Flower City

Report Planning, Design & Development Committee

Standing Committee of the Council

of the Corporation of the City of Brampton

PLANNING, DESIGN & DEVELOPMENT COMMITTEE

DATE: March 10, 2009

FILE: City File: C03W14.007

SUBJECT: INFORMATION REPORT

Application to Amend the Official Pl

(to permit the development of a com

KLM PLANNING PARTNERS INC

DEVELOPMENT LIMITED

Northeast corner of Sandalwood Pa

Creditview Road

Ward: 6

an and Zoning By-Law

mercial plaza)

- NORTHVIEW DOWNS

rkway West and

Contact: Paul Snape (905) 874-2062

OVERVIEW:

This Official Plan and Zoning By-law amendment application is for a

2600 m2 (27,987.08. sq. ft.) commercial plaza located at the northeast corner of Sandalwood Parkway West and Creditview Road.

The proposed development consists of 3 one-storey commercial

buildings, including a restaurant with drive-through.

This property is designated as a place of worship reserve site. The

reserve period expired in 2005.

This commercial development is identical to the one that was proposed

with an Official Plan Amendment and rezoning application in 2003. The

application was refused by City Council in 2004 and the decision was appealed. An Ontario Municipal Board hearing was held in 2006, and

the appeal was dismissed.

Three years have passed since the OMB decision, and the landowner is

submitting a new OPA/rezoning application for the same commercial

plaza. It should be noted that the landowner has also made an appeal of

4b Information Report

the City's 2006 Official Plan related specifically to this site. The appeal is to have this site shown on Schedule A2 - 'Retail Structure' of the

Official Plan as a "Convenience Retail" location. A hearing for this

appeal has been scheduled for June 22nd, 2009. It would be the intention of the landowner to withdraw the appeal if this current

OPA/rezoning application is approved and not appealed.

Recommendations:

1. THAT the report from Paul Snape, Manager of Development Services,

and Claudia LaRota, Development Planner, Planning Design and

Development Department, entitled "Application to Amend the Official Plan

and Zoning By-Law- KLM PLANNING PARTNERS INC - NORTHVIEW

DOWNS DEVELOPMENT LIMITED" dated March 10, 2009 be received; and,

2. THAT staff be directed to report back to Planning Design and

Development Committee with the results of the Public Meeting and a staff

recommendation, subsequent to the completion of the circulation of the

application and a comprehensive evaluation of the proposal.

BACKGROUND:

This property is a place of worship reserve site and was established as a block

on a plan of subdivision registered in 2002 (file C03W10.002 & 21T-01030B).

The 3-year reserve time expired in 2005.

On October 6,2003, the applicant submitted an Official Plan (Secondary Plan)

and Zoning Amendment application (file C03W14.006) to develop the lands for

commercial purposes. The application was refused by City Council, and

subsequently appealed to the Ontario Municipal Board. A copy of the OMB

decision is attached on Appendix 5. The OMB dismissed the appeals by

Northview Downs for a number of reasons, including that the applications to

amend the City's Official Plan and Zoning By-law, to allow for a commercial retail

plaza on the site, were made shortly after the subdivision had been registered

and neighbouring residents had purchased and occupied homes with information

that the site would be used for a place of worship or for houses. The OMB found

that there was no evidence at that time that the site's existing zoning was not

working. The OMB decided that the proposed change in land use at that time

would not imbue the public with confidence in the planning process.

The applicant appealed the OMB decision to the Courts, but the City successfully

defended the appeals with the Divisional Court and Court of Appeal for Ontario,

and the appeals were dismissed in 2007 and 2008 respectively.

Seven years have now passed since the subdivision was registered and homes occupied.

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Proposal:

This application proposes a commercial plaza consisting of three one-storey

buildings, with a total gross floor area of approximately 2600 m2 (27,987.08. sq. ft).

Specifically, the application proposes:

• Building "A" with a proposed gross floor area of 262.21 m2 (2,822.50 sq. ft.) and a drive-through

• Building "B" with a proposed gross floor area of 842.24 m2 (9,066.1 sq. ft.) • Building UC" with a proposed gross floor area of 1,528.23 m2 (16,450 sq. ft.) • A total of 141 surface parking located internally within the site

• Two full move accesses from Sandalwood Parkway and Creditview Road

• Proposed Uses:

Commercial:

1. a retail establishment having no outside storage

2. a convenience store

3. a service shop

4. a personal service shop

5. a bank, trust company, finance company that may include a drive-through

facility or window

6. an office

7. a dry cleaning and laundry distribution station

8. a laundromat

9. a dining room restaurant and a take-out restaurant

10. a convenience restaurant that may include a drive-through facility or

window

11. a health centre or fitness centre

12. an animal hospital

13. a day nursery

Institutional:

1. a religious institution

2. a park, playground or recreation facility operated by a public authority

The three buildings are proposed to be located close to the street to create a

consistent street edge. The applicant is proposing to limit the size of units within

the buildings to eliminate, if possible, the need for a truck loading space.

Property Description and Surrounding Land Use:

The subject property has the following characteristics:

4b Information Report "\

PARKWAY WEST

ROJEICIH AAAP 1 - CONCEPT SITE PLANPLANNING,

DESIGN & KLM PLANNING PARTNERS INC. DEVELOPMENT

Northview Downs Development Limited

Date: 200812 08 Drawn By: CJK CITY FILE: C03W14.007

File:CONV1 Map No: 22-31

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LOCATION

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• is located at the northeast corner of Sandalwood Parkway West and

Creditview Road;

• has a site area of 1.0 hectare (2.48 acres);

• has a frontage of 58 metres (190 feet) along Creditview Road; and,

• is currently vacant

The surrounding land uses are described as follows:

North: Vauxhall Crescent, beyond which are single detached dwellings

East: Vauxhall Crescent, beyond which are single detached dwellings

South: Sandalwood Parkway West, beyond which are single detached dwellings

West: Creditview Road, beyond which are agricultural lands

CURRENT SITUATION:

INFORMATION SUMMARY

Origin: Date Submitted: November 27, 2008

Owner: KLM PLANNING PARTNERS INC - NORTHVIEW DOWNS

DEVELOPMENT LIMITED

Official Plan: The property is designated "Residential" in the 2006

Official Plan. The applicant has appealed the City's 2006 Official Plan for the purpose of having this site

identified as a "Convenience Retail" site on Schedule A2 - "Retail Structure" of the Official Plan.

Policies within the Official Plan regarding Places of

Worship require that worship reserve sites be retained

for acquisition and use as a place of worship for a period of three years after the subdivision plan is

registered. The subdivision plan where the subject

property is located was registered in 2002.

4b Information Report 4

INFORMATION SUMMARY

Secondary Plan:

Zoning By-law:

Environmental Issues:

Documents Submitted In

Support of Application:

Proposed Access and

Parking:

Proposed Servicing:

Growth Management:

The property is designated "Institutional - Place of

Worship" and "Low/Medium Density Residential"

within the Fletcher's Meadow Secondary Plan, Area

44. An amendment to the Secondary Plan is required

to implement the proposal.

The subject lands are zoned "Institutional One -

Section 1151" according to Zoning By-law 270-2004,

as amended. An amendment to the by-law is

requested to permit the development of the subject

site for commercial purposes. Specifically, the

applicant is proposing that the site be zoned

Commercial One (C1), with provisions for additional

commercial uses.

There are no environmental issues identified with this

application.

• Concept Plan, Elevations and Landscape Plan

• Traffic Report

• Development Retail Study

• Commercial Design Brief

• Environmental Noise Study

• Street Lighting Analysis

The application proposes two full move accesses,

one from Sandalwood Parkway West and one from

Creditview Road. The applicant is aware that the

eastbound left turn into the site may be eliminated in

the future.

A total of 141 parking spaces are proposed.

Full municipal services are to be provided.

Growth management implications, if any, will be

assessed in the Recommendation Report.

4b Information Report <j

INFORMATION SUMMARY

Heritage Impact:

Outstanding Comments /

Issues:

Public Meeting

Notification Area:

\ RespectfullVsubmitted

There are no heritage issues identified with this

proposal.

A preliminary review of the application indicated that

Sandalwood Parkway West would have restricted

access only. The Transportation section has identified

a potential conflict with the location of the drive-

through being so close to the access to the site from

Creditview Rd. A review of on-site traffic circulation

will be provided in the Recommendation Report.

It must be considered if a change in the Secondary

Plan land use envisioned for this area, from

Institutional/Residential to Commercial is appropriate,

compatible with adjacent uses, and will impact

planned function of other designated commercial

areas.

Notice of the Public Meeting was given by prepaid

first class mail to all persons assessed in respect of

land to which the proposal applies and within 800

metres of the area to which the proposal applies as

shown on the last revised assessment roll, and by

public notification in the Brampton Guardian.

Adrian J^SrMM/lCIP, RPP John EXorbety^CIP, RPP Director,Tianning and Land Commissioner, Planning, Design

Development Services ind Development

Authored by: Claudia LaRota

-lb Information Report f.

APPENDICES:

Appendix 1: Official Plan (Schedule "A" General Land Use Designations) Extract

Appendix 2: Secondary Plan (Land Use Schedule)

Appendix 3: Zoning Extract

Appendix 4: Existing Land Uses

Appendix 5: Ontario Municipal Board decision, dated May 16,2006

4b Information Report

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E>CTRACT FROM SCHEDULE A (GENERAL LAND USE DESIGNATIONS) OF THE 2006 CITY OF BRAMPTON OFFICAL PLAN SUBJECT LANDS /////J N-W BRAMPTON URBAN DEVELOPMENT AREA 7 SPECIAL LAND USE POUCY AREA

RESIDENTIAL OPEN SPACE o o

INDUSTRIAL PROVINCIAL HIGHWAYS

1: 6,000 50 100

Meters

ROWER CITY

PLANNING, APPENDIX 1 DESIGN &

DEVELOPMENT *" > 2006 OFFICIAL PLAN DESIGNATIONS

BRAMPTON.CA KLM PLANNING PARTNERS INC.

Sate: 2008/12/05 Northview Downs Development Limited riap No.: 22-31 Drawn By: CJK CITY FILE: C03W14.007

SUBJECT LANDS

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EXTRACT FROM SCHEDULE SM4W OF THE DOCUMENT KNOWN AS TH£ fUTCHWS MEMMWN SECONDARY PUN

RESIDENTIAL

LOW / MEDIUM DENSITY RESIDENTIAL

PLACE OF WORSHIP

MEDIUM DENSITY RESIDENTIAL ELEMENTARY SCHOOL

TRANSPORTATION OPEN SPACEARTERIAL ROADS

COLLECTOR ROADS WOODLOT

STORM WATER MANAGEMENT FACILITY

SECONDARY PLAN BOUNDARY 6 NEIGHBOURHOOD PARK AREA SUBJECT TO AMENDMENT

INSTITUTIONAL SECONDARY VALLEY LAND

SENIOR PUBLIC SCHOOL

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PLANNING, APPENDIX 2 - SECONDARY PLAN DESIGNATIONS DESIGN & KLM PLANNING PARTNERS INC. DEVELOPMENT (Northview Downs Development Limited)BUMH0H.U

Date: 200812 08 Drawn By: CJK CITY FILE: C03W14.007 File: SP Map No: 22-31

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B SUBJECT LANDS

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PLANNING,

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BRAMPFON.CA

Date: 2008/12/05

Map No.: 22-31 Drawn By: CJK

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SANDALWOOD PARKWAY WEST

1: 5,000 50 100

Meters

APPENDIX 3

ZONING DESIGNATIONS

KLM PLANNING PARTNERS INC. Northview Downs Development Limited CITY FILE: C03W14.007

SANDAWOOD PAX/WAY WEST

SUBJECT LANDS

RESIDENTIAL

A AGRICULTURAL

V VACANT

lOIEIOTT

PLANNING, APPENDIX 4 - DRAFT EXISTING LAND USE DESIGN & KLM PLANNING PARTNERS INC. DEVELOPMENT Northview Downs Development LimitedIIMPTOHU

Date: 2008 12 08 Drawn By: CJK CITY FILE: C03W14.007 File: ELU Map No: 22-31

ISSUE DATE:

May 16,2006

DECISION/ORDER NO: PL041061

1466 Ontario

Ontario Municipal Board

Commission des affaires municipales de I'Ontario

Northview Downs Developments Ltd. has appealed to the Ontario Municipal Board under

subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's

refusal or neglect to enact a proposed amendment to Zoning By-law 151-88 of the City of

Brampton to rezone lands respecting Part Lot 14, Concession 3 W.H.S. from "Institutional One -

Section 1151 (11-Section 1151) to Commercial One - Special Section (C1-Special section -xxxx)

to permit the development of a commercial retail plaza

OMBFileNo.Z040132

Northview Downs Developments Ltd. has appealed to the Ontario Municipal Board under subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal or neglect to enact a proposed amendment to the Official Plan for the City of Brampton to

redesignate land at the Northeast comer of Creditview Road and Sandalwood Parkway West from Place of Worship to Convenience Retail - Special Section Approval Authority File No.: C3W14.6

OMB File No. 0040211

APPEARANCES:

Parties Counsel

Northview Downs Developments Ltd C. Barnett

City of Brampton T. Yao

DECISION DELIVERED BY K. J. HUSSEY AND ORDER OF THE BOARD

Northview Downs Developments Limited (Northview) has appealed the City of

Brampton's (City) refusal to enact proposed amendments to the Official Plan and

Zoning By-Law to permit the development of a commercial retail plaza on lands located

at the northeast corner of Creditview Road and Sandalwood Parkway West. This site is

part of a subdivision plan and is dual zoned to permit a place of worship and low density

residential uses.

Background

The City and Northview entered into a subdivision agreement, registered in

November 2002. That agreement provided that the subject site should be reserved for

-2- PL041061

the purposes of religious institutions for three years from the date of registration. At the

end of that three-year period, if the land was not sold for the intended institutional use

then the developer had the right to residential development without further application

for rezoning. Under the agreement, the developer was obliged to warn prospective

purchasers of the intended uses by posting a warning sign on the site and by displaying

a preliminary sales plan approved by the City with this information. Acknowledgement

of a notice provision to this effect was also included in agreements of purchase and

sale.

Northview listed the property with a realtor between November 2002 and October

2003. There were no offers from any religious institutions during this time. In October

2003, Northview submitted a rezoning application to the City of Brampton for mixed

commercial and residential uses. The City's planning department responded on

November 21, 2003, with preliminary comments from the Growth Management Review

team to the effect that the site should be developed either as residential or commercial

but not both. There were several other exchanges between the Planning Department

and Northview about the rezoning application. In February 2004, taking into account

the Department's comments, Northview submitted a revised proposal for a commercial

plaza.

On November 8, 2004, the Brampton City Council denied the rezoning

application. Northview appealed to the OMB on November 10, 2004. The City filed for

an injunction with the Ontario Superior Court of Justice compelling Northview to

withdraw the appeal to the OMB and to refrain from any new application for rezoning the

subject property for 25 months following the Court's order. The City claimed that

Northview was in breach of the sub-division agreement.

The Board held a pre-hearing conference on these appeals on May 26, 2005. At

that time the Board was informed of the City's application for an injunction against

Northview. The Board's written disposition of the pre-hearing conference,

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Decision/Order number 1452, issued on June 6, 2005, set a hearing date for November

29, 2005 as long as the hearing did not conflict with any decision of the Court.

The Parties were directed by the Board to exchange an issues list by September

30, 2005 and were encouraged to have their experts meet for the purpose of further

focusing issues in dispute. The City offered to invite Participants (identified in the

Board's Decision) to refine and include their issues with the City's case and this was

acknowledged in the Board's disposition.

The application before the Courts was heard on September 21, 2005. The Court

dismissed the application by the City and awarded costs to Northview. The Appeal to

the Ontario Municipal Board proceeded as scheduled on November 29, 2005.

The Motion

At the commencement of the hearing, Counsel for Northview told the Board he

understood that the City intended to bring a motion to adjourn based on Northview's

amended application sent to the City on November 18, 2005. Counsel for Northview

submitted that his client would not consent to an adjournment. He stated that the

amended application had removed the food retail store from the proposal and added

more landscaping details. Counsel for Northview submitted that this was a responsible

move made in response to the City's comments on the proposal and in response to the

Board's direction to further focus the issues.

The City moved to adjourn on the following grounds:

1) The residents had not seen the plans, which had been materially changed."

This was a matter of fairness as the residents had a right to know what

they were dealing with;

2) The City received these plans on November 18 and there was insufficient

time to allow Counsel to discuss the changes with City staff, to present the

changes and receive instructions from the City, which meets only every

Formatted: Bullets and

Numbering

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two weeks. Counsel had received instruction from the City to seek an

adjournment;

3) Compared to other applications illustrated by Exhibits 7(a) and 7(b), this

application had moved too quickly. The three-year reserve period for the

specified land use had ended on November 12, 2005; and

4) Reasons for the Court's decision were not available and it may have been

beneficial to have those reasons before embarking on a hearing.

Counsel for Northview suggested a break so that he and the Applicant's market

expert could present the proposed changes to the residents present. Counsel

suggested that two of the three residents, Mr. and Mrs. Wilson, participants in the

hearing, were interested in preserving the commercial zoning on their property. The

marketing evidence, which Northview intended to call, would be of interest to them to

the extent of the effect that the rezoning would have on the commercial designation of

their property.

On resumption, Counsel for Northview informed the Board that during the break

he had been unable to meet with the residents who met instead with Counsel for the

City. The parties proceeded to argue the motion and the Board also heard evidence

from the participants.

The participants testified that this was the first time they knew of revised plans

and that this was not enough notice for the residents, who were a difficult group to co

ordinate.

Counsel for Northview submitted that the timing for presenting the revised plans

was driven by Northview's inability to meet with the City. As early as September,

Northview had requested meetings with the City to carry out the Board's directive that

experts attempt to narrow outstanding issues. Counsel for Northview filed

correspondence (Exhibit 6) dated October 11, 2005, November 11, 2005 and November

-5- PL041061

14, 2005, confirming that several requests were made to meet with the City's experts.

On November 11, 2005, Northview advised the City that there had been revisions to the

proposal and another request was made for discussions with the City prior to the

hearing.

Counsel for the City replied on November 14, 2005, gave his permission for

contact and provided telephone information for the marketing, noise and traffic experts.

Decision on Motion

The motion to adjourn was dismissed. The Board was satisfied that the City and

participants had been allowed ample time to review the changes and to prepare for the

hearing. A hearing date was set in June 2005 and on September 21, 2005, the Court

resolved the issue of appropriateness of filing the appeal during the three-year reserve

period. The City did not dispute Northview's evidence that Northview made several

attempts to meet with the City's experts.

The Board found that were no new issues arising from the amended application;

instead the changes that were made would lessen the impact and hence, would narrow

the issues. This should not have been a surprise to the City or the participants in light

of the Board's Order No. 1452. The Board found that the City and the Participants

suffered no prejudice as a result of the changes to the proposal and denied the motion

for an adjournment.

The Hearing

The Board heard evidence from two experts in land use planning: Mark

Yarranton in support of the application and Paul Snape, Manager of Planning and

Development Services for the City of Brampton. Ted Martin, an Architect with expertise

in urban design, and Mathieu S try bos, a landscape architect, gave evidence as a panel

in support of the application. Mr. Rowan Faludi, a market economist, presented an

extensive marketing study commissioned by Northview for the purpose of establishing

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that there is a need for the proposed commercial plaza with sufficient market share for

other properties already designated for that use.

The Applicant presented traffic studies and Tom Rae, a transportation engineer

involved in the studies, gave evidence in support of the application. Dr. Alfred

Lightstone, a professional engineer with extensive knowledge in acoustics, was retained

by Northview to do a feasibility study on noise impact based on the conceptual site plan.

Dr. Lightstone gave evidence on his findings.

The City called evidence by a Real Estate Appraiser. Participant and resident in

the immediate vicinity, Derek Miners, and Mr. R. Declau, also residing in the immediate

neighbourhood, testified as did a former resident, Mr. Irving. Mrs. S. Wilson, participant

and owner of a site designated for convenience retail, also gave evidence on her

concerns regarding the future of her property if the applications were to succeed.

The Proposal

The Applicant proposes to rezone a 1.006-hectare vacant parcel from

"Institutional 1" to "Commercial 1" to permit development of a convenience retail centre

intended to satisfy the daily convenience shopping needs of current and future residents

in the neighbouring areas as well as passers-by from Sandalwood Parkway and

Creditview Road.

The proposed location is in Fletchers Meadow, a newly developing residential

community. The subject site is situated at the northeast corner of Sandalwood Parkway

and Creditview Road. Creditview Road is a north-south arterial road and Sandalwood

Parkway is an east-west collector road connecting Creditview Road to the Fletchers

Meadow community. There are residencies south of Sandalwood Parkway. A local

road, Vauxhall Crescent, beyond which are single detached residences, bound the

north and west of the subject site.

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The conceptual site plan indicates that there would be access to the site from

Sandalwood Parkway and Creditview Road. Vehicular access would not be permitted

from Vauxhall Crescent.

The Plaza would contain three single storey buildings indicated on the proposed

site plan as A, B and C and 143 parking spaces. The uses contemplated are the full

range permitted including a retail establishment, a convenience store, professional

services shops, a financial institution that may include a drive through facility, dry-

cleaning and laundry distribution station, a dining room, take-out and convenience

restaurants that may include a drive through facility. This designation would also permit

institutional uses including those for which it is currently zoned.

Building A is proposed to be adjacent to Creditveiw Road and is intended for a

convenience restaurant or Bank with drive-through facility. Building B, which is adjacent

to Vauxhall Crescent, is to be approximately 842-square metres, multi-tenanted and

intended for retail purposes. Building C would be approximately 1,528-square metres,

adjacent to Sandalwood Parkway, is intended for offices, restaurant or personal needs

shops. Garbage storage would be located internally in refrigerated facilities. Parking

and drive through facilities would be located between the buildings away from the

residential area and the parking lot would be divided into landscaped islands.

The building design is proposed be complementary to the surrounding

residences with similar rooflines and brick tones to those used on the houses in the

area. The heating and air conditioning units would be concealed on the roof on a

depressed flat surface intended to deflect noise upwards. Signage would face the

street and not the residences. Extensive landscaping and buffering have been proposed

with more attention paid to the areas adjacent to the residences. The iron fencing

proposed is attractive and the lighting would be of a scale and character compatible to

residential areas. It is proposed that there will be coach or lantern type fixtures on 5

metre poles with care taken to prevent glare and spill over to residential areas.

Altogether, a very attractive design is proposed for this development.

-8- PL041061

Applicant's Arguments

Northview submits that there is no valid planning reason that precludes an

application for re-zoning the subject property. The Official Plan Policies contemplate

complementary commercial uses in residential areas and the fundamental test for is

compatibility with the surrounding neighbourhood. Compatibility is measured by impact

and Northview led extensive evidence to test the compatibility of the proposal. Those

tests were aimed at the usual triggers in this type of development and the issues raised

by the residents and the City. Those issues include demand for the service, noise,

traffic, litter, odours, lighting and general concerns about the appearance of the site.

Northview satisfactorily addressed those issues and the City mostly concurred with

Northview's expert witnesses. The following evidence was presented on some of those

issues.

Market Study

A thorough market assessment was provided to support the proposed

commercial development. Market Economist, Rowan Faludi, testified that there is

insufficient convenience retail space reserved by the City to satisfy the needs of the

growing population in the area. Mr. Faludi referred the Board to the sites designated for

this purpose and demonstrated that less space was designated than was

recommended. Mr. Faludi testified that market demand is sufficient to support the

proposed development without jeopardizing the viability of the other designated spaces.

There are currently six sites designated in Fletchers Meadows and only one

located within the study area. This site is approximately 500-metres north of the subject

property and consists of three separate parcels, one of which is owned by B and S

Wilson, participants in this matter. There are no immediate plans to develop the site,

and in Mr. Faludi's opinion, the feasibility of developing that site is questionable. It is

currently occupied by two recent residential developments and one of the parcels is

vacant. Mr. Faludi suggested that access to that site might prove to be problematic.

-9- PL041061

Mr. Faludi testified that the site owned by the Wilsons and others could accommodate

approximately 10,000-square feet of convenience commercial space and his report

concludes that the area can accommodate an additional 36,895-square feet of

convenience space, much of which could be provided by the subject property.

The City did not dispute Mr. Faludi's findings.

Noise

The evidence from the environmental noise feasibility analysis presented by

Northview was uncontradicted. The standards used for this analysis were the Ministry

of Environmental (MOE) guidelines for stationary sources in urban areas. The main

potential concerns were rooftop HVAC equipment, drive-through order board

loudspeakers and idling cars in queues. The conclusion was that although this type of

development has the potential to exceed the guidelines, noise mitigation could be

successfully employed to meet the prescribed standards and Northview proposed to

meet those standards.

The City concluded that noise was not an issue although it was noted that the

impact from the sources excluded from the MOE's guidelines were not analysed and

some of those were applicable to this proposal. Among those cited by the City are the

occasional movement of vehicles on the property such as infrequent delivery of goods

to the convenience stores and fast food restaurants and noise resulting from gathering

people at facilities such as restaurants. However there was no evidence that those

exclusions would cause undue impact.

Traffic

Northview's traffic expert gave evidence that the study undertaken focussed on

site access, trip generation from the proposed development and impact on the current

road system from the additional traffic that would be generated. The City did not

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dispute the conclusion that traffic flow and road accommodation would meet acceptable

standards.

Other Issues

The Architectural and Landscape details of the development were in keeping with

the City's guidelines and sensitive to the surrounding land use. The proposed plans

revealed an attractive development with sufficient landscape buffering. Similarly, the

lighting proposed is of a high quality and would be compatible with the residential

neighbourhood.

The City's Argument

Paul Snape, Manager of Planning and Development Services for the City of

Brampton testified that the City has no objections to Northview's claim that the proposal

meets the guidelines and under a different set of circumstances, it is a proposal that

could be supported by the City.

Rather, the City objects to the timing of the application and the consequence of

that timing. The City claims that if the application were to succeed, the public would

lose confidence in the planning process. The posted warnings that are meant to

provide information about potential land use prior to the purchase of a home would be

meaningless if the information provided could be changed in such a short period of time.

Mr. Snape testified that the rapidly growing City has had many complaints from

purchasers of residential properties about incomplete information relating to their

purchases. The City found it necessary to implement a policy that requires developers

to prepare, with approval from the City, Community Information Maps or Preliminary

Maps, to provide homebuyers with information about potential concerns. On March 1,

2002, Northview obtained approval from the City for the Preliminary Sales Display Plan

(Exhibit 41) for the sub-division. That map has several warnings posted including:

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"The Church site in this sub-division may eventually be converted to residential

uses and houses will be built instead."

The sub-division agreement signed by Northview also stipulated the following:

34.1 The developer shall, prior to anyone offering lots, blocks, or dwelling units

on the Plan for sale to the public, erect signs:

34.1.3 on all lots or blocks zoned or proposed to be zoned for Church purposes,

indicating that the church block will be developed for church purposes or if

not used for church purposes may In future be developed for low

density, medium density or medium-high density residential

purposes as the case may be. in accordance with the City's zoning

bylaw (emphasis added).

Mr. Snape testified that his interpretation of "may in future be developed..." is that

the developer has discretion to use the alternative designation. In his opinion "may" in

that context does not mean "or any other use", as Northview has suggested.

Mr. Snape also takes issue with Northview's submission that a note on the

community information map states that the "map may be revised without notice to

purchasers" and purchasers are thereby warned that things may be different without

notice. In Mr. Snape's opinion, that note refers to changes for small items such as

mailboxes, bus stops, and catch basins but certainly not to land use. By contrast,

Northview's position is that the notice places no such limitation on what changes can be

made.

Northview has suggested that a prudent purchaser ought to look to the Official

Plan to determine potential land use for a vacant site. Mr. Snape disagreed and stated

that a purchaser should be able to rely on the map approved by the City, the purpose of

which is to inform the public before a purchase is made, on matters that may concern

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them and to take comfort in the warnings that are posted. The map, he said, makes it

clear what should be expected by the purchaser.

With respect to the proposal, Mr. Snape testified that although he agrees that the

proposal meets the guidelines there is a different level of activity at a commercial plaza

than at a place of worship or a residential development. An example of this is the noise

from a speakerbox of a drive-through restaurant. Mr. Snape testified that the noise may

very well be within the MOE's guidelines but it is not what the residents expected when

they moved to the area. He stated that the area is new and people expect that changes

will not happen rapidly. Mr. Snape agreed with Mr. Yarranton that planning is a

dynamic process but stated that it is not a fleeting process.

Mr. Snape referred the Board to the Recommendation Report of May 6, 2004,

found in "Exhibit" 30 at page 51, which states:

There is a public interest in upholding the policies in the Official Plan, particularly in newly developing areas. Prospective homebuyers rely on the policies of the Official Plan and Secondary Plan for a general assurance of what kind of land uses are

planned for in the community that they will live. While acknowledging that land uses can and do change, allowing the subject proposal to develop for uses that are significantly

different from what was intended and prescribed by the policies of the Official Plan and

Secondary Plan does not allow potential home buyers to make informed decisions with a reasonable level of assurance of future land uses in the area they are choosing to live...

The City has a responsibility and commitment to provide existing and new residents with community information that is as accurate as possible and conforms to the land use designation prescribed by the Official Plan and Secondary Plan.

Derek Miners, who resides on Vauxhall Crescent, supported Mr. Snape's

evidence in this regard. Mr. Miners testified that when he purchased his home he put

considerable thought into the process and did research into his surrounding

neighbourhood. A significant point of focus for him was the vacant property directly

across the street from the home he would purchase. He relied on the information that

was provided by the Builder and on all planning information provided by the City that the

land would be used for a place of worship or in the alternative residential homes of

medium to low density. He testified that had the words "commercial" or "retail" been on

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the Builder's Plan or any closing document provided, he would not have purchased that

home.

Northview responded to the City's position on the timing of the application by

pointing out that during the lengthy period in which they were engaged with the City in

the rezoning process the issue of timing was never raised. Northview submitted that the

issues addressed by Northview in this hearing and those identified in the Board's

procedural order were the issues raised by the City. As a result of those discussions,

Northview invested significant time and went to great expense to address those issues.

Northview submits that is the process that led to this point and if all commercial

applications for that site were seen to be fundamentally unacceptable the City ought to

have said so at the beginning of the process; anything otherwise is a waste of

resources. Northview submits that the Board ought not to place significant weight on

the City's position on timing in light of the history of the process, which was unfair and

unreasonable throughout.

Evidentiary Rulings

Counsel for the City has requested written reasons for three evidentiary rulings

by the Board in these hearings.

1) During examination-in-chief of Northview's witness, Rowan Faludi,*

Counsel for the City objected to a question put to him on his discussions

with David Waters, Manager of land use policy for the City, who conducted

the review of the market report. Mr. Faludi was asked, " What is your

understanding of Mr. Waters' view on the question of marketing?" Counsel

for the City objected to the question claiming that those discussions were

for the purpose of settlement and were privileged.

The Board ruled that the question could be asked as the discussions were not for

the purpose of settling the matter before the Board but to determine what, if anything,

the parties agreed to in accordance with the Boards pre-hearing disposition which

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encouraged the parties to narrow the issues. The Board agreed with Counsel for

Northview that the purpose of the communication is to reach an agreement. Once

reached, there is no prejudice to the parties and those discussions can be put before

the Board. Otherwise there would be no point to the discussions and the premise of the

Board's direction would be nonsensical.

2) Counsel for the City requested that his summary of the evidence or

Northview's witness, Rowan Faludi's, be entered as an exhibit for the

purpose of asking the City Planner certain questions. Counsel for

Northview objected.

The Board ruled that the summary could not be entered. The Board had taken

its own extensive notes so questions could be put to the witness without the aid of

Counsel's summary. The Board considered the request to be improper as Counsel was

not a witness and not subject to cross-examination and therefore ought not to be

advancing any evidence of his own.

3) Counsel for the City requested that a Neighbourhood sales map with*

accompanying sales information dated February 2006 be entered as an

exhibit. Counsel for Northview objected on the grounds that the evidence

was irrelevant.

The Board ruled against admitting the evidence. This hearing was already too

lengthy with over 50 exhibits and the Board found that information was not helpful in

making a decision based on planning principles.

Formatted: Bullets and

Numbering

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Decision on Hearing

Having considered all of the evidence presented in seven days of hearings, and

having considered the submissions of the parties, the Board finds as follows.

The Board agrees with Northview that the City should have been forthcoming at

the beginning and its position should have been made clear when Northview embarked

upon this process. The Board, however, does not have the discretion to review the

process of the City's administrative department and to make its decision based on those

actions. This is a new hearing with new applications before the Board. The Board's

duty is to determine whether the proposed applications represent good planning and are

in the public interest.

Northview submits that all the issues identified by the residents and the City have

been satisfied and the proposal is compatible with the neighbouring residential

development and therefore meets the requirements for the Board to grant the relief

sought. The City's Planner has agreed that the proposal meets the guidelines and the

Board heard no evidence that the development would cause any unacceptable impacts.

However, compatibility is only one of the considerations in determining whether a

change in designation should be allowed. Public confidence in the process that brings

about that change is an equally important consideration and is fundamental to good

planning. It is important that the public have confidence that the process of change is

open, measured and orderly. The Planning Act states that its purpose is to provide a

fair and open process. The Board finds that these parameters were not met in this

case.

Counsel for Northview submits that planning is not static. The Board agrees; but

sanctioning change that is as hasty as that proposed would not only deprive the public

of any assurance that planning documents mean what they say but would cause

instability and thereby undermine the rationale behind planning. The evidence

establishes that Northview embarked on the process to amend the zoning mere months

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after the homes immediately opposite the site were first occupied. These homeowners

were unaware at the time that plans for changes in their neighbourhood were underway

and could not possibly have anticipated these changes prior to purchasing their homes.

For example, home-owner Mr. Miners testified that he had signed an

acknowledgement that the site would be used, as the posted notices said, for religious

institutions or for residential purposes. Mr. Miners testified that he expected this to have

been the case and made his decision to purchase based on that information. The

Board finds that in such circumstances, if the applications were allowed, the public

would be justifiably cynical about whether there is any purpose at all behind the

Planning Act. Such a decision would not serve the public well and therefore its result

could not constitute good "planning".

Counsel for Northview has argued that the members of the public opposed to the

proposed changes would object even if these changes were proposed ten years from

now. At this stage, the argument, while not without force, is merely speculative.

Nevertheless, if the changes were proposed ten years from now, adequate notice would

have been provided to the public who, at that point, could govern themselves

accordingly. More importantly, the Board finds that sufficient time is needed to test

whether the Secondary Plan policies and zoning regulations are working. Those

strategies, which were only recently fashioned, having been subjected to a public

process, cannot be so readily discarded where there is no evidence that the alternative

residential use is not unsuitable. If a publicly sanctioned procedure could be discarded

at any time, the public would understandably lose confidence in the effectiveness of

land use planning.

Counsel for Northview has questioned what period of time would be appropriate

to bring this application and the City's planning witness admitted that he was unable to

answer that question. Notwithstanding, the Board finds that, at this stage, the

appearance that the rules could change as soon as the ink dries on the purchase

agreements will not imbue the public with confidence in the planning process.

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For these reasons the Board finds that the applications cannot succeed at this

time and therefore the appeals are hereby dismissed.

So Orders the Board.

"K. J. Hussey"

K. J. HUSSEY

MEMBER