[halifaxboyns]

HRM Parking requirements for Jazz (Halifax Peninsula R-3 Zone) -

1 parking space 9 feet x 20 feet - individually accessible.

Right from the 1960's...

Obviously for a project like this :

a) Do not need 1 space per unit

b) Spaces do not need to be anywhere near this big. HRM has ignored the fact that cars have gotten smaller over the past 40 years... i.e. smaller Japanese cars that started to come to North America in the early 1970's...

HRM Staff indicate that they do not have the authority to modify size or number of parking spaces with a variance under the Land Use Bylaw. If there are any planners out there that would can find a way for us to have the right to demand a variance on this, would love to hear from you...

We can get a credit for 2 parking spaces for providing bike parking...so we would need 60 parking spaces for 62 units...

Peter Polley
POLYCORP

I think if I did my metric conversion correctly; Calgary uses a parking stall size requirement quite similar as do many places in Alberta. I'd guess that it's a pretty universal size concept - except out here, it is usually too small (since the pick up truck and SUV reign supreme).

As to the variance powers, here is an excerpt from the HRM charter:
"259 (1) A development officer may grant a variance in one or more of the following terms in a development agreement, if provided for by the development agreement, or in land-use by-law requirements:

(a) percentage of land that may be built upon;

(b) size or other requirements relating to yards;

(c) lot frontage or lot area, or both, if


(i) the lot existed on the effective date of the by-law, or

(ii) a variance was granted for the lot at the time of subdivision approval.

(2) Where a municipal planning strategy and land-use by-law so provide, a development officer may grant a variance in one or more of the following terms in a development agreement, if provided for by the development agreement, or in land-use by-law requirements:

(a) number of parking spaces and loading spaces required;

(b) ground area and height of a structure;

(c) floor area occupied by a home-based business;

(d) external appearances of structures;

(e) height and area of a sign."

So 259 (2) (a) limits the power of the DO to vary only the number of parking and loading spaces, not the size. No luck on parking stall sizes.

In Alberta, the MGA doesn't really set limitations on the variance powers of the Development Authority in terms of permits. But each city/town does things differently. For example: Calgary's LUB has parts of use definitions which cannot be varied, but other rules can be (and that includes rules which may not setout a numeric value to be achieved, like a setback). But other communities like the RMWB actually setout in their LUB limits to variance powers on things like setbacks, which in their case I believe is 50%, but they have no power to vary parking stall requirements (number or size).

It's been my experience when appealing a variance refusal in Alberta, that where a Development Authority doesn't necessarily have the power to grant the variance, the appeal body may have that power. So perhaps you may want to get a legal interpretation from that perspective? If the DO can't vary the size of the parking stall; could the community council that you appeal the variance too? Meaning - you'd be intentionally applying for a variance you know would be refused, on the hopes that the appealing body could overturn that decision. Risky though.

[POLYCORP-Pete Polley]

Halifaxboyzns -

Thanks very much. I will definitely have this checked out... as I indicated, HRM Staff have very clearly indicated to us several times that they do not have the authority under the variance provisions to change the number of parking spaces...

Some areas of HRM require parking spaces that are 8 feet x 16 feet...which is more realistic for today's smaller cars. The decrease from 9 feet to 8 feet may not sound like much, but when you need 1 space per unit, it makes a big difference. For us at Jazz, the volume of building above is relatively fixed by the View planes overhead and angle and side-yard setbacks... so if we had more (smaller) parking spaces, we could have a greater number of smaller, more affordable units.

Peter Polley
Polycorp

[alps]

I'm fine with the parking entrance being on Barrington...it's not a highway and shouldn't be treated like one. I'm sure once the interchange is redeveloped traffic will slow down quite a bit anyway.

the parking requirement does seem very outdated, how is Fenwick skirting it?

[Empire]

Halifaxboyzns -

Thanks very much. I will definitely have this checked out... as I indicated, HRM Staff have very clearly indicated to us several times that they do not have the authority under the variance provisions to change the number of parking spaces...

Some areas of HRM require parking spaces that are 8 feet x 16 feet...which is more realistic for today's smaller cars. The decrease from 9 feet to 8 feet may not sound like much, but when you need 1 space per unit, it makes a big difference. For us at Jazz, the volume of building above is relatively fixed by the View planes overhead and angle and side-yard setbacks... so if we had more (smaller) parking spaces, we could have a greater number of smaller, more affordable units.

Peter Polley
Polycorp

Do you have any renderings for Jazz?

[someone123]

There have been some developments in the HRM where the parking requirement was not applied. For example, I don't think there's parking included with the low income housing development at North and Agricola, and I'm guessing there are other developments in the North End that don't have the required number of spaces either.

I seem to recall that there was some kind of vote for these developments, either in full regional council or in a community council.

[POLYCORP-Pete Polley]

There have been some developments in the HRM where the parking requirement was not applied. For example, I don't think there's parking included with the low income housing development at North and Agricola, and I'm guessing there are other developments in the North End that don't have the required number of spaces either.

I seem to recall that there was some kind of vote for these developments, either in full regional council or in a community council.

The parking requirement varies by zone and area. Part of Gottingen Street has a unique zone that does not have a parking requirement. I believe that Fenwick Street is a development agreement application, which provides flexibility for the developer to propose parking alternatives. For us, with Jazz in the R-3 zone "as of right" development, we need one 9'x20' parking space per unit (except for the two waived for providing bike parking).... hope this helps...

Peter Polley
POLYCORP

[Dmajackson]

There have been some developments in the HRM where the parking requirement was not applied. For example, I don't think there's parking included with the low income housing development at North and Agricola, and I'm guessing there are other developments in the North End that don't have the required number of spaces either.

North and Agricola has a parking garage door on North Street.

[halifaxboyns]

The parking requirement varies by zone and area. Part of Gottingen Street has a unique zone that does not have a parking requirement. I believe that Fenwick Street is a development agreement application, which provides flexibility for the developer to propose parking alternatives. For us, with Jazz in the R-3 zone "as of right" development, we need one 9'x20' parking space per unit (except for the two waived for providing bike parking).... hope this helps...

Peter Polley
POLYCORP

One of the secondary planning areas along gottingen street (I believe it's the block where that new Condo building that's almost finished went up) gives some of the most flexible zoning rules to encourage redevelopment. The townhouses on Cornwallis was the start, then the condo tower and new the new apartment building next to the boxing arena.

My only caution about my previous comment about applying for a variance that can't be granted is whether the peninsula council would have the power to grant it. In the MGA, the appeal boards in Alberta have pretty sweeping powers, but I seem to recall a comment in the HRM charter that the community council (acting as the appeal body) has the same powers as the Development Officer. If that's the case, then I would read that to mean the same limitations too.

Have you considered doing a DA instead of going as of right? That might also be an option; unless time is a consideration.

[POLYCORP-Pete Polley]

One of the secondary planning areas along gottingen street (I believe it's the block where that new Condo building that's almost finished went up) gives some of the most flexible zoning rules to encourage redevelopment. The townhouses on Cornwallis was the start, then the condo tower and new the new apartment building next to the boxing arena.

My only caution about my previous comment about applying for a variance that can't be granted is whether the peninsula council would have the power to grant it. In the MGA, the appeal boards in Alberta have pretty sweeping powers, but I seem to recall a comment in the HRM charter that the community council (acting as the appeal body) has the same powers as the Development Officer. If that's the case, then I would read that to mean the same limitations too.

Have you considered doing a DA instead of going as of right? That might also be an option; unless time is a consideration.

Time is always a consideration, but if I had to make a choice between a year long development agreement application process and a two year long nasty court battle against HRM, I would obviously chose the DA application.

I asked that question...to try to find a solution to this MESS. HRM Staff have indicated that as property owners that we are "unable to apply" for a development agreement for our own land...they say that we would need the full, active support of the adjoining property owner... who is a multinational, multi-billion dollar operation which we have absolutely no control or influence over.

If you were me, what would your response be to an answer like that ? I'm interested in knowing...

Peter Polley
POLYCORP

[fenwick16]

Time is always a consideration, but if I had to make a choice between a year long development agreement application process and a two year long nasty court battle against HRM, I would obviously chose the DA application.

I asked that question...to try to find a solution to this MESS. HRM Staff have indicated that as property owners that we are "unable to apply" for a development agreement for our own land...they say that we would need the full, active support of the adjoining property owner... who is a multinational, multi-billion dollar operation which we have absolutely no control or influence over.

If you were me, what would your response be to an answer like that ? I'm interested in knowing...

Peter Polley
POLYCORP

Can you take legal action to get your money back from the company that sold the land, if the land was intended to be used as green space? I have some concerns, based on what you are stating, that even if you win the court case that the HRM council might not enter into a development agreement which would mean more legal battles.

I don't want to sound pessimistic, but as the saying goes, you can't fight city hall. The city has all the power when it comes to granting permits. In many ways these contracts between municipality and developers could be considered to be undue influence - the city seems to have almost all of the power. I certainly don't envy developers who have to deal with the HRM council.

[halifaxboyns]

Time is always a consideration, but if I had to make a choice between a year long development agreement application process and a two year long nasty court battle against HRM, I would obviously chose the DA application.

I asked that question...to try to find a solution to this MESS. HRM Staff have indicated that as property owners that we are "unable to apply" for a development agreement for our own land...they say that we would need the full, active support of the adjoining property owner... who is a multinational, multi-billion dollar operation which we have absolutely no control or influence over.

If you were me, what would your response be to an answer like that ? I'm interested in knowing...

Peter Polley
POLYCORP

I guess it would all depend on if there was policy within the MPS that would allow a development agreement - if there isn't; then that creates a problem.

But surely you could apply for an MPS amendment to create the policy that would thus allow a Development Agreement - that happens all the time in planning exercises out here in Alberta? I don't know how many times I had applications that amended policy and then rezoned (although we call it redesignation) the parcel - since policy wasn't there.

[Jonovision]

I guess it would all depend on if there was policy within the MPS that would allow a development agreement - if there isn't; then that creates a problem.

But surely you could apply for an MPS amendment to create the policy that would thus allow a Development Agreement - that happens all the time in planning exercises out here in Alberta? I don't know how many times I had applications that amended policy and then rezoned (although we call it redesignation) the parcel - since policy wasn't there.

This happens here as well. At least on the Dartmouth side it does. I do not know if there is a difference. But Kings Wharf went through that process and Seagate Residence (the project for the bottom of Pine street) is going through that process right now.

[POLYCORP-Pete Polley]

This happens here as well. At least on the Dartmouth side it does. I do not know if there is a difference. But Kings Wharf went through that process and Seagate Residence (the project for the bottom of Pine street) is going through that process right now.

Let's not forget that the land is zoned for R-3 "as-of-right" development... there should be no need to apply for a Development Agreement or MPS Amendment...even if that route was possible...

The fact that it's zoned R-3 and HRM refuses to respect that because they say they have an old agreement in their archives (which doesn't appear to have ever been signed) is THE issue ... we can't see any reference to "green space" in the UNSIGNED agreement that they gave us as part of the UARB evidence.. We went to them to see if we could solve the alleged problem with a Development Agreement application...but they say that's not possible (that's the short version...)... so a Development Agreement application is not feasible/possible...

Peter Polley
POLYCORP

[POLYCORP-Pete Polley]

Can you take legal action to get your money back from the company that sold the land, if the land was intended to be used as green space? I have some concerns, based on what you are stating, that even if you win the court case that the HRM council might not enter into a development agreement which would mean more legal battles.

I don't want to sound pessimistic, but as the saying goes, you can't fight city hall. The city has all the power when it comes to granting permits. In many ways these contracts between municipality and developers could be considered to be undue influence - the city seems to have almost all of the power. I certainly don't envy developers who have to deal with the HRM council.

1. There is no evidence that the land was intended to be used for green space... and even if an agreement to do so ever existed (Not being cute here... have yet to be provided with such an agreement), it would need to be registered at the Land Registry to bind a third party (i.e. us) - which it never was..

2. Developers challenge incorrect decisions by Halifax "City Hall" on an all-to-regular basis and win in court and at the URB. The City does not have all the power...they need to respect the law like everyone else does...which is what makes this sooooo frustrating.

Peter Polley
Polycorp

[fenwick16]

1. There is no evidence that the land was intended to be used for green space... and even if an agreement to do so ever existed (Not being cute here... have yet to be provided with such an agreement), it would need to be registered at the Land Registry to bind a third party (i.e. us) - which it never was..

2. Developers challenge incorrect decisions by Halifax "City Hall" on an all-to-regular basis and win in court and at the URB. The City does not have all the power...they need to respect the law like everyone else does...which is what makes this sooooo frustrating.

Peter Polley
Polycorp

Good luck. I think that the city really needs to show more appreciation to developers who keep investing in the municipality and certainly they need to follow the law like everyone else.

[halifaxboyns]

Good luck. I think that the city really needs to show more appreciation to developers who keep investing in the municipality and certainly they need to follow the law like everyone else.

The challenge with planning policies (which I've learned over the years) is that it's a matter of interepretation. So a policy, which I may interpret one way; if someone replaces me, may interpret in a completely different way (if the policy is not very specific).

A good example in HRM terms is the whole rampart height issue; it's never really been defined - so what planning staff may see as the rampart height, would be different than a developer or the heritage trust.

I for one, like clear policy - very little room for wiggle, but it's often clear.

It's sounding like if there was an agreement and it was properly registered (assumption) it may be an error on the part of the registry. Would be interesting to see if it proof could be provided that it was registered and then the registry screwed up - would be a first. Not that I want difficulty for this project; but I've never seen a registry screw up - they are usually quite on the ball.

I think most planning departments do show appreciation - but have to becareful about how to do that. Remember, planners have to be impartial when making decisions (there is actually professional ethics about that). But you can still be professional and courteous and refuse an application. It's a matter of clear communication and just being polite about it. When I was a DO, I refused lots of stuff for various reasons - but I never was rude to people about it. I'd always explain why I made the decision I did and tell them their options. If the appeal changed my decision, it wasn't an us versus them decision - it was a matter of making sure that I followed a clear process of decision making. Although I do admit if someone was rude and cranky and I refused something and they didn't get it; once in a while I'd have a little snicker. :)

[someone123]

The viewplane bylaws are not ambiguous. They're essentially mathematically defined based on a series of fixed viewpoints. The problem is that some people either misunderstand the bylaws or purposefully misrepresent them.

There is vague language in the MPS about how buildings should be in keeping with others around them, and this was often a basis for legal appeals. Sometimes these appeals would be presented to the public as appeals based on violations of the viewplanes, which is incorrect.

[Empire]

A good example in HRM terms is the whole rampart height issue; it's never really been defined - so what planning staff may see as the rampart height, would be different than a developer or the heritage trust.

I for one, like clear policy - very little room for wiggle, but it's often clear.



I agree that this is very open ended. The basic viewplanes are defined in the vertical and horizontal plane but no one seems to know where the rampart viewplane is defined from. To say a building shouldn't be visible form inside the citadel is leaving a gap of about 5+ storeys depending on where you define the viewplane from. Is it from the centre of parade sq.? Is it 5ft above the ground? This angle could mean a big difference for a building in the Purdy's Wharf area.

[halifaxboyns]

The viewplane bylaws are not ambiguous. They're essentially mathematically defined based on a series of fixed viewpoints. The problem is that some people either misunderstand the bylaws or purposefully misrepresent them.

There is vague language in the MPS about how buildings should be in keeping with others around them, and this was often a basis for legal appeals. Sometimes these appeals would be presented to the public as appeals based on violations of the viewplanes, which is incorrect.

I wasn't talking about the viewplane geodedtic heights themselves, I realize the planes and elevation heights as they go down from specified points are specific. But I seem to recall reading (either on this board or in the media) Andy Fillmore saying that the actual maximum elevation of the ramparts wasn't specifically defined. So there was confusion what that really was: whether it was the geodedtic elevation above sea level of the highest point of the rampart (which would benefit developers getting a taller building) or the elevation of the ground of the parade square within the fort (which would benefit anti-development groups by reducing building heights). That's what I was trying to get at, sorry if I wasn't clear. :)

But if this is the case, that this concept isn't clearly defined - then yes, it should be defined so that there is no confusion. In my opinion, if they define it as the height of the parade square, I'd be quite disappointed - why does it matter you can't see a building from inside the fort?

I've always believed that with such major issues like this; you really have to go back to the original report that got the legislation in place to understand intent. I'd hope that somewhere in the vaults of HRM is an original copy of the report to Halifax city council - that's where you will get the interpretations. I've been working on some stuff in calgary and been sifting through old reports and it's amazing how the original intent of things just gets lost over the years.

[someone123]

I wasn't talking about the viewplane geodedtic heights themselves, I realize the planes and elevation heights as they go down from specified points are specific. But I seem to recall reading (either on this board or in the media) Andy Fillmore saying that the actual maximum elevation of the ramparts wasn't specifically defined. So there was confusion what that really was: whether it was the geodedtic elevation above sea level of the highest point of the rampart (which would benefit developers getting a taller building) or the elevation of the ground of the parade square within the fort (which would benefit anti-development groups by reducing building heights). That's what I was trying to get at, sorry if I wasn't clear. :)

That sounds odd.. usually when it comes to the parade square the complaint has been that buildings would be visible from inside, not that they would happen to exceed the height of the ground inside. Using the height of the ground inside seems totally worthless as it is not directly connected to anything meaningful.

83 m is one number I have heard tossed around before. I believe the top of the Citadel is 70 m above sea level.

[halifaxboyns]

That sounds odd.. usually when it comes to the parade square the complaint has been that buildings would be visible from inside, not that they would happen to exceed the height of the ground inside. Using the height of the ground inside seems totally worthless as it is not directly connected to anything meaningful.

83 m is one number I have heard tossed around before. I believe the top of the Citadel is 70 m above sea level.

I agree and this is where the issue lies - which one is it? I've asked the question of some staff I know and have never gotten a certain answer. I even went through HbD and I didn't see any specifics, just some casual reference to the rampart height.

So if 83m is the rampart height, but 70m is the height of the parade level - it becomes an interpretive issue (unless it's specifically spelled out). When you look at it, 13m is a lot more height (that's what? 3 or 4 floors?).

[fenwick16]

If based strictly on the heights of the tallest buildings in the downtown core then Purdy's Wharf II and 1801 Hollis are 88 m and 87 m respectively (source: http://www.emporis.com/en/wm/ci/bu/?id=101006 ). I would expect that International Place at 22 (office floors) would be about the same.

[someone123]

If based strictly on the heights of the tallest buildings in the downtown core then Purdy's Wharf II and 1801 Hollis are 88 m and 87 m respectively (source: http://www.emporis.com/en/wm/ci/bu/?id=101006 ). I would expect that International Place at 22 (office floors) would be about the same.

International Place was not approved recently - the development agreement is from back in 1978 or something similar.

[fenwick16]

International Place was not approved recently - the development agreement is from back in 1978 or something similar.

Has the ramparts maximum definition changed since Purdy's Wharf and 1801 Hollis were built? I thought this height limit was one that had existed since the 1970's.

[someone123]

I'm not sure of the history.. I thought the viewplanes themselves were a creature of the 70s, but the MPS dates to the 1980s.

[halifaxboyns]

I'm not sure of the history.. I thought the viewplanes themselves were a creature of the 70s, but the MPS dates to the 1980s.

I think the MPS was after the viewplanes and so encorporated them into the MPS.

88m would make some sense, but then how did Fenwick get approved so much taller? Wouldn't the rampart heights apply to it? So then wouldn't the rampart height be 98m (the height of Fenwick)?

[someone123]

Fenwick was started in 1969 or so.

[halifaxboyns]

Fenwick was started in 1969 or so.

Ahhhh that explains it - legally non-conforming then. It will be tough with the current viewplane rules and rampart heights then for the redevelopment.

[fenwick16]

I think the MPS was after the viewplanes and so encorporated them into the MPS.

88m would make some sense, but then how did Fenwick get approved so much taller? Wouldn't the rampart heights apply to it? So then wouldn't the rampart height be 98m (the height of Fenwick)?

This raises a question in my mind - can the top of Fenwick Tower be seen within the Citadel? Maybe it was because of Fenwick Tower that this ramparts maximum height limit was introduced.

It sounds like the next HRM tallest will have to be in Dartmouth (possible the King's Wharf iconic tower).

[fenwick16]

Ahhhh that explains it - legally non-conforming then. It will be tough with the current viewplane rules and rampart heights then for the redevelopment.
I haven't heard any councillor state that the ramparts limit would affect the Fenwick redevelopment - right now the biggest issue is density per acre. Somebody correct me if I am wrong, but I think the density maximum is 250 people per acre and they will be at almost double that when it is redeveloped.

PS: We have gotten way of the topic - the Jazz project.

[Jonovision]

I have never heard of them using the height of the actual parade square. It's suppose to be a plain that extends out from eye level up over the ramparts from a certain point within the parade square I believe. The purpose of course being so that when you are inside the ramparts in the parade square all you see is sky thus helping to recreate the history of the site. I have not been inside the citadel for probably a decade, but I can't remember seeing any buildings from inside. Since Fenwick tower is so far away I think it still has quite a nice cushion above it before it hits the eye from inside the rampart.

[Wishblade]

I have never heard of them using the height of the actual parade square. It's suppose to be a plain that extends out from eye level up over the ramparts from a certain point within the parade square I believe. The purpose of course being so that when you are inside the ramparts in the parade square all you see is sky thus helping to recreate the history of the site. I have not been inside the citadel for probably a decade, but I can't remember seeing any buildings from inside. Since Fenwick tower is so far away I think it still has quite a nice cushion above it before it hits the eye from inside the rampart.

I've personally been able to see Cogswell Tower, Fenwick, and Maritime Centre from within the ramparts depending where you stand. And as for the spot where the ramparts bylaws are drawn from, I for some reason thought that it was from the centre of the parade square.

[Empire]

Land Use Bylaw
http://webcache.googleusercontent.com/search?q=cache:52YJhCd3JhIJ:www.halifax.ca/planning/documents/HalifaxPeninsula_LUB.pdf+section+26b+halifax+land+use+bylaw&cd=2&hl=en&ct=clnk&gl=ca

CITADEL RAMPARTS
26B
In addition to all other provisions of this by-law, no development permit shall be
issued for any development within Schedule A that is greater than 90 ft. in height,
unless such development will not be visible above the topmost line of the earthworks
of the Citadel ramparts from an eye level 5.5 ft. above ground level at any of the
specified viewing positions in the Parade Square of the Citadel. Elevations and
coordinate values for the viewing positions in the Parade Square of the Citadel and
elevations to the topmost line of the earthworks on the Citadel ramparts are shown on
ZM-17 (Height Precinct Map).

[halifaxboyns]

Land Use Bylaw
http://webcache.googleusercontent.com/search?q=cache:52YJhCd3JhIJ:www.halifax.ca/planning/documents/HalifaxPeninsula_LUB.pdf+section+26b+halifax+land+use+bylaw&cd=2&hl=en&ct=clnk&gl=ca

CITADEL RAMPARTS
26B
In addition to all other provisions of this by-law, no development permit shall be
issued for any development within Schedule A that is greater than 90 ft. in height,
unless such development will not be visible above the topmost line of the earthworks
of the Citadel ramparts from an eye level 5.5 ft. above ground level at any of the
specified viewing positions in the Parade Square of the Citadel. Elevations and
coordinate values for the viewing positions in the Parade Square of the Citadel and
elevations to the topmost line of the earthworks on the Citadel ramparts are shown on
ZM-17 (Height Precinct Map).

...and now for that we have that sorted, back to the topic at hand! :)

[fenwick16]

According to the allnovascotia.com, the Polycorp Jazz NS Sppreme court case will be heard in June. This should be interesting, the facts certainly sound like they are on Polycorp's side.

[POLYCORP-Pete Polley]

Do you have any renderings for Jazz?

Nothing ready to show to the public yet... but the plan is to use the same sort of colours and materials that we used at the adjacent Spice Condos building... will give people lots more material to talk about... but like someone said before "it's better than bland brick and beige"...

Peter Polley
Polycorp

[POLYCORP-Pete Polley]

According to the allnovascotia.com, the Polycorp Jazz NS Sppreme court case will be heard in June. This should be interesting, the facts certainly sound like they are on Polycorp's side.

Facts, records, registry of deeds, reality, global warming, unsigned old agreements with no specific terms - everything and everyone in town is on Polycorp's side except HRM staff on this problem.

I actually had a call from someone the other day that offered to stand on the sidewalk with a sandwich board-type sign waiving at traffic to raise awareness of the mokery that is being made of proper planning and process by this whole mess. I told them "thanks for the offer - and we may take you up on it later, but for the time-being, I think that we'll pass on that..."

Did anyone hear "Gerald" on CBC Radio last week ? Gerald said he has lived in the immediate neighbourhood for 50+ years. At first, Gerald sounded like a gruff old man, but he spoke very well... he said " I'm an uneducated, unsophisticated man... but can you tell me why they [HRM] would want to prevent those guys from building a nice new building that would produce tax dollars to the city instead of having a vacant lot in the neighbourhood where the undesirable criminal element can hang out ? "

His words, not mine...

Peter Polley
Polycorp

[sdm]

Condo site slated for recreation since 1972, HRM documents show
Developer, city at odds over downtown property
By CHRIS LAMBIE Business Editor
Tue. May 11 - 8:19 AM
A Barrington Street property where devel­oper Peter Polley wants to build condomini­ums has been earmarked for recreation since 1972, according to court documents filed by Halifax Regional Municipality.

Polley’s proposed $15-million, 63-unit condominium project on Barrington Street has been stalled for months as he fights with the city over whether the empty lot is sup­posed to be a playground for the adjacent Ocean Towers on Brunswick Street.

“There has never been another, or later, approved usage of the property, and it re­mains restricted from development under its current designation," state new documents filed in the Supreme Court of Nova Scotia.

Polley had taken his case to the Nova Scotia Utility and Review Board, but then his company, Polycorp Properties Inc. , and the city decided their battle was better suited to the courtroom.

The plan for the two buildings, now known as Ocean Towers, was filed with the registry of deeds on July 4, 1972, state court documents.

It identifies the land in question as “an open-space recreational area," documents filed by the city state.

The plan was approved by the former Halifax city council, according to court docu­ments. “There was no legislative provision requiring Halifax City to register the said agreement, or necessitating a formal devel­opment agreement." Polley paid $1.275 million for the lot last April. He has said he performed several checks to make sure it was zoned for high­density development before making the purchase.

But court documents indicate the city “has no knowledge of an inquiry with respect to special development restrictions."

After Polley made the purchase, a devel­opment officer with the city ruled the pro­ject, dubbed Jazz Condominiums, could not go ahead because the land is supposed to be a playground.

An affidavit sworn by Paul Dunphy, the city’s director of community development, said the property “was identified as early as 1945 as part of an area in need of urban renewal."

The former City of Halifax and the Canada Mortgage and Housing Corporation entered into an agreement with Barrington Developments Ltd. in 1970 to construct a housing project on Barrington Street, Dun­phy says in his affidavit. “It is expected that any proposals received will provide an ade­quate amount of recreation space," accord­ing to an excerpt from a Nov. 27, 1969, city council meeting contained in Dunphy’s affidavit.

The agreement with Barrington Devel­opments “does not appear to have been registered at the Registry (of Deeds), but ‘was simply placed on the file,’ " states Dun­phy’s affidavit.

There was no requirement the agreement be registered with the land titles office, Dun­phy says.

But he also mentions that the city has applied to the registrar general of land titles “for a correction in this parcel registration, on the basis that the statutory declarations were inadequate."

Polley bought the empty lot from DDP-Brunswick Ltd. That company is related to Mississauga, Ont.-based TransGlobe Prop­erty Management Ser vices Ltd. , which owns the adjacent Ocean Towers.

But TransGlobe didn’t build the towers and they’ve been owned by several entities since they went up 40 years ago.

Polycorp built the nearby 85-unit Spice Condominiums and the Mont Blanc, which consists of almost 200 apartments and town­houses on Mont Blanc Terrace. It is also working on a 76-house development called Ravenscraig in Fleming Heights.

(clambie@herald.ca)

[fenwick16]

This is the HRM side of the story and then there is Polycorp's side of the story. It will have to be decided in court which side will be accepted.

[POLYCORP-Pete Polley]

This is the HRM side of the story and then there is Polycorp's side of the story. It will have to be decided in court which side will be accepted.

We remain confident that the Nova Scotia Supreme Court will interpret the facts to support POLYCORP's position. We haven't received a copy of the HRM defence yet... my hat is off to the Herald for being on top of their game...apparently it was filed late yesterday afternoon.

"Keeping stuff in a file" is not a prudent way for anybody - whether they be an individual, business or government - to operate. That is why we (and I believe most modern societies since the 1800's) have a central land registry. While, in 1971-72 there was no mandatory requirement for a municipality to register a land-use agreement (there is now), that does not mean that unregistered documents are enforceable.

To clarify the crucial distinction here. ... I will use the example of a mortgage document because it is a more common example of an important land-related document that is registered to ensure that it is in the public realm so that the rest of the world can know about it.

This is like the "Bank of Halifax" lending Joe some money to buy a house...and keeping the mortgage document in the Bank's files in their central archives. There is actually not a specific requirement on the Bank to register their mortgage as part of the money-lending process ... but the law of the land is very, very clear on this - if Peter buys Joe's house...and the bank has the signed mortgage agreement in "their files" and not at the Registry of Deeds... then it becomes the Bank's problem... not Peter's ... no court is going to uphold the Bank's claim against Peter ...the court will say "you snooze, you lose" (this isn't the technical legal term, but you get the point....

Oh - did I mention - THE BANK CAN'T FIND A COPY OF THE SIGNED LOAN AGREEMENT... they have a copy from 40 years ago that we don't know if Joe ever signed...

Oh yeah - one more thing - Peter asked the Bank before he bought the house from Joe if there was a mortgage on the house...and the Bank gave a letter specifically stating that there was no mortgage...that they had "no records on file"... ...

I agree... the courts will decide how this will be settled. And it's not going to be pretty...

Do we have any lawyers or law students that read Skyscraperpage.com that would like to add any commentary ???

Peter Polley
POLYCORP

[halifaxboyns]

This is an interesting turn of events...or at least an interesting interpretation issue.

My guess would be that it should've been registered.
Keeping something on file only works in an electronic age, when a property is accessed and something pops up on screen (for example). Even then - because that information is usually contained with the city; it doesn't provide a full picture for a property owner.

Intresting though...

[someone123]

My guess would be that it should've been registered.
Keeping something on file only works in an electronic age, when a property is accessed and something pops up on screen (for example). Even then - because that information is usually contained with the city; it doesn't provide a full picture for a property owner.

Part of what's sad here is that it's 2010 and there's no real reason for any of this. HRM seems to be sitting at about 1995 in terms of the way it handles documents and the information it shares online.

I'm sure they have a lot of old documents but they also have a budget of hundreds of millions of dollars. Instead of frittering it away on cat bylaws they could use it to properly digitize their information. They could also stand to let go of about 16 councillors - there would then be less in the minutes and they could upload them in a more timely fashion.

I also get the sense that the HRM does not pick its battles well. We've got another thread on here about how they dragged a church to court to prevent them from building an old folks' home...

[POLYCORP-Pete Polley]

Part of what's sad here is that it's 2010 and there's no real reason for any of this. HRM seems to be sitting at about 1995 in terms of the way it handles documents and the information it shares online.

I'm sure they have a lot of old documents but they also have a budget of hundreds of millions of dollars. Instead of frittering it away on cat bylaws they could use it to properly digitize their information. They could also stand to let go of about 16 councillors - there would then be less in the minutes and they could upload them in a more timely fashion.

I also get the sense that the HRM does not pick its battles well. We've got another thread on here about how they dragged a church to court to prevent them from building an old folks' home...

I received the court documents for the Tower Road church saga (just to be nosy) in which HRM refused to issue a Development Permit (sound familiar ???) because of a "difference of interpretation"... I haven't read them yet (probably about 100 pages in all), but I have heard from several people that it is less than flattering on HRM...my understainding is that the local legal community is howling at it...

FYI - HRM has farmed their legal work on Jazz Condos out to an outside law firm as of last week...up until now, they have been dealing with this internally with their army of staff lawyers... now they are spending more tax payer dollars on outside lawyers...how does that make you feel as a tax payer and resident of HRM ???? Would you rather they spend the $$$ money on this or on something useful like fixing some potholes or an extra bus run on your transit route ????

I will check out the thread on the "HRM Tower Road Church fiasco" to see what the rest of the world thinks about it...

Peter Polley
POLYCORP

[someone123]

Or they could buy new equipment for the playground by St. Pat's-Alexander, which is, ummm... right across the street from Ocean Towers...

[halifaxboyns]

I think the idea of requiring landscaping or a park land dedication for multi-residential development is an old one. Mainly because typically the building occupies as much of the site as possible - so then the question becomes; where do people who live there recreate beyond their balconies (assuming any were built).

In many Alberta Municipalities typically multi-residential even as small as 20 to 30 units, may require dedication of a park/playground area. In a City I used to work with required that for multi residential development over 100 units (or it might be 50) dedicate a park space and then also provide play equipment and landscaping/benches. It's owned by the property owner and must be maintained; but it's for the residents. When I lived in a building that had it; I never used it. I just went for a walk; because mainly as a single person - I didn't have an interest being around screaming kids lol. I rather enjoyed the large park a few blocks away to sit and read and have a coffee lol.

Now going into the broader context issue; if this was an application in the Calgary context (I'm talking about the existing large towers, no Jazz) - i'd be inclined (if asked) to probably relax any requirement for such dedication if there was an existing park across the way; on condition that the money that would've been used to build the park on site - be spent to build equipment on city land.

The problem with zoning is that you can't really have flexibility to do something like that - unless through a Development Agreement.

[POLYCORP-Pete Polley]

Just to give everyone an update...

We appealed the HRM refusal to issue a Development Permit to the NS Utility and Review Board - as HRM indicated was our right in their February 26 refusal letter.

Got dates for UARB Hearing.

HRM argued to the UARB that the UARB did not have juristiction to hear the matter.

We filed in Supreme Court. HRM staff was not "available" in May due to "vacation schedules". Agreed to a date in June (16th?).

HRM farms out legal work to an outside legal firm. The new lawyer is not available for the mid-June dates... we need to get new dates to accomodate their schedule....in July.

Now, HRM wants to have the court date cancelled...saying that the matter is so complex that it needs a full trial...which would take 1-2 years to get scheduled... we have court date of June 29th to argue over whether HRM has the right to have the July date cancelled. Fortunately, the onus is on them to make a compeeling case of why it can't proceed.

Does it sound like anyone wants to have this resolved ? or do they just want to bury it ??? Does this sound like a municipality that wants to encourage green, sustainable development ??? or a bureaucratic quagmire stuck in the Dark Ages ? No wonder the suburbs are growing at the expense of the downtown...

Peter Polley
POLYCORP

[fenwick16]

I am afraid this is the sort of thing that has been happening to one development after the other, over the past 10 - 20 years. Can you sue the city?

[DigitalNinja]

My tax dollars better not be going towards this.
Shouldn't it have been when you bought the land all documents were brought forward by the real estate agent, or what ever you used? It should have been their responsibility...
Plus the city is at fault for keeping the documents buried away, to bad you can't sell the land for what you bought it for and build some place else.

[fenwick16]

The problem is that the city does this sort of thing to one developer after another. If the city is right then they would be willing to defend their position in court. Eventually, the job that they drive out of town might be your own, or even worse it could be you that they are playing legal games against.

I really feel like this is the city's solution to growth - put a stop to it so they don't have to deal with it. Is this the type of city that you want to live in?

[halifaxboyns]

Has there been any update on this?

[POLYCORP-Pete Polley]

This has been dragging out for months now. HRM is doing anything and everything that they can to prevent us from moving forward with the project. At this point, the project has been delayed by almost a year.

Our lawyer has cautioned us to use much more restraint in our commentary... I could be much, much, much more colourful with commentary on the process and tactics involved... but am not supposed to ... I may write a book about this when it is all finished... a tell-all...may even win a Pulitzer prize (do we have them in Canada ???) ...

We have had successive court dates delayed and rescheduled as a result of actions (or inactions) by others. We just lost the dates for a hearing in September...that was scheduled in about June... now it is scheduled for January... but I'm not hopeful at this point on when we will get to the end. We're still confident that we will prevail, but at what cost to ourselves and the tax payers of this City and Province ?????

Seems ridiculous when everyone is talking about a lack of new development downtown.

Peter Polley
POLYCORP

[Dmajackson]

I hope you do win. :tup:

I've been dealing with the municipality for months (mainly the traffic department though) and the sheer stubborness of some of the people is dumbfounding. There is some good workers of course but some should just be fired based on what I've heard from other people.

[worldlyhaligonian]

This has been dragging out for months now. HRM is doing anything and everything that they can to prevent us from moving forward with the project. At this point, the project has been delayed by almost a year.

Our lawyer has cautioned us to use much more restraint in our commentary... I could be much, much, much more colourful with commentary on the process and tactics involved... but am not supposed to ... I may write a book about this when it is all finished... a tell-all...may even win a Pulitzer prize (do we have them in Canada ???) ...

We have had successive court dates delayed and rescheduled as a result of actions (or inactions) by others. We just lost the dates for a hearing in September...that was scheduled in about June... now it is scheduled for January... but I'm not hopeful at this point on when we will get to the end. We're still confident that we will prevail, but at what cost to ourselves and the tax payers of this City and Province ?????

Seems ridiculous when everyone is talking about a lack of new development downtown.

Peter Polley
POLYCORP

I'm sorry to hear about this... I'm beginning to think I might not come back to Halifax when I hear about bullshit like this.

Can you criminally charge somebody in this matter? It seems to me as though some economic infringement is going on here, maybe equivalent to theft of your time/resources?

Or maybe you can you sue them for not meeting deadlines or not doing their job? Inaction is not acceptable, I don't care where you are or what your job is. The folks that are doing this should be fired...

Can you go over these people's heads as well? It always helps to have pressure from people of real importance.

[Dmajackson]

Can you go over these people's heads as well? It always helps to have pressure from people of real importance.

I don't know if this applies to developments but according to quite a few contacts I've made over the last month if you are experiencing problems with the municipal government then you should approach the provincial equivalent. Whomever that is has the authority to override municipal decisions.

I know for the cycling problems I've been told to reach MLA Bill Estrabrooks to complain about certain municipal worker's conduct since he can override it if he feels it needs fixing.

Also apparently HRM has been f***ing up enough lately that Darrell Dexter has created a new committee whos purpose is to fix the problems the municipality's creating.

[halifaxboyns]

The Province has the power to over-ride to a certain extent; but I think now that they've given HRM it's own charter; they may have limited their powers. I'm not sure; I've never actually gone through it 100 percent.

I don't really understand the big deal with allowing the parcel to be developed - even if it was tied to the apartments for a playground; it's much like any subdivision - you can either give land dedication or give money. Usually when the 10% the city can take for parks is not worth the effort; they take cash?

So why not just offer them a cash trade in exchange that the site has no 'green space'? That would seem reasonable to me.

[Dmajackson]

Church: Condo site unsafe
‘Piles of needles and condoms’ litter vacant property
By BILL POWER Business Reporter
Thu, Oct 7 - 4:54 AM

A BARRINGTON STREET church group called Wednesday for increased security and the immediate cleanup of a proposed condominium site that has become a gathering place for drug addicts and prostitutes.

"The piles of used needles and condoms that can be found there after a weekend tell the story," Penny Doherty, of the Saint Patrick’s Church Restoration Society, said in an interview.

The church is taking some steps to ensure the adjacent property — the site of a proposed $15-million, 63-unit condominium — is made more difficult to reach from the Barrington Street side, and it wants the property owner and Halifax Regional Municipality to contribute to the effort to oust some "newer residents" who gather at the location at night.

"There are about 15 to 20 people who hang around there at night. It is overgrown and provides hiding places for people who sell drugs and also places for some to engage in prostitution.

"The evidence is all too easy to find in the morning," said Doherty.

She said Saint Patrick’s does not want to get involved in the controversy surrounding the proposed Jazz Condominiums, which is currently stalled before the courts in a zoning dispute involving the city and developer Peter Polley and his Polycorp Group of Companies.

The church wants Polley, the property’s current owner, to add some security features to close off nighttime access to the site via Cornwallis Street and his adjacent 85-unit Spice Condominiums.

Doherty said the church has also met with Halifax Regional Police and is appealing to the city to step in and participate in the effort to rid the neglected property of people who "gather after dark to do drugs and to sell drugs and to engage in prostitution."

The Barrington Street property Polley wants to develop fell into a judicial quagmire after the city’s development control office stalled the project on the basis it had been earmarked for a playground back in 1972, as part of the Ocean Towers development.

Polley wasn’t returning calls Wednesday but said in a March interview that he purchased the empty lot for $1.275 million last April from DDP-Brunswick Ltd. That company is related to Mississauga, Ont.-based TransGlobe Property Management Services Ltd., which owns the adjacent Ocean Towers.

But TransGlobe didn’t build the towers and they’ve been owned by several entities since they went up 40 years ago.

"For all I know, they didn’t know," Polley said at the time of the playground stipulation.

"We don’t want to sue anybody. We just want to be able to build our building," said the developer after the city quashed his proposal.

( bpower@herald.ca )

[FuzzyWuz]

[I]Church: Condo site unsafe
‘Piles of needles and condoms’ litter vacant property

Nono. You see, they see the word "Condo" and figure that it's a good place to dump CONDOMS. They're just trying to follow the rules as they see them.

:rolleyes:

[Jstaleness]

This has been dragging out for months now. HRM is doing anything and everything that they can to prevent us from moving forward with the project. At this point, the project has been delayed by almost a year.

Our lawyer has cautioned us to use much more restraint in our commentary... I could be much, much, much more colourful with commentary on the process and tactics involved... but am not supposed to ... I may write a book about this when it is all finished... a tell-all...may even win a Pulitzer prize (do we have them in Canada ???) ...

We have had successive court dates delayed and rescheduled as a result of actions (or inactions) by others. We just lost the dates for a hearing in September...that was scheduled in about June... now it is scheduled for January... but I'm not hopeful at this point on when we will get to the end. We're still confident that we will prevail, but at what cost to ourselves and the tax payers of this City and Province ?????

Seems ridiculous when everyone is talking about a lack of new development downtown.

Peter Polley
POLYCORP

Hi Peter,

I hope you still check in with us at this forum. Is there any progress on this project or a new start time?

Thanks

[DigitalNinja]

Any updates on this?

[hoser111]

I guess there won't be anything going up here any time soon!

Polycorp sues over condo refusal
Company: HRM ‘acted unfairly’ when it said development couldn’t proceed
By CHRIS LAMBIE Business Editor
Tue, Mar 1 - 4:54 AM

Developer Peter Polley’s company is suing Halifax Regional Municipality for damages in a case surrounding the use of a vacant city lot. (Eric Wynne / Staff)




Polycorp Properties Inc. is suing Halifax Regional Municipality for damages in a case where the city has refused to allow developer Peter Polley to build condos on land it says is set aside for recreational use.

The suit differs from a case Polley launched last year in that his company is now asking a judge for compensation for not being allowed to build the $15-million, 63-unit Jazz Condominiums project on Barrington Street.

"As a result of the HRM’s negligent misrepresentation, Polycorp has suffered loss and damages," says the statement of claim made public Monday.

Polycorp wants special damages, "being the purchase price of the property and other costs associated with the purchase of the property."

The company paid $1.275 million for the lot in April 2009.

Polycorp is also looking for a judge to award it "carrying costs in respect to the property," as well as "special damages, being the economic loss (including, but not limited to, business interruption loss) suffered by Polycorp as a result of having invested in the property, which it has subsequently been prevented from developing."

The company is also suing for "costs related to the design and marketing of the proposed development, and of the permit application."

All of the project costs, including the purchase price for the land, don’t add up to $2 million yet, Polley, the company’s president, said Monday in an interview.

Pollycorp and the city are slated to be in court in mid-May, when the developer will argue his company is entitled to a development permit.

The new lawsuit isn’t aimed at putting pressure on the city, Polley said.

"At this point I have no hope that the city would capitulate," he said. "That’s not the intent of this. This lawsuit isn’t being filed to try to intimidate or coerce the city because I’ve pretty much given up hope of settling this."

In another lawsuit over the same matter, the city says the property has been earmarked for recreation since 1972.

"There has never been another, or later, approved usage of the property, and it remains restricted from development under its current designation," state documents filed by the city in Nova Scotia Supreme Court.

In the new legal battle, Polycorp argues the city "has acted unfairly, in bad faith, and in abuse of its statutory power in its handling of the permit application and Polycorp’s claim to development rights in respect of the property. This unfairness, bad faith and abuse of power has caused Polycorp significant and undue financial hardship."

Polycorp says it began making inquiries in 2008 about the availability of a parcel of land between Barrington and Brunswick streets, adjacent to the Ocean Towers development.

"As part of its inquiry process, Polycorp contacted HRM to inquire as to the zoning of the property and whether any special development restrictions existed with respect to the property," says the new suit.

"On or about Feb. 16, 2009, Polycorp received a confirmation letter from HRM that the property was zoned R-3 multiple dwelling zone," it says.

The company says it relied on "representations made by HRM regarding zoning and permitted developments" as well as a review of documents at the Land Registration Office, "which confirmed that no development restrictions had been recorded against the property" when it closed the deal to purchase the land.

But when it applied to the city for a development permit in November 2009, it heard back from the city in December of that year "that HRM was investigating whether the permit application was affected by any old development restrictions in relation to the Ocean Towers development."

On Feb. 26, 2010, Polycorp heard back from a city development officer "that the permit application was being refused, indicating that the property was previously dedicated as landscaped open space for the Barrington Street Housing Project," says the new suit.

The company says "but for HRM’s misrepresentations, Polycorp would not have purchased the property," or it would have asked a judge to rule on whether it could be developed, before inking the deal.

Polycorp bought the empty lot from DDP-Brunswick Ltd. That company is related to Mississauga, Ont.-based TransGlobe Property Management Services Ltd., which owns the adjacent Ocean Towers. But TransGlobe didn’t build the towers and they have been owned by several entities since they went up 40 years ago.

"The matter has become very complex because there are now six parties involved in the litigation," Polley said Monday.

Those include TransGlobe, Causeway Bay Inc., an investment group out of southern Ontario that sold the property to TransGlobe, and the province, which operates the registry of deeds, Polley said.

( clambie@herald.ca)

[Jonovision]

Company: HRM ‘acted unfairly’ when it said development couldn’t proceed


By CHRIS LAMBIE

Business Editor

Polycorp Properties Inc. is suing Halifax Regional Munici­pality for damages in a case where the city has refused to allow developer Peter Polley to build condos on land it says is set aside for recreational use.

The suit differs from a case Polley launched last year in that his company is now asking a judge for compensation for not being allowed to build the $15-million, 63-unit Jazz Condo­miniums project on Barrington Street.

“As a result of the HRM’s negli­gent misrepresentation, Polycorp has suffered loss and damages," says the statement of claim made public Monday.

Polycorp wants special damag­es, “being the purchase price of the property and other costs associated with the purchase of the property."

The company paid $1.275 million for the lot in April 2009.

Polycorp is also looking for a judge to award it “carrying costs in respect to the property," as well as “special damages, being the economic loss (including, but not limited to, business interrup­tion loss) suffered by Polycorp as a result of having invested in the property, which it has subse­quently been prevented from developing."

The company is also suing for “costs related to the design and marketing of the proposed devel­opment, and of the permit appli­cation."

All of the project costs, in­cluding the purchase price for the land, don’t add up to $2 million yet, Polley, the company’s presi­dent, said Monday in an inter­view.

Pollycorp and the city are slat­ed to be in court in mid-May, when the developer will argue his company is entitled to a de­velopment permit.

The new lawsuit isn’t aimed at putting pressure on the city, Polley said.

“At this point I have no hope that the city would capitulate," he said. “That’s not the intent of this. This lawsuit isn’t being filed to try to intimidate or coerce the city because I’ve pretty much given up hope of settling this."

In another lawsuit over the same matter, the city says the property has been earmarked for recreation since 1972.

“There has never been another, or later, approved usage of the property, and it remains restrict­ed from development under its current designation," state docu­ments filed by the city in Nova Scotia Supreme Court.

In the new legal battle, Poly­corp argues the city “has acted unfairly, in bad faith, and in abuse of its statutory power in its handling of the permit applica­tion and Polycorp’s claim to development rights in respect of the property. This unfairness, bad faith and abuse of power has caused Polycorp significant and undue financial hardship."

Polycorp says it began making inquiries in 2008 about the avail­ability of a parcel of land be­tween Barrington and Brunswick streets, adjacent to the Ocean Towers development.

“As part of its inquiry process, Polycorp contacted HRM to in­quire as to the zoning of the property and whether any special development restrictions existed with respect to the property," says the new suit.

“On or about Feb. 16, 2009, Polycorp received a confirmation letter from HRM that the property was zoned R-3 multiple dwelling zone," it says.

The company says it relied on “representations made by HRM regarding zoning and permitted developments" as well as a re­view of documents at the Land Registration Office, “which con­firmed that no development restrictions had been recorded against the property" when it closed the deal to purchase the land.

But when it applied to the city for a development permit in November 2009, it heard back from the city in December of that year “that HRM was investigating whether the permit application was affected by any old devel­opment restrictions in relation to the Ocean Towers development."

On Feb. 26, 2010, Polycorp heard back from a city devel­opment officer “that the permit application was being refused, indicating that the property was previously dedicated as land­scaped open space for the Bar­rington Street Housing Project," says the new suit.

The company says “but for HRM’s misrepresentations, Poly­corp would not have purchased the property," or it would have asked a judge to rule on whether it could be developed, before inking the deal.

Polycorp bought the empty lot from DDP-Brunswick Ltd. That company is related to Mississau­ga, Ont.- based TransGlobe Prop­erty Management Ser vices Ltd. , which owns the adjacent Ocean Towers. But TransGlobe didn’t build the towers and they have been owned by several entities since they went up 40 years ago.

“The matter has become very complex because there are now six parties involved in the litiga­tion," Polley said Monday.

Those include TransGlobe,

Causeway Bay Inc. , an invest­ment group out of southern Onta­rio that sold the property to TransGlobe, and the province, which operates the registry of deeds, Polley said.

(clambie@herald.ca)

[halifaxboyns]

I dunno about this. I doubt it's going to work in his favour to push the city into anything.

THe document he's refering too is a Zoning Confirmation Letter; but really all it looks at is the zoning of the property and usually the last approved development on the site. It's no more of a guarentee that a certificate of compliance is out here in Alberta, which typically only looks at whether the building was built on the parcel in compliance with the zoning rules (setbacks usually) and lot coverage. I remember a situation where I worked and issues a compliance for a site and then 3 weeks later, issued an order on the site to the owner and real estate agent for an illegal suite (and because I had the power to register the order on the title - which was typical, I did and it stopped the sale). They sued the City I worked for claiming the certificate was their assurance all was fine. They lost, because clearly no permits had been issued for the suite, which the bylaw required a seperate permit for.

This is a great example of buyer beware. He might be able to get some $ from NS government though if they can prove that documents, which HRM (then City of Halifax) filed somehow didn't end up on title.

[Keith P.]

The difference in this case is that not only did they get whatever assurances they got from HRM, but that also that HRM had never registered the documents they are now relying upon to back up their refusal of the development. They were found in a file at the city archives, not registered at the Deeds Registry with the rest of the documentation about the property. No reasonable person considering purchasing the land or doing the development would believe that there was anything to prevent the development, until - hey presto - HRM finds this archival document from the early 70s that nobody involved had seen previously. Polycorp deserves to win this case.

[DigitalNinja]

I agree with Polycorp here. If you get into contact with the city and say "It is zoned for residential I can build here." And they say "Yes." Then there is no case it was bought with that pretext in mind, if the city wants to keep it parkland they should be forced to buy it back from polycorp at the price he paid plus financial damages, if not then he gets to build.

[halifaxboyns]

I am not trying to defend HRM's treatment, I'm trying to look at all sides. I'm not surprised that it was zoned R-3; if it's a parkland parcel attached to the development of the towers, it would share the same zoning. The only time you might see it not zoned the same is in the case of a condominum. I'll give you an example: There is a huge condo development at the Somerset/Bridgewood station here in Calgary, which is condoed. Each apartment building is on a seperate parcel (with all condos privately owned); but there is a huge piece of parkland for the whole development. To avoid it being sold and retained as common property, it was setout with it's own title (under common ownership) and is zoned parkland. Yet every condo owner has access rights to that parcel.

I wish them every luck in their fight; but currently I sit right in the middle.

[spaustin]

To me Polycorp is a real victim here. It doesn't seem right to me that the city can bind someone to some unregistered document that they've had hidden away in their basement. How can anyone do business in that kind of environment?

Putting that aside though you have to wonder what the point of all of this is given the facts. I think we should all be outraged at the waste of our tax dollars and the lost development. The site in question is a vacant lot. There is no chance that it's suddenly going to become a playground or basketball court or something while it's privately owned. The lot also borders on a four-lane stretch of Barrington Street, which is not exactly a prime spot for a recreational use in the first place. Plus, there is already plenty of green space in the area on the other side of Brunswick including a community garden, some open unstructured space, basketball courts and a playground. Increased density and more residents is exactly what the Downtown and nearby Gottingen needs. Instead, HRM is fighting this ridiculous battle over an unregistered secret restriction to protect green space that has no value to anyone and has no prospect of becoming valuable. It's too bad our council didn't intervene to stop this madness!

[someone123]

Putting that aside though you have to wonder what the point of all of this is given the facts. I think we should all be outraged at the waste of our tax dollars and the lost development. The site in question is a vacant lot. There is no chance that it's suddenly going to become a playground or basketball court or something while it's privately owned. The lot also borders on a four-lane stretch of Barrington Street, which is not exactly a prime spot for a recreational use in the first place. Plus, there is already plenty of green space in the area on the other side of Brunswick including a community garden, some open unstructured space, basketball courts and a playground. Increased density and more residents is exactly what the Downtown and nearby Gottingen needs. Instead, HRM is fighting this ridiculous battle over an unregistered secret restriction to protect green space that has no value to anyone and has no prospect of becoming valuable. It's too bad our council didn't intervene to stop this madness!

Yep. We can argue about what the outcome ought to be here but at the end of the day everybody loses.

[fenwick16]

According to the allnovascotia.com, the court proceeding will begin this week for the Jazz project.

[halifaxboyns]

Developer in zoning fight
Polycorp wants court to force city to respect its own bylaws
By BRUCE ERSKINE Business Reporter
Tue, May 17 - 4:54 AM

Peter Polley wants Halifax to respect its own zoning bylaws.

"It’s been an incredibly frustrating journey to get here today," he said in an interview during a break in proceedings at Nova Scotia Supreme Court on Monday.

Polley, who heads up the Halifax development company Polycorp Properties Inc., was in court applying to have Halifax Regional Municipality respect the R-3 zoning of a Barrington Street property where the company wants to build a $15-million, 63-unit condominium development.

The municipality countered the motion with an application to modify the registration of the property, which it says was designated years ago for recreational purposes.

Polley said the municipality was also challenging the validity of a 2005 consolidation of two parcels of land that comprise the Barrington Street property he wants to develop.

"We can’t build if it’s two parcels," he said.

Monday’s court actions are separate from a lawsuit Polycorp plans to seek compensation for economic losses related to being denied permission to build the condo project.

"It could go on for five to 10 years," Polley said.

He said the suit won’t be launched until the zoning issue for the property, which Polycorp paid $1.27 million to acquire, is fully resolved.

Polycorp received a letter from municipal planning staff in early 2009 confirming the property’s R-3 multiple dwelling zoning.

But when Polycorp subsequently applied for a development permit, it was turned down on the basis that the land had been designated as landscaped open space in the early 1970s.

Polley said Monday that he acquired the property on the basis of its R-3 designation and its development potential.

"We bought it with the belief we could build on it," he said, adding that any land use restrictions should have been part of the public record.

Paul Dunphy, the municipality’s director of community development, said Halifax had a responsibility to uphold previous property development restrictions.

He testified that zoning confirmation letters are indicative, not definitive.

"If they were (definitive), you wouldn’t need development agreements," he said.

The legal matter was scheduled for four days, but could wrap up earlier, Polley said.

[someone123]

"If they were (definitive), you wouldn’t need development agreements," he said.

This seems wrong.. not every development needs a DA, but the HRM's claim here is that nothing can be built, which is highly unusual. It would be a different matter if this case were just about building 4 floors vs. 15 floors or something similar.

The only way we can have a fair system that works is if the HRM, upon request, either informs people about restrictions on their property or informs them of the approval process they will have to go through in order to develop. It is absurd to require developers to put down millions for properties without knowing whether or not they're expected to later donate them to the city for a public park.

[halifaxboyns]

This seems wrong.. not every development needs a DA, but the HRM's claim here is that nothing can be built, which is highly unusual. It would be a different matter if this case were just about building 4 floors vs. 15 floors or something similar.

The only way we can have a fair system that works is if the HRM, upon request, either informs people about restrictions on their property or informs them of the approval process they will have to go through in order to develop. It is absurd to require developers to put down millions for properties without knowing whether or not they're expected to later donate them to the city for a public park.

What I find odd about this is the whole issue of the parkland dedication. Why wasn't it registered on title? I don't know how they were able to break the parcel off the main and sell it - it should not have been allowed through land titles in the first place.

[someone123]

What I find odd about this is the whole issue of the parkland dedication. Why wasn't it registered on title? I don't know how they were able to break the parcel off the main and sell it - it should not have been allowed through land titles in the first place.

Sounds to me like somebody simply forgot to register the document back in the 70s. That is too bad, but shouldn't be the developer's problem today.

[halifaxboyns]

Sounds to me like somebody simply forgot to register the document back in the 70s. That is too bad, but shouldn't be the developer's problem today.

The problem is that in terms of the decision to approve the adjacent towers - that decision was made with the parkland dedication requirement. So in terms of a legally binding development permit; now you have a situation where a condition of that permit (the parkland) isn't being fullfilled.

So you create an even bigger legal issue/argument - whether or not the current property owners are in breach of the approved permit? This becomes an even bigger issue.

It's not a matter of whether the City should just 'let it go'. If they do, they create another mess with the permit itself.

[Empire]

The problem is that in terms of the decision to approve the adjacent towers - that decision was made with the parkland dedication requirement. So in terms of a legally binding development permit; now you have a situation where a condition of that permit (the parkland) isn't being fullfilled.

So you create an even bigger legal issue/argument - whether or not the current property owners are in breach of the approved permit? This becomes an even bigger issue.

It's not a matter of whether the City should just 'let it go'. If they do, they create another mess with the permit itself.

It's time to call a spade a spade. Someone in charge of the strings simply doesn't like the ugly spice building. The fear seems to be that it will be repeated on the adjacent lot and therefore, the hoops and loops just get bigger and bigger for approval.

[Keith P.]

The problem is that in terms of the decision to approve the adjacent towers - that decision was made with the parkland dedication requirement. So in terms of a legally binding development permit; now you have a situation where a condition of that permit (the parkland) isn't being fullfilled.

More specifically, it was designated as a "playground". It has never been a playground. Ever. You'd think HRM would have noticed that sometime over the last 40 years.

So you create an even bigger legal issue/argument - whether or not the current property owners are in breach of the approved permit? This becomes an even bigger issue.

It's not a matter of whether the City should just 'let it go'. If they do, they create another mess with the permit itself.

HRM had numerous opportunities to enforce the original terms of the DA over the last 4 decades. They did not do so. There is a reasonable expectation that latter-day owners of the Ocean Towers site had no knowledge of the unrecorded interest. Therefore HRM should not have a leg to stand on. They should lose the case and be made to pay Polycorp damages.

[fenwick16]

It seems like the municipality has no chance. Hopefully the municipality won't try to blame the person who issued the letter and say that they didn't authorize the letter (is the person who authorized the letter in a high enough position to issue such a letter?) I hope that won't happen, but even if it does the municipality might be the ones who have to pay since they are the ones in a financial position to pay (I remember reading about such a case several months ago).

[someone123]

Hopefully the municipality won't try to blame the person who issued the letter and say that they didn't authorize the letter

This doesn't make sense. HRM produced the letter and claimed that it was adequate to deny Polycorp permission to develop.

[fenwick16]

This doesn't make sense. HRM produced the letter and claimed that it was adequate to deny Polycorp permission to develop.

The HRM isn't a person, so it wasn't the HRM that issued the letter. It was an individual employed by the municipality that issued the letter. This might seem like a moot point but it really isn't. For example, you couldn't ask an HRM bus driver to issue you a development agreement.

I agree with Poly Corp. I just wonder how the municipality can expect to defend itself. The only way that I can imagine them (the HRM lawyers) defending the municiaplity is to say that the person issuing the letter didn't have the authority to do so.

PS: I mean this letter - "Polycorp received a letter from municipal planning staff in early 2009 confirming the property’s R-3 multiple dwelling zoning" (quoted from the story) not the one from the 1970's stating that it is to be used as a playground. The two documents seem to contradict each other.

[someone123]

The HRM isn't a person, so it wasn't the HRM that issued the letter. It was an individual employed by the municipality that issued the letter. This might seem like a moot point but it really isn't. For example, you couldn't ask an HRM bus driver to issue you a development agreement.

Right, except HRM's legal and planning departments have been perfectly aware of this document for a while and have cited it as if it were a valid document.

I am no legal expert but I'm guessing they can't have it both ways, first claiming it was issued by them for the purposes of denying a permit then claiming it's invalid in order to avoid liability for damages caused by their own actions...

[spaustin]

My hunch is that Polycorp's letter from HRM was just a letter confirming zoning, which I bet would have a disclaimer since letters aren't approvals or guarantees. I don't know that the letter is the most important element of this case though. What is more problematic is that HRM essentially hid the restriction on the property in the basement (dug it up after Polycorp bought the land and formally applied) and allowed the subdivision of the "playground" parcel from the main chunk.

In any case, HRM's approach to this has been completely ridiculous. There is no chance that the vacant land will ever become a playground and even if it did, it's not exactly a great spot for a playground since it borders a 4 lane undivided streatch of roadway with fast moving traffic. There is also already a fully built park and playground on the other side of Brunswick only a block up. How many playgrounds does one neighbourhood need? Allowing Polycorp to develop this site fits all of HRM's other planning goals of encouraging density on the Peninsula. Too bad Council didn't take some leadership on this since we're either going to lose a good opportunity site or end up having to settle a lawsuit. Either way, HRM's taxpayers lose.

[Empire]

The land use restriction should have been part of a statement of disclosure when the property was sold. Obtaining a letter from HRM stating that the property is zoned R3 doesn't mean it's free of restrictions. It is possible that the development officer was unaware of the restriction when Polycorp asked for confirmation of the development potential. The restriction then came to light when an official permit was filed and someone decided to uphold it.

Is it possible that Polycorp could have found the restriction with more research even though it does seem excessive to have to dig that deep?

[halifaxboyns]

More specifically, it was designated as a "playground". It has never been a playground. Ever. You'd think HRM would have noticed that sometime over the last 40 years.

HRM had numerous opportunities to enforce the original terms of the DA over the last 4 decades. They did not do so. There is a reasonable expectation that latter-day owners of the Ocean Towers site had no knowledge of the unrecorded interest. Therefore HRM should not have a leg to stand on. They should lose the case and be made to pay Polycorp damages.

Is there actually a DA on the site? Wasn't it discharged? Or was the permit issues and then the DA discharged?

I don't know - I'm still not feeling for one side or the other; that's really what I'm trying to get across. Their hasn't been enough evidence given out in the articles for me to feel comfortable going for or against either side and I doubt we'll really see it all either. But I certainly hope its not a matter of staff not liking the spice building - that should have nothing to do with it.

[Keith P.]

Is it possible that Polycorp could have found the restriction with more research even though it does seem excessive to have to dig that deep?

It was found in a file in a box in the basement of the HRM archives in Burnside. it was unrecorded at the Registry of Deeds and not found in the provincial land registry. That is why there is a provincial official apparently set to testify at trial. If you cannot rely on the land registry when purchasing property the entire system is undermined and is of no use. This would have a chilling effect upon development in general.

[fenwick16]

It was found in a file in a box in the basement of the HRM archives in Burnside. it was unrecorded at the Registry of Deeds and not found in the provincial land registry. That is why there is a provincial official apparently set to testify at trial. If you cannot rely on the land registry when purchasing property the entire system is undermined and is of no use. This would have a chilling effect upon development in general.

It sounds like the municipality has no chance of winning this. What about this item - "Polley said the municipality was also challenging the validity of a 2005 consolidation of two parcels of land that comprise the Barrington Street property he wants to develop." (quoted from the story in the Chronicle Herald). How did that consolidation occur - was it approved by the municipality?

[halifaxboyns]

It sounds like the municipality has no chance of winning this. What about this item - "Polley said the municipality was also challenging the validity of a 2005 consolidation of two parcels of land that comprise the Barrington Street property he wants to develop." (quoted from the story in the Chronicle Herald). How did that consolidation occur - was it approved by the municipality?

It would've required the Municipality to sign off on the consolidation subdivision and register it.

[fenwick16]

I have a concern that even if Polycorp wins this battle, thereby winning approval to build the Jazz, that the corporation will get little support from the municipality. In the case of the Waterside, such a lack of support has been an obstacle to the development proceeding in a timely manner.

[beyeas]

I have a concern that even if Polycorp wins this battle, thereby winning approval to build the Jazz, that the corporation will get little support from the municipality. In the case of the Waterside, such a lack of support has been an obstacle to the development proceeding in a timely manner.

That may very well be an issue in this case, but I really don't get the feeling at all that that is the case for Waterside. There is absolutely no indication that even if McCrea had the easement he is looking for that he would be proceeding. I guarantee that if he had the tenants actually lined up and financing in place he would be screaming a lot louder. McCrea seems to be a lot of bluster these days with very little actual progress on projects. Most of the time all I hear from him in the press is complaints about other projects and how if they move forward he won't be able to build his.

I think that until the issue of Nova Centre is settled, no other office projects of any significance downtown will be able to move forward, because everything is on hold until they see if NC goes forward and eats up the next number of years of required spaced. That is a far bigger hold up for Waterside than the easement issue.

[worldlyhaligonian]

If Polycorp wins the case, will there then be a possibility of this development proceeding?

[halifaxboyns]

If Polycorp wins the case, will there then be a possibility of this development proceeding?

My understanding is that they applied for a permit and it was refused. If they are taking this to court, the court could overturn the refusal and direct HRM to issue the development permit.

On the flip side, if the judge agrees with HRM's position - he/she could order that the land title created from the consolidation be nullified and the original parcel configuration restored (thus disolving the consolidation subdivision and cancelling the new PID number of the now new parcel).

[worldlyhaligonian]

Thanks for the information, I can't see HRM winning this one.

[fenwick16]

According to the allnovascotia.com, the municipality has lost the court case to Polycorp and must pay $148,875 in legal fees to Polycorp.

There is a 30 day appeal period. So Polycorp will wait at least that long prior to proceeding.

(Source: Polycorp Wins Right to Build Jazz by Amy Pugsley Fraser, allnovascotia.com, June 21, 2011 edition - http://www.allnovascotia.com/index.php - a subscription is required for the URL to work).

[halifaxboyns]

I just did a quick check on the NS Court decision page and the full decision hasn't been published yet. Will be an interesting read.

[someone123]

This seems like the only fair outcome in an "everybody loses" type of situation created by the HRM.

I wonder if anybody working for the city will have to answer for this mess. Why are they so difficult? Does anybody who lives around there even care about the parkland?

[Jonovision]

Glad to hear about the decision.

Someone, the site is actually used every sunday afternoon for a group that plays Cricket.

[DigitalNinja]

I hope the city learned their lesson.

I would like to see the reaction from polycorppete, I'm sure he will be along shortly.

[Keith P.]

One can only presume that a high-level HRM legal services person advised them to go this route. Hopefully the costs impact them personally, though we all know that won't happen. The person deserves to lose their job. This is the only possible outcome given the facts and kudos to Polycorp for seeing it through.

Now the Five Guys Named Moe will have years of employment ahead! I look forward to seeing this complete sometime in the next 20 years. ;)

[halifaxboyns]

This seems like the only fair outcome in an "everybody loses" type of situation

I agree with this part of your statement and couldn't put it better. But I don't think it was necessarily all HRM's fault. It sounds like the Provincial Registry made some mistakes in not filing information properly...but regardless, it was a no win situation.

This could've gone either way and HRM (by law) has to protect decisions it makes through permits or development agreements. If it made a decision to require the land for a parks purpose, then something (a bylaw requirement or DA requirement) was being adhered too. There are ways around that, but it wasn't done.

I don't anyone should loose their job, but I do think this is a learning opportunity. Perhaps HRM could've looked at other methods to have gotten the development done, without the need of refusing the DP. But the developer should've been on board to explore those avenues - without knowing what they could've been I'm speculating. Personally, if I became aware of this situation, I'd look into alternatives. Perhaps, if there was a DA involved, the DA could've been discharged (at no or little cost to Polly Corp)? Or if a variance could've been done, then go that route? Court should always be the last option.

The catch with this is that it also assumes the developer would be willing to accept a delay in their approval to get the necessary work done. I can't say if Poly Corp would have been (I have no reason to believe otherwise), but I'm sure others wouldn't. Planning law is complicated - not because planners like it that way, but changing rules makes things that way.

Case in point: I had a guy come in for a permit to renovate an existing 5 unit building. The plans were awful and I instantly got a suspicion something was up, since it was 5 units in a zone that only allowed 2. I pulled the permit history, no record of any lawful units. We did a site inspection - turns out the building had at one time 8 units. Well, the only things I could do for him was to suggest he rezone, or reduce the number of units to 2. I couldn't issue an approval for a use that had no legal standing. He was a very nice man too; I wasn't too happy about that - but I couldn't change the rules.

[Keith P.]

I agree with this part of your statement and couldn't put it better. But I don't think it was necessarily all HRM's fault. It sounds like the Provincial Registry made some mistakes in not filing information properly...but regardless, it was a no win situation.

The Registry of Deeds was given nothing to register. They made no mistakes. They were not at fault in any way and in fact were also awarded damages from HRM.

HRM had nothing to stand on in this case and their arrogance in not recognizing their own mistakes is now making all of US pay, just as we are paying for Peter Kelly's largesse with directing that money be given to Harold MacKay. Absolutely shameful.

[halifaxboyns]

The Registry of Deeds was given nothing to register. They made no mistakes. They were not at fault in any way and in fact were also awarded damages from HRM.

HRM had nothing to stand on in this case and their arrogance in not recognizing their own mistakes is now making all of US pay, just as we are paying for Peter Kelly's largesse with directing that money be given to Harold MacKay. Absolutely shameful.

Really? I thought I read that they had been given something...I guess I'm wrong and stand corrected! Well, regardless, my point is that before they refused the permit they should've done some more digging to be sure. I agree, they appear to have been quick to just refuse the application. Personally, I would've gone and pulled all the title records first, to be sure it wasn't there. If things weren't, then I would've gone to the law department - asked for advice and then made a decision. But that's just me...

[spaustin]

Glad Polycorp can now get on with things. Why HRM chose this hill to die on is beyond me. The site wasn't worth arguing about. It's way better off as an additional condo then a vacant lot that would never ever become a playground or any kind of recreational space. Now HRM's citizens have to bear the cost of this very ill advised lawsuit.... Hopefully HRM will let it rest there. Appealing would only send more good money after bad.