Order LA05-11 - Docket LA05019 - Planning Appeal

Docket: LA05019
Order LA05-11

IN THE MATTER of an appeal by Greg Weeks of a decision of the City of Summerside, dated August 15, 2005.

BEFORE THE COMMISSION

on Friday, the 28th day of October, 2005.

Brian J. McKenna, Vice-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:

Greg Weeks

2.   For the Respondent:

Counsel:
Krista J. MacKay

Witness:
Thayne Jenkins

3.   Member of the Public

Erin Hanlan-Aitken

Reasons for Order

1.  Introduction

[1] This is an appeal filed on August 24, 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 Greg Weeks (the Appellant) concerning an August 15, 2005 decision of the City of Summerside (the Respondent) to deny a request by the Appellant for front and rear yard variances to allow for a new single-family residential dwelling on 15 St. Lawrence Street, parcel number 300988 (the subject property), in Summerside.

[2] After due public notice, the Commission proceeded to hear the present appeal on October 5, 2005.

2.  Discussion

Appellant's Position

[3] Highlights of the Appellant's oral submissions at the hearing include the following:

The Appellant wishes to purchase the subject property to construct a small single family residence. The deeded dimensions of the lot are approximately 40 by 58 feet. The surveyed dimensions are approximately 40 by 52 feet.

The Respondent's Zoning Bylaw SS-15 (Zoning Bylaw) requires a minimum front yard setback of 6 metres (20 feet) and a minimum rear yard setback of 5 metres (16.5 feet). The Appellant requests a variance of the front yard setback to 4.5 metres (15 feet) amounting to a 25% variance and a variance of the rear yard setback to 3.1 metres (10.3 feet) amounting to a 37.5% variance.

As the Appellant does not currently own the subject property, the present owner was required to co-sign the Appellant's application for a variance. In the event the variance is approved, the Appellant intends to purchase the subject property.

Some nearby residents expressed strong opposition to the Respondent granting the variance. The Appellant notes that this opposition appears to be directed against the present owner of the subject parcel who allegedly owned a dilapidated rental property which burned down the previous year. The Appellant notes that if the variances are not approved, his purchase of the subject property will not occur and the subject property "…will remain a weed infested rubble strewn lot that is too small to build on".

The Appellant submits that the Respondent made a subjective decision to deny his variance application based on pressure from the residents. The Appellant is prepared to consent to an exclusive, conditional, personal variance to address the concerns expressed by the residents that the current owner of the subject parcel would construct a new sub-standard dwelling on said parcel.

[4] The Appellant requests that the Commission allow the appeal, reverse the Respondent's decision and grant him the requested variances.

Respondent's Position

[5] At the hearing, the Respondent presented evidence of the process which was followed leading up to its decision to deny the variances. Highlights of this evidence include the following:

The lot depth of the subject property is only 52 feet. Green space would be very limited if the variances were granted and a home constructed on the subject property.

The proposed variances did meet four out of five of the criteria set out in the variance test set out in section 6.2 of the Zoning Bylaw. However, in regards to the fifth criterion of the test, four out of six written responses from residents expressed opposition to the granting of the variances. Opposition to the proposed variances was also readily apparent when the Respondent's Council met to consider the matter. The Respondent notes that its Council placed a great deal of weight on the fifth criterion. The Respondent submits that it is not the number of objections that are important but the substance of the objections that ought to be persuasive.

The Respondent submits that the two part test enunciated by the Commission in past orders is applicable. The Respondent submits that it followed the proper process and its decision had planning merit given the very small size of the subject parcel and the minimal green space which would result from building a home with the requested variances. While acknowledging that "infill" development is usually considered to be a good planning practice, the Respondent submits that sometimes a lot is just too small for development.

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

Member of the Public

[7] Erin Hanlan-Aitken told the Commission that she owns and resides in a property adjacent to the subject property. Ms. Hamlan-Aitken states that when she purchased her home she was advised that the subject property could not be built upon without a variance. She noted that she was interested in purchasing the subject property to provide additional green space for her own property; however, the asking price of the subject property was too high for such a small lot. She also expressed concern about the construction of a home on the subject property, specifically the location of parking, fire safety issues, whether the home would be rented or owner occupied and the effect a new home would have upon the water view she presently enjoys.

3. Findings

[8] After a careful review of the evidence, the information provided by the parties, and the applicable law, it is the decision of the Commission to allow the appeal for the reasons which follow.

[9] Appeals under the Planning Act generally take the form of a hearing de novo before the Commission. In a frequently 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.

[10] Section 6.2 of the Respondent's Zoning Bylaw reads as follows:

Justification for Variances

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.

[11] 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 after careful reflection on a case by case basis. 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 Planning Act, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

[12] The Commission finds that the above-cited principle applies where a decision making body, such as the Respondent, approves an application for variances pursuant to its Zoning 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 Zoning Bylaw in making a decision to approve the requested variances; and

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

[13] In addressing the first part of the Commission's test, it is necessary to determine whether the Respondent considered the variance application against the five tests for justifying a variance noted in section 6.2. The first four of the section 6.2 tests appear to have been met, according to the Respondent's evidence. It is test "e)" where the Respondent identified difficulties with the Appellant's application for a variance.

[14] The Respondent was required to consider the Appellant's variance application against test "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." However, instead of focusing on the impact of the proposed variance on the enjoyment of adjacent properties or the essential character of the neighbourhood, the Respondent's Council directed its attention in large measure to the issue of the ownership of the property.

[15] The Commission finds that the Respondent placed considerable weight on the ownership issue. Ownership of the property is not a consideration under the section 6.2 test and appears to be of questionable relevance on a variance application. The Commission finds that the Respondent improperly considered the issue of the ownership of the subject property and, therefore, misapplied the section 6.2 test. This test is a key component of the procedure provided by the Zoning Bylaw applicable to a consideration of a variance application. The Commission therefore finds that the Respondent did not follow the proper procedure required in its Zoning Bylaw when considering the present variance application. Accordingly, the Respondent has not met the first part of the Commission's test.

[16] With respect to the second part of the Commission's test, the Commission is mindful of the testimony of the Respondent's witness to the effect that infill development is generally good planning practice and preferable to allowing a lot to remain vacant; however "sometimes a lot is just too small". In order to consider whether or not the proposed variances have merit based on sound planning principles; the Commission has reviewed the Respondent's staff report and notes in particular the following recommendation:

RECOMMENDATION: (For Council Resolution)

Technical Services Staff advise the variances are reasonable considering the size of the lot and proposed size of dwelling. There are other properties in the area that have a similar lot depth that is undersized. On the other hand, variances for both front and rear yards limit the green space on the property. The concerns of the adjacent property owners have merit with respect to property standards and unfortunately an approval or denial of the variances will not resolve these issues.

[17] Given that the subject property is an existing approved lot, the Commission finds that granting the variances requested by the Appellant is in accordance with sound planning principles. While the issue of green space is an important concern, it should have been addressed when the subject property was subdivided, presumably many years ago.

[18] In addressing the Appellant's offer to consent to an "exclusive, conditional, personal variance" to address the concerns of the nearby residents, the Commission wishes to point out that a variance runs with the property and as such a variance cannot be approved conditional on the ownership of the property. As well, a variance should not be denied solely on the basis of who owns the property.

[19] With respect to the concerns of the residents who live near the subject property, the Commission notes that the evidence strongly suggests that past problems were rooted in poor construction standards and inadequate upkeep. These problems can likely be avoided by the Respondent enforcing the National Building Code requirements (adopted by the Respondent's Council on January 1, 1996) at the construction stage and by enforcing the Respondent's Dangerous, Hazardous and Unsightly Premises Bylaw (SS-18).

[20] For these reasons, the Commission hereby allows the appeal, quashes the August 15, 2005 decision of the Respondent and grants the following variances for the subject property:

The minimum front yard setback shall be varied from 6 metres (20 feet) to 4.5 metres (15 feet) amounting to a 25% variance;

The minimum rear yard setback shall be varied from 5 metres (16.5 feet) to 3.1 metres (10.3 feet) amounting to a 37.5% variance.

4. Disposition

[21]   An Order allowing the appeal, quashing the Respondent's decision and granting the variances referred to in the previous paragraph will therefore issue.

Order

WHEREAS Greg Weeks has appealed a decision of the City of Summerside dated August 15, 2005;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on October 5, 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 allowed.

2.  The August 15, 2005 decision of the City of Summerside denying an application for two variances for parcel number 300988 is hereby quashed.

3.  The minimum front yard setback for parcel number 300988 shall be varied from 6 metres (20 feet) to 4.5 metres (15 feet) amounting to a 25% variance.

4.  The minimum real yard setback for parcel number 300988 shall be varied from 5 metres (16.5 feet) to 3.1 metres (10.3 feet) amounting to a 37.5% variance.

DATED at Charlottetown, Prince Edward Island, this 28th day of October, 2005.

BY THE COMMISSION:

Brian J. McKenna, Vice-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.