Quote:
Originally Posted by OldDartmouthMark
I agree. It is a concern. Sounds like it's time for citizens to be getting after their councillors and asking for answers.
|
My concern with councillors is specifically about their actions as members of the community councils which decide development matters.
When developers apply for approval of or amendments to development agreements, the community council’s function is very clearly spelled out in law, and it’s defined quite narrowly: the council may only deny the application if it finds - and it must do so based only on the evidence before it - that the agreement does not reasonably carry out the intent of the Municipal Planning Strategy.
The applications are accompanied by reports from HRM planning staff which recommend that the council either approve or deny, but their recommendations are not binding on council - the decision is solely the councillors’ to make. That’s as it should be. The problem is HOW the decision is made.
Unfortunately, our councillors either don’t understand their role and its limitations, or they do but just don’t care, and instead simply treat the applications - part of which are public hearings - as opportunities to grandstand and pander to voters. Too often they ignore the specific matters at issue and introduce spurious and irrelevant “evidence”, substitute their own ill-informed opinions or imaginings, or those of their loudest constituents, for facts which have already been already established and are not in dispute, or simply invent irrelevant issues out of thin air. Often they don’t even bother to reference the MPS, compliance with which is supposed to be the very basis of their decisions. But councillors don’t seem to care, so long as they’ve flaunted their own development “expertise” and put on the appropriate dog-and-pony show for voters and media, regardless of the facts.
The result, often enough, is that a community council denies an application which has no legal basis for denial. Developers, having already sunk time and money into the project, then have to decide whether to take another run at it by tweaking their application to somehow mollify the council and public, or forge ahead with an appeal to the Utility and Review Board.
In appeals to the UARB, the parties are the developer as appellant and HRM as respondent. Lately, HRM has barely even played a role at the Board hearings, though they’re obliged to be there, of course. HRM hasn’t seriously challenged the developers’ evidence, but, more to the point, the municipality also hasn’t offered any evidence in defence of the community council decisions. And that's for the best of reasons: there IS no valid defence to the councillors’ boneheaded decisions. As a result, these appeals to the UARB have become essentially unopposed applications which the developers nonetheless are obliged to make. HRM just tags along as a spectator to the adjudicative autopsy of the councillors' handiwork.
There are two really good recent examples of this, and if one is interested enough to invest the time, the UARB decisions in Re Hatchet Lake Plaza and Re Cresco Holdings Ltd. make interesting reading. Cresco, which was just decided on March 23, also includes some discussion about Hatchet Lake Plaza and can be found at:
https://www.canlii.org/en/ns/nsuarb/doc/2021/2021nsuarb34/2021nsuarb34.html
In Cresco the developer was seeking a technically necessary but truly minor - even trivial - amendment to its development agreement. Staff recommended without any hesitation that the amendment be approved, and the hearing should have been a largely pro forma exercise.. The application was a little unusual because the property in question straddles the boundary between two districts, which meant that the developer actually had to seek the approval of two community councils: North West, and Halifax and West. A "no" from either one of them would kill the application. And true to form, our intrepid councillors found a way to kill the application. On appeal, on the basis of the facts and the law (as opposed to councillors' idle musings), the UARB wasted no time ordering the councils to approve the application.
For those who’d prefer not to read the whole decision, just consider these selected nuggets from the Board’s comments:
“Despite the staff recommendation, the Community Councils refused the amendment, citing reasons including a lack of active transportation; traffic concerns; transit and pedestrian concerns; environmental concerns, including increased greenhouse gas emissions and the impact on Kearney Lake; and stormwater management concerns...”
“...the task before the Community Councils was to consider the specific application before it and to exercise its authority guided by the relevant policies in the MPS. In this case, the reasons provided by the Community Councils made no attempt to connect the general concerns they identified to specific polices in HRM’s MPS or the existing development agreement...”
“The reasons provided by the Community Councils also appear disconnected from the limited scope of the amendment requested by Cresco. No evidence was presented to the Board in this appeal to reasonably conclude the proposed change to the development agreement would result in impacts touching upon the identified concerns that were materially different than they would be for development already allowed under the current development agreement...”
“This is not a case where there are judgment calls to be made with respect to ambiguous MPS provisions or the exercise of discretion pursuant to such policies. This is a case where there is no evidentiary basis to support the North West Community Council’s ultimate decision..”
“The Board finds that there is no factual evidence before it, or expert opinion evidence, to substantiate that the proposed amendments will generate environmental concerns, or increased stresses on Kearney Lake. As such, the Board concludes that the proposed amendments are consistent with the MPS and the current development agreement. There was no evidence presented by HRM, and no legal arguments were raised, or discovered in the Board’s own review, to establish the contrary proposition”
“The [councils’]decision does not indicate which MPS Policies, or which provisions of the development agreement, the expressed concerns were meant to address in the context of the amendments requested in Cresco’s application.“
“No evidence contrary to that provided by Cresco, or the policy review undertaken by staff, was offered by HRM during the hearing. As with stormwater, there is no evidentiary basis for finding that the proposed amendments are contrary to the MPS. There are also no facts, opinions, or legal arguments to sustain the proposition that a denial of the application by either Community Council, based on wastewater considerations, would be consistent with the MPS.”
“The Board finds the Community Council decisions do not reasonably carry out the intent of HRM’s MPS. The appeal is allowed, and the Community Councils are ordered to approve the proposed amendment to the development agreement.”
I could add even more, but you get the point. In effect, what the UARB said, in the most civil way possible, was that the councillors ignored both the law and their responsibilities, and simply didn’t do their jobs. Again.
This whole pathetic charade is not just simply wrong. It’s terribly and needlessly wasteful of the time and resources of property owners, HRM planners and legal staff, and the UARB, which has more than enough other important work on its plate and other “real” litigants awaiting their turns. And of course, appeals to the Board entail additional costs for lawyers and, typically, expert witnesses (most often engineers). Those are costs which appellants cannot recover from HRM if they win - it’s just "too bad, so sad, eat the cost and piss off". Finally, they can never recover the construction time, including potential market opportunity, lost to what should have been an unnecessary appeal, foisted on them by politicians pulling cheap stunts. It’s disgraceful.
Can’t wait to see what Halifax and West Community Council does with Richmond Yards, which HRM planning staff have recommended they approve.
“WHAT? THIRTY STOREYS? IT’S TOO TALL!”
Prev
, I'm certainly no philosopher or economist.
Linear Mode
