[1]  This is a consolidation of two appeals filed with the Island Regulatory and Appeals Commission (the Commission) on May 27, 2004 under section 28 of the Planning Act R.S.P.E.I. 1988, Cap P-8, (the Planning Act) by Gregg Guptill (LA04018) and John Moore (LA04019) (the Appellants) against a September 15, 2003 decision of the City of Summerside (the Respondent) to adopt zoning bylaw amendment SS-15-A41 to amend the City of Summerside Zoning Bylaw section 18. High Density Residential (R4) 18.4 (b).

[2]  Upon receipt of a copy of the Respondents file, the Commission identified a potential preliminary matter concerning the issue of jurisdiction.  The Commission determined that the issue of jurisdiction would be addressed by way of written submissions and invited the parties to file written submissions.  Written submissions were received from both Appellants on June 18, 2004 and from the Respondent on June 14, 2004.

[3]  This decision relates to the preliminary issue of jurisdiction.

2.    Discussion

Appellants

[4]  The Appellants submit that the Commission has the jurisdiction to hear the appeal.  They submit that the twenty-one day appeal period ought to have commenced on May 13, 2004 when they first became aware of the Respondent's September 15, 2003 decision following the receipt of documents from the Respondent concerning docket LA04002, an ongoing appeal where Mr. Guptill is serving as a representative.  

[5]  In brief summary, the Appellants' submissions include a contention that the Respondent effectively misinformed the public, as the Respondent failed to properly advertise the Respondent's meeting of August 25, 2003 and failed to state the terms of the nature of the proposed bylaw in the text of the newspaper notice.  The Appellants also contend that, under the circumstances, all individuals living within 60 metres of the "targeted properties and all individuals living within 60 metres of any existing R4 properties should have received written notice from the Respondent. 

[6]  The Appellants therefore submit that the entire amendment process was flawed, a state of confusion existed, and therefore the Commission should find that the appeal period did not commence until May 13, 2004 when the Appellants became aware of the Respondent's September 15, 2003 decision.

Respondent

[7]  In brief summary, the Respondent's submissions include a statement that subsection 28(1) of the Planning Act requires an appeal to be filed within twenty-one days of the date of the decision.  The Respondent submits that the "discoverability rule" asserted by the Appellants and enunciated by the Commission in Order LA02-01 (Barry Copeland v. City of Summerside) only applies under extraordinary circumstances. 

[8]  The Respondent therefore submits that the present appeals were filed after the time available under the Planning Act had expired and the Commission lacks the jurisdiction to extend the time for filing an appeal.

3.  Findings

[9]  The Commission has carefully considered both the written documentation submitted to it, and the applicable law.

[10]  The Commission's jurisdiction in appeals under the Planning Act is set out in subsection 28(1), which states:

 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. (emphasis added)

[11]  In the present case, the Commission finds that the Respondent's newspaper notice published in the Journal Pioneer on August 14, 2003 did in fact inform the public in general terms of the nature of the proposed bylaw and the date, time and place of the council meeting at which it would be considered.  The amendment was proposed, not by a specific developer or solely for a specific project, but by the Respondent "to allow flexibility in development standards for apartment buildings".    The newspaper notice  provided details as to how the public could review the application and obtain more information.  There is no evidence before the Commission that the Appellants had contacted the Respondent's staff, or attended the August 25, 2003 public meeting, to seek more information or to inquire as to the purpose of the proposed amendments prior to the Respondent's September 15, 2003 decision.

[12]  In Order LA02-01 (Barry Copeland v. City of Summerside) the Commission noted the following:

(37)  However, in the present appeal, the facts and circumstances are extraordinary.  A state of confusion existed about the meaning of the Respondents August 21, 2000 decision.  The Appellant wrote the Respondent requesting that written clarification be provided to him prior to the expiry of the time limit for an appeal.  The response he received was a copy of the minutes, which included his restatement of what had happened.  The minutes reflect that someone agreed with his restatement.  More importantly, no one disagreed with his restatement.  He therefore concluded that the Respondent agreed with his understanding as to what took place, and decided not to appeal the Respondents decision.

(38)  However, unknown to the Appellant, the Respondent moved to clarify their decision, ultimately leading to a resolution at the September 18, 2000 monthly council meeting.  The minutes of the Respondents Technical Services Committee meeting of September 11, 2000 clearly reflect the fact that the Respondent was aware of the Appellants understanding of their decision: 

Stewart said one of the residents sent a letter wanting to clarify exactly the resolution council passed.  He said before he responded to the letter he listened to the minutes of the tape.  Stewart said he thinks he was advised at the meeting it would be a private driveway and we are saying differently here now.

Yet at no time did the Respondent make the Appellant aware that the matter had been clarified, and that the Appellants interpretation was incorrect.   

[13]  While the Appellants in the present appeal were not aware of the full significance of the Respondent's September 15, 2003 decision, the public was notified of the proposed amendments and the Respondent's decision was made at a public meeting of the Respondent's Council.  Although the public was not provided with much detail concerning the proposed amendments, they were given the opportunity to obtain further information. 

[14]  The Commission finds that the facts and circumstances in the present appeals are not extraordinary and therefore the commencement of the twenty-one day appeal period immediately followed the Respondent's September 15, 2003 decision.  The present appeals were filed well beyond the statutory appeal period and accordingly, the Commission does not have the jurisdiction to hear this appeal. 

4.  Disposition

[15]   An Order finding that the Commission is without jurisdiction to hear these appeals will be issued.

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Order

WHEREAS  the Appellants Gregg Guptill (LA04018) and John Moore (LA04019) have appealed the September 15, 2003 decision of the Respondent City of Summerside to adopt zoning bylaw amendment SS-15-A41 to amend the City of Summerside Zoning Bylaw section 18. High Density Residential (R4) 18.4(b);

AND WHEREAS/UPON the Commission has received and considered written submissions from all parties on a preliminary matter;

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 Commission does not have the jurisdiction to hear this appeal.

DATED at Charlottetown, Prince Edward Island, this 9th day of July, 2004.

BY THE COMMISSION:

Brian J. McKenna, Vice-Chair

Kathy Kennedy, Commissioner

Anne Petley, 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 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.