Title: Order LA17-08 - Dockets LA16007 and LA16012 - Planning Appeal -
Pine Cone Developments Inc. v. City of Charlottetown (November 15, 2017)
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Dockets LA16007 and LA16012
IN THE MATTER of
by Pine Cone Developments Inc. of an appeal of June 28, 2016 decision of
the City of Charlottetown to deny an application for a building permit and
a September 12, 2016 decision of the City of Charlottetown to deny a
request for reconsideration of the said earlier decision.
BEFORE THE COMMISSION
Wednesday, the 15th day of November, 2017.
Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
John Broderick, Commissioner
Appearances & Witnesses
Reasons for Order
2. Testimony & Discussion
Appearances & Witnesses
1. For the Appellant Pine Cone Developments Inc.
John W. Hennessey, Q.C., Barrister & Solicitor,
2. For the Respondent City of
David W. Hooley, Q.C., Barrister &
Solicitor, Cox & Palmer
Reasons for Order
(1) Pine Cone Developments
Inc. ("Pine Cone") has filed two appeals with the Island Regulatory and
Appeals Commission ("Commission") under section 28(1.1) of the
R.S.P.E.I. 1988, Cap. P-8 ("Planning Act").
Appeal docket LA16007 is an appeal from a June 28, 2016 decision by
the City of Charlottetown ("City") to deny approval of a building permit
application. Appeal docket
LA16012 is an appeal from a September 12, 2016 decision of the City to
deny a request to reconsider its June 28, 2016 decision.
To summarize, this case revolves around an application by Pine Cone
for a building permit for provincial parcel number 393314 located at 11-13
Pine Drive in Charlottetown, Prince Edward Island ("Property").
(2) On May 18, 2016, Pine Cone
applied for a building permit to construct a 27 unit apartment building on
the Property. On June 28,
2016, Pine Cone received a letter from Alex Forbes, who is the City's
manager of planning and heritage.
Mr. Forbes advised Pine Cone that the City could not issue a
building permit for the proposed building.
He provided a number of reasons for that decision.
(3) On July 18, 2016, Pine
Cone filed a notice of appeal with the Commission.
It appealed the City's decision of June 28, 2016.
On this same date, Pine Cone wrote to the City and requested
reconsideration of its decision.
Pine Cone also asked the Commission to hold the appeal in abeyance
pending the outcome of the request for reconsideration.
The Commission agreed to this request.
(4) As part the
reconsideration process, the Planning Board received a written report
dated September 6, 2016 from Laurel Palmer-Thompson, who is a planning and
development officer employed by the City.
The report examined the earlier rationale for refusing the building
permit and provided input on the request for reconsideration from a
professional planning perspective.
The Planning Board met on September 6, 2016.
Ms. Palmer-Thompson reviewed her written report.
The Planning Board recommended to Council that the request for
reconsideration be rejected.
(5) On September 12, 2016 the
reconsideration request came before Council.
The verbatim minutes from that meeting set out the grounds relied
upon by Council for rejecting Pine Cone's request for reconsideration:
(6) On October 3, 2016, Pine
Cone filed a second notice of appeal with the Commission.
It appealed the decision by Council on September 12, 2016.
Pine Cone requested that both appeals be set for hearing together.
The Commission agreed to this request.
(7) On November 4, 2016, the
Commission received the record from the City.
On November 8, 2016, the Commission informed the parties that it
was available to hear the appeals on December 8 and 9, 2016.
Unfortunately, legal counsel for the parties were unavailable.
Accordingly, the Commission scheduled the matter to be heard on
January 11 and 12, 2017 with the agreement of counsel.
(8) The hearing of both
appeals began on January 11, 2017 and was expected to conclude the
following day. However, Pine
Cone requested an adjournment early in the morning of January 12, 2017 as
its legal counsel was unable to attend.
The Commission adjourned the appeal and the hearing of the matter
concluded on the next available date, being February 7, 2017.
2. Testimony & Discussion
Pine Cone's Position
(9) Pine Cone presented one
witness, Trevor Bevan. Mr. Bevan has been involved in property management
with Pine Cone since 2011, with particular emphasis on property
development projects. Mr.
Bevan testified that Pine Drive is a cross street that runs between
Brackley Point Road and Mount Edward Road.
The Property has a street frontage of 121 feet.
Mr. Bevan presented as a capable witness and his evidence was
helpful to the Commission.
(10) Mr. Bevan testified that
Pine Cone acquired the Property in 2011 and was aware that the Property is
zoned R3. Pine Cone acquired
the Property with the intent of developing a new multi-unit apartment
building. Initially, Pine Cone
intended to build a 24 unit apartment building.
However, Pine Cone later withdrew that application after the public
meeting was held. Pine Cone
then acquired provincial parcel number 393322, which is zoned R1 and
located immediately to the west of the Property.
Pine Cone submitted a new proposal for the development of both
properties. There was
considerable public opposition and, again, Pine Cone withdrew the
application. The latest
application by Pine Cone was for a 27 unit apartment building with
underground parking. That
application is the subject of this appeal.
(11) Mr. Bevan introduced
Exhibit A6 at the hearing.
Exhibit A6 contains photographs of various multi-unit residential
buildings within the City of Charlottetown that are located adjacent to
single family homes. This
exhibit was reviewed closely by the Commission.
(12) Pine Cone did not present
supporting evidence from a professional planner.
(13) Legal counsel for Pine
Cone did, however, make detailed submissions to the Commission at the
hearing. Counsel referred the
Commission to the book of authorities filed on behalf of Pine Cone
(Exhibit A3), which includes excerpts from the City's Zoning & Development
Bylaw ("Bylaw"), various provisions from the
and case law being relied upon by Pine Cone.
While all submissions made by Pine Cone were heard and considered
by the Commission, some of the highlights included:
While Pine Cone appealed the original decision and the reconsideration
decision by the City, its focus is on the original decision.
Pine Cone's application for a 27 unit apartment building was "as of right"
and the City's refusal to issue a permit is contrary to the Bylaw.
The City's decision is arbitrary and based on subjective opinions rather
than objective criteria.
Any contrast between Pine Cone's proposed development and the existing
neighbourhood is a consequence of the Bylaw and the Official Plan.
The existence of two different zones on adjacent properties, R1 and
R3, creates the disharmony. However, this dual zoning was done intentionally.
The content of the Official Plan must be carried into, and expressed in,
the Bylaw. A development
proposal must therefore be assessed according to the requirements of the
Bylaw and not the Official Plan.
Pine Cone's proposed development of the Property is consistent with the
Mr. Forbes from the City did
not refer the application to the Planning Board under section 4.54.4(c) of
the Bylaw. The fact that the
application proceeded to Planning Board as part of the reconsideration
process does not "cure" this missed procedural step because 4.54.4(c) is a
The criteria set out in Bylaw sections 4.54.4(c), 4.54.6(f), and 4.62.3(a)
are subjective when they ought to be objective.
Bylaw section 4.54.6(f) speaks of architectural disharmony, but the scale
and size of a building are not architectural features.
Exhibit A6 illustrates how the subjective criteria in the Bylaw may be
applied on an arbitrary basis.
There is a distinction to be made between objective facts and objective
criteria. Lot coverage and
height are some examples of objective facts, but the case law says the
criteria have to be objective.
While no statement of compatibility was filed, it is the practice of the
City that missing information will be requested if an application is
believed to be incomplete. The
City did not go back to Pine Cone and request a statement of compatibility
for the current application, but they had done so in the past (Exhibit R1,
Vol.1, Tab 21).
Different planners will have different opinions when applying the
subjective criteria set out in the Bylaw and, therefore, their opinions
are also subjective and provide no protection against arbitrary decisions.
(14) Pine Cone requests that
the Commission allow the appeal and order the City to issue the building
(15) The City presented two
witnesses, Laurel Palmer-Thompson and Alex Forbes.
Ms. Palmer-Thompson is a professional land use planner and is
employed by the City as a planning and development officer.
Mr. Forbes is also a professional land use planner and serves as
the City's manager of planning and heritage.
The testimony of Ms. Palmer-Thompson and Mr. Forbes was presented
at the hearing as a panel. It
was helpful to the Commission.
(16) Ms. Palmer-Thompson has
worked with the City's planning department for approximately 13 years.
She testified about the two prior applications by Pine Cone for
development of the Property.
Neither application is the subject of this appeal.
This evidence was therefore presented as background information
(17) Ms. Palmer-Thompson
testified that the first application for a 24 unit apartment building was
filed in 2012. The application
proceeded to a public meeting where concerns were raised about traffic,
property values, overpowering adjacent dwellings, and surface water
drainage. Letters from
concerned residents were also filed with the City.
Ms. Palmer-Thompson testified that there was a great deal of public
opposition. The application
was withdrawn by Pine Cone before the matter could go back to Planning
Board for consideration.
(18) Ms. Palmer-Thompson
testified that the second application was filed in 2013, and it proposed a
19 unit townhouse development for the Property and the adjacent provincial
parcel number 393322. This
proposal also involved a request to re-zone the Property and provincial
parcel number 393322 to the Comprehensive Development Area zone.
A public meeting was held.
The Planning Board recommended approval of this proposal,
contingent on Pine Cone entering into a development agreement with the
City. A draft development
agreement was then prepared.
Pine Cone had questions about the development agreement and requested that
the proposal not proceed to Council for consideration.
(19) Mr. Forbes has worked with
the City for approximately three and a half years.
He testified that he took responsibility for Pine Cone's current
application, which is the subject of this appeal.
Mr. Forbes testified that he met with the principals of Pine Cone,
reviewed the application, and discussed the matter with planning staff at
the City. He was concerned
that the application was in conflict with some of the policies expressed
in the Official Plan. Mr.
Forbes' letter to Mr. Bevan on June 28, 2016 (Exhibit R1, Vol.3, Tab 105)
sets out those concerns.
(20) Mr. Forbes referred to
section 1.3 of the Official Plan, noting that the Official Plan
articulates policies which preserve existing residential low density
neighbourhoods and ensures that new residential development is physically
related to its surroundings.
He also acknowledged section 3.1 of the Official Plan, which encourages
efficient compact urban form while sustaining existing character and
identity. Mr. Forbes also
testified that, pursuant to section 3.2.2 of the Official Plan, moderately
higher densities are encouraged so long as such initiatives do not
adversely affect existing low density housing.
To summarize, Mr. Forbes testified that the Official Plan requires
new development to be physically related to its surroundings in order to
be harmonious and to maintain the distinct character of the City's
(21) Mr. Forbes also testified
that Pine Cone's proposal conflicts with sections 4.54.4(c), 4.54.6(f),
and 4.62.3(a) of the Bylaw. He
testified that a development officer at the City may refuse an application
if the conditions in the Bylaw are not met.
He also noted that the application did not contain a written
statement with graphic descriptions that addressed the compatibility and
integration of the proposed development with existing adjacent land uses,
as required by section 4.62.2(c) of the Bylaw.
Mr. Forbes stated that he refused the application on the ground of
compatibility. He testified
that he was not trying to prevent the exercise of Pine Cone's right to
(22) Ms. Palmer-Thompson
testified that she did her own review of Pine Cone's application after the
request for reconsideration was filed.
Her report of September 6, 2016 (Exhibit R1, Vol.3, Tab 109)
referred to section 4.30 of the Bylaw, which sets out the process for
reconsideration. She noted
that her report was based on a review of the application by Pine Cone as
well as the grounds set out by Pine Cone in its request for
reconsideration. She noted
that Pine Cone based its request on section 4.30.3(c) of the Bylaw, which
(c) there is a clear doubt as to the correctness of the order or decision
in the first instance.
(23) Ms. Palmer-Thompson
characterized Pine Cone's proposal as an infill project.
She testified that the role of planning staff was to ensure that
the project fit into the existing neighbourhood.
She testified that Pine Drive is an older, established, and stable
residential neighbourhood. She
testified that R1 zoning is adjacent to the Property, but also noted that
there is some R2S zoning nearby, which allows for a mix of single family
and semi-detached homes. She
further noted that there is some R3 zoning some distance away on St.
Peter's Road. Ms.
Palmer-Thompson identified bulk, mass, and scale as factors that made it
difficult for Pine Cone's proposal to fit into the existing streetscape.
She also noted that Pine Cone did not file a written statement as
required by section 4.60.2(c) of the Bylaw.
Ms. Palmer-Thompson provided her September 6, 2016 report to
Planning Board, who agreed with her recommendation to deny the request for
recommendation from Planning Board then went to Council for consideration.
Council also agreed to deny the request.
(24) In her testimony, Ms.
Palmer-Thompson reviewed the neighbourhoods represented in the photographs
contained in Exhibit A6. These
properties were distinguished from the Pine Drive neighbourhood.
(25) Under cross-examination,
Mr. Forbes testified that Pine Cone, after filing the current application,
was seeking to move the matter along and receive a decision.
Pine Cone wanted a swift decision - a yes or no answer - and they
did not want to go back to the public for input.
Mr. Forbes determined, however, that he could not issue a building
permit for the current project.
(26) Mr. Forbes also testified
that the phrase "architectural disharmony" is broader than the phrase
"architectural details." He
also testified that some architectural designs can help to mask the bulk,
scale, and size of a building.
These design features relate to harmony and compatibility.
(27) Under cross-examination,
Ms. Palmer-Thompson testified that planning staff at the City try to work
with a developer (or their architect) in a collaborative way to try to
make a project fit into an existing neighbourhood.
She testified that her opinions on planning matters represent a
professional opinion based on planning practices.
Ms. Palmer-Thompson was candid and stated that she does not see any
issues with respect to traffic.
She noted that there was a traffic assessment done for one of Pine
Cone's earlier applications and no concerns were raised.
Ms. Palmer-Thompson also testified that concerns about property
values require "good hard facts to back it up," such as appraisals.
She noted that there were no such reports in this case and that
this was not a legitimate concern.
Ms. Palmer-Thompson testified that she was unable to speak about
any surface water drainage issues because Pine Cone had not yet submitted
a surface water drainage plan.
Ms. Palmer-Thompson expressed her view that the calculation of lot
coverage, the bulk, scale and massing of the project, and the height of
the proposed building would overpower the existing streetscape on Pine
Drive. Ms. Palmer-Thompson did
state that she visited the Pine Drive area before completing her report to
(28) Counsel for the City filed
a written submission with the Commission and presented oral argument at
the hearing. While both were
considered fully by the Commission, some of the highlights from oral
Pine Cone's application was thoroughly reviewed by the City because it was
initially reviewed and declined by Mr. Forbes and then went to
reconsideration where it was reviewed by Ms. Palmer-Thompson, Planning
Board, and Council.
The City is not saying "no" to a multi-unit residential development on the
Property; rather, the City is saying this particular proposal is not
appropriate in light of the neighbourhood, the Official Plan, and the
The purpose of the Bylaw is to implement the Official Plan.
After the Bylaw is enacted, the role of the Official Plan is to
inform the interpretation of the Bylaw.
The Pine Drive neighbourhood is an established, stable, and low density
neighbourhood featuring large lots.
It is not a neighbourhood in transition.
Bulk, scale, and mass are architectural considerations that are relevant
when a professional planner is assessing architectural disharmony.
In this case, two analyses were performed.
Each was done by a professional planner.
The assessments were neither arbitrary nor subjective.
They were performed by professionals.
Lot coverage, size, mass, bulk, building height, and shape of the
lot are all objective criteria that must be considered.
Pine Cone did not want to go to a public meeting.
Rather, it wanted a swift "yes" or "no" decision from the City.
As part of the reconsideration process, the decision did go before
Planning Board and Council. Both confirmed the decision reached by professional planning staff
employed by the City. From a
pragmatic perspective, this "cured" any procedural irregularity because
Planning Board did, in fact, ultimately review the matter.
While Pine Cone may argue that it was initially deprived of due
process, it encouraged that process by wishing to avoid a public meeting
and seeking a swift decision from the City.
In the most recent application, Pine Cone did not provide the City with a
written statement regarding integration with adjacent land uses, contrary
to the requirement set out in section 4.62(c) of the Bylaw.
The reconsideration process is narrow in scope because there is a right of
appeal to the Commission. The
applicable ground requested by Pine Cone for the reconsideration was
section 4.30.3(c). Ms.
Palmer-Thompson's report addressed the reconsideration process and Council
put its mind to the key issues when making this decision.
(29) The City requests that the
Commission deny the appeals.
(30) After a careful
review of the evidence, the submissions of the parties and the
applicable law, it is the decision of the Commission to deny the
(31) No objection as to
jurisdiction was raised by the parties, and the Commission finds
that it has the necessary jurisdiction to hear both appeals under
section 28(1.1) of the
(32) It is well-known and
accepted that appeals under the
take the form of a hearing de novo before the Commission.
The Commission may, and generally does, hear new evidence in
addition to the record before the original municipal decision-maker.
The Commission does have the power to substitute its decision
for that of a municipality.
However, the Commission does not lightly interfere with
That is especially true when a municipality has acted fairly,
provided substantive reasons for its decision, and those reasons are
animated by sound planning principles, the
and the applicable bylaw or official plan.
(33) The Commission
generally uses two questions as a guideline when exercising its
appellate authority under the
In the context of an appeal from a municipality, those
Whether the City followed the proper process and procedure required
by the Official Plan and Bylaw, the
and the law in general, including the principles of natural justice
and fairness, when making a decision on the application; and
Whether the City's decision on the application has merit based on
sound planning principles within the field of land use planning and
as enumerated in the
the Official Plan, and the Bylaw.
(34) There is agreement
that the Property is zoned Medium Density Residential (R-3), and a
27-unit apartment building meets the technical conditions for that
zone as set out in section 17 of the Bylaw.
(35) Pine Cone takes the
position that, by meeting the technical requirements in the R-3
zone, it is entitled to a building permit for a 27-unit apartment
building as of right.
Pine Cone also takes the position that provisions of the Official
Plan cannot be used to deny an as of right development.
Pine Cone also takes the view that the provisions of the
Bylaw being relied upon by the City are subjective and arbitrary
and, therefore, cannot be used to deny an as of right development.
(36) The City does not
share these views. It
takes the position that the Property, although zoned R-3, is an
example of spot-zoning, is an infill property within an existing
neighbourhood, and that various provisions in the Official Plan
extend additional protection to that surrounding neighbourhood.
The City also takes the position that the application
conflicts with several specific provisions of the Bylaw, namely
sections 4.54.4(c), 4.54.6(f) and 4.62.3(a).
In short, there is limited residual discretion vested in the
City to deny approval even when a development is, on its face, as of
(37) Counsel for Pine
Cone referred the Commission to three cases from Ontario and New
Brunswick: Steven Polon Ltd. v. Metropolitan Toronto Licensing
Commission, 1961 CarswellOnt 147 (H.C.), Re R.K.A. Associates Ltd.,
1973 CarswellNB 155 (S.C. (Q.B.)), and Woodglen & Co. v. North York
(City), (1983), 43 O.R. (2d) 289 (Co. Ct.), aff'd in (1984) 47 O.R.
(2d) 614 (Div. Ct.).
Counsel for Pine Cone also referred the Commission to paragraph 3.10
of Canadian Law of Planning and Zoning, Second Edition, which reads
Later judicial pronouncements, however, have made it clear that an
official plan, even after adoption and approval, is not effective to
prevent development at variance with the plan in the absence of a
zoning by-law giving effect to the use proposals.
An Ontario plan has been held no more than a statement of
intention of what at the moment the municipality plans to do in the
future and is not an effective instrument restricting land use, and
until it is implemented by by-law, it is only a recommendation.
(38) In Prince Edward
does state that an official plan requires implementation in the form
of bylaws. However, the
legislation also goes further than mere implementation.
Sections 15(1)(d), 15(2), and 16 of the
provide as follows:
approval of an official plan by the Minister
(d) the council shall, as soon as is practicable, cause
bylaws to be
made to implement the official plan.
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
A council may make
bylaws implementing an official plan for the municipality.
(39) These local
statutory provisions must also be read in conjunction with s.
9(1.1)(b) of the
applicable to official plans pursuant to clause 7(1)(b) have; ...
been adopted, established or made, the land use policy of a council
or the official bylaws of a municipality shall, subject to
subsection 7(2), be consistent with them.
(40) By virtue of Order
EC640/97, Executive Council adopted the Minimum Requirements for
Municipal Official Plans.
Among other things, these requirements state that:
3.0 Official Plan
3.3 The social, economic, physical and environmental objectives
contained in the Official Plan should be measurable and as specific
as possible. They should lend themselves to practical evaluation and
general statements should be avoided.
12.0 Official Plans are Binding
Official plans are binding on the Council, the Minister,
residents and property owners within the municipality.
It is well-established that the Legislature does not speak in
vain and all provisions in an enactment are intended to have
meaning. When read
together, subsections ss. 9(1.1)(b), 15(1)(d), 15(2), 16 of the
and Executive Council Order EC640/97 combine to give legal effect to
the Official Plan of the City.
This local statutory matrix means that the Official Plan is
binding upon the City, its residents, and land owners within the
municipality. It also
means that the Official Plan has legal effect even after the
implementation of the Bylaw.
Finally, it means that, from a hierarchical perspective, the
Official Plan is paramount and the Bylaw must be consistent with the
Official Plan. In the
event of an inconsistency or conflict, the content of the Official
Plan prevails. In
summary, in Prince Edward Island, an official plan is not merely a
it contains binding legal content for municipalities and therefore
must be considered together with the strict technical requirements
found in a zoning and development bylaw.
The Commission finds that, in Prince Edward Island, official
plans are binding on a municipal council, residents, and property
owners. They form part
of the body of municipal law in our province and, unlike some other
jurisdictions, they are not exhausted upon the implementation of
bylaws. Official plans
in Prince Edward Island are not merely statements of intention.
They continue to have legal effect, they inform the meaning
and content of bylaws and, to the extent of any conflict or
inconsistency, they will prevail.
This conclusion is not only supported by the wording of the
and Executive Council Order EC640/97, but also the case law from the
For example, in O'Brien v. City of Charlottetown, Order
LA05-08, the Commission observed that, even in the context of an "as
of right" development, the official plan is a consideration and its
objectives must be satisfied by a municipal decision:
The Commission does
not accept that the development is an "as of right' decision until
the Official Plan has been considered.
Had a decision been made that the development did in fact
meet the objectives of the Official Plan, then the argument that it
is an "as of right" decision carries more weight.
therefore allows the appeal, in part, and while finding that the
technical requirements were met, orders that the lot consolidation
and subdivision decision be held in abeyance until such time as the
Respondent has made a formal determination on whether or not it is
in keeping with the Official Plan.
(44) In Lavoie v. Town of
LA12-01, the Commission considered the role of sound
planning principles and an official plan in the context of an "as of
right" development. The
municipality and the Commission considered not just the bylaws, but
also the official plan:
proposal, properly submitted and meeting the requirements of the
appropriate bylaws, is considered an "as of right" development.
It simply means the Developer has a right to develop if they
have met the necessary legal requirements.
 The Commission, in
considering an appeal from a decision of a community, first reviews
the decision in terms of whether the appropriate process set out in
and established laws were followed.
A second level of
test utilized by the Commission is the adherence to sound planning
principles. Usually, if
the proper process has been followed and the decision is in keeping
with sound planning principles, the Commission is reluctant to
overturn the decision of the municipal body which is elected by
residents to make such decisions.
In this appeal the
Commission takes comfort in the Official Plan and the Bylaws.
It is clear that such type of development was contemplated at
the time the Official Plan and the zoning was approved.
The zoning and bylaws have been in effect for over eight
years and this is not the only PURD zone in the community.
The proposal meets
all the requirements of the Bylaws.
It can find root in the Official Plan.
(45) The Commission finds
that this earlier case law supports its interpretation of ss.
9(1.1)(b), 15(1)(d), 15(2), and 16 of the
and Executive Council Order EC640/97.
An official plan in Prince Edward Island, upon approval, has
legal effect and is a relevant consideration for a municipality
throughout the planning and development process.
In other words, an official plan is not merely a
recommendation or guideline in our province.
(46) In this case, while
Pine Cone's proposed development for the Property met the technical
requirements in section 17 of the Bylaw, the City was not satisfied
it met other qualitative requirements in the Bylaw aimed at ensuring
compatibility with the existing neighbourhood.
In response, Pine Cone raised the case of MacArthur v.
Charlottetown (City), 2005 PESCTD 37 [MacArthur], as authority for
the proposition that development criteria must be objective in
nature. Paragraph 22 of
the MacArthur decision reads, in part, as follows:
Exactly the same
conclusion may be reached when one examines s. 4.73 of the present
bylaw. Although it
contains a medley of events, circumstances, or things which "in the
opinion of Council" constitute reasons for refusing any development,
it is, in effect, a menu without detail.
It leaves to the exclusive discretion of the members of City
Council of the day the ultimate authority to deny any development
which, in its opinion, falls into any of the myriad of things
contained in s. 4.73.
For example, the development might be inferior to the general
standard of appearance prevailing or intended to prevail in the
area. What does that mean?
Where are the objective criteria for that statement?
Likewise, the development might significantly, or
permanently, injure neighbouring properties by reason of
What does that mean?
And what are the criteria by which it is judged?
When the bylaw refers to such things as traffic generation,
or noise, or vibration, then presumably there are some objective
criteria for that. ...
In my view, this section "Effectively transforms an authority
to regulate by legislation into a mere administrative and
discretionary power to cancel by resolution a right which ... could
only ... be regulated.".
(47) Since the MacArthur
decision, the case law from the Commission has regularly emphasized
to municipalities the need for objective decision-making and not
exercises in subjectivity.
Reliance has been placed on the assessments, opinions, and
reports of trained professionals as opposed to the hue and cry of
neighbours or politicians.
For example, in Biovectra Inc. v. City of Charlottetown,
LA11-01, the Commission stated at paragraph 61:
At common law, a property owner may do with his land what he wishes,
subject to the rights of surrounding property owners, for example,
the law of nuisance. However, these rights may be restricted by
statute, regulation or bylaw. Such restrictions must be expressed
clearly and with solid legislative authority.
To the extent that discretion is permitted by the statute,
regulation or bylaw the wording must be clear and the criteria
discretion is to be avoided.
(48) It is also worth
noting that an as-of-right development was at issue in Biovectra
Inc. v. City of Charlottetown.
The Commission found at paragraph 66 that the development
officer still held a measure of discretion to assess the
application, provided that limited discretion was exercised in a
manner consistent with the principles set out in MacArthur.
The Commission also observed at paragraph 64 that "a
distinction can be made between the mere whim of arbitrary
discretion and the principled discretion of a well trained
(49) This point was also
recently reiterated in Marshall MacPherson Ltd. v. Town of
Stratford, Order LA16-05, where the Council failed to heed the
advice of its professional planner that the development met all of
the technical requirements of the Bylaws and was an appropriate
development based on sound planning principles.
The Commission stated at paragraphs 78 and 83 that objective
evidence is necessary if an "as of right" development is going to be
denied for reasons other than the technical requirements for a zone:
finds that objective evidence supporting bylaw 4.18 criteria must be
present before those Bylaw criteria may be invoked to deny an
A municipal council must meet the duty of fairness in applying its
bylaws. It is not open
for municipal council to exercise arbitrary discretion.
With respect to the
Town's decision of December 9, 2015, the Commission finds that
Council denied MacPherson's concept plan for a multi-unit apartment
condominium development on the Subject Property which is zoned TCMU,
an as-of-right proposal, based on fears and concerns without any
objective evidence to provide support to such concerns.
Council's decision to deny an as-of-right development was not
justified and was not in accordance with the requirements of section
4.18 of the Bylaw because there was no objective evidence to support
the imposition of said section.
Council's decision was not rational and was unreasonable.
Section 3.2.1 of the Official Plan is particularly relevant
to this appeal. It
contains criteria that are measurable, specific, and objective:
goal is to maintain the distinct character of Charlottetown's neighbourhoods, to enhance the special qualities of each, and to
help them adjust to the challenges of economic and social
Our objective is to
preserve the built form and density of Charlottetown's existing neighbourhoods, and to ensure that new development is harmonious
with its surroundings.
policy shall be to ensure that the footprint, height, massing
and setbacks of new residential, commercial, and institutional
development in existing neighbourhoods is physically related to its
policy shall be to establish an appropriate relationship between
the height and density of all new development in mixed-use
residential areas of existing neighbourhoods.
(51) Section 3.2.1 of the
Official Plan forms part of a public document that is accessible to,
and relied upon by, residents, developers, and land owners.
It is also consistent with sound planning principles.
But, most importantly, section 3.2.1 of the Official Plan is
binding upon the City and Pine Cone.
(52) Given that the
Property is zoned R3, Pine Cone has a right to build a multi-unit
However, in addition to meeting the technical requirements for the
zone as set out in section 17 of the Bylaw, the development must
also adhere to the Official Plan, the Bylaw as a whole, and sound
planning principles. Lot
coverage, scale, height, massing, and unique lot features must all
be considered to ensure compatibility and architectural harmony with
the surrounding neighbourhood, which is zoned R1 and consists of
longstanding single family homes.
These considerations must also be based on objective evidence
and, in most cases, professional advice.
In summary, there is a right to develop the Property;
however, that right is not absolute.
(53) In this case, the
Commission finds that the decision made by the City was based on
objective evidence from planning professionals.
The application submitted by Pine Cone was carefully
evaluated by Mr. Forbes, and Mr. Forbes explained his rationale for
refusing to grant a development permit.
Those reasons were directly related to the Bylaw and the
Official Plan. Ms.
Palmer-Thompson performed a second evaluation of the application.
It too was careful and provided a similar rationale for
refusing this particular proposal.
Ms. Palmer-Thompson's report was later considered and
endorsed by Planning Board and, ultimately, by Council.
(54) Both Mr. Forbes and
Ms. Palmer-Thompson are experienced professional planners, and the
Commission finds their evidence to be credible and balanced in this
case. Their evidence
also finds legitimacy in the content of the Official Plan and
reflects sound planning principles.
Pine Cone did not call any contrary evidence from a
professional planner and, based on the record before it, the
Commission accepts the evidence of Mr. Forbes and Ms.
Palmer-Thompson as it relates to land use planning and sound
(55) Before leaving this
subject, the Commission also notes that no challenge has been made
by Pine Cone as to the validity of the Official Plan or sections
4.54.4(c), 4.54.6(f), and 4.62.3(a) of the Bylaw.
Any such declaration would, as was the case in MacArthur,
have to be granted by the Supreme Court of Prince Edward Island.
Absent any such declaration, the Commission must apply the
Bylaw and the Official Plan in their current form and interpret them
in a purposive and contextual way.
(56) In addition to making
decisions animated by sound planning principles, a municipal council
is also obligated to provide reasons for its planning-related
provide a justification to the public and the developer.
They are also a critical part of any review by the
Commission. In Hanmac
Inc. v. City of Charlottetown, Order
LA15-06, the Commission
considered the decision of the Supreme Court of Canada in
Congr�gation des t�moins de J�hovah de St J�r�me Lafontaine v.
Lafontaine (Village), 2004 SCC 48, and stated at paragraph 41:
The direction from
the Supreme Court of Canada is clear: a municipality must carefully
evaluate an application, give reasons when refusing the application
and municipal councillors "must always explain and be prepared to
defend their decisions".
(57) In this case, Mr.
Forbes' letter of June 28, 2016 (Exhibit R3, Volume 3, Tab 105)
refers to specific provisions of the Official Plan and the Bylaw.
For example, it identifies section 3.2.1 of the Official
Plan. The testimony of
Mr. Forbes before the Commission was also consistent with the
content of his letter.
Palmer-Thompson's report dated September 6, 2016 (Exhibit R1, Volume
3, Tab 109) also provided an extensive review of the application and
the various bases for the original decision made by Mr. Forbes.
That report provided, in part, as follows:
It is staff's opinion that these policies and objectives reinforce
the Planner/Development Officer's rationale for rejecting the
application for a building permit for a 27 unit apartment building
at this location. It is
clear that the Official Plan supports infill development within
existing neighbourhoods. However, it also clearly states that infill development must be at a
scale and density that would not cause adverse impacts to adjoining
neighbours. A means of
achieving this would be to design a building or buildings that are
lower rise and that fit into the existing streetscape.
In other areas of the City such as the 500 Lot area, new
infill development is required to go through a design review
process. Whereby the
proposed design of buildings are reviewed by an independent
consultant and the building design, bulk and scale are considered
within the environment that it is to be constructed.
Although the design review process is not required in this
area of the City, the Planner/Development Officer would still apply
similar principles when reviewing the site, massing, placement, bulk
and scale of a development within an existing neighbourhood.
The Official Plan supports mixed forms of housing within existing
neighbourhoods to allow for housing choices.
Housing choices within neighbourhoods are important as they
provide variety for people at various stages of their lives.
Notwithstanding, it clearly states that new development must
be physically related to its surroundings and that there should be
an appropriate relationship between height and density for new
development in existing neighbourhoods.
"Our Policy shall be to ensure that the footprint, height,
massing and setbacks of new residential, commercial, and
institutional development in existing neighbourhoods is physically
related to its surroundings."
Although 11-13 Pine Drive is zoned R-3 and typically
building is considered an as of right use in this zone, an apartment
building of this size, bulk, scale and density immediately adjacent
to low rise single detached dwellings is not consistent with good
planning principles. In
respect to the streetscape it would be difficult for a building with
this bulk, mass and scale to fit into the surrounding streetscape.
Palmer-Thompson's testimony before the Commission was also
consistent with her report to Planning Board.
(60) The reasons provided
by Mr. Forbes and Ms. Palmer-Thompson must be read together with the
minutes of Planning Board and Council.
As the Commission explained in Atlantis Health Spa Ltd. v.
City of Charlottetown, Order
LA12-02 at paragraph 23, "[w]hen
Council follows Planning Board's recommendation, it may fairly be
said that in so doing, Council is adopting the reasoning and
analysis used by Planning Board."
That principle is also applicable in this case.
When the record is read as a whole, the Commission is
satisfied that the City discharged its obligation to provide
substantive reasons for its decision to refuse the application filed
by Pine Cone.
Reconsideration is a strategic decision made by a developer
and may, in appropriate circumstances, result in a different
reconsideration also provides an opportunity for a municipality to
revisit its original decision and address any alleged deficiencies.
In this case, Pine Cone decided to request reconsideration
and, by doing so, the application was reviewed by a professional
planner, Planning Board, and Council.
All of this evidence was contained in the record filed before
the Commission. No
objection was raised by Pine Cone.
When that evidence is reviewed and considered, the Commission
is satisfied that Planning Board and Council evaluated the
application fairly and in accordance with its Bylaw and Official
(62) The law recognizes
that, in some cases, a subsequent hearing or reconsideration
exercise may remedy or cure procedural defects in the original
proceeding. Pine Cone
argues that its initial application was required to be placed before
Planning Board. The
City, on the other hand, stresses that Pine Cone itself wanted a
swift "yes" or "no" decision from the City and that, as part of the
reconsideration process, the matter did go before both Planning
Board and Council.
According to the City, the practical effect of this process was to
"cure" any procedural irregularity in the treatment of the
Commission recognizes that there will be cases where nothing less
than full compliance with all procedural requirements at all stages
of the development process will satisfy the duty of fairness in
However, in the context of this particular case, and the evidence
before the Commission as to the history of this Property and the
expectations of Pine Cone regarding this particular application, the
Commission is satisfied that the City considered the proposal from
Pine Cone in a fair and reasonable manner.
After an independent review of all the surrounding
circumstances, the Commission has decided not to interfere with the
decision made by the City.
(63) For these reasons,
the appeals are denied and the City's decisions on June 28, 2016 and
September 12, 2016, which denied the application by Pine Cone for a
building permit for the Property, are hereby confirmed.
Order denying the appeals
and confirming the City's decisions follows.
Appellant Pine Cone Developments Inc. appealed a June 28, 2016 decision of
the City of Charlottetown to deny an application for a building permit and
also appealed a September 12, 2016 decision of the City of Charlottetown to
deny a request for reconsideration of said earlier decision;
Commission heard the appeal at public hearings conducted in Charlottetown on
January 11, 2017 and February 7, 2017 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
1. The appeals are denied and the City of
Charlottetown's decisions are hereby confirmed.
DATED at Charlottetown, Prince
Edward Island, this 15th day of November, 2017.
BY THE COMMISSION:
J. Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
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.