Docket: LA93009
Order: LA93-9

IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;

and

IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Island Lime Services Limited (the Appellant) of Brackley, against a decision whereby the Brackley Community Council denied permission for a courier service to locate in a commercial garage on parcel (Provincial Property Number 509042) located in Brackley, P.E.I.

DATED the 9th day of September, 1993.

John L. Blakney, Vice-Chairman
Clayton Bulpitt, Commissioner
Myrtle Jenkins-Smith, Commissioner

Order

Appearances

1. For the Appellant

Bill MacDonald on behalf of Island Lime Joan MacDonald Services Limited, the Appellant

David W. Hooley Legal Counsel for the Appellant

2. For the Community of Brackley

Margaret Frizzell Chairman, Community Council

E. Leo. MacLeod Administrator 

Reasons for Decision

I. BACKGROUND

In accordance with the Planning Act and the Community of Brackley Official Plan and Zoning and Subdivision Bylaws -1988, specifically Sections 7 and 8, the Community Council may allow a non-conforming use to be intensified or altered.

On January 8, 1993, Island Lime Services Limited applied for a building permit on property (Provincial Property Number 509042) for a commercial garage. The dimensions of the building were 100' x 110'.(Exhibit 23)

At its meeting of January 21, 1993, the Brackley Community Council approved the building permit. (Exhibit 22)

Subsequently another building permit application was made by the Appellant in April, 1993. On May 1, 1993, Mr. E. L. MacLeod, the Administrator, notified the Appellant that the application for a building permit was being returned as additional information was required.(Exhibit 16)

After reviewing a revised plan for the building, on May 29, 1993, a revised building permit was issued to Island Lime Services Limited, to construct a commercial garage. The notation on the permit states:

"This permit issued in accordance with attached revised drawing submitted May 29, 1993. Building to be 80 ft. X 216 ft., adjoining present structure and located a distance of 15 ft. from C.N.R. property...."(Exhibit 9)

On July 26, 1993 the Appellant requested the Brackley Community Council "acknowledge" that the lease agreement between Island Lime Services Limited and Purolator Courier complies with the Community's Official Plan as a pre-existing use. The lease is for a five year period for 35% or 7,680 square feet of its newly constructed facility. (Exhibit 6).

On August 4, 1993, Council informed the Appellant the request was denied:

It is the opinion of council that this type of business does not meet the intent of the Community "Commercial uses Policy" as shown in the Official Plan and the By-law IV. 1. "General Provisions for the Agriculture (A1) Zone.(Exhibit 5)

In a letter dated August 6, 1993, William MacDonald appealed the decision of Council on behalf of Island Lime Services Limited.

The Commission heard the appeal on August 30, 1993, in Charlottetown.

II. EVIDENCE AND ARGUMENTS

A. Appellant

Arguments for the Appellant can be summarized as follows:

1. In accordance with Section 7 of the Bylaw the Council issued a building permit for a "commercial garage". Courier services are less intensive and not materially different from the non-conforming uses that have and continue to exist on the property.

2. There is no substantiative reason not to allow the courier service to locate in the commercial garage because it is less intensive then lime trucking, car rental or car and truck sales, parts and servicing which are pre-existing uses of the property. Council has the discretion to allow the "intensification" or "alteration" of a non-conforming use. Council interpreted Section 8 too restrictive in that the non-conforming use had to be an exact pre-existing use.

B. Community

Arguments for the Community can be summarized as follows:

The Community council believes the type of business proposed by the Appellant does not meet the intent of the Community "Commercial Uses Policy" as shown in the Official Plan. In addition the proposed courier service is not a permitted use pursuant to Section IV. 1 "General Provisions for the Agriculture (A1) Zone under the Zoning and Subdivision Control Bylaw nor is this use a pre-existing use. For these reasons the Community Council denied the request of the Appellant.

C. Others

The Commission heard comments from other interested persons.

III. DECISION

Having considered the evidence presented during the hearing, the Commission decided to allow the appeal. The reasons for this decision are as follows:

According to Rogers, Canadian Law of Planning and Zoning, the general intention of planning legislation with respect to "non-conforming" use is eventually to eliminate non-conforming uses and replace them with permitted uses.

"This is based on the premise that such a use is undesirable because it is incompatible with the existing permitted uses but it is to be tolerable because it was a lawful use prior to its prohibition by by-law."2

The Commission notes that in some jurisdictions there are provisions that non-conforming uses which if destroyed shall not be reinstated. There are also provisions restricting additions or enlargements of buildings which are non-conforming uses, prohibiting non-conforming uses from expanding on lots, and restricting the change of the use. Therefore through the passage of time, a non-conforming use will eventually be brought into conformity.3

The Commission also notes that in the bylaws for the Community of Brackley there are no requirements that would limit the time period for non-conforming uses nor are there specific restrictions on expansion. Council is guided by its Official Plan and Section IV., Subsections 7 and 8 of the Zoning and Subdivision Bylaws with respect to non-conforming uses:

Section 7

Any use of a building or land which does not conform to these bylaws shall be permitted to continue if it was legally established before the passing of these bylaws.

Section 8

If a non-conforming use is intensified or altered, written permission from Council is required.

In its decision to deny the Appellant's request, Council also relied on Section IV., Subsection 1 of the Bylaws which defines permitted uses within the Agriculture (A1) Zone. In addition, Council argued that the decision was based on the Commercial Uses Policy of the Official Plan which states:

Only those commercial uses related to the sale of products from local agricultural or craft operations, to the servicing of agricultural activities, and of neighborhood convenience or personal service nature shall be permitted in the Community.

In reaching its decision, the Commission takes guidance from the Supreme Court of Canada decision in Regina ex rel. Skimmings v. Cappy and Smith,4 as Mr. Justice Laidlaw found with respect to the change in use of a stadium from track and field events to stock car races:

"In my opinion that purpose was a general one. It comprehended the use of the stadium for public amusement and entertainment and for public exhibitions and performances of all kinds. The purpose must be regarded collectively as a whole and cannot properly be divided into parts. Thus it cannot be said the purpose for which the property was used on the day of the passing of the by-law was for football games or for foot races or for any other particular kind of public entertainment, exhibitions or performances. It was for one and all that kind of activity."5

The Commission notes that the Courts have chosen to take a broad definition of the word "use". In the current appeal the Commission finds that Council issued a building permit for a "commercial garage", which is a non-conforming use. The Commission is guided by the interpretation of the Supreme Court of Canada in deciding that the "use" should be defined in general terms as opposed to a specific use. The Commission is satisfied that the proposed courier service is not substantially or materially different from the existing commercial uses, which were deemed to be legally non-conforming. It is the Commission's opinion that the proposed activity will be more compatiable or "less non-conforming" then the previous and existing uses of the property.

The Commission examined one principal issue - the nature and purpose for a non-conforming use bylaw and whether the proposed courier service is materially different from former and existing uses of the property. The test is whether or not the courier service or the commercial use of the property is less desirable or less compatiable with surrounding uses and the permitted uses in the Agricultural (A1) Zone.

The Commission heard evidence from witnesses for the Appellant that the level of activity or intensity in use of the property has varied over the years with changes in the type and number of businesses. Such businesses have included the original lime distribution operation (which continues to operate); a siding and insulation business; a truck dealership; a truck repair and parts operation (which continues to operate); a Jeep Eagle dealership; and, a Thrifty Car rental operation .

Mr. MacDonald testified that the most "intensive" use of the property existed when the car rental business was in operation at the same time as the existing lime distribution business and truck repair and parts operation. The Appellant also stated that even with the addition of the courier service, the use of the property would now be approximately 30% less intensive than when the car rental business was in operation.

Although no evidence was provided by the Appellant to support these "measurements" of intensity of use, the Commission accepts this as being reflective of the situation.

In the opinion of the Commission, Council erronously took the view that the service should not be allowed to occupy the commercial garage, because the proposed courier service did not fit with the intent of the Commercial Uses Policy, nor the listed permitted uses in an Agricultural (A1) Zone. In the view of the Commission, because the general commercial use of the property, with the exception of the lime service is non-conforming, it is not expected that the specific commercial uses of the property would fit one of the permitted uses in the Agricultural (A1) Zone nor conform to Official Plan policy. Therefore the Commission finds the use of the property is commercial and non-conforming and that the property can be used for a range of commercial uses. However that range has limitations.

With respect to the limits and the argument put forth by the Community - that allowing the courier service will open the flood gates on other non-conforming uses, the Commission does not agree. Council argued that if this appeal is allowed, "it will jeopardize our agricultural community - not only ours, but any other small community that's challenged by a business to expand into another business - If we allow a courier service as one of our permitted uses, then we'd have a hard time saying no to anything else." The Commission notes that within the municipal boundary there are approximately nine (9) properties that are classified as non-conforming uses, therefore any and all non-conforming uses will be confined to these locations.

It is the view of the Commission that any specific use made of a non-conforming property must meet a specific test. The test should be that any specific use should not be materially different from the existing non-conforming use and impact on the present uses of the surrounding land in such a way that it would be less "tolerable", moving away from conformity with Official Plan policy and the Zoning Bylaw. The Commission finds that the courier service does bring the use of the property towards such conformity.

Although not a factor affecting this decision, the Commission finds that the Appellant demonstrated a disregard for the Zoning Bylaw by excavation of the site before getting approval for the revised building plan and its location. The Commission cannot condone such disregard.

Based on the reason stated the appeal is hereby allowed. 

IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;

and

IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Island Lime Services Limited (the Appellant) of Brackley, against a decision whereby the Brackley Community Council denied permission for a courier service to locate in a commercial garage on parcel (Provincial Property Number 509042) located in Brackley, P.E.I.

Order

WHEREAS Island Lime Services Limited (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated August 6, 1993, against a decision of the Brackley Community Council;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown, P.E.I., on August 30, 1993, after due public notice;

AND WHEREAS the Commission has made a decision in accordance with the stated reasons;

NOW THEREFORE, pursuant to the Planning Act;

IT IS ORDERED THAT the appeal is hereby allowed.

DATED at Charlottetown, Prince Edward Island this 9th day of September, 1993.

BY THE COMMISSION:

John L. Blakney, Vice-Chairman

Clayton Bulpitt, Commissioner

Myrtle Jenkins-Smith, Commissioner 

1 Rogers, Canadian Law of Planning and Zoning, 1193 Release.

2 Ibid.

3 Ibid.

4 [1953] 1D.L.R. 28, [1952] O.W.N. 481, 103 C.C.C. 25 (C.A.).

5 Ibid.