BYLAW - Amend Zoning (McGrath Hunter) - 20020625 - 435502D(McGrath Hunter)
THE CORPORATION OF THE TOWN OF AURORA
By-law Number 4355-02.D
BEING A BY-LAW to amend
By-law No. 2213-78
WHEREAS it is deemed advisable to amend By-law number 2213-78;
AND WHEREAS the municipal Council of the Corporation of the Town of Aurora deems
it necessary and expedient to amend By-law 2213-78, as amended;
NOW THEREFORE the Council of the Corporation of the Town of Aurora enacts as
follows:
1. THAT Section 21.8 "Central Commercial (C2-6) Exception Zone" is hereby
amended by deleting the contents of that section as it applies to the lands
shown on Schedule "A" to By-law No. 4355-02.0 and replacing them with the
following:
"SECTION 21.8 CENTRAL COMMERCIAL (C2-6) EXCEPTION ZONE
21.8 Notwithstanding the provisions of Sections 21.1 and 21.2, the lands shall
be used in accordance with the following provisions: the maximum
number of apartment dwelling units shall be 30 and the maximum
building height shall be five (5) storeys, provided that the third storey is
set back 1.5 metres from the front main wall of the first storey and the
fourth and fifth storey are set back a minimum of 3.0 metres from the
front main wall of the first storey. Notwithstanding the provisions of
Section 7.2, the required amenity area, located either exterior or interior
to the building, shall be a minimum of 220 square metres.
Notwithstanding the provisions of Section 6.13.6, the floor area of the
residential portion of a non-residential building in a Commercial Zone
shall not exceed ninety-seven (97) percent of the floor area.
Notwithstanding the provisions of Section 6.31, the required planting strip
shall be nil along the southern property line. All other provisions of
Section 21.1 and 21.2 shall continue to apply."
3. No part of this By-law will come into force until the provisions of the Planning Act
have been complied with, but subject to such provisions the By-law will take
effect from the day of passing thereof.
READ A FIRST, SECOND AND THIRD TIME THIS 25TH DAY OF JUNE, 2002.
Explanatory Note
Re: Zoning By-law No. 4355-02.0
By-law Number 4355-02.0 has the following purpose and effect:
To amend By-law 2213-78, the Zoning By-law in effect in the Town of Aurora, for the lands
known as Part of Lot 17, R.P. 68, and Lot 164, and Part of Lots 163 & 165, Plan 246,
municipally known as 15,085 Yonge Street. The amendment permits the development of
the lands for a five (5) storey building, incorporating primarily commercial uses on the
ground floor and residential apartment units above. The commercial uses permitted within
the building remain the same as previously permitted including banks or other financial
establishments, business or professional offices, light service shops, personal service
shops, retail stores, dry cleaning establishments, clinics, studios, and others.
The By-law incorporates site specific standards including the following:
• the maximum number of dwelling units shall be 30
• the third storey shall set back 1.5 metres from the front main wall of the first storey;
• the fourth and fifth storey shall be set back a minimum of 3.0 metres from the front main
wall of the first storey;
• the required amenity area, located either exterior or interior to the building, shall be a
minimum of 220 square metres;
• the floor area of the residential portion of a non-residential building in a Commercial
Zone shall not exceed ninety-seven (97) percent of the floor area; and
• a buffer strip is not required along the south lot line.
TOWN OF AURORA
THE REGIONAL MUNICIPALITY OF YORK
LOCATION: Part of Lot 17, R.P. 68, & Lot 164, & Part
of Lots 163 &165, Plan 246
15085 Yonge Street
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SCHEDULE "A" TO BY-LAW NO. 4355-02.0
000116
100 John West Way
Box 1000
Aurora, Ontario
L4G 6J1
Tel: (905) 727-1375
Web: www.town.aurora.on.ca
AFFIDAVIT UNDER SECTION 34(22) OF THE PLANNING ACT (1990)
I, Bob Panizza, hereby certify that the notice for By-law # 4355-02.D of the Corporation of the
Town of Aurora, passed by the Council of the Corporation on the 25th day of June, 2002, was
given on the 9th day of July, 2002, in the manner and form and to the persons prescribed by
Ontario Regulation 199/96, as amended, made by the Lieutenant Governor-in-Council under
subsection (18) of section 34 of The Planning Act (1990). I also certify that By-law# 4355-02.D
was appealed to the Ontario Municipal Board and was approved as amended by Decision Order
No.1582, a copy of which is attached hereto as Exhibit "A"
Dated this 3'd day of December, 2002.
Town Clerk
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ISSUE DATE:
Nov. 19, 2002
DECISION/ORDER NO:
1582
Ontario Municipal Board
Commission des affaires municipales de !'Ontario
PL020708
Colleen and Bruce Ewart appealed to the Ontario Municipal Board under subsection 34(19) of
the Planning Act, R.S.O. 1990, c. P.13, as amended, against Zoning By-law 4355-02.0 of the
Town of Aurora concerning 15085 Yonge Street, Aurora (Part Lot 17 Registered Plan 68, & Lot
164, Parts of Lot 163 & 165 Registered Plan 246)
OMB File No. R020168
A P P E A R A N C E S:
Parties Counsei*/Agents
Colleen & Bruce Ewart
McGrath-Hunter Properties Michael Melling*
Town of Aurora Shelley Pohjola*
MEMORANDUM OF ORAL DECISION DELIVERED BY D. J. CULHAM
ON OCTOBER 23. 2002 AND ORDER OF THE BOARD
This application is before the Board because of the Ewarts' appeal of the Zoning
By-law 4355-02.0, previously approved by the Town of Aurora. The vacant 0.33-
hectare (0.83 acres) site at 15085 Yonge Street is found on the east side of Yonge,
south of Church Street in the old commercial core of the Town of Aurora. Retail and
commercial uses are located to the north. Commercial uses are found on the west side
of Yonge Street with residential uses beyond to the west. To the south, stands a senior
citizen apartment of six storeys. To the east, beyond the Tannery Creek, is the Ewarts'
residential lot and dwelling on Gurnett Street. A six-storey apartment is found
immediately to the north of the Ewarts' property on Gurnett Street. Between the Ewarts'
property and the site in question is a vacant treed space, which is part of the apartment
property to the north.
CORP. SERVICES DEPT.
COPIES CIRCULATED TO:
RECEI V• (o"'"D .~. ;, ~~ J
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Members of Council
C.A.O.
Directors sa;~~ ~1'
Other <1. • ~Ol-A
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NOV 2 0 2002 I
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Corporate Servlo~s D<LJ
-2-PL020708
The applicant's site, currently zoned "Central-Commercial (C2-6) Exception
Zone" and Environmental Protection (EP-5) Exception Zone changes under the
amendment in the following ways:
1. The residential portion of the building increases to 97% from the present limit of
50%;
2. The number of storeys increases from 3 to 5;
3. The number of apartment units above the commercial first floor increases from
24 to 30 units.
The Board, after discussion be_tween the Parties, determines that the essential
planning tests to apply are two in number:
1. Does the proposed amendment to the Zoning By-law conform to the dictates of
the approved Official Plan for the Town of Aurora?
2. Does the proposed amendment to the Zoning By-law present an acceptable
impact to the surrounding land uses and the Ewarts' residential lot in particular?
Colleen Ewart testified briefly in opposition to the proposed Zoning By-law. Peter
Feherty, a qualified engineer and storm water specialist; Jan Ravens, a qualified
architect; and Howard Friedman, a qualified planner, testified in support of the
application.
The Board delivered an oral decision based upon findings wherein it indicated
that the detailed reasoning and texi would follow in this memorandum. Based upon Mr.
Friedman's qualified and unrefuted testimony, the Board finds that the proposed Zoning
By-law conforms to the: Official Plan. The present designation is "Commercial Special"
under Official Plan Amendment No. 27, adopted in 1999. The previous designation was
also Commercial. In addition to the Commercial Special designation, the lands are
designated Historic Core Community, which is one specific area of the designation,
Community Commercial. This proposed zoning conforms to the standards of Section
-3-PL020708
3.2 Commercial Centres and specifically to the .height standards of 5 storeys
established in Section 3.2.(e)(i). The proposed use conforms to the permitted uses
established by Section 3.2.(f). The proposed zoning conforms to the standards
established in Section 3.2.3, Historic Core-Community Commercial Centre Policies, and
in particular to the mix of commercial and residential use of Section 3.2.3(c)(viii). The
proposed zoning by-law simply changes the previous site specific zoning to allow more
housing units above the commercial uses. It also implements the design objectives of
the Official Plan in which the second floor of the building steps back 1.5 metres from the
front fa<;:ade of the first floor .. There is another 1.5 metres setback above the third floor
for the fourth and fifth floors. The Board notes that the height allowed on this site was at
one time the same six storeys as the seniors' residence to the south and the residential
apartment immediately adjacent to north of the Ewarts' dwelling.
The Board finds, based upon the qualified testimony of Mr. Feherty, that the
steps proposed for the Tannery Creek and approved by both the Town of Aurora
Engineering department and by the Lake Simcoe Region Conservation Authority,
improve the present flood situation. Tannery Creek flows north past the Ewarts'
residential lot and through a closed and inadequate culvert on this vacant property.
Because of the inadequate capacity of the culvert, the Tannery Creek floods over its
banks upstream from this site even at the 1 to 5 year level storm. The proposed work
contemplates removing the existing culvert and replacing it on the eastern and northern
perimeter within an open storm ditch. This improves the existing situation. The flood
level is then reduced to the footprint of the proposed building. Proposed ground level
parking is limited to the daytime commercial use and the visitor parking for the
apartment units. The overnight parking required for the housing units is found below
ground in a parking garage that has its entrance above the potential flood levels. There
is no increased flood threat created by the proposed building.
The Board finds that based upon the testimony of Mr. Feherty and Mr. Friedman
there is no threat to the water supply created by this project. The Region allocates
water capacity to the Town. This project is assigned part of the Town of Aurora's water
capacity.
The Board finds that the shadow cast by this proposed building onto the Ewarts'
property, based upon the qualified testimony of Mr. Ravens, is of an acceptable impact
from what is an expected development. Detailed shadow studies, created for the full
twelve-month period, show that the proposed building's shadow stretches to the Ewarts'
-4-PL020708
dwelling just before 7:00 p.m, in the early evening during April. The Ewarts' .rear deck is
an important part of their family social functions. In May and June, there is no such
impact. By July 15th there is some impact by 7:30p.m. This situation declines to 8:00
p.m. by July 21 51 but increases to an earlier 7:00 p.m. by the end of August. The
shadow is present in September by 7:00 p.m. but is missed altogether by October.
Through the remaining fall days, there is no shadow impact on the Ewarts' dwelling.
Importantly, there is space between the applicant's site and the Tannery Creek
and beyond to the Ewarts' lot, land which is attached to the apartment building to the
north of the Ewarts' lot. Mature trees are growing on this intervening property and they
cast shadows onto the Ewarts' property and dwelling. This intervening property is 10.4
metres in width at one end and 11.3 metres at the other. The mature trees are casting
shadows at the same time as predicted for the proposed building. It is clear from the
testimony that there is no increased impact from the proposed building's shadows over
and above the level of the existing circumstances.
There is a larger context than just the specific information relating to the
predicted shadow impacts. Yonge Street, as one of the most important main streets in
Ontario from the early settlement times, possessE)s commercial land uses. The
Commercial designation is of long standing. Such land uses serve the larger
community. The buildings that house such commercial uses, by the characteristics of
their form and design, lend significantly to the identity of the whole of the community.
Multiple storeys are to be expected. More clearly, the Official Plan contemplates the 5
storeys and grants an "as-of-right" height limit of 5 storeys. Is there then an associated
"as-of-right" shadow limit? The B.oard determines from the testimony that there is but
that it is not absolute. Such an "as-of-right" shadow should not cast an unacceptable
impact upon adjacent land uses. "Unacceptable", however, cannot mean trivial or
minor. No one has guarantees against some change in an evolving urban landscape.
In this case, the Board finds that the shadow impacts, experienced if only theoretically
during a short period in the early evening, are extremely minor, if they exist at all. While
the shadow study methodology ignores the existing trees, the Board cannot.
The Board concludes that the Zoning By-law as proposed and approved by the
Town of Aurora conforms to the Official Plan, presents acceptable impacts and
represents good planning. The Board dismisses the appeal.
-5-PL020708
Motion for Cost
On behalf of his client, Mr. Melling presented a motion for cost against the Ewarts
in the range of $6,000 to $7,500. Mr. Melling demonstrated costs for the preparation of
this hearing of $15,000 in planning, engineering, architectural and legal fees. He
alluded to Board Case No. PL970336 and its decision where Chair Hubbard on
November 23, 1998 awarded similar costs.
After hearing argument from both Parties, and after reviewing the testimony
carefully, the Board finds that the Ewarts' conduct does reach the level of "clearly
unreasonable".
Despite having sufficient time, the Ewarts did not adequately prepare for the
hearing. They did not advance any substantive evidence to support their position.
Despite not attending the public meetings held by the Town to consider the proposed
zoning, they filed an objection. Yet the Ewarts never contacted the City planners or any
other planners .to discuss and to inform themselves about the planning issues. They
filed objections about water supply and yet never contacted any Town officials to
discuss or inform themselves of the facts pertaining to such assertions. They objected
on the grounds of flooding, and yet after being informed by the applicant about the
studies done to satisfy the approval agencies, they did not contact anyone to inform
themselves of the facts. The Ewarts did not request that the Town officials and officials ·
of the Lake Simcoe Region Conservation Authority testify. Similarly, when informed by
the applicant of the results of the shadow study prepared by the architect, they declined
to meet and discuss this matter. When informed of the significant cost to prepare for
such a hearing because of the needed evidence to refute the Ewarts' assertions on
flooding and shadows, they remained indifferent. The Ewarts did not take any
reasonable steps to prepare or to check the information.
The Ewarts presented documents as evidence, such as the Exhibit 8, the Jim
Tree memo dated November 11, 1998, that clearly misrepresented to the Board the
Town's Leisure Services Department's position. Yet the Ewarts did not take reasonable
steps to contact Mr. Tree or his supervisors even after being informed by the applicant
of the actual Department's position. The Board finds that Colleen and Bruce Ewarts'
actions conform closely to the OMB Rules of Practice and Procedure 106 (d), ''failing to
prepare adequately for hearing events". The Board finds their conduct is clearly
unreasonable.
-6-PL020708
The Board awards costs in the amount of $300 for the following reasons. In
assessing the amount of the costs, the Board notes that no one other than the applicant
attempted to mediate the issues of the appeal. Also the Ewarts did not have the
advantage of legal counsel either before or during the hearing or during the presentation
of the cost motion. While the Ewarts admit they did not approach their elected officials,
who could have informed them of the facts and the circumstances, no elected official
initiated contact with the Ewarts. Such intervention may have prevented this costly
hearing.
In establishing the amount, the Board is aware that the purpose is not to be
punitive, but to "discourage conduct that wastes a great deal of the Board's and Parties'
time as well as other resources". This reality obviously offsets the clear right to appeal
afforded and indeed almost encouraged by the Planning Act. The Ewarts are a family
with limited financial resources. They would obviously face financial jeopardy if
presented with a cost of $7,500 or even $6,000. The Board considers that to the Ewarts
$300 represents a significant cost deterrent.
As a result, the Board dismisses the appeal by Colleen and Bruce Ewart under
Section 34(19) of the Planning Act, against Zoning By-law 4355-02.0 of the Town of
Aurora concerning 15085 Yonge Street, Aurora.
Further, the Board awards costs in the amount of $300 against Colleen and
Bruce Ewart to be paid to McGrath-Hunter Properties.
The Board so orders.
"D.J. Culham"
D. J. CULHAM
MEMBER