Docket LA97021 & LA97026
Order LA98-05

IN THE MATTER of an appeal by Steve Paulowich and Marie Paulowich against decisions of the Municipal Council of North Rustico, dated July 29, 1997 and August 13, 1997.

BEFORE THE COMMISSION

on Monday, the 6th day of April, 1998.

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

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Preliminary Matters

3. Decision on Preliminary Matters

4. Disposition

Order

Appearances & Witnesses

1. For The Appellants

Witnesses:
Steve Paulowich
Marie Paulowich

2. For The Respondent

Counsel:
Jeffery Lantz

Witnesses:
Giles Gallan
Edwin Doiron

3. For The Developer

Witness:
Wayne Buote

Reasons for Order

1. Introduction

This Order and Reasons for Order pertains to preliminary matters only.

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8.

In accordance with the Planning Act, the North Rustico Official Plan 1994 and the North Rustico Zoning and Subdivision Bylaws 1994, the Community of North Rustico has the authority to approve the subdivision of land.

Steve Paulowich and Marie Paulowich (the Appellants) have appealed certain decisions of the Municipal Council of North Rustico (the Council), which were made on July 29, 1997 and August 13, 1997.

According to the Notices of Appeal filed by the Appellants, the decisions made by Council are to give final approval for the subdivision of Provincial Property Numbers 736702, 736694, 736686, 736678 and 781492 owned by Herbert Korthoff and located in Lantern Hill Subdivision at North Rustico.

For administrative purposes the Commission has identified these Notices of Appeal as LA97021 (Exhibit A1) and LA97026 (Exhibit A2).

Prior to the commencement of this hearing, the Appellants raised a preliminary matter for the Commission to determine whether or not Council made a valid decision to approve Mr. Korthoff's application at a properly constituted meeting.

The Council also raised a preliminary matter of whether the Commission has jurisdiction to hear the appeals because Council made a decision to approve Mr. Korthoff's application on June 24, 1997 and the Appellants filed Notices of Appeal beyond the 21 day appeal period. Those notices were filed on August 18, 1997 (LA97021) and September 2, 1997 (LA97026), respectively.

After due public notice, the Commission held a hearing on these preliminary matters on March 17, 1998.

Preliminary Matters

A.    The Appellants' Position

The Appellants' position on the preliminary matters may be summarized as follows:

The Appellants submit that the only matter that was approved at the regular North Rustico Community Council meeting on June 24, 1997 was the "proposed subdivision land use" and that the motion raised by Giles Gallant and passed by Council at this meeting concerning the application did not indicate what form of "approval" was being sought from Council - that is, "preliminary" or "final" approval. The Appellants also refer to the discussion by Council at this meeting on the required ten per cent recreation dedication fee and argue that since Council did not decide on this issue at the meeting and requested Mr. Gallant to find out more details, Council could not have granted final approval to the subdivision application.

The Appellants further argue that Council did not grant final approval on June 24, 1997 because on July 29, 1997 Councillor Giles Gallant circulated a letter to several residents who live near the subject properties asking if they were in favour of the proposed subdivision (Exhibits R21 and R22). The Appellants question why Giles Gallant would have solicited the opinion of residents and why Council would pass a motion at the July 29, 1997 meeting by Giles Gallant to grant this application if Council had already granted final approval on June 24, 1997. The Appellants also note that the minutes for the July 29, 1997 special meeting (Exhibit R20) indicate that Leo McCormick made a motion to grant final approval for the subdivision request, and question why this motion was not ruled out of order if the final approval had been given at the June 24, 1997 Council meeting.

The Appellants further argue that they believe approval was not given on June 24 because the application was stamped "North Rustico Development Permit Approved", dated July 29, 1997 and signed by Giles Gallant (Exhibit R16).

In addition, the Appellants raise the fact that the application was again the subject of motions dealt with by Council at a meeting held on August 13, 1997 (Exhibits A2.7). Council voted on these motions pertaining to the application. The Appellants question why Council would again pass a resolution to approve the application if Council had already granted final approval on June 24, 1997.

The Appellants also refer to the August 13, 1997 minutes of Council, where Chairman Kevin MacAdam stated that the application was "passed in principle in June 1997" (Exhibit A2.7). The Appellants believe this further supports their argument that final approval was not granted on June 24th.

In addition, the Appellants argue that the special meetings held by Council on July 29, 1997 and August 13, 1997 were not properly constituted as they were not held in accordance with the provisions of subsection 21(1) and section 56 of the Municipalities Act R.S.P.E.I. 1988, Cap. M-13 and therefore the decisions made by Council on the application at these meetings are not valid decisions.

In conclusion, while the Appellants contend that Council did not grant final approval of the application on June 24, 1997 and that the decisions made at the special meetings of July 29, 1997 and August 13, 1997 were invalid because the special meetings were not held in accordance with the provisions of the Municipalities Act, the Appellants believe that the Commission should hear their appeals for the following reasons:

  1. Council did not advise affected residents that a new application had been received from Herbert Korthoff and that Council would be deliberating and deciding on the application at a meeting on June 24,1997;

  2. The Appellants were unable to see the public documents concerning the June 24th decision until August 6, 1997 and could not have appealed the decision within the 21 day appeal period;

  3. The Appellants question the fairness of Council in declaring six months after they filed their appeals that the decision made on June 24, 1997 meant something different than what the Chairman said in the minutes of August 13, 1997; and

  4. The procedures relating to subdivision approval in the bylaws were not adhered to and it is questionable whether the bylaws permit Council to grant approval in principle and an unconditional final approval of the application in one motion.

B.    The Council's Position

The Council's position on the preliminary matters may be summarized as follows:

During the hearing Councillor Giles Gallant stated that the application for subdivision by Herbert Korthoff received final approval at a meeting of Council held on June 24, 1997 and because the Appellants filed their appeals on August 18, 1997 and September 2, 1997 respectively, they were beyond the 21 day appeal period and therefore the Commission does not have jurisdiction to hear the appeals.

Giles Gallant submits that because an application pertaining to the Korthoff subdivision had been before the Council in 1995, the particulars of the proposal were familiar to most Councillors. Mr. Gallant submits that the applicant had filed all of the necessary information pertaining to the application by June 24, 1997 and the only issue remaining to be decided by Council was the matter of recreation dedication.

Mr. Gallant contends that the motions that were passed relative to this application during the meetings held in the summer of 1997 pertained to the recreation dedication issue only.

Council argues that at the most, the only decision that may be appealable is that of the decision to waive the recreation dedication fee which was made on July 29, 1997 and August 13, 1997.

On the matter concerning whether the meetings held on July 29, 1997 and August 13, 1997, were properly constituted meetings and as a consequence, whether the decisions made by Council at these meetings were valid, Council offered no submission.

The Council submits that for all the reasons it has given the Commission does not have the jurisdiction to hear the appeals.

C.    The Developer's Position

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

While the Developer provided some background information on the application and the proposed subdivision, he did not present a position on the preliminary matters raised by the Council and the Appellants.

3. Decision on Preliminary Matters

A.    Does the Commission have jurisdiction to hear an appeal on a decision made by Council on June 24, 1997?

The Commission is a creature of statute and has only the powers conferred on it by the legislature. In this particular case, the Commission's jurisdiction is conferred upon it by subsection 28(1) of the Planning Act which clearly establishes that a person may appeal a decision of a Council in the administration of its bylaws within 21 days of the decision.

Section 28(1) of the Planning Act states:

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.

As a creature of statute the Commission has no authority to extend or alter the time period for appealing such decisions.

In this case, according to the Minutes of the Council meeting held on June 24, 1997 (Exhibit R17), Giles Gallant made a motion that, Council approve this application from Mr. Korthoff for a subdivision on Lantern Hill, to develop lots for single family houses. According to the minutes, this motion was carried by a vote of three to two.

The Appellants acknowledge that for various reasons they did not appeal this decision.

Notwithstanding these reasons, on this matter the Commission must find, that in the absence of an appeal filed pursuant to the provisions of Section 28 of the Act, the Commission is without jurisdiction to hear an appeal on the June 24th decision.

As to the arguments of whether Council's decision made on June 24th was to grant final approval - as argued by the Community, or preliminary approval - as argued by the Appellants, the Commission has determined that because it has no jurisdiction to hear an appeal on this decision, it cannot rule on this matter.

B.    Did Council make a valid decision to approve Mr. Korthoff's application at a properly constituted meeting?

On the matter raised by the Appellants as to whether or not Council made a valid decision to approve Mr. Korthoff's application at a properly constituted meeting, the Commission finds the following:

In deciding this matter the Commission has considered the second part of this issue first – were the meetings properly constituted.

The conduct of a Municipal Council and the process of holding Municipal Council meetings is set out in the Municipalities Act which states among other things, that Council shall hold regularly scheduled meetings and in the event of holding a special meeting, they must notify the public accordingly.

Specifically, section 21 states:

(1)    A Council shall hold at least one meeting each year and by resolution fix the date, place and time of regular meetings and the council may hold special meetings at the call of the mayor or chairman and the mayor or chairman shall call a special meeting when so requested in writing by not less than half of the councillors for the time being holding office.

…

(4) Meetings of a council shall be open to the public.

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Section 55 states:

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(3) The administrator shall cause notice of the time, date and place of the annual meeting to be published on at least two occasions in a newspaper circulating in the community and the first of such notices shall be published at least seven days before the date fixed for the meeting.

…

Section 56 states:

(1)The Council of a community may hold a special meeting at any time after giving notice in accordance with section 55 indicating the purpose of the meeting.

(2) No business shall be considered at a special meeting unless it is relevant to the purpose which the meeting is held.

The Commission finds that there is no other provision contained within the Municipalities Act for holding council meetings.

To illustrate the situation which occurred in this case we observe that according to the minutes of the June 24, 1997 Council Meeting, Giles Gallant "asked about having meetings in the summer months. It was decided to cancel the monthly meeting for July and August, unless something urgent arises and then we will call a special meeting".

As the June 24th meeting was public, the Commission is of the opinion that Council's decision to not have meetings in July and August was a message which was conveyed to the public that unless something urgent arises, the Community would not be holding any meetings and carrying out related business during this period.

What transpired after this meeting was that on July 29, 1997 (Exhibit R20) and on August 13, 1997 (Exhibit A2.7) Council held "special meetings" to discuss a number of agenda items, including the proposed subdivision by Mr. Korthoff.

During the hearing before the Commission the Appellants stated that these special meetings were not advertised.

The representatives for the Community did not dispute these statements.

The obvious question that arises from these events is whether the public was properly informed that community business was taking place.

We can only conclude that despite specific individuals being informed of the meetings, the general public had no knowledge of these events and therefore were denied the opportunity to attend the public proceedings.

From the Commission's review of this matter, it is apparent that there was no public notice of the purported special meetings held on July 29, 1997 and August 13, 1997. Council therefore failed to comply with the provisions of the Municipalities Act for holding special meetings. In holding these meetings, the Commission finds that Council acted without proper authority. As a result, the meetings held by Council on these dates were not properly constituted and therefore any decision made by Council at these meetings would have no force and effect.

As the decisions made at these meetings must be struck down there can be no appeal to the Commission on those decisions. The Commission is, therefore, without jurisdiction to determine the second part of the Appellant's preliminary matter - whether Council made a valid decision at these meetings.

The Commission is without jurisdiction to proceed to hear the substantive matters related to appeals – LA97021 and LA97026.

C.    Comments on other matters.

The issues raised by the parties during the hearing on the preliminary matters have caused the Commission substantial concern. Although we have found that we are without jurisdiction to proceed and hear the substantive matters related to these appeals, the Commission would be remiss if it did not comment further on these issues.

We heard from Councillor Giles Gallant during the hearing that he believes that during a meeting on June 24, 1997 he raised a motion to grant final approval to the Korthoff subdivision. However, we find it very confusing that the Chairman of Council, Kevin MacAdam, reported subsequently at a meeting on August 13, 1997 (Exhibit A2.7) that a motion for approval of this subdivision had been passed in principle in June.

According to the Community's Bylaws final approval and approval in principle have very different and distinct meanings. Upon review of the Community's bylaws, specifically sections 16 through 25, the Commission is of the opinion that receiving approval in principle is a precondition to receiving final approval. From the exhibits submitted by the Community, we can find no record of preliminary approval being granted.

Further to this particular point, although Giles Gallant stated during the hearing that he believes the matter was dealt with at the June 24, 1997 meeting and that final approval was given, and all that was left to decide was whether the 10% dedication of land for recreation was required or whether a cash payment equivalent to 10% of the value of the unsubdivided land was required, the minutes from subsequent meetings suggest something quite different.

We find that the issue of the approval of the subdivision was raised and voted upon, on no less than two additional occasions.

According to the minutes of the meeting on July 29, 1997:

Leo McCormich made a motion to grant final approval for the Herb Korthoff subdivision application upon receipt of the remaining balance owing the community for the Recreation Dedication… Motion defeated 2-3. (sic)

Motion by Giles Gallant to grant the application for the Korthoff subdivision. Due to taxes already paid ($2460.00) waive the required recreation dedication of 10% ($5000). Motion passed 3-2.

At the meeting on August 13, 1997 the issue was raised and voted on again:

Leo McCormick moved that we grant final approval to Mr. Korthoff, upon receipt of the final payment of the ten percent of the value of the land now which is $60,000.

Although the minutes did not record the vote, they indicate the motion did not pass.

The minutes go on to indicate that:

Leo McCormick withdrew his first motion and moved that we give final approval to Mr. Korthoff after he has paid the ten percent of the value of the property today which is $60,000.

In this case although the motion was seconded by Pius Gauthier and the vote is recorded as being 3-2, the minutes state the motion was defeated and that Pius Gauthier and Leo McCormick opposed this motion.

Further, the Commission finds it peculiar that Mr. McCormick would make a motion and Mr. Gauthier would second it and then both turn around and oppose the motion. We believe that this must be a mistake in the recording of the minutes.

According to the Minutes of the September 30, 1997 meeting (Exhibit R31) there was an omission in the minutes of August 13. The minutes were amended to state that there was a motion by Giles Gallant to grant the approval of the application for the Korthoff Subdivision and due to taxes already paid ($2460.00) waive the ten percent dedication which would be $5000. This motion carried 3-2.

The actions by Council to continue to entertain motions on this matter, where usually the same or similar wording was used, is confusing to the Commission.

In considering all of these minutes and the various motions made, we have difficulty in understanding the position of Giles Gallant - that the issue was given final approval at the June 24, 1997 meeting. It would appear that, in the minds of the Chair and Councillors Gauthier and McCormick, the issue was not yet decided. From the Commission's perspective, this begs the question that if final approval was decided at the meeting on June 24th, then why did Council continue to debate the matter and pass motions? Should these motions have been declared out of order, as suggested by the Appellants?

Of course the broader question which remains is whether final approval could be given if the issue of the recreation dedication remains outstanding.

Our review of the Bylaws suggests that before final approval is given certain conditions must be met – of which one of these is the issue of the recreation dedication. Section 20 Part 22 (c) of the Bylaws focuses on this issue:

s.22 Final approval of a subdivision shall not be given by Council until (Emphasis added):

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(c) all transactions involving the transfer of money or land in conjunction with the subdivision have been secured to the satisfaction of Council;

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These comments are offered by way of constructive criticism and in support of the proper administration of the law. This is imperative for good governance and the rights of both the Community as a whole and the individuals within the Community.

Municipal Bylaws, as with any law, are meant to be adhered to and enforced for the general benefit of all of society. At the municipal level, Council is entrusted to enforce the bylaws of a community and therefore must adhere to the legal requirements which exist. Although at times or in certain situations one may not agree with the law, Council has no authority to deviate in the administration of the law or the law itself. Jenkins, J. appropriately summed this up in a decision on judicial review of a decision by the City of Charlottetown when he stated: "How can the citizens have any assurance of protection before the law if the law is only to be complied with when it is convenient for those in authority to comply with the law?"1

4. Disposition

After considering all of the evidence, the Commission finds that it is without jurisdiction to hear these appeals.

In the absence of the Commission having jurisdiction to hear an appeal, parties not satisfied with decisions made by municipal corporations may seek other remedies including a judicial review by the courts.

Order

WHEREAS Steve Paulowich and Marie Paulowich appealed decisions of the Municipal Council of North Rustico dated July 29, 1997 and August 13, 1997;

AND WHEREAS the Commission heard preliminary matters only at a public hearing conducted in Charlottetown on March 17, 1998 after due public notice;

AND WHEREAS the Commission has issued its findings on these preliminary matters 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 has no jurisdiction to hear these appeals.

DATED at Charlottetown, Prince Edward Island, this 6th day of April, 1998.

BY THE COMMISSION:

Wayne 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    Sobeys Inc. v. Charlottetown, Jenkins, J., Prince Edward Island Supreme Court, Judgement dated January 8, 1996.