Order LA15-06 - Docket LA14005 - Planning Appeal - Hanmac Inc. v. City of Charlottetown (December 18, 2015)

[29] After a careful review of the evidence, the submissions of the parties and the applicable law, it is the decision of the Commission to allow the appeal.

[30] Appeals under the Planning Act take the form of a hearing de novo before 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.

[31] In previous appeals, the Commission has found that it does have the power to substitute its decision for that of the municipal or ministerial decision maker. However, in planning matters the Commission does not lightly interfere with such decisions.

[32] The Commission finds that the two-part test that it has used in the past also serves as a guideline in determining this appeal.

Whether the municipal authority, in this case the City, followed the proper process and procedure as required in its Bylaw, in the Planning Act and in the law in general, including the principles of natural justice and fairness, in making a decision on a rezoning application, requiring amendments to the Bylaw's Zoning Map and also in this case requiring a companion amendment to the Official Plan's Future Land Use Map; and
Whether the City's decision with respect to the proposed Zoning Map and Future Land Use Map amendments have merit based on sound planning principles within the field of land use and urban planning and as enumerated in the Official Plan.

[33] In reviewing the entire application from beginning to final decision of Council the Commission notes that the City's Planning and Development office handled this application in a good, business like and exemplary manner. The application for rezoning was filed with the Planning and Development office and was processed by that office in a timely manner. Public notices were given and public meetings were held, minutes produced and recommendations made based on facts made available to Planning and Development staff. Reports were written and recommendations made to Planning Board. Planning Board accepted the recommendations and issued its own recommendation to Council for approval of the application and the rezoning. It is clear from the record that the matter was given and received due consideration from individuals and committees that took the time to inform themselves to the issues involved in the matter before them. It is clear from the minutes of Council that the councillors who chose to speak had not bothered to inform themselves on the matter of the application before them. Those councillors spoke of concerns for which there were answers in the record, expressed concerns about matters which could have been and should have been canvassed by them long before they entered the Council chamber for a vote on such an important matter. At the Council meeting the chairman of the Planning Board addressed these issues and answered them in a full and complete manner. Three of the councillors voting against the motion did not even see fit to make comment at the meeting.

[34] In the minutes for Council's July 14, 2014 meeting dealing with Hanmac's rezoning application, the sole reason and explanation for the denial and rejection of the application was noted as follows:

Concerns were raised with respect to traffic in the area, type of zoning (R-3) proposed and drainage.

[35] The Commission is concerned with the inaccuracies as set out in these minutes of the meeting. The verbatim Minutes of Council show that there were no concerns raised with respect to drainage. The only reference to drainage was a confirmation from the chairman of Planning Board that the developers had provided a draft drainage plan by a certified civil engineer. Drainage matters may have come up earlier in the application process but they certainly were not a concern at the regular meeting of Council on July 14, 2014 and it was improper for that concern to have been stated as such, in the minutes of Council.

[36] Following the decision of Council to reject the application, the Planning and Development officer then forwarded a letter, dated July 15, 2014 to Hanmac setting out the following reason for Council's rejection, it reads:

Council felt that it was not appropriate to re-zone a portion of an outdoor urban recreational space to a zone that would permit a medium density residential use.

[37] The Commission is very concerned with the letter noted above that was forwarded to the developer. This is the only communication sent to the developer to explain to the developer the reason why its application was rejected by Council. The reason and rationale set out in this letter is not the reason that is recorded in the Council's Minute of July 14, 2014 and cannot be gleaned from the verbatim transcript of the Council meeting. It is not acceptable that the written explanation given to the developers as to why their project was rejected states a reason that was not even an issue at the Council meeting.

[38] In his summation, Counsel for the City referred the Commission to the decision of the Newfoundland and Labrador Supreme Court (Trial Division) in Seanic, supra, and submitted to the Commission that the Commission should not interfere with the decision of a Council where it is clear that the councillors were "alive to the issue" before them. It is apparent to the Commission that the councillors were most definitely not "alive to the issue" that was before them. It is also apparent to the Commission that although this application had been before the City for months, councillors expressed questions and concerns that could easily have been answered by discussing the matter with Planning Department staff and by a review of the application material that had been provided to them by Planning Board staff. But, instead, as the record confirms, they chose to enter the Council chamber and vote on a matter for which they were not fully informed.

[39] The Commission finds that the reason set out in the July 15, 2014 letter from the Planning and Development Officer to Hanmac does not reflect either the written minutes or the verbatim transcript of the meeting of Council on July 14, 2014 pertaining to Hanmac's application.

[40] In Seanic, supra, the Court referred to a decision of the Supreme Court of Canada in Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, 2004 SCC 48. In that decision, McLachlin C.J. noted the following at paragraphs 12 and 13:

12 The five Baker factors suggest that the Municipality's duty of procedural fairness to the Congregation required the Municipality to carefully evaluate the applications for a zoning variance and to give reasons for refusing them. This conclusion is consistent with the Court's recent decision in Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663, 2002 SCC 85, at para. 23, holding that municipal councilors must always explain and be prepared to defend their decisions. It is also consistent with Baker, where it was held, at para. 43 dealing with a ministerial decision, that if an organ of the state has a duty to give reasons and refuses to articulate reasons for exercising its discretionary authority in a particular fashion, the public body may be deemed to have acted arbitrarily and violated its duty of procedural fairness.

13 Giving reasons for refusing to rezone in a case such as this serves the values of fair and transparent decision making, reduces the chance of arbitrary or capricious decisions, and cultivates the confidence of citizens in public officials. Sustained by both law and policy, I conclude that the Municipality was bound to give reasons for refusing the Congregation's second and third applications for rezoning. This duty applied to the first application, and was complied with. If anything, the duty was stronger on the Congregation's second and third applications, where legitimate expectations of fair process had been established by the Municipality itself. Emphasis added by the Commission

[41] The direction from the Supreme Court of Canada is clear: a municipality must carefully evaluate an application, give reasons when refusing the application and municipal councillors "must always explain and be prepared to defend their decisions".

[42] A careful evaluation of Hanmac's application was given by the Planning and Development Officer and by Planning Board and these evaluations supported Hanmac's rezoning application. While Council is free to make a decision contrary to the recommendation of its staff and its Planning Board, as noted in Congrégation, a municipality must undertake a careful evaluation of the application before it in order to meet the duty of procedural fairness. The verbatim minutes of July 14, 2014 persuade the Commission that there is insufficient evidence to support a finding that Council carefully evaluated the application before it. The Commission finds that the City did not meet the duty of procedural fairness as it failed to decide Hanmac's application on its merits.

[43] In considering whether Hanmac's application is consistent with sound planning principles, the Commission is mindful that the City's Planning and Development Officer is an experienced professional planner who prepared her report for Planning Board and testified before the Commission. Indeed, the Planning and Development Officer has testified before the Commission on several matters over the years and the Commission remains impressed with her knowledge, professionalism and candour. The City's Planning Board also recommended in favour of granting Hanmac's application for rezoning.

[44] However, the Commission must also be satisfied that an application for rezoning has the support of the Official Plan. The Commission notes the following provisions of the Official Plan that are germane to an assessment of both Hanmac's application and the existing status of the Subject Property from the perspective of sound planning principles.

3. DIRECTING PHYSICAL GROWTH

The City of Charlottetown will strive to create for its residents a truly unique environment in which to live, work, and play. It will protect the distinct character of the municipality while at the same time encouraging compact urban form and creative approaches to residential, commercial, and industrial development. The City will continue to build on its past by stimulating the revitalization of heritage resources; maintaining the special qualities of Charlottetown's neighbourhoods; and safeguarding the municipality's open space characteristics and view corridors.

3.1 Guiding Settlement

Starting Point

As a recently amalgamated municipality, Charlottetown has a unique window of opportunity to create a growth profile that will help shape the City's urban fabric well into the 21st century. In large measure, the way in which the municipality now chooses to guide its settlement patterns will provide the template that molds urban development--and the quality of life issues which arise from it--for many years to come.

...

An effective municipal growth management program is founded on the principles of fiscal efficiency, environmental conservation, and urban containment. In Charlottetown, this means that the City will maximize the use of existing underground services before new water and wastewater lines are extended into areas that are essentially undeveloped. Finally, it means that moderately higher density development may be permitted in existing commercial areas and arterial corridors where it does not interfere with existing built-up residential neighbourhoods...

Collectively, these measures will promote compact and contiguous development patterns, the deployment of efficient municipal services, and the preservation of significant resource areas for present and future generations. This approach will enable the City to anticipate growth, identify areas and services which can accommodate it, while also minimizing fiscal expenditures and environmental impacts. To this extent, it will ensure that urban growth in Charlottetown takes place in a rational, efficient, and orderly fashion, as well as being consistent with the provincial government's general land-use policy.

...

Defining Our Direction

Our goal is to develop settlement patterns which are efficient in their use of land resources and cost of servicing, encourage equitable and harmonious community relationships, and help to sustain Charlottetown's distinctive character and identity.

Our objective is to contain urban sprawl by introducing a staging strategy for new development, and to ensure that there is concurrency between proposals for new development and the provision of underground municipal services.

Our policy shall be to direct urban growth to land that is a logical extension of an existing urban area, or neighbourhood, and will be serviced by municipal water and wastewater systems;
Our policy shall be to monitor the long-term public costs of additional infrastructure, public services, and public service facilities prior to approving development proposals.
Our policy shall be to place each key re-urbanization area identified in subsection 3.6 in a Comprehensive Development Area zoning designation until such time as a detailed concept plan has been prepared and adopted.
Our policy shall be to have the responsible municipal departments ensure that adequate infrastructure and servicing facilities are in place prior to, or are developed concurrently with, new development.

Our objective is to promote compact urban form and infill development, as well as the efficient use of infrastructure and public service facilities.

Our policy shall be to allow moderately higher densities in neighbourhoods, and to allow in- law suites in residential land-use designations, and to make provision for multiple-family dwellings in the downtown core, and multiple-family dwellings in suburban centres and around these centres provided it is development at a density that will not adversely affect existing low density housing.
Our policy shall be to encourage in-fill development through public land assembly initiatives, flexible zoning provisions and the reduction or waiver of development fees for small or irregularly shaped lots and, when warranted, the use of tax incentives within fully serviced areas of the City.
Our policy shall be to use existing underground services to its fullest practical capacity before public funds are used to extend new water and wastewater lines into areas that are essentially undeveloped. [Emphasis added by the Commission]

3.2 Sustaining Charlottetown's Neighbourhoods

Starting Point

In most municipalities, the neighbourhood is the basic building block of residential development and community identity. Every neighbourhood has its own distinguishing characteristics which help to identify it as an individual entity, as well as to set it apart from adjoining areas. In Charlottetown, the former communities which now comprise the new municipality, retain their distinctive characteristics and sense of identity. Indeed, even within the former communities there are several districts -- such as Brighton, Spring Park, Marysfield, and Lewis Point -- which are seen as distinct neighbourhoods.

In order to preserve the unique characteristics of Charlottetown's neighbourhoods the CHARLOTTETOWN PLAN introduces policies which promote both stability and community identity. The aim is to sustain vibrant neighbourhoods which have a distinct sense of community, are places of close social contact, and are generally enjoyable. This is the clear preference of Charlottetown's residents.

However, it is also important to recognize that change which results from economic and social transformation is already having an impact at the neighbourhood level. Smaller households, a decrease in family-oriented households, an aging population base, and an increase in home-based businesses are several of the factors for some needed flexibility in housing densities, design options, permitted uses, and lot sizes within Charlottetown's neighbourhoods. With some future adjustments in development standards, the City's residential communities will be better able to sustain a diversity of household types and lifestyles, and continue to be vibrant places to live.

Similarly, if Charlottetown's neighbourhoods are to remain healthy and sustainable, the policies of this plan should enable people to continue to reside in their residential communities as they move through various ages and stages of their lives. The provision of community-based services, appropriate public realm amenities, and reasonable access to shopping and facilities are measures which will support this aim.

As a new municipality, it is also important for Charlottetown to find ways to embrace its various neighbourhoods and bind them into the larger community. To some extent, the passage of time -- along with the equitable distribution of municipal services and amenities -- will help to solve this issue. However, the City also needs to provide physical linkages which will connect each neighbourhood to others, as well as to the downtown core and the suburban centres. The green space connector system shown on the Future Land-Use Map lays the foundation for these physical connections. Upon its completion, it will not only help to link neighbourhoods together, but also provide residents with the opportunity to walk or cycle to a variety of destinations within the City.

Defining Our Direction

Our goal is to maintain the distinct character of Charlottetown's neighbourhoods, to enhance the special qualities of each, and to help them adjust to the challenges of economic and social transformation.

Our objective is to preserve the built form and density of Charlottetown's existing neighbourhoods, and to ensure that new development is harmonious with its surroundings.

Our policy shall be to ensure that the footprint, height, massing, and setbacks of new residential, commercial, and institutional development in existing neighbourhoods is physically related to its surroundings.
Our policy shall be to establish an appropriate relationship between the height and density of all new development in mixed-use residential areas of existing neighbourhoods.

Our objective is to allow moderately higher densities and alternative forms of development in any new residential subdivisions which may be established, provided that this development is well planned overall, and harmonious with existing residential neighbourhoods.

Our policy shall be to permit moderately higher densities in new neighbourhoods and to permit in-laws suites in residential land use designations and to make provision for higher density residential projects located in the Downtown Growth Area which is located in the Downtown Core Area and to permit multiple unit developments in suburban areas provided that it is development at a density which will not unduly adversely affect existing low density housing.
Our policy shall be to allow a mix of residential, commercial, institutional, and recreational uses in new subdivisions which are established, provided that there is a comprehensive site plan which ensures that development is well-related to both its internal and external environments.

...

5.1 Addressing Recreational Needs

Starting Point

The demand for recreation and leisure activities in Charlottetown -- and throughout Canada -- is changing. Increasingly, people are demanding a greater variety of facilities and programs. In the years to come, the challenge for the City will be to provide traditional recreation and leisure activities while at the same time responding to changing demands. The trends and issues that will increasingly begin to influence the delivery of these services are:

an aging population base;
changes in the type of activities demanded by this population; and
the ability of the City to respond to these changing demands.

...

5.2 The City's Public Places

Starting Point

The way in which we inhabit the land is often articulated through our public places. These special spaces... be they natural, groomed, or fabricated features in the community, are elements that make our daily lives richer and more vivid ... and by the physical facts of their location provide a deeper resonance with the place that is Charlottetown.

In addition to sustaining special relationships between people and their surroundings, the City's public places directly affect both residents and visitors' perceptions of Charlottetown's quality of life. Indeed, there is a very positive public image of the City because of its many public places, its harbour setting, and its collection of heritage buildings. The civic squares, for example, are firmly rooted in the City's earliest plans, and are an integral part of Charlottetown's image and identity. Indeed, all of Charlottetown's public places allow us to gain knowledge about the seasons, the structures, the incidents and lives--human and otherwise--that exist in our home territory. As such, it is important to preserve and build on these fundamental elements which contribute so much to the City's image and sense of place.

Defining Our Direction

Our goal is to provide a diversity of public places throughout Charlottetown to ensure that residents and visitors can relax, celebrate, and enjoy the City's many distinct urban and natural environments.

Our objective is to encourage the upkeep, and to nourish the creation, of open spaces and public places of a grander scale which befit Charlottetown's role as the provincial capital.

Our policy shall be to manage the large open spaces of Charlottetown as part of the growth management strategy, and to ensure that they are protected as long as is reasonably possible from urban development.
Our policy shall be to protect, maintain, and enhance the public places of Charlottetown.

[45] Sections 5.1 and 5.2.1 have been referenced in the oral testimony of the City's Planning and Development Officer as some of the provisions within the Official Plan which lend support to a retention of the current open space zoning for the Subject Property. Section 5.1 pertains to the City's recreational needs while section 5.2.1 pertains to the City's public places.

[46] The Subject Property is privately owned and thus it should not be confused with a publicly owned open or "green" space such as municipal parkland. The Subject Property, although zoned open space, is not one of the City's public places.

[47] The testimony before the Commission is that development of the Subject Property in no way restricts the existing recreational services provided by Belvedere. Indeed, such development may assist Belvedere in remaining viable and thus continuing to provide an important recreational need.

[48] Section 29 of the City's By-law sets out the provisions with respect to the Open Space Zone (OS). Section 29.1 list the permitted uses within that zone:

29.1 PERMITTED USES

.1 active and passive recreation;

.2 band shell;

.3 Campground;

.4 curling Club;

.5 Golf Course and driving range;

.6 Officers Club;

.7 Open Space;

.8 Park;

.9 pavilion;

.10 Public Park;

.11 public recreation centre; and

.12 trails and fields.

[49] The Commission notes that a rejection of Hanmac's rezoning application maintains the open space zoning of the Subject Property and as such, the permitted uses applicable to a private landowner would be rather limited. The Commission finds that the Subject Property is privately owned, underutilized, and, according to the evidence presented to the Commission, it is of little benefit to the operations of its present owner.

[50] The Commission finds that Hanmac's application for rezoning promotes compact urban form, while offering a medium-density development that is more compatible with the existing residential neighbourhood than a high-density residential development. The subject parcel is well within existing water and service lines and is adjacent to Kensington Road, a major street within the City. Hanmac's application also assists in providing some visual buffer between the commercial and residential portions of the immediate neighbourhood. As a limited scale development using under-utilized golf course land, it does not negatively impact upon the adjacent developed green space occupied by the golf course. As a medium density development located adjacent to a golf course and a commercial area, it does not negatively impact upon the existing neighbourhood. It provides housing variety within the neighbourhood which will allow residents in transition, or those undergoing "economic and social transformation" to remain within their neighbourhood, a factor of considerable importance referred to in the Official Plan. Hanmac's development is rational, efficient, orderly and addresses the needs for housing diversity.

[51] Counsel for the City submits that the application for rezoning would result in what is referred to as spot zoning. This assertion is contrary to the determination of the City's own Planning Department and the opinion of the City's own planners as noted in the Planning Department's report to Planning Board for its consideration of this application. This Commission finds that based on the evidence before it this application for rezoning is not spot zoning.

[52] In Charlottetown (City) the Island Reg. & Appeals Com. 2013 PEICA 10, Chief Justice Jenkins of the Court of Appeal stated:

40... However, where, as here, Council fails to decide an application for development on its merits in accordance with the applicable municipal law, which is enabled by the Planning Act, and decides the application based on irrelevant considerations, then there is no basis for deference. That is because there is no decision upon which to defer. In the Commission's words, deference to a decision maker is earned when the decision maker follows the process set out by the bylaw and is fair to all parties. Where, as here, the process was not so followed, the Commission was unable to show deference to Council's decision.

[53] In the present appeal, the Commission finds that the Council failed to decide the application for the development on its merits in accordance with the applicable municipal law and finds that Hanmac's proposal for development of the Subject Property demonstrates clearly superior planning compared with the current use of the property.

[54] The appeal is allowed, and the City's July 14, 2014 decision to deny Hanmac's rezoning application is hereby reversed. The Commission orders the City to approve an amendment to Appendix "A"- Future Land Use Map of the Official Plan from Recreational to Medium Density Residential and an amendment to Appendix "H" - Zoning Map of the City of Charlottetown Zoning and Development By-law from Open Space (OS) Zone to Medium Density Residential (R-3) Zone in order to rezone a portion of the property at 1 Greensview Drive (PID# 279091).