1. AMENDMENT TO SITE PLAN CONTROL BY-LAW – RESTAURANT CONVERSIONS

MODIFICATION AU RÈGLEMENT SUR LA RÉGLEMENTATION DU PLAN D’IMPLANTATION – CONVERSIONS DE RESTAURANT

Committee recommendation

That Council approve the amendment to the Site Plan Control By-law 2002-04, as amended, to eliminate the requirement for a Site Plan Control application for restaurant conversion as shown in Document 1.

Recommandation DU Comité

Que le Conseil approuve la modification au Règlement 2002-04 sur la réglementation du plan d’implantation, tel que modifié, en vue d’éliminer l’obligation d’une demande de réglementation du plan d’implantation pour la conversion de restaurant décrite dans le document 1.

Documentation

1. Deputy City Manager's report, Infrastructure Services and Community Sustainability, dated 2 November 2011 (ACS2011-ICS-PGM-0212).

2. Extract of Draft Minutes, Planning Committee meeting of 5 December 2011.

Report to/Rapport au:

Planning Committee

Comité de l'urbanisme et de l'environnement

and / et

Council / et au Conseil

2 November 2011 / le 2 novembre 2011

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, Planning and Growth Management Department / Services de l’urbanisme et de la gestion de la croissance

(613) 580-2424 x 28869, John.Moser@ottawa.ca

City Wide/à l'échelle de la Ville

Ref N°: ACS2011-ICS-PGM-0212

SUBJECT:	AMENDMENT TO SITE PLAN CONTROL BY-LAW – RESTAURANT CONVERSIONS

OBJET :	MODIFICATION AU RÈGLEMENT SUR LA RÉGLEMENTATION DU PLAN D’IMPLANTATION – CONVERSIONS DE RESTAURANT

REPORT RECOMMENDATION

That Planning Committee recommend that Council approve the amendment to the Site Plan Control By-law 2002-04, as amended, to eliminate the requirement for a Site Plan Control application for restaurant conversion as shown in Document 1.

RECOMMANDATION DU RAPPORT

Que le Comité de l’urbanisme recommande au Conseil d’approuver la modification au Règlement 2002-04 sur la réglementation du plan d’implantation, tel que modifié, en vue d’éliminer l’obligation d’une demande de réglementation du plan d’implantation pour la conversion de restaurant décrite dans le document 1.

BACKGROUND

In 2007, the Office of the Auditor General completed an Audit of the Development Review Process, including 25 recommendations to improve the process.

Since that time, Planning and Growth Management has addressed each of the recommendations with the majority being complete.

As part of its review of the fairness and timeliness of application review and approval, the Auditor observed that Council requires Site Plan Control approval for restaurant conversions and questioned the powers prescribed to Council under the Planning Act to do so.

The Site Plan Control By-law 2002-04, as amended, requires that conversions of use to restaurant be subject to Site Plan Control, even if the conversion does not involve altering the building envelope or making changes to the parking area, which are normally two considerations used to determine if a proposal represents a major change in the utilization of the lands, and, therefore, is subject to the Site Plan Control process.

The Auditor found that if restaurant were not a permitted use in the Zoning By-law, the test for appropriateness of the conversion to a restaurant use would be through a Zoning By-law Amendment application. In contrast, if restaurant is a permitted use, the owner has as-of-right status to use the lands for a restaurant, subject to meeting the Building Code, Fire Code, etc.

The Auditor pointed out that Site Plan Control deals with matters defined as “development” in Section 41 of the Planning Act, and found the conversion of a use to a restaurant (with no expansion of the building envelope, increase in floor area, or change to parking) to be a gray area which may not qualify as “substantially increasing the size or usability thereof” under the Act.

It was noted that the amendment to the Site Plan Control By-law to include conversion to restaurant use was the result of a motion that was put forward and carried as part of Planning and Environment Committee’s (September 28, 2004) discussions on implementing the “On Time Review” changes. The minutes of that meeting stated that staff “did not have a problem with the motion.”

The Auditor felt that the matter required a legal opinion to validate its concerns, and recommended that the City’s Legal staff review the interpretation of the Site Plan Control provisions of the Planning Act as it relates to restaurant conversions.

Recommendation 22 of the Auditor’s Report read as follows:

That Planning and Infrastructure Approvals Branch and the Legal Services Branch review and if appropriate, consider amending the Site Plan Control By-law to exempt conversions to restaurant from Site Plan Control.

Management agreed with this recommendation, and committed that Planning and Legal Services would review the recommendation, and consider amending the Site Plan Control By-law to exempt conversions to restaurant from Site Plan Control. If appropriate, Planning agreed to bring forward a report to Committee and Council to change the Site Plan Control By-law.

DISCUSSION

Rather than attempting to create an exhaustive list of classes of development that are subject to the Site Plan Control process, Site Plan Control By-law 2002-04 outlines the classes of development that are exempt. Section 4 of the By-law outlines the classes of development that are exempt from Site Plan Control, in part, as follows:

4. (1) The following classes of development may be undertaken without Site Plan Control approval:

(c) the making of an alteration to a building that has the effect of changing the use of the building provided the change in use does not result in,

(i) a requirement under the applicable zoning by-law for the provision of more than 10 additional parking spaces on the lot, excepting the conversion to restaurant use, (By-law 2004-485)

(ii) the establishment of more than 10 additional parking spaces, excepting the conversion to restaurant use, or (By-law 2004-485)

Restaurant conversions were specifically added to the classes of development requiring Site Plan Control because of concern expressed by some Members of Council that if not subject to a planning process, retail and office uses would convert to restaurant uses, impacting on-street parking, and without consideration given to the locations for storage and pick-up of garbage. This concern related predominantly to uses along streets that are now designated in the Official Plan as Traditional Mainstreets.

Since the introduction of changes to the Site Plan By-law related to restaurant conversion, the matter of the provision of parking has been addressed in the context of the Comprehensive Zoning By-law 2008-250. In a January 2010 Ontario Municipal Board decision on an appeal, the Board spoke to the requirement for parking for restaurant (and retail) uses along Traditional Main Streets. After consideration of the evidence presented, in favour of both broader and stricter parking requirements, the Board stated:

There seems to be a balance or equilibrium between the existing retail and restaurant uses and whatever on-site, private or public parking lots and on-street parking spaces exist on the TMS [Traditional Main Street]. People frequenting these facilities are contented to find parking where they may and if they have to walk some distance, they do so with no complaint or concern.

The appeal was partially allowed, with the Board directing that newly established retail and restaurant uses on Traditional Main Streets will be exempt from providing parking for the first 150 m² in gross floor area, with parking required at the prescribed rates for these uses for any gross floor area in excess of 150 m².

In making its decision, the Board noted that 347 (22%) of the 1605 businesses located on Traditional Main Streets are restaurants. The Board also noted that 191 (55%) of these restaurants are smaller than 150 m², and would therefore require no parking under the Zoning By-law, as approved by the Board.

In 2010, sixteen applications for restaurant conversions were processed with the majority being in existing commercial plazas with parking provided that exceeded the minimums of the Zoning by-law. Parking requirements where conversion to restaurant use may generate a higher parking requirement are monitored by Building Code Services staff at the time of issuance of building permit. In most situations the impact on parking has been insignificant and would be dealt with by the Committee of Adjustment or through a minor variance if necessary, however these instances have been limited as a result of the changes to the Zoning By-law. Commercial plumbing, grease traps, and exhaust facilities are also reviewed at the building permit stage.

Furthermore staff have also noted that the application process itself has served to be a disincentive to the establishment of desirable businesses that can animate a street or rehabilitate a vacant commercial space. Through pre-consultations with potential applicants, staff have witnessed business owners who have abandoned business opportunities or specific desirable locations given the 8-10 weeks that the process involves, during which they have to pay rent for a commercial space that they have no legal way of operating without Site Plan Control approval.

With the elimination of this Site Plan Control process staff resources will be reallocated to other applications where value can be added to improve overall application approval timelines.

CONSULTATION

As this amendment is technical in nature, no consultation was undertaken.

LEGAL IMPLICATIONS

A conversion of an existing building to another use may be subjected to site plan approval if, as a result of the conversion, the usability of the building is substantially increased. To determine if site plan approval is applicable in the case of a conversion, this provision requires a case by case analysis as to whether this test has been met. As an alternative to such analysis, Council may determine to exempt a particular conversion from the requirement for site plan approval. It is noted that should the recommendation be adopted, unless removed from title, the provisions of any existing site plan agreement registered on title would continue to apply.

RISK MANAGEMENT IMPLICATIONS

N/A

FINANCIAL IMPLICATIONS

The associated application fees are approximately $45,000 to $84,000 per year. This amendment will reduce Planning and Growth Management’s future annual operating revenues by this amount, resulting in an operating budget pressure.

SUPPORTING DOCUMENTATION

Document 1 Amendment to Site Plan Control By-law 2002-04

DISPOSITION

The Planning and Growth Management Department will amend Site Plan Control By-law 2002‑04 and will modify its procedures to no longer require Site Plan Control for restaurant conversions effective December 14, 2011.
Amendment to Site Plan CONTROL By-law 2002-04 DOCUMENT 1

BY-LAW NO. 2011 - XX

A by-law of the City of Ottawa to amend By-law No. 2002-4, being the Site Plan Control By-law, 2002 to amend the regulations with respect to a change in use to a restaurant.

The Council of the City of Ottawa, pursuant to Section 41 of the Planning Act, R.S.O.1990, enacts as follows:

1. Clause 4(1)(c) of By-law No. 2002-4 entitled “A by-law of the City of Ottawa designating the area within the limits of the City of Ottawa as an area of site plan control”, is amended by:

(a) deleting the words " excepting the conversion to restaurant use," in subclause (i),

(b) deleting the words "excepting the conversion to restaurant use," in subclause (ii).

ENACTED AND PASSED this 14^th day of December, 2011.

CITY CLERK MAYOR