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7. Mediated settlement of the appeal Of Official Plan Amendment 72 -
PARKLAND Dedication règlement par
médiation de l’appel de la modification au plan officiel NO 72 –
affectation de terrains à la création de parcs |
That
Council:
1. Confirm
the results of the mediation and amend the Parkland Dedication By‑law 2009-95
as identified in Document 1,
2. Approve the submission of
the modification to Official Plan Amendment No. 72 set forth in Document 2 to
the Ontario Municipal Board , and
3. Direct
staff to apply the changes to the Parkland Dedication By-law 2009-95
retroactively to all development approved since the passing of the Parkland
Dedication By-law.
RecommandationS DU Comité
Que Conseil :
1.
confirme les résultats de la
médiation et de modifier le Règlement 2009-95 sur l’affectation de terrains à
la création de parcs, tel qu’il est indiqué dans le Document 1;
2.
approuve la soumission de la
modification au Plan officiel no 72 de la Commission des affaires
municipales de l’Ontario, tel qu’il est indiqué dans le Document 2;
3. enjoinde
le personnel d’appliquer les modifications au Règlement 2009-95 sur
l’affectation de terrains à la création de parcs de façon rétroactive à tous
les aménagements approuvés depuis l’adoption dudit Règlement.
Documentation
1.
Deputy
City Manager's report, Infrastructure Services and Community Sustainability,
dated 19 October 2009 (ACS2008-ICS-PGM-0189).
Planning
and Environment Committee
Comité de l'urbanisme et de l'environnement
and Council / et au Conseil
19 October 2009 / le 19 octobre 2009
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 : Richard Kilstrom,
Manager/Gestionnaire, Policy Development and Urban Design/Élaboration de la
politique et conception urbaine, Planning and Growth Management/Urbanisme et
Gestion de la croissance Élaboration de la politique et conception urbaine
(613)
580-2424 x22653, Richard.Kilstrom@ottawa.ca
That Planning and Environment Committee recommend
that Council:
1. Confirm the results
of the mediation and amend the Parkland Dedication By‑law 2009-95 as
identified in Document 1,
2. Approve the submission of
the modification to Official Plan Amendment No. 72 set forth in Document 2 to
the Ontario Municipal Board , and
3. Direct
staff to apply the changes to the Parkland Dedication By-law 2009-95
retroactively to all development approved since the passing of the Parkland
Dedication By-law.
Que le Comité de l’urbanisme et de l’environnement recommande au
Conseil :
1.
de confirmer les résultats de la
médiation et de modifier le Règlement 2009-95 sur l’affectation de terrains à
la création de parcs, tel qu’il est indiqué dans le Document 1;
2. d’approuver la
soumission de la modification au Plan officiel no 72 de la
Commission des affaires municipales de l’Ontario, tel qu’il est indiqué dans le
Document 2;
3.
d’enjoindre le personnel d’appliquer
les modifications au Règlement 2009-95 sur l’affectation de terrains à la
création de parcs de façon rétroactive à tous les aménagements approuvés depuis
l’adoption dudit Règlement.
Council enacted the Parkland Dedication By-law 2009-95 on March 11, 2009, being a by-law for the conveyance of land or the payment of money in-lieu of land for parks and public recreational purposes.
Since adoption of the new Parkland Dedication By-law, the application of its provisions by staff to infill residential projects has highlighted some inequities in the amount of parkland, particularly the value of the cash-in-lieu of parkland conveyance that is required. A change to the payment of cash-in-lieu of land conveyance is proposed to address the identified issue.
At the same time Council also adopted Official Plan Amendment No. 72 that modified the parkland policies of the Plan to clarify how parkland dedication would be achieved. Urbandale Corporation and the Greater Ottawa Home Builders Association appealed Official Plan Amendment No.72. A mediation hearing before the Ontario Municipal Board resulted in a settlement of this appeal and includes recommended modifications to the Parkland Dedication By-law.
This report proposes amendments to the Parkland Dedication By-law 2009-95, as shown in Document 1, and to Official Plan Amendment No. 72, as shown in Document 2, to incorporate the recommendations of the mediation hearing and to address issues with the application of the Parkland Dedication By-law.
DISCUSSION
The issues that formed the basis of the appeal to Official Plan Amendment No. 72 were refined in the mediation process and were also directly related to the issues staff identified through the application of the Parkland Dedication By-law. The issues and proposed means of settlement are summarized below:
1. The Parkland Dedication By-law can require so much parkland or cash-in-lieu that many medium density residential and small infill projects become uneconomic. The appellants requested that the City cap parkland dedication to 10 per cent of the site area for all residential uses.
2. There is no provision in the Parkland Dedication By-law for resolution of disputes with respect to appraised value of land for the purpose of cash-in-lieu payments.
3. The By-law is too narrow in definition of what land is suitable for parkland conveyance.
4. There is disagreement as to how parkland is assessed for retirement homes.
5. The need for the provision of adequate advance notice to the development industry of any consideration to amend the Parkland Dedication By-law.
6. There is no mechanism identified in the Parkland Dedication By-law to resolve or compensate for over-dedication where the actual development densities are less than those foreseen at the time of subdivision approval.
The above issues, followed by their means of settlement, are discussed in more detail below:
Issue 1 -
Parkland requirements for residential development
The City's Parkland Dedication By-law applies the 'alternative requirement' for parkland conveyance as permitted by the Planning Act to all residential development that is developed at densities higher than 18 units per net hectare. The 'alternative requirement' permits the municipality to require the conveyance of up to one hectare of parkland for every 300 new dwelling units. This is equivalent to 33 square metres of land for every new dwelling. The By‑law also caps the parkland required for projects involving apartments to no more than 10 per cent of the land area or value of the site being developed.
Much of the infill development inside the Greenbelt is composed of small-scale, ground-oriented projects that are not considered apartments. These projects often exceed the density of 18 units per net hectare and the conveyance of 33.3 square metres of land per unit is required. More often this parkland requirement is taken as cash-in-lieu of land. Parkland at this rate can represent a significant financial obstacle to the viability of many projects and staff have experienced some circumstances where payments represent 30 per cent of the value of the site being developed.
This came to the attention of staff immediately after the adoption of the Parkland Dedication By‑law and was an unanticipated consequence of the new approach used to calculate parkland requirements. While the by-law seeks to secure a reasonable amount of open space for park and recreational purposes in communities that do not have significant park resources, it works against the City's desire to encourage small-scale intensification and infill within neighbourhoods.
The development industry expressed the same concern for larger infill projects and requested that a similar cap, as is currently applied to apartments, be applied to all residential development. This would mean that all residential development would only ever have to contribute to a maximum of 10 per cent of the land area as park or as cash-in-lieu of land.
Reducing the parkland requirement city-wide to address these intensification and infill issues raises problems for the building of the City's new communities where land conveyance is possible and desirable. An across-the-board reduction in the parkland requirement as requested would mean that the park requirements as planned in these new communities would never be realised.
Through mediation discussions, both sides agreed that in areas covered by community design plans ("CDP") and Council-approved concept plans where new parks are identified at the planning stages, parkland at one hectare for 300 units is reasonable. A compromise solution to address infill applies the 10 per cent cap to all residential development where cash-in-lieu of land is required. This would provide the sought-after relief for the infill and intensification projects, but still ensure the delivery of planned parks in new communities and larger greenfield parcels undergoing development. To make the conveyance of parks in community design plan areas more effective, the appellants requested that the City should also:
Staff considers these additional requests as reasonable.
As part of the agreement reached between the parties and presented to the mediator to address issue 1, the following actions are recommended to Council:
1. Amend the Parkland
Dedication By-law to cap cash-in-lieu payments for all residential uses to 10
per cent of the value of the land developed. This would not apply to lands
subject to a community design plans ("CDP") or a council approved
concept plans except where these plans do not address the parkland dedication
and identify new parks. This cap will
not apply where land conveyance is required. The proposed amendment to the
By-law can be found in Document 1 item 4 that adds a new clause 12 limiting the
cash-in-lieu required for residential development.
2. Where in a redevelopment
or infill situation, the City requires land instead of cash-in-lieu and the
land exceeds 10 per cent of the value of the land, and where requested to do so
by the developer, the City will provide a written rationale for the requirement
for land within 15 days. The proposed amendment to the By-law can be found in
Document 1 item 4 that adds a new clause 12.
3. To facilitate parkland
provision in community design plans (“CDP”) or areas subject to
Council-approved concept plans, at the alternative rate of one hectare per 300
dwelling units, a policy will be inserted into OPA 72 requiring a "
developer's agreement" or similar mechanism to ensure that the parkland
requirements established in the CDP are achieved. The proposed amendment to
Official Plan Amendment No 72 can be found in Document 2.
4. The City will maintain the
current parkland provisions for apartment dwellings city-wide that caps
parkland at no more than 10 per cent of the site area being developed and will
consult with the development industry if a change is considered. No change to the by-law is required. Note
that recommendations below ensure that the development industry is notified if
future changes to this provision are proposed.
Because these changes refer to community design plans and Council-approved concept plans when a number of other Council-approved planning documents, such as secondary plans, may also be relevant, the technical changes only refer to community design plans which are defined by a new definition added at the beginning of the by-law. The proposed definition can be found in Document 1 item 1.
Issue 2 -
Providing a dispute mechanism
The Parkland Dedication By-law does not include a mechanism whereby a landowner can challenge the appraisal value used by the City to establish the cash-in-lieu payments. The Planning Act provides that an owner who challenges the payment required can pay under protest and then appeal to the Ontario Municipal Board. The appellants requested that City provide a less confrontational mechanism that can be accessed first in order to resolve the matter. Staff agrees and proposed such a mechanism during the consultation process for the Parkland Dedication By-law but this was not included in the by-law adopted by Council. Staff recommends the inclusion of such a provision in the by-law.
As part of the agreement reached between the parties and presented to the mediator to address issue 2 the following action is recommended to Council:
Resolution 5 supported by Staff
A change to the Parkland Dedication By-law will provide a dispute
process that gives a landowner, who disagrees with the land value used by the
City, an opportunity to obtain an independent appraisal and submit that
appraisal to the City for consideration. If the City does not agree with the
second appraisal the landowner can pursue the appeal process established in the
Planning Act. The proposed amendment to the By-law can be found in Document 1
item 5 that adds new clauses 22 and 23 related to disputes.
Due to the 30-day time limit in the Planning
Act for appealing in the instance a dispute over parkland, there may be
instances where a developer will have to appeal to preserve its rights while
efforts are being made to resolve the issue.
Issue 3-
Suitable land for park purposes
The Parkland Dedication By-law indicates that not all land offered to the City is acceptable as parkland. Less suitable lands include hazard lands such as ravines and floodplains, environmental land where the intention is to preserve natural features rather than provide recreational opportunities, and land that is intended for other purposes or restricted in its use. The wording of the By-law leaves some room for discretion to accept these lands where circumstances warrant. The By-law provides less discretion in regard to land that is conveyed to the City at the time of development for stormwater management facilities, for flood plain or conservation purposes, and for roadways, walkways or other non-parkland purposes. These conveyances will not be accepted as satisfying a parkland requirement. The appellants believe that there should be some discretion to consider lands conveyed to the City for pathways as satisfying some parkland requirements.
Section 51(25) of the Planning Act provides for the conveyance of "…highways, including pedestrian pathways, bicycle pathways and public transit rights of way, be dedicated as the approval authority considers necessary". This right to require conveyance of pathways is separate from the conveyance of parkland. Accepting pathways can significantly reduce the land conveyed for parks particularly in new communities. For this reason staff generally does not support the acceptance of pathways as part of the parkland conveyance. However, there may be a circumstance where land for a pathway may be considered, such as when no other parkland is available and a pathway connection is needed. In order to provide some discretion, but to avoid the erosion of the park provision in new communities staff are recommending the rewording of Section 5 of the Parkland Dedication By-law to provide the discretion requested by the appellants yet ensure that pathways will not be taken as a matter of course, nor will reduce parkland taken in new communities.
As part of the agreement reached between the parties and presented to the mediator to address issue 3 the following action is recommended to Council:
Resolution 6 supported by Staff
The wording of Section 5, Conditions of Land Conveyance, in the
Parkland Dedication By-law has been reworded to clarify that the General
Manager of Planning and Growth Management has discretion to accept pathways as
satisfying park needs. The proposed amendment to the By-law can be found in Document
1 item 3 that makes a wording change to the existing clause 6 to refer to
walkway blocks and adds a new clause 7 that provides discretion in regard to
pathways. This discretion would be
unavailable where pathways are not shown as parkland in community design plans.
Issue 4-
Parkland requirements for retirement homes
This issue is linked to a specific project in which Urbandale has an interest but also impacts other development projects. The City consistently assesses retirement homes that include units providing independent living as dwelling units similar to apartments and applies the residential parkland requirement. Other units in the complex that provide nursing home services are usually assessed at the lower commercial rate. The appellants question this practice and they have requested that the City provide a more detailed basis for this approach. Staff have no concerns in providing this information to the appellants and resolution of this appeal is not dependent on this matter.
As part of the agreement reached between the parties and presented to the mediator to address issue 4 the following action is recommended to Council:
Resolution 7 supported
by Staff
The City staff provide an
analysis as to how the Development Charge by-law and the Parkland Dedication
by-law will be applied to retirement homes. Such analysis shall be provided to
Urbandale Corporation and the Greater Ottawa Home Builders Association by the
end of May 2010. No amendment to the By-law is required.
Issue 5 -
Providing advance notice concerning changes to parkland policies
The appellants wish to be notified and given enough time to review future changes to the parkland rates, and if they deem necessary, seek a modification to the Official Plan, before Council adopts them:
As part of the agreement reached between the parties and presented to the mediator to address issue 5 the following action is recommended to Council
Resolution 8 supported
by Staff
Amend the Parkland Dedication By-law to provide for 12 months notice of any consideration by Council to change provisions in By-law 2009-95 and to provide specific notice to the Greater Ottawa Home Builders Association and Urbandale Corporation of any proposed changes to the 10 per cent cap for apartment dwellings. The proposed amendment to the By-law can be found in Document 1 item 5 that adds a new clause 24 dealing with By-law review.
Issue 6 -
Parkland based upon highest use and over-dedication of land
Official Plan Amendment No. 72 contains a policy direction that the City will assume the highest potential use in order to calculate parkland requirements in situations where the ultimate development for a mixed-use site is not known. This often happens at the time land is subdivided and when it is important to secure park sites. However, little may be known about what will be developed on some blocks at this stage of development. This approach ensures that sufficient land is conveyed but can often lead to over-dedication of land when the development is less intensive than the maximum permitted. The development industry argues that parkland should be based upon more realistic estimates of the ultimate development and that the by-law should identify how the City will address the issue of over-dedication of land should this occur.
As part of the agreement reached between the parties and presented to the mediator to address issue 6 the following action is recommended to Council:
Resolution 9 supported
by Staff
The Parkland Dedication
By-law is modified to ensure that where development occurs outside of Community
Design Plans and Council-approved concept plans, the City will provide for
adjustments where the actual development varies from that assumed at the time
of subdivision. It is recognised that there are a number of ways this
adjustment can be accommodated and the City undertakes to negotiate a mutually
agreeable solution with the landowner. The proposed amendment to the By-law can
be found in Document 1 item 2 that adds new clauses 5 and 6 dealing with
over-dedication.
The recommended changes to the Parkland Dedication By-law and Official Plan Amendment No. 72 were negotiated at the mediation hearing involving the parties to the appeal only. The resolutions recommended in this report have been discussed with staff of the Planning and Growth Management Department and the Parks, Recreation and Cultural Services Department.
Adoption of the changes identified in Documents 1 and 2 will implement the settlement that is being recommended by staff as a result of the mediation. Should the settlement not be endorsed, Official Plan Amendment No. 72 will proceed to be considered at a full Ontario Municipal Board hearing.
Applicants that have been subject to the payment of cash-in-lieu of the conveyance of parkland since the new Parkland Dedication By-law was adopted have been advised to pay in protest. It is intended that the proposed changes to the payment of cash-in-lieu recommended by this report will be implemented retroactively and provide those applicants with a refund of the difference between the adjusted charge and the amount that was paid in protest under the present calculation.
In future the changes may result in less money accumulating in the parkland accounts. However, since continuing with higher parkland requirements may discourage development, the magnitude of this reduction is difficult to estimate.
Document 1 Proposed changes to Parkland Dedication By-Law 2009-95
Document 2 Proposed changes to Official Plan Amendment No. 72
Legal Services to bring forward the amending by-law to implement the changes to the Parkland Dedication By-law 2009-95 recommended by this report.
The City Solicitor will submit the approved modification to the Ontario Municipal Board for the Board’s formal approval.
PROPOSED CHANGES TO PARKLAND DEDICATION
BY-LAW
2009-95 DOCUMENT 1
Proposed Changes to Parkland Dedication
By-law 2009-95
“community design plan” means a comprehensive land use and infrastructure planning exercise that applies the principles of the City’s Official Plan in more detail to specific areas of the city undergoing growth or change and provides for the location of specific land uses and the co-ordination and provision of infrastructure and services. “Community design plans”, “Council-approved concept plans”, special policy areas in the Official Plan and Secondary Plans to the Official Plan have the same meaning for the purpose of this by-law.
OVER AND UNDER DEDICATION
“5. In areas subject
to a community design plan that contains provisions for the conveyance of new
parkland based upon a planned population, the City is under no obligation to
provide compensation for any over dedication of land due to failure to achieve
design densities.
6. Where land being developed is not subject to a community design plan that contains provisions for the conveyance of new parkland, and the ultimate development of the land is different than that which was anticipated and relied upon for a previous land conveyance or payment, the City will negotiate a mutually agreeable adjustment with the landowner to reflect the parkland requirements of the actual development.”
“7. In areas not subject to a community design plan that contains
provisions for the conveyance of new parkland the General Manager has
discretion to consider crediting pathways conveyed as part of a development
proposal where no other suitable parkland can be conveyed.
“12.
Where land is being developed or
redeveloped for residential purposes and it is not subject to a community
design plan containing provisions for the conveyance of new parkland the following
provisions shall apply:
a)
Where the City does not require the conveyance of
land the payment of money-in-lieu of the conveyance of land will not exceed an
amount equivalent to 10 per cent of the value of the land area of the site
being developed.
b) Where the City
requires the conveyance of parkland and the conveyance exceeds 10 per cent of
the area of the site being developed, the City will provide a written rationale
for the land requirement within 15 days of being requested to do so by the
landowner.
22. Where there is a disagreement with the
land value used to establish the payment of money-in-lieu of parkland
conveyance, the applicant may request a review of the valuation by an
independent appraisal. This appraisal
will be undertaken at the applicant’s expense and the City will review and
determine if this appraisal is acceptable.
23. If there is no agreement between the City
and a landowner as to the amount of land required to be conveyed or the amount
of the money-in-lieu of land that must be paid, either party may apply to the
Ontario Municipal Board to have the matter determined pursuant to Sections
42(10 and 11) of the Planning Act.
BY-LAW REVIEW
24. The City will provide 12 months written
notice to the development industry of any intention to modify the parkland
dedication or money-in-lieu of land provisions in this by-law. In addition the
City will provide notice to the Greater Ottawa Homebuilders Association and
Urbandale Corporation at least eight months prior to adopting any revisions to
the 10 per cent cap applied to money-in-lieu of land in clause 12 above.”
Proposed changes to Official Plan Amendment No. 72
Modify Section 2.5.4 A Strategy for Parks and Leisure Areas by inserting a new policy after Policy 2 as follows:
“3. When
approving new community design plans or concept plans for the development of
land and the provision of parks in areas involving a number of land owners, the
City may require an agreement among all the landowners that ensures the timely
conveyance of parkland in accordance with the approved community design plan or
concept plan.”