Docket: LA94005
Order: LA94-06

 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 David S. Peardon on behalf of certain residents and landowners (the Appellants) of Montague, against a decision of the Montague Town Council to rezone from Residential (R1) to Commercial (C1), 212 Kennedy Street (Provincial Property Number 197954) located in Montague, P.E.I.

DATED the 13th day of June, 1994.

John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner
James Nicholson, Commissioner

Order

Appearances

1. For the Appellants

David S. Peardon

Appellant

2. For the Town of Montague

Kerr Scott

Councillor

3. For the Property Owner

Sean Michael Halley

Legal Counsel for Frank Lannigan and Kelly Lannigan

Reasons for Decision

I. BACKGROUND

In accordance with the Planning Act and the Town of Montague Zoning and Subdivision Bylaws, specifically Part 15, Sections 9 and 10, the Town Council of Montague may change a zoning designation of any parcel of land.

The matter before the Commission involves an appeal by David S. Peardon on behalf of residents and landowners, against a decision of the Montague Town Council to rezone property (Provincial Property Number 197954) from Residential (R1) to Commercial General (C1).

Frank Lannigan made application (no date indicated) to the Montague Town Council to rezone his property (Provincial Property Number 197954) located at 212 Kennedy Street from Residential (R1) to Commercial General (C1). (Exhibit 12.)

Town Council held a public meeting on the matter on Tuesday, February 15, 1994. (Exhibit 7.)

At a special meeting of the Montague Town Council on Friday, February 25, 1994, Council gave second and final reading and passed a motion in favour of rezoning the property. (Exhibit 5.)

On March 9, 1994, David S. Peardon appealed the decision of the Town Council to The Island Regulatory and Appeals Commission. (Exhibit 3.)

The Commission heard the appeal on Wednesday, April 20, 1994, in Montague.

II. EVIDENCE AND ARGUMENTS

A. Appellants

Arguments for the Appellants, as presented during the hearing, fall into two broad categories and can be summarized as follows:

1. The Impacts of Rezoning

A rezoning of the property for commercial use and developing a business which consists of a combined lounge and restaurant could constitute a nuisance to the residents of the area.

The residents of the area fear that rezoning the property for commercial use will lead to fighting, public drunkenness, excessive noise, and property damage. The residents believe that their security and safety will be affected which will lead to the degradation of their quality of life.

The Appellants contend that property values will also decrease if the property is rezoned and businesses continue to develop. The development, if permitted, will allow one person to profit at the expense of others.

2.    Planning Policy

The property in question is surrounded by residential homes and the proposed commercial development is totally incompatible. This rezoning goes against the natural zoning of the neighbourhood.

B. Town of Montague

Arguments for the Town of Montague can be summarized as follows:

No further commercial development can occur in the Tudor Hall building without additional parking. Council investigated all avenues to acquire more parking, however, the only available alternative is to rezone the subject property to commercial and develop this as a parking lot.

At the public meeting, the public voiced their opinion both for and against the rezoning proposal. Council weighed these arguments and decided that the need for parking was important. Based on the best interest of the Community, the Council made a decision to rezone the property commercial to allow the parking lot to be developed.

C. Property Owner

Arguments for the property owner can be summarized as follows:

In making its decision to rezone the property, Council considered the "larger" picture of what was good for the Community. Council made this decision after giving full consideration to the objections raised by area residents.

Council has determined that in order for the owner of the Tudor Hall to proceed with the development of this operation as a restaurant and lounge, additional parking is required. The existing building is an eyesore and if additional parking is required in the community, this may be the best use for the property. The parking lot will be well maintained and adequately landscaped.

D. Others

The Commission heard comments from other interested persons both for and against the rezoning.

III. DECISION

Having considered the evidence presented during the hearing, the Commission decided to deny the appeal.

During the hearing, Council argued that the proposed use of the Tudor Hall is not relevant to the issue of rezoning 212 Kennedy Street from Residential to Commercial. The Council argued that the matter before the Commission is the question of rezoning 212 Kennedy Street from Residential R1 to Commercial C1 and that the proposed use of the property for a parking lot is only incidental to activities related to the Tudor Hall.

As in other rezoning cases, the Commission holds the opinion that no individual owner has a statutory right to a rezoning.1

Generally on appeals the Commission believes it is required to exercise independent judgement on the merits of each application. However, the Commission is reluctant to interfere with the decision of elected representatives in the exercise of their discretion on rezoning applications. In these cases the Commission considers the following: 1. Whether Council complied with the statutory provisions of the Town's bylaws; 2. Whether Council's decision to rezone is discriminatory; 3. Whether Council acted in bad faith; 4. Whether Council acted in the interest of the public; and 5. The planning principles or standards upon which Council made its decision. This is not to say that in any other applications of similar nature the Commission would fetter itself by these principles and not consider other matters which may arise in a given case. However, in this case, the Commission's decision rests on its findings relevant to these principles.

1.    Whether Council complied with the statutory provisions of the Town's bylaws

The Commission finds that some statutes prescribe preliminary steps to reach rezoning decisions. Such requirements are designed to protect the owners of land affected by the rezoning. Where a statute directs the Council to give notice and hold a public meeting, failure to give sufficient notice will invalidate the decision.

Accordingly, the Commission finds that pursuant to Part 15, Sections 9 and 10 of the Town of Montague Zoning Bylaw, the Montague Town Council has the authority to amend the zoning designations but in so doing, must first give public notice of its intention.

           Section 9.

Before changing the zone designation of any parcel of land, the Town Council of Montague shall insert an advertisement giving notice of its intention to do so at least once a week for two successive weeks in a newspaper published or circulating in the area affected; the first of such notices to be published at least two clear weeks before the date fixed for consideration of objections.

Section 10.

The notice shall state the place where and the hours during which the regulations and the proposed amendment may be inspected by any interested persons and a time and place set for the consideration by the Council for objections.

In reviewing the public notice regarding this rezoning application, the Commission finds that a notice appeared in The Guardian newspaper. Council states the first of such notice was published on February 1 and a second was published on February 8, 1994. Although the notice does meet the general intent of the requirements for content, the Commission has concluded that this notice was not published "at least two clear weeks" as required.

The Commission refers to Section 23. (4) of the Interpretation Act of Prince Edward Island:

In the calculation of time expressed as clear days, weeks, months, or years, or as "at least" or "not less than" a number of days, weeks, months, or years, the first and last day, week, month or year shall be excluded. (emphasis added)

Pursuant to the provisions of this section, the Commission believes Council has failed to meet the strict requirements for notice.

However, the Commission does note that Council held a public meeting on February 15, 1994 to consider objections. The minutes of this meeting indicate that no individuals objected to the timing of the notice nor did any individuals state they were denied the right to comment on the proposed application. Further to this matter, the Commission heard no arguments during the public hearing that any individual objected to the timing of the notice. Therefore, the Commission concludes that a flaw in the notice did not place anyone at a serious enough disadvantage to warrant quashing Council's decision to rezone.

2.    Whether Council's decision to rezone is discriminatory

There are two primary factors to be considered on the issue of discrimination2: 1) Whether or not permission is given to one individual or group to rezone property while denying another request of similar nature and circumstance. 2) Establishing that Council had improper motives—deliberately making a decision injurious to one individual or group without regard to the public interest.

In this case, the Commission understands that Council received a request from Frank Lannigan to rezone the subject property (Exhibit 11). In the course of the hearing no evidence was presented to the Commission to convince it that Council members deliberately made the decision to injure one individual or group of individuals and without giving consideration to the public interest.

There is no evidence before the Commission that Council acted in a discriminatory manner in granting the rezoning request.

3.    Whether Council acted in bad faith

Bad faith infers that "the Council has acted unreasonably or arbitrarily and without the degree of fairness and impartiality required by a municipal government."3

Based on the evidence, it is clear to the Commission that Council decided to rezone the lot to improve the greater community good by solving ongoing vehicle parking problems in the area. That is, to properly plan for and deal with a growing parking problem. Although the rezoning encroaches an area zoned residential, the Council sufficiently demonstrated to the Commission that in this case the rezoning will serve a public good and that Council has not acted unreasonably or arbitrarily or in an unfair or partial manner.

4.    Whether Council acted in the interest of the public

The Commission heard evidence from Kerr Scott, Development Officer for the Town of Montague, stating that Council held a public meeting and considered the objections raised at that meeting.

Council's decision to rezone 212 Kennedy Street was viewed as a means to alleviate the parking problem in the area and in so doing, provide for safer vehicular access. Mr. Scott argued that in this case, the Council considered the objections raised at the public meeting, however the greater public interest outweighed the interest of the concerned residents.

In the case of the Appellants, arguments were presented stating that the rezoning of the property would lead to nuisance or undue harm. Also, the parking lot would be unsightly.

The Commission is of the opinion that Council gave careful consideration to the objections of local area residents, and made its decision with a view to the common good and benefit of the general public.

5.    The planning principles or standards upon which Council made its decision

The provisions pursuant to the Planning Act and the Municipalities Act, confer upon the Town of Montague extensive powers to regulate the use of land, buildings and structures. Among these powers is the authority to zone land as contained in Part 3: Zone and Zoning Maps in the Zoning By-law of the Town of Montague.

In this case, Council has made a deliberate decision to expand the commercial boundaries into an area zoned residential. The question is whether this decision is based on sound planning principles and standards.

In this case the facts are: (1) The general area across the street from the subject lot is experiencing intensive commercial and institutional activity. (2) The properties in the block containing the subject lot and fronting on Kennedy Street are zoned Residential Single Family (R1). The block is comprised of a vacant lot at the corner of Kennedy Street and MacLaren Avenue, a single-family home adjacent to the subject property and a single-family home which is currently rented on the opposite side of the subject property. (3) The subject lot contains a vacant residential building. (4) The remaining two lots near Riverside Drive are single-family residents. (5) Across the street from the subject property is land zoned Special Use (O2) consisting of a building operated by the St. John Ambulance Society and used on occasion as a bingo hall. (6) On the opposite corner of Kennedy Street and School Street is the Tudor Hall zoned for commercial use.

In this case, the Commission views the decision of Council and the planning strategy adopted by Council to be significantly different from the previous rezoning appeal involving Hilda Hilchey and Faye Fraser (Order LA93-10).

In that case, the Commission disagreed with the strategy adopted by Council to rezone property on Fraser Street from Residential Single- Family to Commercial. It was the opinion of the Commission that the approach used to amend the zoning of the area constituted checker boarding—that would leave a residential lot in the middle surrounded on three sides by lots zoned for commercial use.

As stated in a decision of the Land Use Commission involving Food City Limited "the encroachment of commercial development into residential areas creates major land use conflicts and usually an unwanted transition in land use." The Commission believes this statement to be valid, however the situation on Kennedy Street is one of a traditional residential area in transition, affected by past decisions to allow commercial uses across the street.

The Appellants argued that the rezoning would interfere with the residential quality of life in the neighbourhood. However, it is the Commission's opinion that historical decisions to allow commercial and institutional activity adjacent to the residential area has helped to expedite its transition from residential use as the preferred use. In these situations residential lots gradually lose their appeal as residential lots and become valued for potential uses more compatible with commercial and institutional activities. The task for the land use planning process in the Town is to determine to what extent the commercial area should expand.

During the hearing, staff of the Commission asked if any consideration was given to not rezoning the lot for commercial purposes because the existing size of the lot was far below the commercial lot size requirements under the bylaw. It is the Commission's view that if the entire block containing the subject lot was rezoned commercial, the subject lot would be included in the rezoning. Consequently, the size of the lot has little to do with whether or not the lot should be rezoned from residential to commercial. In the opinion of the Commission the matter of lot size will become relevant when an application for a building permit, in this case a permit for a parking lot, is considered by Council.

IV. CONCLUSION

A reality in urban development is that commercial areas do grow and often at the cost of residential neighbourhoods. The question which often confronts planners and municipal officials is when should commercial expansion be permitted to encroach residential areas. In this case, Council has made a conscious decision after considering public input that the appropriate time is now—a decision although not agreeable to a number of local residents, is clearly a policy decision to be made by the elected officials and should not be interfered with unless the decision violates these well-established principles. In this case, the Commission finds that Council complied with these principles.

The Commission heard evidence by Kerr Scott and Mayor Richard Collins that the Town has recently initiated a process to develop an official plan for the Town. As the plan develops, the Commission anticipates that Council will address the future of Kennedy Street and its role as a residential or commercial area. Area residents must be aware of the changing role of the lots fronting on Kennedy Street and that pressures associated with commercial development will continue. The reality is that with the increased development of commercial land, residents will continue to find their residential neighbourhood unstable until a comprehensive land use policy is adopted by the Town.

In the result, the Commission disallows the appeal.

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 David S. Peardon on behalf of certain residents and landowners (the Appellants) of Montague, against a decision of the Montague Town Council to rezone from Residential (R1) to Commercial (C1), 212 Kennedy Street (Provincial Property Number 197954) located in Montague, P.E.I. 

Order

WHEREAS David S. Peardon on behalf of certain residents and landowners (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated March 9, 1994, against a decision of the Montague Town Council;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Montague, P.E.I., on Wednesday, April 20, 1994, 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 denied.

DATED at Charlottetown, Prince Edward Island this 13th day of June, 1994.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Myrtle Jenkins-Smith, Commissioner

James Nicholson, Commissioner

1    Island Regulatory and Appeals Commission Order LA93-10, September 15, 1993.

2    Rogers, Canadian Law of Planning and Zoning, 1993, p.210.3. 3    Ibid., p.210.4.