Municipal Planning Appeals: Know the Odds
Cranes. Scaffolding. Orange vests and hard hats. Construction around Halifax keeps cruising along at an exciting pace. Development, however, can include some tricky municipal planning bits. Knowing how to navigate the approval process – including the odds of success on appeals – can make or break a project.
Those thinking of appealing a municipal council decision to the Nova Scotia Utility and Review Board – be they developers or concerned citizens – should think carefully before proceeding.
Our review of the data for the years 2010-2017 (the “test period”) shows that, in most instances, appeals fail, with developers faring somewhat better than citizens who try to have a council decision overturned.
The truth is that the hurdle to overturn a council decision is high. But that didn’t stop 36 appeals from actually getting to the Board (many others were withdrawn) in the test period, less than one-fifth of which were granted.
The appeal process is well established.
Before developers can rezone properties or enter into development agreements, they need Council approval. Council’s decision to accept or refuse an application can be appealed to the Board. For developers whose applications have been rejected, or for everyday citizens who are unhappy with a project in their neighbourhood, the Board is where the fate of a project will be decided.
On rezoning or development agreement appeals, the research indicates the Board shows significant deference to Council’s decision-making. In the majority of cases, appeals are dismissed, and Council’s decision on a project will stand.
What the NSUARB Can Do
The Board has jurisdiction to hear planning appeals from Council decisions under both the Municipal Government Act and the Halifax Regional Municipality Charter. Appeals can be taken by developers whose rezoning or development agreement applications have been rejected. They can also be initiated by an “aggrieved person.” Aggrieved persons who bring appeals will usually be nearby residents of a proposed development site who argue that Council’s approval of a project will negatively affect them.
In rezoning or development agreement cases, the Board can overturn both Council approvals and Council refusals. But, the Board only has limited power to do so. The Board cannot simply substitute Council’s decision with its own. Council’s decision can only be overturned if it does not reasonably carry out the intent of the Municipal Planning Strategy, or if it conflicts with the land-use by-law. The Board respects these limits on its power, and does not take lightly reversals of decisions made by elected municipal officials.
The Board’s limited authority leaves significant power in the hands of Council. This can be seen as problematic. Councillors often have little formal planning expertise. At the same time, the Board’s mandate recognizes that those who were elected to govern a municipality have the ability to control development in their jurisdiction in accordance with plan policies.
What are the chances of success on appeal to the Board? How long does it take to get from a Council decision to a Board decision? Recent planning appeal decisions from the test period provide some insight on both fronts.
We looked at all rezoning and development agreement planning appeals to the Board since January 1, 2010, up to and including September 30, 2017. More than 60 of these appeals were initiated in that time. Many of these were withdrawn, discontinued, or settled. Of the appeals started, 36 resulted in Board decisions. Of those 36 decisions, 21 were appeals by residents or groups who were opposed to Council’s approval of a rezoning or development agreement, 15 were appeals by developers after Council refused a rezoning or development agreement.
The appeals were largely unsuccessful. In 36 decisions, the Board only overturned Council seven times. On closer examination, the Board dismissed 20 out of 21 appeals by residents or groups seeking to have project approvals reversed. For unhappy neighbours living near a development site, the odds are strongly against stopping a project that Council has approved. Meanwhile, developers appealing Council rejections were successful six out of 15 times – a 40% success rate. That should sound a cautionary note for any developer considering the appeal route to proceed carefully and with good guidance around the Board’s limited ability to overturn Council decisions.
The research suggests that Board appeals are tough. For concerned citizens appealing as aggrieved persons, the statistics paint a fairly bleak picture. For developers appealing refusal decisions, the Board results are somewhat more encouraging, although an appeal to the Board is not a fresh kick at the can. The Board cannot substitute its decision for Council’s. It can only overturn a refusal or approval if Council’s decision does not reasonably carry out the intent of the Municipal Planning Strategy.
The timeline from a Council decision on a project to the Board’s appeal verdict varies. Our research suggests it takes about three months on average after a Council decision to have the Board hearing, and then another three months for the Board to release its decision. Developers who want to bring an appeal to the Board should expect about half a year for the process.
While each case turns on its own facts, our review indicates getting a Council decision overturned is not easy. For developers who want to rezone properties or enter into development agreements, your best bet is to bring a thoughtful and compelling presentation to win Council approval in the first instance. Should Council reject it, the appeal route can be a viable option where Council runs afoul of its own planning policies. Should Council approve it, the results indicate it’s unlikely to be overturned by the Board on appeal. In either case, forewarned is forearmed.
Kevin Latimer, Q.C. of Cox & Palmer, practices in the areas of municipal and planning law, administrative and public law litigation and can be contacted at (902) 491-4212 or email at firstname.lastname@example.org.
1 Survey Methodology: The survey was conducted by compiling all “planning” appeals initiated with the Board from January 1, 2010 through September 30, 2017 on the UARB’s Public Documents Database at uarb.novascotia.ca. Any entries not referencing “zoning” or “development agreement” in the “Title – Description” field were excluded. We take no responsibility for any miscategorizations of the entries in the database that may have affected the results. We re-categorized matter PL-16-09 to “dismissed” based on our interpretation of the substance of that decision.