It’s a win for the municipality and everyone advocating in favour of a park at Blue Mountain-Birch Cove Lakes, but one environmentalist warns it could bring the process back to square one.
The highest court in Nova Scotia ruled in a written decision released on Thursday that Halifax Regional Municipality did not effectively expropriate a developer’s land when regional council voted in 2016 to deny development rights and move ahead with the park instead.
Annapolis Group owns 965 acres of land next to the Blue Mountain-Birch Cove Lakes Wilderness Area, on the east side next to Highway 102. Most of the land was zoned urban reserve in 2006 — meaning it couldn’t be developed until 2031 without a significant council process.
Annapolis Group and another developer hoped to build a sprawling subdivision through the lakes and wilderness anyway, and applied to develop the land in 2007. Their plans cut into the municipality’s conceptual park boundary, and the two sides hired an independent facilitator to try to come to an agreement.
The facilitator, Justice M. Heather Robertson, sided with the developer.
Robertson’s report, tabled in June 2016, was not well received, with more than 1,400 people writing to council in opposition. Following a staff recommendation, regional council voted in September 2016 to refuse to start the development process and move ahead with the park as planned.
In January 2017, Halifax developer Annapolis Group Inc. sued the municipality for “alleged de facto expropriation, abuse of public office and unjust enrichment,” seeking $119 million in damages.
That claim of de facto expropriation, central to Annapolis Group’s case, is an allegation that, by not allowing the company to develop its land, Halifax took it from the developer without paying.
Lawyers for the municipality sought in 2019 to have that portion of the lawsuit thrown out, applying for partial summary judgement to dismiss the claim as without evidence and unworthy of a trial. Justice James Chipman ruled for Annapolis Group in November 2019, writing that the company’s claim “raises genuine issues of material fact requiring a trial.”
In the decision published Thursday, Nova Scotia Court of Appeal Justice David Farrar, also writing on behalf of concurring Justices Duncan Beveridge and Anne Derrick, overturned Chipman’s ruling.
To prove de facto expropriation, Farrar wrote, Annapolis Group has to prove two elements: that HRM acquired a “beneficial interest” in the land and that the municipality removed Annapolis’ “reasonable uses” of the land.
There’s no evidence for either element, Farrar concluded:
There are simply no facts in dispute that would relate to the de facto expropriation claim. Annapolis has the same rights with respect to its lands that it had prior to Council’s resolution on September 6, 2016. Nothing has changed.
There has been no acquisition of any interest in the Annapolis Lands by HRM and, similarly, Annapolis’ reasonable uses of its lands have not changed. Although HRM has published conceptual boundaries for a park, which it hopes to establish in the future, the lands and the reasonable uses to which Annapolis can put them remain exactly as they have been for many years.
Nothing that HRM did in either 2006 or 2016 has prevented Annapolis from continuing with the only uses to which the lands have ever been put. The permitted uses of the lands from 2006 remain, as does their longstanding identification as a possible future serviced area.
Raymond Plourde, wilderness coordinator with the Ecology Action Centre, has been barking up this tree for years.
“I always thought the de facto expropriation argument was full of hot air,” he said in an interview. “It never should’ve held any water, and clearly it doesn’t.”
Plourde led the charge against the facilitator’s report in 2016, and has continued to advocate in favour of a municipal park at Blue Mountain-Birch Cove Lakes since.
“There has been no expropriation, whether real or de facto, and the proof is, there’s no park,” he said. “The truth is that Annapolis has put up no trespassing signs in some quarters of their lands, and that’s the behaviour of a landowner who owns those lands.”
Thursday’s decision is vindicating, but Plourde is only cautiously optimistic.
“Although I’m delighted to see the city win in proving that there was no de facto expropriation,” Plourde said, “I’m also cognizant that this kind of puts us back to square one with regards to the Annapolis lands in that, well, we still don’t have a park do we? And what is now the route to that park?”
The municipality is presumably still willing to buy the land to create the park, but Annapolis isn’t likely willing to sell — or at least not a reasonable price.
“What we saw in the past was that the developers … have tried to extort a ridiculously, unbelievably, unjustifiably high amount of money for raw, undeveloped land in a landscape that’s going to be hard to develop if it ever is,” Plourde said.
The amount sought in the lawsuit, $119 million, “was determined by an independent valuator and is consistent with comparable expropriations and land sales in the area,” the developer said in its 2017 news release.
“What they really were after was a massive amount of profit that they presumed — and probably inflated — to make from development they would never actually do,” Plourde said.
Even during the facilitation process, the developer was asking more much more than the municipality was willing to pay. For 210 acres, Annapolis wanted $6 million. The municipality valued the same land at $2.8 million.
It was one of the main reasons staff recommended against moving ahead with the development proposal, writing in 2016, “staff advise that the valuation put forward by Annapolis Group does not reflect a willing seller and should not form a basis for further discussion.”
Using the example of Robin Wilber and Bill Fenton, who just sold their Blue Mountain-Birch Cove Lakes lands to the Nova Scotia Nature Trust, Plourde said Annapolis should now “do the right and benevolent thing,” and agree to sell the land to HRM at a reasonable, fair market price.
If not, HRM should expropriate it for real this time, he said.
“This is a legitimate thing and a power that they have,” he said. “Offer fair market value and expropriate.”
Annapolis does still have the option to go ahead with the other elements of its suit, as Farrar wrote in the decision:
If HRM has acted in an inappropriate manner, or for any other improper purpose, Annapolis is still able to proceed with its cause of action for abuse of, or misfeasance in, public office against HRM.
The next steps for either Annapolis or the municipality are unclear. The Halifax Examiner sought comment from both sides on Thursday and received none. We’ll update this article when we receive a response.
Update, Jan. 8, 2020:
The Halifax Examiner asked the municipality what this means for the park at Blue Mountain-Birch Cove Lakes and what’s next in the legal process with Annapolis Group. Municipal spokesperson Erin DiCarlo replied:
At this stage, it is unclear what impact this may have on the park.
Yesterday’s decision dismisses one of the claims in the proceeding, however, there are several other claims which have not yet been resolved. The legal proceedings are expected to continue.