Docket LA95007
Order LA96-01

IN THE MATTER of an appeal by Ellis and Birt, Limited against a decision of the East Royalty Community Council dated March 14, 1995.

BEFORE THE COMMISSION

on Thursday, the 4th day of January, 1996.

John L. Blakney, Vice-Chair
Emmett Kelly, Commissioner
Anne McPhee, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

Introduction

Discussion & Findings

Disposition

Order

Appearances & Witnesses

1. For The Appellant

Counsel:
John Mitchell

Witness:
Philip Wood, Planning Consultant

2. For Community

Administrator:
Kevin McCarville

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 by Ellis and Birt, Limited (the Appellant). The Appellant is appealing a decision whereby the East Royalty Community Council (the Council) denied a request to rezone part of a parcel (provincial property number 191783) from Two Family Residential (R2) to Multiple Family Residential (R3).

The parcel is located within the East Royalty municipal boundaries and is partly bordered by Andrews Pond, the St. Peters Highway and the Norwood Road.

The Planning Act, the East Royalty Official Plan and Zoning and Subdivision Bylaw, grant the Community Council of East Royalty the authority to approve rezoning applications and amend its Zoning Bylaw.

By Letter dated February 6, 1995, the Appellant formally requested the Community of East Royalty rezone a section of the parcel to Multiple Family Residential (Exhibit ER2).

On March 14, 1995, Council advised the Appellant that the request of the Company for rezoning was denied (Exhibit A1).

On March 24, 1995, the Company appealed the decision of the Community Council to the Island Regulatory and Appeals Commission (Exhibit A2).

On April 1, 1995, the five municipalities including the Community of East Royalty were amalgamated to form the City of Charlottetown.

The Commission heard the appeal at a public hearing on August 8, 1995.

2. Discussion & Findings

The principal arguments for the Appellant may be summarized as follows:

Council did not properly exercise its duty in considering and deciding the disposition of the application to rezone part of the parcel and failed to consider several relevant issues. The Council did consider a number of irrelevant issues.

The Appellant submits that pursuant to the Bylaws, once Council made a decision to pursue the amendment they had an obligation to refer to the Official Plan and determine whether or not the proposed rezoning conformed to the Official Plan policies. If it did they then had an obligation to approve the amendment. The Appellant argued that, even though the proposed amendment conforms with the Official Plan policies, Council did not approve the amendment. Although it considered other issues in reaching this decision, Council based its decision largely on the fact that they would not be around to negotiate a subdivision contract. The Appellant argued that this reason for the decision to deny was irrelevant to the issue of rezoning the land.

The Appellant also argued that Council was biased in their decision and claimed that Councilor Dave Darrach was in a conflict of interest when he participated in the discussions and voting on the rezoning application because of his local development and subdivision interests.

The Appellant contended that the proposed development complied with the Official Plan and Zoning Bylaws and was an appropriate development for the property. In addition, the proposed development satisfied all relevant concerns of Council and the residents.

The Appellant added that he was willing to enter into an agreement to allow for a contractual rezoning.

The Appellant requested the Commission allow the appeal and order that part of parcel number 191783 be rezoned to Multiple Family Residential (R3) Zone.

The case for the Community may be summarized as follows:

Kevin McCarville, on behalf of Council submitted that its decision complied with the requirements of the Bylaws and the Council acted within its authority in denying this application. Council believed they had a "moral" obligation not to rezone the property or enter into a development agreement as the municipal amalgamation process was near completion and a new council, which would represent the City of Charlottetown that would include the area known as the Community of East Royalty, should have an opportunity to decide this matter. Council argued that this is a legitimate reason for denying this request, as they would not be in office to negotiate and monitor a development agreement for this property.

Council acted fairly and in an impartial manner in denying the application to rezone.

Council's decision to deny the request for rezoning did not place any undue hardship on the Appellant as the Company is able to submit another application for consideration by the new City of Charlottetown.

Mr. McCarville submitted that Community Council's decision should be upheld and the appeal dismissed.

After giving full consideration to the evidence submitted in this case it is the decision of the Commission to allow this appeal. The reasons for the Commission's decision are as follows:

In regard to the rezoning of land, the Commission holds the opinion that no individual owner of property has a statutory right to a rezoning. It is normally up to the municipal council to decide whether or not to rezone land by following a specific process.

On appeals, the Commission is required to exercise independent judgment on the merits of each appeal, render a decision and issue an order. However, the Commission believes that decisions to rezone land should normally be left to the elected Community Council, which has been entrusted by its residents to decide such discretionary matters. The Commission is reluctant to interfere with the decision of elected representatives in the exercise of their discretion and ultimately exercising their authority to make or amend bylaws.

In considering this appeal, the Commission has examined the specific provisions of the East Royalty Zoning and Subdivision Bylaws and its provisions for rezoning - specifically Sections 23 and 24.

Where Section 23 states, inter alia:

Any application for rezoning shall be deemed to be an application to amend these bylaws, and shall conform to Part 24 of these Bylaws.

…

Council shall decide whether or not to grant preliminary approval to the rezoning application, and shall notify the applicant, in writing, within thirty (30) days whether or not the rezoning application has been granted preliminary approval or denied.

In the case where preliminary approval has been denied, the reason(s) for denial shall be stated in writing.

…

Upon granting preliminary approval of a rezoning application, Council shall authorize Planning Board to call a public meeting, in conformity with Section 18.(1) of the Planning Act.

And Section 24 states:

Any person desiring an amendment to the provisions of these Bylaws shall apply to Council in writing describing in detail the reasons for the desired amendment and requesting Council to consider the proposal.

Council shall determine whether or not to pursue such an amendment, and before making any decision shall examine the Official Plan to ensure that the amendment will not be contrary to any policy within the Official Plan.

No amendment shall be made to these bylaws except in accordance with the requirements of the Planning Act.

In reviewing the evidence submitted, the Commission understands that the Developer and Council discussed rezoning part of this property on March 14, 1995, where in a memorandum to Roger Birt from Kevin McCarville, Council states it is prepared to consider rezoning the property to allow for multi-unit dwellings (Exhibit ER1).

On February 6, 1995, Roger Birt on behalf of Ellis and Birt, Limited made an official request to the Community to have a section of parcel number 191783 rezoned to Multiple Family Residential (R3) (Exhibit ER2).

At a meeting of Planning Board on February 6, 1995, Roger Birt and Philip Wood presented the proposal for rezoning and the concept plan. At this meeting, Planning Board passed a motion to recommend Council grant preliminary approval to the rezoning request (Exhibit ER3).

By letter dated February 13, 1995, Council notified adjacent property owners of the Appellant's request and that Council granted preliminary approval to have a portion of the property rezoned from Two Family Residential (R2) to Multiple Family Residential (R3) (Exhibit ER5).

On February 28, 1995, after public notice was given, Council held a public meeting. The minutes of the meeting indicate the developer made a presentation and residents and members of Council were given ample opportunity to make representation (Exhibit ER8).

From the minutes of the meeting the Commission understands that a number of residents expressed concerns over the affects the development would have, including:

  • increased traffic flow on the Norwood Road;
  • rezoning the property and the approving authority not being able to control the type of development;
  • use of the land preserved for conservation by nearby property owners and people living in the subdivision;
  • development of apartment buildings and depreciation of property values on adjacent properties; and
  • use of a right-of-way onto St. Peters Road.

On March 8, 1995, Council met to discuss the application and decided to deny the request for rezoning. From the minutes, the Commission understands that Council considered the application and discussed several issues, including whether the new Council for the amalgamated City of Charlottetown would honor East Royalty Council's decision and if the rezoning was allowed what control would there be over development. Council also stated that they wanted to make clear that East Royalty preferred this property to stay an R2 zone (Exhibit ER 12).

The Commission, having considered the evidence presented in this case, is satisfied that the provisions of Sections 23 and 24 of the Bylaws were complied with.

The Commission finds that Council's reason to deny the Appellant's request for rezoning, as cited in their letter of March 14, 1995 - …amalgamation will eliminate their involvement in any development agreements which may be negotiated re the actual development of this sensitive area, is not a sufficient reason to deny the Appellant's application. The evidence supports that the Appellant complied with the provisions of the Bylaws and the Administrator reviewed the Official Plan and believes the proposal will not be contrary to any policy within the Official Plan. As Mr. McCarville stated during the hearing: the request for rezoning should have been approved by Council. Therefore, upon reviewing the submissions of all parties, the Commission finds that Council was obligated to reach a decision based on the merits of the rezoning request and not to rely on political amalgamation, a factor that had nothing to do with whether the rezoning had merit or not.

With respect to the statement contained in the Council minutes that East Royalty preferred this property to stay an R2 zone, the Commission has reviewed the events from the period where Council granted preliminary approval to the final Council meeting where the decision was made to deny the application. The Commission cannot help but ask the question if Council wanted to send a message that it preferred this property to stay an R2 zone then why did it grant preliminary approval? Certainly Section 23 of the Bylaws provides Council with the ability to deny an application and the Commission understands that preliminary approval should not be construed as final approval. However, in most situations after preliminary approval is granted, the Council would be required to have sufficient reason to subsequently deny an application.

From a review of the minutes of the public meeting and letters from concerned residents and the developer's revised proposal, the Commission is of the opinion that the concerns expressed at the public meeting and in the letters are not substantive enough to warrant a denial of this application.

In considering this development concept, the Commission believes the concerns expressed by Council and residents may be overcome by having the Appellant enter into a contractual agreement with the City, whereby the rezoning will be approved conditional on Council and the Developer agreeing to a specific development proposal.

The Commission heard evidence from Philip Wood that the Appellant was willing to enter into a contractual agreement for the development of this property. Such an agreement would allow the Appellant to develop apartment buildings next to existing residents and agree to undertake specific site design standards which would address the concerns of the residents. In addition, the Appellant will undertake to develop a number of townhouses at a total density per acre which would be no greater than that allowed in the Two Family Residential (R2) Zone.

The Commission finds that the development proposal of the property as presented by Mr. Wood is based on sound planning principles. The Commission has considered the proposed blending of densities which will allow higher density development to be located adjacent to the proposed commercial food store and along those sections of the property bordering the St. Peters Road and the Norwood Road. The blending of densities will also allow for lower density development to occur in the interior of the parcel adjacent to the more sensitive conservation area. Although some residents have argued that the property should remain in its present undeveloped state it is apparent to the Commission that if one considers the location and the fact that the property is currently zoned R2 it is inevitable that over time the property will be developed.

As pointed out earlier in this decision, in such cases that involve a denial of a request to rezone, and where circumstances allow, the Commission has demonstrated that it prefers to send the matter back to Council. However, in this case, as a result of municipal amalgamation there is now a new municipal structure and new council responsible for a larger urban area. Although there is a new Council responsible for making a planning decision on this issue, in the view of the Commission it is a Council that would logically operate from a completely different perspective then the former Council of East Royalty taking into consideration a much broader geographical area with different problems possibly requiring very different solutions. The Commission believes that the Appellant is entitled to have his proposal considered on the basis of the factors, policies and bylaws that applied at the time of the Company's application, especially since the application was complete. Because of the discretion involved in deciding a rezoning to do otherwise leaves the potential to have the rezoning decided on the basis of very different factors than would have been considered by the former East Royalty Community Council. The Commission cannot now send the matter back to the former Council and therefore, no matter how reluctant to order the City of Charlottetown to rezone some of the property it finds for the reasons stated that it must do so. The Commission believes it would be unfair to the Appellant to do otherwise.

In the result, the Commission has decided to allow the appeal and order the municipality to rezone part of property number 191783 from Two Family Residential (R2) to Multiple Family Residential (R3). The decision of the Commission is with the understanding that the Appellant and the City of Charlottetown enter into an agreement involving the development of this property. The rezoning is for part of property 191783 as identified in Figure I (below).

Figure I

Part of Property Number 191783 to be

Rezoned from Two Family Residential to Multiple Family Residential

wpe3.jpg (24557 bytes)

The Appellant argued that Council was biased in their decision and that Councilor Dave Darrach was in a conflict of interest as a result of his involvement in a nearby subdivision and should not have participated in the discussions and vote on the rezoning application. It is an accepted principle that Council including individual Councilors must act independently and without conflict of interest when making decisions within the statutory authority provided. However, given that the Commission has allowed this appeal for reasons previously stated, it is not necessary to make a decision on this allegation of bias.

3. Disposition

An Order quashing the decision of Council will therefore be issued and part of property number 191783 (as identified in Figure 1) will be rezoned from Two Family Residential (R2) to Multiple Family Residential (R3) on the understanding that the Appellant and the City of Charlottetown enter into an agreement for the appropriate development of the property that will provide for the following conditions that the Developer has already agreed to implement:

  • Pursuant to the provisions of the Bylaws and the requirements of the Conservation (O3) Zone the subdivision design will incorporate provisions to protect the Conservation Zone by the use of 75' to 100' setbacks and to minimize erosion and run-off by the use of grass swales to slow and redirect water. Provisions will be made for silt fencing during construction;
  • Access to the subdivision will be provided from the Norwood Road and not the St. Peter's Road;
  • As submitted by the planning expert, the 10' elevation differential from one side of the roadway to the other will be accommodated with a terraced - one way road system;
  • Lower density housing will be located closer to sensitive areas while higher density will be adjacent to and bounded by the Commercial (C1) Zone. Apartments are to be located on the lots adjacent to or bounded by the Commercial (C1) Zone and not on lots located near or at the end of the cul-de-sac.
  • Each apartment building is to be situated on a separate lot;
  • The apartment buildings adjacent to existing residential properties will be constructed with an undertaking by the Developer to use specific site design standards which reasonably address the concerns of the residents;
  • Reduce the total number of apartment buildings from the original plan and locate them closer to the Norwood Road, adjacent to the C1 Zone;
  • Multi-units will be used as a buffer from the commercial area;
  • Accommodate the view plane of existing residents in the placement of the multi-units and row housing.
  • The R2 area containing lots 40-57 inclusive (identified in Exhibit ER13) and practically surrounded by wetland now zoned R2 will be developed at an R1 density;
  • Undertake to develop a number of townhouses, in the area immediately west of the pond bordering on St. Peters Road, at a total density per acre which would be no greater than that allowed in the Two Family Residential Zone.

IN THE MATTER of an appeal by Ellis and Birt, Limited against a decision of the East Royalty Community Council dated March 14, 1995.

Order

WHEREAS Ellis and Birt, Limited appealed to the Island Regulatory and Appeals Commission in written notice dated March 24, 1995 against a decision by the Community of East Royalty;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on August 8, 1995 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 Council is quashed;
  2. Part of property number 191783 will be rezoned from Two Family Residential (R2) to Multiple Family Residential (R3) on the understanding that the Appellant and the City of Charlottetown enter into an agreement for the appropriate development of the subject property that will provide for the following conditions that the Developer has agreed to implement:
  • Pursuant to the provisions of the Bylaws and the requirements of the Conservation (O3) Zone the subdivision design will incorporate provisions to protect the Conservation Zone by the use of 75' to 100' setbacks and to minimize erosion and run-off by the use of grass swales to slow and redirect water. Provisions will be made for silt fencing during construction;
  • Access to the subdivision will be provided from the Norwood Road and not the St. Peter's Road;
  • As submitted by the planning expert, the 10' elevation differential from one side of the roadway to the other will be accommodated with a terraced - one way road system;
  • Lower density housing will be located closer to sensitive areas while higher density will be adjacent to and bounded by the Commercial (C1) Zone. Apartments are to be located on the lots adjacent to or bounded by the Commercial (C1) Zone and not on lots located near or at the end of the cul-de-sac.
  • Each apartment building is to be situated on a separate lot;
  • The apartment buildings adjacent to existing residential properties will be constructed with an undertaking by the Developer to use specific site design standards which reasonably address the concerns of the residents;
  • Reduce the total number of apartment buildings from the original plan and locate them closer to the Norwood Road, adjacent to the C1 Zone;
  • Multi-units will be used as a buffer from the commercial area;
  • Accommodate the view plane of existing residents in the placement of the multi-units and row housing;
  • The R2 area containing lots 40-57 inclusive (identified in Exhibit ER13) and practically surrounded by wetland now zoned R2 will be developed at an R1 density;
  • Undertake to develop a number of townhouses, in the area immediately west of the pond bordering on St. Peters Road, at a total density per acre which would be no greater than that allowed in the Two Family Residential Zone.

DATED at Charlottetown, Prince Edward Island, this 4th day of January, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Emmett Kelly, Commissioner

Anne McPhee, 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.