Council Update: Infill Bylaw and Dartmouth Cove

Agenda, November 14

Harbour Infilling:
The question of infilling was back at Council on Tuesday. Before us was a staff recommendation to initiate planning amendments to the Centre Plan and Halifax Mainland plans to prohibit infilling in the Northwest Arm. What wasn’t included was the same prohibition for Dartmouth Cove where infilling has also been a major issue of public concern. Dartmouth Cove is an important place in Downtown Dartmouth and no one wants to see it turned into an unplanned dumpsite.

First, it’s important to know that HRM has no jurisdiction in the Harbour. The Harbour is the responsibility of the federal government. It’s the feds that approve or reject applications for infill. The feds, however, have traditionally limited what they consider when assessing infill to federal responsibilities, primarily fish habitat and navigable waters. The result is a gap since that very narrow federal perspective doesn’t take into account planning or any other broader community concerns.

So if HRM has no jurisdiction in the Harbour, how could a municipal bylaw control infilling? The solution that has been worked out with the feds in the Northwest Arm is to make infill permits conditional on applications conforming with any HRM planning bylaws. HRM’s proposed bylaw amendments would not allow for infilling in the Northwest Arm so applicants wouldn’t be able to meet the conditions attached to the federal approval. HRM’s bylaws would have no force on their own. It’s the feds making complying with them a condition of infilling approvals that would give them power. This means the feds could still overrule HRM by issuing permits that aren’t conditional, but the indication from them is that they wouldn’t do that in the Arm. The federal government is still the ultimate decision maker here. They’re simply agreeing to allow HRM to have some say.

So why is this solution to infilling in the Northwest Arm not being extended to Dartmouth Cove? Unfortunately, there seems to be a lack of clarity on whether the feds would extend the same arrangement to anywhere in the main Harbour, such as Dartmouth Cove. Federal concerns around limiting infilling in the main Harbour are centred around preserving industrial and military activities (the working Harbour) and the need for pyritic slate disposal sites. Staff discussions between HRM and the feds have not indicated federal willingness to consider regulations beyond the Northwest Arm. HRM’s staff report notes the following:

“To date, staff of the department (federal) have only committed to a conditional approval process under the Canadian Navigable Waters Act applying with respect to water lot infilling activities over the Northwest Arm“

And

“However, Transport Canada has made no commitments to extend this limited jurisdiction recognition to the rest of the Halifax Harbour, including the Bedford Basin. The reason being that, unlike the Northwest Arm, the rest of the Halifax Harbour has commercial, industrial, port, and military activity, and is also a recognized receiving body for pyritic slate disposal. These activities and uses are consistent with the nature and purposes for the designation of Halifax by Canada as one of the five leading National Ports“

Support for prohibiting infill at Dartmouth Cove at the federal staff level seems lukewarm at best, which isn’t that surprising given how court cases in other harbours across the country have played out when municipalities have sought to extend their jurisdiction. It’s a shame because Dartmouth Cove isn’t some future dockyard or marine industrial site. Dominion Diving is the only true marine use still operating there. Dartmouth Cove’s future is increasingly parkland and mixed-use residential and, like the Arm, it’s a relatively small body of water where the impact of infill can have an outsized effect.

While support at a staff level seems weak, Dartmouth’s MP, Darren Fisher, has rightly been carrying forward constituent concerns. His efforts have resulted in a general letter from the previous Transport Minister indicating that the feds would be willing to work with HRM, not just on the Northwest Arm, but also in Dartmouth Cove. The letter is available here. Some general federal political support, but no federal staff support seems to be the situation.

Having the feds talk out of both sides of their mouth on Dartmouth Cove definitely complicates things! I don’t know who wins the internal argument inside the federal government, but the lack of federal staff support seems to be a major part of why Dartmouth Cove has been left out since any HRM bylaw has no force without federal agreement.

Regardless of contradictory federal messages, my challenge yesterday was what to do right now? I really wanted to add Dartmouth Cove to the current planning amendment process, but the deal between federal and municipal staff around the Northwest Arm includes such aggressive timelines that there was no way to add Dartmouth Cove without jeopardizing the goal of a January public hearing for the Northwest Arm. The Arm has even older outstanding infill applications than Dartmouth Cove and there is a real risk that Transport Canada could proceed without HRM if we don’t move quickly. The clock is running out. Kind of an impossible situation to be dropped in! So rather than delay the bylaw changes for the Arm, I moved for a supplemental staff report to start a process on Dartmouth Cove as follows:

Request that staff engage with the federal government to explore the Minister’s willingness to adopt or otherwise permit further restrictions with respect to infilling in Dartmouth Cove and prepare a supplemental staff report regarding the initiation of bylaw amendments to the Regional Centre Secondary Municipal Planning Strategy to restrict water lot infilling in Dartmouth Cove

I really don’t know at this stage whether the outcome of the supplemental report will be municipal bylaw amendments for Dartmouth Cove. If the feds eventually give a definitive no rather than a whispered one, it will be hard to argue that HRM should proceed with a bylaw that will be ultimately ignored and have no force. The feds could say yes though, which would be the ideal outcome.

Staff indicated that a response to my Dartmouth Cove motion will take several months so this will probably be back to Council in mid-2024. We will all know more about what the art of the possible is then.

Other:

• HRM registered four new heritage properties in Halifax, 6484 Jubillee Road, 1741 Henry Street, 1745 Henry Street, and 6038 Charles Street
• Turned down forming a council committee on the defund report as the work that a committee would undertake is already in motion at the Police Commission and through HRM’s new public safety office and other upcoming reports to Council
• Once again will write the Province requesting that permanent residents be allowed to vote in municipal elections, and for consideration of a Mi’kmaw Council seat
• Approved the launch of a School Safe Streets pilot program
• Amended the Density Bonusing and the Affordable Housing Administrative Orders to allow for (1) density bonusing in the suburban areas, (2) allowing non-profits to apply to the programs for leased spaces, (3) allowing Halifax Water development charges to be considered an eligible expense that grants can be given for (HRM will write the Province seeking amendments to the Public Utilities Act so that they can be waived instead), and (4) allocated some funding from the Housing Accelerator program to non-profit housing in suburban areas to get the density bonus program started
• The Mayor will also write the Province requesting an update on the Coastal Protection Act
• Requested staff reports on protecting HRM’s Eastern Hemlocks from an invasive insect (Woolly Adelgid), and on transferring the area rate proceeds for maintenance of streetscaping in Sheet Harbour from the Sheet Harbour and Area Development Corporation to the Sheet Harbour and Area Chamber of Commerce