HomeMy WebLinkAbout2004-223By- law 2004-223
is a By- law
ordered by the
Ontario Municipal
Board . See Page
6 through 9 of this
order for the
By- law .
Ontario Municipal Board
Commission des affaires municipales de l’Ontario
ISSUE DATE:
Nov. 1, 2004
DECISION/ORDER NO:
1723
PL031269
Hendry Investments Limited., the TDL Group Ltd. and the owner of 258 King Street East have
appealed to the Ontario Municipal Board under subsection 17(24) of the Planning Act, R.S.O.
1990, c. P. 13, as amended, from a decision of the Municipality of Clarington to approve
Proposed Amendment No. 36 to the Official Plan for the Municipality of Clarington to implement
the recommendations of the Bowmanville King Street East Corridor Study
O.M.B. File No. O030412
Hendry Investments Limited., the TDL Group Ltd. and the owner of 258 King Street East have
appealed to the Ontario Municipal Board under subsection 34(19) of the Planning Act, R.S.O.
1990, c. P. 13, as amended, against Zoning By-law 2003-153 of the Municipality of Clarington
O.M.B. File No. R030286
APPEARANCES:
Parties
Counsel*/Agent
Town of Clarington D. Hefferon*
Simonian Family I. Kagan*
Hendry investments Limited G. Broll
MEMORANDUM OF ORAL DECISION DELIVERED BY J. P. ATCHESON ON
ON OCTOBER 19, 2004 AND ORDER OF THE BOARD
This hearing of the Board results from a procedural order of the Board issued on
August 26, 2004 and numbered 1383 and further amended by the Board’s
Decision/order No. 1520) issued September 17, 2004. The hearing dealt with the
appeals from Official Plan Amendment No. 36 of the Municipality of Clarington. This
amendment proposes to amend the Clarington Official Plan and the Bowmanville East
Main Central Area Secondary Plan to implement the recommendations of the
Bowmanville King Street East Comprehensive Corridor Study. This Study also
recommended major revisions to the existing Zoning By-law. These changes are
contained in Zoning By-law Amendment No. 2003-153 which is also part of the matters
before the Board.
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Since the issuing of the procedural orders, the Municipality and the parties have
been working to resolve the matters surrounding the appeal.
The TDL Group in a letter dated September 17, 2004 to the Board has withdrawn
all its appeals.
The Board dismisses the appeal of the TDL group in its entirety. If the
Municipality wishes to seek costs against the TDL Group then it should make the
appropriate motion in accordance with the Board’s procedures.
At the commencement of the hearing Mr. Hefferon, the solicitor for the
Municipality, indicated that a settlement with the remaining appellants has been
reached.
Exhibit 6 (Tab 7) contained the minutes of settlement between the Municipality of
Clarington and Hendry Investment Limited respecting 252 King St. East and 9 St.
George Street in south Bowmanville.
Exhibit 6 (Tab 9) contains the minutes of settlement between the Municipality of
Clarington and the owners of 258 King Street East in Bowmanville.
The Council of the Municipality of Clarington has approved the minutes of
settlement by By-law 2004-191and By-law 2004-221 respectively.
The Board heard uncontradicted evidence from the planner for the Municipality
about the studies that had been undertaken by the Municipality for the King Street East
corridor in Bowmanville. It is clear to the Board that the Municipality has followed good
planning practices and is developing contemporary land use, transportation, and site
plan design criteria for this part of the community. The Bowmanville King Street East
Corridor Study’s final report and filed as Exhibit 8 was approved by Council in
September 2003. It attests to the Municipality’s determination to implement new
standards for this area of the Municipality. It is the planner evidence that Official Plan
Amendment No. 36 and Zoning By-law Amendment 2003-153 implement the findings of
this study. It is equally clear to the Board that the Municipality and the appellants have
been working diligently to find a common ground in meeting their personal development
objectives while maintaining the new planning strategies established for this part of
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Bowmanville. Planning in the context of the King Street East Corridor Study must be a
dynamic and fluid process.
The Board is satisfied by the uncontradicted evidence that the modification
agreed to by the parties as they relate to Official Plan Amendment No. 36 and Zoning
By-law 2003-153 represent good planning and should be approved. It was brought to
the Board’s attention that during the review and settlement process a number of clerical
and number errors in By-law 2003-153 were discovered. These are all minor and
clerical in nature and affect only By-law 2003-153 and do not require further notification.
The Board approves Official Plan Amendment 36 with the following modification
as contained in Attachment “1” and orders that Amendment No. 36, as modified, be
approved.
The Board allows the appeals of Hendry Investment Limited for 9 St. George
Street in south Bowmanville and 252 King Street East, and those appeals of the
Simonian Family, and the owners of 258 King Street East in Bowmanville but only in so
far as they reflect the minutes of settlement found in Exhibit 6.
All other appeals are dismissed.
In order to give effect to this decision the Board orders that By-law 2003-153 be
amended as set out in Attachment “2”.
So orders the Board.
“J. P. Atcheson”
J. P. ATCHESON
MEMBER
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Attachment “1”
REQUESTED MODIFICATIONS TO AND
APPROVAL OF AMENDMENT NO. 36
TO THE OFFICIAL PLAN FOR
THE MUNICIPALITY OF CLARINGTON
In order to implement the Minutes of Settlement between the Municipality of Clarington
and Hendry Investments Limited dated July 20, 2004 and the Minutes of Settlement
between the Municipality of Clarington and Hovane Simonian, Beatrice Simonian, Seta
Simonian and Taline Simonian dated October 12, 2004, the Board orders the following
modifications to the provisions of proposed Amendment No. 36 to the Official Plan for
the Municipality of Clarington which amends, inter alia, the provisions of the
Bowmanville East Main Central Area Secondary Plan (“Secondary Plan”) as set out
below and as so modified approves Amendment No. 36:
1. By modifying Section 12 of proposed Amendment No. 36 which adds new
Clauses 8.4 1 and 2 thereto, by adding a new Clause 8.4.3 as follows:
“8.4 3. In addition to the uses permitted by clause 1 of this Section, on the lands
known for municipal purposes in 2004 as 258 King Street East, a single
building may be constructed and used with a mix of residential uses and
such commercial uses that Council considers to be appropriately limited in
scale and type having regard to the capacity, operations and safety of
King Street East and Galbraith Court and to the compatibility with adjacent
residential uses provided that:
a) A minimum of 50 % of the gross floor area of the building is
constructed and used for residential purposes; and
b) Commercial uses do not exceed a maximum of 400 square
metres.”
2. By modifying Section 20 of proposed Amendment No. 36 which adds a new
Section 13.2 to the Secondary Plan by:
-deleting Clause 13.2(c),
-adding the word “and” at the end of Clause 13.2(a), and
-deleting the word “and” at the end of Clause 13.2(b) and changing the
punctuation at the end of Clause 13.2(b) to a period.
3. By modifying Section 21 which adds a new Section 13.4 to the Secondary Plan
by deleting the last sentence therefrom, and by adding at the end of Section 13.4
the following new sentence:
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“In the event Council of the Municipality of Clarington is of the opinion that an
integrated system of private lanes is not likely to be provided in whole or in part,
Council shall investigate the possibility of establishing (1) an integrated system of
public and private lanes, (2) an integrated system of public lanes, or (3) the
extension of Queen Street between St. George Street South and Frank Street on
an appropriate alignment in order to achieve the intent of this Section 13.4.”
4. By modifying Map B, Land Use East Business District, contained in Exhibit “C” to
Official Plan Amendment 36 by deleting from it the Queen Street Extension from
the easterly limit of St. George Street South to the westerly limit of Frank Street.
5. By modifying the designation of the lands known for municipal purposes in 2004
as 252 King Street East, Bowmanville shown on Map B, Land Use East
Bowmanville District, contained in Exhibit “C” to Amendment No. 36, from
“Medium Density Residential” to “High Density Residential”.
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Attachment “2”
BY-LAW NO 2004-223
being a by-law to amend Municipality of Clarington
Zoning By-law 2003-153
WHEREAS Hendry Investments Limited (“Hendry”), the TDL Group Ltd. and the owner
of 258 King Street East, Bowmanville appealed to the Ontario Municipal Board from a
decision of the Municipality of Clarington to approve Proposed Amendment No. 36 to
the Official Plan for the Municipality of Clarington and against Zoning By-law 2003-153
of the Municipality of Clarington (OMB File Nos. O030412 and R030286);
AND WHEREAS the beneficial owners of 258 King Street East, Bowmanville are
Hovane Simonian, Beatrice Simonian, Seta Simonian and Taline Simonian (collectively,
“Simonian”) own 258 King Street East, Bowmanviile;
AND WHEREAS Hendry is the beneficial owner of 252 King Street East and 9 St.
George Street South, Bowmanville;
AND WHEREAS by letter dated September 17, 2004 from Cassels Brock on behalf of
TDL Group Ltd. to the Board, TDL Group Ltd.’s appeals were withdrawn;
AND WHEREAS by Minutes of Settlement dated July 20, 2004, contained in Exhibit 6,
Tab 7, the Municipality of Clarington and Hendry have settled Hendry’s appeals on the
terms set out therein;
AND WHEREAS by Minutes of Settlement dated October 12, 2004, contained in Exhibit
6, Tab 9, the Municipality of Clarington and the Simonians have settled the Simonian’s
appeals on the terms set out therein;
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AND WHEREAS the implementation of these settlements requires, inter alia, the
amendment of Municipality of Clarington Zoning By-law 2003-153;
AND WHEREAS by approval of Report #PSD-123-04 at its meeting on October 12,
2004, the Municipality of Clarington has requested that the Ontario Municipal Board
make certain additional amendments to Zoning By-law 2003-153 in order to correct
certain technical errors in the By-law,
NOW THEREFORE, the Ontario Municipal Board hereby approves the Zoning By-law
Amendment in the manner as follows:
1. Municipality of Clarington Zoning By-law 2003-153 is amended as follows:
(a) With respect to the lands known for municipal purposes in 2004 as 258
King Street East, Bowmanville, by amending Section 14.6.24 which is
added to Zoning By-law 84-63, as amended by Section 4 of By-law 2003-
153, as follows:
(i) by deleting from subsection 14.6.24(1) the words and figures:
“Notwithstanding Sections 3.15(e)(iv), 14.1(a), 14.1(b), 14.2, 14.3(c),
14.4(c) and 14.4(g)”
and by replacing them with the following words and figures:
“Notwithstanding Sections 3.6, 3.13(a), 3.16(e), 3.17, 3.22, 14.1, 14.2,
14.3(c), 14.4(a), 14.4(b) and 14.4(c)”;
(ii) by deleting paragraph 14.6.24(1)(a) and by replacing it with the following:
“(a) Only an apartment building, link townhouse dwellings, stacked
townhouse dwellings, street townhouse dwellings, or a single
mixed use building containing a combination of residential uses
and commercial uses permitted by this Section, may be erected
and used on the lot.”;
(iii) by adding new paragraphs 14.6.24(1)(i) and (j) as follows:
“(i) with respect to the single mixed used building that may be
constructed or used on the lot,
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i) the permitted commercial uses are the following:
- a business, professional or administrative office
- a dry cleaners distribution centre which does not contain
more than 200 square metres of gross commercial floor
area
- a laundry, coin operated, which does not contain more
than 200 square metres of gross commercial floor area
- a service shop, personal, which does not contain more
than 200 square metres of gross commercial floor area
- a retail commercial establishment which is not a general
merchandise store and which does not contain more than
200 square metres of gross commercial floor area
- either a convenience store or a drugstore, neither of which
may contain more than 100 square metres of gross
commercial floor area
- a video store which does not contain more than 100
square metres of gross commercial floor area;
ii) the permitted residential uses are dwellings which have
individual or a common entrance from street level and the
occupants of which have equal rights to the use of all
common halls and/or stairs and/or elevators and/or yards
serving the residential uses within the permitted mixed use
building;
iii) the permitted mixed use building shall not contain an
eating establishment or a drive-through facility;
iv) the total amount of the gross commercial floor area
contained in the permitted mixed use building shall not
exceed 400 square metres;
v) the permitted mixed use building shall contain an amount
of gross residential floor area which is at least equal to
50% of the aggregate of the gross residential floor area
and gross commercial floor area contained in the building;
(j) also, with respect to the mixed use building that may be
constructed or used on the lot,
(i) a front yard and an exterior side yard shall be provided and
maintained on the lot with a minimum width of 1.5 metres
and a maximum width of 2.0 metres;
(ii) the building shall be set back a minimum distance of 10
metres from the northerly lot line and a minimum distance
of 5.0 metres from the westerly lot line;
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(iii) the building shall not be less than 2 stories nor more than
4 stories above grade;
(iv) the length of a business establishment façade of the
building on the lot with a lot frontage on King Street East
shall not be less than 50% of the length of the lot frontage;
(v) landscaped open space at least 3.0 metres wide abutting
the northerly and the westerly limits of the lot, respectively,
comprising a total area of at least 30% of the area of the
lot, shall be provided and maintained on the lot;
(vi) at the northwest corner of King Street East and Galbraith
Court, within the triangle space formed by the street lines
and a line drawn from a point in one street line to a point in
the other street line, each such point being 5.0 metres
measured along the street line from the point of
intersection of the street lines, no motor vehicle, as defined
in the Highway Traffic Act, as amended, shall be parked,
no building or structure which would obstruct the vision of
drivers of motor vehicles shall be erected, and, no land
shall be used for the purposes of growing shrubs or trees
in excess of 0.75 metres in height.
(vii) one loading space with a minimum width of 4.0 metres and
a minimum length of 9.0 metres shall be provided and
maintained for the permitted mixed use building on the lot;
(viii) notwithstanding the “Parking Space Requirement Table”
contained in Section 3.16(a) of the aforesaid By-law 84-63,
minimum off-street parking spaces shall be provided and
maintained on the lot as follows:
- for commercial uses contained in the permitted mixed
use building, 1 parking space for each 30 square
metres of gross commercial floor area, and
- for dwellings contained in the permitted mixed use
building, parking spaces shall be provided at the
following rates:
- 1 bedroom apartment - 1 space per unit
- 2 bedroom apartment - 1.25 spaces per unit
- a dwelling containing - 1.5 spaces per unit,
3 or more bedrooms
provided that parking spaces shall not be located in a
required front yard or in an exterior side yard.
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(iv) by deleting Subsection 14.6.24(2) and by replacing it with the following:
“(2) Notwithstanding any other provision of this By-law, no portion of
the lot shall be used to provide motor vehicle access directly from
it to King Street East, nor to provide motor vehicle access from
any portion of the lot to Galbraith Court which is nearer than 25
metres northerly from the northerly street line of King Street East
and which is nearer than 7.5 metres southerly from the northerly
lot line of the lot.”
(v) by deleting subsection 14.6.24(3) and by replacing it with a new
Subsection 14.6.24(3) as follows:
“(3) For the purposes of this Section, the term
“business establishment” means a building which contains any
one or more commercial uses permitted by this By-law;
“business establishment façade” means the portion of the exterior
wall located between finished grade and the level which is 3
metres above finished grade of a business establishment which
wall faces King Street East;
“drive-through facility” has the same meaning that it is assigned by
Subsection 16.5.30(3);
“drug store” means part of a permitted mixed use building which is
used primarily for the combination of storage and display for the
retail sale of non-prescription medicines, health and beauty aids,
personal hygiene products, confectionary items, stationary, and a
prescription pharmacy;
“floor area” means the total horizontal area of a floor or floors;
“general merchandise store” means a retail commercial
establishment primarily accommodating the sale of a variety of
commodities which include all or several representatives of the
following categories of merchandise: clothing, hardware, home
furnishings, household appliances, sporting goods and toys.
However, the term “general merchandise store” does not include a
convenience store, a drug store, and a speciality retail store
engaged primarily in the sale of a particular commodity such as,
but not limited to, a book store, a clothing store, a jewellery store
and a shoe store;
“gross commercial floor area” means the total of the floor area of
each floor of the permitted mixed use building measured from the
exterior face of the exterior walls, whether such floor is above or
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below finished grade, which is designed and/or used for permitted
commercial purposes, but excluding any part of the building used
for mechanical equipment, parking, loading, common garbage
storage, elevators, stairs or storage below finished grade. Where
a floor is used for both residential and commercial uses permitted
by this By-law, the gross commercial floor area shall be measured
from the exterior face of exterior walls and/or the centre line of
interior walls separating the commercial uses from the residential
uses;”
“gross residential floor area” means the total of the floor area of
each floor of the permitted mixed use building measured from the
exterior face of the exterior walls, excluding garages, mechanical
equipment, parking, loading, common garbage storage, elevators,
stairs, cellars, unfinished attics, and sunrooms which are not
habitable year round. Where two or more dwellings share a
common wall, gross residential floor area shall be measured from
the centre line of the common wall. Gross residential floor area
shall also include common indoor areas located within the
building. Where a floor is used for both permitted residential and
permitted commercial uses, the gross residential floor area shall
be measured from the exterior face of exterior walls and/or the
centre line of interior walls separating the residential uses from the
commercial uses;
“stacked townhouse dwelling” means one of a group of three or
more building units separated vertically and/or horizontally; and
“video store” means a retail commercial establishment contained
in the permitted mixed use building which is used primarily for the
sale or rental of video tapes or DVD discs to individual customers.
(b) With respect to the lands known for municipal purposes in 2004 as 252
King Street East, Bowmanville, by amending Section 15.4.27 which is
added to Zoning By-law 84-63, as amended by Section 7 of By-law No.
2003-153, by deleting therefrom Clause 15.4.27(1)(a) and by adding new
Clauses 15.4.27(1)(a), (b), (c) and (d) and new Subsection 15.4.27(2) as
follows:
“15.4.27 URBAN RESIDENTIAL EXCEPTION (R4-27) ZONE
(1) Notwithstanding Sections 3.16 and 15.2(c) (g) (h) and (i), no person shall
use any land or erect or use any building or structure in a R4-27 zone
unless the provisions of this section and the applicable provisions of the
aforesaid By-law 84-63 are satisfied:
(a) Only an apartment building may be erected and used on a lot,
provided that the lot has a minimum lot frontage of 40 metres.
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(b) Yards with the widths set out below shall be provided and
maintained on the lot:
i) Front Yard -a minimum width of 4.5
metres and a maximum
width of 6.5 metres,
ii) Interior Side Yard -a minimum width of 7.5
metres,
iii) Exterior Side Yard -a minimum width of 4.5
metres and a maximum width
of 6.5 metres,
iv) Rear Yard -a minimum width of 7.5
metres,
v) Parking Space Location -notwithstanding Section
3.16 (e)(iv) of the aforesaid
By-law 84-63, parking
spaces shall not be located
in the required front yard or
in a required exterior side
yard.
(c) Part of the landscaped open space shall comprise areas having a
minimum depth of 1.5 metres from the front lot line and from each
of the exterior lot lines, except where a driveway or walkway is
located within 1.5 metres from the front lot line or an exterior lot
line in which case no landscaped open space is required to be
provided in such area.
(d) Buildings erected or used on a lot zoned R4-27 shall not exceed 6
stories above grade, provided that notwithstanding Section
15.4.27(b)(i) and (iii), the third and higher stores of the building
facing King Street are set back not less than 1.5 metres from the
upward projection of the wall of the second storey of the building
which faces a portion of a King Street East street line.
(2) Notwithstanding the provisions of Section 15.4.27(1), in a R4-27 zone all
uses that in fact were made of land, buildings or structures, and all
buildings or structures that in fact were constructed and existed on
October 19, 2003 and were not prohibited by the provisions of the
aforesaid By-law 84-63 on October 19, 2003, shall be deemed to be
permitted by the provisions of the aforesaid By-law 84-63, as amended by
this By-law.”
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(c) With respect to the technical amendments requested by the Municipality of
Clarington by deleting, replacing with or adding references to sections of
By-law 2003-153 set out below:
Section or Recital
Delete
Replace with or Add
Reference to
First Recital Report #PSD-115 Report #PSD-115-03
14.6.24(1) 3.15(e)iv) 3.16(e)(iv)
14.6.24(1)(d)(ii) 3.15(e)(iv) 3.16(e)(iv)
14.6.24(1)(f)(v) 3.15(e)(iv) 3.16(e)(iv)
14.6.24(1)(h)(v) 3.15(e)(iii) 3.16(e)(iii)
15.4.25(1) 3.15(e)(iii) 3.16(e)(iii)
15.4.25(1) 15.2 15.2(b), delete “and” before
15.2(g), and add after
15.2(g) “and 15.2(i)”
15.4.25(1)(b)(v) 3.15(3)(iv) 3.16(e)(iv)
15.4.26(1) 3.15(e)(iv) 3.16(e)(iv)
15.4.26(1) 15.2(e) 15.2(c), add 15.2(f) after
15.2(c) and add “and
15.2(i)” after 15.2(g)
15.4.26(1)(b)(v) 3.15(3)(iv) 3.16(e)(iv)
15.4.26(2)(e) C1-30 R4-26
16.5.3(1)(ii)(e) 16.5.3(1)(v)(a) 16.5.3(1)(iv)(a)
16.5.3(1)(ii)(h) 3.15(a) 3.16(a)
16.5.3(1)(v)(d) 3.15(e)(iii) 3.16(e)(iii)
16.5.3(1)(vi) 3.6(b) and 3.15(e)(iii) 3.7(b) and 3.16(e)(iii)
16.5.30(1)(ii)(h) 3.15(a) 3.16(a)
16.5.30(1)(v)(e) 3.15(e)(iii) 3.16(e)(iii)
16.5.30(1)(vi) 3.6(b) and 3.15(e)(iii), respectively 3.7(b) and 3.16(e)(iii)