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2012/02/28 COMMITTEE OF THE WHOLE AGENDA ,, SECOND MEETING Tuesday, February 28, 2012 5:15 p.m. City Hall, Committee Room #2A & B 1) REPORTS: STAFF CONTACT: a) F- 2012 -10 Development Charges waiver for the FACS Building Todd Harrison b) L- 2012 -03 Committee of Adjustment Extent of Authority Ken Beaman c) PD- 2012 -18 Appeal of the Committee of Adjustment Decision, Consent Application B- 2011 -024, 7715 Carl Road, Applicant: Salvatore & Rita Pietrangelo Alex Herlovitch 2) NEW BUSINESS: 3) ADJOURNMENT: IN- CAMERA SESSION a) Resolution to go into Closed Meeting. F- 2012 -10 Niagarraaalls February 28, 2012 REPORT TO: Councillor Carolynn loannoni, Chair and Members of the Committee of the Whole City of Niagara Falls SUBMITTED BY: Finance Department SUBJECT: F- 2012 -10 Development Charges Waiver for the Family and Children's Services Building RECOMMENDATION Staff recommend that Council deny the grant request. EXECUTIVE SUMMARY Family and Children Services has requested that Council refund the City's portion of Development Charges collected in respect to their new building. The amount requested is $47,490. The City's DC by -law does not provide for refunds or exemptions for this type of development project. As a result, staff do not recommend that an exemption be granted. Staff have engaged Hemson Consulting perform a Peer Review of the existing City DC Bylaw. One of the many issues that will be addressed in this review is in regard to exemptions for non profit community organizations. BACKGROUND The City received a request from the Family and Children's Services (FACS) agency requesting that Council consider waiving the Development Charges related to the construction of their facility at 7900 Canadian Drive since the project is complete and the development charges have been previously paid, the City will have to refund the amounts paid. FACS is a social service agency with a core mandate of protecting children, supporting families, foster care and adoption. Attached is the letter received requesting support and outlining the services provided by the agency. ANALYSIS /RATIONALE The City's DC by -law requires that all development projects provide development charges unless the property is exempt. The existing DC by -law provides exemptions and partial exemptions to certain types of development projects. Exemptions are provided for that portion of the building or structure owned by a church or religious organization when used exclusively as a place of worship. However, exemptions are not provided for charities nor community service agencies. As Council knows, development charges are collected as a funding source for municipal growth related capital projects. Once collected the DC amounts are maintained in specific reserves until required for funding of municipal projects. February 28, 2012 - 2 - F- 2012 -10 The impact of exemptions are identified during the process of developing the bylaw. The current Bylaw was approved in 2009 and is scheduled to be renewed in 2014. As stated, exemptions for charities or community service agencies are not identified in the existing bylaw. Consequently in situations wherein Council provides exemptions not otherwise considered in the bylaw, there is an obligation to fund the DC reserve account in the exact amount granted. This obligation is based on the assumption that funding of the grant must be derived from some source. If the exemption had been considered in the development of the bylaw, the rates charged developers would be reflective of potential grants. Since these exemptions were not considered, then the funding of the grant must come from an existing source, either existing reserves or the current operating /utility budgets. Previous Councils have provided development charge exemptions to charitable organizations. In these cases, the request was made prior to construction. In those circumstances, the grant recipients were providing direct services to the municipality. These groups include the Stamford Volunteer Firemen Association which provides City residents public access and maintenance on Firemen's Park and the Boys and Girls Club which developed a new facility and is providing recreation programming not otherwise provided by the City. The ongoing DC Peer Review will address the issue relating to the exemption of community groups and agencies as the present bylaw only grants exemption to religious organizations. FINANCIAL /STAFFING /LEGAL IMPLICATIONS The total development charges paid on this project was $131,090, including $83,150 to the Region of Niagara. Council's authority to waive is limited to the City's portion of $47,940. Regional Council would be responsible for waiving amounts related to Regional portion. The City's existing DC By -law does not specifically have a policy for reducing DC's incurred by service groups. Staff believe that providing an exemption is contradictory to the current bylaw. Should Council decide to approve the request and provide a grant, staff recommend the funding come from the Capital /operating reserve. As at December 31, 2011 the reserve is approximately $7.4 million. This reserve is held as security for future City liabilities related to the potential demolition of the CN railway bridge. Council must be wary of allocating this reserve to projects until such time that the issue of the lower bridge is resolved, however, the amount required for this grant does not impair the City's ability to meet that potential obligation. Alternatively, the funding could come from a direct increase in the 2012 General Purpose Budgets and Utility budgets. CITY'S STRATEGIC COMMITMENT While the agency provides worthwhile community support, these services are not a core municipal responsibility and this does not align with Strategic Commitments of Council. LIST OF ATTACHMENTS February 2, 2012 Letter - Recover of Development Charges February 28, 2012 - 3 - F- 2012 -10 Recommended by: ' // t Y Todd Harris. n, Dire r tor of finance Respectfully submitted: Ken Tod , Chief Administrative Officer l FACS Family and Children's Services Niagara February 2, 2012 The City of Niagara Falls City Hall, P.O. Box 1023 . , 4310 Queen Street or; Niagara Falls, Ontario, Canada L2E 6X5 Dear Mayor Diodati and Members of Council Re: Recovery of development fees, FACS Niagara — 7900 Canadian Drive ?JH r.3r e Family and Children's Services Niagara is a multi - service agency serving the community since our inception as the children's aid society in Niagara Falls in 1898. Our core mandate is the protection of children, support to families, foster care and adoption. We also provide community programs including: family counselling, child care, early learning and parenting centres, Ontario Early Years programs and services for developmentally delayed adults. We serve the entire Niagara region with branches in St. Catharines, Welland and in Niagara Falls at 7900 Canadian Drive, which also serves Fort Erie. Of the approximately 4, 500 child protection cases we serve, nearly 990 originate in Niagara Falls and 330 in the Fort Erie community. With regard to children in care, more than 200 of the 780 children cared for, are in Niagara Falls and Fort Erie. As you know, we recently celebrated the Grand Opening of an expanded facility here in Niagara Falls. Our location at 7900 Canadian Drive has more than 11 r r doubled in size and a "family centre" has been added to the facility. The family friendly atmosphere and amenities, along with the additional space allows us to ' P '" `'I` better serve all families in Niagara Falls and Fort Erie, and to serve them locally. This facility was built with the contributions and cooperation of many, including $1.67 million dollars in infrastructure funding from the federal and provincial governments. We also enjoyed a successful campaign with many significant contributions including the Town of Fort Erie and the McCall MacBain Foundation. Former Niagara Falls resident and philanthropist, John MacBain and his sister Shelley attended our opening and dedicated the facility to the e� ���: ,��� �37-7;3 legacy of the MacBain family in Niagara Falls. Tr I Free: 1 888 -3337 7731 F.,< 7 3 7 33 - +5Y; 7 3„J33, a33r F r a i l . FAC N )gara l n t 3 °fac 3T)3 ' l.ca We are writing to you now to ask you to consider the matter of development fees. FACS Niagara has paid $47, 940 in development fees to the City of Niagara Falls and a further $83, 150 to the Region of Niagara. This was necessary in order to obtain building permits enabling us to get underway with construction. We have had a number of discussions with staff and representatives at both the municipal and regional level and obtained varying opinions with regard to our eligibility for exemption. We contend that we are eligible and we would ask that you take this under consideration. With the support of our federal, provincial, municipal and community partners we have all but covered the entire $3.4 million cost of the project. There remains approximately $100, 000 to close the gap. Recovery of our development fees would enable us to do so and to secure the sustainability of this facility and our services to the Niagara Falls and Fort Erie communities. We are committed to working in partnership with our local governments to provide the best service possible to our community. We hope that you can support us in this mission through the recovery of our development fees and support of our Niagara Falls facility. Thank you for sharing in our commitment to local children and families, and for your kind consideration of this matter. Yours truly, . Joseph E. McLaughlin Chris Steven. RSW, MSW President, Board of Directors Executive Director \j pd Enclosures: L- 2012 -03 Niagara alls February 28, 2012 REPORT TO: Councilor Carolynn lonannoni, Chair and Members of the Committee of the Whole City of Niagara Falls, Ontario SUBMITTED BY: Legal Services SUBJECT: L- 2012 -03 Committee of Adjustment Extent of authority Our File No. 2007 -181 RECOMMENDATION For the information of Council. BACKGROUND /ANALYSIS At the Council Meeting of September 19, 2011, Council requested a Report "on the authority of the Committee of Adjustment and what is considered a minor variance ". This Report was prepared in response to that direction. The Report concentrates on the authority of the Committee of Adjustment to grant minor variances from the provisions of zoning by -laws. Committees of Adjustment can also grant consents to several land interpretations of the general use provisions of zoning by -laws, extensions and expansions of legal nonconforming uses, and Certificates of Validation under the Planning Act. A Committee of Adjustment has considerable authority to grant variations from the zoning by -laws of a municipality. These powers are defined by the Planning Act, R.S.O. 1990 c. P.13. The Planning Act is a provincial law. Provincial law supersedes municipal law. With the exception of placing explicit mandatory direction in its Official Plan, a municipal council cannot circumscribe the authority of a Committee of Adjustment. The Planning Act of Ontario, R.S.O. 1990 c.P.13 permits a municipality to create a Committee of Adjustment. One of the matters that a Committee of Adjustment has the authority to deal with, are what are known as "minor variances ". A minor variance is a permission to use land in a manner which is not authorized by the applicable zoning by- law. The extent of the authority granted to the Committee by the Planning Act are as set out in subsections 45 (1) through 45 (3) of the Planning Act. Those subsections read as follows: 1. 45. (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by -law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by -law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the February 28, 2012 - 2 - L- 2012 -03 committee the general intent and purpose of the by -law and of the official plan, if any, are maintained. R.S.O. 1990, c. P.13, s. 45 (1); 2006, c. 23, s. 18 (1); 2009, c. 33, Sched. 21, s. 10 (11). Restriction (1.1) Subsection (1) does not allow the committee to authorize a minor variance from conditions imposed under subsection 34 (16) of this Actor under subsection 113 (2) of the City of Toronto Act, 2006. 2006, c. 23, s. 18 (2). Other powers (2) In addition to its powers under subsection (1), the committee, upon any such application, (a) where any land, building or structure, on the day the by -law was passed, was lawfully used for a purpose prohibited by the by -law, may permit, (i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by -law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by -law was passed, or (ii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by -law was passed or is more compatible with the uses permitted by the by -law than the purpose for which it was used on the day the by -law was passed, if the use for a purpose prohibited by the by -law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; or (b) where the uses of land, buildings or structures permitted in the by -law are defined in general terms, may permit the use of any land, building or structure for any purpose that, in the opinion of the committee, conforms with the uses permitted in the by -law. R.S.O. 1990, c. P.13, s. 45 (2). Power of committee to grant minor variances (3) A council that has constituted a committee of adjustment may by by -law empower the committee of adjustment to grant minor variances from the provisions of any by -law of the municipality that implements an official plan, or from such by -laws of the municipality as are specified and that implement an official plan, and when a committee of adjustment is so empowered subsection (1) applies with necessary modifications. R.S.O. 1990, c. P.13, s. 45 (3). The Courts have ruled that when a Committee of Adjustment is making a determination as to whether or not a minor variance should be granted, it must consider the following four tests: 1. Is the variance being applied for a minor variance? 2. Is the variance being applied for, in the opinion of the Committee, the appropriate development or use of the land, building or structure? February 28, 2012 - 3 - L- 2012 -03 3. Does the variance being applied for, in the opinion of the Committee, maintain the general intent and purpose of the zoning by -law? 4. Does the variance being applied for, in the opinion of the Committee, maintain the general intent and purpose of the Official Plan? In applying the first test, the Committee is required to examine each variance so as to determine whether or not, with respect to both size and importance, which includes impact, the requested variance is minor. The second test requires the Committee to consider and reach an opinion on the desirability of the variance sought for the appropriate development or use of the land, building or structure. This includes a consideration of the many factors that can affect broad public interest as it relates to the development or use. Accordingly, the Committee is required to consider each variance sought and reach an opinion as to whether or not, either alone or together with the other variances sought, it is desirable for the appropriate and general use of the subject property. The issue is not whether the variance is desirable from the perspective of the applicant but rather, whether it is desirable from a planning and public interest point of view. The third test requires the Committee to consider and reach an opinion on whether or not the variance sought would maintain the general intent and purpose of the zoning by -law. Accordingly, the Committee is required to engage in an analysis of the zoning by -law to determine its general intent and purpose and to consider whether the variance sought would maintain that general intent and purpose. The fourth test requires the Committee to consider and reach an opinion on whether or not the variance sought would maintain the general intent and purpose of the Official Plan. Accordingly the Committee is required to engage in an analysis of the Official Plan to determine its general intent and purpose and to consider whether the variance would maintain that general intent and purpose. The proper performance of this prescribed four step exercise will rarely be simple. It requires, without exception, a careful and detailed analysis of each application to the extent necessary to determine if each variance sought satisfies the requirements of each of the four tests. The Committee of Adjustment may not rely upon the opinions of planners in its determination of whether or not the general intent and purpose of the Official Plan and zoning by -law have been maintained. These questions are questions of law and the Committee of Adjustment is required to make its own independent determination on these issues. In appropriate circumstances, a Committee of Adjustment may grant a minor variance which could completely eliminate a by -law regulation requirement. Inappropriate circumstances a Committee of Adjustment may rant a use that is forbidden circumstances, j Yg by the zoning by -law. It should be noted that the Courts have ruled that this power is not absolute. For example, a change in use from using a premises exclusively to sell products produced or assembled on that premises to allow the sale of products which were not produced or assembled on that premises was upheld. However, in another case, the Court February 28, 2012 - 4 - L- 2012 -03 found that a change of use from Highway Commercial to Residential was not a matter to be dealt with by way of minor variance. LEGAL IMPLICATIONS As outlined above in Background /Analysis. Recommended by: 6.40//wA,L, Ken Beaman, City Solicitor Respectfully submitted: Ke Todd, Chief Administrative Officer KB PD- 2012 -18 Niagara February 28, 2012 REPORT TO: Councillor Carolynn loannoni, Chair and Members of the Committee of the Whole City of Niagara Falls, Ontario SUBMITTED BY: Planning, Building & Development SUBJECT: PD- 2012 -18 Appeal of the Committee of Adjustment Decision Consent Application B- 2011 -024 7715 Carl Road Applicant: Salvatore & Rita Pietrangelo RECOMMENDATION That Council authorize staff to appeal the Committee of Adjustment's decision to grant Consent Application B- 2011 -024 to the Ontario Municipal Board. EXECUTIVE SUMMARY On February 7, 2012, the City's Committee of Adjustment approved Consent Application B- 2011 -024 which does not comply with the City's Official Plan, the Regional Niagara Policy Plan and the Provincial Policy Statement and Growth Plan. Comments received from the Niagara Peninsula Conservation Authority state that the creation of Tots that contain a flooding hazard limit is not supported. Staff is seeking Council's authorization to appeal the decision to the Ontario Municipal Board. The final day of appeal is February 29, 2012. BACKGROUND The applicant owns 6.9 hectares (17.0 acres) of land located on the north side of Carl Road between Montrose and Misener Roads (see the attached Schedule 1 - Surveyor's Sketch). An application for severance was submitted to the City's Committee of Adjustment to convey 1.2 hectares (3.0 acres) of vacant land (Part 1) for rural residential use and to retain 5.7 hectares (14.3 acres) of land for the continued rural residential use of 7715 Carl Road. The Committee of Adjustment granted approval of consent application (B- 2011 -024) on February 7, 2012 contrary to staff's recommendation. Staff recommended the application not be approved for several reasons. The lands are located outside of the Urban Area Boundary. The application does not comply with the Provincial Policy Statement (PPS) which requires prime agricultural lands be preserved. Moreover, the PPS prohibits the creation of new residential Tots in prime agricultural areas unless it is for a residence surplus to a farming operation. February 28, 2012 - 2 - PD- 2012 -18 The approval of Consent Application (B- 2011 -024) is contrary to the Regional Policy Plan and the City's Official Plan. The Regional Policy Plan designates the subject land Good General Agricultural. The City's Official Plan designates the lands as Good General Agriculture. Council recently adopted Natural Heritage Policies (OPA No. 96) which will designate the northerly portion of Part 1 Environmental Protection Area. Both documents do not permit creation of a new lot for non - agricultural purposes. The reasons stated by the Committee for their decision was that the creation of the parcel is appropriate and consistent with the immediate area and the creation of the parcel would have minimal negative impact on agricultural uses. Staff is seeking Council's concurrence and authorization to proceed with an appeal of the Committee's decision to approve application B- 2011 -024 on the basis that the severance: • is contrary to the City's Official Plan; • does not comply with the Regional Policy Plan; • does not comply with the Provincial Policy Statement; and • could set an inappropriate precedent. A copy of this report has been provided to the applicant's agent who has been advised that Council will be considering the matter tonight. CITY'S STRATEGIC COMMITMENT The severance conflicts with the City's policy of protecting prime agricultural areas and directing non -farm development to the urban area. LIST OF ATTACHMENTS • Schedule 1 - Surveyor's Sketch Recommended by: t r / ;�. Alex Herlovitch, Director of Planning, Building & Development Respectfully submitted: Ken Todd, Chief Administrative Officer A.Dilwaria:mb Attach. S: \PDR\2012 \PD- 2012 -18, Appeal of C of A Decision, 7715 Carl Road, Salvatore Pietrangelo.wpd February 28, 2012 - 3 - PD- 2012 -18 SCHEDULE 1 ' 't,:a z z A U Q ° Z v) Q Q � z �S+n' LL a o a -, Z o! Z j 0.041 1130011W GI 6 O U CO u _ yd Z `�' b li � W L o 1--- z a. S i , � u, O 3 o zo m z° L..... v 2 2 g i_ z of I u _, Z ,o o Q O Z v o �� V& I Cr U u, R. " ° a pDOe3 2SOJ UGH \ Eo I \\ a Q Q a a \\ \\ r-1 - -V \ t _ r r a n 19L8 —a6S \ \\ N � d \\ c c \\ l laud Q a a ¢ '-'{ \\ a. a , \ \ h Y'40S \\ 1 l9'B£Z \\ 09'09Z f 0 \\ off S1-Z l =v3av 0 a r N.L.1:1Vci n ° o �� > m o m x `mil N a 1 ti - 0 N it S `i� b o �� ��' m o ,� D � � i R r i m I-rn b 1 © :� NIp7l o „ Q N ` Y9'661 \\ n I' ; N • 4 �1 jN /E006 /o£8 \ \ £ L21Vd N'� a 30NH213A3S Sf101A32id > S e £6LLL -66S '\N'fld --j>.—'-'4 so sos tavd \ — n °I �� j £6 ass Mild laud \ \\ s I �IN'I ° -� it m ( \U I a Z i 6 I w L � \J r� � V // g „p N b 7 / I i/ a I N y 0 v ( 4 y CITY D NA 1.111 F• gC i� .. CA DA —_ __ t ARA FA _ The City of Niagara Falls, Ontario Resolution No. Moved by Councillor Seconded by Councillor WHEREAS all meetings of Council are to be open to the public; and WHEREAS the only time a meeting or part of a meeting may be closed to the public if the subject matter falls under one of the exceptions under s. 239(2) of the Municipal Act, 2001. THEREFORE BE IT RESOLVED THAT on February 28, 2012 Niagara Falls Council will go into a closed meeting to consider matters that fall under the subject matter of239(2)(c)proposed or pending acquisition or disposition of lands by the municipality related to part of an alley, Plan 311, lying between Peer Lane and Pts. 1 and 2 on Reference Plan 59R -9971 and the corner of Pew Street and Brookfield Avenue and a 239 (2)(e) a litigation matter. AND The Seal of the Corporation be hereto affixed. DEAN IORFIDA JAMES M. DIODATI CITY CLERK MAYOR