Winter Street development

The town is considering proposed  plans for  8 Winter Street. Here is David Daniel’s opinion on one aspect of the proposal which he has sent us via e-mail (emphasis in this case is his) .

PROPOSED 8 WINTER STREET  DEVELOPMENT AGREEMENT

The Town Council will hold a public hearing on December 15, 2008 at 7:30 p.m. to decide whether it will permit by a Development Agreement (DA) a third dwelling unit at 8 Winter Street.  The property presently contains two dwelling units in one structure.  The owner wishes to build a new structure to contain a third dwelling unit.

The requirement for a DA is triggered because of the third dwelling unit and because the property is located in an Architectural Control Area.

Section 8.7.3.b of the new Municipal Planning Strategy (MPS) states:  “It shall be the policy of Council  . . . to ensure the following criteria are met when council is considering proposals in Medium Density Residential designation for three or four unit dwellings  by development agreement  . . .  (b) the proposal provides a landscape plan prepared by a licensed landscape architect and  includes adequate landscaped buffers required to adequately separate parking areas from adjacent residential uses.”

The applicant did not provide such a plan.  The Town Planning Staff report, at pages 3-4, has this to say about the Landscape Plan:

“A landscape plan has been provided by the developer.  It is not at this time endorsed by a landscape architect or certified landscape designer.  The DA provides that a plan with this endorsement be provided and approved by the  Development Officer prior to the issuance of a development permit for the project.  This flexibility is seen as reasonable for this proposal as:   some time is needed to identify local qualified persons to meet this new requirement, and This property is already landscaped to a high standard and the plan will be for the most part documenting this landscaping to ensure that it is retained.”

At the Planning Advisory Committee meeting held on this application the applicant stated that the requirement to have a landscape plan endorsed was “onerous.”

I asked whether the plan provided was to scale.  I recall that the answer was: Not sure.

Can or should the Council approve this DA where the application appears not to meet the unambiguous requirements of the new MPS adopted by the Council just a few months ago.

I could find no provisions in the new MPS empowering the planning staff to vary or ignore the requirements set forth in the new MPS.

Perhaps a review of the standards by which the Nova Scotia Utility and Review Board would judge a council’s decision approving or denying a development agreement might be useful.    Section 251 (2) of the Municipal Government Act provides that “[t]he [Utility and Review] Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land-use by-law or the subdivision by-law.” (My underlining.)

What then is the intent of the of the MPS concerning landscaping?

I suppose one intent might be that the MPS wished to ensure that there was good or adequate landscaping on the property where development is going to take place; to provide adequate buffers between the properties and that the landscape blend in with the neighbourhood.

However, if that were the intent, then the MPS could have simply stated, words such as: It is the policy of the Council to make sure that adequate landscaping be part of any development agreement.   Or the MPS could have stated: it is the responsibility of the planning staff to ensure that each development agreement application contains a landscape plan that adequately accomplishes the following goals.  And then list the goals.

But the drafters of the MPS did not use such language.  Nor did the Council approve the MPS with such language.

The other reading of the intent of the MPS is found in the common meaning of the words used: that it was the intent of the MPS to require that the applicant provide a plan prepared by a licensed landscape architect.  Period.

Granted, I am a lawyer and have a particular interest in seeing that laws should be written and interpreted in ways that others can follow; where there is no second guessing what a law means.  I do, however, also recognize that fairness and equity are important.

One thing I would strongly recommend, no matter what the Council decides: that it consider amending section 8.7.3 of the MPS.

David A. Daniels
December 7, 2008

Always worth listening to, David is.  “I am a lawyer and have a particular interest in seeing that laws should be written and interpreted in ways that others can follow ...” Amen to that. And we would add, don’t write laws you don’t intend to enforce.

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