Docket: LA03005
Order LA03-05

IN THE MATTER of an appeal by Jodi Lund Swyer and Steve Swyer against a decision of the City of Charlottetown, dated June 9, 2003.

BEFORE THE COMMISSION

on Tuesday, the 23rd day of September, 2003.

Ginger Breedon, Chair
Weston Rose, 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

Steve Swyer

Witness:
Phil Wood

2.  For the Respondent

Counsel:
David W. Hooley, Q.C.

Witness:
Don Poole

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 Jodi Lund Swyer and Steve Swyer (the Appellants) against a decision of the City of Charlottetown (the Respondent), dated June 9, 2003.   

[2]  On March 10, 2003, the Appellants filed their original application for a front yard setback variance with the Respondent for property number 257210 located at 31 Desbrisay Crescent (the subject property).  Initially the proposed average front yard setback was 29 feet.  The Appellants subsequently agreed to move their proposed 24 foot by 40 foot single storey home back an additional 12 feet, resulting in a proposed average front yard setback of approximately 41 feet.  This revised application, including letters against the variance received from nearby property owners, was considered by the Respondent's Planning Board (Planning Board).  On June 3, 2003, Planning Board recommended to the Respondent's Council that the application for a variance to the front yard setback be approved for the subject property, resulting in a reduction of the average front yard setback for that property from 60 feet to 41 feet.  

[3]  On June 9, 2003 the Respondent's Council rejected the Appellant's revised application for a front yard setback variance to the subject property. 

[4]  On June 18, 2003, the Commission received the Appellants' Notice of Appeal.  After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on September 9, 2003.

2.    Discussion

Appellants' Submissions

[5]  The Appellants provided written grounds of appeal in their Notice of Appeal and seek the relief set out in that document.  At the hearing, the Appellants emphasized the following points in their oral arguments:

  • The Appellants had purchased two previously subdivided lots: the subject property and the adjacent lot on Duvar Court.  The first home was constructed on the Duvar Court lot.  A variance is necessary to build a house on the subject property that best fits into the area. The proposed home is designed to fit in with the other homes on Desbrisay Crescent.  This is the only design and scale of house which could be built to match the streetscape.  The Appellants could build a 2 or 3 story home with a 24 foot by 24 foot footprint, or even a 24 foot by 28 foot footprint, without the need for a variance.  However, a 2 or 3 story home would not be in keeping with the streetscape on Desbrisay Crescent. 

  • Currently, the subject property is an empty lot and is therefore inconsistent with the streetscape.  The lot serves as a hangout for teenagers and garbage is also dumped on the lot.  The construction of the proposed 24 foot by 40 foot single story home on the subject property would improve the appearance of the neighbourhood and increase the property values of the homes on Desbrisay Crescent.

 [6]  The Appellants called Phil Wood, a well known professional planner, as an expert witness.  Mr. Wood testified as to the suitability of the Appellant's proposed development from a planning perspective.  In so doing, Mr. Wood presented substantial material and opinion on the planning principles and practices that support the proposed development on the subject property. 

 [7]  The Appellants submit that their proposed development is the best available opportunity to properly develop the subject property, with sensitivity to the surrounding area, and request that the Commission grant the requested variance.

 Respondent's Submissions

[8]  The Respondent noted that it is its role in this appeal to take a relatively neutral position and explain the rationale or basis of the Respondent's decision.  The Respondent accepts Mr. Wood as an expert witness.  The Respondent's planning staff and Planning Board had recommended granting the Appellant's variance.  However, the Respondent's Council gave considerable weight to the 19 written objections filed by neighbourhood residents and rejected the Appellant's application for a front yard setback variance.  The Respondent requests that the Commission consider the wishes of the residents as well as the planning evidence provided at the hearing.

3.   Findings

[9]  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.  The reasons for the Commission's decision are as follows:

[10]  Appeals under the Act generally take the form of a hearing de novo before the Commission.  In an often cited decision which provides considerable guidance to 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), Mitchell, J.A. states for the Court at page 7:

…it becomes apparent that the Legislature contemplated and intended that appeals under the Planning Act would take the form of a hearing de novo after which IRAC, if it so decided, could substitute its decision for the one appealed.  The findings of the person or body appealed from are irrelevant.  IRAC must hear and decide the matter anew as if it were the original decision-maker.

[11]  In previous appeals, the Commission has found that it does have the power to substitute its decision for that of the person or body appealed from. Such discretion should be exercised carefully.  The Commission ought not to interfere with a decision merely because it does not like the end result.  However, if the person or body appealed from did not follow the proper procedures set forth in its development bylaw, failed to meet the applicable requirements set out in the Act or apply sound planning principles in considering an application made under a bylaw made pursuant to the powers conferred by the Act, then the Commission shall proceed to review the evidence before it to determine whether or not the application should succeed.

[12] The Commission finds that the above-cited principle applies to a variety of decisions, including the decision to grant or not to grant a variance, made by a decision making body, such as the Respondent, in exercising its powers under the Act. 

[13]  In the present appeal, the Commission is satisfied that the procedural requirements set forth in the Respondent's Zoning and Development By-law (the by-law) were met by the Respondent.  In particular, the requirements for the consideration of a variance noted in section 4.29 of the by-law and those applicable portions of section 4.28 by reference incorporated into section 4.29 were met.  In addition, the Respondent's process appears to be in harmony with the requirements set forth in the Act.

[14]  The Commission, hearing this matter de novo, has had the advantage of the testimony of a well respected professional planner, accepted by the Respondent as an expert witness.  The pith and substance of Mr. Wood's testimony appears to be that the Appellant's proposal to build a small single story home on the subject property would be the best case scenario, or very close to it, from a planning perspective.  The Commission agrees with this reasoning, and notes Mr. Wood's opinion that if the 60 foot front yard setback calculated under the averaging requirement set out in section 13.10 of the bylaw was insisted upon and not moderated through a variance, considerable negative impact on the lots on either side of the subject property could occur in the event future redevelopment was to take place.  Given the small size and shape of these adjacent lots, the continuation of the substantial front yard setbacks could present real difficulties for the owners of these lots. Furthermore, insistence on a 60 foot setback in this case could effectively force a 2 story development on the subject property, which would not require a variance but would be incompatible with the character of the streetscape fronting Desbrisay Crescent.  The Commission considers this reasoning to be fully compatible with the recommendations provided by the Respondent's staff and Planning Board.

[15]  Accordingly, the Commission finds that the Respondent's decision to deny this requested front yard variance was contrary to sound planning principles.  In making this determination, the Commission is guided by the expert testimony before the Commission and the recommendations of the Respondent's staff and Planning Board.  The Commission finds that permitting the requested variance, thereby allowing the proposed development to proceed, would be a sound decision from a land use planning perspective.

[16]   However, while the Commission finds that the variance is necessary for development of the subject property according to sound planning principles, the Commission is also of the view that only a small, single story, single family detached dwelling would be appropriate for the subject property in order to maintain the character of Desbrisay Crescent. The Commission therefore allows the appeal and grants the Appellant's requested variance, subject to the condition that the home to be built conform to that proposed by the Appellant prior to the filing of this appeal. 

4.  Disposition

[17]   An Order allowing the appeal subject to the aforementioned condition will therefore be issued.

Order

WHEREAS Jodi Lund Swyer and Steve Swyer have appealed a decision of the City of Charlottetown, dated June 9, 2003;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on September 9, 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 allowed and the Appellants' application for a variance reducing the required front yard setback from 60 feet to 41 feet be approved, subject to the condition that the home to be constructed conform to that proposed by the Appellants prior to the filing of this appeal.

DATED at Charlottetown, Prince Edward Island, this 23rd day of September, 2003.

BY THE COMMISSION:

Ginger Breedon, Chair

Weston Rose, 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.