As I wrote in a recent post, The Case of the Other Case, the UARB decided that they would reduce the weight they would give to the CBRM planner’s testimony as an expert because of what I refer to as “the other case.”
You can read about the other case here.
The UARB pointed out in their ruling, which you can read here, how CBRM planning described the main planning policy related to the Big Pond RV case as “wrong in a few important respects.”
Let us take a step or two back.
When someone like Mr. Chris Skidmore asks CBRM to create a spot zone for a development, a planner writes a report that explains the situation to Council and makes a recommendation of action.
Usually, as the UARB points out, this report would include, verbatim, the policy, in this case Policy 17e, that must be followed so that Council can clearly see its instruction to them.
In the Big Pond RV case the planner described the policy like so, [quote from UARB ruling]: Part 2, Policy 17e. of the Municipal Planning Strategy states that if zone provisions cannot be established that provide reasonable protection to residential development the application can be denied. … [Emphasis added]
But policy 17 e does not say that Council can deny an application if reasonable protection to residential development cannot be established - it says that it “shall” be denied. As the Chair of the UARB pointed out: “In fact, the Policy actually states that where reasonable protection cannot be provided, the application must be denied.”
Remember when Gandalf in the Lord of the Rings fiercely roared “You shall not pass” to that monster made of fire? He meant that the monster would not pass. He did not mean that the monster could pass, or not.
This is the most interesting part of the UARB ruling to me.
It seems to me that Council did not understand that they had a duty to deny Mr. Skidmore’s application if reasonable protection from the development’s noise and visual impact could not be provided to those who live there. The planner’s information and opinion seems to have held great sway, on its face.
Why do I say this?
I will let the Councillor’s words answer this question - well my notes are in square brackets. Also, these are accurate quotes from the remarks that the Councillors made before they cast their votes on the on Mr. Skidmore's proposal, but are not their complete remarks. You can access their complete remarks on video here.
Councillor MacLeod asked this question before he cast his vote in support of the proposed RV park: “Is it fair to deny possible taxation revenue to a cash-strapped Municipality?” [Spot zoning must respect existing laws, regardless of tax revenue.]
Councillor Gillespie, before voting for the proposed RV park, has this to say: “I agree with what [the planners] brought to us.” [The planners did not bring the accurate text and meaning of policy 17e to them, according to the UARB.]
Councillor Bruckschwaiger: “The CBRM would likely be liable, in my opinion…okay…and we could face those costs as well if we denied this application; that's the fact of it. Our Legal Department has pointed it out what we are responsible for, our Director of Planning, Karen…you know…you’ve pointed it out…it is all before us so for me, …” [Say, what?]
Councillor MacMullin: “but I will tell you, it is also my job to speak, and I understand Councillor Doncaster it’s your area, and if it was mine, it might be different again, because you are…that…those are your residents, you're there to represent them, but it is also my job to represent CBRM residents as a whole and if I add up as a whole all the conversations I've had, there are many more in favor who have contacted me.” [So, if there were people to be protected in Councillor MacMullin’s area, well that would be cool, but these people don’t even live in her area - and what about the people who have contacted her - they want this RV park that they probably know very little about, so…]
It is clear that Council did not focus like a laser on whether the people who live near this proposed park would be reasonably protected from it.
But maybe the Case of the Big Pond RV Park can be a catalyst for Council to review the process attached to zoning decisions.
I have respect for the people who serve on the CBRM Council - money is tight in our municipality, they have to make tough calls, and the roosters are way too loud here.
But I do think that there were many things that went amiss in the Case of the Big Pond RV Park and that the way forward is for Council to review the UARB ruling, see what the tribunal had to say, and make some changes so that faith is restored in the process.