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HomeMy WebLinkAbout89-8 # COUNCIL INFORMATION OI'r.mGl] FOlIo,t ~I .~tj ....,. Ontario Ontario Municipal Board Commission des affaires municipales de l'Ontario r .. 1-1 ")()<6 ~ lO C{ 011 C9:O fOLIO I ~t....J Qr:af'\f:A 8SUI 0.1'1 JUN - 21992' o 910131 R 890240 AND IN THE HATTER OF a referral to this Board by the Honourable Minister of Municipal Aff~ for consid tion of Proposed ~me~~ . the Official Plan of the-- egiona1 Municipality of Durham Minister's File No. 18-0P-0010-241 O.M.B. File No. 0 910131 A JuJ'W --F" ,_r IN THE HATTER OF Section 17(11) of the ,lannin9 Act, 1983 - and - IN THE HATTER OF Section 34(18) of the P1annin9 Act, 1983 AND IN THE HATTER OF appeals by the Regional Municipality of Durham,. Donald Carter and Stella Carter against Zoning By-law 89-8 of the Corporation of the Town of Newcastle O.M.B. File No. R 890240 pECISION delivered by T. YAO and ORDER OF THE BOARD The crux of this case is whether the Stoops should be permitted to sever a lot from their 15 acres on Solina Road. The neighbour to th:e south, . Stella Carter, objects. Everyone else, including the Region, the Town and the other neighbours, are in support. The lands are in an area "where there are perhaps 8 non~farm residential lots ranging in size from approximately 1 to 4 hectares". In 1989, Mr. and Mrs. Stoop asked Newcastle to rezone their lands from Agriculture to Rural Cluster Exception. Agriculture demands a lot size of 40 ha and a frontage of 100 m. Rural Cluster requires a 3000 square metre lot area and a 30 metre frontage. The "exception" part of Rural Cluster ensures that the Stoops could not obtain further severances. The Stoops originally wanted 2 additional lots but, over the course of events, their application has been modified to only 1 additional lot. .. . . - .2 - o 910131 R 890240 At the same time, the Stoops asked the Region to amend its Official Plan to permit the severance. ~he Region's preliminary ~lanning report statedt -..;,.;;..- .Staff do not believe that the current application for one lot alters the fact that this area and the subject proposal do not meet the criteria for nodes and clusters. ... ~any similar situations comprising groups of lots 10 acres or larger exist within the Region. As a result, a precedent may be set if the subject amendment was approved.1I ~he Region has a policy allowing local municipalities to defi~e . clusters. On October 1988, Newcastle planning staff wrote a planning report. recommending that the 2 lot proposal be approv~d. ~hey were satisfied that there was an identifiable cluster as per the Regional Official Plan. ~he cluster would include 5 lots on the west ~ide of Solina and 4 on the east. . ~he 4 on the east included Hr. Stoop and Ms Carter. On the basis of this repox:t, Newcastle passed Zoning By-law 89-8 on January 16, 1989. On January 22, 1990, planning staff wrote a second report recommending the repeal of By-law 89-8 and the passage of a replacement by-law to permit only one additional lot. Based on Newcastle's position on the existence of the cluster, the Region adopted Official Plan Amendment 241 on May 16, 1990. This amendment has only one line of textt "Notwithstanding any other provision to this Plan, . . . non-farm residential dwellings may be allowed . .. . on the following areast p) One additional lot on the (Stoop) property subject to . . . the Agricultural Code of Practice." Ms Carter has appealed By-law 89-8. She has not referred O.P.A. 241 to the Board, but the Minister has observed that the Carter concerns are with the principle of the amendment and referred it of his own accord to this Board to be heard with the zoning appeal. ... , " - 3 - o 910131 R 890240 Newcastle's position J.s that the Official Plan amendment is not neededJ it was sought out of an abundance of caution and merely strengthens the case for rezo~ing. However, the Official Plan circulation has elicited a comment from the Central Lake Ontario Conservation Authority that would require a modification, should the amendment be approved. Although it does not object to the use being. proposed,. the valley lands should be kept under one ownership. These form a strip running north/south about 100 metres. back from the ~ront of the Stoop lot. Thus the Official Plan process has proved not to be superfluous. How did Newcastle come to the conclusion that this area is a cluster? Its planning director stated. itA cluster is not strip development. A cluster is definable entity. We don't rezone everybody in the cluster, we deal with applications one at a time. What I do is I go to the middle of the road and look at both si~es, north, south, east, and west. I ask, "Is there a reasonable group of houses?" If you can satisfy yourself there is a cluster, then the area can be construed as a cluster." The map shows 3 parcels in the 1 to 3 acre range just north of and across from the Stoops. This would have been the most prominent grouping Mr. Wu would have observed from the middle of Solina Road. There is also a 5 acre parcel with a house directly opposite the Stoops. In all, there are 8 residences identified in the cluster. One of these is the Carter residence. The Carters have a 10 acre hobby farm. They have about 11 head of cattle. They concede that this is not their principal source of income but Itlt puts meat on the table and helps supplement our income. It Mr. Carter' s grandfather owns the land further to the south, 59 acres, which was a working farm.' The Carters say many of the other homes in the area are hobby farms. .. - 4 - o 910131 R 890240 - In the Regional Plan, the major goals for the Open Space System are, . to preserve the unique aspects of the Region's landscape to provide a continuous open space system, and to provide a range of leisure activities. . . Limited non-farm residential buildings may be allowed in Open Space in the form of new clusters with the following characteristics, - i) the cluster 1s recognized as a definable separate entity and Is of a size so not to be considered as scattered or strip developmentJ ii) the entire cluster including area proposed for development is identified in ... the zoning by-law. Once defined no further extensions to the cluster shall be permitted. lii) the existing group of dwellings are on relatively small lots generally being less than approximately 3 ha'.... [Board's italics) The Region has acceded to the Town's judgment a~d the Town has used a somewhat subjective approach to identify whether a cluster exists. Although Amendment 241 is an exception to the Regional policies, It is fair to use these as criteria to look at the Town's conclusion. Of the 9 parcels identified in the October 1988 report, 4 are of 3 ha or less, the other 5 are 4 ha (10 acres) or more. Moreover, the process in the Regional Plan is not being followed here. The Plan requires that the ent;ire cluster be recognized in the zoning by-l~w. Here, only an 80 m by 100 m corner of the Stoop lands is being rezoned. In order to determine the extent of the cluster, one cannot look in any zoning by-law. It is only defined in Planning Report 216-88. Finally, the Region does not contemplate that once a cluster is defined the Town should consider rezoning applications on a case by '", '. . . - 5 - o 910131 R 890240 r case basis. The entire cluster should be rezoned so that everyone 1s in the same boat. In short, if there were no Official Plan Amendment, the zoning by-law would not comply with the Regional Plan. Does the Officlal Plan amendment have merit, taking into consideration the fact that local council supports the new lot? The Region appeared as a · friend of the Board. but took no part in the hearing.. It produced no planning support for its amendment. Mr. and Mrs. Stoop purchased these lands in 1966 and have lived here ever since. It has served their needs well but now they tire of having to mow their large expanse of grass. They wish to sever a lot for their partner, Hr. Gerrits, who owns lands across the road and would like to build a new house. The new lot would have to be taken from the southwest corner, adjacent to the Carters. The Carters see this propo'sal as a precedent that would put pressure on their lands and the other 10 acre hobby farms to also subdivide. They recognize that development may come to these lands but they think it should be on public services, as in the case of Courtice, a few kilometres south. The Board agrees with their position. Hr. Ricard, former Reeve of Darlington and agent for Hr. Stoop, stated it best when he said, "Severances are something you do for the long run.. This single severance does not promote the goals of the open space policies nor does it represent planning for the long run. Therefore, the appeal is allowed and By-law 89-8 is repealed. Official Plan Amendment 241 is not approved. The Board so orders. DATED at TORONTO this 2nd day of June, 1992. ~h T. YAol ~ MEMBER · -"ill- t-' '","P I THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW NUMBER 89- 8 being a By-law to amend By-law 84-63, the COmprehensive Zoning By-law of the COrporation of the Town of Newcastle. WHEREAS the Council of the Corporation of the Town of Newcastle deems it advisable to amend By-law 84-63, as amended, of the Corporation of the Town of Newcastle. NOW THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the Town of Newcastle enacts as follows: 1. Schedule "1" to By-law 84-63, as amended, is hereby further amended by changing the zone designation from "Agricultural (A)" to "Rural Cluster (RC)" as indicated on the attached Schedule "X" hereto. 2. Schedule "X" attached hereto shall form part of this By-law. 3. This By-law shall come into effect on the date of passing hereof, subject to the provisions of Section 34 of the Planning Act. BY-LAW read a first time this 16th day of BY-LAW read a second time this 16th day of BY-LAW read a third time and finally passed this January January 1989 1989 16th day of January 1989. ~ "I. This 0,' ., is Schedule "X" to By-law 89-.8 passed this 16th day of January, 1989. A.D. , LOT 24 >-i 402.912 CONCESS ION 3 !: o ~ Z r s. W. Anole / Lot 24,Con.3 r,r NASH ROAD E'ZZl ZONING CHANGE FROM IAI TO I Rei l~,""'{)1 ZONING TO REMAIN IEpl ZONING TO REMAIN I A I Mayor o 25 50 100 150m 50 3010' ..- - -.- - - 35 34 33 32 31 30 29 2827 26 25 24 23 22 21 20 19 18 17 M3 I I ~ A : ~ --1~1-' EP ~ I I , I , Z I j lA-l 0 I I - I I Cf) I Cf) IJJ o Z 8 SEE SCHEOULE '4' (COURTleE) NASH ROAD I I I I :A I I I SEE SCHEDULE 'IS' (MAPl.E GROVE) N Z o - Cf) Cf) IJJ o 8 BLOOR Former Township of DARLINGTON o 250 500 't.r~____ _ 500m 100 IOOOm a I'SY ~<.,: ~.. ,_ ~ 1 l>. "'t9D FOUO'~l.-l OJl!'\F:ft 18S\J! Ol1l ICXJC)II 51 o 91013l R 890240 JUN .. 21992 " . IN !1'HE !lATTER OF Section 17 (1l) of 'the Planning Act, 1983 '. AHD IN THE !lATTER OF a referral to this Board by the Honourable Minister of Municlpal Affairs, for consideration of Proposed Amendment . No. 241 to the Official Plan of the Regional Municipality of Durham . Minister's File No. 18-0P-00lO-241 O.M.B. Flle No. 0 910131 ;is ~,w - and - IN THE !lATTER OF Section 34(18) of the Plannina Act, 1983 AHD IN THE !lATTER OF appeals by the Regional Municipality of Durham, Donald Carter and Stella Carter" against zoning By-law 89-8 of the Corporation of the Town. of Newcastle O.M.B. File No. R 890240 DttCISION delivered ~y T. YAO and ORDER OF THE BOARD . ' . . The crux of this case is whether the Stoops should be permitted to sevet' a lot from their 15 acres onSolina Road. The neighbour to th;e'south, 'Stella Carter, objects. Everyone else, including the Region, the Town and the other neighbours, are in support. The lands are in an area "where there are. perhaps 8 non-farm residential lots ranging in size from approximately 1 to 4 hectares". In 1989, Hr. and Mrs. Stoop asked Newcastle to rezone their lands from Agriculture to Rural Cluster Exception. Agriculture demands a lot size of 40 ha and a frontage of lOO m. Rural Cluster requires a 3000 square metre lot area and a 30 metre frontage. The . .'--, "exception" part of Rural Cluster ensures that the Stoops could not obtain further severances. The Stoops originally wanted 2 additional lQts but, over the course of events, their application has been modi~ied to only I additional lot. . ..~.. . ' - ,2 - o 910131 a 890240 At the same time, the Stoops asked the Region to amend its Offieial Plan to permit the severance. ~he Region'. preliminary ,lanning report stated. .Staff do not believe that the current application for one lot alters the fact that this area and the subject proposal do not meet the criteria for nodes and clusters. ... Many similar situations comprising groups of lots 10 acres or larger exist within .the Region. As a result;, a precedent may be set If the subject amendment was approved.- 1'he Region has a polIcy allowing local municipalities to defi~e . clusters. On October 1988, Newcastle planning staff wrote a planning .. repOrt. recommending that the 2 .lot proposal be approv~d. ~hey were . . - . . satis~ied that there was an identifiable cluster as per the Regional Official Plan. The cluster would include 5 lots on the west ~ide of Solina and 4 on the east. . ~he 4 on the east included Hr. Stoop and )1s Caner. On the basis of this repox:t, Newcastle passed Zoning By-law 89-8 on JaDuary 16, 1989. On January 22, 1990, planning staff wrote a second report recommending the repeal of By-law 89-8 and the passage of a . replacement by-law to permit only one additional lot. Based on Newcastle's position on the existence of the cluster, the Region adopted Official plan Amendment 241 on May 16,1990. This amendment has only one line of text' "Notwithstanding any other provision to this Plan, non-farm residential dwellings maybe allowed · .. · following areas. . . . on the P) One additional lot on the (Stoop) property subject to . . . the Agricultural Code of Practice." Hs Carter has appealed By-law 89-8. She has not referred O.P.A. 241 to the Board, but the Minister has observed that the Carter concerns are with the principle of the amendment and referred it of his own accord to this Board to be heard with the zoning appeal. . ,..it "' I 3 - o 910131 R 890240 Jiewcast.lets position J.s that the Official Plan amendment Is not needed,. it was sought out of an abundance of caution and merely strengthens the case for rezo~ing. However, t~e Official Plan circulation has elicited a comment from the Central Lake Ontario Conservation Authority that would require a modifica:t;ion, should the amendment be approved. Although it does not object to the use being. proposed,. the valley lands should be kept under one ownership. These form .. strip running north/south about 100 metres. back from the ~ront " . of the Stoop lot. Thus the Official Plan process has proved not to be superfluous.- BOW did Newcastle come to the conclusion that this area is a cluster? Its planning director stated. "A cluster is not strip development. A cluster is definable entity. We don't rezone everybody in the cluster, we deal with applications one at a time. What I do Is I go to the middle of the road and look at both si~es, north, south, east, and west. I ask, "Is there a reasonable group of houses?" If you can satisfy yourself there is a cluster, then the area can be construed as a cluster." The map shows 3 parcels in the 1 to 3 acre range just north of and across from the Stoops. This would have been the most prominent grouping Mr. Wu wouid have observed from the middle of Solina Road. There is also a 5 acre parcel with a house directly opposite the Stoops. In all, there are 8 residences identified in the cluster. One of these is the Carter residence. The Carters have a 10 acre ,hobby farm. They have about 11 head of cattle. They concede ~hat this is not their principal source of income but "It puts meat on the table and helps supplement our income." Mr. Carter's grandfather owns.the land further to the south, 59 acres, which was a working farm." The Carters say many of the other homes in the area are hobby farms. ~-_._- --..--.-. - .. , - 4 - o 910131 R 890240 In the Regional Plan, the major goals for the Open Space System are I . to preserve the unique aspects of the Region's landscape to provide a continuous open space system, and, to provide a range of leisure activities. . . . Limited non-farm residential buildings may be allowed in Open Spac. in tbe form of new clusters with the following characteristics I ii) the cluster is recognized as a definable separate entity and is of a size so not to be considered as scattered or strip development, the entire cluster including area proposed for development is identified in ... the zoning by-law. Once defined no further extensions to the cluster shall be permitted. . - i) . . iii) the existing group of dwellings are on relatively small lots generally being less than approximately 3 hal.... [Board's italics) The Region has acceded to the Town's judgment and the Town has used a somewhat subjective approach to identify whether .a cluster exists. Although Amendment 241 is an exception to the Regional policies, it is fair to use these as criteria to look at the Town's conclusion. Of the 9 parcels identified in the October 1988 report, 4 are of 3ha or less, the other 5 are 4 ha (10 acres) or more. Moreover, the process in the Regional Plan is not being followed here. The Plan1requires that the ent;ire cluster be recognized in the zoning by-l~w. Here, only an 80 m by 100 m corner of the Stoop lands is baing rezoned. In order to determine the extent of the cluster, one cannot look in any zoning by-law. It is only defined in Planning Report 216-88. Finally, the Region does not contemplate that once a cluster is defined the Town should consider rezoning applications on a case by -'~.. '" .. . .. - 5 - o 91013l R 890240 case basis. ~he entire cluster should be rezoned so that everyone is in the same boat. In short, If there were no Official Plan Amendment, the zoning by-law would not comply with the Regional Plan. Does the Official Plan amendment have merit, taking into consideration the fact that local council supports the new lot? The Region appeared as a "friend of the Board" but ~ook no part in the hearing.. It produced no planning support for its amendment. Hr..' and Hrs. Stoop purchased these lands in 1966 and have lived here ever since. It has served their needs well but now they tire of having to mow their large expanse of grass. They wish to sever a lot for their partner, Hr. Gerrits, who owns lands across the road and would like to build a new house. The new lot would have to be taken from the southwest corner, adjacent to the Carters. The Carters see this proposal as a precedent that would put pressure on their lands and the other 10 acre hobby farms to also subdivide. They recognize that development may come to these lands but they .think it. should be on publiC services, as in the case of Courtice, a few kilometres south. The Board agrees with their position. Hr. Ricard, former Reeve of Darlington and agent for Mr. Stoop, stated it best when he said, "Severances are something you do for the long run." Thls single severance does not promote the goals of the open space policies nor does it represent planning for the lorig run. Therefore, the appeal is allowed and By-law 89-8 is repealed. Official Plan Amendment 241 is not approved. The Board so orders. DATED at TORONTO this 2nd day of June, 1992. ~h T. YAol ~ UMBER