Order LA97-16 - Dockets LA97008, LA97009 & LA97012- Planning Appeal - Gary Paynter v. City of Charlottetown (Dec 2, 1997)

Dockets LA97008, LA97009 & LA97012
Order LA97-16

IN THE MATTER of an appeal by Gary Paynter against certain decisions by the City of Charlottetown.

BEFORE THE COMMISSION

on Tuesday, the 2nd day of December, 1997.

Ginger Breedon, Vice-Chair
Debbie MacLellan, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Preliminary Matter

3. Decision on Preliminary Matter

4. Substantive Matters

5. Decision on Substantive Matters

6. Disposition

Order

Appearances & Witnesses

1. For The Appellant – Gary Paynter

Witnesses:
Glenn Roberts
Don Poole
Liz Murnaghan

2. For The Respondent – the City of Charlottetown

Counsel:
David Hooley

3.    For the Developer – Leaps and Bounds Child Care Center

Witness:
Sonya Corrigan

Reasons for Order

1. Introduction

The following matters pertain to appeals pursuant to the provisions of Section 28(1) of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8.

Gary Paynter (the Appellant) filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission) on May 21, 1997 (Exhibit A1). The Notice of Appeal states that this appeal is against a decision by the City of Charlottetown (the City) to "grant a rezoning request and development permit for 30 Hemlock Court from R2 Residential to C1 Commercial". The Notice of Appeal also states that these decisions were made by the City on December 9, 1996 (rezoning) and April 8, 1997 (issuance of building permit). The Commission has identified this as appeal LA97008.

Subsequent to filing appeal LA97008 the Appellant submitted two additional appeals:

On June 3, 1997 the Appellant filed an appeal against a decision by the City dated June 2, 1997 to "amend the Sherwood Development Plan and Zoning Bylaw to allow for a commercial day care centre at 30 Hemlock Court (50 children)". The Commission has identified this as appeal LA97009.

On June 17, 1997 the Appellant filed an appeal against a decision by the City dated June 16, 1997 to "spot rezone 30 Hemlock Court from R2 Residential to C1 Commercial to allow a 50 children day care centre". The Commission has identified this as appeal LA97012.

The proprietor of the day care centre located at 30 Hemlock Court, identified as the Developer in this matter, is Sonya Corrigan¹. The day care centre is called Leaps and Bounds Child Care Centre.

For administrative purposes the Commission has consolidated these appeals to be heard at one hearing.

The Commission commenced the appeal hearing in Charlottetown on September 4, and reconvened on September 5 and 8, 1997. Written closing arguments were submitted by all parties.

Upon receipt of appeal LA97008 the Commission staff notified the parties involved that the time for filing an appeal may have expired as it would appear the Notice of Appeal was filed beyond the 21 day appeal period pursuant to the provisions of Section 28 of the Planning Act and as a result the Commission may not have the jurisdiction to hear the appeal. Both the Appellant and the City filed submissions with the Commission pertaining to this issue.

Subsequent to the Notice of Appeal pertaining to appeals LA97008, LA97009 and LA97012 being filed with the Commission, the City granted a building permit to the developer on June 24, 1997 to erect a day care center (Exhibit R22). During the hearing the Appellant sought to amend his Notice of Appeal pertaining to appeals - LA97009 and LA97012 to include the City's decision to issue this permit. Consequently a similar question of jurisdiction was raised in terms of whether the appeals (LA97009 and LA97012), as they relate only to the building permit, were filed within the time period as prescribed by the Act.

During the hearing the Commission heard from all parties on the matter of jurisdiction and stated that it would reserve its decision on this preliminary matter and proceeded to hear the substantive matters of the appeals.

2. Preliminary Matter

A. The Appellant's Position

The Appellant's position on the preliminary matter may be summarized as follows:

The Appellant contends that on November 20, 1996 he submitted a letter to the City pertaining to the request for rezoning of the subject property (Exhibit A1). In the final paragraph of the letter he states: "We wish to be kept informed of the outcome of this rezoning request so that it may be appealed to IRAC". The letter was signed by Gary and Doreen Paynter and Gehrig and Linda Roach.

The Appellant states that when he delivered this letter to City Hall he discussed the matter with Don Poole, the City's Development Officer, and it was his understanding that Mr. Poole agreed to contact him when a decision was made. The Appellant submits that he did not subsequently receive any communication from the City and was not notified when the decision was made.

The Appellant argues that as he made a request to the City to be kept informed of this proposal, there was an onus on the City to comply. As he was not informed, the Appellant argues that he had no knowledge as to when the decisions were made and therefore he could not appeal these decisions within the time period as prescribed by the Act.

In addition, the Appellant submits that the Sherwood Official Plan (Exhibit R18 at page 48) states that the appeal period is "within 45 days". As the Official Plan was approved by the Minister and because this conflicts with the 21 day provision pursuant to Section 28 of the Act, the Appellant contends that the Official Plan provision of 45 days should take precedent.

The Appellant argues that the Commission should vary the appeal period as it relates to appeal LA97008, based on the circumstances as presented in this case.

The Appellant states that on the matter of amending his Notice of Appeal for appeals LA97009 and LA97012 to include the building permit issued on June 24, 1997, the City also had a responsibility to notify him when this permit was issued. The Appellant contends that as he had no knowledge of the issuance of this permit until the commencement of this hearing before the Commission, he could not have appealed this decision within the 21 day period - again the Appellant argues that the onus was on the City to notify him.

The Appellant submits that for the reasons stated the Commission does have the jurisdiction to hear these matters.

B. The City's Position

The City's position on the preliminary matter may be summarized as follows:

At the commencement of the hearing, the City stated that the initial decision to rezone the subject property (decision made on December 9, 1996) was not formally carried out in accordance with the City's Bylaw requirements and as a result the process was not perfected until Council's final reading on June 16, 1997. Subsequent to this a new building permit was issued on June 24, 1997.

On the preliminary matter of jurisdiction, the City's position is that it had no legal obligation to notify the Appellant as to when these decisions were made. During the hearing, Don Poole, the Development Officer testified that although he recalls discussing this matter with the Appellant he does not recall making a commitment to notify the Appellant when these decisions were made.

On behalf of the City, Mr. Hooley submits that because the City has a small staff working in the Planning Department it is not reasonable to expect them to notify individuals when decisions are made. Mr. Hooley contends that it is the Appellant's responsibility to be informed and that, if he had contacted the City, he would have received the information he wanted.

Despite the Appellant's allegations, the City contends that appeal LA97008 should be abandoned as the subsequent decisions to rezone the property and issue a building permit have been appealed.

On the issue of the Commission's jurisdiction, the City takes the position that the Appellant has filed his notice of appeal beyond the prescribed 21 days for both LA97008 and for the amendment to notices LA97009 and LA97012 to include the permit issued on June 24, 1997, and therefore the Commission is without jurisdiction to hear these appeals.

In his submission to the Commission dated August 5, 1997 (Exhibit R16) Mr. Hooley argues:

"IRAC, unlike a superior court, has no inherent jurisdiction, IRAC is a creature of statute possessing only the powers vested in it by statute.

…

In conclusion, there appears to be no jurisdiction to extend the time even if IRAC were so inclined."

Mr. Hooley goes on to state that if the Commission finds that it does have the jurisdiction to extend the appeal time limit, the time period requested in appeal LA97008 is substantial and therefore should not be extended.

C. The Developer's Position

The Developer's position on the preliminary matter may be summarized as follows:

The Developer submits that the Appellant's notice of appeal (LA97008) which pertains to a building permit issued on April 8, 1997 should not be heard as a new permit was issued on June 24, 1997 and the construction of the building has been completed.

The Developer also objects to the Appellant amending appeal notices LA97009 and LA97012 to include the building permit issued on June 24, 1997 and states that these matters could have been appealed by the Appellant within the 21 day period – but were not.

The Developer requests that these matters be dismissed.

3.    Decision on Preliminary Matter

On the preliminary matter of whether the Commission has the jurisdiction to hear Appeal LA97008 and the amendments to LA97009 and LA97012 as they apply to the City's decision to issue a building permit on June 24, 1997, the Commission has decided the following:

The fundamental complaint of the Appellant was that he requested to be notified but was not. We agree to an extent that the City's failure to notify him of these decisions after the Appellant's direct request for them to do so, and the failure of the City's bylaws to require any public notification of such decisions creates a significant barrier to those with opposing interests who may wish to appeal.

However, given the existing law and the fact that there is no statutory requirement to give public notice, the failure of the City to notify the Appellant or give public notice does not alter the statutory jurisdiction of the Commission. Therefore, the Commission cannot extend the period for filing a notice of appeal.

The Commission agrees in part with Mr. Hooley's submission that the Commission is a creature of statute and as we have decided in previous appeals the Commission is also bound by the law. In this case the 21 day time limitation is clearly established by the provisions of section 28(1) of the Planning Act.

As to the Appellant's argument that there was an onus on the City to notify him of these decisions, because of his direct request for them to do so, and that the City's bylaws were deficient in not requiring public notice, the Commission believes that although these are important issues these are matters outside the jurisdiction of the Commission.

The Commission's jurisdiction to hear appeals is contained in section 28(1) of the Planning Act:

Section 28.

(1) Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission.

In addition, Section 23(5) of the Interpretation Act, R.S.P.E.I. 1988, Cap. I-8 states:

Section 23.

…

(5) In the calculation of time not expressed as clear days, or other period of time not referred to in subsection (4), the first day shall be excluded and the last day included.

…

For appeal LA97008, applying the legislative provisions for the calculation of time, the period for filing a notice of appeal starts on December 10, 1996 – the day after the decision was made to rezone 20 Hemlock Court. On the decision made by the City on April 8, 1997 to issue a building permit for the subject development, the appeal period for filing a notice of appeal starts on April 9, 1997. As the appeal on these decisions was not filed until May 21, 1997, the 21 day appeal period has lapsed and the Commission is without jurisdiction to hear an appeal on these decisions.

For these reasons, the Commission has no jurisdiction and therefore cannot hear appeal LA97008.

On the amendments to appeal LA97009 and LA97012, as they relate only to the issuance of the building permit on June 24, 1997, applying the formula for the computation of time, the period for filing a notice of appeal starts on June 25, 1997. Therefore, as the Notices of Appeal were amended on September 4, 1997, the Commission finds the amendments to the appeals were filed beyond the 21 day period and the Commission is without jurisdiction to hear an appeal on these amendments.

For these reasons, the Commission has no jurisdiction and therefore cannot hear appeals LA97009 and LA97012, as they relate only to the issuance of the building permit on June 24, 1997.

4.    Substantive Matters

A. Introduction

Having decided the preliminary matters, the substantive matters which must be decided pertain to appeals LA97009 (the decision by the City on the1^st and 2^nd reading) and LA97012 (the decision by the City on the 3^rd reading) as they relate to rezoning the subject property.

B. The Appellant's Position

The position of the Appellant may be summarized as follows:

The Appellant argues that the City did not follow the provisions of the Sherwood Official Plan '85 (the Official Plan), the Community of Sherwood Zoning Bylaw (the Bylaw) and the Planning Act when it rezoned the subject property. The Appellant states that the subject property is geographically located outside the boundary delineating an area defined as the Commercial Core in the Official Plan map entitled Policy for Land Development (Exhibit R28). The Appellant argues that when the City rezoned the subject property from Residential Two-Family (R2) to Commercial Retail (C1) it was required to carry out a concurrent amendment to the Official Plan.

The Appellant also submits that the rezoning of the subject property for commercial purposes and the development of a "commercial day care centre" conflicts with the intent of the Official Plan - which would also necessitate a concurrent amendment to the Official Plan.

The Appellant contends that the City reissued the building permit on June 24, 1997 which was prior to the date when the Minister of Community Affairs and Attorney General granted approval to the rezoning on June 25, 1997 – therefore, the building permit must be null and void.

The Appellant submits that the Development Agreement made on June 24, 1997 (Exhibit R23) does not reflect the full extent of the resolution passed by City Council on December 9, 1996 (Exhibit R7). The Appellant argues that the Development Agreement does not contain the fourth condition which states: "if the property ceases to be used as a day care centre between the present time and when the Official Plan comes forth, the property reverts back to R2". The Appellant contends that as the Development Agreement does not contain this condition - the rezoning is null and void and the April 8, 1996 building permit and the re-issued building permit of June 24, 1997 is also null and void.

The Appellant submits that even if this condition was included in the Development Agreement, the Development Agreement is null and void because the City Council has not passed a bylaw giving itself authority to enter into Development Agreements affecting municipal land use, nor has the City obtained the approval of the Minister for entering into Development Agreements. The Appellant submits that to pass resolutions of Council outside of the Official Plan and Zoning Bylaw is ultra vires the Official Plan and Zoning Bylaw.

The Appellant takes the position that this is a spot rezoning because of the conditions placed upon the property by the Development Agreement, and states in his concluding remarks, dated September 21, 1997, "no other property in this commercial zone have these kinds of conditions placed on them".

The Appellant also contends that the City Planning Board was "negligent and derelict" in its duties and powers pursuant to the Planning Act because it failed to consider any adverse circumstances as outlined in "9 Sub3 Part III Municipal Planning Act Regulations[sic]".

The Appellant further submits that the rezoning of the subject property from Residential Two-Family (R2) to Commercial Retail (C1) is inconsistent with the Official Plan and planning principles and therefore the rezoning must be struck down. The Appellant argues that this "commercial development" does nothing to stabilize local property values.

The Appellant contends that the City has taken inappropriate actions to protect his interests and his neighbours interests.

In his submission to the Commission dated October 2, 1997, the Appellant states that the entire foundation of his appeal and his primary motivation stems from his concerns over the impact of this development on his home, his property values and the character and safety of his neighbourhood.

The Appellant states that he is not opposed to "neighbourhood scale" day care centres in residential areas but questions why Council would allow a day care with fifty children in this residential area when in the new Official Plan it is seeking to limit the number of children to fifteen.

The Appellant requests the Commission allow the appeal and overturn Council's decision to rezone the subject property and issue a building permit to construct the day care facility.

C. The Respondent's Position

The Respondent's position may be summarized as follows:

As to the Appellant's allegation that the building permit must be null and void because the Minister did not approve the rezoning until June 25, 1997 and the building permit was granted on June 24, 1997 the City takes the position that the Minister executed the Order on June 24, 1997 and therefore the permit is valid (Exhibit R26).

On the matter of entering into a Development Agreement, the City submits that under section 3(2) of the Charlottetown Area Municipalities Act R.S.P.E.I. 1988, CAP. C-4.1 it is a body corporate and as such the City is able to enter into contracts including Development Agreements. Section 21(o) of this Act also provides the City Council with the power to attend to "building and development services". These powers enable the City to enter into Development Agreements in order to give effect to Council's decisions. The City also submits that the City has the powers of a corporation under the Interpretation Act in order to enter into contracts.

On the issue of the fourth condition, as contained in Council's resolution, not being included in the Development Agreement, the City contends that this was an "oversight" and should not be fatal to the Council's decision and is easily remedied by adding the condition at this time. The City submits that the Development Agreement is registered on title as a restrictive covenant which protects the neighbourhood from any land use other than a day care.

The City argues that according to Glenn Roberts, the Appellant's own witness, the property is contiguous to and abuts the commercial core and a commercial zone and therefore is not spot zoning.

On the issue of whether a concurrent amendment was necessary, the City argues that based on the evidence by Don Poole a concurrent Official Plan amendment was not required. It was Mr. Poole's submission that the lines on the Official Plan map were wide and rounded and were intended to be looked at in a general as opposed to an exact indication of the commercial core. Mr. Poole also stated that based upon his review of the Official Plan he believed the Official Plan was drafted to allow for some expansion of the commercial core area. Mr. Roberts also agreed that no concurrent Official Plan amendment was required.

The City submits that if the Commission finds that a concurrent Official Plan amendment was required the City requests the Commission to confirm its decision to rezone, conditional upon the passing of an Official Plan amendment.

As to the Appellant's reference to a capacity of 15 children in a day care facility as contained in the City's draft Official Plan, the City submits that this plan is still in the draft stage and still subject to public discussions.

The City submits that the Appellant's contention that his property has devalued as a result of the day care is not correct.

The City requests that the Commission confirm the City's decision unconditionally. In the alternative, the City requests that its decision be confirmed conditionally;

upon the City obtaining an Official Plan Amendment; and/or,

adding the 4^th condition to the Development Agreement, if deemed necessary.

D. The Developer's Position

The position of the Developer may be summarized as follows:

Ms. Corrigan submits that she is providing a much needed service to the Community of Sherwood and the location of the subject property is ideal for creating the environment and setting necessary for a day care.

It is her belief that the appeal is based on the Appellant's lack of understanding and appreciation for the type of activity involved in operating a day care.

Ms. Corrigan contends that her only intention for the property is to care for the children and in doing so providing employment for 7 to 8 people and enabling up to 50 families to be happily employed because they have somewhere to send their children.

As to the issue of whether other commercial activity is contemplated, Ms. Corrigan submits that the building was constructed for a day care and is suitable only for a day care.

Ms. Corrigan requests the Commission to dismiss the appeals.

5.    Decision on Substantive Matters

A. Background

On appeals involving rezoning, the Commission usually considers two fundamental principles:

whether the municipal authority has followed the proper procedures as prescribed by statute in making a decision on a rezoning application; and

whether the proposal for rezoning has merit based on sound planning principles.

This is not to say that in any other appeal of similar nature the Commission would fetter itself by these principles and not consider other matters which may arise in a given case.

As the Commission has stated in previous decisions on rezoning matters, we are of the opinion that no individual owner of property has a statutory right to a rezoning². It is normally up to the municipal council to decide whether or not to rezone land by following a specific process which is usually prescribed by bylaw and based on sound planning principles within the context of its Official Plan. The Commission believes that decisions to rezone land are discretionary and should normally be left to the elected council, which has been entrusted by its residents to decide such matters. Therefore, 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.

Notwithstanding, however, on appeal 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.

In the case now before the Commission, the matter involves a decision by the City to rezone Provincial Property Number 530329 from Residential Two-Family (R2) to Commercial Retail (C1), subject to the City and the Developer entering into a Development Agreement.

The subject property is located in the former Community of Sherwood. Under municipal amalgamation in 1995, the former Community of Sherwood now forms part of the City of Charlottetown. The statutory authority for matters related to land use in the City are the Charlottetown Area Municipalities Act, and the Planning Act. In addition, 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 bound by its Planning Administration and Procedures Bylaw. The purpose of this Bylaw, as set out in section 2.1, is:

… to provide a single uniform administrative and procedural structure for the applicable Zoning, Building, Development and Subdivision Bylaw(s) of the former municipalities now forming the new City of Charlottetown…

On the appeal before us, and as to the issue of whether the City followed the proper procedures when it rezoned the subject property, the City submits that it followed the process as prescribed by law and therefore the appeal should be dismissed. The Developer agrees and states that she entrusted the City to follow the proper process. The Appellant contends, however, that the City did not follow proper procedures and as a result, the City's decision to rezone the property should be overturned by the Commission.

This appeal raises the following issues:

Whether the City could rezone the property subject to the City and the Developer entering into a Development Agreement;

Whether a concurrent amendment was required for the Official Plan;

Whether the decision of Council to rezone the subject property has merit based on sound planning principles; and

Whether Council acted in good faith.

B. Rezoning Subject to a Development Agreement

The evidence supports:

That the Developer made application to rezone the subject property on October 22, 1996 (Exhibit R1).

By letter dated November 7, 1996 the City notified property owners within 100 meters of a public meeting to consider this matter (Exhibit R2).

A public notice appeared in the Guardian Newspaper on November 7 and 16, 1996 (Exhibit R3).

The public meeting was held on November 21, 1996 (Exhibit R5).

On December 2, 1996 Planning Board held a meeting and recommended approval of the rezoning application to accommodate the construction of a day care establishment subject to a Development Agreement containing three conditions:

1.    No exterior signage as shown on the plan;

2.    Parking arrangement being realigned;

3.    Covenant attached to revert the C1 zoning to a more suitable zoning when the new bylaw is incorporated (Exhibit R24).

On December 9, 1996 Council passed a resolution to rezone the property subject to a Development Agreement containing four conditions:

1.    No exterior signage as shown on the plan;

2.    Parking arrangement being realigned;

3.    Covenant attached to revert the C1 Zoning to a more suitable zoning when the new By-law is incorporated;

4.    That if the property ceases to be used as a day care centre between the present time and when the Official Plan comes forth, the property reverts back to R-2 (Exhibit R7).

On June 2, 1997 the decision to rezone the subject property received 1^st and 2^nd reading by Council (Exhibit R10).

On June 16, 1997 the decision to rezone the subject property received 3^rd reading by Council (Exhibit R25).

On June 24, 1997 the City issued Building Permit number 9976 to the Developer (Exhibit R22).

On June 24, 1997 a Development Agreement was entered into between the City and Sonya Corrigan with the following conditions:

1.    The day care shall have no exterior signs as originally shown on the building plan. The size of an exterior sign shall not exceed 2 sq. ft. in size on this building.

2.    The building and the parking must be located as shown in Schedule "A".

3.    The City has the right and may rezone this lot in the new Official Plan and the Zoning Bylaws to a zone that allows day cares but not those commercial uses presently in the C1 zone (Exhibit R23).

The evidence also demonstrates that at the public meeting held by Council on November 21, 1996, and apart from the comments made by the public, several Councilors commented about rezoning the property to the Commercial Retail (C1) Zone and the potential impact related to other forms of development, which are permitted uses within this zone, being developed. For example, at page 3 of the minutes (Exhibit R5), Councillor Brown states, "…I have no problem with day cares, but the commercial zone, once you change it all the activities are allowed in that commercial zone…". Councillor McQuaid states at page 7 "… in my view, C-1 zones and a day care are not necessarily compatible. I don't know whether I want big trucks or whatnot going in and out next door. I guess the movement to make it C-1 zone is intimidating for the residents because they know what can come out of it…" . In addition, Acting Mayor MacDonald states at page 7 "… once it is rezoned whether you like it or not, they are affected by it and as Councillor McQuaid said, who would not children in a commercial zone anyhow [sic]. It doesn't make sense".

In addition, the minutes of the Planning Board meeting on December 2, 1996 state "the biggest concern rezoning to Commercial related[sic] to extended uses allowed under the C1 zone" (Exhibit R24).

Based on the statements made by several members of Council and the comments from the Planning Board minutes, it would appear to the Commission that Council found some comfort in deciding to approve the rezoning subject to a Development Agreement, which they believed would bind the Developer and the property to certain conditions and limit the use of the property for only a day care centre.

The City's attempt to rezone the property and further limit its use by way of a Development Agreement raises two fundamental questions: 1). whether the City can rezone the property subject to the City and the Developer entering into a Development Agreement which limits the uses the property can be put to within the new zone; and 2). whether the Development Agreement achieves what Planning Board and Council intended – to limit the use of the property to a day care centre.

In considering the first question, the Commission agrees with the City that the City does have the authority to enter into Development Agreements. This position was clearly stated by Justice MacDonald in the decision involving Sobeys Inc. v. The City of Charlottetown where he found "…the City being a body corporate is granted powers to enter into contracts. The Development Agreement is nothing more than a contract. …. I find that the City has authority to enter into Development Agreements."³

The Commission does not question this authority.

However, the Commission believes a distinction must be made in this case in that the Development Agreement entered into was a condition precedent to rezoning the property. The Resolution passed by Council states that: "the request to rezone … be approved subject (emphasis added) to a development agreement …". The process used by the City to rezone the property is defined as contract zoning.

According to Rogers' an authority on land use planning law:

"Contract zoning is the control of land use by agreement. The general rule is that the municipality cannot regulate land use through a Development Agreement. Without express enabling authority, a municipality cannot rezone a parcel subject to the owner entering into a collateral agreement further restricting its use."⁴

In this case, it is the Commission's opinion that the City's attempt to further restrict the use the land can be put to by way of a Development Agreement is in effect an attempt to create a new zone which allows only the proposed day care use and which does not exist in the Zoning Bylaw.

The Commission finds that the City's Zoning Bylaw does not give the enabling authority required for Council to rezone a parcel subject to the owner entering into a collateral agreement further restricting its use, therefore the City can not zone by contract. The Commission does believe, however, that if a developer voluntarily enters into an agreement it would appear to be enforceable against the developer even without statutory authority.

On the second question, the Commission believes that in its attempt to further restrict the development on this property, Council approved the request to rezone subject to the City and the Developer entering into a Development Agreement. The resolution of Council states that rezoning is approved subject to a Development Agreement containing the following four conditions:

1.    No exterior signage as shown on the plan;

2.    Parking arrangement being realigned;

3.    Covenant attached to revert the C1 Zoning to a more suitable zoning when the new By-law is incorporated;

4.    That if the property ceases to be used as a day care centre between the present time and when the Official Plan comes forth, the property reverts back to R-2 (Exhibit R7).

However, the Development Agreement entered into between the City and the Developer on June 24, 1997 contains only three conditions:

1.    The day care shall have no exterior signs as originally shown on the building plan. The size of an exterior sign shall not exceed 2 sq. ft. in size on this building.

2.    The building and the parking must be located as shown in Schedule "A".

3.    The City has the right and may rezone this lot in the new Official Plan and the Zoning Bylaws to a zone that allows day cares but not those commercial uses presently in the C1 zone (Exhibit R23).

Although it would appear from the minutes of the Council meeting held on December 9, 1996 (Exhibit R6) that the fourth condition was added as an amendment to Council's resolution, the Commission notes that for some reason, which remains unclear to the Commission, the fourth condition was not included in the Development Agreement signed June 24, 1997 (Exhibit R23). Mr. Hooley, in his submission dated September 29, 1997 states that this may be an "oversight". Mr. Hooley also submits that "If deemed necessary, this oversight should not be fatal to the Council's decision. It is easily remedied by adding the fourth condition now."

The Commission also notes that the third condition in the Development Agreement provides that the "City has the right and may (emphasis added) rezone this lot in the new Official Plan and Zoning Bylaws to a zone that allows day cares but not those commercial uses presently in the C1 zone".

Upon review of the Development Agreement, the Commission does not believe the wording in the third condition satisfies the specific direction provided by Council in its resolution approving the rezoning - that a covenant be attached to revert the C1 zoning to a more suitable zoning when the new By-law is incorporated.

Therefore, with the inclusion of the word "may" in the third condition and in the absence of the fourth condition, the Commission concludes that the Development Agreement does not alleviate the concern expressed by Planning Board and the statements expressed by members of Council.

It is the Commission's opinion that the Development Agreement does not limit the use of this property to a day care centre and as a result the potential exists that other uses which are permitted within the Commercial Retail (C1) Zone could be developed.

The Commission also concludes that contract zoning has not occurred in this case because the Development Agreement does not effectively further restrict the use the property can be put to within the Commercial Retail (C1) Zone.

As to Mr. Hooley's proposition that the fourth condition may be added if deemed necessary, the Commission is of the opinion that the restrictions placed on the land by the addition of the fourth condition, would be beyond those which are contained in the Commercial Retail (C1) Zone in the Zoning Bylaw and would be tantamount to creating a new zone within the Bylaws.

Although the addition of the fourth condition may achieve the objective of both Planning Board and Council, the Commission is of the opinion that if the property "ceases to be used as a day care centre" it cannot automatically revert back to the Residential Two-Family (R2) Zone. On the contrary, the Commission is of the opinion that to revert back to the Residential Two-Family (R2) Zone is to rezone the property – which requires adherence to the statutory requirements of the Bylaws and the Planning Act. This would include the required public notice, public meeting and consideration by both Planning Board and Council.

The Commission takes exception to the process used by the City to rezone land subject to certain conditions which purport to further restrict the use of the land and in effect create a new zone. The Commission finds that the addition of the fourth condition would lead to a situation which in effect is an attempt to circumvent the statutory requirements for rezoning – a process which would contravene the Bylaws and the Planning Act.

However, notwithstanding this, the Commission does believe, as we have stated, the City can enter into Development Agreements and, where such an agreement is voluntarily entered into by a developer, it would appear to be enforceable even without statutory authority. In addition, because of the wording of the third condition and in the absence of the fourth condition the Development Agreement in this case does not constitute contract zoning. Therefore this ground of appeal fails.

C. Official Plan Amendment

On the matter of whether the City was required to amend its Official Plan concurrently when it sought to amend its Bylaw, the Commission has considered the submissions of the parties and concludes that a concurrent amendment to the Official Plan was required.

In the Bylaws, under Part XXII – Amendments section 105 states:

Council shall determine whether or not to pursue such an amendment, and before making any decision shall examine the Official Plan to ensure that the amendment will not be contrary to any policy within the Official Plan.

In considering this matter, the Commission believes that the purpose of amending the Official Plan concurrently with an amendment to the Bylaw is to allow for an efficient process for the Planning Board and Council to consider public input. Such an amendment could result in a shift in policy or objectives and a renewed direction for a community.

In this case the issue raised by the Appellant was whether the subject property was inside or outside a line delineating the Community of Sherwood's commercial core as contained in the map entitled Policy for Land Development.

Although the Commission heard submissions from all parties as to their opinion of what was intended by this map – the Commission is unable to draw any conclusion from this other that an obvious difference of opinion exists between the Appellant and the contention of Mr. Poole and the Appellant's own witness Mr. Roberts as to whether the property was in or out of the area designated as the Commercial Core. The Commission is left to make its own interpretation as was Council when it made its decision.

In deciding whether a concurrent amendment is required in this instance, it is the Commission's opinion that one must look at not only the map referred to above but also consider the goals, objectives and specific policies within the broader context of the Official Plan.

As stated in the opening text of the Official Plan, "The Official Plan for the Community of Sherwood is a formal set of policies approved by Council concerning the nature, extent and pattern of growth and change within the municipality until 1990". The Official Plan goes on to state that:

The plan objectives are broad statements while the policies deal with specific topics and areas. The policy statements indicate the direction the community will take in dealing with growth and change.

The Official Plan will identify a Land Development Policy that will form the basis of a zoning and subdivision control bylaw.

Upon review of the Official Plan we find at Page 11 a policy pertaining to residential development which states:

The Community will designate specific land areas for residential use by means of the zoning bylaw, reducing the possibility of encroachment of non-compatible uses within residential areas.

In addition, the objective pertaining to commercial development states:

The community will ensure an adequate supply of land is available for commercial development or redevelopment and through proper allocation reduce the possibility of land use conflicts.

The policy pertaining to this matter states:

The community will continue to allocate land for commercial use to reduce the possibility of encroachment upon established residential areas.

In this case, the subject property is in an area zoned for residential use and from the policies stated above, we can only assume that Council decided to designate this area Residential Two-Family (R2) in order to reduce the possibility of encroachment of non-compatible uses within this area.

The Commission believes that the proposed use of this property - to establish a day care facility may be a compatible use in this neighbourhood considering the mix of the existing senior care facilities adjacent to the subject property. However, the Commission believes that once this property is rezoned to Commercial Retail (C1), the potential exists for other uses permitted within this zone to be developed. It is these "other" uses which Council had concerns with and which the Commission believes would result in the encroachment of non-compatible uses.

To illustrate this matter, the Commission uses the example that within the Commercial Retail (C1) Zone, a restaurant or fast food outlet is a permitted use. If these uses are permitted along with the existing senior care facilities and combined with the fact that the property is located on a local street and at the end of a cul-de-sac, then we can anticipate the potential impact that may occur. The Commission believes that the consequences of the City's decision to rezone the subject property to Commercial Retail could lead to an undesirable situation, one that could have a significant negative impact on the immediate area.

The City argued that an Official Plan amendment was not required because they believe that the property is on the line or within the area designated as the Commercial Core on the map entitled Policy for Land Development and because it is contiguous to the existing commercial core. The Commission believes this position may relate to a Plan Action contained on page 33 of the Official Plan which states:

The commercial core, commercial service and restrictive commercial areas may be expanded as the markets demand but will expand in a contiguous manner (emphasis added).

The Commission agrees that the subject property is contiguous to the Commercial core, however, it is the Commission's opinion that this Plan Action should not prevail over the policies for both residential and commercial development which seek to "reduce the possibility of encroachment of non-compatible uses" and "reduce the possibility of land use conflicts".

The Commission believes that by rezoning the subject property to Commercial Retail (C1), development of other uses permitted within the Commercial Retail (C1) Zone could result in an encroachment of a non-compatible use within the existing residential area or result in a land use conflict - a situation which conflicts with the residential and commercial policies stated above.

For these reasons the Commission is of the opinion that rezoning this property to Commercial Retail (C1) would require an amendment to the Official Plan.

As the Council did not carry out a concurrent amendment to the Official Plan, the decision to rezone the property must be quashed.

D. Sound Planning Principles

On the issue of whether the City's decision was reasonable based on sound planning principles, the City states that it considered the application and reviewed the Bylaw and the Official Plan. The City has characterized the area as being adjacent to commercial properties and sees the rezoning of this property to allow for the proposed day care centre as a reasonable expansion of the commercial core.

According to the Developer, the area is residential and this is what attracted her to this location.

The Appellant views the area as residential and contends that rezoning the subject property for commercial purposes will have a negative impact on his home, property values and the character and safety of the neighbourhood.

In determining whether the decision to rezone the subject property to Commercial Retail (C1) Zone is reasonable, based on sound planning principles, we have considered the location of the property relative to adjacent properties, the existing development patterns of the local area and the uses permitted within the Commercial Retail (C1) Zone - all within the context of the existing Official Plan and Zoning Bylaws.

The Commission finds that the subject property is located on a cul-de-sac identified as Hemlock Court. At the top end of this cul-de-sac are two senior care facilities: one owned by the P.E.I. Housing Corporation and the other identified as Corrigan Lodge. These properties are zoned Commercial Retail (C1). Other properties on Hemlock Court include a duplex and single family dwellings which are zoned Residential Two-Family (R2). The following map depicts the surrounding area and zoning designations.

Location Map

The Commission believes that the development of this day care centre would not result in any material change to the neighborhood and may not have a substantive impact on the surrounding uses. However, considering our decision that the City cannot control the future development of this property by way of the Development Agreement, the Commission believes that the potential conversion of this lot to other uses permitted within the Commercial Retail (C1) Zone could have a significant influence in changing the existing character of this area.

The potential impact and land use conflict from increased traffic, noise and other negative impacts associated with more intensive commercial developments (such as a restaurant or fast food outlet) which are permitted uses within the Commercial Retail (C1) Zone, could have a significant effect on existing land uses.

It is the potential for the development of "other" uses as permitted within the Commercial Retail (C1) Zone which the Commission finds would offend the principles of sound planning and conflict with the policies as stated in the Official Plan. For this reason the Commission quashes Council's decision to rezone the property.

E.    Whether Council Acted in Good Faith

On the issue of whether Council acted in good faith, the Appellant submits that the Planning Board was preparing a draft of the City's future Official Plan and Bylaw and therefore should have considered these matters when they rezoned the subject property. The Appellant contends that Council acted in bad faith by rezoning the subject property to Commercial under the existing Sherwood Bylaw which allows up to a maximum of fifty (50) children.

In considering this matter, the Commission is of the opinion that although the Appellant indicates he would have preferred the City to take a different approach to this matter – by possibly delaying the application until the new Official Plan and Bylaw were prepared or by rezoning the property to Public and Institutional (O1) Zone, the Commission believes that the Appellant has not provided anything more than allegations and no substantive evidence to support the allegations that Council acted in bad faith.

The Appellant fails on this ground.

F.    Conclusion

The Commission is aware that the City is currently in the process of developing a new Official Plan and Bylaw which may address many of the issues identified in this case.

As the Commission has decided in its decision on preliminary matters, the Commission is without jurisdiction to hear the appeal relative to the City's decision to issue the building permit.

Based on the foregoing, the Commission quashes the decision of the City to rezone the property from Residential Two-Family (R2) to Commercial Retail (C1).

6. Disposition

The Commission shall issue an order on this matter.

IN THE MATTER of an appeal by Gary Paynter against certain decisions by the City of Charlottetown.

Order

WHEREAS the Appellant has filed three separate appeals with the Commission, identified as LA97008, LA97009 and LA97012;

AND WHEREAS these appeals were consolidated and the Commission heard the appeal at public hearings conducted in Charlottetown on September 4, 5 and 8, 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 Commission is without jurisdiction to hear appeal LA97008;

2.    The Commission is without jurisdiction to hear appeals LA97009 and LA97012, as they relate only to the issuance of the building permit on June 24, 1997, shall be denied.

3.    Appeals LA97009 and LA97012 as they relate to the City's decision to rezone Provincial Property Number 530329, shall be allowed and the City's decision to rezone this property shall be quashed.

DATED at Charlottetown, Prince Edward Island, this 2nd day of December, 1997.

BY THE COMMISSION:

Ginger Breedon, Chair

Debbie MacLellan, 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    Although the evidence submitted by the parties refers to 30 Hemlock Court, it was clarified during the hearing that the correct address is 20 Hemlock Court.

²    Order LA97-02, In the Matter of an Appeal by Dr. & Mrs. Vincent Adams against a decision by the City of Summerside, Issued January 24, 1997.

³    Sobeys Inc. v. City of Charlottetown; [1996] P.E.I.J. No.71, Nos. GSC-15174 and GSC-15088. Judgement dated August 12, 1996.

⁴    Rogers, Canadian Law of Planning and Zoning, (Toronto: Carswell - current series 1997) p.210.65.