3. kennevale - settlement of ontario municipal board appeals

Kennevale – RÈGLEMENT D’APPELS INTERJETÉS DEVANT LA COMMISSION DES AFFAIRES MUNICIPALES DE L’Ontario

Committee recommendations as amended

That Council:

1. Endorse in principle a residential development on the Kennevale lands of approximately 146 townhomes.

2. Approve the payment to Strandherd Meadows Inc. of $130,000 and waives the provision of the Notice By-law with respect to amending the budget.

3. Approve the waiver of fees imposed by the City under the Planning Act for applications required for the townhome development to proceed.

4. Upon the successful completion of the road closure process, authorizes the conveyance of that portion Moffatt Pond Court required for the residential development for one dollar, subject to a restrictive covenant that the lands only being used for residential purposes.

5. Direct the City Clerk and Solicitor to request from the Ontario Municipal Board the earliest possible hearing date to resolve any hearing required to implement this settlement.

Recommandations modifieÉs DU Comité

Que le Conseil :

1. approuve en principe un aménagement résidentiel sur les terrains Kennevale, constitué d’environ 146 logements en rangée.

2. approuve le paiement à Strandherd Meadows Inc. d’une somme de 130 000 $ et renonce à la disposition du Règlement sur les avis qui concerne la modification du budget.

3. approuve le renoncement aux droits imposés par la Ville en vertu de la Loi sur l’aménagement du territoire pour les demandes exigées avant le lancement de la construction des logements en rangée.

4. au terme du processus réussi de fermeture de rue, autorise la cession, pour un montant d’un dollar, de la partie de la cour Moffatt Pond nécessaire à l’aménagement résidentiel, sous réserve d’un engagement restrictif stipulant que les terrains ne doivent servir qu’à des fins résidentielles.

5. charge le greffier et le chef du contentieux de la Ville d’obtenir auprès de la Commission des affaires municipales de l’Ontario la date la plus rapide possible pour toute audience relative à cet aménagement.

Documentation

1. City Clerk and Solicitor’s report dated 4 May 2009 (ACS2009-CMR-LEG-0014).

2. Extract of Draft Minute, 11 May 2009.

Report to/Rapport au :

Planning and Environment Committee

Comité de l'urbanisme et de l'environnement

and Council / et au Conseil

4 May 2009 / le 4 mai 2009

Submitted by/Soumis par : M. Rick O’Connor, City Clerk and Solicitor/

Greffier et Chef du contentieux

Contact Person/Personne ressource : Tim Marc, Senior Legal Counsel/

Conseiller juridique principal

Legal Services/Services juridiques

(613) 580-2424 x21444, timothy.marc@ottawa.ca

Barrhaven (3)

Ref N°: ACS2009-CMR-LEG-0014

SUBJECT:	kennevale - settlement of ontario municipal board appeals Kennevale - Settlement of Ontario Municipal Board appeals - in camera - Proposed or pending acquisition or disposition of land for the purposes of the City and SOLICITOR-CLIENT PRIVILEGE – REPORTING OUT DATE: 30 days after R*esolution of ALL matters*

OBJET :	Kennevale – RÈGLEMENT D’APPELS INTERJETÉS DEVANT LA COMMISSION DES AFFAIRES MUNICIPALES DE L’Ontario – À HUIS CLOS - ACQUISITION OU CESSION DE TERRAINS PROJETÉE OU EN COURS POUR LES BESOINS DE LA vILLE ET SECRET PROFESSIONNEL DE L’AVOCAT – DATE DU COMPTE RENDU : 30 JOURS APRÈS LE RÈGLEMENT DE TOUS LES DOSSIERS

REPORT RECOMMENDATION

That the Planning and Environment Committee refer the following recommendations to Council for consideration:

That Council:

1. Endorses in principle a residential development on the Kennevale lands of approximately 146 stacked townhomes.

2. Approves the payment to Strandherd Meadows Inc. of $130,000 and waives the provision of the Notice By-law with respect to amending the budget.

3. Approves the waiver of fees imposed by the City under the Planning Act for applications required for the stacked townhome development to proceed.

5. Directs the City Clerk and Solicitor to request from the Ontario Municipal Board the earliest possible hearing date to resolve any hearing required to implement this settlement.

RECOMMANDATION DU RAPPORT

Que le Comité de l’urbanisme et de l’environnement soumette les recommandations suivantes à l’examen du Conseil :

Que le Conseil :

1. Approuve en principe un aménagement résidentiel sur les terrains Kennevale, constitué d’environ 146 logements superposés en rangée.

2. Approuve le paiement à Strandherd Meadows Inc. d’une somme de 130 000 $ et renonce à la disposition du Règlement sur les avis qui concerne la modification du budget.

3. Approuve le renoncement aux droits imposés par la Ville en vertu de la Loi sur l’aménagement du territoire pour les demandes exigées avant le lancement de la construction des logements superposés en rangée.

4. Au terme du processus réussi de fermeture de rue, autorise la cession, pour un montant d’un dollar, de la partie de la cour Moffatt Pond nécessaire à l’aménagement résidentiel, sous réserve d’un engagement restrictif stipulant que les terrains ne doivent servir qu’à des fins résidentielles.

5. Charge le greffier et le chef du contentieux de la Ville d’obtenir auprès de la Commission des affaires municipales de l’Ontario la date la plus rapide possible pour toute audience relative à cet aménagement.

BACKGROUND

Official Plan Amendment

On 9 February 2005, City Council refused official plan and zoning amendment requests by DCR Phoenix to redesignate in the Nepean Secondary Plan and rezone lands in the area of Kennevale and Strandherd from residential to commercial, including provision for a gas station. The decision respecting the official plan refusal was appealed by DCR Phoenix to the Ontario Municipal Board (The rezoning refusal was not appealed by DCR Phoenix at that time as that would have lead to the inability to register the associated plan of subdivision).

The position of the City at the hearing was that Nepean, through its secondary plan adopted in 1999, had designated the Barrhaven Town Centre as the focus for commercial development. To the extent that other lands might be required, Nepean had also provided in the secondary plan for additional commercial lands at the intersection of Fallowfield and Strandherd Roads.

While the Board did limit the commercial site to 70,000 square feet, the Board concluded that notwithstanding the secondary plan, the site was appropriate for commercial development, there was market demand for the space and therefore approved the official plan amendment. The City sought to have the decision reviewed pursuant to the Ontario Municipal Board Act, section 43 but was unsuccessful.

Rezoning

DCR Phoenix subsequently applied for a rezoning to permit the commercial development and gas station. This rezoning was refused by Council on 11 September 2007 and was appealed to the Board. The hearing was held in August 2008 and the decision released on 27 January 2009. In light of the Official Plan policies in place as a result of the first Board decision, the second Board decision did approve the gas station and commercial zoning for the balance of the site. However, in the decision the Board imposed several limitations on the development that could take place. These include:

a) No drive through;

b) Food Store/Supermarket limited to 2295 square metres;

c) Requirement for buffer between commercial and residential development of up to 10 metres; and

d) Loading areas must be enclosed.

In addition, as part of the approval of the plan of subdivision, Moffatt Pond Court was dedicated as a street on the plan and is now within City ownership. In order for the development sought by DCR Phoenix to take place, the shopping centre developer (Trinity) would need to have a portion of Moffatt Pond Court closed and conveyed to them. While the subdivision agreement allows for the reconveyance of Moffatt Pond Court if the lands are developed for commercial purposes, it has been the position of staff that the City is not required to reconvey the lands. The Board did not make a finding on this matter but withheld its order until if and when the City reconveys Moffatt Pond Court to the developer. As such, the zoning approved by the Board is not yet legally in effect.

DISCUSSION

Subsequent to the release of the decision, discussions took place between staff and the developer’s representatives with a view to determining if there was any possibility that the developer would be willing to proceed with residential development upon the subject lands, other than those for the proposed gas station. The gas station has been conveyed to Petro-Canada, is separated by a street from the balance of the lands that were the subject of the two hearings.

With the residential zoning that was originally in place on the lands, inclusive of the parcel for the gas station, 79 ground-oriented townhomes could have been constructed. DCR Phoenix presented staff with a concept plan for 146 stacked townhomes and advised that, subject to conditions discussed below, if it were permitted to proceed with this development it would develop the lands for residential purposes.

Planning staff have reviewed the concept plan and have advised that it is generally in keep with the intent of the secondary plan for this area as it read prior to its amendment by the Board.

The conditions sought by DCR Phoenix are as follows:

1. Expedited Approval

As part of the settlement, DCR Phoenix wishes to be able to proceed with the development as quickly as possible.

The development would require an official plan amendment to the Secondary Plan to reinstate the residential designation and also would require a rezoning. The most expedited process to achieve this would be to seek a modification to the past Board decisions under the Board’s jurisdiction pursuant to the Ontario Municipal Board Act, section 43. Legal Services staff and the solicitor for DCR Phoenix are examining whether there is any precedent for the Board exercising its jurisdiction in this fashion.

Should an application under section 43 not be possible, then an official plan amendment and rezoning amendment would be brought to Committee at the earliest possible opportunity. This would likely be the July meeting of Planning and Environment Committee.

2. Conveyance of Moffatt Pond Court

The stacked townhome development will front on private streets rather than a public road. As a result, for it to proceed, there would also have to be a conveyance of a portion of Moffat Pond Court to the developer.

Legal Services has been advised by Planning staff that there are no negative impacts from returning Moffatt Pond Court and staff therefore support the conveyance. However, in order to ensure that the residential development takes place, staff recommend that a restrictive covenant be placed on title that allows only residential development on the reconveyed lands.

3. Waiver of Fees

DCR Phoenix takes the position that having paid the application fees to obtain its commercial approval, it should not have to pay fees again for a residential approval. In staff’s opinion, this request is a fair one and staff therefore support it.

A portion of the fee waiver does relate to costs that are not duplication of fees already paid (e.g. engineering review and legal agreement fees). The rationale for supporting this aspect of the fee waiver is discussed under item 4 below.

4. Reimbursement of Hearing Costs

DCR Phoenix incurred approximately $155,000 in legal and witness costs for the two hearings. Having succeeded in these hearings, it has requested that it be reimbursed for those costs.

$25,000 of the costs for the hearing related to transportation evidence. The City did not object to either the official plan nor the rezoning amendment on the grounds of transportation and therefore staff advised DCR Phoenix that they would not be recommending reimbursement of this portion of the costs.

As DCR was successful on the official plan amendment and did get a commercial rezoning (albeit with limitations sought by the City), there is some justification to reimbursing their hearing costs where the City is seeking to reinstate the residential approvals in place prior to the hearings taking place.

In addition, staff note that there are broad areas to the west and south of Strandherd which are vacant lands today and are designated in the Official Plan for employment purposes. If a significant commercial development were to be established at Kennevale and Strandherd, this could create pressure for the lands on the other side of Strandherd to permit commercial development, contrary to Council’s vision as expressed in the Official Plan.

Immediately prior to amalgamation, the lands along the south side of Innes Road to the east and west of the municipal boundary between Cumberland and Gloucester were designated for employment purposes with residential development being present on the north side, which is similar to the case today with Strandherd. The lands were redesignated in the three months immediately prior to amalgamation. These amendments by Cumberland and Gloucester were appealed to the Ontario Municipal Board. The Council of the new City of Ottawa retained a planner to review the proposed amendments and sought to have the hearing adjourned so that the new Council could make a determination if the past decisions were appropriate.

The requested adjournment was not granted by the Board and the official plan amendments were brought into force. This has lead to a substantially different development along Innes than was originally foreseen in Official Plans of Cumberland, Gloucester and the Region. To the extent that it is desired to not see a similar pattern develop along Strandherd, the payment of the $130,000 and the waiver of fees would appear to be a reasonable condition of the settlement.

CONSULTATION

The Ward Councillor is aware and supportive of this settlement.

FINANCIAL IMPLICATIONS

The Planning, Engineering and Legal fees proposed to be waived for this residential development would have been in the range of $50,000.

No budgetary provision has been included in the 2009 budget for the proposed legal fee settlement of $130,000 as recommended by this report. Based on the level of contributions to the City Wide Capital Reserve Fund and the projected commitments, the 2009 year-end balance in the Fund is forecasted to be in a $2.4 million overdraft position. The funding requirement will be drawn from the operating area resulting in an increase to the projected year-end overdraft position. The 2010 capital program will be restricted in order to re-establish a positive Fund balance.

DISPOSITION

Legal Services will continue to seek to determine from the Ontario Municipal Board is the redesignation and rezoning can be dealt with pursuant to the Ontario Municipal Board Act, section 43. If not, Planning and Growth Management will bring forward the official plan and zoning amendments for Committee and Council’s consideration. As well, Legal Services will requisition the funds for the payment of the $130,000 and Planning and Growth Management will initiate the road closing and reconveyance process.