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CORPORATION OF THE TOWN OF NEWCASTLE
PLANNING AND DEVELOPMENT DEPARTMENT T.T.EDWARDS,M.C.I.P.,Director
HAMPTON,ONTARIO LOB UO TEL.(416)263-2231
REPORT TO THE GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
MEETING OF APRIL 5, 1983
REPORT NO. : PD-59-83
SUBJECT: LD 72-83 - H.J. BOUT
PART OF LOT 11 , CONCESSION 3,
FORMER TOWNSHIP OF DARLINGTON
LOT 33 on PLAN M-749, RILLS OF LIBERTY NORTH
RECOMMENDATION:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the
following:
1 . That Report PD-59-83 be received ; and
2. That staff be provided with further direction
and Council 's position with respect to the
appropriateness of an Appeal to the Land
Division Committee Decision of March 7th,
1983.
BACKGROUND:
On February 11th, 1983, staff received notification of an
application, LD 72-83, that was to be considered by the Land
Division Committee at their next scheduled meeting. The
following would summarize the comments as submitted to the
Land Division Committee.
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Report No: PD-59-83 .. ./2
Conformity with Official Plan
The subject area is designated for Estate Residential
development pursuant to Section 10.3.1 .4 of the Regional
Official Plan. The number of lots shown on plan of
subdivision 18T-77123 would conform with the maximum number
of residential units permitted and as denoted on Schedule
"A-5" of the Regional Plan. The requested severance to
permit the division of one of the forty-six lots would
exceed the maximum set in the Regional Plan. In that
regard, the proposed severance would not conform with the
Region of Durham Official Plan.
Conformity with Zoning By-laws
It would appear the "subject" and "retained" lands would
comply with the area requirements as contained within By-law
80-101 , amending Restricted Area By-law 2111 . Section
13(R) (b) - "Lands Subject to Flooding" states that no person
shall erect any building or structure within the flood plain
limits of the Bowmanville Creek, as designated by the
Central Lake Ontario Conservation Authority, without written
permission of the Central Lake Ontario Conservation
Authority. Staff noted, for the Committee's information ,
that the Bowmanville Creek runs through the subject and
retained lands and as such would need the approval of the
Conservation Authority to be deemed in conformity with the
said By-law.
Staff noted further, for the Committee's information, that
the minimum lot size of .4 hectares as contained within the
By-law, would appear to be representative of a small
majority of the total lots created within this subdivision.
The intrusion of physical constraints upon development, i .e.
Bowmanville Creek, excessive slopage, drainage and grading
as reviewed at the subdivision stage, resulted in the
creation of lots exceeding the .4 hectare minimum standard,
thereby creating adequate "building envelopes" on each lot .
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Report No: PO-59-83 . . ./3
The creation of an adequate building envelope for the
proposed lot is therefore essential . Several of the lots
within the development have "frontage" on Regional Road 14,
i .e. , lots 1 , 19, 20, 21 , 22, 33, 34 and 46. Schedule "M"
within the Subdivision Agreement restricted the locating of
any of the permitted uses on lots 1 , 20, 34 and 46 closer
than 15 metres to any portion of the road allowance of
Durham Regional Road Number 14. The remaining lots having
"reverse frontage" on Regional Road 14 (19, 21 and 22), all
have applicable rear-yard setbacks of 15 metres (as
contained within amending By-law 80-101 ) .
In considering the location of the Creek and overall size of
lot 33; said lot was not included within the Subdivision
Agreement - Schedule "M". Staff noted, however, should
approval be granted, a similar restriction whereby the
locating of any of the permitted uses on the proposed lot
not be closer than 15 metres to any portion of Durham
Regional Road Number 14.
In consideration of the above comments, staff recommended to
the Land Division Committee denial , due to the
non-conformity with the intent of the Regional Official
Plan; however, should approval be granted, the following
conditions shall apply:
1 . A lot development charge of $600 be paid to the Town of
Newcastle;
2. The location of any of the permitted uses within By-law
2111 , as amended by By-law 80-101 , shall not be closer than
15 metres to any portion of Regional Road Number 14; and
3. Written confirmation of the Central Lake Ontario
Conservation Authority with respect to the conformity of
Sections 13(R) (b) of By-law 2.111, as amended.
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Report No: PD-59-83 . . ./4
The minutes of the Land Division Committee Meeting reflect
the following:
Mr. N. Bout was present on behalf of this application.
Mrs. Ruby Ingleton, Bowmanville, was present in opposition
to the application.
A letter of objection was received from East Woodbridge
Developments Limited, as well as a Petition signed by ten
residents of the area.
Mr. Bout advised the Committee that he did not wish to
mislead the Committee into believing that the following was
final , he wished to have recorded that there may be a
possibility of a rezoning application in the future being
filed with -the Town of Newcastle with respect to the
proposed lot being severed. Mr. Bout explained that he was
a Minister of a branch of the Christian Reform Church, and
that the Congregation may want to build in the near future.
If the Congregation did not wish to build on the proposed
lot, then he would propose to sell the property, with the
Committee's concurrence, to defer expenses incurred building
the present home on the west portion of the lot. Mr. Bout
further stated that he had purchased the lot from the Town
of Newcastle, which had encouraged him to buy, by its
assurance that they would have no problems in severing the
lot.
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Staff wish to point out, for Committee' consideration , that
at no time during discussions with the applicant was it
indicated that staff would have no objections to the
severance; rather staff fore-warned Mr. Bout that staffs '
position with respect to a severance and any possible
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rezoning would more than likely be in the negative.
Report No: PD-59-83 . . ./5
A motion of the Committee was put forth that application LD
72-83 be denied, as the proposal did not conform to the
Regional Official Plan. This motion did not receive the
required support, and hence was defeated. A second motion
was put forth that application LD-72-83 be approved as
applied for, as the subject parcel is double the size of the
majority of the lots in the immediate area and has been sold
to the applicant by the Town with a view to being severed,
subject to:
1 . The applicant satisfy all the requirements of the
Regional Municipality of Durham concerning the provisions of
Regional services , financially and otherwise;
2. That the applicant satisfy the requirements of the Town
of Newcastle, financially and otherwise;
3. That the applicant submit two copies of a registered
reference plan on the subject parcel for the clearance of
documents ;
4. That this approval shall lapse at the expiration of two
years from the date the Decision is final and binding,
unless all the conditions are fulfilled and the formal
Consent has been released;
5. That prior to the signing of the Certificate given by
the Secretary-Treasurer that the Consent has been
Y- given, the
Secretary-Treasurer is to be advised in writing by the
Regional Municipality of Durham that Condition # 1 has been
carried out to its satisfaction; and
6. That prior to the signing of the Certificate given by
the Secretary-Treasurer that the Consent has been given, the
Secretary-Treasurer is to be advised in writing by the Town
of Newcastle that Condition # 2 has been carried out to its
satisfaction.
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Report No: PD-59-83 .. ./6
The following is a summary of the comments received by the
Land Division Committee with respect to this application as
submitted by other agencies:
Region of Durham - Works Department
"Please be advised that the Regional Works Department wishes
to object to the above noted severance application.
Our records indicate that the water pumping station
servicing the Rills of Liberty North Subdivision was
designed to supply water for 46 units. Registered Plan
M-749 indicated that 46 lots will be developed. By
permitting this severance we would be taxing the water
supply system as well as setting a precedent for the
division of other large lots within the development ."
Region of Durham - Health Unit
The above application for severance has been investigated
by this Health Unit, and, insofar as health matters are
concerned, there are no objections to its approval .
I would, however, stress that this letter is not to be taken
as a permit to install a private sewage disposal system at
the site involved. The required permit will be issued only
after a proper inspection of the land area involved has been
made and said inspection will be carried out upon receipt of
a formal application."
Central Lake Ontario Conservation Authority
"A major portion of the retained and subject lands exhibit
the hazardous condition of flood and erosion
susceptibility.
It is the Authority's policy to support the creation of lots
which are relatively free of restrictions to development.
This policy minimizes the conflicts between urban uses and
the natural environment on the undeveloped lot.
Based on the above, the Authority staff question the
advisability of approving the above application."
Region of Durham - Planning Department
"The area is recognized for "Estate Residential " development
under Section 10.3.1 .4(3) of the Durham Regional Official
Plan.
The maximum munber of residential units permitted is 46.
Plan M-749 registered in 1980 was for 46 lots.
Recommend: Denial
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Report No: PD-59-83 . . ./7
Ministry of Natural Resources
"A large portion of the area to be severed lies within the
Regional Storm Floodplain for this branch of Soper Creek as
mapped by the Central Lake Ontario Conservation Authority.
The remaining part of the lot lies within the fill lines,
under regulation by the Conservation Authority.
A general principal of this Ministry's hazard land policy is
to recommend against the encroachment of lots within flood
plain area. Also, that no buildings or major landscape
alteration take place in the flood plain , other than those
necessary for flood or erosion control . Taking the above
into consideration this Ministry recommends the following:
1 ) That the Regional Storm floodplain as mapped by the CLOCA
be outlined on the plan for the area to be severed, and;
2) that the proposed lot lines of the severed area be
revised so there is no encroachment of the lot into the
flood plain area, and;
3) the revised plan be circulated to this office, prior to
approval , for clearance of these conditions.
We also wish to point out that a permit is required from the
Central Lake Ontario Conservation Authority for any works on
these lands in the way of filling, construction or lot
alteration.
This Ministry will have no objection to this application
subject to the above conditions.
We ask that the committee advise this office of their
decision regarding this matter."
COMMENTS:
In view of the foregoing concerns, staffs ' immediate
reaction was to recommend that the Decision of the Land
Division Committee be appealed. However, in reviewing the
subdivision file, it was noted that the original submission
showed a park block located between the original Lot 32 and
Lot 33. This block was identified due to the flood and fill
restrictions applicable to the subject lands. In that
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Report No: PD-59-83 . . ./8
regard, staff Report P-100-79 was considered by the former
Planning and Development Committee on June 11th, 1979. Said
Staff Report recommended that in view of the fact that
neither the Town or the Conservation Authority was willing
to accept the maintenance of the proposed park block, that
it be incorporated into the surrounding lots. This
recommendation was endorsed by Council on June 18th, and the
Town 's conditions of draft plan approval forwarded to the
Minister of Housing.
The question therefore is essentially one of Official Plan
conformity and suitability of the lands for the proposed
use. In 'that regard, Section 17.2 of the Durham Regional
Official Plan provides that "In order to provide for
flexibility in the interpretation of the numerical figures
and quantities in the text and Map C, it is intended that
such figures and quantities, with the exception of the floor
space indices , be considered to be approximate, and that for
the purposes of preparing zoning by-laws, subdivision
approvals or otherwise , minor deviations may be permitted
without amendment to this plan provided that such deviations
do not alter the intent of this plan". It has been
suggested by staff of the Regional Municipality of Durham
that, given this Section, a variation from 46 to 47 lots
within this Estate Residential proposal would not offend the
intent of the Durham Regional Official Plan. This Section
of .the plan , however, does not make specific reference to
Map A, nor does the text make any reference to the number of
lots within this particular Estate Residential subdivision.
In fact, on Schedule A, opposite the designation for Estate
Residential development, is a note indicating that the
figure shown on Schedule A represents a maximum number of
residential units permitted. This would seem to suggest a
more rigid intent. In fact, Section 17.1 of the Regional
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Report No: PD-59-83 . . ./9
Plan states that : "Unless otherwise specified below;
deviation from the provisions of the text and Maps A, B and
C of this Plan will require an amendment to this Plan."
It would therefore appear that there is room for argument as
to whether or not Section 17.2 is specific enough to allow
for deviation from this figure. However, in view of the
fact that this is a question of Regional Plan conformity and
Regional staff have indicated that, in their opinion, this
clause could apply, staff may not be in a position to
successfully argue this point before the Ontario Municipal
Board.
The second consideration is one of a suitable building
envelope, and we again refer to the original submission
which showed Lot 33 as a 1 .4 acre parcel of land on the
south-west corner of the intersection of Liberty Street and
Pamela Court. That submission indicated a buildable area,
but that half of the lot was subject to flood and fill
restrictions. The addition of the originally proposed park
block to Lots 32, 33 and 34, resulted in the addition of a
small envelope of land outside of the flood and fill
restrictions to Lot 33. Upon application by Mr. Bout to the
Town for a building permit in respect of Lot 33, the
Conservation Authority approved a building location on that
portion of the land which had previously been included in
* the park block (copy attached) . This therefore meant that a
second building area was available within the limits of the
originally proposed Lot 33. It is therefore not
inconceivable that had the original subdividers wished to do
so, they could have created an additional building lot
within this plan of subdivision , assuming of course, that
the interpretation of the Regional Official Plan would have
permitted that at the time that the subdivision was being
processed.
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Report No: PD-59-83 . . ./1D
Based on the foregoing comments, it would appear that there
is a limited basis for an appeal of the Land Division
Committee's Decision. We would note also, for the
Committee's information, that the Minutes of the Committee
Decision reveal that Mr. Bout , being a Minister of a Branch
of the Christian Reform Church, had indicated the
possibility that the Congregation may wish to build a church
on the severed parcel of land. This, of course, would
require an application for rezoning, and would have to be
dealt with by the Town on its own merit at such time as an
application is received, which staff understand is imminent ,
but as of the date of writing has not been confirmed.
It is staffs' understanding that a number of appeals will be
lodged in respect of this Decision, and as far as the Town
is concerned, the conditions of approval imposed by the Land
Division Committee would adequately safeguard the Town's
interests, as would the subdivision agreement presently
registered against title of the subject lands should the
Decision not be contested. However, the subject subdivision
was originally conceived as a planned development, and
approval of this severance is a potentially dangerous
precedent. We also note that there are a number of other
lots which could conceivably be severed in a similar fashion
and staff are concerned that this type of severance could
undermine the intent of planned residential developments,
such as the Rills. Staff would also like -to bring to the
Committee's attention the fact that a number of residents
have also expressed concern about this severance. This
concern is directly related to the suggestion that the
severance is contrary to the intent of the original proposal
as presented to the public, and therefore undermines the
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planning process which culminated in the final plan approved
by the Region and the Town and registered by the
subdivider.
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Report No: PD-59-83 . . ./11
In view of the foregoing, and the concern expressed by the
residents of the area with respect to this severance, staff
are seeking Council 's direction with respect to the
appropriateness of filing an appeal , on behalf of the Town
of Newcastle, of the Decision of the Durham Regional Land
Division Committee.
Respectf ted,
T. T. Edwards, M.C.I.P.
Director of Planning
L T 7 *m j c
28, 1983
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