Loading...
HomeMy WebLinkAboutPSD-034-04 . Cl!Jlmgron REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, March 8, 2004 1'.)1'.1- ~GPA-lI~-O~ Report #: PSD-034-04 File #: PLN 8.6.5 By-law #: Subject: OMB DECISION ON APPEALS BY THE TDL GROUP LTD. 258 King Street East, Bowmanville RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-034-04 be received for information. Submitted by: o . Crame, MCIP, R.P.P. Director of Planning Services Reviewed by: f ~ "O";OWu. Chief Administrative Officer CP/DJC/df 3 March 2004 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623- 3379 F (905)623-0830 I ,-- '. 00) REPORT NO.: PSD-034-04 PAGE 2 1.0 BACKGROUND 1.1 The TDL Group applied for site plan approval in April 2002 and removal of holding application in September 2002, for the property located on the north west corner of Kin~ Street East and Galbraith Court in Bowmanville. They proposed to construct a 130 m restaurant with a drive-through facility on the property. Appeals were filed to the OMB for failure by the Municipality to make a decision on these applications within 90 days. On January 6, 2003, Council adopted an Interim Control By-law for the lands known as the King Street East Corridor, which included the subject lands. The TDL group, Janet and John Rice, George Tzalis, the Bowmanville Mall and the Jean Coutu Groupe filed appeals to the Interim Control By-law. Janet and John Rice had also appealed an application for site plan approval for 209 and 215 King Street East, the Kentucky Fried Chicken and Pizza Hut property. Staff was able to negotiate a withdrawal of the appeals by the Bowmanville Mall and the Jean Coutu Groupe. 1.2 The Municipality's solicitor and the Director of Planning and Engineering have briefed Council on the OMB's decision. The purpose of this report is to summarize the decision for the public. 2.0 OMB HEARING AND DECISION 2.1 The procedural order for the hearing divided the hearing into two phases: Phase 1 dealing with the Interim Control By-law and Phase 2 dealing with the site plan and zoning appeals by the TDL Group. The OMB scheduled five days at the end of June to hear the appeal to Interim Control By-law, as well as the two appeals by the TDL Group Ltd. At the end of the five days of hearing all the evidence related to the Interim Control By-law appeal had not been heard. As a result the Board member determined an additional 10 days was needed to hear the remainder of the evidence and argument on the appeal to the Interim Control By-law and the two appeals by the TDL Group Ltd. The hearing was adjoumed until December 2, 2003, the first available date accommodating the schedules of the board member and the solicitors for the TDL and the Municipality. 2.2 While the Board hearing was adjourned the Municipality completed the King Street East Corridor Study. A report with the study findings was prepared for Council's consideration in September. In October, Council adopted an Official Plan Amendment and zoning by-law amendment, implementing the study recommendations related to land use and repealed the Interim Control By-law. Both amendments were appealed to the OMB by three different parties, including the TDL Group Ltd. 2.3 When the hearing resumed in December, George Tzalis withdrew his appeal as the Interim Control By-law had been repealed. The lawyer for the Municipality brought forward a motion requesting that the Phase 1 portion of the hearing be terminated. He argued that there was no point in continuing with the hearing on the appropriateness of the Interim Control By-law. The Municipality had completed the study intended during the Interim Control By-law, adopted Official Plan Amendment and Zoning By-law Amendment implementing the study recommendations related to land use and repealed the Interim Control By-law. Therefore, there was no longer a by-law in place for the OMB to amend, repeal or confirm. He further argued that the TDL applications should UC;-T REPORT NO.: PSD-034-04 PAGE 3 be reviewed in the context of the planning policies that the Municipality had adopted through Official Plan Amendment #36 and a related Zoning By-law Amendment. Therefore, the appeals by TDL on the site plan and removal of holding applications should be dismissed or consolidated with the appeal of Official Plan Amendment and the related zoning by-law amendment for the King Street East Corridor. 2.4 The Board after receiving both verbal and written argument provided a ruling on the motion. The Board member ruled that the appeal to the Interim Control By-law was "moot" and the Phase 1 portion of the hearing should not continue. However, the Board member determined that because the Official Plan Amendment and zoning by-law amendment have been appealed, and the Interim Control By-law was repealed, the planning regulations in place prior to January 6, 2003 are applicable for the review of the TDL applications. As a result the appeal by TDL on the site plan and removal of holding applications would proceed. The balance of the two weeks, as well as two additional days, were dedicated to planning, transportation and urban design evidence and legal argument with respect to why the application and removal of holding application should, or should not be approved. 2.5 In February the Board released its decision (Attachment 1). In summary the Board allowed the appeal on the site plan application, preferring the evidence of TDL on most, but not all, issues. However, on the removal of holding, the Board determined that there is need to have intersection improvements completed at Galbraith and King St. E. prior to allowing the development to proceed. Therefore the removal of Holding is premature. "However, due to the promising manner that intersection improvements were addressed by the Municipal Engineer, his engineering consultants. . . the Board will withhold its Order dismissing the Appeal for six months to allow, in the public interest, for the intersection improvements to be advanced in the good faith expressed to date." 3.0 FOLLOW-UP ON THE DECISION 3.1 Further to the Solicitor's report to Council on the decision, and Council's authorization, an application seeking leave to appeal certain aspects of the Board's decision has been filed with the Divisional Court on the grounds that the Ontario Municipal Board erred in law. The Municipality's Solicitor will continue to keep Council informed of ongoing matters related to the Board's decision. 3.2 Engineering Services is continuing to review opportunities for improvements to traffic safety, operations and capacity for the King Street East Corridor. 3.3 A pre-hearing conference on the appeals of Official Plan Amendment #36 and the related Zoning By-law to implement the King Street East Corridor is being scheduled for April. Attachments: Attachment 1 - O.M.B. Decision \) C) j ATTACHMENT 1 ISSUE DATE: February 4, 2004 DECISION/ORDER NO: !Ii PL021 066 PL020908 PL030235 0214 Ontario Ontario Municipal Board Commission des affaires municipales de l'Ontario Janet Rice and John Rice have referred to the Ontario Municipal Board under subsection 41 (12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, determination and settlement of details of a site plan for lands composed of 209 and 215 King Street East, in the Municipality of Clarington OMB File No. M020115 (PL021 066) TDL Group Ltd. has referred to the Ontario Municipal Board under subsection 41 (12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, determination and settlement of details of a site plan for lands identified as 258 King Street East, in the Municipality of Clarington O.M.B. File No. M020094 (PL020908) TDL Group Ltd. has appealed to the Ontario Municipal Board under subsections 36(3) 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 of the Municipality of Ciarington to remove the Holding (H) symbol from lands municipally known as 258 King Street East, in the Municipality of Clarington OMB File No. Z020171 (PL020908) Janet Rice and John Rice, TDL Group Ltd., 591617 Ontario Limited, Le Groupe Jean Coutu (PJC) Inc., and Bowmanville Mall have appealed to the Ontario Municipal Board under subsection 38(4) of the Planning Act, R.S.O. 1990, c. P.13, as amended, against Interim Control Zoning By-law 2003-01, in the Municipality of Clarington OMB File No. R030046 (PL030235) APPEARANCES: Parties Counsel*/Aaent TDL Group Ltd. S. Makuch' S. B. Leisk' Municipality of Clarington D. Hefferon' 591617 Ontario Limited George T. Zalis DECISION OF THE BOARD DELIVERED BY N.C. JACKSON U :JJ - 2 - PL021066 PL020908 PL030235 Before the Board in this Hearing are a number of Appeals to Clarington Interim Control By-law 2003-01 passed January 6, 2003 to be in effect for the period of one year. There have been a number of settlements with Appellants and other Appellants have chosen not to be present. Only TDL Group Ltd. (hereinafter referred to as TDL) is now present as an Appellant to the Interim Control By-law. Also part of this hearing and set for hearing by this panel following the Interim Control By-law first phase hearing is a hearing on TDL Appeals to determine a site plan and to amend Zoning By-law 84- 63 to remove the H Symbol for property at 258 King Street, in the Municipality of Clarington. The removal of the H is related. Both of these TDL Appeals on site Plan determination and the removal of the H were set for Hearing by this Board but were adjourned at the request of Clarington to be heard with the Interim Control By-law. That decision was contested by TDL, however at this point in time the site plan and related H-zoning removal are within a Procedural Order of this Board providing for hearing by this panel. A site plan control Appeal by Janet and John Rice for their property at 215 and 209 King Street was also consolidated with the Interim Control By- law Appeals. That appeal, at the request of counsel for the Appellants Rice, was set for a later date before this panel and then not proceeded with. The Rice site plan control Appeal has not been abandoned. The Appellants Rice and their counsel, are not present in this Interim Control By-law first phase hearing although they did appeal the Interim Control By-law. This Panel commenced hearing evidence during the week of June 23, 2003 on the TDL Appeal to Interim Control By-law. Evidence was not completed in that week and the Hearing was adjourned to December 2, 2003. That delay was in part due to commitments by Counsel for TDL. Counsel for Clarington sought a one-day adjournment to December 3, 2003 that was granted on Consent. On the resumption of this Hearing on December 3, 2003, counsel for Clarington informed the Board that Clarington Council had enacted new zoning, an Official Plan Amendment and repealed the Interim Control By-law 2003-01. The Repealing By-law 2003-173 was given three readings and passed on October 20,2003. The new zoning, By-law 2003-153 and Official Plan Amendment 36 were passed the same date, October c) U ( - 3- PL021 066 PL020908 PL030235 20,2003. To date, there have been four Appeals to the new Zoning and Official Plan Amendment. Three of the Appellants were not Appellants to the Interim Control By-law and not Parties in the present Hearing. Accordingly, following the discussion with counsel present, this Panel of the Board determined that the Appeals to the new Official Plan Amendment and Zoning would be heard by new panel of the Board following the Municipality applying to the Board for a Hearing date. The presently constituted panel then would not hear evidence on those new instruments. It was noted by counsel for the Municipality that included in the new instruments were changes in zoning and the Official Plan from commercial to residential for the TDL property at 258 King Street. On December 3 2003, The Municipality moved for the striking of issues 1 to 3 inclusive from the Issues List in the Procedural Order, dealing with TDL's appeal to the Interim Control By-law. The effect of that Motion is to terminate this Phase 1 Hearing. Mr. Hefferon for the Municipality asserts that the three issues associated with the repealed Interim Control By-law are now moot. He relies upon that doctrine as set out in Borowskiv. Canada, [1989] 1 S.C.R. 342. In that case, Mr. Justice Sopinka explains the mootness doctrine as follows: The doctrine of mootness is an aspect of a general policy or practice that a Court may decline to decide a case which raises a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the Parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. The essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the Parties so that no present live controversy exists which affects the rights of the Parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The Court then outlined the following three considerations: 1. The competence of the court is rooted in the adversary system. Are lj :,.) 0 - 4- PL021 066 PL020908 PL030235 there collateral consequences of the outcome that will provide the necessary adversarial context? 2. Judicial economy. 3. The need of the court to demonstrate an awareness of its proper law making function. Pronouncing in the absence of a dispute may be viewed as encroaching on the legislative branch. Moreover, Mr. Hefferon asserts that a repealing By-law does not require approval and is not before this Board. Re: Cadillac Development Corp. Ltd. et al and City of Toronto (1974) 1 OR (2d) 1 and Re: City of Hamilton Official Plan Amendment 12 and By-laws 84-64 and 88-86(1990) O.M.B.R.476. Mr. Hefferon then requests that the TDL Group Ltd. Site Plan and related H removal not be heard by this panel, but be heard by the new panel of the Board after the hearing of the new Official Plan and Zoning Amendment 2003-153. Mr. Makuch for TDL Group in his primary argument, does not dispute mootness but asks that the Board find the repeal date not be on October 20, 2003 but effective back to the day of passing - January 6, 2003. In the alternative, Mr. Makuch asks that this hearing continue based upon the collateral consequence that he has applied for a building permit which may be litigated. In that litigation the three issues sought to be struck, could, he asserts, if a finding is made in his favour, be relevant as to the timing of the permit application and its determination. The three issues relate to an attack on the Interim Control By-law respecting bad faith, lack of planning purpose and failure to exempt the TDL property from the By-law. Mr. Makuch requests the second phase hearing on his site plan appeal and removal of the H be heard by this panel based upon the doctrine of adjudication upon the planning instruments in effect at the time of the Application. Clergy Properties Ltd. v. City of Mississauga 34 O.M.B.R. 277 as confirmed in Greater Toronto Airports Authority v. Clergy Properties Ltd. (Div.Ct.) File No. 3/97. . ~,;" - 5- PL021066 PL020908 PL030235 The Board has carefully considered the oral and written legal argument. Both Parties agree the Board has jurisdiction to rule on this issue of mootness as inherent to the Board's jurisdiction to decide questions of planning and law under section 37 of the Ontario Municipal Board Act. Toronto (City) v. Goldlist Properties Inc.,[2003] O.J. No. 3931. The Board finds issues 1, 2, and 3 as related to the Interim Control By-law to be moot as a result of the repeal of that By-law. The Board is aware that there may be a dispute in respect of a building permit application made by TDL in 2002. The jurisdiction over any other possible dispute rests with the courts under the Building Code Act. The Board has listened carefully to arguments imputing bad faith as a result of the repeal. Those arguments, following the repeal, are for the Courts to determine. Although the Board was interested in the effect of the repeal, particularly under the enabling legislation in section 38, subsections 6 and 6.1 of the Planning Act, the Board cannot implement, following a legislative repeal, in the normal manner of a Board ordered repeal or amendment to the By-law, if it found in favour of TDL on those three issues. The request of TDL to order a repeal effective the date of enactment appears retroactive and more in the nature of a Declaration that is best left to the courts, following the repeal. The Repealing By-law is not before the Board nor does it require approval. It may be judicially interpreted. The Board understands that in repealing the Interim Control By-law on October 20, 2003, the Municipality can no longer claim the benefit of the deeming in section 38(6.1) as they couid have, if its Interim Control By-law had expired before the new zoning comes into effect. An Interim Control By-law comes into effect on the day it is passed whereas normal Zoning under section 34 of the Planning Act, if appealed, (inchoate), does not come into effect until the disposition of the Appeals by the Ontario Municipal Board. The deeming of section 38(6.1) of the Planning Act expanded the normal breathing space intended by the Legislature from the term of the Interim Control By-law to the time of disposition by the Board of the new section 34 Zoning By-law. \.... j ,-,' - 6- PL021 066 PL020908 PL030235 If the Municipality is successful in the new Appeal of the section 34 Zoning By- law, that By-law could date back in effectiveness to the date of its passage on October 20, 2003. If the Municipality is not successful, in all respects, the new section 34 By- law, depending on disposition, may not date back. Those considerations and inferences as to the intent in giving up the deemed extension to an interim control under section 38(6.1) at a point, after the Appellants case is in on the Interim Control By-law, and the Municipality has only commenced its case, are best left to the Courts. At this point in time, collateral consequences are indefinite and not of sufficient clarity to deter from the general principle of mootness. The Board finds for the Municipality on the first part of its Motion and orders issues 1, 2, 3, on the Issues List of the Procedural Order, struck. With regard to the second part of the motion, to adjourn the second phase (site plan control and deleting the H from the Zoning), of this Hearing to the new hearing on By-law 2003-153 and Official Plan Amendment 36 (not yet fixed as to time), the Board finds against the Municipality for the following reasons. Based upon the Clergy principle affirmed in the Courts aforementioned, the Appellant has the right to have the site plan control appeal and the second Appeal related to the lifting of the H in the Zoning heard under planning instruments in effect at the time of the Application. The Interim Control By-law is repealed. The new Zoning By-law 2003-153 is not in effect as it is under Appeal. If By-law 2003-53 withstands the appeals and comes into effect, its effective date would be the date of its passing. That is yet to be determined. The adjournment of the site plan and H-Zoning appeals to this time and to this panel was made in conjunction with the Interim Control By-law at the request of the Municipality. This panel is seized, and in accordance with the Procedural Order, those Appeals ought to be heard. This Hearing will continue to hear the TDL Appeals respecting site plan approval and the lifting of the H-Zoning under the Zoning and Official Plan in effect at the time of the Applications and now in effect following repeal of the Interim Control By- law. \~~.i I -7 - PL021 066 PL020908 PL030235 The Motion of Clarington is accordingly granted in part to strike issues 1 to 3 inclusive from the Issues List of the Procedural Order. The Motion is not granted in respect of the adjournment of the second phase of this Hearing to the new hearing for Official Plan Amendment 36 and Zoning By-law Amendment 2003-153. Second Phase of the Hearing-Site Plan Control Appeal and Appeal from the failure of Clarington to lift the H Holding Symbol from By-law 84-63 by Zoning Amendment. 258 King Street east is a vacant property in the King Street East Corridor of the Bomanville urban area, Municipality of Clarington. The property is 36.58 meters in width, 49 meters in depth, with a size of 1796 square meters. The site is leased and is under option by TDL. The location is at the northwest corner of King Street East and Galbraith Court, a residential cul-de-sac, serving approximately 92 homes. Across King Street, south of the subject property is the Bowmanville Mall with an exit -entrance from King Street East. To the east across Galbraith is the Strathaven Nursing Home with some 329 beds. To the west, on King Street East is the Henry Apartment Building with some 52 units. King Street East abutting the subject property is a five-lane arterial which changes in number of lanes west of Frank Street. King Street is recognized under the Clarington Official Plan as the primary commercial street of Bowmanville. 258 King Street East is designated in the Official Plan as Strip Commercial. The Plan requires the Main Central Area (the subject property is part of the Main Central Area of the Bowmanville Urban Area) to be developed in accordance with urban design objectives and to be a place of high quality urban environment for pedestrians. Proposed is one-storey restaurant of 130.9 square meters. Twenty- six seats are planned inside with a take-out stacking line with capacity for 15 cars. Parking spaces are provided for nine cars, none of which are located within the front yard facing King Street East. The front yard setback is 11 metres from the property line to building face. There is an additional seven-metre strip to the sidewalk reserved through an earlier vi :.- - 8 - PL021066 PL020908 PL030235 street widening. Vehicular access is planned to Galbraith Court with no vehicular access to King Street East. A loading area is planned to the rear-north area of the site. Pedestrian access is planned from King Street East. Current zoning in effect is Neighbourhood Commercial permitting an eating establishment - a take out. The primary use must be consumption of food off the premises. The Holding Symbol has the effect of restricting this and other uses while the Holding Symbol remains in effect. Following the filing of Applications for site plan Approval and Zoning Amendment to remove the H Symbol, the Municipality failed to approve of the site plan following discussions and circulation. The Application to remove the H was not circulated or processed and was not approved. Both Appeals, as noted above were consolidated and are heard together. The Board undertook a site visit with counsel for the Parties so as to best appreciate evidence brought forward in the Hearing. The Board hearing was hotly contested with each side calling expert planning witnesses, traffic design and engineering and urban design evidence, followed by informed, cogent, legal argument. Site Plan Control Reference to the Ontario Municipal Board Very early in this site plan control process, in writing, the Director of Engineering of the Municipality, with support from his consulting engineers on retainer, expressed to the TDL that TDL ought to look for another site and that he could assist. The reasons given amounted to concerns with the capacity of King Street East, the accident rate at the intersection of King Street East and Galbraith Court and that the site at 258 King Street East was too small. It should be noted that TDL had recently tried to locate at 219 King Street East. TDL had, following discussions with the Municipality, particularly over access, abandoned the application. In viva voce evidence by the Director of Engineering it was apparent to the Board that his concerns were heartfelt arising for the safety of users of municipal roads under his mandate. In his evidence he referred to other Tim Horton outlets in another municipality, where he lives that at peak times may backup, in the stacking lane, and onto the street access. There are admissions in the ~.....; ; -J -9- PL021 066 PL020908 PL030235 written materials filed that led planning and engineering staff of the Municipality to consider that they could not achieve their goals through the site plan control process and accordingly Clarington proceeded with the Interim Control By-law as noted above. Through a lengthy site plan control process for 258 King Street East, evidenced by correspondence filed with the Board, there is an effort by both sides to arrive at a mutually acceptable site plan. The use was recognized by the Municipality and constructive suggestions were advanced by the planner of the municipality. Those suggestions were mainly accepted by TDL: The Proposed building was downsized from 230 square meters to 130 square meters; Access originally proposed to King and Galbraith was restricted to Galbraith; . The location of the building was reconfigured, landscaping, design features and fencing were addressed; The motor vehicle stacking lane was increased to 15 spaces with capacity for over-storage of three more spaces on site, Nine on-site parking spaces were provided in accordance with the Zoning By-law, The number of eat in chairs was reduced to 24, pedestrian access was provided from King Street East. Technical agencies and the Region on circulation raised no objection. From this process and the viva voce planning evidence at the hearing, the Board concludes the planning process was proceeding to the determination of a site plan, if off-site traffic engineering for the intersection could be resolved. 1 i ( -T U. - 10- PL021066 PL020908 PL030235 Traffic There was however a concern with intersection traffic that was first expressed by the Director of Engineering. That resulted in TDL being requested to file an Engineering Report on the accident history at King Street East IGalbraith intersection. That was filed and the consultant concluded that from the accident history, the problem movement was a northbound left hand movement at the Bowmanville Mall access. That movement, the engineering consultant concluded was not relevant to the proposed development. TDL was then requested by the Engineering consultant for the Municipality, to undertake a trip generation and trip distribution analysis. That second report was prepared by Engineers for TDL and filed with the Municipality. That report based its findings on ITE Trip Generation Manual and trip generations of Tim Horton estabiishments in the Greater Toronto Area. It notes from Traffic engineering literature based upon surveys that 70% of traffic generated by fast food facilities is impulse traffic. Morning peak, in and out volume was estimated at 85 trips per hour. Consulting engineers for the Municipality could, after deliberations with engineers for TDL, not accept trip generation figures proposed. Following disagreement on traffic engineering trip generation and then concern respecting level of service operating levels at the intersection of King Street East and Galbraith Court, the proposed site plan was not approved, a reference was made to this Board to determine the site plan and Interim Control was passed by the Municipality. The Municipality sought through the Board process, disclosure of data of similar sized Tim Horton establishments (Model 1400). Restaurants at 3316 Lake Shore Boulevard West, Toronto, 426 Kipling Avenue, Toronto, 380 Weston Road, Toronto were surveyed as were larger restaurants at Highway 2 and Centrefield Drive and Highway 2 and Townline Road, the latter two in Clarington. The municipal consulting engineers carried out fieid research at the above five locations regarding parking and traffic characteristics. Conclusions reached include: 1. A higher trip generation up to 350 per peak hour with resultant high turning movement volumes on the public road system. Trip Generation rates vary with floor area and the volume of passing traffic. At the two \..) j ..; - 11 - PL021066 PL020908 PL030235 Clarington sites, trip generation has exceeded earlier estimates. 2. Parking and stacking numbers varied by site but 15 spaces for stacking "may be sufficient," although the conclusion emphasizes the difficulty in being definitive. 3. Parking at the three 1,400 restaurants was found to be inadequate and on the subject site the nine proposed parking spots were found to be insufficient, such that there could be adverse impacts on the residential neighbourhood. 4. The conclusion reached regarding the proposed use is that with higher turning movement vehicular traffic, the existing safety issue in the intersection would be exacerbated. 5. Improvements recommended include restricting the Bowmanville Mall Access opposite Galbraith Court to right turns only and establishing a new signalized access for the Bowmanville Mall to the east of Galbraith Court and opposite the Strathaven Lifecare Centre. The Director of Engineering clarified that meetings had been held with the Mall and Strathaven representatives with some agreement. Public information meetings were scheduled for early January 2004, to further the intersection change process. This appears to the Board to be a proactive process for which the Municipality ought to be acknowledged. The importance of the intersection change is clear from the evidence of the municipal consulting engineer that this existing intersection must remain unsignalized although meeting traffic warrants, due to the close proximity of an existing signalized intersection to the west. The possibility of confusing the motorist is called "conspicuity". The municipal consulting engineer's evidence addressed how the intersection was now operating and how it could operate with projected traffic for TDL proposal. The conclusions reached were that southbound left turn would be at level of service F during mid-afternoon Saturday, peaktime for both TDL operation and for the road (the evidence of TDL is that the peaks do not occur at the same time on Saturday). The same Level ;' ! \..)' \.-J - 12 - PL021066 PL020908 PL030235 of Service F is evident in the municipal consulting engineering evidence for existing northbound left hand turns from the Bowmanville Mall at peaks. The consulting engineer retained by TDL for this hearing, did not present the same type of trip generation actual data nor a formal traffic impact assessment for the proposed TDL restaurant. Rather he undertook a gap study and then mixed that data with market and other data from other TDL restaurants. His estimated trip generation was at peak 200 in and outs. Although the evidence of the consulting traffic engineer for the Municipality was more direct and "by the book" - the Highway Capacity Manual, the Board found the evidence of the TDL consulting engineer helpful as well. The timing of gaps is referenced in the Traffic Manual for unsignalized intersections - the American Highway Capacity Manual 2000. This Manual provides under Performance Measures that the computer model is based upon a critical gap size. The Manual references the assistance of field data and the importance of not focusing on a single measure of effectiveness for the worst movement only. The TDL traffic consultant showed a high degree of familiarity with other TDL operations, setting the context of other requirements and site plans. For instance, the goal of serving a customer every 25 seconds in the context of efficiency, staffing and location was helpful. The TDL consulting traffic witness presented a video taken on the second Saturday before Christmas, one of the busiest days of the year for the Bowmanville Mall. The timing as with other similar evidence was disputed as to road peak and TDL peak. The Board was satisfied the video made, Exhibit 30, was proper reply evidence depicting significant gaps across the King Street East - Galbraith Court intersection. The TDL witness suggested other traffic considerations such as two lanes south on Galbraith on existing pavement, adjusting the stop line and concurring in improvements to the Mall entrance. He suggested this access to the Bowmanville Mall backed. up due to a poorly designed site plan for exiting. The Municipal consulting engineer also queried site circulation based upon his surveys. In his conclusion, after reviewing an additional TDL store in Cobourg near the 401 with signage on the Highway, he stated, "If you build it, they will come". This u f I - 13 - PL021066 PL020908 PL030235 statement the Board disregards as an admission of the difficulty of arriving at any meaningful standard. Two residents residing on Galbraith Court testified of their concerns with safety arising from accident reports. The Board in weighing the traffic evidence finds that from the cogency of the Municipal Traffic evidence, when combined with the history of 27 accidents in the King Street East - Galbraith Court intersection in the last five years, that there is a need to address intersection improvements prior to this project proceeding. The accidents and evidence adopted by the Board relates primarily to turns in and out of the Bowmanville Mall. The approval of a site plan is however not the proper tool to address off-site improvements. Site plan approval under section 41 of the Planning Act is site oriented. First City Shopping Centre Group v. Gloucester, [1990] O.M.B.D. No. 2035 at 7 and Polla v. Toronto (City) Chief Building Official, [2000] O.J. No. 4399. Counsel for Clarington, concedes this point, but argues the state of the intersection is relevant to the other Appeal respecting the lifting of the H Symbol. The Board, in the site plan Appeal must find that off-site intersection considerations are beyond its jurisdiction to consider under section 41 of the Planning Act. The consideration of same in the other Appeal will follow. Parking on site can be a site plan control consideration if not legislated in the Zoning By-law. In this case nine on site parking spaces are provided on site. In February of 2000 a Joint Municipal Study of Fast Food Restaurant, Drive-Thru and Parking was completed. Clarington participated in the study. Although the study was not formally adopted, evidence in this Hearing indicates it has been applied. Although that study would require 19 parking spots on this site, the Study states, "the results of the survey of parking utilization suggest that a reduced parking ratio for fast food drive- thru restaurants is justified in comparison to standards for convenience restaurants without drive-thru lanes". This principle is not disputed by the traffic engineers testifying I~.' i U - 14 - PL021 066 PL020908 PL030235 in this hearing. That study could require 12 spaces in the drive-thru. A 15-space drive- thru with capacity for three more spaces on site is provided. The Board finds from the planning and traffic evidence of TDL that the combination of nine parking and 15 spots in the drive thru are reasonable. Since nine spaces are in the Zoning By-law of Clarington for on site parking, the Board is, in any event, not in a position to impose more. Martins v. Ottawa (City), [1996] O.M.B.D. No. 320 and Kally's Restaurant Inc. v. Scarborough (City), [1991] O.M.B.D. NO.1248, reversed on other grounds, 12 O.R. (3d) 3129 (Div. Ct.). The drive-thru itself provides 15 spaces, with capacity for 18. The drive-thru was crucial to the first expression of concern in the site plan process. This stacking lane is not regulated under the current zoning By-law and is subject to regulation under site plan control. The evidence of TDL that the drive-thru capacity is generous, relative to other sites with problems, is truly a distinguishing factor. This conclusion is admitted by the Municipal traffic consultant after an in-depth survey and study of other comparable sized operations. On site circulation was questioned. The evidence asserted by the TDL witnesses is that pedestrian access crossing the stacking lane is safer than through a parking lot. The loading space, also regulated by the Zoning By-law, provides for forward entry and backup into the 15th space at the end of stacking line. Although the size of the delivery truck was questioned, it was reasonably answered that different sized trucks are used relative to the size of space on the different sites. On-site circulation is found to be reasonably provided for on the site plan. Urban Design The Official Plan of the Municipality requires the consideration of urban design principles including: 1. Street front oriented; \..) / - 15- PL021 066 PL020908 PL030235 2. Ease of access and safety; 3. Parking to be to the side and rear; 4. Land use compatibility through appropriate siting; 5. Design and landscaping; 6. Existing trees are to be preserved where possible; 7. Pedestrian areas; 8. Building siting to provide a continuous edge to the street, and 9. Consistency of setback with the established building line of abutting properties. Municipal evidence was entered through a staff planner and a consulting urban designer. They asked the Board to consider the maintenance of a number of mature trees at the northwest corner of the site. The building they suggested should be enlarged and reoriented, so that the larger side view would face King Street. They requested that the pitched roof on the King Street face functionally extend around the building to integrate with residential uses on Galbraith Court. With respect to buffering, it was requested the Board consider a nine metre setback to the south of the property to be sensitive to the proximity of the stacking lane, with impact of noise, light and emissions on the residential home to the south. They suggested a 1.8 metre buffer to the west to buffer the five-storey apartment building. Planning evidence and urban design evidence from TDL suggested that in the site plan process the building had, in redesign, become street oriented. It had been moved but now was setback in accordance with the Strathhaven setback and minimum front yard zoning setback. That front zoning setback would have to be amended if the building was to be brought to street edge. Parking is situate to the rear and west side of the proposed building and no parking is provided either in the front yard abutting King Street or the yard abutting Galbraith Court. The evidence of TDL through its urban U 'J 0 - 16 - PL021 066 PL020908 PL030235 designer, an architect previously employed administering site plan approval for the City of Toronto, is that this proposal will enhance the street pedestrian realm with the building being brought closer to the street yet conforming with other policies respecting setback of other buildings. The evidence of the TDL witnesses confirmed compliance with the Municipality's landscape Design Guidelines whereas the municipal consulting urban designer was not familiar with those Municipal Guidelines set out in Exhibit 19. The same municipal witness was not familiar with the detail of Ministry of the Environment Guidelines on Noise to substantiate his concerns raised on noise. The Board will not impose greater setback and buffering than is contained in the Municipalities Zoning and Landscape Guidelines. The three metre setback to the north together with an existing fence were recognized by the municipal planner in the earlier detailed site plan control process as was the fence proposed in accordance with the Zoning on the westerly lot line. Significant landscaping on the separate landscaping plan, a part of the site plan package, was reviewed earlier with the Municipality and seemed acceptable at that time. Credibility is diminished when there is not consistency with the earlier municipally administered site plan process. The voice speaker box has been located toward King Street where the proposed building will act as a buffer for the residence to the north and west. The Board finds general conformity of the proposed site plan with the Official Plan and in particular, with the urban design policies set out therein and in the Secondary Plan. The Board will however require that the roofing design, as depicted facing King Street, be consistent on all sides. In addition, the height of the fence to the west is to be reduced to .75 meters for a distance of three metres as specified in section 3.1 (I)(V) of the Zoning By-law. Thirdly, TDL is required to submit a lighting plan showing the manner in which light will be deflected away from the residential neighbours. Fourthly, the pylon sign will be relocated and vegetation removed from the southwest corner in accordance with section 3.21 of the Zoning By-law. I~,J .J I - 17 - PL021066 PL020908 PL030235 The Board was urged by the Municipal counsel to not approve of the site plan. Counsel argued that the deletion of the word "settle" in section 41 ,subsection12.1 of the Planning Act, as it now reads through an amendment in 2002 strengthened the Board's position to not approve of the site plan. The Board, on consideration, believes the continuation of the word "determine" with the word "referral" in section 41 leaves the Board with a similar jurisdiction as before the amendment. That amendment was made in an omnibus bill for efficiency dealing with repetition in the legislation. The Board does agree with Municipal Counsel that even in the absence of direct language in section 41 of the Planning Act to allow or dismiss the Appeal, the Board could, where evidence warranted, refuse to approve of the Site Plan. In this case, the evidence does not so warrant and the Board chooses to determine the site plan as set out above. The Board requires the Plan be changed to reflect the above and will remain seized for implementation in the form of amended plans and an agreement in the form of Exhibit 17. Appeal to remove the H Holding Symbol This appeal was not processed by the Municipality pending the resolution of the site plan. There was limited evidence and argument on this Appeal in this Hearing. There is no argument as to invalidity of the use of the Holding mechanism under the enabling authority section 36 of the Planning Act. Section 36(2) of the Planning Act requires that the Official Plan contain provisions relating to the use of the holding symbol. The main section 36(1) stipulates that the Council may specify the use to which the lands may be put in the future when the Holding Symbol is removed by amendment to the By-law. Section 36(4) provides for an Appeal to the Board if Council refuses or neglects to make a decision on an application to amend the By-law. The Board's authority is to hear the Appeal and dismiss or amend the By-law to remove the holding symbol. I..> ..-.J ;_ - 18 - PL021066 PL020908 PL030235 The Board is urged by the Municipality to dismiss the Appeal since it is argued the amending By-law is not in accordance with the Official Plan and would then transgress section 24 of the Planning Act. The Official Plan provides inter alia, in section 23.4.3, Holding provisions may be used to ensure, that prior to development the following matters have been addressed and approved to the satisfaction of the Municipality: A) services and municipal works; G) any other requirements as may be deemed necessary by Council including the implementation of the policies of this Plan. The Board finds conformity with G. The Zoning By-law provides that with the H, the use of lands shall be limited to residential uses, conservation, forestry and farm uses exclusive of livestock operation. The Zoning By-law states the Holding Symbol may be removed upon Council being satisfied that the uses to be permitted will be adequately serviced; the lands to be used have adequate access. The Municipality argues that "services and municipal works" could include the intersection transportation services. TDL relies upon evidence that the H was passed in conjunction with the subdivision creating the lot and other residential lots on Galbraith Court in 1990. A sentence in the Planning Report referenced the lifting of the H when the Subdivision Agreement was registered. The Board finds, as set out in the Site Plan Appeal, that there is a need to address intersection improvements prior to this project proceeding. Those improvements can be interpreted as municipal works or services and are related directly to the usability of the subject property. Intersection improvements planned by the Municipality in moving the mall entranceway and restricting the current Mall access, if implemented, will satisfy this Official Plan requirement. The Board has carefully ~ . oJ _, , - 19 - PL021066 PL020908 PL030235 weighed all Planning and Engineering evidence. The Board notes that the Official Plan restricts access to King Street and intends the use of locai streets such as Galbraith Court where possible. The Official Plan also prohibits drive-thrus in another down town designation, the Street Related Commercial Area. The designation of Strip Commercial on the subject property does not prohibit drive-thrus. The Official Plan encourages the improvement of traffic operations on King Street. Since the intersection improvement has not been effected and will involve the final approval of third parties, the Board concludes that, at this moment the H-zoning Appeal must be dismissed as premature. However, due to the promising manner that intersection improvements were addressed by the Municipal Engineer, his engineering consultants and the past and present consulting engineers for TDL, the Board will withhoid its Order dismissing the Appeal for six months to allow, in the public interest, for the intersection improvements to be advanced in the good faith expressed to date. The Board may be spoken to by both legal counsel. If the intersection improvements planned for, proceed, the Board will hear evidence in a continuation. In the event that the improvements do not proceed, the Board's Order will issue dismissing the H Symbol zoning amendment. Despite the Board having found favour with the site plan subject to certain amendments because the site plan requires that the H be lifted, the Board will dismiss the site plan appeal if the intersection improvements do not proceed. TDL has raised the issue of costs. If costs are pursued, Clarington will be served in accordance with the Boards Rules. "N.C. Jackson" N.C. JACKSON MEMBER i~! ',j -T