Docket LA95014
IN THE MATTER of an Appeal by Fida Enterprises Ltd. against a decision by the Stratford Town Council, dated May 17, 1995
Order LA95-16BEFORE THE COMMISSION
on Thursday, the 12th day of October, 1995.
John L. Blakney, Vice-Chair
Carl Riggs, Commissioner
Emmet Kelly, Commissioner
Order
Contents
Appearances & WitnessesReasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses
1. For The AppellantCounsel:
David Hooley2. For Town of Stratford
Counsel:
John Mitchell
Reasons for Order
1. Introduction
This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, by Fida Enterprises Ltd. (the Appellant). Fida Enterprises Ltd. has appealed a decision of the Town of Stratford (the Town) to deny an application to re-zone property number 299503 from Agricultural Reserve (A1) to Residential Single Family Dwelling (R1).
The Commission commenced the appeal hearing in Charlottetown on October 10, 1995
2. Discussion & Findings
On April 4th 1995 the Appellant applied to the Town of Stratford ("Stratford" or the "Town") for a re-zoning of its land from Agricultural Reserve (A1) to Residential Single Family Dwelling (R1). On May 17th, 1995 the Town refused the re-zoning apparently relying on sections 4.1 and 4.2 of its Official Plan.
Fida Enterprises Inc. has appealed this decision. The Appellant submits through its legal counsel, David Hooley, that the municipality should not have considered its Official Plan and by doing so it has rendered its decision invalid. Mr. Hooley relies upon case law to the effect that an Official Plan has no force of law but is merely a statement of intention. If one wishes to find the provisions which may affect property owners rights one must look to the zoning bylaws rather than the Official Plan. We cannot disagree with these statements of law. However what was sought by the Appellant was a re-zoning.
Under subsection 78.(1) of the Town's Zoning Bylaw an application to re-zone is "deemed to be an application to amend" that Bylaw. In determining whether or not to allow the amendment we see nothing inappropriate in the Town consulting the Town's Official Plan. In fact not to consider the Official Plan would be seen to us to be improper. The Official Plan is a statement of the Community's planning policies. It was (or as Mr. Hooley pointed out should have been) the basis upon which the Zoning Bylaw was prepared. The Zoning Bylaw is merely the means by which the community implements its official plan. An Official Plan remains in force until amended or replaced. Therefore, to consider the amendment of the Bylaw by considering its policies would seem to us to not only be fitting, but imperative. Therefore the Appellant's preliminary objection is dismissed.
By letter dated the 11th day of April, 1995, the Town requested the Appellant to provide certain information to comply with subsection 78.(2) of the Town Zoning Bylaw. During argument it became apparent that this information was not provided by the Appellant prior to the Town making its decision of May 17, 1995. It would therefore appear that the Town's decision of May 17, 1995 was made without complete application to re-zone being before it. During argument by counsel on the preliminary matter disposed of above, it also became apparent that the Appellant, has experts to address the issue of whether the "Residential Area is developed to 75% of its capacity" as set out in Section 4.2 of the Town's official plan as well as other matters relevant to the re-zoning request.
The Commission specifically asked legal counsel for both the Appellant and the Respondent as to whether the application to re-zone could proceed to a full hearing before the Town if this Commission were to remit the matter back to the Town for a decision. We understood the counsel for the Town to say he believed the Town would be obliged to deal with the application and we understood legal counsel for the Appellant to state that despite his client's belief that the Town had demonstrated it had a closed mind on the subject and would not properly deal with the application, he believed the Applicant would complete its application.
We therefore determine that the purported decision of May 17, 1995 by the Town was a nullity as the Town did not have a complete application for it. Should the Appellant wish to continue its application for re-zoning, we believe it should place all relevant reports and evidence before the Town Council.
The Commission believes that the following is the procedure to be followed:
1. The Appellant provide to the Council a complete application comprising information addressing the issues within the official plan and zoning bylaws, as needed by Council to reach a decision.
2. A determination whether or not the official plan corresponds with current community realities relevant to the matter.
3. Consideration of the application and relevant information to determine whether or not the Town's planning policies contained in the official plan would be complied with if the zoning amendment were allowed. If the re-zoning does not comply with the official plan then determine whether or not Council wants to amend the official plan to permit the re-zoning. If the re-zoning complies with the existing or amended official plan then decide whether or not the re-zoning should be allowed within the framework of the existing or amended official plan.
4. If necessary, invoke the provisions of Section 18 of the Planning Act and/or Section 79 of the Zoning Bylaws to determine the views of the residents of Stratford on the matter.
3. Disposition
The decision of the Town Council of Stratford, made on the 17th day of May, 1995 to deny the application is a nulity and no appeal exists to the Commission pursuant to Section 28 of the Planning Act .
IN THE MATTER of an Appeal by Fida Enterprises Ltd. against a decision by the Stratford Town Council, dated May 17, 1995Order
WHEREAS Fida Enterprises Ltd. has appealed a decision of the Town of Stratford, dated May 17, 1995 to deny an application to re-zone property number 299503 from Agricultural Reserve (A1) to Residential Single Family Dwelling (R1);AND WHEREAS
the Commission commenced the appeal hearing in Charlottetown on October 10, 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 Town Council of Stratford, made on the 17th day of May, 1995 to deny the application is a nulity and no appeal exists to the Commission pursuant to Section 28 of the Planning Act ;
DATED at Charlottetown, Prince Edward Island, this 12th day of October, 1995.
BY THE COMMISSION:
John L. Blakney, Vice-Chair
Carl Riggs, Commissioner
Emmet Kelly, 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.