Three problems with council’s approval of the Wellington development

This is the second in a three-part series.

Halifax council’s approval of the Wellington Street development raises lots of questions. Yesterday, I looked at a fundamental contradiction in councillor Gloria McCluskey’s justification for her vote in favour of the project: She said that city planning staff had saddled Dartmouth with a far worse project (the Irishtown Road developments), and in comparison the Wellington Street development, which staff wanted to kill, looked good. But McCluskey herself had overseen the planning changes needed to make Irishtown a reality, so her argument doesn’t hold water.

If all goes well, tomorrow I’ll examine how and why many councillors seem to be in the hands of the development industry.

But today I want to quickly raise three issues that bothered me through council’s debate on the Wellington project: how disqualified councillors stayed for the debate, how councillor Matt Whitman had seemingly contradictory votes on it, and how council disregarded advice from its own legal counsel.

Disqualified councillors

Councillors Darren Fisher and Brad Johns were disqualified from voting on the Wellington issue because they were not present for the public hearing. As laid out in council’s Procedures for Public Hearings (Appendix A):

(19) Only members of Council present for the entire Public Hearing are permitted to vote.

(21) Any member who fails to attend for the presentation, or any portion thereof, from a member of the public is not eligible to vote.

(22) Any member who leaves the council chamber during the debate, including during any clarification by staff, the developer or members of the public, is not eligible to vote in respect of those matters considered quasi-judicial in nature including development agreement applications and any associated Regional Planning Strategy, Municipal Planning Strategy, Secondary Planning Strategy or Land Use By-law amendments, site-plan appeals, variance appeals, heritage registrations, and heritage de-registrations.

That’s right and proper: council is supposed to debate the issue after considering the input from the public, so if they don’t actually hear that input, how can they have a considered vote? Typically in such cases disqualified councillors remove themselves from council chambers because sticking around gives the appearance that they are trying to affect their colleague’s decision-making. In the past, I’ve raised objections when disqualified councillors go sit in the gallery (I think they should leave the room entirely), but at least they haven’t stayed at the council table itself.

Last week, however, Fisher stayed right at his place in the council oval throughout the entire debate and vote. Johns was there for the first part of the debate, but left after a bit. By my estimation, both councillors acted inappropriately.

Matt Whitman’s change of heart

Barring some improper influence exerted by their presence in council chambers last week, when I first looked at the final vote I didn’t think Fisher’s and Johns’ disqualification made any difference one way or another. In order for the planning changes to be changed, proponents needed the votes of half of council. That’s the total council, not just the councillors qualified to vote. So, proponents needed nine votes, and they got nine votes. On the face of it, it wouldn’t have mattered if Fisher or Johns had voted, no matter how, because the nine “yes” votes were there without them.

Looking back at the October vote on whether or not to have a public hearing, however, tells a more nuanced story. With three exceptions, all councillors voted the same in October as they did last week. If they voted for the public hearing, they voted for the planning changes. If they voted against the public hearing, they voted against the planning changes.

Here’s the October vote tally for a public hearing:

Here’s last week’s vote on the changes in planning rules:

Two of the three exceptions are Fisher and Johns. That’s because they were not allowed to vote last week. But Fisher had voted for the public hearing, and Johns against it. If the same for-for/against-against pattern held perfectly, and if Fisher and Johns had been able to vote last week, then the vote would have been nine-to-seven in favour of the changes, and the changes would have been approved regardless.

But the pattern did not hold. Because Fisher couldn’t vote last week, had the pattern held perfectly, the vote would have been eight to seven, one vote shy of approval—and so the Wellington Street development would have been killed.

The third exception to the vote pattern was Matt Whitman. Unlike all other councillors who voted last week, he alone voted one way at the October meeting and a contrary way at last week’s meeting: he voted against the public hearing and for the planning changes. He was the swing vote.

What explains Whitman’s change of heart? I left him a message yesterday asking exactly that. He didn’t immediately respond, and we’ve been playing phone tag ever since. (I’m not sure why can’t just write me an email.)

One could speculate that the “for” faction on council saw that with Fisher’s absence they didn’t have the votes to carry the motion, and so they set to work to change the usually pliable Whitman’s vote. Such vote-trading is talked about privately by councillors, but I have no evidence that it occurred in this instance.

And, there’s some evidence that Whitman supported the development all along. Strangely, he seconded Linda Mosher’s motion to hold the public hearing before he voted against it, and during the debate over the issue he very briefly noted that he thought the development was compatible with the street.

So maybe he’s just a confused councillor. When we finally connect, I’ll post Whitman’s response.

Ignoring the advice of council

When the public hearing was held on December 9, council heard four hours of testimony. Then, as is practice, the developer was asked for any last comments. That’s when a representative from Dino Capital suddenly announced that the company had decided to build a project 40,000 square feet smaller than the one everyone had just spent four hours talking about.

This put city staff in an impossible position. They had seen no plans, and there was no application for the supposedly smaller buildings, so they couldn’t comment on its merits or faults. Council, too, was in a bind: it was facing a set of planning law changes related to a 198,000 square foot development, but something supposedly smaller was supposedly being proposed. As was pointed out both by legal staff and by councillor Jennifer Watts, if council approved the changes thinking that a smaller development was coming forward, Dino would still be in its rights to build the larger development.

That’s when councillor Stephen Adams put forward an amendment, reducing the allowable square footage at the site to 154,000 square feet, a 44,000 square foot reduction from the originally proposed 198,000. But city solicitor John Traves several times insisted that that change amounted to a “substantial” change in the proposal, and so would require a completely new public hearing. Traves said this many times, but the issue is best captured in this exchange between councillor Tim Outhit, Traves, and Adams:

Outhit: Now, John, my question is: Is this amendment to say that the maximum square footage being dropped from 198 to 154, is that first of all, a motion that would be in order, and would that require another public hearing?

Traves: Yes. Any amendment of that nature is in order. You’ve heard from the public, you’ve heard from the proponent, and if a member of council even on their own initiative wished to make an amendment, they’re free to do so and if council supports them, that’s fine. Would it require a second public hearing? In my view it would. In the sense that it is 30 to 40,000 square feet carved out of the project and essentially negates the developer’s ability—despite they’re having made this proposal come forward—to build the project that this council has considered and looked at in coming to it. The difficulty, and I will be frank, the difficulty is it’s not clear-cut because you have a joint hearing of a community council and of regional council. And regional council’s debate this afternoon is with respect to the municipal planning strategy, but in giving consideration to the entirety of the matter, I feel that you would be much better served to take a more cautious approach and to have this matter returned for a second public hearing, if you wanted to make a change of this nature.

Adams: I’m fully prepared to put the amendment on the floor to reduce it by 40,000 square feet because community council doesn’t have that flexibility. The other thing is that, looking at the process as we’ve been following it today, what we’ve been told by legal, and some of the discussion suggest that we have a public hearing and the influence the public has is simply to convince council to agree or not to agree, because you’re not allowed to make any changes, unless you want to have another public hearing to hear what they have to say the next time. So this could be in perpetuity. I would think that we make this change which is still less than the maximum allowed—if we were going 40,000 more than absolutely, that’s above the maximum, but we’re going the other way. So, I would ask that we get rid of the rest of the clarification questions and move on…

[emphasis added]

Adams made a motion for the smaller square footage restriction, and council approved it on the same nine-to-six vote as the overall motion would later be approved. No second public hearing was scheduled.

But it gets weirder. Later in the meeting, Adams suddenly announced that he wanted the square footage reduced further, to 141,000 square feet. Staff explained that Dino Capital had submitted a development application for a 198,000 square foot development, but the square footage on the blueprints totalled 181,000 square feet. Dino then said the 40,000 square foot reduction applied to the latter figure, not the former, and so they only needed 141,000 square feet. Seems like a huge mistake for someone planning to build a 10-storey building. One wonders if the walls will align properly.

Adams’ argument is that anything smaller is better from the neighbours’ perspective, so this can’t possibly be a legal issue. We’ll see. I suspect that if the neighbours take this issue to court, the lack of a second hearing will be one of the issues raised.