Contents

Appearances & Witnesses

Reasons for Order

Overview
Decision

Facts

Procedural Background

Issues

Analysis

Interpretation of the Bylaw

Used car sales established is not a permitted use in the Municpality's C1 zone

The Municipality's Position

The Appellant's Position

The Commission's Interpretation

Water and sewer hookup is required in the C1 zone

Other Issues Raised by the Appellant

Completeness of the Record

Allegation of Bias

Conclusion

Order

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Appearances & Witnesses

1.  For the Appellants, 

Representative: Bill Drost

2.  For the Respondent, Resort Municipality

Representative: Jonathan M. Coady
Stewart McKelvey, Barristers & Solicitors

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Reasons for Order

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Overview

1.  This is an appeal by a developer of a July 16, 2018 decision of the Resort Municipality (the "Municipality") to deny an application to develop a used car sales establishment to be located in the Municipality's commercial C1 Zone. The Appellant, Smooth-Coat Drywall Ltd. (the "Appellant"), represented by Bill Drost ("Drost"), asks that the Commission overturn the Municipality's decision and approve its application, albeit without the need for water and sewer hookup. The Appellant argues that the Municipality misinterpreted its Zoning and Subdivision Control (Development) Bylaw (the "Bylaw"), was biased, and failed to provide full and complete disclosure to both it and the Commission.

Decision

2.  The Commission finds that the Municipality properly interpreted the Bylaw in denying the Development Permit Application (the "Application"). Upon a thorough review of the written submissions, appeal record, and oral submissions of the parties at a preliminary hearing, the Commission also finds that the Appellant's allegations of bias and incomplete disclosure are unfounded.

Facts

3. On June 28, 2018, Drost wrote the Chief Administrative Officer of the Municipality (the "CAO") requesting a letter from the Municipality in support of a proposed automobile sales location within the Municipality at parcel PID#92593 (the "Property"). Drost advised that he had entered into a lease with the Property owner, Phillip Gallant ("Gallant"). Drost stated that he intended to "keep up to 20 vehicles on the property for sale" and that no mechanical work would be performed at the site. ¹

4. On July 4, 2018, the Appellant submitted the Application, identifying the type of development as the "establishment of used car sales", at a property located on the west side of Route 6, between PID 706150 and Four Winds Lane².  The Application proposed to move a 10' X 12' building onto the Property to serve as an office. With respect to water and sewerage services, the Appellant marked "na" and "n/a", respectively³. 

5. On July 11, 2018, the Application was considered and denied by the Municipality's planning board (the "Board").⁴  The Board meeting minutes indicate that the Application was denied "based on the fact that it is not a permitted use under the C1 zone".⁵ 

6. On July 16, 2018, the council of the Municipality (the "Council") denied the Application on the basis that it "is not a permitted use under the C1 zone".⁶  

7. On July 17, 2018, a decision letter was issued by the Municipality to Gallant, stating in part: "The property in which you wish to locate a used car sales lot is located in the C1 Zone. The current C1 zone does not allow for a used car sales lot". The Municipality relied on section 10 of the Bylaw.⁷

8. On August 6, 2018, Drost, on behalf of the Appellant, appealed the Municipality's decision to the Commission. The Notice of Appeal alleged that the Municipality erred in interpreting the Bylaw and requested that the Commission reverse the Municipality's decision and approve the Application "without the requirement to connect water and sewer to the sales office building".⁸ 

Procedural Background

9. On August 22, 2018, the Municipality filed the Appeal Record with the Commission.⁹  Following a request for additional disclosure by the Appellant, the  Municipality filed a Supplementary Appeal Record on August 27, 2018 (together, the "Record").¹⁰ 

10. Upon review of the Notice of Appeal and the Record, the Commission was satisfied that the stated grounds of appeal raised matters of legal interpretation, as opposed to matters of both fact and law. As such, the Commission invited the parties to make written submissions with respect to the proper interpretation of the Municipality's Bylaw as it relates to the Application.¹¹   Both parties were afforded the opportunity to file written submissions, including a reply.

11. On September 7, 2018, the parties filed their written submissions with the Commission.¹²  On September 14, 2018, the parties filed reply submissions.¹³  Upon review of the parties' submissions, the Commission determined that a preliminary hearing was necessary to address allegations of bias and non-disclosure raised by the Appellant. The preliminary hearing was held before a full Commission panel on December 13, 2018. Lengthy oral submissions were made by both parties with respect to the allegations. As a result, the Appellant was directed to file a submission listing the bases for the allegations of bias, as well as the evidence it was seeking to compel from the Municipality, and an explanation of its relevance to the matter under appeal. Drost filed this submission on January 11, 2019.¹⁴   The Municipality filed its reply on January 31, 2019.¹⁵ 

Issues

12. The Primary issue in this appeal is:

• whether the Municipality's Bylaw permits a "used car sales" establishment in its C1 Zone.

13. The Appellant also raises three secondary arguments, including:

• whether water and sewer hookup is required in the C1 Zone;

• an allegation of bias on the part of the Municipality in denying the Application; and

• an allegation that the Record filed by the Municipality with the Commission is incomplete.

Analysis

Interpretation of the Bylaw

14. This appeal is primarily a matter of Bylaw interpretation. The parties have each had the opportunity to file written submissions and replies on the proper interpretation of the Bylaw in the circumstances of this appeal. They have also had the opportunity to address the Appellant's assertions of bias and non-disclosure both orally at the preliminary hearing and again in post-hearing written submissions. In the circumstances, the Commission is satisfied that a full oral hearing is not required to dispose of this appeal.¹⁶ 

Used car sales establishment is not a permitted use in the Municipality's C1 zone

15. The primary issue before the Commission is whether a used car sales business is a permitted use within the C1 zone.  Section 10.2 lists various permitted uses within the C1 zone.  The Municipality contends that a used car sales business is not a permitted use under section 10.2.  The Appellant contends that a used car sales business is a permitted use under section 10.2(1) "Retail Stores, Service Shops and Personal Service Shops".

The Municipality's Position

16. The Municipality submitted that a used car sales business does not meet the section 2.90 Bylaw definition of "Retail Store" as the automobiles offered for sale would not be in any building or structure.  The Municipality submitted that a used car sales business falls squarely within the section 2.7 Bylaw definition of "Automobile Sales and Service Establishment" which reads:

2.7 "Automobile Sales and Service Establishment" - means a Building or part of a building or a clearly defined space on a Lot used for the sale and maintenance of used or new automobiles.

17. The Municipality submitted that the Bylaw distinguishes between "servicing and repairing" of automobiles in section 2.8 and "sale and maintenance" of automobiles in section 2.7.  The Municipality submitted that the use of a different word is intended to convey a different meaning.  The Municipality submitted that one common meaning of the word "maintenance" is to preserve, continue or keep up an activity, namely the preservation, continuation or keeping of an inventory of used or new automobiles.

18. The Municipality also cites and discussed various rules of statutory interpretation to support its position. 

19. The Municipality also submitted that the Appellant sought a permit for a use that is expressly defined in the Bylaw while that use is not listed as a permitted use under section 10.2.  The Municipality submitted that, to be consistent with the Commission's decision in Order LA17-03 Jonathan Callbeck v. Town of North Rustico, it cannot approve a defined use that is not listed as a permitted use in the C1 zone.  There is no authorization in the Official Plan for an automobile sales business in the C1 zone.  The Bylaw is the applicable and operational document for this matter.

20. The Municipality noted that the Wikipedia definition of "maintenance" relied upon by the Appellant is actually the definition for "service (motor vehicle)" and not the word "maintenance".

21. The Municipality further noted that the section 2.90 Bylaw definition of "Retail Store" does not include "a clearly defined space on a Lot used for" the offering or keeping for sale of anything.

The Appellant's Position

22. The Appellant submitted that the Municipality's Official Plan does not prohibit motor vehicle sales businesses and encourages new high quality development.  The Appellant stated that there are no auto sales businesses in the Municipality other than occasional "curb siding" auto sales.

23. The Appellant submitted that the proposed used car sales business would be a retail business with a small office.  It would not be solely focused on the seasonal tourism market and would be located outside of the Resort Core Area.

24. The Appellant cited a definition of the word "maintenance" as it applies to automobiles as a "... series of maintenance procedures carried out at a set time interval or after the vehicle has travelled a certain distance."  The section 2.7 definition of an Automobile Sales and Service Establishment requires both "sale and maintenance".  Any maintenance required will be performed off-site.  As only the retail sales of automobiles will be conducted, the definition of "Retail Store" in section 2.90 is more appropriate as automobiles are "articles" and "things" that the Appellant wishes to sell to the public at retail.

25. The Appellant stated that some of the necessary goods and wares, such as keys, ownership documents, advertising materials, customer files, warranty programs and more will be sold inside the office building.  Most of the sales activity will be conducted inside the building.  The Appellant noted that some retail sales commonly occur outside retail buildings in the Municipality and provided examples of this practice.

26. The Appellant submitted that the generic use of the word "maintenance" is not appropriate given that only section 2.7 refers to this word and thus it applies specifically to the act of performing repairs to automobiles.

The Commission's Interpretation

27. The Commission finds that the section 2.7 definition of Automobile Sales and Service Establishment more closely reflects an automobile sales business than the section 2.90 definition of Retail Store as the primary good to be sold, the automobile, will not be offered or kept for sale within the proposed office building. 

28. While the word "maintenance" has many meanings; the preservation, continuation or keeping of an inventory of automobiles is a reasonable and appropriate meaning of the term in the context of automobile sales and assists in distinguishing between an ongoing automobile sales business such as proposed by the Appellant versus the "curb-side" or private sale of used automobiles. 

29. As "Automobile Sales and Service" is not listed among the permitted uses set out in section 10.2 of the Bylaw, the Commission finds that a used car sales business is not a permitted use within the C1 zone.

30. Although the Commission is satisfied that the Municipality properly interpreted and applied its Bylaw in denying the Application, it will, for completeness, address the secondary arguments raised by the Appellant.

Water and sewer hookup is required in the C1 zone

31. The Appellant asks the Commission to reverse Council's decision and approve the development permit "without the requirement to connect water and sewer to the sales office building."¹⁷  The Municipality argues that section 10.8 of the Bylaw requires all developments within the C1 Zone to be serviced by a Central Sewer system (where available) or, alternatively, by an on-site sewage treatment system approved by the Province. It argues that the Bylaw is clear, these services are mandatory, and the Commission, like the Municipality, is bound to apply the Bylaw as written.

32. The Commission agrees with the Municipality. The relief sought by the Appellant - that being an order that water and sewer hookup is not required - is not within the Commission's jurisdiction to grant. The Commission is a statutory body exercising statutory authority conferred on it under the Planning Act.¹⁸  The Commission, like the Municipality, must interpret and apply the Bylaw as drafted. The Commission does not have the authority to order something that is not permitted by the Bylaw.¹⁹  Section 10.8 of the Bylaw clearly requires that a provincially approved on-site sewage treatment system be installed on the Property.

Other Issues Raised by the Appellant

Completeness of the Record

33. In its written submissions to the Commission, the Appellant argues that the Municipality had not provided him or the Commission with full and complete disclosure. It also sought to compel testimony from various municipal officials. This issue was thoroughly canvassed at the preliminary hearing, and the Appellant was afforded the opportunity to provide the Commission with a list of the records he alleged were missing, along with an explanation of their relevance to the appeal. Among other things, the Appellant seeks planning board meeting minutes from July, 2015 onwards, the audio recording of the July 16, 2018 Council meeting, and various email correspondence between councillors and the Municipality's CAO. 

34. Documents pertaining to other unrelated applications do not form part of the Record.  Audio recordings do not form a part of the Record when the sole purpose of such recordings is to assist a municipality in preparing official minutes.  Those official minutes, however, do form an essential part of the Record.

35. The Record commences with the filing of a specific application and concludes with the issuance of an appealable decision.  In some cases, the Record may be extended to include a specific previous application directly pertaining to the same matter. 

36. The Commission accepts that the Record is complete. A bare assertion that a municipality is failing to provide full disclosure and therefore is ‘misleading' the Commission is a serious allegation that requires cogent evidence. Such evidence does not exist in this appeal and the Commission finds that this allegation is entirely without merit.

Allegation of Bias

37. The Appellant alleges that in failing to provide full and complete disclosure (which the Commission finds has not been established), the Municipality was "misleading" the Commission, and that the disclosure of "partial and therefore misleading information" established bias.²⁰  The Appellant also argues that prior, unrelated decisions of the Municipality offer evidence of this bias, in that the Municipality has inconsistently applied the Bylaw and is denying the Appellant what it has otherwise approved for others. Following the preliminary hearing, the Appellant provided the Commission with ten examples of previous Council decisions the Appellant suggested were in support of its position. 

38. In response, the Municipality argues that inconsistency and bias are two distinct and separate issues. The Municipality also argues that past decisions of Council are not only irrelevant to this appeal but also do not demonstrate a pattern of inconsistent decision making or bias, as alleged by the Appellant.

39. Having reviewed the parties' submissions on this issue, the Commission finds that this serious allegation is unfounded. The Commission has already addressed the disclosure issue, which in and of itself has no bearing on the Appellant's allegation of bias.

40. It may be that the Appellant is conflating or otherwise confusing the legal determination of bias in the municipal context with suggested inconsistencies in decision-making by a municipal council. As counsel for the Municipality correctly points out, the Appellant must persuade the Commission that the Municipality closed its mind to the Application.²¹ It has not done so. The evidentiary threshold is high and the burden rests on the Appellant. On this matter the Appellant has not provided any evidence to substantiate the allegation and satisfy the legal test for bias.

41. The ten examples of decisions referenced by the Appellant share a common theme; they are development permits that do not state a specific requirement to connect to water and sewer.  The Appellant takes the position that the Municipality has insisted upon a water and sewer hookup for his proposed development and such position is inconsistent with these ten examples of other permitted developments. 

42. A development permit authorizes the construction of a development, usually a building, based on an application, buildings plans or other filed documentation.  A development permit does not need to specify or list the numerous applicable bylaw requirements.  Compliance with the law in general and applicable bylaw requirements in particular is implicit in the granting of a development permit.  Development permits usually go even further and specify that the permit is subject to compliance with the provisions of a named bylaw. 

43. Thus, the fact that numerous development permits do not, on the face of the permit, state a requirement to connect to water and sewer does not establish inconsistency with the Municipality's water and sewer requirements.

44. Even when inconsistency has been established, inconsistency is not bias. Past decisions of the Municipality are not relevant to the Application or this appeal. They certainly do not, at least in this appeal, establish bias. The Municipality was required to consider the Application individually and on its own merits. Upon a thorough review of the Record, the Commission accepts that the Municipality did just that.

Conclusion

45. The Commission is satisfied that the Municipality properly interpreted its Bylaw in denying the Application. The allegations of incomplete disclosure and bias are unfounded. The appeal is denied and the decision of the Municipality is hereby affirmed.

¹Email correspondence from B. Drost to resortmunicipal@eastlink.ca  - Appeal Record, p.1.
²Development Permit Application - Appeal Record, p.2.
³Development Permit Application - Appeal Record, p.3.
⁴Planning Board Meeting Minutes dated July 11, 2018 - Appeal Record, p.11.
⁵Planning Board Meeting Minutes dated July 11, 2018 - Appeal Record, p.12.
⁶Council Meeting Minutes dated July 16, 2018 - Appeal Record, p.30.
⁷Correspondence from B. MacDonald to P. Gallant dated July 17, 2018 - Appeal Record, p.38.
⁸Notice of Appeal filed August 6, 2018 - Appeal Record, p.53.
⁹Appeal Record.
¹⁰Supplementary Appeal Record.
¹¹Correspondence from the Commission dated August 23, 2018.
¹²Appellant Written Submissions filed September 7, 2018; Municipality Written Submissions filed September 7, 2018.
¹³Appellant Rebuttal Submissions filed September 14, 2018; Municipality Rebuttal Submissions filed September 14, 2018.
¹⁴Appellant Submissions Following Pre-Hearing Conference filed January 11, 2019. 
¹⁵Municipality Reply to Submissions Following Pre-Hearing Conference filed January 31, 2019.
¹⁶In correspondence to the Commission's appeals administrator, Drost has repeatedly asked for a disposition of the appeal in his favour, or, alternatively, a full oral hearing. The Commission is the master of its own procedure. It has provided both parties with the opportunity to make written submissions (both before and after the preliminary hearing) as well as oral submissions at a lengthy preliminary hearing.
¹⁷Notice of Appeal.
¹⁸RSPEI 1988, c P-8.
¹⁹And the Appellant does not suggest that section 10.8 of the Bylaw is ultra vires the Municipality or otherwise contrary to the Planning Act.
²⁰Appellant Rebuttal Submissions field Septempber 14, 2018, pp.10-11.
²¹Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170

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Order

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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, Friday, July 5 , 2019.

BY THE COMMISSION:

J. Scott MacKenzie, Q.C., Chair

John Broderick, Commissioner

Jean Tingley, Commissioner

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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 Court of Appeal upon a question of law or jurisdiction.

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