4. APPEAL AGAINST ZONING BY-LAW 2008-250 - SECTION 120 - ACCESSORY SATELLITE DISH OR ACCESSORY TOWER ANTENNA IN RESIDENTIAL ZONES

APPEL DE LA DÉCISION CONCERNANT LE RÈGLEMENT DE ZONAGE 2008-250 – ARTICLE 120 – ANTENNES PARABOLIQUES OU ANTENNES-PYLÔNES ACCESSOIRES DANS LES ZONES RÉSIDENTIELLES

Committee recommendationS

That Council endorse the zoning amendment as detailed in Document 1, to resolve an appeal against the Zoning By-law 2008-250, and forward a by-law incorporating the required amendment to the Ontario Municipal Board.

RecommandationS DU Comité

Que le Conseil appuyé la modification de zonage décrite dans le document 1, afin de résoudre l’appel de la décision concernant le Règlement de zonage 2008-250, et de transmettre un règlement incorporant la modification requise à la Commission des affaires municipales de l’Ontario.

Documentation

1. Deputy City Manager's report, Planning and Infrastructure, dated 17 February 2012 (ACS2012-ICS-PGM-0056).

2. Extract of Draft Minutes, Planning Committee meeting of 28 February 2012.

Report to/Rapport au :

Planning Committee

Comité de l'urbanisme

and Council / et au Conseil

17 February 2012 / le 17 février 2012

Submitted by/Soumis par : Nancy Schepers, Deputy City Manager,

Directrice municipale adjointe, Infrastructure Services and Community Sustainability, Services d'infrastructure et Viabilité des collectivités

Contact Person/Personne-ressource : Richard Kilstrom, Manager/Gestionnaire,

Policy Development and Urban Design/Élaboration de la politique et conception urbaine, Planning and Growth Management/Urbanisme et Gestion de la croissance Élaboration

de la politique et conception urbaine

(613) 580-2424 x22653, Richard.Kilstrom@ottawa.ca

City-wide

Ref N°: ACS2012-ICS-PGM-0056

SUBJECT:	APPEAL AGAINST ZONING BY-LAW 2008-250 - SECTION 120 - ACCESSORY SATELLITE DISH OR ACCESSORY TOWER ANTENNA IN RESIDENTIAL ZONES

OBJET :	Appel de la décision concernant le Règlement de zonage 2008-250 – Article 120 – ANTENNES PARABOLIQUES OU ANTENNES-PYLÔNES ACCESSOIRES DANS LES ZONES RÉSIDENTIELLES

REPORT RECOMMENDATION

That Planning Committee recommend that Council endorse the zoning amendment as detailed in Document 1, to resolve an appeal against the Zoning By-law 2008-250, and forward a by-law incorporating the required amendment to the Ontario Municipal Board.

RECOMMANDATION DU RAPPORT

Que le Comité de l’urbanisme recommande au Conseil d’appuyer la modification de zonage décrite dans le document 1, afin de résoudre l’appel de la décision concernant le Règlement de zonage 2008-250, et de transmettre un règlement incorporant la modification requise à la Commission des affaires municipales de l’Ontario.

BACKGROUND

Zoning By-law 2008-250 was adopted June 25, 2008, and the City received 76 appeals against it, of which 16 were disqualified for not having made submissions prior to its adoption. The vast majority of appeals have been resolved, or heard by the Ontario Municipal Board. This report deals with the appeal against Section 120 - Accessory Satellite Dish or Accessory Tower Antenna in Residential Zones. The appellant is opposed to the language contained in Section 120, as it is perceived to regulate tower antennas beyond the City's jurisdiction and intrudes upon federal powers, is unreasonable, arbitrary and not necessary. This appeal has remained outstanding while awaiting the preparation of the City's Municipal Concurrence and Public Consultation Process for Antenna Systems ("Protocol").

In its document CPC-2-0-03 Issue 4 - Radiocommunication and Broadcasting Antenna Systems ("CPC") which came into effect on January 1, 2008, Industry Canada has outlined a consultation process for proponents who plan to install or modify an antenna system. Proponents must follow the default CPC consultation process unless the municipality has established its own consultation process for the siting of antennas. As detailed in the Planning Report entitled "Municipal Concurrence and Public Consultation on Antenna Systems" (ACS2012-ICS-PGM-0045), Industry Canada encourages municipalities to establish their own consultation process for the siting of antenna systems, and allows them a role in commenting on antenna system applications, but does not permit local authorities to regulate them.

DISCUSSION

There was a great deal of debate concerning the wording of Section 120, with more than 100 amateur radio enthusiasts participating in discussions with staff. Staff met with representatives of the local and regional amateur radio associations and modified the wording to accommodate concerns. During deliberations on the Zoning By-law, staff felt that there was justification for including Section 120 in the Zoning By-law and that it neither intruded into nor conflicted with federal jurisdiction. This was due to the fact that Section 34 of the Planning Act gives a municipality the authority to regulate the location of structures generally.

At the same time as the Zoning By-law was being deliberated upon, Industry Canada released the CPC which encourages municipalities to establish their own protocol.Both a mediation session and a teleconference were held with the appellant, in an attempt to resolve this appeal. It was agreed that staff would revise some of the wording of Section 120, and the appellant could submit a standard list of criteria, originally intended to be used by staff when reviewing minor variance applications, but which have now been considered in the creation of the Protocol.

During the mediation of this appeal, other departmental staff were given the direction by Planning Committee and Agriculture and Rural Affairs Committee to develop the City's own Protocol in keeping with Industry Canada's regulatory framework under the CPC 2-0-03.

In the creation of the City's concurrence and consultation process, staff considered including the matters noted in the appellant's draft list of criteria as amongst those matters that would be of interest to the City when reviewing any development proposal for residential use antenna systems.

Adopting the City's own Protocol, including general criteria for the location and siting of antennas, recognizes the City's role as a commenting body, and essentially replaces the intent of Section 120 of Zoning By-law 2008-250.

With the public review of the proposed Protocol underway, it was felt that staff were in a position to approach the appellant with a proposal to settle the appeal. The appellant has agreed to a settlement, as detailed under the "Consultation" section of this report.

It is clear that the deletion of Section 120 will satisfy the appeal and that the proposed Protocol covers the same concerns while respecting Industry Canada's jurisdiction over telecommunications. Further, the list of criteria that the appellant supplied to staff as part of the mediation process has been considered in the creation of the municipal concurrence and public consultation process. Once the Protocol is approved by Council, the City will then use a list of criteria when evaluating proposals for antenna systems. This will standardize the manner in which antenna systems will be reviewed and will provide clear direction to staff, applicants, stakeholders and interested individuals.

In addition to the recommended deletion of Section 120, additional minor amendments to Zoning By-law 2008-250 are also recommended. These include the removal of antenna systems from the definition of "utility installation", and to add a note that identifies that antenna systems are subject to the City's Protocol.

RURAL IMPLICATIONS

Both the deletion of Section 120 and the introduction of the Municipal Concurrence and Public Consultation process (under separate cover) affect all individuals and businesses regardless of location within Ottawa.

CONSULTATION

The appellant affected by the changes noted in Document 1 has been sent a copy of this report, as well as both a copy of the Planning Report Number ACS2012-ICS-PGM-0045 - Municipal Concurrence and Public Consultation on Antenna Systems, and a copy of Planning Report Number ACS2012-ICS-PGM-053 - Official Plan Amendment - Wireless Communication Facilities. All these reports will be considered by Planning Committee on the same agenda.

The appellant has signed Minutes of Settlement drafted by the City’s Legal Services.

COMMENTS BY THE WARD COUNCILLOR(S)

N/A

LEGAL IMPLICATIONS

This recommendation, if carried, will allow the resolution of the appeal of Section 120 presently before the Ontario Municipal Board.

RISK MANAGEMENT IMPLICATIONS

There are no risk implications.

FINANCIAL IMPLICATIONS

There are no direct financial implications associated with this report.

ENVIRONMENTAL IMPLICATIONS

N/A

TECHNOLOGY IMPLICATIONS

N/A

CITY STRATEGIC PLAN

N/A

SUPPORTING DOCUMENTATION

Document 1 Details of Recommended Zoning

DISPOSITION

Planning and Growth Management Department to prepare the implementing by-law and forward to Legal Services.

Legal Services will provide a copy of the implementing by-law to the Ontario Municipal Board for approval, together with a copy of this report.

DETAILS OF RECOMMENDED ZONING DOCUMENT 1

1. That Section 54 - Definitions, "utility installation" be amended by deleting the period at the end of the definition and adding the phrase "but excludes antenna systems." immediately following the words "wind turbine farm.";

2. That Subsection 55 (4) - Accessory Uses, Buildings and Structures be deleted in its entirety, and replaced with the following new 55 (4), as follows:

Section 55 (4) "Antenna systems, including satellite dishes, are not subject to the regulations of this Zoning By-law, but are subject to the City's Municipal Concurrence and Public Consultation Process for Antenna Systems.";

3. That Section 64 - Permitted Projections Above the Height Limit be amended to delete the following from the list of permitted types of projections: "television, radio or telecommunication antenna, excluding a satellite dish or tower antenna accessory to a permitted use in a residential zone (see Section 120 for provisions).";

4. That Subsection 91 (4) be amended by deleting the words 'transmission and telecommunication towers' from the sentence; and

5. That Section 91 be amended to add a new subsection (8) that would read as follows:

"(8) Antenna systems, including satellite dishes, are not subject to the regulations of this Zoning By-law, but are subject to the City's Municipal Concurrence and Public Consultation Process for Antenna Systems."; and

6. That Section 120 - Accessory Satellite Dish or Accessory Tower Antenna in Residential Zones be deleted in its entirety.