Ontario Municipal Board Commission Des Affaires Municipales De L’Ontario
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Ontario Municipal Board Commission des affaires municipales de l’Ontario ISSUE DATE: May 26, 2016 CASE NO(S).: PL140743 PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant (jointly): Angus Glen Holdings Inc., Angus Glen North West Inc. & North Markham Landowners Group Appellant (jointly): Beechgrove Estates Inc., Minotar Holdings Inc., Cor- Lots Developments, Cherokee Holdings & Halvan 5.5 Investments Ltd. Appellant (jointly): Brentwood Estates Inc., Colebay Investments Inc., Highcove Investments Inc., Firewood Holdings Inc., Major McCowan Developments Ltd. & Summerlane Realty Corp. Appellant: And others (See Attachment 1) Subject: Proposed New Official Plan – Part 1 (December 2013) - for the City of Markham Municipality: City of Markham OMB Case No.: PL140743 OMB File No.: PL140743 OMB Case Name: Angus Glen Holdings Inc. v. Markham (City) Heard: April 29, 2016 in Markham, Ontario APPEARANCES: Parties Counsel City of Markham C. Barnett L. Bisset B. Ketcheson For others see Attachment 2 2 PL140743 MEMORANDUM OF ORAL DECISION DELIVERED BY M. CARTER-WHITNEY ON APRIL 29, 2016 AND ORDER OF THE BOARD [1] This was the fourth prehearing conference (“PHC”) in relation to numerous appeals of the new Official Plan (“OP”) of the City of Markham (“City”). [2] Chris Barnett, counsel for the City, provided an update on the status of a number of matters in relation to these appeals. The City has been engaged in discussions with different groups of appellants, divided in relation to common thematic issues, in an attempt to narrow and resolve those issues. As a result, a number of issues have been resolved and some appeals have been resolved and withdrawn. Certain appellants wish to remain parties to the appeal in order to monitor the proceedings. [3] The Board was notified of changes in the names of two parties. Mark Flowers advised that his client, the Shouldice Hospital Ltd., has sold its property to Atlas Shouldice Health Care Ltd. (“Atlas”). Atlas has retained Mr. Flowers and is assuming the appeal. Mr. Barnett advised that Terra Gold (McCowan) Properties Inc., represented by Neil Smiley, has been sold. Mr. Barnett stated that the appeal runs with the land so the new owner may assume it, subject to the issues already determined in the matter. Mr. Smiley has undertaken to keep the City and other parties apprised of the new owner’s intentions. [4] The discussions between the City and various appellants have also led to the City’s Motion for Partial Approval of the OP, dealt with below. Arbor Memorial Inc. [5] Bruce Ketcheson appeared as counsel for the City specifically with respect to the Arbor Memorial Inc. (“Arbor”) appeal in relation to a site-specific proposal by a commercial operator of cemeteries and funeral homes. In addition to its private appeals, Arbor has appealed the new OP and has identified a lengthy list of issues, both site-specific and general. Mr. Ketcheson stated that the extent and number of these 3 PL140743 issues has made it difficult for Arbor to fully engage in the process that the City has been conducting to scope and mediate issues. [6] As a result, Mr. Ketcheson asked the Board to direct the City and Arbor to meet, no later than the middle of June 2016, to refine and scope Arbor’s issues list in order to consider whether it would be appropriate for Arbor to be involved in any of the planned Board mediation processes. Thomas Barlow, counsel for Arbor, supported Mr. Ketcheson’s request. [7] As requested, the Board directs the City and Arbor to meet by mid-June 2016 to discuss and scope the issues put forward by Arbor in its appeal. Motion for Partial Approval and Proposed Modifications to the Official Plan [8] The City brought a Motion for the approval of certain policies, maps and appendices. The motion was brought on consent of all parties, and the City sought an order abridging the time for service of the Motion. [9] In support of the Motion, the City provided the affidavit evidence of Murray Boyce, sworn April 26, 2016. Mr. Boyce is a Senior Policy Coordinator in the City’s Planning and Urban Design Department and a Registered Professional Planner and member of the Canadian Institute of Planners. The Board accepted his affidavit as expert land use planning opinion evidence. In his affidavit, Mr. Boyce provided a detailed description of the proposed modifications to the OP. [10] On November 25, 2015, the Board issued an order with respect to York Region Official Plan Amendment No. 3 (“ROPA 3”) to remove the restriction on the urban area designation in the York Region Official Plan (“ROP”) for the remaining lands within the City north of Major Mackenzie Drive and east of Woodbine Avenue. A proposed modification provides for the deletion of the asterisk and associated note pertaining to the 'Future Urban Area' lands shown on “Map 1 - Markham Structure” and “Map 12 - Urban Area and Built-Up Area” to recognize that the Future Urban Area lands are no 4 PL140743 longer subject to the outcome of appeals to the ROP, as the ROPA 3 appeals have now been resolved. [11] On August 21, 2015, the Ministry of Municipal Affairs and Housing filed O. Reg. 247/15, amending O. Reg. 104/71, which applies to certain restricted areas within the area covered by the Minister’s Zoning Order – Airport in Markham (“Airport MZO”). The new regulation revokes a number of sections in O. Reg. 104/71 and substitutes a new boundary for the Airport MZO. A proposed modification amends the boundary of the Airport MZO, shown on “Map 7 - Provincial Policy Areas”, to be consistent with the restricted area lands contained in O. Reg. 247/15. [12] A number of proposed modifications arise from the group discussions on issues organized into thematic groups. [13] With respect to issues related to the Highway 404 mid-block crossings north of Elgin Mills Road and the major collector roads shown in the Highway 404 North (Employment District), the City, the Region and the appellants agreed on proposed modifications to road network and cycling facilities to reflect the requirements of a completed Class Environmental Assessment and Environmental Study Report. [14] With respect to environmental systems issues, the City, the Region, the Toronto Region Conservation Authority and the North Markham Landowners Group have agreed to a modification to an area-specific policy applying to lands in the Future Urban Area. A proposed modification further clarifies that woodlands forming part of certain lands designated “Greenway” may contain nursery stock. [15] With respect to housing, community infrastructure and cultural heritage issues, proposed modifications further clarify: the role of housing impact statements and the City’s affordable and shared housing strategy; the role of community infrastructure impact statements, the definition of “public community infrastructure” and the public school policies; and the definition of and policy references to “cultural heritage resources” and “adjacent lands” and a consistent reference to the City’s Heritage Resources Evaluation System. 5 PL140743 [16] With respect to urban design and sustainable development issues, proposed modifications address issues related to: referencing guidelines and plans that are not an operative part of the OP; policy redundancy; and the need to reference plans of subdivision and site plans as planning processes for addressing the urban design policies. Other proposed modifications further clarify and recognize that the OP is designed to ensure that future development in the City is sustainable and that the policies apply to new and established communities. [17] With respect to implementation, comprehensive block plan and right of way policies, proposed modifications: address issues related to referencing transportation infrastructure in a manner consistent with the ROP and referencing guidelines and plans that are not an operative part of the OP; clarify the definitions of “floor space index” and “municipal comprehensive review”; and amend policies to recognize the existing precinct plan for the Cathedral precinct and a revised boundary for the Cathedraltown Local Centre. [18] An additional proposed modification clarifies that low rise condominium development on a private street may also be considered by zoning by-law amendment where a development block has frontage on an arterial or major collector road. A further proposed modification to Policy 9.19.2 modifies certain area and site specific policies for undeveloped lands in South Unionville to allow new lot and additional dwelling unit creation in accordance with a previously approved Secondary Plan, notwithstanding the prohibition policy on new lot creation and additional dwelling unit creation. [19] Mr. Barnett asked that the Board adopt the same format for its Order as was used in the Board’s Order issued October 30, 2015, attaching a schedule listing the OP sections that are in-force City-wide, subject to area and site-specific appeals, and a schedule listing the remaining issues in the appeals. He further requested that the Board’s Order update and therefore supercede the October 30, 2015 Order. The City submits that there will be greater transparency in being able to refer to the most recent 6 PL140743 Order in order to know which sections of the OP are in force. Mr. Barnett stated that City staff would discuss whether a concordance should be created to indicate the dates when policies have been brought into force. Patricia Foran, counsel for several appellants, stated that it is important for parties and member of the public to know where to find those dates as the OP policies will be in effect as of the date they come into force. [20] Based on Mr. Boyce’s uncontradicted affidavit evidence, the Board finds that the OP policies, maps and appendices, listed in the third column of Schedule A to this Order, are consistent with the Provincial Policy Statement (2014) and conform to all applicable provincial plans and the ROP.