Fredericton Heritage Trust Inc. et al. v. Fredericton (City), (1988) 88 N.B.R.(2d) 238 (CA)

• Judge: Stratton, C.J.N.B., Rice and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 27, 1987
• Jurisdiction: New Brunswick
• Citations: (1988), 88 N.B.R.(2d) 238 (CA)

Heritage Trust Inc. v. Fredericton (1988), 88 N.B.R.(2d) 238 (CA);

    88 R.N.-B.(2e) 238; 224 A.P.R. 238

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

City of Fredericton (respondent/appellant) v. Fredericton Heritage Trust Inc. and Penny Ericson, for and on behalf of the residents of the City of Fredericton and Linda L. MacDonald, Ronald Scribner, Emmerson Payne and Harold Hinds (applicants/respondents)

(55/87/CA)

Indexed As: Fredericton Heritage Trust Inc. et al. v. Fredericton (City)

New Brunswick Court of Appeal

Stratton, C.J.N.B., Rice and Ryan, JJ.A.

May 16, 1988.

Summary:

Fredericton city council by resolution authorized execution of agreements granting easements to certain landowners who owned lands touching a former railway line which was zoned as parkland. Fredericton Heritage Trust and a number of citizens applied to quash the resolution and for an injunction or prohibition order to restrain the city from disposing of this disputed land except according to law. The applicants alleged that the resolution constituted a rezoning without a public hearing.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision unreported in this series of reports, allowed the application and quashed the resolution on the ground that it was inconsistent with the zoning bylaw and municipal plan. The city appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Land Regulation - Topic 2160

Land use control - Municipal plan - Enforcement - General - A city council resolved to execute agreements granting easements to landowners owning lands adjacent to parkland - The municipal plan provided that development of the parkland was not to be in consistent therewith - The agreements permitted the landowners to use and occupy the parkland in a manner consistent with the uses already made of the adjacent lands by the landowners - The New Brunswick Court of Appeal affirmed that the agreements constituted a commitment to nonenforcement of the zoning bylaw - The resolution constituted a rezoning without the required public hearing and should be quashed as being inconsistent with the municipal plan and zoning bylaw.

Land Regulation - Topic 2801

Land use control - Exemptions - Nonconforming use - Use not conforming with zoning bylaw - [See Land Regulation - Topic 2160 above].

Municipal Law - Topic 410

Councils - Resolutions - Quashing - Grounds - [See Land Regulation - Topic 2160 above].

Cases Noticed:

Oley v. Fredericton (City) (1984), 50 N.B.R.(2d) 157; 131 A.P.R. 157, refd to. [para. 13].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 27(a) [para. 6]; sect. 74 [para. 13]; sect. 94.1(1) [para. 7].

Fredericton City Charter, S.N.B. 1951, c. 69, sect. 3 [para. 4].

Fredericton Bylaws, Zoning Bylaw #450, sect. 10 [para. 11].

Counsel:

Charles S. Shannon, for the appellant;

John D. Harper, for the respondents.

This appeal was heard before Stratton, C.J.N.B., Rice and Ryan, JJ.A., of the New Brunswick Court of Appeal on October 27, 1987. The decision of the Court of Appeal was delivered on May 16, 1988, by Ryan, J.A.