Staff Report: DARK SKIES REPORT

Planning & Development Report

TO: Committee of the Whole DATE: May 27, 2016 FROM: Lindsay Chase, MCIP, RPP FILE NO:

DARK SKIES REPORT

RECOMMENDATION:

THAT this report be received for information.

CHIEF ADMINISTRATIVE OFFICER COMMENTS:

I concur with the recommendation.

PURPOSE OF REPORT:

To respond to a request for information about Dark Skies policy and to provide information on what the Town is already doing in this regard.

BACKGROUND:

The Town has received complaints and requests for action from a resident in the newly built Coho buildings regarding light pollution. A related question from Council is with respect to the timing of the Development Permit Application for 1730 Island Highway (Jenner property).

Staff have reviewed both the Community Charter and the Local Government Act to determine the scope of our powers to address such issues. In short, we are constrained in terms of the ability to regulate (require or demand action) in this sphere. Instead, the Town has used our limited powers in other areas to attempt to address the issue of light. Specifically, we have policies embedded in our Development Permit areas for form and character of new development, and we are exploring how to regulate light coming from new signs. The discussion section that follows sets out what we have already done given the limitations of the enabling legislation.

DISCUSSION:

This section of the report focuses on two matters:

The powers that are available to the Town and what we are presently doing with them; and
The 2010 DP application at 1730 Island Highway.

The Town's Official Community Plan, adopted in 2011, speaks to a number of topics that could be characterized as relating to both the environment and quality of life. This document is not regulatory in the same way that zoning is. An official community plan is a compilation of statements of a desired future state with accompanying goals and objectives that are implemented in a variety of ways. Policies and guidelines within the OCP are understood as a best practice that we support and try to meet.

The following is an excerpt from the Official Community Plan and provides context for the direction taken with guidelines in the Form and Character Development Permit Areas:

Policy NE2.5 Ecologically Sensitive and Energy Efficient Design

Ensure that all private and public building and infrastructure projects support environmental enhancement practices and the policies contained in this OCP. Encourage development proposals that design "with the land", and employ best practices for ecological sensitivity and energy efficiency. Planning and design considerations should include:

Integration of natural features and topography into the planning and design.
Measures to maximize the amount of greenspace and reduce the development footprint.
Protection of soil and vegetation during construction.
Use of native landscaping.
Energy and water efficient building design.
Bio-retention, alternative energy and best practices for reducing energy needs, and promoting resource conservation, onsite wastewater management and natural systems.
Measures to minimize impermeable surface areas.
Measures to avoid light pollution from artificial lighting and mitigate noise from development, transportation and other human-generated sources. (emphasis added)
Restriction of utilities to underground corridors wherever possible.

The legislation does not however directly allow municipalities to regulate lighting in the same way that we regulate land use. Instead, we take a policy approach through our development permit areas by establishing guidelines that relate to lighting. In View Royal, the policy language is the same for all of our Form and Character Development Permit areas:

GUIDELINES – LIGHTING

i. Building and site lighting should be sufficient to ensure pedestrian and vehicle safety. ii. Outdoor lighting should be regulated to control the quantity, quality and direction of night lighting. Lighting fixtures that are "dark skies" friendly to limit light pollution at night are encouraged. iii. On-site lighting standards should be pedestrian scale, while providing sufficient light for automobile traffic. iv. Lighting standards should be consistent with street furniture and garbage/recycling containers. v. Outdoor electrical outlets should be provided at regular intervals to facilitate the installation of seasonal/decorative outdoor lighting. vi. Where pole mounted lighting is necessary, light standard luminaries should be no more than 40,000 lumens and mounted on poles no more than 5 metres high.

The language of Development Permit Areas is challenging. Development Permits are not a regulatory tool in the same way that zoning is. Guidelines are established, and staff and Council evaluate how well a development meets the guidelines. In a situation where Council does not approve a Development Permit, reasons for this decision must be provided to the applicant along with guidance on what would constitute a satisfactory application. However, the language of Development Permit Areas is one of policy and we are not able to regulate (make explicit requirements) through this tool.

There have been suggestions that the Town develop new regulations and that these should apply retroactively. There are two distinct challenges with this—the first is that the enabling legislation does not speak directly to municipalities having the ability to regulate light emissions and as a result, we use other tools to attempt to address the issue. Secondly, like any policy or regulation, retroactive application of a new rule is contrary to the laws of natural justice and is beyond the powers conferred upon local government.

In considering the policy environment that the Town has created, it is important to also consider that policy (and regulation) need to be read as a whole, and quite broadly. In this case, it is also important to note that commercial use in the area is longstanding, and predates the construction of the Coho by some years. There are many statements in the OCP that support the ongoing commercial use of lands in this area and the OCP was amended to allow residential use on the site that complaints come from. While business practices change over time, along with our best practices, it is important to note that these changes will take time even after the Town has updated the best practices that guide our work.

DP application for 1730 Island Highway

In response to a Council request regarding the date of application for the Development Permit at 1730 Island Highway, DP2010/18 was approved on November 2, 2010 under the previous Official Community Plan (Bylaw No. 361, 1999). The site was within the Business Park Commercial Development Permit area, which included the following guideline with respect to lighting:

provide adequate lighting that is sufficient for a variety of safety consideration, yet is unobtrusive to adjacent and surrounding development and passing motor vehicle traffic, and minimizes the affect of lighting on the night sky.

The Development Permit application did include a lighting plan that specified lighting fixtures that met this guideline, and the application was approved.

In conclusion, staff believes that the language of the Development Permit guidelines has become much stronger over time and addresses the Town's interest in being dark skies friendly. As we continue to update the sign bylaw, our proposed approach to managing light related to signage is an innovative way to address this issue using the available powers granted to municipalities. As we move forward with new development these new practices and changes will be implemented.