Order LA03-02 - Docket LA02012 - Planning Appeal - Steven and Elizabeth O'Neil v. City of Summerside (April 30, 2003)

Docket: LA02012
Order LA03-02

IN THE MATTER of an appeal by Steven and Elizabeth O'Neil against a decision of the City of Summerside, dated November 18, 2002.

BEFORE THE COMMISSION

on Wednesday, the 30th day of April, 2003.

Maurice Rodgerson, Vice-Chair
Norman Gallant, Commissioner
Anne Petley, Commissioner

Order

Contents
Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1. For the Appellants:

Elizabeth O'Neil

2. For the Respondent:

Counsel:

Krista MacKay

Witnesses:

Thayne Jenkins
Barry Chappell

Reasons for Order

1.  Introduction

[1] This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Act) by Steven and Elizabeth O'Neil (the Appellants) against a decision by the City of Summerside (the Respondent), dated November 18, 2002 to grant building variances to Mary and Ross Woodside (the Developers).

[2]  The Respondent has authority to issue variances in accordance with the Corporation of The City of Summerside Zoning Bylaw SS-15 (the Bylaw) (Exhibit R25) and The City of Summerside Official Plan 1998.

[3]  The Developer applied to the Respondent for building variances in order to build a 28 foot by 28 foot accessory building (784 square feet) at 118 Gaudet Crescent, property number 504175 (the subject property), in the City of Summerside. The Bylaw permits a maximum size up to 60 square metres (645 square feet) and a maximum height of 4.5 meters (15 feet) for a residential accessory building. The Developer requested that the Respondent grant, for the subject property, the following variances as may be applied for under section 6 of the Bylaw:

An increase in the maximum size of an accessory building from 60 square meters (645 square feet) to 72.8 square meters (784 square feet), amounting to a variance of 21.5%; and

An increase in the maximum height of an accessory building from 4.5 meters (15 feet) to 6.8 meters (22.5 feet), amounting to a variance of 50%.

[4]  The Respondent approved the requested variances from its Bylaw by Resolution dated November 18, 2002 (attached to Exhibit A1).

[5] The Appellants filed their Notice of Appeal (Exhibit A1) with the Island Regulatory and Appeals Commission (the Commission) on November 21, 2002.

[6] The Developers submitted a letter dated December 3, 2002 with attached photographs (Exhibit D1) and later advised Commission staff that they would not attend the hearing.

[7]  After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on March 28, 2003.

2.    Discussion

Appellant's Submissions

[8]  The Appellants submit in their Notice of Appeal (Exhibit A1) that the Respondent's approval of the Developer's request for accessory building size and height variances did not comply with the five part test provided for under section 6.2 of the Respondent's Bylaw. As the proposed accessory building is two stories, the total square footage would exceed 1300 square feet, and therefore the variance on size is over 100%. The building should be built in accordance with the Bylaw as a secondary residence. At the hearing, the Appellants submitted the following:

The Respondent's Technical Service Committee did not discuss the five criteria set out in section 6.2 of the Bylaw.

The Developers had previously indicated to the Appellants that the accessory building was to be used as a garage with an apartment on the second level. Now the Developers are saying that a workshop will be located above the garage.

While the proposed accessory building is not directly in line with the Appellants' view of the water, it will interfere with the view of the water enjoyed by other neighbours.

The Developers should subdivide their property, rather than request a variance which cannot be justified under the criteria set forth in section 6.2 of the Bylaw.

[9]     The Appellants request that "…the permit not be issued for the construction of an "accessory” building…"

Respondent's Submissions

[10]   The Respondent submitted that its Technical Service Committee and Council considered the criteria set forth in section 6.2 of the Bylaw and followed correctly the process required to approve the variances requested by the Developer, and therefore, the Commission should defer to the Respondent's decision. In particular, the Respondent submits the following:

The Respondent's staff had recommended that the variances be denied. The application for the variances proceeded to the Respondent's Technical Service Committee on October 29, 2002 and again on November 7, 2002. While not required for a variance application, the Developer's lawyer and nearby residents were nonetheless given an opportunity to be heard at the October 29 meeting in a similar fashion to a rezoning or discretionary use application. Normally with variance applications public comments are invited by way of a written letter.

All councillors and the mayor were present at the October 29 meeting, and the mayor and all but one councillor were present at the November 7 meeting. The criteria under section 6.2 of the Bylaw were read into the record. There was considerable discussion on the issue. The Respondent submits that section 6.2 requires that the criteria be considered: it does not require that the criteria be discussed or debated.

The Respondent submits that, as a hearing de novo, the Commission may examine the merits of the decision. On the evidence, the application for a variance should be granted. There is more than enough room on the Developers' lot for the accessory building with the sought variances. There is a 15 foot hedge between the Appellant's home and the Developers' property to provide the Appellant with a visual buffer. While the other neighbours do enjoy a view of the water, this is only because a portion of the Developer's very sizeable lot is empty. Neither the neighbours, nor the Appellant, have a legal right to this view, either at common law, or in the Bylaw. Even without the variances, the accessory building would impact on the neighbour's view. If the Developers subdivided their lot, they could build a larger, taller building without requiring a size and height variance.

With respect to the Appellants' concerns as to the calculation of the total square footage of the two floor levels of the accessory building, the definition of "Floor Area" under section 45 of the Bylaw "… means the area of all finished floors of a building, including their surrounding external main walls but excluding any enclosed parking". Thus, as the first floor level will be used for the parking of vehicles, the square footage of the first level of the accessory building is excluded from the floor area calculations.

Further, it is submitted that the criteria in section 6.2 (a) to (e) does justify variances to the area and height of the accessory building. The Developers' lot has the peculiar characteristic of a large lot size which makes it impractical to develop in strict conformity with the Bylaw. Given the large size of the Developer's lot, the variances would not have an undue impact. The photographs submitted in evidence [Exhibits R23 and D1] demonstrate that the Appellants would not suffer an undue impact from the variances.

[11]   Accordingly, the Respondent requests that the Commission deny the appeal.

Developers' Submissions

[12]   While the Developers were not present at the hearing, they filed written submissions dated December 3, 2002 [Exhibit D1] which included various labeled photographs of adjoining properties and the placement of buildings. Some highlights of the Developers' written submission are as follows:

The accessory building would serve as a two car garage with a second story loft for the storage of wood and the use of woodworking tools. This building would not be used as a secondary residence. An existing storage building on the property would be torn down.

The accessory building would not ruin the Appellants' view. With respect to the view of Mrs. Bain, the accessory building would have less impact on her view than an addition to the Developers' home, or a garage connected to the home by a breezeway, either of which would not be limited in size and could have a maximum height of 34.5 feet, rather than the 21.5 feet specified in the variance granted by the Respondent.

When the Appellants' required a variance in 1999 [water setback variance] the Developers did not oppose this request.

The Developers submit that the proposed accessory building is the best of the alternatives they have. From their submissions, it appears that the Developers are requesting that the Commission deny the appeal.

3.    Findings

[13] After a careful review of the evidence, the submissions of the parties, and the applicable law, it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:

[14] Appeals under the Act generally take the form of a hearing de novo before the Commission. In an often cited decision which provides considerable guidance to the Commission, In the matter of Section 14(1) of the Island Regulatory and Appeals Commission Act (Stated Case), [1997] 2 P.E.I.R. 40 (PEISCAD), Mitchell, J.A. states for the Court at page 7:

…it becomes apparent that the Legislature contemplated and intended that appeals under the Planning Act would take the form of a hearing de novo after which IRAC, if it so decided, could substitute its decision for the one appealed. The findings of the person or body appealed from are irrelevant. IRAC must hear and decide the matter anew as if it were the original decision-maker.

[15] In previous appeals, the Commission has found that it does have the power to substitute its decision for that of the person or body appealed from. Such discretion should be exercised carefully. The Commission ought not to interfere with a decision merely because it disagrees with the end result. However, if the person or body appealed from did not follow the proper procedures or apply sound planning principles in considering an application made under a bylaw made pursuant to the powers conferred by the Act, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

[16] The Commission finds that the above-cited principle, originally applied to decisions concerning building or development permits, applies equally where a decision making body, such as the Respondent, approves an application for variances pursuant to its Bylaw. Thus, a two-part test is invoked:

whether the municipal authority, in this case the Respondent, followed the proper procedures as required in its Bylaw in making a decision to approve the requested variances; and

Whether the proposals for the variances have merit based on sound planning principles.

[17] Section 6.1 of the Bylaw states:

6.1     Application may be made for variances which do not deviate more than 50% from the following standards in this Bylaw:

…

c. Accessory building standards.

  Section 6.2 of the Bylaw states:

6.2   Variance applications shall be considered by Council, Planning Board, or the Development Officer, as applicable, against the following tests for justifying a variance:

a. That the lot in question has peculiar physical conditions, including small lot size, irregular lot shape, or exceptional topographical conditions, which make it impractical to develop in strict conformity with Bylaw standards.

b. That strict application of all Bylaw standards would impose undue hardship on the applicant by excluding them from the same rights and privileges for reasonable use of their lot as enjoyed by other persons in the same zone.

c. That the variance is of the least magnitude required to enable reasonable use of the lot.

d. That any hardship cited by the applicant has not been created by some action of the applicant or the property owner, or cannot be remedied reasonably in some other manner.

e. That the proposed variance would not impact unduly on the enjoyment of adjacent properties, or on the essential character of the surrounding neighborhood, including taking into consideration any comments from neighbors.

[18] The key question with respect to the first part of the Commission's test is to determine whether the Respondent considered the variance application against the five tests for justifying a variance noted in section 6.2.

[19] The Commission notes that the minutes (Exhibits R1 and R2) reveal that the variances at issue in this appeal were discussed in considerable detail at both the October 29, 2002 and November 7, 2002 meetings of the Respondent's Technical Services Committee / Planning Board (the Committee). The Respondent's mayor and all councillors were present at the October 29, 2002 meeting, and the mayor and all but one councillor were present at the November 7, 2002 meeting. The criteria for considering a variance are included in the minutes for the November 7, 2002 meeting. The Committee recommended the approval of the variances.

[20]  At the November 18, 2002 monthly meeting of the Respondent's Council, the minutes (Exhibit R3) reflect that the Committee had recommended approval of the variances. The criteria for considering a variance were read into the record, forming part of the resolution voted on by Council.

[21] Councillor Chappell testified at the hearing that he felt that he had considered the criteria prior to voting on the resolution.

[22] The Commission finds that the Respondent's Bylaw does not demand a point by point debate of the criteria. Rather, it requires that the criteria be considered.

[23]  Accordingly, the Commission finds that Respondent correctly followed the procedures set forth in its Bylaw with respect to granting the variances in this matter.

[24] With respect to the second part of the Commission's test, "whether the proposals for the variances have merit based on sound planning principles", the Commission usually reviews expert testimony before making a determination in this regard. The Commission has had the benefit of the testimony of Mr. Jenkins, the Respondent's Development Officer, who has an extensive background in planning matters. While the Respondent's staff had recommended that the variances be denied, as staff believed the criteria had not been met, there was no expert testimony before the Commission which would call into question the soundness of the proposed variances from a planning perspective.

[25] Accordingly, the Commission finds that the Respondent has met the Commission's test set out in paragraphs [15] and [16] above, and therefore, the appeal is denied.

4. Disposition

[26] An order denying the appeal will therefore be issued.

Order

WHEREAS Stephen and Elizabeth O'Neil have appealed a decision made by the City of Summerside, dated November 18, 2002;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on March 28, 2003 after suitable scheduling for the parties and 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 30th day of April, 2003.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Norman Gallant, Commissioner

Anne Petley, 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.