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HRM / Ingramport The People's Movement Against Monopoly Right

Full Text

filed with the Nova Scotia Utility and Review Board
December 6, 2006
Mr. Roland Deveau
Nova Scotia Utility and Review Board Lower Water St., Halifax, NS
Hand-delivered

IN THE MATTER OF an appeal by James Fryday et al, of an approval of a development agreement with Destiny Developments Inc. to permit the development of a 12 townhouse style dwelling units and private amenity and recreation space at 7990 St. Margaret's Bay Rd, Ingramport, PL-06-07

Mr. Chairman: Please accept this letter as a written summation of the issues and arguments to be presented on behalf of the appellants, the residents of Ingramport and surrounding area, at the hearing to commence January 15, 2007.

The Central Issue and Jurisdiction of the Board

It is the understanding of the Appellants that the central issue to be determined by the Board is whether the decision of the Halifax Regional Municipality ("HRM") in the above mentioned development agreement is reasonably consistent with the intent of the Municipal Planning Strategy ("MPS"). This will be addressed in three ways. First, there will be a general discussion of the general planning principles and the flaws in the decision inherent in the approach taken by HRM. Second, the Appellants will lead evidence related to specific flaws in the development agreement which cannot be considered to be reasonably consistent with the MPS. Finally, there are several violations of municipal by-laws contemplated by the proposed development and these will be discussed, to the extent that they constitute inconsistency with the MPS.

Section 1: General Considerations relating to the MPS and Planning Principles

The Appellants submit that there are general considerations of land use planning that are deemed to form a fundamental aspect of the MPS. Failure to follow these generally accepted principles of planning necessitate a finding that HRM has not acted in a manner reasonably consistent with the MPS. There are two general considerations that pervade the HRM decision to grant the Development Agreement in this case that the Appellants submit constitute a breach of the Municipal Planning Strategy.

The first fundamental principle is public consultation. This is not only a deemed principle of planning but indeed is specifically referenced in several places in the current MPS and in general such as IM-9 e) "any other relevant matter of planning concern" which includes all the concerns HRM has heard from the community consistently at the first planning meeting and has not included said concerns in HRMs council meetings, such as the April 2005 at a public meeting of 98% against the proposal and a survey conducted of the area (Attachment 2).

IM-20 - When evaluating a proposal for a development agreement or rezoning under this Plan or a Secondary Planning Strategy, all applicable policies under this Plan shall be considered, with the exception of non-substantive amendments to existing development agreements entered into prior to the effective date of this Plan and any agreement pursuant to Policy IM-21. "Citizens need to be confident in the governance and management of HRM, and should feel that they are making a difference and can actively participate in its future direction.

The aim is to engage citizens in an ongoing dialogue through education, promotion and public debate on regional and local issues. This ability to participate should be inclusive and accessible to all. Effective communication among Council, staff, residents, businesses, public agencies and other levels of government is key to achieving the regional vision."

and

9.3.2 Effective Public Participation Programs

To be successful, participation programs must offer meaningful opportunities for the public to become involved, respect the time and effort made by the public to provide comments, and demonstrate that the input will be seriously considered Focusing consultation where it is most effective avoids needlessly prolonging decision-making. Timely notification of upcoming events, clearly presented background information and credible analysis are all critical to effective participation Participation programs need to be transparent, inclusive, collaborative, and provide an opportunity for the constructive exchange of information. The programs need to provide an opportunity for participants to work together with government to generate solutions that may not have

otherwise been considered. This enables municipal decisions to benefit from local knowledge and ideas, while the public can learn about new concepts and successful examples from other municipalities.

This lack of inclusion leads to false premises and ergo, decision making. The entire community opposes the proposed development, (from the original 18 notified by HRM, 130 area surveys were completed) as noted at all previous public meetings and at the November 28, 2005 meeting with 440 people in attendance. It is flouting their own MPS when HRM staff, meeting and council reports make no reference to public opposition. The only reference to public concern in the main body of the report is to alleged concern over uncertainty with respect to the former 1991 agreement and over the proposed density in the original application, which the report says the developer addressed.

The development agreement regarding density and "a community within a community" concept is also not consistent with HRM planning department's Mission Statement, which forms the basis of MPS. The proposal is also not consistent with numerous other HRM commissioned reports such as the March 2005, Cultural Heritage Values model or the September 2004 Natural Step Sustainability Analysis.

In the current case there was a significant lack of public consultation relating to the final determination, in fact there was no public consultation at all relating to the final approval. There was limited disclosure leading up to a public hearing in February 2003 relating to a proposed development of 29 units with a possible public marina and restaurant. Subsequently there was considerable disclosure and work related to a public hearing November 28, 2005 to consider a development of 17 units with a marina. The final approved development agreement is a complete departure from the proposal considered November 2005. The hearing was also conducted with only 30 days notice to the public despite the fact that there were several complicated scientific and environmental issues (discussed later in this brief) that the developer was provided years to assess and prepare.

It is a "bait and switch' of the highest order and brings the entire planning process into disrepute
The Appellants submit that, at some point, the circumstances of consultation can be so fundamentally flawed as to constitute an elimination of consultation. The facts of this case clearly constitute an elimination of public consultation. The decision to reduce the units from 17 to 12 was made at the end of the public meeting without prior warning, a decision they later acknowledged was made in advance of the meeting. (This was one reason they had decided to proceed to past 11 pm, for a meeting that was advertised in advance at ending at 9 pm as per HRM's rules, with another meeting to be scheduled in continuance.) HRM considered that at that point there was no further public consultation required and there were no further public meetings held. This sets a dangerous precedent for this Board for future planning appeals. The message to developers who want a 40 unit apartment building erected in a residential area is to simply request a 60 unit building and then at the last minute of the public hearing drop 30% of the units and there is no need for future hearings on the matter. It is a "bait and switch' of the highest order and brings the entire planning process into disrepute. It is an unsophisticated and barely disguised mechanism to thwart public consultation and should not be supported by this Board.

Furthermore, the failure to provide adequate time for the public to consider the proposed development prior to the public hearing constitutes a fundamental flaw. This development is proposed in a highly sensitive ocean-side community with a low residential density and a thriving fishing community. The developer was given more than 18 months to develop information relating to the proposal however this was only made available to the public for scrutiny 30 days prior to the hearing in November 2005. This failure to provide adequate notice and information to the public again is a thinly veiled mechanism to subvert properly informed public input and makes a mockery of the concept of public consultation. It should not be supported by this Board. The notice provided to the public must be tailored to the complexity of the proposed development.

In a properly constituted and implemented planning process, the result of the public discussion should have been returned to the planning office and the developer should have been required to re-submit his proposal along the lines as those approved and the public should have been given the opportunity to carefully consider the revised proposal in its final form. This failure of public consultation alone is so fundamental as to support a finding by this Board that the development Agreement in this case is not "reasonably consistent" with the MPS and should be declared invalid by this Board.

Although the St. Margaret's Bay area/Halifax County was incorporated into HRM with amalgamation, as identified in the existing area MPS: "Of major concern to the residents of the Plan Area is the environment. As a result, a cornerstone of the Strategy for Planning Districts 1 and 3 is specific policy for its protection Furthermore, the relatively unspoiled environment is a major part of what makes this area an especially attractive place in which to live and it must be protected." This MPS for the bay was over-ridden by three HRM councillors, two not from the area and one from the area, all in conflict with constituents. Additionally in conflict for one councillor, besides a conflict of interest in being on the Greater Halifax Regional Partnership Board for which the developer pays a fee to belong, he appointed one speaker in favour (September 19, 2006 meeting) to his position (Bedford Watershed board). As with planning standard IM-22, "the more stringent shall prevail."

The second fundamental general principle to be considered relates to the pre-existing development agreements relied upon by HRM to determine their planning process. The material filed with the Board is replete with references by the planning department to prior development agreements DA-1&3 05-91-01 and its subsequent amendment DA-1&3-12-95-01A1. The developer and the planning office stated that if the community does not approve this development, they have the right to apply for a permit the next day for this previous DA. In the absence of a specific "sunset clause" as in every other jurisdiction, there is an implication and legal precedent that any agreement must be acted upon within a reasonable time.

The planners relied upon the pre-existing Development Agreement DA-1&3 05-91-01 and its subsequent amendment DA-1&3-12-95-01A1 in making a determination that the current proposed development is a reasonable use of the land. In planning and land use law, once outstanding DAs are abandoned they cannot be referred to and to rely upon them thwarts public consultation requirements by handicapping the process with a bias from the earlier agreements, that do not conform with the MPS. To consider past agreements in present context of new agreement should not be permitted.

It is obvious that had the developer wished to proceed with these development agreements in their precise and specific form there would be no issue and the residents would be stuck with that development. This is not the case and it is respectfully submitted that the failure to implement these agreements renders them completely irrelevant. These pre-existing agreements were also approved during a period where HRM required little or no public participation consultation in its development process. These agreements are therefore flawed ab initio and cannot be used for any purpose in the current context. Although there is specifically no "expiration date" on these agreements, it is clear that at some point a development plan approved 15 years ago (or 11 years from the amendment) can be so outdated as to render it totally irrelevant. In 1991, the area was completely undeveloped, administered by a county that accepted any kind of development, and it has since acquired a significant number of large single family properties which has altered the context of the Ingramport Bay community. As such, these outstanding DAs should not be considered and the appellants request they be discharged.

There seems to be a prevailing attitude with HRM planners (as evidenced by the record) that the current development agreement should be approved because "it could be worse'. This is completely false and an unlawful fettering of their discretion. If, for example, an apartment building and attached strip mall had been planned for the land in 1975 but never followed through, surely HRM would not be allowed to approve a drugstore and a gas station 40 years later because "it could have been worse". At some point, the time lapse and context of the area require a fresh review of the use of land when a new development agreement is being sought. The developer is NOT seeking to implement the existing development agreements; they are seeking a NEW development agreement.

Reliance upon these previous development agreements is also a further facet of the failure of HRM to conduct adequate public consultation. The original development agreement in 1991 was obtained with no public input, and to the extent that it has been given any relevance in the process, it violates the fundamental principle of public consultation.

Further, a report to HRM council by the planning department states HRM cannot address previous outstanding development agreements. However, it is noted this is not a legal opinion, either from HRM legal counsel OR outside legal counsel, this is the stated personal opinion only from the head of HRM's planning department, Paul Dunphy.

For all of these general reasons, it is respectfully submitted that this Board need go no further in its examination to offer the remedy sought by the Appellants. HRM should be instructed to send the matter back to its planning department for a fresh consideration of the land use and density without regard to the previous development agreements and conduct fresh public consultation with adequate time and notice to the public. This is the only conclusion that could be considered reasonably consistent with the intent of the Municipal Planning Strategy.

Section 2: Specific Matters relating to Inconsistency with MPS

In brief, this proposal is in violation to the MPS and in conflict with:

MRR-4 Policy criteria: a) grossly contrasts with existing design and scale, and it is not compatible to any degree with nearby land uses or density f) the impact of traffic, also in MRR-7

MRR-7 1 a) the site's characteristics do not make the location suitable for the scale, density and impact 2 b) the potential for adversely affecting nearby residential uses is substantial, nor do the staff comments address visual intrusion or littering 3 d) layout and the design of the facility is highly inconsistent with local use, existing area/regional housing 4 g) HRM staff comments were based on a flawed Environmental Assessment submitted by Jacques Whitford June 2004, for which a 13-page response critique was submitted to HRM and the province and was not considered 5 h) HRM incorporates contradictory statements on the allowance of a pump-out facility 6 j) the intended appearance of all buildings and structures in this proposal or past proposals which the developer intends to incorporate at a later date do not relate to nearby uses

According to IM-9 a) the proposal does not conform with planned bylaws and regulations, nor is there relation to HRM's new proposed regulations for infill c) the proposal conflicts with type of use and all other relevant matters of planning concern d) the site is not suitable, particularly any need for infill or with applied setbacks e) "any other relevant matter of planning concern" which includes all the concerns HRM has heard from the community consistently since the first planning meeting and has not responded to or incorporated concerns, including noting said concerns in HRMs council meetings, such as the April 2005 at a public meeting of 98% against the proposal and a survey conducted of the area (Attachment 2).

It is noted that Mr. R. Deveau made a site visit on September 19, 2006 but due to the fog, was unable to see the view or view from the historical marker/memorial bench on the Rails to Trails. A further site visit is offered.

Section 3: Specific Matters relating to existing HRM By-laws

The development agreement allows for numerous exceptions to By-Laws, which in themselves then would set a variation from existing and proposed, which then become the new precedents/benchmarks, negating the entire point of instituting By-Laws. HRM considers all lands within 100 feet of any watercourse to be "sensitive" and after receiving recommendations from Halifax Watershed Advisory Board to make adjustments to Development agreement even minimum setbacks are not followed as in the matter relating to the "Common" building. The development agreement allows for a" Private wharf". There is no definition in by-laws for same, nor any indication that HRM has Jurisdiction to approve such a structure. In this instance land based portion has no setback from watercourse. In consideration of permitted height and allowable "footprint" of common building by-laws have been unreasonably relaxed including no setback from watercourse.

The development agreement allows for 50% lot coverage when residential coverage is 35%. The development agreement allows for more than a 100% increase in permitted parking space not counting the option of side loading garages.

The development agreement allows for parking space and driveways to be constructed without Watershed Advisory recommended "oil grit separator". This appears to not be included for no other reason than cost. Given the nature of the development and theme based orientation, related to marine based activities such as boating, this exemption from recommendation is unacceptable in light of the proximity to an estuarine marine environment.

The development agreement allows for signage size in excess of by-laws. The approval of same creates a "community within a community" concept. Allowing signage of units such as "Mahone Bay Haven" are contrary to existing area land uses and cultural identity of the distinct community of Ingramport.

The development agreement does not include a survey although requested by planning at one stage and a legal description of land substituted. Diagrams of land area and relation to other property although helpful, do no include a survey of land at south west end which has watercourse, septic system and other construction below 2.5 meter sea level elevation. These areas have not adequately been addressed.

The development agreement does not include any appropriate information with regard to traffic and safety issues, specifically with regard to ingress ,egress, or stopping distances from entrances or exits. Only that Dept. of Transportation indicates the # 3 highway can handle the traffic.

The development agreement specifies 16 ft separation between units yet allows walls of unspecified height, length shown attached to dwellings. No written information is provided as to location use or size. In effect units can be joined by walls thus visually giving the effect of higher density all of which including the proposed density of housing affect viewplane from public parkland with an overview of the development site.

The development agreement does not include any plans showing exterior or interior or relation to "Private wharf" with respect to use or location other than at "high tide watermark".

Council approved private wharf, 372 ft boardwalk/wharf/docking facility of unknown width, without any drawings of same for public consultation. Council deleted a breakwater with the agreement of the developer, when neither have ownership, control, lease of crown land to permit, or jurisdiction. In effect, the public is given the impression something is being 'given up' when it doesn't exist, as an exchange for agreement for density in housing. The developer and HRM did this previously by admitting they "neglected" to include plans for a 50-seat restaurant and 30-seat lounge in advance, introducing such as part of the overall proposal at a public meeting, then saying due to public input the proposal was withdrawn, again saying they had voluntarily given up their option to include same.

The above by-law issues in totality, combined with the stated intent in some matters and lack of any information in others in the context of the public consultation process is not consistent with the intent of the "MPS" as required.

Conclusion and Remedy Sought

For all of the reasons outlined above, it is respectfully submitted that this Board should overturn the HRMs decision in its entirety, and counsel HRM against future such matters that contravene the MPS/new Regional Plan relating to this property.

Further, the outstanding 1991 DA (DA-1&3-05-91-01) and subsequent 1995 amended agreement (DA-1&3-12-95-01-A1) be discharged. Although an agreement can move with land, according to such regulations as MRR-5, MRR-6 and MRR-7, outstanding DAs do not qualify (nor met the 1984 SMBMPS that superseded both applications and development agreements). It is respectfully submitted the previous outstanding development agreements be dismissed, and suggested in general that the matter of outstanding development agreements be referred back to HRM's legal department and outside counsel for a fresh consideration of land use, density, the current MPS/proposed new Regional Plan. That further to the comment by HRM staff at the April 14, 2005 public meeting, amendments be made to the Municipal Government Act: HRM staff noted outstanding DA could be discharged "if there is a change to the Municipal Government Act that says Council can discharge them after a certain number of years " Identifying matters to resolve at the provincial level is also noted under IM-25 of the RMPS to (i) identify any new issues which need resolution at the municipal-wide level.

Further, when a property is sold in a non-familial relationship, similar to the precedent in Nova Scotia in regard to property tax, the new owners be required to begin development proposals tabula rasa.

The Order should also clarify that any development agreement must be consistent with the MPS and By-Law issues outlined herein.

Further, it is suggested any future public consultation be mandated to include consultation with adequate time and notice to the public.

This is the only conclusion that could be considered reasonably consistent with the intent of the Municipal Planning Strategy.

All of which is respectfully submitted on behalf of the Appellants,

Jim Fryday





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