Developer takes city to court

Dave Bartlett
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Lawyer says council can’t arbitrarily turn down rezoning without reason

A St. John’s developer is taking the city to court over a decision to turn down a seniors assisted-living complex in Kilbride.

Seanic Canada Inc. hoped to build a three-storey, 69-room complex between Old Petty Harbour Road, Dorsey’s Lane and Carondale Drive.

But in November, council voted 7-3 against the development after nearby residents opposed the rezoning of the land.

Michael Crosbie is the lawyer representing Seanic, owned by Sean Callahan.

Crosbie told The Telegram Friday he’s asking for a judicial review of council’s decision because it was based on the popularity of the project, or lack thereof, and not on a planning or policy reason.

Crosbie said city planning staff recommended the proposal be approved.

“If the (professional) planners say it has merit, on what basis is it being turned down?” asked Crosbie. “It’s improper for council to turn it down unless they have planning reasons.”

On the night of the vote, increased traffic was raised as a major reason for quashing the rezoning. Seanic asked the city to postpone its decision until it could get more information on traffic flow; three councillors agreed to that, but were voted down by the majority.

“There was a traffic study that said it wasn’t a problem,” noted Crosbie.

The vote followed a public meeting were dozens of people voiced their displeasure for the project.

Crosbie said that frequently happens at public meetings where “residents of the area go ballistic, (and cry) not in my backyard.”

“I fully understand. I have a backyard, too,” said Crosbie.

But he said from a legal standpoint, that argument doesn’t hold water.

“If there is a power to rezone (and) if all the residents have to do is say, ‘We don’t like it,’ then how could rezoning power ever get used?” asked Crosbie. “It is improper to vote something down because it is unpopular … or that a councillor would be unpopular if they supported it.”

He said when making rules, council can, to some extent, make decisions based on how they feel about an issue.

“But when you’re determining a rezoning application by one citizen that is opposed by others, in law it appears, by my research, you are then acting judiciously,” he said. “Like a judge, they have to have reasons for what they are deciding. Discretion has to be based on policy,” added Crosbie.

If the developer wins its case, council would have to allow Seanic to gather new information on traffic and then send the issue back to city hall for another vote.

While there have been applications before the courts to review council decisions in the past, this case could set a precedent on how much leeway council has.

“Councils … can be given discretion by legislation, but the approach of the courts is to say no discretion is untrammeled or unfettered. You always have a discretion with a policy purpose in mind,” Crosbie said.

The case will go to court on March 8 to get directions from a judge as to how the case will proceed and to set future court dates.

dbartlett@thetelegram.com

Organizations: Kilbride.Seanic Canada

Geographic location: Old Petty Harbour Road

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Recent comments

  • Bill on the west coast
    February 27, 2011 - 21:33

    To S Walsh: Dude, just how much traffic do you think that 69 seniors generate in a day? I would love to have a pic of you down there with your sign, and nary a car in sight. from what I can guess probable an extra 100 cars a week? Is the road system there so bad that it can't handle this load? It's not a case of traffic, I guess it is more a case of property values that has people up in arms.

  • Bob
    February 26, 2011 - 21:08

    The problem is that council has ignored zoning so often that following the zoning rules is such an exception that I guess any developer could complain. Heh, they have overruled zoning and the wishes of residents' many times before why not here?

  • Cliff
    February 26, 2011 - 15:11

    I hope Mr. Callahan wins this case, hands down. I am sick and tired of some of the St.John's city council staff... I think about the days of Andy Wells. He said what was on his mind, come hell or high water. You either loved him, or hated him. He was so right in saying, most of the Councillors were afraid they would lose votes come election time. When the staff of the planning department recommends that a proposal be approved, and the council members votes against it, then I wonder what this council is doing at City Hall. Some of them need to be thrown out. They have had their day. I go back to the big FORTIS development. If council sat down and reasoned things out right from the beginning, we would see that $70...MILLION development go ahead. Now we have empty buildings all along that strip. Looks good, doesn't it? All some of these Councillors, and a lot of people downtown, are concerned about is ...THE VIEW... GOD help us.....they are living in a FANTASY world.... All I hear is.....THE VIEW...THE VIEW...... Please get a life....

  • Kat
    February 26, 2011 - 10:58

    Ok firstly its a SENIORS Complex. Don't we have the right to make sure our seniors are safe and have a place to go when needed? because the people don't want it in their backyard is no reason to turn down desperately needed housing for seinors in our area. First nations have nothing to do with it so why even bring that fact up? we need housing in st. john's for our seniors or weren't everyone taught to respect their elders and protect them the best they can? what will happen when all of those people who are now fighting for this project to be stopped will be in need of housing in the years to come and they have no place to lay their heads!

    • s walsh
      February 27, 2011 - 10:04

      First off, I live in the area and would be directly affected by the project. . People are against this project because of increased traffic, not the people who would be living there. I pay about $3500 a year in property to live in that area. Is this the price I will now be charged to wait 20 minutes every morning to turn onto the main road to get to work ? I will be the first one down there holding a picket

    • Mike B
      February 27, 2011 - 18:43

      S Walsh, Seriously? You think a Seniors complex will add 20 minutes to your commute? I seriously doubt that. It's anti development people like you that make me sick. It's time for the anti-development council to go, and time for a new council that is pro development to come in. They especially need to redevelop the downtown, despite everyone's objections that it will ruin "The view".

  • TanMan
    February 26, 2011 - 09:51

    The city cannot contravene it's own Plan and development regulations, but in this case, the development satisfies all the regulations and the councillors still turned it down. This could get interesting!!

  • james
    February 26, 2011 - 09:09

    some one should tell those against this seniors building they to will be seniors one day if they are lucky. they should be ashamed of them selves

  • P F Murphy
    February 26, 2011 - 08:48

    Like so many others, the Planners are not "professional"s. Test? Where is their Bar society like Mr. Crosbie's that can discipline them and set their rates? Planners operate within the rules they are given and those rules include the option that the elected politicians have the right to over-rule them. I think "the policy" this decision is based on is pretty big - people who are elected have the duty listen to the people who elected them. It's called democracy. Maybe Mr Callahan only remembers people being told to shut up and do what they are told as in Joey Smallwood's time.

  • Clip
    February 26, 2011 - 08:00

    The project being popular has nothing to do with the location. The citizens have rights and council was voted in to protect those rights. However, seeing the rate of baby-boomers the complex is needed. Consider taking the project to another location. There is enough land in Newfoundland, just respect the First Nation's portion.

    • Matthew
      February 26, 2011 - 10:11

      "There is enough land in Newfoundland, just respect the First Nation's portion." hahahahah.........respect the first nation's......that's the funniest thing I ever heard!!! hahahahaha