MPS - COMMENTS ON 18.5 & 18.6 DEVELOPMENT AGREEMENTS

The following are comments on MPS Section 18.5 and 18.6, Development Agreements (DAs).

Wolfville has made “extensive” use of DAs. Section 18.5, para. 2. This may be due in part to the fact that large portions of the Town fall within Architectural Control Areas (ACA) and development in those areas is often required to done by a DA. See, for example, Section 12.1.6.

A DA “overrides any zoning controls in effect for the property” (MPS 18.5 Para. 1). DAs are justified because they allow the Town and developer flexibility in planning. Criteria for the approval of DAs are set out in section 18.6.

I have a number of questions about DAs which I can’t quite figure out.

Can a DA permit certain zoning controls to be overridden or varied where it may be inappropriate or unnecessary to do so? For example, if a new home is being constructed in an ACA, and the the only issue is the architectural style of the home, can the DA contain provisions which would allow the developer to vary from the otherwise applicable side and rear yard setback requirements?
I note that section 18.8 allows the development officer (DO) to grant certain kinds of variances. Are there specific standards the DO uses when deciding whether to grant the variance?

There should be language added to the MPS and LUB that all DAs which contain provisions meant to protect personal safety be completed prior to granting permission to occupy the structure. I raise this issue based upon the experience of the Segado Development on Willow Avenue. The DA required pedestrian access to the site separate from the very steep driveway. See section 5.1.12 of the DA. This requirement, as was all others, was required to be completed within 18 months of the commencement of the development. See section 5.2.3. The apartments began to be occupied well before this access, a stairway, was constructed.

The following are my suggested revisions to Section 18.6.

PROPOSED REVISIONS [Additions are in CAPS; deletions are in brackets [ ]. My comments [ARE IN BRACKETS AND CAPS]; and explanations for * appear at the end of the revisions.



18.6 CRITERIA FOR DEVELOPMENT AGREEMENTS AND LAND USE BY-LAW
AMENDMENTS

It shall be the policy of Council:

18.6.1 to consider the following STANDARDS AND CRITERIA in addition to all other STANDARDS AND criteria set out in the various policies of this Municipal Planning Strategy, when considering proposals for
development agreements and Land Use By-law amendments:

a) THE APPLICANT SHALL DEMONSTRATE [to ensure] that the proposal conforms to the intent of the Municipal Planning Strategy and to all other applicable Town By-laws and regulations, except where the application for a development agreement modifies the requirements of the Land Use By-law or the Subdivision By-law.

b) THE APPLICANT SHALL DEMONSTRATE [to ensure] that the development does not cause conflict with adjacent land uses, disturb the quiet enjoyment of adjacent lands, or alter the character and stability of surrounding neighbourhoods through:

• the type and intensity of use
• the height, mass or architectural design of proposed buildings [IF POSSIBLE THESE SHOULD BE CLARIFIED; FOR EXAMPLE, RAILTOWN SHOULD NOT BE DUPLICATED TO THE EXTENT THERE IS NO CLEAR DEFINITION: WHAT IS TOO HIGH OR TOO BIG FOR A NEIGHBOURHOOD OR SURROUNDING BUILDINGS. ARE THERE MODELS? EG, MORE THAN ONE STOREY IN HEIGHT.]
• hours of operation of the use
• outdoor lighting
• noise, vibration or odour
• vehicle and pedestrian traffic [WOULD THIS APPLY TO APARTMENT BUILDING IN AREA OF ONE AND TWO FAMILY HOMES]
• alteration of land levels and/or drainage patterns

c) THE APPLICANT SHALL DEMONSTRATE [to ensure] that the capacity of local services is adequate to accommodate the proposed development and such services will include, but not be limited to the following:

• sanitary and storm sewer systems
• water systems
• schools
• recreation and community facilities
• fire and police protection
• street and walkway networks
• solid waste collection and disposal systems

d) THE APPLICANT SHALL DEMONSTRATE [to ensure] that the proposal is not premature or inappropriate by reason of the financial ability of the Town to absorb capital and/or maintenance costs related to the development.

e) THE APPLICANT SHALL DEMONSTRATE [to ensure] that the proposal does not cause environmental damage or damage to adjacent properties through:

• pollution of soils, water or air;
• erosion or sedimentation;
• interference with natural drainage and watercourses;
• flooding

THE TOWN MAY REQUIRE STUDIES TO BE CARRIED OUT BY APPROPRIATE LICENSED PROFESSIONALS TO DETERMINE IF THE PROPOSED PROJECT WILL NOT CAUSES ENVIRONMENTAL DAMAGE OR DAMAGE TO ADJACENT PROPERTIES. THE TOWN ALONE SHALL DECIDE WHETHER OR NOT IT IS NECESSARY TO CARRY OUT STUDIES. THE TOWN ALONE SHALL DECIDE WHICH PROFESSIONALS SHALL CARRY OUT THE STUDIES AND ALL COSTS INCURRED FOR THE STUDIES SHALL BE PAID FOR BY THE APPLICANT.

f) THE APPLICANT SHALL DEMONSTRATE [to ensure] that the proposal protects and preserves matters of public interest such as, but not limited to:

• historic buildings;
• public access to shorelines, parks and public and community facilities;
• important and significant cultural features, natural land features and vegetation.

g) THE APPLICANT SHALL DEMONSTRATE [to ensure] that the proposed site and building design provides the following:

• adequate active transportation networks and contributes to active transportation links throughout the community;
• adequate vehicle circulation and parking facilities to avoid congestion on or near the property and to allow vehicles to move safely within and while entering and exiting the property;
• facilities for the safe movement of pedestrians;
• adequate landscaping features such as trees, shrubs, hedges, fences, flower beds, and lawns to successfully integrate the new development into the surrounding area;
• screening of utilitarian elements, such as but not limited to; mechanical and electrical equipment, and garbage storage bins;
• adequate access for emergency vehicles;
• adequate separation from, and consideration of, public and private utility corridors to ensure their continued safe and functional operation;
• architectural features, included but not limited to, mass, scale, roof style, trim elements, exterior cladding materials, and the shape, size and relationship of doors and windows; that are visually compatible with surrounding buildings in the case of a new building or with the
existing building in the case of an addition;
• adequate outdoor amenity space for use of residents in a residential development;
• adequate facilities for the storage and collection of solid waste materials;
• appropriate consideration for energy conservation;
• appropriate consideration of and response to site conditions, including but not limited to; slopes, soil and geological conditions, vegetation, watercourses, wet lands, and drainage.

h) where Council determines, on the advice of a qualified person*, that there is a significant** risk of environmental damage from any proposed development which does not require an assessment under the Environmental Assessment Act, environmental studies shall be carried out at the expense of developer for the purpose of determining the nature and extent of any environmental impact and no agreement shall be approved until Council is satisfied that the proposed development will not create or result in undue*** environmental damage. THE TOWN ALONE SHALL DECIDE WHICH PROFESSIONALS SHALL CARRY OUT THE STUDIES.

* “qualified person” - this should be defined. The other way to approach this issue to is require an environmental assessment (or the possibility of one) when particular kinds of activity occur. For example, regrading of a certain amount of soil, or working on steep slopes as defined. See the Provincial Environmental Act and regulations.

** why make the criteria “significant risk”. If the idea is to protect the environment as much as possible, the trigger could be simply when the proposed development has an “environmental impact” or if want to raise the bar then have “adverse impact”. But there is no reason to require “significant” if your primary goal is protection of the environment.

*** will need to define what “undue” entails. And why specify a limit at all if “environmental damage” may result from the undertaking? An alternative would be to require mitigation at the cost of the developer.

All of these deal with the balance which must be struck between protection of the environment and allowing for development. The question is where the balance should be. If the priority is protection of the environment, then there should be a low bar for triggering an assessment and requiring mitigation.

David A. Daniels
June 3, 2008

MPS - SECTION 8-4 COMMENTS AND PROPOSED LANGUAGE

The following are comments and proposed revised language on section 8.4: Comprehensive Development District. I have added further comments from what I sent you several months ago, although the proposed revised language (except for the section on retention of agricultural soil) is the same.

The policies as written may not achieve the ends sought and may not provide sufficient guidance on how the policies are to be implemented.

A developer owns 12 acres. He wishes to develop housing on 10 acres, four single family homes or buildable lots per acre. He believes there is a market for such homes/lots. Will the policy as written prevent such a development? What would the developer be required to do?

Section 8.4.4 (a) requires that “the proposal makes efficient use of land in relation to infrastructure requirements.” The Developer proposes to construct sewer and water lines up a road and branch off at each lot. A typical cookie cutter, ribbon development. Is that efficient use of land in relation to infrastructure? Would this proposal require clustering? If the Town wishes to require cluster development, or some other prescribed arrangement, then it should say so.

Section 8.4.4 (b),(c) and (d) say nothing about minimum dwelling units per acre.

Section 8.4.5. states that Council is to require developments to respond to “sustainability principles” and then states that the level of response shall dictate the number of dwellings units (up to 12) per acre permitted.

If the developer wants 12 units per acre then the response must be “exceptional” and “wide ranging.” But what if the developer does not want 12 units per acre, but just wants the minimum as of right lots, whatever that number may be. Does that mean the developer does not have to respond at all to sustainability principles, or at most, a half-hearted effort?

To the extent that responding to sustainability principles raises development costs or results in homes for which there is no market or make less profit for the developer, it may turn out that the RCDD policies as written discourages development of sustainability projects. In other words, the policy as written assumes that developers will want to be able to construct more units per acre and therefore they would have an incentive to incorporate more sustainable principles into the development. Is this assumption correct?

I do not know what developers are interested in doing. I suspect developers will decide upon projects based upon market demand and profit margins.

I have proposed below revisions to section 8.4.5. I have tried to revise this section to make it more “user friendly.” In other words, so that all parties (developers, planning staff, Council and residents) may understand better what is expected of them and what they can expect in future developments.

(These proposed revisions DO NOT address the issue of minimum lot size or minimum units per acre or more generally the the potential shortcomings discussed above.)

The additions I propose are IN CAPS; deletions are shown by placing them in brackets [ ]. My explanation for the proposed changes are italicized and indicated with **** and appear at the end of the proposed changes.


It shall be the policy of Council:
. . .

8.4.5 to require that all developments within the Residential Comprehensive Development District (RCDD) zone respond to sustainability principles and the level of response to these principles shall dictate the amount of residential dwelling unit density that shall be permitted. [The sustainability principles to be considered by Council shall include, but not be limited to the following:]

IN ORDER FOR AN APPLICANT TO BE GRANTED BONUS DENSITY, THE APPLICANT MUST DEMONSTRATE* WITH COMPETENT EVIDENCE** THAT THE PROPOSAL SATISFIES EACH AND EVERY CRITERIA LISTED BELOW AS MANDATORY *** AND ANY OTHER CRITERIA WHICH THE COUNCIL DETERMINES IS APPROPRIATE FOR THE PROPOSAL AND CONSISTENT WITH SUSTAINABILITY DESIGN PRINCIPLES.

IF THE APPLICANT CLAIMS HE OR SHE CANNOT SATISFY THE CRITERIA FOR ECONOMIC REASONS, THE APPLICANT MUST SHOW A REASONABLE RETURN IS NOT POSSIBLE BY COMPETENT FINANCIAL EVIDENCE.****

THE COUNCIL MAY CONSIDER GRANTING A HIGHER BONUS DENSITY TO THE EXTENT THAT THE APPLICANT SATISFIES THE CRITERIA LISTED BELOW AS OPTIONAL.

THE AMOUNT OF BONUS DENSITY GRANTED WILL DEPEND UPON THE EXTENT TO WHICH THE DEVELOPMENT PROPOSAL SATISFIES THE SUSTAINABILITY CRITERIA.

(a) [MANDATORY] the project provides buildings and site design that reduce the required operational energy requirements by a significant amount from conventional buildings. (e.g. district heating systems)

(b) [MANDATORY] the project provides buildings and site design that substantially reduce the impact on the environment through: [ONE ( ___) OR MORE OF THE FOLLOWING:]

• retention of natural systems
• [retention of Category 2 soils] [MANDATORY: I WOULD SUGGEST REPLACING “retention of Category 2 soils” WITH LANGUAGE WHICH FOLLOWS THE LANGUAGE CONTAINED IN THE ACTUAL PROVINCIAL STATEMENT OF INTEREST CONCERNING AGRICULTURE SUCH AS: “which do not eliminate the possibility of using the land for agricultural purposes in the future” [AND WHICH] “set[ ] out separation distances between agricultural and new non-agricultural development to reduce land-use conflicts”]
• use of renewable energy sources
• management of construction wastes
• reduced storm water run off
• water conservation
• waste reduction including solid waste and sewage
• use of environmentally sustainable materials
• use of certified Fair Trade products

(c) [OPTIONAL] the project provides an affordability component that would meet the need to provide housing Wolfville that is affordable and available for all sectors of society.

(d) [OPTIONAL] the project provides for alternative or shared housing and services models such as co-operative housing, co-housing, life lease, car pooling/sharing, district heating, etc.

(e) [OPTIONAL] the project provides barrier free/accessible housing units.

(f) [MANDATORY] the project demonstrates high quality architectural and environmental design that is compatible with the Landscape and that will contribute positively to the immediate area and the Town in general.

(g) [OPTIONAL] the project provides a mixture of housing types and densities as well as a variety of housing designs

(h) [OPTIONAL] the project provides public or private amenities such as parks, walkways, pubic art, daycare, cultural venues, and public gathering spaces.

(i) [[MANDATORY] the project provides active transportation routes and amenities.

(j) [MANDATORY] the project provides access to public transport.

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Explanation for changes:

*It should be clear that the burden is upon the Applicant to show he or she has satisfied the various criteria.

** “Competent evidence” This language will require the Applicant to show, not just make conclusory statements, that the criteria are being met. So for example, when the matter comes before a public hearing, the Town planners can say we approve this project because it has met all the required criteria, and here is the proof.

*** I have divided the criteria listed in subsections under 8.4.5 into two groups: mandatory and optional. The “mandatory” criteria are those which are “straight forward” and appear to be attainable to some degree in all projects which wish to be consistent with sustainable design principles. The “optional” criteria are those which a developer may wish to add, but are not necessary to make the project sustainability-friendly.

To further explain the distinction I have made, consider the criterion of affordable housing. The developer will either decide to include this or not. How could the developer “address” the issue of affordable housing? The obvious answer is that it does not make financial sense. It might only make financial sense if the developer is able to get more units per acre.

If my two-tiered approach is not acceptable, or does not make sense or is unworkable, I would suggest that a provision be added which states that reasons of “economic feasibility” are not an acceptable way to address the criteria.

****You may wish to delete this language altogether. However, it allows the developer to fall back on legitimate economic reasons which he or she must substantiate.

David A. Daniels
June 1, 2008