Chester ordered to approve rezoning and agreement for Simms Settlement gas and retail project

The Nova Scotia Regulatory and Appeals Board has ordered the Municipality of the District of Chester to rezone land for a gas station and retail development in Simms Settlement and have council approve the draft development agreement. In George Haralabakos, 2026 NSRAB 149, issued October 27, 2026, board member Bruce H. Fisher allowed the developer’s appeal after finding that the refusal did not reasonably carry out the municipality’s planning strategy.

The ruling in matter M12824 did not turn on whether the project was popular or whether municipal staff preferred it. Fisher found that the municipality had not supported its refusal with planning reasons grounded in the strategy. He also examined policies beyond those identified in the refusal notice, rather than treating shortcomings in the notice as the end of the inquiry.

No motion and no vote

Haralabakos applied in January 2025 to change the zoning of a vacant, 4.3-acre property from Settlement Residential 2, or SR-2, to Mixed Use, or MU. His proposed 3,150-square-metre development included a gas station, convenience store and retail space. Both zones permit gas stations and retail uses, but with different limits on their size and intensity. The overall proposal required both rezoning and a development agreement.

Municipal planning staff and the planning advisory committee recommended approval. At the April 8, 2026 council meeting, however, no councillor moved a motion on the rezoning and no vote took place. The application was deemed refused; it was not defeated in a recorded vote.

The municipality’s subsequent notice cited inconsistency with community character, low community support, policy V-10 of the municipal planning strategy, and community feedback that the proposal was incompatible with surrounding residential properties.

Residents raised concerns about the development’s scale, neighbouring wells and groundwater, stormwater and fuel-related risks, traffic movements and deliveries, and the capacity of local services. Other participants supported additional services and fuel access as the community grew. Those competing views formed part of the evidence, not a binding public vote on the application.

Council retained discretion, but needed planning reasons

Under the Municipal Government Act, Haralabakos had to establish that the refusal did not reasonably carry out the intent of the municipal planning strategy. Fisher emphasized that the board’s role was limited: it was not to substitute its preferred planning outcome for council’s, and more than one outcome could reasonably satisfy a planning strategy.

Staff recommendations were not binding on council. But disagreement with staff still had to rest on a reasonable interpretation of the strategy. The board considered the plan as a whole, including policies raised during the appeal that were not specified in the refusal notice.

The municipality’s planning expert defended the possibility of a different outcome from staff’s recommendation, while acknowledging that he would likely recommend approval from a planning perspective. Fisher did not treat that evidence as a concession that approval was the only possible result. The difficulty was that the expert could suggest potential policy grounds but could not explain council’s actual reasoning beyond the notice. Fisher gave his report little weight on that question while using it extensively to interpret the planning strategy.

Both the existing SR-2 zone and proposed MU zone fell within the strategy’s Settlement designation. The rezoning would not change that broader community-character designation. Fisher found no supported policy basis for refusing this proposal simply as inconsistent with community character.

Nor was low community support enough by itself. Public participation could help council understand the evidence, local conditions and whether a proposal aligned with its plan. Council nevertheless had to make the planning decision and identify valid reasons under that plan; the level of support could not replace that analysis.

Broad purpose and specific compatibility tests

Policy V-10 was the only numbered policy cited in the refusal notice. It describes council’s intention to control land use and development to reduce conflicts and maintain a compatible pattern of land use. Fisher read it as broad guidance about the plan’s purpose, not a standalone test for refusing an individual rezoning. He did not treat it as meaningless: its significance depended on its wording and context, and it could carry more weight in a different land-use issue.

Policy A-35, by contrast, specifically required council to be satisfied about matters such as compatible uses, development size, lot coverage, density and effects on nearby land uses from traffic, lighting and noise. That language allowed genuine, though not unlimited, judgment. But Fisher would not invent a value judgment under A-35 that council had not demonstrated it made.

He also considered the compatibility evidence itself. The fact that both zones allowed gas stations and retail did not erase their different scale limits. Still, the evidence did not establish that larger retail amounted to an incompatible use in this setting. Size was one factor among several, and proposed wooded buffers and setbacks helped separate the larger retail component from neighbouring residential uses. Fisher was not persuaded that the proposal was incompatible because of its size.

The applicant’s draft traffic analysis anticipated longer afternoon delays and queues, while predicting no operational concerns at the nearby intersection. It recommended turning-lane improvements and sightline clearing. Fisher considered that evidence alongside the planning policies; the ruling was not a general guarantee that traffic or water impacts could never arise.

He also rejected the additional arguments advanced about the municipality’s best interests and strip development on this record. A nearby rezoning approved in 2022 did not bind council: circumstances could differ, and council could exercise its discretion differently in another application.

Development agreement included in the appeal

The development agreement was linked to the rezoning so that the broader MU zoning would come with site-specific controls. Council had not voted on the agreement either. Fisher concluded that the deemed refusal and appeal covered both matters, which had been included in the public notice and hearing.

Fisher concluded that the legislation allowed the board to order approval or changes to a refused agreement, but did not expressly authorize it to restart council’s process. Its powers were also too narrow to redesign an agreement merely because improvements might serve the public interest. The question remained whether the agreement carried out the planning strategy’s intent.

Fisher found that the draft did so. He noted staff’s examination of requirements addressing stormwater, vegetated setbacks, wetlands, traffic, separation from adjacent properties, and water quality and quantity, among other matters.

The board’s separate October 27 order in matter M12824 directs the municipality to rezone the property from SR-2 to MU and council to approve the draft agreement. The result concerns zoning and the development agreement, not the issuance of a building permit or a finding that construction has begun.