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HomeMy WebLinkAboutPSD-119-10Clari~~ton REPQRT Leading the way PLANNING SERVICES Meeting: GENERAL PURP05E AND ADMINISTRATION COMMITTEE Date: December 13, 2010 Resolution #: Gr~H-s//-/cBy-law #: NIA Report #: PSD-119-10 File #: ZBA 2009-0009 Subject: ONTARIO MUNICIPAL BOARD DECISION - APPEAL OF ZBA 2009-0009 APPLICANT: GREEN MARTIN HOLDINGS LTD. RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: THAT Report PSD-119-10 be received for information. Submitted by: Reviewed by~ - Franklin Wu Chief Administrative Officer MH/CP/df 2 December 2010 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T (905)623-3379 F (905)623-0830 Director of Planning Services REPORT NO.: PSD-119-10 PAGE 2 1.0 An Ontario Municipal Board (OMB) hearing was held on October 28, 2010, for an appeal made by the applicant of a rezoning application (ZBA 2009-0009). The application was for the creation of two (2) single detached lots on a vacant parcel of land, within an existing built-up area. The subject site is a registered block within a draft approved plan of subdivision. The block was originally draft approved as a "Future Development Block" (See Attachment 1). 2.0 The application was considered by Council on March 1, 2010, which followed a statutory public meeting in September 2009, and a public open house held for the concerned residents in October 2009. After a number of revisions made to the proposal in an attempt to ease the residents' concerns and to satisfy the various commenting agencies, staff prepared a report recommending approval of the application. 3.0 After hearing the various complaints and concerns of the nearby residents, Council made the decision to deny the rezoning application for various reasons including that the massing and siting of the dwellings would not be in keeping with the character of the neighbourhood (See Attachment 2). 4.0 Green Martin Holdings Ltd. appealed Council's decision on April 6, 2010 to the Ontario Municipal Board as they felt the application was in keeping with all relevant land use policies and the subdivision agreement. 5.0 Planning Services staff member Meaghan Harrington, Planner in the Development Review Branch and author of the recommendation report, was summoned to attend the OMB hearing and to give evidence. Mr. Bryce Jordan provided planning evidence on behalf of Green Martin Holdings Ltd. and Andrew Allison, Municipal Solicitor acted on behalf of the Municipality of Clarington, to defend Council's decision. 6.0 At the beginning of the OMB hearing, Mr. Bromley, a concerned resident, was granted participant status and provided the Board with his concerns and comments on the proposed rezoning. 7.0 Andrew Allison submitted to the Board that consideration should be given to Council's decision, specifically the position that the subject parcel should develop with the abutting lands to the west as originally contemplated and development of the parcel at this time would be premature. 8.0 After hearing evidence from both Planners, and testimony from Andrew Allison, the Board withheld their decision until a later date. 9.0 On November 25, 2010, OMB member M. A. Sills delivered the Board's decision to allow the appeal and to direct the Municipality to amend the Zoning By-law in accordance with the Board's decision. Staff Contact: Meaghan Harrington REPORT NO.: PSD-119-10 aer_G s Attachments: Attachment 1 - Property Location Map Attachment 2 - Council Resolution, March 1, 2010 Attachment 3 - Ontario Municipal Board Decision To Report PSD-119-10 d L ~ ~a II QtlOtl N33M0 ++ C N _ m ~ '53110 NOH1tlN09 ~ ~ C d C R ~ W ~ v ~ ~~ k ~ ~ C C C Q p m ' i o 133LLS OOOMLSfItl I °4r rv ~ o ~ y ~ N i !0 O °f J 3P ~ Yr J2 m 0~~ YS Q m m a i ~e = °o ,~~ ~~ O N p~ = _ o f ° 'i ~ ~ 0 N 3 d 's3a~ 3NV1 ,atlHS Q _`~ ~/ ` w Q ~ ~`~~ ~~e <~ ~``ss ~JO ~ G J ~ X05 °+04 ~r'~' V O ~ ~ ~y ~o $ V \ Fc3'+° . \a'a~ I^° / ti W~ py }}2~CC ~ ~ ~~~~~ ~~ 9 Q 4. 1 \ ~ a~gmy°y~- og ~g ~ ~ h 3 ~ \ ~ ~ O~`C ~ bo'p ~p\ ~~gP \ `~` ~~ ~42~ M Q\ 0 - _ 118.175 ATTACHMENT # a ,~ REPORT # -// - /o Council Meeting Minutes - 24 - March 22, 2010 THAT a grant in the amount of $2,500 be approved for the Tyrone Hall Board. "CARRIED" Item 42 Resolution #C-128-10 Moved by Councillor Novak, seconded by Councillor Hooper WHEREAS the Clarington Council has duly considered the applications submitted by Green Martin Holdings Ltd to amend the Comprehensive Zoning By-law 84-63; WHEREAS the General Purpose and Administration Committee made a recommendation to Council to "deny" the application; WHEREAS Council has concerns with the proposal as the physical massing of the buildings is out of character with the surrounding neighbourhood; WHEREAS Council has concerns that on-street parking at this location could be a safety concern; WHEREAS, despite the efforts of Green Martin Holding Ltd to address concerns of the immediate adjacent residents, Council has concerns with respect to the information that was provided to residents on the future use of these lands; WHEREAS Council has concerns that the developer or their agent made representations to purchasers that may not have provided an accurate portrayal of the future use of the lands; WHEREAS after duly weighing the materials provided by Green Martin Holding Ltd., the concerns of the neighbouring residents regarding on-street parking and the building massing, Clarington Council has determined that the approval of fhe Green Martin Holding Ltd application is not in the public interest; THEREFORE BE IT RESOLVED THAT Report PSD-027-10 be received; THAT the application to amend Zoning Bylaw 84-63 submitted by Green Martin Holding Ltd (File ZBA 2009-0009) be refused; and THAT the Region of Durham, the applicant and all interested parties listed in Report PSD-027-10 and any delegation be advised of Council's decision. "CARRIED" ISSUE DATE: Nov. 25, 2010 Attachment 3 To Report PSD-119-10 N0~ , s Luii7 MUNICIPwU~ ~' "~ ~:'-trtINDTDN PL1D0417 Ontario Municipal Board Commission des affaires municipales de ('Ontario Green Martin Holdings Ltd. has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to Zoning By-law 84-63, as amended, of the former Town of Newcastle, to rezone the subject lands located at Boswell Drive, South of Highway Number 2, described as Block 98, Registered Plan 40M-1904, Part Lot 17, in the Town of Clarington from "Agriculture (A) Zone" to "Holding -Urban Residential ((H) R2-73) Zone" to permit the development of two single detached lots. Municipal File No: ZBA 2009-0009 OMB File No. PL100417 .APPEARANCES: Parties Counsel Green Martin Holdings Ltd. A. Alyea Municipality of Clarington A. Allison Participant Donald Bromley DECISION DELIVERED BY M. A. SILLS AND ORDER OF THE BOARD The matter before the Board is an appeal by Green Martin Holdings Ltd. (Applicant/Appellant) of -the decision by Town Council which refused an application to rezone the property known as Boswell Drive, Block 98, in the Municipality of Clarington. Background The subject .lands are awedge-shaped parcel, approximately 0.138 hectares in size. This property is a vacant remnant parcel which was registered as a future development block (Block 98) in Registered Plan 40M-1904 of draft plan 18T-88047, and is the only remaining undeveloped parcel within this plan of subdivision. -2- PL100417 Block 98 was set aside to be developed at a future date in conjunction with adjacent lands to the west. At the time, it was thought that this block would be more efficiently developed in the future by combining it with the abutting agricultural lands to the west, which are located outside Bowmanville's urban boundary. However, the Greenbelt Plan now shares the same boundary, arid the Growth Plan conformity exercise recently undertaken by the Region of Durham suggests that the urban boundary will not be expanding west until at least some time after the year 2031. The subject lands are designated as "Living Area" in the Durham Region Official Plan and "Urban Residential" in the Claringtan Official Plan. Surrounding uses include residential to the north, south and east. To the west, this parcel backs onto the Watson's farm lands which continue to be an active agricultural operation. The eastern property line of this parcel abuts the rear yards of existing residential lots fronting onto Shady Lane Crescent. In May 2009, the Applicant submitted an application for an amendment to Zoning By-law 84-63, of the farmer Town of Newcastle. The purpose and effect of the Zoning By-law Amendment (ZBA) is to change the zone category from "Agricultural (A)" to "Holding -Urban Residential Exception ((H) R2-73)" to permit the development of Block 98 into two single detached lots. The Applicant proposes to submit a land division application to the Region following the rezoning of the property. The proposed -lot orientation and building siting will result in the side yard of one of the new homes abutting the rear yards of Shady Lane Crescent properties. Concerns of the Participant At the commencement of the hearing, Mr. Donald Bromley requested and was granted Participant status. Mr. Bromley purchased a property on Shady Lane Crescent in May 1997 and moved into his home in March 1998. Mr. Bromley was adamant that at the time he was considering. purchasing his property, he was told that the subject lot would remain a parkette and "would never be built on". He told the Board that over the years he has. maintained this lot by cutting the grass,'etc. Mr. Bromley asserted that "we do not want two big buildings put on this pie-shaped lot", and they do not want this "atrocity' in their - 3 - PL100417 backyard. He requested that the Board not allow "anything to be built on this property', but rather "leave it the way it is". Planning Evidence Ms Meaghan Harrington, a planner under contract with the Municipality of Clarington, appeared under summons by the Applicant. Ms Harrington is a full Member of the Canadian Institute of Planners and the Ontario Professional Planners Institute. It was Ms. Harrington's professional opinion that the proposal meets the intent of the Provincial Policy Statement (PPS), it is in keeping with relevant provisions of the Growth Plan (GP), and is in conformity with the Clarington and the Durham Region Official Plans. She submitted the applicable PPS policies include the need to maintain and direct land use to achieve efficient development and land use patterns, and to carefully manage appropriate development to meet current and future needs. The proposal represents .residential intensification of vacant and underutilized property, which is consistent with the intent of these policies. Ms Harrington submitted that the GP encourages new growth and intensification in built-up areas. This Plan recognizes the importance of optimising the use of existing land supply and making better and more efficient use of existing infrastructure. She opined .that the proposed development of the subject lands, which .are already designated for urban residential development, is in keeping with the intent of the GP. The subject property is designated "Living Area" in the Durham Regional Official Plan. Living Areas are to be used predominantly for housing purposes. Ms Harrington submitted that the intent of the relevant policies is to achieve a compact urban form. She opined that the proposed use is in conformity with these OP policies. Ms Harrington told the Board that the lands located to the west of the subject property are outside the urban boundary of Bowmanville. These lands are designated "Major Open Space Areas",which does not permit urban residential development. The Growing Durham Study was. developed in response to the GP conformity planning exercise, and was intended to address the Region's urban growth needs to the year -4- PL100417 2031. ROPA 128, which was recently adopted by Regional Council (but not yet approved by the Province), adopts the policy direction of the Growing Durham Study. This study suggests that the urban boundary of Bowmanville will not be expanding to the west up until at least the year 2031. Consequently, the lands currently located outside the urban area will remain designated as "Major Open Space Areas". The subject lands are designated "Urban Residential" in the Clarington OP. Lands included in this designation are to be used predominately for housing purposes. The growth management principles of the OP recognize the importance of pursuing sustainable development by directing future growth to existing urban areas. The proposed development supports these guiding principles by making efficient use of existing public infrastructure and services. Ms Harrington submitted that the requisite agency circulation resulted in a few initial objections, but the outstanding issues have all been resolved. As a result of objections from local residents, a public Open House was held on October 27, 2009. Subsequently,. the Applicant made modifications to the proposal in an attempt to address some of these concerns. However, the greatest concern of neighbouring property owners was that at the time of purchasing their homes, they were told that the subject property was to be developed as parkland. Some residents suggested that they paid a premium for purchasing property backing onto future parkland. Ms Harrington testified that municipal staff do not have any sales material on record for this Plan of Subdivision, and therefore, are unable to confirm how the properties were being marketed by the sales representatives. According to municipal records, the subject lands were draft approved and-registered as a future development block. The same draft plan identifies a separate 2.36 hectare parcel of land located further south on Boswell Drive as a park block. In addition, the Parks. Division has confirmed that there is no intention to acquire the subject lands for park development. Mr. Bryce Jordan is a registered prot;essional planner and a Member of the Canadian Institute of Planners. Mr. Jordan was retained by the Applicant for the purpose of providing a planning analysis of the proposed development of the subject lands. - 5 - PL100417 It was Mr. Jordan's professional opinion that the proposal is consistent with the policies of the PP5 and conforms to the GP. The proposed development of the subject property conforms to the Clarington and Regional OP, and represents good planning. Mr. Jordan submitted that the proposal is consistent with PPS policies related to promoting healthy and safe communities by efficiently managing development and land use patterns. This is achieved by directing new development in a manner which encourages the efficient use of infrastructure and public service facilities. The development of two new homes represents an infill development within abuilt-up neighbourhood. The subject land parcel is located withiri a developed residential subdivision with existing available servicing and infrastructure. Likewise, the proposal fosters and enhances GP policies with respect to making better use of land and existing infrastructure through intensification of existing built-up areas. Mr. Jordan opined that policies of both the Clarington and Regional OP's support the proposed development.. These policies encourage the use of land for housing intensification wherever they are currently designated, and within areas where soft and hard services are available. The proposed development will result in the addition of two new residential properties within an established neighbourhood with available servicing and infrastructure. Mr. Jordan submitted that as a result of impact concerns expressed by local residents at the Public Open House, the Applicant has modified the original development proposal with respect to the siting of the proposed dwellings and setbacks. He told the Board that the revised orientation of the proposed dwellings will serve to minimize impacts related to view and privacy. It was his opinion that these modifications constitute an appropriate compromise, while at the same time, do not negatively alter the planning merits of the proposal. Mr. Jordan referred the Board to the Minutes of the meeting of March 22, 2010 (Exhibit 1 -Tab 12), which sets out the concerns of Council which led to the conclusion that the application was not in the public interest and should- therefore be refused. These concerns include: • the physical massing of the proposed buildings are out of character with the surrounding neighbourhood; - 6 - PL100417 • on-street parking at this location could be a safety concern; • concerns with respect to the information that was originally provided to residents with respect to the future. use of the subject lands; and • concerns that the developer or their agent made representations to purchasers that may not have been an accurate portrayal of the future use. of the lands In response to these concerns, Mr. Jordan submitted that the massing of the proposed homes is established. by the Zoning By-law. He contended that these are to be two-storey residential dwellings, the same as other homes in this neighbourhood. The side yard of the home abutting properties fronting onto Shady Lane Crescent will be enhanced, and the built form will be compatible with other homes in this subdivision. With respect to parking, Mr. Jordan argued that while the Municipality permits on-street parking, it also has the authority to prohibit such. He submitted that if this area presents a safety concern, parking should have already been restricted at this location. However, on-street parking in front of lots is not guaranteed and the Municipality still has. the option to restrict parking at this location. Regarding concerns related to the developer's portrayal of the future use of Block 98, Mr. Jordan submitted that there is no documented evidence to support that this. parcel was to be reserved for parkland: The subdivision approval .documents clearly indicate that these lots were intended for future development and the municipal Parks Division has commented that there is sufficient parkland in this area. Submissions of Counsel Ms Alyea argued that the only matter before the Board is a simple application for rezoning of the property. The subject Zoning By-law Amendment will permit the development of two residential lots on a vacant parcel of land within an otherwise fully developed subdivision. The development proposal optimizes land use, and makes economical use of existing infrastructure and services. She submitted that the only planning evidence before the Board confirms that the proposal is consistent with Provincial land use policies and conforms to local land use planning documents. - 7 - PL100417 Mr. Allison submitted that he is unable to present any evidence which could contradict the expert planning opinions before the Board. However, he argued that the site plan identified that the subject parcel was to be developed in conjunction with the lands to the west, sometime after the year 2021. He asserted that while the lands to the west have not been identified for development in ROPA 128, "the door has not been closed to urban development of these lands". It is the Municipality's position that as Block 98 was intended to be developed in conjunction with the lands to the west, or at least, not until after the year 2021, the rezoning should not be permitted at this time. Mr. Allison submitted that Town Council is requesting that the stipulation and time frame for development of these lands, as determined at the time of site plan .approval, be enforced. Accordingly, Mr. Allison requested that the Board dismiss the appeal. Analysis and Disposition The Board heard from two planning professionals who gave expert evidence which supported approval of the Zoning By-law Amendment. Both Ms Harrington, the Town's planner, and Mr. Jordan testified that the proposal is consistent with Provincial planning policies, it conforms to the Town of Clarington and the Durham Region Official Plans, and it represents good planning. The Region confirmed that the proposal conforms to the Official Plan, and any concerns expressed by circulated agencies have now been resolved. Mr. Allison submitted that while he was unable to dispute or challenge the expert planning evidence, consideration should be given to Council's position that the time frame established for development of these lands at the time the plan of subdivision was approved, should prevail The Board has given regard to Mr. Allison's submission and the decision of Town Council; however, the professional opinion evidence of Ms Harrington and Mr. Jordan respecting the planning merits of the application cannot be overlooked. Their evidence was persuasive and unchallenged. I am satisfied that the proposed development is an appropriate development of the property and is consistent with the planning principles set out in the applicable Provincial and municipal planning documents. These planning policies contemplated and encourage this very form of development in established _g_ PL100417 residential areas. Accordingly, the Applicant's proposal for an infill residential development in a fully serviced area represents good land use planning. Town Council's concerns related to on-street parking and building massing can be dealt with through parking prohibition by-laws, and site plan controls, and are not matters that form part of the rezoning application before the Board. Mr. Bromley testified that at the time he purchased his property, he was told by sales representatives that this parcel would- always remain a park area. While, I have no reason to doubt his assertions in this regard, the documentary evidence clearly sets out that this property was intended to be developed at some point in the future. And while I can appreciate Mr. Bromley's sentiments with respect to this matter, it is not within the purview of the Board to adjudicate the issue of alleged misrepresentations by either the developer or his real estate sales personnel. THE BOARD ORDERS that the appeal is allowed and the municipality is directed to amend By-law 84-63 in accordance with the Board's decision. The Board so Qrders. "M. A. Sills" M. A. SILLS MEMBER