Docket: LA92007
Order: LL92-8IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by George Murphy and concerned residents (the Appellants) of Winsloe, against a decision whereby the Community of Winsloe (the Community) issued a building permit to the P.E.I. Humane Society to erect an animal shelter and administrative office on part of property (Provincial Property Number 681270) located in the Community of Winsloe, P.E.I.
BEFORE THE COMMISSION
on Wednesday, the 9th day of September, 1992.
John L. Blakney, Vice Chairman
Anne McPhee, Commissioner
Clayton Bulpitt, Commissioner
Order
Appearances1. For the Appellants
George Murphy the Appellant,
Ralph Frizzell in support of the Appellant,
Leigh O'Brien in support of the Appellant,
Wayne White in support of the Appellant,
2. For the Community of Winsloe
Doug Cook Chairman, Winsloe Community Council
Basil Hambly Vice-Chairman, Winsloe Community Council
Betty Pryor Administrator, Community of Winsloe
3. For the P.E.I. Humane Society
John Hennessey Legal Counsel for the P.E.I. Humane Society
Nadine Smith Executive Director, P.E.I. Humane Society
Decision
I. BACKGROUNDIn accordance with the Planning Act and the Winsloe Official Plan and Winsloe Zoning and Subdivision Control Bylaws, the Community of Winsloe has the authority to approve or deny the issuance of building permits.
On May 25, 1992, Marilyn Cullen submitted an application (Exhibit 45) to subdivide a 3 acre parcel of land from the parent property (Provincial Property Number 681270). The proposed use for the land is an animial shelter and administrative offices. The property is located at the intersection of Route 223 (the Winsloe Road) and the Royalty Junction Road in the Community of Winsloe, P.E.I. After analysis of the application was carried out by the P.E.I. Department of Transportation and Public Works (Exhibit 25) and the P.E.I. Department of Community and Cultural Affairs (Exhibit 44), the Community Council gave final approval on June 29, 1992, to allow the subdivision to occur.
On May 26, 1992 the P.E.I. Humane Society made application (Exhibit 34) for a building permit to erect an "animal shelter and administrative offices" on part of property (Provincial Property Number 681270). The property is zoned Rural (A1) and has been used for farming purposes.
On June 25, 1992, the Winsloe Community Council decided that the application for a building permit should be treated as a "major development", pursuant to the Winsloe Zoning and Subdivision Control Bylaws, and a public meeting would be held to provide residents with the opportunity to comment on the proposal (Exhibit 31).
In a letter dated June 27, 1992, to Nadine Smith, Executive Director of the P.E.I. Humane Society, the Community Council indicated that the application would be deferred until the residents of the community were given an opportunity to provide comments on the proposal. Council also indicated they had some concern with the proposal regarding: " animals being dropped off at the facility after hours, and the potential of having more stray animals in the area. Being closer to urban areas than your current facility, there is concern that it may pose a problem"(Exhibit 31).
On July 6, 1992 a public meeting was held to discuss the application for a building permit. Approximately eighteen residents were in attendance. Members of the public spoke both in favor and against the proposed development. Comments from those in favor included: "the proposed building is much better to look at than some others around the area", and "Winsloe needs some speculative development". Comments from those against the development include: "the smell and noise would be a major detrimental factor and that property values would be negatively effected". They were "...not objecting to what the Humane Society was doing but wanted them to do it elsewhere" (Exhibit 24) .
On July 14, 1992, at a special meeting of Community Council, Council considered the the proposed development and decided to issue a building permit to the P.E.I. Humane Society to: "erect an animal shelter and an administrative office" (Exhibit 20). The permit was issued subject to the following:
"1. The proposal being developed in accordance with the Fortune 50 Design drawings dated June 22, 1992.
2. The sewage disposal system is installed in accordance with Community and Cultural Affairs requirements .
3. The driveway having a maximum 3% downgrade to right of way".
In a letter to Nadine Smith, dated July 15, 1992, Council requested a written guarantee: "that the Humane Society will work with Council and the residents to ensure that the noise level is kept to a minimum and that the facility is to be maintained in a manner which is virtually odorless"(Exhibit 19).
On July 16, 1992, Nadine Smith responded to the request by the Community Council (Exhibit 18), indicating: "Please accept this letter as our commitment to maintain just such a consultative relationship with the Council and Community of Winsloe. As you are aware, we have already sought to meet such concerns in every possible way to ensure that our facility remains an attractive and beneficial component of the community and surrounding area".
On July 20, 1992, George Murphy and other concerned residents of the Community of Winsloe appealed the decision of the Community Council to The Island Regulatory and Appeals Commission (Exhibit 12).
The Commission heard the appeal on September 9, 1992 in the Lions Club Hall at Winsloe.
II. EVIDENCE AND ARGUMENTSA. Appellants
Arguments for the Appellants can be summarized as follows:
1. The noise and smell from the animals will have a negative impact on surrounding land owners.
2. The proposed development will have a detrimental effect on the future expansion of existing businesses in the area.
3. The proposed development will have a detrimental effect on the values of surrounding properties and businesses.
4. The fact that pets will be destroyed in the building will have a negative emotional effect on local children.
5. The Appellants argued that the storage of the animal carcasses will pose a problem. The Humane Society did not indicate the length of time the carcasses will be stored and how they will be disposed.
6. The Appellants argued that the P.E.I. Humane Society has experienced financial trouble in the past, and there is no reason to believe that the Society will not experience the same situation in the future. This situation will "make it difficult to operate and maintain the facilities and to adequately staff the operation". "The Community residents or the tax payers can not be responsible for maintaining the facility if financial trouble occurs."
7. A "dog pound" should not be built in the center of any community. The structure could be developed away from the center core of the community and continue to be accessible to the public. There is an abundant amount of land in the community with areas more suitable than the present location.
8. The proposed development will result in a loss of the identity of the community. The Community of Winsloe will be referred to as the community with the "dog pound".
B. Community
Arguments for the Community can be summarized as follows:
1. The Community considers the proposed kennel and administrative office a permitted use under the Rural (A1) Zone.
2. The Community Council assessed the level of opposition for the proposed development by talking to several residents who lived in close proximity to the site. Based on this assessment, the Community Council determined that there was "very little opposition" to the proposed development.
3. The Winsloe Planning Board determined that the "building permit application was acceptable", however they wanted the issue of animals being dropped off to be addressed prior to approving the application. The Planning Board and the Council considered the proposed development a "major development" and a public meeting was called to discuss the building permit application.
4. On July 14, 1992, Council held a special meeting to discuss and make a decision on the P.E.I. Humane Society's application. In reaching its decision Council considered the following: comments from the P.E.I. Department of Transportation and Public Works regarding the location of the driveway; the opportunities of George Murphy to capitalize on the kennel facilities; the problems associated with smell and noise; the "legitimate" concerns of the residents; and whether the permit could be refused "because people did not want it". Council determined that a request for written assurance from the Humane Society was necessary to deal with the above noted issues and approved the building permit.
5. Council believed that the development would have positive impacts on the Community, including: more animal control, additional tax dollars, local job creation, increased spending, and its educational value.
6. Council concluded that all procedures were followed in accordance with the bylaws.
C. P.E.I. Humane Society
Arguments for the P.E.I. Humane Society can be summarized as follows:
1. The building is a state-of-the-art facility and in the opinion of a qualified architect and a building designer the issue of noise and smell will not be a problem.
2. Legal counsel argued that the Commission must give consideration to the fact that the decision was made by elected officials who represent the community. The Community Council has complied with all the requirements of the application process and the Zoning and Subdivision Control Bylaws and did not err in the process. Council has thoroughly examined the proposal and voted unanimously in favor of the application. The community residents were provided an opportunity to be heard.
3. The project as proposed will not have a detrimental impact, in spite of the fears people may have.
4. The proposed development is a permitted use in the Rural (A1) Zone. The proposal conforms to the Bylaws and to the Official Plan.
III. DECISION5. The appellants grounds for the appeal are not substantiated enough to allow the Commission to overturn the decision of the Council.
Having considered the evidence presented during the hearing the Commission decided to allow the appeal. The reasons for allowing the appeal are:
A community that experiences growth and conversion of land uses usually must concern itself with the manner in which growth and change will occur to ensure orderly and rational development. The Planning Act of the Province of Prince Edward Island provides the statutory authority for local municipalities to adopt community or official plans and zoning and subdivision control bylaws to set the direction for orderly land development within municipal boundaries. Usually, the objective is to set an orderly pattern of development that segregates land uses to ensure land owners can reasonably enjoy the use of their property and security of investment without undue interference from adjacent uses. "The zoning power is intended to prevent nuisance and physical interference with land and ensure that uses are physically compatible."1
For some time the Community of Winsloe has demonstrated a responsibility for directing the orderly pattern of development of its land base through the adoption of the Winsloe Official Plan and the Winsole Zoning and Subdivision Control Bylaws. The Official Plan "sets out the Community's objectives and policies concerning growth and development within the Community of Winsloe"2 and the Zoning and Subdivision Control Bylaw designates zones for permitted categories of uses to implement the official plan policies.
"Bylaws to regulate the location and use of land, buildings and structures, and for this pupose to divide the lands within the Community of Winsloe into zones pursuant to the provisions of the Planning Act (1988), having due regard to:
a) the promotion of the health, safety, convenience, and welfare of the public;
b) the preservation of natural amenities;
c) the value of land and the nature of its present and prospective uses;
d) the promotion of good environmental practices; and
e) the implementation of the Winsloe Official Plan."3
The zoning bylaw is based on the premise that the "rational separation of conflicting uses is desirable ..."4 and the "rational separation of conflicting uses" is the actual spatial allocation of specific permitted land uses to identified land areas within the municipal boundaries which effectively translates into the "segregation of people and the uses they make of their land".5 Schedule A of the Zoning Bylaw is the geographical map that designates the zones for the Community of Winsloe.
In accordance with the Winsloe Zoning and Subdivision Control Bylaws the site for locating the P.E.I. Humane Society animal shelter is zoned Rural (A1). Section 6.10.3 of the Bylaws allows the issuance of a building permit in a Rural (A1) Zone for "animal kennels". The Appellants argued that the P.E.I. Humane Society's facility could not be considered an animal kennel. In the view of the Commission it is not clear that the proposed development fits the definition of animal kennel. It would appear that on the surface there is little argument that the animal shelter reasonably fits the category of animal kennel.
Section 4.2 (e) of the Winsloe Official Plan introduces the concept of "traditional agricultural practices".
"4.2 Agricultural
In order to protect and enhance the Community's agricultural base, it shall be Council's policy to:
e) allow the continuation of traditional agricultural practices on all open lands within the Community, provided such practices conform to the requirements of the Winsloe Zoning and Subdivision Bylaws."6
The Commission understands that there can be no conflict between a zoning bylaw and official plan policy. Section 15(2) of the Planning Act states:
Section 15(2) "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."
In order to reach a decision as to whether or not the proposed development is indeed an animal kennel within the meaning of the Official Plan and Zoning Bylaw the Commission takes guidance from the words "traditional agricultural practices". Webster Comprehensive Dictionary defines traditional as "that which is so transmitted; a body of beliefs, or usage so handed down from generation to generation." From this definition the Commission draws the conclusion that the "usage" of agricultural lands permitted in a Rural (A1) Zone must support or enhance agricultural activities "handed down from generation to generation." Although an animal kennel is a permitted use the Commission believes that within the meaning of the Official Plan it is a permitted use incidental to the agricultural activities within the zone and not a primary use. The proposed animal shelter with administrative offices is considered by the Commission to be the predominant, in fact, the only use of the 3 acre parcel of land. In addition, the Commission does not believe it to be a traditional agricultural activity nor incidental to other agricultural activities in the zone. The Council gave consideration to the positive economic impacts on the community but based on the evidence was silent on the protection and enhancement of the agricultural base. The Commission concludes that the proposed use has little to do with supporting or enhancing traditional agricultural uses in the zone and therefore to allow the issuance of the permit would be inconsistent with plan policy.
At the root of the zoning method for controlling land use is the notion of preservation of land values and a positive climate for future investment in development. "The preservation of property investment is the prime motive underlying many by-laws although they do not always clearly articulate this policy."7 The Commission is convinced that Winsloe Zoning Bylaw does articulate this policy especially when it makes reference to " the value of land and the nature of its present and prospective uses" as part of its criteria for segregating land uses. Consequently, it is the view of the Commission that the Winsloe Zoning Bylaw segregates land uses and attaches permitted uses to each zone to assist in securing a rational pattern of land uses, in part, to secure important investment decisions that have already been made by residents and land owners. It is clear from the evidence that landowners in close proximity to the site have invested much time, energy and money in their residential and commercial properties and that these developments have been approved by the Council which the Commission presumes were approved in accordance with official plan policy and the zoning bylaw. It was readily apparent to the Commission that the Appellants, as well as many residents felt their investments threatened with the location of the aninmal shelter due to the noise and odor associated with the boarding of the animals.
In general, the method of prohibiting the issuance of a building permit for a use not included in the zone as a permitted use reduces the degree of discretion needed for a decision-making authority to reach a decision. The pre-establishment of acceptable uses within a zone through the adoption of a bylaw establishes the range of uses that will help to ensure that future developments within the municipal boundary and within a particular zone are compatible. However, municipal councils must also be aware that there are zone boundary limits and at some geographical point two boundaries of different zones will interface, for example a residential zone adjacent to a commercial or industrial zone. A community can be faced with a situation where two different land use activities, each permitted in their respective zones cause nuisance or interfere with one another. In order to deal with this situation the zoning bylaw normally makes a general provision to prevent undesirable situations from occurring where two zones interface. The Winsloe Zoning Bylaw contains such a provision:
Section 4.6 No building permit shall be issued for any development where the proposed develpment would:
a) create a traffic hazard;
b)have a detrimental impact on surrounding land uses;
c)be detrimental to the convenience, health or safety of occupants or residents in the vicinity of the general public;
d)result in undue damage to the natural environment;
e)result in a fire hazard to the occupants or to neighboring buildings or structures.
Therefore, even if a use is permitted in a zone the decision-making authority must ensure the development proposal meets the test of Section 4.6.
In the view of the Commission, to determine whether or not a particular development proposal has a detrimental impact calls for a conclusion that is discretionary in nature. The Winsloe Community Council was required to consider any detrimental impact the proposed development would have on surrounding land uses and the convenience, health or safety on residents in the vicinity. According to the evidence given by the Administrator, the Council determined that the animal shelter would not have a detrimental impact based on the following: information received from other locations, mainly the City of Saint John; input from residents in the vicinity of the site; written assurance that the P.E.I. Humane Society would maintain a consultative process with the Council and residents to solve any problems that might arise with the operation; and the building would be a bonus to the community from an aesthetic standpoint. It is apparent to the Commission that the Council had concerns with the possibility that the operation would have a detrimental impact on surrounding land uses and the activity might cause inconvenience to residents in the vicinity or it would not have requested "a written guarantee". The architect for the P.E.I. Humane Society indicated in his evidence that there should not be any amount of odour if the facility is well maintained. The Commission does not believe that "a written guaranttee", albeit in good faith, to maintain a consultative process will ensure that any detrimental impacts will be dealt with effectively.
Considering the commerical land uses and zoning to the east of the site and the residential use of the property that has been established to the west through deliberate decisions of Council, the Commission does not believe that the proposed use conforms to or is compatible with adjacent land uses. Nor is it the Commission's belief that the facility will promote the types of commercial uses permitted in the adjacent commercial zone, for example: banks and financial institutions, medicial and dental clinics, restaurants and fast food outlets, hotels and motels. Although the proposed use has some similarity to animal hospitals and veterinary establishments the nature of the activities associated with veterinary clinics is very different from boarding stray and unwanted animals. As a result of such incompatibility with the commercial zone and residential subdivisions located adjacent to the site, it is the view of the Commission the proposed use will have a detrimental impact on adjacent land uses and will interfere with or be detrimental to what is expected to be the normal enjoyment of residential and commercial property located in the vicinity of the site.
The Commission commends the P.E.I. Humane Society on its effort to provide a state of the art facility for the receiving, the sheltering, the care and the adoption of stray or unwanted animals. The Commission well understands the tremendous contributions to community that the volunteers and staff of the Society make by ensuring animal welfare but could not help but note the sincere concern of some community residents with the location of the animal shelter. It is apparent from the minutes of the public meeting held by the community and the evidence heard during the appeal hearing that some residents were concerned with the site and the concerns were made known to Council prior issuing the permit. It is well established that a municipal council cannot abdicate its responsibilities under a zoning bylaw to decide a development matter by allowing residents in attendance at a public meeting to dictate by vote or other means, a decision. On the other hand, it is also well established that the public process is an integral part of the municipal planning and decision-making process. The importance that the Community of Winsloe gives to public input is obviously supported by Section 5.31 of the Winsloe Zoning and Subdivision Control Bylaw. Section 5.31 requires that in the case of "major developments", the Council is required to hold a public meeting to allow representations from the public relevant to a major development proposal. In the opinion of the Commission, the purpose for the meeting is to receive input from interested residents or the public and because this is a special procedure for dealing with major development proposals there is a responsibility to give careful consideration to their concerns. The Commission believes that the Council did give careful consideration to identified concerns and as a result required the P.E.I. Humane Society to give a written guarantee to participate in a consultative process if the problems became a reality. Although the Appellants were not prepared to present any expert documents or reports to support their contention of detrimental impact, the Commission is convinced their concerns have merit. The Council found that if detrimental impacts resulted from the operation of the animal shelter at this location that a consultative process would suffice to deal with the problem. The nature of the agreement does not guarantee corrective measures will be taken only that a consultation process will take place, therefore giving neighboring residents and landowners little comfort.
The Commission agrees with the Council that the building would be a bonus to the community. However, the Commission does believe that based on the evidence presented by the Appellants and the concerns of the residents, locating the facility on a site that is adjacent to the commercial centre of the Community and next to established and designated residential areas will be injurious to adjacent residents, businessowners and landowners. Despite the fact that the Society has designed the building with resident concerns in mind, the Commission believes that its location on this particular site will have a detrimental impact on land uses in the vicinity and the convenience of residents due to its non-conforming characteristics. The Commission finds that the P.E.I. Humane Society will not be unduly harmed or injured by not locating its facility on this site, especially since it has not purchased the property.
The Commission therefore allows the appeal.
BULPITT, COMMISSIONER (Dissenting): I dissent from the findings in the majority's Decision and Order for reasons which follow:
The proposed use of the site for an animal shelter operated by the P.E.I. Humane Society will not result in detrimental impact on the surrounding land uses nor will it be injurious to residences or businesses located in the vicinity of the site.
The proposed use of the building is compatible with the commercial uses located across the Winsloe Road from the site and the location of the building on the site is far enough away from residential properties and the motel to have any significant detrimental impact.
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by George Murphy and concerned residents (the Appellants) of Winsloe, against a decision whereby the Community of Winsloe (the Community) issued a building permit to the P.E.I. Humane Society to erect an animal shelter and administrative office on part of property (Provincial Property Number 681270) located in the Community of Winsloe, P.E.I.
OrderWHEREAS
George Murphy (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated July 20, 1992, against a decision of the Community of Winsloe;AND WHEREAS
the Commission heard the appeal at a public hearing conducted in Winsloe, P.E.I. on September 9, 1992, after due public notice;AND WHEREAS
the Commission has made a decision in accordance with the stated reasons;NOW THEREFORE
, pursuant to the Planning Act;IT IS ORDERED THAT
the appeal is hereby allowed.DATED
at Charlottetown, Prince Edward Island this 13th day of October, 1992.BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
(DISSENTING)
Clayton Bulpitt, Commissioner
1
Mackuch, Stanley M., Canadian Municipal and Planning Law, The Carswell Company Limited, Toronto, Canada, 1983. p.205.2
Winsloe Official Plan, revised 1988, p.1.3
Winsloe Zoning & Subdivision Control Bylaws, 1988.4
Canadian Municipal and Planning Law, p. 193.5
Rogers, Ian MacF., Canadian Law of Planning and Zoning, 1992 - Release No. 3, The Carswell Company Limited, Toronto, Canada, p. 122.6
Winsloe Official Plan, 1988, p.5.7
Canadian Law of Planning and Zoning, p.122.