Order LA01-04 - Christopher MacDonald v. Resort Municipality (Aug. 16, 2001)

Docket: LA01004
Order LA01-04

IN THE MATTER of an appeal by Christopher MacDonald against a decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated April 17, 2001.

BEFORE THE COMMISSION

on Thursday, the 16th day of August, 2001.

Wayne D. Cheverie, Q.C., Chair
Kathy Kennedy, Commissioner
Anne Petley, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Counsel:
Sean M. Kelly

Witness:
Christopher MacDonald

2.    For the Respondent

Brenda MacDonald

Reasons for Order

1.  Introduction

This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) by Christopher MacDonald (the Appellant) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 (the Act). By Notice of Appeal (Exhibit A1) dated May 7, 2001, the Appellant is appealing the decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Respondent), dated April 17, 2001, to deny him a development permit to construct an artificial climbing wall and a 12-foot by 12-foot building (the proposed development) on parcel # 723874 (the subject property) located in Cavendish.

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on July 4 and 18, 2001.

During the course of the public hearing on July 4, 2001, the Appellant requested an adjournment in order to have the opportunity to review the matter and possibly provide additional evidence. The Respondent did not oppose this request. The Commission adjourned the hearing until July 18, 2001, at which time the hearing concluded after hearing the evidence and submissions of the parties.

2. Discussion

The Appellant contends that the Respondent should have issued a development permit for the proposed development. In the Notice of Appeal (Exhibit A1) the Appellant includes the following points as grounds for his appeal:

The plan for the proposed development exceeds the sewerage servicing requirements of the department of health.

The Respondent requested a comprehensive site plan from the Appellant for the proposed development and the Appellant complied with this request. According to Appendix “B” of the Respondent's Zoning & Subdivision Control (Development) Bylaw (the Bylaw), the comprehensive site plan must include “an indication that consideration has been given to accommodating the future development of the balance of the site.” The proposed development on the subject property will minimize the impact on the site by using facilities that do not alter the land. The site will be used for the proposed development for a period of 1 to 5 years, after which it will be moved to another location on the subject property to accommodate further development of the subject property by the landowner.

The waste management system planned for the proposed development will be pumped on a regular (weekly) basis and will pose no health hazards or any other problems such as odor or pests.

During the hearing, the Appellant further expanded upon his position and submitted the following additional points in argument:

The proposed development is not a development as contemplated by section 9.9 of the Bylaw. Rather, the proposed development is actually a transient or temporary use as considered under section 4.27 of the Bylaw because it would not be attached to the land, cannot sit on the ground during the winter and it will be moved to another portion of the subject property after the first or second summer of operation. The Appellant notes that the Respondent had informed him that the proposed development was a transient or temporary use when he had applied for a development permit for a similar project the previous year.

The need for washroom facilities is very minimal for the proposed development because customers usually spend an hour or less on the climbing wall. While indoor climbing walls generally have washroom facilities, outdoor climbing walls usually have either portable toilets or no washroom facilities at all. The proposed development would use portable toilets contained within a building, thus exceeding the usual standards of outdoor artificial climbing walls.

The proposed development would be consistent with section 1.3 of the Bylaw, as it would promote the health, safety, convenience and welfare of the public.

A variance under sub-section 15.1(2) of the Bylaw could be applied to permit the proposed development to proceed without requiring it to connect to the municipal sewer.

The Appellant requests that the Commission order the Respondent to issue a development permit for the proposed development, as the Respondent erred when it made its decision to deny this permit.

The Respondent expresses the position that it carefully followed the Bylaw when it made the decision to deny a development permit for the proposed development. The Respondent submits the following points in argument:

The subject property is within the Resort Commercial Zone (RD4). The proposed development falls within the definition of “Development” contained in section 2.25 of the Bylaw and therefore the requirements of section 9.9 of the Bylaw apply to the proposed development.

The proposed development does not meet the servicing requirements of section 9.9 of the Bylaw. The subject property is within the core area of the municipality and therefore section 9.9 of the Bylaw, in conjunction with Policies PS-1 and PS-2 of the Respondent's Official Plan 1999 (Official Plan), would require the proposed development to be serviced by central sewer services.

The Appellant applied for a development permit, not a transient or temporary use permit. He appeared before the Respondent and made a presentation indicating that the proposed development was not a transient or temporary use. Even if the proposed development was considered a transient or temporary use, he would have to satisfy the Respondent, pursuant to paragraph 4.27(7)(c) of the Bylaw, that the washroom facilities were adequate before a transient or temporary use permit would be granted.

The Respondent is not against the concept of the Appellant's proposed development; however in order for a development permit to be issued, the proposed development must comply with the Bylaw generally and section 9.9 in particular.

The Respondent requests that the Commission deny the appeal, as the proposed development does not meet the requirements of the Bylaw that the Respondent acted to uphold when it made the decision to deny a development permit to the Appellant.

3.  Findings

Following a careful review of the evidence, the submissions of the parties, and the applicable law, it is the decision of the Commission to deny this appeal. The reasons for the Commission's decision follow.

Appeals under the Act generally take the form of a hearing de novo before the Commission. Authority for this proposition is found in the decision of the Appeal Division of the Prince Edward Island Supreme Court, 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), where Mitchell, J.A. states for the Court at page 7:

When one considers the provisions of s. 28 and s. 37 in conjunction with the provisions of the Island Regulatory and Appeals Commission Act setting forth the composition, functions and powers of IRAC and takes into account that often the appeal will be the first opportunity for all of the interested parties to fully participate, 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 with care. The Commission ought not to interfere with a decision only because it disagrees with the 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 development permit, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

Section 9 of the Bylaw states in part:

SECTION #9 - RESORT COMMERCIAL ZONE (RD4)

9.1 GENERAL

Except as provided in this Bylaw, all buildings or structures or parts thereof erected, placed or altered or any land used in an RD4 zone shall conform with the provisions of this Section.

...

9.9 SERVICING
All developments within an RD4 zone shall either be serviced by central   sewer services or shall require installation of an on-site sewage treatment system designed and certified by a qualified engineer licensed to practice in the Province.

Section 2.25 of the Bylaw defines the term “Development”:

2.25 “Development” – means the carrying out of any building, engineering, excavation, dumping, filling or other operations in, on, over or under land, or the making of any material change in the use, or the intensity of use of any land, buildings, or premises without limiting the generality of the foregoing.

While the Appellant argues that the proposed development is not a development as contemplated by section 9.9 of the Bylaw, but rather a transient or temporary use as considered under section 4.27 of the Bylaw, the Commission notes that the Appellant has applied for a development permit, not a permit for a transient or temporary use. Accordingly, the present appeal is limited to the Appellant's application and the Respondent's decision in response to that specific application. However, even if the Appellant had applied for a permit for a transient or temporary use, the Respondent appears to have the discretion, under sub-section 4.27(7) of the Bylaw, to deny a permit where in the opinion of the Respondent, the washroom facilities are not adequate.

The Commission has reviewed the Appellant's development permit application (Exhibit R7) for the proposed development and notes that it consists of an artificial climbing wall and a 12-foot by 12-foot building. This application also indicates that the purpose of the proposed building is to provide change rooms and washroom facilities consisting of two enclosed portable toilets. The Commission finds that the proposed development includes a “building” and “engineering” (artificial climbing wall) on or over the land. Furthermore, the proposed development can also be characterized as “operations” “on” or “over” land and a “material change in the use” or “intensity of use” of the land.

Accordingly, the Commission finds that the proposed development meets the definition of “Development” under section 2.25 of the Bylaw and therefore section 9.9 of the Bylaw applies to the proposed development.

The Appellant clearly indicated at the hearing that he was not challenging the validity of the Bylaw.

There is nothing before the Commission to suggest that the Respondent is not entitled to enact a bylaw, under the authority of the Act, with stricter standards than the minimum requirements of a provincial government department or body, such as Environmental Health (Exhibit R3). While the Respondent's bylaws must meet minimum provincial health standards, the bylaws may provide for stricter standards so that the Respondent may also meet the policies and objectives of its Official Plan. The Commission finds that the Respondent applied the Bylaw correctly when it denied the Appellant's application because this application did not comply with the requirements of section 9.9.

The Commission is not aware of any evidence to support a finding that the Respondent failed to apply sound planning principles when making its decision to deny the Appellant's application for the proposed development.

Since the Respondent applied its Bylaw correctly when it made the decision to deny the Appellant's present application for the proposed development, the Commission finds that this appeal must be denied.

4. Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS the appellant Christopher MacDonald has appealed a decision made by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated April 17, 2001 to deny him a development permit for an artificial climbing wall and a 12-foot by 12-foot building;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on July 4, 2001 and July 18, 2001 after due public notice and suitable scheduling for the involved 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 16th day of August, 2001.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Kathy Kennedy, Commissioner

Anne Petley, 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.