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HomeMy WebLinkAboutPSD-092-08 q~-!!Jglon REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION SPMMITTEE .:/I-: ~O\V\t10n f;fA-Lfs,)~og Monday, September 8, 2008 Date: Report #: PSD-092-08 File #: COPA2005-0008, S-C-2005-0004, By-law #: S-C-2005-0003ZBA 2005-042 & ZBA 2005-043 and S-C-2004-0004 & ZBA 2004-049 I:; I Subject: REPORT FOR INFORMATION REGARDING APPEAL OF OFFICIAL PLAN AMENDMENT, PROPOSED PLAN OF SUBDIVISIONS, AND ZONING BY- LAW AMENDMENTS FILES: COPA2005-0008, S-C-2005-0004, S-C-2005-0003, ZBA 2005-042 AND ZBA 2005-043; AND S-C-2004-0004 AND ZBA 2004-049 APPLICANT: BROOKFIELD HOMES (ONTARIO) LIMITED, SMOOTH RUN DEVELOPMENTS INC., WEST DIAMOND PROPERTIES INC. AND PLAYERS BUSINESS PARK LIMITED RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-092-08 be received for information; 2. THAT all interested parties listed in this report and any delegation be advised of Council's decision. Reviewed by: ()~~ avid J. Crome, M.C.I.P., R.P.P. Director of Planning Services Franklin Wu, Chief Administrative Officer CP/sh/av August 29, 2008 i~ 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-092-08 PAGE 2 1.0 APPLICATION DETAILS 1.1 North Village Neighbourhood, Newcastle Village 1.1.1 Applicant: Brookfield Homes (Ontario) Limited and Smooth Run Developments Inc. 1.1.2 Official Plan Amendment: . Amend Table 5-1 by increasing the population targets for Newcastle Village from 18,600 to 18,800 and amending all corresponding totals. . Amend Table 9-2 by increasing the housing target for North Village Neighbourhood to reflect the following: i) 1050 low density units to 1350 units ii) 250 medium density units to 300 units iii) total from 1350 units to 1700 units; and iv) amending all corresponding totals. . Amend Section 19.6 by reducing the collector road right-of-way width from 23 - 26 metres to 20 metres. . Amend Section 19.7 by reducing the local road right-of-way width from 20 metres to 18 metres. . Amend "Map A4 - Land Use Newcastle Village Urban Area" by: i) revising the collector road pattern ii) relocating two elementary school symbols and one neighbourhood park symbol; iii) adding a neighbourhood park symbol . Amend "Map B4 - Transportation - Newcastle Village Urban Area" by revising the collector road pattern. I . Amend "Map E3 - Neighbourhood Planning Unit - Newcastle Village Urban Area" by changing the population of the North Village Neighbourhood from 3900 to 5100 (see Attachment 2). " , ! 1.1.3 Subdivision Proposal: Brookfield Homes (Ontario) Limited: 416 unit residential draft Plan of Subdivision consisting of 157 single detached dwellings, 120 semi- detached/link units and 139 medium density units, 1 secondary school block, 1 elementary school block and 2 park block. Smooth Run Developments: 1151 unit residential draft Plan of Subdivision consisting of 506 single detached dwellings, 238 semi- detached/link lots, 407 medium density units, two (2) elementary school blocks, five (5) park blocks and two (2) stormwater management facilities. . i , " . , i , , i I , " I , i: REPORT NO.: PSD-092-08 PAGE 3 1.1.4 Zoning By-law Amendment: Change the current zoning on both properties from "Agricultural (A-1) Zone" to an appropriate zone to permit the proposed developments. 1.1.5 Site Area: Brookfield Homes (Ontario) Limited: Smooth Run Developments Inc.: Total 32.40 hectares 73. 84 hectares 106.24 hectares 1.1.6 Location: The subject lands are located Part Lot 27 and 28, Concession 2, former Township of Clarke (Attachment 1) 1.2 Brookhill Neighbourhood, Bowmanville 1.2.1 Applicant: West Diamond Properties Inc. and Players Business Park Limited 1.2.2 Subdivision Proposal: 612 unit residential draft Plan of Subdivision consisting of 270 detached dwellings, 158 semi-detached/link units, 184 townhouse units, and 2 park blocks 1.2.3 Site Area: 34.63 ha 1.2.4 Location: The subject lands are located Part Lot 17, Concession 2, former Township of Darlington (Attachment 2) 2.0 BACKGROUND 2.1 North Villaae Neiahbourhood. Newcastle Villaae 2.1.1 In 2005 a joint official plan amendment application was filed by Brookfield Homes and Smooth Run developments for lands located north of the Canadian Pacific Railway, east of Regional Road 17 (North Street), south of Concession Road 3 and west of Arthur Street. I, I' , , it II'. ! I 2.1.2 Smooth Run Developments and Brookfield Homes each submitted separate applications for draft plans of subdivision as well as zoning by-law amendments. In addition, an application for Neighbourhood Design Plan for the North Newcastle Village was submitted in accordance with the policies of the Clarington Official Plan. Smooth Run Developments and Brookfield Homes each own large parcels equal to approximately 96% of land in the North Village Neighbourhood. 2.1.3 A public meeting for the five referenced applications was held in January 2006. A Public Information Session/Design Charette was held in October 2007 for the neighbourhood design plan. The lands subject to these applications were one of the six development proposals considered as part of the Financial Impact Study undertaken during the second half of 2007, the recommendation of which Council approved in March 2008. REPORT NO.: PSD-092-08 PAGE 4 2.1.4 On May 26, 2008 revised subdivision and rezoning applications were submitted for both Brookfield and Smooth Run. The revised applications focused on the lands in the south west corner of the combined overall site, where the applicants believe servicing is available for approximately 250 units. On July 26, 2008 another revision was submitted for both parcels. This time all the lands owned by the applicants were incorporated. A public information session has been scheduled for the revised neighbourhood design plan for Thursday, September 11, 2008 and statutory public meetings dealing with the revised subdivision and rezoning applications is scheduled for Monday, September 22, 2008. 2.1.5 On August 11, 2008, the Municipality received letters of appeal on the Official Plan Amendment and two revised draft plan of subdivision applications received July 26, 2008. On August 18, 2008, a copy of a letter forwarded to the Ontario Municipal Board was provided to the Municipality of Clarington. This letter appeals both applications for zoning by-law amendment. The Official Plan Amendment has been appealed pursuant to Section 22(7) of the Planning Act, failure of Council to adopt an amendment to the Clarington Official Plan. The proposed draft plans of subdivision have been appealed pursuant to Section 51(34) of the Planning Act, failure of Clarington to make a decision in respect of proposed draft plans. The applications for zoning by-law amendment have been appealed pursuant to Section 34(11) of the Planning Act, failure of Clarington to make a decision in respect of applications for rezoning. 2.2 Brookhill Neiahbourhood. Bowmanville 2.2.1 Applications for proposed draft plan of subdivision and zoning by-law amendment were originally submitted for the subject lands west of Green Road and generally north of Durham Highway 2 in August 2003. These applications were deemed premature based on the policies of the Clarington Official Plan and returned to the applicant. The applications were resubmitted in May of 2004 and were not deemed complete until the correct application fees were received on October 15, 2004. The statutory public meeting was held on December 6, 2004. t' I , 2.2.2 In accordance with the policies of the Clarington Official Plan, the Municipality undertook a subwatershed study for the Brookhill Creek watershed. This study was completed in November 2005. In April 2005, the Municipality retained The Planning Partnership to assist in the preparation of a Secondary Plan based on the principles of new urbanism. A public meeting for the Secondary Plan was held in November 2007 and Official Plan Amendment 60 (OPA 60), the Brookhill Secondary Plan, was adopted by Council in May 2008. As this was a non-exempt OPA it was forwarded to the Region for approval. The Region approved OPA 60 on August 4, 2008 subject to an appeal period. Staff have been verbally advised that an appeal to OPA 60 was received by the Region from a resident on the east side of Regional Road 57. A copy of the appeal letter has not been received. , ii".'.'.". d !: h 2.2.3 On July 10, 2008 a revised proposed draft plan of subdivision was submitted by the applicant. On August 11, 2008 the Municipality received a letter appealing the draft plan of subdivision pursuant to Section 51(34) of the Planning Act, failure of Clarington REPORT NO.: PSD-092-08 PAGE 5 to make a decision in respect of proposed draft plan. On August 18, 2008, a copy of a letter forwarded to the Ontario Municipal Board was provided to the Municipality of Clarington. This letter appeals the application for zoning by-law amendment. The application for zoning by-law amendment has been appealed pursuant to Section 34(11) of the Planning Act, failure of Clarington to make a decision in respect of application for rezoning. 3.0 COMMENTS 3.1 Staff have continued to meet with the applicants and agents for both the North Village applications and the Brookhill applications. At this time, a date for an OMB hearing has not been scheduled. 4.0 CONCLUSION 4.1 Staff recommends that Council receive the report for information. Attachments: Attachment 1 - North Village Key Map Attachment 2 - Brookhill Key Map Attachment 3 - Appeal Letters Interested parties to be notified of Council and Committee's decision: Smooth Run Developments Brookfield Homes (Ontario) Limited West Diamond Properties Inc. Players Business Park Limited Rozlyn Houser Attachment 1 Jel. Report PSD-092-08 Brookfield Homes (Ontario) Limited CONCESSION ROAD 3 '" '" '" '" >- ~ J: Cl J: Smooth Run Developments (Metrus Developments Inc.) ...J <( z o (3 w a:: J C.l ...-. " RAILWAY Newcastle Key Map COPA 2005-008 Clarington Official Plan Amendment Smooth Run Developments (Metrus Developments Inc.) Proposed Subd ivision Plan S-C.200S-003 Zoning By-law Amendment ZBA 200S-042 Brookfield Homes (Ontario) Limited Proposed Subdivision Plan S-C-200S.o04 Zoning By-law Amendment ZBA 2OOS.043 Attachment 2 To Report PSO-o92-0B ::!! "> r:: I CD tIl CIl t:.lO: CIl lii g-D.. .. tIl D.. tIl '0 CIl C ,= o tIl ~ .il is l!! _ CIl tIl >- ~~ i.: CIl C ~ o - c CIl E '0 C CIl E <( ~ IV .. >- III Cl .= C o N c o '(jj ':; .... ,- 0'0 o.a . ::I ....0 0... o 0 N C . IV 0- .D.. 00= ~ C CJl .... o . .... o o N c( ID N ... .. :I: r:: o '" .. u o ..J ~ CD ... o ~ D.. = /' /, ! --i l, 1:: U).~ -go. ",c. ...J<C - >- :gm 0'0 +:ill) .- r:: :g~ <CO iiI:Oll ill "';$1':';; ~ ~ ;!!' / ; ~' i ~ r~. i i Attachment 3 To Report PSD-092-08 Barristers & Solicitors Goodmans 250 Yong, Stre,t, Suit, 2400 Toronto, Ontario Canada M5B 2M6 T,I,phone,4t6.979.2211 Facsimile, 416.979.1234 goodmans.ca Direct Line: 416.597.4119 rhouser@goodmans.ca August 7, 2008 Our File No.: 07-1593 Delivered Via Courier Municipality ofClarington 40 Temperance Street Bowmanville, Ontario LlC 3A6 Attention: Ms, Patti Barrie, Clerk Dear Ms. Barrie: Re: Brookfield Homes (Ontario) Limited Smooth Run Developments Inc. Appeal pursuant to Section 22(7) of the Planning Act Proposed Amendment to the Clarington Oflicial Plan COP A-200S.008 We are solicitors for Brookfield Homes (Ontario) Limited ("Brookfield") and for Smooth Run Developments Inc. ("Smooth Run"), the owners of abutting parcels of land located generally in an area bounded by Concession Road 3 to the north, Regional Road 17 to the west, Arthur Street to the east and the rail line to the south, in the former Village of Newcastle in the Municipality of Clarington. The location of the Brookfield parcel, which comprises approximately 34.9 hectares ("Brookfield Lands") and the location of tlle Smooth Run parcel, which comprises approximately 73.9 hectares ("Smooth Run Lands"). On behalf of Brookfield and Smooth Run, we are appealing to the Board pursuant to subsection 22(7) of the Planning Act from the failure of Clarington to adopt an amendment to the Clarington Official Plan. Purpose of the Proposed Official Plan Amendment The application to amend Clarington's Official Plan (the "Proposed OPA") was jointly filed by Brookfield and Smooth Run. The purpose of the Proposed OPA is to facilitate the approval of residential draft plans of subdivision that have been proposed for the Brookfield Lands (No. S-C- 2005-004, the "Brookfield Draft Plan") and for the Smooth Run Lands (No. S-C-2005-003, the "Smooth Run Draft Plan") (collectively, the "Draft Plans"). GOODMANS\\5620789.1 (i-o0 dmans Page 2 Both the Brookfield Draft Plan and the Smooth Run Draft Plan provide for a mix of low and medium density lots and blocks, together with park and school blocks and roads. The Brookfield Draft Plan could accommodate over 400 dwelling units and the Smooth Run Draft Plan could accommodate over 1150 dwelling units. The Draft Plans have been designed in a coordinated manner such that each contains part lots and blocks along their shared property line which when put together could accommodate in excess of approximately 60 additional dwelling units. Brookfield and Smooth Run also each filed an application for approval of an amendment to the Clarington Zoning By-law to implement their respective Draft Plans, concurrently with filing their applications for approval of the Draft Plans. Backe:round Official Plan Desie:nations and Policies The Brookfield Lands and the Smooth Run Lands are designated "Living Area" in the Durham Regional Official Plan. The policies of the Living Area designation of the Regional Official Plan permit the development of residential uses in a range of forms and densities. The Proposed OP A conforms with the policies of the Durham Regional Official Plan. The Land Use Map for the Newcastle Village Urban Area of the Clarington Official Plan designates most of both the Brookfield Lands and the Smooth Run Lands "Urban Residential", with the exception of a portion of each adjacent to Concession Road 3 North Street which have a "Future Urban Residential" designation. The policies of the Clarington Official Plan provide that lands in the Urban Residential designation will be used predominantly for residential uses in single, semi- detached, link and duplex house forms. The Future Urban Residential designation on the Brookfield Lands and the Smooth Run Lands is comprised of the lands located within the area of influence defined by the Minimum Distance Separation Formula for an existing agricultural operation located to the north. The special policies relating to this area provide that the Future Urban Residential designation will remain until the agricultural operation ceases. There are also various school, park and medium density residential overlay symbols shown on the Land Use Map on the Brookfield Lands and Smooth Run Lands. The Proposed Neie:hbourhood Desie:n Plan The Clarington Official Plan generally divides its urban areas into a number of Neighbourhood Planning Units, each of which is delineated geographically on maps attached to the Official Plan and are ascribed a population and target housing mix. The Brookfield Lands and the Smooth Run Lands are located within the North Village Neighbourhood Planning Unit, and collectively comprise over 90% of all lands in the North Village Neighbourhood. . The policies of the Clarington Official Plan require that prior to the consideration and approval of a draft plan of subdivision, the development proponent will generally be required to prepare a GOODMANS\\5620789.1 Goodmans Page 3 Neighbourhood Design Plan for the Neighbourhood Planning Unit. The Neighbourhood Design Plan is to be a visual interpretation of the future development of the entire subject Neighbourhood, and shall include: . Road alignments and standards, . Sidewalks, trail systems, walkways, and cycling and transit routes, . Potential lotting, . Siting of schools, parks, open space lands, storm water management facilities and other community/utility uses. Shortly after the submission of their applications for approval of the Proposed OP A and thcir respective Draft Plans, Brookfield and Smooth Run jointly submitted a proposed Neighbourhood Design Plan for the North Village Neighbourhood. The Neighbourhood Design Plan submission was accompanied by a supporting Urban Design Brief and Functional Servicing Report. Details of the Proposed OPA The Proposed OP A increases the population and housing unit targets for the North Village Neighbourhood to reflect urban residential densities more consistent with Provincial Policy, and as reflected in the proposed Neighbourhood Design Plan and the Draft Plans. The Proposed OP A also revises the road pattern and road widths provided for in the Neighbourhood, and refines the locations of schools and parks in the Neighbourhood, consistent with the Neighbourhood Design Plan. A copy of the Proposed OP A is enclosed. Processing of the Applications Brookfield and Smooth Run filed applications for approval of the Proposed OP A and their respective Draft Plans and implementing zoning by-laws, and the proposed Neighbourhood Design Plan in August and September of 2005. Clarington held a statutory public meeting respecting the applications in January 2006. In the report prepared by staff for the meeting, it was recommended that the applications be processed, and a community consultation process be undertaken for the Neighourhood Design Plan. Since the applications were filed, Brookfield and Smooth Run have worked with Clarington, and other interested agencies, in an attempt to finalize the Neighbourhood Design Plan for the North Village Neighbourhood, and to resolve any issues identified respecting the Proposed OP A and their respective Draft Plans. At the request of Clarington, Brookfield and Smooth Run funded the retainer of an urban design consultant by the Town to peer review the Neighbourhood Design Plan. Our clients' consultants have worked with the Town's peer review consultant and staff, and have prepared several iterations GOODMANS\\5620789.1 Go 0 dmans Page 4 of the Neighbourhood Design Plan, as well as updates to the supporting Urban Design Brief. A community consultation meeting was held respecting the Neighbourhood Design Plan in October 2007. We would also note that Brookfield and Smooth Run, have, together with certain other landowners in Clarington, jointly funded the preparation of a Municipality-wide Fiscal Impact Study that was finalized in March 2008. While Brookfield and Smooth Run have been able to reach a consensus with Clarington and other agencies on almost all issues that have been raised in respect of the Neighbourhood Design Plan and related planning applications, they are concerned that the processing of the applications has become unduly prolonged. In the spring of this year, Brookfield and Smooth Run had reached an understanding with Clarington staff that the Neighbourhood Design Plan was generally acceptable such that a final public open house for and approval of the Neighbourhood Design Plan could proceed in June, with the Proposed OP A and the first phase of each the Draft Plans and implementing zoning by-laws to be considered by Council after its summer recess. However, Clarington staff advised our clients in June that, because of other commitments, the Municipality would be defelTing the public open house for the Neighbourhood Design Plan until the fall, which in turn would further delay consideration of the Draft Plans and implementing zoning by-law and the Proposed OP A. Given that the applications were filed almost three years ago, Brookfield and Smooth Run are very concerned with this additional delay. They believe that appealing their applications to the Board is necessary to ensure that the protracted process is finally completed. North Street - Durham Regional Road 17 There is an outstanding issue involving the Region of Durham affecting the Proposed OP A that may not be resolved without the Board's assistance. The issue relates to the proposed realignment of Regional Road 17 (North Street) as shown on the Proposed OP A. North Street, which forms the western boundary of the Brookfield Lands and the North Village Neighbourhood, currently terminates at Concession Road 3 in very close proximity to the interchange of Concession Road 3 and Highway 35/115. MTO has advised that North Street must be realigned through the Brookfield Lands so that it intersects with Concession Road 3 at a point 300 metres to the east of the interchange. This realignment is reflected on the proposed Neighbourhood Design Plan, Proposed OP A and the Draft Plans, using standards based on a 60 kmlhr design speed. The Region of Durham has advised that the realigned North Street should instead reflect design standards based on a 70 kmlhr design speed. In our clients' view, such a high design speed is not necessary or desirable, given that this section of road is adjacent to future schools and terminates at a T intersection at Concession Road 3. The resulting alignment of North Street based on a 70 kmlhr design speed creates development blocks that are configured in such a way that result in undesirable GOODMANS\\5620789.' ,11 Go 0 dmans Page 5 and inefficient lotting, and therefore has significant negative impacts on the design of the Brookfield Draft Plan and the Smooth Run Draft Plan. The re-alignment of North Street proposed by the Region also has significant impacts on other properties with existing houses that currently have frontage on North Street that can be avoided by the alignment proposed by Brookfield and Smooth Run. Proposed Tributary Davlie:htine: - Ganaraska Ree:ion Conservation Authority There is also an outstanding issue respecting the Ganaraska Region Conservation Authority (the "GRCA") relating to the proposed "day-lighting" and re-naturalizing of a tributary that currently flows underground as a result of the historical installation of a farm tile drainage system in the southwest of the Neighbourhood. This tributary is located on the Smooth Run Lands. While the tributary is not identified on the Clarington Official Plan and is not addressed by the Proposed OP A, it is an issue that must be resolved prior to finalizing the Neighbourhood Design Plan and the Smooth Run Draft Plan and implementing zoning by-law. The day-lighting of the tributary was originally suggested in a sub-watershed planning study for the area, completed by Clarington in 2001, which, however, also provided that the proposed day-lighting would be subject to further detailed study. Our clients' consultants have reviewed the matter, and concluded that, from an environmental perspective, day-lighting the tributary provides no apparent benefit, and could, in fact, be detrimental. While Clarington staff have indicated that they are prepared to accept our clients' position regarding the tributary, our clients have not received a full response from GRCA on this issue. Our clients have made numerous requests to GRCA commencing in February 2008 to convene a meeting to discuss the issue, which have gone unanswered. Accordingly, our clients are very frustrated with GRCA's unresponsiveness. Conclusion and Enclosures For the above reasons, Brookfield and Smooth Run have instructed us to appeal to the Board in respect of the Proposed OP A, and their respective Draft Plans and implementing zoning by-laws. In support of the appeal of the Proposed OP A we have enclosed: 1. a completed OMB Appellant Forms (01); 2. a cheques in the amount of $125, payable to the Minister of Finance; and 3. a copy of the Proposed OPA. GOODMANS\\5620789.J Go 0 dmans If any further information is required, please do not hesitate to contact the undersigned. Yours very truly, GOODMANS LLP /\ '<' 11 ! \ ! j , i i j. .,1-1. :' 1 i, '-'\ '",/ I ~ Roslyn Houser ,I,'\' /1/ cc: Mr. Bruce Fischer, Smooth Run Mr. Tom Albani, Smooth Run Mr. Peter Schut, Brookfield Ms. Cynthia Bird, Brookfield Mr. Bryce Jordan, The Sernas Group Ene!. GOODMANS\\5620789.! Page 6 Barristers & Solicitors Goodmans 250 Yonge Street, Suite 2400 Toronto, Ontario Canada M5B 2M6 Telephone, 416.979.22\1 Facsimile, 416.979.1234 goodmans.ca Direct Line: 416.597.4119 rhouser@goodmans.ca August 7, 2008 Our File No.: 07.1593 Delivered Via Courier Municipality of CIa ring ton 40 Temperance Street Bowmanville, Ontario LlC 3A6 Attention: Ms, Patti Barrie, Clerk Dear Ms. Barrie: Re: Brookfield Homes (Ontario) Limited Appeal pursuant to Section 51(34) of the Planning Act Proposed Draft Plan of Subdivision No, S-C-2005-004 Municipality of Clarington and Smooth Run Developments Inc. Appeal pursuant to Section 51(34) of the Planning Act Proposed Draft Plan of Subdivision No, S-C-2005-003 Municipality of Clarington We are solicitors for Brookfield Homes (Ontario) Limited ("Brookfield") and for Smooth Rilll Developments Inc. ("Smooth Run"), the owners of abutting parcels of land located generally in an area bounded by Concession Road 3 to the north, Regional Road 17 to the west, Arthur Street to the east and the rail line to the south, in the former Village of Newcastle in the Municipality of Clarington. The location of the Brookfield parcel, which comprises approximately 34.9 hectares ("Brookfield Lands") and the location of the Smooth Run parcel, which comprises approximately 73.9 hectares ("Smooth Run Lands"), is shown on the attached plan. On behalf of Brookfield and Smootll Run, we are appealing to the Board pursuant to subsection 51(34) of the Planning Act from the failure of CIa ring ton to make a decision in respect of the above- referenced draft plans of subdivision in respect of the Brookfield Lands (the "Brookfield Draft Plan") and the Smooth Run Lands (the "Smooth Run Draft Plan") (collectively the "Draft Plans"). GOODMANS\\5620357.2 Goodmans Page 2 Both the Brookfield Draft Plan and the Smooth Run Draft Plan provide for a mix of low and medium density lots and blocks, together with park and school blocks and roads. The Brookfield Draft Plan could accommodate over 400 dwelling units and the Smooth Run Draft Plan could accommodate over 1150 dwelling units. The Draft Plans have been designed in a coordinated manner such that each contains part lots and blocks along their shared property line which when put together could accommodate in excess of approximately 60 additional dwelling units. Copies of both of the Draft Plans, revised as discussed below, are enclosed. Brookfield and Smooth also each filed an application for approval of an amendment to the Clarington Zoning By-law to implement their respective Draft Plans, concurrently with filing their applications for approval of the Draft Plans. Background Official Plan Designations and Policies The Brookfield Lands and the Smooth Run Lands are designated "Living Area" in the Durham Regional Official Plan. The policies of the Living Area designation of the Regional Official Plan permit the development of residential uses in a range of forms and densities. The Draft Plans conform with the policies ofthe Durham Regional Official Plan. The Land Use Map for the Newcastle Village Urban Area of the Clarington Official Plan designates most of botl1 the Brookfield Lands and the Smooth Run Lands "Urban Residential", with the exception of a portion of each adjacent to Concession Road 3 North Street which have a "Futme Urban Residential" designation. The policies of the Clarington Official Plan provide that lands in the Urban Residential designation will be used predominantly for residential uses in single, semi- detached, link and duplex house forms. The Futme Urban Residential designation on the Brookfield Lands and the Smooth Run Lands is comprised of the lands located within the area of influence defined by the Minimum Distance Separation Formula for an existing agricultmal operation located to the north. The special policies relating to this area provide that the Future Urban Residential designation will remain until the agricultural operation ceases. There are also various school, park and medium density residential overlay symbols shown on the Land Use Map on the Brookfield Lands and Smooth Run Lands. The Proposed Neighbourhood Design Plan The Clarington Official Plan generally divides its urban areas into a number of Neighbourhood Planning Units, each of which is delineated geographically on maps attached to the Official Plan and are ascribed a population and target housing mix. The Brookfield Lands and the Smooth Run Lands are located within the North Village Neighbourhood Planning Unit, and collectively comprise over 90% of all lands in the North Village Neighbourhood. . GOODMANS\\5620357.2 Go 0 dmans Page 3 The policies of the Clarington Official Plan require that prior to the consideration and approval of a draft plan of subdivision, the development proponent will generally be required to prepare a Neighbourhood Design Plan for the Neighbourhood Planning Unit. The Neighbourhood Design Plan is to be a visual interpretation of the future development of the entire subject Neighbourhood, and shall include: . Road alignments and standards, . Sidewalks, trail systems, walkways, and cycling and transit routes, . Potential lotting, . Siting of schools, parks, open space lands, storm water management facilities and other community/utility uses. Shortly after the submission of their applications for approval of their respective Draft Plans, Brookfield and Smooth Run jointly submitted a proposed Neighbourhood Design Plan for the North Village Neighbourhood. The Neighbourhood Design Plan submission was accompanied by a supporting Urban Design Brief and Functional Servicing Report. The Proposed OP A Concurrently with the submission of their respective applications for approval of their Draft Plans, Brookfield and Smooth Run also jointly submitted an application to amend Clarington's Official Plan (the "Proposed OP A"), the purpose of which is to facilitate approval of the Draft Plans and proposed implementing zoning by-laws. The Proposed OPA increases the population and housing unit targets for the North Village Neighbourhood to reflect urban residential densities more consistent with Provincial Policy, and as reflected in the proposed Neighbourhood Design Plan. The Proposed OP A also revises the road pattern and road widths provided for in the Neighbourhood, and refines the locations of schools and parks in the Neighbourhood, consistent with the Neighbourhood Design Plan. Processing of the Applications Brookfield and Smooth Run filed applications for approval of their respective Draft Plans and implementing zoning by-laws, the Proposed OPA, and the proposed Neighbourhood Design Plan in August and September of 2005. Clarington held a statutory public meeting respecting the applications in January 2006. In the report prepared by staff for the meeting, it was recommended that the applications be processed, and a community consultation process be undertaken for the Neighourhood Design Plan. Since the applications were filed, Brookfield and Smooth Run have worked with Clarington, and other interested agencies, in an attempt to finalize the Neighbourhood Design Plan for the North GOODMANS\\5620357.2 Go 0 dmans Page 4 Village Neighbourhood, and to resolve any issues identified respecting their respective Draft Plans and the Proposed OPA. At the request of Clarington, Brookfield and Smooth Run funded the retainer of an urban design consultant by the Town to peer review the Neighbourhood Design Plan. Our clients' consultants have worked with the Town's peer review consultant and staff, and have prepared several iterations of the Neighbourhood Design Plan, as well as updates to the suppOJiing Urban Design Brief. A community consultation meeting was held respecting the Neighbourhood Design Plan in October 2007. We would also note that Brookfield and Smooth Run, have, together with certain other landowners in Clarington, jointly funded the preparation of a Municipality-wide Fiscal Impact Study that was finalized in March 2008. We understand that the Neighbourhood Design Plan as revised by Brookfield and Smooth Run is generally acceptable to Clarington staff. Brookfield and Smooth Run have submitted revised Draft Plans that reflect the outcome of the discussions on the Neighbourhood Design Plan. There are some elements of the Neighbourhood Design Plan and Draft Plans respecting lot sizes and building form that require some further discussion with Clarington. However, our clients are confident that these are matters of detailed design that can be resolved. While Brookfield and Smooth Run have been able to reach a consensus with Clarington and other agencies on almost all issues that have been raised in respect of the Neighbourhood Design Plan and related planning applications, they are concerned that the processing of the applications has become unduly prolonged. In the spring of this year, Brookfield and Smooth Run had reached an understanding with Clarington staff that the Neighbourhood Design Plan was generally acceptable such that a final public open house for and approval of the Neighbourhood Design Plan could proceed in June, with the Proposed OP A and the first phase of cach the Draft Plans and implementing zoning by-laws to be considered by Council after its summer recess. However, Clarington staff advised our clients in June that, because of other commitments, the Municipality would be deferring the public open house for the Neighbourhood Design Plan until the fall, which in turn would further delay consideration of the Draft Plans and implementing zoning by-law and the Proposed OP A. Given that the applications were filed almost three years ago, Brookfield and Smooth Run are very concerned with this additional delay. They believe that appealing their applications to the Board is necessary to ensure that the protracted process is finally completed. Region of Durham and GRCA Issues There are two very specific outstanding issues involving the Region of Durham and the Ganaraska Region Conservation Authority (the "ORCA"), that it appears may not be resolved without the Board's assistance. GOODMANS\\5620357.2 Goodmans Page 5 The substantive issue involving the Region of Durham that remains umesolved pertains to the proposed realignment of Regional Road 17 (North Street) through the Brookfield Lands. North Street, which forms the western boundary of the Brookfield Lands, currently terminates at Concession Road 3 in very close proximity to the interchange of Concession Road 3 and Highway 35/115. MTO has advised that North Street must be realigned through the Brookfield Lands so that it intersects with Concession Road 3 at a point 300 metres to the east of the interchange. This realignment is reflected on the draft Neighbourhood Design Plan, Proposed OP A and the Draft Plans, using standards based on a 60 km/hr design speed. The Region of Durham has advised that the realigned North Street should instead reflect design standards based on a 70 kmJhr design speed. In our clients' view, such a high design speed is not necessary or desirable, given that this section of road is adjacent to future schools and terminates at a T intersection at Concession Road 3. The resulting alignment of North Street based on a 70 km/hr design speed creates development blocks that are configured in such a way that result in undesirable and inefficient lotting, and therefore has significant negative impacts on the design of the Brookfield Draft Plan and the Smooth Run Draft Plan. The re-alignment of North Street proposed by the Region also has significant impacts on other properties with existing houses that currently have frontage on North Street that can be avoided by the alignment proposed by Brookfield and Smooth Run. The outstanding issue involving the ORCA relates to the proposed "day-lighting" and re-naturalizing of a tributary that currently flows underground as a result of the historical installation of a farm tile drainage system in the southwest of the Neighbourhood. This tributary is located on lands owned by Smooth Run and the issue of its treatment needs to be resolved to finalize the Neighbourhood Design Plan and the Smooth Run Draft Plan. The day-lighting of the tributary was originally suggested in a sub-watershed planning study for the area, completed by Clarington in 200 I, which, however, also provided that the proposed day-lighting would be subject to further detailed study. Our clients' consultants have reviewed the matter, and concluded that, from an environmental perspective, day- lighting the tributary provides no apparent benefit, and could, in fact, be detrimental. While Clarington staff have indicated that they are prepared to accept our clients' position regarding the tributary, our clients have not received a full response from ORCA on this issue. Our clients have made numerous requests to ORCA commencing in February 2008 to convene a meeting to discuss the issue, which have gone unanswered. Accordingly, our clients are very frustrated with ORCA's unresponsiveness. Conclusion and Enclosures For the above reasons, Brookfield and Smooth Run have instructed us to appeal to the Board in respect ofthe Draft Plans and implementing zoning by-laws, and the Proposed OP A. In support of the appeal of the Brookfield Draft Plan and the Smooth Run Draft Plan, we have enclosed: GOODMANS\\5620357.2 co Goodmans Page 6 1. 2 completed OMB Appellant Forms (01); 2. 2 cheques, each in the amount of$125, payable to the Minister of Finance; and 3. a copy of the Brookfield Draft Plan and a copy of the Smooth Run Draft Plan. We note that Brookfield and Smooth Run are also appealing to the Board from Council's failure to enact its proposed amendment to Clarington's zoning by-law to implement the Draft Plans. Copies of the OMB Appellant Forms (01) and documentation in support of those appeals are also enclosed herewith. Yours very truly, GOODMANS LLP //Ill~ I(,t J Roslyn Houser cc: Mr. Bruce Fischer, Smooth Run Mr. Tom Albani, Smooth Run Mr. Peter Schut, Brookfield Ms. Cynthia Bird, Brookfield Mr. Bryce Jordan, The Semas Group Enc!. GOODMANS\\S6203572 Barristers & Solicitors Go 0 dmans 250 Yonge Slreet, Suile 2400 Toronto. Onlario Canada M5B 2M5 Telephone, 415.979.2211 Facsimile, 415.979.1234 goodmans.ca Direct Line: 416.597.4119 rhouser@gQodmans.ca August 7, 2008 Our File No.: 07-1593 Delivered Via Courier Ontario Municipal Board 655 Bay Street, Suite 1500 Toronto, ON M5G IE5 Attention: Mr. Patrick Hennessy. Secretary Dear Mr. Hennessy: Re: Brookfield Homes (Ontario) Limited Appeal pursuant to Section 34(11) of the Planning Act respecting a proposed amendment to Municipality of Clarington Zoning By-law Clarington File No. ZBA-2005-043 \... Draft Plan of Subdivision No, S-C-2005-004 and Smooth Run Developments Inc. Appeal pursuant to Section 34(11) of the Planning Act respecting a proposed amendment to Municipality of Clarington Zoning By-law Clarington File No, ZBA-2005-042 Draft }'Ian of Subdivision No. S.C-200S-003 We are solicitors for Brookfield Homes (Ontario) Limited ("Brookfield") and for Smooth Run Developments Inc. ("Smooth Run"), the owners of abutting parcels of land located generally in an area bounded by Concession Road 3 to the north, Regional Road 17 to the west, Arthur Street to the east and the rail line to the south, in the former Village of Newcastle in the Municipality of Clarington. The location of the Brookfield parcel, which comprises approximately 34.9 hectares ("Brookfield Lands") and the location of the Smooth Run parcel, which comprises approximately 73.9 hectares ("Smooth Run Lands"), is shown on the attached plan. On behalf of Brookfield and Smooth Run, we are appealing to the Board from the failure of Clarington to make decisions in respect of their respective applications for approval of proposed amendments to Clarington's Zoning By-law in respect of the Brookfield Lands and the Smooth Run Lands, pursuant to subsection 34(11) of the Planning Act (the "Proposed ZBAs"). GOODMANS\\5616550.6 Goodmans Page 2 The Proposed Zoning Amendments and Draft Plans The purpose of the Proposed ZBAs is to implement the above-referenced residential draft plans of subdivision for the Brookfield Lands (the "Brookfield Draft Plan") and for the Smooth Run Lands (the "Smooth Run Draft Plan") (collectively, the "Draft Plans"). Both the Brookfield Draft Plan and the Smooth Run Draft Plan provide for a mix of low and medium density lots and blocks, together with park and school blocks and roads. The Brookfield Draft Plan could accommodate over 400 dwelling units and the Smooth Run Draft Plan could accommodate over I 150 dwelling units. The Draft Plans have been designed in a coordinated manner such that each contains part lots and blocks along their shared property line which when put together could accommodate in excess of approximately 60 additional dwelling units. Copies of both of the Draft Plans, revised as discussed below, are enclosed. The Proposed ZBAs apply zone categories to the Brookfield Lands and the Smooth Run Lands used in the Clarington Zoning By-law, with special categories as necessary, to permit the development proposed by the Draft Plans. A holding symbol is applied to the lands within the lands designated Future Urban Residential to implement the policy from the Clarington Official Plan discussed below. Background Ofticial Plan Designations and Policies The Brookfield Lands and the Smooth Run Lands are designated "Living Area" in the Durham Regional Official Plan. The policies of the Living Area designation of the Regional Official Plan permit the development of residential uses in a range of forms and densities. 111e Draft Plans and the Proposed ZBAs conform to the policies of the Durham Regional Official Plan. The Land Use Map for the Newcastle Village Urban Area of the ClaringtOl1 Official Plan designates most of both the Brookfield Lands and the Smooth Run Lands "Urban Residential", with the exception of a portion of each adjacent to Concession Road 3 North Street which have a "Future Urban Residential" designation. The policies of the Clarington Official Plan provide that lands in the Urban Residential designation will be used predominantly for residential uses in single, semi- detached, link and duplex house forms. The Future Urhan Residential designation on the Brookfield Lands and the Smooth Run Lands is comprised of the lands located within the area of influence defined by the Minimum Distance Separation Formula for an existing agricnltural operation located to the north. The special policies relating to this area provide that the Future Urhan Residential designation will remain until the agricultural operation ceases. There are also various school, park and medium density residential overlay symbols shown on the Land Use Map on the Brookfield Lands and Smooth Run Lands. GOODMANS\\5616550.6 ."" (~oodlnans Page 3 The Proposed Neighbourhood Design Plan The Clarington Official Plan generally divides its urban areas into a number of Neighbourhood Planning Units, each of which is delineated geographically on maps attached to the Official Plan and ascribed a population and target housing mix. The Brookfield Lands and the Smooth Run Lands are located within the North Village Neighbourhood Planning Unit, and collectively comprise over 90% of the lands in the NOlih Village Neighbourhood. The policies of the Clarington Official Plan require that prior to the consideration and approval of a draft plan of subdivision, the development proponent will generally be required to prepare a Neighbourhood Design Plan for the Neighbourhood Planning Unit. The Neighbourhood Design Plan is to be a visual interpretation of the future development of the entire subject Neighbourhood, and shall include: . Road alignments and standards, . Sidewalks, trail systems, walkways, and cycling and transit routes, . Potential lotting, . Siting of schools, parks, open space lands, storm water management facilities and other community/utility uses. Shortly after the submission of their applications for approval of their respective Draft Plans and Proposed ZBAs, Brookfield and Smooth Run jointly submitted a proposed Neighbourhood Design Plan for the North Village Neighbourhood. The Neighbourhood Design Plan submission was accompanied by a supporting Urban Design Brief and Functional Servicing Report. The Proposed OP A Concurrently with the submission of their applications respecting their Draft Plan and Proposed ZBAs, Brookfield and Smooth Run also jointly submitted an application to amend Clarington's Official Plan (the "Proposed OP A"), the purpose of which is to facilitate approval of the Draft Plans and Proposed ZBAs. The Proposed OP A increases the population and housing unit targets for the North Village Neighbourhood to reflect urban residential densities more consistent with Provincial Policy and as reflected in the proposed Neighbourhood Design Plan. The Proposed OP A also revises the road pattern and road widths provided for in the Neighbourhood, and refines the locations of schools and parks in the Neighbourhood, consistent with the Neighbourhood Design Plan. Processing of the Applications Brookfield and Smooth Rnn filed complete applications for approval of their respective Draft Plans, and Proposed ZBAs and for approval of their jointly Proposed OPA and Neighbourhood Design Plan in August and September of 2005. Clarington held a statutory public meeting respecting the GOODMANS\\5616550.6 ,... (i-()0 drIlanS Page 4 applications in January 2006. In the report prepared by staff for the meeting, it was recommended that the applications be processed, and a community consultation process be undertaken for the Neighbourhood Design Plan. Since the applications were filed, Brookfield and Smooth Run have worked with Clarington, and other interested agencies, in an attempt to finalize the Neighbourhood Design Plan for the North Village Neighbourhood, and to resolve any issues identified respecting their respective Draft Plans and Proposed lBAs and the Proposed OPA. At the request of Clarington, Brookfield and Smooth Run funded the retainer of an urban design consultant by the Town to peer review the Neighbourhood Design Plan. Our clients' consultants have worked with the Town's peer review consultant and staff, and have prepared several iterations of the Neighbourhood Design Plan, as well as updates to the supporting Urban Design Brief. A community consultation meeting was held respecting the Neighbourhood Design Plan in October 2007. We would also note that Brookfield and Smooth Run, have, together with certain other landowners in Clarington, jointly funded the preparation of a Municipality-wide Fiscal Impact Study that was finalized in March 2008. We understand that the Neighbourhood Design Plan as revised by Brookfield and Smooth Run is generally acceptable to Clarington staff. Brookfield and Smooth Run have submitted revised Draft Plans that reflect the outcome of the discussions on the Neighbourhood Design Plan. There are some elements of the N eighbourhood Design Plan and Draft Plans respecting lot sizes and building form that require some further discussion with Clarington. However, our clients are confident that these are matters of detailed design that can be resolved. While Brookfield and Smooth Run have been able to reach a consensus with Clarington and otller agencies on almost all issues that have been raised in respect of the Neighbourhood Design Plan and related planning applications, they are concerned that the processing of the applications has become unduly prolonged. In the spring of this year, Brookfield and Smooth Run had reached an understanding with Clarington staff that the Neighbourhood Design Plan was generally acceptable such that a final public open house for and approval of the Neighbourhood Design Plan could proceed in June, with the Proposed OP A and the first phase of each the Draft Plans and Proposed lBAs to be considered by Council after its summer recess. However, Clarington staff advised our clients in June that, because of other commitments, the Municipality would be deferring the public open house for the Neighbourhood Design Plan until the fall, which in turn would further delay consideration of the Draft Plans, Proposed OPA and Proposed lBAs. Given that the applications were filed almost three years ago, Brookfield and Smooth Run are very concerned with this additional delay. They believe that appealing their applications to the Board is necessary to ensure that the protracted process is finally completed. GOODMANS\\56J 6550.6 r'!" Goocl1nans Page 5 Rel!.ion of Durham and GRCA Issues There are two very specific outstanding issues involving the Region of Durham and the Oanaraska Region Conservation Authority (the "ORCA"), that it appears may not be resolved without the Board's assistance. The substantive issue involving the Region of Durham that remains unresolved pertains to the proposed realignment of Regional Road 17 (North Street) through the Brookfield Lands. North Street, which forms the western boundary of the Brookfield Lands, currently. terminates at Concession Road 3 in very close proximity to the interchange of Concession Road 3 and Highway 35/115. MTO has advised that North Street must be realigned through the Brookfield Lands so that it intersects with Concession Road 3 at a point 300 metres to the east of the interchange. This realignment is reflected on the draft Neighbourhood Design Plan, Proposed OPA and the Draft Plans, using standards based on a 60 km/hr design speed. The Region of Durham has advised that the realigned Nortll Street should instead reflect design standards based on a 70 km/hr design speed. In our clients' view, such a high design speed is not necessary or desirable, given that this section of road is adjacent to future schools and terminates at a T intersection at Concession Road 3. The resulting alignment of North Street based on a 70 km/hr design speed creates development blocks that are configured in such a way that result in undesirable and inefficient lotting, and therefore has significant negative impacts on the design ofthe Brookfield Draft Plan and the Smooth Run Draft Plan. The re-alignment of North Street proposed by the Region also has significant impacts on other properties with existing houses that currently have iYontage on North Street that can be avoided by the alignment proposed by Brookfield and Smooth Run. The outstanding issue involving the ORCA relates to the proposed "day-lighting" and re-naturalizing of a tributary that currently flows underground as a result of the historical installation of a farm tile drainage system in the southwest of the Neighbourhood. This tributary is located on lands owned by Smooth Run, and the issue of its treatment needs to be resolved to finalize the Neighbourhood Design Plan, the Smooth Run Draft Plan and the Proposed ZBA for the Smooth Run Lands. The day-lighting of the tributary was originally suggested in a sub-watershed planning study for the area, completed by Clarington in 2001, which, howcver, also provided that the proposed day.lighting would be subject to further detailed study. Our clients' consultants have reviewed the matter, and concluded that, from an environmental perspective, day-lighting the tributary provides no apparent benefit, and could, in fact, be detrimental. While Clarington staff have indicated that they are prepared to accept our clients' position regarding the tributary, our clients have not received a full response from ORCA on this issue. Our clients have made numerous requests to ORCA commencing in February 2008 to convene a meeting to discuss the issue, which have gone unanswered. Accordingly, our clients are very frustrated with ORCA's unresponsiveness. GOODMANS\\56J 6550.6 (i-oodmans Page 6 Conclusion and Enclosures For the above reasons, Brookfield and Smooth Run have instructed us to appeal to the Board in respect of the Draft Plans, Proposed ZBAs and Proposed OP A. In support of the appeals of the Proposed ZBAs, we have enclosed: 1. two completed OMB Appellant Forms (01); 2. two cheques, each in the amount of$125 payable to the Minister of Finance; 3. a copy of the Proposed ZBA for each of the Brookfield Lands and the Smooth Run Lands; 4. copies of the Notices of Public Meeting, Minutes and Staff Report considered at that meeting; 5. an Affidavit sworn by Judy Bates certifying that Council neglected to make a decision on the Proposed ZBA applications within 120 days, that the prescribed information in support of the applications were submitted to the Municipality, and that the appeals are being filed at least 120 days after the fulfillment of this requirement; 6. an Affidavit sworn by Judy Bates certifying that copies of the above materials were provided to the Clerk of the Municipality of Clarington; and 7. a copy ofa map of the Brookfield and Smooth Run Lands. If any further information is required, please do not hesitate to contact the undersigned. Yours very truly, GOODMANS LLP i i ! ! ' , i . f i ,J, i i A.- c., , Ro'~iYli Houser cc: Mr. Bruce Fischer, Smooth Run Mr. Tom Albani, Smooth Run Mr. Peter Schut, Brookfield Ms. Cynthia Bird, Brookfield Mr. Bryce Jordan, The Sernas Group Enc!. GOODMANS\\5GI6550.6 Barristers & Solicitors Goodmans 250 Yonge Street, Suite 2400 Toronto, Ontario Canada M5B 2M6 Telephone,4t6.979.22lt Facsimile, 416.979.\234 goodmans.ca August 7,2008 Direct Line: 416.597.4119 rhouser@goodmans.ca Our File No.: 04-1205 By Courier Municipality of elarington 40 Temperance Street, Bowmanville, Ontario, L1C 3A6 Attention: Ms, Patti Barrie, Clerk Dear Ms. Barrie: Re: West Diamond Properties Inc. and Players Business Park Ltd. Part Lot 17, Concession 2, Municipality of CIa ring ton ("Clarington") Notice of Appeal Pursuant to Section 51(34) ofthe Planning Act Draft Plan of Subdivision No, S-C-2004-004 We are the solicitors for West Diamond Properties Inc. and Players Business Park Ltd. (hereinafter collectively referred to as "West Diamond"). West Diamond has applied to Clarington for approval of the above-referenced draft plan of subdivision (the "Draft Plan"), respecting an approximately 40.4 hectare parcel of vacant land owned by West Diamond fronting on the west side of Green Road, north of King Street in the Bowmanville Urban Area of Clarington (the "Subject Lands"). On behalf of West Diamond, we are appealing to the Board from Clarington's failure of to make a decision in respect of the Draft Plan pursuant to subsection 51(34) of the Planning Act. The Draft Plan is comprised of a mix of low and medium density lots and blocks that would accommodate approximately 612 dwelling units, together with a neighbourhood park block, a parkette block and roads. PlanninJ! BackJ!round The Subject Lands are designated "Living Area" in the Durham Regional Official Plan. The policies of the Living Area designation of the Regional Official Plan permit the development of residential uses in a range of fOllliS and densities. The Clarington Official Plan designates the Subject Lands as "Urban Residential" on the Land Use Map for the Bowmanville Urban Area. The policies of the Clarington Official Plan provide that the Goodmans Page 2 lands in the Urban Residential designation will be used predominantly for residential uses in single, semi-detached, link and duplex house forms, with medium and high density residential uses to be generally in those locations identified by special overlay symbols on the Land Use Map. The Clarington Official Plan generally divides its Urban Areas into a number of Neighbourhood Planning Units, each of which is delineated geographically on maps attached to the Official Plan. The Subject Lands are located within the Brookhill Neighbourhood Planning Unit. The policies of the Clarington Official Plan require that the preparation of a Secondary Plan is generally not required prior to development within a Neighbourhood Planning Unit, but that prior to the approval of a draft plan of subdivision the development proponent will be required to prepare a Neighbourhood Design Plan for the relevant Neighbourhood Planning Unit. The Neighbourhood Design Plan is to illustrate the detailed design components of the future development of the Neighbourhood, such as: lotting fabric, roads, sidewalks, trails, walkways, cycling and transit routes, and the location of schools, parks, open space lands, storm wa,ter management facilities and other community/utility facilities. Processinf! of the West DiamondAvv/ications West Diamond originally filed applications with Clarington for the approval of the Draft Plan, and an implementing amendment to Clarington's zoning by-law on August 22, 2003. At that time, Clarington refused to accept the applications, and returned them with a letter stating that the applications were "deemed to be premature" because Clarington was in the process of undertaking a Sub-Watershed Study for the Neighbourhood. The letter also stated that a Neighbourhood Design Plan would be required in accordance with the policies of the Official Plan, and that Clarington would not commence consideration of a Neighbourhood Design Plan until the Sub-Watershed Study was complete. At that time, West Diamond received assurances that the Sub-Watershed Study would be completed in May 2004. West Diamond actively pmiicipated in the consultation process for the preparation of the Sub- Watershed Study that was commenced in October 2002, and in fact funded a portion of the study. The final Sub-Watershed Study was not ultimately completed until November 2005. In February 2004, Clarington Council adopted a report from staff recommending that a Secondary Plan be prepared as a amendment to the Clarington Official Plan to guide the detailed design of the Brookhill Neighbourhood through a study process led by the Municipality. Staffs recommendation that the design for the Brookhill Neighbourhood be undertaken by way of Secondary Plan, rather than through the preparation of a Neighbourhood Design Plan by landowners as contemplated by the policies of the Clarington Official Plan, was based on staffs view that the principles of new urbanism intended for Brookhill could be better achieved through a Secondary Plan. As a result of its concerns with the delay that would likely result from the design for the Brookhill Neighbourhood being undertaken through a municipal-led Secondary Plan exercise, West DimTIond re-submitted its applications [or approval of the Draft Plan and implement zoning by-law in May G-oodmans Page 3 2004. Following the resolution of a dispute with Clarington respecting applicable fees, Clarington acknowledged that the applications were complete as of October, 15,2004. At the time West Diamond re-submitted its applications in May 2004, it also submitted to Clarington, jointly with the other major landowners in the Brookhill Neighbourhood, a proposed detailed framework and workplan for the preparation of a Neighbourhood Design Plan that would specifically focus on the new urbanism principles that Clarington had expressed a desire to have reflected in the design of the Neighbourhood. It was proposed that the Neighbourhood Design Plan study be funded by West Diamond, with extensive Clarington Council and staff involvement and public consultation. However, in June 2004 Clarington rejected the landowners' proposed Neighbourhood Design Plan process, but also decided to defer the initiation of the planning study for the Brookhill Secondary Plan until 2005, citing a lack of financial resources as the reason for the delay. As a result of Clarington's apparent unwillingness to move forward with planning for the Brookhill Neighbourhood, in August 2004 West Diamond filed appeals to the Board from Clarington's failure to make a decision on the Draft Plan and implementing zoning by-law amendment. However, Clarington refused to forward West Diamond's Draft Plan appeal to the Board, based on Clarington's interpretation that the statutory timeframe for an appeal had not expired. Clarington staff also wrote to West Diamond in November 2004, advising that in staffs opinion the Draft Plan would trigger the need for certain amendments to Clarington's Official Plan, and indicating that West Diamond's planning applications would not be processed until Clarington had finalized a Secondary Plan for Brookhill. In December 2004, Clarington held a statutory public meeting in respect of West Diamond's planning applications. The staff report considered at that meeting recommended that the applications be referred back to staff for further processing and the preparation of a Secondary Plan for the Brookhill Neighbourhood. At the same meeting, Council adopted another report from staff recommending that Clarington proceed with the Secondary Plan study for Brookhill forthwith, as a result of the West Diamond appeals. While West Diamond did not agree with Clarington staffs position that approval the Draft Plan would require amendments to the Clarington Official Plan, out of an abundance of caution, it filed an Official Plan amendment application on December 29, 2004. Following further discussions with Clarington staff in early 2005, West Diamond decided, in an effort to establish a mutually cooperative process with Clarington for the preparation of a Design Plan for the Brookhill Neighbourhood and approval of its Draft Plan, to withdraw its Official Plan amendment application and to defer its appeals respecting the Draft Plan and implementing zoning by-law amendment. West Diamond's decision to do so, and to pmiicipate in the Municipality's process for the preparation of a Secondary Plan for the Brookhill Neighbourhood, was based on its understanding that Clarington intended to commence the study for the Secondary Plan in early 2005, and to complete it on an expeditious basis. Good.mans Page 4 Adoption of the Brookhill Secondary Plan (OPA No. 60) In April 2005, Clarington retained a consulting team to prepare a Secondary Plan and Urban Design Guidelines for the Brookhill Neighbourhood. In October and November 2005, the consultants held a series of design charrettes and released a report that documented the design concepts that were developed through the charrettes. No further progress appears to have been made with respect to the study until the summer of 2007, when West Diamond requested a meeting with Clarington staff to discuss the progress of the Secondary Plan. At a meeting in July 2007, Clarington staff advised that it was their intention to hold public meetings respecting the Secondary Plan in the fall of 2007, and present the Plan to Council for adoption by the end of 2007. The statutory public meeting was ultimately held in November 2007, but the Secondary Plan (OPA No. 60) was not finally adopted by Clarington Council until May 6, 2008. OPA No. 60 has been submitted to the Regional Municipality of Durham for approval, and we understand that a decision by the Region is imminent. Appeal of the Draft Plan West Diamond has filed with Clarington a revision to the Draft Plan that implements the details of OPA No. 60. A copy of the Draft Plan is enclosed. As noted above, West Diamond originally filed its application for approval of the Draft Plan almost 5 years ago. West Diamond is prepared to work with Clarington staff to finalize the details of the Draft Plan and related conditions of approval. However, given the difficulties West Diamond has experienced in having Clarington process its planning applications, and the protracted process to finalize the Brookhill Neighbourhood Secondary Plan, West Diamond is concerned that without the Board's assistance the process to finalize the Draft Plan and implementing zoning by-law amendment may become Wlfeasonably delayed. Accordingly, West Diamond has instructed us to appeal the Draft Plan to the Board. If Clarington processes and approves the Draft Plan in a timely manner, West Diamond is prepared to withdraw its appeal. In support of this appeal, we are enclosing herewith two copies of a completed OMB Appellant Form (AI) and a cheque in the amount of $125.00 payable to the Minister of Finance, as the Board's fee to file the appeal. ~ , r'! Ci-o0 drrlans Page 5 We note West Diamond is also appealing to the Board from Council's failure to enact its proposed amendment to Clarington's zoning by-law to implement the Draft Plan. A copy of the OMB Appellant Form (01) and documentation in support ofthat appeal is also enclosed herewith. Yours very truly, GOODMANS LLP .-,..-., , \ ,I) _, '. I ..'. /. / ! I. /7 f.-..// tlJJ \i" . r ,. Ros y~ Houser /,v '(j Ene!. ec: Mr. Bruce Fischer, West Diamond Mr. Tom Albani, West Diamond Mr. Peter Smith, Bousfields Inc. Ms. Kate Cooper, Bousfields Inc. GOODMANSIHDWER\5618389.2 Ir 8arristers & Solicitors Go 0 dmans 150Yonge Street, Suite 1400 Toronto, Ontario Canada M5S 1M6 Telephone, 416.979.1111 Facsimile, 416.979.1134 goodmans.ca Direct Line: 416.597.4119 rhouser@goodmans.ca August 7,2008 Our File No.: 04-1205 By Courier Ontario Municipal Board 655 Bay Street, Suite 1500 Toronto, Ontmio M5G lE5 Attention: Mr. Patrick Hennessv, Secretary Dear Mr. Hennessy: . Re: West Diamond Properties Inc. and Players Busincss Park Ltd. Part Lot 17, Concession 2, Mnnicipality of Clarington ("Clarington") Proposed Amendment to Clarington Zoning By-law Notice of Appeal Pursuant to Section 34(11) of the Planning Act Related File - Draft Plan of Subdivision No, S-C-2004-004 We are the solicitors for West Diamond Properties Inc. and Players Business Park Ltd. (hereinafter collectively referred to as "West Diamond"). West Diamond has applied to Clarington for approval of an amendment to the Clarington Zoning By-law in conjunction with an application for a draft plan of subdivision in respect of a 40.4 hectare parcel of vacant land owned by West Diamond fronting on the west side of Green Road, north of King Street in the BOlVmanville Urban Area of Clarington (the "Subject Lands"). On behalf of West Diamond, we are appealing to the Board from Clarington's failure of to make a decision in respect of the approval of an amendment to the Clarington By-law ("Proposed ZBA") pursuant to subsection 34(11) of the Planning Act. The PUrf]ose of the ProfJosed ZBA The purpose of the Proposed ZBA is to implement the above-referenced residential draft plan of subdivision for the Subject Lands (the "Draft Plan"). The Draft Plan is comprised of a mix of low and medium density lots and blocks that would accommodate approximately 612 dwelling units, together with a neighbourhood park block, a parkette block and roads. GOOOMANS\\562037U. J Ci-o()dl11ans Page 2 The Proposed ZBA applies zone categories to the Brookfield Lands and the Smooth Run Lands used in the Clarington Zoning By-law, with special categories as necessary, to permit the development proposed by the Draft Plan. Planninf! Backf!round The Subject Lands are designated "Living Area" in the Durham Regional Official Plan. The policies of the Living Area designation of the Regional Official Plan permit the development of residential uses in a range of forms and densities. The Clarington Official Plan designates the Subject Lands as "Urban Residential" on the Land Use Map for the Bowmanville Urban Area. The policies of the Clarington Official Plan provide that the lands in the Urban Residential designation will be used predominantly for residential uses in single, semi-detached, link and duplex house forms, with medium and high density residential uses to be generally in those locations identified by special overlay symbols on the Land Use Map. The Clarington Official Plan generally divides its Urban Areas into a number of Neighbourhood Planning Units, each of which is delineated geographically on maps attached to the Official Plan. The Subject Lands are located within the Brookbill Neighbourhood Planning Unit. The policies of the Clarington Official Plan require that the preparation of a Secondary Plan is generally not required prior to development within a Neighbourhood Planning Unit, but that prior to the approval of a draft plan of subdivision the development proponent will be required to prepare a Neighbourhood Design Plan for the relevant Neighbourhood Planning Unit. The Neighbourhood Design Plan is to illustrate the detailed design components of the future development of the Neighbourhood, such as: lotting fabric, roads, sidewalks, trails, walkways, cycling and transit routes, and the location of schools, parks, open space lands, storm water management facilities and otl1er community/utility facilities. Processillf! of the West Diamond AVfJlicatiolls West Diamond originally filed applications with Clarington for the approval of the ZBA and the Draft Plan on August 22, 2003. At that time, Clarington refused to accept the applications, and returned them with a letter stating that the applications were "deemed to be premature" because Clarington was in the process of undertaking a Sub.Watershed Study for the Neighbourhood. The letter also stated that a Neighbourhood Design Plan would be required in accordance with the policies of the Official Plan, and that Clarington would not commence consideration of a Neighbourhood Design Plan until the Sub-Watershed Study was complete. At that time, West Diamond received assurances that the Sub-Watershed Study would be completed in May 2004. West Diamond actively participated in the consultation process for the preparation of the Sub- Watershed Study that was commenced in October 2002, and in fact funded a portion of the study. The final Sub-Watershed Study was not ultimately completed until November 2005. GOODMANS\\5620370.1 Cioodmans Page 3 In February 2004, Clarington Council adopted a report from staff recommending that a Secondary Plan be prepared as a amendment to the Clarington Official Plan to guide the detailed design of the Brookhill Neigbbourhood through a study process led by the Municipality. Staffs recommendation that the design for the Brookbill Neighbourhood be undertaken by way of Secondary Plan, rather than through the preparation of a Neighbourhood Design Plan by landowners as contemplated by the policies of the Clarington Official Plan, was based on staffs view that the principles of new urbanism intended for Brookbill could be better achieved through a Secondary Plan. As a result of its concerns with the delay that would likely result from the design for the Brookbill Neighbourhood being undertaken through a municipal-led Secondary Plan exercise, West Diamond re-submitted its applications for approval of the Draft Plan and the Proposed ZBA in May 2004. Following the resolution of a dispute with Clarington respecting applicable fees, Clarington acknowledged that the applications were complete as of October, 15,2004. At the time West Diamond re-submitted its applications in May 2004, it also submitted to Clarington, jointly with the other major landowners in the Brookbill Neighbourhood, a proposed detailed framework and workplan for the preparation of a Neighbourhood Design Plan that would specifically focus on the new urbanism principles that Clarington had expressed a desire to have reflected in the design of the Neighbourhood. It was proposed that the Neighbourhood Design Plan study be funded by West Diamond, with extensive Clarington Council and staff involvement and public consultation. However, in June 2004 Clarington rejected the landowners' proposed Neighbourhood Design Plan process, but also decided to defer the initiation of the planning study for the Braokhill Secondary Plan until 2005, citing a lack of financial resources as the reason for the delay. As a result of Clarington's apparent unwillingness to move forward with planning for the Brookhill Neighbourhood, in August 2004 West Diamond filed appeals to the Board from Clarington's failure to make a decision on the Draft Plan and implementing zoning by-law amendment. However, Clarington refused to forward West Diamond's Draft Plan appeal to the Board, based on Clarington's interpretation that the statutory timeframe for an appeal had not expired. Clarington staff also wrote to West Diamond in November 2004, advising that in staffs opinion the Draft Plan would trigger the need for certain amendments to Clarington's Official Plan, and indicating that West Diamond's planning applications would not be processed until Clarington had finalized a Secondary Plan for Brookbill. In December 2004, Clarington held a statutory public meeting in respect of West Diamond's planning applications. The staff report considered at that meeting recommended that the applications be referred back to staff for further processing and the preparation of a Secondary Plan for the Brookbill Neighbourhood. At the same meeting, Council adopted another report from staff recommending that Clarington proceed with the Secondary Plan study for Brookbill forthwith, as a result of the West Diamond appeals. GOODMA,"<S\\5620370.1 Ci-oodmans Page 4 While West Diamond did not agree with Clarington staffs position that approval the Draft Plan would require amendments to the Clarington Official Plan, out of an abundance of caution, it filed an Official Plan amendment application on December 29, 2004. Following fmther discussions with Clarington staff in early 2005, West Diamond decided, in an effort to establish a mutually cooperative process with Clarington for the preparation of a Design Plan for the Brookhill Neighbourhood and approval of its Draft Plan, to withdraw its Official Plan amendment application and to defer its appeals respecting the Draft Plan and the proposed ZBA. West Diamond's decision to do so, and to participate in the Municipality's process for the preparation of a Secondary Plan for the Brookhill Neighbourhood, was based on its understanding that C1arington intended to commence the study for the Secondary Plan in early 2005, and to complete it on an expeditious basis. Adoption o(the Brookhill Secondary Plan (OPA No. 60) In April 2005, Clarington retained a consulting team to prepare a Secondary Plan and Urban Design Guidelines for the Brookhill Neighbourhood. In October and November 2005, the consultants held a series of design charrettes and released a report that documented the design concepts that were developed through the charrettes. No further progress appears to have been made with respect to the study until the summer of 2007, when West Diamond requested a meeting with Clarington staff to discuss the progress of the Secondary Plan. At a meeting in July 2007, Clarington staff advised that it was their intention to hold public meetings respecting the Secondary Plan in the fall of 2007, and present the Plan to Council for adoption by the end of 2007. The statutory public meeting was ultimately held in November 2007, but the Secondary Plan (OP A No. 60) was not finally adopted by C1arington Council until May 6, 2008. OPA No. 60 has been submitted to the Regional Municipality of Durham for approval, and we understand that a decision by the Region is imminent. The Revised Draft Plan West Diamond has filed with Clarington a revision to the Draft Plan that implements the details of OPA No. 60, a copy of which Draft Plan is enclosed. The Proposed ZBA permits the development contemplated by the revised Draft Plan. As noted above, West Dian10nd originally filed its application for approval of the Draft Plan and the Proposed ZBA almost 5 years ago. West Diamond is prepared to work with Clarington staff to finalize the details of the Draft Plan, the related conditions of approval and the Proposed ZBA. However, given the difficulties West Diamond has experienced in having Clarington process its planning applications, and the protracted process to finalize the Brookhill Neighbomhood Secondary Plan, West Diamond is concerned that without the Board's assistance the process to finalize the Draft Plan and the Proposed ZBA amendment may become unreasonably delayed. Accordingly, West Diamond has instructed us to appeal the Proposed ZBA to the Board. West Diamond is also appealing to the Board from Council's failure to approve the Draft Plan. If Clarington processes and GOODMANS\\5620370.1 (i-oodmans Page 5 approves the Draft Plan and Proposed ZBA in a timely manner, West Diamond is prepared to withdraw the appeals. As noted above, in August 2004 West Diamond filed an appeal with the Board respecting the Proposed ZBA. At that time the Board assigned Z040108 and PL040851 as the file and case numbers for the appeal. However, as also noted above, we subsequently requested that the Board hold the appeal in abeyance. Since we are unsure as to whether these files are still open at the Board, we are filing the new appeal enclosed. In support of this appeal, we are enclosing the following: 1. a completed OMB Appellant Form (01); 2. a cheque in the amount of$125 payable to the Minister of Finance; 3. a copy of the Proposed ZBA; 4. a copy of the Notive of Public Meeting, Minutes and Staff Report Considered at that meeting; 5. Affidavit sworn by Judy Bates celiifying that Council neglected to make a decision on the Draft Plan within 120 days that the prescribed information in support of the appeal was submitted to .the Municipality and that the appeal is being filed at least 120 days after the fulfillment of this requirement; 6. Affidavit sworn by Judy Bates certifying that copies of the above materials were provided to the Clerk of the Municipality of CIa ring ton; and 7. a copy of a map of the Brookfield Lands. If further information is required, please do not hesitate to contact the undersigned. Yours very truly, GOODMANS LLP , ! "/' Roslyn Houser Enc!. GOODMANS\\5620J70.J G.oodmans Page 6 cc: Mr. Bruce Fischer, West Diamond Mr. Tom Albani, West Diamond Mr. Peter Smith, Bousfields Inc. Ms. Kate Cooper, Bousfields Inc. GOODMANS\\S620370.!