Posted by: HamptonIona | April 7, 2013

Convent Construction Noise Exemption – Letter to Councillor Hobbs

On April 7, 2013, Hampton Iona Community Group sent the following email to Councillor Hobbs regarding the recently walk-in motion with respect to 114 Richmond Road and the noise bylaw exemption.

Dear Katherine,

I was out of town last week so I have not yet had a chance to write you on behalf of the Hampton Iona Community Group with respect to the motion that you recently sponsored with respect to noise at the convent site.   From the City’s website I see the actual wording of the motion is as follows:

MOTION
Moved by Councillor K. Hobbs
Seconded by Councillor J. Harder

That the Rules of Procedure be waived, due to time constraints associated with the impending construction season and the particular project at 114

Richmond Road and the fact that there was only one Council meeting in March, to consider the following motion:

WHEREAS Section 23 (Exemption – Construction Equipment) of the Noise Bylaw provides only for short-term and time-limited exemptions on construction noise; and

WHEREAS a significant high-rise construction project is scheduled to be undertaken on Richmond Road in Kitchissippi Ward 15, for which the construction activities are expected to be beyond the scope of the noise related regulations in Section 7 (Construction) of the Noise By-law; and

WHEREAS customary practices for the construction of such high-rise reinforced concrete structures unavoidably give rise to three categories of noise:

1. Excavations requiring dewatering – gas-operated motors are used to activate pump systems, and must be operated beyond the 2200-hour time limit prescribed in the Noise By-law to avoid substantial damage and dangerous water levels; and, this activity continues at the site until the lower portions of the new structure are actually connected to Citystorm sewers;

2. Pouring of fresh concrete – this needs to be kept above freezing in order for the chemical curing process to complete in accordance with the structural engineer’s specifications, and normal industry practice; this heating is accomplished by means of gas-fired portable heaters which must operate continuously (24 hours a day, 7 days a week) during the “heating season”, normally October 1st to May 1st;

3. Pouring of fresh concrete slabs (floors) – these must have their topsurfaces trowelled prior to set-up of the concrete, which is done with gas-fired motorized trowel machines operating after each slab is poured and until the optimum finish is achieved, normally into the evening of the day of the pour, often beyond the upper time limit prescribed by the Noise By-law;

THEREFORE BE IT RESOLVED that the construction equipment being used in relation to the project at 114 Richmond Road be exempt from Section 7 of the Noise By-law such that it may operate between the hours of 2200 and 0700, seven days per week, from the date of Council approval until May 1, 2013, and between the hours of 2200 and 0200, Monday to Friday from May 2, 2013 until August 23, 2013 inclusive.

While we understand that the intent of the motion was to allow Ashcroft the right to continue operating their water pumps and portable heaters in order to prevent water damage and to allow the concrete to properly cure, the Hampton Iona Community Group (HICG) is greatly concerned that the wording of this motion may allow for much more than its intent.  While we are not that unreasonable that we would have objected to a level of activity that had been going on for weeks without us noticing it, we are concerned with both the process and the potential implications of this walk-on motion.   We are also concerned that when wording in contracts (or motions) is not precise, the parties involved may choose to exercise a great deal of flexibility.  We have seen how flexible our Secondary Plans can be!

1) While we understand the purpose of the “whereas” in the motion is to set context for the motion and to describe the limitation, the actual motion which reads “be it resolved that the construction equipment being used in relation to the project” appears to be far too vague.   There is no specific reference to the type of equipment covered by the motion or the type of construction activity nor does the actual resolution reference the whereases listed above.  Should Ashcroft wish to widely interpret the motion, there appears nothing to stop them from doing so.  Furthermore, the Definition Section of Noise Bylaw 2004-253, defines construction equipment as meaning “any equipment or device designed and intended for use in construction, or material handling, including but not limited to, hand tools, power tools, air compressors, pile drivers, pneumatic or hydraulic tools, bulldozers, tractors, excavators, trenchers, cranes, derricks, loaders, scrapers, pavers, generators, off highway haulers or trucks, ditchers, compactors and rollers, pumps, concrete mixers, graders, or other material handling equipment.”   This definition from the actual noise by-law goes well beyond the type of equipment your motion envisioned.

From our history with Ashcroft, we are concerned that they may choose to pursue maximum flexibility if that is in their interest, particularly if they can cite the wording in the actual Noise By-law as justification.   As well, the third whereas in the preamble of the motion refers to pouring of concrete slabs.  Given how general this “whereas” is worded, it could just as easily allow for Ashcroft to pour in the night and trowel in the day rather than the other way around.  While it may be the norm to pour during the day and trowel at night, this “whereas clause stipulates no such limitations.

Based on the above, we have the following specific questions:

  • How is the City going to enforce the waiver to ensure that it only applies to heaters and pumps and night time trowelling?
  • If Ashcroft decides that the motion allows for maximum flexibility and decides to use such flexibility, what actions can and will the City take to immediately stop any unanticipated noise?
  • How quickly will the City be able to act in stopping any such extra activity?
  • If the waiver doesn`t allow them to make any noise, only to do the work, then why did they need a waiver in the first place under the noise-bylaw?
  • What was the role of the City solicitors in drafting this motion and did they provide a legal opinion to Council on its enforceability and interpretation?   Is this interpretation available to the public?

2) We further understand that under the noise bylaw 2004-253, an applicant must file with the City an application for an exemption from the bylaw 60 days prior to needing the exemption.

  • While we presume this was done for the initial exemptions, what is the notification period required for a waiver by Council of this bylaw?
  • If no notification period is required for a more lengthy Council approved waiver, why is one required for only an 11 day  waiver by the director of By-law Services but none for more lengthy waiver by Council?
  • If the applicant did in fact give significant advance notice requesting a more permanent waiver by  Council why was the community not notified and consulted?
  • Is a copy of Ashcroft`s application(s) for such waivers available to the public and if so, we would like to see it.

We also note according to the Bylaw, Ashcroft would have had to have paid a $50 fee for the 11 day exemption plus staff time at $60/hour.  How much was that fee in total and what fee are they paying for a more permanent waiver.  If they are not paying a fee, why not?  The purpose of the waiver is to allow them to speed up construction and presumably improve their profit position or get their condos more quickly to market.

3) Presumably, the need to operate pumps and heaters around the clock is not uncommon at construction sites, particularly in this climate.  As such, are waivers for these type of activities a common occurrence?  If so, is it common for Council to provide waivers for longer than 11 days such as you have done ?  If such waivers from Council are not common, then what makes Ashcroft`s project at 114 Richmond Road so special that it requires this waiver while other projects don’t?  Why does the project need to operate heaters from May to August?  Ashcroft has been pouring concrete at their project on the north side of Richmond Road all winter.  Did they need a noise waiver for that project?  What is to prevent every developer in the City from requesting similar exemptions from the bylaw?

As our Association has previously indicated, we are very concerned with the very limited information that Ashcroft is providing the surrounding neighbours on the construction status of this project.  We are located next to a 4 to 5 year construction site.  As a good neighbour, Ashcroft should be providing information to the neighbours on a regular basis.   To date, however, information provided by Ashcroft has been minimal and when provided, it has been provided to the least number of neighbours possible.  Knocking on the minimal number of doors is poor consultation at best.   We have also been advised by residents of Leighton Terrace that they did not receive advance notice by Ashcroft of their request to be allowed to work for much of the night.   We wonder if the south facing residents of Ashcroft`s existing  condo across the road from 114 Richmond Road have also received any information on the construction status of the convent project.   Given the minimal job that Ashcroft has done to date in keeping the community advised, as discussed at our November 2012 AGM which you had attended, we had hoped that your office would have taken a leadership role in trying to get Ashcroft to do more consulting with the community.  As a minimum, we would have hoped that as soon as your office found out information on any construction matters that affected the neighbourhood that the information would have provided it to the neighbourhood immediately.    Why was the community not advised in advance by your office  that Ashcroft was seeking this exemption to the noise-bylaw?

To summarize, our main concerns are that this motion was brought forward with no advance notification to the community and that it appears to be too broadly worded and could easily be taken of advantage of should Ashcroft decide to interpret it in the context of the actual noise bylaw (particularly the definition of construction equipment).  We are concerned as to what steps City Hall will take if Ashcroft chooses to go beyond the scope of the “whereas.”   We would also like to know how this motion does not become a precedent for all developers in Ottawa.  We look forward to receiving your response to our detailed questions above.

Sincerely,
Lorne Cutler
President
Hampton Iona Community Group

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