DECISION 2020 NSUARB 108 M09725 NOVA SCOTIA UTILITY … · Document: 276654 DECISION 2020 NSUARB...
Transcript of DECISION 2020 NSUARB 108 M09725 NOVA SCOTIA UTILITY … · Document: 276654 DECISION 2020 NSUARB...
Document: 276654
DECISION 2020 NSUARB 108 M09725
NOVA SCOTIA UTILITY AND REVIEW BOARD
IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT
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IN THE MATTER OF AN APPEAL by JEAN CAMERON, KATHY MANUEL, PAUL LEWIS and JEANETTE LEWIS of a decision of Council for the Municipality of East Hants to approve a development agreement with Leno Ribahi for a mixed-use development on land located on PID# 45085248, Highway 214, Elmsdale BEFORE: Stephen T. McGrath, LL.B., Member APPELLANTS: Jean Cameron Kathy Manuel Paul and Jeanette Lewis RESPONDENT: MUNICIPALITY OF THE COUNTY OF HANTS Marc Dunning (Counsel) HEARING DATE: July 28, 2020 DECISION DATE: August 12, 2020 DECISION: The Appellants are aggrieved persons who can continue
with their appeal. The Board provides directions on the grounds of appeal the Appellants can advance in this proceeding.
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Table of Contents
I INTRODUCTION ...................................................................................................... 3 II ISSUES .................................................................................................................... 5 III ARE THE APPELLANTS “AGGRIEVED PERSONS”? ............................................. 5
Aggrieved Person: The Municipal Government Act and the Common Law ..... 5 Impact of the Proposed Development ........................................................... 13
(a) Proximity ....................................................................................................... 14 (b) Light and Noise ............................................................................................. 15 (c) Privacy and Security ..................................................................................... 17 (d) Traffic ............................................................................................................ 18 (e) Environmental ............................................................................................... 19
(f) Watercourse 4 ............................................................................................... 20
(g) Property Value .............................................................................................. 21
Aggrieved Person Status in this Case ........................................................... 22 IV ARE THE GROUNDS OF APPEAL WITHIN THE BOARD’S JURISDICTION? ..... 31
Procedural Errors or Irregularities ................................................................. 34 Contraventions of the Land-use By-law ........................................................ 35
Grounds in Notice of Appeal ......................................................................... 37 (a) Ground 1 - Section 8.5.1 - Maximum Building Height ................................... 37 (b) Ground 2 - Section 8.5 – Limited Residential Uses ....................................... 39
(c) Ground 3 - Intent of RC Zone Circumvented if Subdivision Occurs .............. 40 (d) Ground 4 - ED34(c) - Requirements for Development in RC Zone Will Not Be
Met When Intended Subdivision Occurs ....................................................... 42 (e) Ground 5 - 10.2.4 - Establishing the True High-Water Mark in a High-Risk Flood
Zone .............................................................................................................. 42 (f) Ground 6 - C9-EN5 - Setback from Nine Mile River ...................................... 43
(g) Ground 7 - 3.26 – Setback from Watercourse 4 ............................................ 44 (h) Ground 8 - Municipal Planning Strategy Section 6 - Allowance for Gradual
Separation of Uses of Different Densities ..................................................... 44
(i) Ground 9 - 8.2.3 - Buffer for Adjacent Agricultural Land ............................... 45 (j) Ground 10 - C-6 Section RD2: Neighbourhood Integrity ............................... 46
(k) Ground 11 - C-9 Environment: Environmental Stewardship .......................... 46 (l) Ground 12 - C-9 and EN 10 - Stormwater Management Best Practices ....... 47 (m) Ground 13 - Non-adherence to Council’s Final Decision .............................. 47 (n) Ground 14 - Procedural Concern - Public Hearing During a Pandemic ........ 47
(o) Ground 15 - Procedural Concern - Live-stream Public Hearing. ................... 48
(p) Ground 16 - Financial Impact – Sidewalks .................................................... 48
(q) Ground 17 - Community Impact .................................................................... 49 Policies at Issue in this Appeal ...................................................................... 49
V SUMMARY AND CONCLUSION ............................................................................ 53
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I INTRODUCTION
[1] On April 29, 2020, the Municipality of East Hants approved an application
for a development agreement for a mixed-use development (commercial and multi-unit
residential) on land at Highway 214 in Elmsdale, between the highway and Nine Mile
River. The proposed development includes a six-storey 70-unit residential building next
to the river and a four-storey mixed-use building on the highway side of the property with
commercial space on the ground floor and 24 residential units on the floors above. The
proposal also includes a single storey commercial building next to the highway.
[2] The proposed development would be in the Municipality’s Regional
Commercial (RC) Zone. As-of-right, the Municipality permits the development of a wide
range of large-scale commercial activity including warehousing, retailing of goods and
services, food and beverage facilities, accommodation, entertainment facilities, office and
business services, drive-thru restaurants, service stations, shopping malls, and other
vehicle-dependent uses in this zone. The Municipality only allows mixed-use
developments in the RC Zone by development agreement.
[3] There is an interchange between Highway 214 and Highway 102 at the
eastern end of the zone in which the proposed development would be located. There is
a Superstore on the western side of the interchange. The Elmsdale Shopping Centre,
which includes a Sobeys, other retail stores and restaurants, is just east of the
interchange.
[4] The proposed development would be in the western end of the zone, in an
area that municipal staff described as feeling semi-rural in nature. Although the zoning
directs future growth for this area to more significant commercial development, the
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proposed development is the first to propose a denser form of commercial development
in that area.
[5] The Appellants live near the proposed development site and own property
within 300 metres of that location. In their Notice of Appeal, which included a lengthy
attachment, the Appellants characterized the impact of the proposed development on the
area:
The semi-rural nature of this historically agricultural and large lot residential area will be forever changed if this development is allowed to proceed. The location, size, height and scope of the proposed buildings, the supporting infrastructure and the number of inhabitants will directly and negatively impact the way of life and livability of the area residents invest in, pay taxes on, and call home. Most residents have lived here for decades. It will forever change the integrity of our rural community.
[Exhibit C-1, Attachment, p.17]
[6] The Notice of Appeal set out several proposed grounds for the appeal.
[7] At a preliminary hearing for the appeal, the Municipality submitted that the
Appellants were not aggrieved persons having standing to bring the appeal under the
Municipal Government Act, S.N.S 1998, c.18, because there was no objective basis for
their belief that they would be impacted by the proposed development. The Municipality
also said that many of the proposed grounds of appeal were not valid grounds that could
be pursued in a planning appeal. As a result of the Municipality’s submissions, the Board
set a schedule to address these matters that included the filing of written materials and
an oral hearing held by videoconference because of the Covid-19 pandemic.
[8] For the Appellants, Ms. Cameron and Ms. Manuel testified at the hearing
for the preliminary motions on standing and the grounds of appeal. They elaborated on
the Appellants’ pre-hearing submissions and evidence and supplied information to
supplement the statements made in the Notice of Appeal. Paul and Jeannette Lewis did
not appear on the virtual hearing dealing with the Municipality’s motions, but the Board
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understands that the Appellants are working together, and accepts that it should consider
the arguments and evidence advanced by Ms. Cameron and Ms. Manuel on behalf of
Jeannette and Paul Lewis as well.
[9] The Municipality’s Manager of Planning, Rachel Gilbert, also testified at the
hearing for the motion on standing. She was qualified as an expert in land use planning
to provide opinion evidence on matters related to the interpretation and application of the
East Hants Municipal Planning Strategy, Land-use By-law and other planning related by-
laws, and the extent to which the development will impact the Appellants’ use and
enjoyment of their properties as evaluated by her through the development agreement
application process (including the preparation of staff reports and the development
agreement).
[10] The Board finds that the Appellants are aggrieved persons and they can
continue with their appeal. In this decision, the Board also gives directions on the grounds
of appeal.
II ISSUES
[11] The following issues must be addressed:
(1) Are the Appellants aggrieved persons?
(2) Are the grounds of appeal within the Board’s jurisdiction?
III ARE THE APPELLANTS “AGGRIEVED PERSONS”?
Aggrieved Person: The Municipal Government Act and the Common Law
[12] Section 247(2) of the Municipal Government Act limits the parties who may
appeal a municipal council’s decision to approve a development agreement:
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Appeals to the Board
247 (2) The approval, or refusal to approve, and the amendment, or refusal to amend, a development agreement may be appealed to the Board by (a) an aggrieved person; (b) the applicant; (c) an adjacent municipality; (d) a village in which an affected property is situated; (e) the Director.
[13] The Appellants do not fall under clauses (b) to (e) and may only bring this
appeal if they are aggrieved persons under s. 247(2)(a). The Municipality urges the Board
to dismiss this appeal because it says the Appellants are not aggrieved persons under
the Act. The burden of proof is on the Appellants to show that they are, on a balance of
probabilities (Re Taylor, 2015 NSUARB 82).
[14] The Board recently considered who is an aggrieved person in Re
Thompson, 2020 NSUARB 52, where the Board discussed the historical development of
standing to appeal municipal planning decisions. The standing provisions in the Planning
Act, R.S.N.S. 1989, c. 346, and earlier versions of that statute, preceded the provisions
in the Municipal Government Act. Under the Planning Act, S.N.S. 1969, c. 16, s.35, “any
interested person” could appeal certain municipal planning decisions. The Planning Act,
S.N.S. 1983, c.9, did not use this language, but instead provided for a right to appeal by
an “aggrieved person” (s.63(1) and s.71(1)).
[15] The change to “aggrieved person” in the 1983 statute suggested the
Legislature intended to limit who could appeal municipal planning decisions. Decisions
of the Municipal Board, shortly after the 1983 enactment, interpreted the standing
requirement restrictively. A detailed discussion of this is found in an article written by E.
Anne Bastedo and A. Wayne MacKay, Citizen Access to Nova Scotia Planning Appeals:
from Interested to Aggrieved Persons (1987).
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[16] In 1987, the Legislature added s.63(1A) and s.71(1A) to the Planning Act
[S.N.S. 1987, c.51]. These sections established a definition for “aggrieved person” that
is essentially the same as the one that is currently in s.191(a) of the Municipal
Government Act. The Board discussed these changes in Re Ollive Properties Ltd., 2012
NSUARB 186:
Ollive directed the Board to the Cann decision which cites a portion of the comments of the Minister of Municipal Affairs when the current definition of aggrieved person was introduced to the Legislature. The Minister describes the mischief to be remedied as being in response to "the general consensus ... that the status of an aggrieved person to appeal has proved to be too restrictive in its interpretation by the Municipal Board" (April 28, [1987] Hansard p. 2104). Consequently with the new definition, while placing reasonable limits to prevent frivolous appeals, the Legislature sought to broaden those who could bring an appeal, including those who believe their property value and/or enjoyment of it will be affected by council's decision. The portion of the Minister's remarks cited in the Cann decision read as follows:
Some of the more significant clauses in the bill, Clauses 12 to 15, are in response to the general consensus that government is determined, in the public's mind, that the status of an aggrieved person to appeal has proved to be too restrictive in its interpretation by the Municipal Board. I do, I must admit, support the position that reasonable limits should be placed on those who can appeal the decisions of a municipal council relating to the amendment of land use by-laws or rezonings or the approval of development agreements. The proposed amendment defines aggrieved person in a way which allows persons who believe their property value or the enjoyment of their property or their enjoyment of their place of residence, i.e., people who are renting, if they feel they are going to be affected by a decision of council they will have the right to appeal that decision, if they are not satisfied with it, to the Municipal Board.
[Ollive, para. 78]
[17] Municipal Board decisions following these changes took a more liberal
approach to this issue (e.g., MacIsaac Funeral Home Ltd. v. Antigonish (Town), 1991
Carswell NS 759).
[18] This Board also commented, in Ollive, that the right to appeal is a “check
and balance” within the municipal planning process that plays an important part in
achieving the purpose and objects of the legislation. It helps to ensure that a municipality
reasonably carries out the intentions of its planning strategy.
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[19] The Municipal Government Act defines “aggrieved person” in s. 191(a) as:
“aggrieved person” includes
(i) an individual who bona fide believes the decision of the council will adversely affect the value, or reasonable enjoyment, of the person’s property or the reasonable enjoyment of property occupied by the person,
(ii) an incorporated organization, the objects of which include promoting or protecting
the quality of life of persons residing in the neighbourhood affected by the council’s decision, or features, structures or sites of the community affected by the council’s decision, having significant cultural, architectural or recreational value, and
(iii) an incorporated or unincorporated organization in which the majority of members
are individuals referred to in subclause (i)
[20] As the Appellants in this case are individuals, only s.191(a)(i) in the
definition applies.
[21] The adverse effects of a Council decision mentioned in s. 191(a)(i) are
rooted in the ownership and use of real property. In Federation of Nova Scotian Heritage
v. Peninsula Community Council, 2004 NSUARB 108, the Board held that s. 191(a)(i)
referred to “real property and not to intellectual or personal property” (para. 55). The
Board reiterated this in Re Heartland Resources Inc., 2005 NSUARB 39 (para. 30). In
Re Brison, 2006 NSUARB 113, the Board observed:
The definition of aggrieved person in the MGA only lists two of the potentially protected interests. First, it incorporates the language of the tort of nuisance as noted by Stanley M. Makuch, in Canadian Municipal and Planning Law, 2nd ed., Toronto, Ont.: Thomson Carswell, 2004 p. 190. He states nuisance “exists where a person unreasonably interferes with the use and enjoyment of another’s land”. “Enjoyment” includes the “use” of one’s lands as the term “enjoy” in the Oxford Dictionary, supra, means: (1) take delight or pleasure in; (2) to the use or benefit of; and (3) experience. Second, it lists a person’s interest in the value of his/her property.
[Re Brison, para. 56]
[22] The Board has also recognized that the word “includes” in the definition of
“aggrieved person” signals that s.191(a) is not an exhaustive list of the categories of
aggrieved persons. As a result, the Board also considers whether an appellant is an
aggrieved person based on the common law, which takes into account a range of interests
not limited to the ownership and use of property or the establishment of legal rights.
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[23] In many cases, the Board has referred to the Supreme Court of Canada
decision in British Columbia Development Cooperation v. Friedmann (Ombudsman),
[1984] 2 S.C.R. 447 (e.g., Re Taylor, 2015 NSUARB 82, Re Lunenburg Heritage Society,
2010 NSUARB 224 and Re Johanson, 2010 NSUARB 123). In Friedmann, Justice
Dickson said, on behalf of the court, “a party is aggrieved or may be aggrieved when he
genuinely suffers, or is seriously threatened with, any form of harm prejudicial to his
interest, whether or not a legal right is called into question” (p. 469).
[24] Justice Thomas A. Cromwell, in his book, Locus Standi: A Commentary on
the Law of Standing in Canada (Toronto: Carswell, 1986), discussed the term “person
aggrieved” in the context of standing in judicial review proceedings for prerogative relief
in the nature of certiorari. He observed that deciding who is a person aggrieved is a
contextual assessment of the relationship between the griever and the impugned
decision:
A “person aggrieved” has been said to be one who suffers some “peculiar grievance of their own beyond some grievance suffered by them in common with the rest of the public.” The similarity of this formulation to the standing rule in public nuisance is obvious, but it has been interpreted less strictly in certiorari cases. For example, there has been no debate about whether injury different in kind as opposed to different in degree has been necessary. The tendency instead has been to give the test a fairly broad reading. It has been held to be sufficient if the applicant has “a real interest”, a “substantial interest” or a “more special and more intense interest” than that of the general public. It has been held to be sufficient if the challenged act causes the applicant “hardship and inconvenience” or if the “use and value” of the applicant’s lands are adversely affected. “Person aggrieved” includes any person “whose interests may be prejudicially affected.” The various attempts to elaborate upon the term “person aggrieved” or to catalogue the types of interests or interferences therewith that qualify the applicant as “aggrieved” do not help to reconcile the cases…. The cases are not decided upon verbal formulae or lists of protected interests, but on the basis of the Court’s perception of the relationship between the applicant and the challenged decision, the nature of the statutory scheme out of which the decision issued, and the merits of the complaint. In addition to these factors, the courts are recognizing that who is a person aggrieved is a matter of degree rather than a test, the application of which results in clear-cut answers.
[Cromwell, Locus Standi, pp. 106-107, citations omitted]
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[25] An appellant’s belief that a decision of council will adversely affect their
interests must be bona fide. This is an explicit requirement for affected interests under
s.191(a)(i) and applies to the Board’s consideration of affected interests under the
common law as well (Re Brison, para. 59).
[26] A bona fide belief has both subjective and objective elements:
[T]he inclusion of the words “bona fide” in front of the word “belief” suggests that there must be some reasonable basis for the belief held by the person claiming to be adversely affected. In other words, there must be an objective aspect to the determination of whether the belief is bona fide in addition to the subjective aspect noted by the sincerity with which the belief is held. Otherwise, the belief, no matter how misguided, if sincerely held, would qualify a person as an aggrieved person. The Board does not consider the Legislature could have intended such a consequence.
[Re Ruffman, [1995] N.S.U.R.B.D. No. 15, pp.5-6]
[27] The Board discussed the nature of the objective assessment of an
appellant’s belief that a planning decision would affect them in detail in Ollive. That case
involved an appeal from a decision to approve a development agreement for a 27-storey
mixed-use building. The owner of an adjoining property, that was itself the subject of a
development agreement for a proposed seven-storey mixed use building, brought the
appeal.
[28] The developer of the appealed project and the municipality argued that to
objectively demonstrate that they had a bona fide belief, the appellant had to prove, on a
balance of probabilities, that the development would adversely affect the reasonable
enjoyment or value of the appellant’s property. The Board disagreed and found that the
objective element of an appellant’s bona fide belief would be satisfied if the belief was
objectively related to the proposed development. The Board noted that as planning
appeals deal with future developments, proof of actual adverse effects was not possible.
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[29] Furthermore, the Board said requiring appellants to show that there would
be adverse effects would not only eliminate frivolous appeals, but legitimate appeals as
well:
The Board concurs with Ollive that as planning appeals deal with potential future harms, not existing ones; requiring proof of actual adverse effect places the bar too high, is excessive and unworkable. Legitimate and valid claims could not come forward. This would, in turn, diminish the only mechanism to ensure council reasonably carries out the intent of the [municipal planning strategy].
[Ollive, para. 108]
[30] The Board also said that requiring an appellant to supply objective evidence
for each belief to prove that there will be an adverse effect had other undesirable
consequences. First, it would change the focus of the test from whether an appellant’s
belief was reasonable to whether the planning decision would affect the appellant.
Second, it would encourage preliminary hearings to become mini trials including evidence
and cross-examination, and sometimes including experts. This, in turn, would extend the
appeal process beyond the efficient process and timeline set out in the legislation.
Additionally, some of this evidence would not be relevant to the consideration of the
appeal on its merits, so it could unnecessarily increase costs as well.
[31] In general, the Board considered it should assess an appellant’s belief in a
prompt and inexpensive manner based mainly on the information in the appeal record in
the proceeding. The Board also discussed the facts it should examine to determine
whether an appellant was an aggrieved person:
I find the basic facts to be examined in determining the aggrieved person status are the development, including the type of structure (a dam, waste disposal site, residential, commercial, etc.), its physical characteristics (dimensions, features, etc.), and how it will be used (by whom, numbers, frequency, etc.). It also includes a review of the area affected by the development and the use of the properties within that affected area. A large dam may affect property owners many kilometers in either direction. At the other extreme is the area affected by a small single family bungalow.
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The use of the lands within the affected area can vary from the effects on nearby world class natural canoe course, Monaco Investments Partnership, 2012 NSUARB 155, to rarely used vacant woodlands. Within the affected area the above elements determine the beliefs objectively related to the development. Misguided beliefs, in addition to the building height affecting telephone reception, can be wind from a bungalow affecting an owners' enjoyment of a vacant woodlot.
[Ollive, paras. 120-123]
[32] The Board specifically noted it should not review the evidence for the
purpose of concluding that there will be adverse effects:
As one example, Can-Euro and the Municipality asked the Board to consider Can-Euro's expert traffic report to find that the Can-Euro development will not adversely affect the traffic for Ollive's future occupants and, therefore, Ollive cannot be an aggrieved person. The Board concurs with Ollive that in determining aggrieved person status, the Board should not review the evidence to conclude whether there will, in fact, be an adverse effect on Ollive's property created by the Can-Euro development. The Board finds that level of analysis should not be done for a number of reasons. Firstly, as outlined above, it is not the test for the standard of an aggrieved person. The Board is not required to find that the development will adversely affect the Appellant. The standard is a bona fide belief. Secondly, a determination of traffic effects should be done at the hearing of the appeal on its merits when all the evidence, including all expert reports, are available and before the Board. Thirdly, these issues should not be concluded summarily with only the Applicant's expert evidence.
[Ollive, paras. 131-134]
[33] In this case, the Board concurs with the reasoning it expressed in Ollive
about the nature of the objective aspect of an appellant’s belief that a planning decision
will adversely affect them. As in other legal contexts, the objective assessment of an
appellant’s belief considers the reasonableness of that belief. In some contexts, the
question that is posed is what a reasonable person would think or do in the shoes of the
person whose belief or action is being considered.
[34] As with other reasonableness tests, the evidence that an appellant in a
planning appeal must present to satisfy the objective aspect of the bona fide belief
requirement will vary with the circumstances. In some cases, the nature of an appellant’s
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concerns will be so connected to the impugned decisions that the reasonableness of their
belief that they will be adversely affected will be self-evident. In other cases, a more
searching review may be required to assess the reasonableness of the belief held by the
appellant, mindful that the nature of the inquiry is focused on whether it is reasonable for
the appellant to hold the belief that they do, not whether they will actually be adversely
affected.
Impact of the Proposed Development
[35] In their Notice of Appeal, the Appellants said the proposed development
“will forever change the integrity of our rural community.” They also suggested that there
were many implications of a development like the one proposed that would be
“detrimental to our rural way of life.”
[36] The Appellants emphasized certain passages from a December 2019
planning report prepared by municipal staff about the application for the development
agreement. This planning report was not included in the Appeal Record filed by the
Municipality in advance of these preliminary motions, likely because the decision of
Council currently under appeal related to an application for a development agreement
that was slightly revised and resubmitted by the developer in January 2020, shortly after
the developer’s initial application was refused by Council in December 2019. The
passages from the December 2019 planning report, as cited by the Appellants in their
Notice of Appeal, said:
‘The application property is located in an area which feels semi-rural in nature. It's development feels somewhat out of keeping with the current character of the immediate surrounding area which includes some smaller scale commercial and large lot rural houses on the edge of the more developed area of Elmsdale.' and, 'As much as possible, the community character of existing residential areas needs to be respected...'
[Exhibit C-1, Notice of Appeal, Attachment, p. 16]
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[37] The Municipality did not dispute that the Appellants believed that the
proposed development would affect their interests but said there was no objective basis
for these beliefs. The Municipality’s position was based on the nature of the affected
interests raised by the Appellants; the location, size and features of their properties; and
the measures the developer must take under the development agreement to address
potential impacts.
(a) Proximity
[38] In their submissions, the Appellants noted they all own properties within 300
metres of the proposed development. The Municipality said that the Board has always
held that proximity is not enough to prove that a person is aggrieved, and in support of
this cited Maxwell v. Kentville (Town), 2002 NSUARB 63.
[39] The Municipality noted that while the Appellants live around the proposed
development, they do not live next door to it. In its evidence, the Municipality supplied
maps showing the location of the proposed development and the Appellants’ properties
and residences.
[40] All the Appellants have property boundaries that are within 300 metres of
the proposed development, but they are large lots and the distances to the residential
dwellings on those properties were also provided to the Board. The Cameron residence
is only 111 meters away from the boundary of the proposed development site. The Lewis
residence is a bit further away at 177 metres from the site of the proposed development.
The Manuel residence is about a half a kilometer away.
[41] The Municipality’s Municipal Planning Strategy has an entire section
devoted to “Citizen Engagement.” This section includes specific policies about “essential”
public involvement in development applications. These policies require the Municipality
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to take specific steps to ensure that property owners within 300 meters of a property
proposed for a development agreement are engaged. Under Policy CE16(b) in the
Municipal Planning Strategy, the Municipality must mail a letter to property owners within
300 metres of the site of a proposed development agreement outlining the date, time and
location of any public information meetings or public hearings. Policy CE16(c) requires
that after a development agreement receives initial consideration by Council, a
questionnaire be sent to these property owners, along with a pre-paid self-addressed
return envelope for the questionnaire and a copy of a preliminary staff report or a
summary of the application. Because the Appellants all have properties that are within
300 metres, the Board understands that they would or should have received specific
notice of the proposed development and a questionnaire from the Municipality as it was
considering the development agreement application.
(b) Light and Noise
[42] The Appellants said that there would be light and noise pollution from the
proposed development. They also expressed concern about the noise and disturbance
they said would arise from the construction of the development. The Appellants
suggested that construction activities could occur over an extended period because of
the intended staged nature of the development, with the residential building waiting for
the construction of the commercial building. In this regard, the Board notes that the time
limits in the proposed development agreement allow the developer four years to apply for
development permits for each of the three buildings on the site, and a further two years
after each permit is issued to meet the requirements of the development agreement.
[43] On cross-examination, Ms. Manuel, whose residence is half a kilometre
away in a wooded area, testified that she was not able to see the proposed development
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site from her home. Ms. Cameron, although her residence is much closer to the proposed
development, also testified that she cannot see the proposed development site from her
house because some trees and her neighbour’s house block the view. However, Ms.
Cameron did note that this was in respect of the site in its present state. She felt she
would be able to see a development that was as high as the one proposed.
[44] Both Ms. Manuel and Ms. Cameron testified they could hear traffic noise
from the highway at peak times. Ms. Manuel also testified that she could hear noise from
construction taking place in Lantz, which is some distance further away from her property
than the proposed development site.
[45] The Municipality denied that noise or light would adversely affect the
Appellants. It said that distance and existing trees, both on the Appellants’ properties and
between them and the development, would block light and dampen sound. It also said
that the approved development agreement required the developer to implement further
measures to reduce the light and sound associated with the development.
[46] Ms. Gilbert testified that a requirement in the development agreement for a
screening buffer along the northwest boundary of the property would deal with any
headlights from traffic moving around the site. Section 2.13 of the proposed development
agreement identifies several options for this buffer, including a fence, trees, hedges, or a
berm with a hedge.
[47] Ms. Gilbert also noted that the proposed development agreement requires
all outdoor lighting to reflect away from adjacent properties. She said residents on
adjacent properties might be able to be see lights from the higher floors in the taller
buildings, but this would only be internal lighting. The Board notes that while s. 2.17 of
the development agreement requires light to reflect away from adjacent properties, the
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developer is only “encouraged” to use sensitive lighting which is orientated downward, is
low wattage, energy efficient and minimizes glare.
[48] In respect of sound, Ms. Gilbert testified that she expected that the
commercial uses on the property would be noisier than the residential uses, but she did
not consider this a significant impact because the area is zoned for commercial uses. At
this point, it is not known what the commercial uses on the site will be. The Appeal Record
filed in this proceeding includes a January 15, 2020, report prepared by Ms. Gilbert
commenting on potential commercial uses:
It’s unclear what commercial use will be located into the building as an end user has not been identified. The ground floor could potentially accommodate a mixture of the commercial uses.
[Exhibit C-2, p. 15]
[49] Additionally, the Board observes that a policy analysis in the Appeal Record
prepared by municipal staff noted that the development agreement does not restrict hours
of operation. Once again, planning staff considered this to be reasonable because the
area is zoned commercial.
[50] Ms. Gilbert said that while the screening buffer would reduce the noise from
the ground floor commercial uses, it would not have an impact on any noise from the
residential use above the height of the buffer. She noted that trees on adjacent properties
would help to cut down noise as well.
[51] Ms. Gilbert’s evidence did not specifically address noise associated with the
construction of the development, potentially over a period of years.
(c) Privacy and Security
[52] The Appellants expressed concerns about their privacy and security. They
are concerned that their properties will be within the view of residents on the higher floors
of the buildings. They are also concerned that the higher density uses will bring more
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people into the area, increasing the number of instances of trespassing and other security
concerns. They noted that their homes are down long driveways and out of sight from
the road. Further, the Appellants said that strangers already often mistake their driveways
for woods roads or trails and they sometimes meet trespassers upon them.
[53] Ms. Gilbert said that when she reviewed the development agreement
application, she considered privacy impacts on the immediate neighbours, but not beyond
that as she felt any privacy impacts would not be significant given the trees on the
neighbouring properties. She did not specifically consider safety or security.
[54] In its submissions, the Municipality argued that even if the Appellant’s
houses and areas around them may be visible from the higher floors in the proposed
development, given the distance and intervening trees, “any impact on privacy will not,
objectively considered, adversely affect the reasonable use or enjoyment of their
properties.” In respect of safety and security, the Municipality submitted there are
significant distances between the development and the Appellants’ properties, and that
there was no evidence that the development will result in trespassing or cause the
Appellants to fear for their safety.
(d) Traffic
[55] The Appellants noted that traffic was a concern, both during construction
and afterwards, despite the conclusions of a traffic study done in October 2019. They
said traffic flow, which they felt was already a problem during peak work hours and on
weekends, would be worse.
[56] In response to this, the Municipality relied on the traffic study done as part
of the development application process. Based on the information in the Appeal Record,
it appears that this study was requested by the Nova Scotia Department of Transportation
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and Infrastructure Renewal because a preliminary analysis indicated that a traffic study
was warranted for the proposed development.
[57] The Municipality said that the conclusions in the study demonstrated that
there were no concerns about the performance of the highway, and that any increase in
traffic was more focussed on the side of the development that was closer to Highway 102,
and not the side where the Appellants own properties. In any event, the Municipality said
the study’s conclusions showed that any increase in traffic would be small and
reasonable.
[58] The Appellants were skeptical about the vehicle movement assumptions in
the report. While they are not traffic experts, the trip counts seemed low to them given
the commercial uses and the number of residential units in the proposed development.
They also noted that, for reasons that they understood to be related to safety and the
grade of the road in the area, they had to move their mailboxes.
(e) Environmental
[59] In respect of the environment, the Appellants said:
We, as property owners, hold a strong interest in the environment. Over development in the RC Zone will have an adverse effect on what we value as residents. Our enjoyment of nature along the river and the areas that it supports will be affected. Our use of the river for such activities as fishing, kayaking and canoeing, will be negatively impacted. High density development along the river results in many people being able to access the river through this one lot, negating the purpose of the buffer zone designed to protect the Nine Mile River from foot traffic and pollutants in runoff. Shading of the river and surrounding land changes the flora and fauna on which animals depend and therefore our enjoyment of them. For example, snapping turtles, which are a vulnerable species in Nova Scotia, use this river bank and surrounding lands and waterways as habitat and nesting territory. They will be put further at risk. A primary reason for us to have purchased properties, and the reason we remain living here, is the natural environment that this rural area provides. Developments such as this one, and those that could follow in this zone, threaten our historic enjoyment of our properties and access to the Nine Mile River.
[Appellants’ Submissions on Aggrieved Person Status, p. 4]
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[60] The Appellants also expressed concern for a “myriad of flora and fauna”
that live in the area.
[61] In its evidence and submissions, the Municipality focussed on a provision
in the proposed development agreement requiring the developer to keep a 30-metre
landscape buffer from the ordinary high-water mark of Nine Mile River. Where it is
practical to do so, the developer must keep the existing vegetation in this area to control
the management of subsurface and surface runoff, sedimentation, and erosion. The
developer must replace any vegetation it removes from this area with a landscaped buffer.
The development agreement does not allow the developer to build any permanent
structure within the buffer.
[62] Ms. Gilbert also testified that there was a steep bank at the edge of the
property along Nine Mile River. She said that the existing vegetation on the property was
not so thick that it would prevent people from walking to the bank, but given the slope of
the bank, she did not see how people would get down to the river.
[63] The Municipality said that the Appellants must show that they “have a bona
fide belief that the development will adversely affect the value or the reasonable use or
enjoyment of their properties” [emphasis in original]. The Municipality also emphasized
that the Province owned Nine Mile River for the use and enjoyment of everyone.
(f) Watercourse 4
[64] The Appellants advanced other specific arguments about Watercourse 4,
which intersects the site of the proposed development and connects with the Nine Mile
River. They said that their properties drain into this watercourse and believed that the
parking lots and building locations would affect the drainage of their properties and may
affect water tables in the area. They also said that the development lacked setbacks from
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Watercourse 4 and that pollution from the parking lots and activities on the site would run
into this watercourse and Nine Mile River.
[65] During cross-examination, the Appellants confirmed that their lands are
higher than the site of the proposed development. The natural drainage in the area is
that water flows from their properties towards the developments site. There was no
suggestion that the proposed development site would direct stormwater onto the
Appellants’ properties.
[66] The Municipality argued that the Appellants’ concerns about drainage and
water tables were speculative and remote. It pointed to a requirement in the development
agreement for a stormwater management plan before a development permit can be
issued. As discussed by Ms. Gilbert in her testimony, and set out in s. 4.3(d) of the
proposed development agreement, the plan must show that storm flow is balanced before
and after the development, and there is no negative impact to existing inflow and outflow
of the cross culvert connecting to the brook.
[67] The Board also notes that the development will connect to municipal water
and wastewater services.
(g) Property Value
[68] The Appellants feared that the proposed development would devalue their
properties in both a monetary sense and more intangibly.
[69] The Municipality submitted that the Appellants supplied no evidence to
support the position that the proposed development would adversely affect the value of
their properties and argued that this belief was speculative and self-serving. The
Municipality said the proposed development could just as easily increase property value,
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noting that the proposed development was not of a nature that might suggest a prima
facie adverse affect on property value, such as the development of a landfill.
[70] At the hearing, it appeared to the Board that the Appellants agreed with the
Municipality, to some extent, that the development’s impact on the monetary value of the
property was speculative. However, they told the Board that they had no specific intention
to sell their properties. Rather, they were concerned with the intrinsic value of their
properties, arising from the value they associated with their family owning the property,
how they have treated the land, and the value they placed on leaving their land as an
inheritance.
Aggrieved Person Status in this Case
[71] In the “Citizen Engagement” section of the Municipal Planning Strategy, the
Municipality stated:
The public is often concerned when something new, large, or different is proposed in or near their community. Communities live with the consequences of planning decisions and thus expects to share in and be responsible for their decision making.
[Exhibit C-2, Municipal Planning Strategy Section B, Page 3]
[72] The proposed development in this case ticks all these boxes; it is new,
large, and different.
[73] The Appellants said that the area where the proposed development would
be constructed was historically made up of large single residential lots, with agricultural
and forest resource uses. Municipal staff described it as “an area which feels semi-rural
in nature.” Although the area has been in the Regional Commercial Zone since 2000,
municipal staff reports noted the proposed development was “the first application to
propose a more denser form of commercial development.”
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[74] The municipal staff report referenced by the Appellants, but not included in
the Appeal Record, referred to the development (which the Board finds did not
substantially change when it was resubmitted for approval) as “somewhat out of keeping
with the current character of the immediate surrounding area.” The staff reports in the
Appeal Record noted that the design of the proposed development does not match
existing buildings in the area and the “four storey and six storey buildings are larger than
already existing in the area.” Not only are the buildings larger, they are taller than what
the Land-use By-law allows in the zone as-of-right. In their testimony, the Appellants said
this development would include the highest buildings in the Municipality.
[75] Since the Municipal Planning Strategy recognizes the public is often
concerned about developments such as the one proposed, it supplies some objective
evidence supporting the reasonableness of the Appellants’ concerns. The Appellants’
concerns, to the extent that the public would share them, would not seem misguided.
[76] Further, the notification requirements adopted by a decision making body
can themselves can be viewed as a factor that strengthens a claim for standing because
they indicate who the decision making body anticipated would be affected by the decision
(Justice Thomas A. Cromwell, Locus Standi: Commentary on the Law of Standing in
Canada (Toronto: Carswell, 1986), p. 108). As such, the fact that the Municipal Planning
Strategy requires the Municipality to take special steps to engage property owners within
300 metres of the site of a proposed development agreement is a factor favouring the
standing of the Appellants that the Board can consider.
[77] As noted in Ollive, the potential effects of a development such as noise,
traffic, wind and shadowing generally have the most impact on the development’s
neighbour. The notification provisions in the Municipal Planning Strategy are consistent
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with this reasoning. Furthermore, at the hearing, Ms. Gilbert agreed that a development
is more likely to affect people living within 300 metres than anyone else.
[78] While none of them are next door neighbours, all the Appellants have
property boundaries within 300 metres of the proposed development. The Cameron
residence is only 111 meters away, not significantly different than the 50- to 75-meter
distance between the proposed developments in Ollive. The Lewis residence is not much
further away at 177 metres from the site of the proposed development. The Manuel
residence is more distant at about a half a kilometer away.
[79] In Maxwell, and similar cases where the Board considered an appellant’s
proximity, the appellant was located some distance away from the proposed
development. The intended appellant in Maxwell lived significantly more than four
kilometres from the proposed rezoning area in that case and owned no other properties
in the immediate area of the proposed rezoning. Furthermore, unlike the present case,
the Board observed that Mr. Maxwell was not really advancing the position that the
municipal council decision, in any way, adversely affected the value or reasonable
enjoyment of his properties.
[80] Although proximity is not determinative, it is a factor for the Board to
consider. If it can be expected that a development will have some adverse impact on the
surrounding area, it is reasonable to expect that those living in proximity would be more
intimately affected.
[81] In response to questions from the Board, Ms. Gilbert testified that,
objectively, it was reasonable to assume that a development such as the one proposed
can have impacts on nearby property owners relating to light, sound, traffic and privacy.
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However, based upon her assessment of the application, she did not believe that the
proposed development would significantly adversely affect the Appellants in this case.
[82] Considering the nature of the proposed development, the surrounding area
and uses, the Board finds that the Appellants’ belief that light from the proposed
development would adversely affect the reasonable enjoyment of their properties lacks
objective support. It seems unlikely that lighting associated with the proposed
development, or from vehicles on the site, would affect the Manuel residence, situated a
half a kilometer away and nestled in a wooded area. While the residences of the other
Appellants are closer, Ms. Cameron, the Appellant who lives the closest to the proposed
development site, cannot see the site in its undeveloped state because her view is
obstructed by trees and her neighbour’s house. Lighting from the ground and lower levels
of the proposed development would be similarly obstructed, even without the creation of
a screening barrier on the northwest boundary of the proposed development site as
required by the development agreement.
[83] It is quite possible that the Appellants might be able to see the top parts of
the taller buildings making up the proposed development. Light from the windows of the
residential units on the upper floors may be visible. If so, it is reasonable to expect that
such light might be no more apparent than lighting that might emanate from their own
properties and the residential property that lies between Ms. Cameron and the site of the
proposed development. It is not reasonable to expect that interior lighting from the upper
residential floors would be able to illuminate any parts of the Appellants’ properties.
[84] Noise from the proposed development is more likely to be a concern than
light, and the Board finds that there is objective support for the Appellants’ belief that
noise from the proposed development will adversely affect them. Unlike light, it is
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reasonable to believe that sound from the development could affect the Appellants,
especially from the commercial uses in the proposed development. Both Ms. Manuel and
Ms. Cameron testified that they could hear traffic at peak times, and Ms. Manuel said she
could hear construction noise from Lantz.
[85] There are also several significant unknowns influencing how reasonable it
is to believe that noise from the proposed development will adversely affect the
Appellants. The nature of these commercial uses is unknown. The hours of operation
for these uses is unknown. Which buffering choice the developer will select is unknown,
as is how effective it will be to dampen sound.
[86] Although Ms. Gilbert may not feel that noise from commercial uses is a
significant impact because the Land-use By-law allows commercial uses in the zone, that
is not the test. As the Board noted in Ollive, the test an aggrieved person must meet is
whether the decision will affect them. For the purposes of determining standing to bring
an appeal, this test does not distinguish between the effects of a development that might
have been undertaken in the zone without the approval of Council and the development
that Council has approved.
[87] Additionally, although it is not a permanent concern, it is reasonable to
assume that noise from construction activities on the site will affect the Appellants. As
noted above, this might occur over an extended period given the phased nature of this
proposed development.
[88] In terms of privacy, the Board must consider the context of the area and its
surrounding uses. At present, this area has a semi-rural feel, and the Appellants live on
large private lots. In such a setting, the privacy impacts of having someone looking down
on your house or property can reasonably be expected to be more impactful than in higher
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density urban or suburban settings where development of the type proposed in this case
already exists. The proposed development would be the first higher density development
in this area.
[89] While this should not be a significant concern for Ms. Manuel because her
residence is a half kilometre away, the Cameron and Lewis residences are much closer.
At approximately a hundred metres, the privacy concerns would be far greater in respect
of the Cameron property. The Board finds that there is an objective basis to support the
belief that there will be adverse privacy impacts on the Cameron and Lewis properties.
[90] As for security concerns, all the Appellants have driveways that appear to
be within 300 metres of the proposed development site. Contrary to the Municipality’s
assertion, this is not a significant distance. The Board accepts that the driveways to the
Appellants’ residences are long, and at least in the case of the Manuel residence, as
much as a half a kilometer. That may be an impediment to strangers accessing these
sites, but it also creates conditions for greater risk because the houses are not easily
seen from the public travelled highway and neighbours are not as close by as in more
densely populated areas.
[91] Proof that the proposed development will result in trespassing on the
Appellants’ properties is not possible, and not required. However, given the significant
increase in development density, with the creation of 94 residential units and new, yet
unidentified, commercial activities, it seems likely that there will be more people coming
into, and staying in the neighbourhood. The Appellants testified that they already meet
trespassers on their property, and it is reasonable to think that this may increase. There
is an objective basis for the Appellants’ belief that there will be adverse security related
impacts.
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[92] It is reasonable to expect that developments such as the one proposed may
create traffic problems. Indeed, the Appeal Record in this case showed that the Nova
Scotia Department of Transportation and Infrastructure Renewal requested the traffic
study that was prepared during the review of the application for the development
agreement. If that department felt that such a study was called for, that is objective
evidence that could support a nearby property owner’s belief that they will be affected by
traffic from the development.
[93] The Board is not inclined to place too much weight on the traffic study
conclusions at this stage of the proceeding. The Board notes from its review of the
information relating to this study in the Appeal Record that, to some degree, the study
made assumptions about the nature of the commercial use in the proposed development.
At this point, however, the actual commercial uses of the site are unknown. The author
of the traffic study was also not called to testify, and Ms. Gilbert conceded that she was
not a traffic expert.
[94] Even if the traffic expert had been called to testify, the Board in this case,
as it did in Ollive, does not believe it is appropriate to review such evidence to conclude
whether there will, in fact, be an adverse effect. As discussed later in this decision,
whether Council considered and evaluated the development agreement in a manner that
reasonably carries out the intent of the Municipal Planning Strategy in respect of the
impact of the proposed development on traffic is a ground of appeal that may be pursued
in this proceeding. In the Board’s view, issues of this nature should be determined at the
hearing of the appeal on its merits when all the evidence, including any expert reports
that the Appellants might choose to introduce, are available and before the Board. They
should not be determined on a summary basis.
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[95] While the extent of any impacts relating to traffic might be debated, the
Appellants’ concern is rationally connected to the proposed development. Furthermore,
the Appellants, who all have driveways close by, and will be travelling the road in front of
the development on a regular, if not daily basis, are uniquely connected to this concern.
The Municipality’s suggestion that traffic from the site travelling away from the Appellants’
properties would not affect the Appellants completely ignores the impact on the
Appellants as regular or daily users of the stretch of road in question. The Board finds
there is an objective basis for the Appellants’ belief that traffic relating to the proposed
development will adversely affect them.
[96] In respect of environmental concerns, if the Municipality’s comment about
ownership of the Nine Mile River was intended to suggest that only the Province could
legitimately raise concerns about any environmental issues associated with the river, the
Board rejects that suggestion. In response to a question from the Board, Ms. Gilbert
agreed that it was reasonable to believe that people have a genuine concern and interest
in environmental issues in their neighbourhood.
[97] Jean Cameron, and Jeanette and Paul Lewis, own properties along the
Nine Mile River near the proposed development. Ms. Cameron’s property boundary is
approximately 72 metres along the river away from the site of the proposed development.
Paul and Jeanette Lewis own property on both sides of the river. They own a woodlot
directly across the river from the proposed development, and their residence is on the
other side of the Cameron property.
[98] That said, the environmental concerns raised by the Appellants are general
in nature, and there does not appear to be a direct connection between them and the
proposed development. For example, it is not clear how the proposed development would
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prevent the Appellants from fishing, kayaking, or canoeing. In respect of habitat for flora
and fauna, the development agreement seeks to preserve natural habitat along the Nine
Mile River with the requirement for a 30-metre buffer.
[99] Similarly, the Appellants’ concerns that the development will affect drainage
on their property and the water table are speculative. Their properties are at higher
elevations than the proposed development site, and they drain towards that site. As noted
above, the proposed development will connect to municipal water and sewer systems.
[100] The Appellants’ concern about contamination running into Watercourse 4
from parking lots and activities on the site is more specific and, the Board finds, more
reasonably connected to the proposed development. Assessing how reasonable those
concerns might be is subject to some uncertainty because the commercial uses on the
site have not been identified. However, it is likely that allowing contamination to flow into
Watercourse 4 or Nine Mile River would contravene federal and provincial legislation. As
such, it should not be expected.
[101] The Appellants appear to have acknowledged that the economic value of
their property may be lower but could also be higher because of the proposed
development. At the oral hearing, their concerns appeared to be more in respect of
intrinsic value of their lands as something to pass onto the next generation. The proposed
development would not prevent the Appellants from leaving their properties as an
inheritance.
[102] Overall, the Board finds that the Appellants’ beliefs that they will be
adversely affected by Council’s decision are bona fide. The proposed development, in
the words attributed to municipal staff, “feels somewhat out of keeping with the current
character of the immediate surrounding area.” Given the significance of this change, their
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close proximity, and the fact that it is reasonable to believe that they will experience some
adverse impacts from the proposed development, particularly in respect of sound, privacy
(except for the Manuel property), security and traffic, the Appellants are aggrieved
persons who may appeal Council’s decision to the Board.
IV ARE THE GROUNDS OF APPEAL WITHIN THE BOARD’S JURISDICTION?
[103] The Municipal Government Act authorizes the Board to hear appeals from
municipal council decisions approving development agreements, but the Board’s
authority is limited. Under s. 250(1)(b) of the Act, an aggrieved person may only appeal
the approval of a development agreement on the grounds that the decision of the council
does not reasonably carry out the intent of the Municipal Planning Strategy. Similarly, the
Board may only allow an appeal if it determines that the decision does not reasonably
carry out the intent of the Municipal Planning Strategy (s. 251(2)).
[104] The Board considered principles relating to applications to strike notices of
appeal in planning matters in Re Dow, 2008 NSUARB 48, and after an extensive analysis,
the Board concluded:
With respect to an application to quash all or some of the grounds of appeal, the party bringing the application has the burden of proof. It is a summary proceeding. The Board is not testing the evidence or considering the merits of the case. Rather the Board must assume that the appellant can prove the grounds plead. The Board is to give the notice of appeal a liberal and broad interpretation so as to ensure that a legitimate appeal is not quashed. The Board finds that modifying the Court’s principles to planning appeals for quashing a notice of appeal, the question the Board must ask is: Assuming the ground is proven, is it absolutely unsustainable or clear beyond any doubt that it cannot show that Council’s decision does not reasonably carry out the intent of the MPS? If there is any chance that the ground could demonstrate that Council’s decision does not reasonably carry out the intent of the MPS, then the ground should not be struck. If it is absolutely unsustainable or clear beyond any doubt that it could not show that Council’s decision does not reasonably carry out the intent of the MPS, then the ground should be quashed. If there is doubt, the notice should not be quashed.
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Even at this stage in the proceedings the Appellants should be permitted to amend their Notice of Appeal to correct a defect in form, subject to any prejudice to the parties that cannot be addressed by other remedies. The Board finds that by ensuring that the ground meets the Board’s limited jurisdiction of potentially showing a Council’s decision does not reasonably carry out the intent of the MPS, the ground has met the strict jurisdictional parameters of the MGA. All other defects in the form are of a procedural nature for which the Board is given broad procedural jurisdiction to do what is fair between the parties. This includes being provided with the ability to exercise other remedies such as amendments and adjournments.
[Re Dow, para. 251-255]
[105] In Elderkin v. M.I.R. I Developments Inc., 2004 NSUARB 65, the Board
recognized that a notice of appeal in a planning appeal to the Board is different from a
statement of claim in a judicial proceeding. It would not be appropriate to impose the
same test as a court might when considering an application to strike a statement of claim.
[106] In municipal planning appeals to the Board, Appellants are often self-
represented, and frequently appear without the assistance of lawyers or planners. In Re
Thompson, 2020 NSUARB 52, the Board noted:
The Board does not consider that the purpose of a notice of appeal is to evaluate an appellant’s ability to meticulously examine and show every aspect of a municipal planning strategy that may have a bearing on their concerns. These are not always easy documents to work with, especially for those not used to them. The notice of appeal should, however, articulate concerns that can form grounds of appeal that have a basis in the municipal planning strategy. They should be clear enough that the respondent understands the issues to be addressed in the appeal.
[Re Thompson, para. 87]
[107] The Appellants filed a Notice of Appeal consisting of the Board’s standard
form with a 28-page attachment. In response to the question on the Board’s standard
form Notice of Appeal that asked them to specify each policy in the Municipal Planning
Strategy, the intent of which they allege Council’s decision has not reasonably carried
out, the Appellants listed 15 separate items:
• Section 8.5.1 - exceeds maximum building height;
• Section 8.5 - exceeds “limited residential uses” (density);
• Intent of RC zone circumvented;
• ED34-C – requirements for development on RC land will not comply when intended subdivision occurs;
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• 10.2.4 – establishing the true high watermark in a high risk flood zone;
• C9-EN5 – neglect of setback from watercourse;
• 3.2.6 – not allowing for appropriate setback from ‘watercourse 4’;
• MPS Section 6 – no allowance for gradual separation between low density (rural) and high density;
• 8.2.3 – lack of buffer between development and agricultural land;
• C-6 Section RD2: Development does not preserve or enhance neighbourhood integrity;
• C-9 Environment: Municipality does not fulfill mandate as environmental stewards;
• C-9 Stormwater management – EN10 – concerns regarding lack of best practices regarding stormwater management;
• Non-adherence to procedural flowchart regarding final decisions made by Council;
• Procedural concerns regarding scheduling a Public Hearing during a pandemic;
• Procedural concerns regarding the live-stream public hearing.
[108] The attachment to the Notice of Appeal supplied further details about these
items and raised others. In written submissions to the Board, Counsel for the Municipality
restated the items listed in the Notice of Appeal and the additional commentary, by
combining them into four groups of related items based on: (1) procedural grounds; (2)
grounds based on alleged violations of the Land-use By-law; (3) grounds based on
alleged violations of the Municipal Planning Strategy; and (4) other grounds (“Financial
Impact” and “Community Impact”).
[109] In response to the Municipality’s motion to strike many of the proposed
grounds of appeal, the Appellants provided more information to support many of the
impugned grounds of appeal. In some cases, this information referred to policies in the
Municipal Planning Strategy not referenced in their Notice of Appeal. At the hearing to
deal with the motion, the Appellants sought leave to amend their Notice of Appeal to the
extent necessary to include these references. In their written pre-hearing submissions,
the Appellants also confirmed that they would not be continuing with some of the grounds
listed in the Notice of Appeal.
[110] The Board’s analysis will follow the grounds listed in the Notice of Appeal,
and those arising from a review of the attachment to the notice. However, as the
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Municipality’s objections to many of them were based on the grounds being either based
on alleged procedural errors or irregularities or alleged contraventions of the Land-use
By-law rather than the Municipal Planning Strategy, these topics will be considered first.
Procedural Errors or Irregularities
[111] The Notice of Appeal and attachment filed by the Appellants raises various
procedural concerns. These include questions relating to Council’s reconsideration of the
proposed development agreement after a motion to approve entering into a development
agreement was defeated on December 18, 2019. The applicant for the development
agreement did not appeal that decision, but instead changed the location of the building
and resubmitted the development proposal that Council accepted.
[112] In the information provided with their appeal, the Appellants also expressed
concern over the hearing processes used to consider the revised application. In
particular, the Appellants said that municipal staff did not supply answers to questions
they had asked and information they had requested. They also said that the live stream
format for the Council hearing that considered the matter, which was used instead of an
in-person hearing because of the COVID-19 pandemic, did not provide for equal access
to all members of the public. In the Appellants’ view, the “hearing should have occurred
at a later time when people could participate in a fair and democratic manner.”
[113] Relying on the Court of Appeal decision in Maskine v. Halifax (County)
(1992), 118 N.S.R. (2d) 356 (C.A.) and the Board’s prior decisions in Colborne et al,
[1994] N.S.U.A.R.B. No. 42 and Federation of Nova Scotian Heritage (Re), 2005
NSUARB 105, the Municipality submitted that the Board does not have the jurisdiction to
determine procedural issues raised by the Appellants. Consistent with those decisions
and, more recently, Leonhard (Re) 2020 NSUARB 31 (para. 58), the Board accepts the
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Municipality’s submissions and finds that the grounds of appeal relating to the Appellants’
concerns about process and access to public meetings and information should be struck.
Contraventions of the Land-use By-law
[114] In support of some grounds set out in the Notice of Appeal, the Appellants’
refer to requirements in the Land-use By-law, but do not reference any relevant policies
in the Municipal Planning Strategy. The Municipality submitted that non-compliance with
the Land-use By-law is not a valid ground for challenging or overturning Council’s decision
to enter into a development agreement and supported this argument with reference to the
Nova Scotia Court of Appeal decision in Canada Life Assurance Company v. Colchester
(County) (1996), 152 N.S.R. (2d) 234 (C.A.).
[115] In responding to this argument, the Appellants referenced s.251(2) of the
Municipal Government Act and noted, in particular, that the language permitting the Board
to allow an appeal based on a conflict with the provisions of the land-use by-law:
251 (2) The Board shall not allow an appeal unless it determines that the decision of 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. [Emphasis added]
[116] At the videoconference hearing for the motion, the Municipality submitted
that the argument was based on a misinterpretation of the provision. The Municipality
said that the wording in s.251(2) reflects the fact that appeals may be brought to the Board
not only from decisions of a municipal council, but also from certain decisions made by a
development officer. The decisions of the development officer may be appealed if they
do not comply with a land-use by-law or a subdivision by-law. As such, the Municipality
said that s.251(2) must be read in the context of these provisions in s.251. The Board
concurs. The position advanced by the Municipality is consistent with past judicial and
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Board decisions interpreting the Board’s jurisdiction in appeals from municipal council
decisions relating to the approval of development agreements.
[117] Development agreements can and do override land-use by-laws, so the fact
that a proposed development does not comply with a requirement in a land use by-law
does not, in and of itself, establish that the decision to approve a development agreement
for such a development does not reasonably carry out the intent of a municipal planning
strategy. That is not to say, however, that a standard established in a land-use by-law
cannot be a relevant factor to consider when assessing whether the Municipality has
interpreted and applied a policy in its municipal planning strategy in a manner that it can
reasonably bear.
[118] Planning decision appeals in Nova Scotia have recognized that reflexivity
exists between a municipal planning strategy and a concurrently adopted land-use by-
law. When a municipal council adopts a municipal planning strategy or makes
amendments to its strategy involving policies regulating land use and development, the
municipality must, at the same time, also adopt or amend a land-use by-law to implement
those policies (Municipal Government Act, s. 219).
[119] In J & A Investments Ltd. v. Halifax (Regional Municipality), [2000] N.S.J.
92 (S.C.), where the meaning of an land-use by-law was in issue, Justice Davison
reasoned that s. 219(1) of the Municipal Government Act means that a municipal planning
strategy may be used to help determine the intent of the land-use by-law.
[120] The language of s. 219(1) of the Municipal Government Act is similar, but
not identical to, s. 51(1) of the Planning Act, which requires council to "concurrently" adopt
or amend the land-use by-law. Referring to s. 51(1) of the Planning Act, the Court of
Appeal, in 3012543 Nova Scotia Limited v. Mahone Bay et al., 2000 NSCA 93, stated that
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a review of the land-use by-law may assist in "throwing light on the intent" of the municipal
planning strategy and, therefore, used a provision of Mahone Bay’s land-use by-law to
assist in interpreting its municipal planning strategy:
A search for the intent of a municipal planning strategy requires a careful review of the strategy represented by the policies of the municipality and, very often, a review of the By-laws implementing the strategy as the by-laws adopted concurrently with the MPS may assist in throwing light on the intent of the strategy. [para. 95]
[121] Thus, according to Nova Scotia’s present case law, the Board considers
one may use a municipal planning strategy to help determine the intent of the land-use
by-law (J & A Investments), and use the land-use by-law to help determine the intent of
the municipal planning strategy (Mahone Bay).
Grounds in Notice of Appeal
(a) Ground 1 - Section 8.5.1 - Maximum Building Height
[122] Section 8.5.1 of the Land-use By-law restricts as-of-right development in
the Regional Commercial Zone to a maximum building height of 16 metres. The proposed
six-storey and four-storey buildings exceed this with heights of 18.3 metres and 17.4
metres. The Appellants said that this development would include the highest buildings in
the Municipality. The Appellants did not refer to any policy in the Municipal Planning
Strategy, and as such, the Municipality argued that non-compliance with the height
requirement in the Land-use By-law was not a valid ground of appeal.
[123] In response, the Appellants offered an interpretation of Policies ED27 and
ED31 suggesting that, in this case, the flexibility of Council to override development
requirements in the Land-use By-law did not extend to building height. These provisions
read:
ED27. Council shall establish provisions for the Regional Commercial (RC) Zone under the Land Use Bylaw including requirements for permitted uses, lot coverage and area, frontage, height and floor area, yard setbacks, building height, lighting, signage, and vehicle access.
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ED31. Given the changing face of medium and large scale commercial retail development, and increasing demand for same in the Elmsdale area, Council shall provide for additional development options and relaxed standards in the Regional Commercial (RC) zoned area. Such options are consistent with the overall intent of the RC Zone to provide for a wide range of commercial activity to foster economic growth, and include a removal of the building square footage maximum, reduced minimum lot sizes, development by right-of-way easement (removal of lot frontage requirements) and variations in the signage provisions of the LUB.
[124] As the Board understands the argument, the Appellants are suggesting that
Policy ED27 directs Council to establish specific development requirements in the Land-
use By-law, and that Policy ED31 only authorizes Council to relax some of those
requirements and, in particular, does not allow Council to relax the standards relating to
height. While this interpretation may not be the only possible interpretation of the
requirements of the Municipal Planning Strategy, the Board is unable to conclude that the
argument is absolutely unsustainable.
[125] Additionally, it appears to the Board that the Appellants are not suggesting
that the only problem with the height of the building is that it does not adhere to the height
limitations in the Land-use By-law. They believe it is too high for the area. As set out in
the attachment to their Notice of Appeal, “The location, size, height and scope of the
proposed buildings, the supporting infrastructure and the number of inhabitants will
directly and negatively impact the way of life and livability of the area residents invest in,
pay taxes on, and call home.”
[126] Policies IM27 and IM28 list the criteria that Council must consider when
evaluating any development agreement application and the terms and conditions in the
agreement to ensure consistency with the policies in the Municipal Planning Strategy and
sustainable development practices. Under IM27, Council must consider the impact of the
proposed development agreement on existing uses in the area with particular regard to
various factors including the size of the proposed structures (IM27(a)) and that the
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proposed development is compatible with existing development forms in respect of
several factors, including height (IM27(i)). Under IM28, Council must include terms and
conditions in the development agreement to ensure consistency with the Municipal
Planning Strategy policies, where applicable, relating to the size of structures (IM28(a))
and height (IM28(d)). The Board considers that the concerns the Appellants have raised
about the inappropriateness of the proposed height of the of the development trigger
these aspects of the Municipal Planning Strategy.
(b) Ground 2 - Section 8.5 – Limited Residential Uses
[127] The Appellants refer to s.8.5 of the Land-use By-law which says the intent
of the Regional Commercial Zone is to provide for commercial uses. While the zone
allows mixed-use development agreements, s.8.5 refers to limited residential
development.
[128] In the attachment to the Notice of Appeal, the Appellants expressed the
view that the proposed development “is not ‘more denser form of commercial
development’ but a high density residential application to an RC Zone.” They also said,
“[i]nstead of a commercial development, this area is now being developed as high density
residential.” Once again, the Appellants did not refer to any policy in the Municipal
Planning Strategy, and as such, the Municipality argued that non-compliance with the
Land-use By-law was not a valid ground of appeal.
[129] In their response to the Municipality’s motion to strike this ground, the
Appellants referred to the Regional Commercial (RC) Policy Goal:
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Council’s goal is to facilitate the development of a regional, large-scale service-based commercial area with a wide range of retail goods and services, and business uses in a land-intensive, vehicle dependent environment. A regional-scale commercial area will allow for a convenient shopping environment for East Hants residents and the traveling public and for large-scale commercial development with minimal impact to the built and natural environment.
[Exhibit C-2, Municipal Planning Strategy, Section C7 – Page 5]
[130] Although set out under the heading addressing the height of the proposed
development, the Appellants also refer to similar statements in Policies ED24 to ED26:
ED24. Council shall establish the Regional Commercial (RC) Designation with the intention of allowing for the development of a wide range of largescale commercial activity including warehousing, retailing of goods and services, food and beverage facilities, accommodation, entertainment facilities, office and business services, drive-thru restaurants, services stations, shopping malls, and other vehicle dependent uses within a concentrated area, thus having minimal impact on the built and natural environment. ED25. Council shall apply the Regional Commercial (RC) Designation to specific, pre-designated lands to foster economic growth and to encourage a desirable and functional growth pattern on lands near arterial highway interchanges. ED26. Council shall require that the provisions of the Regional Commercial (RC) Zone be consistent with the overall intent of the Regional Commercial (RC) Designation and that the purpose of the RC Zone shall be to allow for a range of intensive goods and services uses in a controlled built and natural environment.
[Exhibit C-2, Municipal Planning Strategy, Section C7 – Pages 5-6]
[131] While the Municipal Planning Strategy allows mixed-use developments, the
Appellants characterize this development as a high-density residential development and
not the commercial development contemplated for the zone. In support of this, they also
compare the residential density of the proposed development to other developments and
said that the proposed development would have a residential density exceeding other
existing and planned development in the Municipality.
[132] The Board finds that this ground is connected to the referenced policies in
the Municipal Planning Strategy and may be pursued by the Appellants in this appeal.
(c) Ground 3 - Intent of RC Zone Circumvented if Subdivision Occurs
[133] The essence of this ground of appeal is that after the development occurs,
the property may be subdivided in a way development would not have been allowed to
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occur in the first place. More specifically, although Policy ED34 in the Municipal Planning
Strategy permits Council to consider a development agreement for a mixed use
development in the Regional Commercial Zone, certain requirements must be met
including that the proposed residential uses must have frontage on the Nine Mile River
(ED34(c)), the proposed commercial ground floor must equal or surpass the residential
ground floor area (ED34(e)), and the proposed residential uses should be in the rear yard
or above commercial uses (ED 34(f)). In this case, the plans included in the development
agreement application showed a potential future subdivision of the property that would
leave the six-storey multi-unit residential building on its own parcel divorced from any
commercial uses and the four-storey mixed-use building would not be on a parcel that
had frontage on the Nine Mile River.
[134] In their Notice of Appeal, the Appellants noted that there was some
discussion about restricting subdivision as-of-right in the development agreement at the
Council meeting that approved the agreement. This potential change to the development
agreement was not pursued based on advice from the Municipality’s Director of Planning
and Development that this would be a substantial change that would not be appropriate
to make at the public hearing. The Appellants said, “[t]he issue of allowing subdivision of
this property must be dealt with in the current development agreement.”
[135] The Municipality objected to this ground of appeal on the basis that the
Appellants did not specify any basis for this ground of appeal in the Municipal Planning
Strategy. Additionally, the Municipality noted that this ground addressed a concern about
a future and speculative subdivision and not the currently impugned Council decision.
[136] In their response to the Municipality’s submission, the Appellants referred
to Policy UD42(e), which requires that Council specify matters regarding subdivision of
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lands in a development agreement for the development of any Walkable Comprehensive
Development District (incorporated by reference for the Regional Commercial Zone by
Policy ED 34). At the videoconference hearing, the Municipality acknowledged that if the
Appellants were alleging that Council’s decision failed to comply with Policy UD42(e) that
would be a valid ground of appeal; however, the Municipality submitted that this was not
reflected in the Notice of Appeal, and that an amendment would be required for the
Appellants to proceed with this ground.
[137] While not specifically set out in the Notice of Appeal, the Board finds that
the general position advanced by the Appellants, that the current development agreement
should have dealt with whether a subdivision of the property would be permitted in light
of the requirements set out in Policy ED34(c), (e) and (f) is connected to Policy UD 42(e).
The Appellants can continue with this ground of appeal.
(d) Ground 4 - ED34(c) - Requirements for Development in RC Zone Will Not Be Met When Intended Subdivision Occurs
[138] This is a restatement of the ground just discussed in (c) above and does not
require further comment.
(e) Ground 5 - 10.2.4 - Establishing the True High-Water Mark in a High-Risk Flood Zone
[139] The proposed development agreement requires the developer to keep a 30-
metre landscape buffer from the property boundary with the ordinary high-water mark of
the Nine Mile River and prohibits the building of permanent structures within the buffer.
The Appellants said that their concern is about how the buffer is measured, and they are
seeking clarification to evaluate if the establishment of the high water mark is in
compliance with the Municipal Planning Strategy and Land-use By-law regarding
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watercourses. The Municipality said this is not a valid ground of appeal but appears to
be a request for information. The Board concurs.
[140] The development agreement clearly established the requirement for the
buffer. While the development agreement did not define “ordinary high water mark,” Part
2 of the Land-use By-law defines it:
Ordinary High Water Mark means the limit or edge of a body of water where the land has been covered by water so long as to wrest it from vegetation or to mark a distinct character upon the vegetation where it extends into the water or upon the soil itself.
[Exhibit C-2, Land-use By-law, Page 2-12]
[141] The Appellants seem to be concerned about where this mark exists
physically on the ground, as a question of fact, or a matter of surveying opinion. If the
Appellants are concerned with whether the ordinary high-water mark will be appropriately
found to accurately measure the 30-metre buffer, the Board finds this to be a question of
compliance with the development agreement. This is not a valid ground of appeal in this
proceeding.
(f) Ground 6 - C9-EN5 - Setback from Nine Mile River
[142] The Appellants referred to Section C9 of the Municipal Planning Strategy,
and specifically to Policy EN5, which directs Council to require that development is
setback from watercourses, including lakes, permanent watercourses, intermittent
watercourses, and seasonal watercourses. The Appellants also refer to s.3.26 in the
Land-use By-law, which shows setback distances for structures near watercourses.
[143] In the pre-hearing submissions, the Appellants confirmed that their concern
about setback distances from watercourses relates to Watercourse 4, which is addressed
in the next part of this decision. The Appellants said that they are not pursuing a ground
of appeal based on a setback requirement for the development from Nine Mile River.
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(g) Ground 7 - 3.26 – Setback from Watercourse 4
[144] The basis for this ground of appeal is in Section C9 of the Municipal
Planning Strategy generally and EN5 specifically as discussed above. In addition, the
Appellants have also emphasized the related policies in Section C9 (EN5 to EN 8) in their
response submissions:
EN5. Council shall require that development is setback from watercourses including lakes, permanent watercourses, intermittent watercourses and seasonal watercourses. EN6. Council shall regulate the development of residential and commercial properties abutting or near any watercourses or wetlands, to sufficiently reduce the level and nature of pollutants entering the Municipality’s water systems. EN7. Council shall encourage that lands within the setback are maintained as vegetated greenbelts to aid the control of pollutants, sedimentation, erosion, and subsurface and surface flows. EN8. Council shall control the alteration of land levels within the watercourse setback to control soil erosion and sedimentation.
[Exhibit C-2, Municipal Planning Strategy, Section C9 – Page 3]
[145] The Municipality acknowledges that this is a valid ground of appeal except
to the extent that it relies on s.3.26 in the Land-use By-law, which the Municipality said
should be struck. As discussed above, the alleged contravention of the Land-use By-law
cannot, in and of itself, prove that the decision of Council did not reasonably carry out the
intent of the Municipal Planning Strategy. However, s.3.26 may help to interpret the
policies set out in the Municipal Planning Strategy and, to that extent, might be of some
relevance in addressing the valid ground of appeal based on the watercourse related
policies in Section C9 of the Municipal Planning Strategy.
(h) Ground 8 - Municipal Planning Strategy Section 6 - Allowance for Gradual Separation of Uses of Different Densities
[146] With reference to Community Priority 6, the Appellants alleged that the
development agreement should have required more of a transition between use densities.
The Municipality acknowledges that this is a permitted ground of appeal.
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(i) Ground 9 - 8.2.3 - Buffer for Adjacent Agricultural Land
[147] The Appellants allege that buffering or screening is needed for agricultural
property on the southeast property boundary of the proposed development and refer to
s.8.2.3 of the Land-use By-law. The Municipality objected on the basis that the alleged
contravention of the Land-use By-law does not prove that the decision of Council does
not reasonably carry out the intent of the Municipal Planning Strategy.
[148] A review of the Notice of Appeal and the submissions filed in response to
the Municipality’s objection makes it clear that the Appellants are objecting to a conclusion
reached in the policy analysis undertaken by the Municipality’s planning staff. The
comment made by planning staff was in respect of Policy IM27(g); however, staff also
made related comments in relation to Policies IM27(a), and IM28(c):
IM27. Council shall consider the following evaluation criteria for any development agreement application: a) The impact of the proposed development on existing uses in the area with particular
regard to the use and size and of proposed structure(s), buffering and landscaping, hours of operation for the proposed use, and other similar features of the proposed use and structures.
g) Adequacy of the size of the lot to ensure required buffering and screening can be
carried out. IM28. Terms and conditions of the agreement to ensure consistency with Strategy policies and the employment of sustainable development practices shall include, but are not limited to the following where applicable: c) Provisions for adequate buffering and screening to minimize the impacts of the
development on adjacent uses, such buffering and screening to be designed with consideration given to the types of impacts that may be felt by adjacent properties (ie. noise, headlights, dust, etc.).
[Exhibit C-2, Section E2 – Pages 8-9]
[149] These policies are related to the concern raised by the Appellants, and as
such, the Board finds that this ground of appeal may be pursued in this proceeding. As
discussed previously, any non-compliance with s.8.2.3 of the Land-use By-law does not,
in and of itself, prove that the decision of Council did not reasonably carry out the intent
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of the Municipal Planning Strategy. However, that does not mean that s.8.2.3 may not
be able to inform the interpretation of the policies set out in the Municipal Planning
Strategy and, to that extent, might be of some relevance in addressing the screening and
buffering provisions in Policies IM 27 and IM 28 of the Municipal Planning Strategy.
(j) Ground 10 - C-6 Section RD2: Neighbourhood Integrity
[150] As noted previously, the Appellants submitted, “[t]he location, size, height
and scope of the proposed buildings, the supporting infrastructure and the number of
inhabitants will directly and negatively impact the way of life and livability of the area
residents invest in, pay taxes on, and call home. In this context, the Appellants noted
Policy RD2 in the Municipal Planning Strategy requires Council to encourage context
sensitive intensification and infill residential development that complements surrounding
homes and preserves or enhances neighbourhood integrity.
[151] The Municipality pointed out that Policy RD2 applies to formal residential
zones in the Municipal Planning Strategy, and not the Regional Commercial Zone. This
statement is correct, but the obvious concern of the Appellants is that the development,
in their view, is not compatible with the existing uses in the area. As was discussed in
Ground (1) relating to the height of the proposed development, these concerns are
connected to the criteria that Council must evaluate for any development agreement in
Policies IM27(a) and (i), and may be advanced by the Appellants in this proceeding on
that basis.
(k) Ground 11 - C-9 Environment: Environmental Stewardship
[152] The Appellants assert that, in approving the development agreement, the
Municipality failed in its responsibilities under Section C9 of the Municipal Planning
Strategy to function as a steward for the environment to ensure the sustainability of
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natural resources. The Municipality acknowledges that this is a permitted ground of
appeal.
(l) Ground 12 - C-9 and EN 10 - Stormwater Management Best Practices
[153] The Appellants assert that, in approving the development agreement, the
Municipality has failed in its responsibilities under Section C9 of the Municipal Planning
Strategy in respect of stormwater management. Section C9 includes a subsection that
sets out several policies relating to stormwater management. The Appellants have also
referenced Policy EN10 as well. The Municipality acknowledges that this is a permitted
ground of appeal.
(m) Ground 13 - Non-adherence to Council’s Final Decision
[154] Council originally rejected an application for a development agreement by
the developer at a meeting on December 18, 2019. After making an adjustment to the
location of one of the buildings, the application was resubmitted and later approved by
Council on April 29, 2020. The Appellants object to the fact that although the December
2019 Council decision was not appealed, the developer was allowed to resubmit an
application that, in the Appellant’s view, was substantively the same and that Council
reached a different conclusion.
[155] The Municipality said that this was a procedural issue that was beyond the
Board’s jurisdiction. The Board agrees with this submission and finds that this is not a
valid ground of appeal for the reasons set out above under the heading “Procedural Errors
and Irregularities.”
(n) Ground 14 - Procedural Concern - Public Hearing During a Pandemic
[156] In their pre-hearing submissions, the Appellants said that they are no longer
pursuing this ground of appeal.
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(o) Ground 15 - Procedural Concern - Live-stream Public Hearing.
[157] In their pre-hearing submissions, the Appellants said that they are no longer
pursuing this ground of appeal.
(p) Ground 16 - Financial Impact – Sidewalks
[158] In the Notice of Appeal, the Appellants discussed financial issues
associated with the construction of a sidewalk from the nearby Superstore along Highway
214 to the proposed development. Additionally, the Appellants also expressed the
concern that the contemplated sidewalk would not extend to the Elmsdale Shopping
Centre on the other side of the Highway 102 interchange, noting that sidewalks from that
location provided a connection to the Village Core.
[159] In response to an objection from the Municipality that this concern was
based on who would pay for the cost of the sidewalk, and not on any alleged failure to
comply with the Municipal Planning Strategy, the Appellants advised that they were not
pursuing an appeal based on the financial issues associated with the construction of the
sidewalk. However, the Appellants maintained their position that there was an issue with
the decision of Council because there was no connection between the Superstore and
the sidewalk at Elmsdale Shopping Centre leading to the Village Core. In support of this,
the Appellants referred to Policies TS1 and TS2:
TS1. Council shall maintain and upgrade sidewalks and pedestrian walkways within the municipality, as necessary, to provide for safe and convenient pedestrian movement. TS2. Council shall require developers to construct new sidewalks and walkways, as set out in the Subdivision Bylaw and Municipal standards, in order to provide pedestrians with continuous, integrated sidewalks and walkways for access to public facilities, shopping areas and residential neighbourhoods throughout the Municipality.
[160] At the videoconference hearing for these matters, the Municipality said that
a ground for the appeal based on Policy TS2 may be a valid ground to pursue but would
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require an amendment to the Notice of Appeal. The Board finds that the Appellants may
advance a ground of appeal based on the extension of sidewalks under Policy TS2 in this
appeal.
(q) Ground 17 - Community Impact
[161] In the attachment to the Notice of Appeal, the Appellants raised several
concerns, many of which overlap with the grounds of appeal considered already. New
concerns raised in this section include the impact of proposed development school
capacity and traffic issues. In its submissions to the Board, the Municipality noted that
although specific provisions of the Municipal Planning Strategy were not identified by the
Appellants, these concerns related to provisions applicable to Council’s decision, such as
Policies UD38, UD42 and IM27. As such, the Appellants may advance these concerns
in this appeal.
Policies at Issue in this Appeal
[162] As noted above, the Municipality submitted that some arguments advanced
by the Appellants in their pre-hearing submissions and evidence at the hearing related to
the Municipal Planning Strategy but were not included in the Notice of Appeal. The
Municipality said that the Appellants would need to amend the Notice of Appeal to include
those. The Appellants, in turn, requested leave to amend as necessary to include these
arguments. Although no formal motion to amend the Notice of Appeal was made in
advance of the hearing, the Board finds that it is able to deal with the request to amend
at the present time, and will not require a more formal request from the Appellants.
[163] As noted by the Board in Re Dow, the Board should allow amendments
subject to any prejudice to the other parties that cannot otherwise be addressed. Given
the early stage of this proceeding, and the nature of the evidence and submissions
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canvassed during the hearings, the Board finds that no prejudice would arise from
amendments at this time.
[164] In a number of cases, the Board finds that the essence of many concerns
advanced by the Appellants in their Notice of Appeal, while perhaps not specifically
associated with a specific policy in the Municipal Planning Strategy, can be readily related
to one or more policies as noted above. Further, the Board finds that, with some
exceptions noted below, the thorough canvassing of the proposed grounds of appeal by
the parties in advance of, and at the hearing, provides the Board with ample basis for
setting an outline for the issues that may be raised in this appeal. In these circumstances,
and given the format of the Notice of Appeal that was originally filed, the Board finds that
requiring a refiling of the Notice is unnecessary and would only further delay moving
forward with the substantive issues for this appeal.
[165] The exceptions where more information from the Appellants would be
helpful are in respect of Grounds 11 and 12 discussed above, dealing with Environmental
Stewardship and Wastewater Management. These were grounds that the Municipality
acknowledged were within the scope of Section C9 in the Municipal Planning Strategy.
However, the Board finds that it would be beneficial, given the extent of the issues raised
in this proceeding, for the Appellants to identify the specific policies in Section C9 that will
be addressed in dealing with these concerns. They are directed to do so before the date
of the preliminary hearing, yet to be scheduled, to set dates for the main hearing of this
appeal and the remaining pre-hearing processes.
[166] Based on the Notice of Appeal, and the evidence and submissions for this
hearing, the Appellants can advance the grounds of appeal outlined below in this appeal:
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• Section A.2 – Plan Direction
o Community Priority 6
▪ Whether a gradual separation between low-density and high-density uses is needed and has not been required in the development agreement
• Section C3 – Urban Design & Community Character
o Policy UD42(e) (incorporated by Policy ED34)
▪ Whether the development agreement should have included a provision restricting future subdivision to respect the requirements in Policies ED34(c), (e) and (f)
• Section C4 – Transportation
o Policy TS2
▪ Whether the development agreement should have included provisions requiring the construction of new sidewalks (connecting to the Elmsdale Shopping Centre)
• Section C7 – Economic Development
o Policies ED24 – ED26
▪ Whether the development is a residential development that does not carry out the intent of the Regional Commercial Zone
o Policy ED31
▪ Whether Council can relax the height requirements for the zone under Policy ED27
• Section C9 – Environmental
o Environmental Stewardship – specific policies to be identified by the Appellants.
o Stormwater Management – specific policies to be identified by the Appellants.
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o Policies – EN5 – EN8
▪ Whether a setback for the proposed development from Watercourse 4 is needed and has not been required in the development agreement.
o Policy EN10
▪ Whether Council has encouraged the use of stormwater best practices as part of a Stormwater Management Plan for the proposed development
• Section E2 – Administration
o Policy IM27 – Whether Council considered and evaluated the development agreement in a manner that reasonably carries out the intent of the Municipal Planning Strategy in respect of
▪ IM27(a) – the impact of the proposed development on existing uses
in the area (use, height, and screening/buffering)
▪ IM27(b) – the impact of the proposed development on school capacities
▪ IM27(c) – the impact of the proposed development on pedestrian and
motor traffic
▪ IM27(g) – the adequacy of the size of the lot to ensure required buffering and screening
▪ IM27(i) – the compatibility of the proposed development with existing
development (density and height)
o IM28 – Whether the development agreement includes applicable terms and conditions to ensure consistency with Municipal Planning Strategy policies and sustainable development practices relating to
▪ IM28(a) - the use and size of structures
▪ IM28(c) - adequate buffering and screening to minimize the impacts of the development on adjacent uses
▪ IM28(c) – height
▪ IM28(i) – methods of protection of the land and watercourses and mitigation practices during and after construction of the proposed development
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▪ IM28(j) – methods of stormwater management on-site during and after construction
[167] Other specific policies may be added to this list in response to the Board’s
direction to the Appellants to supply more specific policy references relating to their
concerns about environmental stewardship and wastewater management.
[168] As a final comment, the Board reiterates that, in identifying the grounds of
appeal that may be pursued in this proceeding, the test to be applied is whether the
potential ground is absolutely unsustainable. That is not a high threshold. At the hearing
on the merits of the appeal, however, the Appellants must meet a very different test, and
demonstrate on a balance of probabilities that Council’s decision does not reasonably
carry out the intent of the Municipal Planning Strategy. Additionally, the Board must
consider the Municipal Planning Strategy in its entirety, recognizing that the primary
responsibility for planning in the Municipality is vested in its elected and democratically
accountable Council. As such, if there are policies in the Municipal Planning Strategy
that are in conflict, Council is entitled to make a value judgment in choosing between the
policies. In such a case, barring an error of fact or principle, the Board must defer to the
Council's compromises of conflicting intentions in the Municipal Planning Strategy.
V SUMMARY AND CONCLUSION
[169] The Board finds that the Appellants are aggrieved persons and that they
may continue with this appeal.
[170] In Part IV of this decision, the Board reviewed the various grounds for
appeal set out in the Notice of Appeal filed in this proceeding, and those raised in the
various submissions and evidence relating to the motion to strike many of the grounds of
appeal. Based on this review, the Board provided directions for addressing the grounds
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raised by the Appellants, and new grounds arising from the Appellants’ evidence and
submissions that the Board allowed to be included in the Appeal. In two areas, dealing
with environmental matters and stormwater management, the Appellants are directed to
identify the specific policies in Section C9 of the Municipal Planning Strategy that are
implicated by the concerns they have raised in these areas.
DATED at Halifax, Nova Scotia, this 12th day of August, 2020. ______________________________ Stephen T. McGrath