The URL can be used to link to this page

Home My WebLink AboutPD-48-88 DN: 48-88 REPORT #2 J TOWN OF NEWCASTLE , ,1_5 REPORT File # Res. # C—Is By-Law # MEETING: COUNCIL DATE: February 22, 1988 REPORT #: PD-48-88 FILE #: DEV 87-52 SUBJECT: APPLICATION FOR REZONING - D. & M. PORTER PART LOT 23, CONCESSION 2, FORMER TWP. OF DARLINGTON OUR FILE: DEV 87-52 RECOMMENDATIONS: It is respectfully recommended to Council the following: 1. THAT Report PD-48-88 be received; and 2. THAT By-law 87-146 not be sent to the Ontario Municipal Board; and 3. THAT the Clerk be directed to approve By-law 87-146. BACKGROUND AND COMMENTS: As the Members of Council may recall, the subject application for rezoning was considered by the Town and approved by Council on September 14, 1987. During the Appeal Period, for the Zoning By-law, a letter was received from the Commissioner of Planning for the Regional Municipality of Durham indicating that the By-law did not conform with the policies of the Durham Regional official Plan. Accordingly, and as we have done in the past, given the Commissioner of Planning's responsibility for reviewing Zoning By-laws for conformity with official Plan policies, and in view of the fact that his statement of non-conformity was received during the Appeal Period, the Town considered it as an Appeal. At a meeting of Council held on December 14, 1987, it was resolved to request the Region of Durham to withdraw their objection; failing which, the matter was to be forwarded to the Ontario Municipal Board for a Hearing. 2 REPORT 00. : PD-48-88 PAGE 3 _______________________________________________________________________________ At the Durham Regional Planning Committee of February 2, 1988, the Planning Committee considered Commissioner's Report 88-37 (copy attached) , which basically stated that the Commissioner's statement of non-conformity was not to be construed as an objection to the Omoiug By-law. It is the Commissioner's position that the Zoning By-law is in effect and a formal withdrawal of the objection, is not ueoeoaocy. The Commissioner's Report was considered at the Regional Council meeting of February 10, 1988 at which time Council resolved to advise the Town that the Region did not support approval of 8y-law 87-I46. Had the Regional Planning Commissioner's Report been approved, it would have been within the Town Council's power to ignore the statement of non-conformity and, pursuant to Section 24M of the Planning Act, the By-law would be in effect . without reference to the Ontario Municipal Board. Present Council direction is that Staff send the matter to the Ontario Municipal Board, abooId the Region not wish to withdraw the appeal. Since the Region is not in support of the By-law, notwithstanding the Commissioner's position, Staff are seeking further direction. We note, however, that while it is our opinion that approval of By-law 87-146 contravenes Section 24(l) of the Planning Act, 1983, said Art provides that despite any other general or special Act where an official Plan is in effect, no public work shall be oo8ectaheu and, "except as provided in subsections (2) ' and (4) , no by-law shall be passed for any purpose that does not conform therewith" . Subsection (4) provides that, where a Zoning By-law is passed and where no appeal is taken, or where an appeal is taken and the appeal is dismissed, or the by-law is amended as directed on the appeal, the by-law shall conclusively be deemed to be in conformity with the official Plan. Since the Commissioner of Planning for the Region of Docbom is of the opinion that his statement of non-conformity is not to be construed an appeal, failing any other appeal, the by-law has taken effect and accordingly, the by-law is construed as being in conformity with the Official Plan. The Regional Council resolution was passed after the appeal period nouuot be considered to retroactively make the Commissioner's statement of nonconformity into an appeal. Particularly since the Commissioner is on record as stating it was not intended as an appeal. . . .3 | REPORT 00. : PD-48-88 PAGE 3 _______________________________________________________________________________ Since Council's direction is to forward the matter to the Ontario Municipal Board, abnuId the Region of Durham not withdraw the objection, we request that Council consider the Region's present position and, if in agreement with Staff's assessment, rescind the existing direction to Staff with respect to this application and not send By-law 87-I46 to the Ontario Municipal Board and further, that Council direct the Clerk to approve the By-law. Respectfully submitted, Recommended for presentation to the Committee �l =° ( - --- ----------- ------------------ T.T. Edwards, M.C.I.P. /� �I;W;;;ce E. Kutoetf �r��rot �a�' Chief Administrative officer TTE*jip *Attach. February 12, 1988 i 1770 Planning Department DURHAM Commissioner' s Report to Planning Committee Report No. 88-37 Date: February 2, 1988 SUBJECT ZONING BY-LAW 87-146 D. AND W. PORTER PROPOSED CLUSTER, PT. LOT 23, CONC. 2, FORMER DARLINGTON TOWN OF NEWCASTLE CORRESPONDENCE #88-10 DATED DECEMBER 15, 1987 FROM ROSEMARY RUTLEDGE, DEPUTY CLERK, TOWN OF NEWCASTLE. RECOMMENDATIONS i 1. THAT Commissioner' s Report No. 88-37 be received for information by Planning Committee and Regional Council ; and 2. THAT a copy of the report be forwarded to the Town of Newcastle. REPORT 1. Background The Region's Planning Department received for comment on June 22, 1987, an application for zoning by-law amendment submitted by Doug and Millie Porter. Regional Planning staff's initial comments were that the application did not conform because it proposed the identification of a new rural residential cluster on a Type "A".. arterial road. 1.2 Town of Newcastle Planning staff, referring to Town_approved criteria for rural clusters also commented negatively on the proposal . Notwithstanding, the Town of Newcastle Council passed Zoning By-law 87-146 and identified a cluster on the subject lands. 1.3 By-law 87-146 was monitored by the Region on October 8, 1987. In his administrative capacity, delegated by the Minister of Municipal Affairs and since confirmed by Regional Council , the Commissioner of Planning again advised the Town that the by-law did not conform to the Regional Official Plan. This statement of non-conformity was considered by the Town of Newcastle to be an appeal of By-law 87-146. 1.4 The Town of Newcastle Planning staff in a second report (PD-297-87) to Town Council advised Council that, in view of the Regional Commissioner of Planning' s statement of non-conformity, two options were available to Council as follows: Commissioner' s Report No. 88-37 Page 2 a) Repeal By-law 87-146; b) Submit the By-law to the Ontario Municipal Board with a request that a Hearing be convened. 1 .5 On December 14, 1987, the Council of the Town of Newcastle passed the following resolution: "That Report PD-297-87 be received; That the Regional Councuil of Durham be requested to formally withdraw their objection to By-law 87-146 and failing that; That the Town' s solicitor be requested to attend at an O.M.B. Hearing to defend the Town' s position. 2. Comments 2.1 The comments provided by the Commissioner with respect to official plan conformity are merely a statement of facts similar in kind to a professional planner giving planning evidence under oath before the Ontario Municipal Board. Therefore, the comments should not be construed zs an objection by the Town. 2.2 The Commissioner has never objected to the said By-law. Any objection or appeal must be properly dealt with by the Committee and so authorized by Council . This is not- the case here. Although the Commissioner did not recommend appeal of the By-law, he is required through procedure guidelines dictated by the Ministry of Municipal Affairs that as the Chief Planning Officer of the municipality, he shall provide a statement respecting official plan conformity or non-conformity on zoning by-laws passed by .the local municipality. Such statement reflects factual information and cannot be altered unless the official plan is amended. The intent of the statement of official plan conformity/non-conformity is to save harmless the Region in the event of any implication that may arisc as � . r�;ul� o'k a building pear,;i4 being -issued based on a zoning by=law that does .not conform to the official plan. 2.3 Since the comments provided by the Commissioner on By-law 87-146 is not an objection by the Region, therefore, the request by the Town to withdraw the objection is not applicable. Under the provisions of the Planning Act, where there is no appeal within the prescribed time limit, the by-law comes into effect. In the event the Town is not satisfied with the aforementioned explanation, it is suggested that they should send the by-law to the Ontario Municipal Board for clarification. Dr. M. Michael , M.C. I JP . Commissioner of Planning FW I J 7