Court overturns decision

Daniel
Daniel MacEachern
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St. John’s council to vote again on seniors’ complex, judge rules

The “closed mind” of Coun. Wally Collins means St. John’s city council might have to vote — for a third time — on a proposed seniors’ complex.

St. John's City Coun. Wally Collins. — Telegram file photo

The Supreme Court of Newfoundland and Labrador on Tuesday overturned council’s rejection of an application from developer Seanic Canada to rezone property to allow a three-storey, 69-room seniors’ assisted-living complex.

The reason, wrote Chief Justice David B. Orsborn, is that Collins had made up his mind before considering the merits of the application, which was rejected 7-3 by council in 2010.

“Councillor Collins’ mind was closed primarily because of the opposition of those who elected him and not because of legitimate planning considerations,” wrote Orsborn, who said councillors are required to bring “independent judgment” to their decisions.

“Even though they are elected, councillors, in this context, are not a simple proxy for their electors; they are entrusted with the development of the municipality in accordance with the municipal plan and regulations.”

Seanic, in the court case, had asserted Mayor Dennis O’Keefe was also biased, and in a conflict of interest because his daughter’s parents-in-law lived in a home near the proposed development and donated money to his election campaign.

Orsborn rejected Seanic’s allegation of bias, ruling that his daughter’s parents-in-law’s proximity to the proposed development “does not amount to a personal interest” on O’Keefe’s part, calling the assertion “far-fetched.” Orsborn also noted that O’Keefe wasn’t present for the March 2012 vote that rejected the proposal.

Michael Crosbie, Seanic’s lawyer, said his client — Sean Callahan, owner of Seanic — is pleased with the decision, but still “perturbed” over the difficulty the proposed development has met with from council.

“This case always puzzled me, because I kept saying that the professional planners recommended this as having merit, and it’s a planning discretion, then it has to get turned down for some kind of planning reasons,” he said

.

“Then what are the planning reasons? … If traffic is not a problem, how can council say traffic is a problem?”

It’s not the first time the court has overruled city council’s decision on the development. Council first rejected the proposal in 2010. Seanic took the decision to the Supreme Court in February 2011; Justice Alphonsus Faour ruled the following June that city council should have waited for a traffic study to be completed so they could have all the information necessary to make a decision.

Orsborn suggested that should the matter come to council again, Collins should participate in the process if he’s prepared to confirm “that he does not have a closed mind on the issue.”

Crosbie said he wasn’t happy with that aspect of the ruling, and he’s not sure Seanic will get a fair shake if the company brings the proposal before council again.

“I’d like to think that. But I’ve been back there once already,” he said. “It appears to me that it’s a very hard task for people who’ve made a decision once to open their minds and vote on it again with an open mind.”

Crosbie said Seanic is still considering its options on the development.

“We’re trying to figure out what to do with this,” he said. “We have a right to go back to council yet again, but we’re concerned: can we get a fair hearing on it again?”

Messages left Wednesday afternoon for Collins and O’Keefe were not returned.

dmaceachern@thetelegram.com

Twitter: @TelegramDaniel

Organizations: Supreme Court

Geographic location: Newfoundland and Labrador

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Recent comments

  • Discrete discretion?
    January 23, 2014 - 15:43

    Tricky business for lay people to analyse a Court Descision - the context is often lost unless the decision is read in its entirety?? (and even then more so - lol) .... but ... the political context is basic: “...Even though they are elected, councillors, in this context, are not a simple proxy for their electors; they are entrusted with the development of the municipality in accordance with the municipal plan and regulations......” Another Council (CBS?) recently lamented about another planning decison... (paraphrasing): ".... how can an appeal board overturn a discretionary decision in a zone labeled 'Discretionary Use' - Does the Council have discretion or it does not?..." However I sort of agree with the Judge.... or this quote at least)... in that "discretion" does not mean "arbitrary". The Deciders have to articulate their reasoning within the bounds that they are permitted?? IMHO The applicant and those affected then have the right to read those grounds. The appellant can then challenge the grounds for the dcision rather than just decision per se? HOWEVER>> If Councillors are not "proxy" for their electorate (and all residents) - who then are they proxy for? Perhaps the answer lies the the ambiguity of the BNA Act where municipalities are referred to as "municipal institutions" under statutory control of the Province. That is "Are they Bona Fide levels of government or a popularly elected commission?" IMO Ottawa should start sorting this out before some Court does?

  • Matrk
    January 23, 2014 - 14:18

    Nick......You have it backwards. This is an abuse of power by elected councilors. They made a ruling on an application based on what they felt would be politically popular. All rulings should be based on the merits of the proposal, not on the councilors relationship with a proponent or what would appear to be politically expedient.

  • DON II
    January 23, 2014 - 09:25

    The other major problem with City and Town Councils is the way that land use planning is done in Newfoundland and Labrador. The Town Councils in conjunction with the Department of Municipal Affairs draft up municipal development plans and draft up planning areas that include many rural communities not even located inside the official Town boundaries. This is all done in secret with no consultation with land owners and residents of the areas affected. A so called "public hearing" is held by a "Commissioner" who is hired, bought and paid for by the Town. The Commissioner approves the Town plan with no changes allowed and there is no right of appeal. The whole land use planning and zoning process in Newfoundland and Labrador is unethical, secretive, improper, costly and unconstitutional. Many land owners find that their properties have been zoned as "Rural" or " Agricultural" or "Environment Protection" as a punitive measure in order to devalue the land or render the land usable only for farming or mining or render it virtually impossible to develop at all. There is no financial compensation payable to land owners by the Town for devaluing private property with its Town plan. In many files which I reviewed, large areas of privately owned land was zoned "Rural" or "Agricultural" despite the fact that the land was ideal for residential or commercial development and not suitable for farming or mining at all. In one file that I read, the land owner even submitted soil sample test results which showed his land was not suitable for farming but the Town would not change the zoning from "Agricultural". In another case a Town issued a stop work order against a residential project because it claimed the land was inside the municipal water supply protection area . The stop work order was issued despite the fact that the municipal water supply protection area had been decommissioned and protection lifted and rescinded 15 years ago when it was replaced with a large regional municipal water supply system which was located in a different area! In another file, a Town used a significant amount of tax payer money from a Grant to build a commercial marina on Crown land which the Town did not own. The Grant had not been approved for building a commercial marina and the Government had not given any approval or authorization to the Town to build a commercial marina. The files show that the Department of Municipal Affairs was regularly contacted about these abuses of power and poor management by rogue Town Councils but does nothing about it. This sort of abuse has been going on for decades unstopped by the Government of Newfoundland. In some cases, the files showed that the Government of Newfoundland actually knew of, aided and abetted the municipal abuse of power but turned a deaf ear and a blind eye! Despite recent changes of Minister and Deputy Minister at the Department of Municipal Affairs nothing has improved or changed and rogue Town Councils just do whatever they want with no fear of forensic audits or investigations being undertaken!

  • Nick
    January 23, 2014 - 08:58

    Why even zone? Some people have no problem completely abusing the justice system to suit their own ambitions.

  • Nick
    January 23, 2014 - 08:57

    Why even zone? Some people have no problem completely abusing the justice system to suit their own ambitions.

  • DON II
    January 23, 2014 - 07:50

    This kind of thing goes on all the time all over Newfoundland and Labrador. Some Town Councils are run by a local clique or a local family and they decide what and who gets approval or rejected in "our town". In most cases the adversely affected applicant or land owner does not have the financial resources to spend on months or years in Court seeking justice while the Town has the virtually unlimited backing of the tax payer to spend on lawyers to get its way in Court. I have read files from Town Councils which rejected applications for development just because the Council did not like the applicant or the Council was told not to approve the proposal before it. This is a problem that the Department of Municipal Affairs has refused to deal with and in several cases the files showed that the response from officials at Municipal Affairs was "if you don't like the way Council runs your town you can try to vote them out in 3 or 4 years time , there's nothing we can do for you."

  • Joe
    January 23, 2014 - 07:28

    This wasn't the approval of a project, but the change of zoning so the project could be accepted. If this ruling is correct, why have zoning. Just tell residents that anything can be erected next door to their property based on the whim of the other owner. One wonders if this judges ruling makes any sense.

    • A different Joe
      January 23, 2014 - 08:41

      The judge didn't rule on zoning, he ruled on council's decision-making process. Zoning isn't permanent. Neighbourhoods change, so do residents. The Municipal Plan and Regulations are there to allow the city to grow and change, but within limits. Developers are entitled to a fair shake when they apply to Council. The judge ruled Seanic didn't get that, and they should have another opportunity to do so. That's all.

  • Jon
    January 23, 2014 - 06:49

    What is the location of this proposed development?

    • Renee
      January 23, 2014 - 11:14

      Hope this helps! http://www.thetelegram.com/News/Local/2012-02-24/article-2906275/Seniors%26rsquo%3B-complex-still-unpopular/1

    • Renee
      January 23, 2014 - 11:16

      Hope this helps! http://www.thetelegram.com/News/Local/2012-02-24/article-2906275/Seniors%26rsquo%3B-complex-still-unpopular/1

    • Jon
      January 23, 2014 - 11:30

      Oh yes, now I recall....thank you.