Docket LA96014
Order LA96-11

IN THE MATTER of a Request for Reconsideration of Commission Order LA96-09 by Leith MacKinnon.

BEFORE THE COMMISSION

on Friday, the 4th day of October, 1996.

John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Emmett Kelly, Commissioner

Order

Contents

Submissions

Reasons for Order

1. Introduction

2. Discussion

3. Disposition

Order

Submissions

Written submissions were filed by:

1. For The Appellant

Counsel:
Catherine Parkman

2. For The Town of Cornwall

Witness:
Eldon Sentner

Reasons for Order

1. Introduction

On April 10, 1996, Leith MacKinnon (the Appellant) submitted a letter to the Town of Cornwall (the Town) to rezone Provincial Property Number 247866, from Two Family Residential (R2) to General Commercial (C1) located at 273 Trans Canada Highway.

On April 12, 1996, Eldon Sentner, the Chief Administrative Officer for the Town, notified the Appellant by letter that his request for rezoning was denied.

On April 23, 1996, Leith MacKinnon appealed this decision to the Island Regulatory and Appeals Commission (the Commission). The Commission heard the appeal on July 3, 1996 and issued Order LA96-09 on August 8, 1996 - denying the appeal.

By letter dated August 14, 1996, Catherine Parkman, on behalf of the Appellant, requested the Commission reconsider the reasons for its Order LA96-09. A copy of this request and supporting documentation filed by the Appellant was forwarded to Eldon Sentner for comment. Mr. Sentner responded by letter dated September 5, 1996.

2. Discussion

In the submission requesting the Commission review its decision, Catherine Parkman states the process contemplated by the Planning Act, Municipalities Act and the Official Plan/Zoning By-Laws for amending by-laws or re-zoning is to provide Council with as much information as possible in order to make an informed decision as to whether or not the proposed amendment/rezoning change should be made to the bylaws, whether it complies with the Official Plan, the Zoning and Development Bylaw, etc.

The position taken by the Appellant is that the Commission's decision effectively shortcuts this process by allowing the Council to decide at first instance whether or not it will make a decision to amend/re-zone and then deny the amending/re-zoning proposal immediately without hearing any information from either the public or the applicant with respect to the proposed project. The Appellant argues that a Council cannot make an informed decision without the information which can be gathered during a public meeting from the members of the general public and the project developer.

The Appellant contends that pursuant to the provisions of Section 18.(1) of the Planning Act, the requirement to hold a public meeting applies in all requests for amending/re-zoning; Council cannot pick and choose, and decide which requests go on to the public meeting stage and which requests cannot proceed any further.

In this case, Ms. Parkman argues that the section in the Official Plan indicating Council "may hear applications to re-zone and amend" cannot override the provisions of Section 18 of the Planning Act, and therefore, the Town of Cornwall failed to follow its own process for dealing with re-zoning/amending requests.

In its submission on this matter, the Town of Cornwall takes the position that Ms. Parkman has offered no new facts or evidence in her letter and is essentially stating that the Commission made an error in interpreting the law. The Town contends that given the fact that no new evidence has been produced, it would be highly inappropriate for the Commission to re-open this case. The Town further contends that an appeal of this sort should be addressed to the Courts, not back to the administrative body which made the decision in question.

The Town believes that with respect to re-zoning applications, public meetings are held to inform residents and landowners of proposed changes so that council may have the benefit of their comments. The Town submits in response to the request for reconsideration that where an application to rezone has no merit it would be a waste of public funds and needless concern to residents and landowners to hold a public meeting.

The Commission has considered the request for reconsideration filed by the Appellant on August 14, 1996 and the submission filed by the Respondent on September 5, 1996. The Commission's predecessor, the Public Utilities Commission, has set out the circumstances in which the discretion to exercise such a power should be used and the procedure to be adopted in considering such a request.1

The Commission finds the issues raised in Ms. Parkman's request were raised or could have been canvassed at the original appeal hearing. Ms. Parkman has advanced no new evidence and has not suggested that there has been any significant change of circumstances which would justify the Commission to reconsider its decision.

3. Disposition

The Commission has considered the submissions of the parties and determines that it will not reconsider its reasons for Order LA96-09.

IN THE MATTER of a Request for Reconsideration of Commission Order LA96-09 by Leith MacKinnon.

Order

WHEREAS by written notice dated August 14, 1996, the Appellant requested the Commission reconsider the reasons for its decision in Order LA96-09;

AND WHEREAS the Town of Cornwall responded to the Appellant's submission on September 5.

AND WHEREAS a request for reconsideration may be carried out pursuant to the provisions of Section 12 of the Island Regulatory and Appeals Commission Act;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act

IT IS ORDERED THAT

The Commission is exercising its discretion to deny the Appellant's request for reconsideration.

DATED at Charlottetown, Prince Edward Island, this 4th day of October, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Anne McPhee, Commissioner

Emmett 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.

1 The Public Utilities Commission, Prince Edward Island, Case No. E20906 and Order No. E90-8, May 2, 1990.