UARB Critical of CBRM Planners in RV Park Case

I have to start by quoting myself. This is what I wrote about Chris Skidmore’s RV Park proposal for Big Pond back in February 2018

CBRM planning staff seem really keen on this Big Pond RV Park idea.

I don’t know how else to interpret the time and effort planning director Malcolm Gillis and planner Karen Neville have put into Calgary developer Chris Skidmore’s project — first in their original recommendation that council amend a municipal zoning by-law to allow phase one of the development to proceed, and then in their 9-page response to concerns raised during a public hearing on the matter.

I also noted that Skidmore himself barely had a word to say in support of his own proposal — Gillis and Neville did all the heavy lifting.

And now the Nova Scotia Utility and Review Board (UARB) has found that in doing so, they actually misled Council about the applicable municipal policy.

 

Recap

But first, a recap — last March, CBRM Council agreed to amend a zoning by-law to allow Calgary-based developer Chris Skidmore to proceed with the first phase of a larger development that would ultimately see 541 RV sites and 60 camping sites (plus a variety of “amenities”) developed on land spanning both sides of Highway 4 in Big Pond. The first phase was to involve 211 RV sites on the water side of the highway.

The amendment was to establish a “site specific” zone that would cover the land intended for the development.

The vote was close —  7-6 —  with Councilors Clarence Prince, Earlene MacMullin, Steve Gillespie, George MacDonald, Darren Bruckschwaiger, Jim MacLeod and Mayor Cecil Clarke voting to accept planning staff’s recommendation to amend the zoning by-law and Councilors Esmond “Blue” Marshall, Eldon MacDonald, Ray Paruch, Ivan Doncaster, Amanda McDougall and Kendra Coombes voting against the amendment.

Prior to the vote a public hearing had been held during which the overwhelming majority of presenters spoke against the development. Following the vote, a group of Big Pond residents appealed the decision to the UARB.

On Tuesday, the UARB — which said that it had received 42 letters of comment, 39 of which were opposed to the development — handed down an exhaustive, 95-page decision in the matter, which considered each and every point raised by the residents and the CBRM before deciding in favor of the residents.

A number of things struck me about the decision (my discussion of which, I warn you now, will not be exhaustive — I’m not even touching on the question of agricultural land use, for example). The first was that while the appellants called 16 witnesses and the CBRM called two:

The Developer did not testify, nor did he call any witnesses, at the Board’s hearing.

Once again, Skidmore left the defense of his project to the municipality which called Senior Planner Malcolm Gillis and Planner Karen Neville as its only witnesses.

The second was that the Board did not rule on any environmental considerations surrounding the development, saying it had no jurisdiction to do so.

 

Policy 17e

But what really struck me about the decision was the discussion of the interpretation of Part 2, Policy 17e of the Municipal Planning Strategy (MPS) in Neville’s staff report to council in support of the development.

Briefly, the policy states that in creating a site-specific zone, like the one proposed for Skidmore, the site itself, the site plan and the management of the business development must “mitigate any adverse affects the development will have on low density residential development in proximity.” As the Board points out, the policy then states:

[I]f zone provisions cannot be established that provide “reasonable protection to residential development in proximity, the application shall be denied ” [Emphasis added by the UARB Board]

The Board first remarks that the CBRM planners did not provide Council with the actual text of this policy:

The Board notes that unlike many staff reports provided by planners in other appeals heard by the Board with respect to other municipalities across the province, inexplicably, CBRM’s planners did not provide a copy of the actual text of Policy 17.e to Council, either within the Staff Report itself, or as an appendix to the Report. As such, there is no evidence on the record that CBRM’s Council had before it the actual wording of Policy 17.e when it considered the Developer’s zoning amendment application.

The Board then notes that Neville’s staff report was “wrong in a few important respects” in its interpretation of the policy:

First, Ms. Neville indicated to Council in her Staff Report that: Part 2, Policy 17e. of the Municipal Planning Strategy states that if zone provisions cannot be established that provide reasonable protection to residential development the application can be denied. … [Emphasis added by the UARB Board]

Under cross examination by the Board chair, Neville admitted there was a difference between “can” and “shall”:

(The Chair) … Going to the last page of your report. In the second paragraph under your recommendation it says: “Policy 17(e) of the municipal planning strategy states that if zone provisions cannot be established that provide reasonable protection to residential development, the application can be denied.”

That’s not what the policy says, is it?

A. The policy says: “If zone provisions cannot be established to provide reasonable protection to the residential development in proximity, the application shall be denied.”

Q. Correct. That’s not what your report says, though, is it?

A. It says “can be denied” as opposed to “shall”.

Q. Right.

A. Right.

Q. There’s a difference there, isn’t there?

A. Right. Yes. Well, “shall” means do not and “can” means not necessarily.

Q. Right. So, the policy says: “If the zone provisions cannot be established that provide the responsible protection, the application shall [or must] be denied.”

A. Right.

Q. There’s no choice for Council.

A. Right.

 

Mitigating circumstances

The Board also took issue with what it termed Neville’s “‘mitigate/not eliminate’ exercise,” stating that Neville, in her staff report and her testimony, appeared “to focus on the mitigation of any adverse affects [associated with the RV Park] without regard to the reasonableness of such measures.”

In short, she seemed to tell Council that if Skidmore did anything at all to reduce the noise or fume or dust or traffic or visual-compatibility issues with his RV Park, it would be enough.

But the Board didn’t agree:

It is simply not enough to “mitigate” any adverse affects. Policy 17.e requires that zone provisions must “provide reasonable protection to residential development in proximity”. Otherwise, the application must be denied…

Indeed, as noted in Policy 17.e itself, where zone provisions cannot be established that provide reasonable protection to residential property in proximity, the application “shall be denied ” [Emphasis added by the UARB]. In setting out the test under Policy 17.e as she did, Ms. Neville advised Council that where such reasonable protection could not be established, the application could, but was not required, to be denied. Her advice to Council on this point was not consistent with the Policy.

That last line, by the way, is key to the decision — the Board’s task was to determine if the CBRM Council’s decision to amend the zoning bylaw “failed to reasonably carry out the intent of the MPS.”

 

Zip lines, etc

The Board also found fault with the way Neville evaluated the potential adverse effects of the “additional amenities” Skidmore proposed to offer in his campground. Basically, she said that things like zip lines, ATV trails, a liquor store or an Amphitheatre could exist “as-of-right” on the site within the existing zoning regulations (Big Pond is a Rural CBRM Zone):

As a result, in assessing the rezoning application, she did not consider any impact from these amenities on “residential development in proximity”. Rather, Ms. Neville only considered the campground use, itself, in assessing the potential impact on the “residential development in proximity”, without regard to accessory uses.

In the Board’s view, this was not a reasonable interpretation of the MPS, or of the LUB [Land Use Bylaw]…

Accordingly, the Board concludes that Ms. Neville should have considered the potential impact arising from the cumulative effect of the campground and all of the accessory uses, including the various recreational amenities. In failing to do this, the Board finds that her interpretation on this point is not reasonably consistent with the intent of the MPS.

And the Board said Neville “misapprehended the scope of the CBRM’s jurisdiction over land-use regulation in and around the shoreline, including artificial structures jutting into the water,” like this one, which Skidmore used to illustrate his proposal:

Water playground.

Water playground.

Neville “repeated on several occasions” that the CBRM did not have jurisdiction over Skidmore’s proposed water “activities,” but the Board rebutted that with a reference to the Municipal Government Act (MGA) which states:

All docks, quays, wharves, slips, breakwaters and other structures connected with the shore of any part of a municipality are within the boundaries of the municipality.

 

Inconsistent

Neville was also asked, under cross-examination by the agent for the appellants, Jim MacDonald, about a similar rezoning application that came before the CBRM in 2015. In that case, a landowner on the Point Aconi Road wanted, not to open an RV campground, but to “store some of his RV inventory” on the property. There was, the Board notes in its decision, “no building proposed with the storage, and no sales, repair or servicing of the RVs.”

Neville’s staff report to Council recommended the zoning application be denied:

In reaching that conclusion, she applied the identical test under Policy 17.e, and made three significant observations: (1) the proposed use would be in a predominantly low density residential area; (2) the proposed storage use would be visible from some of the neighbouring residential dwellings, despite the fact that the subject property did have a tree line along some of its boundaries; and (3) she opined that the lack of opposition from persons in the neighbourhood would support the application’s approval.

The Board accepts the submission of the Appellants that Ms. Neville’s analysis on Point Aconi Road is inconsistent with her analysis in the present appeal relating to Big Pond. It could be argued that the three reasons outlined by Ms. Neville in the former matter would provide even stronger support for denying the zoning amendment in the present Big Pond matter. In light of this inconsistency, the Board assigns less weight to her opinion in this appeal

In summation, the Board stated:

To the extent that Council relied upon the expression of the test under Policy 17.e, as described by Ms. Neville in the Staff Report, the Board finds, on the balance of probabilities, that Council relied on an interpretation of the test which was wrong and was not based on an interpretation that the language of the Policy could reasonably bear. Accordingly, to the extent it relied on Ms. Neville’s interpretation of Policy 17.e, Council’s decision approving the zoning amendment did not reasonably carry out the intent of the MPS.

But wait, it doesn’t end there. The Board then spent a few pages trying to figure out if there was another interpretation of 17.e that would allow the RV development and did carry out the intent of the MPS. It could not find one.

In passing, the Board noted that CBRM Council does not have “unfettered power to do as it chooses” (good to know) and that:

CBRM Council is not entitled to simply listen to all the comments during its planning process and then decide to ignore such evidence and do as it chooses without regard to clear policy direction contained in the MPS. Rather, CBRM is required to apply the policy in a manner that would reasonably carry out the intent of the MPS.

And then it ruled:

Having reviewed all of the evidence and the law, the Board is satisfied that the Appellants have discharged the burden of showing, on the balance of probabilities, that the decision of CBRM Council approving the rezoning did not reasonably carry out the intent of the MPS.

Accordingly, the appeal is allowed.

The CBC is reporting that Skidmore — speaking through his lawyer — has expressed his shock at the decision and that the CBRM may appeal it.

 

 

 

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