Yellowknife city council broke its own rules and showed bias in approving plans for a 102-unit seniors’ facility, some nearby residents contended at an appeal hearing on Saturday.
The hearing of Yellowknife’s development appeal board lasted most of the day. The three-person board now has 60 days to make a decision in writing on the future of the Avens Pavilion development.
Avens, the Yellowknife-based seniors’ care group, says the new building is necessary to provide expanded capacity for the NWT’s growing number of older people who require various levels of support.
The development would fill in most of a currently unused lot close to Yellowknife’s downtown. Some residents say that poses a range of problems such as the building’s shadow blocking sunlight, an increase in traffic, and more danger for pedestrians.
However, Saturday’s appeal by a group of residents focused on what they claim were procedural failings by city council.
Councillors in February ruled the lot could be used to house a special care facility, a “conditionally permitted” use of a building that requires council approval. In April, a city development officer subsequently issued a development permit for Avens to go ahead.
Saturday’s appeal claimed that sequence of events broke Yellowknife’s zoning bylaw.
The appellants, through their representative, argued the zoning bylaw states council alone must control all aspects of issuing a development permit where a conditionally permitted use is concerned, and cannot delegate any of the work to a development officer.
The City of Yellowknife and Avens each said that was an extremely narrow reading of the bylaw, which in other places makes clear that council’s role cannot replace that of staff in the fine detail of permit issuance. They said the Supreme Court of Canada had repeatedly found that municipal bylaws must be “broadly and purposively” interpreted instead of a “narrow and technical reading.”
Appeal ‘is petty’
Bias was also alleged by the appellants, who said Councillor Niels Konge had too close a relationship with Avens chief executive Daryl Dolynny and should have recused himself from discussions of Avens’ request for a development permit.
The appellants’ representative said Konge had “failed to declare a potential conflict of interest or perceived bias” as he showed the appeal board photos of Konge with Dolynny taken from Facebook.
The representative then played video clips from past council meetings of Konge expressing enthusiasm for the Avens Pavilion project and suggesting it was an “easy” decision for him to argue for its approval.
Konge’s approach, it was argued, in part “denied the appellants a fair and impartial hearing.”
Reached by phone on Saturday, Konge dismissed that argument as a hail-mary attempt by nearby residents to stop the development going ahead.
“This is a small town. I know the vast majority of people doing developments in this town. Every issue that comes to council, if people really want to work hard at it, they can always come up with some perceived conflict,” Konge told Cabin Radio.
“We get training in conflict of interest. The rules are pretty clear about what it is. I have excused myself multiple times when there is a clear conflict of interest.
“What you saw today is a bunch of neighbours grasping at any straw they can. They don’t want anything in their back yard and they’re going to use whatever excuse they can, because it’s petty.”
‘Nothing more than a technicality’
Lastly, the appellants argued the City of Yellowknife had withheld certain planning documents from them related to Avens Pavilion, at the time telling residents those documents were confidential and proprietary to the developer.
The city later made the documents in question public. The city acknowledged on Saturday that it had examined its own policy and concluded it was “unfair to members of the public to ask for their comment without first providing them with all materials.”
In its legal brief for the hearing, Avens characterized the appeal as an attempt to have “the interests of a privileged few, who have attempted for years to stop a development near their backyards, be put ahead of the community as a whole, at a time when the territory is facing a housing crisis.”
Avens said the residents’ claim that the entire process was flawed – that council must handle every detail of a conditionally permitted building’s permit, rather than a development officer – meant previous rulings from the appeal board itself would be invalidated.
The appeal board has twice in the past year dealt with appeals related to conditionally permitted buildings, Avens noted. On neither occasion was the role of a development officer questioned in this fashion.
Avens, asking for the appeal to be handled urgently, said time was of the essence to salvage the remainder of the summer construction season. The group claimed almost $34 million in federal funding for the project could be jeopardized if construction does not begin this year.
“The appellants’ argument amounts to nothing more than using a technicality to advance their own interests,” Avens argued.
“Avens asks this board to see this appeal for what it is – an attempt to delay and defund this important community project on the basis of a technicality, because the appellants do not want this development in their backyards.”
Previously, residents launching the appeal told Cabin Radio they felt they had been excluded from discussions with Avens for years. They said an appeal was their last chance to ensure the facility built is the best for seniors, the neighbourhood, and the community.
“We’re not saying no to the project or to the development. We’re just saying do it right,” Judy Murdock said earlier this month.
Summarizing the appellants’ case, their representative said local residents “have consistently supported development on this site for housing for seniors – however, not this development, nor through this process.”
Regarding Konge, he said: “The fact we live in a very small community does not mean any decision-maker is subject to a lesser standard regarding bias.”
The appeal board can now choose to either confirm the development permit for Avens Pavilion, reverse it, or vary it, meaning they can change some of the permit’s rules. The board’s decision is final and binding.