DECISION 2012 NSUARB 155 M04790

NOV A SCOTIA UTILITY AND REVIEW BOARD

IN MATTER OF THE HALIFAX REGIONAL MUNICIPALITY CHARTER

-and-

IN THE MATTER OF AN APPEAL by MONACO INVESTMENTS PARTNERSHIP from a decision of Harbour East Community Council, of the Halifax Regional Municipality, which refused to rezone property at 307 Prince Albert Road and 5 Glenwood Avenue in Dartmouth from C-2 and R-2 to R-4 High Density Residential, and refused to approve a development agreement for the construction of a 15-storey, 94-unit building

BEFORE:

COUNSEL:

INTERVENORS:

PRELIMINARY HEARING DATES:

HEARING DATES:

WRITTEN SUBMISSIONS FOR HEARING ON THE MERITS:

DECISION DATE:

DECISION:

Document: 209348

Wayne D. Cochrane, Q.C., Member

MONACO INVESTMENTS PARTNERSHIP Peter M. Rogers, Q.C. Jane O'Neill, LL.B.

HALIFAX REGIONAL MUNICIPALITY Karen L. Brown, LL.B. E. Roxanne Maclaurin, LL.B.

JEFF WEATHERHEAD, CARL HUNTINGTON, NANCY MCINNIS LEEK Jeff Weatherhead, LL.B.

February 9, 2012 March 26, 2012 April 12, 2012 May 2, 2012

May 4, 7 and 8, 2012

May 30, 2012 - Post-Hearing (Appellant) May 30, 2012 - Post-Hearing (Respondent) May 30, 2012 - Post-Hearing (Intervenors) June 4, 2012 - Reply Submissions (Appellant)

October 12, 2012

Appeal Dismissed

2

Document: 209348

Table of Contents

1.0 INTRODUCTION .................................................................................................. 4 2.0 ISSUES ................................................................................................................ 5

2.1 Issue 1: Has the Appellant shown, on the balance of probabilities, that Harbour East Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy? ................................................. 5

2.2 Issue 2: Is the Appeal Before the Board of the Re-Zoning Application Only, or of the Re-Zoning Application and the Development Agreement Application? ............................................................................................... 5

2.3 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy? .......................................................... 5

3.0 WITNESSES ........................................................................................................ 6 3.1 For the Appellant, Monaco ......................................................................... 6

3.1.1 Tony Maskine, M.A.Sc., P.Eng........................................................ 6 3.1.2 Mitch Dickey, Planner, HRM ........................................................... 6 3.1.3 Hanqing Wu, Ph.D., P.Eng. ............................................................. 6 3.1.4 Robert T. LeBlanc, APALA, CSLA, ASLA, MCIP, APA, LPP, LEED AP 7 3.1.5 Kenneth R. O’Brien, P.Eng, M. Eng. ............................................... 7 3.1.6 John Heseltine, LPP, MCIP ............................................................. 7 3.1.7 Margot Young, CSLA, MCIP ........................................................... 7

3.2 For the Respondent, HRM, and Intervenors .............................................. 9 3.2.1 Maurice E. Lloyd, P.Eng., FCIP, LPP .............................................. 9

4.0 FACTS ................................................................................................................ 10 4.1 Site Visit ................................................................................................... 38

5.0 ANALYSIS AND FINDINGS ............................................................................... 40 5.1 Preliminary Hearings................................................................................ 40 5.2 Municipal Government Act and Halifax Regional Municipality Charter .... 40 5.3 Usage of Terms: “MPS,” “DMPS,” “RMPS” .............................................. 41 5.4 Burden of Proof ........................................................................................ 41 5.5 Standard of Proof ..................................................................................... 41 5.6 Applicable Principles of Statutory Interpretation ...................................... 41 5.7 Board’s Fact Finding Role ........................................................................ 41 5.8 Municipal Councils as the “Primary Authority” for Planning ..................... 42 5.9 Board’s Limited Authority in Planning Appeals ........................................ 43 5.10 Issue 1: Rezoning ................................................................................... 46 Has the Appellant shown, on the balance of probabilities, that Harbour East

Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy? .................................................................................. 46 5.10.1 Irrelevance of Possible Future Changes to the MPS..................... 46 5.10.2 Rezoning Topics ........................................................................... 47

3

Document: 209348

5.10.3 A Hierarchy of Municipal Planning Strategies: the Regional Municipal Planning Strategy (RMPS) and the Dartmouth Municipal Planning Strategy (DMPS) ............................................................ 48

5.10.4 DMPS Policy IP-1(c) ..................................................................... 54 5.10.5 Emphasis by Monaco on C-2 Zoning ............................................ 64 5.10.6 Wind, Traffic and Shadows ........................................................... 70

5.10.6.1 Wind ...................................................................... 70 5.10.6.1.1 Are Wind Effects on Lake Banook a Matter

Which may Properly be Regarded under the MPS, in the Context of this Proceeding? ...... 70

5.10.6.1.2 What is the Evidence Respecting Wind on Lake Banook, in the Context of the MPS? .... 75

5.10.6.2 Traffic ...................................................................... 81 5.10.6.3 Shadows ...................................................................... 85

5.10.7 Population Densification; Opportunity Sites .................................. 87 5.10.7.1 Population Growth in The Regional Centre: “Population

Densification” ................................................................ 88 5.10.7.2 Opportunity Sites .......................................................... 93

5.10.8 Conclusion with Respect to Council’s Refusal to Rezone ........... 101 5.11 Issues 2 and 3: Development Agreement ............................................. 106

5.11.1 Issue 2: Is the Appeal Before the Board of the Re-Zoning Application Only, or of the Re-Zoning Application and the Development Agreement Application? ........................................ 106

5.11.2 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy? ............................ 114 5.11.2.1 Provisions in the RMPS and DMPS Dealing with

Development Agreements ........................................... 114 5.11.2.2 Conclusion on Development Agreement Application .. 119 5.11.2.3 DMPS Policy IP-5 (a) and (b) and the Provisions of the

DLUB .................................................................... 120 5.11.2.3.1 Mr. Dickey’s Bonus Calculations ................. 121 5.11.2.3.2 Can the DLUB be used to interpret the MPS?

.................................................................... 123 6.0 CRITICISMS OF COUNCIL’S PROCESS BY DEVELOPER AND OTHERS ... 127 7.0 CONCLUSION .................................................................................................. 129

4

Document: 209348

1.0 INTRODUCTION

[1] Monaco Investments Partnership wants to build a 15-storey, 92-unit

residential building, to be called “The Prince Albert,” on the corner of Prince Albert Road

and Glenwood Avenue in Dartmouth.

[2] The area in which the subject property is located includes residential and

commercial uses, all of which are low to medium rise (the maximum having five storeys,

with most being one or two storeys). A large residential area, with houses of one to two

storeys, directly abuts (i.e., touches) the subject property.

[3] If built, Monaco’s tower would be less than 500 feet from the eastern shore

of Lake Banook. For many decades, the Lake has been intensively used for training

and competition in racing kayaks and canoes, at the local, provincial, national and

international levels. Since 2005, a 35-foot height-restriction area has encircled Lake

Banook, within which, in general, no new building may be constructed which is higher

than 35 feet. The subject property abuts the edge of the height-restriction area, but is

outside it.

[4] Monaco applied to Halifax Regional Municipality, asking for rezoning of the

subject property, and for approval of a development agreement. HRM’s Harbour East

Community Council rejected the application, and Monaco appealed to the Nova Scotia

Utility and Review Board.

[5] Monaco asserts that HRM’s refusal to approve the application to rezone

should be reversed, as failing to reasonably carry out the intent of the Municipal

Planning Strategy. Monaco furthers asserts that HRM refused not just the application to

rezone, but also the application for a development agreement.

5

Document: 209348

[6] In this proceeding, Monaco asks that the Board order HRM to grant the

rezoning, and also order HRM to approve the development agreement.

[7] In reply, HRM, supported by the Intervenors, says that Council’s decision to

refuse the application to rezone did reasonably carry out the intent of the MPS, and

accordingly, ought not to be reversed.

[8] HRM also says that the only appeal properly before the Board is that of the

refusal to rezone, and not of the refusal to approve the development agreement.

2.0 ISSUES

2.1 Issue 1: Has the Appellant shown, on the balance of probabilities, that Harbour East Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy?

For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses Monaco’s appeal with respect to the rezoning applications.

2.2 Issue 2: Is the Appeal Before the Board of the Re-Zoning Application Only, or of the Re-Zoning Application and the Development Agreement Application?

For reasons explained in the decision, the Board has decided to assume, without finding, that it has jurisdiction to hear the appeal of the development agreement application (Issue 3), in addition to the rezoning application (Issue 1).

2.3 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy?

For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses Monaco’s appeal with respect to the development agreement.

[9] The Board notes that its dismissal of Issue 3 is conditional upon the

Board’s assumption, under Issue 2, that it has jurisdiction to determine Issue 3.

6

Document: 209348

3.0 WITNESSES

3.1 For the Appellant, Monaco

[10] Seven witnesses (six of whom were qualified before the Board to give

opinion evidence) testified on behalf of the Appellant. All six expert witnesses prepared

reports which were filed with the Board; some of the experts filed more than one. The

opinion evidence covered in the reports related to municipal planning, wind, traffic, and

building-generated shadows.

3.1.1 Tony Maskine, M.A.Sc., P.Eng.

[11] Mr. Maskine has had a long career in property development in the Halifax

area, and is a principal of Monaco Investments Partnership.

3.1.2 Mitch Dickey, Planner, HRM

[12] Mr. Dickey was accepted as qualified to give opinion evidence in relation to

planning matters. Mr. Dickey is an employee of HRM’s planning staff, and HRM’s

principal planner in processing the Monaco applications. He was, however, called as a

witness by Monaco in this proceeding, and gave evidence which was critical of Harbour

East Community Council’s decision to refuse. As the Board will discuss later, his

testimony at the Board hearing differed in at least one significant way from the opinions

he had expressed previously (both in writing and orally) when advising Council.

3.1.3 Hanqing Wu, Ph.D., P.Eng.

[13] Dr. Wu was qualified as a wind engineer capable of giving evidence on the

pedestrian wind conditions on and around Monaco’s project, and the potential for the

proposed building to affect the existing wind conditions over the kayak and canoe

course on Lake Banook. He is a principal of Rowan Williams Davies & Irwin Inc.

7

Document: 209348

(RWDI), a firm of consulting engineers and scientists, in Guelph, Ontario, and has

testified previously before the Board. Besides his work on a wind report for the Monaco

project, he had in previous years worked on other wind documentation relevant to other

proposed projects near Lake Banook; none of these were built.

3.1.4 Robert T. LeBlanc, APALA, CSLA, ASLA, MCIP, APA, LPP, LEED AP

[14] Mr. LeBlanc was qualified as a landscape architect capable of giving

evidence on the generation and impact of shadows produced by the proposed Prince

Albert Development. He is President of Ekistics Planning & Design.

3.1.5 Kenneth R. O’Brien, P.Eng, M. Eng.

[15] Mr. O'Brien was qualified as a traffic engineer capable of giving evidence of

the traffic impact of the Prince Albert Development. He is Senior Traffic Engineer with

Genivar Consultants Limited Partnership, a consulting firm, and has worked with various

other consulting firms since retiring from the Nova Scotia Department of Transportation

and Infrastructure Renewal. He has given expert evidence previously before the Board

and the Nova Scotia Supreme Court. Besides his report documentation, another report

from Genivar relating to traffic was also filed in evidence. Its author was Greg O’Brien;

the latter Mr. O’Brien was not called as a witness.

3.1.6 John Heseltine, LPP, MCIP

3.1.7 Margot Young, CSLA, MCIP

[16] Mr. Heseltine and Ms. Young co-authored two reports which were filed with

the Board at different times. They testified together, as a panel. In this decision, the

Board will sometimes refer to them, and their evidence, jointly, as “Mr. Heseltine and

Ms. Young.”

8

Document: 209348

[17] Ms. Young was qualified as a land use planner capable of giving evidence

on the subject of the intent of the Municipal Planning Strategy and the extent to which

the proposed Prince Albert Development and Council's decision comply with the intent

of the Municipal Planning Strategy. She is a senior planner with EDM Environmental

Design Management Limited, and has previously given expert evidence before the

Board.

[18] Mr. Heseltine was qualified as a land use planner capable of giving

evidence on the subject of the intent of the Municipal Planning Strategy and the extent

to which the proposed Prince Albert Development and Council’s decision comply with

the intent of the Municipal Planning Strategy. He is a senior planner with STANTEC

Consulting Limited and has given expert evidence previously at proceedings before the

Board.

[19] While he testified against HRM’s position in this proceeding, he is part of a

group with whom HRM has contracted to study trends in population growth; his work on

that contract was reflected, to a significant degree, in the reports which he and Ms.

Young prepared for the Board, and in his oral testimony.

[20] Among other things, Mr. Heseltine and Ms. Young took the view that

Council’s decision to reject the Monaco proposal was contrary to the intent of the MPS.

This opinion was the opposite of that of Mr. Lloyd, who gave evidence on behalf of the

Respondent, HRM, and the Intervenors.

9

Document: 209348

3.2 For the Respondent, HRM, and Intervenors

[21] One witness testified on behalf of the Respondent, HRM, and also on

behalf of the Intervenors. He was qualified before the Board as an expert witness in

planning:

3.2.1 Maurice E. Lloyd, P.Eng., FCIP, LPP

[22] Mr. Lloyd was qualified as an expert in land use planning, capable of giving

expert opinion evidence on land use planning matters, including the intent of the

Regional Municipal Planning Strategy (RMPS), the Dartmouth Municipal Planning

Strategy (DMPS) and Land Use By-Law (LUB) and the extent to which Council's

decision with respect to the proposed Prince Albert Development reasonably carries out

the intent of the Municipal Planning Strategy.

[23] Mr. Lloyd is qualified as a professional engineer and as a planner (he is a

life member of the Association of Professional Engineers of Nova Scotia and the

Canadian Institute of Planners). He has testified previously in planning matters. While

the Board inferred that Mr. Lloyd is largely retired, he has remained active in planning

professional conferences.

[24] He volunteered his services to the Intervenors, and to HRM in this

proceeding. He has a personal connection with the dispute at the centre of this

proceeding: he has lived for many years on Cranston Avenue, within the neighbourhood

(as Mr. Lloyd, but not the Appellant Monaco, would define it) of the proposed

development.

10

Document: 209348

[25] As the Board has already noted above, it was Mr. Lloyd’s opinion that

Council’s decision to reject the Monaco proposal was one which reasonably carried out

the intent of the MPS.

[26] Further, it was his opinion that if Council had approved the Monaco

proposal, such a decision would have failed to reasonably carry out the intent of the

MPS.

[27] These opinions were contrary to those expressed in the report of Mr.

Heseltine and Ms. Young, and contrary to the opinions expressed by Mr. Dickey in his

testimony at the Board.

4.0 FACTS

[28] The property which is the subject of this appeal is located on Prince Albert

Road and Glenwood Avenue and consists of two separate lots.

[29] The first lot, 307 Prince Albert Road, has been used by Walker’s Funeral

Home for several decades. While the funeral home building and its associated parking

lot remain, the funeral home has either ceased operating, or is operating infrequently.

[30] The second lot is 5 Glenwood Avenue, which has for many years contained

a two-unit residential home. It is the developer’s intent to demolish both buildings in

order to make room for the proposed project.

[31] The Prince Albert Road lot is 18,807 square feet in size, while the

Glenwood Avenue lot is 6,900 square feet in size, for a total of 25,707 square feet.

[32] As part of its application to HRM, Monaco asked that 307 Prince Albert

Road be rezoned from C-2 (General Business) to R-4 (Multiple-family Residential one –

High Density); it asked that 5 Glenwood Avenue be rezoned from R-2 (Two-family

11

Document: 209348

Residential) to R-4. 5 Glenwood is within an R-2 (two-family residential) Zone which

extends up Glenwood Avenue. Glenwood Avenue is a long street, which, except for the

funeral home and Robin’s Donuts on either side, at its base, is composed of single

family or duplex houses, having one or two storeys. Mr. Dickey’s report to Council

(while it supported Monaco’s proposal) refers to Glenwood as having a “suburban-style

streetscape,” with “substantial setbacks.”

[33] If built, Monaco’s tower would probably be set up as a condominium, but it

could also be a rental property.

[34] The proposed 15-storey tower (14 storeys plus a penthouse) would rise

from what is presently the C-2 lot, at 307 Prince Albert Road. The C-2 lot and the

abutting R-2 lot (5 Glenwood Avenue) would, together, contain three levels of

underground parking.

[35] In addition to asking that the two properties be rezoned, Monaco asked that

HRM approve a development agreement for the project. The reason is that, since 1991,

no new residential building with three units or more has been permitted in Dartmouth

unless Council approves a development agreement for the particular project.

[36] Up until 1991, high-rise development could occur in Dartmouth as of right,

in the R-3 and R-4 Zones. The approval and construction of several tall apartment

buildings in Dartmouth led to significant controversy. Included among these buildings

were ones constructed in an area running from the west side of Lake Banook (i.e., on

the opposite side of the lake from the subject property) down toward the Harbour.

[37] In 1991, Dartmouth City Council responded to the controversy by

amending the DMPS to eliminate as of right development in the R-3 and R-4 Zones.

12

Document: 209348

Central to this decision was the addition of DMPS Policy IP-5 which in effect requires

that multiple-family residential dwellings containing three or more units (hereinafter,

“apartment buildings”) can only be constructed through the use of a development

agreement. DMPS Policy IP-5 is discussed at length in this decision, particularly in the

part headed “Development Agreement.” From 1991 onward, then, all apartment

buildings in Dartmouth have required a development agreement.

[38] However, Council chose to retain the R-3 and R-3 Zoning By-Laws. Given

that, since 1991, all new apartment building development has been by way of

development agreement, rather than as of right, the continued presence of the R-3 and

R-4 zoning provisions in the Land-Use By-Law can fairly be described, in the Board’s

view, as surprising. Certainly, the significance of their continued presence was a matter

of dispute (see the “Development Agreement” section below) amongst the experts

testifying before the Board and Counsel.

[39] Three of the buildings approved prior to the 1991 amendment (30

Brookdale Crescent, 26 Brookdale Crescent, and 28 Brookdale Crescent) are clustered

in a wooded area near the northwest shore of Lake Banook. The tallest is 10 storeys

high, and the other two are seven storeys high.

[40] Two others – 1 Oak Street (15 storeys) and 55 Crichton Avenue (13

storeys) – are located a few hundred feet to the west of Sullivan’s Pond. Sullivan’s

Pond lies between the extreme southwestern tip of Lake Banook (a few hundred feet to

the north of Sullivan’s Pond) and Dartmouth Cove, an inlet of Halifax Harbour. The

Board notes that the second planning report (May 2, 2012) of Mr. Heseltine and Ms.

Young refers to 1 Oak Street and 55 Crichton Avenue as being:

…in the neighbourhood adjacent to Lake Banook.

13

Document: 209348

This was corrected in the course of the hearing, and the words “Sullivan’s Pond”

substituted for “Lake Banook.”

[41] At this point, a general description of the Prince Albert Road area (both the

road itself and associated side streets) will provide additional context.

[42] Lake Banook is – very roughly – rectangular in shape, with the long axis of

the rectangle running, again very roughly, from the southwest to the northeast. Prince

Albert Road runs along the eastern shore of Lake Banook. If one views the area from

the perspective of Prince Albert Road, and begins at the southwestern end of the Lake,

one sees on the left, on both sides of the Lake, various boat clubs. These clubs are

used for recreation generally and more specifically to train competitors in racing kayaks

and canoes.

[43] Between the left side (or western side) of Prince Albert Road and the Lake

is a narrow band of parkland, which runs all the way along the eastern shore of Lake

Banook until just a few hundred feet short of the subject property. To the eastern side

of Prince Albert Road (or to the right, if one is moving north-easterly along Prince Albert)

one encounters at the southwestern end of Lake Banook older houses, followed by

some parkland, which gives way to a cluster of older houses.

[44] Moving north past the houses, one encounters a low-rise condominium, of

three to four storeys. Known as Banook Shores, this condominium development faces

Lake Banook, across Prince Albert Road and the intervening narrow band of parkland.

[45] A vacant lot, where a gasoline service station formerly stood, is north of the

condominiums. The north side of the vacant lot abuts the Robin’s Donuts property on

the corner of Glenwood Avenue and Prince Albert Road. While the Robin’s Donuts

14

Document: 209348

building is just across the street from the subject property, it is inside (i.e., subject to)

the 35-foot height-restriction area, but the subject property is not.

[46] Directly across Prince Albert Road from the subject property (and inside

the 35-foot height-restriction area) lies a small area zoned C-2, immediately behind

which is a thumb-shaped area of land projecting into Lake Banook, which is occupied

mostly by single-family and duplex housing, many with water frontage. There is also a

significant amount of woodland. Immediately to the north of this residential area lies a

municipal park with extensive shoreline on Lake Banook, known as Graham’s Grove.

[47] To the northeast of the subject property (or to the right if one is standing at

the front of the property facing Prince Albert Road), lies Yuille Auto Works, and two

buildings (variously referred to in the evidence with the term motel, hotel, lodge, or inn;

the Board will use the term “motel”). One is two storey and the other, four storey. The

motels lie on either side of Lawrence Street, a very narrow roadway running 90 degrees

from Prince Albert Road, and leading to three 42-unit apartment buildings of four

storeys each.

[48] Around this point, Prince Albert Road divides into two branches. The left-

hand branch, carrying the bulk of the traffic which had been on Prince Albert Road,

continues to the north, passing Graham’s Grove on the left (or west), and the large

Superstore on the right (or east). It then leads to ramps leading onto the

Circumferential Highway, and to the Waverley Road, along the shore of Lake MicMac.

[49] The right-hand branch of Prince Albert Road (which continues to be called

Prince Albert Road) continues to the northeast, and is less heavily travelled than the

left-hand branch. It has on the northwest (or left side) the Superstore. On the

15

Document: 209348

northeast, or right side, just after the two-storey Express Lodge at 317 Prince Albert

Road, is the NAPA store. Thereafter is the proposed entrance to the Twin Lakes project

site (discussed later in this decision), and a succession of two-storey duplexes.

[50] The section of Prince Albert Road which the Board has just described

(running from the beginning of Sullivan’s Pond to the duplexes on the east side of

Prince Albert Road which face the Superstore and highway-access ramps for the

Circumferential Highway) is perhaps a mile in length, or a little more. Throughout its

length, the land upon which Prince Albert Road itself runs, and the land to the left of the

road, is flat. While the land immediately to the right of the road is flat, it rises as one

moves away from the eastern edge of Prince Albert Road.

[51] The rise begins within a few hundred feet (and in some instances,

especially at the southwestern end, within just a few feet) of the edge of Prince Albert

Road. The slope eventually rises quite steeply to meet the crest of a long ridge which

runs, very roughly, parallel to Prince Albert Road, and extends down to the eastern

shore of Sullivan’s Pond and Lake Banook.

[52] These lands are occupied almost entirely (except for occasional uses such

as churches, schools, convenience stores, etc.) by residential buildings. Many of these

are single-family, but some are duplexes, and there are also some low-rise apartment

buildings.

[53] These residential buildings cover the relatively flat highlands to the east of

the ridge, and where the topography (including buildings) is not too steep, spill down the

slopes from the ridge top, and either front directly on Prince Albert Road (which is

16

Document: 209348

predominantly residential throughout the length the Board has just described) or abut

commercial properties which themselves are on Prince Albert Road.

[54] Thus, to give but one example, single-family or duplex housing on

Glenwood Avenue abuts the subject property – indeed, the subject property, comprised

as it is of two lots, one being zoned C-2 and the other being R-2, itself contains land

which was (at least until its purchase by Monaco) used for low-density residential

purposes. In essence, Glenwood, which is one of the roads rising up the slope to the

ridge from Prince Albert, is a residential street, dominated mostly by single-family, and

some duplex houses.

[55] The Board will now return now to the matter of the 1991 controversy over

the type of apartment buildings appropriate in Dartmouth, and, in particular, in the

Banook area. Controversy about this subject – particularly with respect to height – did

not end in 1991, with the adoption of the requirement that all new residential buildings

with three units or more would be possible only through development agreements.

[56] In 2004, there was some discussion in relation to a possible

redevelopment, in the form of a condominium project proposed by United Gulf

Developments Limited, of the former YMCA site at the northwest corner of Lake

Banook, next to the Circumferential Highway. The proposed development was to

consist of two 12-storey towers, with ground-level townhouses, to replace the

demolished two-storey YMCA building which had existed on the site.

[57] RWDI (of which Dr. Wu, who testified in the present proceeding, is a

principal) was engaged to look into, and prepared a report upon, the matter of possible

effects upon winds over the canoe course. There was a further wind study in November

17

Document: 209348

of 2009. By agreement between the parties, the 2004 and 2009 reports were filed by

Mr. Weatherhead on behalf of the Intervenors, rather than, as might otherwise be

expected, by Counsel for the Appellant. While the reports were referred to, their

contents were not, in the Board’s judgment, subjected to significant exploration in the

course of the proceeding.

[58] The evidence before the Board with respect to the YMCA project is limited,

but the Board concludes from the evidence which is before it that the project did not go

forward and achieve approval from HRM.

[59] Also in 2004, the same year as the YMCA discussions, controversy arose

over the proposed construction of a seven-storey building on the eastern shore of Lake

Banook, on what is referred to as the “Paddlers Cove” site.

[60] The “Paddlers Cove” site is less than 100 yards west of the subject

property, but on the Lake Banook side of Prince Albert Road. It is currently occupied by

a two-storey building, which has been variously used for business offices and a

restaurant. At its name perhaps implies, the Paddlers Cove site has extensive shore

frontage. The site is roughly rectangular, within one long side, and one short side,

fronting directly on the Lake.

[61] Staff of HRM’s planning department recommended that Council approve a

development agreement for the seven-storey building on the Paddlers Cove site, but

Council rejected the proposal.

[62] Mr. Dickey, the HRM planner who was the planner of record for the

Monaco proposal, and who testified on Monaco’s behalf in the present proceeding, was

18

Document: 209348

initially the planner of record for the Paddlers Cove project, for the first year and a half in

which it was being considered by HRM. He was then re-assigned to other work.

[63] According to the evidence and submissions before the Board, the proposal

for development of Paddlers Cove also included (just as the YMCA proposal had) a

wind impact report, prepared by Dr. Wu’s firm, RWDI.

[64] As the Board has already noted, Council ultimately rejected the

recommendation of its planners, and refused the proposal.

[65] The evidence before the Board on this subject is incomplete, but, in his

report to Council on the Monaco proposal, Mr. Dickey attributed Council’s refusal of the

Paddlers Cove proposal to “compatibility concerns with nearby housing.” The Paddlers

Cove site is bounded on its eastern side by Lakeview Point Road, which contains low-

rise single-family and duplex residential buildings. The Board infers that Council’s

refusal was also related at least in part to the building’s seven-storey height, in proximity

to the lake. Among other things, the Board notes that, the year after Council rejected

the Paddlers Cove project, Council adopted the 35-foot height-restriction around Lake

Banook, which includes the Paddlers Cove site.

[66] If built, Monaco’s project for the subject property (only about 300 feet away,

at its nearest point, from the Paddlers Cove site) would be eight storeys higher than the

seven-storey building rejected by Council in 2004 for Paddlers Cove.

[67] In 2005, as the Board has just noted, HRM adopted a 35-foot height-

restriction area around Lake Banook (referred to in the planning documents as the

“Lake Banook Canoe Course Area”).

19

Document: 209348

[68] The 35-foot height-restriction area was referred to by Mr. Dickey, at least at

one point, as extending about 500 feet from the edge of the Lake, but his evidence

makes it clear that 500 feet is merely an approximation. The height-restriction area is

not regular in shape, its boundary being somewhat closer to the lake in some instances,

and farther away in others.

[69] As Mr. Dickey himself acknowledged, the subject property itself, at its

closest point, is less than 500 feet from the Lake. Nevertheless, it is outside, but abuts

the edge of, the height-restriction area. The irregular edge of the height-restriction area

can be seen as in effect zigzagging around the subject property. For example, as

noted, the subject property is on a corner of Prince Albert Road and Glenwood Avenue.

It is outside the height-restriction area, but properties right across the street, on both

Prince Albert and Glenwood, are inside the height-restriction area. Thus, the Robin’s

Donuts property, which is also on the corner of Prince Albert and Glenwood Avenue,

just as the subject property is, is inside the height-restriction area.

[70] As just noted, in 2004 HRM Council rejected the seven-storey Paddlers

Cove project which HRM’s planners had recommended. Two years later, in July of

2006, just the opposite occurred: Harbour East Community Council approved a 12-

storey apartment tower (known as “Twin Lakes”) which its planners said should be

rejected.

[71] The Twin Lakes site is significantly larger than the subject property. The

site is on Prince Albert Road, but, very roughly, 600 feet, or perhaps a little more, to the

northeast of Monaco’s property. The Twin Lakes site is farther from Lake Banook than

20

Document: 209348

is Monaco’s – the distance from Twin Lakes to Paddlers Cove, for example, would be

(again, very roughly) about 1,000 feet.

[72] The limited evidence before the Board respecting the site points to it

apparently being a form of what is often referred to as a “flag lot”: the entry point to the

project, a lane running at 90 degrees from Prince Albert Road, runs – again, according

to the evidence before the Board – along the side of the existing NAPA property, to the

rear of which the actual apartment tower is to be built. The building site would appear to

be more than 200 feet – again, very roughly – back from Prince Albert Road.

[73] The site extends in an easterly direction behind the NAPA property,

gradually rising into a moderately steep, and heavily wooded, area which lies below the

lands of the Alderney Elementary School, which are behind the edge of the ridge.

[74] While Twin Lakes has a 12-storey design, and Monaco has a 15-storey

design, it appears from the evidence that the height above sea level of the top of both

towers would be about the same. This is because Twin Lakes is on a rising slope,

which is higher above sea level than the Monaco site. The Board infers that, while the

height above sea level of the tops of both buildings would be the same, the relative

height of the Monaco building above the nearby lands surrounding it would be greater

than for Twin Lakes.

[75] If the Twin Lakes project is eventually built, the nearest part of the building

would be, very roughly, a little over 1,200 feet from Lake Banook, as opposed to less

than 500 feet for Monaco.

[76] The Twin Lakes approval overlapped the adoption by HRM of the Regional

Municipal Planning Strategy, or RMPS: Halifax Regional Council approved the RMPS

21

Document: 209348

on June 27, 2006; Harbour East Community Council approved the Twin Lakes project

on July 6, 2006. The RMPS did not, however, actually come into effect, until August 26,

2006, after review by the Provincial Government.

[77] As Mr. Heseltine and Ms. Young note in one of their two reports filed as

exhibits with the Board, some councillors, in voting in favour of Twin Lakes, made

specific reference to being conscious of the new RMPS. The RMPS provisions include

(as the Board notes below under “Analysis and Findings”) a target of increased

population growth in particular areas, including Dartmouth inside the Circumferential

Highway.

[78] Among those voting in favour of Twin Lakes was Councillor Gloria

McCluskey, who later voted against Monaco’s proposal. Councillor McCluskey, when

giving evidence at the Board hearing for the present proceeding compared the Monaco

proposal with Twin Lakes. She said that the latter’s site is located:

…further up Prince Albert Road, located some distance from the Road, located in under a hill; and if you were to visit that site you would see the difference.

[79] She also said that (unlike the present appeal, in which there was significant

opposition from residents living in the area), most people in the neighbourhood of Twin

Lakes had signed a petition indicating that they did not feel they would be affected by

the development. The Board notes, as well, that according to Mr. Dickey, no wind

assessment was required for the Twin Lakes project.

[80] According to the limited evidence before the Board, Twin Lakes

Development Limited, which obtained the development agreement for the Twin Lakes

site, is headed by Robert Yuille, who is also the owner of NAPA. The Twin Lakes

22

Document: 209348

project has not commenced; according to evidence before the Board, Mr. Yuille wishes

to sell the property and its associated development agreement.

[81] Around three years after HRM’s approval of the Twin Lakes project in

2007, communications were commencing between Monaco and HRM with respect to

the possible development of the subject property.

[82] It appears that, at least at one point, Monaco may also have owned 9

Glenwood Avenue. 9 Glenwood Avenue is separated from 5 Glenwood by 7 Glenwood,

which remains privately owned and occupied, i.e., not owned by Monaco. Accordingly,

Monaco restricted its building site to just two lots, being 307 Prince Albert Road and 5

Glenwood Avenue.

[83] According to Monaco, the distance from the edge of the “podium” (i.e., the

edge of the recessed underground parking garage concrete structure) to the boundary

of 7 Glenwood Avenue (which, again, remains in private ownership) would be 7.86 feet.

[84] By late September 2010, Alderney Surveys Limited had been engaged by

Monaco, and had prepared topographic plans of the site. Architectural planning sheets,

prepared by Monaco itself, followed in November of 2010.

[85] Monaco also engaged Ken O’Brien of Genivar Consultants Limited

Partnership to prepare a traffic report, entitled “traffic impact statement,” which he

submitted to Hugh Morrison, HRM’s Development Engineer, on December 3, 2010. It

foresaw no traffic problems for the subject project.

[86] In March of 2011, Greg O’Brien, of Genivar, wrote to Hugh Morrison, the

Development Engineer for HRM, concerning proposed driveway locations, and making

23

Document: 209348

reference to HRM By-Law S-300, which sets limits for the proximity of driveways to such

things as certain kinds of street intersections.

[87] On March 23, 2011, Mr. Maskine sent a letter to Mr. Dickey enclosing,

among other things, Monaco’s application for zoning amendment and a development

agreement.

[88] Mr. Maskine’s letter describes the project overall, making reference to the

overall high quality of the building itself. Mr. Dickey was (and remains) enthusiastic,

saying that:

…staff’s feeling was that this is a very attractive building and it would certainly seem to be one of the best that’s ever been proposed in Dartmouth.

[89] The Board notes that – somewhat surprisingly in a dispute of this type –

even some opponents of the project on its present site acknowledge that they see the

building itself as attractive. For example, Mr. Weatherhead (one of the Intervenors)

described it as “well designed.”

[90] The proposed building would have large balconies, high-quality finishes

inside and out, provision for a library, meeting rooms and a huge lobby. The

specifications also called for natural gas heating of the common elements, and heat

pumps for both heating and cooling in individual suites. Mr. Maskine was even said to

be considering having concierge service present at least during the day.

[91] Mr. Maskine suggested that most of the people who would become

residents in Monaco’s project would be seniors, semi-retirees, and urban professionals.

[92] Mr. Maskine also maintained that the proposal would involve a less

intensive use of the lands than could otherwise be permitted. This idea became one of

24

Document: 209348

Mr. Dickey’s principal themes, and was used by him in his presentations to Council, as

well as the subsequent evidence which he gave to the Board.

[93] On May 4, 2011, HRM held a public information meeting concerning

Monaco’s proposal. Those in attendance included Councillors Gloria McCluskey and

Bill Karsten. Four representatives of HRM Planning Staff were in attendance, including

Mr. Dickey. Mr. Maskine was in attendance on behalf of Monaco Investments. Eighty-

two members of the public attended as well. The meeting was in Alderney Elementary

School at 2 Penhorn Drive. As the Board has previously noted, the School is located

immediately behind, and above, the wooded and sloped site which Council had

previously approved for the Twin Lakes project.

[94] At that meeting, Mr. Dickey outlined the process involved in Monaco’s

application, and described what kinds of development would be possible as of right.

The lengthy minutes detail expressions of opposition, and of support, on the part of the

public with respect to the proposed development. Council Karsten told those present

that the public’s “concerns and comments” are “absolutely” taken into account by

Council in making its decision.

[95] In the intervening months between the information meeting in May of 2011

and Council’s rejection of the proposal in January of 2012, Mr. Dickey engaged in many

communications with residents, staff and Councillors of HRM, and, most especially,

representatives of Monaco.

[96] Not just in his evidence before the Board, but in other communications

while the Monaco project was being developed and reviewed within HRM, Mr. Dickey

25

Document: 209348

frequently noted that a hotel would not be subject to a development agreement

requirement, and could be built to an unlimited height on the subject property.

[97] On May 12, 2011, Mr. Maskine told Mr. Dickey that Monaco was looking at

the possibility of a hotel “as a backup” to its primary focus on the proposed apartment

building. He also referred to a further option, being a five-storey self-storage facility,

which does not appear to have been pursued in any significant way.

[98] Mr. Maskine told Mr. Dickey that Monaco had initiated discussions with

“hotel partners,” but, when Mr. Dickey inquired about who the “possible hotel brands”

were, it does not appear that Mr. Maskine replied.

[99] Sometime in the summer of 2011, Monaco did complete an application

form for a development permit for a hotel, and, in early September, Genivar produced a

concept plan (with associated landscaping, main floor, typical floor, and penthouse floor

plans). The plan shows the height of the building as 16 storeys (15 storeys plus a

penthouse, or one storey higher than the project which is the subject of this

proceeding). Unlike the hotel application, the detailed plans produced for Monaco’s

proposed 15-storey apartment building, were produced by Monaco itself.

[100] HRM engaged in discussions with Monaco about Monaco’s possible

funding for public art (referred to below), and various options in relation to traffic were

also reviewed (including the location of driveways on Glenwood, and the possibility of

traffic lights at Prince Albert and Glenwood).

[101] On June 15, 2011, two of Monaco’s experts (Dr. Wu and Mr. LeBlanc)

presented reports to Monaco which they subsequently amended after review by their

client, after which the amended reports were filed in evidence with the Board.

26

Document: 209348

[102] On June 15, 2011, Dr. Wu submitted a report to Mr. Maskine entitled “Wind

Assessment.” Nothing in the report refers to it as a draft. However, on June 17th, Mr.

Maskine sent Mr. Dickey a copy of Dr. Wu’s report, referring to it as a “draft.”

[103] On June 22nd, Dr. Wu resubmitted his report. It is again entitled “Wind

Assessment” and makes no reference to the version of June 15th. It does contain an

additional sentence.

[104] The June 15th report had included the statement:

Based on the distance between the proposed building and the canoe course, as well as our previous wind tunnel studies for other projects in the area, it is our opinion that the potential effects on the wind conditions over the canoe course on Lake Banook are negligible.

In the June 22, 2011, version of his report, Dr. Wu had added the following sentence to

the above-quoted paragraph:

As such, there are no negative consequences resulting from the building that could affect the lake and no further investigation is warranted.

[105] The Board concluded from Dr. Wu’s evidence that he had added the

additional sentence after consulting with his clients. Under cross examination before

the Board, Dr. Wu said he added the additional sentence to provide additional clarity to

the meaning of the word “negligible.” The subject of wind will be discussed further

under “Analysis and Findings.”

[106] On June 15th (the same day Dr. Wu submitted to Mr. Maskine the first

version of his report) Mr. LeBlanc, of Ekistics Planning & Design, gave Mr. Maskine a

document entitled “Shade Study for Prince Albert Road Development.” The June 15th

report bears the signature of Mr. LeBlanc; as with Dr. Wu’s June 15th report, it makes no

reference to its being a draft.

27

Document: 209348

[107] On June 17, 2011, just as he had with Dr. Wu’s report, Mr. Maskine sent

Mr. Dickey a copy of Mr. LeBlanc’s shade report, once again referring to it as a “draft.”

[108] On June 20, 2011, Mr. LeBlanc submitted his shade study to Mr. Maskine

again. As with Dr. Wu’s revised report, Mr. LeBlanc’s June 20th report makes no

reference to it being a revision of the earlier June 15th version.

[109] Dr. Wu had added an extra sentence to his report after its review by Mr.

Maskine and Mr. Dickey; Mr. LeBlanc added an extra section. Entitled “Shade

Potential,” this added section also became the subject of cross examination of him by

Counsel for HRM in the course of the Board hearing. The Board will return to this point

under “Analysis and Findings.”

[110] The positions taken by representatives of the Appellant with respect to the

most advantageous rezoning strategies for the subject property did not at times appear

to be entirely consistent. As previously noted, Monaco originally applied for rezoning of

the Prince Albert Road lot (the funeral home property) from C-2 to R-4. In the present

proceeding before the Board, Monaco maintained that position.

[111] On July 25, 2011, however, Nick Price of Genivar, writing on behalf of

Monaco, told Mr. Dickey that he wanted the zoning for the funeral home part of the site

changed from C-2 to G-C (General Commercial). On October 6, 2011, Mr. Dickey

recommended that Monaco stay with its original idea of requesting a rezoning to R-4,

rather than seeking G-C Zoning. In their March 29, 2012, report, Mr. Heseltine and Ms.

Young made the observation that rezoning the C-2 property “was not necessary.” The

Board notes these variations merely for clarification; it does not see them as relevant to

the outcome of this proceeding.

28

Document: 209348

[112] During the summer, there was increasing activity by individual residents, as

well as by the Banook Area Residents’ Association, in opposition to the proposed

development. Concerns related to a range of items, including proximity to Lake

Banook, effect of increased traffic, the proximity to the existing residences extending up

Glenwood and elsewhere, etc.

[113] On September 30, 2011, Ken O’Brien of Genivar produced traffic

generation projections which showed his opinion of the different levels of traffic that

might be expected from different kinds of uses on the subject property.

[114] On the same day, HRM issued a development permit for the construction

of the 16-storey hotel.

[115] A few days later, on October 5th, Mr. Dickey wrote to Mr. Maskine asking

for some more information that he could use for discussions within HRM, about Monaco

having a hotel as a “backup plan.” He suggested that if Mr. Maskine:

…were able to provide particulars, and if the project appeared feasible, that would be an important piece of information for internal discussions. Specifically, might a mid/high-rise hotel of similar scale with internal restaurant be feasible in today’s market.

In response, Mr. Maskine provided some general observations about the kind of hotel

which might be feasible for the subject property. His description included a reference to

a two-storey podium, with a 14 to 16-storey tower on top of it.

[116] When questions were asked as to the process Council would use in

dealing with Monaco’s application for its apartment tower, Mr. Dickey explained (on

October 5, 2011, in an E-mail to a person whose name was redacted) the two separate

steps which he saw as inherent in the process. The first related to the application to

rezone, and the second to the development agreement:

The need for council to make 2 separate decisions is procedural and necessitated by provincial planning legislation. Although a council can consider different types of

29

Document: 209348

applications concurrently it cannot approve a development agreement until the required zone is in place and the appeal period for the rezoning has expired or any appeals have been dismissed. This standard process has been used for 15 years.

The two-step process described by Mr. Dickey will be reviewed further by the Board in

its discussion of Issue 2, below.

[117] A surprising proportion of communications between HRM and Mr. Maskine

related to HRM staff seeking monetary support from Monaco for “public art” (an already-

existing example being a stylized metal canoe near Lake Banook) and public parklands.

In 2008, HRM staff had proposed a public art policy which, in effect, imposed a fee of

1% of total construction costs on private developments in excess of 25,000 square feet.

This would be used to pay for public art that would be installed on private lands and

would remain the responsibility of the owner.

[118] By May of 2011, Mr. Dickey had informed Mr. Maskine of HRM’s

requirement that Monaco provide a “community benefit” as part of the proposal. Mr.

Maskine agreed to $50,000 in May, 2011, but Mr. Dickey informed staff in the “culture

and heritage section” of HRM’s bureaucracy that he thought Mr. Maskine would be

“willing to go higher”; in another communication he expressed the hope that staff would

be able to “extract a greater amount than $50,000.”

[119] A few days later, on October 3rd, Mr. Dickey told Mr. Price of Genivar that

the “minimum” that HRM would expect Monaco to pay would be $100,000. It seems the

payment from Monaco could go to public art, or park improvements, or both. Mr. Dickey

suggested the development agreement could assign a split between the two of, for

example, $60,000 for public art and $40,000 for park improvements, which might be tied

in with the nearby Trans Canada Trail.

30

Document: 209348

[120] On October 5, 2011, another HRM staff member reported to Mr. Dickey

that:

Tony Maskine is willing to consider completion of our TransCanada Trail and area of Grahams Grove…this is very good news…This will also reduce pressure on our HRM capital budget designated for trails construction.

[121] By October 11th, Mr. Dickey’s discussions with Monaco had led to its

agreeing to contribute $150,000, once 80% of the condominium units had been sold.

This commitment was communicated to Mr. Dickey by Mr. Price, Genivar’s Senior

Planner.

[122] Mr. Dickey was pleased, saying that the only outstanding issue for him in

the development agreement was to:

…find a way to adequately capture Tony’s [Mr. Maskine’s] generous commitment to community amenities.

[123] The same autumn that the Monaco proposal for Prince Albert Road was

being discussed within HRM, other applications for high-rise structures elsewhere in

Dartmouth were being considered – one for the Mic Mac Mall area, and another for the

Sobeys Group’s proposed redevelopment of the former Penhorn Shopping Mall.

[124] On November 3, 2011, Mr. Dickey forwarded to Mr. Price, of Genivar, and

Mr. Maskine, a draft development agreement for their review and comment. After

noting that the “vast majority” of the clauses were standard ones, he referred to other

topics, one of which was a park improvement contribution of $133,400.

[125] On December 15, 2011, Mr. Dickey prepared a report, to be submitted to

Halifax East Community Council. After approval by Austin French, the Manager of

Planning Services, it was submitted to Council by Phil Townsend, Director of Planning

and Infrastructure. The report makes reference to a number of different concepts,

31

Document: 209348

including, in relation to the re-zoning application: bulk (massing); scale (height); traffic;

potential for wind impact. In relation to the development agreement, the report refers to

site design; architecture; height; bulk (massing); potential wind impact; shadows;

density; landscaping and buffering; and traffic.

[126] Mr. Dickey’s report recommended that Harbour East Community Council:

…approve the proposed rezoning… [and]… Upon the expiry of the appeal period for the rezoning, approve a development agreement for a 15-storey residential building…

In his evidence to the Board, Mr. Lloyd characterized the Dickey report as

“aggressively” supporting Monaco’s applications; Mr. Heseltine and Ms. Young used the

word “strongly” instead of aggressively.

[127] However, Mr. Dickey’s report to Council (which was used by Council during

its January 17, 2012, meeting) also said that one of the options Council had in dealing

with Monaco’s application was that:

Council may choose to refuse the rezoning. In the view of the Board, a reasonable inference (and perhaps the only reasonable

inference) from this statement is that, if Council decided to refuse Monaco’s application,

its decision would reasonably carry out the intent of the MPS (as is discussed at length

in this decision in both Issue 1 and Issue 3, this question of consistency with the MPS is

the fundamental test on appeals of the type found in the present proceeding).

[128] He expressed the same idea (that Council could refuse the rezoning) in the

public information meeting of May 4, 2011, which was attended by two councillors. He

expressed it a third time in making a PowerPoint presentation to Council on January

17th.

32

Document: 209348

[129] When, however, Mr. Dickey testified before the Board in the present

proceeding, he contradicted the opinion he had expressed on the three previous

occasions. When asked by Counsel for Monaco whether, in his opinion, a refusal by

Council of the Monaco application would have been consistent with the MPS, he

replied:

In this case, no, I don’t think that that can be seen to be the case. [130] No supplementary report was filed with the Board by him, or on his behalf,

stating that he had changed his earlier opinion, and why. In making this observation,

the Board notes Mr. Dickey’s peculiar status in this proceeding as an employee of HRM

who was called by an opposing party to given evidence against HRM’s position.

[131] In noting the inconsistency between Mr. Dickey’s two positions, the Board

does not wish to imply that it was not open to him to change his evidence if he thought it

appropriate, just as it would be for anyone else. In discussing his new, and

contradictory, opinion, in the course of his testimony in this proceeding, however, the

Board did not see Mr. Dickey as referring to any significant matters of which he had not

previously been aware.

[132] On January 17, 2012, Harbour East Community Council met to consider

whether to give first reading to the proposal. If that was granted, other steps would

occur subsequently, including a public hearing.

[133] The meeting is described both in the minutes of Council, as is common in

evidence in a planning appeal, and – unusually – in an actual transcript of the Council

meeting. The transcript was prepared at Monaco’s request, for the purposes of the

Board hearing. The Board notes, simply as a minor clarification, that the transcript

refers to Council’s meeting as having occurred on January 31, 2012; all other

33

Document: 209348

documentation in relation to the meeting, however, including Monaco’s notice of appeal,

refers to the meeting as having occurred on January 17th.

[134] Mr. Dickey presented his report to Council, illustrating it with a PowerPoint

presentation. Devoting a slide to the developments possible in a C-2 Zone, he told

Council that, in such a zone an owner could, as of right, put up a building related to:

Commercial uses such as retail, service, office, food/liquor establishments, & automotive-related uses: • No height limit on buildings, • Minimal setback requirements/lot coverage limits, • No architectural guidelines or design controls, • Permit issued for 16 storey hotel. Also allows residential uses such as group homes, townhouses, & nursing homes.

The Board notes in passing that it appears from the various submissions before the

Board that Mr. Dickey’s statement that there is “no height limit on buildings” is correct in

relation to hotels. However, in relation to certain other structures, such as office

buildings, there are in fact certain height restrictions which do apply, but are not

mentioned, in the PowerPoint presentation.

[135] Councillor McCluskey, in commenting during the Council meeting on Mr.

Dickey’s presentation, referred to DMPS Policy IP-1(c), and the question of the Monaco

project’s compatibility and consistency with adjacent uses. Referring to his report, she

told him:

You didn’t mention that anywhere, compatibility.

[136] In replying to Councillor McCluskey, Mr. Dickey did not address the

omission of compatibility from the report, but instead referred her to the “very broad

range of uses and the scale, height and massing of uses” which could occur if

development were to proceed pursuant to the existing C-2 Zoning on the funeral home

property.

34

Document: 209348

[137] Councillor McCluskey repeated her question to Mr. Dickey. She was

asking, she told him, not what might be built as of right commercially, but about the

compatibility of Monaco’s proposed building with the surrounding area. She said that

she was:

…talking about this building; we’re talking about this one, and I’m saying you didn’t mention compatibility…

[138] This time, Mr. Dickey’s answer acknowledged that compatibility had not

been specifically mentioned in the context of Monaco’s proposed building, but he

asserted that it had been “indirectly captured,” saying that, given the “other things that

could happen” on the subject property, Monaco’s project was “relatively compatible.”

[139] Ms. McCluskey also referred to the 35-foot height-restriction area around

Lake Banook, and commented that it was her understanding that in setting the

boundary of the 35-foot height-restriction area in 2005:

…there was…no real study done to see if that was the right area, if that boundary was right. You know, we just drew that line and that was it.

Mr. Dickey replied, saying, among other things, that Canoe/Kayak Canada had been:

…heavily involved because of development proposals on the United Gulf site on the other side of the Lake, and at the end of the day there seemed to be clear consensus that this line was appropriate.

Ms. McCluskey replied:

But there was nothing determined as to the height of the building. I mean, the one on the Paddlers Cove that was turned down was 8-storeys, and that's what brought about the 35-foot, but there was nothing here to determine whether that same 8-storey would be here, and some people felt that, or it would be 15. We didn't – we never really did a study, did we, Mitch, to show that a 15-storey building would not bring any wind?

Mr. Dickey replied:

No, no, that's true, nor was there a study to, you know, prove that there would be impacts from a 50-foot building, you know, within the 35-foot height limit.

35

Document: 209348

[140] In the course of the discussion during the January 17th meeting, it was

noted more than once that the business before Council that night was not a public

hearing on the Monaco proposal, which was to occur later; it was suggested that,

according to Council’s rules, debate was not to occur on first reading.

[141] Councillor McCluskey persisted, arguing that if the vote ended in the

motion being turned down then Council must state its reason for refusal. Ultimately, she

did state for the record (and prior to the vote) the reasons that she intended to vote

against first reading (and thus against the further consideration of Monaco’s proposed

development). She said:

…that it is not compatible with the neighbourhood, it is surrounded by single-family homes all along the Lake, the shadow effect that it will have on properties there, the traffic that will be generated and the wind that it could create.

[142] Among other things, she also referred to her uncertainty about the

implications of the 35-foot height limit. She said that when it was set there had been:

…no talk of how high a building could be before it could affect the Lake. Nobody knows. There was no talk of that.

[143] Councillor McCluskey’s stated reasons for voting against the Monaco

project were the subject of repeated comment by Monaco in the Board’s proceedings.

As the Board has previously noted, Counsel for Monaco obtained a transcript of her

remarks and referred to them subsequently in written submissions.

[144] Councillor McCluskey spoke at an evening session held by the Board in

relation to the Monaco appeal. Her remarks to the Board included the following

statement, in which she referred to local opposition to the project, of which she was

aware at the time of the January 17th vote:

I will begin by saying that I voted against the Prince Albert Development proceeding to the next step, the public hearing. My reasoning is that I was satisfied that we

36

Document: 209348

heard from the public who would be directly affected by a petition of some 300 names, emails, phone calls, and many face-to-face conversations.

Counsel for the Appellant suggested that Councillor McCluskey’s actions on January

17th could be characterized as having taken a “head count” and then voting accordingly.

[145] The Board notes, however, that Ms. McCluskey also made reference to her

compatibility concerns once again, referring to:

…residents who will live with this development, which is certainly not compatible.

[146] At the January 17th Council meeting, after Ms. McCluskey had concluded

her comments to her colleagues on Community Council, the Chair once again stated his

view that Council could only debate:

…whether to give notice of motion. Members may not debate the proposed rezonings or development agreement.

[147] When the vote was finally taken, on a motion to give Monaco’s application

first reading, it was defeated. The defeat of the motion meant, in effect, the defeat of

Monaco’s application.

[148] The Board discusses the details of the motion itself at “Analysis and

Findings” below. The vote was actually a tie vote, with three councillors voting in favour

of the motion (being Deputy Mayor Karsten, and Councillors Fisher and Nicol), and

three councillors voting against (Councillors Barkhouse, McCluskey and Smith). Under

Council’s rules, a tie vote is a “no” vote.

[149] One of the consequences of Council defeating the application at first

reading was that no public hearing, or subsequent Council meeting, occurred.

Accordingly – apart from Councillor McCluskey’s comments, and Mr. Dickey’s

PowerPoint presentation – there had been no detailed presentation, and discussion, of

the proposed project. People other than Councillor McCluskey and Mr. Dickey –

37

Document: 209348

whether they were members of Council of not – did not have the opportunity to express

support for, or opposition to, the project, or to learn more about the positions of others.

[150] After the motion to give first reading was defeated, and the Chair opened

the floor to hear commentary from the public, there was spirited criticism from some

who saw Council as having behaved unfairly.

[151] Mr. Maskine asked Council to reconsider its refusal to grant first reading.

Heather Miller, who had worked with Mr. Maskine for two years on the project,

expressed her distress about what she characterized as:

…the lack of a democratic process…

[152] Likewise, Tom Campbell asserted that:

…whether or not this is a good development or a bad development, this process here has eliminated the public from having their say at a public meeting…I think Council should reconsider and allow it, the democratic process of a public meeting where anyone who wishes to speak can, for or against, and then Council can make an educated decision…

[153] Others spoke in support of Council’s decision, including one person (Nancy

McInnis-Leek), who ultimately became an intervenor in the present proceeding.

[154] On January 19, 2012, HRM sent a letter to Monaco refusing its application.

HRM gave no reason for the rejection in its letter, although the Halifax Charter requires

that reasons be given for the refusal. HRM’s letter did, however, inform Monaco (as

required by the Halifax Charter) of the right to appeal within 14 days. The detailed

content of HRM’s letter is reviewed in the Board’s discussion of Issue 2 in the “Analysis

and Findings” part.

[155] On February 2, 2012, Mr. Rogers, as Counsel for Monaco, filed a Notice of

Appeal with the Board. The following grounds were stated in the Notice:

The Harbour East Community Council's decision does not reasonably carry out the intent of the municipal planning strategy for the following reasons:

38

Document: 209348

1. It failed to give adequate or any consideration to the policies contained in the Regional Municipal Planning Strategy, and the Dartmouth Municipal Planning Strategy and to the Dartmouth Land Use By-law; 2. It is based on irrelevant considerations in that it was made for reasons other than those set out in the Regional Municipal Planning Strategy, the Dartmouth Land Use By-law and the Dartmouth Planning Strategy, particularly in light of the fact that no reasons were given; 3. Such further and other grounds as may appear.

4.1 Site Visit

[156] The Board conducted a site visit after the conclusion of the hearing on the

merits. The Board indicated to counsel during the hearing that they could, if they

wished, accompany the Board during the visit but they need not feel obliged to do so.

Mr. Weatherhead, Counsel for the Intervenors, wished to do so, and with the consent of

other Counsel, was the only person accompanying the Board during the site visit.

[157] The Board’s site visit involved, variously, driving and walking, to and in,

areas in Dartmouth referred to in the evidence, including:

• the subject property on the corner of Prince Albert Road and Glenwood Avenue,

and the housing extending from the subject property along the length of

Glenwood Avenue;

• the Robin’s Donuts site on Glenwood Avenue and Prince Albert Road;

• the former service station site on the east site of Prince Albert Road;

• the Banook Shores condominium facing across Prince Albert Road to the Lake;

• the Twin Lakes site,

• the NAPA property;

• Prince Albert Road, running from the south at its intersection with Ochterloney

Street, near Sullivan’s Pond, along its entire length to its northern end near the

Superstore;

39

Document: 209348

• the Alderney School site, which the Board reached via the streets leading from

the northern end of Prince Albert Road;

• the two motels off Prince Albert near the Superstore;

• Celtic Drive, which runs up from Prince Albert Road, and is parallel to Glenwood,

but one street south of it;

• Cranston Avenue (where Mr. Lloyd lives, which runs parallel to, and one street

south of, Celtic);

• the Superstore site;

• Graham’s Grove Park;

• the Paddlers Cove site;

• the small C-2 zoned properties on Prince Albert Road which are more or less

across from the subject property;

• Ashton Lane, where the Intervenor, Mr. Weatherhead, lives;

• Lakeview Point Road, which is about two hundred feet from the subject property,

and runs roughly parallel to the Paddlers Cove site, and contains single-family,

and other low density housing, on and near the waterfront of Lake Banook;

• moving west and south from the west side of Lake Banook, to 55 Crichton

Avenue and 1 Oak Street, the 13-storey and 15-storey buildings to the

southwest of Sullivan’s Pond, referred to in the Heseltine and Young report;

• finally, the northwest corner of Lake Banook with its existing condominium

buildings, and the as yet undeveloped YMCA site.

40

Document: 209348

5.0 ANALYSIS AND FINDINGS 5.1 Preliminary Hearings

[158] The hearing on the merits in this matter was preceded by several

preliminary hearings. The matters raised in these were wide ranging: requests for

intervenor status; a request by the Appellant Monaco to require HRM to (among other

things) file its evidence first, rather than the Appellant, and to provide an explanation of

its actions; an application by HRM to restrict the subject of the appeal to that of a

rezoning only (rather than of a rezoning and of a development agreement); a motion by

the Intervenor, Mr. Weatherhead, challenging Monaco’s status to engage in the original

application process with HRM, and (implicitly at least) in the appeal process to the

Board thereafter; a motion by Monaco to exclude certain evidence and witnesses; an

application by HRM for an extended adjournment of the hearing on the merits.

[159] The Board dealt with most of these through oral decisions which are

summarized in letters of direction from the Chief Clerk. The Board’s reasons for each of

its decisions are principally found in the recorded record.

[160] In one instance, the Board issued a written decision: Monaco Investments

Partnership v. HRM, 2012 NSUARB 38.

5.2 Municipal Government Act and Halifax Regional Municipality Charter [161] Appeals of this type were formerly governed by the provisions of the

Municipal Government Act, everywhere in the Province. In 2008, appeals in HRM

ceased to be subject to the Municipal Government Act, and came under the jurisdiction

of the new Halifax Regional Municipality Charter.

[162] Many provisions in the Halifax Charter correspond to provisions which are

found in the Municipal Government Act. The provisions of the latter act have been

41

Document: 209348

explored, in earlier decisions of the Court of Appeal, and the Board considers the

conclusions in those decisions to be applicable to the Halifax Charter.

5.3 Usage of Terms: “MPS,” “DMPS,” “RMPS” [163] This proceeding is subject to Regional Municipal Planning Strategy, RMPS,

and to the Dartmouth Municipal Planning Strategy, DMPS, in addition to the Halifax

Charter. In some instances, for the sake of simplicity and clarity, the Board will simply

refer to the “MPS,” which, depending upon the context, may refer to either or both of the

RMPS and DMPS.

5.4 Burden of Proof [164] As the Board noted earlier in this decision, the Board dismissed an

application by the Appellant, Monaco, to reverse the order of presentation of evidence,

and – in effect, as the Board saw it – the burden of proof.

[165] In this proceeding, as in appeals generally, the Board considered that the

burden of proof rested with the Appellant.

5.5 Standard of Proof [166] The standard of proof which the Board has applied in determining facts is

that of the balance of probability.

5.6 Applicable Principles of Statutory Interpretation [167] The Board considers that the liberal and purposive approach to statutory

interpretation applies in this proceeding. See, for example: Heritage Trust of Nova

Scotia v. Nova Scotia (Utility and Review Board), [1994] N.S.J. 50 (“Heritage Trust

1994”); MacDonald v. Halifax Investments, (1997) 162 N.S.R. (2d) 214 (SC).

5.7 Board’s Fact Finding Role

42

Document: 209348

[168] In Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board),

2006 NSCA 115, the Court of Appeal stated that the Board must:

…embark upon a thorough fact‑finding mission to determine the exact nature of the proposal in the context of the applicable MPS and corresponding by‑laws…

[para 51, per MacDonald, C.J.N.S.]

5.8 Municipal Councils as the “Primary Authority” for Planning

[169] The Halifax Charter specifically identifies HRM as the “primary authority”

for planning in the Municipality:

208 The purpose of this Part is to … (b) enable the Municipality to assume the primary authority for planning within its jurisdiction, consistent with its urban or rural character, through the adoption of municipal planning strategies and land-use by-laws consistent with interests and regulations of the Province;

[170] The concept of municipal council being the primary authority for planning is

not a new one. The Municipal Government Act likewise identifies municipal councils as

the primary authority. This status of municipal councils was underscored in Midtown:

[46] I reject the opponents' assertion that the Board owed no deference to Council despite the fact that the Board conducted its own full scale hearing. In fact, I believe Council and not the Board to be the primary decision maker when it comes to this type of planning issue. Let me briefly elaborate.

[47] Despite the Board's detailed hearing, it must be remembered that members of Council are elected and accountable to the citizens of HRM. As such they exercise discretion and are accordingly entitled to deference. As earlier noted, one purpose of the MGA is to provide municipalities with autonomy when it comes to planning strategies and development. This decision fell within Council's discretion, provided it reasonably reflected the intent of the MPS. As elected officials, their decisions must be respected. This court has said as much on several occasions. [per MacDonald, C.J.N.S.]

[171] Likewise, the Planning Act (the predecessor of the Municipal Government

Act) had a similar provision, the Court of Appeal stating (in “Heritage Trust 1994”) that

“the intent” of the Act was:

43

Document: 209348

…to make municipalities primarily responsible for planning; that purpose could be frustrated if the municipalities are not accorded the necessary latitude in planning decisions...

5.9 Board’s Limited Authority in Planning Appeals

[172] In keeping with the concept of municipal councils being the primary

authority, s. 265(1) (b) of the Halifax Charter limits the grounds for an appeal to the

Board of a decision by Council in relation to proposed rezonings or development

agreements. The Halifax Charter states:

265 (1) An aggrieved person or an applicant may only appeal … (a) an amendment or refusal to amend a land-use by-law, on the grounds that the decision of the Council does not reasonably carry out the intent of the municipal planning strategy;

(b) the approval or refusal of a development agreement or the approval of an amendment to a development agreement, on the grounds that the decision of the Council does not reasonably carry out the intent of the municipal planning strategy;

[173] The powers of the Board are similarly limited on such an appeal:

267 (2) The Board may not allow an appeal unless it determines that the decision of the Council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land-use by-law or the subdivision by-law. 2008, c. 39, s. 267.

[174] Thus, the Board must not interfere with a decision by Council in relation to

a proposed rezoning, or development agreement, unless it determines that the decision

does not reasonably carry out the intent of the MPS. The burden of proof is on the

Appellant to establish this.

[175] If an appellant can show, on the balance of probabilities that a decision by

Council does not reasonably carry out the intent of the MPS, the Board must reverse

Council's decision to enter into the development agreement. If, however, the appellant

fails to meet this standard of proof, it is the Board's duty to defer to Council's decision.

On this point, see Heritage Trust 1994:

44

Document: 209348

[99] In reviewing a decision of the municipal council to enter into a development agreement the Board, by reason of s. 78(6) of the Planning Act, cannot interfere with the decision if it is reasonably consistent with the intent of the municipal planning strategy. A plan is the framework within which municipal councils make decisions. The Board is reviewing a particular decision; it does not interpret the relevant policies or bylaws in a vacuum. In my opinion the proper approach of the Board to the interpretation of planning policies is to ascertain if the municipal council interpreted and applied the policies in a manner that the language of the policies can reasonably bear. This court, on an appeal from a decision of the Board for alleged errors of interpretation, should apply the same test. This is implicit in the scheme of the Planning Act and the review process established for appeals from decisions of municipal councils respecting development agreements. There may be more than one meaning that a policy is reasonably capable of bearing. This is such a case. In my opinion the Planning Act dictates that a pragmatic approach, rather than a strict literal approach to interpretation, is the correct approach. The Board should not be confined to looking at the words of the Policy in isolation but should consider the scheme of the relevant legislation and policies that impact on the decision… This approach to interpretation is consistent with the intent of the Planning Act to make municipalities primarily responsible for planning; that purpose could be frustrated if the municipalities are not accorded the necessary latitude in planning decisions... [100] Ascertaining the intent of a municipal planning strategy is inherently a very difficult task. Presumably that is why the Legislature limited the scope of the Board's review of enacting s. 78(6) of the Planning Act. The various policies set out in the Plan must be interpreted as part of the whole Plan. The Board, in its interpretation of various policies, must be guided, of course by the words used in the policies. The words ought to be given a liberal and purposive interpretation rather than a restrictive literal interpretation because the policies are intended to provide a framework in which development decisions are to be made. The Plan must be made to work. A narrow legalistic approach to the meaning of policies would not be consistent with the overall objective of the municipal planning strategy. The Planning Act and the policies which permit developments by agreement that do not comply with all the policies and by-laws of a municipality are recognition that municipal councils must have the scope for decision-making so long as the decisions are reasonably consistent with the intent of the plan. Very often ascertaining the intent of a policy can be achieved by considering the problem that policy was intended to resolve.

[176] The Court of Appeal in Heritage Trust further held, in relation to

“development by contract,” i.e., development agreements:

[163] The Planning Act imposes on municipalities the primary responsibility in planning matters. The Act gives the municipal council the authority to enter into development by contract which permits developments that do not comply with all the municipal bylaws (s. 55 of the Act). In keeping with the intent that municipalities have primary responsibility in planning matters, the Legislature has permitted only a limited appeal from their decisions (s. 78 of the Act). Planning policies address a multitude of planning considerations some of which are in conflict. Most striking are those that relate to economics versus heritage preservation. Planning decisions often involve compromises and choices between competing policies. Such decisions are best left to elected representatives who have the responsibility to weigh the competing interests and factors that impact on such decision… Neither the Board nor this court should embark on their review duties in a narrow legalistic manner as that would be contrary to the intent of the planning legislation.

45

Document: 209348

Policies are to be interpreted reasonably so as to give effect to their intent; there is not necessarily one correct interpretation. This is implicit in the scheme of the Planning Act and in particular in the limitation on the Board’s power to interfere with a decision of a municipal council to enter into development agreements…

[177] In Archibald v. Nova Scotia, 2010 NSCA 27, the Nova Scotia Court of

Appeal stated a summary of planning law. Speaking for the Court of Appeal, Fichaud,

J.A., said:

[24] …I will summarize my view of the applicable principles: (1) The Board usually is the first tribunal to hear sworn testimony with cross-examination respecting the proposal. The Board should undertake a thorough factual analysis to determine the nature of the proposal in the context of the MPS and any applicable land use by-law. (2) The appellant to the Board bears the onus to prove the facts that establish, on a balance of probabilities that the Council’s decision does not reasonably carry out the intent of the MPS. (3) The premise, stated in s. 190(b) of the MGA, for the formulation and application of planning policies is that the municipality be the primary steward of planning, through municipal planning strategies and land use by-laws. (4) The Board’s role is to decide an appeal from the Council’s decision. So the Board should not just launch its own detached planning analysis that disregards the Council's view. Rather, the Board should address the Council's conclusion and reasons and ask whether the Council’s decision does or does not reasonably carry out the intent of the MPS. Later (¶ 30) I will elaborate on the treatment of the Council’s reasons. (5) There may be more than one conclusion that reasonably carries out the intent of the MPS. If so, the consistency of the proposed development with the MPS does not automatically establish the converse proposition, that the Council’s refusal is inconsistent with the MPS. (6) The Board should not interpret the MPS formalistically, but pragmatically and purposively, to make the MPS work as a whole. From this vantage, the Board should gather the MPS’ intent on the relevant issue, then determine whether the Council’s decision reasonably carries out that intent. (7) When planning perspectives in the MPS intersect, the elected and democratically accountable Council may be expected to make a value judgment. Accordingly, barring an error of fact or principle, the Board should defer to the Council's compromises of conflicting intentions in the MPS and to the Council’s choices on question begging terms such as "appropriate" development or "undue" impact. By this, I do not suggest that the Board should apply a different standard of review for such matters. The Board’s statutory mandate remains to determine whether the Council’s decision reasonably carries out the intent of the MPS. But the intent of the MPS may be that the Council, and nobody else, choose between conflicting policies that appear in the MPS. This deference to Council’s difficult choices between conflicting policies is not a license for Council to make ad hoc decisions unguided by principle. As Justice Cromwell said, the

46

Document: 209348

“purpose of the MPS is not to confer authority on Council but to provide policy guidance on how Council’s authority should be exercised” (Lewis v. North West Community Council of HRM, 2001 NSCA 98 (CanLII), 2001 NSCA 98, ¶ 19). So, if the MPS’ intent is ascertainable, there is no deep shade for Council to illuminate, and the Board is unconstrained in determining whether the Council’s decision reasonably bears that intent. (8) The intent of the MPS is ascertained primarily from the wording of the written strategy. The search for intent also may be assisted by the enabling legislation that defines the municipality’s mandate in the formulation of planning strategy. For instance ss. 219(1) and (3) of the MGA direct the municipality to adopt a land use by-law "to carry out the intent of the municipal planning strategy" at "the same time" as the municipality adopts the MPS. The reflexivity between the MPS and a concurrently adopted land use by-law means the contemporaneous land use by-law may assist the Board to deduce the intent of the MPS. A land use by-law enacted after the MPS may offer little to the interpretation of the MPS.

[178] The Board now turns to the provisions of HRM’s MPS.

5.10 Issue 1: Rezoning Has the Appellant shown, on the balance of probabilities, that Harbour East Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy? For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses Monaco’s appeal with respect to the rezoning applications.

5.10.1 Irrelevance of Possible Future Changes to the MPS

[179] The Board will first note that Counsel for the Intervenors, at one stage,

pointed to possible future changes in the MPS which would limit height to eight storeys

in the area, and making reference to a possible Council vote related to the topic in the

fall of 2012. The Board considers that only those provisions which have actually been

enacted in the MPS are of any relevance, and has given no weight whatever to any

reference or suggestion that further height restrictions are, or may be, contemplated as

amendments to the MPS.

47

Document: 209348

5.10.2 Rezoning Topics

[180] As the Board has already recounted in the “Facts” section above, this

proceeding involves the proposed rezoning of two adjoining lots, and a proposed

development agreement in relation to those lots.

[181] In the present part of the decision, the Board will focus upon the proposed

rezoning of the two adjoining lots: Monaco wants the funeral home property to be

rezoned from C-2, and the abutting house property from R-2, both to R-4.

[182] The Board’s discussion of the rezoning matter includes the following topics:

• the MPS hierarchy;

• DMPS Policy IP-1(c);

• wind;

• traffic;

• shade.

Also included, at the conclusion of the discussion of the above topics, are sections

relating to the following two additional topics:

• population densification;

• opportunity sites.

In the view of the Board, many parts of the discussion relating to zoning are likewise

relevant to the development agreement issue.

[183] The Board will in this part review portions of the MPS, along with various

references in the evidence and factual findings, in particular reference to the rezoning

applications.

[184] Some of the MPS provisions to which the Board will refer apply to zoning

only, while other provisions apply to both rezoning and development agreement

applications. As certain concepts (particularly what the Board will refer to loosely as

48

Document: 209348

“compatibility”) are common, to one degree or another, to the provisions dealing with

both rezoning and development agreements, the Board will also sometimes, for clarity,

make reference to provisions which relate to the development agreement only.

5.10.3 A Hierarchy of Municipal Planning Strategies: the Regional Municipal Planning Strategy (RMPS) and the Dartmouth Municipal Planning Strategy (DMPS)

[185] Unlike most planning appeals, the subject property is not governed by a

single MPS.

[186] HRM was created by the Province from a number of existing municipalities,

including the former City of Dartmouth, in which the subject property was located. The

subject property is governed by two principal HRM planning documents: the Regional

Municipal Planning Strategy and the Dartmouth Municipal Planning Strategy.

[187] Of the two, the DMPS was the first to be adopted, in 1978, when the City of

Dartmouth was still in existence. It has been amended many times since.

[188] The RMPS was not adopted until 2006.

[189] Mr. Heseltine and Ms. Young say that the relationship between the RMPS

and the DMPS is complex, and the Board agrees. It considers that this was, in effect,

the opinion of Mr. Lloyd, and of Mr. Dickey, as well.

[190] Given its scope, the RMPS is, not surprisingly, a long document – 160

pages, not counting the attached maps. It has nine chapters and five appendices. Like

all municipal planning strategies, it has a number of discernible themes. In the Board’s

opinion, two of these themes, densification and opportunity sites, were emphasized by

the Appellant. Another theme, compatibility, was acknowledged by the Appellant, but

emphasized by the Respondent HRM and the Intervenors.

49

Document: 209348

[191] The introduction to the RMPS describes it as:

…a detailed, long-range, region-wide plan that outlines where, when and how future sustainable growth should occur in HRM.

[192] The introduction to the “Implementation” chapter of the RMPS describes it

as:

…the primary policy document used to guide decision making for growth and development within HRM. It gives an overall vision for land-use development, and provides general strategies and approaches…to achieve that vision.

[193] The RMPS says that:

HRM’s hierarchy of planning documents is changed upon the adoption of this plan. The RMPS:

…provides the overall policy framework for guiding and directing development throughout HRM.

[194] The adoption of the RMPS meant that the DMPS (along with 17 other

Municipal planning strategies and 15 secondary plans) now became a “secondary

planning strategy,” although its title (“Dartmouth Municipal Planning Strategy”) remained

the same.

[195] The RMPS contemplates extensive secondary planning processes

(involving steps, such as “visioning,” having significant public involvement) with potential

consequent changes to secondary planning strategies such as the DMPS. These were

to occur after the adoption of the RMPS. The RMPS gives direction as to how

“visioning” was to occur.

[196] It also includes references to criteria, such as, for example:

9.4.6 Criteria to Consider for Visioning and Planning The policies described below provide a set of community design criteria to consider during the visioning exercises and secondary planning processes. Participants will tailor the resulting vision and plan policies to the type of each community or centre and its location within HRM.

50

Document: 209348

G-12 To facilitate community stability, adaptability, vitality, quality, character and safety, Community Visioning exercises and secondary planning strategies shall consider: (a) encouraging compatibility in design while allowing sufficient scope to adapt to changing needs and markets;

… G-14 Community Visioning exercises and secondary planning strategies shall consider opportunities for the infill of two unit dwellings, small scale townhouses and low rise multiple units in appropriate locations within established neighbourhoods, including policies addressing: … (c) architecture, external design and appearance reflecting the traditional character of dwellings within the immediate neighbourhood; … (e) height, massing, scale and type of dwelling unit appropriate to the site and compatible with abutting and adjacent residential uses;

[197] The various community visioning exercises and preparation of secondary

planning strategies (referred to not just in S-39 but in G-12, and a number of other

provisions of the RMPS), have not as yet been engaged in, at least not to the point of

completion. This was noted by all the parties, the Heseltine and Young report

remarking:

Unfortunately for Dartmouth, these anticipated secondary planning processes, which would give the community opportunity to understand the identified opportunity sites, and have input into their development, has not occurred.

The Board will return to this subject elsewhere in this decision.

[198] Chapter 3 of the RMPS is entitled “Settlement and Housing.” Section 3.7.5

of that chapter (which appears just before the RMPS section on “Opportunity Sites,”

discussed elsewhere in this decision), is entitled “Neighbourhood Stability.” It says, in

part:

… This plan is designed to protect established neighbourhoods from rapid unplanned change by directing most future growth to centres where development can occur without affecting existing residents. Some limited growth can, however, be accommodated within existing neighbourhoods if it is planned with attention to good design that respects the local character. Small amounts of new development in appropriate locations can complement neighbourhoods and act as a catalyst for improvement. …

51

Document: 209348

There are many opportunities within established neighbourhoods where low to medium-density development can be accommodated without altering the local character. Through Community Visioning, future secondary planning processes may consider some new single and two unit dwellings, basement apartments, small scale townhouses and low rise multiple unit dwellings in appropriate locations. Within existing neighbourhoods, development would be required to comply with urban design guidelines. Policies and regulations will strive to ensure that infilling is sensitive, gradual and compatible with the existing physical character. Projects will be required to respect and reinforce the general physical patterns in existing neighbourhoods. [Emphasis added]

[199] The Board will here briefly refer to a matter to which it will return more than

once in the course of this decision: the breadth of possible meaning of important terms

in the MPS. In the context of the provisions the Board is currently exploring, these

include “appropriate locations” and “neighbourhoods.”

[200] “Appropriate locations” (which also appears elsewhere in the MPS, such as

in Policy G-14) is not defined in the MPS.

[201] When asked by Counsel for HRM, Ms. Brown, whether the meaning here

of the term “appropriate locations” was something for Council to decide, Ms. Young

replied:

…it is a subjective term. I’ll leave it there. [202] The Board agrees: the term is subjective. The Court of Appeal has

repeatedly commented on such terms in past planning appeals. For example, in

Archibald, the Court remarked that (barring an error of fact or principle) the Board

should defer to:

...Council’s choices on question begging terms such as ‘appropriate’ development or ‘undue’ impact.

[Archibald, para 24] [203] The Court has also repeatedly noted that policies in an MPS may have:

…more than one meaning that they are reasonably capable of bearing.

[Heritage Trust 1994]

52

Document: 209348

[204] Turning from the matter of “appropriate locations” to the term

“neighbourhood,” the Board notes that RMPS s. 3.7.5 makes repeated references to

“neighbourhood,” in various forms. It refers to “established neighbourhoods” once, to

“existing neighbourhoods” three times, and to simply “neighbourhoods” once.

[205] Just what a “neighbourhood,” or “established neighbourhood” or “existing

neighbourhood” is, or might be, and whether the subject property can be said to be in

one, or related to one, was repeatedly the subject of dispute in this proceeding.

[206] The term is referred to at some length in the “Development Agreement”

part of this decision.

[207] The Board notes that it concluded that the evidence before it (which was

consistent with evidence heard by the Board in other proceedings) does not point to

there being a restrictive, or even just generally accepted, definition of the word

“neighbourhood” within the planning profession.

[208] Further, Counsel did not point the Board to any definition in the MPS or the

Halifax Charter which would be applicable to this proceeding.

[209] Given the lack of professional or legislative definitions, the Board turns –as

is, in its opinion, the usual practice - to the ordinary meaning of the word, as it is used in

the context of the MPS.

[210] In one of their written submissions to the Board, Counsel for Monaco

referred to an earlier Board decision, Fares Group (Re), 2008 NSUARB 14, in which the

meaning of “neighbourhood” was discussed. For convenience, the Board will repeat

here a portion of that decision:

[71] Given the lack of professional definitions of “neighbourhood” and the lack of any applicable definition within the MPS itself, or in the Act, the Board now turns to the ordinary meaning of the word, as it is used in the context of the MPS. In exploring the

53

Document: 209348

usual or ordinary meaning of the word, through the use of a dictionary, the Board is employing the same practice followed in earlier decisions: see, for example, Midtown (Para. 178) and Ocean Produce (Para. 31). [72] The definitions of the word “neighbourhood” found in The Compact Edition of the Oxford English Dictionary (Oxford University Press, 1981) include:

2. The quality, condition or fact of being neighbours or lying near to something; nearness. b. Situation in respect of surroundings. 3. The vicinity, or near situation of something. b. In the neighbourhood of, somewhere about. 5. A community; a certain number of people who live close together. 6. The people living near to a certain place or within a certain range

[73] The American Heritage Dictionary of the English Language (American Heritage Publishing Company Incorporated 1969) includes the following definitions of “neighbourhood”:

1. A district considered in regard to its inhabitants or distinctive characteristics. 2. The people who live in a particular vicinity. [74] The Canadian Oxford Dictionary (2nd Edition, 2004), includes the following definitions of “neighbourhood:” 1a a district, esp. considered in reference to the character or circumstances of its inhabitants. b a small, but relatively self-contained section of a larger urban area; 3...the nearby or surrounding area, the vicinity.

[75] The Board concludes that the term “neighbourhood,” as defined in the above dictionary entries, does not have a narrowly limited, much less a fixed, definition. The term can, in the Board’s judgment, properly take on various meanings which reflect the circumstances in which it is used, and as such might be seen as covering (again, depending on the circumstances) larger, or smaller geographic areas.

[211] For the purposes of the present proceeding, the Board adopts its

conclusion with respect to the range of possible meaning of the term “neighbourhood,”

as expressed in paragraph 75 of Fares.

[212] RMPS Policy IM-22 recognizes the possibility of conflict between it and the

secondary planning strategy, such as the DMPS:

IM-22 In the event of conflict between this Plan and a Secondary Planning Strategy, the more stringent shall prevail.

54

Document: 209348

[213] While Dartmouth’s Municipal Planning Strategy, the DMPS, became (with

the adoption of the RMPS in 2006) a “Secondary Planning Strategy,” the RMPS is clear

on the continuing significance of the DMPS. The DMPS, and the other Municipal

planning strategies in existence at the time of the adoption of the RMPS, are –

according to the explicit language of the RMPS – to continue in effect, as official

municipal policy, until they are repealed, i.e., replaced by new secondary planning

strategies:

…until the secondary planning processes are completed HRM shall continue to regulate land use in those areas identified as centres and for those areas between centres according to the policies of the applicable existing secondary planning strategies in land-use by-laws, except where otherwise provided by this plan.”

5.10.4 DMPS Policy IP-1(c)

[214] Absent the completion of community visioning processes and secondary

planning processes (which, as the Board has already noted, has not occurred) it is the

existing DMPS policies, along with the RMPS policies, against which Council’s decision

must be measured.

[215] In the view of the Board, all of the witnesses recognized, to one degree or

another, DMPS Policy IP-1(c) as being of significance in re-zoning applications. The

policy includes the following:

DMPS POLICY IP 1 C … (c) Zoning By-law The Zoning By-law is the principal mechanism by which land use policies shall be implemented. lt shall set out zones, permitted uses and development standards which shall reflect the policies of the Municipal Development Plan as per Section 33 (3) of the Planning Act... … In considering zoning amendments and contract zoning, Council shall have regard to the following: … (2) that the proposal is compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal;

55

Document: 209348

(3) provisions for buffering, landscaping, screening, and access control to reduce potential incompatibilities with adjacent land uses and traffic arteries (4) that the proposal is not premature or inappropriate by reason of: … (vii) the presence of natural, historical features, buildings or sites … (6) that controls by way of agreements or other legal devices are placed on proposed developments to ensure compliance with approved plans and coordination between adjacent or nearby land uses and public facilities. Such controls may relate to, but are not limited to, the following: (i) type of use, density, and phasing … (iii) traffic generation, access to and egress from the site, and parking … (v) provisions for pedestrian movement and safety (vi) management of open space, parks, walkways … (7) suitability of the proposed site in terms of steepness of slope, soil conditions, rock outcroppings, location of watercourses, marshes, swamps, bogs, areas subject to flooding, proximity to major highways, ramps, railroads, or other nuisance factors.

[216] As a first point, the Board notes that some of the language used in DMPS

Policy IP-1(c) reflects the fact that the DMPS was adopted in 1978.

[217] For example, the policy refers to the Planning Act, which has since been

repealed, and replaced by the Municipal Government Act. Moreover, for HRM

(although not for other municipalities in the Province), the Municipal Government Act

itself has now been replaced by the Halifax Regional Municipality Charter.

[218] Further, DMPS Policy IP-1(c) refers to “contract zoning.” This is a term

which, for our purposes, can be considered to be synonymous with “development

agreements.” The latter term appears in the Municipal Government Act and Halifax

Charter; the former (“contract zoning”) is associated with the Planning Act.

[219] The Board noted above that the RMPS contains references to the term

“neighbourhood.” In looking at DMPS Policy IP-1(c), the word “neighbourhood” does not

appear. As will be seen under the “Development Agreement” part later in this decision,

56

Document: 209348

it does appear in DMPS Policy IP-5, which applies to development agreements (but not

to rezonings).

[220] Nevertheless, the Board does note that DMPS Policy IP-1C does use the

phrase “in the area” – and the Board sees “area” as being a term which, like

“neighbourhood”, is capable of broad interpretation.

[221] In interpreting DMPS Policy IP-1 (c), in the context of the present

proceeding, the Board notes as well the frequency with which the word “compatibility,”

or derivations of it, appear in it. The word “compatible” appears in clause (2), and

“incompatibilities” in clause (3).

[222] The term “compatibility,” and its derivatives, is likewise not defined within

the MPS. In the view of the Board, all parties, including Monaco, acknowledged that

compatibility is a relative term.

[223] In the context of the present proceeding, the term can be seen as having a

number of aspects. Included among these (although the Board notes by no means

restricted to) are three things (traffic; shade, or shadows; and wind) in relation to which

the Board received evidence from three experts retained by Monaco. There was no

corresponding evidence from HRM or the Intervenors. Because of the volume of

evidence received in relation to each of these topics, and of the submissions addressing

each, the Board deals with them separately below.

[224] In DMPS Policy IP-1(c)(6), the words “compatible” or “incompatible” do not

appear, but the provision refers to “coordination between adjacent or nearby land uses

and public facilities.” The Board sees the latter language as capturing some of the

same meaning as compatibility.

57

Document: 209348

[225] DMPS Policy IP-1(c)(2) tells Council it must have regard to a proposal

being compatible and consistent with what are called “adjacent uses” and the “existing

development form.” The meaning of such words as “adjacent” can be relatively wide

ranging and is not generally regarded as being restricted to simply land which is

abutting. Certainly, in the view of the Board, the words “in the area” (which appear after

the words “the existing development form”) can reasonably be regarded as even more

general.

[226] DMPS Policy IP-1(c)(2) goes on to direct that Council have regard to these

matters from the perspective of the:

…use, bulk, and scale of the proposal…

[227] The words “bulk” and “scale” are likewise not defined in the Halifax Charter

or the MPS, nor it seems, from the evidence, do they have any specific, narrow

professional usage which might give assistance in interpretation. In the view of the

Board, they can be reasonably interpreted to include at least such things as the

apparent width and height of a building in relation to other developments in the area.

While the specific word “height” is not mentioned in DMPS Policy IP-1, it does appear

(as will be seen later in this decision) in DMPS Policy IP-5.

[228] At DMPS Policy IP-1(c)(3), Council is also directed to have regard to,

among other things, “buffering.” The Canadian Oxford Dictionary defines “buffer” in part

as follows:

1. a a device that protects against or reduces the effect of an impact … 3 b an area, person, thing, etc., that protects from the potentially damaging impact of one person, activity, etc., on another.

The definition of “buffer” in The American Heritage Dictionary of the English Language

is similar.

58

Document: 209348

[229] IP-1 (c) (3) also says Council is to have regard to “access controls”, which

are to avoid potential incompatibility with adjacent land uses and roads.

[230] At DMPS Policy IP-1(c)(6), Council is directed to have regard to “controls”

which have as one of their objectives “coordination” with adjacent or nearby land uses.

Those controls may relate to such things as density, and also, once again, traffic.

[231] Before further exploring the idea of compatibility in the context of the MPS,

the Board will look first at how Mr. Dickey chose to approach the subject in his report to

Council.

[232] While DMPS Policy IP-1(c) contains a number of references expressly or

impliedly relating to compatibility, it will be recalled that Councillor McCluskey, in the

January 17th meeting at which Council rejected Monaco’s application, told Mr. Dickey

that he had not mentioned the compatibility of Monaco’s project in his report.

[233] The approach taken by Mr. Dickey in his report can be illustrated with the

following short excerpt from it, which contains his quotation of DMPS Policy IP-1(c)(2),

on the left, and his commentary about it, in the context of Monaco’s application, on the

right.

[234] The entry for DMPS Policy IP-1(c)(2), in its entirety, contains the following:

(2) that the proposal is compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal

High density residential use of 307 Prince Albert Road is more compatible with adjacent and nearby housing than commercial development, which has limited controls under the C-2 zone. There is a wide range of development types and scales in the area. Application of the R-4 zone will provide Council with control over the bulk and scale development on the site in relation to the immediate area.

[235] DMPS Policy IP-1(c)(2) then, talks about a proposal being compatible and

consistent with adjacent uses and the existing development form, in the area, in terms

59

Document: 209348

of the use, bulk, and scale of the proposal. In the Board’s judgment, the corresponding

discussion, as quoted above, could properly be expected to include an evaluation of the

proposal itself in the context of items mentioned in the subsection (such as “adjacent

uses” and “existing development form”). As but one example, the discussion might be

expected to include references to the height of the proposed building and the height of

existing structures in the area.

[236] In the view of the Board, however, the above-noted excerpt ignores such

information, and refers only to the possible effects of a different project, or “alternative

use” – a commercial one – going up on the site if the present proposal were not to be

accepted. One of the alternative uses which Mr. Dickey mentioned in his evidence, as

the Board has previously noted, is a hotel. In the midst of the application process for

the development which is the subject of this appeal, Monaco applied for and obtained a

development permit for the construction of a 16-storey hotel (one storey higher than

Monaco’s proposed project).

[237] Mr. Dickey took a similar approach in other parts of his evidence.

[238] As a further example, DMPS Policy IP-1(c)(6) Zoning By-Law includes (as

the Board has already noted) reference to ensuring coordination between adjacent or

nearby land uses and public facilities. Such controls may relate to “type of use, density

and phasing.”

[239] Once again, however, Mr. Dickey’s discussion of this provision (in the

same style as his presentation of DMPS Policy IP-1(c)(2)) does not compare Monaco’s

proposed high-density development to the existing uses. Instead, it simply says that the

60

Document: 209348

proposed high-density development is to “avoid the introduction of larger-scale

development” which could arise under the commercial designation.

[240] In the view of the Board, this aspect of Mr. Dickey’s approach was

mirrored, to a degree, in the following written submission by Counsel for Monaco, who

remarked that compatibility is:

…a relative term which can be measured by considering existing lawful alternative uses than the one proposed.

[241] The Board thinks compatibility is indeed a relative term. But, while its

evaluation can involve (in the Board’s opinion) the consideration of alternative uses, it

must not be restricted to that, and the Board did not take the submissions of Counsel for

Monaco, taken as a whole, as arguing that it should.

[242] It is true that, in their March 29, 2012, report, Mr. Heseltine and Ms. Young

themselves do look at, and emphasize, alternative uses. They also look, however, at

such things as the existing pattern of development, etc.

[243] Mr. Lloyd took exactly the opposite view to that of Monaco and its experts.

In his opinion, the question of an alternative use (such as a hotel) is irrelevant to the

question of evaluating compatibility: the proper focus, he says, is upon the project

proposed.

[244] One justification for Mr. Lloyd’s position is the fact that the MPS does not

explicitly identify the question of alternative uses as a criterion to be evaluated.

[245] Nevertheless, the Board, having considered the submissions and evidence

before it, does not agree with his assertion that alternative uses are necessarily

irrelevant.

61

Document: 209348

[246] Instead, the Board sees alternative uses as being, in certain circumstances

(including the present proceeding), a matter which Council may reasonably take into

account, under the MPS, when reaching a decision with respect to planning matters.

An example of an appeal in which the Board saw alternative uses as a relevant

consideration is Armour Group Limited vs. HRM et al., 2009 NSUARB 35.

[247] However, within the context of DMPS Policy IP-1(c), it is the judgment of

the Board that the compatibility of the use which is actually being proposed (as opposed

to some alternative use) is something which is not just sometimes relevant, but –

without doubt – always relevant.

[248] In short, the Board has concluded that Policy IP-1(c)(2)’s statement that

Council must have regard:

…that the proposal is compatible and consistent with adjacent uses in the existing development form…

properly requires (in the Board’s judgment) evaluating the actual proposed development

against the development existing in the area.

[249] In looking at Monaco’s proposal itself (rather than an alternative project,

such as a hotel), the Board considers that many aspects of the evidence may be seen

as relating, in one way or another, to compatibility (and to related terms, such as

buffering).

[250] Turning first to height, the project is to be 15 storeys in height, or perhaps

about 150 feet tall. As the Board has noted previously, the term “height” appears

explicitly in DMPS Policy IP-5 (which relates only to development agreements), but not

in DMPS Policy IP-1(c), which applies to rezonings as well as development agreements.

Nevertheless, quite apart from the RMPS, the Board considers height to be implicitly

62

Document: 209348

incorporated in the DMPS in relation to rezonings, including in the use of the term

“scale.”

[251] Mr. Heseltine and Ms. Young claim that:

The amalgamation of the R-2 Parcel with the C-2 Parcel provided the necessary buffer space to the adjacent single-family homes.

They strongly believe that the tower is not too tall for its location.

[252] Once again, Mr. Lloyd emphatically disagrees. He sees the 15-storey

structure as fundamentally incompatible with the one and two-storey houses which are

immediately adjacent to the subject property. These houses line both sides of

Glenwood running up from Prince Albert.

[253] The “buffer” to which Mr. Heseltine and Ms. Young refer is, in essence, little

more than the single residential lot lying between the C-2 property (upon which the

Monaco tower is to rise) and the first of the houses on Glenwood.

[254] The Board need not find that the buffering claim made by Mr. Heseltine and

Ms. Young is not reasonably consistent with the MPS. It need only conclude that the

contrary view –that Monaco’s tower, given its short distance from the adjacent houses,

is too much height, too soon – is reasonably consistent with the MPS.

[255] If one steps back and looks along the approximately one mile length of

Prince Albert Road (and the streets immediately off it), the tallest presently existing

building is only five storeys. Among the existing buildings in the area, then, a 15-storey

tower would be a sharp departure.

63

Document: 209348

[256] With respect to Monaco’s evidence on the point, the Board notes that the

March 29, 2012, report by Mr. Heseltine and Ms. Young says, in reference to high-rise

buildings, that, in:

…the immediate neighbourhood around Lake Banook we identified a number of very tall buildings, including two of a similar height to the proposal – One Oak Street and 55 Crichton Park Drive [sic].

A reader ought not to infer from their reference to these buildings being in “the

immediate neighbourhood around Lake Banook” that they are in the immediate

neighbourhood around the subject property, on Prince Albert Road. They are not.

[257] For greater certainty, the Board notes that none of the high-rise buildings

emphasized in Monaco’s evidence are located in the Prince Albert Road area, which is

on the east side of Lake Banook.

[258] 55 Crichton Avenue and 1 Oak Street, the two tallest (at 15 storeys and 13

storeys), are located to the south and west of Lake Banook. More specifically, they are

a few hundred feet to the west of Sullivan’s Pond, which itself is a few hundred feet

south of the extreme southwestern tip of Lake Banook.

[259] The Board notes that, in their May 2, 2012, report, Mr. Heseltine and Ms.

Young likewise claim proximity of the subject property to 1 Oak Street and 55 Crichton

Avenue. They refer to them as being “in the immediate area”; by the Board’s

estimation, they are at least three quarters of a mile away.

[260] The other three are clustered in a wooded area in the northwest corner of

Lake Banook, near the still-undeveloped YMCA site. The tallest is 10 storeys high, and

the other two are seven storeys high.

[261] Apart from being three times as tall as any other buildings in the Prince

Albert Road area, the Monaco proposal would also be much higher than the 35-foot

64

Document: 209348

height-restriction area around Lake Banook, which the Board will discuss in more detail

under the subject “Wind.”

[262] In the present context of compatibility, the Board notes once again that

HRM planning staff had recommended approval of a seven-storey building on the

nearby Paddlers Cove site, but Council had rejected it. Immediately after rejecting the

Paddlers Cove recommendation, Council imposed a 35-foot height-restriction area

around Lake Banook, which included the Paddlers Cove site.

[263] In Monaco, the planning staff is now recommending a 15-storey building on

a property which literally abuts the 35-foot height-restriction area. When Counsel for the

Intervenors asked Mr. Dickey if he agreed that a height increase from 35 feet to 150 feet

was “a substantial jump,” Mr. Dickey replied, “No.”

[264] The Board need not find Mr. Dickey’s answer on this point to be

unreasonable, but it does find that the opposite view would be one that would

reasonably carry out the intent of the MPS.

5.10.5 Emphasis by Monaco on C-2 Zoning [265] As the Board perceived it, Monaco (and its experts, Mr. Heseltine and Ms.

Young, and, in effect, Mr. Dickey) placed great importance on the fact that the tower

itself would be built exclusively on the funeral home lot, which is currently zoned

Commercial (C-2), and not on the R-2 lot which is also part of the property.

[266] It appeared to the Board that the importance which Monaco attached to the

C-2 zoning of the lot on which the tower is proposed to be built had several aspects.

65

Document: 209348

[267] In explaining the importance which they attach to this C-2 Zone, Monaco

and its experts more than once compared the zoning in the Twin Lakes project with the

zoning in the Monaco project.

[268] As the Board has discussed previously, planning staff opposed approval of

the Twin Lakes project, but Council approved it anyway.

[269] In Twin Lakes, the building itself would stand entirely on land lying in the

Residential Designation, which was zoned R-2. The portion accommodating the

driveways would be on lands within the commercial designation.

[270] The proposed Monaco project is exactly the reverse. In Monaco, the

building would stand entirely on land zoned C-2. The above-ground parking, and a

portion of the underground parking garage, would be on land currently zoned R-2.

[271] A principal reason for staff’s opposition to the Twin Lakes proposal was

that the high-rise residential structure would be built on lands currently zoned for only R-

2 (i.e., residential, but not high rise).

[272] Mr. Dickey – together with Mr. Heseltine and Ms. Young – saw this as an

“important distinction.” From the perspective of Monaco’s experts and its Counsel,

Monaco’s building would be “a more favourable situation” than would be the Twin Lakes

structure, because Monaco’s tower would be in an area currently zoned C-2, rather than

Residential.

[273] The significance which Mr. Dickey, and Mr. Heseltine and Ms. Young,

attribute to Monaco’s tower being on a C-2 lot (rather than one zoned Residential)

cannot be, in the Board’s view, underestimated.

66

Document: 209348

[274] As but one illustration, Mr. Dickey testified that if the proposed location of

the tower were to be moved from its present proposed position just 50 feet up

Glenwood, he would have opposed it – because the tower, or at least part of it, would

now stand outside the C-2 lot.

[275] The Board observes two difficulties with this position. The first relates to

the parking for the Monaco project (which is essential to its success) being

accommodated in part on lands currently zoned R-2; the second, and the more

important, relates to what the Board sees as an emphasis on zoning (and the

commercial designation) as key, as opposed to what the MPS as a whole, and in

particular, DMPS Policy IP-C(1), actually says. The Board will deal with these two

aspects in order.

[276] With respect to the first aspect, parking, the Board notes that, for the

Monaco development to work, Monaco had to incorporate 5 Glenwood (presently zoned

R-2) into its provisions for parking, both below ground and above ground, on the east

side of the building. In short, Mr. Dickey placed heavy emphasis on the fact that the

Monaco tower alone would, itself, not stand on land that had previously been zoned

residential – but Monaco’s development could not go forward in its present configuration

without the residentially-zoned lot at 5 Glenwood being incorporated into the building

site.

[277] To put it another way, a portion of the long-existing residential area would

not be merely adjacent to Monaco’s development, but would be an integral, and

necessary, part of it.

67

Document: 209348

[278] The Board sees no provision in the MPS or the LUB, or indeed in planning

principles as they have been elucidated in the case law by the Court of Appeal, which

suggests that, somehow or other, taking R-2 land, and rezoning it to R-4 to create an

essential parking lot, would, as a matter of principle, be acceptable – while placing the

tower itself, or even a tiny portion of it, on the former R-2 lot, would, as a matter of

principle, not be.

[279] Before moving on to the second point (relating to Monaco’s emphasis on

zoning), the Board will first observe that it, of course, recognizes that zoning is central

and critical to as of right development. If a particular piece of property is in a particular

zone, particular uses may occur upon it.

[280] The present proceeding, however, is not, of course, an as of right

development – so, while the zoning of the subject property is, of course, relevant, it is

not, in the judgment of the Board, determinative.

[281] With respect to the second aspect (Monaco’s emphasis on zoning), DMPS

Policy IP-1(c)(2) refers, in part, to Council having regard to a project being compatible

and consistent with adjacent uses, and with the existing development form in “the area.”

It does not say in “the zone.”

[282] More than once, however, the Board perceived the positions taken by

Monaco’s experts, which were naturally reflected in the submissions of Monaco’s

counsel, as meaning that the C-2 zoning somehow isolated the lot upon which

Monaco’s tower is to be built from such things around it as the adjacent residential

development.

68

Document: 209348

[283] For example, Mr. Dickey testified that Monaco’s project is:

…in a more favourable situation than Twin Lakes as it is not introducing a building into the residential designation, but rather in the area currently zoned C-2.

[284] In a similar vein, Counsel for Monaco argued in one of its written

submissions to the Board that the project:

Provides an ideal opportunity to pursue [the goal of population densification] as the site on which the building is proposed is zoned C-2, is in a commercial area adjacent to a residential area, and is located on a major traffic corridor. It is outside the established neighbourhood to which it is adjacent. [Emphasis added]

[285] Likewise, Counsel for Monaco also remarks:

…The site of the Prince Albert cannot be said to be in an “established neighbourhood” as it is zoned C-2.

[286] The Board will, later in this decision (in the “Development Agreement” part),

discuss further the evidence and submissions by Monaco with respect to the concept of

“neighbourhood,” as well as Monaco’s view of the relationship between zoning and the

concept of neighbourhood, as illustrated in the above passage.

[287] For the purposes of the present discussion of the rezoning application,

however, the Board first notes that the above quotations refer to the term

“neighbourhood.” As the Board noted earlier in this decision, the term “neighbourhood”

appears in the RMPS, and also in DMPS Policy IP-5, but not in DMPS Policy IP-1(c); it

is, without doubt, an important one in the MPS, but it is not defined, either on its own, or

in derivative form, such as “established neighbourhood.”

[288] In the judgment of the Board, the assertion by Counsel for Monaco that his

client’s tower would be “outside the established neighbourhood” is, at best, but one

reasonable interpretation of the facts and the MPS in the present circumstances. The

Board considers to be at least equally persuasive the argument that regarding Monaco’s

69

Document: 209348

development as part of the established neighbourhood is a reasonable interpretation of

the MPS.

[289] In the view of the Board, this argument is even stronger when one

recognizes that DMPS Policy IP-1(c) refers only to the term “area,” rather than the term

“neighbourhood.” In the view of the Board, the term “area” is even broader, or more

subjective, than the term “neighbourhood.”

[290] The Board thinks that one reasonable interpretation of the MPS is that the

extensive R-2 development on Glenwood, adjacent to the subject property and

extending up the hill on both sides of the street, amount to “an existing development

form,” which is located “in the area” of the subject property. Likewise, the low-rise

residential housing on and near the shore of Lake Banook, on Lakeview Point Road,

Hume Street and Ashton Lane (which are on the opposite side of Prince Albert Road

from the subject property) could also be reasonably seen as an existing development

form in the area.

[291] As such, it is the Board’s judgment that this is a matter to which Council

could properly have regard in evaluating Monaco’s proposal, including its “bulk and

scale.”

[292] In making this point, the Board is conscious of the position (referred to later

in the “Development Agreement” part of this decision) of Counsel for Monaco in which

he rejects the argument (which he attributes to HRM and the Intervenors) that:

…as long as there are single-family homes in the vicinity, [high-rise] development is precluded.

[293] For greater certainty, the Board, in reaching its conclusion on this point,

does not mean to imply that, under the MPS, the presence of low-rise residential

70

Document: 209348

buildings in an area automatically means that a high-rise building would be

incompatible. The Board is simply saying that, in the context of the MPS (particularly

DMPS Policy IP-1(c)) in the present proceeding, the close proximity of the subject

property to low-rise residential housing is a matter to which Council can reasonably

have regard in considering a zoning application.

5.10.6 Wind, Traffic and Shadows

[294] The Board will now turn to the subjects of wind, traffic, and shadows. For

each of these topics, Monaco commissioned engineering reports, and provided oral

testimony from the persons who prepared those reports. These topics were discussed

from a variety of perspectives, but all were discussed at least partly in the context of the

concept of compatibility, including with respect to DMPS Policy IP-1(c) and DMPS

Policy IP-5.

5.10.6.1 Wind

[295] Wind was the subject of extensive oral and written evidence and

submissions. Given the provisions of the MPS, and the evidence before it, the Board

perceives two fundamental questions with respect to the matter of wind in this

proceeding:

• are wind effects on Lake Banook a matter which may properly be regarded under the MPS, in the context of this proceeding?

• what is the evidence respecting wind on Lake Banook, in the context of the MPS?

5.10.6.1.1 Are Wind Effects on Lake Banook a Matter

Which may Properly be Regarded under the MPS, in the Context of this Proceeding?

71

Document: 209348

[296] The initial question to be resolved is whether a consideration of wind

effects on Lake Banook is something which can properly be considered, under the

MPS, in the context of Monaco’s proposed building.

[297] Mr. Heseltine and Ms. Young acknowledged that: Wind is the key concern with taller structures.

[298] However, they also said:

While we do not believe there is a policy basis for the request, the applicant also had the wind study consider potential impacts on Lake Banook.

According to Mr. Heseltine and Ms. Young, then, there is no “policy basis” for HRM

having requested a wind study. The Board considers that a reasonable interpretation of

this is that they were asserting that the policies of the MPS do not provide a basis for

HRM’s request for information about the possible wind effects on the lake.

[299] As the Board has previously discussed, the subject property abuts, but is

outside, the Banook Lake 35-foot height-restriction area. One might infer that one

reason (at least in part) for their position is the fact that the subject property is outside

the 35-foot height-restriction area – even if only just.

[300] The Board does note that Mr. Heseltine and Ms. Young did comment,

elsewhere in their evidence, upon the matter of wind and the Lake.

[301] The Board will not here speculate further as to the possible intended scope

of the above-quoted statement. Whatever the meaning intended by Mr. Heseltine and

Ms. Young, it is the Board’s opinion that the MPS (in more than one provision) makes

consideration of wind impacts on Lake Banook something which can reasonably be

taken into consideration in the circumstances of the present proceeding.

72

Document: 209348

[302] Looking only at DMPS Policy IP-1(c), one finds the MPS directs Council to

have regard (both with respect to zoning amendments and development agreements) to

the proposal being, for example:

…compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal…

The provision also refers to the reduction of:

…potential incompatibilities with adjacent land uses… [303] On this point, the Board notes, first, that the staff report prepared by Mr.

Dickey (who in most ways allied himself with the position of Mr. Heseltine and Ms.

Young at the hearing) specifically states that the MPS allows Council, in making its

decision, “to consider wind impacts.” He cites DMPS Policy IP-1(c)(3) and (4)(ix)

respectively. Mr. Dickey’s report concludes that the Lake Banook paddling course “is

not negatively impacted.”

[304] The staff report makes it clear that staff were not looking at the matter of

pedestrians on sidewalks adjacent to the building only, but also the matter of wind

effects on Lake Banook, noting:

…although the site is outside of the area defined by Council, there is a public concern that a project of this scale and bulk may impact the paddling course.

The quoted statement, then, says there is a “public concern” about the effects of wind

on Banook – but not that the MPS justifies attention to the matter.

[305] Other parts of Mr. Dickey’s evidence left the Board not entirely clear as to

whether he was indeed willing to acknowledge that activities on Lake Banook could be

properly regarded as an “adjacent” or “nearby” land use within the meaning of (for

example) DMPS Policy IP-1(c)(2) and (6); the Board saw Mr. Dickey, under cross

examination by Ms. Brown, as being reluctant to acknowledge this.

73

Document: 209348

[306] When she questioned him, for example, with respect to the words,

“compatible and consistent with adjacent uses” as it appears in DMPS Policy IP-1(c)(2),

he initially asserted that adjacent meant “directly abutting.” He then said it could mean

“very, very nearby.”

[307] When she asked him if the parkland next to Lake Banook – the existence

of which he had relied on in his calculation of extra, or “bonus,” units, thereby allowing

Monaco’s building to be larger (a matter dealt with elsewhere, in Issue 3, in this

decision) – he said that he considered that the park and the trail (the latter being a

relatively narrow band lying between Prince Albert Road and the shoreline of Lake

Banook) were “nearby.” The park and trail, of course, are in the 35-foot height-restriction

zone.

[308] Under further cross examination, he maintained (as the Board perceived it)

that the park and trail were an adjacent use (and, accordingly, justifiably used by him to

calculate additional bonus units for Monaco). On the other hand, Lake Banook – the

shore of which, again, forms a boundary of the park and of the narrow trail – was not

something to be taken into account:

…I honestly can’t see extending that argument to the Lake itself…

[309] The Board found this assertion to be remarkable: a principal reason for the

the 35-foot height restriction around Lake Banook is the protection, mainly related to

wind, of activities on Lake Banook, including, in particular, boat races. The boundary of

the restriction area runs along Prince Albert Road, and as the Board has already noted

earlier in this decision, zig zags around the subject property, which abuts it. If it were

not for the zig zag, the subject property would be in the restriction area. Despite this,

however, it appeared to remain Mr. Dickey’s position that the lake was not something

74

Document: 209348

which could properly be included in the definition of an “adjacent use” within the

meaning of IP-1(c)(2).

[310] In addition to DMPS Policy IP-1(c), there are, in the view of the Board,

other provisions in the MPS which are likewise consistent with the view that possible

wind effects on Lake Banook are a factor which can reasonably be taken into account.

For example, RMPS Policy IM-15 (which the Board notes relates to development

agreements, but not rezonings) addresses itself, in part, to “conflict with any adjacent or

nearby land uses” by reason of height and bulk:

RMPS IM-15 In considering development agreements or amendments to land use by-laws, in addition to all other criteria as set out in various policies of this Plan, HRM shall consider the following: … (b) that controls are placed on the proposed development so as to reduce conflict with any adjacent or nearby land uses by reason of: (i) type of use; (ii) height, bulk and lot coverage of any proposed building; (iii) traffic generation, access to and egress from the site, and parking; …

IM-15 (b)(iv) and (v) omitted as not relevant to this matter. [311] DMPS Policy IP-1(c)(2) refers to simply “adjacent uses,” while RMPS

Policy IM-15 refers to “adjacent or nearby land uses.” While the Board did not perceive

the point as being pursued by the parties, the Board considers it might be possible to

argue that the boating activities on the waters of Lake Banook are not a “land” use.

Given the view the Board takes of the MPS as a whole, and its view of the proper

disposition of this case, the Board will not here explore whatever merits that argument

might have. Instead, it simply notes once again that, for example, DMPS Policy IP-

1(c)(2) refers simply to “adjacent uses,” (not “adjacent land uses”).

75

Document: 209348

[312] Lastly, the Board notes once again the existence of other provisions within

the MPS which relate to the use of Lake Banook, including DMPS Policy IP-9, entitled

Lake Banook Canoe Course, which relates to development agreements.

[313] Taking into account the MPS and evidence before it as a whole, the Board

considers it a reasonable interpretation of the MPS that the possible wind effect of

Monaco’s proposed tower upon Lake Banook, and the activities occurring on it, is

something to which Council could give weight, as long as the weight given is reasonably

consistent with the MPS taken as a whole.

5.10.6.1.2 What is the Evidence Respecting Wind on Lake Banook, in the Context of the MPS?

[314] In the preceding paragraphs, the Board determined that the matter of wind

is one which it is proper, under the MPS, to consider in this appeal. The Board now

turns to a second wind-related question: what is the evidence before the Board with

respect to wind, and what significance can properly be attributed to it, in the context of

the MPS?

[315] Counsel for Monaco points out that the only expert evidence before the

Board with respect to wind has been supplied by Monaco through Dr. Wu.

[316] In other words, the Board received no expert evidence from either HRM or

the Intervenors with respect to wind.

[317] On this point, the Board notes that it did, in the course of its various

preliminary hearings on this matter, disallow certain portions of evidence which the

Intervenors and HRM proposed to present, which related, at least in part, to wind. The

reasons for this deletion included failure, in the Board’s opinion, to meet the evidentiary

rules with respect to opinion evidence.

76

Document: 209348

[318] Dr. Wu’s report of June 22, 2011 (but not the earlier version of June 15th,

as the Board has already recounted under “Facts,” above) states that:

…there are no negative consequences resulting from the building that could affect the lake and no further investigation is warranted.

The Board considers that this statement, taken by itself, might be interpreted by a

reasonable reader as very nearly absolute; indeed, the Board interpreted some of the

submissions and other evidence on behalf of Monaco as suggesting that that is the view

that the Board should take of Dr. Wu’s evidence.

[319] The opposing point of view, however – as put forward by Counsel for HRM,

both in cross examination and in subsequent written submissions – is that Dr. Wu’s

report should be seen as one which contains a number of implicit, and even explicit,

limitations, and that its contents do not preclude Council from reasonably having regard

to potential wind impacts.

[320] In general, the Board agrees with the submissions by HRM in relation to

this point.

[321] The Board will here briefly explore some of its reasons for this conclusion.

[322] First, the Board notes that Dr. Wu expressly acknowledges that:

There are no universal criteria available for evaluating the wind effects on a canoe course.

[323] Because of this lack of universal criteria, Dr. Wu has developed his own

methodology, beginning sometime around 2003. It has not yet, however, been the

subject of peer review, nor has it – at least according to the evidence before the Board –

been adopted by others.

[324] At least some, if not all, of his previous estimations of wind on and around

Lake Banook (done in relation to earlier projects which did not go forward) involved

77

Document: 209348

wind-tunnel analysis. In a wind-tunnel analysis, a physical model of the area is created,

artificially-created wind is blown over it, and measurements carried out.

[325] In dealing with the Monaco project, Dr. Wu did not use the wind-tunnel

approach. Instead, he used a so-called “desktop” review, which does not use any

physical model. Instead, it involves an analysis which is done entirely inside a

computer.

[326] The Board concluded from the evidence of Dr. Wu that he had chosen to

do a desktop review, rather than a wind-tunnel review, because he considered that it

was adequate for the task, and because the desktop review would be cheaper. A

typical desktop review might cost a third, or a little more, of the cost of a wind-tunnel

review.

[327] In carrying out his desktop review, Dr. Wu first loaded into a computer a

virtual (i.e., not physically existing) representation of the topography around the subject

property. The Board notes that Dr. Wu’s report does not specifically identify what

building design he assumed would be constructed on the subject property.

[328] He also acknowledged, on cross examination, that he did not take into

account the vegetation along the shoreline, which could have an impact on wind

condition.

[329] After inputting the topographical data, the second key input was wind data.

The wind data he used was not measured at Lake Banook itself. Instead, he relied (as

had previously been accepted as a reasonable approach for earlier wind studies at Lake

Banook) upon wind records of measurements taken at Shearwater Airport.

78

Document: 209348

[330] Lake Banook is at least three miles from Shearwater. Shearwater is on

relatively flat land, and adjacent to the ocean. Dr. Wu acknowledged on cross

examination that sea breezes could have an effect upon Shearwater, given its location

adjacent to the ocean.

[331] Banook lies in what amounts to a valley, with a relatively steep slope on its

easternmost side, i.e., between it and Shearwater.

[332] In using the Shearwater wind data, Dr. Wu:

• “lifted” (again, virtually) the wind data for Shearwater to an altitude of

about 2,000 feet above the airport, changing the wind direction and speed to

reflect the increased altitude, using certain assumptions about the behaviour of

wind in doing so;

• “moved” the hypothetical winds to a position above the virtual

representation of the subject property and the topography around it, including

the lake;

• “lowered” them onto the subject property and the area around it, once

again making certain assumptions about what would happen to wind speed and

direction as a result of the lowering;

• observed in his computer the interaction between the “virtual” winds and

the “virtual” topography;

• developed from these observations (as seen through the wind

methodology he himself developed) his predictions as to the likely behaviour of

winds in the area.

79

Document: 209348

[333] In the view of the Board, Dr. Wu is indeed convinced that the risks of

potential effects on wind conditions over the canoe course on Lake Banook are

“negligible.”

[334] But Dr. Wu also had no difficulty acknowledging that a desktop review is

not the equal of a wind tunnel review. Further, he freely acknowledged that sometimes

even a wind tunnel result may not be accurate. The Board interpreted his evidence as

being that “nobody” would assert that a wind-tunnel result could be 100% accurate.

[335] The Board concluded from the evidence and submissions before it on the

point that Dr. Wu’s results are, on the balance of probabilities, likely to be correct – but it

is not at all impossible they may be wrong.

[336] On this point, Counsel for HRM, in their written submissions, assert that if

the results of Dr. Wu’s desktop simulation are:

…flawed or inaccurate the harm would be irreparable and the only recourse would be to live with the results.

In the worst case, Counsel for HRM suggests, this might include the Lake Banook

course losing its world-class status, with effects not just on competitors, but on the

community as a whole.

[337] While this statement might provoke the assertion that this is mere

speculation on the part of Counsel for HRM, the Board does not consider it inconsistent

with the evidence before it as a whole, or indeed inconsistent with the MPS provisions

which relate in one way or another (expressly or otherwise) to Lake Banook. For

example, the introduction to DMPS Policies IP-9 and IP-10 states (within the specific

context of the 35-foot height restriction):

80

Document: 209348

(q) Lake Banook Canoe Course Lake Banook canoe course is one of the best natural canoe courses in the world and it hosts both national and international canoe events…wind impacts resulting from large building developments which prevent the course from holding national and international regattas would have significant regional impacts.[Emphasis added]

Summary with Respect to Wind

[338] As the Board has noted, the subject property abuts the Banook 35-foot

restriction area. A principal factor – as is indicated by, among other things, DMPS

Policy IP-9, to which the Board has just referred – in the adoption of that restriction area

is a concern about the possible wind impact upon the lake. Just across the street from

the subject property (in either direction, i.e., whether across Prince Albert, or across

Glenwood), there is a strict height limit of 35 feet. Monaco’s tower, at 15 storeys, would

be much higher than that.

[339] The Board has reviewed the provisions of the MPS, in the context of the

evidence relating to the particular project before it. The Board finds that, in its opinion,

nothing in the MPS (in the Board’s opinion) causes it to conclude that possible wind

effects on Lake Banook become irrelevant the moment one steps outside the 35-foot

height-restriction area.

[340] To the contrary, the Board considers it to be a reasonable interpretation of

the MPS that Council could have regard (in making a decision about rezoning, or

making a decision about a development agreement, for that matter) to such matters as

the height of Monaco’s proposed building, in the context of possible wind effects upon

the lake, even though Monaco’s property is outside the 35-foot restriction area.

81

Document: 209348

5.10.6.2 Traffic

[341] As part of its application, Monaco supplied HRM’s planning staff with traffic

information prepared for Monaco by Ken O’Brien, of Genivar Traffic and Transportation.

He asserted that:

…the added trips from the proposed development are not expected to have any significant [e]ffect on intersection performance.

[342] Mr. Dickey, as the responsible planner for HRM, was satisfied with the

traffic information supplied by Monaco. HRM Counsel, however, together with Counsel

for the Intervenors, directed some criticism toward it.

[343] As the Board will discuss below, it does see some of these criticisms as

meriting giving the traffic report documentation (there was more than one report)

somewhat less weight than that apparently accorded it by HRM staff.

[344] Of the various criticisms raised by Counsel for HRM, the one which the

Board saw as the most significant was the fact that Mr. O’Brien’s traffic projections

ignore the potential effect of the Twin Lakes project.

[345] It will be recalled that Twin Lakes is to be a relatively large building, with 12

storeys and 84 units. Access to it would be via Prince Albert Road, the same road upon

which Monaco’s tower is to be located. It can be reasonably expected that a significant

part of any traffic going to, or departing from, Twin Lakes, would flow along Prince

Albert Road, past the Monaco site at the intersection of Glenwood and Prince Albert.

[346] Twin Lakes was, of course, a project of which Monaco, and Mr. Maskine,

were acutely aware when they were preparing Monaco’s rezoning and development

agreement applications. Further, submissions and evidence on behalf of Monaco in the

Board’s proceeding referred numerous times to Twin Lakes.

82

Document: 209348

[347] Remarkably, however, the reason that Mr. O’Brien’s projections did not

take into account the Twin Lakes project is that, according to the evidence before the

Board, Monaco did not inform him of its existence.

[348] A second criticism by Counsel for HRM related to his assumption that

Prince Albert Road was a “major collector.” His predictions with respect to the traffic

impact of the Monaco project were based, in part, upon an assumed annual traffic

volume growth rate of 1%; in turn, the 1% figure was based on his assumption that

Prince Albert Road is a “major collector” street. For example, his report says:

…The 2010 volumes have been used with an annual traffic volume growth rate of 1.0%, which is considered typical of many major collector streets in HRM…

[349] The term “major collector” was used by Mr. Heseltine and Ms. Young in

describing Prince Albert Road, in both their oral and written evidence. For example,

they assert in their first report at least twice that Prince Albert Road is a “major

collector,” making this assertion in the context of interpreting the MPS.

[350] After a somewhat protracted cross examination by Counsel for HRM,

however, Ms. Young acknowledged that Prince Albert Road is not designated as a

“major collector,” in HRM’s planning documents – it is just a “collector.”

[351] The Board finds that the combined result of the evidence of Mr. O’Brien,

and of Ms. Young, is that a key underlying assumption (that Prince Albert Road is a

major collector, and that accordingly, a traffic volume growth rate of 1%, the figure

associated with such collectors, could be assumed), used by Mr. O’Brien in the

preparation of his traffic projections, lacks an adequate foundation.

[352] As a third point, Counsel for HRM noted that Mr. O’Brien’s firm did traffic

measurements on only one day, November 18, 2010.

83

Document: 209348

[353] The measurements were not only done on just one day, but just at two

separate periods during that day (being the presumed morning and afternoon peak

travel period, for a total of about four hours).

[354] Mr. O’Brien’s report is, thus, based upon two limited periods on just one

day.

[355] Among other things, it gives us no information about the nature of traffic

flows on that day at times other than the assumed peaks.

[356] That meant, as Counsel for HRM explored at some length on cross

examination, difficulties in making useful comparisons of some of the other data which

had been placed in evidence, and upon which Mr. O’Brien relied.

[357] For example, Genivar produced on September 30, 2011, a table of “traffic

generation projections.” No measurements, or other data, relating to the subject

property appear in this table. Instead, it is based upon assumed traffic generation rates

which appear in the professional literature. These trip generation rates, however, are

calculated in vehicle trips per day, not peak periods. The data Mr. O’Brien generated

related only to trips per hour during the two assumed peak periods, i.e., it did not show

estimated vehicle trips per day.

[358] As a fourth and final point, the Board will touch on one criticism by HRM’s

Counsel in relation to the traffic evidence, to which it has ultimately decided to give no

weight at all. Counsel for HRM, in the course of cross examination, cast some doubt on

the 1% figure itself, at least with respect to whether Mr. O’Brien had in the past

expressed a figure of 1%, or of 2%.

84

Document: 209348

[359] As the Board has already noted, Mr. O’Brien’s report refers to a figure of

1%. Counsel for HRM points out, however, that the minutes of the public information

meeting held at Alderney School on May 4, 2011, state that Mr. O’Brien told those

present that he expected traffic counts to increase by “…approximately 2% per year.”

[360] Minutes can, of course, be in error. However, the day after the meeting, a

member of the public (whose name was redacted) sent an email to Mr. Dickey which

refers to an “assumed 2% per year increase” as having been mentioned at the

information meeting.

[361] Further, on June 14th , five weeks after the meeting, Mr. Dickey himself

sent an email in which he said:

It has been determined that Prince Albert Road has ample capacity to handle traffic volume growth over the long term which is presumed to be 2% per year…

[362] Counsel for HRM combines her stated concerns with respect to accuracy

of the purported growth rate of 1% with concerns about the Twin Lakes project (a

concern which the Board does share, and which it has already discussed, above).

[363] The Board considers that the evidence pointed to by Counsel for HRM with

respect to Mr. O’Brien having referred to a 2% figure, rather than 1%, at the public

information meeting, does provide some basis for concluding that a 2% figure may

indeed have been used.

[364] The Board has, however, concluded that such a use of a figure of 2% is

irrelevant to the likely accuracy, or inaccuracy, of Mr. O’Brien’s report. The reason is

that – even if the Board were to accept that Mr. O’Brien did refer to a 2% figure at the

public information meeting – the meeting in question occurred on May 4, 2011. Mr.

O’Brien prepared his report several months prior to that meeting, on December 3, 2010.

85

Document: 209348

His report does contain the 1% figure – a figure which he confirmed verbally in the

course of his evidence. Even if he did misstate the growth rate as 2%, as opposed to

1%, at the public information meeting, the 2% figure was not used by him in developing

the conclusions which appear in his December 2010 report.

[365] Accordingly, the Board considers that – at most - the discrepancy pointed

to by Counsel for HRM suggests there is evidence that people at the public information

meeting may have been misinformed about the assumed growth rate that Mr. O’Brien

was actually using. The Board does not, however, see this – even if it were to assume

it to be a fact – to be in any way determinative of the outcome, and the Board accords

no weight to it.

5.10.6.3 Shadows

[366] As the Board has noted previously, Monaco retained Robert T. LeBlanc to

provide a shade study report to be included in Monaco’s application to HRM. In his

report of June 20, 2011, Mr. LeBlanc summarized his conclusions as follows:

The results of the shade study demonstrate fairly minimal impacts of shade along Prince Albert Road and the adjacent properties. The most heavily impacted areas are affected during the winter solstice, when residential properties along Lakeview Point Road will be impacted for less than an hour during the earliest hour of daylight, and the intersection of Prince Albert Road and Highway 7, which will be cast in shadow for approximately 4.5 hours during the middle of the day.

[367] Mr. Dickey accepted the LeBlanc report, and relied on it in his report to

Council of December 15th, which was discussed by Harbour East Community Council at

its meeting on January 17th. He described the matter of shadows being created by the

proposed building as:

…another measure by which compatibility can be measured, although HRM only considers this issue relative to potential for impacts on public lands and not on private property.

86

Document: 209348

[368] While Mr. Dickey was satisfied with the LeBlanc report, Counsel for HRM,

in the course of the present proceeding, directed various criticisms at it.

[369] Much, if not all, of the criticisms on this point made by Counsel for HRM in

her closing written submissions went essentially unrebutted in the lengthy reply

submissions filed on behalf of Monaco – although Counsel for Monaco did note,

correctly, that HRM and the Intervenors had questioned the shade study without

supplying expert evidence of their own.

[370] Of the points raised by Counsel for HRM, the Board will refer to only three

specifically.

[371] First, as the Board previously noted in the “Facts” section above, Mr.

LeBlanc produced two versions of his report. He sent a report to Mr. Maskine dated

June 15th, which Mr. Maskine sent to Mr. Dickey, identifying it as a “draft.” On June

20th, Mr. LeBlanc submitted a new version of his report, which makes no reference to

the June 15th version, and which adds a section entitled “Shade Potential.” The section

in question contains a comparison of potential versus actual sunshine for Halifax. It

notes that, in the winter, Halifax is, on average, overcast 75% of the time. Therefore,

says Mr. LeBlanc, there is only a 25% chance that there will be the sunlight necessary

for a building to even be able to cast a shadow.

[372] Counsel for HRM characterizes the addition of this section of Mr. LeBlanc’s

report as:

…an attempt to lessen the impact of the study results.

The Board, on the balance of probabilities, agrees.

[373] Mr. LeBlanc’s added section points to the fact that Halifax-Dartmouth tends

to have a relatively large amount of overcast weather. The Board interpreted the thrust

87

Document: 209348

of this part of Mr. LeBlanc’s evidence as being, in essence, that if one already has

relatively little sunshine in comparison to many other places, as is the case for Halifax,

the loss of some more won’t matter very much.

[374] Counsel for HRM cross examined Mr. LeBlanc on this point. In the course

of that examination, the Board saw Mr. LeBlanc as acknowledging that the reverse of

his argument could also be true – that if people live in an area with relatively little

sunshine, they might wish to protect what little they do have from the adverse effects of

shadows generated by a building.

[375] Second, it is not uncommon (at least in the Board’s experience) for shade

studies to include computer-generated video animations. Among other things, these

enable the observation of the continuously varying impact of shadows from a proposed

building, as these vary both by time of year and time of day. As Counsel for HRM

pointed out, however, the shade study in the present proceeding did not involve a

continuous video animation, but only “still” snapshots.

[376] It was Mr. LeBlanc’s opinion that this approach was adequate.

[377] The Board, however, concluded from the evidence that different and other

buildings and topography could be affected in different ways by shadows during the

period outside the shapshots.

[378] Third, Mr. LeBlanc, in doing his study, ignored the impact of surrounding

vegetation, which the report acknowledged can “…cause significant shade impacts.”

5.10.7 Population Densification; Opportunity Sites

[379] The Board now turns to two additional matters, population densification and

opportunity sites, concepts found principally in the RMPS.

88

Document: 209348

[380] The Board has chosen to deal with these topics here (subsequent to its

discussion of compatibility under DMPS Policy IP-1 (c)), rather than in the earlier portion

of “Analysis and Findings” which was focused principally upon the RMPS, as a matter of

convenience, and of clarity: many of the comments made by the Board in relation to IP-

1(c) (and, in particular, the matter of compatibility) may be dealt with more briefly at this

stage in the proceeding.

5.10.7.1 Population Growth in The Regional Centre: “Population Densification”

[381] The subject property is located within what the RMPS terms the “Regional

Centre”, which comprises all of the Peninsula of Halifax, and Dartmouth inside the

Circumferential Highway.

[382] One of the themes in the RMPS, which is referred to in the introduction to

Chapter 3, entitled “Settlement and Housing,” is the achievement of “a balanced

approach to growth across the Municipality.” One aspect of this policy is to increase

population growth in the Regional Centre. Referring to the Regional Centre, the RMPS

(written in 2006) says:

…approximately 25% of growth will be targeted to occur on the Halifax Peninsula and in downtown Dartmouth, inside the Circumferential Highway…

[383] This population growth “target” was referred to sometimes in the evidence

and submissions before the Board as “intensification,” and sometimes as “densification.”

The latter term, the Board notes, should not be confused with “density,” which

commonly relates to the number of units per square foot of a lot, or the number of units

in a building – although there can be a relationship between the two concepts.

[384] For consistency, and, hopefully, greater clarity, the Board has used in this

decision the term “population densification” in place of “intensification” or “densification.”

89

Document: 209348

[385] Part of the rationale for population densification is the ability to serve more

people with existing infrastructure (for example, water, sewer, transit, etc.).

[386] Population densification may be seen from this perspective, and perhaps

from others, as being at least implicitly a theme of the DMPS as well, even though it

was originally written in 1978. For example, the DMPS provides as follows:

DMPS Policy G-4 It shall be the intention of City Council to investigate the possibilities and options for redevelopment of areas throughout the City to make better utilization of existing services.

[387] Population densification was repeatedly, and extensively, explored in

evidence and submissions.

[388] Mr. Dickey, for example, took the view that the RMPS:

…strongly supports intensification…

[389] The Board concluded that Mr. Heseltine has a particular affinity for this

subject. His firm, STANTEC, along with Gardner Pinfold Consulting Economists, has,

pursuant to a contract they have with HRM, been looking at alternative population

“growth scenarios” in HRM, and the associated costs and benefits of those scenarios.

A principal focus of the study relates to population densification.

[390] Mr. Heseltine has concluded from the data which he and his associates

have gathered that HRM has not (in the years since 2006) achieved the target stated in

the RMPS of having about 25% of the growth occurring in the Regional Centre. At the

time the RMPS was adopted, significantly less than 25% of population growth was

occurring in the Regional Centre.

[391] Even before Mr. Heseltine began his work on the consulting contract, HRM

planning staff had concluded that the population changes in HRM had fallen short of the

target.

90

Document: 209348

[392] Mr. Heseltine, however, has concluded from his research that things are

even worse with respect to achieving the target than HRM staff had surmised.

[393] For example, the Dartmouth portion of the Regional Centre actually lost

population between 2006 (when the RMPS was adopted) and 2011.

[394] Mr. Heseltine is persuaded of the importance of increasing the proportion

of the population in HRM which lives in the Regional Centre. His intense interest in

population densification may be inferred from, among other things, the significant

proportion which the topic takes up in both of the experts’ reports filed with the Board of

which he was an author.

[395] Of the 26 pages in the first Heseltine and Young report (March 29, 2012)

about 10 are focused upon, or related to, this single topic.

[396] The second Heseltine and Young report (prepared May 2, 2012, and stated

to be in reply to Mr. Lloyd’s single report) is 17 pages long, of which, in the Board’s

estimation, more than half is focused upon population densification, using both

explanatory text and extensive tables.

[397] In discussing population densification, the May 2nd report contains wide-

ranging observations, on a variety of diverse topics. For example, it explores changes

in the average number of persons occupying residential units; compares and contrasts

data for HRM with municipalities elsewhere; and offers opinions on such topics as why

population growth has been slowing. At one point, the report expresses the opinion

that:

The critical concern today is that whether citizens are over housed…larger homes consume more energy and create more pollution and greenhouse gases. They also occupy larger properties and create sprawl.

91

Document: 209348

[398] In the view of the Board, the interest of Mr. Heseltine (supported by Ms.

Young) in population densification was also reflected repeatedly in their assertions as to

the importance of population densification in relation to the matter presently before the

Board.

[399] At times, their emphasis on population densification was combined with the

emphasis which Mr. Heseltine and Ms. Young also placed upon the concept of

“opportunity sites” (a concept the Board discusses further, later in this decision).

[400] The Board perceives Mr. Heseltine and Ms. Young, as, at least sometimes

– impliedly, and maybe even explicitly – approaching the portrayal of population

densification as an overriding goal or target of the RMPS and DMPS.

[401] For example, the following written submission by Counsel for Monaco

accurately reflects the Board’s perception of how Mr. Heseltine and Ms. Young saw the

role of population densification in the MPS. He says that Council’s decision to refuse

Monaco’s application:

…serves to defeat the overall goal of the RMPS and the DSPS [DMPS] to densify the Regional Centre…[Emphasis added]

[402] As a further example, in their March report, Mr. Heseltine and Ms. Young,

in referring to the Monaco Property, say:

…it is hard to imagine property better situated to support the density needed to create the liveable transit-oriented environment within walking distance of most daily needs as described in the Regional Plan. [Emphasis added]

Referring then to both population densification and to “opportunity sites,” they assert

that Council had an obligation in relation to the proposed rezoning of Monaco’s

property:

The rezoning request thus should have been viewed as an opportunity that Council was obligated to encourage. [Emphasis added] …

92

Document: 209348

[403] The assertion that Council had an “obligation” related to population

densification, and to Monaco’s proposal, is reflected again in their May report. In it, they

suggest that it was “essential” for Council to take advantage of the opportunity which the

Monaco proposal presented to achieve the “clearly stated goals” of population

densification:

To achieve the clearly stated goals of both the RMPS and DMPS to add dwelling units and increase population in what are now the recognized core areas of HRM, it is essential to consider and take advantage of the opportunities inherent in commercial sites at the edges of residential neighbourhoods such as 307 Prince Albert Road. These properties are clearly the best opportunities to add density in areas that are otherwise depopulating. [Emphasis added]

[404] At times, the Board was left somewhat uncertain as to just how far the

intended thrust of this aspect of the evidence of Mr. Heseltine and Ms. Young was

intended to go.

[405] They are asserting – and the Board has no reason to doubt them on the

evidence before it – that HRM is not meeting its population densification target.

[406] The Board notes first, however, that the reason for this failure, on the

evidence before the Board, is not clear. The phenomenon may be driven by a number

of factors, at least some of which may have little to do with decisions made by Municipal

Council (whether the present one or others) with respect to whether a particular

proposed development may or may not proceed.

[407] Is one to infer that Mr. Heseltine and Ms. Young are asserting that HRM’s

failure to meet its target in the RMPS means that Council had to approve this particular

application by Monaco? On balance, given other aspects of the evidence of Mr.

Heseltine and Ms. Young, the Board thinks that – whatever reasonable inferences might

93

Document: 209348

be drawn from their language as quoted above by the Board – Mr. Heseltine and Ms.

Young did take a broader view of the MPS.

[408] Nevertheless, if indeed they were proposing that population densification

“obligated” Council, or made it “essential” for Council, to approve Monaco’s proposal,

the Board sees little basis for this idea in the MPS.

[409] That being said, the Board considers that no reasonable reader of the MPS

could remain oblivious to population densification being one of its “themes,” or planning

considerations. Indeed, on the evidence before the Board, Mr. Dickey pointed to

population densification in his recommendations to Council respecting the Monaco

application; further, Council had, on its own initiative, contemplated population

densification (just before it was officially adopted) in the discussions which led to its

approval of Twin Lakes.

[410] No MPS has just a single theme, however – be it population densification,

or anything else. Instead, the policies found in municipal planning strategies address,

as the Court of Appeal put it in Heritage Trust 1994:

…a multitude of planning considerations…

[411] Having read the provisions of the RMPS and the DMPS, and taken into

account the factual circumstances of the present proceeding, the Board finds that there

are certainly other themes within the MPS, including, in particular, compatibility (in its

various aspects), which are also relevant – in addition to population densification – in

determination of this appeal.

5.10.7.2 Opportunity Sites

[412] The concept of “opportunity sites,” found in the RMPS, was the subject of

extensive dispute in the proceeding.

94

Document: 209348

[413] The Board will here explore the concept relatively briefly (at least in

proportion to the large amount of time and effort, both in written and oral evidence and

submissions, which surrounded the topic in these proceedings).

[414] The RMPS expressly identifies a number of “opportunity sites,” including

some in the Dartmouth sector of the Regional Centre (being the area inside the

Circumferential Highway, which includes the subject property). Neither the subject

property, nor any properties near it, appear in the list of opportunity sites within the

Regional Centre which appears at schedule DM 4, pg 157. Further, they do not appear

on Map 6 of the RMPS which is entitled “Opportunity Sites within Regional Centre.”

[415] The term “opportunity site,” according to the RMPS, is one which may be

applied to vacant or underused sites in HRM. Medium or high-density uses may be

permitted on opportunity sites. As the Board will discuss further in this section, it does

not see the references in the RMPS to “opportunity sites” as providing a clear definition,

or criteria, as to what kinds of properties are opportunity sites, and which ones not.

[416] Mr. Heseltine and Ms. Young claim that the subject property is an

“opportunity site” or, at a minimum, the equivalent of one. Their evidence suggests that

a practical consequence of this status is that the subject property is entitled to the

development of medium to high density uses.

[417] Mr. Lloyd, and Counsel for HRM, assert just as firmly that it is not an

opportunity site, but is instead in an established neighbourhood in which only low to

medium density residential uses are possible.

[418] Counsel for Monaco suggested that “the Board must decide” between the

two opposing points of view. While the Board has found the opinions of both sets of

95

Document: 209348

experts to be helpful in certain aspects, the Board is not inclined to adopt the opinion of

either opposing group as being necessarily definitive.

[419] The RMPS contemplates a special planning process for opportunity sites,

known as the “opportunity sites functional plan.” The RMPS contains nine chapters.

Chapter 3, which is entitled, “Settlement and Housing,” contains nine separate sections,

one of which, Section 3.8, is entitled, “Functional Plans.” It contains references to two

different types of functional plans, one being in relation to affordable housing, and the

other in relation to opportunity sites.

[420] The status of functional plans is referred to in Chapter 1 of the RMPS

(entitled “Introduction”), in s. 1.7 entitled “Municipal Planning Document Structure.” It

says:

1.7 MUNICIPAL PLANNING DOCUMENT STRUCTURE … (4) Functional Plans The purpose of a functional plan is to guide the management of the Municipality as defined in the Municipal Government Act. They do not represent land use policy but rather HRM’s intent to create detailed management guides for setting budgets for programs, services and facilities consistent with the implementation of this Plan. Functional Plans will also guide HRM in the ongoing management of strategic initiatives, partnerships and demonstration projects useful to seeing the full potential of this Plan realized over time. [Emphasis added]

[421] On cross examination by Counsel for HRM, Ms. Brown, Ms. Young

acknowledged that functional plans are not land-use policy.

[422] Section 3.8.1 of the “Settlement and Housing” chapter, which is entitled

“Opportunity Sites Functional Plan” says, in its opening sentence:

Within the Regional Centre, there are a number of vacant or underused sites

[423] RMPS Policy S-39, which appears at the end of s. 3.8.1, says:

S-39 HRM shall prepare an Opportunity Sites Functional Plan to assist the Community Visioning exercise and the preparation of secondary planning strategies described in Policy S-38 and to facilitate the development or redevelopment of opportunity sites within the Regional Centre and other locations.

96

Document: 209348

The RMPS also refers to:

…creating and maintaining a comprehensive database of opportunity sites. [424] The RMPS points to the identification and development of opportunity sites

through new secondary planning strategies. Very broadly, the process contemplated by

the RMPS includes community “visioning,” with the possible subsequent adoption of

new secondary planning strategies (such as the DMPS) by Council which reflect that

visioning. These new secondary planning strategies may identify particular opportunity

sites, and point to how they are to be developed.

[425] While it seems, from the limited evidence before the Board, that some

visioning exercises may have occurred, HRM has not moved on to the creation of new

secondary planning strategies, including the identification of any new opportunity sites.

[426] While Mr. Dickey did not expressly address opportunity sites in his report,

he did in his oral testimony state his views with respect to opportunity sites on the

subject property, when he was questioned about it by Counsel for the various parties.

[427] Mr. Dickey acknowledged that the intent of the RMPS was that a functional

plan for opportunity sites was supposed to have been developed, but that this had not

happened. Saying (on cross examination) that this was because of a lack of resources,

he suggested that the delay has meant that HRM’s planning staff now see themselves

as being required to improvise their approach to opportunity sites:

…we’re finding ourselves having to, you know, take some interpretations out of the Regional Plan because frankly we cannot afford to wait five, ten, 15 years to get some of these things done.

[428] The position of HRM counsel (based, in part, upon the evidence of Mr.

Lloyd) is succinctly stated in a written submission by its Counsel:

97

Document: 209348

It is submitted that sites must be identified as “opportunity sites” by Council through the Community Visioning Exercise and Secondary Planning strategy process before they can be considered to be “opportunity sites.” It is not for staff nor consultant planners to decide on their own that a particular site within the Regional Centre ought to be an “opportunity site” and therefore ought to attract a mix of medium to high density residential uses. … While the proposed site certainly exists within the "Regional Centre" it is not an "opportunity site.” Instead, it is submitted that the proposed site is in an "established neighbourhood" and therefore pursuant to Table 3.1 of the RMPS, the land use shall be "low to medium density residential uses" on this site. This is consistent with the RMPS statement at page 45 and policy S-11…

[429] As the Board has already noted, the subject property is not identified as an

opportunity site in the RMPS. Nevertheless, Monaco asserts that the subject property

either:

• is an opportunity site; or

• should be considered to be at least equivalent to one.

[430] With respect to the first position (that the subject property is an opportunity

site), Monaco appeared sometimes to be asserting that the property not only meets the

criteria of an opportunity site, but is one within the full meaning of the RMPS.

[431] As an illustration of this position, the Board refers first to written

submissions to the Board made on behalf of Monaco, which say, in part:

…the Prince Albert site is an “opportunity site” within the meaning of the RMPS. [432] In similar vein, Mr. Heseltine and Ms. Young, in their second planning

report, say that:

The site also meets the RMPS definition of an opportunity site. [433] In taking the first position (i.e., that the subject property is indeed an

opportunity site) Monaco was, in the opinion of the Board, in effect saying the process

of visioning, etc. (including its various elements of public participation, as outlined in the

98

Document: 209348

RMPS) need not be done for a property to be an “opportunity site” within the full

meaning of the term, as used in the RMPS.

[434] In taking their second position, Monaco was, at a minimum, saying that the

property meets what they assert to be the “criteria” for an opportunity site (absent, of

course the visioning, etc., process) and that it accordingly deserves to be treated as

one.

[435] Mr. Dickey at least at certain points in his evidence, did refer to the subject

property as an opportunity site. In explaining his point of view, however, he appeared to

be suggesting that the references to “opportunity sites” in the RMPS were more in the

nature of a useful guide for staff, and for Council, in making planning decisions. It:

…allows a practical interpretation by staff. It’s one criterion or site evaluation criteria that can be used in the staff report.

[436] On cross examination by Counsel for HRM, Mr. Heseltine and Ms. Young

said that RMPS s. 3.8.1 sets out, in their view, the “criteria” for opportunity sites. They

refer to a number of characteristics, including:

• the subject property is an underused site;

• the subject property is adjacent to “other vacant lands”;

• the subject property is located on a “major transportation route;”

• it has existing municipal services with excess capacity;

• the street is able to support the increased traffic associated with the proposed development.

[437] Near the beginning of this part, the Board referred to its view that RMPS s.

3.8.1 does not contain anything like a precise definition of the term “opportunity site.”

For example, RMPS s. 3.8.1 does not contain a list of criteria, such as those found in

DMPS Policy IP-1(c), or RMPS Policy IM-15.

99

Document: 209348

[438] Even if it did, the Board has previously noted its view that, even in the latter

two provisions, the criteria stated often have a strongly subjective component.

[439] As but one example of what the Board sees as the somewhat amorphous

concept of opportunity sites, RMPS s. 3.8.1 refers to already-identified opportunity sites

and notes that some are located along major transportation corridors, and outside

established low-density neighbourhoods. It also, however, notes that some opportunity

sites are located “in established neighbourhoods.”

[440] In short, opportunity sites can be outside established neighbourhoods – but

they can also be inside them.

Conclusion re Opportunity Sites [441] The Board considers that, even taking the minimum position advanced on

behalf of Monaco, its experts and Counsel were asserting that the subject property

demonstrably meets all of the so-called criteria for opportunity sites. And they saw this

as entitling the property to have medium to high density development on it.

[442] The Board notes here, as an aside, that Monaco’s development, if built,

would indeed be high density: in fact, it would exceed, by a significant margin, the

highest density allowable under the R3 and R-4 zoning by-law which controlled

apartment building construction in Dartmouth until the development agreement

requirement was adopted in 1991 (as is discussed in more detail in the “Development

Agreement” part, below).

[443] The Board further inferred from some of Monaco’s evidence and

submissions that the purported status of the subject property as an opportunity site

100

Document: 209348

meant (from their point of view) that Council’s decision not to approve Monaco’s

application failed to reasonably carry out the intent of the MPS.

[444] With respect, the Board does not agree. The Board’s reasons for this

include its view that Monaco’s so-called “criteria” for an opportunity site are not nearly

as clear cut as Monaco suggests. In the view of the Board, while various characteristics

are referred to in RMPS s. 3.8.1, these in some ways point to the possibility of

opportunity sites being in a wide range of quite diverse settings.

[445] Further – just as with DMPS Policy IP-1(c) (discussed above) and DMPS

Policy IP-5 (discussed below) – the Board considers that the meaning of some of the

terms used in the MPS in relation to opportunity sites is subjective. The Board

considers that – reading the MPS as a whole – deciding whether something is to be an

opportunity site or not will often involve the balancing of interests (something Council

should, or may be required to, do, under an MPS) such as – looking at the relevant

circumstances of the present application – the presence of abutting residential areas,

the presence of Lake Banook with its active boating competitions, traffic, population

densification, etc.

[446] Further, the Board considers that the processes (related to “visioning,” etc.)

described in RMPS s. 3.8.1 (and related provisions) contemplate that members of the

public are to be given the opportunity to express their opinion with respect to the

identification of opportunity sites. To put it another way, the Board sees RMPS s. 3.8.1

as not simply mentioning some characteristics which opportunity sites might have, but

also stating steps – in which public involvement must occur – to be taken in the

identification of such sites.

101

Document: 209348

[447] The Board concludes the concept of opportunity sites does not create a

requirement – in the context of the MPS, and the circumstances of the present

proceeding – that Council approve the Monaco project. More specifically, the Board

considers that the fact that Council did not, expressly or impliedly, identify the subject

property as an opportunity site is not something which can reasonably be seen as a

failure to carry out the intent of the MPS.

[448] The Board does, however, conclude that the matters referred to in RMPS

s. 3.8.1 do point, at least generally, to characteristics of opportunity sites to which

Council might have regard in deciding whether it should grant a rezoning – or indeed

whether it should approve a development agreement.

5.10.8 Conclusion with Respect to Council’s Refusal to Rezone

[449] The burden of proof in this proceeding rested on Monaco to establish, on

the balance of probabilities, that Council’s decision to refuse Monaco’s application to

rezone the subject property fails to reasonably carry out the intent of the Municipal

Planning Strategy. In the judgment of the Board, Monaco failed to meet that burden.

[450] The Halifax Charter, like the Municipal Government Act before it,

specifically identifies municipal council as the primary authority for planning in HRM.

[451] In keeping with this authority, the Halifax Charter limits the grounds for an

appeal to the Board of a decision by Council in relation to zoning applications. In the

context of the present proceeding, the Act says that the Board must not interfere with

Council’s decision to refuse the rezonings requested by Monaco, unless the Board

determines that Council’s decision does not reasonably carry out the intent of the MPS.

102

Document: 209348

[452] If Monaco can show, on the balance of probabilities, that Council’s decision

does not reasonably carry out the intent of the MPS, the Board must reverse Council’s

decision. If, however, the Appellant fails to meet this standard of proof, it is the Board’s

duty to defer to Council’s decision.

[453] As the Board has already discussed above, it sees a variety of different

planning considerations in the MPS which relate, to one degree or another, to Monaco’s

application to have this property rezoned.

[454] This abundance of themes in an MPS is not unusual; to the contrary, all

municipal planning strategies, to one degree or another, exhibit that characteristic, as

the Court of Appeal has on a number of occasions, pointed out. As the Board has

noted previously, Heritage Trust 1994 states:

Planning policies address a multitude of planning considerations…

The planning considerations apparent in the present proceeding include, among others,

compatibility, population densification, and opportunity sites.

[455] The RMPS, in its references to population densification, sets targets for

increasing the population in the most urban area of HRM, and the subject property lies

in that area. Monaco points out that HRM has not achieved its target in the six years

since the target was set. Monaco also points to RMPS provisions relating to so called

“opportunity sites,” in which, among other things, medium to high-rise apartment

buildings may be built. While these themes are certainly of importance, all parties

likewise agreed that other provisions in the MPS are also relevant.

[456] In particular, MPS provisions relating to compatibility are of importance in

this particular proceeding.

103

Document: 209348

[457] DMPS Policy IP-1(c) contains policy considerations which the Board has

explored in detail above, and which the Board sees as relating, in a variety of ways, to

aspects of the idea of compatibility.

[458] The MPS identifies a number of aspects which can be included in having

regard to compatibility. The Board sees not just DMPS Policy IP-1(c), but other

provisions within the MPS as well, as suggesting that compatibility can include such

things as use, bulk, and scale of a proposed building, when seen in the context of, for

example, existing buildings in the area of the proposed development.

[459] In the present proceeding, the area around the proposed development

includes – as Monaco emphasizes – some commercial activity. Moreover, the subject

property fronts, on one side at least, on Prince Albert Road which – while not a “major

collector” as claimed by the experts testifying on behalf of Monaco – is nonetheless a

street of some significance. Monaco suggests that location of a high-rise (and high-

density) building on the subject property, on such a street, will help further HRM’s

population densification goals.

[460] However, it is also true that the site for this proposed 15-storey

development is only a few hundred feet from the shore of Lake Banook, an

internationally known venue for competition in racing kayaks and canoes. More than

once in the past, concerns about the height of buildings near Lake Banook have been

raised, and have led to either a proposed project being defeated at Council, or simply

not advanced.

[461] Moreover, only a few years ago, Council imposed a 35-foot height

restriction around the perimeter of the Lake. The subject property stands outside that

104

Document: 209348

height restriction, but only just – the subject property is on a corner, and the land

opposite it (on both streets) is inside the height-restriction area.

[462] One side of the subject property, then, abuts a 35-foot height-restriction

area; the opposite side of the subject property abuts an extensive already-existing low-

rise residential neighbourhood of one to two storeys, on Glenwood Avenue. Not only

does that development touch the subject property, but part of it is incorporated in the

subject property, i.e., the subject property includes a lot which formerly was a residential

lot.

[463] Further, across Prince Albert Road from the subject property, and inside

the height-restriction area, lies additional low-rise residential development.

[464] While Monaco points to high-rise buildings existing in Dartmouth, the Board

has found that none of these are in the area of Prince Albert Road in which Monaco

proposes to build its tower. The highest buildings anywhere on Prince Albert Road, or

on the side streets leading up from it, are five storeys in height and the vast majority are

much lower than that.

[465] The decisions of the Court of Appeal with respect to planning matters have

repeatedly emphasized the point that not only do municipal planning strategies contain

a multitude of planning considerations, but some of these will inevitably be “in conflict”:

Heritage Trust 1994.

[466] Accordingly, the planning decisions which must be made by a municipal

council – to approve a development, or to refuse it – not infrequently:

…involve compromises and choices between competing policies.

[Heritage Trust 1994]

105

Document: 209348

[467] Where decisions involving such compromises and choices must be made,

the Court has stated that it is:

…the elected and democratically accountable council [which] may be expected to make a value judgment.

[Archibald, para 24]

The task of making these value judgments becomes particularly relevant when the MPS

involves, as the present one does, the presence of terms which (quite properly) do not

have a single, fixed, precise meaning, but instead can be seen as having a subjective,

or relative, component.

[468] As the Board has explored in some detail earlier in this decision, it sees the

provisions in the MPS which are of particular relevance to this proceeding as containing

an abundance of such subjective terms, e.g., “compatibility,” “neighbourhood,” “area,”

“bulk,” “scale.”

[469] In the view of the Board, the Court of Appeal’s direction is that the Board

should, in such matters:

…defer to the Council’s compromises of conflicting intentions in the MPS…

[Archibald, para 24]

[470] The Court cautions, however, that such deference to Council’s task of

making:

…difficult choices between conflicting policies is not a license for Council to make ad hoc decisions unguided by principle.

[Archibald, para 24]

Thus, deference is to be shown to Council’s decisions, but only if those decisions can

be seen as reasonably carrying out the intent of the MPS. As the Board has already

previously noted, the Board sees Council’s decision in this instance as being entirely

consistent.

106

Document: 209348

5.11 Issues 2 and 3: Development Agreement 5.11.1 Issue 2: Is the Appeal Before the Board of the Re-Zoning

Application Only, or of the Re-Zoning Application and the Development Agreement Application? For reasons explained in the decision, the Board has decided to assume, without finding, that it has jurisdiction to hear the appeal of the development agreement application (Issue 3), in addition to the rezoning application (Issue 1).

[471] Monaco says that its appeal is of both the refusal of the applications to

rezone, and of the application for a development agreement. HRM says the appeal can

only be of the rezonings.

[472] Both for the purposes of this decision, and for the purposes of any appeal,

the Board will here summarize its view of what it sees as the relevant facts surrounding

this issue.

[473] Up until January 17th, HRM staff repeatedly referred, often in some detail,

to a process which would involve the completion of two separate steps. In the first step,

the rezoning of the two lots would be approved by Council, and go through any

subsequent appeal process. Only once this first step (Step 1) was complete would the

development agreement (Step 2) be dealt with by Council.

[474] As an example of such statements by HRM staff, on May 24, 2011 (almost

eight months before Council’s January 17th meeting), Mr. Dickey described Monaco’s

application this way:

The development agreement cannot be approved, however, unless Council first approves the rezoning [from C-2 to R-4] AND if there are no appeals of the rezoning. If the R-4 Zone becomes effective, then Council would make a decision on the development agreement request. [Capitalized emphasis in original]

[475] Likewise, in his December 15th staff report to Council, Mr. Dickey describes

the same two-step process.

107

Document: 209348

[476] This was not a new process devised for the Monaco application, but one

which has, it seems, been used by HRM for 15 years.

[477] The Board concludes that the approach taken by HRM staff arose from the

view that Council cannot legally approve a development agreement (Step 2) until the

zoning needed for such an agreement is in place, and is no longer subject to an appeal

(Step 1).

[478] In keeping with this, it was staff’s intention that the rezoning part of

Monaco’s application would first have to go through Council’s process and be approved.

This was Step 1.

[479] During Step 1, however, full information about the development agreement

(Step 2) would also be supplied, and full discussion of it would occur. It would be

discussed by Council, and by members of the public in the course of a public hearing

relating to the rezonings.

[480] For greater certainty, the Board finds that it was the intent of HRM’s

planning staff that the public hearing at Step 1 would relate not just to the rezonings, but

to the development agreement in Step 2.

[481] In Step 1, however, while Council would discuss both the rezoning and

development agreement questions, it would decide only the rezoning question.

[482] If Council approved the rezoning, the development agreement application

would be brought back to Council after the appeal period had lapsed (or, if an appeal

had occurred, after any appeal had been dismissed). The application for the

development agreement would then be dealt with, but in a severely truncated process,

108

Document: 209348

in which review of the development agreement would involve only Council: there would

not be another public hearing.

[483] Further, at this final stage, HRM would not advertise the fact that Council

was about to consider the development agreement, and to decide whether to approve it

(although if Council did approve it, that decision would be advertised, so as to give

notice for purposes of appeal).

[484] Council’s decision to approve the development agreement, then, would not

occur until the end of Step 2. The Board concluded from the evidence, however, there

was a strong assumption that if Step 1 approval (the rezoning) occurred, Step 2

approval (the development agreement) would automatically occur, unless a successful

appeal of the rezoning intervened.

[485] Among other things, the Board sees the inference that Council’s approval

at Step 2 was expected to be automatic - almost a mere formality - as being consistent

with a hypothetical timeline for the processing of Monaco’s application, which appears in

an E-mail from Mr. Dickey. Mr. Dickey says that the:

…rezoning has to be effective before DA [the development agreement] can be formally approved. [Emphasis added]

[486] Up until January 17th, then, HRM’s statements to Monaco and others about

the process clearly and consistently described a process which involved two separate

steps.

[487] On January 17th, 2012, however, when Council defeated the motion to give

first reading to Monaco’s application, the words of the motion referred not just to the

rezoning application (Step 1), but to the development agreement application (Step 2) as

well:

109

Document: 209348

MOVED by Councillor Fisher, seconded by Councillor Karsten, that Harbour East Community Council give Notice of Motion to consider both the proposed rezonings and development agreement as set out in Map 3 and Attachment A of the December 15, 2011 report, and schedule a Public Hearing.

[488] On January 19th, the Legislative Assistant for Harbour East Community

Council wrote a letter to Monaco. In it, she states the complete Motion quoted in the

previous paragraph, and then goes on to say that “a decision of Council” can be

appealed to the Board.

[489] Monaco says this was a rejection of both the rezoning and the

development agreement application; Counsel for HRM says it was just a rejection of the

rezoning application.

[490] Counsel made extensive submissions (written and oral) to the Board on

this subject, at more than one stage in the proceedings.

[491] From Monaco’s perspective, Council’s decision – in the very language

used in the Motion on January 17th, and in the letter from the legislative assistant on

January 19th - was an explicit refusal of not just the rezoning, but the development

agreement. The Motion itself says it was:

…to consider both the proposed rezonings and development agreement.

Thus, says Monaco (as the Board summarizes its argument):

• the Motion, in its literal words, included both the rezonings and development

agreement;

• Council refused to give first reading to the Motion;

• therefore Council refused not just the rezonings, but the development agreement

as well;

110

Document: 209348

• therefore, the rezonings and the development agreement, being decisions by

Council, are properly the subject of this appeal,

• therefore, the Board would have had jurisdiction (if it were to have agreed with

Monaco’s arguments on the merits, with respect to both the rezonings and

development agreement) to, at the conclusion of this proceeding, order both the

rezonings and the approval of the development agreement.

[492] In reply, Counsel for HRM says that this appeal can only relate to the

refusal of the rezonings.

[493] One of her arguments relates to an assertion that a “deemed refusal”

occurred. In essence, HRM Counsel asserted that s. 225(6) of the Halifax Charter

applies. It states:

Where the Council has not, within one hundred and twenty days after receipt of a completed application to amend a land-use by-law referred to in subsection (1), commenced this procedure required for amending the land-use by-law by publishing the required notice of public hearing, the application is deemed to have been refused.

[494] While the Board has reflected on this argument at some length, it does not

find it helpful, and will not explore it further in this decision.

[495] Counsel for the Appellant asserts, and the Board agrees, that what was

done here by HRM was not a deemed refusal, but an actual one.

[496] The Board sees HRM’s principal position to be, in essence, that – whatever

the literal words of HRM’s own motion and letter – Council’s refusal could only have

been of the rezonings, and not of the development agreement, and therefore must have

been only of the rezonings.

[497] In support of this, HRM points to its staff having repeatedly said that the

zoning approval decision would be done first.

111

Document: 209348

[498] Counsel for HRM also points to, and in essence agrees with, the view of

the legislation put forward by its staff, which is that a decision on the development

agreement could not legally be made until a decision to permit the rezoning had been

made.

[499] The Board sees a principal argument in favour of HRM’s position as being

simply this: if a decision on the development agreement could not legally be made until

the decision on the rezoning was complete, it follows that the “decision” with respect to

the development agreement was no decision at all. Accordingly, it would not properly

be subject to appeal, and the Board should dismiss any appeal in relation to it.

[500] The decision by the Nova Scotia Court of Appeal in Halifax County v.

Maskine, [1992], NSJ No. 292, was referred to briefly in submissions. In the view of the

Board, Maskine, and the interpretation which the Board has repeatedly placed upon it,

is of relevance to the present issue. As a matter of interest, the Board notes that

Maskine, decided in 1992, involves the same developer, Tony Maskine, who is the

principal of Monaco.

[501] For many years, the Board has interpreted Maskine as meaning, in

essence, that the Board (in appeals such as the present one) lacks any jurisdiction with

respect to how Council has conducted itself.

[502] More particularly, the Board has – under, successively, the Planning Act,

the Municipal Government Act, and now the Halifax Charter – interpreted Maskine as

saying that the Board has no jurisdiction to reverse a decision by a municipal council on

the ground that the council in some way misconducted itself. For example, such alleged

misconduct might relate to procedural fairness, or some other alleged breach of the

112

Document: 209348

common law or legislation. Thus, in Midtown, the Board remarked that it had defined,

and would continue to define, its task:

...as being solely that of determining whether or not the approval, or refusal to approve, by a council is one which can be seen as reasonably consistent with the intent of the M.P.S., or not. How council got to that decision ‑ e.g., whether by an allegedly bad procedure or a good one, or by an allegedly bad thought process, or a good one ‑ is a matter which the Board (applying its interpretation of Maskine) has repeatedly stated to be irrelevant. The Board has regarded such alleged errors, and the granting of a remedy, if any, to be a matter solely within the jurisdiction of the Nova Scotia Supreme Court, and lying outside the jurisdiction of the Board.

[Midtown, para 129]

[503] Under this generally-accepted interpretation of Maskine it matters not

whether Council legally had the authority to make any decision in relation to the

development agreement until after it had dealt with the zoning application. The only

thing that matters is whether Council’s refusal to approve the development agreement

fails to reasonably carry out the intent of the MPS.

[504] In referring to this interpretation as “generally accepted”, the Board notes,

as an aside, that Counsel for HRM themselves have repeatedly argued that this

interpretation is correct.

[505] Some other parties in past proceedings, however, have suggested more

than once that the Board’s interpretation of Maskine may be too broad. For example, in

Heritage Trust of Nova Scotia (Re), 2007 NSUARB 122 (“Twin Towers”), Howard

Epstein, MLA, argued that the Board has “over-read” Maskine, and that the Board has

historically taken “…an excessively modest approach…” to interpreting its power.

[506] In the view of the Board, his arguments can be interpreted as meaning, in

effect, that the Board could decide it had no jurisdiction to hear an appeal of a decision

by a municipal council, if it concluded that that the council’s decision was one for which

113

Document: 209348

legislative authority did not exist, i.e., the council itself did not have jurisdiction to make

the decision.

[507] The Board considers that, applying this argument to the present

circumstances, HRM could argue that the Board could find the development agreement

issue to not be properly the subject of an appeal before it. The justification for such a

decision (according to Mr. Epstein’s argument at least) would be that Council had no

authority to make a decision when it did. So if it wasn’t a decision, it couldn’t be

appealed.

[508] In Twin Towers, the Board rejected that argument.

[509] In this discussion of Issue 2, the Board has attempted to canvass the facts

relevant to this issue as thoroughly as possible, and to summarize some of the

applicable legal arguments.

[510] In doing so, however, the Board has been conscious of the fact that its

decision on Issue 1 (with respect to Monaco’s appeal of Council’s refusal to rezone)

renders any determination by it of Issues 2 and 3 unnecessary, unless the Board’s

decision with respect to Issue 1 is successfully appealed. The Board wishes to

minimize the risk that a determination of Issue 2 by it for the limited purposes of this

proceeding might inadvertently create an impediment to future decision making by a

Board in an unrelated proceeding.

[511] Accordingly, the Board will, with respect to Issue 2, simply assume, without

finding, that it has jurisdiction under the Maskine doctrine to hear the development

agreement appeal in the circumstances of the present proceeding.

[512] The Board now turns to Issue 3:

114

Document: 209348

5.11.2 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy? For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses the appeal with respect to the development agreement.

[513] Monaco, on the one side, and HRM and the Intervenors on the other,

disputed – through evidence and submissions – this issue with a vigor at least equal to

that which they had brought to the matter of the rezoning.

5.11.2.1 Provisions in the RMPS and DMPS Dealing with Development Agreements

[514] Under the Halifax Charter (as under the Municipal Government Act), the

test to be applied by the Board in relation to a Council decision in relation to a

development agreement is the same as that which applies to Council decisions in

relation to rezoning, i.e., whether or not it can be shown that a decision of Council fails

to reasonably carry out the intent of the MPS.

[515] The evidence before the Board (including that from all four planners who

gave evidence, three for Monaco and one for HRM and the Intervenors) suggests that

one of the key provisions with respect to development agreements is DMPS Policy IP-5.

This, it will be recalled, is the policy which, in 1991, ended as of right apartment building

developments in Dartmouth, requiring that they now be done by development

agreement.

[516] The introduction to DMPS Policy IP-5 refers to concerns having “recently”

(i.e., in 1991) been expressed about:

…the exterior design, density, concentration, site treatment, massing and traffic issues…

115

Document: 209348

The introduction also notes that, in using the development agreement process:

…public involvement in the evaluation of the proposed development…

would also be permitted.

[517] Policy IP-5 requires, as is usual in such MPS provisions, detailed drawings

and other documentation of various types. It then goes on to say that, in considering

the approval of a development agreement, Council:

Policy IP-5 …shall consider the following criteria: (a) adequacy of the exterior design, height, bulk and scale of the new apartment development with respect to its compatibility with the existing neighbourhood; (b) adequacy of controls placed on the proposed development to reduce conflict with any adjacent or nearby land uses by reason of:

(i) the height, size, bulk, density, lot coverage, lot size and lot frontage of any proposed building; (ii) traffic generation, access to and egress from the site; and (iii) parking;

(c) adequacy or proximity of schools, recreation areas and other community facilities; (d) adequacy of transportation networks in, adjacent to, and leading to the development; (e) adequacy of useable amenity space and attractive landscaping such that the needs of

a variety of household types are addressed and the development is aesthetically pleasing;

(f) that mature trees and other natural site features are preserved where possible; (g) adequacy of buffering from abutting land uses; (h) the impacts of altering land levels as it relates to drainage, aesthetics and soil stability

and slope treatment; and (i) the Land Use By-law amendment criteria as set out in Policy IP-1(c). (As amended by By-law C-692, Dec. 4, 1991)

[518] The Board will first note that it sees DMPS Policy IP-5 (b) as containing

similarities to RMPS Policy IM-15(b), which was adopted 15 years later.

[519] RMPS Policy IM-15(b) requires Council to, in part, consider:

In considering development agreements or amendments to land-use by-laws, in additional to all other criteria as set out in various policies of this plan, HRM shall consider the following: (b) that controls are placed on the proposed development so as to reduce conflict with any adjacent or nearby land uses by reason of: (i) type of use; (ii) height, bulk and lot coverage of any proposed building; (iii) traffic generation, access to and egress from the site, and parking;

116

Document: 209348

[520] Thus, both DMPS Policy IP-5(b) and RMPS Policy IM-15(b) include

reference to “height,” “bulk,” “lot coverage,” and “traffic generation and parking.” Both

refer to reducing “conflict” with “adjacent or nearby land uses.”

[521] Policy RMPS IM-15 is not referred to in the experts’ reports filed with the

Board, but Mr. Dickey acknowledged, on cross examination by Counsel for HRM, that it

is relevant to the present proceeding.

[522] He considered, however, that the essential matters appearing in the RMPS

IM-15, in the context of the present proceeding, are in substance dealt with in DMPS

Policy IP-5. The Board agrees.

[523] Moreover, the Board considers the fact that there are a number of items in

common between the RMPS and DMPS policies in question, and that they are specific,

lends still more weight to those items.

[524] The Board notes first the reference to the term “existing neighbourhood” in

IP-5(a), and to “adjacent or nearby land uses” in IP-5(b). These are not defined terms,

and as the Board has discussed elsewhere in this decision, the meaning of the word

“neighbourhood” has considerable scope. So, in the Board’s judgment, do “adjacent” or

“nearby” land uses.

[525] The Board now turns to DMPS Policy IP-5(i), which specifically

incorporates DMPS Policy IP-1(c) into DMPS Policy IP-5. It will be recalled that DMPS

Policy IP-1(c) is an important policy in relation to rezoning, but also applies to

development agreements. It requires Council to have regard to, among other things:

… (2) that the proposal is compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal;

117

Document: 209348

(3) provisions for buffering, landscaping, screening, and access control to reduce potential incompatibilities with adjacent land uses and traffic arteries.

[526] The Board sees commonalities of language, and of concepts, in the three

policies just referred to (DMPS Policy IP-5; DMPS Policy IP-1(c); and RMPS IM-15).

For example, one finds the word “bulk” four times; the word “height” three times; the

word “scale” (which, in the Board’s opinion, can in planning matters, in varying degrees,

incorporate height and bulk) twice; “buffering” twice; and “compatibility” or

“incompatibility,” twice.

[527] In the view of the Board, such terms as “bulk,” “height,” “scale,” “buffering,”

and “compatibility,” etc., are – in the context of the MPS – “relative” or “subjective”

terms.

[528] The subjective nature of these terms is, in the view of the Board,

emphasized still more when one considers that the word “adequacy” begins both DMPS

Policy IP-5(a) and IP-5(b).

[529] On the matter of the significance of the word “adequacy,” the Board

considers the following excerpt from the cross examination of Mr. Heseltine and Ms.

Young, by Counsel for HRM, Ms. Brown, to be of relevance. She drew their attention

specifically to DMPS Policy IP-5(a):

MS. BROWN: And for example we have:

Adequacy of exterior design, height, bulk and scale of the new apartment development with respect to its compatibility with the existing neighbourhood. (As read)

You would agree with me that the -- how one looks at the adequacy may be different from one person to another, from one planner to another? MR. HESELTINE: It has a subjective elements.[sic]

[530] In the Board’s view, Council’s task in relation to DMPS Policy IP-5 can, in

fact, be seen as having multiple layers of subjective judgments.

118

Document: 209348

[531] Council is to “consider” the “adequacy” (a subjective term according to all

of the evidence before the Board) of such aspects of a proposal as “bulk,” “height,”

“scale,” “compatibility,” etc., (which are themselves likewise subjective).

[532] Further, Council is simply required to “consider” these items. In the view of

the Board, the Court of Appeal’s decisions make it clear that (while “consideration” of

such aspects as bulk, height, etc., by Council is mandatory), the weight which Council

chooses to give the particular criterion or criteria being considered is – as long as

Council’s decision remains reasonably consistent with the MPS – a matter for Council

to determine.

[533] To complicate matters further, the planning considerations found in DMPS

Policy IP-5 must not be evaluated in isolation, but again, following the repeated direction

on this point given by the Court of Appeal – in the context of the MPS as a whole. Thus,

the concepts enumerated above must also be evaluated in the context of such planning

considerations in the MPS as – to take but one of a number of examples – population

densification (a theme of particular importance to Mr. Heseltine and Ms. Young).

[534] As the Board has already discussed in relation to Issue 1 (the rezoning

application), the Board perceived some of the comments made by Mr. Heseltine and

Ms. Young, as well as by Mr. Dickey, as asserting that the subject property could not be

part of a neighbourhood because of its zoning. Indeed, the Board sees Counsel for the

Appellant, in a written submission, as accurately reflecting the evidence of Mr. Heseltine

and Ms. Young, and Mr. Dickey on the point. Counsel for the Appellant says:

The site of the Prince Albert cannot be said to be in an established neighbourhood as it is zoned C-2.

119

Document: 209348

[535] In the opinion of the Board, there are difficulties with this statement. To

assert that Monaco’s proposed tower cannot be said to be in an established

neighbourhood, because it is zoned C-2, overlooks among other things, the fact that the

project site is composed of two lots, one of them zoned C-2, and the other R-2.

[536] Counsel for Monaco refutes what he sees as the assertions by the

Intervenors and HRM that the Monaco site is in an “established neighbourhood because

there are single-family homes in the area”:

On their reasoning, as long as there are single-family homes in the vicinity, development is precluded.

[537] Whether or not that is a fair summary of the overall position taken by HRM

and the Intervenors, it is the Board’s view, having evaluated all of the evidence, and the

MPS, that the proximity of the subject property as a whole to the abutting residential

area, with many single-family homes, is a factor which, under the MPS, is one which

could reasonably be taken into account by the Municipal Council in reaching its

decision. Mr. Lloyd asserts that the subject property forms part of a “stable

neighbourhood” which:

…includes more than Glenwood Drive. It includes much of Celtic Drive, Penhorn Drive, Chittick Avenue, and Harris Road; and all of Lawrence Street, Lakeview Point Road and Hume Street. This request to rezone the Dartmouth Funeral Home and adjacent property on Glenwood Drive impacts on a large neighbourhood.

5.11.2.2 Conclusion on Development Agreement Application

[538] In Heritage Trust 1994, the Court of Appeal noted:

…There may be more than one meaning that a policy is reasonably capable of bearing. This is such a case. Planning decisions often involve compromises and choices between competing policies. Such decisions are best left to elected representatives who have the responsibility to weigh the competing interests and factors that impact on such decision…

120

Document: 209348

[539] In the judgment of the Board, the task of balancing criteria of this type, and

making a decision to approve a development agreement, or not, is one which - under

the Halifax Charter, and, applying the principles previously stated by the Court of

Appeal - properly rests with Council in the circumstances of this proceeding.

[540] It is precisely the kind of “value judgment” (in the words of Fichaud, J.A., in

Archibald), in which municipal councillors are called upon to make difficult choices

between conflicting policies.

[541] So long as a decision by a council can be seen as reasonably carrying out

the intent of the MPS (which, as indicated, the Board considers occurred here), the

Board should show deference to such a decision.

[542] Applying the same reasoning that the Board has applied in relation to the

rezoning decision earlier in this decision, the Board considers that the Appellant

Monaco has failed, on the balance of probabilities, to show that the decision by Council

to refuse approval of the development agreement is one which does not reasonably

carry out the intent of the MPS.

5.11.2.3 DMPS Policy IP-5 (a) and (b) and the Provisions of the DLUB

• Mr. Dickey’s Bonus Calculations • Can the DLUB be used to interpret the MPS?

[543] The above conclusion by the Board with respect to the development

agreement (and, for greater certainty, its earlier conclusion with respect to the

rezoning), was based entirely upon the Board’s evaluation of the MPS in the context of

the circumstances of this proceeding.

121

Document: 209348

[544] In reaching its conclusions, the Board has given no weight whatever to the

provisions found in the DLUB, including, in particular, the DLUB provision relating to R-4

zoning.

[545] However, the Board received a great deal of evidence and submissions

with respect to, in particular, the use of the DLUB by HRM staff, and, in general, the

relevance (or argued lack thereof) of the DLUB to the interpretation of the MPS.

[546] The Board will break its discussion of this issue into two sections.

[547] The first relates to Mr. Dickey’s use of the R-4 provision in calculating

additional or “bonus” residential units in support of his recommendation that Council

approve Monaco’s applications.

[548] The second relates to the question of whether the DLUB can be used at all

in relation to interpretation of the MPS.

5.11.2.3.1 Mr. Dickey’s Bonus Calculations [549] In part of his report, Mr. Dickey used the R-4 provisions in the DLUB to

calculate what would have been available to Monaco under the R-4 zoning by-laws

which governed apartment building construction in Dartmouth up until 1991. In his

report, he stated that the maximum number of units possible under the R-4 zoning rules

– as stated in s. 35(3) of the LUB - was 71 units. However, he suggested that Monaco

should be permitted to construct a building with 92 units, giving various reasons for

these 21 extra units, which he enumerates in his report.

[550] As Counsel for HRM pointed out, however, Mr. Dickey was only able to get

to his figure of 71 by awarding so-called “bonus” units to Monaco – a fact acknowledged

by him in his report.

122

Document: 209348

[551] However, Counsel for HRM argues, and the Board has concluded it

agrees, that Mr. Dickey’s calculations of the bonus units are not consistent with LUB s.

35(3); further, the errors which appear are all in Monaco’s favour.

[552] First, as Counsel for HRM points out in a written brief, Mr. Dickey’s report

in effect awarded a bonus of 10% to the subject property for being located across the

street from parkland, to which he added a further 6% for having underground parking.

[553] On the former point (proximity to parkland) the Board notes that Mr. Lloyd

took the view that the subject property is not actually across the street from parkland,

within the meaning of the R-4 zoning provision. The Board has concluded it need make

no finding as to the merits of that assertion in this proceeding.

[554] In effect, Mr. Dickey added the two bonus calculations together (10% +

6%), thus engaging in what the Board will term “accumulative bonusing.”

[555] Counsel for HRM and the Intervenors say, and the Board agrees, that the

language of s. 35(3)(c) does not contemplate accumulative bonusing. There are four

sub-clauses within s. 35(3)(c), each of which describes a particular type of bonus

category, with the bonus expressed in percentage terms. Each of these clauses is,

however, joined together by the word “or,” not by the word “and.”

[556] The Board interpreted Mr. Dickey’s evidence on cross examination as

acknowledging that indeed the type of bonus calculation outlined in the DLUB does not

permit accumulative bonusing.

[557] As the Board interpreted his evidence, he claimed his accumulative

bonusing was justified on two grounds.

123

Document: 209348

[558] First, he said, it was his understanding that other development officers had,

up to 1991, allowed accumulative bonusing, despite the wording of LUB s. 35(3)(c).

[559] Second, he considered that because staff now use the DLUB provisions

respecting the R-3 and R-4 Zones “simply…as a reference,” he could indulge in

accumulative bonusing, no matter what LUB s. 35(3)(c) actually said.

[560] Even if one were to accept as appropriate his having increased the R-4

calculation to 71 in a manner inconsistent with LUB s. 35(3)(c), the Board notes that a

further arithmetic error appears to be occur in his calculations. He attributed a 6%

bonus for underground parking. Six percent is the bonus associated with parking

arrangements where all of the parking is underground, but not all of Monaco’s parking

would be underground. Some would be above ground, which, according to s. 35(3)(c),

would merit a bonus of no more than 4%.

[561] In short, Mr. Dickey’s planning report overstated to Council the maximum

number of units permitted under the R4 zoning bylaw – his figure of 71 is higher than

the section allows.

[562] To this already overstated figure, he added 21 additional units. He did not

justify the 21 through any calculations, but simply as a matter of professional judgment.

5.11.2.3.2 Can the DLUB be used to interpret the MPS?

[563] In supporting Council’s refusal to approve the rezonings or the

development agreement, Counsel for HRM relied principally on the provisions of the

MPS. However, she also argues that the DLUB (with its R-4 upper limit of, at the very

most – even using Mr. Dickey’s impugned calculations - 71 units) can be used to help

interpret the MPS.

124

Document: 209348

[564] For himself, Mr. Lloyd (testifying on behalf of HRM and the Intervenors)

saw the LUB as a useful tool in determining the intent of the MPS.

[565] On the other hand, Monaco’s experts, and Counsel for Monaco, argued it

was wrong to use the R-4 zoning provisions found in the DLUB as an aid to

understanding the MPS:

MR. ROGERS: Okay. Is it appropriate to treat the Land Use Bylaw standards for R-4 as a proxy for the intent of the Municipal Planning Strategy? MS. YOUNG: I can’t see how or why.

[566] It has long been held that, where the meaning of an LUB is in issue, the

MPS may be used to help determine the intent of the LUB: see, for example, J & A

Investments Ltd. v. Halifax (Regional Municipality), [2000] N.S.J. 92 (S.C.).

[567] In Mahone Bay Heritage and Cultural Society v. Town of Mahone Bay and

3012543 Nova Scotia Limited, [2000] N.S.J. No. 245 the Court of Appeal held that the

reverse could also be true: the Court said that – at least in the circumstances of

Mahone Bay - provisions in the LUB could be used to help determine the intent of the

MPS, by “throwing light on the intent of the strategy.”

[568] The Court provided additional direction on the point in Tsimiklis v. Nova

Scotia Utility and Review Board et al., 2003 NSCA 30. In that case, the Court reviewed

a decision of the Board which used the LUB to interpret the MPS, thereby reversing a

decision by a community council which would have allowed the development to occur.

[569] The Court, however, rejected this approach in Tsimiklis. In doing so, the

Court in Tsimiklis (like the Court in Mahone Bay) referred to the MPS and LUB

provisions in question having been simultaneously adopted. In Tsimiklis, the two had

not been adopted together – the LUB had been adopted later. The Court observed that:

125

Document: 209348

….that great caution must be exercised in using a subsequently enacted LUB or amendment to an LUB in the interpretation of a previously enacted MPS.

[para 56] [570] In the summary of planning principles appearing in Archibald, the Court

likewise referred to simultaneous adoption:

The reflexivity between the MPS and a concurrently adopted land use by-law means the contemporaneous land use by-law may assist the Board to deduce the intent of the MPS.

[para 24]

[571] Nevertheless, even if they had been adopted together (as in Mahone Bay),

the Court in Tsimiklis said that an LUB, while it can be a tool for interpreting an MPS,

ought not to:

…be used to tie council’s hand … [572] Thus, according to Nova Scotia’s present case law, one may use the MPS

to help determine the intent of the LUB (J & A Investments). It seems though that one

may sometimes be able to use the LUB to help determine the intent of the MPS

(Mahone Bay) – although the circumstances in which the LUB may thus be used are

limited, and perhaps increasingly so (Tsimiklis).

[573] In particular, there is an emphasis in the case law on the idea that if an

LUB is to be used, it should not have been adopted later, but instead

contemporaneously. Counsel for HRM of course acknowledged that the DLUB R4

provisions were not adopted at the same time as DMPS Policy IP-5.

[574] She emphasized, however, that the R-4 provisions were not adopted after

the DMPS (and its Policy IP-5), but before it. They were already in existence, and

known to Council, when it adopted DMPS Policy IP-5. Moreover, they were not

repealed by Council when it adopted DMPS Policy IP-5. Instead, they have continued

to exist, unchanged, to the present day.

126

Document: 209348

[575] In a written submission, Counsel for HRM argued that:

…had Council not seen the R-3 and R-4 "as of right" requirements as an upper limit on what ought to be permitted through the development agreement, they could have and would have removed those sections of the DLUB. The R-3 and R-4 requirements with respect to apartment buildings have no standing on their own as it is impossible to do an "as of right" apartment building in Dartmouth. Therefore, it is submitted that it is instructive that Council chose to leave the R-3 and R-4 requirements in the DLUB and at the same time require all apartment buildings in those two zones to be approved by development agreement.

[576] As such, she argued that the upper limit, in numbers of units, of what would

have been permitted under the R-4 zoning should be used in a development agreement

application as – if not a fixed upper limit – a guide to the maximum which could be

appropriate. She says the continued presence of the R-3 and R-4 Zone requirement is:

…indicative of the intent of the MPS with respect to considerations for development agreements in either the R-3 or R-4 Zones.

[577] The Board does consider that one obvious question is that if Council really

retained the R-4 (and R-3) zoning by-law after its adoption of DMPS Policy IP-5 in order

to set an upper limit with respect to the number of units, why did it not simply include

appropriate text with respect to such limits in the new MPS provision itself?

[578] Simply keeping the LUB provisions in place may reasonably be seen as

giving, at best, a broad hint of Council’s intentions. What is more, if keeping these

provisions was intended to be such a hint, it is arguably one of dubious efficacy – given

the limitations in the case law with respect to the use of LUB provisions to interpret the

MPS.

[579] To put it another way, the continued presence of the LUB provisions

relating to R-4 and R-3, without at least having explanatory comment in the MPS,

seems an entirely avoidable ambiguity.

127

Document: 209348

[580] That being said, the Board does see HRM’s argument here as intriguing,

and creative.

[581] In the end, however, apart from noting the argument in this (relatively

speaking) brief review (written in part to dispel any inference that the Board relied on the

DLUB provisions in question, in any way whatever), the Board has ultimately concluded

it would be inappropriate for the Board to make a finding on the point.

[582] The reason is that the Board has already satisfied, using the provisions of

the MPS alone, that Council’s refusal of Monaco’s applications reasonably carries out

the intent of the MPS.

[583] If, hypothetically, the Board were to have found that the DLUB could be

used as an interpretive tool to which some weight might be given in the circumstances

of this proceeding, the Board considers that so using the DLUB would simply have

reinforced, or been consistent with, the conclusion the Board has already reached using

the MPS alone.

6.0 CRITICISMS OF COUNCIL’S PROCESS BY DEVELOPER AND OTHERS [584] As the Board briefly alluded to in the “Facts” part earlier in this decision, a

number of people attending the council meeting of January 17, 2012, at which Monaco’s

applications were refused, were critical of the refusal having occurred at that stage.

[585] If Monaco’s applications had been permitted to go through the usual further

stages, including a public hearing process, a considerable amount of information put

together by the Developer, as well as information which might have been assembled by

opponents to the development, could have been subjected to public scrutiny, and

discussed by councillors.

128

Document: 209348

[586] Under the Council’s rules (according to the evidence before the Board), it

appears that the decision to refuse the development at first reading meant that even the

councillors themselves were not permitted to engage in debate with respect to the

advantages and disadvantages of the proposal – although it will be recalled that

Councillor McCluskey nevertheless managed to speak briefly on the issue, and engage

in some dialogue with Mr. Dickey. Certainly, neither the representatives of the

developer nor opponents to the project were able to speak at all before the application

was rejected.

[587] It is evident from all of the evidence before the Board that Monaco, and Mr.

Maskine personally, invested a great deal of time, energy, and expertise in putting

together their proposal for development of the subject property.

[588] The Board infers that Mr. Maskine and his associates were disappointed,

and even angered, by Council’s rejection of the project at this initial stage of review.

Expressions of that annoyance continued into the evidence and submissions at this

proceeding. For example, Counsel for the Appellant, in a written submission to the

Board, stated that Halifax East Community Council:

…did not even provide the Appellant with the courtesy of a public hearing for the project…

Eleven pages later, Counsel returned to the topic once again, saying that HRM:

…defeated the proposal without reasons and without granting the developer an opportunity to proceed to a public hearing on the merits of the proposal.

[589] While persons were clearly surprised and disappointed by Council’s action

in rejecting the application at first hearing on January 17th, the Board notes that

according to the evidence before it, the rejection of an application at first reading is not

129

Document: 209348

unprecedented. Three such instances, in recent memory, were referred to in the cross

examination of Mr. Dickey by Counsel for HRM.

[590] Whether Council’s dealing with the matter in this summary fashion was fair,

or not, or even gave the appearance of being fair, or not, is not a matter over which the

Board has any jurisdiction.

[591] The Act, and the case law from the Court of Appeal (in particular, Maskine,

which is referred to in some detail elsewhere in this decision under “Issue 2”) has strictly

limited the Board to deciding whether a decision by a council to say yes, or to say no, to

a rezoning, or to a development agreement, can be seen as reasonably consistent with

the MPS.

7.0 CONCLUSION

[592] The Board finds that the Appellant, Monaco, has failed, on the balance of

probabilities, to show that Harbour East Community Council’s decision to refuse

Monaco’s application to rezone the subject property fails to reasonably carry out the

intent of the Municipal Planning Strategy.

[593] With respect to the appeal of Council’s refusal of the development

agreement, the Board made no finding with respect to whether or not it had jurisdiction

(in the unusual circumstances of this matter) to hear the development agreement

appeal; it merely assumed, without finding, that it did have jurisdiction.

[594] Having assumed that it does have jurisdiction, the Board finds that Monaco

likewise failed (as it had, in the Board’s judgment, in the rezoning appeal) to show on

the balance of probabilities that Council’s decision to refuse approval of Monaco’s

130

development agreement failed to reasonably carry out the intent of the Municipal

Planning Strategy.

[595] The appeal is dismissed; the decision by HAM's Halifax East Community

Council to reject Monaco's project stands.

[596] An Order will issue accordingly.

Document: 209348

' i

! /( Wayne··o. Cochrane