1.                   review of the City of ottawa’s encroachment by-law 2003-446 as it relates to outdoor patios

 

révision du règlement 2003-446 de la ville d’ottawa sur les empiètements pour ce qui concerne les terrasses extérieures

 

 

COMMITTEE RECOMMENDATIONS AS AMENDED

 

That Council approve:

 

1.         Amendments to the separation distance approvals procedure, as detailed in Document 2, and as amended to include:

 

Any encroachment permits issued for patios within 30 meters of properties zoned for residential use include the provision that they be required to close each night by 11 p.m., and that no patrons be permitted in the area after this time.

 

2.         Housekeeping amendments to the by-law, as discussed in the report.

 

 

RECOMMENDATIONS MODIFIÉES DU COMITÉ

 

Que le Conseil approuve:

 

1.                  des modifications à la procédure d’approbation des distances de séparation, comme l’explique en détail le document 2; et tel que modifié afin d’inclure :

 

Toute terrasse située à 30 mètres de propriétés classées à usage résidentiel pour laquelle un permis d’empiètement a été délivré doit fermer au plus tard chaque soir à 23 h. Aucun client ne doit se trouver sur les lieux après cette heure.

 

2.                  des modifications d’ordre administratif à ce règlement, comme il en est discuté dans ce rapport.

 

 

 

Documentation

 

1.                  Deputy City Manager’s report dated 10 March 2011, Infrastructure Service and Community Sustainability (ACS2011-ICS-PGM-0055).

 

2.                  Extract of Draft Minutes 6 of the Transportation Committee Meeting dated April 6, 2011.


Report to/Rapport au:

 

Transportation Committee

Comité des transports

 

and Council/et au Conseil

 

10 March 2011/le 10 mars 2011

 

Submitted by/Soumis par : Nancy Schepers, Deputy City Manager/Directrice municipale adjointe, Infrastructure Services and Community Sustainability/Services d’infrastructure et Viabilité des collectivés

 

Contact Person/Personne resource:  Ermis Durofil, Program Manager

Right of Way By-laws, Permits and Inspections/Réglements, Permis et Inspections

Planning and Growth Management/Urbanisme et gestion de la croissance

613-580-2424 x 13764, Ermis.Durofil@ottawa.ca

 

City-Wide

Ref N°: ACS2011-ICS-PGM-0055

 

 

SUBJECT:

review of the City of ottawa’s encroachment by-law 2003-446 as it relates to outdoor patios

 

 

OBJET :

révision du règlement 2003-446 de la ville d’ottawa sur les empiètements pour ce qui concerne les terrasses extérieures

 

REPORT RECOMMENDATIONS

 

That the Transportation Committee recommends Council approve:

 

1.                  Changes to the provisions of the Encroachment By-law 2003-446 regarding the restructuring of fees for temporary outdoor patio encroachments as detailed in Document 1;

 

2.                  Amendments to the separation distance approvals procedure, as detailed in Document 2; and

 

3.                  Housekeeping amendments to the by-law, as discussed in the report.

 

 

RECOMMANDATIONS DU RAPPORT

 

Que le Comité des transports recommande au Conseil d’approuver :

 

1.                  des changements aux stipulations du Règlement 2003-446 sur les empiètements concernant la restructuration des redevances pour les terrasses extérieures temporaires, comme l’explique en détail le document 1;

 

2.                  des modifications à la procédure d’approbation des distances de séparation, comme l’explique en détail le document 2; et

 

3.                  des modifications d’ordre administratif à ce règlement, comme il en est discuté dans ce rapport.

 

 

BACKGROUND

 

The City receives requests for the placement of outdoor patios on municipal road allowances and, for applications that conform to by-law regulations, temporary encroachment permits are issued in accordance with the Encroachment By-law.  The purposes of the regulations are to:

 

 

At the meeting of 23 August 2010, Transportation Committee directed staff to undertake a review of the outdoor patio provisions in the Encroachment By-law, regarding the dual patio fee structure and the development of provisions to deal with applications for patios within 30m of residential zones.

 

DISCUSSION

 

Permit Fees

In 2010, the City issued outdoor patio permits for 77 locations, with revenue of approximately $634,000.  While permits are issued on an annual basis, fees are only charged for the patio season which runs from 15 April up to 30 September. The fees for temporary outdoor patio encroachments are charged on a daily basis, calculated by area of road allowance, and provide the permit holder exclusive use of the patio area.

 

The program originally provided for only one standard patio encroachment fee, which was adopted into the amalgamated Encroachment By-law from that of the former City of Ottawa. The former Municipality established the outdoor patio permit fee to be equivalent to that of a paid parking space.  However, citing additional expenses incurred by permit holders that established patios on grassed portions of City boulevards, Council subsequently approved a lower unimproved boulevard fee.  The lower fee was intended to offset the annual cost incurred for the construction and removal of a platform.

 

As a result, a dual fee structure is in place with patios constructed on grassed boulevards being charged the unimproved rate and patios installed on concrete or paved boulevards, where there is no additional requirement to construct a platform charged the improved boulevard rate.  Of the current 77 outdoor patios, four are charged the unimproved boulevard rate and, of these latter four, three are “overwintering” their patio structure despite receiving the reduced rate intended to offset the cost of construction and removal of the platform each year.

 

The overwintering provision in the Encroachment By-law allows for patio structures to be left on the road allowance over the winter season, by request.  Approval is considered where the overwintering will not interfere with snow storage or the City’s maintenance operations.  The overwintering benefit for the permit holder is the elimination of the annual costs of constructing and dismantling the patio structure. 

 

In 2008, the City’s Real Estate Services Division completed an internal market review and collected data from other municipalities in relation to vendor stand fees that included: market stands, designated spaces, paid parking, as well as temporary encroachment permit fees.  The review concluded that, although similar in some ways, other municipalities have distinct differences in levels of service, market conditions, and municipal objectives and that fees are not directly comparable.  As a test of reasonability though, fees for the use of public spaces in Ottawa are in the mid range of rental values, and are considered reasonable.

 

The vast majority of existing patios are located in the downtown area and predominantly in two wards, namely Rideau-Vanier Ward and Somerset Ward with the remaining patios, as illustrated in Table 1, almost equally distributed between Capital Ward, Kitchissippi Ward and Rideau-Rockcliffe Ward.

 

Table 1 - Outdoor Patios per Ward

Rideau-Vanier

Somerset

Capital

Kitchissippi

Rideau-Rockcliffe

45

21

5

4

2

 

Of the 45 patios located in Rideau Vanier Ward, 42 are located within, or adjacent to, the ByWard Market area.  As such, fee data for road allowance uses such as: Market Stands, Designated Space (Refreshment Vehicle) charges and paid parking rates within the ByWard Market were used as comparators to fees charged for outdoor patio permits.  Using the “RS” (Retail Space) Stand rate, or the equivalent “RK” (Refreshment Kiosk) Stand rate, the monthly fees are illustrated in Table 2.

 

Table 2 - Monthly Fee comparison*

ByWard Market Stand**

 Paid Parking

Refreshment vehicle

Outdoor Patios

$5.11/sq.ft

$5.15/sq.ft

$3.28/sq.ft

$3.34/sq.ft

* 2008/2009 rates and converted to square foot unit rate for consistency of analysis.

** not including any premium or the ByWard Market Stakeholders Association charges.

Based on a typical 176 square foot Byward Market Stand, the daily fees would be as follows:

 

Table 3 - Daily fee*

ByWard Market Stand**

ByWard Paid Parking

Refreshment vehicle

Outdoor Patios

$29.40

$29.70

$18.93

$19.36

*based on 2008/2009 rates and converted to square foot unit rate for consistency of analysis.

** not including any premium or the ByWard Market Stakeholders Association charges.

 

In the strongly competitive restaurant/bar sector, outdoor patios are much sought after by business owners.  The street presence of patios is viewed as competitive advantage by providing more options to clientele.

 

Recent applications for patio permits have highlighted that the current standard fee is not the deterrent to the establishment of new outdoor patios.  Rather, it appears that the lack of available road allowance space and the restrictive separation distance requirement from residential zones have a deterrent effect on applications.

 

In locations of limited road allowance the City has developed and will be retaining the Café Seating program.  These types of permits are available to any business that wishes to establish one or two tables with chairs.  While the serving or consumption of alcohol is not permitted, due to LLBO regulations, patrons enjoy the use of the tables and chairs, which are required to be removed nightly from the road allowance.

 

Separation Distance

In an attempt to limit the effect of noise and traffic on adjacent residents, and mirror a provision contained in the Zoning By-law, a minimum 30m separation distance requirement has been incorporated into the Encroachment By-law.  Currently, any application for an outdoor patio on road allowance proposed within the 30m separation distance is automatically rejected, as staff does not have the delegated authority to consider such requests.  Nor is there currently any formal appeal process within the By-law for any rejected applications.

 

Despite the automatic rejection by staff, 15 of the 77 currently permitted locations are within the 30m separation distance.  These applications were approved by Committee and Council through motion, brought forward by the Ward Councillor, to waive the separation provision in the Encroachment By-law.

 

Applications for proposed outdoor patios located from 30 to 90m of residential zones, in addition to meeting technical standards, are required to undergo a community circulation process.  The process involves: soliciting comments from residents, advising the Ward Councillor of the application, working with the applicant to resolve any objections, and reporting to Transportation Committee for a decision on applications where objections remain.

 

For most circulations, objections are generally related to concerns about noise, litter, loss of visibility for motorists and pedestrians, and reduced public safety.  Existing by-law provisions, along with prohibiting any form of entertainment or music within the patio area, include or provide additional measures to manage the effects of outdoor patio activity on adjacent residents, including the provision for the revocation of the permit where there are cases of unresolved noise complaints.  By-law Services currently monitors noise complaints and to date, no revocation action has been required.

 

Recommendations

 

Recommendation #1:

As the majority of patios currently pay the standard improved boulevard fee, and of the remaining four, three patios overwinter thus not incurring annual platform construction and removal costs, it is recommended that dual fee structure be eliminated and revert back to the one standard fee for all outdoor patios, currently at $1.26/m2/day.  The recommended fee is reasonable and any reduction in the standard fee could possibly set a precedent requiring the reduction in all temporary encroachment fees.

 

With the elimination of the unimproved boulevard fee, four permit holders would incur an increase in annual fees in the amount of $2,813.97, $2,156.42, $3,283.67, and $3,426.12.  It is recommended that the annual outdoor patio fees for said permit holders are “grand-parented” at a rate equivalent to an unimproved rate (i.e. approximately 43% of the standard rate) for a period of five years.  At that time, the matter will be reviewed, with the intent that the fees be reverted to the standard fee.

 

It is further recommended that a cost recovery waiver fee of $500.00 is applied to applications for outdoor patios within 90m of a property zoned for residential use.  The fee proposed reflects the additional work and costs incurred in undertaking a community circulation, objection resolution and Committee report.

 

Recommendation #2:

It is recommended that applications for patios within the 30m separation distance proceed in a manner similar to the current procedure for applications for patios between 30 to 90m of residential zones.  Namely, upon satisfying a technical review, a community notification process would be undertaken.  Should there be no objections to the application, staff would have the authority to provide waiver of Section 65 of the Encroachment By-law.  However, should objections to the application remain after the community notification and notice to the Ward Councillor, staff would prepare a report, with recommendations, to Transportation Committee.  The Committee’s decision, as it currently is with applications for outdoor patios proposed within 30 to 90m of residential zones, would be final.

 

Recommendation #3:

This report also provides the opportunity to undertake a couple of housekeeping issues related to the Encroachment By-law.  Specifically, in order to ensure the by-law reflects the present corporate structure, references to the “General Manager of the City’s Department of Transportation, Utilities and Public Works” should be changed to the “General Manager of the Department of Planning and Growth Management”.  Further the references to the “Transit Committee” should be deleted throughout the by-law.

 

Summary

The recommendations, if approved, would result in the following Encroachment By-law amendments:

 

 

CONSULTATION

 

This report has been prepared with information and advice from By-law Services, Legal Services, Realty Services, Planning and Growth Management, and City Operations.

 

The Public Works Department has reviewed the report and is supportive of the report recommendations.

 

RURAL IMPLICATIONS

 

Currently, there are no outdoor patios installed on City Road Allowance in rural Ottawa.

 

COMMENTS BY THE WARD COUNCILLOR(S)

 

Draft recommendations were circulated to all Councillors and a copy of this report was circulated to the five Ward Councillors currently with outdoor patios in their wards.

 

Councillor Diane Holmes, Somerset Ward, provided the following comments:

 

“I am concerned that the current process we have seen recently at Committee, which this report will validate, is not sensitive to the adjacent communities. This report needs to revert to our original bylaw to disallow all patios within 30 m of residential properties, but with NO appeal process.  The negative impacts to neighbouring properties outweigh the potential benefits to individual business owners.

 

If this report goes forward as outlined, it must include a provision that all patios within 30 meters of residential properties require the same 11 p.m. closure time and prohibitions regarding amplified sound as currently are practiced.

 

In addition, the process to revoke the encroachment permit must be staff delegated or if Committee’s direction is required then it must be heard by Licensing Committee which is better positioned to recognize the costs on our by-law staff of complaints against an establishment.

 

In addition, please review how the amendments in document 2, meet our privacy legislation, specifically:

66 c ) if there are objections to the proposed outdoor patio, the General Manager shall advise the applicant of the objection(s) and allow the applicant time to meeting with those persons objecting to determine if the objections can be resolved.”

 

LEGAL/RISK MANAGEMENT IMPLICATIONS

 

There are no legal or risk management impediments to the implementation of the recommendation in this report.

 

 

CITY STRATEGIC PLAN

 

N/A

 

 

TECHNICAL IMPLICATIONS

 

N/A

 

 

FINANCIAL IMPLICATIONS

 

Estimated revenues resulting from the introduction of the new Applications under Section 66 fee are unknown at this time, but are expected to be minimal. There are no financial implications associated with the remaining restructuring.

 

 

SUPPORTING DOCUMENTATION

 

Document 1    Proposed Amendments to Outdoor Patio Fees in the Encroachment By-law.

Document 2    Proposed Amendments to Section 66 of the Encroachment By-law.

 

 

DISPOSITION

 

Upon approval, the Right-of-Way By-laws, Permits and Inspections Unit of Planning and Growth Management will initiate any required changes to the Encroachment By-law.  The City Clerk and Solicitor Department will prepare the required amending by-law and place on Council’s Orders of the Day for enactment.


Proposed Amendments to Outdoor

Patio Fees in the Encroachment By-law                                       Document 1

 

Schedule “B”

 

Temporary Encroachment Fees

 

 

Type                                                    Description                                          Rate

 

 

2.         Outdoor Patio                         First time review                                 $271.00

                                                            Applications under Section 66            $500.00

                                                            Permit processing fee                          $49.50

                                                            Daily Rental                                        $1.26/m2/day

                                                            Grand-parented Daily Rentals            $0.54/m2/day

 


Proposed Amendments to

Section 66 of the Encroachment By-law                                       DOCUMENT 2

 

66.                   An application for an encroachment permit for an outdoor patio with a proposed separation of zero (0) to ninety (90) metres from a residential zone will be processed as follows:

(a)        residents and residential property owners within the ninety (90) metres distance will be notified by letter of the proposed encroachment, and provided with a copy of the proposed plans for the outdoor patio, with the following conditions:

(i)         comments from residents and residential property owners must be received by the General Manager within fifteen (15) working days of the letter’s receipt; and

(ii)               the Ward Councillor shall be informed of the application.

(b)        if no objections to the proposed outdoor patio are received, the General Manager may issue an encroachment permit.

(c)        if there are objections to the proposed outdoor patio, the General Manager shall advise the applicant of the objection(s) and allow the applicant time to meet with those persons objecting to determine if the objections can be resolved.

            (d)       on receipt by the General Manager of written confirmation from the objectors that they no longer object, a permit may be issued.

(e)        where objections remain, the General Manager shall report to the City’s Transportation Committee, which shall approve or refuse approval of the encroachment permit.

(f)        the applicant and objectors will be notified of the time and date the report is to be tabled at Transportation Committee.

                        (g)        the Transportation Committee decision shall be final.

 


review of the City of ottawa’s encroachment by-law 2003-446 as it relates to outdoor patios

révision du règlement 2003-446 de la ville d’ottawa sur les empiètements pour ce qui concerne les terrasses extérieures

ACS2011-ICS-PGM-0055                                           CITY WIDE/À L'ÉCHELLE DE LA VILLE

 

Joe Cotroneo, Pub Italia & Co-Chair, Preston Street BIA stated that the lower rate for businesses will encourage more patios to open and the net result would not be a loss in revenue for the City.  Patios encourage people to be out and about, thereby creating a nicer, pedestrian friendly environment, as well as creating employment for students working at these patios.  His written submission was distributed and a copy is held on file.

 

Councillor Holmes inquired about deferral of this matter and Ermis Durofil, Program Manager, Bylaws, Permits and Inspections advised that they would take whatever direction is given by the Committee, but noted that patio season opens in a week.

 

Charles Akben-Marchand, Centretown Citizens Community Association wanted to ensure there are proper monitoring conditions since staff have to enforce the encroachment to ensure it is not impeding pedestrian traffic.  He reminded Committee that the encroachment applies to things on the City’s right-of-way and he also wondered if any consideration was being given to providing additional parking for these encroachments.

 

Lori Mellor, Executive Director, Preston BIA was concerned that staff did not consult with stakeholders when they were preparing this policy.  She urged Committee to send staff back to consult with those who are affected by this policy.

 

Jasna Jennings, ByWard Market BIA supported deferral because of the lack of consultation.  She was concerned about the separation distance noting that none of the patios in the ByWard Market are 30 metres from residences.  She suggested the City should be careful about mixed uses and the definition between residents and residential zones.  One size does not fit all.  She wanted the City to promote exciting streetscapes and patios.

 

Chair Wilkinson read out a Motion forwarded on behalf of Councillor Holmes, the operative portion being that Document 2 be amended to include:

 

Any encroachment permits issued for patios within 30 meters of properties zoned for residential use include the provision that they be required to close each night by 11 p.m., and that no patrons be permitted in the area after this time.

 

            Councillor Holmes explained that she has been opposed to patios within 30 metres of residential properties and she hoped the Committee would agree to defer the item and take it to the businesses for comment.

 

            Councillor Deans indicated she would move deferral.

 

            Councillor Bloess inquired about the closing provisions for patios and Mr. Durofil confirmed it has always been 11:00 p.m. and what this policy essentially does is formalize that which is already in existence.  The councillor wanted to know if the fees are the right rate or if they were too high.  He wondered what latitude is available.  Mr. Durofil stated that the report is not introducing a new fee.  It is a standard fee introduced pre-amalgamation and there will be some grandfathering at the lower rate to some businesses.  He further confirmed that the higher fee had not been an issue in the past, with the exception of one BIA.  The fee would be applied to new patios.

 

            Councillor Wilkinson noted that the policy would only apply to patios on City property and Mr. Durofil confirmed that any existing patio would fall under the existing rule and closure at 11 p.m.  He confirmed that this policy strengthens what is currently being done and the patio is not to be used after 11 p.m. when they are within 30 metres of a residential zone.

 

            Councillor Deans indicated she would move deferral to the next meeting for consultation because there might be some finessing of the entire item.  She agreed the amendment being proposed by Councillor Holmes could also be deferred.

 

            Some Committee members noted that for the most part, consultation would be required as it relates to the proposed fee structure and therefore the bulk of the report could be considered and only the fee portion (Recommendation 1) be deferred, pending consultation with businesses.  The Committee agreed with this direction and the following Motions were then considered:

 

            Moved by R. Bloess

 

That deferral only apply to Recommendation 1 of the staff report.

 

                                                                                                CARRIED

 

YEAS (7):       R. Bloess, T. Tierney, M. Fleury, P. Clark, D. Thompson, S. Moffatt, M. Wilkinson

NAYS (3):      D. Deans, D. Chernushenko, B. Monette

 


            Moved by D. Deans

 

            That the item * be deferred to allow for the consultation.

 

                                                                                                            CARRIED

 

YEAS (7):       R. Bloess, D. Deans, T. Tierney, M. Fleury, D. Chernushenko, D. Thompson, S. Moffatt

NAYS (3):      P. Clark, B. Monette, M. Wilkinson

 

* referred only to Recommendation 1 of the staff report

 

            Moved by D. Deans

 

WHEREAS one of the purposes of the regulations pertaining to outdoor patios within the Encroachment By-law is to “ensure that the locations of patios fit in with the neighbourhood and do not create any unnecessary disruptions”;

 

AND WHEREAS a common condition of patios within 30m of residential areas is that they close at 11:00pm ;

 

THEREFORE BE IT RESOLVED that Document 2 be amended to include:

 

Any encroachment permits issued for patios within 30 meters of properties zoned for residential use include the provision that they be required to close each night by 11 p.m., and that no patrons be permitted in the area after this time.

 

                                                                                                            CARRIED

 

That the Transportation Committee recommend Council approve:

 

1.         Changes to the provisions of the Encroachment By-law 2003-446 regarding the restructuring of fees for temporary outdoor patio encroachments as detailed in Document 1;

 

                                                                                                DEFERRED TO MAY 4

 

2.         Amendments to the separation distance approvals procedure, as detailed in Document 2, and as amended to include:

 

Any encroachment permits issued for patios within 30 meters of properties zoned for residential use include the provision that they be required to close each night by 11 p.m., and that no patrons be permitted in the area after this time.

 

3.         Housekeeping amendments to the by-law, as discussed in the report.

 

                                                                                                            CARRIED, as amended