How Secret Zoning Works

I asked Ottawa’s legal department for the legal basis that gave staff the right to say the zoning designation Small Batch Brewery allowed coffee roasting. Here’s what I got as an answer:

“Staff reviewed the proposed use in 2011 and were of the view that it most closely matched the small-batch brewery provisions of the zoning by-law and that it was therefore permitted on that basis. As such, no minor variance or zoning bylaw amendment was required. The staff opinion was contained in a public report to Planning Committee concerning the related matter of cash-in-lieu of parking wherein the following was stated:

The subject property is zoned TM (Traditional Main Street). Bridgehead, a local coffee company, has secured a long-term lease of the subject property. Bridgehead will use the building in accordance with the Small-batch brewery provisions under the TM zoning. The building will contain a coffeehouse, a support and training centre, and the company’s small batch coffee roasting operations.

The link to this report is here:”

No legal basis is mentioned. Rather it is suggested that vague references in the staff report (Small Batch Brewery provisions, small batch coffee roasting operations) constitute both public notice and committee endorsement of this change.

The committee was asked to approve a Cash in Lieu Application. In the staff report committee were not informed that the number of spaces being applied for was made significantly smaller by the brewery designation. That materially important fact appears to have been withheld.

Also withheld is any specific mention that to staff, by approving the cash in lieu committee were also approving a new city wide definition for small batch brewery.

If there is a legal basis for this it wasn’t provided today.

What was provided was a new insight into the working of city hall, where city wide zoning changes are enacted through a cash in lieu report.

It may be public – but its so secret I wonder if the committee even knew they were approving a zoning change.

 

Examining “interpretation” for BridgeHead’s Roastery

The situation with BridgeHead’s Roastery arose because Ottawa planning staff “interpreted” roasting coffee to be the same as brewing beer or wine.

That didn’t happen because of Ontario’s Planning Act. It allows anyone to ask to do anything with a piece of property through two public processes; the minor variance process and the zoning amendment process. Both are public, allowing multiple positions to be brought forward and be reviewed. Decisions are made by a group of people and once made both offer an appeal process if either side believes facts or precedent were overlooked. Interpreting isn’t necessary because if a use isn’t permitted, one can ask to have it permitted.

The permission to interpret must come from somewhere else and I think I found it – Section 17 of Ottawa’s Zoning by-law. In part that section reads:

a situation … is not covered .. the provisions of this by-law apply by analogy

Taken that way it looks like staff has a right to interpret the by-law – at least where the change is analogous to the provision listed in the by-law.

That phrase however is embedded within three linked sections which are meant to be read together as there are references between them. Let’s take those sections (Sections 16 – 18) and see how they apply to staff’s interpretation that roasting coffee is analogous to brewing beer or wine.

Section 16

The first section staff has to consider is Section 16. It says:

This by-law is remedial in nature and shall be interpreted in a benevolent manner and read and applied in a way that will ensure the effective implementation of its provisions and intent. (By-law 2013-224)

This compels staff to ensure that both the intent and provisions of the by-law are considered. The intent of the zoning use “Small Batch Brewery” is outlined in the Definitions (Section 54) of by-law. It says:

A Small Batch Brewery means a place that offers an individual member of the general public the location, the material and the equipment with which to make beer or wine for that individual’s own personal use. (brasserie artisanale)

Three criteria related to intent stand out:

  • it is the individual who is to be making the product
  • it is the brewery that offers the location, material and equipment for this purpose
  • the product the individual makes is for personal use not resale

At the BridgeHead Roastery the individual cannot buy the material for roasting coffee, nor can they use the Roastery’s equipment to roast the product. While the product is for personal use it is acquired through resale from BridgeHead to the individual. Disregarding that the product is coffee not beer or wine it appears that each of the by-law drafters’ intents is ignored by staff’s interpretation.

The provisions for a Small Batch Brewery (Section 89), in addition to those for zone in which it is located, are:

  1. it must be operated in conjunction with the retail sale of beer or wine-making products;
  2. it must not deal in any spirits other than beer or wine;
  3. the beer or wine must be made from prepared concentrates or juices; and
  4. the combined size of the brewing and bottling area and the associated retail sales operation must not exceed 200 square metres in gross floor area.

Note that each provision, except 4 specifically mentions to beer or wine. When read with the definition or intention which also says “to make beer or wine” it appears that by both provision and intent the Small Batch Brewery designation was meant to be used ONLY for the businesses that offer beer or wine making.

The final provision stipulates that these facilities are supposed to be small (200 m2). When the by-law was reviewed by planning committee in May 2007 the committee affirmed the size and discussed exactly what was to be included in that 200 m2. The by-law says it is to include “the brewing and bottling area and the associated retail sales operation”. Planning committee clarified the 200 m2 excludes “storage and staff areas”.

The BridgeHead Roastery is over 1000 m2 gross. Removing those areas that do not count towards gross floor area (Section 54 gross floor area definitions) and removing those planning committee excluded from counting towards the area of a small batch brewery one is still left with about 600 m2 for the “brewing and bottling area and the associated retail sales operation”. The BridgeHead Roastery seems to be around 400 m2 too large for a small batch brewery.

It appears that in addition to “interpreting” a company roasting coffee to sell to its customers to be the same as individual members of the public brewing beer or wine for personal use, staff appears to be using a completely novel interpretation to arrive at the permitted size.

Section 17

The next part of the linked sections is Section 17. It says:

Without limiting the generality of section 16, where a situation arises that is not covered by a specific regulation, the provisions of this by-law apply by analogy to that situation, so that the application that is made of section 16 is the one that ensures the effective implementation of this by-law.

This is the section that gives staff permission to use analogy if a circumstance is not covered by a specific regulation.

The question is, is coffee Roasting covered by some other specific regulation. Coffee roasting is a process where one takes a partially processed material and processes it further for resale. In this case green coffee beans are processed to be resold either as coffee beans or brewed coffee. Processing products for resale is permitted in all Industrial zones. In fact in 2011 there were two other coffee roasters in Ottawa, both were, and are, located in Industrial zones.

The roasting of coffee also appears to be an industrial process as BridgeHead shows in its overview of the roasting process. In addition the being under the control of industrial controllers the processes gives of a considerable odor that is mitigated, but not eliminated, by “afterburners”.

It appears that the condition, “a situation arises that is not covered by a specific regulation” which is required before staff has the right to use analogy to meet the intent of the by-law, is not met as coffee roasting is allowed by right in all industrial zones.

Section 18

This is the last section, both indicates that Sections 16 – 18 are to be read together AND reiterates that any changes are to meet the intent of the by-law. Section 18 says:

Without limiting the generality of sections 16 or 17, where a situation arises that is not covered by a specific regulation, or where two or more regulations are equally applicable, all provisions must be complied with or, where it is not possible to comply with all the provisions applicable, the most restrictive provisions must be complied with

Again it looks like staff have ignored this provision using the least restrictive definitions for parking and seeing the restaurant (coffee shop) use as accessory to the roasting use instead of as a separate use which has a number of restrictive provisions.

It seems to me that in every instance the use of Section 17 has been miss-interpreted such that the true spirit, intent and meaning of the by-law is ignored as a way to “avoid an obligation imposed by the by-law” (Section 15) .

The Regular Rules Don’t Apply

You may think of BridgeHead’s Roastery as cool coffee shop. To the City of Ottawa it’s a Small Batch Brewery (SBB). A very special one!  It’s almost like there was a tick box only on their permits:

Regular rules don't applyBack in 2011 BridgeHead was looking for a new location for a “coffee roasting experience”. It wanted to use the old Bell Canada garage at Anderson Street at Preston. Only problem is coffee roasting wasn’t allowed on Preston Street.

The normal way to request to roast coffee on the site would be to apply for a minor variance or a zoning amendment. In either case the public is notified. There is a hearing. Issues are reviewed. Whatever the decision, either side can appeal for a second opinion. That’s what you or I would have to do, but that didn’t happen.

Regular rules don't applyCity staff “interpreted” Small Batch Brewery to also mean coffee roasting. It didn’t seem to matter that “interpretation” is allowed only where the zoning doesn’t cover a need,  and Ottawa had already permitted two coffee roasters in industrial zones. It didn’t seem to matter that the purpose of a SBB is as a place for the public to make beer and wine for personal use.  It didn’t seem to matter that the definition and every condition for SBB stipulates beer or wine only.  It didn’t seem to matter that SBB’s are supposed to be small – no more than 200 m2 and BridgeHead’s Roastery is over 1000 m2. Remember the tick box:

Regular rules don't apply

SBB’s are small non-industrial facilities with little fermenters that occasionally bubble CO2. If you’ve ever smelled burnt coffee you know why coffee roasting was previously only permitted in Industrial zones before staff’s”interpretation”. Roasting coffee on the scale of BridgeHead’s Roastery is an industrial process, controlled by industrial controllers and requiring “afterburners” to mitigate, but not eliminate, the smell. We’ll never know if it would have been permitted if the change had been made public because

Regular rules don't apply

Staff “interpreting” the SSB designation to also allow coffee roasting meant that BridgeHead could use the site to roast coffee. But there was another problem. Parking! None can be provided on site.

Here too the SSB designation is advantageous. Parking requirements for a “Small Batch Brewery” are a lot lower than for a restaurant. At the time if you couldn’t provide parking an exemption was required along with paying the city cash in lieu of parking. The value of spots depended on the use. Those for a SBB were valued at $3,230 each. Spots for a restaurant were worth $7570 each. As a restaurant (coffee shop) the BridgeHead Roastery could need twice as many, or more, of the expensive spaces.

It’s pretty uncommon to get cash in lieu for 11 spots but that was approved. It’s hard to say if relief for 20 or more spaces would have been granted and harder to knows if the difference in fees was affordable to BridgeHead. The fee for 20 restaurant spaces would have been $151,400. The fee requested for the 11 SSB spaces was just $35,530. That’s almost $116,000 less. BridgeHead is currently applying for a liquor license for 375 m2 of space (almost two SBB’s). If that were a normal coffee shop, 35 parking spaces should be provided. Apparently BridgeHead won’t have to provide any more parking for this new use because

Regular rules don't apply

I’ve asked Jim Watson, the Planning Committee Chair and my Councillor about the change. None knew about the change apparently. I’ve asked city staff under what authority they acted. No answer. I’ve been told the senior planning lawyer would get back to me. That hasn’t happened either.

I’ve asked if any BridgeHead’s shareholders were on the previous counsel? Not a word. I’ve asked it any members of planning staff are BridgHead shareholders. Not a word.

It seems to me like a lot of advantage has been given to BridgeHead Roastery without the usual rules applying.

Government stimulus for Tech

In advance of the budget on Tuesday my local MPP is having a community event to identify economic priorities. Here’s what I sent him:

  1. Ottawa is losing its tech industry. Changes in several areas of government regulation and approach could have a huge stimulative effect by leveraging personal and institutional investment.
    1. Investment in start-ups must be encouraged. This can be done by decreasing the capital gains that are taxed if these companies are successful and increasing the capital losses that can be claimed if they fail.
    2. Change the SRED and IRAP rules to allow individuals to claim sweat equity contributions at a rate determined by their last paid position – and paying grants only on profitably (this allows the accrual of offsetting grants that can either “sold” for capital on the risk market or saved to offset tax payments or directed to commercial promotion.
    3. Remove tax regulations that put Canadian tech businesses at an international disadvantage. Examples include the way CRA values options at the time of grant instead of the time of redemption. (Options are used to confer value to key employees while preserving the company’s immediate cash position for growth, promotion or research.) They are unusable to Canadian tech companies because the downside risk in the current rules means accepting options if the companies stock could falls can (and has) bankrupt employees. This puts Canadian companies at an international disadvantage.
    4. Develop an Eastern corridor (Quebec City to Windsor) Tech Economic development agency to bridge and connect local centers and encourage the flow of ideas and personnel. To compete globally we must increase the population base for tech incubation, research and professional development to match those of our key competitors.  This means connecting regions – and moving beyond the Toronto – Waterloo corridor that is currently in fashion.
  2. Examine and remove regulatory impediments to clean/green & tech industries, and develop legal frameworks to support alternative methods of service delivery.
    1. Regulatory obstacles or lack of legal frameworks hamper the conversion to many alternate technologies (hardware/software and process) and often serve only to protect entrenched companies and approaches. This issue applies to everything from green technologies to inner city granny flats that allow greater home care. Some years ago I spoke to an Ottawa manufacturer of solar water heaters. His biggest obstacle to expanding into the home market was that CMHC had not developed (and was not planning to develop) building code recommendations for roof mounted hot water systems of his type. Each sale required an engineers report to be filed with the building permit. Needless to say he is no longer in business – with the loss of an innovative Canadian technology and local employment. Similarly rules surrounding granny flats prevent them being usable in most cities where the need actually exists. More over there is no legal framework to allow temporary flats that is the desired solution to this problem for both care givers and entrepreneurs.
    2. Similarly CRTC inaction on SMS fees means that Canada is a development backwater for this rapidly growing alternative or augmentation to smart phone applications – limiting innovation, local company growth and methods of service delivery.
  3. Encourage government to trial / buy early versions of company’s technologies, or provide grants/tax relief to companies that trial and invest in new technologies.  Early customers are critical to perfecting products as customer knowledge is critical in understanding and generalizing the problem set. At the same time investment in technology has proven to be a key component to the success and international competitiveness of businesses that invest in them. Increasing the rate of adoption and moving the entry point to earlier in the curve would have a huge effect on Canadian businesses allowing them a broader competitive footing internationally while encouraging tech company growth.

What other structural changes could the government take that would help Canadian and Ottawa tech firms grow and compete?

A New Leader for OCRI

OCRI is looking for a new leader.

This may be the most important decision its members and funders make because it will set the direction for the organization during the coming critical years where Ottawa’s tech sector will either finally revive or fatally flounder.

It’s a time for vision, inclusion, activism and leadership.

So what should they look for?

First someone who thinks regionally. Ottawa is a mid-sized city for Canada but tiny globally. The reality is that we compete with areas that measure their economic hinterlands in tens of millions of people – and we need to approach that scale to compete. It is this economic and geographic connection between producers and consumers that ensures needs definition and fulfillment easily link, creates ready markets for initial test, insures a large pools of investors and management talent, and guarantees a rich education and employee pools for specialized skills as businesses grow. If Ottawa’s tech sector is going to thrive OCRI must make Ottawa a central part of an economic partnership that extends from Windsor to Quebec City.

Next the leader must be inclusive and strategic. A smaller tech community means smaller budgets – but the amount of work actually increases if “the current weakening trend” is to be reversed. OCRI must become an instigator when necessary and a coordinator where possible. It makes little difference to the strength of the community if The Code Factory mentors start-ups or whether OCRI does directly – except if the Code Factory handles it OCRI can focus on advocating public policy changes that few can address otherwise. Same goes for the Innovation Hub. Its fine in times of plenty to replicate MaRS in Ottawa but the budgets won’t be there for a number of years so let’s focus on delivering MaRS programs at University facilities’ using the telecom expertise Ottawa is famous for. Linking tech entrepreneurs within a university setting also provides (with some program support) a framework to bridge the commercialization gap that keeps so much Canadian funded research in the lab instead of the market.

The next bit of inclusion is that OCRI must reach out and address the needs of the thousands of small tech companies that are not currently it members or risk seeing its public funding attacked as this group develops an independent voice and representation.

The new leader must also be an activist. The problem of start-up investment or talent pools is not just a function of our size. We need substantial changes in out tax structures if we are gong to compete with the rest of the world. I’m not talking about lower corporate rates but of correcting the putative options regulations that mean start-up can’t attract world class talent with promises of future gain, and the write-off rules that reward people for keeping money out of high risk/reward investments like tech. We also need to look at federal and provincial programs that are sometimes so rule bound as to be meaningless. Lets make sure that if other levels of government understand the problem that their programs address it effectively. It is in developing the expertise here, and using our proximity to the federal government – that OCRi cements its leadership role to eastern Canada’s tech community.

This is a defining moment for OCRI. I hope they will consider these issues as they evaluate candidates.

What I’ve learned about Programming

A month and a half a go I wrote I was learning to code. That was probably a bit premature. While I have a much deeper understanding of what’s involved – my project has stalled.

After weeks, and weeks of reading – and trying lines of code that don’t work – and then searching and reading some more I’ve come some conclusions.

1. You can’t teach yourself! It ‘s simply too complex (inter-acting dependencies) and the syntax’s so strict that without a daily dialog with an experienced coder you never get enough lines written to really grasp what’s going on.

2. There’s a huge gulf between the myriad of simple tutorials and anything you’d actually want to do. As a non-programmer one need examples that are similar to what you’re trying to accomplish to learn. From the questions I’ve seen in forums experienced programmers sometimes do as well.

3. When choosing a platform – good documentation is critical. You’re going to need it some time and if it isn’t there – or the suggestion is read the source – move along unless you’re up for divining solutions.

4. Search doesn’t work for well for code. You can find lots of stuff but too often its a feast of links that are only marginally useful ( a lot of link reading to find what you need). And everyone uses slightly different nomenclature so each search has to be done repeatedly. It would be great to be able to eliminate specific sites from every search result, or forum questions without replies.

5. Forums are great but an active local users group is likely more important.

On one level I don’t feel too bad – because I’ve seen enough comments by experienced programmers who’ve beaten their heads against these problems – at another level I realize that something has to change if I’m going to learn.

I’m looking for a tutor familiar with Cakephp 1.2 and patient enough to guide a motivated neophyte to programming self-sufficiency. Interested? contact me.

Learning to Code

For years I’ve been on the business side of technology.

Software was a black box of objects passing parameters and data to other objects. Conceptually it’s pretty easy to describe those relationships and feel comfortable throwing around names of API commands, discussing the merits of frameworks, and explaining how objects inter-related and the testing paradigms that proved them reliable. If you didn’t probe you might think I had detailed knowledge of the inner workings of these things.

I’m learning to code and discovering it’s not as easy as the concepts led me to believe.

Even for my simple purposes, a data driven niche media web application, I’ve had to learn 4 languages. And by learn I mean that if they were spoken languages I’d usually get coffee when I thought I asked for it – not that I could carry on a conversation. Add to that 1 framework that I know will make things easier and more scalable in the long run – but assumes you’re conversational already so speaks too fast and uses words you don’t understand. And before any of that stuff could work I had to install and configure 3 services for the development environment.

Each component interacts and has dependencies so you can’t produce anything without a rudimentary understanding these relationships. And I just know that in the future I find that elegance and performance comes from deep understanding.

Still it’s possible for me to attempt this because of the great resources and community that develop around each language, framework and component. I’ve used text and video tutorials, scoured forums and programmer blogs for answers to questions, and downloaded tools if they look to be useful. Slowly I’m beginning to make progress.

Of course I could have saved myself the effort and had someone who’s already fluent speak for me – but what fun would that be. It’s not just that I get to decide what this application does (assuming it progresses to the point it does something) its that software fluency gives me an increasing appreciation and understanding of how the services I see everyday operate, and how complex they really are.

Oh! And to all those programmers that I antagonized by asking “how hard can it be” when some business pressure meant a 90 degree turn in code – I apologize. I now know software happens at the level of details not concepts.