Rothesay's Crosby loses appeals against Common project

One of Rothesay's most established families has been handed a defeat in its bid to stop or reverse the redevelopment of the town's central park, also known as the Common.

James Crosby, whose fancy molasses import company got its start near the turn of the 19th century, has been notified that his five appeals of the project have been dismissed by New Brunswick's assessment and planning appeal board.

Two were considered out of time, and three were rejected on their substance.

It's unclear what would have happened if Crosby had prevailed because the town long ago pushed ahead on its vision to rebuild an outdoor ice surface, recreate the playground and construct new changing rooms and a garage for equipment all of which has been in use since December 2015.

"We hope that this has closed the issue," said RothesayMayor Nancy Grant. "I think unquestionably the project was a success. The council of the day, the last council, thought this was good for the town and would be a community builder and that it would be something that would increase activity and lead to healthy lifestyles.

"I think that has all been validated. The Common has seen such excellent usage in its first summer season and its first two winter seasons. It's again become a gathering place."'

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The provincial board's written decision is dated May 23, 2017, some 19 months after itlast heard evidence in a hearing in Saint John in October 2015.

There is no award of costs, and the board has no power to make such an order.

Grant saidthe town spent more than $140,000 defending the Common redevelopment against challenges from Crosby,includinga legal defence in the Court of Queen's Bench.

Crosby had applied for a court order to stop the project, in which he argued the town had flouted its duty to consult the planning advisory committee and give citizens their say.

He said the town acted in an arrogant and high-handed manner.

Crosby was unavailable for an interview Wednesday, but he had previously told the CBC the issue was personal.

"They are building this development across the street from the house I was born and raised in," he said outside the Saint John court house in June 2015. "People kept asking me, 'Somebody should do something about it.' And I decided I was going to do it.

"Once you take a green space and turn it into buildings and basketball courts and so on, you're never going to get it back."

Challenge didn't work

But Crosby's efforts to persuade the court to grant an injunction did not succeed.

In his decision dated June 25, 2015, Justice Thomas Christie wrote that he was "cognizant of Mr. Crosby's view that the Appeal Board has no effective remedial power to correct or stop the project that is well underway."

The judge then went on to say he was reluctant to preempt the board, which he recognized as a specialized tribunal mandated by legislation to deal with appeals such as the ones Crosby had already filed.

Christie rejected the application for an injunction and awarded costs $1,000 to the town.

The assessment and planning appeal board decision is signed by vice-chair Dwight Allaby.

Couldn't be heard

It does acknowledge that the Common project was not sent to the planning advisory committee and went on to say: "The decision cut off the Appellant's ability to be heard at a public hearing and the Board believes this resulted in the appeals being presented."

"Greater care should have been taken to ensure that the public would have as much public input as possible, which was not the case in this situation."

The board also found that the interpretation of the municipal plan by the development officer led him to determine that the zoning for the Common fell within the definition of "park," which was a permitted use under the bylaw, and because no new issues were being proposed, the planning advisory committee's approval was not required.

The board ultimately concluded that there was no misapplication and "all the appeals are therefore dismissed."