Order LA05-02 - Docket LA05001 - Planning Appeal - MacEachern v. Community and Cultural Affairs (March 31, 2005)

Docket: LA05001
Order LA05-02

IN THE MATTER of an appeal by Oswald MacEachern of a decision of the Minister of Community and Cultural Affairs dated December 17, 2004.

BEFORE THE COMMISSION

on Thursday, the 31st day of March, 2005.

Brian J. McKenna, Chair
Weston Rose, Commissioner
Kathy Kennedy, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Counsel:
Daniel Rideout

2.   For the Respondent

Don Walters

3.   Members of the Public

J'Nan (Jane A.) Brown
Paul MacKinnon

Reasons for Order

1.  Introduction

[1] This is an appeal filed on January 7, 2005 with the Island Regulatory and Appeals Commission (the Commission) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act) by Oswald MacEachern (the Appellant) concerning a decision of the Minister of Community and Cultural Affairs (the Respondent) on December 17, 2004 to deny an application to subdivide three lots from provincial parcel number 491407 located at Clyde River.

[2] After due public notice, the Commission proceeded to hear the present appeal on February 23, 2005.

2.  Discussion

[3] The Appellant submitted in his Notice of Appeal that the Respondent improperly counted lots that had been subdivided and retained by a previous owner of parcel 491407 when determining "the total number of lots which may be subdivided from all existing parcels", pursuant to subsection 63(5) of the Planning Act Subdivision and Development Regulations (the Regulations). At the hearing, the Appellant submitted written submissions (Exhibit A2) for the Commission's consideration. Appellant's counsel submitted the following points orally at the hearing:

Subsection 63(5) refers to subdividing a parcel owned by a person on the basis of the number of children of the owner. There is no reference to an existing parcel that was owned by a previous owner in relation to how many children the current owner has.

It is not the whole of parcel 491407 that should be examined for this appeal, but only the Appellant's parcel which excludes parcels subdivided by the previous owner. The Appellant's parcel is a separate unit of land from that which was owned by the previous owner.

Subsection 63(5)(a)(iv) discusses the number of parcels that one owner can subdivide from his one parcel of land in relation to how many children that person has.

[4] The Appellant concluded in his written submissions:

Therefore, we submit that since Oswald MacEachern has three children, he is entitled, under subsection 63(5)(a)(iv) to subdivide his land, being part of PID #491407, three times. The activities of a previous owner in subdividing a larger, different parcel of land is not relevant under this section, and therefore cannot be a basis for denying the Appellant's subdivision application as the Respondent has done. [emphasis in the original]

[5] The Appellant requests that the Commission allow the appeal and approve the Appellant's subdivision application.

Respondent's Submission

[6] The Respondent orally submitted the following points for the Commission's consideration:

Section 63 of the Regulations serves to address the problems, including demands for sewer and water services, with respect to fringe development of the areas adjacent to Charlottetown, Summerside, Stratford and Cornwall.

Initially, a moratorium on development was placed in these areas permitting only the subdivision of one lot per existing parcel. In 1998, this was relaxed to also allow an owner to subdivide parcels for his or her children.

In the previous regulations, section 80.3 defined an "existing parcel of land" as "any parcel of land or lot in lawful existence on July 9, 1994." This definition was inadvertently omitted in the current Regulations. However, subsection 63(7)(a) of the current Regulations does refer to "existing parcels of land on July 9, 1994".

The current Regulations are difficult to interpret and therefore the Respondent developed the March 29, 2004 Administrative Procedure (Exhibit R10). The current Regulations are now under review.

[7] The Respondent submits that its decision to deny the Appellant the subdivision of three lots from parcel 491407 is in accordance with the Regulations and the Respondent's Administrative Procedure and therefore the appeal should be denied.

Members of the Public

[8] J'Nan Brown spoke briefly in favour of the importance of the special planning areas to control urban and suburban "sprawl" in rural areas.

[9] Paul MacKinnon spoke briefly to the effect that he believed the special planning area "was against the Charter of Rights" as it only applied to certain areas of the Province. He noted he would like to sell building lots himself to pay for a new energy efficient home.

[10] The Commission acknowledges receipt on March 4, 2005 of a written submission from Elwyn Herlihy. Mr. Herlihy, who describes himself as the Appellant's realtor, provided arguments in support of the Appellant.

3. Findings

[11] 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 Commissions decision follow.

[12] Subsection 63(1) of the Regulations reads as follows:

63. (1) The July 9, 1994 designation of the following areas as special planning areas is continued:

(a) the area adjacent to the Town of Stratford as shown in Appendix A, Map No. 8;

(b) the area adjacent to the City of Charlottetown as shown in Appendix A, Map No. 9;

(c) the area adjacent to the Town of Cornwall as shown in Appendix A, Map No. 10;

(d) the area adjacent to the City of Summerside as shown in Appendix A, Map No. 11.

[13] In the present matter, it is the area adjacent to the Town of Cornwall which is pertinent to this appeal.

[14] Subsection 63(3) of the Regulations sets out the objectives of the special planning areas:

(3) The specific objectives for development within the Stratford Region Special Planning Area, the Charlottetown Region Special Planning Area, the Cornwall Region Special Planning Area, and the Summerside Region Special Planning Area are

(a) to minimize the extent to which unserviced residential, commercial and industrial development may occur;

(b) to sustain the rural community by limiting future urban or suburban residential development and nonresource commercial and industrial development in order to minimize the loss of primary industry lands to nonresource land uses; and

(c) to minimize the potential for conflicts between resource uses and urban residential, commercial and industrial uses.

[15] The general rule for subdivision of lots in a special planning area is set out in subsection 63(4). Subsection 63(5) provides for subdivisions of more than one lot per existing parcel of land in certain specified situations notwithstanding subsection 63(4). Subsection 63(5) reads as follows:

(5) Notwithstanding clause (4)(a), where the intended residential use is single family dwelling use, subdivisions of more than one lot per existing parcel of land, may be approved in the following situations:

(a) where the requirements of clause (4)(a) are insufficient to permit an owner of the parcel to provide lots for the children of the owner, and

(i) each lot to be subdivided is to be conveyed to a person who is a child of the owner of the parcel,

(ii) a statutory declaration declaring that the lots to be subdivided will be conveyed to and built upon by children of the owner of the parcel has been submitted by the owner of the parcel with an application to subdivide,

(iii) no more than one lot is to be subdivided for each child,

(iv) where more than one parcel of land is owned by any person, the total number of lots which may be subdivided from all existing parcels pursuant to this subsection is equal to or less than the number of children of the person,

(v) a lot intended for a child of the owner of an existing parcel of land shall not be given final approval and shall not be conveyed until the child has received a development permit approval for the lot and has submitted a statutory declaration declaring that the child intends to build a residence on the lot for the child's own use;

(b) where one lot is required in addition to those permitted by clause (a) or (4)(a) in order to accommodate an existing farm dwelling, and the dwelling on the lot is to be served by the existing farm dwelling access;

(c) where central sewerage service provided by a municipal sewerage utility or central water service provided by a municipal water utility is available or both are available, and an irrevocable agreement has been signed between the developer and the municipal sewerage or water utility to provide central sewerage service or central water service or both if available to all lots prior to the conveyance of any lot from the approved subdivision.

(emphasis added)

[16] Subsection 63(7) reads in part:

(7) Pursuant to the uses and limitations contained in subsection(4), development permits may be approved for

(a) existing parcels of land on July 9, 1994;

(b) subdivisions approved prior to July 9, 1994;

(c) subdivisions approved pursuant to subsections (4) and clauses (5)(a) and (b);

[17] "Existing parcel of land" is defined in section 1(h) of the Regulations as:

1. (h) "existing parcel of land" means any parcel of land or lot in existence prior to February 3, 1979;

[18] The Commission finds that, in the absence of a definition of "existing parcel of land " specific to section 63, the definition expressed in section 1(h) is applicable. On this basis, the Commission cannot agree with the argument presented by the Appellant that he is entitled to the exception set out in subsection 63(5). When the Appellant obtained parcel 491407 on October 14, 2004 (Exhibit A3), this parcel had been previously subdivided and thus his parcel was not a parcel of land or lot in existence prior to February 3, 1979.

[19] Further, the Commission finds that the Appellant's interpretation of subsection 63(5) of the Regulations is inconsistent with the objectives set out in subsection 63(3) of the Regulations.

[20] During the course of the hearing, discussion between the parties suggested that there was a possibility that the Appellant may be entitled to another lot or lots on another basis.

[21] The Commission has concerns about the Respondent's interpretation of the Regulations as these Regulations actually speak of parcels or lots in existence in 1979, rather than 1994. However, given the alleged deficiency of the Regulations and with the understanding that these Regulations are currently under review, the Commission will allow the Respondent's interpretation to stand for this particular appeal. The Respondent's interpretation of the Regulations may be more favourable to the Appellant's interests than the Regulations would actually allow.

[22] In any event, as the Regulations read as a whole do not support the interpretation given to section 63(5)(a) by the Appellant, the appeal is denied.

4. Disposition

[23] An Order denying the appeal will therefore be issued.

Order

WHEREAS Oswald MacEachern has appealed a decision of the Minister of Community and Cultural Affairs dated December 17, 2004;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on February 23, 2005 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 denied.

DATED at Charlottetown, Prince Edward Island, this 31st day of March, 2005.

BY THE COMMISSION:

Brian J. McKenna, Chair

Weston Rose, Commissioner

Kathy Kennedy, 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.