|
Appeal to the Nova Scotia Utility Review Board
Form A - Notice of Planning Appeal
IN THE MATTER OF:
An Appeal under Section 247 of the
MUNICIPAL GOVERNMENT ACT
Case 00640: Development Agreement - 7990 St. Margaret's Bay Road, Ingramport, NS
DATED at Halifax, Nova Scotia this 3rd day of February, 2006.
Sent by fax: NSURB, 424-3919, original to follow by mail
Reasons for appealing:
| 1) |
The proposal is a significant alteration for the communities of Ingramport and Boutilier's Point in density, scale and impact, and contradicts and contravenes the Halifax Regional Municipality's (HRM) Municipal Planning Strategy (MPS) on which approval was based. HRM received dozens of submissions from residents at the November 28/05 public hearing, which HRM has on file and recorded.
If approved, the proposal will permanently alter the character of the existing rural community and character of the Ingramport River estuary: it will impose a downtown streetscape on an inappropriate rural site with significant effects also to St. Margaret's Bay. The proposal's base is the imposition of multi-unit high density housing on a narrow strip of waterfront land (Attachment 1) which, is out of character with the existing single-family rural neighbourhood. Land use for this property -- according to the MPS, acreage, density, scale, existing area land use, zoning and effect on all aspects of water usage -- is consistent with a proposal to build three to four single-family units, and has been determined to be largely acceptable to the community.
In brief, this proposal is in violation to the MPS and in conflict with:
MRR-4 Policy criteria: |
| a)
f) |
grossly contrasts with existing design and scale, and it is not compatible to any degree with nearby land uses or density
the impact of traffic, also in MRR-7
MRR-7
|
|
a) |
the site's characteristics do not make the location suitable for the scale, density and impact
|
|
b) |
the potential for adversely affecting nearby residential uses is substantial, nor do the staff comments address visual intrusion or littering
|
|
c) |
layout and the design of the facility is highly inconsistent with local use, existing area/regional housing
|
|
g) |
HRM staff comments were based on a flawed Environmental Assessment submitted by Jacques Whitford June 2004, for which a 13-page response critique was submitted to HRM and the province and was not considered
|
|
h) |
HRM incorporates contradictory statements on the allowance of a pump-out facility
|
|
j) |
the intended appearance of all buildings and structures in this proposal or past proposals which the developer intends to incorporate at a later date do not relate to nearby uses
|
|
a) |
a) the proposal does not conform with planned bylaws and regulations, nor is there relation to HRM's new proposed regulations for infill
|
|
c) |
c) the proposal conflicts with type of use and all other relevant matters of planning concern
|
|
d) |
d) the site is not suitable, particularly any need for infill or with applied setbacks
|
|
e) |
e) "any other relevant matter of planning concern" which includes all the concerns HRM has heard from the community consistently since the first planning meeting and has not responded to or incorporated concerns, including noting said concerns in HRMs council meetings, such as the April 2005 at a public meeting of 98% against the proposal and a survey conducted of the area (Attachment 2).
|
| 2) |
The HRM report downplays the public's concern for density and character of the residential portion in several ways: it relies on the fact the present proposed density is less extreme than originally proposed months prior. Second, it compares the proposal with an average density taken from a larger region, including many areas of different character, such as along Hammonds Plains Road -- some 15 kilometers away. The fact is by staff calculations, the proposed density is still 3.6 times greater than the surrounding community. In August 2005, an HRM planner said 20 local properties were surveyed and it was determined a 2.5 ratio/density was acceptable using a Hammonds Plains comparison at 3.5 per acre. A ratio/density of 2.5 per acre is high for this area: although it is existing land use with one single-family home, the Destiny property was not included as one of the properties or Crown Land or Rails to Trails. Given Crown Land and Rails to Trails is such that will/should never be considered for mutli-use development, it should not have been removed from the surrounding land use study. Additionally, the ratio does not represent an equal surrounding proportion -- in the HRM rationale for increased density was determined for the proposal's best case at density success: homes were included on only the most populated end of the property toward Meisners Point Road (zoned MRR 1).
|
| 3) |
Council was provided well in advance with statistics of a community, house-to-house survey (Attachment 2) of opinions relating to questions within the designated HRM notification area, later expanded from the original 18 residents who were notified of public meetings. All survey respondents consented to its release to authorities. The survey results were presented at the hearing along with an offer to provide written, specific concerns of residents within the notification area. (Council declined resident's written comments which would become part of the public record, contrary to bylaws and planning rules for public consultation.)†
|
| 4) |
The number of 12 townhouses was agreed to by the developer and HRM prior to the November 28 public hearing and motion made by a councillor at the meeting -- any public input and presentations at that meeting regarding how the proposal conflicts with the MPS was not considered.
|
| 5) |
There continues to be conflicting jurisdictional issues regarding the deferred marine portion of the proposal, with each level of government -- municipal, provincial, federal -- relying on inaccurate environmental assessments and giving up legislated purview and public interests in favour of the developer's efforts to acquire a Crown water lease in the past and plans to acquire the same in the future.
|
| 6) |
Planner Macklin Hancock who holds numerous honours for his work in new communities and towns throughout the world, such as Don Mills, Canada's first planned community, the original Clayton Park, the later expansion of the City of Halifax, numerous developments in Newfoundland, and the restoration of the Fortress of Louisbourg brought more than 50 years to this issue in a letter to Mayor Peter Kelly and the planning office, explaining how this proposal does not meet with the MPS. Hancock wrote, "growth is natural and inevitable, but can be done badly or done well .... there are countless examples where poor decision making and design -- driven by short-term considerations -- have resulted in permanent damage, or, at the very least, many years of heartbreak and expensive remediation to restore. It is in the hope of preventing such a future that I urge decision-makers to consider carefully all aspects of the Ingramport/St. Margaret's Bay proposal, to the only aim of rejecting this proposal."
|
| 7) |
There is a disconcerting reference throughout regarding an undischarged outstanding Development Agreements (DA) from 1991 and 1995. The developer and the planning office stated that if the community does not approve this development, they have the right to apply for a permit the next day for a previous DA. In being 15 and 11 years old, these DAs clearly conflict with the MPS. In the absence of a specific "sunset clause" as in every other jurisdiction, signed at a time when the then Halifax County was anxious for any kind of development, there is an implication that any agreement must be acted upon within a reasonable time. As such, these outstanding DAs should not be considered and the appellants request they be discharged.
|
| |
The planners have relied upon the pre-existing Development Agreement DA-1&3 05-91-01 and its subsequent amendment DA-1&3-12-95-01A1 in making a determination that the current proposed development is a reasonable use of the land. These previous development agreements were obtained under a previous planning regime without adequate public consultation and are flawed ab initio. In planning and land use law, once outstanding DAs are abandoned they cannot be referred to and to rely upon them thwarts public consultation requirements by handicapping the process with a bias from the earlier agreements, that do not conform with the MPS. It should be noted that the development agreement is a new agreement not an application to vary an existing agreement, but to replace same. To consider past agreements in present context of new agreement should not be permitted.
|
| 8) |
Density examples used to justify that multi-residential developments exist in the planning district are skewed. These include a seniors' residence, seasonal summer cottages and a motel unit now used as permanent housing. Council was provided with photos, measurements and information regarding the same prior to November 28 hearing. The relevant density is that of the surrounding waterfront residents, as this is where the primary impact will occur and this does not conform to the MPS. All other density references are irrelevant and irresponsible.
| | 9) |
Matters relating to setbacks are not consistent with bylaws, nor with written recommendations of the Halifax Watershed Advisory Board.
| | 10) |
The accessory building in the development agreement exceeds height, setback, and square footage as defined in bylaws and is not consistent with the MPS. Its use exceeds the intent of the bylaws for boathouses.
| | 11) |
Parts of the development are permitted within the 2.5 meter above high tide watermark especially the septic system.
| | 12) |
The proposal allows for units of 3 to 4 to be constructed together -- an installation not be permitted in the surrounding land use and zoning, nor that exists in the area/region. The development is surrounded with less dense zoning restrictions including part of the land within the development (Attachment 1). The development is not consistent with current or historical land use. In effect, to permit the development, it could change zoning to high density within an area where single housing exists in much less dense zoning. This could easily allow for further expansion, as the land could be rezoned. The planning office indicated zoning could change from industrial to Multi-Use Residential and the developer would then apply to build the remaining 15 units, including the boat launch, 31 slip, marina and breakwater and special event facility.
| | 13) |
View planes exist adjacent to and over the property. Across from the land on the leeward side exists public parkland used as Rails to Trails, part of Canada Trail System with an interpretive look-off established. High density will make that site unavailable and unattractive as a view plane for the public.
| | 14) |
The wharf/boardwalk concept as approved with regard to inter tidal zone is not within the jurisdiction of HRM. At 370 ft long and unspecified width, it is to be located on the waterfront on the bank of an estuary of a river classified as a Significant Habitat Specie Area by the provincial Department of Natural Resources. Development is contrary to sound ecological watershed development. All land within 100 feet of water is considered by HRM to be "sensitive" and does not conform to the MPS. Council was provided with a written report from community steering committee and a copy of Environmental Design Management report prepared for planning department in April 2005. The recommendations/information in E.D.M. report is not consistent with this developments approval in the coastal cultural concept as defined for the Ingramport area.
| | 15) |
Open space in this proposal exceeds the 35% standard: the 50% permitted in this proposal is excessive. Parking provisions exceed bylaws of 1.5 per unit.
| | 16) |
Safety concerns exist with no ingress or egress information. The entrance and exits onto Route 3 are a safety concern for any high-density development, as noted in the MPS, and with 2 spaces per unit and public parking, this increases daily traffic use. Inadequate information was provided to address these concerns.
| | 17) |
Potable water issues regarding quality and quantity are unresolved and are a serious concern to residents. The proposal will increase the demand at site by 1000% to 2000%, in an area where the immediate residents already are experiencing problems with volume and quality. This issue appears to be of no interest to any office of HRM, yet has significant ramifications. Section 1.1 of a Nova Scotia Environment and Labour document state that, under the Environment Act, approval is required if withdrawal exceeds 23,000 litres per day. This is 23 metric tonnes, a sizeable amount, yet an estimate of withdrawal of one litre less than this does not require provincial government approval. The threshold does not take into account the size or quality of the groundwater reserves throughout the province. This standard is deficient for a 2004 provincial standard and inappropriate within the context of water and health issues presently experienced in Canada. Health and Sustainability are incorporated into the mandate of HRM, and this is inconsistent with the vagaries of provincial groundwater standards. For example, section 1.2 indicates that NSEL does not require that withdrawals below the threshold of 23,000 liters need to be sustainable. This section also states:
|
|
a. |
withdrawal rates must not cause unacceptable environmental, economic or social consequences.
| |
b. |
existing users are not required to modify operations to accommodate the new wells.
| |
c. |
withdrawal based on first-come, first serve basis.
| |
d. |
allocations are based on current, rather than projected needs of the applicant.
|
| |
The guidelines continue, yet it would appear that all such guidelines established by NSEL do not apply to situations where withdrawal rates are estimated (by non-government engineers) to be below the 23,000 litre threshold, and in no way provide any form of protection for existing well users. These guidelines seem archaic by any measure. The clause "grandfathered in" is a frequently used loophole by so many developers and indeed by HRM. We are dealing with potential health issues when dealing with allocation of groundwater use; if there is the slightest possibility drinking water may be compromised, approval of additional groundwater removal must be denied. In terms of national standards for food and drugs, any suspicion that human health may be compromised results in cessation of production of that item as well as removal of existing stocks; not so in Nova Scotia for drinking water, as long as the applicant claims to withdraw slightly less than 23,000 litres from one well. It would seem several wells can be drilled to mask actual withdrawal volume.
HRM is required to address the glaring deficiencies in drinking water standards. At best, it would appear that the site can barely tolerate the existing single house. The comments by the non-government engineer for Destiny at the November 28 meeting generated concern: stating the proposed development would require only 2% of the aquifer from Ingramport to Black Point, followed by another statement that the drawdown would affect only the immediate wells. This is an acknowledgement that groundwater is not immediately free-flowing throughout the aquifer, and therefore the figure of 2% is quite misleading. HRM (and NSEL) should be held accountable, particularly should affected residents seek valid legal recourse.
HRM did not provide an objective consideration of the abundance and quality of the groundwater available to the development. The preliminary report by Jacques Whitford for Destiny developments was not made available until minutes after the vote was taken on Jan 16, 2006. Council advised the public after the vote that it was available from the developer therefore council was aware of its existence. HRM has not considered the 2004 provincial guidelines of the Nova Scotia Department of Environment and Labour with respect to groundwater withdrawal. The possibility of saline intrusion with reverse osmosis treatment required for the development and nearby wells, will result in substantial increases in withdrawal estimates from the aquifer.
MPS 7.2 policy indicates that Destiny's decision to not include appropriate stormwater management system to deal with the parking lot runoff prior to its entrance into the marine watercourse is in contravention of the spirit of the plan. Sewage treatment facilities similar to that proposed are not designed to handle elevated levels of oil, grease, glycol and grit associated with stormwater; a separate stormceptor or other appropriate technology was not included in the plan.
|
| 18) |
The developer has not stated a long-term commitment or interest in the community. The primary objective is to profit from the land and transfer any continuing responsibility to a condominium corporation. This is of great concern to the community for which there is no assurance or guarantee, given the referral to remediation for the septic system and admitted destruction of fish and bird habitats. Indeed, the reputation and credibility of the developer is in question as the developer is on record at a public meeting stating that he already had authorization from the Province to lease the Crown water lot and that the marina and breakwater would proceed whether or not the entire development was approved by HRM. When then read a letter at this meeting, dated June 2004 from the Department of Natural Resources that he did not have approval, and being questioned further, he again proclaimed he had approval and did not bring his approval letter to the meeting. Correspondence later acquired through Freedom of Information between the developer and the province also reinforced the fact he did not, and as of February 1, 2006 does not have approval.
|
| 19) |
Monetary considerations should not override the proposal's conflict with the MPS. The developer has not indicated to the community the expected sales prices for which real estate and tax professionals have estimated to be, for waterfront townhouses, based on 2,700sq feet with basement approximately $400,000 to $500,000 with HRM tax assessment value approximately $4,000 to $5,000 per year per unit x12 for revenue of some $55,000 a significant consideration now, and in allowing additional units.
|
| 20) |
The entire community opposes the proposed residential and marina development, (from the original 18 notified by HRM, 130 area surveys were completed) as noted at all previous public meetings and at the November 28 meeting with 440 people in attendance. Most residents were not opposed to the development of property per se, preferring appropriate single-family homes as consistent with the MPS. The marina and breakwater, proposed to be built on public land, was strongly opposed because of its potential to dramatically alter the character of the river/bay. It is disconcerting the HRM staff, meeting and council reports make no reference to public opposition. The only reference to public concern in the main body of the report is to alleged concern over uncertainty with respect to the former 1991 agreement and over the proposed density in the original application, which the report says the developer addressed. There is no mention of the strong public opposition to the marina and breakwater. Public opposition to the proposal is relegated to the appendices by the inclusion of written complaints only. This HRM council, elected as representatives of the community, is obligated to take public opposition into account in making a decision. They should not impose a development on the community, which opposes it based on significant violation with planning procedures, the MPS and scientific reasoning.
|
| 21) |
The development is proposed to be located on land zoned Industrial 1 and the current development agreement allows keeping the same zoning in place.
|
| |
Bylaws indicate multi-residential development is not permitted. In addition, MU 2 zoning and MU1 do not permit multi-residential development. It appears lot coverage permitted is consistent with a commercial development not residential. The lot adjacent to the development agreement plan was once cut off the Industrial 1 land for a single family residence and currently remains zoned Industrial 1. Lands across estuary are zoned MRR 1 and have view plane to the development site. This development and zoning are inconsistent with bylaws and current surrounding land use and zoning.
|
Process concerns
Although not falling under the MPS except to clarify errors and omissions in process by HRM, there were significant community concerns, such as:
Confusion and insufficient time for public input: this contributed to the public having diminished opportunity to present information. Bylaws and MPS rules require the opportunity for the public to have input. The 144 page report was released, of which a summary was provided, with delays in posting on the HRM website, with 30 days for the public to then for a public hearing. Given that many in the area do not have computer access or can print a 144-page document, when contacting HRM for a printed copy, were told .20 cents a page must be submitted prior.
At the October 24/05 set date for the public hearing council advised the public the November 28 hearing would not permit speakers past 9pm and individuals were allotted 5 minutes. The public was advised this would be strictly adhered to; if further time was needed, another date would be set. This was confirmed with the Clerk's office prior to the meeting. At the November 28 hearing attended by 440 people, without input, council ruled to go past 9pm, subsequently ending the meeting at approximately 11pm. This meant many presenters such as lobsterfishers, already attending after dumping day, parents with sitters, workers, etc. had to leave, including many who signed up to speak, creating confusion and diminished opportunity for public participation. In addition, people who spoke earlier who had to leave, had a right to hear all matters discussed, and who also understood the meeting would be extended to another date.
The councillor's query to the developer if 12 units were possible was more than a surprise to attendees. In subsequent discussions, it was learned HRM met with the developers prior to the hearing to determine what number of units would be acceptable. At the end of the hearing after this motion when the public understood the matter to be set over for negotiation, council was asked when further public input would be possible. The public was advised further input was not deemed necessary.
After the October 24/05 set date, Councillor Gary Meade told one resident that all speakers at the November 28 public hearing were to be experts in their field, an inaccuracy later clarified with the planning office. After the hearing, Councillor Meade told a resident that submissions made were invalid if they were not signed, although HRM protocol states contact information is sufficient.
The approval of land use in a community is entrusted to elected officials who represent constituents and are accountable for their decisions particularly at re-election. An application for a development agreement understandably involves balancing the interests of a private landowner with those of the larger and resident community. However, there is no "right" to a development agreement using public land for profit. Any decision is largely a political one, which should respect the extent of public concern. Councillor Meade said he didn't care about the constituents concerns as he was not intending on running for re-election.
At the November 28 hearing, there was confusion with regard to sign up sheets as many attendees thought you had to sign up to enter the meeting: this led some to believe since speakers taking 5 minutes each would take up from 7 to 9pm and the list was lengthy they would not have the opportunity to speak. Thus potential speakers were dissuaded and some who signed had to leave, having assuming the 9pm end time would be adhered to and they'd get to speak at the subsequent meeting.
Additional
The development agreement regarding density and "a community within a community" concept is not consistent with HRM planning department's Mission Statement, which forms the basis of Municipal Planning and Strategy. The proposal is also not consistent with numerous other HRM commissioned reports such as the March 2005, Cultural Heritage Values model or the September 2004 Natural Step Sustainability Analysis.
Proposed signage exceeds bylaws and permitting signage as proposed and identifying units: "Mahone Bay Haven" does not reflect the cultural heritage of the area known as Ingramport.
The development agreement does not require oil-grit separators for parking as recommended by the Halifax Watershed Advisory Board, nor was this board apprised of community concerns during any presentations.
Stone walls are being permitted to exist between units of unspecified length and height. There is no written description other than side-view diagram. Walls joining housing is unacceptable in this area and visually interferes with view planes. This would make the development seem more dense than proposed.
Attachments
1) Aerials
• land for proposed development
• regional aerial (see "3" directly below for location of proposed land change)
2) Community Survey in HRM notification area (expanded from original 18 notified)
SEE ATTACHED
3) Covering letter (3 pages) from the St. Margaret's Bay Stewardship Association and 13-page critique Review of the Environmental Screening Assessment June 2004 by Jacques Whitford for Destiny Developments
SEE ATTACHED
Case 00640: Development Agreement - 7990 St. Margaret's Bay Road, Ingramport, NS
|
