CBRM Has Day in Court (and Loses)

On Monday, the Nova Scotia Court of Appeal dismissed the Cape Breton Regional Municipality’s bid to reverse a UARB ruling overturning a CBRM Council decision that green lighted the development of a 211-site, lakeside RV park in Big Pond Centre.

That was a lot to pack into a single sentence, wasn’t it?

Let’s take that one element at a time.

 

The Park

The RV park (Ceilidh on the Lakes) was the brainchild of Calgary-based developer Chris Skidmore, who, as best I can determine, has no track record developing RV parks, either here or in Calgary.

Weirdly, neither the CBRM planning department which — as I’ve documented in detail — went to extraordinary efforts to assist Skidmore, nor the CBRM council seems to have inquired into Skidmore’s qualifications as a developer of lakeside RV parks.

Skidmore’s original plan, conceived in 2014, called for the park to cover four properties spanning both sides of the East Bay Highway at Big Pond Centre and to include 541 RV sites, 60 camping sites and various amenities (an amphitheater, a zip line, ATV tracks, a splash pad, basketball courts and — perhaps most controversially — an elaborate water-play structure).

The developer, as I discovered when I FOIPOPed their communications, began discussing his RV Park dream with CBRM Director of Planning Malcolm Gillis and planner Karen Neville in 2015, although the general public didn’t get wind of anything until Skidmore staged an open house in Big Pond in September 2017. In October 2017, Skidmore applied to council for a zoning change (covering the four properties) that would allow the development to proceed in Big Pond Centre.

 

The Council

Skidmore’s proposal had a bumpy ride through the regional council, which granted permission to advertise a public hearing on the proposed zoning change during its regular monthly meeting on 28 November 2017.

Initially, the hearing was scheduled for 12 December 2017, but in the end it was held on 20 February 2018. By this time, planner Neville was advising council to approve Phase 1 of the development (on the lake or north side of the East Bay Highway) by creating a “site specific” Big Pond Campground zone encompassing just the properties (and sections of properties) involved:

The public hearing lasted all day and saw roughly 30 people address council. All but one of the speakers opposed the project, as did most of those who submitted written opinions. Following the hearing, during the regular council meeting on 27 February 2018, the municipal planners presented a nine-page response to issues raised by those opposed to the RV Park and stuck by their recommendation that council approve Phase 1 of the project.

 

The planners argued that many of the issues raised by residents — particularly, concerns about the environmental impact of the park — were beyond the jurisdiction of the municipality. Gillis repeatedly expressed the opinion that this was the first step in what would be a very long approval process and that environmental and other issues would be considered at the provincial level. But District 3 Councilor Esmond (Blue) Marshall asked that the vote on the zoning amendment be postponed until the municipality could consult properly with First Nations.

CBRM Mayor Cecil Clarke ruled the motion out of order, but moved that council postpone the vote on the amendment to March 7 and ask Regional Solicitor Demetri Kachafanas to gather information on the municipality’s legal position regarding Aboriginal consultation. Council agreed.

During a special council meeting on March 7, Kachafanas expressed the opinion that Nova Scotian municipalities had no duty to consult with Aboriginal groups and planning staff noted that they had contacted the Nova Scotia Office of Aboriginal Affairs which confirmed it was not normally its practice to consult on municipal zoning questions. Kachafanas further opined that were council to reject the zoning amendment and Skidmore to appeal the decision to the UARB, the board would consider the proposed amendment only in terms of the CBRM’s Municipal Planning Strategy (MPS); what residents did or did not want would not matter. And as far as the municipal planners were concerned, the decision was in line with the MPS.

Council then voted 7 to 6 to approve the zoning amendment, with Councilors Clarence Prince, Earlene MacMullin, Steve Gillespie, George MacDonald, Darren Bruckschwaiger, Jim MacLeod and Mayor Cecil Clarke voting for and Councilors Esmond “Blue” Marshall, Eldon MacDonald, Ray Paruch, Ivan Doncaster, Amanda McDougall and Kendra Coombes voting against the amendment.

 

The UARB

On 23 March 2018, a group of Big Pond residents appealed the CBRM’s decision to the UARB.

The board held hearings in Sydney from 4-6 July 2018 and on 25 September 2018 at the Holiday Inn in Sydney, during which the appellants called 16 witnesses and the CBRM called two (Gillis and Neville). The board also received 42 letters of comment from members of the public — 39 opposing the rezoning.

The board conducted a site visit on 24 September 2018 and received the final written submissions from the parties on 23 November 2018.

On 22 January 2019, it issued a 95-page decision, finding in favor of the appellants. The board ruled that the CBRM, in approving Skidmore’s rezoning application, had “failed to reasonably carry out the intent of the MPS.”

I have written at some length about the decision and see no need to cover that ground again (you can just read the original article), except to note that the board was critical of the CBRM’s planners, noting that, while they depended on an interpretation of Policy 17e of the MPS in approving the amendment:

…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.

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.

 

Appealing the appeal

That, in hindsight, should probably have been that.

It’s rare for the UARB to overturn the decision of a municipal council (between 1 January 2010 and 30 September 2017, the board heard 21 appeals from residents or groups opposed to a rezoning or development decision and dismissed 20 of them). Cox & Palmer partner Kevin Latimer told me that it is also rare for the Nova Scotia Court of Appeal to overturn a UARB decision.

But on 21 February 2019, the CBRM — not, mind you, Skidmore — appealed the UARB decision to the Nova Scotia Court of Appeal.

Regional Solicitor Demetri Kachafanas told the CBC’s Wendy Bergfeldt on January 31 that the municipality was 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.

The CBRM told me that the decision to appeal was made by CAO Marie Walsh “based on consultations with the Solicitor,” furthermore it told me that Kachafanas would be preparing and arguing the case on behalf of the municipality.

 

The decision

Which brings us to Monday’s court hearing.

The Cape Breton Post is reporting that the Nova Scotia Court of Appeal made its ruling after “about 30 minutes” of testimony and I was told by someone in attendance that the judges deliberated for all of 15 minutes before unanimously dismissing the CBRM’s appeal.

I wrote at some length (let’s face it, I always write at some length) about the standard the court would apply to the UARB’s decision — that of “reasonableness,” which,  according to the Supreme Court of Canada, 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. 

Presumably, the Nova Scotia Court of Appeal found the UARB decision in the Big Pond RV case to be “reasonable.” We’ll find out for sure when the justices issue a written opinion.

 

Lessons learned?

Roy MacInnis, one of the Big Pond residents who led the opposition to the RV Park, told the Post that Monday’s decision by the Nova Scotia Court of Appeal was “a relief” more than a cause for celebration.

CBRM Regional Solicitor Demetri Kachafanas (Pictured during UARB hearing. Detail from photo by Tom Ayers, CBC)

CBRM Regional Solicitor Demetri Kachafanas (Pictured during UARB hearing. Detail from photo by Tom Ayers, CBC)

I tend to agree.

The decision does nothing to address the issues that arose during this debate — like, shouldn’t a municipality, in 2019, have an obligation to consider the environment in making zoning and development decisions?

And in a municipality that includes two First Nations reserves within its boundaries, shouldn’t Aboriginal consultation be a given?

And then there are questions about the lessons to be learned from this case, like:

Have our planners learned something about interpreting clause 17.e of our MPS?

Will they, in future, give more weight to the special status of the Bras d’Or Lakes or will they continue be as dismissive of factors like its UNESCO Biosphere designation as they were in this case?

Will they put as many hours into helping the next Chris Skidmore push a poorly conceived plan through council? (Actually, I think I know the answer to this, as I reported earlier, they are still helping the actual Chris Skidmore, providing him lists of municipal lands on which he might locate his RV Park without the bother of a rezoning application.)

Has our solicitor learned something about determining whether a court appeal is likely to succeed or will he continue to advise our CAO to pursue cases that, if the amount of time it took the court to dismiss this one is any indication, are pointless?

Will our CAO become less likely to approve such cases?

Will our council ask more questions of the planners in controversial zoning cases? Questions like: Could you give me a copy of the rule you’re citing?

And what about our Municipal Planning Strategy itself? I know it was updated in 2017, but given that it still contains statements like this:

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.

Is it possible it might need another overhaul?

I have no idea how much this court case cost us, and I suspect there is no way to find out how much time our regional solicitor spent on it, but it wouldn’t be a total loss if we at least learned something from it.