Municipal Law Newsletter
Development Agreements and the Authority of the UARB
Development Agreements are an important tool, allowing municipalities to negotiate terms between a property owner/developer and a municipality. These agreements can give the parties flexibility to address certain issues while adhering to broader planning and land-use strategies.
A recent decision addresses the importance of procedural requirements when using these agreements.
In Municipality of Kings v Methot et al., 2019 NSCA 21, eight individuals (“the Owners”) purchased two adjacent lots near a lake. The Owners placed four recreational vehicles (RVs) on those lots for “summer use”. Other residents in the community were only allowed a single home or cottage on a lot.
The lots were close to a “significant wildlife habitat” that had been zoned as Seasonal Residential. The land was subject to a Municipal Planning Strategy and certain Land Use By-Laws.
Residents in the area raised concerns about the density of the development and the associated activity on the lots. The Department of Environment advised that while there were no present concerns with the site, if the rest of the community surrounding the lake was developed in the same manner and density as the Owners’ lots, there would be environmental concerns.
After the Municipality directed the Owners to remove the RVs, the Owners sought a development agreement and approval to allow the RVs to remain on site. Council refused the application and confirmed the order to remove the RVs.
The Owners appealed to the Nova Scotia Utility and Review Board (“the Board”). The Board ordered the Municipality to approve a development agreement that would allow the RVs to remain on the lot. The Municipality appealed this decision to the Nova Scotia Court of Appeal.
The appeal focused on whether the Board exceeded its authority in ordering that a development agreement be created.
The Court of Appeal noted that section 250(1)(b) of the Municipal Government Act (“the MGA”) outlines that the “approval or refusal of a development agreement” can only be appealed “on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy”. If a decision is appealed, the Board has three options:
- allow the appeal and order Council to approve the development agreement;
- approve the development agreement with changes specified by the Board; or
- amend the development agreement.
The Municipality’s policies required that a draft written agreement be presented for consideration to Council before it could be approved.
The Municipality took the position that because there was no draft or formal development agreement, there was no “written agreement” for the Board to approve, to approve with changes, or amend. By ordering the creation of a development agreement, the Board had “put the cart before the horse”.
The Court of Appeal found that the Board did not have the authority to order Council to approve a development agreement when no draft agreement had been prepared.
The merits of the initial complaint – that the Owners had not been issued a development agreement to permit the four RVs on their two adjacent lots – were not addressed. The Board’s error in exceeding its authority was sufficient for the Court of Appeal to overturn the Board’s decision.
The Court noted that the Owners could have negotiated a resolution with the Municipality but the Board did not have the authority to order that a development agreement be created.
This decision provides valuable insight into the importance of following the required process in the pursuit of a development agreement. The decision confirms that the Board does not have the authority to order the creation of a development agreement. The Board’s powers are limited to those set out in s. 250(1)(b) of the MGA, that is, ordering the approval of an agreement, approving an agreement subject to changes, or amending an agreement, but in all cases, there must be an agreement to begin with. The Board has no authority to create one.
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