HomeMy WebLinkAboutPSD-016-03
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REPORT
PLANNING SERVICES
Meeting:' GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Report#: PSD-016-03
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File#: yJ r
c;lll-ot('I-o3
By-law #:
Date: Monday February 3, 2003
Subject:
APPEALS BY THE TOL GROUP L TO.
COURTICE AND BOWMANVILLE
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recornmend to Council the following:
1, THAT Report PSD-016-03 be received for information,
Submitted by:
Dav J, rome, MCIP, R.P,P,
Director of Planning Services
Reviewed bYO ~--.J~~
Franklin Wu,
Chief Administrative Officer
DJC:sn
January 30, 2003
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-0830
, 605
..... -r.
REPORT NO.: PsD-016-03
PAGE 2
Hearings before the Ontario Municipal Board (OMB) were conducted with respect to two
development projects proposed by the TDL Group Ltd (TDL), The purpose of this report is to
provide an overview to Council on the results of those hearings.
1. Site at 1502 Highway 2 East, Courtice
TDL appealed two applications with respect to their proposal for a 282 sq, m, (3,030 sq, ft.)
drive-through restaurant at the northeast comer of Centerfield Drive and Highway 2, The first
appeal was based on Council's failure to deal with TDL's zoning application within the required
timeframe required by the Planning Act. The second appeal was for the approval of the site
plan and the determination of any conditions that might be attached thereto. The hearing was
held January 13th and 15th, 2003,
The rezoning application was considered by Council on September 9th, 2002 and the matter
was referred back to staff to review traffic issues. Council also required, as part of the
resolution, that TDL be one hundred percent responsible for the installation of traffic signals at
the intersection of Centerfield Drive and Highway 2. After the appeals were launched, staff
and the Municipality's solicitor reported to Council and recommended that a settlement be
negotiated with TDL to accomplish the Municipality's primary objectives.
The principal elements of the settlement were agreed to on January 10th however there were
many details with respect to the site plan and drawings that continued to be negotiated as the
Minutes of Settlement were being drawn up. On Monday, January 13th, the first day of the
hearing, the Board was requested by both parties to 'stand down" in order to allow for the
completion of the negotiations and revisions to the drawings. On Wednesday, January 15th the
Minutes of Settlement was presented to the Board,
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REPORT NO.: PsO-016-03
PAGE 3
The settlement contained the following main elements:
1, TDL will pay to the Municipality of Clarington $25,000,00 for the purpose of defraying
the cost to the Region of Durham of installing traffic signals at the intersection of
Centerfield Drive and Highway 2.
2, The Zoning By-law amendment is to be approved by the Board substantially as
presented to Council on September 9, 2002. One change was made with respect to
the performance standard for the drive-through. The Zoning By-law now states that
"any drive-through facility shall be located a minimum of 17m from any public street".
This still maintains the intent that the drive-through is located behind the street fayade of
the restaurant.
3. The site plan now requires a cottage-style roof which completely encloses the rooftop
mechanicals and provides a residential character to the building.
4, Since the Region of Durham no longer required a 5m road widening, the restaurant was
relocated 6m closer to the front of the property, having a 4m setback from the street.
5. Landscaping was augmented through:
a, The planting of Bridalwreath Spirea to screen the south limit of the parking area,
b, A landscape feature at the corner of Centerfield Drive and Highway 2 was added
with additional shrubbery and the relocation of plant material from the parking
islands.
c, A privacy fence along the northeast boundary of the property.
A copy of the revised landscape plan is attached (Attachment 1),
6. Intemal traffic circulation was improved with 15 dedicated queuing spaces and
additional spaces on the entrance driveway.
A Site Plan Agreement was prepared and presented to the Board as a means of implementing
the condition of approval requiring the applicant to enter into an agreement with the
Municipality,
The Director of Planning Services presented evidence in support of the approval of the Minutes
of Settlement as being good planning and in the public interest.
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REPORT NO.: PsD-016-03
PAGE 4
Ms. Ann Dubray, of 7 Valleycrest Drive, and Ms. Marie Racine, of 11 Centerfield Drive, were
the only neighbourhood residents that attended the hearing. Ms. Dubray raised many
concerns with respect to traffic impacts on the neighbourhood, safety for children attending
nearby schools and visual, noise and air pollution impacts of the proposed development. She
also was concerned that public notice was not distributed to a wide enough area for potentially
impacted residents, Ms. Racine was concerned with respect to the proximity of the Tim
Hortons entrance to her property, and privacy issues caused by the destruction of mature trees
that would increase the visibility of the restaurant.
The issues raised by the neighbourhood residents were addressed in testimony by the Director
of Planning Services, the Director of Engineering Services and the applicant's planning and
engineering witnesses.
The Board approved the Minutes of Settlement as the basis of the resolution of TDL's appeals,
Attachment 2 is a copy of the Board's decision.
2. Site at 258 King Street East, Bowmanville
TDL appealed the site plan and the zoning by-law to lift the holding symbol from the zoning for
the lands located on the northwest corner of Galbraith Drive and King Street East in
Bowmanville. A hearing was scheduled on the site plan appeal for January 21st to the 23"\
2003,
The Municipality's solicitor prepared a motion to adjourn the hearing due to the Interim Control
By-law passed by the Municipality with respect to the King Street East Corridor. The motion
was supported by an affidavit from the Director of Planning Services which noted the need for
a comprehensive study of land use, traffic and urban design issues for the King Street East
Corridor, the need to maintain a healthy and vibrant downtown and to ensure that the
transportation network can service the future growth of Bowmanville, The solicitor argued that
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REPORT NO.: PsD-016-03
PAGE 5
the Municipality needed the "breathing space" afforded by an interim control by-law for the
area. He contended that the Municipality needs to protect the public interest by undertaking
the study authorized by Council. Accordingly he submitted that the hearing on TDL appeals
should be adjourned until the planning studies were completed or until the Interim Control By-
law was successfully struck down through an appeal.
The solicitor for TDL argued in response to the Municipality's motion for adjournment that the
Interim Control By-law was not enacted for a proper planning purpose, specifically that the
study does not address proper traffic issues, proper urban design issues, that the issue of
drive-throughs has already been comprehensively studied and that the Interim Control By-law
in contrary to the Official Plan. Moreover TDL argued that the by-law was enacted for an
improper purpose, to frustrate the development of the Tim Hortons restaurant. TDL argued
that the OMB had the authority to hear and determine the validity of the By-law, incidental to
the exercise of its powers, without an appeal of the Interim Control By-law in front of the Board.
The Municipality's solicitor reported that TDL sought to have the Board make a decision which
only the Court could make. Consequently the Board did not have jurisdiction to question the
Interim Control By-law.
In an oral decision, the Board indicated that it could only rule on the validity of the By-law with
a full hearing on the merits of the By-law in the context of an appeal by TDL. Since there had
been no appeal of the Interim Control By-law by TDL, the Board concluded that it did not have
jurisdiction to make the determination that TDL sought. The Municipality's motion to adjourn
the hearing was granted,
The appeal period for the Interim Control By-law is sixty (60) days from the date of passing and
only after that time when all potential appeals have been filed, can the Board schedule a
hearing on the Interim Control By-law,
Attachments:
Attachment 1- Revised Landscape Plan
Attachment 2 - OMB Decision
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Ontario
Ontario Municipal Board
Commission des affaires municipales de 1'0ntario
ATTACHMENT 2
'03JAN27 PM 4:33:47
, '
"
I' ISSUE DATE:
Jan. 24,2003
DECISION/ORDER NO:
PL020838
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 composed of 1502 King Street East, in the Municipality of Clarington
OMB File No. M020084
TDL Group Ltd.has appealed to the Ontario Municipal Board under subsection 34(11) 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 Clarington to rezone a
property known as 1502 King Street East from Special Purpose Commercial Exception (CS-1)
to Neighbourhood Commercial Exception (C2-7) to permit the development of a restaurant (Tim
Horton) OMB File No, Z020119
APPEARANCES:
Parties
Counsel
Municipality of Clarington
D. Hefferon
TDL Group Ltd.
S. Makuch
MEMORANDUM OF ORAL DECISION WITH WRITTEN REASONS
DELIVERED BY M. F. V. EGER ON JANUARY 13. 2003
The TDL Group Ltd. is proposing a new Tim Horton's on a vacant lot at the
corner of Highway 2 and Centerfield Drive in Clarington, In order to facilitate this
development, an amendment to the existing commercial zoning is required as well as
site plan approval. The matters were before the Board because the Municipality had
neglected to deal with the applications within the prescribed timeframe. At the
commencement of the hearing, the parties advised that they were working towards a
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settlement. Ultimately, the parties filed with the Board Minutes of Settlement, including uJ
an amendment to ZBL 84-63 of the Municipality of Clarington (Exhibit 6, Schedule A),
Site Plans (Exhibits 7a to I, inclusive) and proposed Site Plan Conditions (Exhibit 6,
Sohed"'. B). 8mlbl' 8 I, 'h. SO. P'," Ag,..m.o' oa' ye' .,.o"*'/ ~ _.
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611
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PL020838
The Board heard evidence in support of the proposed zoning by-law and site
plan from the municipality's Director of Planning Services. In addition, the municipality's
Director of Engineering Services and the proponent's planner/architect and traffic
engineer gave evidence in response to specific concems raised by the residents.
Two residents attended the hearing. Mrs, Racine's home is on Centerfield Drive
immediately to the north of the subject site. Mrs. Durbray resides on Valleycrest Drive
and her property backs onto the subject lands.
The site is 0.53 hectares (1.32 acres) in size and is located on the north east
corner of Highway 2 and Centerfield Drive. It is currently vacant but the Oshawa Motor
Court Hotel was located there some 10 years ago. On the north west corner is the
Westcastle Plaza, a two storey building with ground floor retail and second floor offices.
The lands to the north are low density residential. The eastern boundary of the site
borders the Farewell Creek valley,
The subject lands and the Westcastle Plaza a~e designated Neighbourhood
Commercial Area. The lands on the south side of Highway 2 are currently vacant but
are designated High Density Commercial. The plan supports transit supportive
development and requires commercial development to be designed to be compatible
with adjacent residential uses through building siting and landscape design, interior
refuse collection and screening of loading areas.
The subject lands are currently zoned C5-1 Special purpose Commercial
Exception and permit a motel or motor hotel. The proposed zoning is Neighbourhood
Commercial, to be consistent with the Official Plan. Take-out eating establishments are
permitted in this zone requiring a site-specific exception to permit an eating
establishment. The planning evidence is that the proposed zoning conforms to the
existing Official Plan and that the proposed site plans and conditions are sufficient to
protect the public interest and are consistent with principles of good planning.
Mrs, Racine's home is at a higher elevation than the subject lands. Because of
the higher elevation of her lands, she can see into the subject site from certain windows
in her home and from her rear deck, She is also concerned with the view customers at
Tim Horton's will have of her home and deck. A six-foot high wood board fence is
located on the property line between her lands and the subject lands. There are also
612
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PL020838
several deciduous trees in her rear yard and several on the subject lands providing
screening. The trees on the site are to be removed and replaced with evergreens. The
Board is satisfied that while these new trees will not initially provide 'comparable
screening, in the longer term the screening effect will be improved. ,The new planting is
also consistent with the requirements of the environmental impact study which
recommends that native species be used to enhance the habitat associated with the
Farewell Creek valley lands and site plan guidelines for landscaping of commercial
properties in Clarington.
Mrs. Racine is also concerned with the location of the entrance to the Tim
Horton's site. It is planned to be 5 metres from her south property boundary, 2 metres
less than the general by-law provisions. The proposed location is a balance between
locating the entrance as far from Highway 2 as possible due to traffic concerns and
maintaining an appropriate separation from residentially zoned lands. The frontage of
the Racine lands is wider than adjacent residential lot~ with the driveway and home
being located towards the north lot boundary. The Board is satisfied that the reduction
in setback will not significantly impact the use or enjoyment of the Racine lands,
Further it is in the broader public interest of traffic management and safety that the
distance between the Centerfield Drive and Highway 2 intersection and the entrance to
the proposed Tim Horton's be maximized,
Both Mrs. Racine and Mrs. Durbray raised concerns related to traffic and
pedestrian safety on Centerfield Drive and other area roads. Centerfield Drive slopes
down to Highway 2. They say inclement weather causes problems traveling this hill.
Highway 2 is designated an arterial road. Currently during the morning rush hour
there are 1050 vehicles traveling westbound and in the afternoon peak period there are
1350 vehicles per hour trave.ling eastbound, This is projected to increase over the next
5 years to 1200 and 1550, respectively, The evidence is that the proposed Tim
Horton's will not add significantly to existing background traffic in the area. Seventy
percent of the traffic to the subject site is projected to come from existing traffic in the
area. The traffic studies demonstrate that any additional traffic can be adequately
accommodated on area roads, This intersection is currently under the jurisdiction of the
Region, but the traffic studies document that the volumes of traffic warrant lights. In
addition, the proponent is required as part of the site plan process to contribute to traffic
61.5
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PL020838
lights at the Highway 2 and Centerfield Drive intersection, The Board accepts that
together these two circumstances should expedite the installation of lights at this
intersection, The traffic studies do not support a requirement that the lights be installed
prior to the development of the site and therefore the municipality is not requiring that as
a condition of approval.
Other concems related to road conditions in bad weather and limiting parking on
Centerfield Drive fall within the municipality's authority and are outside the Board's
jurisdiction to require.
Between the Durbray property and the subject lands is a chain link fence. Mrs.
Durbray says people sometimes jump the fence and trespass across her property. A
new 6 foot high wood board fence is to be installed along the entire northeast property
boundary of the subject lands as a condition of the site plan. The Board is satisfied that
this will reduce or eliminate trespass and provide adequate screening in conjunction
with the existing trees between the Durbray lands and this proposed commercial
operation.
The Board will allow the appeal by the TDL Group and amend Zoning By-law 84-
63 of the Municipality of Clarington in the form of Attachment 1 (Exhibit 6, Schedule A),
The Board will approve the Site Plans (Exhibits 7 (a) to (i)), subject to the conditions in
Attachment 2 (Schedule 6, Schedule B), The Board will withhold its order until advised
that the required site plan agreement (Exhibit 8) has been executed.
"M. F. V. Eger"
M. F, V, EGER
VICE-CHAIR
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PL020838
ATTACHMENT 1
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER 2003-007
being a By-law to amend By-law 84-63, the Comprehensive Zoning By-law for
the Corporation of the former Town of Newcastle
WHEREAS, the Council of the Corporation of the Municipality of Clarington deems it
advisable to amend By-law 84-63, as amended, of the Corporation of the Municipality of
Clarington for ZBA 2000-022;
NOW THEREFORE BE IT RESOLVED THAT, the Council of the Corporation of the
Municipality of Clarington enacts as follows:
1. Section 17.5 "SPECIAL EXCEPTION-NEIGHBOURHOOD COMMERCIAL (C2-
7) ZONE" is hereby amended by adding thereto, the following new Special
Exception 17.5.7 as follows:
"17,5.7 NEIGHBOURHOOD COMMERCIAL EXCEPTION (C2-7) ZONE
Notwithstanding Sections 3.15 (e)(i), 17,1 (b) and 17.3 (c)(iv) on those lands
zoned "C2-7" on the Schedules to this By-law may, in addition to the other uses
permitted in the Neighbourhood Commercial (C2) Zone" be used for an Eating
Establishment and shall be subject to the following zone regulations:
a) No entrance shall be permitted within 5,0 metres of the boundary of the
side yard lot line boundary of a residential zone
b)
Setback from southerly street line
2 metres (minimum)
5metres (maximum)
c)
Rear Yard Setback (minimum)
3.5 metres
d) Any drive-through facility shall be located a minimum of 17 m from any
public street."
2. Schedule "4" to By-law 84-63, as amended, is hereby further amended by
changing the zone designation from:
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PL020838
"Special Purpose Commercial Exception (C5-1) Zone" to "Neighbourhood
Commercial Exception (C2-7) Zone", as illustrated on the attached Schedule "A"
hereto,
3. Schedule "A" attached hereto shall form part of this By-law.
4, This By-law shall come into effect on the date of the passing hereof, subject to
the provisions of Section 34 of the Planning Act,
BY-LAW enacted by the Ontario Municipal Board this 15th day of January, 2003.
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PL020838
ATTACHMENT 2
SITE PLAN APPROVAL, REVISIONS AND CONDITIONS
TDL GROUP LTD.
1502 KING STREET EAST (NOW 1502 DURHAM HIGHWAY 2 EAST)
COURTICE
The following Site Plans, Plans and Drawings are approved and subject to the conditions set out
below being satisfied:
Drawing Title
By:
Site Plan ...................,......,SP............,....,November 2001 ,..,... January 14, 2003...,... TDL
Group
Typical Details .................. TYP-1 ............September 10, 2002 ................................... TDL
Group
Typical Details '.........,....... TYP-2 .,.......,..October 21, 2002...,. ....,............,................, TDL
Group
Typical Details ....,..,....,...., TYP-3 ............October 2002........... ...,....,.......................... TDL
Group
Typical Details ..,.,..,......,... TYP-4 ............October 2002 ..,........ ,.....'.............,...........,.. TDL
Group
Exterior Elevation,..,..........A5.......,.........,January 10, 2003..... ............................,...... TDL
Group
Grading/Servicing .......,....,GS ,.... ,........... March 2002,............, January 14, 2003 ......, TDL
Group
Details (Landscape Plan).. LP - 1 of 2 ....,January 14, 2003..,..
...................,.......,............. Terrascape Designs
Details (Landscape Plan)..LP - 2 of 2 .....January 14, 2003.....
'.,....,........,... ,.....,.".......,.., Terrascape Designs
Illumination ..............,........IL ..............,.,.,November 2001 ......, ....,......,....................,.. TDL
Group
General Notes and Specifications............July 2002 ,......,......... ..,.....................,...,....., TDL
Group
Drawing No. Dated:
Last Revision Date Prepared
CONDITIONS OF APPROVAL
The following are the conditions of approvai of Site Plan, Plans and Drawings:
1, The Owner shall enter into an agreement with the Municipality of Clarington dealing with
and ensuring the provisions of all the facilities, works and matters which either are
shown on the approved Site Plan, Plans and Drawings or are referred to in these
conditions, including the maintenance of them, as provided in Subsection 41 (7)(b) of the
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PL020838
Planning Act, The agreement shall contain provisions by which performance guarantees
to the satisfaction of the Municipality of Clarington will be provided by the Owner.
2. The Owner shall transfer to the Regional Municipality of Durham for a nominal
consideration free and clear of encumbrances and restrictions, the site triangle at the
corner of Centerfield Road and Durham Highway 2 as shown on the Site P'lan (Drawing
SP),
3, The Owner shall transfer to the Municipality of Clarington for a nominal consideration
free and clear of encumbrances and restrictions, the valleyland areas, revised to
eliminate the 90 degree corner, which are identified as "Lands to be Dedicated to the
Municipality" on the Site Plan (Drawing SP),
4. The Owner shall prepare and register on title the necessary reference plan of survey at
its cost showing the lands to be transferred to the Municipality of Clarington and to the
Regional Municipality of Durham, respectively,
5, A professional engineer shall stamp, sign and date the Grading/Servicing Drawing (GS)
and a professional landscape architect shall stamp, sign and date the Landscape Plan
and Details Drawings,
6, The Owner shall obtain an access permit from the Municipality of Clarington for property
access from Centerfield Drive for the development of the site in accordance with the Site
Plan,
7, The Owner is responsible for all costs necessary to facilitate the construction of an
access from the site to Centerfield Drive including without limitation, the cost of providing
a connecting access which shall include any pavement removal, curb restoration, utility
relocation, entrance paving and curb cuts,
8, The Owner shall obtain the approval of the Municipality of Clarington's Director of
Engineering Services to a design detail for the proposed entrance construction on
Centerfield Drive, The required detail must clearly identify all works required for the
removal of the existing entrance to the property as well as the construction of the new
entrance, The location of all proposed curb cuts/drop curb must be clearly indicated. Any
portion of the existing drop curb that is not situated within the proposed entrance must
be restored to full curb,
9, All works and services except Regional Municipality of Durham works and services, shall
be designed and constructed in accordance with the Municipality of Clarington Design
Criteria and Standard Drawings,
10, The Owner shall submit six (6) copies of the detailed Servicing/Grading Plan to the
Regional Municipality of Durham,
11, The Owner shall make application and obtain permission for connection to Regional
Municipality of Durham services and deposit monies required for the installation of
Regional services to the site's property line,
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PL020838
12. The Owner shall obtain written permission from the Central Lake Ontario Conservation
Authority ("CLOC") under Ontario Regulation 145/90, the authorities Fill Construction
and Alteration to Waterways Regulation, prior to commencing any filling or grading on
site.
13. The Owner shall obtain CLOC's approval of an erosion/sedimentation control plan for
the site to implement the stormwater management measures as described in the
Stormwater Management Report for the site which was prepared by TDL Group Ltd.
(2002) as approved by CLOC,
14. The Owner shall install Iitterbins that are raccoon resistant to minimize attraction of
wildlife onto the site during operation of the restaurant to the satisfaction of the
Municipality of Clarington's Director of Planning Services.
15, The Owner shall ensure the stabilization of the slopes adjacent to the Farewell Creek
Valley on the site to the limit of the environmental protection zone established by the
Municipality of Clarington's By-law 84-63, as amended, and shall provide temporary
fencing at the perimeter of the site abutting the environmental protection zone to prevent
accidental access by construction vehicles, fill or construction debris, to the satisfaction
of CLOC,
16, Except as required by the Ontario Building Code, no rooftop mechanical equipment,
including air conditioning\heating\ ventilating\equipment shall protrude above the roofline
shown on Exterior Elevation Drawing (AS),
619