Order LA05-09 - Dockets LA05011 & LA05013 - Planning Appeal

Docket: LA05011 & LA05013
Order LA05-09

IN THE MATTER of two appeals filed by Eugene Rooney concerning decisions of the Minister of Community and Cultural Affairs, dated May 25, 2005 and June 16, 2005.

BEFORE THE COMMISSION

on Friday, the 16th day of September, 2005.

Maurice Rodgerson, Chair
Weston Rose, Commissioner
Norman Gallant, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    For the Appellant:

Eugene Rooney
Rose Rooney Halliday
Leslie Halliday

2.   For the Respondent:

Don Walters

3.    For the Developer LA05011:

Russell Rogers

4.    For the Developer LA05013:

Roderick MacNeil
Tandi MacNeil

Reasons for Order

1.  Introduction

[1] Docket LA05011 is an appeal filed on June 15, 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 Eugene Rooney (the Appellant). This appeal addresses a decision of the Minister of Community and Cultural Affairs (the Respondent) on May 25, 2005 to grant preliminary approval for a 5 lot subdivision of parcel #176024 presently owned by Russell Rogers and situate at Orwell Cove.

[2] Docket LA05013 is an appeal filed on July 6, 2005 by the Appellant concerning a decision of the Respondent dated June 16, 2005. This second appeal addresses the Respondent's decision to grant preliminary approval for a 5 lot subdivision of parcel #176016 presently owned by Roderick MacNeil and situate at Orwell Cove.

[3] After due public notice, the Commission proceeded to hear the present appeals on August 17, 2005. The appeals were heard together as the Appellant submitted the same grounds for appeal for each matter and the key issues raised on each appeal appeared to be identical.

2.  Discussion

Appellant's Position

[4] The Appellant notes that he is a third generation farmer who is concerned that both proposed subdivisions will have a negative impact on his adjacent farming operation. He also expresses concern that one of the applications to subdivide was made by someone who was not the owner of the property at that time. He expresses concern about runoff and drainage.

[5] The Appellant requests, in his Notices of Appeal, that parcels 176024 and 176016 remain in agricultural use.

Respondent's Position

[6] The Respondent states that an agreement of purchase and sale between a vendor and purchaser is sufficient authority to permit the purchaser to make a subdivision application even if the property sale has not been completed. In addition, it is fairly common for an application to be made by a lawyer, surveyor or other professional on behalf of the property owner. The Respondent accepts these applications as the person completing the application is acting as the agent of the property owner.

[7] The Respondent notes that there are no zoning requirements in provincially regulated areas of the Province. There is no land use plan or other such protective mechanism to guard against conflicting land use in the Planning Act or its various regulations. The proposed subdivision of both parcels met the requirements set forth in the Planning Act Subdivision and Development Regulations (the Regulations). Further, no environmental concerns were expressed by the Department of Environment, Energy and Forestry.

[8] The Respondent requests that both appeals be denied, as all requirements of the Regulations were followed.

Developer Rogers' Position

[9] The Developer of parcel number 176024 states that it is his intent that the subdivision reflects the rural lifestyle of the surrounding area. At the hearing, he offered to implement a 50 foot wide “no cut strip” in the treed area bordering the Appellant's property.

[10] The Developer Rogers requests that appeal LA05011 be denied.

Developer MacNeil's Position

[11] The Developer of parcel number 176016 states that he purchased the land in order to move to Orwell Cove. He will be selling the other lots to help recuperate some of the other expenses. He states that restrictive covenants will be in place to prohibit any further subdivision of the lots. The lots currently measure 200 feet by 250 feet. However, he may take these lots back to the property line thus expanding the lots to 200 feet by 400 feet.

3. Findings

[12] 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.

[13] Subsection 14(1) of the Regulations read as follows:

14. (1) Application for an approved subdivision shall be made on a form prescribed by the Minister, and shall include the following:

(a) name, address, and telephone number of the applicant;

(b) property number;

(c) existing use of the land being subdivided;

(d) number of lots proposed, and proposed uses;

(e) signature of the owner of the land being subdivided; and

(f) all required fees.

[14] The Commission notes that in Appeal LA05011 the Developer Rogers did not own parcel 176024 at the time of application yet the owner of that property did not sign the Developer's application. Technically paragraph 14(1)(e) of the Regulations was therefore breached.

[15] The evidence does not reveal any breach of the Regulations in Appeal LA05013.

[16] However, it is significant to note that the Developer Rogers became the owner of parcel 176024 prior to the Respondent granting preliminary subdivision approval. Accordingly, there was an error in the application which was ultimately resolved through the actions of the Developer Rogers prior to the Respondent's decision to grant preliminary subdivision approval.

[17] The Commission is of the opinion that while allowing an agent of a landowner to sign on the landowners behalf is reasonable from a practical perspective, the Regulations should be amended to specifically permit the signature of a duly authorized agent of the landowner.

[18] With the sole exception of the application signing issue identified in paragraph [14] above, the Commission finds that the Respondent correctly followed the process set out in the Regulations for the preliminary subdivision approvals of both parcel 176024 and 176016.

[19] With respect to the Appellant's concerns about possible land use conflicts occurring when residential subdivisions are permitted in close proximity to an active agricultural operation, the Commission notes that this ought to be a matter of concern for those who shape public policy in the Province. However, the Planning Act and its Regulations do not, at present, require applications for preliminary subdivision approval to be evaluated on the basis of their proximity to agricultural uses. With respect to appeals under Section 28 of the Planning Act, the Commission is a tribunal created by statute and empowered with the task of hearing appeals. The Commission does not, however, have the power to create or amend legislation.

[20] Accordingly, the Commission finds that the Respondent met all the present requirements of the Planning Act and the Regulations in both the May 25, 2005 and June 16, 2005 decisions to grant preliminary subdivision approval.

[21] The Commission notes that all parties entered the hearing process open to the interests and concerns of the other participants and willing to work toward solutions. The Commission commends the parties to these appeals for their constructive approach to the appeal process. The hearing resulted in the parties having an opportunity to communicate directly and resolve many issues, but not all such disputes can be expected to have the same outcome. Many of the key concerns remain and are beyond the power of the Commission to remedy. However, the Commission believes that it would be helpful to further reflect on these matters in order to encourage discussion.

[22] The increasing number of residential developments in traditional agricultural areas will result in more conflicts. As the Respondent stated other than 31 municipalities with their own official plans there is no land use plan or zoning in the province. Therefore an application is not necessary to change an existing use of a property. The Respondent, as might be expected, has to operate within the laws and regulations that exist. If a proposed development meets the requirements of the Regulations it is approved.

[23] Those, such as the Appellant, seeking to protect farm land and farming operations will find little protection in existing requirements under the Planning Act or the Regulations.

[24] There are no simple solutions. Many people wish to live in rural areas. Farmers often sell property to obtain income. Without better guidelines and land use policies the Commission believes conflicts will increase.

[25] The status quo is a recipe for confrontation and discord. There are arguments in favor of Province-wide zoning, but it remains a controversial subject that is not likely to be addressed in the near future. However, that should not stand in the way of the development of some more intermediate policies and guidelines regarding land use in rural areas.

[26] The residents of Prince Edward Island tend to take great pride and interest in their property regardless of whether it is home building lot or a large farm. Both wish to protect their investment and derive enjoyment from it. Home owners view their property as an investment that will grow in value and provide a return if they decide to sell. A farm is often a family business, passed from generation to generation. Investments are not always made with the expectation of a payback in the immediate future and residential encroachment can, over a period of years, significantly influence the operation of the farm and even its viability.

[27] The implementation of some mechanism to consider and make decisions based on land use interests is necessary. It is not presently available at the application stage, nor is it available on appeal to the Commission. A residential development may meet all the existing legislative requirements, but that does not mean it is an appropriate development for an intensive farming area. A mechanism to permit such an issue to be considered and decided would be beneficial.

[28] A change in regulations requiring larger single family dwelling lots in farm communities should be considered. If the majority of land in the area is agriculture perhaps the minimum lot size should be one acre. Buffer zones could be required between residential areas and farm operations. In terms of the dwellings constructed on a rural lot, the minimum set back from the farm property could be substantially greater than that required from another residence.

[29] This is not an issue for farmers alone. Agriculture remains our leading industry and the basis for much employment. It also contributes to the tourism appeal of our province. The development of even some modest regulations such as those outlined would be a step in the direction of providing greater clarity to development policies in rural areas.

4. Disposition

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

Order

WHEREAS Eugene Rooney has appealed two decisions of the Minister of Community and Cultural Affairs dated May 25, 2005 and June 16, 2005;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on August 17, 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 16th day of September, 2005.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Weston Rose, Commissioner

Norman Gallant, 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.