Jonathan Coady, QC and Michael Fleischmann

Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities and planning professionals in 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 decisions.¹ In 2019, the Commission released three decisions.² In this summary, we will review those decisions and discuss their implications for municipalities and planning professionals in Prince Edward Island.

1. Townhouses are not apartments and may be appropriate in areas adjacent to existing single-family homes.

In LA19-01, a group of dissatisfied residents appealed a decision made by the Rural Municipality of Kinkora (“Kinkora”) to rezone three properties from R3 to R4. Both zones allowed for multiple residences. The R4 zone permitted more than two units on each parcel of land; however, two units was the maximum for a parcel in the R3 zone.

The developer also applied to consolidate three parcels zoned R3 into two parcels zoned R4. The developer wanted to construct a three-unit townhouse on each of the R4 parcels. The Commission, for its part, noted that the amendment being sought would not increase the total number of units that could be constructed. As of right, the developer could build a total of six units on the three existing parcels that were zoned R3.

During its hearing, the Commission heard evidence that the proposed townhouses would only be one storey. This was consistent with the height of nearby single family homes in the R1 zone. The Commission also found that there was an adequate buffer between the existing R1 zone and the proposed development. For these reasons, the development was not found to be out of character for the neighbourhood.

In dismissing the appeal, the Commission distinguished between apartments and townhouses. The residents had relied on a policy contained in the official plan that stated apartments should be located in locations with higher traffic volumes or adjacent to commercial developments and existing apartments. The Commission found that the actual development proposed by the developer was for townhouses and not apartments. The policy relied upon by the residents therefore did not apply.

2. In order to be permitted, a defined use must be specifically listed as a permitted use in the applicable zone.

In LA19-02, a developer appealed a decision by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (“Resort Municipality”) to deny its application for a used car dealership in the C1 zone. The developer argued that the dealership was permitted under the zoning bylaw because “Retails Stores, Service Shops and Personal Service Shops” were permitted in the C1 zone. The Resort Municipality disagreed, finding that the dealership constituted an “Automobile Sales and Service Establishment” under the bylaw and that use was not listed as a permitted use in the C1 zone.

On appeal, the Commission found that the dealership more closely reflected an “Automobile Sales and Service Establishment” rather than a “Retail Store.” The former phrase was defined in the bylaw as a “building or part of a building or a clearly defined space on a lot used for the sale and maintenance of used or new automobiles.” In contrast, a “Retail Store” was defined to mean a “building or structure … in which … things are offered or kept for sale directly to the public at retail.” The used cars that the developer intended to sell would not be inside any building or structure. Rather, the inventory of cars would be placed or maintained in a clearly defined area on the property.

The Commission reasoned that, having specifically defined the phrase “Automobile Sales and Service Establishment” in its bylaw, the Resort Municipality did not intend to include that use in the C1 zone because it was omitted from the list of permitted uses. Given that the use proposed by the developer was defined by the bylaw, but not listed as a permitted use in the C1 zone, the use was not permitted. The appeal was dismissed.

3. Municipalities must deliver a complete record of all relevant documents to the Commission for any appeal.

In LA19-03, the decision by the City of Charlottetown (“Charlottetown”) to amend its zoning bylaw to add an asphalt plant to the list of permitted uses in the M2 zone was appealed to the Commission. After the appeal was filed, Charlottetown filed its record with the Commission. The appellants challenged the completeness of the record and requested additional relevant documents from Charlottetown. For its part, Charlottetown contended that the record filed was complete.

The Commission scheduled a preliminary hearing with the parties. The issue at the hearing was whether or not Charlottetown ought to be required to file additional documents. The appellants were particularly interested in the communications between the developer of the property in question and municipal councillors and employees before the bylaw was amended. According to the appellants, the decision to add an asphalt plant to the list of permitted uses in the M2 zone had been described to the public and council as merely a bylaw amendment. The dispute between the appellants and Charlottetown centred on the relevancy of such documents for the purpose of the appeal.

The Commission noted that its Rules of Practice and Procedure permitted the Commission to obtain information and documents that it considered to be necessary in order to determine an appeal. The Commission also noted that it was not constrained by the rules applicable to court proceedings or limited to evidence that would otherwise be admissible in a courtroom. For these reasons, the Commission embraced a broad interpretation of relevancy. The Commission also observed that, without disclosure, only Charlottetown would know what information was contained in the documents being withheld.

In the end, the Commission was satisfied that the documents being requested by the appellants were relevant to the proper determination of the appeal and had to be produced by Charlottetown. The appropriate weight to be given to those documents, however, would be determined by the Commission at its later hearing on the merits of the appeal.

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 Act,³ 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 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 Agriculture and Land. 

² In 2019, the Commission also mediated a resolution in fifteen other appeals.  In recent years, the Commission has placed additional emphasis on alternative dispute resolution.  This practice has resulted in fewer hearings for the Commission and more timely outcomes for the parties.  When confronted with an appeal, municipalities and planning professionals ought to consider whether mediation with the assistance of the Commission would be beneficial in the circumstances.

³ 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).

This update is intended for general information only. Should you have questions on the above, please contact a Charlottetown member of our Litigation & Alternative Dispute Resolution group.

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