Report to/Rapport au :


Planning and Environment Committee

Comité de l;urbanisme et de l’environnement


and Council / et au Conseil


5 November, 2010/le 5 novembre 2010


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

Legal Services/Services juridiques

(613) 580-2424 x21444,



Kitchissippi (15)

Ref N°: ACS202010-CMR-LEG-0021














That Planning and Environment Committee consider amending the zoning by-law amendment for the above site to include a provision in accordance with Document 1, pursuant to the Planning Act¸ section 37.




Que le Comité de l’urbanisme et de l’environnement considère amender la modification du règlement de zonage pour l’emplacement indiqué précédemment afin d’inclure une disposition conformément au Document 1, en vertu de l’article 37 de la Loi sur l’aménagement du territoire.




The rezoning proposal for the lands identified above was before Planning and Environment Committee on September 28th, 2010.  At that time, Committee adopted the following motion:



WHEREAS the Planning Act, section 37 permits the Council to require agreements for the provision of services, facilities and other matters in return for increases in height and density which must be within the Official Plan, including the secondary plan.;


AND WHEREAS the Official Plan of the City of Ottawa permits Council to utilize section 37 agreements;


AND WHEREAS it is deemed appropriate for the City of Ottawa to require such services and facilities in return for height and density in the instance of 90 Richmond Road, 114 Richmond Road And 380 Leighton Terrace;


That Planning and Environment Committee approve:


1.      That the rezoning in respect of 90 Richmond Road, 114 Richmond Road And 380 Leighton Terrace be referred back to staff in consultation with the ward councillor and relevant community representatives, to be determined by the ward councillor, with the direction that a by-law and agreement be brought forward pursuant to the Planning Act, section 37 providing for services, facilities and other matters in return for the increases in height and density to be submitted to Planning and Environment Committee on November 16, 2010.


2.      That, pursuant to the Official Plan, public consultation on what would be appropriate services, facilities and other matters to be provided be conducted prior to the submission of a report back to Planning and Environment Committee and Council.


3.      That such consultation consider and the report back to Committee and Council address as possible services, facilities and other matters:


(a)               The conveyance of the convent to the City;

(b)               Restoration, accessibility, improvements and programming for the convent; and

(c)                Use of the convent by community groups, not-for-profit groups and/or recreational organizations; and


4.      That preservation or maintenance of the heritage building not be included in the possible list of community benefits to be considered in section 37 of the Planning Act, because it is already designated.


The provision of services or facilities in return for height or density of development is addressed by the Planning Act, Section 37.  Subsection 37(1) of the Act provides as follows:


The council of a local municipality may, in a by-law passed under section 34, authorize increases in the height and density of development otherwise permitted by the by-law that will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law


Section 37 further provides that, for it to be applicable, there must be provisions in the Official Plan concerning the authorization for increases in height and density.  The Official Plan of the City of Ottawa provides in Section 5.2.1, Policy 8:


8. Pursuant to Section 37 of the Planning Act, the City may authorize increases in the height and density of development above the levels otherwise permitted by the zoning by-law. Public consultation will be included in the development and approval of such a by-law. Limited increases will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law. Such provisions that may be authorized include, but are not limited to:

a.  Public cultural facilities;

b. Building design and public art;

c.  Conservation of heritage resources;

d. Conservation/replacement of rental housing;

e.  Provision of new affordable housing units; land for affordable housing, or, at the discretion of the Owner, cash-in-lieu of affordable housing units or land;

f.  Child care facilities;

g. Improvements to rapid-transit stations;

h. Other local improvements identified in community design plans, community improvement plans, capital budgets, or other implementation plans or studies;

i.   Artist live-work studios

Recommendation 1 of the motion adopted by the Committee directed the creation of a working group to consider the question of Section 37.  As a result, a group comprised of the Ward Councillor, three community representatives and a representative from Legal Services was set up.  Planning and other staff were consulted as appropriate throughout the period from the adoption of the motion to the submission of this report.




In order to draft a provision under Section 37, two questions must be answered:


1.      What is the additional height and density to be permitted?

2.      What services or facilities are to be required in return for the height and density?


Additional Height and Density


In answering the first question, it is important to note that the purpose of section 37 is not to allow what is inappropriate development to proceed in exchange for services or facilities being provided to the community.  Rather, its role is an acknowledgement that even what is appropriate development may place some adverse impacts on a community and to provide some degree of compensating measures for those impacts.


With respect to the matter of additional height and density, Committee has before it the recommendation of Planning and Growth Management as to what is appropriate development on this site.  This recommendation constitutes the professional advice of City staff as to what changes to the zoning by-law are appropriate.


Because the zoning was deferred to permit the consultation on and submission of a Section 37 proposal, neither Committee nor Council have taken a position on the zoning.  Nevertheless, in order to submit to Committee a proposal pursuant to Section 37, it is necessary to establish baselines to evaluate the appropriateness of the requested services and facilities in consideration of additional height and density being permitted.


Given the composition of the Working Group, the proposal discussed in this report has a strong basis in community input.  To the extent that Committee and Council determine to provide less or more height and density than is discussed in the proposal, Committee and Council may wish to adjust the terms of the proposal accordingly.


In respect of establishing baselines, while the details of any development proposal would need to be specified through zoning and site plan approval, given that it is not current City policy that every increase in height and density would result in a section 37 arrangement, there was a sense that a development comprising up to six storeys to the north of the monastery along the Richmond Road frontage and up to four storeys to the south of the monastery would not result in services or facilities being required to be provided to the City.


As to the additional height and density to be provided, as noted above, Committee has a staff recommendation on that matter.  For the purposes of the section 37 proposal, a development of four storeys behind the monastery and ten storeys in front of the monastery along Richmond Road was taken before the community meeting on November 4th, 2010 and is discussed in this report.  It is thus a further four floors from six, outlined in the baseline above, to ten along Richmond Road that would constitute the additional height and density for the purposes of the section 37 analysis.


Services or Facilities


Without limiting the areas to be examined as possible services and facilities, Committee directed staff to explore:


(a)               The conveyance of the convent to the City;

(b)               Restoration, accessibility, improvements and programming for the convent; and

(c)                Use of the convent by community groups, not-for-profit groups and/or recreational organizations


The Owner has advised the City that it is not prepared to convey the convent to the City.  A requirement to convey the convent to the City in the face of opposition by the land Owner is not likely a provision in a zoning by-law under section 37 that would be upheld upon appeal.




Developer’s Initial Proposal


Members of Committee will be aware that, through a submission made on October 7th, 2010 by the Owner’s solicitor, the Owner offered to lease the entire monastery, exclusive of the house, to the City on the following basis:


  1. The City would be leased the entire monastery with the exception of the house for a period of 15 years, with two, five year options to renew;
  2. The rent payable would  be $12 per square foot for the first, second and third floor, $5 per square foot for space in the basement, indexed in accordance with the consumer price index;
  3. There would be no rental charge for the chapel;
  4. All fit-up costs and operating costs would be borne by the City;
  5. Uses be required to be compatible with the Owner’s development.


There is some 28,000 square feet of space on the first, second and thirds floors of the convent, not including the chapel and some 10,540 square feet of space in the basement.  The motion adopted by the City contemplates services or facilities being provided by the Owner.  It does not state that a significant financial obligation is to be incurred by the City.  Therefore given that the annual rental charge of the above proposal (not including operating nor fit-up costs) would result in a $390,000 cost to the City, staff have not brought forward this proposal.


Proposal for Committee Consideration


Staff were provided with an opportunity to walk through the entire monastery.  (Through the process following upon the adoption of the motion on September 28th, 2010, Legal Services has acquired an understanding that term “monastery” incorporates the entirety of the buildings, house, convent (including the residence for the nuns) and the chapel).  With the benefit of this visit and, having consulted with the Working Group and the community, the proposal that is placed before Committee for consideration is that attached in Document 1.


The essence of this proposal is that the City would be provided, at no cost, the Chapel, an adjoining room to the south-east and a further 5,000 square feet of space on the first floor for a period of fifteen years.  The costs of providing tenant fit-up for the space including a stage and appropriate lighting within the Chapel, would also be borne by the Owner.


It is expected that the Chapel would be used as a community theatre.  The adjoining room would serve as ancillary space for those preparing to go on stage.


While there does not appear to be a reliably scaled drawing of the monastery, based on the information that was provided with the offer to lease by the Owner, 5,000 square feet would appear to constitute approximately 50% of the ground floor.  Although the rooms on the ground floor are somewhat larger than those on the second floor, it is still likely that there may have to be some consolidation in order to render the space usable.  The request for leased area was confined to the ground floor so as to minimize the cost to the Owner of elevators or other facilities that would be required to make the spaces accessible for City uses.  The Owner would be expected to incur the cost of ensuring that the space of the ground floor is fully accessible.  Further, separate and secure accesses would be required to the space leased to the City in order to ensure the safety and security of those utilizing the area of the building leased to the City.


As to the use of the 5,000 square feet, consistent with the emphasis by Council on public consultation, the specifics of such uses would only be determined after further communication with and input from the community.  However, it is anticipated that the space could be used for community organizations, cultural activities and the standard types of activities that take place at the community and recreation centres across the City.


Additional Condition for Holding Zone


The proposal also provides for a further condition to be imposed upon the holding zone that would be established for the site.  Prior to any development occurring on the site, a lease consistent with the principles of the proposal would be required to have been executed.


Financial Value of Proposal


The chapel and the room providing ancillary space likely comprise some 4.000 square feet in total.  Together with the request for 5,000 square feet in the chapel, the total amount of leased space that is sought is therefore in the order of 9,000 square feet.  If one were to accept the Owner’s rental figure of $12 per square foot, including applying it to the Chapel, this would constitute a financial value of $108,000 per year.  The operating costs for this space have been estimated within a plus/minus 25 per cent range, to be in the order of $100,000 per year.  Thus the financial value to the City of the space is in the very approximate range of $210,000 per year. 


This figure is not inclusive of fit-up costs.  As the uses to take place and the precise size of rooms remain to be determined, a reliable figure cannot be provided at this time.




As this report concerns the use of the monastery, there are not environmental implications associated with this report.




There are no rural implications associated with this report.




The section 37 proposal placed before Committee provides that there will be no rent, fit-up costs or operating costs associated with the building borne by the City.


However, in order for the space to be utilized, there will be costs that would be associated with programming of activities.  The details of those costs can only be determined after further consultation takes place with the community to determine which activities should take place within the space that the proposal provides should be leased to the City.


As noted below, the proposal has been written on the basis that the obligation on the Owner to provide the space to the City only crystallizes if the City in its budget provides funding for the programming of the space.  Thus, if Council were to adopt the proposal outlined in this report, there is no legal obligation yet in place to provide such programming funding.




The inclusion of a requirement for services or facilities in return for height and density is consistent with Objective 2 under Planning and Growth Management Priorities, which provides in part that the City is to seek to integrate new growth seamlessly with established communities.




Planning Act, Section 37


As with any other provision in a zoning by-law, provisions adopted under the Planning Act, section 37 can be appealed to the Ontario Municipal Board.  The Legal/Risk Management comment on the Planning and Growth Management Report identified that a hearing of up to two weeks duration could be required if the zoning for this site is appealed to the Board.  Should section 37 matters also be at issue, then a third week of hearing time could be required.


Municipal Act, 2001, section 275 “Lame Duck Provision”


As Members of Council are aware, when after voting day, it is determined that the existing Council comprises less than three-quarters of the incoming Council, Council is not permitted to approve unbudgeted expenditures that exceed $50,000.  No funds have been identified in any existing budget for the programming of space at the monastery.  Further, the gross or net cost of such programming over a 15 year period, while not yet determined, will certainly be greater than $50,000.  Therefore, the proposal has been written such that the obligation upon the Owner to incur the costs of preparing the leased premises for the City will only crystallize if Council allocates funding for programming in the 2011 or 2012 budgets.  As such, no monetary obligation would be incurred by the present Council with the adoption of the proposal in Document 1.




The motion adopted by Planning and Environment Committee and the provisions of the Official Plan require public consultation where a section 37 proposal is being considered.


To that end, a working group composed of the Ward Councillor and three community representatives was set up.  Staff met with this group on two occasions, the second time with representatives of the developer.  This lead to a draft of the proposal which was presented to a public meeting at Notre Dame High School on November 4th, 2010.  A summary of the written and oral comments received are attached as Document 2.







Although not related directly to the section 37 proposal, Legal Services staff have received comments from the Heritage Consultants retained by the City to assist with the objection to the Part IV Heritage Designation proposed by Council for the entire property.  An initial pre-hearing has taken place before the Conservation Review Board and a second pre-hearing is scheduled for December.


The review by the consultants of the site have led them to suggest that the Statement of Cultural Heritage Value should be modified to add the following heritage attributes:


a)      The view of the residence from Richmond Road from inside the wall (from the northeast);

b)      The view from the raised porch to the designed landscape;

c)      Although the current porch is not the original, the porch has been an important architectural feature because it importance as a viewpoint;

d)     The view of the roof line, bell tower and tree canopy from Richmond Road outside the wall;

e)      The mature tree collection of specimen trees associated with the long occupation and use of the site in the north and south portions of the property;

f)       The vegetation on the inside of the wall which reinforces the inward oriented and contained green character of the convent property;

g)      The elevations in the front and side yard of the residence including the raised beds, and terracing and the change in grade from the convent level down to the south lawn and former working landscape area creating a separation of building and site and overlook opportunity;

h)      The porch on the east side which provides viewing opportunities over the picturesque landscape as well as the connection between the building and the landscape;

i)        The original primary view and access of the property from the northeast corner to the view and access the convent from the northwest corner;

j)        The pedestrian circulation routes within the picturesque landscape that allow the visitor to enter into and walk through the site with deliberately placed vegetation along the route to create an aesthetic setting to the building.


Should Committee and Council wish a report back on this Heritage Aspect, a motion to that effect would provide the necessary direction to Legal Services to advice the Conservation Review Board that these attributes will be considered by Council at a future date.




It is the Community’s clear understanding from the adoption of the Secondary Official Plan Amendment for the Richmond Road/Westboro community (OPA 70) that the OPA was to result in intensification only at a level that could reasonably be accommodated by the Community. Such intensification must be accompanied by the necessary traffic infrastructure and transit to support the development. The level of development, in terms of both height and density, proposed by the Owner and planning staff is not appropriate for this area.  Section 37 should not be used to permit such a level of development to occur.


As to the discussions and consultation that did take place, in the normal course of negotiations the Owner would have sent any proposals to and conducted negotiations directly with the Working Group or staff.  By initially seeking to conduct negotiations through a wider group, including the media, proper process was not respected.




At the Planning Innovation Policy Summit held on 18 February 2010, the matter of section 37 was discussed.  The Information Report submitted to Committee on April 13th, 2010 noted that this discussion had taken place.  The Action that the report identified staff would take was the following:


The Department will review the zoning on Arterial Mainstreets, Mixed Use Centres, and Suburban Town Centres to develop zoning mechanisms to implement minimum density targets; revise performance standards to implement a more urban form of development; and revise parking standards to make them secondary to the achievement of minimum density targets. This work will be undertaken through to 2013, with full Ward Councillor and community consultation.


This Information Report is not a bar to Council proceeding with a section 37 proposal.  Given the specific Committee on September 28th, 2010 with respect to the Monastery site, this report is being brought forward prior to the completion of the above review.




Planning and Growth Management will revise the draft zoning by-law to take into account the Committee’s determination with respect to the implementation of section 37 in this case.


The City Clerk and Solicitor Department will forward the by-law to Council for adoption.




Document 1    Section 37 Proposal

Document 2    Summary of Comments Received





1.      That a lease from Ashcroft to the City be provided for a 15 year period for $1.

2.      The portions of the building to be leased would include the chapel, the room immediately to the south-east (for use for example as ancillary space ( e.g. a “green room”) for theatre or other performance arts), sufficient space at the entrance to the chapel for a lobby, as well as an additional 5,000 square feet, all space to be located on the first floor.

3.      The leased space would preferably be contiguous but adjustments could be made to permit the preservation of important aspects of the building’s interior.  The leased space shall include access to the cloister garden.

4.      The leased space would be required to have separate accesses from outside, both for the chapel and the balance of the leased space.

5.      The cost of the fit-up (including making the chapel usable for theatre (e.g. stage, lighting)) for the City purposes as well as all operating costs for the 15 years would be borne by Ashcroft.  In other words, the $1 would be the complete cost to the City for the space.

6.      The fit-up would include making the space accessible to persons with disabilities.

7.      The uses that would take place in the leased space could include theatre, musical performances, other cultural activities, community organizations, and the type of activities that take place at community recreation programs typically found in municipal recreation facilities.  Consideration should be given to options to integrate the use of the leased space with activities at Hilson Avenue Public School.

8.      The responsibility for Ashcroft to fit-up the space would only crystallize upon Council allocating operating funds for the programming of the space by the later of the 2012 budget and Ashcroft obtaining its first building permit for construction on the site.

9.      A cash contribution by the Owner in the amount of $100,000, in addition to the amount due to the City pursuant to the Planning Act, section 42, be made for the acquisition of greenspace within Kitchissippi Ward.

10.  An additional condition of lifting the holding zone for development of the site would the execution of the lease and the payment of the contribution identified in paragraph 9.




Comment:     The view was expressed by several individuals that the Section 37 mechanism should not be implanted in this instance there should be no permission for additional height and density in exchange for benefits to the Community.


Response:     Staff noted that Committee had requested that a section 37 arrangement be placed before Committee for its consideration.  Staff confirmed that this arrangement would be before the Committee neither as the professional advice of the Planning and Growth Management Department nor as endorsed by the Community but rather as what is a reasonable option.


Comment:     A number of comments were received, both at the November 4th, 2010 session and in written submissions on the need for additional greenspace in the community.


Response:     The proposal has been modified to require a contribution by the Owner in addition to what is required to be contributed by it under the Planning Act, section 42. 


Comment:     It was suggested that the City should look at options to integrate the use of any space leased at the convent with the use of the neighbouring Hilson Avenue Public School.


Response:     A reference to specifically examine this option has been added to the proposal.


Comment:     The lease of the space to the City should be for a longer period of time than 15 years.


Response:     Within the framework of the additional height and density considered in this report (ten and four storeys), it was felt that 15 years was a reasonable time frame.


Comment:     In order to preserve greenspace, in addition to regulating the height/number of storeys, the zoning by-law should regulate the number of units to control the amount of density on site.


Response:     It is possible in a zoning by-law to regulate the number of units on a defined area of land and thereby control density.  However, the preservation of greenspace on a site is normally controlled through set backs and minimum landscape requirements in the zoning by-law.


Comment:     In light of the large number of units the Owner would be permitted to construct, vastly more should be required by the City pursuant to section 37.


Response:     The height and density that Council will support at this site have not been determined at this point.  As discussed in the report, to the extent that Council approves height and density less than or greater than the baseline of 10 and 4 storeys presented in the report, Council may wish to lessen or increase the services and facilities required of the Owner pursuant to the Planning Act, section 37.


                     While the deferral of implementation of section 37 as a result of the Planning Innovation Policy Summit is not a bar to proceeding under section 37 at this time, it would be a consideration as to limiting the request for services and facilities from what might otherwise be sought.


Comment:     The lease should include the entirety of the first floor or should include access to the inner garden and the complete corridor on all four sides surrounding the corridor.


Response:     Access to the cloister garden has been included as an aspect of the proposal.  It is noted that this will result in additional costs, under the principles within Document 1, to the Owner to render the garden accessible.   Use of the entire first floor or all four sides of the corridor would likely be considered a significant increase in the benefit sought by the City.


Comment:     Concern was expressed with respect to parking demand created pursuant to uses within the Monastery.


Response:     As a building designated pursuant to the Ontario Heritage Act, Part IV, the zoning by-law, Subsection 60(5) provides that there is no minimum parking space requirement.  An imposition of required parking spaces for lands leased to the City would increase the cost to the Owner and likely decrease the services and facilities that the City would otherwise be able to obtain.


Comment:     Concerns were expressed on the basis of heritage and structural grounds, as well upon the size of the chapel and the question of need, as to whether it is appropriate for the chapel to be utilized as a performance arts facility.


Response:     There appears to be a general consensus that placing the chapel within the responsibility of the City is desirable.  Further technical study, including consideration of heritage concerns, and consultation with the community would take place before the actual uses to take place in the chapel are determined.



Although the purpose of the public consultation meeting held on November 4th, 2010 was not to receive comments with respect to the staff recommendations submitted to Planning and Environment Committee for its meeting of September 28th, 2010, a significant number of individuals expressed concerns and opposition to the recommended development.


A significant number of individuals also expressed opposition to access to the development over the Byron Linear Park.  It was noted by staff that if access over the Byron Linear Park is refused, this could lead to the Owner seeking access through Shannon Street, a narrow street that terminates at the site.