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Docket LA19012
Order LA20-03

IN THE MATTER of an appeal by The PEI Energy Corporation of the August 27th, 2019 decision of the Rural Municipality of Eastern Kings for the approval of a Development Permit for Jeff Klein.

BEFORE THE COMMISSION ON Tuesday, October 6, 2020.

J. Scott MacKenzie, Q.C. Chair

M. Douglas Clow, Vice-Chair

Erin T. Mitchell, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

Overview

Decision

Background

The Development Permit

The Issues

Analysis

Relationship between the Energy Corporation and the Municipality

Conclusion 

Order

Appearances & Witnesses

1.  For the Appellant, The PEI Energy Corporation

Counsel:
J. Gordon MacKay, Q.C., Carr, Stevenson & MacKay
Susan Johnston

Witnesses:
Spencer Long
Jacques Paynter

2.  For the Respondent, Rural Muncipality of Eastern Kings

Counsel:
Hillary Newman, Stewart McKelvey

Witnesses:
Ronald Coffin

3. For the Developer, Jeffrey Klein

Counsel:
Lynn Murray, Q.C. Key Murray
Iain McCarvill, Article Clerk

Witnesses:
Jeffrey Klein

Reasons for Order

Overview

1.  On August 27, 2019, the Rural Municipality of Eastern Kings (the "Municipality") granted Jeffrey Klein ("Mr. Klein") a development permit ("Development Permit") for his property located at 4446 East Point Road, PID#819854 (the "Property").

2.  The Prince Edward Island Energy Corporation (the "Energy Corporation") appealed the decision of the Municipality to grant the Development Permit, alleging that the Municipality failed to follow proper procedure in granting Mr. Klein's application. The impact of having granted the Development Permit significantly impacts on the planned construction of a windfarm development within the boundaries of the Municipality (the "Project"), as the Property is contiguous with, or in the area of, the proposed site of the Project.

3.  This matter was heard over the course of two days on February 18 and 19, 2020. Post-hearing submissions were filed by the parties from February to April, 2020. Written submissions were completed and filed with the Commission on April 6, 2020.

Decision

4.  The Commission allows the appeal and hereby quashes the Development Permit issued by the Municipality to Mr. Klein, dated August 27, 2019.

Background

5.  The Energy Corporation made a presentation on May 14, 2019, to the Municipality's Council and on June 10, 2019, submitted to the Municipality a preliminary special development permit application with respect to the Project. Mr. Klein's property borders on some of the lands which the Energy Corporation intends to use for the Project.2 

6.  On August 27, 2019, Mr. Klein filed a development permit application (the "Application") with the Municipality. He proposed to build a 50-foot by 20-foot structure comprising 1,000 sq. ft., located at the rear of the Property (the "Development"). On that day, Mr. Klein met with the Municipality's (then) Chief Administrative Officer and Development Officer, Ronald Coffin ("Mr. Coffin"). The meeting lasted approximately 45 minutes to one hour. 

7.  The Application was approved that same day by Mr. Coffin and he issued the Development Permit that allows for a "New building - 1000 sq. ft." to be constructed on the Property.3 The Development Permit states, in part:

Permission is hereby granted to Jeff Klein applicant thereof, to start work on the following buildings:

New Building - 1000 sq. ft.

Parcel no (819854-000) 4446 East Point Rd, East Point, according to the plans and information submitted, and by me tentatively approved, subject to compliance with the provisions of all Regulations/Bylaws governing and affecting the development. And further subject to receipt of Sewage report.

8.  On August 30, 2019, Mr. Coffin posted public notice of the Development Permit approval on the Prince Edward Island Planning Decisions website. However, the "details" section described the approval as being for a "Residential 1000 sq. ft. Dwelling", not a "New Building-1,000 sq. ft." as provided in the Development Permit.

9.  On or around September 16, 2019, Mr. Coffin4 altered the "details" section description of the Development Permit approval on the PEI Planning Decisions website to read "1000 sq. ft. sleeping cabin no well no sewer / not a defined dwelling".5 

10.  Spencer Long ("Mr. Long") is an engineer with the Energy Corporation.  Mr. Long was called to describe the Project and to review the proposed placement of wind turbines and the set-backs of a turbine from dwellings in the area.6  

11.  Mr. Long described the timeline of events with respect to the Development Application, as set out in the written document that was submitted into evidence.7  He stated the first knowledge that the Energy Corporation had of the Development Permit was on September 6, 2019, when he learned of it while at the offices of the Municipality.

12.  On September 10, 2019, Mr. Long made a second visit to the Municipality looking for more information on the Development.  He noted a lack of clarity on what was being proposed.  He then emailed Mr. Coffin regarding the Development Permit issued to Mr. Klein and requested a complete copy of the Application:

Sorry to bug you again Ron. I just let the team know about the site plan below and it has some pretty serious impacts on our ability to build in that eastern part of the dev (sic) area. We will need to discuss further and figure out what our options are - can you send me the complete application so I've got all the information.8

13.  Mr. Long states that on September 11, 2019, he first saw the PEI Planning Decision's website which read that the Development was for a "residential 1,000 sq. ft. dwelling".

14.  On September 13, 2019, Heather Macleod, Director, Energy Policy and Assets for the Energy Corporation emailed Mr. Coffin. She thanked him for "taking the time to meet today" and provided notes that she compiled from the meeting. The notes, included in the email, state in part:

Development Permit for PID#819854:

-PEIEC requested copy of application (received)

-Discussion regarding "dwelling"; PEIEC and EK CAO agree that this application is not for a dwelling, thus municipal setbacks of 1000m from wind turbine to a residence do not apply to this proposed structure.

-EK CAO to update PEI Permits website to clarify that this is not a residence, nor a dwelling.

-PEIEC notes that some wetland was found in neighboring properties to this PID during field studies' may wish to contact Dept of Environment to seek confirmation that none in the area for proposed driveway or structure.9

15.  On September 16, 2019, Mr. Coffin emailed Mr. Klein. He advised Mr. Klein that there were a "couple of things" within the Application which were not necessarily consistent with the description of the "sleeping cabin" and that a site survey plan may be needed.10 

16.  On September 17, 2019, Mr. Coffin again emailed Mr. Klein and requested that he file an amended Application. Mr. Coffin identified a number of issues "for clarification" on the application, stating in part:11

you (sic) are actually required to provide the approved application for your access as in #3 Highway Access, so your permit would be conditional on that issue.

Your application under #4 you actually inserted a wod (sic) that is not part of the application " ‘Dwelling', that's not a part of our application and unfortunately is actually a defined word, so it voids the application

the building that you are proposing as identified in #4 you have marked as residential single family. That's actually not possible our bylaws 5(20) only allow one main building on any residential lot. I think we need to amend the application to

As a Sleeping Cabin/Bunkie in #5 we should have is marked as a Structure, 50x20=1000

If it's possible on your site drawing to indicate general slope of land as in #9 (3)

17. On September 19, 2019, the Energy Corporation filed this appeal with the Commission.

The Development Permit

18. To decide this matter, it is necessary to understand the full context and circumstances in which Mr. Coffin approved Mr. Klein's Application for the Development Permit.

19.  Mr. Coffin testified that he was the Chief Administrative Officer and Land Development Officer for the Municipality.  He was first hired in September of 2018 and he continued in that combined position until August 30, 2019 when he ceased being the Chief Administrative Officer and continued only in the capacity of Land Development Officer.  He left the employ of the Municipality on December 20, 2019.  As of January 6, 2020, he had commenced a new job as the Chief Administrative Officer for the Rural Municipality of Victoria, Prince Edward Island.

20.  Mr. Coffin testified that prior to his employment with the Municipality he had not received any training or had any experience in land use planning or development.  Notwithstanding this, in his combined job role he was responsible for assessing and issuing development permits for the Municipality.  After he commenced his employment with the Municipality he was not provided with any training in land use planning or development.

21.  Mr. Coffin stated that he was aware of the Project, but he was not aware whether the construction was going to be on lands that were contiguous with, or in the area of, the Property.  He stated that when he looked at the Application, he believed that required him to only consider the set-back and other requirements on the Property.  He did not consider other neighbouring properties.  It did not occur to him that he should look beyond the Property to see what types of developments were on those properties or were planned.  He stated it just didn't cross his mind at the time. 

22.  Mr. Klein stated that he was not in Prince Edward Island in the spring of 2019 when the Energy Corporation made presentations to the public about the Project, but he was informed by his neighbours that a wind farm was in the works.  In his view, it was "being moved at (sic) aggressively by the Minister" and his neighbours advised him that "it's a done deal".

23.  Mr. Klein stated that he had received a letter from the Energy Corporation requesting that he grant an option for the provision of an easement over his property for the construction of wind turbines, or as he referred to them, windmills.12   On July 17, 2019 Mr. Klein provided a response to the Energy Corporation13advising that he was reserving all rights to his land for additional residential housing.  He stated that he had no further contact with the Energy Corporation.

24.  Mr. Klein stated he arrived on Prince Edward Island on or about August 9, 2019 and gathered information from friends and neighbours about what was happening and "having these gargantuan windmills driven down our throats".

25.  Mr. Klein and Mr. Coffin met on the morning of August 27, 2019, for forty-five minutes to an hour, during which meeting Mr. Klein submitted his Application for the Development Permit and paid the associated fee. The application form stated that Mr. Klein was applying for a new, single family, one story, 1000 sq.ft. dwelling, to be located near the back of his parcel. The term "dwelling" was typed onto the form by Mr. Klein, and did not appear on the Municipality's application template. The Application stated that the estimated cost of the project was $100,000, and that the intention was for the Development to be serviced by a compost toilet and a water tank. The Application for the Development Permit was accompanied only by a sketch of the placement of the structure on the property and photographs of the type of structure Mr. Klein was proposing. 

26.  Mr. Klein stated that the estimated $100,000 construction cost figure based on $100/square foot was in his mind just "a ball park seat of the pants number".  He stated that in his mind he was building a dwelling - a single family residence.  He stated that it was his intent to install kitchen and bathroom facilities, but he did not think that these facilities would require a permanent electricity hook-up.  He was going to talk to further experts to see what he needed to do, but felt that a generator, rather than permanent power lines being run to the structure, would suffice and he would rely on what the experts advised.  He stated that if power lines would have to be built, then the project would cost more money than the estimated cost on the Application.

27.  Mr. Klein spoke to a local contractor to find out what the cost would be to construct a road from the highway to the proposed structure " the distance of nearly a mile.  He was told that this would cost approximately $10,000, but no firm price was obtained.  He acknowledged that this cost was not included in the estimate on the Application.  Mr. Klein stated that he did not have a firm estimate for this road construction.

28.  Mr. Coffin advised that the process that he followed for this Application by Mr. Klein for development was similar to applications he had dealt with in the past.  He testified that he had processed approximately 30 development applications while he was working for the Municipality and that most of these applications did not require approval by the Municipality's council ("Council").  He stated that he had been granted power to issue development permits without obtaining any further approval from Council.  He stated that he normally reviewed the Municipality's Subdivision & Development Control Bylaw (the "Bylaw(s)") and if the development was within the Bylaw requirements, then he would issue the development permit. However, he did state that in the case of Mr. Klein's Application, he did not review the Bylaws prior to issuing the Development Permit.

29.  At the conclusion of their meeting on August 27, 2019, Mr. Klein departed, Development Permit in hand. 

30.  Mr. Klein stated that over approximately a twenty-year period he dealt with four different development officers at the Municipality, the last being Mr. Coffin.  He made applications for building permits for a house on the water side parcel of his Property and in 2007-2008 to subdivide those lands and build another home, which he refers to as the guest house.  Mr. Klein provided photographs of these homes.  They are architect-designed well appointed homes costing hundreds of dollars per square foot to construct. Mr. Klein stated that the application process that was followed by the Municipality for this Development was the same process as used in the past and he recalls getting both the permits for his main house and the guest house on the same day that he made application for the building permits.

31.  Mr. Klein and Mr. Coffin diverge in their understanding of what was applied for and what was ultimately approved. When questioned in detail as to what Mr. Klein applied for, Mr. Coffin stated that he was advised by Mr. Klein that he was applying for this development permit so that he could build a sleeping cabin in the woods for his children to use when they came to PEI.  The cabin was to be built at the very back of his property.  Mr. Coffin stated Mr. Klein talked about what the cabin would look like and showed him pictures of a type of sleeping cabin that he had found in another area of Prince Edward Island.  The cabin was not to have a foundation, but was to be built on pillars or posts and that it was essentially to be a framed up structure covered with wood siding or plywood.  This was in keeping with the pictures of the example property that Mr. Klein had attached to his Application.

32.  Mr. Coffin testified that he did not notice that the word "dwelling" had been typed on the application form by Mr. Klein at the time that the Development Permit was issued.  Mr. Coffin stated this was significant because a "dwelling" is specifically defined in their Bylaws. He stated that when he was discussing what was intended to be developed on the property that Mr. Klein did not talk about it being a dwelling.  He stated that Mr. Klein described it as a cabin at the back of the woods for his family.

33.  In contrast, Mr. Klein testified that he typed the word "dwelling" on the Application.  He told Mr. Coffin that he wanted to build a "house in the woods" for family and friends.  He came up with an example of a structure that had been built at Rock Barra, PEI, and he provided photographs of that structure along with his Application.  He stated that he advised Mr. Coffin that he was using a construction cost amount of approximately $100 per square foot.  He thought that the property could also perhaps be used as an Airbnb, but knew that this would need to ensure that the property was brought up to the right standards. Mr. Klein acknowledged that at some point Mr. Coffin mentioned that it appeared that Mr. Klein was building a "bunkie", but he did not know what that was. He remained adamant in his direct evidence and on cross-examination that his intention was to build a dwelling " and he believed the Development Permit allowed him to do so.

34.  The Development Permit, however, did not state that he was receiving a permit for a dwelling - single family residence.  The Development Permit merely stated "New Building - 1,000 square feet".  Mr. Klein apparently did not question why he was receiving a development permit for a "New Building - 1,000 square feet" when he maintains he was applying for a "dwelling" " single family residence.

35.  Mr. Klein stated that he next heard about this matter two and a half weeks later when Mr. Coffin contacted him, advising that he was reviewing his permits and he wanted Mr. Klein to come in to discuss his Development Permit.

36.  As described above, a number of emails were sent back and forth. On September 16, 2019, Mr. Coffin sent an email to Mr. Klein suggesting that his application be strengthened by outlining items that needed to be attended to and also noting that, in Mr. Coffin's view, he could not have a second single family dwelling on the same parcel of land that Mr. Klein's main home was built.  He stated that he sent this email after it was pointed out to him by the Energy Corporation that there were a number of concerns with the Development that should be reviewed by Mr. Coffin. 

37.  Mr. Coffin stated that it was after this contact that Mr. Coffin realized the Application and the Development Permit were not reflective of what was going to be built on the property.  He maintained that in his review, he missed the fact that "dwelling" had been typed in on the Application by Mr. Klein.  Mr. Coffin maintained that he viewed this as only being a structure that would be used as a sleeping cabin and that that was all that Mr. Klein had spoken about in their meeting.  He also noted that the photos of the cabin that were used to provide an example of what was to be built were that of a cabin only, and not a dwelling.

38.  On September 17, 2019, Mr. Coffin sent another email to Mr. Klein.14  He wanted Mr. Klein to amend the Application to make it certain that the Application was made for a sleeping cabin and that the Development Permit would be issued for that purpose, not for a single family residence, as there was already one on the Property.  Mr. Coffin noted that a "dwelling", as defined in the Bylaws, is a house that requires a kitchen and a bathroom; it is not just a sleeping cabin. 

39.  There was also a question raised regarding highway access, and whether approval from the province of Prince Edward Island was necessary. Mr. Coffin said that it was not clear when he spoke to Mr. Klein whether or not highway access permission would have to be obtained.  There was some discussion that Mr. Klein may use an access on his own property or seek permission to use a neighbour's property to access the Property. It has subsequently been determined that highway access permission is not required from the province of Prince Edward Island.15

40.  Mr. Klein stated that he did not understand what was going on and he was concerned he was being asked to amend his Application.  On September 19, 2019, when the appeal was filed by the Energy Corporation, Mr. Klein stopped any further contact with Mr. Coffin or the Municipality.

41.  Mr. Klein stated that he was moving on this Application to build a residential dwelling on his land as he felt that the wind farm that was being proposed might preclude his use of a portion of his lands.  He was concerned that the Energy Corporation was looking for carte blanche access to his property and that he would lose control over a 50-acre portion of his lands.

42.  Mr. Klein stated that he did not know how his Development would impact the wind farm Project.  He thought it might impact one or two windmills, which he said would be good for him.  He stated he did not have any clue that building on that portion of his land would affect four of the windmills that were proposed.  He now knows that it could.

The Issues

43.  The Energy Corporation argues that the Municipality failed to follow the procedure set out in its Official Plan and the Bylaw,16 and failed to employ sound planning principles in evaluating the Application. 

Alleged Procedural Deficiencies

44.  The Commission has distilled the Energy Corporation's submissions and identified what it understands to be five procedural errors that the Energy Corporation believes are fatal to the Application and Development Permit.

45.   First, the Energy Corporation argues that the Municipality approved an application that was non-compliant with its standard application form, contrary to section 2.5 of the Bylaw.17  In support of this submission, the Energy Corporation argues that Mr. Klein inserted the word "dwelling" on his application form, thereby voiding the Application.18

46.   Second, the Energy Corporation argues that the Development was approved without proof that an entrance way permit under the Roads Act Highway Access Regulations was applied for or obtained, which the Energy Corporation states is contrary to section 5.9 of the Bylaw.19

47.  Third, the Energy Corporation argues that Mr. Klein failed to indicate the existing and proposed grade elevations or surface water runoff patterns vis-à-vis adjoining lots, contrary to section 5.12 of the Bylaw. The Energy Corporation also argues that Mr. Klein was required to and did not show a plan for adequate landscaping.20 

48.  Fourth, the Energy Corporation states that the Development would result in a second building on the Property, which is a single residential lot, contrary to section 5.20 of the Bylaw.21

49.  Fifth, the Energy Corporation argues that the Municipality failed to follow the law in accepting the Application, even though "the intended purpose of the proposed development was not clear on the application".22

The Municipality's position

50.  In a departure from the usual course before the Commission, the Municipality concedes a number of procedural deficiencies with the Municipality's processing of the Application. 

51.  In sum, the Municipality adopts, by and large, the arguments of the Energy Corporation, going so far as to admit that its Development Officer, Mr. Coffin, was inexperienced and had no expertise in planning matters.

52.  The Municipality "concedes that proper process and procedure as required in the Bylaw was not followed" in processing the Application and deciding to issue the permit. The Municipality states that the Application was processed "without a clear idea of what type of structure was applied for" and that it was not clear exactly what Mr. Klein was authorized to build, noting that "building" is not a defined term in the Municipality's own Bylaw.23  The Municipality also adopts the argument of the Energy Corporation that the application did not meet the requirements of sections 2.7.2 of the Bylaw in that the sketch included with the Application did not show required grade elevations or the building height.24

No Merit Based on Sound Planning Principles

53.  The Energy Corporation also submits that the Development does not have merit based on sound planning principles.25

54.  The Energy Corporation argues that the Municipality was required to consider not only the Application, but also the "broader implications of approving the permit" and the potential negative impact on the Project. The thrust of this argument is set out in the Energy Corporation's written submissions26 as follows:

The Energy Corporation submits that before Mr. Klein's permit was approved, Council should have considered the Energy Corporation's Special Development Permit Application and the implications for the Energy Corporation's proposed project if Mr. Klein's application for a Development Permit was approved. The Energy Corporation submits that this was not done, and therefore, the decision of Council to approve Mr. Klein's Permit was not a decision that had merit based on sound planning principles.

55.  The Energy Corporation also suggests that by not consulting a land use planner, the Municipality failed to make their decision based on sound planning principles.

56.  In support of its position on sound planning principles, the Energy Corporation retained Jacques Paynter, FEC, P.Eng. ("Paynter") of Wood Environment & Infrastructure Solutions. Paynter prepared a written report opining on whether the Development met sound planning principles. Paynter was called at the hearing and cross-examined by opposing counsel. In his opinion, the Development did not meet sound planning principles. Paynter opined that it was "highly unusual" for a development application for a single-family dwelling to be processed in a single business day;27 the Application and Development Permit did not comply with the Bylaw;28 and the permit should not have been issued without more detailed information being solicited from Mr. Klein.29

57.  The Energy Corporation also suggests that by not consulting a land use planner, the Municipality failed to make its decision based on sound planning principles. 

Analysis

Alleged Procedural Deficiencies

i) Altering the Application Form

58.  The Energy Corporation argues that the Municipality approved an application that was non-compliant with its standard application form, contrary to section 2.5 of the Bylaw30 and that by inserting "dwelling" on his application form, he voided it. It is notable that the Energy Corporation did not cite any authorities to support this conclusion.

59.  Mr. Klein argues that a minor divergence, in and of itself, does not void a Development Permit application.31

60.  The Commission agrees with Mr. Klein and finds that the mere inclusion of the word "dwelling" on the Application cannot and does not void the Application.

ii) Entrance way permit

61.  The Energy Corporation argues that the Development was approved without proof that an entrance way permit under the Roads Act Highway Access Regulations was applied for or obtained, which the Energy Corporation states is contrary to section 5.9 of the Bylaw.32

62.   Mr. Klein did not provide with his Application any such proof. The Application provides that the Development requires a new or relocated access driveway.  The evidence of Mr. Coffin was this was not certain and that there were more discussions at the time that Mr. Klein may use an existing access and may, in fact, intend to use an access on the neighbouring property.

63.   Mr. Klein submits that an entranceway permit is not a precondition to getting an approval of a development permit. He submits that it is only where an entranceway permit is required that an issuance of such a permit is a precondition for the approval of a development permit.  Mr. Klein, rightly, points out that this is precisely the wording of section 5.9 of the Bylaw.  In addition, Mr. Klein rightly points out that an entranceway permit was not required, as noted in the email from Kevin Campbell, Manager of Traffic Operations with the PEI Department of Transportation, Infrastructure and Energy, wherein he states

Route 16, East Point Road is classed as a C-1 local highway and as such, any entrance way entering this class of highway does not need an Entrance Way Permit, just has to meet sight distance requirements for the class of road.33

64. The Commission agrees with the submission of Mr. Klein that, as it turns out, the access that he was proposing is not one that requires an entranceway permit.  However, this was not known at the time of the filing of the Application and was not determined until February 14, 2020, nearly six months after the Application was submitted.  The Commission finds that, as the Application indicated that a new access driveway or relocation of an existing access driveway was required, the Development Permit should not have been issued until it was known whether or not an entranceway permit was required.  This was a procedural error in the processing of the Application and the issuance of the Development Permit.

iii) Grade Elevations, Landscaping and Surface Water Run-off

65.  The Energy Corporation maintains that Mr. Klein failed to include in his Application the proposed grade elevations or surface run-off patterns vis-à-vis adjoining properties, contrary to section 5.12 of the Bylaw. 

66.  Section 2.7.2 of the Bylaw sets out the requirements of the sketch or site plan that must accompany every application for a development permit, as follows:

2.7.2 Every application for a development permit shall be accompanied by a sketch or site plan, drawn to scale and showing:

a) the shape and dimensions of the lot to be used;

b) the existing and proposed grade elevations relative to the adjoining property or properties;

c) the distance from the lot boundaries, dimension, and height of the building or structure proposed to be erected;

d) the distance from the lot boundaries and size of every building or structure already erected on the lot and the general location of the buildings on abutting lots;

e) the proposed location and dimension of any well, sewerage systems, parking space, loading space, driveway, and landscaped area on the subject lot as well as within a minimum of 30m on abutting lots;

f) the proposed use of the lot and any building or structure; and

g) any other information the Development Officer deems necessary to determine whether or not the proposed development conforms to the requirements of this Bylaw.

67.  "Site plan" is defined in the Bylaw34 to mean a plan drawn to a suitable engineering scale showing "details of existing and proposed features on a parcel of land" that is subject to a development application.

68.  Mr. Klein submits the lack of a site plan is not fatal to the Application and points out that the Bylaw merely states that "no building shall be erected" without first providing the information required in sec. 5.12 of the Bylaw.  Mr. Klein submits that this information does not have to be provided prior to obtaining the Development Permit and can be provided at a later time.  Mr. Klein also points out that the Development Permit states that it is tentatively approved subject to compliance with all of the regulations and bylaws governing the Development.

69. The Commission finds that failure to obtain this information at the time of the Application is a procedural error in the processing of the Application and the issuance of the Development Permit.  The Development Permit itself states that it is tentative.  The evidence of Mr. Coffin and Mr. Klein is contradictory as to whether or not this "Development Permit" is tentative or final.  Mr. Klein maintains that in his view he received a final permit and does not know what "tentatively approved" means.  Mr. Coffin also was uncertain as to the true status of the Development Permit.  In his mind he felt that it was final but subject to compliance to all of the regulations and Bylaws governing and effecting Development.  No requirement was put on Mr. Klein to return to the Municipality to submit the information required under sections 2.72 and 5.12 of the Bylaw.  Mr. Klein's view is that he got what he came for and that is a Development Permit to proceed. 

70.  The Commission agrees that the Municipality erred and did not follow proper procedure by ensuring that the information required by sections 2.72 and 5.12 of the Bylaw was obtained prior to the issuance of the Development Permit.

iv) Single Lot, Multiple Buildings

71. The Energy Corporation argues that the Development would result in a second building on the property contrary to section 5.20 of the Bylaw.

72. The Commission agrees with the submission of Mr. Klein.  It is clear that the Property was originally comprised of two lots naturally subdivided by the East Point Road.  Mr. Klein further subdivided the parcel on the water side of the East Point Road to build his guest house.  The Commission finds that the natural subdivision of the Property by the East Point Road is sufficient and no further subdivision or approval would be required to allow for the Application and issuance of the Development Permit.  The Commission, however, does point out that Mr. Coffin did not know this at the time of the issuance of the Development Permit.  This was a factor that Mr. Coffin should have considered and should have been satisfied was not an issue at the time that he issued the Development Permit.  The Commission finds that this failure to consider this and deal with the matter prior to issuing the Development Permit was a procedural error, albeit one that would not be fatal and, by itself, would not be sufficient to void the Development Permit.

v) Intended Purpose

73. The Energy Corporation asserts that the Application should not have been approved as the intended purpose of the proposed development was not clear on the Application.

74. The Commission agrees, and is left asking itself: what actually did Mr. Klein apply for, and what did the Municipality (via Mr. Coffin) actually approve? The answer, unfortunately, is not clear. And this stems, in the Commission's opinion, from the fact that Mr. Coffin - who the Commission found to be forthright in his testimony - was unsuited to the role of Development Officer. Quite simply, it is not so much each individual error that taints the Development Permit, but the reality that the Municipality and Mr. Klein have entirely different opinions as to what the Permit actually authorizes Mr. Klein to build.

75.  At the hearing, Mr. Coffin testified that although the term "dwelling" was typed on the application form, he did not notice it while processing the Application. He testified that the Development was not a "dwelling", which he states needs a kitchen and bathroom under the Bylaw, but rather a sleeping cabin. On cross-examination, he reiterated his belief that Mr. Klein was applying for a "sleeping bunkie".

76.  Mr. Klein, for his part, was consistent in his evidence that he never asked for a "bunkie". Rather, he testified that it was Mr. Coffin who suggested the Development was a bunkie or sleeping cabin. According to Mr. Klein, it was always intended to be a house. He inserted the term "dwelling" on the application form so that there would be no confusion.

77.  This Commission finds that Mr. Klein's plans for this Development were and are amorphous at best. It is not surprising that there was confusion in the mind of Mr. Coffin about what was going to be built.  Mr. Klein, himself, did not know at the time of applying for the Development Permit what was going to be built.  He had a rough idea and some thoughts, but little investigation or advice had been obtained.  Even at the time of the hearing some six months later, Mr. Klein could still not articulate what he intends to build.  He stated that he is going to discuss with his contractor and other experts, then he will decide what to build.

78. Mr. Coffin says he approved a specific development (a sleeping cabin/bunkie), and Mr. Klein, the developer, is saying he has been approved for another (a residential dwelling). The Development Permit itself approves only a "new building". When all of this is taken together, it is not clear to the Commission what, in fact, was intended to be built and what the Municipality intended to approve.

79. The Commission finds that this Application was not complete, did not satisfy the requirements of the Bylaws, and should not have been issued by the Municipality until Mr. Klein provided a complete application containing all of the requisite information required to allow an informed decision as to whether a development permit should be issued or not.

Sound Planning Principles

80. The Municipality "concedes that the decision to issue the [p]ermit did not have merit based on sound planning principles".35  Relying on the Commission decision in Donna Stringer v. Minister of Communities, Land and Environment,36 the Municipality states that Mr. Coffin did not consider neighboring properties when he issued the permit, that there was no prescribed process for issuing the permit, and that it was unclear "as to what type of development [Klein] was proposing."37

Expert Witness Testimony

81.  As previously stated, the Energy Corporation called Mr. Paynter as an expert witness on the subject of sound planning principles.

82.  Mr. Klein takes issue with the Energy Corporation offering Mr. Paynter as an expert witness. Mr. Klein urges the Commission not to accept Mr. Paynter's report or testimony as expert evidence, or at all. Mr. Klein argues that Mr. Paynter is not independent from the Energy Corporation, having prepared an Environmental Impact Statement for the Project.38 Mr. Klein also notes that Mr. Paynter did not review the Municipality's official plan before preparing his written report, and raised a number of discrepancies between Mr. Paynter's written report and oral testimony before the Commission.39

83. The Commission has reviewed the written report of Mr. Paynter and considered his oral testimony. The Commission has given little weight to his evidence. While Mr. Paynter may have some expertise in land use planning, the Commission did not find his opinion on this appeal to be of much assistance. Mr. Paynter - properly - made a number of admissions on cross-examination by counsel for Mr. Klein, including that he had not reviewed the Municipality's Official Plan prior to preparing his written report. These admissions undermine his conclusions on sound planning principles and the Development generally.

84.  Mr. Klein did not call an expert to opine on whether the Development met sound planning principles.

Did the Municipality employ sound planning principles in approving the Application?

85. The Commission is concerned with the clear lack of consideration of sound planning principles during the course of the Municipality's review of the Application and issuance of the Development Permit.

86. By his own admission, Mr. Coffin has no training or expertise in land use planning. He did not consider development around the Property in assessing the Application. He thought he was approving a "bunkie" and did not even notice that the word "dwelling" - a defined term in the Bylaw - was inserted into the Application. Even without the Municipality's concession that Mr. Coffin erred and the Development does not have merit based on sound planning principles, the Commission simply cannot, in the face of Mr. Coffin's testimony, accept Mr. Klein's contention that sound planning principles are met in this instance.

87.  Mr. Coffin acknowledged that on May 14, 2019, the Energy Corporation did make a presentation with graphics disclosing to the Municipality what was being planned for its Project.  He stated that at the time that he dealt with the Application, he did not know where the Project wind turbines would be placed and he did not cross-reference the two - the Project and the Development.

88.  When asked about whether he ever considered the neighbouring properties when dealing with a development permit application, he stated that he did not normally look outside of the lands being developed, unless the development was near the dunes on the shore as he knew that required ensuring that there were no violations of the environmental laws.

89. The Commission notes that the employment of sound planning principles would most definitely have required Mr. Coffin to look beyond the property upon which a development permit was sought and that they require that a development or planning officer look outside the lands upon which the development is intended.

90.  Mr. Coffin noted that in his role dealing with the Project, he was to bring the documents filed by the Energy Corporation to Council.  He was not providing any advice as a planner or a development officer with respect to the Project.  He was simply the administrator gathering the documents and forwarding them to Council to review.  He stated that something as large as the Project was something that had to go to Council.

91. The Commission previously found in Stringer40 at paragraphs 58 and 64 as follows:

58...This Commission has found, in numerous past decisions, that there must be evidence that a proposed development or change of use is consistent with sound planning principles (Biovectra v. City of Charlottetown, Order LA12-06).  In determining whether or not a development proposal should go forward, the Minister must make an examination beyond the strict conformity with the Regulations and must consider sound planning principles including, but not limited to, the quality of architectural design, compatibility with architectural character of adjacent development, site development principles for the placement of structures and a thorough assessment of whether the development is consistent with sound planning principles (Atlantis Health Spa Ltd. V. City of Charlottetown, Order LA12-02).  

64 Sound planning principles are a guard against arbitrary decision making especially where a regulatory checklist does not address a concern.  Sound planning principles require regulatory compliance but go beyond merely insuring such compliance and require discretion to be exercised in a principled and informed manner.  Sound planning principles require the decision maker to take into consideration the broader implications of their decisions.  In order to ensure that sound planning principles have been followed in anomalous applications a professional land use planner must be consulted.

92. Throughout the Energy Corporation's submissions, both oral and written, is the suggestion that Mr. Klein seeks to develop the Property, at least in part, to frustrate or otherwise impede the Project. The submissions and record make frequent reference to the Project.41  The Energy Corporation urges the Commission to find, as part of its analysis on sound planning principles, that the Municipality erred by failing to consider the impact the Development would have on the Project.

93. The Commission finds that Mr. Klein's view of the Project and any impact that it may have on his motives or subjective intent to plan the Development on his property is irrelevant and of no influence.42  The Commission is not concerned with the subjective intent of a developer.  The Commission is only concerned with whether the Application was processed appropriately and that sound planning principles were followed coming to the determination on that Application and the resultant decision to issue a Development Permit.

94. Mr. Klein makes much of the fact that the process that was used by the Municipality was a similar process that he encountered in two previous building applications.  That may be the case.  However, this Commission cannot condone a process that is so fundamentally flawed that it results in development permits being issued where little or no solid information is provided in the application for the development permit.  This does not comply with the Bylaws, nor any semblance of sound planning.

95.  This Commission has previously voiced its concern with respect to development permits being granted in circumstances where sound planning principles are not followed.  This situation is one that highlights the necessity of the employment of sound planning principles in the assessment of an application.  A decision to issue a development permit where it is not known what is going to be built, the estimate of the cost does not include all of the costs to be incurred, namely, the cost of building a road, installation of electrical, water and septic services cannot be supported.  In addition, no consideration was given to the effect of the Development on surrounding lands and developments, such as the Project, that are proposed on surrounding lands.

96. Land use planning in this province has come a long way in the last 20 years.  The time of incomplete applications receiving approval and building permits being issued with the details being worked out later, or worse, just being implemented by a developer making the decision on their own - has long passed.

97.  This Commission and the courts of this province have stated that this is no longer satisfactory.  Planning and development must be approached in a professional manner, consistent with a process that provides for development permits to be issued only after all pertinent facts and information have been filed with a Municipal decision-maker.  This allows for an informed decision to be made to approve or reject a building permit application and to ensure what is being proposed complies with the Bylaws, the official plan and sound planning principles. 

98. This was not the case with the Application made by Mr. Klein.  The Development Permit was issued upon receipt of an incomplete Application and a forty-five minute to an hour discussion.  Obviously the Application did not receive the appropriate review and consideration and confirms that the approval process was, at best, cursory.  Mr. Coffin testified that in reading the Application and in his meeting with Mr. Klein he was still not sure what Mr. Klein intended to build.  This is not surprising.  Mr. Klein's evidence is that as of the date of the hearing on February 19, 2020, some six months later, he still could not articulate to this Commission, with enough specificity that would be required to issue a building permit, what he intended to build.

99.  If a member of the public, after seeing the public notice on the PEI Planning Decisions website that a New Building-1,000 sq. ft. was to be built asked to review the Municipality's development application file to determine what was being planned for development, then that individual would not be able to discern from the file what was intended to be built by Mr. Klein.  This is precisely the situation in which the Energy Corporation found itself.  A file that has received a building permit should be complete so that any person reviewing it can understand from the file what was applied for and what was approved.  This was not the case.

Relationship between the Energy Corporation and the Municipality

100.  Mr. Klein urges the Commission to view the cases presented by the Energy Corporation and the Municipality as "suspect", based on what Mr. Klein characterizes as the "wholesale adoption by [the Municipality] of [the Energy Corporation's] position on this appeal", inconsistencies in Mr. Coffin's testimony, the "questionable independence" of Paynter, and the alleged failure of the Energy Corporation and the Municipality to address these issues in their written submissions.43

101. There is no question that there has been a significant amount of contact between representatives of the Municipality and the Energy Corporation.

102.  Mr. Long noted that there were bi-weekly and weekly contacts with the Municipality as the Project was large and complicated, and there was need for a great deal of discussion and need for public consultation.

103.  Mr. Long described the process to obtain permission from the Municipality, the Department of Transportation and Infrastructure, the Department of the Environment and the need to solicit and get public feedback.

104. The Commission is not persuaded by the submission that the Energy Corporation was "pulling the strings of Mr. Coffin" or that the Municipality's agreement with the position of the Energy Corporation is suspect.  The Commission finds that the contact made by the Energy Corporation to Mr. Coffin, upon realizing the Development Permit had been issued, was not out of the ordinary.  What is unusual is the fact that Mr. Coffin apparently communicated to the Energy Corporation the precise actions he was going to take to deal with the alleged errors and concerns brought to his attention by the Energy Corporation.  A more experienced development officer would have conducted themselves in a manner that would not have resulted in their objectivity being called into question.

Conclusion

105.  The appeal is allowed and the Development Permit issued by the Municipality to Mr. Klein, dated August 27, 2019, is hereby quashed.

106. The Commission acknowledges that Mr. Klein submitted what he understood to be sufficient material to the Municipality to obtain his Development Permit. The fault, in this case, rests not with Mr. Klein, nor with Mr. Coffin, who acknowledged his lack of planning experience, but with the Municipality, which did not ensure that it employed sufficiently qualified staff to accept, evaluate, and administer development permits pursuant to its Bylaws.

107. The expense and inconvenience caused in this case was entirely avoidable. The Commission recognizes that the Municipality is a small, rural municipality balancing two sophisticated parties (Klein and the Energy Corporation) with competing interests. Municipalities nevertheless have an onus to ensure they have access to the necessary expertise to deal with the issues for which they are responsible. The Commission recommends that all municipalities in Prince Edward Island ensure that they are properly staffed and equipped to perform the functions of a municipality, as required by the Municipal Government Act, R.S.P.E.I. 1988, cap M-12.1. 

Footnotes:

1  Correspondence from L. Murray filed April 6, 2020.
2  Exhibit A-14.
 3  Record,Tab 4.
4  Coffin oral testimony.
5  Exhibit C-1.
6  Exhibit A-2 Tab 9.
 7  Exhibit A-2 Tab 14.
 8  Exhibit A-4.
9  Exhibit D-4.
10 Record, Tab 5.
11 Ibid.
12 Exhibit D-7.
13 Exhibit D-5.
14 Exhibit R-1, Tab 5.
 15 Exhibit D-1. Emails-Kevin Campbell of Government of PEI to Iain McCarvill of Key Murray, February 7th and 14th, 2020
 16 Record, Tab 10.
 17 Section 2.5.1 of the Bylaw states that "any person applying for a permit shall do so on a form prescribed by Council, and shall submit the application to the Community."
 18 Energy Corporation's Written Submission filed February 6, 2020 at pars. 21-26.
19 Energy Corporation's Written Submission filed February 6, 2020 at pars. 27-29.
20 Energy Corporation's Written Submissions filed February 6, 2020 at pars. 30-32.
21 Energy Corporation's Written Submission filed February 6, 2020 at pars. 33-36.
22 Energy Corporation's Written Submission filed February 6, 2020 at par. 39; see also pars. 36-38.
23 Municipality Post-Hearing Submissions filed February 28, 2020 at p.5.
24 Sections 2.7.2.b & and 2.7.2.c.
25 Energy Corporation's Written Submission filed February 6, 2020 at pars. 41-49.
26 Energy Corporation's Written Submission filed February 6, 2020 at par. 46.
27 Energy Corporation Final Written Submission filed February 26, 2020, at par. 52.
28 Energy Corporation Final Written Submission filed February 26, 2020, at par. 53.
29 Energy Corporation Final Written Submission filed February 26, 2020, at par. 54.
30 Section 2.5.1 of the Bylaw states that "any person applying for a permit shall do so on a form prescribed by Council, and shall submit the application to the Community."
 31 Respondent Final Written Submissions filed March 5, 2020 at paras.25-34, citing Cooksville Co. v. York (Township), [1953] OWN 849 (ONHC) at pars.16-17; Triforce Construction Ltd. v. Toronto (City), 1974 CarswellOnt 344 at paras.16-17; and Interpretation Act, RSPEI 1988, c I-8 at s.25(1).
32 Energy Corporation's Written Submission filed February 6, 2020 at pars. 27-29.
33 Exhibit D-1.
34 Bylaw, Schedule B.
 35 Municipality Post-Hearing Submissions filed February 28, 2020, at p.5.
36 Order LA17-06 (August 10, 2017) [Stringer].         
37 Municipality Post-Hearing Submissions filed February 28, 2020, at p.5.
38 Respondent Final Written Submission filed March 5, 2020 at par.12(f).
 39 Respondent Final Written Submission filed March 5, 2020 at par.12.
40 Stringer v. The Minister of Community, Lands and Environment Order LA17-06.
41 For example, the Energy Corporation states that the "Energy Corporation's proposed Wind Farm Project could be negatively impacted by the decision to approve Mr. Klein's Permit". - Energy Corporation Submissions filed February 6, 2020 at par.17.
42 Final written submission of Respondent Klein - Tab 1, pars., 20 & 21.
43 Respondent Final Written Submission filed March 5, 2020 at par.14.  

Order

WHEREAS the Appellant, the PEI Energy Corporation, appealed the decision of the Rural Municipality of Eastern Kings to issue a Development Permit to Jeff Klein, dated August 7, 2019;

AND WHEREAS the Commission heard the appeal at a hearing conducted at Charlottetown, on February 18th and 19th, 2020;

AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order.

NOW THEREFORE pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act,

IT IS ORDERED THAT

1. The Appeal is allowed.

2. Permit No. 17(EKDP17-2019) issued by the Rural Municipality of Eastern Kings to Jeff Klein, dated August 27, 2019, is hereby quashed.

DATED at Charlottetown, Prince Edward Island, this 6th day of October, 2020.

BY THE COMMISSION:

J. Scott MacKenzie, Q.C., Chair

M. Douglas Clow, Vice-Chair

Erin T. Mitchell, Commissioner

Notice:

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:

12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it, or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:

13.(1)   An appeal lies from a decision or order of the Commission to the Court of Appeal upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Court of Appeal within twenty days after the decision or order appealed from and the rules of court respecting appeals apply with the necessary changes.