On October 11, the Honourable Justice Darlene Jamieson issued a decision on the case between Kiann Management Limited and the Halifax Regional Municipality. The backstory involves a proposed construction and demolition disposal yard in Porters Lake, on land that used to be a forest until the big 2008 fire happened. In 2015, the property owner, Kiann Management, applied to open a C&D disposal yard, and in 2017, they applied for a development permit for a used building material retail outlet. Both of these applications were for a piece of land on Highway 7 between Lake Echo and Porters Lake, identified throughout all the documents as PID 40740276.
In 2019, HRM development officer Sean Audas rejected the retail outlet, denying the development permit because the plan proposed looked more like a C&D dump than a retail store. Kiann appealed this rejection to the Nova Scotia Utility and Review Board, and in 2020 the UARB ruled that the used building material retail store was fine.
In the decision, the UARB says that most of the PID is zoned as Rural Enterprise, and all applications must be analyzed through the land use bylaws for the area. And even though city staff thought the building was an ugly retail outlet, and really more of a dump, the UARB decision states that the relevant land use bylaw “then sets out how this is to be accomplished, through Parts 22A, 22B and 22C. The used building material retail outlet is not excluded from the RE Zone as the C&D operations are. The policies require re zoning if such land uses are to occur in the zone.”
This brings us to the 2015 application to rezone PID 40740276 to allow the creation of a C&D facility. This decision went back and forth for a while until it too was rejected, this time by the Harbour East Marine Drive Community Council on April 4, 2019. This vote to reject was influenced by public campaigns against the dump and city staff telling the councillors of the committee that a C&D yard does not fit with the municipal planning strategies or land use bylaws of the HRM. This, too, was appealed by Kiann to the UARB.
In that decision, the UARB found that the HRM’s municipal planning strategies do, in fact, allow for and encourage C&D facilities as per Halifax’s solid waste municipal planning strategy from the late 1990s. The UARB also pointed out that even though C&D operations are specifically excluded from the land use bylaws, the Rural Enterprise zone allows for more intensive land use than a construction debris dumping ground. For context, the UARB looked at how the HRM handled the rezoning that allowed for Ross Road and Goodwood.
In those cases, both facilities were already running as disposal yards but didn’t have the appropriate zoning, so the city just changed the zoning without much scrutiny. Meaning if the HRM cared about C&D sites as much as they claimed to with the Highway 7 PID, Ross Road and Goodwood would have faced the same strict procedural hurdles. Seeing as how the 1990s municipal planning strategy identifies C&D facilities as crucial elements of municipal construction waste reduction, and since there are land use bylaws governing C&D facilities, if proposed C&D facilities comply with the bylaws, the land should be rezoned to allow it, in line with municipal planning strategies, as the city did with the other C&D places.
Or, if you got lost in the weeds of the UARB decision, the short version is that Lake Echo and Porters Lake are likely getting a dump because the HRM is an extremely careless and administratively sloppy bureaucratic entity. But this is not new information.
In 2022, for example, Halifax’s Environment and Sustainability standing committee got a presentation from Our HRM Alliance. In that presentation, former HRM solicitor Mary Ellen Donovan pointed out that even though the charter says “where the Council adopts a municipal planning strategy or a municipal planning strategy amendment that contains policies about regulating land use and development, the Council shall, at the same time, adopt a land-use by-law or land-use by-law amendment that enables the policies to be carried out,” this is not something the city does in practice, as evidenced in things as large as road safety and transit planning to things specific as this planned dumping ground.
At long last, this brings us to the most salacious part of the story: councillors David Hendsbee and Trish Purdy being reprimanded for bias. Before getting into why Justice Jamieson wrote, “Not only do Councillor Purdy’s comments illustrate a reasonable apprehension of bias, which I have concluded is the applicable test here, but they also reflect a mind incapable of persuasion,” it’s important to understand what a councillor’s job is. (And for long-time political watchers of HRM’s council, it’s funny to read such a succinct encapsulation of Purdy’s general vibe as a councillor.)
Councillors have two main jobs in governing the city. They are legislators when they pass bylaws or municipal plans, and administrators when they review things like development agreements. As legislators, when passing municipal planning strategies or bylaws (land-use or otherwise), councillors are supposed to be “biased.” Meaning that they are supposed to create strategies with specific “biased” goals like saving the planet, making the roads safer or regulating land use in a community. They are then supposed to pass bylaws and set up processes to achieve the desired outcomes of the “biased” plans.
Once the plans are in place and the bylaws are set, however, councillors become administrators. In this role, councillors must accept applications that follow the rules, even if the application exposes a dump-sized hole in municipal bylaws. Even though councillors Becky Kent and Tony Mancini also voted against the rezoning, only Purdy and Hendsbee were reprimanded, because before hearing any information about the proposal, they had already decided to deny the rezoning. This was established due to things like Purdy starting the discussion by saying, “I know that we need C&D facilities. We are in a building boom but absolutely not in a residential area, absolutely not.” Justice Jamieson decided that due to Hensdbee and Purdy demonstrating bias against the proposed dump as administrators, they are not allowed to vote on this application when it comes back to council.
When this comes back to council, it’s unclear what our new councillors will do. According to former mayoral candidate/Reddit user wayemason “if you want to stop something in flight you need to find a reason in policy that already exists to say no, and if you want to stop something long term you need to make a motion to change policy, separate from the hearing.” If nothing changes the UARB will likely approve this new Lake Echo/Porters Lake construction debris on appeal even if it’s denied by council.
And every time the residents of the Eastern Shore drive past their new construction debris disposal yard, let it serve as a reminder that our city and councillors regularly defeat themselves by being an embarrassingly, devastatingly sloppy bureaucracy.
This article appears in Oct 1 – Nov 6, 2024.