Docket: LA04023A-O
Order LA05-01

IN THE MATTER of appeals by Nicole Patelakis et al. of a decision of the Town of Cornwall dated July 21, 2004.

BEFORE THE COMMISSION

on Friday, the 4th day of February, 2005.

Maurice Rodgerson, Chair
 Norman Gallant, Commissioner
 Anne Petley, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    Representing the Appellants:

Nicole Patelakis
Shane Patelakis
Eileen Walsh
Darren Walsh

2.   Representing the Respondent:

Kevin McCarville, Chief Administrative Officer, Town of Cornwall

3.   Representing the Developer:

Kenny Richards, Richlan Inc.

Reasons for Order

1.  Introduction

[1]  This is a group of appeals filed on August 11, 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 Nicole Patelakis, Shane Patelakis, Walter MacDonald, Scott McEwen, Lori McEwen, Al Rooney, Imelda Rooney, Brian MacKay, Eileen Walsh, Joyce Cousins, Betty Eardley, William R. Scott, Darren Walsh, Steve Austin, Cathy Austin, Mike O'Brien and Margaret MacIntyre (the Appellants) against a decision of the Town of Cornwall (the Respondent) on July 21, 2004 to approve an application from Richlan Inc. (the Developer) to subdivide 11 lots from parcel number 245647 (the proposed development) located off Fulton Drive in the Town of Cornwall.

[2]  With the agreement of all parties, a mediation session, mediated by Commission staff, was held on October 22, 2004 in the Commission's hearing room.  On November 19, 2004, the Developer filed with the Commission a preliminary Subdivision Plan, drawing number 4024-6 dated November 17, 2004 incorporating changes discussed at the mediation session.

[3]  A copy of drawing number 4024-6 was provided to the parties and the Commission received correspondence from five Appellants who were in agreement with the revisions contained in drawing number 4024-6.  The Commission also received a letter on behalf of two Appellants who were not in agreement with these revisions.

[4]  On December 15, 2004, the Respondent's Council, at its regular monthly meeting, accepted the revised subdivision concept proposed by the Developer in drawing number 4024-6.

[5]  By way of a registered letter dated December 21, 2004, the Commission invited the parties to file written submissions by January 24, 2005.  No further written submissions were filed.

2.  Discussion

[6]  Although fifteen Notices of Appeal were filed with the Commission, the grounds for appeal and remedy sought are identical.  The grounds for appeal are stated as:

The proposed development would: 1) significantly and permanently injure neighbouring properties by reason of architectural disharmony, going from R1 to R3; 2) there is not safe and efficient access to Fulton Drive and NO access to Warren Grove Road, safe ingress and egress from the lots cannot be provided; 3) the proposed development will create UNSAFE traffic conditions, parking requirements by the Town of Cornwall for each unit means increase & unsafe traffic conditions entering & exiting Fulton Dr.

The relief sought is stated as: 

         Reversal of Motion Carried 2004-07-1239 

[7]  Following mediation and the filing of drawing number 4024-6, Nicole Patelakis, Shane Patelakis, Walter MacDonald, Stephen Austin and Cathy Austin advised the Commission in writing that they supported the revisions contained in drawing number 4024-6 and they were prepared to withdraw their appeals conditional on these revisions and subject to any further changes required by the Town of Cornwall or the Province of Prince Edward Island to protect the marshland/waterway area. 

[8]  In a letter dated December 13, 2004 [received December 23, 2004], Eileen Walsh, on behalf of Darren Walsh and herself, noted that they did not accept the proposed revisions and expressed concern that the number of lots have increased in number.  Concern was also expressed about the safety aspect of putting the only entrance to these lots on Fulton Drive. 

[9]  The Commission did not receive any response from, or on behalf of, the other ten Appellants.

 3.  Findings

[10]  After a careful review of the evidence, the information provided by the parties, and the applicable law, it is the decision of the Commission to allow the appeal of the Respondent's July 21, 2004 decision to approve the original plan of subdivision, and this original approval is hereby quashed.  As a result of mediation, the Developer submitted a new plan of subdivision expressed in drawing number 4024-6.  This new plan was approved by the Respondent on December 15, 2004 and the Commission hereby accepts this new plan contained in drawing number 4024-6.  The reasons for the Commission's decision follow.

[11]  The Commission notes that the original plan (drawing number 4024-5, dated June 25, 2004) would have placed a 12 unit apartment building at the entrance to the proposed new multi-unit subdivision, zoned R3 Multiple Family Residential.  As this building would have been placed immediately adjacent to the existing single family subdivision, zoned R1 Single Family Residential, the Appellants were concerned about the resulting "architectural disharmony".  However, the Commission notes that, at first blush, such an abrupt transition would be permissible given that the proposed development was already zoned for R3 Multiple Family Residential.  Section 11.2 of the Town of Cornwall Zoning and Subdivision Control (Development) Bylaw (the Bylaw), concerning the "MULTIPLE FAMILY RESIDENTIAL ZONE (R3)" reads as follows:

11.2 PERMITTED USES

(1) No building or part thereof and no land shall be used for purposes other than:

(a) Duplex & Semi-Detached Dwellings
(b) Row or Town House Dwellings up to six (6) units (owned either individually,or as condominiums or by a single owner)
(c) Apartments up to 12 units (owned by a single owner or as condominiums)
(d) Parks and Playgrounds
(e) Accessory Buildings
(f) Private Garages

The Commission notes that from the above, it is apparent that a single family dwelling is not a permissible use in the Respondent's R3 zone.  Therefore, complete architectural harmony is not possible under the current zoning of parcel number 245647.

[12]  However, upon closer examination of the Respondent's Official Plan, the Commission notes the following under section 3.2 Future Development Concept:

The Future Development Concept reflected in this Official Plan would see the Town of Cornwall protect its primarily rural, low density character for the foreseeable future by directing commercial, industrial and residential growth to the urban area of the Town. Expanded commercial and light industrial activities would be encouraged in the geographic core area of the Town adjacent to the Trans Canada Highway. Higher density residential developments would be directed to locate adjacent to major transportation routes and would involve sensitive transitions to established low density neighbourhoods. Effective buffers and high standards of design and visual appearance would minimize the impact of new development. (emphasis added)

[13]  The Commission also takes note of the following goals contained in the Respondent's Official Plan:

3.3.4 Physical

To encourage the development and maintenance of a safe and efficient pedestrian, cycling, vehicular and other circulation systems in the Town.
To encourage and act on opportunities to develop elements of a future Main Street along the current Trans Canada Highway.
To maintain cost-effective, high quality and environmentally sound central water supply and sanitary waste collection and treatment services which accommodate the present and future needs of the Town.
To manage storm water run-off in a safe and cost-effective manner.
To establish a plan for future development which maximizes efficiency and minimizes land use conflicts.
To ensure an adequate supply of land to accommodate the projected needs of various land uses within the period of the Plan.
To foster a visual Town identity that promotes a sense of community and consistency. (emphasis added)

[14]  The Commission finds that the original plan would have resulted in an abrupt, rather than a sensitive transition to an existing neighbourhood which would not serve to minimize land use conflicts.  Accordingly, the Commission finds the original plan to be inconsistent with the Respondent's Official Plan, and on that basis, the appeal is allowed.

[15]  However, following mediation the Developer filed a revised plan drawing number 4024-6.  This plan appears to have less opposition from the residents, given that only two out of seventeen Appellants have voiced their objections to it.  This plan has been accepted by the Respondent at their December 15, 2004 meeting of Council, and no appeal of that decision has been filed with the Commission.  In examining this revised plan, the Commission notes that the proposed 12 unit apartment building has been replaced by two duplexes.  The Commission finds that drawing number 4024-6 is consistent with the Respondent's Bylaw and Official Plan and the Commission hereby accepts said drawing.

[16]  Accordingly, while the Commission allows the appeal and quashes the Respondent's July 21, 2004 decision, the Commission hereby approves the revised subdivision proposal as described in drawing 4024-6 and approved by the Respondent on December 15, 2004. 

[17]  The Commission has proceeded to hear this appeal on a "paper" basis, without a public hearing.  Section 5(b) of the Island Regulatory and Appeal Commission Act R.S.P.E.I., 1988, Cap. I-11 states that one of the functions of the Commission is to "hear and decide matters relating to land use".  Further, subsection 28(8) of the Planning Act requires the Commission to "hear and decide appeals" and the Commission "shall issue an order giving effect to its disposition".  While holding a public hearing is usually the basis for the Commission to hear an appeal, the Commission finds that it is not necessary to hold a public hearing to "hear and decide an appeal" in all cases.  Where credibility is an important issue, natural justice demands that credibility be determined through an oral hearing.  In the present appeal, there is no evidence before the Commission to suggest that credibility is an issue. 

4.  Disposition

[18]  An Order allowing the appeal will therefore be issued.

Order

WHEREAS  Nicole Patelakis, Shane Patelakis, Walter MacDonald, Scott McEwen, Lori McEwen, Al Rooney, Imelda Rooney, Brian MacKay, Eileen Walsh, Joyce Cousins, Betty Eardley, William R. Scott, Darren Walsh, Steve Austin, Cathy Austin, Mike O'Brien and Margaret MacIntyre have appealed a decision made by the Town of Cornwall, dated July 21, 2004;

AND WHEREAS with the agreement of all parties, a mediation session, mediated by Commission staff, was held on October 22, 2004 in the Commission's hearing room; 

AND WHEREAS on November 19, 2004, the Developer filed with the Commission a preliminary Subdivision Plan, drawing number 4024-6 dated November 17, 2004 incorporating changes discussed  at the mediation session;

AND WHEREAS on December 15, 2004, the Town of Cornwall's Council, at its regular monthly meeting, accepted the revised subdivision concept proposed by the Developer in drawing number 4024-6;

AND WHEREAS the Commission notified the parties by registered mail of their opportunity to file written submissions;

AND WHEREAS the Commission did not hold an oral hearing as there was no evidence before the Commission to suggest that credibility was an issue;

AND WHEREAS the Commission heard the appeal by reviewing all documentary evidence on file after the deadline for filing written submissions had passed;

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 decision made by the Town of Cornwall, dated July 21, 2004, is hereby quashed.

2.    The Commission hereby approves the revised subdivision proposal as described in drawing 4024-6 and approved by the Town of Cornwall on December 15, 2004.

DATED at Charlottetown, Prince Edward Island, this 4th day of February, 2005.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Norman Gallant, 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.