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