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1998-09-14_Minutes 87 -187 COMMON COUNCIL SEPTEMBER 14, 1998 At a meeting of the Common Council, held at the City Hall in the City of Saint John, on Monday, the fourteenth day of September, AD., 1998, at 4:30 o'clock p.m. present Shirley McAlary, Mayor Deputy Mayor Chase and Councillors Chase, Court, Desmond, Fitzpatrick, Titus and White - and - Messrs. 1. Totten, City Manager; J. Nugent, City Solicitor; P. Woods, Deputy City Manager; J. C. MacKinnon, Commissioner of Environment and Development Services; P. Groody, Commissioner of Municipal Operations; W. Butler, Commissioner of Community Services; S. Galbraith, Director of Works; J. Baird, Manager of Community Planning; W. Edwards, Building Inspector; D. Logan, Purchasing Agent; K. Galbraith, Manager of Public Affairs; S. Lodhi, Manager of Real Estate and Facility Management; E. Farren, Intergovernmental Affairs; G. Tait, Fire Chief; C. Cogswell, Chief of Police; Mrs. M. Munford, Common Clerk; and Ms. C. Mosher, Assistant Common Clerk. 1. MeetinQ Called To Order - Prayer Mayor McAlary called the meeting to order, and Reverend Gordon O'Coin of Calvary Temple offered the opening prayer. 2. Approval of Minutes On motion of Councillor White Seconded by Councillor Desmond RESOLVED that minutes of the meeting of Common Council, held on Tuesday, September 8, 1998, be approved. Question being taken, the motion was carried. 3. Mavor's Remarks Mayor McAlary welcomed to the meeting Tom Creamer, Chairman of the 1998 United Way Campaign, who addressed Council on the 1998 Campaign for which the official kick-off was on Friday, September 11, and presented the Mayor with at-shirt and United Way pin. Mr. K. Galbraith, municipal representative for the 1998 Campaign, distributed United Way pins to the members of Common Council. * Added Item The Mayor called for a motion to add to the agenda of this meeting a recommendation with regard to Committee of the Whole agenda item 14 on property negotiations, which was considered in Committee of the Whole earlier this date. On motion of Councillor Desmond Seconded by Councillor White RESOLVED that the above-mentioned item be added to the agenda of this meeting for consideration as item 3A Question being taken, the motion was carried with Councillor Titus voting "nay". Mayor McAlary extended condolences to the family and friends of the late Murray Zides, who retired from the City as Commissioner of Community Planning and Development in 1985 and passed away on September 13; and noted ACAP Saint John's forthcoming beach and waterway clean-up on September 19. 87-188 COMMON COUNCIL SEPTEMBER 14, 1998 *3A. Property Conveyance To IrvinQ Oil Limited On motion of Councillor Desmond Seconded by Councillor Court RESOLVED that as recommended by the City Manager, Common Council agrees to convey to Irving Oil Limited the following properties: (a) the site of the City's East Works Depot on Grandview Avenue, identified by NBGIC Number 00348300 and containing an area of approximately 1.46 hectares; (b) the portion of the parcel identified by NBGIC Number 313874 which lies on the western side of Champlain Drive, and which contains an area of approximately 1.16 hectares, reserving however unto the City of Saint John, its successors and assigns, a right-of-way and easement for the purposes of constructing, laying, maintaining, inspecting, repairing, altering and replacing one or more municipal water lines at any location or locations lying north of the present location of the watercourse which traverses the parcel; (c) the parcel identified by NBGIC Number 00447219 containing an area of approximately 5.03 hectares, reserving unto the City of Saint John, its successors and assigns, a right-of-way and easement over and to the entire parcel for the purposes of constructing, laying, maintaining, inspecting, repairing and replacing the municipal sanitary sewer line passing through the parcel at the date of conveyance; (d) the parcel identified by NBGIC Number 00348748 containing an area of approximately 5.21 hectares, reserving unto the City of Saint John, its successors and assigns, a right-of- way and easement over and to the entire parcel for the purposes of constructing, laying, maintaining, inspecting and replacing the municipal sanitary sewer line passing through the parcel at the date of conveyance; (e) the parcel identified by NBGIC Number 00348292 containing an area of approximately .57 hectares, reserving unto the City of Saint John, its successors and assigns, a right-of-way and easement over and to the entire parcel for the purposes of constructing, laying, maintaining, inspecting, repairing and replacing a storm sewer outfall as well as a storm sewer and a sanitary sewer as they exist on through the parcel at the date of the conveyance; and (f) the parcel identified by NBGIC Number 00417840 (excepting the oval portion which is surrounding by Champlain Drive) containing an area of approximately .40 hectares, reserving unto the City of Saint John, its successors and assigns, a right-of-way and easement over and to the entire parcel for the purposes of constructing, laying, maintaining, inspecting, repairing and replacing the municipal sewer lines passing through the parcel as well as the lift stations and ancillary facilities located on the parcel at the date of the conveyance; upon the terms, conditions and undertakings set out in paragraphs 2, 3, 4 and 5 of the submitted letter from Irving Oil Limited, dated September 3, 1998, and signed by John Wallace, which was addressed to the City Manager, and upon the further term that, following the closing of these transactions, the City's Works Department may continue to use the building located on Grandview Avenue without any payment of rent up to November 15, 1998: and further that, should the conveyances of the properties in question not be finalized by September 20, 1998, Irving Oil Limited be permitted to occupy and undertake work on the northeast and northwest corners of the property identified by NBGIC Number 00348300 upon condition that the Company has first provided the City with written indemnification, satisfactory to the City, from any potential liability or expenditures incurred by the City flowing from the activities of the Company upon that property, and the Mayor and Common Clerk be authorized to execute the deeds required to effect the aforesaid conveyances. The purchase price of $775,000, as indicated in the above-mentioned letter from Irving Oil Limited, was noted during discussion and Councillor Titus advised his intent to oppose the motion on the basis that he was not happy with the procedure as it was agreed at the last meeting to commence Committee of the Whole and Council meetings at 4:30 o'clock p.m. rather than at 4:00 o'clock p.m. and he was not happy with the price. Question being taken, the motion was carried with Councillor Titus voting "nay". 4. Proposal For Consultant Services Read a report from the City Manager advising the results of a proposal call for consultant services, further to Common Council resolution of August 10, 1998 to engage the services of a consultant to locate a floodway on City properties and to proceed with the detailed design of a floodway or series of floodways, including preparation of drawings, specifications, construction, cost estimates and a benefit 87 -189 COMMON COUNCIL SEPTEMBER 14, 1998 analysis; and also advising that it was the determination of staff that, since the amount estimated and approved for this project was less than $25,000, the City was not required to advertise for public offerings and, therefore, bids were by invitation and, while the August 10, 1998 resolution authorized the expenditure of up to $25,000 for the engagement of a consultant to undertake the initial phase of this project, the actual cost of this consultant service, if awarded as recommended, would be $33,000, plus tax. On motion of Councillor Court Seconded by Deputy Mayor Chase RESOLVED that as recommended by the City Manager, the proposal of ADI Ltd., in the amount of $33,000, plus tax, be accepted for the initial phase, i.e., the design and location of floodways - Glen Falls, and further that the sum of $25,000, plus tax, previously approved by Council for expenditure from the 1998 Capital Budget, be increased to $33,000, plus tax, to cover this phase of the project. Question being taken, the motion was carried. 5. Tender For Contract 98-19 On motion of Councillor Desmond Seconded by Deputy Mayor Chase RESOLVED that as recommended by the City Manager, Contract 98-19: Boars Head Road/Millidge Avenue/Somerset Street sanitary sewer project, be awarded to the low tenderer, Fairville Construction Ltd, at the tendered price of $757,230, as calculated based upon estimated quantities, and the Mayor and Common Clerk be authorized to execute the necessary documents. Question being taken, the motion was carried. 6. License Renewal For Rockwood Park Horse Barn Consideration was given to a report from the City Manager submitting a copy of a proposed license agreement with LHMD Adventures for the operation of the Rockwood Park Horse Barn, prepared based on the original agreement using "strike-out" to indicate wording to be removed and "bold" to indicate wording to be added; advising that, as the current contract is with RM. White and the terms of that contract required the City to make a proposal to him for renewal at the time of expiration, this obligation has been fulfilled; however during negotiations, the City was requested to renew the contract under a new name, LHMD Adventures, which is registered with Corporate Affairs in Fredericton under the name of Lees Doley, not RM. White and, while contrary to article 10 of the current contract, staff is aware that Lees Doley has been directly involved in the operation for several years. The report also advises that the Rockwood Park Advisory Board has not been provided details of the proposed agreement, but has previously supported this license; sets out the terms of the proposed license agreement; and recommends its approval. On motion of Councillor White Seconded by Councillor Desmond RESOLVED that as recommended by the City Manager, Common Council approve the proposed license to LHMD Adventures, as submitted, with regard to the operation of the Rockwood Park Horse Barn, and the Mayor and Common Clerk be authorized to execute the agreement. Because of the lack of input from the Rockwood Park Advisory Board, Councillor Titus expressed the view that the Board should review the proposed license agreement. On motion of Councillor Titus Seconded by Councillor Fitzpatrick RESOLVED that the above matter be referred to the Rockwood Park Advisory Board. 87-190 COMMON COUNCIL SEPTEMBER 14, 1998 Question being taken, the referral motion was carried. 7. Natural Gas Distribution Read a letter from Mayor McAlary referring to her submission on behalf of the members of Common Council to the Standing Committee on Energy concerning natural gas distribution and to the support voiced at the last Council meeting for the "home team", Maritime NRG; expressing the view that Council should make its support known to all the public by sending a letter to the Premier and to the Chairman of the Standing Committee on Energy concerning natural gas, and submitting a draft letter and resolution in this regard for Council's consideration. On motion of Deputy Mayor Chase Seconded by Councillor Desmond RESOLVED that the Common Council of the City of Saint John send the above-submitted letter to the Premier of New Brunswick and to the Chairman and Members of the Natural Gas Standing Committee. The Mayor read the proposed letter, and Councillor Fitzpatrick expressed the view that Council did not have the expertise or experience to pick a company, and the Standing Committee, in Phase 1, was to hear expressions of interest, with Phase 2 to be a call for proposals, and also that, having a request to make a presentation on natural gas under item 17 on the Committee of the Whole agenda of this date, in order to be fair everybody involved should have an opportunity to make a presentation. Councillor Titus concurred with Councillor Fitzpatrick that Council should not be supporting one company over another company; and Councillor White made the observation that, with regard to the reference in the Mayor's letter to the "home team", there are other "home teams", Saint John Energy being one of them; and advised that, while he did not have a problem of determining that the Mayor and Council should take a stand as to what would be for the betterment of Saint John as a whole in regard to this issue, he could not vote to support one or the other at this time because he was not an expert on this issue, and had assumed that, as suggested at the last meeting, video tapes of the presentations to the Standing Committee would be obtained for Council's review Question being taken, the motion was carried with Councillors Fitzpatrick, Titus and White voting "nay". 8. Proposed Re-Zoning Of 378-380 Westmorland Road Consideration was given to a report from the City Solicitor referring to the argument put forth at the September 8, 1998 public hearing of the proposed re-zoning of 378-380 Westmorland Road by the solicitor for the opponents that the Beverage Containers Act prohibits the operation of a redemption centre which is not registered under the Act and it was therefore beyond the City's jurisdiction to enact a Zoning By- Law which purported to permit illegal activity, and to the solicitor for the applicant's argument that the Beverage Containers Act did not address operations such as the applicant's and that, in fact, the Act did not prohibit such business; and suggesting that, as in examining this issue he has concluded that there is an underlying defect in the manner in which the Zoning By-Law treats redemption centres, that defect, which relates to the condition imposed in Section 520 - General Business (B-2) zone should be corrected to obviate any concern by the City as to whether unregistered redemption centres are prohibited by the Beverage Containers Act. The report also suggests that, as there may be additional amendments which the City administration would wish to recommend, the matter should be referred to the City Manager for a recommendation relating to pertinent amendments to the By-Law, and also that Council decline giving third reading to the proposed amendment with regard to 378-380 Westmorland Road; and concludes that, if the By-Law were amended to remove any reference to the "registration" scheme provided in the Beverage Containers Act and also amended to impose clearly identified conditions which Council wished, then Council would be operating within the jurisdiction conferred upon it by the Community Planning Act and the application and enforcement of the Beverage Containers Act would be left, as it should be, with the Province. 87 -191 COMMON COUNCIL SEPTEMBER 14, 1998 9. Zoning By-Law Text Amendment Re SZ#2 And Re-ZoninQ 378-380 Westmorland Road Consideration was also given to third reading of a proposed Zoning By- Law text amendment with regard to a Special Zone #2 (SZ#2) and the re-zoning of property at 378-380 Westmorland Road. Mr. Nugent advised that the conclusion he reached, in reviewing the above matter, was that Council was dealing with an issue of redemption centres which are subject to the concurrent jurisdiction of both the Municipality and the Province, each having a legitimate authority to deal with the subject but from different perspectives, and each jurisdiction must be respected in the City's Zoning By-Law; however, the Zoning By-Law, as it is currently written, does not respect that distinction and, in effect, the Municipality has surrendered or purported to give to the Province authority that it has under the Community Planning Act, which it cannot do as the authority given to Council by the Act must be exercised by the Council. Mr. Nugent advised that the practical significance for the applicant is that, in his view, he did not require any change to the Zoning By-Law to continue his operation, and he would recommend that Council (1) decline to give third reading to the By-Law amendment it has before it; and (2) refer to the City Manager the matter of appropriate amendments to the By-Law to recognize the legitimate jurisdictions of both the Province and the City, vis-a-vis redemption centres, so that, in consultation with the Planning Department, he can return to Council with advice in that regard. The Mayor asked if, in Mr. Nugent's view the re-zoning was unnecessary, to which Mr. Nugent indicated in the affirmative; and expressed the view, from a legal perspective, that Council should remove from the Zoning By-Law any reference to registered or unregistered redemption centres and the reference should simply be only to redemption centres, but beyond that there may be issues of controlling the redemption centres, vis- a-vis parking, landscaping, size of the buildings et cetera which may be items that Council should be considering, thus the recommended referral to the City Manager. 9. On motion of Councillor Desmond Seconded by Councillor White RESOLVED that Common Council decline to give third reading to the proposed Zoning By-Law text amendment with regard to Special Zone #2 (SZ#2) and the re-zoning of property at 378-380 Westmorland Road. (Councillor Fitzpatrick withdrew from the meeting as he was not present for the August 24, 1998 public hearing in the above regard, and the August 24 public hearings with regard to the proposed Zoning By-Law amendment respecting 231 Churchill Boulevard, and the proposed Street Closing By-Law amendment with regard to Rope Walk Road.) Question being taken, the motion was carried. 8. On motion of Councillor Court Seconded by Councillor Desmond RESOLVED that the issue of redemption centres in the Zoning By-Law be referred to the City Manager for a recommendation with respect to possible amendments vis-a-vis the treatment thereof. Question being taken, the motion was carried. 10. Zoning By-Law Amendment "SZ#3" & Re-ZoninQ 231 Churchill Boulevard The Mayor asked for clarification from the City Solicitor on the above- proposed amendment in that it refers to redemption centres. Mr. Nugent suggested that, as the submitted By-Law amendment treats redemption centres in the same way that the current By-Law does in its reference to registration pursuant to the Beverage 87 -192 COMMON COUNCIL SEPTEMBER 14, 1998 Containers Act and comply with the regulations thereunder, in order to respect the appropriate jurisdictions of the City and the Province, Council should resolve to eliminate from subparagraph 740(3)(a)(i) the words "subject to subsection (b)(i)", and to delete from paragraph (b) subparagraph (i) which again speaks of a redemption centre, following which Council could move to give third reading to the proposed amendment as amended. On motion of Councillor Court Seconded by Councillor White RESOLVED that the above-proposed Zoning By-Law amendment be amended by (1) deleting from sub-paragraph 740(3)(a)(i) the words "subject to subsection (b) (i)" immediately preceding the words "a redemption centre", and (2) deleting sub-paragraph 740(3)(b)(i). Question being taken, the motion was carried. On motion of Councillor White Seconded by Councillor Court RESOLVED that the by-law entitled, "By- Law Number C.P. 100-476 A Law To Amend The Zoning By-Law Of The City Of Saint John", by: A Adding the following to the list of zones in section 30(1): "special zones SZ #3" B. Adding the following as Section 740(3): "740 SPECIAL ZONES (3) Special Zone #3 (SZ#3) (a) Uses Any land, building or structure may be used for the purposes of, and for no other purpose than, (i) the following uses: bank or financial institution; business office; church; club or lounge; community centre; dwelling unit; electric substation or telephone exchange; funeral home; hotel; institutional residence; institution of an educational, governmental or philanthropic nature; public museum, library, park or playground; personal service shop; repair service shop; a redemption centre; restaurant; retail store; school; (ii) the following uses subject to such terms and conditions as may be imposed by the Committee: gasoline bar; parking area; cablevision facility; subject to subsection (b)(ii), a motel; a private club; a fraternity or lodge without a license under the New Brunswick Liquor Control Act; a rooming house; an efficiency apartment; subject to Section (b)(iii), a repair garage or service station, a car wash and/or truck wash; a second hand store; a drive-in or take-out restaurant; a shop of less than 186 square metres for manufacturing of bakery, candy, jam, ice cream or confectionery goods; dyeing and cleaning works; a laundry, printing 87-193 COMMON COUNCIL SEPTEMBER 14, 1998 establishment or the manufacture and treatment of products incidental to a retail business conducted on the premises; subject to subsection (b)(iv), an office or parking area for a taxi business; (iii) subject to Section 830, an accessory building, structure or use, incidental to a use, building or structure permitted in this zone. (b) Conditions of Use .(i)a motel, private club, fraternity or lodge without a license under the New Brunswick Liquor Control Act, a rooming house or an efficiency apartment may not be located on a lot abutting an "R- 1A", "R-1 B" or "R-2" Zone. (ii) a repair garage or service station shall have (A) a minimum lot area of 930 square metres and a minimum lot width of 30 metres; (B) an entrance or exit for motor vehicles not closer than 30 metres from an entrance or exit to a firehall, public or private school, playground, theatre, church, hospital, institutional residence or other similar institution; (C) no portion of the building used for a dwelling unit; (D) no fuel pump island located closer than 6 metres to a street line. (iii) an office or parking area for a taxi business may not be located on a lot which is adjacent to an "R" Zone on the street which the lot fronts. (c) Zone Standards Standards for development in Special Zone #3 shall be as set out in Section 520(3), and Section 810 to 910 where this zone shall be considered a "B-2" zone, a "B" zone, or a business zone, as the case may be. "; and C. Rezoning the property located at 231 Churchill Boulevard, also being NBGIC number 55096440, from "B-2" General Business to "SZ #3" Special Zone #3 - be read a third time and enacted and the Corporate Common Seal be affixed thereto: AND FURTHER that pursuant to Section 39 of the Community Planning Act, the said re-zoning be subject to the following conditions: (a) the subject property will only ever have one facility with a liquor license at anyone time; (b) the size of the licensed facility shall be limited to a maximum capacity of 80 patrons; (c) the hours of the licensed facility shall be limited to: Monday to Wednesday opening at 10:00 am - closing at 12:00 midnight; Thursday to Saturday opening at 10:00 am - closing at 1 :00 am the following morning; Sunday opening at 1 :00 pm closing at 12:00 midnight; (d) any licensed facility shall either have a kitchen facility or provide food service from at least one other restaurant in the subject site; and (e) there shall be no live entertainment in the licensed facility or recorded entertainment detectable within 100 feet of the licensed facility. The by-law entitled, "By-Law Number C.P. 100-476 A Law To Amend The Zoning By-Law Of The City Of Saint John", was read in its entirety. Question being taken, the motion was carried. (Councillor Titus withdrew from the meeting.) 11. Street Closing By-Law Amendment Portions Of Rope Walk Road On motion of Councillor Desmond Seconded by Councillor White RESOLVED that the by-law entitled, "A By- Law To Amend A By-Law Respecting The Stopping Up And Closing Of Highways In The City Of Saint John", with regard to stopping up and closing up permanently the following portion of Rope Walk Road: 87-194 COMMON COUNCIL SEPTEMBER 14, 1998 All that certain lot, piece or parcel of land, situate lying and being in the City of Saint John, in the County of Saint John, in the Province of New Brunswick being more particularly described as follows: Beginning at a point on the northern side of Rope Walk Road being the southwestern corner of William P. Dowd & Sons Ltd. property described in a document filed in the Office of the Registrar of Deeds for the County of Saint John as #379673 in book 1587 at page 443. Said point having New Brunswick grid coordinate values of easting 332 831.781 metres and northing 665 258.827 metres. Thence on a New Brunswick grid azimuth of two hundred and thirty degrees (2300) fourteen minutes (14') forty seconds (40") along Rope Walk Road, a distance of twenty six and thirty nine hundredths metres (26.39m) to a point. Thence on an azimuth of three hundred and fifty seven degrees (3570) one minute (01 ') zero seconds (00") along the eastern boundary of Turnbull Real Estate Property described in a document filed in the Office of the Registrar of Deeds for the County of Saint John as #63965 in book 44 at page 243, a distance of sixty one and seven hundredths metres (61.07m) to a point. Thence on an azimuth of three hundred and thirty four degrees (3340) one minute (01 ') zero seconds (00"), a distance of seventy three and twelve hundredths metres (73.12m) to a point. Thence on an azimuth of three hundred and eighteen degrees (3180) thirty one minutes (31 ') twenty seconds (20") continuing along the eastern boundary of Turnbull Real Estate property, a distance of fourteen and ninety eight hundredths metres (14.98m) to a point. Thence on an azimuth of fifty nine degrees (590) twenty three minutes (23') twenty seconds (20"), a distance of twenty and eighty four hundredths metres (20.84m) to a point on Somerset Street at the northwest corner of William P. Dowd & Sons Ltd. property. Thence on an azimuth of one hundred and forty nine degrees (1490) twenty three minutes (23') twenty seconds (20") along the western side of William P. Dowd & Sons Ltd. property, a distance of sixty and twenty eight hundredths metres (60.28m) to a point. Thence on an azimuth of one hundred and sixty one degrees (1610) eight minutes (08') fifty seconds (50") continuing along the western side of William P. Dowd & Sons Ltd. property, a distance of thirty and forty eight hundredths metres (30.48m) to a point. Thence on an azimuth of one hundred and sixty six degrees (1660) fifty five minutes (55') fifty seconds (50"), a distance of twenty two and sixty eight hundredths metres (22.68m) to a point. Thence on an azimuth of one hundred and seventy six degrees (1760) twenty four minutes (24') fifty seconds (50"), a distance of twenty eight and ninety three hundredths metres (28.93m) to the place of beginning. A tract of land containing an area of 2,904 square metres and being designated as Area to be closed on a Plan of Survey, Showing Portion of Rope Walk Road, City of Saint John, County of Saint John, Province of New Brunswick, prepared by Hughes Surveys & Consultants Ltd. on July 10, 1998 - be read a third time and enacted and the Corporate Common Seal be affixed thereto. The by-law entitled, "A By-Law To Amend A By-Law Respecting The Stopping Up And Closing Of Highways In The City Of Saint John", was read in its entirety. (Councillor Titus re-entered the meeting.) Question being taken, the motion was carried. (Councillor Fitzpatrick re-entered the meeting.) 87-195 COMMON COUNCIL SEPTEMBER 14, 1998 12. Committee Of The Whole Report Read the report of the Committee of the Whole (as follows) To the COMMON COUNCIL of the City of Saint John The Committee of the Whole reports Your Committee reports that it sat on Tuesday, September 8, 1998, when there were present Mayor McAlary, Deputy Mayor Chase and Councillors Ball, Chase, Court, Desmond, Titus, Trites, Vincent and White, and your Committee submits the following recommendation, namely: 1. That as recommended by the City Manager, Common Council establish the salary of the incumbents in the following positions, to take effect March 1, 1998, at the recommended grade and step level on the classification table and salary schedule approved by Common Council on February 17, 1997: Commissioner of Development Services - Grade 9 - Step 6; Fire Chief - Grade 9 - Step 6; and Commissioner of Community Services - Grade 9 - Step 4 September 14, 1998, Saint John, N.B. Respectfully submitted, (sgd.) Shirley McAlary, Chairman 12.1. Establishment Of Salaries For Incumbents Of Three Positions On motion of Councillor Desmond Seconded by Councillor Court RESOLVED that the above report be received and filed and the recommendation therein be adopted. Question being taken, the motion was carried. Adjournment On motion of Councillor Fitzpatrick Seconded by Councillor White RESOLVED that this meeting be adjourned and a Committee of the Whole meeting of Council be held. Question being taken, the motion was carried. Common Clerk