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 EXTERIEURES

 

 

Committee recommendation, as amended

 

That Council approve 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, as amended by the following:

 

1.         That staff undertake a pilot project for two full seasons, in partnership with the Preston Street BIA, to allow Preston Street businesses (between Somerset Street West and Carling Avenue) to maintain existing, or open new patios at the unimproved rate of approximately 43% of the standard fee ($1.30/m2/day);

 

And that staff be directed to bring forward an interim report after one year so the Committee might assess expanding the pilot a second year.

 

2.         That patio rates be reviewed globally including patio rentals from private property owners and that staff report back to the Transportation Committee by November, 2011.  The report to include how to deal with patio charges during construction.

 

 

Recommandation modifiée du comité

 

Que le Conseil approuve 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; tel que modifié par le suivant :

 

1.         Que le personnel organise un projet pilote pendant deux saisons complètes, en partenariat avec la ZAC de la rue Preston, afin de permettre aux commerces de la rue Preston (entre la rue Somerset Ouest et l’avenue Carling) de conserver leur terrasse existante ou d’en aménager de nouvelles au taux non majoré d’environ 43 pour cent du taux normal (1,30 $/m2/jour);

 

Et que le personnel présente un rapport provisoire après un an, de façon que le Comité puisse évaluer la possibilité de prolonger le projet pilote pour une seconde année;

 

2.         Que les tarifs fixés pour les terrasses, y compris pour la location de terrasses de propriétaires privés, fassent l’objet d’un examen global, et que le personnel fasse rapport au Comité des transports d’ici au mois de novembre 2011.  Le rapport devra traiter de la démarche à adopter à l’égard des frais pour terrasses pendant les travaux de construction.

 

 

 

Documentation

 

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

 

2.      Extract of draft minutes, Transportation Committee meeting of 4 May 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-ressource :  Ermis Durofil, Program Manager

Right of Way By-laws, Permits and Inspections/gestionnaire de programme, Règlements sur les emprises, Permis et Inspections,

Planning and Growth Management/Urbanisme et Gestion de la croissance

613-580-2424 ext./poste 13764, Ermis.Durofil@ottawa.ca

 

City-Wide/à l’échelle de la Ville

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

            Recommendation 1 deferred on 6 April 2011 / Recommandation 1 reportée du 6 avril 2011.

 

            REPORT RECOMMENDATION

 

That the Transportation Committee recommend Council approve 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.

 

The following delegations supported the Motion for a pilot on Preston Street and voiced their concerns about the fairness of applying fees to patios on Preston:

 

Lori Mellor, Preston Street BIA

Joe Cotroneo, Pub Italia

Bob Russell, Stoneface Dolly’s

 

Jasna Jennings and Steve Monuk, ByWard Market BIA – was in support of applying the same pilot to patios in the ByWard Market.

 

MOTION TRC 7/1

 

Moved by Councillor D. Deans

 

WHEREAS Little Italy is a unique cultural district and asset for the City of Ottawa;

 

AND WHEREAS the existing patios are geared towards dining, as the zoning on Preston Street does not permit bars;

 

AND WHEREAS the majority of businesses in Little Italy are independent owner-operated establishments;

 

AND WHEREAS the recent reconstruction of Preston St. was intended to increase the opportunities for patios animating the street;

 

AND WHEREAS some businesses have noted that the proposed encroachment fees of $1.30/m2/day coupled with the high start up costs for a new patio has made this option unaffordable;

 

AND WHEREAS the Preston St. Business Improvement Area has met with City staff to discuss potential solutions to this barrier;

 

AND WHEREAS there has been an understanding between the Preston BIA, community association and the Councillor’s office that the predominantly commercial area is to the south of Somerset Street;

 

AND WHEREAS the Preston St. BIA recommends that the success of the pilot project be measured by the amount of new growth in the number of patios and the retention of the existing patios;

 

THEREFORE BE IT RESOLVED that the Transportation Committee direct staff to undertake a pilot project for two full seasons, in partnership with the Preston St. BIA, to allow Preston St. businesses (between Somerset St. W. and Carling Ave) to maintain existing, or open new patios at the unimproved rate of approximately 43% of the standard fee ($1.30/m2/day).

 

MOTION TRC 7/2

 

Moved by Councillor M. Fleury

 

That Motion TRC 7/1 be amended to direct that staff bring forward an interim report after one year so the Committee might assess expanding the pilot a second year.

 

Motion TRC 7/1 was then put to the Committee and CARRIED, as amended.

 

MOTION TRC 7/3

 

Moved by Councillor Clark

 

That patio rates be reviewed globally including patio rentals from private property owners and report to Committee by November, 2011. The report to include how to deal with patio charges during construction.

 

                                                                                                CARRIED

 

            The report recommendation, as amended by Motions TRC 7/1 and 7/3 and set out below, was then put to Committee:

 

That the Transportation Committee recommend Council approve 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, and as amended by the following:

 

1.         That the Transportation Committee direct staff to undertake a pilot project for two full seasons, in partnership with the Preston St. BIA, to allow Preston St. businesses (between Somerset St. W. and Carling Ave) to maintain existing, or open new patios at the unimproved rate of approximately 43% of the standard fee ($1.30/m2/day);

 

And that staff be directed to bring forward an interim report after one year so the Committee might assess expanding the pilot a second year.

 

2.         That patio rates be reviewed globally including patio rentals from private property owners and report to Committee by November, 2011.  The report to include how to deal with patio charges during construction.

 

                                                                                                            CARRIED

 

            DIRECTION TO STAFF

 

            That the report to come back as per Motion TRC 7/1 include the following:

·         Historical information of how patio fee rates are established.

·         How other cities set rates for patios during construction periods.

·         An analysis across Canada as to what other cities are charging for patios and an explanation as to how staff arrived at the established rates to charge for patios in Ottawa; are their rates based on the full year or on an annualized basis?