Amber Stewart Law - Town of Caledon

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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. PAGE 2 OF 5
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 PAGE 3 OF 5
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Amber Stewart Law - Town of Caledon

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