Docket LA97003
Order LA97-08

IN THE MATTER of an appeal by Keir Clark and Marion Clark against a decision by the Town of Montague dated January 27, 1997.

BEFORE THE COMMISSION

on Friday, the 13th day of June, 1997.

Linda Webber, Chair
Emmett Kelly, Commissioner
Anne McPhee, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion and Findings

4. Disposition

Order

Appearances & Witnesses

1. For the Town of Montague

Legal Counsel:
Alfred K. Fraser, Q.C.

2. For the Appellant

Legal Counsel:
Kenneth A. Clark

Witnesses:
James Coakley
Roy Doyle
Marion Clark
Leonard Munroe
Ian Smith
George Guimond

3. For Atlantic Resorts Ltd.

Witnesses:
Bruce Rourke
Vicki Yap
Lee Yap

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Keir Clark and Marion Clark (the Appellants) against a decision by the Montague Town Council (the Council) to grant a building permit to Atlantic Resorts Limited (ARL), dated January 27, 1997.

The Appellants filed a Notice of Appeal with the Commission on February 11, 1997 (Exhibit 2A10).

The Commission commenced the appeal hearing in Charlottetown on April 15 and reconvened on April 16, 17, 18 and 25, 1997.

2. Discussion and Findings

In accordance with the Planning Act, the Town of Montague Zoning Bylaw (1995) (the Bylaw) and the Town of Montague 1995 Official Plan for Development (the Official Plan), the Montague Town Council has the authority to issue development permits.

The Official Plan was approved by the Minister of Provincial Affairs and Attorney General on August 10, 1995 and the Bylaw was approved by the Minister of Provincial Affairs and Attorney General on October 30 , 1995.

The Appellants' grounds for appeal, as stated in the Notice of Appeal (Exhibit 2A10) are based on various provisions of the Bylaw and the Official Plan. The Appellants' grounds for appeal consist of two parts - the first is based on the merits of the application for a development permit by ARL and the second is based on technical matters as they relate to the Council's approval process.

As a statement of fact, the parties agree that the subject property is located within the Commercial General (C1) Zone.

With respect to this appeal the Commission has decided the following:

A. MERITS OF THE APPLICATION

Ground One - Parking Lots

The Appellants take the position that the parking lots being proposed by ARL do not meet the definition of Parking Area as defined in the Bylaw. The Appellants contend that contrary to the Bylaw provisions, the access to the parking lots would be through an area where parking of motor vehicles is permitted.

The Town submits that the parking lots for the proposed development comply with the provisions of the Bylaw.

ARL submits that the parking lots comply with the provisions of the Bylaw.

In considering this matter, the survey plans (Exhibit 2D29 and 2T17) submitted by ARL with the application for a development permit show that the proposed development will consist of four buildings, each with parking. In Exhibit 2D16 ARL states:

On the Proposed Development Plan, there would be a "33 ft. driveway" leads [sic] to the proposed units' parking lots. This "33 ft. driveway" is connected to Harbour View Drive and the Lobster Shanty Driveway…

According to the Bylaw, Parking Lot (definition #78) means the same as Parking Area, which according to definition #77 is defined as:

Parking Area

… an open area containing parking spaces, other than a street, for two or more motor vehicles, available for public use or as an accommodation for clients, customers or residents and which has adjacent access to permit ingress or egress of motor vehicles to a street or highway by means of a driveway, aisle or maneuvering areas where no parking or storage of motor vehicles is permitted.

The standards for parking areas are set out in Part 5, Section 27 of the Bylaw which states:

Section 27.

Where parking facilities for more than four (4) vehicles are required or permitted:

(a) the parking area shall be maintained with a stable surface that is treated to prevent the raising of dust or loose particles.

(b) the lights used for illumination of the parking lot or parking station shall be so arranged as to divert the light away from the streets, adjacent lots and buildings.

(c) a structure, not more than fifteen (15) feet in height and not more than fifty (50) square feet in area may be erected in the parking area for the use of attendants.

(d) the parking area shall be within three hundred (300) feet of the location which it is intended to serve, and in a zone permitting its use.

(e) when the parking area is of a permanent hard surfacing each parking space shall be clearly demarcated and maintained as such.

(f) no gasoline pumps or other service station equipment shall be located or maintained on the parking lot.

(g) entrance and exit ramps to parking areas shall not exceed two (2) in number and each such ramp shall be a width of twenty-five (25) feet of the street line and edge of pavement.

(h) the width of a driveway leading to a parking or loading area, or of a driveway or aisle in a parking area, shall be a minimum width of ten (10) feet for one-way traffic, and a minimum of twenty (20) feet if for two-way traffic, and the maximum width of a driveway shall be twenty-five (25) feet.

In addition, according to the provisions of Part 22, subsections 6.e) and g) of the Bylaw, plans are to be provided with every application:

Section 6

Every application for development permit shall be accompanied by plans, in duplicate, drawn to an appropriate scale and showing:

…

e) a landscape plan showing the proposed location and dimensions of parking spaces, loading spaces, driveways, and green space areas;

…

g) other such information as may be necessary to determine whether or not every such building, development, reconstruction or redevelopment conforms with the requirements of this By-law.

In order to determine whether the proposed development satisfies the provisions of the Bylaw, the Commission has reviewed the plans (Exhibits 2D29 and 2T17) and supporting documentation submitted by ARL (Exhibits 2A14 and 2D33) which we understand were considered by Council before it decided to approve the development.

Upon review of this information, the Commission finds that it is unable to determine whether the proposed parking lots satisfy the definition of Parking Area as contained in the Bylaw. The plans do not contain enough information to show how adjacent access would provide ingress and egress to a street or highway as there is no indication of where the driveway, aisle or maneuvering areas are located. The plans do not show the dimensions of the parking spaces or driveway pursuant to the provisions of Part 22, subsection 6(e) of the Bylaw. The Commission also finds that the plans do not provide information necessary to determine whether the development conforms with the requirements of the Bylaw pursuant to Part 22, subsection 6(g) of the Bylaw.

In addition, the submission on Atlantic Resorts Ltd. letterhead, entitled POINTS, (part of the material submitted by ARL with the Development Permit Application - Exhibit 2T10), states that: parking is to be greater than two (2) per double unit … i.e., 4 spaces per building - min. On this same exhibit, the plan attached to the Development Permit Application (identified with an "X" through it, with handwritten notations) indicates that parking is for a minimum of 4 cars. On this matter the Commission finds that if the parking is to be for more than 4 vehicles, the proposed 33 foot-wide driveway would contravene the allowable maximum width of 25 feet, pursuant to the provisions of Part 5, subsection 27.(h) of the Bylaw.

While some relevant information may have been provided through the Southern Kings Construction documents (Exhibit 2D33), the evidence in connection with these documents was so confused that it has not been proven that anything from Southern Kings Construction was before Council when it made its decision. The hearing was complicated and lengthened by the Town's apparent inability to determine and produce for the Commission the documentation in front of Councillors at the time the decision was made. New documents kept surfacing, some being produced by Mr. Yap who then gave them to Mr. Munroe who then brought them to the hearing. The Developer did not agree with the Town on what documents were in fact before Council. There is the additional problem of details in construction documents produced by the Developer differing from the ones alleged to have been shown to Council before its decision (Exhibit 2D33). The record is thus so unclear even now that it is not possible to understand exactly what would be built if the Developer obtained its permit or whether the changes to the plans are so significant they could void the initial decision.

Based on the evidence, the Commission finds that ARL's Application for a Development Permit and accompanying plans do not, as submitted, meet the requirements of the Bylaw.

Ground Two - Dwelling Units Not in the Main Building

The Appellants argue that the proposed buildings do not meet the requirements of Part 11, subsection 4.b) of the Bylaw whereby "dwelling units" are to be located "within the main or principle building with a separate entrance". The Appellants submit that the proposed units are dwelling units and are not within the Shanty which is the main or principle building.

The Town submits that the proposed development consists of motel units or cottages which fall within the definition of a Tourist Establishment (definition #108 of the Bylaw). The Town contends that the provisions of Part 5, Section 20 of the Bylaw allow for tourist accommodations in a Commercial Zone and therefore Part 11, subsection 4.b) of the Bylaw is not applicable in this situation.

ARL takes a similar position as that of the Town, and states at page 1, paragraph b. of Exhibit 2D16 - the proposed units are not dwelling units, they are extended "motel and suites units" … hence … paragraph 4.b … does not apply.

According to Exhibit 2T10, ARL made application for a development permit on January 8, 1997 stating that the building is to be used for motel accommodations.

According to the minutes at the special meeting of the Montague Town Council on January 27, 1997, the Town voted to grant a permit to ARL for 4 cottages (Exhibit 2T12). On January 27, 1997 the Town granted a Building Permit to ARL to relocate a building to be used for motel accommodations (Exhibit 2T15).

Throughout the hearing, the "type" of development was referred to as either cottages, dwelling units, motel and suite units or tourist accommodations. Upon reviewing the Bylaw, however, the Commission notes that most of these types of units referred to have a different meaning and different and distinct restrictions apply to each pursuant to the provisions of the Bylaw.

By definition #25, a cottage means:

Cottage

... a dwelling intended for use by no more than one family and designed and built for seasonal or periodic occupancy rather than for permanent year round use by reason of its light frame construction or lack of basement of [SIC] concrete slab foundation or lack of furnace or other facility suitable for winter heating or lack of plastering or other finish on interior walls or ceilings; and shall include a cabin.

By definition #32, a dwelling unit is defined as:

Dwelling Unit

… one or more habitable rooms designed or intended for use by one or more individuals as an independent and separate housekeeping establishment in which separate kitchen and sanitary facilities are provided for the exclusive use of such individual or individuals, with a private entrance from outside the building or from a common hallway or stairway inside the building.

Although motel accommodations is not defined, a motel, by definition #72 means:

Motel

… a building or buildings or part thereof on the same site used to accommodate the traveling public for gain or profit, by supplying them with sleeping accommodation, with or without meals.

In addition, the proposed development was also referred to as a tourist establishment which according to definition #108 means:

Tourist Establishment

… a building or buildings which are used to accommodate the traveling public for gain or profit by supplying them with sleeping accommodation with or without meals, and shall include a guest house, tourist cabin, a motel, an auto court, and a hotel.

In reviewing the Bylaw, the Commission finds that the definitions as stated above are not mutually exclusive and each, in part, may describe the proposed development.

We find the definitions ambiguous and we understand how the Appellants, for purposes of their appeal, could rely on the definition of dwelling unit. However, in deciding whether the proposed development is a permitted use within the General Commercial (C1) Zone, the Commission believes it must rely on the type of development applied for by ARL in its application for a development permit and the type of development for which the permit was issued.

As stated above, according to Exhibit 2T10, ARL applied to develop motel accommodations and the Town issued a permit for motel accommodations (Exhibit 2T15). In considering the definition of motel and giving the customary interpretation to accommodation1, the Commission finds that the proposed development fits within the definition of motel and pursuant to the provisions of Part 12, Section 1, motels are a permitted use within the Commercial General (C1) Zone.

Therefore, the proposed development is not considered a dwelling unit and the provisions of Part 11, Section 4.b) of the Bylaw do not apply.

Ground Three - Dwelling Unit Below Minimum Size

The Appellants rely on the definition of dwelling unit and contend that unit 16 appears to be 320 square feet and does not comply with Part 11, subsection 4.c) of the Bylaw - the requirement that each dwelling unit be 400 square feet in area. As the Commission finds that the proposed development is not considered a dwelling unit, this minimum size requirement pursuant to the provisions of this section do not apply.

Ground Four - Fire Marshall Approval

Once again, as the Commission finds that the proposed development is not considered a dwelling unit the provisions of Part 11, subsection 4.f) of the Bylaw - that each dwelling unit meet the requirements of the Provincial Fire Marshall - do not apply.

Ground Five - Wheel Chair Accessibility

The Appellants argue that the proposed development does not meet the requirements of Part 11, Section 5 of the Bylaw and contend that none of the proposed buildings are accessible to wheel chairs and physically challenged persons.

The Town takes the position that pursuant to the Provincial Building Code Act, R.S.P.E.I., 1988, Cap. P.24 Barrier-Free Design Regulations, rental cottages are exempt from these regulations and therefore the Bylaw provisions requiring wheel chair accessibility do not apply to this proposed development. During the hearing the Town's Development Officer stated that although the buildings are considered commercial buildings it is not up to the Town to decide if the buildings should be wheel chair accessible - these are standards that the developer must satisfy to maintain a tourism rating.

ARL submits that they are complying with the standards as prescribed by Quality Tourism Services Inc. which requires that a minimum of 2% of the units to be wheel chair accessible (Exhibit 2D16 at paragraph e).

This ground of appeal focuses on Part 11. Section 5 of the Bylaw which states:

Section 5

All commercial buildings must be accessible to wheel chairs and physically challenged persons.

According to the evidence presented by George Guimond, a registered Architect in this province (by letter dated February 26, 1997 at page 1 - Exhibit 2A15), it was his opinion that: only one suite, unit #10 was identified as having a handicapped accessible washroom. There is insufficient information to determine whether this suite has been designed to meet the required standard. None of the other suites could be considered accessible with the current layouts indicated.

During the hearing, neither the town nor ARL contested the fact that a number of the proposed units were not accessible by wheel chairs.

As well, there was acceptance of the fact that these buildings are located in a C1 zone. While some of the evidence suggests that some councillors may be of the opinion that Part 11, Section 5 of the Bylaw was never intended to apply to tourist accommodations of this nature, the Commission cannot change the plain meanings of the words written in the Bylaw. Although Council, by the evidence submitted during the hearing, appears to believe that it is able to waive this standard in this instance, the Commission finds that it is mandatory that the proposed development be accessible to wheel chairs and physically challenged persons. Council cannot simply choose to waive a Bylaw requirement, as this would be tantamount to amending a standard required by law - a procedure which requires ministerial approval pursuant to the provisions of the Planning Act.

Although comments were made at the hearing that it would not be reasonable to interpret Section 5 of Part 11 as intending to apply to motel accommodations, there is nothing in the Bylaw that exempts any commercial building. How "reasonable" this may be, is not the issue. This is the Bylaw approved by the Town and the Minister.

The Town is correct in saying that the Provincial Building Code Act, Barrier -Free Design Regulations exempt rental cottages. However the Town has adopted a Bylaw which is more stringent and which requires that all commercial buildings must be accessible to wheel chairs and physically challenged persons.

In this case, the Commission finds that the proposed development does not comply with Part 11, Section 5 of the Bylaw.

Ground Six - Noise and Visual Clutter

The Appellants take the position that the proposed parking lots and buildings do not meet the requirements of Part 11, Section 6 of the Bylaw. The Appellants submit that the materials before the Council or the Development Officer did not provide a sufficient description of what is being proposed by the Developer. The Appellants argue that the Developer does not specify the type of fencing or its height, or the types and heights of trees, plants or vegetation. The Appellants contend that a properly prepared, to-scale diagram was not provided to allow a determination to be made as to whether any noise or visual clutter from the proposed development would be adequately buffered relative to the neighbours.

In the alternative, the Appellants argue that the proposed buffer will not provide an adequate buffer and its configuration creates visual clutter.

The Appellants also contend that the proposed development does not address whether it will protect the quality of life with regards to noise and visual clutter. The Appellants rely, in part, on selected excerpts from the Town's Official Plan for direction as to what constitutes quality of life with regards to noise and visual clutter.

The Town takes the position that the issue of noise and visual clutter was considered by the Town when Council reviewed this application. The Town submits that the Appellants' position is based on problems associated with the existing development and the noise being created by that development. The Town questions whether a permit can be refused simply because of existing noise and a fear that it might increase with a future development.

On the issue of whether or not Council gave consideration to the issue of noise and visual clutter, Leonard Munroe, the Town's Development Officer, stated during the hearing that the Council reviewed the proposal and determined that there would be adequate buffers between the proposed development and adjacent residential properties.

ARL stated during the hearing that it is doing the best it can and continues to try and do better in controlling the noise. ARL questions whether the noise is excessive and contends that the Appellants may have a low tolerance for noise. ARL submits that the Appellants have presented no proof that the proposed development will create noise. ARL does not believe that the cottages will create noise or visual clutter.

This ground of appeal focuses on Part 11, Section 6 of the Bylaw which states:

Section 6

The development must buffer itself from other buildings and dwellings in the area using grassed berms, decorative opaque fencing, trees, plants and vegetation. A development permit will not be issued for any development that does not increase the natural beauty of the area and protect the quality of life with regards to noise and visual clutter.

As well, the issue of buffering is addressed in the Town's Official Plan. At page 24, Policy PP-2B states:

Policy PP-2B

It is the POLICY of the Town Council to require that all residential areas be buffered from any new commercial or industrial development.

In addition, the Official Plan states at page 25:

The Zoning and Subdivision Bylaw will establish minimum standards for buffers between residential and public uses and all commercial and light industrial uses. The buffers will be required to be landscaped and may incorporate any or all of the following elements, opaque fencing, trees, shrubs, grass and berms.

In considering this matter the Commission has reviewed the transcripts of the Council meeting held on January 13, 1997 and the Special Council Meeting held on January 27, 1997.

At the Council meeting on January 13, 1997 (Exhibit 2A14 at Tab 3) Councillor Sullivan raised the issue of "buffer zones" and stated that he did not have this information in front of him.2

During this same meeting Councillor McKay stated that:

…I'd like to see a scale drawing indicating showing exactly where these things are laid out on this whole property. That's not in the plan (inaudible) showing the relation to the people that are behind there. This doesn't tell …from what I see it doesn't tell me whose behind there, what's behind there just tall trees. There is also tall trees on the other side of your property where Mr. O'Halloran is. That doesn't tell me anything.3

Councillor Naddy expressed his concerns with the lack of detail in the plans when he was questioning the developer regarding the location of the cottages. Councillor Naddy asked Mr. Yap where the cottages were going to start. Mr. Yap replied, … somewhere around there. In response Councillor Naddy stated:

Somewhere around there. Somewhere is not enough. You got to know where.4

On January 27, 1997 the Council held a special meeting and discussed, among other items, the proposed development by ARL. The transcript (Exhibit 2A17) indicates that Councillor MacKay stated that he looked at the application and the Bylaws and it passed.5

However, Councillor Mabon expressed concerns about the information and stated:

… I guess I would certainly like to have had the chance to talk to the residents of the area and had a copy of this and might have been a little more specific. I see some green things there but they don't mean that much to me and I think that when we have a situation like this that we have to be reasonably satisfied that the people in the area that they're going to be satisfied with what's going to be built there….6

In addition, according to the Town's submission during the hearing, this application was particularly difficult for Council to deal with. Sometimes referred to as a "moving target", the application continued to evolve from the time the application was first submitted and up to the time the Council made its decision to grant a permit. Even while the Commission was hearing evidence on the appeal the Developer attempted to propose changes to the plan and add details not previously considered by Council. The Commission was left with the impression that there was some confusion on the part of the Town as to what was actually considered by Council before they approved the permit.

Having considered the evidence presented by all parties, we find that the development has not been shown to comply with Part 11, Section 6 of the Bylaw.

Despite the evolution of the application the Commission finds that there continue to be pieces of critical information which ARL has failed to provide.

For example, the Commission believes that there is not sufficient information to determine the dimensions of the green space areas or the berms being proposed and the height and style of opaque fencing which is required in order to ensure that the proposed development would be buffered from the adjacent residential properties. Without such information it is not possible to determine whether or not the development is adequately buffered from other buildings and dwellings in the area.

There are also valid questions raised by the Appellants about the effect of snow removal and dust on their properties, since no buffer at all is proposed between the roadway and the residential properties or between the parking areas and these properties.

When one considers the proximity of the residential neighbourhood adjacent to the subject commercial property, the concerns expressed by the Appellants about the noise, and the fact that there are a number of provisions in the Official Plan and Bylaw which relate to this issue, the Commission is rather surprised at how little attention appears to have been paid to this buffer issue. The minutes of the two Council meetings indicate some discussion of the issue but no real resolution of the matter.

The Commission finds that ARL failed to provide the information, including landscape plans (Bylaw Part 22, ss. 6.e), which is required to make a determination as to whether the proposed development is buffered from the existing buildings and dwellings in the area (Bylaw Part 11, S.6). The Commission believes that this information is necessary to make a reasonable determination as to whether the proposed development conforms with the policies of the Official Plan and satisfies the provisions of the Bylaw as they relate to the issue of noise and visual clutter.

As for the testimony of the Appellants and their witnesses about noise, that testimony was about an existing business, not the one proposed. While it may sometimes be relevant to consider the past behavior of a developer in determining what kind of buffer would be required, the entirely different nature of the proposal for motel accommodations would make such a consideration of little relevance in this case.

In conclusion, the Commission is not satisfied that ARL provided the Council with enough information or that Council gave adequate consideration to this issue. The Commission finds that the requirements of the Bylaw have not been met.

Ground Seven - Insufficient Material

The Appellants submit that the application for a permit does not show sufficient information from which one can make an informed decision. Specifically, the Appellants contend that the application fails to meet the requirements of Part 22, subsections 6 e) and g).

The Appellants contend that with respect to subparagraph e), the landscape plan was insufficient.

With respect to subparagraph g), the Appellants contend that the Developer should have provided additional information which includes:

a) Written confirmation from the Fire Marshall that all aspects of the proposed development will meet his approval;

b) Details of the surfacing of the parking lot;

c) Proper architectural landscape views of the proposed development;

d) Written confirmation from the local law enforcement agency that it has not had to respond to complaints or disturbances about the conduct of persons on the premises of the developer; and

e) Written confirmation from the property owners that they have not been disturbed within the last 12 months.

The Town argues that plans were submitted to the Council in sufficient detail for a decision to be made.

ARL takes the position that it provided sufficient information to the Town.

The Commission refers to its decision with respect to the first and sixth grounds of appeal and its finding that there was insufficient information to determine if the proposed development conforms with certain requirements of the Bylaw. Items "b" and "c" above would be encompassed within those findings. The Commission finds no basis for requiring the information sought in items a, d and e.

B. TECHNICAL MATTERS

The Appellants stated during the hearing that the ground of appeal questioning whether ARL was the registered owner of the property is withdrawn. In addition, the ground related to whether the Town approved a building permit on January 21, 1997 was withdrawn.

Ground One - Nature of the Permit Applied For

The Appellants contend that the document issued on January 27, 1997 is a nullity in that what was being applied for was a "development permit' and what was granted was a "building permit".7

The Town's position on this matter is that this is a technical matter which can be corrected.

ARL made no submission on this matter.

In considering this matter, the Commission notes on Part 5, subsection 1.(a) of the Bylaw:

Subsection 1.(a)

No development shall be undertaken within the corporate limits of the Town of Montague unless a development permit granted by the Development Officer has first been obtained.(emphasis added)

…

During the hearing the Town stated that a development permit is the same and has the same effect as a building permit.

Upon review of the contents of the Building Permit (Exhibit 2T15), the Commission finds that the permit is issued under the authority of the Town of Montague Planning Regulations, but these regulations no longer exist and have been replaced by the Bylaw. In addition, we find that the permit was approved: subject to the provisions of all regulations under Planning By-Law No. 31, governing and affecting such erection or alteration… . However, Planning By-Law No. 31 no longer exists.

The Commission would likely view the issuance of a document entitled "Building Permit" instead of "Development Permit" as a minor technical flaw that could be corrected if this were the only defect in the document. However, the Commission views the citing of completely erroneous authority on the face of the document as a more substantial problem. The authority on which the permit is based no longer exists. For this reason the Commission is of the view that the permit is invalid.

Ground Two - Procedural Requirements Not Met for Decision of Town Council on January 27, 1997

On this matter the Appellants submit that a number of procedural requirements were not complied with, including:

  1. a development control contract was not entered into;
  2. an environmental impact assessment questionnaire was not filed; and
  3. an inspection report was not filed.

The Town submits that a development control contract was entered into and refers to Exhibit 2T10.

The Town takes the position that an environmental assessment questionnaire was not necessary. Mr. Munroe stated during the hearing that as this is a tourist oriented business and this is just an application for an extension - there was no change of use therefore an environmental assessment questionnaire was not necessary.

On the matter of an inspection report, the Town contends that Mr. Munroe made an oral submission before Council and this was enough to satisfy reporting requirements.

ARL argues it was the responsibility of the Town to follow its procedures.

1. A Development Control Contract Was Not Entered Into

The Commission has reviewed the provisions of Part 5, subsection 1(b) of the Bylaw which state:

Subsection. 1.(b)

No development permit shall be issued within the corporate limits of The Town of Montague unless a development control contract is signed by the developer of application and an environmental impact assessment questionnaire has been completed.

A development control contract is defined under Part 2, paragraph 28(d) of the Bylaw as:

Development Control Contract (DCC) is a binding legal contract between the Town of Montague and a developer. The Town of Montague shall agree in the contract to issue a development permit; the developer shall agree with all the terms and conditions necessary to comply with the bylaws for the zone or land use designation area in which the development is located.

Under the Bylaw entitled General Requirements for All Commercial Zones, Part 11, Section 1 states:

In any Commercial Zone, a development permit may only be issued after the applicant has entered into a development conformity contract (DCC) with the Town of Montague.(Emphasis added)

During the hearing Mr. Munroe, on behalf of the Town, submitted that a development control contract was the same as a development conformity contract.

Even if we accept the Town's argument that a development conformity contract is the same as a development control contract, the requirement (by definition 28(d)) has not been met.

The document put forward by the Town as a contract (part of Exhibit 2T10) does not meet the requirements of a "binding legal contract". It is signed only by Lee Yap, witnessed by a Town employee but not signed on behalf of the Town, something that would be required for it to be a "binding legal contract". The document itself has typed on it:

Section 28D - Development Control Contract

EC I Atlantic Resorts Limited agree to comply with all terms and conditions necessary to comply with the Bylaws for the zone or land use designation area in which the development is located

Town agrees to issue said Development Permit.

These words may appear to meet the technical requirements of a development control contract because they essentially repeat what is in the definition of "development control contract". How the community benefits from this contract is unclear since if this is all that is required it is simply a repeat of the already-existing requirement that a developer comply with the Bylaws. A more reasonable interpretation of the requirement for such a contract would suggest that specific terms must be set out in it that are unique to this particular development. For example, the specific requirements, including height, dimensions and type of material necessary to satisfy Part 11, Section 6 of the Bylaw could be set out in such a contract.

However, in this case, we also have the handwritten words beneath the original typed words and signatures. These handwritten words state:

Atlantic Resorts Limited agrees to enter into a formal development control contract, if required by the Town, and further agrees to comply with all of the relevant Bylaws pertaining to the development as presented. In addition, ARL agrees to any special conditions that may be attached to form part of the Development Permit.(emphasis added)

These words indicate that the person signing - Lee Yap - has admitted that the Developer has not yet entered into a development control contract with the Town. However, Part 5, Section 16 of the Bylaw gives no option with respect to entering into such a contract. It says "No development permit shall be issued… unless a development control contract is signed by the developer…". The Town set the rules. The Town cannot waive them at will. Without such a contract the development permit is invalid.

The Commission finds that the evidence shows that ARL had not entered into a Development Control Contract at the time the "building permit" was issued.

2. An Environmental Impact Assessment Questionnaire Was Not Filed

The evidence is clear that ARL did not complete an environmental impact assessment questionnaire.

The Commission finds no authority for Council to waive this requirement.

3. An Inspection Report Was Not Filed

As for the requirement in Part 22, Section 5 that an inspection report be submitted, and the Appellants' argument that this was not complied with, the Commission finds that there is no requirement in the Bylaw that such a report must be in writing. Therefore, the oral report given by Mr. Munroe would meet the requirements of the Bylaw.

Ground Three - Development Permit Issued Conditionally

The Appellants refer to the Building Permit issued on January 27, 1997 (Exhibit 2T15) and argue a development permit cannot be issued conditionally.

The Town's position is that the permit was issued with conditions in order to place some control on the development for the protection of the residents.

ARL submits that it met all the Town's requirements.

The Building Permit (Exhibit 2T15) was issued subject to the following conditions:

The development must buffer itself from other buildings and dwellings in the area using grassed berms, decorative opaque fencing, trees, plants and vegetation.

Once again, the Commission notes that the Town is repeating its Bylaw provisions in documentation external to its Bylaw and we are unsure about the purpose of such repetition. In any event, this statement is merely a declaration that the Bylaw must be complied with and so cannot be viewed as a "condition" in any way altering the permit. Regardless of whether or not this "condition" was attached, all permit holders must comply with all bylaws whether or not this is said on the face of the document. As a result, the Commission need not decide the question of whether or not attaching special conditions to the permit would affect the validity of the permit.

C. OTHER

This hearing was lengthened by testimony in connection with issues the Commission judges to be peripheral to the grounds of appeal. These include:

Gates to Control Traffic

Gates to control traffic on the proposed right-of-way were mentioned on several occasions but since they weren't raised before Council, and their location was never clearly established, the Commission has not considered them in its decision.

Noise from the Pub

As noted elsewhere in this decision, the extensive testimony in relation to noise from the pub operation of ARL was not directly relevant to this appeal. It did, as argued by the Appellants, indicate the background for the level of mistrust between the parties.

Past Non-Compliance

The Appellants produced some evidence of failure by the Developer to comply with the terms of past building permits. We view the matter of non-compliance as a function of bylaw enforcement - a matter to be dealt with by the Town. While it does indicate another reason for mistrust between the Appellants and the Developer, the issue is of no direct relevance to this case.

Allegation of Discrimination

Although ARL raised allegations of discrimination by the Appellants at the hearing, the only evidence produced was the dispute between the residential appellants and the commercial developer.

The Town's Official Plan and Bylaw appear to recognize that adjoining residential and commercial operations are often sources of conflict and for this reason such developments need to be carefully planned. In the circumstances, therefore, it is not surprising to find conflict between adjacent residential and commercial premises.

We do not feel that it would be appropriate for the Commission to deal any further with this allegation. We have accepted the grounds of appeal as submitted by the Appellants as a legitimate exercise of a right of appeal pursuant to the provisions of Section 28 of the Planning Act.

Validity of Documents

Questions were raised about the validity of certain Southern Kings Construction plans filed with the Town by the Developer (Exhibits 2T19, 2D19 and 2D33). However, since the documents referred to are not essential to the decision the Commission need not delve further into this matter.

D. CONCLUSION

When a community adopts an Official Plan and Bylaws, it has a responsibility to ensure that the community's goals, objectives and policies embodied in the plan are implemented through the responsible administration of the Bylaws.

The Town of Montague adopted an ambitious process to develop its Official Plan and Zoning Bylaw and completed this process with the approval of these documents in 1995. The Official Plan's goals, objectives and policies appear to be a reflection of the residents' concerns and chosen future for the development of the Town of Montague.

The Bylaw provides a regulatory regime for the implementation of the Official Plan. Among other matters, the Bylaw sets out mandatory requirements for information to be provided by a developer and the standards that must be adhered to by all who participate in developing the Town. As such, the Official Plan and Bylaw should provide the residents of the Town with some degree of trust and confidence that development will be orderly and controlled, and that development will occur only under certain conditions.

When the Council and a developer fail to comply with the requirements and standards of the Bylaw, public trust and confidence is compromised and residents, business people and the general public become concerned.

Overall, the problems with this application arise out of a failure by the Developer to clearly set out its development plans with sufficient detail to enable Council to make an informed decision, and a failure by the Council to accept as binding parts of its own Bylaw. In the first category, we find the issues of parking lots and noise and visual clutter. In the second category are the matters of wheel chair accessibility, the lack of a development control contract and the lack of an environmental impact assessment questionnaire. The only matter not falling within these categories is the permit itself, which is a technical one requiring the Town to update its forms.

When looked at in this way, one sees that there is not necessarily a problem with the type of development proposed here. After all, the land is zoned commercial and can be developed for commercial purposes so long as the development complies with the provisions of the Official Plan and Bylaw. There is, however, a problem with the way it was presented and handled.

At the Council meeting on January 13th, in response to comments made by Keir Clark, one of the Appellants, Councillor Munroe said:

"…you have to be sure that you know exactly what you're getting into… I will bring everything back to Council before so the residents in the area and Mr. Yap will be very clear what our plans are and everything will be down on paper exactly the way we want it done and that's the only way we'll reason." (Exhibit 2A14, Tab 3, p. 22).

If the details had been made as clear as Mr. Munroe obviously intended, this appeal may not have occurred. Unfortunately, the items of confusion at the meeting were never clarified - according to the evidence heard by the Commission. The minutes of the January 27, 1997 meeting show a concern by some Councillors that nearby residents be protected but no serious attempts appear to have been made to determine how that might be done. The fact that the Developer said he would use berms and buffers and opaque fencing - and that the Bylaw said these were required - appears to have been accepted without any understanding by Councillors that the adequacy of the proposed buffers was also to be decided upon by them. Since the Zoning Bylaw requires such buffers and Council can only approve development that meets that buffering requirement, in the Commission's view Council must consider the type of buffer proposed and whether or not it really will protect nearby residents. That was not shown to have been done in this case. Since Council had no details of height of berm, type of shrub, etc., it could not make a decision on whether the proposed buffers were adequate. In addition, the Councillors do not appear to have at all considered whether the buffer should be between the road and the residents as opposed to between the motel units and the driveway to those units.

The Developer does not appear to understand the significance of the details of the proposed development to any planning decision. Its attempts to change those details - even during the course of the hearing - show this clearly. The public and the Council need to see a clear proposal in order to be able to respond to it. The public and Council need also to be able to rely upon the proposal before them being the one that, if approved, will be implemented.

While the Commission has taken the position that enforcement of bylaws and permits is a Town issue this matter is relevant in apparently being one of the reasons for the appeal. If members of the public do not feel that what is being proposed is clear or that it will be built as approved, they may appeal because of a fear about what might occur. Any developer who wants to avoid such problems will put forward a clear proposal. Then Councillors will be able to carry out their responsibilities and the Community can develop in the manner set out in the Official Plan and Bylaws.

In making this decision, the Commission has given consideration to the fact that the property is zoned for commercial development and there is nothing in principle wrong with the type of development proposed by the Developer. However, both the Official Plan and Bylaw indicate that every reasonable attempt should be made to adequately address the potential impacts the proposed development may have on adjacent residential properties. In this case, we find that the provisions of the Bylaw have not been satisfied and the potential impacts associated with the proposed development have not been adequately addressed.

As a result, based on the evidence submitted by the parties, the Commission must allow the appeal. The standards and requirements of the Official Plan and the provisions of the Bylaw have not been satisfied. Therefore, it is the decision of the Commission to quash Council's decision to issue a building permit for this development.

4. Disposition

For the reasons stated the appeal is allowed and the decision of Council is quashed. An Order will therefore be issued allowing the appeal.

Order

WHEREAS Keir Clark and Marion Clark (the Appellants) have appealed a decision by the Town of Montague dated January 27, 1997;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on April 15, 16, 17, 18 and 25, 1997 after due public notice;

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 and the Building Permit (Serial No. M4-97) issued to Atlantic Resorts Ltd. by the Montague Town Council on January 27, 1997 is hereby quashed.

DATED at Charlottetown, Prince Edward Island, this 13th day of June, 1997.

BY THE COMMISSION:

Linda Webber, Chair

Emmett Kelly, Commissioner

Anne McPhee, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:

12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.

1 Part 2 - of the Bylaw states: for the purpose of this Bylaw, all words shall carry their customary meaning except for those defined hereafter.

2 Exhibit 2A14, at Tab 3, page 9 of the Transcript from the January 13, 1997 Council Meeting.

3 Ibid, at page 15.

4 Ibid, at page 17.

5 Exhibit 2A17, at page 6 of the Transcript from the January 27, 1997 Special Council Meeting.

6 Ibid, at page 9.

7 During the hearing the Appellants amended the Notice of Appeal and stated the date referenced should be January 27, 1997 and not January 21, 1997.