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• This presentation is for Plan 4035/5035, Application of Planning Law, for week 5 on February 6, 2025.

Municipal Planning Powers

• Provinces delegate land control to municipalities through the Planning Act and Local Government/Municipal Government Acts.
• The Official Plan (Municipal Planning Strategy in Nova Scotia) is the primary central planning policy document.
• Provinces maintain veto power through Statements of Provincial Interest.
• Official Plans are reviewed by the province.

Nova Scotia's MGA (Municipal Government Act)

• Stresses good governance and the provision of desirable things, and safe/viable communities.
• Municipal planning is required to be reasonably consistent with Statements of Provincial Interest.
• The defining point in planning law is the balance between provincial and local authority.

Serving Two Maters?

• Carrel describes the anomaly of council elected by citizens but controlled by the province.
• This situation contributes to a lack of respect and causes frustration for municipal politicians.

Decision of a Development Officer

• Shooters Sports Inc. v. Municipality of East Hants, 2002 NSSC 020 relates to the decision of a development officer not subject to "appeal".
• An order was sought to declare that the Land Use By-law for the Municipality of East Hants allows for the operation of a "licensed billiards club open to the public" without requiring a development permit.
• Shooters wanted to change from a "special premises liquor license" to a "restaurant and lounge license".
• A zoning confirmation letter was requested, but the Development Officer advised a development agreement would be needed.

Shooters v. East Hants

• East Hants contended that Shooters should have applied for a Development Permit.
• Shooters argued they weren't proposing a "development," meaning no Development Permit was needed.
• There was no decision made by a Development Officer that could be appealed to the Board.
• The case relied on SCC in Saint-Romuald (City) v. Olivier (2001), 204 D.L.R. (4th) 284.
• Justice Binnie recognized that permitted uses, or legal non-conforming uses, receive flexibility to accommodate real and reasonable landowner expectations brought about by normal evolution.
• The intensity of legal use can increase to adapt to market demands or relevant technology.

Shooters v. East Hants Cont'd

• It was determined that the change in Shooters' liquor license type constituted a "reasonable evolution of prior activities".
• No change in the use of premise occurred.
• Shooters can operate a "licensed billiard club open to the public".
• The Development Officer must issue the zoning confirmation letter.
• No Development Permit is required.

Current NS MPS Example

• Development proposals addressed under Development Agreements, a legally defined process under the Municipal Government Act (MGA) per the 2008 Municipal Planning Strategy.
• The Development Agreement approach is time-intensive and places discretion on Council resulting in costly delays for developers.
• An enabling plan, in contrast, facilitates a timely and simplified approval process that relies on the discretion of professional staff.
• Council intends to adopt Site Plan Approval applications requiring Development Agreements as noted in Chapter 1.
• Differentiation is based on how well proposals align with the wishes of Council in its role of representing Yarmouth citizens, not the magnitude of the proposal.

Decision of a Provincial Minister

• Special Planning Area under the NS Housing in the Halifax Regional Municipality Act.
• Provincial right to remove authority from HRM planning decisions.
• There is neither obligation to consult with or engage the community, nor statutory right of appeal.
• Application for an amendment to the Municipal Planning Strategy and a development agreement for a 120-unit development denied by HRM Regional Council in 2022.
• Refer to https://www.cbc.ca/news/canada/nova-scotia/residents-ask-n-s-supreme-court-to-overturn-provincial-approval-of-fall-river-development-1.7387576 for info.

Development Officer Mistakes

• According to the HRM Charter under section 278 (2), municipal subdivision approval is not needed if all created lots, including the remainder, each exceed ten hectares in area.
• Intention: to permit land subdivision for resource and agricultural uses without municipal development officer review.
• Requirements: no frontage requirements and lots created are not eligible for residential development.
• A development officer in HRM issued development permits for single-unit dwellings on these 10+ hectare properties.
• The permits went unnoticed until neighbors also applied.

Development Officer Mistakes Cont'd

• The ability to issue permits for residential properties without frontage on a public street does not exist, as the permit was illegally issued and has no effect.
• Politically a solution was required, resulting in amendments to the Regional MPS and several Land Use By-laws to allow residential development on the lots.
• Applies only to lots that were created before the mistake was discovered.
• Involves requirements for access easements and private road standards.
• Without the changes, this situation could lead to liability on the municipality's part due to professional negligence.

Case Study: 3012543 Nova Scotia Ltd. V. Mahone Bay et al., 2000 NSCA #93 (“Mahone Bay")

• The decision was made 6 years after *Heritage Trust *(1994), written by same judge, Hallett, J.A.
• Builds on principles in Heritage Trust (1994) and elaborates on approach to identify the intent of the MPS.
• As planners, how can we ensure the MPS intent is clear?
• Consider who needs to read and understand the MPS, including council, staff, developers, UARB, and the public.

Mahone Bay Case Facts

• Development agreement application, which involves a discretionary planning approval process, required Council approval.
• A 24-unit multi-unit dwelling was proposed on South Main Street in Mahone Bay.
• The property was designated Industrial on the Generalized Future Land Use Map (GFLUM).
• The property was zoned Industrial Shoreline by the Land Use By-law.

Mahone Bay Details

• Recommended by staff and approved by Council.
• Mahone Bay Heritage and Cultural Society appealed to UARB.
• Argued that proposals for new multi-unit dwellings can only be considered by development agreement in residential zones.
• UARB dismissed the appeal and upheld Council's decision.
• Relied on test in Heritage Trust (1994).
• Appeal at NSCA is limited to questions of law or jurisdiction.

Key Points in Mahone Bay

• A court will not review UARB decisions of fact.
  • The court intervenes if the board misinterprets legislation conferring it's jurisdiction, exceeding its authority, or misinterprets laws it must apply in its decision-making which are final & conclusive.
• An appeal will succeed if the UARB misinterpreted, failed to consider, or incorrectly applied the relevant legislation, or the Bay Town Council failed to ascribe a reasonable intent to the MPS.

Findings in Mahone Bay Case

• The intent of an MPS can be difficult to ascertain and often includes competing priorities.
• Council balances these priorities as long as their interpretation is one that the language in the MPS can "reasonably bear".
• Multiple "reasonable" interpretations of an MPS's intent can exist; there is not necessarily one correct answer.
• Mahone Bay MPS and LUB employ "stacked zoning."
  • Zones include lists of permitted uses plus “any uses permitted in the residential zone."
  • Councillors gave evidence about their intent when approving the MPS and LUB.

More Findings in Mahone May

• MPS and LUB were adopted concurrently.
• The subject property was zoned Shoreline Industrial and included in the Commercial Development Agreement Area.
• Permitted uses in the LUB include residential uses, tourist establishments, and tourist-related retail activities by development agreement only.
• MPS Policy 10.16 pertains to areas designated Industrial Shoreline.
  • Permits activities and structures which preserve the open character of the area, but not limited to private and public parks, parking areas, wharves, slipways, boathouses, and other recreational and water access uses.
  • All uses allowed in the Commercial (C) zone.
  • All uses allowed in the Industrial (I) Zone Standard.

Land Use By-Law Info

• S. 17.1 Permitted Developments.
  • Developments Permitted Subject to Industrial Shoreline (IS) Zone Standards: wharves, piers and slipways, launching ramps and similar water access uses, parks, playgrounds, open spaces and sports fields, parking lots, gazebos and bandstands to a maximum of 39 sq. metres (409 sq. ft.), boat houses, and all uses permitted in Subsection 12.1(a) [uses permitted by-right in the Industrial Zone]. Also: all uses permitted in Subsection 9.1(a) [uses permitted by-right in the Commercial Zone]
• Developments Permitted Subject to Other Requirements of this By-law.
  • None.
• Developments Permitted by Development Agreement.
  • Tourist establishments, tourist-related retail activity, office buildings and craft workshops in accordance with Municipal Planning Strategy Policies 10.18 and 7.8.

Mahone Bay and the Planning Act Section 55

• Section 55 within the Planning Act mandates that development permitted by development agreement is identified within the Land Use By-law
• MGA equivalent is s. 255(2) [64]..."when one reads the various policies of the MPS and the by-laws of the Town it is quite clear that the drafter did distinguish between the uses permitted as of right and those developments which would only be permitted by agreement."
• The assumption is that the MPS and LUB drafters knew about and properly applied this section from the act.
• If multi-units were permitted per DA within the Industrial Shareline Zone, the LUB would have said so explicitly.
• The NSCA found that the UARB showed errors when failing to recognize the differences in MPS and LUB.
• An error included distinguishing between uses permitted by-right from between uses permitted by development agreement.
  • [68] I would infer from a review of By-law 17.1 that under subparagraph (a) the Town has set out the uses permitted as of a right and under (c) developments that will be permitted by agreement. ...Under (a), the uses permitted in the Industrial Shoreline Zone are those permitted in By- law 12.1(a). That By-law sets out the uses permitted in the Industrial (i) Zone. The uses permitted in By-law 12.1(a) do not include residential uses. The uses permitted by By-law 9.1(a) (the Commercial (C) Zone), include all uses permitted in the Residential (R) Zone. However, the uses permitted as of right in the Residential (R) Zone do not include new multi-unit residential developments. Such developments can only be considered by agreement.”

Review of Findings in Mahone Bay

• Expressly permitted by DA in the Industrial Shoreline Zone (s. 17.1 (c)), include tourist establishments, tourist-related retail activity, office buildings, and craft workshops.
  • MPS and LUB can be read together if they were enacted concurrently.
• [82] In effect, the approach taken by the Planning Director and the majority of the Board was legalistic: it resembled a search for some way to allow the development to proceed, rather than a proper focus on the intent of the MPS Analysis needs to be broad & purposive, & include the entire MPS."
• It is Council’s intention to
  • allow a reasonable & customary use of this shoreline without allowing buildings to dominate; restricts new development to low-impact uses such as water access uses which is compatible with neighboring residential uses;
  • allow marine commercial uses within the existing boat house;
  • allow residential uses on the property.
• [84] When the policies are read as a whole there is a clear intent - the only developments that will be considered by development agreement in the Industrial Shoreline Zone are those described in By (touristrelated businesses, craft workshops, office buildings). *This does not include the *proposal for a new multi-unit residential building.
• failure of consider the import of Planning Act sections 53 and 55 led the Board into error
• the Board had been directed to recognized that the MPS was drafted distinguish between uses permitted as of right and those that would be considered per development.
• When one considers the MPS as a whole... there is a clear intent to restrict development of this area of the shoreline’

Heritage Trust

• The statements quoted from Heritage Trust's context were raised by the fact that the appeals were between encouraging development and preserving heritage buildings.
• A municipal planning strategy contains competing or conflicting policies that necessitate a degree of latitude in whether a council's decision for approval by agreement was consistent with the strategy.
• When the strategy is clear and is not the type of development contemplated, Board ought to set aside Council decision approving agreement.
  • “It ought not try and ferret out an intent that flies in the face of the intent expressed which is not clouded by conflicting or competing policies." A search for the intent of a municipal planning strategy requires review of by-laws implementing the strategy as those concurrent with the MPS may assist in throwing light on the intent.
• By-law 17 assists in the interpretation of Policy 10.16, while appeal had been allowed previously.

Tsimiklis (Re), 2003 NSCA 30

• Tsimiklis was awarded a development permit for an 11-storey multi-unit dwelling located within in South End, Halifax.
• Made a discretionary application to increase the maximum building height from 100 feet to 190 feet.
• Decision came after the application had been supported by city staff.
• Proposes to add eight storeys (to 19 storeys in total) with projected, “no appreciable impact on the neighbourhood". After council approved, the requests to change the height precinct occurred.
• Following the council's decision, the Peninsula South Community Association appealed to the UARB which overturned the decision. Tsimiklis appealed to NSCA, where relevant MPS and LUB occurred.
  • Both were not adopted concurrently following MPS explicitly giving Council right to amend building height the “Zoning By-law” by (Land Use By-law).
• Property abuts 33-storey Fenwick Tower (now called, “The Vuze”), where the “Non-conforming structure: build, before the adoption of MPS".
• Board noted conflicted policies in the MPS -Providing high density vs. interests of sale, the compatibility and maintaining neighbourhoods.

Continued Findings for Tsimiklis

• UARB considered the Fenwick Tower as a non-conforming use, and said it should not be considered a permanent part of the neighborhood.

• The Board found it fit that Council applied prior after it built what has already been understood as the appropriate height.

• The case rested on applying Fenwick Tower to divine as the correct intent of the MPS. [51] the very provision in the LUB that Council wished to amend was thus used by the Board to divine the intent of the MPS. NSCA: relies the test on Heritage Trust and Mahone Bay & Adds:

• “...it appears that a council_has crossed a boundary clearly stated in the strategy, the Boardintervention is triggered.

• the MPS & LUB show were not en acted show changes without The South End Area Plan (SMP) -Developed Height precinct independent.

More Tsimiklis Facts

• The Board did not assisted in the intent of the MPS guideline.

• Fenwick Tower was already reflected in the 100 foot height precinct & could have have a higher selling for choice not to from it apparent council to which a LUB in a manner.

• amendment the to the relied on the that the that amend as prohibiting, imposed principles core you Councils.

• Appeal allowed by decision of Council the as notions the that project the decision intent. - “Such notions as“appropriate development" and“undue impact” as applied to the appellant's project are for Counsel

Power of Land Ownership

• Crown not bound to municipalities' laws/rules.
  • All depts. "Shall concider the planning documents of the municipalities" (MGA).
• Environmental assessment.
• Rules for use of crown land.
• Controls over selling land and potential purchasers.

Provincial Environmental Planning/Powers

• Shared responsibilities in Parliament and local Legislatures
• Through property ownership (parks, crown land) and authority, powers are huge.
• Largescale exercises (Greenbelt Act, More Homes Faster)
• Enviromentall law + electricity (renewable and wind energy cases)

Provincial Environmental Planning/Powers

• Inside province authority
• Questions can come forth such a around provincial climate change
• Authority (statutes). -Environmental Bill of Rights of and Goals
• The climate energy 2030.
• The new zero,

Energy Facts

• Solar panels + wind energy subjects subject to Environmental noise
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Wainfleet Wind Energy Inc. v. Township of Wainfleet, 2013 ONSC 21940NSC

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Friends Of South Canoe Lake

The Following Facts:

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