Client Update: Make Your List and Check it Twice: IRAC Sends a Holiday Reminder to Municipalities
The Island Regulatory and Appeals Commission (the “Commission”) has issued a holiday reminder to municipalities in Prince Edward Island about the importance of preparation, accuracy, and transparency when making decisions related to land use and development. On December 18, 2015, the Commission released its judgment on an appeal from a decision by the City of Charlottetown (the “City”) which refused to rezone a parcel of land.1 The appeal was allowed, and the City was ordered to rezone the property. The City has 20 days to appeal the decision to the Prince Edward Island Court of Appeal.
The property at issue was located adjacent to the Belvedere Golf Course. Both the owner of the property and the proposed developer applied to the City for rezoning. The property was zoned as open space; however, the owner and the developer sought new zoning to allow for a medium density residential development. Notice was provided to the public and nearby residents. A public meeting was also held to solicit input on the proposed rezoning. Both the planning department and the planning board recommended approval of the application to rezone the property, but a majority of council ultimately rejected the application.2 In a subsequent letter, the City notified the developer of the decision made by council. The developer then appealed the decision to the Commission.
In allowing the appeal and reversing the decision made by the City, the Commission found that the City did not satisfy its duty of procedural fairness to the developer and failed to decide the application on its merits. The Commission had three main concerns about the decision-making process followed by the City:
I. Preparation
The Commission found that the minutes from the meeting of council revealed that the councillors who spoke against rezoning had failed to properly inform themselves about the application before entering the chamber to vote on the project:
It is clear from the minutes of Council that the councillors who chose to speak had not bothered to inform themselves on the matter of the application before them. Those councillors spoke of concerns for which there were answers in the record, expressed concerns about matters which could have been and should have been canvassed by them long before they entered the Council chamber for a vote on such an important matter.3
II. Accuracy
The Commission found that the minutes from the meeting of council were inaccurate and did not properly reflect the concerns actually expressed by the councillors who opposed rezoning:
The Commission is concerned with the inaccuracies as set out in these minutes of the meeting. The verbatim Minutes of Council show that there were no concerns raised with respect to drainage. The only reference to drainage was a confirmation from the chairman of Planning Board that the developers had provided a draft drainage plan by a certified civil engineer. Drainage matters may have come up earlier in the application process but they certainly were not a concern at the regular meeting of Council on July 14, 2014 and it was improper for that concernto have been stated as such, in the minutes of Council.4
III. Transparency
The Commission found that the letter delivered by the City to the developer after rejection of the application did not actually explain the reasons and rationale given by the majority of council opposed to the project:
The Commission is very concerned with the letter noted above that was forwarded to the developer. This is the only communication sent to the developer to explain to the developer the reason why its application was rejected by Council. The reason and rationale set out in this letter is not the reason that is recorded in the Council’s Minute of July 14, 2014 and cannot be gleaned from the verbatim transcript of the Council meeting. It is not acceptable that the written explanation given to the developers as to why their project was rejected states a reason that was not even an issue at the Council meeting.5
Lessons for Municipalities
This holiday decision from the Commission is a reminder for municipalities about the importance of:
- ensuring that councillors are prepared and properly informed about the content of any application that is before them for a decision;
- ensuring that the minutes for all meetings related to any application are recorded accurately and capture the actual reasons being expressed in favour of or against a project; and
- ensuring that letters to any parties affected by a decision of council explain and summarize why council made its decision.
If you have any questions about this update or would like assistance in implementing this recent decision into your practices and procedures, please do not hesitate to contact our municipal government team at Stewart McKelvey in Charlottetown, Perlene Morrison, Jonathan Coady and Will Horne.
1 Order LA15-06.
2 Councillors Lantz, Hilton, and Coady voted in favour of the rezoning application.
3 Order LA15-06 at para. 33.
4 Order LA15-06 at para. 35.
5 Order LA15-06 at para. 37.
Archive
As many of you will now know, the Nova Scotia Government introduced legislation on Friday, December 6, 2013, amending provisions of the Nova Scotia Trade Union Act dealing with First Contract Arbitration. This client update sets out…
Read MoreIn a decision that will largely be of interest to international organizations that have been granted some type of immunity in Canada, the Supreme Court of Canada (SCC) has confirmed that international organizations enjoy immunity…
Read MoreThe Prince Edward Island (“PEI”) legislature has proposed changes to the PEI Human Rights Act to add “gender expression” and “gender identity” as new protected grounds of discrimination. First introduced on November 13, 2013 the…
Read MoreWe previously circulated a client update regarding contemplated changes to automobile insurance in Prince Edward Island. Government has now published a consultation paper (www.gov.pe.ca/photos/original/eljautoinreform.pdf), seeking responses in writing on or before December 2, 2013. According to the consultation…
Read MoreThe Association of Caribbean Corporate Counsel (ACCC) released the inaugural edition of its quarterly journal, Caribbean Corporate Counsel, featuring CEO, John Rogers, Q.C., advisor on the International Advisory Board, and an article by partner Paul Smith, entitled “Governance…
Read MoreCHANGES, CHANGES AND MORE CHANGES: KEEPING UP WITH THE TEMPORARY FOREIGN WORKER PROGRAM These days, Canada’s Temporary Foreign Worker Program (“TFWP”) is more top of mind than ever for Canadian employers. This is in part…
Read MoreBy October 17, 2014 existing not-for-profit corporations incorporated under Part II of the Canada Corporations Act (the “Old Act”) are required to be continued under the new Canada Not-for-Profit Corporations Act (the “New Act”) or face the possibility of automatic administrative…
Read MoreIN THIS ISSUE: Reasonable Cause: A necessary prerequisite for random alcohol testing policies by Mark Tector, Steve Carpenter, CHRP, Melissa Everett Withers, Ruth Trask Business Succession: Why is it critical? by Richard Niedermayer, TEP Privacy Please: Nova Scotia brings in new…
Read MoreOn May 19, 2011, Nova Scotia’s Labour Standards Code was amended to protect foreign workers from exploitation by recruiters and employers. These amendments imposed a requirement for third-party recruiters to obtain a license from the Province to…
Read MoreFacts This appeal arose from a decision which held that the Dominion of Canada General Insurance Company (“Dominion”) has a duty to defend Larry and Lona Hannam and their teenage son Jordan in an action…
Read More