Order LA99-12 - LA99021 - Planning Appeal - Reasons - Alan Roper v. City of Charlottetown (Dec. 3/99)

Docket LA99021
Order LA99-12

IN THE MATTER of an appeal by Alan Roper against a decision of the City of Charlottetown, dated August 6, 1999.

BEFORE THE COMMISSION

on Friday, the 3rd day of December, 1999.

Wayne D. Cheverie, Q.C., Chair
Weston Rose, Commissioner
Elizabeth MacDonald, Commissioner

Reasons for Order

Contents

Appearances

Reasons for Order

1.    Introduction

2.    Reasons

Appearances

1.    For The Appellant

Alan Roper

2.    For The Respondent (City of Charlottetown)

Counsel:
David W. Hooley, Q.C.

1. Introduction

The Commission has appellate jurisdiction under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8. which states:
28.(1) Subject to subsection (1.1) and (2), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act, may, within twenty-one days, appeal to the Commission.

According to the exhibits filed in this matter, Alan Roper (the Appellant) made application for a building permit on July 2, 1999 to erect a single family home on property number 720177 located on the Heartz Road in the former Community of East Royalty which is now part of the amalgamated City of Charlottetown (the City)(Exhibit R2 at Tab 4).

On August 6, 1999, John Dalton, a property Development Officer with the City, notified the Appellant by letter that his application for a building permit was denied (Exhibit R2 at Tab 11). By Notice of Appeal dated August 23, 1999 the Appellant appealed this decision to the Commission (Exhibit A1).

At the commencement of the hearing on November 24, 1999, the Commission raised a preliminary matter concerning its jurisdiction to hear this appeal. The issue raised by the Commission was whether the Charlottetown City Council actually made a decision in respect of the administration of the City's Bylaws, which could be appealed pursuant to the provisions of Section 28 of the Planning Act.

The statutory authorities for matters related to land use in the City are 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, the Community of East Royalty Zoning and Subdivision Control Bylaw (Revised 1989) (Exhibit R4) continued to remain in effect until such time as the City adopted a new bylaw and official plan on August 25, 1999.

During this transitional phase, the City was also bound by its Planning Administration and Procedures Bylaw (Exhibit R5), the relevant subsections of which read as follows:
10.9 The Development Officer may issue a Building Permit, without referring the matter to the Planning Board or Council, provided that the proposed Building or Development meets all the provisions of the applicable Z.B.D.S. Bylaw(s).

10.10 Where an application

(a) is required by the applicable Z.B.D.S. Bylaw(s) to be reviewed by Council;
(b) is not entirely clear as to whether or not it conforms to the applicable Official Plan and/or applicable Z.B.D.S. Bylaw(s), or any other law(s) which may be in force; or
(c) …

the Development Officer shall submit the application to the Planning Board for review and a recommendation to Council.

The relevant subsection of the Community of East Royalty Zoning and Subdivision Control Bylaw (Revised 1989), is:

22.2 Building Permits

…

Where an application is not entirely clear in its intent, or where an application does not appear to conform with the Zoning and Subdivision Bylaws of the Community or any other laws which may be in force, the Administrator shall submit the application to Planning Board for consideration.

The Planning Board shall review the matter and make a recommendation to Council regarding approval or denial of the building permit application. Council shall make the final decision.

Further, the following subsections of the City of Charlottetown Zoning and Development By-law (1999) are also relevant:
1.2 REPEAL OF EXISTING BY-LAWS

The provisions of the Charlottetown Zoning and Development By-law as well as the Zoning By-laws and amendments thereto for the former municipalities of Sherwood, Parkdale, East Royalty, West Royalty, Hillsborough Park, and Winsloe are hereby repealed.

1.3 TRANSITIONAL PROVISIONS

1. Any application for a Building permit, a Sign permit, a footing permit, a demolition permit, or preliminary or final Subdivision approval that has been made to the Development Officer and is in progress as of the effective date of this By-law shall be processed to completion by the Development Officer in accordance with the provisions of this By-law.

2. …

After hearing arguments from both parties on the preliminary matter, the Commission issued an oral decision, finding that the City Council did not make a decision in the administration of its Bylaws and therefore the Commission is without jurisdiction to hear this appeal.

2. Reasons

In its finding that it has no jurisdiction to hear this appeal, the Commission has determined that on July 2, 1999 - the time the Appellant made application for a building permit, the Community of East Royalty Zoning and Subdivision Control Bylaw (Revised 1989) was the appropriate law upon which this application was to be processed – specifically subsection 22.2. In addition, the provisions contained in subsection 10.10 of the Planning Administration and Procedures Bylaw should have been applied.

Accordingly, because the application did not meet the applicable Bylaws the Development Officer was required to submit the application to Planning Board for review and a recommendation was to be made to Council who were to make the final decision.

However, according to the Respondent's submission, what transpired was that neither the Planning Board nor Council made a recommendation or decision on the application – the application was dealt with by the Development Officer. That being the case, the Commission determined that as no decision was made by Council in the administration of its Bylaw the Commission is without jurisdiction to hear the appeal.

Given the fact that the Appellant may now be caught by subsection 1.3 of the City of Charlottetown Zoning and Development By-law (1999), it would seem reasonable to the Commission that his application be completed according to the provision set out in subsection 4.52(4) of that By-law.
4.52(4) Where the Development Officer determines that an application:

a) is required by this By-law to be reviewed by Council;
b) is not entirely clear as to whether it meets the requirements of this By-law, or other By-laws or statutes which may be in force; or
c) is in respect of a building that may be inferior architecturally, in quality or may not appear to be in harmony with the surrounding streetscape;

The Development Officer shall refer the application to the Planning Board, and the Council shall, with a recommendation from the Planning Board, give direction on the disposition of the application.

This provision is quite similar to subsection 10.10 in the Planning Administration and Procedures Bylaw which governed the Appellant's application of July 2, 1999. Therefore, by proceeding in this fashion, the Appellant will be accorded the same opportunity to have his application dealt with by the elected officials of the City as would have taken place had the City completed his application properly in the first place.

DATED at Charlottetown, Prince Edward Island, this 3rd day of December, 1999.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Weston Rose, Commissioner
Elizabeth MacDonald, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:
13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.