Three former Sackville councillors, with expertise in environmental issues, municipal planning and local government say Mayor Andrew Black was wrong to suggest to members of the public that some of their concerns were irrelevant as they commented on the proposed six-storey apartment building planned for 131 Main Street.
In addition, former councillors Sabine Dietz, Virgil Hammock and Geoff Martin argue Tantramar councillors should be free to consider a wide range of factors when they vote on whether to amend the zoning bylaw to allow JN Lafford Realty to construct a 71-unit building that is higher than 50 feet on the 1.3 acre site.
Several times during last Tuesday’s public hearing, the mayor interjected to say that environmental concerns, housing affordability issues and the shape and size of the proposed building are not factors council can consider because they’re not included in Sackville’s municipal plan or its zoning bylaw.
Sackville resident Susan Gourley was one of the first to speak at the hearing. Black intervened soon after she began.
Gourley: “So, I have two things to ask you. Did Nature Canada…”
Black: “Uh–” [interjecting]
Gourley: “I’m not allowed to ask you anything?”
Black: “Well, you can’t ask council questions, but it is really just to give a statement on the amendments.”
“OK, so I’m not aware if we’ve been signed off in Tantramar as a bird-friendly city from Nature Canada,” Gourley responded. “I’m just wondering. And, I’m not aware if there is any environmental review of this proposal.”
She then urged council to consider how to protect young birds in the Waterfowl Park given the shape and size of the proposed building and its large number of windows. Black interjected again when she suggested the building’s apartments would not be affordable.
“Sorry, Ms. Gourley, the comments are for the two [zoning] amendments,” the mayor said. “The pricing of the building, the rental amounts of the building have nothing to do with the two amendments that are being proposed.”
After Gourley said birds would strike the building’s glass balconies and urged council to consider effects the tall building would have on birds, Black interjected again.
“The general look of the building, the shape of the building, council again has no decision over what the building looks like,” he said. “What the building looks like is in the hands of the developer.”
Black also rejected former Sackville councillor Sabine Dietz’s call for council to vote against the zoning amendments because flooding in that location could endanger peoples’ lives.
“As council, you cannot put your head in the sand and say it’s a safe location. It is not,” she warned.
Black argued, however, that there’s nothing in the zoning bylaw or municipal plan to prevent the developer from building in a flood-risk zone.
In a follow-up e-mail to council, Dietz acknowledged that council is hampered by the current bylaw and municipal plan.
“However, that is a very narrow interpretation of your role and power,” she wrote.
“As council, if something is wrong, or incomplete, or puts people at risk, then you can act. In this case, you can indeed vote against the re-zoning of this particular property.”
“The mayor shouldn’t be using his chair as a bully platform,” said Virgil Hammock in an interview with Warktimes. “He should appear neutral.”
Hammock, who served 13 years on Sackville Town Council and seven on the planning commission, added that councillors are elected to make political decisions and should be free to make their own judgments without the mayor declaring in advance what they can and cannot consider — a point also made by Mount Allison Politics Professor Geoff Martin, who served on Sackville Town Council from 1998 to 2004.
Martin referred to Section 48 of the Local Governance Act which states that the mayor is “subject to the direction and control of council.”
“The mayor has no authority to tell members of the public to limit their remarks to certain subjects,” he adds, “and he has no authority to be telling councillors what they can say and do,” a reference to Mayor Black’s warning as the public hearing began that although councillors could ask questions “a discussion or debate involving members of council is inappropriate.”
Martin also points out that the law requires councillors to act in the best interests of the whole municipality.
“Opinions may differ on what those best interests are, but councillors are entitled to their opinions,” he said.
Response from Mayor Black
In an e-mail to Warktimes, Mayor Black responded:
“I am not telling the public nor council what they can or cannot say. In this case there are two amendments being proposed by the developer through Plan 360….the rezoning of the subdivided piece of land and the changing of the allowable height. As I said in the meeting, the look of the building, the heritage features of the building, the price of the units being proposed, the flood plain issue……..none of these concerns are addressing the amendments to the bylaw specifically. Did this stop people from saying those things anyway?…….I think it did not.
“People got to say what they wanted to say, but I wanted to interject when I could to make sure that people were aware that these specific concerns they had (as listed above), while important to state, are not about the proposed amendments. Some of the other comments that were made…..visual landscape of the area, the possible looming presence of the building, the concerns around firefighting, possible traffic increases, possible impact on water table/geothermal, etc…….directly target the proposed amendments as submitted.
“Regarding council, I was not trying to tell them they couldn’t say anything, in fact a couple of councillors did ask questions, but to make sure they understood the intent of the public hearing. That this part of the process was for members of the public to address council and, if needed, for council members to get clarification on something that was said in an address. This is why I made sure to ask council if they had any questions or comments after each person got up to speak. As I said in my opening about the process, questions being asked of council by the public and council potentially debating/supporting a topic is not appropriate.
“The issues of “affordability”, flood plains and heritage need to be looked at as our new municipality addresess the municipal plan and the zoning bylaws that we operate under. I stated that a few times during the public hearing and I believe it to be true. But under the laws that we currently operate by, those issues are not controllables and I would argue that if council defeated a motion of a zoning amendment on these grounds, there would be a quick referral of this decision to the assessment and planning review board.”
Rebuttal from Geoff Martin
“My experience with Municipal Plan by-laws is that there is often flowery and vague language and the values are open to interpretation. In addition, I disagree that councillors must be bound to an aging municipal plan by-law that they did not pass or have a chance to amend. It is not like the mayor is a judge and the council is a jury that receives his charge and must abide by it. The municipal council is explicitly a political body. That is why they are elected, unlike judges in this country. I fall back on the language in the Act, which gives wide latitude to mayor and councillors to represent citizens as they see fit, so long as they don’t veer into discriminatory or harassing conduct. If a negative decision was overturned by the provincial planning appeals board then so be it. To me that would say a lot about the planning appeals board.”