ISSUE DATE: AUG. 18, 2008

PL080239

Ontario Municipal Board Commission des affaires municipales de l’ IN THE MATTER OF subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Arnon Corp. and Zeev & Sara Vered Subject: By-law No. 2008-38 (amends By-law 100-2000) Municipality: City of OMB Case No.: PL080239 OMB File No.: PL080239

A PPEARANCES:

Parties Counsel

Arnon Corporation and P. Vice Zeev & Sara Vered

City of Ottawa J. Bradley

DECISION DELIVERED BY M. G. SOMERS AND ORDER OF THE BOARD

1. CONTEXT

Arnon Corporation and Zeev and Sara Vered (“the Applicants”) want to change the zoning of 1445 (“the subject property”) in the City of Ottawa (“the City”) from “CO-Commercial Office Block 8 to a MMU – Merivale Mixed Use Exception Zone”. The purpose of the application is to amend Zoning By-law 2008-38 to permit a 450 square metre fast food restaurant and parking lot. The current zoning permits a limited number of uses including office, but not restaurants or retail uses. Specifically, the zoning does not permit drive-through service; restaurant, restaurant fast-food and restaurant take-out. It is this restriction that the Applicants want removed from By-law 2008-38.

Due to opposition to a drive-through restaurant, the Applicants have removed the drive-through component from its proposal. The Applicants appealed to the Board, the Council’s decision to include in By-law 2008-38, the restriction of “restaurant, restaurant fast-food and restaurant take-out.” - 2 - PL080239

Brian Casagrande, a qualified land use planner retained by the Applicants, provided planning evidence in support of the proposal. Ronald Jack, a civil engineer retained by the Applicants, was qualified as an expert in transportation planning and management and provided evidence in support of the proposal. Geraldine Johnston, a qualified land use planner with the City, was subpoenaed and provided evidence. Robert Clark, a qualified land use planner retained by the City, provided planning evidence opposing the proposal.

Paul Dumbrille, Iris and Terence Lonergan members of the Working Group of the Fisher Heights Skyline-Orchard Park Community (“Community Association”) were present and provided evidence opposing the proposal.

2. SURROUNDING LANDS

There was uncontradicted contextual evidence that the subject property is located on the east side of Merivale Road, immediately south of Burris Lane. The site is approximately 55 metres wide and 49 metres deep. The area of the site is approximately 3210 square metres. The subject property is currently a vacant lot.

The surrounding properties contain a mix of uses including: low density residential to the east and commercial to the north, south and west. A motorcycle retailer and large format grocery store are located on the west side of Merivale Road, while a three-storey office building occupies the north side of Burris Lane. Approximately 100 metres to the south is a shopping outlet, which contains a number of retailers including a grocery store, drug store, restaurant, etc.

In general, the area is dominated by asphalt parking lots that flank Merivale Road. Buildings are typically setback away from the street. For the most part landscaping is sparse along this segment of Merivale Road. Behind this site exists an established residential neighbourhood. The subject property is well situated within the City’s public transit system.

The subject property is currently zoned Commercial Office (CO Block 8). This zone permits a number of uses including: business office, bank, day nursery, medical/dental office, school commercial, respite care facility, veterinary establishment and private club. The Block 8 provision restricts development from occurring until all of - 3 - PL080239 the lands delineated in Schedule B7 of the Zoning By-law are assembled under a single ownership. At present the CO Block 8 Zone does not support restaurant or retail uses.

Mr. Casagrande testified that the Applicants have attempted to acquire the entire Block for several decades. The Applicants have not been able to attain the full block; however, they have recently increased their landholdings. The most recent acquisition prompted the proposed Zoning By-law Amendment (“ZBA”), as the Applicants believed they had sufficient property within Block 8 to accommodate a fast-food restaurant.

The fast-food restaurant tenant who will occupy the future development is currently unknown. While a fast-food restaurant is the desired use of the subject property, the Applicants have indicated that they may consider marketing the property for a stand-alone retail. As such, the Applicants want to maintain some zoning flexibility to accommodate potential market demands.

3. PROVINCIAL POLICY STATEMENT

It was Mr. Casagrande’s evidence that the proposed development is consistent with the policies of the Provincial Policy Statement (“PPS”), specifically Part V, Sections 1.1, 1.2, and 1.3 as it achieves the following:

 It contributes to the mix of uses available on this section of Merivale Road, which is already characterized by mixed-use development;

 It will contribute to the intensification of Merivale Road and will redevelop the site;

 It is appropriate for the existing infrastructure, as it is located along Merivale Road, an Arterial Road and takes advantage of existing water and sewer connections; and

 It provides commercial employment.

Ms Johnston testified that the proposal is consistent with the PPS. The Board notes that Mr. Clark had some concerns regarding the proposed development and the PPS. Mr. Clark specifically mentioned sections of the PPS that he was concerned with: 1.1.1 c), 1.1.3.4 and 1.6.5.1. Nevertheless, Mr. Clark testified that overall the proposal was not inconsistent with the PPS. - 4 - PL080239

The Board finds that the evidence of Mr. Casagrande and Ms Johnston to be persuasive and based on their testimony the Board finds that the proposed development conforms to the PPS’s policies regarding intensification and redevelopment, providing a mixture of uses, the use of existing infrastructure and providing commercial employment.

4. CITY’S PLANNING DOCUMENTS

(i) Applicants’ Evidence

Mr. Casagrande informed the Board that the City’s Planning Department (“the Department”) supports the proposal.

In addition, Mr. Casagrande informed the Board that the Planning Environment Committee (“PEC”) supported the proposal and recommended to Council to approve the ZBA (subject to a direction that staff consider a site plan with access and egress on Merivale Road and if access was not considered desirable, that it be subject to a report to the Transportation Committee).

However, at Council, the Councillor for the area introduced Motion No. 30/7 (“the Motion”), which stated that the neighbouring Residents’ Community was greatly concerned about the access to and from the site and that the Residents’ Community had determined that if the restaurant and bar usage was removed from the list of permitted uses, the Community Group’s zoning concerns would be resolved (Exhibit 2, Tab 3 at p. 50). At Council the Motion was passed.

It is Mr. Casagrande’s opinion that Council’s support of the Motion was not based on good planning. Furthermore, Ms Johnston testified that from a planning perspective, she could not support the content of the Motion.

It was Mr. Casagrande’s and Ms Johnston’s evidence that the proposal conforms to the general intent and purpose of the Merivale Secondary Plan (“Secondary Plan”). The Secondary Plan was first enacted in 1982 and was updated in 1998. Ms Johnston, the author of the Department’s Report, states that the original vision of the Plan outlined for the area was never fully realized (Exhibit 2, Tab 10, at p. 31). Ms Johnston maintains in the Report that Merivale Road did not become a competitive location for office buildings as it was intended too. She further maintains that the current Secondary - 5 - PL080239

Plan recognizes that automobile-oriented retail uses will likely continue to dominate the area for sometime.

The Department notes in the Report that unlike the original Secondary Plan, the current version introduces an alternative land use approach that focuses on enhancing urban design, rather than controlling land uses. The Department maintains that the current Plan continues to support a board range of retail uses, but has also been expanded to include additional varied uses, such as residential.

The Report notes that the intent of the most recent Plan “is to improve the area as a place to shop, work, and live by enhancing the relationship between retail, employment, and residential use.” Section 3.2.1.1 of the Secondary Plan permits restaurants. Ms Johnston testified that the proposed fast-food restaurant would fit well in the area making the area more compact and efficient. It is her opinion that the proposal would contribute to the goals and objectives of the Secondary Plan by the intensification of Merivale Road and the development of a vacant site.

In addition, Mr. Casagrande testified that the City’s Official Plan reinforces the need for efficient, compact development that can be served by public transit. He maintains that the City’s Growth Management Strategy is based on six guiding principles. Under these principles there are various policies that identify how the City expects to achieve their Growth Management Strategy. He maintains that the following policies from Section 1.6 of the Official Plan are considered to be most applicable to the proposed development:

 In underdeveloped areas, adding more buildings in appropriate locations increases density;

 Land use intensification, infill development and mixed-use development are reinforced in order to improve the business environment, make service provisions more efficient and enhance the quality of life;

 The existing infrastructure is used more effectively. More compact and infill development reduces the need to extend infrastructure to new areas;

 Likeability is addressed by accommodating new growth and development in a more sustainable manner utilizing compact, used built form principles, including a moderate increase in density; and

- 6 - PL080239

 A mix of land uses, housing types, compact and inclusive development, clustering of neighbourhood facilities and services and excellent pedestrian connections make communities more complete as well as walkable. The attractiveness is increased by proactive urban design guidelines extending to the public realm and the desired relationships between land use, built form, and landscape.

It was Mr. Casagrande’s evidence the proposed development is consistent with the aforementioned policies. He maintains that with no development currently on the subject property, the proposed fast-food restaurant use fits well with the Official Plan’s intention of intensifying vacant lots. He maintains that by bringing the restaurant up to the sidewalk and providing suitable landscaping, the proposed development also meets the Official Plan’s policies with regards to providing pedestrian-friendly environments and shielding parking lots from view.

Mr. Casagrande provided detail testimony that the proposed development was consistent to sections 2.5.1 and 4.11 of the Official Plan. Mr. Casagrande testified that the proposal is compatible and that it enhances the established community and that it coexists with the existing development without causing undue adverse impact on surrounding properties. He maintains that the proposed development is located at the periphery of a residential neighourhood, which is consistent to section 4.11 of the Official Plan.

It was Mr. Casagrande’s evidence that the subject property is designated “Arterial Mainstreet”. The specific policies related to this designation are outlined in Section 3.6.3 of the Official Plan. He maintains that larger lots, varied setbacks, and lower densities are characteristic of Arterial Mainstreets. Streets carrying this designation often contain four or more traffic lanes and do not typically support on-street parking. Parking is usually provided in lots located between buildings and the street. At present, Arterial Mainstreets typically contain single-purpose commercial buildings. However, Mr. Casagrande testified that overtime Arterial Mainstreets are expected to evolve into more compact places that will provide a mix of pedestrian friendly uses.

In Mr. Casagrande’s opinion the restaurant and bar uses are not only permitted in Arterial Mainstreets, they should be considered integral to the stated vision of these streets, as compact forms of development, lively mix of uses and a pedestrian friendly environment. He maintains that restaurant and bar uses are commonly recognized for - 7 - PL080239 their contribution to street front animation. He notes this is particularly true, when site and building designs integrate effectively with the sidewalk areas, through the use of patios and reduced building setbacks, as is the case for this proposal. Mr. Casagrande testified that it is for this reason that the Arterial Mainstreet Zoning (proposed for the subject lands) designation in the City’s Draft Comprehensive Zoning By-law (May 2007) includes restaurants and bars among its permitted uses.

Mr. Casagrande supports his position by noting that restaurants are prominent along Merivale Road and most other Arterial Mainstreet designations within the City.

It was Mr. Casagrande’s testimony that Zoning By-laws generally regulate the type, scale and location of land uses within a property. In terms of scale it was his evidence that the proposed one-storey building for the restaurant has a smaller footprint, than many of the area’s retail and commercial buildings. According to the concept plan the building is expected to occupy approximately 13 per cent of the site. In his opinion, the scale of the building’s Mainstreet façade is encouraging an urban design perspective, because it covers more than 50 per cent of the lot within three metres of the front lot line.

Mr. Casagrande testified that the City’s Urban Design Guidelines for Arterial Mainstreets (“Guidelines”) were carefully considered when developing a concept plan for the proposed fast-food restaurant (Exhibit 2, Tab 18). He maintains that the proposed development will comply with the Guidelines in the following ways:

 The long edge of the building will front directly on the street and moreover will be located at the corner of Merivale Road and Burris Lane, thereby accentuating both street edges and maximizing building mass along the lot frontage;

 Entrance doors for the restaurant will be directly accessible from the sidewalks via Merivale Road and Burris Lane;

 Vehicular access to the site will be located at the rear of the site on Burris Lane, utilizing a secondary street for access while maximizing the distance from the Burris/Merivale intersection;

 The start of the stacking lane will be located at the rear of the building; and

 Landscaping will buffer the parking lot, stacking lane and the street. - 8 - PL080239

The Board notes that in cross-examination, Mr. Clark agreed that the proposal met the Guidelines.

Mr. Casagrande and Ms Johnston testified that in terms of the location of lands uses, the proposal incorporates a zoning envelope that respects adjacent residents and corresponds to the City’s broader policy objectives. Both planners note that the proposed development include a three-metre buffer around the entire parking lot to ensure that adequate space is available for vegetation along the edges of the site and fencing along the rear property line. Ms Johnston notes in the Department’s Report that this application has allowed the City to significantly increase the amount of buffer space found between the proposed parking lot and rear property.

Mr. Casagrande informed the Board that the proposal would have a total of 45 parking spaces (one per 10 square metres), whereas the current requirement is 73 spaces (one per 6.2 square metes). Mr. Casagrande testified that the proposed rate conforms to the New Comprehensive Zoning By-law. Ms Johnston further testified that the Department is satisfied with the amount of parking spaces provided and it conforms to the New Comprehensive Zoning By-law.

Mr. Jack confirmed in his Traffic Impact Report that 45 parking spaces would satisfy the requirements of the Draft Comprehensive Zoning By-law (Exhibit 2, Tab 25, at p. 158). However, Mr. Jack notes that as the Draft By-law is subject to change and that the Nepean By-law is still in effect, as such the Applicants are seeking a reduction to the parking ratio that would be consistent with the Draft Comprehensive By-law.

(ii) City’s and the Resident’s Evidence

On the other hand, it was Mr. Clark’s evidence that the proposal did not meet a number of the goals and objectives of the Secondary Plan, such as:

 Enhance the relationship between the physical elements of residential uses within and adjacent to the area and the commercial component along Merivale Road;

 Provide stability for the adjacent low-density residential neighbourhoods as well as for existing residential uses within the Merivale Road Mixed Use Area; and

 To ensure that development creates a safe, healthy, sustainable, functional, efficient and visually pleasing environment. - 9 - PL080239

In addition, Mr. Clark testified that the proposal did not conform to the general intent and purpose of the Official Plan. Mr. Clark maintains that the proposal did not enhance the established community and that it caused an undue adverse impact on surrounding properties. In summary, it is Mr. Clark’s position that the proposal did not fit well within the physical context of the community.

Mr. Clark testified that on Arterial Mainstreets, development should occur in a way that facilitates the gradual transition in a more urban pattern of land use. He maintained that on Arterial Mainstreets, development should occur in a way that facilities the gradual transition to more intensive forms of development. In his opinion this did not occur in this instance, as the transition from residential to restaurant was abrupt, that the land uses was adjacent to each other, which is contrary to the Official Plan.

Mr. Clark acknowledged that restaurants are common in commercial areas. However, in his opinion, the proposed restaurant would be located too close to the residential area. It was his evidence that this type of restaurant would have a series of peak hours, which would have an adverse impact on the area’s traffic system and the surrounding residential properties. Mr. Clark testified that the most suitable land use for this site would be one that had a more regular traffic pattern, with less peak periods, such as retailing.

Mr. Clark analyzed section 4.11 of the Official Plan and found that the proposal did not meet most of the Compatibility policies. For example, it was Mr. Clark’s evidence that there was not enough parking spaces for the site and that patrons of the proposed restaurant would probably park along the side roads in the adjacent residential areas. Mr. Clark testified that a restaurant is a place of entertainment, a meeting place, where the patrons would stay for prolonged periods of time; that the patrons would come and go throughout the morning, day and evening causing noise and disturbing the residents in the surrounding areas. Furthermore, the patrons’ cars at night would disturb the residents with their lights. Mr. Clark maintains that the patrons leaving the restaurant, particularly at night may cause security and safety problems for the residents in the surrounding areas. - 10 - PL080239

Ms Bradley in her submissions directed the Board to Mr. Jack’s Traffic Report and noted that the projected total of site generated trips for a fast food restaurant, without drive-through window, would result in the 45 parking spaces having to turn-over three times in an hour. Ms Bradley argued that such a high turnover was unlikely to occur. She further argued that this demonstrated that there were not enough parking spaces for the proposal and that this would result in the patrons parking on side roads in the adjacent residential areas.

However, it was Mr. Jack’s testimony that the fast-food rate used in his Report was somewhat high; he stated that few fast-food restaurants, without drive-through windows, would generate between 125 and 215 vehicle trips per hour during the weekday peaks. Mr. Jack maintained that 45 parking spaces were sufficient and there would not be an overflow of patrons parking on side roads in the surrounding residential areas.

It was Mr. Clark’s evidence that the subject site was too narrow for a fast-food restaurant. He testified that the deepest point of the site was 43.9 metres and was as shallow as 36.9 metres. Mr. Clark emphasized that residential properties were adjacent to this narrow site and would have an adverse impact on the residential properties.

Mr. Clark and the residents were concerned with pollution, noise, smell, garbage and sewage pollution caused by the proposal. The residents stated that as a result of the proposal there would be an increased risk of sewage overflow for residents on Trillium and Wallford Way.

The residents stated that approximately 250 members of the Community voiced their concerns against the proposal at the October 15, 2007 public meeting.

The residents had concerns regarding the establishment of a fast-food restaurant on the subject site. The residents stated that there were over 40 restaurants in the area. The residents further stated that they would prefer the site to be developed using one of the other permitted uses under the current CO Block 8 Zone. The residents did not consider the restriction of no restaurant as a constraint in the development of the site. It was the residents’ position that there were a large number of other commercial and business uses available and permitted in either the Merivale Mixed Uses or Arterial Mainstreet zoning. - 11 - PL080239

The Board notes that there were a number of formal complaints submitted in response to the proposal. In addition, a petition was signed by approximately 80 area residents (Exhibit 3, Tab 8. p 30-172). The Board notes that most of the complainants and signatories of the petition were not present at the hearing and could not be questioned under oath as to their concerns and understanding of the proposal. As such, the Board will not put a great amount of weight on the complaints and petition found in Exhibit 3, Tab 8.

(iii) Findings and Reasons

The Board has carefully reviewed the testimonies of all expert witnesses and the residents regarding the issue of whether the proposal is consistent to the Secondary and Official Plans.

Mr. Clark testified that the proposal was not consistent with the Secondary Plan. In summary it was his evidence that the site was too narrow and that the proposed restaurant was too close to the residential area. He maintained that the proposal would have an adverse impact on the area’s traffic flow and system (this issue will be looked at in greater detail in the next section). Mr. Clark stated that there were enough parking spaces and there would be a spillover effect regarding patrons’ parking on the side roads in the adjacent residential areas. He further maintained that the proposal would cause pollution, noise, smell, garbage, and sewage problems.

The Applicants’ witnesses disagreed with the evidence of Mr. Clark and the residents. The Board finds the evidence from the Applicants’ witnesses to be more persuasive and trustworthy. In addition, the Board finds that the testimonies of the Applicants’ witnesses during cross-examination to be consistent and trustworthy.

It was Mr. Casagrande’s and Ms Johnston’s testimony that the intent of the most recent vision of the Secondary Plan was to improve the areas as a place to shop, work and live by enhancing the relationship between retail employment and residential use. The Secondary Plan permits restaurants. In fact, as the residents’ noted there were many restaurants already located in the area. Mr. Casagrande and Ms Johnston testified that the proposed restaurant fits well in the Neighbourhood making the area more compact and efficient. The Board agrees with the evidence of Mr. Casagrande and Ms Johnston and finds that the proposal does fit in the existing area and that it - 12 - PL080239 makes the area more compact and efficient. As such, the Board finds that the proposal is consistent with the Secondary Plan.

In addition, the Board agrees with Mr. Casagrande and Ms Johnston that the proposal is consistent to the Official Plan for the following reasons:

 By increasing the density in underdeveloped areas through intensification, using existing infrastructure to its full capacity and encouraging workability;

 The proposed development complies with the uses permitted under the Arterial Mainstreet designation and satisfies policies that promote storefront massing and screening of parking and vehicular surface areas;

 Bringing the proposed restaurant up to the sidewalk and providing suitable landscaping, the proposed development also meets the Official Plan’s policies with regards to providing pedestrian-friendly environments and shielding parking lots from view;

 The proposed development complies with the Official Plan’s policies with regards to providing a compact form of development, a lively mix of uses and a pedestrian friendly environment;

 The proposed development complies with the Official Plan’s policies with regards to providing a compact form of development, a lively mix of uses and a pedestrian friendly environment; and

 The proposed development complies with the Guidelines.

The Board finds that the subject property is currently vacant creating a break in this otherwise developed section of Merivale Road, an Arterial Mainstreet. The Board finds that given the relatively small size of the property and the dominance of retail uses in the surrounding area, restaurant or retail use is a suitable use for this site. The Board further finds that if developed in accordance with the Concept Plan, the development will further the objectives of the Arterial Mainstreet designation.

The Board agrees with Mr. Casagrande and Ms Johnston that matters that relate to pollution can be dealt with though the City’s Site Plan Application review process. The Board finds that Mr. Clark and the residents did not provide any empirical and documentary evidence to support their position that the proposal would have an adverse impact on pollution, noise, smell, garbage and sewage. - 13 - PL080239

The Board notes that Stantec Consulting conducted a servicing feasibility study in support of the proposed amendment (noted in Exhibit 2, Tab 7, at p. 17). The study shows no significant impacts on servicing capacity or stormwater management systems resulting from the proposed development. In addition, Ms Johnston testified that the proposal would have no significant impacts on the servicing capacity or stormwater management systems and that the existing infrastructure would accommodate the proposal. The Board finds that Mr. Clark and the residents did not provide any empirical and/or documentary evidence to support their position that the proposal would increase the risk of sewer overflow for residences on Trillium and Wallford Way. The Board relies on the evidence of Ms Johnston, Mr. Casagrande and the feasibility study that the proposal will not have an adverse impact on servicing capacity and/or stormwater management systems.

5. TRAFFIC

As previously mentioned Mr. Clark and the residents had a number of concerns regarding the proposed development’s impact on the area’s traffic flow, particularly along Merivale Road and Burris Lane.

Mr. Clark testified that the proposed development did not maximize the efficiency of traffic flow within the Merivale Corridor so that undesirable traffic infiltration into adjacent residential neighourhoods would be minimized. Nor did the proposed development implement appropriate traffic and site planning measures in order to minimize potential adverse traffic-related impacts on existing residential uses.

The Board notes that Mr. Jack in cross-examination acknowledged that a fast- food restaurant land use would generate the greatest number of trips compared to other land uses for the site. However, Mr. Jack did testify that many of trips would be pass-by. In Mr. Jack’s opinion, the area’s local roadways were capable of absorbing the resulting traffic.

In fact, Mr. Jack testified that if the vacant lot was used for office space, it could have a greater adverse impact on the area’s traffic system, than that of a fast-food restaurant. It was Mr. Jack’s evidence that under the existing zoning, the subject site could be developed to provide a maximum of 3,810 square metres of office land use. He maintains that the development could consist of a three-storey office building with - 14 - PL080239 underground parking and if so would have a greater impact on the area’s traffic system than the proposal. In Mr. Jack’s analysis this office land use would have approximately 11 fewer vehicle trips per hour than would be generated by the fast-food restaurant during the weekday AM peak hours. Mr. Jack projected that during the weekday PM commuter peak hour and Saturday peak hour of site-traffic generation, a Medical-Dental Office Building would generate 26 and 9 additional vehicle trips per hour, respectively, than the fast-food land use. However, he notes that a significant proportion (i.e. 55%) of trips generated by the proposed fast-food restaurant would be pass-by and would not add new trips to Merivale Road. Mr. Jack maintained that the fast-food restaurant land use would add fewer vehicle trips per hour to Merivale Road; than would a three-storey 3,810 square metre Medical-Dental Office Building land use, during the weekday AM and PM commuter peak hours and Saturday peak hour of traffic generation, respectively.

Mr. Jack, Mr. Casagrande and Ms Johnston testified that Merivale Road is an Arterial Road and as such it is designed to carry heavy volumes of traffic over long distances. Mr. Jack, Ms Johnston and Mr. Casagrande maintained that Arterial Roads, such as Merivale Road, function as the City’s major public corridors and would therefore accommodate traffic generated by all forms of travel. Mr. Jack, Ms Johnston and Mr. Casagrande testified that as communities grow, incremental traffic increases could be expected on all roadways, particularly major thoroughfares, such as Merivale Road.

Ms Johnston testified that the Planning and Traffic Staff reviewed Mr. Jack’s Traffic Impact Study and had no concerns with the content and/or methodology used in the Report. The Department noted in their Report that the area’s infrastructure was similarly equipped to support traffic generated by the Merivale Market. It was further noted in the Department’s Report that the volume of traffic on Burris Lane had actually decreased by 20 per cent in the past 10 years.

Mr. Clark and the residents were opposed to the location of the proposed site access (via Burris Lane). The residents would have preferred to replace the proposed access with a right in/right out access via Merivale Road. Mr. Clark and the residents stated that the proposed restaurant would generate more traffic than could be safety accommodated on Burris Lane. There was a concern that providing access from Burris - 15 - PL080239

Lane would increase the amount of cut-through traffic into the adjacent residential neighbourhood.

Mr. Jack, Ms Johnston and Mr. Casagrande testified that there would not be an increase in cut-through traffic as a result of the proposal. It was Ms Johnston’s evidence (as noted in the Department’s Report) that to arrive at from Burris Lane one had to travel at least four streets, none of which were arranged in a grid pattern. Ms Johnston maintained in the Department’s Report that there was a five- kilometre segment of Meadowlands Drive between Woodroffe Avenue and Prince of Wales Drive that was entirely occupied by residential uses (with the exception of the Merivale Road intersection). In the opinion of Mr. Jack, Ms Johnston and Mr. Casagrande the main generators of cut-through traffic are likely to be those who live or work in the nearby area. The Department states in their Report “it is perceivable that only those familiar with the area will be able to navigate through the circuitous residential community with ease.”

It was Mr. Clark’s and the residents’ position that the proposal would be better served if access to the site were supplied via Merivale Road as oppose to Burris Lane.

Mr. Jack, Ms Johnston and Mr. Casagrande disagreed with Mr. Clark and the residents and believed that Burris Lane is the preferred location regarding site access. Ms Johnston testified that a Merivale Road access would create a number of safety concerns. She maintained that Merivale Road would be unsuitable for site access, because of the heavy traffic volumes and high speeds accommodated along this thoroughfare. In addition, access from Merivale Road would create a problem, as it would interfere with the functioning of the existing roadway. The Department’s Report notes that providing access from the Mainstreet was also undesirable from an urban deign perspective; a Merivale Road access would result in the loss of area available for landscaping, drawing attention to the parking lot, rather than the public realm.

It was Mr. Jack’s opinion that both the Merivale/Burris and Burris/site access would operate at good Levels of Service (LoS B or better) during the AM, PM and Saturday peak hours. He maintained that the existing westbound left-turn on Merivale Road would be sufficient to accommodate projected left-turn volumes. - 16 - PL080239

Mr. Jack testified that Burris Lane serves the community as a whole. He maintained that few “new” site trips are anticipated to/from south of Burris Lane which is reasonable given the nature of the development and of the significant contribution of pass-by traffic. However, Mr. Jack maintained that any vehicles entering the site from south of Burris Lane would more likely be pass-by traffic and therefore would not contribute to an increase in traffic on Burris Lane or the Burris/Eleanor intersection.

Mr. Clark and the residents were concerned with pedestrian safety if access to the site was provided via Burris Lane, as pedestrians would frequently use local streets to access nearby shopping.

The Board notes that the Department’s Report concluded that the concern of pedestrian safety was unfounded. The Department maintained that the potential for conflict between pedestrians and vehicles was perceivable greater along Merivale Road, as vehicles often exit onto arterials at higher speeds, to keep up with fast moving traffic. The Department noted in their Report that pedestrians would prefer to travel on the sidewalk, located to the north side of Burris Lane, which would be void of access.

The Board has carefully reviewed the evidence regarding the proposal’s impact on the area’s traffic flow and system. Mr. Clark and the residents raised a number issues, each was specifically addressed by Mr. Jack, the Department (through Ms Johnston and the Department’s Report) and Mr. Casagrande in frank, thoughtful and detailed manner. The Board notes that it was only the Applicants that provided an expert witness in traffic. Ms Bradley acknowledged and did not object to Mr. Jack’s qualifications. In fact, the City has retained Mr. Jack on a number of occasions as an expert in transportation planning and management. The Board was impressed with Mr. Jack’s qualification and experience and finds his testimony in chief and cross to be impartial, clear, balanced, objective and trustworthy and has relied heavily on his testimony regarding the traffic issues that have been raised by Mr. Clark and the residents.

The Board further notes that the City’s Planning and Traffic Staff reviewed Mr. Jack’s Traffic Impact Study and had no concerns with the content and/or methodology used in the said Report. In addition, the City’s Planning Department concluded that the proposal did not have any unacceptable adverse impact on the area’s traffic system and flow. The Board finds that Mr. Clark and the residents did not provide any empirical and - 17 - PL080239 documentary evidence to support their position that the proposal would have an adverse impact on area’s traffic system and flow. The Board finds the evidence of the Applicants’ witnesses to be more persuasive and trustworthy than that of Mr. Clark and the residents. Based on the aforementioned reasons, the Board finds that the proposal does not have any unacceptable adverse impact on the area’s traffic system.

6. CONCLUSION

The Board has carefully reviewed all of the oral and documentary evidence provided by the expert witnesses and the residents, as well as the submissions of Counsel. The Board found the residents of the Community Association to be sincere and frank. However, the Board must focus on the land use planning and whether the proposal conforms to the Official Plan and is consistent with the proposal and whether it has regard for provincial interest as set out in Section 2 of the Planning Act.

As mentioned throughout this Order, the Board finds the planning evidence of Mr. Casagrande, Ms Johnston and the traffic transportation evidence of Mr. Jack to be more trustworthy and persuasive than that of Mr. Clark and the residents. In addition, the Board notes that the Applicants’ witnesses remained unshaken and trustworthy while under cross-examination.

Ms Bradley argued that By-law No. 2008-38, which excludes restaurants from the subject site, constitutes good planning and meets the general policy and intent of the PPS and the Secondary Plan and Official Plan and should stand as it is. Ms Bradley further argued that pursuant to section 2.1 of the Planning Act, when Municipal Council makes a decision that relates to a planning matter, the Board shall have regard to that decision. It was Ms Bradley’s position that Municipal Council carefully considered this planning matter and that the exclusion of restaurants in the By-law is based on good planning and that it should remain as is.

The Board acknowledges that it must consider Council’s decision in this planning matter and has carefully done so in this case. But the Board must also consider the evidence at the hearing and its application to other parts of the Planning Act, such as whether it conforms to the Secondary Plan and Official Plan. In addition, the Board has to consider whether the proposal is consistent with the PPS and has regard for provincial interest as set out in Section 2 of the Planning Act. - 18 - PL080239

The Board notes that the evidence revealed that City’s planning staff and the Planning Environment Committee each supported the proposal.

The Board finds for the reasons mentioned in this Order that the proposal constitutes good planning for the subject lands and conforms to the Secondary Plan and the Official Plan. In addition, the Board finds that the proposal is consistent with the PPS and has regard for provincial interest as set out in Section 2 of the Planning Act.

THE BOARD ORDERS that the appeal against By-law No. 2008-38 of the City of Ottawa is allowed and that the By-law is amended by removing from “Clause 7:10:3 of By-law No. 100-2000 entitled “Zoning By-law for the Urban Areas of the City of Nepean” the portion that states “restaurant, restaurant fast-food and restaurant take-out are not permitted”.

The Board so Orders.

“M.G. Somers”

M.G. SOMERS MEMBER