Click here for a PDF version of this Order.
Docket LA19-009
Order LA20-05
IN THE MATTER of
an appeal by Brown's Volkswagen et. al. of a
decision of the City of Charlottetown dated June 21, 2019 to permit an
Asphalt, Aggregate, and Concrete Plant and to insert a definition for that
use under Appendix "A" Definitions
BEFORE THE COMMISSION
ON Tuesday, December 15, 2020.
J.
Scott MacKenzie, Q.C. Chair
M. Douglas Clow, Vice-Chair
Jean Tingley, Commissioner
Order
Contents
Appearances & Witnesses
REASONS FOR
ORDER
PROCEDURAL HISTORY
BACKGROUND
Arguments of the Appellants
Arguments of the City
DECISION
CONCLUSION
Order
Appearances & Witnesses
1. For the Appellants,
Brown's Volkswagon et. al.
Counsel:
Nicole M. McKenna, Carr, Stevenson & MacKay
Witnesses:
Jamie Brown
Tim Kember
Warren Phillips
Cathy Feener
2. For the Respondent, City of
Charlottetown
Counsel:
David W. Hooley, Q.C.,
Cox & Palmer
Melanie McKenna, Cox & Palmer
Witnesses:
Alex
Forbes
Robert Zilke
Laurel Palmer Thompson
Reasons for Order
REASONS FOR ORDER
1. This is an appeal of a June 21, 2019 decision by the City of
Charlottetown (the "City") to enact an amendment to its Zoning and
Development Bylaw (the "Bylaw") to permit a use for an Asphalt, Aggregate,
and Concrete Plant and to insert a definition for that use under Appendix "A" (the
"Amendment").1
In
practical terms, the Amendment would result in a permitted use for asphalt,
aggregate, and concrete plants in the M-2 (Heavy Industrial) zone of the
City.
PROCEDURAL HISTORY
2. This appeal was filed on July 9, 2019 by a number of businesses and
residents of the Sherwood Road area.2
The Appellants requested reconsideration by the City which, pursuant
to the Bylaw, required the appeal to be held in abeyance by the Commission.
The City declined to reconsider its decision.
The City later filed the record with the Commission on August 5,
2019.
3. Following receipt of the record, the Appellants raised concerns with
the extent of disclosure by the City. Following discussions between the
Commission and the parties regarding disclosure, the Commission determined
that a preliminary hearing was necessary to determine what additional
documentation, if any, the City was required to provide the Appellants. That
preliminary hearing was held on October 18, 2019 and the Commission issued
an order on November 28, 2019, ordering additional disclosure by the City. Later, on December 12, 2019, the City filed a supplementary record
with the Commission.
4. A number of hearing dates were offered to the parties by the
Commission.3 Following
considerable back and forth with legal counsel regarding availability, and
after the onset of the global COVID pandemic, the Commission held a public
hearing - with COVID-19 restrictions in place - over the course of two and
one half days on June 24-26, 2020.4
BACKGROUND
5. The Sherwood Road area of the City is located within the M-2 zone and
has a recent history of efforts to develop an asphalt plant within its
boundaries. Some - but not all - of this history is relevant to this appeal.
However, it is important to note that this history, including
significant public opposition to a previous application for an asphalt plant
on the Sherwood Road, was well known to the City before the impugned
Amendment was enacted.5
6. In February 2019, a developer advised a City planner, Laurel Palmer
Thompson ("Thompson"), that he wanted to submit an application to develop an
asphalt plant at 330 Sherwood Road.6
Thompson told the City's manager of planning, Alex Forbes ("Forbes"),
who advised her not to issue a permit. The developer did not file an
application.
7.
Forbes reviewed the Bylaw and decided that Council should provide
direction to staff with respect to asphalt plants within the City.7
Forbes directed a different City planner, Robert Zilke ("Zilke"), to
prepare the Amendment, which was to be included with a series of other Bylaw
amendments already underway.8
8. On March 4, 2019, the Amendment was introduced at a meeting of
Planning Board. The report from planning staff was prepared by Zilke and
reviewed by Forbes. The report stated that the planning department had
received "either inquiries or applications" for two different land uses that
were not specifically defined in the Bylaw, including an asphalt plant. With
respect to the asphalt plant, the report stated in part:
Asphalt, Aggregate, Concrete plant
is proposed as both a definition and permitted use in the Heavy Industrial
(M-2) Zone. Historically, the City has approved such a use through the
Discretionary use approval process that has been removed from the existing
By-law. Due to substantial land use impacts this use can have on adjacent
properties (i.e. noise, odour, dust), staff is bringing this type of land
use forward to Council for direction to determine if it should be included
as a permitted use in the Heavy Industrial (M-2) Zone ... .9
9. The Amendment was discussed at Planning Board, and Councillor Rivard
sought clarification of the Amendment and the impacted location. A portion
of his exchange with Zilke clarified that the Amendment was focused on the
M-2 zone:
Greg Rivard:
Where does this location could be,
so without knowing all the M-2 zones in Charlottetown? There is not many?
The one that we are referring to here is off Sherwood Road, but as
you are well aware of the application last year was on the lower side of
Sherwood Road. It was near the residential,
light industrial and (unclear words). It was encouraged that the developers
try to find something in the heavy industrial. It is over the M-2, it is
across the road. It is next to, it is in behind, adjacent to (unclear words)
the big parcel of property there. It is in deep in that. It is in the proper
zone. But again, but when we removed asphalt plants from our Zoning and
Development Bylaw together, they couldn't come with anything. That's
why we are doing this to be able to allow them to come forward. But by
changing this, what we are saying, this is allowing a permitted use...
Robert Zilke:
In any M-2 zone...
Greg Rivard:
In the M-2 zone, right?
So as of right, it takes the decision making out of Council's hand. Does
that make sense? Before, it used to be a discretionary use as Robert said in
the airport zone.10
10. Planning Board recommended to Council that the Amendment proceed to
public consultation.11
11. On March 11, 2019, Council approved a motion for the Amendment to
proceed to public consultation.12
12. Notice of the public meeting was published in the Guardian newspaper
on March 16, 2019 and March 23, 2019.13
The notice addressed multiple planning matters at the City, including
a number of site-specific rezoning or exemption requests for particular
properties within the City, which included diagrams of these subject
properties.
13. The portion of the notice at the heart of this appeal was set out in
the fourth paragraph of the six-paragraph notice and reads as follows:14
Amendments to the Zoning &
Development Bylaw (Bylaw 2018-11)
Proposed amendments to the Zoning &
Development Bylaw pertaining to Housing Transitional Facility, Site
regulations for Lodging Houses, Group Homes, Site Landscaping Requirements,
Undersized Lot Regulations, Asphalt, Aggregate & Concrete Plant and General
Housekeeping amendments.
14. The public meeting was held on March 27, 2019.15
One individual questioned why asphalt plants were previously removed
from the Bylaw.16 No written
submissions were delivered after the public meeting.
15.
On April 1, 2019, Planning Board met to consider the recommendation
by planning staff to approve the Amendment.17
The staff report prepared for this meeting stated in part:
New Permitted Uses and Regulations
Amendments
Recently, the department has
received either inquiries or applications for two different land uses that
are not specifically defined in the Zoning & Development (sic); Asphalt
Plant and Transitional Housing Facility. The analysis for each is as
follows:
Asphalt, Aggregate, Concrete Plant
is proposed as both a definition and permitted use in the Heavy Industrial
(M-2) Zone. Historically, the City has approved such a use through the
Discretionary use approval process that has been removed from the existing
By-law. Due to substantial land use impacts this use can have on adjacent
properties (i.e. noise, odour, dust), staff is bringing this type of land
use forward to Council for direction to determine if it should be included
as a permitted use in the Heavy Industrial (M-2) Zone. If so, then staff is
also bringing forward Environmental Impact Assessment requirements for land
uses that could potentially present a nuisance or could have a negative
environmental impact ... .18
16. Planning Board deferred its decision to allow staff to meet with the
provincial Department of Environment to discuss issues regarding
environmental impact assessments.19
17. On May 6, 2019, Planning Board met again to consider the Amendment.20
Planning staff raised provincial buffering requirements for asphalt
plants at this meeting and advised Planning Board for the first time that it
was likely that an asphalt plant would not be approved in the West Royalty
Industrial Park (an M-2 zone).21
City planning staff did not, however, recommend any changes to the
Amendment. Planning Board recommended the Amendment for approval by Council.22
18. On May 13, 2019, Council met and recommended that the Amendment
proceed to first reading.23
The Amendment was read for the first time on June 10, 2019.24
19. Council next considered the Amendment on June 10, 2019. At that
meeting, Forbes had the following exchange with Mayor Brown with respect to
the Amendment:
Alex Forbes, PM: Your Worship, regardless of the way we deal with it what needs to
happen in the zoning bylaws is that
we need to provide clarity one way or
the other because it is a permitted use or it should be a permitted use or
not a permitted use but it should be clearly indicated in the bylaw one way
or another. Some people are stating that they do have existing rights in the
bylaw which is challenging but I disagree with them that there is any rights
to have an asphalt plant so from the staff point of view, it's just ideal
-
yes or no. Because it will set the future so there will be no lack of
clarity in regard to what the City of Charlottetown wants to do with an
asphalt plant.
Mayor Brown: Nothing in our zoning allows for an asphalt plant or concrete plant?
Alex Forbes, PM:
Correct.25
20. Following considerable debate, a motion was passed to defer first
reading. Council wished to have more time to review the matter and possibly
go to a public meeting.26
21. On June 14, 2019, Forbes sent an email to Council stating that he had
received legal advice from the City's legal counsel and that they agreed
that it would be "inappropriate" to hold a second public meeting regarding
the Amendment because a public meeting had already taken place.27
On the very same day, a special meeting of Council was scheduled for
June 17, 2019 to consider the Amendment.
22. On June 17, 2019, the Amendment passed first reading by majority
(6-4).28
23. On June 21, 2019, a second special meeting of Council was held.
The Amendment passed second reading by majority (5-4).29
Arguments of the Appellants
24. The position of the Appellants is relatively straightforward. The
public notice, and specifically the notice published in The Guardian
newspaper on March 16, 2019,30does not meet the City's obligations under the
Planning Act, the Bylaw, or the common law. Given that proper notice is a
condition precedent to Council's authority to act, this failure to give
proper notice invalidates Council's decision to approve the Amendment.31
25. The Appellants argue that the City added a controversial and highly
contested new use to the Bylaw that directly impacted the Sherwood Road
area. It was also a permitted - as opposed to a discretionary - use.
In effect, the Appellants submit that, by the Amendment, the City has
allowed for asphalt, aggregate, and concrete plants to operate within the
City and, in particular, in the area of Sherwood Road. In doing so, the
Appellants argue that this significant change to the Bylaw was made without
proper notice to affected persons.
26. The Appellants reject the City's contention that it was making a
simple, neutral text amendment to the Bylaw. Rather, the Appellants argue
that the City was well aware of prior opposition to an application for an
asphalt plant on the Sherwood Road and created a way to permit an asphalt
plant in the M-2 zone "as of right" and without meaningful notice to, or
participation by, residents in the area.
27. The Appellants dispute the City's position that the notice was
sufficient, arguing that four words in a lengthy newspaper notice, dealing
with multiple matters, does not constitute proper notice in this case.
28. The Appellants urge the Commission to focus on the text of the notice
and specifically the fact that nowhere in the notice does it identify any
affected area (or the relevant zone).
The Appellants also observe that the notice does not mention that the
effect of the amendment is to add asphalt plants to the permitted uses that
can be constructed in the M-2 zone.
The Appellants point to the following words in the notice:
Proposed amendments to the Zoning &
Development Bylaw pertaining to Housing Transitional Facility, Site
regulations for Lodging Houses, Group Homes, Site Landscaping Requirements,
Undersized Lot Regulations, Asphalt, Aggregate & Concrete Plant and General
Housekeeping amendments.
29. The Appellants rely, in part, on the oral evidence of Zilke, the City
planner who drafted the notice. The Appellants argue that Zilke described
the nature of the bylaw amendment as being to add a permitted use in the M-2
zone for an Asphalt, Aggregate, and Concrete Plant. According to the Appellants, the public notice in the newspaper
should have at least stated the nature of the Amendment as had been
succinctly described by Zilke.
30. The Appellants argue that the City's position in support of the
notice is practically illogical and would allow the City to issue public
notices consisting of a single word. The Appellant characterizes the test
for proper notice as being an objective one: would the average person
reading the advertisement know the nature of the bylaw amendment and that
they would be impacted by the amendment?
31. The Appellants also rely on a decision of the British Columbia
Supreme Court in Kelowna (City) v. Kharuna.32
They argue that the City purposely grouped the Amendment with
"housekeeping" amendments which, in effect, masked the true nature of the
Amendment from members of the public.
32. The Appellants caution the Commission against relying upon the
expertise of Zilke or Forbes with respect to the sufficiency of the notice,
arguing that their expertise is in land use planning. In this instance, they
are not impartial, independent, or unbiased. Rather, they are defending their own actions in drafting and issuing
the notice. The question of whether the notice satisfies the Planning Act is, according to the
Appellants, one that falls to the Commission to answer on appeal.
33. The Appellants also contend that the City failed to follow the notice
procedure set out in section 3.10.4 of the Bylaw in that the notice did not
identify the subject lot. In addition, the Appellants argue that the City did not post a copy of the
notice in a conspicuous place on the subject lot.33
34. Finally, the Appellants argue that the City failed to comply with its
common law duty of procedural fairness34 and that the Amendment is
inconsistent with the City's official plan.35
Arguments of the City
35.
The City argues that it met the requirements of section 18(1) of the
Planning Act in publishing the notice.36
The City argues that the nature and content of notice for a "text
amendment" differs from site specific amendments, and its sufficiency "ought
to be determined solely by satisfying the express requirements of the
[Planning] Act (and bylaw)".37The
City argues the fact that the Appellants did not see the notice is not the
appropriate test.
36.
The City also argues that sometimes more information is not as good
as concise information. It argues that it made "huge" amendments to the
Bylaw in a big package. The notice was intended to alert the reader that, if
they had an interest in the Bylaw, to visit the City's website for more
information. The City contends that it would be impossible to give a
detailed reference to everything and that the
Planning Act only requires the
nature of the amendment to be described in general - not specific - terms.
37. As noted above, the City contends that the notice meets the
requirements of the
Planning Act
and the Bylaw. In support of that
contention, the City takes a broader view of the wording in the notice than
the Appellants.The City focuses
on thirteen words - not four:
Proposed amendments to the Zoning &
Development Bylaw pertaining to Housing Transitional Facility, Site
regulations for Lodging Houses, Group Homes, Site Landscaping Requirements,
Undersized Lot Regulations, Asphalt, Aggregate & Concrete Plant and General
Housekeeping amendments.
38. The City urges the Commission to adopt this broader view and, in
doing so, it will see that the notice tells residents that the City is
making amendments to the Bylaw "pertaining to Asphalt, Aggregate, and
Concrete Plants.38
39. Counsel for the City asks the Commission to consider what was
happening with respect to the Amendment. He notes that a developer was
arguing with the City that he could erect an asphalt plant in the M-2 zone
as-of-right. Counsel notes that the Bylaw formerly permitted asphalt plants
as a discretionary use in the Airport zone before the Bylaw was amended and
this discretionary use was removed during a recent review. Counsel argues
that the amendment was a neutral text amendment and merely a "clarification"
of what Council intended to be a permitted use in the M-2 zone.
In his submissions, counsel posed the following question to the
Commission: where else would you put it?
Of course, that question presupposed that the very first questions -
do you put it back into the Bylaw and, if so, as a discretionary or
permitted use? - were already answered in the affirmative.
40. The City also argues that there is a lot of pressure from developers
and residents for planning decisions. The City packaged this amendment with
a number of others in the interest of serving the public and getting things
done. As counsel for the City explained, people expect things to happen and
do not want to be held up forever in the "quagmire of the bureaucracy."
Counsel for the City asks, if the City had added "M-2 zone" to the notice,
would it have changed anything? In his submission, there was enough, in a
general way, to alert residents that there were amendments pertaining to
"asphalt, aggregate, and concrete plants."39
41. Finally, the City argues that it met the procedural notice
requirements of the Bylaw. In addition, the City relies on
Souris (Town) v.
Jarvis40 for the proposition that
the passing of a zoning bylaw is a legislative function and, as such, so
long as the City meets its statutory requirements, there are no additional
common law requirements of procedural fairness.41
DECISION
42. The
Commission is not tasked in this appeal with determining whether or not
asphalt, aggregate, and concrete plants should be in the City or whether or
not they should be permitted uses in the M-2 zone. The merits of an asphalt
plant within the boundaries of the City, the consequences to surrounding
residents and the City generally, and the proper scope of provincial
guidelines for the environmental impact of asphalt plants are but a few
examples of the matters to be weighed and debated within the Council chamber
by the elected members of Council. They are not, however, relevant to this
appeal. The focus of this appeal
is the Amendment.
43.The issue that the Commission must decide is very narrow. In this
particular case, did the City give proper notice of the public meeting to
residents as required by law?
The Commission finds that the City did not.
The reasons for that finding follow.
44. Both parties agreed that the notice in this case had to comply with
section 18(1) of the
Planning Act.
Section 18(1) reads as follows:
18(1)
Before making any bylaw the council shall
(a) give an opportunity to residents and other interested persons to make
representations; and
(b) at least seven clear days prior to the meeting, publish a notice
in a newspaper circulating in the area indicating in general terms the
nature of the proposed bylaw and the date, time and place of the
council meeting at which it will be considered.
45. This appeal therefore turns on the interpretation of the statutory
requirement for the notice to "indicat[e] in general terms the nature of the
proposed bylaw." The provision,
as interpreted, must then be applied to the record before the Commission in
this particular case.
46. This interpretative exercise requires the Commission to examine the
text, context, and purpose of the notice requirement set out by the
Legislature in s. 18(1) of the Planning Act. The text makes it clear that
the provision is intended to give residents and other interested persons an
opportunity to make representations before a bylaw is made.
In order to ensure that the opportunity is meaningful or tangible,
council is required to publish a notice indicating, in general terms, "the
nature of the proposed bylaw" together with the details of the meeting when
it will be considered. The
nature of the bylaw must, therefore, be set out by council in general terms
so as to result in residents having an opportunity to participate (if they
choose to do so). The context of
this notice requirement is revealed upon examination of the legislation as a
whole. Section 2(e) of the
Planning Act states that one of the specific objects of the statute is "to
provide the opportunity for public participation in the planning process."
This statutory insistence upon public input is also found at other
critical stages of the planning process, including the development of
official plans,42 interim planning policies,43 bylaws,43
and development charges.45 Finally, the very purpose of notice is to give persons sufficient
information about a particular subject so that they can make an informed
decision whether to participate and, if they do decide to participate, to do
so in a meaningful way. Notice is, therefore, intended to facilitate public participation in the planning
process.
47. After analyzing the text, context and purpose of section 18(1) of the
Planning Act, the Commission finds that the appropriate measurement for
proper notice was set out by the Appellants in their written submissions46 and grounded in the decision in Peterson v. Whistler (Resort Municipality),47 which states:
Next, one must consider the requirements in the statute as to notice and
their purpose. The notice is not required to set out the provisions
of the by-law, but its intent in general terms. A major part of its purpose
is to inform those citizens of the municipality who might reasonably be
deemed to be affected by the proposed re-zoning, including owners
and occupiers nearby, of what the intent of the by-law is so that
such persons, average citizens, may come to an informed conclusion as to
whether to attend or take part in representations at the public meeting.
They are to be informed within reason as to the extent, if any, to which the
by-law might affect them, so that they might reach a conclusion as to
whether to seek further details by perusing the by-law and the
like. It is essential for the citizen in question to be informed of the
intent of the by-law.
48. When determining whether the notice in this particular case was
adequate, the Commission must consider whether the average citizen would
have, upon reading the notice, been reasonably notified of the purpose (or
nature) of the Amendment.48
49. The Kelowna decision relied upon by the Appellants is not
determinative of this appeal, but it is instructive and helpful. In Kelowna,
proposed bylaw amendments initiated by the municipality imposed additional
restrictions on the defendant's property. The municipality advertised the
proposed bylaw amendments as "housekeeping" amendments.
50. The British Columbia Supreme Court reviewed the advertisement to
determine if it provided adequate public notice. In doing so, it stated that
the "whole of the notice must be read in conjunction with the proposed
bylaw."49 In finding that
"housekeeping" was the descriptive term for the purpose of the bylaw, the
court found that the notice did not permit the average person to conclude
that they should attend the public hearing because the amendments may affect
them. The court held that "the essence of the notice requirement is that the
content must be such that a meaningful and informed decision can be
made by those affected by the proposed changes."50 The court went on to state:
The City argues that the number of people who attended the first public
hearing is an indication that the notice was sufficient. However, reliance
on the number of people who attended the meeting brings a subjective element
to the analysis. The assessment of the adequacy of the notice is an
objective analysis. An objective analysis leads to only one conclusion: the
notice did not adequately state the purpose of the bylaw. The intent was to
change the bylaw in substantial ways - not just for housekeeping purposes.51
51.
In light of this judicial
guidance, what then is the nature (or purpose) of the Amendment? It is as
described by the City itself. In
their reports to Planning Board, planning staff explained that the purpose
of the Amendment was to add a new permitted use
for asphalt, aggregate, and concrete plants in the M-2
zone.52 On cross-examination, Zilke, the drafter of the Amendment and the notice, was
questioned at length as to his understanding of the purpose of the
Amendment. He agreed that the nature of the Amendment was to permit asphalt
plants in a particular zone, that the amendments included a permitted use,
an environmental impact assessment and a definition of "asphalt, aggregate,
concrete plant," and that this information was not included in the notice:
Nicole McKenna: No.
So this morning I asked you what the nature of the proposed bylaw
amendment was and you said it was to add a permitted use in the M2 zone for
asphalt, aggregate and concrete plants - and that's not stated anywhere in
this advertisement is it?
Robert Zilke: That specific reference is not stated.
Nicole Mckenna: OK.
And we agree that that's the nature of the bylaw amendment, is that
right?
Robert Zilke: Well, I would say that the nature of the
bylaw amendment was again to permit for asphalt - like asphalt, aggregate
and concrete plants so there was a multiple amendments such as permitted
use, EIA and then the definition.
Nicole McKenna: OK.
And those are not stated in this advertisement [inaudible]?
Robert Zilke: No.
Those are not stated in the advertisement.53
52. In the face of the record
and the testimony of City planning staff, the Commission cannot agree with
the suggestion of counsel for the City that the Amendment is merely a simple
textual amendment to the Bylaw. According to the City's own record and
submissions, asphalt plants were previously a discretionary use in the
Airport zone. This discretionary use was removed from the Bylaw during a
previous review. The Amendment was, according to the City, initiated by its
own planning staff for the purpose of adding a new permitted use in a
particular zone, namely the M-2 zone.54
Planning staff were also aware, however, that this new permitted use
could not, in fact, be approved in the West Royalty Industrial Park (another
M-2 zone).55
53. Did the notice published by
the City in this case provide residents and other interested persons, who
could reasonably be impacted by the Amendment, with the opportunity to make
an informed decision whether to make representations to the City regarding
the Amendment? The Commission is satisfied that the notice did not do so for
at least two reasons.
54.
First, the record is clear
that the focus of the amendment was the M-2 zone. Nowhere in the notice is
this information found. For public notice to be adequate, affected persons
must be able to reasonably determine if the proposed amendment may impact
them. In this particular instance, it is unclear from the notice that a new
use was being defined and inserted into the Bylaw. It is also unclear where
(and, as a result, who) within the City would be impacted by this change.
It is further unclear whether this new use would be permitted or
discretionary.
55. The Commission does not
accept that clarifying the affected zone or the nature of the proposed use,
in this particular instance, would be an impossible administrative burden on
the City. Theoretical amendments affecting numerous zones, as discussed
during oral testimony, are not relevant to this Amendment or this notice.56
56. Second, the Amendment
introduced a new defined term, namely "Asphalt, Aggregate, and Concrete
Plant,"57 into the Bylaw. This
term was almost identical58 to the terminology used by the City in the notice
and the terminology presented to the Commission as being adequate. The
Commission finds that it was not sufficient for the City to simply insert
the newly defined term into the notice, without more, and then suggest that
publication of the term alone constituted adequate notice of not only a new
definition, but also a new permitted use within a particular zone.
After reading the notice, an average citizen would not be notified of
these consequences. In this
case, the nature (or purpose) of the Amendment was not made reasonably clear
by the City in its notice.
57. Much time was spent in oral
argument in determining whether City planning staff intentionally worded the
notice and grouped "Asphalt, Aggregate, & Concrete Plant" together with
"General Housekeeping amendments" so as to obscure the true nature of the
Amendment. Proof of intention,
however, is not necessary in order for the Commission to undertake an
objective analysis of whether the notice was proper in this particular case.
The applicable perspective is that of the average resident.
58. It is also not lost on the
Commission that legal counsel spent a considerable amount of time during the
hearing arguing about the placement of commas, phraseology, and discrete
terms in a newspaper notice. Although by no means conclusive, it certainly
lends some practical support to the Commission's determination that the
average citizen would not be capable of reasonably determining whether the
Amendment affected them and making an informed choice whether to participate
by making representations to the City.
59. Under cross-examination,
Forbes suggested that residents of the M-2 zone ought to have been
sufficiently triggered by the notice, given the past history of asphalt
plants in the Sherwood Road area. Suffice to say, prior knowledge of earlier
site-specific applications does not - and should not - minimize the City's
notice obligation for an amendment that, according to the City, was
initiated by its own planning staff to add a new permitted use and was not
focused on any particular development or developer. The burden on the City
is a statutory one, and the applicable test is objective in nature. The
knowledge of residents of previous applications is not relevant to deciding
whether the City met its notice obligation under the
Planning Act
in this
particular instance.
60. The Commission itself, even
with the benefit of the complete record, oral testimony of staff from the
City and institutional expertise in the area of municipal land use planning,
is not able to determine, based on the contents of the notice, the nature of
the Amendment, the zone or area impacted by the Amendment, or the persons
that could be affected by the Amendment. In other words, the notice published in this case does not indicate
in general terms the nature of the proposed bylaw.
61. The Commission also wishes
to briefly address the arguments raised by the City during the hearing that
its planning staff are busy and doing the best they can. The Commission does
not dispute this statement. The City processes a high volume of development
applications and Bylaw amendments.
The vast majority of those decisions do not find their way to the
Commission for review. However, in this case, the Commission was presented
with a bylaw amendment that, according to the City, was initiated by its own
staff. While efficiency and
expediency are relevant considerations, they do not alleviate the City from
discharging its legal obligation to provide its residents with proper notice
of amendments to the Bylaw.
62. The City is free to amend
the Bylaw as it sees fit within the parameters of the law. It is for the
City to determine whether to define asphalt, aggregate, and concrete plants
and to determine, with reference to its official plan and the Bylaw, if and
where this use may be permitted within the City and its zones.
However, in doing so, it is incumbent upon the City to provide its
residents with adequate notice of any proposed amendment so as to facilitate
meaningful public participation as expressly contemplated by the
Planning Act.
63. Having concluded that the
notice is deficient on its face and does not satisfy s. 18(1) of the
Planning Act, the Commission finds that it is not necessary to address the
Appellants' secondary arguments.
Both parties agreed that the notice in this case had to comply with section
18(1) of the
Planning Act. The
central issue in dispute between the parties was therefore determinative of
this appeal.
CONCLUSION
64. The appeal is allowed and
the City's decision to approve the Amendment is quashed.
Footnotes:
1 Record, Tab 22.
2 Brown's Volkswagen, Centennial Auto Group, Phillips Suzuki, and Cathy Feener
(collectively, the "Apellants")
3 Offers included the week of September 23, 2019, October 8-11, 2019. October
15-18, 2019, December 4-6, 2019 *unable to schedule due to preliminary
hearing and subsequent procedural order), the week of March 2, 2020 (legal
counsel for the City was uanavailable in March and April); May 26-28, 2020.
4 The parties also filed written submissions with the Commission. The
Appellants filed a factum and book of evidence.The City filed a factum and
book of evidence. The City filed a reply to the notice of appeal and
additional written submissions in advance of the hearing.
5 As confirmed by City Planning Staff during oral testimony before the
Commission.
6 Oral testimony of Thompson. See also email correspondence from D. Hooley to
Forbes dated February 27, 2019 - Record, Tab 23.
7 Oral testimony of Forbes.
8 Oral testimony of Zilke.
9
Record, Tab 2 [emphasis added].
10 Record, Tab 3 [emphasis
added].
11 Record, Tab 3.
12 Record, Tab 5.
13 Record, Tabs 4, 7, and 12 (p.11).
14 Record, Tab 4 Emphasis in original}.
15 Record, Tab 11.
16 The report from planning staff
dated April 1, 2019 states that a resident asked a question at the public
meeting regarding why asphalt plants were removed from the Bylaw. On
cross-examination, Zilke agreed with questioning that the individual who
spoke appeared to be a resident of Stratford and not the City.
17 Record, Tab 13.
18 Record, Tab 12.
19 Record, Tab 13.
20 Record, Tab 14.
21 Record, Tab 15. In other words, with the Amendment, the only remaining location for an asphalt plant would be the area of Sherwood Road.
22 Record, Tab 15.
23 Record, Tab 16
24 Record, Tab 18.
25 Record, Tab 18.
26 Record, Tabs 18 & 19.
27 Record, Tab 23.
28 Record, Tab 20.
29 Record, Tab 21.
30 And again on March 23, 2019. Record, Tab 4.
31
Appellents' Factum, para. 105-106.
32 2018 BCSC 392 [Kelowna].
33 Bylaw, ss. 19.4(b) and(d). See Appellants' Factum, paras. 142-159.
34
Appellants' Factum, paras. 160-208.
35 Appellants' Factum, paras. 209-223.
36 City Written Submission filed August 1, 2019.
37 Ibid.
38 City Written Submission filed August 1, 2019, p.6. The notice in question
did not reference "Plants", but rather "Plant"
[emphasis added]. Nothing really turns on this pluraization by counsel for
the City; however, it does lend support for the view that the notice was not
reasonably clear as to its purpose (or nature). It cannot reasonably be
argued that a reader of the notice would be informed that the Amendment was
adding a definition, introducing a permitted use, and directing both items
to a particular zone or area of the City.
39 Ibid.
40 2009 PESC 35.
41 City Written Submission filed August 1, 2019, p.4.
42 Planning Act, ss.11(1)&(2).
43 Planning Act
s.10(3)
44 Planning Act, s.18(1).
45 Planning Act, s.20.1(3)
46 Appellants' Fractum, paras. 115-116.
47. 1982 CanLII 710 (BC SC) at
para. 42 [Peterson] [emphasis added]. Appellants' Factum, Tab 3. In
Peterson, the relevant statutory provision required the notice to "state in
general terms the intent of the proposed bylaw." See Peterson at
para. 44. See also Kelowna at para.15, citing Great Canadian
Casinos Co. v. Surrey (City), 1999 BCCA 619 at para. 10 [Great Canadian
Casinos], which noted that the statutory language had been revised since
Peterson to change "intent" to "purpose" (consistent with s.18(1) of the
Planning Act). In Great Canadian Casinos, the British Columbia
Court of Appeal determined that this statutory amendment of "intent" to
"purpose" did not affect the statement in Peterson.
48 Great Canadian Casinos at paras. 10-11. See also
Kelowna
at para. 16.
49 Kelowna at para. 17.
50 Kelowna
at para. 22 [emphasis added]
51 Kelowna at para. 21 [emphasis added].
52 It is not, as set out in the
text of the Amendment itself, simply "to amend the City of Charlottetown's
Zoning and Development Bylaw provisions to permit an Asphalt, Aggregate and
Concrete Plant and insert a definition for said use under Appendix A.
Definitions."See Record, Tab 22.
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53 This verbatim excerpt was prepared by the Commission's Appeal
Administrator upon review of the audio recording. It is not a certified
transcript.
54 See, for example, the report from planning staff dated
April 1, 2019 which discusses the "Asphalt, Aggregate, Concrete Plant"
amendment under the heading "New Permitted Uses and Regulations Amendments".
Record, Tab 12.
55 Record, Tab 15. In other words, with the
Amendment, the only remaining location for an asphalt plant would be the
area of Sherwood Road.
56 Likewise, the focus of this appeal is not on other proposed bylaw
amendments found within the notice. This is not an appeal regarding the
appropriateness of the notice given regarding site landscaping requirements,
garden suites, undersized lot regulations, or general housekeeping
amendments.
57 Record, Tabs 12 & 22.
58 The only difference being the use of "&"
between "Aggregate" and "Concrete" in the notice.
Order
WHEREAS
the Appellants, Brown's Volkswagen et. al. appealed a decision of the
City of Charlottetown
dated June 21, 2019 to amend its Bylaw to permit an Asphalt,
Aggregate, and Concrete Plant and to insert a definition for that
use under Appendix "A" Definitions;
AND WHEREAS
the Commission heard the appeal at a hearing conducted on June 24, June 25,
and June 26, 2020;
AND WHEREAS
the Commission has issued its findings in this matter in
accordance with the Reasons for Order issued with this Order;
NOW THEREFORE
pursuant to the
Island Regulatory and Appeals Commission Act
and the
Planning Act,
IT IS ORDERED THAT
1. The appeal is
allowed.
2. The June 21, 2019 decision of the City to amend its Bylaw to permit an
Asphalt, Aggregate, and Concrete Plant and to insert a definition for that
use under Appendix "A" Definitions is quashed.
DATED at Charlottetown, Prince Edward Island,
Tuesday, December 15, 2020.
BY THE COMMISSION:
J. Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
Jean Tingley, 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
provides as follows:
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.
(2) The 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.
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