Title: Order LA05-08 - Docket LA05008 - Planning Appeal - John R. O'Brien et al v. City of Charlottetown (July 22, 2005)

Docket: LA05008
Order LA05-08

IN THE MATTER of an appeal by John R. O'Brien, Tanya O'Brien, Mary Mitchell, Mel Jenkins, Lorna Jenkins, Don Tinney, Audrey Tinney, Rob Lantz, Kelly Lantz, Valerie Kelly, Bruce Beaton and John K. Mitchell of a decision of the City of Charlottetown, dated March 15, 2005.

BEFORE THE COMMISSION

on Friday, the 22nd day of July, 2005.

Maurice Rodgerson, Chair
Norman Gallant, Commissioner
Anne Petley, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    For the Appellants:

Counsel:
John K. Mitchell, Q.C.
Perlene Morrison

Witnesses:
John O'Brien
Robert Lantz
Bryson Guptill

2.   For the Respondent:

Counsel:
David W. Hooley, Q.C.

Witness:
Laurel Palmer Thompson

3.    For the Developer Melanie MacDonald:

Counsel:
Catherine M. Parkman

Witnesses:
Don Poole
Melanie MacDonald

4.    Members of the Public:

Tony Spencely
Helen Blake
Mark Brown
Norman Stewart
Valerie Bruce
Jack Whytock

Reasons for Order

1.  Introduction

[1] This is an appeal filed April 5, 2005 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 R. O'Brien, Tanya O'Brien, Mary Mitchell, Mel Jenkins, Lorna Jenkins, Don Tinney, Audrey Tinney, Rob Lantz, Kelly Lantz, Valerie Kelly, Bruce Beaton and John K. Mitchell (the Appellants) against a decision of the City of Charlottetown (the Respondent) on March 15, 2005 to approve an application by Melanie MacDonald (the Developer) for lot consolidation of provincial parcel numbers 349183, 349175 and 349167 with a subsequent subdivision of the consolidated lot into two new parcels situate at North River Road in Charlottetown. The purpose of the lot consolidation is to allow for the development of a grouped dwellings project consisting of three new semi-detached dwellings on the rear portion of the newly created lot and two existing dwellings on the portion of said lot fronting North River Road (the proposed development).

[2]   After due public notice and suitable scheduling for the parties, the Commission proceeded to hear the appeal on June 10, June 24 and July 7, 2005.

2.  Discussion

Appellant's Position

[3]    In addition to the Appellants' Notice of Appeal (Exhibit A1), the Appellants filed a book of documents (Exhibit A2) and a book of photographs (Exhibit A3). Highlights of the Appellants' extensive oral submissions include:

The Respondent did not give preliminary approval to the lot consolidation and subdivision contrary to the City of Charlottetown Zoning and Development By-law (the Bylaw).

The decision to approve the lot consolidation and subdivision was not "as of right" because the lots were not all owned by the same owner.

The Respondent's Council did not make any decision on this application and this failure of Council to consider the matter is contrary to the Bylaw.

The application was premature and the owners of the parcels now have illegally constituted lots.

The Respondent's decision conflicts with the City of Charlottetown Official Plan (the Official Plan).

[4]   The Appellants request that the Commission allow the appeal and quash the Respondent's March 15, 2005 decision to approve the lot consolidation and subdivision.

Respondent's Position

[5] The Respondent filed a record (Exhibit R1) and a supplementary record concerning the decision under appeal. Highlights of the Respondent's extensive oral submissions include:

While characterized as a lot consolidation and subdivision, the Respondent submits that its decision is in actuality a re-subdivision. In the event that the Commission determines that an error was made pursuant to the application of section 7.3.2.(a) of the Bylaw, any such error is not a fatal flaw and should be remitted back to the Respondent for correction.

The application for the proposed development was "as of right" and in this situation referral to the Respondent's Planning Board was for the purpose of providing some advice to the Development Officer. In this case, advice was sought on sending a letter to nearby residents.

Sections 4.6.1. and 4.7 of the Bylaw apply to the building permit stage and are not germane to the present appeal as no building permit has been issued.

The requirement of Council to make a final decision on the application under section 7.3.6 of the Bylaw only applies to the circumstances referred to in section 7.3.5, that is to say where the zoning is other than R-1 or R-2. In this case, the proposed development is in an R-2 zone and therefore section 7.3.4(a), not section 7.3.6, applies.

Development is defined in section 3.55 of the Bylaw. While a development must be consistent with the Official Plan, the lot consolidation and subdivision, or re-subdivision as the case may be, does not meet the Bylaw's definition of development and therefore consistency with the Official Plan is not yet a factor to be considered. However, in the event the Commission is of the view that the Official Plan should be considered, the Respondent submits that several provisions in the Official Plan support the proposed development.

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

Developer's Position

[7]   The Developer filed a book of documents (Exhibit D2) concerning the decision under appeal. Highlights of the Developer's extensive oral arguments include:

The issue before the Commission is the consolidation of three lots in order to create two new lots through subdivision, one of which will be a large lot used for a future group dwellings project.

By sending a letter to the nearby residents, the Respondent went beyond the minimum requirements of the Bylaw to provide the residents with notice so they would not be notified by "bulldozers in the yard".

The ownership of the consolidated lots will be resolved when it is required, that is to say, before a building permit is issued.

The Respondent's fire, water and sewer departments were all consulted prior to the consolidation and subdivision.

The Brighton area in which the proposed development will be located is already a broad mix of housing types and densities. The proposed development will not be as dense as an apartment building. The Official Plan encourages moderately higher densities and infill development. The proposed development will provide for increased density while maintaining the existing streetscape.

[8] The Developer requests that the Commission deny the appeal.

Members of the Public

[9]   Six members of the public spoke at the hearing, emphasizing the unique character of the Brighton area and outlining their concerns about the effect that the proposed development would have on that neighbourhood.

3. Findings

[10]   After a careful review of the evidence, the submissions of the parties, and the applicable law, it is the decision of the Commission to allow the appeal in part and order that the lot consolidation 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. The reasons for the Commissions decision follow.

[11]   The Commission finds that the technical requirements set forth in the Bylaw for a lot consolidation and subdivision were met by the Respondent. While the Commission has considered the points raised by the Appellants concerning alleged technical breaches of the Bylaw, any such breaches are insufficient by themselves to allow the appeal on these grounds.

[12]   However, the matter before the Commission is a lot consolidation, and that consolidation has a purpose. The Respondent has a responsibility to ensure that purpose is in keeping with the Official Plan. References to various points of the Official Plan have been advanced by all parties to the appeal that could be interpreted as solid support for their position. However, there is no evidence before the Commission that the Official Plan was specifically and fully considered in the processing of this application.

[13]   The matter appears to have moved directly to the specifics and whether or not those specifics met the by-laws. The Commission notes that the Developer has been forthright in providing information on the planned development, and in explaining the proposal to the Development Officers and the community. The Commission supports such openness and believes the Developer has followed the appropriate process.

[14]   The Development Officer, Planning Board, and ultimately City Council should have considered the Official Plan and made a decision as to whether or not the lot consolidation and the development it was designed to accommodate were in keeping with the Official Plan.

[15]   The Commission rejects the argument advanced by the Respondent that the appeal is premature and all the issues could be addressed at the building permit or development agreement stage. Such a process ignores the most fundamental question, and the most important question in the minds of the Appellants – Is such a development appropriate and therefore to be permitted in an historic neighbourhood noted for its stately homes and often larger lots?

[16]   Matters such as the interest in renting such dwellings, access to sewer and water, fire protection and traffic are secondary to the first question and, in the opinion of the Commission, that question should and must be addressed at the initial stage of the application.

[17]   The Respondent has carefully pointed out that the development is not guaranteed, but also indicated that the reasons for asking a variety of questions related to the development was to ensure it could proceed and the developer would not be wasting time and money in consolidating the lots. That is a very laudable and reasonable approach, and that should include consideration of the Official Plan.

[18]   The Official Plan is an umbrella planning document adopted by the City and its residents and designed to guide the development of the City. It would therefore be logical that it would be one of the first factors considered in any change to the existing fabric of the City and its neighbourhoods.

[19]   Official plans are not always specific, and as might be expected both the Appellants and Respondent have referred to specific aspects of the plan which appear to support their positions. The Commission recognizes these differing interpretations, and it is exactly for that reason that the City should have more directly considered the plan at the lot consolidation stage.

[20]   The by-law concerning grouped dwellings obviously anticipated the need for some subjective analysis to be applied to the concept. Section 4.6 1 states "The Development Officer May issue a permit for grouped Dwellings…the city May require a Development agreement..." Section 4.6 4 states "The minimum Lot Area on which grouped Dwellings May be located…" The use of the word "may" does not guarantee such dwellings will be approved by the Development Officer even if they meet the other requirements such as lot size and ownership.

[21]   The Development Officer who initially dealt with the application obviously did not consider this a routine approval. He took the step of having the matter placed on the agenda of Planning Board and based on the minutes of that meeting sought support for the project and support to have neighbours notified.

[22]   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.

[23]   The Commission believes it is appropriate for the Respondent to have the opportunity to formally consider the question of whether or not they wish to support this type of development in this type of neighbourhood. The members of Council are elected to represent all the residents of the Respondent and that includes interpretation of the official plan approved by those citizens.

[24]   The Commission 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.

[25]   A formal decision from the Respondent on the Official Plan would serve as compelling evidence it had been considered and the Commission would require significant reason to overturn such a decision.

[26]   As the Commission has rejected the technical arguments advanced by the Appellants, if the lot consolidation was judged by the Respondent's Council to be in keeping with the Official Plan, the Commission would require compelling evidence to overturn the Respondent's lot consolidation and subdivision decision.

[27]   While recognizing the Respondent's Planning department has been faced with a number of personnel changes, the Commission feels compelled to comment on several aspects of the handling of this file which relate to the operation of the department. These observations are just that, observations. The Commission does not wish to interfere in the management decisions of the corporation but believes the observations might be helpful to those now responsible for this important service to the Respondent's residents.

Decision letters:

[28]   Decision letters should be specific. The letter to the Developer (Exhibit R-1, tab 8) lacks clarity and is therefore open to several interpretations. Words such as "we have offered preliminary advice" are far different from "I hereby grant preliminary approval". Greater clarity in such correspondence would benefit all parties, the decision maker, the body seeking the decision, and any other interested party. The matter is further complicated in this situation because the author of the letter is no longer employed with the Respondent and others are left to attempt to interpret intent. A more clearly worded letter would be of assistance.

[29]   A letter of approval from a professional corporation such as the Respondent should at the very least clearly state that a decision was made, the date the decision was made, the specifics of the decision, the person making the decision and the authority under which they made the decision. For decisions that can be appealed or subject to reconsideration a reference to that process would also be beneficial.   A template for such letters would ensure that the necessary information is provided in a clear manner, and that there is consistency among the various staff members involved in such decisions.

Development Officer Notes:

[30]   Notes regarding the processing of this file appear to be haphazard and left to the judgment of the Development Officer. There does not appear to be any standard form for use of the staff so that any officer is able to quickly assess the standing of a file and the matters being considered. Such a form or check list could indicate the factors the person handling the file considered relevant to the decision making process, and the steps that were followed in processing the file as well as any discussions or inquiries regarding the file. In this case, the information exchange among Development Officers was mostly verbal. This can lead to lack of clarity as the file passes from one person to another.

[31]   The witness for the Respondent indicated that with the exception of the notes from the public meeting her other file notes consisted of hand written, posted notes on the file (Exhibits R-1 tab 41). This appears to be superior to any previous file notes on this application; however the Commission believes it would be more appropriate to have file notes recorded in a standard form in the file. A "note to file" or "memo to file" format is commonly used by municipal staff in other communities and by Provincial Development Officers. This approach would provide a helpful record for the Respondent's other municipal staff, as well as providing a clear record for the Commission or the Courts upon appeal or judicial review. This would serve as a clear record of the decision making process and benefit anyone dealing with the matter.

Planning Board Submissions:

[32]   The need for clarity is also evident in the submission to Planning Board. The wording of the submission lends itself to varying interpretations as to what decision and direction was being sought by the Development Officer. This in turn makes it difficult for a member of Planning Board reading the submission to clearly understand what they are being asked to do; Are they to comment on the application, or limit themselves to a decision on whether to send a letter?

Information letters:

[33]   The Commission commends the Respondent's interest in providing information to neighbours on the proposed development, especially when there is an expectation that it might not be welcomed. Such letters tend to invite input, and if it is the position of the Respondent that such input can't be considered, then the wording of the letter should indicate that position.

Decision Summary

[34]   The Commission finds that an application for lot consolidation and subdivision is, given the facts of the present matter, a mixture of the pure technical requirements for the actual lot consolidation and subdivision with the qualitative weighing of the merits of the concept in relation to the goals and principles of the Official Plan.

[35]   The Commission finds that the technical requirements set forth in the Bylaw for a lot consolidation and subdivision were met. However, the concept of a grouped dwellings residential project in the Brighton area was also partly explored as part of the lot consolidation process. The Commission therefore finds that the Respondent ought to have evaluated the concept to ensure that it is consistent with the Official Plan. There is no evidence before the Commission that such an evaluation was ever done.

[36]   The Commission therefore orders that the lot consolidation and subdivision 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. Once this has been done, the Respondent's decision will be complete and the Commission would require compelling evidence to overturn said decision.

4. Disposition

[37]   An Order allowing the appeal in part, confirming that the Respondent met the technical requirements for approving the consolidation and subdivision and ordering that the Respondent's lot consolidation and subdivision decision in this matter be held in abeyance until such time as the Respondent has made a formal determination as set forth in the Order on whether or not the proposed development is in keeping with the Official Plan will therefore issue.

Order

WHEREAS John R. O'Brien, Tanya O'Brien, Mary Mitchell, Mel Jenkins, Lorna Jenkins, Don Tinney, Audrey Tinney, Rob Lantz, Kelly Lantz, Valerie Kelly, Bruce Beaton and John K. Mitchell have appealed a decision of the City of Charlottetown, dated March 15, 2005;

AND WHEREAS/UPON the Commission heard the appeal at public hearings conducted in Charlottetown on June 10, June 24 and July 7, 2005 after due public notice and suitable scheduling for the parties;

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 in part.

2.    The Commission finds that the technical requirements set forth in the Bylaw for a lot consolidation and subdivision were met by the Respondent.

3.     The Commission orders that the lot consolidation and subdivision decision made by the Respondent in this matter be held in abeyance until such time as the Respondent has made a formal determination on whether or not said decision is in keeping with the Official Plan.

DATED at Charlottetown, Prince Edward Island, this 22nd day of July, 2005.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Norman Gallant, Commissioner

Anne Petley, 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.