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HomeMy WebLinkAbout2011-080 By- law 2011 - 080 Was repealed by the OMB on August 3 , 2012 ISSUE DATE: 0 Z, AP% August 3, 2012 146 N PL1 10827 Ontario Ontario Municipal Board Commission des affaires municipales de ('Ontario IN THE MATTER OF subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Appellant: Wesley & Margaret Knapp Subject: By-law No. 2011-080 Municipality: Municipality of Clarington RFVIFV,.W,Y OMB Case No: 10827 ow c1m)v. PL1 J NCIL U FILE OMB File No: PL1 10827 i J MU DIPPI,10N INIOHMAI ION COPY ro . 0 NII)NOR D U GAO APPEARANCES: c, u EP mcmw i r3 u3 S,iWIIAS SU'VILES Parties Counsel, h-11r,LAN 0,�J(-, ;GiTon C TREASURY Wesley and Margaret Knapp R. Worboy 11 OrI­I[I1 _______' Municipality of Clarington A. Allison L�LJNICr1A LG�RWS ALE DECISION DELIVERED BY C. CONTI AND ORDER OF THE BOARD Introduction This is an appeal by Wesley and Margaret Knapp (Appellants), regarding the approval by the Municipality of Clarington of By-law No. 2011-080, which permitted the temporary use, for a period of two months, of a property at 5101 Main Street, Orono (subject property) for a small engine repair business, The Appellants have filed the appeal seeking the approval of a temporary use by-law to allow the use to continue for a period of three years. The Appellants reside at the subject property and have operated the small engine repair business from the garage on the property since 1979. They wish to keep operating the business for a number of years into the future. The Municipality opposes the continued operation of the small engine repair business at this location. - 2 - PL110827 The property is located at the southeast corner of Main Street and Cobbledick Road, within a residential area of the village of Orono. Main Street is a Regional Road, whereas Cobbledick Road is a local road which connects Main Street to Highway 35/115, which is a provincial divided highway. The subject property is approximately 0.68 hectares in size and it contains an older single family dwelling with an attached garage. Issue I Temporary use by-laws are passed under section 39 of the Planning Act, The Board must determine if By-law No. 2011-080 (Exhibit 1, Tab 18) complies with the requirements of section 39 and the relevant provisions of the applicable planning documents. Furthermore, is By-law No. 2011-080 appropriate and if so, should the temporary use of the property be extended beyond the time limits imposed in the by- law? Evidence The Board heard evidence on behalf of the Appellants from Heather Sadler, Principal and Senior Planner with Ecovue Consulting Services Inc. Ms. Sadler is a Registered Professional Planner with over twenty-five years of experience. She was qualified by the Board as an expert in land use planning. D. Bramwell, K. Lenehan and V. Holbrook who all live in the vicinity of the subject property testified on behalf of the Appellants. In addition, both Mr. and Mrs. Knapp testified on their own behalf. The Board heard evidence on behalf of the Municipality of Clarington from Cynthia Strike, Principal Planner with the Clarington Planning Services Department. Ms. Strike is a provisional member of the Ontario Professional Planners Institute who has approximately twenty-five years of experience. She was qualified by the Board as an expert in land use planning. - 3 - PL110827 Relevant facts Based upon the evidence and submissions, the Board has determined that the following facts are relevant to this appeal. The subject property is designated as Living Area in the Region of Durham Official Plan and as Urban Residential in the Municipality of Clarington Official Plan. The designations in both plans are intended to permit primarily residential uses. Other uses may be permitted that are compatible with residential uses. Section 9.3.4 of the Clarington Official Plan allows home based occupations in Urban Residential areas (Exhibit 1, Tab 28, p. 94). The definition of home based occupations is provided in section 24.14 of the Clarington Plan, but repair services for small engines and vehicles are specifically excluded (Exhibit 1, Tab 28, p. 107). The Official Plan definition for home industries includes small engine repair, but home industries are only permitted in more rural locations and not in Urban Residential areas. The primary use of the property is residential in keeping with the Official Plan designations. The small engine repair operation is a secondary use, located primarily in the garage on the property. The subject property is zoned Urban Residential Type One Exception Zone (R1-2) in Zoning By-law No. 84-63 of the former Town of Newcastle, which is Clarington's comprehensive zoning by-law for this area. The by-law permits single detached dwellings and home occupations. Section 2 of the by-law identifies the types of activities that are permitted as a home occupation and small engine repair is not included. Section 3.12 of the by-law identifies additional requirements for home occupations (Exhibit 1, Tab 29, p. 145). Section 39 of the Planning Act permits the passing of a temporary use by-law under section 34 for "...any purpose set out therein that is otherwise prohibited by the by-law." Section 39 requires that the temporary use by-law identify the area to which the by-law applies and the period of time during which the use is allowed, which shall not exceed a period of three years. While the temporary use by-law is in effect, the use can be extended for a period of up to three years. - 4 - PL110827 The Appellants had previously applied for a variance to Zoning By-law No. 84-63 to allow the use to continue, which was refused by the Clarington Committee of Adjustment. Support for continuation of the small engine repair business was expressed by those residents who testified on behalf of the Appellants, who also provided a petition. Evidence from residents living in close proximity to the property about noise, parking problems, and other issues was provided by the Municipality. Issues, analysis and findings The Board has carefully considered all of the evidence and submissions, including the authorities submitted by the parties. The Appellants contend that the small engine repair use may be legal non-conforming, and if it cannot be technically classified as legal non-conforming, it should be treated as such when being considered in relation to Official Plan and zoning requirements. They have operated the small engine repair business from the subject property for over thirty years without major difficulties. They maintain that there is sufficient parking in their driveway to meet the Municipality's requirements. According to the Appellants, the activities related to the business should not cause noise, parking or traffic issues for the neighbourhood. Furthermore, Mr. Knapp indicated that since he was recently laid off from his job, the small engine repair business, which had been part time, is now his major source of income. He noted that some of the operation occurs off-site, mainly when he repairs larger farm equipment. However, it is critical that he continues to be allowed to carry out repairs at the subject property. The Appellants maintain that the continued use of the property for a small engine repair business does not offend the I relevant provisions of the applicable Official Plans and zoning by-law and the use should be extended. In his argument, Mr. Worboy put forward a draft by-law that he requested the Board approve instead of simply approving an amended Zoning By-law No. 2011-080 with an extended term for the small engine repair use. - 5 - PL110827 The Municipality maintains that the use of the property is contrary to the provisions of the Official Plan and zoning by-law and it should not be allowed to continue. According to the Municipality, the proposal cannot be considered as a legal non-conforming use and it is specifically prohibited as a home occupation. The use cannot meet the provisions of the Official Plan and by-law for home occupations. The use is causing parking,traffic and noise problems in the area. The Municipality's position is that the extension of the temporary use should be refused and the by-law should be repealed. Based upon the evidence and submissions, the Board has determined that the matters discussed below are critical to making this Decision. Findings are included in the following sections where appropriate. Legal non-conforming use The parties agree that determination of whether the use should be considered legal non-conforming is not within the jurisdiction of the Board and is a matter for the Courts. The planning position provided in support of the Appellants is to a large extent based upon the proposition that the small engine repair use of the property may be a legal non-conforming use and if it does not technically fit into this category, the use should be reviewed using principals that would be applied to a legal non-conforming use. The Municipality maintains that the small engine repair use does not qualify as legal non-conforming because it was not permitted in the by-law for the former Township of Clarke, which predated the current Clarington by-law. Ms. Strike noted that prior to the adoption of Zoning By-law No. 84-63, the zoning on the subject property was determined through Zoning By-law No. 1592, as amended-by By-law No. 1653 of the former Township of Clarke (Exhibit 1, Tab 30). The amended by-law was adopted in 1969 which, according to the evidence, is prior to the establishment of the small engine repair use on the subject property. Ms. Strike contended that the Township of Clarke By-law was in effect prior to the establishment of the small engine repair operation and it did not permit this use on the property. Subsection 34(9) of the Planning Act allows uses that existed prior to a by-law's passage to continue as legal non-conforming uses. The Board notes that subsection 34(9)(x) of the Planning Act requires that no by-law can be passed to prohibit the use of - 6 - PL110827 any land, building or structure for any purpose that "...was lawfully used for such purpose on the day of passing of the by-law...." Therefore, if the subject property was not lawfully used for a small engine repair purpose at the time the by-law came into effect, it cannot be considered legal non-conforming. Ms. Sadler maintained that the Township of Clarke By-law was not a restricted area by- law and did not specifically prohibit small engine repair operations and therefore, the use should be considered legal non-conforming. However, the Board agrees with the Municipality, that the wording of the by-law prohibits other uses except those which are specifically permitted. The wording in section 4.1 which applies to R 1 zones state, "No person shall within any R 1 Zone use any lot or erect or use any building or structure for any purpose except one or more of the following uses..."(Exhibit 1, Tab 30, p. 164). Similar wording, applying to all zones, is included at the beginning of the General Provisions section of the by-law (Exhibit 1 , Tab 30, p. 162A). In the Board's view, these statements clearly prohibit all uses except those that are listed. The list of uses for the R1 zone does not include small engine repair operations. The Appellants filed an affidavit indicating that the property had been used for a trucking business prior to 1979 (Exhibit 3, Tab 5). However, the Board finds that the possible past use of the property for a different commercial purpose does not establish that the small engine repair operation should be considered as a legal non-conforming use. The Board recognizes the submissions of the parties and will not make a finding regarding the jurisdictional issue. However, the evidence and submissions are not sufficient for the Board to clearly determine that the use is legal non-conforming or that in some way legal non-conforming use principals should be applied. In addition, the Board agrees with the submissions of the Municipality that if this were a legal non- conforming use, there would be no need for planning applications to permit the use. Applicability of the Official Plan In her evidence, Ms. Sadler seems to be applying the legal non-conforming use approach in assessing the applicability of Official Plan policies to the small engine repair operation. She contends that because the use was established prior to the adoption of the Clarington Official Plan, its provisions should not apply. Mr. Worboy, in his argument, also notes that the use was in existence seventeen years before the adoption - 7 - PL110827 of the current Clarington Official Plan. Furthermore, in her witness statement, Ms. Sadler states that Official Plan policies are applicable to new applications, but are not applicable to existing uses where no application is filed under the Planning Act(Exhibit 2, Tab 2, p. 8). The Board recognizes that Official Plan policies are generally used to guide new proposals and changes to existing development. However, the Planning Act provides for recognizing legal non-conforming status to uses that were lawfully in existence prior to the adoption of the relevant zoning by-law. This is reflected in section 23.5 of the Clarington Official Plan which includes provisions for uses that are legal non-conforming (Exhibit 1, Tab 28, p. 105). There are no similar provisions, in the portions of the Official Plan that were provided in evidence, or in the Planning Act that would recognize legal non-conforming status for uses in existence prior to the adoption of the Official Plan and that would exempt such uses from any relevant Official Plan policies. Regardless of the above, there is now an application before the Board regarding the temporary use by-law and therefore, even using Ms. Sadler's interpretation, this application should be subject to the relevant provisions of the Official Plans. In view of the proceeding, the Board finds that the policies of both the Durham and Clarington Official Plan apply. Conformity with the Official Plan and Zoning By-law No. 84-63 As a result of the above findings, the temporary use by-law must be evaluated on the basis of the provisions of the Official Plan and other relevant planning documents, and the suitability of the use for the subject property. In the current case, both the Durham Official Plan and the Clarington Official Plan recognize the primary use of the property, which is residential. The small engine repair , business is a secondary use of the property. As a secondary use on a residential property, there could be provision in the Official Plan to allow the small engine repair business as a home occupation. However, as noted earlier, section 24.14 of the Clarington Official Plan specifically exclude small engine repair services from home occupations. In addition, Ms. Strike noted that the use would not comply with section 9.3.6 (a), (d) and (f) of the Clarington Official Plan which i - 8 - PL110827 requires that the home occupation not be located in the garage. Ms. Strike contends that the use would not comply with other provisions of this section which require that the use not create a public nuisance with regard to noise, hours of operation, and traffic, and that there be adequate off-street parking (Exhibit 1, Tab 28, p. 94). The Clarington Official Plan allows small engine repair operations through a separate category, that is, as home industries. However, home industries are not permitted in areas designated as Urban Residential. Through a number of Official Plan sections including 13.3.2, 13.3.3 they are permitted in agricultural areas and more rural parts of the Municipality (Exhibit 1, Tab 28, p. 98). Section 23.4.4 of the Official Plan (Exhibit 1, Tab 28, p. 105) which sets out requirements for temporary use by-laws, states the following: "Temporary use by-laws may be passed to permit the use of lands building or structures, on a temporary basis, for any purpose provided that: a) the proposed use is temporary in nature; b) the proposed use is compatible with adjacent existing land uses, there is minimal impact on Natural Features and Land Characteristics identified on Map C, or satisfactory measures to mitigate any adverse impact will be applied; c) there will be no adverse impact on traffic or transportation facilities or services in the area; d) adequate access and parking are provided; e) the use can be removed and the site can be restored to its original condition; f) adequate sewage disposal and water services are available in compliance with provincial and regional standards; and g) it does not jeopardize the long term implementation of this Plan." The Municipality provided evidence of concerns expressed by immediate neighbours about noise, traffic and parking impacts (Exhibit 1, Tab 15). Furthermore, the evidence is that Cobbledick Road is used for access between Highway 115/35 and Main Street and the Municipality is in the process of restricting parking on both sides of Cobbledick Road in the vicinity of the subject property in order to provide for a more efficient flow of traffic (Exhibit 1, Tab 23). - 9 - PL110827 The Municipality's Comprehensive Zoning By-law includes specifications for parking for the area. According to the submissions, the by-law through section 3.16 requires a minimum of two spaces for the residential use and one for the accessory use (Exhibit 1, Tab 29, pp. 154 and 155). The Board understands that the garage space will be occupied by the small engine repair operation. Ms. Strike contends that the existing driveway is not of sufficient size to provide the required number and size of parking spaces. While the Appellants maintain that the parking will be adequate, the evidence has not demonstrated that the driveway is large enough to accommodate three spaces of the size required in the by-law. Given the restrictions that are being imposed on parking on both sides of Cobbledick Road, the Board is concerned that authorizing a proposal with inadequate parking will aggravate traffic issues in the vicinity of the subject property. The Appellants contend that noise generated from the small engine repair operation is limited and is similar to residents of the neighbourhood using lawn mowers. However, the Board was presented with no evidence that would allow it to confirm the Appellants' submissions regarding noise. Given the above, the Board cannot conclude that the small engine repair use complies with section 23.4.4 b) of the Official Plan in that there appear to be compatibility issues with adjacent land uses. Furthermore, the Board finds it has not been demonstrated that the requirements of section 23.4.4 c) and d) will be maintained because of potential parking and traffic issues. From the provisions of Zoning By-law No. 84-63 and the Official Plan noted above, it is clear to the Board that small engine repair operations are not allowed on the property as either a primary use or as a secondary use as a home occupation. Furthermore, the evidence of the Municipality is that small engine repair businesses are allowed as home industries, but home industries are not permitted on the subject property because it is designated as Urban Residential. The reasons for not allowing small engine repair uses as home occupations are precisely the reasons that they are prohibited in Urban Residential areas. They have the potential for negative impacts that are not compatible with residential uses in urban areas and are more appropriate for agricultural areas because of the potential impact. In the current case, the evidence demonstrates that negative impacts are occurring in the vicinity of the subject property. It is recognized - 10 - PL110827 that Orono is a village, but the evidence demonstrates that it contains some urban characteristics. The Board has not been presented with evidence to demonstrate that the area which includes the subject property would be more appropriately classified in a rural designation. The Appellants, in their submissions, contend that since the Municipality passed By-law No. 2011-080 it must conform to the Official Plan since subsection 24(1) of the Planning Act requires all by-laws passed by municipalities to comply with the relevant Official Plans. However, the evidence of the Municipality is that it passed By-law No. 2011-080 only as a means to allow a short period of time for the Appellants to continue their business and consider other options. The Municipality maintains that the passage of the by-law should not be viewed as confirmation of conformity with the Official Plan. In consideration of all of the above, the Board finds that the small engine repair use does not comply with the provisions of the Clarington Official Plan and with the provisions of Zoning By-law No. 84-63. It would not be appropriate for the Board to authorize a by-law to permit the extension of the small engine repair use on the property. The Board has reviewed the draft by-law included in Mr. Worboy's submissions and finds that it does not resolve the essential issues of By-law No. 2011- 080 in that it would extend a use which is contrary to the Official Plan. Subsection 39(1) of the Planning Act provides for passage of temporary use by-laws to authorize, on a temporary basis, uses that are otherwise prohibited in the by-law, but not to authorize uses prohibited in the Official Plan. The authorities provided by the Municipality confirm that temporary use by-laws must conform to the relevant Official Plans. The Board interprets subsection 39(1) as applied to the current case as providing discretion to approval authorities to allow uses not permitted in an R1-2 zone, but not providing discretion to allow uses prohibited in an area designated as Urban Residential in the Official Plan. Since the Board has found that the small engine repair use does not conform to provisions of the Official Plan, the Board finds that under subsection 39(1) of the Planning Act, it is not appropriate to authorize this use on the subject property through a temporary use by-law. Furthermore, the submissions of the Municipality note that subsection 24(1) of the Planning Act requires that any by-law passed by a municipality must conform to the Official Plan. Based upon the finding that the by-law does not comply with the Official PL110827 Plan, the Board also finds that it does not comply with subsection 24 (1) of the Planning Act. The Board has considered the authorities submitted by the Appellants and finds that they can all be distinguished from the current appeal. The authority that was referenced in the Appellants' argument, that is the Board Decision, Ingold v. North Dumfries (Township), (2010) O.M.B.D. No. 1053, authorizes a temporary use only for a period of one year to allow time for the Appellant to find alternatives for the use that the by-law allows. In that Decision, the Board noted that temporary use by-laws should not be used to simply allow a prohibited use to continue in the longer term by being renewed every three years. That is exactly the intent to the temporary use by-law, in the current appeal, where the Appellants fully intend to continue the small engine repair business through potentially a number of extensions of the three year period. The Board finds that this is not an appropriate use of a temporary use by-law. The Board will not address the other authorities in detail, other than to note that they have not changed the Board's findings in this matter. In making the above findings, pursuant to subsection 2.1 of the Planning Act, the Board has taken into account the decisions of Municipal Council and the Committee of Adjustment with regard to this matter. The Board considers the intent of the decisions refusing the proposed variance and approving the temporary use for a period of only two months through By-law No. 2011-080 as indication that the continued use of the property for the small engine repair operation is not appropriate and does not comply with the applicable planning documents. Conclusion The Board has some sympathy for the Appellants and notes that there was discussion during the hearing of other options for allowing a continuation of their business in a manner which would not offend the provisions of the Official Plan and zoning by-law. Hopefully, there may be some resolution of this matter through one of those approaches. Furthermore, there may be some relief for the Appellants if the Courts were to determine that the small engine repair business should be considered as a legal non-conforming use. - 12 - PL110827 However, based upon the evidence and submissions of the parties presented in relation to this hearing, the Board must conclude that the small engine repair business does not comply with the provisions of the Clarington Official Plan and with Zoning By-law No. 84-63. The Board cannot authorize continuation of the use. The Board will not approve the draft by-law included in the Appellants' submissions. The Municipality has requested that the Board allow the appeal and repeal By-law No. 2011-080. Recognizing that By-law No. 2011-080 is under appeal in its entirety and in view of the above findings, the Board agrees that repeal of the by-law is appropriate. However, since the purpose of the appeal was only for the extension of the period of the use permitted in the by-law, the Board finds that allowing the appeal in part would be the more appropriate course of action in order to repeal the by-law. The appropriate Order is provided below. Order THE BOARD ORDERS that the appeal is allowed in part and Municipality of Clarington By-law No. 2011-080 is repealed in its entirety. So Orders the Board. "C. Conti" C. CONTI MEMBER CORPORATION OF THE MUNICIPALITY OF CLARINGTON icy-erev�r��r•��r �:� being a By-law to amend By-law 84-63, the Comprehensive Zoning By-law for the Corporation of the former Town of Newcastle WHEREAS the Council of the Corporation of the Municipality of Clarington deems it advisable to amend By-law 84-63, as amended, of the Corporation of the Municipality of Clarington for ZBA 2011-0014; NOW THEREFORE BE IT RESOLVED THAT, the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. Section 12.4.2 "SPECIAL EXCEPTIONS — URBAN RESIDENTIAL (R1) ZONE" is hereby amended by adding thereto the following new Special Exception 12.4.88 as follows: "12.4.88 URBAN RESIDENTIAL EXCEPTION (R1-88) ZONE Notwithstanding Section 3.16 e) and Section 12.4.2 a) iv those lands zoned "R1- 88" on the attached Schedule to this By-law, shall only be used for a small engine repair business within a garage attached to an existing single detached dwelling. Pursuant to the requirement of Section 39 of the Planning Act, 1990 the use may be permitted for a period ending September 19, 2011." 2. Schedule "12" to By-law 84-63, as amended, is hereby further amended by changing the zone designation from "Urban Residential Exception (R1-2) Zone" to "Urban Residential Exception (R1-88) Zone" as illustrated on the attached Schedule "A" hereto. 3. Schedule "A" attached hereto shall form part of this By-law. 4. This By-law shall come into effect on the date of the passing hereof, subject to the provisions of Sections 34 and 39 of the Planning Act. BY-LAW passed in open session this 18th day of July, 2011. Adrian o r, Mayor Municipal Clerk This is Schedule "A" to By-law 2011 -080 , passed this 18th day of July 1201 .1 A.D. BOWEN STREET w O co � w >r w Ui ~' COBBLEDICK STREET z cn U 'V ® Zoning Change From "R1-2"To "(H)R1 dri oster, Mayor L. B rie, Municipal Clerk U V 2 h f O 4U 0) PRINCESS ST PRINCESS ST O U) w BOWS ST = COBB DICK z 9Ti0'L ST O D HESS > z REET o O AFT CONCESSION R SION ROAD 5 SOMMERVILLE DR p w 0 m m DRIVE M1a C O N R w ZBA 2011-0014 SCHEDULE 13