Order LA96-07 - LA95014 - Planning - Request by Fida Enterprises for Reconsideration of Order LA95-16 (May 29, 1996)

Docket LA95014
Order LA96-07

IN THE MATTER of a Request for Reconsideration of Commission Order LA95-16 by Fida Enterprises Ltd.

BEFORE THE COMMISSION

on Wednesday, the 29th day of May, 1996.

John L. Blakney, Vice-Chair
Carl Riggs, Commissioner
Emmett Kelly, Commissioner

Order

Contents

1. Introduction

2. Discussion

3. Disposition

Appearances & Witnesses

Written submissions were filed by:

1. For The Appellant

Counsel:
David Hooley

2. For The Town of Stratford

Counsel:
John K. Mitchell

Reasons for Order

1. Introduction

On April 4, 1995, Ian Smith, on behalf of Fida Enterprises Ltd. (the Appellant), applied to the Town of Stratford (the Town) to rezone Provincial Property Number 299503, from Agricultural Reserve (A1) to Residential Single Family Dwelling (R1).

On May 17, 1995, the Stratford Town Council notified Ian Smith, by letter, that his request for rezoning was denied.

On June 6, 1995, Ian Smith appealed this decision to the Island Regulatory and Appeals Commission (the Commission). The Commission heard the appeal on October 10, 1995 and issued a decision on October 12, 1995. The Commission ordered:

The decision of the Town Council of Stratford, made on the 17th day of May, 1995 to deny the application is a nullity and no appeal exists to the Commission pursuant to Section 28 of the Planning Act.

By letter dated November 2, 1995, David Hooley, on behalf of the Appellant, requested the Commission reconsider the reasons for its Order LA95-16. A copy of this request and supporting documentation filed by the Appellant were sent to John Mitchell, the Respondent's solicitor for comment. Mr. Mitchell responded by letter dated November 6, 1995.

2. Discussion

The Appellant presents three issues upon which he requests the Commission to reconsider its decision. These issues are summarized as follows:

The Town had no legal right to deny approval for the rezoning based on the provisions of the Official Plan. A zoning by-law and subdivision by-law are the sole legal tools through which the policies stated in the Official Plan are implemented by law. Section 4.1 and 4.2 of the Official Plan cannot form a lawful basis to refuse the application. Mr. Hooley contends the Commission erred in law in finding that rezoning does not affect property owner rights.

The Town of Stratford also erred in law, first by not holding the required public hearing before rendering its decision and second by relying on Section 4.2 of the Official Plan and not any applicable provision of the zoning by-law, in denying the rezoning request.

The Town had prejudged the application in that their decision was made before additional information the Town had requested was provided by the applicant. Mr. Hooley states that the Appellant would strongly have preferred the Commission to be the tribunal hearing its rezoning request in view of the apparent pre-judgment of the issue by the Town.

In a subsequent letter to the Commission dated December 8, 1995, Mr. Hooley contends the Official Plan expired in 1989 and it was not proper for the rezoning application to have been initially refused on the basis of what was contained in the expired Official Plan, and that for the purposes of Council's future consideration of the application, it is not proper that the outdated and expired Official Plan be a factor in its deliberations. Mr. Hooley requests Council be required by the Commission to deal with the application on the basis of the Zoning and Development By-law alone.

In response to the Appellant's request for reconsideration, Mr. Mitchell submits on behalf of the Town that the Commission and the Town made no error in law. Mr. Mitchell contends that an application to rezone is deemed, by reason of Section 78(1) of the Town's zoning by-law, an application to amend the by-law and based on the provisions of Section 15.(2) of the Planning Act, the Town must refer to the Official Plan.

The Commission has considered the request for reconsideration filed by the Appellant on November 2, and subsequent submission filed on December 8, 1995 and the submissions filed by the Respondent. 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 request¹. In deciding whether to allow the Appellant's request the Commission must first determine whether to conduct a rehearing.

The Commission finds the issues raised in Mr. Hooley's requests are matters which were raised or could have been canvassed at the original appeal hearing. Mr. Hooley has advanced no new evidence nor has he 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 LA95-16.

IN THE MATTER of a Request for Reconsideration of Commission Order LA95-16 by Fida Enterprises Ltd.

Order

WHEREAS by written notice dated November 2, 1995, the Appellant requested the Commission reconsider the reasons for its decision in Order LA95-16;

AND WHEREAS the Town of Stratford responded to the Appellant's submission on November 6 and December 2, 1995.

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

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

DATED at Charlottetown, Prince Edward Island, this 29th day of May, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Carl Riggs, 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.