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1. improving the urban design of the portion of sussex
drive in front of the embassy of the united states of america améliorer
le design urbain de la partie de la promenade sussex située devant
l’ambassade des états-unis d’amérique |
That Council:
1. Approve the replacement of the barricades in front of the
United States of America Embassy on Sussex Drive with bollards;
2. Recognize these measures as a temporary encroachment under
the Encroachment By-law and that no fee be charged.
Que le Conseil:
1. D’approuver
le remplacement des barrières installées devant l’ambassade des États-Unis
d’Amérique sur la promenade Sussex par des bornes de protection;
2. De
reconnaître ces mesures en tant qu’empiètement temporaire en vertu du Règlement
municipal sur les empiètements et de ne pas percevoir de frais à cet égard.
Documentation
1. Planning and Growth Manager’s report
dated 30 March 2010 (ACS2010-ICS-PGM-0041).
2. Extract of Draft Minute, 7 April 2010.
and Council / et au
Conseil
30 March 2010 / le 30 mars 2010
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 :
John L. Moser, General Manager / Directeur général
Planning and Growth
Management/Urbanisme et Gestion de la croissance
(613) 580-2424 x 28869,
john.moser@ottawa.ca
That Transportation Committee recommend that Council:
1. Approve
the replacement of the barricades in front of the United States of America
Embassy on Sussex Drive with bollards;
2. Recognize
these measures as a temporary encroachment under the Encroachment By-law and
that no fee be charged.
RECOMMANDATIONS DU
RAPPORT
Que le Comité des
transports recommande au Conseil:
1. D’approuver le
remplacement des barrières installées devant l’ambassade des États-Unis
d’Amérique sur la promenade Sussex par des bornes de protection;
2. De reconnaître ces
mesures en tant qu’empiètement temporaire en vertu du Règlement municipal sur
les empiètements et de ne pas percevoir de frais à cet égard.
On October 30, 2001, City staff, along with representatives
from the Ottawa Police Service, met with the Royal Canadian Mounted Police
(RCMP) and representatives of the U.S. Embassy to discuss the need for upgraded
security measures for the Embassy in the aftermath of the terrorist attacks on
September 11, 2001. As a result of the
discussions, Jersey barriers were installed upon Mackenzie Avenue and Sussex
Drive on November 6, 2001, and the westerly block of Clarence Street (between
Sussex Drive and Parent Street) was changed from a two-way street to one-way
eastbound.
On April 23, 2002, the General Manager,
Transportation, Utilities and Public Works, responded to Inquiry No. TTC-03-02,
regarding the “concrete barriers [that] are blocking traffic on Mackenzie
Avenue and Sussex Drive, on both sides of the American Embassy. With respect to the legal issues surrounding
these barriers, the General Manager provided the following summary:
"…under the
Vienna Convention, the protection of embassies and consulates is a legal
obligation of the host country and is, therefore, a federal
responsibility. Further, theDepartment
of Foreign Affairs and the RCMP may unilaterally impose whatever measures they
deem appropriate in carrying out that responsibility".
On May 15, 2002, a subsequent motion by Councillor
Cullen was brought before Transportation and Transit Committee, seeking the
removal of the Jersey barriers on Sussex Drive and Mackenzie Avenue. The General Manager, Transportation,
Utilities and Public Works summarized
the legal issues further:
"However, although
the Committee may discuss the matter, because these barriers are required by
the RCMP as a means of meeting the USA security requirements, the City cannot
remove them. To do so would impinge on
the ability of the RCMP to carry out its security obligations. Therefore, the Transportation and Transit
Committee cannot direct staff to remove the barriers contemplated in Councillor
Cullen’s motion".
Council then approved the following resolution on May
22, 2002:
That Council approve:
1. That the City of Ottawa request that
the RCMP and the Embassy of the United States consult with the City of Ottawa
for the speedy removal of the barriers on Sussex Drive and Mackenzie Avenue,
and report back to committee.
2. That
Clarence Street be restored to its former two-way street status.
Through the balance
of 2002, City staff were advised that the threat to the U.S. Embassy
remained. As a result, staff initiated a
Schedule “B” Class Environmental Assessment to identify the appropriate
solution(s) for Sussex Drive and Mackenzie Avenue in the vicinity of the U.S.
Embassy. Three options were considered:
(1) Do nothing (no security measures – three
lanes of traffic on Sussex Drive and MacKenzie Avenue);
(2) Increase security by using physical
measures without encroaching on the roadway (relocate Embassy, blast wall,
increase the height of the sidewalk); and,
(3) Increase security by using physical
security measures that encroach on the roadway (i.e. close the road, move the
curb line away from Embassy).
The third option provided for the continuation of the
Jersey barriers along with planters. On
January 22, 2003, Council carried the following motion:
1. The conceptual design for Mackenzie
Avenue and Sussex Drive in the vicinity of the Embassy of the United States of
America, as shown in Annex 3 (Drawing # 020766-PH6).
2. That staff undertake the detailed design
and begin construction of the recommended design, once funds for this have been
identified.
The costs for the planters, including engineering
costs, were paid by the Government of the United States. The planters were in place by the fall of
2004. Subject to further direction from
Council, the conceptual design as
outlined above continues to be the Council approved position with respect to
the matter of the Jersey barriers on Mackenzie Avenue and Sussex Drive.
In 2009, As part of the ongoing Sussex Drive
rehabilitation project, staff identified an opportunity to improve the public
realm from a urban design perspective in front of the Embassy.
As a result of discussions with the Ward Councillor,
RCMP, U.S. Embassy, and National Capital Commission, guidance was sought from
Trasportation Committee, and at their meeting of December 2, 2009 the following
direction was given to staff:
That Transportation
Committee recommend Council direct staff to continue discussions with all
responsible parties to eliminate or reduce the negative impact of the security
barricades on Sussex Drive with the objective of re-establishing some traffic
on the west lane, and specifically to:
a. Confirm specifics related to the works that
would be required to replace the barriers with bollards;
b. Determine the costs associated with these
additional works;
c. Determine funding sources and/or cost sharing
to undertake the additional works; and
d. Report back to Transportation Committee as
soon as these determinations are made to allow Transportation Committee to give
consideration to the incorporation of the replacement of the barriers with
bollards as part of the Sussex Drive reconstruction project.
This motion was
approved by Council on December 9, 2009.
Following
the direction given by Council staff undertook to meet with the RCMP, NCC, and
the U.S. Embassy, and as a result of these discussions, have satisfied the
Council direction in the manner set out below:
a. Confirm specifics related to the works that would
be required to replace the barriers with bollards and report back to
Transportation Committee
Both the United States of America Embassy and the RCMP
have confirmed that a protected perimeter is still needed on Sussex Drive and
Mackenzie Avenue in light of their assessment of security requirements.
Correspondence to this effect is on file in the General Manager, Planning and
Growth Management office and available for Members of Council if they wish to
review.
The RCMP have advised that several embassies in Ottawa
(e.g. France, Japan, Kuwait, Russia, Saudi Arabia, South Korea, South Africa,
Ukraine, United Arab Emirates) have the benefit of permanent secured
perimeters. In those cases however,
there is sufficient land which forms part of the embassy to permit the
perimeter to be located with the confines of the property of the foreign
mission. The location of the U.S.
Embassy does not permit such a security perimeter to be erected upon its lands.
Both the Embassy and the RCMP recognize that the
City’s Sussex Drive reconstruction project presents an ideal opportunity to
re-establish this perimeter in a way that enhances the streetscape and is
consistent with the City’s urban design goals for this distinctive street. From
the City’s perspective, ensuring that the safety and well-being of both Embassy
officials and business owners and residents in the vicinity of the Embassy is
of utmost importance.
Through technical discussions, the City, the NCC, the
Embassy and the RCMP have concurred on a replacement of the security
perimeter’s Jersey barriers by bollards built to specifications that match the
particular security needs of the Embassy. This includes hydraulic bollards at
the entrance and exit of the protected lane to allow access for utility and
Embassy vehicles. Access to the protected lane will be coordinated with the
Embassy as part of the security protocols that all parties agree to observe.
The replacement of Jersey barriers with security
bollards will leave sufficient space on the reconstructed Sussex Drive roadway
to also permit the establishment of a dedicated bicycle lane along the east
side of Sussex Drive, where none currently exists. This is a major step in
improving the cycling facilities along Sussex Drive, which will be enhanced by
further improvements to cycling facilities further down Sussex Drive scheduled
to be completed in 2011.
Furthermore, the protected lane behind the bollards
will be reconstructed as a wider sidewalk and will be able to function as
pedestrian space when not required for access by Embassy or utility vehicles.
As such, it may receive ornamental features such as planters, benches and other
street furniture to animate the space.
It is recommended that these measures continue to be
recognized as a temporary encroachment until such time that the Embassy no
longer requires them. Staff do not recommend collecting an encroachment fee in
recognition of the special and important role the City of Ottawa has in
providing a safe environment for embassies and adjoining residential and
commercial properties. In reviewing the only other example of a temporary
encroachment by an Embassy, being the sidewalk barricades erected by the
British High Commission, a fee was not charged.
If the City did pursue a charge for the temporary
encroachment or pursue a road closure, the City could be at risk of
expropriation by the Federal Government which would be to the City's detriment
in terms of the loss of value of the infrastructure under this portion of
Sussex Drive at present and should the Embassy ever relocate.
b. and c. Determine the costs associated with these
additional works and determine funding sources and/or cost sharing to undertake
the additional works.
It has been determined that the costs of these works is approximately $2 million. As the lead federal entity responsible for the logistical needs of embassies in Ottawa, the National Capital Commission has applied to and has received funding to complete these works from the Federal Government’s Stimulus Fund in the amount of $2.5 million. The Government of the United States of America will be contributing $500,000 towards the project and the City of Ottawa will be contributing $125,000 recognizing the value the City will receive through renewed utility infrastructure from a lifecycle perspective. The Infrastructure Services department will undertake this work within the Council approved budget envelope for this project. The remaining funds have not been allocated but could potentially be directed towards modifications to the barricades on the Mackenzie Avenue side of the Embassy.
There are no rural implications related to this report.
Consultation was undertaken with the Ward Councillor, the Chair of Transportation Committee, the Royal Canadian Mounted Police, the National Capital Commission, Infrastructure Canada, and the Embassy of the United States of America in the preparation of this report.
The Ward Councillor is in support of the recommendations as set out in this report.
In general, there are no legal/risk management
implications to this report.
However, while the legal advice outlined above that
was provided on April 23rd, 2002 and May 15th, 2002 was correct (i.e. with
the full exercise of its constitutional authority, the Federal Government could
achieve the result of having Jersey barriers or bollards installed in what had
formerly been a public highway without the consent of the City of Ottawa),
further examination has indicated that additional clarification of the legal
opinion was warranted.
These more detailed clarifications are outlined in Document 1 to this report. The full, supporting legal opinion by Borden Ladner Gervais is on file with the City Clerk and Solicitor’s Department. In summary, it is their opinion that only through the Federal Government expropriating the portions of Sussex Drive and Mackenzie Drive in question could they,” as-of-right” mandate the installation of Jersey barriers or bollards.
Funding for the City's contribution to this project is available in the Sussex Drive rehabilitation account.
The City will not be collecting an Encroachment fee for this work in recognition of role that the City plays in providing a safe and secure environment for its embassies and adjoining residents and businesses.
Document 1 Legal Issues – Sussex Drive and Mackenzie Avenue
The
City of Ottawa will sign a Memorandum of Understanding with the National
Capital Commission and the Government of the United States of America
(represented by its Embassy) to establish the terms of co-operation with
respect to the successful implementation and completion of the design and
construction of the security bollards including; the terms of cost-sharing for
the project, the terms of ongoing operation, maintenance, repair and the
replacement of the hydraulic bollards.
DOCUMENT 1
LEGAL ISSUES – SUSSEX DRIVE AND MACKENZIE AVENUE
In
light of the history of this matter, the City Clerk and Solicitor requested
that Borden Ladner Gervais provide a legal opinion with respect to the issues
concerning the ability of the Federal Government to mandate the installation of
security measures on Sussex Drive and Mackenzie Avenue. This detailed opinion comprised a review of
the following key questions with respect
to international law involving embassies:
1. The obligation of Canada to provide for
the safety of Embassies, High Commissions and Consulates;
2. The ability of the Federal Government
to require the use of municipal highways to provide for the safety of
Embassies, High Commissions and Consulates; and
3. The obligation of Federal Government to
compensate municipalities for use of
municipal highways where such are utilized in order to provide for the safety
of Embassies, High Commissions and Consulates.
The
result of their review can be summarized as follows.
(1) The obligation of Canada to provide for
the safety of Embassies, High Commissions and Consulates.
Pursuant
to Section 3 of the Foreign Missions and International Organizations Act,
Article 31 of the Vienna Convention on Consular Relations has the force of law
in Canada. Furthermore, Article 31
states that Canada has a “special duty” to take “all appropriate steps” to
protect an embassy from intrusion or damage.
As a result, it seems clear that the Government of Canada has a duty to
provide suitable security measures to protect the United States Embassy.
(2) The ability of the Federal Government to
require the use of municipal highways to provide for the safety of Embassies,
High Commissions and Consulates.
The
courts have interpreted Section 91 of the Constitution Act, (being the clause that endows the Federal
Government with most of its jurisdiction), as
providing a broad authority to the Government of Canada to expropriate
lands. In Munro v. National Capital
Commission, this authority was found to explicitly include the expropriation of
lands in respect of Ottawa’s role as the Capital of Canada. Further, it was held in Montreal v. Harbour
Commissioners that this federal expropriation authority included the power to
expropriate lands owned by a municipality.
As
a result, it is likely that the Federal Government would have the legal
authority necessary to expropriate municipal lands in order to meet the
obligations of Canada to provide security for an embassy.
(3) The obligation of Federal Government to
compensate municipalities for use of
municipal highways where such are utilized in order to provide for the safety
of Embassies, High Commissions and Consulates.
There
are two decisions from the Exchequer Court (a predecessor to the Federal Court)
from the 1940s which provide that a municipality is not entitled to be
compensated where a municipal street is expropriated. However, more recent decisions, including
those from the Supreme Court of Canada, suggest that these older decisions
would not be followed today. The Supreme
Court has found that a person’s property cannot be taken away without
compensation unless there is very clear statutory language to that effect.
The
fact that the an encroachment agreement was signed between the City and the
U.S. Government for the existing bollards within the sidewalk and approval of
Ottawa City Council was sought for the Jersey barriers and planters in 2003
supports the legal premise that the City continues to have authority over
Sussex Drive and Mackenzie Avenue notwithstanding the security requirements for
the U.S. Embassy.
While
the legal analysis alone claries that the Government of Canada has an
obligation to safeguard the Embassy of the United States of America, it would
appear that the Federal Government does not have the right, by virtue of that
obligation and without using its powers of expropriation, to require the City
that one lane each of Sussex Drive and Mackenzie Avenue be made unavailable to
vehicular traffic.
Should
Council wish to concur in limiting traffic on these lanes, it is entitled to do
so. However, it is recommended that
should this be the determination of Council, that the normal process be
followed for reducing the right of the public to use such lanes for common
passage. (This step may not be necessary
if the notice given prior to the January 22, 2003 meeting of Council, as is
likely the case, identified the road closure that was effectively
occurring. Staff are seeking the
advertisements that took place prior to the report’s consideration by Committee). Further, Council could seek compensation for
the loss of the use of these lanes.
Extract
of draft minute 40 7 april 2010 |
|
extrait de l’ébauche du procès-verbal 40 le 7 avril 2010 |
IMPROVING
THE URBAN DESIGN OF THE PORTION OF SUSSEX DRIVE IN FRONT OF THE EMBASSY OF THE
UNITED STATES OF AMERICA
AMÉLIORER LE DESIGN URBAIN DE LA PARTIE DE LA PROMENADE SUSSEX SITUÉE
DEVANT L’AMBASSADE DES ÉTATS-UNIS D’AMÉRIQUE
ACS2010-ICS-PGM-0041 RIDEAU-VANIER (12)
In attendance to speak to the matter were Rick O’Connor, City Clerk and Solicitor; Tim Marc, Senior Legal Counsel; Richard Kilstrom, Manager, Policy Development and Urban Design; Alaine Miguelez, Program Manager, Development Review Process (Urban) and and Ziad Ghadban, Manager, Design and Construction. Also with them was Derek Leschinsky from Borden Ladner Gervais, who provided the legal opinion. The Chair asked the City Clerk and Solicitor to provide Committee with a brief overview of the matter.
Mr. O’Connor highlighted the various reports and memos that had been provided to Council on this matter. He made note of the fact that there were four separate items this Committee was concerned about with regards to the direction of placing bollards on Sussex Drive. In particular, staff were requested to:
· confirm the specifics related to the work
· determine the costs associated with these works
· determine the funding sources
· report back to Committee when these determinations were made to allow consideration of incorporating the replacement of the barriers with bollards as part of the Sussex Drive reconstruction project.
Mr. O’Connor went on to state that the outside legal opinion confirmed that the Federal Government does have an obligation under the relevant laws to provide for the safety of Embassies, High Commissions and Consulates; the Federal Government would have the legal authority necessary to expropriate municipal lands in order to meet the obligations it has under those various laws; and, there is an obligation of the Federal Government to compensate municipalities for the use of highways, where they are utilized with regards to the safety or protection of the aforementioned facilities. He acknowledged that should Council choose to do so, it could seek compensation for the loss of these lanes.
Councillor Cullen asked what the cost would be if the City were to charge an encroachment fee? Mr. Marc responded by stating that although this is not a typical encroachment scenario, Planning and Growth Management staff suggested that the fee would be $306.00 a day. When asked if it is normal practice to charge on a yearly basis, he advised that it is the normal practice to charge by the day for temporary encroachments. The councillor inquired just how temporary the bollards were going to be at this location and Mr. Marc advised that the RCMP would make that determination.
The councillor believed the plan is for bollards that are not going be installed in a temporary fashion, i.e., they will not be easily removed and so felt it would be prudent to have an encroachment fee on an annual basis. He went on to state that if there is to be an encroachment on City land that is meant for a roadway, it would seem reasonable to allow for an encroachment fee to be imposed, as is done for similar encroachments. He remarked that the British High Commission had temporary barricades on the sidewalk, but they were moveable and also they did not affect the roadway.
Councillor Cullen inquired if there was a definition of “temporary” and Legal advised that the Encroachment By-law does not refer to a specific time limit. When asked if it would be in order for the Committee to consider an amendment to Recommendation 2 to charge for an encroachment fee, Mr. O’Connor confirmed that would be in order. The councillor indicated he had a Motion to this effect, which Councillor Bloess would be putting forward on his behalf.
Councillor Desroches supported the Federal Government’s position, but he hoped they would be fair, because for any other type of encroachment, the City would be seeking some compensation. Mr. Marc explained that this situation is almost unique in that it is for a portion of a roadway, for an uncertain duration. He explained that temporary encroachments are usually used during periods of construction, but the encroachment is limited to the duration of that period. The councillor remarked that what makes this situation unique is that it has an impact on the City in terms of access of vehicles and pedestrians. He remarked that whenever the municipality requires land for roadways or pathways, the NCC does not exempt the City from payment and the City does not have the ability to expropriate land from the Federal Government. He asked if there was a memorandum of understanding or official accord with the Federal Government that would govern the City and wondered if that was something Council should be looking at as a result of this situation. Mr. Marc explained that staff had approached the RCMP with this scenario and they indicated that for most Embassies and High Commissions, the land that belongs to them allows for the security setback. In this case however, that land is not available.
Councillor Wilkinson agreed that there should be a fee imposed for the use of the land and the costs should be borne by the Federal Government since it is actually taking the use of this part of the road. Mr. Kilstrom indicated that staff was not making any recommendation with respect to that. The councillor posited that what staff is recommending is against City policy and Mr. Kilstrom indicated that in a sense it was; however, he reiterated the uniqueness of this particular situation, as referenced earlier by Legal Counsel. And, unlike the situation where temporary encroachments for construction result in no use of the property for a period of time, the lane on Sussex Drive would be usable by pedestrians and cyclists and would therefore not be totally out of City use.
The councillor interjected that in this situation, the encroachment will more or less be permanent and therefore, it is almost like selling that piece of the land. And, every time the City takes possession of a piece of the land, or even a construction easement over NCC lands, a fee is paid to the Government of Canada. Therefore, the City should be consistent in charging them the same way that they charge the City. She did not agree with the rationale for not applying a fee and suggested staff is actually changing a policy as opposed to bringing it to Council to change.
In response to a question posed by the Committee Chair, Mr. Kilstrom confirmed that Council could waive an encroachment fee, similar to what was done with Item 12 on today’s agenda.
Councillor Bloess believed that what is being proposed with respect to the reconstruction at this location is an improvement over what currently exists in terms of the physical layout and the aesthetics. He had questions about the total cost of the project and Mr. Marc explained that funding was being provided by the City, the Federal Government and the US Embassy. There may also be some works slated for Mackenzie Avenue that is reflected in the costs. The councillor wondered why the City would have to contribute $125,000 for this and felt the only reason the work is being done is to assist the Federal Government in trying to accommodate the US Embassy. When asked if this amount had already been negotiated with the Federal Government, Mr. Ghadban explained that the existing watermain in Sussex is located under the current barrier and relocating it would allow staff easier access to it in the future.
Following on the concern raised by Councillor Bloess about the City’s contribution, the Deputy City Manager explained that in her discussions with the NCC, she made a commitment for this funding when they were preparing their application for Stimulus funding. This was based on the fact there would be some residual value for the City and she felt it was a reasonable contribution. Councillor Bloess was somewhat hesitant to commit to any money, even if there is a benefit to the City because it is based on someone else’s needs.
Councillor Bédard recognized that in an encroachment situation there is usually a benefit to the person receiving the encroachment and when they have to pay for it, he wondered if that would give them the right to limit accessibility? Mr. Marc confirmed that is a comparison the US Embassy might draw and they could make that request if made to pay. If the City imposed an encroachment fee and the Embassy refused to pay, Mr. Marc advised that the existing Council policy permits the barriers to be there and if Council directed their removal, the City could remove the barriers.
The councillor presumed that relations would be impacted between the RCMP, External Affairs, the NCC and other Embassies in Ottawa if the City recommended that a fee be charged and they refused to pay and Council were to ask that the bollards be removed. Mr. O’Connor agreed that the result would be having less than cordial relations with most of the Embassies and the Federal Government.
In response to additional questions posed by the councillor, Mr. Marc confirmed that the Federal Government, without exercising the process it would need to do, does not have the power to reinstate the jersey barriers on its own because the road is owned by the municipality. He advised that there is an existing agreement with the Federal Government (endorsed by Council in 2002), that speaks to the existing bollards on the sidewalk, but it does not speak to the jersey barriers. In January 2003, Council approved that the jersey barriers could be present, but there is no agreement associated with it. There is a draft agreement that would be signed if this report is adopted. He confirmed there was no request for an encroachment fee in 2003.
Councillor Doucet noted that the Federal Government is responsible for international relations and suggested they should be requested to pay the encroachment fee. He thought that might be the better way to go, rather than imposing an encroachment fee. Legal Counsel advised that there would be no impediment to that, but it was their opinion that Council consent and negotiate agreement with the various parties and stakeholders involved, or failing that, the Federal Government could exercise expropriation powers. The councillor suggested that the Motion be amended to request that External Affairs pay the encroachment fee.
The Chair called for questions to be closed on this matter and debate would begin on the Motion before Committee.
Councillor Cullen indicated that his Motion seeks to amend Recommendation 2 of the staff report to charge an annual encroachment fee. He explained that the City has an encroachment fee schedule by-law to receive compensation when public lands are encroached upon. What is proposed by staff would allow some movement but there would be the loss of the ability to move on the travelled portion of the roadway by vehicles. He conceded that there is a requirement to replace the jersey barriers with bollards, but the City should treat the US embassy like everyone else. He noted that the UK High Commission bollards did not impede pedestrians and there was no need to charge a fee because there was no loss of access. But in this instance, where the second line of bollards is going out on a City road, it results in the loss of a vehicle lane on an already busy street in a prime tourist area and he believed it was reasonable to get some compensation for this loss.
When asked to comment on the Motion, Ms. Schepers indicated that from a Departmental perspective, they were very deliberate in recommending that there be no fee attached to this. She reminded Committee of the number of different reasons and the ongoing relationships with the Federal Government and the precedents already set with respect to such encroachments. Also, this is an opportunity that did not exist without the Stimulus money that created an opportunity for this project and the City will get a cycling lane out of this. In terms of the other options, she offered that expropriation and completely turning over that land to the Federal Government to provide for that security, limits that land and will completely exclude it from any public uses, including utilities. Further, the staffs discussions with the Federal Government to get to where they are today has been a long, drawn-out process and she cautioned Committee members that the issue of fees was never raised with them and she would be concerned should the Motion carry.
Councillor Doucet suggested a friendly amendment to the Motion which would add: “and that the Federal Government be approached to negotiate the payment of this annual fee from the affected parties, the Government of the United States and the Government of Canada.” Councillor Cullen accepted this wording.
In speaking to the main Motion, Councillor Doucet asked how much this is worth to the City vs. how much it is going to cost the Federal Government and the US Embassy if an encroachment fee were imposed. Ms. Schepers advised that the total investment dollars for this project, which will include replacement of water mains and construction of a cycling lane, is $2M. Based on this information, the councillor changed his mind about his amendment as well as his support for the Cullen Motion.
Councillor Bédard could not support the Motion because once an encroachment fee has been paid, the payee can bar anyone from using the property. He did not want to risk having the property expropriated by the Federal Government, which is what he feared would happen if the City demanded payment for the land; the risk was not worth the fee the City would impose if the Motion was approved. He reiterated the fact that the City is actually getting that land back, because pedestrians will be able to use it, and there will be a cycling lane which the City did not have before. He encouraged members to vote against the Motion.
Ms. Schepers added at this point that that in terms of the starting point for the discussions that this opportunity came up, there was a time frame on the infrastructure stimulus funds for the City to submit the application and as previously stated, the NCC had expected the City to pay one third of the $2M price tag on this project. She made it clear that the City was not going to pay that amount (approximately $700,000).
Councillor Bloess believed that the City is in a situation where it faces a loss of property that rightfully would be used by the local residents. He offered that what staff propose in terms of the design is far better than what currently exists, but given the history of land swaps between the municipality and the NCC, he was of the opinion that it would not be unreasonable to ask the Federal Government to pay an encroachment fee. He reminded Committee that this is the same policy the City applies to small businesses and given that there is the ability to pay, it should not be of concern. He urged Committee members to support the Motion.
Councillor Desroches supported the Motion, stating that it is a question of fairness and in his experiences with the Federal Government with projects in his ward, he was not quick to characterize the City’s partnership with the NCC as being equal.
Councillor Doucet made note of the fact that at Canadian Embassies around the world, it is expected that the local government would cooperate to ensure the security of employees in those buildings. This particular situation is a price to be paid for being the Nation’s capital and there must be some give and take. He indicated that he had originally been interested in the encroachment fee proposal, but in light of the information provided by the Deputy City Manager with respect to the investment dollars that would be put into the road, while still providing some access to pedestrians and cyclists, he could no longer support the Motion.
Councillor Legendre agreed with the comments made by Councillor Doucet, adding that as the Nation’s capital, Ottawa councillors are in a privileged position and should behave accordingly. He congratulated senior staff in their discussions with the NCC.
Councillor Wilkinson supported the Motion because in this instance, it is not a question of not being able to pay for the encroachment. The Federal government should compensate the City for this property, as is done with all other encroachments.
Councillor Cullen stated that the suggestion the City is getting $2.5M worth of value is not true. He reminded Committee that taxpayers have, for more than a century, paid for Sussex and Mackenzie and they have lost that capacity and deserve compensation for the use of that property. He reminded members that the report refers to the fact that should it wish to do so, Council may choose to seek compensation for the use of the land and his Motion to charge an encroachment fee would be well within the City’s rights.
Chair McRae remarked that the City has a good relationship with the Federal Government and is the recipient of more than $120M of Infrastructure Stimulus Funding. As mentioned by staff, a precedent has been set in the Nation’s capital with respect to encroachments and Embassies, and she reminded members about what will be gained by moving forward on this. She strongly supported the staff recommendations and also congratulated staff for their efforts in working through this difficult situation.
Moved by R. Bloess
That Recommendation 2 be
amended to read:
2. Recognize these measures are a
temporary encroachment under the Encroachment By-law and that an annual fee of
$111,690 be charged (based on $306 per day).
LOST
YEAS (3): R. Bloess, M. Wilkinson, S. Desroches
NAYS
(5): G. Bédard,
J. Legendre, C. Doucet, C. Leadman, M. McRae
That the Transportation Committee recommend
that Council:
1. Approve the replacement of the barricades in front of the
United States of America Embassy on Sussex Drive with bollards;
2. Recognize these measures as a temporary encroachment under
the Encroachment By-law and that no fee be charged.
CARRIED, with S. Desroches and M. Wilkinson dissenting