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.}