The provincial Utility and Review Board (UARB) has overturned a decision by Halifax regional councillors to deny a development application in Middle Sackville.
In November 2021, the North West Community Council — comprising councillors in districts 1, 13, 14, 15, and 16 — considered the application for a four-storey, 52-unit apartment building at the corner of Swindon and Hanwell drives. That’s just off Margeson Drive, near Highway 101.
The developer, Sunset Plaza Inc., owned by Marzieh Ansari Shourijeh according to the Registry of Joint Stocks, wanted to amend an existing development agreement for the site. That agreement allowed the developer to use the site for commercial buildings. When the property didn’t sell for that purpose, Sunset Plaza pivoted, instead looking to build residential units.
Municipal planner Paul Sampson recommended in favour of the request to amend the original development agreement, telling councillors it was reasonably consistent with the Sackville Municipal Planning Strategy (MPS).
But there was significant opposition from property owners in the Sunset Ridge neighbourhood, of which the property is the last piece being developed. They worried about traffic, parking, and perhaps most significantly, the capacity of the local school, Sackville Heights Elementary School.
The community council held a public hearing where three of those property owners spoke.
Lisa Romano told the councillors the school is already “extremely overloaded.” Eric Romano said it “looks like a trailer park now at that school” because there are so many portable classrooms outside.
Coun. Lisa Blackburn agreed with their concerns. She said residents moved to the area expecting a commercial development, and the application “flipped the script on them.” Along with rows of single-family homes, there are two apartment buildings in the neighbourhood, but Blackburn said there was never supposed to be a third.
There are six portables at the elementary school, she said, and there are no plans to change the boundaries or build a new school.
“And I know that that’s not supposed to factor into our decision, but community planning is not about looking at projects about considering applications as one-offs. We have to consider what’s going on holistically. It’s the drip, drip, drip effect,” Blackburn said.
“I just cant support adding more residential — unexpected residential — development in an area where the elementary school is already six portables deep with no correction for that course in sight.”
Blackburn’s colleagues on the North West Community Council (Deputy Mayor Pam Lovelace and councillors Cathy Deagle-Gammon, Paul Russell, and Tim Outhit) voted unanimously against the proposal. In their rejection letter, they cited the school capacity issue, along with “concerns related to traffic, incompatibility with the existing neighborhood and the original intent of the neighborhood.”
The developer appealed that decision, and the UARB held a hearing in March. The board heard from the developer, the municipality, and an intervenor representing nearby residents. The municipality sent a lawyer, but didn’t really oppose the developer’s appeal.
In its decision, written by board member Roberta Clarke and released on Wednesday, the board sided with the developer, finding councillors didn’t have a good reason, rooted in planning, to deny the application.
The issue of school capacity was prominent in the hearing and the decision, with the developer’s lawyer, Nancy Rubin, and the intervenor, Keir Daborn, bringing evidence on the issue.
Daborn filed a class cap report from the Halifax Regional Centre for Education (HRCE) from October 2021, showing the number of classes over the provincial guidelines for class counts.
“The report shows that Sackville Heights Elementary School had 11 classes from Grades P-2, six of which were within the cap, and five of which exceeded it. In Grades 3-5, five of the eight classes were within the cap and three were not,” Clarke wrote.
Based on the report, that is an above average number of classes exceeding the cap, a percentage of 45.5% in Grades P-2 and 37.5% in 3-5.
Jacob Ritchie, former director of operation services for HRCE (and before that, former HRM planner), testified for the developer. He told the board that HRCE plans for 0.176 students per apartment building unit.
“Based on the demographic data, Mr. Ritchie agreed that a 52-unit apartment building would have 8.3 children. He estimated that rounding to eight children, based on the 14 grades in the school system, this would result in four children in elementary school, two in middle or junior high school, and two in high school,” Clarke wrote.
“He did not consider the proposed building to be a large development and would not have advised HRM that HRCE could not meet the capacity.”
Councillors are able to consider school capacity as part of their decision-making process, but in this case, Clarke found there was no evidence that it was a problem.
“The Board is persuaded by the evidence of Mr. Ritchie and Mr. Sampson that, based on demographic data, the number of children who may live in the proposed building can be adequately accommodated in the existing schools,” Clarke wrote.
“There was no objective evidence to the contrary before the Board. The Board concludes that Council’s reasons relating to schools, as stated in the refusal letter, do not reasonably carry out the intent of the MPS policies.”
Clarke went a step further in the conclusion, ruling that the community council needs better justification to vote against a staff recommendation.
“The Board observes Council should have ‘good planning reasons’ to disregard the recommendations of the planning staff,” Clarke wrote.
“Neither HRM Counsel nor Mr. Daborn provided any evidence of good planning reasons for the refusal. Based on its analysis of the facts of the proposal in the context of both MPS, the Board concludes that the Appellant has met the burden of proof, on a balance of probabilities, and has persuaded the Board that Council’s decision is not rooted in the MPS policies, and therefore cannot be said to reasonably carry out their intent. As a result, the Board allows the appeal and orders Council to approve the proposed amendment agreement which was before it, as set out in the Appeal Record.”
This is one of a few recent UARB decisions overruling HRM’s community councils.
In a similar ruling in March 2021, the UARB overturned a joint decision from the North West and Halifax and West community councils to deny an application from Cresco Holdings Ltd. for the West Bedford area.
“In this case, the reasons provided by the Community Councils made no attempt to connect the general concerns they identified to specific polices in HRM’s MPS or the existing development agreement,” the board wrote.
Good decision.
This smacks of over-reach at best and a brewing scandal at worst (maybe … it could possibly even be worse).