Docket LA96024
Order LA97-02 

IN THE MATTER of an appeal by Dr. & Mrs. Vincent Adams against a decision by the City of Summerside, dated August 20, 1996.

BEFORE THE COMMISSION

on Friday, the 24th day of January, 1997.

John L. Blakney, Vice-Chair
Emmett Kelly, Commissioner
Debbie MacLellan, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Preliminary Matter

3. Decision

4. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Witnesses:
Dr. Vincent Adams
Joanne Adams

2. For the City of Summerside

Counsel:
Krista MacKay

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 Dr. & Mrs. Vincent Adams of Summerside (the Appellants) against a decision of the City of Summerside (the City) to deny an application to rezone property located at 266 Read Drive, Summerside (Provincial Parcel Number 752451) from Residential (R1) to Residential/Commercial (RC1).

In accordance with the Planning Act, the Village of Wilmot Official Plan (1980) and the Village of Wilmot Zoning and Subdivision Control By-Law (1980), the City of Summerside has the authority to approve rezoning applications and amend the Official Plan and Zoning Bylaw.

On June 3, 1996 Dr. & Mrs. Vincent Adams made application to the City of Summerside to rezone their property located at 266 Read Drive from Residential (R1) to Residential/Commercial (RC1).

In a letter to the Appellants dated August 20, 1996 the City informed the Appellants that Council denied their application for rezoning.

On August 22, 1996 Dr. and Mrs. Vincent Adams appealed the City's decision to the Island Regulatory and Appeals Commission (the Commission).

The Commission heard the appeal on Thursday, October 31, 1996 in Summerside.

2. Preliminary Matter

Ms. MacKay submits that the Appellants have not provided any grounds for this appeal and therefore the Commission is without jurisdiction to hear this matter. In response the Commission has decided the following:

The Commission is empowered to hear appeals pursuant to Sections 28 and 37 of the Planning Act. The relevant section in this case is Section 28 where subsection 28.(1) sets out the provisions for appealing a decision of Council and states … 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 this Act may, within twenty-one days of the decision appeal to the Commission.

The Commission understands that the City made a decision to deny the request for rezoning and notified the Appellants by letter, dated August 20, 1996. The Commission received a Notice of Appeal from the Appellants on August 22, 1996, which is within the 21 day appeal period.

On the issue of grounds for appeal, subsection 28.(5) of the Act sets out the requirements that a notice of appeal … shall be in writing and shall state the grounds for the appeal and the relief sought.

Ms. MacKay submits that in order for the Commission to have jurisdiction to hear this appeal, the test to be met by the Appellants in stating grounds, is to present grounds for appeal that demonstrate that the City erred in the way it arrived at the decision or the process it followed. Ms. MacKay's position is that the Appellants fail to state such grounds and therefore the Notice of Appeal is improperly filed and as a result the Commission is without jurisdiction to hear the appeal.

The Appellants argue that they believe their grounds are adequate because they did not know the reasons for the City's decision to deny their request.

In considering this issue, the Commission finds the Act is silent in providing any guidance in determining what may be considered grounds.

Therefore, to assist the Commission in determining when reasons are required and what constitutes grounds for purposes of Section 28 of the Act, the Commission has referred to a number of authorities and given consideration to both the content of the letter conveying the decision by the City to deny the application for rezoning and the subsequent notice of appeal filed by the Appellants.

It is generally understood that Council when making a decision to rezone land follows procedures that are statutorily prescribed and acts in a quasi-judicial capacity. Once an application to rezone is received, the normal procedure required by most municipal bylaws is to advertise and hold a public meeting to hear representation by the applicant and submissions from members of the public.

According to Ms. MacKay, the City held a public meeting to consider the Appellants' request for rezoning and in exercising its discretion made a decision to deny the application. Ms. MacKay contends that this decision was made pursuant to the procedures as prescribed by the Planning Act and Bylaw.

The decision of City Council was conveyed to the Appellants in a letter dated August 20, 1996 and signed by Barry Curtis, Building Officer for the City (Exhibit S13). Specifically the letter states:

Please be advised that Council denied your request to rezone property located at 266 Read Drive (PID# 752451) at the monthly Council meeting held on August 19, 1996. As per Section 28 of the Planning Act, any person who is dissatisfied by a decision of Council in respect of the administration of regulations or by-laws made pursuant to the powers conferred by this Act may, within 21 days of the decision appeal the Island Regulatory and Appeals Commission.

If you [SIC] any further questions or concerns regarding this decision, please contact the undersigned …

As a result of the City's decision to deny the rezoning application, the Appellants filed a Notice of Appeal with the Commission on August 22, 1996, stating both the grounds and the relief sought (Exhibit A1). In the Notice of Appeal the grounds are stated as follows:

We wish to have our property rezoned so we may have our Chiropractic office downstairs and rent out upstairs as an apartment. We have two small children & wish to build a house with more land for them to play on.

Ms. MacKay contends that the Appellants have only provided personal reasons as to why they disagree with Council's decision and not grounds. According to Ms. MacKay, the Appellants do not state exactly why they are appealing the City's decision.

The Commission understands the City's position is the following: because the Notice of Appeal does not state grounds, the City does not know the case it must meet and therefore the matter should be dismissed.

Upon review of the City's bylaws (specifically subsection 701(8) of the 1980 Bylaw) the Commission understands that when making a decision concerning a development permit the municipality is required to give reasons when an application is not approved or is deferred. However, no such provision is required for decisions pertaining to applications for rezoning.

Despite the absence of the requirement for stating reasons when denying an application to rezone, it is the Commission's view that giving reasons is a reasonable expectation of any municipal council functioning as a quasi-judicial body under the rules of natural justice and fairness. This opinion is based on the following:

Robert MacAulay, in Practice and Procedure Before Administrative Tribunals, states: reasons refer not only to the "why" a decision was reached but also the communication of that why to others.1

MacAulay cites from Christina Gauk in her article The Annotated Alberta Administrative Procedures Act - Section 7: The Duty to Give Reasons which makes clear the purpose for providing reasons2:

  1. Written reasons are more likely to have been properly thought out and thus make for a better decision (i.e., they reduce the likelihood of arbitrary or capricious decisions).
  2. Agencies benefit from having their decisions exposed to public scrutiny.
  3. Written reasons reinforce public confidence in administrative decisions.
  4. Written reasons allow the parties to assess whether there are grounds to appeal and to know the case to be met if there is an appeal. (emphasis added)
  5. Written reasons allow the reviewing or appellate tribunal to know the basis of the decision.

The Commission is guided by the above authorities and concludes that it is a reasonable expectation for a quasi-judicial body to give reasons for its decisions if they can be appealed to an appellate tribunal - without knowing the reasons or the basis for the authority's decision, the Appellant is left to guess as to why the authority decided what it did.

Ms. MacKay submits that if the Appellants wanted to know reasons, then they could have made an inquiry to the City. However, it is the Commission's view there is no guarantee that an inquiry would have revealed reasons. Therefore, the Commission believes that if there is to be a substantial test for stating grounds in a Notice of Appeal then it is only reasonable to think there should be an equal test placed on authorities to declare the basis for their decisions. It is not reasonable to think that a prospective appellant could state grounds if he/she does not know the reasons for the decision. The Commission is of the opinion that the intent of subsection 28.(5) requiring the appellant to provide grounds is so that a respondent can properly prepare for the case against it. To extend this we also believe it only reasonable that reasons be provided to allow the Appellant to prepare grounds for appeal.

Ms. MacKay submits that if the Commission was to proceed to hear this matter, the City would have difficulty preparing evidence when they do not know the grounds for the appeal. She stated: "I can't respond to something that hasn't been put forth". In the Commission's view, a similar argument can be made on behalf of the prospective appellant if trying to prepare grounds without knowing the reasons for the respondent's decision. We question how one could be expected to state grounds which address an error made by Council (the position put forward by Ms. MacKay) without knowing the reasons for Council's decision.

For example, where an application for a building permit is submitted the respondent can at least review the bylaws and determine whether the proposed building satisfies the bylaw requirements. The situation regarding rezoning applications is different in that the decision required by Council is one based on discretion and not whether or not it necessarily complies with specific bylaw requirements. Without providing reasons for its decision, it is difficult for anyone to file an appeal and submit grounds to support that the Council erred in the way they arrived at the decision, the process that was followed or the merits, without knowing the reasons for the Council's decision.

Section 28 of the Act, among other things, requires an appellant to file a notice of appeal within 21 days and state the grounds. In this case, the Appellants filed the notice within the appropriate time period. Although Ms. MacKay contends that the key question before the Commission is whether the Appellants' grounds are sufficient, the Commission believes the more relevant question is whether grounds are stated.

Based on the above, the Commission believes that the Appellants' failure to articulate grounds for appeal, suitable enough to meet the standards put forth by the City all stems from the fact that the City did not provide reasons for its decision. The Commission is of the opinion that if an approving authority does not give reasons for its decision it is unreasonable to expect that an appellant can put forth a complete disclosure of the grounds for the appeal. In this case, the Commission is satisfied that the Appellants have stated grounds based on what they knew about the decision.

Therefore, the motion to dismiss the appeal for the reason that no grounds were provided on the Notice of Appeal is hereby dismissed.

3. Decision

On the merits of the appeal, the Appellants submit that because they now have two small children they require additional living space for the children to play. The Appellants contend that the rezoning is needed to allow them to rent the upstairs of the house for residential purposes and continue with the chiropractic clinic downstairs. Based on their investment in the unit, including an expanded driveway and parking lot and special purpose material related to the chiropractic clinic, the Appellants believe that it would be cost prohibitive to relocate their practice to another location.

The Appellants contend that this proposal will not result in any substantial change to the use of the property and will not have a negative impact on the adjacent land uses.

The Appellants request the Commission overturn the decision of the City and rezone the property from Residential (R1) to Residential/Commercial RC1.

Ms. MacKay submits that in making its decision to deny the application, the City followed the proper procedures and complied with the bylaws. The City is not prepared to present evidence on the merits of the decision.

During the hearing, the Commission gave the City an opportunity to decide how it wanted to respond to the Appellants' submission. In fact, a hearing recess was granted to allow the City to caucus and decide whether or not it would put evidence forward. The City's legal counsel stated that representatives of the City decided not to make any further submissions.

The Commission heard from members of the public on substantive matters pertaining to this rezoning application.

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

  • 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.

With respect to rezoning applications, the Commission holds 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 which is usually prescribed by bylaw. The Commission believes that decisions to rezone land should normally be left to the elected council, which has been entrusted by its residents to decide such discretionary 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. However, on appeal the Commission believes it is required to exercise independent judgment on the merits of each application.

In previous appeals before the Commission involving rezoning applications, the Commission has considered the following:

  1. Whether Council complied with the statutory provisions of the municipal bylaws;
  2. Whether Council's decision to rezone is discriminatory;
  3. Whether Council acted in good faith;
  4. Whether Council acted in the interest of the public; and
  5. The planning principles or standards upon which Council made its decision.

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

As to the issue of whether the City followed the proper procedures, Ms. MacKay submits that Council followed the process prescribed by bylaw in denying the request to rezone. Although the Appellants disagree with the decision of City Council, they did not state that they found fault with the process or procedures in which the City decided to deny the rezoning request. Therefore, the Commission finds that there is no matter relevant to non-compliance with the provision of the bylaws or procedures in considering the application to rezone, that would cause it to allow the appeal

The Commission understands the area may be characterized as an established residential neighbourhood and the subject property fronts on Water Street East, which is a major highway entering the City. According to the zoning bylaws the area is zoned as Residential (R1).

Upon review of the Zoning Bylaw, the Commission finds that under the RC1 Zone, no building or land shall be used for purposes other than those permitted in a Residential (R4) Zone or a Commercial (C1) Zone. The Commission understands this to mean that if the property were rezoned to RC1 such uses as a multiple family dwelling, retail store, bank and financial institution or automobile service station would be permitted.

The Commission agrees that the Appellants' proposal to rent the upstairs for residential purposes and continue to use the downstairs for the chiropractic clinic would not result in any material change to the current use of the property or impact on the surrounding neighbourhood any different then it is now. However, the conversion of the lot to another permitted use under the RC1 Zone could have significant influence on changing the residential nature of the area.

Although the Appellants argue that the size of the lot would prohibit certain types of commercial use, the Commission believes that once this lot is rezoned to allow for multiple residential or commercial development, the conversion of uses to something other than residential would be started. Based on the evidence heard and the fact one is considering a spot zone in a well established residential neighbourhood, the Commission is not prepared to initiate such conversion in this area. When the varied comments of the residents are considered along with the arguments of the Appellants, the Commission believes that in this case matters should be dealt with during the official plan process - an opinion reflected in the discussion by the City's Technical Committee during their meeting of August 8, 1996 (Exhibit S10).

The Commission finds that even though the City did not put forward evidence to support its decision, the evidence put forward by the Appellants on the merits of the rezoning is not compelling enough to cause the Commission to allow the appeal.

Therefore, for the reasons stated the appeal is denied.

4. Disposition

For the reasons stated the appeal is denied.

Order

WHEREAS Dr. and Mrs. Vincent Adams, the Appellants, appealed a decision by the City of Summerside dated August 20, 1996;

AND WHEREAS the Commission heard this appeal at a public hearing conducted in Summerside on October 31, 1996 after due public notice;

AND WHEREAS the Commission has issued its findings 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 24th day of January, 1997.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Emmett Kelly, Commissioner

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 MacAulay, Robert W., Q.C. & Sprague, James L.H., Practice and Procedure Before Administrative Tribunals, Vol.2, p.22-10.38(2), 1995.

2 Ibid. Vol.2., p. 22-10.38(4).