HomeMy WebLinkAboutPSD-022-09Ltadiag tke Wuy
REPORT
PLANNING SERVICES
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE /~ ~) /~ j
Date: Monday, February 23, 2009 ~~p~l,~~Dn~`-t~~ ~13~ "
Report #: PSD-022-09 File #: COPA2005-0010 By-law #:
and ZBA 2005-0058
Subject: APPEAL TO THE ONTARIO MUNICIPAL BOARD OF OFFICIAL PLAN
AMENDMENT AND ZONING BY-LAW AMENDMENT APPLICATIONS
APPLICANT: BOWMANVILLE CREEK DEVELOPMENTS INC.
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report PSD-022-09 be received for information; and
2. THAT all interested parties listed in this report and any delegation be advised of
Council's decision.
Submitted by: Reviewed by:
David . Crome, MCIP, RPP
Director of Planning Services
DJ/COS/df
12 February 2009
~ ~..~Q~-'~-
Franklin Wu,
Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T (905)623-3379 F (905)623-0830
REPORT NO.: PSD-022-09
PAGE 2
1.0 BACKGROUND
1.1 On November 22, 2005, staff received Official Plan amendment and rezoning
applications from Bowmanville Creek Developments Inc. to permit general retail
uses in excess of 929 mZ (10,000 ftZ) and one financial institution in addition to
permitted highway commercial uses.
1.2 On April 1, 2008, staff received revised Official Plan amendment and rezoning
applications from Bowmanville Creek Developments Inc.
1.3 On June 2, 2008, a statutory Public Meeting was held for the revised
applications. This was followed by staff reports for these applications on July 7,
2008, November 3, 2008 and December 1, 2008.
1.4 During the summer, staff met with the proponent several times to discuss the
conditions pertaining to the proposed terms and timeframe for the construction of
the hotel; the exclusion of the fitness centre use from the list of permitted uses;
the overall retail cap and size of stores; and the format of the proposed Official
Plan Amendment and site-specific Zoning By-law.
1.5 On December 1, 2008, the General Purpose and Administration Committee
recommended to Council the following:
Resolution #GPA-669-08
"1. THAT Addendum 3 to Report PSD-077-08 be received;
2. THAT Official Plan Amendment No. 54 to the Clarington Official Plan to
provide a wider range of commercial uses on the lands owned by
Bowmanville Creek Developments Inc. be APPROVED as indicated in
Attachment 1 to Addendum 3PSD-077-08 and that the necessary by-law
be PASSED at such time as the applicant has brought their accounts with
the Municipality up to date;
3. THAT the application to amend the Municipality of Clarington Zoning By-
law 84-63, as amended, be APPROVED and that the by-law as contained
in Attachment 2 to Addendum 3PSD-077-08 be PASSED at such time as
the applicant has brought their accounts with the Municipality up to date;
4. THAT, subject to Recommendation 5, an exception to the Municipality's
policy and practice be granted to provide for a private open space area
within the valley lands on an area of approximately 1.6 hectares, provided
that a hotel containing more than 85 guest rooms is constructed on the
lands zoned {H) C5-15;
5. THAT prior to adopting the proposed amendments, an agreement of
purchase and sale is made between the applicant and the Municipality to
the satisfaction of the Municipality's solicitor providing for the transfer of
the fee simple interest and possession of the lands zoned (H) EP-16 for
nominal consideration if (six) 6 years following the date when the Zoning.
By-law comes into effect a hotel which satisfies Recommendation 4 has
not been constructed on the lands zoned (H) C5-15;
REPORT NO.: PSD-022-09
PAGE 3
6. THAT an appropriate by-law be passed for the Mayor and Clerk to
execute an agreement;
7. THAT copies of Report PSD-077-08 and Addendums and Council's
decision be forwarded to the Regional Municipality of Durham Planning
Department; and
8. THAT all interested parties listed in this report and any delegations be
advised of Council's decision."
1.6 The Council at its meeting which was held on December 8, 2008 ratified the
above recommendation.
2.0 DISCUSSION
2.1 On January 9, 2009, the Municipality received a letter of appeal to the Ontario
Municipal Board by Mary Flynn-Guglietti from McMillian. LLP, on behalf of
Bowmanville Creek Developments Inc., on the Official Plan Amendment. A copy
of the letter of appeal to the Ontario Municipal Board with regard to the
associated Zoning By-law Amendment application was also received by Staff on
January 13, 2009. The appellant requested that the Official Plan Amendment
appeal and the appeal of the Zoning By-law Amendment application be
consolidated to be heard together. The Official Plan Amendment application and
the Zoning By-law Amendment application has been appealed pursuant to
sections of the Planning Act, on the basis Council not making a decision on the
application within the prescribed time period.
2.2 Copies of both letters of appeal are contained in Attachment 2.
2.3 The Ontario Municipal Board has acknowledged receipt of the appeals. At this
time, a date for an OMB pre-hearing conference has not been scheduled.
3.0 CONCLUSION
3.1 Staff recommends that Council receive the report for information.
Attachments:
Attachment 1 -Property Location Map
Attachment 2 -Appeal Letters
Interested parties to be notified of Council and Committee's decision:
Glenn Genge, D.G. Biddle & Associates Limited
Sam Cohen, Torgan Group
Joe Cavallo, Shell Canada Products Limited
Robert Hann, Holloway Holdings Limited
Robert DeGasperis, Metrus Properties Inc.
Catherine Spears, Catherine Spears & Associates Inc.
Edgar Lucas, Bowmanville Business Improvement Area
Beth Kelly, Valiant Property Management
Attachment 1
To Report PSD-022-09
~'~"
mCmill~n
Attachment 2
To Report PSD-022-09
Reply Aaentian of Mary Flynn-Guglietti
Direct Line 416.865.7256
/nternet Address MaryJlynn(idpicmillan.ca
Our File Na 87314
Date January 9, 2009
DELIVERED
Mr. Patrick Hennessy
Secretary, Ontario Municipal Board
655 Bay Street
Suite 1500
Toronto, Ontario
MSG lE5
°~ D
JAN 13 2x09
MUNICIPALITY OF CLARINGTON
ADMINISTRATOR'S OFFICE
Dear Mr. Hennessy:
Re: Appeal to the Ontario Municipal Board pursuant to Subsection 34(11)
of the Planning Act, R.S.O., 1990, c.P 13, as amended regarding an
application by Bowmanville Creek Developments Inc. for an amendment to
the Zoning By-law for the Municipality of Clarington (`Clarington') with
respect to Part of Lot 12 & 13, BF Conc., Bowmanville (the `Property')
(Municipal File: ZBA 2005-0058)
We are the solicitors retained on behalf of Bowmanville Creek Developments Inc.
(`Torgan') in connection with applications for amendments to the Clarington Official plan and
Zoning By-law to accommodate a commercial development on the above referenced Property.
This letter and the enclosed and completed Ontario Municipal Boazd appeal form
constitute our client's appeal of Clarington Council's failure or neglect to approve Torgan's
rezoning application in a timely manner. A concurrent appeal of the related official plan
amendment application (Municipal File No. COPA 2005-0010) accompanies this appeal.
In November 2005, Torgan filed the original official plan and zoning by-law
applications for the Property under municipal files COPA 2005-010 and ZBA 2005-058,
respectively. Copies of these original applications are enclosed.
In March 2008, Torgan formally revised its official plan and zoning by-law
amendment applications to redefine the Highway Commercial and Environmental Protection
official plan designation and to accommodate limited general retail uses, one financial institution
McMillan uP Brookfield Place, 181 bay Stree[, Sui[e k400, Toronto, Ontario, Canada MSJ 2T3
Toronto Montreal B aea < q .ors [ 416.865.7000 '. f 416.865 7048 wwwmcmillan.ca
MBDOCS_4208283.1
cr~illan
January 9, 2009
Page 2
and a private open space amenity area, in addition to Highway Commercial uses, in free-standing
commercial structures on the Property.
On June 4, 2008, Clarington held a statutory public meeting to consider the staff
report addressing the revised applications. As a result of concerns raised at the meeting, the staff
report was referred 'back to staff for further processing: The resulting further report (PSD-077-
08) was tabled at the General Purpose and Administration Committee meeting on September 22,
2008. On December 8, 2008, Clarington Council endorsed the recommerdatians of planning
staff as set out in Addendum #3 to Report PSD-077-08 (the `Recommendations'),
a) Attaching cc;nditions that we submit do not represent good land use planning
principles such as, but not limited to, excluding uses that were previously
permitted under the existing Highway. Commercial zoning, imposing timing
restrictions and unduly restricting parts of the land to certain uses without
planning justification, and
b) Withholding the passage of the necessary by-laws pending the execution of a
conditional agreement of purchase and sale affecting that portion of the Property
zoned (H)EP-16 and pending the resolution of certain financial matters between
our client and the municipality.
As you will appreciate, the report before Council on December 8, 2008
and the associated draft official plan and zoning by-law amendments represented the
culmination of seven years of consideration and numerous meetings and consultations
with municipal staff. Over this lengthy timeframe, these efforts by our client sought
tq achieve greater flexibility on the site through the introduction of a variety of sizes
and types of retail uses on the Property in addition to the already permitted highway-
cornmercial uses. Council's refusal to enact the necessary by-laws to realize the
results of these efforts has no basis in good land use planning principles and results in
an unwarranted and unjust delay to the timely approval of our client's official plan
and zoning by-law amendment applications.
Accordingly and pursuant to Section 34(11) of the Planning Act,
R.S.O., 1990, c. P.13, we hereby appeal rezoning application (ZBA 2005-0058) to
the Ontario Municipal Board for a hearing with a request that this appeal and the
concurrent appeal of the official plan amendment application (COPA 2005-0010) be
consolidated to be heard together before the Board
In support of this rezoning appeal, we enclose:
a) Our fire's cheque in the arnourt of $125 being the requisite OP~4B appeal fee;
b) The duly completed and executed Ontario Municipal Board OPA appeal form;
c) A copy of the revised application to Council for azoning by-law amendment;
MBDOCS_4208283.7
~rncmiil~n
January 9, 2009
Page 3
d) A copy Clarington Council's December 8, 2008 resolution refusing to enact the
implementing by-law;
e) A copy of the November 3, 2008 Planning Services Report (PSD-077-08 and
Addendum to Report PSD-077-08;
f) The sworn affidavit of Isabel Mitchell certifying that copies of all materials
associated with this appeal have been provided to the Clerk for the Municipality of
Clarington and that the requirements of Section 34(10.3) of the Planning Act have
been met.
g) A map of the lands under appeal.
We look forward to receiving your and the OMB's acknowledgement of this
appeal. Meanwhile, please contact the firm's ]and use planner, Isabel Mitchell, with any
questions at 416-865-7937.
Yours truly,
C:~i~~
Mary Flyn~u
Cc: Franklin Wq Chief Administrative Officer, Municipality of Clarington
&ts. Pattie Barry, Clerk, Municipality of Clarine on
-Bowmanville Creek Developments Inc.
Enci.
MBDOCS_4208283.1
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DELIVERED
Ms. Patti Barrie, Municipal Clerk
Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario
L1C 3A6
Deaz Ms. Barrie:
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Re: Appeal to the Ontario Municipal Board pursuant to Subsection I
of the Planning Act, R.S.O., 1990, c.P 13, as amended regarding an
application by Bowmanville Creek Developments Inc. for as amendment to
the Official Plan for the Municipality of Clarington (`Clarington') with
respect to Part of Lot 12 & 13, BF Conc., Bowmanville (the `Property')
(Municipal File: COPA 2005-0010)
We are the solicitors retained on behalf of Bowmanville Creek Developments Inc.
(`Torgan') in connection with applications for amendments to the Clarington Official plan and
Zoning By-law and for site plan approval to accommodate a commercial development on the
above referenced Property.
This letter and the enclosed and completed Ontario Municipal Board appeal form
constitute our client's appeal of Clarington Council's failure or neglect to approve our client's
official plan amendment application in a timely manner. Concurrent appeals with respect to the
related zoning by-law amendment application (Your Municipal File Nos ZBA 2005-0058)
accompanies this appeal.
In November 2005, Torgan filed the original official plan and zoning by-law
applications for the Property under municipal files COPA 2005-010 and ZBA 2005-058,
respectively. Copies of these original applications are enclosed.
In Mazch 2008, Torgan submitted revisions to the original applications to redefine
the Highway Commercial and Environmental Protection official plan designation and to
RepfyAaentian of Mary Ffynn-GYglierh~ ~~_
Direct Une 41G86A7256
/nternetAddresr Mary.Jfyni~djnemilfanea
Our Fife Na 87374
Date January 9,1009
C
Mi Mil!rin :~ Bronkfirl . Plar e, 191 Eay Rrer[, Suite 4400, ioron~u, ~ ,~r,ir,n, Gui,id,3 rn 511T;
Toronto MOnC(t'al ..~rtrrn r. ,. ~„I~~i«.n [416.8657000 ~ f41G 8657049 ~ www.m~n'illdn.~a
m~mili~n
January 9, 2009
Page 2
accommodate limited general retail uses, one financial institution and a private open space
amenity area, in addition to Highway Commercial uses, in free-standing commercial structures
on the Property.
The applications as revised in March 2008 reflect revisions to the plans submitted
with the original applications in order, among other things, to:
a) Accommodate a wider Lange and greater flexibility in relation to the commercial uses
and store sizes on the Property;
b) Redefine the floodplain on the Property in accordance with an approved
environmental impact study, and
c) Allow for an open space amenity azea in the valleyland portion of the Property.
On June 4, 2008, Clarington held a statutory public rnePting ro c„n;ider ±he staff
report addressing the revised applications. As a result of concerns raised at the meeting, :she staff
report was refen•ed back to staff for further processing. The resulting further report (PSD-077-
08) was tabled at the General Purpose and Administration Committee meeting on September 22,
2008. On December 8, 2008, Clarington Council endorsed the recommendations of planning
staff as set out in Addendum #3 to Report PSD-077-08 (the `Recommendations'),
a) Attaching conditions that we submit do not represent good land use planning
principles such as, but not limited to, excluding uses that were previously permitted
under the existing Highway Commercial zoning, imposing timing restrictions and
unduly restricting parts of the land to certain uses without planning justification, and
b) Withholding the passage of the necessary by-laws pending the execution of a
conditional agreement of purchase and sale affecting that portion of the Property
zoned (H)EP-16 and pending the resolution of certain financial matters between our
client and the municipality.
As you will appreciate, the report before Council on December 8, 2008
and the associated draft official plan and zoning by-law amendments represented the
culmination of seven years of consideration and numerous meetings and consul[ations
with municipal staff. Over this lengthy timeframe, these efforts by our client sought
to achieve greater flexibility on the site through the introduction of a variety of sizes
and tyres of retail uses cri the Propcity in addition to the already permitted highway-
commercial uses. Council's refusal to enact the necessary by-laws to realize the
results of these efforts has no basis in good land use planning principles and results in
an unwarranted and unjust delay to the timely approval of our client's official plan
and zoning by-law amendment applications.
Accordingly and pursuant to Section 22(7) of the Planning Act,
R.S.O., 1990, c. P.13, we hereby appeal official plan amendment application (COPA
2005-0010) to the Ontario Municipal Boazd for a hearing with a request that this
Msoocs_azooaro.~
mcmill~n
January 9, 2009
Page 3
appeal and the concurrent appeal of the zoning by-law amendment application (ZBA
2005-0058) be consolidated to be heazd together before the Board.
In support of this official plan amendment appeal, we enclose:
• Our firm's cheque in the amount of $125, the requisite OMB appeal fee
• The duly completed/executed Ontario Municipal Board OPA appeal form.
Yo~:rs tnly,
Mary i=1,.~LLn v LI L
cc: Franklin Wu, Chief Administrative Officer, Municipality of Clarington
Bowmanville Creek Developments Inc.
Patrick Hennessy, Ontario Municipal Board
Encl.
MBDOCS 4200870.1