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IN THE MATTER of
an appeal by Queens County Condominium Corporation No. 40, of a decision by the City of
Charlottetown, dated November 27, 2017.
BEFORE THE COMMISSION
ON Wednesday, July 11, 2018.
Scott MacKenzie, Q.C. Chair
Jean Tingley, Commissioner
John Broderick, Commissioner
Appearances & Witnesses
Reasons for Order
Appearances & Witnesses
1. For the Appellant, Queens
County Condominium Corporation No. 40.
Matthew J.W. Bradley, Carr Stevenson &
2. For the Respondent, City of
W. Hooley, Q.C., Cox & Palmer
Charity L. Hogan
3. For the
Developer, APM Construction Services
Reasons for Order
The Island Regulatory Appeals Commission (the
"Commission") is satisfied that while there were some
technical deficiencies, the decision of the City of Charlottetown (the
"City") to approve a site-specific bylaw amendment for civic addresses 55
and 59 Richmond Street in Charlottetown (the "Property") was made in
accordance with the provisions of the Zoning and Subdivision Bylaw, the
Official Plan, and was based on sound planning principles.
The appeal by the Queens County Condominium Corporation No. 40
("Condo Corp") is, therefore, denied and the decision of the City is
By agreement of the parties, the
hearing began on May 16, 2018 and ended on May 18, 2018. At the outset, the
developer, APM Construction Services ("APM"), raised a preliminary matter
related to a possible conflict of interest arising out of the Chair's past
representation of the developer of the Rochford Condominium building (the
"Rochford Condominium"). Condo Corp represents current condominium owners in
the Rochford Condominium, which is located at 41 Richmond Street in
Charlottetown and adjacent to the Property.
The Chair was appointed to the
Commission on April 28, 2014. He
ceased practising law at that time. While in practice, the Chair acted as
legal counsel for the corporation that was the developer of the Rochford
Condominium and acted as legal counsel on the incorporation of Condo Corp.
The Chair also acted as legal counsel for the developer and Condo Corp on
the sale of condominium units. The Chair did not act as legal counsel on
behalf of any condominium owners on the purchase of their units. Since his
appointment, the Chair has not acted for, or provided advice to, Condo Corp
or any of its condominium owners.
4. The Commission determined that there
was no conflict of interest - real or perceived
- on the part of the Chair
and all parties confirmed at the hearing that they did not have any
objections on the ground of conflict of interest and consented to the
participation of the Chair.
APM wants to develop a four-storey,
23-unit apartment dwelling on the Property (the "Development"). Condo Corp
opposes the Development. The issue in this appeal is the site-specific
amendment made by Council to the Zoning and Development Bylaw (the "Bylaw")
on November 27, 2017 (the "Amendment"). The Amendment reads as follows:
For a site specific bylaw amendment
to the Downtown Neighbourhood (DN) Zone (including a minor variance to
reduce the minimum frontage from 82 feet to 74.5 feet, a major variance to
reduce the minimum grade level height from 13 feet to 9.5 feet) to permit a
four storey, 23-unit apartment dwelling on the consolidated property at 55
Street (PID #339911) and 59 Richmond Street (PID#339929).1
On December 15, 2017, Condo Corp
filed a notice of appeal under section 28 of the
alleging a number of errors3.
There is no dispute amongst the parties that the Commission has
jurisdiction to hear the appeal.
The decision by the City on November
27, 2017 was the culmination of a process initiated by APM on December 19,
2016 when it filed the first of two applications seeking a site-specific
amendment for the Property. Although there are some differences between the
two applications, APM, at all times, sought to develop a four-storey,
23-unit apartment building on the Property. With the consent of all parties,
the City's record before the Commission included materials related to both
First Application filed December 19,
APM's initial application proceeded
through various stages of the City's planning process before it was
withdrawn by APM in July 2017. It was the subject of four reports by City
staff to planning board4, was
discussed at planning board on four occasions5, and came before Council six times6,including at a public meeting on February 28, 2017.7
Condo Corp raised its initial
concerns with the Development on March 5, 2017. In correspondence to the
City, Daniel Hurnick ("Hurnick") cited issues with parking availability,
space for waste/recycling bins, and the proximity between the Rochford
Condominium and the Development.8
On March 13, 2017, planning board
recommended that Council approve APM's amendment request.9
Council deferred, citing concerns over APM's request to provide cash
in lieu of on-site parking.10
made some modifications to its proposal prior to Council's meeting on April
10, 2017, including that APM would enter into a parking lease for thirteen
parking spaces with the Charlottetown Area Development Corporation ("CADC")
for a ten-year term.11
again deferred consideration of the application pending receipt of an
agreement for the thirteen parking spaces and to receive a report on
rectifying the balcony placement next to the Rochford Condominium.12
Second Application filed July 17,
On May 2, 2017, the City contacted
APM and advised that the frontage used by APM on its application was in
error and that the actual street frontage of the Property was less than
originally stated. The City
advised that a variance may be required to reduce the required street
frontage of the Property and, further, that the application may be required
to undergo a new public notification and meeting process.13
On July 10, 2017, Council approved APM's request to withdraw and
re-submit its application.14
On July 17, 2017, APM filed its
second application with the City.15
The application included a request for a minor variance to reflect
the actual (reduced) street frontage of the Property. On July 28, 2018, City
staff recommended to planning board that it recommend to Council that the
application proceed to a public meeting.16
On August 14, 2017, Council refused
APM's request to proceed to a public consultation.17
APM filed a notice of appeal with the Commission.18
The Commission reviewed the appeal documents and the record of the
City. The record disclosed that
the City had erred and failed to follow the proper procedure required under
the Bylaw. Commission staff were
instructed to meet with APM and the City's solicitor.
Subsequent to that meeting, on October 10, 2017 the City rescinded
its decision of August 14, 2017 and decided to proceed with the public
As a result, APM
did not proceed with its appeal.
On October 19, 2017, the City issued
notice of a public meeting scheduled for November 2, 2017.20
In response to the notice, a number
of members of the public, including some of the witnesses for Condo Corp,
filed written correspondence with the City both for and against the
was filed with the Commission as part of the City's record.22
17. A public
meeting was held on November 2, 2017. Tim Banks ("Banks") gave a
presentation on behalf of APM outlining the Development. Banks
answered questions from Council and members of the public.23
Hurnick gave a presentation on behalf of Condo Corp in response to
Both presentations were
filed with the Commission as part of the City's record. Both Hurnick and
Banks also expanded upon their presentations during their testimony at the
On November 14, 2017, the Amendment
passed first and second reading.25
On November 27, 2017, the Amendment passed third reading.26
19. Condo Corp raised a number of
arguments in its appeal. The Commission has distilled these arguments
in light of the evidence at the hearing.
Condo Corp makes three primary submissions:
Did the City fail to
follow the proper procedure as set out in its Bylaw and err by
issuing notice of a public meeting before APM obtained conditional
design review approval?
Did the City err by
failing to follow the advice of its planning staff?
c. Is the decision of the City
to permit the Development consistent with good or sound planning
A. Design Review Standards Procedure
Condo Corp argued that the City
erred in failing to obtain conditional design review approval before
issuing notice of the November 2, 2017 public meeting. Condo Corp
contends that this approval is required under section 9.10.1 of the
Bylaw. The Commission agrees, but finds that this technical error was
not material and did not result in any unfairness. The deficiency was
also not of sufficient weight to affect the ultimate outcome of the
Section 9 of the Bylaw sets out
design review standards that apply to the 500 Lot Area of the City (the
"Area"), including the Downtown Neighbourhood Zone where the Property is
located. Witnesses for the City explained to the Commission that the
design review process was created to recognize the unique history and
structure of the Area and to ensure that future development is
compatible with its special character. In essence, the design review
process provides an additional level of oversight, including a review by
the heritage board for the City and an external architect.
The design reviewer considers a
proposed building's exterior appearance with reference to the design
standards in the Bylaw and the 500 Lot Standards and Guidelines (the "Guidelines").27
the City, the reviewer provides comments and indicates if the proposal
meets the design standards and the Guidelines.
The reviewer does not re-design the building.
It was not contested that the
Development, being a new construction project with more than four units,
was subject to the design review process.28
It was also not strenuously contested that the Development was a
Substantive applications are subject to "all applicable provisions" of
the Bylaw, including the design review standards."30
The application by APM sought to
increase the maximum storey height in the Bylaw (from three storeys to
four storeys),31 which triggered a public consultation process (a public
The Commission heard testimony that, where section 4.79 of the Bylaw is engaged, the
City follows the process set out in section 4.29 of the Bylaw.33
The process was described by the City as being "rigorous."
25. Section 9.10.1.b of the Bylaw
states that substantive applications "must first receive conditional
approval from the external design reviewer prior to public notification
being sent on any other matters."
26. The City argues that section
9.10 of the Bylaw was not engaged by APM's application because it only
applies to applications where there is no requirement for a public
meeting; that is, the section creates a public consultation process
where there otherwise would be none. The Commission disagrees with the
City's position. Section 9.10 of the Bylaw distinguishes between public
notification and public consultation. Section 9.10.1 applies to
applications that require public notification under the Bylaw. It
clearly provides that conditional design review must be completed before
that notification is issued. Section 9.10.2 goes on to add an additional
and more onerous public consultation process in two specific instances,
neither of which is applicable in this case.
27. The text chosen by the City in
section 9.10.1 of the Bylaw requires conditional design review to be
completed before notification is issued of the public meeting
contemplated under section 4.29 of the Bylaw. Conditional approval by a
design reviewer was not obtained before the City issued its notice of
the public meeting in October 2017. As the record shows, the design
review process was not initiated by the City until March 2018.34
This was an error.
28. However, as counsel for the City
noted in his closing submissions, nothing turns on this error.
29. It is well-established that the
Commission hears appeals by way of a hearing de novo. Given that the
City erred in failing to obtain conditional approval from a design
reviewer before issuing notice of the public meeting, the Commission can
and has reviewed APM's submission to the design reviewer and the
review, the Commission finds that approval was ultimately granted.36
In the circumstances of this case, the City's error was,
therefore, a technical one.
30. The plans submitted for design
review were filed with the Commission by APM.37
The development submitted for design review appears to the
Commission to be substantially similar to that put forward at the public
neither development has patios on the ground floor, or balconies on the
second floor, adjacent to the Rochford Condominium.39
The Commission also notes that
the recommendations from the design reviewer do not speak to Condo
Corp's main concerns regarding proximity, parking, or density. The
design reviewer recommended changes to the building entrance, including
materials and detailing.40
These changes were made by APM and accepted by the design reviewer.41
In conclusion, the Commission is
not persuaded that a different result would have followed had design
review been completed before the City provided notice of the public
meeting. The plans submitted by APM and approved by the design reviewer
are substantially similar to the plans presented by APM at the public
meeting. The Commission does not accept Condo Corp's argument that the
public did not know at the public meeting what APM was proposing to
build. The public meeting was attended by members of Condo Corp.
Hurnick, for example, made a rebuttal presentation. Further, the
modifications suggested by the design reviewer (and, ultimately,
accepted by APM) did not relate to the complaints raised by Condo Corp
at the public meeting or the hearing of the appeal. The weight of the
evidence before the Commission did not demonstrate that this error was
material to the application or resulted in any prejudice to Condo Corp
or the public.
B. Failure to Follow Advice from Planning Staff
Condo Corp argues that the City
did not follow the advice of its planning staff who recommended approval
of the Amendment "subject to receipt of final pinned survey plans,
design review approval, and the signing of a development agreement."
Condo Corp relies on the text of the Council resolution on November 14,
201742 and argues that the text of the Bylaw should have been amended to
include these conditions. Condo Corp contends that this error means that
a future developer - not necessarily APM - is now able to, as-of-right,
develop a four-storey, 23-unit apartment dwelling on the Property.
The City submitted that these
requirements were conditions subsequent upon approval of the Amendment
and not conditions forming part of the Amendment itself. In other words,
the conditions would have to be fulfilled by APM or any other developers
at further stages in the development process, culminating with a
building permit issued upon conditions included in a development
agreement. The City noted that the resolution filed in the record was an
attachment to the draft development agreement.43
The Commission heard testimony that the conditions are intended
to be enforced through the development agreement, and the Commission was
directed to sections 4.62.7 and 4.62.9 of the Bylaw, which provide that
Council may require a developer to execute a development agreement.
The Commission does not accept
Condo Corp's argument that the conditions were intended to form part of
the amended Bylaw. The interpretation put forward by counsel for Condo
Corp ignores the remaining text of the resolution, which authorizes the
Mayor and CEO "to execute standard contracts/agreements to implement
must also be given to this language. When the resolution is read in its
entirety and considered in light of the development process as a whole,
the Commission finds that Council intended for the conditions to be
dealt with and incorporated into a development agreement between the
City and APM.
Counsel for Condo Corp is
correct that the Amendment permits a future developer (and not just APM)
to develop a four-storey, 23-unit apartment dwelling on the Property.
However, any new developer would still be required to provide survey
plans, obtain design review approval, and sign a development agreement
if the Development were to change in any material respect.
Finally, as will be discussed below, as-of-right developments are
still subject to the Bylaw, the Official Plan, and sound planning
C. Sound Planning Principles
Condo Corp argues that the
Development does not meet sound planning principles. Condo Corp suggests
that these principles require that the "best" development for the
Property be approved. Condo Corp submits that the City did not consider
moving the building away from the property line next to the Rochford
Condominium (and closer to the parking lot on the other side of the
Property) and, as a result, sound planning principles have not been
applied. Condo Corp argues that this option was never explored before
Council passed the Amendment.
Witnesses for Condo Corp raised
a number of concerns before the Commission. The Commission finds that
there were three primary areas of concern:
a.parking, including the loss of existing parking spaces
and the impact of additional vehicles in the neighbourhood;
b.the proximity of the Development to the Rochford
Condominium and its impact on the privacy, security, and enjoyment of
personal space by condominium residents; and
c. increased density in the neighbourhood and its
resulting impact on the surrounding area.
I. General Principles
39. It is well-settled that the
Commission, when exercising its appellate authority under the
Planning Act, is entitled to assess a decision of Council on the basis of sound
Witnesses for the City and APM
repeatedly emphasized that the Property could be developed "as of right"
to the property line bordering the Richmond Condominium.
The text of the Bylaw certainly recognizes this possibility.
However, it bears repeating that a right to development is not
absolute. As discussed in Pine Cone Developments Inc. v. City of
Charlottetown,45 a development must adhere not only to the technical
requirements of the Bylaw, but also to the Official Plan and sound
41. The Commission is generally
reluctant to interfere with a decision of a municipality on the basis
that it is not consistent with sound planning principles, where that
decision is supported by objective and reliable evidence from planning
professionals confirming that the decision is based on the
Planning Act, the applicable official plan and bylaw, and sound planning principles.
It is incumbent upon an appellant to bring forward objective and
reliable evidence to the contrary. In other words, where sound planning
principles are at issue, it is prudent to call evidence from a planning
professional or a person with experience in making planning-related
decisions. More than the subjective concerns expressed by neighbouring
property owners is required.
42. Each of the neighbouring
property owners appearing before the Commission sincerely and succinctly
set out their real concerns with respect to how the Development, in
their opinion, would negatively effect the enjoyment of their own
condominiums and would change the neighbourhood.
However, when it comes to developments, assertions or
speculations from neighbours are not sufficient to overcome objective
and reliable evidence. While consultation with - and input from - the
public is an important element of the planning process, it cannot be
construed as a veto on the development of properties owned by others.
43. The City called two professional
planners at the hearing, Jesse Morton ("Morton") and Alex Forbes
("Forbes"). Morton was the City planner responsible for both
applications filed by APM. He holds his Masters degree in planning and
is a licensed professional planner. Morton's work was overseen by
Forbes, who is the Manager of Planning for the City. Forbes has 26 years
of planning experience and the Commission accepts that he is an expert
in the field of planning and land use.
Condo Corp called four witnesses
at the hearing. All were residents of the Rochford Condominium and
without any professional planning experience. The concerns raised by
those witnesses, although sincere, did not have the ingredients
necessary to overcome the testimony of Morton and Forbes. Objective and
reliable evidence was lacking from Condo Corp. The Commission accepts
the evidence of the professional planners, Forbes and Morton, that the
Development is based on sound planning principles.
The Commission heard and
understood the concerns expressed by the residents of the Rochford
Condominium. However, as a quasi-judicial tribunal the Commission is
obligated to exercise its authority in accordance with the law and the
evidence. In this appeal,
the weight of the evidence supports the finding that the Development
based on sound planning principles.
The "Best" Development
46. Witnesses for Condo Corp were
consistent in stating that they are not opposed to development
Rather, it was
just "this development" that was objectionable. Condo Corp argued that
the City's decision failed to meet sound planning principles because the
Development was not the "best development" for the Property.
47. Sound planning principles did
not require the City or APM to consider every possible development
option for the Property. The record reveals that the APM engaged in
meaningful dialogue with the City and made adjustments to its proposal
to respond to concerns shared by the City and others.47
What one may view as the "best"
development for her neighbour's property cannot be the standard against
which planning-related decisions are made by a municipality. Such an
approach would have the effect of frustrating development, maintaining
the status quo, and diminishing the rights associated with land
48. The soundness of a planning
decision is measured by the Commission against the principles recognized
within the field of land use planning, the Official Plan of a
municipality, the applicable bylaws, and any relevant federal and
provincial laws. When assessed against that objective standard, the
Commission is satisfied that the City's decision to pass the Amendment
was guided by sound planning principles.
APM proposes to enter into a
long-term parking lease with CADC for parking spaces in the Pownal
Parkade as opposed to providing on-site parking or cash in lieu of
parking. This is permissible under the Bylaw. Condo Corp argues that the
Development is inappropriate because there is already insufficient
parking in the neighbourhood. Condo Corp argued that the Development
requires parking for 23 units and guests and would displace an
unapproved parking lot on the Property that serves approximately 16
vehicles. Condo Corp also argued that the City erred in approving the
Amendment because APM has not filed a parking lease with the City as
required by section 4.44.6 of the Bylaw.
The Commission is not persuaded
that the proposed off-site parking is contrary to sound planning
principles. Parking is a concern in many municipalities and is
specifically addressed by the City in the Bylaw and Official Plan. The
existence of an unapproved parking lot on the Property is not a relevant
consideration. Unapproved parking is liable to enforcement under the
Bylaw, and the City has discretion over whether to pursue a remedy or
not. The existence of an unapproved use today is therefore not
guaranteed tomorrow. It cannot be relied upon to defeat a proposal for
parking that actually satisfies the terms of the Bylaw. The Bylaw
specifically provides for off-site parking in the Area and Morton gave
evidence that requests for off-site parking are not uncommon.
51. The absence of a parking lease,
at this stage in the overall development, is not unusual. The Bylaw
provides that a development officer, with approval from Council, may
accept off-site parking in the Area if the parking is within 240 metres
(787.4 feet) of the subject property and the developer has filed a lease
that is at least ten years in length with the City. The record included
correspondence from CADC to APM dated June 16, 2017, which stated that
CADC is prepared to enter into a parking agreement for 13 spaces at the
Pownal Parkade in the event that APM "is able to obtain a development
The evidence before
the Commission also confirmed that the distance from the Property to the
Pownal Parkade is approximately 370 feet (by sidewalk).50
The Commission accepts the City's position that it intends the
lease requirement to form part of the development agreement with APM.
Support for this position is found in the resolution passed by Council
on November 14, 2017,51 which approved APM's request to "enter into a 10
year off-lot parking agreement with CADC for 12 parking spaces + 1
accessible parking space at the Pownal Parkade (100 Pownal Street)."
52. This technical argument by Condo
Corp also overlooks the substance of this appeal. The decision under
review by the Commission related to a site-specific bylaw amendment. The
argument may have been more persuasive had the application related to a
development permit. At that latter stage in the development process, the
failure of APM to file a lease with the City could prove fatal (for
failure to conform to the Bylaw).52
However, the development process operates on a continuum and
involves a series of municipal decisions. To require a long-term
contract to be signed and filed with the City before the site-specific
bylaw amendment was even approved would be inconsistent with commercial
reality and result in an illogical interpretation of the Bylaw.
Absent the amendment, the proposal would have to change and, with
it, the parking requirement.
Proximity to the Rochford Condominium
53. Witnesses for the Condo Corp
testified that they had concerns about the proximity of the Development
to the Rochford Condominium. They stated that there were possible safety
concerns, including the possibility of accessing balconies on the
Rochford Condominium from the third and fourth floor balconies on the
Development. Some witnesses also testified that the balconies were so
close together that the Development would reduce their privacy and the
enjoyment of their condominium units. It is unfortunate that the first
APM plan showed that the proposed patios and balconies on the south side
of the Property would be built within inches of the existing patios and
balconies of the east side of the Rochford Condo.
The City, for its part, was alive to these concerns from the
beginning of the initial application process in December 2016.
Planning staff specifically considered the placement of the
For example, the
location of the balconies was addressed in the report prepared by Morton
on November 3, 2017 for planning board.54
APM also made efforts to address some the concerns. APM removed
patios and balconies from the bottom two floors of the Development.55
Ernie MacAulay is a resident of
the Rochford Condominium. His street-level unit is adjacent to the
Property. He testified that his patio extends 22 inches to the property
line. The presentation
prepared by APM suggests that the Development is five feet from the
property line, with the balconies extending into that five-foot space.
In his report to planning board on November 3, 2017, Morton stated that
the third and fourth floor balconies would be set back one foot from the
property line. He also noted that the Rochford Condominium incorporates
a "step-back" after the second storey and estimated the distance between
the adjacent third storey balconies to be approximately seven feet and
the fourth storey balconies approximately 10.5 feet.56
It is not possible to determine the precise distance between the
balconies of the Rochford Condominium and the Development based upon the
record; however, the Commission accepts the best evidence available at
the hearing and that was the estimate provided by Morton. He stated that
there would be approximately seven feet between the third storey
balconies and approximately 10.5 feet between the fourth storey
hearing Banks stated that APM would consider removing the balconies from
the third floor of the Development.
Banks stated that he would have his architects review the
distances between the third floor balconies and the Rochford Condominium
balconies and they could meet with the Condo Corp's advisors, Coles
Associates, to work out a solution.
This could include removing the third floor balconies or possibly
putting screens on the balconies, if advisable.
A final determination on the balconies will be dealt with by the
City during the further stages of the development process.
The Commission is not persuaded
that the balconies proposed for the Development offend sound planning
principles. While they may be closer to the Rochford Condominium than
its residents may have anticipated or enjoyed in the past, this does not
mean that the balconies run counter to sound planning. Any asserted
rights of privacy or quiet enjoyment are also beyond the statutory
jurisdiction of the Commission. On the record and testimony before it,
the Commission is being asked to speculate about the existence and
likelihood of certain health and safety concerns. The Commission,
however, was not provided with any evidence that the Development does
not meet requirements of the National Building Code, the Fire Prevention
Bylaw, or any other applicable law. Condo Corp also chose not call any
independent evidence on the subjects of health or safety. There was no
testimony from any police, fire, or security organization.
The Commission cannot, without more, find that the Development
does not meet sound planning principles because of its proximity to the
Rochford Condominium. As noted above, the Bylaw itself expressly
contemplated the possibility of a diminished setback for the Development
because the Rochford Condominium had previously been granted a zero
setback by the City.
There was a great deal of
discussion, especially by APM, that the Rochford Condominium had
previously been granted a zero setback from its eastern boundary by the
City. Both Forbes and Morton
gave evidence that, under the Bylaw, this would allow the owner of the
Property to also have a zero setback next to the Rochford Condominium.
In short, under the Bylaw a zero setback granted to one property
owner conveys the same zero setback rights to the adjoining property
owner. However, in any
development, the Bylaw is merely the starting point.
As stated by both Morton and Forbes, when approving a
development, a holistic approach must be taken.
This requires the development to meet the specific requirements
of the Bylaw, be consistent with the Official Plan, and be consistent
with sound planning principles.
The zero setback situation, as noted above, is not one which
grants an as-of-right development using a zero setback.
The development must meet all of the other requirements of the
Bylaw, be consistent with the Official Plan, and be consistent with
sound planning principles.
Condo Corp argued that the
Development does not fit the Property. It noted that a variance was
required to reduce the street frontage, and that planning staff failed
to address the frontage issue in its final report to planning board.
Condo Corp noted that the density of the Property was increased from
three units to 23 units. Although a minor variance was required to
reduce the street frontage from 82 feet to 74.5 feet, the impact was
significant because it allowed the density to increase by 20 units.
Condo Corp contends that the Development is too large for the Property
and therefore does not meet sound planning principles.
Both Morton and Forbes spoke
about the City's goal of increasing density in the context of sound
planning principles. In his report to planning board on November 3,
2017, Morton commented on the massing and density of the Development. He
relied on the Official Plan and its stated objectives.58
The Commission finds that the City was alive to the increased
density that would accompany the Development and considered this reality
in light of the Official Plan. Absent any objective evidence to the
contrary, the Commission cannot accept that increasing the density of
the Property is contrary to sound planning principles.
This conclusion is strongly
supported by the testimony of Morton and Forbes. For his part, Morton
highlighted the importance of "massing" for buildings located in the
downtown. He also emphasized that a design must be compatible with the
surrounding area. Morton added that construction of the Rochford
Condominium actually "transformed" the massing in the neighbourhood.
Morton further explained that the Development will help with the
transition from the Rochford Condominium to other buildings on Richmond
Street and complement the existing streetscape. These assessments were
echoed by Forbes, who advised the Commission that the Rochford
Condominium had "set the tone" for the neighbourhood and increased the
density in the surrounding area.
Conclusion on Sound Planning Principles
The Commission does not accept
Condo Corp's submission that the Development does not meet sound
planning principles. The record and evidence before the Commission
reveals a thorough development process was undertaken by the City with
input from not only the public, but also professionals in the fields of
land use planning and architectural design. The Development was also
considered and reconsidered on a number of occasions by both planning
board and Council. The Commission finds that the Development meets the
requirements of the Bylaw, Official Plan, and is consistent with sound
The appeal is denied and the
decision of the City is hereby confirmed. While Condo Corp identified
some technical deficiencies, the Commission, after reviewing the
record as a whole, including the testimony from all of the witnesses
at the hearing, is satisfied that the outcome - namely the Amendment -
was a sound planning decision. The Commission encourages all involved
- the City, APM and Condo Corp - to continue their dialogue as the
Development moves forward. To date, these constructive exchanges have
improved the Development to the benefit of the City as a whole.
1 Exhibit R1, Tab 31. See also Notice of Appeal, Exhibit A1.
RSPEI 1988, c P-8.
3 Exhibit A1.
4 Exhibit R3, Tabs 6 (February 1, 2017), 21 (March 2,
2017) and 28 (March 31, 2017); Exhibit R4, Tab 40 (April 26, 2017).
Exhibit R3, Tabs 5 (Heritage Committee regarding demolition, January 31,
2017), 22 (March 6, 2017) and 30 (April 3, 2017); Exhibit R4 Tabs 41 (May 1,
2017) and 54 (July 4, 2017).
6 Exhibit R3, Tabs 9 (February 14, 2017), 19 (February 28, 2017), 24 (March
13, 2017) and 35 (April 10, 2017); Exhibit R4, Tabs 43 (for information
purposes, May 8, 2017) and 55 (July 10, 2017)
7 Exhibit R3,
8 Exhibit R3, Tab 20(e). Hurnick raised additional
concerns regarding proximity, privacy, and security in correspondence
dated April 5, 2017. Exhibit R3, Tab 28.
9 Exhibit R3, Tab
23. The planning board motion in support of this recommendation is dated
March 6, 2017 and found at Exhibit R3, Tab 22;
10 Exhibt R3,
Tabs 23, 24 and 25.
11 Exhibit R3, Tabs, 32, 34, and 35.
12 Exhibit R3, Tabs 35 and 36.
13 Exhibit R4, Tab
14 Exhibit R4, Tabs 55 and 56.
R4, Tab 60.
16 Exhibit R4, Tab 61. Planning board agreed
with the staff recommendation. See Exhibit R4, Tabs 62 and 64.
Exhibit R4, Tabs 65, 66 and 68.
18 Commission Docket
19 Exhibit R1, Tab 3.
20 Exhibit R1, Tab 5. See also
21 City staff advised Council that as of
November 2, 2017, 38 letters were received: 32 in favour and 6 against.
Exhibit R1, Tab 20.
22 Exhibit R1, Tab 5.
Exhibit R1, Tab 24; Exhibit D1.
24 Exhibit A2.
Exhibit R1, Tab 24.
26 Exhbit R1, Tab 31.
See also, Bylaw, ss. 9.8-9.9.
28 Bylaw, s.9.3.12.
30 Bylaw, s.9.8.1.
32 Bylaw, s.4.29.
33 As per the
34 Exhibit D2.
36 Exhibit D4. See also, the Heritage Board
Resolution dated April 19, 2018. Exhibit D5.
37 Exhibit D3.
38 Exhibit R2.
39 Exhibit R1, Tabs 1; Exhibit R2
(suppliementary record); Exhibit D1; Exhibit D3.
41 Exhibit D4.
42 Exhibit R1, Tab 25;
43 Exhibit R1, Tab 35.
44 Exhibit R1, Tab 35.
46 La17-08. See also LA12-01.
47 See, for example, Exhibit R1, Tab 17.
48 Exhibit R4, Tab 62.
49 Exhibit R4, Tab 45.
Exhibit R4, Tab 61.
51 Exhibit R1, Tab 25.
52 Bylaw, s.4.54.6.
53 Exhibit R4, Tab 61.
Exhibit R1, Tab 21.
55 Exhibit R1, Tab 17.
56 Exhibit R1, Tab 21.
57 Exhibit R1, Tab 21.
R1, Tab 21 referencing the Official Plan at section 3.2, objectives 1 and
the Appellant Queens County Condominium Corporation No. 40 appealed a November
27, 2017 decision of the City of Charlottetown to approve a site-specific
bylaw amendment for 55 and 59 Richmond Street, Charlottetown;
the Commission heard the appeal at public hearings conducted in
Charlottetown on May 16, 17, and 18, 2018, after due public notice and
suitable scheduling for the parties;
the Commission has issued its findings in this matter in
accordance with the Reasons for Order issued with this Order;
pursuant to the
Island Regulatory and Appeals Commission Act and the
The appeal is
denied and the decision of the City is hereby confirmed.
DATED at Charlottetown, Prince
Edward Island, Wednesday, July 11, 2018.
BY THE COMMISSION:
J. Scott MacKenzie, Q.C., Chair
Jean Tingley, Commissioner
John Broderick, Commissioner
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
13.(1) An appeal lies
from a decision or order of the Commission to the Court of Appeal upon a question of law or jurisdiction.
appeal shall be made by filing a notice of appeal in the Court of Appeal within twenty
days after the decision or order appealed from and the rules of court respecting appeals apply with the necessary changes.
NOTICE: IRAC File Retention
In accordance with the
Commission's Records Retention and Disposition Schedule, the material
contained in the official file regarding this matter will be retained by the
Commission for a period of 2 years.