A judge with the Supreme Court of Nova Scotia must decide if an outgoing municipal council in Annapolis County overstepped its authority by selling land to a private developer three weeks after half the councillors were turfed out of office.
The Municipality of the District of Annapolis had paid $600,000 to buy the former Upper Clements theme park with the intention of transferring the title to Ed Farren, the promoter of a proposed Nova Scotia franchise of the Scottish private school attended by the late Prince Philip and Prince Charles. The estimated cost of the Gordonstoun school venture was $62 million.
One week before the newly elected Annapolis County councillors were scheduled to take the oath of office, the outgoing councillors and former Warden Tim Habinski passed two motions: one transferred the theme park property to E.A. Farren Ltd. The second motion gave Farren a 99-year lease on a smaller piece of adjoining property for $300,000.
The incoming council under Warden Alan Parish asked the Supreme Court to quash both decisions on the basis the old council did not have the authority under the Municipal Government Act to make those decisions.
Lawyer Kevin Latimer represented the Municipality of Annapolis County. Latimer noted the municipal election was held October 17 and once the 10-day recount period was over, the Act considers the councillors duly elected and their terms of service begin.
A meeting held November 4 by the former warden and outgoing council was therefore “unlawful,” argued Latimer, as were the council’s decisions to transfer and lease the properties to Ed Farren for a site to build a school.
“In an affront to democracy, the old Council continued to act,” said Latimer, “and most alarming of all, continued to make contentious decisions about the future of the municipality. We say that come November 4, the old council was not a lame duck — it was a dead duck.”
Latimer said the issue of council transition has never come before the courts in Nova Scotia before because new governments are generally respected by the previous ones.
Ed Farren is a retired senior manager with the City of Saint John and a friend of John Ferguson, the former chief administrative officer of the District of Annapolis Municipality. Ferguson served as a city councillor in Saint John before moving into administrative roles in St. Stephen, New Brunswick and then for Annapolis County.
Both Ferguson and Bruce Gillis, the lawyer for the Municipality of Annapolis, were fired by the current council last December.
So far, the municipality has reportedly spent an estimated $1.7 million on the Gordonstoun venture. The handling of the private school file was an issue in the municipal election and nothing has happened to move it forward since the new council was sworn November 10.
Ed Farren attended yesterday’s court hearing in person. “Our intention is to proceed with Gordonstoun Nova Scotia,” he told the Halifax Examiner. But the outcome of the court case is “relevant” to whether the park land becomes available, he acknowledged. Tuition at the other Gordonstoun schools runs about CDN$67,000 a year.
Duelling legal interpretations
Farren was represented by lawyer Barry Mason. Mason argued that the old council remained in charge until the new council was sworn in on November 10. He relied on Section 147 (4) of the Municipal elections Act that states:
The oath shall be taken and subscribed by each councillor at the first meeting of the council after his election, or within such extended time as the council allows.
According to Mason, the Municipal Elections Act permits a gap between the date of the election and when a new government is sworn. Four weeks is the maximum period before the newly elected councillors must take the oath of office. Mason’s interpretation is that the previous government remains in charge of day-to-day business until the new council takes the oath. Mason argued that the decisions to allow Farren to buy a theme park for $600,000 and lease another piece of land for 99 years fell within the confines of ordinary business.
“This was simply a housekeeping item to try and keep the project moving ahead,” Mason said of the decisions to transfer municipal lands to a promoter with whom council had been dealing since 2018. “This wasn’t trying to sneak something in just before the end of the election. It had been discussed and debated well before the election.”
Mason argued the previous council would have approved the “housekeeping item” sooner had it not been for delays tied to a subdivision approval process and COVID-19.
Mason noted the previous council had already committed the municipality when it purchased the land (not far from the town of Annapolis Royal) from the Upper Clements Park Society. Under former Warden Tim Habinski , the municipality had earlier approved a loan agreement worth $7.2 million to assist Farren. Farren’s main asset appears to be a mortgage on a home in New Brunswick.
One fact Mason did not address was that the warden and half the Annapolis county councillors who made the property decisions had been defeated at the polls almost three weeks earlier. The choice of November 10 as the swearing in date had been chosen back in July because it was the date for council’s regularly scheduled monthly meeting.
Justice Scott Norton reminded Mason he had watched the videotape of the November 4 Annapolis County council meeting in which the controversial decisions were made. “The video clearly shows that no one (none of the councillors or warden) had a clear understanding of what authority they did or didn’t have to take the actions they did,” said Norton.
The Judge has reserved his decision. It might put the last nail in the coffin. Nothing discernible has happened to move the Gordonstoun school forward in the past year.
Last month, the municipal council issued a RFP to remove the amusement rides from the Buchanan-era Upper Clements theme park that struggled for decades to turn a profit. The Zip Line is staying. Maybe another use will be found for the large recreational space, should the court whizz it back to the municipality.
Annapolis County would be hard pressed to afford a Gordonstoun franchise.
Nova Scotia does not need an institution like the Gordonstoun School.
why were the councilor incumbents not reelected? was this the only reason for their unpopularity?
While it is impossible to know why the Warden and half the incumbents were not returned by the voters, it is fair to say that the secrecy around the handling of the Gordonstoun school development was a major issue during the election camapaign. It wasn’t until earlier this year local taxpayers learned $1.7 million has been spent so far on the Project. It does not appear that the Gordonstoun parent in Scotland has advanced any money but it has endorsed Ed Farren as a potential franchisee.
IMO Gordonstoun would be an asset of considerable import and leverage for Annapolis County and indeed NS. Unfortunate that this portfolio hasn’t been executed with alacrity and competence.
If Gordonstoun has committed to anything what is the nature of that commitment and was it an agreement with the Municipality (best) or with a developer who stood to gain an outsized benefit ?
For this to go down the tubes because of petulant and petty political gaming is embarrassing. Almost criminal.
Thank you, TD Harlow! Agreed.