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HomeMy WebLinkAbout75-112REPORT NO. 112 REPORT ON REZONING APPLICATION FOR DENNIS THOMPSON: 1. Introduction: . This is an application for a change in zoning to permit the applicant to finish a single family dwelling which he has already commenced without obtaining a building permit. The dwelling which is now under construction is located on 2.25 acres of land in Lot 32, Concession 7, Clarke. The land is on the east side of the Leskard Road in the south end of the hamlet of Leskard. 2. Conformity with Existing Official Plan: The proposal appears to conform with the draft Official Plan for the Township of Clarke. The rear portion of the lot where construction is underway appears to be within the rural designation while the front portion adjacent to the stream is in the Envir- onmental Protection Area. The policy of the plan for non-farm residential development in the rural area is spelled out in Section 3(10)(b)(i) which reads as follows: "Existing residential development may be recognized in the implementing restricted area by-law and, where several dwellings are grouped, infilling within the zone may be permitted on lots not less than 2 acres in area". There are a considerable number of dwellings in the immediate area including some to the north and south on the same side of the road and a number on the other side of theroad opposite the subject lot. There is also an existing workshop on the corner of the lot, and this also contributes to the built-up character of the area. This would appear to be a case of infilling within the meaning of the Official Plan. 3. Conformity with Porposed Official Plan: Since the new Interim District Plan will likely be in effect by the time any rezoning of the applicant's land reaches the O.M.B., con- sideration should also be given to the proposals conformity with the new Interim Plan. The applicants' lands are all designated 'Environmental Pro- tectiont in the proposed Interim Plan and the construction of a dwelling would not be permitted in that area. However, I will be recommending in another report that the Environmental Protection designation in this area be re -defined to represent more accurately Page #2......... the actual limit of the land subject to flooding. The applicant's site would then be within the "Rural" designation. In this desig- nation 'limited non-farm residential uses' are permitted. There is however, no indication in the plan as to what 'limitations' are intended to be imposed. I think that this point should be clari- fied by inclusion of a sentence similar to that quoted above from the Clarke Official Plan. At the moment it is impossible to say whether or not the proposal conforms to the Interim Plan. 4. Present Zoning: The present zoning of the land is agricultural which requires a minimum lot size of 40 acres and a minimum lot frontage of 330 feet for a single family dwelling. Since this lot was created by the Committee of Adjustment after the passing of by-law 1653, it does not enjoy the benefits of Section 3.15 which permits the con- struction of dwellings on pre-existing lots of less than the pre- scribed area. A dwelling cannot legally be constructed on the subject parcel under present zoning. 5. History of the Application: (1) In the fall of 1973 the former Clarke Committee of Adjustment granted a severance separating the subject lot from the adjacent farm. The committee was quite correct in doing this because the land was used at the time for non-residential purposes only and the minimum lot size for a non-residential use in the agricultural zone is one acre. As pointed out above, the lot so created is not eligible for a residential building permit and no indication was given at the time of application for the severance that any residential use was contemplated. (2) Information supplied by Mr. Warren indicates that Mr. Thompson subsequently applied for a permit to construct a dwelling on the subject land. This application was refused as By-law #1653 of the former Township of Clarke requires a minimum lot area of 40 acres in an "A" zone and the lot was created after By-law #1653 was enacted. Mr. Thompson proceeded to construct the dwelling without a permit. A stop work order was issued by the building department and the By-law Enforcement Officer notified. Thompson attended the Hampton Office Seeking advice. He was advised of two choices in order of merit: (1) an application to Council for rezoning, OR Page #3......... 5. History of the Application: (continued)....... (2) an application to Committee of Adjustment for approval of reduction in required acreage. Mr. Thompson chose the latter as it appeared to him to be more expedient. His application was heard by the Committee and a decision, refusing his application, was handed down by the Committee on September 24, 1974. The applicant appealed this decision to the O.M.B. On October 49 1974 a Summons (service by mail) was sent to D. Thompson to appear in Court on October 28, 1974 on two charges; violation of Building By-law and violation of zoning By-law. On October 10,1974 an Interim Supreme Court injunction was granted restraining any further work on the subject building. On October 22,1974 a site inspection indicated that some constru- ction had continued after stop work order. On October 28,1974 Thompson entered a plea of guilty on the charge of building without a permit. A fine of $50.00 with no costs was imposed. The second charge in respect of his zoning violation was withdrawn by the prosecution as Mr. McNeely was of the firm opinion that this matter was adequately covered by the injunc- tion as previously enacted by Mr. Warren. On October 29,1974 a Supreme Court injunction was issued by Chief Justice Parker restraining any further work on the subject building until such time as the matter is disposed of to the satisfaction of the plaintiff (Municipality). On November 711974 a site inspection revealed that between the period of October 22, 1974 (after the Interim Supreme Court injunction had been obtained) and November 71 1974, Thompson had proceeded to install the sub -flooring over the floor joists to the extent that the basement was completely covered. Page #4........ 5. (continued)........ On or about the third week of February, 19759 Mr. Thompson was observed byofficials of the Town to have re -commenced constru- ction of the dwelling contrary to the Supreme Court injunction. Work had reached the point where shingles were being placed on the roof. On February 26, 19752 Mr. Justice Osler heard two motions against Mr. Thompson to commit him to jail and to require him to tear down the existing work. Thompson was committed to jail for 3 days for contempt of the previous injunction and the decision was reserved on the second motion to enable Mr. Thompson's appeal on the variance to be heard by the O.M.B. Mr. Thompson served his sentence on the three days commencing February 28. Since completing his sentence Mr. Thompson has been observed to be living in the basement of his dwelling contrary to Section 3.14 of by-law 1653 and to be occupying the premises without proper sanitary facilities as required by the Health Unit. 6. Circulation of the Application: The application was circulated to the following agencies: 1. Durham Planning Department 2. Durham Health Unit 3. Plans Administration Branch 4. Ganaraska Conservation Authority 5. Ontario Hydro 6. Newcastle Works Department 7. Newcastle Building Department All agencies replied except the Durham Planning Department, the Plans Administration'Branch and the N6wcdstle Works Department. _. Those are therefore considered to have,no objection to_the application. 7. Agency Comments: a) Durham Health Unit - The Health Unit have approved the property for the installation of a septic tank. b) Ganaraska Conservation Authority - They forsee no problem provided that no more fill is placed in the flood plain to the stream, and provided that the septic bed will handle the effluent from the house without contam- inating the stream. Page #5 ........ c) Ontario Hydro - They have no objection. d) Newcastle Building Department - They feel that the existing building should be removed prior to consideration of any zoning change. It should be noted that the building which has been erected without a permit violates the building code in several respects. 6. Conclusion: In considering this application, I have had to set aside the knowledge that I have of the applicant's numerous violations of by-laws, Health Unit regulations and Supreme Court orders. In deciding whether or not to rezone this land the Committee and Council should proceed on planning considerations only and should make the same decision which would have been made if the site were still vacant at the time of application. It is the function of the Courts and not the P.A.C. to punish individuals who violate by-laws and court orders. Having reviewed the existing Official Plan and comments of the various agencies, I am satisfied that this is a case of infilling within a generally built up area within the meaning of the Plan, and that no adverse environmental. conditions will arise from devel- opment of this lot. Therefore, I am recommending that that portion of the lot which lies above the flood line of the stream be re -zoned to a Rural Residential category and that Municipal Planning Consultants be authorized to draw up the necessary by-law amendment at the cost of the applicant. While it is not the function of the P.A.C. to punish those who violate the Town's by-laws, the Committee should not act to aid and abet individuals who have already shown that they have no respect for by-laws, regulations, and court orders. Therefore, since we are dealing with someone who has demonstrated that he cannot be relied on to obey the law , I think the special extra- ordinary precautions are in order in this case, I would recommend that the rezoning proposed above should only be proceeded with when the applicant has removed himself from the premises and entered into a written agreement with the Town to the effect that (a) he will not occupy or permit the premises to be occupied without a certificate of occupancy from the building inspector. (b) he will proceed no further with any construction until such is in conformity with all by-laws,regulations, and court orders in effect. f Page #6....... (c) he will rectify all faults in construction to the satis- faction of the building inspector and install sanitary facilities to the satisfaction of the Health Unit. As surety for the performance of this agreement the applicant should be required to deposit with the town in the form of cash, negotiable securities, or a promissory note secured by property, an amount equal to twice the cost of complying with the terms of the agreement, which amount would be forfeited in the event of his default. In addition, the applicant should be required to convey sufficient land to the municipality to bring the forced road in front of his property up to a width of 66 feet. Respectfully submitted, George F. Howden, Planning Director.