Amber Stewart Law - Town of Caledon

1 FIRST CANADIAN PLACE
100 KING STREET WEST
SUITE 5600
TORONTO, ONTARIO
M5X 1C9
February 14, 2012
Refer to: amber@amberstewartlaw.com
T: 416.479.5452
F: 416.644.8801
AMBERSTEWARTLAW.COM
Delivered by email to agenda@caledon.ca
Ms. Karen Landry
Director of Administration/Town Clerk
Town of Caledon
6311 Old Church Road
Caledon, Ontario
L7C 1J6
Attn: Her Worship Mayor Marolyn Morrison and Members of Council
Dear Ms. Landry:
Re: Proposed Official Plan Amendment No. 204 and Proposed
Amendment to Zoning By-law No. 2006-50 respecting Drive-Through
Service Facilities
Agenda Item no. 12 (RB 6), Report No. DP-2012-005
We are counsel to Mr. Domenic Fanelli, who manages the affairs of Ms. Gregorina
Alessandro, the legal owner of the property municipally described as
18372 Hurontario Street, in the Town of Caledon (“the Town”) (“the Subject
Property”).
Mr. Fanelli received notice on Friday, February 10, 2012 that the Town Council is
considering the following proposed amendments respecting drive-through service
facilities at its meeting of February 14, 2012:
• Proposed Official Plan Amendment No. 204 (“OPA 204”); and
• Proposed amendment to the Town’s Comprehensive Zoning By-law No.
2006-50 (“ZBLA”) (together, “the Proposed Amendments”).
The purpose of this letter is to provide a submission to Council regarding my
client’s concerns with the Proposed Amendments.
The Subject Property
The Subject Property is located at the southwest corner of Hurontario Street
(Highway 10) and Charleston Side Road (Highway 24) in Caledon Village. It
currently contains a restaurant known as Eddie Shack Donuts, which has operated
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for over 20 years, since 1991. The restaurant also contains an accessory drivethrough
service facility with one drive-through window, located on the south side of
the building.
As the Town is aware, my client is currently engaged in negotiations to lease the
Subject Property to Tim Hortons.
The Town of Caledon Official Plan (“the Official Plan”) designates the Subject
Property as Commercial in Schedule E, Caledon Land Use Plan. The policies
applicable to the Commercial designation provide that a wide range of commercial
retail and service facilities is permitted, including restaurants.
The Subject Property is subject to a Village Commercial site-specific zone category
CV-272 in By-law 2006-50. The applicable zoning permits a wide range of
commercial uses. The existing Restaurant and accessory Drive-Through Service
Facility are expressly permitted uses on the Subject Property.
Insufficient Time for Review
Firstly, my client is very concerned with the extremely short notice period provided
by the Town of its intention to adopt the Proposed Amendments.
The Development Approval & Planning Policy Department Staff Report No. DP-
2012-005 (“the Staff Report”) indicates that the Town-wide study giving rise to the
Proposed Amendments was commenced in 2004, and originally presented but not
adopted in 2006. Results of public consultation were presented to Council four
years later, in 2010.
Almost two years have passed since the last public meeting was held concerning
the Proposed Amendments; the Staff Report acknowledges “the time it has taken
to complete this study and the extensive gaps between key study milestones”. It
also recommends that Council pass a resolution “out of an abundance of caution”
confirming that no further notice is required in order to pass the implementing
ZBLA.
In our view, the Town’s approach – “reviving” the drive-through study and rushing
the Proposed Amendments through Council – is inappropriate.
As noted above, my client was given less than two business days’ notice of the
Town’s intention to adopt proposed OPA 204 and the implementing ZBLA. This
notice period was totally inadequate. My client would appreciate additional time to
review the Proposed Amendments with his planning and transportation
consultants, comprehensively consider the impacts of the Proposed Amendments,
and engage in meaningful discourse with Town staff.
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Moreover, we note that neither of the Proposed Amendments was appended to the
Staff Report. In providing these comments, we have reviewed the most recent
versions available on the Town’s website.
Proposed OPA 204 and the Draft Urban Design Guidelines
Based on our preliminary review, my client has several concerns with proposed
OPA 204 and the draft Industrial/Commercial Urban Design Guidelines (“the Design
Guidelines”).
The Staff Report indicates that the Proposed Amendments are not intended to
apply to existing Drive-Through Service Facilities, including the Subject Property.
However, OPA 204 is not clear on how the proposed policies will apply to existing
Drive-Through Service Facilities, or even if they apply at all.
For example, policy 5.4.3.17.4 provides that the Guidelines “will be applied to
ensure land use compatibility and an attractive streetscape, as well as to minimize
conflict between pedestrians and the automobile”. This policy poses several
problems.
First, the use of the words “will be applied” mandates strict application by Town
staff of the Guidelines. This is not appropriate. Guideline documents do not have
the legal effect or status of Official Plan policy, for good reason; they are not
subject to the requirement for public consultation, and members of the public do
not have the right to appeal Guidelines or apply to amend them. Guidelines are
meant to be flexible documents that may be used as a tool to interpret or apply
Official Plan policy. As such, it is not appropriate to include in the Official Plan a
policy that mandates their strict application.
In addition, the Guidelines contain numerous standards and requirements that
would be unduly onerous in many cases, and impossible in some cases, for
existing Drive-Through Service Facilities to achieve compliance. In our view, it
would be inappropriate and constitute bad planning for the Town to attempt to
retroactively apply the proposed OPA 204 policies and/or the Guidelines to existing
Drive-Through Service Facilities.
Instead, a preferable approach would be to expressly indicate in proposed
OPA 204 that existing Drive-Through Service Facilities are permitted uses and not
subject to the policies applicable to new Drive-Through Service Facilities, or to the
Guidelines. This could be accomplished by way of a “notwithstanding clause”
excepting all existing Drive-Through Service Facilities from the application of the
policies in OPA 204, or through the incorporation of site-specific land use
designations permitting existing Drive-Through Service Facilities.
In our respectful submission, the latter approach would be appropriate for the
Subject Property. Again, the existing Drive-Through Service Facility is not legal
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non-complying, or “grandfathered”. It is an expressly permitted use on the Subject
Property, and was recognized as such when the Town adopted its most recent
Comprehensive Zoning By-law in 2006.
Applying a site-specific land use designation in OPA 204 would confirm the Town’s
policy intent to protect existing, successful commercial uses, and would recognize
the importance of the Subject Property’s prime location in Caledon Village.
Proposed ZBLA
Again, the Staff Report’s stated intent is that the Proposed Amendments are not
intended to affect or have any adverse impact on existing, permitted Drive-Through
Service Facilities. Consistent with this intent, s. 4.6.1 provides that s. 4.6, Table 4.2,
or Footnote 12 of Table 7.1 shall not apply to existing Drive-Through Service
Facilities, including the Subject Property.
However, s. 4.6.1 also includes the qualification that the specified provisions shall
not apply “so long as there is no increase to existing deficiencies”. This
qualification is ambiguous and inappropriate for inclusion in a zoning by-law.
Zoning By-laws are regulatory documents, not policy documents. Unlike Official
Plans, zoning by-laws must be applied strictly, and their provisions must not leave
room for interpretation. The proposed ZBLA does not provide any definition or
other provision clarifying the meaning of “existing deficiencies”, or describing the
circumstances that would constitute an “increase to existing deficiencies”.
Ambiguous provisions of this nature are totally inappropriate for inclusion in a
Zoning By-law. The proposed ZBLA leaves total discretion in the Town to
determine whether an existing Drive-Through Service Facility has suffered an
“increase in existing deficiencies”, which would purportedly trigger the retroactive
application of the ZBLA. Again, this approach is inappropriate and constitutes bad
land use planning.
Moreover, the effect of the combined reading of sections 8 and 9 is unclear.
Section 9 proposes to add an asterisk to all exception zones that permit Drive-
Through Service Facilities (including the Subject Property) which reads, “Subject to
Footnote (12) of Table 7.1”. Pursuant to s. 8, Footnote (12) provides that Drive-
Through Service Facilities will only be permitted in certain areas “subject to
compliance with section 4.6”.
Again, these provisions appear to constitute another way to impose the
requirements of s. 4.6 on existing, permitted Drive-Through Service Facilities in the
event of an “increase in existing deficiencies”.
To be clear, any effort to impose additional restrictions on the use of the Subject
Property as a Drive-Through Service Facility would constitute a downzoning of the
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Subject Property. The Town has no legitimate planning basis to justify the
downzoning of the Subject Property, and our client objects to it.
Conclusion
In our respectful submission, our client has not been provided with sufficient time
to review the Proposed Amendments and provide comprehensive comments to
Town staff. We strongly urge Council to defer consideration of the Staff Report and
the Proposed Amendments in order to provide our client with sufficient time to
meet with City staff with a view to resolving the wording of the Proposed
Amendments in a satisfactory manner.
We would also request that we be added to the list for notification of any decisions
made by Council on this matter.
We trust this is satisfactory, but if you require any further information, please do not
hesitate to call or email.
Best regards,
Amber Stewart
c. Mr. Jim Kennedy, MCIP, RPP
Mr. Michael Tedesco, P.Eng.
Client
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