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 PAGE 1 OF 5
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
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 PAGE 4 OF 5
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 PAGE 5 OF 5