Or Other Property: what three little words can mean in the proposed new noise by-law

UPDATE: So the three little words remain, "or other property", but my concern about it was mooted by a motion by Councillor Chiarelli to require the local councillor to sign-off on any exemptions. My worry was the delegated powers that were intended for city-related projects would slowly, over time, morph into a general power applicable to any project on "other property" because the wording (in my view) would allow that. But with councillors back in the loop those hypothetical, unintended exemptions are (a) less likely to get approved and (b) won't be approved without governance oversight. The puritan in me still wants the words removed, but the real-politik says it's moot. Of course, this assumes Council doesn't undo Chiarelli's amendment.

At this morning's Community and Protective Services committee meeting staff are proposing changes to the noise by-law to expand the delegated powers they will have to appove noise by-law exemptions. If the committee and then council approve the new text, they will effectively wiggle themselves out of having to approve noisy construction schedules down the road.

You may have thoughts on that, as I do, but I'm going to focus in on just three words in the proposed by-law: "or other property".

When the "mews" blew up in Council's face a few months ago, Planning Committee chair Peter Hume took pains to explain to Council that staff acts on the text of the motions that council passes - not necessarily on the intent that was in council's brains at the moment. That's why he rightly demanded the minutes be fixed (because staff made a simple error - and council approved their own minutes without reading them in detail).

I sent an email delegation to the committee on Oct 7 - a week ago - outlining my concerns that the new text is too loose. In the report (which is not binding, relative to an enacted by-law) staff outline that the "or other projects" by third parties should only be exempted when the construction would impact the city. Perhaps road closures for concrete trucks, etc.

The problem is, the actual text states no such limitations to staff's new delegated powers. It boils down to <third party construction projects are projects that happens on ..., "or other property">. No asterisks or footnotes.

I'd love to be wrong, and called out for not knowing how to read a bylaw. I'd also hate to find out that the condo boom that is coming gets unlimited noise exemptions because staff can and the 2014-2018 council just shrugs and says "well, it was approved, so it must have been a good idea".

Cynic view: council wants to pull a fast one.

Depressing view: sloppy work is just going to slide through, un-reviewed (see sloppy minutes reference above)

The committee has had my email, below, for a week but no response. Thankfully I'm able to appear in person today so hopefully we can get an answer. Will update here later.

The proposed new section to the noise by-law will empower staff to exempt any construction project, of any nature, by anyone, which does not align with the preamble in the report. 

The report text implied the additional exemption powers would only relate to city construction projects, or projects that impact city services - see bolded text:

approve amendments to the Noise By-law (By-law 2004-253) to provide, under certain conditions, for noise exemptions for municipal construction projects and third party construction projects that have a significant impact on municipal services, as described in this report and in Document 1;

However, the drafting instructions in Document 1 do not align with the report. First, the definition of "third party construction" is too loose and does not limit a project's eligibility to only those that impact municipal services (the term "municipal services" does not appear in the definition). See bold.

Third-Party Construction Project means a construction project undertaken by a third-party (non-City) proponent where the construction and related activities are expected to have a significant impact on City highways, City property, or other property, or City services, and the noise generated from such activities require an exemption from the provisions of this by-law 

Nothing else in the remaining drafting instructions limits the delegation of powers.

So, the report text implies the new delegated powers are limited to municipal projects, such as LRT or roadworks, etc even if the noise is generated on "other property" adjacent to the work. However, the drafting instructions are not written with the same restrictions. By example, the resent Ashcroft condo exemption would appear to fit the definition of Third Party Construction Project in the new by-law, even though it has no impact on municipal services.

Won't this result in an unintended outcome - allowing staff to exempt any construction project on "other property" - regardless of its nature?

I suggest a tighter wording should be applied in the new by-law. Or, the actual intent of Council should be reflected in the report - that Council wishes to delegate all construction noise exemptions to staff.