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HomeMy WebLinkAboutPSD-032-07 CJ~n REPORT PLANNING SERVICES Meeting: Date: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Monday March 5, 2007 GPA -'/~CJ-O'7. By-law #: ::)..CJO) -O~::I :;X)[fj- 0 h 'I . IMPLEMENTATION OF PRINCIPLES OF UNDERSTANDING WITH HALLOWAY HOLDINGS LIMITED: TRANSFER OF CERTAIN RESERVES File #: SPA 2005-022 Report #: PSD-032-07 Subject: RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Council receive and approve this report; 2. THAT Council pass a by-law declaring the lands shown as Parts 2, 3, 4, 5 and 6 on Reference Plan 40R-24257 to be surplus (Attachment 4); 3. THAT subject to Recommendation 4, after notice is given to the public pursuant to By- law 95-22 of the proposed sale of Parts 2, 3, 4, 5 and 6 on Reference Plan 40R-24257 to Halloway Holdings Limited for a nominal consideration, Council pass a by-law to authorize the Mayor and Municipal Clerk on behalf of the Municipality of Clarington to execute the transfer of Parts 2, 3, 4, 5 and 6 on Reference Plan 40R-24257 to Halloway Holdings Limited for a nominal consideration (Attachment 5); 4. THAT Staff and the Municipality's solicitor be directed to complete the transfer referred to in Recommendation 3 after the payment referred to in paragraph 8 of the Principles of Understanding dated March 1, 2006 between the Municipality of Clarington and Halloway Holdings Limited ("Halloway Principles") has been made to the Municipality in accordance with the aforesaid paragraph 8; and 5. THAT Staff and the Municipality's Solicitor be authorized to take all necessary actions to implement the intent of paragraphs 8 and 10 of the Halloway Principles. Submitted by: David . Crome, M.C.I.P., R.P.P. Director of Planning Services Reviewed by: C~ ~ Franklin Wu, Chief Administrative Officer DJC*sn February 27, 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-032-07 PAGE 2 1.0 BACKGROUND 1.1 At its meeting held on March 1, 2006, Council approved the recommendations contained in Report PSD-027 -06. At that time, Council adopted Official Plan Amendment 43 to implement the Commercial Policy Review for the Municipality and also adopted Official Plan Amendment 44 to amend the Bowmanville West Town Centre Secondary Plan. At the meeting, Council also passed Zoning By-law Amendment 2006- 047 which, among other things, implemented the Bowmanville West Town Centre Secondary Plan, as amended and the Principles of Understanding between Halloway Holdings Limited ("Halloway") and the Municipality dated March 1, 2006 ("Halloway Principles") as they apply to the Halloway lands as generally described below. 1.2 The Halloway Principles deal with the development of Halloway's lands located between Regional Highway No.2, Green Road, the unopened Concession 2 Road Allowance and Clarington Boulevard shown on the map contained in Attachment 1 ("Halloway Lands"). The development is to include a home improvement store proposed to be owned and operated by Home Depot. The development of the Halloway Lands is shown on the Concept Plan for Development contained in Schedule C of the Halloway Principles. The Concept Plan for Development is also contained in Attachment 2 to this report. 1.3 Prior to Official Plan Amendment 44 coming into force, the Bowmanville West Main Central Area Secondary Plan had provided for Uptown Avenue to be extended north- westerly through the proposed Home Depot site to intersect with Street H. The latter street was to be located on the unopened Concession 2 Road Allowance referred to above. 1.4 Halloway's predecessor in title to the easterly portion of the Halloway Lands on the west side of Clarington Boulevard was Willsonia Industries Limited ("Willsonia"). Willsonia had transferred to the Municipality and constructed at its cost the portion of Clarington Boulevard located between Regional Highway No. 2 and the northerly limit of the intersection of Clarington Boulevard and Uptown Avenue. Willsonia had also dedicated and constructed Uptown Avenue easterly from Clarington Boulevard and developed the Cineplex Odeon Theatre, East Side Mario's, and Burger King on the east side of Clarington Boulevard. The transfer and construction of the public streets by Willsonia was required by the provisions of a Servicing Agreement with the Municipality dated May 24, 1994. It is registered on the title to the Willsonia lands. It has been amended by the First and Second Amending Agreements. 1.5 The Second Amending Agreement to the Servicing Agreement is dated June 2, 2003. It was made after Halloway had purchased the Willsonia lands and provided for Halloway to assume certain of Willsonia's obligations under the Servicing Agreement as amended. These included responsibility for the payment of the cost of the extension of Clarington Boulevard from its intersection with Uptown Avenue to the southerly limit of the Concession 2 Road Allowance. REPORT NO.: PSD-032-07 PAGE 3 1.6 In order to protect the north-westerly extension of Uptown Avenue through the portion of the Halloway lands acquired from Willsonia, the Second Amending Agreement to the Servicing Agreement required the transfer of the 0.3 meter reserves shown as Parts 2, 3, 4, 5 and 6 on Reference Plan 40R-24257 ("Reserves") to the Municipality. The Reserves were transferred to the Municipality by Instrument No. DR228537. The Reserves are shown on the map contained in Attachment 1. 1.7 The intent of the transfer of the Reserves was to protect the Municipality's interests in the planned north-westerly extension of Uptown Avenue. At the same time, however, paragraph 6.1 of the Second Amending Agreement to the Servicing Agreement provided in part that the Municipality agree to consider road patterns other than those shown in the Urban Design Guidelines contained in the Bowmanville West Main Central Area Secondary Plan. 1.8 The Concept Plan for Development provides for the termination of Uptown Avenue at its intersection with Clarington Boulevard and the construction of a new public street, the Stevens Road Extension on the unopened Concession 2 Road Allowance which abuts the northerly limit of the Halloway lands. The Stevens Road Extension is intended to replace the function of Uptown Avenue as an east-west component of the planned grid system of public streets paralleling Regional Highway NO.2. Official Plan Amendment 44 (which now is in force) in effect also replaced the previously planned north-westerly extension of Uptown Avenue from Clarington Boulevard with the Stevens Road Extension. 1.9 Paragraph 10 of the Halloway Principles (Attachment 3) provides for the Reserves to be transferred to Halloway for a nominal consideration, subject to the Municipality releasing Halloway, among other things, from certain contractual obligations respecting Uptown Avenue as provided in the Servicing Agreement, as amended, in return for the payment by Halloway of $200,000.00 to the Municipality for this release as provided in to paragraph 8 of the Halloway Principles (Attachment 3). 1.10 Paragraph 8 of the Halloway Principles provides that the payment of $200,000.00 to the Municipality is the consideration for the release of Halloway's obligation provided for under the Servicing Agreement as amended to dedicate certain lands required for and to construct at its cost the part of the north-westerly extension of Uptown Avenue from Clarington Boulevard. The payment is to be made on or before the expiry of the 30 day period following the latest to occur of the removal of the H (Holding) symbol from the zoning of the Home Depot site shown as Precinct "Y" on the Concept Plan for Development, and the granting of final site plan approval for the planned home improvement site. On the receipt of the payment, Halloway's contractual obligations respecting the extension of Uptown Avenue westerly from Clarington Boulevard are deemed to be released. In addition, the Municipality is required to execute a good and valid release of the provisions of the Servicing Agreement as amended, respecting the dedication and construction of the extension of Uptown Avenue for registration in the Land Registry Office. REPORT NO.: PSD-032-07 PAGE 4 2.0 COMMENTS 2.1 Subsection 268(1) of the Municipal Act, 2001 requires every municipality to pass a by- law establishing procedures, including the giving of notice to the public governing the sale of land. By-law 95-22 established these procedures for the Municipality of Clarington. It was passed under the predecessor of the Municipal Act, 2001 and continues in force. 2.2 Subsection 268(3) of the Municipal Act, 2001 requires that before selling any land, the Municipality shall, (a) by by-law or resolution declare the land to be surplus; (b) obtain at least one appraisal of the fair market value of the land; and (c) give notice to the public of the proposed sale. 2.3 However, subsection 268(8) excludes the following classes of land for which an appraisal is required before the Municipality may sell it among others: - land 0.3m or less in width in connection with an approval or decision under the Planning Act; and - land that does not have direct access to a highway if sold to the owner of land abutting that land. 2.4 In the case of land which is proposed to be sold owned by the Municipality, section 2 of By-law 95-22 requires that at least one appraisal of the fair market value of the land should be obtained before Council decides to sell it, unless an appraisal is not required under the Act. The Municipality's Solicitor advises that an appraisal of the Reserves is not required under the Act and therefore, an appraisal of the Reserves is not required under section 2 of By-law 95-22. As noted above, paragraph 10 of the Halloway Principles provides for the transfer of the Reserves to Halloway for a nominal consideration once the conditions specified in that paragraph are satisfied. 3.0 RECOMMENDATIONS 3.1 Staff recommend that after complying with the notice provIsions of By-law 95-22, Council pass a by-law declaring that the Reserves are surplus. 3.2 Staff recommend that Council pass a by-law authorizing the Mayor and Municipal Clerk on behalf of the Municipality to execute the transfer of the Reserves to Halloway for a nominal consideration in order to implement the land use plan for the development of the Halloway lands as set out in Official Plan Amendment 44 and in the Concept Plan for Development contained in the Halloway Principles. 3.3 Staff also recommend that Council direct Staff and the Municipality's Solicitor to complete the transfer of the Reserves to Halloway after the payment of $200,000.00 is made to the Municipality pursuant to paragraph 8 of the Halloway Principles. REPORT NO.: PSD-032-07 PAGE 5 3.4 Staff recommend that Staff and the Municipality's Solicitor be authorized to take all necessary actions to implement the intent of paragraphs 8 and 10 of the Halloway Principles. Attachments: Attachment 1 Attachment 2 - Attachment 3 - Map Concept Plan for Development Section 8 and 10 Excerpts from the Halloway Holdings Limited Principles of Understanding with the Municipality of Clarington By-law declaring Parts 2, 3, 4, 5 and 7 on Plan 40R-24257 surplus By-law to authorize execution of a transfer of Parts 2, 3, 4, 5 and 6 on Plan 40R-24257 to Halloway Holdings Limited Attachment 4 - Attachment 5 - List of interested parties to be advised of Council's position: Robert Hann, Halloway Holdings Limited Brent Clarkson, MHBC Planning Limited Sylvain Rivet, Home Depot of Canada Inc. Attachment 1 to Report PSD-032-07 Road Allowance between Concessions 1 & 2 Future Home Depot Site Theatre Parking Lots Parts 2 6 inclusive Plan OR-24257 to be Transferred (0.30 reserve) Uptown Avenue Existing Scotia Bank and Parking Lot 'e .. = " ~ :; o = = o .... ~ = "i: = U Existing Cinemas, East Side Mario's, and Harveys /l' Ighway tv. 0.2 ~ "C 0:: c: CI) ~ C) ,.... &n "C o::~ C) CI) 0:: W~E s Stevens Rd. SITED;t';"n;"v. HwfNo.:i- Reserves to be Transferred to Halloway Holdings Limited File: SPA 2005-022 G:\ArcMap\SpaKeysISPA 2005-022 UptownAveClaringtonBlvd,mxd Attachment 2 to Report PSD-032-07 ~~ ~ .. -. . II tiu ill ~ pill . Q. 25 I I ~~ c !i III i I I >-~~lIt ~ dillli i alii ,nF 1m I ~ ".,,,.. ~l o II) III J 11.1 H.- j I I I I I 1 I /1 I I I I I ~ , II I . I ~1 I I I 0-0-'1 I I ~ 1: I I -} I I ) - - i'''t'' 8.! ail:.. I- U Z - U Uo.I ~ Q.. u = c < o ... ..... I- < > ~ .... I I I I I I I I I I I I I I I I " ,f : I -1/~--rC~-~!~:~;~s-~iJ- w I I i I I . I ~ ~ rot I , ...L_____________-I . I ~ I Ii ;JiH ! I : ~ i I I i : I \ _____________J \. ......._n..___n__un__.._ HHHH ~~HU~i! 55 ~,~ H HI Si U ::i:i:i::i::i:i::i::i i=!!!~!! ::i:i ::l ~ ~ ~ ii" E i. i i; ~;! ~ '=If'~.. ~!rfo~to".o.~ ~!<I ~!ofoB ,'=lIH!!!1! 3!~ ~nJ dUUUU ~ l8 !u. '-.-. - _1_'_'_1 '101. , ::it ---- 'i:i'1T!' I\- ~ ~ ! ~ ~ ~ z ~ x Attachment 3 to Report PSD-032-07 PRINCIPLES OF UNDERSTANDING THESE PRINCIPLES OF UNDERSTANDING ("Principles") made as of the 1st day of March, 2006. BETWEEN: HALLOWAY HOLDINGS LIMITED (hereinafter called the "Owner") OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART WHEREAS: A. At its meeting held on March 1, 2006, the Council of the Municipality adopted Official Plan Amendment Nos. 43 and 44 ("OPA 43" and "OPA 44") and passed Zoning By-law Amendment Nos. 2006-046 and 2006-047 as recommended in Report #PSD-027-06. Copies of OPA 43, OPA 44, Zoning By-law Amendment Nos. 2006-046 and 2006-047 are contained in Schedule "A" hereto; B. The Owner is the owner in fee simple of the lands described under PINs 26613-0106, 26613-0107, 26613-0033, 26613-0034 and 26613-0035 for instruments registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). 12 required release. The transfer to the Municipality of any lands to be exchanged for any portion of the alignment of Private Road C shall be in fee simple absolute, free and clear of all encumbrances and restrictions except Permitted Encumbrances provided for in Schedule "G". (c) For the purpose of these Principles the term "Total Floor Area" has the same meaning as it has for the purposes of the Municipality's Zoning By-law, By-law 84-63, as amended, except that in the case of lands within a Large Format Commercial (C8) Zone established by Zoning By-law Amendment 2006-047, the area of a permitted "garden centre" as defined in section 22A.l(a)(vi) which is added to the aforesaid By-law 84-63 by section 2 of Zoning By-law Amendment 2006-047, shall be excluded from the calculation of the Total Floor Area of buildings or structures, provided that the required parking is provided.. Payment to the Municipality as Consideration for the Release of Contractual Oblh!:ations Respectine the Uptown Avenue Extension 8. On or before the day that is thirty (30) days after the latest to occur of (1) the date of Final Approval of the Planning Documents to permit the Owner's Commercial Lands to be developed for retail commercial and service uses, (2) the removal of the H (Holding) symbol from the provisions of Zoning By-law Amendment 2006-047 as it applies to Precinct "Y" shown on the Concept Plan for Development, and (3) the granting of final site plan approval of a home improvement store building on the aforesaid Precinct "Y", the Owner shall pay to the Municipality the sum of Two Hundred Thousand ($200,000.00) Dollars in cash or by negotiable cheque. The payment is consideration for the release by the Municipality of the Owner's obligation to dedicate a portion of the lands referred to in Recital B and to construct thereon at its cost, the extension of Uptown Avenue westerly from Clarington Boulevard. The contractual obligations of the Owner are contained in the Servicing Agreement between the Municipality, Willsonia Industries Limited and Clarington Place Limited dated May 24, 1994 as amended by the First Amending Agreement between the Municipality, Clarington Place Limited and Willsonia Industries Limited and as further amended by the Second Amending Agreement between 13 the Municipality, the Owner and Willsonia Industries Limited dated June 13,2003. (Both the Servicing Agreement and the First Amending Agreement are contained in Schedule "G" in Instrument No. D472409 The Servicing Agreement as amended by the First Amending Agreement and the Second Amending Agreement collectively are referred to as the "Servicing Agreement As Amended".) A copy of the Second Amending Agreement is registered in the Land Registry Office as Instrument No. DR228472. On receipt of the aforesaid payment, the obligations of the Owner respecting the aforesaid extension of Uptown Avenue shall be deemed to be released and the Municipality shall forthwith, and in any event, no later than thirty (30) days following its request of documentation from the Owner, execute a good and valid release of the provisions of the Servicing Agreement As Amended, respecting the dedication and construction of the aforesaid extension of Uptown Avenue and such other documents prepared by the Owner as may be required to implement the intent of this sentence. Upon the transfer of Precinct "Y" with the consent of the Durham Land Division Committee pursuant to paragraph 3 above, the Municipality shall prepare and execute all such documents (including, without limitation, the passing and registration of any required by-laws to permit the execution and registration of such documentation), as are required to release the following instruments from title to Precinct "Y": (i) Instrument No. D472409 as amended by Instrument Nos. D540060 and LT970915; and (ii) Instrument No. DR228472, each as it may be amended, and such other documents as may be required to implement the intent of this sentence. The by-laws, documentation and other documents shall be registered on title by the Owner at its cost. Prior to releasing the aforesaid Instruments from title to Precinct "Y", the Municipality and the Owner shall execute such amendments to the aforesaid Instruments as the Municipality's Director of Planning Services, acting reasonably, considers to be necessary to preserve the Servicing Agreement as Amended in their application to lands that are not included within Precinct "Y". The Owner shall prepare and deposit on title at its cost a reference plan of survey which shows Precinct "Y". The Owner shall pay the Municipality its reasonable costs for legal fees and disbursements in connection with the implementation of this paragraph forthwith after written notice requesting payment is given by the Municipality to the Owner. 14 Implementation of Concept Plan for Development Throueh Site Plans 9. (a) The Owner will prepare or will require successors in title of any part of the Owner's Commercial Lands to prepare site plans for the development of its lands that are consistent with the Concept Plan for Development. The Municipality and the Owner irrevocably authorize the Municipality's Director of Planning Services, acting reasonably, and after prior consultation with the Owner, to amend the Concept Plan for Development, if necessary, by revising it to respond appropriately to issues that may be raised by the Owner, the Municipality's staff or commenting agencies in reviewing and commenting upon applications for site plan approval made by the Owner or by an "Assuming Owner" (as hereafter defined) pursuant to section 41 of the Planning Act. The site plans shall be submitted to the Municipality for approval under section 41 of the Planning Act. Without limiting the generality of the foregoing, the provisions of paragraphs 6 and 7 and Schedule "F" of these Principles referable to Private Road C shall be repeated in each site plan agreement(s) required to be made as a condition of any site plan approval under section 41 of the Planning Act. It is understood and agreed that the Owner in subsequent submissions as part of the site plan approval process for buildings other than the proposed home improvement store on Precinct "Y", will make its submissions consistent with the Concept Plan for Development. The Municipality will seek to accommodate the needs oftenants or prospective tenants of the Owner by making decisions that will respect their needs while making decisions that are consistent with the Concept Plan for Development. The Owner will not ask the Municipality to approve nor will the Owner refer or appeal any site plan that is not consistent with the Concept Plan for Development to the Ontario Municipal Board, provided that on the implementation ofthis paragraph 9(a) in respect of either Precinct "X" or Precinct "Y" through the completion of the development thereof in accordance with the Concept Plan for Development, the requirement of this paragraph 9(a), shall terminate. 15 (b) The Municipality acknowledges that Drawings A-lOO, Revision 4, dated January 6, 2006, Drawing A3.0, revised February 27, 2006, and Drawing A7.l, revised December 20, 2005 which show the proposed home improvement store, garden centre, associated facilities, landscaping, parking and elevations are consistent with the Concept Plan for Development as it applies to Precinct "Y" shown on it. (c) The Owner covenants with the Municipality it will require a transferee of Precinct "Y"'. (i) to build a home improvement store building on Precinct "Y" which meets Leadership in Energy and Environmental Design Green Building Rating System version 1.0 (LEED Canada-NC 1.0) for LEED basic certification by the Canada Green Building Council (CaGBC); (ii) before requesting the issuance of a building permit for a home improvement store building on Precinct "Y", to submit with their application for a building permit, 1. proof of registration of the project with the Canada Green Building Council (CaGBC), and 2. copies of the LEED registration information and the LEED Project Checklist/Scorecard from the LEEDS Accredited Professional architect identifying the list of items incorporated in the design, construction and operation to meet LEED Canada-NC 1.0; (iii) to submit copies of all Technical Reviews of the project by CaGBC including the Preliminary LEED Review and Final LEED Review forthwith after each Technical Review ofthc project is made; and 16 (iv) to provide all the architectural enhancements, including brick pre-cast panels and store facings set out in the letter to the Municipality's Mayor John Mutton from Brent Clarkson dated July 13, 2005, unless otherwise agreed to by the Municipality's Director of Planning Services (a copy of this letter is contained in Schedule "J" attached hereto.), provided that on the implementation of this paragraph 9( c) in respect of Precinct "Y" through the completion of the development thereof in accordance with the Concept Plan for Development, the requirements of this paragraph 9( c) shall terminate. Release of Certain Reserves 10. Subject to compliance with the Municipal Act, 2001, the Municipality hereby covenants and agrees with the Owner that, without fettering it in the exercise of its legislative discretion, it is the intention of the parties that not later than thirty (30) days after the date of Final Approval of the Planning Documents, the Municipality shall pass a by-law authorizing the transfer by the Municipality to the Owner of the lands described in Instrument Number DR228537 (the "Reserve Lands"). The transfer shall be effected not later than thirty (30) days after the date of Final Approval of the Planning Documents but not sooner than the obligation set out in paragraph 8 hereof has been performed by the Owner and the Municipality shall prepare, execute and register such documents as are required to transfer the Reserve Lands by the Municipality to the Owner for a nominal consideration, in fee simple, free and clear of any encumbrances. The transfer shall be duly stamped with the Certificate of Compliance required pursuant to Municipal Act, 2001 for the transfer of the Reserve Lands as aforesaid. The Municipality shall do such further acts and things as may be required in order to transfer the Reserve Lands to the Owner for a nominal consideration as aforesaid. The Owner shall pay the Municipality's legal fees and disbursements not to exceed $300.00. The Owner shall pay GST and Land Transfer Tax, if any. Attachment 4 To Report PSD-032-07 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007- being a by-law to declare Parts 2, 3, 4, 5 and 6 on Plan 40R-24257 to be surplus pursuant to section 268(3) of the Municipal Act, 2001, S.O. 2001, c.25, as amended WHEREAS at its meeting on March 19, 2007, Council of the Municipality of Clarington received and approved Report PSD-032-07; NOW THEREFORE BE IT RESOLVED THAT the Council of The Corporation of the Municipality of Clarington enacts as follows: 1. THAT Parts 2,3,4,5 and 6 on Plan 40R-24257 are hereby declared surplus. By-law read a first time this day of 2007 By-law read a second time this day of 2007 By-law read a third time and finally passed this day of 2007 Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007- being a by-law to authorize the Mayor and Municipal Clerk on behalf of the Municipality of Clarington to execute a transfer of Parts 2, 3, 4, 5 and 6 on Plan 40R-24257 to Halloway Holdings Limited WHEREAS at its meeting on March 19, 2007, Council of the Municipality of Clarington received and approved Report PSD-032-07; NOW THEREFORE BE IT RESOLVED THAT the Council of The Corporation of the Municipality of Clarington enacts as follows: 1. THAT the Mayor and Municipal Clerk are authorized on behalf of The Corporation of the Municipality of Clarington to execute a transfer of Parts 2, 3, 4, 5 and 6 on Plan 40R-24257 to Halloway Holdings Limited for a nominal consideration. By-law read a first time this day of 2007 By-law read a second time and passed this day of 2007 By-law read a third time and finally passed this day of 2007 Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk Attachment 5 To Report PSD-032-07