Order LA02-03 - Planning Appeal - Shawn McGee v. Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (March 15/02)

Docket: LA01003
Order LA02-03

IN THE MATTER of an appeal by Shawn McGee against a decision by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated March 28, 2001.

BEFORE THE COMMISSION

on Friday, the 15th day of March, 2002.

Maurice Rodgerson, Vice-Chair
Arthur Hudson, Commissioner
Kathy Kennedy, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Shawn McGee

2.    For the Respondent

Brenda MacDonald
Alton Glenn

3.    Members of the Public

Phil Wood

Reasons for Order

1.  Introduction

(1) This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) by Shawn McGee (the Appellant) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act).

(2)  According to the Notice of Appeal (Exhibit A2) dated April 11, 2001 and other evidence before the Commission, the Appellant is appealing the decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Respondent), dated March 28, 2001, to deny him a sign permit for G. Willikers Ltd. situate on parcel number 232140 (the subject property) located in Cavendish.

(3)  On August 31, 2001, the Commission issued Order LA01-05 with Reasons to dispose of certain preliminary matters.

(4)  After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the present appeal on November 21, 2001.

(5)  During the November 21, 2001 hearing, the Appellant requested an opportunity to file additional written submissions following the conclusion of the hearing. The Respondent did not oppose this request. Following the hearing of evidence from the parties on the merits of the appeal as well as comments concerning the appeal from a member of the public, the Commission considered the schedules of the parties and established February 12, 2002 as the deadline for post-hearing submissions.

(6)  The Respondent filed a post-hearing submission, which included numerous photographs, on January 31, 2002. Commission staff prepared and forwarded a copy of this submission to the Respondent. The Respondent advised Commission staff on February 20, 2002 that it did not intend to make any further submissions on this appeal.

2. Discussion

(7)  The Appellant states in his Notice of Appeal (Exhibit A2) that he wants the Respondent to enforce the Resort Municipality Signage Bylaws 1996 (the bylaw). He requested that the bylaw be “dissolved” if the Respondent was unable to enforce the bylaw. The Appellant submits the following points for the Commission's consideration:

The Appellant operates G. Willikers Ltd. which is a gift shop and a restaurant. In recent years several competing businesses were established with signs that clearly violate the bylaw. In August 2000, the Appellant applied for a sign permit for a new sign. After considering the application for approximately seven months, the Respondent made a decision to deny the Appellant a sign permit.

In May 2001, the Respondent proposed an amendment which would extend by four months the five year deadline set out in the bylaw for non-conforming primary signs. This would extend the deadline from June 2001 to October 2001.

As a result of the effects of his competitor's large, non-conforming signs, the Appellant decided to put up a new sign without a permit. The Appellant notes that, while his previous sign met the bylaw's provisions, his new sign is not in accordance with the bylaw.

The Appellant submits that there are at least 30 other illegal signs in the area, yet the Respondent has failed to enforce its bylaw. However, if the bylaw was enforced, many businesses would suffer financially.

The Appellant believes that the bylaw has serious flaws and should be replaced with a new bylaw prepared with expert assistance. The Appellant notes that the existing bylaw does not reflect the fact that different businesses require different types of signage. For example, a restaurant, which relies mostly on ‘drive by' business, requires a different type of signage than accommodations, which are most often pre-booked.

(8) The Respondent requests that the Commission allow his appeal and grant a remedy as set out in his Notice of Appeal.

(9) The Respondent takes the position that it administered the bylaw correctly and fairly when it made the decision to deny a signage permit to the Appellant. The Respondent states the following points:

The seven month delay referred to by the Appellant was caused by the fact that a sign permit application involves a “dual permit” approach. The application must meet both provincial requirements (under the Highway Advertisements Act, R.S.P.E.I. 1988, Cap. H-4 and the Regulations made under said Act) and the requirements set out in the Respondent's bylaw. The Province has limited staff resources dedicated to signage issues and it was not until the spring of 2001 that a signage official from the Province was able to visit the site of the Appellant's proposed sign. The delay, therefore, was beyond the Respondent's control.

While the Respondent has not as yet removed any signs which are in violation of its bylaw, it has sent letters to businesses which appear to be violating the bylaw. While this does not amount to full enforcement of the bylaw, it does demonstrate that the Respondent is actively enforcing the bylaw. If an alleged sign bylaw violation is brought to the Respondent's attention, the matter is addressed and a site visit will be made. The Respondent is awaiting a review of signage laws by the Province before proceeding with further changes to the bylaw.

There are many businesses within the Respondent's geographic area which are in full compliance with the bylaw.

(10) The Respondent requests that the Commission deny the appeal, as the Respondent properly administered its bylaw when it made the decision to deny a signage permit to the Appellant.

(11) Phil Wood, as a member of the public, voiced the concern that the Commission may not have the jurisdiction to hear this appeal. He noted that signage issues could have been included in the Respondent's development bylaw, but the Respondent made a conscious effort not to do so. He noted that in the past, the Respondent was not aggressively enforcing its sign bylaw because of uncertainties with respect to its jurisdiction, given that the Province also has jurisdiction over signage under the Highway Advertisements Act. Mr. Wood also suggested that the Province has not been providing much guidance on the signage issue.

3. Findings

(12) After giving thorough consideration to the evidence and submissions presented in this appeal, and upon review of the applicable law, it is the decision of the Commission to deny this appeal. The reasons for the Commission's decision follow.

(13) The Commission notes that it has previously found that it has the jurisdiction to hear this appeal. The reasons for the Commission's findings on the issue of jurisdiction were presented in considerable detail in Order LA01-05 which was issued on August 31, 2001, following a public hearing of the jurisdictional issue.

(14) The Commission, as an appellate body, has the power to hear the evidence and arguments presented by the parties and decide whether to allow or dismiss an appeal. The Commission must apply the law as it currently exists.

(15) Subsection 28(1) of the Planning Act reads as follows:

28. (1) Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission.

(16) As noted in Order LA01-05, the Respondent has full statutory authority to adopt a bylaw with respect to signage within the boundaries of its community. The bylaw is consistent with the relevant purposes set out in the Respondent's Official Plan. However, subsection 28(1) of the Planning Act does not subject the bylaw itself to scrutiny. The bylaw is presumed to be lawful. It is only the decision made as a result of the administration of the bylaw that is subject to appeal. The test therefore becomes, did the Respondent follow its bylaw when it decided not to issue a signage permit to the Appellant?

(17) A review of the evidence suggests that the Respondent did correctly follow and apply the bylaw when it refused to issue a signage permit to the Appellant. The Appellant has conceded that his new sign is not in accordance with the bylaw. A review of the Appellant's August 28, 2000 Signage Application (Exhibit A7) reveals that his proposed sign significantly exceeded the 32 square foot maximum provided for primary signs under section 4.6 of the bylaw. A review of the denied Signage Application (Exhibit R4) reveals that the application was submitted to the Respondent's Planning Board on September 13, 2000. While larger and internally lighted signs may be permitted by “Special Permit” under section 4.1, this is at the discretion of the Respondent.

(18) In the Appellant's Notice of Appeal (Exhibit A2) he states the relief or remedy he is seeking:

I want the Resort Municipality to enforce their signage bylaws and if they are unable to enforce their signage bylaws, I want the signage bylaws dissolved.

(19) The Commission notes the following statement contained in Ian MacF. Rogers, Q.C., Canadian Law of Planning and Zoning, (Toronto: Carswell, 1973 [updated to 2002-Release 1]) at 250:

Until recently it had been held that there was no obligation imposed on a local authority, in the absence of an express statutory requirement, to enforce a by-law which it has enacted in the exercise of a discretionary power.

(20) The author then directs the reader's attention in a footnote to Kamloops v. Nielsen [1984] 2 S.C.R. 2 and states:

The Supreme Court of Canada has changed the law by declaring that a municipality and its officials incurred a private law duty of care to protect persons whose relationship to it was sufficiently close that they would foreseeably be injured by a failure on its part to enforce its by-law in the absence of a conscious policy decision not to act taken in the bona fide exercise of discretion.

(21) The Commission notes that, unlike the courts, it does not have the jurisdiction to consider a duty of care which forms an essential ingredient in the law of negligence, part of the common law. Subsection 24. (1) of the Planning Act gives the Respondent the discretionary authority, “may be enforced”, over a bylaw relating to planning matters. Therefore, for the purpose of this appeal, the Commission finds that under the Planning Act, there is no obligation imposed on the Respondent to enforce its bylaw.

(22) While the Respondent is not obligated to enforce its bylaw, the Respondent does have the legal authority to enforce its bylaw. The evidence indicates the Respondent specifically sought the legal authority to implement the bylaw, and is interested in enforcing it as a component of the vision for the Resort Municipality.

(23) The Appellant is justified in demanding fairness and the Commission believes that in enforcing the bylaw the Respondent has a duty to enforce it fairly and uniformly.

(24) In this specific case should the Respondent decide to enforce its bylaw against the Appellant with more vigour, it also ought to equally enforce the bylaw against other persons who are violating the bylaw in a similar manner. Ultimately, respect for any law is enhanced and maintained through fair application and enforcement.

(25) As the Respondent made its decision to deny the Appellant a signage permit after properly following its bylaw and has not taken any enforcement action that places the Appellant in an unfair situation, the Commission finds that the Respondent made no error in the administration of its bylaw and accordingly, the appeal is denied.

4. Disposition

(26) An Order denying the appeal will therefore be issued.

Order

WHEREAS Shawn McGee has appealed a decision made by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated March 28, 2001;

AND WHEREAS on August 31, 2001, the Commission issued Order LA01-05 finding that it has the jurisdiction to hear this appeal;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 21, 2001 after due public notice and suitable scheduling for the involved 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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 15th day of March, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Arthur Hudson, Commissioner

Kathy Kennedy, 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.