An obli­ga­tion to ap­peal

Kings County mayor says dan­ger­ous prece­dent for mu­nic­i­pal­i­ties could be set by Lake Ge­orge UARB de­ci­sion


It’s not over yet.

There will be an­other ap­peal in the case of four recre­ational ve­hi­cles lo­cated with a cot­tage on two ad­ja­cent lots at Lake Ge­orge.

On Dec. 20, 2017, the provin­cial Util­ity and Re­view Board (UARB) granted an ap­peal from own­ers Dono­van and Juanita Methot, Mike and Lori Stod­dart, Jeff and Wendy Carty and Rick and Heather Rood, over­turn­ing Kings County coun­cil’s ear­lier de­ci­sion that de­nied a de­vel­op­ment agree­ment.

The UARB ruled a de­vel­op­ment agree­ment is con­sis­tent with Kings County’s Mu­nic­i­pal Plan­ning Strat­egy (MPS) poli­cies and or­dered the coun­cil to ap­prove a de­vel­op­ment agree­ment.

This would al­low the own­ers to keep four RVS on their two lots in ad­di­tion to an ex­ist­ing cot­tage – which is the cur­rent use of the prop­erty at 103 O3 Road. The sub­ject prop­erty is zoned sea­sonal res­i­den­tial. The de­vel­op­ment doesn’t meet land use by­law cri­te­ria for de­vel­op­ment as-of-right or by site plan ap­proval.

“On the facts be­fore the board, in this case, the board finds that, on a bal­ance of prob­a­bil­i­ties, coun­cil did not con­sider the cri­te­ria of the MPS (Mu­nic­i­pal Plan­ning Strat­egy) poli­cies for de­vel­op­ment agree­ments,” a writ­ten de­ci­sion states.

“Con­se­quently, the board finds coun­cil’s de­ci­sion did not rea­son­ably carry out the in­tent of the MPS.”

The UARB hear­ing, which was held be­fore mem­ber Dawna J. Ring, took place on April 19, 20 and July 7, 2017.

At a spe­cial coun­cil meet­ing on Jan. 10, Kings County coun­cil­lors emerged from an in-cam­era ses­sion to vote in favour of ap­peal­ing the UARB de­ci­sion to the Nova Sco­tia Court of Ap­peal. Coun. Brian Hir­tle, who ear­lier lost his doc­tor over the con­tro­ver­sial RV is­sue, along with Coun. Bob Best, were the only coun­cil­lors to vote against the ap­peal.

Board “ex­ceeded ju­ris­dic­tion”: mayor

Kings County Mayor Pe­ter Mut­tart said in a Feb. 13 in­ter­view that the mu­nic­i­pal­ity has filed its no­tice of ap­peal on sev­eral grounds.

Mut­tart said the 2017 UARB hear­ings were be­fore a “one-per­son board” and the board “ex­ceeded its ju­ris­dic­tion in a num­ber of ways.”

He said the board sub­sti­tuted its own opin­ion for that of mu­nic­i­pal staff in terms of whether or not there would be a de­vel­op­ment agree­ment.

The process for a de­vel­op­ment agree­ment in­volves staff pre­par­ing an agree­ment that comes be­fore coun­cil for ap­proval but that never took place. Mut­tart said, from the mu­nic­i­pal­ity’s point of view, this wasn’t ap­peal­able.

He said the board also placed a re­verse onus on the ap­peal.

The onus in an ap­peal to the UARB is on the ap­pli­cants.

“The board, in its de­ci­sion, de­ter­mined that the onus was on the mu­nic­i­pal­ity, which is ac­tu­ally re­vers­ing the true onus, and so that was an er­ror in law,” Mut­tart said.

Mut­tart said that once a writ­ten no­tice of ap­peal is filed with the ap­peals court, the court sets a date for a hear­ing.

The hear­ing date has yet to be set.

Mut­tart said if the county didn’t ap­peal the UARB de­ci­sion and this stood as a prece­dent for the way in which the board could ex­am­ine de­ci­sions of mu­nic­i­pal­i­ties in the fu­ture.

It could af­fect all fu­ture de­ci­sions of Kings County coun­cil and other mu­nic­i­pal coun­cils, he said.

In this sense, Mut­tart said Kings County coun­cil “felt an obli­ga­tion to ap­peal it.”

The back­ground

Kings County coun­cil voted in favour of a rec­om­men­da­tion from staff on Dec. 6, 2016, to refuse an ap­pli­ca­tion from the pro­po­nents to en­ter into a de­vel­op­ment agree­ment to le­gal­ize the land use. The pro­po­nents filed a no­tice of an ap­peal with the UARB on Dec. 20, 2016.

Coun­cil heard from plan­ning man­ager Laura Mosher in May 2016 that staff de­ter­mined there is no en­abling pol­icy within the MPS to fa­cil­i­tate draft­ing the pro­posed de­vel­op­ment agree­ment, as the coun­cil had pre­vi­ously di­rected staff to do.

The UARB ruled on Dec. 20, 2017, that the coun­cil was er­ro­neously ad­vised by staff that the MPS didn’t have any poli­cies that would per­mit it to en­ter into the de­vel­op­ment agree­ment and that an amend­ment to the MPS was nec­es­sary to do so.

At the UARB hear­ings, Dono­van Methot and Lori Stod­dart pre­sented ev­i­dence on be­half of the prop­erty own­ers. The own­ers had pur­chased the two ad­ja­cent lots in Septem­ber 2013. The east­ern lot had an ex­ist­ing cot­tage that the own­ers re­paired and a 1,000-gal­lon sep­tic hold­ing tank.

In the spring of 2014, the own­ers cleared most of the east­ern lot, part of the western lot, and made a sec­ond drive­way from the western lot to the O3 Road. Af­ter lev­el­ing the ground with gravel, the own­ers placed four RVS in a semi-cir­cle. They in­stalled a sec­ond 1,000-gal­lon sep­tic hold­ing tank. Two RVS are con­nected to each tank, which are pumped out an­nu­ally.

Methot tes­ti­fied that they mainly use the This graphic from a Novem­ber 2015 County of Kings staff re­port to the plan­ning ad­vi­sory com­mit­tee shows the ap­prox­i­mate lo­ca­tion of the RVS on the sub­ject prop­er­ties at Lake Ge­orge.

cot­tage and, gen­er­ally, only use the RVS for sleep­ing. He said they didn’t ob­tain per­mits for the de­vel­op­ment be­cause they didn’t know they had to. They were apolo­getic and wanted to work through a res­o­lu­tion.

The county re­ceived a com­plaint about the sit­u­a­tion in July 2014. The own­ers were di­rected by the county to re­move the four RVS by Oct. 31, 2014, to com­ply with the Land Use By­law.

Af­ter county plan­ner Ian Wat­son in­formed the own­ers of a pro­vi­sion in the MPS for a de­vel­op­ment agree­ment, the own­ers ap­plied for a de­vel­op­ment agree­ment in May 2015.

In his tes­ti­mony to the UARB, Methot ex­pressed how the process was very per­sonal and hurt­ful to the own­ers. He said the new mayor cam­paigned on a plat­form that specif­i­cally ref­er­enced their de­vel­op­ment.

There were nu­mer­ous state­ments in the me­dia and ac­cu­sa­tions about the own­ers that were per­sonal and hurt­ful and/or which Methot and Stod­dart stated didn’t hap­pen. Methot said the own­ers opted to keep quiet dur­ing these per­sonal at­tacks and did not speak out about them.

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