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1993-05-25_Minutes 84-125 COMMON COUNCIL MAY 25,1993 At a meeting of the Common Council, held at the City Hall in the City of Saint John, on Tuesday, the twenty-fifth day of May AD., 1993, at 7:00 o'clock p.m. present Elsie E. Wayne, Mayor Councillors Chase, Coughlan, Gould, Knibb, McAlary, Rogers, Trites, A Vincent and M. Vincent - and - Messrs. 1. Totten, Acting City Manager; F. Rodgers, City Solicitor; D. Wilson, Commissioner of Finance; C. Robichaud, Assistant City Manager - Operations; J. C. MacKinnon, Commissioner of Environment and Infrastructure Services; S. Bedford, Commissioner of Development Services; S. Armstrong, Director of Engineering; D. Logan, Purchasing Agent; J. Baird, Manager- Development Division; R. Pollock, Planner; G. Tait, Deputy Fire Chief; A Martin, Assistant Deputy Chief of Police; Mrs. M. Munford, Common Clerk; and Ms. C. Joyce, Assistant Common Clerk. Reverend Philip Ward of St. Luke's Anglican Church offered the opening prayer. On motion of Councillor Knibb Seconded by Councillor McAlary RESOLVED that minutes of the meeting of Common Council, held on May 17, 1993, be approved. Question being taken, the motion was carried. The Mayor welcomed to the Council Chamber members of the Saint James Church Scout Troop to whom she briefly explained the Council meeting. (Councillor A Vincent entered the meeting.) The Mayor displayed a souvenir program of Saint John Skyfest First Annual Airshow 1993, and welcomed to the Council Chamber Messrs. Bruce Garvin, Bob Geer and Ms. Georgie Brown, the organizers of Skyfest to be held at the Saint John Airport on May 29 and 30; and Mr. Garvin addressed Council in this regard and outlined the schedule of events. The Mayor referred to remarks made by Mr. George Jenkins, MLA - Saint John East, at the May 20 Arbor Day ceremonies at Ross Memorial Park in Saint John tracing the tradition of Arbor Day to 110 years ago in Saint John history; outlined the procedure for a school to become an Environmental Green School; and presented plaques to students from East Saint John School and the Forest Hills School on having achieved the Green School status. Mr. E. Kraglund, Principal of Forest Hills School, displayed the Green School banner, and the students presented an environmental trophy to the Mayor to display in her Office for one week, and the students, in unison, expressed appreciation to the City of Saint John for the plaque and its support. The Mayor commended the following students of a special class at Forest Hills Elementary School: Shelly Price, Michael Taylor, Todd Fudge, Patricia Ward and Sabrina Coggan for their coloured posters, which she displayed at this time. The Mayor proclaimed June 5 - 13 as Tennis Week; June as Tourette Syndrome Awareness Month; June as AL.S. (Amyotrophic Lateral Sclerosis, more commonly known as Lou Gehrig's disease) Awareness Month; May 28 to June 6 as Canada's Fitweek; and May 31 to June 6 as National Access Awareness Week, in the City of Saint John; and noted the Quilt Fair scheduled for May 31 to June 6 at the Aitken Bicentennial Exhibition Centre, being hosted by the Marco Polo Quilters' Guild. The Common Clerk advised that the necessary advertising was completed with regard to (a) a proposed Municipal Plan amendment to redesignate on Schedule 2-A, the Future Land Use Plan, a property located at 47-51 Baxter Road (a 84-126 COMMON COUNCIL MAY 25,1993 portion of NBGIC Number 311308), from Low Density Residential to Light Industrial classification; and (b) the proposed re-zoning of the same portion of land from "RS-2" One- and Two-Family Suburban Residential to "1-1" Light Industrial classification, to permit the portion of land which contains an autobody shop to be subdivided and re- zoning from "RS-2" One- and Two-Family Suburban Residential to "1-1" Light Industrial classification, so that the business may be expanded, as requested by Mr. Raymond MacMurray, and that no written objections were received in this regard. Consideration was given to a report from the Planning Advisory Committee submitting copies of the Planning Department's report and six letters objecting to or expressing concern with regard to the above proposal, which the Committee considered at its May 18 meeting at which the applicant indicated that the proposed addition to the existing autobody shop had been withdrawn from his proposal and agreed that an opportunity for discussions with Planning staff would be beneficial, and no one appeared to voice concerns against the proposal; and recommending that the public hearing be held as advertised but no decision be made to allow staff an opportunity to meet with the applicant to discuss the revised proposal as indicated by the applicant. Mr. Raymond MacMurray, operator of Murray's Collision Centre, was present in support of his application; and explained that, while it was his intent to re-zone the property to expand his business and include an office, with the economic climate the way it is he has decided not to do so; but as he has a chance to sell his home which is on the same parcel of land, he now wants to subdivide the subject property so that he can sell his home and continue with, but not expand, his business. Mr. Baird clarified that Mr. MacMurray related to the Planning Advisory Committee basically what he related to Council, that he would like to revise his application to delete the expansion of the autobody business, and that staff will discuss this issue with the applicant to determine what implications that has with respect to the recommendation. On motion of Councillor Trites Seconded by Councillor A. Vincent RESOLVED that as recommended by the Planning Advisory Committee, the application of Mr. Raymond MacMurray for a Municipal Plan amendment and re-zoning of 47-51 Baxter Road, be laid on the table to allow staff an opportunity to meet with the applicant to discuss the revised proposal as indicated by the applicant. Question being taken, the tabling motion was carried. The Common Clerk advised that the necessary advertising was completed with regard to (a) a proposed Municipal Plan amendment to redesignate on Schedule 2-A, the Future Land Use Plan, a parcel of land at 2281 Loch Lomond Road (NBGIC Number 327114 and part of Number 327122), located on the northeast corner of Loch Lomond Road and Foriere Drive, from Low Density Residential to District Centre Commercial classification; and (b) the proposed re-zoning of the same parcel from "RS- 1" One- and Two-Family Suburban Residential and "RM-1" Three-Storey Multiple Residential to "B-2" General Business classification, to permit the property to be used for commercial purposes, including a banquet hall for dinners, dances, bingos and community events, as requested by Diesel Power Services Ltd., and that letters in opposition to the proposed amendments have been received from Mr. & Mrs. Ronald Hanson and Mr. Gerry Dort. Consideration was also given to a report from the Planning Advisory Committee submitting a copy of the Planning Department's report and seven letters in objection to the above proposal considered by the Committee at its May 18 meeting at which the applicant was not present and a number or area residents were present in opposition to the proposal; and recommending that the application not be approved. Mr. George Hewitt of 2259 Loch Lomond Road appeared in opposition to the above proposal due to the fact that the road is so dangerous where the driveway accesses the subject property, and he does not want a dance hall at the back of his property, although once re-zoned, it is his opinion that it is not likely to be only a dance hall. Mr. Hewitt suggested that, if the proposal were approved, it would be necessary to 84-127 COMMON COUNCIL MAY 25,1993 install traffic lights or have traffic cars dispatched to the scene every time there is something going on because the residents in the area have problems enough now getting in and out of the area. Mr. Gerry Dort, owner of the property at 2249 Loch Lomond Road, spoke in opposition to the above application and, having cited instances of vehicular accidents which occurred in the area of the subject property on the basis that the majority of them occurred as a result of the sharp turn in the road, noted that the only entry and exit to the property in question is located on this particular corner; and suggested that the location of a building on this property would create more vehicular traffic Mr. Dort urges Council, for the safety of the members of the community and the people who travel Loch Lomond Road to access the Saint John Airport, to take great consideration in giving approval to the re-zoning of the subject area as it is a very dangerous corner and, while it will continue to be a dangerous corner without re-zoning, it will be far more dangerous with the re-zoning. On motion of Councillor Chase Seconded by Councillor M. Vincent RESOLVED that as recommended by the Planning Advisory Committee, the application of Diesel Power Services Ltd. for a Municipal Plan amendment and re-zoning of 2281 Loch Lomond Road be denied. Question being taken, the motion was carried. On motion of Councillor M. Vincent Seconded by Councillor Trites RESOLVED that the correspondence regarding the above application be received and filed. Question being taken, the motion was carried. The Common Clerk advised that the necessary advertising was completed with regard to (a) a proposed Municipal Plan amendment to redesignate on Schedule 2-A, the Future Land Use Plan, an area of land being approximately 10 acres in size with frontage on both Westmorland Road and McAllister Drive (part of NBGIC Number 307397), from Major Institutional to District Centre Commercial classification; and (b) the proposed re-zoning of the same area of land from "P" Park to "SC" Shopping Centre classification, to permit the development of an un-enclosed neighbourhood service mall, as requested by Protective Developments (N.B.) Ltd., and that three letters have been received in this regard, one from Parkway Mall in opposition to the proposal; one from the law firm of Palmer, O'Connell, Leger, Roderick, Glennie, solicitors for Clearview Mobile Homes Ltd., and one from Linda Gordon, regarding the proposal. Consideration was also given to a report from the Planning Advisory Committee submitting a copy of the Planning Department's report and letters of objection and a petition considered by the Committee at its May 18 meeting at which representatives of the applicant and the land owner made presentations in support of the application, and Uptown Saint John Inc. and Mr. Jim Watt spoke in opposition to the proposal and were concerned that the potential impact of the development on existing and approved commercial developments had not been satisfactorily addressed in the market impact study; advising that the applicant requested that the proposed lube shop be permitted as proposed and the Committee modified the recommendation from staff to provide for the lube at a location acceptable to the applicant and the Development Officer; and recommending that (1) Common Council amend the Municipal Development Plan by redesignating on Schedule 2-A from Major Institutional to District Centre Commercial classification an approximately 5-acre portion of a parcel of land with frontage on both McAllister Drive and Westmorland Road, being part of NBGIC Number 307397; and (2) Common Council re-zone the same 5-acre area of land from "P" Park to "SC" Shopping Centre classification subject to a resolution pursuant to Section 39 of the Community Planning Act setting out the following: (a) development of the re-zoned area shall be limited to the proposed unenclosed mall with an area of no more than 60,000 square feet of space, in accordance with the applicant's proposal but not including the proposed lube shop unless an agreement can be reached between the applicant and the Development Officer for a more acceptable location; (b) drainage of the site will be constructed in accordance with a detailed drainage plan to be prepared by the applicant, 84-128 COMMON COUNCIL MAY 25,1993 and approved by the Chief City Engineer; (c) location of access will be generally in accordance with the proposal, however, detailed location, design and reinstatement to be approved by the Chief City Engineer; (d) parking area shall be paved and enclosed with poured-in-place concrete curbs; (e) all utility services will be located underground; (f) all areas not occupied by buildings, parking areas, driveways, loading areas and sidewalks shall be landscaped in accordance with a plan prepared by the applicant and approved by the Development Officer, the plan to illustrate a minimum of 20 feet of landscaped area between the road allowance and the parking area; (g) no building permit (except site preparation) shall be issued without the plans required in (b), (c) and (f) being submitted and approved as required; and (h) all work required in (b), (c), (d), and (f) must be completed within one year of building permit approval. Mrs. Jean Urquhart of 55 Golden Grove Road appeared in opposition to the above proposal for the reason that her property is in the flood zone and, because of the Flood Risk Area By-Law, she along with other property owners in the flood plain are not allowed to put any fill in their properties; and, as there would be fill placed in the proposed mall development, she has not been pleased by what she has been told by anyone who wants the mall in the subject location that she will not be flooded. Mrs. Urquhart advised that the drainage from Exhibition Park goes onto her property and that, at the time of the last major flooding three years ago, it took three days for the flooding to subside and she missed two days of work; and expressed the opinion that the proposed amendments should not be approved unless Council can guarantee the residents of the flood zone that the will not flood because of the proposed development. Mrs. Urquhart filed with the Common Clerk a petition in opposition to the building of the proposed mall at the corner of McAllister Drive and Westmorland Road which, she indicated, includes additional signatures to a partial petition submitted to the Planning Advisory Committee. Mr. Rodgers, in response to Councillor Coughlan, advised that, while Council members are members of the Exhibition Association which owns the subject property, Council members are not in conflict of interest; and Mr. Baird, replying to the Mayor, advised that the subject property is not in the Flood Risk Area. Mr. Kirby White of 13 Braemar Drive spoke in opposition to the proposal and, having noted the letter to the Planning Advisory Committee from his parents who are the home owners, commented on his three major concerns as follows: (1) drainage in that he has experienced a problem in the past with water in the basement, and the existence of a major body of water between the Simonds Arena and the Exhibition building is evidence of a drainage problem which would be increased with the proposed development; (2) the loss of a recreational facility, being the ball field, if the mall is approved for the subject location, and whether or not the proposal is an important or necessary objective from the point of view that, once the area is paved, it is unlikely that it would be unpaved; and (3) if there is no market demand for the products or what the mall is to offer the people, indicated by the City's Economic Development Department, any jobs that the project appears to create will put an equal number of people out of work. Ms. Heather Peterson, representing the owners of Parkway Mall, addressed Council in opposition to the proposed mall due to concern about the impact it will have on Parkway Mall and the surrounding community, as well as a major concern about the traffic, particularly during the annual Atlantic National Exhibition which brings additional traffic not only into the area but also directly into the parking lot of Parkway Mall which adds strain to the merchants and the customers, and asked where, if the proposed mall is approved, persons attending the Exhibition will park. Ms. Peterson made the observation that the proposed mall would result in a decrease in market share to the over 250 shops and services in the surrounding shopping centres in the area; and expressed the opinion that there is not a need for any more, nor have market surveys indicated that there is a need; and noted the current vacancies at Parkway Mall and surrounding centres. Ms Peterson suggested that, as the recessed market has been turning around as of late, it should be allowed to continue to turn prior to expanding the market by bringing another centre into the area. During discussion Ms. Peterson, in response to Council queries, disagreed with the suggestion that specialty stores and businesses at the subject location could enhance other malls and the business in the uptown area of the City by attracting people, who instead of going to other cities, to Saint John Based on her experience in working with The Hardman Group which, with Brunswick Square, did not increase the numbers from other areas, and in view of the lack of 84-129 COMMON COUNCIL MAY 25,1993 specialty stores in the proposal as it does not seem to have anything more special that the City already has which could mean a loss of tenants from existing establishments to the new development; advised that the current vacancy rate at Parkway Mall is approximately four per cent and, while this is low, the Mall would like to reduce the vacancy rate to zero; and also advised that Parkway Mall's chief concern is the market share. Mr. Terry Fullerton appeared in opposition to the above proposal as the Manager of Shoppers Drug Mart in Parkway Mall; and expressed concern about traffic in the area, particularly related to persons attempting to cross McAllister Drive and children from the Forest Hills area accessing the malls. Mr. Fullerton concluded that other issues of concern to him have already been addressed in the former presentation. Mr. James Watt of Clearview Mobile Homes Ltd. spoke in opposition to the proposed development on the basis that, while he is not against business, his main problem in this situation is the way in which those concerned are going about the proposal and a question of in the market need is there; and made the observation that, while the Planning Department's recommendation is premised basically on neighbourhood malls being something new and wonderful and the concept of merchandising or marketing of merchandise through storefronts as something new, this is not true in that neighbourhood malls were very prominent in the 1960s. Mr. Watt suggested that the system should follow normal process and that a market study, with all its ramifications, prove that the proposed centre is needed; and noted that, in 1989, when his Company went for re-zoning, it gave the City all the facts that were required to prove that the centre was viable, and that Clearview is asking for no more or no less in this instance. Mr. Watt referenced the Economic Development Department's indication in the submitted Planning report that there is little to support or prove the market demand for the proposed mall; asked, in view of the components of the proposed development, such as a fast food outlet, a bank, a home electronics store, a restaurant, a pharmacy, a travel agency, and real estate and doctors offices, what is new to the area; suggested that, while a cluster of business is fine, only so many dollars are available to spend; and re-iterated the need for a market study to determine if the project is viable. Mrs. Diana Alexander of 21 Orange Street appeared in opposition to the proposed development both as an uptown business owner and as a concerned resident of the uptown area; and, reading from a prepared brief (which she subsequently filed with the Common Clerk), noted that, prior to the McAllister Mall expansion, a marketing study concluded that Saint John had an overcapacity of retail space and, if the expansion was approved, no further construction of retail space should occur, and suggested that the recent recession has further aggravated the situation, as indicated by a loss of tenants from Brunswick Square to the McAllister Mall and the recent closure of Calp's, an uptown institution. Mrs. Alexander noted the surplus of retail space on the market, as well as the Uptown Strategic initiative sponsored by the City; and expressed concern about the draw of traffic from the entire City and the surrounding area that the proposed development would have in that, in her opinion, the City needs real growth and not a reshuffling of the existing market, new jobs and not a transfer of jobs from one area to another, and an improvement in its tax base without weakening it in other parts of the City, as well as concern that medical services offered in the uptown area could be downgraded should doctors from the uptown area establish offices adjacent to the proposed pharmacy. Mrs. Alexander requested a complete study be undertaken of the proposed mall so that its impact will be known, and that the terms of reference for the study include the impact on other areas of the City as it relates to both commercial space and medical services. Mr. Brian Beckingham, President of Uptown Saint John Inc., was present in opposition to the proposal and, having noted the presence at the meeting of Mr. Colin Whitcomb, General Manager, and Mr. Peter Klohn, solicitor, of Uptown Saint John Inc., explained that his appearance at this meeting is not to oppose the development in that Uptown Saint John Inc. is not anti-development but rather is on record ad supporting development in 1988 when a study was done regarding the expansion of McAllister Place; however, that was at a time when development could be supported in that vacancy rates were at about 5 per cent and business was fairly good, while current vacancy rates in the uptown area of the City are about 18 per cent and business is not as good and some are struggling for their very survival. Mr. Beckingham requested that Council, in making its decision, take into consideration the entire community and, with regard to whether or not the City really needs another shopping centre at this time, suggested that the City does not. 84-130 COMMON COUNCIL MAY 25,1993 Mr. Peter Klohn, in addressing Council on behalf of Uptown Saint John Inc., expressed the view that this particular application should be considered in the context of the Municipal Plan Policies 2.4.5.2 and 6.3 which are cited, in part, in the Planning Department's report and refer to the need for a survey to demonstrate whether or not additional development is warranted, and major concentrations of commercial facilities being permitted elsewhere in the City only when it can be shown that the extent of the facilities at the location intended will not likely, when established, result in a decline in the economic vitality, vigour and vitality of the Central Business District; noted the previous comments about the difficult times being experienced by business persons, merchants and professional persons in Uptown Saint John, the uncertainty with regard to St. Joseph's Hospital and the Market Square complex, and the amount of vacant space in the City; and advised that the most recent information available to Uptown Saint John Inc. indicates that there is in excess of 89,000 square feet of retail space available in the uptown area, which is in excess of 18 per cent, as well as 166,000 additional square feet of commercial space available, which compares to a 5.1 per cent vacancy at the time the McAllister Place expansion was supported by the Uptown Saint John group. Mr. Klohn suggested that, based on meeting with the applicant and attendance at the Planning Advisory Committee meeting, two themes emerged, one being that the proposed mall is so unique and its goods are so special that one might be left with the impression that it will not have a negative impact on anybody, and the other being that a study was commissioned in order to meet the requirements of the Municipal Plan, the study having been prepared by Hardy Appraisals of Halifax, N.S.; and noted that the study points out that its purpose is not to identify the feasibility of the absorption of new retail space in the market place, but rather to identify the likely impact of that space on specific segments of the market place. Mr. Klohn also suggested that the latter is exactly contrary to the Municipal Plan onus which indicates that, before a shopping centre can be built, it has to be demonstrated that it is warranted, which is not what the study does; and, having quoted further from the Hardy Report, asked why this Report would be accepted in the circumstance when other people have indicated that, when making similar applications, they were put to a different onus or test. Mr. Klohn further suggested that the reason for accepting the Hardy Report could be reflected in the Planning Department's indication that the conclusions that the proposal can be differentiated from the traditional shopping centre and the Uptown is compelling and supported by trends in other Canadian centres and, while the magnitude of this development makes it a shopping centre and subject to this review, smaller developments, such as Westwind Place and individual lot development are not subject to this type of scrutiny, and that this type of proposal is preferable to haphazard commercial development on the fringes of the McAllister/Westmorland area and reduces street access points and results in consistent development of higher quality amenities such as landscaping and underground services; and asked, while this may be good planning, is this is good policy. Mr. Klohn questioned the conclusion of the Planning Department's report which indicates that this type of development if focused on a different market segment that the uptown or regional shopping centres in that the proposed development includes tenants such as doctors' offices and specialty retail which is exactly the market segment that was identified for Uptown Saint John, and an electronic store of which there are others available in the City; and expressed disagreement with the conclusion on the basis that the proposed development is not warranted under the standards which the City has established. With regard to the second theme expressed at the Planning Advisory Committee meeting that no more comprehensive or formal study can be done because of the unique characteristics of strip malls and their tenants, Mr. Klohn made the observation that, rather that the developer being required to demonstrate that a shopping centre is warranted, Uptown Saint John Inc. finds itself in the position of having to demonstrate that it can be demonstrated that it is warranted; and that, in order to do so, Uptown Saint John Inc. consulted Malone Given Parsons Ltd., an Ontario consulting firm which indicated that consultants can prove statistically the incremental effect an additional shopping complex, such as a strip mall, next to an existing centre, has on other retail nodes in a community; in other words, it can be done. Mr. Klohn read a letter from Malone Given Parsons Ltd. (a copy of which was subsequently filed with the Common Clerk) to the effect that the pressure for the development of smaller or specialized retail and service commercial adjacent to a major shopping centre is not an unusual phenomenon and, as a major shopping location is established by the larger mall, other retailers are attracted who cannot afford the mall rents, or who do not want or need to locate within the mall, and that this secondary wave of commercial development then strengthens the overall commercial area which in turn attracts more retailers and a larger market share until the market or traffic or planning policy stops this cycle; and also that there is nothing inherently wrong with this process; however, the effects can be far reaching and should 84-131 COMMON COUNCIL MAY 25,1993 be understood - particularly the long-term implications for the downtown core and also for other suburban centres; and, with regard to whether or not an expanding concentration of mall and strip retail in one location increase the size of the market of simply transfer sales from weaker areas, this comes down ultimately to which commercial policies best guide decisions to best serve the public interest. Mr. Klohn noted that the latter remark is the reason for being before Council at this time in that the question is will the proposed development create a disproportionate node of retail activity in that, while the applicant wishes Council to believe that the information provided suggested that no consideration was required to determine if additional commercial space is warranted, Uptown Saint John Inc. believes that all information suggests the opposite. Mr. Klohn concluded that identifying a trend away from the downtown and taking steps to foster that trend are completely different things and the policy is simple - no further development without further information and consideration, and to approve the application would be to approve ad hoc policy making which is inconsistent with the understanding upon which so many people invested in the downtown rehabilitation. Mr. Charles Swanton, President of the Exhibition Association of the City and County of Saint John, appeared in support of the proposed development; noted the presence in the Council Chamber of Association members Messrs. Milton Downey, Hugh Fitzpatrick and John McNair; and explained that, on the basis that the Exhibition Association is first and foremost a business, the current Board of Directors has decided that each segment of the operation must stand alone financially and that, as in any business, not only must the Association run as cost effectively as possible but all assets and potential assets must be capitalized upon. Mr. Swanton advised that the single largest asset of the Association and the one that to date has not been capitalized upon is its real property holdings and that, as a result of the adoption of the Master Site Plan identifying existing and potential land uses, the Board sought to identify any commercial developers with an interest in Association property at the corner of Westmorland Road and McAllister Drive; and that, after months of negotiations, an agreement in principle was reached with Protective Developments (N.B.) Ltd. to lease approximately 10 acres for the purpose of constructing a neighbourhood shopping centre. Mr. Swanton stated that it is obvious that it is in the best interest of the Exhibition Association to ensure that Exhibition Square be developed and constructed to the highest possible standard; advised that, prior to the Municipal Plan amendment and re-zoning request being considered by the Planning Advisory Committee, an open house was held on May 11 at Exhibition Park at which representatives of the Association, the applicant and the Community Planning Department were present to meet with interested citizens concerning the proposed development, and that on May 12 he and Mr. Paul Brown of Protective Developments met with the Board of Directors of Uptown Saint John Inc. to outline the proposed development as to its function and type of prospective tenants, and noted that he sits on the Board of Uptown Saint John Inc. as 2nd Vice President. Mr. Swanton urged Council to approve the application of Protective Developments (N.B.) Ltd., such approval being critical for the Exhibition Association to proceed on its course of upgrading facilities and thereby offering the citizens of Saint John first-class Exhibition Grounds, and in keeping with permissions previously granted to a number of the Association's neighbours who wished, as any property owner, to utilize his or her land to the highest and best legal potential. Mr. Swanton made the observation that, with regard to the ball field being taken away, it is very difficult to take away something that has never left the Association's possession in that the Association, in May 1965, granted the request of the Simonds Lions Club, as a project, to develop the Simonds Lions field, and the Club has had the use of the property on a yearly basis until this year which bodes well for the public-spiritedness of the Exhibition Association; and advised that informal discussion has taken place with Recreation Director J. Brownell about the possible relocation of the ball field to another site on the Exhibition Grounds. Mr. Swanton suggested that the Planning Department adequately addressed the matter of drainage problems; and, with regard to a previous speaker's allusion to the need of the entire community, also suggested that one must be cognizant of the fact that each segment of a city is going to have specific concerns, and decisions must be made, taking into consideration the majority of the citizens of Saint John. Mr. Swanton concluded that it has been difficult for him where he does sit on the Board of Uptown Saint John Inc. and his family has considerable business interests in the Uptown, and obviously it has been a great concern to him as he would not do anything to harm Uptown Saint John Inc. and anything he has advocated, nor would he want to jeopardize any of his own personal holdings in Uptown Saint John. 84-132 COMMON COUNCIL MAY 25,1993 Mr. Paul Brown of Prospect Bay, Nova Scotia, appeared in support of the application; advised that Protective Developments (N.B.) Ltd., of which he is director, is a third generation of a family company started in Edmonton, Alberta in 1947, and is a legal family trust in the primary business of developing neighbourhood, or strip malls, as well as in the oil, gas and gold mining business, and was originally introduced to Saint John by virtue of some very strong opinions expressed by people in Saint John and Atlantic Canada that Saint John was a good place to do business; and explained the reason for the applicant having chosen the City of Saint John as well as the particular location, the latter being based on a theory for the successful development of neighbourhood malls being a corner location, a high traffic count, adjacent to large regional mall situations, and adequate land on which to develop the mall properly, with the subject property being the only site which matched all of the requirements determined by the applicant's experience. Mr. Brown addressed the indication that the study carried out by the applicant was insufficient on the basis that the many parameters and indices that apply and the good percentage calculations that can be applied when conducting studies on regional malls, which do have a significant impact on downtown and on other retailers, do not apply to a neighbourhood mall, nor is there any single body in Canada, of which he is aware, that could apply a regional mall or a shopping mall with a fashion component study to a neighbourhood strip mall, as they are not similar. Mr. Brown expressed the opinion that the 4 per cent vacancy at Parkway Mall indicates that it is performing extremely well in that the commercial real estate industry 5 per cent is considered zero vacancy; made the observation that the vacancy rate in the downtown area, which was represented at the Planning Advisory Committee to be 5 per cent, somehow got to 18 per cent for this meeting; and advised that one of the tenants of he proposed mall, Future Shop which is the largest electronic retailer in North America, did an exhaustive search in Saint John and could not find any other site in Saint John that could measure up to the proposed development in terms of its requirements in ceiling height, parking ratio and high visibility. Mr. Brown, in advising that it is not the intent to take business away from downtown Saint John, asked why, as three of his tenants are building additional stores from their downtown location, these businesses would duplicate their services without thinking that there is a requirement in that area for their services; and asked if a developer should not consider Saint John because it already has a number of drug stores and another drug store could promote price competition and the ability to obtain more different types of merchandise. Mr. Brown also advised that, as the applicant does not mortgage finance its projects, the applicant does a very strong analysis when looking at coming to a city such as Saint John, and that the proposed development is now over 65 per cent pre-leased by tenants who are not in Parkway Mall nor McAllister Place and who are actually asking for an opportunity to compete in an open market. During discussion Mr. Brown, in response to Council queries, commented on the tenants of the proposed development, as well as on the applicant's unsuccessful efforts to identify somebody, having talked to people and developers with whom the applicant has done business across Canada about consulting groups that have done shopping centre studies across Canada, to do the type of study requested by the City's Economic Development Department; and advised that Hardy & Associates, which the applicant hired to do the study which was primarily was to interview retail business owners in downtown Saint John and out and around McAllister Mall and Parkway Mall, were unable to identify anybody at that point in time who seemed to have a major problem and concern, and that the applicant was trying to determine whether or not what it was proposing would cause a problem for the City of Saint John in its retailing, although the applicant knew prior to the study that it would not because the applicant already knew the tenants to whom it was going to talk. Mr. Brown also advised that, in terms of construction, the proposed development represents about $2.7 million; and displayed a drawing of the proposed development in order to point out the parking area. Councillor Trites asked for an explanation, over and above what is provided in the Planning Department's report, as to why the applicant would not be required to submit an impact study, while it was indicated by Mr. Watt at this meeting that Clearview Mobile Homes was required to submit to an impact study prior to having its property re-zoned, to which Mr. Baird replied that Protective Developments (N.B.) Ltd. was requested to submit a market impact study, as have all other previous applicants for shopping centres in recent times, and the study submitted by the applicant did not deal with the traditional, what is referred to as DSTM, department-store type merchandise and did not deal with that sort of market study, incomes and population growth because the applicant was not proposing to develop a shopping centre which had a majority of DSTM-type space; and, while Clearview did submit a study prepared on the basis of 84-133 COMMON COUNCIL MAY 25,1993 growth in DSTM in that, in fact, of the 148,000 square feet which was justified in its plaza, 111,000 square feet were proposed to be DSTM, and that the study for the McAllister Place expansion, as well, dealt with the majority of the space being department-type store merchandise. Mr. Baird explained that Planning tried to indicate in its report to the Committee that the nature of the subject proposal is different and, therefore, the study is different, and is not the traditional DSTM-type of market study; but there is a study available. Mr. Robichaud, at the Mayor's request, commented on problems with drainage in the Braemar Drive area and the indication in the Planning Department's report that it would be the intent to direct a significant amount of the subject site drainage toward Majors Brook, away from the Golden Grove Road area, which would, in fact, help the drainage problems in the Golden Grove Road-Glen Falls area; and Mr. Baird, in response to the Mayor, advised that parking for Phase I of the proposed development would not be adjacent to Braemar Drive and that, as the Planning Committee's recommendation is one to re-zone a 5-acre portion of the subject property, which is Phase I, if Council adopted the recommendation it would be necessary for the applicant to come back to Council to address such issues in re-zoning the Phase 2 portion. On motion of Councillor Knibb Seconded by Councillor McAlary RESOLVED that the application of Protective Developments (N.B.) Ltd. for a Municipal Plan amendment and re-zoning of property with frontage on both McAllister Drive and Westmorland Road (part of NBGIC Number 307397), be denied. Question being taken, the motion was carried with Councillors Coughlan and Trites voting "nay". (Councillor Rogers entered the meeting.) The Mayor called for a motion, in view of the time of 9:50 o'clock p.m., that Council adjourn this meeting until 5:30 o'clock p.m. on Wednesday, May 26, 1993, whereupon Councillor Chase proposed the motion, which was seconded by Councillor Knibb. Councillor Chase noted that Council is scheduled to meet on Wednesday, May 26 to consider the proposed Smoking By-Law, whereupon the Mayor noted that that meeting is scheduled for 7:00 o'clock, and Councillor Gould advised his intent to oppose a motion to adjourn as he would be unable to be present on May 26, and asked that Council consider at this meeting the proposed re-zoning of 610 Millidge Avenue, which was tabled at the May 17 meeting. The Mayor concurred that Council would deal with that one item, being the proposed Millidge Avenue re-zoning, at this time. (Councillor M. Vincent withdrew from the meeting as he was not present for the May 17 public hearing with regard to the proposed re-zoning of 610 Millidge Avenue.) Consideration was given to a report from the Planning Advisory Committee regarding the application of Rocca Property Management Inc. for the re- zoning of 610 Millidge Avenue, which was tabled at the May 17 public hearing with no readings given; advising that the Committee considered the submitted report from the Planning Department and the submitted nine letters and petition at its May 18 meeting at which the applicant spoke in favour of the proposal and a number of Millidgeville residents appeared and eight persons addressed the Committee in opposition to the proposal; and that, after considering the report, other written submissions and presentations, the Committee decided to recommend that the application be denied; and recommending that the application be denied. Consideration was also given to (a) a letter from Mr. Shrikant Mehta in opposition to the above proposal; (b) a letter from Marjorie F. Allan expressing support of the proposal; and (c) a letter from CN Real Estate expressing the opinion that particular application with regard to CN lands in Millidgeville be no less than the B-2 category needed to produce, for the community, a very attractive and necessary development; and a letter from Rocca Property Management Inc. asking that Council approve the application and to appear before Council solely to answer any questions Council may have; and as well as to a letter from Kitty Driscoll, and a letter from CN Real Estate 84-134 COMMON COUNCIL MAY 25,1993 (copies of which were distributed to Council members at this meeting), the former submitting a copy of a petition opposed to the proposal which was submitted to the Planning Advisory Committee on May 18, and a petition of another 100 names and addresses not previously submitted; the latter submitting a letter from CN Law which gives the opinion that the City of Saint John will, in fact, breach the terms of the contract between the City of Saint John and CN dated December 18, 1987, wherein the land values established were based on the City's appraisal that the lands in question were to be used commercially (B-2), and advising that, should Council not approve the application for re-zoning, CN will have no recourse but to seek compensation for the intended exchange value of this property plus all costs incurred as a result of this breach of contract. On motion of Councillor McAlary Seconded by Councillor Gould RESOLVED that as recommended by the Planning Advisory Committee, the application of Rocca Property Management Inc. for the re-zoning of 610 Millidge Avenue be denied. Councillor Trites advised that he was not prepared to support the above motion on the basis that, in his opinion, Council need legal clarification with respect to the situation relevant to the Community Planning Act and the By-Law and whether the Municipal Plan prevails. Mr. Rodgers, noting the above mentioned letter from CN Real Estate which was distributed to Council members at this meeting, advised that, while he has had a preliminary meeting with some of the staff on this, he cannot give Council an opinion at this meeting as he wants to study the matter further, and could provide a written report to Council at the next meeting of Council on that, in particular, and other questions raised about the discretion that Council has or does not have in this matter. The Mayor advised that Councillor Gould has asked that, if Council does table the matter for a written report from the City Solicitor, Council deal with the matter on June 21 when he will be in attendance; and Mr. Rodgers made the observation that he could submit his report at the next meeting and it would be Council's decision on whether or not to deal with it until June 21. On motion of Councillor Trites Seconded by Councillor Knibb RESOLVED that the above matter be referred to the City Solicitor for a report to Council. Mr. Rodgers made the observation that Council is allowed, on a referral motion, to debate the propriety of the referral. Councillor Rogers asked that the City Solicitor, in his review, clarify the issue referenced in the submitted letter from CN Real Estate's Regional Counsel relevant to CN taking action against the City for recision of the purchase of the Millidge Avenue properties and repayment to CN of the total consideration attributed to same. In response to Councillor Coughlan's observation about the lack of a legal opinion from the City Solicitor at this meeting in that he should have been aware that questions would be asked as to whether or not the matter was properly before Council and whether Council should be proceeding on the basis that there is a Municipal Plan, Mr. Rodgers replied that there are several issues involved, one of which requires further study being the question raised by the lawyer for CN referring to a 1987 agreement, which came to his attention on this date and has not been examined. Deputy Mayor McAlary suggested that, if there is legal information required which the Planning Advisory Committee should have had, the matter should perhaps be referred again to the Committee as, in her opinion, the Committee should have the same information as Council. Councillor Gould asked for clarification on the motion to which the Mayor replied that the motion is to refer the matter to the City Solicitor for a report to Council and, while the City Solicitor has indicated that he could have the report ready for Council in two weeks, Council does not have to deal with it until June 21; and re-iterated her request, on behalf of Councillor Gould, for Council not to deal with the report until June 21. Councillor Gould advised that he would be quite happy to deal with the matter at this time; but, if Council is not going to do so and because of previous plans he will not be present for the next meeting, he will definitely be present for the session on June 21, and would not want to find at that time that Council has already dealt with the issue. Question being taken, the referral motion was carried with Councillors Coughlan, Gould and McAlary voting "nay". 84-135 COMMON COUNCIL MAY 25,1993 On motion of Councillor Knibb Seconded by Councillor Chase RESOLVED that this meeting be adjourned until 5:30 o'clock p.m., Wednesday, May 26, 1993. Question being taken, the motion was carried. Common Clerk