DOCKET LA93002
ORDER LA93-5IN THE MATTER of the Planning Act, R.S.P.E.I. 1988, Cap. P-8;
and
IN THE MATTER of an appeal, under Section 28 of the Planning Act, by Ian Smith of Fida Enterprises Ltd. (the Appellant) against a decision whereby the Community Council of Cross Roads (the Council) denied an application by Ian Smith to subdivide five lots from Provincial Property Number 299503 located in Cross Roads, Queens County.
BEFORE THE COMMISSION
on Tuesday, the 18th day of May, 1993.
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Mike Ryan, Commissioner
Order
Appearances & Witnesses
1. For the Appellant
Ian Smith President of Fida Enterprises Ltd., The Appellant
Alfred Fraser Legal Counsel
2. For the Community of Cross Roads
Hank Spin Chairman, Community Council
Beverly McMurray Councillor
Reasons for Order
I. BACKGROUND
In accordance with the Planning Act, the Official Plan of the Community of Cross Roads and the Cross Roads Zoning and Subdivision and Control Bylaws, the Community Council of Cross Roads has the authority to approve the subdivision of land, pursuant to Section 5 of the Bylaw:
Section 5
Any person proposing to subdivide any land within the corporate limits of the community for the purpose of lease, sale, transfer, use or development shall make application for approval of the subdivision to the Council in accordance with the provisions of this Bylaw.
On November 30, 1992, Mr. Ian Smith applied to the Community of Cross Roads to subdivide Provincial Property Number 299503 into five lots (Exhibit 7). The property is zoned Agricultural Reserve (A1).
Section 30
Within the Agricultural reserve (A1) Zone, no person shall be permitted to subdivide from any existing parcel more than five lots.
On January 11, 1993, Rochelle Gallant, Community Planner with the Department of Community and Cultural Affairs, provided her assessment of the proposed subdivision. This assessment was in response to a request for a review of the application from Della Wood, Administrator for the Community of Cross Roads. Rochelle Gallant stated that "the proposed subdivision would not meet the requirements of the Cross Roads Subdivision Control Bylaw for the following reasons:
- the bylaws do not make provisions for development on private roads, and in relation to another proposal, it has recently been decided that the community retain this policy;
- the proposed cul-de-sac does not meet the requirement of section 26(2) of the bylaws which state that 'A cul-de-sac shall not exceed five hundred (500) feet in length and the turnaround shall have a minimum radius of seventy (70) feet';
(Exhibit 6)- while the bylaws do allow subdivision of up to five lots in the 'A1' zone, it is my understanding that the maximum has already been subdivided from the original parcels."
On February 1, 1993, Hank Spin, Chairperson of the Community Council, notified Mr. Smith that his application was denied. The reasons for denial were the same as those stated by Rochelle Gallant (Exhibit 5).
On February 8, 1993, Community Council passed a motion to deny the request of Fida Enterprises Ltd. to further subdivide parcel number 299503 (Exhibit 4).
On February 17, 1993, Ian Smith appealed the decision of the Community Council to The Island Regulatory and Appeals Commission (Exhibit 1).
The Commission heard the appeal on May 18, 1993, in Charlottetown.
II. EVIDENCE AND ARGUMENTS
A. Appellant
Arguments for the Appellant can be summarized as follows:
In response to the Council's reason for denying the proposal that the subdivision will be served by a private road, and therefore is in violation of Sections 11(1) and 11(2) of the Subdivision Control Bylaw, Mr. Alfred Fraser argued that other subdivisions have been approved in the "immediate" area with private roads, for example, Bellevue Cove and Reddin subdivisions. Consequently, it would appear that either the Community's "policy" has changed or the "policy" has not been applied consistently.
As for the second reason, Mr. Fraser argued that although the cul-de-sac in the proposed subdivision does not meet the requirements of the bylaw, there are existing approved subdivisions in the community with cul-de-sacs which have roads in excess of 500 feet or do not meet the radius requirements. Again the Community has not applied the provisions of the bylaws consistently.
Mr. Fraser argued that the Agricultural Reserve (A1) zone permits a maximum subdivision of five lots from the "existing" parcel. The bylaws define existing as "what was in existence at the time of the passing of the bylaw". In Mr. Smith's case, the "existing" parcel would be the parcel he originally purchased. Therefore, Mr. Smith is the only one who could subdivide up to five lots.
The history of the property shows that Mr. Smith has subdivided only two lots from the existing parcel. Donald and Della Wood purchased the second parcel and subsequently applied for—and were granted—permission to subdivide their parcel into five lots in addition to the remaining portion of the property which they originally purchased. This would account for a total of six lots. Mr. Fraser argued that the Community Council did not follow their own bylaw, and erred in allowing the Woods' property to be further subdivided.
In addition to providing arguments concerning the reasons outlined in the letter of denial, Mr. Fraser further argued that the Community should have decided on the application within sixty days pursuant to Section 33(3) of the Subdivision Control Bylaws.
B. Community of Cross Roads
Arguments for the Community can be summarized as follows:
The Community Council argued that the proposed subdivision was in contradiction of the bylaws for the reasons as earlier stated.
III. DECISION
After considering the evidence presented at the hearing, the Commission decided to deny the appeal. The reasons for not allowing the appeal are:
1) The Commission agrees with the Council on the matter of the public road requirement. The Commission is guided by Sections 11(1) and 11(2) of the Cross Roads Subdivision Control Bylaw.
Section 11(1)
Every lot or parcel shall have at least the minimum frontage on a public street or road for the intended use of the lot or parcel as outlined in this Bylaw and the Cross Roads Zoning Bylaw.
Section 11(2)
In a summer residential subdivision every lot shall have at least the minimum frontage on a public street or road except if the subdivider establishes a non-profit organization composed of residents or landowners of the subdivision and responsible for holding, maintaining and administering all parks, streets and roads within the subdivision.
During the hearing, Mr. Fraser argued that the Appellant was not being treated the same as others by the Council. He believed there were a number of subdivisions approved by the Community Council which do not comply with the provisions of these bylaws—specifically, Bellevue Cove Estates subdivision and the Reddin subdivision.
In review of the plan of subdivision for Bellevue Cove Enterprises Inc., the Commission finds the plans were approved in 1978 by the Land Use Service Centre for summer cottage use only. The Commission concludes that this subdivision was approved under provincial regulations and not the Cross Roads Zoning and Subdivision Control Bylaw.
The Commission believes that the subdivision proposal failed to meet Sections 11(1) and 11(2) of the bylaw in that the proposed right-of-way was private and the application did not stipulate that the subdivision was a "summer residential subdivision" and a "non-profit organization" would be established for "holding, maintaining and administering all parks, streets and roads within the subdivision".
2) The Commission finds that the Community Council was correct in denying the application to subdivide land based on the length of the proposed cul-de-sac because it did not comply with the standards required under Section 26(2) of the Subdivision Control Bylaw.
Section 26(2)
A cul-de-sac shall not exceed five hundred (500) feet in length and the turnaround shall have a minimum radius of seventy (70) feet.
The plan of subdivision indicates the proposed cul-de-sac is 600 feet in length.
Another question raised during the hearing was the proper interpretation of Section 30 of the Subdivision Control Bylaws.
Although the definition of "existing" is not contained in the Cross Roads Subdivision Control Bylaws, the Commission finds that the most reasonable interpretation is that existing means as of the effective date of the bylaw. The Commission takes guidance from the definition of "existing" contained in the Zoning Bylaw.
An historical review of the subdivision of the property indicates:
· The existing parcel of approximately 80 acres was purchased by Ian Smith in 1987;
· A 4-acre parcel was subdivided and subsequently sold;
· Another 23- to 24-acre parcel was subdivided and sold to Donald and Della Wood;
· On May 14, 1990, Donald and Della Wood received approval from Council to subdivide 3 lots from the property purchased from Ian Smith (Plan # 12917A);
· On October 17, 1990, Donald and Della Wood received approval from Council to subdivide 1 lot from the property purchased from Ian Smith (Plan # 12917B); and
· On October 13, 1991, Donald and Della Wood received approval from Council to subdivide 1 lot from the property purchased from Ian Smith (Plan # 13467B).
The Commission finds that the status of an "existing" parcel can only be attributed to the parent parcel that existed at the time the bylaw was adopted and the residual left after the parcel is severed. That is, in this case Ian Smith severed a 4-acre parcel from the 80-acre parcel which left a 76-acre residual on the remainder of the existing parcel. The 4-acre parcel is the first lot off and is not an existing lot and therefore cannot be severed under Section 30. Then Mr. Smith decided to sever an approximately 24-acre parcel from the 76-acre existing parcel. The 24-acre parcel is not an existing parcel and therefore cannot be subdivided. The remainder of the "existing" parcel is approximately 52 acres which can be further subdivided by severing 3 more lots from the existing parcel. If all lots are severed, then the result would be 6 parcels of land—the residual of the parent or "existing" parcel plus 5 new lots.
It is the Commission's view that the Council erred in granting approval of the subdivision of the 24-acre parcel owned by Donald and Della Wood. That error should not result in excluding the Appellant from further subdividing the remainder of his parcel.
With respect to the Appellant not being notified within 60 days from Council receiving the application, pursuant to Section 33(3) of the Subdivision Control Bylaws, the Commission finds that the Community Council did not comply with this bylaw. However, as the bylaw does not offer a remedy for non-compliance, the Commission cannot allow the appeal on the basis of this violation.
The Commission believes that there is a responsibility on the part of Community Council to deal with applications in an expedient manner. In the current application, Mr. Spin apologized for the tardiness of Council in dealing with this application. In the future, the Commission strongly recommends that the Community Council adhere to the bylaw and ensure applicants are kept informed of the status of their applications.
On June 3, 1993, the Commission received a petition from residents and owners of property located in Bellevue Cove Estates subdivision. The petition stated that the undersigned residents were opposing the "re-zoning of A-1 (Agricultural Reserve) on the northern boundary of the said Subdivision to R-1 (Residential Suburban)". On June 11, 1993, the Commission received a response from the Appellant's legal counsel.
The Commission finds that the issue of re-zoning has no relevance to the appeal before the Commission. The appeal before the Commission deals with a decision by the Community Council to deny an application by Mr. Smith to subdivide parcel number 299503 based on the current zoning. The parcel is currently zoned Agricultural Reserve under the Cross Roads Zoning Bylaws (1985 Revised). If the residents have a concern with future re-zoning of the land, then the issue should be raised directly with the Community Council.
Order
WHEREAS Ian Smith of Fida Enterprises Ltd. (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated February 17, 1993, against a decision of the Community Council of Cross Roads;
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on May 18, 1993, after due public notice;
AND WHEREAS the Commission has made a decision in accordance with the stated reasons;
NOW THEREFORE, pursuant to the Planning Act;
IT IS ORDERED THAT the appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island, this 28th day of June, 1993.
BY THE COMMISSION:
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Mike Ryan, Commissioner