Thursday, September 02, 2010
Dockets: LA08003
IN
THE MATTER of
an appeal by L & A MacEachern Holdings Ltd. of a decision of the City of
Charlottetown, dated
February 11, 2008. BEFORE THE COMMISSION on Friday, the
20th day of June, 2008. Maurice Rodgerson, Chair Order
Contents Appearances & Witnesses Reasons for Order 1.
Introduction 2. Discussion 3. Findings 4. Disposition Order Counsel: Witnesses: 2. For the
Respondent City of Charlottetown Counsel: Witness: Reasons for Order [1] On March 3, 2008 the
Appellant L & A MacEachern Holdings Ltd. (the Company) filed a Notice of
Appeal with the Island Regulatory and Appeals Commission (the Commission)
under section 28 of the
Planning Act,
R.S.P.E.I. 1988, Cap. P-8, (the
Planning Act). The
Company appeals a decision of the Respondent City of Charlottetown (the
City) dated February 11, 2008. [2] The Company sought a
rezoning of its property on 3-9 Harley Street, parcel numbers 274480 and
274720 (the subject property) from Manufactured Housing (MH) zone to Medium
Density Residential (R3) zone, subject to a development agreement. This
rezoning request was rejected by the City at a regular monthly meeting of
the City’s council on February 11, 2008. [3] After due public
notice and suitable scheduling for the parties, the appeal was heard by the
Commission at a public hearing on May 20, 2008. 2. Discussion
The Company's
Position
[4] The Company’s oral submissions
may be briefly summarized as follows:
The Company submits that the subject
property is identified as Medium Density Residential, not Mini Home
Residential, on the Future Land Use Map, which forms Schedule "A" to the
Charlottetown Official Plan, dated July 1999.
The Company submits that the present
Manufactured Housing (MH) zoning of the subject property, as indicated
on Appendix "H" City of Charlottetown Zoning Map July 1999 to the City’s
Zoning and Development Bylaw (the Bylaw), is inconsistent with the
future land use identified on Schedule "A" of the Official Plan.
Section 15 of the
Planning Act
requires the Bylaw to conform to the Official Plan and, in the event of
any conflict or inconsistency, the Official Plan prevails.
The Company submits that the evidence
of both Mr. Poole and Mr. Wood supports a finding that a rezoning of the
subject property to Medium Density Residential (R3) would be consistent
with sound planning principles.
The Company submits that it agrees to
an increased setback of 30 feet and the installation of a privacy fence
and similar measures to address the concerns of an adjacent property
owner. These measures can be incorporated into a development agreement
between the Company and the City.
The Company submits that the subject
property presently has significant problems with its sewer system. The
subject property would require extensive upgrades to its sewer system in
order to continue to be used as a mobile home park.
[5] The Company requests that the
Commission allow the appeal and rezone the subject property to Medium
Density Residential (R3).
The City’s Position
[6] The City’s oral submissions may
be briefly summarized as follows:
While the City’s Planning staff had
recommended that the subject property be rezoned to Medium Density
Residential (R3), some deference should be shown for the City’s
decision. The City’s councillors are elected officials who are, and
ought to be, responsive to the concerns expressed by the residents of
the neighbourhood and of the City as a whole. While the subject
property and its immediate neighbourhood appear to be in transition,
deference should be given to the City’s councillors to control the pace
of any such transition.
The Official Plan does speak of the
need to preserve existing low density residential neighbourhoods. At
present, there are 19 residential units, in the form of mobile homes, on
the subject property. The Company proposes to build two apartment
buildings containing a total of 50 units. This represents a significant
increase in the density of the neighbourhood.
[7] At the hearing, the City took
the position that the subject property was identified as Mini Home
Residential on the Future Land Use Map, which forms Schedule "A" to the
Official Plan. The City explained that there was some confusion between
"Mini Home Residential" and "Medium Density Residential" as the colours
chosen for these two designations were rather similar. As the Company took
the position that the subject property was identified as Medium Density
Residential on the Future Land Use Map, the City’s legal counsel undertook
to file additional maps to clarify the status of the subject property with
respect to its identification on the Future Land Use Map.
[8] The City requests that the
Commission deny the appeal.
[9] On May 26, 2008, the City
provided the Commission with additional maps and a very helpful explanatory
letter from Mr. Poole which concludes that the subject property is in fact
identified as Medium Density Residential on the Future Land Use Map.
3. Findings
[10] After a careful review of the
submissions of the parties and the applicable law, it is the decision of the
Commission to allow this appeal. The reasons for the Commission's decision
follow.
[11] Appeals under the
Act generally take the form of a
hearing de novo before the Commission. In an often cited decision which
provides considerable guidance to the Commission, In the matter of Section
14(1) of the
Island Regulatory and Appeals Commission Act
(Stated Case), [1997] 2 P.E.I.R. 40 (PEISCAD), Mitchell, J.A. states for the
Court at page 7:
it becomes apparent that the
Legislature contemplated and intended that appeals under the Planning
Act would take the form of a hearing de novo after which IRAC, if it
so decided, could substitute its decision for the one appealed. The
findings of the person or body appealed from are irrelevant. IRAC must
hear and decide the matter anew as if it were the original
decision-maker.
[12] In previous appeals, the
Commission has found that it does have the power to substitute its decision
for that of the municipal or ministerial decision maker. Such discretion
should be exercised carefully. The Commission ought not to interfere with a
decision merely because it disagrees with the end result. However, if the
decision maker did not follow the proper procedures or apply sound planning
principles in considering an application made under a bylaw made pursuant to
the powers conferred by the
Act, then the
Commission must proceed to review the evidence before it to determine
whether or not the application should succeed.
[13] The Commission finds that the
above-cited principle, originally applied to decisions concerning building
or development permits, and later applied to applications for variances and
applications for rezoning, is applicable to the facts of this case. A
two-part test is invoked:
Whether the municipal authority, in
this case the City, followed the proper procedures as required in its
Bylaw in making a decision on the rezoning application; and
Whether the City's decision with
respect to the proposed rezoning of the land has merit based on sound
planning principles.
[14] The Company did not raise any
concerns over the City’s administrative procedures utilized for this
rezoning application. The Commission finds that the City did follow all the
procedures required in its Bylaw.
[15] The Commission is satisfied
that the subject property was identified as Medium Density Residential on
the City’s Future Land Use Map, forming Schedule A" to the City’s 1999
Official Plan. The City has noted that there were no formal amendments to
this document which pertain to the subject property. Accordingly, the
Commission finds that the subject property is presently identified as Medium
Density Residential on the City’s Future Land Use Map.
[16] The Commission notes that the
City’s Future Land Use Map is an integral part of the Official Plan. The
City’s Official Plan was prepared in consultation with residents of the City
to provide guidance and direction for the future development of the City.
[17] In the present appeal, the
Company applied to rezone the subject property to Medium Density Residential
(R3). Such a rezoning, if approved, would be consistent with the subject
parcel’s existing identification on the City’s Future Land Use Map.
[18] Counsel for the Company
submits that the current zoning is inconsistent with the subject property’s
future land use identified on Schedule "A" of the Official Plan. Counsel
referred to section 15 of the
Planning Act and
submits that the subject property should be rezoned to resolve the
inconsistency. Section 15 reads as follows:
15. (1) Following the
approval of an official plan by the Minister
(a) the plan becomes the
official plan for the area;
(b) a copy of the official
plan as approved by the Minister shall be published in the Gazette;
(c) the Minister shall deposit
a copy of the official plan, certified by the chairman as a true
copy, in the office of the Registrar of Deeds for the county to
which the plan relates; and
(d) the council shall, as soon
as is practicable, cause bylaws to be made to implement the official
plan.
(2) The bylaws or regulations made under clause
(1)(d) shall conform with the official plan and in the event of any
conflict or inconsistency, the official plan prevails.
1988,c.4,s.15; 1991,c.1,s.1; 1991,c.18,s.22;
1994,c.46,s.4 {eff.} Sept. 1/94; 1995,c.29,s.6 {eff.} Oct. 14/95.
[19] While there is insufficient
evidence and argument at the present time to persuade the Commission that an
automatic rezoning should follow in these circumstances, the Commission
finds that the subject property’s identification as Medium Density
Residential on the City’s Future Land Use Map is highly persuasive. The
Commission finds that the City’s council should have placed more weight on
the fact that the subject property was already identified as Medium Density
Residential under the Official Plan’s Future Land Use Map.
[20] Accordingly, the Commission
will briefly review the evidence on file to determine whether there were
sufficient factors to reject the rezoning application notwithstanding the
fact that the subject property was identified as Medium Density Residential
on the City’s Future Land Use Map.
[21] In the February 4, 2008 report
prepared for Planning Board by City staff, it was recommended that the
rezoning be approved, subject to the Company entering into a Development
Agreement per section 4.60 of the City’s Bylaw.
[22] In the minutes of the February
4, 2008 meeting of the City’s Planning Board, it was noted that 39 letters
were sent out to residents and four letters in opposition to the rezoning
were received. It was noted that the staff recommendation was to require a
Development Agreement. It was observed that the proposed sideyard setback
to the closest home is 30 feet, well above the minimum of 10 feet required.
The minutes go on to read:
Board members debated the project,
but felt the Official Plan already designates this area for medium
density housing, and we should be trying to encourage sustainable
densities in the City of Charlottetown. The Board generally felt that
this project should enhance the neighbourhood in the future compared to
the existing trailer park. The Board agreed to recommend approval of
this rezoning request with the signing of a Development Agreement.
[23] In the verbatim minutes of the
City’s Council meeting of February 11, 2008, Councillors Devine and
MacDonald state:
Councillor Devine: Thank you, Your
Worship. I will not be supporting this recommendation for approval from
Planning Board. I don’t think that two large apartment buildings in
that area of Parkdale would reflect the existing scale of that
neighbourhood although it is zoned R-3. Most of the dwellings are
single-family homes or they are duplexes and I just don’t think the
zoning reflects what is actually there. Although I am not opposed to
development in that area, I think we need a plan and we need a better
plan that reflects more of the existing homes around the neighbourhood.
Councillor MacDonald: Thank you,
Your Worship. Thank you Councillor Devine. I, too, will not be
supporting this resolution. I have received, over the last number of
weeks, three or four communications from residents in that area. Like
Councillor Devine, I don’t think it’s a question so much as not being in
support of development in that particular area but it’s a question of
having more time and trying to come up with some projects that might
better fit into the neighbourhood. We have a unique situation here in
that we have is a small community within a community when we talk about
that mobile home park. We have 18 residents who have lived there for a
long time. It’s going to be very difficult for those resident, in a
short period of time, to be able to relocate and move their homes to
some other mobile home park within the City. Most of the feedback that
I’ve been getting from residents is that they understand that this is an
area of the City that at some stage will likely be developed but at this
time they think the proposal that was submitted at the public meeting
the other night is just not congruent with the area. It’s something
that will create more of a problem then it will solve. We have the
situation with the Allen Street/Mt. Edward Rd intersection that we have
to worry about and we have the whole question of the infrastructure in
that particular area that just doesn’t support some kind of development
of that magnitude. I’m not supporting that resolution this evening.
Thank you.
[24] The verbatim minutes note that
the resolution to approve the proposed rezoning of the subject property was
defeated 7-0.
[25] While the Commission tends to
defer to the actions of the elected Council on such matters, that is not an
absolute, and in this instance the Commission is presented with significant
expert testimony contrary to the Council’s decision. The Official Plan
permits the rezoning of the subject property, the City’s planning staff and
Planning Board recommended approval of the rezoning, and the Company’s
expert witness is of the opinion that the project proposed for the subject
property represents sound planning. The Commission recognizes Council is
not bound to follow staff or Planning Board advice, however, the Commission
cannot satisfy itself that sufficient reasons have been offered to reject
that advice in this case.
[26] The Commission finds that the
evidence, in general, is supportive of a rezoning of the subject property.
While the two Councillors do raise valid concerns, these concerns would have
been more persuasive if the requested rezoning also required an amendment to
the Official Plan by way of a change in the identification of the subject
property on the City’s Future Land Use Map. However, this was not the
case. The rezoning applied for by the Company was already contemplated some
nine years ago by the City’s Official Plan.
[27] The timing for a rezoning
appears to be appropriate at the present time as the subject property is
currently experiencing problems with its sewer system and sewer upgrades
would be necessary for it to remain in use as a mobile home park. Such an
upgrade would greatly disrupt the existing mobile home park as testimony
before the Commission indicates some lines run under existing mobile homes,
thus requiring those homes to be moved to permit the work to be completed.
[28] The testimony of Phil Wood, an
expert witness in urban planning, satisfies the Commission that a rezoning
of the subject property to Medium Density Residential (R3) is consistent
with sound planning principles.
[29] The testimony of Mr. Poole
satisfies the Commission that the development proposed for the subject
property will not result in a significant increase in traffic flow and the
development provides more parking than the minimum required under the Bylaw.
[30] The Commission hereby allows
the appeal and orders the City to rezone the subject property to Medium
Density Residential (R3), subject to a requirement that the owner of parcel
numbers 274480 and 274720 enter into a development agreement pursuant to
section 4.60 of the City of Charlottetown Zoning and Development Bylaw.
4. Disposition
[31] An Order allowing
the appeal and requiring the rezoning of parcel numbers 274480 and 274720 to
Medium Density Residential (R3), subject to a development agreement, will
therefore be issued. Order WHEREAS AND WHEREAS
AND WHEREAS NOW
THEREFORE IT IS
ORDERED THAT 1. The appeal is allowed. 2. The Respondent City of
Charlottetown rezone parcel numbers 274480 and 274720 to Medium Density
Residential (R3), subject to a requirement that the owner of said
parcels enter into a development agreement pursuant to section 4.60 of
the City of Charlottetown Zoning and Development Bylaw. DATED
at Charlottetown, Prince Edward Island, this
20th day of June, 2008. BY THE COMMISSION: Maurice Rodgerson, Chair John Broderick, Commissioner Anne Petley, Commissioner NOTICE Section 12 of the
Island
Regulatory and Appeals Commission Act
reads as follows 12. The Commission may, in its
absolute discretion, review, rescind or vary any order or decision made by
it or rehear any application before deciding it. Parties to this proceeding seeking
a review of the Commission's decision or order in this matter may do so by filing with the
Commission, at the earliest date, a written Request for Review, which clearly
states the reasons for the review and the nature of the relief sought. Sections 13.(1) and 13(2) of the
Act
provide as follows: 13.(1)
An appeal lies from a decision or order of the Commission to the Appeal Division of the
Supreme Court upon a question of law or jurisdiction. (2) The appeal shall be made by filing a notice of appeal in the Supreme
Court within twenty days after the decision or order appealed from and the Civil Procedure
Rules respecting appeals apply with the necessary changes.
Order LA08-04
John Broderick, Commissioner
Anne Petley, Commissioner
Appearances & Witnesses
1. For
the Appellant L & A MacEachern Holdings Ltd.
J. Gordon MacKay, Q.C.
Ken MacEachern
William Chandler
Phil Wood
David W. Hooley, Q.C.
Don Poole
1. Introduction
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