1. REQUEST FOR TEMPORARY OUTDOOR PATIO ENCROACHMENT - 180 MACLAREN STREET

demande d’empiètement temporaire pour une terrasse extérieure – 180, rue MacLaren

Committee Recommendation as amended

That Council approve waiver of the residential encroachment provisions of By-law-446 to allow for an outdoor patio at 180 MacLaren Street as outlined in this report, as amended to ensure that the patio close at 11:00 p.m. and that there be no outdoor sound amplification.

Recommandation modifiÉ DU Comité

Que le Conseil approuve une dérogation aux dispositions du Règlement 446 sur les empiètements relatifs aux propriétés dont le zonage est résidentielle, en vue de permettre l’aménagement d’une terrasse extérieure au 180, rue MacLaren, comme le décrit le présent rapport, et tel que modifié pour s’assurer que la terrasse ferme à 23 h et qu’il n’y ait pas d’amplificateur de son à l’extérieur.

Documentation

1. Deputy City Manager’s Report, Infrastructure Services and Community Sustainability dated 5 November 2010 (ACS2010-ICS-PGM-0213).

2. Extract of Draft Minutes, 17 November 2010.

Report to/Rapport au :

Transportation Committee

Comité des transports

and Council / et au Conseil

05 November 2010 / le 05 novembre 2010

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 : Linda Uhryniuk, Senior By-law Administrator

Planning and Growth Management/Urbanisme et Gestion de la croissance

(613) 580-2424 x 16049, Linda.Uhryniuk@ottawa.ca

Somerset (14)

Ref N°: ACS2010-ICS-PGM-0213

SUBJECT:	REQUEST FOR TEMPORARY OUTDOOR PATIO ENCROACHMENT - 180 MACLAREN STREET
OBJET :	demande d’empiètement temporaire pour une terrasse extérieure – 180, rue MacLaren

REPORT RECOMMENDATION

That the Transportation Committee recommend Council approve waiver of the residential encroachment provisions of By-law-446 to allow for an outdoor patio at 180 MacLaren Street as outlined in this report.

RECOMMANDATION DU RAPPORT

Que le Comité des transports recommande au Conseil d’approuver une dérogation aux dispositions du Règlement 446 concernant les empiètements relatifs à des propriétés dont le zonage est résidentiel afin de permettre une terrasse extérieure au 180, rue MacLaren, tel que décrit dans le présent rapport.

BACKGROUND

At the Transportation Committee meeting of 1 September 2010 staff was directed to review an application for temporary encroachment at 180 MacLaren Street, and to notify the Ward Councillor, the owner and the surrounding community. These findings and the results of the public circulation are included in this report.

DISCUSSION

In November 2006, the owner of 180 MacLaren Street made an application for an outdoor patio on the MacLaren Street southside inner boulevard just east of Elgin Street. In accordance with Encroachment By-law 2003-446, which requires that outdoor patio encroachments conform to the zoning requirement for a separation of 30 metres from property zoned as residential, staff denied the application.

Subsequently, the applicant asked the Ward Councillor to support a waiver of this provision of the Encroachment By-law. Residents and property owners within 90 metres of the location were notified of the application and, as a result of the number of objections received, the Councillor did not present the application to Transportation Committee for a waiver of the by-law.

The applicant recently has approached Transportation Committee directly, requesting review of the application, hence the motion of 1 September 2010.

The location of the proposed outdoor patio encroachment is the MacLaren Street inner boulevard, between the sidewalk and the building, approximately six metres from the southeast corner of MacLaren Street and Elgin Street. Currently, the inner boulevard is an unused area with an interlocked brick surface (Document 1). The proposed size of the patio is 3.2 metres in width and 22.4 metres in length (Document 2).

The outdoor patio is proposed to operate seasonally from April to September, with all encroachments removed completely from the road allowance in the winter season, from 15 November to 1 April. Standard conditions of these types of permits require that no music may be permitted on the patio. In addition, the patio at this location would be required to close each night by 11PM. This is a standard condition for outdoor patios operating within 30 metres of a property zoned residential.

As part of the review, no objections were received in response to an internal circulation and a utilities circulation.

In summary, the application meets City standards and all requirements of the Encroachment By‑law save the separation requirement for which waiver would be required as the proposed patio would be within 30 metres of property zoned residential.

RURAL IMPLICATIONS

N/A

CONSULTATION

The Ward Councillor had circulated a notice to the residents of 150 MacLaren Street prior to the committee meeting in September. As directed by Committee in September, over 900 notices were mailed to all residents and residential property owners within 90 metres of the location.

The responses are summarized in Document 3. Eighty-nine responses were received, with 71 opposed and 18 in support of the application. Results of the circulation have been provided to the Ward Councillor and the applicant.

A similar circulation in 2007 resulted in 20 objections and four favourable responses.

An additional 381 responses in support of the application were compiled and submitted by the applicant. Approximately half of the responses are from residents of the area.

COMMENTS BY THE WARD COUNCILLOR

Councillor Holmes is opposed to this item being considered by the Committee, as it is a circumvention of the usual process. Consideration of the proposal in this manner opens the door to similar applications without the appropriate discussion and sensitivity to this as a local ward issue.

Councillor Holmes recognizes that the lack of an appeal process is frustrating for the applicant and considers it appropriate to delay any decision on this matter pending staff recommendations regarding a comprehensive review of the Encroachment By-law.

LEGAL/RISK MANAGEMENT IMPLICATIONS

There are no legal/risk management impediments to receiving this report.

CITY STRATEGIC PLAN

N/A

TECHNICAL IMPLICATIONS

N/A

FINANCIAL IMPLICATIONS

There are no direct financial implications associated with this report.

SUPPORTING DOCUMENTATION

Document 1 Photo - Inner Boulevard of southeast corner of MacLaren Street and Elgin Street

Document 2 Outdoor Patio Design - 180 MacLaren Street

Document 3 Summary of Responses - Community Circulation October 2010 and a Councillor Circulation Prior to Motion for 180 MacLaren Street

DISPOSITION

There will be no further action by staff at this time unless directed by Committee or Council. Should the application be approved, staff will provide an approval letter and issue annual permits for the location.

PHOTO - INNER BOULEVARD, SOUTHEAST CORNER OF

MACLAREN AND ELGIN STREETS DOCUMENT 1

OUTDOOR PATIO DESIGN – 180 MACLAREN DOCUMENT 2

SUMMARY OF RESPONSES - COMMUNITY CIRCULATION

OCTOBER 2010 AND A COUNCILLOR CIRCULATION PRIOR

TO MOTION FOR 180 MACLAREN DOCUMENT 3

Seventy-one responses noted objection, with the following reasons (number of comments):

· There are enough bars and patios in this area already  5

· There is already enough late night noise  19

· Already enough noise in the summer  3

· Another outdoor patio will increase the noise  16

· There are noisy, drunk pedestrians on the street 7

· There are noisy, drunk pedestrians crossing Somerset Corkstown Bridge 4

· Feel unsafe due to noisy and belligerent drunken patrons 2

· There will be smoking near the crosswalk and residences 1

· The area is already used as the Sens Mile 1

· Residents wish for residential quiet in the area 4

· The patio would provide no benefit to residents of the area 1

· There is already a parole office in the area 1

· Do not want commercial activity to extend into the neighbourhood 1

· Will limit space on the sidewalk  1

· Will be an eyesore 1

· There is not enough enforcement for noise and drunkenness 3

Eighteen submissions noted support, with the following reasons:

· Fairness – the owner should be allowed the same as other in the near vicinity 3

· City should support businesses, not restrict them 1

· Noise is a known factor in the downtown area and adjacent to bars 1

· Have never been disturbed by noise of talking or laughter from patios 1

· Welcome people chatting and enjoying themselves and adding life and vibrancy to the urban landscape 1

· Would add to the wonderful vibrant atmosphere on Elgin Street 5

· Patios are popular – their good use reflects the number who support them 1

· One more patio will not create additional adverse effects to those imposed by other outdoor patios and restaurants on Elgin, including noise 2

· Residents who love the outdoors will enjoy the patio 2

· Presence will increase street safety in the evenings 1

• Get with the times! 1

REQUEST FOR TEMPORARY OUTDOOR PATIO ENCROACHMENT - 180 MACLAREN STREET

demande d’empiètement temporaire pour une terrasse extérieure – 180, rue MacLaren

ACS2010-ICS-PGM-0213 SOMERSET (14)

Councillor Holmes explained that this matter has been in the works for some time. There was an application years ago about 7 years ago to have this encroachment on the public right-of-way established for this establishment and because it is within 30 m of a residential zone, the by-law says it cannot be established. She remarked that it is in fact within 16 m of a residential zone and notwithstanding that it was so close, she agreed to circulate it to see whether residents would or would not be opposed to this patio. At that time, the majority response was in opposition to this particular patio application. Usually there is no discussion if the patio is within 30 m of a residential zone and this one being so close to residences and on a street of quite high density, it was clear that the people who lived in the area were opposed to the application. Now, the applicant has come forward to this Committee asking for a waiver to the by-law so he can establish a patio at his business. She remarked there were 89 responses to the City’s circulation, 71 opposed and 18 in favour. A very strong response of people living in the area to this particular circulation.

Gérard Deschênes, resident, 150 MacLaren Street explained that he has lived at this location since 1985 and over the last 25 years, the atmosphere in the neighbourhood has changed. More and more establishments, bars and patios in the summer. With progress come some inconveniences; more traffic and noise on Elgin Street, especially on the neighbouring streets and certainly more since the creation of Senator’s Mile. He indicated that in August 2007 he stated his opposition to the request for an encroachment for a patio at 180 MacLaren Street and his response is part of the 71 referenced in the report. He understood the applicant feels there is other patios close by but the approval of this patio will have an impact on the quiet life of the neighbourhood. He believed the process has created a lack of transparency and trust in the current process and therefore he supported the position of the ward councillor in opposition to this waiver. He wondered what the urgency was of approving this application now and why the Committee would not wait until the results of the comprehensive review are completed, as suggested by the ward councillor in the report. He suggested waiting for the results of the study in order to set up parameters and make a decision that is fair and equitable for this pub and others.

Councillor Holmes inquired if he ever got a good night’s sleep and the delegation indicated that he does not always. He added that some of the bars on Elgin Street have karaoke and at times their windows are open and the sound spills out. There is also a lot of noise on the street in the late hours after the bars close. Air conditioning and ear plugs help to block out the noise.

Councillor Legendre inquired how far the delegation lived from the proposed patio and was informed that he lived in an apartment building adjacent to the Business Inn at the corner of Elgin and MacLaren. When asked about the study he referred to being completed prior to approving this application, Mr. Deschênes explained that it is referenced in the report. Valerie Bietlot, Legal Counsel, confirmed that this was the direction provided by the Committee on 1 September, to have staff come back early in 2011 following a comprehensive review of the Encroachment By-law as it relates to patios, with recommendations on the challenges that this by-law poses and some improvements to simply the process. John Moser, General Manager, Planning and Growth Management confirmed he would be reporting back the first quarter of 2011 on that review.

Having received that detail, the councillor indicated his intention to bring forward a Motion to request that this particular request await that report. He was also seeking assurance that the report would address such matters as the adequacy of the distance from the residential zone. Mr. Moser confirmed the review would include all the elements.

Councillor Bédard commented that he represents a ward where similar concerns are raised and he acknowledged that there are often conflicts between the businesses and residents. He asked if the delegation was aware of any other bar patios that are 30 m from the residential zone in the city. Mr. Deschênes indicated there were a few on Elgin but could not recall all the names. He noted one patio also is on the roof of the establishment and there are residences within that building as well as adjacent to it. He offered that the Lieutenant’s Pump and Poncho Villa, located further along Elgin Street also have outdoor patios and residents are immediately adjacent to these establishments. The councillor Bédard recognized the same concerns in his ward.

Councillor Holmes indicated that one of the bars the delegation alluded to was the Fox and Feather and there are two other bars further down the way. She explained that those are located on private property and are not located on the City’s road allowance. Therefore different rules apply and they do not enter into the encroachment by-law matter and therefore do not compare.

David Gladstone indicated that the Centretown Citizen’s Community Association met last night and approved a Motion opposing this proposed patio. He expressed concern about the proximity of the patio to the existing fire hydrant at the corner. He felt this was a safety issue. Also, sight lines were important and the impact on these as a result of the patio should be considered. He explained that the corner is extremely opaque corner but is heavily used by all users and currently this City-owned right-of-way is used to enhance community safety because it is empty and people can see around the corner to see what is coming very easily. He felt that unless there is a qualified professional opinion on that subject, then the Committee should not be taking a position on this. He questioned why the City would be approving something that will cause more noise in addition to the already noisy conditions from existing establishments in the area. He felt those areas need to be addressed before the City can take a position on this matter.

Matt McGrath, resident, MacLaren Street explained that people who have moved into this area and intend to stay there paid a lot of money for the location and yet here is a business making an application to get free access so they can make a patio outside. The people who have moved into that area and the people who occupy the hotel do so because it is convenient to uptown and it is a quiet residential area. He opposed any recommendation that would allow a business to encroach for free on City property. The people who bought knew what they were getting and now this person is going to upset the whole neighbourhood. We don’t need any more pubs there. He believed that even if they agreed not to play music or stay open past a specific time, they would very soon be back to the City asking to stay open longer and to play music. He offered that there were so few delegations speaking against this proposal because many people had to work and so he felt he was representing a lot of residents in the area.

Responding to the delegations concerns about an encroachment being given for free, Councillor Bédard explained that the City would charge a fee for the encroachment permit. Mr. McGrath was aware there are fees applicable, but explained there is no indication that these fees are even necessary so he did not know how that fee would be established, i.e., will the City charge $50,000 or more for the property? He felt that fee should be set out clearly. The councillor explained that the City has a policy on setting fees depending on the amount of square meters required and he indicated this would apply to this particular establishment. Linda Uhryniuk, Senior By-law Administrator (East) advised that the fee would be $1.25 per square metre per day and it would be about 40 square meters for this location.

Councillor Holmes asked how long he had lived in his present location and Mr. McGrath indicated that he moved to MacLaren Street in 1944. She asked if there was a problem with drunkenness of patrons leaving bars on Elgin Street late at night and the delegation explained that it is a problem because many of them make a lot of noise as they leave. He recognized that it is a sports bar and people cheer loudly at times when games are being televised, but this is very disturbing to residents living nearby.

Councillor Legendre inquired if the fee charged for encroachments is revised each budget cycle and is reflective of property values in the area. Ms. Uhryniuk confirmed it is affected by budget increases each year and she further confirmed that the fee would be part of the comprehensive review staff will be reporting back on early next year.

LiLi Weemen explained that she lives a block away from this establishment. Spoke to the issue of fairness and remarked that the Business Inn, which is owned and operated by the same owner of MacLaren’s on Elgin, is one of the biggest establishments there and they do not pay rent because they own the building. But there are other smaller restaurants that pay thousands of dollars a month in rent and they have to compete.

Brian Karam, owner, MacLaren’s at Elgin referred to the most recent circulation and the staff report, he advised that there were 900 letters sent out to local residents but the actual response to those 900 this time was 17 and then another 190 that he handed in so the number of over 70 includes some earlier ones. In response to a concern raised by another delegation, he pointed out that the hydrant is well outside the proposed patio because the patio is set back quite a bit from the corner. He too was concerned about noise and remarked that there has been no noise complaints from MacLaren’s over the past 15 years.

Councillor Desroches referred to concerns raised that this patio will create noise but understood that with the hotel there, he would also have an interest in ensuring there were no disruptions to patrons of his inn. Mr. Karam concurred with this, adding that he recently refunded a guest because of the disruptive noise caused by live entertainment on Elgin Street. He confirmed the noise in the area is not coming from his establishment. His hotel is a popular destination for many tourists and people visiting the city.

Councillor Bédard noted that one of the issues brought up is that there are other patios in the area that are within 30 m of a residential zone, but that such patios are located on private property and he asked if the delegation was aware of that fact. Mr. Karam explained that some are not wholly on private property, including Mother Theresa’s at Somerset and O’Connor and Bridgehead, which is immediately across the street. Where they are located wholly on private property, the City cannot force them not to have music or to close at 11 p.m.

Councillor Legendre explained that the intent of the Motion he was bringing forward is in regards to the comprehensive review. Given the time of year now and the fact it is unlikely that any patios will be used between now and the end of March 2011, he suggested that should his Motion to await the results of the comprehensive review carry, there would be very little impact on the delay for your application. Mr. Karam disagreed, noting that they have to finish their plans for the patio, apply for a liquor license and tender for the work to be done for the patio to be built by next spring. Therefore, he preferred the Committee deal with this matter now. When asked how long he had been applying for a permit, he that the first time he dealt with a Motion to reconsider an application to consider the patio by-law was in 1988.

Chair McRae stated that this is not a license forever and that should the Committee grant the waiver to the encroachment, the applicant would have to apply again? Ms. Uhryniuk explained that the location is approved and annual permits are issued for the operation and the permits may be revoked. Therefore, the Chair stated that if approved today and the business owner does not comply with the rules of the encroachment, and that was brought to the attention of the City, it is possible that his right to use that space through the permit system could be revoked. Staff confirmed this, with the support of Committee and Council.

The Chair asked if there had been any noise related complaints for music in the past five years at this establishment and Roger Chapman, Program Manager, Enforcement (West) advised that there were no complaints about music. When asked if there were any noise complaints at all in that time period, he advised that there were five complaints since 2005 for MacLarens: three were for car alarms going off in the parking lot and two related to a contractor who was using a leaf blower to clean out the parking lot late at night. He confirmed that such complaints would not be related to the operation of an outdoor patio.

Councillor Leadman recognized that because his is a sports bar, patrons will shout and cheer and she asked if there were any games televised on the outside of his establishment that would elicit that kind of response and what the type of environment would be for the patio. Mr. Karam said they do not televise outside the bar. Their windows do open and there have been no noise complaints. He could not see there would be any change from the current situation and what would be happening on the patio would be much different than inside because there would be no music and it would be closed at 11 p.m. The councillor noted there is that kind of activity going on now when people leaving the bar and Mr. Karam agreed there have been spontaneous responses at times when games are played and sometimes celebrations just happen, but he felt that kind of spirit should be encouraged.

Following on these comments, the Chair asked if Mr. Karam was committed to having no music on the patio if approved and he confirmed he was. He further confirmed that the patio would be open at noon and close at 11 p.m. The Chair noted other patios are open later and Mr. Karam stated some as late as 2 a.m. When asked when the doors of the bar would close, he indicated that depending on the weather, if it is hot or cold outside they are kept closed but if it is comfortable outside that is when they would be opened. In response to one of the complaints referred to by staff re leaf blowing, he clarified that the complaint about the company working there late at night was actually a contractor working on the apartment building next door to his. He allowed them to work from the parking lot in order to reach the balconies.

Councillor Legendre noted that the application was denied in 2006 based on the proximity of the patio to the residential zone and he asked if anything changed in the by-law since that occurred. Ms. Uhryniuk stated there had been no change. When asked why staff has changed their minds now, Nancy Schepers, Deputy City Manager explained that if the applicant came to staff directly they would have said no because of the requirement for a waiver. However, staff was directed by this Committee to come back with recommendations. The councillor noted the staff reaction to conformity to the by-law in 2006 was denied and while the Committee had asked for a recommendation, he would have expected the answer to be the same because it is not in conformity. Ms. Schepers clarified that what is required is a waiver to the by-law for this patio to be approved. The application does not meet the by-law so staff could not facilitate that. However, as a result of the Committee’s direction, staff looked at the operational concerns and the noise complaints and based on the discussion in the Minutes from 1 September 2010, staff could not object to the granting of a waiver based on precedents in the area and based on operational considerations. Had this come through a councillor-raised issue, staff would have supported the waiver and is why they are supportive of it today. She further explained that staff have no ability to bring a waiver in front of Committee and there was discussion at the last meeting on that. It does not meet the by-law so staff do not have the authority to grant a waiver because that can only occur at Committee so staff have no mechanism to bring it here. But, with the direction provided at the last meeting, the Committee made it clear for staff to come back with recommendations, which is what has happened and staff looked at it from a standpoint of whether or not they would object to the waiver and they looked at the operational considerations and they are in a position where they would not object and therefore the recommendation is that the Committee grant the waiver.

Councillor Legendre remarked that in view of the review coming forward in the spring, it would be of assistance to staff and everyone to keep things clear and not having a recent decision going one way and the review potentially going another. He felt it would be best to await the review and have staff consider all the factors including distance, process, et cetera and the come back with a good policy discussion and go forward then. Ms. Schepers advised that the facts are going to be unchanged and she could not presume what Committee and Council may or may not do with respect to the by-law that will be brought forward.

Councillor Legendre put forward the following Motions:

1. That the patio at 180 MacLaren Street close at 11 p.m. and that there be no outdoor sound amplification.

2. Whereas Transportation Committee at its meeting of September 1, 2010, very recently requested that a comprehensive review of the City’s Encroachment By-Law as it relates to “Outdoor Patio Encroachment” and that this be reported to Committee and Council in the first quarter of 2011;

Therefore be it resolved that consideration of any further patio encroachments under the by-law await the results of the review in the first quarter of 2011.

Councillor Leadman inquired how close to the residential zone this patio would be. Ms. Uhryniuk explained it is approximately 17 m from the closest residence zone and the length of the patio as proposed is approximately 40 m. The councillor noted the concerns raised by one of the delegations regarding sightlines, the fire hydrant and safety issues and she asked if staff had any concerns about these as part of the diagram provided to them for the patio (illustrated in the report). Ms. Uhryniuk confirmed that the proposal includes the same as that included in the staff report and it was circulated to staff in traffic and safety and no concerns or comments were received. The councillor then asked if there had been other waivers to the 30 m encroachment and Ms. Uhryniuk confirmed there are 75 or 80 patios and about 20% of those have been approved through waiver of the 30 m separation requirement.

The Chair asked if the delegation wished to clarify the distance, Mr. Karam offered that in terms of proximity, he understood it is determined based on proximity to zoned residential property and the closest zoned residential property is the parking lot immediately adjacent to his property, which he owns so there is in fact a 100 m buffer between his proposed patio and the building next door. In response to a question posed by Councillor Bédard, Ms. Uhryniuk explained that the 30 m would apply to the residences across the street as well.

Councillor Holmes inquired where the patios were situated that staff referred to and Ms. Uhryniuk stated they were throughout the city but mainly in the downtown core. The councillor interpreted this to mean that staff will deny a request if it is within 30 m of a residential zone, but will support it if it is brought forward by a councillor. The Deputy City Manager clarified that that was not the case. She confirmed the councillor was correct in that a request for a waiver has to come through the Committee, but staff do look at the operational considerations and if there were issues raised staff would not be recommending support for the waiver. The councillor noted that 70 of the 89 people who provided a response to the circulation objected to the patio and therefore it was a technical concern that caused staff to deny the encroachment application initially. The Deputy City Manager clarified that in terms of operational considerations that, would be fairly broad considerations and given the proposed operation of the patio that speaks to mitigation of some of the concerns that were raised by members of the public so it is a broad based review that includes technical, operational considerations but also other operational considerations.

When asked by the councillor for examples of technical or operational considerations, Ms. Uhryniuk indicated they would be sight lines, pedestrian safety, pedestrian volume, pooling on the corner of an intersection (by pedestrians). Staff would ensure there are no patios so close to an intersection that would affect pedestrian movement. She offered that other technical considerations would include the location of utility outlets, fire hydrants, et cetera to ensure that all such operational concerns are considered. When asked how much weight is given to public consultation, she advised that provisions of the by-law provide for regulation of noise and other concerns the public may bring forward during the circulation. She confirmed that once the patio is in they would look after the noise problems, should they occur.

Ms. Schepers clarified that staff do a full review all waiver requests and would not necessarily recommend granting of a waiver in all circumstances.

Councillor Bloess noted that staff have reviewed this request and have taken into account all the various factors that would work against this if they were in fact an overriding concern. Ms. Uhryniuk confirmed that the location has been reviewed. The councillor recognized the concerns expressed by the ward councillor, but suggested there was something wrong with the process when an applicant is denied an encroachment for many years, but he recognized that coming through a councillor is the next step in that process and he found it unfortunate that it has taken as long. He was not supportive of putting off this matter until the spring.

Councillor Desroches asked whether the Motion regarding music and closure times is standard for this type of waiver and Ms. Uhryniuk confirmed that the applicant has consented to this request from the Committee and these are standard conditions imposed on this type of approval by staff. When asked by the Chair to confirm his support for these conditions, Mr. Karam stated that he was in agreement.

Chair McRae remarked that as was stated at the last meeting, but for the fact the by-law compelled staff to say no, they do support this application. Valerie Bietlot, Legal Counsel confirmed that staff have no objection to the application but for the waiver. They do support the application.

Speaking to his Motion to await the comprehensive review, Councillor Legendre felt approval of this would have minimal impact on the applicant given that patio season is closed for 2010 and will not reopen again until late March/early April 2011. It would also establish a level playing field for all applicant since his Motion refers to ‘any’ applications. With regards to process, he recognized the frustration that matters of this type (and others) have to come to Committee and Council time and again and he hoped this could be made easier in future.

When he understood the Motion to refer to any further encroachments, Councillor Bédard was concerned how this would affect applications that may be coming forward in his ward and therefore could not support it. He explained there are areas in the city that are designated entertainment areas and he felt it would be inappropriate to negatively affect all others when the only one in question is the one before Committee, simply because it is a long process to have a patio approved for many of the reasons already explained by the applicant. He agreed there should be no bars (with patios) in residential areas, but recognized that there are streets in the city that have been recognized as major entertainment areas.

Councillor Holmes acknowledged the complexity of the various types of patios in the city, including the requirements of those that serve liquor vs. those that do not; the requirements for those on private property et cetera and the various processes that each must go through before being approved. She recognized too how sounds carry up from patios in the downtown core because of the tall buildings surrounding such establishments and the legitimate problems this causes neighbouring residents. This was one of the very reasons why so many objected to this application because they already have to take great measures to drown out noise generated by the pubs and patios on Elgin Street e.g., closing their windows, wearing earplugs or running their air conditioners at all times. She remarked that in an attempt to intensify its downtown, because so many of buildings are adjacent to or juxtaposed to a commercial street, the City must find the right balance of providing an enjoyable space for residents as well as for the commercial areas. She offered that even though the owner has indicated a responsibility to reduce noise, quite often it is simply a matter of people talking that can cause disruptions since the sound carries so far. She asked that the Committee not support the staff recommendation and to allow staff the opportunity to complete their review of the by-law.

Chair McRae agreed that the applicant should be responsible with respect to the noise issue and therefore urged Committee members to support the staff recommendation. She supported the Motion to ensure closure of the patio at 11 p.m. and that there be no outdoor sound amplification and recognized the owners’ agreement with these conditions. She encouraged members to reject the other Motion from Councillor Legendre.

On a Point of Order, Councillor Bloess felt the first Motion was already in the staff report and there was no reason for the Committee to even consider it. He urged the Chair to rule the Motion redundant. Chair McRae felt that since the applicant was accepting of these conditions, that it could be considered. On a Point of Order, Councillor Bédard felt that the order in which the Motions were being considered was incorrect because the first Motion the Committee should consider is the one that recommends awaiting the comprehensive review. The Chair agreed to reorder the Motions accordingly.

Moved by J. Legendre

That the patio at 180 MacLaren Street close at 11 p.m. and that there be no outdoor sound amplification.

CARRIED

Moved by J. Legendre

WHEREAS Transportation Committee at its meeting of September 1, 2010, very recently requested that a comprehensive review of the City’s Encroachment By-Law as it relates to “Outdoor Patio Encroachment” and that this be reported to Committee and Council in the first quarter of 2011;

THEREFORE BE IT RESOLVED that consideration of any further patio encroachments under the by-law await the results of the review in the first quarter of 2011.

LOST

YEAS (1): J. Legendre

NAYS (5) R. Bloess, S. Desroches, G. Bédard, C. Leadman, M. McRae

That the Transportation Committee recommend Council approve waiver of the residential encroachment provisions of By-law-446 to allow for an outdoor patio at 180 MacLaren Street as outlined in this report, as amended to ensure that the patio close at 11 p.m. and that there be no outdoor sound amplification.

CARRIED, as amended, with Councillor Legendre dissenting