Court overturns decision

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

Daniel MacEachern dmaceachern@thetelegram.com
Published on January 23, 2014
St. John's City Coun. Wally Collins. — Telegram file photo

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.

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