Pl080239-Aug-18-2008.Pdf
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ISSUE DATE: AUG. 18, 2008 PL080239 Ontario Municipal Board Commission des affaires municipales de l’Ontario IN THE MATTER OF subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Appellant: Arnon Corp. and Zeev & Sara Vered Subject: By-law No. 2008-38 (amends By-law 100-2000) Municipality: City of Ottawa OMB Case No.: PL080239 OMB File No.: PL080239 A PPEARANCES: Parties Counsel Arnon Corporation and P. Vice Zeev & Sara Vered City of Ottawa J. Bradley DECISION DELIVERED BY M. G. SOMERS AND ORDER OF THE BOARD 1. CONTEXT Arnon Corporation and Zeev and Sara Vered (“the Applicants”) want to change the zoning of 1445 Merivale Road (“the subject property”) in the City of Ottawa (“the City”) from “CO-Commercial Office Block 8 to a MMU – Merivale Mixed Use Exception Zone”. The purpose of the application is to amend Zoning By-law 2008-38 to permit a 450 square metre fast food restaurant and parking lot. The current zoning permits a limited number of uses including office, but not restaurants or retail uses. Specifically, the zoning does not permit drive-through service; restaurant, restaurant fast-food and restaurant take-out. It is this restriction that the Applicants want removed from By-law 2008-38. Due to opposition to a drive-through restaurant, the Applicants have removed the drive-through component from its proposal. The Applicants appealed to the Board, the Council’s decision to include in By-law 2008-38, the restriction of “restaurant, restaurant fast-food and restaurant take-out.” - 2 - PL080239 Brian Casagrande, a qualified land use planner retained by the Applicants, provided planning evidence in support of the proposal. Ronald Jack, a civil engineer retained by the Applicants, was qualified as an expert in transportation planning and management and provided evidence in support of the proposal. Geraldine Johnston, a qualified land use planner with the City, was subpoenaed and provided evidence. Robert Clark, a qualified land use planner retained by the City, provided planning evidence opposing the proposal. Paul Dumbrille, Iris and Terence Lonergan members of the Working Group of the Fisher Heights Skyline-Orchard Park Community (“Community Association”) were present and provided evidence opposing the proposal. 2. SURROUNDING LANDS There was uncontradicted contextual evidence that the subject property is located on the east side of Merivale Road, immediately south of Burris Lane. The site is approximately 55 metres wide and 49 metres deep. The area of the site is approximately 3210 square metres. The subject property is currently a vacant lot. The surrounding properties contain a mix of uses including: low density residential to the east and commercial to the north, south and west. A motorcycle retailer and large format grocery store are located on the west side of Merivale Road, while a three-storey office building occupies the north side of Burris Lane. Approximately 100 metres to the south is a shopping outlet, which contains a number of retailers including a grocery store, drug store, restaurant, etc. In general, the area is dominated by asphalt parking lots that flank Merivale Road. Buildings are typically setback away from the street. For the most part landscaping is sparse along this segment of Merivale Road. Behind this site exists an established residential neighbourhood. The subject property is well situated within the City’s public transit system. The subject property is currently zoned Commercial Office (CO Block 8). This zone permits a number of uses including: business office, bank, day nursery, medical/dental office, school commercial, respite care facility, veterinary establishment and private club. The Block 8 provision restricts development from occurring until all of - 3 - PL080239 the lands delineated in Schedule B7 of the Zoning By-law are assembled under a single ownership. At present the CO Block 8 Zone does not support restaurant or retail uses. Mr. Casagrande testified that the Applicants have attempted to acquire the entire Block for several decades. The Applicants have not been able to attain the full block; however, they have recently increased their landholdings. The most recent acquisition prompted the proposed Zoning By-law Amendment (“ZBA”), as the Applicants believed they had sufficient property within Block 8 to accommodate a fast-food restaurant. The fast-food restaurant tenant who will occupy the future development is currently unknown. While a fast-food restaurant is the desired use of the subject property, the Applicants have indicated that they may consider marketing the property for a stand-alone retail. As such, the Applicants want to maintain some zoning flexibility to accommodate potential market demands. 3. PROVINCIAL POLICY STATEMENT It was Mr. Casagrande’s evidence that the proposed development is consistent with the policies of the Provincial Policy Statement (“PPS”), specifically Part V, Sections 1.1, 1.2, and 1.3 as it achieves the following: It contributes to the mix of uses available on this section of Merivale Road, which is already characterized by mixed-use development; It will contribute to the intensification of Merivale Road and will redevelop the site; It is appropriate for the existing infrastructure, as it is located along Merivale Road, an Arterial Road and takes advantage of existing water and sewer connections; and It provides commercial employment. Ms Johnston testified that the proposal is consistent with the PPS. The Board notes that Mr. Clark had some concerns regarding the proposed development and the PPS. Mr. Clark specifically mentioned sections of the PPS that he was concerned with: 1.1.1 c), 1.1.3.4 and 1.6.5.1. Nevertheless, Mr. Clark testified that overall the proposal was not inconsistent with the PPS. - 4 - PL080239 The Board finds that the evidence of Mr. Casagrande and Ms Johnston to be persuasive and based on their testimony the Board finds that the proposed development conforms to the PPS’s policies regarding intensification and redevelopment, providing a mixture of uses, the use of existing infrastructure and providing commercial employment. 4. CITY’S PLANNING DOCUMENTS (i) Applicants’ Evidence Mr. Casagrande informed the Board that the City’s Planning Department (“the Department”) supports the proposal. In addition, Mr. Casagrande informed the Board that the Planning Environment Committee (“PEC”) supported the proposal and recommended to Council to approve the ZBA (subject to a direction that staff consider a site plan with access and egress on Merivale Road and if access was not considered desirable, that it be subject to a report to the Transportation Committee). However, at Council, the Councillor for the area introduced Motion No. 30/7 (“the Motion”), which stated that the neighbouring Residents’ Community was greatly concerned about the access to and from the site and that the Residents’ Community had determined that if the restaurant and bar usage was removed from the list of permitted uses, the Community Group’s zoning concerns would be resolved (Exhibit 2, Tab 3 at p. 50). At Council the Motion was passed. It is Mr. Casagrande’s opinion that Council’s support of the Motion was not based on good planning. Furthermore, Ms Johnston testified that from a planning perspective, she could not support the content of the Motion. It was Mr. Casagrande’s and Ms Johnston’s evidence that the proposal conforms to the general intent and purpose of the Merivale Secondary Plan (“Secondary Plan”). The Secondary Plan was first enacted in 1982 and was updated in 1998. Ms Johnston, the author of the Department’s Report, states that the original vision of the Plan outlined for the area was never fully realized (Exhibit 2, Tab 10, at p. 31). Ms Johnston maintains in the Report that Merivale Road did not become a competitive location for office buildings as it was intended too. She further maintains that the current Secondary - 5 - PL080239 Plan recognizes that automobile-oriented retail uses will likely continue to dominate the area for sometime. The Department notes in the Report that unlike the original Secondary Plan, the current version introduces an alternative land use approach that focuses on enhancing urban design, rather than controlling land uses. The Department maintains that the current Plan continues to support a board range of retail uses, but has also been expanded to include additional varied uses, such as residential. The Report notes that the intent of the most recent Plan “is to improve the area as a place to shop, work, and live by enhancing the relationship between retail, employment, and residential use.” Section 3.2.1.1 of the Secondary Plan permits restaurants. Ms Johnston testified that the proposed fast-food restaurant would fit well in the area making the area more compact and efficient. It is her opinion that the proposal would contribute to the goals and objectives of the Secondary Plan by the intensification of Merivale Road and the development of a vacant site. In addition, Mr. Casagrande testified that the City’s Official Plan reinforces the need for efficient, compact development that can be served by public transit. He maintains that the City’s Growth Management Strategy is based on six guiding principles. Under these principles there are various policies that identify how the City expects to achieve their Growth Management Strategy. He maintains that the following policies from Section 1.6 of the Official Plan are considered to be most applicable to the proposed development: In underdeveloped