Order LA98-03 - LA97011 - Planning Appeal - R.E. Zenner v. City of Summerside (Mar. 9/98)

Docket LA97011

Order LA98-03

IN THE MATTER of an appeal by R.E. Zenner against a decision by the City of Summerside, dated May 20, 1997.

BEFORE THE COMMISSION

on Monday, the 9th day of March, 1998.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Background

3. Discussion

4. Findings

5. Disposition
Order

Appearances & Witnesses

1. R.E. Zenner (The Appellant)

Represented by:
R.E. Zenner

2. City of Summerside (The Respondent)

Counsel:
Krista MacKay

Witnesses:
Robert Hughes
Philip Hardy
George Arsenault

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. P-8 by R.E. Zenner (the Appellant) against a decision made by the City of Summerside (the City) on May 20, 1997.

The subject property is located in the former Town of Summerside. Under municipal amalgamation in 1995, the former Town of Summerside now forms part of the City of Summerside. The statutory authority for matters related to land use in the City are the City of Summerside Act and the Planning Act. In addition, because of the transitional provisions in the City of Summerside Act, the Town of Summerside Comprehensive Zoning By-Law continues to remain in effect until such time as the City adopts a new Bylaw and Official Plan.

2. Background

On April 22, 1997 the Appellant submitted an application to the City seeking approval within the Downtown Development Zone (D-1) to relocate an outdoor patio bar from the side of his building to the front of the building (Exhibit R2). The subject property is located at 107 Water Street, Summerside.

At a meeting dated May 6, 1997, the Technical Services Committee considered the application and made a decision to not recommend the approval for the D-1 Zone Application (Exhibit R3).

At a meeting dated May 20, 1997, City Council considered the application and voted against the D-1 Zone Application (Exhibit R4).

By letter dated May 28, 1997 the City advised the Appellant that his application to relocate an outdoor patio bar at 107 Water Street was denied (Exhibit A1).

By letter to the Island Regulatory and Appeals Commission (the Commission) dated June 10, 1997, the Appellant appealed this decision (Exhibit A2).

The Commission commenced a hearing on this matter on July 24, 1997 and at the request of the City of Summerside, adjourned this hearing to a date to be determined. Subsequent to reconvening the hearing the Commission panel had to be disbanded and a new panel was formed to hear this appeal.

A new hearing was commenced on January 28, 1998 in Summerside. During the hearing the Appellant requested an adjournment to allow him to have additional time to consult with his legal counsel pertaining to certain exhibits submitted by the City. The Commission granted this request and the hearing was reconvened and concluded on February 23, 1998.

3. Discussion

The Appellant

The Appellant's arguments may be summarized as follows:

The Appellant states that he has appealed the City's decision based on two reasons. The first reason is that the conclusion of the City was arrived at for the wrong reasons and the second is that the decision was arrived at in an improper manner.

During the hearing the Appellant argued that the application for this proposal was made in accordance with the Bylaw requirements and because there were no technical defects in the application it should have been approved. The Appellant noted that there are other licensed outdoor patios in the City and his would not be different from these.

The Appellant contends that both the decision by the Technical Services Committee and the decision by Council to deny his application were not based on any facts but only the "personal beliefs of the individual members". The Appellant submits that the proposed development complies with the bylaws and any other rules or regulations.

The Appellant argues that because six out of eight City Councillors were at the Technical Services Committee meeting on May 6, 1997 and because they voted to reject the proposal at this meeting, they prejudiced their position at the Council meeting when this matter was decided.

The Appellant states that from the time this matter was first before the Commission at the hearing held on July 24, 1997 there have been no objections to his proposal from the police, the public or the Liquor Board.

As to the evidence presented by Chief Arsenault in Exhibit (R-7.1), the Appellant contends that there was no assessment completed on this proposal and therefore the conclusions reached are based on speculation. The Appellant argues that it is wrong for Chief Arsenault to compare his proposal to Tim Hortons and the incidents that occurred in relation to the outdoor patio located at this facility. The Appellant states that his facility is licensed and young people are not permitted, unless accompanied by an adult.

The Appellant submits that for the reasons stated the appeal should be allowed and the permit issued.

The City of Summerside

The City's arguments may be summarized as follows:

The City submits that it followed the proper process in dealing with this application.

The City also submits that Council properly used its discretion pursuant to the provisions of the Bylaw to deny this application.

The City contends that based on such factors as traffic volume, pedestrian activity, closeness of proposed patio to the sidewalk and street and the fact that this property is located along the main corridor which enters the City, this proposal is not suitable for this location.

The City requests the Commission to deny the appeal and uphold the City's decision.

4. Findings

The Commission has given full consideration to the submissions made by each party in this matter and has decided to deny this appeal. The reasons for the Commission's decision are as follows:

The Commission is an administrative tribunal created pursuant to the provisions of the Island Regulatory and Appeals Commission Act R.S.P.E.I. 1988 Cap. I-11 and has only those powers granted to it by statute. On land use planning matters the Commission's jurisdiction is prescribed by section 28 of the Planning Act. In deciding appeals pursuant to the Planning Act, the Commission must make its decision within existing laws and in this case the Commission is bound by Town of Summerside Comprehensive Zoning By-Law (the Bylaw).

The subject property is located within the Downtown Development Zone (D-1). The relevant provisions of the Bylaw which pertain to this matter are contained in subsection 13.2 which states:

13.2    Permitted Uses

(a)     Council may approve those uses permissible in a Commercial, Industrial or Institutional Zone on a case by case basis. In the categories of retail sales, professional offices and government offices, a change from a use falling within one of these categories to another use falling within the same category shall not require approval of Council.

(b)    Any person proposing a development in a D-1 Zone shall submit a written application to a Development Officer consisting of the following items:

Site plan drawing to scale showing size and location of structure(s).

On and off site parking, landscaping, and walkways.

Public works such as sewer and water lines, storm sewer and fire access lanes.

Graphic representation.

Written application on how the development proposal would integrate with adjacent land uses.

(c)     Planning Board shall review the application and shall make recommendation to Council. Council shall consider the following:

the recommendation of Planning Board;

the suitability of the downtown location for the proposed use;

The suitability and integration of the uses to be made of the building(s) to be constructed.

The suitability and interrelation of the development proposal with adjacent land use and projected;

The adequacy of street access and pedestrian walkways;

The adequacy of open space, common areas and landscaping;

The efficiency of water, sanitary, and storm sewer patterns and their costs;

The provision of fire and other property protection services;

The quality of architectural design in terms of historical and aesthetic compatibility with other structures and features of the area;

On site parking and the availability of off site parking;

The preservation and use of the natural beauty of the waterfront area; and

such other matters as it considers relevant;

and may approve or deny the application.

According to the City's oral submission provided during the hearing, pursuant to subsection 13.2(a) each application submitted for development in the D-1 Zone is considered on a case by case basis.

According to the evidence submitted, the Appellant filed an application and a number of accompanying documents pursuant to subsection 13.2(b) (Exhibit R2). During the hearing Robert Hughes, the City's Director of Technical Services stated that although the application was not fully complete, it was sufficiently complete for the matter to be properly considered by the Technical Services Committee and Council.

During the hearing the City clarified that the Technical Services Committee is the City's Planning Board.

In accordance with subsection 13.2(c) of the Bylaws, the function of Planning Board is to review applications and make a recommendation to Council. According to the minutes submitted as Exhibit R3, the Technical Services Committee considered the application on May 6, 1997 and decided to not recommend approval (Exhibit R5).

The recommendation by the Technical Services Committee was then taken before Council on May 20, 1997. According to the evidence of Robert Hughes, the Commission understands that although Council did not separately consider each of the factors as stated in subsection 13.2(c), the Council members were cognizant of the bylaw requirements and their decision was made accordingly.

In reviewing the provisions contained in subsection 13.2(c) of the Bylaw, the Commission agrees with the City's submission that Council must use discretion when making decisions pertaining to development matters within the Downtown Development Zone (D-1). In cases such as this where Council is authorized to use its discretion, the Commission is reluctant to interfere with the decision of elected representatives in the exercise of their discretion and ultimately exercising their authority in deciding such matters. However, the Commission believes that such discretion must always be based on, among other things, a consideration of the relevant provisions of the Bylaws.

On an 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 this case, according to the City's evidence, this application was reviewed by the Technical Services Committee and Council and, based on the knowledge that each member has with the Bylaw and their knowledge of the property and familiarity with the area, it was determined that this proposal was not suitable and was therefore denied.

The Commission finds that the Technical Services Committee and in turn Council carried out their respective duties as required by law. Although the Appellant does not agree with this decision, the Commission finds that the Appellant has not provided any substantive evidence to support that the provisions of the Bylaw were not complied with.

With respect to the letter filed by the Director of Police Services (Exhibit R7.1) and the introduction of traffic counts (Exhibits R7.2 and R8), although these items were not specifically considered by Council when it made its decision on May 20, 1997, the Commission believes that because this appeal is by way of a hearing de novo the Commission is not limited to only the evidence the City did consider but shall also consider what the City should have considered or would have been reasonable to have considered in allowing Council to reach a decision to deny this application.

For these reasons, the Commission has considered both the oral evidence presented at the hearing and the exhibits filed by the parties.

The Commission agrees with the Council's decision on the subject application and therefore upholds the City's decision to deny this application.

As to the Appellant's allegation that Council members were prejudiced because certain members of Council are also members of the Technical Services Committee, the Commission finds that the Appellant has not provided any substantive evidence to support this allegation. The Commission also notes that municipal governments typically utilize committees of council to review and comment on matters affecting the municipality and that, in turn, the council, including those members on the committee, subsequently make final decisions.

For the reasons stated the appeal is denied.

Further to this matter, the Commission believes it is compelled to comment on two issues which have arisen during the course of this appeal.

The first matter relates to the decision rendered by Council and forwarded to the Appellant by way of a letter, dated May 28, 1997. As the Commission stated in Order LA97-02 which involved the City, on matters such as this which involve the use of discretion, the Commission believes that the City has an obligation to provide reasons for its decisions.¹ The Commission is of the opinion that without knowing the reasons or the basis for the authority's decision, the applicant is left to guess as to why the authority decided as it did. Such information may be useful for applicants when determining whether or not a decision should be appealed.

The second issue concerns the filing of evidence. In this case on June 18, 1997 the Commission requested the City to forward the file information on or before June 27, for distribution to the other parties. The Commission received this information on June 30. The hearing commenced on July 24, and at the request of the City, the hearing was adjourned until January 28, 1998. On January 27, the City submitted additional evidence prior to the hearing scheduled for January 28. During the hearing on January 28 the Appellant subsequently requested an adjournment to consider this information and the Commission granted the adjournment.

Upon examination of the material filed by the City on January 27, the Commission is of the opinion that such documentation could have and indeed should have been filed prior to this date - allowing sufficient time for the parties to consider the material. Certainly in this case the time and expense for all parties of having to reconvene the matter on February 23, 1998 could have been averted.

The Commission believes that when it requests the file information, it is incumbent upon the Respondent to submit the information in a complete and timely manner.

These issues were not prejudicial to the outcome of this appeal, however they did lead to unnecessary delays in the proceedings. Although the Commission tends to extend a fair degree of latitude in such matters, if these types of practices continue, the Commission may in the future be forced to establish more restrictive rules of conduct.

5. Disposition

Based on the reasons provided, the Commission shall issue an Order denying this appeal.

Order

WHEREAS R. E. Zenner, the Appellant has appealed a decision made by the City of Summerside on May 20, 1997;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Summerside on January 28, 1998 and in Charlottetown on February 23, 1998 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 9th day of March, 1998.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Ginger Breedon, Vice-Chair

Elizabeth MacDonald, 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    Order LA97-02, Dr. and Mrs. Vincent Adams v. City of Summerside, January 24, 1997.