CBRM Appeals UARB RV Park Ruling

The CBRM has asked the Nova Scotia Court of Appeal to overturn the UARB’s decision in the case of a proposed Big Pond RV park.

The papers were filed on February 21 but CBRM regional solicitor Demetri Kachafanas told the CBC it could be “months” before the case goes to court.

In brief: Calgary-based developer Chris Skidmore applied to the CBRM for a zoning change to allow him to develop an RV Park straddling Route 4 in Big Pond. The full development would involve 541 RV sites and 60 camping sites (plus a variety of “amenities”). The first phase, which CBRM planners recommended Council approve, was to involve 211 RV sites on the water side of the highway.

Council voted 7-6 in favor of the zoning amendment. Residents of Big Pond appealed the decision to the UARB. The UARB handed down a 95-page decision in their favor. Now the CBRM is appealing that decision.

Here are the things I would note:

 

Silent partner

First, it’s the CBRM that is appealing the decision, not the would-be developer, Chris Skidmore. This follows the strange pattern, established from the very beginning of this case, of the CBRM doing all the work — and Skidmore sitting silently by. Skidmore barely spoke in defense of his own plan during public hearings on the zoning amendment and he didn’t say boo during the UARB hearings.

I’ve already noted the hours of work the planning department has put into defending Skidmore’s plan, now the CBRM will foot the bill for an appeal that, arguably, Skidmore should be mounting himself.

Kachafanas told the CBC’s Wendy Bergfeldt on January 31 that the municipality is appealing because it feared the decision might set an unfortunate precedent:

One of the things we’d be worried about is whether, based on the UARB interpretation, whether you could site a campground at all in CBRM based on the protections the UARB would expect…We look at the precedent setting value and that certainly would come in to our analysis.

 

Against all odds

Second, it is very rare for the NSUARB to overturn a council decision, as Cox & Palmer managing partner Kevin Latimer explained in a November 2017 blog post (no longer available, for some reason) entitled, “Municipal Planning Appeals: Know the Odds.”

Latimer analyzed UARB rezoning and development agreement planning appeals from 1 January 2010 to 30 September 2017 and found that of over 60 appeals initiated in that period, some were withdrawn, others discontinued and some settled, leaving 36 for the Board to decide.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.

These stats are particularly interesting in light of the warning Kachafanas delivered to CBRM Council during debate on the zoning amendment: he told councilors that if they voted against the amendment, the developer would likely appeal to the UARB (note he said the developer would appeal, not the CBRM) and the UARB would likely rule in his favor, when in fact, 60% of the time, developers lose these appeals.

Of course, residents lose these appeals 95% of the time and yet, Big Pond residents won.

 

Legal opinion

Third, according to what Kachafanas told Bergfeldt, the decision to appeal the UARB decision was made by the CBRM legal department, based on its analysis of the decision. Kachafanas says this is normal procedure, that the legal department often makes such decisions without returning to council.

But that doesn’t mean he couldn’t have returned to council — and given that the vote in favor of the development was so close (and that the councilor who represents Big Pond, Ivan Doncaster, told the CBC he didn’t want the CBRM to appeal the UARB ruling), it might have made sense to.

The CBRM is claiming the lawyers on the UARB panel that heard the case — Roland Deveau, David Almon and Roberta Clarke — made 11 errors of law.

That is a lot of errors for a group of experienced lawyers to make. I am not a lawyer and cannot evaluate the strength of the CBRM’s case, but I can note that the CBRM’s regional solicitor has been known to make errors of law himself, most recently in failing to warn councilors they were not permitted to discuss their own salaries in camera. (An error he promptly compounded by threatening legal action against any councilor who criticized him publicly for giving them bad advice).

He also figures in the March 2016 report by the Office of the Ombudsmen on the Archibald’s Wharf sale. The report notes that Kachafanas had acknowledged to the ombudsman that:

“…the one area that Council made an error was the timing of the notice of Public Hearing.” He further noted “…it was a technical breach of the [Municipal Government] Act and that the spirit of the provisions were met and allowed the public hearing to proceed.”

Although he blames Council for the error, he himself admitted, after the remuneration kerfuffle, that it is his responsibility to warn Council if he sees it doing something against the MGA — like failing to meet the requirements for a public hearing.

In responding to the ombudsman’s findings, then-CAO Michael Merritt stated:

While we believe that as our solicitor indicated we met the spirit of the law and that we gave the residents of the CBRM opportunities to speak to the matter at hand, we have accepted your recommendation and have discussed our plan in regard to ensuring future notices meet the requirements of the MGA.

The ombudsman, though, did not agree with the solicitor that the CBRM had met the “spirit of the law.” He said the requirements for public notice stated in the MGA were not followed.

I was actually curious to know whether this UARB appeal was strictly the work of Kachafanas or if the CBRM had hired — or was contemplating hiring — outside counsel to help with the case, so I asked the CBRM.

As of press time, I had not received a reply.

 

Case history

Fourth, I asked Kevin Latimer of Cox & Palmer how often UARB decisions were appealed in court. He told me by email:

Under the Utility and Review Board Act, Board decisions on rezonings can only be appealed to the Court of Appeal on a question of jurisdiction or a question of law.  So essentially you have to establish an error of law which, coupled with the deference the Court gives to the Board as a specialized administrative tribunal, makes an appeal from a Board decision challenging.

As a consequence, appeals of Board decisions in cases like the Big Pond case, while not unheard of, tend to be rare.

Before we go any further, I’d like to talk about the “deference” the Court gives the UARB. To do so, we need to make a brief side trip to the Supreme Court of Canada. Wonky, yes, but worth it, I think, because it will give you a sense of what the Nova Scotia Court of Appeal will be considering when it hears the CBRM’s case.

We’ll start with an important Supreme Court decision — Dunsmuir v New Brunswick, 2008.

The case involved a provincial employee in New Brunswick who was terminated and filed a grievance. His grievance was denied and then sent to an adjudicator. The adjudicator issued a preliminary finding that the employee was entitled to an adjudication as to whether he was dismissed without cause. The Province of New Brunswick applied for a judicial review of the adjudicator’s decision.

Are you with me so far?

Basically, all you really need to know is that the Province of New Brunswick asked a court to review the decision of an adjudicator and the question that arose was how, exactly, the court was supposed to do that — what standard should it apply to the adjudicator’s decision? The question went all the way to the Supreme Court where a five-justice majority ruled that there were too many standards of judicial review in Canada and there “ought to be only two” — “correctness” and “reasonableness.”

Writing for the majority, Justices Bastarache and LeBel explained the difference between the two standards this way:

When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable.  Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.  It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

A year after the Supreme Court issued its ruling, the Nova Scotia Court of Appeal was asked by the Halifax Regional Municipality to review two UARB decisions (HRM v United Gulf Develpments Ltd) and Justice J. A. Hamilton drew on Dunsmuir v New Brunswick to decide how it should review those decisions.

Hamilton wrote:

The Legislature through the MGA and the URBAct has specifically empowered the Board to determine whether a council erred by refusing an amendment of a development agreement and whether a development officer erred by refusing to grant a development permit. While the Board is not a single-purpose administrative tribunal such as the Labour Relations Board or the Workers’ Compensation Appeal Tribunal, both issues raised in this appeal are squarely within its jurisdiction and expertise. This suggests deference is owed by this court to the Board’s decisions in this case.

Hamilton ruled the standard to be applied to the UARB’s decision was “reasonableness.”

 

Reasonableness

So, a year after the United Gulf decision, in 2010, the Nova Scotia Court of Appeal was asked to hear another case that is interesting because it is sort of the mirror opposite of the RV Park case — and yet, the question the court was asked to consider was the same, did the municipality follow its own MPS?

Archibald v. Nova Scotia (Utility and Review Board) pitted a group of citizens belonging to a heritage society against the NSUARB, a developer, the Town of Truro and the Attorney General of Nova Scotia.

What happened was that a developer named Creelman wanted to build a multi-unit residential building in Truro. Truro’s director of planning and development wrote a staff paper supporting the development but Council voted against it. Creelman appealed Council’s decision to the UARB (the case was heard by Roland Deveau, as a matter of fact) and the UARB allowed Creelman’s appeal, ruling that in voting against the development, Council had failed to carry out the intent of its Municipal Planning Strategy (MPS).

A group of citizens appealed the UARB decision to Nova Scotia Court of Appeal.

In his decision in the case, Justice Joel Fichaud began by establishing that under the Municipal Government Act — Section 250(1)(b) — the UARB can hear an appeal of a council decision only on the grounds that the decision “does not reasonably carry out the intent of the municipal planning strategy.”

Likewise, under Section 251 (2), the Board can only allow an appeal if it “determines that the decision of council…does not 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.” In the case of the Truro development, Fichaud wrote:

The Board’s decision expressly purports to apply that standard to the Town Council’s refusal of Mr. Creelman’s proposed development agreement. There is no issue respecting the Board’s selection of its standard.

The issue on appeal, then, was “whether the Board committed an error of law in its application of ss. 250(1)(b) and 251(2).”

And to judge the Board’s decision, Fichaud, citing Hamilton in United Gulf, concluded that the standard to use is “reasonableness.”

Fichaud found that the UARB decision was, indeed, reasonable:

[T]he question is whether the Board’s decision offended the reasonableness standard of review that governs the Court in this appeal. The Board’s reasoning is transparent and intelligible. I understand how and why the Board reached its conclusion, and I am able to assess the acceptability of the Board’s outcome. The Board considered both the Council’s stated reasons and the Council’s ultimate conclusion, and did not just engage in a de novo planning exercise. The Board explained how both the Council’s reasons and conclusion did not carry out the intent of identified passages in the MPS. The Board’s interpretation of the MPS was supported by evidence of the planning witnesses and the terms of the MPS…

In my view, the Board’s decision, including its interpretation of the MPS, satisfies the reasonableness standard of review.

 

Precedent?

What does this mean for the CBRM’s appeal?

Well, it seems clear the court will once again apply the standard of “reasonableness” to the UARB’s decision.

And it’s worth noting that the reason Dunsmuir v New Brunswick went all the way to the Supreme Court is that courts take judicial review seriously — Canadian courts, from what I’ve been reading, have been careful to avoid “judicial intrusiveness” (overly careful, some argue). So the Nova Scotia Court of Appeal will not overturn a UARB decision lightly.

And I would also point out that in that Truro decision, the Nova Scotia Court of Appeal suggested to the residents that the “fix” for the problem, as they saw it, of the increasing “scale of non-traditional uses” in their heritage neighborhood was “an amendment of the MPS,” not a court appeal. Precisely what former CBRM director of planning Doug Foster argued in these pages a couple of weeks ago, noting that “wasting CB money on an appeal to the Courts will not improve or change CBRM planning policy.”

But I’m sure our regional solicitor has thought this all through carefully.

He’s reasonable, right?