OAKLAND - A Supreme Court judge has sided with the Municipality of Lunenburg, saying its staff did not err when development permits for Seaview Properties were approved.

 "Deference must be paid to the decision of Ms [April] Whynott-Lohnes. I conclude that her decision to grant this subdivision approval is reasonable and I, therefore, dismiss this application," wrote Justice Kevin Coady in his decision.

 The issue began in 2006 when Seaview released a conceptual plan for development of a 12.8-hectare strip of land on Oakland Road. According to that document, the company intended to construct a private road to allow access to 26 free-standing, condominium-type dwellings. The proposal was subject to a development agreement, according to the Oakland Secondary Planning Strategy and Land-use Bylaw.

 The Oakland-Indian Point Residents Association and the Oakland Area Advisory Committee (OAAC) raised concerns over the development.

 In 2007, the developer withdrew its application for a development agreement in lieu of pursuing the matter under the municipality's subdivision bylaw. The subdivision bylaw would not require the company to enter into a development agreement. The application was subsequently approved.

 The move resulted in the association launching a lawsuit to fight the decision of municipal staff for approving the subdivision. Seaview and the municipality argued the company had the right to subdivide the property and place four separate units on each portion of land as an "as of right" development.

 Justice Coady considered the issue of whether the company's application constituted fraud and if the municipality encouraged that fraud.

 "I am unable to conclude that there was any bias or unfairness exhibited on the part of the respondent municipality," said Justice Coady. "It was open to Seaview to proceed in the way that best met their objectives."

 Even though the judge sided with the municipality, Seaview's development will not be proceeding. The company's development permits expired in September.

 Chief administrative officer Tammy Wilson confirmed the company has not reapplied. Meanwhile, the OAAC is currently seeking amendments to its land-use bylaw to clearly state that only one dwelling unit per lot can be built in the planning area.

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 The amendments have passed first reading and are currently going through the public consultation phase.

 In the meantime, staff is not permitted to issue any permits which are contrary to those proposed amendments. Council is expected to pass or defeat second reading in January.

 Following the release of the decision, Ms Wilson said it wasn't about winning or losing for the municipality.

 "The municipality is a decision-maker, an impartial decision-maker. We felt it necessary to defend the expertise of our staff. We didn't want to go to court but we have a responsibility to all the landowners and the municipality to ensure that all planning documents are adhered to," said Ms Wilson.

 "The municipality has and will continue to support staff in carrying out those duties."

 The residents' association chairman, Dana Doiron, said the association is disappointed with the outcome.

 "We will review the decision with legal counsel and consider our options regarding an appeal of the decision," he said.

 Seaview did not participate in the proceedings. Oakland has 30 days to appeal the decision.

posted on 12/16/08