C. A. No. 02835 NOVA SCOTIA COURT OF APPEAL Jones, Hart and Matthews BETWEEN: CITY OF HALIFAX and OAKRIDGE CONSULTANTS LIMITED Respondent Gerald J. Goneau for the Appellant Peter A. Mclnroy for the Respondent Appeal Heard: June 15, 1993 Judgment Delivered: June 15, 1993 THE COURT: Appeal dismissed per oral reasons for judgment of Jones, J.A.; Hart and Matthews, JJ.A. concurring. The reasons for judgment of the court were delivered orally by: JONES, J.A.: This is an appeal from a decision of the Nova Scotia Municipal Board directing the City of Halifax to amend zoning map ZM‑17 for the purpose of increasing the height precinct on the property at 5222‑30 Tobin Street, Halifax to 75 feet. The property is owned by the respondent company. The property is located within an R‑3 (multiple dwelling) zone established by the city's land‑use by‑law. The existing land‑use by‑law makes the property subject to height precinct or limit of 45 feet as set out in zoning map ZM‑17. The Generalized Future Land Use Map of the M.P.S. designates this property and most of the properties in the block as "High Density Residential". The density allowed in the R‑3 zone is 250 persons per acre. The property is 3/4 of an acre and can accommodate density of 180 people. The respondent proposes to build an apartment building on the property. The present height restriction would allow six story building plus an extended roof. The property can accommodate nine story building within all existing zoning regulations except the height precinct. The respondent applied to the city for variance on the height restriction to 75 feet. The application was reviewed by the city's planning staff and favourable recommendation was made to Council. After the necessary public hearings the application was refused by Council. Only two members of Council spoke during the debate, one in opposition and one in favour. The opposing member was primarily opposed to change in the height restriction because of the residential nature of the area. The developer appealed to the Board. The Board held public hearing during which it heard several area residents opposing the change. Mr. John Hanusiak, member of the city's planning department testified as follows: "All that this application amounts to, is an increase in two floors, 20 feet, from here to that wall perhaps, in extra height. The larger development meets, and meets comfortably, every by‑law requirement of the R‑3 zone; angle controls, parking, open space, unit composition. What staff held, is that if six‑storey, plus pitched roof is deemed acceptable, under the Municipal Development Plan, as an appropriate use, then we would find it difficult suggesting, or defending decision that would say, adding two additional floors, which meet all the requirements of the by‑law, would be considered inappropriate. And that's long description. The two paragraphs that we deal with we know what the as of right is. We know that's appropriate. This is not giant leap, and not huge request, for two additional floors, building volume how it relates, how it impacts." In lengthy decision after reviewing the evidence the Board concluded: "The Board has carefully considered the policies of the M.P.S. It is the intent of the M.P.S. that residential development occur in the City of Halifax. It is the intent of the M.P.S. that specific areas be designated as High Rise Development. It is the intent of the M.P.S. that such development occur without undue impact on adjacent land use. It is the intent of the M.P.S. that the subject area is included in designated High Density Residential area zoned R‑3 with height precinct as defined of 45 feet. It is also the intent of the M.P.S. that such development would not have an undue impact on adjacent land use. The Board has made finding that the incremental affect of the amendment to increase the height precinct has minimal impact on adjacent use. Council could not refuse an as‑of-­right development on the site. Therefore, Council's decision to refuse to amend the height precinct because it would have an undue impact on adjacent land use cannot be considered to carry out the intent of the M.P.S. The Board has found no other policy of the M.P.S. which would support Council's decision not to approve the amendment. As required by Section 70(6) of the Planning Act, the Board hereby determines that the decision of Council cannot reasonably be said to carry out the intent of the M.P.S. and allows the appeal." The city has appealed from that decision. The appeal is restricted to question of law or jurisdiction. In its factum the appellant has raised the following issues: "1. The standard of review to be applied in an appeal taken on question of law. 2. Did the Board in its decision dated February 19, 1993 err in law and exceed its jurisdiction by misconstruing or misapplying the provisions of section 70(4) and 70(6) of the Planning Act.?" Sections 70(4) and 70(6) of the Planning Act provide as follows: "70(4) The Board shall determine whether the decision of the council reasonably carries out the intent of the municipal planning strategy. 70(6) The Board shall not allow the appeal unless the Board determines that the decision of the council cannot reasonably be said to carry out the intent of the municipal planning strategy." Essentially the City argues that the decision of Council was consistent with the intent of the municipal planning strategy and therefore the Board was not entitled to interfere with the decision of council. We are satisfied after a careful review of the decision that the Board did not exceed its jurisdiction in reviewing the decision of Council. It is clear from the decision that the Board carefully reviewed the relevant provisions of the Planning Act in coming to decision. In the result the appeal is dismissed without costs. J.A. Concurred in: Hart, J.A. Matthews J.A. NSMB-11-92-P NOVA SCOTIA UTILITY REVIEW BOARD This page contained graphical images which may only be viewed in the original decision. IN THE MATTER OF: An Appeal under the Planning Act, R.S.N.S. 1989, c. 346, by OAKRIDGE CONSULTANTS LIMITED from decision of the Council of the City of Halifax made May 28, 1992, which refused to approve an amendment to the Zoning Map to increase the height limit from 45 feet to 75 feet to allow the construction of 9‑storey apartment building at 5222‑30 Tobin Street, Halifax. BEFORE: MICHAEL G. JOHNSON, F.C.A., Chairman, CHARLES J. McMANUS, P.Eng., Member. COUNSEL: PETER A. McINROY, LL.B., on behalf of the Appellant, Oakridge Consultants Limited; LEANNE W. MacMILLAN, LL.B., on behalf of an Interested Party, Dr. Petra Mudie; GERALD GONEAU, LL.B., on behalf of the City of Halifax. HEARING DATE: July 2, 1992 September 23, 24, 1992. DECISION DATE: February 19, 1993. DECISION: Appeal Allowed. The Nova Scotia Municipal Board (now the Nova Scotia Utility and Review Board) first scheduled hearing of this appeal C.A. No. 02835 NOVA SCOTIA COURT OF APPEAL BETWEEN: CITY OF HALIFAX ‑and- OAKRIDGE CONSULTANTS LIMITED Respondent REASONS FOR JUDGMENT BY: JONES, J.A.
This was an appeal of a Municipal Board decision which overturned city council's refusal to allow the respondent's application to vary the height restriction on a proposed project. The proposal met all requirements of the Municipal Planning Strategy. Dismissing the appeal, that the Board did not exceed its jurisdiction in reviewing council's decision.