Who’s Afraid of the UARB?

The Big Pond RV Park debate (which, as the Allman Brothers would say, is over but ain’t through) raised a lot of interesting questions for me, about everything from the purpose of public consultation to the role of the Nova Scotia Utilities and Review Board (UARB) to the responsibility of Canadian municipalities toward the environment.

I’ve been doing some reading on all these things this past week and thought I’d share some of my findings, starting, for no particular reason, with the UARB.

 

The Caterpillar

The UARB was used as something of a bogeyman by Mayor Cecil Clarke and municipal staff in this debate, with regional solicitor Demetri Kachafanas warning council that if it denied Chris Skidmore’s application for a zoning change, the developer would likely appeal the decision to the UARB and the UARB would likely rule in his favor.

The Mayor made being called to testify before the UARB sound like being called to the principal’s office:

I’ll refer to the Capterpillar equipment location where it went before the UARB and the councilor for the district was called before the board as a witness and…that was not a pleasant experience from what I gather for that councilor because the ultimate decision was that it was on a political basis as opposed to on a process basis that they would review.

Kachafanas expanded on this somewhat:

If I can just follow up on the staff participation, what happened in the Caterpillar…if this application is denied and appealed, it’s likely that Malcolm [Gillis] or Karen [Neville] would be called as a witness for the other side. Malcolm has been qualified as an expert prior, in the Caterpillar case, and so he would be, I guess, giving evidence that he believes it follows the intent of the Municipal Planning Strategy. Furthermore…if you’re denying the decision based on some of the things that you mentioned — CEPI Charter, environment, based on what the people want, it’s likely that the board will overturn your decision…

I found these references unhelpful, given that I still didn’t know “what happened in the Caterpillar” or when. Fortunately, CBRM spokesperson Jillian Moore was able to provide me with all the details I could ever want (and on short notice to boot):

A zoning amendment was applied for in the spring of 2005 to allow for a Building/Development Permit to establish the Caterpillar operation currently located at 135 Frenchvale Road. A Public Hearing of CBRM Council was held on July 20th, 2005 (Here are the minutes). Although Planning and Development Department staff recommended Council adopt an amendment drafted by staff (i.e. a spot zoning), the application was rejected by Council and subsequently appealed to the Nova Scotia Utility and Review Board.  The Board conducted its appeal in December 2005 and allowed the appeal in a decision rendered February 21st, 2006.

If you read the UARB decision, you’ll see the councilor called on to testify for the respondent (the CBRM) was Claire Dethridge and planner Malcolm Gillis did, in fact, testify for the appellant (Paul MacKinnon). The CBRM chose not to engage another planning expert to contradict him which would, admittedly, have been awkward, but which also seems to suggests the CBRM wanted the zoning amendment to pass.

Two other things leap out at me reading the decision. The first, is that it’s 13 years old — has there been no incidence of a CBRM council decision being challenged and overturned by the UARB in the meantime?

The second is that the decision was made a year after the MPS was first adopted, at a time when we felt, apparently, that we were on the cusp of a new Cape Breton economy.

Gillis’ testimony begins (as does our Municipal Planning Strategy) with the sad story of the decline and fall of the Cape Breton economy. At one point, Gillis is asked to read aloud from the MPS and although the paragraph is only quoted in part in the UARB report, I’m going to quote it in full because I think it’s telling:

The growth in the tourism industry, digital technology, and communications service sector is promising but the most significant replacement would be the development of the offshore oil and gas industry. And that will not see dividends until a few years at least.

In the interim, the Cape Breton Regional Municipality must adopt an economic development policy that:

  • focuses on ways to provide the infrastructure to foster this new economy; and
  • implement land use policies that state the Regional Municipality is open to attract business.

Thirteen years later, we are apparently still in this interim period: the MPS was updated in October 2017 and this paragraph remained untouched, suggesting we are not only still waiting for the tourism, digital technology and communications service sectors to really come on strong, we’re also still holding out hope for dividends from the offshore oil and gas industry. Shouldn’t we update this to say we’re now expecting coal and Ultra-Large Container Vessels to save the day?

Thirteen years later, the need to prove the CBRM is “open to attract business” is still trotted out to support an RV Park which will produce seasonal jobs, at best, and which may not even do anything to promote tourism — sometimes it seems like the park will just be home to 211 vacationing Cape Bretoners, which is not a bad thing, but isn’t tourism.

The “Caterpillar” case is similar to the RV Park case in some ways: the appellant wanted his rural property rezoned to allow him to operate a Caterpillar equipment and engine dealership and a number of local residents opposed it. But in other ways it’s not similar: MacKinnon, for instance, wanted to move an existing business to a new location; he owned the land he wanted rezoned; his new enterprise would not be located on the Bras d’Or Lakes; and no one seemed concerned it would have an impact on local water supplies.

But there’s no doubt the case is instructive. Here’s the Board’s ruling:

The evidence is clear that the relative impact of the amendment to the zoning by-law, on each of the elements in 16.e of the MPS – visual compatibility, dust or fumes emanating from the site, traffic attracted to and leading from the site, and noise emanating from the development – were considered by the Planner, and placed before Council, recommending that there was compliance with the criteria, such that there would be no adverse effect on residential development, and that the zoning application should not be rejected. The Board finds that each of the elements was met by the proposed rezoning application.

The Board has considered all the evidence, including the oral testimony, the nature of the area as viewed by the Board on the site visit, submissions of counsel and Intervenors and the relevant provisions of the MPS.  Despite the sincerely held concerns expressed by those opposed to the rezoning, many of whom fear an opening of the floodgates to industrial development, the Board is persuaded by the evidence of the Planner, which was not impugned by any other expert witness called to contradict his evidence or cross-examination, that the decision of CBRM Council to reject the rezoning of the property under appeal, is not reasonably consistent with the intent of the MPS.

The Board allows the appeal and reverses the decision of Council.

 

What odds?

I wondered if one, 13-year-old example was really indicative of the UARB’s approach to overturning the decisions of elected bodies (an undertaking even the Supreme Court of Canada, after all, does not take lightly) .

Fortunately for me, the Halifax law firm of Cox & Palmer has done some research that helps to answer that question.

In a November 2017 blog post entitled, “Municipal Planning Appeals: Know the Odds,” Cox & Palmer managing partner Kevin Latimer, QC writes:

Those thinking of appealing a municipal council decision to the Nova Scotia Utility and Review Board — be they developers or concerned citizens — should think carefully before proceeding.

Latimer says his firm examined the data for the years 2010-2017 (so, of much more recent vintage than “the Caterpillar”) and found that:

On rezoning or development agreement appeals, the research indicates the Board shows significant deference to Council’s decision-making. In the majority of cases, appeals are dismissed, and Council’s decision on a project will stand…

In rezoning or development agreement cases, the Board can overturn both Council approvals and Council refusals. But, the Board only has limited power to do so. The Board cannot simply substitute Council’s decision with its own. Council’s decision can only be overturned if it does not reasonably carry out the intent of the Municipal Planning Strategy, or if it conflicts with the land-use by-law. The Board respects these limits on its power, and does not take lightly reversals of decisions made by elected municipal officials.

The Board’s limited authority leaves significant power in the hands of Council. This can be seen as problematic. Councillors often have little formal planning expertise.  At the same time, the Board’s mandate recognizes that those who were elected to govern a municipality have the ability to control development in their jurisdiction in accordance with plan policies.

As for the actual numbers, Latimer reports that from 1 January 2010 to 30 September 2017 more than 60 rezoning and development agreement planning appeals were initiated at the UARB. Of those, some were withdrawn, others discontinued, some settled, leaving 36 for the Board to decide. Of those, 21 were initiated by residents or groups opposed to a council’s approval of a rezoning or development agreement while 15 were initiated by developers who had been refused a rezoning or development agreement:

In 36 decisions, the Board only overturned Council seven times. On closer examination, the Board dismissed 20 out of 21 appeals by residents or groups seeking to have project approvals reversed…Meanwhile, developers appealing Council rejections were successful six out of 15 times — a 40% success rate.

For Latimer, that 40% success rate:

…should sound a cautionary note for any developer considering the appeal route to proceed carefully and with good guidance around the Board’s limited ability to overturn Council decisions.

So, rather than being a surefire win for developers, UARB appeals are time-consuming (Latimer estimates three months on average to get a hearing and then another three months to get a decision) and more likely to fail than succeed.

Good to know.

 

 

 

 

 

 

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