Report to: Development
Services Committee Report
Date:
SUBJECT: RECOMMENDATION
REPORT
Gemcross
Developments
(ConStrada
Aggregate Recycling Facility)
Application for zoning by-law
amendment to permit the existing aggregate recycling facility for an additional
three years
ZA-08-119862
PREPARED BY: Scott
Heaslip, Senior Project Coordinator, ext. 3140
Central District
________________________________________________________________________
RECOMMENDATION:
- That the temporary zoning by-law amendment application by Gemcross Developments (Constrada Aggregate Recycling Facility) to permit the existing aggregate recycling facility at 350 Rodick Road for an additional three years, be denied.
- That staff be authorized and directed to do all things necessary to give effect to this resolution.
PURPOSE:
The purpose of this report is to provide background information regarding an application for a temporary zoning by-law amendment to permit the Constrada Aggregate Recycling Facility at 350 Rodick Road to operate for an additional three years, and to recommend that the application be denied.
EXECUTIVE SUMMARY:
Gemross
Developments (Constrada) operates an aggregate recycling facility on the east
side of
The
facility was approved by the Town in 2002 and 2005 as a temporary use, for a
period not to exceed a total of 6 years, in order to permit the owners to
generate sufficient funds to finance the clean up of the contaminated lands west of Rodick Road, facilitating the
Rodick Road and Yorktech Drive extensions.
The temporary use by-law expired on
The applicant applied for zoning by-law
amendment on
In originally approving this temporary use, the Town was clear with the applicant that it would not be supported beyond 6 years. An aggregate recycling facility is not a desirable use over the long term at this location in proximity to Markham Centre and the Highway 7 corridor, and in the context of the planned redevelopment of the general area.
With increasing traffic volumes on
Staff have been concerned from
the outset that once approved it may be difficult, if challenged, to require
this use to be discontinued once the temporary use permission has lapsed. Extending the temporary use permission beyond
the 6 years period originally agreed to by the applicant and the Town will only
increase this risk. Staff cannot
support the request to permit this use for an additional 3 years.
At the November
18, 2008
Public Meeting to consider the requested extension to the temporary use by-law,
Committee raised a number of issues and concerns. The applicant’s response to these matters is
outlined in the options/discussion section of this report. In the event that
Committee and Council were to decide to permit the requested extension to the
temporary use, an amendment to the site plan agreement should also required to
address the matters raised by the Committee at the Public Meeting.
BACKGROUND:
Site description and
area context
The subject lands have an area of approximately 3.8 hectares
(9.4 acres) and are located on the east side of
Surrounding
uses include
Official Plan and
Zoning
The site is designated
“Industrial - General Industrial” in the Official Plan. Open storage is
provided for only as an accessory use to a permitted industrial use in this
designation.
The subject
lands are zoned “Select Industrial with Controlled Storage” [M(CS)] by By-law
165-80, as amended. This zoning does
not permit the use of an aggregate recycling facility nor would it permit
the associated outside storage. The Town
approved a 3-year temporary use by-law in 2002 permitting the subject property
to be used for an aggregate recycling facility.
The temporary use by-law was renewed in 2005, and expired on
Proposal
The applicant has applied
for zoning by-law amendment, requesting that the use be permitted for a further
three years.
OPTIONS/DISCUSSION:
Aggregate recycling facility
approved in 2002 as a temporary use not to exceed 6 years.
The following excerpt from the
This site is
located adjacent to major commercial uses along Highway #7, the
However, this site
has been restricted from any redevelopment due to the site contamination. The opportunity that this temporary use /
lease arrangement provides is to permit the owners to generate sufficient funds
to finance the clean up of the lands west of Rodick Road, as well as the
management of environmental contaminants over the long term on the two eastern
parcels. In addition, the road extension
(
Past experience
with the use of temporary by-laws indicates that once approved it may be difficult,
if challenged, to discontinue the use at the end of the proposed time
frame. In some instances, applicants
have been successful in securing a permanent or extended temporary use on the
basis that if once considered appropriate, then there is an increased argument
to consider them appropriate over the long term.
In this instance,
the proposed use over the long term is clearly not appropriate in the
Town staff is
clearly supporting the proposal only on the basis of the property owner and the
applicant abiding by their commitments to the Town in regard to a limited
temporary use pursuant to the application and related submissions/commitments
and as reflected in the specific conditions of approval. These arrangements are intended to be binding
on any subsequent parties, and all corresponding agreements should be
registered on title.
Appicant committed in writing to the
Town not to extend use beyond 6 years
On
April 25, 2003 , the
Owner entered into a site plan agrement with the Town. The agreement includes a commitment to the
maximum 6 year time limit, as follows:
(zz) That the Owner and the
Applicant covenant and agree not to initiate any applications, transactions or
legal action that would seek to permit the recycling facility as a temporary
use beyond the proposed maximum six (6) year period, nor to seek permission for
the use as a permanent use.
The
The applicant
originally indicated that the site would be used for recycling purposes for a
maximum of three to six years, and has demonstrated through a lease agreement a
commitment to this time frame. Prior to
final Site Plan approval, an executed lease agreement was required,
demonstrating a maximum three (3) to six (6) year term, subject to zoning
approvals, and appropriate clauses being incorporated into the executed site
plan agreement. A copy of the executed
lease agreement was received
The use was
deemed by the Town to be inappropriate in the long term. The Town has made it clear to the property
owner and the applicant from the outset that the facility was not a desirable
use over the long term given the location of the site in proximity to
Applicant now requesting a further
three year extension
The applicant has applied
for temporary use by-law to permit the facility to operate for a further three years. This current request replaces an earlier
application in 2008 to permit the use on a permanant basis.
Aggregate recycling
facility becoming less acceptable over time at this location
The site
currently has only one access to
Subsequent
to the original approval of the facility in 2002, First Markham Centre, a
multi-tenant
industrial development with accessory retail, has been constructed directly
across
Extension beyond the 6
years originally committed to by applicant would increase risk of facility becoming permanent
Staff have advised Council from the outset that it may be difficult, if challenged, to require this use to be discontinued once the temporary use permission has lapsed.
Each successive extension to the temporary use permission strengthens the potential case for the use to be permitted on a permanent basis.
For the reasons outlined above, staff cannot support the
request to permit this use for an additional 3 years.
The Legal Services Department advises that the written commitments provided by the applicant not to extend the use beyond 6 years do not extinguish the applicant’s statutory right under the Planning Act to apply to extend the use. In the event the application is appealed to the Ontario Municipal Board, the Board would adjudicate the case based on the planning merits, and would not likely place any significant weight to the prior written commitments of the applicant.
Applicant has made
submissions regarding the issues identified by Development Services Committee
At the November 18, 2008
Public Meeting to consider the requested extension to the temporary use by-law,
Committee raised a number of issues and concerns that need to be addressed in
the final staff report, including:
·
Procedural guarantee that an application for
permanent use will not be filed in future
·
Status
of the on-site sediment control facility
·
Status of contamination on the subject property
·
Assurance that the property will eventually be
cleaned of contaminated soils (economics of environmental remediation)
·
Percentage of materials produced from the
facility (both concrete and asphalt) that is used for construction within Markham
·
Amount of truck traffic eliminated as a result
of having the facility in Markham
· Truck circulation patterns
The
applicant has responded to these concerns as follows:
- Procedural guarantees: The applicant submitted a letter
(Appendix ‘A’), which advises that “we are unable to provide such a
guarantee, although it is not our client’s intention to file such an
application at this time.”
·
On-site
sediment control facility: The applicant’s
letter advises that the design of the sediment control facility has been
approved by the Town’s Engineering Department and that the facility is ready to
be installed.
- Contamination: The applicant submitted a report from an environmental engineer (Appendix ‘B’), which advises that approximately 150,000 tones of contaminated soil would need to be removed from the site to remediate site contamination, at an estimated cost of $12,750,000.
· Truck traffic: The applicant submitted a report from a transportation engineer (Appendix ‘C’). The highlights of the report (for the year 2008) are as follows:
1. Average daily truck traffic into and out of the site ranged from a low of 70 in December to a high of 420 in June.
2. Truck movements peak mid morning and mid afternoon.
3. 67% of the vehicles are 6-axle trucks (dump trucks), 21% are larger trailer trucks and the remaining 11% are cars and pickups.
4.
47.5% of the deliveries had destinations in
5. A further analysis will be undertaken this summer of background traffic flows on the boundary roads including an examination of roadway and intersection operations with the inclusion of truck site movements.
Staff note that the written submissions provided by the
applicant do not fully provide all of the assurances requested by Committee
(i.e. procedural guarantees; assurance of future environmental remediation). The applicant should be prepared to address
these items at the Development Services Committee meeting.
FINANCIAL CONSIDERATIONS AND TEMPLATE: (external link)
Not Applicable.
ALIGNMENT WITH STRATEGIC PRIORITIES:
Not applicable.
BUSINESS UNITS CONSULTED AND AFFECTED:
The application was circulated to various departments for comment.
RECOMMENDED BY:
________________________
________________________
Biju
Karumanchery, M.C.I.P, R.P.P James Baird, M.C.I.P, R.P.P
Senior Development Manager Commissioner, Development Services
ATTACHMENTS:
Figure 1 Location Map
Figure 2 Area Context/Zoning
Figure 3 Air Photo
Figure 4 Site Plan
Appendix ‘A’ letter dated
Appendix
‘B’ letter dated
Engineering and Site Remediation Services
Appendix
‘C’ Letter dated
APPLICANT/AGENT:
MaCauley
Shiomi Howsom Limited
M6S
2C4
Tel:
416-487-4101
Fax:
416-487-5489
Email:
cheatley@mshplan.ca
File path: Amanda\File 08
119862\Documents\Recommendation Report