the Commercial Policy Review are in place. In combination the Zoning By-law
Amendments and the scoping of the appeals, the Municipality can proceed to process
the site plan applications for in the West Bowmanville Town Centre as they are
submitted. Only the Home Depot and Wal-mart site plans are currently being reviewed.
Staff will continue to keep Council abreast of further decisions with respect to the
outstanding appeals.
REPORT NO.: PSD-006-07 PAGE 5
Attachments:
Attachment 1 - OMB Decision dated August 23, 2006
Attachment 2 - OMB Decision dated December 4, 2006
Attachment 3 - OMB Decision dated December 5, 2006
88/22/2005 15:31
4158547404
DEHNIS HEFFERON LAW
Cl.~.r:;!:" (l 'Ji I 11
Attachment 1
To Report PSD-006-07
~
Issue OAT!!:
Aug. 22. 2006
DECISION/OROER NO:
2383
PL031180
PL040131
PL040041
PL060287
Ontario
Ontario Municipal Board
Commission des affaires munlclpalss de I'Ontarlo .
West Diamond Properties Inc. and Players Business Park ltd. have appealed to the Ontario
Municipal Board under: subsection 34(11) of the Plann;ng Act, R.S.O. 1990, o. P.13, as
amended, from Counoil's refusal or neglect to enact a proposed amendment to Zoning By-law
84-63 of the Municipality of Clarington to rezone lands respecting Part of Lot 17, Concession 1
and 2 to permit the development a commeroial centre including a diS(;Ount department store and
a supermarket
OMB File No: 2030175 (PL0311SO)
West Diamond Properties Inc. and Players Business Park Ltd. have appealed to the Ontario
Municipal130ard under subsection 22(7) of the Planning Act, R.S.O. 1990. c. P.13, as amended,
from Council's refusal or neglect to enact a proposed amendment to the Official Plan for the
Municipality of Ciarington to redesignate land on Part of Lot 17. Concession 1 and 2 (0 permit
th@ development a commereial centre including a discount department store end a supermarket
OMB File No: 0030411 (PL0311S0)
Hanaway Holdings I.imited has appealed to the Ontario Municipal Board under subsection
34(11) of the Planning Act, R.S.O. 1990, c. P .13, as amended, from Council's refusal or n~lec:t
to enact a proposed amendment to Zoning By-law 84-133 of the MunICipality of Clarington to
rezone lands . respecting Part of Lot 16, Concession 1 to permit the development of a
commerdal plaza
OMS File No: Z040023 (PL040131)
Halloway HOldings I.imited has appealed to the Ontario Municipal Board under subsection 22(7)
of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to
enact a proposed amendment to the Official Plan for the Municipality of C1aringtcn to
redesignate land on Part of Lot 16, ConcessIon 1 to permit the development of a commercial
plaza
OMf3 File No: 0040032 (PL040131)
Loblaw PropertIes Limited has appealed to the Ontario MunlclpaJ Board under subsection
34(11) of the Pfenning Act. RS.O. 1990, c. P.13, as amended, from Council's refusal or neglect
to enact a proposed amendment to Zoning By-law 84-63 of the Municipality of Clarington to
rezone lands respecting Part of Lot 16, Concession 1, municipallY known as 2375 Highway '''D.
2, by removing the requirement for e supennarket
OMS File No: Z040005 (PL040041)
Zellers Inc. and Historic Downtown Bowmanvilla BIA have appealed to the Ontario Municipal
Board under subsection 17(24) of the Planning Act. R.S.O. 1990, c. P. 13, as amended, from
the decision of th~ Municipality of Clarington to approve Proposed Amendment No. 43 to the
Official Plan for tha Municipality of Clarington for the purpose Of amending the Clarington Official
Plan. the Bowmanville East Main Central Area Secondary Pliiin, the Courtics Sub-Central Area
Secondary Plan, the Newcastle Village Main Central Area Secondary Plan end the South-West
10'd
p0pL~9891p6 01 StL0 L28 9It
a~~OH Nnw lNO ~~ 8C:Pl 9002 22 9n~
08/22/2005 15:31
4158547404
DENNIS HEFFERON LAW
PAGE 1?J3/ HI
~
-2-
PL031180 et al
Courtice Secondary Plan In order to implement the recommendations of the Commercial poncy
Review and the Bowmanville West MaIn Central Area Secondary Plan Review
OMB File No. 0060059 (PL060287)
Zellers Inc. and Historic Downtown BowmanvllJe BtA have appealed to the Ontario Munlclpllll
Board under subsection 17(24) of the PlannIng Act, R.S.O. 1990, c. P. 13, as amended, from a
decision of the Municipality of Clarlngton to approve Proposed Amendment No. 44 to the Official
Plan for the Municipality of Clarlngton for the purpose of Implementing the recommendetions of
the Commercial POlicy Review and the Bowmanville West Main Central Area Secondary Plan
Review Including the renaming of this Main Central Area to the Bowmanville West Town Centre,
expanding the boundaries of the West Town Centre and designating additional lands for
commercial development
OMS File No. 0060060 (PL060287)
Loblaw Properties Limited. Zellers Inc. and Historic Downtown Bowmanville BIA have appealed
to the Ontario Municipal Board under subsection 34(19) ofthe Planning Act, R.S.O. 1990, c. P.
13. as amended, against Zoning By-law 2006-047 of the Municipality of Clarington '
OMS File No. R060067 (PLOEl0287)
The Municipality of Clar;nQton, West Diamond Properties Inc., Players Business Parle Umited
~nd Halloway Holdings Limited has brought a motion before the Ontario Municipal Board under
subsectIons 17(45) and 34(25) of the Plann;ng Act, R.S.O. 1990. c. P. 13, 86 amended, to
dismiss the appeals by Zellers Inc. and Historic Downtown Bowmanvilla BIA
OMS File Nos. 0060059, 0060080. R060067 (Pl060287)
APPEARANCES:
Parties
Couns~1
R. Houser
R.Howe
West Diamond Properties Inc.
Zellers Inc.
HIstoric Downtown Bowanville BfA
S. B. Stein
B. 81ain (student-at-Iaw)
J. Hart
Halloway Holdings Limited
Municipality t)f Clarington
loblaws LImited
D. C. Hefferon
P. Foran
20'd
v0~Lv988Iv8 01 SIL0 L2C SIp
a~~oa Nnw iNO ~~ 8C:vI 90~2 22 9n~
08/22/2005 15:31
4158547404
DENNIS HEFFERON LAW
PAGE 134/113
..3~
PL031180 et al
DECISION OF THE BOARD ON A MOTION TO DISMISS DELIVERED BY S.W.
LEE AND O~DER OF THE BOARD
These Motions to dismiss the appeal9 wIthout a hearing relate to OPA 43, 44 and
By..law 2006-047 of the Municipality of Clarlngton. These instruments have been duly
enacted by the Munieipality after a plannIng and commercial policy reviaw process. The
effecta af these planning Instruments, if approved. will be to allow. subject to time
restrictions; the development of the West Diamond Centre. to be anchored by Wal.Mart
and Loblaws and the the development of the Holloway's Centre. to be anchored by
Home Depot in the West Town Centre of the Municipality of Clarington.
The joint appellants are Zellers and the Bowmanville 81A. The former is an owner
of a department store in the West Town Centre since 1991. The latter represents the
merchants of the historic downtown Bowmanville B IA.
. These motions were brought on the baeis that these appeals were submitted for
competitive reasons. that the ostensible reasons set out in the letter of appeal cannot be
considered as valid under a closer analY$is and do not warrant a hearing. The
applicants brought forth a wealth of affidavit evidence and materials to demonstrate that
the rigorous planning and the commercial policy reviews undertaken by the municipality
have not been impeaohed, that the allegation of impacts of planned functions are
without credible explanations and that the allegation that the market work done by the
municipality Is flawed and lacks authenticity.
On the other hand. Mr. Stein suggested that the proposed change Is so
fundamental. ttie scale so massive and the effect so far-reaching that the Board ought
to be cautious. Specifically, he harkens back to the earner decision of the Board made
In 1997, which, in hIs view, maps out the future and balance of commercial growth in the
municipality. These planning instruments, in his view, will inexorably change the
approach adopted by the decision and the best way to test out these planning
propo~itlon$ will be having a hearing.
The main thesIs of Mr. Stein is that the motions to dismiss should not be granted
readily. In his view) apart from the frivolous, vexatious appeals and those others
800d
v0~L~989t~S 01 SIL0 L28 SIP
a~~08 Nnw lNO ~~ 88:vt 9002 22 8n~
08/22/2005 15:31
4158547404
DENNIS HEFFERON LAW
PAGE 135/113
';
-4..
PL031180 et at
launchecJ on bad faith and for purposes af delay, the Board should reserve those
remedies only for those, in his words IIhopeless cases., It is his opinion that the
wardings in Section 17(45)(a) and Section 34(25)(a) of the Planning Act should be read
against the backdrop where each appeal Is vested with the mandatory rights of being
heard .
These sections of the PlannIng Act have been tha subject of many such motions.
Section 17(45)(a)
Dismissal without hearipa
(45) Despite the statutory Powers Procedure Act and subsection (44), the
Municipal Board may dismiss all or part of an appeal without holding a
heanng on its own motion or en the motion of any party if,
(a) it is of the opinion that,
(i) the reasons set out in the notice of appeal do not disclose any
apparent land use planning ground upon which the plan or
part of the plan that is the subject of the appeal could be
approved or refused by the Board,
(ii) the appeal is not made in good faith or is frivolous or
vaxatiou$, or
(Iii) the appeal is made only for the purpose of delay;
Section 34(25)(a)
Dismissal without hearl(lQ
(25) Despite the Statutory Powers Procedure Act and subsections (11) and (24).
the Municipal Bol!lrd may dismIss all or part of an appeal without holding a
heating, on it!! own motion or on the motion of any party, if,
(a) it is of the opinion that,
(i) the reasons set out In the notice of appeal do not disclose any
apparent land use planning ground upon which the Board
could allow all or part of the appeal,
(ii) the appeal is not made in good faith or is frivolour; or
vexatious_ or
170'd
v0vLv9891vS 01 9tL0 L28 9t~
a~~oe NnW 1NO ~~ 68:pt 9002 22 ~n~
08/22/2005 15:31
4158547404
DENNIS HEFFERON LAW
PAGE 05/10
7
-5-
PLoa1180 et al
(Iii) the appeal is made only for the purpose of delay;
Mr. Stein is not mistaKen In his emphasis that the mandatory right to a hearing
should not be readily glossed over unless the applicant for such dismissals has satisfied
the requisite tests pursuant to the relevant provisions. However, the Board must
decipher, in a motion such as this, whether apparent planning reasons worthy of
adjudication exist or not. Mr. Stein suggested that since the only issues are related to
timing and size, and since the. materials before this panel appear to be so complex, the
Board will be best advised to forego ruling in favour of this motion and glO straight to
address the matters of si~e end timing at a pre-hearing conference, It Is a skillful
argument most eloquently enunciated.
This panel of the Board h$s not heard any convincing reasons why the Board
should at this stage.ln the face of this motion, stop short to determine whether the
iesues stated in a nolios of appeal are worthY of adjudication. A seemingly complex
case should not be a bar to the Board to inquire into this question or allow this panel or
the Board to shirk the task in front of it. In fact, there is no impediment, legal or
utilitarian, for the Board to further postpone the Inquiry.
Since East Beach Community Association v, Toronto (1996~ OMBD No. 1890.
there has been a line of cases involving commercial competition where the Board
addresses the questions Involving the wcrthiness of hearings. In Re Norfolk (County)
Zrlning By-law 26..Z2005 April 21, 2006 Decision NO. 1177, the Board has this to say:
In a line of cases involving eommercial competitIon. the Board has also made it
abundantly clear that it would not adjudicate on matters that are clearly made for the
purpose of delay or to prevent a competitor from entry into the market place 1. In
those cases, the Board has consistently acknowledged and affirmed our traditional
roles and funcl:lons as charged by the Act: that we are not to Intervene into the
market share concerns unless there is a planned function at stake, that we would
not confuse the mantras for planning Impact with the genuine authentic planning
reasons and that we would not hesitate to puncture the faQade and the disguises
where they are recogniz:ed. In Short, the Board wants to render to Caesar What
belongs to Caesar by Insisting that our hearings must not be hijacked for the
purpose of business competition,
! ;t~ Lon4on (Ci~) Official Plan Amendment 332 r200.51 O_M.m No.3 90
Re City of:Brampron Officla1 Plan Amendment~QlJ 1 ~9~) 30 O.M.B.R.l
;Re MissisSI~eB (~itv\ 711!MC' By-law 1500 rI9931 O,M.B-D. No. ~~4
&~CF Properties In.c. v. NtDl!lan (City) (19961 C.M.B.D. No. 1673
;0'd
~0~,pge81~S Ol 9tL0 L28 9t~
a~~os NnW lNO ~~ 68:pl 9002 22 9n~
08/22/2005 15:31
4158547404
DENNIS HEFFERON LAW
PAGE 07/10
;;
-6~
PL031180 at 81
Co~~w(.
In Zeller L d. v. Ro a Ce tres Ltd. 200 0 J. No 3 9 where the
Divisional Court denied the application for leave to appeal the Board's decision to
dismiss the appeals, the court has this to say concerning the legality and utility of such a
motion~
The pivotal point in this, the central aspect of the debate, goes to the reason why the
statute provides grounds upon which the OMB may dismiss an appeal before
resources are invested in a full hearing. Through a motion to dismiss, members of
the OMS, people who have the background and expertise In planning matters are
given the power to Ell"lsure that steps open to participants in the planning process are
employed for legitimate purposes. Declsions to participate in this process and
partlcularly to launch an appA31 are serlou!l and must be pursued diligenUy, The
legislation and related jurisprudence mal<e it clear that It Is not sufficient that
appellants raise land use Issued in the Notice of Appeal. Such issues have to be
worthy of adjudication and the responsibility falls on the shoulders of the appellants
to demonstrate through their conduct In pursuing the appeal, including their
gathering of evidence to make their ease, that the Issues r<<iS9d in their Notice of
Appeal justifies a hearing.
Once again, whether a Notice of Appeal raises a planning issue that deserlJes a
hearing goes to the root of the jurisdiotion of the OMB and the Board's decision on
this point is entitled to consfderablA deference. In all of the circumstances there is
no good reason to doubt the correctness of the OMS's decision with respect to this
Issue.
let us examine the grounds set out in the letter of appeal. The letter of appeal
drafted by Mr. Stein, has been crafted most artfully in brushes and strokes befitting a
seasoned and a highly skilled advocate. It appears to raise many issues that. on the
surface, seem to give rise to planning concerns. However, upon a proper reView, this
panel agrees with the applicants of these motions that with respect to each and every
one of the issues, there is a lack of substance and authenticity without which an
adjudicative process cannot be justified. There is no dispute that the craftsmanship l,s
laudable, but behInd the artful fac;ade, there are questionable' assumptions. erroneous
leaps of logic as well as artful dodges that we can unmistakably discern as constituting
the inevitable conclusion that these appeals should remain outside the domain of
adjudication.
Firstly, it is plain that the commercial policy review undertaken by the municipality
did not come from a vacuum. It was activated by the requirements of Section 10.42 of
the Clarlngton OffIcial Plan and 4.2 of the Secondary Plan. That itself is a partial answer
913'd
~0~L~9891v6 Ol SlL0 ~2C SIp
a~~08 Nnw lNO ~~ S8:pl S002 22 9n~
138/22/213135 15:31
4158547404
DENNIS HEFFERON LAW
PAGE 08/113
t'
-7-
PL031180 at al
to the allegation that these planning proposals represent a departure from the planning
policy. The commercial policy review (CPR) is in fact connected with the existing
plannIng fabrics. The evidence Is abundantly clear that the process and results are
objective, comprehensive and rational. The scope of the study by the expert team, the
time the study took, the comprehensiveness of the public consultation, the number of
reports submitted, the refinements of the contexts, issues, retail and impact analysis,
the number of revisions 19ading to the final reports and the enactments of the requisite
instruments fonn collectively such indications. The assertion that this effort represents
a change of philosophy of planning is not borne out by any of the affidavit materials
presented to this panel or the cross-examinations of the affidavit evidence, In fact, the
CPR exercise is but a recalibration of the floor space limits for the short term to account
for the changes that have occurred over the last 12 years. The approach undertaken Is
squarely consistent with the existIng policy. The results do not interfere with the
conceptual frameworks of the Bowmanville West Town Centre and the Bowmanville
East Town Centre, both of which are separate planning areas that are being preserved
and enhanced. The proposed planning instruments would fulfil the objectives for the
Bowmanville West Town Centre and it is undisputed that the gross leasable floor space
assigned will not exceed the limit set by the Durham Regional OfficIal Plan.
secondly. the assertion that the proposals wlll have an Impact for the planned
functions has not been substentiated in any way that inspire concerns. In fact, the
objectors to this joint motion have not articulated whioh and the extent to which the
particular planning areas include and how it is the planned objectives may be thrown
into disarray. It seems that both the Clarington Centre and the downtown portion of the
Bowmanvllle's East Town Centre ere included in the allegations. However, the
Clarington Centre itself does not enjoy a monopoly status in the exesting planning
instruments to warrant a sheltered protection from the onslaught of competition. The
proposed documents will not detract the assigned function of the commercial node
identified as the West Town Centre of which Clarington Centre is but a part. Zellers may
or may not suffer from a substantial loss of sales as a result of the entry of these new
stores. However, this is a market share matter and not a planning ct>ncem. For the
downtown, it is part of the East Town Centre for which the downtown Is 4 out of the 12
blocks. There has not been ~ny preliminary valuation about the financial status of these
existing stores or the likelihood of their closure or if closure were to ensue, the
L0'd
p0pLv989t~S 01 SlL0 L28 9t~
a~~og Nnw lNO ~~ 6~:vl 9002 22 9n~
~8/22/2B~5 15:31
41585474134
DENNIS HEFFERON LAW
PAGE 139/113
-8-
PL031180 et al
probability of re-tenanting. In fact, the East Town Centre may serve a multi-function in
contradistinction to the chain-stores or big-formats that are proposed. The Board Is left
with nothing but a promise of probable evldence that may be forthcoming to support the
bald assertion that the pranned functions are at risk while the definition of the planned
functions remains curiously elusive at this stage.
Thirdly, there is the question of the status of the Bowmanville BIA. It is not the
wont of the Board to perceive that only the public authorities can speak on behalf of the
public interests. And It has never been nor it would not be our practice, on a priori
basis, to conclude that ljI business competitor should be denied the right to entertain any
legitimate planning concern. Nonetheless. it is clear that the evidence indicates that the
81A had been courted and finally recruited by Zellers as an al/y, Ms HOU5e.r pursued this
matter relentlessly at the motion. Whether that is meant to navigate around the concarn
that the Bt)srd may nat countenance a naked business competition is not, in our view,
terribly Important. The Board is not here to pasR judgement on such a strategic
manoeuvre. It Is our finding that Mr. Stein need not fear that his excellent reputation
may be impeached or tarnished. For the purpose of our analysis, there hasn't been
sufficient indication to the Board how the BIA will be placed at risk or the risks are such
that justifiable concerns have been proffered. Nor was there any preliminary explanation
as to how these 4 out of the 12 blocks should feature predominantly in thB role of the
East Town Centre. The BIA must show it has some worthy planning concerns beyond
platitudes, apprehensions and promises to supply more substantial evidence at a
hearing. The mere badge of the BrA do~s not confer the requisite legitimacy.
Fourthly, the allegation that the market impaot studies are flawed seems to focus
on the questions of recapture, inflow and the assumption for the entry !ev~1 ()f the Wa!-
mart sales_ The consultant for tha appellant Mr. Joseph had been cross-examined for
the purpose of these motions. Very briefly put~ tt is our finding that Mr. Joseph's
opinions amount to no more but an apprehension of the detailed market work done by
the municipality in the course of two years. In the purported challenge to recapture, no
alternative recapture assumptions had been offered. As for Inflow. while Mr. Joseph
remains critical of the levels of inflow, no empirical evidence had been proffered 88 a
probable alternative. For the sales, there has not been any probable explanation
proffered to support the belief that the proposed sales in Bowmanville would perform
80.d
v0vL~S891v6 O~ 9tLe L2~ 91v
a~~OB Nnw ~NO ~= 0V:vi 8002 22 9n~
08/22/2005 15:31
4158547404
DENNIS HEFFERON LAW
PAGE 10/10
** 80'3e~d '~LOL **
-9-
PL031180 Bt al
higher than the predictions done by Mr. Annand. In an overall sense, the allegatiOns
appear to rest on Mr. Joseph's personal judgements rather than substantial empirical or
methodological differences that ca.n be ~nsidered seriously. More Importantly to the
Board, there is the over-arching unanswered question why these apprehensions would
relate to the planned functions and would constitute a land use planning question for the
Beard to consider.
For these reasons, this panel orders the motions be granted and the Joint
Appeals to OPA 43,44 and By~law 2006..047 are dismissed without a healing,
"S.W. Lee"
SoW. LEE
EXECUTIVE VICE-CHAIR
"J. Chee-Hing"
J. CHEE-HING
MEMBER
60'd
P0PLv9891vS OL SlL0 L28 9t~
a~~oa Nnw iNO ~~ 0P:vT 9002 ZG 9n~
12/04/2005 15:25
4158547404
DENNIS HEFFERON LAW
ATTACHMENT 2
DEC-04-2006 14=24
3389
Ol'ltarlo
ontario Municipal Board
Commission des affaires municipalea de l'Ontarto
PL031180
PL040131
PL040041
Pl060287
ISSUE DATE:
December 4. 2008
DECISION/ORDER NO:
Haiioway Holdings LImIted has appealed to the Ontario Municipal Board under $ubsee:tion
34(11) of the Planning Act. R.S.O. 1990, c. P.13, as amended. from Ccunc1rs refusal or neglect
to enact a proposed amendment to Zoning By-law 64-63 of the Municipality of Clerington to
rezone lands respecting Part of Lot 16, Concession 1 to permit the development of a
commercial plaza
OMS File No: Z040023 (PL040131)
Halloway Holdings Limited has appealed to the OntariO Municipal Board under subsection 22(7)
of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to
enact a proposed amendment to the Official Plan for the Munioipality of Clarington to
redesignate land on Part of Lot 18, ConcasQion 1 to permit the development of a commercial
plaza
OMB File No: 0040032 (PL040131)
Loblaw Properties Limited has appealed to the Ontario Municipal Board under subsection
34(11) of the Planning Act, R.S.O. 1990, c. P .13, as amended, from Council's refusal or neglect
to enact a proposed amendment to Zoning By-law 64-63 of the Municipality of Clarington to
rezone lands respecting Part of Lot 16, Concession 1, municipally known as 2375 Highway No.
2, by removing the reQuirement for a Sl.Ipermarket '
OMS File No: Z040oo5 (PL040041)
A YT Corporation, Zellers Inc. and Historic DowntoWn Bowmsnvllle BIA have appealed to the ,
Ontario Munidpal Board under subsection 17(24) of the Planning Act, R.S.O. 1990, c. P. 13, as
amended, from the decision of the Municipality of Clarington to approve Proposed Amendment
No_ 43 to the Official Plan for th~ Munieipality of clarington for the purpose of amending the
Clarington Official Plan. the Bowmanville East Main Central Ares Secondary Plan, the Courtice
Sub-Central Area Secondary Plan. the Newosstle Village Main Central Area Secondary Plan
12/04/2005 15:25
DEC-1::I4-2006 14: 24
4168547404
DENNIS HEFFERON LAW
PAGE 04/07
P.03/06
and the South-West Courtiee Secondary Plan in ordQl'to implement the recommendations of the
Commercial Policy Review and the Bowmanville West Main Central Area Secondary Plan
Review
OMB File N~. 0060059 (PL060287)
Zellers Inc. and Historic Downtown Bowmanville BIA h!1ve appealed to the Ontario Municipal
Board under subsection 17(24) of the Planning Ad, R.S.O. 1990, c. P. 13, ss amended, from a
decisIon of the Municipality of Ctarlngton to approve proposed Amendment No. 44 to the Official
Plan for the Municipality of Clarington for the purpose of Implementing the recommendations of
the Commerdal Policy Review and the Bowmanville West Main central Area Secondary Plan
Review including th8 renamlng of this Main Central Area to tha Bowmanville West Town Centre,
expanding the boundaries . of the West Town Centre and designating addltlonal lands' for
commercial development
OMS File No. 0060060 (PL060267)
Loblaw Properties Limited, Zellers Inc. and Historic Downtown BowmanVille BIA have appealed
to the Ontario Municipal Board under subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.
13, as amended, against Zoning By-law 2006..Q4 7 of the Municipaiity of Clarington
OMS File No. R0600B7 (F'L060287)
BE FOR E:
M.HUBBARO
CHAIR
)
)
)
Monday, the 4th day of
December, 2006
UPON APPEAL to this Board by Loblaw Properties Limited under subsection 34(19) of
the Planning Act pertaining to Zoning By~law 2006-047 of the Municipality of Cfarington:
AND THE BOARD, upon the con$ent of the Municipality of Cfarington, the Regional
MunIcipality of Durham, West Diamond Properties Inc., Players Business Park Limited,
Halloway Holdings Limited and Loblaw Properties Limited Orders that pursuant to
subsection 34(32) of the Planning Act;
12/04/2005 15:25
DE:C-04-2006 14:24
4158547404
DENNIS HEFFERON LAW
PAGE 05/07
P.04/06
1. The Municipality of Clarington's Zoning By-law 2006-047 be amended as
follows:
(i) by deleting from Schedule 22A.4.1 (b )(iii) the words "arg~-format storell
and replacing them with the words "large format retan store-;
. (ii) by deleting from Section 22A.4.3(b)(i) the words "future public~ and
replacing them with the words C1Future Public street";
(in) by dalat!ng from Section 22A.4,3(b)(iii) the word '1utureJl and replacing
it with the word -Future"; and
(iv) by deleting from Section 22A.4.3{b )(iv) the words "'future public street"
end replacing them with the words "Future Public Street";
2. The Municipality of Clarlngton's Zoning By-law 2006-047, as amended by this
Order, is deemed to have come into force on the 181 'day of March 2006, save
and except for the following:
(i) the reference to -17,000 square metres of total floor area" in paragraph
1 of Section 16.5.14(c);
(II) Section 16.5.14(c)(xviii);
(Ill) SectIon 16.5.14(e)(ii);
(v) Sections 22A.2, 22A.3 only In relation to that parcel shown on
Schedule -A-2" to Zoning By-law 2006-047 that is proposed to be
rezoned to U(H)C8-3";
(Iv) Section 22A.4.3; and
(vi) that part of the proposed zone change from "A" to "(H)C8-3" shown
outlined in bold on the copy of Schedule Ol A-2" to said Zoning By~law
2006.047. attached 'hereto as Attachment "1";
AND THE BOARD ORDERS that the portion of the zone change from nAPI to fl(H)C8-31l
shown on Schedule IIA_2" to Zoning By-law 2006...Q47 which has come into force
pursuant to the foregoing has only come into force to the extent necessary to pennit the
"Future Private Streef' to be constructed to provide driveway access to the lands zoned
'"(H)C9-3" and D(H)C8-4";
12/04/2005 15:25
DEe -04-212106 14: 24
4158547404
DENNIS HEFFERON LAW
PAGE 05/07
P.05/136
AND THE BOARD FURTHER ORDERS that this Order is without prejudice to any
argument to be made on behalf of Loblaw Properties Limited pursuant to the appeal
filed on its behalf to said Zoning By-law 2006-047 respecting the permitted uses and
regulations to the -(H)C8-3- zone. and to any argument which may be made on behalf
of any of the parties respecting the reference to "17,000 square metr~s of total floor
area" In paragraph 1 of Section 16.5.14(c) of Zoning By-law 2006-047.
SECRETARY
12/04/2005 15:25
DEC-04-2006 14:25
4158547404
DENNIS HEFFERON LAW
PAGE 07,/ tJ7
A TT ACHMI:N I -,."
P.I?J6/05
\
. -
. iQ;IEDlJU! · A"
This Is S~hedule"A..2".tG, By..,IBW 20~6- .C4.J
passed this ~ day of z-c1I _ !I 2008 A.D.
~ .
J
· J
z
HI
~. .
UPTOWN AV
ci
~
~.
OfJRk4
AI HtGHWAt 2
a
I .
~ Zoning Change From "A" To "(H)C&.3"
_ Zoning Change From.A-To "(H)C9-3"
II1II . Zoning Change From "01'..15. To Ill(H)C9003-
~ Zoning Change From ..,.. TO '"(H)<;a....
~ Zoning Change FmIII "C1-15"" Tot'" W'
~ .
-'
------
_n..~ .
,
.j
TOTAL P.06
12/05/2005 14:55 4158547404
DEC-0S-2006 13=50
ISSUE DATE:
Decernber05,2006
, DECISrON/ORDER NO:
3404
DENNIS HEFFERON LAW
ATTACHMENT 3
PL031180
PL040131
P,L040041
PL060287
Ontario
Ontario Municipai Board .. .
Commission des affaires municipales de l'Ontario
West Diamond Properties Inc. and Players Business Park Ltd. have appealed to the Ontario
Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13. as
amended, from Counclrs refusal or neglect to enact e proposed amendment to Zoning By-law
64-63 of the Municipality of C!arington to rezone lands respecting Part of Lot 17, Concession 1
and 2 to permit the development a commercial centre InCluding a discount department store and
a supermar1<et
OMS File No: 2030175 (PL0311S0)
VJI!Je.+ n.,""...........d Or..............'...... I..... "'n'''' P'a"<'!>rs Bu-I"'-~s p-.... L.... h-ve __............I......a ..... "h- ^nw-n"o
........ .... ......". , . Vp"""""O II ,.... a N I 1'9 ~ .1<:;:1 ell" Uol, let Ql"fo"='al~ ~v l Ie: V Ild I
MunIcipal Board under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13. as amended.
from Council's refusal or neglect to enact e proposed amendment to the Official Plan for the
Municipality of Clarington to redesignate land on Part of Lot 17, Concession 1 and 2 to permit
the development a commercial centre including a discount department store and a supermarket
OMB File No: 0030411 (PL031180)
Halloway Holdings LImited has appealed to the Ontario Municipal Board under subs~ctlon
34(11) of the P!annlng Act, R.S.O. 1990, Co P.13. as amended, from Council's refusal 'or neglect
to enact a proposed amendment to Zoning By-law 84..a3 of the Municipality of Clarington to
~one lands respecting Part of Lot 16. Concession 1 to permit the development of a
commerCial plaza
OMS File No: Z040023 (PL040131)
Halloway Holdings Limited has aPPilaled to the Ontario Municipal Board under subsection 22(7) . ,
of the Plenning Actl RS.O. 1990, c. P.13, as amended. from Councilts refusal or neglect to
enact e proposed amendment to the Official Plan for the MunIcipality of Clerington to
redeSignate land on Part of Lot 16, Concession 1 to permit the development 'Of a commercial
plaza
OMS File NO: 0040032 (pL040131)
loblaw Properties Limited has appealed to the OntarIo Municipal Board under subsection
34(11) of the Planning Act. R.S.O. 1990, c. P .13, as amended. from Councllts' refusal or neglect
to enact a proposed amendment to Zoning By-law 84-83 of the Municipality of Clarington to
rezone lands respecting Part of Lot 16, Concession 1, municipally known as 2375 Highway No.
2, by removing the requirement for a supermarket .
OMB File No: Z040005 (PL040041)
A YT Corporation, Zeller$ Ine. and Historic Downtown Bowmanville BIA have appealed'to the
Ontario Municipal Board under subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as
amended. from the decision of the Municipality of Clarington to approve Proposed Amendment
No. 43 to the Official Plan for the MunicIpality of Clarlngton for the purpo~e of amending the
Claring10n Official Plan, the Bowmanvllle East Main Central Area Secondary Plan, the Courtice
Sub-Central Area Secondary Plan, the Newcastle Village Main Central Area Secondary Plan
and the South-We$t Courtice Secondary Plan in order to implement the recommendations of the
12/05/2005 14:55 4158547404
DEC-elS-2006 13=50
DENNIS HEFFERON LAW
PAGE 04,/05
P.12I3/04
Commercial Policy Review and the Bowmanvllle West Main Central Area Secondary Plan
Review
OMS File No. 0060069 (PL060287)
Zellers Inc. and Historic Downtown Bowmanvllle BIA have appealed to the Ontario MunicIpal
Board under subsection 17(24) of the Planning Act, R.S.O. 1990, e. P. 13, as amended, from a
decision of the Municipality of Clerington to approve Proposed Amendment No. 44 to the Official
Plan for the Munlclpanty of Clarlngton for the PUrpose of implementing the recommendations of
the Commercial poncy Review and the Bowmanvllle West Main Central Area Secondary Plan
Review including the renaming of this Main Central Area to the Bowmanville West Town Centre,
expandIng the boundaries of the West Town Centrfl iind designating additional lands for
commercial development
OMS File No. OO~0060 (PL060287)
Loblaw Properties Limited. Zellers Inc. and Historic Downtown Bowmanville BIA have appeared
to the Ontario Municipal Board under subsection 34(19) of the PlannIng Act.. R.S.O. ;990, C, P.
13, as amended. against Zoning By-law 2006..Q47 of the Municipality of G!artngton
OMS File No. R0600G7 (PL060287)
BEFORE:
M.HUBSARD
CHAIR
)
)
)
Monday, the 4th day of
December, 2006
UPON APPEAL to the Board by A YT Corporation with respect to Official Plan
Amendment 43 of the MunIcipality of Clarington as scoped to siteaspecifically pertain to
their lands located on both the east and west side of Bennett Road. from Highway 401
to Baseline Road, and aa further seepacl to be limited to Policies 16. 21. 53 and 58 of
the said Official Plan Amendment:
AND THE BOARD, in accordance with Decision/Ords'f No. 1265 issued on April 28,
2006. having consolidated the new appeals on Official Plan Amendment 43t Official
Pian Amendment 44 of the Municipality of Clarington and Zoning By-law 2006-047 of
the Municipality of Clarington with the private appeals under OMS Case Nos.
~L031180, PL040131 and PL040041;
12/05/2005 14:55 4158547404
DEC-~S-2006 13=50
DENNIS HEFFERON LAW
PAGE 05/05
P.04/04
AND THE BOARD, in accordance with Decision/Order No. 2363 issued 00 August 22,
2006, having dismissed the appeals under subsections 17(45) and 34(25) of the
Planning Act, by Zellers Inc. and Historic Downtown Bowmanvllle BIA to Official Plan
Amendment No. 43, Official Plan Amendment No. 44 and Zoning By~iaw 2006j
AND THE BOARD, upon the request by A YT Corporation and as consented to by the
FlAllnlt"-lnolfhl nf t"'t~"'n,.,""'" ,^,."..,"t nl................ Pr.....""....:....... I_C 01..........._ O. ._t____ M_....
"...,.,-....-"...-......1 .., VU;,;.....~I.~..V... v.'-'~ WI.:;nIIVI~" Vt-'v'LI,(;" UI ., r.IC:I)''C:;;:I~ I;JU.:tIlJ'O't!U:J reulf\
limIted, Halloway Holdings Limited and Loblaw Properties Limited, Orders that the
appeal ,by AYT Corporation with respec:t to Official Plan Amendment 43 of the
Municipality of Clarington. as accordingly soaped, has been deconsolldated from the
remaining appesl by Lobla...., Properties Limited par+lSlnlng to Zoning By":aw 2006-047
. .
as well as with the private appeals under OMB Case Nos, PL031180. PL040131 and
PL040041.
1-
~
<<
r
.
T
SECRETARY
TOTAL P.04