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Spite-ridden spa feud lands in the laps of the lawyers

City, spa owner seek to overturn appeal board decision

JIM BELL

Carole Collin continues to serve customers at her home-based business as a legal battle with the City of Iqaluit gets underway. (PHOTO BY SARA MINOGUE)

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Lawyers representing the City of Iqaluit and Iqaluit spa owner Carole Collin took the first steps last week towards overturning a decision issued Feb. 10 by Iqaluit's Development Appeal Board, when Justice Earl Johnson granted each of them legal permission to pursue an appeal.

The appeal board's interpretation of the city's zoning bylaw threatens to put Collin out of business and at the same time, change the way the city regulates home-based businesses. To counter it, the city, and Collin, have each launched court actions aimed at appealing the appeal board.

Johnson's decision means lawyers for the two parties may now go ahead and prepare full-blown appeals to be heard in court later this year. Johnson also gave the appeal board 30 days to find a lawyer, and ordered them to produce a full record of the appeal board's decision.

It's the latest installment in a seesaw battle that began in May of 2004, when Collin opened Carole Satin Care Studio at house 2628 on Nanuq Drive, offering manicures, tanning beds, aromatherapy, therapeutic massages and hair care.

For nearly seven months, few noticed that the business even existed. But all that changed after Collin bought a half-page newspaper advertisement in November to announce a "grand opening."

Suddenly, the presence of her business in a residential neighbourhood spawned a spite-ridden small-town grudge match that's pitted neighbour against neighbour, driven a wedge between city council and the development appeal board, and helped provoke former city councillor Stuart Kennedy into quitting his seat last month.

On Nov. 23, after hearing from angry neighbours who complained that a commercial business shouldn't be operating in a residential area, city council passed a motion giving Collin a development permit subject to certain conditions: a three-vehicle limit on parking, a maximum of two employees, limits on water consumption, and a requirement that the business occupy only 40 square metres of floor space.

But Collin's neighbours in the 2600 area, especially Mike Rizzi and Frank Cunha, weren't satisfied. They submitted an appeal in December to the Iqaluit Development Appeal Board, which is appointed to act as a kind of court of last resort for people who don't like city zoning and planning decisions.

At the time, Coun. Stuart Kennedy served as the appeal board's chair, and Madeline Redfern, Alain Carriere and Natsiq Kango served as members.

After hearing the matter on Jan. 6, the appeal board, in a decision issued Feb. 10, overturned the Nov. 23 council motion.

In doing so, they said the zoning bylaw allows the city to support home-based businesses only when those businesses are related to "the land-based economy" or the "traditional way of life."

They also criticized the city's administration for giving Collin a business licence in May without realizing she also needed a development permit. Her development permit application wasn't granted until the day after the Nov. 23 council meeting.

It also said Collin's business "does not meet the spirit and intent of what was envisioned as a home-based business," and that she appears to be using nearly 70 square meters, not 40, for her business.

In her appeal, however, Collin's lawyer, Doug Stout of Ottawa, alleges that the Iqaluit appeal board made six different errors in law:

• misinterpreting the City of Iqaluit's general plan by concluding that a home-based business can only be approved if it's related to the land-based economy or the traditional way of life;
• failing to consider all relevant policies within the City of Iqaluit's general plan, and relevant regulations;
• considering irrelevant issues: that Collin's business may be in "unfair" competition with similar businesses, or that the business operated for 14 days after getting its development permit;
• accepting unsubstantiated claims as fact;
• failing to consider various submissions that Collin and others made to them;
• failing to make a complete report of its hearing proceedings within 15 days of its decision being rendered.

The City of Iqaluit, which is represented by Yellowknife lawyer Katherine Peterson, is basing its appeal on similar grounds.

After voting to instruct the city's lawyers last month to pursue the appeal, Iqaluit city councillors said they're worried that the appeal board decision might force them to close down many other home-based businesses.

Former city councillor Stuart Kennedy, the only councillor at the time to support the idea of closing Collin's business, cited that council decision when he resigned his council seat last month.

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