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2001-06-25_Minutes 88-543 COMMON COUNCIL JUNE 25, 2001 At a meeting of the Common Council, held at the City Hall in the City of Saint John, on Monday, the twenty-fifth day of June, AD. 2001, at 6:00 o'clock p.m. present Shirley McAlary, Mayor Deputy Mayor White and Councillors Ball, Chase, Court, Desmond, Fitzgerald, Fitzpatrick, Teed, Titus and Trites - and - Messrs. 1. Totten, City Manager; J. Nugent, City Solicitor; A Beckett, Commissioner of Finance and Commissioner of Corporate Services; W. Butler, Commissioner of Community Services; J. Baird, Manager of Community Planning; W. Edwards, Building Inspector; S. Lodhi, Manager of Real Estate and Facility Management; G. Tait, Fire Chief; A Bodechon, Deputy 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 offered the opening prayer. 2. Approval of Minutes On motion of Councillor Desmond Seconded by Deputy Mayor White RESOLVED that minutes of the meeting of Common Council, held on June 18,2001, be approved. Question being taken, the motion was carried. (Councillor Trites entered the meeting.) 5. NominatinQ Committee Membership The Mayor called for a motion to receive and file her letter on the Nominating Committee membership for the next three years. On motion of Councillor Ball Seconded by Deputy Mayor White RESOLVED that the letter from Mayor McAlary noting the tradition to allow each member of Common Council the opportunity to serve one year on the Nominating Committee, along with the Mayor and Deputy Mayor; and advising the members of the Nominating Committee for terms as follows: June 2001 - June 2002, Mayor Shirley McAlary, Deputy Mayor Carl White, Councillor Chris Titus, Councillor Stephen Chase and Councillor Walter Ball; June 2002 to June 2003, Mayor Shirley McAlary, Deputy Mayor Carl White, Councillor Ivan Court, Councillor Victor Fitzgerald and Councillor Peter Trites; and June 2003 - June 2004, Mayor Shirley McAlary, Deputy Mayor Carl White, Councillor Bernie Desmond, Councillor Eric Teed and Councillor Stephen Fitzpatrick, be received and filed. Question being taken, the motion was carried. 6. Saint John Transit Commission's Bus Purchase On motion of Councillor Desmond Seconded by Councillor Titus RESOLVED that the letter from Councillor Titus submitting, as requested at the last meeting, information from Saint John Transit regarding new design low floor buses the Commission intends to purchase, be received and filed. 88-544 COMMON COUNCIL JUNE 25, 2001 Question being taken, the motion was carried. 7. Certificate For Honourarv Appointment - City Market Read a letter from Councillor Teed commenting on the City of Saint John's right, by Charter, to conduct markets within the limits of the City and to the powers vested in the Market Clerk, one having been initiated in 1976 by the then-Mayor who appointed persons as honourary deputy market clerks and instituted a special form of a certificate of appointment which any person who exercised the right to shop in the Market, which was a legal right arising out of the Charter grant, was entitled to obtain and, upon receiving, was entitled to ring the Market Bell which proved to be a popular and interesting form of attraction and a memento of a visit to the City; submitting a Certificate of Appointment of the type used, noting that the parchment is somewhat larger than a normal sheet of paper for which framing would be expensive, and suggesting that the wording needs some revision as the present form refers to the anniversary of the establishment of the Market Building in 1976 but the Market is now 25 years older. On motion of Councillor Teed Seconded by Councillor Trites RESOLVED that Council agree (1) to a policy that there should be greater promotion of this unusual feature of the City; (2) the Certificate of Appointment be revised and reduced in size; and (3) the City Tourist Department and those responsible for the Market be urged to give greater promotion to this unusual feature of the City's heritage. Question being taken, the motion was carried. 8. ViewinQ Tower South Of Lilv Lake Consideration was given to a letter from Councillor Teed suggesting that a significant attraction for citizens and visitors alike could be a viewing tower on the highland south of Lily Lake, such as an observation tower thirty feet in height with one or more observation platforms, and that the Rockwood Park Advisory Board might have some appropriate views on this concept. On motion of Councillor Teed Seconded by Councillor Fitzgerald RESOLVED that the matter of the development of a sight-seeing tower at the top of the highland south of Lily Lake be referred to the Rockwood Park Advisory Board for its recommendation and comments. Question being taken, the motion was carried. 9. SiQns AlonQ Provincial HiQhwavs Read a letter from Councillor Teed advising that it has come to his attention that the matter of control of signs along highways as to wording size and location has been substantially changed this year such that no regulations by the Province respecting any highways within the limits of a municipality will be effective and it will be left entirely up to a municipality itself to decide how to control highway signage within its boundaries; and suggesting that the City write to the Board of Trade inviting it to offer suggestions to the City respecting what sign control, if any, should be considered by the City. The Mayor asked, so as to ensure that the City now has control of signage, for a motion to refer the above matter to the City Manager before writing to the Board of Trade; and Mr. Totten advised that there have been recent changes, particularly to the regulations, which stem in many ways from municipalities' requests to control signage near Provincial highways in the municipalities, with the City of Saint John and Harbour Station in particular having been instrumental in having the Province review this matter because of the desire to have a very significant sign adjacent to Harbour Station, and staff could come back to Council with information in this regard which could then perhaps be forwarded on to the Board of Trade. 88-545 COMMON COUNCIL JUNE 25, 2001 On motion of Councillor Teed Seconded by Councillor Ball RESOLVED that the above matter be referred to the City Manager for a report to Council. Question being taken, the referral motion was carried. 10. Proposal Call For Provision Of BankinQ Services On motion of Councillor Titus Seconded by Councillor Fitzpatrick RESOLVED that as recommended by the City Manager, the proposal of the Bank of Nova Scotia be accepted for the provision of banking services for a period of five years, with an option for an additional five years. Question being taken, the motion was carried. 11. Saint John Visitor Guide & Summer Tourism Update On motion of Councillor Desmond Seconded by Councillor Ball RESOLVED that the report from the City Manager submitting a copy of the 2001 Saint John Visitor Guide, and providing details of the initiatives and activities of the Saint John Visitor and Convention Bureau, be received and filed. (Councillor Court withdrew from the meeting.) Question being taken, the motion was carried. 12. Council Resolution Re Outdoor Concert At Mispec Park Read a report from the City Manager advising that, further to Common Council resolution of June 11, 2001 approving an outdoor concert at Mispec Park, the promoter has requested that the concert site be changed from the beach parking lot and beach to the beach parking lot, adjacent grassed areas including the basketball court, the picnic site and the area between the parking lot and picnic site, and staff supports this request; also advising of the promoter's request for relief from payment of rent should the concert be moved to another location because of inclement weather, with staff's recommendation being the addition of a clause to indicate that, if the concert is not held at the concert site because of inclement weather, rent required to be paid under clause 2 of the agreement will be returned without deduction to the licencee, and also that, with regard to clause 9 of the agreement which provides for the use of peace officers for security to implement private security services and requires that the Chief of Police approve the promoter's security plans, as this property is not located within the City boundaries and is served by the RCMP, it is appropriate to change the responsibility for approving security arrangements to the Commissioner of Community Services. On motion of Councillor Desmond Seconded by Deputy Mayor White RESOLVED that as recommended by the City Manager, Common Council (1) rescind its resolution of June 11,2001 with regard to an outdoor concert at Mispec Park on July 1, 2001, and (b) adopt the City Manager's recommendation that the City of Saint John grant a licence to SRO Entertainment Ltd. for an outdoor concert on July 1, 2001 at the beach parking lot, adjacent grassed areas including the basketball court, the picnic area and the area between the beach parking lot and picnic area, all in Mispec Park, upon the terms and conditions in the submitted licence, and the Mayor and Common Clerk be authorized to execute the licence. Question being taken, the motion was carried. 88-546 COMMON COUNCIL JUNE 25, 2001 13. Re-Zoning Of Lands To "RM-IF" Multiple Residentiallnfill Land Use Zone On motion of Deputy Mayor White Seconded by Councillor Desmond RESOLVED that the report from the City Manager advising that, after the process for the re-zoning of a very large part of the South End peninsula area containing specific properties from "RM-1" Three Storey Multiple Residential to the "RM-IF" Multiple Residentiallnfill Zone, it came to staff's attention that a few properties, as shown on the submitted maps, were inadvertently left out of the re-zoning process, such properties being surrounded by or adjacent to lands that were re-zoned to "RM-IF" in 1996 and currently residentially developed; also advising that, in addition, there are a number of properties still zoned "RM-1" but used for commercial and/or institutional purposes and, as a housekeeping step, should be placed in the appropriate commercial or institutional zone, and notification to the individual property owners and area property owners will be undertaken as part of the process; and recommending that Common Council authorize the advertising for the re- zoning of the properties zoned "RM-1" Three Storey Multiple Residential classification, as illustrated on the submitted maps, be received and the proposed re-zonings be referred to the Planning Advisory Committee for a report and recommendation, and the necessary advertising be authorized in this regard, with the public hearing to be held on Monday, August 20,2001, at 7:00 o'clock p.m. Question being taken, the motion was carried. 14. Mobile Home At 1290 Grandview Avenue Consideration was given to a report from the City Manager advising that, with regard to the June 18, 2001 request to Council of David McCormick for a mobile home to remain for an additional year at 1290 Grandview Avenue, Council granted the original placement of this mobile home in January 1988 under the authority of the Mobile Home Parks By-law and the structure has remained since that time; noting that, although such approvals are usually given on compassionate grounds and supposedly only for a temporary period of one year, often these structures remain for many decades, and staff has previously expressed concern regarding this general practice as the exercise of this authority does diminish the land use goals being sought by Council's planning program, which is primarily administered by the Zoning By-law and also does not provide for any public notification. The report suggests, given these concerns, that Council could consider one of the following options: (a) continue to approve the placement of mobile homes under the authority of the Mobile Home Parks By-law on compassionate grounds for a maximum period of one year but decline all future requests for extensions thereby requiring an applicant to seek the appropriate re-zoning of the site; (b) decline this request and refrain from approving any mobile homes under the authority of the By-law thereby requiring individuals to adhere to the planning program in regards to the placement of these structures, and individuals would have the opportunity to submit a re- zoning application should the subject property not be zoned to allow for the placement of a mobile home, and this process would allow neighbourhood involvement and input from staff and the Panning Advisory Committee. On motion of Councillor Fitzpatrick Seconded by Councillor Trites RESOLVED that as recommended by the City Manager, Common Council require that David McCormick seek an appropriate re- zoning if he wishes the mobile home to remain on the property at 1290 Grandview Avenue. Question being taken, the motion was carried. (Councillor Fitzpatrick withdrew from the meeting.) A motion was proposed by Councillor Desmond and seconded by Councillor Ball to bring forward agenda item 23(i) and (ii) for consideration at this time. 88-547 COMMON COUNCIL JUNE 25, 2001 23. (a) Mike And Cathy McCormick, (b) Margaret A. Dubee Re Mobile Home At 1290 Grandview Avenue On motion of Deputy Mayor White Seconded by Councillor Ball RESOLVED that the letters from (a) Mike and Cathy McCormick, and (b) Margaret A. Dubee expressing objection to the mobile home remaining on the property at 1290 Grandview Avenue, be received and filed and they be advised of the action taken in this regard. At Councillor Teed's suggestion the mover and seconder of the motion to receive and file the above letters agreed to add that they be advised of the action taken under agenda item 14. Question being taken, the motion was carried. 15. Municipal Plan Amendment Lakewood Avenue West Read a letter from the Common Clerk advising that, following the procedure for amendments to the Municipal Plan, the necessary advertising and public presentation have been completed with regard to the submitted application of George Freeze for property located on Lakewood Avenue West, and no written objections were received in this regard. On motion of Councillor Titus Seconded by Councillor Desmond RESOLVED that the application of George Freeze for a Municipal Plan amendment and re-zoning of property located on Lakewood Avenue West be referred to the Planning Advisory Committee for a report and recommendation, and the necessary advertising be completed in this regard, with the public hearing to be held on Tuesday, August 7,2001, at 7:00 o'clock p.m. Question being taken, the motion was carried. 16. The Saint John Jeux Canada Games Foundation, Inc. Financial Statements - Reappointment Of Governors Consideration was given to a letter from the Chairman of the Board of Governors of The Saint John Jeux Canada Games Foundation, Inc., submitting the Foundation's audited Report and Financial Statements for the year ended December 31, 2000, as received and approved by the Board at its May 23,2001 meeting, also at which a resolution was passed recommending to Common Council that Richard Oland and James MacMurray be reappointed Governors for the term ending December 31,2003, or until their successors are appointed; and asking for confirmation from Common Council of these appointments. Deputy Mayor White proposed a motion to receive and file the above correspondence, whereupon the Mayor suggested that the motion should be to accept the report and adopt the Board's recommendation to reappoint Richard Oland and James MacMurray to the Board, and a motion to this effect was proposed by Deputy Mayor White and seconded by Councillor Desmond. Councillor Titus advised that he would not accept the second part of the motion because, while it may be a technicality, in his opinion it should be referred to the newly formed Nominating Committee that Council appointed earlier in this meeting. On motion of Councillor Trites Seconded by Councillor Ball RESOLVED that Council accept the report submitted by The Saint John Jeux Canada Games Foundation, Inc., on the Foundation's activities and the audited Report and Financial Statements for the year ended December 31,2000, and refer the matter of the nomination process to the Nominating Committee. Question being taken, the motion was carried. 88-548 COMMON COUNCIL JUNE 25, 2001 (Councillor Court re-entered the meeting.) 17. Saint John Parking Commission ParkinQ Meter Bv-Iaw Amendment On motion of Councillor Desmond Seconded by Councillor Trites RESOLVED that the letter from the Saint John Parking Commission advising of the need for a Parking Meter By-law amendment, with the completion of the parking lot at Union Street (Red Rose), to delete from Schedule "B" Union Street (Drury Lane) and add Union Street (Red Rose), be received and filed: AND FURTHER that the by-law to amend the Parking Meter By-law of the City of Saint John be read a first time. Question being taken, the motion was carried. Read a first time the by-law to amend the Parking Meter By-law of the City of Saint John. On motion of Deputy Mayor White Seconded by Councillor Desmond RESOLVED that the by-law to amend the Parking Meter By-law of the City of Saint John be read a second time. Question being taken, the motion was carried. Read a second time the by-law to amend the Parking Meter By-law of the City of Saint John. 18. Environment Committee - FundinQ On motion of Councillor Trites Seconded by Deputy Mayor White RESOLVED that the letter from the City of Saint John Environment Committee advising of its activities, having been meeting every two weeks for the last year and a half, as well as its anticipated activities, and that a small amount of funding would allow the Committee to do a better job, and asking that Council give this consideration in its budget deliberations for the coming year, be referred to the City Manager for consideration in the budget process. (Councillor Fitzpatrick re-entered the meeting.) Question being taken, the motion was carried. 19. Lancaster Florists - Traffic Problems Main Street West On motion of Councillor Desmond Seconded by Councillor Fitzpatrick RESOLVED that the letter from Lancaster Florists bringing to Council's attention two traffic problems on Main Street West, one involving two City transit buses being parked on the turn of Fairville Corner heading towards Main Street for unknown periods which causes two lanes of traffic merging into one and which also blocks the motorists' view of the crosswalk, and the second involving traffic proceeding to Fairville Boulevard or the Throughway from Fairville Corner for which a traffic realignment has already been discussed but for some reason not acted upon; and requesting corrective action as soon as possible, be referred to the City Manager for a report to Council. Question being taken, the motion was carried. 88-549 COMMON COUNCIL JUNE 25, 2001 20. Fundy Bay Holdings Ltd. - Re-Zoning Of Property On Latimore Lake Road On motion of Councillor Trites Seconded by Councillor Titus RESOLVED that the application of Fundy Bay Holdings Ltd. for the re-zoning of property located on Latimore Lake Road be referred to the Planning Advisory Committee for a report and recommendation and the necessary advertising be authorized in this regard, with the public hearing to be held on Tuesday, August 7,2001, at 7:00 o'clock p.m. Question being taken, the motion was carried. 21. Lovalist Zone. N.B. Senior Citizen's Federation - ConQratulations On motion of Councillor Fitzpatrick Seconded by Councillor Desmond RESOLVED that the letter from Loyalist Zone, N.B. Senior Citizen's Federation, congratulating the Mayor and Councillors on their recent election to Council, be received and filed with appreciation. Question being taken, the motion was carried. 22. Union Of Municipalities Of New Brunswick Patrick Woods' Service On Minister's Round Table On motion of Councillor Trites Seconded by Deputy Mayor White RESOLVED that the letter from the Union of Municipalities of New Brunswick expressing appreciation for the time and effort utilized by Deputy City Manager Patrick Woods on the Technical Committee for the Minister's Round Table on Local Governance, be received and filed. Question being taken, the motion was carried. 23A. Marguerite M. LeBlanc - Various Concerns About Cranston Avenue Area On motion of Deputy Mayor White Seconded by Councillor Fitzgerald RESOLVED that the letter from Marguerite M. LeBlanc advising of her complaints about various issues on Cranston Avenue, including snow plowing, be referred to the Mayor. The Mayor advised that she had dealt with Ms. LeBlanc before and would call her in the above regard. Question being taken, the motion was carried. 23B. Conservation Council Of New Brunswick Use of Cosmetic Pesticides In Province On motion of Deputy Mayor White Seconded by Councillor Titus RESOLVED that the letter from the Conservation Council of New Brunswick advising that it is working with the NB Lung Association, the Falls Brook Centre, and the Campaign for Pesticide Reduction-New Brunswick to encourage the Provincial Government to implement a moratorium on the use of cosmetic pesticides in New Brunswick; and asking Council to endorse this by replying to the Conservation Council of New Brunswick stating that Council will support this campaign, be referred to the Environment Committee. 88-550 COMMON COUNCIL JUNE 25, 2001 Question being taken, the motion was carried. Following a recess at 6:45 o'clock p.m., the Common Council meeting reconvened at 6:55 o'clock p.m. at which time the Mayor called for a motion to add to the agenda item 24, which was considered in Committee of the Whole earlier this date, on the acquisition of property for the Marsh Creek Bridge replacement and street widening project. * Added Item On motion of Councillor Desmond Seconded by Deputy Mayor White RESOLVED that the City Manager's recommendation on the acquisition of property for the Marsh Creek Bridge replacement and street widening project be added to the agenda for consideration as item 23C. Question being taken, the motion was carried. *23C. Acquisition Of Right-Of Way For Marsh Creek BridQe Replacement & Street WideninQ Project On motion of Councillor Desmond Seconded by Councillor Ball RESOLVED that as recommended by the City Manager, the City of Saint John acquire PCB Holdings Ltd.'s interest in the right-of-way over NBGIC Number 55108930 located along Marsh Creek at 570 Rothesay Avenue, as generally shown on the submitted plan, for the purchase price of $4,795 (plus HST, if applicable), such property required to accommodate the Marsh Creek Bridge replacement and street widening project, upon the following terms and conditions: as part of the transaction, the City of Saint John will pay a maximum of $300 for any legal costs incurred by PCB Holdings Ltd. to finalize this transaction. Question being taken, the motion was carried. The Mayor extended condolences to the family of former City employee and Past President of CUPE Local 18, Raymond McDevitt, who passed away on June 23, 2001. 3(a) Zoning By-law Amendment To Re-Zone 1197 Red Head Road The Common Clerk advised that the necessary advertising was completed with regard to the proposed re-zoning of a parcel of land located at 1197 Red Head Road (NBGIC Number 55041966), having an area of approximately 0.8 acres, from "B-1" Local Business to "B-2" General Business classification, to permit an existing restaurant to be licensed as a dining room under the Liquor Control Act, as requested by Debmar Enterprises Ltd., and 3{c) a letter of objection in this regard was received from Garry Prosser, as well as 3{d) a letter from Gerald Gallagher with a petition in support of the proposed re-zoning. 3{b) Consideration was also given to a report from the Planning Advisory Committee submitting a copy of Planning staff's report, two letters and a petition in favour of the proposal and three letters against the proposal, which were considered at the Committee's June 19, 2001 meeting at which three area residents attended in opposition to the proposal, their concerns including traffic, safety of children, video lottery terminals and the existing condition of the subject site and indicated that a licensed establishment would not be appropriate or desirable in their community; also submitting an e-mail message against the proposal received after the meeting by Community Planning; and recommending that Common Council re-zone a parcel of land located at 1197 Red Head Road, having an area of approximately 0.8 acres and also identified as being NBGIC Number 55041966, from "B-1" Local Business to "B-2" General Business classification. 88-551 COMMON COUNCIL JUNE 25, 2001 Brian Arthurs of 237 Ocean Drive, Harbourview Subdivision, stated his opposition to the proposed re-zoning and a liquor-licensed establishment on the subject property. Ms. McGrath of 19 Aberdeen Avenue spoke in opposition to a liquor license in the store at 1197 Red Head Road, especially where it is a convenience store and also as it could lead up to video lottery terminals. Judy Blair of 1240 Red Head Road, appearing in opposition to the proposed re-zoning, advised that she was not against having a glass of beer or wine with a pizza, nor was she against video lottery terminals per se; however, the "B-2" zoning to permit a licensed dining room also allows for video lottery terminals, and she believed that a liquor license combined with video lottery terminals would not be beneficial to the community as it is a residential community. Ms. Blair expressed objection to the process in that, while Planning extended the area to which notification was sent to a thousand feet, not everybody understood what was going on, and also that, having had video lottery terminals in her own store, there is a safety and security risk to having them as they attract crime and there is a greater potential for crime, and expressed concern about what the store could be used for in the future should Mr. Gallagher sell it. Ms. Blair apprised Council of a recent meeting held in the community at which thirty-six people signed a petition opposed to the re-zoning and two people signed a petition in favour of it; and asked Council, when deliberating, to keep in mind what it would be opening up if it grants the re-zoning. Garry Prosser of 168 Harbourview Drive advised his opposition to the proposal on the basis that a liquor license would allow spirits to be served and a dining room license would allow two video lottery terminals and the proposal would not enhance the Red Head community which is a residential area, and also that residents in the Harbourview Subdivision had not been made adequately aware of the proposal and the petition did not reference video lottery terminals and is rather ambiguous. Mr. Prosser expressed concern about an exposed propane tank on the property and about children in the store being able to see people playing video lottery terminals or drinking liquor as there is only a four-foot high wall separating the convenience store from the dining room, as well as about adding liquor in an area where there is already speeding all-terrain and motor vehicles, and the possibility of the property becoming a stopping spot or collection point for snowmobiles. Kathryn Hilder of 1110 Red Head Road expressed objection to the proposal, referencing her e-mail letter to Planning which was submitted with the Committee's above report in which she expressed two objections, one being an increase in traffic on Red Head Road which is already a speedway, the other being the issue of the liquor licence as she sees this as just a subtle ploy to make it possible to have video lottery terminals in that establishment; and expressed the opinion that Red Head is not the place for such an establishment and anything more there would not be for the general good of the community; and asked Council to think this through carefully, considering what it could be opening the community up to for the future. (Councillor Teed withdrew from the meeting during the above comments.) Dwayne Lyttle of Anthony's Cove Road spoke in support of the proposed re-zoning on the basis that, if Council did not approve it, the community could again lose its convenience store as several previous owners could not make a go of having just a convenience store there, and noted that the building had been vandalized during the two years it was vacant. Mr. Lyttle expressed the understanding that the applicant had no plans in the immediate future to put in any video lottery terminals and wanted first to get feedback from the community in this regard; commented on a two-to-three drink maximum policy for the establishment; and expressed the view that Mr. Gallagher should get his liquor licence, noting the proximity of other establishments with video lottery terminals and/or liquor licenses. Don Melanson of 1245 Red Head Road, appearing in support of the proposed re-zoning, commented on the recent community meeting in that the convenience store services about six hundred families while about fifty people were at the meeting most of whom were couples; and expressed the view that the re-zoning would be a great thing for the community. 88-552 COMMON COUNCIL JUNE 25, 2001 Tom Rossiter of 1447 Red Head Road advised that he was in favour of Mr. Gallagher having a liquor licence and, as for increased traffic, he did not think people from, for example, the North End, would go to Red Head for pizza and a glass of beer and, as for the video lottery terminals, he lost his vote in the plebiscite on May 14, 2001, although hopefully Council could change that and get rid of video lottery terminals in the City. Gerald Gallagher, President of Debmar Enterprises Ltd., owner of the property at 1197 Red Head Road - Bayview Convenience Pizza Shack, appeared in support of his application for re-zoning, which he asked Council to approve so that he could apply to the Provincial Government for a permit to serve beer and wine as he would like to improve his business, having in December 2000 opened a 25-seat Pizza Shack Restaurant, the concept of this franchise being that the restaurant is inside the convenience store to offer customers more choice and, hopefully, they would return, and his customers have been asking for wine and beer with their pizza; and noted that, in addition to the 224 signatures on the petition he submitted previously, he had 50 more at this time who support the application. Mr. Gallagher suggested that it appeared that, for every nine customers, one was against the application for re-zoning and, while he did not want to anger his neighbours, his application had come down to a question of his character and his word and, having related information about his business experience, advised that there would be no change in the hours of operation of his Pizza Shack from 4:00 p.m. to midnight and customers would have to order food and be seated in the outlying restaurant area in order to be served beer and wine, noting the area in which the restaurant would be located in the building. Mr. Gallagher commented on the change in the make-up of the convenience store during the last twenty years, and asked Council to enable him a level playing field with other pizza restaurants and to adopt the recommendation of Planning staff and the Planning Advisory Committee, taking into consideration the petition of support from his customers, helping him to operate a business in Saint John. In the discussion following, Mr. Gallagher advised that his idea, in applying for the re-zoning, was that in six or eight months time video lottery terminals would be a possibility and he would apply for them then, and, as he considered a liquor licence and video lottery terminals as two different entities, his application did not include video lottery terminals and, as to whether or not he would call a neighbourhood meeting when he decided to wanted to put in video lottery terminals, advised that he probably would as there would be no sense in putting anything into his location that people did not want and, if the majority of the people were interested in having them, he would put them in. In response to a question of whether or not Mr. Gallagher would undertake to agree with the City that he would not put video lottery terminals in the store at the present time and, if at some future time they become an issue, he would have to come back to Council with that and presumably the entire community could then become involved in that issue, Mr. Gallagher noted that he had indirectly made an agreement that he would not proceed until he asked the opinion of all his customers and had their consensus and, as to agreeing not to put video lottery terminals in at this time, advised that, as he was getting the impression that this was an attempt to tie his hands, he would like to speak to his lawyer in this regard. Greg Gallagher spoke in support of the application, advising that he was the applicant's son and noting that video lottery terminals was a Provincial issue and that, out of 640 families that Canada Post indicates as being in the area, Council heard at this meeting that 25 to 35 families oppose the application. Mr. Gallagher expressed the view that, while the application was very simple and would allow the business to compete with Pizza Delight, Greco and Pizza Hut, it had been turned into a video lottery issue. On motion of Deputy Mayor White Seconded by Councillor Fitzgerald RESOLVED that the by-law to amend the Zoning By-law of the City of Saint John, insofar as it concerns re-zoning a parcel of land located at 1197 Red Head Road (NBGIC Number 55041966), having an area of approximately 0.8 acres, from "B-1" Local Business to "B-2" General Business classification, be read a first time. On the issue of video lottery terminals in terms of the vote that Council would make, Mr. Nugent expressed the view that, as a particular moral or philosophical 88-553 COMMON COUNCIL JUNE 25, 2001 view as to the merits of video lottery terminals or liquor should not form the basis of a decision on whether to re-zone property, it would be improper for Council to base its decision on whether or not it feels that the sale of liquor is appropriate or the accessibility of video lottery terminals to the public is a good thing; however, on the other hand it would be appropriate for Council to consider what it believes the effect, if any, of the sale of liquor or the presence of video lottery terminals at this site would have on the use and enjoyment of the property of those who live in this vicinity, the latter being an appropriate consideration, while the former is not, thus it is important, in order to assure the legitimacy of the vote, that that is the mindset that Council brings to the decision it makes to either approve or defeat the request for re-zoning. As to imposing a Section 39 condition to restrict the applicant having video lottery terminals, Mr. Baird expressed the understanding, based on discussion with the City Solicitor not on this particular application but in the past on the ability of a municipality to impose conditions that would take away the right that is clearly within the jurisdiction of the Provincial Government, that there would be some difficulty with the City imposing conditions on its own, without the voluntary agreement of the applicant to restrict himself, thus he did not believe that Council could impose this condition; and Mr. Nugent expressed the view that the scheme of the Community Planning Act would lead to the conclusion that the terms and conditions that Council might apply would be ones related to land use as opposed to conditions relating to Council's view of the merits of a particular issue; for example, if Council decided that somebody could have a convenience store but only sell organic products, he did not think this is what the Act had in mind when it gave municipalities authority to impose terms and conditions. In response to the question of whether or not it would be appropriate for the applicant to sign an agreement with the City that he would not have video lottery terminals, Mr. Nugent advised that, while he would want to give this more consideration as to principle before giving Council advice, more importantly even if this were, in principle, available as a mechanism, it would not be available in this particular case because it has gone beyond the point of having the developer indicate to the City that he would like the City to enter into an agreement with him which confirms his commitment not to do something or on the other hand to do something. During discussion Councillor Fitzpatrick spoke on the basis that people moved to the community knowing that the subject property was not zoned for general business, and Mr. Baird gave him examples of what would be allowed in a Local Business and a General Business zone. Councillor Court advised that he would like the matter to be tabled for a week or two until Mr. Gallagher had a chance to talk to his lawyer and the City Solicitor had a chance to review whether or not there could be a voluntary agreement, and Mr. Nugent re-iterated his opinion that it was too late, based on the current application, to have the possibility of an option that would see an agreement between the City and the applicant because that could only happen if the applicant had come to the City and said, voluntarily, that he wanted to have an agreement with the City to impose the condition on him and, in noting Mr. Gallagher's response to this question when it was posed to him, advised that it was too late now to revisit that possibility even if it did exist as a possibility, and also that, if he examined that and came to the view that it is a possibility legally and Mr. Gallagher wished to pursue that, it would be necessary for him to make a new application to make that a representation to Council, thus tabling the application at this point for that purpose would be ineffectual. In response to Councillor Chase's question as to whether or not there was some way to separate the issues, Mr. Nugent advised that, if Council expressed its understanding that, for example, liquor would have an adverse impact on the use and enjoyment of property in the area, that would be an entirely legitimate consideration to undertake and, similarly, if Council came to that conclusion and wanted to impose conditions that dealt with that impact upon the use and enjoyment of property as a result of, for example, liquor sales, that would be an appropriate subject for terms and conditions; so it was not necessarily the case that Council members put liquor sales and video lottery terminals out of their minds altogether but rather to put out of their minds the possibility that they could make their decision solely on the basis that they felt that liquor was bad and should not be sold or video lottery terminals were bad and should not exist, but be able to articulate the connection between those two notions and the effect that they have upon the use and enjoyment of property in the area. Question being taken, the motion was carried with Councillors Chase, Fitzgerald and Fitzpatrick voting "nay". Read a first time the by-law to amend the Zoning By-law of the City of Saint John. 88-554 COMMON COUNCIL JUNE 25, 2001 On motion of Deputy Mayor White Seconded by Councillor Desmond RESOLVED that the by-law to amend the Zoning By-law of the City of Saint John, insofar as it concerns re-zoning a parcel of land located at 1197 Red Head Road (NBGIC Number 55041966), having an area of approximately 0.8 acres, from "B-1" Local Business to "B-2" General Business classification, be read a second time. On procedure, Councillor Chase asked, if Council were interested in tabling this matter to take into consideration Mr. Nugent's last comments, whether or not it should be tabled now or prior to third reading, and the Mayor noted that there would need to be a reason for tabling. On motion of Councillor Chase Seconded by Councillor Fitzgerald RESOLVED that the above matter be laid on the table for further consideration of the impact of video lottery terminals on the neighbourhood. Question being taken, the tabling motion was carried with the Mayor, Deputy Mayor White and Councillors Desmond and Titus voting "nay". On motion of Councillor Titus Seconded by Councillor Ball RESOLVED that the correspondence in the above regard be received and filed. Question being taken, the motion was carried. 4. Street ClosinQ Bv-Iaw Amendment - MacAulav Avenue The Common Clerk advised that the necessary advertising was completed with regard to a proposed Street Closing By-law amendment to stop up and close a portion of MacAulay Avenue, and no written objections were received in this regard. On motion of Councillor Desmond Seconded by Councillor Titus 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", to stop up and close a portion of MacAulay Avenue, be read a first time. Question being taken, the motion was carried. Read a first time 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". On motion of Councillor Desmond Seconded by Deputy Mayor 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", to stop up and close a portion of MacAulay Avenue, be read a second time. Question being taken, the motion was carried. Read a second time 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". 88-555 COMMON COUNCIL JUNE 25, 2001 Adjournment The Mayor, in adjourning the meeting, noted that the next regular meeting of Council in open session was scheduled for July 9,2001 at 7:00 o'clock p.m. Common Clerk