DECISION 2012 NSUARB 155 M04790
NOV A SCOTIA UTILITY AND REVIEW BOARD
IN MATTER OF THE HALIFAX REGIONAL MUNICIPALITY CHARTER
-and-
IN THE MATTER OF AN APPEAL by MONACO INVESTMENTS PARTNERSHIP from a decision of Harbour East Community Council, of the Halifax Regional Municipality, which refused to rezone property at 307 Prince Albert Road and 5 Glenwood Avenue in Dartmouth from C-2 and R-2 to R-4 High Density Residential, and refused to approve a development agreement for the construction of a 15-storey, 94-unit building
BEFORE:
COUNSEL:
INTERVENORS:
PRELIMINARY HEARING DATES:
HEARING DATES:
WRITTEN SUBMISSIONS FOR HEARING ON THE MERITS:
DECISION DATE:
DECISION:
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Wayne D. Cochrane, Q.C., Member
MONACO INVESTMENTS PARTNERSHIP Peter M. Rogers, Q.C. Jane O'Neill, LL.B.
HALIFAX REGIONAL MUNICIPALITY Karen L. Brown, LL.B. E. Roxanne Maclaurin, LL.B.
JEFF WEATHERHEAD, CARL HUNTINGTON, NANCY MCINNIS LEEK Jeff Weatherhead, LL.B.
February 9, 2012 March 26, 2012 April 12, 2012 May 2, 2012
May 4, 7 and 8, 2012
May 30, 2012 - Post-Hearing (Appellant) May 30, 2012 - Post-Hearing (Respondent) May 30, 2012 - Post-Hearing (Intervenors) June 4, 2012 - Reply Submissions (Appellant)
October 12, 2012
Appeal Dismissed
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Table of Contents
1.0 INTRODUCTION .................................................................................................. 4 2.0 ISSUES ................................................................................................................ 5
2.1 Issue 1: Has the Appellant shown, on the balance of probabilities, that Harbour East Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy? ................................................. 5
2.2 Issue 2: Is the Appeal Before the Board of the Re-Zoning Application Only, or of the Re-Zoning Application and the Development Agreement Application? ............................................................................................... 5
2.3 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy? .......................................................... 5
3.0 WITNESSES ........................................................................................................ 6 3.1 For the Appellant, Monaco ......................................................................... 6
3.1.1 Tony Maskine, M.A.Sc., P.Eng........................................................ 6 3.1.2 Mitch Dickey, Planner, HRM ........................................................... 6 3.1.3 Hanqing Wu, Ph.D., P.Eng. ............................................................. 6 3.1.4 Robert T. LeBlanc, APALA, CSLA, ASLA, MCIP, APA, LPP, LEED AP 7 3.1.5 Kenneth R. O’Brien, P.Eng, M. Eng. ............................................... 7 3.1.6 John Heseltine, LPP, MCIP ............................................................. 7 3.1.7 Margot Young, CSLA, MCIP ........................................................... 7
3.2 For the Respondent, HRM, and Intervenors .............................................. 9 3.2.1 Maurice E. Lloyd, P.Eng., FCIP, LPP .............................................. 9
4.0 FACTS ................................................................................................................ 10 4.1 Site Visit ................................................................................................... 38
5.0 ANALYSIS AND FINDINGS ............................................................................... 40 5.1 Preliminary Hearings................................................................................ 40 5.2 Municipal Government Act and Halifax Regional Municipality Charter .... 40 5.3 Usage of Terms: “MPS,” “DMPS,” “RMPS” .............................................. 41 5.4 Burden of Proof ........................................................................................ 41 5.5 Standard of Proof ..................................................................................... 41 5.6 Applicable Principles of Statutory Interpretation ...................................... 41 5.7 Board’s Fact Finding Role ........................................................................ 41 5.8 Municipal Councils as the “Primary Authority” for Planning ..................... 42 5.9 Board’s Limited Authority in Planning Appeals ........................................ 43 5.10 Issue 1: Rezoning ................................................................................... 46 Has the Appellant shown, on the balance of probabilities, that Harbour East
Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy? .................................................................................. 46 5.10.1 Irrelevance of Possible Future Changes to the MPS..................... 46 5.10.2 Rezoning Topics ........................................................................... 47
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5.10.3 A Hierarchy of Municipal Planning Strategies: the Regional Municipal Planning Strategy (RMPS) and the Dartmouth Municipal Planning Strategy (DMPS) ............................................................ 48
5.10.4 DMPS Policy IP-1(c) ..................................................................... 54 5.10.5 Emphasis by Monaco on C-2 Zoning ............................................ 64 5.10.6 Wind, Traffic and Shadows ........................................................... 70
5.10.6.1 Wind ...................................................................... 70 5.10.6.1.1 Are Wind Effects on Lake Banook a Matter
Which may Properly be Regarded under the MPS, in the Context of this Proceeding? ...... 70
5.10.6.1.2 What is the Evidence Respecting Wind on Lake Banook, in the Context of the MPS? .... 75
5.10.6.2 Traffic ...................................................................... 81 5.10.6.3 Shadows ...................................................................... 85
5.10.7 Population Densification; Opportunity Sites .................................. 87 5.10.7.1 Population Growth in The Regional Centre: “Population
Densification” ................................................................ 88 5.10.7.2 Opportunity Sites .......................................................... 93
5.10.8 Conclusion with Respect to Council’s Refusal to Rezone ........... 101 5.11 Issues 2 and 3: Development Agreement ............................................. 106
5.11.1 Issue 2: Is the Appeal Before the Board of the Re-Zoning Application Only, or of the Re-Zoning Application and the Development Agreement Application? ........................................ 106
5.11.2 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy? ............................ 114 5.11.2.1 Provisions in the RMPS and DMPS Dealing with
Development Agreements ........................................... 114 5.11.2.2 Conclusion on Development Agreement Application .. 119 5.11.2.3 DMPS Policy IP-5 (a) and (b) and the Provisions of the
DLUB .................................................................... 120 5.11.2.3.1 Mr. Dickey’s Bonus Calculations ................. 121 5.11.2.3.2 Can the DLUB be used to interpret the MPS?
.................................................................... 123 6.0 CRITICISMS OF COUNCIL’S PROCESS BY DEVELOPER AND OTHERS ... 127 7.0 CONCLUSION .................................................................................................. 129
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1.0 INTRODUCTION
[1] Monaco Investments Partnership wants to build a 15-storey, 92-unit
residential building, to be called “The Prince Albert,” on the corner of Prince Albert Road
and Glenwood Avenue in Dartmouth.
[2] The area in which the subject property is located includes residential and
commercial uses, all of which are low to medium rise (the maximum having five storeys,
with most being one or two storeys). A large residential area, with houses of one to two
storeys, directly abuts (i.e., touches) the subject property.
[3] If built, Monaco’s tower would be less than 500 feet from the eastern shore
of Lake Banook. For many decades, the Lake has been intensively used for training
and competition in racing kayaks and canoes, at the local, provincial, national and
international levels. Since 2005, a 35-foot height-restriction area has encircled Lake
Banook, within which, in general, no new building may be constructed which is higher
than 35 feet. The subject property abuts the edge of the height-restriction area, but is
outside it.
[4] Monaco applied to Halifax Regional Municipality, asking for rezoning of the
subject property, and for approval of a development agreement. HRM’s Harbour East
Community Council rejected the application, and Monaco appealed to the Nova Scotia
Utility and Review Board.
[5] Monaco asserts that HRM’s refusal to approve the application to rezone
should be reversed, as failing to reasonably carry out the intent of the Municipal
Planning Strategy. Monaco furthers asserts that HRM refused not just the application to
rezone, but also the application for a development agreement.
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[6] In this proceeding, Monaco asks that the Board order HRM to grant the
rezoning, and also order HRM to approve the development agreement.
[7] In reply, HRM, supported by the Intervenors, says that Council’s decision to
refuse the application to rezone did reasonably carry out the intent of the MPS, and
accordingly, ought not to be reversed.
[8] HRM also says that the only appeal properly before the Board is that of the
refusal to rezone, and not of the refusal to approve the development agreement.
2.0 ISSUES
2.1 Issue 1: Has the Appellant shown, on the balance of probabilities, that Harbour East Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy?
For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses Monaco’s appeal with respect to the rezoning applications.
2.2 Issue 2: Is the Appeal Before the Board of the Re-Zoning Application Only, or of the Re-Zoning Application and the Development Agreement Application?
For reasons explained in the decision, the Board has decided to assume, without finding, that it has jurisdiction to hear the appeal of the development agreement application (Issue 3), in addition to the rezoning application (Issue 1).
2.3 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy?
For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses Monaco’s appeal with respect to the development agreement.
[9] The Board notes that its dismissal of Issue 3 is conditional upon the
Board’s assumption, under Issue 2, that it has jurisdiction to determine Issue 3.
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3.0 WITNESSES
3.1 For the Appellant, Monaco
[10] Seven witnesses (six of whom were qualified before the Board to give
opinion evidence) testified on behalf of the Appellant. All six expert witnesses prepared
reports which were filed with the Board; some of the experts filed more than one. The
opinion evidence covered in the reports related to municipal planning, wind, traffic, and
building-generated shadows.
3.1.1 Tony Maskine, M.A.Sc., P.Eng.
[11] Mr. Maskine has had a long career in property development in the Halifax
area, and is a principal of Monaco Investments Partnership.
3.1.2 Mitch Dickey, Planner, HRM
[12] Mr. Dickey was accepted as qualified to give opinion evidence in relation to
planning matters. Mr. Dickey is an employee of HRM’s planning staff, and HRM’s
principal planner in processing the Monaco applications. He was, however, called as a
witness by Monaco in this proceeding, and gave evidence which was critical of Harbour
East Community Council’s decision to refuse. As the Board will discuss later, his
testimony at the Board hearing differed in at least one significant way from the opinions
he had expressed previously (both in writing and orally) when advising Council.
3.1.3 Hanqing Wu, Ph.D., P.Eng.
[13] Dr. Wu was qualified as a wind engineer capable of giving evidence on the
pedestrian wind conditions on and around Monaco’s project, and the potential for the
proposed building to affect the existing wind conditions over the kayak and canoe
course on Lake Banook. He is a principal of Rowan Williams Davies & Irwin Inc.
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(RWDI), a firm of consulting engineers and scientists, in Guelph, Ontario, and has
testified previously before the Board. Besides his work on a wind report for the Monaco
project, he had in previous years worked on other wind documentation relevant to other
proposed projects near Lake Banook; none of these were built.
3.1.4 Robert T. LeBlanc, APALA, CSLA, ASLA, MCIP, APA, LPP, LEED AP
[14] Mr. LeBlanc was qualified as a landscape architect capable of giving
evidence on the generation and impact of shadows produced by the proposed Prince
Albert Development. He is President of Ekistics Planning & Design.
3.1.5 Kenneth R. O’Brien, P.Eng, M. Eng.
[15] Mr. O'Brien was qualified as a traffic engineer capable of giving evidence of
the traffic impact of the Prince Albert Development. He is Senior Traffic Engineer with
Genivar Consultants Limited Partnership, a consulting firm, and has worked with various
other consulting firms since retiring from the Nova Scotia Department of Transportation
and Infrastructure Renewal. He has given expert evidence previously before the Board
and the Nova Scotia Supreme Court. Besides his report documentation, another report
from Genivar relating to traffic was also filed in evidence. Its author was Greg O’Brien;
the latter Mr. O’Brien was not called as a witness.
3.1.6 John Heseltine, LPP, MCIP
3.1.7 Margot Young, CSLA, MCIP
[16] Mr. Heseltine and Ms. Young co-authored two reports which were filed with
the Board at different times. They testified together, as a panel. In this decision, the
Board will sometimes refer to them, and their evidence, jointly, as “Mr. Heseltine and
Ms. Young.”
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[17] Ms. Young was qualified as a land use planner capable of giving evidence
on the subject of the intent of the Municipal Planning Strategy and the extent to which
the proposed Prince Albert Development and Council's decision comply with the intent
of the Municipal Planning Strategy. She is a senior planner with EDM Environmental
Design Management Limited, and has previously given expert evidence before the
Board.
[18] Mr. Heseltine was qualified as a land use planner capable of giving
evidence on the subject of the intent of the Municipal Planning Strategy and the extent
to which the proposed Prince Albert Development and Council’s decision comply with
the intent of the Municipal Planning Strategy. He is a senior planner with STANTEC
Consulting Limited and has given expert evidence previously at proceedings before the
Board.
[19] While he testified against HRM’s position in this proceeding, he is part of a
group with whom HRM has contracted to study trends in population growth; his work on
that contract was reflected, to a significant degree, in the reports which he and Ms.
Young prepared for the Board, and in his oral testimony.
[20] Among other things, Mr. Heseltine and Ms. Young took the view that
Council’s decision to reject the Monaco proposal was contrary to the intent of the MPS.
This opinion was the opposite of that of Mr. Lloyd, who gave evidence on behalf of the
Respondent, HRM, and the Intervenors.
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3.2 For the Respondent, HRM, and Intervenors
[21] One witness testified on behalf of the Respondent, HRM, and also on
behalf of the Intervenors. He was qualified before the Board as an expert witness in
planning:
3.2.1 Maurice E. Lloyd, P.Eng., FCIP, LPP
[22] Mr. Lloyd was qualified as an expert in land use planning, capable of giving
expert opinion evidence on land use planning matters, including the intent of the
Regional Municipal Planning Strategy (RMPS), the Dartmouth Municipal Planning
Strategy (DMPS) and Land Use By-Law (LUB) and the extent to which Council's
decision with respect to the proposed Prince Albert Development reasonably carries out
the intent of the Municipal Planning Strategy.
[23] Mr. Lloyd is qualified as a professional engineer and as a planner (he is a
life member of the Association of Professional Engineers of Nova Scotia and the
Canadian Institute of Planners). He has testified previously in planning matters. While
the Board inferred that Mr. Lloyd is largely retired, he has remained active in planning
professional conferences.
[24] He volunteered his services to the Intervenors, and to HRM in this
proceeding. He has a personal connection with the dispute at the centre of this
proceeding: he has lived for many years on Cranston Avenue, within the neighbourhood
(as Mr. Lloyd, but not the Appellant Monaco, would define it) of the proposed
development.
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[25] As the Board has already noted above, it was Mr. Lloyd’s opinion that
Council’s decision to reject the Monaco proposal was one which reasonably carried out
the intent of the MPS.
[26] Further, it was his opinion that if Council had approved the Monaco
proposal, such a decision would have failed to reasonably carry out the intent of the
MPS.
[27] These opinions were contrary to those expressed in the report of Mr.
Heseltine and Ms. Young, and contrary to the opinions expressed by Mr. Dickey in his
testimony at the Board.
4.0 FACTS
[28] The property which is the subject of this appeal is located on Prince Albert
Road and Glenwood Avenue and consists of two separate lots.
[29] The first lot, 307 Prince Albert Road, has been used by Walker’s Funeral
Home for several decades. While the funeral home building and its associated parking
lot remain, the funeral home has either ceased operating, or is operating infrequently.
[30] The second lot is 5 Glenwood Avenue, which has for many years contained
a two-unit residential home. It is the developer’s intent to demolish both buildings in
order to make room for the proposed project.
[31] The Prince Albert Road lot is 18,807 square feet in size, while the
Glenwood Avenue lot is 6,900 square feet in size, for a total of 25,707 square feet.
[32] As part of its application to HRM, Monaco asked that 307 Prince Albert
Road be rezoned from C-2 (General Business) to R-4 (Multiple-family Residential one –
High Density); it asked that 5 Glenwood Avenue be rezoned from R-2 (Two-family
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Residential) to R-4. 5 Glenwood is within an R-2 (two-family residential) Zone which
extends up Glenwood Avenue. Glenwood Avenue is a long street, which, except for the
funeral home and Robin’s Donuts on either side, at its base, is composed of single
family or duplex houses, having one or two storeys. Mr. Dickey’s report to Council
(while it supported Monaco’s proposal) refers to Glenwood as having a “suburban-style
streetscape,” with “substantial setbacks.”
[33] If built, Monaco’s tower would probably be set up as a condominium, but it
could also be a rental property.
[34] The proposed 15-storey tower (14 storeys plus a penthouse) would rise
from what is presently the C-2 lot, at 307 Prince Albert Road. The C-2 lot and the
abutting R-2 lot (5 Glenwood Avenue) would, together, contain three levels of
underground parking.
[35] In addition to asking that the two properties be rezoned, Monaco asked that
HRM approve a development agreement for the project. The reason is that, since 1991,
no new residential building with three units or more has been permitted in Dartmouth
unless Council approves a development agreement for the particular project.
[36] Up until 1991, high-rise development could occur in Dartmouth as of right,
in the R-3 and R-4 Zones. The approval and construction of several tall apartment
buildings in Dartmouth led to significant controversy. Included among these buildings
were ones constructed in an area running from the west side of Lake Banook (i.e., on
the opposite side of the lake from the subject property) down toward the Harbour.
[37] In 1991, Dartmouth City Council responded to the controversy by
amending the DMPS to eliminate as of right development in the R-3 and R-4 Zones.
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Central to this decision was the addition of DMPS Policy IP-5 which in effect requires
that multiple-family residential dwellings containing three or more units (hereinafter,
“apartment buildings”) can only be constructed through the use of a development
agreement. DMPS Policy IP-5 is discussed at length in this decision, particularly in the
part headed “Development Agreement.” From 1991 onward, then, all apartment
buildings in Dartmouth have required a development agreement.
[38] However, Council chose to retain the R-3 and R-3 Zoning By-Laws. Given
that, since 1991, all new apartment building development has been by way of
development agreement, rather than as of right, the continued presence of the R-3 and
R-4 zoning provisions in the Land-Use By-Law can fairly be described, in the Board’s
view, as surprising. Certainly, the significance of their continued presence was a matter
of dispute (see the “Development Agreement” section below) amongst the experts
testifying before the Board and Counsel.
[39] Three of the buildings approved prior to the 1991 amendment (30
Brookdale Crescent, 26 Brookdale Crescent, and 28 Brookdale Crescent) are clustered
in a wooded area near the northwest shore of Lake Banook. The tallest is 10 storeys
high, and the other two are seven storeys high.
[40] Two others – 1 Oak Street (15 storeys) and 55 Crichton Avenue (13
storeys) – are located a few hundred feet to the west of Sullivan’s Pond. Sullivan’s
Pond lies between the extreme southwestern tip of Lake Banook (a few hundred feet to
the north of Sullivan’s Pond) and Dartmouth Cove, an inlet of Halifax Harbour. The
Board notes that the second planning report (May 2, 2012) of Mr. Heseltine and Ms.
Young refers to 1 Oak Street and 55 Crichton Avenue as being:
…in the neighbourhood adjacent to Lake Banook.
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This was corrected in the course of the hearing, and the words “Sullivan’s Pond”
substituted for “Lake Banook.”
[41] At this point, a general description of the Prince Albert Road area (both the
road itself and associated side streets) will provide additional context.
[42] Lake Banook is – very roughly – rectangular in shape, with the long axis of
the rectangle running, again very roughly, from the southwest to the northeast. Prince
Albert Road runs along the eastern shore of Lake Banook. If one views the area from
the perspective of Prince Albert Road, and begins at the southwestern end of the Lake,
one sees on the left, on both sides of the Lake, various boat clubs. These clubs are
used for recreation generally and more specifically to train competitors in racing kayaks
and canoes.
[43] Between the left side (or western side) of Prince Albert Road and the Lake
is a narrow band of parkland, which runs all the way along the eastern shore of Lake
Banook until just a few hundred feet short of the subject property. To the eastern side
of Prince Albert Road (or to the right, if one is moving north-easterly along Prince Albert)
one encounters at the southwestern end of Lake Banook older houses, followed by
some parkland, which gives way to a cluster of older houses.
[44] Moving north past the houses, one encounters a low-rise condominium, of
three to four storeys. Known as Banook Shores, this condominium development faces
Lake Banook, across Prince Albert Road and the intervening narrow band of parkland.
[45] A vacant lot, where a gasoline service station formerly stood, is north of the
condominiums. The north side of the vacant lot abuts the Robin’s Donuts property on
the corner of Glenwood Avenue and Prince Albert Road. While the Robin’s Donuts
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building is just across the street from the subject property, it is inside (i.e., subject to)
the 35-foot height-restriction area, but the subject property is not.
[46] Directly across Prince Albert Road from the subject property (and inside
the 35-foot height-restriction area) lies a small area zoned C-2, immediately behind
which is a thumb-shaped area of land projecting into Lake Banook, which is occupied
mostly by single-family and duplex housing, many with water frontage. There is also a
significant amount of woodland. Immediately to the north of this residential area lies a
municipal park with extensive shoreline on Lake Banook, known as Graham’s Grove.
[47] To the northeast of the subject property (or to the right if one is standing at
the front of the property facing Prince Albert Road), lies Yuille Auto Works, and two
buildings (variously referred to in the evidence with the term motel, hotel, lodge, or inn;
the Board will use the term “motel”). One is two storey and the other, four storey. The
motels lie on either side of Lawrence Street, a very narrow roadway running 90 degrees
from Prince Albert Road, and leading to three 42-unit apartment buildings of four
storeys each.
[48] Around this point, Prince Albert Road divides into two branches. The left-
hand branch, carrying the bulk of the traffic which had been on Prince Albert Road,
continues to the north, passing Graham’s Grove on the left (or west), and the large
Superstore on the right (or east). It then leads to ramps leading onto the
Circumferential Highway, and to the Waverley Road, along the shore of Lake MicMac.
[49] The right-hand branch of Prince Albert Road (which continues to be called
Prince Albert Road) continues to the northeast, and is less heavily travelled than the
left-hand branch. It has on the northwest (or left side) the Superstore. On the
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northeast, or right side, just after the two-storey Express Lodge at 317 Prince Albert
Road, is the NAPA store. Thereafter is the proposed entrance to the Twin Lakes project
site (discussed later in this decision), and a succession of two-storey duplexes.
[50] The section of Prince Albert Road which the Board has just described
(running from the beginning of Sullivan’s Pond to the duplexes on the east side of
Prince Albert Road which face the Superstore and highway-access ramps for the
Circumferential Highway) is perhaps a mile in length, or a little more. Throughout its
length, the land upon which Prince Albert Road itself runs, and the land to the left of the
road, is flat. While the land immediately to the right of the road is flat, it rises as one
moves away from the eastern edge of Prince Albert Road.
[51] The rise begins within a few hundred feet (and in some instances,
especially at the southwestern end, within just a few feet) of the edge of Prince Albert
Road. The slope eventually rises quite steeply to meet the crest of a long ridge which
runs, very roughly, parallel to Prince Albert Road, and extends down to the eastern
shore of Sullivan’s Pond and Lake Banook.
[52] These lands are occupied almost entirely (except for occasional uses such
as churches, schools, convenience stores, etc.) by residential buildings. Many of these
are single-family, but some are duplexes, and there are also some low-rise apartment
buildings.
[53] These residential buildings cover the relatively flat highlands to the east of
the ridge, and where the topography (including buildings) is not too steep, spill down the
slopes from the ridge top, and either front directly on Prince Albert Road (which is
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predominantly residential throughout the length the Board has just described) or abut
commercial properties which themselves are on Prince Albert Road.
[54] Thus, to give but one example, single-family or duplex housing on
Glenwood Avenue abuts the subject property – indeed, the subject property, comprised
as it is of two lots, one being zoned C-2 and the other being R-2, itself contains land
which was (at least until its purchase by Monaco) used for low-density residential
purposes. In essence, Glenwood, which is one of the roads rising up the slope to the
ridge from Prince Albert, is a residential street, dominated mostly by single-family, and
some duplex houses.
[55] The Board will now return now to the matter of the 1991 controversy over
the type of apartment buildings appropriate in Dartmouth, and, in particular, in the
Banook area. Controversy about this subject – particularly with respect to height – did
not end in 1991, with the adoption of the requirement that all new residential buildings
with three units or more would be possible only through development agreements.
[56] In 2004, there was some discussion in relation to a possible
redevelopment, in the form of a condominium project proposed by United Gulf
Developments Limited, of the former YMCA site at the northwest corner of Lake
Banook, next to the Circumferential Highway. The proposed development was to
consist of two 12-storey towers, with ground-level townhouses, to replace the
demolished two-storey YMCA building which had existed on the site.
[57] RWDI (of which Dr. Wu, who testified in the present proceeding, is a
principal) was engaged to look into, and prepared a report upon, the matter of possible
effects upon winds over the canoe course. There was a further wind study in November
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of 2009. By agreement between the parties, the 2004 and 2009 reports were filed by
Mr. Weatherhead on behalf of the Intervenors, rather than, as might otherwise be
expected, by Counsel for the Appellant. While the reports were referred to, their
contents were not, in the Board’s judgment, subjected to significant exploration in the
course of the proceeding.
[58] The evidence before the Board with respect to the YMCA project is limited,
but the Board concludes from the evidence which is before it that the project did not go
forward and achieve approval from HRM.
[59] Also in 2004, the same year as the YMCA discussions, controversy arose
over the proposed construction of a seven-storey building on the eastern shore of Lake
Banook, on what is referred to as the “Paddlers Cove” site.
[60] The “Paddlers Cove” site is less than 100 yards west of the subject
property, but on the Lake Banook side of Prince Albert Road. It is currently occupied by
a two-storey building, which has been variously used for business offices and a
restaurant. At its name perhaps implies, the Paddlers Cove site has extensive shore
frontage. The site is roughly rectangular, within one long side, and one short side,
fronting directly on the Lake.
[61] Staff of HRM’s planning department recommended that Council approve a
development agreement for the seven-storey building on the Paddlers Cove site, but
Council rejected the proposal.
[62] Mr. Dickey, the HRM planner who was the planner of record for the
Monaco proposal, and who testified on Monaco’s behalf in the present proceeding, was
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initially the planner of record for the Paddlers Cove project, for the first year and a half in
which it was being considered by HRM. He was then re-assigned to other work.
[63] According to the evidence and submissions before the Board, the proposal
for development of Paddlers Cove also included (just as the YMCA proposal had) a
wind impact report, prepared by Dr. Wu’s firm, RWDI.
[64] As the Board has already noted, Council ultimately rejected the
recommendation of its planners, and refused the proposal.
[65] The evidence before the Board on this subject is incomplete, but, in his
report to Council on the Monaco proposal, Mr. Dickey attributed Council’s refusal of the
Paddlers Cove proposal to “compatibility concerns with nearby housing.” The Paddlers
Cove site is bounded on its eastern side by Lakeview Point Road, which contains low-
rise single-family and duplex residential buildings. The Board infers that Council’s
refusal was also related at least in part to the building’s seven-storey height, in proximity
to the lake. Among other things, the Board notes that, the year after Council rejected
the Paddlers Cove project, Council adopted the 35-foot height-restriction around Lake
Banook, which includes the Paddlers Cove site.
[66] If built, Monaco’s project for the subject property (only about 300 feet away,
at its nearest point, from the Paddlers Cove site) would be eight storeys higher than the
seven-storey building rejected by Council in 2004 for Paddlers Cove.
[67] In 2005, as the Board has just noted, HRM adopted a 35-foot height-
restriction area around Lake Banook (referred to in the planning documents as the
“Lake Banook Canoe Course Area”).
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[68] The 35-foot height-restriction area was referred to by Mr. Dickey, at least at
one point, as extending about 500 feet from the edge of the Lake, but his evidence
makes it clear that 500 feet is merely an approximation. The height-restriction area is
not regular in shape, its boundary being somewhat closer to the lake in some instances,
and farther away in others.
[69] As Mr. Dickey himself acknowledged, the subject property itself, at its
closest point, is less than 500 feet from the Lake. Nevertheless, it is outside, but abuts
the edge of, the height-restriction area. The irregular edge of the height-restriction area
can be seen as in effect zigzagging around the subject property. For example, as
noted, the subject property is on a corner of Prince Albert Road and Glenwood Avenue.
It is outside the height-restriction area, but properties right across the street, on both
Prince Albert and Glenwood, are inside the height-restriction area. Thus, the Robin’s
Donuts property, which is also on the corner of Prince Albert and Glenwood Avenue,
just as the subject property is, is inside the height-restriction area.
[70] As just noted, in 2004 HRM Council rejected the seven-storey Paddlers
Cove project which HRM’s planners had recommended. Two years later, in July of
2006, just the opposite occurred: Harbour East Community Council approved a 12-
storey apartment tower (known as “Twin Lakes”) which its planners said should be
rejected.
[71] The Twin Lakes site is significantly larger than the subject property. The
site is on Prince Albert Road, but, very roughly, 600 feet, or perhaps a little more, to the
northeast of Monaco’s property. The Twin Lakes site is farther from Lake Banook than
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is Monaco’s – the distance from Twin Lakes to Paddlers Cove, for example, would be
(again, very roughly) about 1,000 feet.
[72] The limited evidence before the Board respecting the site points to it
apparently being a form of what is often referred to as a “flag lot”: the entry point to the
project, a lane running at 90 degrees from Prince Albert Road, runs – again, according
to the evidence before the Board – along the side of the existing NAPA property, to the
rear of which the actual apartment tower is to be built. The building site would appear to
be more than 200 feet – again, very roughly – back from Prince Albert Road.
[73] The site extends in an easterly direction behind the NAPA property,
gradually rising into a moderately steep, and heavily wooded, area which lies below the
lands of the Alderney Elementary School, which are behind the edge of the ridge.
[74] While Twin Lakes has a 12-storey design, and Monaco has a 15-storey
design, it appears from the evidence that the height above sea level of the top of both
towers would be about the same. This is because Twin Lakes is on a rising slope,
which is higher above sea level than the Monaco site. The Board infers that, while the
height above sea level of the tops of both buildings would be the same, the relative
height of the Monaco building above the nearby lands surrounding it would be greater
than for Twin Lakes.
[75] If the Twin Lakes project is eventually built, the nearest part of the building
would be, very roughly, a little over 1,200 feet from Lake Banook, as opposed to less
than 500 feet for Monaco.
[76] The Twin Lakes approval overlapped the adoption by HRM of the Regional
Municipal Planning Strategy, or RMPS: Halifax Regional Council approved the RMPS
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on June 27, 2006; Harbour East Community Council approved the Twin Lakes project
on July 6, 2006. The RMPS did not, however, actually come into effect, until August 26,
2006, after review by the Provincial Government.
[77] As Mr. Heseltine and Ms. Young note in one of their two reports filed as
exhibits with the Board, some councillors, in voting in favour of Twin Lakes, made
specific reference to being conscious of the new RMPS. The RMPS provisions include
(as the Board notes below under “Analysis and Findings”) a target of increased
population growth in particular areas, including Dartmouth inside the Circumferential
Highway.
[78] Among those voting in favour of Twin Lakes was Councillor Gloria
McCluskey, who later voted against Monaco’s proposal. Councillor McCluskey, when
giving evidence at the Board hearing for the present proceeding compared the Monaco
proposal with Twin Lakes. She said that the latter’s site is located:
…further up Prince Albert Road, located some distance from the Road, located in under a hill; and if you were to visit that site you would see the difference.
[79] She also said that (unlike the present appeal, in which there was significant
opposition from residents living in the area), most people in the neighbourhood of Twin
Lakes had signed a petition indicating that they did not feel they would be affected by
the development. The Board notes, as well, that according to Mr. Dickey, no wind
assessment was required for the Twin Lakes project.
[80] According to the limited evidence before the Board, Twin Lakes
Development Limited, which obtained the development agreement for the Twin Lakes
site, is headed by Robert Yuille, who is also the owner of NAPA. The Twin Lakes
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project has not commenced; according to evidence before the Board, Mr. Yuille wishes
to sell the property and its associated development agreement.
[81] Around three years after HRM’s approval of the Twin Lakes project in
2007, communications were commencing between Monaco and HRM with respect to
the possible development of the subject property.
[82] It appears that, at least at one point, Monaco may also have owned 9
Glenwood Avenue. 9 Glenwood Avenue is separated from 5 Glenwood by 7 Glenwood,
which remains privately owned and occupied, i.e., not owned by Monaco. Accordingly,
Monaco restricted its building site to just two lots, being 307 Prince Albert Road and 5
Glenwood Avenue.
[83] According to Monaco, the distance from the edge of the “podium” (i.e., the
edge of the recessed underground parking garage concrete structure) to the boundary
of 7 Glenwood Avenue (which, again, remains in private ownership) would be 7.86 feet.
[84] By late September 2010, Alderney Surveys Limited had been engaged by
Monaco, and had prepared topographic plans of the site. Architectural planning sheets,
prepared by Monaco itself, followed in November of 2010.
[85] Monaco also engaged Ken O’Brien of Genivar Consultants Limited
Partnership to prepare a traffic report, entitled “traffic impact statement,” which he
submitted to Hugh Morrison, HRM’s Development Engineer, on December 3, 2010. It
foresaw no traffic problems for the subject project.
[86] In March of 2011, Greg O’Brien, of Genivar, wrote to Hugh Morrison, the
Development Engineer for HRM, concerning proposed driveway locations, and making
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reference to HRM By-Law S-300, which sets limits for the proximity of driveways to such
things as certain kinds of street intersections.
[87] On March 23, 2011, Mr. Maskine sent a letter to Mr. Dickey enclosing,
among other things, Monaco’s application for zoning amendment and a development
agreement.
[88] Mr. Maskine’s letter describes the project overall, making reference to the
overall high quality of the building itself. Mr. Dickey was (and remains) enthusiastic,
saying that:
…staff’s feeling was that this is a very attractive building and it would certainly seem to be one of the best that’s ever been proposed in Dartmouth.
[89] The Board notes that – somewhat surprisingly in a dispute of this type –
even some opponents of the project on its present site acknowledge that they see the
building itself as attractive. For example, Mr. Weatherhead (one of the Intervenors)
described it as “well designed.”
[90] The proposed building would have large balconies, high-quality finishes
inside and out, provision for a library, meeting rooms and a huge lobby. The
specifications also called for natural gas heating of the common elements, and heat
pumps for both heating and cooling in individual suites. Mr. Maskine was even said to
be considering having concierge service present at least during the day.
[91] Mr. Maskine suggested that most of the people who would become
residents in Monaco’s project would be seniors, semi-retirees, and urban professionals.
[92] Mr. Maskine also maintained that the proposal would involve a less
intensive use of the lands than could otherwise be permitted. This idea became one of
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Mr. Dickey’s principal themes, and was used by him in his presentations to Council, as
well as the subsequent evidence which he gave to the Board.
[93] On May 4, 2011, HRM held a public information meeting concerning
Monaco’s proposal. Those in attendance included Councillors Gloria McCluskey and
Bill Karsten. Four representatives of HRM Planning Staff were in attendance, including
Mr. Dickey. Mr. Maskine was in attendance on behalf of Monaco Investments. Eighty-
two members of the public attended as well. The meeting was in Alderney Elementary
School at 2 Penhorn Drive. As the Board has previously noted, the School is located
immediately behind, and above, the wooded and sloped site which Council had
previously approved for the Twin Lakes project.
[94] At that meeting, Mr. Dickey outlined the process involved in Monaco’s
application, and described what kinds of development would be possible as of right.
The lengthy minutes detail expressions of opposition, and of support, on the part of the
public with respect to the proposed development. Council Karsten told those present
that the public’s “concerns and comments” are “absolutely” taken into account by
Council in making its decision.
[95] In the intervening months between the information meeting in May of 2011
and Council’s rejection of the proposal in January of 2012, Mr. Dickey engaged in many
communications with residents, staff and Councillors of HRM, and, most especially,
representatives of Monaco.
[96] Not just in his evidence before the Board, but in other communications
while the Monaco project was being developed and reviewed within HRM, Mr. Dickey
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frequently noted that a hotel would not be subject to a development agreement
requirement, and could be built to an unlimited height on the subject property.
[97] On May 12, 2011, Mr. Maskine told Mr. Dickey that Monaco was looking at
the possibility of a hotel “as a backup” to its primary focus on the proposed apartment
building. He also referred to a further option, being a five-storey self-storage facility,
which does not appear to have been pursued in any significant way.
[98] Mr. Maskine told Mr. Dickey that Monaco had initiated discussions with
“hotel partners,” but, when Mr. Dickey inquired about who the “possible hotel brands”
were, it does not appear that Mr. Maskine replied.
[99] Sometime in the summer of 2011, Monaco did complete an application
form for a development permit for a hotel, and, in early September, Genivar produced a
concept plan (with associated landscaping, main floor, typical floor, and penthouse floor
plans). The plan shows the height of the building as 16 storeys (15 storeys plus a
penthouse, or one storey higher than the project which is the subject of this
proceeding). Unlike the hotel application, the detailed plans produced for Monaco’s
proposed 15-storey apartment building, were produced by Monaco itself.
[100] HRM engaged in discussions with Monaco about Monaco’s possible
funding for public art (referred to below), and various options in relation to traffic were
also reviewed (including the location of driveways on Glenwood, and the possibility of
traffic lights at Prince Albert and Glenwood).
[101] On June 15, 2011, two of Monaco’s experts (Dr. Wu and Mr. LeBlanc)
presented reports to Monaco which they subsequently amended after review by their
client, after which the amended reports were filed in evidence with the Board.
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[102] On June 15, 2011, Dr. Wu submitted a report to Mr. Maskine entitled “Wind
Assessment.” Nothing in the report refers to it as a draft. However, on June 17th, Mr.
Maskine sent Mr. Dickey a copy of Dr. Wu’s report, referring to it as a “draft.”
[103] On June 22nd, Dr. Wu resubmitted his report. It is again entitled “Wind
Assessment” and makes no reference to the version of June 15th. It does contain an
additional sentence.
[104] The June 15th report had included the statement:
Based on the distance between the proposed building and the canoe course, as well as our previous wind tunnel studies for other projects in the area, it is our opinion that the potential effects on the wind conditions over the canoe course on Lake Banook are negligible.
In the June 22, 2011, version of his report, Dr. Wu had added the following sentence to
the above-quoted paragraph:
As such, there are no negative consequences resulting from the building that could affect the lake and no further investigation is warranted.
[105] The Board concluded from Dr. Wu’s evidence that he had added the
additional sentence after consulting with his clients. Under cross examination before
the Board, Dr. Wu said he added the additional sentence to provide additional clarity to
the meaning of the word “negligible.” The subject of wind will be discussed further
under “Analysis and Findings.”
[106] On June 15th (the same day Dr. Wu submitted to Mr. Maskine the first
version of his report) Mr. LeBlanc, of Ekistics Planning & Design, gave Mr. Maskine a
document entitled “Shade Study for Prince Albert Road Development.” The June 15th
report bears the signature of Mr. LeBlanc; as with Dr. Wu’s June 15th report, it makes no
reference to its being a draft.
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[107] On June 17, 2011, just as he had with Dr. Wu’s report, Mr. Maskine sent
Mr. Dickey a copy of Mr. LeBlanc’s shade report, once again referring to it as a “draft.”
[108] On June 20, 2011, Mr. LeBlanc submitted his shade study to Mr. Maskine
again. As with Dr. Wu’s revised report, Mr. LeBlanc’s June 20th report makes no
reference to it being a revision of the earlier June 15th version.
[109] Dr. Wu had added an extra sentence to his report after its review by Mr.
Maskine and Mr. Dickey; Mr. LeBlanc added an extra section. Entitled “Shade
Potential,” this added section also became the subject of cross examination of him by
Counsel for HRM in the course of the Board hearing. The Board will return to this point
under “Analysis and Findings.”
[110] The positions taken by representatives of the Appellant with respect to the
most advantageous rezoning strategies for the subject property did not at times appear
to be entirely consistent. As previously noted, Monaco originally applied for rezoning of
the Prince Albert Road lot (the funeral home property) from C-2 to R-4. In the present
proceeding before the Board, Monaco maintained that position.
[111] On July 25, 2011, however, Nick Price of Genivar, writing on behalf of
Monaco, told Mr. Dickey that he wanted the zoning for the funeral home part of the site
changed from C-2 to G-C (General Commercial). On October 6, 2011, Mr. Dickey
recommended that Monaco stay with its original idea of requesting a rezoning to R-4,
rather than seeking G-C Zoning. In their March 29, 2012, report, Mr. Heseltine and Ms.
Young made the observation that rezoning the C-2 property “was not necessary.” The
Board notes these variations merely for clarification; it does not see them as relevant to
the outcome of this proceeding.
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[112] During the summer, there was increasing activity by individual residents, as
well as by the Banook Area Residents’ Association, in opposition to the proposed
development. Concerns related to a range of items, including proximity to Lake
Banook, effect of increased traffic, the proximity to the existing residences extending up
Glenwood and elsewhere, etc.
[113] On September 30, 2011, Ken O’Brien of Genivar produced traffic
generation projections which showed his opinion of the different levels of traffic that
might be expected from different kinds of uses on the subject property.
[114] On the same day, HRM issued a development permit for the construction
of the 16-storey hotel.
[115] A few days later, on October 5th, Mr. Dickey wrote to Mr. Maskine asking
for some more information that he could use for discussions within HRM, about Monaco
having a hotel as a “backup plan.” He suggested that if Mr. Maskine:
…were able to provide particulars, and if the project appeared feasible, that would be an important piece of information for internal discussions. Specifically, might a mid/high-rise hotel of similar scale with internal restaurant be feasible in today’s market.
In response, Mr. Maskine provided some general observations about the kind of hotel
which might be feasible for the subject property. His description included a reference to
a two-storey podium, with a 14 to 16-storey tower on top of it.
[116] When questions were asked as to the process Council would use in
dealing with Monaco’s application for its apartment tower, Mr. Dickey explained (on
October 5, 2011, in an E-mail to a person whose name was redacted) the two separate
steps which he saw as inherent in the process. The first related to the application to
rezone, and the second to the development agreement:
The need for council to make 2 separate decisions is procedural and necessitated by provincial planning legislation. Although a council can consider different types of
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applications concurrently it cannot approve a development agreement until the required zone is in place and the appeal period for the rezoning has expired or any appeals have been dismissed. This standard process has been used for 15 years.
The two-step process described by Mr. Dickey will be reviewed further by the Board in
its discussion of Issue 2, below.
[117] A surprising proportion of communications between HRM and Mr. Maskine
related to HRM staff seeking monetary support from Monaco for “public art” (an already-
existing example being a stylized metal canoe near Lake Banook) and public parklands.
In 2008, HRM staff had proposed a public art policy which, in effect, imposed a fee of
1% of total construction costs on private developments in excess of 25,000 square feet.
This would be used to pay for public art that would be installed on private lands and
would remain the responsibility of the owner.
[118] By May of 2011, Mr. Dickey had informed Mr. Maskine of HRM’s
requirement that Monaco provide a “community benefit” as part of the proposal. Mr.
Maskine agreed to $50,000 in May, 2011, but Mr. Dickey informed staff in the “culture
and heritage section” of HRM’s bureaucracy that he thought Mr. Maskine would be
“willing to go higher”; in another communication he expressed the hope that staff would
be able to “extract a greater amount than $50,000.”
[119] A few days later, on October 3rd, Mr. Dickey told Mr. Price of Genivar that
the “minimum” that HRM would expect Monaco to pay would be $100,000. It seems the
payment from Monaco could go to public art, or park improvements, or both. Mr. Dickey
suggested the development agreement could assign a split between the two of, for
example, $60,000 for public art and $40,000 for park improvements, which might be tied
in with the nearby Trans Canada Trail.
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[120] On October 5, 2011, another HRM staff member reported to Mr. Dickey
that:
Tony Maskine is willing to consider completion of our TransCanada Trail and area of Grahams Grove…this is very good news…This will also reduce pressure on our HRM capital budget designated for trails construction.
[121] By October 11th, Mr. Dickey’s discussions with Monaco had led to its
agreeing to contribute $150,000, once 80% of the condominium units had been sold.
This commitment was communicated to Mr. Dickey by Mr. Price, Genivar’s Senior
Planner.
[122] Mr. Dickey was pleased, saying that the only outstanding issue for him in
the development agreement was to:
…find a way to adequately capture Tony’s [Mr. Maskine’s] generous commitment to community amenities.
[123] The same autumn that the Monaco proposal for Prince Albert Road was
being discussed within HRM, other applications for high-rise structures elsewhere in
Dartmouth were being considered – one for the Mic Mac Mall area, and another for the
Sobeys Group’s proposed redevelopment of the former Penhorn Shopping Mall.
[124] On November 3, 2011, Mr. Dickey forwarded to Mr. Price, of Genivar, and
Mr. Maskine, a draft development agreement for their review and comment. After
noting that the “vast majority” of the clauses were standard ones, he referred to other
topics, one of which was a park improvement contribution of $133,400.
[125] On December 15, 2011, Mr. Dickey prepared a report, to be submitted to
Halifax East Community Council. After approval by Austin French, the Manager of
Planning Services, it was submitted to Council by Phil Townsend, Director of Planning
and Infrastructure. The report makes reference to a number of different concepts,
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including, in relation to the re-zoning application: bulk (massing); scale (height); traffic;
potential for wind impact. In relation to the development agreement, the report refers to
site design; architecture; height; bulk (massing); potential wind impact; shadows;
density; landscaping and buffering; and traffic.
[126] Mr. Dickey’s report recommended that Harbour East Community Council:
…approve the proposed rezoning… [and]… Upon the expiry of the appeal period for the rezoning, approve a development agreement for a 15-storey residential building…
In his evidence to the Board, Mr. Lloyd characterized the Dickey report as
“aggressively” supporting Monaco’s applications; Mr. Heseltine and Ms. Young used the
word “strongly” instead of aggressively.
[127] However, Mr. Dickey’s report to Council (which was used by Council during
its January 17, 2012, meeting) also said that one of the options Council had in dealing
with Monaco’s application was that:
Council may choose to refuse the rezoning. In the view of the Board, a reasonable inference (and perhaps the only reasonable
inference) from this statement is that, if Council decided to refuse Monaco’s application,
its decision would reasonably carry out the intent of the MPS (as is discussed at length
in this decision in both Issue 1 and Issue 3, this question of consistency with the MPS is
the fundamental test on appeals of the type found in the present proceeding).
[128] He expressed the same idea (that Council could refuse the rezoning) in the
public information meeting of May 4, 2011, which was attended by two councillors. He
expressed it a third time in making a PowerPoint presentation to Council on January
17th.
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[129] When, however, Mr. Dickey testified before the Board in the present
proceeding, he contradicted the opinion he had expressed on the three previous
occasions. When asked by Counsel for Monaco whether, in his opinion, a refusal by
Council of the Monaco application would have been consistent with the MPS, he
replied:
In this case, no, I don’t think that that can be seen to be the case. [130] No supplementary report was filed with the Board by him, or on his behalf,
stating that he had changed his earlier opinion, and why. In making this observation,
the Board notes Mr. Dickey’s peculiar status in this proceeding as an employee of HRM
who was called by an opposing party to given evidence against HRM’s position.
[131] In noting the inconsistency between Mr. Dickey’s two positions, the Board
does not wish to imply that it was not open to him to change his evidence if he thought it
appropriate, just as it would be for anyone else. In discussing his new, and
contradictory, opinion, in the course of his testimony in this proceeding, however, the
Board did not see Mr. Dickey as referring to any significant matters of which he had not
previously been aware.
[132] On January 17, 2012, Harbour East Community Council met to consider
whether to give first reading to the proposal. If that was granted, other steps would
occur subsequently, including a public hearing.
[133] The meeting is described both in the minutes of Council, as is common in
evidence in a planning appeal, and – unusually – in an actual transcript of the Council
meeting. The transcript was prepared at Monaco’s request, for the purposes of the
Board hearing. The Board notes, simply as a minor clarification, that the transcript
refers to Council’s meeting as having occurred on January 31, 2012; all other
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documentation in relation to the meeting, however, including Monaco’s notice of appeal,
refers to the meeting as having occurred on January 17th.
[134] Mr. Dickey presented his report to Council, illustrating it with a PowerPoint
presentation. Devoting a slide to the developments possible in a C-2 Zone, he told
Council that, in such a zone an owner could, as of right, put up a building related to:
Commercial uses such as retail, service, office, food/liquor establishments, & automotive-related uses: • No height limit on buildings, • Minimal setback requirements/lot coverage limits, • No architectural guidelines or design controls, • Permit issued for 16 storey hotel. Also allows residential uses such as group homes, townhouses, & nursing homes.
The Board notes in passing that it appears from the various submissions before the
Board that Mr. Dickey’s statement that there is “no height limit on buildings” is correct in
relation to hotels. However, in relation to certain other structures, such as office
buildings, there are in fact certain height restrictions which do apply, but are not
mentioned, in the PowerPoint presentation.
[135] Councillor McCluskey, in commenting during the Council meeting on Mr.
Dickey’s presentation, referred to DMPS Policy IP-1(c), and the question of the Monaco
project’s compatibility and consistency with adjacent uses. Referring to his report, she
told him:
You didn’t mention that anywhere, compatibility.
[136] In replying to Councillor McCluskey, Mr. Dickey did not address the
omission of compatibility from the report, but instead referred her to the “very broad
range of uses and the scale, height and massing of uses” which could occur if
development were to proceed pursuant to the existing C-2 Zoning on the funeral home
property.
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[137] Councillor McCluskey repeated her question to Mr. Dickey. She was
asking, she told him, not what might be built as of right commercially, but about the
compatibility of Monaco’s proposed building with the surrounding area. She said that
she was:
…talking about this building; we’re talking about this one, and I’m saying you didn’t mention compatibility…
[138] This time, Mr. Dickey’s answer acknowledged that compatibility had not
been specifically mentioned in the context of Monaco’s proposed building, but he
asserted that it had been “indirectly captured,” saying that, given the “other things that
could happen” on the subject property, Monaco’s project was “relatively compatible.”
[139] Ms. McCluskey also referred to the 35-foot height-restriction area around
Lake Banook, and commented that it was her understanding that in setting the
boundary of the 35-foot height-restriction area in 2005:
…there was…no real study done to see if that was the right area, if that boundary was right. You know, we just drew that line and that was it.
Mr. Dickey replied, saying, among other things, that Canoe/Kayak Canada had been:
…heavily involved because of development proposals on the United Gulf site on the other side of the Lake, and at the end of the day there seemed to be clear consensus that this line was appropriate.
Ms. McCluskey replied:
But there was nothing determined as to the height of the building. I mean, the one on the Paddlers Cove that was turned down was 8-storeys, and that's what brought about the 35-foot, but there was nothing here to determine whether that same 8-storey would be here, and some people felt that, or it would be 15. We didn't – we never really did a study, did we, Mitch, to show that a 15-storey building would not bring any wind?
Mr. Dickey replied:
No, no, that's true, nor was there a study to, you know, prove that there would be impacts from a 50-foot building, you know, within the 35-foot height limit.
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[140] In the course of the discussion during the January 17th meeting, it was
noted more than once that the business before Council that night was not a public
hearing on the Monaco proposal, which was to occur later; it was suggested that,
according to Council’s rules, debate was not to occur on first reading.
[141] Councillor McCluskey persisted, arguing that if the vote ended in the
motion being turned down then Council must state its reason for refusal. Ultimately, she
did state for the record (and prior to the vote) the reasons that she intended to vote
against first reading (and thus against the further consideration of Monaco’s proposed
development). She said:
…that it is not compatible with the neighbourhood, it is surrounded by single-family homes all along the Lake, the shadow effect that it will have on properties there, the traffic that will be generated and the wind that it could create.
[142] Among other things, she also referred to her uncertainty about the
implications of the 35-foot height limit. She said that when it was set there had been:
…no talk of how high a building could be before it could affect the Lake. Nobody knows. There was no talk of that.
[143] Councillor McCluskey’s stated reasons for voting against the Monaco
project were the subject of repeated comment by Monaco in the Board’s proceedings.
As the Board has previously noted, Counsel for Monaco obtained a transcript of her
remarks and referred to them subsequently in written submissions.
[144] Councillor McCluskey spoke at an evening session held by the Board in
relation to the Monaco appeal. Her remarks to the Board included the following
statement, in which she referred to local opposition to the project, of which she was
aware at the time of the January 17th vote:
I will begin by saying that I voted against the Prince Albert Development proceeding to the next step, the public hearing. My reasoning is that I was satisfied that we
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heard from the public who would be directly affected by a petition of some 300 names, emails, phone calls, and many face-to-face conversations.
Counsel for the Appellant suggested that Councillor McCluskey’s actions on January
17th could be characterized as having taken a “head count” and then voting accordingly.
[145] The Board notes, however, that Ms. McCluskey also made reference to her
compatibility concerns once again, referring to:
…residents who will live with this development, which is certainly not compatible.
[146] At the January 17th Council meeting, after Ms. McCluskey had concluded
her comments to her colleagues on Community Council, the Chair once again stated his
view that Council could only debate:
…whether to give notice of motion. Members may not debate the proposed rezonings or development agreement.
[147] When the vote was finally taken, on a motion to give Monaco’s application
first reading, it was defeated. The defeat of the motion meant, in effect, the defeat of
Monaco’s application.
[148] The Board discusses the details of the motion itself at “Analysis and
Findings” below. The vote was actually a tie vote, with three councillors voting in favour
of the motion (being Deputy Mayor Karsten, and Councillors Fisher and Nicol), and
three councillors voting against (Councillors Barkhouse, McCluskey and Smith). Under
Council’s rules, a tie vote is a “no” vote.
[149] One of the consequences of Council defeating the application at first
reading was that no public hearing, or subsequent Council meeting, occurred.
Accordingly – apart from Councillor McCluskey’s comments, and Mr. Dickey’s
PowerPoint presentation – there had been no detailed presentation, and discussion, of
the proposed project. People other than Councillor McCluskey and Mr. Dickey –
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whether they were members of Council of not – did not have the opportunity to express
support for, or opposition to, the project, or to learn more about the positions of others.
[150] After the motion to give first reading was defeated, and the Chair opened
the floor to hear commentary from the public, there was spirited criticism from some
who saw Council as having behaved unfairly.
[151] Mr. Maskine asked Council to reconsider its refusal to grant first reading.
Heather Miller, who had worked with Mr. Maskine for two years on the project,
expressed her distress about what she characterized as:
…the lack of a democratic process…
[152] Likewise, Tom Campbell asserted that:
…whether or not this is a good development or a bad development, this process here has eliminated the public from having their say at a public meeting…I think Council should reconsider and allow it, the democratic process of a public meeting where anyone who wishes to speak can, for or against, and then Council can make an educated decision…
[153] Others spoke in support of Council’s decision, including one person (Nancy
McInnis-Leek), who ultimately became an intervenor in the present proceeding.
[154] On January 19, 2012, HRM sent a letter to Monaco refusing its application.
HRM gave no reason for the rejection in its letter, although the Halifax Charter requires
that reasons be given for the refusal. HRM’s letter did, however, inform Monaco (as
required by the Halifax Charter) of the right to appeal within 14 days. The detailed
content of HRM’s letter is reviewed in the Board’s discussion of Issue 2 in the “Analysis
and Findings” part.
[155] On February 2, 2012, Mr. Rogers, as Counsel for Monaco, filed a Notice of
Appeal with the Board. The following grounds were stated in the Notice:
The Harbour East Community Council's decision does not reasonably carry out the intent of the municipal planning strategy for the following reasons:
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1. It failed to give adequate or any consideration to the policies contained in the Regional Municipal Planning Strategy, and the Dartmouth Municipal Planning Strategy and to the Dartmouth Land Use By-law; 2. It is based on irrelevant considerations in that it was made for reasons other than those set out in the Regional Municipal Planning Strategy, the Dartmouth Land Use By-law and the Dartmouth Planning Strategy, particularly in light of the fact that no reasons were given; 3. Such further and other grounds as may appear.
4.1 Site Visit
[156] The Board conducted a site visit after the conclusion of the hearing on the
merits. The Board indicated to counsel during the hearing that they could, if they
wished, accompany the Board during the visit but they need not feel obliged to do so.
Mr. Weatherhead, Counsel for the Intervenors, wished to do so, and with the consent of
other Counsel, was the only person accompanying the Board during the site visit.
[157] The Board’s site visit involved, variously, driving and walking, to and in,
areas in Dartmouth referred to in the evidence, including:
• the subject property on the corner of Prince Albert Road and Glenwood Avenue,
and the housing extending from the subject property along the length of
Glenwood Avenue;
• the Robin’s Donuts site on Glenwood Avenue and Prince Albert Road;
• the former service station site on the east site of Prince Albert Road;
• the Banook Shores condominium facing across Prince Albert Road to the Lake;
• the Twin Lakes site,
• the NAPA property;
• Prince Albert Road, running from the south at its intersection with Ochterloney
Street, near Sullivan’s Pond, along its entire length to its northern end near the
Superstore;
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• the Alderney School site, which the Board reached via the streets leading from
the northern end of Prince Albert Road;
• the two motels off Prince Albert near the Superstore;
• Celtic Drive, which runs up from Prince Albert Road, and is parallel to Glenwood,
but one street south of it;
• Cranston Avenue (where Mr. Lloyd lives, which runs parallel to, and one street
south of, Celtic);
• the Superstore site;
• Graham’s Grove Park;
• the Paddlers Cove site;
• the small C-2 zoned properties on Prince Albert Road which are more or less
across from the subject property;
• Ashton Lane, where the Intervenor, Mr. Weatherhead, lives;
• Lakeview Point Road, which is about two hundred feet from the subject property,
and runs roughly parallel to the Paddlers Cove site, and contains single-family,
and other low density housing, on and near the waterfront of Lake Banook;
• moving west and south from the west side of Lake Banook, to 55 Crichton
Avenue and 1 Oak Street, the 13-storey and 15-storey buildings to the
southwest of Sullivan’s Pond, referred to in the Heseltine and Young report;
• finally, the northwest corner of Lake Banook with its existing condominium
buildings, and the as yet undeveloped YMCA site.
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5.0 ANALYSIS AND FINDINGS 5.1 Preliminary Hearings
[158] The hearing on the merits in this matter was preceded by several
preliminary hearings. The matters raised in these were wide ranging: requests for
intervenor status; a request by the Appellant Monaco to require HRM to (among other
things) file its evidence first, rather than the Appellant, and to provide an explanation of
its actions; an application by HRM to restrict the subject of the appeal to that of a
rezoning only (rather than of a rezoning and of a development agreement); a motion by
the Intervenor, Mr. Weatherhead, challenging Monaco’s status to engage in the original
application process with HRM, and (implicitly at least) in the appeal process to the
Board thereafter; a motion by Monaco to exclude certain evidence and witnesses; an
application by HRM for an extended adjournment of the hearing on the merits.
[159] The Board dealt with most of these through oral decisions which are
summarized in letters of direction from the Chief Clerk. The Board’s reasons for each of
its decisions are principally found in the recorded record.
[160] In one instance, the Board issued a written decision: Monaco Investments
Partnership v. HRM, 2012 NSUARB 38.
5.2 Municipal Government Act and Halifax Regional Municipality Charter [161] Appeals of this type were formerly governed by the provisions of the
Municipal Government Act, everywhere in the Province. In 2008, appeals in HRM
ceased to be subject to the Municipal Government Act, and came under the jurisdiction
of the new Halifax Regional Municipality Charter.
[162] Many provisions in the Halifax Charter correspond to provisions which are
found in the Municipal Government Act. The provisions of the latter act have been
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explored, in earlier decisions of the Court of Appeal, and the Board considers the
conclusions in those decisions to be applicable to the Halifax Charter.
5.3 Usage of Terms: “MPS,” “DMPS,” “RMPS” [163] This proceeding is subject to Regional Municipal Planning Strategy, RMPS,
and to the Dartmouth Municipal Planning Strategy, DMPS, in addition to the Halifax
Charter. In some instances, for the sake of simplicity and clarity, the Board will simply
refer to the “MPS,” which, depending upon the context, may refer to either or both of the
RMPS and DMPS.
5.4 Burden of Proof [164] As the Board noted earlier in this decision, the Board dismissed an
application by the Appellant, Monaco, to reverse the order of presentation of evidence,
and – in effect, as the Board saw it – the burden of proof.
[165] In this proceeding, as in appeals generally, the Board considered that the
burden of proof rested with the Appellant.
5.5 Standard of Proof [166] The standard of proof which the Board has applied in determining facts is
that of the balance of probability.
5.6 Applicable Principles of Statutory Interpretation [167] The Board considers that the liberal and purposive approach to statutory
interpretation applies in this proceeding. See, for example: Heritage Trust of Nova
Scotia v. Nova Scotia (Utility and Review Board), [1994] N.S.J. 50 (“Heritage Trust
1994”); MacDonald v. Halifax Investments, (1997) 162 N.S.R. (2d) 214 (SC).
5.7 Board’s Fact Finding Role
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[168] In Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board),
2006 NSCA 115, the Court of Appeal stated that the Board must:
…embark upon a thorough fact‑finding mission to determine the exact nature of the proposal in the context of the applicable MPS and corresponding by‑laws…
[para 51, per MacDonald, C.J.N.S.]
5.8 Municipal Councils as the “Primary Authority” for Planning
[169] The Halifax Charter specifically identifies HRM as the “primary authority”
for planning in the Municipality:
208 The purpose of this Part is to … (b) enable the Municipality to assume the primary authority for planning within its jurisdiction, consistent with its urban or rural character, through the adoption of municipal planning strategies and land-use by-laws consistent with interests and regulations of the Province;
[170] The concept of municipal council being the primary authority for planning is
not a new one. The Municipal Government Act likewise identifies municipal councils as
the primary authority. This status of municipal councils was underscored in Midtown:
[46] I reject the opponents' assertion that the Board owed no deference to Council despite the fact that the Board conducted its own full scale hearing. In fact, I believe Council and not the Board to be the primary decision maker when it comes to this type of planning issue. Let me briefly elaborate.
[47] Despite the Board's detailed hearing, it must be remembered that members of Council are elected and accountable to the citizens of HRM. As such they exercise discretion and are accordingly entitled to deference. As earlier noted, one purpose of the MGA is to provide municipalities with autonomy when it comes to planning strategies and development. This decision fell within Council's discretion, provided it reasonably reflected the intent of the MPS. As elected officials, their decisions must be respected. This court has said as much on several occasions. [per MacDonald, C.J.N.S.]
[171] Likewise, the Planning Act (the predecessor of the Municipal Government
Act) had a similar provision, the Court of Appeal stating (in “Heritage Trust 1994”) that
“the intent” of the Act was:
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…to make municipalities primarily responsible for planning; that purpose could be frustrated if the municipalities are not accorded the necessary latitude in planning decisions...
5.9 Board’s Limited Authority in Planning Appeals
[172] In keeping with the concept of municipal councils being the primary
authority, s. 265(1) (b) of the Halifax Charter limits the grounds for an appeal to the
Board of a decision by Council in relation to proposed rezonings or development
agreements. The Halifax Charter states:
265 (1) An aggrieved person or an applicant may only appeal … (a) an amendment or refusal to amend a land-use by-law, on the grounds that the decision of the Council does not reasonably carry out the intent of the municipal planning strategy;
(b) the approval or refusal of a development agreement or the approval of an amendment to a development agreement, on the grounds that the decision of the Council does not reasonably carry out the intent of the municipal planning strategy;
[173] The powers of the Board are similarly limited on such an appeal:
267 (2) The Board may not allow an appeal unless it determines that the decision of the Council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land-use by-law or the subdivision by-law. 2008, c. 39, s. 267.
[174] Thus, the Board must not interfere with a decision by Council in relation to
a proposed rezoning, or development agreement, unless it determines that the decision
does not reasonably carry out the intent of the MPS. The burden of proof is on the
Appellant to establish this.
[175] If an appellant can show, on the balance of probabilities that a decision by
Council does not reasonably carry out the intent of the MPS, the Board must reverse
Council's decision to enter into the development agreement. If, however, the appellant
fails to meet this standard of proof, it is the Board's duty to defer to Council's decision.
On this point, see Heritage Trust 1994:
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[99] In reviewing a decision of the municipal council to enter into a development agreement the Board, by reason of s. 78(6) of the Planning Act, cannot interfere with the decision if it is reasonably consistent with the intent of the municipal planning strategy. A plan is the framework within which municipal councils make decisions. The Board is reviewing a particular decision; it does not interpret the relevant policies or bylaws in a vacuum. In my opinion the proper approach of the Board to the interpretation of planning policies is to ascertain if the municipal council interpreted and applied the policies in a manner that the language of the policies can reasonably bear. This court, on an appeal from a decision of the Board for alleged errors of interpretation, should apply the same test. This is implicit in the scheme of the Planning Act and the review process established for appeals from decisions of municipal councils respecting development agreements. There may be more than one meaning that a policy is reasonably capable of bearing. This is such a case. In my opinion the Planning Act dictates that a pragmatic approach, rather than a strict literal approach to interpretation, is the correct approach. The Board should not be confined to looking at the words of the Policy in isolation but should consider the scheme of the relevant legislation and policies that impact on the decision… This approach to interpretation is consistent with the intent of the Planning Act to make municipalities primarily responsible for planning; that purpose could be frustrated if the municipalities are not accorded the necessary latitude in planning decisions... [100] Ascertaining the intent of a municipal planning strategy is inherently a very difficult task. Presumably that is why the Legislature limited the scope of the Board's review of enacting s. 78(6) of the Planning Act. The various policies set out in the Plan must be interpreted as part of the whole Plan. The Board, in its interpretation of various policies, must be guided, of course by the words used in the policies. The words ought to be given a liberal and purposive interpretation rather than a restrictive literal interpretation because the policies are intended to provide a framework in which development decisions are to be made. The Plan must be made to work. A narrow legalistic approach to the meaning of policies would not be consistent with the overall objective of the municipal planning strategy. The Planning Act and the policies which permit developments by agreement that do not comply with all the policies and by-laws of a municipality are recognition that municipal councils must have the scope for decision-making so long as the decisions are reasonably consistent with the intent of the plan. Very often ascertaining the intent of a policy can be achieved by considering the problem that policy was intended to resolve.
[176] The Court of Appeal in Heritage Trust further held, in relation to
“development by contract,” i.e., development agreements:
[163] The Planning Act imposes on municipalities the primary responsibility in planning matters. The Act gives the municipal council the authority to enter into development by contract which permits developments that do not comply with all the municipal bylaws (s. 55 of the Act). In keeping with the intent that municipalities have primary responsibility in planning matters, the Legislature has permitted only a limited appeal from their decisions (s. 78 of the Act). Planning policies address a multitude of planning considerations some of which are in conflict. Most striking are those that relate to economics versus heritage preservation. Planning decisions often involve compromises and choices between competing policies. Such decisions are best left to elected representatives who have the responsibility to weigh the competing interests and factors that impact on such decision… Neither the Board nor this court should embark on their review duties in a narrow legalistic manner as that would be contrary to the intent of the planning legislation.
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Policies are to be interpreted reasonably so as to give effect to their intent; there is not necessarily one correct interpretation. This is implicit in the scheme of the Planning Act and in particular in the limitation on the Board’s power to interfere with a decision of a municipal council to enter into development agreements…
[177] In Archibald v. Nova Scotia, 2010 NSCA 27, the Nova Scotia Court of
Appeal stated a summary of planning law. Speaking for the Court of Appeal, Fichaud,
J.A., said:
[24] …I will summarize my view of the applicable principles: (1) The Board usually is the first tribunal to hear sworn testimony with cross-examination respecting the proposal. The Board should undertake a thorough factual analysis to determine the nature of the proposal in the context of the MPS and any applicable land use by-law. (2) The appellant to the Board bears the onus to prove the facts that establish, on a balance of probabilities that the Council’s decision does not reasonably carry out the intent of the MPS. (3) The premise, stated in s. 190(b) of the MGA, for the formulation and application of planning policies is that the municipality be the primary steward of planning, through municipal planning strategies and land use by-laws. (4) The Board’s role is to decide an appeal from the Council’s decision. So the Board should not just launch its own detached planning analysis that disregards the Council's view. Rather, the Board should address the Council's conclusion and reasons and ask whether the Council’s decision does or does not reasonably carry out the intent of the MPS. Later (¶ 30) I will elaborate on the treatment of the Council’s reasons. (5) There may be more than one conclusion that reasonably carries out the intent of the MPS. If so, the consistency of the proposed development with the MPS does not automatically establish the converse proposition, that the Council’s refusal is inconsistent with the MPS. (6) The Board should not interpret the MPS formalistically, but pragmatically and purposively, to make the MPS work as a whole. From this vantage, the Board should gather the MPS’ intent on the relevant issue, then determine whether the Council’s decision reasonably carries out that intent. (7) When planning perspectives in the MPS intersect, the elected and democratically accountable Council may be expected to make a value judgment. Accordingly, barring an error of fact or principle, the Board should defer to the Council's compromises of conflicting intentions in the MPS and to the Council’s choices on question begging terms such as "appropriate" development or "undue" impact. By this, I do not suggest that the Board should apply a different standard of review for such matters. The Board’s statutory mandate remains to determine whether the Council’s decision reasonably carries out the intent of the MPS. But the intent of the MPS may be that the Council, and nobody else, choose between conflicting policies that appear in the MPS. This deference to Council’s difficult choices between conflicting policies is not a license for Council to make ad hoc decisions unguided by principle. As Justice Cromwell said, the
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“purpose of the MPS is not to confer authority on Council but to provide policy guidance on how Council’s authority should be exercised” (Lewis v. North West Community Council of HRM, 2001 NSCA 98 (CanLII), 2001 NSCA 98, ¶ 19). So, if the MPS’ intent is ascertainable, there is no deep shade for Council to illuminate, and the Board is unconstrained in determining whether the Council’s decision reasonably bears that intent. (8) The intent of the MPS is ascertained primarily from the wording of the written strategy. The search for intent also may be assisted by the enabling legislation that defines the municipality’s mandate in the formulation of planning strategy. For instance ss. 219(1) and (3) of the MGA direct the municipality to adopt a land use by-law "to carry out the intent of the municipal planning strategy" at "the same time" as the municipality adopts the MPS. The reflexivity between the MPS and a concurrently adopted land use by-law means the contemporaneous land use by-law may assist the Board to deduce the intent of the MPS. A land use by-law enacted after the MPS may offer little to the interpretation of the MPS.
[178] The Board now turns to the provisions of HRM’s MPS.
5.10 Issue 1: Rezoning Has the Appellant shown, on the balance of probabilities, that Harbour East Community Council’s decision to refuse Monaco’s application to rezone the subject property fails to reasonably carry out the intent of the Municipal Planning Strategy? For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses Monaco’s appeal with respect to the rezoning applications.
5.10.1 Irrelevance of Possible Future Changes to the MPS
[179] The Board will first note that Counsel for the Intervenors, at one stage,
pointed to possible future changes in the MPS which would limit height to eight storeys
in the area, and making reference to a possible Council vote related to the topic in the
fall of 2012. The Board considers that only those provisions which have actually been
enacted in the MPS are of any relevance, and has given no weight whatever to any
reference or suggestion that further height restrictions are, or may be, contemplated as
amendments to the MPS.
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5.10.2 Rezoning Topics
[180] As the Board has already recounted in the “Facts” section above, this
proceeding involves the proposed rezoning of two adjoining lots, and a proposed
development agreement in relation to those lots.
[181] In the present part of the decision, the Board will focus upon the proposed
rezoning of the two adjoining lots: Monaco wants the funeral home property to be
rezoned from C-2, and the abutting house property from R-2, both to R-4.
[182] The Board’s discussion of the rezoning matter includes the following topics:
• the MPS hierarchy;
• DMPS Policy IP-1(c);
• wind;
• traffic;
• shade.
Also included, at the conclusion of the discussion of the above topics, are sections
relating to the following two additional topics:
• population densification;
• opportunity sites.
In the view of the Board, many parts of the discussion relating to zoning are likewise
relevant to the development agreement issue.
[183] The Board will in this part review portions of the MPS, along with various
references in the evidence and factual findings, in particular reference to the rezoning
applications.
[184] Some of the MPS provisions to which the Board will refer apply to zoning
only, while other provisions apply to both rezoning and development agreement
applications. As certain concepts (particularly what the Board will refer to loosely as
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“compatibility”) are common, to one degree or another, to the provisions dealing with
both rezoning and development agreements, the Board will also sometimes, for clarity,
make reference to provisions which relate to the development agreement only.
5.10.3 A Hierarchy of Municipal Planning Strategies: the Regional Municipal Planning Strategy (RMPS) and the Dartmouth Municipal Planning Strategy (DMPS)
[185] Unlike most planning appeals, the subject property is not governed by a
single MPS.
[186] HRM was created by the Province from a number of existing municipalities,
including the former City of Dartmouth, in which the subject property was located. The
subject property is governed by two principal HRM planning documents: the Regional
Municipal Planning Strategy and the Dartmouth Municipal Planning Strategy.
[187] Of the two, the DMPS was the first to be adopted, in 1978, when the City of
Dartmouth was still in existence. It has been amended many times since.
[188] The RMPS was not adopted until 2006.
[189] Mr. Heseltine and Ms. Young say that the relationship between the RMPS
and the DMPS is complex, and the Board agrees. It considers that this was, in effect,
the opinion of Mr. Lloyd, and of Mr. Dickey, as well.
[190] Given its scope, the RMPS is, not surprisingly, a long document – 160
pages, not counting the attached maps. It has nine chapters and five appendices. Like
all municipal planning strategies, it has a number of discernible themes. In the Board’s
opinion, two of these themes, densification and opportunity sites, were emphasized by
the Appellant. Another theme, compatibility, was acknowledged by the Appellant, but
emphasized by the Respondent HRM and the Intervenors.
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[191] The introduction to the RMPS describes it as:
…a detailed, long-range, region-wide plan that outlines where, when and how future sustainable growth should occur in HRM.
[192] The introduction to the “Implementation” chapter of the RMPS describes it
as:
…the primary policy document used to guide decision making for growth and development within HRM. It gives an overall vision for land-use development, and provides general strategies and approaches…to achieve that vision.
[193] The RMPS says that:
HRM’s hierarchy of planning documents is changed upon the adoption of this plan. The RMPS:
…provides the overall policy framework for guiding and directing development throughout HRM.
[194] The adoption of the RMPS meant that the DMPS (along with 17 other
Municipal planning strategies and 15 secondary plans) now became a “secondary
planning strategy,” although its title (“Dartmouth Municipal Planning Strategy”) remained
the same.
[195] The RMPS contemplates extensive secondary planning processes
(involving steps, such as “visioning,” having significant public involvement) with potential
consequent changes to secondary planning strategies such as the DMPS. These were
to occur after the adoption of the RMPS. The RMPS gives direction as to how
“visioning” was to occur.
[196] It also includes references to criteria, such as, for example:
9.4.6 Criteria to Consider for Visioning and Planning The policies described below provide a set of community design criteria to consider during the visioning exercises and secondary planning processes. Participants will tailor the resulting vision and plan policies to the type of each community or centre and its location within HRM.
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G-12 To facilitate community stability, adaptability, vitality, quality, character and safety, Community Visioning exercises and secondary planning strategies shall consider: (a) encouraging compatibility in design while allowing sufficient scope to adapt to changing needs and markets;
… G-14 Community Visioning exercises and secondary planning strategies shall consider opportunities for the infill of two unit dwellings, small scale townhouses and low rise multiple units in appropriate locations within established neighbourhoods, including policies addressing: … (c) architecture, external design and appearance reflecting the traditional character of dwellings within the immediate neighbourhood; … (e) height, massing, scale and type of dwelling unit appropriate to the site and compatible with abutting and adjacent residential uses;
[197] The various community visioning exercises and preparation of secondary
planning strategies (referred to not just in S-39 but in G-12, and a number of other
provisions of the RMPS), have not as yet been engaged in, at least not to the point of
completion. This was noted by all the parties, the Heseltine and Young report
remarking:
Unfortunately for Dartmouth, these anticipated secondary planning processes, which would give the community opportunity to understand the identified opportunity sites, and have input into their development, has not occurred.
The Board will return to this subject elsewhere in this decision.
[198] Chapter 3 of the RMPS is entitled “Settlement and Housing.” Section 3.7.5
of that chapter (which appears just before the RMPS section on “Opportunity Sites,”
discussed elsewhere in this decision), is entitled “Neighbourhood Stability.” It says, in
part:
… This plan is designed to protect established neighbourhoods from rapid unplanned change by directing most future growth to centres where development can occur without affecting existing residents. Some limited growth can, however, be accommodated within existing neighbourhoods if it is planned with attention to good design that respects the local character. Small amounts of new development in appropriate locations can complement neighbourhoods and act as a catalyst for improvement. …
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There are many opportunities within established neighbourhoods where low to medium-density development can be accommodated without altering the local character. Through Community Visioning, future secondary planning processes may consider some new single and two unit dwellings, basement apartments, small scale townhouses and low rise multiple unit dwellings in appropriate locations. Within existing neighbourhoods, development would be required to comply with urban design guidelines. Policies and regulations will strive to ensure that infilling is sensitive, gradual and compatible with the existing physical character. Projects will be required to respect and reinforce the general physical patterns in existing neighbourhoods. [Emphasis added]
[199] The Board will here briefly refer to a matter to which it will return more than
once in the course of this decision: the breadth of possible meaning of important terms
in the MPS. In the context of the provisions the Board is currently exploring, these
include “appropriate locations” and “neighbourhoods.”
[200] “Appropriate locations” (which also appears elsewhere in the MPS, such as
in Policy G-14) is not defined in the MPS.
[201] When asked by Counsel for HRM, Ms. Brown, whether the meaning here
of the term “appropriate locations” was something for Council to decide, Ms. Young
replied:
…it is a subjective term. I’ll leave it there. [202] The Board agrees: the term is subjective. The Court of Appeal has
repeatedly commented on such terms in past planning appeals. For example, in
Archibald, the Court remarked that (barring an error of fact or principle) the Board
should defer to:
...Council’s choices on question begging terms such as ‘appropriate’ development or ‘undue’ impact.
[Archibald, para 24] [203] The Court has also repeatedly noted that policies in an MPS may have:
…more than one meaning that they are reasonably capable of bearing.
[Heritage Trust 1994]
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[204] Turning from the matter of “appropriate locations” to the term
“neighbourhood,” the Board notes that RMPS s. 3.7.5 makes repeated references to
“neighbourhood,” in various forms. It refers to “established neighbourhoods” once, to
“existing neighbourhoods” three times, and to simply “neighbourhoods” once.
[205] Just what a “neighbourhood,” or “established neighbourhood” or “existing
neighbourhood” is, or might be, and whether the subject property can be said to be in
one, or related to one, was repeatedly the subject of dispute in this proceeding.
[206] The term is referred to at some length in the “Development Agreement”
part of this decision.
[207] The Board notes that it concluded that the evidence before it (which was
consistent with evidence heard by the Board in other proceedings) does not point to
there being a restrictive, or even just generally accepted, definition of the word
“neighbourhood” within the planning profession.
[208] Further, Counsel did not point the Board to any definition in the MPS or the
Halifax Charter which would be applicable to this proceeding.
[209] Given the lack of professional or legislative definitions, the Board turns –as
is, in its opinion, the usual practice - to the ordinary meaning of the word, as it is used in
the context of the MPS.
[210] In one of their written submissions to the Board, Counsel for Monaco
referred to an earlier Board decision, Fares Group (Re), 2008 NSUARB 14, in which the
meaning of “neighbourhood” was discussed. For convenience, the Board will repeat
here a portion of that decision:
[71] Given the lack of professional definitions of “neighbourhood” and the lack of any applicable definition within the MPS itself, or in the Act, the Board now turns to the ordinary meaning of the word, as it is used in the context of the MPS. In exploring the
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usual or ordinary meaning of the word, through the use of a dictionary, the Board is employing the same practice followed in earlier decisions: see, for example, Midtown (Para. 178) and Ocean Produce (Para. 31). [72] The definitions of the word “neighbourhood” found in The Compact Edition of the Oxford English Dictionary (Oxford University Press, 1981) include:
2. The quality, condition or fact of being neighbours or lying near to something; nearness. b. Situation in respect of surroundings. 3. The vicinity, or near situation of something. b. In the neighbourhood of, somewhere about. 5. A community; a certain number of people who live close together. 6. The people living near to a certain place or within a certain range
[73] The American Heritage Dictionary of the English Language (American Heritage Publishing Company Incorporated 1969) includes the following definitions of “neighbourhood”:
1. A district considered in regard to its inhabitants or distinctive characteristics. 2. The people who live in a particular vicinity. [74] The Canadian Oxford Dictionary (2nd Edition, 2004), includes the following definitions of “neighbourhood:” 1a a district, esp. considered in reference to the character or circumstances of its inhabitants. b a small, but relatively self-contained section of a larger urban area; 3...the nearby or surrounding area, the vicinity.
[75] The Board concludes that the term “neighbourhood,” as defined in the above dictionary entries, does not have a narrowly limited, much less a fixed, definition. The term can, in the Board’s judgment, properly take on various meanings which reflect the circumstances in which it is used, and as such might be seen as covering (again, depending on the circumstances) larger, or smaller geographic areas.
[211] For the purposes of the present proceeding, the Board adopts its
conclusion with respect to the range of possible meaning of the term “neighbourhood,”
as expressed in paragraph 75 of Fares.
[212] RMPS Policy IM-22 recognizes the possibility of conflict between it and the
secondary planning strategy, such as the DMPS:
IM-22 In the event of conflict between this Plan and a Secondary Planning Strategy, the more stringent shall prevail.
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[213] While Dartmouth’s Municipal Planning Strategy, the DMPS, became (with
the adoption of the RMPS in 2006) a “Secondary Planning Strategy,” the RMPS is clear
on the continuing significance of the DMPS. The DMPS, and the other Municipal
planning strategies in existence at the time of the adoption of the RMPS, are –
according to the explicit language of the RMPS – to continue in effect, as official
municipal policy, until they are repealed, i.e., replaced by new secondary planning
strategies:
…until the secondary planning processes are completed HRM shall continue to regulate land use in those areas identified as centres and for those areas between centres according to the policies of the applicable existing secondary planning strategies in land-use by-laws, except where otherwise provided by this plan.”
5.10.4 DMPS Policy IP-1(c)
[214] Absent the completion of community visioning processes and secondary
planning processes (which, as the Board has already noted, has not occurred) it is the
existing DMPS policies, along with the RMPS policies, against which Council’s decision
must be measured.
[215] In the view of the Board, all of the witnesses recognized, to one degree or
another, DMPS Policy IP-1(c) as being of significance in re-zoning applications. The
policy includes the following:
DMPS POLICY IP 1 C … (c) Zoning By-law The Zoning By-law is the principal mechanism by which land use policies shall be implemented. lt shall set out zones, permitted uses and development standards which shall reflect the policies of the Municipal Development Plan as per Section 33 (3) of the Planning Act... … In considering zoning amendments and contract zoning, Council shall have regard to the following: … (2) that the proposal is compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal;
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(3) provisions for buffering, landscaping, screening, and access control to reduce potential incompatibilities with adjacent land uses and traffic arteries (4) that the proposal is not premature or inappropriate by reason of: … (vii) the presence of natural, historical features, buildings or sites … (6) that controls by way of agreements or other legal devices are placed on proposed developments to ensure compliance with approved plans and coordination between adjacent or nearby land uses and public facilities. Such controls may relate to, but are not limited to, the following: (i) type of use, density, and phasing … (iii) traffic generation, access to and egress from the site, and parking … (v) provisions for pedestrian movement and safety (vi) management of open space, parks, walkways … (7) suitability of the proposed site in terms of steepness of slope, soil conditions, rock outcroppings, location of watercourses, marshes, swamps, bogs, areas subject to flooding, proximity to major highways, ramps, railroads, or other nuisance factors.
[216] As a first point, the Board notes that some of the language used in DMPS
Policy IP-1(c) reflects the fact that the DMPS was adopted in 1978.
[217] For example, the policy refers to the Planning Act, which has since been
repealed, and replaced by the Municipal Government Act. Moreover, for HRM
(although not for other municipalities in the Province), the Municipal Government Act
itself has now been replaced by the Halifax Regional Municipality Charter.
[218] Further, DMPS Policy IP-1(c) refers to “contract zoning.” This is a term
which, for our purposes, can be considered to be synonymous with “development
agreements.” The latter term appears in the Municipal Government Act and Halifax
Charter; the former (“contract zoning”) is associated with the Planning Act.
[219] The Board noted above that the RMPS contains references to the term
“neighbourhood.” In looking at DMPS Policy IP-1(c), the word “neighbourhood” does not
appear. As will be seen under the “Development Agreement” part later in this decision,
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it does appear in DMPS Policy IP-5, which applies to development agreements (but not
to rezonings).
[220] Nevertheless, the Board does note that DMPS Policy IP-1C does use the
phrase “in the area” – and the Board sees “area” as being a term which, like
“neighbourhood”, is capable of broad interpretation.
[221] In interpreting DMPS Policy IP-1 (c), in the context of the present
proceeding, the Board notes as well the frequency with which the word “compatibility,”
or derivations of it, appear in it. The word “compatible” appears in clause (2), and
“incompatibilities” in clause (3).
[222] The term “compatibility,” and its derivatives, is likewise not defined within
the MPS. In the view of the Board, all parties, including Monaco, acknowledged that
compatibility is a relative term.
[223] In the context of the present proceeding, the term can be seen as having a
number of aspects. Included among these (although the Board notes by no means
restricted to) are three things (traffic; shade, or shadows; and wind) in relation to which
the Board received evidence from three experts retained by Monaco. There was no
corresponding evidence from HRM or the Intervenors. Because of the volume of
evidence received in relation to each of these topics, and of the submissions addressing
each, the Board deals with them separately below.
[224] In DMPS Policy IP-1(c)(6), the words “compatible” or “incompatible” do not
appear, but the provision refers to “coordination between adjacent or nearby land uses
and public facilities.” The Board sees the latter language as capturing some of the
same meaning as compatibility.
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[225] DMPS Policy IP-1(c)(2) tells Council it must have regard to a proposal
being compatible and consistent with what are called “adjacent uses” and the “existing
development form.” The meaning of such words as “adjacent” can be relatively wide
ranging and is not generally regarded as being restricted to simply land which is
abutting. Certainly, in the view of the Board, the words “in the area” (which appear after
the words “the existing development form”) can reasonably be regarded as even more
general.
[226] DMPS Policy IP-1(c)(2) goes on to direct that Council have regard to these
matters from the perspective of the:
…use, bulk, and scale of the proposal…
[227] The words “bulk” and “scale” are likewise not defined in the Halifax Charter
or the MPS, nor it seems, from the evidence, do they have any specific, narrow
professional usage which might give assistance in interpretation. In the view of the
Board, they can be reasonably interpreted to include at least such things as the
apparent width and height of a building in relation to other developments in the area.
While the specific word “height” is not mentioned in DMPS Policy IP-1, it does appear
(as will be seen later in this decision) in DMPS Policy IP-5.
[228] At DMPS Policy IP-1(c)(3), Council is also directed to have regard to,
among other things, “buffering.” The Canadian Oxford Dictionary defines “buffer” in part
as follows:
1. a a device that protects against or reduces the effect of an impact … 3 b an area, person, thing, etc., that protects from the potentially damaging impact of one person, activity, etc., on another.
The definition of “buffer” in The American Heritage Dictionary of the English Language
is similar.
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[229] IP-1 (c) (3) also says Council is to have regard to “access controls”, which
are to avoid potential incompatibility with adjacent land uses and roads.
[230] At DMPS Policy IP-1(c)(6), Council is directed to have regard to “controls”
which have as one of their objectives “coordination” with adjacent or nearby land uses.
Those controls may relate to such things as density, and also, once again, traffic.
[231] Before further exploring the idea of compatibility in the context of the MPS,
the Board will look first at how Mr. Dickey chose to approach the subject in his report to
Council.
[232] While DMPS Policy IP-1(c) contains a number of references expressly or
impliedly relating to compatibility, it will be recalled that Councillor McCluskey, in the
January 17th meeting at which Council rejected Monaco’s application, told Mr. Dickey
that he had not mentioned the compatibility of Monaco’s project in his report.
[233] The approach taken by Mr. Dickey in his report can be illustrated with the
following short excerpt from it, which contains his quotation of DMPS Policy IP-1(c)(2),
on the left, and his commentary about it, in the context of Monaco’s application, on the
right.
[234] The entry for DMPS Policy IP-1(c)(2), in its entirety, contains the following:
(2) that the proposal is compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal
High density residential use of 307 Prince Albert Road is more compatible with adjacent and nearby housing than commercial development, which has limited controls under the C-2 zone. There is a wide range of development types and scales in the area. Application of the R-4 zone will provide Council with control over the bulk and scale development on the site in relation to the immediate area.
[235] DMPS Policy IP-1(c)(2) then, talks about a proposal being compatible and
consistent with adjacent uses and the existing development form, in the area, in terms
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of the use, bulk, and scale of the proposal. In the Board’s judgment, the corresponding
discussion, as quoted above, could properly be expected to include an evaluation of the
proposal itself in the context of items mentioned in the subsection (such as “adjacent
uses” and “existing development form”). As but one example, the discussion might be
expected to include references to the height of the proposed building and the height of
existing structures in the area.
[236] In the view of the Board, however, the above-noted excerpt ignores such
information, and refers only to the possible effects of a different project, or “alternative
use” – a commercial one – going up on the site if the present proposal were not to be
accepted. One of the alternative uses which Mr. Dickey mentioned in his evidence, as
the Board has previously noted, is a hotel. In the midst of the application process for
the development which is the subject of this appeal, Monaco applied for and obtained a
development permit for the construction of a 16-storey hotel (one storey higher than
Monaco’s proposed project).
[237] Mr. Dickey took a similar approach in other parts of his evidence.
[238] As a further example, DMPS Policy IP-1(c)(6) Zoning By-Law includes (as
the Board has already noted) reference to ensuring coordination between adjacent or
nearby land uses and public facilities. Such controls may relate to “type of use, density
and phasing.”
[239] Once again, however, Mr. Dickey’s discussion of this provision (in the
same style as his presentation of DMPS Policy IP-1(c)(2)) does not compare Monaco’s
proposed high-density development to the existing uses. Instead, it simply says that the
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proposed high-density development is to “avoid the introduction of larger-scale
development” which could arise under the commercial designation.
[240] In the view of the Board, this aspect of Mr. Dickey’s approach was
mirrored, to a degree, in the following written submission by Counsel for Monaco, who
remarked that compatibility is:
…a relative term which can be measured by considering existing lawful alternative uses than the one proposed.
[241] The Board thinks compatibility is indeed a relative term. But, while its
evaluation can involve (in the Board’s opinion) the consideration of alternative uses, it
must not be restricted to that, and the Board did not take the submissions of Counsel for
Monaco, taken as a whole, as arguing that it should.
[242] It is true that, in their March 29, 2012, report, Mr. Heseltine and Ms. Young
themselves do look at, and emphasize, alternative uses. They also look, however, at
such things as the existing pattern of development, etc.
[243] Mr. Lloyd took exactly the opposite view to that of Monaco and its experts.
In his opinion, the question of an alternative use (such as a hotel) is irrelevant to the
question of evaluating compatibility: the proper focus, he says, is upon the project
proposed.
[244] One justification for Mr. Lloyd’s position is the fact that the MPS does not
explicitly identify the question of alternative uses as a criterion to be evaluated.
[245] Nevertheless, the Board, having considered the submissions and evidence
before it, does not agree with his assertion that alternative uses are necessarily
irrelevant.
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[246] Instead, the Board sees alternative uses as being, in certain circumstances
(including the present proceeding), a matter which Council may reasonably take into
account, under the MPS, when reaching a decision with respect to planning matters.
An example of an appeal in which the Board saw alternative uses as a relevant
consideration is Armour Group Limited vs. HRM et al., 2009 NSUARB 35.
[247] However, within the context of DMPS Policy IP-1(c), it is the judgment of
the Board that the compatibility of the use which is actually being proposed (as opposed
to some alternative use) is something which is not just sometimes relevant, but –
without doubt – always relevant.
[248] In short, the Board has concluded that Policy IP-1(c)(2)’s statement that
Council must have regard:
…that the proposal is compatible and consistent with adjacent uses in the existing development form…
properly requires (in the Board’s judgment) evaluating the actual proposed development
against the development existing in the area.
[249] In looking at Monaco’s proposal itself (rather than an alternative project,
such as a hotel), the Board considers that many aspects of the evidence may be seen
as relating, in one way or another, to compatibility (and to related terms, such as
buffering).
[250] Turning first to height, the project is to be 15 storeys in height, or perhaps
about 150 feet tall. As the Board has noted previously, the term “height” appears
explicitly in DMPS Policy IP-5 (which relates only to development agreements), but not
in DMPS Policy IP-1(c), which applies to rezonings as well as development agreements.
Nevertheless, quite apart from the RMPS, the Board considers height to be implicitly
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incorporated in the DMPS in relation to rezonings, including in the use of the term
“scale.”
[251] Mr. Heseltine and Ms. Young claim that:
The amalgamation of the R-2 Parcel with the C-2 Parcel provided the necessary buffer space to the adjacent single-family homes.
They strongly believe that the tower is not too tall for its location.
[252] Once again, Mr. Lloyd emphatically disagrees. He sees the 15-storey
structure as fundamentally incompatible with the one and two-storey houses which are
immediately adjacent to the subject property. These houses line both sides of
Glenwood running up from Prince Albert.
[253] The “buffer” to which Mr. Heseltine and Ms. Young refer is, in essence, little
more than the single residential lot lying between the C-2 property (upon which the
Monaco tower is to rise) and the first of the houses on Glenwood.
[254] The Board need not find that the buffering claim made by Mr. Heseltine and
Ms. Young is not reasonably consistent with the MPS. It need only conclude that the
contrary view –that Monaco’s tower, given its short distance from the adjacent houses,
is too much height, too soon – is reasonably consistent with the MPS.
[255] If one steps back and looks along the approximately one mile length of
Prince Albert Road (and the streets immediately off it), the tallest presently existing
building is only five storeys. Among the existing buildings in the area, then, a 15-storey
tower would be a sharp departure.
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[256] With respect to Monaco’s evidence on the point, the Board notes that the
March 29, 2012, report by Mr. Heseltine and Ms. Young says, in reference to high-rise
buildings, that, in:
…the immediate neighbourhood around Lake Banook we identified a number of very tall buildings, including two of a similar height to the proposal – One Oak Street and 55 Crichton Park Drive [sic].
A reader ought not to infer from their reference to these buildings being in “the
immediate neighbourhood around Lake Banook” that they are in the immediate
neighbourhood around the subject property, on Prince Albert Road. They are not.
[257] For greater certainty, the Board notes that none of the high-rise buildings
emphasized in Monaco’s evidence are located in the Prince Albert Road area, which is
on the east side of Lake Banook.
[258] 55 Crichton Avenue and 1 Oak Street, the two tallest (at 15 storeys and 13
storeys), are located to the south and west of Lake Banook. More specifically, they are
a few hundred feet to the west of Sullivan’s Pond, which itself is a few hundred feet
south of the extreme southwestern tip of Lake Banook.
[259] The Board notes that, in their May 2, 2012, report, Mr. Heseltine and Ms.
Young likewise claim proximity of the subject property to 1 Oak Street and 55 Crichton
Avenue. They refer to them as being “in the immediate area”; by the Board’s
estimation, they are at least three quarters of a mile away.
[260] The other three are clustered in a wooded area in the northwest corner of
Lake Banook, near the still-undeveloped YMCA site. The tallest is 10 storeys high, and
the other two are seven storeys high.
[261] Apart from being three times as tall as any other buildings in the Prince
Albert Road area, the Monaco proposal would also be much higher than the 35-foot
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height-restriction area around Lake Banook, which the Board will discuss in more detail
under the subject “Wind.”
[262] In the present context of compatibility, the Board notes once again that
HRM planning staff had recommended approval of a seven-storey building on the
nearby Paddlers Cove site, but Council had rejected it. Immediately after rejecting the
Paddlers Cove recommendation, Council imposed a 35-foot height-restriction area
around Lake Banook, which included the Paddlers Cove site.
[263] In Monaco, the planning staff is now recommending a 15-storey building on
a property which literally abuts the 35-foot height-restriction area. When Counsel for the
Intervenors asked Mr. Dickey if he agreed that a height increase from 35 feet to 150 feet
was “a substantial jump,” Mr. Dickey replied, “No.”
[264] The Board need not find Mr. Dickey’s answer on this point to be
unreasonable, but it does find that the opposite view would be one that would
reasonably carry out the intent of the MPS.
5.10.5 Emphasis by Monaco on C-2 Zoning [265] As the Board perceived it, Monaco (and its experts, Mr. Heseltine and Ms.
Young, and, in effect, Mr. Dickey) placed great importance on the fact that the tower
itself would be built exclusively on the funeral home lot, which is currently zoned
Commercial (C-2), and not on the R-2 lot which is also part of the property.
[266] It appeared to the Board that the importance which Monaco attached to the
C-2 zoning of the lot on which the tower is proposed to be built had several aspects.
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[267] In explaining the importance which they attach to this C-2 Zone, Monaco
and its experts more than once compared the zoning in the Twin Lakes project with the
zoning in the Monaco project.
[268] As the Board has discussed previously, planning staff opposed approval of
the Twin Lakes project, but Council approved it anyway.
[269] In Twin Lakes, the building itself would stand entirely on land lying in the
Residential Designation, which was zoned R-2. The portion accommodating the
driveways would be on lands within the commercial designation.
[270] The proposed Monaco project is exactly the reverse. In Monaco, the
building would stand entirely on land zoned C-2. The above-ground parking, and a
portion of the underground parking garage, would be on land currently zoned R-2.
[271] A principal reason for staff’s opposition to the Twin Lakes proposal was
that the high-rise residential structure would be built on lands currently zoned for only R-
2 (i.e., residential, but not high rise).
[272] Mr. Dickey – together with Mr. Heseltine and Ms. Young – saw this as an
“important distinction.” From the perspective of Monaco’s experts and its Counsel,
Monaco’s building would be “a more favourable situation” than would be the Twin Lakes
structure, because Monaco’s tower would be in an area currently zoned C-2, rather than
Residential.
[273] The significance which Mr. Dickey, and Mr. Heseltine and Ms. Young,
attribute to Monaco’s tower being on a C-2 lot (rather than one zoned Residential)
cannot be, in the Board’s view, underestimated.
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[274] As but one illustration, Mr. Dickey testified that if the proposed location of
the tower were to be moved from its present proposed position just 50 feet up
Glenwood, he would have opposed it – because the tower, or at least part of it, would
now stand outside the C-2 lot.
[275] The Board observes two difficulties with this position. The first relates to
the parking for the Monaco project (which is essential to its success) being
accommodated in part on lands currently zoned R-2; the second, and the more
important, relates to what the Board sees as an emphasis on zoning (and the
commercial designation) as key, as opposed to what the MPS as a whole, and in
particular, DMPS Policy IP-C(1), actually says. The Board will deal with these two
aspects in order.
[276] With respect to the first aspect, parking, the Board notes that, for the
Monaco development to work, Monaco had to incorporate 5 Glenwood (presently zoned
R-2) into its provisions for parking, both below ground and above ground, on the east
side of the building. In short, Mr. Dickey placed heavy emphasis on the fact that the
Monaco tower alone would, itself, not stand on land that had previously been zoned
residential – but Monaco’s development could not go forward in its present configuration
without the residentially-zoned lot at 5 Glenwood being incorporated into the building
site.
[277] To put it another way, a portion of the long-existing residential area would
not be merely adjacent to Monaco’s development, but would be an integral, and
necessary, part of it.
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[278] The Board sees no provision in the MPS or the LUB, or indeed in planning
principles as they have been elucidated in the case law by the Court of Appeal, which
suggests that, somehow or other, taking R-2 land, and rezoning it to R-4 to create an
essential parking lot, would, as a matter of principle, be acceptable – while placing the
tower itself, or even a tiny portion of it, on the former R-2 lot, would, as a matter of
principle, not be.
[279] Before moving on to the second point (relating to Monaco’s emphasis on
zoning), the Board will first observe that it, of course, recognizes that zoning is central
and critical to as of right development. If a particular piece of property is in a particular
zone, particular uses may occur upon it.
[280] The present proceeding, however, is not, of course, an as of right
development – so, while the zoning of the subject property is, of course, relevant, it is
not, in the judgment of the Board, determinative.
[281] With respect to the second aspect (Monaco’s emphasis on zoning), DMPS
Policy IP-1(c)(2) refers, in part, to Council having regard to a project being compatible
and consistent with adjacent uses, and with the existing development form in “the area.”
It does not say in “the zone.”
[282] More than once, however, the Board perceived the positions taken by
Monaco’s experts, which were naturally reflected in the submissions of Monaco’s
counsel, as meaning that the C-2 zoning somehow isolated the lot upon which
Monaco’s tower is to be built from such things around it as the adjacent residential
development.
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[283] For example, Mr. Dickey testified that Monaco’s project is:
…in a more favourable situation than Twin Lakes as it is not introducing a building into the residential designation, but rather in the area currently zoned C-2.
[284] In a similar vein, Counsel for Monaco argued in one of its written
submissions to the Board that the project:
Provides an ideal opportunity to pursue [the goal of population densification] as the site on which the building is proposed is zoned C-2, is in a commercial area adjacent to a residential area, and is located on a major traffic corridor. It is outside the established neighbourhood to which it is adjacent. [Emphasis added]
[285] Likewise, Counsel for Monaco also remarks:
…The site of the Prince Albert cannot be said to be in an “established neighbourhood” as it is zoned C-2.
[286] The Board will, later in this decision (in the “Development Agreement” part),
discuss further the evidence and submissions by Monaco with respect to the concept of
“neighbourhood,” as well as Monaco’s view of the relationship between zoning and the
concept of neighbourhood, as illustrated in the above passage.
[287] For the purposes of the present discussion of the rezoning application,
however, the Board first notes that the above quotations refer to the term
“neighbourhood.” As the Board noted earlier in this decision, the term “neighbourhood”
appears in the RMPS, and also in DMPS Policy IP-5, but not in DMPS Policy IP-1(c); it
is, without doubt, an important one in the MPS, but it is not defined, either on its own, or
in derivative form, such as “established neighbourhood.”
[288] In the judgment of the Board, the assertion by Counsel for Monaco that his
client’s tower would be “outside the established neighbourhood” is, at best, but one
reasonable interpretation of the facts and the MPS in the present circumstances. The
Board considers to be at least equally persuasive the argument that regarding Monaco’s
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development as part of the established neighbourhood is a reasonable interpretation of
the MPS.
[289] In the view of the Board, this argument is even stronger when one
recognizes that DMPS Policy IP-1(c) refers only to the term “area,” rather than the term
“neighbourhood.” In the view of the Board, the term “area” is even broader, or more
subjective, than the term “neighbourhood.”
[290] The Board thinks that one reasonable interpretation of the MPS is that the
extensive R-2 development on Glenwood, adjacent to the subject property and
extending up the hill on both sides of the street, amount to “an existing development
form,” which is located “in the area” of the subject property. Likewise, the low-rise
residential housing on and near the shore of Lake Banook, on Lakeview Point Road,
Hume Street and Ashton Lane (which are on the opposite side of Prince Albert Road
from the subject property) could also be reasonably seen as an existing development
form in the area.
[291] As such, it is the Board’s judgment that this is a matter to which Council
could properly have regard in evaluating Monaco’s proposal, including its “bulk and
scale.”
[292] In making this point, the Board is conscious of the position (referred to later
in the “Development Agreement” part of this decision) of Counsel for Monaco in which
he rejects the argument (which he attributes to HRM and the Intervenors) that:
…as long as there are single-family homes in the vicinity, [high-rise] development is precluded.
[293] For greater certainty, the Board, in reaching its conclusion on this point,
does not mean to imply that, under the MPS, the presence of low-rise residential
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buildings in an area automatically means that a high-rise building would be
incompatible. The Board is simply saying that, in the context of the MPS (particularly
DMPS Policy IP-1(c)) in the present proceeding, the close proximity of the subject
property to low-rise residential housing is a matter to which Council can reasonably
have regard in considering a zoning application.
5.10.6 Wind, Traffic and Shadows
[294] The Board will now turn to the subjects of wind, traffic, and shadows. For
each of these topics, Monaco commissioned engineering reports, and provided oral
testimony from the persons who prepared those reports. These topics were discussed
from a variety of perspectives, but all were discussed at least partly in the context of the
concept of compatibility, including with respect to DMPS Policy IP-1(c) and DMPS
Policy IP-5.
5.10.6.1 Wind
[295] Wind was the subject of extensive oral and written evidence and
submissions. Given the provisions of the MPS, and the evidence before it, the Board
perceives two fundamental questions with respect to the matter of wind in this
proceeding:
• are wind effects on Lake Banook a matter which may properly be regarded under the MPS, in the context of this proceeding?
• what is the evidence respecting wind on Lake Banook, in the context of the MPS?
5.10.6.1.1 Are Wind Effects on Lake Banook a Matter
Which may Properly be Regarded under the MPS, in the Context of this Proceeding?
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[296] The initial question to be resolved is whether a consideration of wind
effects on Lake Banook is something which can properly be considered, under the
MPS, in the context of Monaco’s proposed building.
[297] Mr. Heseltine and Ms. Young acknowledged that: Wind is the key concern with taller structures.
[298] However, they also said:
While we do not believe there is a policy basis for the request, the applicant also had the wind study consider potential impacts on Lake Banook.
According to Mr. Heseltine and Ms. Young, then, there is no “policy basis” for HRM
having requested a wind study. The Board considers that a reasonable interpretation of
this is that they were asserting that the policies of the MPS do not provide a basis for
HRM’s request for information about the possible wind effects on the lake.
[299] As the Board has previously discussed, the subject property abuts, but is
outside, the Banook Lake 35-foot height-restriction area. One might infer that one
reason (at least in part) for their position is the fact that the subject property is outside
the 35-foot height-restriction area – even if only just.
[300] The Board does note that Mr. Heseltine and Ms. Young did comment,
elsewhere in their evidence, upon the matter of wind and the Lake.
[301] The Board will not here speculate further as to the possible intended scope
of the above-quoted statement. Whatever the meaning intended by Mr. Heseltine and
Ms. Young, it is the Board’s opinion that the MPS (in more than one provision) makes
consideration of wind impacts on Lake Banook something which can reasonably be
taken into consideration in the circumstances of the present proceeding.
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[302] Looking only at DMPS Policy IP-1(c), one finds the MPS directs Council to
have regard (both with respect to zoning amendments and development agreements) to
the proposal being, for example:
…compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal…
The provision also refers to the reduction of:
…potential incompatibilities with adjacent land uses… [303] On this point, the Board notes, first, that the staff report prepared by Mr.
Dickey (who in most ways allied himself with the position of Mr. Heseltine and Ms.
Young at the hearing) specifically states that the MPS allows Council, in making its
decision, “to consider wind impacts.” He cites DMPS Policy IP-1(c)(3) and (4)(ix)
respectively. Mr. Dickey’s report concludes that the Lake Banook paddling course “is
not negatively impacted.”
[304] The staff report makes it clear that staff were not looking at the matter of
pedestrians on sidewalks adjacent to the building only, but also the matter of wind
effects on Lake Banook, noting:
…although the site is outside of the area defined by Council, there is a public concern that a project of this scale and bulk may impact the paddling course.
The quoted statement, then, says there is a “public concern” about the effects of wind
on Banook – but not that the MPS justifies attention to the matter.
[305] Other parts of Mr. Dickey’s evidence left the Board not entirely clear as to
whether he was indeed willing to acknowledge that activities on Lake Banook could be
properly regarded as an “adjacent” or “nearby” land use within the meaning of (for
example) DMPS Policy IP-1(c)(2) and (6); the Board saw Mr. Dickey, under cross
examination by Ms. Brown, as being reluctant to acknowledge this.
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[306] When she questioned him, for example, with respect to the words,
“compatible and consistent with adjacent uses” as it appears in DMPS Policy IP-1(c)(2),
he initially asserted that adjacent meant “directly abutting.” He then said it could mean
“very, very nearby.”
[307] When she asked him if the parkland next to Lake Banook – the existence
of which he had relied on in his calculation of extra, or “bonus,” units, thereby allowing
Monaco’s building to be larger (a matter dealt with elsewhere, in Issue 3, in this
decision) – he said that he considered that the park and the trail (the latter being a
relatively narrow band lying between Prince Albert Road and the shoreline of Lake
Banook) were “nearby.” The park and trail, of course, are in the 35-foot height-restriction
zone.
[308] Under further cross examination, he maintained (as the Board perceived it)
that the park and trail were an adjacent use (and, accordingly, justifiably used by him to
calculate additional bonus units for Monaco). On the other hand, Lake Banook – the
shore of which, again, forms a boundary of the park and of the narrow trail – was not
something to be taken into account:
…I honestly can’t see extending that argument to the Lake itself…
[309] The Board found this assertion to be remarkable: a principal reason for the
the 35-foot height restriction around Lake Banook is the protection, mainly related to
wind, of activities on Lake Banook, including, in particular, boat races. The boundary of
the restriction area runs along Prince Albert Road, and as the Board has already noted
earlier in this decision, zig zags around the subject property, which abuts it. If it were
not for the zig zag, the subject property would be in the restriction area. Despite this,
however, it appeared to remain Mr. Dickey’s position that the lake was not something
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which could properly be included in the definition of an “adjacent use” within the
meaning of IP-1(c)(2).
[310] In addition to DMPS Policy IP-1(c), there are, in the view of the Board,
other provisions in the MPS which are likewise consistent with the view that possible
wind effects on Lake Banook are a factor which can reasonably be taken into account.
For example, RMPS Policy IM-15 (which the Board notes relates to development
agreements, but not rezonings) addresses itself, in part, to “conflict with any adjacent or
nearby land uses” by reason of height and bulk:
RMPS IM-15 In considering development agreements or amendments to land use by-laws, in addition to all other criteria as set out in various policies of this Plan, HRM shall consider the following: … (b) that controls are placed on the proposed development so as to reduce conflict with any adjacent or nearby land uses by reason of: (i) type of use; (ii) height, bulk and lot coverage of any proposed building; (iii) traffic generation, access to and egress from the site, and parking; …
IM-15 (b)(iv) and (v) omitted as not relevant to this matter. [311] DMPS Policy IP-1(c)(2) refers to simply “adjacent uses,” while RMPS
Policy IM-15 refers to “adjacent or nearby land uses.” While the Board did not perceive
the point as being pursued by the parties, the Board considers it might be possible to
argue that the boating activities on the waters of Lake Banook are not a “land” use.
Given the view the Board takes of the MPS as a whole, and its view of the proper
disposition of this case, the Board will not here explore whatever merits that argument
might have. Instead, it simply notes once again that, for example, DMPS Policy IP-
1(c)(2) refers simply to “adjacent uses,” (not “adjacent land uses”).
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[312] Lastly, the Board notes once again the existence of other provisions within
the MPS which relate to the use of Lake Banook, including DMPS Policy IP-9, entitled
Lake Banook Canoe Course, which relates to development agreements.
[313] Taking into account the MPS and evidence before it as a whole, the Board
considers it a reasonable interpretation of the MPS that the possible wind effect of
Monaco’s proposed tower upon Lake Banook, and the activities occurring on it, is
something to which Council could give weight, as long as the weight given is reasonably
consistent with the MPS taken as a whole.
5.10.6.1.2 What is the Evidence Respecting Wind on Lake Banook, in the Context of the MPS?
[314] In the preceding paragraphs, the Board determined that the matter of wind
is one which it is proper, under the MPS, to consider in this appeal. The Board now
turns to a second wind-related question: what is the evidence before the Board with
respect to wind, and what significance can properly be attributed to it, in the context of
the MPS?
[315] Counsel for Monaco points out that the only expert evidence before the
Board with respect to wind has been supplied by Monaco through Dr. Wu.
[316] In other words, the Board received no expert evidence from either HRM or
the Intervenors with respect to wind.
[317] On this point, the Board notes that it did, in the course of its various
preliminary hearings on this matter, disallow certain portions of evidence which the
Intervenors and HRM proposed to present, which related, at least in part, to wind. The
reasons for this deletion included failure, in the Board’s opinion, to meet the evidentiary
rules with respect to opinion evidence.
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[318] Dr. Wu’s report of June 22, 2011 (but not the earlier version of June 15th,
as the Board has already recounted under “Facts,” above) states that:
…there are no negative consequences resulting from the building that could affect the lake and no further investigation is warranted.
The Board considers that this statement, taken by itself, might be interpreted by a
reasonable reader as very nearly absolute; indeed, the Board interpreted some of the
submissions and other evidence on behalf of Monaco as suggesting that that is the view
that the Board should take of Dr. Wu’s evidence.
[319] The opposing point of view, however – as put forward by Counsel for HRM,
both in cross examination and in subsequent written submissions – is that Dr. Wu’s
report should be seen as one which contains a number of implicit, and even explicit,
limitations, and that its contents do not preclude Council from reasonably having regard
to potential wind impacts.
[320] In general, the Board agrees with the submissions by HRM in relation to
this point.
[321] The Board will here briefly explore some of its reasons for this conclusion.
[322] First, the Board notes that Dr. Wu expressly acknowledges that:
There are no universal criteria available for evaluating the wind effects on a canoe course.
[323] Because of this lack of universal criteria, Dr. Wu has developed his own
methodology, beginning sometime around 2003. It has not yet, however, been the
subject of peer review, nor has it – at least according to the evidence before the Board –
been adopted by others.
[324] At least some, if not all, of his previous estimations of wind on and around
Lake Banook (done in relation to earlier projects which did not go forward) involved
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wind-tunnel analysis. In a wind-tunnel analysis, a physical model of the area is created,
artificially-created wind is blown over it, and measurements carried out.
[325] In dealing with the Monaco project, Dr. Wu did not use the wind-tunnel
approach. Instead, he used a so-called “desktop” review, which does not use any
physical model. Instead, it involves an analysis which is done entirely inside a
computer.
[326] The Board concluded from the evidence of Dr. Wu that he had chosen to
do a desktop review, rather than a wind-tunnel review, because he considered that it
was adequate for the task, and because the desktop review would be cheaper. A
typical desktop review might cost a third, or a little more, of the cost of a wind-tunnel
review.
[327] In carrying out his desktop review, Dr. Wu first loaded into a computer a
virtual (i.e., not physically existing) representation of the topography around the subject
property. The Board notes that Dr. Wu’s report does not specifically identify what
building design he assumed would be constructed on the subject property.
[328] He also acknowledged, on cross examination, that he did not take into
account the vegetation along the shoreline, which could have an impact on wind
condition.
[329] After inputting the topographical data, the second key input was wind data.
The wind data he used was not measured at Lake Banook itself. Instead, he relied (as
had previously been accepted as a reasonable approach for earlier wind studies at Lake
Banook) upon wind records of measurements taken at Shearwater Airport.
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[330] Lake Banook is at least three miles from Shearwater. Shearwater is on
relatively flat land, and adjacent to the ocean. Dr. Wu acknowledged on cross
examination that sea breezes could have an effect upon Shearwater, given its location
adjacent to the ocean.
[331] Banook lies in what amounts to a valley, with a relatively steep slope on its
easternmost side, i.e., between it and Shearwater.
[332] In using the Shearwater wind data, Dr. Wu:
• “lifted” (again, virtually) the wind data for Shearwater to an altitude of
about 2,000 feet above the airport, changing the wind direction and speed to
reflect the increased altitude, using certain assumptions about the behaviour of
wind in doing so;
• “moved” the hypothetical winds to a position above the virtual
representation of the subject property and the topography around it, including
the lake;
• “lowered” them onto the subject property and the area around it, once
again making certain assumptions about what would happen to wind speed and
direction as a result of the lowering;
• observed in his computer the interaction between the “virtual” winds and
the “virtual” topography;
• developed from these observations (as seen through the wind
methodology he himself developed) his predictions as to the likely behaviour of
winds in the area.
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[333] In the view of the Board, Dr. Wu is indeed convinced that the risks of
potential effects on wind conditions over the canoe course on Lake Banook are
“negligible.”
[334] But Dr. Wu also had no difficulty acknowledging that a desktop review is
not the equal of a wind tunnel review. Further, he freely acknowledged that sometimes
even a wind tunnel result may not be accurate. The Board interpreted his evidence as
being that “nobody” would assert that a wind-tunnel result could be 100% accurate.
[335] The Board concluded from the evidence and submissions before it on the
point that Dr. Wu’s results are, on the balance of probabilities, likely to be correct – but it
is not at all impossible they may be wrong.
[336] On this point, Counsel for HRM, in their written submissions, assert that if
the results of Dr. Wu’s desktop simulation are:
…flawed or inaccurate the harm would be irreparable and the only recourse would be to live with the results.
In the worst case, Counsel for HRM suggests, this might include the Lake Banook
course losing its world-class status, with effects not just on competitors, but on the
community as a whole.
[337] While this statement might provoke the assertion that this is mere
speculation on the part of Counsel for HRM, the Board does not consider it inconsistent
with the evidence before it as a whole, or indeed inconsistent with the MPS provisions
which relate in one way or another (expressly or otherwise) to Lake Banook. For
example, the introduction to DMPS Policies IP-9 and IP-10 states (within the specific
context of the 35-foot height restriction):
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(q) Lake Banook Canoe Course Lake Banook canoe course is one of the best natural canoe courses in the world and it hosts both national and international canoe events…wind impacts resulting from large building developments which prevent the course from holding national and international regattas would have significant regional impacts.[Emphasis added]
Summary with Respect to Wind
[338] As the Board has noted, the subject property abuts the Banook 35-foot
restriction area. A principal factor – as is indicated by, among other things, DMPS
Policy IP-9, to which the Board has just referred – in the adoption of that restriction area
is a concern about the possible wind impact upon the lake. Just across the street from
the subject property (in either direction, i.e., whether across Prince Albert, or across
Glenwood), there is a strict height limit of 35 feet. Monaco’s tower, at 15 storeys, would
be much higher than that.
[339] The Board has reviewed the provisions of the MPS, in the context of the
evidence relating to the particular project before it. The Board finds that, in its opinion,
nothing in the MPS (in the Board’s opinion) causes it to conclude that possible wind
effects on Lake Banook become irrelevant the moment one steps outside the 35-foot
height-restriction area.
[340] To the contrary, the Board considers it to be a reasonable interpretation of
the MPS that Council could have regard (in making a decision about rezoning, or
making a decision about a development agreement, for that matter) to such matters as
the height of Monaco’s proposed building, in the context of possible wind effects upon
the lake, even though Monaco’s property is outside the 35-foot restriction area.
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5.10.6.2 Traffic
[341] As part of its application, Monaco supplied HRM’s planning staff with traffic
information prepared for Monaco by Ken O’Brien, of Genivar Traffic and Transportation.
He asserted that:
…the added trips from the proposed development are not expected to have any significant [e]ffect on intersection performance.
[342] Mr. Dickey, as the responsible planner for HRM, was satisfied with the
traffic information supplied by Monaco. HRM Counsel, however, together with Counsel
for the Intervenors, directed some criticism toward it.
[343] As the Board will discuss below, it does see some of these criticisms as
meriting giving the traffic report documentation (there was more than one report)
somewhat less weight than that apparently accorded it by HRM staff.
[344] Of the various criticisms raised by Counsel for HRM, the one which the
Board saw as the most significant was the fact that Mr. O’Brien’s traffic projections
ignore the potential effect of the Twin Lakes project.
[345] It will be recalled that Twin Lakes is to be a relatively large building, with 12
storeys and 84 units. Access to it would be via Prince Albert Road, the same road upon
which Monaco’s tower is to be located. It can be reasonably expected that a significant
part of any traffic going to, or departing from, Twin Lakes, would flow along Prince
Albert Road, past the Monaco site at the intersection of Glenwood and Prince Albert.
[346] Twin Lakes was, of course, a project of which Monaco, and Mr. Maskine,
were acutely aware when they were preparing Monaco’s rezoning and development
agreement applications. Further, submissions and evidence on behalf of Monaco in the
Board’s proceeding referred numerous times to Twin Lakes.
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[347] Remarkably, however, the reason that Mr. O’Brien’s projections did not
take into account the Twin Lakes project is that, according to the evidence before the
Board, Monaco did not inform him of its existence.
[348] A second criticism by Counsel for HRM related to his assumption that
Prince Albert Road was a “major collector.” His predictions with respect to the traffic
impact of the Monaco project were based, in part, upon an assumed annual traffic
volume growth rate of 1%; in turn, the 1% figure was based on his assumption that
Prince Albert Road is a “major collector” street. For example, his report says:
…The 2010 volumes have been used with an annual traffic volume growth rate of 1.0%, which is considered typical of many major collector streets in HRM…
[349] The term “major collector” was used by Mr. Heseltine and Ms. Young in
describing Prince Albert Road, in both their oral and written evidence. For example,
they assert in their first report at least twice that Prince Albert Road is a “major
collector,” making this assertion in the context of interpreting the MPS.
[350] After a somewhat protracted cross examination by Counsel for HRM,
however, Ms. Young acknowledged that Prince Albert Road is not designated as a
“major collector,” in HRM’s planning documents – it is just a “collector.”
[351] The Board finds that the combined result of the evidence of Mr. O’Brien,
and of Ms. Young, is that a key underlying assumption (that Prince Albert Road is a
major collector, and that accordingly, a traffic volume growth rate of 1%, the figure
associated with such collectors, could be assumed), used by Mr. O’Brien in the
preparation of his traffic projections, lacks an adequate foundation.
[352] As a third point, Counsel for HRM noted that Mr. O’Brien’s firm did traffic
measurements on only one day, November 18, 2010.
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[353] The measurements were not only done on just one day, but just at two
separate periods during that day (being the presumed morning and afternoon peak
travel period, for a total of about four hours).
[354] Mr. O’Brien’s report is, thus, based upon two limited periods on just one
day.
[355] Among other things, it gives us no information about the nature of traffic
flows on that day at times other than the assumed peaks.
[356] That meant, as Counsel for HRM explored at some length on cross
examination, difficulties in making useful comparisons of some of the other data which
had been placed in evidence, and upon which Mr. O’Brien relied.
[357] For example, Genivar produced on September 30, 2011, a table of “traffic
generation projections.” No measurements, or other data, relating to the subject
property appear in this table. Instead, it is based upon assumed traffic generation rates
which appear in the professional literature. These trip generation rates, however, are
calculated in vehicle trips per day, not peak periods. The data Mr. O’Brien generated
related only to trips per hour during the two assumed peak periods, i.e., it did not show
estimated vehicle trips per day.
[358] As a fourth and final point, the Board will touch on one criticism by HRM’s
Counsel in relation to the traffic evidence, to which it has ultimately decided to give no
weight at all. Counsel for HRM, in the course of cross examination, cast some doubt on
the 1% figure itself, at least with respect to whether Mr. O’Brien had in the past
expressed a figure of 1%, or of 2%.
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[359] As the Board has already noted, Mr. O’Brien’s report refers to a figure of
1%. Counsel for HRM points out, however, that the minutes of the public information
meeting held at Alderney School on May 4, 2011, state that Mr. O’Brien told those
present that he expected traffic counts to increase by “…approximately 2% per year.”
[360] Minutes can, of course, be in error. However, the day after the meeting, a
member of the public (whose name was redacted) sent an email to Mr. Dickey which
refers to an “assumed 2% per year increase” as having been mentioned at the
information meeting.
[361] Further, on June 14th , five weeks after the meeting, Mr. Dickey himself
sent an email in which he said:
It has been determined that Prince Albert Road has ample capacity to handle traffic volume growth over the long term which is presumed to be 2% per year…
[362] Counsel for HRM combines her stated concerns with respect to accuracy
of the purported growth rate of 1% with concerns about the Twin Lakes project (a
concern which the Board does share, and which it has already discussed, above).
[363] The Board considers that the evidence pointed to by Counsel for HRM with
respect to Mr. O’Brien having referred to a 2% figure, rather than 1%, at the public
information meeting, does provide some basis for concluding that a 2% figure may
indeed have been used.
[364] The Board has, however, concluded that such a use of a figure of 2% is
irrelevant to the likely accuracy, or inaccuracy, of Mr. O’Brien’s report. The reason is
that – even if the Board were to accept that Mr. O’Brien did refer to a 2% figure at the
public information meeting – the meeting in question occurred on May 4, 2011. Mr.
O’Brien prepared his report several months prior to that meeting, on December 3, 2010.
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His report does contain the 1% figure – a figure which he confirmed verbally in the
course of his evidence. Even if he did misstate the growth rate as 2%, as opposed to
1%, at the public information meeting, the 2% figure was not used by him in developing
the conclusions which appear in his December 2010 report.
[365] Accordingly, the Board considers that – at most - the discrepancy pointed
to by Counsel for HRM suggests there is evidence that people at the public information
meeting may have been misinformed about the assumed growth rate that Mr. O’Brien
was actually using. The Board does not, however, see this – even if it were to assume
it to be a fact – to be in any way determinative of the outcome, and the Board accords
no weight to it.
5.10.6.3 Shadows
[366] As the Board has noted previously, Monaco retained Robert T. LeBlanc to
provide a shade study report to be included in Monaco’s application to HRM. In his
report of June 20, 2011, Mr. LeBlanc summarized his conclusions as follows:
The results of the shade study demonstrate fairly minimal impacts of shade along Prince Albert Road and the adjacent properties. The most heavily impacted areas are affected during the winter solstice, when residential properties along Lakeview Point Road will be impacted for less than an hour during the earliest hour of daylight, and the intersection of Prince Albert Road and Highway 7, which will be cast in shadow for approximately 4.5 hours during the middle of the day.
[367] Mr. Dickey accepted the LeBlanc report, and relied on it in his report to
Council of December 15th, which was discussed by Harbour East Community Council at
its meeting on January 17th. He described the matter of shadows being created by the
proposed building as:
…another measure by which compatibility can be measured, although HRM only considers this issue relative to potential for impacts on public lands and not on private property.
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[368] While Mr. Dickey was satisfied with the LeBlanc report, Counsel for HRM,
in the course of the present proceeding, directed various criticisms at it.
[369] Much, if not all, of the criticisms on this point made by Counsel for HRM in
her closing written submissions went essentially unrebutted in the lengthy reply
submissions filed on behalf of Monaco – although Counsel for Monaco did note,
correctly, that HRM and the Intervenors had questioned the shade study without
supplying expert evidence of their own.
[370] Of the points raised by Counsel for HRM, the Board will refer to only three
specifically.
[371] First, as the Board previously noted in the “Facts” section above, Mr.
LeBlanc produced two versions of his report. He sent a report to Mr. Maskine dated
June 15th, which Mr. Maskine sent to Mr. Dickey, identifying it as a “draft.” On June
20th, Mr. LeBlanc submitted a new version of his report, which makes no reference to
the June 15th version, and which adds a section entitled “Shade Potential.” The section
in question contains a comparison of potential versus actual sunshine for Halifax. It
notes that, in the winter, Halifax is, on average, overcast 75% of the time. Therefore,
says Mr. LeBlanc, there is only a 25% chance that there will be the sunlight necessary
for a building to even be able to cast a shadow.
[372] Counsel for HRM characterizes the addition of this section of Mr. LeBlanc’s
report as:
…an attempt to lessen the impact of the study results.
The Board, on the balance of probabilities, agrees.
[373] Mr. LeBlanc’s added section points to the fact that Halifax-Dartmouth tends
to have a relatively large amount of overcast weather. The Board interpreted the thrust
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of this part of Mr. LeBlanc’s evidence as being, in essence, that if one already has
relatively little sunshine in comparison to many other places, as is the case for Halifax,
the loss of some more won’t matter very much.
[374] Counsel for HRM cross examined Mr. LeBlanc on this point. In the course
of that examination, the Board saw Mr. LeBlanc as acknowledging that the reverse of
his argument could also be true – that if people live in an area with relatively little
sunshine, they might wish to protect what little they do have from the adverse effects of
shadows generated by a building.
[375] Second, it is not uncommon (at least in the Board’s experience) for shade
studies to include computer-generated video animations. Among other things, these
enable the observation of the continuously varying impact of shadows from a proposed
building, as these vary both by time of year and time of day. As Counsel for HRM
pointed out, however, the shade study in the present proceeding did not involve a
continuous video animation, but only “still” snapshots.
[376] It was Mr. LeBlanc’s opinion that this approach was adequate.
[377] The Board, however, concluded from the evidence that different and other
buildings and topography could be affected in different ways by shadows during the
period outside the shapshots.
[378] Third, Mr. LeBlanc, in doing his study, ignored the impact of surrounding
vegetation, which the report acknowledged can “…cause significant shade impacts.”
5.10.7 Population Densification; Opportunity Sites
[379] The Board now turns to two additional matters, population densification and
opportunity sites, concepts found principally in the RMPS.
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[380] The Board has chosen to deal with these topics here (subsequent to its
discussion of compatibility under DMPS Policy IP-1 (c)), rather than in the earlier portion
of “Analysis and Findings” which was focused principally upon the RMPS, as a matter of
convenience, and of clarity: many of the comments made by the Board in relation to IP-
1(c) (and, in particular, the matter of compatibility) may be dealt with more briefly at this
stage in the proceeding.
5.10.7.1 Population Growth in The Regional Centre: “Population Densification”
[381] The subject property is located within what the RMPS terms the “Regional
Centre”, which comprises all of the Peninsula of Halifax, and Dartmouth inside the
Circumferential Highway.
[382] One of the themes in the RMPS, which is referred to in the introduction to
Chapter 3, entitled “Settlement and Housing,” is the achievement of “a balanced
approach to growth across the Municipality.” One aspect of this policy is to increase
population growth in the Regional Centre. Referring to the Regional Centre, the RMPS
(written in 2006) says:
…approximately 25% of growth will be targeted to occur on the Halifax Peninsula and in downtown Dartmouth, inside the Circumferential Highway…
[383] This population growth “target” was referred to sometimes in the evidence
and submissions before the Board as “intensification,” and sometimes as “densification.”
The latter term, the Board notes, should not be confused with “density,” which
commonly relates to the number of units per square foot of a lot, or the number of units
in a building – although there can be a relationship between the two concepts.
[384] For consistency, and, hopefully, greater clarity, the Board has used in this
decision the term “population densification” in place of “intensification” or “densification.”
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[385] Part of the rationale for population densification is the ability to serve more
people with existing infrastructure (for example, water, sewer, transit, etc.).
[386] Population densification may be seen from this perspective, and perhaps
from others, as being at least implicitly a theme of the DMPS as well, even though it
was originally written in 1978. For example, the DMPS provides as follows:
DMPS Policy G-4 It shall be the intention of City Council to investigate the possibilities and options for redevelopment of areas throughout the City to make better utilization of existing services.
[387] Population densification was repeatedly, and extensively, explored in
evidence and submissions.
[388] Mr. Dickey, for example, took the view that the RMPS:
…strongly supports intensification…
[389] The Board concluded that Mr. Heseltine has a particular affinity for this
subject. His firm, STANTEC, along with Gardner Pinfold Consulting Economists, has,
pursuant to a contract they have with HRM, been looking at alternative population
“growth scenarios” in HRM, and the associated costs and benefits of those scenarios.
A principal focus of the study relates to population densification.
[390] Mr. Heseltine has concluded from the data which he and his associates
have gathered that HRM has not (in the years since 2006) achieved the target stated in
the RMPS of having about 25% of the growth occurring in the Regional Centre. At the
time the RMPS was adopted, significantly less than 25% of population growth was
occurring in the Regional Centre.
[391] Even before Mr. Heseltine began his work on the consulting contract, HRM
planning staff had concluded that the population changes in HRM had fallen short of the
target.
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[392] Mr. Heseltine, however, has concluded from his research that things are
even worse with respect to achieving the target than HRM staff had surmised.
[393] For example, the Dartmouth portion of the Regional Centre actually lost
population between 2006 (when the RMPS was adopted) and 2011.
[394] Mr. Heseltine is persuaded of the importance of increasing the proportion
of the population in HRM which lives in the Regional Centre. His intense interest in
population densification may be inferred from, among other things, the significant
proportion which the topic takes up in both of the experts’ reports filed with the Board of
which he was an author.
[395] Of the 26 pages in the first Heseltine and Young report (March 29, 2012)
about 10 are focused upon, or related to, this single topic.
[396] The second Heseltine and Young report (prepared May 2, 2012, and stated
to be in reply to Mr. Lloyd’s single report) is 17 pages long, of which, in the Board’s
estimation, more than half is focused upon population densification, using both
explanatory text and extensive tables.
[397] In discussing population densification, the May 2nd report contains wide-
ranging observations, on a variety of diverse topics. For example, it explores changes
in the average number of persons occupying residential units; compares and contrasts
data for HRM with municipalities elsewhere; and offers opinions on such topics as why
population growth has been slowing. At one point, the report expresses the opinion
that:
The critical concern today is that whether citizens are over housed…larger homes consume more energy and create more pollution and greenhouse gases. They also occupy larger properties and create sprawl.
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[398] In the view of the Board, the interest of Mr. Heseltine (supported by Ms.
Young) in population densification was also reflected repeatedly in their assertions as to
the importance of population densification in relation to the matter presently before the
Board.
[399] At times, their emphasis on population densification was combined with the
emphasis which Mr. Heseltine and Ms. Young also placed upon the concept of
“opportunity sites” (a concept the Board discusses further, later in this decision).
[400] The Board perceives Mr. Heseltine and Ms. Young, as, at least sometimes
– impliedly, and maybe even explicitly – approaching the portrayal of population
densification as an overriding goal or target of the RMPS and DMPS.
[401] For example, the following written submission by Counsel for Monaco
accurately reflects the Board’s perception of how Mr. Heseltine and Ms. Young saw the
role of population densification in the MPS. He says that Council’s decision to refuse
Monaco’s application:
…serves to defeat the overall goal of the RMPS and the DSPS [DMPS] to densify the Regional Centre…[Emphasis added]
[402] As a further example, in their March report, Mr. Heseltine and Ms. Young,
in referring to the Monaco Property, say:
…it is hard to imagine property better situated to support the density needed to create the liveable transit-oriented environment within walking distance of most daily needs as described in the Regional Plan. [Emphasis added]
Referring then to both population densification and to “opportunity sites,” they assert
that Council had an obligation in relation to the proposed rezoning of Monaco’s
property:
The rezoning request thus should have been viewed as an opportunity that Council was obligated to encourage. [Emphasis added] …
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[403] The assertion that Council had an “obligation” related to population
densification, and to Monaco’s proposal, is reflected again in their May report. In it, they
suggest that it was “essential” for Council to take advantage of the opportunity which the
Monaco proposal presented to achieve the “clearly stated goals” of population
densification:
To achieve the clearly stated goals of both the RMPS and DMPS to add dwelling units and increase population in what are now the recognized core areas of HRM, it is essential to consider and take advantage of the opportunities inherent in commercial sites at the edges of residential neighbourhoods such as 307 Prince Albert Road. These properties are clearly the best opportunities to add density in areas that are otherwise depopulating. [Emphasis added]
[404] At times, the Board was left somewhat uncertain as to just how far the
intended thrust of this aspect of the evidence of Mr. Heseltine and Ms. Young was
intended to go.
[405] They are asserting – and the Board has no reason to doubt them on the
evidence before it – that HRM is not meeting its population densification target.
[406] The Board notes first, however, that the reason for this failure, on the
evidence before the Board, is not clear. The phenomenon may be driven by a number
of factors, at least some of which may have little to do with decisions made by Municipal
Council (whether the present one or others) with respect to whether a particular
proposed development may or may not proceed.
[407] Is one to infer that Mr. Heseltine and Ms. Young are asserting that HRM’s
failure to meet its target in the RMPS means that Council had to approve this particular
application by Monaco? On balance, given other aspects of the evidence of Mr.
Heseltine and Ms. Young, the Board thinks that – whatever reasonable inferences might
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be drawn from their language as quoted above by the Board – Mr. Heseltine and Ms.
Young did take a broader view of the MPS.
[408] Nevertheless, if indeed they were proposing that population densification
“obligated” Council, or made it “essential” for Council, to approve Monaco’s proposal,
the Board sees little basis for this idea in the MPS.
[409] That being said, the Board considers that no reasonable reader of the MPS
could remain oblivious to population densification being one of its “themes,” or planning
considerations. Indeed, on the evidence before the Board, Mr. Dickey pointed to
population densification in his recommendations to Council respecting the Monaco
application; further, Council had, on its own initiative, contemplated population
densification (just before it was officially adopted) in the discussions which led to its
approval of Twin Lakes.
[410] No MPS has just a single theme, however – be it population densification,
or anything else. Instead, the policies found in municipal planning strategies address,
as the Court of Appeal put it in Heritage Trust 1994:
…a multitude of planning considerations…
[411] Having read the provisions of the RMPS and the DMPS, and taken into
account the factual circumstances of the present proceeding, the Board finds that there
are certainly other themes within the MPS, including, in particular, compatibility (in its
various aspects), which are also relevant – in addition to population densification – in
determination of this appeal.
5.10.7.2 Opportunity Sites
[412] The concept of “opportunity sites,” found in the RMPS, was the subject of
extensive dispute in the proceeding.
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[413] The Board will here explore the concept relatively briefly (at least in
proportion to the large amount of time and effort, both in written and oral evidence and
submissions, which surrounded the topic in these proceedings).
[414] The RMPS expressly identifies a number of “opportunity sites,” including
some in the Dartmouth sector of the Regional Centre (being the area inside the
Circumferential Highway, which includes the subject property). Neither the subject
property, nor any properties near it, appear in the list of opportunity sites within the
Regional Centre which appears at schedule DM 4, pg 157. Further, they do not appear
on Map 6 of the RMPS which is entitled “Opportunity Sites within Regional Centre.”
[415] The term “opportunity site,” according to the RMPS, is one which may be
applied to vacant or underused sites in HRM. Medium or high-density uses may be
permitted on opportunity sites. As the Board will discuss further in this section, it does
not see the references in the RMPS to “opportunity sites” as providing a clear definition,
or criteria, as to what kinds of properties are opportunity sites, and which ones not.
[416] Mr. Heseltine and Ms. Young claim that the subject property is an
“opportunity site” or, at a minimum, the equivalent of one. Their evidence suggests that
a practical consequence of this status is that the subject property is entitled to the
development of medium to high density uses.
[417] Mr. Lloyd, and Counsel for HRM, assert just as firmly that it is not an
opportunity site, but is instead in an established neighbourhood in which only low to
medium density residential uses are possible.
[418] Counsel for Monaco suggested that “the Board must decide” between the
two opposing points of view. While the Board has found the opinions of both sets of
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experts to be helpful in certain aspects, the Board is not inclined to adopt the opinion of
either opposing group as being necessarily definitive.
[419] The RMPS contemplates a special planning process for opportunity sites,
known as the “opportunity sites functional plan.” The RMPS contains nine chapters.
Chapter 3, which is entitled, “Settlement and Housing,” contains nine separate sections,
one of which, Section 3.8, is entitled, “Functional Plans.” It contains references to two
different types of functional plans, one being in relation to affordable housing, and the
other in relation to opportunity sites.
[420] The status of functional plans is referred to in Chapter 1 of the RMPS
(entitled “Introduction”), in s. 1.7 entitled “Municipal Planning Document Structure.” It
says:
1.7 MUNICIPAL PLANNING DOCUMENT STRUCTURE … (4) Functional Plans The purpose of a functional plan is to guide the management of the Municipality as defined in the Municipal Government Act. They do not represent land use policy but rather HRM’s intent to create detailed management guides for setting budgets for programs, services and facilities consistent with the implementation of this Plan. Functional Plans will also guide HRM in the ongoing management of strategic initiatives, partnerships and demonstration projects useful to seeing the full potential of this Plan realized over time. [Emphasis added]
[421] On cross examination by Counsel for HRM, Ms. Brown, Ms. Young
acknowledged that functional plans are not land-use policy.
[422] Section 3.8.1 of the “Settlement and Housing” chapter, which is entitled
“Opportunity Sites Functional Plan” says, in its opening sentence:
Within the Regional Centre, there are a number of vacant or underused sites
[423] RMPS Policy S-39, which appears at the end of s. 3.8.1, says:
S-39 HRM shall prepare an Opportunity Sites Functional Plan to assist the Community Visioning exercise and the preparation of secondary planning strategies described in Policy S-38 and to facilitate the development or redevelopment of opportunity sites within the Regional Centre and other locations.
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The RMPS also refers to:
…creating and maintaining a comprehensive database of opportunity sites. [424] The RMPS points to the identification and development of opportunity sites
through new secondary planning strategies. Very broadly, the process contemplated by
the RMPS includes community “visioning,” with the possible subsequent adoption of
new secondary planning strategies (such as the DMPS) by Council which reflect that
visioning. These new secondary planning strategies may identify particular opportunity
sites, and point to how they are to be developed.
[425] While it seems, from the limited evidence before the Board, that some
visioning exercises may have occurred, HRM has not moved on to the creation of new
secondary planning strategies, including the identification of any new opportunity sites.
[426] While Mr. Dickey did not expressly address opportunity sites in his report,
he did in his oral testimony state his views with respect to opportunity sites on the
subject property, when he was questioned about it by Counsel for the various parties.
[427] Mr. Dickey acknowledged that the intent of the RMPS was that a functional
plan for opportunity sites was supposed to have been developed, but that this had not
happened. Saying (on cross examination) that this was because of a lack of resources,
he suggested that the delay has meant that HRM’s planning staff now see themselves
as being required to improvise their approach to opportunity sites:
…we’re finding ourselves having to, you know, take some interpretations out of the Regional Plan because frankly we cannot afford to wait five, ten, 15 years to get some of these things done.
[428] The position of HRM counsel (based, in part, upon the evidence of Mr.
Lloyd) is succinctly stated in a written submission by its Counsel:
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It is submitted that sites must be identified as “opportunity sites” by Council through the Community Visioning Exercise and Secondary Planning strategy process before they can be considered to be “opportunity sites.” It is not for staff nor consultant planners to decide on their own that a particular site within the Regional Centre ought to be an “opportunity site” and therefore ought to attract a mix of medium to high density residential uses. … While the proposed site certainly exists within the "Regional Centre" it is not an "opportunity site.” Instead, it is submitted that the proposed site is in an "established neighbourhood" and therefore pursuant to Table 3.1 of the RMPS, the land use shall be "low to medium density residential uses" on this site. This is consistent with the RMPS statement at page 45 and policy S-11…
[429] As the Board has already noted, the subject property is not identified as an
opportunity site in the RMPS. Nevertheless, Monaco asserts that the subject property
either:
• is an opportunity site; or
• should be considered to be at least equivalent to one.
[430] With respect to the first position (that the subject property is an opportunity
site), Monaco appeared sometimes to be asserting that the property not only meets the
criteria of an opportunity site, but is one within the full meaning of the RMPS.
[431] As an illustration of this position, the Board refers first to written
submissions to the Board made on behalf of Monaco, which say, in part:
…the Prince Albert site is an “opportunity site” within the meaning of the RMPS. [432] In similar vein, Mr. Heseltine and Ms. Young, in their second planning
report, say that:
The site also meets the RMPS definition of an opportunity site. [433] In taking the first position (i.e., that the subject property is indeed an
opportunity site) Monaco was, in the opinion of the Board, in effect saying the process
of visioning, etc. (including its various elements of public participation, as outlined in the
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RMPS) need not be done for a property to be an “opportunity site” within the full
meaning of the term, as used in the RMPS.
[434] In taking their second position, Monaco was, at a minimum, saying that the
property meets what they assert to be the “criteria” for an opportunity site (absent, of
course the visioning, etc., process) and that it accordingly deserves to be treated as
one.
[435] Mr. Dickey at least at certain points in his evidence, did refer to the subject
property as an opportunity site. In explaining his point of view, however, he appeared to
be suggesting that the references to “opportunity sites” in the RMPS were more in the
nature of a useful guide for staff, and for Council, in making planning decisions. It:
…allows a practical interpretation by staff. It’s one criterion or site evaluation criteria that can be used in the staff report.
[436] On cross examination by Counsel for HRM, Mr. Heseltine and Ms. Young
said that RMPS s. 3.8.1 sets out, in their view, the “criteria” for opportunity sites. They
refer to a number of characteristics, including:
• the subject property is an underused site;
• the subject property is adjacent to “other vacant lands”;
• the subject property is located on a “major transportation route;”
• it has existing municipal services with excess capacity;
• the street is able to support the increased traffic associated with the proposed development.
[437] Near the beginning of this part, the Board referred to its view that RMPS s.
3.8.1 does not contain anything like a precise definition of the term “opportunity site.”
For example, RMPS s. 3.8.1 does not contain a list of criteria, such as those found in
DMPS Policy IP-1(c), or RMPS Policy IM-15.
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[438] Even if it did, the Board has previously noted its view that, even in the latter
two provisions, the criteria stated often have a strongly subjective component.
[439] As but one example of what the Board sees as the somewhat amorphous
concept of opportunity sites, RMPS s. 3.8.1 refers to already-identified opportunity sites
and notes that some are located along major transportation corridors, and outside
established low-density neighbourhoods. It also, however, notes that some opportunity
sites are located “in established neighbourhoods.”
[440] In short, opportunity sites can be outside established neighbourhoods – but
they can also be inside them.
Conclusion re Opportunity Sites [441] The Board considers that, even taking the minimum position advanced on
behalf of Monaco, its experts and Counsel were asserting that the subject property
demonstrably meets all of the so-called criteria for opportunity sites. And they saw this
as entitling the property to have medium to high density development on it.
[442] The Board notes here, as an aside, that Monaco’s development, if built,
would indeed be high density: in fact, it would exceed, by a significant margin, the
highest density allowable under the R3 and R-4 zoning by-law which controlled
apartment building construction in Dartmouth until the development agreement
requirement was adopted in 1991 (as is discussed in more detail in the “Development
Agreement” part, below).
[443] The Board further inferred from some of Monaco’s evidence and
submissions that the purported status of the subject property as an opportunity site
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meant (from their point of view) that Council’s decision not to approve Monaco’s
application failed to reasonably carry out the intent of the MPS.
[444] With respect, the Board does not agree. The Board’s reasons for this
include its view that Monaco’s so-called “criteria” for an opportunity site are not nearly
as clear cut as Monaco suggests. In the view of the Board, while various characteristics
are referred to in RMPS s. 3.8.1, these in some ways point to the possibility of
opportunity sites being in a wide range of quite diverse settings.
[445] Further – just as with DMPS Policy IP-1(c) (discussed above) and DMPS
Policy IP-5 (discussed below) – the Board considers that the meaning of some of the
terms used in the MPS in relation to opportunity sites is subjective. The Board
considers that – reading the MPS as a whole – deciding whether something is to be an
opportunity site or not will often involve the balancing of interests (something Council
should, or may be required to, do, under an MPS) such as – looking at the relevant
circumstances of the present application – the presence of abutting residential areas,
the presence of Lake Banook with its active boating competitions, traffic, population
densification, etc.
[446] Further, the Board considers that the processes (related to “visioning,” etc.)
described in RMPS s. 3.8.1 (and related provisions) contemplate that members of the
public are to be given the opportunity to express their opinion with respect to the
identification of opportunity sites. To put it another way, the Board sees RMPS s. 3.8.1
as not simply mentioning some characteristics which opportunity sites might have, but
also stating steps – in which public involvement must occur – to be taken in the
identification of such sites.
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[447] The Board concludes the concept of opportunity sites does not create a
requirement – in the context of the MPS, and the circumstances of the present
proceeding – that Council approve the Monaco project. More specifically, the Board
considers that the fact that Council did not, expressly or impliedly, identify the subject
property as an opportunity site is not something which can reasonably be seen as a
failure to carry out the intent of the MPS.
[448] The Board does, however, conclude that the matters referred to in RMPS
s. 3.8.1 do point, at least generally, to characteristics of opportunity sites to which
Council might have regard in deciding whether it should grant a rezoning – or indeed
whether it should approve a development agreement.
5.10.8 Conclusion with Respect to Council’s Refusal to Rezone
[449] The burden of proof in this proceeding rested on Monaco to establish, on
the balance of probabilities, that Council’s decision to refuse Monaco’s application to
rezone the subject property fails to reasonably carry out the intent of the Municipal
Planning Strategy. In the judgment of the Board, Monaco failed to meet that burden.
[450] The Halifax Charter, like the Municipal Government Act before it,
specifically identifies municipal council as the primary authority for planning in HRM.
[451] In keeping with this authority, the Halifax Charter limits the grounds for an
appeal to the Board of a decision by Council in relation to zoning applications. In the
context of the present proceeding, the Act says that the Board must not interfere with
Council’s decision to refuse the rezonings requested by Monaco, unless the Board
determines that Council’s decision does not reasonably carry out the intent of the MPS.
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[452] If Monaco can show, on the balance of probabilities, that Council’s decision
does not reasonably carry out the intent of the MPS, the Board must reverse Council’s
decision. If, however, the Appellant fails to meet this standard of proof, it is the Board’s
duty to defer to Council’s decision.
[453] As the Board has already discussed above, it sees a variety of different
planning considerations in the MPS which relate, to one degree or another, to Monaco’s
application to have this property rezoned.
[454] This abundance of themes in an MPS is not unusual; to the contrary, all
municipal planning strategies, to one degree or another, exhibit that characteristic, as
the Court of Appeal has on a number of occasions, pointed out. As the Board has
noted previously, Heritage Trust 1994 states:
Planning policies address a multitude of planning considerations…
The planning considerations apparent in the present proceeding include, among others,
compatibility, population densification, and opportunity sites.
[455] The RMPS, in its references to population densification, sets targets for
increasing the population in the most urban area of HRM, and the subject property lies
in that area. Monaco points out that HRM has not achieved its target in the six years
since the target was set. Monaco also points to RMPS provisions relating to so called
“opportunity sites,” in which, among other things, medium to high-rise apartment
buildings may be built. While these themes are certainly of importance, all parties
likewise agreed that other provisions in the MPS are also relevant.
[456] In particular, MPS provisions relating to compatibility are of importance in
this particular proceeding.
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[457] DMPS Policy IP-1(c) contains policy considerations which the Board has
explored in detail above, and which the Board sees as relating, in a variety of ways, to
aspects of the idea of compatibility.
[458] The MPS identifies a number of aspects which can be included in having
regard to compatibility. The Board sees not just DMPS Policy IP-1(c), but other
provisions within the MPS as well, as suggesting that compatibility can include such
things as use, bulk, and scale of a proposed building, when seen in the context of, for
example, existing buildings in the area of the proposed development.
[459] In the present proceeding, the area around the proposed development
includes – as Monaco emphasizes – some commercial activity. Moreover, the subject
property fronts, on one side at least, on Prince Albert Road which – while not a “major
collector” as claimed by the experts testifying on behalf of Monaco – is nonetheless a
street of some significance. Monaco suggests that location of a high-rise (and high-
density) building on the subject property, on such a street, will help further HRM’s
population densification goals.
[460] However, it is also true that the site for this proposed 15-storey
development is only a few hundred feet from the shore of Lake Banook, an
internationally known venue for competition in racing kayaks and canoes. More than
once in the past, concerns about the height of buildings near Lake Banook have been
raised, and have led to either a proposed project being defeated at Council, or simply
not advanced.
[461] Moreover, only a few years ago, Council imposed a 35-foot height
restriction around the perimeter of the Lake. The subject property stands outside that
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height restriction, but only just – the subject property is on a corner, and the land
opposite it (on both streets) is inside the height-restriction area.
[462] One side of the subject property, then, abuts a 35-foot height-restriction
area; the opposite side of the subject property abuts an extensive already-existing low-
rise residential neighbourhood of one to two storeys, on Glenwood Avenue. Not only
does that development touch the subject property, but part of it is incorporated in the
subject property, i.e., the subject property includes a lot which formerly was a residential
lot.
[463] Further, across Prince Albert Road from the subject property, and inside
the height-restriction area, lies additional low-rise residential development.
[464] While Monaco points to high-rise buildings existing in Dartmouth, the Board
has found that none of these are in the area of Prince Albert Road in which Monaco
proposes to build its tower. The highest buildings anywhere on Prince Albert Road, or
on the side streets leading up from it, are five storeys in height and the vast majority are
much lower than that.
[465] The decisions of the Court of Appeal with respect to planning matters have
repeatedly emphasized the point that not only do municipal planning strategies contain
a multitude of planning considerations, but some of these will inevitably be “in conflict”:
Heritage Trust 1994.
[466] Accordingly, the planning decisions which must be made by a municipal
council – to approve a development, or to refuse it – not infrequently:
…involve compromises and choices between competing policies.
[Heritage Trust 1994]
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[467] Where decisions involving such compromises and choices must be made,
the Court has stated that it is:
…the elected and democratically accountable council [which] may be expected to make a value judgment.
[Archibald, para 24]
The task of making these value judgments becomes particularly relevant when the MPS
involves, as the present one does, the presence of terms which (quite properly) do not
have a single, fixed, precise meaning, but instead can be seen as having a subjective,
or relative, component.
[468] As the Board has explored in some detail earlier in this decision, it sees the
provisions in the MPS which are of particular relevance to this proceeding as containing
an abundance of such subjective terms, e.g., “compatibility,” “neighbourhood,” “area,”
“bulk,” “scale.”
[469] In the view of the Board, the Court of Appeal’s direction is that the Board
should, in such matters:
…defer to the Council’s compromises of conflicting intentions in the MPS…
[Archibald, para 24]
[470] The Court cautions, however, that such deference to Council’s task of
making:
…difficult choices between conflicting policies is not a license for Council to make ad hoc decisions unguided by principle.
[Archibald, para 24]
Thus, deference is to be shown to Council’s decisions, but only if those decisions can
be seen as reasonably carrying out the intent of the MPS. As the Board has already
previously noted, the Board sees Council’s decision in this instance as being entirely
consistent.
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5.11 Issues 2 and 3: Development Agreement 5.11.1 Issue 2: Is the Appeal Before the Board of the Re-Zoning
Application Only, or of the Re-Zoning Application and the Development Agreement Application? For reasons explained in the decision, the Board has decided to assume, without finding, that it has jurisdiction to hear the appeal of the development agreement application (Issue 3), in addition to the rezoning application (Issue 1).
[471] Monaco says that its appeal is of both the refusal of the applications to
rezone, and of the application for a development agreement. HRM says the appeal can
only be of the rezonings.
[472] Both for the purposes of this decision, and for the purposes of any appeal,
the Board will here summarize its view of what it sees as the relevant facts surrounding
this issue.
[473] Up until January 17th, HRM staff repeatedly referred, often in some detail,
to a process which would involve the completion of two separate steps. In the first step,
the rezoning of the two lots would be approved by Council, and go through any
subsequent appeal process. Only once this first step (Step 1) was complete would the
development agreement (Step 2) be dealt with by Council.
[474] As an example of such statements by HRM staff, on May 24, 2011 (almost
eight months before Council’s January 17th meeting), Mr. Dickey described Monaco’s
application this way:
The development agreement cannot be approved, however, unless Council first approves the rezoning [from C-2 to R-4] AND if there are no appeals of the rezoning. If the R-4 Zone becomes effective, then Council would make a decision on the development agreement request. [Capitalized emphasis in original]
[475] Likewise, in his December 15th staff report to Council, Mr. Dickey describes
the same two-step process.
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[476] This was not a new process devised for the Monaco application, but one
which has, it seems, been used by HRM for 15 years.
[477] The Board concludes that the approach taken by HRM staff arose from the
view that Council cannot legally approve a development agreement (Step 2) until the
zoning needed for such an agreement is in place, and is no longer subject to an appeal
(Step 1).
[478] In keeping with this, it was staff’s intention that the rezoning part of
Monaco’s application would first have to go through Council’s process and be approved.
This was Step 1.
[479] During Step 1, however, full information about the development agreement
(Step 2) would also be supplied, and full discussion of it would occur. It would be
discussed by Council, and by members of the public in the course of a public hearing
relating to the rezonings.
[480] For greater certainty, the Board finds that it was the intent of HRM’s
planning staff that the public hearing at Step 1 would relate not just to the rezonings, but
to the development agreement in Step 2.
[481] In Step 1, however, while Council would discuss both the rezoning and
development agreement questions, it would decide only the rezoning question.
[482] If Council approved the rezoning, the development agreement application
would be brought back to Council after the appeal period had lapsed (or, if an appeal
had occurred, after any appeal had been dismissed). The application for the
development agreement would then be dealt with, but in a severely truncated process,
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in which review of the development agreement would involve only Council: there would
not be another public hearing.
[483] Further, at this final stage, HRM would not advertise the fact that Council
was about to consider the development agreement, and to decide whether to approve it
(although if Council did approve it, that decision would be advertised, so as to give
notice for purposes of appeal).
[484] Council’s decision to approve the development agreement, then, would not
occur until the end of Step 2. The Board concluded from the evidence, however, there
was a strong assumption that if Step 1 approval (the rezoning) occurred, Step 2
approval (the development agreement) would automatically occur, unless a successful
appeal of the rezoning intervened.
[485] Among other things, the Board sees the inference that Council’s approval
at Step 2 was expected to be automatic - almost a mere formality - as being consistent
with a hypothetical timeline for the processing of Monaco’s application, which appears in
an E-mail from Mr. Dickey. Mr. Dickey says that the:
…rezoning has to be effective before DA [the development agreement] can be formally approved. [Emphasis added]
[486] Up until January 17th, then, HRM’s statements to Monaco and others about
the process clearly and consistently described a process which involved two separate
steps.
[487] On January 17th, 2012, however, when Council defeated the motion to give
first reading to Monaco’s application, the words of the motion referred not just to the
rezoning application (Step 1), but to the development agreement application (Step 2) as
well:
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MOVED by Councillor Fisher, seconded by Councillor Karsten, that Harbour East Community Council give Notice of Motion to consider both the proposed rezonings and development agreement as set out in Map 3 and Attachment A of the December 15, 2011 report, and schedule a Public Hearing.
[488] On January 19th, the Legislative Assistant for Harbour East Community
Council wrote a letter to Monaco. In it, she states the complete Motion quoted in the
previous paragraph, and then goes on to say that “a decision of Council” can be
appealed to the Board.
[489] Monaco says this was a rejection of both the rezoning and the
development agreement application; Counsel for HRM says it was just a rejection of the
rezoning application.
[490] Counsel made extensive submissions (written and oral) to the Board on
this subject, at more than one stage in the proceedings.
[491] From Monaco’s perspective, Council’s decision – in the very language
used in the Motion on January 17th, and in the letter from the legislative assistant on
January 19th - was an explicit refusal of not just the rezoning, but the development
agreement. The Motion itself says it was:
…to consider both the proposed rezonings and development agreement.
Thus, says Monaco (as the Board summarizes its argument):
• the Motion, in its literal words, included both the rezonings and development
agreement;
• Council refused to give first reading to the Motion;
• therefore Council refused not just the rezonings, but the development agreement
as well;
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• therefore, the rezonings and the development agreement, being decisions by
Council, are properly the subject of this appeal,
• therefore, the Board would have had jurisdiction (if it were to have agreed with
Monaco’s arguments on the merits, with respect to both the rezonings and
development agreement) to, at the conclusion of this proceeding, order both the
rezonings and the approval of the development agreement.
[492] In reply, Counsel for HRM says that this appeal can only relate to the
refusal of the rezonings.
[493] One of her arguments relates to an assertion that a “deemed refusal”
occurred. In essence, HRM Counsel asserted that s. 225(6) of the Halifax Charter
applies. It states:
Where the Council has not, within one hundred and twenty days after receipt of a completed application to amend a land-use by-law referred to in subsection (1), commenced this procedure required for amending the land-use by-law by publishing the required notice of public hearing, the application is deemed to have been refused.
[494] While the Board has reflected on this argument at some length, it does not
find it helpful, and will not explore it further in this decision.
[495] Counsel for the Appellant asserts, and the Board agrees, that what was
done here by HRM was not a deemed refusal, but an actual one.
[496] The Board sees HRM’s principal position to be, in essence, that – whatever
the literal words of HRM’s own motion and letter – Council’s refusal could only have
been of the rezonings, and not of the development agreement, and therefore must have
been only of the rezonings.
[497] In support of this, HRM points to its staff having repeatedly said that the
zoning approval decision would be done first.
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[498] Counsel for HRM also points to, and in essence agrees with, the view of
the legislation put forward by its staff, which is that a decision on the development
agreement could not legally be made until a decision to permit the rezoning had been
made.
[499] The Board sees a principal argument in favour of HRM’s position as being
simply this: if a decision on the development agreement could not legally be made until
the decision on the rezoning was complete, it follows that the “decision” with respect to
the development agreement was no decision at all. Accordingly, it would not properly
be subject to appeal, and the Board should dismiss any appeal in relation to it.
[500] The decision by the Nova Scotia Court of Appeal in Halifax County v.
Maskine, [1992], NSJ No. 292, was referred to briefly in submissions. In the view of the
Board, Maskine, and the interpretation which the Board has repeatedly placed upon it,
is of relevance to the present issue. As a matter of interest, the Board notes that
Maskine, decided in 1992, involves the same developer, Tony Maskine, who is the
principal of Monaco.
[501] For many years, the Board has interpreted Maskine as meaning, in
essence, that the Board (in appeals such as the present one) lacks any jurisdiction with
respect to how Council has conducted itself.
[502] More particularly, the Board has – under, successively, the Planning Act,
the Municipal Government Act, and now the Halifax Charter – interpreted Maskine as
saying that the Board has no jurisdiction to reverse a decision by a municipal council on
the ground that the council in some way misconducted itself. For example, such alleged
misconduct might relate to procedural fairness, or some other alleged breach of the
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common law or legislation. Thus, in Midtown, the Board remarked that it had defined,
and would continue to define, its task:
...as being solely that of determining whether or not the approval, or refusal to approve, by a council is one which can be seen as reasonably consistent with the intent of the M.P.S., or not. How council got to that decision ‑ e.g., whether by an allegedly bad procedure or a good one, or by an allegedly bad thought process, or a good one ‑ is a matter which the Board (applying its interpretation of Maskine) has repeatedly stated to be irrelevant. The Board has regarded such alleged errors, and the granting of a remedy, if any, to be a matter solely within the jurisdiction of the Nova Scotia Supreme Court, and lying outside the jurisdiction of the Board.
[Midtown, para 129]
[503] Under this generally-accepted interpretation of Maskine it matters not
whether Council legally had the authority to make any decision in relation to the
development agreement until after it had dealt with the zoning application. The only
thing that matters is whether Council’s refusal to approve the development agreement
fails to reasonably carry out the intent of the MPS.
[504] In referring to this interpretation as “generally accepted”, the Board notes,
as an aside, that Counsel for HRM themselves have repeatedly argued that this
interpretation is correct.
[505] Some other parties in past proceedings, however, have suggested more
than once that the Board’s interpretation of Maskine may be too broad. For example, in
Heritage Trust of Nova Scotia (Re), 2007 NSUARB 122 (“Twin Towers”), Howard
Epstein, MLA, argued that the Board has “over-read” Maskine, and that the Board has
historically taken “…an excessively modest approach…” to interpreting its power.
[506] In the view of the Board, his arguments can be interpreted as meaning, in
effect, that the Board could decide it had no jurisdiction to hear an appeal of a decision
by a municipal council, if it concluded that that the council’s decision was one for which
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legislative authority did not exist, i.e., the council itself did not have jurisdiction to make
the decision.
[507] The Board considers that, applying this argument to the present
circumstances, HRM could argue that the Board could find the development agreement
issue to not be properly the subject of an appeal before it. The justification for such a
decision (according to Mr. Epstein’s argument at least) would be that Council had no
authority to make a decision when it did. So if it wasn’t a decision, it couldn’t be
appealed.
[508] In Twin Towers, the Board rejected that argument.
[509] In this discussion of Issue 2, the Board has attempted to canvass the facts
relevant to this issue as thoroughly as possible, and to summarize some of the
applicable legal arguments.
[510] In doing so, however, the Board has been conscious of the fact that its
decision on Issue 1 (with respect to Monaco’s appeal of Council’s refusal to rezone)
renders any determination by it of Issues 2 and 3 unnecessary, unless the Board’s
decision with respect to Issue 1 is successfully appealed. The Board wishes to
minimize the risk that a determination of Issue 2 by it for the limited purposes of this
proceeding might inadvertently create an impediment to future decision making by a
Board in an unrelated proceeding.
[511] Accordingly, the Board will, with respect to Issue 2, simply assume, without
finding, that it has jurisdiction under the Maskine doctrine to hear the development
agreement appeal in the circumstances of the present proceeding.
[512] The Board now turns to Issue 3:
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5.11.2 Issue 3: Has the Appellant shown on the balance of probabilities, that Harbour East Community Council’s decision to refuse approval of Monaco’s development agreement fails to reasonably carry out the intent of the Municipal Planning Strategy? For reasons discussed in this decision, the Board finds the answer to this question to be “no.” The Board accordingly dismisses the appeal with respect to the development agreement.
[513] Monaco, on the one side, and HRM and the Intervenors on the other,
disputed – through evidence and submissions – this issue with a vigor at least equal to
that which they had brought to the matter of the rezoning.
5.11.2.1 Provisions in the RMPS and DMPS Dealing with Development Agreements
[514] Under the Halifax Charter (as under the Municipal Government Act), the
test to be applied by the Board in relation to a Council decision in relation to a
development agreement is the same as that which applies to Council decisions in
relation to rezoning, i.e., whether or not it can be shown that a decision of Council fails
to reasonably carry out the intent of the MPS.
[515] The evidence before the Board (including that from all four planners who
gave evidence, three for Monaco and one for HRM and the Intervenors) suggests that
one of the key provisions with respect to development agreements is DMPS Policy IP-5.
This, it will be recalled, is the policy which, in 1991, ended as of right apartment building
developments in Dartmouth, requiring that they now be done by development
agreement.
[516] The introduction to DMPS Policy IP-5 refers to concerns having “recently”
(i.e., in 1991) been expressed about:
…the exterior design, density, concentration, site treatment, massing and traffic issues…
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The introduction also notes that, in using the development agreement process:
…public involvement in the evaluation of the proposed development…
would also be permitted.
[517] Policy IP-5 requires, as is usual in such MPS provisions, detailed drawings
and other documentation of various types. It then goes on to say that, in considering
the approval of a development agreement, Council:
Policy IP-5 …shall consider the following criteria: (a) adequacy of the exterior design, height, bulk and scale of the new apartment development with respect to its compatibility with the existing neighbourhood; (b) adequacy of controls placed on the proposed development to reduce conflict with any adjacent or nearby land uses by reason of:
(i) the height, size, bulk, density, lot coverage, lot size and lot frontage of any proposed building; (ii) traffic generation, access to and egress from the site; and (iii) parking;
(c) adequacy or proximity of schools, recreation areas and other community facilities; (d) adequacy of transportation networks in, adjacent to, and leading to the development; (e) adequacy of useable amenity space and attractive landscaping such that the needs of
a variety of household types are addressed and the development is aesthetically pleasing;
(f) that mature trees and other natural site features are preserved where possible; (g) adequacy of buffering from abutting land uses; (h) the impacts of altering land levels as it relates to drainage, aesthetics and soil stability
and slope treatment; and (i) the Land Use By-law amendment criteria as set out in Policy IP-1(c). (As amended by By-law C-692, Dec. 4, 1991)
[518] The Board will first note that it sees DMPS Policy IP-5 (b) as containing
similarities to RMPS Policy IM-15(b), which was adopted 15 years later.
[519] RMPS Policy IM-15(b) requires Council to, in part, consider:
In considering development agreements or amendments to land-use by-laws, in additional to all other criteria as set out in various policies of this plan, HRM shall consider the following: (b) that controls are placed on the proposed development so as to reduce conflict with any adjacent or nearby land uses by reason of: (i) type of use; (ii) height, bulk and lot coverage of any proposed building; (iii) traffic generation, access to and egress from the site, and parking;
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[520] Thus, both DMPS Policy IP-5(b) and RMPS Policy IM-15(b) include
reference to “height,” “bulk,” “lot coverage,” and “traffic generation and parking.” Both
refer to reducing “conflict” with “adjacent or nearby land uses.”
[521] Policy RMPS IM-15 is not referred to in the experts’ reports filed with the
Board, but Mr. Dickey acknowledged, on cross examination by Counsel for HRM, that it
is relevant to the present proceeding.
[522] He considered, however, that the essential matters appearing in the RMPS
IM-15, in the context of the present proceeding, are in substance dealt with in DMPS
Policy IP-5. The Board agrees.
[523] Moreover, the Board considers the fact that there are a number of items in
common between the RMPS and DMPS policies in question, and that they are specific,
lends still more weight to those items.
[524] The Board notes first the reference to the term “existing neighbourhood” in
IP-5(a), and to “adjacent or nearby land uses” in IP-5(b). These are not defined terms,
and as the Board has discussed elsewhere in this decision, the meaning of the word
“neighbourhood” has considerable scope. So, in the Board’s judgment, do “adjacent” or
“nearby” land uses.
[525] The Board now turns to DMPS Policy IP-5(i), which specifically
incorporates DMPS Policy IP-1(c) into DMPS Policy IP-5. It will be recalled that DMPS
Policy IP-1(c) is an important policy in relation to rezoning, but also applies to
development agreements. It requires Council to have regard to, among other things:
… (2) that the proposal is compatible and consistent with adjacent uses and the existing development form in the area in terms of the use, bulk, and scale of the proposal;
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(3) provisions for buffering, landscaping, screening, and access control to reduce potential incompatibilities with adjacent land uses and traffic arteries.
[526] The Board sees commonalities of language, and of concepts, in the three
policies just referred to (DMPS Policy IP-5; DMPS Policy IP-1(c); and RMPS IM-15).
For example, one finds the word “bulk” four times; the word “height” three times; the
word “scale” (which, in the Board’s opinion, can in planning matters, in varying degrees,
incorporate height and bulk) twice; “buffering” twice; and “compatibility” or
“incompatibility,” twice.
[527] In the view of the Board, such terms as “bulk,” “height,” “scale,” “buffering,”
and “compatibility,” etc., are – in the context of the MPS – “relative” or “subjective”
terms.
[528] The subjective nature of these terms is, in the view of the Board,
emphasized still more when one considers that the word “adequacy” begins both DMPS
Policy IP-5(a) and IP-5(b).
[529] On the matter of the significance of the word “adequacy,” the Board
considers the following excerpt from the cross examination of Mr. Heseltine and Ms.
Young, by Counsel for HRM, Ms. Brown, to be of relevance. She drew their attention
specifically to DMPS Policy IP-5(a):
MS. BROWN: And for example we have:
Adequacy of exterior design, height, bulk and scale of the new apartment development with respect to its compatibility with the existing neighbourhood. (As read)
You would agree with me that the -- how one looks at the adequacy may be different from one person to another, from one planner to another? MR. HESELTINE: It has a subjective elements.[sic]
[530] In the Board’s view, Council’s task in relation to DMPS Policy IP-5 can, in
fact, be seen as having multiple layers of subjective judgments.
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[531] Council is to “consider” the “adequacy” (a subjective term according to all
of the evidence before the Board) of such aspects of a proposal as “bulk,” “height,”
“scale,” “compatibility,” etc., (which are themselves likewise subjective).
[532] Further, Council is simply required to “consider” these items. In the view of
the Board, the Court of Appeal’s decisions make it clear that (while “consideration” of
such aspects as bulk, height, etc., by Council is mandatory), the weight which Council
chooses to give the particular criterion or criteria being considered is – as long as
Council’s decision remains reasonably consistent with the MPS – a matter for Council
to determine.
[533] To complicate matters further, the planning considerations found in DMPS
Policy IP-5 must not be evaluated in isolation, but again, following the repeated direction
on this point given by the Court of Appeal – in the context of the MPS as a whole. Thus,
the concepts enumerated above must also be evaluated in the context of such planning
considerations in the MPS as – to take but one of a number of examples – population
densification (a theme of particular importance to Mr. Heseltine and Ms. Young).
[534] As the Board has already discussed in relation to Issue 1 (the rezoning
application), the Board perceived some of the comments made by Mr. Heseltine and
Ms. Young, as well as by Mr. Dickey, as asserting that the subject property could not be
part of a neighbourhood because of its zoning. Indeed, the Board sees Counsel for the
Appellant, in a written submission, as accurately reflecting the evidence of Mr. Heseltine
and Ms. Young, and Mr. Dickey on the point. Counsel for the Appellant says:
The site of the Prince Albert cannot be said to be in an established neighbourhood as it is zoned C-2.
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[535] In the opinion of the Board, there are difficulties with this statement. To
assert that Monaco’s proposed tower cannot be said to be in an established
neighbourhood, because it is zoned C-2, overlooks among other things, the fact that the
project site is composed of two lots, one of them zoned C-2, and the other R-2.
[536] Counsel for Monaco refutes what he sees as the assertions by the
Intervenors and HRM that the Monaco site is in an “established neighbourhood because
there are single-family homes in the area”:
On their reasoning, as long as there are single-family homes in the vicinity, development is precluded.
[537] Whether or not that is a fair summary of the overall position taken by HRM
and the Intervenors, it is the Board’s view, having evaluated all of the evidence, and the
MPS, that the proximity of the subject property as a whole to the abutting residential
area, with many single-family homes, is a factor which, under the MPS, is one which
could reasonably be taken into account by the Municipal Council in reaching its
decision. Mr. Lloyd asserts that the subject property forms part of a “stable
neighbourhood” which:
…includes more than Glenwood Drive. It includes much of Celtic Drive, Penhorn Drive, Chittick Avenue, and Harris Road; and all of Lawrence Street, Lakeview Point Road and Hume Street. This request to rezone the Dartmouth Funeral Home and adjacent property on Glenwood Drive impacts on a large neighbourhood.
5.11.2.2 Conclusion on Development Agreement Application
[538] In Heritage Trust 1994, the Court of Appeal noted:
…There may be more than one meaning that a policy is reasonably capable of bearing. This is such a case. Planning decisions often involve compromises and choices between competing policies. Such decisions are best left to elected representatives who have the responsibility to weigh the competing interests and factors that impact on such decision…
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[539] In the judgment of the Board, the task of balancing criteria of this type, and
making a decision to approve a development agreement, or not, is one which - under
the Halifax Charter, and, applying the principles previously stated by the Court of
Appeal - properly rests with Council in the circumstances of this proceeding.
[540] It is precisely the kind of “value judgment” (in the words of Fichaud, J.A., in
Archibald), in which municipal councillors are called upon to make difficult choices
between conflicting policies.
[541] So long as a decision by a council can be seen as reasonably carrying out
the intent of the MPS (which, as indicated, the Board considers occurred here), the
Board should show deference to such a decision.
[542] Applying the same reasoning that the Board has applied in relation to the
rezoning decision earlier in this decision, the Board considers that the Appellant
Monaco has failed, on the balance of probabilities, to show that the decision by Council
to refuse approval of the development agreement is one which does not reasonably
carry out the intent of the MPS.
5.11.2.3 DMPS Policy IP-5 (a) and (b) and the Provisions of the DLUB
• Mr. Dickey’s Bonus Calculations • Can the DLUB be used to interpret the MPS?
[543] The above conclusion by the Board with respect to the development
agreement (and, for greater certainty, its earlier conclusion with respect to the
rezoning), was based entirely upon the Board’s evaluation of the MPS in the context of
the circumstances of this proceeding.
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[544] In reaching its conclusions, the Board has given no weight whatever to the
provisions found in the DLUB, including, in particular, the DLUB provision relating to R-4
zoning.
[545] However, the Board received a great deal of evidence and submissions
with respect to, in particular, the use of the DLUB by HRM staff, and, in general, the
relevance (or argued lack thereof) of the DLUB to the interpretation of the MPS.
[546] The Board will break its discussion of this issue into two sections.
[547] The first relates to Mr. Dickey’s use of the R-4 provision in calculating
additional or “bonus” residential units in support of his recommendation that Council
approve Monaco’s applications.
[548] The second relates to the question of whether the DLUB can be used at all
in relation to interpretation of the MPS.
5.11.2.3.1 Mr. Dickey’s Bonus Calculations [549] In part of his report, Mr. Dickey used the R-4 provisions in the DLUB to
calculate what would have been available to Monaco under the R-4 zoning by-laws
which governed apartment building construction in Dartmouth up until 1991. In his
report, he stated that the maximum number of units possible under the R-4 zoning rules
– as stated in s. 35(3) of the LUB - was 71 units. However, he suggested that Monaco
should be permitted to construct a building with 92 units, giving various reasons for
these 21 extra units, which he enumerates in his report.
[550] As Counsel for HRM pointed out, however, Mr. Dickey was only able to get
to his figure of 71 by awarding so-called “bonus” units to Monaco – a fact acknowledged
by him in his report.
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[551] However, Counsel for HRM argues, and the Board has concluded it
agrees, that Mr. Dickey’s calculations of the bonus units are not consistent with LUB s.
35(3); further, the errors which appear are all in Monaco’s favour.
[552] First, as Counsel for HRM points out in a written brief, Mr. Dickey’s report
in effect awarded a bonus of 10% to the subject property for being located across the
street from parkland, to which he added a further 6% for having underground parking.
[553] On the former point (proximity to parkland) the Board notes that Mr. Lloyd
took the view that the subject property is not actually across the street from parkland,
within the meaning of the R-4 zoning provision. The Board has concluded it need make
no finding as to the merits of that assertion in this proceeding.
[554] In effect, Mr. Dickey added the two bonus calculations together (10% +
6%), thus engaging in what the Board will term “accumulative bonusing.”
[555] Counsel for HRM and the Intervenors say, and the Board agrees, that the
language of s. 35(3)(c) does not contemplate accumulative bonusing. There are four
sub-clauses within s. 35(3)(c), each of which describes a particular type of bonus
category, with the bonus expressed in percentage terms. Each of these clauses is,
however, joined together by the word “or,” not by the word “and.”
[556] The Board interpreted Mr. Dickey’s evidence on cross examination as
acknowledging that indeed the type of bonus calculation outlined in the DLUB does not
permit accumulative bonusing.
[557] As the Board interpreted his evidence, he claimed his accumulative
bonusing was justified on two grounds.
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[558] First, he said, it was his understanding that other development officers had,
up to 1991, allowed accumulative bonusing, despite the wording of LUB s. 35(3)(c).
[559] Second, he considered that because staff now use the DLUB provisions
respecting the R-3 and R-4 Zones “simply…as a reference,” he could indulge in
accumulative bonusing, no matter what LUB s. 35(3)(c) actually said.
[560] Even if one were to accept as appropriate his having increased the R-4
calculation to 71 in a manner inconsistent with LUB s. 35(3)(c), the Board notes that a
further arithmetic error appears to be occur in his calculations. He attributed a 6%
bonus for underground parking. Six percent is the bonus associated with parking
arrangements where all of the parking is underground, but not all of Monaco’s parking
would be underground. Some would be above ground, which, according to s. 35(3)(c),
would merit a bonus of no more than 4%.
[561] In short, Mr. Dickey’s planning report overstated to Council the maximum
number of units permitted under the R4 zoning bylaw – his figure of 71 is higher than
the section allows.
[562] To this already overstated figure, he added 21 additional units. He did not
justify the 21 through any calculations, but simply as a matter of professional judgment.
5.11.2.3.2 Can the DLUB be used to interpret the MPS?
[563] In supporting Council’s refusal to approve the rezonings or the
development agreement, Counsel for HRM relied principally on the provisions of the
MPS. However, she also argues that the DLUB (with its R-4 upper limit of, at the very
most – even using Mr. Dickey’s impugned calculations - 71 units) can be used to help
interpret the MPS.
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[564] For himself, Mr. Lloyd (testifying on behalf of HRM and the Intervenors)
saw the LUB as a useful tool in determining the intent of the MPS.
[565] On the other hand, Monaco’s experts, and Counsel for Monaco, argued it
was wrong to use the R-4 zoning provisions found in the DLUB as an aid to
understanding the MPS:
MR. ROGERS: Okay. Is it appropriate to treat the Land Use Bylaw standards for R-4 as a proxy for the intent of the Municipal Planning Strategy? MS. YOUNG: I can’t see how or why.
[566] It has long been held that, where the meaning of an LUB is in issue, the
MPS may be used to help determine the intent of the LUB: see, for example, J & A
Investments Ltd. v. Halifax (Regional Municipality), [2000] N.S.J. 92 (S.C.).
[567] In Mahone Bay Heritage and Cultural Society v. Town of Mahone Bay and
3012543 Nova Scotia Limited, [2000] N.S.J. No. 245 the Court of Appeal held that the
reverse could also be true: the Court said that – at least in the circumstances of
Mahone Bay - provisions in the LUB could be used to help determine the intent of the
MPS, by “throwing light on the intent of the strategy.”
[568] The Court provided additional direction on the point in Tsimiklis v. Nova
Scotia Utility and Review Board et al., 2003 NSCA 30. In that case, the Court reviewed
a decision of the Board which used the LUB to interpret the MPS, thereby reversing a
decision by a community council which would have allowed the development to occur.
[569] The Court, however, rejected this approach in Tsimiklis. In doing so, the
Court in Tsimiklis (like the Court in Mahone Bay) referred to the MPS and LUB
provisions in question having been simultaneously adopted. In Tsimiklis, the two had
not been adopted together – the LUB had been adopted later. The Court observed that:
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….that great caution must be exercised in using a subsequently enacted LUB or amendment to an LUB in the interpretation of a previously enacted MPS.
[para 56] [570] In the summary of planning principles appearing in Archibald, the Court
likewise referred to simultaneous adoption:
The reflexivity between the MPS and a concurrently adopted land use by-law means the contemporaneous land use by-law may assist the Board to deduce the intent of the MPS.
[para 24]
[571] Nevertheless, even if they had been adopted together (as in Mahone Bay),
the Court in Tsimiklis said that an LUB, while it can be a tool for interpreting an MPS,
ought not to:
…be used to tie council’s hand … [572] Thus, according to Nova Scotia’s present case law, one may use the MPS
to help determine the intent of the LUB (J & A Investments). It seems though that one
may sometimes be able to use the LUB to help determine the intent of the MPS
(Mahone Bay) – although the circumstances in which the LUB may thus be used are
limited, and perhaps increasingly so (Tsimiklis).
[573] In particular, there is an emphasis in the case law on the idea that if an
LUB is to be used, it should not have been adopted later, but instead
contemporaneously. Counsel for HRM of course acknowledged that the DLUB R4
provisions were not adopted at the same time as DMPS Policy IP-5.
[574] She emphasized, however, that the R-4 provisions were not adopted after
the DMPS (and its Policy IP-5), but before it. They were already in existence, and
known to Council, when it adopted DMPS Policy IP-5. Moreover, they were not
repealed by Council when it adopted DMPS Policy IP-5. Instead, they have continued
to exist, unchanged, to the present day.
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[575] In a written submission, Counsel for HRM argued that:
…had Council not seen the R-3 and R-4 "as of right" requirements as an upper limit on what ought to be permitted through the development agreement, they could have and would have removed those sections of the DLUB. The R-3 and R-4 requirements with respect to apartment buildings have no standing on their own as it is impossible to do an "as of right" apartment building in Dartmouth. Therefore, it is submitted that it is instructive that Council chose to leave the R-3 and R-4 requirements in the DLUB and at the same time require all apartment buildings in those two zones to be approved by development agreement.
[576] As such, she argued that the upper limit, in numbers of units, of what would
have been permitted under the R-4 zoning should be used in a development agreement
application as – if not a fixed upper limit – a guide to the maximum which could be
appropriate. She says the continued presence of the R-3 and R-4 Zone requirement is:
…indicative of the intent of the MPS with respect to considerations for development agreements in either the R-3 or R-4 Zones.
[577] The Board does consider that one obvious question is that if Council really
retained the R-4 (and R-3) zoning by-law after its adoption of DMPS Policy IP-5 in order
to set an upper limit with respect to the number of units, why did it not simply include
appropriate text with respect to such limits in the new MPS provision itself?
[578] Simply keeping the LUB provisions in place may reasonably be seen as
giving, at best, a broad hint of Council’s intentions. What is more, if keeping these
provisions was intended to be such a hint, it is arguably one of dubious efficacy – given
the limitations in the case law with respect to the use of LUB provisions to interpret the
MPS.
[579] To put it another way, the continued presence of the LUB provisions
relating to R-4 and R-3, without at least having explanatory comment in the MPS,
seems an entirely avoidable ambiguity.
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[580] That being said, the Board does see HRM’s argument here as intriguing,
and creative.
[581] In the end, however, apart from noting the argument in this (relatively
speaking) brief review (written in part to dispel any inference that the Board relied on the
DLUB provisions in question, in any way whatever), the Board has ultimately concluded
it would be inappropriate for the Board to make a finding on the point.
[582] The reason is that the Board has already satisfied, using the provisions of
the MPS alone, that Council’s refusal of Monaco’s applications reasonably carries out
the intent of the MPS.
[583] If, hypothetically, the Board were to have found that the DLUB could be
used as an interpretive tool to which some weight might be given in the circumstances
of this proceeding, the Board considers that so using the DLUB would simply have
reinforced, or been consistent with, the conclusion the Board has already reached using
the MPS alone.
6.0 CRITICISMS OF COUNCIL’S PROCESS BY DEVELOPER AND OTHERS [584] As the Board briefly alluded to in the “Facts” part earlier in this decision, a
number of people attending the council meeting of January 17, 2012, at which Monaco’s
applications were refused, were critical of the refusal having occurred at that stage.
[585] If Monaco’s applications had been permitted to go through the usual further
stages, including a public hearing process, a considerable amount of information put
together by the Developer, as well as information which might have been assembled by
opponents to the development, could have been subjected to public scrutiny, and
discussed by councillors.
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[586] Under the Council’s rules (according to the evidence before the Board), it
appears that the decision to refuse the development at first reading meant that even the
councillors themselves were not permitted to engage in debate with respect to the
advantages and disadvantages of the proposal – although it will be recalled that
Councillor McCluskey nevertheless managed to speak briefly on the issue, and engage
in some dialogue with Mr. Dickey. Certainly, neither the representatives of the
developer nor opponents to the project were able to speak at all before the application
was rejected.
[587] It is evident from all of the evidence before the Board that Monaco, and Mr.
Maskine personally, invested a great deal of time, energy, and expertise in putting
together their proposal for development of the subject property.
[588] The Board infers that Mr. Maskine and his associates were disappointed,
and even angered, by Council’s rejection of the project at this initial stage of review.
Expressions of that annoyance continued into the evidence and submissions at this
proceeding. For example, Counsel for the Appellant, in a written submission to the
Board, stated that Halifax East Community Council:
…did not even provide the Appellant with the courtesy of a public hearing for the project…
Eleven pages later, Counsel returned to the topic once again, saying that HRM:
…defeated the proposal without reasons and without granting the developer an opportunity to proceed to a public hearing on the merits of the proposal.
[589] While persons were clearly surprised and disappointed by Council’s action
in rejecting the application at first hearing on January 17th, the Board notes that
according to the evidence before it, the rejection of an application at first reading is not
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unprecedented. Three such instances, in recent memory, were referred to in the cross
examination of Mr. Dickey by Counsel for HRM.
[590] Whether Council’s dealing with the matter in this summary fashion was fair,
or not, or even gave the appearance of being fair, or not, is not a matter over which the
Board has any jurisdiction.
[591] The Act, and the case law from the Court of Appeal (in particular, Maskine,
which is referred to in some detail elsewhere in this decision under “Issue 2”) has strictly
limited the Board to deciding whether a decision by a council to say yes, or to say no, to
a rezoning, or to a development agreement, can be seen as reasonably consistent with
the MPS.
7.0 CONCLUSION
[592] The Board finds that the Appellant, Monaco, has failed, on the balance of
probabilities, to show that Harbour East Community Council’s decision to refuse
Monaco’s application to rezone the subject property fails to reasonably carry out the
intent of the Municipal Planning Strategy.
[593] With respect to the appeal of Council’s refusal of the development
agreement, the Board made no finding with respect to whether or not it had jurisdiction
(in the unusual circumstances of this matter) to hear the development agreement
appeal; it merely assumed, without finding, that it did have jurisdiction.
[594] Having assumed that it does have jurisdiction, the Board finds that Monaco
likewise failed (as it had, in the Board’s judgment, in the rezoning appeal) to show on
the balance of probabilities that Council’s decision to refuse approval of Monaco’s
130
development agreement failed to reasonably carry out the intent of the Municipal
Planning Strategy.
[595] The appeal is dismissed; the decision by HAM's Halifax East Community
Council to reject Monaco's project stands.
[596] An Order will issue accordingly.
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! /( Wayne··o. Cochrane