Docket: LA00121 and LA01001
Order LA01-03IN THE MATTER of an appeal by James R. Bliss et al. against a decision by the City of Charlottetown dated November 29, 2000.BEFORE THE COMMISSION
on Thursday, the 24th day of May, 2001.
Maurice Rodgerson, Commission
Norman Gallant, Commissioner
Anne Petley, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses1. For the Appellants:
James R. Bliss
Allan H. (Jake) Bartlett
Jessie Frost-Wicks2. For the Respondent
Counsel:
David W. Hooley, Q.C.Witness:
Don Poole
Reasons for Order
1. IntroductionThis is a consolidated appeal filed with the Island Regulatory and Appeals Commission (the Commission) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Act) by James R. Bliss and William Wicks, identified as appeal LA00121, and Allan H. (Jake) Bartlett and James R. Bliss, identified as appeal LA01001, (the Appellants) against two decisions of the City of Charlottetown (the Respondent).
Concerning appeal LA00121, the Appellants Bliss and Wicks filed a Notice of Appeal on December 14, 2000 against a decision by the Respondent on November 29, 2000 to issue building permit 12062 to “Happy Harry's” [Happy Harry's P.E.I., owned by A.C.E. Holdings Limited] (the Developer) to allow the erection of a fenced compound (the development) on provincial parcel number 275198 (the subject property). The Appellants requested that appeal LA00121 be held in abeyance, pending reconsideration of the Respondent's decision pursuant to section 4.27 of the Respondent's Zoning and Development By-law (the By-law).
Concerning appeal LA01001, the Appellants Bartlett and Bliss filed a Notice of Appeal on March 1, 2001 against a decision by the Respondent on February 12, 2001 to dismiss the above noted reconsideration request.
The hearings of the appeals filed by the Appellants in this matter have been consolidated for administrative purposes, with the consent of the parties.
After due public notice and suitable scheduling for the parties, the Commission proceeded to hear the consolidated appeals on May 1, 2001.
Although included as a full party to the appeals and fully advised of the date, time and location of the hearing, the Developer was not represented at the hearing.2. Discussion
The Appellants
The Appellants note that they represent themselves and over one hundred concerned residents who live in the Palmers Lane / Parkview Drive area. Their position is contained in their December 14, 2000 Notice of Appeal (Exhibit A1), their February 28, 2001 Notice of Appeal (Exhibit A2) and was further expanded upon at the hearing. The Appellants submit the following points:
The subject property is in the Mixed–Use Corridor (MUC) zone. The Bylaw does not permit outdoor storage in a fenced compound in a MUC zone.
The recent history of strong opposition to another proposed building supply store in the same neighbourhood should have made the Respondent aware of the fact that a building supply store with outdoor storage was not a permitted use in a MUC zone.
There was ample time and opportunity for the Respondent to follow the procedure set out in the By-law to add building supply stores and outside storage as a permitted use in the MUC zone. In the alternative, the Respondent could have rezoned the subject property to a zone where outdoor storage was permitted. In either case, the Respondent would be required to hold a public meeting. However, rather than dealing with this problem by following proper procedures to amend the By-law, the matter was left to the interpretation of the Respondent's staff.
The Respondent misinterpreted and incorrectly applied the definition of section 3.131 “Outdoor Display Court” contained in the By-law and then, on this basis, determined that the development qualified as a permitted use in a MUC zone and issued building permit 12062, with a requirement for the fence to have battens on the west and north sides for screening. However, the definition of “Outdoor Display Court” suggests the display of completed products not component parts. As the development contains lumber and other building supplies, it clearly falls within the definition of “Outdoor Storage” contained in section 3.132 of the By-law. Further, one would not expect a requirement for visual screening around an “Outdoor Display Court”.
The Respondent interpreted hardware / lumber stores as conforming with the permitted uses listed in section 20.1 of the By-law for the MUC zone, given the existence of existing hardware / lumber stores in the same zone. However, these existing stores referred to by the Respondent can just as easily be permitted as non-conforming uses under section 4.21 of the By-law. Further, the Respondent's conclusion that a building supply store belongs in a MUC zone is not supported by the fact that, of ten identified building supply stores in Charlottetown, five are in one of the Industrial “M” zones, one is in the industrial park and four are in the MUC zone.
The Respondent's decision to permit a building supply store to relocate to a MUC zone and erect a fenced storage compound is contrary to numerous provisions of the Respondent's Official Plan which share a common purpose in protecting a residential neighbourhood.
With respect to Appeal LA01001, section 4.27 7. prohibits re-consideration by the Respondent if, at the same time, there is an appeal filed with the Commission. This section does permit a reconsideration by the Respondent if the appeal to the Commission is held in abeyance, and the Appellants had, in fact, requested that appeal LA00121 be held in abeyance to permit the Respondent to reconsider its decision. However, as there was no apparent progress on the reconsideration request by February 2001, the Appellants requested that the Commission lift the abeyance and Commission staff advised the Respondent of this in a February 5, 2001 letter. The Respondent proceeded to determine the reconsideration request on February 12, 2001. As the abeyance had been lifted by that time, the Respondent's determination of the reconsideration request was invalid.
The Appellants request that the Commission allow the appeals, quash building permit 12062 and order the removal of the fenced storage compound from the subject property.
The Respondent
The Respondent submits that it correctly applied and interpreted the By-law when it issued building permit 12062 to allow the development on the subject property. The Respondent submits the following points in argument:
Under section 20 of the By-law, there are forty-nine permitted uses in a MUC zone, including #32 Outdoor Display Court, #38 Retail Store, #39 Retail Warehouse and storage Building and #49 wholesale distribution warehouse. Given these permitted uses, it was reasonable to interpret the development to be a permitted use in the MUC zone.
The definition of “outdoor display court” provided in section 3.131 of the By-law has a wider meaning than contended by the Appellants. A reasonable interpretation would include lumber and other building supplies offered for sale.
The decision to issue the building permit for the development was based on good planning principles. The Developer was required to erect the fence in a “stepped” manner, install battens in the chain link fence facing Palmer's Lane and the neighbouring apartment building, and provide an 18-foot rear yard (Exhibit R1, Tab 5).
The Respondent requests that the Commission deny the appeals, as the Respondent correctly applied its By-law when it issued a building permit to the Developer.
Before the development was erected, the subject property contained a large, open and paved area. Vehicles could go in and out anywhere in that paved area. The development defines one point of entry and exit and, in so doing, makes the area near the subject property safer from a traffic standpoint.
3. Findings
After a careful review of the evidence, the submissions of the parties, and the applicable law, it is the decision of the Commission to deny the appeals. The reasons for the Commission's decision are as follows:
Appeals under the Act generally take the form of a hearing de novo before the Commission. In an often cited 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.
While the Commission does have the power to substitute its decision for that of the person or body appealed from, such discretion should be exercised carefully. The Commission ought not to interfere with a decision merely because it disagrees with the end result. However, if the person or body appealed from did not follow the proper procedures or apply sound planning principles to the application for a building permit, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.
Section 20 of the By-law states in part:
SECTION 20 MIXED-USE CORRIDOR (MUC)
20.1 PERMITTED USES
…
32. Outdoor Display Court
…
38. Retail Store
39. Retail Warehouse and storage Building
…
49. wholesale distribution warehouseSection 3.131 of the By-law defines “Outdoor Display Court”:
3.131 “Outdoor Display Court” means an area of land where goods are displayed which are, or which are similar to, other goods which are available for sale to the general public from a retail outlet located on the same Lot or on another Lot. Without limiting the generality of the foregoing, outdoor display includes the display of cars, trucks, vans, motor homes, trailers, boats, snowmobiles, motorcycles, Swimming Pools, decorative fountains, as well as prefabricated mini or Modular Homes and cottages.
Section 3.132 of the By-law defines “Outdoor Storage”
3.132 “Outdoor Storage” means the storage of merchandise, goods, inventory, materials, equipment, or other items by locating them on a Lot exterior to a Building.
The Respondent takes the position that the development is a permitted use under section 20 of the By-law; specifically #32 Outdoor Display Court, #38 Retail Store, #39 Retail Warehouse and storage Building and #49 wholesale distribution warehouse. In response to a question from the Respondent's counsel during the hearing, the Respondent's Development Officer agreed that the words “building supply store, hardware store or lumber store” are not listed in the By-law.
The Appellants take the position that the definition of an “Outdoor Display Court” would not include the use envisioned for the development: specifically the storage of building supplies. The Appellant submits that the development would properly fall under the definition of “Outdoor Storage” which is not a permitted use in the MUC zone.
The Commission notes, however, the definition of “Retail Warehouse” under section 3.162 of the By-law:
3.162 “Retail Warehouse” means a Building or Structure, or part thereof, where specific commodities are stored and sold. This definition includes home furnishings and products such as furniture and garden furniture, appliances, electrical fixtures, carpets, floor coverings, Building supplies, plumbing supplies, decorating supplies, catalogue sales, and sporting goods. (emphasis added)
The Commission is also aware of the definition of “Building” in section 3.24 of the By-law:
3.24 “Building” means any Structure, whether temporary or permanent, Used or built for the shelter, accommodation, or enclosure of Persons, animals, materials, or equipment, and Used for any of the foregoing purposes.
Further, the Commission notes the definition of “Structure” contained in section 3.176 of the By-law:
3.176 “Structure” means anything that is Erected, built, or constructed of parts joined together, or any such Erection fixed to or supported by the soil or by any other Structure. This term includes fences exceeding 1.8 m (5.9 ft.) in Height and wall Signs.
As “Retail Warehouse and storage Building” is listed as a permitted use in a MUC zone under section 20.1 of the By-law, the Commission finds that it is not necessary to determine whether the development represents an “Outdoor Display Court” or, in the alternative, “Outdoor Storage”. Building supplies are specifically included in the definition of “Retail Warehouse”. The definition of “Retail Warehouse” includes a “Building” and a “Structure”. “Structure” is defined as including fences exceeding 1.8 m (5.9 ft.) in height. The By-law clearly provides for the storage and sale of building supplies in a retail warehouse within the MUC zone.
At the hearing, the Appellants submitted that there is no evidence before the Commission to establish that the development exceeds 1.8 m (5.9 ft.) in height. The Commission, however, is satisfied that the development exceeds 1.8 m (5.9 ft.) in height, based on the plot plan contained in Exhibit R1 at Tab 5, which indicates a height of 7 feet for the development. The Commission also takes notice that the numerous photographs provided by the Appellants (Exhibits A4, A5 and A15) illustrate the height of the fence in relation to nearby objects that suggests that the height of the development exceeds 1.8 m (5.9 ft.). In particular, the photograph shown at the top of page one of Exhibit A5 (showing a person and a stepladder next to the fence) is helpful as a reference in this regard.
While the Commission finds that the Respondent did apply sound planning principles when it issued building permit 12062 to the Developer, the Commission does have a concern about part of the procedure used by the Respondent in this matter. It is the evidence of the Respondent that it considered four of the permitted uses listed under section 20.1 of the By-law and interpreted the development to be a permitted use in the MUC zone. In spite of the fact that the Respondent should be keenly aware of its own By-law, it was apparently unaware of the fact that the definition of “Retail Warehouse” under the By-law specifically includes the storage and sale of building supplies. This is especially surprising given the length of time available to prepare for the hearing, as well as the fact that this matter had been presented to the Respondent for reconsideration in the interim. Had the Respondent been aware of this aspect of the By-law, its decision would have been supported by clear and convincing reasoning, which would have provided support for its decision.
However, as these appeals are heard by way of a hearing de novo, the Commission finds that the By-law clearly permits a retail building supply store with a fenced compound in a MUC zone, as “Retail Warehouse and storage Building” is listed as a permitted use for that zone and by definition includes the storage and sale of building supplies.
With respect to the issue specific to Appeal LA01001 raised by the Appellants, namely that the Respondent's determination of the reconsideration request was invalid, the Commission notes that the Respondent dismissed the Appellant's reconsideration request. The Appellants had previously requested that the appeal no longer be held in abeyance, which effectively abandoned the reconsideration process in favour of proceeding with the appeal before the Commission. Since the Respondent's dismissal of the reconsideration request had the same effect as the Appellant's earlier decision to lift the abeyance, the Commission finds that this particular issue is not germane to the merits of the appeals. The filing of Appeal LA01001 did, however, serve to add Mr. Bartlett as a party.
For all of the foregoing reasons, the appeals are hereby denied.
4. Disposition
An Order denying the appeals will therefore be issued.
Order
WHEREAS James R. Bliss and William Wicks (LA00121) have appealed a decision by the City of Charlottetown dated November 29, 2000 to issue building permit 12062 to Happy Harry's P.E.I.;
AND WHEREAS Allan H. Bartlett and James R. Bliss (LA01001) have appealed a decision by the City of Charlottetown dated February 12, 2001 to dismiss a reconsideration request concerning the City's November 29, 2000 decision referred to in appeal LA00121 noted above;
AND WHEREAS these appeals were consolidated and the Commission heard the appeals at a public hearing conducted in Charlottetown on May 1, 2001 after due public notice and suitable scheduling for the parties;
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 denied.
DATED at Charlottetown, Prince Edward Island, this 24th day of May, 2001.
BY THE COMMISSION:
Maurice Rodgerson, Commissioner
Norman Gallant, Commissioner
Anne Petley, 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.