Shunpiking Online Vo.3 No.2 ‘There is no right to a development agreement’ By MARTIN C. WARD

November 25, 2005
Attention: Chris Newson, HRM staff contact

Dear Councillors Adams, Rankin and Meade;

The following are matters which it is submitted should be taken into consideration by the Community Council in making its decision on this application.

The impact of the proposed project as a whole

THIS IS a major development for the communities of Ingramport and Boutilier's Point in terms of both scale and impact. If approved, it will permanently alter the character of the existing rural community and the character of the Ingramport River estuary. As such, it is very important to get it right.

The development involves multi-unit higher density housing on a narrow strip of waterfront property, which is out of character with the existing single-family rural neighbourhood.

More importantly, it involves the construction of a major breakwater intruding into the Ingramport River mouth, which is an unobstructed natural watercourse with limited usage by recreational boaters and local commercial and recreational fishermen. This breakwater will change the bay irreparably. It will be 230 feet long (even when measured, as the developer has, only from the low tidemark) with a 42 foot dog leg at the end. It will be 32 feet wide at the sea floor. It will extend at least one quarter and perhaps even one third across the Ingramport Bay at a point several miles from the river. It will be constructed on public or Crown land. It will be attached to a 370 foot seawall 30 feet wide to be constructed at the mid-tide mark which is also Crown land.

The staff report on the proposed development

The staff report generally omits the larger view of the project and instead focuses primarily on the planning details of the residential portion of the proposed development.

The report downplays the public's concern with the density and character of the residential portion in several ways. First, it relies upon the fact that the present proposed density is less extreme than it was. Second, it compares it with an average density taken from a larger region, including many areas of different character than here. The fact is that by staff calculations the proposed density is still 3.6 times greater than the surrounding community.

The report largely ignores the potential impact of the breakwater and attempts to pass off most of the responsibility for it to other levels of government and agencies. For example, the report includes a plan of the overall notification area but no plan to show the size of the breakwater in relation to the entire river mouth/bay. The report does not recite the dimensions of the breakwater . In addressing the issue of visual intrusion the report ignores the breakwater, confining its discussion to the topic of illumination. The report rejects the suggestion that any mitigation requirements for the marine portion of the project be included in the development agreement. The report says nothing as to how the breakwater and marina will alter the existing character, appearance, or use of the river mouth/bay.

There has not been any comprehensive environmental review of the proposed development by any level of government.

On the issue of the effect of the proposed development on the natural environment the staff report confuses the DFO review of the impact on the fishery with the impact on the environment as a whole. There has not been any comprehensive environmental review of the proposed development by any level of government. The DFO spokesperson made it clear at the public meeting that their review is limited to the fishery. The DFO work involved a review of the developer's engineers' proposal to compensate for the deleterious effects on marine habitat by installing some sort of concrete lobster cones, which sounded rather academic and untested in this region. As for the recommendation of the Watershed Advisory Board, the staff report rejects five of six recommendations, one because it would make the development "unfeasible".

The breakwater and marina represent an integral part of the proposed development, which must be taken into account in this application. This cannot simply be avoided by Council or staff by saying that it is the responsibility of some other level of government and pretending that it has already been dealt with at that level. This is particularly so since, as the staff report notes, the decision by the Province on the lease of the public water lot may follow directly from the approval of this application by the Community Council.

Public opposition to the proposed development

The entire community opposes the proposed development in its present form. It was apparent from the last public information meeting that the primary concern was the marina more so than the residential component. Most residents were not opposed to the development of property per se, although they would have preferred something with a lesser residential density for this rural area. However, the marina with its breakwater, which is 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 very concerning that the staff report makes no reference to this public opposition in its main body

It is very concerning that the staff report makes no reference to this public opposition in its main body. 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 concern over the proposed density in the original application, which the report says the developer has addressed. There is no mention of the strong public opposition to the marina and breakwater. The true measure of public opposition to the present proposal is for some reason relegated to the appendices by the inclusion of the written complaints only.

This Community Council, as elected representatives of the community, is obligated to take this opposition into account in making a decision. They should not impose a development on the community which opposes it, particularly when the development involves the use of both private and public land by the developer.

There is no right to a development agreement

The approval of land-use in a community is, of course, part of the democratic process, which is entrusted to elected officials who represent the public at large and are accountable for their decisions at re-election. An application for a development agreement understandably involves balancing the interests of a private landowner with those of the community. However, there is no right to a development agreement, particularly one that involves the use of both public and private land for profit. Policy criteria may be helpful, but they are guidelines only and capable of varied interpretation by staff and others. In the end, the decision is largely a political one which should respect the extent of public concern.

There is a disconcerting reference throughout this process and again in the staff report, to the effect of the 1991 development agreement. The suggestion seems to be that if you do not approve this development agreement, you will be saddled with the previous one, which remains undischarged. This is not so.

First, this developer is not interested in building in accordance with that prior agreement. The economics are not there and that is why it was never acted on.

Second, there's a very good legal argument that in the absence of a specific "sunset clause" in an agreement, there is an implied term that the agreement must be acted upon within a reasonable time and it has not been. As such, this should not even be a consideration.

Further, it should not be a consideration that the developer may have scaled back certain aspects of the development when the development as a whole remains out of character with the community.

Commitment and performance – the developer

There is an issue here of whether the developer has any long-term commitment or interest in this community. It appeared from the public information meeting that the primary objective was to profit from the development of the private and public land, transfer any continuing responsibility to a condominium corporation, and move on. The developer rejected outright any possibility of constructing six or seven high-end, single-family homes on the property or reducing scale of the marina and breakwater.

There may also be a credibility issue here with the developer. There was a great deal of public concern at the public information meeting when the developer represented that he already had authorization from the Province to lease the Crown water lot and that the marina and breakwater would proceeding whether or not the entire development was approved by HRM. When questioned further, he admitted later that this was not the case, and that he only had a letter of intent from the Province.

Adequacy of the notice of the public hearing

The staff report indicates that there will be a notification by mail of the public hearing and contains a map of the notification area. I received no notification of the hearing by mail from the municipality.

I received a copy of the notice of the meeting from a neighbour last weekend. The notice indicated that the staff report was available at a particular web site. The report was not available at that site as indicated. On calling the HRM office they offered to mail out the report, which was only received the Thursday prior to the meeting. I subsequently received a call from the planner to explain why the report was not available as advertised and indicating that this would be changed for future hearings.

In the result, it may be that members of the public either were not notified, did not have access to the staff report or did not have adequate time to consider and prepare a response to the staff report and recommendations.

Summary

In summary, is submitted that the development as is presently proposed, particularly the breakwater and marina portion, should be rejected as being is out of character in both nature and scale for the surrounding rural community. The developer should be directed to scale down the development, particularly the marina and breakwater portion, in order to receive approval for a development agreement for the property. Perhaps the intrusion into the river mouth could be reduced by eliminating the docking berths for non-residents and by reconfiguring the breakwater so as to shorten the portion extending out from the shore and lengthen the dog leg.

Martin C. Ward
72 Meisners Point Road
Ingramport, Nova Scotia