Docket LA97029 & LA97033
Order LA98-08IN THE MATTER of appeals filed by Teresa Hennebery against certain decisions made by the Town of Stratford on June 11, 1997 and November 12, 1997.
BEFORE THE COMMISSION
on Friday, the 12th day of June, 1998.Wayne D. Cheverie, Q.C., Chair
Weston Rose, Commissioner
Debbie MacLellan, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Decision
4. Disposition
Order
Appearances & Witnesses1. For The Appellant – Teresa Hennebery
Witnesses:
Bill Noseworthy
Mary McCabe
Melanie Cox
Karen Conrad
Sabina Mallard
Paulette Soloman
Kevin Burns
Joan Conklin2. For the Respondent - the Town of Stratford
Counsel:
John K. Mitchell, Q.C.Witnesses:
Carol Lowther
Philip Wood
3. For the Developer – Sherwood Building Supplies Ltd.
Counsel:
M. Jane Ralling
Reasons for Order
1. Introduction
The Appellant, Teresa Hennebery, has filed two appeals with the Commission concerning two decisions of the Council for the Town of Stratford (the Respondent). The decisions appealed were made by the Respondent on June 11, 1997 and November 12, 1997, respectively. Appeals from these decisions have been filed with the Commission pursuant to Section 28 of the Planning Act R.S.P.E.I. 1988 Cap. P-8.
According to the notice of appeal filed by the Appellant on October 20, 1997, the Appellant appeals the decision made by the Respondent on June 11, 1997 to " extend Blue Spruce Drive by making a building lot a roadway to access 13 building lots on Somerglenn Drive" (Exhibit A1.1). In addition, the Appellant filed a further notice of Appeal on November 20, 1997, appealing the decision made by the Respondent on November 12, 1997 "to grant preliminary approval to Sherwood Building Supplies for a 42 lot sub-division on property 790212 and E.G. Enterprises Inc. Subdivision is hereby amended by changing the use of Lot #30 from single family residential use to a public roadway" (Exhibit A2.1). The Commission has designated these Appeals as LA97029 and LA97033, respectively.
The property, which is the subject of these appeals, is located in the Town of Stratford, in the former Community of Southport. Matters related to land use in the Town of Stratford are governed by the Charlottetown Area Municipalities Act R.S.P.E.I. 1988 Cap. C-4.1 and the Planning Act. In addition, because of the transitional provisions in the Charlottetown Area Municipalities Act and the Planning Act, the Town of Stratford Zoning and Subdivision Control Bylaw: Southport Area as Amended 1995 (Exhibit R3) and the Community of Southport Official Plan 1990 (Exhibit R1) were in effect at the time the subdivision application was made by Sherwood Building Supplies Ltd. on June 6, 1997 (Exhibit R6-Tab2).
For ease of process, the Commission consolidated the hearing of the above appeals filed by the Appellant. The hearing began on March 25, 1998 and continued on April 14, 15, and 16 and concluded on May 19, 1998.
The evidence at the hearing disclosed the following:
1) an application was made by Sherwood Building Supplies Ltd. (the Developer), on June 6, 1997 to the Town of Stratford for approval for a 43 lot subdivision (Exhibit R6-Tab2);
2) on June 11, 1997, the Respondent gave preliminary approval to that application (Exhibit 6-Tab 3);
3) on October 20, 1997, the Appellant filed her appeal against the June 11, 1997 decision (Exhibit A1.1);
4) on October 22, 1997, the Respondent rescinded its preliminary approval and passed a resolution to give effect to this decision (Exhibit R6-Tabs 9&10);
5) on November 12, 1997, the Respondent passed a further resolution granting preliminary approval for a 42 lot subdivision sought by the Developer with certain conditions attached and amended E.G. Enterprises Inc. Subdivision by changing the use of Lot #30 from a single family residential designation to a public roadway (Exhibit R6-Tab26); and
6) on November 20, 1997 the Appellant filed her appeal against this decision (Exhibit A2.1).
2. Discussion
A. The Appellant
The Appellant's position may be summarized as follows:
The details of the Appellant's Notice of Appeal in the first appeal are set out in Exhibit A1.1. In essence, the Appellant argues that the Respondent failed to follow the provision of its Bylaw in that it did not notify area residents that Lot #30 was about to be changed from a residential lot to a public road. This argument was fully canvassed in the second appeal filed by the Appellant, the details of which are set out in the formal document which now forms part of the record as Exhibit A2.1. The Appellant submits that despite numerous presentations made by her and a number of residents in the neighborhood in opposition to the proposed subdivision with the accompanying change of use of Lot #30, the Respondent failed to consider their position when they approved the said subdivision. Further, the Appellant contends that the decisions made by the Respondent violated certain provisions of the Planning Act, as well as certain sections of the Stratford Bylaw.
The Appellant further submits that she and her neighbors were denied access to information concerning the proposed subdivision, or, were provided with incorrect information by the Respondent. The Appellant referred to a number of situations where telephone calls were made to the Administrator for the Town of Stratford and were unanswered or in other instances where faxes and letters received no response. In addition, the Appellant submits that there was a delay by the Respondent in issuing a stop work order to the Developer when the Developer continued with construction after the original permit was revoked. The combination of all of these events created a "distrust" by the Appellant in the actions of the Respondent and its administration.
Specifically with reference to the Respondent's November 12, 1997 decision, the Appellant submits that the Respondent failed to properly consider her position, and made a decision which was based more on a concern with respect to possible liability for costs incurred by the Developer as a result of the original decision to approve the subdivision.
The Appellant also takes the position that a public road is not a permitted use within the residential zone, and therefore the change of use of Lot #30 constitutes a rezoning. That being the case, and since the Respondent did not follow the proper process for a rezoning, the Appellant submits that the Respondent has therefore violated its Bylaw.
The Developer made application for a subdivision but the Appellant contends that no application was made to change the use of Lot #30 and this in itself violated the Bylaw. Further to this, the Appellant submits that because no application was made to change the use of Lot #30, the public therefore had no knowledge of the proposed change. It is the Appellant's position that the proposed 13 lot subdivision together with the change of use of Lot #30 will have a significant impact on her and the residents in her area. In support of this, the Appellant gave evidence together with a number of other witnesses who spoke to their concerns about increased traffic and related safety for children in the neighborhood; a suggested loss of property value; and a general change in the character of the neighborhood – all cited as reasons as to why the appeal should be allowed and the subdivision application denied. In addition, because the 13 lot subdivision is presently zoned Residential Two Family (R2), the Appellant fears other forms of development such as duplexes may be built which would further detract from her neighborhood.
Based on all of the foregoing, the Appellant urges the Commission to allow her appeal.
B. The Respondent
The Respondent's position may be summarized as follows:
With respect to the first appeal, the Respondent takes the position that it made an error by not following its own Bylaw in not notifying area residents of the change in use of Lot #30, and that having been made aware of this error it took steps to rescind its decision made on June 11, 1997.
As to the second appeal, the Respondent takes the position that its decision to approve the 13 lot subdivision and change the use of Lot #30 in the process, was made in compliance with its Bylaw and was based on sound planning principles. Further, the Respondent submits that this development is in the overall best interests of all of the residents of Stratford and thereby requests that the second appeal be dismissed and the decision made by the Respondent on November 12, 1997 be endorsed.
C. The Developer
The Developer's position may be summarized as follows:
The Developer states that it is essentially a third party caught in the middle of the unfortunate controversy between the Appellant and the Respondent. It submits, through Counsel, that it has worked closely with the Respondent to plan and develop the property in question in the best manner possible, and that it has done so while at the same time attempting to satisfy the concerns of the local residents.
The Developer believes that the Respondent's Bylaw was eventually complied with, and that the decision is valid and consistent with that Bylaw, the Official Plan, and the Planning Act. In urging this submission, however, the Developer does support the position of the Respondent and seeks to have the present appeals dismissed.
3. Decision
A. Appeal Number LA97029
With respect to the first appeal filed by the Appellant (Commission Number LA97029) which notice of Appeal was dated November 20, 1997, the Commission has concluded that this appeal must be dismissed.
While it was completely proper and appropriate for the Appellant to lead evidence leading up to and surrounding the decision taken by the Respondent on June 11, 1997, the fact is that the Notice of Appeal was not filed with the Commission until the October 20, 1997. Section 28 of the Planning Act allows this Commission to hear appeals from a decision of Council, such as the Respondent, as long as the appeal is made to the Commission within 21 days of the decision being appealed. Clearly the appeal was filed well after the twenty-one day period, and therefore the Commission does not have jurisdiction to hear that appeal. Of course, the Respondent eventually became aware of the error in its process, and rescinded its decision of June 11, 1997. In any event, the Commission is without jurisdiction to hear the first appeal herein, and it is thereby dismissed.
B. Appeal Number LA97033
The second appeal, Commission LA97033, which deals with the decision of the Respondent taken on the 12th day of November, 1997, raises a number of important issues, but in the end, the appeal must be denied.
In reaching this conclusion, the Commission listened to all of the evidence presented by both of the Appellant and the Respondent, and carefully reviewed the same. In particular, we were struck by the sincerity and tenacity of the Appellant and her witnesses from the neighborhood. With the same care the Commission reviewed the submissions of all the parties then reviewed the applicable law and applied that law to the facts before us. For the reasons hereinafter stated, the Commission has come to the conclusion, that, notwithstanding the errors in the process, the Respondent responded to those errors by starting over, redoing the process, and based its decision on sound planning principles.
In reaching the foregoing conclusions, however, the Commission is of the view that there was a breakdown in communication between the Respondent's officials, and certain residents of the Community, particularly the Appellant. Information was not as forthcoming as it should have been, and the Commission believes that the Respondent should take steps to make sure such a breakdown does not occur in the future. The Appellant alleged that calls went unanswered and faxes and letters received no response. The Respondent, through its witness Ms. Carol Lowther, acknowledged this at the hearing and apologized. The fact that the Developer failed to stop work even in the wake of the decision to rescind the original approval, created a deeply held perception on the part of the Appellant that the Respondent was not taking her concerns seriously. This fact taken with the foregoing breakdown in communications, has lead the Appellant to mistrust the Respondent and it will be up to the Respondent over a period of time to rectify this problem wherever possible. The depth of this mistrust was referred to very early in the hearing before the Commission when in her opening statement, the Appellant uses the words "lies, deceit, and cover up" to describe her feelings towards the Respondent with respect to the whole of this matter. This indeed is a most unfortunate situation. Notwithstanding the Appellant's feelings in this regard, the record shows that on October 24, 1997, the Respondent's lawyer, Mr. Mitchell, wrote to the Developer's lawyer, Mr. Paul Michael, advising that the Town had rescinded preliminary approval for the subdivision (Exhibit R7). Again, on November 4, 1997 when it further became evident that work was continuing on the site, Mr. Mitchell advised the Developers representative, Mr. Gary MacLeod, in no uncertain terms that the work must "cease and desist immediately" (Exhibit R6-Tab 23). The point is that the Respondent did take steps to deal with the issue of ongoing work on the site after it had rescinded its initial approval even though these actions may not have been to the satisfaction of the Appellant. It would appear that the Developer acted at its own peril by proceeding with the work following the letter of October 24, 1997.
As stated at the outset, the Appellant raised a number of issues for the consideration of the Commission, and we must deal with them in disposing of the present appeal. The Appellant argues that a road is not a permitted use in the Residential Single Family (R1) zone (Section 22.1. of the Bylaw), and that this goes to the Lot #30 change of use issue. Section 22.1. states:
single family dwellings
homes for the aged, orphans, or other wards of the Province
religious institutions
public parks and playgrounds
public schools
community centres
accessory buildings
The Respondent answers by indicating that although a road is not defined as a permitted use, it should be considered an ancillary use which is a prerequisite for any development since no permit can be issued in any zone unless the parcel has frontage on a street. Section 10.1. states:
The Commission believes that there's merit in the Respondent's submission in this regard and accepts that position.
There can be no doubt but that the change in use of Lot #30 from a residential lot to a roadway is at the very heart of the present appeal. By changing the use of that lot to a roadway, the subdivision in which the Appellant resides now becomes joined to the Developer's proposed subdivision. There can also be no doubt but that the Respondent failed to give proper notice in the first instance when it dealt with the Developer's initial application, and it was only after this matter was raised by the Appellant and others that it revisited the Bylaw and followed the provisions of section 56.3, which states:
However, the Appellant suggests that this is more than a change in use and that in fact it amounts to a rezoning issue. That argument invokes Section 55.1. of the Bylaw which states as follows:
The Commission is of the view that this is not a rezoning issue since Lot #30 continues to be zoned as Residential Single Family (R1) notwithstanding that its use has been changed. That being the case, Section 56.2 and Section 56.3 of the Bylaw are applicable. Section 56.3 referred to above deals with the proper notice provisions and the required input from property owners within 500 feet of the boundaries of Lot #30. Section 56.2 reads as follows:
The key part of section 56.2 requires the Respondent to deny the change of use of any lot in an approved subdivision where it " deems there would be a detrimental effect on neighboring property owners". In this regard, a public meeting was held at which the Appellant and other residents clearly articulated their concerns with respect to Lot #30, and there is nothing to suggest in the record of the information presented to the Respondent at the time nor in the evidence before the Commission to indicate that the Respondent concluded that there would be a detrimental effect on the neighboring property owners. In fact, although there were suggestions made by the Appellant and her witnesses at the hearing before the Commission that certain detrimental effects would flow from the change of use of Lot #30, as we will deal with later, it does not appear to the Commission that this suggestion is well founded.
The Appellant argues that there is a difference in the number of lots applied for and the number which were actually approved, and that if the Commission were to agree then we should draw some adverse inference from that fact. This issue causes the Commission to reflect upon the evidence of Mr. Phil Wood. Mr. Wood was engaged as a Planning Consultant for the Respondent specifically with reference to the subdivision in question. It should be noted that Mr. Wood's academic as well as practical qualifications and experience were laid before the Commission and he gave extensive evidence with respect to his involvement in the matters giving rise to this appeal. His evidence was uncontradicted. With respect to the issue regarding the number of lots, he stated that it is not uncommon for the number of lots to change from that initially applied for by a Developer and that which is ultimately approved by a municipality. He suggested that the number of lots could vary in order to comply with bylaw provisions or constraints on development, which could limit the number of lots that could actually be developed. Yes it is true that 43 lots were initially applied for (Exhibit R6-Tab2), and that the survey plan is on record showing 42 lots (Exhibit R6-Tab6), but the important fact is that the issue is squarely focused on the 13 lot section of the larger subdivision. In fact, Exhibit R8.7 shows approval for "Lots 97-1 to 97-13 for single family residential use only" which is signed by Carol Lowther dated December 22, 1997. Further, Exhibit R6-Tab27 which is the resolution of the Respondent dated November 12, 1997 gives preliminary approval for a 42 lot subdivision with a number of conditions attached, one of which is that lots 1 to 13 be approved for "single family use only". Therefore, when you condense the whole of the discussion with respect to the number of lots in question, you arrive at the conclusion that the matter was clearly focused on the 13 lots which formed part of the larger subdivision, and that the Appellant's argument cannot succeed.
It should be noted that the Appellant argues that there is no provision in the Bylaws for "preliminary approval" of a subdivision. The Respondent relies on Section 59.1. of its Bylaws, which states:
The Respondent suggests that the words "tentative acceptance" are equivalent to the phrase preliminary approval. While it would be more satisfactory to have consistency in the language, the Commission is of the view that a fair interpretation of the Bylaws would support the Respondent's position and we so conclude.
The Appellant also relies on Section 5.1. of the Bylaws which reads as follows:
change the use of a parcel of land or a structure;
construct or replace any structure;
make structural alterations to any structure;
make any water or sewer connection;
make any underground installation such as a septic tank, a fuel tank, a foundation wall, or the like;
move any structure; or
subdivide any land
construct a driveway without first applying for, and receiving a permit from the Council.
In particular, the Appellant submits that the Developer did not have "a permit from the Council", and therefore was in violation of this section. The response from the Respondent was that with respect to a subdivision, the permission is actually contained in the resolution of the Council approving the subdivision. Unlike a building permit, for example, no other document is actually produced in evidence of this permission. While the Commission can identify with the production of a building permit for a house for example, and the attachment of such a notice on or near the construction, we cannot envisage how such a document would be appropriate for permission to subdivide land. That being the case, and again, as in the preceding section, while voicing our concern with respect to the consistency of the language, we are driven to conclude that Section 5.1. was complied with.
The next section of the Bylaws which is called into question and relied upon by the Appellant is Section 8.2. It reads:
S. 8.2 Council shall not issue a development permit if, in the opinion of Council:
the proposed development does not conform with this bylaw or any other bylaw, regulation, or law in force within the Community;
the method of water supply is not appropriate;
the method of waste disposal is not appropriate;
there is not a safe and efficient access to the public highway, street, or road;
the impact of the proposed development would be detrimental to the environment;
the proposed development would create unsafe traffic conditions;
the proposed development would significantly or permanently injure neighbouring properties by reason of architectural disharmony; or
the proposed development would be detrimental to the convenience, health, or safety of residents in the vicinity or the general public.
The Appellant urged the Commission to conclude that Section 8.2 does apply to the present case while the Respondent argued that it has no application, but even if it does, that the various required elements had been complied with.
The Respondent makes the case that the words "development permit' as used in Section 8.2 do not apply to a subdivision. It is the Respondent's position that permission to subdivide is contained in the resolution of Council which was passed in support of this application. However, if the Commission were to find that Section 8.2 did have application to the present case, the Respondent submits that it took the relevant factors into account in any event. After some reflection, the Commission agrees with the Respondent's position, but again the Bylaw could be clearer in this regard. Notwithstanding that, it appears from the evidence that the Respondent did consider the possible impacts that are set out in Section 8.2. On this point, the Appellant lead evidence to support the proposition that the proposed development would create unsafe traffic conditions. However, in reviewing the evidence of all of the witnesses for the Appellant, it is certainly not clear to the Commission that there would be such an increase in traffic as a result of the approval of the 13 lot subdivision such as to create "unsafe traffic conditions". In fact, Mr. Wood's evidence is that a cul-de-sac would be added to the west of Somerglenn Drive and that the access to the east would be removed. Indeed, Exhibit R8.4 which is a letter dated November 13, 1997 from Mr. Doug Beaton, Chair of the Planning and Economic Development Committee for the Respondent to Mr. Tom Harland, Deputy Minister of Transportation and Public Works for the Province of Prince Edward Island contains the request by the Respondent to have the public right of way to the adjoining Oraniuk subdivision relinquished and deeded to the Respondent. The effect of this would prevent any through traffic flow. Thus by removing the access to the east, this would also remove access to the additional lots to be developed in the Somerglenn Drive east area. It also appears from the evidence that traffic from the proposed 13 lot subdivision would offset the traffic that would have originated from the Somerglenn Drive east subdivision so that there was probably an even trade off in this respect. In any event, it would appear that the Respondent considered the traffic issue and made a planning decision for the benefit of the entire community, and not just the specific neighborhood.
A further extension of the traffic issue relates to safety, and in particular, the Appellant sought to make the case that the safety of children in the neighborhood would be jeopardized with the approval of the 13 lot subdivision. For the reasons already stated, this does not appear to the Commission to be well founded. However, what does appear to the Commission to be factual is that in addition to controlling access to the Somerglenn Drive area, the Respondent is prepared to establish a green area complete with parks. When this is complete, this should serve to increase safety for children in the area simply because no park presently exists.
Yet another alleged violation of Section 8.2 as advanced by the Appellant has to do with the concern over property value. Although the Appellant argued that the value of her home as well as the homes of several other of her neighbors would be negatively affected if the proposed development were allowed to proceed, no supporting evidence was advanced. The evidence is, as seen in Exhibit R6-Tab 15 that the Developer proposes to develop "higher end" homes in the 13 lot subdivision which may actually increase the value of properties in the Appellant's neighborhood. This evidence went uncontradicted by the Appellant, and the Commission concludes that with the addition of parks, as contemplated by the subdivision plan, together with the controlled access to the subdivision, that rather than property values being decreased in the Appellant's neighborhood, there is an equally persuasive argument that property values may actually increase.
As indicated at the out set of this decision, it was apparent throughout the hearing that the Appellant and a number of her witnesses felt that their representations were not being listened to and their concerns were not being heard by the Respondent. This is unfortunate because Mr. Wood gave extensive evidence before the Commission which he says was essentially the same presentation that he made to the residents. His evidence is that the information contained in his written report (Exhibit 6-Tab12)) is the same information that was prepared and presented before the ill fated June 11, 1997 decision taken by the Respondent. He went through the various options in dealing with the land in question and concluded that in his professional opinion, after considering all the options, that the proposed subdivision plan was the best. In fact, he was extremely proud of the proposed plan for this area and testified that indeed it adhered to good planning principles. Mr. Wood's evidence further supports the proposition that the Respondent did give consideration to broad community issues such as transportation and park development and that it's decision was based on sound planning principles.
In conclusion, the Commission must decide whether the Respondent acted properly, that is, within the law in reaching its decision. If it did so the Commission should not interfere with that decision. We are of the view that with respect to the second appeal, the Respondent did comply with the applicable provisions of its Bylaw and the Planning Act and other relevant statutes and therefore the appeal must be denied.
On a regular basis the Commission is confronted with matters charged by strong emotions, however, we are cognizant that we must decide such cases on the evidence presented. Having said that, in this case, the Commission has decided the appeals on the evidence before us. The whole question of trust or lack thereof as perceived by the Appellant and other residents is a situation which the Respondent should move to rectify. While the Appellant may not believe at this point that her concerns were heard by the Respondent, objectively it appears that in fact she has made a significant impression on the Town. One has only to look at the decision taken by the Respondent to limit the use of the proposed subdivision for single family homes; the establishing of a park system in the area; and the closure of access roads which prevent traffic from entering the subdivision from Somerglenn Drive, to support the fact that the Appellant was effective and the Respondent did listen. In this regard, it was suggested at the hearing that the Respondent intends to hold public hearings with respect to rezoning formally, the 13 lot subdivision from R2 to R1. The Commission urges the Respondent to proceed with all haste with that process for the benefit of all concerned.
4. Disposition
An Order will therefore be issued finding that the Commission has no jurisdiction to decide appeal LA97029 filed by the Appellant against the Town's decision dated June 11, 1997.
An Order will therefore be issued denying appeal LA97033 filed by the Appellant against the Town's decision dated November 12, 1997.
Order
WHEREAS Teresa Hennebery (the Appellant) has appealed certain decisions made by the Town of Stratford on June 11, 1997 and November 12, 1997;
AND WHEREAS the Commission heard the appeals at a public hearing conducted in Charlottetown on March 25, April, 14, 15, 16, and May 19, 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. On the matter of the appeal filed by the Appellant on October 20, 1997 pertaining to the Town's decision dated June 11, 1997, the Commission is without jurisdiction to hear this appeal and the appeal is hereby dismissed.
2. On the matter of the appeal filed by the Appellant on November 20, 1997, pertaining to the Town's decision dated November 12, 1997, the appeal is hereby dismissed.
DATED at Charlottetown, Prince Edward Island, this 12th day of June, 1998.
BY THE COMMISSION:
Wayne D, Cheverie, Q.C., Chair
Weston Rose, Commissioner
Debbie MacLellan, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
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:
(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.