This page is a subpage of Path by the Arm in Jollimore
Regarding: PLANAPP 2023-00802 (Former Case 24505)
– 10 Kirk Road, Halifax
Submission from Patricia Manuel
to Halifax and West Community Council
25 November 2024
Dear Councillors,
Thank you for the opportunity to provide input on the proposed Development Agreement for 10 Kirk Road. My comments focus on the Tow Path along the western shore of the Northwest Arm. I am writing to stress the importance of HRM negotiating secured public access along the Tow Path section that crosses the property, as part of this Development Agreement.
For context, I am a resident of the Jollimore area for almost 40 years. Although I do not live in Jollimore Village, I am a neighbour and know it well, having lived there before moving to Forward Ave. Like many people in the area, I regularly walk along the Tow Path. I will also state that I am a planning educator and professional. I am a retired professor of planning at Dalhousie University, and I am a licensed professional planner (LPP) in Nova Scotia. I have expertise in coastal planning, including coastal access. I am not submitting this letter in my professional capacity, however, but rather as an area resident.
Background
The Tow Path warrants specific attention because of its historic, cultural and recreational significance to Jollimore Village and the west side of Northwest Arm generally. The path and traveling along it is part of the cultural heritage of this shore, shared by shoreline owners and users alike and maintained through tradition over the years.
The path extends from Fleming Park to the Royal Nova Scotia Yacht Squadron crossing multiple private properties and used by the public for different purposes over many, many years. Today it is part of a much-used walking loop through the Northwest Arm neighbourhoods and is still used as a transport route for people taking small craft like kayaks and paddle boards from Jollimore to the Dingle. Shoreline property owners acknowledge the long tradition of the path as many of them still support its use, especially those in the section which includes the property at 10 Kirk Road. Access across this property is critical to the continuity of this route from the centre of Jollimore down McManus Road and along the path to the wharf and beach at the Dingle.
Unfortunately, the proposed Development Agreement neglects the core requirement for this path – ensuring continued public access along this section of the Tow Path – and the cultural significance to the community. HRM needs to address the omission and use the opportunity of negotiating a development agreement to ensure the existing access is not lost and secure a public easement.
By not negotiating an easement, the municipality is not working to meet the recreation objectives of the Halifax Municipal Planning Strategy 7. Community Facilities, 7.4.2 and Section X Mainland South Secondary Planning Strategy, 4. Recreation, Policies 4.4, 4.5 and 4.6. I will return these policies, below.
An earlier Development Agreement proposal showed that securing a suitable easement is possible. I will be referring to this earlier proposal for comparison purposes, as does Attachment 1 Heritage Advisory Committee Special Meeting September 12, 2024, appended to Item No. 14.1.1 Halifax and West Community Council, under consideration. The agreement is available at
https://legacycontent.halifax.ca/council/agendasc/documents/110621ca1121.pdf
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There is one reference to and depiction of the Tow Path in the proposed Development Agreement now under consideration. It is section 3.10.6.
“The footpath as depicted in Schedule B shall be the sole responsibility and maintained by the Developer.”
This statement is woefully inadequate for the treatment of this valued community historic, cultural, and recreational feature.
Argument:
The scant treatment of the Tow Path in the proposed Development Agreement is puzzling for reasons described as follows:
1) The intent to maintain public access was suggested in a draft site plan dated 31 August 2022 and stated at the Public Information Meeting of 23 February 2023.
A draft site plan dated 31 August 2022 shows the property owner’s intent to provide the narrow swath of the existing path, a “1-meter wide easement in favour of HRM permitting unencumbered and unobstructed public access to foot path”
https://cdn.halifax.ca/sites/default/files/documents/business/planning-development/applications/24505-a-siteplan-2022.12.12.pdf
During the public information meeting of 23 February 2023, for the proposed development (See Attachment B of Item No. 14.1.1), the property owner and the HRM planner indicated the intent to maintain access along the Tow Path. The exchanges regarding the Tow Path are found on Page 2 of 7 and Page 4 of 7 of Attachment B:
On Page 2, Patricia Manuel, resident, asks if there would be any common public land allocated to the community.
J. Lugar, the HRM planner, replied that it is not a requirement of the policy, can’t really speak on that. It is a private property. Not that kind of thing we would get involved in. There is a tow path that goes though there, and the intent is to keep and maintain it.
On Page 4, Sheila Kindred, resident, asks specifically about the intent to maintain the tow path and if there will be public access.
J. Lugar, the HRM planner, replied that it will be kept for public access, it has not been written in the agreement yet because the agreement isn’t written. Things are still at an early stage.
P. Taylar, Marterra Inc, property owner added that the plan is to give/gift this property to HRM. It will become city property and it will be maintained by the property owner. It will clearly be stated that it will have public access.
Section 3.10.6 does not reflect the intent for a path conveyed to the public at that meeting: there is no reference to even a minimally wide easement; no reference to public access; HRM is not identified in association with the path in any way. However, the earlier draft site plan and comments at the meeting six months later suggest that this easement, or an easement of some kind, was under consideration.
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2) A previous Development Agreement proposal, prepared for this property in 2011 with the previous property owner, recognized and addressed public access along the Tow Path with an unobstructed 3 metre HRM easement, maintained by the landowner.
The 2011 Development Agreement is discussed on Page 3 of Attachment 1 Heritage Advisory Committee Special Meeting September 12, 2024, as Document #100025627; Case #16217.
https://legacycontent.halifax.ca/council/agendasc/documents/110621ca1121.pdf
A Development Agreement proposal that comes to Council and the public for consideration should reflect the intent and understanding of both parties. This 2011 Development Agreement suggested an advantageous understanding between the landowner and HRM, on behalf of the public, regarding public access along the Tow Path.
The relevant sections from the 2011 Development Agreement are:
Schedule E Preliminary Easement Plan – a Map showing the proposed Tow Path HRM Easement of 3 M wide.
Section 3.2. General Description of Land Use, 3.2.1 (f); “An easement at least three (3) metres wide for public access across the Lands along the Towpath”
Section 3.4 Subdivision of the Lands, 3.4 h (viii) – “An easement at least three (3) metres wide for public access across the Lands along the Towpath in accordance with Schedule E of this Agreement and subject to approval by the Parkland Planner.”
Section 3.10 Landscaping, 3.10.9 (b) “(b) Fences shall be permitted along the side and rear boundaries of the Lands, excluding the boundary along the Northwest Arm, and excluding any fences across the easement for public access along the towpath. Such fences shall be no greater than six (6) feet in height; be constructed of wood, stone or metal excluding chain link; and be aesthetically equal on both sides.”
Section 3.14 Maintenance, 3.14.3 “The Developer shall be responsible for maintenance of the Towpath” and Section 3.14.4; “The Municipality shall not be responsible for maintenance of the Towpath or seawall.”
A table on Page 3 of Attachment 1 compares the 2011 proposed Development Agreement to the 2024 proposed Development Agreement. The Table on Page 3 is incomplete. Council and the public need a complete comparison of these two Development Agreement proposals. This table does not include comparison of recreational benefit to the community.
Thus, Table Page 3, should continue and include:
What has changed between 2011 and 2024 that the HRM is not able to secure the same provisions for a 3-metre easement, managed by the property owner? Is it a change in HRM priorities? Is it a lack of willingness from the new property owner to provide a three metre right of way? HRM was able to achieve
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an acceptable agreement before in a Development Agreement proposal. The municipality needs to revisit negotiating an easement on behalf of the community.
3) The 2011 Development Agreement addressed and met the key objective of the relevant policies of Mainland South Secondary Planning Strategy, 4. Recreation, for the shoreline on the west side of the Northwest Arm. The policies have not changed between 2011 and 2024.
The relevant policies of the Mainland South Secondary Planning Strategy are 4. Recreation, Policies 4.4, 4.5 and 4.6. Further, Halifax Municipal Planning Strategy 7. Community Facilities, Policy 7.4.2 now reinforces the MSSPS policies.
7. Community Facilities, Policy 7.4.2 The City shall seek to increase the available points of physical and visual access to the shores of the Northwest Arm. The City, in carrying out this Policy, will give special emphasis to: (a) extending the Northwest Arm pathway from Horseshoe Island to Purcell’s Cove; (b preservation of areas or conditions of unique natural, scenic, or heritage significance associated with the Northwest Arm; (c) provision of public water-based recreation opportunities; and (d) provision, to the extent possible, of a pollution-free environment.
Section X Mainland South Secondary Planning Strategy – 4. Recreation,
Policies 4.4 – The City shall continue to seek public access to the Northwest Arm from and including the Edmonds Grounds to the City limits at Purcell’s Cove. Such access may include pedestrian or limited vehicular access, and consist of existing and future parks, streets and other public land and rights-of-way. Continuous access along the Arm shall be a priority. However, exceptions to this may be considered based upon detailed consideration of site conditions and the acceptability of alternative means of maintaining a continuous open space system in accordance with Policy 4.6.
Policy 4.5 – Pursuant to Policy 4.4, the City shall continue to seek control of portions of the pathway fronting on the Northwest Arm through acquisition or dedication of land as part of the land subdivision process.
4.6 – The City shall develop a strategy for and seek to establish a continuous passive or active recreational open space system in the Mainland South area; such a system would include public parks, walkways, nature trails and water-oriented activities. The principal components of such a system shall be located adjacent to or in association with the Northwest Arm and shoreline, Williams Lake, Colbart Lake, Long Lake, Kidston Lake, and McIntosh Run.
The policy analysis of the 2011 Development Agreement considered the proposal in relation to the recreation polices, along with polices for heritage, environment, residential environment, transportation and implementation. The staff comment regarding the recreation policy objectives was: “The proposal includes an easement for public access along the existing towpath along the Northwest Arm. Since HRM does not have direct access to the towpath in this location, preference is to leave ownership, maintenance and responsibility for the towpath with the property owner.” (PDF page 54 of 87)
The analysis of the proposed 2024 Development Agreement relative to the city wide and local planning policies does not address the content of Section 3.10.6 in relation to relevant policy. As 3.10.6 is about a section of a traditional walking path along the Northwest Arm, the city-wide and local planning recreation policies are relevant. The analysis should indicate that the Development Agreement as proposed does not
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contribute to the policy objectives of advancing access along the western shoreline of the Northwest Arm. Council and the public need a complete analysis, from which they can identify areas for improvement.
The municipality appeared to have achieved an appropriate arrangement for the Tow Path in 2011. Players have changed, including the landowner, HRM staff, and Council, but the policies and the importance of the Tow Path have not changed. The HRM must strive to meet the recreation policy objectives when the opportunity arises. Negotiating public access across the section of the path at 10 Kirk Road advances the recreation policy. It would also secure a public recreation benefit to Jollimore, directly.
4) There is an HRM service easement that already runs along the base of 10 Kirk Road at the Northwest Arm (and other properties). The tow path is immediately adjacent.
The record of the public information meeting for the 2011 Development Agreement (Item No. 11.2.1 Halifax Regional Council June 21, 2011, Attachment C: Minutes from the September 22, 2010, Public Information Meeting) reports the property owner describing that the main sewer for Jollimore runs across the base of the property, towards the Dingle. It is near the easement to the tow path. This is something they will maintain and upgrade.
The proposed 3-metre tow path presented in the 2011 proposed Development Agreement is immediately adjacent to the HRM service easement. Why is this arrangement not suitable for the new property owner and the development?
Conclusion:
The shoreline at the base of 10 Kirk Road is a critical section of the Tow Path. The Tow Path is an historic, culturally valuable feature of Jollimore. Securing public access across this section of the Tow Path is an important community benefit that can come from this development in return for the substantial amenities and services that accrue to the development from the community.
The development at 10 Kirk Road will benefit from the ambiance of being situated in the heart of a long established, unique shoreline neighbourhood. The development phase will be very disruptive, as development activity in established neighbourhoods inevitably is. In the end, this development will contribute more traffic in an already traffic-stressed community, with many walkers. But the community is also welcoming new neighbours who will integrate into, contribute to and embrace life in Jollimore. Hopefully, the people living in this new development will also enjoy the walking routes through Jollimore, including the section along the shore. Logically, they would travel the path along the front of their property and onto the sections of the next properties to reach the Dingle Park. This development is the opportunity to create the kind of access that the recreation policy objectives strive for.
The development at 10 Kirk Road is enabled through a Development Agreement because of the heritage features of the property. The developer has given great care in the proposal to the treatment of the architectural and horticultural features. Because of the use of the path by the public across private shoreline, the Tow Path has become an element of the cultural heritage of the community shared by community members through tradition. It is unfortunate that the proposal does not acknowledge the community heritage value of the path or contain provisions in the application for fostering the community value though shared access.
It is important to foster a positive relationship between the property owners and path users and to seek opportunities to continue support of this relationship. Experience in coastal access in this province, and the HRM, has shown that change in ownership of shoreline property can threaten traditional access. But it
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does not need to be that way when there is clarity provided through easements and agreements, opportunities for which emerge with subdivision and negotiating development agreements.
HRM and the property owner need to negotiate an agreement that confirms public access along this path and ensures no loss of existing public access, and work to establish an easement that is suitable for the community’s needs. Previous initiative showed this goal is possible.
Negotiating a development agreement is an opportunity for advancing public access along the Northwest Arm shoreline that does not come along very often.
Respectfully submitted,
Patricia Manuel
Halifax