Al Fletcher explains the City's position on the Pearl Company's zoning predicament.
By Ryan McGreal
Published September 24, 2010
Al Fletcher, strategic projects manager in the City's Planning and Economic Development department, responded today to an email request from RTH to explain how the City of Hamilton is supposed to attract the kind of urban reinvestment that we need to revitalize our older neighbourhoods if we continue to subject entrepreneurs to prohibitive fees and charges when they try to invest in abandoned buildings.
Referring specifically to the Pearl Company and its owners Barbara Milne and Gary Santucci, Mr. Fletcher's wrote, "The City's position has been that a rezoning application is required to recognize the use" of the Pearl Company as an art centre and theatre. The former industrial building is zoned residential, though it has never had a residential use.
Mr. Santucci argues that an art centre and theatre should qualify as a legal, non-conforming use. But according to Mr. Fletcher, "it is the position of the City that the legal non-conforming status, once non-industrial uses occupied the space, was lost."
The Official Plan that Council approved last year would permit the present use of the Pearl Company. However, the Plan still awaits approval from the Ministry of Municipal Affairs and Housing (MMAH). After that, any appeals through the Ontario Municipal Board must be heard and decided. The entire process could take years. According to Fletcher, "The timing of Official Plan approval coming into effect is unknown at this time."
In the meantime, staff have drafted zoning that would also permit the Pearl's use, but Council is not allowed to approve the draft until after the Official Plan has been approved.
Fletcher says that he and Tim McCabe, the General Manager of Planning and Economic Development, both support the use of the Pearl Company, but that while the Official Plan is still pending, their support "can only be formalized through the submission of a rezoning application."
He notes it would be illegal "bonusing" to "provide special treatment for one business over another" by making an exception for the Pearl Company.
If the Pearl Company decides to go the route of applying for a rezoning permit, a number of exorbitant fees and charges come into effect. Gary Santucci provided the following list of charges:
|Site Specific Zoning Application Fees||$11,700|
|Sign on the Property Notice to Public||$900|
|Change of Use/Zoning verification fee||$185|
|1% for any work valued above $18,500||unknown|
|Architectural drawings or engineering study to prove Building Code conformity||$10,000+|
|Site plan application||$10,000|
|Revisit encroachment agreement||unknown|
|Revised parking requirement for 25 on-site spaces||$90,000|
Fletcher points out that the City offered to defer the fee payments until final approval of the rezoning.
He notes that Santucci and Milne: "did not submit a rezoning application nor did he submit a Committee of Adjustment application regarding changing a legal non-conforming use." He notes further that they did not apply for a building permit for the work they have done on the property.
He also contrasts other businesses, like the Westdale Theatre, whose owners decided to go the route of applying for a rezoning.
Fletcher's letter concludes:
The City is committed to supporting the Arts community. We have developed a forward thinking Official Plan which not only supports the Arts but provides policy direction related to adaptive re-use of our buildings. We are proposing new zoning that will remove obstacles related to defining 'arts' uses and create a wider area within which these uses can be located.
Unfortunately, the "forward thinking Official Plan" won't arrive in time to legalize the Pearl Company's activities. They appear to be trapped in a bureaucratic Catch-22: They can't afford to pay the prohibitive fees and charges that the current rules insist they must pay to run a theatre in an industrial building with residential zoning.
Meanwhile, the City has written a new Official Plan that would eliminate the zoning issue dogging them today, but the Official Plan is held up indefinitely and staff aren't allowed to go ahead with a rezoning to resolve this issue until the Plan is finalized. Nor can staff make a special exception for the Pearl Company, as this would constitute illegal "bonusing".
The only regulatory way out is for the Pearl Company to file a rezoning application, at which point the unaffordable $200,000+ fee schedule kicks in.
RTH also made multiple attempts this week to contact Bernie Morelli, the Ward 3 Councillor whose jurisdiction includes the Pearl Company, to ask what he is doing to support Milne and Santucci. As at this writing, Mr. Morelli has not responded.
However, a number of other candidates for Ward 3 have weighed in on the issue.
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