OAKLAND - The Oakland-Indian Point Residents Association has lost its appeal against a Supreme Court decision that sided with Sea View Properties and the Municipality of Lunenburg.

 Nova Scotia Court of Appeal Justice Linda Oland dismissed the association's claim that the former judge erred in dismissing the association's attempt to stop development.

  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.

 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.

 Following approval, the association launched 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.

 Initially the association asked the court to quash the development arguing that the granting of the subdivision application was supported by a false certificate by the owner and that it was accepted by the development officer knowing it was false.

 The judge dismissed the application. The association appealed the dismissal of the application to stop the development.

 In the appeal, the association claimed that judge erred when accepting that it was reasonable for the development officer to approve the subdivision application; and the judge erred when finding it was reasonable for the officer to grant subdivision approval without compliance with the central sewer requirement of the subdivision bylaw.

 The association also asked the appeal judge to determine whether the former judge erred in failing to draw an inference that the "vacant woodlot" certification was untrue. Initially the subdivision application indicated it was for "vacant residential" purpose. That was later changed to "vacant woodlot."

 The association applied for a court order to quash the final subdivision's approval.

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 "It argued that the granting of the subdivision application was supported by a false certificate by the owner that was accepted by the development officer with full knowledge of its falsity," noted the decision.

 The appeal was dismissed by Justice Oland.

 "The judge correctly observed that, unless it was unreasonable, deference must be paid to the decision of the development officer," stated Justice Oland.

 The judge also ordered the association to pay the Municipality of Lunenburg $3,000 in costs. Seaview did not participate in the proceedings.

posted on 08/10/10