Councillors push back against provincial review board

Variance appeal process is classist

Halifax and West Community Council, Feb. 16, 2021

Meeting recap (the important stuff):

The sausage-making of municipal government was on full display at tonight’s community council meeting. The community council had to deal with two previously unknown issues. The first is that the province’s appeal review board can force councillors to vote against their will. And the second is that community engagement process for variances is classist. 

On Sept. 24, 2020, Halifax and West Community Council voted to deny the development agreement for a gas station at 1656 Prospect Road. The applicant appealed the decision to the provincial review board, the Utility and Review Board (UARB). The UARB decided, for the first time in Councillor Shawn Cleary’s tenure as councillor, to go against the will of council. This resulted in the case coming back to the community council, with an order to vote for the development they had previously rejected. Most of the councillors seemed perplexed or frustrated at this, with Councillor Smith calling it a “slap in the face.” 

In an interview after the meeting, Cleary said that usually the UARB defers to the decision community councils make, as they’re usually the best people to make these local decisions. “If we say this shouldn’t happen, then it shouldn’t happen,” said Cleary. 

For those that are unaware, the legal framework for this is complex. Cities in Canada exist because the provinces they are in allow them to. Provinces can, more or less, do whatever they want to cities. And in this case, it’s a provincial review board butting heads with a municipal government. The community council has asked for their legal options and directed the CAO to appeal this decision on their behalf. 

Even though this is a very unusual and legally complex situation no city lawyers were present in the meeting until called in to answer council’s questions. 

The other big procedural issue highlighted in today’s meeting was due to a presentation by Bill Campbell from Walk ‘n Roll Halifax. When a property owner wants to do something to their property not allowed by the city’s bylaws they need to apply for a variance. Notices are mailed out to landowners within 100m of the property applying for the variance. Campbell pointed out that only landowners are allowed to speak at the public hearing about the variance change. Those who live within 100m who would also be affected by the variance aren’t allowed to speak at the public hearings unless they make a case proving why they should be allowed to speak and the council hearing the case votes to allow them to speak. 

The policy favours landowners and excludes tenants. It isn’t an equitable policy. Councillor Waye Mason agreed with Campbell and asked for a staff report to fix it.     

They also sent the development agreement for 1029 Tower Road to council. And they fixed typos in the secondary suites legislation.  

Who said what (paraphrased): 

Mason: I’ll move the order of business but I’d like an amendment. Can we move 7.2.1 up so I can get a COVID test I scheduled because I forgot we had this meeting? 

Smith: Sure. Onto the presentation by Bill Campbell, Walk ‘n Roll Halifax. 

Campbell: I’d like to talk about the HRM’s Charter Variance public engagement process. W ‘n R Halifax is a registered society and we work with the city to make every route in Halifax safe and accessible. There’s some inequity in the public engagement process. But first a story, there’s a woman who walks to work in the hospital. She was talking to a neighbour who got a letter about a variance that he appealed. She didn’t get a letter about it and sent a letter also appealing the variance, but she wasn’t allowed, even though she lives next door to the guy who did. Is it because she was a renter? She requested to speak at the meeting instead, she dialled in, staff made a presentation, the appellants made presentations, she was asked to provide a reason as to why she should have a voice, she did, you voted, this time to allow her to speak. Her rights are not equitable to that of property owners. We’d like to see an amendment to give people equitable rights to the variance appeal process even if they don’t own land (shit’s classist yo). We don’t think there is any malicious intent, just a carry-over from old practices. We’d propose notifying all residents of a neighbourhood about variances, regardless of owning property. And make sure they can speak without having to prove that the variance affects them. Maybe a new administrative order. We’ve directed this to your committee because of the volume of variances your committee hears. The charter states what must be done for a variance application, but doesn’t prohibit an administrative process that respects those rights. Like the expansion of the notification zone from 30m to 100m. Our proposals seem to be in line with HRM’s public engagement ideals. 

Smith: Thank you for this presentation, very clear and concise (easily top five presentations that I’ve seen as far as organization of information). 

Cleary: I’m looking at the charter and the Municipal Government Act, they are vague but is this specific to Halifax? Do charter changes require provincial approval? Is this specific to Halifax or everyone? 

Campbell: I really don’t want this to be a charter change, because it would go on forever. It’s probably an issue in other municipalities, but it’s not what we’re suggesting. We’re looking for an administrative process to make it equitable. Not a charter amendment, a process amendment. 

Cleary: In the story you told, landowners vs tenants, the reason we only ask property owners is because there could be an impact to the value of the asset, what impact would it have on the tenant though? (Quality of life, Cleary)

Campbell: Impact to the asset value, is that in the charter? 

Cleary: No, that’s probably the reason. 

Campbell: That’s one factor, but that’s not everything in development. A person who rents doesn’t have that interest, but they have other interests in their neighbourhood. 

Mason: Thanks for bringing this to our attention, I’m going to be talking to the clerk and getting a staff report. I suspect it could be done administratively since the charter is stating minimums and not maximums. We’ll see if legal shares our optimism. 

Smith: Next.

Mason: *Reads agenda item 7.2.1 as written* Glad to see this chugging along. 


Smith: Next.

Cuttell: *Reads motion for agenda item 7.1.1 as written* The amendment to the development agreement, they’re proposing to move the multi-unit to the rear of the lot, it makes sense, but the back of the lot borders on the MacIntosh Run. It’s a beautiful trail that connects many of the communities, in an area that’s been designed around cars. The more connections we see to this trail system is better to promote walkable communities. I looked at the plans, and I don’t think much would need to change, except some landscaping and access points. So I’d ask for a supplementary report to put that connection into the development agreement. 

Cleary: I second that.

Staff, Thea Langille: The planner who has this file is here tonight, rather than a supplementary report, we can do this as part of the public hearing presentation, and if that’s not enough then do the supplemental report. If it’s enough it keeps things moving, and if it’s not enough you can still do it later. 

Smith: Is this a minutes thing or an amendment to the motion thing? 

Langille: I think we can do that with the minutes. 

Cleary: I seconded this, and support the idea. I think it’s prudent to ask the questions of the public first and have the developer talk about it at the public hearing to make sure it’s what everyone wants. A supplemental report would slow this down, but your suggestion wouldn’t? 

Langille: Yes. Couldn’t do a public hearing until the supplemental report came back, but you can do a report after the hearing. 

Cleary: And you have enough information to do this for the public hearing? 

Langille: Yes.  

Morse: Is there anything to ensure a vegetative buffer around MacIntosh Run? 

Langille: I don’t know, planner? 

Staff, Brittney MacLean: There is 2.35 acres of protected green space behind the building, and would still be required if the building moves to the back of the lot. 

Cuttell: I’m happy to proceed. Whatever we can do to strengthen the connectivity we should do. 

Smith: Pulling the motion for the report? 

Cuttell: Yes. 


Smith: Next, Cuttell again!

Cuttell: *Reads the motion for agenda item 7.1.2 as written* This is the first time I’ve come across an agreement where community council voted against this, and it was overturned by UARB (Nova Scotia Utility and Review Board). I’m not in support of this, but we legally have to do this. It’s the fourth gas station on Prospect Road. The type and form of development on this road is on a dated municipal planning strategy. There needs to be a plan update for this area. We have no say in this development. I begrudgingly move to approve this motion. 

Cleary: Without our lawyer here I may have to seek to defer this. We did deny the application, and UARB allowed it, why is it here? If we have to approve it, why is it here?

Langille (not a lawyer): When the board overturns a community council decision the community council is directed to approve the agreement. We can’t sign this agreement until it goes through the process, which requires you to pass it. 

Cleary: This is quasi-judicial, but judicially when a higher court overturns a lower court it doesn’t go back to the lower court. I’ve already decided, I’m not going to re-decide in favour. So I’m going to need to defer this and get a memo from legal that forces me to change my vote. 

Clerk: Solicitor might be able to join the meeting. 

Cleary: Perhaps we just defer this? I can’t vote on something I disagree with, if they’ve overruled us they’ve overruled us. 

Cuttell: Can I speak? Is the chair gone? 

Morse: I’m vice chair, Cuttell can speak. 

Cuttell: I asked for a legal opinion on this, and we can’t say the UARB is wrong in law. I understand why we have to do this, but I think we should get a supplemental report to explain the legal process here. 

Smith: I’m back, if I open the chat I lose– Hello? I can’t read the chat, just yell at me if you want to speak. 

MacDonald (is a lawyer): I need a background, what agenda item are we on?

Cleary: *Repeats his question about UARB making councillors vote on things they disagree with* What if we vote it down again? 

MacDonald: The order is to approve the UARB, and so they must follow it. 

Cleary: What if we don’t?

MacDonald: Uh….. You’d have to go through the CAO and appeal the decision. 

Cleary: So make a motion to ask the CAO to appeal this decision?  

MacDonald: I think so, hold on. 

Cleary: This is the first time I’ve seen this, normally they don’t overturn these things if we have a good reason. I’d like some sort of write up, on my motion, for what happens if we disagree with this. 

Stoddard: Do the UARB have to justify their decision? Can we get that report? 

MacDonald: You should have been forwarded it. 

Langille: It’s in the package attached to the motion. 

Stoddard: If this was deferred for a supplementary report and the CAO appeals it on our behalf, is that condition on the CAO agreeing with us? Or does he work for us? 

Smith: As I understand it if we direct the CAO to do something he has to do it. 

MacDonald: Council would have to bring the matter to the CAO. 

Smith: Cleary’s just looking for information, right? They justified their decision, but not the legal process to send it back to us. There’s no clear understanding as to why this has to come back to us? 

Cleary: Yes that’s part of it, the legal process and options. If we’re here for a vote, we have to be able to vote yay or nay otherwise it’s not a vote. But if there is an option not to approve it, what is that option? How do we do that? I want to do that.

Smith: What’s the motion? 

Cleary: I don’t know the process, so I was looking for a supplementary report, but it sounds like I want to get the CAO to stay the decision and get information on the process. 

MacDonald: It’d be an appeal, and then a stay. 

Cleary: What she said. 

Smith: You also want to include information on the process of why it comes back to council? 

Cleary: Is this a recommendation from community council to council? 

Smith: What if we defer this decision to get the information you want about the process and how to appeal? 

Cleary: Yes, if the clerk and lawyer agree. 

Smith: Does this work? 

MacDonald: Yes. 

Cleary: *Reads a motion to get a report about the process and how to appeal this appeal verdict

Smith: We have a motion the mover is happy with, seconder? 

Morse: I’ll second. I’m much more comfortable deferring this. 

Cuttell: Thanks to my colleagues for helping with this. 

Smith: This is the first time I’ve seen UARB send something back to us. It felt like we were being told to do something we don’t want to do, and it felt like a slap in the face. 

M/S/CVote – Smith, Morse, Cleary, Cuttell, Stoddard – Aye – Mason (due to COVID test)Abstain

Stoddard: *Reads motion for agenda item 7.1.3 as written* Is this just for the peninsula? 

Meg Dalton: We had the amendments approved, but found typos and missing references. It’s for the HRM, but there were issues with planning districts 4 and 5 and the peninsula. 

Cleary: Impressive copy editing to cover legal liability. 

M/S/CVote – Smith, Morse, Cleary, Cuttell, Stoddard – Aye – Mason (due to COVID test)Abstain

Smith: Next meeting March 30, 2021!

*Meeting is adjourned*    


Councillor Lindell Smith, Chair (District 8)

Councillor Kathryn Morse, Vice Chair (District 10)

Councillor Waye Mason (District 7)

Councillor Shawn Cleary (District 9)

Councillor Patty Cuttell (District 11)

Councillor Iona Stoddard (District 12)





Previous meeting minutes and current agenda:

Previous meeting

Current agenda

A former Naval Officer turned journalist, Matt Stickland is committed to empowering his community to ensure that everyone has access to the information they need to make their city a better place.

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