Docket LA96014
Order LA96-09

IN THE MATTER of an appeal by Leith MacKinnon against a decision by the Town of Cornwall, dated April 17, 1996.

BEFORE THE COMMISSION

on Thursday, the 8th day of August, 1996.

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

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1. For the Town of Cornwall

Witnesses:
Eldon I. Sentner, Chief Administrative Officer
Phil Wood, Planning Consultant

2. For the Appellant

Counsel:
Catherine M. Parkman

Witnesses:
Leith MacKinnon, the Appellant

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 Leith MacKinnon (the Appellant) against a decision whereby the Cornwall Town Council (the Council) denied a request to rezone land (Provincial Property Number 247866) from Two Family Residential (R2) to General Commercial (C1) located at 273 Trans Canada Highway.

In accordance with the Planning Act, the Cornwall Official Plan and the Cornwall Zoning and Subdivision Control Bylaws, the Town of Cornwall has the authority to approve the rezoning of land.

Leith MacKinnon submitted a letter on April 10, 1996 to Richard Carson, the Chairman of the Planning Board Committee, requesting the Planning Board rezone his property (Exhibit A1).

At a meeting held on April 11, 1996 the Planning Board considered the matter and decided to deny the request (Exhibit T6).

On April 12, 1996 Eldon Sentner, the Chief Administrative Officer for the Town, notified the Appellant by letter of the Planning Board's decision (Exhibit A2).

On April 17, 1996 Council considered the matter and passed a motion to accept the Planning Board's recommendation to deny the rezoning application (Exhibit T10).

The Appellant filed an appeal with the Island Regulatory and Appeals Commission (the Commission) on April 23, 1996 (Exhibit A3).

The Commission heard the appeal at a public hearing on July 3, 1996.

At the commencement of the hearing, the Commission raised a preliminary matter in regard to whether the Council made a decision respecting the Appellant's application for rezoning in the administration of its Bylaws. The Commission noted that none of the documentation submitted by the Town to the Commission indicated that the Council made a decision on the rezoning matter. During the hearing, Eldon Sentner representing the Town filed with the Commission minutes from the April 17, 1996 Council meeting which indicated the matter was discussed and a decision was taken by the Council regarding the application to rezone.

With the consent of both parties, the Notice of Appeal was amended to appeal the Council's decision of April 17, 1996 to deny the request for rezoning.

The hearing proceeded.

2. Discussion

The position of the Appellant may be summarized as follows:

The Appellant argued the Town erred in denying his application to rezone his property.

The Appellant submitted that rezoning this property would not interfere with any residential area. The land immediately to the north and west of the subject property is in agricultural use. A bulk feed mill and school are located across the highway. Except for the Appellant's house, there is no other residential land adjacent to the property.

The Appellant's legal counsel argued that the Town had an obligation to hold a public meeting before making a final determination not to rezone the land. Because a public meeting was not held, the Appellant submitted that the Town did not process the application in accordance with the provisions of the Bylaws and the Planning Act.

The Appellant requested the Commission send the application back to the Town for a proper decision in accordance with the provisions of the Bylaws and the Act.

The position of the Town may be summarized as follows:

In making its decision to deny the application for rezoning, the Planning Board and the Council considered a number of issues, including traffic and existing land uses, and decided that it was not in the best interest of the Town to spot zone a commercial property in a residential zone.

The Town stated that it was developing an Official Plan and that although the request for rezoning may be accommodated in the future, the Town was not prepared to rezone the land at this time.

In addition, the Town takes the position that the application was not complete and as a result did not meet the provisions of the bylaws.

The Town contends that it followed its Bylaws in making the decision to deny this application.

The Town requests the Commission deny this appeal.

3. Findings

After giving full consideration to the evidence submitted in this case it is the decision of the Commission to deny this appeal. The reasons for the Commission's decision are as follows:

As an administrative tribunal, the Commission on a matter of appeal, is required to exercise independent judgment on the merits of each appeal, render a decision and issue an order. On a matter involving the rezoning of land, however, the Commission believes that such decisions should normally be left to the elected Community Council, which has been entrusted by its residents to decide such discretionary matters. The Commission is reluctant to interfere with the decision of elected representatives in the exercise of their discretion and ultimately exercising their authority to make or amend bylaws.

As the Commission has stated in previous decisions involving the rezoning of land, we hold the opinion that no individual owner of property has a statutory right to a rezoning. It is normally up to the municipal council to decide whether or not to rezone land by following a specific process.

In considering this appeal, the Commission has examined the specific provisions for rezoning land as contained in the Cornwall Official Plan and the Cornwall Zoning and Subdivision Bylaws (specifically Sections 11.2 and 57).

The Official Plan sets out the following provisions for rezoning;

Council may hear applications to rezone or amend. Applications are to be made to council through the Administrative Officer. The Council will have the final decision on all matters regarding rezoning and amendments, subject only to the Minister's final signature of any bylaw amendment. Public meetings will be called for rezoning only if Council has decided to entertain such a rezoning.

Section 11.2 of the Bylaws states:

11.2 Council shall carry out any rezoning or other amendment to this bylaw in accordance with the provisions of the Planning Act.

and Section 57 of the Bylaws states:

57.1 An application for rezoning shall be deemed to be an application to amend this bylaw.

2. Any person applying for rezoning or an amendment shall apply in writing to the Council describing the proposed change and furnishing reasons in support of the application.

3. An application to rezone shall include the property tax number and a map showing the property sought to be rezoned; the name and address of the owners of the property; and if the applicant is not the owner, a statement as to the applicant's interest in the property.

In considering the Appellant's request to rezone his property, the Commission understands that because the Town is currently reviewing its Official Plan, the Planning Board is aware of current land use issues confronting the Town and a number of these issues were considered in the formulation of a recommendation by the Planning Board on the rezoning request. These issues were also considered by the Council in making its decision. The following excerpts illustrate the factors considered by the Planning Board and the Council:

  • In deciding this request the Planning Board (as contained in the minutes of April 11, 1996) found that: a commercial establishment in a residential zone is incompatible with the rest of the zone (Exhibit T6).
  • In a letter from Eldon Sentner, dated April 12, 1996 (Exhibit A2) the Appellant was advised that:

…they (Planning Board) felt it would not be in the best interest of the Town to spot zone a commercial property in a residential area.

The Town is presently working for a new Town Official Plan, which may in the future be able to accommodate your request.

  • The Minutes from the Council meeting of April 17, 1996 (Exhibit T10) state: the Planning Board felt that, since this was a residential area, it was not a good idea to spot zone. The Planning Board's recommendation was adopted by Council.
  • During the hearing, Richard Carson, Chairman of the Planning Board stated that the Planning Board had considered a number of issues when making its recommendation including land use and traffic related matters.

Having considered the submissions by both parties, the Commission finds that the Council properly exercised its discretion and its decision to deny the Appellant's request for rezoning was made in compliance with the provisions of the Bylaws and the Act.

The Commission is satisfied that the Planning Board and the Council gave proper consideration to the request and made a decision which they believe was in the public interest. The Appellant did not submit enough substantive evidence to demonstrate that Council did err.

With respect to the procedural issue raised by the Appellant, the Commission disagrees with the Appellant's submission that pursuant to the provisions of Section 18 of the Planning Act, Council was required to hold a public meeting before deciding this matter.

Section 18 of the Planning Act states:

18. (1) Before making any bylaw the council shall

(a) give an opportunity to residents and other interested persons to make representation; and

(b) at least seven clear days prior to the meeting, publish a notice in a newspaper circulating in the area indicating in general terms the nature of the proposed bylaw and the date, time and place of the council meeting at which it will be considered.

(2) Where a bylaw amendment requires an amendment to the official plan pursuant to subsection 15(2), the council may consider the official plan amendment concurrently with the bylaw and shall

(a) indicate in general terms, in the notice published under clause (1)(b), the nature of the proposed plan amendment; and

(b) give the planning board an opportunity to comment on the plan amendment prior to adoption of the amendment.

The Commission finds that the requirement to hold a public meeting applies only in the circumstances where a council decides to make a bylaw or amend a bylaw. The public meeting is required to receive comments from the public if the Council wants to amend the bylaw. It seems to be clear that no public input would be required if no amendments are contemplated by the Council. In this case the decision of the Council was not to rezone the property and therefore no amendment was required.

For the above reasons the appeal is therefore denied, consequently the Commission will not order the Council to reconsider the application for the rezoning.

4. Disposition

An Order denying the appeal will therefore be issued.

IN THE MATTER of an appeal by Leith MacKinnon against a decision by the Town of Cornwall, dated April 17, 1996.

Order

WHEREAS the Appellant appealed a decision by the Town of Cornwall dated April 17, 1996;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on July 3, 1996 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 Act

IT IS ORDERED THAT

1. The appeal is denied.

DATED at Charlottetown, Prince Edward Island, this 8th day of August, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Emmett Kelly, 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.