Jonathan Coady and Michael Fleischmann

Overview

Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities, developers and planning professionals throughout Prince Edward Island, this process often includes a survey of the decisions made by the Island Regulatory and Appeals Commission (“Commission”). The Commission is an independent tribunal that decides appeals from provincial and municipal land use planning decisions¹. In 2018, the Commission released one decision that engaged substantive planning principles. In this summary, we will review this decision and discuss its implications for municipalities, developers, and planning professionals in Prince Edward Island.

Discussion

In LA18-02, the Queens County Condominium Corporation (“Condo”) appealed a decision by the City of Charlottetown (“City”) to make a site-specific amendment to its zoning and development bylaw. The amendment followed an application by a developer to build a four-level, 23-unit apartment complex next to the Condo. In essence, the bylaw amendment approved changes that allowed the affordable housing project to proceed.

On appeal to the Commission, the Condo argued that the City made three errors:

 (i) the City breached its zoning and development bylaw by failing to obtain design review approval before issuing notice of the public meeting;

(ii) the City did not follow the advice of its planning staff; and

(iii) the apartment building was not the “best development” for the property.

The Commission rejected each of these arguments.

I. A technical breach of a bylaw does not always invalidate a municipal decision.

The City had two procedural obligations before it could approve the bylaw amendment:

(i) a design review was necessary because the property was located in a designated zone which required that an independent assessment of the development be completed to ensure its compatibility with the character of the surrounding area; and

(ii) a public meeting was required because the proposed development would exceed the maximum building height in the zone.

In this case, the City provided notice for the public meeting before the design review process had been completed. This was a potential problem because the bylaw stated that notice of the public meeting had to be issued after the review process was finished. The Condo therefore argued that the City had failed to follow the procedures set out in its bylaw.

The Commission concluded that, while the City made an error, it was not material to the outcome. The plans approved by the design reviewer were found by the Commission to be substantially similar to the plans presented by the developer at the public meeting. Also, the modifications suggested by the design reviewer – and accepted by the developer – did not relate to the complaints raised by the Condo at the public meeting. The Commission therefore found that the error was only technical in nature, and it did not prejudice the meeting process.

II. Conditions recommended by planning staff do not need to be expressly incorporated into the text of the amended bylaw.

Planning staff from the City had recommended approval of the amendment subject to certain conditions, which included obtaining final survey plans, design review approval, and a development agreement. However, the resolution from council approving the amendment did not reference these conditions expressly. The Condo argued that the City was obligated to include these conditions in the actual text of the bylaw amendment.

The Commission disagreed and found no error on the part of the City. The Commission noted that the resolution authorized the Mayor and the CEO to execute the contracts and agreements that were necessary to implement the resolution. The Commission found that this provision was sufficient to give effect to the recommendations made by the City’s planning staff. According to the Commission, the intention of council was to incorporate the conditions proposed by the planning staff into a subsequent development agreement between the City and the developer. The City therefore did not ignore the advice of its planning staff.

III. Determining whether a development satisfies sound planning principles generally requires expert evidence.

The Condo argued that the proposed apartment was not the “best possible development” for the property. In particular, the Condo cited health and safety concerns, including concerns about parking, the proximity of the development to the Condo, and the impact on density in the area. In support of its argument, the Condo called four witnesses at the hearing. However, none of its witnesses had any expertise in planning or development. Rather, the witnesses – all of whom were residents of the Condo – largely expressed their subjective concerns about the health and safety of the proposed development. In response, the City presented evidence from two professional planners.

The Commission did not accept the arguments advanced by the Condo for two main reasons:

• First, the Commission held that the standard upon which to judge a development proposal was not “the best possible development” standard. Rather, the Commission found that, so long a development adheres to “sound planning principles,” its role is not to intervene with discretionary decisions made by a municipality. According to the Commission, holding developers to the standard of “best possible development” would frustrate building activity, maintain the status quo, and diminish the rights of landowners.
• Second, in assessing whether the development satisfied sound planning principles, the Commission preferred the evidence of the City to that presented by the Condo. While the Commission acknowledged the health and safety concerns raised by the residents, it held that more robust evidence was required in order to find that sound planning principles were not satisfied. In particular, the Commission held that it required evidence that a development would violate an applicable law, or a recognized principle of land use planning, before it could overturn a planning decision of the City. By way of example, the Commission noted that this type of evidence may be provided by a police, fire, or security organization. Given that no such evidence was presented by the Condo, the Commission concluded that there was no basis upon which to find that the development did not satisfy sound planning principles.

Lessons for the New Year

Thousands of planning-related decisions are made each year in Prince Edward Island. Only a tiny fraction of those decisions are subject to review by the Commission. When that statistical reality is considered in light of the accessible right of appeal that is granted by the Planning Act², it signals that the provincial land use planning system is working and that the decisions made by our provincial and municipal decision-makers are generally accepted. The Commission, for its part, exercises an oversight function that searches for legal errors and procedural defects. Its decisions therefore serve as guideposts for municipalities, developers and planning professionals as they move forward – together – to use our most precious resource in ways that are principled, efficient, and sustainable.

Our hope is that this summary will also contribute to that objective in some small way. By drawing upon the lessons learned over the last year, decision-makers will not only minimize the risk of an appeal to the Commission, but also contribute to their proven record of making sound planning decisions for the benefit of Prince Edward Island and its residents.

¹ _{Outside the boundaries of incorporated municipalities, planning-related decisions are made by delegates of the Minister of Communities, Land and Environment.}

² _{Generally speaking, any person who is dissatisfied with a planning-related decision can appeal to the Commission.  See Planning Act, R.S.P.E.I. 1988, c. P-8, ss. 28(1) and (1.1).}