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.