Thiels take Nova Centre objections to court

by Rachel Ward

The provincial government unfairly bent the rules in order to allow Joe Ramia finish the Nova Centre on time, said lawyer Victor Goldberg in court Thursday. Goldberg, of the Cox Palmer law firm, represents the Thiel family, which own several development companies and 10 percent of the commercial rental space in downtown Halifax.

The Thiels have taken the province to court over what it says was an illegal exemption given to Ramia’s company, Argyle Developments, in the summer of 2013. At the hearing today, which was presided over by Justice Frank Edwards, Goldberg called that exemption “a back door, two-tier regulatory scheme.”

When built, Nova Centre will include a hotel, an office tower, and the new convention centre. Normally, an entire development proposal must be approved by city regulators before construction begins. But in the case of Nova Centre, the provincial Minister of Municipal Relations granted Argyle Developments an exemption to the city’s land use by-law. That exemption allowed the company to build the underground parking garage of the Nova Centre development before receiving a permit to build the above ground portions of the buildings.

This two-part development permit is not standard practice, and there was almost a full year between each half.

At issue for the Thiels is that no extra public consultation was added, so they—or anyone else—could object. “You can’t defeat what’s already started,” said Goldberg in court.

Argyle, in a letter to city staff excerpted in a brief to the judge, said it dramatically changed its design plan, in part due to public consultations. Goldberg called this “the smoking gun.” Here, the company requested an exemption from the land use regulations, in order to start construction while waiting for the full development permit. Otherwise, it said the delay would be eight months to process the new plan.

The city wrote back, saying it was unable to grant Argyle that exemption. City council then voted to ask the province to step in. That’s when the minister essentially overrode city by-laws to allow Argyle to start work without all the necessary permits.

Argyle currently holds all required permits, the last one of which was issued in Aug. 2014.

“Even the province knew they were on thin ice,” said Goldberg.

The Thiel family, in the brief, said the province sped up the process not for the public good, but for “private commercial interests:” in other words, to fill up the rental spaces to be built in Nova Centre. A delay would also mean Ramia would lose $163.4-million promised by various levels of government for hitting a Jan. 2016 deadline for completion of the project.

Goldberg said the province’s exemption upset his clients, who “play by the rules. He said the precedent set is more important than motive.

“We’re not looking for any stoppage or halting or restraint in what’s going on,” said Goldberg after court. “We want a declaration that what happened was unlawful and, as I said in my argument, to say otherwise is a two tier development process.”

The province’s lawyer, Adriana Meloni, said in court the staff and minister acted prudently and within their jurisdiction.

“There’s lots of money at stake,” said Meloni. “It was felt to be in the public interest.”

Former New Democrat MLA Howard Epstein watched the full three hour hearing. His party was in government at the time of the decision, yet Epstein questions whether the public was really at the heart of the decision.

“There’s no doubt about why the province acted this way,” said Epstein, who teaches land use planning law at Dalhousie Schulich School of Law. “All three levels of government committed themselves to funding a convention centre and to funding this particular convention centre at this particular site. As soon as obstacles appeared, they were prepared to do whatever it took in order to get rid of those obstacles.”

This is an authority tug of war, said Epstein, typical of city and provincial land use bylaw disputes. Conveniently, he said, this gave city council the ability to play “fast and loose with the process under the guise of having held some public consultations.” The provincial authority to overrule a municipality’s by-laws without a vote meant the city could fix Ramia’s problem without delay, he said.

“[City council] then cavalierly brought in—inexplicably—a special deal for a special site for one particular land owner. Absolutely offensive.”

Meloni said the minister had the right to change those rules. The specific exemption comes in two orders. First, there’s a statement of provincial interest (SPI), and then the creation of an interim planning area (IPA). This area is a special zone outside of the city’s planning regulations, due to the province’s stated interest.

These orders overrule the Charter, which Meloni said is intended to give the municipality only some authority over its affairs.

“It’s broad for a reason: to give power to the province,” she said, including having the minister rule independently on such requests. Meloni said this authority is in section 214, 3b of the HRM Charter:

Development that is inconsistent with a statement of provincial interest that applies within the Municipality might occur and the Minister is satisfied that there are necessary and compelling reasons to establish an interim planning area to protect the provincial interest, the Minister may, by order, establish an interim planning area for a prescribed area.

Meloni turned down two offers to more fully explain her case. She said the province would comment once the judge rules.

The judge is expected to release a written decision in six months, but no deadline has been set.

“You’ve given me some food for thought,” said Justice Edwards, before adjourning.