HomeMy WebLinkAboutBy-law 4621/95 R 950313
V 950572
Ontario
Ontario Municipal Board
Commission des affaires municipales de I'Ontario .....
SCHEDULE"A"
TIlE COIQ'0RATION OF 'FILE TOWN OF PICKEIIING
Being a By-law Ia amend Restricled Area (Zonin§] By-law 3036, as arnendcd by
By-laws 2641/88, 3254/89 and 4602/95, IO implcmcn~ the Official Plan of
'l'own of Pickcring I)isiric[ Phmnhlg Arua, Rc~inn o1' Durham, hi Parl or I.ol 24,
WI IEf~.EAS thc Council of thc Corporation of thc Town of Picketing passec~ By-law 264
am~ndin~ By-law 3036, to pcrmi~ d)¢ dcvcJoplll¢lt[ O~ spcclal purpose commcrclal uses nn
sub, oct Jands, bcin~ Pan or Lo~ 24, Conccssion }, in {he Town of Pkkcrin~;
A~D WIIEI~EAS thc Council o~ H~e Corporation of Ibc Town o~ Picker~ng p~sscd Dy-law
3254/89, amending Dy-law 264I/8S, lo rcvJs¢ p~rkJng rcquircmenls and pcrmitlcd uses on a
Ia R:nhcr ~mcnd By-la~ 3036, as amended by By-laws 2641/88, 3254/89 and 4602/95 Ia pcrmh
*fh¢ prov[sions of [his By-law shall apply to dtos¢ lands in part of Lo[ 24. Ca~ccss{o~ I,
in Ih'. Towlt o1' Pickcring, dcsignalcd "SC-3Y' and "SC-34" on Schcdulc I aHachcd
hcrclo.
No building, ianj or paa thcr¢o£ shall hcrca£1¢r bc used, occupied, crcclcd ti~ovcd or
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(2) "Busin¢55 Officc" ~hall meal) a building or p~rl of' a buitding in which thc
management or direction of a busi~e~s, a public or prival¢ agency, a brokcrag: or
a h~bour or Fraternal organi~fion is carried on and wlfich may ~nciudc
in which indoor recrcaliona; faciihJcs such as bowling alleys, mimatur¢ golf
cou~ses, b~ngo facilities, gymnast~c~ fac~t~es, ~o[~ skat{ng zinks, squash courts,
(4) "Duplicalin~ gimp" shall mean a par[ of a building where such ilems as
and skill,
facilities offered are po~l tabl,~s, billiard lables, b~go facilHies or ~wlin~ alleys;
ibc display and whol~alc und retail saJc o~ building ma[erials, hardware or
(lO) "Liehl l'.'~achi~er',, and Equi?~enl Su?lier" shall mean a building or part of a
building in which office furmlurc al~d machines, ~arpe[ arid dlapury clcanil;g
~ cquipmcm; pa:ntin~, gardcoing aJ~d plumbing cqumpmcot; small hand a~id powc~
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be used as the sit~. of a building, or a group of bu$1dings, as the case may be,
Iogether whh any accessory buildings or structures, or a punic park or open space
on a registered plan of subdivision;
(]2)' "Place of AmusemenVEmenninmenf' shall mean a building or part or a building
in which facilities are provided for amusemem ar ente~ai~mcm pu~oscs, a~d
(13) "Professbnal Off~ shall mcun a building or pan of a building in which
medical, legal or other professional se~ice is perforated or consullallon given,
defined in section 224 (9)(b) of The Municipal Ach R.S.O. 1990, Chapter M45,
prepared and or,red or kepi For retail sale to the public fur immcdialc
(15) "Restauran~ - Ty~e F" shall mean a building or pa~ ora building where food is
5 PROVISIONS ("SC-3Y' and "SC-34" Zone)
(1) Uses Pcrmiued ("SC-33' Zone)
No person shall, within lhe lands designated "SC-33" on Schedule J altached
exccpl the following:
(a) business office
(b) duplicaling shop
(c) financia~ inslhution
(d) furniture or major appliance store
(c) homc improvcnlcnl comte
light machinery and equipmenl supplier
(g) p/ncc oF nmuscnlenl/colcrlainmcn[
(h) professional office
(i) re.~t~urant - type 11
/
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L)~es P~rmiHed {"SC-34" Zone)
'Ho person shall, withil~ the lan~s
cxccpl the following:
(a) business of~cc
(b) commercial recreation ~slablishmen~
(c) dupiic~tin~ shop
(d) ~nancia]
(c) ~urniture or major appliance store
(g) light machine~ and equipment suppiicr
Ct) pro~¢ssional
Zonc Rcmzircm~nts ("SC-33" and "SC-34' Zone)
No person shall, within the lands designated
(a) BUILDING R~STRJCTIONS:
(i) Building Location and ~ctbacks:
A Buildings and str~cturcs shall compl)r with th~ mJnhnum
~ A minimum o~ 50% o~'the length o~ H~¢ build-to-zone
(ii) Building Height:
Maximum: 4 storeys or ~ 3.0 metres
(iii) Lot Coverage (mJnin~um): 20 percent
(b) PARKING REQUIREMENTS:
than 5.3 metres in length for the ~empora~ parkin~ o[a v~hJclc, bul
(ii) There shall be provided and maintained on Iht lands designated
"SC-3Y' on Schedule i a~achcd hcre[o, a minim~m o[ 168 parking
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(iii) There shall be provided and maintained on the lands dcsignaled
"SC-34" on Schedule I attached hereto a minimum of 30 parking
spaces per 93 square mc~rcs gross leasable floor area or part Ihereof;
(iv) Nolwilhstanding Clause 5.3.b(iii) above, parking for a bingo lhcilib,
"SC-34" on Schedule I allached herelo shall be provided and -"
maintained on those ~ands al a minimum of one parking space per 9
square metres o£ gross leasable Iloor area or part {hereof;
(v) Clauses 5.21.2a), 5.21.2b), 5.21.2c), 5.21.2d) and 5,21.2e) of By-Mw
3036, as amended, shall n:)t apply to lands designated "SC-3Y' und
"SC-34" on Schedule ~ aBi~chcd hercto;
(vi) Nelwilhstanding clauses 5.21.2g) and 5 2].2k) of By-law 3036, as
amended, all entrances and exits lo parking areas and all parking
areas shaft be surfaced wilh brick, asphalt or concrete, or any
combination [hereo£
(c) OPEN STORAGE: all uses, olher Ihan parking, shall
take place entirely within enclosed buildings, r :;:u,ct rc~ w~th no oulsidc
storage or display.
(d) SPECIAl. REGULATIONS:
(il A max/mum of one restaurant - type F shall be permitted on tile
lands dcsignaled "SC-3~" ,)Il Schedule I auachcd hereto;
(ii) Thc aggregate of Ibc gross leasable floor area of all business ol'f~ccs,
duplicming shops, financhd institutions and professional offices silall
not exceed 50 pcrccm of tile gross leasable floor area of all buiklin~s
(iii) The gross leasable flocr area of each commercial recreation
establishment, duplicating shop, furniture or major appliance store,
home bnprovcmcnt centre, light machinery and equipment supplier,
- type B shall not bc less than 278 square mclres;
(iv)for tbe purpose of calculating lot coverage, lands imended for lhlure
conveyance to the Town for public roadway purposes shall be
6 JIV-I,AW 2641/88. AS AMENDED
By-law 2641/88, as amended by By-laws 3254/89 and 4602/95 is hereby Ihrther amended
to the cxlent necessary to give effect to the provisions of Sections 7 and fi herco£
7 TEXT AMENDMENTS
(1) Section 2 of By-hlw 2641/88, as an!ended, is hereby mncndcd by dclcling thc
words 'SC-t?", and "SC-20" and "SC-."I" From thc second and third lines,
Section 4 (12) of By-lav,, 2641/88, as amended, is hereby deleted,
5 (Il(b) is rcnunlbcrcd as Section
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(4) Section 5.(I)(c) of Bylaw 2641/88, as amended, is hereby tenumbered as Section
5.(I)(b), and amendcd by delefin[, the words "and "5C-21' from the thle and irom
d)e first and s~cond lines; ·
(5) Section 5.O)(d) oF By-law 264 l/DS, a~ amendcd, is hereby de]~ted;
(6) Section 5.(Il(c) oF By-law 2641/88, as amended, is hereby renumbered as Section
5.(t)(c), a~d ~mcndcd by:
(al dctct~ng Ibc words "SC-I?" ami "SC-20", and "SC-2I"
from Ihe first and s~nd li~es;
(b) ~eleiin~ the wor~s "SC-1T' and 'and "SC-21" from Paragraph (ii)A;
(c) d*leting Ih~ words"and "SC-20" ~rom Paratrapb
(d) deletin~ Ib~ words a~d n~mbers "SC-]7 2t~", "5C-20 46" and "SC-2I
13~" from the [abl~ in Paragraph (iv)B
(el dclelin~ Paragraph (iv)C
(9 de~ting Paragraph
(gl renumberJng P~ragraph (v)B as Paragraph (v)A
(h) renumbering Paragraph (v)C as Paragraph
(il deJelmg Paragraphs (v)D and
$CIIEI)ULE AMENDMtCN ~',q
Schedules I and Il to By-law 2641/88, as amended, are hereby amended by ddcting
therefrom a~l reference to the lands desigaoted "SC-17", 'SC-20' ac, d "SC-2W mx
Schcduh: I of thc said By-law.
This By-law slmll take effec[ from the date of the Omario Municipal Board order amending
Restricted Area (Zoning) By.law 3036, as mended by By-laws 2641/88, ~254/89 and
4602/95, in accordance herewith.
7
' SC-34",
,¢~,,
SC-33
F'.¥///~' BU,L~-TO zo.J: ,/1%
SCHEDULE ]: TO BY-LAW . 4621/95
AS MADE BY
ONTARIO MUNICIPAL BOARD
ORDER DATED
(O.M.B. FILE )
ORDER ISSUE DATE
R 950313
i SEP 1 8
V
· Orffat'io TOWN flF pl£K~r: !~, '~
)~ ~ =0~,r~,.~'~:~ Ontario Municipal Board SE[= 2 0 1996
...... - Commission des affaires municipales de I'Ontario
CLERK'S DEPT
The Liverpool Wast Community Association has
appealed to the Ontario Municipal Board under
subsection 34(19) of the I ni.E[agDjD, g_~, R.S.O.
1990, c.P. 13, against Zoning By-Law 4621/95 of
the Town of Picketing
OMB. File No. R950313
The Liverpool West Community Association has
appealed to the Ontario Municipal Board under
subsection 45(12) of the Plannino Act. R.S.O.
1990, c.P.13, from a decision of the Committee of
Adjustment of the Town of Picketing which
granted an application by Emix Ltd. numbered
A-83/95 for a variance from the provisions of
By-law 3036, as amended b~.' By-Law 2641/88,
respecting 1099 Kingston Road
OMB File No. V 950572
COUNSEL:
P. Wyger for The Town of Pickering
J. G. Cowan for Top Rank Bingo
H. Elston for Emix Ltd.
A. Brown for Liverpool West Community Association
DECISION delivered by C. A. BEACH and ORDER OF THE BOARD
The two matters before the Board relate to two appeals by the Liverpool West
Community Association (the LWAC), Town of Liverpool (the Town), Regional
Municipality of Durham. The appeals are against Zoning By-Law No. 4621/95 passed
by Council for the Town and a decision of the Committee of Adjustment of the Town
which granted an application for a variance from By-Law No. 3036, as amended by
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By-Law No. 2641168. The appeals are detailed in the Title of Proceedings.
Both appeals relate to specific land parcels located south of Kingston Road,
north of Highway No. 401 and immediately east of Dixie Road. The land parcels are
currently zoned Special Commercial (SC). The land parcel zoned SC-l? is largely
occupied by a furniture mall, the SC-16 zoned land parcel is occupied by a
restaurant and the SC-19, SC-20 and SC-21 zoned land parcels are currently vacant.
Zoning By-Law No. 4621/95, if approved, will rezone the more easterly land
parcels which are zoned SC-20 and SC-21, to a SC-34 zone and the land parcel
zoned SC-17 to a SC-33 zone. The land parcel zoned SC-16 is affected only by the
granted application for variance which is under appeal. The SC-19 zoned lands are
immediately north of the SC-20 and SC-21 zoned lands and abut Kingston Road,
The SC-19 zoned lands remain vacant and are not part of the applications before
the Board.
The subject By-Law consolidates the existing permitted uses on the land
parcels zoned SC-17, SC-20 and SC-21. It also adds as permitted uses to these
three land parcels, restaurants, places of amusement/entertainment and commercial
recreational establishments. Additionally, it implements standards and design
guidelines recommended by the Town Centre West Urban Design and Land Use
Study. This study will be referred to later in this decision.
The appeal of the subject By-Law relates to a development proposal with
respect to the land parcel zoned SC-34 by the subject by-law. Top Rank Bingo
proposes what was described as an upscale bingo operation on the SC-34 zoned
parcels. It would be housed in a single 1,650 sq. m. building with a 650
maximum patron capacity. A single storey building with a design height of 6.5 metres
is proposed. However, architecturally, it would be designed to look like a 2 storey
building. It would be located at the north end of the land parcel and would be
separated from Highway No. 401 by a car park consisting of 190 parking spaces.
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iSSUeS
Based on the evidence adduced, the following issues with respect to the
appeal of the subject By-Law are identified: -'-
1. The land parcels are located within an area designated "Special Policy Area
A (Pickering)" by the Durham Regional Official Plan (the DROP). The intent
of this special policy is to maximise the area's highway exposure as a
mainstreet and gateway to the Region. The appellant's position is that a
single building with its attendant car parking area, serving as a bingo facility,.
and occupying all of the area zoned SC-34, will not establish a "gateway
presence".
2. The site is subject to the Town of Pickering Official Plan (the District Plan)
and the Woodlands Community Plan, Part A (the Community Plan). It is
designated "Highway Industrial-Commercial" within which "special commercial
uses" may be permitted. The thrust of the appellant's position is that a "bingo
facility", does not conform to the relevant policies of the official plans.
3. The proposal contravenes the guidelines established in the Town Centre West
Urban Design And Land Use Study (the Study).
4. The traffic and parking study is flawed, and the parking provided for the
proposed bingo facility is insufficient.
With respect to the appeal of the granted application for a minor variance, the
site is zoned SC-17 and is occupied by a restaurant. There is a single issue:
1. The site requires 288 parking spaces and only 187 are provided.
Existing land use
The site is located south of Kingston Road and east of Dixie Road. Kingston
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Road is a major arterial road. This arterial road separates a residential
neighbourhood on its north side from the subject land parcels. East of the site are
the Walnut Grove Plaza, automotive/commercial development and a major commercial
plaza (supercentre) which abuts Liverpool Road. This road is a major north/south
arterial road which provides access to Highway No. 401. These existing
developments relate directly to Kingston Road, and in the case of the supercentre,
also to Liverpool Road. Abutting the subject site on the east but immediately north
of Highway No. 401, are industrial lands which include the Schindler Elevator
buildings.
Highway No. 401 forms the south boundary of the site.
To the west of the site are the Oli~,e ~rcl~t t~estaurant and a furniture mall.
now referred to as the Bridgepoint Plaza. Further west (west of Dixie Road) is an
existing multi-movie complex.
The subject lands with respect to the zoning appeal (the existing SC-17, SC-
20 and SC-21 zoned lands), are owned by Emix Holdings Ltd. (Emix), which is also
the applicant with resl:®ct t,) the two matters before the Board. The Olive Garden
Restaurant occupies the lands zoned SC-18. These lands were part of the Emix
lands. The granted application for a minor variance which is now before the Board,
results from a change in ownership of the Olive Garden Restaurant site (SC-18
zoned lands). Because this site is now legally separated from the original Emix land
holdings, new parking standards apply. The granted variance provides relief from
the required parking standards.
Structure of Planning Documents
There is a tiered approach to the planning documents which are pertinent to
the matters before the Board. The DROP is the upper tier plan, and in its policies,
set out the planning vision for the Region. The lower tier plan, which is the District
Plan for the District Planning area of the Town of Pickering, contains more detailed
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policies relating to the use of land, distribution of densities, housing mix,
transportation, open spaces, recreation, community services and urban design. The
policies of the District Plan have to be in conformity with the provisions of the
DROP. -"
The District Plan consists of two parts. Part 1 sets out general development
policies for the Town. Part II consists of Community Plans which are incorporated
into District Plans by amendment. Specific land use designations and detailed policies
are contained in the Community Plans. The Pickering District Planning Area is
divided into eleven Planning Communities and Hamlets. The subject site is located
in the Woodland Community Planning Area which is Amendment No. 6 to the District
Plan.
The District Plan states in part that, prior to major development taking place,
Development Plans may be prepared to guide the preparation of zoning by-laws, site
plan agreements, etc. Although Development Plans shall be adopted by the Town
Council, they are not ministerially approved documents. A Development Plan exists
for the Woodland Community.
The lands in question are identified as "Special Policy Area A (Pickering) in
the DROP and designated "Highway Industrial Commercial" in the Woodlands
Community Plan, Part A: Kingston Road-Highway 401 Corridor-Dixie Precinct.
In my view, the tiered approach to land use planning in the Town, indicates
that development proposals are subjected to a scrutiny that is systematic and
detailed.
Mainstreet and Gateway
Section 18.2.1 of the DROP, identifies the lands in question as within Special
Policy Area A (Pickering). This area extends from the Scarborough/Pickering
boundary in the west, to Pine Creek in the East. Pine Creek is just west of Liverpool
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Road. Over this east to west extent, Special Policy Area A includes lands bounded
by Highway No. 401 on the south and Kingston Road on the north. The policy
governing Special Policy Area A states:
"This area presenW contains a mixture of resider~al, retail, personal sewice end indus~al uses.
The policy of ~is Plan is to me,raise ff~e area's highway exposure as a mainstreet and gateway
to the Region. Development shall be intensified in a manner that will not adversely affect similar
development within the Main Cen~'al Areas of the Town of Picketing. The improvement of ~
visual impact from Highway 401 and Highway 2 shall be a major consideration in the development
of this area.
The question is, does the proposal falls within the ambit of this policy? In
responding to this question, I note the evidence of the Town's planner that the
Special Policy Area is not necessarily defined by one development. I am also of that
view. The mainstreet and gateway, as I understand it, is represented by the sum of
developments within the corridor noted as Special Policy Area A. From my review
of the plans filed, the development will certainly be visible from Highway No. 401;
and if the proposal is not screened by the development which can occur on the
v~_cant parcel immediately north of the subject lands, it will also be very visible from
King,ton Road. Also, in my review of the plan and elevations of the proposed
structure, and my comparison to filed photographs of existing development in the
vicinity, allowing for the limitations of such a comparison, the architectural appearance
of the proposal is no less imposing than existing development, and could add to the
visual impact of area. Equally important, given the use proposed, the development
could add to the animation of the area.
I find, therefore, that the animation that can be expected from the use that is
" proposed, and the sense of arrival which the architecture of the proposal will lend
to the area, will enhance the appearance of the area and will promote the intent of
a mainstreet and gateway to the Region.
Conformity to the District and Community Plans
Not surprisingly, the land use planners who testified in support of the
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application, and the land use planner who testified in support of the LWCA, interpret
the policies of the District and Community Plans, differently. The considerable
difference in the two opposed testimonies, in my view, stems from the fact that the
term "bingo facility", is not specifically mentioned as a use that may be permitted in
either of the Regional Plan, District Plan or the Community Plan. And, further, their
opinion that the proposed development does not adhere strictly to the guidelines
established in the Study.
In my analysis of the conformity of the District Plan to the DROP, I note that
commercial-recreational uses, is not a new use that is "popping up" for the first time
in the planning documents that are relevant to the Town. I note that such uses are
mentioned in the District Plan, starting at page 16, which states:
SC. INDUSTRIAL
5C1. Indpstrial land Use Cateaodes
The follo,~ng indust]'ial land use categories shall be incorporated into Community Plans...
Other Uses...
(iii) uses that are possibly more suitable in industhal areas than in commercial areas
including veterinary clinics, union halls or ciub headquarters, automobile sales and
se~ce establishments, and commercial-recreational uses such as cufl'mg rinks and
arenas, funeral municipal homes, and;... (u~ertin~ng ~l~led)
I also refer to the following commercial policy in the District' Plan. Starting at page
12, it states:
5B. COMMERCIAL
5B1. General Develooment Policies
.... Special Purpose Commercial ,N'eas shall serve those specialised needs of the residents of the
Town on an occasJonal basis with services and facilities which consume larger parcels of land and
require exposure to ~'affic.
My review of the planning documents indicate that the area is designated "Highway
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Industrial Commercial" and that "Special Purpose Commercial" uses may be
permitted. The evidence also indicates that there is an existing mix of industrial and
commercial uses surrounding the subiect lands which are indicative of the mixed use
designation. Given the existing uses in the vicinity and the nature of the use
proposed, I find that the use proposed is compatible with the land uses in the
vicinity.
I note that although the District Plan does not specifically address
Industrial/Commercial uses as a separate planning entity, it does contain polices
which address specific INDUSTRIAL and COMMERCIAL uses. Therefore, in my
view, lands that are designated "Highway Industrial Commercial", cannot be
completely divorced from the industrial and commercial policies of the District Plan.
Therefore, I look to the i~3dustrial and commercial policies in the District Plan, for
guidance with respect to lands designated "Highway Industrial Commercial".
Policy 5Cl(f)(iii), quoted above, makes reference to commercial-recreational
uses. Although it does not specifically mention "bingo facilities" as a use, (the closest
reference is an arena), bingo, in my view, does qualify as a commercial-recreational
activity. In the same vein, the Community Plan recognises the lands in question
as a Special Purpose Commercial Area. And, the District Plan, in policy 5B1 also
quoted above, states that special purpose areas shall serve the specialised needs
of residents with services and facilities that consume larger parcels of lands and
require exposure to traffic. The proposal before me, based on the evidence and
exhibits filed, certainly fits the planning requirements of a Special Purpose
Commercial Area.
In my view, the planner for LWAC, in support of her contention that the
proposed use does not conform to the relevant Plans, has interpreted the policies
of the District and Community Plans too narrowly. On this point, I take support from
a judgement of the learned judge, Saunders J, found at: Bele Himmell Investments
Ltd. v. City of Mississauoa (1983), 13 O.MB.R. 17. At page 27, it states:
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"Official Plane are not statutes and ~ould not be construed ae such.... In ~uc~ e document there
will almost inevitably be inconsistencies and uncertainliea when considered in light of a ~pecific
proposal. It is the function of the Board in the course of considering whether to approve I by-iew
to make sure that it conforms with the Official Plan. In doing so. fie Board Ihould give to the
Official PIILq a broad liberal interpretation w~ a view to furthering Itl policy objec~'~.,."
On the basis of the preceding, I find that the application conforms to the intent of
the relevant Official Plans.
Town Centre West Urban Design And Land Use Study
According to the testimony of the planner mainly responsible for the
preparation of the guidelines established by the Study (the Guidelines), the genesis
of the G~:idelines was the development applications requesting changes to the current
official plan designations, to permit a broader range of uses. Council, instead of
continually reviewing individual development applications, opted for a comprehensive
land use planning exercise for the Guidelines Study Area, on which development
policies can be based. The Study Area,. is the Highway 401 corridor between
Kingston Road, Highway 401, the Canadian National Railway right-of-way at the west
and Pine Creek at the East. Pine Creek is west of Liverpool Road.
The objective of the Guidelines according to the evidence of the planner,
was to seek a consensus among the various stakeholders regarding the uses for
each property, and the urban design guidelines for each block in the Study Area. In
building this consensus, various modifications were made to the initia~
recommendations. As an example, participating ratepayers were strongly opposed to
the extension of Dixie Road as a full arterial connection through the study area to
Liverpool Road. As a result, this option was abandoned. The point I gleaned from
his evidence, is that no one party got all that they wanted entered into the
Guidelines.
I will not dwell on the process adopted for this study in any detail, or the
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basis for its various recommendations, for, in my view, they are not particularly
germain to my findings. Essentially, I view the study and its recommendations
reached as what they are. They are purely Guidelines, nothing more and nothing
less. This point was particularly underlined by the testimony of the planner
responsible for the preparation of the Guidelines. He testified that the Guidelines are
meant to be flexible in implementation.
Guidelines, in my view, do not seek to impose a spech"~c standard or condition.
They are not edicts, in the form of '*Thou shall do or not do". Instead, guidelines,
in a land use planning context, imply general and flexible standards in order to
achieve a reasonable and sensible level of compatibility with respect to a planning
direction or vision for a given area. More over, there is language used in the
Guidelines which reflects the flexibility in approach of which I speak In reference
to the Mixed Use Regional Commercial designation recommended for the subject
lands, it states on page 100 of Exhibit 7:
*This designation is dominated by full retail and office commercial acUvities which serve both the
immediate Town Centre West Community and eu~Tounding neighbou~oods and a larger customer
base drawn to uses of regional significance (e.g. movie theatres, restaurants, home improvement
etc.,) which are visited on a occasional basis, and which may require distinct {~onino standards
relatino to floor Space, parkino, etc..."(Em~sis ~
Perhaps, though, the best example of the flexible approach that should be
accorded to the Guidelines, is contained in a passage on page 108 of Exhibit 7. It
states in part:
"In a similar manner, the guidelines contained in this document seek to guide development toward
a town cent;e characte*' by controlling ~uch physical aspects as building heights, location on
" blocks, vehicular acce'~-,s and the like, but not ao stfingen~ as t(~ force only one desi¢3n aolu~on
on each ;)arcel of land." (~m~ ~
The flexibility of the guidelines is further emphasised on page 109 of Exhibit 7.
Assumption 8, states:
The guidelines proposed in b4is report are intended to establish basic characteristics for this
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cornm[mity, and ~ be interpreted .. cornerstones for furl~er standards to be impo~ed Ihrough
future zoning by-law amendment.
The point of the foregoing, is that although the development proposal exhibited
as Exhibits 12 and 13 differ from the Guidelines with respect to height, density and
parking, in my review, the differences reflect the fact that the proponent is
responding to guidelines and not to hard and fast technical standards that one would
find in a zoning by-law. Further, staff and council as is their wont, examined the
proposal and were satisfied that, the recommended development thrust of the study
area was maintained by the proposal. In my view, having considered all of the
evidence, the proposal responds to the flexibility that ia inherent in the Guidelines
and do not stray from the intended basic planning characteristics of the Guidelines
in such an egregious manner that it would cause me to deny the application strictly
on this very point.
Traffic and Parking
Here, I address not only traffic and parking with respect to the subject
proposal, but also the extension of Dixie Road, south of Kingston Road. The current
DROP identifies the extension of Dixie Road south of Kingston Road, as a Type "B"
Arterial Road with a right-of-way width of at least 30 metres. At the request of the
LWAC, the Minister of Municipal Affairs and Housing, has deferred its consideration
of the south extension of Dixie Road as a Type "B" Arterial Road. As a result, this
particular length of road is not part of the approved DROP. Town staff, in consort
with LWAC, supports the elimination of the Arterial Road and its replacement with
a local road with a right-of-way width of 20 metres.
The Town's position is also supported by a traffic impact study prepared by
Marshall Macklin Monaghan (MMM), a consulting firm acting on behalf of Top Rank
Bingo. The consultant who ~prepaced the study, testified that from a geometric point
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of view, given the required arterial design standards and the constraint imposed by
the nearby restaurant, it would be almost impossible to layout a Type "B" Arterial
Road south of its intersection with Kingston Road. He also concluded from his
analysis, that a Type "B" Arterial Road in this location, would achieve few of the
desirable objectives of this type of road. He pointed out the difficulty (and
unlikelihood) of extending Dixie Road northwards because of environmental and costs
constraints. There is, therefore, a distinct possibility that it would not provide access
across the municipality and would therefore limit through traffic. He also pointed out
that the south extension of Dixie Road, would be running parallel and close to
Kingston Road, thus limiting its usefulness as an alternative route to Kingston Road.
Further, in his testimony, he noted that the number of traffic lanes on Highway 401
will be increased to 12 lanes across the length of the site. This will syphon traffic
off Kingston Road, which in turn will increase the reserve traffic capacity on Kingston
Road, and further militate against the need for a Type "B" Arterial Road in such
close proximity to Kingston Road.
In an attempt to get the Region's perspective on the extension of Dixie Road
as a Typ(~ "B" Arterial Road, I requested that a representative of the Region appear
and testify on this matter. A representative did. Having heard his testimony, I was
not convinced that an Arterial Type "B" Road was needed or that the Region was
"full square" behind the subject extension. Besides, it was the testimony of the
planner for the Town and the Region's representative, that there is ongoing
discussions with the Region with respect to the elimination of the Dixie Road
extension as an Arterial Road. Both also testified that the deletion of Dixie Road
southwards as on Arterial Type "B" Road could be supported, provided that
appropriate traffic signal spacing on Kingston Road can be achieved. I was assured
by the evidence of the Town's planner and the traffic consultant that the appropriate
traffic signals are a practical proposition, and can be implemented.
In the light of the foregoing, it just does not make any sense for the Town
to protect land for a Type "B" Arterial Road. The need for it has not been justified.
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V 950572
Further, it would be almost, if not impossible, to construct such a road to the
required standard at its intersection with Kingston Road, and there are other more
feasible options available. The option, which in my view, is preferable, is the one
supported by the Town, which would extend Dixie Road as a local 20 metre wide ' -"
road, and construct traffic lights at the Kingston Road intersection with Walnut
Avenue east of Dixie Road. The planner for the Town testified that the owner of the
Walnut Grove Plaza, located at the southwest corner of the Kingston Road/Walnut
Avenue intersection, has advised the Region and the Town that he is prepared to
contribute to the cost of the traffic lights at this intersection.
The traffic consultant testified that MMM has specific experience in the area
of bingo hall parking standards. Their research for the City of York in 1993, enabled
MMM to determine bingo hall parking characteristics, and to develop associated
parking standards. Also, MMM's survey of two bingo facilities, enabled it to
determine that peak attendance at bingo facilities never exceeded 54% of the hall's
capacity. This capacity figure was confirmed by the evidence of Mr. P. McMahon,
General manager, Top Rank Bingo. He stated that peak attendance was generally
at 50% of available capacity. According to his testimony, it is the policy of Top Rank
Bingo to construct their facilities spacious and attractive in order to encourage
attendance.
Based on their research, MMM concluded that 183 parking spaces are
required. This is based on a design capacity of 560 patrons, a 54% of peak capacity
attendance and a 1.92 patrons per parking space requirement. The site plan
indicates that 190 spaces are provided. In my vie~v, the methodology used by MMM
appeared sound, and despite a vigorous cross examination by counsel for LWAC,
the evidence of the traffic consultant with respect to the methodology employed, was
not shaken.
In response to a parking issue raised by LWAC, MMM prepared an
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ADDENDUM REPORT, which examined among other things, the demand and supply
of parking with respect to Movie Plex 9 Cinemas, the Bridgeport Centre Complex and
the Olive Garden Restaurant. The survey with respect to this study, was conducted
between 8:00 p.m. and 10:00 p.m. on Tuesday, June 11, 1996. The day and time
were selected as being representative of peak use of the three facilities.
The Addendum Report concluded that the signalised intersection at
Kingston/Dixie Roads operated at an excellent level of service of "A", at a volume
to capacity ratio of only 0.37. The study also found that the highest level of parking
utilization was at the Olive Garden Restaurant, with a peak of 71%, and that the
parking utilization at the theatre and Bridgeport Centre sites never exceeded 44%.
In the cross examination of the consultant, counsel for LWAC sought to establish that
the date and time of the parking supply and demand survey did not coincide with
or identified the maximum use of the existing facilities. I am of the view that, even
if the "real peak" was not identified at the time of the survey, there is sufficient
reserve capacity based on the 71% and 44% utilisation of parking observed, to
account for significant additional demand. The Board accepts the conclusions reached
in the two Traffic Impact Studies filed as Exhibits 25 and 26, particularly with the
sufficiency of the parking spaces provided
Application for a Minor Variance
The application arises strictly because of a change in ownership. Provisional
consent to convey was granted by the Regional Land Division Committee which has
the effect of severing the Olive Garden Restaurant site (the existing SC-18 zoned
lands) from the Bridgeport Centre site (the existing SC-17 zoned lands). Both sites
are currently serviced by 313 parking spaces, 126 located on the north part (Olive
Garden Restaurant) and 187 on the south part or Bridgeport Centre site. Zoning By-
Law 2641/88 as worded, requires that the entire property (pre-severance), provides
311 parking spaces. However, if the north and south parts of the site are under
different ownerships, the By-Law requires a minimum of 288 parking spaces on the
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V 950572
south part of the site, whereas as already indicated, the south part of the lands
only supports 187 parking spaces. The application for minor variance is a request
to recognize the existing parking situation by a relaxation of the parking standard to
allow 188 parking spaces rather than the 288 required by the By-Law.
The planner for the Town testified that the sites in question are located in a
"downtown" area, where sharing of parking spaces between sites, improved transit
and pedestrian access, on street parking, and varied peak demand times for various
uses, should be expected to reduce the need for extremely large areas of land
devoted to parking lots, to serve individual sites. It was also her evidence that the
existing parking experience would not be affected by the proposed consent to
convey, and can find no good reas.~)n why it should. I accept her evidence, and
find that the application is minor in nature, appropriate for the desirable development
of the land and in keeping with the general intent and purpose of the Official Plan
and By-Law 2641188, as amended.
Because of the foregoing, the Board orders the following:
1. The appeal of the Liverpool West Community Association against Zoning By-
Law 4621/95, is allowed in part and By-Law 4621/95 is amended and attached
as Schedule
2. The appeal of the Liverpool West Community Association from a decision of
the Town of Pickering Committee of Adjustment is dismissed, and the
application granted.
18th day of September, 1996.
DATED at TORONTO this
CA. BEACH
MEMBER .-?
THE CORPORATION OF THE TOWN OF PICKERING
BY-LAW NUMBER 4621 /95
Being a By-law to amend Restricted Area (Zoning) By-law 3036, as amended by
By-laws 2641/88, 3254/89 and 4602/95, to implement the Official Plan of the
Town of Picketing District Planning Area, Region of Durham, in Part of Lot 24,
Concession 1, in the Town of Picketing.
(A 8/94)
WHEREAS the Council of the Corporation of the Town of Picketing passed By-law 2641/88,
amending By-law 3036, to permit the development of special purpose commercial uses on the
subject lands, being Part of Lot 24, Concession 1, in the Town of Picketing;
AND WHEREAS the Council of the Corporation of the Town of Picketing passed By-law
3254/89, amending By-law 2641/88, to revise parking requirements and permitted uses on a
portion of the subject lands, being Part of Lot 24, Concession 1, in the Town of Pickering;
AND WHEREAS the Council of the Corporation of the Town of Picketing passed By-law
4602/95, further amending By-law 2641/88, to permit the establishment of a restaurant with
eat-in, take-out and drive-through order and pick-up services on a portion of the subject lands;
AND WHEREAS the Council of the Corporation of the Town of Picketing now deems it
desirable to further amend By-law 3036, as amended by By-laws 2641/88, 3254/89 and 4602/95
to permit additional special purpose commercial uses, and a consolidation of uses on the subject
lands, being Part of Lot 24, Concession 1, Town of Picketing;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF
PICKERING HEREBY ENACTS AS FOLLOWS:
Schedule I attached hereto with notations and references shown thereon is hereby
declared to be part of this By-law.
The provisions of this By-law shall apply to those lands in part of Lot 24, Concession 1,
in the Town of Picketing, designated "SC-33" and "SC-34" on Schedule I attached
hereto.
3. GENERAL PROVISIONS
No building, 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) ~ shall mean an area of land in which all or part of a building or
buildings are to be located;
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(2) ~ shall mean a building or part of a building in which the
management or direction of a business, a public or private agency, a brokerage or
a labour or fraternal organization is carried on and which may include a telegraph
office, a data processing establishment, a newspaper publishing office, the
premises of a real estate or insurance agent, or a radio or television broadcasting
station and related studios or theatres, but shall not include a retail store;
(3) "Commemial Recreation Establishment" shall mean a commercial establishment
in which indoor recreational facilities such as bowling alleys, miniature golf
courses, bingo facilities, gymnastics facilities, roller skating rinks, squash courts,
swimming pools and other similar indoor recreational facilities are provided, and
which may include and athletic or recreational club;
(4) ~ shall mean a part of a building where such items as letters,
plans, pictures and documents are reproduced by Photostatting, blueprinting or
other similar methods;
(5) "Fina~ncial [l~stitution" shall mean a building or part of a building in which money
is deposited, kept, lent or exchanged;
(6) "Furniture or Major Appliance Store" shall mean an establishment in which
furniture, major appliances or a combination thereof are stored, offered and kept
for wholesale or retail sale;
(7) "_O. am~s_~&~ shall mean any building, room or area in which are offered
facilities for the play off
(a) three or more games of chance;
(b) three or more games of mixed chance and skill; or
(c) a combination of three or more games of chance and games of mixed chance
and skill,
for the amusement of the public, which games are not contrary to the Criminal
Code of Canada, but does not include premises in which the only amusement
facilities offered are pool tables, billiard tables, bingo facilities or bowling alleys;
(8) "Gross Leasable Floor Area" shall mean the aggregate of the floor areas of all
storeys above or below established grade, designed for owner or tenant occupancy
or exclusive use only, but excluding storage areas below established grade;
(9) "Home Improvement Centre" shall mean a building or part of a building used for
the display and wholesale and retail sale of building materials, hardware or
accessories, including cabinets, electrical fixtures, carpets, floor coverings,
plumbing supplies, wallpaper, draperies, garden supplies, lumber and swimming
pool supplies;
(10) "Light Machinery. and Equipment Supplier" shall mean a building or part of a
building in which office furniture and machines; carpet and drapery cleaning
equipmant; painting, gardening and plumbing equipment; small hand and power
tools and similar products are stored, offered or kept for wholesale or retail sale to
industrial or commercial establishments;
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(11) ~ shall mean an area of land fronting on a street which is used or intended to
be used as the site of a building, or a group of buildings, as the case may be,
together with any accessory buildings or structures, or a public park or open space
area, regardless of whether or not such lot constitutes the whole of a lot or block
on a registered plan of subdivision;
(12) "place of Amusement/Entertainment" shall mean a building or part of a building
in which facilities are provided for amusement or entertainment purposes, and
which may include a billiard or pool room, a dance hall, a music hall, or a theatre,
but shall not include a games arcade or an adult entertainment parlour as defined
in the Municipal Act, R.S.O. 1990, c.M.45, as amended from time to time, or any
successor thereto;
(13) "professional Office" shall mean a building or part of a building in which
medical, legal or other professional service is performed or consultation given,
and which may include a clinic, the offices of an architect, a chartered accountant,
an engineer, a lawyer or a physician, but shall not include a body-rub parlour as
defined in section 224 (9)(b) of The Municipal Act, R.S.O. 1990, Chapter M.45,
as amended from time-to-time, or any successor thereto;
(14) "l~estaur0nt - Type B" shall mean a building or part of a building where food is
prepared and offered or kept for retail sale to the public for immediate
consumption in the building or buildings on the premises only;
(15) "Restaurant - Type F" shall mean a building or part ora building where food is
prepared and offered or kept for retail sale to the public for immediate
consumption on the premises or off the premises, or both on and off the premises,
and which may include a drive-through order and pick-up service;
(16) "yard" shall mean an area of land which is appurtenant to and located on the same
lot as a building or structure and is open, uncovered and unoccupied above ground
except for such accessory buildings, structures, or other uses as are specifically
permitted thereon.
5. PROVISIONS ("SC-33" and "SC-34" Zone)
(1) Uses Permitted ("SC-33" Zone)
No person shall, within the lands designated "SC-33" on Schedule I attached
hereto use any lot or erect, alter or use any building or structure for any purpose
except the following:
(a) business office
(b) commercial recreation establishment
(c) duplicating shop
(d) financial institution
(e) furniture or major appliance store
(f) home improvement centre
(g) light machinery and equipment supplier
(h) place of amusement/entertainment
(i) professional office
0) restaurant - type B
(k) restaurant - type F
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(2) Uses permitted ("SC-34" Zone)
No person shall, within the lands designated "SC-34" on Schedule I attached
hereto use any lot or erect, alter or use any building or structure for any purpose
except the following:
(a) business office
(b) commercial recreation establishment
(c) duplicating shop
(d) financial institution
(e) furniture or major appliance store
(f) home improvement centre
(g) light machinery and equipment supplier
(h) place of amusement/entertainment
(i) professional office
(j) restaurant - type B
(3) ~ ("SC-33" and "SC-34" Zone)
No person shall, within the lands designated "SC-33" and "SC-34 on Schedule I
attached hereto, use any lot or erect, alter or use any building or structure except
in accordance with the following provisions:
(a) BUILDING RESTRICTIONS:
(i) Building Location and Setbacks:
A Buildings and structures shall comply with the minimum
setbacks illustrated on Schedule I attached hereto;
B A minimum of 60% of the length of the build-to-zone
illustrated on Schedule I attached hereto shall have located on
it, a building or part of a building;
(ii) Building Height:
A Minimum: 2 storeys or 6.5 metres
B Maximnm: 4 storeys or 13.0 metres
(iii) Lot Coverage (minimum): 20 percent
(b) PARKING REQUIREMENTS:
(i) For the purpose of this clause "parking space" shall mean a useable
and accessible area of not less than 2.6 metres in width and not less
than 5.3 metres in length for the temporary parking of a vehicle, but
shall not include any portion of a parking aisle or driveway;
(ii) There shall be provided and maintained on the lands designated
"SC-33" on Schedule I attached hereto, a minimum of 168 parking
spaces for the first 9,800 square metres of gross leasable floor area,
plus a minimum of 3.0 parking spaces per 93 square metres gross
leasable floor area or part thereof in excess of 9,800 square metres
gross leasable floor area;
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(iii) There shall be provided and maintained on the lands designated
"SC-34" on Schedule I attached hereto a minimum of 3.0 parking
spaces per 93 square metres gross leasable floor area or part thereof;
(iv) Clauses 5.21.2a), 5.21.2b), 5.21.2c), 5.21.2d) and 5.21.2e) of By-law
3036, as amended, shall not apply to lands designated "SC-33" and
"SC-34" on Schedule I attached hereto;
(v) Notwithstanding clauses 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.
(c) OPEN STORAGE: all uses, other than parking, shall
take place entirely within enclosed buildings or structures with no outside
storage or display.
(d) SPECIAL REGULATIONS:
(i) A maximum of one restaurant - type F shall be permitted on the
lands designated "SC-33" on Schedule I attached hereto;
(ii) The aggregate of the gross leasable floor area of all business offices,
duplicating shops, financial institutions and professional offices shall
not exceed 50 percent of the gross leasable floor area of all buildings
on the lot;
(iii) The gross leasable floor area of each commercial recreation
establishment, duplicating shop, furniture or major appliance store,
home improvement centre, light machinery and equipment supplier,
place of amusement/entertainment, restaurant - type F and restaurant
- type B shall not be less than 278 square metres;
(iv) for the purpose of calculating lot coverage, lands intended for future
conveyance to the Town for public roadway pusposes shall be
excluded from the lot area.
6. I~Y-LAW 2641/88. AS AMENDED
By-law 2641/88, as amended by By-laws 3254/89 and 4602/95 is hereby further amended
to the extent necessary to give effect to the provisions of Sections 7. and 8. hereof.
7. TEXT AMENDMENTS
(1) Section 2. of By-law 2641/88, as amended, is hereby amended by deleting the
words "SC-17", and "SC-20" and "SC-21" from the second and third lines;
(2) Section 4.(12) of By-law 2641/88, as amended, is hereby deleted;
(3) Section 5.(1)(a) of By-law 2641/88, as amended, is hereby deleted and Section
5.(1)(b) is renumbered as Section 5.(1)(a);
(4) Section 5.(1)(c) of Bylaw 2641/88, as amended, is hereby renumbered as Section
5.(1)(b), and amended by deleting the words "and "SC-21" from the title and from
the first and second lines;
(5) Section 5.(1)(d) of By-law 2641/88, as amended, is hereby deleted;
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(6) Section 5.(1)(e) of By-law 2641/88, as amended, is hereby renumbered as Section
5.(1)(c), and amended by:
(a) deleting the words "SC-17" and "SCo20", and "SC-21" from the title and
from the first and second lines;
(b) deleting the words "SC-17" and "and "SC-21" from Paragraph (ii)A;
(c) deleting the words "and "SC-20" from Paragraph (ii)B
(d) deleting the words and numbers "SC-17 288", "SC-20 46" and "SC-21
138" from the table in Paragraph (iv)B
(e) deleting Paragraph (iv)C
(f) deleting Paragraph (v)A
(g) renumbering Paragraph (v)B as Paragraph (v)A
(h) renumbering Paragraph (v)C as Paragraph (v)B
(i) deleting Paragraphs (v)D and (v)E
8. SCHEDULE AMENDMENTS
Schedules I and II to By-law 2641/88, as amended, are hereby amended by deleting
therefrom all reference to the lands designated "SC-17", "SC-20" and "SC-21" on
Schedule I of the said By-law.
This By-law shall take effect from the day of passing hereof subject to the approval of the
Ontario Municipal Board, if required.
READ A FIRST AND SECOND TIME THIS 8th DAY OF Auqlus t ,1995.
READ A THIRD TIME AND PASSED THIS 8th DAY OF August ,1995.
WAYNE ARTHURS
~ SC-
,~.o~,,
SC-33
ZONE BOUNDARY
MINIMUM SETBACK
BUILD-TO ZONE
SCHEDULE T TO BY-LAW
PASSED THIS 8th
DAY OF ~,ugust1995
GLENANNA ROA[~
GLENANNA ROAD
CULROSS
AVENUE
MEAOOW
SUSJ£C 7'
RADOM
STREET
HALLER AVENUE
OLD ORCHARD AVE.
Town of Pickering Planning Department
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