Loading...
HomeMy WebLinkAboutPSD-030-03 . . ~ Clw:inglon REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Report #: Monday, March 24, 2003 V / '-f PSD-030-03 File #: ZBA 2000-064; LD 2002/050 GfJf1-/33-o3 Date: By-law #: Subject: APPEALS BY ROBERT AND LOUISE MARTIN OF THE REZONING AND CONSENT APPLICATIONS FOR 15 MAPLE STREET, HAYDON RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-030-03 be received for information. Submitted by: Reviewed by: ~ avi . Creme, M.C.I.P.,R.P.P. Director, Planning Services an lin Wu Chief Administrative Officer BR*L T*DC*df 14 March 2003 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T (905)623- 3379 F (905)623-0830 630 , " REPORT NO.: PSD-030-03 PAGE 2 1.0 BACKGROUND 1.1 On January 7th and 8th, 2003, an Ontario Municipal Board Hearing was held in the Council Chambers with respect to appeals by Robert and Louise Martin of a rezoning application and a consent to sever (land division) application for the northwest portion of 15 Maple Street, Haydon. The subject property is in the western portion of the hamlet, generally on the west bank of the Haydon Tributary of the Bowmanville Creek. The purpose of the two applications was to permit the construction of a single detached dwelling. 1.2 From the outset of the rezoning application (which preceded the severance application) and during the pre-submission consultation period, conservation authority and municipal staff identified the limited amount of tableland above top- of-bank as a key issue since this area would have to contain: at least a minimum buffer from the top-of-bank, a single detached dwelling, a well, a septic system having both primary and reserve beds, room for accessory buildings and structures and setbacks. 1 .3 Mr. Nick Macos was the solicitor representing the Municipality. Mr. Bob Russell of the Planning Services Department gave evidence with respect to the planning context and planning policies governing their applications and Municipality's position regarding the suitability of an additional lot. Ms. Lisa Backus of CLOCA gave evidence with respect to the determination of the top-of-bank. Mr. Stephen Usher of Gartner Lee gave evidence with respect to the EIS Study and the determination of the top-of-bank. The Board noted the vigorous challenge by Mr. Martin on the views of the municipal planner and conservation authority planner. 1.4 The Martins were not represented by legal counsel. The Martins had Walter Powell of the Durham Health Unit under subpoena to provide evidence on the suitability of the private well and waste disposal system. Mr. Martin, an Ontario Land Surveyor provided his own evidence on the top-of-bank location. 631 '. J REPORT NO.: PSD-030-03 PAGE 3 1.5 In evaluating all of the evidence, the Board found that the top-of-bank as staked out by the planner for the Conservation Authority, was valid and had not been successfully impeached by Mr. Martin. The Board noted: "In many respects, the Board is of the view that there was very little evidence that the conservation authority planner's views should be suspect. She held her opinions firmly as a good professional should, yielding no ground on the differentiation of the land form and land function and adhering to her findings in a scientific and objective manner." 1 .6 The Board was also concerned with the constraint inherent in a lot of the size of the proposed lot, even if the developable portion could be located away from the top-of-the-bank. The primary tile bed system can be located to accommodate the lot, but if it were to break down in the future, would the remaining area be sufficient to address a secondary tile bed system? Moreover, the Board was concerned about the precedent this could set for other applications. The Board also found the easterly portion of the proposed lot would intrude onto the environmentally sensitive area. Such an impact will not comply with the spirit and letter of the Clarington and Durham Regional Official Plans. 1.7 In conclusion, the Board found that the tests for both the rezoning and the consent to sever have not been met. Accordingly, the appeals were dismissed by Board Order. Attachments: Attachment 1 - O.M.B. Decision 632 " ISSUE DATE: Mar. 06, 2003 DECISION/ORDER NO: ,~ ATTACHMENT 1 l-' 0307 -~ Ontario Ontario Municipal Board Commission des affaires municipales de l'Ontario j'ln I I ;{\ Jr/ ,\.../',' ~ Ill! ~ -'" - - '~,,}: /, - , - ,I \1;0,'" 1 2 7r'03PLOf0354 r\,jUf~1 ~;I P;-:. j : PLrlf~,\il~,:('; Ji ,,:..:-l:f;'-.Jil;tJ H_:)i,RflvlEfJl Robert Martin 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 portion of lands composed of Part Lot 14, Concession 8 from "Environmental Protection (EP)" Zone to Hamlet Residential to permit a single detached dwelling and facilitate a related severance application OMB File No: Z020057 Robert Martin has appealed to the Ontario Municipal Board under subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from a decision of the Land Division Committee of Regional Municipality of Durham which dismissed his application numbered B-131/2002 for consent to convey part ofthe lands composed of Part Lot 14, Concession 8 OMB File No: C020208 APPEARANCES: Parties Counsel*/Aaent Municipality of Clarington N. T. Macos* Robert Martin DECISION DELIVERED BY S. W. LEE AND ORDER OF THE BOARD The subject parcel of lands is located in the Hamlet of Haydon in the Municipality of Clarington (Municipality). The owners, Mr. and Mrs. Martin, want to sever the north westerly portion of the lot so that a house can be built. The application for consent to convey has been refused by the Committee of Adjustment. Also, the requi9it'N~fljG,'\ amendment to change from "Environmental Protection Area" to "Residential" haS.b~!i.l!L/~3:3 refused by the Council. Both of these appeals were before the Board at this hearing..,_ "., . :;:{fe!~'i!'j,.L TO. The subject premises is located near the tributary of the Bownr..o!llTJe;(flJ.lek'a;;a";~~ as such, and pursuant to the policies of both the Durham and Clarin~~.o:ffig?u~fi!.T~!.-==':' there are environmental constraints associated with these applicatibns::..eflief-amq\':lg .~_..; them are the concerns whether the proposed lot is located away from'1Fi'e'l6p7otct6e- , , /....., --:-. ".,m---; ;../ "-'--i 633 .... ....J_ ......._.....v_.;..;. '-. -....--" -2- PL020354 , , I bank, whether there may be infringement on the natural features and heritage of the vicinity and whether the proposed lot can support private well and waste disposal system. An environmental impact study has been commissioned and prepared by Gartner Lee Limited for the evaluation of the site, which had been paid for by the Martins and with the terms of reference principally drafted by the Municipality and the Conservation Authority. In general terms, the study does indicate that development can Occur without impacting either the natural features or hazard features with a number of provisos. The Board heard evidence from Mr. and Mrs. Martin who urged the Board to take a balanced view of the policies, to accept the evidence of the Durham Regional Health Department that the lot can support a waste disposal system and not to adopt the view of the Conservation Authority as to the top-of-the-bank. The Municipality, on the other hand, urged the Board to be cautious about a lot that is quite constrained as, in their view, there is insufficient area above the top-of-the-bank and a setback distance to the naturaJ buffer that has been recommended in the impact study. The Board is cognizant of the anxiety of the Martins in securing a building lot which they consider to be appropriate. They have studied closely the texts of both the Durham and Clarington Official Plans and dissected their policies before the Board with punctilious care. Mr. Martin, being a surveyor and having knowledge of the planning policies and the topography of the area in the area, challenged vigorously both the Municipality planner and Conservation Authority planner on their views in this hearing. In evaluating the totality of the evidence, the Board finds that the top-of-the-bank, as staked out by the planner for the Conservation Authority, is valid and has not been successfully impeached by Mr. Martin. In many respects, the Board is of the view that there is very little evidence proffered that her views should be suspect. She held her opinions firmly as a good professional should, yielding no ground on the differentiation of the land form and land function and adhering to her findings in a scientific and objective manner. Mr. Martin has not convinced me that the top of the bank as staked out by the Conservation Authority should be revised. In fact, his intransigence is but an extraordinary example of how a set of flawed premises, when pursued relentlessly by a remorseless logician, can end up in invalidity. 63 ,) - 3- PL020354 The Board is also concerned that the constraint inherent in a lot of such a size, even if the developable portion can be located away from the top-of-bank. Yes, the primary system can be located to accommodate the lot, but if it breaks down in future, would the remaining area be sufficient to address a secondary system? What if every owner in the vicinity does exactly what is proposed? In addition, the Board also finds that the easterly portion of the lot would not have sufficient setback distance and would intrude onto the environmentally sensitive area. Such an impact will not comply with the spirits and letters of the Official Plan policies in both the Region of Durham and the Municipality of Clarington. In conclusion, the Board finds that the requisite tests for both the zoning amendment and the consent to convey have not been met. Accordingly, the appeals are dismissed. The Board so Orders. "S. W. Lee" S. W. LEE MEMBER 635