Docket LA97018
Order LA97-14

IN THE MATTER of an appeal by Tiny Tot Day Care Inc. against a decision by the City of Charlottetown, dated July 14, 1997.

BEFORE THE COMMISSION

on Thursday, the 20th day of November, 1997.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Clayton Bulpitt, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Background

3. Discussion

4. Findings

5. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Counsel:
John Fortier

Witnesses:
Carl Connick
Marilyn White

2. For the Respondent

Counsel:
David Hooley

Witness:
Don Poole

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Tiny Tot Day Care Inc. (the Appellant) against a decision by the City of Charlottetown (the City) to deny a request to amend the provisions of the Public and Institutional (O1) Zone in the Community of Sherwood Zoning Bylaw in order to increase the number of children permitted in a day care centre from 50 to 77.

On June 4, 1997 Carl Connick and Marilyn White on behalf of Tiny Tot Day Care Inc. submitted an application to the City requesting an amendment to the provisions of the Public and Institutional (O1) Zone under the Zoning Bylaw to allow for an increase in the number of children permitted in a day care centre from 50 to 77 (Exhibit R3).

By letters dated June 10, 1997 and June 16, 1997, the City notified adjacent property owners of the Appellant's request and that a Public Meeting was scheduled for June 25, 1997 (Exhibits R4 and R5).

According to the minutes submitted by the City, the City Council held a public meeting on June 25, 1997 (Exhibit R7).

At a meeting of the Planning Board on July 7, 1997, the Planning Board passed a motion to recommend Council deny the request for an amendment (Exhibit R8).

On July 18, 1997 Council voted to deny the request for an amendment (Exhibit R9) and passed a resolution on this matter (Exhibit R10).

The Appellant filed an appeal with the Commission on July 24, 1997 (Exhibit A1).

The Commission heard the appeal at a public hearing on October 22, 1997.

2.  Background

The subject property is located at 195 Kensington Road in the former Community of Sherwood.

Under municipal amalgamation in 1995, the former Community of Sherwood now forms part of the City of Charlottetown. On matters related to land use the City is guided by the Charlottetown Area Municipalities Act, R.S.P.E.I. 1988, CAP. C-4.1 and the Planning Act. However, because of the transitional provisions in the Charlottetown Area Municipalities Act, the Community of Sherwood Zoning Bylaw and the Sherwood Official Plan continue to remain in effect until such time as the City adopts a new Bylaw and Official Plan. During this transitional phase, the City is also guided by its Planning Administration and Procedures Bylaw.

3. Discussion

The Appellant's position may be summarized as follows:

Carl Connick and Marilyn White, on behalf of Tiny Tot Day Care Inc. submit that they applied to amend the provisions of the Public and Institutional (O1) Zone to increase the capacity of the number of children allowed in a day care home from 50 to 77. They contend that they have added additional room to their building and now have the capacity to expand their operation. They state that the day care centre meets the requirements of the Child Care Facilities Act and that the Licensing Board is prepared to issue two licenses which will allow for an increase in the number of children.

Carl Connick and Marilyn White contend that the bylaws for the other communities which now make up the City do not establish a ceiling on the number of children allowed within a day care home and, as a result, other day care centres in the City are operating with multiple licenses and are accommodating in excess of 50 children. They believe that the number of children permitted in a day care centre in other communities within the City is limited only to the provisions of the Child Care Facilities Act.

They further argue that City staff were aware of their intentions to increase the number of children in the day care centre when they applied for and received a building permit, and that they proceeded with the extension to the existing day care centre based on their assessment that they would have a good chance of obtaining an amendment to the Bylaw.

They state that they have taken into consideration the concerns raised by residents at the public meeting held on June 25, 1997 and have or are in the process of addressing these.

During the hearing, they raised the issue that when they were notified of City Council's decision to deny their request, no reasons were provided.

Carl Connick and Marilyn White request the Commission to allow the appeal and overturn the City's decision.

The City's position may be summarized as follows:

The City submits that in making its decision to deny the request for a bylaw amendment, the Planning Board and the City Council considered a number of issues, including increased traffic, the existing residential land uses and the concerns of immediate neighbours, and decided that it was not in the best interest of the City to increase the number of children permitted in a day care centre in the Public and Institutional (O1) Zone under the Bylaw.

The City argues that Carl Connick and Marilyn White had knowledge of the zone requirements and were aware of the risk involved when they received a building permit to carry out the expansion of the existing day care centre.

The City states that the subject property is zoned Public and Institutional (O1) and the surrounding area is primarily a residential area with most properties zoned Residential Single Family (R1) or Residential Two-Family (R2). Prior to the commencement of the Appellant's operation, a church and church-run day care consisting of 15 children operated in the building located on the subject property.

The City submits that residents at the public meeting held on June 25, 1997 voiced concerns regarding noise and traffic.

The City states that a new Official Plan and Zoning Bylaw are being developed for the City and that although the Appellant's request for a bylaw amendment may be considered in the future, the City was not prepared to increase the capacity of children in this zone at this time.

The City argues that it followed its bylaws in making the decision to deny this request.

The City requests that the Commission deny this appeal.

4. 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 the Commission has stated in previous decisions on matters involving the rezoning of land or an amendment to the provisions of a zoning bylaw, the Commission believes that such decisions are discretionary on the part of Council and should normally be left to the elected municipal council, which has been entrusted by its residents to decide such 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.

However, as an administrative tribunal, the Commission believes it is required to exercise independent judgment and in the form of a hearing de novo the Commission must consider the merits of each application and, if it is necessary, the Commission could substitute its decision for the one appealed.

The Commission has examined the provisions for amending bylaws as contained in the City's Planning Administration and Procedures Bylaw (specifically sections 10.27(a) and 10.28) and the Planning Act (specifically section 18(1)).

Section 10.27(a) of the Planning Administration and Procedures Bylaw states:

Subject to Section 10.22, any person desiring an amendment to the provisions of this Bylaw and the applicable Z.B.D.S. Bylaw(s) shall apply to the Development Officer in writing describing in detail the reasons for the desired amendment and requesting Council to consider the proposal.

Section 10.28 of the Planning Administration and Procedures Bylaw states:

(a) Upon receipt of a proposed amendment and the required funds, the Development Officer shall advise the Council who shall then request the Planning Board to call a public meeting, in conformity with Section 18(1) of the Planning Act. The Planning Board shall publish a public notice of this meeting, in not less than two issues, in two consecutive weeks, in a daily newspaper circulating in the area, with the last public notice circulating one week prior to the meeting;

(b) The Planning Board may require the applicant to provide such other information as it deems necessary and in addition to that required in the applicable Z.B.D.S. Bylaw(s).

(c) The Planning Board shall review the Planning Act, the policies of the City and the Official Plan, if any, to ensure that the amendment will not be contrary to any policy, and make a recommendation to Council regarding approval or denial of the proposed amendment. Council shall make the final decision.

(d) When the Council has rendered its decision, the Development Officer shall, within five (5) business days, notify the applicant by ordinary mail, of Council's decision including the reasons for approval or denial.

...

Section 18(1) 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 representations; 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.

The evidence supports that the Planning Board notified the public and held the required public meeting. The minutes of Planning Board, dated July 7, 1997, state that the Planning Board "members reviewed the application and felt that with the number of people that attended the public meeting, signed the petition and the area being primarily residential, the request for the increase in numbers would only cause further concerns within the neighbourhood. As well this text amendment to the Public and Institutional (O1) Zone would also impact on other areas of the Sherwood neighbourhood."

In considering this appeal, the Commission finds that the Council complied with the provisions of the Bylaws and the Planning Act and appropriately exercised their discretion to deny the application for a bylaw amendment.

The Commission finds that the City has adequately considered the merits of this application and although the representatives for the Appellant do not agree with the City's decision, the evidence put forward by them on the merits of a bylaw amendment are not substantive enough for the Commission to find that the City's decision is unreasonable or based on the wrong factors.

In the Commission's view, it is unfortunate that the Appellant proceeded with the expansion of the building with the anticipation that the bylaw would be amended to allow for an increase in the number of children. We note that in the approved Building Permit for the renovations and extension of the building (Exhibit R20) it was specifically stated as a requirement: "combined day care up to a maximum of 50 children". We also note that Carl Connick and Marilyn White were forthright in acknowledging they were aware of the capacity limits but felt that the extension was a reasonable risk on their part.

The Commission empathizes with the frustration that Carl Connick and Marilyn White have experienced over the apparent inconsistency in the various zoning bylaws of other communities within the City with respect to day care centres. The Commission believes that this is an issue that the City must deal with in the development of its new Official Plan and Zoning Bylaw. The Commission encourages Carl Connick and Marilyn White, and in fact all residents, to take an active role in participating in the development of the City's new Official Plan and Bylaw. This process may allow Carl Connick and Marilyn White another opportunity to address their concerns.

The Commission also believes that Carl Connick and Marilyn White should be commended for their efforts in dealing with the concerns of the area residents and for the essential care giving service that they provide to their clients.

However, for the reasons stated, the Commission must deny the appeal.

With respect to the issue raised by Carl Connick and Marilyn White concerning the fact that the City did not provide reasons for denying their request, the Commission takes the following position.

According to subsection 10.28(d) of the City's Planning Administration and Procedures Bylaw, when making a decision concerning a request to amend the provisions of the bylaws, the Development Officer ...shall...notify the applicant....of Council's decision including the reasons for approval or denial.

The City submits that Carl Connick and Marilyn White attended the public meeting and were aware of the City's reasons to deny the application. In the City's view, failure to give reasons in the notice to Carl Connick and Marilyn White is not fatal to Council's decision.

On this matter the Commission is of the opinion that the provisions of the Bylaw require the Development Officer to notify the applicants of Council's decision including the reasons for denial. As Justice David Jenkins stated in his decision regarding a judicial review of a decision by the City of Charlottetown:

"… The City of Charlottetown, through its own By-law, established a mandatory regime. Its By-law requirements are specified to be mandatory. …"1

Accordingly, the Commission finds that the Development Officer was required by law to provide reasons. However, the failure to provide such reasons has not denied the Appellant's their right to natural justice and therefore is not fatal to the City's decision to deny the application for a bylaw amendment.

In reaching this conclusion, the Commission is in no way condoning the fact that the City did not strictly comply with its own by law. The facts in this case support the City's contention that the Appellant was aware of the reasons for denial, but the same conclusion may not be reached in future cases involving a similar breach of s.10.28(d) of the City's Planning Administration and Procedures Bylaw.

The Appellant's argument fails on this ground as well.

5. Disposition

An order shall be issued denying the appeal.

IN THE MATTER of an appeal by Tiny Tot Day Care Inc. against a decision by the City of Charlottetown, dated July 14, 1997.

Order

WHEREAS the Appellant, Tiny Tot Day Care Inc. appealed the decision of the City of Charlottetown, dated July 14, 1997;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on October 22, 1997 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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 20th day of November, 1997.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Ginger Breedon, Vice-Chair

Clayton Bulpitt, 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    In the Supreme Court Trial Division, Sobeys Inc. v. City of Charlottetown, et al., NO. GSC-14342, January 17, 1996.