Docket: LA01008
IN THE MATTER of an appeal by Ruth Shea (on behalf of Maureen Ruelas) against a decision of the Minister of Community and Cultural Affairs, dated August 29, 2001.
Order LA01-06BEFORE THE COMMISSION
on Tuesday, the 20th day of November, 2001.
Maurice Rodgerson, Vice-Chair
Norman Gallant, Commissioner
Kathy Kennedy, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses 1. For the AppellantRuth Shea
2. For the Respondent
Don Walters
John White
Reasons for Order
1. IntroductionThis is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Act) by Ruth Shea, on behalf of her daughter Maureen Ruelas, (the Appellant) against a decision of the Minister of Community and Cultural Affairs (the Respondent), dated August 29, 2001 to deny approval of an application to subdivide a lot bordering Route 21 [the Fort Augustus Road] (the lot) from property number 125682 located at Glenfinnan (the subject property).
By Notice of Appeal dated and filed on September 18, 2001 (Exhibit A1), the Appellant appealed this decision to the Island Regulatory and Appeals Commission (the Commission).
Following due public notice and suitable scheduling for the parties, the Commission proceeded to hear this appeal on October 30, 2001.
2. Discussion
The Appellant
The Appellant states that her daughter had originally applied to subdivide a lot from the subject property in 1998. However, she did not complete this process and applied again in 2001. The Appellant was advised by employees at the Respondent's department on two occasions that subdivision would be no problem. As her daughter and son-in-law were only in the Province for three weeks, they hired a surveyor and a backhoe to dig the soil test pits. Their lawyer proceeded to prepare the documents necessary for the purchase of the lot. They then received a letter from the Respondent's department dated August 29, 2001 (Exhibit R1) that informed them that their application for subdivision was denied. Her daughter then returned home to Texas feeling very disappointed.
The Appellant notes that her daughter intended to use the lot for a future seasonal residence. The lot is presently wooded and used to be a shale pit. The lot is on a straight section of the road; therefore the Appellant submits that road access to and from the lot should not present a safety hazard.
In Exhibit A1, the Appellant requests that the Commission approve the subdivision of the lot. The Appellant now acknowledges that she knows that further subdivision of the subject property is not permitted by the Act's Subdivision and Development Regulations as the road that runs by the lot is classified as a collector highway. She submits, however, that the portion of Route 21 that runs by Glenfinnan should not be classified as a collector highway because there is a low volume of traffic and it does not feed into an arterial highway.
The Respondent
The Respondent submitted that Route 21 is designated a collector highway under Schedule B, paragraph (14) of the Roads Act Highway Access Regulations, and therefore, under subsection 25.(3) of the Act's Subdivision and Development Regulations (the Regulations), the lot could not be approved as there was insufficient frontage on the subject property. This regulation, often referred to as the "ten chain rule", permits only one lot to be subdivided for each 660 feet of frontage.
The Respondent noted that in 1998, when there were two applications, each seeking to subdivide a lot from the subject property, the frontage on both sides of the road was added together when the Respondent's staff applied the ten chain rule. One lot was approved in May 1998, while the other lot was approved in July 1998. When the July 1998 lot was approved, it was noted on the July 17, 1998 Pre-Development Inspection Report (Exhibit R6) that this lot "...is the last lot that can be approved".
The Respondent stated that it was unfortunate that the front counter staff advised the Appellant that it would be no problem to subdivide the lot. However, it is a Property Development Officer, not the front counter staff, who reviews the various regulations and drafts the written decision on a subdivision application. Usually applicants will wait for an approval letter from the Respondent before incurring further expenses related to a subdivision of a lot.
The Respondent submits that the Property Development Officer correctly applied the Regulations, the Respondent's decision to deny subdivision approval for the lot should be maintained and therefore the appeal should be denied.
3. Findings
Following a careful and complete consideration of the evidence presented in this matter, and upon review of the applicable law, it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:
Where the subject of an appeal is a decision made by the Minister under the Act's Regulations, as is the case in the present matter, the Commission's jurisdiction on appeal is provided for in subjection 28(1) of the Act, which reads:
28.(1) Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission.
The Commission, as an appellate body, has the power to hear the evidence and arguments presented by the parties and decide whether to allow or dismiss an appeal. The Commission, as a creature of statute, does not have the power to change the law: it must apply the law, as it currently exists.
The following subsection of the Regulations is applicable to this appeal:
25.(3) Along any collector highway
(a) no person shall subdivide a parcel of land unless it is an existing parcel of land, and has a frontage of less than 1,330 feet (405.3 metres), in which case only one lot may be subdivided;
(b) no person shall subdivide two or more lots from a parcel of land unless
(i) it is an existing parcel of land, and has a frontage of 1,330 feet (405.3) metres or more, in which case one lot may be severed in respect of each interval of 660 feet (219.8 metres), or
(ii) a subdivision road is prepared to serve the lots;
Schedule B of the Roads Act Highway Access Regulations provides the following:
SCHEDULE B
COLLECTOR HIGHWAYS
1. The following highways and portions thereof designated as "collector" highways in regulations proclaimed under the Planning Act, on February 3, 1979, are continued as collector highways pursuant to these regulations, with effect from February 3, 1979:
...
(14) Route 21 commencing at the intersection with Route 1 in the Town of Stratford to the intersection with Route 22 in the settlement of Pisquid.
The Commission finds that the law is quite clear in this matter. The subject property and the lot have frontage along Route 21, which has been designated as a collector highway. As indicated on the labeled Geolinc map dated October 29, 2001 (Exhibit R9), the subject property, as a parent parcel, had 655 feet of frontage on each side of Route 21. Lot number 859645 was approved for subdivision on May 15, 1998. Because the Respondent in 1998 considered the total of the frontage of the subject parcel on both sides of Route 21 (1310 feet), Lot number 862003 was approved for subdivision on July 21, 1998.
Given that the relevant portion of Route 21 is designated as a collector highway, the Commission finds the subject property, as a parent parcel, does not have sufficient frontage to permit a third lot to be subdivided. The Commission therefore finds that the Respondent correctly applied the Regulations when the Appellant's application for subdivision of the subject property was denied.
The Commission notes that the Appellant placed great emphasis on the fact that she was assured by the Respondent's staff on two occasions that subdivision approval would be granted. Although the Respondent noted that it is a Development Officer, not counter staff, which reviews the regulations and prepares the decision letter on a subdivision application, the Commission feels that the Respondent's staff should be more careful about making any assurances prior to the actual decision making process. That having been said, the Commission notes that the onus is on an applicant not to proceed until written approval has been granted.
As the Respondent correctly applied the Regulations when the decision was made to deny the Appellant's application to subdivide a lot from parcel number 125682, the appeal is denied.
4. Disposition
An Order denying the appeal will therefore be issued.
Order
WHEREAS Ruth Shea (on behalf of Maureen Ruelas) has appealed an August 29, 2001 decision by the Minister of Community and Cultural Affairs to deny approval of an application to subdivide a lot from property number 125682 in Glenfinnan;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on October 30, 2001 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 appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island, this 20th day of November, 2001.
BY THE COMMISSION:
Maurice Rodgerson, Vice-Chair
Norman Gallant, Commissioner
Kathy Kennedy, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
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:
(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.