Docket LA94042
Order LA95-12IN THE MATTER of an appeal by Carmen Simmons and Prime Mini & Modular Homes against a decision by the Community of Brackley date November 21, 1994.
BEFORE THE COMMISSION
on Friday, the 16th day of June, 1995.
John L. Blakney, Vice-Chair
Clayton Bulpitt, Commissioner
Anne McPhee, Commissioner
Order
Contents
Appearances & WitnessesReasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses 1. For The AppellantPaula MacKinnon Legal Counsel
Carmen Simmons Appellant
John MacLeod Witness
Sheila MacKinnon Witness2. For The Community
Charles Keizer Legal Counsel
Ken Rodd Chairman, Community Council3. Public
Andrew Palmer Resident
Reasons for Order
1. Introduction
This is an appeal under the Planning Act, R.S.P.E.I. 1988, Cap. P-8, by Carmen Simmons and Prime Mini & Modular Homes (the Appellant). The Appellant is appealing a decision whereby the Brackley Community Council (the Council) denied an application to alter or intensify a non-conforming use of property (number 671834) for the sale of mini and modular homes.
In accordance with the Planning Act, and the Community of Brackley 1988 Official Plan and Zoning & Subdivision Bylaws, the Community Council may allow a non-conforming use to be intensified or altered.
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.
On August 23, 1994 Carmen Simmons, on behalf of Prime Mini & Modular Homes submitted a request to Council to "construct a business on the lot in Brackley previously zoned commercial for the use of Simmons Landscaping Ltd., and other businesses. This business will be involved in selling Mini & Modular Homes for McLaughlin Homes Ltd. of Woodstock N.B. on a dealership basis."(Exhibit B9)
On November 21, 1994, Council notified the Appellant in writing that his request was denied.(Exhibit B17)
On December 13, 1994 Paula MacKinnon, on behalf of Appellant appealed the decision to Island Regulatory and Appeals Commission.(Exhibit A1)
The Commission heard the appeal over a four day period - March 7, 15, 31 and April 3, 1995 in Charlottetown.
2. Discussion & Findings
The case for the Appellant and the grounds for appeal are summarized in a letter received by the Commission on December 13, 1994:
- The proposed business use of the property is not substantially or materially different from former or existing commercial uses of the property;
- The Council erred in its application of Section IV Subsection 8;
- The Council erred in its use of their discretion under Section IV Subsection 8;
- The proposed use is less offending than previous recognized uses of the property;
- The mini homes to be placed on the property are accessory buildings and are incidental in use to the office of Prime Mini and Modular Homes located in the residence of Carmen Simmons on the same property;
- The Council was biased against the Appellant in their decision making.
The Appellant requests the Commission to overturn the decision of Council.
The case for the Community Council is summarized in the letter of November 21, 1994 denying the Appellant's request. (Exhibit B17) The Official Plan describes the Community as a "community of people strongly attached to a rural and agricultural way of life". The bylaws contain only one zone and this is for agricultural use. There are no provisions in the plan for commercial or industrial activity. Therefore, the Council voted to reject the application. Council argued that the dealership is having harmful effects on the immediate neighbors and interferes with their enjoyment of their property both in an aesthetic and monetary sense.
Council directed Mr. Simmons to cease the dealership and remove all mini-homes from the property.
The Commission should dismiss the appeal.
The Commission has given full and careful consideration to the evidence and the following is its decision and reasons.
Unlike other municipal bylaws that establish the parameters for permitting a non-conforming use, the bylaw in this case, specifically Section 7, unfortunately is general and therefore it is left to the Commission to determine the parameters of what is an acceptable use.
In order to establish these parameters we must refer to other jurisdictions and authorities.
Normally, non-conforming uses of land arise when a community or municipality adopts an official plan and zoning and subdivision control bylaw that establishes a land development pattern for the future. The official plan sets the policy and the bylaw specifically ensures that the actual development of land within the municipal jurisdiction follows the plan. The zoning bylaw sets out the actual zones where the municipal council has decided to allow a particular type of development to occur.
A municipality's land base is usually delineated into residential zones, commercial zones, industrial zones and others. In this case the Community of Brackley has adopted an Official Plan and Zoning and Subdivision Bylaw that delineates one Zone - the Agriculture (A1) Zone.
Inevitably, at the time an official plan and bylaws are adopted not all existing uses of land fit the intended uses for the zone. In such cases municipal councils recognize the landowners right to continue to use their land as a legally non-conforming use at the time the official plan and bylaw are adopted. The Community Council of Brackley adopted this principle when it enacted Section 7 of the Zoning and Subdivision Bylaw.
As the Commission explained in its decision and order of 1993 regarding an appeal by Island Lime Services Limited - Order LA93-9 - the intent of a non-conforming use bylaw is to eventually eliminate any non-conforming use or at the very least have it comply with the permitted uses in the Zone. The Commission relied on the Canadian Law of Planning and Zoning where Rogers states:
"This is based on the premise that such a use is undesirable because it is incompatible with the existing permitted use but it is to be tolerable because it was a lawful use prior to its prohibition by by-law."
Through the passage of time, it is expected that a non-conforming use will eventually be brought into conformity.1 Once the use is terminated, the exemption is lost and the bylaw must then be complied with by the owner. So if the contravening use ceases, the bylaw thereupon becomes applicable and the land cannot thereafter be used for such purpose or any purpose except those permitted by the bylaw.
In Myung-Sik Seo v. Tsoraklidis, the Ontario Municipal Board found that "non-conforming uses should in time disappear or comply with existing land use controls".2 In this case, the Ontario Municipal Board found it important not to encourage changes in legal non-conforming uses so as to perpetuate them but to provide some limited flexibility only where there is similarity in purpose between the respective uses or a greater compatibility of the proposed use with the permitted uses in the bylaw. Although the Ontario Municipal Board is referring to provisions under the Planning Act of Ontario it is consistent with Rogers interpretation of non-conforming use.
Stanley M. Makuch in Canadian Municipal and Planning Law describes non-conforming use as: "an undesirable and inappropriate use, at least in the particular location in which it is found ... the effect is that the use will wither away and die..."3
The Commission finds that based on these well established principles any land being used for purposes other than those permitted under the Agriculture (A1) Zone at the time the bylaw was adopted would fall into a non-conforming use category.
In the instant matter, the Commission learned from the evidence that the Appellant had operated a wide variety of business ventures from the property including, inter alia a restaurant, grocery store, tourist cottages and auto sales. In addition, one building on the property has been used as a real estate office. Based on the evidence the Appellant established that the auto sales business had discontinued prior to November, 1988 or when the Official Plan was approved by the Land Use Commission and prior to January 25, 1989 when the Zoning and Subdivision Bylaw was enacted. As a result, the Commission finds, based on the evidence, that at the time the bylaw was adopted the use of the property was for the storage of landscaping equipment and the building was used for a commercial sales office. Both uses are considered to be non-conforming.
When one tries to decide whether or not a use can be made of land in a Community with an Official Plan and Bylaws, it is usually a simple matter of referring to the appropriate zone and determining whether or not the proposed use falls within the list of permitted uses. However, in the case of non-conforming use there is no list of permitted uses to allow one to determine clearly if the proposed use complies with the Plan and Bylaws. When one applies the principles of non-conforming use to determine whether a proposed use is acceptable on a specific site we are limited to examining the nature of the uses for that site since the bylaw was adopted. A comparison cannot be made with what was accepted or would be acceptable as a non-conforming use on some other site. In the Commission's view what might be accepted as a non-conforming use on one site may not be accepted on another because it does not move the use of the property closer to conformity in the zone.
In June of 1994, the Community issued a building permit to the Appellant to erect a building to be used as a residence. The Appellant's proposal is to operate from the existing office, a sales office to sell mini and modular homes and to use the mini home, for which a permit was recently issued, as a residence and display unit. In addition the Appellant proposes to store up to six mini and modular homes on the property for display purposes. Therefore, the Commission finds there are two distinct components to the Appellant's proposed business venture - one component is the selling of the mini and modular homes, which as Mr. Simmons stated will primarily be carried out from the sales office. The second component is the storing of mini and modular homes on the property for display and storage purposes. To reach its decision the Commission concentrated on these two distinct components.
The test for non-conforming use as set out in the Island Lime Services Limited decision is to determine whether the proposed uses are substantially or materially different from the existing commercial uses, which were deemed to be legally non-conforming and whether the proposed use is more compatible or "less non-conforming" than the previous uses of the property at the time the bylaw was adopted.
The Commission heard evidence presented by Council and Andrew Palmer, who resides on a neighboring property, that the use of the property for the sale and storage of mini and modular homes has and will continue to detract from neighboring properties. It was their contention that the increased traffic, the illumination of the property and the potential for storing 3-6 mini and modular homes on the property would have a negative effect on the surrounding uses.
The Commission, having considered the evidence presented, is satisfied that the previous existing and legally non-conforming use of the property was for the storage of landscaping equipment with the office being maintained for "sales" albeit of a different nature and for a different product than that proposed.
The proposed use of the property does not conform to the Commercial Use Policy of the Official Plan: "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." However, the Commission finds that the act of selling mini or modular homes, is not significantly different nor less tolerable than previous "sales" ventures.
When one applies the principles of non-conforming use as previously described, the use of the property as a commercial venture must move toward conformity with the uses permitted within this zone. Once in conformity, the use of the property may not revert back to a non-conforming use.
Consequently, the Commission believes the Appellant is entitled to use the existing office to carry on his commercial sales business. As for the storage of display units it is the Commission's view that the storage of mini and or modular homes on the property significantly intensifies the use of the property in such a way that it would be less tolerable and moving away from conformity with the Official Plan and Zoning Bylaw.
In the result, the Commission allows the non-conforming use to continue and the existing office to be maintained for the sale of mini and modular homes. The Community has already issued a permit for a single family residence on the site and it is reasonable to allow the Appellant to use that unit for display purposes. In order not to compromise the Official Plan or Bylaw the storage of mini and modular homes on the site for display purposes will be limited to the existing mini home now used for residential purposes.
In respect to the matter raised by the Appellant that written permission from Council should not be required, the Commission agrees with Council that the proposal to sell and store mini and modular homes would result in the alteration of existing uses. Therefore, the Commission finds that pursuant to the provisions of Section IV.8. of the Bylaws, written permission is required.
In consideration of the argument that the mini-homes are accessory buildings and incidental in use to the office which is located in the residence of the Appellant, the Commission has reviewed this matter and finds no merit in this argument.
On the matter of bias, the Appellant contends that the Chairman and members of Council were influenced in their decision by adjacent property owners who were not in favor of the Appellant's proposal. In considering this argument, the Commission believes that Council including the Chairman must act independently and make a decision within the authority provided to them. If this independence is compromised then there is some argument for the presence of bias or apprehension of bias. In the present case, the Commission believes there is not sufficient evidence to support the argument that the Council was biased. The Commission believes that Council made a decision on the application within the framework of the Official Plan and Bylaws and rendered a decision which they believed to be in the interest of the Community. The Commission finds that there is not sufficient evidence to send the matter back to Council on the basis of bias or apprehension of bias.
In the result, the Commission has decided to uphold the appeal to permit the Appellant to conduct sale transactions from the existing sales office building. The permit shall not include the display and storage of mini/modular home units other than the one now used as a single family dwelling and display unit. No other unit will be permitted.
3. Disposition
An Order quashing the decision of Council will therefore issue.
Reasons for Order
IN THE MATTER of an appeal by Carmen Simmons and Prime Mini & Modular Homes against a decision by the Community of Brackley date November 21, 1994.
Order
WHEREAS
Carmen Simmons and Prime Mini & Modular Homes (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission) in written notice dated December 9, 1994, against a decision of the Brackley Community Council (the Council);AND WHEREAS
the Commission heard the appeal at public hearings conducted in Charlottetown on - March 7, 15, 31 and April 3, 1995 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 ActIT IS ORDERED THAT
1. The decision of the Council is quashed.
2. The non-conforming use may continue to the extent that the existing office may be maintained for the sale of mini and modular homes and the property used for storage of landscaping equipment.
3. The mini home now located on the site shall be used primarily as a single family dwelling and secondarily as a display unit.
4. The storage of mini and modular homes on the site for display purposes is prohibited except for the existing mini home now used for residential purposes.
DATED
at Charlottetown, Prince Edward Island, this 16th day of June, 1995.BY THE COMMISSION:
John L. Blakney, Vice-Chair
Clayton Bulpitt, Commissioner
Anne McPhee, 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.
1
Rogers, Canadian Law of Planning and Zoning, 1993 Release, p.210.23.2
Myung-Slk Seo v. Tsoraklidis, Ontario Municipal Board Reports, Volume 20, 1987 p.227.3
Makuch, Stanley M., Canadian Municipal and Planning Law, Toronto, Ontario, 1983 p.262.