Halifax council considered being like ‘petulant children’ to the province

The regularly scheduled council meeting of Tuesday, October 1 flew a little bit under the radar, thanks to it happening during the municipal election campaign. But it was noteworthy as the final meeting of our 2020-elected council, held via Zoom in an unwanted tribute to the first meetings of their term, which were forced onto Zoom thanks to a raging global pandemic. This meeting was forced onto Zoom due to council chamber renovations. And some pretty hefty motions got passed in council’s digital chamber worth exploring in further detail even though it’s been a month and an election since that meeting. There are also big changes coming to the city forced by the province, which should be a provincial election issue now that that campaign is upon us (more on that below).

In a high point for this meeting—not to mention 2020 council’s legacy—Bylaw P-104 was passed, and thus the role of Public Safety Commissioner was created and slotted into the HRM’s organizational structure. Speaking of the HRM’s organizational structure, the city seems to have one now! The city’s bureaucracy was once a discordant collection of siloed public departments fueled by the best of intentions, getting consistently flummoxed by other municipal departments. To fix this, in April 2024 the city created the position of Chief Operations Officer, an office held by former roads czar Brad Anguish. Now department heads like the new Public Safety Commissioner are coordinated by and report to the COO’s office. COO Anguish then reports to Chief Administrative Officer Cathie O’Toole, who in turn reports to council.

For those who fell asleep reading that last paragraph, the important thing to know is that an organization can be more flexible when it is hierarchical, with leaders at every level who are empowered to and can be held accountable for making decisions. This new organizational structure was explained to council during the debate of bylaw P-104. In this debate we learned that not only are Halifax’s efforts at police reform marching along, albeit slowly, but in the process, it’s shining a light on how our bureaucracy is reshaping itself to build flexibility into its systems, which will help the city adapt to urgent issues like climate change.

Before discussing the sweeping zoning changes required by the provincial government, there was an update on the Supreme Court case from 2022 about the Blue Mountain-Birch Cove Lakes area. For those who can use a refresher, Annapolis Group Inc. has a bunch of land that the city rezoned to make the wilderness area. Then Annapolis Group sued the city, arguing that because the city rezoned the land, the city has also de facto expropriated the land, which means the city owes them money for the expropriation. This de facto expropriation prevented Annapolis Group from making money on that land by obtaining and then reselling enhanced development rights to the highest bidder.

The city told the courts they thought this argument was dumb, but the courts were like, nah, you’re dumb and dismissed the city’s attempt to get Annapolis’ lawsuit dismissed. Then the city was like, I’m telling Mom and Dad and appealed that dismissal to the provincial Court of Appeals. The Court of Appeals agreed with the HRM and said that because Vancouver once zoned a rail corridor over a hundred years ago, the city needs to actually take the land for the Annapolis Groups’ lawsuit to have a chance of success in suing the city for the alleged de facto expropriation. Annapolis Group appealed that decision to the Supreme Court of Canada, who was all like, Court of Appeals you are so dumb bro, Annapolis Group was going to sell the permission to develop the land at a profit sometime later, which they can’t do now so that is expropriation bro, get it together with these decisions bro. However it should be noted that the Supreme Court ruling was a close 5-4 decision, and the four dissenting justices argued that one of the agreed-upon facts of the case was that the land had not been expropriated at all, de facto or otherwise, because:

the uncontradicted evidence is that Annapolis has been deprived of no reasonable uses, let alone all reasonable uses, of the Lands. The zoning and uses of the Lands remain entirely unchanged. The Lands remain vacant and treed, just as they have been since Annapolis acquired them. Annapolis has the same rights with respect to the Lands that it had prior to Halifax’s resolution in 2016. Halifax’s refusal to up‑zone the Lands in 2016 thus did not deprive Annapolis of any reasonable uses of the Lands. It simply disappointed Annapolis’ hope of developing them. More importantly, even if Annapolis could somehow show that Halifax will never up‑zone the Lands, that could not establish that Annapolis has lost all reasonable uses of the Lands. The Lands have never been used for serviced development, they have always been vacant and treed. The majority’s assertion amounts to saying that a refusal to up-zone vacant land can give rise to a de facto taking merely if all potential reasonable uses are prohibited. That would upset the settled law reflected in the jurisprudence, and it would eliminate Halifax’s statutory and common law protection from liability for refusing to up‑zone. Removal of all reasonable uses of the land must be assessed in relation to both its potential uses as well as the nature of the land and the range of reasonable uses to which it has actually been put.

Who cares about nature and municipal powers to enforce the will of the public in a democracy, a company needs to sell a dream for some profit amirite?

Anyway, later this year or early next, the city’s legal team will give the new council a briefing on the implications of this decision for the city. The provincial government can give the city immunity from lawsuits like Annapolis Group’s by simply granting the municipality that immunity. So the outgoing council voted to write a letter requesting that power from the province. Since a provincial election is going on, if you like having a municipal government that has the power to look after your best interests in spite of a potential future profit of developers, you can make that an election issue. Just ask any candidates you come across—when they knock on your door, or call you, or try to kiss your baby at a community gathering—if their party would protect the HRM with immunity from lawsuits of de facto expropriations AKA construction takings.

In case you need another reason to ask candidates about granting the city this immunity, the city also needs this expanded power to build out the congestion-alleviating, planet-saving green network plan.

Speaking of talking to candidates in the provincial election, part of this meeting included an extended debate about things the province has ordered the city to do, including some good things like removing the requirement for new developments to have a minimum number of parking spots. Councillor Patty Cuttell chimed into the debate to say that removing parking minimums is bad because cars are parked on the street, which demonstrates a need for more parking than we currently have and therefore, she argued, we need more parking lots, and not to remove parking minimums citing her masters in planning. At the same time, while it is true that a slew of people are in fact storing private vehicles on public land at great cost to the city, that is the outcome of a council who have not demonstrated a proficiency in some basic planning concepts. If council did not want people parking on the street, it could be prevented by regulating parking rather than mandating more parking lots.

The province is also ordering the city to do some pretty dumb things, like removing the requirement for new builds to include two- and three-bedroom units. As anyone can tell by the proliferation of one-bedroom and bachelor luxury apartments, developers, if left to their own devices, will build out those types of condos and apartments until the bottom falls out of the market. It is better for the city’s long-term health if families can live in the new high-density builds of the future, which likely won’t happen unless developers are forced via regulations to build multi-bedroom units to accommodate them. It would be worth asking your candidates if their party would reconsider abolishing the minimum-unit-mix regulations.

The other provincial requirement that caused some heated debate was the demand that the city limit commercial space on the ground floor of mixed-use buildings to 20%. Bishop’s Landing, the mixed-use development on the waterfront, is about 100% commercial on the first floor. Were Bishop’s Landing built with a 20% cap on commercial space on the ground floor, something the size of the Bicycle Thief would be the only shop in the building. While this is probably a bad change, it’s worth wondering what would happen with a bit of creative malicious compliance from the city. For example, could the city regulate that ground floors of mixed-use buildings be 20% commercial and 80% public, then allow for up to 100% commercial on the second floor and residential above that? Probably. That hypothetical proposal has the benefit of complying with the letter of the law and achieving a smattering of goals in various municipal strategic plans. On top of that, a weird regulation of this type is exactly the type of quirky rule that could inadvertently create the unique traditional architecture style of Halifax circa 2025 that the NIMBYs of 3025 will say should be preserved to save the character of their neighbourhoods.

Councillor Shawn Cleary chimed into the debate to say that even though these rules aren’t exactly what the city wants, they have to accept them because they are being ordered to by the province. He argued that if council didn’t vote for these changes like “petulant children,” then John Lohr (if the PCs win the election, and if Lohr keeps his municipal affairs and housing role in the new cabinet; this argument might not age well) won’t ask—he’ll just take back the power delegated to council and do it himself. This would cut out city staff from the planning process and remove any opportunities for creative (or malicious) compliance.

These changes passed, good and bad, and if you bug provincial candidates about the bad changes, they might be corrected in the future, so get to it Halifax voters.

The only other thing worth revisiting more than a month after the meeting is the approval of the University Avenue bike lane plan. With that approved by old council, city staff will come back to new council with preliminary designs for approval at some point in the future. Of note during the debate, councillor Trish Purdy was worried about the new university bikeway would cause congestion (it won’t), saying there’s a joke in Cole Harbour that it takes 1.5 hours to drive to the hospital. This is true many days of the year due to the massive amount of congestion created by the municipality’s proud tradition of car-centric planning. But it’s also true that an ebike ride from Cole Harbour to the hospital (or any other downtown location) takes about 30 minutes, every day, even if a faulty crane gets a bridge shut down, (or up to about 45 minutes if you just miss the free ferry). On top of that, bike parking downtown is free and there’s usually a place to lock up a bike right in front of your destination. Not to say that people going for day surgery will be riding bikes, but if the people of Cole Harbour who are going to follow-up appointments or minor procedures like x-rays (or to any other location downtown) can bike there safely, it will make the travel time faster for people getting day surgery who need a drive.

Oh, and during the debate, then-councillor Waye Mason said bike share is coming to Halifax in the spring of 2025.