When Council Rejects Staff Planning Recommendations Only One Question Ultimately Matters

Scotia Legal Services Inc. (Re), 2016 NSUARB 31 (CanLII)

Municipal governments are only permitted by law to act within the authority and power granted by legislation.  When a municipal government makes a planning decision that is not within it’s legislative authority, that decision can be challenged legally, most often by way of an appeal to the Nova Scotia Utility and Review Board (the “NSUARB”).

The Municipal Government Act in Nova Scotia is intended to and does provide municipal governments with broad authority to encourage and facilitate, sound and sustainable community planning, using such tools as Municipal Planning Strategies (“MPS”) and Land Use By Laws (“LUB”).  Once an MPS is in place, however, a municipal government must, in all of its planning decisions, reasonably carry out the intent of its MPS.  In fact, when an appeal of a planning decision of council is taken to the NSUARB,  the question of whether council’s decision reasonably carries out the intent of the MPS, is all that really matters to the outcome of the appeal. Scotia Legal Services Inc. (Re) provides an effective reminder of what can happen when a council loses sight of this simple principle and the awkward position that planning staff can sometimes be put in as a result.

It is important to remind ourselves  that municipal councils are not obligated to agree with or implement every staff planning recommendation. There may be, and sometimes are, legitimate reasons why a council might be disinclined to accept a staff planning recommendation, but those reasons cannot run contrary to the intent of the MPS.  Even if council’s rejection of a staff planning recommendation is well reasoned, rational, and perhaps even perceived on some level to be in the best interests of the community, its decision is subject to being overturned on appeal to the NSUARB if the decision fails to carry out the intent of its MPS.

Scotia Legal Services Inc. (“Scotia”) owned a property located on Gaspereau Avenue in the Restricted Commercial Zone (as defined under the Town of Wolfville’s (the “Town”) MPS).  The Restricted Commercial Zone permits a home owner to use a portion of the home for certain commercial uses.  The restricted commercial uses must be of the type and nature that they are compatible with or complementary to a residential neighborhood.

By way of a Development Agreement entered into between Scotia and the Town in 2005, Scotia expanded its Gaspereau Avenue building to comprise several residential apartments and two commercial office spaces.  The residential units rented with relative ease, but Scotia did not succeed in maintaining occupation of the commercial office spaces and they remained vacant for a significant periods of time.

Scotia then applied to amend the 2005 Development Agreement seeking to convert the two commercial office spaces to a fourth residential apartment.  The Town’s Municipal Planning Strategy permitted multi-residential unit buildings in the Restricted Commercial Zone, but limited such buildings to a maximum of four residential units per building.

Town planning staff reviewed Scotia’s application to amend its Development Agreement.  It was determined the proposed amendment was consistent with the intent of the MPS as the type of use contemplated by the amendment was permitted within the Restricted Commercial Zone.  Staff recommended approval of the proposed amendment.

When the amendment came before Council it had three essential options for responding to the staff recommendation. Council could pass the recommended motion,  amend and then pass the motion, or Council could vote to defeat the motion.  Regardless of which option Council chose, the intent of its MPS had to be kept clearly in the forefront of its decision making.

In Scotia Legal Services Inc. (Re), Town Council chose to reject planning staff’s recommendation and defeated the motion to approve Scotia’s amended development agreement.  In its reasoning for doing so, Council argued that the “intent” of the Restricted Commercial Zone in Wolfville’s MPS was to expand certain commercial uses and strengthen the downtown commercial business district.  Council’s position was that the proposed amended development agreement failed to carry out the intent of the MPS in its attempt to convert commercial space to residential space.  While the reasoning of council was clearly not capricious, and appeared in all respects to be carefully thought out and intended for the benefit of the Town, the NSUARB determined the decision failed to reasonably carry out the intent of the Town’s MPS.  The Restricted Commercial Zone expressly permitted the type of development contemplated by Scotia. Consequently, to refuse to approve the amendment automatically meant failure to carry out the intent of the MPS.

The peculiar, and perhaps awkward position for planning staff was that the evidence upon which the NSUARB made the determination that council had failed to reasonably carry out the intent of its MPS, had to be elicited from the same staff who had recommended approval of the amendment in the first place.  Not the most comfortable position for any employee to be put in.

Another important take away from Scotia Legal Services Inc. (Re) is that the NSUARB has no authority to substitute its opinion of what is “good planning” for that of council’s.  The NSUARB can only intervene where it is shown that council has made a decision that fails to reasonably carry out the intent of its MPS.

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