Can’t or won’t part 2

The Local Government Resource Handbook   is very useful in sorting out what the Wolfville Municipal Planning Strategy (MPS) really says the Town will or won’t allow. We hope all the councillors have read it.

What the Town says it intends is laid out in the MPS. But what it really means, i.e. what it will enforce, is spelled out in the zones the MPS creates and its land-use by-laws. The MPS and the land-use by-laws have the force of law and their wording has legal significance. Unless the “intention” is backed up in zoning and the by-laws they are meaningless and unenforceable.

For example, there might be a policy to limit development on lands
designated environmentally sensitive (e.g., an area with an excessive
slope or an area of known flooding). By itself such a policy means very little. To make this policy operative, additional policies might indicate Council’s intention:
e.g to create a conservation zone in the by-law with a limited range of permitted uses and then zone the environmentally sensitive areas conservation;

So, just as an example, if you look at Wolfville’s MPS you will see that it made amendments to its MPS to remove the conservation zone.

In adopting a MPS, Council does not commit itself to undertaking any of the projects described in it  . However, if it does undertake those projects (such as a development agreement) it cannot undertake it in a manner inconsistent with the MPS and its by laws. And a municipality cannot act contrary to its MPS such as allowing a type of development that the Strategy states will be prohibited.

So in reading the MPS to find what policies and intentions the Town really stands behind or restricts you must look for the words “shall”, “will”  “permit” and “prohibit”.  For example : Most of the Dykelands will be designated Agricultural (A) and zoned Agricultural, A, to permit agricultural uses, recreational activities, parks, and municipal water and wastewater treatment facilities. Permanent buildings, other than small buildings accessory to a permitted use, will not be permitted. Rezoning of the agricultural lands in this area will not be permitted.  But it then goes on to add its intent to allow some development in other portions of the dykelands near the Town core and to zone it accordingly – Commercial, Industrial or subject to  development agreement..

If a Strategy does not have policies respecting a matter contained in the land-use by-law, that portion of the by-law may be held to be invalid….and conversely, if the intent of  a land-use policy is not carried into the implementation of By-law, it lacks enforceability.

The guts of the MPS are in Implementation policy 10 and 11 where it states: It shall be the intention of Council, … to have regard for a whole string of worthy things including conforming to the intent of the MPS,  the height, mass, or architectural design of proposed buildings, ensuring that conflicts are
avoided or are mitigated by the project design; consideration of view planes,
ensuring that the proposal does not cause environmental damage including: (i) pollution of soils, water, and air, (ii) excessive erosion and/or sedimentation,
(iii) interference with natural drainage and watercourses. etc, etc,
etc.

However the phrase shall have the intention or shall be the intention has no force. As the handbook states:

Usually policies that deal with the expenditure of money are written as intentions, not as mandatory prescriptions or regulations so that Council is not committed to the action.…’. In general, it is recommended that all policies employ the former approach and begin with ‘It shall be intention of Council….’. Wolfville’s MPS follows this recommendation.

So the fine words in the Town Vision Statement (an appendix to the
MPS) and many of its intentions don’t really mean too much unless backed up by zoning and the land-use by-laws
.

The MPS and its by-laws are open to amendment. The present MPS and
land-use by-laws were last reviewed in 2000/ 2001 (This review apparently was not completed so the present MPS has not been fully reviewed since 1996) . The MPS must  be reviewed at a minimum of every five years. In addition the Council may deem it appropriate to amend the MPS when: a) there is a need to change policy in light of additional information, study, or changing conditions or public attitudes; b) a zoning amendment will violate the Future Land Use Map and the change is shown to be beneficial after appropriate study and consideration of other MPS policies; c) there is a conflict with provincially adopted land use policies.

If some councillors are frustrated by the refrain ” we can’t do
that” because of the MPS and its by-laws,  they do have a chance to
focus on what changes might be beneficial to the town in the land- use
strategy review which should be underway. They should also know that
development agreements trump zoning and can be used as a way around
zoning requirements and restrictions unless specific legally
enforceable criteria are included in the MPS and by-laws.

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