PL081487

IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Dimilta Bros. Investment Group Limited Appellant: Applicant: Subject:

Nasir Safi Logos Baptist Church Minor Variance

Variance from By-law No.: 177-96 Property Address/Description: 133 Old Kennedy Road Municipality: Town of Markham OMB Case No.: PL081487 OMB File No.: PL081487 Municipal No. A/64/08 A P P E A R A N C E S :

Parties Counsel Logos Baptist Church

D. Hindson

Town of Markham

J. Streisfield

Dimilta Bros. Investment Group Limited

J. Hart

Nasir Safi

MEMORANDUM OF ORAL DECISION DELIVERED BY M. G. SOMERS ON APRIL 6, 2009 AND ORDER OF THE BOARD

Context

The Logos Baptist Church (“the Applicant”) located at 133 Old Kennedy Road (“the Subject Property”) in the Town of Markham (“the Town”) wants to construct a youth ministry building and a parking garage on its premises. To do so, the Applicant will require the following variances to By-law 177-96:

1. A minimum side yard setback of 3 metres for the parking garage, whereas the By-law requires a minimum side yard setback of 15 metres.

Ontario Municipal Board

Commission des affaires municipales de l’Ontario

ISSUE DATE:

April 14, 2009

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2. A minimum front yard setback of 3 metres, whereas the By-law requires a minimum front yard setback of 9 metres.

3. A height of 10.6 metres for the parking garage, whereas the By-law permits a parking garage within 20.0 metres of a residential zone to have a height of 8 metres.

4. A minimum height of 9.5 metres for the proposed youth ministry building, whereas the By-law requires a minimum height of 10.5 metres.

On November 5, 2008, the Committee of Adjustment (“the Committee”) approved the Application for minor variance subject to a number of conditions. However, Dimilta Brothers Investment Group Limited (“Dimilta Brothers”) and Nasir Safi appealed the Committee’s decision pursuant to subsection 45(12) of the Planning Act.

Present at the hearing was D. Hindson, Counsel for the Applicant, J. Hart, Counsel for Dimilta Brothers and J. Steisfield, Counsel for the Town. In addition, Joanne Barnett, a qualified land use planner retained by the Applicant, was present and provided evidence in support of the Application. Timothy Yeung, the Chief Administrator and Member of the Board of Deacons for the Applicant, was present and testified in support of the Application.

Mr. Hindson advised the Board that his office was informed that Mr. Safi would not be attending the hearing. Nasir Safi did not appear at the hearing.

Preliminary Matters

At the beginning of the hearing, Mr. Hindson and Mr. Hart advised the Board that the Applicant and Dimilta Brothers had reached a settlement. Counsel filed a copy of the Minutes of Settlement (Exhibit 1). Mr. Steisfield informed the Board that the Town did not agree with clause 2 of the Minutes of Settlement which stated that the Parties had agreed to a 1.5 metre landscaped buffer adjoining the south lot line. It was the Town’s position that the extent of the landscape buffer would be subject to site plan control approval (Exhibit 4, Tab 13).

Mr. Hindson further advised the Board that the Applicant, Dimilta Brothers and the Town, had agreed to a number of conditions if the requested variances were

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authorized. Counsel filed a copy of the Conditions and is attached herewith as Attachment “1” to this Order.

As a result of the abovementioned settlement, Mr. Hindson asked the Board to amend Variance # 1 and to order that notice would not be required pursuant to subsections 45 (18.1) and (18.1.1) of the Planning Act. Mr. Hindson requested that Variance # 1 be amended to the following:

1. A minimum south side yard setback of 6 metres for the parking garage, whereas the By-law requires a minimum side yard setback of 15 metres.

It was Ms Barnett’s evidence that the abovementioned amendment was due to the settlement reached by both Parties. It was Ms Barnett’s opinion that the amended variance would be minor and that notice would not be required. Based on the evidence of Ms Barnett, the Board amends the Application pursuant to subsection 45(18.1) of the Planning Act. In addition, pursuant to subsection 45(18.1.1) of the Planning Act, the Board finds that no further notice is required (hereinafter all four variances will be defined as “the Amended Variances”).

Background and Surrounding Area

It was Ms Barnett’s evidence that the Subject Property is approximately 0.9 hectares in size. The Subject Property is located in Milliken at the south east corner of Old Kennedy Road and Aldergrove Drive. Surrounding land uses include residential to the north and east, vacant land to the south, and commercial and residential uses to the west.

A portion of the lands just west of the Subject Property (158, 168 and 178 Old Kennedy Road) are currently under review by City Staff for a proposed subdivision consisting of approximately 82 stacked townhouses and a three-storey, mixed-use building (residential with grade related retail).

Ms Barnett testified that the Amended Variances were sought to facilitate an expansion to the Church. The proposed expansion is to include a new 1,488 square metre, two-storey youth ministry building, a three-level parking garage containing approximately 218 parking spaces and an addition to the existing church building. The

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addition would consist of a 76 square metre mezzanine providing an additional 100 seats for church patrons and approximately 218 square metres of office and basement storage space.

Planning Evidence

It was Ms Barnett’s evidence that the proposed development is consistent with the Provincial Policy Statement (“the PPS”) and that it represents good planning.

She testified that the Subject Property is designated “Commercial – Community Amenity Area” in the Official Plan. In addition, the Subject Property is zoned CA2*283 (H) 277 [Community Amenity Area] and R2*276 (H) *277 [Residential] under By-law 177-96, as amended.

It was the evidence of Ms Barnett that the Subject Property is part of the Secondary Plan for “Main Street Milliken” (Exhibit 3, Tab 8). She notes that notwithstanding section 5.3.3 (d) of the Secondary Plan, the Church is deemed to conform to the Secondary Plan. She maintains that the proposed development and Amended Variances conform to the general intent and purpose of the Secondary Plan.

Ms Barnett testified that the proposed development conforms to section 3.4.1 “Commercial Policies” of the Official Plan, which encourages the mixture of compatible commercial, residential and other land uses, including places of worship at appropriate locations. She maintains that the built form of the proposal is consistent with the Town’s urban design objectives and policies.

It was Ms Barnett’s opinion that the proposed development would have a harmonious interface with the existing commercial and other land uses in the area. She maintains that the proposal is pedestrian oriented and located in a transit-supportive area along a corridor.

Ms Barnett notes that, according to the Official Plan, a “Community Amenity Area” is to provide for a multi-use, multipurpose center offering a diverse range of retail, service, community, institutional and recreational uses serving several nearby residential and/or business areas. She testified that a place of worship is permitted in this designation. She maintains that the proposed development would provide for

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services for nearby residential areas, such as religious services, an Adult Diabetes Clinic for the Markham Stouffville Hospital to educate and counsel the Chinese community in the area, and the youth buildings to be used by outside groups in the area.

It was Ms Barnett’s evidence that the Amended Variances conformed to the general intent and purpose of the Zoning By-law 177-96. For example, she maintained that the Amended Variance for the reduction in the front yard setback from 9 to 3 metres would bring the building envelope closer to the front lot line and would help create an active and pedestrian-friendly streetscape, consistent with the Town’s vision for Old Kennedy Road.

She testified that By-law 177-96 permits parking garages. It was her opinion the proposal conformed to the parking By-law requirements.

Ms Barnett stated that the proposed multi-level parking structure would help to alleviate on-street parking concerns on adjacent streets in the immediate area and that the diversity of development occurring on Old Kennedy Road would be desirable. Ms Barnett maintained that during the periods that the parking garage was not in use, there would be a gate to close the garage for security purposes.

As previously mentioned, the Town did not agree with clause 2 of the Minutes of Settlement which stated that the Applicant and Dimilta Brothers agreed to a 1.5 metre landscaped buffer adjoining the south lot line. The Board notes that Ms Barnett acknowledged in her testimony that the extent of the landscape buffer would be subject to site plan control approval. The Board concurs with the Town and finds that this matter in particular will be determined by the site plan control process.

It was Ms Barnett’s evidence that the Amended Variances were minor. She testified that the proposal would be compatible with the uses on adjoining lands and in the vicinity. She maintained that the proposal would not have any unacceptable adverse impacts on neighbouring uses by virtue of noise, dust, fumes, vibration, lighting, shadowing and unsightly appearance.

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Furthermore, it was Ms Barnett’s evidence that the proposed development was an appropriate use of the Subject Property. She testified that some of the services provided by the proposal such as the youth ministry building, would benefit the community at large. In addition, she maintains that a large portion of the congregation lives in the vicinity. She further testified that the proposed development would be in the public interest.

In summary, it was Ms Barnett’s evidence that the Amended Variances satisfy the four tests outlined in subsection 45(1) of the Planning Act.

Conclusions and Findings

The Board has carefully considered all the viva voce evidence and documentary evidence presented at the hearing. The Board finds that the uncontradicted expert land use planning evidence of Ms Barnett to be credible, persuasive and trustworthy.

Mr. Safi did not attend the hearing and as such there was no evidence at all in opposition to the Application.

The Board finds particularly noteworthy that the Applicant and Dimilta Brothers came to a settlement regarding the Application. However as previously mentioned, the Board finds that the extent of the landscaped buffer mentioned in clause 2 of the Minutes of Settlement will be subject to site plan control approval.

In addition, the Applicant, Dimilta Brothers and the Town agreed to a number of conditions to ensure the proposal satisfies the four tests outlined in subsection 45(1) of the Planning Act.

The Board notes that the Committee approved the Application subject to a number of conditions. In addition, no other residents appeared at the hearing to oppose the Application.

Based on the uncontradicted expert land use planning evidence the Board finds that the four tests outlined in subsection 45(1) of the Planning Act have been satisfied. The Board finds the Amended Variances are minor and desirable and that the Amended Variances conform to the general intent and purpose of the Official Plan and the Zoning

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By-law. The Board further finds that the Amended Variances and proposed development is consistent with the policies of the PPS and represents good planning.

The Board Orders that the appeals are dismissed and the following Amended Variances to By-law 177-96 are authorized subject to the Conditions set out in Attachment “1” to this Order.

1. A minimum south side yard setback of 6 metres for the parking garage, whereas the By-law requires a minimum side yard setback of 15 metres.

2. A minimum front yard setback of 3 metres, whereas the By-law requires a minimum front yard setback of 9 metres.

3. A height of 10.6 metres for the parking garage, whereas the By-law permits a parking garage within 20.0 metres of a residential zone to have a height of 8 metres.

4. A minimum height of 9.5 metres for the proposed youth ministry buildings, whereas the By-law requires a minimum height of 10.5 metres.

The Board so Orders.

“M. G. Somers” M. G. SOMERS MEMBER