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And we quote . . .

Text of recommendation.

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The Ridgeway Herald special web release

Town council spent nearly an hour trying to pick a date to hold a public meeting in order to reverse the Bay Beach zoning to stop the Molinaro condo project.

For your amazement, the first 25 minutes have been transcribed verbatim.

Often when people come to Town Council meetings they shake their heads and ask, “Is it always like this?” I nod. And now that I am offering subscriptions to The Ridgeway Herald, they are only too happy to help a poor boy out — if even only out of pity.

Lubberts: In the motion we passed it said that we will repeal bylaw 26-10, and in this report here that we have under summary of recommendations “that council select a date for a statutory public meeting regarding its intent to rezone Bay Beach,” and I’m a little concerned with the fact that the motion asks for repealing bylaw 26-10 and the recommendation is that we rezone the property. I’m a little concerned about that.

Steckley: Mr. Mostacci can you comment on that?

Mostacci: Certainly. There really is no need to be concerned because you actually don’t repeal zoning bylaws. What you do is you change zoning. That’s how the Planning Act is structured. You can’t just repeal a zoning bylaw. You actually have to go back and change the zoning. I thought the report was quite explicit in terms of identifying that. What you’re looking at doing is changing the zoning from the site specific zone that was established by bylaw 26-10 back to the general commercial C2 zone that existed prior to council’s adoption of that amending zoning bylaw.

Elapsed time 1:20

Lubberts: If this is the case then why wasn’t that when we made the motion that the motion wasn’t changed as to what Mr. Mostacci was just saying in that you can’t repeal the bylaw but the motion was to repeal the bylaw. I’m just curious why wasn’t that changed.

Mostacci: I don’t believe that there was any input requested from staff at the time that motion was tabled.

Lubberts: I’m not quite clear on what the answer was.

Steckley: I think what he’s saying is when that motion was brought forward the motion was prepared already, it was read and voted on. It wasn’t a request of staff to comment on that, whether or not it was worded properly, of if the wording in it was appropriate.

Lubberts: Couldn’t that have come back later and said obviously you know there was a mistake in the motion that we don’t repeal bylaws, we just amend them or rescind them. Maybe rescinding the bylaw 26-10 would have been the proper wording.

Steckley: I think if I understand staff correctly, please correct me if I’m wrong, but the correction is tonight in the report. The correction has come forward in the report from the CAO. Mr. Schlange, is that correct?

Schlange: Yes.

Elapsed time 2:57

Steckley: Councillor Lubberts you still have the floor.

Lubberts: So then on page 109 of the report . . .

Martin: Point of order, Mr. Chair. Before we get into this, the recommendation is to choose a date and the mover has suggested no date. So I suggest that the mover suggest a date and council can select a date to have the statutory public meeting which we have on the floor. I suggest he chose one of those dates and debate the timing.

Steckley: If I’m not mistaken Mayor Martin, I believe Councillor Lubberts is trying to get to a portion of the report as well. The date I believe will come forward. (To Lubberts) You are going to propose a date but you’re concerned you said the intent to rezone on the first page, and I underlined it when you said it, you have concerns that it doesn’t say the words ‘repeal the bylaw.’

Lubberts: Exactly, Mr. Chair, and also on page 109 of the report, when you look at it . . .

Martin: Point of order, Mr. Chair. I believe that I asked and I’d like a ruling on that. You have a motion on the floor that council is going to come up with a date and I’d like to have that date dealt with. Council select a date of the meeting and then we can get into the body of the motion. Let’s just get a date on the floor before we discuss the motion and I would like you to ask the mover to pick one of those dates prior to Councillor Lubberts continuing.

Steckley: But the summary of recommendations on the first page of the report is not just select a date. It says regarding its intent to rezone the Bay Beach Land from general commercial holding C2-427 to general commercial C2 zone and I believe that’s what Councillor Lubberts is referring to. But if it’ll make you feel better, Councillor Lubberts, would you like to put a date on the floor so we can have that for discussion at the same time.

Lubberts: On page 109 and to clarify where we’re at, are we going to go with a date and continue on with the report?

Steckley: Let’s set a date then we’ll carry on with your questions on the report.

Elapsed time 5:22

Lubberts: I think there was some discussion about Mr. Shular. Councillor Shular was going to be away for the first date. I’m thinking of looking at the second date of newspaper notice on March 26 and the public meeting date on April 18. Is that correct?

Steckley: That’s correct. It came out in our meeting today that Councillor Shular has a vacation booked and paid for and will not be here for the April 4th date and has respectfully requested that we not choose that date so that he can be present for the public meeting and he would be back in time for the April 18th date. Is that the date you’d like to put on the floor then?

Hill: I’d be happy to do that. I moved it so procedurally I need to put that date on the floor so the date that I would put on the floor would be in respect of Councillor Shular, April 18th and March 26th.

Steckley: So the newspaper notice date would be March 26th and the public meeting date would be April 18.

Elapsed time 6:36

Steckley: Back to Councillor Lubberts and your concerns about the wording.

Lubberts: Thank you Mayor, er, Mr. Chair. Going back to page 109 of the report. There is a proposed bylaw to amend bylaw 129-90. Is that what this page 109 is, the draft bylaw?

Steckley: Mr. Schlange, can you comment on that because — Mr. Mostacci, thank you.

Mostacci: Are you referring to Appendix 1? Appendix 1 is the draft bylaw. So that’s the bylaw. It’s important to have the draft bylaw because that’s the subject of the public meeting. And this is the bylaw that gets circulated to public agencies for comments. This is the bylaw that the Council will ultimately adopt, and what it does is change the zoning from general commercial holding C2-427 to general commercial C2 zone in the area — if you flip two pages — the area identified as Part One on the schedule. So then the entire land holdings for Bay Beach on the south side as well as the north side will be zoned C2 as they were prior to the adoption of bylaw 26-10.

Elapsed time 8:16

Lubberts: Bylaw 26-10, it wouldn’t hurt to have bylaw 26-10 mentioned in this here draft bylaw saying that bylaw 26-10 would no longer be in existence. Bylaw 26-10 would be rescinded or bylaw 26-10 would be deleted. Bylaw 26-10 exists. It’s a document that’s out there and it has stipulations on it. It has conditions on it and ultimately what you’re telling me is that if you amend bylaw 129-90 you’re ultimately deleting bylaw 26-10. Is that correct?

Mostacci: No. That’s not what I’m saying. What I’m saying is that you can’t just repeal a zoning bylaw. It’s not possible. I don’t know how to say it any more explicitly. So bylaw 26-10 is there. What you’re effectively doing is rezoning the site-specific zoning that it imposed. Site-specific zone C2-427 will not exist on the property. So when you look at the property, it will be zoned general commercial C2 zone. Nothing more, nothing less.

Steckley: Councillor Lubberts, if you look at that, your page 109, the first ‘whereas’, the bottom section of that ‘whereas’ talks about the general commercial C2 zone “which zoning was in effect on the property prior to passage of 26-10”. So in effect, Mr. Mostacci, correct me if I’m wrong, it’s saying that by passing this bylaw that you see on that page 109, it takes the zoning back to what it was before bylaw 26-10.

Elapsed time 10:28

Lubberts: I understand that Mr. Chair, and if I can read it myself “which zoning was in effect on the property prior to the passage of bylaw 26-10.” So the passage of bylaw 26-10 happened, so and we had 129-90 there. So if we’re going to amend bylaw 129-90 then what you’re saying in effect we’re taking away the passage of 26-10. So bylaw 26-10 is no longer a passed bylaw. Is that what you’re telling me? 26-10 needs to be removed somewhere. It’s there. It’s a document that we have and there’s nothing in here that says 26-10 is going away, and I would like some kind of clarification that in the event that we do this, bylaw 26-10 no longer exists. Can we make that kind of amendment on this here draft bylaw so that we all understand that when we amend bylaw 129-90, bylaw 26-10 will no longer exist. Can we do that as an amendment?

Steckley: Mr. Mostacci, is that something that can be added to the zoning bylaw?

Mostacci: I would defer to the town solicitor but I don’t know of what other way or possible method I could use to explain that the zoning provisions established by bylaw 26-10 will no longer exist if council chooses to adopt this. It’s gone. But you can’t vaporize a bylaw. The bylaw was adopted. It’s there. It just doesn’t apply to this property any longer. Again, perhaps the town solicitor can supplement my commentary.

Elapsed time 12:37

Salter: The answer to Councillor Lubberts questions is no. The bylaw 26-10 was an amending bylaw. It amended the comprehensive zoning bylaw [129-90]. It is, of course, a fact the zoning bylaw has been amended. If you pass the draft bylaw, it will supersede the impact of bylaw 26-10. 26-10 doesn’t disappear. It’s part of the legislative history, but the effect of this is superseded. You cannot just repeal it.

Elapsed time 13:21

Steckley: Thank you for that Ms Salter. Mr. Mostacci, I heard you say that effectively the zoning provision of 26-10 will no longer exist. Is that correct? Did I write that? If we pass this bylaw, the zoning provisions of 26-10 will no longer exist?

Mostacci: Yes, that is effectively correct. Because you’re changing the zoning schedule. Zoning is made up of a schedule, which is a map, and the regulations correspond to the map. So on the map you change the zoning bylaw schedule for C2-427 back to C2. So when you look at the Bay Beach property after Council adopts the bylaw, it’s going to be C2. There’s no need, there’s no further reference on the schedule back to site-specific zone 427. It’s gone. So the parent regulations of the zoning bylaw as they pertain to the general commercial C2 zone will apply to the site from property line to property line.

Elapsed time 14:40

Steckley: Thank you Mr. Mostacci. Would it be appropriate under that first ‘whereas’ where I read “which zoning was in effect prior the passage if bylaw 26-10” in order to appease Councillor Lubberts putting in new wording “and therefore the zoning provision of 26-10 would no longer exist.” Would that serve any purpose?

Mostacci: I don’t believe it would serve any purpose but I’ll yield to the town solicitor with respect to whether that’s appropriate.

Salter: Anything you add to the ‘whereas’ section is background information. You can put anything there you like. It has no operative effect.

Elapsed time 15:40

Lubberts: If we use your recommendation that the effect of bylaw 26-10 will no longer exist, we can’t use that in the ‘whereas’ because that is the background. We can use that in the third ‘that’ — that in effect amending 129-90 in effect makes the provisions of bylaw 26-10 not to exist, just like we were saying. So we can put that into a ‘that’ just for clarification and like Mr. Mostacci said it probably doesn’t serve any purpose, but let’s err on the cautious side. Let’s just be cautious about this and make sure 26-10 is mentioned and that 26-10, the provisions of 26-10 will no longer exist.

Salter: The numbered sections of the bylaw are the operative provisions. That’s where you actually do something. You can not put that in the operative provisions of the zoning bylaw. You can add it to the ‘whereas’ clauses. As I said, they’re simply background — a preamble to explain the history of the process. They have no operative effect other than provide background information to people who are reading the bylaw. They don’t actually do anything. If you’d like to add something to the ‘whereas’ section, certainly do so. But I do not recommend making changes to the operative provisions of the bylaw which are paragraphs one, two and three.

Elapsed time 17:39

Lubberts: Just to go further with that, when we drafted up this draft bylaw, if we would have added the third ‘that’ in this draft bylaw because this is just a draft bylaw. It’s not the bylaw we’re going to use. We could have added it then we could have the third ‘that’ in there just for clarification: “the conditions of bylaw 26-10 will no longer exist once we amend bylaw 129-90.” Could we have done that at the time we drafted this up?

Salter: No I would not have put that in there at the time I drafted it up because it doesn’t do anything. The operative provisions are there to actually make the legislative changes that you want to achieve. I would not recommend putting those in the operative provisions because, as we’ve explained, we are not repealing bylaw 26-10. What you are attempting to do is rezone the property to effectively supersede the amendments that were made by 26-10. That’s what this bylaw does. If you want to add something to the background — an explanatory note — the proper place to do that is in the ‘whereas’ section.

Elapsed time 19:01

Lubberts: Well then we could add into the ‘whereas’ section “whereas it was [muffled] that by amending bylaw 129-90 in effect we are taking away the provisions of 26-10”. We could do that in the ‘whereas’ section.

Salter: I believe I said that.

Lubberts: Well then could we make that amendment to this here draft bylaw?

Steckley: If you want to make the amendment, Councillor Lubberts, make the amendment.

Elapsed time 19:35

Lubberts: Whereas by repealing, or by . . .

Steckley: At the end of the first ‘whereas’ are you . . .

Lubberts: . . . by amending bylaw 129-90 in effect we are taking away the provisions of bylaw 26-10.

Steckley: That amendment is on the floor. Comments or questions on the amendment.

Collard: Just for my clarification is your concern that the provisions existing in 26-10 may come back at a later date if they’re not removed? That’s the reason you’re making this motion?

Lubberts: There are provisions in bylaw 26-10. For instance we have setbacks that are on the property that will allow for certain types of buildings. There are parking issues and parking conditions on bylaw 26-10 that need to be resolved, that need to be taken out. So if we just take bylaw 26-10 and say yes, in effect, this is what we’re doing by amending 129-90; we are also taking all of the provisions away from 26-10. Basically just for [muffled].

Collard: One last question and I would like to take a vote on this. To Mr. Mostacci or to Ms Salter, by passing this bylaw we will in effect be removing the provisions of bylaw 26-10. There will be no issue in the future for Councillor Lubberts concerns.

Salter: All of the provisions that Councillor Lubberts is referring to are in that general commercial holding C2 427. The purpose of this bylaw that council is looking at in draft form this evening is to remove the designation and replace it again with general commercial C2 zone which was what was there previously, and those provisions will be gone if the bylaw is eventually passed by council.

Mostacci: I just want to supplement that to further Councillor Collard’s commentary so that it’s clear. The 427 site-specific regulation will be gone. And if council adopts this bylaw it has to go through the full planning process. You understand that. If council then chooses to re-establish those, then you have to pass another bylaw just like this to re-establish it. They can’t arbitrarily be done. Zoning is governed by the Planning Act. Any change in zoning, any change in a number or a word requires a zoning bylaw amendment and the process is always the same.

Collard: . . .

Martin: Call the question.

Steckley: Councillor Passero asked that he speak to the amendment before we call the question. I’ll give him a chance.

(Passero passed on the opportunity.)

Steckley: On the amendment, all those in favour of the amendment. Opposed? It’s carried.

Elapsed time 24:09

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  1. Chris | May 7, 2011 | Reply

    Sweet Mother of God . . . Poor Salter and Mostacci must have concussions from banging their heads on the table.

  2. Mike Cloutier | May 7, 2011 | Reply

    That’s only the first 24 minutes. There was another 33 of that.

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