Docket: LA05025
Order LA05-15

IN THE MATTER of an appeal by Mark Baker, on behalf of Baker & Son Inc., of a decision of the Town of Montague, dated September 12, 2005.

BEFORE THE COMMISSION

on Thursday, the 29th day of December, 2005

Brian J. McKenna, Vice-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:

Counsel:
Erin Mitchell

Witnesses:
Mark Baker
John MacFarlane
Niall MacKay

2.   For the Respondent:

Counsel:
Karen MacLeod

Witness:
Robin Campbell

3.   Members of the Public

Mary Elizabeth Dyck
Linda Mae Snook

Reasons for Order

1.  Introduction

[1]  This is an appeal filed on September 30, 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 Mark Baker, on behalf of Baker & Son Inc. (the Appellant) concerning a September 12, 2005 decision of the Town of Montague (the Respondent) to deny a request by the Appellant for a change in zoning from Residential Single Family (R-1) to Residential Multiple Family (R-2) for a portion of parcel number 451559 (the subject property) on Douses Road in Montague.

[2]  After due public notice, the Commission proceeded to hear the present appeal on November 17, 2005.

2.  Discussion

Appellant's Position

[3]  The Appellant's oral submissions at the hearing include the following:

  • The Respondent did not follow the appropriate procedures in considering the Appellant's application as the Respondent's Planning Board simply passed the matter to the Respondent's Council without considering the issues.

  • The Respondent's Council did not consider planning principles when making their decision.  It is submitted that they did hear and consider concerns expressed by residents about a potential purchaser of the subject property.  It is submitted that the opposition was actually to a proposed development, not the rezoning itself, and thus Council considered issues that were better left to the building permit application stage. 

  • It is submitted that it is not appropriate to have a lot zoned R-1 which fronts on a busy road serving as a trucking route.  It is submitted that this application for a rezoning cannot be considered "spot zoning" as all but three lots fronting Douses Road are not R-1.

  • It is submitted that the rezoning of the subject property would not lead to increased traffic on Belmont Street because this street does not connect to Douses Road.

[4]  The Appellant requests that the Commission quash the Respondent's decision to deny a rezoning of the subject property.  The Appellant further requests that the Commission issue a substitute decision to approve a rezoning of the subject property to R-2.

Respondent's Position

[5]  The Respondent's oral submissions at the hearing include the following:

  • The Respondent submits that the Appellant did not set out its position in its grounds for appeal and did not attempt to amend said grounds to include its position.  Thus, the Respondent was effectively taken by surprise.  It is submitted that adequate grounds for appeal are required in order for a respondent to prepare for an appeal hearing.

  • The Respondent submits that it followed the proper procedures in considering the Appellant's rezoning application.  Procedurally there is nothing preventing the Planning Board from forwarding the matter before the entire Council.

  • The Respondent submits that its decision was based on sound planning principles and that it was appropriate to consider the concerns of residents.  It was explained that the potential purchaser was not a relevant consideration.  There is no evidence that all six councillors only considered the wishes of the residents. 

[6]  The Respondent submits that its decision was reasonable and requests that the Commission deny the appeal.

Members of the Public

[7]  Two members of the public expressed their concerns over the proposed rezoning.  They stated that their objections are not directed against "the developer".  They told the Commission that they have no objection to development of the subject parcel provided the zoning remains R-1.

3.  Findings

[8]  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 deny the appeal for the reasons that follow.

[9]  Appeals under the Planning Act generally take the form of a hearing de novo before the Commission.  In a frequently 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 after careful reflection on a case-by-case basis.  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 Planning Act, then the Commission must proceed to review the evidence before it to determine whether the application should succeed.

[11]  The Commission finds that the above-cited principle applies where a decision making body, such as the Respondent, considers an application for a rezoning pursuant to its zoning bylaw.  Thus, a two-part test is invoked:

  • whether the municipal authority, in this case the Respondent, followed the proper procedures as required in its zoning bylaw in making its decision to deny the Appellant's rezoning application; and

  • whether the proposed rezoning has merit based on sound planning principles.

[12]  The Commission finds there is no evidence to substantiate a finding that there was an error in process.  The evidence before the Commission demonstrates that it is quite common for the Respondent's Planning Board to recommend that its Council proceed to consider the rezoning request.  Such process is not prohibited under the Planning Act.  There is no evidence that the Respondent deviated from its usual process and procedures when specifically dealing with the Appellant's application for a rezoning.

[13]  A review of the Appellant's application for a rezoning makes it quite clear that the purpose for seeking a rezoning from R-1 to R-2 was to permit a single-family dwelling with home based business potential.  A limited class of home based businesses is permitted in the Respondent's R-1 zone.  A broader class of home based businesses is permitted in the R-2 zone. 

[14]  While undoubtedly the concerns expressed by area residents appear to have received considerable weight by the Respondent's Council, that was not the sole matter presented to Council.  Council had the benefit of the September 12, 2005 memo prepared by the Respondent's CAO.  While this memo does refer to written objections and a petition filed by residents, it also refers to Policy EP-1A of the Respondent's Official Plan, which reads as follows:

POLICY EP-1A  It is the POLICY of the Town Council to establish an area for commercial uses which reinforces the "community centre" concept;

[15]  The Commission is mindful that there is no expert evidence before the Commission as to whether sound planning principles would dictate a rezoning of the subject property.  The Commission is left with the submissions of legal counsel as to the merits of rezoning to R-2 and the merits of retaining the status quo.  The concerns of area residents are a relevant factor as is the Respondent's policy to reinforce the "community centre" concept set forth in the Official Plan.  While it appears that the identity of the potential purchaser may have been a concern of the residents and may have been mentioned by the residents to one or more members of Council, there is no evidence that such an improper consideration influenced the members of Council.

[16]  Accordingly, the Commission finds that retaining the existing approved zoning reflects sound planning purposes in the absence of expert evidence to the contrary. 

[17]  For the above reasons, the appeal is denied.

4.  Disposition

[18]   An Order denying the appeal will therefore issue.

Order

WHEREAS the Appellant Mark Baker, on behalf of Baker & Son Inc., appealed a September 12, 2005 decision of the Town of Montague to deny a rezoning application;

AND WHEREAS/UPON the Commission heard the appeal at public hearings conducted in Charlottetown on November 17, 2005 after 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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 29th day of December, 2005.

BY THE COMMISSION:

Brian J. McKenna, Vice-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.