Rolle v. Clarington (Municipality), 2023 CanLII 48559

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 1, 2023

CASE NO(S).: OLT-21-001499

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Darryl Kerswell

Appellant: Justin Rolle

Subject: By-law No. 2021-069

Municipality: Municipality of Clarington

Property Address: 4504 Highway 2

OLT Case No.: OLT-21-001499

OLT Lead Case No.: OLT-21-001499

OLT Case Name: Rolle v. Clarington (Municipality)

Heard: November 14, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Justin Rolle	Ravio Uukkivi*
Municipality of Clarington	Robert Maciver*
Darryl Kerswell	Self-Represented

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is the appeal filed by Justin Rolle (“Appellant”), pursuant to s. 34(19) of the Planning Act (“Act”) of the Municipality of Clarington’s (“Municipality”) decision to approve a Zoning By-law Amendment (“ZBA”) to rezone the subject property at 4504 Highway 2 in Newtonville (“Property”) to permit commercial uses.

2In making a decision on a ZBA appeal under s. 34(19) of the Act, the Tribunal must determine whether the proposed ZBA:

a. has regard to matters of provincial interest under s. 2 of the Act;

b. is consistent with the Provincial Policy Statement, 2020 (“PPS”);

c. conforms with applicable provincial plans;

d. conforms with applicable official plans; and

e. represents good planning.

3In considering these issues, and determining this Appeal, the Tribunal must also have regard to any decision of the Council for the Municipality as it relates to the ZBA, and also to the supporting information and material that was before Council in making such decision in relation to the Appeal now before the Tribunal.

OVERVIEW

4The Tribunal heard as follows.

5Prior to May 31, 2021, Darryl Kerswell (“Applicant”) operated a convenience store as a commercial tenant of 4502 Highway 2, next door to this Property. As part of his convenience store business, the Applicant operated a Canada Post outlet and sold alcohol pursuant to an authorization under the Liquor Control Board of Ontario (“LCBO”) Convenience Outlet program.

64502 Highway 2 was purchased by Artgrow Corporation, the directors of which are the Appellant and his spouse. Following the purchase of the property, the Applicant’s commercial tenancy was terminated.

7The Applicant, wanting to continue operating his business, decided to move to the Property directly adjacent, and to that end, applied for a ZBA, which was approved by the Municipality.

8The ZBA rezoned the Property from Residential Hamlet (RH) to Holding – Hamlet Commercial Exception ((H) C3-10) to facilitate a commercial establishment with a maximum floor area of 60 square metres within an addition to the existing single detached dwelling on the property. The C3-10 Zone reduces the front yard setback from 3 metres (“m”) to 1.4 m, reduces the front yard setback for an accessibility ramp from 0.6 m to 0 m, reduces the interior side yard setback from 3 m to 2.9 m, reduces the drive aisle from 4.5 m to 2.9 m and removes the requirement for a loading space.

DESCRIPTION OF PROPERTY & NEIGHBOURHOOD

The Tribunal heard as follows:

9The Property is located on the north side of Durham Regional Highway 2 (hereinafter “Highway 2”), and east of Newtonville Road or Durham Regional Road 18. The Property is a rectangular shape and has a lot size of approximate 1059.1 m2 (0.26 acres) with 19.51 metres of frontage along Highway 2.

10The Property is currently occupied by a single detached dwelling with a detached garage located at the rear of the property. The Property is accessed by a narrow drive aisle abutting the lands to the west. A chain link fence was recently erected along the westerly property line.

11The surrounding context includes the following:

North: Abutting to the north are single detached residential dwellings;

East: Abutting to the east are single detached residential dwellings with frontage on Highway 2;

South: To the south is Highway 2 and further south are single detached residential dwellings;

West: Abutting to the west is a convenience store (currently undergoing renovation as the Newtonville Country Store & Mr. Toppings Pizza), which has been an operating mixed-use property for decades, and now owned by the Appellant. Further west is Newtonville Road.

12Highway 2 fans out to the north in front of the Subject Lands and Adjacent Lands, reflecting a former alignment with Hill Street. These lands continue to be in the ownership of the Region of Durham and constitute a public right-of-way.

13The Property is located within the “Hamlet” designation of the Durham Region Official Plan on Schedule ‘A’ – Regional Structure, as well as in the Municipality of Clarington Official Plan (“COP”) on ‘Map A1 – Land Use – East Clarington Rural Area.

14The Zoning By-law 84-63 zones the Property as “Residential Hamlet (RH) which does not permit commercial uses. The Property was recently rezoned to “Holding – Hamlet Commercial Exception ((H) C3-10)” to permit a mixed-use establishment to operate commercial uses to the south while maintaining residential uses to the north and above.

15The Property is located along Highway 2 which is classified as a Type A Arterial Road, and Regional Road 18 which is a Type B Arterial Road. Both Arterial Roads are intended to move traffic continuously through the municipality at significant volumes.

THE APPLICATION AND APPLICATION HISTORY

SUBJECT PROPERTY APPLICATION

16The Tribunal heard:

The proposal for the Property is to rezone the existing single-detached residential dwelling into a mixed-use commercial general convenience store and eating establishment with a maximum of 60 square metres of commercial use, while maintaining the existing residential component to the rear and above.

17The Property was rezoned from “Residential Hamlet (RH) to “Holding – Hamlet Commercial Exception ((H) C3-10).”

18The Tribunal heard the changes to the Property include:

• An addition to the east and south side of the existing single-detached residential dwelling, resulting in a reduced front yard setback;

• Removal of the west side of the existing dwelling to accommodate a wider, 2.99 m asphalt drive aisle;

• A designated commercial parking space to the west of the building, and an accessible parking spot to the east of the dwelling, including a new curb cut along Highway 2;

• Providing an accessibility ramp along the front façade to allow for barrier free access to the entrance of the proposed addition;

• Providing a loading space to be located outside of the site boundaries on Regional Highway 2;

• Providing two residential parking spots, one outdoor space to the rear of the building and one in the existing detached garage.

19The ((H) C3-10) zone as per Zoning By-law 2021-069 proposes the following changes:

• That the front yard setback be reduced from 3.0 metres to 1.4 metres;

• That the front yard setback for accessibility ramp be reduced from 0.6 metres to 0 metres;

• That the interior yard setback be reduced from 3.0 metres to 2.9 metres;

• That the drive aisle for residential parking be reduced from 4.5 metres to 2.9 metres;

• That the required loading space be reduced from 1 to nil;

• That there is a maximum of 60 square metres of commercial use.

APPLICATION HISTORY

20The Tribunal heard:

• On March 24th, 2021, the Applicant submitted a pre-consultation application for the Property to permit a commercial use general store only;

• On April 15th, 2021, the pre-consultation hearing was held;

• On April 28th, 2021, the pre-consultation meeting minutes were made available to the Applicant;

• On May 5th, 2021, a ZBA and Site Plan Application was received by the Municipality of Clarington;

• On May 17th, 2021, the ZBA was deemed a complete application at this time. It is noted however that a Parking and Loading Analysis Report, a Parking Plan and a Phase 1 ESA were not included in the submission;

• On June 7th, 2021, a statutory public meeting was held for the public to voice their support or concerns over the proposed development in which 1 petition was initiated with 1292 signatures in support, 8 written submissions in support and 91 submissions in opposition were received.

21Public reasons for support include:

• The need for an accessible commercial space within the Hamlet of Newtonville;

• The need for a General Store in Newtonville; and

• The need to support local businesses.

22Public reasons for concern include:

• Potential road congestion along Regional Highway 2 in Newtonville;

• Pedestrian hazard as a result of increased traffic with limited space and parking on the subject property;

• Ability for the site to provide sufficient parking for both the commercial and residential uses;

• Ability of the site to meet the accessibility standards set by the Province;

• Reduced landscaping that will adversely impact the public realm;

• Altering the historic façade is not in keeping with the intent of developing a heritage district as per the Clarington Official Plan;

• Adverse effects on surrounding properties;

• Limited parking, accessibility, and safety of loading spaces in right of way;

• Overflow of parking onto existing commercial property and not meeting parking requirements;

• Lack of parking causing traffic issues and potential for accidents; and

• Concerns with two convenience stores side by side.

23On June 21st, 2021, the Municipality of Clarington deemed the Site Plan Application complete at this time, and the application was circulated for comments.

24The Staff Report was supportive of the proposed development and did not outline any cause for concern or outstanding plans or studies, including the Region of Durham parking analysis.

25On September 13th, 2021, at the Joint General Government and Planning and Development Committee meeting, there were 8 delegations of which 7 were in opposition of the subject development, with the one in support being the Applicant.

26The Application was recommended for denial at the September 13th, 2021 Committee meeting.

27The General Government and Planning and Development Committee recommendation was brought forward to the September 20th, 2021 General Council Meeting. At that meeting 12 delegations were provided; all but one in support of the proposed development.

28The Application was carried and Zoning By-law 2021- 069 was approved to which on September 23rd, 2021, notice of the passing of Zoning By-law 2021-069 was issued.

EXPERT WITNESSES

29The Tribunal qualified without objections the following individuals as either experts to provide opinion evidence in their field of expertise or non-professional witness testimony.

30For the Appellant:

• Mr. Eldon Theodore, MCIP, RPP (M.H.B.C.) - Land Use Planning;

• Mr. Michael Linton, P.Eng (Crozier & Associates) - Traffic Study;

• Ms. Serena Rolle, Visual evidence (Nonprofessional).

31For the Municipality:

• Ms. Amanda Tapp, MCIP, RPP - Land Use Planning

32For the Applicant:

• Mr. Michael Fry, MCIP, RPP (D.G. Biddle and Ass.) - Land Use Planning;

• Mr. Andre Lower, P.Eng. (Trans-Plan Transportation Inc.) Traffic Study.

33The Tribunal was provided on consent with an Issues List contained within the approved Procedural Order to which the witnesses relied on for their testimonies.

APPELLANT’S EVIDENCE

PLANNING CONTEXT

34Mr. Theodore testified that his firm, MHBC, was retained to provide land use planning advice with respect to the ZBA application for the Property.

Planning Act

Does Zoning By-law 2021-069 (the “By-law”/“ZBA”) have appropriate regard to the matters of provincial interest in Section 2 of the Planning Act?

35Mr. Theodore testified that Section 2 of the Planning Act outlines matters of Provincial Interest which all development applications must have regard to and having considered the matters of provincial interest he opined the Application does not have regard to the following matters:

h) the orderly development of safe and healthy communities;

(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;

(n) the resolution of planning conflicts involving public and private interests;

(o) the protection of public health and safety;

(r) the promotion of built form that,

(i) is well-designed;

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant

36Mr. Theodore provided that the proposal relies on having two curb cuts in order to manage new parking and accessible parking requirements on site. This doubling of the curb cut along a narrow frontage introduces new conflict points between the public and private realm that decreases safe vehicular and pedestrian movement along Highway 2; a Regional Type A Arterial where access is restricted.

37Mr. Theodore further stated that the Application seeks to have the existing driveway turned into a tandem parking drive aisle arrangement, with one required parking space for commercial uses near Highway 2 and two required parking spaces for residents in the rear.

38He added that this arrangement is highly unusual for a mixed use building and promotes a situation where frequent commercial traffic can block residential access, encouraging illegal in-boulevard parking on Highway 2 or on adjacent properties. Any parking spillover within the boulevard area is also expected to negatively impact access to the Abutting Lands.

39Mr. Theodore testified the tandem parking arrangement also proposes a sub-standard access width between the front and rear of the property, removing maneuverability between the spaces. Given that there is no turnaround internal to the site, vehicles will have to navigate reversing an angled drive aisle between the building face and a recently constructed fence along the westerly property line. A 4.5m wide aisle is a minimum requirement for a one way drive aisle and allows for some obstruction such as snow; any further reduction increases the potential for conflict. When combined with the tandem parking arrangement, this simply reinforces the concern with the overall safe and orderly design of on-site parking and access.

40Mr. Theodore further stated the removal of a loading space requirement requires that loading must occur from the street. Mr. Theodore referred to the Witness Statement of Mr. Linton in that loading on the boulevard can potentially be hampered by this Application when considering the inadequate drive aisle access and the potential for in-boulevard parking, negatively impacting access to the Adjacent Lands.

41Mr. Theodore opined that from a planning and urban design perspective, that it is unacceptable, not desirable, and does not facilitate a positive public realm relationship.

42Mr. Theodore further opined the Application introduces safety concerns relative to vehicular and pedestrian movement on and off site, introduces new conflicts between public and private interests from Highway 2 and abutting landowners, and does not represent a built form and site design orientation that is safe, accessible or attractive. In my opinion subsections (h), (h.1), (n), (o), and R of Section 2 of the Planning Act are not met.

Does the Municipality have the authority to deem a Zoning By-law Amendment application complete or incomplete?

43The Tribunal heard, as it relates to a ZBA Application, the Planning Act states in Section 34(10.0.1) (b), that Council may by By-law establish a requirement for pre-consultation on all applications for ZBA.

44The Act further states in Section 34(10.2) that Council may require a person or public body to provide any other information or material that it considers it may need for consideration and in Section 34(10.3) it permits the Municipality to refuse to accept or further consider the application until the information and material required has been received.

45The Tribunal was informed that pre-consultation and complete application polices are found in Section 23.16 of the COP and a list of prescribed information and material needed to consider the application were provided to the Applicant.

46Mr. Theodore testified that the Municipality has the authority to refuse, accept or further consider an application until the information and material required have been received as part of determining a complete application. He opined that this authority was not undertaken appropriately on this Application.

47Mr. Theodore further testified, the Municipality deemed the application complete “at this time” on May 17, 2021, acknowledging that the application was missing information and material necessary for its appropriate review, specifically the parking and loading analysis report. That information was not provided, and no technical rationale was provided for not requiring this information in advance of the Staff Report recommending approval to Municipal Council.

48Mr. Theodore provided that it is unheard of in the current planning framework to process a planning application for a ZBA where a change of use is occurring with parking, loading and transportation implications, without having a professional assessment on transportation related matters.

49He further testified, that it is highly unusual that a Transportation Impact Study was not required given;

a) the extremely limited parking facilities, removal of a loading space requirement;

b) the conflict between residential use and commercial use where there is a high turnover of commercial use being proposed; and

c) a proposal that the commercial and residential users will share a substandard parking access to the property from a Regional Arterial Road. In order to determine whether this conflict can be resolved, in my experience careful study is required.

50Mr. Theodore further opined, given the concerns surrounding the transportation issues, the Municipality should hot have authorized the incomplete Application to be deemed complete. It was inappropriate for Municipal staff to have brought a recommendation that Council change the land use on the Subject Lands without having addressed this outstanding information in the application process.

Provincial Policy Statement (2020)

Is the By-law consistent with the Provincial Policy Statement, 2020, including but not limited to the following sections?

511.1.1. Healthy, livable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns

52Mr. Theodore opined that in regard to Policy 1.1.1,the Application does not promote a land use pattern that sustains the financial well-being of the Region and Municipality and will result in development that does not limit public health and safety concerns.

53Mr. Theodore testified the Application has not demonstrated that vehicles will be able to safely navigate from the northern parking area along the drive aisle to the south without conflicts to the building or westerly fence of the Property. It introduces two curb cuts along narrow frontage of a busy Regional Road, and a tandem parking arrangement that limits the viability of one of the two commercial parking spaces. These issues in combination create an environment where in-boulevard parking and loading will occur and will negatively impact safe access and use of the Adjacent Lands.

54Mr. Theodore stated the approval of this application will create conflicts that will result in infractions, putting a strain on the Municipality to spend resources responding to parking and loading matters related to the Site, which does not support the financial wellbeing of the municipality, and therefore is not consistent with the PPS.

Durham Region Official Plan

Does allowing the use of street parking and loading from the street or from a private driveway shared by commercial and residential users conform to the Durham Region Official Plan (“ROP”)?

55Mr. Theodore testified the Property is designated Hamlet on Schedule A, Map A5 of the ROP.

56Schedule C Map C-1 of the ROP establishes Highway 2 as a Type A Arterial Road. This is the highest order of Arterial Road established by the ROP, intended for high volumes of interregional transit, which is defined by the ROP as >10,000 daily trips based on the annual average daily traffic. Newtonville Road (Regional Road 18) is established as a Type B Arterial Road. The general requirements are the same as Type A Arterial Roads, but the minimum distances and maximum speeds are somewhat reduced.

57Schedule E, Table E7 of the ROP outlines Arterial Road classification and states that parking should be prohibited or restricted on roads of higher classification to provide for clearway conditions, while curbside parking may be accommodated on lower road classes. More specifically, the arterial class criteria states that parking should be prohibited or should be restricted from peak hours on both Arterial Road Classifications.

58The highest order of Arterial Roads are to be used primarily for the interregional movement of goods. Private access to this category of roads is expected to be consolidated with other landowners and are to generally be located a minimum of 80m (Type A) to 200 metres (Type B) apart along the road.

59Mr. Theodore stated that the highest volume of use of a convenience store or a restaurant use will occur during peak hours which is when parking on municipal roadways, even if permitted at other times, should be restricted.

60Mr. Theodore testified that the proposed Application would create an environment where in-boulevard loading is required for the functional operation of the site, and in-boulevard parking is anticipated to occur as spillover due to the proposed tandem parking. No Transportation Study has been undertaken by the Applicant to demonstrate that the proposed parking and loading arrangement, and the vehicular patterns that emerge from this arrangement respect the policy direction intended to protect the Arterial Road system. Based on the current proposal, the proposed parking and loading as proposed will not conform of the ROP.

Is it appropriate to allow for the reduction of driveway spacing on Regional Roads without amending the Regional Official Plan?

61The Tribunal heard, private access to the Arterial Roads is expected to be consolidated with other landowners and are to generally be located a minimum of 80m (Type A) to 200 metres (Type B) apart. Based on the Subject Lands, this would mean that each access along the north side of Highway 2 should generally be 200m apart.

62The Property and the Adjacent Lands have one access to Highway 2, which is a right for any property, represents an existing condition, and is in an orientation that best consolidates that form of access. The introduction of a second access on the Subject Lands for an accessible parking space, approximately 10m east of the drive aisle from Highway 2, is significantly less than the minimum 200m.

63Mr. Theodore provided that as the policy speaks to “generally”, he opined an amendment to the ROP would not be required, however such a substantial reduction should be justified through a Transportation Impact Study to confirm that the reduction respects the policy direction intended to project the Arterial Road system. Without a proper assessment and approval of this study, the Application would not conform to this policy direction of the ROP.

Municipality of Clarington Official Plan (COP)

Is the use of a holding provision

a. Appropriate;

b. Adequate to address potential traffic and parking conflicts; and

c. In conformity with the Municipality of Clarington Official Plan?

64Section 23.4.3 of the COP provides direction on the use of holding provisions, stating:

Holding provisions may be used to ensure, that prior to development or redevelopment, the following matters have been addressed and approved to the satisfaction of the Municipality:

a) Services and municipal works including roads;

b) Measures to protect natural areas;

c) Measures to mitigate the impact of development;

d) Submission of technical studies;

e) In a Waste Disposal Assessment Area, the matters referred to in Sections 3.7.12 to 3.7.15;

f) Execution of appropriate agreements; and/or

g) Any other requirements as may be deemed necessary by the Municipality including the implementation of the policies of this Plan.

65Mr. Theodore provided the opinion that while holding provisions are provided for in the COP, they should not be used unless the use itself can and should exist. They should only be used in circumstances where the condition is required in order to ensure technical feasibility of things that will firmly be in existence. They should not be used to resolve major land use conflicts, and particularly issues identified and reports required early in the approval process as needed to achieve a complete application.

66Mr. Theodore further opined, the use of a holding provision to resolve traffic and parking conflicts is not appropriate as there are transportation conflicts that have not been property assessed in advance of rezoning the Property. In the event a problem emerges through the assessment of a Transportation Impact Study, it must be shared and resolved through the originating public process and not after the fact. The general public including affected landowners have no rights of appeal when an application is made to lift a holding provision. Specifically, Section 23.2.1 of the COP states with emphasis added:

23.2.1 Prior to passing or adopting an Official Plan, Secondary Plan, Community Improvement Plan or Zoning By-law, or amendments thereto, the Municipality shall ensure that adequate information is made available to the public. For this purpose, the Municipality shall hold at least one statutory public meeting, at which time any person in attendance shall be afforded the opportunity to address Council about the matter.

67The Tribunal was informed that through the public process of the Application, there was substantial public input raising concern over traffic, parking loading and the relationship to Highway 2, all issues that a Transportation Impact Study would have appropriately assessed and could have changed the outcome of the application prior to its consideration at Municipal Council.

68Mr. Theodore testified that the Planning Staff Report speaks to the purpose of the holding provision on the site in the staff report, with emphasis added:

Where there are still concerns, Staff will continue to work with the applicant through the Site Plan Approval process to rectify. Until such time Staff are satisfied with the proposal, the (‘H’) Holding Symbol will remain on the property, to ensure no adverse impacts on the neighbouring community.

The Region has no concerns with the proposed rezoning of the subject site, provided that the applicant submits a parking analysis report to the Region’s satisfaction .The above requirement must be satisfied prior to the passing of the zoning By-law, or alternatively, be subject to an (‘H’) Holding Provision. The Holding Provision can be lifted once the applicant provides satisfactory evidence which addresses the above noted parking analysis pertaining to the subject site.

Staff are of the opinion that it is appropriate to proceed with recommending approval of the rezoning application, subject to a (‘H’) Holding Provision, as the proposed commercial use is consistent with, and conforms to provincial and local policy.

In Staff’s opinion, the proposed site-specific zone standards are appropriate and represent minor reductions from current zoning standards and therefore would result in minimal impact on neighbouring properties. However, it should be noted that the proposed Holding Provision would only be lifted once the Applicant provides satisfactory evidence which addresses all concerns listed in this report, including Sections 8.10 and 10.1, as well as enters into the appropriate development agreement with the Municipality of Clarington to address the final technical details related to the proposal.

69Mr. Theodore testified that the nature of the holding provision and what is required to lift this provision is not detailed in the approved By-law. Rather it is only found in the Staff Report. In evaluating other site-specific provisions in By-law 84-63, there are multiple examples where the conditions to lift the holding symbol are spelled out as a provision in the amendment. The lack of the holding provision in the site-specific Zoning By-law 2021- 069 is a significant oversight that can have implications on the municipality’s ability to enforce these requirements post-approval.

70Mr. Theodore opined that it is not the intent of the COP and should not be the intent of any planning instrument to permit the use of holding provisions to shield major planning issues from public scrutiny and challenge. It is not appropriate in this situation, and its use does not conform to the intent of the holding provision policies of the COP.

Does the By-law conform to the Municipality of Clarington’s Official Plan Hamlet policies? (COP)

71The Property is designated Hamlet in the COP. Section 12.4 of the COP and policy 12.4.1 provides the following:

12.4.1 The predominant use of lands within the Hamlet designation shall be detached residential dwellings. Other uses such as schools, community facilities, places of worship, general stores, home-based occupations, arts and craft shops, service stations and farm-related commercial uses are also permitted provided such uses are compatible with the surrounding uses and do not detract from the character of the Hamlet. Service stations shall also be subject to the policies of Section 10.10 of this Plan.

72Mr. Theodore opined that this policy calls for the primary use in the Hamlet designation to be detached residential dwellings. It also provides for other uses such as schools, community facilities, places of worship, general stores, home-based occupations, arts and craft shops, services stations and farm-related commercial uses. However, the Hamlet designation requires that those uses must be compatible with surrounding uses and not detract from the character of the Hamlet.

73He further provided, the compatibility concerns are focused on an attempt to reuse a site that is not designed to adequately accommodate all of the uses identified, especially ones that require frequent public access to the site. When considering the list of uses in relation to the size and configuration of this property, home based businesses could be acceptable on this site if specific limitations were established acknowledging the site limitations.

74Retrofitting an existing site where the intention is to have a general store and eating establishment in combination with existing residential functions is not appropriate for this existing on the site fabric as it exceeds the capability of Property. The parking arrangement of tandem commercial and residential parking will create conflict with the Abutting Lands relative to the anticipated off-site parking along Highway 2.

75The Tribunal was informed, based on the design of the site, there is no reasonable way that the Applicant’s site can be used for the general store and eating establishment use without spilling over into the public right of way and interfering with the access to the abutting commercial use.

76For a use to be compatible, it must coexist with the surrounding area without resulting in unacceptable adverse impact. The proposal, with a mixed residential and commercial use, introduces a tandem parking arrangement that has the ability to promote illegal parking onto the Appellant’s driveway, regardless of the recently installed fence, in order to avoid occupied commercial parking. Through observations of recent photos taken by the Appellant, that in-boulevard parking is occurring from the subject Property without the commercial component operating today.

77The Tribunal heard the Zoning By-law removes the requirement for loading, allowing this to occur off-site within the Regional Right of Way in close proximity to the Adjacent Lands’ driveway; access that can cause transportation conflicts. All of these matters have not been properly assessed from a transportation perspective and can also result in unacceptable adverse impact to surrounding properties including the Appellant’s.

78Mr. Theodore opined, that while the general store and eating establishment could be permitted uses in the Hamlet designation, that use is not automatically permitted, and it should not be permitted where it does not meet the threshold of compatibility in that the Application will result in unacceptable adverse impact of a planning nature. As a result, the Application does not conform to the Official Plan.

Does the By-law conform to the Municipality of Clarington’s Official Plan parking policies?

79Policy 5.4.12 and 5.4.13 of the Built Form policies of the COP, which states that:

5.4.13 Adequate off-street parking is required for all new development. All parking areas shall be designed to:

a) Minimize conflict with traffic on arterial roads;

b) Provide barrier-free;

c) Minimize the impact on the pedestrian environment;

d) Accommodate secure bicycle parking and storage areas for short term and long term visits;

e) Provide priority parking spaces for electric cars;

f) Provide landscape screening along street frontages;

g) Limit the number of parking spaces based on transit service and opportunities for shared parking; and

h) Minimize hard surface areas and replace with vegetation where possible.

80Mr. Theodore provided that the Application does not meet many of these design thresholds for adequate off-street parking. There are obvious conflicts with the traffic on Highway 2, especially given the manner in which loading is expected to occur. The plan will increase conflict with traffic on an arterial road, it will increase conflict with pedestrians and vehicles along Highway 2, and it will remove landscaping and vegetation from the front yard in favour of parking, increasing hard surface areas along the public realm. There are potential vehicle circulation conflicts between the Abutting Lands’ access, the proposed use of the boulevard for loading, and any use of parking within the boulevard that may result.

81He further provided that in accordance with the policies of the plan, and specifically policy 19.6.18 and Appendix C – Road Classifications, parking is generally prohibited or restricted on Type A Arterial Roads. There is a general acknowledgement that this requirement may not be practical, but the general intent of the COP is to prohibit parking within the Regional Right of Way. This is a matter that would be subject to Regional discretion at any time.

82Mr. Theodore opined, that the Application does not conform to the COP parking policies as the use of the site in this manner will create a number of conflicts that should not be permitted from a land use planning and urban design perspective.

Zoning By-law 2021-069

Should a Parking and Loading Analysis Report and/or a Transportation Impact Study have been assessed and considered as part of a decision? Had these studies been available, would they support passing the By-law?

83Mr. Theodore provided the opinion that a Parking and Loading Analysis report and a Transportation Impact Study should have been provided in advance of any Municipal Council decision to rezone the property. Mr. Theodore opined that had these studies been available, that they would not support the passing of the By-law in its current form.

Is a parking analysis required if the minimum number of parking spaces are provided in accordance with the applicable Zoning By-law?

84The Tribunal heard that the proposal seems to be an attempt to technically meet the minimum standard for a general store and residential unit, providing two parking spaces on site.

85Mr. Theodore stressed that there are two issues that remain unresolved:

1. The fact that the zone permits a range of commercial uses which the site specific Zoning By-law did not restrict. This includes an eating establishment and a dry cleaner’s establishment which if applied to the full 60 sq. m, would result in up to 4 and 7 additional required parking spaces respectively. Eating establishment is contemplated by the Application, and the site-specific Zoning By-law does not restrict this use or a dry cleaners to a minimum size. Such an assessment could have been conducted as part of a parking analysis.

2. The impracticality of accessing the two residential parking spaces behind the 1 commercial parking space. As a result, commercial parking space 2 on the Site Plan, to the west of the building is not a viable parking space as it physically restricts access to the rear two spaces in the rear. Given this restriction, the only viable parking is the barrier-free / accessible space, which in itself is limited to people with accessibility needs.

86Mr. Theodore testified, that while 4 parking spaces are proposed on a plan, practically speaking there would be no functional on-site parking for the majority of commercial visitors. A parking analysis, as required in pre-consultation, would have assisted in confirming this issue and therefore should be required.

Does the Proposal adequately address site and parking space access requirements?

87Mr. Theodore stated that the proposal does not adequately address site and parking space issues. Specifically, the proposal introduces an additional curb cut specifically for barrier-free access to the east on the Subject Lands, increasing vehicular conflict along Highway 2. The proposal introduces tandem parking for residential and commercial parking, which effectively nullifies the viability of commercial parking space 2 on the west side of the building. The proposal also reduces the drive aisle from 4.5m to 2.99m, creating a constrained space between the building and fencing which leaves little room for safe navigation. Overall, the proposed site and parking space access is not adequate for the proposed uses on the Subject Lands.

Does the By-law promote compatibility issues that result in unacceptable adverse impacts to neighbouring properties?

Are the proposed commercial uses compatible with adjacent low-density residential uses?

88Mr. Theodore jointly opined that regarding Issues 14 and 15, the proposal and the Application do not meet the threshold of compatibility, which is a qualifier to permitting a commercial use in the Hamlet designation in the COP. The Application will result in unacceptable adverse impact of a planning nature on site and to the surrounding context.

Does the By-law represent good planning?

89Mr. Theodore provided the opinion that the By-law does not represent good planning. The By-law was approved having failed to consider valid traffic, parking, accessibility and safety concerns of not only the Appellant’s site, but the Applicant’s site. The use of a non-appealable holding provision is not an appropriate mechanism to determine if major planning issues such as parking, loading, traffic and compatibility have been addressed to permit a change in land use. Finally, the By-law itself has not been sufficiently crafted to secure the necessary studies and analysis purported to be required by the Municipality in the holding provision.

90Mr. Theodore concluded that the approved By-law does not represent good planning and is not in the public interest and as such, the Tribunal should allow the appeal, and refuse the Application.

TRANSPORTATION CONTEXT

91Mr. Linton testified that his firm, Crozier & Associates, was retained to provide transportation engineering services opinions with respect to the ZBA application for the Property.

92Mr. Linton stated that no transportation study or parking study was submitted to support the application. Per the Staff Report #PDS-043-21, a site-specific Holding Provision was recommended. In order to lift the Holding Provision a transportation and parking study would be required to be submitted to the Municipality’s and Region’s satisfaction prior to the lifting of the Holding provision.

PROPOSED ZONING BY-LAW AMENDMENT

Mr. Linton testified:

Drive Aisle

93The ZBA proposes a drive aisle that is approximately 3.6 metres at the property line and tapers to a width of 2.99 metres at the narrowest point following the removal of a portion of the west side of the existing dwelling. At this point, the driveway bends easterly into the rear of the property where the drive aisle reaches a width of 4.5 metres approaching the garage to the north.

94The proposed width is contrary to the requirement of driveways to be 4.5 metres for one-way and 6.0 metres for two-way traffic per the parent Zoning By-law 84-63. The proposed driveway does not reach a width of 4.5 metres until approaching the existing garage at the north end of the site.

95Further to the Zoning By-law requirements, Section 5.01 of the Municipality of Clarington’s Design Guidelines require single detached residential properties to have a driveway width of 4.6 to 6.0 metres. As the Subject Property is a single detached dwelling, the driveway width is also required to be at least 4.6 metres.

96Townhouses are permitted to have driveway widths of 3.0 metres. However, townhouses have noticeable design differences between single detached or semi-detached houses. Townhouse units typically have garages that abut each other wherein if each unit has a 3.0 metre driveway, the combined pavement width equates to at least 6.0 metres. Driveways for townhouses are also typically shorter in length compared to single or semi-detached houses as garages are either at the front of the house, or at the rear accessed by a rear laneway. In addition, townhouse driveways do not typically abut physical obstructions such as fences or building facades along the entire drive aisle length, as is the case with the Subject Property.

97No transportation analysis, including AutoTURN vehicle maneuvering analysis, was submitted to support the reduction in standards to the Zoning By-law or the Design Guideline requirements. Therefore, the applicant has not demonstrated that the proposed drive aisle reduction is supportable from a transportation perspective, is safe, and would not result in negative impacts (i.e., conflicts and collisions with the fixed fence along the westerly neighbouring property line.

98Mr. Linton opined that the proposed driveway width is inadequate due to :

• Limitations in Vehicle Maneuverability

• Safety Concerns & Collision Risks

99Vehicles will be required to reverse much of the length of the driveway between fixed objects (neighbouring fence to the west and building face to the east) in order to egress the site, while simultaneously turning at the narrowest point.

100In practical circumstances, this substandard width can be expected to further decrease when considering snow storage/windrows during regular winter weather events where the clearance can be expected to decrease below the 2.99 metre drive aisle portion illustrated on the Site Plan. There has been no demonstration that vehicles will be able to safely navigate from the northernmost parking space along the drive aisle to egress the property without conflicts and collision risks with the westerly fence of the neighbouring property.

101The Site Plan illustrates an existing doorway as part of the portion of the dwelling being removed to facilitate the 2.99 metre drive aisle. It is unclear if a similar opening will be maintained following the removal, or whether access to the residential unit would solely be available through the proposed commercial area at the front of the building. Should a similar opening be maintained in this area, it would result in a door opening directly within a drive aisle where building occupants would exit directly within vehicle travel paths without a buffer. This would result in an internal safety concern to the Subject Site in addition to the collision risks with the westerly fence of the neighbouring property as a result of inadequate drive aisle width.

102The Site Plan supporting the proposed ZBA proposes four (4) parking spaces in total, three (3) parking spaces are illustrated to be in tandem. In this configuration, the northernmost space illustrated as Parking Space #4 within the garage cannot egress the property without Parking Space#3 or Parking Space #2 being vacant.

103In the instance of Parking Space #2 being vacant, a car within Parking Space #3 or #4 would be required to reverse a significant distance between fixed objects (fence to the west, building face to the west) in only a 2.99 metre drive aisle to egress the property as no turnaround area is provided.

104Mr. Linton further provided that if Parking Space #2 is occupied, motorists intending to access Parking Space #3 or #4 would be required to wait until Parking Space #2 is vacant in order to traverse the drive aisle and would otherwise be forced to park within the boulevard or on-the street due to inadequate access to parking being provided.

105As a result of these issues described above, the commercial parking space (#2) is not considered viable as its occupation by customers would physically restrict access to the proposed drive aisle as well as the two tandem residential spaces to the rear of the property. In this regard, only one accessible parking space (#1) is considered feasible.

106The removal of Parking Space #2 would result in a practical parking supply of three (3) spaces comprised of two (2) tandem residential spaces and one (1) commercial space.

107Mr. Linton acknowledged that the proposed tandem parking spaces (#3 and #4) would be considered appropriate if they are utilized for residential use only as noted on the Site Plan. Tandem parking would not be considered appropriate should these spaces or any other tandem configuration be considered for commercial or multiple uses.

108Mr. Linton summarized the proposed drive aisle width of 2.99 metres is considered insufficient to support the safe maneuverability of vehicles within the site, with adverse impacts to the neighbouring site’s operations and the safe functioning of the neighbouring access. The applicant has not demonstrated that the proposal will result in safe circulation and feasible parking space access, therefore the proposed drive aisle width cannot be considered supportable at this time.

109Mr. Linton opined there are significant safety concerns, collision risks and potential adverse impacts to the neighboring property’s operations should visitors of the Subject Site be forced to park and queue in front of and within the neighbouring property’s parking lot

Parking & Loading

110Mr. Linton provided that the Zoning By-law proposes up to 60 square metres of commercial use including “general store” and “eating establishment” uses. The commercial use would be permitted in addition to a residential dwelling.

111As per the Municipality’s Zoning By-law 84-63, the residential use requires two (2) parking spaces. The commercial uses permitted by the Zoning-By-law relating to the maximum Gross Floor Area (GFA) of 60 square metres requires varying parking rates.

Parking Rates per Municipality of Clarington’s Zoning By-law 84-63

Land use	Permitted Land Use (ZBL Category)	Parking Rate	Parking Requirement
Residential	Residential Unit Other than specified herein	2 spaces per dwelling	2 spaces
Commercial	Retail Store, Hardware Store, Souvenir Shop, Butcher Shop, Bakery, Office, Convenience Store Dry Cleaners Establishment Eating Establishment	1 space per 30 m2 GFA 1 space per 10 m2 GFA 1 space per 7 m2 GFA	2 spaces 6 spaces 9 spaces
Total Requirement (Residential + Commercial)			4 spaces to 11 spaces

112Mr. Linton provided that the residential and commercial uses permitted result in a total Zoning By-law requirement of four (4) to eleven (11) spaces. As the Site Plan only illustrates a total of four (4) spaces, the supply is deficient by up to seven (7) spaces.

113Noting the impracticality of independently accessing the three tandem spaces due to Parking Space #2 not being viable as it physically restricts access to the rear spaces, the Zoning By-law parking supply can be considered three (3) spaces – including one (1) accessible commercial space (Space #1).

114Mr. Linton stated, due to having only one (1) viable commercial parking space, a deficiency of up to eight (8) commercial spaces can result should an eating establishment occupy the commercial space or part thereof.

115Additionally, as the single viable commercial parking space is proposed to be an accessible space, then practically, there will be no on-site parking for many commercial visitors.

116Mr. Linton further stated, as a result of this parking deficiency, any commercial parking demand beyond the single accessible space could only be accommodated by parking in the paved boulevard, or on neighbouring streets such as Newtonville Road, north of the property, or Hill Street, east of the neighbouring commercial property, or within the boulevard fronting the Subject Site potentially inhibiting the neighbouring access and safe circulation.

117Mr. Linton testified as the neighbouring property’s access is also via the boulevard area, the provision of inadequate off-street parking supply is expected to negatively impact the neighbouring lands. This is also of particular concern as there are parking prohibitions along Highway 2 fronting the site; therefore, any parking spillover within the boulevard area is expected to negatively impact access to the neighbouring property. These issues can also potentially be compounded when considering inadequate drive aisle access and potential for in-boulevard parking and loading resultant from an undersupply of commercial parking offstreet.

118Mr. Linton further provided that the Site Plan identifies the parking spaces as two (2) residential spaces and two (2) commercial spaces. However as discussed in Paragraph 21, one of the commercial spaces (Space #2) is not considered viable; therefore the commercial parking supply is actually one (1) space. As the remaining commercial parking space (#1) is designated as an accessible space, its use is restricted for the exclusive use of persons with a disability. This will result in the only available parking space being restricted to accessible use only, and many commercial visitors will not have access to off-street parking.

119The Tribunal heard that the Zoning By-law and Site Plan do not restrict employees of the proposed commercial use to be residents of the dwelling unit. Should an employee not residing in the dwelling unit require parking, only the accessible parking space (#1) is useable. If used by an employee there would be no parking space available for commercial visitors, requiring commercial visitors to park within the boulevard.

120The Tribunal further heard that the Applicant has not provided any analysis to support the By-law proposal wherein up to 60 square metres of commercial use including “eating establishment” is permitted and can be satisfied with the single viable accessible commercial parking space.

121The Site Plan only supporting a single viable commercial parking space, results in the minimum requirement of commercial parking not being satisfied, even if the commercial space was exclusively occupied by a general store use or use that required the lowest parking rate required by the Zoning By-law. This parking deficiency is significantly increased when considering an eating establishment use as permitted in the proposed Zoning By-law.

122The Tribunal was informed one off-site loading space is proposed within the boulevard area fronting the Subject Site. The loading space is proposed to be 7.5 metres long and 3.0 metres wide. The proposed loading space satisfies the Zoning By-law requirement for dimensions but does not satisfy the By-law’s requirement for the loading space to be located on-site.

123The loading space proposed in boulevard fronting the Subject Site is expected to result in conflicts and circulation issues by reducing the available drive aisle required to support safe two-way traffic flow. This drive aisle area will be further reduced should vehicles be required to park within the boulevard area as a result of an undersupply of parking provided on the Subject Site. These issues are expected to result in maneuverability constraints at the neighbouring property.

124Mr. Linton provided that given that the level of parking deficiencies that can result from the permissible uses in the Zoning By-law conflicts with the parking supply proposed, and when compounded with the loading space issues in this context; he is of the opinion the Zoning By-law is considered premature without addressing these concerns due to the potential adverse impact to neighbouring properties (site operations, circulation and safety) and the immediate public network.

Traffic Operations

125Mr. Linton stated that no traffic operations assessment was undertaken to confirm that the Zoning By-law proposal of adding up to 60 square metres can be supported.

126He opined that the nature of the uses permitted in the Zoning By-law and associated GFA limits would not typically result in traffic operations issues on the external boundary road network and adjacent intersections from a capacity perspective. However, there are several potential conflicts that may result including vehicle circulation between adjacent site accesses and the proposed use of the boulevard for loading in consideration of the potential for parking within the boulevard due to insufficient commercial parking on-site.

127Mr. Linton further provided that high turnover uses such as eating establishments tend to have relatively high trip generation rates. Using the Institute of Transportation Engineers’ (ITE) Trip Generation Manual 11th Edition, trip generation forecasts associated with the proposed change in use were reviewed.

128Within the ITE Trip generation manual, the uses most closely aligned with the proposed ZBA’s commercial uses which include a general store and eating establishment are:

i) Coffee/Donut Shop without drive-through window - This land use includes any coffee and donut restaurant that does not have a drive-through window. The restaurant sells freshly brewed coffee (along with coffee-related accessories) and a variety of food/drink products such as donuts, bagels, breads, muffins, cakes, sandwiches, wraps, salads, and other hot and cold beverages. The restaurant marketing and sales may emphasize coffee beverages over food (or vice versa). A coffee/donut shop typically holds long store hours (more than 15 hours) with an early morning opening. Limited indoor seating is generally provided for patrons, but table service is not provided.

ii) Convenience Store – A convenience store is a small retail business that sells grocery and other everyday items that a person may need or want as a matter of convenience. Convenience stores are typically located along major thoroughfares to optimize motorist convenience. Extended hours of operation (with many open 24 hours, 7 days a week) further support the convenience of the store. A convenience store is also commonly called a convenience market. The product mix typically includes pre-packaged grocery items, beverages, dairy products, snack foods, confectionary, tobacco products, over-the-counter drugs, and toiletries. A convenience store may sell alcohol, often limited to beer and wine.

Two-way Trip Generation Summary

ITE Land Use Category	ITE Land Use Code	GFA	Two-Way Peak Hour Trip Generation (trips per hour) Weekday PM Saturday Peak
Coffee/Donut Shop without Drive-Through Window	LUC: 936	60 m2 (645 ft2)	21 trips (32.29 per 1,000 sq. ft) 34 trips (49.11 per 100 sq. ft)
Convenience Store	LUC: 851	60 m2 (645 ft2)	34 trips (49.11 per 100 sq.) 55 trips (79.12 per 1,000 sq. ft)

129Mr. Linton provided that based on the commercial uses permitted in the proposed ZBA, weekday pm peak hour trip generation can range between 21 and 34 two-way trips per hour and Saturday peak hour trips can range between 37 and 55 two-way trips per hour.

130Mr. Linton acknowledged that given the surrounding residential densities and area context, the ITE trip generation forecasts may potentially be overstated. However, a transportation study submitted by the applicant would typically confirm local context with respect to proposed trip generation reductions. In the absence of such review, these issues regarding potential conflicts within the boulevard and with the neighboring property’s access remain unaddressed.

131The Tribunal heard the transportation impacts of the commercial activity should be reviewed, particularly pertaining to the boulevard area to demonstrate that no adverse impacts to the neighbouring commercial property access or operation will occur given the limited boulevard area available.

132Mr. Linton opined a transportation analysis should be required to assess the site access conflicts, vehicle circulation, and loading concerns given the impacts of the proposed commercial use including eating establishment permissible in the proposed Zoning By-law. Such review should also consider the context of the in-effect uses on the neighbouring commercial property with vehicle circulation conflicts within the limited boulevard area available fronting both the Subject Property and neighbouring property.

Issues List

133Mr. Linton provided testimony to the relevant Issues List that pertain to Transportation.

Is the use of a holding provision?

a. Appropriate;

b. Adequate to address potential traffic and parking conflicts; and

c. In conformity with the Municipality of Clarington Official Plan?

134Mr. Linton testified it is unusual to implement a holding provision prior to the undertaking of any traffic or parking analysis, upon which a ZBA may be based. It is also unusual particularly when the proposed ZBA has demonstrated compatibility issues and concerns regarding whether transportation-related issues can be feasibly addressed.

135Mr. Linton provided that holding provisions are typically utilized to ensure that infrastructure improvements upon which a development may rely upon are either implemented or have funding secured. Examples of these infrastructure improvements can include intersection improvements, new auxiliary lanes, securing of off-site parking or ensuring specific Transportation Demand Management measures that were recommended have been implemented to the satisfaction of municipal staff. In all of these scenarios, the holding provisions are based on prior transportation analysis.

136Mr. Linton opined the use of a holding provision, especially prior to the undertaking of any transportation analysis, is not adequate to address the potential traffic and parking conflicts I have detailed earlier in this witness statement. No potential mitigation measures have been identified nor has the feasibility of any potential mitigation measures been evaluated prior to enacting the ZBA. In addition, the lifting of holding provisions is not subject to a public review process; therefore permitting transportation analysis to occur only during the lifting of a holding provision for Site Plan Applications effectively excludes public discourse and the ability for any potentially affected parties to resolve issues.

Should a Parking and Loading Analysis Report and/or a Transportation Impact Study have been assessed and considered as part of a decision? Had these studies been available, would they support passing the By-law?

137Mr. Linton opined that a Parking and Loading Analysis and Transportation Impact Study should have been considered as part of a decision. In the absence of either of these studies, there is no technical basis on determining if transportation-related issues have been, or can be, satisfactorily addressed to mitigate public impacts.

138The proposed By-law would not be supportable given inadequate commercial parking supply and unaddressed vehicle maneuverability and circulation conflicts identified, resultant from the proposed drive aisle reduction and commercial uses.

Is a parking analysis required if the minimum number of parking spaces are provided in accordance with the applicable ZBL?

139Mr. Linton stated that a parking analysis is not required if the minimum number of parking spaces are provided in accordance with the Zoning By-law; confirmation of the requirements and supply should suffice. However, in my experience, parking analysis is always required in instances where minimum parking requirements exceed the proposed parking supply. Parking analysis would be required to demonstrate that the Zoning By-law requirements are conservative in the context of the application and that the proposed supply can be considered adequate. Alternately, parking analysis would be typically required to identify arrangements to secure off-site parking or other arrangements with the Municipality to address parking supply concerns with the Zoning By-law.

140The proposed ZBA demonstrates a parking deficiency between one (1) and eight (8) commercial parking spaces for the Subject Site. Parking analysis is required to demonstrate how the forecasted parking demand can be accommodated without negatively impacting the surrounding uses.

Does a Regional Road have the capacity to accommodate the incremental increase in traffic from the proposed new commercial land use?

141Mr. Linton submitted no transportation analysis has been provided by the applicant to determine if capacity issues may exist or if mitigation measures are required.

142In these circumstances of a relatively small development application, traffic operations issues are not typical on the external boundary road network’s intersections given the trip generation forecasts associated with the permissible uses in the ZBA.

143The Tribunal heard, as the boulevard area is Regional property that the Subject Lands and neighbouring property rely upon to access their sites, insufficient information has been provided to demonstrate that additional vehicle circulation resultant from the change in use to permit commercial uses, including eating establishments, can safely be accommodated within the boulevard area. Moreover, the impacts of the incremental vehicle circulation in addition to the undersupply of parking should also be evaluated due to the resultant adverse impacts.

Has sufficient information been provided to assess the transportation and parking impacts of the proposed development?

144Mr. Linton opined that inadequate information has been provided to assess transportation and parking impacts of the proposed development. No transportation or parking analysis was provided by the application as part of the ZBA application. In addition, the proposed loading within the boulevard compounded with the undersupply of commercial parking has not been addressed given the potential impacts to neighbouring property access, circulation, operations and safety.

Does the Proposal adequately address site and parking space access requirements?

145Mr. Linton opined the proposal does not adequately address site and parking space access requirements. Significant parking space access and site access requirements remain unaddressed with the potential to result in adverse impacts to the neighbouring property and general safety concerns within the immediate area.

146The Tribunal heard that based on the Proposal, only two (2) tandem residential parking spaces and one (1) accessible commercial parking space can independently be accessed. Moreover, the 2.99 metre drive aisle proposed at its narrowest point is substandard compared to the minimum requirement of 4.5 metres per the Municipality’s Zoning By-law. In even considering the approximate 3.6 metre width at the property line, this substandard aisle width is proposed along most of the drive aisle length.

147Motorists parked in the northernmost garage space will be required to reverse along portions of a driveway that are curved, with substandard aisle widths, and fixed objects on the west (fence) and east sides (building face).

148Mr. Linton testified the proposal raises safety concerns to circulation and potential adverse impacts to the neighboring property. The applicant also has not demonstrated how the proposal will support safe maneuverability and access to parking spaces in order to mitigate impacts to the neighbouring property.

149Mr. Linton concluded with the opinion the Proposal can be expected to negatively impact the immediate study area, including operations at the neighbouring property due to inadequate on-site parking, insufficient drive aisle width and potential circulation issues in the paved boulevard.

PARKING CONTEXT

150Ms. Serena Rolle provided nonprofessional testimony regarding parking.

151Ms. Rolle testified she is one of the owners of the building located at 4502 Highway 2 and is concerned with the persistent parking constraints on the boulevard.

152Ms. Rolle through her testimony, provided multiple images of parking issues on the boulevard possibly of her neighbours parking on the boulevard and directly on her property.

153Ms. Rolle provided that many occurrences of double and triple parking ensue throughout the day on the boulevard and that it regularly interferes with access to her property over the curb cut that they share with their neighbour.

154Mr. Rolle testified that she has contacted the Township on many occasions seeking assistance in parking enforcement. The Township advised her that an “open investigation” is under way.

155Ms. Rolle posed the question to the Township:

Why are tickets for parking violations not being regularly issued at 4504 highway 2 road? Clarington’s websites states parking is allowed for a maximum of 3 hours, yet these vehicles exceed that time frame. Our parking is regularly blocked to our store with this parking.

The Township responded;

Municipal Law Enforcement Officers are actively enforcing the provisions of the Traffic and Parking By-law in this area, however we do not have the resources to be present at this location on all days or at all times. You are correct that there is a general prohibition in the By-law that prohibits street parking for more than 3 hours at a time, and this has been identified as an issue to be addressed as part of the enforcement action. The By-law also prohibits obstruction of traffic, and this is another issue identified for enforcement at this location. Please continue to report any infractions that you observe to the Municipal Law Enforcement Office as this will assist with our enforcement efforts. The pictures and complaint in your first email have been provided to Municipal Law Enforcement for review.

156Ms. Rolle provided no further testimony.

MUNICIPALITY’S EVIDENCE

PLANNING CONTEXT

157Ms. Tapp testified that she is the primary author of Staff Report PDS-043-21 (the “Staff Report”) that was presented to Clarington Council to recommend approval of the ZBA, subject to a holding provision.

158Ms. Tapp provided testimony through her answers to the approved Issues List.

Does Zoning By-law 2021-069 (the “By-law”) have appropriate regard to the matters of provincial interest in s.2 of the Planning Act?

159Ms. Tapp provided that this Issue refers to the matters of provincial interest in S.2 of the Planning Act (“Act”). Section 2 of the Act requires that a Municipality, in carrying out its responsibilities under the Act, shall have regard to matters of Provincial Interest. In total, there are 20 matters of Provincial Interest.

160Ms. Tapp stated that in making a recommendation to Clarington Council, the Staff Report included a detailed review of the development application.

161The Principles of the Clarington Official Plan (the “COP”) include sustainable development, healthy communities, and growth management. These principles reflect the matters of Provincial Interest from the Act. All applications are reviewed against the Vision and Principles of the COP.

162Ms. Tapp provided that section 6 of the Staff Report indicates the proposed development conforms with the COP, including those provisions of the COP which speak to matters of Provincial interest.

163Ms. Tapp opined the proposal considers the appropriate matters of Provincial Interest, as listed in the Act.

Does the Municipality have the authority to deem a Zoning By-law Amendment application complete or incomplete?

164Ms. Tapp testified that the Municipality of Clarington Planning and Infrastructure Department is responsible for land use development and/or changes. Section 10.4 of the Act requires the Municipality to provide the applicant notice of a complete or incomplete application within 30 days from the date that the application and fees are received.

165On June 11, 2007, Clarington Council passed By-law 2007-132 mandating a pre-consultation with municipal staff be undertaken prior to the submission and acceptance of ZBA applications.

166Ms. Tap provided that the process for receiving and deeming applications complete with the Municipality of Clarington begins with the pre-consultation meeting.

167After the pre-consultation meeting, staff provides the applicant with signed Minutes of Pre-consultation. The minutes will contain a list of information and materials that will be required to process the subject applications. The applicant and/or owner will be required to sign that they concur with the minutes and submit the minutes as part of a complete application.

168Ms. Tapp opined that the Municipality of Clarington has the authority to deem a ZBA application complete or incomplete per the requirements of the Act in conjunction with the list of requirements as identified in the Pre-consultation Minutes.

Is the By-law consistent with the Provincial Policy Statement, 2020, including but not limited to the following sections: 1.1.1 a), c) and 1.1.3.4?

169Ms. Tapp testified that the current Provincial Policy Statement 2020 (“PPS 2020”) came into effect on May 1, 2020. PPS 2020 applies to all planning decisions made on or after May 1, 2020 (Policy 4.1)

170Section 1.1.1 a) and c) of the PPS 2020 provide direction on managing and directing land use to achieve efficient and resilient development and land use patterns:

1.1.1 Healthy, livable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns.

171Section 1.1.3.4 of the PPS 2020 is part of a larger section of the PPS 2020 that provides direction on development in settlement areas:

1.1.3.4 Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.

172Ms. Tapp provided that the site is located within the Settlement Area of Newtonville. The new development uses existing infrastructure and public services appropriately, having regard for the site’s surroundings. The proposed development promotes compact development forms.

173Ms. Tapp opined that the proposal is consistent with the PPS 2020.

Does allowing the use of street parking and loading from the street or from a private driveway shared by commercial and residential users conform to the Durham Region Official Plan? (ROP)

174The Tribunal heard that the ROP does not regulate street parking and loading shared by commercial and residential users.

Policy 9B.1.3 states:

Hamlets shall be the predominant location for residential and social, commercial and employment development serving the needs of the surrounding rural area. Policies 9B.2.3 b and c state that Hamlets shall be developed in harmony with surrounding uses and may include employment uses and commercial uses that meet the needs of the residents of the Hamlet and surrounding rural area.

175Ms. Tapp provided that the proposed commercial use of the subject lands and its location on Highway 2 should contribute to the social, commercial, and employment development of the Newtonville Hamlet, serving the needs of the residents of the Hamlet and the surrounding rural area.

Policy 9B.2.4 b) states:

that the predominance of residential uses shall serve to guide the preservation, cultural attributes, and historical heritage of the community.

176Ms. Tapp provided that the proposed development will continue to operate as a residence as its primary use with an added commercial use.

Policy 9B.2.6 states:

that development within Hamlets shall be individually serviced with private sewage disposal systems.

177Ms. Tapp provided that the subject proposal is serviced by a private sewage disposal system and will be expanded as determined necessary.

178Ms. Tapp opined the proposed use conforms with the policies of the ROP.

Is it appropriate to allow for the reduction of driveway spacing on Regional Roads without amending the Regional Official Plan?

179The Tribunal heard the ROP does not regulate driveway spacing on Regional Roads.

180Ms. Tapp opined the proposed use conforms with the policies of the ROP and therefore an amendment would not be required.

Is the use of a holding provision,

a. Appropriate

b. Adequate to address potential traffic and parking conflicts; and

c .In conformity with the Clarington Official Plan?(COP)

181The Tribunal heard Section 36 of the Act permits a Council of a local municipality to implement a holding “H” symbol in conjunction with any use designation, provided there is an official plan in effect in the local municipality that contains provisions relating to the use of the holding symbol.

Section 23.4.2 states:

The Municipality, where deemed necessary, may apply holding provisions pursuant to the Planning Act. The holding provision will be identified by the symbol “H” as a prefix to the zone described in the Zoning By-law. Such holding provisions shall assist The Municipality in achieving its specific planning objectives and ensure that any development or redevelopment proceeds in accordance with the policies of this Plan.

Section 23.4.3 states:

Holding provisions may be used to ensure, that prior to development or redevelopment, the following matters have been addressed and approved to the satisfaction of the Municipality:

a. Services and municipal works including roads;

b. Measures to protect natural areas;

c. Measures to mitigate the impact of development;

d. Submission of technical studies;

e. In a Waste Disposal Assessment Area, the matters referred to in Sections 3.7.12 to 3.7.15;

f. Execution of appropriate agreements; and/or

g. Any other requirements as may be deemed necessary by the Municipality including the implementation of the policies of this Plan

182Ms. Tapp informed the Tribunal Holding By-laws allow future uses for land or buildings but delay development until conditions are satisfied. Holding provisions may be deemed appropriate to delay development until the Municipality has received technical studies (such as traffic and parking analyses) as well as any other requirements deemed necessary by the Municipality.

183Ms. Tapp provided that in section 12.10 of the Staff Report, the opinion is that it is appropriate with recommending approval of the rezoning application, subject to an (‘H’) Holding Provision. However, it should be noted that the proposed Holding Provision would only be lifted once the Applicant provides satisfactory evidence which addresses all concerns listed in this report as well as enters into the appropriate development agreement with the Municipality of Clarington to address the final technical details related to the proposal.

184The Tribunal was informed that sections 8.8, 8.9 and 10.1 of the Staff Report outline the concerns listed by members of the public and commenting agencies related to the development application. The concerns were generally related to the site plan approval process. Staff, in conformity with the policies of the COP, recommended a Holding Provision to ensure appropriate time to work with the applicant through the ongoing site plan approval process to ensure the public and agency comments are addressed prior to the lifting of the Holding Provision.

185Ms. Tapp stated that on July 22, 2021 Clarington Staff received comments from the Region of Durham regarding the proposed rezoning application. In summary, the Region’s comments stated they had no concerns with the proposed rezoning provided the applicant submits a parking analysis report to the Region’s Satisfaction. The Regions comments provided the option of a “H” Holding Provision as an interim solution, whilst the site plan was ongoing. The Holding Provision is to be lifted once the applicant provides a satisfactory Parking Analysis, through the site plan approval process. Given the subject property fronts onto a Regional Road, the Municipality often relies on Regional Staff to determine the appropriate analyses and requirements with regard to traffic and parking. Further, Staff deemed it appropriate to require a Traffic and Parking Analysis with a subsequent site plan submission, following the concerns heard from public regarding the proposal, which included, but were not limited to Traffic and Parking concerns.

186Ms. Tapp opined that the use of a Holding provision is appropriate, adequate to address potential traffic and parking conflicts, and in conformity with the Clarington Official Plan.

Does the By-law conform to the Municipality of Clarington Official Plan (COP) Hamlet policies?

187Ms. Tapp provided that the Staff Report indicates the proposed development conforms with the Hamlet Policies of the COP.

Policy 12.4.1 states:

in addition to residential uses, other uses such as general stores provided the use is compatible with the current surrounding uses and does not detract from the character of the Hamlet.

188Ms. Tapp stated the proposed development does not detract from the character of the Hamlet and is a compatible use with the surrounding areas.

Policy 12.4.2 states:

a) that development within a Hamlet shall complement and enhance the historic character of the Hamlet.

189Ms. Tapp provided that the proposed development should enhance the historic character of the Hamlet by adding to the liveliness of the streetscape:

Policy 12.4. 2 states:

d) states that development within a Hamlet shall consider opportunities and innovations to provide a more compact settlement form.

190The Tribunal heard the proposal is an infill development as it is within a developed area in Newtonville and will be adding a new use to an existing property.

Policy 12.4.5 states:

a) that all development shall be serviced by municipal water supply.

191The proposed development will be serviced by municipal water.

192Ms. Tapp opined the proposed development conforms with the COP Hamlet policies.

Does the By-law conform to the Municipality of Clarington’s Official Plan parking policies?

193The Tribunal heard that Policies 5.4.12 and 5.4.13 outline the parking policies within the COP.

194Ms. Tapp stated that new development should provide adequate off-street parking. The proposed application proposes sufficient off-street parking to accommodate the commercial use, in compliance with the existing Zoning By-law 84-63 parking regulations for commercial uses.

195Ms. Tapp further provided that the subject property fronts onto a Regional Road. The Region of Durham provided comments on the development application stating:

The Region has no concerns with the proposed rezoning of the subject site, provided that the applicant submits a parking analysis report to the Region’s satisfaction. The above requirement must be satisfied prior to the passing of the zoning By-law, or alternatively, be subject to an (‘H’) Holding Provision. The Holding Provision can be lifted once the applicant provides satisfactory evidence which addresses the above noted parking analysis pertaining to the subject site.

196Ms. Tapp provided that a Parking Analysis will be required through the site plan approval process, prior to removing the Holding Provision and thus opined the proposed development conforms with the Clarington Official Plan Hamlet policies.

Should a Parking and Loading Analysis Report and/or a Transportation Impact Study have been assessed and considered in advance of a decision? Had these studies been available, would they support passing the By-law?

197The Tribunal heard whether a Parking and Loading Analysis Report and/or Transportation Impact Study should have been assessed and considered in advance of a decision.

198Ms. Tapp testified that the proposed parking for the development proposal conforms with the parking requirements of the COP and complies with existing regulations of Zoning By-law 84-63. The proposal fronts onto a Regional Road, Regional staffed deemed it appropriate to proceed with a recommendation report, subject to a Holding Provision for this application.

199Ms. Tapp further testified that a holding provision may be deemed appropriate to delay development until the Municipality has received technical studies (such as traffic and parking analyses) as well as any other requirements deemed necessary by the Municipality.

200Ms. Tapp opined a Parking and Loading Analysis Report and/or a Transportation Impact Study was not required prior to Council making a decision on the By-law.

Is a parking analysis required if the minimum number of parking spaces are provided in accordance with the applicable zoning By-law?

201Ms. Tapp reiterated that the Region of Durham provided comments on the development application and had no concerns with the proposed re-zoning of the subject site provided that specific conditions be met. Those conditions related to the submissions of the Applicant of a parking analysis to the satisfaction of the Region. The Holding Provision would be lifted once the applicant provides satisfactory evidence which addresses the above noted parking analysis pertaining to the subject site.

202Ms. Tapp testified that a Parking Analysis is required through the site plan approval process, prior to removing the Holding Provision.

Does a Regional Road have the capacity to accommodate the incremental increase in traffic from the proposed new commercial land use?

203Ms. Tapp opined and relies upon the Region of Durham comment that there are no concerns with the traffic generated from the proposed new commercial land use, to conclude that there are no capacity issues.

Has sufficient information been provided to assess the transportation and parking impacts of the proposed development?

204Ms. Tapp testified that the proposed parking for the development proposal conforms with the parking requirements of the COP and complies with the existing regulations of Zoning By-law 84-63. The proposal fronts onto a Regional Road, and Regional staff deemed it appropriate to proceed with a recommendation report, subject to a Holding Provision for this application.

205Ms. Tapp reiterated that holding provisions may be deemed appropriate to delay development until the Municipality has received technical studies (such as traffic and parking analyses) as well as any other requirements deemed necessary by the Municipality.

206Ms. Tapp opined that sufficient information will be provided through the site plan approval process, prior to removing the Holding Provision.

Does the Proposal adequately address site and parking space access requirements?

207Ms. Tapp opined a Parking and Loading Analysis Report and/or a Transportation Impact Study submitted as part of the ongoing site plan application process will adequately address any site and parking space access requirements in an appropriate manner.

Does the By-law promote compatibility issues that result in unacceptable adverse impacts to neighbouring properties?

208Ms. Tapp reiterated that policy 12.4.1 of the COP permits, in addition to residential uses, other uses such as general stores provided the use is compatible with the current surrounding uses and does not detract from the character of the Hamlet. The proposed development does not detract from the character of the Hamlet and is a compatible use with the surrounding areas.

209The COP stipulates that development within a Hamlet shall complement and enhance the historic character of the Hamlet and shall consider opportunities and innovations to provide a more compact settlement form.

210The Staff Report outlines the details of the site-specific Hamlet Commercial Zone proposed for the site. There were several changes to the typical standards proposed as part of this By-law. The specific regulations outlined in the Staff Report were included to ensure conformity with the policies of the COP.

211Ms. Tapp opined the By-law does not promote compatibility issues that result in unacceptable adverse impacts to the neighbouring properties.

Are the proposed commercial uses compatible with adjacent low-density residential uses?

212Ms. Tapp opined the commercial use is compatible with adjacent low-density residential uses.

Does the By-law represent good planning?

213Ms. Tapp provided that the Staff Report details that the development application conforms with all applicable Provincial and Regional Policy. The PPS 2020, Growth Plan, Greenbelt Plan, ROP and COP all include policies that direct growth to settlement areas and allow commercial uses needed by the current and future population within the Settlement Areas.

214The Region of Durham, and specifically the Municipality of Clarington is one of the fastest growing areas within the Greater Toronto and Hamilton Area (GTHA). Schedule 3 of the Growth Plan expects the Region of Durham to have an annual population growth rate of 1.9% and an annual employment growth rate of 2.1% from 2016 to 2051.

215Ms. Tapp stated that the Region of Durham is undergoing its Municipal Comprehensive Review of the Regional Official Plan (Envision Durham). The Housing Intensification Study Technical Report, released on September 3, 2021, states that:

Clarington has the potential to grow substantially, but a large portion of this growth cannot be considered as intensification. This is due to the high ratio of DGA land within the Courtice MTSA and along Courtice Road, north of Bloor Street. Nonetheless, Clarington has a total potential supply of more than 19,700 units through intensification, as seen in Figure 7-10, 11% of regional potential intensification supply by 2051. The total potential housing units that could be accommodated in Clarington’s candidate SGAs is over 35,400 units.

216Ms. Tapp further stated in addition to the expected growth for the Municipality of Clarington as a whole, there are currently two active subdivision applications within the Hamlet of Newtonville that would result in an additional 35 additional residential units. According to Statistics Canada, as of 2016, there were a total of 215 occupied dwellings within the Hamlet of Newtonville. An additional 35 dwelling units represents a 16% increase to the housing supply within the Hamlet.

217Ms. Tapp informed the Tribunal there are only three commercially zoned properties within the Hamlet of Newtonville, and only two of which permit a general store, commercial establishment. Considering the forecasted growth through Schedule 3 of the Growth Plan, the Region’s Envision Durham MCR process, as well as ongoing and active development applications within the Hamlet, it is considered good planning to plan for additional retail based services to serve the existing and growing community.

218Ms. Tapp further added that detailed in the Staff Report, Clarington Planning staff recommended approval of the ZBA Application.

219Ms. Tapp opined as a professional planner, is it integral to think about the long-term impacts of development as well as the infrastructure and services required to ensure sustainable growth and that the By-law represents good planning.

220Ms. Tapp concluded with her opinion that the proposed amendment to the Clarington Zoning By-law represents good planning, is in the provincial interest, is consistent with the PPS 2020, conforms with provincial plans, and conforms with the COP and the ROP.

APPLICANT’S EVIDENCE

PLANNING CONTEXT

221Mr. Fry testified that his firm, D.G. Biddle & Associates, was retained to provide land use planning advice with respect to the ZBA application for the Property at 4504 Durham Regional Highway 2.

POLICY ANALYSIS

Provincial Policy Statement 2020

222Mr. Fry provided that the Provincial Policy Statement 2020 defines “intensification” as:

The development of a property, site or area at a higher density than currently exists through;

a) redevelopment, including the reuse of brownfield sites;

b) the development of vacant and/or underutilized lots within previously developed areas;

c) infill development; and

d) the expansion or conversion of existing buildings.

223Mr. Fry stated the proposed additional use would be considered “intensification” as part of the existing building being expanded and converted into a retail establishment.

224Policy 1.1.1 of the Provincial Policy Statement general directional policy 1.1.1 states:

Healthy, livable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

c) avoiding development and land use patterns which may cause environmental or public health and safety concerns;

225Policies 1.1.3.2 and 1.1.3.4 of the Provincial Policy Statement speak to intensification:

1. PPS Policy 1.1.3.2 states:

Land use patterns within settlement areas shall be based on densities and a mix of land uses which:

a) efficiently use land and resources;

b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion;

c) minimize negative impacts to air quality and climate change, and promote energy efficiency;

d) prepare for the impacts of a changing climate;

e) support active transportation;

g) are freight-supportive.

Land use patterns within settlement areas shall also be based on a range of uses and opportunities for intensification and redevelopment in accordance with the criteria in policy 1.1.3.3, where this can be accommodated.

2. Policy 1.1.3.2 states that redevelopment shall be in accordance with Policy 1.1.3.3.

3. PPS Policy 1.1.3.3 states:

Planning authorities shall identify appropriate locations and promote opportunities for intensification and redevelopment where this can be accommodated taking into account existing building stock or areas, including brownfield sites, and the availability of suitable existing or planned infrastructure and public service facilities required to accommodate projected needs.

4. The Municipality of Clarington Official Plan Policy 12.4.2 promotes development within the Hamlets subject to general development policy requirements that address compatibility and intensification.

5. PPS Policy 1.1.3.4 states:

Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.

6. The subject applications are consistent with Policies 1.1.3.2(a) and (b) and 1.1.3.4 of the Provincial Policy Statement with regard to intensification.

7. The existing building stock includes one and two storey detached and semidetached dwellings.

8. The proposed ZBA is requested for the purpose of commercial uses in addition to the existing residential dwelling use.

9. The existing neighbourhood is serviced with municipal water.

226Mr. Fry opined that the proposed redevelopment is in accordance with Policies 1.1.3.2(b), 1.1.3.4 and 1.1.3.3 of the PPS.

227Mr. Fry informed the Tribunal that Policies 1.1.1(a) and (e), 1.1.3.2(a), (b), (c), (e, of the Provincial Policy Statement speak to the efficient use of land and cost-effective development patterns by relying on existing public infrastructure.

PPS Policy 1.1.1 states:

Healthy, livable and safe communities are sustained by:

a) promoting efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term;

e) promoting cost-effective development patterns and standards to minimize land consumption and servicing costs.

PPS Policy 1.1.3.2 states:

Land use patterns within settlement areas shall be based on densities and a mix of land uses which:

a) efficiently use land and resources;

b) are appropriate for, and efficiently use, the infrastructure and public service facilities which are planned or available, and avoid the need for their unjustified and/or uneconomical expansion;

c) minimize negative impacts to air quality and climate change, and promote energy efficiency;

e) support active transportation;

Land use patterns within settlement areas shall also be based on a range of uses and opportunities for intensification and redevelopment in accordance with the criteria in policy 1.1.3.3, where this can be accommodated.

228PPS Policy 1.6.1 states:

Infrastructure and public service facilities shall be provided in an efficient manner that prepares for the impacts of a changing climate while accommodating projected needs. Planning for infrastructure and public service facilities shall be coordinated and integrated with land use planning and growth management so that they are:

a) financially viable over their life cycle, which may be demonstrated through asset management planning; and

b) available to meet current and projected needs.

PPS Policy 1.6.6.4 states:

Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not available, planned or feasible, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts. In settlement areas, individual on-site sewage services and individual on-site water services may be used for infilling and minor rounding out of existing development.

229Mr. Fry testified that these policies refer to developments relying on municipal services and other infrastructure. The existing neighbourhood is serviced with municipal water though not serviced with municipal sanitary sewers.

230Mr. Fry opined that the subject applications are consistent with Policies, 1.1.3.2(a)(1) and (2), 1.6.1 and 1.6.6.4 of the Provincial Policy Statement with regard to promoting the efficient use of land and cost effective development patterns by relying on existing public infrastructure.

231Mr. Fry provided that the proposed ZBA takes advantage of Policy 1.1.4.1 of the Provincial Policy Statement which discusses the viability and the importance of rural communities.

PPS Policy 1.1.4.1 states:

Healthy, integrated and viable rural areas should be supported by:

a) building upon rural character, and leveraging rural amenities and assets;

d) encouraging the conservation and redevelopment of existing rural housing stock on rural lands;

e) using rural infrastructure and public service facilities efficiently

f) promoting diversification of the economic base and employment opportunities through goods and services, including value-added products and the sustainable management or use of resources.

232The addition of the proposed convenience store will assist in diversifying the economic base of the community and protect the local rural character.

233Mr. Fry opined that the subject applications are consistent with Policy 1.1.4.1(a), (d), (e) and (f) of the Provincial Policy Statement.

234Mr. Fry testified that the ZBA meets the Provincial Policy Statement 2020 definition of intensification. The location of the proposed commercial use meets the criteria of the COP as an appropriate location for intensification.

235Intensification is supported by the Provincial Policy Statement 2020 where municipal services and other public infrastructure are available wherever feasible. Municipal water, roads and septic as well as other public infrastructure are available at the location of the subject property.

236Mr. Fry opined that the ZBA conforms to the Provincial Policy Statement 2020.

Growth Plan for the Greater Golden Horseshoe (“Growth Plan”/“GP”)

237The Growth Plan defines “intensification” as “the development of a property, site or area at a higher density than currently exists through:

a) redevelopment, including the reuse of brownfield sites;

b) the development of vacant and/or underutilized lots within previously developed areas;

c) infill development;

d) the expansion or conversion of existing buildings.

238Mr. Fry stated that the proposed ZBA to convert part of the building into a convenience store meets the definition of intensification as it is an expansion and conversion of the existing dwelling and opined the existing lot can accommodate the proposed convenience store.

239Policies 2.2.1.3 (b) and (c) and 2.2.1.4 (a), (b), (d) and (e) of the Growth Plan speak to use intensification.

GP Policy 2.2.1.3(b) and (c) states:

Upper and single-tier municipalities will undertake integrated planning to manage forecasted growth to the horizon of this Plan, which will:

b) be supported by planning for infrastructure and public service facilities by considering the full life cycle costs of these assets and developing options to pay for these costs over the long-term;

c) provide direction for an urban form that will optimize infrastructure, particularly along transit and transportation corridors, to support the achievement of complete communities through a more compact built form.

GP Policy 2.2.1.4 states:

4. Applying the policies of this Plan will support the achievement of complete communities that:

a) feature a diverse mix of land uses, including residential and employment uses, and convenient access to local stores, services, and public service facilities;

b) improve social equity and overall quality of life, including human health, for people of all ages, abilities, and incomes;

d) expand convenient access to:

i. a range of transportation options, including options for the safe, comfortable and convenient use of active transportation;

ii. public service facilities, co-located and integrated in community hubs;

iii. an appropriate supply of safe, publicly-accessible open spaces, parks, trails, and other recreational facilities; and

iv. healthy, local, and affordable food options, including through urban agriculture;

e) provide for a more compact built form and a vibrant public realm, including public open spaces.

240Mr. Fry provided that the proposed ZBA meets the definition of intensification as the subject property supports the achievement of complete communities.

241The COP Policy 12.4.2 promotes development within the Hamlets subject to general development policy requirements that address compatibility and intensification.

242Mr. Fry opined that the subject applications are consistent with Policies 2.2.1.3(b) and (c) and 2.2.1.4 (a), (b), (d) and (e) of the Growth Plan with regard to intensification.

243Policies 2.2.9.1 and 2.2.9.3(c) of the Growth Plan for the Greater Golden Horseshoe speak to development within rural settlement areas.

GP Policy 2.2.9.1 states:

1. Municipalities are encouraged to plan for a variety of cultural and economic opportunities within rural settlements to serve the needs of rural residents and area businesses.

GP Policy 2.2.9.3 states:

3. Subject to the policies in Section 4, development outside of settlement areas may be permitted on rural lands for:

c) other rural land uses that are not appropriate in settlement areas provided they:

i. are compatible with the rural landscape and surrounding local land uses;

ii. will be sustained by rural service levels; and

iii. will not adversely affect the protection of agricultural uses and other resource-based uses such as mineral aggregate operations.

244Mr. Fry provided that the proposed additional use meets the definition of intensification as the subject property is located in a rural area, as described in Section 12.4 of the Clarington Official Plan.

245Mr. Fry opined that the proposed severance is consistent with Policies 2.2.9.1 and 2.2.9.3 (c) of the Growth Plan as the proposed ZBA is considered intensification and is compatible with the rural landscape.

246Mr. Fry stated the proposed ZBA meets the Growth Plan definition of intensification as supported by the Growth Plan generally through expansion and conversion of the existing building. The location of the proposed ZBA meets the criteria of the COP as an appropriate location for intensification.

247Mr. Fry opined that the proposed ZBA conforms to the policies of the Growth Plan for the Greater Golden Horseshoe.

Region of Durham Official Plan 2020 (ROP)

248Mr. Fry provided that the subject property is designated “Hamlet” in the ROP.

249The Hamlet land use designation allows for low-density residential uses, convenience store retail and other small scale commercial uses that serve the needs of the immediate community.

250The ROP defines Intensification as:

the development of a property, site or area at a higher density than currently exists through:

d) the expansion or conversion of existing buildings.

251The proposed ZBA to convert part of the building into a convenience store meets the definition of intensification as it is an expansion and conversion of the existing dwelling.

252Policies 4.3.2(d) and 9B.1.2 of the ROP speak to intensification:

ROP Policy 4.3.2 – Housing states:

Regional Council shall support opportunities to increase the supply of housing in Urban Areas through intensification, taking into account the adequacy of municipal services and the physical potential of the housing stock. Housing intensification shall include, but not be limited to, the following:

d) the creation of residential units above commercial uses, with preference being given to development located adjacent to arterial roads and/or in close proximity to transit routes.

253Mr. Fry provided that the proposed ZBA meets the definition of Intensification as the integration of the commercial and residential uses into the same building serves to satisfy the intent of the ROP policy regarding integrating housing into mixed use development.

ROP Policy 9B.1.2– Rural Settlements, General Policies states:

Development in Rural Settlements shall occur with careful consideration to the natural, built and cultural environments.

254Mr. Fry stated the proposed commercial use, and the existing building and proposed building addition, represent low-rise development that has no adverse impact on adjacent commercial and residential uses. The proposed commercial use is intended to serve the immediate needs of the Hamlet residents.

255Mr. Fry offered the opinion that the proposed severance and minor variances are consistent with Policies 4.3.2(d) and 9B.1.2, of the ROP with regard to intensification.

256Policies 4.3.2(d), 9B.2.6 and 14.5.4 (a) and (c) of the ROP speak to promoting the efficient use of land and cost-effective development patterns by relying on existing public infrastructure.

ROP Policy 4.3.2 – Housing states:

Regional Council shall support opportunities to increase the supply of housing in Urban Areas through intensification, taking into account the adequacy of municipal services and the physical potential of the housing stock. Housing intensification shall include, but not be limited to, the following:

d) the creation of residential units above commercial uses, with preference being given to development located adjacent to arterial roads and/or in close proximity to transit routes.

257Mr. Fry stated the proposed ZBA represents intensification of the subject property as it relies on existing municipal water service and on existing municipal roads.

ROP Policy 9B.2.6 – Hamlets states:

Development within Hamlets shall be individually serviced with private drilled wells and private sewage disposal systems where groundwater quantity and quality permits, and in compliance with the standards of the Region and the Ministry of the Environment, Conservation and Parks. Municipal services may be extended to a Hamlet, without an amendment to this Plan or the area municipal official plan, in accordance with Policy 5.3.22, and provided a study, as outlined in Policy 9B.2.8, has been undertaken. In addition, notwithstanding any other provisions of this Plan, where municipal services are to be extended, the capacity of such service shall be designed to service only the Hamlet area delineated in the area municipal official plan.

258Mr. Fry provided that the subject property relies on existing municipal water service and on existing municipal roads.

ROP Policy 14.5.4 – Implementation, Zoning By-laws states:

Notwithstanding Policy 14.5.1, this Plan is not intended necessarily to prevent the continuation, expansion, or enlargement of uses which do not conform to the designations and provisions of this Plan. At their sole discretion, the Councils of the area municipalities may zone to permit the continuation, expansion or enlargement of legally existing uses, or the variations to similar uses, provided that such uses:

a) have no adverse effect on the present uses of the surrounding lands or the implementation of the provisions of this Plan;

c) are accessible by a public road which is maintained by the appropriate authority as open to traffic on a year-round basis and is of a standard of construction adequate to provide for the additional traffic generated by the proposed use;

259Mr. Fry reiterated that the subject property has access on a Regional Road and relies on existing municipal water service and on existing municipal roads.

260Mr. Fry provided the opinion that the subject applications conform to Policies 4.3.2(d), 9B.2.6, 14.5.4 (a) and (c) of the ROP with regard to promoting the efficient use of land and cost-effective development patterns by relying on existing public infrastructure.

261The Tribunal heard that Policies 14.5.3 of the ROP speaks to Holding (H) provisions of zoning By-laws.

ROP Policy 14.5.3 – Implementation, Zoning By-laws states:

a) the development is consistent with the orderly and phased development of the municipality;

b) the owner has satisfied all of the requirements of the area municipality and entered into any necessary agreements in this regard; and

c) the owner has satisfied all the requirements of the Regional Municipality of Durham with respect to the provision of sewer and water services, Regional roads, and entered into any necessary agreements in this regard.

262The hold (H) provisions appended to the amending zoning By-law identifies that a study or report on the traffic and access on and to the Regional Road be submitted as part of a site plan control application.

263The Region OP contemplates that an H provision may be contingent on satisfactory arrangements with respect to regional roads. The proposed development has access on a Regional Road.

264Mr. Fry opined that the proposed H provision of the amending zoning By-law conforms to Policy 14.5.3 of the ROP.

265The proposed development meets the ROP definition of intensification. The location of the proposed ZBA meets the criteria of the COP as an appropriate location for intensification.

266Intensification is supported by the ROP where municipal services and other public infrastructure are available, wherever feasible.

267Mr. Fry opined that the ZBA conforms to the policies of the ROP.

Municipality of Clarington Official Plan (2018) (COP)

268Mr. Fry provided that the subject property is designated “Hamlet” in the COP.

269The Hamlet land use designation allows for low-density residential uses, convenience store retail and other small scale commercial uses that serve the needs of the immediate community.

270The objective 12.4.1 of the COP reads:

The predominant use of lands within the Hamlet designation shall be detached residential dwellings. Other uses such as schools, community facilities, places of worship, general stores, home-based occupations, arts and craft shops, service stations and farm-related commercial uses are also permitted provided such uses are compatible with the surrounding uses and do not detract from the character of the Hamlet.

271Mr. Fry opined that the proposed ZBA addresses Objective 12.4.1 of the Clarington Official Plan as:

A) The proposed convenience retail use is contemplated by the Clarington OP as an appropriate and desirable use within a Hamlet,

B) a convenience retail use located within a residential dwelling building is a compatible land use with adjacent residential detached dwellings, and

C) the convenience retail use is located within a building of similar size, height, massing, built form and building setbacks as those existing buildings in immediate proximity and therefore does not detract from the character of the Hamlet.

272The Tribunal heard that the Clarington Official Plan defines Intensification as;

The development of a property, site or area at a higher density than currently exists through:

e) The expansion or conversion of existing buildings.

273The proposed ZBA to allow a convenience store would be considered “intensification” as the existing property is located within a previously developed area, while the use of the building is being intensified by expanding the current dwelling to allow for the general store.

Policies 5.2.3, 12.3.3 and 9.4.5 of the COP speak to intensification.

COP Policy 5.2.3 states:

To create attractive safe communities with a sense of place and a diversity of built form that supports future intensification and redevelopment.

274The Tribunal heard the proposed additional use meets the definition of intensification.

COP Policy 9.4.6 states:

Recognizing that established neighbourhoods are stable but not static, the Municipality encourages limited intensification in accordance with the criteria in Section 5.4.1.to ensure intensification projects are compatible with the adjacent neighbourhood.

275The Tribunal heard that intensification is supported within all density types, including the Hamlet land use designation of the subject property.

COP Policy 12.3.3 states:

Development shall be serviced by private drilled wells and private sewage disposal systems or municipal or communal water or sewage disposal systems approved and in compliance with Provincial and Regional standards. Where a municipal or communal system exists, new development shall be required to connect to these systems subject to such matters as capacity, feasibility, the sequential extension of services, and financing.

276The Tribunal heard the existing lot and building are serviced by municipal water and transportation services.

277Mr. Fry opined that the subject applications are consistent with Policies 5.2.3, 9.4.6 and 12.3.3, of the COP with regard to intensification.

278Policies 5.4.1 (d), 12.3.3 and 23.7.1(c), (d) and (e) of the COP speak to promoting the efficient use of land and non-renewable resources and cost-effective development patterns by relying on existing public infrastructure.

COP Policy 5.4.1 states:

New development and redevelopment in established neighbourhoods will be designed to:

d) Maximize opportunities to improve accessibility and pedestrian and cycling systems, enhance neighbourhood and transit connections, and reduce energy, water and resource use.

279The Tribunal heard the proposed development meets and addresses the Province’s requirements for barrier free access. By maintaining the existing dwelling in place, the owner is reducing the energy and resource use that would otherwise be used to demolish the existing building and replacement with a new building.

COP Policy 12.3.3 states:

Development shall be serviced by private drilled wells and private sewage disposal systems or municipal or communal water or sewage disposal systems approved and in compliance with Provincial and Regional standards. Where a municipal or communal system exists, new development shall be required to connect to these systems subject to such matters as capacity, feasibility, the sequential extension of services, and financing.

280The Tribunal heard the proposed new lot has private services available including well and septic and is accessible to community facilities, including parks, a community centre, places of worship, shopping and major roads.

281The Tribunal further heard Durham Region Works has not provided comments expressing concerns regarding the additional traffic. The traffic generated by the proposed convenience store can be accommodated on the existing road network and parking will be provided on site in accordance with the requirements of the Zoning By-law.

COP Policy 23.4.3 states:

Holding provisions may be used to ensure, that prior to development or redevelopment, the following matters have been addressed and approved to the satisfaction of the Municipality:

a) Services and municipal works including roads;

b) Measures to protect natural areas;

c) Measures to mitigate the impact of development

f) Execution of appropriate agreements; and/or

g) Any other requirements as may be deemed necessary by the Municipality including the implementation of the policies of this Plan

282The Tribunal heard the proposed ZBA meets the requirements of the Provincial Policy Statement, the Growth Plan and the Durham Official Plan.

283The proposed retail use has public and private services available including water and septic and the proposed general store fronts onto an open municipal road.

284The Tribunal further heard upon approval of the development, the owner shall undergo an execution of appropriate agreements.

285Mr. Fry opined that the subject application is consistent with Policies 5.4.1(d), 12.3.3 and 23.4.3 a, b, (c), (f) and (g) of the COP with regard to promoting the efficient use of land and non-renewable resources and cost-effective development patterns by relying on existing public infrastructure.

286Policy 12.4.2 of the COP speaks to development and redevelopment in Hamlets.

COP Policy 12.4.2 – Hamlets states:

Development within a Hamlet shall:

a) Complement and enhance the historic character of the Hamlet;

b) Provide housing designed to complement the architecture of existing buildings

d) Consider opportunities and innovations to provide a more compact settlement form.

287The Tribunal heard the proposed convenience retail use is contemplated by the Clarington OP as an appropriate and desirable use within a Hamlet as the existing detached dwelling building is a compatible land use with adjacent residential detached dwellings.

288The Tribunal further heard, the convenience retail use is located within a building of similar size, height, massing, built form and building setbacks as those existing buildings in immediate proximity and therefore does not detract from the character of the Hamlet.

289Mr. Fry opined the proposed store is considered compact settlement form because it is an intensification of uses with retail and accessory residential.

290Mr. Fry provided that the 1000m² lot area of the subject property is consistent with the more compact lot area trend in the surrounding neighbourhood such as the 590m² lot at 4506 Highway 2 and the 536m² at 2017 Newtonville Road. The proposed rezoning conforms with Policy 5.4.1 of the COP with regard to development and redevelopment in existing neighbourhoods.

291Mr. Fry opined that the subject application is consistent with Policy 12.4.2 of the Clarington Official Plan with regard to development and redevelopment in Hamlets.

292Policy 12.4.5 of the COP speaks to Hamlet development policies in Newtonville.

COP Policy 12.4.5 states:

In the Hamlet of Newtonville, the following policies apply:

a) All development shall be serviced by municipal water supply;

b) The minimum lot size may be reduced provided an engineering study demonstrates to the satisfaction of the approval authorities that the soil and groundwater conditions can support reduced lot sizes without contaminating soil or groundwater;

c) No further development shall be permitted upon reaching the capacity of the municipal water supply system, regardless of whether designated lands remain vacant

293The Tribunal heard the subject property is serviced by municipal water and the private sanitary service will be designed to meet the requirements of the Ontario Building Code in order to obtain a building permit. Further, municipal water service is available to accommodate the proposed new use.

294Mr. Fry opined that the subject application is consistent with Policy 12.4.5 of the Clarington Official Plan with regard to development and redevelopment within the Hamlet of Newtonville.

295The Tribunal heard the proposed development meets the Clarington Official Plan definition of intensification through the expansion and conversion of existing buildings. Further, the location of the proposed development meets the criteria of the COP as an appropriate location for intensification.

296Mr. Fry opined that the proposed use as a convenience retail is physically compatible with adjacent residential dwelling uses and conforms to the policies of the COP.

SUMMARY

297Mr. Fry provided for the Tribunal the following summary opinion:

• The proposed ZBA of reductions in lot area and font/interior side yard setbacks are compatible with other development in the neighbourhood

• Traffic is not a major factor because convenience store traffic does not generate the same amounts of traffic as other retail uses

• The two convenience stores can operate adjacent to one other because two buildings on the same land use can operate side by side

• The proposed convenience store conforms to adjacent uses in the surrounding area

• The proposed severance is consistent with the Provincial Policy Statement 2020 and the Growth Plan for the Greater Golden Horseshoe 2019 (2020 Consolidation)

• The proposed severance represents intensification as per the definition of Intensification in the PPS and GPGGH

• Intensification within the Built Boundary is supported by the PPS and the GPGGH

• Intensification and conversion of existing buildings are supported by the Region of Durham’s and the Municipality of Clarington’s Official Plans

• Intensification without the need to extend or create new public infrastructure is supported by the Region of Durham and the COPs

• Municipal services including roads, parks, community centre, and other public infrastructure are available for the proposed retail establishment

• The use of existing municipal services to accommodate growth is supported by the PPS

• The proposed ZBA to permit the use as convenience retail and accessory dwelling, is compatible with the adjacent residential land uses

• The proposed ZBA is appropriate within the context of the existing surrounding uses and is considerate to the surrounding uses with regard to use, lot frontage, and lot area

298Mr. Fry’s concluding opinion reiterated that the proposed development is consistent with the Provincial Policy initiatives and current Regional and Municipal planning policy and represents good planning.

TRANSPORTATION CONTEXT

299Mr. Lower testified that his firm, Trans Plan, was retained to provide transportation engineering services opinions with respect to the ZBA application for the Property at 4504 Durham Regional Highway 2.

Site Context & Proposed Addition

300Mr. Lower provided that based on the site plan provided by D.G. Biddle & Associates Limited , the proposed development consists of reconfiguring the two front rooms of the detached dwelling unit and adding a total GFA of 57.8 m2 for the proposed general store. A total of 4 parking spaces is provided for the subject site; 2 spaces are allocated for the residential dwelling portion of the 4504 Durham Regional Highway 2 unit and the remaining 2 spaces for commercial use by the proposed general store.

ITE Trip Generation

301Mr. Lower stated that the traffic volumes generated and attracted by the 4504 Durham Regional Highway 2 property were calculated using the Institute of Transportation Engineers (ITE) Trip Generation Manuals, 11th Edition. The trips were calculated for both the residential use and for the commercial use. The calculations for the residential use were performed utilizing ITE’s Land Use Code (LUC) 210 for Single-Family Detached Housing. The calculations for the commercial use were performed utilizing ITE’s Land Use Code (LUC) 851 for Convenience Store.

302The proposed development is expected to generate 40, 31, and 60 two-way trips in the weekday AM, weekday PM and Saturday peak hours, respectively.

303Mr. Lower further stated, the calculations serve the purpose of documenting the traffic volumes associated with the 4504 Durham Regional Highway 2 property. However, it should be clear for traffic practitioners that these volumes are not additional to the nearby road network volumes identified in Attachment 2 (dated Sep/2022), as those already account for both the residential and commercial traffic of the property, given that both the residence and the commercial operation were in place in Sep/2022. In fact, the traffic volumes driven by the proposed development could not impact the capacity of the stop-controlled intersection of Highway 2 at Newtonville Road in any significant way, a fact that was consolidated in the Region’s summary dismissal of the traffic analysis requirement.

304Mr. Lower provided that the commercial trip generation calculations were performed for the land use reported by Mr. Kerswell. the commercial LUC code considered for this calculation corresponds to the ITE Land Use Code (LUC) 851 for Convenience Store, where all sales are “grab and go”. The commercial property at 4504 Durham Regional Highway 2 provides no customer sitting space and thus there is no longer-term utilization of the premises by customers for activities such as eating, drinking or consuming any of the products sold at the 4504 Durham Regional Highway 2 address.

Turning Movement Counts Review

305The Turning Movement Counts (TMC) for the intersection of Highway 2 and Newtonville Road were reviewed to better understand the existing roadway conditions in the vicinity of the subject site.

306Mr. Lower testified that both the peak hour volumes and the overall 8 hour volumes are noticeably low. The volumes along Highway 2 are significantly higher than those on the side-street (Newtonville Road), which befits the intersection control configuration of stop-control for the side-street only.

307These overall low traffic volumes moving through the intersection, once combined with the extremely low volume of traffic generated/attracted by the proposed development using the Institute of Transportation Engineers (ITE) Trip Generation Manuals, 11th Edition, ITE Land Use Code (LUC) 851 for Convenience Store is consistent with the Region’s decision to dismiss the requirement of a traffic study for approval of the Site Plan application. The traffic volumes driven by the proposed development could not impact the capacity of the stop-controlled intersection of Highway 2 at Newtonville Road in any significant way, a fact that was consolidated in the Region’s summary dismissal of the traffic analysis requirement.

Collision History Review

308Mr. Lower reviewed the Durham Region official collision records for the intersection of Highway 2 at Newtonville Road covering the last 5-year period.

309Mr. Lower stated that only 3 collisions were reported over the past 5 years – so it is safe to conclude that the intersection presents low accident rates. Given that the intersection features stop control for the side street only (i.e. Newtonville Road), it is possible to conclude that all 3 the collision events were characterized by one of the motorists failing to stop and yield when that was required, and/or taking a gap that proved to be too short to complete the intended maneuver in a safe manner.

310Mr. Lower further added, only one of the 3 collisions had any injuries (non-fatal), and none of the 3 events involved vehicles coming from the eastern approach to the intersection – which indicates that the segment of Highway 2 where the proposed Site Plan has a frontage was not featured in any of the accidents registered over the past 5 years.

Parking Requirements Review

311Mr. Lower provided that a parking review was conducted to confirm that the proposed parking supply of 4 spaces is sufficient to accommodate the combined demand of the existing residential unit and the proposed general store, which has a GFA of 57.8 m2.

312A review of the site parking requirements was done based on the Municipality of Clarington Zoning By-law 84-63 requirements. Clarington’s Zoning By-law 84-63 parking requirement for the proposed development is 4 spaces. Based on the municipalities’ requirements, the proposed parking supply is sufficient.

313Mr. Lower reviewed the requirements regarding the parking stall dimensions. The municipality’s minimum required size for a regular parking stall has a width of 2.75m and a length of 5.7m, and for an accessible parking space, a width of 4.5m and a length of 5.7m. Based on the Site Plan information, all of the parking stalls provided in the 4504 Durham Regional Highway 2 property comply with the municipal rules for parking stall dimensions.

314All commercial parking at the Convenience Store is short-term, which helps keep the 2 commercial parking stalls available most of the time. That is consistent with the “grab and go” customer profile of the general store, which provides no customer sitting space that could support activities such as eating and drinking by customers at the premises, driving the desired short-term commercial parking occupation.

Loading Requirement Review

315Mr. Lower provided a loading review of the proposed commercial general store addition; based on the loading space requirements for the Municipality of Clarington Zoning By-law 84-63.

316Mr. Lower indicated that the site plan provides a designated loading space to accommodate the loading/ delivery vehicles. The loading space is located by the property line at the east of the building, sharing non-simultaneous use with the accessible barrier-free parking space. The proposed loading space dimensions are 10.0 m (length) by 4.5 m (width). Loading operations are expected to occur outside of the commercial store operating hours where there is typically minimal traffic activity at the site. In the event that the loading/ delivery vehicle arrives when the accessible space is occupied, the loading/ delivery vehicle is still able to park on the boulevard in front of the subject site without obstructing the driveway access of the neighbouring property at 4502 Durham Regional Highway 2.

Swept Path Analysis

317A site circulation review was completed using templates from the AutoTURN vehicle turning software to assess the vehicle operations of the subject site and to confirm that the vehicle operations of the neighbouring property at 4502 Durham Regional Highway 2 will not be affected.

318Mr. Lower provided that the results of the swept path analysis indicate that the vehicle operations of the proposed general store at the 4504 Durham Regional Highway 2 property can properly circulate the site and will not affect the operations of the neighbouring property at 4502 Durham Regional Highway 2.

Pedestrian Access & Circulation

319Mr. Lower stated that the pedestrian access & circulation pathway leading from the boulevard to the back of the 4504 Durham Regional Highway 2 property could rely on usage of the same access corridors utilized by the residential use passenger vehicles that utilize the parking spaces at the rear of the property. Any concerns with the sharing of such corridor space between pedestrians and vehicles must be weighed against the fact that neither of the two corridors (one on either side of the building, bordering the west and east limits of the property line) is a public space. The only people utilizing the corridors – either to drive or to walk – will be residents of the property. No customers are allowed in those areas. Any pedestrians or drivers accessing and circulating through these corridors would be household residents; not general store customers.

SUMMARY

320Mr. Lower opined the proposed general store conversion of a portion of the residential dwelling unit, located at 4504 Durham Regional Highway 2, is expected to operate without obstructing the operations of the general store located at 4502 Durham Regional Highway 2.

321Mr. Lower’s review of the traffic data of the intersection of Durham Regional Highway 2 and Newtonville Road concludes that the intersection experiences low traffic volumes. The proposed redevelopment of a portion of the 4504 Durham Regional Highway 2 property as a general store as illustrated in the attached site plan is not expected to impact the capacity of this stop-controlled intersection.

322The collision history review indicates that the intersection of Durham Regional Highway 2 and Newtonville Road presents low accident rates as only 3 collisions have occurred in the past 5 years. The collisions were not caused by vehicles coming from the eastern approach, where the proposed site plan has frontage.

323Further, the review of the parking and loading spaces proposed on the subject site indicates the supply is sufficient and compliant with the Municipality’s By-law. The property owner is complying with the legally enforceable parking rate requirements.

324The swept path analysis indicates that the vehicle operations of the subject site would not obstruct the vehicle operations of the neighbouring property located at 4502 Durham Regional Highway 2. The residential use passenger vehicles parking at the rear of the property are able to exit the site by utilizing the rear yard space to turn around and exit through the commercial parking space at the western end of the property, or alternatively by utilizing the rear yard to exit through the accessible space at the eastern end of the property.

ANAYLYSIS & FINDINGS

325The Tribunal has carefully considered the issues raised by the Appellant and the whole of the planning and transportation evidence, as well as that provided by the Applicants and supported by the Municipality’s planning recommendations.

326The Tribunal recognizes through Mr. Uukkivi’s cross examination of Ms. Tapp, oversights emerged in her testimony specifically those that pertain to requirements of the Official Plan and Parking spaces.

327The Tribunal further documented Mr. Uukkivi’s cross examination of Mr. Fry challenging the credibility of his testimony that did not relate to his specialty. The Tribunal ruled that his testimony would continue only within the scope of Transportation Engineering.

Appellant’s Submissions

328Mr. Uukkivi provided the distinguishing argument regarding Policy 12.4.1 of the Official Plan which states:

12.4.1 The predominant use of lands within the Hamlet designation shall be detached residential dwellings. Other uses such as schools, community facilities, places of worship, general stores, home-based occupations, arts and craft shops, service stations and farm-related commercial uses are also permitted provided such uses are compatible with the surrounding uses and do not detract from the character of the Hamlet. Service stations shall also be subject to the policies of Section 10.10 of this Plan.

329The Tribunal heard that the policy requires a compatibility analysis that does not detract from the character of the surrounding Hamlet.

330Mr. Uukkivi attested that Ms. Tapp admitted that the analysis was not carried out, preferring instead to leave it to the Site Plan stage. Mr. Uukkivi provided that in the absence of the analysis, the ZBA cannot be shown to conform to the Official Plan and thus cannot be approved.

331Mr. Uukkivi further provided that Ms. Tapp agreed with Mr. Linton's interpretation of a parking space, and specifically that it cannot include any aisles, or ingress and egress lanes.

332Mr. Uukkivi’s submissions included that a number of legal matters needed to be considered including:

• General applicable law, including the test for rezoning and the law applicable to the exercise of holding provisions;

• Planning instruments and provisions - a focus on the evidence you've already heard and the proper interpretation of the planning instruments; and

• A landowner's application for a zoning amendment is premature if the applicant fails to provide sufficient information to allow Council or the Tribunal to consider the policies of the official plan and legitimate planning concerns

333Mr. Uukkivi provided:

Re Goderich (Town) Official Plan Amendment 11 (1987),20 O.M.B.R. 464 (OMB)

The board cannot find that By-law 99 of 1986 is in accord with proper principles of community planning or is in conformity with these policies in the official plan. It appears that, because of the unwillingness of the proponent to provide some defined outline of his proposal for this lot, the town was not in a position to consider what the plan directs it to consider, not just later at the site plan stage, but to the extent appropriate in dealing with the zoning under s. 34. The board concludes that this zoning By-law is premature, given the insufficient information from the proponent. The board rejects the opinion of the proponent's planner that all of the concerns should be left to be addressed under s. 40.

334The Applicant’s plan does not provide sufficient details to allow this Tribunal to comfortably assess the community impacts. It will be noted that the Goderich decision did not have the imposition of an H provision.

2206211 Ontario Inc. v. Pickering (City)

335Mr. Uukkivi submitted that a holding By-law is not an unbridled right to avoid proper planning.

In 2206211 Ontario Inc. v. Pickering (City), the Ontario Municipal Board stated at paragraph 45 that:

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.

336Mr. Uukkivi provided that Clarington and the Applicant have failed to show there is a need for the H provisions, and that the policies they rely on support the need for H provisions. More importantly, they have not drafted an approach that is sufficiently complete so as to represent appropriate zoning controls for the lands when the H symbol is removed as they do not “shrinkwrap” the site. Rather, they have broad permitted uses that can change in the future on mere applications for site plan control.

337They also need to show, before allowing the By-law, that proper principles of community have been resolved, community impacts have been addressed, and conflicts have been remedied. They have admitted in their cross-examination that they intend to do this as part of the site plan application. In other words, they have admitted that it is not appropriate to use an H provision yet.

Municipality’s Submissions

338The Municipality provided two modifications to the ZBA:

1. reduce the minimum lot area from 3,000 m2 to 1,000 m2;

2. to only permit the convenience store use, thus eliminating the possibility of an eating establishment that was the cause of much of the appellant’s concerns.

339The Municipality provided two legal precedents to justify their submissions.

Toronto (City) Official Plan Amendment 333 (Re), [1986] O.M.B.D. No. 3

This is a case that guides on the test for determining the appropriateness of the use of a holding provision in a zoning By-law. It is a four-part test, found at paragraph 113 of the decision which reads as follows:

1. The need for the holding policies and provisions should be demonstrated;

The need for the holding policies and provisions should be viewed from the perspective of an appellant who is challenging the imposition of the holding symbol as a pre-requisite to development.

Within this Appeal, there should be no issue as to the need for the holding strategy. In order to address in detail, the traffic and loading aspects and other technical issues of the design of the site, a holding symbol is fundamental to the proper planning of the subject property.

2. Policies relating to the use of the holding symbol must be contained in the Official Plan;

340Ms. Tapp has demonstrated the policy framework that existed in the Regional and Clarington Official Plans to enable the use of an H provision for the present purpose.

3. The By-law on which the H symbol is to be employed should be sufficiently complete so as to represent appropriate zoning controls for the lands when the H symbol is removed; and

341Ms. Tapp and Mr. Fry have confirmed that in their opinion the ZBA is sufficiently complete so as to represent appropriate zoning controls for the lands if and when the conditions are fulfilled to lift the H provision.

4. 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 [the holding symbol and site plan approval provisions of the Planning Act] and other applicable legislation, if any.

342Ms. Tapp demonstrated that the ZBA is consistent with proper principles of community planning, and 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 at the site plan approval stage.

343Mr. Maciver emphasized the appropriateness of the H provision, by citing some of the circumstances in which zoning policies and provision were approved in the Toronto case. The area in question was the so-called Railway Lands in the area of downtown Toronto stretching from Yonge Street for a distance of over a mile to Bathurst Street and between Front Street and the Lakeshore-Gardiner corridor. This is an area of approximately 200 acres of dense urban planning. The purpose of the H provision was to ensure the controlled, incremental development of these lands over 20 years, phased with necessary improvements to the transportation system and other services. The policies required major transportation studies prior to the removal of the H symbol. These 200 acres subject to the H provision were dependent on future development of a transportation system yet to be in existence. Important infrastructure including the need for the Gardiner widening, the Front Street extension, the widening of Spadina Avenue, and significant transit improvements. Most of the road improvements and transit improvements were not specifically identified. In my submission, if the Board was satisfied that the issues involved in the Toronto case could be left to the precise details of site planning and control, then surely the same is the case for a modest 60 m2 commercial use at the subject property.

403502 Ontario Inc. v. Markham (City), [2017] O.M.B.D. No. 129

344This case presents an H scheme which was approved for a major urban area, in which there was a condition to require satisfactory completion of an Environmental Assessment for major future public transportation infrastructure. In this case, the very existence of the supporting infrastructure remained in question. Contrast this with the present case in which there is no evidence of any major transportation infrastructure deficiency, and all impacts are localized and proposed to be mitigated through site design on the subject property.

CONCLUSION

345The Tribunal comprehends the nature of the Appellant’s concerns over this application and duly appreciates the evidence and testimony provided.

346The Tribunal is persuaded by Ms. Tapp’s testimony that the Appellant’s apprehensions have been considered through a combination of the updated ZBA, the contents of the Staff Report that was endorsed by Clarington Council, and the general provisions for the lifting of an H provision contained in section 3.10 of Zoning By-law 84-63.

347The Tribunal finds that subject to an H Provision, the Appellant’s trepidations will be fully addressed at the Site Plan stage. The proposed H provision would only be lifted once the Applicant provides satisfactory evidence which addresses all concerns listed in the report, including Sections 8.10 and 10.1, as well as enters into the appropriate development agreement with the Municipality of Clarington to address the final technical details related to the proposal.

348The Tribunal, based on the evidence, and taking into account the municipal council’s decision and the information it considered or received, is satisfied that the proposed ZBA, with an expanded H provision, has regard to matters of Provincial interest, is consistent with the Provincial Policy Statement, conforms with Provincial Plans, the Clarington Official Plan, the Durham Region Official Plan and represents good land use planning.

ORDER

349THE TRIBUNAL ORDERS that the appeal is dismissed and Zoning By-law No. 84-63 of the Municipality of Clarington is amended as contained in Attachment 1. The Municipal Clerk may format and number the amendment for record-keeping purposes.

“Carmine Tucci”

CARMINE TUCCI

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1