DECISION

NOVA SCOTIA UTILITY AND REVIEW BOARD

2015 NSUARB 219 M06535

IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT

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IN THE MATTER OF AN APPEAL by GORDON ROSS MCCABE from a November 3, 2014, decision of Truro Town Council to rezone lands at 454 Queen Street from Industrial (M1) Zone to Institutional (P3) Zone

BEFORE:

APPELLANT:

RESPONDENT:

APPLICANT:

HEARING DATE:

FINAL EVIDENCE:

DECISION DATE:

DECISION:

Document: 239755

Dawna J. Ring, Q.C., Member

GORDON ROSS MCCABE Gordon Eaton

TOWN OF TRURO Gary A. Richard, LL.B.

DISMAS SOCIETY Richard Cotterill, President

January 26, June 2, and 3, 2015

June 3, 2015

September 17, 2015

Appeal Dismissed.

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Table of Contents

I  EVIDENCE ............................................................................................................... 3 1.  Introduction and Gordon McCabe ...................................................................... 3 2.  Adjournment ....................................................................................................... 9 3.  Gordon Eaton ................................................................................................... 11 4.  Richard Cotterill ................................................................................................ 19 5.  Kirby Thompson ............................................................................................... 19 6.  Andrew MacKinnon .......................................................................................... 25 7.  Jason H. Fox .................................................................................................... 32 

II  ISSUES .................................................................................................................. 37 III  LAW ........................................................................................................................ 37 IV  SUBMISSIONS ....................................................................................................... 39 V  FINDINGS .............................................................................................................. 40 VI  CONCLUSION ........................................................................................................ 43 

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I EVIDENCE

1. Introduction and Gordon McCabe

[1] This planning appeal has been brought by Gordon McCabe. Mr. McCabe

owns the property at 11 High Street in the Town of Truro (also the “Town”). His property

is a corner lot on High Street and East Queen Street. It consists of approximately two

acres. Mr. McCabe has lived on this property for more than 70 years. He has owned it

for 58 years and has operated his businesses from there for the last 55 years. Mr.

McCabe is in the business of trucking and excavation doing backhoe, fill, and excavation

work. His machinery is kept in the back of his property and includes a portable sawmill.

Mr. McCabe also owns a woodlot and, therefore, he has logs at the back of his property

as well. His land will be referred to as the “McCabe property”.

[2] On the opposite side of High Street is property owned by the Dismas

Society (“Society”) at 454 Queen Street (“Society’s property”). The Society is a non-profit

organization that assists people transitioning from prison into the community. Its lands

currently contains a converted dwelling over a hundred years old that is used as a half-

way house.

[3] The Society’s property was zoned Industrial (M1) zone and designated

Industrial on the Future Land Use Map. Under the Land Use By-law (“LUB”), the Industrial

(M1) zone would permit the Society to build as-of-right a number of uses such as a

processing and assembly plant, an office and professional building, or a funeral home

[Exhibit M-4, p. 7-3]. It does not permit a residential care facility. Its current half-way

house is permitted to operate as a non-conforming use.

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[4] However, the Society needs a new building to meet the needs of its clients.

It would like to house both men and women, but needs a separation between them. At

present, its building may only house one gender or another. It would like to help both

groups, in particular, being close to the women’s prison.

[5] The Institutional (P3) Zone permits various uses including residential care

facilities, homes for special care, and community homes (p. 8-7).

[6] To enable the Society to build a second building on its lands, Council for the

Town of Truro (“Council”) approved the Society’s Application to rezone its lands from

Industrial (M1) zone to Institutional (P3) zone at its meeting on November 3, 2014. The

current building will remain and will be used for other Society purposes.

[7] Mr. McCabe filed his Notice of Planning Appeal, dated November 20, 2014,

with the Nova Scotia Utility and Review Board. The Appeal is brought under the Municipal

Government Act, S.N.S. 1989, c.18, as amended (“MGA”). In this Appeal, the Board is

to determine whether Council’s decision has reasonably carried out the intent of the Town

of Truro’s Municipal Planning Strategy (“MPS”).

[8] Mr. McCabe testified storm waters flow down and across his property,

across High Street through the Society’s property, and westward down Queen Street.

Due to this natural storm water drainage, Mr. McCabe testified his property has never

flooded. He provided to the Board pictures of major floods that have occurred over the

past 19 years in 1996, 1998, 2003, 2004, 2008, 2009, 2012, 2013, 2014. He stated there

have been 11 floods in the area that have caused severe damage to homes and

businesses.

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[9] Mr. McCabe states Council has not reasonably carried out the intent of the

following MPS policies, including that rezoning applications must include detailed storm

water drainage plans. The relevant sections read:

Policy E-4 It shall be a policy of Council to accommodate limited development within the 1:20 and 1:100 where the proposed development can be flood proofed and not contribute to upstream or downstream flooding or result in a change to flood flow patterns. Policy E-5 It shall be a policy of Council to accommodate limited development and alterations of topography within the 1:20 and 1:100 flood plains where it can be demonstrated that the proposal will not contribute to upstream or downstream flooding or result in a change to flood flow patterns.

[Exhibit M-3, pp. 9-4 - 9-5]

Policy E-26 It shall be a policy of Council to establish the Floodplain (E2) Zone and apply it to areas of the Salmon River Floodplain that are the primary drainage ways for flood waters and to lands in the vicinity of East Queen Street where ice damming has historically caused extensive flooding. Policy E-27 It shall be a policy of Council to maintain and enhance flood dynamics as well as minimize new flood damage to property by prohibiting permanent structural development in the Floodplain (E2) Zone and set out specific requirements in the and Use By-law to regulate topographical alterations.

[ibid, p. 9-12]

Policy E-33 It shall be a policy of Council to, for lands within the Floodway Fringe (E4) Overlay, apply the regulations and requirements of the underlying zone to any development. Policy E-34 It shall be a policy of Council to permit alterations of topography in the Floodway Fringe (E4) Overlay using a cut and fill procedure prescribed by this strategy and accompanying provisions in the Town of Truro’s Land Use By-law.

[ibid, p. 9-14]

Policy IM-16 It shall be a policy of Council to require the submission of a detailed proposal as part of any rezoning application or amendment application that affects a specific property or properties. Where such a proposal involves dimensional or aesthetic issues, it shall include both a written and a professionally prepared site plan and graphic representations that are drawn to scale. Such graphic proposal must clearly indicate the following; … c) the means by which the site is to be serviced by sanitary and storm sewers, water,

electrical service and other utilities; [ibid, p. 11-9]

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Policy IM-17 When considering a rezoning application or other Land Use By-law amendment application that includes a specific development proposal it shall be a policy of Council to have regard for the following matters: … d) the adequacy of sewer services, water services, waste management services and

storm water management services; Policy IM-18 While a rezoning application must be accompanied by a clear development proposal, there is no legal agreement which requires a landowner to conform to the proposal as presented. It shall be a policy of Council, therefore, to take into account the other potential development scenarios that may be permitted as a result of a proposed zone change when evaluating a rezoning application.

[ibid, p. 11-10 - 11-11]

[10] Mr. McCabe also cites the preamble to, but not the Policy of, IM-10:

11.4.5 Future Land Use Map Amendment There are circumstances under which a rezoning may not be considered at all because it would clearly contradict or ignore a policy or policies in the strategy. For such a rezoning to occur, the Future Land Use Map must also be amended either before the rezoning or concurrently. A future land use map amendment is subject to Policies IM-8 and IM-9 and Council must be satisfied that there is a demonstrated need to reevaluate the future land use map.

Policy IM-10 It shall be a policy of Council to, subject to Policies IM-8 and IM-9, consider amending the Future Land Use Map by changing a parcel’s future land use designation in order to permit a proposed rezoning. The proposed map amendment and rezoning may be considered concurrently.

[Exhibit M-3, p. 11-6]

[11] The corresponding LUB includes various flood proofing provisions including

cut and fill requirements. Amongst them LUB 9.3.8 reads:

9.3.8 Flood Proofing Requirement a) All buildings in the Floodway (E3) Overlay or Floodway Fringe (E4) Overlay must be

flood proofed in accordance with the following requirements:

i) the minimum opening elevation of any main building shall be 0.09 m (3.5 inches) above the established 1:100 year flood elevation indicated on mapping prepared under the Canada - Nova Scotia Flood Damage Reduction Program;

ii) fill shall be placed around the perimeter of the building to a height equal to the

minimum opening elevation for a distance of 3 m (10 ft) from the building; iii) beyond 3 m (10 ft), the fill shall slope down to existing grade at a 1:1 slope; and iv) at the finished foundation stage of construction, the property owner shall provide

the Development Officer with a locational certificate prepared by a Professional Surveyor indicating, in addition to the location of the buildings or structures on the lot, the minimum opening elevation.

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b) Notwithstanding (b)(ii) above, a slope in excess of 1:1 may be permitted where the backfilling has been designed by a Professional Engineer.

c) Flood proofing shall not directly interfere with storm water drainage.

[Exhibit M-4, p. 9-11]

[12] Rather than have these detailed storm water management plans submitted

with the application form, Council’s decision to rezone the property would not take effect

until the Public Works Department approved storm water mitigation procedures to

alleviate potential flooding issues. Its decision reads:

On motion of Deputy Mayor D. Joseph and Councillor R. Tynes, the application for rezoning of 454 Queen Street from the Industrial M1 Zone to the Industrial P3 Zone was approved, subject to storm water mitigation procedures to alleviate any potential flooding issues, to be approved by the Public Work’s Department.

[Exhibit M-2, p. 3-3]

[13] In essence, Mr. McCabe testified he is concerned that if the development is

permitted to proceed, the natural storm water drainage will be lost. His lands will flood

and he will lose everything: his business and his home. He stated in his submissions to

the Board dated January 7, 2015:

With the severe weather changes and the further developments on the south side of Truro, the storm waters will increase drastically and if the proposed development is allowed to go forward I stand to [lose] everything I own, my business and my homes, as the development will take away the natural storm water drainage ability with no where for the water to go. I was not affected in the past because of this natural storm water drainage system, which is in jeopardy of being destroyed if this rezoning is allowed to be upheld.

[Exhibit M-6, p. 1]

[14] Mr. McCabe stated he was concerned no storm water management plans

were presented with the application form. With his experience in excavation, infill, and

backhoe work, he does not believe the Society can develop another large building on this

lot without taking away the lands’ current ability to absorb the same amount of storm

water.

[15] The lands of both McCabe and the Society are located in the secondary

flood areas of the Salmon River which is north of Queen Street. The Policies of the MPS

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are based on a joint study on flood risks in the Truro and surrounding area called the 1988

Canada – Nova Scotia Flood Damage Reduction Program. From it a flood risk map was

developed and later updated in 1988 by EDM Environmental Design and Management

Ltd. (“1988 Flood Reduction Map”) [Exhibit M-15]. The map shows the low lying areas

around the Salmon River that flood one in 20 years (“1:20”) and areas at higher elevations

which may flood one in every 100 years (“1:100”). The latter is at an elevation of 15.2

metres above sea level. This area is a Floodway Fringe (E4) Overlay.

[16] The lands of the Society and parts of McCabe’s lands are in the 1:100 flood

area. Mr. McCabe’s home, however, is not within the flood area as it sits at an elevation

of 15.9 metres above sea level. This means his house is 700 millimetres, or 28 inches,

above the one in a hundred year flood elevation.

[17] The 1988 Flood Reduction Map shows the lower portion of Mr. McCabe’s

property, near the corner of High Street and East Queen Street, has an elevation of 14.6

metres above sea level. Waters flow from his lands across High Street and into the

Society’s property, which is at the lower elevation of 14.3 metres.

[18] Mr. McCabe confirmed the water which enters his land are not flood waters

from the Salmon River, but rather storm water from developments; which he says are

from the County and Town at higher elevations above his land.

[19] The hearing of the Appeal on its merits commenced in Truro on January 26,

2015. Mr. McCabe testified to his concerns by first reading into the record his written

submissions [Exhibit M-6]. He also reviewed each MPS Policy and LUB which addressed

his issues relating to storm water management, and the requirement of the plans to be

part of the rezoning Application.

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[20] Mr. Richard asked Mr. McCabe why Council’s decision, which requires the

plans to be submitted to the Public Works Department, was not satisfactory to him. Mr.

McCabe explained he would not have the ability to review those plans to satisfy himself

that, in fact, they would sufficiently address the storm water management issue. If they

did not, he would have no access to this appeal process. When speaking to the review

of those plans, he stated he would give it to someone with higher capabilities, an engineer.

[21] Various follow-up questions led to the parties having an opportunity to

speak amongst themselves and they eventually reached an agreement.

2. Adjournment

[22] The parties agreed they would request the Board to adjourn the Appeal

without day. The Society would prepare and provide storm water management plans to

the Town’s engineer. Once the Town’s engineer was satisfied they met the requirements

of the MPS and LUB, they would be provided to Mr. McCabe. Mr. McCabe would have

30 days to have an engineer of his choice review the plans and decide whether, in the

opinion of Mr. McCabe and his engineer, the plans met the MPS and LUB. Mr. McCabe

could also provide alternate plans or submissions for consideration by the Town’s

engineer. After receiving the information from Mr. McCabe and his engineer, the Town’s

engineer would have 14 days to make a final decision on whether the storm water

management plans were satisfactory.

[23] If Mr. McCabe and his engineer were satisfied with the plans, Mr. McCabe

would withdraw his appeal. If Mr. McCabe and his engineer were not satisfied and the

Town’s engineer approved the plans, then Mr. McCabe’s Appeal would be continue.

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[24] The Board accepted the parties’ agreement which it outlined in its letter to

the parties of January 28, 2015. The process proceeded as noted above. Mr. McCabe

and his engineer did not agree with the plans submitted by the Society’s engineer. The

Town’s engineer gave final approval of the plans on April 9, 2015.

[25] On April 27, 2015, the Board was advised that Mr. McCabe would like to

continue to proceed with his Appeal. In its letter of April 28, 2015, the Board set the dates

for the filing all remaining documents and the hearing of the Appeal which included, for

example, the experts’ reports, qualification statements and witness lists.

[26] The hearing resumed and was heard in Truro on June 2 and 3, 2015.

[27] When the hearing resumed, the evidence focused on the engineering

experts. Kirby Thompson, with MEC Engineering & Construction Services Limited, was

retained by the Society. Mr. Thompson prepared four engineered certified plans for the

Society. They showed the Existing Conditions (150103-01), Proposed Conditions #1 (02),

Water Ponding Area (03), and Proposed Conditions #2 (04). Individually or collectively

they shall be referred to as the “Plans”. Mr. Thompson opined in his letter to the Society

dated February 20, 2015, [Exhibit M-7] that with his engineered ponded storage area on

the Society’s lands, he believes the development of the new building as shown on Plan

02 will not have any adverse impact on other properties, meaning the Society’s property

would continue to absorb the same amount of storm water after the development as it

does presently.

[28] Gordon Eaton, a retired engineer with the Municipality of the County of

Colchester (“County”) was retained by Mr. McCabe and opined the Plans do not

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reasonably carry out the MPS, or meet the requirements of the LUB. His expert report is

dated April 2, 2015, [Exhibit M-9].

[29] After considering Mr. Eaton’s information, the Plans were approved by

Andrew MacKinnon, the Town’s engineer on April 9, 2015, in which he stated:

In closing, the submission by Gordon K. Eaton, PEng does not supply any engineering evidence to warrant not approving MEC's design and therefore MEC's Design is approved and accepted as meeting the requirements of the Town of Truro Land Use By-law.

[Exhibit M-10, p. 2]

Mr. MacKinnon prepared an expert Report for the Appeal dated April 9, 2015 [Exhibit M-

10]. He addressed each issue raised by Mr. Eaton and concurred with Mr. Thompson’s

opinion.

3. Gordon Eaton

[30] Mr. Eaton graduated in 1975 and after his two years of internship became

a registered professional engineer. He worked for the County for two years and then the

Provincial government. He managed provincial buildings worth approximately $450

million, first for the Truro area, the County, and then for northern Nova Scotia. In his work

he was familiar with building plans and proposals.

[31] Mr. Eaton also volunteered on the Planning Advisory Committee for the

County for 18 years and was appointed as one of the County’s representatives on the

joint planning advisory committee for the flood risk planning. This meant dealing with

what today is the cut and fills requirements. The Board understands these to be the

specific requirements in the LUB. The committee was formed in 1988 and disbanded in

April of 2001.

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[32] Mr. Eaton’s qualification statement was not opposed and, therefore, he was

qualified to give opinion evidence as follows:

Mr. Eaton is a qualified Professional Engineer capable of giving expert opinion evidence on building plans and land use planning matters including the intent of the flood proofing standards developed by the Joint Planning Advisory Committee on Flood Risk Planning - Town of Truro and Municipality of Colchester County.

[Exhibit M-14]

[33] Mr. Eaton’s first concern was the building does not meet the setbacks for

the front, rear or flanking yards. The LUB requires a minimum of 12 metres from each of

the property lines, whereas the setbacks for the proposed building are 9.3, 9.6 and 9.2

metres, respectively. Mr. Eaton argued the hearing should be terminated as the building

cannot be built. Consequently, there is no need to discuss it further. In essence, this was

a preliminary motion requesting the Board to grant the Appeal summarily. Both Mr.

Richard and Mr. Cotterill disagreed with Mr. Eaton’s interpretation of the LUB. The Board

did not grant the motion and decided the hearing would continue.

[34] Mr. Eaton testified the proposal was contrary to MPS Policy E-6, which

states:

Policy E-6 It shall be a policy of Council to not permit the establishment of institutional land uses, such as hospitals, senior citizen housing, special care facilities, and other activities that have a prevailing safety consideration in areas that are exposed to flood risk.

[Exhibit M-3, p 9-5]

[35] Mr. Eaton stated the proposed building is like a special care facility. It will

house people who will have difficulty exiting the building in a flood because they are

adverse to authority. Also the facility includes a wheelchair accessible room. Under

Policy E-6, it cannot be built on the 1:100 flood plains.

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[36] Mr. Eaton stated the motion approved by Council speaks of rezoning the

lands from Industrial M-1 zone to an Industrial P-3 zone. There is no Industrial P-3 zone.

The Board accepts this to be a typographical error and will not address it further.

[37] Mr. Eaton spoke about the importance of the 3-meter berm around a

building when flood proofing a property. The berm allows emergency personnel safe

passage around the structure in a flooding condition to assist in evacuating the occupants.

Mr. Eaton stated the Town did it incorrectly in its LUB 9.3.8 by dividing it into two and

three components and did not properly correct its “notwithstanding clause”, which also

has a typographical error.

[38] Mr. Eaton’s major concern is that in his interpretation of the LUB, 9.3.8

requires every development to build a 3 metre berm around the structure. If such a berm

is built on this property, it cannot be flood-proofed without interfering with storm water

drainage. Therefore, in his opinion it cannot be built. He states as follows:

Clause (c) of that thing also states that flood proofing shall not directly interfere with storm water drainage. Plain and simple, if a proposed building cannot be flood proofed without interfering with storm water drainage or required storm water retention, it cannot be built. That’s my interpretation. That if you’re going to interfere with the storm water drainage and it can’t be mitigated, then you shouldn’t be build ... because you have the berm, then you shouldn’t be building the building. Okay.

[Transcript, p. 26]

[39] Mr. Eaton also stated the Plans do not accurately show the current existing

ground elevations of the lands. He stated that as the measurements were taken in

January of 2015, these lands may have been frozen. The difference between elevated

frozen lands and those that are not frozen would result in an additional 52 cubic metres

of water that needs to be stored onsite. In his opinion, it does not appear that Mr.

Thompson took frost into consideration.

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[40] Another significant problem, in Mr. Eaton’s opinion, is that the proposed

structure will block, or at least partially block, the flow of water from Mr. McCabe’s property

to the asphalt on Queen Street.

[41] Mr. Eaton also stated there is not enough information provided to be able

to calculate the cross-section of the swale in any location. He described “swale” as the

grassy low point that allows water to flow through the area. Consequently, in his view,

there is no proof that Mr. Thompson’s Plans will provide an equal or greater amount of

flowage of water than what is there at the present time. He stated as follows:

And you can see that there’s, you know, Mr. Thompson on, I guess, 02, the drawing that you have in front of you, has shown how the water is going to come across from Mr. McCabe’s property and go both ways around the Dismas house. There is no proof that what Mr. Thompson has done will provide for an equal or greater amount of flowage of water than was there at the present time, that is there at the present time.

[Transcript, p. 28]

[42] Furthermore, in Mr. Eaton’s opinion, it is impossible to properly review this

point without additional information. If there was additional information, it was not

provided to his client. If there was not additional information, he does not see how Mr.

MacKinnon could have approved Mr. Thompson’s calculations or information.

[43] Mr. Eaton described that when he would review proposed building plans he

would decide: (1) whether they were believable; and (2) will they work in the long-term?

[44] In answering these questions in relation to these Plans, in his opinion, they

do not meet these two criteria because:

1) There is a berm around the large tree and it shows the water flowing right through

the high point of the berm;

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2) Gravel will get pushed onto the lawn by a snowplough trying to get to the garbage

containers which, over five or six years, will build up in that area and block the flow

of water;

3) The first front step is a tenth of a metre below the grade and on a thaw day in

January will result in four inches of water. Over time the Society will look to replace

those steps which will further block the flow of water;

4) There is an approximate one inch in 90 feet of grade over the parking lot which is

insufficient to allow water to run; and

5) Ploughing patterns will likely put all of the snow in the swale and block the area

from taking the water in the winter time.

[45] On cross-examination by Mr. Richard, Mr. Eaton further explained that

although his training was in industrial engineering, he mainly worked as a civil engineer.

He reviewed design plans for renovations of buildings to ensure, mainly, that they met the

building code standards. New buildings were done through private consultants and built

through the Halifax office, although the money flowed through his office. It was unclear

as to what environmental engineering he actually did as, in his response to this question,

he spoke about new buildings and seeing plans such as 02. However, in his previous

statement he said that the new buildings were done through the Halifax office, not his.

When asked about creating or designing plans himself, he said yes, and then he

commented on critiquing a lot of existing plans, such as for the ramp at the old Teachers’

College.

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[46] Mr. Eaton confirmed that the property is not in a flood risk area:

Q. Is that in a flood risk area? A. No, it’s not in a flood risk area, no.

[Transcript, p. 40]

[47] Mr. Eaton clarified he is not suggesting that Mr. Thompson’s measurements

are not accurate. They are accurate for the time of the year that he took them. His

concern is that there could have been frost, which does not appear to have been taken

into consideration. However, Mr. Eaton confirmed that did not take any measurements,

do any topographical study, or provide any other data of his own to contradict Mr.

Thompson’s work.

[48] It was Mr. Eaton’s opinion that pursuant to Policy 9.3.8 – which requires

flood-proofing with a 3 metres berm around a building – neither of the proposals in the

Plans can be built (02 or 04).

[49] Mr. Eaton reviewed the definitions in the LUB for a “Home for special care”

and “Residential care facility” as follows:

Home for Special Care means a building wherein nursing care or room and board are provided to individuals incapacitated in some manner for medical reasons but does not include a hospital. Homes for special care shall not include the uses of a tourist establishment.

[Exhibit M-4, p. 1-8]

Residential Care Facility means a community-based group living arrangement, in a single housekeeping unit, for eight (8) or more individuals, exclusive of staff and/or receiving family, with social, legal, emotional, mental and/or physical handicaps or problems, that is developed for the well being of its residents through self-help, professional care, guidance and supervision unavailable in the resident’s own family, an institution or in an independent living situation. A Residential Care Facility is licensed, funded or approved by the Province of Nova Scotia.

[ibid, p. 1-13]

[50] Mr. Eaton maintained that Policy E-6 applies to the Society. He states it

does because the intent of the policies was concerned with the ability to evacuate people

and those in a half-way house may have a problem with authority and may not evacuate

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quickly enough in a flood type situation. In his view, staff not informing Council of Policy

E-6 was extremely biased and showed that the Town wanted to put this development

through at all cost. He stated as follows:

I guess if I could comment on this, I would comment on this in saying that when I look at what planning did to define or to support this property, it appears that it is extremely biased in that this policy was not brought up, at least partially, to deflect all the support that they have put forth on this property. And it shows in somewhat a bias that the Town is wanting to put this through at all cost.

[Transcript, p. 49]

[51] Under questions from Mr. Cotterill, Mr. Eaton agreed that 90 percent of the

water flowed in the directions noted by Mr. Thompson in both his Plans of the existing

conditions and those for the proposed building.

[52] Mr. Eaton also confirmed the property owned by the Society is

approximately a half a hectare, as compared to the 1:100 floodplain, which is extremely

large. It flows from the Salmon River in Truro to the Bay of Fundy. Mr. Cotterill suggested

its one property and its distribution of a few shovels of dirt around the building is like the

tip of a ballpoint pen in this extremely large floodplain. Mr. Eaton agreed it was small.

Q. And this property that we’re looking at, our property at 454 Queen Street, which is about a half a hectare, you know, something like that. A. Yeah. Q. It’s situated in the one to 100 hundred floodplain. Is that what we’re talking about? A. Yes. Q. And this one to 100 floodplain is fairly large? A. Yes, it is, yeah. Q. Huge? A. It’s big, yeah. Q. Am I correct in my thinking that we’re talking about ... if this room were the one to 100 floodplain, that this property that we’re looking at would be about the size of the tip of that ballpoint pen? A. Well, I’m not sure. I’m not sure.

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Q. This one to 100 floodplain is huge. It goes all the way from Salmon River to Truro to the Bay of Fundy. A. Yeah. Q. And we’re talking about a little tiny property located on the corner of Queen Street and High Street. A. Yeah. Q. And you’re talking about a major flood and we’re talking about moving a few shovelfuls of dirt around here. A. We weren’t even talking a major flood when Eddy Group flooded. It was a good rain but there were a lot of areas that normally flood in the spring that didn’t flood at that area, at that point in time. And a lot of this, I guess, has to do with topography, you know. And every flood is different. Q. I just want to get clear in my own mind the size of this area that we’re talking about compared to this one to 100 floodplain. A. It’s small.

[Transcript, pp. 53-55]

[53] Mr. Eaton said the parking lot would actually enhance the flow of water

because it is asphalt which provides a better flow than grass and a faster flow of water

(Transcript, p. 70).

[54] Mr. Eaton did not know if adding on another 22 cubic metres for the roof

was appropriate under the circumstances.

[55] Mr. Eaton also stated that in his experience of dealing with new proposals,

he did not receive engineering information on storm water management or flood plains.

[56] Mr. Eaton also stated that both the building and the berm in a major flood

would cause a certain amount of restriction in the flow of the water. Consequently, they

will cause the water to back up and the level to rise slightly behind or before it gets to the

Society’s proposed building (p. 72).

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4. Richard Cotterill

[57] Richard Cotterill testified that he is President of the Society. It is a non-profit

organization with a volunteer board. It has been operating for 30 years at its property on

Queen Street. Mr. Cotterill has been involved with the organization for the last four years.

[58] The Society operates a half-way house on its property. The building is

approximately 100 years old. Its paid staff assist those attending at the house seven days

a week 24 hours a day. Its goal is to assist people transitioning from prison into the

community.

[59] The Society at the present time can house only women or only men as they

do not have a separation in the building. They are interested in building a new facility on

this site in order to be able to help both men and women.

5. Kirby Thompson

[60] Kirby Thompson testified that after graduating from CEC in 1972, he did

topical survey work in the summers while he attended university; receiving his Bachelor

of Science (diploma in Engineering in 1976) and his Bachelor of Engineering from Nova

Scotia Technical College (Civil Engineering in 1978). He is a professional member of the

Associations of Professional Engineers in all Atlantic Provinces and Ontario.

[61] He testified the 1982 Valentine’s Day flood in Truro was the impetus for

most of the flood mapping in the area. He surveyed sections of the Salmon River which

he described in detail.

[62] Upon receiving his engineering degree, Mr. Thompson worked for both

engineering and excavating contractors. He has done civil engineering work in the four

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Atlantic Provinces, water management work, and flood plain work in Nova Scotia, New

Brunswick and Prince Edward Island. His company includes seven other people including

a survey engineer, and field and technical workers.

[63] No one objected to Mr. Thompson’s qualification statement which was

approved by the Board as follows:

Qualified as an expert in Civil Engineering and Environmental and Municipal Design, able to give evidence as to the appropriate measures that can be implemented, and their relative feasibility, to mitigate the effects of flood water and/or storm water inundation relevant to the subject properties; and analyse the effect and effectiveness of said measures.

[Exhibit M-13, p. 5]

[64] Mr. Thompson explained that he was retained by the Society to:

Locate the building in accordance with the Town's floodplain requirements and to provide some advice on how to manage the storm water and mitigate any anticipated adverse effects that might result to storm water management and floodplain management.

[Transcript June 2, 2015, p. 98]

[65] Mr. Thompson testified his Plans are storm water management plans

certified by an engineer. From an environmental standpoint, the whole purpose of the

Plans is to not create an adverse effect on anyone’s property.

[66] In creating the Plans, his surveyors took measurements from 400 points on

the properties using provincial monuments. His staff would shovel to the markers or to

the original ground. There was no frost at these locations. Consequently, the concern

raised by Mr. Eaton did not exist on the day these measurements were taken.

[67] The survey work was done by equipment called a “robotic total station”. On

the rod is a receiver. Wherever the rod is positioned a “servomotor” moves around, up

and down, and takes the shots. This is far different than the equipment available when

he first started to do surveys in flood areas back in 1972. In the past, it would be very

difficult to get two people to place the rod in exactly the same place. Today, because of

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the coordinates taken by the robotic total station, one is able to go back and replicate the

exact spot the measurements were taken.

[68] Mr. Thompson stated he considers the relative range of accuracy of his

topographic survey to be 30 millimetres or less than one inch. He says this is extremely

accurate. A surveyor would only do a higher degree of accuracy, if for example, one were

building a bridge across from here to Prince Edward Island. However, having 400 shots

for this small lot was more than sufficient to ensure the accuracy of the information and

designs.

[69] Mr. Thompson testified that to dig down to the original ground to find grass

is probably twice as much work. Normally only one person is required to use the robotic

total station. In this case, they needed two people: one person to dig the holes, the other

to take the shots.

[70] Prior to attending at the site to take these measurements, they would decide

where there should be a groupings of points. For example, they would group points for

the edges of the asphalt driveway, the proposed building and the existing building.

[71] The elevation measurements are then entered into computer software, of

which he has three different types. The software interpolates between the points and

produces the contours maps.

[72] Once Mr. Thompson’s office has produced the contour maps, they are

compared to the map provided by the Town, being the 1988 Flood Reduction Map

described above. This map has the best measurements available to him. The

measurements of that map maybe slightly different than his because as they were

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developed from an aerial photograph as opposed to the technique he has used on the

ground. In a review of the two maps, he was satisfied the numbers matched up well.

[73] Mr. Thompson stated the 1988 Flood Reduction Map shows that waters will

rise in the 1:100 year flood to 15.2 metres. The entire area, other than Mr. McCabe’s

home and higher elevations in the back of his lot where his machinery is, sit well above

that limit at 15.9 metres. They are, therefore, 700 millimetres or 28 inches higher than

the rest of the area. However, almost all of the lands in this area are at or below 15.2

metres.

[74] The computer program he uses creates a 3-D model of the entire site. From

this contour map, they are able to create the Existing Conditions Plan which shows what

they found on the lands as they currently exist. From the contour maps they plot out how

the water currently flows in the 1:100 year flood. He described in detail how the water

currently flows from Mr. McCabe’s property and through a low point on High Street across

and into the Society’s property.

[75] In storm water management designs, one of the things he looks for is the

width of floodway on High Street where the waters exit Mr. McCabe’s property and enter

the Society’s. They maintain that width so the water flows across High Street the same

as it does now.

[76] The other aspect of storm water management is to look at where water may

pond and hold on the property. This is often called “a facilitation pond”. Mr. Thompson

ensures that the same volume of water is ponded on the Society’s lands when the

construction is finished.

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[77] Mr. Thompson determined the amount of water which would currently pond

on the Society’s property in a 1:100 flood is 158 cubic metres of water. The next thing he

considered was the roof on the building as one is substituting an asphalt surface for grass.

Mr. Thompson explained how he considers the amount of water that will run off the roof

which needs to be included in the ponded area. Environment Canada requires a building

design to specifically address the 15 minute rainfall which it maps. In Nova Scotia,

generally, a peak rainfall will produce approximately 25 millimetres of rain in 15 minutes

and then tapers off. Consequently, roof drains or gutters have to be designed to

accommodate that amount of water. He commented some municipalities require flat roofs

to catch some and store some of the rain water.

[78] In this case, the building design has not been fully completed to know

whether the roof design on this property will capture any of the storm water. As a result,

Mr. Thompson assumed none of the rain would be stored on the roof and all of the water

coming off the roof must be stored on the ground. Consequently, they added 22 cubic

metres of water to the required ponding capacity of the Society’s lands.

[79] With these two figures, Mr. Thompson determined the lands after

construction must be capable of storing 180 cubic metres of water.

[80] After calculating the amount of storm water which must be managed, the

building was placed onto the map. The cuts and fills as described in the LUB were done

to ensure the same volume of water will be ponded and held by the Society’s property

pre- and post-construction.

[81] Mr. Thompson’s storm water management design in Proposed Conditions

#1 holds 180.68 cubic metres of water in just that portion of the Society’s lands around

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the proposed building. It places a berm at the front with a reinforced concrete foundation

walls with a maximum exposure of 1 metre at the back. In the Proposed Conditions #2,

with a 3 metre berm around the building, the ponding area only holds 126 cubic metres

of water. Therefore, Mr. Thompson recommended the former design.

[82] To ensure the cut and fill design of the storm water waste management are

constructed in accordance with his engineering instructions, Mr. Thompson states he

surveys the lands after construction is completed. In relation to his retainer with the

Society, he stated those discussions have not occurred yet, but that has always been his

practice in the past.

[83] Mr. Thompson has been doing storm water management since 1988. He

testified that in all of his designs, he always looks to ensure the construction does not

cause an increase in downstream water or any problems for other properties:

I wouldn't want to do anything anywhere that would cause water to raise downstream and cause problems on other properties. I've worked very hard in my projects to make sure this doesn't happen. In this particular place I do think we have a good design. I do not think that there's an average effect to fear from this. I believe that we have more than adequate width of flow around the building, the same that's provided on High Street at the same level, and quite a bit more than perhaps we've done in a lot of these projects in the past.

[Transcript, June 2, 2015, p. 117]

[84] As far as Mr. Thompson is aware, there is no better science in producing a

storm water waste management than what he has done. Mr. Thompson stated he has

never in his entire lifetime had anyone argue the accuracy of his survey work. If anyone

is concerned with his information, they are welcome to do their own survey.

[85] In relation to the berm, Mr. Thompson stated those are usually required in

instances where the building is to have a basement. The berm is necessary to protect the

basement from flooding. In this case, the building does not have a basement. It will be

built on a concrete slab. The slab will be built on concrete walls which are superior, more

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secure, and better able to resist the forces of water and ice. They are used for flood

situations and storm water management designs.

[86] Mr. Thompson stated that since 1972, there has never been a 1:100 storm.

In making that statement, those are from his observations. To the best of his knowledge,

water elevation statistics are not kept or monitored.

[87] In terms of the building, with his design for the property, obstructing the flow

of water or creating any backup for Mr. McCabe, Mr. Thompson stated it is designed to

replicate the conditions that currently exist and should not adversely affect Mr. McCabe’s

property in any way. Again, he emphasized Mr. McCabe’s home is 28 inches, 700

millimetres above, the 1:100 flood level. He stated at page 125 of the Transcript:

Q. What about the business of the ... of Mr. McCabe's ... what sounded like sort of his main point in questioning your client, that building a structure there is going to obstruct the water, create a backup, and cause flooding that heretofore he has not suffered? A. Well, we've tried to replicate the conditions that are there now and, in particular, the width that it would flow across High Street. So I'd say that as long as you have the same width as you had before you started, and a place for the water to go, it shouldn't back up into Mr. McCabe's. As discussed earlier, Mr. McCabe's is some 700 millimeters above this location. The crossing at High Street is 15. He's 15 9. There's a lot of upstream area (to be carried in?) Mr. McCabe's property, and he's receiving water from others, which has to flow through and flow through this property and out to the river. Although I do understand there has been some work done above Mr. McCabe's and in the area to try to correct some conditions from the past, poor culverts or poorly maintained culverts and some other things.

6. Andrew MacKinnon

[88] Mr. MacKinnon is the current Director of Public Works for the Town of Truro,

and has held this position for 7-8 years. He began working with the Town in 1981 doing

surveying work for six summers while he attended school. He attended the Nova Scotia

Survey Institute, taking property mapping for one year and land surveying for another.

The latter included topographical mapping where one learns all of the intricacies of the

surveying equipment, as well as plans and accuracies.

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[89] He attended and received a Bachelor of Science in Survey Engineering at

UNB. After completing his university education, Mr. MacKinnon began full-time work with

the Town in 1987. For approximately the first ten years, he was doing all of the Town’s

surveying, plans, and layouts for all of the construction. Since then he has worked

progressively up into his current position.

[90] With no objections, Mr. MacKinnon was qualified as an expert:

Qualified as an expert in Municipal Engineering, including Storm water and Waste Water Management and Flood Damage Reduction, able to give evidence as to the effectiveness and viability of the storm water management and flood damage reduction proposals being advanced with respect to the subject development in this Appeal.

[Exhibit M-12, p. 2]

[91] Mr. MacKinnon’s function in a rezoning application is to do an initial quick

review where the applicant will give him a general description of the proposal on the site

and ask if there are any concerns. In this case, Mr. MacKinnon was concerned about the

storm water management because he knew the lands contained water and are in the

floodplains. He expressed his concerns and that is why it is mentioned in the Final Staff

Report to Council dated October 28, 2014 [Exhibit M-2, Tab 4, p. 4-3].

[92] Mr. MacKinnon explained the difference between LUB 9.3.8 which requires

flood proofing in the 1:100 flood and storm water management. For the latter the Town

is looking for the following a design where the pre-and post-construction flows of storm

water are the same. In questions by Mr. Richard he stated:

Q. Yes. What is your view as the director of the department as to the... the ... sorry, the fundamental purposes of Section 9.3.8?

A. Well, the fundamental purposes are for flood proofing of development on the floodplain in that one in a hundred zone so they take it up to a certain elevation and flood proofed.

Q. Now how does flood proofing relate to stormwater management in that context?

A. It doesn’t so much to ... It’s more of just what it is, flood proofing. Stormwater management is more of an upstream and equating your flows ... your pre-

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development/post-development flows. In this case, I was asked to look at this so that the stormwaters were dealt with appropriately and by Council so that it met the flood proof ... floodplain by-law and also the stormwater issues were dealt with because of the concerns of the water going through that site, which is the concern that I had had.

[Transcript, June 2, 2015, pp. 185-186]

[93] Mr. MacKinnon testified he has reviewed Mr. Thompson’s storm water

management plans in the past, stating Mr. Thompson is the person people retain for any

of the developments in the floodplains. He knows of Mr. Thompson’s extensive

experience in doing topographical surveys and site designs.

[94] Mr. MacKinnon testified that, normally, the storm water management plans

are provided at the development permit stage. He becomes involved as the Director in

issues like this, where the plans have been requested before that stage.

[95] He testified to his review of the Plans of Mr. Thompson. He agreed with Mr.

Eaton that the first thing you do is ask, does it make sense, and is it doable.

[96] As a very experienced surveyor, Mr. MacKinnon testified he was able to

review the drawings and understand the three dimensional review of the Plans based on

the contours. He is able to see the water flows and elevations prior to the construction.

He also knows what has been done to ensure the same amount of water crosses through

the property at the same flows after the development is completed.

[97] Mr. MacKinnon also testified floods in the area, generally, reach a certain

elevation. However, it depends on what type of flood waters are being referenced. Mr.

MacKinnon testified the Town has been doing storm water management with all of their

developments since the late 1990s. For the County, it is a relatively new concept. He

stated the floods on East Queen Street are very different from the storm water flooding

from County developments:

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A. And typically our floods always seem to reach to a certain elevation. But it depends on what kind of flood. If it’s an ice-jam flood on East Queen Street then the water backs into here, that’s completely different than a flood from all of the irresponsible development in the County that’s been done without any storm water management that’s been sending heavy flows down to High Street from Princeton Heights and Ice Pond Drive and all those subdivisions that were done without any storm water management. Q. They weren’t? A. No, the County has never done stormwater management that I’m aware of. Q. Yeah. A. Unless the developer has done it on his own. That’s where the stormwaters come from.

[Transcript, pp. 197-198]

[98] Mr. MacKinnon said the amount of water this building displaces on this very

large floodplain is a like a needle in a haystack.

[99] Mr. MacKinnon testified there are many ways of flood proofing a property

and that a berm is not the only way. Developers have dug reserve tanks or they could

make an impermeable surface. There are many options they could consider.

Furthermore, Mr. MacKinnon states that Section 9.3.8 specifically states a berm is not

necessary where “the backfilling has been designed by a Professional Engineer”.

[100] Mr. MacKinnon explained engineering documents “For Information Only”

are to ensure a contractor does not accidentally use them for construction purposes.

Those will be done later when all of the different aspects of the building design, for

example the roof, are finished. The drawings used by the contractor for the construction

will read “For Construction”. When the engineer, for example Mr. Thomson, returns and

resurveys the lands after the construction to confirm they have been done in accordance

with this storm water management designs, another survey plan will be produced and

stamped “For Record Information”. As a matter of course, the Town receives the latter

upon completion of the construction.

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[101] He testified Mr. Thompson’s Plans show that storm water management can

be achieved on this site. It also shows the type of design he is proposing for the storm

water management to meet the flood LUBs.

[102] Mr. MacKinnon testified when an engineer has stamped their drawings they

are authorizing the calculations and the measurements are correct. Mr. MacKinnon is

able to rely upon that authorization and stamp. Therefore, he would never check an

engineer’s calculations that had been authorized and stamped as being correct.

[103] With respect to the asphalt parking area, Mr. MacKinnon confirmed he is

not concerned with this. It is downstream from the proposed building and as Mr. Eaton

has said, asphalt will in fact help water flow across it faster than grass or gravel.

[104] In questions from Mr. Eaton, Mr. MacKinnon confirmed that if the

development was not constructed in accordance with the storm water management plan

approved for the final building design, the property construction, including the cuts and

fills would have to be redone (Transcript, p. 205).

[105] Mr. MacKinnon explained that from his review of the contours on the Plans,

there is less restriction on the flow of water after construction such that it looks like there

is better drainage off Mr. McCabe’s property than what currently exists.

[106] With numerous questions on whether the newly constructed building will

back-up the flow of water, Mr. MacKinnon firmly stated “no”. His explanation includes:

A. No. There’s no backing of water up. The water is going to be at the 14.6 elevation and it’s going to be dealt with. It’s ... And if there’s a flooded 15 or 15.2 [metres] it’ll be the same as a previous flood at 15, 15.2.

[Transcript, p. 211]

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[107] When Mr. Eaton’s questions equated the flow of the Salmon River to the

flow of rainwater over these two properties, Mr. MacKinnon stated:

A. The same distance, but you’re talking about a river and I’m talking about a flat lawn with a little bit of a depressed area in it. Talking about two different things. Talking apples and oranges.

[Transcript p. 214]

[108] Mr. MacKinnon further explained and gave details on which documents

were showing the water swale and how they were improved by the design:

Q. There’s two points coming up from 14.7 to that point and the ground rises up and to me there is no swale there. A. No, there isn’t, but that’s ... that’s where the flood waters go. Q. But this was always called a swale. A. No, this isn’t a swale. You ... You go to 02, it’s called a swale. On this page he’s just showing the direction of the flow arrows. And that is the direction it goes. And it doesn’t flow very well on there. So if you go to 02 and look at the same area, you say it’s a red/pink colour, whatever you call that colour ... Q. Yeah. A. ... and now it’s labelled as a drainage swale. And you see a new proposed elevation written in there as 14.55. And now you see the 14.7 contour goes in a different shape because now those contours reflect the new drainage swale that will be developed through there so that the water will drain better than what it currently does. It currently goes that direction but not very well. And in the proposed it’s there and it will flow well. And I don’t need him to provide me with cross-sections of that. I know he’s done it in a model and I can look at this and I can see that this is better than that.

[Transcript, pp. 215-216]

[109] On questions from the Chair, Mr. MacKinnon confirmed in the low slower

moving waters, at levels as little as 4-6 inches above the lawn depressions of the Society’s

lands, would only increase the elevations to 14.75 and 14.8 metres. This is still a half a

metre below the 1:100 storm of 15.2 metres.

[110] Storm water management addresses designs to permit the same flow of

water after construction as before. Mr. MacKinnon confirmed that when water levels are

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at 15.2 metres, there is such a sufficient large volume of water that there is, absolutely,

no restriction on the water flow in the area of Mr. McCabe’s and the Society’s properties:

A. And ... And I guess if we ... if we’re to look at that kind of volume of water on that site and worried about the exit of it, we’re then not dealing with a restricted area.

[Transcript, p. 220]

[111] Mr. MacKinnon confirmed the Town’s standard process. At the time a

developer requests a development permit, the Town always requires an engineer certified

storm water management plan that shows the same amount of water will flow through the

lands pre- and post- construction.

[112] Mr. MacKinnon stated the 1988 Flood Reduction Map elevations are taken

from aerial shots. The 15.9 metre at Mr. McCabe’s home would be a high point on his

front lawn. The Board notes the pictures presented by Mr. McCabe show a basement

window. Although the bottom of this window may be below this 15.9 level, no

measurements were provided to the Board by Mr. Eaton. The Board further notes,

however, that the bottom of a 24 inch window would still be above the 15.2 m. height of

the 1:100 storm.

[113] Mr. MacKinnon concluded his evidence by confirming that, regardless of

where the water flows from, whether it is from the Salmon River or storm water from the

County construction behind Mr. McCabe’s house, the design of the Society’s property is

to ensure there is the same flow of water over its lands when the construction is finished

as there is currently:

Q. Doesn’t matter where that water is coming from, the flow from his property onto the other must be the same when the construction is finished. A. Correct.

[Transcript, p. 232]

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7. Jason H. Fox

[114] Mr. Fox’s CV shows he received a Bachelor of Arts, Major in Geography

before graduating with a Masters of Urban and Regional Planning from Queen’s

University in 1998. During his education he won three academic awards including the

Canadian Institute of Planners Award for academic excellence in 1998 for high academic

standing.

[115] Mr. Fox spent approximately one year working with architect planners in

Toronto, 1.5 years with Pictou County, one year with the Atlantic Shopping Centres

Limited in Stellarton, three years as a Senior Planner with the Municipality of East Hants

and the Director of Planning and Development Services with the Town of Truro for the

last 11 years.

[116] As the head of the Department, Mr. Fox is responsible for policy planning,

development planning, heritage preservation, urban design guidelines, building

inspections, by-law enforcement, geographic information systems, civic addressing,

subdivision approvals, economic development, and municipal sustainable initiatives. He

sits on the Town’s Senior Management Team, provides professional advice to Town

Council and its Chief Administrative Officer. Mr. Fox is a member of the Canadian

Institute of Planners, Licensed Planners of Nova Scotia, and the Nova Scotia Planning

Directors’ Association (President 2006–07) and has been on its Conferencing Organizing

Committee since 2004. Mr. Fox won the award for the Canadian Institute of Planners’

Award for planning excellence in 2011.

[117] With no objections, Mr. Fox was qualified as an expert as follows:

Qualified as an expert in Urban and Regional Planning able to give evidence on the application and intent of municipal planning regulations, especially as they relates to flood damage reduction and storm water management.

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Qualified as an expert in the Town of Truro Municipal Planning Strategy, able to give evidence as to its intent and its application to the specific properties material to this Appeal; as well as being able to give evidence as to the extent to which Council’s decision with respect to the proposed development reasonably carries out the intent of the Municipal Planning Strategy.

[Exhibit M-11, p. 2]

[118] In Mr. Fox’s Staff Report to Council dated October 28, 2014 [Exhibit M-2,

Tab 4], he stated the Society’s current building is a converted dwelling that would be

considered a legal non-conforming use in this Industrial Zone. To permit the development

of a new residential care facility, not permitted in the Industrial M1 Zone, requires rezoning

the lands to Institutional P3 Zone.

[119] Mr. Fox described the Society’s property as generally flat with a few mature

trees on a large open grassed area. It is situated in a mixed-use area of low density

residential, commercial, and warehousing uses. The property is within the Floodway

Fringe E4 Overlay and is below the 1:100 flood elevation such that new structures on the

property must be flood proofed.

[120] In the Staff Analysis section, Mr. Fox stated the response of the Town

engineer will require flood proofing work as follows:

…The Town Engineer also conducted an initial review of the proposal and did not have any concerns about servicing the development. He did, however, note that the building is in the 1:100 flood way and noted that the area where the proposed building is to be located is a low lying area that acts as a storm water retention area during flood events. He requested that the applicant incorporate some storm water retention measures into the development as part of the required flood proofing work. …

[Exhibit M-2, Section 4, p. 4-6]

[121] The report also appended their analysis of all of the relevant policies within

the MPS, including the following relevant subsection of Policy IM-17 (d) and (l):

Policy IM-17 When considering a rezoning application or other Land Use By-law amendment application that includes a specific development proposal it shall be a policy of Council to have regard for the following matters:

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(d)

the adequacy of sewer services, water services, waste management services and storm water management services;

The Town Engineer’s Office has been asked to comment on the adequacy of municipal services and the need for any storm water management measures. The Town Engineer has indicated that the location of the new structure is currently a low lying area that provided some storm water storage during flood events. It is recommended that the applicant look at some storm water retention measures as part of this development. The property is in the 1:100 Flood Way Fringe and will need to be flood proofed so it is recommended that the engineer designing the flood proofing also incorporate some storm water retention in the design.

[Exhibit M-2, Section 4, p. 4-10]

(l) suitability of the site in terms of

grades, soil and bedrock conditions, location of watercourses, marshes, swamps or bogs;

Aside from the property’s location within the 1:100 Flood Way, Staff are not aware of any site constraints. The Town’s LUB requires flood proofing of all buildings in the 1:100 Flood Way.

[Exhibit M-2, Section 5, p. 4-11]

[122] Mr. Fox testified a rezoning application would first be reviewed by the

development officer. The officer would have determined this residential care facility would

not be permitted in the Industrial Zone and therefore would require rezoning. At that point,

the file would be transferred to Mr. Fox who would then explain to the Applicant the

process and the various stages necessary to advance the application.

[123] Mr. Fox testified the Floodway Fringe E4 is the area known as 1:100

floodplain area. This area was based on the scientific studies that arose from the flood

damage reduction program initially done under the mapping program in the 1980’s and

refined and updated in 1998.

[124] Mr. Fox stated the intent of the Policy under section 9.3.8 of the MPS (being

E-38 and E-39) and the corresponding LUB 9.3.8, are to ensure there would be sufficient

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flood proofing such that any building on lands in E4 would not flood in the event of a 1:100

flood. The lands will flood but the buildings will be actual islands in the floodplain

(Transcript p. 241).

[125] Mr. Fox explained how the location of the building conforms to the existing

LUB regarding setbacks. He stated under the general provisions in the LUB 4.1.10 (a),

buildings are permitted to be in conformity with the existing setbacks of those properties

within 200 feet of the proposed building. In this case the lands are considered “public

use” and are permitted to be setback provided the yards are not less than three metres

(10 feet). It reads as follows:

4.1.10 Conformity with Existing Setbacks a) The front and flanking yard setback requirements for a new main building in a Local Commercial (C3), General Commercial (C4), Adult Entertainment (C5), Industrial, Public Use, or Environmental Management Zone may be reduced to the average front or flanking yard setbacks of existing neighbouring buildings within 61.0 m (200 ft) that front or flank upon on the same street provided that the minimum setbacks is no less than 3.0 m (10 ft).

[Exhibit M-4, p. 4-2]

[126] Mr. Fox explained the two adjacent structures within 200 feet are much

closer to Queen Street. The proposed development is not closer than the 10 feet required

by the LUB. Furthermore, the development officer may permit variances from the LUB.

[127] Mr. Fox considers this proposed development a residential care facility and

is not a home for special care. He states the 1:100 floodplain area permits residential

development. The ones that are excluded are those where the majority of the people

living in the accommodations would have mobility issues. That is not the case with this

proposal. The Town also has a requirement that any residential facility over four units

must have an accessible unit. One accessible unit within this proposed development

does not change it from being a residential care facility to a home for special care.

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[128] With respect to Policies E-26 and E-27, Mr. Fox testified these do not apply

to the proposed development. Firstly, Policy E-26 requires lands on East Queen Street

that have historically caused extensive flooding to be designated E-2 Zone and prohibits

permanent structures. Mr. Fox stated those areas are the 1:20 flood plains shown on the

Flood Reduction Map. The lands of the Society and Mr. McCabe are in the 1:100 area.

E-27 in turn does not apply because their properties are not in the E-2 Zone.

[129] Mr. Fox confirmed his role in dealing with any storm water management is

that it is one of the issues reviewed in every application through the Public Works

Department. It is the same as any of the other specific components considered such as

servicing or traffic.

[130] It is at the development permit stage that the Town would receive stamped

certified engineering plans for storm water management. Mr. Fox stated these types of

management plans under LUB 9.3.10 are not required at the rezoning stage, but rather

at the development permit stage (Transcript p. 252).

[131] No actual development proposal has been submitted as yet. This is merely

the rezoning of the lands to permit such a proposal to come forward. As this is a rezoning

application only, the Town cannot require a developer to adhere to a particular specific

building design at this stage.

[132] Mr. Fox stated many things may happen between now and the final drafts

of the building proposal. It may adapt side yards or front yards or seek other variances

from the development officer. When a development proposal is submitted, whether it is

for an as-of-right industrial or institutional development, it will have to meet the

requirements of the Institutional (P3) Zone and the environmental management LUB’s for

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storm water management. These plans will have to prove the post-construction storm

water flows will be the same or better than the pre-construction flows.

[133] In accordance with Council’s directive there would be no development

permit granted for this site until there is a satisfactory storm water management plan.

Specifically, in relation to this case, as to the wording of the motion by Council, the

rezoning would not be finalized until the storm water management plan issue had been

addressed.

II ISSUES

[134] The issue in this Appeal is:

1. Did Council’s decision to rezone 454 Queen Street from Industrial (M1) Zone to Institutional (P3) Zone reasonably carry out the intent of the MPS?

III LAW

[135] The Board is not a Court. The Board only has the power given to it by

legislation. It hears planning appeals under the MGA. The Board is to determine whether

Council’s decision reasonably carries out the intent of the MPS.

[136] The Nova Scotia Court of Appeal in Archibald v. Nova Scotia Utility and

Review Board, 2010 N.S.C.A. 27, summarized the principles that govern appeals before

the Board as follows:

(1) The Board usually is the first tribunal to hear sworn testimony with cross-examination respecting the proposal. The Board should undertake a thorough factual analysis to determine the nature of the proposal in the context of the MPS and any applicable land use by-law. (2) The appellant to the Board bears the onus to prove the facts that establish, on a balance of probabilities, that the Council’s decision does not reasonably carry out the intent of the MPS.

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(3) The premise, stated in s. 190(b) of the MGA, for the formulation and application of planning policies is that the municipality be the primary steward of planning, through municipal planning strategies and land use by-laws. (4) The Board’s role is to decide an appeal from the Council’s decision. So the Board should not just launch its own detached planning analysis that disregards the Council's view. Rather, the Board should address the Council's conclusion and reasons and ask whether the Council’s decision does or does not reasonably carry out the intent of the MPS. Later (¶ 30) I will elaborate on the treatment of the Council’s reasons. (5) There may be more than one conclusion that reasonably carries out the intent of the MPS. If so, the consistency of the proposed development with the MPS does not automatically establish the converse proposition, that the Council’s refusal is inconsistent with the MPS. (6) The Board should not interpret the MPS formalistically, but pragmatically and purposively, to make the MPS work as a whole. From this vantage, the Board should gather the MPS’ intent on the relevant issue, then determine whether the Council’s decision reasonably carries out that intent. (7) When planning perspectives in the MPS intersect, the elected and democratically accountable Council may be expected to make a value judgment. Accordingly, barring an error of fact or principle, the Board should defer to the Council's compromises of conflicting intentions in the MPS and to the Council’s choices on question begging terms such as "appropriate" development or "undue" impact. By this, I do not suggest that the Board should apply a different standard of review for such matters. The Board’s statutory mandate remains to determine whether the Council’s decision reasonably carries out the intent of the MPS. But the intent of the MPS may be that the Council, and nobody else, choose between conflicting policies that appear in the MPS. This deference to Council’s difficult choices between conflicting policies is not a license for Council to make ad hoc decisions unguided by principle. As Justice Cromwell said, the “purpose of the MPS is not to confer authority on Council but to provide policy guidance on how Council’s authority should be exercised” (Lewis v. North West Community Council of HRM, 2001 NSCA 98, ¶ 19). So, if the MPS’ intent is ascertainable, there is no deep shade for Council to illuminate, and the Board is unconstrained in determining whether the Council’s decision reasonably bears that intent. (8) The intent of the MPS is ascertained primarily from the wording of the written strategy. The search for intent also may be assisted by the enabling legislation that defines the municipality’s mandate in the formulation of planning strategy. For instance ss. 219(1) and (3) of the MGA direct the municipality to adopt a land use by-law "to carry out the intent of the municipal planning strategy" at "the same time" as the municipality adopts the MPS. The reflexivity between the MPS and a concurrently adopted land use by-law means the contemporaneous land use by-law may assist the Board to deduce the intent of the MPS. A land use bylaw enacted after the MPS may offer little to the interpretation of the MPS.

[25] These principles are extracted from the decisions of this court in: Heritage Trust, ¶77-79, 94-103, 164; Lewis v. North West ¶ 19-21; Midtown Tavern, ¶ 46- 58, 81, 85; Can-Euro Investments,¶ 26-28, 88-95; Kynock v. Bennett (1994), 131 N.S.R. (2d) 334, ¶37-61; Tsimiklis v. Halifax (Regional Municipality), 2003 NSCA 30 ¶ 24-27, 54-59, 63-64; 3012543 Nova Scotia Limited v. Mahone Bay Heritage and Cultural Society, 2000 NSCA 93, ¶ 9-10, 61-64, 66, 84, 86, 89, 91- 97; Bay Haven Beach Villas Inc. v. Halifax (Regional Municipality), 2004 NSCA 59, ¶ 26.

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[137] Mr. McCabe has the burden to prove Council's decision did not reasonably

carry out the intent of the MPS.

IV SUBMISSIONS

[138] Mr. Eaton provided submissions on behalf of Mr. McCabe which generally

mirrored his testimony. He argued the Plans before the Board do not make sense and in

the long term will not work. He states water will back up and cause problems for Mr.

McCabe, although he was unable to provide any factual foundation for his statement. In

particular, he could not explain it, when considering the facts before the Board. If the

water is at 15.2 metres all of the land is covered with water and its flow is not impeded.

Water move slower at lower volumes. The lowest level of the holding pond on the

Society's land is 14.1 metres, almost one metre below the lowest point of Mr. McCabe's

basement window which appears higher than 15.2 metres (the only measurement is the

high point on his front lawn at 15.9 metres). When water is at the level of Mr. McCabe's

basement window there is no impediment to the water flow.

[139] Regardless of either storm proofing option, it is Mr. Eaton's interpretation of

the LUa that any development on the flood plain requires a berm to be built. With a berm,

storm proofing cannot be achieved. It will hold less water and cause problems for Mr.

McCabe's lands. As the storm water cannot be managed with the mandatory berm,

nothing can be built on the Society's property.

[140] The Board also permitted Mr. McCabe to provide submissions. Mr. McCabe

stated Council has not reasonably carried out the MPS in relation to Policies E-26 and E-

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27 as all of the lands (his and the Society’s) should have been rezoned E-2. This would

have prohibited any permanent structures from being built on the Society’s lands.

[141] Mr. Cotterill stated the Society is ready, willing, and able to comply with

whatever conditions are placed on the development by the Town. It has been more than

two and a half years since November of 2012, when they first approached Mr. Fox to

have the lands rezoned. He is concerned with the length of time this has taken and is

unsure when the Society will ever be able to build the building.

[142] Mr. Richard stated Council’s decision was concerned about storm water

management. It, essentially, buttressed the already-existing requirements necessary in

the environmental LUB, by making the Plans a condition of the rezoning approval.

[143] The Town stated Mr. Thompson and Mr. MacKinnon are professional

engineers. Mr. Richard argued the Town reviewed the storm water management Plans

certified by professionals based on the 1988 Flood Reduction scientific study of the

floodplains. Mr. Fox testified the Town based its demarcation of the corresponding zoning

on the scientifically-derived boundaries.

[144] The Town submits none of the evidence heard undermines the central

position that Council’s decision has reasonably carried out the intent of the MPS policies.

V FINDINGS

[145] In summary, the Board finds Council’s decision has reasonably carried out

the intent of the MPS.

[146] In coming to its decision, the Board has followed the Nova Scotia Court of

Appeal rulings. The Board has reviewed Council’s decision. It has then considered the

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MPS. The Board has read the MPS as a whole and given it a broad and liberal

interpretation.

[147] Specifically, the Board does not find that Council has failed to reasonably

carry out Policies E-26 and E-27. The Board finds these policies refer to the lands on

East Queen Street that have historically caused extensive flooding; that is the land in the

1:20 floodplain. Only those 1:20 lands are to be in the E-2 zone. Based on the 1988

Flood Reduction Map the lands of Mr. McCabe and the Society are not within the 1:20

floodplain area of East Queen Street. Rather, these two properties on East Queen Street

fall within the 1:100 floodplain area, which is an E-4 zone. Consequently, Council is not

required to prohibit all development within the 1:100 flood zone area. Specifically, the

Board finds this interpretation of Council is one the words of the Policies can reasonably

bear.

[148] The Board finds the 1:100 floodplain zone is extremely large, extending to

the Bay of Fundy. The Society’s property is but a very small piece of land in an extremely

large floodplain. Numerous properties have been developed within this floodplain.

[149] The Board notes the Town has been managing storm water and floodplains

in all of its development since the 1990s. There is a requirement for all developments in

the floodplain to prove that the development being proposed will permit the same amount

of water flow across the property after the construction, as it did pre-construction. This is

required when the development permit is being sought.

[150] The Board finds the Society’s lands were able to be rezoned by the Town

from an Industrial (M1) zone to an Institutional (P3) zone. In doing so, it considered the

MPS policies specific to this rezoning. Council made as a condition of its decision for

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zoning, that the Public Works Department approve storm water mitigation procedures to

alleviate potential flooding issues. In advance of this condition being met, the parties

agreed to fulfill this condition before this Appeal was completed.

[151] The Board accepts the evidence of Mr. Thompson that the lands were not

frozen at the time his 400 point measurements were taken, and there was no evidence

submitted to the contrary.

[152] The Board finds the storm water management Plans submitted and certified

by Mr. Thompson, showed the proposed type of development can occur on the Society’s

lands and that a storm water management design can be accomplished to ensure pre-

and post-construction flows remain the same. The Board finds there is no evidence

submitted to the contrary.

[153] As per Council’s directive, Mr. MacKinnon of the Public Works Department

approved storm water management Plans.

[154] The evidence of Mr. Thompson is supported by Mr. MacKinnon. The Board

finds both Mr. Thompson and Mr. MacKinnon have extensive surveying expertise, which

is superior to that of Mr. Eaton. The Board also finds Mr. Thompson and Mr. MacKinnon

to have more expertise in flood management than Mr. Eaton. Consequently, the Board

accepts the evidence of Mr. Thompson and Mr. MacKinnon over that of Mr. Eaton.

[155] As Council’s decision related to a rezoning application, the Board is not at

this stage analyzing any actual future development against the LUB. There is no specific

development proposal with all of the various details about a building that would be

provided to the development officer before being issued a development permit. As an

example, the roof design has not been determined. Depending upon the roof design,

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whether it is flat, pitched, or has grass and will absorb some of the rainwater, will

determine the storm water management for the lands.

[156] Furthermore, there can be variations to LUB requirements requested at that

time, such as side and rear yards. As the specific development has not been determined,

the Board will not speculate on a future design or a future decision the development officer

may make when the application comes before her/him. As pointed out by Mr. Fox, if Mr.

McCabe has any concerns about the development permit, he is entitled to appeal that

decision. However, a specific development is not before the Board at this stage.

VI CONCLUSION

[157] The Board finds Council made a storm water management design approval

as part of its requirement for the rezoning of these lands to Institutional (P3) Zone.

Certified engineering storm water management design plans showed the Society's

proposed development can be built on these lands and the pre- and post- construction

storm water flows will remain the same. The Board finds Council has reasonably carried

out the intent the MPS and requiring these Plans in advance of the rezoning being

formalized.

[158] Specifically, the Board finds the Appellant has not proven that Council's

decision has not reasonably carried out the intent of the MPS. The Appeal is dismissed.

[159] An Order will issue accordingly.

DATED at Halifax, Nova Scotia, this 17th day of September, 2015.

Document: 239755

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