Docket LA99026
Order LA99-08

IN THE MATTER of an appeal by Gordana Jones against a decision by the North Rustico Community Council dated September 21, 1999.

BEFORE THE COMMISSION

on Wednesday, the 10th day of November, 1999.

Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner
James Carragher, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For The Appellant – Gordana Jones

Represented by:
Gordana Jones

2.    For the Respondent – North Rustico Community Council

Legal Counsel:
Jeff Lantz

Witness:
Giles Gallant

3.    For the Developer – Jen Marshall

Legal Counsel:
Graham Stewart

Witness:
Darryl Ford

4.    Members of the Public

Marie Paulowich

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by Gordana Jones (the Appellant) against a decision by the North Rustico Community Council (the Respondent) to approve a development permit. This permit was issued on September 21, 1999 to Jen Marshall (the Developer) to construct a private detached garage on property number 640383 in North Rustico.

The Respondent has authority to issue development permits in accordance with the North Rustico Zoning and Subdivision Bylaws 1994 (the Bylaws) and the North Rustico Official Plan 1994.

The Respondent issued a development permit on September 21, 1999 for a private detached garage which is the subject of this appeal (herein referred to as the original permit). Sometime after this date and prior to the commencement of the hearing before the Commission, the Respondent amended this permit to allow for a breezeway or deck structure to be built between the dwelling and proposed private garage (herein referred to as the amended permit). Although evidence and arguments were presented at the hearing relative to the amended permit, the decision to approve the amended permit was not appealed to the Commission.

The Commission heard the appeal on October 21, 1999 after giving public notice.

2. Discussion

The Appellant

The arguments for the Appellant may be summarized as follows:

The Appellant states her appeal pertains to the permit granted by the Respondent on September 21, 1999 (Exhibit A1) for a detached, private garage.

The Appellant argues that the detached private garage is an accessory structure, and in accordance with Section 4(1)(b) of the Bylaws, there is no provision to allow an accessory structure to be built closer to the street on which the main building fronts than the main building is to the street. In addition, in accordance with the amendment to the Bylaws dated March 1997 (Exhibit A2.3), an accessory building is not to have a floor area greater than 300 square feet or a height of more than 15 feet in an R1A Zone, which includes the lot in question. Further, the Appellant contends that the provisions of Section 17 of the Bylaws have not been met because adequate accurate information was not provided by the Developer in the application and the sketch attached to the application (Exhibit A1).

The Appellant submits that the original permit for the detached garage contravenes the provisions of the Bylaws and requests that the Commission quash the permit and not allow the structure to be built.

On the amended permit which provides for a breezeway joining the two structures, the Appellant takes the position that the proposed breezeway is simply an extension of the existing deck and does not constitute sufficient attachment to conclude that the garage is an attached garage to the dwelling unit. She concludes, as a result, that the amended development fails to meet the provisions of the Bylaws and the proposed garage will still be an accessory building.

The Appellant submits that the change made to the application to include an open, above grade structure (breezeway) was made after the application was filed and approved by Council; a violation of procedure and contrary to good planning principles. She contends an amendment cannot be made to a building permit after approval has been granted.

The Appellant submits that the North Rustico Official Plan states that aesthetics and architectural harmony are important considerations in granting permission to build. She sees the construction proposed in the amended permit as an example of haphazard building and believes it may set an undesirable precedent if allowed.

The Respondent and Developer

The Respondent and Developer take similar positions and contend that the development permit has been approved in compliance with the Bylaws.

In granting the original permit, the Respondent interpreted that the garage, although separate from the dwelling, was not an accessory building and therefore was a permitted use within this zone.

The Respondent contends that because the garage is not an accessory building, the provisions of the Bylaws pertaining to accessory buildings, including Section 4, do not have a bearing on this case. The Developer further submits that the 300 square foot allowance permitted for an accessory building would not allow the storage of two cars (as per the definition of private garage "…storage of one or more vehicles…"), giving further argument that a garage is not an accessory building and Section 4 does not apply.

While acknowledging that the Bylaws do not allow an accessory building to be built closer to the street on which the main building fronts, the Respondent and Developer contend that if it is decided that the garage is detached, it still may be a permissible use under the existing Bylaws. The Respondent and Developer point out that the Marshall lot is a "through lot" with frontage on both Harbourview Drive and Lantern Hill Subdivision Road. They further contend that the Bylaws do not indicate where the house must "front" so it is at the discretion of the homeowner to distinguish between the front and rear of their home. In this case, it is the Developer's position that the house fronts Harbourview Drive and, therefore, the original proposal is not in violation of the Bylaws.

The Respondent states that the original permit was later amended to allow an attachment to join the house with the garage. Both the Respondent and the Developer point out that the Bylaws are deficient as there is no definition of "attached".

The Respondent and Developer contend that the spirit of the amended permit is to remove all doubt that the proposed development complies with the Bylaws. The changes were made in an attempt to address concerns the community-at-large had with the dimensions and setback of the garage, by having the two independent structures became one via a physical union in the form of an open, above grade structure (breezeway) running between them. The Developer contends that the designs presented by the contractor (Exhibits D1 and D2) show that the buildings are part of a unique structure and should be subject to the requirements of the Bylaws for a garage attached to a main building.

The Respondent and Developer take the position that the proposed building is in compliance with the Bylaws and that the appeal should be dismissed.

3. Findings

The Commission has considered the submissions of the parties as well as the evidence filed in this appeal and finds that the original permit to allow a separate detached garage must be quashed as it fails to satisfy the provisions of the Bylaws. The reasons for this decision are as follows.

During the hearing, the Respondent clearly confirmed that the original building permit issued on September 21, 1999, based on the application filed by the Developer on September 13, 1999 was for a detached garage.

According to the Respondent's evidence, it was after the display of public concern for the issuance of the original permit that the permit was amended to allow a breezeway structure to be constructed, running from the proposed private garage to the existing dwelling.

The appeal filed by the Appellant pertains to the original September 21, 1999 permit for a detached garage. No appeal was filed on the amended permit.

The Commission will deal with the original permit first and then address the amended permit as a separate matter.

The Commission knows from the evidence (Exhibit A1) that the original permit was issued for a private garage with dimensions of 28 feet by 20 feet for an overall area of 560 square feet. The side yard setback was 3 feet and the garage was located with access originating off Lantern Hill Subdivision Road. The property in question is lot 11 in the Lantern Hill Subdivision and is located within the R1A Zone or Yellow Zone under the Bylaws.

Upon review and interpretation of the Bylaws, the Commission finds that in accordance with Section 5 of the 1997 amendment creating the R1A Zone, only two buildings are permitted on a lot in this zone – a single family detached dwelling and one accessory building. While the Respondent's interpretation would allow three buildings in the R1A Zone – a single family detached dwelling, a detached garage and an accessory building - the Commission has not found anything in the Bylaws to support this interpretation. The Commission finds that the garage in the original permit is separate and distinct from the dwelling unit (the main building) and is, therefore, a second building on the lot on which only a main building and an accessory building can be located. The garage is therefore clearly an accessory building within the definition contained at Section 20(1) of the Bylaws.

Having determined that the garage is an accessory building, the Commission turned its attention to the provisions governing accessory buildings, specifically Section 5 of the 1997 amendment and Section 4 of the Bylaws. Upon review, the Commission has determined than the proposed accessory building, which will be 560 square feet, is significantly greater that the maximum allowable floor space of 300 square feet for an accessory building and does not, therefore, comply with the Bylaws. It is for this reason that the permit must be quashed.

On the matter debated by the parties as to whether Section 4(1)(b) of the Bylaws has been satisfied, the Commission takes the following position. This Section provides that an accessory building shall not be built closer to a street on which the main building fronts than the main building is to that street. The Commission reviewed the Bylaws with careful attention and finds that although the front lot line and front yard are defined, there appears to be a deficiency in the Bylaws in establishing the direction a dwelling fronts, where the lot involved has frontage on more than one street. In this case, the Commission agrees with the Respondent and Developer that the Bylaws allow for discretion on the part of the property owner as to the street on which the main building fronts. It is the Commission's finding, therefore, that the provisions of Section 4(1)(b) have been satisfied given that the accessory building is not closer to Harbourview Drive than the main building. The lot in question is a through lot with frontage on two streets, with the Developer taking the available position that the main building (dwelling unit) fronts on Harbourview Drive.

The Amended Permit and Other Matters

The Commission recognizes that it has no jurisdiction to decide whether the amended permit complies with the Bylaws, since this permit was not appealed. However, in view of the substantial arguments put forward by all parties on this matter during the hearing, and as possible assistance to the parties, the Commission offers the following comments.

On the matter of the amended permit, the Commission heard evidence from the Respondent that the spirit of this amended permit was to remove all doubt that the proposed garage complied with the Bylaws. Changes were made to the original permit and approved by Council in an attempt to address concerns the community-at-large had with the dimensions and setback of the proposed garage. These changes were based on making the two independent structures one via a physical union in the form of an open, above grade structure (breezeway) running between them.

During the hearing, the Developer presented elevation drawings (Exhibits D1 and D2) showing details of the breezeway which would join the house and the garage. The Developer stated that these drawings were not part of the application submitted to the Respondent, nor were they prepared for review by the Respondent prior to the development permit being granted. The Developer submits that these drawings were prepared for the hearing.

This process brings into question several issues including whether the content of the amended permit complies with the Bylaws, as well as the broader issue of the process followed by the Community Council in approving the amended development permit.

On the first matter of whether this proposed development within the amended permit complies with the Bylaws, the Commission notes that there is no definition of "attached" contained in the Bylaws.

The Developer offered a definition from Black's Law Dictionary .. the physical union of two otherwise independent structures or objects…1

There is no provision in the Bylaws to preclude or prevent this form of development from occurring.

In the absence of any clear guidance or authority in the Bylaws to determine what constitutes "attached", it is possible that the proposed breezeway could be considered a mechanism which allows the dwelling and garage to be attached forming one building. Arguments have been made that the breezeway attaching the garage and dwelling, coupled with the decks and hot tub, combine to form a single living space – albeit indoor and outdoor living space. This appears to have some merit even though it may not be the more conventional style of attachment, where the garage and dwelling have a common wall or some form of attachment with walls and roof.

Given the possibility that the proposed development under the amended permit might satisfy the provisions of the existing Bylaws, the Commission questions the broader form of development that could arise from this approach. To extend this concept to another level – if the addition of a breezeway joining two buildings makes them one building - the Community Council may want to consider the implications associated with making one building by joining a number of buildings via a number of breezeways. The Community Council may not find this possibility acceptable. If not, Council may wish to revisit its Bylaws and carefully clarify what constitutes "attached" and any limitations to this that it feels would best serve the whole Community.

On the issue raised by the Appellant with respect to the Respondent's process of amending the permit after the original permit was issued, the Commission wishes to make the following comments.

While the Commission appreciates the time and effort by Council in administering the business of the Community, we believe it essential that the Council fully understand its' Bylaws and apply them accordingly.

The original permit was issued in error. When the Council determined that there might be problems with the permit, Council should have rescinded the permit and issued a new permit reflecting the changed development. However cumbersome and time consuming this may appear, it is incumbent on Council to follow due process. This will not only be of benefit to Council as administrators of the Community's Bylaws, but also of benefit for the individuals who may choose to develop within the Community and the residents of the Community who must be able to place a high degree of confidence in the Community's administrative functions.

Council must follow due process – however complex this may appear to be. In the case before the Commission, it is understood that the application for a development permit was amended after the original permit was granted. Although this may have seemed to have served to expedite the process, it would appear that the public had no knowledge of the amendments. Council did not require the Developer to file a new application, which one would expect should be required given that the proposed development changed significantly from its original form. In addition, it would appear reasonable that a new permit should have been issued.

In essence, what has happened in this case is that when the permit was amended, it was for a significantly different project – yet the public had no prior knowledge upon which to base a decision as to whether to appeal the decision or not. It is possible that the amended permit might well have satisfied resident concerns and an appeal might not have been brought forth, thereby saving time and expense for all parties.

Further to this matter, when the Commission examined the application for the original development permit, it found that the application appeared to be deficient of required information including an adequate site plan. Although these defects may appear to be "technical", they are significant in that the application specifies certain information, presumably required to allow Council to properly assess an application. If the Community Council feels that this level of information is not required, then the application should be changed.

In conclusion, it is hoped that the parties can work these matters out within the parameters of the Bylaws and for the betterment of the Community as a whole.

4. Disposition

For the reasons stated the Commission quashes the September 21, 1999 permit for the development of a private detached garage.

Order

WHEREAS Gordana Jones, the Appellant has appealed a decision by the Community of North Rustico dated September 21, 1999 ;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on October 21, 1999 after due public notice;

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 development permit issued on September 21, 1999 for the construction of a private detached garage on lot number 11 (parcel number 640383) in the Lantern Hill Subdivision is hereby quashed.

DATED at Charlottetown, Prince Edward Island, this 10th day of November, 1999.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner
James Carragher, 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 Appeal Division of the Supreme Court upon a question of law or jurisdiction.

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

1   Black's Law Dictionary, sixth edition, West Publishing Company, St. Paul, Minn., 1990