Docket: LA93006
Order: LA93-15
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Dave and Judee Patterson (the Appellants) of Charlottetown, against a decision whereby the Lower Montague Community Council (the Community) denied Dave Patterson issuance of a permit to locate a mini-home on a parcel (Provincial Property No. 707141) located in the Community of Lower Montague, P.E.I.
DATED the 29th day of October, 1993.
Linda Webber, Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, Commissioner
Order
Appearances
1. For the Appellants
Dave Patterson and Judee Patterson Appellants
2. For the Community of Lower Montague
Kevin King Councillor,
Lower Montague Community Council
David O'Connor Councillor,
Lower Montague Community Council
Reasons for Decision
I. BACKGROUND
On August 11, 1993 the Commission issued Order LA93-8 in this matter, by which order the Commission sought additional information from the parties. Additional information was filed by the Appellants in a letter dated September 7, 1993 and by the Community in a letter dated August 18, 1993.
In his submission the Appellant requested that the Commission's decision be held in abeyance while the Appellant filed a new application with the Community. By letter dated September 30, 1993 the Appellant advised the Commission that the issues remained outstanding and a decision was required by the Commission.
II. EVIDENCE AND ARGUMENTS
The Community's submission confirmed in writing that the lot in question was severed from the parent parcel without any approval being applied for or granted. In addition, they submitted written comments of Niall MacKay, Property Development Officer, that sight distance from the east to the existing access is approximately 300 feet and from the west to the existing access is approximately 380 feet. The minimum distance required is 462 feet. The existing access is the safest. For these reasons he recommended refusal of the building permit application.
The Appellants did not deny these facts or disagree with the findings of Niall MacKay. The Appellants also admitted that the property was not subdivided before the sale. The Appellants argued that the sight distance requirement was too high for the type of road/lot location in question.
III. DECISION
In his final letter to the Commission, the Appellant makes the following comments about a meeting of the Lower Montague CIC he attended on September 29, 1993:
I was told that they had no problem giving me a permit to build and they welcomed us with open arms into their community.
.... They feel, as I do, that the same measurements that are used on a 30 Kil roadway as an 80 Kil highway is unfair, and that the roadway is almost a dead end and the traffic is very small .....
I was told that they had to go by the rules set down by the Department of Highways, but again they feel that the exception should be taken here and we were also told before it was up to you if you want to over rule the rules and regulations like this you and only you could and that if you did give your approval, they would have no problem issuing a permit.
We quote extensively from this letter for two reasons. First, it suggests that the Community has no concern about safety in the area. However, that is not what the Community said to us in the letter of August 18, 1993:
The Lr. Montague Community Council denied the application from the Pattersons on recommendations made by Niall MacKay, Property Development Officer, that there is no proper site distance. Council feels that it is in the best interests of all concerned to ensure the safety and welfare of the public. [Emphasis added.]
These comments lead us to believe that the Community does have some concern about safety in the area in question.
In addition, the Appellants clearly believe that this Commission has the power to ignore provincial regulations that bind Community Councils.
Unfortunately, we do not have such absolute powers. We, too, are bound by the law. There is no suggestion by the Appellant that the regulation is invalid—only that it is unreasonable.
We sympathize with the Appellants' situation and have previously commented on this particular regulation (see Decision and Order LL92-6, In the matter of an Appeal by Leroy Vessey, pp. 4-5) and wonder why farm access driveways are exempt from the sight distance requirement if it is a safety issue. However, we are bound by the law as it exists.
One difference between this case and the Vessey case is that here we are dealing with Section 8 (1.1) of the Planning Act which states:
(1.1) Where a municipality has an official plan and bylaws, the provisions of the official plan and bylaws shall not be less stringent than the regulations made under this Act on the same subject.
Because this is a provincial regulation, a variance by the Community may not be possible. They stated that they did not think it was. However, Section 9 of the Planning Act Regulations indicates that the Minister may "for special cause" authorize minor variations from the provisions of the regulations. Perhaps this route is open to the Appellants.
For the reasons outlined above, the appeal is dismissed.
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Dave Patterson and Judee Patterson (the Appellants) of Charlottetown, against a decision whereby the Lower Montague Community Council (the Community) denied Dave Patterson issuance of a permit to locate a mini-home on parcel (Provincial Property No. 707141) located in the Community of Lower Montague, P.E.I.
Order
WHEREAS Dave Patterson and Judee Patterson (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated May 20, 1993, against a decision of the Lower Montague Community Council;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Lower Montague, P.E.I., on July 20, 1993, after due public notice, which resulted in the issuance of Interim Order LA93-8;
AND WHEREAS the Commission has made a final decision in accordance with the stated reasons;
NOW THEREFORE, pursuant to the Planning Act;
IT IS ORDERED THAT the appeal is hereby dismissed.
DATED at Charlottetown, Prince Edward Island this 29th day of October, 1993.
BY THE COMMISSION:
Linda Webber, Chairman
Anne McPhee, Commisioner
Myrtle Jenkins-Smith, Commissioner
