PUBLIC CONSULTATION AND
STATUTORY
NOTIFICATION POLICY FOR
ROADWAY MODIFICATIONS DOCUMENT 1
2.
MUNICIPAL ACT - PUBLIC
CONSULTATION AND STATUTORY NOTIFICAITON POLICY FOR ROADWAY MODIFICATIONS LOI
SUR LES MUNICIPALITÈS – POLITIQUE DE CONSULTATION PUBLIQUE ET D’AVIS
STATUTAIRE RELATIVEMENT AUX MODIFICATIONS DE LA CHAUSSÈE |
COMMITTEE RECOMMENDATIONS
That Council approve:
1. the process outlined in this report for public consultation and statutory notification where required, for roadway modifications, and
2. the City’s Delegation By-law in the manner described in this report.
RecommandationS
du Comité
Que le Conseil approuve :
1. la marche à suivre énoncée dans ce rapport aux fins de
consultation publique, et la communication d’un avis statutaire, au besoin,
touchant aux modifications de la chaussée, et
2. le règlement sur la délégation de la
Ville de la manière prévue dans ce rapport.
Documentation
1. General Manager, Transportation, Utilities and Public Works report dated 18 September 2003 (ACS2003-TUP-TRF-0040).
Report to/Rapport au:
Transportation and Transit Committee
Comité des transports et des services de
transport en commun
and Council/et au Conseil
Submitted by/Soumis par: R.T. Leclair, General Manager/Directeur général
Transportation, Utilities and Public
Works/Transport, services et travaux publics
Contact/Personne ressource: Michael J. Flainek, P. Eng.
Director/Directeur
Traffic and Parking Operations Branch/
Circulation et Stationnement
580-2424, extension 26882,
Michael.Flainek@ottawa.ca
|
|
Ref N°: ACS2003-TUP-TRF-0040 |
SUBJECT: Municipal Act - Public Consultation
and Statutory Notification Policy for Roadway Modifications
OBJET
: Loi sur les municipalités –
Politique de consultation publique et d’avis statutaire relativement aux
modifications de la chaussée
That the Transportation and Transit Committee recommend that
Council:
1. Adopt the process outlined in this report for public consultation and statutory notification where required, for roadway modifications, and
2. Amend the City’s Delegation By-law in the manner described in this report.
RECOMMANDATION DU
RAPPORT
Que le Comité des transports et des services de transport en commun recommande au Conseil municipal de :
1. adopter
la marche à suivre énoncée dans ce rapport aux fins de consultation publique, et la
communication d’un avis statutaire, au besoin, touchant aux modifications de la
chaussée, et
2. modifier
le règlement sur la délégation de la Ville de la manière prévue dans ce
rapport.
City workforces perform a multitude of work on City roadways of different magnitudes and for different purposes – roadway modifications include lifecycle work, road reconstruction projects, new sidewalks, bike lanes, intersection modifications, traffic calming measures, road widenings, intersection narrowings, traffic control signal installations and other physical changes to the road. Most work on the City’s roads is subject to some form of public consultation processes - from discussion with the Ward Councillor, to broad consultation on specific initiatives, to public community open houses, to working with broad stakeholder groups. Some work is also subject to provisions under the Municipal Act, which require statutory notice to the public and the provision of an opportunity for affected property owners to register their objections. This report deals with those roadway modifications that will require statutory notification according to the new Municipal Act and outlines the public consultation process for roadway modifications that do not require statutory notification.
The new Municipal Act, 2001, came into force on January 1, 2003. The new Act has brought some significant changes to the rules with respect to public notification. This report addresses the following:
The closing of a road is the responsibility of Development Services and the process to be followed has been approved by Council as part of the development approvals process. This was adopted by City Council on July 11th, 2001.
A summary of the key roadway modification components of both the former and new Municipal Acts is included in Attachment A of this report as well as the pertinent excerpts are included as Attachment B.
Prior to the new Municipal Act, statutory notification was required whenever Council was considering “stopping up, altering, widening, diverting, selling or leasing” a roadway. For the City of Ottawa this meant that the following types of road modifications were advertised:
·
A
“significant” change to the right of way.
·
Movements
of the curb more than 30cm, or a new curb.
·
Installation
of any physical changes to the road layout, such as intersection narrowings,
traffic calming measures, lane removals, etc.
Under the new Municipal Act statutory notification is required only when Council is considering closing or “permanently altering a highway, if the alteration is likely to deprive any person of the sole means of motor vehicle access to and from the person’s land over any highway”. This means that statutory notification will only be required for work that will result in the permanent loss of the sole means of access to a landowner’s property.
Where statutory notification is required, persons
whose sole means of vehicular access is lost as a result of the roadway
modification have a right to object and have these objections addressed by the
municipality.
Under the former Municipal Act there were two
main requirements that defined the process for objections to be heard.
First, there was a notification requirement under the Act. A mandatory four-week advertising period in order to notify individuals that Council was considering a by-law that will impact a roadway. Under the new Act, Council sets the notice period requirement. Council has already addressed this issue when it passed the City’s Notice By-law 2002-522 in December, 2002. Attachment C of this report includes an excerpt from the Notice By-law. The following is a brief summary of the approved notice practices for a permanent alteration where access is lost.
· Arterial, Major collector, collectors – advertise in daily newspaper two insertions 1 week apart with first insertion appearing a minimum 14 days prior to decision.
· Local road – community paper one insertion appearing a minimum of 14 days prior to decision.
· Lane – letter to abutting owners a minimum of 14 days prior to decision.
· Controlled Access Highway – advertise in daily newspaper two insertions 1 week apart with first insertion appearing a minimum 14 days prior to decision.
Second, there was a public hearing prescribed under the Act. Council was required to hear any individual who applied to be heard and felt that their land would be “prejudicially affected.” The new Act now clearly specifies who is defined as an objector. However, no process for addressing the objection has been prescribed in the new Act.
Since amalgamation, there have been two main approaches used by Transportation Utilities and Public Works (TUPW) staff to determine if a public hearing of an impending change to a roadway is required. These two approaches follow the former Regional and former City of Ottawa practices. Both of these processes adhere to the former Municipal Act but each operationalizes the Act in a slightly different manner. These differences in approach are largely due to the former wording in the Municipal Act. The Act was very specific on requirements but was not specific on who can object. The vagueness of the term “prejudiciously affected” has led many municipalities across Ontario to hold public hearings for all individuals who wish to speak to potential roadway modifications regardless of their particular objection. This vagueness has been addressed under the new legislation, as described above.
In the former Regional process, a public
hearing was automatically scheduled for roadway modifications with no
requirement that an individual objector signal their intention to object in
advance of the hearing. This process
made it difficult to determine if a public hearing was actually required. This had several important
ramifications. The Ward Councillor(s)
might or might not have been aware that there were objections, the rationale
for the objection would be unknown prior to the citizen’s presentation, and the
number of affected constituents generally would be unknown. The Councillor(s), the community and staff
were not given sufficient time to attempt a resolution as objections could come
forward at the actual public hearing.
This practice led to two particular problems for traffic projects. First, roadway designs were being revised “on
the fly” at public meetings. Second,
there were difficulties in reaching consensus that reflected community desires,
Councillor’s issues and staff design issues.
In the former City of Ottawa process, an individual was required to send a written objection to the City Clerk in order to register the objection. This gave the Ward Councillor(s) and staff knowledge of the number and nature of the objections; something that could help Councillors and staff to attempt to resolve the objection. If the objection could not be resolved, a public hearing at Standing Committee was scheduled and appropriate reports addressing outstanding issues were prepared for Committee’s consideration. Under the former City of Ottawa process, most issues were resolved in the early stages through consultation and open houses, involvement by the local Councillors, and citizen notification through newspaper ads.
These differences in approach may have been reflective of the different portions of the road network that would be under consideration by different levels of local government. The Regional practices would allow a very broad notification, which is desirable for major collectors or arterials but this practice would not have been required for the former municipalities road network of minor collectors, local roads and laneways. These differences in the network and the appropriate public notification continue to be reflected in the Council approved Notice By-Law.
Since January 2001, eighty-five (85) roadway projects have required statutory notification under the former Municipal Act, and of these, 55 have been the subject of a public hearing. As a result of the changes in the Act it is anticipated that there will be a significant reduction in the number of roadway modifications that will require notification under the Municipal Act, and an even greater reduction in the number that will rise to Committee as part of the public hearing process. Under the recommended process a public hearing would only be scheduled for unresolved registered objections that were received as part of the statutory notification. The public hearing would be part of a regularly scheduled Transportation and Transit Committee meeting and agenda items.
The recommended process for roadway
modification projects that require statutory notification is as follows:
If it cannot be definitively established
whether or not access will be lost, or that no objectors will materialize
claiming loss of access then as a matter of policy the public should be
notified. Attachment F of this report
contains a sample advertisement.
A flow chart of this process is included as Attachment D.
Most roadway modifications are the result of some larger study or conceptual work that has taken place. If the changes to roadway infrastructure and facilities are anticipated as part of lifecycle programs, traffic studies, area studies, environmental assessments or preliminary construction designs, the current practice is to engage the public and Councillor(s) throughout the project. Project implementation may take place many months after the design, or conceptual stages are completed.
The level of engagement with the community will often vary depending on the magnitude of the project. For instance, preliminary designs might be discussed for large projects such as the Castlefrank overpass, whereas detailed designs might be discussed for smaller scale projects such as local road narrowings, sidewalks, bike paths and traffic calming measures. At these stages, project management staff, in consultation with the Ward Councillor, would determine how best to engage/inform the community though activities such as open houses, advertisements in community papers, presentations or engagement of community groups, and the ward councillor(s). This public consultation process will be conducted in accordance with the City’s Policy on Public Participation in decision making. The main thrust of these activities would be to determine possible community concerns to proposed work, the ability to resolve these through design adjustments or the need for further consultation and consensus building.
As is currently the practice, staff and the Ward Councillor(s) will work towards resolution of community concerns expressed through the consultation process.
The general process for roadway modification used by the Department where no access is lost and NO statutory notification is required is as follows:
The level of upfront consultation should be reflective of the magnitude of the issue and the likelihood of statutory and non-statutory objections from these stakeholder groups. This information would be used in a briefing with the Ward Councillor to inform him/her of the staff proposal with regards to this issue. Specifically, if staff determines that access is likely to be affected then it will give notice according to the City’s Notice By-law, and if no objections are received then proceed by delegated authority with implementation of the project.
The Project Management Staff should also be able to highlight any areas of concern that have been raised by the stakeholder groups. This will identify for the Ward Councillor the basis for any potential statutory and non-statutory objections on this issue and the potential contentious points. At this point staff would be able to determine if the Ward Councillor is supportive of this project proceeding by delegated authority.
A flow diagram detailing the proposed process is included in Attachment E
On December 18, 2002 City Council approved
amendments to the Delegation of Authority By-law, which gave staff limited
approval authority for some operational items.
The following is an excerpt from Schedule ‘D” of that by-law which
applies to roadway modifications:
INTERSECTION AND ROAD MODIFICATIONS
5. The General Manager of Transportation, Utilities and Public Works is delegated the authority to proceed with intersection or road modifications which have been approved by Council in accordance with the provisions of the Municipal Act and for which no objections in response to the public notice have been received.
There are a few items to be clarified within this delegation of authority. For instance, “approved by Council”, is vague in that it could mean either approval of the budget for that specific item, approval of the design, approval of a specific report submitted to Committee and Council or approval of the overall Program budget. Furthermore, Council is not required to approve roadway modifications in accordance with the Act. The new Municipal Act only stipulates that Council is to follow the Act’s notice requirements, which are to give statutory notification when someone’s sole means of vehicular access will be deprived.
In an effort to clarify the
approval process and to facilitate operationalizing this delegation of
authority the following is proposed as an amendment to Schedule ‘D” of the
Delegation By-law.
INTERSECTION AND ROAD MODIFICATIONS
5. The General Manager of Transportation Utilities and Public Works is delegated the authority to proceed with intersection or road modifications, provided there are no outstanding written objections in response to notice given by the City pursuant to the requirements of the Municipal Act and in accordance with the City's Notice By-law requirements; and the respective Ward Councillor(s) has concurred with delegated authority.
CONSULTATION
Internal consultation on the process has taken
place.
FINANCIAL IMPLICATIONS
There are no financial implications that are identified in relation to this process.
A. Summary of the former and new Acts
B. Excerpts from current and new Municipal Acts.
C. Summary of Public Notice By-law 2002-522
D. A flow diagram of the proposed process for Statutory Notification
E. A flow diagram of the proposed process for Non-Statutory Notification and issue resolution
F. Template of Advertisement that will be placed in daily newspapers or community newspapers as well as circulated to Ward Councillor, and Community Groups.
G. Template of Advertisement for non-statutory notification that could be placed in daily newspapers or community newspapers as well as circulated to Ward Councillor, and Community Groups.
H. An example of the Short Form Report that will be developed as part of subsequent steps of the process are completed.
That the Transportation, Utilities and Public Works Department implement the process as outlined in this report and that the Corporate Services Department (Legal Services Branch) process the necessary amendments to the City’s Delegation By-law.
Item changed |
Municipal Act 1849 |
City of
Ottawa |
Municipal Act
2001 |
Proposed |
Criteria to determine if
statutory notice is required |
Council is considering stopping up, altering, widening, diverting,
selling or leasing a roadway. |
·
“Significant” change to right
of way. ·
Movements of curb more than
30cm, or a new curb. ·
Installation of roadway
modifications measures. ·
Closure of roadway. |
Council is considering closing a roadway or permanently altering a
roadway in a manner that is likely to deprive any person of the sole means of
motor vehicle access to and from that person’s land |
·
Any other modification that would result in loss
of sole means of vehicular access. |
Public Notice requirements |
Advertise for a minimum of four (4) consecutive weeks |
Advertise for a minimum of four (4) weeks in dailies |
Council determines form, manner and times for public
notification. (City’s Public Notice
By-law 2002-522) |
· Arterial, Major
collector, collectors – daily for 2 weeks · Local road –
community paper 1 week · Lane – letter
to abutting owners · Controlled
Access Highway – Daily for 2 weeks |
Definition of who may object |
Anyone whose land is “prejudicially affected” |
Former Ottawa anyone who filed written objection. Former Region- anyone who appeared at public meeting requesting to be
heard. |
Anyone deprived of the sole means of vehicular access to their land |
Anyone who is directly impacted and risks the loss of the sole means
of motor vehicle access to their land as a direct result of the roadway
modification |
Process for addressing objections |
Council must hear “any person who claims that the person’s land will
be prejudicially affected”. There
was no further definition or description of what constitutes “prejudicially
affected”. If individual did not
consent to council decision then they could request judicial review. |
Public hearings were held to hear objectors and Committee recommend
to Council the course of action to follow. |
No requirement for a public hearing to resolve objections. However, delegated authority cannot be used
if there are objections. If the
municipality and the objector(s) cannot resolve their differences after 30
days, then the municipality may apply to the Ontario Municipal Board for a
hearing and resolution |
Objectors signal objection.
Confirm loss of sole means of motor vehicle access. Attempt resolution and proceed by delegated
authority. No resolution hold public
hearing. If objector will not consent
proceed to OMB within 30 days for decision. |
Attachment B: Excerpts from former and new Municipal
Acts.
The following are excerpts from the former Municipal Act and the new Municipal Act with regards to stopping up or altering a highway.
300. Before passing a by-law for stopping up, altering, widening, diverting, selling or leasing a highway or for establishing or laying out a highway,
(a) notice of the proposed by-law shall be published at least once a week for four successive weeks…..and
(b)
the Council shall hear
any person who claims that the person’s land will be prejudicially affected by
the by-law and who applies to be heard.
34. (1) Before passing a by-law for
permanently closing a highway, a municipality shall give public notice of its
intention to pass the by-law.
(2) Before passing a by-law for permanently altering a highway, if the alteration is likely to deprive any person of the sole means of motor vehicle access to and from the person’s land over any highway, a municipality shall give public notice of its intention to pass the by-law.
(3) In subsections (2) and (7), “over any
highway”, in relation to motor vehicle access, means over an upper-tier
highway, a lower-tier highway, a single-tier highway or a provincial highway.
(4) The manner in which notice is given under
subsections (1) and (2) may be different for different classes of closings and
alterations and for different classes of highways.
(5) A by-law permanently closing a highway does
not take effect until a certified copy of the by-law is registered in the
proper land registry office.
(6) A by-law permanently closing a highway shall
not be passed without the consent of the Government of Canada if the highway,
(a) abuts on land, including land covered by
water, owned by the Crown in right of Canada; or
(b) leads to or abuts on a bridge, wharf, dock,
quay or other work owned by the Crown in right of Canada.
(7) A by-law permanently closing or altering a
highway is not valid if it would result in a person having no motor vehicle
access to and from the person’s land over any highway, unless the person agrees
to the by-law.
(8) Despite subsection (7), if a person fails to
agree to a by-law under that subsection within 30 days after public notice is
given of the municipality’s intention to pass the by-law, the municipality may
apply to the Ontario Municipal Board and the Board, after hearing the parties,
may confirm, vary or rescind the by-law and may impose limitations and conditions
respecting the closing or altering of the highway, which may include the
payment of compensation to the owner and the provision of an alternate means of
access to the land.
Notice
251.
Where a
municipality is required to give notice under a provision of this Act, the
municipality shall, except as otherwise provided, give the notice in a form and
in the manner and at the times that the council considers adequate to give
reasonable notice under the provision.
Attachment C: Summary of Public Notice By-law 2002-522
Road Closure/ Permanent alteration if
access is deprived to any person |
Applicable Section of New Municipal
Act |
Manner of Public Notice |
Contents of Notice |
Frequency of Notice |
Timing |
Arterial Major Collector Collectors |
S34 |
Notice in daily newspaper
|
Location Contact for further information Final date for comments |
2 insertions, 1 week apart |
1st insertion to appear a minimum of 14 days prior to
decision pursuant to delegated authority
|
Local Road
|
S34 |
Notice in community newspaper
|
Location Contact for further information Final date for comments |
1 insertion |
A minimum of 14 days prior to decision pursuant to delegated
authority
|
Lane
|
S34 |
Registered mail to abutting owners
|
Location Contact for further information Final date for comments |
N/A |
A minimum of 14 days prior to decision pursuant to delegated
authority
|
Controlled Access Highway
|
S36 |
Daily newspaper Registered mail to abutting owners |
Location Contact for further information Final date for comments |
2 insertions, 1 week apart |
1st insertion a minimum of 14 days prior to decision
pursuant to delegated authority Registered
mail sent 14 days prior to decision pursuant to delegated authority |
Attachment D: Flow diagram of proposed Statutory Notification process
.
Attachment E: Proposed Process for Non-Statutory Notification and
issue resolution
Attachment F: Template of advertisement for statutory notification
In accordance with Section 34 of the Municipal
Act, the City of Ottawa is providing notice to the public of its
intention to pass a by-law for modifications at the following
location(s): For more information on any of the
proposed roadway modifications contact (xxxx Division) , xxxxxx Branch , at
580-2424 ext. xxxxx. Transportation and Transit Committee
will hear in person or by his/her counsel, solicitor or agent, any person
who applies to be heard and who claims that their sole means of vehicular
access to their land will be permanently lost and wishes to object. Any person who wishes to be heard on
these matters must contact the City Clerk, in writing, at the address below
by (date). xxx, City Clerk, c/o xxx, Coordinator Transportation and Transit Committee 110 Laurier Avenue West, Ottawa,
Ontario K1P 1J1
Proposed Roadway
Modification
Other Items:
Attachment G:
Template of advertisement for non-statutory notification
The City of Ottawa is providing notice
to the public of its intention to pass a by-law for modifications at the
following location(s): For more information on any of the
proposed roadway modifications contact (xxxx Division) , xxxxxx Branch , at
580-2424 ext. xxxxx. Any person who wishes to raise
objections to these matters must contact the City Clerk, in writing, at the
address below by (date). xxx, City Clerk, c/o xxx, Co-ordinator Transportation and Transit Committee 110 Laurier Avenue West, Ottawa, Ontario
K1P 1J1
Proposed Roadway
Modification
Other Items:
Attachment H:
Example of possible outline of a Short Form Report.
Example of the Short Form Report as it is developed: