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HomeMy WebLinkAboutPSD-023-07 Cl!JlhJgton REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, February 19, 2007 G pl1 __ 10 C)~. 0-; Report #: PSD-023-07 File #: COPA 2005-005, COPA 2005-006 By-law #: ZBA 2005-021 Subject: DECISION OF THE ONTARIO MUNICIPAL BOARD MOTION TO DISMISS THE APPEAL BY LOBLAWS PROPERTIES LTD. OF ZONING BY-LAW 2006-047 BOWMANVILLE WEST TOWN CENTRE RECOMMENDATIONS: It is respectfully recommended to Council the following: 1. THAT Report PSD-023-07 be received for information. Submitted by: vi J. Crome, M.C.I.P., R.P.P. Director of Planning Services A --e.Y ~ ;r" \--t Reviewed by: ~ LX--> L.t.. Franklin Wu, Chief Administrative Officer CP*DJC*df 14 February 2007 CORPORATION OF THE MUNICIPALITY OF ClARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 Cl@lJglon REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, February 19,2007 Report #: PSD-023-07 File #: COPA 2005-005, COPA 2005-006 By-law #: ZBA 2005-021 Subject: DECISION OF THE ONTARIO MUNICIPAL BOARD MOTION TO DISMISS THE APPEAL BY LOBLAWS PROPERTIES LTD. OF ZONING BY-LAW 2006-047 BOWMANVILLE WEST TOWN CENTRE RECOMMENDATIONS: It is respectfully recommended to Council the following: 1. THAT Report PSD-023-07 be received for information. Submitted by: Reviewed bY:~-€-O':= ~ Franklin Wu, Chief Administrative Officer CP*DJC*df 14 February 2007 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: PSD-023-07 PAGE 2 1. In late October of 2006 Halloway Holdings Ltd. (Halloway) initiated proceedings to bring a motion to the Ontario Municipal Board to have the appeal of Zoning By-law 2006-047 by Loblaw Properties Inc. (Loblaws) dismissed without a hearing. At that time Loblaw's appeal affected all of the lands covered by Zoning By-law 2006-047. Discussions between representatives of Loblaws, Halloway, and the Municipality allowed the appeal by Loblaws to be scoped to specific issues. The scoped appeal related to the total floor area permission on the Clarington Centre lands, including the existing Loblaws property; and the permission for a supermarket on the Halloway lands, located on the northeast corner of Green Road and Highway 2. 2. The Executive Vice Chair of the Ontario Municipal Board conducted the motion hearing in mid-January in Toronto. The motion brought by Halloway was supported by the Municipality with the full participation of the Municipality's solicitor and affidavit evidence prepared by the Municipality's market and planning consultants. The thrust of the motion was that there were not legitimate planning issues to be litigated in front of the OMB. 3. The Board's decision was released on February 8,2007. The Board found that: · the zoning by-law is consistent with the new Official Plan policies. The market and the consumers demands is allowed to determine the type and amount of retail within the set framework of the Official Plan; . a hearing on the zoning by-law would lead to a revisit of a concern considered at the previous motion hearing on Official Plan Amendments 43 and 44, the subject of the joint appeal of Zellers and the Bowmanville BIA. It is an issue that should no longer "haunt" the Municipality that has transformed itself through studies and a purposeful commercial policy review. A hearing would be tantamount to reviewing a settled matter; . the Municipality has within its arsenal built-form controls, urban design and traffic controls and the requisite authority over Halloway so that they cannot proceed "carte blanche" as suggested by Loblaws; and . the issue of fairness raised by Loblaws is largely irrelevant; there may be some inequity involved (Le. Halloway did not have to justify a supermarket through the market study) but the planned function would not be affected if indeed a supermarket was to locate on the Halloway lands. The OMB concluded that there is no apparent planning reason for a hearing and ordered the dismissal of the appeal without a hearing. 4. Halloway has subsequently advised the Board and Loblaws of their intention to pursue a further motion for costs against Loblaws. 5. All of the Official Plan changes and the new zoning for the West Bowmanville Town Centre are now in force. The only outstanding appeal of OPA 43 is by A YT Corporation. This appeal only affects the lands located to at Bennett road north of Highway 401. This hearing has yet to be scheduled. Attachment 1 - OMB Decision dated February 8, 2006 Attachment 1 To Report PSD-023-07 0347 ~ Ontario Ontario Municipal Board Commission des affaires municipales de I'Ontario PL031180 PL040131 PL040041 PL060287 ISSUE DATE: February 8, 2007 DECISION/ORDER NO: West Diamond Properties Inc. and Players Business Park Ltd. have appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, RS.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to Zoning By-law 84-63 of the Municipality of Clarington to rezone lands respecting Part of Lot 17, Concession 1 and 2 to permit the development a commercial centre including a discount department store and a supermarket OMB File No: Z030175 (PL031180) West Diamond Properties Inc. and Players Business Park Ltd. have appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, RS.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to the Official Plan for the Municipality of Clarington to redesignate land on Part of Lot 17, Concession 1 and 2 to permit the development a commercial centre including a discount department store and a supermarket OMB File No: 0030411 (PL031180) Halloway Holdings Limited has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, RS.O. 1990, c. P .13, as amended, from Council's refusal or neglect to enact a proposed amendment to Zoning By-law 84-63 of the Municipality of Clarington to rezone lands respecting Part of Lot 16, Concession 1 to permit the development of a commercial plaza OMB File No: Z040023 (PL040131) Halloway Holdings Limited has appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, RS.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to the Official Plan for the Municipality of Clarington to redesignate land on Part of Lot 16, Concession 1 to permit the development of a commercial plaza OMB File No: 0040032 (PL040131) Loblaw Properties Limited has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, RS.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to Zoning By-law 84-63 of the Municipality of Clarington to rezone lands respecting Part of Lot 16, Concession 1, municipally known as 2375 Highway No. 2, by removing the requirement for a supermarket OMB File No: Z040005 (PL040041) Loblaw Properties Limited has appealed to the Ontario Municipal Board under subsection 34(19) of the Planning Act, RS.O. 1990, c. P. 13, as amended, against Zoning By-law 2006-047 of the Municipality of Clarington OMB File No. R060067 (PL060287) Halloway Holdings Limited will bring a motion to dismiss, without a full hearing, the appeal of Loblaw Properties Limited of Zoning By-law 2006-047 of the Municipality of Clarington. APPEARANCES: - 2 - PL031180 PL040131 PL040041 PL060287 Parties Counsel Municipality of Clarington D. C. Hefferon Halloway Holdings Limited S. D. Rogers Loblaw Properties Limited S. A. Zakem P. J. Harrington DECISION ON A MOTION TO DISMISS DELIVERED BY S. W. LEE This motion to dismiss pursuant to Subsection 34( 25) of the Planning Act was made by Halloway Holdings, owner of lands at the north-east corner of Green Road and Highway 2 in the Municipality of Clarington. The motion is aimed to dismiss without a hearing the appeal to Zoning By-law 2006-047 launched by Loblaw Properties Limited. The latter operates its business at the south-east corner of Green Road and Highway 2. Both Halloway Holdings and the Loblaw store are located within the Bowmanville West Town Centre. Zoning By-law 2006-047 was enacted simultaneously with OPA 43, OPA 44 on March 1, 2006, which affects the Bowmanville West Town Centre. In an earlier Board decision, of which I was the presiding member (Decision/Order No. 2363), the Board had granted the motion to dismiss without a hearing as requested by the Town, and supported by West Diamond, Halloway and Loblaw. Those other appeals had been launched by Zeller's with respect to OPA 43, 44 and By-law 2006-047. It was the position of the applicant of this motion that the policies of OPA 43 and 44 would not specify any particular type of retail space or whether supermarket use must locate on any particular parcel of lands in the Bowmanville West Town Centre other than the locations for home improvement centres and the banking institutions. - 3 - PL031180 PL040131 PL040041 PL060287 The appeal of Loblaw to By-law 2006-047, according to counsel for Halloway, is to challenge the fact that the zoning would permit a supermarket on the Halloway site. It is contended that Loblaw attempted to re-introduce the question of market justification for Halloway's lands, which, in her view, should no longer be an issue. She alleges that based on the history of the players involved, Loblaw is really attempting to prevent another actor to enter into the market place and curb business competition in the supermarket retail. To hold a hearing will in fact allow the market competition to supplant planning. It is her position that no land use planning ground has been revealed in this appeal. In fact, all the indicia points to the direction that the hearing is done for the purpose of delay. This position was supported by counsel for the Municipality of Clarington. Mr. Hefferon emphasised that the OPA 43 and 44 allowed for a "flexible control" in the type and size of the retail except through an overall population related gross floor leasable space limits. He strongly urged the Board to consider the fact that what was being requested by Loblaw has in fact been the position put forward by Mr. Joseph in the earlier hearing involving the dismissal of Zellers' appeals. In allowing the application to succeed, the Board, in his opinion, would act consistently and in harmony with the planning approach adopted by the two OPAs. Counsel for Loblaw indicated to the Board that it seeks equity and equal treatment through its process. In their opinion, throughout its review, Loblaw has been forthright, co-operative and subject itself to extensive study and review when it proposed for a Real Canadian Superstore. Halloway, on the other hand, seems, in their opinion, to be getting away with a lot: not only in the right to have a supermarket, but in terms of phasing or design control. In addressing the question whether there are apparent planning grounds worthy of adjudication, I am familiar with the requisite jurisprudence underlying such motions. I am always cognizant that before allowing the motion, the Board must not rush to judgement easily and that care and vigilance must be maintained so that the meritorious appeals would not be swept away by zealous applicants. In the leading case of East Beach v. Toronto ( 1996) C.M.B.D. No.1890, the panel of that decision, of which I was a presiding member, has this to say: - 4 - PL031180 PL040131 PL040041 PL060287 The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with iron-clad reasons for fear of being struck down. What these particular provisions allow the Board to do is seek out whether there is authenticity in the reasons stated, whether there are issues that should affect a decision in a hearing and whether the issues are worthy of the adjudicative process. East Beach Community Assn v. Toronto (City), [1996] O.M.B.D. No. 1890 as para. 9 (O.M.B.) I reviewed the arguments and the history of the impugned planning process of this case carefully and have come to the following conclusions: Firstly, an important Commercial Policy Review undertaken by the municipality had been completed. Out of these painstaking efforts, the three aforesaid planning instruments were born. Through OPA 43 and 44, Clarington has established the retail limits in the Bowmanville West Town Centre and a population threshold. OPA 44 sets out the maximum gross floor space limits for each of the 5 parcels of lands within the secondary plan area. Specifically, they do not, with the exception of financial institution and home improvement centre, establish any restriction of any particular type of retail in the area. That approach of allowing the market and the consumer's demand to determine the type and amount of retail within a set framework instead of the deployment of a market study for any particular kind of retail use is consistent with the conclusions of the CPR. It is my finding that a challenge to the By-law 2006-047 to allow a supermarket to proceed is inconsistent with the underlying OP policies for flexible control and which do not proscribe against such an inclusion. Additionally, the planning instrument hierarchy would make such a challenge an anomaly, as what would be before the Board is only the zoning by-law. Secondly, as a corollary, the decision against the proscription of the particular retail formats and merchandise ought not to be revisited in a zoning appeal. In other words, if this Board were to allow the hearing of the zoning by-law to proceed, it would by necessity have to go over a concern that should no longer haunt a municipality that has transformed itself through a studied and purposeful commercial policy review. To - 5 - PL031180 PL040131 PL040041 PL060287 allow a hearing to proceed on such a basis is tantamount to reviewing a settled matter, and will in turn play havoc to the overall planning framework, which has been refined and finalized at great efforts. I note that Mr. Zakem expressed his dissatisfaction that Halloway could have brought this motion earlier when the first motion to dismiss was heard. I do have sympathy. However, I do want to point out that Loblaw at that motion did ally itself with the Town and Halloway in the skirmish against Zellers. The realm of planning does resemble life sometimes in its everlasting irony: there are no permanent friends or enemies, there are only permanent interests. Thirdly, I find that the municipality has within its arsenal built-forms control, urban designs and traffic controls. In other words, this is not a carte blanche where Halloway can proceed with impunity and without any further municipal input. In fact, after hearing what was told by Mr. Zakem, I expect and would encourage the municipality to exercise its requisite authority comprehensively through development controls and any other legal device to calibrate and control the pace and form in accordance with any service and infrastructure constraints and design criteria in dealing with any future Halloway development plans. There should not be any impediment for Clarington, if a specific proposal is brought forward, to ask for control mechanisms which may even necessitate a site specific amendment. At present, there is no specific plan that would allow for such evaluations on the Halloway lands. Fourthly, the primary argument of Mr. Zakem against the granting of the motion is based on what he considers the unfairness of the present situations. He went back on the chronology of the planning applications with respect to the West Diamond site, the Halloway site and the Clarington Centre. He requested the Board to come to the conclusion that through the entire process, it was never anticipated that the Halloway site would have a supermarket use. He maintains that his is not a case of jostling for his client's market share for supermarket. He pointed out that Halloway got an undue advantage over the other players. In his submission, he pointed out that while West Diamond had to phase in their retail developments, and complied with urban design requirements, Halloway got an edge over everyone else. As a minimum, Mr. Zakem and his co-counsel requested the Board to allow a hearing so that all these misgivings and apparent inequities can be fully aired. - 6 - PL031180 PL040131 PL040041 PL060287 Whether we agree or not on those afore-mentioned is, in my view, largely irrelevant. There may be some "inequity" involved, as depicted by Mr. Zakem and I take notice of the fact there had been a prior private agreement with the players about location and the distance of co-location of supermarkets. I also take notice that this motion was not brought on earlier. However, there is an overarching question before one rushes headlong to a hearing of this nature: how is the planned function to be affected if indeed a supermarket is to proceed and how that question should configure as a legitimate concern. The Board heard very little from the respondent to this motion in that connection. In our view, the conclusions of the CPR are designed to wean the need of calling for a market study of a certain retail format. That goal should not be readily defeated or overcome just because there were irritants amongst the key players. For these reasons, the Board is satisfied that there is no apparent planning reasons for the hearing and will allow the motion and orders the dismissal of the appeal without a hearing. Requests for cost awards have been hinted at the closing of the arguments. Naturally, the parties need to evaluate their positions after considering the outcome of this motion and assessing what I said. While I am ready to hear the applications, I would be much obliged if counsel can be more solicitous and prevail on their clients the need for some sober reflections. There would be a great deal of strives and costs waiting ahead if the legal proceeding discussed earlier in my decision were to ripen. "S. W. Lee" S. W. LEE MEMBER