3. OFFICIAL PLAN AMENDMENT NO. 76 – UPDATE ON ONTARIO MUNICIPAL BOARD HEARINGS

MODIFICATION NO 76 AU PLAN OFFICIEL – COMPTE RENDU DES AUDIENCES DE LA COMMISSION DES AFFAIRES MUNICIPALES DE L’ONTARIO

AGRICULTURE AND RURAL AFFAIRS COMMITTEE AND PLANNING AND ENVIRONMENT COMMITTEE RECOMMENDATIONs

1. That Council receive this report for information;

2. That Council direct staff to review and report back to Planning Committee and Council on the definition of Organic Soils in the Slope Stability Guidelines in order to clarify the definition and its role in the context of the Guidelines.

RECOMMANDATIONS DU COMITÉ DE L’AGRICULTURE ET DES QUESTIONS RURALES ET DU COMITÉ DE L’URBANISME ET DE L’ENVIRONNEMENT

1. Que le Conseil prendre connaissance du présent rapport;

2. Que le Conseil demande au personnel d’examiner et de transmettre un rapport au Comité de l’urbanisme de même qu’au Conseil sur la définition de sols organiques dans les Lignes directrices sur la stabilité des pentes, en vue d’éclaircir la définition et son rôle dans le contexte des Lignes directrices;

Documentation

1. City Clerk and Solicitor’s report, dated 14 January 2011 (ACS2011-CMR-LEG-0003).

2. Extract of Draft Minutes, Planning Committee meeting of 25 January 2011.

3. Extract of Draft Minutes, Agriculture and Rural Affairs Committee meeting of

27 January 2011.

Report to/Rapport au :

Planning and Environment Committee

Comité de l’urbanisme et de l’environnement

and Council / et au Conseil

14 January 2011/le 14 janvier 2011

Submitted by/Soumis par : M.Rick O'Connor, City Clerk and Solicitor/

Greffier et Chef du contentieux

Contact Person/Personne ressource : Timothy Marc

Senior Legal Counsel/Conseiller juridique principal

Legal Services/Services juridiques

(613) 580-2424 x21444, timothy.marc@ottawa.ca

City-Wide

Ref N°: ACS2011-CMR-LEG-0003

SUBJECT:	OFFICIAL PLAN AMENDMENT NO. 76 – UPDATE ON ONTARIO MUNICIPAL BOARD HEARINGS

OBJET :	OBJET : MODIFICATION N^O 76 AU PLAN OFFICIEL – COMPTE RENDU DES AUDIENCES DE LA COMMISSION DES AFFAIRES MUNICIPALES DE L’ONTARIO

REPORT RECOMMENDATIONS

1. That the Planning Committee and Agriculture and Rural Affairs Committee recommend Council receive this report for information.

2. That the Planning Committee recommend Council direct staff to review and report back to Planning Committee and Council on the definition of Organic Soils in the Slope Stability Guidelines in order to clarify the definition and its role in the context of the Guidelines.

RECOMMANDATIONS DU RAPPORT

1. Que le Comité de l’urbanisme et le Comité sur l’agriculture et les affaires rurales recommandent au Conseil de prendre connaissance du présent rapport;

2. Que le Comité de l’urbanisme recommande au Conseil de demander au personnel d’examiner et de transmettre un rapport au Comité de l’urbanisme de même qu’au Conseil sur la définition de sols organiques dans les Lignes directrices sur la stabilité des pentes, en vue d’éclaircir la définition et son rôle dans le contexte des Lignes directrices;

BACKGROUND

The purpose of this report is to update Members of Council on the status of the Comprehensive Official Plan Amendment, OPA No. 76, before the Ontario Municipal Board. This report also is to identify one issue that arose during the first hearing on OPA No. 76 held at the beginning of December, 2010 (the Endangered Species Hearing).

Following the approval of Official Plan Amendment No. 76 by the Minister of Municipal Affairs and Housing in January 2010, 29 appeals were received. A series of three pre-hearings have been held by the Ontario Municipal Board to deal with procedural matters. The last pre-hearing was held on August 26^th, 2010.

The outcome of these pre-hearings was to schedule the appeals to the Amendment. These hearings have been grouped according to the following subject matters for the following dates:

Subject Matter	Hearing Commencement Date	Duration of Hearing
Policies with respect to Endangered Species	1 December 2010	Four Days-Hearing Completed, Appeal Dismissed
Urban Boundary, Phase 1	22 February 2011	Five Weeks
Commercial Site Outside Manotick	02 May 2011	Four Weeks
Designation of Lands within the Ottawa River	31 May 2011	Four Days
Flewellyn Special Study Area, Environmental Policies	06 June 2011	Four Weeks
Cultural Heritage and Design Guideline Policies	15 August 2011	Two Weeks
Airport and Employment Policies	19 September 2011	Two Weeks
Country Lot and Villages	24 October 2011	Two Weeks

The following comments are applicable to the specific items discussed below.

ENDANGERED SPECIES HEARING

The hearing concerning the policies for the protection of endangered and threatened species, Section 4.7.4, took place over four days at the commencement of December. The decision of the Board was released at the end of December, dismissing the appeal.

During the course of the hearing, one of the positions put forward by the appellants was that the organic soils mapping on Schedule K should be used as a screening tool to identify potential habitat for endangered and threatened species.

While it was the testimony of the staff that there is not a sufficient correlation between the presence of organic soils and the presence of Endangered and Threatened Species or their habitat to warrant such a policy, in the course of the hearing, differences between the definitions of organic soils in the Official Plan and in the Slope Stability Guidelines became apparent.

The two definitions are set out below.

Official Plan Definition

The Official Plan provides that:

Organic soils are identified on soils maps prepared by the Ontario Institute of Pedology.

Slope Stability Guidelines Definition

Section 2.5 of the Slope Stability Guidelines approved by Council in November, 2004 defines organic soils as follows:

Organic soils are generally formed by the decomposition of vegetation, in relatively recent times, forming soils that may consist partly or almost entirely of organic matter (rather than mineral particles). Common types include topsoil, peat, and alluvium. Topsoil is generally a mineral soil (such as sand or clay) with up to about 10 percent organic matter; it is the darker upper-most soil (usually less than about 0.3 metres thick) found in most locations. Peat is generally found in “swampy” or “marshy” conditions and is formed by the accumulation and decomposition of organic matter to form a material that is almost entirely organic (i.e., no mineral soil). Alluvium is the name of soils (generally silt and sand) deposited as a dark silty “mud” along river and creek banks. A fourth organic soil type is marl, which is often present beneath peat deposits, is white or grey in colour, feels much like a soft wet clay, but is weaker and often behaves “jello-like” when shaken.

The definition found in the Slope Stability Guidelines is much broader than the technical definition used by soil scientists and therefore includes a much wider area of the city than that indicated as organic soils on the maps of the Ontario Institute of Pedology and shown on Schedule K of the Official Plan. The scientific definition cited during the hearing, attributed to the Canadian System of Soil Classification, restrictions the term “organic soils” to those soils containing more than 30% organic matter by weight, in a layer 40 cm or more deep. This definition excludes most of the soil types referred to in the Slope Stability Guidelines as “organic soils”.

It is important to note that the two definitions serve different functions, the definition in the Official Plan speaks to land use whereas the definition in the Slope Stability Guidelines speaks to the question of engineering practices to be utilized when building in the location of unstable slopes. Nevertheless it did appear in the hearing that additional review of the two definitions and clarification as to their use would be appropriate and staff undertook to recommend this to Committee and Council.

Urban Boundary Phase 1

The five week hearing set down for February 22^nd, 2011 is to consider the intensification policies within OPA 76 and whether any additional urban lands are required. In the event that the City succeeds at the hearing, such will resolve the issues. In the event that the City is not successful, and the Board determines that more urban land is required, the matter would be remitted to Council to consider which lands should be added. If agreement is not reached, the matter would return to the Board for a second phase hearing.

Country Lots and Villages

At the July 8, 2010 meeting of Agriculture and Rural Affairs Committee, staff received the following direction:

The City Clerk and Solicitor’s Department to outline to Committee the process that staff intend to undertake with respect to the appellants to the Country Lot Moratorium.

Consistent with the other hearings, there will be an exchange of witness statements 63 days in advance of the hearing (i.e. the exchange will take place on August 22, 2011). Experts in like fields are to meeting before the hearing to see if any agreements on fact or policy can be made. Finally, as discussed below, should any new information or evidence be revealed in the witness statements, such will be brought before Agriculture and Rural Affairs Committee and Council in September.

Legal Counsel

As Members of Council have been advised, Weir and Foulds has been retained to represent the City together with the Legal Services Branch in the Urban Boundary hearing. The Legal Services Brach will be representing the City in the other hearings with respect to OPA 76.

City Witnesses

As Members of Council also may recall, the drafts of OPA 76 recommended by Planning Staff to Council were based upon a twenty year time frame with respect to residential growth. While Planning staff have stated that they can support the fifteen year time frame in the amendment as adopted, the determination has been made that it would be beneficial to retain an external witness who also can specifically support the fifteen year time frame.

Planning staff also did not recommend the moratorium for country lots. Therefore, an external planning witness to provide evidence in support of this area has also been sought.

Planning staff do support and Council did not accede to the request by Trinity for an official plan amendment to permit a retail facility outside Manotick. As noted above, four weeks have been set aside for this hearing. In order to provide and respond to what is anticipated to be detailed soils, marketing and transportation evidence, the City will be calling staff witnesses but is also retaining external witnesses in these areas.

New Information

As the hearings approach, Planning and Environment Committee and/or Agriculture and Rural Affairs Committee may receive memoranda concerning evidence to be presented at the hearings on OPA 76. As Council has already established the City’s position, through the Amendment’s adoption, staff through it appropriate to provide the rationale as to why these memoranda may be coming forward.

In the amendments made to the Planning Act through Bill 51, the following provisions were added:

New evidence at hearing

(44.3) This subsection applies if information and material that is presented at the hearing of an appeal under subsection (24) or (36) was not provided to the municipality before the council made the decision that is the subject of the appeal.

Same

(44.4) When subsection (44.3) applies, the Municipal Board may, on its own initiative or on a motion by the municipality or any party, consider whether the information and material could have materially affected the council’s decision and, if the Board determines that it could have done so, it shall not be admitted into evidence until subsection (44.5) has been complied with and the prescribed time period has elapsed.

Notice to council

(44.5) The Municipal Board shall notify the council that it is being given an opportunity to,

(a) reconsider its decision in light of the information and material; and

(b) make a written recommendation to the Board.

Council’s recommendation

(44.6) The Municipal Board shall have regard to the council’s recommendation if it is received within the time period referred to in subsection (44.4), and may but is not required to do so if it is received afterwards.

It may be that in the course of the preparation for the hearing that either the appellants, or indeed City staff, will identify new information or material that has not yet been before Committee and Council. This requirement has already has already been identified for the Urban Boundary Phase 1 hearing.

The above provisions from the Planning Act require that Committee and Council are to have the opportunity to consider significant new information prior to the Board making a decision. In the event that new information is to be submitted to the Board, time has been built into the pre-hearing process to permit such information to be considered by Committee and Council. In accordance with past practice, such would be submitted as an Information Previously Distributed item to Committee that Members of Committee could then request be brought forward for consideration if it was their view that the information contained therein possibly warranted Committee and Council revisiting the policy at issue.

CONSULTATION

The dates for the hearings would set down by the Board at a pre-hearing at which all parties were able to make submissions as to when the hearing should take place.

With respect to the review of the definitions of organic soils, staff will consult with the development industry, the appellant to the Endangered and Threatened Species hearing and other interested stakeholders prior to reporting back to Committee and Council.

FINANCIAL IMPLICATIONS

The cost of the external witnesses for the Trinity commercial hearing is estimated to be $150,000 to $225,000. A major factor in the scope of this range is to the actual number of days of hearing that the witnesses will need to attend.

The cost of the external witness for the Urban Boundary Phase 1 hearing is $75,000-$100,000, again the range being due to the uncertainty in the actual number of hearing days the witness will need to attend.

The cost for external legal counsel for the Urban Boundary Phase 1 hearing is estimated to be $250,000 to $300,000.

The City Clerk and Solicitor Department has included within its one time funding request monies for the retention of external legal services for the Urban Boundary Hearing.

No identified funding is made available for the retention of external planning witnesses. The cost of external witnesses will be borne by the Planning and Growth Management Department operating budget.

ENVIRONMENTAL IMPLICATIONS

A number of the hearings identified above concern environmental policies within the Official Plan. These policies were adopted by Council as a result of the comprehensive official plan review and evidence will be lead to support the approval of these policies.

RURAL IMPLICATIONS

With the exception of the Airport and Employment Policy hearing, which is largely directed at matters relating to the Ottawa Macdonald-Cartier International Airport and lands within the Riverside South community, each of the other hearings contains aspects of relevance to the rural area. As noted in the accompanying report on the Urban Boundary – Phase 1 hearing the issues list for that hearing has been determined so as to minimize the need to call evidence with respect to the rural area. For the other hearings, staff will ensure that relevant aspects of policy related to the rural, as well as the urban areas of the City are brought before the Board.

STRATEGIC PLAN

The Official Plan, as proposed to be modified by OPA No. 76 assists in implementing the following three objectives from the City’s Strategic Plan:

Objective 1 (New): Manage growth and create sustainable communities by:

o Becoming leading edge in community and urban design

o Ensuring that new growth is integrated seamlessly with established communities

Objective 3: Ensure that the City infrastructure required for new growth is built or improved as needed to serve the growth.

Objective 4: Preserve Ottawa’s rural villages.

DISPOSITION

Planning and Growth Management Department will consult with respect to the definitions of organic soils and submit a report to Committee and Council.

Legal Services and Planning and Growth Management will continue to defend Official Plan Amendment No. 76 before the Ontario Municipal Board.

extract of PEC

DRAFT Minutes 3

25 JANUARY 2011

extrait dE L’ÉBAUCHe

Du ProcÈs-verbal 3 du

ComitÉ de l’urbanisme

le 25 JANVIER 2011

OFFICIAL PLAN AMENDMENT NO. 76 – UPDATE ON ONTARIO MUNICIPAL BOARD HEARINGS

MODIFICATION NO 76 AU PLAN OFFICIEL – COMPTE RENDU DES AUDIENCES DE LA COMMISSION DES AFFAIRES MUNICIPALES DE L’ONTARIO

ACS2011-CMR-LEG-0003 CITY WIDE/À L'ÉCHELLE DE LA VILLE

Tim Marc, Senior Legal Counsel provided a brief overview of the status of Ontario Municipal Board Hearings on OPA 76, as outlined in the report. He did so in conjunction with his presentation on Item 2 of the Planning Committee Agenda (Urban Boundary – Phase 1 Hearing – New Information/Evidence ACS2011-CMR-LEG-0004).

He explained the rationale behind recommendation 2, the direction to staff to review and report back to Planning Committee and Council on the definition of Organic Soils in the Slope Stability Guidelines in order to clarify the definition and its role in the context of the Guidelines. He noted that as part of the hearing on endangered and threatened species, it was identified that there were two definitions of organic soils, the one in the Official Plan and a broader one in the Slope Stability guidelines. Staff had agreed that, although those documents were intended to serve different purposes, there would be some value in reviewing the guidelines.

Report to/Rapport au :

SUBJECT:

OBJET :

REPORT RECOMMENDATIONS

RECOMMANDATIONS DU RAPPORT