Docket: LA05008
Order LA05-13

IN THE MATTER of an appeal by John R. O'Brien, Tanya O'Brien, Mary Mitchell, Mel Jenkins, Lorna Jenkins, Don Tinney, Audrey Tinny, Rob Lantz, Kelly Lantz, Valerie Kelly, Bruce Beaton and John K. Mitchell of a decision of the City of Charlottetown, dated March 15, 2005.

BEFORE THE COMMISSION

on Wednesday, the 23rd day of November, 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.    For the Appellants:

Counsel:
John K. Mitchell, Q.C.
Perlene Morrison

2.   For the Respondent:

Counsel:
David W. Hooley, Q.C.

3.    For the Developer Melanie MacDonald:

Counsel:
Catherine M. Parkman

A complete list of witnesses and members of the public is contained within Order LA05-08.

Reasons for Order

1.  Introduction

[1]  In Order LA05-08, the following paragraphs provide a brief background for the present Order:

[1]   This is an appeal filed April 5, 2005 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 John R. O'Brien, Tanya O'Brien, Mary Mitchell, Mel Jenkins, Lorna Jenkins, Don Tinney, Audrey Tinney, Rob Lantz, Kelly Lantz, Valerie Kelly, Bruce Beaton and John K. Mitchell (the Appellants) against a decision of the City of Charlottetown (the Respondent) on March 15, 2005 to approve an application by Melanie MacDonald (the Developer) for lot consolidation of provincial parcel numbers 349183, 349175 and 349167 with a subsequent subdivision of the consolidated lot into two new parcels situate at North River Road in Charlottetown.  The purpose of the lot consolidation is to allow for the development of a grouped dwellings project consisting of three new semi-detached dwellings on the rear portion of the newly created lot and two existing dwellings on the portion of said lot fronting North River Road (the proposed development). 

[2]   After due public notice and suitable scheduling for the parties, the Commission proceeded to hear the appeal on June 10, June 24 and July 7, 2005.

[2]  In Order LA05-08, the Commission ordered the following:

IT IS ORDERED THAT

1.    The appeal is allowed in part.

2.    The Commission finds that the technical requirements set forth in the Bylaw for a lot consolidation and subdivision were met by the Respondent.

3.      The Commission orders that the lot consolidation and subdivision decision made by the Respondent in this matter be held in abeyance until such time as the Respondent has made a formal determination on whether or not said decision is in keeping with the Official Plan. 

[3]  The present Order specifically deals with the requirement stated in Order LA05-08 that the Respondent make a formal determination on whether the decision is in keeping with the Respondent's Official Plan.

2.  Discussion

[4]  On November 17, 2005, the Respondent's legal council filed a Supplementary Record with the Commission.

3.  Findings

[5]  A review of the November 17, 2005 Supplementary Record makes it clear to the Commission that the Respondent considered the Official Plan in considerable depth.  The Respondent's staff prepared a detailed report.  The Respondent requested and obtained a report by Chris Reddy (Virtual Planning Inc.), a Planning Consultant from New Brunswick.  The Appellants requested and obtained a report by Philip Wood (P. Wood & Associates) a well-known local planner.  The Respondent's Planning Board and Council addressed the matter on several occasions.  

[6]  On November 14, 2005, the Respondent's Council carried the following Resolution:

RESOLVED 

That the reports prepared by City staff and the outside consultant, Chris Reddy, be accepted and be presented to IRAC by the City Solicitor and that the proposed development / lot consolidation / re-subdivision at 101-107 North River Road (PID#s 349183, 349175 and 349167) is in the City's opinion “in keeping with the Official Plan”.

[7]   Upon a review of the Respondent's Supplementary Record dated November 17, 2005, the Commission finds that the Respondent has satisfied the requirement contained in Order LA05-08 and the Commission is satisfied that the Respondent's decision is, in balance, in keeping with its Official Plan.  As a result, the abeyance referred to in Order LA05-08 is hereby lifted. 

4.  Disposition

[8]   An Order finding that the Respondent has made a formal determination as required in Order LA05-08, thereby lifting the ordered abeyance; and further, that the Commission is satisfied the Respondent's decision is, in balance, in keeping with its Official Plan, will therefore issue.

Order

WHEREAS John R. O'Brien, Tanya O'Brien, Mary Mitchell, Mel Jenkins, Lorna Jenkins, Don Tinney, Audrey Tinny, Rob Lantz, Kelly Lantz, Valerie Kelly, Bruce Beaton and John K. Mitchell have appealed a decision of the City of Charlottetown, dated March 15, 2005;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on June 10, June 24 and July 7, 2005 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 in Order LA05-08;

AND WHEREAS the Commission has reviewed a Supplementary Record filed by the Respondent's legal counsel on November 17, 2005;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act

IT IS ORDERED THAT

1.    The Respondent has made a formal determination as required in Order LA05-08.

2.    The Commission is satisfied that the Respondent's decision is, in balance, in keeping with its Official Plan.

3.    The abeyance ordered in Order LA05-08 is hereby lifted.

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