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HomeMy WebLinkAboutBy-law 6704/06 THE CORPORATION OF THE CITY OF PICKERING BY-LAW NO. 6704/06 OMB ORDER NO.; 2469 AUG. 31, 2006 Being a By-law to amend Restricted Area (Zoning) By-law 2511, as amended by By-law 2760/88, to implement the Official Plan of the City of Pickering, Region of Durham, in South Part of Lot 19, Concession 1, in the City of Pickering. (A 22/05) WHEREAS the Council of The Corporation of the City of Pickering deems it desirable to permit an additional use being a Body-Rub Parlour, on the subject lands, being South Part of Lot 19, Concession 1, in the City of Pickering. AND WHEREAS an amendment to By-law 2511, as amended by By-law 2760/88, is therefore deemed necessary; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF PICKERING HEREBY ENACTS AS FOllOWS: 1. TEXT AMENDMENT 1. Section 4 DEFINITIONS of By-law 2760/88, is hereby amended by adding the following new Subsections (2) and (3) after Subsection (1), and renumbering after Subsection (3): (2) "Body-Rub" includes the kneading, manipulating, rubbing, massaging, touching, or stimulating, by any means, of a person's body or part thereof but does not include medical or therapeutic treatment given by a person otherwise duly qualified, licenced or registered so to do under the laws of the Province of Ontario; (3) "Body-Rub Parlour" includes any premises or part thereof where a body-rub is performed, offered or solicited in pursuance of a trade, calling, business or occupation, but does not include any premises or part thereof where the body-rubs performed are for the purpose of medical or therapeutic treatment and are performed or offered by persons otherwise duly qualified, licenced or registered so to do under the laws of the Province of Ontario; 2. Section 5 PROVISIONS, Subsection (1) Uses Permitted of By-law 2760/88, is hereby amended by adding the following new Clause (b) after Clause (a) and re-alphabetizing after Clause (b): (b) body-rub parlour; -2- 3. Section 5 PROVISIONS, Subsection (2) Zone Requirements, Clause (e) SPECIAL REGULATIONS of By-law 2760/88, is hereby amended by adding the following new Subclauses (viii) and (ix) after Subclause (vii): (viii) No more than one body-rub parlour shall be permitted and the aggregate gross leasable floor area of the body-rub parlour shall not exceed 150 square metres; (ix) A body-rub parlour shall be restricted to those units that do not front either Plummer Street or Brock Road; 2. BY-LAW 2511 By-law 2511, as amended by By-law2760/88 is hereby further amended only to the extent necessary to give effect to the provisions of this By-law as set out in Section 1 above. Definitions and subject matter not specifically dealt with in this By-law shall be governed by the relevant provisions of By-law 2511, as amended. 3. EFFECTIVE DATE This By-law came into force through OMB Order No. 2469, dated August 31,2006. - . I ISSUE DATE: Aug. 31, 2006 DECISION/ORDER NO: 1 4-ic PL060328 2469 glinwid= Ontario Ontario Municipal Board Commission des affaires municipales de ('Ontario 1430658 Ontario Inc. has appealed to the Ontario Municipal Board under subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to Zoning By-law 2511 of the City of Pickering to rezone lands respecting 1050 Brock Road, Unit 25 from MC-7 "Industrial-Commercial Zone" to permit anki additional use being a body-rub parlour OMB File No. Z060050 14 APPEARANCES: � + clt° Parties Counse . S O1 1430658 Ontario Ltd. (Pickering Spa) A. Paton G� Off , 0" - _ City of Pickering A. Allison 1630-1634 Bayly Street S. Keser DECISION DELIVERED BY E. PENDERGRAST AND ORDER OF THE BOARD Introduction The appellant is a licensed body-rub parlour located outside the defined area • where body-rub parlours are permitted in the City of Pickering. When the by-law establishing this defined area (By-law 5764-00) was enacted, on October 16, 2000, the City provided existing body-rub parlours an opportunity to obtain licences and also gave them until the end of 2005 to relocate to the defined area. There is no as-of-right zoning for body-rub parlours, but body-rub parlours must be zoned for that purpose in order to be licensed. Consequently, on July 25, 2005, the appellant applied to have 1050 Brock Road, the site within the defined area where it wishes to operate and has leased space for that purpose, rezoned to permit a body-rub parlour. Planning staff submitted a favourable report on the application, with a draft by-law attached. On April 3, 2006, Council refused the application and did not enact the by-law. On April 21, 2006, the appellant filed the appeal that is the subject of this hearing. - 2 - PL060328 Motion to Consolidate with Hearing of Appeals of By-law Permitting a Body-rub Parlour at 1630-1634 Bayly Street At the commencement of the hearing, the Board heard submissions regarding a motion brought by Ms S. Keser, counsel for 1630-1634 Bayly Street. The motion was to consolidate the hearing regarding 1050 Brock Street with the hearing of appeals by Safe Haven Worship Centre and 1430658 Ontario Ltd. against By-law 6673-06, which was enacted by City Council on June 5, 2006, in response to a rezoning application by 1630-1634 Bayly Street to permit a body-rub parlour at that address. Ms Keser's Notice of Motion also sought party status for her client and an adjournment of the hearing. Mr. A. Allison, counsel for the City, advised the Board that he had no instructions regarding the motion and made no submissions. After considering counsels' submissions and arguments for and against Ms Keser's motion, the Board dismissed the motion for consolidation, but did make Ms Keser's client a party to the hearing. The Board's reasoning was that By-law 6673-06 was enacted well after Council refused the rezoning for 1050 Brock Street on April 3, 2006, and after that refusal was appealed to the Board in Mr. Paton's letter dated April 21, 2006. The Board found that Mr. Paton's client was entitled to the completion of the appeal process provided for in the Planning Act, and that the consolidation would prejudice that process by allowing Ms Keser's client to a hearing at the same time. The two operators are in direct competition for one existing space in the City's body-rub district, and to allow Ms Keser's client to effectively "catch up" with the appellant would create a situation where the competition was brought into the hearing in a way that would almost certainly be prejudicial to the appellant. Witnesses Mr. Paton called three witnesses in support of the appeal. Lynda Taylor, a Registered Professional Planner and Manager of Development Review Services for the City's Planning and Development Department, under whose supervision the favourable planning report on the application was written, appeared under summons. Murray Evans, a Registered Professional Planner and a private planning consultant retained by the appellant gave planning evidence in support of the appeal. Kimberley Thompson, the City's Manager of By-law Services, testified that she was familiar with the appellant's operation, and gave evidence concerning her knowledge of its operation and - 3 - PL060328 the likelihood that it would be licensed if it achieved a rezoning. The Board qualified Ms Taylor and Mr. Evans to give opinion evidence in land use planning. Neither Ms Keser nor Mr. Allison called any witnesses, but both cross-examined the witnesses called by Mr. Paton in support of the appeal. In the context of its decision on Ms Keser's motion, the Board recognized Sam Martin, of Safe Haven Worship Centre, as a participant in the hearing. However, Mr. Martin left the hearing without providing any evidence to the Board. Background on Body-Rub Parlours in Pickering On October 16, 2000, Pickering enacted By-law 5764-00, which provides requirements for licensing and regulating body-rub parlours in. the City. This by-law �- defines an area within which body-rub parlours may be allowed to operate, subject to a zoning by-law amendment to permit the use. By-law 5764-00 was replaced by a new body-rub licensing by-law, By-law 6649-06, in April of this year. The new by-law does not alter the area within which licensed and zoned body-rub parlours are allowed to operate, but does add additional regulations and also limits the number of licensed body-rub parlours within the City to three. Both the old and existing body-rub by-laws define a body-rub as follows: "body-rub' includes the kneading, manipulating, rubbing, massaging, touching or stimulating by any means of a person's body or part thereof, but does not include medical or therapeutic treatment given by a person otherwise duly qualified, licensed or registered to do so under laws of the Province of Ontario. The existing body-rub by-law defines body-rub parlour as follows: body-rub parlour" is included in the definition of 'adult entertainment parlour' in the Municipal Act, 2001 and includes any premises or part thereof where a body-rub is performed, offered or solicited in pursuance of a trade, calling, business, or occupation, but does not include any premises or part thereof where the body-rubs performed are for the purpose of medical or therapeutic treatment and are performed or offered by persons other wise duly qualified, licensed or registered so to do under the laws of the Province of Ontario. -4 - PL060328 The only difference between the definitions included in the existing and previous by-laws is the inclusion in the existing by-law of the words "is included in the definition of 'adult entertainment parlour' in the Municipal Act 2001 and". -- Council has not established any specific criteria, other than the licensing requirements contained in By-law 6649-06 and the standard rezoning process, to evaluate applicants for body-rub parlour rezonings or licenses in the event that there is more than one applicant for a single available space within the defined area where body-rub parlours are permitted. The Site at 1050 Brock Road and the Proposed Draft By-law The property in question is approximately 1.2 hectares in size, located at the northwest corner of Brock Road and Plummer Street, and occupied by a 25-unit commercial ifus ial building.-- The propeffyis designated Employment Area-Mixed Employment in the Pickering Official Plan, and is zoned MC-7 by site-specific By-law 2760/88. The proposed draft by-law allows one body-rub parlour on the property, but limits the aggregate gross leasable floor area of the use to 150 square metres and provides that it can only be located in a unit that does not front onto Plummer Street or Brock Road, therefore effectively restricting the body-rub parlour to one of the units at the rear of the existing development. The outside of the building is well-lighted and there are clear sight lines to the rear of the building. Board's Decision and Reasons Having considered the evidence it heard and the submissions of counsel, the Board's decision is to allow the appeal and to amend the City's Zoning By-law, as amended by By-law 2760/88, a site-specific by-law respecting the property at 1050 Brock Road, in accordance with the draft by-law recommended by City planning staff in its report on the application and appended hereto as Attachment 1. Its reasons are as follows: 1. The Board heard evidence from two qualified land use planners in support of the appeal and the draft by-law recommended by City planning staff, and no planning - 5 - PL060328 evidence in opposition. Both planners, Ms Taylor and Mr. Evans, testified that the proposed use was permitted by the Durham Regional Plan and the Pickering Official Plan, is within the area where By-law 6649-06 permits body-rub parlours to be located, and would be subject to appropriate restrictions in the draft by-law in terms of size and location on the site. The use would also be subject to the controls set out in the body-rub licensing by-law. 2. The Board heard from the Manager of By-law Services, who was familiar with the operation at its current location, and who said that there would not be a difficulty in offering a license to the appellant if the rezoning is obtained. 3. According to Mr. Evans, his client intends to offer aromatherapy, shiatsu and reflexology, but is not licensed or otherwise duly qualified to do so under the laws of Ontario. Consequently, his client's business falls under the definition of a body- rub parlour set out in both the previous and existing licensing by-laws quoted above. Ms Thompson, who, as noted, is familiar with the existing Pickering Spa operation, testified that she anticipates that the services offered will be similar to those offered at the existing location: i.e., services offered by young girls that are much closer to the popular understanding of the services a body-rub parlour offers. In the Board's view, the proposed draft by-law is quite clear that the proposed use is a body-rub parlour to be located in the part of the City where body-rub parlours are permitted. If, once licensed, the appellant also offers other services, such as aromatherapy, shiatsu and reflexology, the Board finds that that is the appellant's prerogative, since these are not prohibited by either the body-rub licensing by-law or the proposed draft by-law. 4. Although it is clear that there is local opposition to the use, as noted in the planning report submitted under Tab 8 of Exhibit 4, the evidence from the two planners was that the location was appropriate for the use and preferable to its current location outside the area identified for body-rub parlours in By-law 6649- - 6 - PL060328 06. As noted, no one gave evidence, planning or otherwise, in opposition to the appeal at the hearing. 5. The Board has considered Mr. Allison's suggestion that the by-law be amended to provide that the proposed body-rub use be permitted provided that the services offered are not designed to appeal to erotic or sexual appetites. These words are taken from Section 151 of the Municipal Act, which addresses adult entertainment - establishments. The Board does-not find this to be a reasonable or practical `suggestion, given the definition of a body-rub parlour contained in By-law 6649- 06. The Board understands that this by-law, and the previous body-rub parlour Licensing by-law, were enacted to address uses that provide services designed to appeal to erotic or sexual appetites. . In conclusion, the Board hedrd no evidence to contradict the planning evidence of Ms Thompson and Mr. Evans, and it finds no reasonable rationale in the submissions of Ms Keser and Mr. Allison to either dismiss the appeal or amend the draft by-law attached to the planning report prepared under Ms Thompson's direction and recommended by Mr. Evans. Order • • The Board orders that the appeal is allowed and By-law 2511 of the City of Pickering, as amended by By-law 2760/88, is amended in the manner set out in Section 1 TEXT AMENDMENT and Section 2 BY-LAW 2511 in Attachment 1;to this Order. The Board authorizes the municipal clerk to assign a number to this by-law for record keeping purposes. "E. Pendergrast" • E. PENDERGRAST MEMBER e M PL060328 ATTACHMENT 1 THE CORPORATION OF THE CITY OF PICKERING BY-LAW NO. DRAFT Being a By-law to amend Restricted Area (Zoning) By-law 2511, as amended by By-law 2760/88, to implement the Official Plan of the City of Pickering, Region of Durham, in South Part of Lot 19, Concession 1, in the City of Pickering. (A 22/05) • • WHEREAS the Council of The Corporation of the City of Pickering deems It desirable to permit an additional use being a Body-Rub Parlour, on the subject lands, being South Part of Lot 18, Concession 1,in the City of Pickering. AND WHEREAS an amendment to By-law 2511, as amended by By-law 2760/88, Is therefore deemed necessary; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE aTY OF PICKERING HEREBY ENACTS AS FOLLOWS: 1. TEXT AMENDMENT 1. Section 4 DEFINITIONS of By-law 2760/88, is hereby amended by adding the following new Subsections (2) and (3) after Subsection.(1), and renumbering after Subsection 13): • (2) 'Body-Rub' includes the kneading, manipulating, rubbing, massaging, touching, or stimulating, by any means, of a person's body or part thereof but does not include medical or therapeutic treatment given by a person otherwise duly qualified, licenced or registered so to do under the laws of the Province of Ontario; (3) `Body-Rub Parlour' includes any premises or part thereof where a body-rub is performed, offered or solicited in pursuance of a trade, calling. business or occupation, but does not include any premises or pail thereof where the body-rubs performed are for the purpose of medical or therapeutic treatment and are performed or offered by persons otherwise duly qualified, licenced or registeredso to do under the laws of the Province of Ontario; 2. Section 5 PROVISIONS, Subsection (1) Uses Permitted of By-law 2760/88, Is hereby amended by adding the following new Clause (b) after Clause (a) and re-alphabetizing after Clause (b): a(b)body-rub:parlour; -2- • • 3. Section 5 PROVISIONS, Subsection (2) Zone Requirements, Clause (a) SPECIAL REGULATIONS cf By-law 2760/88, is hereby amended by adding the • following new Subclauses (viii)and (ix)after Subclause • (viii) No more than one body-rub parlour shall be permitted and the aggregate gross leasable floor area of the body-rub parlour shall not exceed 150 square metres; (ix) A body-rub parlour shall be restricted to those units that do not front either Plummer Street or Brock Road; 2. BY-LAW 2511 • By-law 2511, as amended by By-law 2760/88 is hereby further amended only to the extent necessary to give effect to the provisions of this By-law as set out in Section 1 above. Definitions and subject matter not specifically dealt with in this By-law shall • be governed by the relevant provisions of By-law 2511, as amended. 3. EFFECTIVE DATE • This By-law snail come into force in accordance with the provisions of the Planning Act. • BY-LAW read a first, second and third time and finally passed this 27e"day of Mardi,2006. • . • • • • LAI David Ryan. Ma or • • Debi A. Bentley, City Clerk • . . • • • • • •