Order LA98-14 - LA98009 - Planning Appeal - MacKenzie & Young v. Town of Cornwall

Docket LA98009
Order LA98-14

IN THE MATTER of an appeal by Clarence MacKenzie and Dorothy Young against a decision by the Town of Cornwall, dated May 20, 1998

BEFORE THE COMMISSION

on Tuesday, the 20th day of October, 1998.

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Background

3. The Commission's Authority

4. Decision

5. Disposition

Order

Appearances & Witnesses

1. For The Appellants

Counsel:
John W. Hennessey

Witness:
Clarence MacKenzie

2. For The Respondent

Represented by:
Phil Wood

Witness:
Eldon Sentner

Reasons for Order

1. Introduction

This is an appeal pursuant section 28 of the Planning Act (the Act) R.S.P.E.I. 1988, Cap. P-8 by Clarence MacKenzie and Dorothy Young (the Appellants) against a decision made by the Town of Cornwall (the Town) dated May 20, 1998, to deny their request to rezone parcel number 703413 from Planned Unit Residential Development (PURD) to General Commercial (C1).

Pursuant to the Planning Act, the Town of Cornwall Official Plan (1997) and the Town of Cornwall Zoning and Subdivision Control Bylaw (1997) the Town of Cornwall has the authority to rezone land.

2. Background

By letter dated February 24, 1998 the Appellants requested a rezoning of property number 703413 from Planned Unit Residential Development (PURD) to General Commercial (C1)(Exhibit R1). The subject property is located in the Town of Cornwall along the Trans Canada Highway.

By letter dated May 25, 1998 the Cornwall Town Council notified the Appellants that their request for rezoning was denied (Exhibit R10).

The Appellants appealed the Town Council's decision on June 10, 1998 by filing a notice of appeal with the Island Regulatory and Appeals Commission (the Commission) (Exhibit A1).

Due to the conflicting schedules of all parties the Commission was not able to hear this appeal until September 1, 1998. The hearing was held on this date after due public notice.

At the conclusion of the hearing on September 1, 1998, the Commission requested the Town to provide a written response as to whether Council had notified the Minister of Community Affairs and Attorney General of the establishment of the planning board and whether the Minister was advised of any subsequent changes to the membership of this board. Both parties provided written submissions on this matter, with the final submission being received by the Commission on October 6, 1998.

3. The Commission's Authority

The Commission, as an appellate body has the same decision making power as the tribunal at first instance, i.e. the Town, within the Bylaws that existed at the time of an application. The Commission does not have absolute powers and is bound by the law.

On any appeal, the Commission has the power to hear the evidence and arguments as presented by both parties and decide whether to allow the appeal or dismiss it based on the evidence and arguments presented and within the applicable statutes and bylaws.

In this case, the Commission is bound by the Town of Cornwall Zoning and Subdivision Control Bylaw (1997).

Where the matter at hand involves rezoning, the Commission has previously stated its position in decisions LA97-02¹, an appeal by Dr. and Mrs. Vincent Adams against a decision by the City of Summerside and LA98-06², an appeal by Norman Hall, et. al. against a decision by the City of Charlottetown.

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.

Therefore, 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 evidence shows that the body appealed from did not follow the proper procedures or apply sound planning principles, the Commission must be prepared to substitute its decision for that of the person or body appealed from.

4. Decision

In deciding this matter, the Commission has examined the Appellants' six grounds for appeal within the context of:

Procedural Matters - whether the municipal authority has followed the proper procedures as prescribed by statute in making a decision on the rezoning application; and,

Planning Principles - whether the municipal authority applied sound planning principles in making a decision on the rezoning application.

The Commission will address each of the six identified grounds for the appeal (Exhibit A1) starting with those grounds relating to procedural matters.

4.1 PROCEDURAL MATTERS

GROUND 4 - That Council failed to exercise its discretion independently but rather ratified the decision of its planning board without further consideration and review.

The Appellants contend that Council did not make a decision independent of the decision of planning board. The Appellants argue that Town Council must make the decision and not planning board. Although the input of planning board is required, Council must reach its own conclusion.

The Town submits that Council considered the recommendation of the planning board and made the decision to deny this request for rezoning. The Town believes that they complied with the provisions of the Bylaw in arriving at this decision.

The Commission finds that the role of planning board is identified under section 22.1(iv) of the Bylaw which states that planning board is required to review each rezoning request and advise Council accordingly. Council's role is identified under section 22.1(v) of the Bylaw which states that Council retains the right to deny a rezoning request – without holding a public meeting – if such request is deemed to be inconsistent with appropriate land use planning standards or the Official Plan.

The evidence before the Commission at Exhibit R12, which contains excerpts of the minutes of planning board dated May 14, 1998, supports that planning board reviewed the request and provided a recommendation to Council. At Exhibit R12, the Council minutes from May 20, 1998, support that Council discussed this matter and voted to deny the rezoning request.

Although the Appellants do not agree with Council's decision, the Commission finds, based on the evidence, that planning board and Council carried out their duties pursuant to the provisions of the Bylaw and therefore the appeal shall not be allowed on this ground.

GROUND 5 - That planning board for the Town of Cornwall had no authority to deal with this application.

The Appellants argue that the planning board was improperly constituted because it was constituted as a "committee" of Town Council under the Charlottetown Area Municipalities Act, R.S.P.E.I. 1988, Cap. C-4.1 and not as a "planning board" under the Planning Act. Further, the Appellants contend that the Council did not comply with the provisions of section 9(6) of the Planning Act as they failed to notify the Minister of the establishment of the planning board and any changes made to its composition. As a result, the Appellants believe Town Council failed to adhere to its Bylaw, which requires planning board to review and advise on rezoning applications³, because a properly constituted board did not exist.

With respect to whether the planning board was properly constituted, the Appellants argue that at Tab 5 of Exhibit A2 there is evidence to conclude that planning board was appointed much like any other committee, under the Charlottetown Area Municipalities Act and not under the Planning Act.

The Town submits that the planning board was established under the Planning Act to prepare the Town's Official Plan and Bylaw and these were subsequently approved by the Minister. The Town further argues that by doing so, the Minister clearly endorsed the existence of the planning board. Therefore, if the planning board which reviewed this rezoning application is a continuation of the board established under the Planning Act, then its appointment was valid.

In determining whether planning board was properly constituted, the Commission has considered the arguments put forward by the parties and the relevant statutes, authoritative texts and case law.

Section 9(2) of the Planning Act sets out that Council may appoint a planning board to prepare an official plan. Section 9(3) sets out the duties and powers for a planning board, and section 9(4) details the constitution of the planning board.

Section 9.

….

(2) The council of a municipality may appoint a planning board to prepare an official plan.

(3) The planning board has the following powers and duties:

a)    to investigate and survey the physical, social and economic conditions in relation to the development of the municipality;
b)    to recommend to the council, for its adoption an interim planning policy;
c)    to prepare and recommend to council for its adoption a proposed official plan;
d)    to prepare and recommend to the council proposed alterations and additions to the official plan;
e)    to recommend to the council bylaws in respect of the official plan;
f)    to hold public meetings;
g)    when requested by the council to do so, to prepare estimates of the cost of any public work, improvement, or other project; and
h)    to perform such other duties of a planning nature as may be requested by the council.

(4) A planning board shall consist of

a) a chairman who shall be a member of the council; and
b) not less than two other members who may be members of the council.

…

Section 94(1) of the Charlottetown Area Municipalities Act states that the Mayor may appoint from among the members of the council such standing committees as he or she considers appropriate. In addition, section 94(2) states that by resolution, council may appoint special committees, chaired by a member of the council, for any particular purpose which shall report to the Council on the matters committed to them.

Section 94

(1). The mayor may appoint from among the members of the council such standing committees as he or she considers appropriate for the better transaction of the business of the council.

(2). The council may by resolution appoint special committees, chaired by a member of the council, for any particular purpose which shall report to the council on the matters committed to them.

….

In addition, section 22.1(iv) of the Bylaw sets out the requirements for planning board's role in the rezoning process.

Section 22.1(iv)
Planning board shall review each rezoning request and advise Council accordingly.

In determining whether the planning board in this matter was constituted under the Planning Act, the Commission has considered the excerpts from documents and minutes contained in Exhibit A2 at Tab 5, including the Terms of Reference for the planning board. Despite the Appellants' contention that these documents support that this body was established as a "committee" under the Charlottetown Area Municipalities Act, the Commission is of the opinion that there is no substantive evidence to determine under what statute this body was created. Clearly there is no minute, memo, or letter or any evidence provided to the Commission to support that this body was created under a specific statute.

In reviewing the statutory provisions, the Commission agrees with the Appellants' argument that there is a distinction between a "committee" constituted under section 94(1) of the Charlottetown Area Municipalities Act and a "planning board" constituted under the Planning Act.

However, when we examine the Terms of Reference for the planning board (Exhibit A2, Tab 5) we conclude that this document contains provisions which are the same or similar to those powers and duties as contained in section 9(3) and 9(4) of the Planning Act. Additionally, section 9(2) of the Planning Act gives Council full discretion to appoint a planning board. The body the Town has used in providing advice on the Appellants' rezoning request is constituted in line with the Terms of Reference for the planning board, is identified by the Town as its planning board and is being used by the Town as a planning board.

The Commission is therefore, of the opinion that there is enough evidence to support that a planning board exists and that the provisions of the Planning Act and Bylaw have been satisfied – albeit except for section 9(6) of the Planning Act.

This takes us to the next question and that is what is the effect of failing to comply with section 9(6) of the Planning Act?

While the Town concedes that it did not comply with this section, it argues that this should not render its decision in this case a nullity. They point out that when one considers the scope of this section, its purpose, its importance, together with the fact that no one's rights have been infringed and the time, expense and prejudice caused to the parties by a declaration of a nullity, one will easily conclude that the defect is trivial.

The Town further argues that notice to the Minister is not a precondition to the validity of either the appointment of the planning board or any change to the planning board. The Town contends that the purpose of section 9(6) is merely to keep the Minister informed. The impact of noncompliance has no effect on individual rights and has no impact upon the Appellants whatsoever. The Town also argues that section 9(6) does not indicate when notice must be given.

The Commission notes that section 9(6) of the Planning Act prescribes that the Minister shall be notified of the establishment of a planning board and any changes thereto. In determining the effect of non compliance with section 9(6) of the Planning Act the Commission is of the opinion that although the Interpretation Act, R.S.P.E.I. 1988 Cap. I-8 defines "shall" as imperative, there is authority which supports that such notice under section 9(6) may be either "mandatory" or merely "directory".

In this case the Commission is of the opinion that the provisions of this section are "directory" and that non compliance should not invalidate the decision made by Council. When we consider the provisions of section 9(6), with respect to the broader provisions of the Planning Act, we must conclude that the departure from serving notice on the Minister is a mere irregularity and not of significant importance to any individual's rights and, in this case, to the Appellants' rights. In addition, since no time limit is prescribed as to when the Minister is to be notified, the Town may have satisfied this provision when it notified the Minister on September 4, 1998 of the composition of the planning board.

The Commission finds that the planning board was properly constituted and has the authority to consider this rezoning application.

Therefore the appeal shall not be allowed on this ground.

GROUND 6 - That Council erred in failing to hold a public meeting, thereby, among other things, depriving the Appellants the opportunity to be heard.

The Appellants submit that because this is an important community wide issue it should have been aired at a public meeting to allow residents an opportunity to present their views.

The Town contends that pursuant to the provisions of the Bylaw, the Council has the authority to determine whether a public meeting is necessary. In this case, the Town Council saw no merit in having this matter proceed to a public meeting and therefore no meeting was held. The Town also pointed out that through the recent Official Plan process, the zoning of the parcel in question had been given wide community review and opportunity for input.

A matter of similar nature was previously canvassed before the Commission in the case Leith MacKinnon v. Cornwall (Order LA96-09). In its decision the Commission stated the following:

With respect to the procedural issue raised by the Appellant, the Commission disagrees with the Appellant's submission that pursuant to the provisions of Section 18 of the Planning Act, Council was required to hold a public meeting before deciding this matter.

The Commission finds that the requirement to hold a public meeting applies only in the circumstances where a council decides to make a bylaw or amend a bylaw. The public meeting is required to receive comments from the public if the Council wants to amend the bylaw. It seems to be clear that no public input would be required if no amendments are contemplated by the Council. In this case the decision of the Council was not to rezone the property and therefore no amendment was required.

Further to this matter, section 22.1(v) of the Bylaw states that the Council retains the right to deny a rezoning request without holding a public meeting if such request is deemed to be inconsistent with appropriate land use planning standards or the Official Plan.

The evidence presented in the case supports that the Council deemed this proposal to be inconsistent with appropriate land use planning standards and the Official Plan and therefore they saw no need for a public meeting.

The Commission finds that Council has complied with the provisions of the Bylaw and the appeal shall not be allowed on this ground.

4.2 PLANNING PRINCIPLES

GROUND 1 – That Council failed to adequately assess the desirability of the proposal.

The Appellants contend that Council failed to adequately assess the desirability of the proposal. The Appellants submit that this decision was based on one issue and one issue alone and that was whether access would be permitted from the Trans Canada Highway. The Appellants cited certain sections from the Official Plan pertaining to economic development which they argue supports the need to rezone the subject property to allow commercial development.

The Town's position is that this matter was adequately considered. The Town submits that they have recently completed the development of an Official Plan and Bylaw which involved an extensive public consultative process - of which the concerns regarding the Trans Canada Highway were a significant part. The Town contends that the decision to deny this rezoning request was based on land use considerations, of which access and associated traffic concerns were part.

The Town states that the Roads Act, R.S.P.E.I. 1988, Cap. R-15 Highway Access Regulations will not permit an appropriate access from this property to the Trans Canada Highway. As a result, if the land was rezoned and developed as commercial, the related traffic would have to be rerouted through a residential neighbourhood, which is inappropriate and offends basic planning principles.

The Commission is of the opinion that in deciding land use planning matters, municipalities must take into consideration the broader implications of their decisions. The Commission's position is well supported and one which is deeply routed in the Planning Act.

For example, section 12 of the Planning Act prescribes the content of an Official Plan which shall include among other things a statement of economic, physical, social and environmental objectives.

According to Rogers – Canadian Law of Planning and Zoning, an authoritative text on planning:

The prime objective of community planning is the evolution of the ideal environment for carrying on the various activities of living of the individuals who make up the community. There are two basic aspects of community planning. The first is concerned with the physical surroundings of the community; the organization of land use, streets, buildings, recreation areas and other public services. The second aspect pertains to social and economic aspects.

Planning seeks to achieve the physical environment that will best promote the economic, social and moral welfare of the inhabitants of the community.

In addition, the Town's Official Plan supports that the purpose of the Plan is to cover a broad spectrum of issues:

To guide the physical, social and economic development of the Town. It provides the policy framework for the Town of Cornwall Development Bylaw and policy direction for Council's actions in relation to: economic development initiatives; public works; social programs; municipal services; environmental standards; and, fiscal management.

The Commission finds that although the Appellants do not agree with the Council's decision, the evidence put forward by the Appellants on the merits of rezoning are not substantive enough for the Commission to find that the Council failed to adequately assess the desirability of the proposal.

On the contrary, the Commission believes based on the evidence and argument presented on this matter that Council, in its decision to deny the rezoning request, applied sound planning principles by considering the location of the property relative to adjacent properties, the existing development patterns of the local area, and the uses permitted within the General Commercial (C1) Zone - all within the context of the existing Official Plan and Zoning Bylaws.

The Commission believes that in this case, Council carried out its duties in compliance with the provisions of the Bylaw and therefore the appeal shall not be allowed on this ground.

GROUND 2 - That the decision of Council was based on an erroneous or premature assumption to the effect that access to the Trans Canada Highway would not be permitted.

The Appellants argue that the final determination of whether or not access is granted onto the Trans Canada Highway rests with the Minister of Transportation and Public Works under the Highway Access Regulations. The Appellants submit that there is a possibility that the Regulations could be amended by Executive Council thereby allowing access from this property onto the Trans Canada Highway. The Appellants contend that Council can not definitively state that an entrance way permit cannot be granted and that the decision on rezoning is separate and apart from the decision on access.

The Town argues that under the current Highway Access Regulations a permit would not be granted to allow access from the subject parcel onto the Trans Canada Highway. The Town contends that if such access was granted the integrity of the highway system would be compromised. The Town submits that it would be unreasonable to believe that Executive Council would amend these Regulations to allow such access, as the Trans Canada Highway is the most significant transportation corridor in the province. Also, the particular problems of safety on this Highway through Cornwall are well known and are a concern to many people.

The Commission agrees with the Appellants' contention that the granting of highway access rests with the Minister of Transportation and Public Works. However, the Commission is of the opinion that the Town reached a reasonable conclusion under the present Regulations. Certainly this decision is consistent with the opinion of Gary McLure, the regional engineer with the Department of Transportation and Public Works, that access would not be permitted (Exhibit R9).

However, even if the Minister of Transportation and Public Works granted a permit to allow access from the subject property to the Trans Canada Highway, the decision to rezone the property continues to rest with the Town. If the Minister did grant access to the Highway, the Town must still consider the full range of land use issues including traffic implications, if the subject property was rezoned for commercial purposes.

The Commission agrees with the Town that access to the Trans Canada Highway is but one, although an important one, of a number of issues that must be taken into consideration when determining whether or not this land should be rezoned. The Commission also accepts that an approval of access to the highway would not, in itself, remove the need for the Town to consider traffic implications in any rezoning request.

In considering this matter, the Commission finds that the Town was not premature or erroneous in considering the issue of access on to the Trans Canada Highway and therefore the appeal shall not be allowed on this ground.

GROUND 3 - That the decision of Council that access through the adjacent residential neighborhood would be unsafe and contrary to proper planning principles is unsupported by any objective data or criteria and is accordingly arbitrary and unreasonable.

The Appellants submit that the Town did not carry out any comparison between what type of traffic patterns may be allowed now and what might occur under some form of commercial development. The Appellants believe that the Town reached an arbitrary decision which was not supported by any study.

The Town submits that if the property was rezoned and access onto the Trans Canada Highway was not granted then access would be through the residential neighbourhood. The Town submits that this type of situation would constitute bad land use planning.

The Commission has dealt with a similar issue in the appeal by Paynter v. Charlottetown⁴. In that case the Commission found:

The Commission believes that the proposed use of this property - to establish a day care facility may be a compatible use in this neighbourhood considering the mix of the existing senior care facilities adjacent to the subject property. However, the Commission believes that once this property is rezoned to Commercial Retail (C1), the potential exists for other uses permitted within this zone to be developed. It is these "other" uses which Council had concerns with and which the Commission believes would result in the encroachment of non-compatible uses.

To illustrate this matter, the Commission uses the example that within the Commercial Retail (C1) Zone, a restaurant or fast food outlet is a permitted use. If these uses are permitted along with the existing senior care facilities and combined with the fact that the property is located on a local street and at the end of a cul-de-sac, then we can anticipate the potential impact that may occur. The Commission believes that the consequences of the City's decision to rezone the subject property to Commercial Retail could lead to an undesirable situation, one that could have a significant negative impact on the immediate area.

Over the years the Commission has embraced the fundamental principles of land use planning which strive to eliminate land use conflicts and create a safe environment.

With this in mind, the Commission has considered the scenario created by approving the rezoning of this property to General Commercial and the potential routing of the traffic through a residential area. Although the Appellants contend that the type of development proposed may not generate significant amounts of traffic, the Commission believes that once the property is rezoned to General Commercial any use which may be permitted within this zone could be developed. Clearly many commercial uses generate substantive traffic and can pose possible conflicts with neighbouring non-commercial developments. The Town has acted appropriately in considering these concerns.

Although the Appellants do not agree with the Town's decision, the Commission finds that the Appellants have not provided any substantive evidence to support that the decision of Council was arbitrary and unreasonable. In fact, the Commission believes the Town has applied sound planning principles to its consideration and decision on this rezoning request.

The Commission finds that the appeal shall not be allowed on this ground.

4.3    CONCLUSION

In conclusion, the Commission finds that the Town has complied with the statutory requirements and has made a decision based on sound planning principles. For these reasons the appeal is hereby denied.

5. Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS Clarence MacKenzie and Dorothy Young (the Appellants) have appealed a decision made by the Town of Cornwall to deny a request for rezoning parcel number 703413 from Planned Unit Residential Development to General Commercial;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on September 1, 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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 20th day of October, 1998.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner
Norman Gallant, 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     Commission Order LA97-02, Re: Dr. and Mrs. Vincent Adams v. City of Summerside, January 24, 1997, p.6.
²    Commission Order LA98-06, Re: Norman Hall, et. at. v. City of Charlottetown, March 26, 1998, p.4.
³    The Town of Cornwall Zoning and Subdivision Control (Development) Bylw (1997) - Section 22.1 (iv) and (v).
⁴    Commission Order LA97-16 Gary Paynter v. City of Charlottetown, December 2, 1997.