HomeMy WebLinkAboutPSD-025-07
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REPORT
PLANNING SERVICES
Date:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
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By-law #: 3:.@/ - D<61
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Monday, February 19, 2007
Meeting:
Report #:
PSD-025-07
File #: RE 6.2.7
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Subject:
REASONS FOR DECISION OF THE INQUIRY OFFICER UNDER THE
EXPROPRIATIONS ACT RESPECTING THE PROPOSED EXPROPRIATION
OF 50 EAST BEACH ROAD
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report PSD-025-07 be received and APPROVED;
2. THAT Council as the approving authority under section 5(1) of the Expropriations Act
having considered the Inquiry Officer's Reasons for Decision and recommendations
including his Finding number 4, dated January 2, 2007, determine that the Owners of 50
East Beach Road should not be given the choice of retaining the portion that will be
situated on the north side of the to be realigned East Beach Road comprising the
northerly approximate 36% of the area of 50 East Beach Road for the reasons set out in
Section 2 of this Report;
3. THAT Council pass a by-law to approve the proposed expropriation of the "Lands"
comprising the whole of 50 East Beach Road which are more particularly described in
Attachment 3, for the purposes of a district park;
4. THAT Council pass a by-law to authorize the Mayor and the Municipal Clerk to execute
a Certificate of Approval on behalf of Council as the approval authority as is required by
section 8(3) of the Expropriations Act (Attachment 7);
5. THAT Council approve the Notice of Decision and Reasons for Decision of Council
contained in Attachment 8 approving the proposed expropriation of the Lands for the
purposes of a district park and authorize the Municipal Clerk to serve a copy of them on
all parties as required by section 8(2) of the Expropriations Act;
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-08
REPORT NO.: PSD-025-07
PAGE 2
6. THAT Council pass a by-law to expropriate the Lands for the purposes of a district park
pursuant to section 6 of the Municipal Act, 2001 (Attachment 9);
7. THAT Council pass a by-law to authorize the Mayor and the Municipal Clerk on behalf
of the Municipality to execute a plan of expropriation of the Lands and cause the plan to
be registered in the proper Land Registry Officer pursuant to section 9(1) of the
Expropriations Act (Attachment 10); and
8. THAT staff be authorized to give all necessary notices, and to take all necessary actions
to complete the expropriation.
CS~-U?~1LJLL
Reviewed by:
Franklin Wu,
Chief Administrative Officer
FUDJC/df
February 14, 2007
REPORT NO.: PSD-025-07
PAGE 3
1.0 BACKGROUND
1.1 Council's approval of the recommendations contained in Report #PSD-095-04
(Attachment 1) at its meeting on June 28, 2004 authorized the commencement of the
procedures provided in the Expropriations Act for the proposed acquisition by the
Municipality of 50 East Beach Road ("Lands"). The registered owners of the Lands are
Chigweyaru Agbaru and Thomas Cauchon ("Owners"). These Lands are located north
of East Beach Road, and west of Port Darlington Road, Bowmanville.
1.2 The Owners requested that an inquiry be held under the Expropriations Act as to
whether the taking of the Lands is fair, sound and reasonably necessary in the
achievement of the objectives of the expropriating authority, the Municipality of
Clarington ("Hearing of Necessity"). The Lands in question as well as certain other lands
owned by the Municipality are outlined on Map 2b) contained in Attachment 2. The
lands owned by the Municipality lie to the south, east and west of 50 East Beach Road.
To the north of 50 East Beach Road is the Region's Water Treatment Plant and
Pollution Control Plant.
1.3 An Inquiry Officer, Mr. Harold S. Goldkind, a.c. was appointed to conduct the Hearing
of Necessity requested by the Owners. He concluded that subject to his Finding
number 4, which is discussed in Section 2 of this Report, the proposed expropriation is
reasonably defensible and accordingly is fair, sound and reasonably necessary in the
achievement of the objectives of the expropriating authority, the Municipality of
Clarington. A copy of the Inquiry Officer's Reasons for Decision dated January 2, 2007
is contained in Attachment 3.
1.4 In Finding number 4, the Inquiry Officer recommended that the expropriating authority
consider whether the Owners should be given a choice of retaining the portion of land
on the north side of the realigned East Beach Road, as shown on Map 2a) in
Attachment 2.
1.5 The Lands comprising the whole of 50 East Beach Road are recommended by Staff to
be expropriated. They include the northerly approximate 36% adjacent to what is
proposed to be a realigned East Beach Road. The Lands are described in Attachment
4 and shown on the survey plan Map 2c) in Attachment 2.
1.6 Under the Port Darlington Neighbourhood Secondary Plan the portion of the Lands
north of the realigned East Beach Road are designated Village Commercial. Under this
designation residential uses are permitted only on the second floor of a building which
contains a permitted non-residential use. A single detached dwelling with or without a
"Bed and Breakfast" is not permitted on lands designated Village Commercial.
1.7 At present, the whole of 50 East Beach Road is zoned Residential Shoreline (RS) in the
Municipality's Comprehensive Zoning By-Law 84-63, as amended. This zoning is in
effect. It permits a single detached dwelling which may include a "Bed and Breakfast
Establishment" as an accessory use on 50 East Beach Road subject to a regulation
regarding, among other things, a minimum lot area. This zoning antedates Council's
adoption of the Port Darlington Neighbourhood Secondary Plan in 1996.
REPORT NO.: PSD-025-07
PAGE 4
1.8 If the Municipality was to expropriate only the northerly approximately 36% of 50 East
Beach Road, assuming that the Owners are given the choice to retain the area northerly
of the realigned East Beach Road, this area would comprise a new lot for zoning
purposes and would have approximately one-half of the minimum lot area required by
the Residential Shoreline (RS) zoning if a sanitary sewer is not available. A sanitary
sewer is not available currently.
1.9 Since the Port Darlington Harbour Company, Wiggers Custom Yachts and Mr. Glen
Ransom had appealed, under section 17 of the Planning Act, to the Ontario Municipal
Board the approval of Official Plan Amendment No. 39 (which amended the Port
Darlington Neighbourhood Secondary Plan) to permit, among other things, the
proposed realignment of East Beach Road north of its current alignment, and had also
requested Hearings of Necessity respecting the proposed expropriations of their
respective properties, the establishment of a Joint Board under the Consolidated
Hearings Act was required to hear and determine both the appeals under the Planning
Act and the requested Hearings of Necessity under the Expropriations Act. As a result,
the Hearing of Necessity for 50 East Beach Road was delayed until after the decision of
the Joint Board under the Consolidated Hearings Act approving Official Plan
Amendment No. 39, had been made.
1.10 Official Plan Amendment No. 39 as modified was approved by the Joint Board on the
13th day of January, 2006. It permitted the proposed realignment of East Beach Road.
The Hearing of Necessity respecting 50 East Beach Road was deferred until November
2006 to allow for negotiations between the parties to take place. They have taken place
but did not result in an agreement that could be recommended to Council by Staff. The
Hearing of Necessity was then scheduled by the Inquiry Officer.
1.11 At the Hearing of Necessity respecting 50 East Beach Road, the Municipality's witness
was Faye Langmaid, Manager of Special Projects. Ms. Agbaru and Mr. Cauchon
represented themselves. Thirteen exhibits in support of proving the necessity of
acquiring 50 East Beach Road were tendered as evidence by the Municipality at the
Hearing. The exhibits included the Port Darlington Neighbourhood Secondary Plan as
amended by Official Plan Amendment No. 39 and excerpts from the Municipality's
Comprehensive Zoning By-law.
1.12 The Inquiry Officer found that the part of the Lands which would be adjacent to the north
limit of the realigned East Beach Road is not required for the purposes of the district
park. This part is designated Village Commercial in the Port Darlington Neighbourhood
Secondary Plan. In the Inquiry Officer's opinion, there is no requirement for public
ownership of this part for the purpose of development of the district park.
1.13 At the Hearing of Necessity, the Owners had proposed that their land not be
incorporated into the district park and that they retain all or part of their land for
residential use and future Village Commercial use such as a "Bed and Breakfast".
Against this background, the Inquiry Officer made his finding that a residential use with
a "Bed and Breakfast" was permitted in a Village Commercial area under the Port
Darlington Neighbourhood Secondary Plan. He then recommended that the Municipality
consider whether the Owners should be given a choice of retaining the portion of land
REPORT NO.: PSD-025-07
PAGE 5
on the north side of the realigned East Beach Road (See Finding number 4 on Pages
11 and 12 of Attachment 3).
1.14 In Staff's view, the Inquiry Officer erred in finding that a residential dwelling with a "Bed
and Breakfast" would be permitted in a Village Commercial area under the Port
Darlington Neighbourhood Secondary Plan. While as noted above, this use is permitted
by the Zoning By-law in a Residential Shoreline (RS) zone if it is contained in a single
detached dwelling, and the applicable zoning regulations are satisfied. However, a Bed
and Breakfast Establishment is not a permitted use if it is contained in a residential
dwelling in a Village Commercial area. For a Bed and Breakfast Establishment to be
contained in a residential dwelling in a Village Commercial area, the Secondary Plan as
well as the Zoning By-law would have to be amended.
1.15 In his Reasons for Decision, the Inquiry Officer referred to Ms. Langmaid's evidence
that there were certain difficulties associated with expropriating less than the whole of
the Owners' property. In reviewing the difficulties that would result if the Owners were
given the choice of retaining the northerly approximate 36% of the area of 50 East
Beach Road, Staff believe these difficulties are virtually insurmountable for the reasons
outlined in Section 2 of this Report.
1.16 Under section 8(1) of the Expropriations Act, the approving authority, in this case,
Council is required to consider the Report of the Inquiry Officer and approve it, not
approve it, or approve it with one or more modifications, that the Municipality considers
appropriate. Under section 8(2) of the Act, the Municipality is required to give written
reasons for its decision and to cause the decision and reasons for it to be served on all
the parties and on the Inquiry Officer within 90 days after the date (January 5, 2007) on
which the Municipality received delivery of the report of the Inquiry Officer.
1.17 Section 9 of the Expropriations Act requires that Municipality, within 3 months after the
granting of approval register in the land registry office a plan of expropriation. On the
registration of the plan of expropriation, within the 3 months period, but not otherwise,
title to the expropriated land vests in the Municipality.
2.0 APPROVAL OF PROPOSED EXPROPRIATION
2.1 In Finding number 4 of his Reasons for Decision, the Inquiry Officer recommended that
the Municipality consider whether the Owners be given a choice of retaining the portion
of 50 East Beach Road that will be on the north side of the proposed realigned East
Beach Road. At the Hearing of Necessity, Ms. Agbaru had testified that when she and
Mr. Cauchon originally purchased 50 East Beach Road with the dwelling on it, they did
so with the idea of converting it into a "Bed and Breakfast" in the future. In reviewing
the Inquiry Officer's recommendation, Staff examined the potential and practical
difficulties and costs for the Municipality to provide the Owners with this choice. For the
reasons that follow, Staff recommend that after considering the Inquiry Officer's
Reasons for Decision and this Report, Council refuse to give the Owners the choice of
retaining the portion of 50 East Beach Road northerly of the realigned East Beach
Road.
REPORT NO.: PSD-025-07
PAGE 6
2.2 The current zoning of the whole of 50 East Beach Road is Residential Shoreline (RS).
In this zone, the permitted uses are single detached dwellings, seasonal dwellings and
certain home occupation uses subject to certain regulations respecting such matters as
minimum lot area (2,800 square metres) and minimum area of a single detached
dwelling (110 square metres). Accessory uses to the main use are permitted. A "Bed
and Breakfast Establishment" is a permitted accessory use in a dwelling consisting of
three guest rooms in which the proprietor resides and which caters to the needs of the
traveling public by furnishing temporary sleeping accommodations. The main use of a
dwelling in which a "Bed and Breakfast Establishment" may be established must be a
residential use in order to satisfy the Zoning By-law's definition of the term "dwelling".
2.3 The Residential Shoreline (RS) and "Bed and Breakfast Establishment" provisions of
the Zoning By-law antedate the adoption of the Port Darlington Neighbourhood
Secondary Plan. They do not conform with the designation of 50 East Beach Road as
Village Commercial in the Secondary Plan.
2.4 If the effect of the proposed expropriation is to reduce the area of 50 East Beach Road
by 64%, the result would be that the northerly approximate 36% of it would comprise a
new "lot" for the purpose of the Zoning By-law. The new lot would not satisfy the
minimum area requirement of the existing Residential Shoreline (RS) zone unless the
By-law was amended to reduce the minimum lot area requirement to approximately one
half of the current requirement. Such an amendment would not be in the public interest.
The purpose of the current minimum lot area requirement is to provide adequate space
for a dwelling unit, a septic bed and a reserve area for a septic bed. While the existing
lot (that is, the whole of 50 East Beach Road) has water service, there is no sanitary
sewer in the area. When East Beach Road is realigned, the sanitary sewer probably
will not be extended until there is sufficient development in the residential area to the
east to warrant the construction of the sanitary sewer. The timing of this residential
development and the provision of this sanitary sewer is not known. Also, apart from the
lack of a sanitary sewer, the new lot would be undevelopable until East Beach Road is
realigned as the new lot would not have frontage on a public road, a requirement of the
Zoning By-law for any lot that is to be built upon.
2.5 Before East Beach Road can be realigned, the Environmental Assessment Act will have
to be complied with. It requires, among other things, that an Environmental Study
Report be prepared and approved under the Class Rules contained in the. Regulations
made under the Act. Determining the northerly limit of the realigned East Beach Road
in the absence of this Study would be premature and could limit the alternatives
available to the Municipality to satisfy its obligations under the Act and Regulations. It
would be inappropriate at this time for the Municipality to attempt to establish the
location of the road in advance of such approval being given under the Environmental
Assessment Act. Until the specific northerly boundary of the realigned East Beach
Road is established, it would be impossible to describe the southerly limit of the new lot
with precision. The precise area of the new lot is an important consideration under the
Zoning By-law for making a development decision.
REPORT NO.: PSD-025-07
PAGE 7
2.6 Currently, the timing of the realignment of East Beach Road and the timing of the
development of the Village Commercial are unknown. Also, as indicated above, the
timing of development of the lands designated Village Commercial is unknown.
2.7 The Port Darlington Neighbourhood Secondary Plan was the result of extensive public
input spanning over 3 years. The Secondary Plan was adopted at the same time (1996)
as the Official Plan, which also had extensive public input and review. The area
designated Village Commercial is a key element of the Secondary Plan.
2.8 The Port Darlington Neighbourhood Secondary Plan limits the geographic extent of the
Village Commercial area; establishes the maximum amount of gross leasable area for
retail and personal services to 1,500 square metres, and requires all construction to be
limited to two storeys. As shown on Map 2a) contained in Attachment 2, the conceptual
layout of the Village Commercial along the realigned East Beach Road is a continuous
strip of similar buildings with architectural venestrations that reflect the historical
character of the area and conform to the urban design guidelines as discussed in
Section 2.12.
2.9 The permitted uses in a Village Commercial area are retail and personal service uses,
retail specialty shops and studio facilities, restaurants, office and related uses and
residential uses incidental to the main use of the lot. In order for the Owners to have a
"Bed and Breakfast" dwelling on the new lot, an Official Plan Amendment would be
required. To amend the Secondary Plan on a site specific basis to permit a "Bed and
Breakfast" dwelling on the new lot would not be consistent with the intent of the Village
Commercial designation given its limited geographic extent of the area so designated.
It is not recommended by Staff.
2.10 The designation of the Village Commercial area in the Port Darlington Neighbourhood
Secondary Plan was the subject of careful consideration in the context of the
surrounding uses. The Village Commercial area is adjacent to the Region's Water
Treatment Plant and the Region's Pollution Control Plant. The class Environmental
Assessment for the expansion of the Pollution Control Plant has been underway for the
past 18 months. The area designated Village Commercial abuts the 150 metre buffer
for the Pollution Control Plant, providing that the preferred option that is currently under
consideration is approved.
2.11 Having a single detached dwelling with a "Bed and Breakfast" use in the middle of this
strip of Village Commercial would not provide for the street character, ambience and
activity that the Village Commercial area is to provide. Although as is noted above,
residential uses are permitted on the second floor of a building within the Village
Commercial area, this must be incidental to the main non-residential use. It would not
be possible without amending the Secondary Plan and the Zoning By-law to establish a
"Bed and Breakfast" in a dwelling located on the second floor of a dwelling. Any
amendments of either the Secondary Plan or the Zoning By-law would require the
completion of the full public participation process required by the Planning Act and the
Official Plan before Council could consider approving or passing them. It would be
premature to do so in the context of considering this Report.
REPORT NO.: PSD-025-07
PAGE 8
2.12 The general policies of the Port Darlington Neighbourhood Secondary Plan call for
Urban Design Guidelines to implement the policies of the Secondary Plan and act as a
visual interpretation of future development proposals. While urban design guidelines
have not been adopted by Council, a preliminary implementation strategy was set out in
the background work to the Secondary Plan (Attachment 5). The urban design concept
is not consistent with the establishment of a dwelling in which a "Bed and Breakfast
Establishment" is permitted as an accessory use.
2.13 A "Bed and Breakfast Establishment" in a dwelling is not a permitted use on a new lot
comprising the northerly approximately 36% of 50 East Beach Road unless the Village
Commercial designation of 50 East Beach Road is amended to permit it and the
minimum lot area requirement of the Zoning By-law for a property zoned Residential
Shoreline (RS) which is not serviced by a sanitary sewer, is amended. Any amendment
to the Zoning By-law is required to conform with the Port Darlington Neighbourhood
Secondary Plan.
2.14 Staff are concerned that if the southerly approximate 64% of 50 East Beach Road only
was expropriated there could be significant costs to the Municipality in addition to the
cost of expropriation of that area. The additional costs could include damages that the
Municipality could be required to pay the Owners for injurious affection to the remaining
approximate 36% of 50 East Beach Road. Additionally, the cost per square metre of
the southerly approximate 64% could increase as a result of a partial taking.
2.15 Staff recommend that the whole of 50 East Beach Road be expropriated since the
acquisition of the whole of 50 East Beach Road will probably be at a more reasonable
price and on terms that are more advantageous than those on which the Municipality
could obtain the southerly approximate 64% of 50 East Beach Road. Any surplus lands
could be sold by the Municipality subject to the right of first refusal that Expropriated
Owners would have under the Expropriations Act.
3.0 SUMMARY AND CONCLUSIONS
3.1 In his Reasons for Decision, the Inquiry Officer fairly summarized the evidence and
made findings of fact based on that evidence. At page 13 of his Reasons for Decision,
he stated:
"Subject to my recommendation set out in Finding number 4, I find that the
proposed expropriation is reasonably defensible and accordingly fair, sound
and reasonably necessary in the achievement of the objectives of the
expropriating authority.
3.2 It is recommended that Council, as the approving authority under subsection 5(1) of the
Expropriations Act, having considered the Reasons for Decision of the Inquiry Officer
adopt them save and except those related to Finding number 4, and his finding
regarding permitted uses in a Village Commercial area, as Council's own reasons for
approving the expropriation. It is recommended that Council approve the proposed
expropriation of the whole of 50 East Beach Road for the reasons set out in Section 2 of
REPORT NO.: PSD-025-07
PAGE 9
this Report. It is also recommended that Council pass a by-law (Attachment 6) under
the Expropriations Act to approve the proposed expropriation of the 50 East Beach
Road for the purposes of a district park, and pass a by-law to authorize the Mayor and
the Municipal Clerk execute the Certificate of Approval as required by the Act
(Attachment 7).
3.3 It is recommended that Council authorize the Municipal Clerk to cause the Notice of
Decision and Reasons for Decision of Council approving the proposed expropriation to
be served upon all of the parties as is required by section 8(2) of the Expropriations Act.
Copies of the draft Notice and Reasons for Decision are contained in Attachment 8.
3.4 It is recommended that Council pass a by-law under section 6 of the Municipal Act,
2001 to expropriate the whole of 50 East Beach Road for the purposes of a district park
(Attachment 9).
3.5 It is further recommended that Council pass a by-law to authorize the Mayor and the
Municipal Clerk on behalf of the Municipality to execute a plan of expropriation of the
whole of 50 East Beach Road and authorize its registration in the proper land registry
office pursuant to section 9(1) of the Expropriations Act (Attachment 10).
3.6 If Council approves the proposed expropriation it will be completed by the registration in
the Land Registry office of the plan of the Lands which are expropriated. Under the
Expropriations Act, title is transferred to the Municipality on the registration of the plan,
and the owner's rights are converted by the Act from a right in the land expropriated to a
right to be paid market value compensation plus compensation for any damage
resulting from injurious affection and other items of damages as set out in the Act.
3.7 It should be noted that under the Expropriations Act the Municipality cannot obtain
possession of the land expropriated until notices are served on the registered owner of
the expropriation which require possession of the land expropriated to be given to the
Municipality on a specified date. That date must be at least 3 months after the date of
service of the notice of possession. Before taking possession of the land, section 25(1)
of the Act requires that the expropriating authority serve upon the registered owner an
offer of an amount in full compensation for the owner's interest and offer immediate
payment of 100% of the amount of the estimated market value of the owner's interest.
This offer must be served within 3 months of the registration of the plan. Staff will report
subsequently on a notice of possession respecting 50 East Beach Road.
REPORT NO.: PSD-025-07
PAGE 10
Attachments:
Attachment 1 - Report #PSD-095-04
Attachment 2 - Maps 2a), 2b), 2c)
Attachment 3 - Reasons for Decision of the Inquiry Officer dated January 2, 2007
Attachment 4 - Description of 50 East Beach Road
Attachment 5 - Excerpt from the Implementation Strategy for Port Darlington Area, Feb 1992.
Attachment 6 - By-law to approve expropriation under Expropriations Act and to authorize
execution of Certificate of Approval of Expropriation
Attachment 7 - By-law to authorize execution of Certificate of Approval of Expropriation
Attachment 8 - Notice of Decision and Reasons for Decision of Council
Attachment 9 - By-law to expropriate Lands for a district park under the Municipal Act, 2001
Attachment 10 - By-law to authorize execution and registration on title of expropriation plan
Interested parties to be notified of Council's decision:
Mr. Andy Wiggers, Port Darlington Harbour Company
Port Darlington Community Association, C/O Ms. Glenda Geis
Thomas Cauchon and Chigweyaru Agbaru
Kevin Taylor
Rose Savage
Stephen Waque, Borden Ladner Gervais, LLP
Les Coleman
Chris Williams, Aird & Berlis
Mr. Michael Melling, Davies Howe Partners
Attachment 1
To Report PSD-025-07
CJ!J!ilJgtDn
REPORT
PLANNING SERVICES.
CONFIDENTIAL
Meeting:
COUNCIL
Date:
Monday, June 28, 2004
Report #: PSD-095-04
File # RE 6.2.7
By-law #:
Subject:
APPLICATION FOR APPROVAL OF EXPROPRIATION OF LANDS
NECESSARY FOR THE PURPOSES OF A DISTRICT PARK
50 EAST BEACH ROAD, BOWMANVILLE
RECOMMENDATIONS:
It is respectfully recommended to Council the following:
1. THAT Report PSD-095-04 be received in a "CLOSED" meeting;
2. THAT Council hereby authorizes an application to be made to the Council of the
Corporation of the Municipality of Clarington as the approving authority under subsection
4(1) of the Expropriations Act R.S.O. 1990 c.E.26 as amended, for the approval of the
expropriation of the lands described as 50 East Beach Road, BO'vvmanville, for the
purposes of a district park;
3. THAT Council hereby authorize staff to take all necessary actions to serve notice of its
application for approval to expropriate upon the owner of the land to be expropriated and
to publish the aforesaid notice in accordance with subsection 6(1) of the Expropriations
Act;
4 THAT Council approve the by-law contained in Attachment 2;
5. THAT Council hereby authorize staff to negotiate with the owners for the purchase of 50
East Beach Road, Bowmanville or exchange of lands owned by the Municipality for 50
East Beach Road, Bowmanville; and
6. THAT a copy of Council's resolution be forwarded to the property owners and their
consultant.
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T (905)623-3379 F (905)623-0830
REPORT NO.: PSD-095-04
PAGE 2
Submitted by:
Reviewed bQ'~J-(2~~ \.
Davi . Crome, MCIP, R.P.P. Franklin Wu,
Director of Planning Services Chief Administrative Officer
FUDJC/df
June 28, 1004
REPORT NO.: PSD-095-04
PAGE 3
1.0 BACKGROUND
1.1 The Clarington Official Plan and the Municipality's Land Acquisition Strategy
identifies a District Park site in the vicinity of East Beach Road and the Lake
Ontario waterfront in Bowmanville. Over the past four years the Municipality has
been actively acquiring properties on the south side of East Beach Road which
are considered necessary for the park's development. The priorities for
acquisition are based on the Council approved Waterfront Acquisition Strategy of
2002, as amended by Council approval of report PSD-093-04. Attachment 1
identifies the lands currently owned, or subject to a binding agreement of sale to
the Municipality, and the property proposed for acquisition in this report.
The property is zoned "Residential Shoreline (RS)" in the former Town of
Newcastle Comprehensive Zoning By-law 84-63, as amended. The RS zone
permits a single detached dwelling unit.
Staff met with a representative of the owners of the property at 46 East Beach
Road on June 15th, 2004, , to discuss the possibility of acquiring this adjacent
property, either through purchase or land exchange, before the construction of a
new house. Staff were informed that the owners of 50 East Beach Road would
be coming forward shortly with an application to improve their property. Council
should commence expropriation proceeding to acquire the property in question in
the public interest.
2.0 EXPROPRIATION PROCEDURES
2.1 Council is the approving authority in the case of acquisition of the land by
expropriation for a municipal purpose such as a district park. Section 6 of the
Expropriations Act permits any owner of land who has been given notice of
intention to expropriate to notify the Municipality that a hearing is required. If the
owner submits a request for a hearing an officer will be appointed by the Attorney
General to hold the hearing to determine whether the proposed expropriation is
fair, sound and reasonably necessary in the achievement of the objectives of the
expropriating authority ("Hearing of Necessity").
2.2 If following consideration of the inquiry officer's report, the expropriation is
approved by Council as the approving authority, and the expropriation takes
place, the owner's rights will be converted from ownership of an interest in the
lands in question to a right to be paid fair market value compensation for their
interests. If compensation cannot be agreed to it will be determined through
mediation or, if necessary, by arbitration by the Ontario Municipal Board.
REPORT NO.: PSD-095-04
PAGE 4
3.0 CONCLUSION
3.1 Staff are recommending that the expropriation process to acquire 50 East Beach
Road begin as time is of the essence. The Municipality's Zoning By-law 84-63
permits the construction of a single detached dwelling unit. Staff understand that
the owners will be applying for a permit for a building addition in the near future,
which is permitted under the current RS zone.
3.2 Staff can still negotiate with the property owners and can continue through the
expropriation process. If a fair market value of the land in question can be
agreed to, the expropriation process can be halted and the land acquired by the
Municipality by private purchase.
3.3 Staff recommend that Council pass the By-law contained in Attachment 2 to
authorize an application to be made to the Municipality as the approving authority
for approval of the expropriation of 50 East Beach Road, Bowmanville, for the
purposes of a district park.
Attachments:
Attachment 1 - Key map
Attachment 2 - Application to expropriate by-law
Interested parties to be advised of Council's decision:
Thomas Cauchon
50 East Beach Road
8owmanville, Ontario
L 1 C 3K3
Sewer Treatment Facility
o
<{
o
a:::
Water Treatment Facility
Lake Ontario
Roll Number: 020-130-09400
Address: 50 East Beach Road, Bowmanville
Site Area: 0.36ha (0.89ac)
Intended Use: District Park
v
. Proposed Parcel to be Acquired
D Lands Owned by the Municipality
o Lands Subject to Closing
ATTACHMENT 1
J
RE 6.2.7
CORPORATION OF THE MUNICIPALITY OF ClARINGTON
BY-lAW 2004-
being a by-law to authorize an application to be made to Council as the
approving authority under the Expropriations Act, R.S.O. 1990, c.E.26 for the
approval of the expropriation of all interests in the lands described as 50 East
Beach Road, Bowmanville, for the purposes of a district park
WHEREAS at its meeting on June 28,2004, Council approved Report PSD-095-04
which recommended enactment of this By-law:
NOW THEREFORE THE COUNCil OF THE CORPORATION OF THE MUNICIPALITY
OF ClARINGTON ENACTS AS FOllOWS:
1. That Council hereby authorizes an application to be made to the Council of the
Corporation of the Municipality of Clarington as the approving authority under
subsection 4(1) of the Expropriations Act R.S.O. 1990 c.E.26, as amended, for
the approval of the expropriation of all interests in the lands described as 50 East
Beach Road, Bowmanville, for the purposes of a district park.
2. That Council hereby authorize staff to take all necessary actions to serve nctice
of its application for approval to expropriate upon the owners of the land to be
expropriated and to publish the aforesaid notice in accordance with subsection
6( 1) of the Expropriations Act.
BY-lAW read a first time this 28th
day of
June
2004
BY-lAW read a second time this 28th
day of
June
20U4
BY-lAW read a third time and finally passed this 28th
day of
June
2004
John Mutton, Mayor
Patti L. Barrie, Municipal Clerk
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DENNIS HEFFERON LAW
Attachment 3
To Report PSD-025-07
HAROLD S. GOLDKIND, Q.C.
Barrister and Solicitor
Phone Office: 416-291-5587
Fax: 416-291-3674
28 Elliotwood Court
Toronto, Ontario
M2L 2P9
January 2, 2007
Dennis C. Hefferon
Barrister and Solicitor
Royal Bank Plaza, South Tower
200 Bay Street, Suite 2600
P.O. Box 185, Toronto, Ontario
M51 2J4
Phone: (416)864-7385
Fax: (416)864-7404
Attention; Mr. Dennis C. Hefferon
Barrister and Solicitor
Dear Sir:
Re: Proposed Expropriation by the Municipality of
Clarington of 50 East Beach Road.
Owners: Chigweyaru Agbaru and
Thomas Cauchon
I enclose my report in this matter.
Yours very tnlly,
~A~
Harold s. Goldkind
~l/~~/L~~b 1~:15
4158547404
DENNIS HEFFERON LAW
IN THE MATTER OF mE EXPROPRIATION ACT~ R.S.O. 1990. C.E.26.S.6;
AND fN THE MATTER OF an application by The Corporation of The Municipality of
Clarington for approval to expropriate the land comprising all of 50 East Beach Road, in
The Municipality ofC/arington, in The Regional Municipality of Durham for the
pUJ-poses of a District Park.
REPORT of INOUIRV OFFICER
INQl)IR Y OFFICER
DATE OF INQUIRY
LOCATION of INQUIRY
HAROLD S. GOLDKfND
DECEMBER 12, 2006
MUNICIPALITY of CLARINGTON
PAGE 03/15
~1/~8IL~~b 10:15
4158547404
DENNIS HEFFERON LAW
PARTIES and COUNSEL
I) The Applicant,
Mr. Dennis C. Hefferon, Barrister and Solicitor
,
for The Corporation of the Municipality of Cia ring ton
2) The Respondents,
Ms. Chigweyaru Agbaru and Mr. Thomas Cauchon
Appeared and represented themselves.
INTRODUCTION
The subject matter of this inquiry is an application by The Corporation of The
Municipality of CIa ring ton for approval to expropriate 50 East Beach Road, located in
this Municipality, for the purpose of establishing a District Park.
2
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DENNIS HEFFERON LAW
PAGE 05/15
EVIDENCE
The Applicant's evidence was presented through the testimony of
Ms. Faye Langmaid~a Registered Professional Planner and Landscape Architect who is
employed by the Applicant as Manager of Special Projects. Her duties involve the
planning of parks and the acquisition ofland for municipal purposes.
The following is a summary of her evidence.
The subject property, 50 East Beach Road, is a short distance to the east of
Bowmanville Creek, near its mouth on Lake Ontario. The Respondents reside at the
property which they purchased in 2001. The property has an area of .89 acres with a
frootage of about 144 feet and a depth of about 268 feet and is located on the north side
of East Beach Road. There is a wood frame house located near the front of the property
and a detached garage. The Corporation of the Municipality of CIa ring ton is a large
geographic area resulting from the amalgamation offormer municipalities, townships and
urban areas. The present population is about 83,200 people, with an annual growth of
about 2000 persons. The subject property is located in the former Municipality of
Bowmanville which is experiencing significant residential growth.
In order for the Applicant to provide parkland for its residents, the Appl icant
plans to establish a District Park along the shoreline of La.ke Ontario on both the east and
west sides of the Bowmanville Creek. This Inquiry deals only with the proposed pan of
the District Park on the east side of the Creek. The Applicant has been acquiring lands
Over several years on the east side of this Creek and has now acquired all of the lands
required for the first phase of the District Park, except for 50 East Beach Road. The
Applicant has also removed all buildings from its first phase future park lands except for
66 East Beach Road where there is a demolition permit issued for removal of this
building. The east section of the District Park will be developed in two phases. The first
phase is composed of parkland adjacent to the shoreline of Lake Ontario between the east
limit of the Bowmanville Creek and existing shoreline residences now located on the
south side of East Beach Road.
A Conceptual Master Plan has been developed tor the east beach section of the
proposed District Park. This plan is titled, Conceptual Master Plan for the East Beach
3
01/05/2005 10:15
4158547404
DENNIS HEFFERON LAW
PAGE 05/15
portion of the Port Darlington Waterfront Park. It was presented to the Darlington
Municipal Council. along with a supporting report and received approval from the
Council. The Conceptual Master Plan is to be followed by a more detailed master plan in
the future. The Conceptual Master Plan shows the realignment of the part of East Beach
Road, 55 meters to the north of its present location. The road realignment will take place
along that part of East Beach Road immediately to the west of the existing houses on the
south side of East Beach Road. The proposed realignment road will cut through 50 East
Beach Road near the centre of the property. The realignment of the road is proposed in
order to increase the depth of that part oftne park which is adjacent to Lake Ontario since
a substantial part of this shoreline has eroded. The parkla.nd wi I) be located to the south
of and adjacent to the south limit of the realigned East Beach Road and will feature adult
and junior recreational areas, a winter skating area and a picnic area. The final features
of the park will be shown on a future master plan.
The Applicant plans to designate a strip ofland 011 the north side of the realigned
East Beach Road for Village Commercial use. consisting of restaurants. retail stores and
artisan shops with related second storey residential use. The commercial use is to take
place after the park is established. At present~ there is no municipal policy as to whether
the Village Commercial use land will be owned by the Municipality or by private
ownership.
The Conceptual Master Plan of the park. which includes both the parkland and the
Village Commercial land. includes the whole of the Respondents' property. Although
there was no plan filed which shows the relationship of the Respondents' residence to the
realigned East Beach Road. it appears that the Respondents' residential building will be
located within the parkland use area to the south of East Beach Road. The area ofthe
East Beach section of the proposed Port Darlington Waterfront Park is not large but it
will be connected to the proposed much larger West Beach section of the park on the
west side of Bowmanville Creek. This park will also be linked to adjacent parkland to
the east and west of Bowmanville Creek along the shoreline of Lake Ontario. Because of
the large area of parkland connected together. the proposed Porr Darlington Waterfront
Park is designat'ed as a District Park within the Municipality's Port DarlingtQ!!
4
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DENNIS HEFFERON LAW
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N~ighbourho_od Secondary Plan of June 2006. This Secondary Plan is part of the
Municipality's Official Plan.
Ms. Langmaid referred to the following planning documents leading up to the
establishment of this proposed District Park:
I) The 1991 Royal Commission Report on the future of the City of Toronto
waterfront, ( commonly referred to as the "Crombie Report" ) dealt with
the need to preserve and reclaim Lake Ontario waterfront property along the
greater Toronto waterfront.
The Crombie Report encouraged the development of a waterfront plan by the
Municipality in the area now comprising the Municipality of CIa ring ton before
the authorization of further development along the shoreline of Lake Ontario.
2) As part of the Municipality of CIa ring ton's preparation to review its existing
Official Plan. the Municipality retained a consultant to undertake a study of the
municipal waterfront and the implementation of a land use strategy with respect to
its waterfront. This study was done by Bird and Hale Limited and published
in 1993. The study report is titled. Clarington QfficiaJ Plan Review, Land Us~
Strategy. Municipality QfClaringJon Waterfront Stu4.Y,. This report shows a
recommended Greenway Network stretching along the Clarington waterfront
and designates the area around the east side of the mouth of the Bowmanville
Creek for Urban Park use. This report also recommends land acquisition and
building removal along with a park master plan. This waterfront study was
adopted by the Municipality in 1993.
3) The Qfficial Plan of the Regional Municipality of Durham of 199.1. designates the
area around the mouth of the Bowmanville Creek for use as Waterfront Place and
the area along the shoreline as Waterfront. Both of these designations are under
the general heading ofMaior Open SJ,'lace System. The Official Plan states that
the uses within these areas should focus on the need to protect wildlife habitat
with the potential for other uses established by the municipality.
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01/05/2006 10:15
4168647404
DENNIS HEFFERON LAW
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4) The Municipalitv of Cia ring ton Otlicial Plan of 2001.. on its land use ,MaD A 3,
shows the south part of the subject property located within the land use area
designated as Waterfront Greenway. The Official Plan directs that the
Municipality shall protect and regenerate natural attributes of the WaterfroJll
Greenway and permit active and passive recreational uses in this area.
This Plan and Man A-J also show the areas on the east and west sides of the
mouth of the Bowmanville Creek as a District Park. The south part of the subject
property lies within the area designated as District Park and Waterfront
Gr~enway, and the north pan of the subject property is designated as
Urban R~sidential on Map A 3.
The Official Plan life span ends in 2015, with a projected population of 65,000
people. However, development has accelerated and the present population is now
around 83,000 people. Based on the current and planned rate of growth, there is
now a projected population of 135,000 people in 2020.
The witness submitted that the Municipality is trying to provide a waterfront park
system for its residents which is open, clean, accessible, affordable and in keeping
with the Official Plan objectives for its QP-..en Space System. This system
stretches along the shoreline of Lake Ontario and also along the major creeks
which flow into the lake. The Official Plan, under its Parks objectives directs the
Municipality to provide, "parkland at a combined rate of 1.8 hectares per 1000
persons". Ms. Langmaid said that the Municipality is required by its Official plan
to take steps to expand its parklands. to preserve and regenerate its shoreline and
tl1 establish a District Park at the mouth of the Bowmanville Creek.
5) Pon Darlington Neighbourhood Secondary Plan is part of the municipality's
Official Plan. This Plan shows in more detail the land uses in this
neighbourhood . as set out on Map-A, Land Use to the Secondarv Plan,.
On Map-A, the areas designated as Waterfront. Greenway. Green Space and
Environmental Protectio..!l.comprise about 360 acres. On Map-A, East Beach
6
01/05/2005 10:15
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DENNIS HEFFERON LAW
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Road is shown as realigned to the north and the land between the road and the
lake is designated as Wa-terfront Greenway. A section ofIand adjacent to the
north of East Beach Road is designated for VilLa~e ComtnE~rcial use which
includes retail, personal service and restaurant use and related residential use.
New buildings in the Village Commercial area shall not exceed two stories.
6) The 2004 Conceptual Master Plan for Port Darlingt9n Waterfront Park and the
2005 revision of this plan set out in some detail a concept design of the District
Park and possible features within the Park. The Municipality's Council has
adopted these Plans. These Master Plans show East Beach Road realigned about
55 meters to the north of the existing East Beach Road. The Master Plans show
land adjacent to the north limit of East Beach Road as Village Commercial use
and the land adjacent to the south limit of the road as District Park use.
Accordingly, that part of the Respondents' land to the north of the road is shown
as developed with Village Cornmerci~l use and the part to the south of the road is
shown as developed with Di~trict Park uses.
The Conceptual Master pla.n will be followed by a Master Plan showing the
design and features of the Park in greater detail
Generally, the uses designated on these planning documents restrict land use
along the shoreline of Lake Ontario to parkland and greenspace and promote
preservation and regeneration of the natural features ofthe shoreline area.
7
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DENNIS HEFFERON LAW
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TH.E EVI.DENCE of THE RESPONDENTS
This evidence was given orally by both Respondents, The Respondents do not
question the merit of the Applicant's efforts to establish a District Park around the mOllth
of the Bowmanville Creek. However, the Respondents submit that they should be given
the opportunity to retain their property. The Respondents want to continue to own and
occupy their property with the park developed around their property. not with standing
that their residence would be located within the proposed District Park. The Respondents
also propose to convert all or part of their property into a " Be~ and Breakfa.st" once a
commercial use is permitted along the north side of East Beach Road,
The Respondents submitted that they originally purchased this property with the
idea of converting into a "Bed and Breakfast" in the future. The Respondents submit that
they will consent to any required easements over their property or any inconvenience that
they may experience as a result of the Park if they are permitted to retain their propeny
8
01/05/2005 10:15
.
4158547404
DENNIS HEFFERON LAW
PAGE 11/15
APPLICANT'S RESPONSE EVIDENCE
In response to the Respondents' position, Ms. Langmaid said that the intrusion of
private property into the park is not acceptable. The proposed intnlsion presents policing
problems since it creates a visual barrier from the road over the park and may shelter
illegal conduct in the Park. It also interferes with park operations such as maintenance
and park features. Ms. Langmaid does not know whether the existing residence may be
lawfully maintained once East Beach Road is shifted 55 meters to the north. She said
that a new residence would not be permitted on the parcel of land to the south of the
realigned road since the minimum lot requirement for a new residence on a septic
sanitary sewage system is 1 acre and the respondents' remaining land would be under I
a.cre In area.
Ms. Langmaid a.cknowledged that Village G.Qmmercial use will permit a "Bed and
Breakfast" use and does not specify public or private ownership of tile Villa.g~
Comrn~rcial designated land.
9
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DENNIS HEFFERON LAW
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QB.IECTIVE
I find that the objective of the Applicant is the expropriation of the Respondents'
land, being 50 East Beach Road in the Municipality ofClarington, for the purpose of a
District Park, the construction of a realigned East Beach Road and the ownership of lands
adjacent to the north limit of the realigned East Beach Road for future Village
Commercial use,
10
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PAGE 13/15
FINDINGS
I) The Applica.nt proposes to constnlct a District Park at the mOllth of the
Bowmanville Creek, on both the ea.st and west sides of the Bowmanville Creek
along the shoreline of Lake Ontario. This expropriation deals with the East Beach
part of the Park, located on the ea.st side of the Bowmanville Creek. The
Respondents' propeny is adjacent to the north limit of East Beach Road and is
known as 50 East Beach Road. The Respondents' propeny is located within the
limits of the District Park as outlined 011 The East Beach Port Darlim!:ton
Waterfront Master Plan and jt~ Revisi9.!!.,.
2) As part of the Applicant's development plan for the park, the Applicant must
realign East Beach Road, 55 meters to the north of its present location as shown
on the original and revised East Beach Port Darlin~ Waterfront Park Conceptual
Master Plan. This realignment will result in a park with more depth between this
road and Lake Ontario and compensate for the large amount of shore-line lost
through erosion. This will result in a larger and better park.
3) The south part of the Respondents' land is required for the construction and
realignment of East Beach Road and the District Park adjacent to the south limit
of the realigned road. This road realignment and DistriCT Park are shown on the
East :{;3each Port Darlington Waterfront Park ~onceP.tual Master Plan and its
Rrevision.
4) That part of the Respondents' land adjacent to the north limit of the realigned
East Beach Road is not required for the purpose of the District Park. If the
Municipality acquires this land, it will be surplus land designated for Vil1~
Cornmercial uses at some future date after the park is established. There is no
requirement for public ownership of chis part of the Respondents' property forthe
purpose of development of the park. However, if the Respondents are left with
II
01/05/2005 10:15
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DENNIS HEFFERON LAW
PAGE 14/15
ownership of this parcel ofland to the north of the realigned East Beach Road, it
may not be economically or practically beneficial to them.
The Respondents propose that their land not be incorporated into the District Park
and that they retain part of their land for residential use and future Village
Commercial use such as a "Bed and Breakfast".
I recommend that the Applicant consider whether the Respondents be given a
choice of retaining the parcel of land on the north side of the realigned East Beach
Road.
5) The Applicant's establishment ofa District Park is being carried out pursuant to
its obligation under the Municipality's Official Plan and its Secondary Plan for
Port Darlington Neighbourhood.
6) The Applicant requires that pal1 of the Respondents' property, lying to the south
of the realigned East Beach Road, for the purpose of a District Park. rJ the
Respondents are allowed to retain that part of their property, lying to the south of
the realigned East Beach Road. this will result in a significant intrusion into and
loss of parkland. Such an intrusion will interfere with the safe and efficient
operation of the park. The proposed intrusion will interfere with policing of the
park since visibility of and in the park will be impeded. In addition, the intrusion
will reduce the space available for park features and reduce mobility in the park.
The intrusion will make maintenance more difficult and generally interfere
with park operations. The Applicant must acquire all of the Respondents' land
adjacent to the south limit of the realigned East Beach Road for the purpose of
establishing a District Park.
7) The Applicant requires part of the Respondents' land for the purpose of the
realignment of East Beach Road to the north of its present alignment, as shown on
the East Beach Port Darlington Waterfront Conceptual Master Pla.n and its
Revi sian.
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DENNIS HEFFERON LAW
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CONCLUSION
Subject to my recommendation set out in Finding number 4, I find that the proposed
expropriation is reasonably defensible ar'Jd accordingly is fair. sound and reasonably
necessary in the achievement of the objectives of the expropriating authority.
1 recommend that the Applicant pay costs to the Respondents in the amount of $200.00 in
total.
DA TED: 2nd of January, 2007.
~~/ hA~
, Harold S. Gofdkind
13
SCHEDULE 'A'
Parcel Identification No. 26646-0020
Lot 2 Block B, Plan H50073 Newcastle; Lot 3 Block B, Plan H50073 Newcastle;
Part Lot 4 Block B, Plan H50073 Newcastle; Part Lot 5 Block B, Plan H50073
Newcastle; Part Lot 6 Block B, Plan H50073 Newcastle; Part Unopened Lane Block B,
Plan H50073 Newcastle now shown as Parts 1,2 and 3 on Plan 10R-17188 registered
in the Land Registry Office for the Land Titles Division of Durham (No. 40).
Attachment 4
To Report PSD-025-07
Attachment 5
To Report PSD-025-07
38
4.0 PORT DARLINGTON VILLAGE CORE
4.1 Introduction
A village core provides a focus for a neighbourhood and community. It provides a meeting
place and provides services and shopping to serve the immediate and possibly extended
needs of the local residents. In many instances, the core area sets the theme and ~dentitj
for the community. The Port Darlington Village Core is no exception.
The development of the Village Core must reflect the historical "waterfront hamlet" theme
of the area. The character of the area must reflect the nodal and service function of this
area. Neo-traditional styling should be adopted to intensify the area and give it the
character to anchor the area. In this sense, the Village Core could be a catalyst to the
development of the entire community.
Buildings should combine with streets cape design to create the desired atmosphere. They
should also aim to create an environment that will make the business viable year round.
4.2 Objectives
The streetscape must be designed to complement the building form of the Village Core
while maint~ining the nautical, old town theme of the area.
Buildings should be attractive and inviting while being designed to meet the needs of a
variety of users. Building themes should reinforce the theme of the area.
A high level of coordination and architectural control should be maintained to reinforce the
atmosphere while allowing for diversity of style and function.
39
The interaction between buildings, streetscape and vehicular access and parking must be
carefully designed to ensure intimacy without creating clutter and chaos.
Street systems must be designed to provide effective access suitable for the site uses and the
visitorst expectation, however the streets should recognize the pedestrian orientation of the
area.
Wherever possible, the development should take advantage of the waterfront setting and
'views.
4.3 Guidelines
Specific guidelines have been established with respect to:
Building Intensification
Streetscape in commercial core area
Parking behind commercial development
PORT DARLiNGTON
URBAN DESIGN GUIDELINES
VILLAGE CORE
Building Intensification
Objective:
to provide infill development in context of style and density of core area
Guidelines:
.
infill development to be based on assembly of lands where possible
maximum of 2 storey construction on south side of east-west collector, three storeyelsewheres
infill development to be commerciallretail or hospitality in nature
infill construction to be similar or complementary to existing buildings
maximum length of structure to be in accordance with Ontario Building Code but should be less than :t 70m
walkways and vistas to be provided through adjacent buildings ~ !
.
.
.
.
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2 - 19
PORT DARLli-iGTON
URBAN DESIGN GUIDELU-ffiS
VILLAGE CORE
Streetscape in Village Commercial Area
Objective:
to create a unique, heritage-charncter village streetscape for specialty retail; office and residential
uses.
Guidelines:
Architecture
.
encourage renovation and infill of existing cottages and homes on the south side of street
encourage development of 2 - 3 story buildings on north side of street which are in keeping with the
architectural character of the existing buildings
new buildings shall be within 2 metres of the street road allowance, to create human - scale street profile
new buildings shall have retail uses on ground floor, with residential and office uses above!
encourage decks and terraces on buildings to allow lake views
.
.
.
.
Open Space/Streetscape
.
allow on-street parking on south side of street oniy. Parking for new buiidings shail be behind the
buildings
develop a side sidewalk (5 metres) on north side of street
encourage outdoor cafes and other outdoor street life
require appropriate street trees on both sides of street, planted 7 metres on centre
encourage landscaped seating areas where appropriate highlighted by special paving, planters, floml
displays, etc.
all selected species of plant material should be proven hardy under similar waterfront conditions
require pedestrian scale street lighting and furniture that evokes an industrial port heritage theme
light standards should have the adaptability for banner arms, flower baskets, etc.
require special paving on streets, sidewalks, and crosswalks
encourage high quality signage
encourage building design that provides weather protection for pedestrians through overhangs, canopies and
awnings
.
.
e
.
..
.
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.
.
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2 - 20
PORT DARLINGTON
URBAN DESIGN GUTnELINES
VILLAGE CORE
Pnking
Obiective:
to provide attractive, functional parking areas to meet the needs of core area users vvith the
extablished on text of the area
Guidelines:
.
surface parking areas shall be subdivided into parking courts by landscape zones, minimum 2m wide,
containing seats, walkways and planting areas
each parking court shall be no more than 30-50 cars in size
special paving and pedestrian scale lighting should be used to identify all pedestrian zones ,
develop a dense, n.aturalistic buffer planting area between the parking area and the wat~r supply and
treatment plant, minimum 7m wide
.
..
.
1- 3 ?t(]vy tJu"1 IJ.'IY'fj'J
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2 - 21
Attachment 6
To Report PSD-025-07
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-xxx
being a By-law to approve the expropriation of Lots 2 and 3, Part of Lots 4, 5 and
6 and Part of the Unopened Lane between Lots 3 and 5, Block 'B', Plan H-50073,
shown as Parts 1, 2 and 3 on Plan 40R-17188, Municipality of Clarington,
Regional Municipality of Durham by the Council of the Municipality of Clarington
as the approving authority under the Expropriations Act
WHEREAS at its meeting on February 26, 2007, the Council of the Corporation of the
Municipality of Clarington considered and adopted the Reasons for Decision of the
Inquiry Officer under the Expropriations Act dated January 2, 2007 with a modification
as Council's Reasons for its Decision to approve the expropriation of the lands more
particularly described in Schedule 'A' hereto for the purposes of a district park;
NOW THEREFORE the Council of the Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the Council of the Corporation of the Municipality of Clarington as
Approving Authority under the Expropriations Act, R.S.O., 1990, c.E.26, as
amended, hereby approves the expropriation by the Corporation of the
Municipality of Clarington of the lands more particularly described in Schedule 'A'
attached hereto and forming part of this By-law.
2. THAT the Mayor and Clerk are hereby authorized, on behalf of the Council of the
Corporation of the Municipality of Clarington, to execute a Certificate of Approval
of the expropriation by the Corporation of the Municipality of Clarington of the
lands referred to in paragraph 1. Shall come into effect on the date of the
passing hereof, subject to the provisions of Section 34 of the Planning Act.
BY-LAW read a first time this 26th day of February 2007
BY-LAW read a second time this 26th day February 2007
BY-LAW read a third time and finally passed this 26th day of February 2007
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE lA'
Parcel Identification No. 26646-0020
Lot 2 Block B, Plan H50073 Newcastle; Lot 3 Block B, Plan H50073 Newcastle;
Part Lot 4 Block B, Plan H50073 Newcastle; Part Lot 5 Block B, Plan H50073
Newcastle; Part Lot 6 Block B, Plan H50073 Newcastle; Part Unopened Lane Block B,
Plan H50073 Newcastle now shown as Parts 1, 2 and 3 on Plan 10R-17188 registered
in the Land Registry Office for the Land Titles Division of Durham (No. 40).
Attachment 7
To Report PSD-025-07
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-xxx
being a By-law to authorize the Mayor and Municipal Clerk to execute the
Certificate of Approval attached as Schedule 'B' to this By-law
WHEREAS at its meeting on February 26, 2007, the Council of the Corporation of the
Municipality of Clarington approved the expropriation by the Municipality of Clarington of
Parts 1, 2 and 3 on Plan 40R-17188, the Municipality of Clarington, Regional
Municipality of Durham more particularly described in Schedule 'A' hereto;
NOW THEREFORE the Council of the Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the Mayor and Clerk are hereby authorized, on behalf of the Council of the
Corporation of the Municipality of Clarington, to execute a Certificate of Approval
contained in Schedule 'B' attached hereto and forming part of this By-law.
BY-LAW read a first time this 26th day of February 2007
BY-LAW read a second time this 26th day of February 2007
BY-LAW read a third time and finally passed this 26th day of February 2007
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE "A'
Parcel Identification No. 26646-0020
Lot 2 Block B, Plan H50073 Newcastle; Lot 3 Block B, Plan H50073 Newcastle;
Part Lot 4 Block B, Plan H50073 Newcastle; Part Lot 5 Block B, Plan H50073
Newcastle; Part Lot 6 Block B, Plan H50073 Newcastle; Part Unopened Lane Block B,
Plan H50073 Newcastle now shown as Parts 1,2 and 3 on Plan 10R-17188 registered
in the Land Registry Office for the Land Titles Division of Durham (No. 40).
SCHEDULE '8'
CERTIFICATE OF APPROVAL
IN THE MATTER OF an application by the Corporation of the Municipality of
Clarington for approval to expropriate, being a By-law to approve the expropriation of
Part Lots 2 and 3, Part of Lots 4, 5 and 6 and Part of the Unopened Lane between Lots
3 and 5, Block 'B', shown as Parts 1, 2 and 3 on Plan 40R-17188 Municipality of
Clarington, Regional Municipality of Durham by the Council of the Municipality of
Clarington as the Approving Authority under the Expropriations Act, and to authorize the
Mayor and Municipal Clerk to execute a Certificate of Approval under the aforesaid Act.
The Council of the Corporation of the Municipality of Clarington hereby certifies
that approval was given to the Corporation of the Municipality of Clarington on the 26th
day of February, 2007 to expropriate, for the purposes of a district park, the lands more
particularly described in Schedule 'A' attached hereto and forming part of this Certificate
of Approval, the registered owner of which is shown in the records of the Land Registry
Office for the Land Titles Division of Durham (No. 40) to be Chigweyaru Agbaru and
Thomas Cauchon being the land described in the application (with modifications)
DATED at Bowmanville, Ontario this 26th day of
February
2007.
The Council of the Corporation of the
Municipality of Clarington
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
NOTICE OF DECISION AND REASONS FOR DECISION
BY THE COUNCIL OF THE CORPORATION OF
THE MUNICIPALITY OF CLARINGTON
IN THE MATTER OF the Expropriations Act, R.S.O. 1990, C.E.26, as amended;
AND IN THE MATTER OF AN APPLICATION BY THE CORPORATION OF THE
MUNICIPAL TY OF CLARINGTON for approval to expropriate 50 East Beach Road
former Town of Bowmanville, now in the Municipality of Clarington, Regional
Municipality of Durham;
TAKE NOTICE THAT at its meeting on February 26, 2007, the Council of The
Corporation of the Municipality of Clarington which is the approving authority under the
Expropriations Act, considered the Reasons for Decision of the Inquiry Officer under the
Expropriations Act which were delivered to the Municipality on January 5, 2007,
respecting the proposed expropriation by The Corporation of the Municipality of
Clarington of the lands more particularly described in Schedule A hereto for the
purposes of a district park.
In its consideration of the Inquiry Officer's Reasons for Decision, Council noted that the
Inquiry Officer had conducted an inquiry as to whether the taking of 50 East Beach
Road is fair, sound and reasonably necessary in the achievement of the Municipality's
objectives in accordance with the Expropriations Act. In his Reasons for Decision,
Council considered that the Inquiry Officer had summarized the evidence that was
presented by the parties and with one exception relating to his Finding number 4, had
correctly made findings of fact based on the evidence. The exception is that the Inquiry
Officer found that a dwelling used as a "Bed and Breakfast" is permitted in the Village
Commercial area designated by the Port Darlington Neighbourhood Secondary Plan.
The Secondary Plan does not permit such a use in a Village Commercial area.
The Inquiry Officer found that subject to his Finding number 4, the proposed
expropriation for which approval was sought is fair, sound and reasonably necessary in
the achievement of the objectives of the expropriating authority, The Corporation of the
Municipality of Clarington.
Council considers that except with respect to his finding that a "Bed and Breakfast" is
permitted in a Village Commercial district designated by the Port Darlington
Neighbourhood Secondary Plan, the Inquiry Officer's Reasons for Decision are
consistent with and supported by the evidence adduced at the hearing. With the
exception of this finding and subject to Council's refusal to allow the Owners the choice
of retaining part of 50 East Beach Road for the reasons set out below, the Inquiry
Officer's reasons are adopted as the reasons of The Corporation of the Municipality of
Clarington for approving the expropriation of the whole of the aforesaid lands.
Although the Inquiry Officer found that the northerly approximate 36% of the property is
not required for the purposes of a district park and the realigned East Beach Road and
could be left in the ownership of the Owners, after considering his findings, Council
decided to include all of 50 East Beach Road as the lands, the expropriation of which
Council has approved. The reasons for Council's decision to approve the expropriation
of the whole of 50 East Beach Road, rather than allow the Owners the choice of
retaining the approximately 36% of it which will be located northerly of the realigned
East Beach Road are set out in Section 2 of Report #PSD-025-07 a copy of which is
contained in Schedule B hereto and is incorporated in these Reasons for Decision of
Council.
Accordingly, the Council of The Corporation of the Municipality of Clarington as the
approving authority under the Expropriations Act, has decided to approve the
expropriation by The Corporation of the Municipality of Clarington, as the expropriating
authority, of the whole of 50 East Beach Road, being the lands described in Schedule A
hereto.
A copy of the Certificate of Approval of the expropriation by the Council of The
Corporation of the Municipality of Clarington authorized by By-law No. 2007-058 passed
on February 26,2007, is enclosed herewith for your information.
DATED at Bowmanville, Ontario this 26th day of February 2007
The Council of The Corporation of the
Municipality of Clarington, Approving
Authority under the Expropriations Act.
SCHEDULE 'A'
Parcel Identification No. 26646-0020
Lot 2 Block B. Plan H50073 Newcastle; Lot 3 Block B. Plan H50073 Newcastle;
Part Lot 4 Block B. Plan H50073 Newcastle; Part Lot 5 Block B. Plan H50073
Newcastle; Part Lot 6 Block B. Plan H50073 Newcastle; Part Unopened Lane Block B.
Plan H50073 Newcastle now shown as Parts 1, 2 and 3 on Plan 40R-17188 registered
in the Land Registry Office for the Land Titles Division of Durham (No. 40).
Schedule '8' to Attachment 8
To Report PSD-025-07
Cl!Jl.pn
REPORT
PLANNING SERVICES
Meeting:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date:
Monday, February 19, 2007
Report #: PSD-025-07
File #: RE 6.2.7
By-law #:
Subject:
REASONS FOR DECISION OF THE INQUIR'f. OFFICER UNDER THE
EXPROPRIATIONS ACT RESPECTING THE PROPOSED EXPROPRIATION
OF 50 EAST BEACH ROAD
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report PSD-025-07 be received and APPROVED;
2. THAT Council as the approving authority under section 5(1) of the Expropriations Act
having considered the Inquiry Officer's Reasons for Decision and recommendations
including his Finding number 4, dated January 2,2007, determine that the Owners of 50
East Beach Road should not be given the choice of retaining the portion that will be
situated on the north side of the to be realigned East Beach Road comprising the
northerly approximate 36% of the area of 50 East Beach Road for the reasons set out in
Section 2 of this Report;
3. THAT Council pass a by-law to approve the proposed expropriation of the "Lands"
comprising the whole of 50 East Beach Road which are more particularly described in
Attachment 3, for the purposes of a district park;
4. THAT Council pass a by-law to authorize the Mayor and the Municipal Clerk to execute
a Certificate of Approval on behalf of Council as the approval authority as is required by
section 8(3) pf the Expropriations Act (Attachment 7);
5. THAT Council approve the Notice of Decision and Reasons for Decision of Council
contained in Attachment 7 approving the proposed expropriation of the Lands for the
purposes of a district park and authorize the Municipal Clerk to serve a copy of them on
all parties as required by section 8(2) of the Expropriations Act;
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-08
REPORT NO.: PSD-025-07
PAGE 2
6. THAT Council pass a by-law to expropriate the lands for the purposes of a district park
pursuant to section 6 of the Municipal Act, 2001 (Attachment 9);
7 . THAT Council pass a by-law to authorize the Mayor and the Municipal Clerk on behalf
of the Municipality to execute a plan of expropriation of the lands and cause the plan to
be registered in the proper land Registry Officer pursuant to section 9(1) of the
Expropriations Act (Attachment 10); and
8. THAT staff be authorized to give all necessary notices, and to take all necessary actions
to complete the expropriation.
Reviewed by:
Franklin Wu,
Chief Administrative Officer
FUDJC/df
February 14, 2007
REPORT NO.: PSD-025-07
PAGE 3
1.0 BACKGROUND
1.1 Council's approval of the recommendations contained in Report #PSD-095-04
(Attachment 1) at its meeting on June 28, 2004 authorized the commencement of the
procedures provided in the Expropriations Act for the proposed acquisition by the
Municipality of 50 East Beach Road ("Lands"). The registered owners of the Lands are
Chigweyaru Agbaru and Thomas Cauchon ("Owners"). These Lands are located north
of East Beach Road, and west of Port Darlington Road, Bowmanville.
1.2 The Owners requested that an inquiry be held under the Expropriations Act as to
whether the taking of the Lands is fair, sound and reasonably necessary in the
achievement of the objectives of the expropriating authority, the Municipality of
Clarington ("Hearing of Necessity"). The Lands in question as well as certain other lands
owned by the Municipality are outlined on Map 2b) contained in Attachment 2. The
lands owned by the Municipality lie to the south, east and west of 50 East Beach Road.
To the north of 50 East Beach Road is the Region's Water Treatment Plant and
Pollution Control Plant.
1.3 An Inquiry Officer, Mr. Harold S. Goldkind, Q.C. was appointed to conduct the Hearing
of Necessity requested by the Owners. He concluded that subject to his Finding
number 4, which is discussed in Section 2 of this Report, the proposed expropriation is
reasonably defensible and accordingly is fair, sound and reasonably necessary in the
achievement of the objectives of the expropriating authority, the Municipality of
Clarington. A copy of the Inquiry Officer's Reasons for Decision dated January 2, 2007
is contained in Attachment 3.
1.4 In Finding number 4, the Inquiry Officer recommended that the expropriating authority
consider whether the Owners should be given a choice of retaining the portion of land
on the north side of the realigned East Beach Road, as shown on Map 2a) in
Attachment 2.
1.5 The Lands comprising the whole of 50 East Beach Road are recommended by Staff to
be expropriated. They include the northerly approximate 36% adjacent to what is
proposed to be a realigned East Beach Road. The Lands are described in Attachment
4 and shown on the survey plan Map 2c) in Attachment 2.
1.6 Under the Port Darlington Neighbourhood Secondary Plan the portion of the Lands
north of the realigned East Beach Road are designated Village Commercial. Under this
designation residential uses are permitted only on the second floor of a building which
contains a permitted non-residential use. A single detached dwelling with or without a
"Bed and Breakfast" is not permitted on lands designated Village Commercial.
1.7 At present, the whole of 50 East Beach Road is zoned Residential Shoreline (RS) in the
Municipality's Comprehensive Zoning By-Law 84-63, as amended. This zoning is in
effect. It permits a single detached dwelling which may include a "Bed and Breakfast
Establishment" as an accessory use on 50 East Beach Road subject to a regulation
regarding, among other things, a minimum lot area. This zoning antedates Council's
adoption of the Port Darlington Neighbourhood Secondary Plan in 1996.
REPORT NO.: PSD-025-07
PAGE 4
1.8 If the Municipality was to expropriate only the northerly approximately 36% of 50 East
Beach Road, assuming that the Owners are given the choice to retain the area northerly
of the realigned East Beach Road, this area would comprise a new lot for zoning
purposes and would have approximately one-half of the minimum lot area required by
the Residential Shoreline (RS) zoning if a sanitary sewer is not available. A sanitary
sewer is not available currently.
1.9 Since the Port Darlington Harbour Company, Wiggers Custom Yachts and Mr. Glen
Ransom had appealed, under section 17 of the Planning Act, to the Ontario Municipal
Board the approval of Official Plan Amendment No. 39 (which amended the Port
Darlington Neighbourhood Secondary Plan) to permit, among other things, the
proposed realignment of East Beach Road north of its current alignment, and had also
requested Hearings of Necessity respecting the proposed expropriations of their
respective properties, the establishment of a Joint Board under the Consolidated
Hearings Act was required to hear and determine both the appeals under the Planning
Act and the requested Hearings of Necessity under the Expropriations Act. As a result,
the Hearing of Necessity for 50 East Beach Road was delayed until after the decision of
the Joint Board under the Consolidated Hearings Act approving Official Plan
Amendment No. 39, had been made.
1.10 Official Plan Amendment No. 39 as modified was approved by the Joint Board on the
13th day of January, 2006. It permitted the proposed realignment of East Beach Road.
The Hearing of Necessity respecting 50 East Beach Road was deferred until November
2006 to allow for negotiations between the parties to take place. They have taken place
but did not result in an agreement that could be recommended to Council by Staff. The
Hearing of Necessity was then scheduled by the Inquiry Officer.
1.11 At the Hearing of Necessity respecting 50 East Beach Road, the Municipality's witness
was Faye Langmaid, Manager of Special Projects. Ms. Agbaru and Mr. Cauchon
represented themselves. Thirteen exhibits in support of proving the necessity of
acquiring 50 East Beach Road were tendered as evidence by the Municipality at the
Hearing. The exhibits included the Port Darlington Neighbourhood Secondary Plan as
amended by Official Plan Amendment No. 39 and excerpts from the Municipality's
Comprehensive Zoning By-law.
1.12 The Inquiry Officer found that the part of the Lands which would be adjacent to the north
limit of the realigned East Beach Road is not required for the purposes of the district
park. This part is designated Village Commercial in the Port Darlington Neighbourhood
Secondary Plan. In the Inquiry Officer's opinion, there is no requirement for public
ownership of this part for the purpose of development of the district park.
1.13 At the Hearing of Necessity, the Owners had proposed that their land not be
incorporated into the district park and that they retain all or part of their land for
residential use and future Village Commercial use such as a "Bed and Breakfast".
Against this background, the Inquiry Officer made his finding that a residential use with
a "Bed and Breakfast" was permitted in a Village Commercial area under the Port
Darlington Neighbourhood Secondary Plan. He then recommended that the Municipality
consider whether the Owners should be given a choice of retaining the portion of land
REPORT NO.: PSD-025-07
PAGE 5
on the north side of the realigned East Beach Road (See Finding number 4 on Pages
11 and 12 of Attachment 3).
1.14 I n Staff's view, the Inquiry Officer erred in finding that a residential dwelling with a "Bed
and Breakfast" would be permitted in a Village Commercial area under the Port
Darlington Neighbourhood Secondary Plan. While as noted above, this use is permitted
by the Zoning By-law in a Residential Shoreline (RS) zone if it is contained in a single
detached dwelling, and the applicable zoning regulations are satisfied. However, a Bed
and Breakfast Establishment is not a permitted use if it is contained in a residential
dwelling in a Village Commercial area. For a Bed and Breakfast Establishment to be
contained in a residential dwelling in a Village Commercial area, the Secondary Plan as
well as the Zoning By-law would have to be amended.
1.15 In his Reasons for Decision, the Inquiry Officer referred to Ms. Langmaid's evidence
that there were certain difficulties associated with expropriating less than the whole of
the Owners' property. In reviewing the difficulties that would result if the Owners were
given the choice of retaining the northerly approximate 36% of the area of 50 East
Beach Road, Staff believe these difficulties are virtually insurmountable for the reasons
outlined in Section 2 of this Report.
1.16 Under section 8(1) of the Expropriations Act, the approving authority, in this case,
Council is required to consider the Report of the Inquiry Officer and approve it, not
approve it, or approve it with one or more modifications, that the Municipality considers
appropriate. Under section 8(2) of the Act, the Municipality is required to give written
reasons for its decision and to cause the decision and reasons for it to be served on all
the parties and on the Inquiry Officer within 90 days after the date (January 5, 2007) on
which the Municipality received delivery of the report of the Inquiry Officer.
1.17 Section 9 of the Expropriations Act requires that Municipality, within 3 months after the
granting of approval register in the land registry office a plan of expropriation. On the
registration of the plan of expropriation, within the 3 months period, but not otherwise,
title to the expropriated land vests in the Municipality.
2.0 APPROVAL OF PROPOSED EXPROPRIA liON
2.1 In Finding number 4 of his Reasons for Decision, the Inquiry Officer recommended that
the Municipality consider whether the Owners be given a choice of retaining the portion
of 50 East Beach Road that will be on the north side of the proposed realigned East
Beach Road. At the Hearing of Necessity, Ms. Agbaru had testified that when she and
Mr. Cauchon originally purchased 50 East Beach Road with the dwelling on it, they did
so with the idea of converting it into a "Bed and Breakfast" in the future. In reviewing
the Inquiry Officer's recommendation, Staff examined the potential and practical
difficulties and costs for the Municipality to provide the Owners with this choice. For the
reasons that follow, Staff recommend that after considering the Inquiry Officer's
Reasons for Decision and this Report, Council refuse to give the Owners the choice of
retaining the portion of 50 East Beach Road northerly of the realigned East Beach
Road.
REPORT NO.: PSD-025-07
PAGE 6
2.2 The current zoning of the whole of 50 East Beach Road is Residential Shoreline (RS).
In this zone, the permitted uses are single detached dwellings, seasonal dwellings and
certain home occupation uses subject to certain regulations respecting such matters as
minimum lot area (2,800 square metres) and minimum area of a single detached
dwelling (110 square metres). Accessory uses to the main use are permitted. A "Bed
and Breakfast Establishment" is a permitted accessory use in a dwelling consisting of
three guest rooms in which the proprietor resides and which caters to the needs of the
traveling public by furnishing temporary sleeping accommodations. The main use of a
dwelling in which a "Bed and Breakfast Establishment" may be established must be a
residential use in order to satisfy the Zoning By-law's definition of the term "dwelling".
2.3 The Residential Shoreline (RS) and "Bed and Breakfast Establishment" provisions of
the Zoning By-law antedate the adoption of the Port Darlington Neighbourhood
Secondary Plan. They do not conform with the designation of 50 East Beach Road as
Village Commercial in the Secondary Plan.
2.4 If the effect of the proposed expropriation is to reduce the area of 50 East Beach Road
by 64%, the result would be that the northerly approximate 36% of it would comprise a
new "lot" for the purpose of the Zoning By-law. The new lot would not satisfy the
minimum area requirement of the existing Residential Shoreline (RS) zone unless the
By-law was amended to reduce the minimum lot area requirement to approximately one
half of the current requirement. Such an amendment would not be in the public interest.
The purpose of the current minimum lot area requirement is to provide adequate space
for a dwelling unit, a septic bed and a reserve area for a septic bed. While the existing
lot (that is, the whole of 50 East Beach Road) has water service, there is no sanitary
sewer in the area. When East Beach Road is realigned, the sanitary sewer probably
will not be extended until there is sufficient development in the residential area to the
east to warrant the construction of the sanitary sewer. The timing of this residential
development and the provision of this sanitary sewer is not known. Also, apart from the
lack of a sanitary sewer, the new lot would be undevelopable until East Beach Road is
realigned as the new lot would not have frontage on a public road, a requirement of the
Zoning By-law for any lot that is to be built upon.
2.5 Before East Beach Road can be realigned, the Environmental Assessment Act will have
to be complied with. It requires, among other things, that an Environmental Study
Report be prepared and approved under the Class Rules contained in the' Regulations
made under the Act. Determining the northerly limit of the realigned East Beach Road
in the absence of this Study would be premature and could limit the alternatives
available to the Municipality to satisfy its obligations under the Act and Regulations. It
would be inappropriate at this time for the Municipality to attempt to establish the
location of the road in advance of such approval being given under the Environmental
Assessment Act. Until the specific northerly boundary of the realigned East Beach
Road is established, it would be impossible to describe the southerly limit of the new lot
with precision. The precise area of the new lot is an important consideration under the
Zoning By-law for making a development decision.
REPORT NO.: PSD-025-07
PAGE 7
2.6 Currently, the timing of the realignment of East Beach Road and the timing of the
development of the Village Commercial are unknown. Also, as indicated above, the
timing of development of the lands designated Village Commercial is unknown.
2.7 The Port Darlington Neighbourhood Secondary Plan was the result of extensive public
input spanning over 3 years. The Secondary Plan was adopted at the same time (1996)
as the Official Plan, which also had extensive public input and review. The area
designated Village Commercial is a key element of the Secondary Plan.
2.8 The Port Darlington Neighbourhood Secondary Plan limits the geographic extent of the
Village Commercial area; establishes the maximum amount of gross leasable area for
retail and personal services to 1,500 square metres, and requires all construction to be
limited to two storeys. As shown on Map 2a) contained in Attachment 2, the conceptual
layout of the Village Commercial along the realigned East Beach Road is a continuous
strip of similar buildings with architectural venestrations that reflect the historical
character of the area and conform to the urban design guidelines as discussed in
Section 2.12.
2.9 The permitted uses in a Village Commercial area are retail and personal service uses,
retail specialty shops and studio facilities, restaurants, office and related uses and
residential uses incidental to the main use of the lot. In order for the Owners to have a
"Bed and Breakfast" dwelling on the new lot, an Official Plan Amendment would be
required. To amend the Secondary Plan on a site specific basis to permit a "Bread and
Breakfast" dwelling on the new lot would not be consistent with the intent of the Village
Commercial designation given its limited geographic extent of the area so designated.
It is not recommended by Staff.
2.10 The designation of the Village Commercial area in the Port Darlington Neighbourhood
Secondary Plan was the subject of careful consideration in the context of the
surrounding uses. The Village Commercial area is adjacent to the Region's Water
Treatment Plant and the Region's Pollution Control Plant. The class Environmental
Assessment for the expansion of the Pollution Control Plant has been underway for the
past 18 months. The area designated Village Commercial abuts the 150 metre buffer
for the Pollution Control Plant, providing that the preferred option that is currently under
consideration is approved.
2.11 Having a single detached dwelling with a "Bed and Breakfast" use in the middle of this
strip of Village Commercial would not provide for the street character, ambience and
activity that the Village Commercial area is to provide. Although as is noted above,
residential uses are permitted on the second floor of a building within the Village
Commercial area, this must be incidental to the main non-residential use. It would not
be possible without amending the Secondary Plan and the Zoning By-law to establish a
"Bed and Breakfast" in a dwelling located on the second floor of a dwelling. Any
amendments of either the Secondary Plan or the Zoning By-law would require the
completion of the full public participation process required by the Planning Act and the
Official Plan before Council could consider approving or passing them. It would be
premature to do so in the context of considering this Report.
REPORT NO.: PSD-025-07
PAGE 8
2.12 The general policies of the Port Darlington Neighbourhood Secondary Plan call for
Urban Design Guidelines to implement the policies of the Secondary Plan and act as a
visual interpretation of future development proposals. While urban design guidelines
have not been adopted by Council, a preliminary implementation strategy was set out in
the background work to the Secondary Plan (Attachment 5). The urban design concept
is not consistent with the establishment of a dwelling in which a "Bed and Breakfast
Establishment" is permitted as an accessory use.
2.13 A "Bed and Breakfast Establishment" in a dwelling is not a permitted use on a new lot
comprising the northerly approximately 36% of 50 East Beach Road unless the Village
Commercial designation of 50 East Beach Road is amended to permit it and the
minimum lot area requirement of the Zoning By-law for a property zoned Residential
Shoreline (RS) which is not serviced by a sanitary sewer, is amended. Any amendment
to the Zoning By-law is required to conform with the Port Darlington Neighbourhood
Secondary Plan.
2.14 Staff are concerned that if the southerly approximate 64% of 50 East Beach Road only
was expropriated there could be significant costs to the Municipality in addition to the
cost of expropriation of that area. The additional costs could include damages that the
Municipality could be required to pay the Owners for injurious affection to the remaining
approximate 36% of 50 East Beach Road. Additionally, the cost per square metre of
the southerly approximate 64% could increase as a result of a partial taking.
2.15 Staff recommend that the whole of 50 East Beach Road be expropriated since the
acquisition of the whole of 50 East Beach Road will probably be at a more reasonable
price and on terms that are more advantageous than those on which the Municipality
could obtain the southerly approximate 64% of 50 East Beach Road. Any surplus lands
could be sold by the Municipality subject to the right of first refusal that Expropriated
Owners would have under the Expropriations Act.
3.0 SUMMARY AND CONCLUSIONS
3.1 In his Reasons for Decision, the Inquiry Officer fairly summarized the evidence and
made findings of fact based on that evidence. At page 13 of his Reasons for Decision,
he stated:
"Subject to my recommendation set out in Finding number 4, I find that the
proposed expropriation is reasonably defensible and accordingly fair, sound
and reasonably necessary in the achievement of the objectives of the
expropriating authority.
3.2 It is recommended that Council, as the approving authority under subsection 5(1) of the
Expropriations Act, having considered the Reasons for Decision of the Inquiry Officer
adopt them save and except those related to Finding number 4, and his finding
regarding permitted uses in a Village Commercial area, as Council's own reasons for
approving the expropriation. It is recommended that Council approve the proposed
expropriation of the whole of 50 East Beach Road for the reasons set out in Section 2 of
REPORT NO.: PSD-025-07
PAGE 9
this Report. It is also recommended that Council pass a by-law (Attachment 6) under
the Expropriations Act to approve the proposed expropriation of the 50 East Beach
Road for the purposes of a district park, and pass a by-law to authorize the Mayor and
the Municipal Clerk execute the Certificate of Approval as required by the Act
(Attachment 7).
3.3 It is recommended that Council authorize the Municipal Clerk to cause the Notice of
Decision and Reasons for Decision of Council approving the proposed expropriation to
be served upon all of the parties as is required by section 8(2) of the Expropriations Act.
Copies of the draft Notice and Reasons for Decision are contained in Attachment 8.
3.4 It is recommended that Council pass a by-law under section 6 of the Municipal Act,
2001 to expropriate the whole of 50 East Beach Road for the purposes of a district park
(Attachment 9).
3.5 It is further recommended that Council pass a by-law to authorize the Mayor and the
Municipal Clerk on behalf of the Municipality to execute a plan of expropriation of the
whole of 50 East Beach Road and authorize its registration in the proper land registry
office pursuant to section 9(1) of the Expropriations Act (Attachment 10).
3.6 If Council approves the proposed expropriation it will be completed by the registration in
the Land Registry office of the plan of the Lands which are expropriated. Under the
Expropriations Act, title is transferred to the Municipality on the registration of the plan,
and the owner's rights are converted by the Act from a right in the land expropriated to a
right to be paid market value compensation plus compensation for any damage
resulting from injurious affection and other items of damages as set out in the Act.
3.7 It should be noted that under the Expropriations Act the Municipality cannot obtain
possession of the land expropriated until notices are served on the registered owner of
the expropriation which require possession of the land expropriated to be given to the
Municipality on a specified date. That date must be at least 3 months after the date of
service of the notice of possession. Before taking possession of the land, section 25(1)
of the Act requires that the expropriating authority serve upon the registered owner an
offer of an amount in full compensation for the owner's interest and offer immediate
payment of 100% of the amount of the estimated market value of the owner's interest.
This offer must be served within 3 months of the registration of the plan. Staff will report
subsequently on a notice of possession respecting 50 East Beach Road.
REPORT NO.: PSD-025-07
PAGE 10
Attachments:
Attachment 1 - Report #PSD-095-04
Attachment 2 - Maps 2a), 2b), 2c)
Attachment 3 - Reasons for Decision of the Inquiry Officer dated January 2, 2007
Attachment 4 - Description of 50 East Beach Road
Attachment 5 - Excerpt from the Implementation Strategy for Port Darlington Area, Feb 1992.
Attachment 6 - By-law to approve expropriation under Expropriations Act and to authorize
execution of Certificate of Approval of Expropriation
Attachment 7 - By-law to authorize execution of Certificate of Approval of Expropriation
Attachment 8 - Notice of Decision and Reasons for Decision of Council
Attachment 9 - By-law to expropriate Lands for a district park under the Municipal Act, 2001
Attachment 10 - By-law to authorize execution and registration on title of expropriation plan
Interested parties to be notified of Council's decision:
Mr. Andy Wiggers, Port Darlington Harbour Company
Port Darlington Community Association, CIO Ms. Glenda Geis
Thomas Cauchon and Chigweyaru Agbaru
Kevin Taylor
Rose Savage
Stephen Waque, Borden Ladner Gervais, LLP
Les Coleman
Chris Williams, Aird & Berlis
Mr. Michael Melling, Davies Howe Partners
Attachment 9
To Report PSD-025-07
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-xxx
being a By-law to authorize the expropriation of Parts 1, 2 and 3 on Plan 40R-
17188 the Municipality of Clarington, Regional Municipality of Durham pursuant
to the Municipal Act, 2001, S.O. 2001
WHEREAS at its meeting on February 26, 2007, the Council of the Corporation of the
Municipality of Clarington passed By-law 2007-xxx approving the expropriation of the
lands more particularly described in Schedule 'A' hereto;
NOW THEREFORE the Council of the Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the land more particularly described in Schedule 'A' attached hereto and
forming part of this By-law, the registered owner of which is shown on the Parcel
Registered in the Land Registry Office for the Land Titles Division of Durham
(No. 40) to be owned in fee simple by Chigweyaru Agbaru and Thomas Cauchon
is hereby expropriated for the purposes of a district park pursuant to the
Municipal Act, 2001, S.O. 2001, c.25.
BY-LAW read a first time this 26th day of February 2007
BY-LAW read a second time this 26th day of February 2007
BY-LAW read a third time and finally passed this 26th day of February 2007
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE 'A'
Parcel Identification No. 26646-0020
Lot 2 Block B, Plan H50073 Newcastle; Lot 3 Block B, Plan H50073 Newcastle;
Part Lot 4 Block B, Plan H50073 Newcastle; Part Lot 5 Block B, Plan H50073
Newcastle; Part Lot 6 Block B, Plan H50073 Newcastle; Part Unopened Lane Block B,
Plan H50073 Newcastle now shown as Parts 1, 2 and 3 on Plan 10R-17188 registered
in the Land Registry Office for the Land Titles Division of Durham (No. 40).
Attachment 10
To Report PSD-025-07
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-xxx
being a By-law to authorize the Mayor and Clerk, on behalf of the Municipality of
Clarington, to execute an expropriation plan of Lots 2 and 3, Part of Lots 4, 5 and
6 and part of the Unopened Lane between Lots 3 and 5, Block 'B', Plan H-50073,
shown as Parts 1, 2 and 3, on Plan 40R-17188, Municipality of Clarington,
Regional Municipality of Durham
WHEREAS at its meeting on February 26, 2007, the Council of the Corporation of the
Municipality of Clarington, approved the recommendations contained in Report PSD-
025-07, and approved the expropriation of the lands more particularly in Schedule 'A'
hereto;
AND WHEREAS at its meeting on February 26, 2007, Council passed By-law No.
2007 -xxx approving the aforesaid expropriation;
AND WHEREAS at its meeting on February 26,2007, Council also passed By-law No.
2007-xxx pursuant to the Municipal Act, 2001, S.O. 2001, c.25, as amended, to
expropriate the aforesaid lands;
NOW THEREFORE the Council of the Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the Mayor and Municipal Clerk are hereby authorized, on behalf of the
Council of the Corporation of the Municipality of Clarington, to execute plan of
expropriation showing the lands more particularly described in Schedule 'A'
attached hereto and forming part of this By-law, the registered owner in fee
simple of which is shown on the Parcel Registered in the Land Registry Office for
the Land Titles Division of Durham (No. 40) to be Chigweyaru Agbaru and
Thomas Cauchon.
2. THAT the Mayor and Municipal Clerk are authorized, on behalf of the
Corporation of the Municipality of Clarington, to cause the aforesaid expropriation
plan to be registered in the proper Land Registry Office pursuant to Section 9(1)
of the Expropriations Act.
BY-LAW read a first time this 26th day of February 2007
BY-LAW read a second time this 26th day of February 2007
BY-LAW read a third time and finally passed this 26th day of February 2007
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE 'A'
Parcel Identification No. 26646-0020
Lot 2 Block B, Plan H50073 Newcastle; Lot 3 Block B, Plan H50073 Newcastle;
Part Lot 4 Block B, Plan H50073 Newcastle; Part Lot 5 Block B, Plan H50073
Newcastle; Part Lot 6 Block B, Plan H50073 Newcastle; Part Unopened Lane Block B,
Plan H50073 Newcastle now shown as Parts 1, 2 and 3 on Plan 1 OR-17188 registered
in the Land Registry Office for the Land Titles Division of Durham (No. 40).