Docket: LA04021
Order LA04-10

IN THE MATTER of an appeal by John Martin (Captain John's Market Inc.) of a decision of the Community of Borden-Carleton, dated July 13, 2004.

BEFORE THE COMMISSION

on Tuesday, the 19th day of October, 2004.

Brian J. McKenna, Vice-Chair
 Kathy Kennedy, Commissioner
George MacDonald, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    For the Appellant       

John Martin

2.    For the Respondent

Charles McNally

Reasons for Order

1.  Introduction

[1]  This is an appeal filed on August 2, 2004 with the Island Regulatory and Appeals Commission (the Commission) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act) by John Martin (Captain John's Market Inc.)  (the Appellant) concerning a decision of the Community of Borden-Carleton (the Respondent) on July 13, 2004 to deny a request by the Appellant for approval of "Light Entertainment" at the Appellant's business enterprise known as the "Abby III" situate on provincial parcel number 380733 located in Borden-Carleton.

[2]  By way of background, the Appellant had previously filed an appeal with the Commission of the Respondent's April 13, 2004 decision to deny a request by the Appellant to rezone property number 380733 from Neighbourhood Commercial (C-1) to Highway Commercial (C-2) and the Respondent also denied a request by the Appellant for an amendment to the Development Agreement between Captain John's Market Inc. and the Community of Borden-Carleton.  In Order LA04-02, the Commission found that it did not have the jurisdiction to hear the appeal because that appeal was not filed within twenty-one days of the decision date as required under subsection 28(1) of the Planning Act. 

[3]  After due public notice, the Commission proceeded to hear the present appeal on September 28, 2004.

2.  Discussion

Appellants' Position

[4]  The Appellant takes the position that parcel number 380733 should either be rezoned to Highway Commercial (C-2) or that the May 28, 2003 Development Agreement should be amended to permit dancing and auditory entertainment.  He noted that he signed the Development Agreement on the basis that it could be amended.  He also expressed his opinion that the Development Agreement represented a "take it or leave it situation".  He noted that the Abby III is 26,000 square feet in size and therefore parcel number 380733 should be zoned for C-2, given that the maximum floor area for a building in the C1 zone is 2000 square feet. 

[5]  The Appellant requests that the Commission rezone his property to C-2, or in the alternative, amend the Development Agreement.

Respondent's Position

[6]  The Respondent submitted that parcel number 380733 is surrounded by residential uses.  It is submitted that C-1 zoning is appropriate to protect the adjacent residential neighbourhood.  The Respondent submits that it previously accommodated the Appellant by amending section 7.1.2 of its Zoning and Subdivision Control Bylaw (Bylaw) to permit a restaurant and farmer's market through a Development Agreement, providing the use would be compatible and not disruptive of the immediate residential neighbourhood.  Prior to the signing of the Development Agreement, the Appellant requested changes to allow for a lounge in conjunction with the restaurant, and thus the wording of the Development Agreement was changed to include "Lounge devoid of dancing and auditory entertainments".

[7]  The Respondent requests that the Commission deny the appeal.

 3.  Findings

[8]  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 appeal.  The reasons for the Commissions decision follow.

[9]  Appeals under the Act generally take the form of a hearing de novo before the Commission.  In a frequently cited decision which provides considerable guidance to the Commission, In the matter of Section 14(1) of the Island Regulatory and Appeals Commission Act (Stated Case), [1997] 2 P.E.I.R. 40 (PEISCAD), Mitchell, J.A. states for the Court at page 7:

it becomes apparent that the Legislature contemplated and intended that appeals under the Planning Act would take the form of a hearing de novo after which IRAC, if it so decided, could substitute its decision for the one appealed.  The findings of the person or body appealed from are irrelevant.  IRAC must hear and decide the matter anew as if it were the original decision-maker.

[10]  In previous appeals, the Commission has found that it does have the power to substitute its decision for that of the person or body appealed from. Such discretion, however, should be exercised carefully.  The Commission ought not to interfere with a decision merely because it disagrees with the end result.  However, if the person or body appealed from did not follow the proper procedures or apply sound planning principles in considering an application made under a bylaw made pursuant to the powers conferred by the Act, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

[11]  With respect to the first part of the  test cited above, while the Commission notes that the minutes of the Respondent's special meeting of Council on April 1, 2003 (contained within Exhibit R6)  suggest that the Respondent may have erred in granting a previous permit to the Appellant, the evidence before the Commission does not support a finding that the Respondent failed to follow the proper procedures in considering the present request by the Appellant for a rezoning to C-2 or an amendment to the Development Agreement.  Based on the evidence presented by the parties, the Commission finds that the Respondent followed proper procedures in addressing the matter presently under appeal.

[12]  Concerning the second part of the test noted above, that is to say whether the Respondent failed to apply sound planning principles in considering the Appellant's request for a rezoning or an amendment to the Development Agreement, there is no expert planning evidence before the Commission to suggest that the Respondent failed to apply sound planning principles in making its decision.  The Commission is satisfied that the Respondent's decision in the present matter was not contrary to the Respondent's Official Plan and Bylaw.

[13]  Upon applying the two part test referred to above, the Commission finds that it should not interfere with the Respondent's decision to reject the Appellants request for a rezoning or an amendment to the Development Agreement.  Therefore, the appeal is denied.

[14]  The Commission also wishes to point out that the Development Agreement is a legal contract between the parties.  This Development Agreement is in accordance with the requirements of the Respondent's Bylaw as amended.  The Commission cannot interfere with a signed contract between the parties.  In the event a party wishes to challenge the validity of that contract, the Commission is not the appropriate forum for such a challenge.

[15]  The Commission wishes, however, to encourage the parties to work together to consider amending the Development Agreement in order to ease the restrictions dealing with "dancing and auditory entertainments" placed on the Appellant's business enterprises located on parcel number 380733, while adhering to the parameters set out in the Respondent's Official Plan and Bylaw which serve to protect the nearby residential area.

4.  Disposition

[16]   An Order denying the appeal will therefore be issued.

Order

WHEREAS John Martin (Captain John's Market Inc.) has appealed a decision of the Community of Borden-Carleton, dated July 13, 2004;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on September 28, 2004 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 denied.

DATED at Charlottetown, Prince Edward Island, this 19th day of October, 2004.

BY THE COMMISSION:

Brian J. McKenna, Vice-Chair

Kathy Kennedy, Commissioner

George MacDonald, 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.