Order LA98-06 - LA96008, LA96009, LA96010, LA96011 & LA96012 - Planning Act - Norman Hall et. al. v. City of Charlottetown (Apr. 9/98)

Dockets LA96008, LA96009, LA96010, LA96011 and LA96012

Order LA98-06

IN THE MATTER of an appeal by Norman Hall, et al. against a decision by the City of Charlottetown dated March 26, 1996.

BEFORE THE COMMISSION

on Thursday, the 9th day of April, 1998.

Wayne D. Cheverie, Q.C., Chair
Arthur Hudson, Commissioner
Weston Rose, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Decision

4. Disposition
Order

Appearances & Witnesses

1.    For the Appellants

Counsel:
Jeffrey E. Lantz (Representing Glen A. Lea)

Witnesses:
Norman G. Hall
Dennis Williams
Kenneth L. Thompson
Les Wong
Don MacKinnon, M.L.A.

2. For the Respondent (City of Charlottetown)

Counsel:
David W. Hooley, Q.C.

Witness:
Don Poole

3. For the Developer (Enterprise P.E.I.)

Counsel:
John K. Mitchell, Q.C.

Witness:
John Jarvie

Reasons for Order

1. Introduction

The Appellants in this matter have appealed under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8.

The Appellants are:

Norman Hall - Identified as Appeal LA96008;

Kenneth L. Thompson - Identified as Appeal LA96009;

Dennis Williams - Identified as LA96010;

Glen A. Lea - Identified as LA96011; and

Troy Handren - Identified as LA96012.

It appears from the record that Norman Hall and Kenneth Thompson filed Notices of Appeal on April 12, 1996. It also appears that Dennis Williams, Glen Lea and Troy Handren filed Notices of Appeal on April 15, 1996. All of the Appellants are appealing the decision by the City of Charlottetown (the City) made on March 26, 1996 to rezone lands adjoining Upton Road from Single Family Residential (R1) to Industrial (M1) and to amend the Official Plan accordingly.

An application was filed by Enterprise P.E.I. on December 22, 1995 to rezone three parcels of land located adjacent to the West Royalty Industrial Park (Exhibit Ch2). The parcels are identified as parcels A (PID#388660), B (PID #773051), and C (PID# 778217). Only parcel B was approved by City Council for rezoning and is the subject of these appeals.

The subject property is located in the former Community of West Royalty. Since municipal amalgamation in 1995, the former Community of West Royalty now forms part of the City of Charlottetown. The statutory authorities 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 West Royalty Zoning and Subdivision Control Bylaw (#76) (Exhibit Ch39) and the West Royalty Official Plan 1994 (Exhibit Ch40) 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 (Exhibit Ch1). 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…

For administrative purposes the hearings of the appeals filed by the Appellants in this matter have been consolidated. The Commission heard the appeals on January 5, 6, 7, 8, 9, 21 and 22, 1998.

At the outset of the hearing on January 5, 1998, the Commission was advised that Mr. Troy Handren had withdrawn his appeal and that was duly noted.

At the conclusion of the hearing on January 22, 1998, all parties were requested to submit written arguments by way of summation. The Appellants' briefs, together with any representations in writing from the public at large, were to be filed by February 12, 1998, with the Respondent's briefs due to be filed by February 26, 1998. Any further reply by the Appellants in response to the Respondent's briefs was to be filed by March 5, 1998. All briefs having been filed as requested, including submissions from the public, the Commission then took the matter under advisement for decision.

2. Discussion

The Appellants

The grounds for appeal advanced by the Appellant Hall are set out in detail in his Notice of Appeal which appears on the record as Exhibit A1.1. The essence of his appeal is that the City did not follow the proper procedures when it rezoned the land in question; that the City ignored the concerns of the residents which were expressed at the public meeting of January 30, 1996; that there is a perception of bias on the part of several members of the City Council in arriving at the decision appealed from; and that with respect to all the foregoing, his property value as well as his use and enjoyment of the property will be adversely affected.

The grounds for appeal by the Appellant Thompson are set out in detail and appear as part of the record as Exhibit A2.1. He raises various concerns in his Notice of Appeal, but, in fact, his case is carried by the Appellant Hall and therefore may be dealt with in that light.

The Appellant Williams sets out his grounds of appeal in detail as attached to his Notice of Appeal which appears as part of the record as Exhibit A3.1. Among other things, the Appellant Williams also makes reference to the concerns raised by the residents at the public meeting held as part of the process leading to the rezoning in question, but he rests a great deal of his case on the discussion with respect to the role of the West Royalty Official Plan.

The Appellant Lea sets out his grounds of appeal in his Notice of Appeal which appears in the record as Exhibit A4.1. Very succinctly, he argues that members of City Council were in a conflict of interest or were biased in their deliberations in this matter; that the City failed to follow its own bylaws; and that the City failed to consider the wishes of the adjacent or nearby landowners in reaching its decision.
The City

In essence, the Respondent City argues that it followed the proper procedures in proceeding with the dual application to rezone the land in question and concurrently amend the Official Plan of the former Community of West Royalty; and further that, in so doing, it acted according to good planning principles.
The Developer

For its part, the Developer, Enterprise P.E.I., supports the position of the Respondent City. The Developer urges upon the Commission that good planning principles have been followed in this case and that the evidence supports that contention, and it further reminds the Commission that the appeal really constitutes a trial de novo and that if there are any procedural errors in this case that they have been cured on appeal. Notwithstanding that, the Developer's position clearly is that while the Commission has the power to substitute its opinion for that of Council, it should not do so in this case as the decision arrived at by the Council is a reasonable decision.

3. Decision

After careful review of all of the evidence, the submissions of all the parties, and the applicable law, and for the reasons hereinafter stated, the Commission concludes that the appeals must be allowed.

Generally speaking, appeals under the Planning Act take the form of a hearing de novo before the Commission. This was clearly stated by the Supreme Court of Prince Edward Island - Appeal Division in the reasons given by Mitchell, J.A., on the Commission's Stated Case, at page 7 of the decision where he states for the Court:

…it becomes apparent that the Legislature contemplated and intended that appeals under the Planning Act would take the form of a hearing de novo after which IRAC, if it so decided, could substitute its decision for the one appealed. The findings of the person or body appealed from are irrelevant. IRAC must hear and decide the matter anew as if it were the original decision-maker.¹

With respect to matters involving rezoning, the Commission has stated its position previously in its decision LA97-02², involving an appeal by Dr. and Mrs. Vincent Adams against a decision by the City of Summerside:

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.

So while it is clear that the Commission has the power to substitute its decision for that of the person or body appealed from, it should exercise that discretion carefully. If the decision-making body appealed from followed the proper procedures and reached its decision on the basis of sound planning principles, then even though the Commission may disagree with the decision, the Commission ought not to interfere with that decision. If, on the other hand, the body appealed from did not follow the proper procedures or apply sound planning principles to the rezoning application (or as, in this case, the concurrent application to amend the Official Plan), then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

In this case, it is clear from the evidence that the City proceeded on the application for rezoning and the amendment to the Official Plan, pursuant to section 18 of the Planning Act, and also pursuant to its own Planning Administration and Procedures Bylaw, section 10.24.

Section 18 of the Planning Act states:

18.(1) Before making any bylaw the council shall

give an opportunity to residents and other interested persons to make representations; and

at least seven clear days prior to the meeting, publish a notice in a newspaper circulating in the area indicating in general terms the nature of the proposed bylaw and the date, time and place of the council meeting at which it will be considered.

(2) Where a bylaw amendment requires an amendment to the official plan pursuant to subsection 15(2), the council may consider the official plan amendment concurrently with the bylaw and shall

indicate in general terms, in the notice published under clause (1)(b), the nature of the proposed plan amendment; and

give the planning board an opportunity to comment on the plan amendment prior to the adoption of the amendment. 1988, c.4, s.18.

Section 10.24 of the Planning Administration and Procedures Bylaw states:

10.24(a) Any application for rezoning under the applicable Z.B.D.S. Bylaw(s) presently in existence shall be made pursuant to the provisions of the applicable bylaw and shall be done by way of a new bylaw enacted under the Planning Act, the Charlottetown Area Municipalities Act and/or this Bylaw.

(b)    Every person proposing to rezone shall apply to the Development Officer and include in their application:

    (1)    a legal description and the location of the property(ies) to be rezoned;

    (2)    the name and address of the owners of the property(ies), and if the applicant is not the owner, a statement as to the applicant's interest in the property(ies); and

    (3)    sufficient funds to pay for the estimated cost of advertising and the mailouts required under the applicable Z.B.D.S. Bylaw(s). This fee shall be set from time to time as approved by a resolution of Council.

(c)    Upon receipt of a properly constituted rezoning application, the Development Officer shall request the Mayor to call a public meeting, in conformity with Section 18(1) of the Planning Act.

(d)    A copy of the rezoning application shall be:

(1) Mailed to all property owners whose property lies within or partially within one hundred (100) meters of any boundary of the lot(s) to be rezoned at least fourteen (14) calendar days prior to the date fixed for the public meeting; and

(2) posted in no less than four (4) conspicuous places within one hundred and fifty (150) meters of the boundaries of the lot(s) to be rezoned at least seven (7) calendar days prior to the date fixed for consideration of objections.

(e)    In considering a rezoning application, the Planning Board may require the applicant to provide such other information as it deems necessary and in addition to that required in the applicable Z.B.D.S. Bylaw(s).

(f)    The Planning Board shall review the matter in accordance with the provisions of the applicable Z.B.D.S. Bylaw(s) and make a recommendation to Council regarding approval or denial of the rezoning final approval. Council shall make the final decision.

(g)    When a rezoning application is refused, the staff of Planning Board shall notify the applicant of the decision, in writing, and the reason for the refusal within 14 days.

The position of the City is that in an application, such as the present one before it, section 10.24 of the Planning Administration and Procedures Bylaw sets out the process to be followed, in addition to section 18 of the Planning Act.

From a review of the evidence, it is clear to the Commission that a number of procedural requirements set out in section 10.24 were not complied with. Such things as not contacting all of the property owners whose property lies within 100 meters, not posting signs in specific areas as required, and not notifying the applicant of the decision by Council to refuse rezoning parcels A and C as required by subsection 10.24(g)—all of these errors were confirmed in the evidence of Mr. Don Poole, who is the Development Officer with the City of Charlottetown who gave evidence in this matter. The Commission notes that at the time that this application was being dealt with, Mr. Poole was very much on his own, but since that time other staff have been employed by the City of Charlottetown to assist Mr. Poole in carrying out his very onerous responsibilities.

The position of the City with respect to the foregoing defects in process is that one must look at the reason behind the rule. In effect, the City argues that all it was required to do was comply with the relevant provisions of the Planning Act, and it did that. It further argues that if there were defects in the process under the Planning Administration and Procedures Bylaws, those defects are not fatal to the final decision. The City argues that the purpose of the bylaw is to give notice to the residents, and it appears from the evidence that there was no question, that in the end, the residents in the area were well aware of the application being entertained by City Council. The Commission agrees that ultimately notice was communicated to the affected residents, but questions the fact that the City failed to adhere to its own bylaws. If the City is not going to adhere to its own bylaws, then why enact them? This whole issue was of concern to Jenkins, J., in the Supreme Court decision in the case of Sobeys Inc. v. City of Charlottetown, et. al.³ It appears to the Commission that the City cannot expect its citizens to abide by bylaws which it enacts if the City itself is not prepared to abide by those same bylaws.

Nevertheless, the notice provisions were not all adhered to and those defects were not—or could not be—perfected in the hearing before the Commission. However, in this case they are not fatal and we must further consider the process employed by the City in the disposition of this application.

Notwithstanding the foregoing, the process did unfold; a public meeting was held on January 30, 1996, as required, and a great deal of interest was shown by residents in the area. In fact, the transcript of that public meeting (Exhibit Ch13) indicates that not one resident who spoke at that meeting spoke in favour of the proposed rezoning and official plan amendment.

Also key to the decision of the City of Charlottetown was the report prepared by Mr. John Jarvie on behalf of the Developer, Enterprise P.E.I. (Exhibit Ch3). According to the evidence given by Don Poole, this document was relied on heavily by the Planning Board of the City in making its recommendation to City Council. Mr. Jarvie also gave extensive testimony with respect to this document and his involvement in this application when he appeared as a witness before the Commission.

The evidence further discloses that there was no independent analysis done of Mr. Jarvie's report. This is not to say that Mr. Jarvie is not qualified or that his report is not valid, but it seems to the Commission that in a matter as contentious as the present application, given its history before the previous Land Use Commission and the considerable discussion prior to the enactment of the West Royalty Official Plan, that there ought to have been some further, independent analysis done so that City Council could make an informed, objective decision. In fact, the Commission notes that there is quite a contrary view expressed by Mr. Philip Wood of P. Wood & Associates in his letter to the Commission dated February 9, 1998. Mr. Wood's letter was part of the public information process following the formal part of the hearing before the Commission. While the Commission is well aware of the fact that Mr. Wood did not testify personally and, therefore, was not subject to cross-examination on his position, the fact that he does have some expertise in this area and has a contrary view to the position taken by Mr. Jarvie, serves to underline the Commission's position that some independent analysis ought to have been done in this case.

Since this application involved an amendment to the bylaw to allow for rezoning of the property in question, as well as a concurrent amendment to the Official Plan, the Commission must also review how the amendment to the Official Plan itself was handled in this case.

It appears from the evidence, that Mr. Poole in his professional capacity considered the Official Plan to be an important document. In fact, this Official Plan—the West Royalty Official Plan 1994—had been developed and adopted by the former Community of West Royalty after a great deal of public consultation. An amendment to this Official Plan was not to be taken lightly and it appears from the evidence of Mr. Poole that he concurs with that statement. However, the Commission is not clear as to how much discussion actually took place at the Planning Board level and, subsequently, before City Council concerning the Official Plan itself.

It appears from the evidence of Mr. Poole that the document was available within the precincts of City Hall when Planning Board met on occasions to consider the present application, but it is not clear that the document was actually resorted to by the Planning Board. It is clear that the Planning Board relied heavily upon the assistance of Mr. Poole; that he took it upon himself to review parts of the Official Plan which he felt were relevant, and was prepared to answer questions from members of the Planning Board.

Given the fact that Mr. Poole indicated that approximately 90-95% of the recommendations of the Planning Board are accepted by City Council as a whole, the Commission believes it is incumbent on the Planning Board to properly consider all of the relevant matters pertaining to an application to rezone and amend the Official Plan, as in this case. There is no problem with City Council having such reliance on its Planning Board, which is composed both of members of Council and lay members, as long as the Planning Board thoroughly canvasses the subject matter before it and makes a proper recommendation to City Council.

In summary, the Commission is of the view that sufficient reference and study was not made of the Official Plan by the Planning Board of City Council in the present application. At the very least, each member of the Planning Board should have been presented with a copy of the Official Plan when it met to consider an amendment to that Official Plan. This is not a very heavy burden to discharge, but, given the nature and place of official plans in the overall development of the City, it is most important that the Planning Board actually consider the document.

It is not clear from the evidence that this step was taken, and, in fact, in all probability the Planning Board did not have the document before it. However, that in itself is not fatal in the present instance, since this is hearing de novo and if, in fact, sufficient evidence was led with respect to a proper consideration of the Official Plan before the Commission, then that defect could, in fact, be remedied.

There is no question that there was extensive discussion of the Official Plan in this case at the hearing before the Commission, and we shall return to the consideration of the Official Plan later when we consider the applicability of section 10.28 of the Planning Administration and Procedures Bylaw. Suffice it to say at this point in time, that the Official Plan is a significant document in the operation of a municipality according to the witness, Mr. Poole. This is further supported in the Planning Act, particularly subsection 15(2). Subsection 15(1) of the Planning Act sets out the process to be followed after the approval of an official plan by the Minister including the requirement that the Council enact bylaws to implement the official plan. And then in subsection 15(2) the following appears:

The bylaws or regulations made under clause (1)(d) shall conform with the official plan and in the event of any conflict or inconsistency, the official plan prevails.

There is certainly no question that the legislators, in enacting this section of the Planning Act, saw the official plan as an extremely important document given the fact that it clearly stated if there was any inconsistency with the bylaws, then the official plan is paramount. Given that sort of information, it becomes even more important that the official plan be properly consulted and reviewed by the decision-makers when there is an application to amend it.

With respect to the application of the Planning Administration and Procedures Bylaw, while it is the position of the City that only sections 10.24-10.26 of that bylaw apply to the present case, the Commission is not of that view. The position of the City in this regard is set out at paragraphs 2.08 and 2.09 of its post-hearing brief. It is the contention of the City that sections 10.27 and 10.28 of the Planning Administration and Procedures Bylaw are only invoked when an application to amend the official plan and bylaw requires an amendment to the text of the plan or bylaw. Since no such textual amendment was required in this case, the City argues that the latter two sections are not applicable, and that the process ends at section 10.26.

Section 10.27(a) reads as follows:

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

Both at the hearing and in its post-hearing brief, the City quite frankly admitted that it was the intention of the draftsman that the foregoing section 10.27 only applied to textual amendments. If that was the intention, the Commission is of the view that the objective was not accomplished since the wording does not restrict the application of this section as the City would urge upon the Commission.

In fact, the Applicant in this case, Enterprise P.E.I., is a person "desiring an amendment to the provisions of this bylaw and the applicable Z.B.D.S. Bylaw(s)" and therefore sections 10.27 and 10.28 are invoked. Nowhere does it say that section 10.27 is only relevant if one is seeking an amendment to the text of the bylaw.

Further to this matter the Commission is of the opinion that the zoning map is part of the bylaw. Given that the map must be amended to allow for the change from residential to industrial, the Commission is of the opinion that an amendment to the map therefore constitutes an amendment to the bylaw.

However, notwithstanding the position taken by the City thus far, at paragraph 2.019 of its post-hearing brief the City states the following:

The wording of 10.24(f) is not exactly the same as 10.28(c). However, it is submitted that compliance with 10.24(f) implicitly entails the same considerations as 10.28(c), - i.e. a consideration of 'the policies of the City and the Official Plan' to assure they are not 'contrary to any policy' of the City. That is, you cannot 'review the matter in accordance with the provisions of the applicable Z.B.D.S. Bylaw(s) and make a recommendation to Council regarding approval or denial of the rezoning' without considering the policies and provisions of the Official Plan. This is not explicit in 10.24(f) but it certainly is implicit.

The City, by the foregoing, then agrees that the applicable provisions of section 10.28 can and must be considered in disposing of an application such as the present. That being the case, what does section 10.28 have to say? In the Commission's opinion, the key part of section 10.28 is paragraph (c) which states as follows:

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

While these bylaws, for the most part, set out the process and procedures to be followed by the Planning Board and City Council in dealing with matters such as the present, there are circumstances where following the process gets one into some substantive matters. Such is the case with subsection 10.28(c). It follows that if a planning board did not carry out the mandatory requirements of the bylaw by reviewing substantive matters, then it could not have made a proper recommendation to Council upon which Council could rely. The Planning Board apparently did consider the Planning Act, but, as stated earlier, the Commission is of the view that it did not properly consider the Official Plan. Further, it was mandated to review "the policies of the City" to ensure that the proposed amendment would not be contrary to "any policy". There is no evidence before the Commission that the Planning Board carried out that mandate. For those reasons alone, the requirements of subsection 10.28(c) were not properly concluded by the Planning Board leading to a flawed recommendation to City Council resulting in a flawed final decision.

However, that was then and this is now. Again, the Commission is conducting a hearing de novo. If the evidence before the Commission satisfies the requirements of subsection 10.28(c), then we could properly conclude that the requirements have been met and that the decision should stand. There is no question in the lengthy hearing before us that the relevant provisions of the Planning Act have been reviewed, and that the Official Plan has been canvassed as well. However, there was no evidence led before the Commission to satisfy the requirement that we review the "policies of the City" to ensure that the proposed amendment will not be contrary to "any policy" of the City. Even if the City had led evidence that the policies of the City had been reviewed, and that evidence were presented to the Commission, perhaps the requirement would have been satisfied. The Commission is not sure how one goes about reviewing all of the policies of the City in order to give effect to this bylaw, but that's what the bylaw requires.

In addition to these, the Commission is of the opinion that the proposed amendment to rezone parcel B from Single Family Residential (R1) to Industrial (M1) would also necessitate a change to the text of the Official Plan which was not carried out and therefore the provisions of subsection 18(2) of the Planning Act were not complied with.

To illustrate this matter the Commission refers again to the City's submission at paragraph 2.019 of the post-hearing brief which states:

…you cannot 'review the matter in accordance with the provisions of the applicable Z.B.D.S. Bylaw(s) and make a recommendation to Council regarding approval or denial of the rezoning' without considering the policies and provisions of the Official Plan…. (Emphasis added)

We have reviewed the "provisions of the Official Plan" in some detail and find that the proposed rezoning conflicts with the Community's overall goal and certain objectives for West Royalty.

As the City submits at paragraph 2.025 of its post-hearing brief, and we agree, it is important that statements, goals, policies or actions not be taken out of context but be read as a whole. However, we do not agree with the City's submission at paragraph 2.031 of its post-hearing brief "that the rezoning of parcel 'B' comprising approximately 26 acres of land is not inconsistent, in conflict with nor contrary to any statement, goal, objective, policy, strategy or plan action of the West Royalty Official Plan".

On the contrary, the Commission is of the opinion that this proposal is inconsistent, in conflict with and is contrary to the overall goals and objectives concerning the nature, extent and pattern of land use and development for this community. For example, at section 3.1 of the Official Plan the following goal was used as a general guideline in developing the goals, objectives, policies and plan actions for the plan:

The overall goal of the Official Plan is to direct future development in a manner which will maintain and improve upon the man-made and natural qualities which make West Royalty a residential community.

In addition, the objectives of the Council at pages 6 and 7 of the Official Plan are:

- to encourage the development of safe, appealing, efficient and high quality residential neighbourhoods;

- to maintain an appropriate balance of land uses;

- to minimize land use conflicts;

- to encourage the efficient use of municipal infrastructure;

- to build upon the Community's physical, man-made and economic attributes; and

- to establish uniform development standards throughout the Community.

In its post-hearing brief, the City focused its attention on the provisions contained within the industrial section of the Official Plan, and submits that the proposal to rezone parcel B is entirely consistent within the industrial policy. The Commission, however, has reviewed other sections of the Official Plan which are equally as important and find that the proposal conflicts in many ways with these provisions.

For example, section 3.2 of the Official Plan commences with the following goal:

The goal of the Community of West Royalty is to encourage a range of residential neighbourhoods that will address the needs of people with different housing requirements and to ensure that neighbourhoods are developed and maintained in a safe, environmentally sensitive and aesthetically pleasing manner.

As in section 3.1, a number of objectives follow, some of which clearly conflict with the present proposal:

to maintain the integrity of existing neighbourhoods;

to encourage the efficient use of residential land; and

to protect residential neighbourhoods from non-compatible land uses;

From all of this, the Commission is of the opinion that despite the vision of the new City that industrial development should be expanded onto this property, the City is constrained in this decision by the provisions of the existing Community of West Royalty Bylaw (#76) and the West Royalty Official Plan which continue to have legal standing and must be adhered to by the City until the City's new official plan is approved.

Therefore, without getting into a debate on the planning principles, and whether, from a land use planning perspective this proposal makes sense, the Commission is of the opinion that the expansion of the industrial park as proposed was not a vision shared by the Community of West Royalty at the time the Official Plan and Bylaw were created. Reference need only be made to the opening paragraph of the West Royalty Official Plan to illustrate this:

The Official Plan for the Community of West Royalty is a formalized set of goals, objectives, policies and plan actions approved by the Council concerning the nature, extent and pattern of land use and development within the community until the year 2008.

For these reasons, the Commission believes that the rezoning of parcel B would necessitate an amendment to the Official Plan, including both a change to the map and significant changes to the text. As these were not carried out, the Commission finds that the City erred in process as required by statute and, therefore, the City's decision to rezone parcel B is hereby quashed.

4. Disposition

An Order will therefore be issued allowing the appeals and thereby quashing the decision of the City of Charlottetown to rezone property number 773051 from Single Family Residential (R1) to Industrial (M1) and amend the Official Plan accordingly.

Order

WHEREAS Norman Hall (LA96008), Kenneth L. Thompson (LA96009), Dennis Williams (LA96010), Glen A. Lea (LA96011), and Troy Handren (LA96012) - the Appellants, have appealed a decision by the City of Charlottetown, dated March 26, 1996 to rezone lands adjoining Upton Road from Single Family Residential (R1) to Industrial (M1) and amend the Official Plan accordingly;

AND WHEREAS these appeals were consolidated and the Commission heard the appeals at public hearings conducted in Charlottetown on January 5, 6, 7, 8, 9, 21, and 22, 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. These appeals shall be allowed and the City's decision to rezone this property from Single Family Residential (R1) to Industrial (M1) and amend the Official Plan shall be quashed.

DATED at Charlottetown, Prince Edward Island, this 9th day of April, 1998.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Arthur Hudson. Commissioner

Weston Rose, 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    Prince Edward Island Supreme Court - Appeal Division. Stated Case - Questions posed by I.R.A.C. pursuant to Subsection 14(1) of the I.R.A.C. Act. Date of judgement July 18, 1997.

² Commission Order LA97-02 Re: Dr. and Mrs. Vincent Adams v. City of Summerside, January 24, 1997, p.6.

³     Prince Edward Island Supreme Court, Trial Division. Sobeys Inc. and Sobeys Leased Properties Ltd. v. City of Charlottetown, Minister of Provincial Affairs and Attorney General and A.P.M. Landmark Inc., 31 M.P.L.R. (2D)254. Judgement - January 8, 1996.