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HomeMy WebLinkAboutBy-law 7437/15 (OMB Order no. 150782) Ontario Municipal Board Commission des affaires municipales de ['Ontario * f lrnr Ontario ISSUE DATE: August 05, 2016 CASE NO(S).: PL150782 PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: 2206211 Ontario Inc. Subject: By-law No. 7437/15 Municipality: City of Pickering OMB Case No.: PL150782 OMB File No.: PL150782 OMB Case Name: 2206211 Ontario Inc. v. Pickering (City) Heard: January 5, 2016 in Pickering, Ontario APPEARANCES: Parties Counsel 2206211 Ontario Inc. R.D. Cheeseman City of Pickering P. Bigioni DECISION DELIVERED BY H. JACKSON AND ORDER OF THE BOARD [1] The City of Pickering (the "City") passed Zoning By-law No. 7437/15 (the "ZBL") on July 13, 2015, to amend Zoning By-law No. 3036, as amended, to permit the development of a commercial plaza on lands being Part of Lot 28, Range 3, Broken Front Concession (the "subject property") owned by 2206211 Ontario Inc. (the "Applicant"). A Holding provision was attached to the zoning. The Applicant has appealed to the Board the conditions required for the removal of the Holding Symbol on 2 PL150782 the basis that they are either redundant or are improper holding provisions. There is no t dispute regarding the zoning by-law itself. [2] The Applicant retained T.J. Cieciura to provide land use planning opinion evidence in support of the Applicant's position. Deborah Wylie, Principal Planner for the City, provided land use planning opinion evidence in support of the City's position. Sylvia Spencer, a neighbour directly to the north of the subject property, testified in regard to her concerns with the proposal. Her concerns relate mainly to the future consent required for the easement that is proposed at the northerly extent of the lands, adjacent to her property, which is not before the Board in this matter. •-) Subject lands and context [3] The subject property'is'about 0.77 hectares ("ha") (1.91 acres ("ac")) in area and is located on the north side of Kingston Road, just east of Whites Road. It is currently occupied by two single family homes, of 760 and 770 Kingston Road. To the north of the property are deep residential lots that back onto the subject property and front onto Sheppard Avenue East. To the east of the subject property is a single story commercial plaza with access from Kingston Road. As is described later in this Decision, this property was the subject of a previous Board Decision by Member Emo in 2002. To the west of the subject property is another commercial plaza with multiple buildings, including a Tim Horton's and Wendy's restaurant, with drive through facilities. Delta Boulevard is located along the western edge of the Tim/Wendy's.lands. Delta Boulevard is a short north to south road that has a signalized intersection with Kingston Road and a bulb at its northerlyextent. Attachment 1 is an airphotograph of the subject 1 property and immediate context. This was provided in evidence as Exhibit 5 Tab 1. [4] The subject property is designated Mixed Corridor in the Pickering official plan, and is located within the Woodlands Urban Area Neighbourhood within the South Pickering Urban Area. The lands are currently zoned R4 Residential. There is no dispute that it is appropriate for the zoning by-law to be amended to permit development 3 PL150782 consistent with the existing mixed use (MU) zones that occur to the east and the west of the subject property. Proposal [5] The Applicant originally submitted a development application that required both an official plan amendment and a zoning by-law amendment. The development proposal was modified, and the need for an official plan amendment was eliminated. A report to the Planning & Development Committee prepared by Ms. Wylie, dated June 8, 2015, was entered into evidence as Exhibit 2, Tab 13. This report describes the improvements that were made to the proposed development, including underground �.f piping of the Amberlea Creek tributary that flows through the lands, a shared vehicular site access along the driveway on the property to the east of the site, a functional second storey, buildings close to Kingston Road, a third commercial building, and a landscaped buffer along the north property line. The report states: The proposal is consistent with the intent of the design and transportation objectives of the Woodlands Neighbourhood policies. Staff supports the proposed commercial development as it is consistent with the commercial development to both the east and the west, promotes the objective of transforming Kingston Road into a `mainstreet', utilizes shared access from Kingston Road, and will complete an east-west connection through the Northeast Quadrant allowing vehicles to access the signalized intersection at Delta Boulevard and Kingston Road. jThe recommended zoning provisions will provide for appropriate site specific performance standards and will be subject to an "(H)"—Holding provision to address the need for agreements to be entered into prior to development of the subject lands. Site plan approval will address detailed design and technical matters. [6] The implementing Zoning By-law No. 7437/15 was provided in evidence at Exhibit 2, Tab 18. The Applicant has submitted a revised site plan to comply with the zoning provisions. This was provided in evidence at Exhibit 2, page 170. The site plan is not before the Board in this matter; however a description of the general features of the site is helpful in understanding the issues in dispute. [7] Access to the subject property from Kingston Road is to be by a driveway located on the adjacent site to the east. At the north end of the subject property there is also to 4 PL150782 be an east to west easement to provide vehicular access across the north portion of the subject property. This east to west corridor is to connect to an east to west parking aisle corridor in a similar location on the property to the east. The access across adjacent properties will require reciprocal agreements and consents that are also not before the Board in this matter. [8] To the west of the subject property there is an east to west corridor that is City owned property,and further west is the northern bulb of Delta Boulevard. It is intended that a roadway or vehicular easement will ultimately be constructed across the City owned lands to provide access from the subject property, as well as easterly lands, to the northerly extent of Delta Boulevard and the signalized intersection at Kingston Road. This City owned lands were dedicated to the City by the'developer of the. Tim/Wendy's lands on the condition that a public road be constructed on these lands. The Tim/Wendy's commercial development has direct access to Delta Boulevard. [9]. The following Section of By-law No. 7437 lays out the holding provisions that the Applicant has appealed: (4) Holding Zone Provisions ("(H)MU-26"Zone) (a) Uses permitted("(H) MU-26"Zone) Until such time as the"(H)"Holding Symbol is lifted,the lands shall not be used for any purpose other than two detached dwellings and accessory uses, subject to the provisions of Section 9 of By-law 3036. • (b) Removal of the"(H)" Holding Symbol ° : The"(H)"Holding Symbol shall not be removed from the"MU-26"zone until completion of the following: (i) The Owner has entered into s Site Plan/Development Agreement with the City and the Region of Durham; (ii) The Owner has satisfied all technical and engineering requirements for the•piping of the Amberlea Creek tributary to the satisfaction of • the City and the Toronto and Region Conservation Authority; 1 5 PL150782 • (iii) The Owner has made a financial payment as compensation for the piping of the Amberlea Creek tributary to the satisfaction of the Toronto and Region Conservation Authority; (iv) The Owner has satisfied all technical, engineering and financial requirements to the satisfaction of the City and the Region for any off-site works including the design and construction of a public road connecting to Delta Boulevard, road restoration, land transfer, easements, utility relocation, cost sharing, grading, drainage and securities; (v) The Owner has satisfied the City with respect to cost recovery for the Northeast Quadrant Study and for the Delta Boulevard storm sewer • over sizing if required. [10] The Applicant contends that the items listed in (i), (ii), (iii), and (v) can be dealt with in either the Site Plan Agreement for the development of the property or other agreements, and therefore it is redundant to require them as part of a Holding provision. The Applicant disagrees with the requirement under item (iv); stating that it is an improper holding provision. This item requires the Applicant to build a new road from his property to Delta Boulevard to City standards on lands that are owned by the City and are not approved as a public road. The Applicant contends that the City has no authority to require the Applicant to design, build and pay for works off-site that are not needed for the subject property. - [11] The City's position is that they have the authority to make this request because there are official plan policies in place that clearly state there is an objective of providing an east to west connection from Delta Boulevard across the subject lands to the commercial properties to the east. The City contends that the in/out access on Kingston Road is not sufficient to service the entire commercial area. .The east to west connection through the commercial area is necessary to give access to Delta Boulevard and the signalized intersection at Kingston Road. 6 PL150782 EVIDENCE [12] Mr. Cieciura described the proposed development and referenced the revised site plan. He testified that all the standard studies were undertaken for the proposed development, including a traffic study. He testified that the Applicant has no issues with providing an easement across the north end of his property to contribute to the east to west connection across the area, and indeed, this easement/roadway is shown on the revised site plan. He said there is no dispute that the proposedrezoning is consistent with the Provincial PolicyStatement 2014 (the "PPS") and conforms with the Growth Plan for the Greater Golden Horseshoe (the "Growth Plan"). [13] The Planning Act s. 36(1) provides the City the ability to require a holding !� provision, providing that, pursuant to s. 36(2), the official plan sets out provisions relating to the use of the holding symbol. Section 15.16 of the City's official plan provides.for the use of the holding symbol (H). It states: 15.16 City Council may pass zoning by-laws incorporating holding provisions as provided for in the Planning Act to specify the use to which lands, buildings, or structures may be put at some time in the future, providing, (a)the holding symbol(H) is used only in the following instances, (i) when certain details of development have not yet been determined, or where certain conditions of development have not yet been met such as, but not limited to, development or servicing agreements with the City or Regional Municipality of Durham; (ii) .... (iii) when the level of community services and/or infrastructure is not yet adequate to support the proposed use; (iv) .... [14] The Woodlands Neighbourhood Policies s. 11.8 in the official plan states that City Council shall... (f) provide direction for transportation matters within and around the lands covered by the Northeast Quadrant Development Guidelines, 7 PL150782 (i) support shared access points between properties along Kingston Road, in consultation with the Region of Durham; (ii) promote the reduction of traffic speeds and improvement of pedestrian safety along Sheppard Avenue by implementing pavement markings and other measures, and considering "traffic-calming"techniques following the adoption of a City policy; (iii) require vehicular access, by means of easements from Delta Boulevard to Whites Road, and from Delta Boulevard easterly across the Mixed Corridor lands located east of the 'old' Dunbarton School site; and (iv) require pedestrian access, by means of easements or public walkways, from Delta Boulevard through the 'old' Dunbarton School site with connections to Sheppard Avenue and Kingston Road,where appropriate; [15] Mr. Cieciura testified that item 11.8 (f) (iii) is the most pertinent to this matter. The intent of the official plan policy is to alleviate traffic on Kingston Road by providing an east to west continuous easement through the commercial sites that would provide access to the signalized intersection at Delta Boulevard. Mr. Cieciura testified that the Applicant is not opposed to providing an easement across his own lands, but is opposed to designing and building a public road on the City owned portion of land that would complete the east to west connection to Delta Boulevard. [16] Mr. Cieciura's opinion is that the holding by-law provision Condition (iv) is not consistent with the official plan, because the removal of the H requires that a 'public f \ road' be built, whereas the official plan speaks to an `easement'. [17] Mr. Cieciura referred to a previous Board decision by Member R.J. Emo issued May 21, 2002 (PL010383; Exhibit 2, Tab 9) for the lands to the immediate east of the subject property known as 778 —790 Kingston Road. In this development, the City had also requested a holding provision, and the dedication of a 'public lane' to provide an • east to west interconnectivity between the commercial properties, among other issues. Member Emo found that there was no basis for imposing a holding provision, and that the interconnectivity between the commercial sites and the school site to the east could be obtained by other means. In this case, easements with reciprocal agreements were established through the site plan agreement. 8 PL150782 [18] Mr. Cieciura testified-that this is a similar situation and the site plan agreement provides the appropriate process for establishing easements across the Applicant's lands. [19] Mr. Cieciura said that the ability to make an east west connection to Delta Boulevard is in the control of the City. His view is that the connections should all be ' easements, as the connection on the property to the east is an easement through a parking aisle. His view is that it is not desirable to have the connection to Delta Boulevard consist of partly easements and partly a public road. [20] Ms. Wylie testified regarding the City's position. She explained that the east to ( l west connection is important to the City to establish because the future Durham Rapid Transit is intended to be constructed in a centre median along Kingston Road. The presence of the rapid transit line will restrict in and out access onto Kingston Road and full turning movements, making it important for there to be a connected driveway to allow access to Delta Boulevard and a signalized intersection for these;commercial properties. She said that this access along the north of the properties would allow the properties to operate at full capacity and would also permit greater densities to occur. [21] Ms. Wylie testified that s. 15.16 of the official plan allows the City to impose the (H) for the roadway connection to the west of the subject lands to Delta Boulevard, as outlined above in paragraph 13. Official plan policies for the Woodlands Neighbourhood !J further lay out Council's intentions for development in relation to this area. Section 11.8 (f), as described earlier,.states that City Council shall: ....provide direction for transportation matters, and, ...require vehicular access....from•Delta Boulevard easterly across the Mixed Corridor lands located east of the 'old' Dunbarton School site; .... [22] In addition, she referred to s. 11.8 (h) of the official plan that'state : 11.8 City Council shall, 9 PL150782 (h) (to) provide additional direction on implementation matters for lands covered by the Northeast Quadrant Development Guidelines, (i) through the use of the holding provisions of the Planning Act, require where necessary, proponents to enter into agreements with the City, Region and other agencies as appropriate, respecting various development related matters including but not limited to: entering into cost sharing agreements between each other where mutual shared access is necessary; providing or exchanging easements over lands where necessary; payment of study costs; and providing contributions to the cost of a downstream storm water management facility, if necessary, proponents to enter into agreements with the City, Region and other agencies as appropriate, respecting various development related matters including but not limited to: entering into cost sharing agreements between each other where mutual shared access is necessary; providing or exchanging easements over lands where necessary; payment of study costs; and providing contributions to the cost of a downstream stormwater management facility, if necessary. [23] Ms. Wylie's view is that it is this direction in the official plan that provides the authority for the City to request the holding provisions, particularly the request for the connection to Delta Boulevard. [24] Under cross-examination Ms. Wylie explained that the land that is owned by the City where the City is requiring the Applicant design and build a roadway was conveyed to the City by the developer of the Tim/Wendy's lands. The stipulation at the time that these lands were conveyed was that if this land was not used for a public road, then the land would revert back to the developer. When questioned, Ms. Wylie could not answer why the City has not simply passed a by-law and created a public road at this location. [25] Ms. Wylie said that historically the intent was to have a public ring road in the area; however, this was not shown in the 1990's official plan. It is not shown in the current official plan because of the Board decision by Member Emo that required a public lane with easements on the property to the east of the subject property. Ms. Wylie said that though a road is not shown in this location in the official plan, the official plan does speak to connectivity through this area. Ms. Wylie acknowledged that if the City wished to expropriate lands in order to establish a public road, the road would first need to be shown on a schedule in the official plan. II 10 PL150782 II SUBMISSIONS [26] Mr. Cheeseman submits that the City is asking the Applicant to design and build a road to City standards on City owned land, effectively amounting to providing a blank cheque. He said the City.is asking for a public road, as apparently they have an obligation to return the land if there is no public.road. He contends that the evidence is clear—the City owns the portion of land between the Applicant's lands and Delta Boulevard, and the official plan calls for connectivity through easements. The City can allow passage from the old school site all the way to the•City's portion of land, and could grant an easement across their land to complete the connectivity. Or, they could pass a by-law and open a public road. Mr. Cheeseman states that the official plan does not ! J contain any policies for a public road at this location, and that there is no wording in the official plan to allow a holding provision for off-site works. [27] Mr. Cheeseman submits that there is no authority under s. 34 of the Planning Act to request a highway, and the City has no authority to require the Applicant to build a 1 public roadway at this location. Mr. Cheeseman brought the Board'to various statutory excerpts in support of this•a'ssertion In effect, he said, the City is asking for a"public road contribution without'the legislative authority. ' [28] Mr. Cheeseman submits that there are other methods the City could use to get this portion of road constructed. For•example, pursuant to s. 326 (c) of the Municipal �J Act, the City could call the construction of this road a "special service" and charge the construction back to the users who benefit from the road'. Mr. Bigioni contends that this is a complex procedure and requires the majority of the landowners to agree. [29] Mr. Cheeseman notes that s.15.16 (a)(iii) of the official plan states that the holding symbol (H) is used only in the following instances; "When the level of community services and/or infrastructure is not yet adequate to support the proposed use; ..." , 11 PL150782 [30] He submits that there is no evidence that the services/roads are inadequate for the subject property to function. There is no mention that the development is premature or that it hinges on the construction of the subject road. There is no wording that Delta Boulevard must be open for the site to function, and there were no trips assigned to Delta Boulevard in the traffic study. Mr. Cheeseman said that the Planning Act requires that the City demonstrate why the holding provision is necessary and in this case, there is no demonstration of a public road as necessary to the Applicant's lands. Mr. Cheeseman submits that if the City had wanted a public road at this location then they would have put it into the official plan. [31] Mr. Cheeseman states that the key phrase in policy s.11.8 (f) (iii) is "vehicular access by means of easements...". The policy is explicit and states "easements". This policy came into effect after the decision of Member Emo who found that there was no need for a public laneway, but connectivity should be by way of easements. • [32] Mr. Bigioni disagrees with the Applicant's position. He submits that the basis for applying the (H) provision are City wide and are present in official plan s. 15.16 (a) (i) and (iii). He states that these policies clearly outline that"...when certain conditions of development have not yet been met... such as development or servicing agreements. with the City ...."; then the holding provisions can be used. The City relies on s. 15.16 (a)(i) —entering into a development or servicing agreement; and (iii) level of infrastructure is not yet adequate; to support the City's authority to impose the holding provision. [33] Mr. Bigioni submits that there is no disagreement that the east to west connection to Delta Boulevard is supported by both planners and represents good planning. He stated that the roadway requirement cannot be imposed under Planning Act s. 41 Site Plan Control, and that is why it is required as a holding provision on the zoning by-law. • ' t 12 PL150782 [34] Mr. Bigioni contends that the issue of enacting a by=law for the road is irrelevant. He said the intent is to enact the by-law as a housekeeping matter when,it is required. [35] Mr. Bigioni submits that whether the connection from the west side of the Applicant's lands to Delta Boulevard on the City owned lands is a `roadway' or an `easement' is not relevant, as either would provide for the same function. If the City granted an easement,across their lands and required the Applicant to build the road the Applicant would still be concerned about the cost of building-the roadway. He contends that the Applicant wants to put the cost of developing its site on to the taxpayers. Further, the access to the subject property will be by way of a driveway over the lands r 1 to the east which the Applicant is not obligated to pay. He contends that situation � should be taken into account when considering the equities at play in this case. [36] Mr. Bigioni's view is that the official plan policies are a more abstract expression of the planning vision. The zoning by-law implements the planning vision, but it need not be word for word. Therefore, to suggest that the authority is not present is the , wrong reading of the official plan policy. - ANALYSIS AND FINDINGS [37] The key question before the Board in this matter is whether the City has a valid holding provision, in particular, for condition (iv) of Zoning By-law No. 7437/15 that requires the.Applicant to design and build a road to public road standards on City owned property. As noted by the City, it is the cost of building the road that is at the heart of the Applicant's concern. Does the City have the authority-to require the Applicant to design, build.and pay for a road on the City's land? [38] The Applicant contends that there is no legislative authority under the,Planning Act that permits the City to require off-site works such as what is required by Condition (iv) for the removal of the H from the zoning by-law. The City's view is that the authority arises directly from the official plan policies in s. 15.16 that relate to the holding provisions. . 13 PL150782 [39] The Planning Act gives the City authority to impose a holding provision so long as the official plan sets out provisions relating to such use. In this case, the official plan states in s. 15.16 under what situations holding provisions can be used. (a) the holding symbol(H) is used only in the following instances, (i) when certain details of development have not yet been determined, or where certain conditions of development have not yet been met such as, but not limited to, development or servicing agreements with the City or Regional Municipality of Durham; (ii) .... ( ` (iii) when the level of community services and/or infrastructure is not yet adequate to support the proposed use; (iv) .... [40] The Applicant's position is that neither (i) nor (iii) applies, because the site can function without the westerly connection to Delta Boulevard. Access to the site is to be by way of the shared drive on the property to the east. Therefore it has not been shown that the holding provision is necessary for the development of the lands or the functioning of the site. There was no evidence presented at this hearing that it is necessary for traffic to connect from the subject property to Delta Boulevard for traffic flow to operate. [41] The subject property is one of a number of sites on the north side of Kingston Road between the old Dunbarton School site and Delta Boulevard that have been developed or are to be developed as mixed use sites. 'It is clear and well established by the evidence of the planners that the east to west connectivity between the old Dunbarton School site and Delta Boulevard to a signalized intersection at Kingston Road represents good planning and is in the public interest. The official plan contemplates this and has numerous references to this intended east to west connection. The official plan policies in s. 11.8 clearly outline the requirement for vehicular access to Delta Boulevard across the Mixed Corridor lands. The Applicant contends that s. 11.8 (f) (iii) explicitly states "vehicular access by way of easements...". 14 PL150782 This policy came into effect after the decision of Member Emo who found that there was no need for a public laneway, but connectivity should be by way of easements. 'The Applicant has stated that he has no objection to providing the required easement along the northportion of his site. However, as is immediatelyevident, withouth the intervening 9 piece of roadway between the Applicant's lands and Delta Boulevard, the east to west connection dead ends at the westerly lot line of the Applicant's lands. The Applicant contends that it is up to the City to provide`the easement on its own property, and further contends that it should not be a 'roadway' on the City owned land, because then there would be a `roadway' connecting to `easements'. On this point, the Board agrees with the City's submission that it is not relevant whether the connection is by a 'roadway' r 1 or an 'easement', as the function is the same. [42] The City has not provided any legislative authority, beyond that which is provided by s. 36 of the Planning Act and s. 15.16 of the official plan, to support the proposition that the City can demand a landowner to build a road on the City's own lands. The Board finds no authority within these sections of the Planning Act orthe official plan that would support the City's position. [43] .The City cannot simply require this Applicant to assume the cost of building this infrastructure simply because this landowner is adjacent to the required road and is the last property to develop in this area. The City has not directed the Board to any sections under the Planning Act that provide the authority for the City to require an Applicant to design and construct a roadway on off-site lands as a condition for a zoning by-law. [44] The Board is not persuaded that it is the Applicant's responsibility to build infrastructure on lands that it does not own, and to a standard and cost that is not known. The Board is sympathetic to the Applicant's lament that this "amounts to a blank cheque". There is no logical reason to connect the need for this portion of the connecting roadway to the demand that this landowner design, build and pay for it. The road, at this location, on City-owned lands, is the City's responsibility. 15 PL150782 [45] Both the Applicant and the City brought the Board to a previous Board Decision by Stewart, Wilkes, and Howden (City of Toronto Official Plan Amendment 333; [1986] O.M.B.D. No. 3), where the Board wrestled with the appropriateness of using holding provisions. Paragraph 113 of this decision states: On a reading of s. 35 (now s. 36)in the context of the Act as a whole, and bearing in mind its effects on private rights and public concerns, the Board finds that the following principles should be regarded in determining the appropriateness of the use of s. 35: (a) The need for the holding policies and provisions should be demonstrated; (b) Policies relating to the use of the holding symbol must be contained in �✓ the official plan; (c) The by-law in which the holding symbol is to be employed should be sufficiently complete so as to represent appropriate zoning controls for the lands when the holding symbol is removed; and (d) The permitted uses and regulations contained in the zoning by-law in which the holding symbol is to be employed should be shown to be consistent with proper principles of community planning. In this regard, it should be demonstrated that potential use impacts, conflict problems and servicing deficiencies relating to the proposal have been identified, and • that such problems are either addressed in the by-law or are capable of resolution through feasible measures within the powers of council under s. 35, s.40 and other applicable legislation, if any. [46] The Board has reviewed these established principles with respect to this dispute. Item (a) requires the need for the holding provision to be demonstrated. In this instance, the Board finds that it is not necessary for the connecting roadway or easement across the City's.lands to be in place for the subject property to function. The roadway/easement on the City owned land will support the overall official plan policies of interconnectivity through the mixed use lands but there was no evidence provided to demonstrate that the proposed use of the individual subject property is premature and cannot occur prior to the roadway/easement being established on the City owned land. It has not been demonstrated that there is a need for the requested infrastructure that warrants a condition that the infrastructure be in place before the H can be lifted. 16 PL150782 [47] The Boardis not persuaded by the evidence or the City's submissions that the official planpolicies in ss. 15.16(a)(i) and (iii) provide the City with the authority to require that that the roadway/easement on the City lands be in place prior to the use of the subject property as is required by Condition (iv) for the removal of the holding symbol. [48] The Board finds there is no legislative or policy basis for requiring the Applicant, on its own, to design, construct and pay for a roadway on the City's property that will benefit a series of landowners as well-as the City. The City can avail itself of other financial tools to assist in building this necessary infrastructure. The parties made submissions in respect of financing tools available to the City under other legislation; V however, the Board makes no findings on what tools might be available or appropriate in the circumstances. [49] The Board is satisfied, on the basis of the evidence, that Conditions (i), (ii), (iii), and (v) are appropriate for the removal.of the H. The Board is not satisfied that Condition (iv) is a valid holding provision and it should be struck. [50] The Board has reviewed the cases put before it in coming to these findings. ORDER U [51] The Boards orders the appeal by the Applicant of the conditions required for the removal of the Holding Symbol is allowed in part. Zoning By-law No. 7437/15 and conditions are as provided in provided at Exhibit 2, Tab 18 and are provided herein at Attachment 2. The Board approves Zoning By-law No. 7437/15 and upholds Conditions (i), (ii), (iii), and (v) for the holding provisions imposed by the City. Condition (iv) is struck from the Zoning By-law No. 7437/15. The City is directed to renumber the conditions to avoid a gap in the numbering sequence. . [52] Board Rule 107 states: 17 PL150782 107. Effective Date of Board Decision A Board decision is effective on the date that the decision or order is issued in hard copy, unless it states otherwise. [53] Pursuant to Board Rule 107, this decision takes effect on the date that it is e- mailed by Board administrative staff to the clerk of the municipality where the property is located. • "H. Jackson" • H. JACKSON MEMBER U If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format. Ontario Municipal Board A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248 ! . . . p U • r 4 • The Corporation of the City of Pickering OMB ORDER No. 150782 August 5, 2016 By-law No. 7437/15 Being a By-law to amend Restricted Area (Zoning) By-law 3036, 'as amended, to implement the Official Plan of the City of Pickering, Region of Durham on Part of Lot 28, Range 3, Broken Front Concession, City of Pickering. (A 4/12) Whereas the Council of The Corporation of the City of Pickering received an application to rezone the subject lands being Part of Lot 28, Range 3, Broken Front Concession, in the City of Pickering to permit the development of a commercial plaza; And whereas an amendment to By-law 3036, as amended, is required to permit such a use; Now therefore by Order the Ontario Municipal Board amends By-law 3036 as follows: 1. Schedules I and II • Schedules I and II attached hereto with notations and references shown thereon are hereby declared to be part of this By-law. 2. Area Restricted The provisions of this By-law shall apply to those lands on Part of Lot 28, Range 3, Broken Front Concession, in the City of Pickering, designated "MU-26" • on Schedule I attached hereto. 3. General Provisions • No building, structure, land or part thereof shall hereafter be used, occupied, erected, moved or structurally altered except in conformity with the provisions of this By-law. • 4. ' Definitions In this By-law, (1) "Automobile Body Shop" means an establishment engaged in repairing or painting of vehicle bodies. (2) "Building Height" means the vertical distance between the established grade, and in the case of a flat roof, the highest point of the roof surface or parapet wall, or in the case of a mansard roof the deck line, or in the case of agabled, hip or gambrel roof, the mean height level between eaves and ridge. A penthouse, tower, cupola, steeple or other roof structure which is used only as an ornament upon or to house the mechanical equipment of • any building shall be excluded in calculating the height of such building. • By-law No. 7437/15 Page 2 (3) "Car Washing Establishment" means an establishment for washing or cleaning motor vehicles for gain. (4) "Commercial Fitness/Recreational Centre" means a commercial establishment in which indoor fitness and recreational facilities such as bowling alleys, miniature golf courses, roller skating rinks, squash courts, swimming pools, exercise classes and other similar indoor recreational facilities are provided and operated for gain or profit, but does not include an arena, stadium or place of amusement or entertainment. (5) "Commercial School" means a building, or part thereof, where instruction of a skill is provided for profit and may include instruction in a trade, business, art, music, dance, cooking, athletic skill or any other specialized instruction but does not include a commercial fitness/recreation centre, a college or university. (6) "Convenience Store" means a retail store in which food, drugs, periodicals or similar items of day-to-day household necessities are kept for retail sale primarily to residents of, or persons employed or living in the immediate neighbourhood. • (7) "Day Care Centre" means: i. indoor and outdoor premises where more than 5 children are provided with temporary care and/or guidance for a continuous period but does not provide overnight accommodation and are - licensed in accordance with the applicable Provincial Act; or, ii. indoor and outdoor premises in which care is offered or supplied on a regular schedule to adults for a portion of a day but does not provide overnight accommodation. • (8) "Drive-Through Facility" means the use of land, buildings or structures, or parts thereof, to provide or dispense products or services through an attendant or a window or an automated machine, to persons remaining in motor vehicles that are in a designated stacking lane. A drive-through facility may be in combination with other uses. A drive-through does not include a vehicle repair shop, gas bar, car washing establishment or ' kiosks located within a parking garage or public parking lot. (9) "Dry Cleaner's Distributing Station" means premises used for the purpose of receiving articles or goods of fabric to be laundered or dry-cleaned elsewhere and does not include a dry cleaning establishment. (10) "Dry Cleaning Establishment" means premises in which the business of laundry or dry cleaning is housed and where the cleaning, drying, ironing, and finishing of such goods is conducted. By-law No. 7437/15 Page 3 (11) "Floor Area" means the total area of all floors of a building within the outside walls or outside finished furred partitions of the walls, but does not include a porch, non-walk-in bay window, attic, basement, enclosed or roofed walkways or loading dock. (12) "Financial Institution" means a building, or part thereof, where money is deposited, withdrawn, kept, lent or exchanged, and which may include a drive-through facility. (13) "Functional Floor" means a floor level of a building, above the ground, having a gross floor area designed for tenant occupancy. (14) "Gas Bar" means a building or structure used for the dispensing of motor • vehicle fuels and accessories and may include an accessory convenience store. (15). "Gross Floor Area" means the aggregate of all floor areas of a building or structure above or below established grade, which floor areas are measured between the exterior faces of the exterior walls of the building at each floor level but excluding any porch,,veranda, cellar, mechanical room orpenthouse, or areas dedicated to parking within the building. For the purposes of this definition, the walls of an inner court shall be deemed to be exterior walls. (16) "Gross Leasable Floor Area" means the total gross floor area designed for tenant occupancy and exclusive use, including basements, mezzanines and upper floors if any;,expressed in square metres and measured from the centre of joint partitions and from outside wall faces. (17) "Ground Floor" means the floor of a building approximately at or first above grade. (18) "Medical Office" means premises designed and used for the diagnosis, examination, and medical, surgical or physiotherapeutic treatment of human patients, and which may include pharmacies and dispensaries which are limited to a maximum of 50 square metres in gross leasable floor area, waiting rooms, treatment rooms and blood testing clinics, but shall not include overnight accommodation for in-patient care. • • By-law No. 7437/15 Page 4 • (19) "Nightclub" means a building, or part thereof, whose primary function is the provision of theatrical performances, pre-recorded music, or live musical entertainment, whether such music is provided for listening or dancing by the patrons, or any combination of the above functions, and where food and/or beverages may be served, but does not include a restaurant. (20) "Office" means a building or part thereof, where administrative and clerical functions are carried out in the management of a business, profession, organization or public administration but shall not include a medical office. (21) "Outdoor Patio" means an outdoor patron area that is ancillary to a non-residential use. (22) "Personal Service Establishment" means a building, structure, or part thereof, where services are provided and administered to individual and personal needs and where retail sale of goods accessory to the service provided is permitted and include, but is not limited to, hair care, aesthetics, health and beauty treatment, dressmaking, tailoring, shoe shining and repair, laundromat and laundry depot. (23) "Restaurant" means a building or part of a building where the principal business is the preparation of food for retail sale to the public for immediate consumption on or off the premises, or both on and off the premises but shall not include a nightclub. • (24) "Retail Store" means premises in which goods and merchandise are offered or kept for retail sale or rental to the public. This definition shall not • include any establishment otherwise defined in this By-law. (25) "Stacking Lane" means an area of land that is used exclusively for queued vehicles whose occupants are waiting to be provided with goods, materials or services, from a drive-through facility. (26) "Storey" means that portion of a building other than a basement, cellar, or attic, included between the surface of any floor, and the surface of the floor, roof deck or ridge next above it. (27) "Storey, First" means the storey with its floor closest to grade and having its ceiling more than 1.8 metres above grades. (28) "Vehicle Dealership" means a building, or part thereof, where new or used motor vehicles are displayed and/or offered for sale, rent or lease including the outside storage and display of vehicles and may include an associated vehicle repair shop. • By-law No. 7437/15 Page 5 (29) "Vehicle Repair Shop" means a premises used to conduct diagnostic services, repairs, detail and cleaning services or equipping of vehicles or in which the replacement of parts and services to vehicles are completed while the customer waits. (30) "Veterinarian Clinic" means a building or part of a building providing the services of a veterinarian, and facilities for the medical treatment, examination, surgery, diagnosis, grooming, general health care, and • observation of domestic animals and birds. 5. Provisions (1) Uses Permitted ("MU-26" Zone) No person shall within the lands zoned "MU-26" on Schedule I attached hereto, use any lot or erect, alter or use any building or structure for any purpose except the following: (a) Bake Shop (b) Commercial Fitness/Recreational Centre (c) Commercial School (d) Convenience Store (e) Day Care Centre (f) Drive-Through Facility (g) Dry Cleaner's Distributing Station (h) Financial Institution (i) Medical Office (j) Office (k) Personal Service Establishment (I) Restaurant (m) Retail Store (n) Veterinarian Clinic • By-law No. 7437/15 Page 6 (2) Uses Prohibited ("MU-26" Zone) The following uses shall be prohibited within the lands zoned "MU-26" on Schedule I attached hereto: (a) Car Washing Establishment (b) Gas Bar (c) Vehicle Dealership (d) Vehicle Repair Shop (3) Zone Requirements ("MU-26" Zone) No person shall within the lands zoned "MU-26" on Schedule I attached hereto use any lot or erect, alter or use any building or structure except in accordance with the provisions as set out in the following provisions: (a) Building Location and Setbacks: (i) No building, part of a building, or structure shall be erected outside of the building envelope illustrated on Schedule 11 attached hereto; (ii) No building or portion of a building or structure shall be erected within the building envelope shown on Schedule II • attached hereto unless a minimum of 40 percent of the entire length of the build-to-zone, adjacent Kingston Road is occupied by a continuous portion of the exterior wall of the building or buildings containing the building interior; (iii) A storey having a minimum gross leasable floor area of 550 square metres above the first floor shall be provided within a building located within the area shaded on • Schedule II attached hereto. (b) Building Height: Minimum 6.5 metres • By-law No 7437/15 Page 7 (c) Floor Area Limitations: (i) Maximum gross leasable floor area for 2,600 square metres all uses: - , (ii) Maximum gross leasable floor area for LL 1,000 square metres all medical offices: (iii) Maximum gross leasable floor area for 1,000 square metres Restaurants: (d) Parking Requirements: (i) For all permitted uses, parking shall be provided and maintained on lands zoned"MU-26" on Schedule I attached hereto, at a minimum rate of 4.5 spaces per 100 square metres or part thereof of gross leasable floor area; (ii) Despite section 5.(3)(d)(i) of this By-law, no additional parking shall be required for the first 550 square metres of gross leasable floor area provided on a functional second storey; (iii) Outdoor patios must not encroach on or eliminate any required parking or loading space, driveway or aisle; (iv) Despite section 5.(3)(d)(i) of this By-law, no additional parking is required for an outdoor patio; (v) Despite sections 5.21.2g) and 5.21.2k) of By-law 3036, as amended, all entrances and exits to parking areas and all parking areas shall be surfaced with brick; asphalt or concrete, or any combination thereof; (vi) Sections 5.21.2a) and 5.21.2b) of By-law 3036, as amended, shall not apply. " (e) Drive-Through Facility Requirements: (i) A maximum of one drive-through facility shall be permitted; (ii) A stacking lane, order and menu boards, and pick-up windows associated with a drive-through facility use shall not be located within 15 metres of a Residential Zone; (iii) Drive-through stacking lanes shall not be located between a building(s) and Kingston Road; , By-law No. 7437/15 Page 8 (iv) A minimum of 8 vehicle queuing spaces before the order board and 4 vehicle queuing spaces between the order board and pick-up window shall be provided. (f) Special Regulations (i) The lot line abutting Kingston Road is deemed to be the front lot line; (ii) Patios shall be permitted no further than 25 metres from the front lot line and shall be permitted outside of the building envelope and built-to-zone shown on Schedule II attached hereto; (iii) An outdoor patio shall not exceed fifty percent (50%) of the gross floor area devoted to patron use of the associated restaurant with which the outdoor patio use is permitted; (iv) The use of musical instruments, mechanical or electrical music equipment, and dancing, theatrical performances or audiovisual presentations, music concerts and shows, shall not be permitted in areas designated for outdoor patio use; (v) A minimum of 50 percent of the area of each building face along Kingston Road shall be constructed of unencumbered transparent materials; • (vi) Garbage is to be contained within a fully enclosed structure attached or integrated into the buildings. (g) Open Storage: (i) All uses, other than parking, shall take place entirely within enclosed buildings or structures with no.outside storage or display. _ (4) Holding Zone Provisions ("(H) MU-26"Zone) (a) Uses Permitted ("H) MU-26"Zone) Until such time as the "(H)" Holding Symbol is lifted, the lands shall not be used for any purpose other than two detached dwellings and accessory uses, subject to the provisions of Section 9 of By-law 3036. By-law No. 7437/15 Page 9 (b) Removal of the "(H)" Holding Symbol The "(H)" Holding Symbol shall not be removed from the "MU-26" zone until completion of the following: (i) The Owner has entered into a Site Plan/Development Agreement with the City and the Region of Durham; (ii) The Owner has satisfied all technical and engineering requirements for the piping of the Amberlea Creek tributary to • the satisfaction of the City and the Toronto and Region Conservation Authority; (iii) The Owner has made a financial payment as compensation • for the piping of the Amberlea Creek tributary to the satisfaction of the Toronto and Region Conservation Authority; Amended by OMB (iv) The Owner has satisfied the.City with respect to cost Decision/Order recovery for the Northeast Quadrant Study, and for the Delta No.PL 150782 August 5,2016 Boulevard storm sewer over sizing if required. 6. By-law 3036 By-law 3036, as amended, is hereby further amended only to the extent necessary to give effect to the provisions of this By-law as it applies to the area set out in Schedules I and II attached hereto. Definitions and subject matter not specifically dealt with in this By-law shall be governed by the relevant provisions of By-law 3036, as amended. 7. Effective Date This By-law shall come into force on the day it is passed pursuant to an Order of the Ontario Municipal Board. Note: Final Written Decision of the Ontario Municipal Board delivered by H. Jackson was issued on August 5, 2016. • • • . I . • 74.0m (H) MU-26 co • n c,j PART OF LOT 28 CO 8.F.C. RANGE 3 LLJ n i635 O P� PG ' N ' SCHEDULE I TO BY-LAW 7437/15 APPROVED BY THE ONTARIO MUNICIPAL BOARD FINAL DECISION ISSUED AUGUST 5th, 2016 I i f j i E . fl CO 1.5m—•1 • Q c J N N L1_1 - 1.5m n °3 OPT S-\0 0G BEE BUILD—TO—ZONE 11_1 BUILDING ENVELOPE N J SECOND STOREY REQUIRED AS PER SECTION 5. (3)(a)(iii) SCHEDULE 11 TO BY-LAW 7437/15 APPROVED BY THE • ONTARIO MUNICIPAL BOARD FINAL DECISION ISSUED AUGUST 5th, 2016 . •