HomeMy WebLinkAbout2004-221
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO 2004-221
being a by-law to approve, ratify and confirm Minutes of
Settlement between the Municipality of Clarington and the
owners of 258 King Street East, Bowmanville dated October
12,2004
WHEREAS by letter dated November 21, 2003 the owners of 258 King Street East,
Bowmanville, appealed the Municipality of Clarington's Official Plan Amendment No. 36
and Zoning By-law 2003-153 to the Ontario Municipal Board;
AND WHEREAS Minutes of Settlement between the Municipality and the owner have
been executed by Dennis Hefferon, Solicitor for the Municipality and Ira T. Kagan,
Solicitor for the owner of 258 King Street East;
AND WHEREAS the implementation of the Minutes of Settlement involves in part the
parties requesting the Ontario Municipal Board to modify and approve Official Plan
Amendment No. 36 and to enact certain amendments to Zoning By-law 2003-153,
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
enacts as follows:
1. The Municipality of Clarington hereby approves, ratifies and confirms Minutes of
Settlement dated October 12, 2004 between the Municipality and Clarington and
Hovane Simonian, Beatrice Simonian, Seta Simonian and Taline Simonian
respecting appeals of Official Plan Amendment No. 36 and Zoning By-law 2003-
153.
2. The Solicitor is authorized to request the Ontario Municipal Board to modify and
approve Amendment No. 36 to the Official Plan for the Municipality of Clarington
and to enact an amendment to Zoning By-law 2003-153 to implement the
Minutes of Settlement.
BY-LAW read a first time this
1 zlh day of October
2004
BY-LAW read a second time this
12th day of October
2004
BY-LAW read a third time and finally passed this
12th day of October
2004
_ ',_:;.r-
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OMB Case No. PL03126\l
ONTARIO MUNICIPAL BOARD
Hendry Investments Limited, the TOt Group Ltd. and the owner of258 King Slreet East have
appealed to the Onmrio Municipal Board under subsectioD 17(Z4) of the Planning Act, R.S_O_ 1990,
c.P.l3, as amcnd\ld from a clecision of the Municipality of Clarington to approve Proposed
Amendment No. 36 to the Official Plan for the Municipality of ClaringtoD to implement the
recommendations of the Bowmanville King Street East Corridor Study
OMB File No. 0030412
liendry hwestmeJ:lts Limited, the TDL Group Ltd, and the OWIlCf of 258 King Street El)s( have
appealed to the Ontario Municipal Board under subsection 34(9) of the Planning Act, R.S_O_ 1990,
c.P .13, as amended, against ZoniD.g By-law 2003.153 of the Municipality of Clarington
OMB File ;:\(0. R030286
MLNUTES OF SETILEMENT
WHEREAS:
A Hovane Simonian, Beatrice Simonian. Seta Simonian and Ta.lin! SimOnian (collectively
"Simollians") own the lands known for municipal purposes in 2004 as 258 King Street East,
Bowmanville;
B. By Notices of Appeal dated November 21.2003 ("Appeals") addressed to The Corporationof
the M\tllicipality of Clarington ("Clarington'') Simonian appealed Amendment No. 36 to
Clarington's Official Plan and Zoning By.law 2003.153 to the Ontario Municipal Board ("Board")
pursuant to the Planning Act, RS.O. 1990, c.P.13, as ameruled;
C, The Board has appointed OctQber 19, 2004 for the commencement of a hearing of
Simonians' appeals and certain other appeals respecting Official Plan Amendment No. 36 and By-
law 2003-153;
D. Simonians and Clarington wish to resolve their differences in order to avoid contesting them
at the hearing before the Board,
NOW THEREFORE in consideration of the mutual covenants contained herein, Simonian
and Clarington covenant and agree as follows:
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1.0 Resolution of AIlPea18
1.1 Sirnonians and ClarWgton agree that the appropriate resolution by the Board of the Appeals
would be for the Board to grant their requests set out below with respect to modifYing and
approving Official Piau AmCIldmCIlt No. 36 and amending and approving By-law 2003- ] 53.
1.2 Sitnonians and Clarington will tCIlder these Minutes to the Board, will present them in
positive terms, and wlll actively cooperate to promote aoceptmlce by the Board of these
Minutes the approval by the !'Ioard of Official PlilIl Amendment No. 36 as modified in
accordance with these Minutes, and 1h.c enactment by the Board Qf amendments to and
approval of By-law 2003.153 in accordance with these Minutes.
1.3 Simonians and Cla.rington will not call any evidence or adwnce any argumcmt inconsistent
with the Jetter and spirit ofthase Minutes, and Official Plan Amendmel.lt No. 36 and By-law
2003-153, as modified or amended in accordance with these Minutes.
1.4 Clarington will call such evidence and advance such lIl'gUments as are required to SI,lpport
these Minutes and Official Plan Amendment No. 36 and By-law 2003-153 as modified or
emended in accordance with these Minutes. Clarington will also oppose any evicknce and
arguments 8!1 may be presented by any other person llt the hearing before theBoarcl which are
inconsistent with the letter or spirit ofthese Minutes, and the modification or amendment to
Official Plan Amendmmt No. 36 and By-law 2003-153 which are provided for in these
Minutes.
1.5 The parties hereto agree that the commercial uses and size limitations set out in the proposed
amendments to Official Plan Amendment No. 36 and/or By-law 2003-153 contained in
Sections 2.1 and 3.1 of these Minutes, respectively, applicable to 258 King Street East were
arrived at in light of the current poor level of traffic flow opetations and safety of the
Galbraith courtlKing Street East intersection. In the event that ClaringtOll proceeds to
construct the pl!llUled intersection improvemcmts referred to by Member Jackson in Ontario
Municipal Board DecisioulOn.ler 0214 d.ated February 4, 2004, it is the intention of the
parties hereto that applications to emend Official Plan Amendment No. 36 and By-law 2003-
153 respecting 258 King Street East, Bowmanville to amend the commercialllSe and size
limitations will be considered by Clarington on their pla:oning merits including compatibility
with adjacent Tesidential uses and will not be rejected on the ground that the Simonians have
entered into these Minutes.
1.6 Neither Clarington nor Simonians will reqUellt the Board to make any order for the payment
of costs by either to the other of them.
2.0 Modification tn Official Plan Amendment No. 36
2.1 Simonians and Clarlngton will reqllesl that the Board m~ Section 8,4 of the lIowmanville
East Main Central Area Secondary Plan which is added by Section 12 of proposed
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Amendment No. 36 to ClariDgton's Official Plsn by adding a new C1WJSe 8.4 3 as follows:
"8.43. 11). addition to the uses pennitted by clause 1 of this Section, on the lands known
for JlIUIJicipal purposes in 2004 as 258 King Street East, a single building may be
constructed and ust:d with a mix of rcsidentialusBs and such commercial uses that
Council considers to be appropriately limited in scale WId type havio.g (egard to
the capacity, operations and safety of King Street East :md Galbraith Court and to
the compatibility with adjacent r~sidl:lltial uses provided that;
a) A minimum of 50 % of the gross floor area of the building is constnlcted and
used for residential purposes; and
b) Col1lI1lercial uses do not exceed a maximum of 400 square metres."
2.2 Simonians and ClllIington will reqlJe&t that (be Board approvepropossd Amendment No. 36
to the Clarington Official Plan Illl it applies to the lands known for municipal purposes in
2004 as 258 King Str~ East, Bowmauville after modifying it as provided in section 2.1 of
these Minutes.
3.0 Amendment olDv-law 2003-153
3.1 Simonians and CJ.e.riugton will request tbet the Board amend Seotion 14.6.24 which!s added
to Clarington's Zoning By-law No. 8~3, as amended, by section 4 ofBy-Jaw No. 2003-153:
(i) by deleting from subsection 14,6.24(1) the words lliJd figures:
''Notwithstanding SectiOlls 3.15(e)(iv), J4.1(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;
"NotwithstlliJding SectiODS 3.6, 3.13(a), 3.16(e), 3.17, 3.22, 14.1, 14.2, 143(c),
14.4(a), 14.4(b) and 14.4(0)";
(ii) by deleting paragraph 14,6,24(IXa) and by replaciDg it with the following;
"(a) Only an apllrtmcnt building, link townhouse dwellings, stacked townhouse
dwellings, street toMlh01llle dwellings, or a single mixed use building
containi.c.g a combination of residential uses and commercial IISes pennitled
by this Section, may be erected snd used on the lot.";
(m) by adding new paragraphs 14,6.24(I)(i) and G) lJB follows:
"(i) with respect to the single mixed use building that may be constnIcted or used
on the lot,
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(i) the pcnnitted commercial uses are the following:
a business, professional or administrative office
a dry cleaners distribution centre which does not contain more
than ZOO square metres of gross floor area
a laundry, coin operated, which does !lOt COIltalll lIIOI1;) than 200
square metres of gross floor area
a service shop, personal, which does DOt coIltain more than ZOO
square metres of gross 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 floor area
either a convenience store or a drugstore, neither of which may
contain more than 100 square met= of gross floor area
a video store which does not contain more than 100 square maim;
of grass floor area;
i11 the permitted residential uses are dwelliDgs which ha.ve individual or
a common entr:lnce from street level and the occupants of which have
equal rights to the use of all common halls and/or stairs and/or
elevatom and/or yards serving the reside:ntiHl Ilses within the
p=ittcd. mixed use building;
iii) the permitted mixed use building shall not contain an eating
establishment or a drive-through facility;
iv) the total amount oithe gross commercial floor area contained in the
peunitted mixed use bLlilding shall not exceed 400 sqlliU'e Jl),etres;
v) the permitted mixed use building shall contain an amO\lD.t of gross
residential floor area which is at least equal to 50% of the aggregate
of the gross residential floor area atld gross commercial floor area
contained in the building;
(j) also, with n!lSpect to the mixed UIl6 building that may be constructed or used
on the lot,
(i) a front yard and an exterior side yard shall be provided and
"''';'llained on tn", lot with a rninim"m width of 1.5 metres and a
maximum width of 2.0 metrell;
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(ii) tho building sha1.l be set bed a minimum distance of 10 IllClIl'eS from
the northerly lot line and a minimum distance of 5,0 metres from the
westerly lot line;
(Hi) the building shall not be less than 2 stories nor lllOre than 4 stories
above grade;
(iv) the length ofa business establishment f~ade 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 !Tontage;
(v) landscaped OpeJ:I space at least 3.0 metres wide shutting the northerly
IlIld the westerly limits of the lOt, respectively, comprising a total lITea
of at least 30% ofilie area ofthe lot, shall be provided and maintained
on the lot;
(vi) at the northwest CQmer 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 otber street line, each
such point being 5.0 metres measured along the street line from the
point ofinteuection of the street lines, no motor vehicle, as defined in
the l-lighway Tl'lIffic Act, as amended, shall be parked, no building or
stmcturewhich would obstrucllhe vision ofdrlvers of motor vehicles
shaH be erocted, and, no land shall bc used for the purposes of
growing shrubs or trees in exC\!SS of 0.75 me1rell in height.
(vii) one loading space with a minimum width of 4.0 metres :m4 iI
minimum length of 9.0 metres shall be provided and maintained {or
the permitted mixed use building on the lot;
(viii) 110twitlJstandingthe "Parking Space Reqwremexrt Table" contained in
Soction 3.16(01) oftbe: aforesaid By-law 84-63, minimum off-street
parkiDg spaces shall be provided and maintained on the lot as follQWS:
- for comme:rdal uses contained in the permitted mixed use:
building, 1 parking space for each 30 sQU1il<' metres of gross
commercial floor area,
for dwellings CQIltained in the permitted mixed use building,
parking spaces shall be provided at the following rates:
1 bedroom aparlment
2 bedroom aparlmcnt
a dwelling containing
3 Or mom bedrooms
- 1 spaoe per unit
- 1.25 spaces per unit
- 1.5 spaces per unit,
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pJ.mided that parking spaces shall not be located in a ~uired front
yard or in an exterior side YlI1'd.
(iv) by deleting Subsection 14.6.24(2) and by replacing it with the foUowing:
"(2) Notwithstanding any other provision oflhis By-law, no portion ofthe
lot Ilhall be used to provide motor vehicle a;)Qcss directly from it to
King Street East, nor to provide m.otor vehiele 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 llTId whieh
is nearer thlm 7,S 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 pwposes of this Section, the term
''business establishment" means a buildingwb.iell contains anyone or
more epmme.rcial uses permilled by this By-law;
"bll!liness establishment fll9ade" 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 filCes
KiDg Street East;
"drive-through facility" has the same mea.ui.ng that it is assigned by
Subsection 16.5.30(3);
"drug store" Weawl part of II pQUIritted mixed use building which 1S
used primarily for tbe combinlllion of storage and display for the
r~ail saie of non-prescription medicines, health and beauty aids,
p~rsonaJ hygien~ products, confectionary itCDIS, stationary, and a
prescriptioD, pharmacy;
"floor area" means the total bori~onlaJ _ of a floor or floors;
"general mereh9ndise store" means a retail commercial establishment
primarily l\CCommodating the sale of a variety of commodities which
iIlclude all or several representatives of the following categories of
merchllndisc: clothiD,g. hardWJ1I1:, borne :furnishings, household
3ppliances, sporting goods and toys, However, the telm "glll1eral
m,ercbandise store" does not include a convenience store., a drug store,
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and a specia1ity 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 st'Ore;
"gross commercial floor area" means the total of the floor area of
each floor of the permitted mixed use building measured fron) the
exterior face of the exterior walls, whether such floor ia above or
below finished grade, which is designed and/or used fOT permitted
commewial pwposes, but excluding any part of the building used for
mechanical equipment, parldng, loading, COI.l1UlOIl garbage stmage,
elevators, stairs or storage below finished grade. Where !l floor is
used for both residwtial arld commezci81 uses permitted by this By-
law, the gross commercial floor area shall be mea.<lurcd from the
exterior fuee of exterior walls arld/or the centre line ofintetior walls
separating the commercial uses from the residential uses;"
"greS!; residential floor area" means the total of the floor area of each
floor of the pennittEld mixed use building measw-ecl from the exterior
face of the elderiorwalls, excluding gm:a.ges, mccha1lical equipm.enl,
parlcing, loading, conunon garbage storage, elevators, stairs, cellars,
unfinished attics, and sunrooms which are not habitable year rOlllJd,
Where two or more dwellings s1=e a common wall. gross residential
floorareashall be measured from the centre line ofthc common wal L
Gross residential floor area shall also includ.e COIIlllIOIl indoor iU'C!JS
located within the buildwg. Where a floor, is used foT bot]) permitted
residential and permitted commercial uses, the gross residential floor
arCll shaU be messlIl'Cd from the e;xterior faCt: of exterior walls and/or
the centre line of interior W1ll1s seplll'llting the residential uses from
the commercialll!!es;
"stacked toWllhouse dwelling" means one of a group ofthree or more
building units sepataled verticaUy and/or horizontally: and
"video store" means a retail commercial establishment contained in
the pemrit(~ mixed use building which is used primarily for the sale
or rental ofvideo tapes or DVD discs to individual customel;S.
3.2 SimOniBnS and Clarington will request that tho Board approve proposed By-law 2003-153 as
it applies to lands known for municipal purposes in 2004 as 258 King Street East,
Bowmanville after amend.ing it as provided in Section 3.1 ofthe,se Minutes.
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4_0 Imnlementation
4.1 Ifthe Board approves these Minutes including the modification ofOfficial Plan Amelldment
No. 36 and the ameudmeuts to By-law 2003-153 conditional on Simoniens withdrawing the
Appeals, Simonians forthwith will deliver to the Board a letter executed by or on behalf of
Simonian:; in which theyunconditionallyv.ithdraw the Appeals subject to the modification
and amendm6l1ts bei1\g made by the Board.
DATED at Toronto this 12a1 day of October. 2004.
Per:
a
and
ROV ANE S
SIMONIAN.
TALINE S .
Per:
Dennis H
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DENNIS C. HEFFERON
BARRISTER AND SOLICITOR
r:.9 f" I"" l/. .51~ J
TEL' .16"~64.73SS
FAX, 416_664.7404
It.M...ll.l llH"FII'l':RON(j!Hl'..PFERONLAW.CA
FACSIMILE TRANSMITTAL SHEET
Patti L. Banie, Municipal Clerk
COMPANY:
Mw1.icipality of Cffirington
rA'X NUMBI~R:
1.905-623.6506
FROM:
Dennis Hcffcwn
TO:
DA'fb::
OCTOBER 12, 2004
TOT^L NO. 01' l'AGP.8 TN(.T.UnTNG COVER.:
9
K:C;
C::Ol'Tnn TO:
OP A 36 and Zoning By-law Appeals:
Owner. of 258 King Str.eet East,
Bowmanville
FiLl::: NO-
7666
o URGENT 0 cOR REvmw
o PLEASE COMMENT D PLEASE REPLY
o PLH:ASE RECYCLE
NOTES/COMMENTS:
Patti:
Attached please find fully executed Minutes of Settlement respectlng,:tm~~fP..)AAj1\:
King Street East, Bowmanville (Simonian family) dated October 12,(1/.!ffi4.... ".., ". .
Bt
iJRI'i;;-NA,t
Dennis
CUP~f,'S
-,.~.-
TJ-m; TRANSMTSSlON IS SOLTCTTOR-CJ.IF.NT PRMJ.F'"GRD !\ND CONTMNS CONrIDENn..\J... lNPORM1\'l'lON INJ'J-':''''''lD?D
ONLY FOR Tf-rr.-1; PER.."DN(S) NNvDID ABOVE. ANY cm-T'F.R DTSTRmrmON, COP"x1NG OR. DISCLOSURE, IS STRIC1'LY
PROT-ITBITED. IF yOU HAVE RECETVEO lHT:; mT~F.COPY TN ERROR l'LEASE NOTIrY US lMl'vtEDIA'l'HLY By 'rELEPHONF.
(COl.JJE<..-r'WNECBSSARY), so THAT"W'E MAY J\R.R1\NGE TI-ffi RElURN OF THF. ORTGTNAT. nANSMlSSION. 'l'HANK YOU,
ROYAL BANK PLAZA, SOUTH TOWER
200 BAY STREET, SUITE 2600, BOX 185
TORONTO, ONTARIO MSJ 2J4