Docket: LA05003 and LA05004
Order LA05-05

IN THE MATTER of an appeal by Robert MacDonald and Julie MacDonald of a decision of the Community of Borden-Carleton dated January 11, 2005.

BEFORE THE COMMISSION

on Thursday, the 12th day of May, 2005.

Maurice Rodgerson, Chair
Weston Rose, 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 Appellants:

Robert MacDonald
Julie MacDonald

2.   For the Respondent:

Charles McNally
Laurel Palmer Thompson

Reasons for Order

1.  Introduction

[1]   Docket LA05003 is an appeal filed on February 1, 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 Robert MacDonald and Julie MacDonald (the Appellants) concerning a decision of the Community of Borden-Carleton (the Respondent) on January 11, 2005 to deny an application to consolidate parcel numbers 380691 and 380709 located in Borden-Carleton. 

[2]  Docket LA05004 is an appeal filed on February 1, 2005 by the Appellants concerning a purported decision of the Respondent dated January 21, 2005 to deny a development permit for parcel number 380691 located in Borden-Carleton.

[3]  After due public notice, the Commission proceeded to hear the present appeal on March 30, 2005.

[4]  At the hearing, the Commission set aside Docket LA05004 as there was no evidence before the Commission that the Respondent had made a decision to deny the Appellants a development permit on January 21, 2005.  In fact, the Respondent did not make such a decision until February 15, 2005 and therefore the Appellants' appeal under Docket LA05004 was premature.  As no new Notice of Appeal was filed within 21 days of February 15, 2005, the Commission is unable to hear an appeal of the decision to deny the Appellants a development permit.  The Commission then proceeded to hear the appeal concerning Docket LA05003.

2.  Discussion

Appellants' Position

[5]  The Appellants submit that the consolidation of the lots should be approved.  While they have a permit from the Respondent to place the 20 foot by 40 foot private detached garage (the building) on parcel 380709, they put the building on parcel 380691 instead because the ground was higher there, they thought it looked better there, they thought their neighbours would prefer the look of the building there and the gravel they were seeking for parcel 380709 had not arrived when they moved the building onto their property.  The Appellants state that the building will be used for storing antique cars and will not be used for an auto salvage.

[6]  The Appellants request that the Commission order parcels 380709 and 380691 to be consolidated so the building can remain where it is.

Respondent's Position

[7]  The Respondent submits that the lot consolidation should not be approved.  The Respondent states that the Appellants have been operating an auto salvage on parcels 380709 and 380691, which is not permitted as both of these parcels are in a R1 residential zone.  A permit for a 20 by 40 foot private detached garage was issued for parcel 380709 because that parcel contains a dwelling and the building would be an accessory building to that dwelling.  No permit was issued for parcel 380691 as that lot did not have a dwelling on it.  The use of parcels 380709 and 380691 for an auto salvage is an obnoxious and illegal non-conforming use which is "architecturally disharmonious" and serves to lower property values in the neighbourhood.  The Appellants' property has been the subject of numerous cleanup orders issued by the Respondent and while the Appellants do temporarily tidy up the property, derelict cars return each autumn.

[8]  The Respondent requests that the Commission deny the appeal.

 3.  Findings

[9]  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.

[10]  The following portions of the Respondent's Zoning and Subdivision Control Bylaw (the Bylaw) are relevant to this appeal:

Subdivision approval
No person shall subdivide one or more lots or any portion of a lot and no person shall consolidate two or more parcels of land until the conditions of this Bylaw have been complied with and the applicant has received final approval from the Council.
…

Permission to Subdivide
No person shall subdivide land within the Community unless the subdivision:
…
.5.  will reasonably conform with existing land use in the immediate vicinity;
…
.8.  is suitable to the use for which it is intended, and the future use of adjacent lands;
…

[11]  With respect to the Respondent's argument that the building is "architecturally disharmonious", the Commission notes that this argument appears to be based on the fact that the building has a flat, or a nearly flat, roof.  Based on the photographs provided by the Respondent in evidence, the Commission finds that there is no common architectural theme in this particular neighbourhood.  Rather, like many communities in the Province, the architecture is of a mixed nature and the very fact that the building has a roof of very minimal slope does not of itself make it "architecturally disharmonious" in this neighbourhood.

[12]  However, the evidence before the Commission does suggest that the Appellants are operating at least some aspects of their auto salvage or auto repair business on their residential lot and the adjacent lot which they also own, both of which are zoned Residential (R-1.  A review of the Residential (R-1) permitted uses does not include an auto salvage or auto repair business.  By operating the aforementioned type of business in the Residential (R-1) zone, the Commission finds that the Appellants have not complied with the conditions of the Bylaw.  Accordingly, it is within the power of the Respondent to deny lot consolidation for the reasons which were set out in its January 18, 2005 letter to the Appellants, and therefore the appeal is denied.

[13]  As the building is not legally permitted to be placed on parcel number 380691, the Commission hereby orders the Appellants to remove the building (stated by the Appellants as measuring approximately 20 by 40 feet) from parcel number 380691 prior to July 31, 2005.

[14]  The Commission wishes to point out to the Appellants that they applied for, and received, a permit to move the building to parcel number 380709 and that this permit remains valid and does not expire until September 24, 2005.  However, all the conditions specified in the permit must be followed.

[15]  The Commission considers it appropriate to comment on another aspect of this appeal.  During the public hearing it became obvious to the Commission that one of the representatives for the Respondent lives in the immediate area impacted by the matter under appeal and has been involved in other issues concerning the Appellants.  At times this blurred the line between professional and personal interests and in the Commission's view added an unnecessary dimension to the proceedings.  Prince Edward Island is a small province, with small communities and it may not always be possible to avoid such potential conflicts, however in this case the Respondent's administrator was also present and could have presented the Respondent's position, relying on the Councilor as a witness.  The role of the Respondent in such proceedings is to explain and defend its actions under the Bylaw and that is best achieved by a straight forward and objective presentation of the facts untainted by personal factors.

4.  Disposition

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

Order

WHEREAS Robert MacDonald and Julie MacDonald have appealed a decision of the Community of Borden Carleton dated January 11, 2005;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on March 30, 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.

2.    The Appellants are hereby ordered to remove the building, stated to measure approximately 20 by 40 feet in size, from parcel number 380691 prior to July 31, 2005.

DATED at Charlottetown, Prince Edward Island, this 12th day of May, 2005.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Weston Rose, 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.