City not done with development in legal limbo

Andrew Robinson
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Environmental advisory committee rejected project, citing wetland protection

The developer who recently filed a $9-million lawsuit against a diocese of the Anglican Church over lost business opportunities may have over-estimated the likelihood there’s money to be made from land at the centre of the dispute.

This parcel of land is being disputed in court between Powder House Hill Investments and the Anglican Church’s Diocesan Synod of Eastern Newfoundland.

Powder House Hill Investments Ltd. filed a statement of claim earlier this month at the Supreme Court of Newfoundland and Labrador.

It’s arguing an agreement of purchase and sale was in place with the Anglican Church’s Diocesan Synod of Eastern Newfoundland and Labrador for 16.5 acres of undeveloped land located east of Portugal Cove Road behind Penney Crescent and Halley Drive in St. John’s. The church claims no such agreement is in place.

In the statement of claim, the company says it was informed in the summer of 2013 that the Department of Environment and Conservation would provide a permit for residential development on the land. Powder House worked with various levels of government and sought the expertise of professionals after it paid the Diocesan Synod a $10,000 deposit in 2008 to be applied to the purchase price.

According to the company, that permit would satisfy the first two conditions of an agreement reached in April 2008, one of which pertained to the purchaser (Powder House) successfully rezoning the land for residential development.

However, that land has not been rezoned. According to Coun. Danny Breen, several things would need to happen for that to be so.

“First of all, before it goes anywhere now, it has to come back to the planning committee,” said Breen, who represents Ward 1, an area that includes the undeveloped property.

At that stage, it could be either recommended for rejection or approval. If council approved the application, the rezoning would still need to go through a public consultation process and a public hearing chaired by an independent commissioner before coming back to council.

“This is an application where it’s so early in the process,” said Breen. “It’s in the preliminary review stage.”

Committee rejected proposal

Powder House first made an application to rezone the land for residential development in 2009. In July of that year, the planning committee asked the company to prepare an environmental assessment report. That report would consider whether the property was still a wetland area and assess the development’s impact on wildlife and vegetation and downstream storm sewers and river systems. The land borders the Virginia River.

On Feb. 5, 2013, the developer met with the city’s environmental advisory committee. A presentation based on a report prepared by consulting firm Stantec on the status of the Synod wetland was made during the meeting.

Two current and former committee members confirmed to The Telegram that the committee recommended rejecting the application given the property is a significant wetland that serves as a natural habitat for animal and plant life.

The wetland is reportedly a habitat for teaberry. According to a Department of Environment and Conservation document, there are only four known locations for teaberry in Newfoundland.

The committee also noted that taking into account past development-fuelled encroachment on such wetlands, conserving those that remain is all the more necessary.

According to minutes from a March 19, 2013 council meeting, Powder House subsequently requested that the application for rezoning be deferred so it could review the environmental advisory committee’s report.

“They haven’t come back from that,” said Breen.

William (Bill) Leger Clarke, who owns Powder House Hill Investments, is currently facing 38 counts of fraud over $1,000 and a charge of conspiracy to commit an indictable offence. Those charges relate to his business dealings as a co-owner of Myles-Leger, a construction company that declared bankruptcy in 2004. That matter is scheduled to return to St. John’s provincial court April 7.

The Telegram attempted to contact Clarke, but he could not be reached for comment.

Twitter: @TeleAndrew

Organizations: Department of Environment and Conservation, House Hill Investments, Supreme Court Anglican Church Stantec Newfoundland.The committee Powder House Hill Investments

Geographic location: Newfoundland and Labrador, Portugal Cove Road

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Recent comments

  • Don II
    February 23, 2014 - 10:53

    The municipal land use planning regime in Newfoundland and Labrador is clearly anti development, prejudiced against those who own privately owned land and is bizarre at best and incompetent, unethical or corrupt at worst. I have reviewed a number of municipal planning regimes for several communities on the Avalon Peninsula and discovered areas which include large acreages of privately owned land that have been zoned as "Rural" which restricts development to primarily farming or mining. However, upon checking the soil quality samples and mineralogical and geological information for the lands in question I discovered that the land zoned only for mining or farming was not suitable for either industrial mining or commercial farming! In another area the privately owned land near the water was zoned for "Environmental Protection" and a buffer zone of 15 meters (50 feet) of land was reserved for no development at all in an apparent attempt by the town council to prevent the private land owners from developing their water front land. However, the same town council that imposed the waterfront land use development ban on privately owned water front land is busy trying to develop a commercial marina on Crown land located next door to the privately owned waterfront land! In another area, large acreages of privately owned land is to be reserved under "Watershed/Environment Protection" for a municipal water supply despite the fact that the water is already seriously contaminated, unsuitable for mixing with chlorine and ignores the fact that the water flows away from the town which would require numerous very expensive pumping stations be built at tax payer expense! In other areas, privately owned land around ponds was zoned for "Environmental Protection" despite the fact that the topography of the land showed a major incline of the land upward toward the ponds which required water and any contaminants in the run off water to flow uphill which is an impossibility without pumping! It appears that a Government of Newfoundland policy prohibits any new development along the shoreline within a buffer zone of 100 meters (300 feet) from the water. This restrictive policy will stop any future development of privately owned land along the coastline and will seriously devalue privately owned waterfront land. The Government of Newfoundland recently announced that it will not enforce the 100 meter buffer zone on land along the shoreline where town councils are the proponent developer! As for wetland protection...what is that all about? The massive land area of Newfoundland and Labrador is relatively pristine and untouched and most of the wetlands worth saving are in remote areas. Is it the Government of Newfoundland's policy to stop development on privately owned land wherever there is a small marsh or Lilly pad growing? Most marsh/wetlands are breeding grounds for disease carrying mosquitoes and depositories for methane gas, both of which are damaging to the environment! The Government of Newfoundland Department of Municipal Affairs land use planners and town council land use planners have used a sledgehammer to swat a fly! Regardless of how many restrictions on development of privately owned land the out of control municipal planners and Government imposes, the private land owners have no recourse for financial compensation from Government or town councils! The Urban and Rural Planning Act contains a clause which indemnifies the town councils and Government of Newfoundland from any legal actions for financial compensation to private land owners as a result of Government or municipal land use planning that prohibits or restricts development and/or devalues privately owned land in Newfoundland and Labrador! It appears that the Government of Newfoundland and the town councils have exempted themselves by legislation from responsibility and liability for the financial damages caused to private land owners by negligent, unethical, over reaching, corrupt or environmentally stupid land use planning policies. In the real world, everybody else must accept legal and financial responsibility for their actions which harm others! It appears that the Government of Newfoundland and town councils want to be able to trample private property rights and prohibit or restrict development on privately owned land with the stroke of a pen on a land use planning map and face no consequences for such draconian action!