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Order

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Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Testimony & Discussion

3.    Findings

4.    Disposition

Order

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Appearances & Witnesses

1.  For the Appellant Jonathan Callbeck

Jonathan Callbeck

2.  For the Respondent Town of North Rustico

Derek French, Development Officer
Patsy Gamauf, Chief Administrative Officer
Heather McKenna, Deputy Mayor 

3.  For the Developer Kelvin McQuaid

Kelvin McQuaid  

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Reasons for Order

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1. Introduction

[1]  The Appellant Jonathan Callbeck ("Mr. Callbeck") has filed an appeal 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, (thee Planning Act).  Mr. Callbeck has appealed a January 27, 2016 decision of the Respondent Town of North Rustico (the "Town") to rezone property number 237347, civic address 108 Church Hill ("the subject property"), currently owned by the Developer Kelvin McQuaid ("Mr. McQuaid") from a Two Family Residential Zone (R2) to a Public Service and Institutional Zone (PSI). 

[2]  On September 3, 2015, Mr. McQuaid, along with a representative of the then owners of the subject property, signed an Application for Permission to Rezone Land (Exhibit R5).  On this application the existing land use was stated as "vacant land R2".  The proposed use was stated as "multi-residential condos/nursing".  The proposed zoning was indicated as "R3" with the letters "PSI" added. 

[3]  The Town published a "Notice of Public Meeting & Special Meeting" in The Guardian on Saturday October 3, 2015 and Monday October 5, 2015.  The Notice provided a map showing the subject property along with adjacent parcel, gave notice of a meeting to be held on Tuesday, October 13, 2015 at 6:00 p.m., provided the location of said meeting and further stated: 

The purpose of the meeting is to allow residents and other interested persons an opportunity to review and make representation concerning the following amendments to the Town of North Rustico Official Plan and Zoning & Subdivision Bylaw and: 

• To change PID# 237347 from R2 Two Family Residential to (R3) Multi Family Residential.

• The purpose of the Rezoning is to construct a Senior's Complex which would house nursing care, community care and independent living.

• To amend to the Official Plan - Concept Plan for Future Land Use Map and Development Bylaw - Zoning Map in order to accommodate the above noted changes. 

Emphasis added.

[4]  The Notice also invited written comments to be filed by mail, email and hand delivery.  The Notice also stated that first reading for the proposed changes would be considered at a meeting of council on October 19, 2015 at 10:00 a.m. at the Town Office with second reading to follow at the Regular Council Meeting on October 26, 2015 at 7:00 p.m. at the Town Office.

[5]  The file record before the Commission reveals that written submissions were filed by members of the public prior to the October 13, 2015 public meeting. 

[6]  At the October 13, 2015 public meeting, Derek French, the Town's Development Officer, gave a slide show presentation with respect to Mr. McQuaid's proposed project.   The floor was opened to the public and Mr. Callbeck and several others provided comments, concerns and raised questions.  The minutes of this meeting are contained in Exhibit R3 of the record before the Commission. 

[7]  The Town sent out a letter to residents of the Town, dated October 28, 2015, which informed the residents that a further meeting would be held on November 5, 2015. 

[8]  On Thursday, October 29, 2015 and on Friday, October 30, 2015, the Town published a new Notice of Public Meeting & Special Meeting in The Guardian advising of a meeting date of November 5, 2015 at 7:00 p.m.  This new Notice is similar to the Notice published in early October, however there are differences: (i) the map is now different showing a noticeably smaller area to be rezoned and (ii) the Notice text indicates that a portion of the subject property is to be rezoned to (PSI) Public Service and Institutional.  By contrast, the text and map of the earlier Notice had described the entire subject property as being rezoned to (R3) Multi Family Residential. 

[9]  This new Notice also invited written comments to be filed by mail, email and hand delivery.  The Notice also stated that first reading for the proposed changes would be considered at a meeting of council on November 9, 2015 at 7:00 p.m. at the Town Office with second reading to follow at the Regular Council Meeting on November 30, 2015 at 7:00 p.m. at the Town Office. 

[10]  At the November 5, 2015 public meeting, the Town's Development Officer gave a slide show presentation to describe the proposed project.   The floor was opened to the public and Mr. Callbeck and several other residents provided comments, concerns and raised questions.  The minutes of this meeting are contained in Exhibit R3 of the record before the Commission. 

[11]  On November 6, 2015, the Town's Planning Board met and unanimously voted in favour of recommending to Council that the subject property be rezoned from "R2 Residential to PSI - Public Service and Institutional". 

[12]  Exhibit R1 contains what appears to be a poster notifying residents of the Town that the meeting for first reading of the rezoning of the subject property will be postponed until further notice. 

[13]  Exhibit R1 also contains the Town's "New Year's Newsletter 2016" which contains, among other notice items, the following notice: 

Rezoning 

The first reading for the rezoning of 108 Church Hill Avenue will be held at the regular council meeting on Monday, January 25th at 7:00PM in the Town Office.  The council has collected all public input so there will be no comments/questions or any public input accepted at this reading.  If a second reading is required, it will be held on Wednesday, January 27th at 10:00AM at the Town Office. 

[14]  At the January 25, 2016 Regular Council Meeting, the first reading of zoning bylaw amendment B-2016-A and official plan amendment #OP-2016-A was carried.  

[15]  At the January 27, 2016 Special Council Meeting, the second reading of zoning bylaw amendment B-2016-A and official plan amendment #OP-2016-A was also carried.  

[16]  On February 17, 2016, the Commission received Mr. Callbeck's Notice of Appeal with attachments, Exhibit A1.  This document was provided to the Town and to Mr. McQuaid.  Commission staff requested a copy of the file record from the Town. 

[17]  On March 16, 2016 the Town provided the file documentation contained in Exhibit R1.  This information was provided to Mr. Callbeck and Mr. McQuaid. 

[18]  On March 21, 2016, the Town provided additional file information to the Commission and this information was provided to the other parties to the appeal. 

[19]  On April 6, 2016, Mr. McQuaid filed a brief written submission with the Commission.  This document was also provided to the other parties to the appeal. 

[20]  On April 18, 2016, Commission staff wrote Mr. Callbeck requesting additional information and requesting that he file specific grounds for appeal. 

[21]  On May 19, 2016, the Commission received Mr. Callbeck's additional information and his specific grounds for appeal Exhibit A2.  This information was provided to the other parties to the appeal. 

[22]  On July 11, 2016, Commission staff contacted Town staff requesting additional documentation such as minutes for additional meetings.  This information was received by the Commission on July 13, 2016 and provided to the other parties to the appeal. 

[23]  On July 12, 2016, Counsel for the Commission sent a letter to Mr. Callbeck, copied to the Town and Mr. McQuaid, advising that grounds 1-3, 13-16, 18, 20 and 21 of the Specific Grounds for Appeal fell outside the Commission's jurisdiction and thus the Commission would not allow those grounds to stand as grounds of appeal and the Commission would not accept evidence or submissions with respect to those arguments.  Counsel for the Commission advised that the Commission was prepared to allow the appeal to go forward only on grounds 4-12, 17 and 19 as listed in Mr. Callbeck's Specific Grounds for Appeal.  Mr. Callbeck agreed to proceed with the appeal on these grounds only. 

[24]  On August 31, 2016 a Notice of Appeal Hearing was sent to all parties formally setting the hearing down for September 21, 2016.  The Commission published a newspaper notice of the hearing in The Guardian on September 14, 2016. 

[25]  The Commission heard the appeal at a public hearing on September 21, 2016.

2.  Testimony & Discussion

The Appellants' Position

[26]  Mr. Callbeck testified and reviewed in detail grounds 4-12, 17 and 19 of his Specific Grounds for Appeal Exhibit A2.  Highlights of Mr. Callbeck's testimony include the following points: 

• Subsection 20.6(2) of the Town's Bylaw requires the person proposing a bylaw amendment or their designate to describe and defend the proposed amendment.  However, at both the October 13, 2015 and the November 5, 2015 public meetings the Town's Development Officer used a slideshow presentation to present Mr. McQuaid's application and proposed project, thus giving the impression that the Town supported the application for rezoning. 

• The minutes of the October 19, 2015 Special Council Meeting sets out the view that the public meeting held on October 13, 2015 "was not a true representation of North Rustico".  No evidence was provided at that meeting as to what a "true representation" was.   

• At the October 20, 2015 office meeting, the minutes suggest that the public meeting had created a problem, the idea emerged of rezoning just part of the subject property and the Mayor seems to be providing advice to address the problem, thus taking over the process. 

• At the October 26, 2015 office meeting it was decided to rezone part of the subject property to PSI and hold a new public meeting on November 5, 2015.  It is submitted that the Town should not be "driving the bus" but rather Mr. McQuaid should have filed a new rezoning application before a new public meeting was to be held. 

• From the minutes of the January 25 and 27, 2016 meetings, it appears that there was no discussion of the motion before Council.  Council approved a rezoning of all of the subject property, not part of the subject property as described in the notices for the November 5, 2015 public meeting.   

• The slideshow / PowerPoint presentation given at the November 5, 2015 public meeting (see page 97 of Exhibit R1) stated that the "subject property will not be rezoned to (PSI) if the Province does not grant the allocations of beds."  This condition was not honoured by the Town. 

• Council had environmental concerns and yet Council decided to rezone the entire property to PSI in January 2016.  

[27]  Mr. Callbeck stated in summary that the whole rezoning process was rushed, the bylaw process was altered, there are trust issues, a subdivision should have occurred prior to attempting to rezone part of the subject property, and the Town had indicated to residents that rezoning was conditional on the Province providing an allocation of nursing beds.  Accordingly, the appeal should be allowed and the Town's decision to rezone the property should be reversed. 

Respondent's Position 

[28]  The Town presented one witness; Derek French ("Mr. French"), the Town's Development Officer.  Mr. French presented a three-page written response (Exhibit R4) to Mr. Callbeck's specific grounds for appeal.  Highlights of Mr. French's testimony include the following points. 

• With respect to grounds #4 and #9 of the appeal, Mr. French acknowledged that Mr. McQuaid's September 3, 2015 rezoning application (the "application") was not in the Town's file presented to the Commission.  Mr. French filed a copy of the application (Exhibit R5).  Mr. French noted that following the approval of the rezoning, Mr. McQuaid would need to apply to have the subject property subdivided.  Mr. French noted that the application was signed by Mr. McQuaid and a member of the family that had owned the subject property at that time.  He noted that the annotation "PSI" was added and initialed by the Town's CAO, Patsy Gamauf ("Ms. Gamauf").  He noted that Ms. Gamauf had previously been directed by the Town to revise the application. 

• With respect to grounds #5 and #17, the proposed rezoning is not located along a coastal area or a watercourse.  The wetland portion of the subject property would be subject to the Province's Environmental Protection Act ("EPA").   

• With respect to grounds #6 and #8, some persons who spoke at the October 13, 2015 public meeting were upset while others who were silent were intimidated and made this known to the Town's Mayor and CAO.  However this was not the only reason for holding a second meeting.  Concerns were raised at the October 13, 2015 meeting that the proposed building might be turned into an apartment building.  As a result of these concerns, Planning Board and Council considered rezoning a portion of the subject property to PSI which would not permit multi family dwellings.  It was decided to hold a second public meeting on November 5, 2015 to present the details of a proposed PSI rezoning. 

• With respect to ground #7, Council did not second the initial rezoning due to the concerns expressed at the October 13, 2015 public meeting referred to above. 

• With respect to ground #10, the map sketch that was used for the newspaper advertisements, the November 5, 2015 public meeting and the later first reading, second reading and adoption and approval of Council, shows only a portion of parcel 237347 as being subject to the rezoning to PSI.   The rezoning would need to be finalized prior to accepting an application to subdivide the subject property. 

• With respect to ground #11, the condition which was represented at the public meeting was: "The Developer will only receive approval on his building application when he secures verification of nursing beds from the Province of Prince Edward Island".  The Town intends to honour this condition.   

• With respect to ground #12, minutes of the January 25 and 27 2016 Council meetings were submitted to the Commission on July 13, 2016. 

• With respect to ground #19, the Town's CAO diligently followed the planning checklists supplied by the Municipal Affairs branch of the Department of Communities, Land and Environment during the processing of this rezoning application. 

[29]  In response from questions from the Commission panel, Mr. French noted that the sketch map, showing only a portion of parcel 237347 to be rezoned to PSI, was attached to Council's motion to approve the rezoning.   

[30]  The Commission panel referred Mr. French to sections 2.25, 2.52, 2.58, 2.72, 2.93, 2.102,  and 17.2 of the Bylaw, and observed that the permitted uses for the PSI zone are very restrictive and do not include a community care facility or a nursing home as permitted uses. 

Developer's Position 

[31]  Mr. McQuaid testified on his own behalf.  The following is a brief summary of his testimony. 

• As of October 13, 2015 he had substantially completed the purchase of the subject property, however the deed had not yet been registered. 

• The September 3, 2015 zoning application was jointly signed by Mr. McQuaid and a representative of the family which then owned the subject property. 

• Mr. McQuaid was agreeable to the Town's suggestion to propose that the rezoning be to PSI rather than to R3.  Mr. McQuaid was agreeable to this change in order to satisfy Mr. Callbeck's concerns. 

• Mr. McQuaid stated that if he wanted to propose a hotel or condominiums he would have applied for them.   

• Mr. McQuaid stated that his intention in seeking to have the subject property rezoned to PSI is to be able to use the property for a community care facility and nursing home.  He stated that if the Provincial government does not provide him with a license for nursing care beds, he will seek to re-zone back to R2. 

• While the Town worked very hard to help solve problems and address concerns, they are not "driving" the development. 

[32]  The Commission panel referred Mr. McQuaid to sections 2.25, 2.52, 2.58, 2.72, 2.93, 2.102 and 17.2 of the Bylaw and asked Mr. McQuaid why he sought to have the lands rezoned to PSI. Mr. McQuaid responded that his intention is to build a privately owned community care and nursing home facility and that the Town recommended the PSI zone for this purpose. He stated that he will be seeking licensing for nursing beds from the Province, as licensed nursing beds are required to make the whole project financially viable. He stated that if he is unable to get the licensing for nursing beds, then he will not be proceeding with the project and will seek to have the property rezoned back to the prior approved use. When the Commission panel pointed out to Mr. McQuaid that the PSI zone restrictions do not appear to allow for development of privately owned facilities like the one proposed by him, he reiterated that he was just following the suggestion of the Town to seek rezoning to PSI zone.

3.  Findings

[33]  After 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. 

[34]  It is well known and accepted that appeals under the Planning Act take the form of a hearing de novo before 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).  The Commission has the power to substitute its decision for that of a municipality.  However, the Commission does not lightly interfere with such municipal decisions. 

[35]  The Commission finds that the two-part test that it has used in the past also serves as a guideline in determining this appeal. 

• Whether the municipal authority, in this case the Town, followed the proper process and procedure as required in its Bylaw, in the Planning Act and in the law in general, including the principles of natural justice and fairness, in making a decision on an application for a rezoning of the subject property; and 

• Whether the Town's decision with respect to the application for rezoning has merit based on sound planning principles within the field of land use and urban planning and as enumerated in the Official Plan. 

[36]  In his September 3, 2015 rezoning application, Mr. McQuaid applied to the Town to rezone the subject property from R2 Two Family Residential Zone to R3 Multi Family Residential Zone.  On this application form, the proposed land use was specified as "Multi-residential condos / nursing". 

[37]  The Town processed the application and issued public notices which provided a map sketch showing all of property number 237347 which was proposed to be rezoned to R3 in order to allow for the construction of a senior's complex which would house nursing care, community care and independent living.  A public meeting was held on October 13, 2015.  Concerns were raised by members of the public.   

[38]  In an effort to address the concerns of its residents that the proposed rezoning could allow developments other than what the Town had contemplated, the Town proposed to Mr. McQuaid that he apply to change the zoning of a portion of the subject property from R2 to PSI Public Service and Institutional Zone, leaving the remainder zoned as R2.  Mr. McQuaid agreed to this suggestion.  The Town instructed its CAO to amend the September 3, 2015 application accordingly.  A new round of public notices was issued which provided a map sketch showing a portion of property number 237347 which was proposed to be rezoned to PSI in order to allow for the construction of a senior's complex which would house nursing care, community care and independent living.  A public meeting for this revised application was held on November 5, 2015. 

[39]  The Town ultimately gave first reading on January 25, 2016 and second reading on January 27, 2016 to the revised rezoning of the subject property. 

[40]  Mr. Callbeck raised numerous grounds for appeal in his original February 17, 2016 Notice of Appeal.  The grounds were set out more specifically as 21 grounds for appeal in his May 19, 2016 Specific Grounds for Appeal (Exhibit A2).  As noted earlier in these reasons, the Commission allowed the appeal to proceed with grounds 4-12, 17 and 19 as listed in the Specific Grounds for Appeal.  Some of these grounds were concerned with missing documentation which was provided by the Town before the hearing, other grounds were addressed by documents and testimony presented by the Town at the hearing.  

[41]  The Commission is left with two concerns.  The first concern pertains to the wording of the Resolution as expressed in the Town's minutes of January 25 and 27, 2016.  The Resolution, as expressed in these minutes, does not state that only a portion of parcel 237347 was to be considered for rezoning.  As a result of this wording, the entire parcel is subject to the proposed rezoning.  The Developer did not request and did not want the entire parcel rezoned. The record and the testimony before the Commission confirms that the intent was to rezone only a portion of 237347 to PSI and that portion was indicated on a map or sketch. 

[42]  The Commission sought and obtained from the Department of Communities, Land and Environment a copy of the resolution actually filed by the Town, the relevant part which states: 

[43] Thus, while the minutes provided to the Commission omitted the word "portion" the Resolution actually filed with the Minister did include this key word.  As well, the Town did indeed attach to the resolution filed with the Minister a map showing the portion of the subject property to be rezoned, which is reproduced below:

[44]  Thus, this first concern has been satisfactorily addressed with the assistance of the Minister's staff. 

[45]  The second concern is that the rezoning of a portion of the subject property from R2 to PSI was approved by the Town for the purpose of constructing "… a Senior's Complex which would house nursing care, community care and independent living".  During the course of the hearing, the Commission panel expressed concern that this three-fold form of senior's care was not a permitted use in the PSI zone as described under section 17.2 of the Town's Bylaw, which reads: 

17.2 PERMITTED USES 

No Building or part thereof and no land shall be Used for purposes other than: 

(1) Institutional Buildings and uses

(2) Group Homes

(3) Civic Centres

(4) Accessory Buildings

(5) Public and Private Parks

(6) Recreational Uses

(7) Clubs

(8) Government Buildings (Federal, Provincial & Municipal) 

[46]  Only permitted uses 1 and 2 could apply to the Developer's plan to build a privately owned senior's complex.  There are definitions in the Bylaw dealing with permitted uses 1 and 2 above which read as follows:    

2.58 "Institutional Use" -means the Use of land or Buildings for non-profit or public purposes including but not limited to, hospitals, government buildings, religious institutions, cemeteries, churches, public schools, colleges, cultural centres, libraries and public recreational and park buildings. 

2.52 "Group Home" - means a residence for the accommodation of four or more persons, exclusive of staff, living under supervision in a single housekeeping unit and who, by reason of their emotional, mental, social or physical condition or legal status, require a group living arrangement for their well-being. A group home does not include a commercial day care centre, or a halfway house or a facility for the temporary use of transient and homeless persons. 

Emphasis added. 

[47]  Based on the section 2.58 definition of "Institutional Use", the first use listed under section 17.2, Institutional Buildings and uses, would not apply to Mr. McQuaid's proposed private development as the Town has defined "Institutional Use" as the use of land or buildings "for non-profit or public purposes". 

[48]  The definition of "Group Home" may apply to part of what Mr. McQuaid has proposed, specifically the independent living or assisted living aspect of his proposed development.  The Town's Bylaw does also define residential care facility which by its definition also includes a group home: 

2.93 "Residential Care Facility" - means a Building or premises licensed by the Province of Prince Edward Island, where accommodation and supervisory and/or personal care is provided or made available for more than three persons and includes a Group Home. 

[49]  However, both the community care and nursing care aspects of Mr. McQuaid's proposal would not fit under the definition of "Group Home" as there are other definitions in the Town's Bylaw which are directly on point, namely: 

2.25 "Community Care Facility" - means an establishment that provides care services for compensation to five or more residents who are not members of the operator's immediate Family but does not, unless otherwise ordered by the Lieutenant Governor in Council, include:

(i) a group home recognized as such by the Minister;

(ii) a residential school;

(iii) an establishment providing accommodation only;

(iv) a hospital;

(v) a correctional institution;

(vi) a facility in which treatment services are provided under the Addiction Services Act R.S.P.E.I. 1988, Cap. A-3;

(vii) a nursing home; or

(viii) a residential institution as defined in Part II of the regulations made under the Welfare Assistance Act R.S.P.E.I. 1988, Cap. W-3 which is operated or funded by the Minister. 

Emphasis added. 

2.72 "Nursing Home" - means a Building, part of Building, or group of Buildings in which, for a fee, charge or reward, direct or indirect, there are housed patients requiring or receiving active treatment for, or convalescing from, or being rehabilitated after illness or injury, but does not include a public hospital, mental hospital, tuberculosis hospital or sanatorium. 

[50]  If the Commission were to uphold the Town's decision to rezone a portion of the subject property to PSI, only the independent living aspect of Mr. McQuaid's project would be permissible, as neither a nursing home nor a community care facility is a permitted use in a PSI zone.  In fact, although the Town's Official Plan speaks to the lack of nursing beds as "most unfortunate" (see page 27 of the Official Plan) and although both Nursing Home and Community Care Facility are defined in the Town's Bylaw neither are  permitted in any of the Town's current zones. 

[51]  A rezoning application requires that the applicant provide a description of the intended use of the property.  The proposed use of a property is a key factor to be considered when deciding a rezoning application.  In the present appeal, the proposed rezoning was advertised, a public meeting held and a decision made by the Town all on the premise that the proposed rezoning would permit the proposed senior's complex project.  However, the Town's PSI zone does not presently permit such use. 

[52]  With respect to the first part of the Commission's two-part test, the Commission finds that the Town failed to follow the proper process and procedure.  The rezoning application stated a proposed use that is not permitted under the Town's Bylaw.  The Town should have proceeded to amend its Bylaw so that the requested use would be a permissible use within the PSI zone.  This error is fatal to the rezoning decision. 

[53]  With respect to the second part of the Commission's two part test, it would be inconsistent with sound planning principles to approve a rezoning which would not permit the land to be used as contemplated by the Developer, the Town and the public. 

[54]  The Commission finds that approving the requested zoning was premature and that the Town must first amend its Bylaw to permit nursing homes and community care facilities in the PSI zone.  The Town should ensure from both a planning and a legal perspective that such an amendment is consistent with the Town's Official Plan. 

[55]  Accordingly, the Commission allows the appeal and quashes the Town's January 27, 2016 decision to change the zoning of a portion of the subject property from R2 to PSI. 

4.  Disposition

[56] An Order quashing the Town's January 27, 2016 decision to rezone a portion of the subject property follows.

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