7. 2003 OFFICIAL PLAN APPEALS - EROSION PREVENTION
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Committee recommendations
That Council:
1. Support the policy changes
to the 2003 Official Plan proposed in Document 1 (as revised), to address
concerns related to the forest strategy, and erosion prevention and protection
of surface water quality identified by homebuilders and developers in the City
of Ottawa; and
2. Direct staff to
communicate this position to a prehearing of the Ontario Municipal Board.
Recommandations du Comité
Que le Conseil :
1. appuie les changements aux politiques du Plan
officiel de 2003 proposés dans le document revisé ci-annexé, afin de résoudre
les préoccupations liées à la stratégie forestière ainsi qu'à la prévention de
l'érosion et à la protection de la qualité des eaux de surface exprimées par
les constructeurs d'habitations et les promoteurs d'Ottawa;
2. donne instruction au personnel de faire part
de cette position à l'occasion d'une conférence préparatoire à une audience de
la Commission des affaires municipales de l'Ontario.
Documentation
1. Deputy City Manager's report (Planning
and Growth Management) dated
7 March 2006 (ACS2006-PGM-POL-0023).
2. Extract of Draft Minute, 11 April 2006.
Report
to/Rapport au :
Planning
and Environment Committee
Comité de l'urbanisme et de
l'environnement
and Council / et au Conseil
Submitted by/Soumis par : Ned Lathrop, Deputy City Manager/
Directeur municipal adjoint,
Planning and Growth Management/Urbanisme et
Gestion de la croissance
Contact
Person/Personne ressource : Richard Kilstrom, Manager
Planning, Environment and Infrastructure
Policy/Politiques d’urbanisme, d’environnement et d’infrastructure
(613) 580-2424 x22653,
Richard.Kilstrom@Ottawa.ca
REPORT RECOMMENDATIONS
That Planning and Environment Committee
recommend that Council:
1. Support the policy changes to
the 2003 Official Plan proposed in Document 1 (as revised), to address concerns
related to the forest strategy, and erosion prevention and protection of
surface water quality identified by homebuilders and developers in the City of
Ottawa; and
2. Direct staff to communicate
this position to a prehearing of the Ontario Municipal Board.
RECOMMANDATIONS
DU RAPPORT
Que le Comité de l'urbanisme et de
l'environnement recommande au Conseil :
1. d'appuyer les changements aux
politiques du Plan officiel de 2003 proposés dans le document revisé ci-annexé,
afin de résoudre les préoccupations liées à la stratégie forestière ainsi qu'à
la prévention de l'érosion et à la protection de la qualité des eaux de surface
exprimées par les constructeurs d'habitations et les promoteurs d'Ottawa;
2. de donner instruction au personnel de faire part de cette position à l'occasion d'une conférence préparatoire à une audience de la Commission des affaires municipales de l'Ontario.
EXECUTIVE SUMMARY
Assumptions and Analysis:
The City's Official Plan proposes minimum setbacks from lakes, rivers, streams and other waterbodies, where development and site alteration is not permitted. The purpose of the setback is to protect the environmental health of the waterbody as well as protect people and property from hazards associated with slopes, erosion and flooding. The report proposes a modification of these policies to allow for some flexibility in their application, in order to address appeals of these policies in the 2003 Official Plan. The proposed modification would permit the City in consultation with the Conservation Authorities to consider exceptions to the setback in certain circumstances, such as on lands adjacent to minor tributaries. Also, exceptions that would permit lot development within the setback in the rural area are also proposed. Criteria for considering both types of exceptions are proposed.
The proposed modification also proposes other changes. It introduces a reference to the City's Slope Stability Guidelines for Development Applications in the City of Ottawa, 2004 and strengthens the role of watershed, subwatershed and environmental management plans in determining setbacks. It also proposes to delete policy 2 in section 4.7.2 Protection of Vegetative Cover, since this policy duplicates policies elsewhere in the Plan regarding the City's forest strategy and anticipates the outcome of that study.
If the modifications proposed in the report are supported by City Council, staff will communicate this position to the Ontario Municipal Board. As a result, the scope of a hearing scheduled to begin May 9 may be reduced.
Financial Implications:
This report has no financial implications.
Public Consultation/Input:
Drafts of the proposed modifications were discussed with the Ottawa-Carleton Homebuilders Association and the Conservation Authorities and were circulated for comment to other land developers and the Greenspace Alliance.
RÉSUMÉ
Hypothèses et analyse :
Le Plan officiel de la Ville prévoit des marges de
reculement minimales en bordure des lacs, des rivières, des cours d'eau et des
autres étendues d'eau, où les aménagements et autres altérations des sites sont
interdits. Ces marges de reculement ont pour objet de protéger l'environnement
de ces étendues d'eau ainsi que de protéger les personnes et les biens contre
les risques liés aux pentes, à l'érosion et aux inondations. Le rapport propose
une modification aux politiques pertinentes du Plan officiel de 2003 visant à
permettre une certaine souplesse dans leur application, de façon à résoudre les
appels interjetés à leur sujet. La modification proposée permettrait à la Ville
d'envisager, de concert avec les offices de protection de la nature, des
exceptions aux marges de reculement dans certains cas, notamment sur les
terrains situés en bordure d'affluents secondaires. Des exceptions visant à
permettre l'aménagement de lots à l'intérieur de marges de reculement dans le
secteur rural sont également proposées. Des critères d'examen de ces deux types
d'exceptions sont également formulés.
La modification proposée prévoit
aussi d'autres changements. Elle ajoute un renvoi aux lignes directrices de
2004 de la Ville sur la stabilité des pentes relativement aux demandes
d'aménagement de même qu'elle renforce le rôle des plans de gestion des bassins
et sous-bassins versants et de l'environnement dans la détermination des marges
de reculement. Il est également proposé de supprimer la politique 2 contenue à
la section 4.7.2, intitulée Protection de la couverture végétale, du Plan
officiel de 2003, étant donné que cette politique fait double emploi avec des
politiques énoncées dans d'autres parties du Plan concernant la stratégie
forestière de la Ville et anticipe le résultat de cette étude.
Si le Conseil municipal appuie les
modifications proposées dans le rapport, le personnel fera part de cette
position à la Commission des affaires municipales de l'Ontario, ce qui pourrait
réduire la porté d'une audience prévue pour le 9 mai.
Répercussions financières :
Le présent rapport n'a pas de répercussions
financières.
Consultation publique / commentaires :
La version préliminaire des modifications proposées a
fait l'objet de discussions avec les représentants de l'Ottawa-Carleton Homebuilders Association et des offices de
protection de la nature de même qu'elle a été soumise pour commentaires aux
autres promoteurs immobiliers et à l'Alliance pour les espaces verts dans la
capitale nationale.
BACKGROUND
In the course of addressing certain appeals of the 2003 Official Plan, city staff have worked with appellants on modifications to the Plan that would address the appellant's concerns while maintaining Council's policy on the matter. This report proposes such modifications to policies on the required setbacks from streams and other waterbodies. These policies were appealed by rural and urban land developers and were also of concern to the Ottawa-Carleton Homebuilders Association. Staff agreed with their position that greater flexibility was required in these policies to set reasonable and appropriate setbacks from waterbodies. If the policies proposed in this report are supported by Council, staff will ask the Ontario Municipal Board to consider including them in the Plan through a modification. As a result, the scope of a hearing scheduled to begin May 9, 2006, may be reduced.
The Ottawa-Carleton Homebuilders, Minto and Tartan have substantially withdrawn on their appeals of the 2003 Official Plan in anticipation of a resolution of their concerns with setbacks and other matters. They will be continuing to work with staff on a review of urban land requirements in 2008. Del Corporation, Brookfield Homes and Sunset Lakes Development Corporation have appealed all or part of the current policies on setbacks and have also reduced the scope of their appeals in various matters following discussions with staff.
The Official Plan contains policies on establishing setbacks required from rivers, lakes and other waterbodies, where development and site alteration may not occur. The setback is created in order to ensure the environmental health of the waterbody as well as to protect individuals and property from potential damage from erosion, slope and flood hazards. These policies are applied in the review of development applications in the urban and rural areas and in each area, must respond to a variety of circumstances. For example, development proposals adjacent to creeks with incised banks generally need to address matters of slope stability and erosion control, whereas development proposals adjacent to creeks with shallow banks generally need to respect the flood plain. In both cases, fish habitat must be protected and streamside vegetation maintained to buffer impacts from runoff and maintain water temperature.
As a general approach in the Plan, the setback is defined by layering the requirements arising from various criteria--i.e., flood plain, erosion control, access to an unstable slope, protection of fish habitat--and selecting the greatest setback.. Minimums are also set: 30 metres from the normal high water mark or 15 metres from an existing top of bank. Watershed, subwatershed, and environmental management plans provide the most comprehensive analysis of setback requirements, taking into account the characteristics of the stream channel, ecological functions, and the cumulative effects of proposed development. The setback is implemented for individual properties as part of the development review process.
City staff agreed with the Ottawa-Carleton Homebuilders Association that the current policies in the Plan require clarification and do not provide sufficient flexibility to address the variety of circumstances where setbacks must be defined. In particular, the policies may require too large of a setback than is needed to meet environmental and other objectives in certain circumstances, particularly when considering minor, man-made or natural watercourses with limited ecological function. Further, flexibility with respect to lot creation within the setback in the rural area is also warranted. Thus, the proposed modifications seek to provide exceptions regarding the size of the setback and lot creation within the setback in the rural area, and criteria for determining when such exceptions may be considered by the City in consultation with the Conservation Authority.
The modification in Document 1 attached proposes the following changes:
In addition to the proposed modification regarding erosion prevention and protection of surface water quality, the modification also proposes to delete policy 2 in Section 4.7.2 Protection of Vegetative Cover. The policy states:
"2. The requirements of the tree preservation and protection plan and a landscape planting plan may be amended upon completion of the forest strategy as described in Section 2.4.5. In particular, where forest loss occurs as a result of development, it will be offset by plantings and compensation elsewhere on the property, or through contributions to the forest enhancement program, which may include compensation on alternate sites, owned by the applicant or the City. The forest enhancement program will be implemented through guidelines to manage and protect forests."
This policy repeats provisions of policies 9 and 10 in Section 2.4.5 Greenspaces, such as the need to develop guidelines for tree planting and preservation and a policy on loss of forest as a result of development, and anticipates the outcome of a forest strategy that will include such guidelines. Community organizations, land developers and other interested parties will be consulted on the forest strategy and other work described in 2.4.5 as it progresses.
ENVIRONMENTAL IMPLICATIONS
The proposed modification ensures that the Official Plan continues to protect appropriate setbacks from rivers, lakes and streams in the urban and rural areas.
The proposed modification introduces flexibility in the creation of lots within villages and country lot subdivisions. The proposed policies will permit the city and landowners to negotiate the best configuration of lots in response to the circumstances presented in each application.
CONSULTATION
The proposed modification was discussed with the Conservation Authorities, the Ottawa-Carleton Homebuilders, and representatives of Del Corporation and Brookfield Homes. Drafts of the proposed modification were circulated to the Ottawa-Carleton Homebuilders, Minto and Tartan, as well as to the appellants Del Corporation, Brookfield Homes, and Sunset Lakes Development Corporation. No response was received following a circulation of the proposed modification to Greenspace Alliance, which had appealed other environment-related policies in the Plan.
As part of the consultation, clarification was sought regarding the need for an Official Plan amendment if an exception to a setback was requested and approved by the City in consultation with the Conservation Authority. Staff confirmed an amendment would not be required, since such an exception would be in keeping with the proposed policy in the Plan.
One appellant stated the City should not be seeking setbacks from roadside ditches and asked for an exemption for certain municipal drains. Staff responded that the policies are not applied to ditches and noted that the proposed modifications provide for consideration of alternative setbacks for municipal drains, where these can be considered as minor tributaries. Staff also noted that where municipal drains provide fish habitat, a setback is required to protect that habitat and comply with the federal Fisheries Act.
Staff agreed with the land developers generally that the determination of setbacks is complicated and that the definition of "minor tributary" is challenging. Staff propose to develop a guideline on how to implement the setback policy in consultation with the industry, environmental groups and other interested parties later in 2006.
FINANCIAL IMPLICATIONS
There are no financial implications of this report.
SUPPORTING DOCUMENTATION
Document 1 Proposed modification to Section 4.7.3 Erosion Prevention and Protection of Surface Water
DISPOSITION
Planning and Growth Management will communicate Council's position to the Ontario Municipal Board at a future pre-hearing.
Planning and Growth Management will prepare Watercourse Setback Guidelines to assist with implementing the policy.
1. Delete policy 2 in Section
4.7.2 Protection of Vegetative Cover and renumber the policies
accordingly. Policy 2, proposed for
deletion, is as follows:
“2. The requirements of the tree preservation and protection plan and a landscape planting plan may be amended upon completion of the forest strategy as described in Section 2.4.5. In particular, where forest loss occurs as a result of development, it will be offset by plantings and compensation elsewhere on the property, or through contributions to the forest enhancement program, which may include compensation on alternate sites, owned by the applicant or the City. The forest enhancement program will be implemented through guidelines to manage and protect forests.”
2. Delete the preamble and policies 1 to 5 in section 4.7.3 Erosion Prevention and Protection of Surface Water, and replace them with the following:
Policies
1.
Except as otherwise provided for in this
section, Council will establish minimum setbacks from rivers, lakes, streams
and other watercourses in watershed, subwatershed and environmental management
plans and in these plans identify any additional studies needed to refine the
setback through the development review process as well as any site-specific
measures needed to protect the setback.
2.
Where a Council-approved
watershed, subwatershed, or environmental management plan does not exist, the
minimum setback will be the
greater of the following:
a)
Development limits as established by the
regulatory flood line (see Section 4.8.1);
b)
Development limits as established by the
geotechnical limit of the hazard lands;
c)
30 metres from the normal high water mark of rivers, lakes and
streams, as determined in consultation with the Conservation Authority; or
d)
15 metres from the existing top of bank, where
there is a defined bank.
3.
No site alteration or development is permitted
within the minimum setback, except as otherwise provided for in this
section. Site alteration is defined as activities, such
as fill, grading and excavation, that would change the landform and natural
vegetative characteristics of a site. Development is defined as the creation of
a new lot or the construction of buildings and structures requiring approval
under the Planning Act or the issuance of a Building Permit under
the Building Code Act. Exceptions
to this policy are:
a)
activities that create or maintain
infrastructure within the requirements of the
environmental assessment process or works subject to the Drainage Act;
b)
alterations necessary for recreation,
environmental restoration, or slope stability works that are approved by the
City and the Conservation Authority.
4. Exceptions
to the setbacks in policy 2 will be considered by the City in consultation with
the Conservation Authority in situations where development is proposed:
a)
On existing lots where, due to the historical
development in the area, it is unreasonable
to demand or impossible to achieve minimum setback distances because of the
size or location of the lot, approved or existing use on the lot, or other
physical constraint;
b)
Adjacent
to a minor tributary that serves primarily a surface water function and
that may have only an intermittent flow.
This provision includes situations where a watershed, subwatershed or
environmental management plan exists but does not provide guidance on a minor
tributary;
c)
Adjacent
to an existing top of bank where the regulatory flood line and the geotechnical
limit of the hazard lands are within 15 metres from the existing top of bank.
5.
Where an exception to the setback is requested,
an alternate setback will be considered by the City in consultation with the
Conservation Authority on the basis of a study that addresses the following
criteria:
a)
Slope of the bank and geotechnical
considerations related to unstable slopes, as addressed in Council’s Slope Stability Guidelines for Development
Applications in the City of Ottawa, 2004;
b)
Natural vegetation and the ecological function of
the setback area;
c)
The nature of the abutting water body, including the presence of
a flood plain;
d)
The need to demonstrate that there will be no
negative impacts on adjacent fish habitat.
6.
Notwithstanding policy 3, lot creation
by subdivision may be considered which includes land within the required
setback in Villages adjacent
to a minor tributary that serves primarily a surface water function and
that may have only an intermittent flow, subject to the following criteria:
a)
Where slope stability is an issue, the lot area
outside the geotechnical limit of hazard is sufficient to meet the required
minimum lot size and Council’s Slope Stability Guidelines for Development Applications in the City of
Ottawa, 2004 are satisfied; and
b)
The lot area outside the setback is sufficient
to accommodate all structures and water and wastewater services.
7.
Notwithstanding policy 3, lot creation
by subdivision may be considered which includes land within the required
setback in the rural area outside Villages, subject to the following criteria:
c)
Where slope stability is an issue, the lot area
outside the geotechnical limit of hazard is sufficient to meet the required
minimum lot size and Council’s Slope Stability Guidelines for Development Applications in the City of
Ottawa, 2004 are satisfied; and
d) The lot area outside the setback is sufficient to accommodate all
structures and water and wastewater services.
8.
Notwithstanding
policy 3, a lot created by severance in the rural area may include land
within the required setback provided the criteria in policy 7 are
satisfied. The new lot created
by severance in the rural area should be located outside the setback to the
extent possible.
9.
Where development is
proposed on private services, no septic tank or distribution piping may be
located closer than 30 m from the normal high water mark of a river, lake or
stream or other watercourse unless an alternative setback has been permitted by
the City in consultation with the Conservation Authority, for example, as may
be required for existing lots in the rural area.”
2003 OFFICIAL PLAN
APPEALS - EROSION PREVENTION
AND PROTECTION OF SURFACE WATER, AND FOREST STRATEGY
APPELS
VISANT LE PLAN OFFICIEL DE 2003 - PRÉVENTION DE L'ÉROSION ET PROTECTION DES
EAUX DE SURFACE, ET STRATÉGIE FORESTIÈRE
ACS2006-PGM-POL-0023 CITY-WIDE / À
L'ÉCHELLE DE LA VILLE
Ms. Judy Flavin, Program Manager,
Planning Policy and Area Planning (West Unit), Planning, Environment and
Infrastructure Policy Branch, spoke to a PowerPoint slide presentation,
providing the Committee with an overview of the staff report. A copy of the presentation is held on file
with the City Clerk.
Councillor Alex Cullen questioned
Policy 6, inquiring more specifically who determines the quality of the flow of
surface waters. Ms. Flavin indicated
that staff did not want to put the onus on the applicant to say that a
tributary is dry and wanted the guidelines to provide details. In reply to the Councillor’s assertion that
this is too vague, Ms. Susan Murphy, Environmental Sustainability Division,
Planning and Growth Management, clarified that the City and the Conservation
Authorities would approve the setbacks and there are steps to go through to
address ecological creek functions.
Councillor Diane Holmes wanted to
know whether these policies are stronger or weaker in terms of protecting the
environment. Ms. Murphy stated that the
2003 Official Plan had no flexibility, whereas these policies require that
certain factors be considered when dealing with setbacks. She added that, in some cases, there is no
cause to use a 15 metre setback since a minor tributary tends to be less than
15 metres. She posited that this will
provide environmental protection and flexibility at same time.
Councillor Gord Hunter spoke about
Shirley’s Brook, noting the only reason it still exists is because it has been
dredged and is used to drain water away from farmland. If the farms disappear, and the land is
developed, it should be used as part of a sewer system. He asked whether the intent was to maintain
minor tributaries even where changes to the land area diminishes their original
function. Ms. Murphy responded by
saying that fish habitat was the primary concern: if the minor tributary
constitutes fish habitat, this policy applies and if not, the applicant can
fill it in.
Amy Kempster, Greenspace Alliance of
Canada’s Capital,
made reference to Policies 6, 7 and 8, which she opined negate all of Policy
3. She proposed that the wording
“Nowithstanding Policy 3” be replaced with: “Notwithstanding the prohibition of
development as including lot creation in Policy 3,”. Ms. Kempster said that, otherwise, Policy 3 may be interpreted as
meaning that site alteration, excavation, etc. are allowed. With regard to Policy 7, Ms. Kempster
advised that the GACC would recommend it be held pending the outcome of
hearings on country lot subdivision policies.
When asked to comment, the Director,
Development Law, Mr. Tim Marc, said staff agreed with the Greenspace Alliance
that Policy 7 will be held until hearings in July. With regard to Policies 6, 7 and 8, Mr. Marc said lot creation
was only one aspect of site alteration.
The site plan approval process would restrict any other form of
development within the setback and therefore he did not believe the change
requested by Ms. Kempster was required.
Chair Peter Hume asked for a comment
from the representative of the Rideau Valley Conservation Authority. Mr. Glenn MacDonald said these policies are
seen as a compromise about which all parties feel comfortable. He pointed out that the Official Plan will
soon be coming up for review and the issue can be re-examined at that
time. In addition, it was felt that the
old policies were too rigid and were being applied unreasonably, thus the
rationale for drafting them as they are.
Chair Hume asked for a comment on
the impact of the Committee rejecting the proposed amendments. Mr. Marc indicated that, in light of the
consultation that has taken place, this was likely the strongest position the
City can defend at the Ontario Municipal Board. He added that, in order to achieve better outcomes, direction
would have to come from the Provincial Policy Statement.
After further discussion, the
Committee considered the report recommendations:
That Planning and Environment
Committee recommend that Council:
1. Support the policy changes to the 2003
Official Plan proposed in Document 1 (as revised), to address concerns related
to the forest strategy, and erosion prevention and protection of surface water
quality identified by homebuilders and developers in the City of Ottawa; and
2. Direct staff to communicate this position to
a prehearing of the Ontario Municipal Board.
Carried with Councillors G. Bédard, A. Cullen, and D. Holmes dissenting