Report to: Development Services Committee Report Date:
SUBJECT: Potential Regulation of Drive-Through Facilities, File No. SD-03-016698
PREPARED BY: Sally Campbell
Senior Planner – Zoning & Special Projects
Catherine M. Conrad, Town Solicitor
RECOMMENDATION:
THAT the
THAT Staff report back to
Development Services Committee with recommendations regarding development
standards and urban design guidelines, including provisions such as:
•
prohibiting drive-throughs in specified zones;
•
prohibiting drive-throughs within a certain
distance of residential uses;
•
prohibiting queuing lanes within certain distances
of a street; and
•
prohibiting queuing lanes between the building and
the street.
THAT Staff report back to
Development Services Committee with a recommended set of urban design
guidelines, including provisions relating to:
• integrating
operational elements of the site, e.g. pedestrian, cyclist and motor vehicle
movements;
• enhancing
views from public streets and contribute to a high quality public space;
• creating
a safe and comfortable pedestrian and cyclist environment; and
• minimizing
impacts on adjacent or nearby land uses.
THAT Staff consult with
representatives of the development industry, before reporting back to
Development Services Committee.
THAT Staff be authorized and directed to take the actions set out in this report.
EXECUTIVE SUMMARY:
Not applicable
1. Purpose 2. Background 3. Discussion 4. Financial
5. Others (Strategic, Affected Units) 6. Attachment(s)
PURPOSE:
The purpose of this report is to comment on the confidential legal opinion prepared by Ritchie, Ketcheson, Hart & Biggart LLP, Barristers and Solicitors, relating to the ability of the Town to regulate the development of new drive-through facilities within the municipality, and to comment on the recommended next steps.
BACKGROUND:
In June 2008, The Committee received a presentation by Staff regarding concerns with respect to drive-throughs, what other Municipalities have done and a possible strategy (zoning and urban design guidelines) to mitigate concerns. The Committee discussed the difficulty in enforcing a prohibition with respect to drive-throughs. Staff suggested that legal advice be obtained prior to hiring a consultant to assist in developing urban design guidelines.
Staff has now obtained a legal opinion regarding the likelihood of success of a zoning by-law establishing a total prohibition on drive-through facilities being upheld. A copy is being forwarded under separate cover by the Town Solicitor.
The Concern Regarding Drive-through Facilities
Drive-through facilities are common place in today’s society and urban landscape. For those for whom getting in and out of the car to access certain services can be physically difficult (e.g. people with disabilities, the elderly or people with young children) drive-throughs provide a helpful and often essential alternative to accessing some services. However, for the majority of customers, drive-throughs are not necessary to purchase goods or access services. The proliferation of these facilities over the past decade has resulted in car-oriented development that brings with it adverse effects and impacts, such as additional traffic generation / congestion, noise, air and light pollution. These uses also detract from urban design principles that seek to put people, not cars, at the centre of our urban areas.
Mitigating the effects and impacts of these car-orientated uses is difficult to manage through the site plan control process alone, as a drive-through component is typically dealt with as accessory to the principle use and matters relating to setback from adjacent uses for example are difficult to control effectively.
In addition to the effects of drive-throughs mentioned above and the impact on the built form and public realm there is growing concern about the health of the population and the quality of the environment. Studies conducted by organizations such as Toronto Public Health and the Heart and Stroke Foundation point to the effects of air pollution in contributing to early deaths and significant numbers of hospital admissions; and call for people to look at adopting healthy lifestyles.
The Ontario Professional Planners Institute (OPPI) published a report last fall entitled ‘Healthy Communities, sustainable communities’, in which five areas of public health are identified as being adversely effected by our built environment. The study calls for work to begin at every level of government and every level of planning and design; commenting that while provincial policies support more intense, sustainable, and healthy communities, development remains mostly car-oriented with the market favoring conventional development styles.
Community health and environmental protection are proper land use issues identified as matters of provincial interest under Section 2 of the Planning Act and by the Provincial Policy Statement. Health and environment are included as valid planning considerations in support of the imposition of restrictions on the location, number and design of drive-through operations.
OPTIONS/ DISCUSSION:
Several
The Planning Act enables
municipalities to pass zoning by-laws to prohibit the use of land for certain
purposes as set out in the by-law. Subsection 34(1) of the Planning Act
stipulates that such prohibition may be applied within the municipality or
within any defined areas or areas or abutting on any defined highway or part of
a highway. However, there are limitations on the application of such powers and
case law demonstrates that such provisions have been interpreted by the courts
as enabling municipalities to regulate the use of land but not necessarily to
totally prohibit or ban otherwise lawful uses.
Attacks on the use of zoning by-laws prohibiting certain land uses have
been successfully launched on the basis of jurisdictional arguments, Charter
arguments and discrimination against industry sectors.
Ontario Municipal Board (OMB)
decisions that show that efforts to establish a total ban on drive-through
facilities would prompt strenuous resistance from the drive-through industry,
including challenges to the by-law by means of OMB appeals or potentially
applications to quash the by-law in the courts.
Efforts to limit the location and proliferation of this type of land use
through zoning controls have however been more widely supported by the OMB and
when used in conjunction with design criteria such controls have enabled
municipalities to sufficiently manage the development of drive-throughs.
In 2004 the City of
“While treating drive-throughs as accessory uses to permitted uses has generally been a satisfactory approach to date, it is clearly within the purview of Council to determine that the increase in the number of applications for drive-through facilities necessitates that the land use be defined…”
Where zone restrictions are applied the OMB has accepted requirements for minimum separation distances to address concerns related to the need to mitigate adverse impacts, such as noise, air quality, hours of operation and pedestrian safety resulting from the drive-through operation. The Board has also accepted the use of zoning restrictions to achieve municipal planning objectives related to the creation of more people-centric, transit orientated areas.
Prohibition Not Recommended
Staff recommends that the Town not attempt a prohibition on all drive-throughs, but instead proceed with a by-law that defines drive-throughs as a separate land use, prohibits them within specified areas and prescribes certain criteria, such as separation distances, in areas where they may be permitted. It is also recommended that these by-law regulations be accompanied with strong urban design guidelines and development standards to ensure that pedestrian safety and streetscape considerations are not compromised, and where practical a more sustainable form of development can be achieved.
Staff will report back to Development Services Committee in the next few months with recommendations regarding development standards and urban design guidelines. The development standards will likely include provisions such as:
•
prohibit
drive-throughs in specified zones e.g. zones that permit residential uses;
•
prohibit
drive-throughs within a certain distance of residential uses;
•
prohibit
queuing lanes within certain distances of a street; and
•
prohibit
queuing lanes between the building and the street.
To provide guidance at the site plan stage staff will also produce a
recommended set of urban design guidelines.
The guidelines will likely include provisions to:
•
integrate
operational elements of the site, e.g. pedestrian, cyclist and motor vehicle
movements;
•
enhance
views from public streets and contribute to a high quality public space;
•
create a
safe and comfortable pedestrian and cyclist environment; and
•
minimize
impacts on adjacent or nearby land uses.
Staff will consult with representatives of the development industry,
before reporting to Development Services Committee. This report will also include recommendations
regarding Public Meetings.
FINANCIAL TEMPLATE
There are no financial implications to the Town at this time.
ALIGNMENT WITH STRATEGIC PRIORITIES:
The ensuing work by Staff will move the Town toward the strategic priorities of achieving balanced, sustainable growth and creating policies related to reducing car reliance, achieving safe-streets and protecting our air quality.
DEPARTMENTS CONSULTED AND
AFFECTED:
The Planning and Legal Departments have jointly prepared this Report and the Town’s Accessibility Coordinator has been consulted.
RECOMMENDED
BY:
________________________ ________________________
Valerie Shuttleworth, MCIP
Director of Planning & Urban Design Commissioner of Development Services
________________________
Catherine M. Conrad, Town Solicitor
ATTACHMENTS:
None.
Q:\Development\Planning\ZONING
AND SPECIAL PROJECTS\Drive Throughs\Drive thoughs DSC PartB Nov 4 (V5).doc