Saurette v. Gimli (Rural Municipality), 2016 MBQB 41

JudgeSchulman, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateFebruary 29, 2016
JurisdictionManitoba
Citations2016 MBQB 41;(2016), 327 Man.R.(2d) 216 (QB)

Saurette v. Gimli (2016), 327 Man.R.(2d) 216 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MR.015

Robert Saurette (applicant) v. Rural Municipality of Gimli (respondent)

(CI 14-01-91168; 2016 MBQB 41)

Indexed As: Saurette v. Gimli (Rural Municipality)

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

February 29, 2016.

Summary:

Saurette sought an order under s. 382 of the Municipal Act quashing a Conditional Use Order and a Variation Order made by the Rural Municipality of Gimli (the "R.M."). The orders related to two lots located immediately to the south of Saurette's lot. The issues were firstly, whether Saurette had standing to bring the motion; secondly, whether the R.M. exceeded its jurisdiction in making the orders; thirdly, whether the orders were made in bad faith; and fourthly, whether the orders in question were procedurally fair.

The Manitoba Court of Queen's Bench dismissed the application. The court ruled that Saurette had standing to file the Notice of Application, but that none of his grounds established a jurisdictional error, bad faith or breach of procedural unfairness. Each decision made was within the range of reasonable decisions.

Land Regulation - Topic 2532

Land use control - Zoning bylaws - Variances - When available - Saurette sought an order under s. 382 of the Municipal Act quashing a Conditional Use Order and a Variation Order made by the Rural Municipality of Gimli (the "R.M.") - The orders related to two lots located immediately to the south of Saurette's lot - Saurette argued that there was no evidence that the zoning bylaw had caused injury to the developer sufficient to support the variation or that the variation granted was the minimum modification required to mitigate such injury or hardship as was proved - The Manitoba Court of Queen's Bench stated that "The complaint is based on a consideration of ss. 94(1) and 97(1)(b)(iii) [of the Planning Act] ... Section 94(1) permits a person who believes 'that a zoning bylaw adversely affects his or her property rights' to apply for a variation. ...  Section 97(1) authorizes the R.M. to grant a variation of the provisions of the zoning bylaw with regard to the affected property if the variation 'is the minimum modification ... required to relieve the injurious affect' of the bylaw on the property. There is no evidence that the R.M. failed to consider the effect on the developer's rights. If the R.M. intended to approve a conditional use for 48 family units, it would be obvious that restricting the building to a height of 30 feet would adversely affect the rights of the developer. That the developer modified downward the number of units and the height of the project tends to show that the variation granted was the minimum modification required to relieve the negative effect. In any event, it was the R.M.'s responsibility to assess the situation, and it did that. I find that no jurisdictional ground comes into play. Saurette's challenge is to the reasonableness of the finding, an argument which is proscribed by the Municipal Act" - See  paragraph 25.

Land Regulation - Topic 2533

Land use control - Zoning bylaws - Variances - Procedure - Saurette sought an order under s. 382 of the Municipal Act quashing a Conditional Use Order and a Variation Order made by the Rural Municipality of Gimli (the "R.M.") - The orders related to two lots located immediately to the south of Saurette's lot - Saurette argued that the developer had not filed a complete plan of the proposed development - Saurette was not provided with a copy of the plan, which was acted on at the July 2014 meeting and was not given an opportunity to comment on it before the decisions were made - The Manitoba Court of Queen's Bench stated that "All that the [Eastern Interlake Planning District Development Plan] EIPD required of the developer is a conceptual plan and he filed one along with his application, modified it for the January meeting, modified it for the April meeting and again for the July meeting. Nothing required a final plan from him at this stage. ...  Before a building permit will issue, a development agreement will have to be prepared and signed and a final plan will have to be prepared and approved. I am satisfied that a final plan will be part of that process. Moreover, the last plan involved a reduction in size from the conceptual plans earlier provided to Saurette. ... The change in the conceptual plan reduced the size of the project. I find that there was no need for the R.M. to provide a copy to Saurette or an opportunity to comment on it. Saurette had a reasonable opportunity to address all his issues at the January and April meetings" - See paragraphs 27 to 28.

Land Regulation - Topic 2533

Land use control - Zoning bylaws - Variances - Procedure - Saurette sought an order under s. 382 of the Municipal Act quashing a Conditional Use Order and a Variation Order made by the Rural Municipality of Gimli (the "R.M.") - The orders related to two lots located immediately to the south of Saurette's lot - Saurette argued that it was improper for the R.M. to receive submissions from Ms. Arnason for the developer because she was a board member of the Gimli Community Development Corporation and a member of the Gimli Board of Revision - The Manitoba Court of Queen's Bench stated that "Saurette's challenge to the participation by Ms. Arnason forms part of his bad faith argument and lack of procedural fairness argument. ... The key to a finding of bad faith is an act 'in furtherance of an unauthorized purpose'. It has not been suggested that the R.M. acted in furtherance of an unauthorized purpose. Nor, objectively speaking, can it be found that the R.M. ignored relevant considerations and considered irrelevant considerations. Saurette is displeased with the decisions made but his subjective views were heard by the R.M. whose members reached their conclusions based on what they considered to be relevant considerations. As for the concept of procedural fairness, the R.M. followed all its rules as to notice, timing, providing of information and giving Saurette an opportunity to be heard. Several issues have not been addressed with finality. They will be revisited at a later stage in the process. I find that neither the participation by Ms. Arnason, nor the failure to provide Saurette with the June conceptual plan, nor the failure to accommodate all of Saurette's wishes, nor any of the other circumstances contained in the record, establish a breach of duty of procedural fairness" - See paragraphs 29 to 31.

Land Regulation - Topic 2669.1

Land use control - Zoning bylaws - Permitted uses - Multiple family - Saurette sought an order under s. 382 of the Municipal Act quashing a Conditional Use Order and a Variation Order made by the Rural Municipality of Gimli (the "R.M.") - The orders related to two lots located immediately to the south of Saurette's lot - The Conditional Use Order granted approval to permit "a 'Multi-Family Dwelling' in the 'SRG' Recreation Resort General Zone for the construction of a Multi-Family Residential Complex" - The Variation Order granted approval "to increase the maximum allowed height for a 'Multi-Family Dwelling' from 30' to 45' in the 'SRG' Recreation Resort General Zone for the construction of a Multi-Family Residential Complex ... subject to the height variance being limited to the Condominium Project" identified in the companion Conditional Use Order - Saurette argued that the zoning bylaw did not authorize a conditional use for a condominium on land zoned SRG because such a use was not provided for in the bylaw - He did not dispute the fact that the bylaw provided for a conditional use for multiple family dwellings - The Manitoba Court of Queen's Bench stated that "I find that the word condominium connotes a form of title not a form of use. Saurette deposed to the fact that at one time, the R.M. proposed to amend its zoning bylaw to specify condominiums. That the R.M. did not proceed with a change is not material to an interpretation of the bylaw. The R.M. did not exceed its jurisdiction in providing for multiple family condominium units" - See paragraphs 21 to 22.

Land Regulation - Topic 2680

Land use control - Zoning bylaws - Permitted uses - Conditional uses - Saurette sought an order under s. 382 of the Municipal Act quashing a Conditional Use Order and a Variation Order made by the Rural Municipality of Gimli (the "R.M.") - The orders related to two lots located immediately to the south of Saurette's lot - Saurette argued that the R.M. did not have the jurisdiction to make a variation since the variation sought made a change in land use to a use other than a change that was substantially similar to a use permitted under the zoning bylaw being modified by the variation (Planning Act, s. 97(2)(b)) - The Manitoba Court of Queen's Bench stated that "Saurette's challenge based on s. 97(2) of the Planning Act also fails because the variation did not change the land use of the developer's property. This section has no application to conditional use applications under s. 106" - See paragraph 26.

Land Regulation - Topic 4147

Land use control - Appeals to the courts - Status or standing - Saurette sought an order under s. 382 of the Municipal Act quashing a Conditional Use Order and a Variation Order made by the Rural Municipality of Gimli (the "R.M.") - The orders related to two lots located immediately to the south of Saurette's lot - The R.M. argued that Saurette did not have standing to commence the proceeding - The Manitoba Court of Queen's Bench stated that "Saurette has invoked a statutory remedy under s. 382 of the Municipal Act. The Planning Act, ... gave him the right to notice of hearing as an affected property owner whose property is located within 100 metres of the affected property (s. 169(3)(a)). As Saurette had standing to oppose the enactment of the orders before the R.M., I find that he has standing to challenge the validity of the orders in this Court" - See paragraphs 6 to 8.

Municipal Law - Topic 428

Councils - Decisions of - Duty of fairness - [See second Land Regulation - Topic 2533 ].

Counsel:

Dave G. Hill and Derek M. Olson, for the applicant;

Rod C. Roy, for the respondent.

This application was heard before Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 29, 2016.

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