Dockets: LA04004
Order LA04-06

IN THE MATTER of an appeal by Roy Coffin, Danny Larter, Darin Meek and Ron Russell against a decision of the City of Charlottetown, dated February 9, 2004.

BEFORE THE COMMISSION

on Thursday, the 19th day of August, 2004.

Maurice Rodgerson, 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

        Roy Coffin

2.    For the Respondent

Counsel:
David W. Hooley, Q.C.

Witnesses:

Hap Stelling
Ira Birt

3.    For the Developer, The Bedford MacDonald Trust Inc.

Morris McIntyre

Witnesses:
Katherine MacInnis
Dorothy Gogan

Reasons for Order

1.  Introduction

[1]  This is an appeal filed February 27, 2004 with the Island Regulatory and Appeals Commission (the Commission) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act) by Roy Coffin, Danny Larter, Darin Meek and Ron Russell (the Appellants) against a decision of the City of Charlottetown (the Respondent) on February 9, 2004 to approve an application with variances by The Bedford MacDonald Trust Inc. (the Developer) for an emergency/transition facility on provincial parcel number 345074 situate at 184 Weymouth Street (the proposed development).

[2]  After due public notice and suitable scheduling for the parties, the Commission proceeded to hear the appeal on June 21 and 22, 2004.

2.  Discussion

Appellants' Position

[3]  The Appellants set out their detailed grounds for appeal in a four page document attached to the Notice of Appeal. Highlights of the Appellants' closing arguments follow.

·   The Notice of Appeal sets forth five major areas where the Respondent deviated from its Zoning and Development Bylaw (the Bylaw).

·  With respect to the second ground for appeal, dealing with conflict of interest, the Appellants acknowledge that Councillor MacFayden was never a member of the Developer's Board of Directors and the Appellants apologize for that error.

·   The Appellants submit that there were several incomplete forms filed with the Developer's application which amount to minor errors.

·   The Appellants submit that the Respondent must follow all requirements set out in its Bylaw.  The Appellants are concerned with the degree and frequency with which the Respondent violated its Bylaw. The Appellants submit that the variances granted by the Respondent were excessive.

·   The Appellants submit that the Respondent rushed to process the application prior to a February 2004 Federal Government funding deadline.  While the Appellants sympathize with the concern that funding might have been revoked, the Respondent must follow all of its Bylaw requirements.

·  The Appellants state that they are not opposed to an emergency/transition facility provided all requirements of the Bylaw have been met without the issuance of any variances.

[4] The Appellants request that the Commission allow the appeal and quash the Respondent's February 9, 2004 decision to approve the proposed development and grant variances for said development.

Respondent's Position

[5] The Respondent submits that the Bylaw was adhered to and that the variances granted were appropriate.  Highlights of the Respondent's closing argument follow.

·    Variances are an appropriate component in all development bylaws.  A development bylaw serves to implement the broad policies set out in a municipality's official plan.  Variance provisions give flexibility to avoid the harshness of strict application of a development bylaw.  This is especially important in areas of a municipality with long established neighbourhoods.

·   The Respondent submits that only subsection 4.28(2) of the Bylaw, the mailout process, is brought into section 4.29.  Accordingly, subsection 4.28(3) does not apply to the matter under appeal.  Further, it is submitted that a reasonable interpretation of subsection 4.29(2) is to allow fourteen days to pass, not fourteen plus another fourteen days.  It is submitted that fourteen days notice was given, as the Bylaw does not specify that the fourteen days are "clear" days, and therefore subsection 23(5) of the Interpretation Act R.S.P.E.I. 1988, Cap. I-8 would apply.  While it is acknowledged that the Respondent's Planning Board met late on the afternoon of the fourteenth day, should this amount to an error, the Commission can correct the error hearing the matter de novo.

·    With respect to the allegations of conflict of interest, it is submitted that there was no financial advantage and that a reasonable person, well informed of the facts, would not see bias.

·    The Respondent submits that the requirements set forth in clause 4.17(1)(f) of the Bylaw have been met.  Further, clause 4.17(1)(o) provides a "safety valve" whereby the permit for the proposed development can be cancelled, suspended or restrictions added.

[6]  The Respondent requests that the Commission deny the appeal.

 Developer's Position

[7]  The Developer submits that it has been a long struggle to permanently establish an emergency/transition facility in Charlottetown.  In approving the proposed development, the City has finally responded to its Official Plan.  It would be almost impossible for the Developer to find a suitable location for the proposed development without the granting of variances.  The Developer requests that the Commission deny the appeal.

3.  Findings

[8]  After a careful review of the evidence, the submissions of the parties, and the applicable law, it is the decision of the Commission to deny the appeal.  The reasons for the Commissions decision follow.

[9]  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.

[10]  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 disagrees with the end result.  However, if the person or body appealed from did not follow the proper procedures 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 must proceed to review the evidence before it to determine whether or not the application should succeed.

[11] With respect to the remaining allegation of a possible conflict of interest pertaining to a member of the Respondent's Planning Board and Council, the Commission finds that there is no conflict of interest pursuant to section 2.4 of the Bylaw and section 20 of the Charlottetown Area Municipalities Act, R.S.P.E.I. 1988, Cap. C-4.1 as there is no evidence of a pecuniary interest and no evidence that the member was affected by the decisions of the Respondent's Planning Board and Council.  As for the common-law test concerning a reasonable apprehension of bias, the Commission sees no such bias present in this matter.

[12] Concerning the Appellant's allegations with respect to subsection 4.29(2) of the Bylaw, the Commission finds that the minimum time period required is fourteen calendar days.  Given that the meeting of the Respondent's Planning Board occurred late in the afternoon of the fourteenth day, it is certainly possible that an error occurred.  However, any such error amounts to a comparatively minor breach which may have resulted in Planning Board not being aware of one letter from a concerned resident.  Since the Commission, hearing this matter de novo, fully considered all letters from residents, any such error has been corrected as the letter in question was considered during the course of the hearing.

[13] With respect to the four variances (minimum lot area, minimum front yard setback, minimum left side yard setback and number of beds) granted by the Respondent, the Commission notes that the proposed development is an established house in an established neighbourhood.  Evidence at the hearing revealed that the front yard setback is consistent with other nearby houses.  The Commission finds that variances are a normal feature within a long established neighbourhood.  The Commission finds that the Respondent followed the process established in section 4.29 of the Bylaw, with the possible exception of the issue identified in the previous paragraph.  The Commission finds that only subsection 2 of section 4.28 of the Bylaw is applicable, given that this matter concerns "other variances" rather than "minor variances".  The proposed development is consistent with section 3.3 of the Respondent's Official Plan.  The Commission finds that the provisions of the Bylaw with respect to an emergency/transition facility are rather strict and it would be difficult to envision approval of a shelter in the downtown area without granting variances.  Thus, the Commission finds that the decision to grant the variances was appropriate.

[14] With respect to the Appellants' concerns that the business plan filed by the Developer does not meet the requirements of section 4.17 of the Bylaw, the Commission finds that the business plan and the addendum together do meet the requirements of the Bylaw, albeit minimally.  While more detail would have been helpful, the Commission finds that the requirements of clause 4.17(1)(f) were met.

For the above reasons, the appeal is hereby denied.

While denying the appeal, the Commission understands the concerns expressed by the residents and the feeling of having the shelter imposed on their neighbourhood.  That feeling is a natural reaction after the shelter was successfully opposed and rejected by other neighbourhoods in the City.  The Respondent and the Developer made several references during the hearing to the "not in my back yard" syndrome. That attitude was prevalent when the Developer attempted to establish an emergency/transition shelter in the past.  This past experience and the direction of the Respondent's Official Plan resulted in the development of section 4.17 of the Bylaw under which this location was approved.

[17]   In looking at the manner in which previous applications were handled, the Commission can appreciate why some believe the application for this location was rushed.  In some instances it appears there was more focus on a Federal Government funding deadline then obtaining the input of residents. The residents of this area are not responsible for the funding deadline, the time taken in implementing the new by-law, nor the timing of the application. Nor are they responsible for what took place in previous shelter efforts over a number of years.

[18]  The fact that a number of the Appellants do not live in the area is not a concern of the Commission. They own property in the area, they have invested in the neighbourhood and the right of appeal is not restricted.  Several letters filled with the City demonstrate concern on the part of others who have made the area their home and invested their properties and the Commission appreciates their desire to have a voice in the future of the area.

[19]  Every neighbourhood has special qualities and those qualities may be attractive to diverse interests. In this case, many of the factors that attract residents to the area, such as well maintained residences in close proximity to the city core and a variety of services, are also qualities that attract other residents, such as the homeless shelter. Residents like the fact they can reach many services without using a car, which is also attractive to this type of shelter. 

[20]  A neighbourhood is as much a feeling as it is a geographical location and each of us has our own version of the perfect neighbourhood, and that fact often leads to disagreements.  It may be over the size of a structure, the appearance or the use.  It is one of the reasons official plans and bylaws are enacted and why public input in that process is so important.

[21]  In this case, while not perfectly, the City followed the established process.  The Commission, placing itself in the role of the decision maker, would have taken a slower approach but made the same decision.

[22]  The operators of the shelter have been given an opportunity to demonstrate they can meet their objectives and at the same time be good neighbours. Ultimately, how effective they are in meeting that challenge, will determine the long term future of the shelter in this neighbourhood.

The Commission endeavours to provide a hearing setting in which parties, if they so choose, may appear on their own behalf without legal counsel.  In that regard the hearing panel compliments Mr. Coffin for his well-presented arguments and effective representation of the Appellants' interests throughout all stages of the hearing.  The final outcome, while understandably disappointing to the Appellants, in no way diminishes the professionalism of their presentation.  Legal counsel for the Respondent is also complimented for demonstrating the flexibility that assists unrepresented parties in the effective presentation of their arguments.

4.  Disposition

[24]  An Order denying the appeal will therefore be issued.

Order

WHEREAS Roy Coffin, Danny Larter, Darin Meek and Ron Russell have appealed a decision made by the City of Charlottetown, dated February 9, 2004;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on June 21 and 22, 2004 after due public notice and suitable scheduling for the 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 19th day of August, 2004.

BY THE COMMISSION:

Maurice Rodgerson, 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.