9) The Town's Council then
discussed the subject matter of the above resolution at considerable
length. The following is an
excerpt from the verbatim minutes of the December 9, 2015 meeting of the
Town's Council (Exhibit R5).
Councillor Ogden - I will be
supporting this resolution and probably the main reason is that this
developer is a good developer and has a good track record in the Town. I
have gone door to door on other developments - notably at the Kinlock Road
and Stratford Road. I have gone door to door in those developments and the
people who live in these developments are quite happy and proud of their
town. The second reason is that this type of housing was highlighted as a
need in the housing study we had commissioned. The third and main reason
is because if there were other developments similar but there are not
development singular, right beside it or close to it. For those reasons I
will be supporting the Resolution and the main reason it meets the
requirements of the Planning Act and our requirements, in my view.
Deputy Mayor Cooper -
I also know the developer quite
well, coming from the same communities. He is a pretty good fellow, just a
few years my senior. He does good work within the Town, there is no
question. I would have to say publicly, that some would question, how some
of the developments finished out within the Town. But I think that he is
the type of person that would take the bylaws within the Town and he knows
it very well. Can take a planning design from scratch and work with land
owners. There is not a doubt in my mind that he can do a great job. We do
have a landowner who is quite familiar with the project in attendance this
evening. I feel this is the wrong location for this project. There is much
land within the Town and some would view the area around the Town Centre
is becoming congested. We do have to meet the needs, as not everyone can
live in a two story 3000 square foot home that would probably be assessed
at a half a million dollars here in Stratford. We do want to go and work
with landowners and developers as best we can on our affordable housing
initiatives. However, we are having a tough time with it in Stratford -
partly to do with the provincial and federal governments with their
initiatives and their funding toward that, because without them, it is
pretty tough. Like someone has to pay the bill. So if the Town is not
going to take it on, and the developer is not going to take it on, the
only person left to pay the bill is the new unit or new homeowner. In this
particular case I really does hope that we can come to some sort of an
agreement; but as it is presented, I just think it is in the wrong area.
It is not what I believe needs to be in the Town Hall area next to a
commercial zone. I would love to see the landowner make a presentation to
Council for rezoning and I would certainly be in support of that. I
certainly want to see development in the area. I certainly would like to
see all the land around the Town Hall with the necessary green space, but
we can have too much of it as well - and we may not all agree on that. I
don't think we can just continue in the same fashion. One thing I know
does know from the developer would be that is that this is a proposal and
maybe if it's approved, or not approved, maybe they have to go back to the
drawing board a little bit.
I know that it meets the
guidelines, I know it meets the Official Plan, I know that it meets the
Bylaw regulations, but personally I think it is a good project, in the
wrong area, and I hope, it will go back to the drawing board. Those are my
comments your Worship.
Mayor Dunphy - Thank you very
much, any other questions or comments before we move on.
I will ask for the Question.
O.K. I will ask for the question All in favor:
Councillor Griffin - Aye
Councillor Ogden - Aye
Councillor Clow - Nay
Deputy Mayor Cooper - Nay
Councillor MacDonald - Nay
What have we got here, two here
for sure, and four against, sorry. What do you vote Councillor MacLean?
Councillor MacLean - I have to
vote Aye. I will have to vote for it, it meets the Bylaw and we have the
water, the stormwater is my main concern. I don't believe that it follows
the intent. But I am...
Mayor Dunphy - voting for
Councillor MacLean - but with
Patrick's information I am voting for it.
Mayor Dunphy - so, three to
three, I get to vote now.
Councillor Griffin - right
Mayor Dunphy - so, I like some
Councillors, I do have some concerns about the project, obviously, um
there has been a lot of discussion around the table prior to this, at the
committee level. There is stormwater management issue potentially about
elevation and buffering with the Town property and other properties. Um,
um so the future of the second lot you know, what that's going to be, so
um because of the concerns that have been raised um I'm going to vote
against it as well, so motion defeated.
10) The December 9, 2015
resolution was defeated by a 4-3 vote of the Town's Council.
Later that same evening, the Town's Director of Planning emailed
Mr. MacPherson to advise him that the Town had turned down his
application, not providing any reasons for the decision but advising that
a formal letter would be forwarded the next day.
11) On December 10, 2015
MacPherson responded to the above noted email and requested minutes of the
Town's Council meeting. An
emailed reply was sent that same day from the Town's Director of Planning
advising that the minutes would be sent "asap".
Also on December 10, 2015 a letter was sent from the Town's
Director of Planning to MacPherson advising of the Town's decision and
also advising of the right to appeal to the Commission.
No reasons for the decision were stated in this letter.
12) On December 29, 2015,
the Commission received a Notice of Appeal from legal counsel for
MacPherson pertaining to the Town's December 9, 2015 decision.
13) On December 30, 2015,
the Commission requested a copy of the file record from the Town.
14) On February 1, 2016, the
Commission received an email from the Town's then legal counsel advising
that legal counsel for both parties "...are endeavouring to work with our
respective clients to resolve this matter.
As such, we would kindly ask the Commission to hold this appeal in
abeyance". The same day,
Counsel for MacPherson confirmed that the parties were discussing a
resolution and requested an abeyance.
15) The Commission granted
the abeyance after receiving assurance from both Counsel that their
clients were aware of the joint request for an abeyance.
16) On February 1, 2016
MacPherson filed an application for development with the Town.
This application (Exhibit R4, Tab 21) was for a permit for three
(3) twelve (12) unit apartment/condominium buildings on the Subject
17) On February 9, 2016,
MacPherson filed a preliminary stormwater plan with the Town (Exhibit R4,
18) During the month of
February 2016 MacPherson filed various documents filed with the Town's
staff pertaining to stormwater management, landscaping/buffering changes
to the concept plan and driveway access.
This included comments from engineering staff at the Department of
Transportation, Infrastructure and Energy ("DOTIE") with respect to the
preliminary stormwater management plan and to driveway access on
19) On February 24, 2016,
MacPherson's application for development was discussed at the Town's
Committee of the Whole meeting.
20) On February 29, 2016,
the Town's Planning Committee reviewed MacPherson's application for
development. The Planning
Committee, by a 4-1 vote, approved a recommendation that the Town's
Council approve MacPherson's application for development.
21) At the March 9, 2016
Regular Monthly Meeting of Council (Exhibit R2-Tab 5), a resolution was
put before the Council for approval of the application on the conditions
as recommended by the Town's Planning Committee for approval to be granted
for concept plan received from MacPherson to develop 36 residential
apartment style condominium units on the Subject Property subject to the
1. Conformance with the proposed
concept plan as well as all relevant Bylaw provisions.
2. Final subdivision approval
must be obtained for lot 15-2 prior to any building permits being issued.
3. A detailed servicing plan
must be submitted for approval to the Stratford Utility Corporation.
4. A detailed stormwater
management plan must be prepared by a qualified engineer and approved by
both the Town of Stratford and the Department of Transportation,
Infrastructure and Energy, (DOTI it should be (TIE).
5. All other relevant provisions
of the Town of Stratford Zoning and Subdivision Control (Development)
Bylaw are met.
22) The Town's Council then
discussed the above resolution at considerable length.
The following is an excerpt from the verbatim minutes of the March
9, 2016 meeting of the Town's Council (Exhibit R2-Tab 4):
Mayor Dunphy - just back to
Councillor MacLean's question about subdivision - this is not a
subdivision approval though this is a development permit correct.
Patrick Carroll - this is a
development permit yes, sorry if I said subdivision. Final approval for
the development as well. There is always a preliminary and a final and
that is what the point is. It is to address these conditions and make sure
they are getting done. Obviously, from what you see at a conceptual stage,
things come up as you get towards the construction drawing and that's why
there is a preliminary approval and then a final approval for both
building and subdivision.
Mayor Dunphy - are we going to
review anything before we vote,
Patrick Carroll - all the
materials have been circulated in your package and there is really nothing
new from what you have been presented before, so if there are any
questions on it, I don't mind bringing anyone of them up or taking those
questions. I don't have a presentation prepared because it would be very
redundant of what you've seen before.
Mayor Dunphy - so
this is the same as it was in in December?
Patrick Carroll - it is not the
same as in December. It has the noted changes that have come up, but it is
the same overall application aside from the additional documents that we
added and the real change that you see from the concept in December is
really those landscaping elements that we were just discussing, and that
would be the only change to the conceptual part. The other part that you
requested had to do with driveway access and also with the stormwater
management plan and those have been contained within and we are satisfied
based on the technical advice we received from the Province that they are
Councillor MacLean - I still
have concerns with the stormwater plan, but that is provincial. But one
thing it will bring us that much closer to eventually having to put up a
holding pond and that will be costly, but the way the bylaw is, I will be
supporting it because this is something we have to deal with moving
forward. We can't go back and change what is in place. I believe they have
done everything to satisfy what they had to do with the present plan and
the only thing we can do is make changes moving forward.
Councillor MacDonald - I still
have a concern of at least 36 and possibly 72 vehicles exiting that
parking lot just on the turn there, so I just haven't seen the document.
Patrick Carroll - I am sorry; it
should have been circulated in your package. If it wasn't, there must have
been an error. It is a very simple one line email from the Province that
indicates there is no concern related to access on this - none. Further to
that they actually reiterated, because they provided comments at the time
of subdivision that this was all planned for, and they had planned for
that level of density - actually a little higher. So they certainly didn't
see a concern and the curve they didn't see a concern from an engineering
Councillor MacDonald - thank you
Mayor Dunphy - I may not get to
vote here, but I still have concerns regarding the stormwater management
plan - specifically the elevation of the property and where that water is
going to flow. So I certainly have some concerns about that. We have
existing residents in Stratford who were neighbours to an apartment
complex on Dale Drive and they have been negatively impacted, and I want
to make sure 100% that is not going to happen here. That's a major concern
that I have. I had in December and I have it now.
Deputy Mayor Cooper - to echo
your comments on that, we have been dealing with those stormwater concerns
in a couple of areas in the Town, but certainly one not far from the Town
Hall here now that has taken considerable time. It has been in front of us
for two years now with a proposed development next door that really needs
to be ensured by the Province that their concerns are going to be
mitigated once and for all from stormwater management. When a large
project like this does go forward, and especially a project like this
which is at the higher elevation these folks will most certainly be
satisfied from a stormwater management plan, but as has been communicated
and with the new roof lines, the new amount of pavement within that, I
really think we're going to be in to work across on the other side of
Shakespeare sooner than later, and we do have future development within
the Town next to our current detention/retention area. As that increases
it will probably increase give less developable land going forward. My
comments are the same. I know the gentleman personally who is proposing
the project; he has done some tremendous work within the Town. I think a
couple of his projects in terms of the layout I don't necessarily agree
with, but I wasn't on Council at the time to bring the concerns forward,
or maybe get justification on why things happened the way that they did.
There is not a doubt in my mind that the buildings would be constructed
professionally, and likely aesthetically pleasing and visually it looks
pretty good in the renderings.
Deputy Mayor Cooper - as our
last two or three surveys commented our residents would not be in full
support of a project like this taking place in its current location. There
are lots of areas in the Town that could use this type of development and
I would personally, although it is only a personal comment, see that being
more of a commercial zone even though it is TCMU. That is the type of
development that would be more cohesive within the area, and our residents
have spoken to say that is what they want to see from the Town Hall
southeast. That is what they would like to see happen with that land. Now
we only have so much control over what takes place when projects come
forward, and if we are going to be spending time and money to go out and
get information and comments from our residents then I think that
information needs to be passed along.
I didn't support the development
in the first place and I certainly have concerns about the stormwater
management from the beginning and I still have concerns about the
stormwater management. Can they make it work - certainly if they do things
right, but there are a couple very close to here that are messed up
already and it is going to be hard to get those back. So unless the
Province who approves these storm water management plans does a better job
of what the expectations are from engineers and developers, we could
create another situation down the road. I hope we don't, but it is
Councillor Ogden - I would just
like to point out that this stormwater management plan, as you have
pointed out, is approved by the Province and stamped by a professional
engineer and it complies with the zoning as it exists now for that piece
of property. I would suggest if we are going to approve development within
the Town, we should look at making sure we follow the law as it is, and if
we look at changing the law we should do that before reacting to a
proposal from a very good developer who has a good track record within the
Town. Who employs - with this project would bring close to 200 new people
to the Town, the tax base, millions of dollars in investments in jobs -
with the loss of the Home Hardware and recently the loss of farm equipment
operation. This is much needed in the Town for employment and for
development and it will be a positive thing for the Town and I think it
complies with all the bylaws - zoning and planning requirements, as well
as being recommended by the planning board - which includes residents of
our Town and when we made a conscious decision to have them represent the
citizens. I know the survey may have something - I am not familiar with
exactly what you are referring to, but there may be some discussion about
the kind of developments within the Town. We do have a core area plan that
indicates that we need density for the long term sustainability of our
sewer and water infrastructure. We can't all have single family dwellings,
so I would suggest that if we are going to look at changing our zoning for
this parcel, we should have done it before this development came forward,
or negotiated with the developer to try to have it on another location,
but I think that we are going to follow the law, we have to approve this
application and I will be supporting it.
Mayor Dunphy - Just for
clarification, at this point in time, do we have the detailed stormwater
management plan completed by the Province and approved by the Town?
Patrick Carroll - yes we do for
this site, it is the one included in your package.
Mayor Dunphy - that's for the
Patrick Carroll - yeah it is,
that's the parcel. Oh, you do mean the larger area itself, the watershed?
Mayor Dunphy - where the water
Patrick Carroll - Orooba, is
working on that (provincial official) and that relates to the subdivision
application, and it will be required that all things be addressed if
anything comes up, and most of that relates to the climate change issue.
They are not expecting to question the engineering numbers they worked
with except for those that may relate to climate changes, precipitation
changes and the like. Essentially, that will have to happen before final
subdivision approval happens. It will have to be addressed. Now, I
couldn't tell the Province to do it right away. She did say they are
working on it and it will get to us as soon as it is prepared.
Mayor Dunphy - so we are going
on subdivision here today?
Patrick Carroll - no.
- you said before that subdivision approval.
Patrick Carroll - yes because
there is a concurrent as noted at previous meetings. There is a concurrent
subdivision approval held by the current land owner and it is not going to
be approved because there is no sense of the subdivision, if the
development itself cannot go ahead. So essentially, we would be creating
lots that there wouldn't be a proposed development for in the core area.
So that is why they are being held.
Mayor Dunphy - so just to
confirm the stormwater management plan that Orooba is working on is not
complete yet, is that correct?
Patrick Carroll - that is for
the entire watershed and it is only to adjust the numbers based on that
entire agreement of the whole watershed. We do not expect any issues that
would relate to this particular site. If so it is compelled on the
Province to bring that up. They didn't indicate that, as you have seen
from their comments.
Mayor Dunphy - so in the case of
the Dale Drive development would they have approved that?
Patrick Carroll - I was not
working here at the time, but I do understand that there were actual
construction related provincial investments that did not occur along the
Trans Canada Highway (TCH) that led to this problem. I don't understand
that it had anything to do with the Dale Drive Development itself. That's
what I have been told from a technical perspective. You may know
otherwise, but I'm not sure why no one brought me up to speed on that.
What I was indicated that it was a provincial investment that lead to the
Dale Drive stormwater management issues, as well as lack of requirement
for stormwater management planning in the history of things which is
consistent with most areas and essentially it caused a problem and the
problem needs to be addressed by an investment by the Province to address
that level of a ditch. To be very practical I bike by it all the time, if
you go and look at the Coast Guard property water does not pass that site.
Deputy Mayor Cooper - to follow
up on that. That is what we are talking about when it comes to stormwater
management. I do agree with you Councillor Ogden when you talk about
management plans being drawn up by qualified individuals, stamped and
approved. I'm referring to is subdivision approval that was granted
preliminary approval two years ago and is still currently being held up
because of the stormwater management plan. I don't want to put words in
your mouth your Worship but that's the concern I have when we start
talking about a stormwater management plan, and the Dale Drive subdivision
is a constant issue. The Province hasn't fixed it and they stamped the
drawings. I fail to see the relevance that we can just assume that the
Province is going to do a good job, with a qualified engineer either on
staff, or sub-contracted out to a reputable company, probably on the
Island. That we can just assume that it is going to be right. Because a
development down there is totally being held up, not because of economic
sustainability, it's being held up because of stormwater management plan
and the tremendous increase in dollars that it is going to take on the
investments of the developer, which they have agreed to. I think the
holdup is the Province because they haven't done anything with that yet.
They certainly may do that in the future but that's what it is all about.
There is a very good development similar to what we are talking about
here, it is a good development by a great contractor that we feel will
have issues, and I personally feel that they will have issues with the
development very soon; if not prior to completion, very soon after, if
some work is not done. That is perceived by me, that's not actual I don't
have actual documents to say that is what is going to take place. But they
can't clean up there mess within 700 meters of the proposed development,
so I don't see it being that much different.
Patrick Carroll - to clarify the
difference between an investment in stormwater management and stormwater
management planning. No one has ever indicated to me that there was an
error of stormwater management planning along Dale Dr. there were [issues]
before Stratford was Stratford there were issues where developments went
on and there was no stormwater management plan and there certainly a lack
of investment from the Province on that particular part of stormwater flow
in the Town. I do understand that it was a lack of investment not an error
of planning. I think that is an important point to understand. As I
understand it, the investment in stormwater management plan has been held
up from discussions on the Mason Road/Dale Drive intersection. It is an
investment according to the Province they are waiting to get through that
process before they make any investment in the stormwater. As I understand
it, it wasn't an investment in stormwater management planning. It is
actually an investment that just hasn't happened for a number of reasons.
Deputy Mayor Cooper - That is
quite possible on some facets when it might pertain to planning here
within the Town, but made no mistake that there was what I consider a good
development of those new apartments and whether they turned into
apartments or condos that are down there now. There are two new buildings
adjacent to the Dale Drive area and they had minimal water concerns before
those two structures were put in place. And now they float, basically
float, I've seen it and some have rivers behind their homes, some has
small streams in their basements and that was after development. So, we
have met with the Province, we've heard their take on that they would be
more than happy to participate down there and get things done. The
probably is, there was a development that took place, that Council of the
day considered a good development, the residents that live in those
apartments think that it's a great development and it took place. I will
tell you that the neighbours don't think it was. They have been
drastically impacted by development in that area. I agree, they will say
well we are waiting for a desired plan of action at the Mason Road/Dale
Drive area. Well, we would have signed that off long ago here. As
indicated to us, we are a partner in that. You correct me if I'm wrong
Your Worship, but we are only a partner in our opinion, because we don't
have anything to do with the planning and the infrastructure or the
investment of anything that happens in terms of the realignment of the
Trans Canada Highway in that area.
Patrick Carroll - as I
understand it, we actually had a report done to access what the safety
issues were that the Province had indicated. So, essentially as I
understand the holdup is that we actually did research that contradicted
what the Provinces research indicated and we are currently working through
Deputy Mayor Cooper - Oh, we
certainly did on the placement of a new signalized intersection or round
about. No question, we were involved with that.
Patrick Carroll - My
understanding that was the holdup. I don't see that as a planning issue,
as much as it is an investment issue that relates to another site and I
still can't see what the connection to that is to Marshall.
Deputy Mayor Cooper - When you
say planning, do you mean our planning department?
Patrick Carroll - No the
planning that is going on along the roads. Essentially, as we know we are
relying on the engineers once again in the Province, because we don't have
that technically capacity. We do have a role in the planning that and we
are part of the reason that it's not completed, because we are looking at
other issues that the Province has to consider.
Deputy Mayor Cooper - I think
that the Dale Drive issue was planned and not executed and we are bearing
the brunt of that and our residents of the Dale Drive area are being
impacted greatly. We talk about property values and what buildings are
going to look like next to us and who is going to be coming in, what type
of building it is going to be, what is the color of the roof. But, I will
tell you when a development happens and all of a sudden you go from having
issues, water issues related to your property based on a storm water
management plan that was put together and wasn't executed. If I was a
resident there I would be going a little bit farther that they probably
are now. The only thing that is holding them back is the fact that there
is a subdivision approval granted for the adjacent property, which may
mitigate their water issues. But the holdup is the stormwater management
Patrick Carroll - As I
understand it, the stormwater management plan isn't holding it up from a
conceptual phase any longer, although it did, since I've been here in
April, essentially the developer was required to consult with the
community because he wanted to make some changes. That is what held it up
this year. He is required to construct the entire stormwater management
pond very similar to the one that's going to be required on the file that
we are actually considering tonight. It essentially the same type of
structure and the stormwater management planning that was done ahead of
time on the Kel-Mac lands that we are considering tonight was never done
on Dale Drive. It is being done now at the expense of the developer, being
Southside Greens. They are installing that as part of the development to
address an issue that in the case of this file, has been addressed ahead
of time through the work done with Kel-Mac and CBCL. So, from a planning
perspective we look at what is going on with this file to be a great
improvement on what was done on the Dale Drive side and we certainly
didn't see a reason to fault this particular file for things of the past.
Deputy Mayor Cooper - Bottom
line with Dale Drive, it was planned and it wasn't executed and the
stormwater management plan of this here approval will not affect the
development that's going to happen on the property, it will affect the
Patrick Carroll - And in this
case it could affect the wildlife population, we well, this is a very
substantial feature and it is something that when it hits 60% developed
the Town is on the hook, so is the Province and they are the main funder
and the developer as well. And they cannot proceed with development pass
the 60% mark unless they build that structure to its design guidelines.
So, I have no reason to believe, that there is a reason question what's
going in this situation. Because, as I understand it the things that need
to be there, will be there and I can see why everyone is getting concerned
in this phase because the development, and we understand it, is above the
45% mark. I don't know the exact figure but we are closing in on that 60%.
You are certainly correct that stormwater management issues could become a
problem, if they don't move forward and implement that plan. I just have
no reason to believe that it will not happen.
Deputy Mayor Cooper - that's a
fair statement. We have lots of evidence within the Town where planning
was done well both from our planning department, the Province and other
avenues with qualified engineers, with stamped documents that were never
Patrick Carroll - you are
entirely correct. Actually the problem is not the plan but the
Mayor Dunphy - the issue, that I
personally have this particular development is based on history, we have
had history in the Town, and not very far from this proposed development -
Dale Drive, and that was done very recently. We had a stormwater
management plan in the Town at the time and it had a very negative impact
on a lot of people in the area. If anyone has gone door to door in this
area they know. When we went through the Southside Greens/Smallwood
property development and that was the number one issue. The number one
issue was stormwater.
Patrick Carroll - but it's the
same watershed. The Dale Drive watershed is what Southside Greens is.
Mayor Dunphy - yes, but
Southside Greens is not going to fix the Dale Drive issue. It is two
Patrick Carroll - we understand
the investment in the TCH ditch along in front of the Coast Guard...
Mayor Dunphy - the question is.
The Dale Drive two apartment buildings were built there and caused a lot
of negative impact on neighbouring properties.
Patrick Carroll - It's important
to know what technical input you are using there, because I certainly
don't have any of that information.
Mayor Dunphy - you go door to
door tomorrow and you will find out. We have lots of anecdotal data, word
of mouth, whatever you want to call it. There is water in people's
basements after development there, so drawn your own conclusion there.
Patrick Carroll - I can't make
Mayor Dunphy - I certainly have,
so we have concerns and we have raised it. We have raised particular
concerns about this project. This is not the first that you have heard it
tonight. We have had these issues before. So, obviously there are not
addressed sufficiently, in my opinion, and I guess my opinion does count
sometimes. We will see if it does tonight or not. Whether I get to vote or
not - if I get to vote then I don't support it. I didn't support it in
December and I don't support it now. That is for a stormwater management
issue. It may well be fine, and it may be approved tonight, I don't know
but at some point in time someone has to make a decision and we have to
better information, I feel myself personally, from the Province, to insure
that this project and any future development in the area does not
negatively impact any neighbours be it the Town Hall or whoever it is in
the area. That's my concern.
Councillor MacLean - we have had
a lot of discussion on the past development and bringing it forward to
this and as Councillor Ogden said, we should follow the bylaw. There are
reasons people can appeal these decisions and it because if a contractor
or developer follows the bylaw the way it is written a Council cannot vote
against it. If you do, there are a lot of case studies saying that Council
will get turned down and the reason is not always because you don't like a
certain development. Prejudice can also come into a Councillor's decision
if you are not following the law. There is a regulation and you have to
follow it. I do have concerns about the stormwater. But we don't have the
ability or an engineer here to deny it. It goes to the Province. I said
the last time I have a concern with it, I still have concern that the
Town's going to have to pay for the pond, but I don't see anything here
where Marshall came in with a plan that wasn't hitting everything in our
Bylaws. As a Council we have to make these decisions beforehand, not
should, I believe we have to. I believe it is a risk not to vote in
Mayor Dunphy - are you ready for
All in favor [two said Aye]
Contravened? [two said Nay]
Tie vote I vote, I oppose, as
23) The verbatim minutes
thus record that the Town's Council defeated the March 9, 2016 resolution
by a 3-2 vote, with the Mayor voting to break the tie.
24) On March 11, 2016, the
Town's Director of Planning sent a letter to MacPherson advising of the
Town's decision and the right to appeal (Exhibit R 2-Tab 3).
This letter stated the following reasons for the decision:
There were a number of reasons for
the decision, including concerns regarding: Traffic volumes resulting from
the development and nearby curve; The elevation of the development; The
flow of stormwater from the development, including the effect upon
neighbours; The management of stormwater within the watershed area;
Consistency with the priorities identified in the commitments from
residents surveyed within the Town; and related subdivision not yet
approved. We do note that this
is only a brief summary of the lengthy discussion by Council about your
25) On March 17, 2016, the
Commission received a Notice of Appeal from legal counsel for MacPherson
pertaining to the Town's March 9, 2016 decision.
26) On March 22, 2016, the
Commission advised counsel for both parties that hearing dates of April 26
and 27, 2016 were available.
27) The Commission heard
both appeals at a public hearing on April 26 and 27, 2016.
Counsel for MacPherson and counsel for the Town
filed their written submissions on May 4, 2016.
2. Testimony & Discussion
29) MacPherson presented
three witnesses: Marshall MacPherson, Chad MacCallum and Donald Hickox.
30) The record shows that
MacPherson had a plan of survey for the Subject Property prepared on
August 7, 2015 and that in mid-September, 2015 MacPherson commenced
discussions with the Planning staff at the Town regarding the proposed
development. The record also
shows that there was a great deal of contact between MacPherson and the
Town Planning staff during the months of October and November, 2015.
31) Marshall MacPherson, the
owner and President of Marshall MacPherson Ltd., gave evidence that his
company has built over 200 apartment / condominium type units and some 150
single family homes. He
testified that he has an agreement of purchase and sale with Kel-Mac to
purchase the Subject Property, conditional on receiving a development
permit for the project under appeal.
32) Mr. MacPherson testified
that he re-arranged his initial design in consultation with the Town's
planning staff. On December
10, 2015, he received a letter advising him that the Town had denied his
request to develop 36 units on the Subject Property.
Mr. MacPherson noted that this letter, signed by the Town's
Director of Planning, did not provide reasons.
Mr. MacPherson testified that he appealed the Town's decision.
His lawyer then entered into discussions with the Town's legal
representative with a view to resolving the matter.
He stated that he hired Chad MacCallum, P. Eng. to prepare a
stormwater management plan to address the Town's concerns.
He also stated that he worked with Kevin Reynolds, the Town's
Development Officer, on a landscaping and buffering plan.
33) Mr. MacPherson further
testified that no problems were identified by the Town's planning staff.
His application for development went before the Town's Council on
March 9, 2016 where it was defeated 3-2 with the Town's Mayor breaking the
tie. He received a letter from
the Town dated March 11, 2016 which gave a list of reasons for the denial.
He stated that he does not know why his application was denied,
given that the Province had no concerns about ingress and egress and given
that a stamped stormwater management plan was filed.
34) Chad MacCallum, a civil
engineer with the firm SCL Engineering (2005) Inc., presented his
curriculum vitae (Exhibit A4) to the Commission.
He gave evidence that he has substantial experience in municipal
engineering, including the design of subdivisions, preparation of site
plans and preparation of stormwater management plans.
Following some initial questions on his education and professional
experience, the Commission accepted Mr. MacCallum as an expert witness on
stormwater management planning.
35) Mr. MacCallum testified
that he was engaged by MacPherson to prepare a stormwater management plan.
He discussed the matter with an engineer with DOTIE.
He noted that a stormwater management plan is designed to specific
requirements. The preliminary
stormwater management plan he prepared (Exhibit R4, Tab 10) is based on
collecting stormwater and taking it to the stormwater ditch along the
right of way. He noted that
stormwater may also be retained in a pond.
He could also design a stormwater management system which would
retain water and gradually discharge the water.
He noted that the comments provided by the DOTIE engineer would be
incorporated into the final stormwater management plan.
36) Donald Hickox, a sales
representative for Kel-Mac Inc., gave evidence that there is an agreement
of purchase and sale between Kel-Mac and MacPherson.
He testified that on September 30, 2015 he met with the Town's
Deputy Mayor and Councillor Clow.
Mr. Hickox testified that the Deputy-Mayor informed him that the
Town was interested in the Subject Property but was not prepared to pay
market value. Mr. Hickox
stated that he was blindsided and taken aback and had never had a town
official speak to him in this manner.
Mr. Hickox stated that he advised the Deputy Mayor that others had
an interest in the property. He then advised that there were further discussions about other land owned
by Kel-Mac that the Town might be interested in acquiring.
Sometime later he had a meeting with Councillor Griffin and Mr.
Carroll and the matter of the Town purchasing the Subject Property was
mentioned by Councillor Griffin.
37) Counsel for MacPherson
filed detailed written submissions which were received following the
conclusion of the public hearing.
Counsel also made oral submissions at the hearing; the highlights
of which may be summarized as follows:
The Responded failed to follow
the Town of Stratford Zoning & Subdivision Control (Development) Bylaw
#29 (the "Bylaw") as the development proposed by MacPherson for the
Subject Property is an as-of-right use within the current TCMU zone.
As part of the February 1,
2016 application for development, MacPherson addressed three concerns
raised by the Town; namely, stormwater management, traffic / access on
to Shakespeare Drive and landscaping / buffering.
MacPherson filed a preliminary stormwater management plan
prepared by an experienced civil engineer, the Province of Prince
Edward Island had no concerns with respect to traffic or access and
the landscaping and buffering was revised in consultation with the
Town's planning staff.
Section 4.18 of the Bylaw does
give the Town the discretion to refuse to issue a permit if the
specified criteria are met, but only if these specified criteria are
met. Counsel submitted
that these criteria must only be applied in the presence of objective
supporting evidence. Under
cross-examination, the Town's Director of Planning was unable to
identify any empirical evidence to support the application of the
criteria set out in section 4.18.
MacPherson's application to
develop the Subject Property conforms with the Town's Official Plan,
Bylaw, and policies. The
Town's Planning Committee recommended that MacPherson's application be
There is evidence to suggest
that the Town was interested in the Subject Property for its own use.
38) Counsel for MacPherson
submitted that the Town's Council did not follow its own process and
procedure as the application for development filed by MacPherson was a
permitted use in the TCMU zone and there was no objective evidence to
support the application of section 4.18 of the Bylaw.
MacPherson's application for development must be approved
as-of-right and therefore the appeal should be allowed and the Town's
The Town's Position
39) The Town presented one
witness; Patrick Carroll, the Town's Director of Planning.
40) Patrick Carroll has been
the Town's Director of Planning since April 2015.
He has a Master's degree in Planning.
Prior to April 2015, Mr. Carroll was employed by the Province of
Prince Edward Island as a land use planner for six years.
Prior to that time and while he was completing his education, he
had worked for the Province for one year.
He gave evidence that MacPherson's proposal was first raised in
August 2015. At first there
was not enough detail to the proposal.
The original proposal consisted of three (3) structures on lot 15-2
and four (4) structures on lot 15-1 for a total of 84 units in seven (7)
41) Mr. Carroll stated that
the Subject Property is zoned TCMU with permitted uses including single
family residential, row house, town house, apartments and apartments with
commercial on the first floor. The Subject Property is in the Town's core area and is located adjacent to
the Town's Town Hall.
42) Mr. Carroll testified
that the Town had previously conducted a residents' survey and received
1100 responses. Of these 1100
responses, 20 responses had complaints concerning apartment developments.
43) Mr. Carroll explained
that the Town's planning staff reviewed MacPherson's initial concept,
considering the Official Plan, Bylaw and core area guidelines.
The usual process is that planning staff makes a recommendation to
the Planning Committee and the Planning Committee makes a recommendation
to Council. On November 9,
2015, Planning Committee recommended approval with conditions.
At that point in time, the proposal was still for 84 units.
Concerns were raised with respect to appearance of the front of the
building, accessibility for seniors and the possibility of a better use
for the land. Planning staff
raised these concerns with MacPherson and MacPherson decided to revise the
project to a 36 unit proposal.
44) Mr. Carroll noted that
MacPherson filed revised renderings of the project and the matter
proceeded before Committee of the Whole on November 30, 2015 with the
discussion continuing to the next meeting of Committee of the Whole on
December 8, 2015. The proposal
was reviewed by Planning Committee on December 7, 2015.
At Committee of the Whole, discussion ensued with respect to
stormwater management, buffering and landscaping, loss of additional land
for the Town Centre, public use of land and lighting.
45) Mr. Carroll stated that
Councillor Griffin and he met with Mr. Hickox on December 8, 2015.
The purpose of the meeting was to get confirmation on whether or
not the land was available for purchase by the Town.
Mr. Carroll said that he noted the file that this issue was no
longer a concern after the December 8, 2015 meeting because Councillor
Griffin did get a clear answer from Kel-Mac Inc. that the land was spoken
46) Mr. Carroll testified
that when the proposal was presented as a resolution to Council on
December 9, 2015, the resolution was lost on a tie break vote by the
Mayor. Mr. Carrol stated that
based on his experience with other development files where Planning
Committee had recommended approval, he had expected Council to approve the
proposal and was surprised that Council voted against the resolution.
47) Mr. Carroll stated that
following the filing of MacPherson's appeal of the December 9, 2015
decision, a discussion took place between the Town's Chief Administrative
Officer Robert Hughes ("CAO"), the Town's lawyer Perlene Morrison and
himself. Three primary
concerns were identified, specifically: stormwater management, safety of
driveway access and landscaping / buffering with respect to adjacent
parcels. Ms. Morrison
contacted MacPherson's legal counsel to see if there was interest in
discussing a possible resolution.
MacPherson agreed to work with the Town to resolve the matter.
48) Mr. Carroll stated that
on February 1, 2016 MacPherson filled a formal application for
submitted a preliminary stormwater management plan which conformed with
the Bylaw requirements and the plan was forwarded to an engineer with the
Province's DOTIE for comment. The DOTIE engineer also confirmed in an email that the driveway access was
safe. Planning staff discussed
the matter of landscaping and buffering with MacPherson and a revised
concept plan was provided.
49) Mr. Carroll stated that
MacPherson's application was discussed at the February 24, 2016 meeting of
the Town's Committee of the Whole.
Discussion then ensued as to whether the watershed group should be
consulted. It was decided that
the watershed group, which is an advisory body dealing with watershed
matters in general, would not be consulted as it would not be appropriate
to bring that group in on this type of an application.
MacPherson's application went to Planning Committee on February 29,
2016 where it was recommended for approval.
50) Mr. Carroll referred to
the verbatim minutes of the March 9, 2016 meeting of Council (Exhibit R6).
He noted that he was present at this meeting and most of the
matters raised had been discussed at previous meetings.
Council discussed remaining concerns about the stormwater
management plan. Mr. Carroll
noted that there was general discussion about watershed planning in
general, stormwater problems in the Dale Drive area, which is in a
different area of the Town, and a concern that previous developments where
the Province gave its technical input and signed off did not go well from
a stormwater management approach.
The Mayor and Deputy Mayor expressed the view that it was difficult
to put a lot of trust in Provincial assessment of stormwater management
based on past history. One councillor also raised a concern about traffic
and safe access. The
resident comments came up very briefly but that aspect wasn't elaborated
on. The landscaping revisions
did not come up as a remaining concern.
The March 9, 2016 resolution concerning MacPherson's application
was denied by another tie-break vote.
51) In dealing with the
formal letter of March 11, 2016 to MacPherson advising that the Council
had voted against its application (Exhibit R4-Tab3), Mr. Carroll stated
that the reasons for the rejection of the proposal were just a listing of
all concerns mentioned at the meeting and that they were put in this
letter because they had been raised at the meeting.
52) On cross-examination Mr.
Carroll was referred to the Planning Committee Minutes of November 9, 2015
(Exhibit R3), Mr. Carroll stated that the recommendations from Planning
Committee setting out the five conditions for the approval of the
application were standard conditions.
In reference to the Planning Committee Minutes of January 11, 2016
(Exhibit R4-Tab 25) Mr. Carroll noted that the concerns raised by Deputy
Mayor Cooper were not, in his professional opinion, viable or valid
reasons to deny a permit under the bylaw.
53) Mr. Carrol was referred
to the Minutes of the Planning, Development & Heritage Committee of
November 9, 2015 (Exhibit R3-Tab 19).
In particular Mr. Carroll was referred to comments by Deputy Mayor
Cooper. The Minutes read:
"Deputy Mayor Cooper noted that he
cannot support the development.
He explained that the Town is trying to negotiate with Kel-Mac to
purchase a piece of land beside the Town Hall.
A meeting is scheduled with Kel-Mac, Councillor Griffon and
Patrick, the concern is that approval of the subdivision and development
[MacPherson application] may limit these negotiations."
54) Mr. Carroll, upon
questioning, stated that it was his professional opinion that this was not
a valid reason to deny the application under the bylaw.
55) Mr. Carroll was also
referred to an email forwarded to representatives of Kel-Mac and to
MacPherson dealing with the Town's interest in purchasing additional land
for the Town Centre and for expansion (Exhibit R3-Tab 14).
Mr. Carroll noted that this email arose directly as a result of
MacPherson's application for subdivision and a desire to have all parties
discuss the matter. He further
advised that this email, to his knowledge, was directed to be sent by Town
56) Mr. Carroll was referred
by legal counsel from MacPherson to the Committee of the Whole Minutes of
December 8, 2015 (Exhibit R3-Tab 7), where Mr. Carroll explained the
application for development by MacPherson, the rights of Council in
dealing with the application under the bylaw and the fact that Planning
Board recommended approval of the application as "it meets the bylaw".
Mr. Carroll was questioned about comments in the Minutes with
respect to Mayor Dunphy and Deputy Mayor Cooper and the purchase by the
Town of the land that is the subject of MacPherson's application.
Mr. Carroll confirmed that the Mayor and Deputy Mayor saw the
Subject Property as a possible public acquisition for the Town.
Mr. Carroll stated that the Councillors must put those things "out
of sight" and "can't let these distractions become the attention".
He stated that the decision on the application "must be based on
its merit - must be based on fairness and that the considerations with
respect to the purchase of the Subject Property by the Town could put the
Town in a conflict of interest".
57) On further
cross-examination, Mr. Carroll was asked to deal with the three specific
issues that came up, namely: stormwater management, buffering and
landscaping, and access and egress.
Mr. Carroll stated that the plan prepared by SCL Engineering showed
that there would be no problem in dealing with stormwater.
With respect to buffering and landscaping, he noted that MacPherson
had dealt with all of the issues to the Planning Department's
satisfaction. With respect to
access and egress, he stated that the Province had signed off on the
subdivision, dealing with leveling and grading, access and egress, and
provided approval for this type of development.
The Planning Committee noted that the use, density and parking as
proposed by MacPherson was within the bylaw requirements.
On further questioning, Mr. Carroll stated that the reasons that
were set out in the formal letter noting of the rejection by Council were
not really reasons, but simply a list of all of the concerns that had been
raised by the Councillors at that meeting.
On questioning he agreed that the issue with respect to traffic
that might result from the development was an issue that was already
answered and it was not a problem that still needed to be resolved.
Mr. Carroll stated on questioning that he agreed there was no
evidence of any problem with the subdivision stormwater management plan.
Mr. Carroll stated that there was
no evidence that the development would create a hazard or would injure any
adjoining or other property. On cross-examination Mr. Carroll stated that the application as filed by
MacPherson met all of the requirements of the bylaw.
He confirmed that in his professional opinion Council does not have
the right to look at external factors.
He stated that although Council may make a determination based on
its opinion, Council's opinion and ability to turn down such an
application is limited to the specific provisions as contained in the
58) Under questioning from
the Commission's Chair, Mr. Carroll indicated that a stormwater management
plan for the entire subdivision, from which the Subject Property was
created, had been approved and was accepted by Council a number of years
ago, likely before the current Mayor was elected.
There was also a subdivision road agreement which went with it that
the Province holds and it essentially lays out who is going to pay for
what in terms of the roads and it references this stormwater management
plan specifically. Issues
concerning a watershed in another area of the Town were causing concern
among the elected officials and creating a sense of a lack of trust but
this is a different area which, as Mr. Carroll understands it, "does not
drain from here to there".
addition, "that other area did not have a watershed level stormwater plan,
it was never done, this is actually a rather new thing".
Later in his testimony under questioning from Town's Counsel, Mr.
Carroll confirmed that the stormwater management plan for the subdivision
dated back to February 2002.
59) Also in response to
questioning from the Commission Chair, Mr. Carroll stated that he believed
the Town's councillors understood the concept of an as-of-right
application and they were aware that MacPherson's application was an
as-of-right use and a permitted use.
Mr. Carroll noted the comments made by Councillor MacLean and
Councillor Ogden who made it clear that was how they assessed it.
60) Mr. Carroll stated that
to the best of his knowledge there was no evidence before him or before
the Town's Council that the Province was negligent or did a poor job in
its work on stormwater management plans.
He noted that this was considered to be a strong level of planning
in that it was done well ahead of time and staff didn't find anything that
indicated a reason not to see as credible either the site level storm
water management plan or, even more importantly, the plan for the whole
watershed. Mr. Carroll also stated that Dale Drive which is in another
area of the Town and which was the subject of much discussion by the Mayor
and Deputy Mayor at the Council meeting of March 9, 2016, is a different
watershed from that surrounding the Subject Property.
61) Under cross-examination
by MacPherson's Counsel, Mr. Carroll agreed that it was not a valid legal
reason under the Bylaw to deny MacPherson's application because it was too
close to the Town Hall.
62) Counsel for MacPherson
referred Mr. Carroll to each of the criteria set out in section 4.18 of
the Bylaw. Mr. Carroll
testified that there was no objective evidence to support denial of
MacPherson's application based on the criteria set out in section 4.18.
63) Under final questioning
from the Commission Chair, Mr. Carroll agreed that the Town's Council is
required to exercise its opinion within the four corners of the Bylaw.
Mr. Carroll also stated that to deny an application, Council is
required to exercise its discretion within the parameters set out in
section 4.18 of the Bylaw.
64) Counsel for the Town
filed detailed written submissions which were received following the
conclusion of the public hearing.
Counsel also made oral submissions at the hearing; the highlights
of which may be summarized as follows:
The reasons provided in the
Town's March 11, 2016 decision letter are well supported by the
Minutes. Council discussed
the matter at length, carefully evaluated the application and
expressed concern about matters which are within Council's discretion
under section 4.18 of the Bylaw.
Council was particularly uneasy about the stormwater management
plan. Council's concerns
were not adequately addressed by the information presented to Council
and thus the application for development was denied.
Had the proposed development
been for fewer than 18 units, the matter would not need to have been
presented to Council. This
suggests that for 18 or more units a larger impact may occur and thus
the application of Council's discretion is appropriate.
65) Counsel for the Town
submitted that the Commission should give deference to the Town's
decisions, uphold the decisions and dismiss the appeals in their entirety.