5.             MOTION 35/14 – COMPREHENSIVE ZONING BY-LAW

 

                MOTION 35/14 - REGLEMENT GENERAL DE ZONAGE

 

 

COMMITTEE RECOMMENDATION

 

That Council direct the City Clerk and Solicitor to reimburse the applicant for the building permit for 303 Lanark for properly documented expenses directly associated with the incorrect implementation of Motion 35/14 of the Comprehensive Zoning By-law for the development (located in the area bound by Churchill North, Workman, Duchess, Kirchoffer, Atlantis and Shelby) to a maximum of $10,000.

 

 

Recommandation DU Comité

 

Que le Conseil demande au greffier municipal et chef du contentieux de vérifier les dépenses directement liées à l’erreur d’application de la motion 35/14 du Règlement général de zonage concernant le projet d’aménagement (situé dans le secteur limité par Churchill Nord, Workman, Duchess, Kirchoffer, Atlantis et Shelby) et de rembourser les dépenses appropriées.

 

 

 

 

 

Documentation

 

1.                  Corporate Services and Economic Development Committee report dated 14 December 2009 (ACS2009-CMR-CSE-0013)

 

 

Report to / Rapport au :

 

Corporate Services and Economic Development Committee

Comité des services organisationnels et du développement économique

 

and Council / et au Conseil

 

14 December 2009 / le 14 décembre 2009

 

Submitted by / Soumis par : Carole Langford, Committee Coordinator /

Coordonnateur de comité

 

Contact Person/Personne-ressource: Councillor / Conseillère M. McRae

(613) 580-2486, Maria.McRae@ottawa.ca

 

Kitchissippi (15)

Ref N°:  ACS2009-CMR-CSE-0013

 

 

SUBJECT:    MOTION 35/14 – COMPREHENSIVE ZONING BY-LAW

 

OBJET:          MOTION 35/14 - REGLEMENT GENERAL DE ZONAGE

 

 

REPORT RECOMMENDATION

 

That the Corporate Services and Economic Development Committee recommend Council direct the City Clerk and Solicitor to reimburse the applicant for the building permit for 303 Lanark for properly documented expenses directly associated with the incorrect implementation of Motion 35/14 of the Comprehensive Zoning By-law for the development (located in the area bound by Churchill North, Workman, Duchess, Kirchoffer, Atlantis and Shelby) to a maximum of $10,000.

 

 

RECOMMANDATION DU RAPPORT

 

Que le Comité des services organisationnels et du développement économique recommande au Conseil de demander au greffier municipal et chef du contentieux de vérifier les dépenses directement liées à l’erreur d’application de la motion 35/14 du Règlement général de zonage concernant le projet d’aménagement (situé dans le secteur limité par Churchill Nord, Workman, Duchess, Kirchoffer, Atlantis et Shelby) et de rembourser les dépenses appropriées.

 

 

BACKGROUND

 

At the 1 December 2009 meeting of the Corporate Services and Economic Development Committee (CSEDC), Councillor M. McRae submitted the following Notice of Motion for consideration by the CSEDC at its meeting of 19 January 2010:

 

 

WHEREAS During the Comprehensive Zoning By-law discussion, Motion 35/14 was approved by Council on April 23, 2008. Motion 35/14 provided the following direction: the Comprehensive Zoning By-law be amended for the area bounded by Churchill North, Workman, Duchess, Kirchoffer, Atlantis, and Shelby have a height limit of eight meters;

 

AND WHEREAS Motion 35/14 was specific in the defined area subject to the reduction of height, however, an error occurred by staff during implementation to incorrectly apply the zoning change;

 

AND WHEREAS Although the error was corrected through an anomaly report adopted by Council on October 8 2008, the impact of this error adversely impacted a resident who was in the process of a development application. The impact is valued at approximatly $10,000 in additional costs resulting from new architectural drawings, building in the winter months, etc;

 

AND WHEREAS While the error was inadvertant and subsequently corrected the affected applicant who was not respossible for the error and was adversely impacted should ethically not bear the financial burden resulting from this error by the city;

 

AND WHEREAS The resident affected by the incorrect implementation of Motion 35/14 resides at 303 Lanark;

 

THEREFORE BE IT RESOLVED THAT The City Clerk and Solicitor be directed to audit expenses directly associated with the incorrect implementation of Motion 35/14 for this development and reimburse the appropriate expenses.

 

In consultation with staff to clarify the intent of the motion, it has been reworded in accordance with the recommendation above.

 

Planning and Growth Management Department

 

Through the consultation process on the draft Comprehensive Zoning By-law, the various drafts indicated a maximum height for the property and lands surrounding it as 11 metres, consistent with the existing height limit of 10.7 metres under the former Ottawa Zoning By-law 93-98.  During the approval of the draft Zoning By-law by City Council on April 23, 2008, a motion was passed reducing the height for certain lands in the Westboro Beach area to 8 metres. In reflecting all the various changes to the draft Comprehensive Zoning By-law approved by City Council, staff made an error in applying the new height limit to a larger area than intended by the Council motion, including the property known municipally as 303 Lanark Avenue. The final City Council approved Zoning By-law was released on the City’s web site the first week of June 2008, and at that time already contained the error with respect to the 8 metre height limit at 303 Lanark.  The implementing by-law, By-law 2008-250, was adopted on June 25, 2008 also reflecting the 8 metre height limit. It appears that the property was purchased at least a month after the 8 metre height limit for the property had been released on the City’s web site.

 

When the incorrect height limit was brought to staff’s attention in early September, a report to correct this anomaly was immediately completed to be brought forward to the earliest available Planning and Environment Committee meeting of September 23, 2008, given the timelines for the  required statutory notification to be provided. The matter proceeded as quickly as possible through Council adoption of the amending by-law and the provision of statutory notice of passage of the By-law, with the end of the appeal period being completed on October 30th, 2008.

 

CONSULTATION

 

This item will be advertised in the local dailies as part of the Public Meeting Advertisement on Friday preceding the Corporate Services and Economic Development Committee Meeting.

 

RURAL IMPLICATIONS

 

Not applicable

 

LEGAL/RISK MANAGEMENT IMPLICATIONS

 

As noted in the response to Inquiry CSE 02-09, the responsibility of the City was to examine the basis for the rezoning which occurred and to correct any unintended changes in zoning brought about through the enactment of By-law 2008-250.  In this case, as the correct advice was given as to the zoning legally in effect, it is the opinion of Legal Services that there is no financial liability for the City.

 

 

FINANCIAL IMPLICATIONS

 

All reimbursement costs incurred with the approval of this report will be funded from the City Wide Self-Insurance account.

 

 

SUPPORTING DOCUMENTATION

 

Document 1    Motion 35-14 and Response - Assistance to a Resident Re: Application for Development Pursuant to Height Restrictions

 

DISPOSITION

 

Staff to take appropriate action as directed by the Committee.

 

Document 1

 

 

Council Member Inquiry/Motion Form

Demande de renseignements d’un membre du Conseil /Formulaire de motion

 

From/Exp. :

Councillor Leadman

 

Date :

3 March 2009

 

File/Dossier :

CSE 02-09

 

To/Dest. :

M. Rick O’Connor, City Solicitor / City Clerk

Subject/Objet :

Assistance to a Resident Re: Application for Development Pursuant to Height Restrictions Detailed in Motion 35-14

 

Motion :

 

At the 3 March 2009 meeting of the Corporate Services and Economic Development Committee, Councillor McRae submitted the following written inquiry on behalf of Councillor Leadman : 

 

During the Comprehensive Zoning By-law, Councillor Leadman brought forward Motion 35/14 at the April 23, 2008 Council meeting to direct a reduction of permitted height.  The height restrictions were adopted on June 25, 2008.

 

Councillor Leadman’s motion was specific in the defined area to which the motion applied “THEREFORE BE IT RESOLVED that the Comprehensive Zoning By-law be amended for the area bounded by Churchill North, Workman, Duchess, Kirchoffer, Atlantis, and Shelby have a height limit of eight meters. However, properties of this scope were captured by the motion.

 

This implementing error has caused hardship for one area resident who purchased a property with the intent of redeveloping to its maximum height.  At the time of his purchase, he consulted with the City and was advised of the height restrictions inp lace.  When the resident submitted his application for development a few weeks later, staff informed him of the reduction in height.  The motion should not have affected the height of his property as it was outside the specified area detailed in motion 35-14.

 

Staff recognized the error and on September 23, 2008, the height limit was corrected and the amendment was adopted on October 8, 2008.

 

This staff error and delay has caused the resident in question substantial additional costs, such as new architectural drawings, building in the winter months, etc.

 

Would Legal Services explain why it is not willing to assist the resident in question financially and/or provide the process for this resident to move forward with a request for re-imbursement of some costs?

 

 

 

 

Response/Réponse (Please prepare a response for the information of all members of Council with a copy to the Coordinator of the Corporate Services and Economic Development Committee.)  

 

The following is the chronology of what occurred in this case:

 

1.                  The final draft zoning by-law recommended by staff to Committee provides for a height limit of 11 metres in the Westboro Beach area.

2.                  April 23, 2008 - Motion 35/14 is adopted by Council during the course of the debate on the comprehensive zoning by-law.  Motion 35/14 provides that:

 

THEREFORE BE IT RESOLVED THAT the Comprehensive Zoning By-law be amended for the area bounded by Churchill North, Workman, Duchess, Kirchoffer, Atlantis, and Shelby have a height limit of eight metres

 

3.                  June, 2008 – The applicant was advised by planning staff that the zoning in effect (93 of 98 as amended) provides for a height limit of 10.7 metres with a recommendation of 11 metres in the new zoning by-law.

4.                  June 25, 2008 – The new comprehensive zoning by-law is enacted.  Through error, the height limitation of 8 metres is also applied to the area including 303 Lanark.

5.                  July, 2008 – The applicant purchases 303 Lanark.

6.                  July, 2008 – The applicant presents to staff his preliminary concept plans for the property.

7.                  August, 2008 – The applicant presents his final plans to staff at which time he is advised that the height on the property has been rezoned to 8 metres.  The applicant is advised to redesign the building to accord with this change.

8.                  August, 2008 – The applicant raises this matter with the Ward Councillor.

9.                  September, 2008 – The Ward Councillor’s office brings this matter to the attention of Planning staff and staff confirm that this property should was not subject to Motion 35/14 and the comprehensive zoning by-law should not have zoned this property to a height limitation of 8 metres.

10.              A report to remedy this situation was brought before Planning and Environment Committee on September 23, 2008 and Council on October 8, 2008.

11.              The appeal period for the resulting by-law ended on October 30, 2008 with no appeals received.

 

Through Committee and Council of the consideration of the final draft of the comprehensive zoning by-law, some 80 changes were made to the provisions of the draft by-law.  With the enactment of the new by-law on June 25, 2008, it was possible thereafter to determine the exact provisions that would apply any property in the City of Ottawa.

 

When the applicant sought his building permit, he was correctly advised as to the zoning provision in place at that date.  In order to obtain a building permit under the zoning in place, the applicant was also properly told that he would have to amend his drawings.

 

The option did exist to amend the zoning.  Subsequent to the adoption of By-law 2008-250, either as a result of appeals or through matters brought otherwise to the attention of staff, a number of unintended changes in zoning, referred to as anomalies, have been identified and corrected, without the requirement for the party concerned to file a zoning amendment application.

 

With respect to the costs incurred (stated to be approximately $10,000) by the present applicant in amending drawings to take into account the changes in the height limitation from 11 metres to 8 metres and then back to 11 metres, it is the opinion of Legal Services that the City is not liable for costs incurred by an applicant in dealing with zoning provisions lawfully in place at the time.  Rather, the responsibility of the City was to examine the basis for the rezoning which occurred and where, such as in this case, a change occurred which was not intended, to correct such change.

 

It is therefore the recommendation of Legal Services that no compensation be provided.

 

The inquiry however also requests staff to identify “the process for this resident to move forward with a request for re-imbursement of some costs”.  If, notwithstanding this recommendation, Committee wishes some re-imbursement to occur, a direction to the City Clerk and Solicitor to that effect would be in order.