Docket: LA00117
Order LA00-13

IN THE MATTER of an appeal by Robin Lidstone against a decision by the City of Summerside dated August 7, 2000.

BEFORE THE COMMISSION

on Friday, the 24th day of November, 2000.

Wayne D. Cheverie, Chair
Maurice Rodgerson, Commissioner
James Carragher, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant 

Counsel:
Scott Peacock

2.    For the Respondent

Counsel:
David Hooley, Q.C.

Witnesses:
Thayne Jenkins

3.    For the Developer

Shawn Adams

Reasons for Order

1.  Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Act) by Robin Lidstone (the Appellant) against a decision by the City of Summerside (the Respondent), dated August 7, 2000 to grant a subdivision variance to Shawn Adams (the Developer).

The Respondent has authority to issue variances in accordance with the Corporation of The City of Summerside Zoning Bylaw SS-15 (the Bylaw) (Exhibit R7) and The City of Summerside Official Plan 1998 (Exhibit R8).

The Developer applied to the Respondent for a subdivision variance of his lot at 149 Harvard Street, property number 316505 (the subject property), in the City of Summerside.  The Developer proposed to subdivide the subject property, which is located in the Residential (R3) zone, in order to create a new residential lot with frontage on Milton Avenue.  The Developer requested that the Respondent grant, for the subject property, the following variances from the R3 Zone Residential Standards (Table 17-1 of the Bylaw) as permitted under section 6 of the Bylaw:

  • A reduction of the  minimum lot frontage from 16 metres to 15.5 metres;

  • A reduction of the minimum lot depth from 30 metres to 21.3 metres; and

  • A reduction of the minimum lot area from 480 square metres to 333 square metres.

The Respondent approved the requested variances from its Bylaw by Resolution dated August 7, 2000 (Exhibit R4).

The Appellant filed his Notice of Appeal (Exhibit A1) with the Commission on August 28, 2000.

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on November 6, 2000.

2.  Discussion

The Commission has carefully reviewed the written and oral submissions presented by the Appellant.  The Appellant submits the following points in argument:

  •     The Respondent failed to consider the five tests noted in section 6.2 of the Bylaw before granting the variances to the Developer.  In this particular case, there is no evidence that any of the five tests were met.  In fact, the Respondent's technical services staff recommended that the lot depth and area variances be denied.  The Respondent neither followed the requirements of its own Bylaw, nor applied good planning principles, when it granted these subdivision variances to the Developer.

  •     The Respondent failed to consider the historical character of the Harvard Street and Milton Avenue area.  The subdivision of the subject property would create a small lot which would not be in keeping with the neighborhood's historical character.

  •     The subdivision of the subject property would interfere with the flow of traffic on Milton Avenue, especially when vehicles would be parked in front of the proposed new lot.  At present, Milton Avenue bears the burden of increased traffic because motorists cannot turn left onto Harvard Street from Granville Street.  There is no indication that the Respondent has considered additional infrastructure to support intensifying the use of the subject property.

  •     The subdivision of the subject property would adversely affect the use, enjoyment and value of the Appellant's property, as he lives directly across the street from the subject property.  The residential standards contained in the Bylaw serve to protect the rights of nearby property owners. 

The Appellant requests that the Commission allow the appeal and declare the Respondent's resolution carried on August 7, 2000, void ab initio.  The Appellant further requests that the Commission issue an order that no variance shall be granted for any part of the subject property.  

The Commission has thoroughly reviewed the evidence and submissions presented by the Respondent. The Respondent submits the following points in argument:

  •     The Respondent followed the process detailed in section 6 of the Bylaw and reached its decision after considering the five tests for justifying a variance as articulated in section 6.2 of the Bylaw.  These five tests were set out in the resolution passed by Council.  In addition, Council considered the size of the other lots in the immediate area. 

  •     While Technical Services staff did not recommend that variances for the lot depth and area be approved, the Technical Services Committee recommended to Council that all three requested variances be approved.

  •     All eighteen-property owners who are within a 30 metre radius of the subject property were notified in writing of the requested variances.  Two property owners responded in writing, objecting to the application.  The other sixteen property owners did not comment.

  •     By approving the subdivision variances to the subject property, the Respondent was encouraging “infilling” of the neighborhood, a desirable principle from a planning perspective. 

As the requirements of the Bylaw were met and the Respondent's decision was in accordance with good planning principles, the Respondent requests that the appeal be denied.

In the alternative, rather than reversing the Respondent's decision, the Respondent suggests that the Commission could vary the decision by confirming the decision subject to the rear lot line of the proposed new lot conforming to the rear lot line of the adjacent properties.  The Commission would have the jurisdiction to vary the Respondent's decision, pursuant to subsection 28(8) of the Act, given that this appeal is a hearing de novo.

The Commission has carefully considered the evidence and submissions of the Developer.  The Developer submits the following points in argument:

  •     There are several families with young children near the subject property. No objections were received from any nearby families with young children. If development of the proposed lot were a true safety concern, one would expect that one or more of those families would have objected to the proposed development.

  •     Currently, the back portion of the Developer's lot is unused and children often wander through it.  The building of a new home on the proposed lot will enhance the neighborhood.

The Developer requests that the Commission deny the appeal.

3.  Findings

After a careful review of the evidence, the submissions of all the parties, and the applicable law, and for the reasons hereinafter stated, the Commission concludes that the decision of the Respondent must be quashed, and given the evidence, the Commission shall substitute its own decision to allow modified frontage, depth and area variances.

Appeals under the Act generally take the form of a hearing de novo before the Commission.  In a decision which provides considerable guidance to the Commission, In the matter of Section 14(1) of the Island Regulatory and Appeals Commission Act (Stated Case), [1997] 2 P.E.I.R. 40 (PEISCAD), Mitchell, J.A. states for the Court at page 7:

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

In Commission Order LA98-06, Norman Hall et al. v. City of Charlottetown, April 9, 1998, the Commission stated at page 4:

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

The Commission finds that the above-cited principle applies equally where a decision making body, such as the Respondent, approves an application for variances pursuant to its Bylaw.  Thus, a two-part test is invoked:

  •     whether the municipal authority, in this case the Respondent, followed the proper procedures as required in its Bylaw in making a decision to approve the requested variances; and

  •     whether the proposals for the variances have merit based on sound planning principles.

Section 6.1 of the Bylaw states:

6.1  Application may be made for variances which do not deviate more than 50% from the following standards in this Bylaw:

…

b.       Lot area, depth, or frontage standards for lots created through `minor subdivisions' under the Summerside Subdivision Bylaw, except as not allowed under a specific provision of this Bylaw.              

Section 6.2 of the Bylaw states:

6.2  Variance applications shall be considered by Council, Planning Board, or the Development Officer, as applicable, against the following tests for justifying a variance:

a.   That the lot in question has peculiar physical conditions, including small lot size, irregular lot shape, or exceptional topographical conditions, which make it impractical to develop in strict conformity with Bylaw standards.

b.  That strict application of all Bylaw standards would impose undue hardship on the applicant by excluding them from the same rights and privileges for reasonable use of their lot as enjoyed by other persons in the same zone.

c.  That the variance is of the least magnitude required to enable reasonable use of the lot.

d.  That any hardship cited by the applicant has not been created by some action of the applicant or the property owner, or cannot be remedied reasonably in some other manner.

e.  That the proposed variance would not impact unduly on the enjoyment of adjacent properties, or on the essential character of the surrounding neighbourhood, including taking into consideration any comments from neighbours.

From a review of the evidence, it is clear to the Commission that the administrative procedures set out in section 6.3 of the Bylaws were complied with.  The key question is whether the Respondent considered the variance application against the five tests for justifying a variance noted in section 6.2.  In other words, did the Respondent follow its own Bylaw?

The Commission notes that the Respondent's August 7, 2000 Resolution (Exhibit R4) lists the five-part test contained in section 6.2 of the Bylaw.  However, nowhere in the Resolution does it confirm that the Respondent's Council actually considered the section 6.2 tests.  The minutes of the August 7, 2000 special meeting of Council (Exhibit R3) reveal no discussion in favor of the Resolution, and no suggestion that the section 6.2 tests were actually considered by Council.   While the minutes of the July 31, 2000 meeting of the Technical Services Committee (Exhibit R1) reveal significant discussion in favor of recommending the application to Council for approval, there is no evidence from the minutes that the Technical Services Committee itself actually considered the section 6.2 tests. 

By contrast, the Agenda for the Technical Services Committee, dated July 31, 2000 (Exhibit R2) contained a staff assessment of the variance application pursuant to the five tests set out in section 6.2 of the Bylaw.  Had the Technical Services Committee agreed with the recommendation of staff to approve the variance to lot frontage but deny the variances to lot area and depth, it could reasonably be argued that in accepting staff's recommendation, the Technical Services Committee confirmed the staff assessment pursuant to section 6.2 of the Bylaw.  However, the Technical Services Committee did not accept staff's recommendation.  While the Technical Services Committee is not necessarily required to accept staff's recommendation, and is therefore free to make its own recommendation, there is no evidence before the Commission that the five tests set out in section 6.2 were addressed by the Committee when it made its decision independent of staff's recommendation. 

Given the absence of discussion in favor of the Resolution at the August 7, 2000 special meeting of Council and the absence of any indication that a consideration of the section 6.2 tests occurred at that meeting, the Commission finds that Council relied on the recommendation of the Technical Services Committee.  Accordingly, the Commission finds that the five tests set out in section 6.2 of the Bylaw were not considered by Council, the Respondent thus did not follow its own Bylaw and therefore the decision to approve the requested variances cannot stand.

However, this is not the end of the matter.  The Commission has the jurisdiction to substitute its own decision as this appeal is by way of a hearing de novo, as noted in Justice Mitchell's decision in the Stated Case. The Commission has the jurisdiction to issue an order giving effect to its decision as subsection 28(8) of the Act states:

28(8)  The Commission shall hear and decide appeals and shall issue an order giving effect to its disposition.

The Respondent's Bylaw clearly allows for the approval of a smaller variance than that applied for, as section 6.3 g. of the Bylaws states:

6.3 g.  A variance may be approved of less magnitude than that contained in an application.

While the Commission normally is reluctant to substitute its own decision without the benefit of an expert opinion, in this case the Commission has the benefit of the testimony of Thayne Jenkins, the Respondent's Development Officer.    While Mr. Jenkins was not formally qualified as an expert witness at the hearing, his knowledgeable and professional testimony was of great assistance to the Commission in this matter.  In addition, Mr. Jenkins' resume (Exhibit R9) reveals rather impressive credentials.

Mr. Jenkins noted that he prepared the staff assessment which was contained in the July 31, 2000 Technical Services Committee Agenda (Exhibit R2).  The Respondent's City Planner had agreed with the recommendations contained in the staff assessment.  Mr. Jenkins reviewed section 6.2 of the Bylaw and noted that by increasing the lot depth to follow the rear property line of the adjacent properties, the lot depth and lot area variances required would be approximately ten percent, rather than approximately thirty percent. This approach would be consistent with section 6.2 c. of the Bylaw, bringing the proposed lot closer to strict conformity with the Bylaw standards and at the same time allowing for reasonable use of the lot as enjoyed by other persons in the same area.  It is considered good planning practice to allow “infilling”; however, it is also good planning practice to maintain the existing rear lot line as closely as possible along a particular street. The subject property is the only through lot left in the immediate area.

The Commission has carefully considered the traffic safety concern voiced by the Appellant; however, there is no evidence before the Commission that a single unit residential development on the proposed lot will significantly affect the flow of traffic on Milton Avenue.

After having carefully reviewed the five tests noted in section 6.2 of the Bylaw, the Commission finds that it is reasonable and in accordance with good planning practices to permit a variance in the lot area, lot depth and lot frontage standards of the proposed lot; provided that the rear lot line is a straight line extension of the rear lot line of parcel number 316406 as illustrated below.

The Commission therefore orders the following variances from the Bylaw's R3 Zone Residential Standards (Table 17-1) in order to permit a new residential lot as a result of the subdivision of parcel number 316505:

  •     A variance of lot frontage to 15.5 metres;

  •     A variance of lot depth, with the rear lot line of the proposed subdivided lot a straight line extension of the rear lot line of parcel number 316406 as illustrated in these Reasons for Order; and

  •     A variance of lot area, based on the lot frontage and lot depth variances noted above.

The Commission is mindful that such variances, which according to the testimony of Mr. Jenkins, are approximately ten percent for lot depth and lot area, and approximately three percent for lot frontage, are of the least magnitude required to enable reasonable use of the lot.  The Commission notes that with these more modest variances, the proposed lot will be of a very similar size to adjacent parcels 316406 and 316422.  Accordingly, the Commission finds that this modified variance would not impact unduly on the enjoyment of adjacent properties, or on the essential character of the surrounding neighborhood.

For these reasons, the Commission has quashed the Respondent's decision of August 7, 2000 to allow variances to the Developer in order to subdivide the proposed lot from the subject property, and orders the Respondent to allow reduced variances, as specified in these reasons, to the Developer.                           

4.  Disposition

An Order will therefore be issued quashing the August 7, 2000 Resolution of the Respondent, allowing variances to permit the subdivision of the subject property, and substituting the Commission's decision to allow reduced variances that will enable the Developer to subdivide the subject property in closer conformity with the R3 Zone Residential Standards.

Order

WHEREAS Robin Lidstone appealed a decision of the City of Summerside, dated August 7, 2000;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on November 6, 2000 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 decision of the City of Summerside, dated August 7, 2000 to allow lot frontage, lot depth and lot area variances to permit a subdivision of parcel number 316505 is hereby quashed.

2.   A variance of lot frontage to 15.5 metres is hereby allowed.

3.   A variance of lot depth, with the rear lot line of the proposed subdivided lot a straight line extension of the rear lot line of parcel number 316406 as illustrated in the Reasons for Order, is hereby allowed.  

4.   A variance of lot area, based on the allowed lot frontage and lot depth variances noted above, is hereby allowed.             

DATED at Charlottetown, Prince Edward Island, this 24th day of November, 2000.

BY THE COMMISSION:

Wayne D. Cheverie, Chair

Maurice Rodgerson, Commissioner 

James Carragher, 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.