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HomeMy WebLinkAboutCLD-31-04 v Cl!Jl-!lJgton Meeting: COUNCIL Date: Monday, September 27,2004 Report #: CLD-31-04 File#: Subject: TOMINA PROPERTY CONCERNS RECOMMENDATIONS: It is respectfully recommended to Council:: UNFINISHED BUSINESS REPORT CLERKS DEPARTMENT l.eL J.i " ''1' 'C(/c,-uf r 1 _,J"V "-" , _ By-law #: 1. THAT Report CLD- 31 -04 be received for information; and 2, That the interested parties listed in Report CLD-31-04 be advised of Council's decision, MKS/LC/kb eviewed by: ~))..J.ht. C __' C"-\C,,, III Franklin Wu, Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: CLD-31-04 PAGE 2 1.0 BACKGROUND At the meeting held on Monday September 13, 2004 Council heard a delegation from Josip and Marcia Tomina. In their subsequent resolution, Council directed that this matter be referred to staff for response. The Tomina's had raised several issues involving their neighbour at 2987 Solina Road North. Many of these issues were enforcement matters currently under investigation. It is not the practice of the Municipal Law Enforcement Division to release information revealing the identity of a Complainant. This material is kept confidential under the provisions of the Municipal Freedom of Information and Protection of Privacy Act. In this particular situation the Tominas have come forward and identified themselves and requested information of Council, thus relieving the Division of the restrictions of the Act. The property immediately south of the T ominas is owned by Peter and Laura-Lee Hogenbirk. In July 2003, the Municipal Law Enforcement Division received a complaint concerning the Hogenbirk's property and the operation of a heavy equipment business on site. Staff made a preliminary inspection of the site and made notes on the presence of the gravel piles, broken concrete and the outbuildings. On August 6, 2003 a letter was sent to the Hogenbirks advising them of the non-conformities and requesting a meeting with them before the end of August. Hogenbirk called the office and an inspection and meeting were arranged for September 11, 2003. At that time staff from both Municipal Law and Planning spoke to Mr. Hogenbirk on site, about his landscaping operation and his options to legalize it. Hogenbirk indicated that he was interested in trying to legalize his business. At that time it was agreed that the officer would check back in early October to see what progress had been made to bring the property into compliance as the Hogenbirks continued to work with the Planning Services Department to resolve the issues. REPORT NO.: CLD-31-04 PAGE 3 In October the officer received a call from Peter Hogenbirk stating that he had been informed by a member of Council that he might not have to rezone his property because of pending changes to the Municipal Zoning By-law. Staff spoke to Planning and confirmed that this was not the case, the proposed changes to the by-law would not legalize their current situation. Hogenbirk was advised of this and told that if no action was taken by him to legalize the operation by November 26, 2003 he could face charges. Prior to the deadline staff received a call from the Hogenbirk's lawyer advising that they were actively working on the rezoning. During November the Hogenbirks retained a Planning Consultant and met with Planning to prepare the paperwork for the following: 1. Regional Official Plan Amendment 2. Clarington Official Plan Amendment 3. Clarington Zoning Amendment 4. Site Plan Amendment 5. Environmental Impact Study. It has always been the policy of the Municipal Law Enforcement Division that our first priority is compliance. The Municipality is allocated six court days per year by the Provincial Courts. Given the time delays inherent in the court process between the laying of a charge and an actual trial date, it is often possible that the matter could be resolved and legalized prior to the court appearance. If a property owner is actively working on bringing a property into compliance, staff will give them the time required to achieve that purpose. On December 1, 2003 staff met with Councillor Foster to review the matter and advise him of the options available to the Hogenbirks. Hogenbirk's consultant was actively pursuing the necessary affidavits and documents required for the various applications at that time. REPORT NO.: CLD-31-04 PAGE 4 On December 16, 2003 the Provincial Government introduced Bill 27, the Greenbelt Protection Act, 2004. The new law would freeze all development and rezoning of properties south of the Oak Ridges Moraine for a period of one year. Staff are barred from accepting or processing any rezoning applications on lands outside the urban areas. The Act also contains a retroactive effective date of December 16, 2004. Regardless of the date of final passage, any applications received after that date could not proceed. This effectively placed the Hogenbirks and several other properties "on hold". Staff advised the Hogenbirks and the Tominas of this. In considering the options available staff do not believe that a prosecution would be successful in the current situation. The Hogenbirks have attempted to legalize their property but have been stopped by the actions of the province. In July, 2004, of this year staff received a letter from Tomina's lawyer concerning the lack of enforcement and demanding that charges be laid. He also stated that the Greenbelt Protection Act did not exist in law as of yet. The Act had in fact been passed and received Royal Assent on June 24, 2004. Tomina's lawyer was advised that this matter would not proceed until the Act was repealed in December of this year. In response to the possibility of action against the Municipality, the solicitor was advised that section 12 of the Act states that no cause of action arises as a direct or indirect result of the enactment of the provisions of the Act. On September 15, 2004 staff spoke to Mrs. Tomina about the issues raised at Council, in particular the noise. Since staff are not witnesses to the noise, the Tominas would be required to keep a log of the noise and this would be referred to our prosecutor. This is the standard procedure for all noise complaints. She was provided with a copy of the by-law and a noise log to track the dates and times. At that time Mrs. Tomina indicated that she did not wish to go to court or create bad feelings with her neighbour. REPORT NO.: CLD-31-04 PAGE 5 Staff also attended the Hogenbirk's property in regards to the drainage. Mrs. Hogenbirk was also advised of the noise complaint. At that time she said they would take steps to eliminate the problem. The Hogenbirks have made some changes to the grade of their land and planted some trees. This has apparently changed the natural drainage of the lot. Staff have spoken to Engineering Services about this and both agree that this is a civil matter and not within the jurisdiction of the Municipality. The Tominas have been advised of this. 2.0 CONCLUSION A copy of this report has been provided to the Tominas. Staff will continue to follow the T omina file and the other similar cases. The Hogenbirks have been advised that all their material must be ready to submit in December as soon as the Greenbelt Protection Act is repealed. When and if the noise continues and the Tominas decide to file a complaint it will be dealt with in the same manner as any other noise complaint. List of interested parties to be advised of Council's decision: Josip and Marcia Tomina 2943 Solina Road North Bowmanville ON L 1 C 3K4 Peter and Laura-Lee Hogenbirk 2897 Solina Road North Bowmanville, ON L 1 C 3K4