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HomeMy WebLinkAboutPD-38-98 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DN: P03858.GPA REPORT Meeting: General Purpose and Administration Committee File # ~ ~ ~ ~' `~ I Date: Monday, March 22, 1998 Res. # ~ ~ I~ -~ ~' ~ _~ `~ Report #: PD-38-98 File #: DEV 98-001 Subject: By-law # RE20NING APPLICATION -APPLICANT: MUNICIPALITY OF CLARINGTON PART LOT 29, CONCESSION 3, FORMER TOWNSHIP OF DARLINGTON 3872 COURTICE ROAD FILE: DEV 98-001 Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PD-38-98 be received; 2. (This recommendation is to be inserted by Committee); and 3. THAT all interested parties listed in this report and any delegation be advised of Council's decision. 1. APPLICATION DETAILS 1.1 Applicant: Municipality of Clarington 1.2 Application: From "Agricultural (A) Zone" to an exception zone permitting the continuation of an existing autobody repair shop including related mechanical repairs for a period of up to three (3) years from the date of passage of the by-law amendment. 1.3 Site Area: 0.53 hectares (1.31 acres) 651 REPORT NO. PD-38-98 PAGE 2 2. LOCATION 2.1 The subject lands are located at the southwest corner of Courtice Road and Pebblestone Road north of Courtice. The land holdings owned by Mr. Domitrovic total 0.53 hectares (1.31 ac.). The property in legal terms is known as Part Lot 29, Concession 3, in the former Township of Darlington. 3. BACKGROUND 3.1 On January 12, 1998, the Council of the Municipality of Clarington directed staff to initiate the process on behalf of Mr. Domitrovic to amend Comprehensive Zoning By-law 84-63 of the former Town of Newcastle. The purpose of the amendment is to change the current zoning from "Agricultural (A) Zone" to permit the continuation of an existing autobody repair shop including related mechanical repairs for a period of up to three (3) years from the date of passage of the by-law amendment. This application is being considered as a temporary use by-law under Sections 34 and 39 of the Planning Act. 3.2 A Public Meeting was held on February 16, 1998 for the application. Bernice Petryshyn and Frances Scanga spoke against the application on the following basis: • the autobody shop is operating within aresidential/agricultural area; • there is a possibility of contamination of surrounding septic systems from the proposal; • buildings encroaching from the Domitrovic lands onto the Scanga lands to the west should be removed prior to any approvals being considered; • a fence must be erected between the Scanga and Domitrovic properties; • any wastes on the property west of the Domitrovic lands must be removed; and, • anew survey should be prepared for the Domitrovic lands. 652 4 REPORT NO. PD-38-98 PAGE 3 3.3 A letter has been received from Florence Carnochan, an adjacent resident on Pebblestone Road, objecting to the development on the following basis: • the required commercial access on Pebblestone Road will be across from her home; and, • the proposal will alter the character of the area. 3.4 Mr. Domitrovic spoke in support of the application and indicated the following: • if the application were approved, he would remove the buildings which encroach onto the property to the west owned by Mrs. Scanga; • he is not prepared to erect a fence along his western property boundary nor is he prepared to participate in a water quality study; and • the property to the west is a waste disposal site. 4. EXISTING AND SURROUNDING USES 4.1 Existing Uses: Residential dwelling on south half with existing autobody repair shop on north half of property. 4.2 Surrounding Uses: East: former gravel pit North: rural residential and former gravel pit West: vacant lands South: rural residential, place of worship, convent, day care and elementary school. 5. OFFICIAL PLAN POLICIES 5.1 Within the Durham Region Official Plan, the subject lands are designated "Major Open Space". The predominant use of such lands are for conservation, recreation, reforestation, agriculture and farm-related uses. - 653 REPORT NO. PD-38-98 PAGE 4 5.2 The Municipality of Clarington Official Plan designates the subject lands "Green Space". Predominant uses for these lands include conservation, active and passive recreational uses, agriculture, farm-related uses, home-based occupations, and limited home industry uses. The existing uses do not conform to the land use designations of both the Durham Region Official Plan and the Clarington Official Plan. 5.3 Section 23.4.4 of the Clarington Official Plan enables Council to approve a temporary use by-law to permit uses on a temporary basis provided that the following criteria are fulfilled: • the proposed use is temporary in nature; • the proposed use is compatible with adjacent uses and has no adverse impacts; • there are no adverse impacts on the transportation system in the area; • the use can be removed and the site can be restored to its original condition; • the site can be adequately serviced; and • the use does not impact the long-term implementation of this Plan. 6. ZONING BY-LAW CONFORMITY 6.1 The property is currently zoned "Agricultural (A)". In order for a temporary use by- lawto be considered, this rezoning process has been initiated by the Municipality. 7. AGENCY COMMENTS 7.1 The application was circulated to solicit comments from other relevant agencies. The Clarington Fire Department has no objections to the proposal. New guidelines require the owner to provide an 18,000 gallon on-site water supply that - b54 REPORT NO. PD-38-98 PAGE 5 conforms with the Ontario Fire Marshall's Guidelines. The owner should retain an engineer to confirm these calculations. 7.2 The Clarington Public Works Department -Engineering Division has no objection to the application provided that the following conditions are fulfilled: • A 5.18 m road widening along Pebblestone Road must be dedicated to the Municipality free and clear of all encumbrances and in a form satisfactory to the Municipality's solicitor; • No changes or alterations can be made to the grading and drainage patterns on the site. These must be maintained in their present condition; • The applicant will be required to satisfy all requirements of the Regional Municipality of Durham regarding existing entrances onto Regional Road 34 (Courtice Road); and, • The applicant is responsible for any costs necessary to facilitate the construction of a commercial entrance from the subject property to Pebblestone Road. 7.3 The Clarington Public Works Department -Parks Division has indicated that a 2% cash contribution in lieu of the normal parkland dedication is required in conjunction with site plan approval for the proposal. 7.4 The Clarington Public Works Department -Building Division has no objections to the proposal. The following issues must be addressed prior to issuance of a building permit: • The building must be evaluated and upgraded for early warning and evacuation systems. An architect and/or professional engineer is required. • An appropriate fire extinguishing system must be installed throughout the building in every room or space. • The west and south exposing building faces must be constructed of non- combustible construction (steel or concrete), clad with non-combustible cladding, and have a two hour fire resistance rating. 655 REPORT NO. PD-38-98 PAGE 6 • All walls located on the property line must be constructed as a fire wall (concrete block or poured concrete only) with a four hour fire resistance rating and a 0.9 metre parapet above the highest roof. • Afire access route is required to the principal entrance. 7.5 The Durham Region Planning Department has indicated that the application to amend the Durham Region Official Plan was denied by Durham Regional Council on April 23, 1997 and that Mr. Domitrovic had subsequently appealed the decision to the Ontario Municipal Board. Temporary use by-laws provide a mechanism to zone lands where it is certain that the use is appropriate in the short term. Non-conforming uses are encouraged to relocate in areas where they are permitted or redevelop in conformity with the Official Plan. The Region questions the use of a temporary use by-law for the proposed use on the following basis: • the proposed use is still subject to an OMB appeal; • the proposed use does not conform with the Durham Region Official Plan; • the impact of the use would still remain, even if for a shorter period of time; • the various land use and site plan requirements could cause the proposed use to persist; • no information has been provided in support of the "temporary" aspect of the proposal; and • no information has been provided regarding efforts undertaken to find an appropriate new location for the operation. On this basis, the Region questions how this proposed temporary use by-law would not be in contravention of the Durham Region Official Plan. - b56 REPORT N0. PD-38-98 PAGE 7 7.6 The Durham Region Public Works Department has no objections to the proposal provided that the following conditions are fulfilled: • A 5.18 m road widening is required along the Pebblestone Road frontage; and • The existing commercial access from Courtice Road must be closed. A commercial entry will only be permitted from Pebblestone Road. 7.7 The Durham Regional Health Unit has no objections to the proposal. 7.8 The Central Lake Ontario Conservation Authority has no objections to the application provided that proper on-site controls are required to prevent spills or leaks of materials used for the operation. Given the limited volumes used, this should be readily achievable within the storage area(s) of the existing building. The Ministry of Environment should be contacted to determine the proper containment methods required. 7.9 The Ministry of Environment has provided the following comments on the application. 'Typically auto body operation includes the sanding and spray painting of vehicles. The discharge of contaminants, such as the particulates generated by these operations into the natural environment, that cause or are likely to cause an adverse effect, is a contravention of Section 14 of the Environmental Protection Act. These activities should be undertaken in a controlled area to prevent the discharge of particulate contaminants from the operation. Mr. Domitrovic would be required to obtain a Certificate of Approval from this Ministry for any exhausts discharged into the natural environment from the operation. Mr. Domitrovic would also be required, under Ontario Regulation 347, R.S.O. 1990, to manage any liquid industrial and hazardous wastes (ie. spent solvents and paint sludges) generated by the operation through a written agreement with a Ministry approved waste hauler. - 657 REPORT NO. PD-38-98 PAGE 8 I understand that the Municipality is considering granting Mr. Domitrovic temporary rezoning of the property to permit the industrial use. Should the future use of this property be for a residential use, Mr. Domitrovic should be required to undertake a site assessment, as indicated in the Ministry's site restoration guideline, to ensure that any impact that may have been caused by the industrial use has been addressed." 8. STAFF COMMENTS 8.1 At the outset, staff wish to reiterate that the processing of this temporary use by- law was at the direction of Council. Staff have at no time ever recommended such an approach nor would staff support a temporary use by-law. In any event, staff have followed Council's direction and processed the application. The process is now completed and Committee is now in a position to address the matter. To assist Committee's deliberation, several options are listed below. Option A: Withdraw the Application Committee could withdraw its application for the temporary use by-law. If this option is chosen, the following resolution could be inserted in recommendation #2 of this Report: 'THAT Council withdraw its application for a temporary use by-law for Mr. Domitrovic's property located at 3872 Courtice Road;" Comments: • This decision is consistent with the previous Council's decision which recommended denial of the Durham Region Official Plan amendment application. Option B: Approve Rezoning for a Temporary Use By-law Without Conditions Should Committee decide that the conditions included in the report are too onerous for a temporary use, a temporary use by-law could be approved without conditions. Staff would then prepare a by-law for placement on the 658 REPORT NO. PD-38-98 PAGE 9 next Council agenda. The following resolution could be inserted in recommendation. #2 of this Report: "THAT staff be directed to prepare a temporary use by-law for Mr. Domitrovic's property located at 3872 Courtice Road to permit the continuation of an existing autobody repair shop including related mechanical repairs for a period of up to three (3) years from the date of passage of the by-law amendment;" Comments: • Approval of a temporary use by-law may be construed as inconsistent with the previous Council's decision with respect to the Durham Region Official Plan amendment application. The municipal solicitor and planner are currently preparing for the Ontario Municipal Board hearing based on the previous Council direction. Approval of a temporary use by-law may jeopardize the municipal position before the Ontario Municipal Board. • If the temporary use by-law is appealed, Council must decide whether it will defend it's position at the Ontario Municipal Board. Council is aware that the municipal planner will not be able to support the temporary use by-law and therefore will not represent Council's position at the Ontario Municipal Board. • Should Council choose to defend the temporary use by-taw, apre- budget approval of between $10,000 - $15,000 would be required to cover legal and professional planning expenses. Should Council choose not defend the by-law, staff would not participate at the Ontario Municipal Board hearing to contradict Council's position except under subpoena. • A temporary use by-law is only in force for a period of up to three years. Upon expiry, a future Council will have to deal with the issue again. Essentially, the issue could resurface every three years. Option C: Approve Rezoning for a Temporary Use By-law Subject to Conditions In this option, Committee could impose the conditions as required by all circulated government agencies. Committee should also decide whether 659 REPORT NO. PD-38-98 PAGE 10 the conditions requested by Frances Scanga (Section 3.2) should be included. Prior to the passing of the by-law amendment, all conditions would have to be fulfilled by Mr. Domitrovic through a development agreement at the site plan approval stage in order to ensure that the conditions are or will be met. Should this option be preferred, the following resolution could be inserted in recommendation #2 of this Report: "THAT Council approve the rezoning for Mr. Domitrovic's property located at 3872 Courtice Road to permit the continuation of an existing autobody repair shop including related mechanical repairs for a period of up to three (3) years from the date of passage of the by-law amendment;" "THAT the temporary use by-law not be passed until Mr. Domitrovic satisfies all conditions as recommended by the agencies contained in Report PD-38-98 through site plan approval;" Comments: • In addition to those ramifications identified for Option Band assuming that Mr. Domitrovic will satisfy all conditions prior to by- law approval, an appeal to the Ontario Municipal Board and eventual quashing of the by-law are still possible. This may not offer any comfort to Mr. Domitrovic as considerable expense is involved in meeting the conditions of approval. • In addition, Mr. Domitrovic's financial commitment to fulfil the agency requirements does not guarantee the use of the land for a period in excess of three years. Option D: Approve a Permanent By-law During the recent General Purpose and Administration and Council meetings, the discussion has suggested that Council should consider 660 REPORT NO. PD-38-98 PAGE 11 granting Mr. Domitrovic a permanent zoning change. In this regard, staff wish to advise that Council certainly has the power to do so under Section 34 of the Planning Act and could direct staff to do so. However, Council should be aware of the following facts: a) Section 34 of the Planning Act requires a due process to be followed prior to passing azoning by-law amendment. This involves a new application, agency circulation, notification, public meeting, etc. b) Council does not have the ability to approve a zoning by-law which does not conform to the Official Plan. Section 24(1) of the Planning Act states: "Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for anv purpose that does not conform therewith;" c) Under Section 24(2) of the Planning Act, if Council has adopted an official plan amendment, a zoning by-law may be passed under Section 34 which would only come into effect once the amendment comes into effect. In this instance, the official plan amendment was denied and has been referred to the Ontario Municipal Board. If Council were to pass a zoning by-law it would only come into effect if the Ontario Municipal Board ruled in favour of Mr Domitrovic. 661 REPORT NO. PD-38-98 PAGE 12 Respectfully submitted, Franklin Wu, M.C.I.P., R.P.P., Director of Planning and Development RH*FW*cc Attachment #1 - Attachment #2 - March 13, 1998 Key Map Proposed Site Plan Reviewed by, W. H. Stockwell Chief Administrative Officer Interested parties to be notified of Council and Committee's decision: Joe Domitrovic 3872 Courtice Road North Courtice, Ont. L1 E 2L5 Irving Gleiberman Suite 208 50 McIntosh Drive Markham, Ont. L3R 9T3 Marylynn Riseborough 4193 Tooley Road Courtice, Ont. Li E 1 Z4 Bernice and Walter Petryshyn 1671 Taunton Road East Hampton, Ont. LOB 1 JO Francis Scanga Nick Groe 42 Waverly Street North Oshawa, Ont. L1 J 8H2 Glen Elliott Elliott & Hughes 106 Stevenson Road South Oshawa, Ont. LiJ 5M1 Florence Carnochan 1742 Pebblestone Road Courtice, Ont. Li C 3K4 Kerry Meydam 3828 Trulls Road Courtice, Ont. L1 E 2L3 Linda Gasser P.O. Box 399 Orono, Ont. LOB 1 MO Ivan & Tebla Perun R. R. # 1 Hampton, Ont. 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