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Recommendation: That, the following
actions be taken with respect to the application of Bluestone Properties
Inc., relating to the property located at 450 Oxford Street West:
a) the
proposed by-law, as appended to the staff report dated September 20, 2013, BE
INTRODUCED at the Municipal Council meeting to be held on September 17, 2013,
to amend the Official Plan to change the designation of the subject lands
FROM a Multi-family, High Density Residential designation and an Open Space
designation TO an Office Area designation, to permit office and secondary
uses with a maximum office gross floor area of 5,000 square metres; it being
noted that a fill permit may be required from the Upper Thames River
Conservation Authority for a portion of these lands;
b) the
proposed Zoning By-law amendment to change the zoning of the subject property
FROM a Restricted Office/Day Care (RO2/DC) Zone, which permits office uses
and day care facilities with a maximum office gross floor area of 2,000
square metres, and an Open Space (OS4) Zone, which permits conservation lands
and works, golf courses, private parks, public parks, cultivation or use of
land for agricultural/horticultural purposes and sports fields TO a Holding
Office Special Provision (h-___*OF4( )) Zone, to permit clinics, medical/dental
offices, medical/dental laboratories, offices, financial institutions and
personal service establishments with a maximum gross floor area of 5,000
square metres, and special provisions to establish minimum and maximum yard
setbacks from Oxford Street West of between 1.0 and 3.0 metres and minimum
and maximum yard setbacks from Proudfoot Lane of between 4.0 metres and 6.0
metres; it being noted that the holding provision requires that no
development occur on these lands until such time as the Upper Thames River
Conservation Authority has provided to the City any revised floodlines
arising from the completed Mud Creek Subwatershed Study Update, and has
approved a fill permit, if required, BE REFERRED to the Civic Administration
for further consideration and to report back at a future public meeting of
the Planning and Environment Committee following the resolution of issues
related to the location of the floodlines on these lands arising from the
final Mud Creek Subwatershed Study update;
c) the
request for the Site Plan Approval Authority to consider design,
transportation and environmental issues, through the site plan process BE REFERRED to the
Civic Administration for further consideration and to report back at a future
meeting of the Planning and Environment Committee in association with clause
b), above;
d) upon
completion of the Mud Creek Subwatershed Study Update and the provision of
revised flood lines by the Upper Thames River Conservation Authority to the
City, the Civic Administration BE DIRECTED to provide any
required amendments to the Official Plan and the Z.-1 Zoning By-law to
implement the revised flood lines as approved by the Upper Thames River
Conservation Authority; it being noted that an Open Space designation and an
Open Space (OS4) zone variation could be applied to a portion of these lands;
and,
e) no
action BE TAKEN to pursue City acquisition of the portion of the subject
lands currently designated as Open Space in the Official Plan;
it being noted that the Planning and
Environment Committee reviewed and received a communication, dated September
6, 2013, from J. Brick, Coordinator, Hydrology and Regulatory Services, Upper
Thames River Conservation Authority, with respect to this matter;
it being pointed out that at the public participation
meeting associated with this matter, the following individuals made oral
submissions in connection therewith:
·
Alan
R. Patton, Patton Cormier & Associates, on behalf of the applicant –
advising that on page 2 of the staff report, Mr. Bierbaum has been involved
in a development proposal on this land since 2004; indicating that, at this
point in this long and iterative process, Bluestone is asking that the
Municipal Council only pass the Official Plan amendment to redesignate the
property to an Office Area designation; noting that this will put some
certainty in the planning process that the Municipal Council is seriously
looking at an office area designation; advising that Bluestone also asks that
discussions regarding the Zoning by-law amendments be adjourned to allow discussions
to be held with both the Upper Thames River Conservation Authority (UTRCA)
and the City on a number of technical issues, many of which the Committee has
heard tonight during the Planning staff review; indicating that some of the
matters that they would like to discuss include traffic, such as setbacks
from the ultimate road allowance, parking and a justification report rather
than relying on a minor variance in the future; indicating that they believe
that it is important to hold some discussions with the UTRCA over their
position on the floodway; indicating that, in his review of the material, the
UTRCA seems to be somewhat at odds with the City on this matter; advising
that there are discussions that can be held during the zoning review as well
as discussions concerning the Mud Creek Subwatershed Study; noting that the
site plan approval would not be dealt with and revisions would be worked on
at the appropriate time to provide the Committee with a more detailed site
plan that what is presently before the Committee; advising that the Committee
asked about the height allowed in the OF4 Zone and advising that the OF4 Zone
permits a maximum height of 19 metres which equates to about 60 feet; noting
that this would allow for a four or five storey building; indicating that Mr.
Bierbaum has advised that he is open to the suggestion of a higher building
to reduce the footprint but still maintain the gross floor area; indicating
that Bluestone would rather get the Municipal Council’s position that an
Office Area designation is appropriate and then continue the discussions over
a zoning by-law that matches the floodway; indicating that there is a
disconnect between what the Municipal Council will hear from the City’s
stormwater management staff and the UTRCA on the area that is capable for
development; indicating that there is no point in passing a zoning by-law
with a holding provision; advising that after 9+ years, it is time that
Bluestone has the knowledge that an Office Area designation on this property
is sound land use planning and should be advanced; reiterating that what his
client would like is exactly what the staff recommended in the Official Plan
amendment and working out the details through zoning, everything from height to
access points, to areas that would be parking and site plan approval matters;
advising that the UTRCA would still have authority, through their regulatory
process, to define where the floodway is; advising that that is independent
of the Office Designation; indicating that Bluestone is hoping to avoid a h-5
holding provision on this property; advising that if you look at the wording
of the h-5 holding symbol, it cannot be lifted until the UTRCA has provided
the City with its revised flood lines arising from the Mud Creek Subwatershed
Study and has approved a fill permit; advising that the way the h-5 holding
provision has been drafted, the City puts all authority over the UTRCA;
indicating that Bluestone believes that they can accomplish, with fair discussion,
between Planning staff, Engineering staff and the UTRCA, to allow the development
to proceed when both sides are satisfied that a fill permit that can be
issued and there is no need to come back to another meeting to remove the h-5
holding provision; advising that the scenario that Bluestone is presenting is
that if you adjourn the staff recommendation on the h-5 holding provision,
another by-law could come forward at a second meeting when everyone is
satisfied; indicating that he expects that the site plan will go a long way in
satisfying the UTRCA; indicating that, in the UTRCA’s latest submissions,
there are some obstacles to overcome; advising that Bluestone’s concern is to
just take it one step at a time and not raise expectations; noting that Bluestone
has some work to be do as they were just advised that the set back from the
building will now be 20 meters; noting that the building was designed with a
setback of 18 metres; advising that the application has been in the hands of
the Municipality for so long that Bluestone can go to the Ontario Municipal
Board (OMB) directly and have it dealt with at the OMB; noting that Bluestone
is not prepared to take this action; and expressing concern that the passing
of the proposed zoning by-law may trigger an appeal to the OMB.
·
Henk
Ketelaars, 1058 Colborne Street – advising that he is a Member of the
Transportation Advisory Committee; expressing concern with the comments in
the staff report addressing traffic heading north and exiting onto Oxford
Street from that subdivision; noting that staff indicate that it is never a
problem; advising that for him, the problem is going east from Platts Lane;
and recommending the installation of an advance green in that intersection.
·
Jeff
Brick, Coordinator, Hydrology and Regulatory Services, Upper Thames River
Conservation Authority (UTRCA) – answering the question with respect to the
parking requirement on page 28 of the staff report; noting that parking is a
part of development; advising that the Provincial Policy Statement prohibits
development from being located in the flood way; advising that provisional
development in the flood fringe is allowed, but new development in the flood
way is prohibited; noting that parking is part of the development; keeping in
mind that when you approve the development, you have to contemplate where the
parking is going to be located; talking about prohibiting new development in
the flood way ties in very nicely with the question that was asked about parking
lots at Western University; noting that the parking lots at Western
University are very problematic; however, they are existing parking lots;
noting that if the UTRCA could go back and do it again, the UTRCA would do it
differently and would not allow parking lots in the flood way that serve
development located outside of the floodway; indicating that this reinforces
why the policy has been worded as it is; indicating that the project that is
being discussed is not an existing development, which is why he is making the
comment about not putting development in the floodway; realizing that this
has been a long process; noting that they have had communications, meetings
and consultation with Mr. Bierbaum and City staff since the start of the
project; further noting that everyone recognizes that this is a complicated
application; thanking Mr. Bierbaum for his patience; advising that, with the
information before the Committee tonight, there is a partially completed Mud
Creek Subwatershed Study, which provides new information that the UTRCA is
reacting to; indicating that the Study will be provided to the Civic Works
Committee in a couple of weeks and that is one of their main concerns; expressing
concern about relying on a recommendation from a Study that has not been fully
completed or reviewed and may not have been vetted by other City departments;
noting that it has not been vetted by the UTRCA; advising that, by selecting
one recommendation out of the Study and choosing to rezone this property, it would
certainly could cause some expectations that are very problematic; indicating
that the 1995 Mud Creek Subwatershed Study did not generate accurate flood
lines; noting that the UTRCA found that out during the process; further
noting that it is unfortunate that those flood lines were not perfect; reiterating
that, with the new information provided, the determination was made that the
flood lines were substandard; indicating that the UTRCA has consistently
advised the City that the approval of planning applications is premature
until the flood line information is updated; advising that the UTRCA has
worked with this proponent and the proponent has patiently waited while the Subwatershed
Study was completed; noting that a flood line analysis for this type of
property is much more extensive than just looking at the property on its own
because you have to look at the whole subwatershed; further noting that, in
fairness to a single proponent, the magnitude of a project to look at all of
the catchment area and all of the constraints in the catchment area, which
are on many other property owners land, would make it extremely difficult for
this property owner to update the mapping; expressing appreciation to Mr.
Bierbaum for his patience in allowing the Subwatershed Study update to occur
and allowing the flood line mapping update, that was a part of that process,
to occur; advising that the draft subwatershed update confirms that the
property is below the 100 year elevation for the existing condition which is
bad news for the development from the perspective that that puts it in the
flood way; advising that the UTRCA understands that there is a preferred
alternative identified in the draft Subwatershed Study which indicates that
this site is a good candidate for filling to raise it out of the flood plain;
however, the UTRCA provided their communication after they had an opportunity
to review the Planning report to emphasize that it would be premature to make
a decision on the basis of a Study in draft form because it is only draft at
this point in time; advising that the preferred alternative, as identified by
the consultant, would have the effect of increasing flood risk on adjacent
properties and public infrastructure; advising that, to approve the preferred
alternative, in its current form, without addressing the flooding on
neighbouring properties, is precisely why the UTRCA regulates development in flood
plains; indicating that the UTRCA does not want flooding on other properties;
advising that the preferred alternative is not consistent with Provincial
policy to fill in the floodway on a property on its own, Conservation
Authority policy and the City’s Official Plan; reiterating that the preferred
alternative cannot be supported by the UTRCA; emphasizing that the UTRCA is
very pragmatic about these matters; recognizing that there are examples
referenced in the report, the Pottersburg system and the Stanton drain
system, where there have been projects which involved looking at the whole
system, optimizing the flood plain, allowing the process to look at all the
pro’s and con’s and coming up with a scheme which allows some filling in the
floodway in exchange for protection of other areas; indicating that, as a
Conservation Authority, we support those kinds of approaches on a watershed
basis and there is possibly some potential for that kind of a scheme on this
property; indicating that it is just too soon to say that it is going to work
and to approve the Zoning and the Official Plan has the risk of creating
expectations that may not be able to be realized; advising that the UTRCA is not
a big fan of the holding provision, because we think that we really should
hold off on the zoning amendment until we have the decision or the
information in front of us to establish the principal of development;
advising that the UTRCA still has some outstanding concerns regarding the
woodlands significance that we would like to work through; advising that, on
the issue of creating expectations by separating the Zoning and the Official
Plan, the applicant has said please do not approve the zoning; however, we
would suggest that you keep the Zoning and the Official Plan together for the
same reasons that the Committee would not approve the Zoning tonight; noting
that the Committee might not want to approve the Official Plan; realizing
that approving the Official Plan gives the applicant some certainty that the
City is interested in an Office designation, which is a nice message; noting
that, by separating the Official Plan and the Zoning, you get two processes running,
which is a bit unusual; indicating that he would encourage Mr. Bierbaum to
keep the Zoning and the Official Plan together because you can create
expectations; noting that if the Official Plan designation is passed, with
the Open Space that currently exists on the property and, if the property is redesignated
to an Office designation, there is the potential to run into the problem that,
if none of the site is developable, you have to undo that designation later;
advising that a little bit more time to work out these issues is warranted;
advising that when he is talking about working out the issues, we have to be
clear that, looking at this catchment and looking at filling a single
privately held property that is currently not developed and currently not a
problem that we already have and that we want to address, is extraordinary
and is not consistent with Policy; noting that, that does not mean that it
cannot be done, but we would need to really consider what the needs in the
subwatershed are, we would really need to look closely at the other
alternatives in the Subwatershed Study and we would need to consider if the
public infrastructure needs for that fill can be met; indicating that it is not
unlike what we have talked about with the reach analysis for the hydro lands;
noting that the reach analysis for the hydro lands is to address an existing
problem and to allow an extraordinary exception to policy to allow filling on
a property, but if we don’t allow filling on that property and bury our heads
in the sand the problem remains; indicating that the difference with this
property is that it may be a candidate for filling and we can look at it
through a process, but this problem does not exist yet; advising that, we are
saying to the Committee, to please take the time to confirm whether or not
there is a problem, how big the problem is and whether or not Mr. Bierbaum’s
property can be developed with some fill and looking at the impact on
neighbouring properties and City infrastructure; indicating that other
properties that are in the same boat in the watershed and need to be
considered because if you create a precedent for one and you allow filling in
the floodway believe me, the floodgates will be at the front desk of the
UTRCA; confirming that the UTRCA has the regulatory authority; reiterating the
UTRCA’s concern is that the Subwatershed Study is in draft form and it is
very premature to approve a planning application on the basis of one
alternative from an incomplete Study that promotes filling; indicating that
is not actually in the City mandate to make that decision, but we certainly
work closely with the City and we know each other’s policies; advising that
it is within the UTRCA mandate to make that decision; reiterating that it is
not consistent with the Provincial Policy, Conservation Authority Policy or
the flood plain policies of the City; advising that the UTRCA role, with
planning application review with the City, is that we provide you advice on
the application when it comes to natural hazards under the Provincial policy
and how it relates to our regulatory authority will manifest itself at the
later stage; advising that we provide you with our advice at the front end of
the decision making process so that the City can satisfy itself that it is
fulfilling its obligation to be consistent with the Provincial Policy
Statement; indicating that this is the Committee’s decision as the Committee
is the decision maker on this Planning Act application; reiterating
that the advice that we give you, in a case like this, where we say that it
is not consistent with the Provincial Policy Statement to approve an
application that contemplates development in the floodway, you have to
satisfy yourself whether or not you can realize Provincial policy that we
have just said that we just advised you that we do not think that you can meet;
indicating that we would also advise you, in a case like this, that we also
would not be prepared to issue a permit for filling; indicating that, in the
case of this specific site, the current configuration of it, on the basis of
the Mud Creek project that we have before us, suggests that this is a
candidate for filling which is a ray of hope for the developer; expressing
the greatest respect for Delcan, this is not our first rodeo when it comes to
filling; noting that we have done a program for conservation authority
regulations for fill in the flood plain since the late 1970’s; indicating
that it is ok to pick out three properties and fill them but you have to have
reasons why you can say to the other 15,000 or 12,000 or 8,000 properties in
that catchment, why they are not candidates for filling; advising that we had
better have that package together and it had better be tight; advising that our
position is that there may be an opportunity for Mr. Bierbaum’s property, or
Bluestone’s property, to be filled; indicating that we fully support the
systems approach, but we need to walk this decision through a decision making
process like an environmental assessment where all of the options are
considered in the public interest; advising that this is what we are
attempting to realize in the end; noting that we did that for Pottersburg
Creek and for Stanton Drain; however, we have not done that here; indicating
that, in the absence of that process, the property is not developable, but I
think that it is not hopeless; advising that the relationship between the
UTRCA and the City is a legislative relationship, even though the UTRCA has
not exercised that relationship in the past; noting that it is a much more
cooperative process; and advising that Mr. Bierbaum understands that this
property is highly constrained which puts them in a difficult position. (2013-D14A)
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