Order LA03-03 - Docket LA02014 - Planning Appeal - Doris Jeffery et al. v. Town of Alberton (May 29, 2003)

Docket: LA02014
Order LA03-03

IN THE MATTER of an appeal by Doris Jeffery, James Jeffery, John Jeffery, Deborah Habenicht, Nancy Jeffery-Muehlhauser, Glenn Jeffery and Cathy Dawn Jeffery against a decision of the Town of Alberton, dated December 9, 2002.

BEFORE THE COMMISSION

on Thursday, the 29th day of May, 2003.

Ginger Breedon, Chair
Weston Rose, Commissioner
Norman Gallant, Commissioner

Order

Contents
Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1. For the Appellants

Counsel:
Murray L. Murphy

Witness:
John Jeffery

2. For the Respondent

Counsel:
Krista J. MacKay

Witnesses:
Les Hardy
Craig Oliver
Shane Gillis

Reasons for Order

1.  Introduction

[1]  This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission), pursuant to section 28 of the Planning Act R.S.P.E.I. 1988, Cap. P-8, (the Planning Act), by Doris Jeffery, James Jeffery, John Jeffery, Deborah Habenicht, Nancy Jeffery-Muehlhauser, Glenn Jeffery and Cathy Dawn Jeffery (the Appellants) against a decision of the Town of Alberton (the Respondent), dated December 9, 2002.

[2] The Appellants own land identified as provincial property number 19117 (the subject property) located in the Town of Alberton. On December 9, 2002, the Respondent made the following decision recorded in the minutes of its regular council meeting (Exhibit R17):

"… to enforce the industrial zone by-law on the industrial portion of property tax number 19117 off Main Street due to Clause 11-2 of the Zoning and Subdivision Control By-law notwithstanding the foregoing, any use which is deemed by Council to be obnoxious by reason of sound, odor, dust, fumes, smoke, or as noted in Section 2.51 [sic] shall be denied approval."

[3]  After suitable scheduling for the parties and due public notice, the Commission proceeded to hear this appeal on April 23, 2003.

2.    Discussion

The position advanced by the Appellant

[4] The Appellants provided written grounds of appeal in their December 27, 2002 Notice of Appeal (Exhibit A1) and sought relief as enumerated in said document. At the hearing, the Appellants emphasized the following points in their oral arguments:

Agricultural use of the subject property is a legal, non-conforming use. The burden of proof that this use was discontinued rests with the Respondent, and the evidence does not support such a finding.

The evidence establishes that the subject property was farmed in 2001 and 2002. Section 4.41 (6) of the Respondent's Zoning and Subdivision Control (Development) Bylaw (the Bylaw), which provides that a non-conforming use shall not be permitted if it has been discontinued for a period of twelve months consecutively, first came into effect in October 2000. To establish discontinuance before that date would require the Respondent to establish that the Appellants intended to abandon the use of the subject property. By contrast, Mr. Jeffery testified that the Appellants intended to preserve the subject property as a farm. This intention was followed through by the Appellants renting the parcel for agricultural purposes to Stirling Wilkie, Paul Wilkie and, more recently, to Westech.

The Respondent made its decision in bad faith. While it is not suggested that the Respondent had a wrongful intention in making its decision, it is submitted that their decision was made for a collateral purpose which was not frank or open. The Respondent wished to regulate the use of pesticides, yet lacked the authority to do so. By eliminating agricultural use on the subject property, it could prevent the use of pesticides on that parcel.

Further, the Respondent did not provide the Commission with a copy of its Bylaw under seal and signed, as required under section 63 of the Municipalities Act, R.S.P.E.I. 1988, Cap. M-13 (the Municipalities Act), prior to closing its case at the hearing. Accordingly, there is no proof before the Commission that the Bylaw is in existence and is lawful.

Subsection 15(2) of the Planning Act requires bylaws made to implement an official plan to conform with said official plan, and in the event of any conflict or inconsistency, the official plan prevails. Section 6.1 of the Respondent's Official Plan requires the Respondent's Council to seek the input of Planning Board on matters pertaining to the Plan. It is submitted that the M1 zoning requirements came from the Official Plan and therefore Council had the duty to seek the input of the Planning Board. There is no evidence that Planning Board was consulted and therefore the Respondent's decision is a nullity.

[5]  The Appellants request that the Commission allow the appeal, declare that agricultural use of the subject property is a legal and valid non-conforming use which may continue, declare the Respondent's decision to be null, void and of no force and effect, provide the Appellants' with their costs of the appeal and such other relief as may be just and expedient.

The position advanced by the Respondent

[6] The Respondent emphasized the following points in its oral arguments:

Section 28 of the Planning Act permits a dissatisfied person to appeal to the Commission a council's decision in respect of the administration of a bylaw made pursuant to the powers conferred under the Planning Act. There is no provision to appeal the validity of the bylaw itself to the Commission. As the validity of the Bylaw is not at issue, it is not essential to provide a copy of the Bylaw under seal and signed as specified under section 63 of the Municipalities Act. However, for greater certainty, the Respondent has provided the Commission with a signed copy of the Bylaw, under seal, prior to the conclusion of the hearing.

Section 16.1 of the Bylaw requires Planning Board to review each rezoning request and advise Council accordingly. Section 6.1 of the Official Plan requires the input of Planning Board on matters pertaining to the Plan. While rezoning is a matter pertaining to the Official Plan, the administration of zoning requirements are provided for and implemented through the Bylaw. The rezoning to M1 has been in place for many years, and thus the Appellant's argument that Planning Board had to be consulted prior to the Respondent's December 9, 2002 decision goes beyond the intention of the Official Plan.

From oral testimony heard by the Commission, it is apparent that following the death of Reg Jeffery, the Appellants rented out the subject property to Stirling Wilkie and then Paul Wilkie. The evidence indicates that Paul Wilkie stopped farming about six years ago. Westech commenced utilizing the land in 2001. During the intervening four years, there was no evidence that the subject property was cultivated or had livestock on it. Thus, the land was not farmed for three or four years and therefore the Respondent's decision to enforce the industrial zone provisions contained in section 11.2 of the Bylaw is lawful.

While an intention by a landowner to abandon a property may be required if a bylaw does not specify a time period for a discontinuance, section 4.41 (6) of the Bylaw does provide a twelve month time period for a discontinuance and therefore the intention of the Respondents alone is not enough. The non-conforming use of the subject property is no longer permitted as oral evidence from the Respondent's witnesses reveal that the use has been discontinued for a period of twelve months consecutively.

While the burden of proof of a discontinuance of a non-conforming use of land rests with the Respondent, the Respondent submits that it has satisfied this evidentiary burden. The Respondent's witnesses had the opportunity to observe the subject property on a daily basis, whereas the Appellants' witness only had the opportunity to observe the subject property when he came to visit it.

With respect to the allegation of bad faith, the Respondent submits that the onus rests on the Appellants to prove that the Respondent acted in bad faith. There is no evidence before the Commission that the Respondent acted in bad faith. Legitimate concerns regarding pesticide use and odor from composting were brought to the Respondent's attention. The Respondent did not rezone the subject property in response to these concerns or enact a new bylaw. Rather, the Respondent merely enforced an existing bylaw based on the current zoning of the subject property. There was no collateral purpose as the Respondent moved to enforce an existing bylaw once the non-conforming use had been discontinued.

There is no evidence before the Commission that the Respondent's decision was patently unreasonable. The onus to establish that the Respondent's decision was patently unreasonable rests with the Appellants.

[7]  The Respondent therefore submits that the Appellants have not proven their grounds of appeal and therefore requests that this appeal should be denied.

3.    Findings

[8]   After giving careful and full consideration to the evidence submitted in this case, and upon a review of the applicable law, it is the decision of the Commission to allow the appeal. The reasons for the Commission's decision follow.

[9]  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.

[10] Section 4.41 (6) of the Bylaw reads as follows:

4.41 (6) A non-conforming use of land, buildings or structures shall not be permitted if it has been discontinued for a period of twelve (12) months consecutively, and in such event, the land, building or structure shall not thereafter be used except in conformity with this Bylaw, except if the use would not be detrimental, in the opinion of Council, to the convenience, health or safety or [sic] residents in the vicinity or the general public;

[11]  The Commission has reviewed a certified true copy of the Bylaw and notes that by letter dated October 5, 2000 from Gail A. Shea, then Minister of Community and Cultural Affairs, the effective date of the present Bylaw is October 5, 2000. In response to a request for clarification from Commission staff following the hearing, the Respondent advised that the wording contained in section 4.41 (6) of the 2000 Bylaw does not appear to have been used in the Respondent's previous development bylaw.

[12]  Prior to the Bylaw taking effect on October 5, 2000 the Respondent's Zoning and Subdivision Control Bylaw 1979 (1979 Bylaw) served as the Respondent's development bylaw.   Section 408. (1) of the 1979 Bylaw reads as follows:

408. (1) These regulations shall not apply so as to prohibit a use to which a building, structure, or land is lawfully put at the time these regulations become effective, provided that the use has been continuous since the passing of these regulations.

[13] In Gallant v. Prince Edward Island (Island Regulatory and Appeals Commission) [1997] P.E.I.J. No. 95 Docket: AD-0651, Chief Justice Carruthers noted the following in paragraph 15:

A legal non-conforming use is protected unless it is abandoned as there is nothing in the Planning Act or in the regulations which stipulates that a cessation of use for a specific period of time will, in fact, result in a forfeiture of the right to maintain the non-conforming use.

[14] In City of Saint John v. Killam, [1973] 6 N.B.R. (2d) 642 (N.B.S.C.A.D.), Chief Justice Hughes noted the following in paragraph 8:

A distinction must, I think, be drawn between a provision that the right to a nonconforming use is lost by mere discontinuance and a provision that it is lost by discontinuance for a specified time. In the former, discontinuance may be equivalent to abandonment which requires an intention to abandon, while in the latter, the right to the use is lost merely by ceasing to exercise it for the specified period. In such circumstances "discontinued" is not equivalent to abandonment.

[15] In the Commission's view, both cases cited above are in agreement: where an act, regulations or a bylaw do not set out a specified time frame for discontinuance, an intention to abandon is required. Where an act, regulations or a bylaw specify a time period for discontinuance, a cessation of use for the specific time period results in the loss or forfeiture of the right to maintain the non-conforming use.

[16] The Commission finds that the burden of proof to establish a discontinuance of a nonconforming use rests on the Respondent, based on the civil standard of a balance of probabilities.

[17] In the present appeal, the 1979 Bylaw does not specify a time frame for a discontinuance of a nonconforming use. Thus, under the 1979 Bylaw, the Respondent would have to establish that the Appellants intended to abandon the nonconforming use. The Commission finds that the evidence does not establish that the Appellants had any such intention.

[18] Under the present Bylaw, a specific time frame of twelve months is clearly specified. Therefore, the Respondent would be required to establish that the nonconforming use ceased for a period of twelve months consecutively. The present Bylaw thus relieves the Respondent of the burden of proving that the Appellants intended to abandon the nonconforming use.

[19] The Commission is unable to find any indication in the Bylaw which would support a contention that section 4.41 (6) has retroactive effect. Thus, on October 5, 2000 section 4.41 (6) came into effect and said date reflects the earliest time for the commencement of any twelve month consecutive period for the discontinuance of a nonconforming use.

[20]  Accordingly, it is the use of the subject property from October 5, 2000 onward which is relevant for the purposes of this appeal. The Commission must therefore examine the evidence before it to see if the nonconforming use was discontinued during a twelve consecutive month period after October 5, 2000.

[21]  Upon a review of the evidence, the Commission notes that the Respondent presented testimony from Mr. Hardy, who lives adjacent to the subject property. Mr. Hardy testified that the subject property was "broken up" by Westech in just the last two years, specifically 2001 and 2002. He also testified that compost was spread on the subject property and he had to keep his windows closed in the summer because of the odor.

[22] While there is evidence that farming took place in 2001 and 2002, there is no evidence establishing the specific dates on which this farming activity took place (i.e. when the land was "broken up" or when compost was spread). In the absence of such identified dates, the Commission has no basis on which to conclude that farming was discontinued on the subject property for twelve consecutive months.

[23]  The Commission therefore finds that the Respondent has not established, as required in section 4.41 (6) of its Bylaw, that the nonconforming agricultural use of the subject property ceased for a period of twelve consecutive months. As a result, the Commission finds that the Respondent erred in its decision to enforce the industrial zone provisions contained in section 11.2 of its Bylaw. The appeal is therefore allowed and the Respondent's December 9, 2002 decision concerning this matter is hereby quashed.

[24] With respect to the Appellants' allegations that the Respondent's December 9, 2002 decision was made in bad faith, the Commission finds that the evidence does not support such a finding. While the Respondent did err in making its decision, as noted in paragraph 23 above, the Commission wishes to make it clear that there is no evidence that either party acted in bad faith at any stage of this matter.

[25]  Concerning the other arguments raised by the Appellants in paragraph 4, the Commission makes no findings on these submissions as this appeal is allowed on the basis that discontinuance of the nonconforming use was not established.

[26] With respect to costs, the Commission has never awarded costs to a party to an appeal as it does not have the express statutory authority to do so.

4. Disposition

[27] An Order will therefore be issued quashing the December 9, 2002 decision of the Respondent pertaining to the subject property.

Order

WHEREAS Doris Jeffery, James Jeffery, John Jeffery, Deborah Habenicht, Nancy Jeffery-Muehlhauser, Glenn Jeffery and Cathy Dawn Jeffery have appealed a decision of the Town of Alberton, dated December 9, 2002;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on April 23, 2003 after suitable scheduling for the parties and 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 hereby allowed and the Respondent's decision of December 9, 2002 is quashed.

DATED at Charlottetown, Prince Edward Island, this 29th day of May, 2003.

BY THE COMMISSION:

Ginger Breedon, Chair

Weston Rose, Commissioner

Norman Gallant, 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.