Developer takes city to court

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

Dave Bartlett
Published on February 26, 2011

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.