By Kirk Starratt
An appeal of the findings of a judicial review relating to a controversial proposal to rezone farmland in Greenwich has been dismissed.
Judge Linda Lee Oland has dismissed an appeal by Greenwich landowners Peter Elderkin, Harold Forsyth, Hal Stirling, Doug Hennigar and Catherine Streatch heard in the Nova Scotia Court of Appeal in Halifax on Dec. 3, 2012. Oland’s written decision was released June 26.
“I would dismiss the appeal with costs of $2,000 inclusive of disbursements payable by the appellants (the Greenwich landowners) to the respondent (Service Nova Scotia and Municipal Relations Minister John MacDonell),” Oland said in her written decision.
Kings County council approved the rezoning of approximately 380 acres of agricultural land between Greenwich and the Town of Wolfville to create the Greenwich Comprehensive Development District in February 2011. However, MacDonell overturned the decision upon ministerial review March 23, 2011. The rezoning would have cleared the way for mixed commercial and residential development.
The applicants involved in the so-called “Elderkin et al” planning consideration filed a notice of judicial review with the Supreme Court of Nova Scotia on April 27, 2011. They appealed MacDonell’s decision on the grounds that he erred in law or exercised his discretion in an unreasonable manner. The judicial review took place in Halifax on Oct. 3, 2011.
In handing down a decision on Feb. 13, 2012, Judge Arthur Pickup said MacDonell was within his rights to overturn an earlier decision by Kings County Council to rezone the subject property.
In his written decision, Pickup said he was not satisfied the minister’s decision was unreasonable on the basis alleged by the applicants. The minister was exercising his discretion under the Municipal Government Act. Pickup dismissed the application and awarded $2,000 in costs to the respondent.
Following the appeal, Judge Oland said June 26 that in her opinion, the minister did not act unreasonably in failing to defer to the decision of the municipality.
“The judge correctly dismissed that ground for judicial review,” Oland wrote.
Oland stated the minister’s decision that the amendments were not reasonably consistent with the Statement of Provincial Interest Regarding Agricultural Land was within the range of permissible outcomes, both factually and legally. Oland said this satisfies the reasonableness standard of review. The judge also did not err by dismissing this ground of judicial review, she said.
“I see no error by the judge in his application of the reasonableness standard that would attract appellate intervention,” Oland wrote.
She said the judge recognized that the legislature chose the minister to be the interpreter of the Statement of Provincial Interest and gave him broad discretion in reviewing planning documents.
Oland’s decision stated the landowners’ application to rezone their property was highly controversial, attracting enormous interest and public engagement. Dozens of people spoke at public participation meetings and public hearings. Many people wrote to county council to oppose the removal of the agricultural designation of the subject land, while many others expressed strong support for the amendments.
Elderkin and Hennigar, who have spoken on behalf of the group of landowners in the past, could not be reached for comment prior to deadline for this edition. The rezoning matter initially began in 2004 when Elderkin made a presentation to Kings County council.
Elderkin currently has two properties for sale, listed with realtor Peter Morse of Royal LePage. One includes a farmhouse, barn and 14 acres of orchard including more than 1,000 trees and berry bushes on Highway 1 in Greenwich. The asking price is $1,390,000.
The second is a four-acre lot zoned Residential Comprehensive Development District just over the border in the Town of Wolfville. The asking price for this land is $599,900.