DOCKET LA92012
ORDER LA93-6IN 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 Elwin Jay Holdings Inc., (the Appellant) against a decision whereby the Community Council of East Royalty (the Council) denied Elwin Jay, the President of the Company, a building permit to allow the continued removal of 4" - 6" of topsoil from a vacant 23 acre parcel of land (Provincial Property Number 736926) located on the MacWilliams Rd., Community of East Royalty, Queens County.
BEFORE THE COMMISSION
on Friday, the 11th day of June, 1993.
Linda Webber, Chairman
John L. Blakney, Vice Chairman
Myrtle Jenkins-Smith, Commissioner
Order
Appearances & Witnesses
1. For the Appellants
Elwin Jay and Kim Jay for Elwin Jay Holdings Inc., the Appellant
2. For the Community of East Royalty
Cathy Parkman Legal Counsel
Kevin McCarville Administrator
Decision
I. BACKGROUND
In accordance with Section 13.1 of the Community of East Royalty's Zoning and Subdivision Control Bylaws, the Community Council has the authority to approve or deny the issuance of a building permit.
On September 23, 1990, Mr. Elwin Jay completed an Application for Development Permit for Temporary Excavation Pit to the Department of the Environment. The application is for the excavation of approximately 6,000 cubic yards of topsoil to be removed from a pit to be located on Provincial Property Number 736926 in East Royalty, Prince Edward Island (Exhibit 1). The land is within a Residential Reserve Zone.
On October 1, 1990, the Minister responsible for the Department of the Environment issued a permit to Elwin Jay to operate a temporary excavation pit to expire on October 1, 1991 (Exhibit 2).
On April 10, 1992, Kevin McCarville, Administrator for the Community of East Royalty, advised Mr. Jay that "the issuance of an excavation permit for this property would be in clear violation of the East Royalty Zoning and Subdivision Bylaw (see Section 13.1)" (Exhibit 11).
Further, Mr. McCarville stated in a letter to Mr. Wayne Crosby, dated April 10, 1992, "Presently there is no excavation permit in place for this property. The previous permit ... expired on October 1, 1991. Mr. Jay's property is zoned as Residential Reserve land. This means the land must retain its agricultural purposes until such time as it is developed for residential purposes" (Exhibit 12).
On April 15, 1992 Elwin Jay and Kim Jay on behalf of Elwin Jay Holdings Inc. appealed the decision of the Community Council to The Island Regulatory and Appeals Commission (Exhibit 13).
The Commission heard the appeal on May 26, 1992, in Charlottetown and issued without reasons Order LL92-5 on July 8, 1992, to allow the immediate removal of the topsoil stockpiled on the site as a result of the permit issued by the Department of the Environment for the temporary excavation pit.
II. EVIDENCE AND ARGUMENTS
A. Appellant
Arguments for the Appellant can be summarized as follows:
In the statement of appeal, the Appellants argue that "the Community of East Royalty has erred in its position that excavation of topsoil contravenes Section 13.1 of its municipal bylaws."
During the hearing the Appellants argued that the excavation of topsoil should be considered an agricultural practice and therefore should be considered a permitted use under Section 13.1 of the East Royalty Zoning and Subdivision Control Bylaws.
In the statement of appeal (Exhibit 27) the Appellants further argued:
"It will be recognized that this excavation is an inherently benign activity which does not pose any environmental threat. It may be argued that Elwin Jay Holdings Inc. is harvesting topsoil in much the same manner its neighbor cultivates hay or oats."
In summation, Kim Jay reiterated during her closing arguments, "the excavation at this particular site is ... arguably agricultural in character. The process of working up the ground, removing the topsoil, restoring the land for subsequent recovery has a lot in common with harvesting potatoes or oats or any other commodity."
B. Community of East Royalty
Arguments for the Community can be summarized as follows:
Cathy Parkman, legal counsel for the Community, argued that Section 25 of the Environmental Protection Act has particular relevance to the appeal. Pursuant to this section, the Lieutenant Governor in Council has the authority to make regulations for the enhancement and protection of the environment.
Ms. Parkman stated that two sets of Environmental Protection Act Regulations were in effect - the first set came into force on August 17, 1989 (EC485/89) and were in force at the time Mr. Jay made his original application. The second set of regulations came into effect on November 15, 1990 (EC753/90) which changed the standards with respect to issuing permits for excavation pits. Under the new regulations, Section 4.(1)(c) states:
4.(1)(c) Except as provided in subsections (2) and (4), no permit shall be issued
(c) if the use of the land as an excavation pit would be in contravention of any other Act, regulation or bylaw;
Ms. Parkman argued that pursuant to Section 13.(1) of the Community of East Royalty Zoning and Subdivision Control Bylaws, the property is zoned Residential Reserve, and the use of the land is limited for agriculture until such time as Council has approved the development of the land for residential purposes. Ms. Parkman argued that it is the position of the Community that "a commercial soil moving operation does not constitute an agricultural use and therefore it does not constitute an accepted agricultural use of the property".
In conclusion, counsel for the Community argued that the Minister responsible for the Department of the Environment had no alternative but to deny the permit - based on the fact that the permit, as applied for, would be in contravention of Section 13.1 of the East Royalty Zoning and Subdivision Control Bylaws.
III. REASONS FOR DECISION
After considering the evidence presented at the hearing, the Commission decided to deny the appeal but that the Appellant should be permitted to remove the topsoil stockpiled on the site as a result of the temporary permit issued by the Department of the Environment. All provisions of the Environmental Protection Act must be met and the Appellant must acquire all necessary permits required to remove the existing stock pile. The reasons for the Commission's decision are as follows:
The Commission recognizes that pursuant to Section 4(1)(c) of the Environmental Protection Act Excavation Pits Regulations, the Minister responsible for the Department of the Environment has a responsibility to deny an excavation permit where the land as an excavation pit would be in contravention of a municipal bylaw.
The Commission is guided by the definition of "agricultural purposes" as defined under Section 2 of the East Royalty Zoning and Subdivision Control Bylaws. In this particular case the Department issued a temporary excavation permit even though an excavation pit is not permitted in a Residential Reserve Zone.
"agricultural purposes means the use of any land for the purpose of soil conservation, crop production and/or raising livestock."
The Commission does not accept the Appellant's argument that the removal of topsoil can or should be considered an agricultural purpose or use. The Commission does not believe that the activity can fall within the meaning of soil conservation nor can it be logically categorized crop production or raising livestock. The Commission finds that allowing the removal of topsoil within a Residential Reserve Zone is in contravention of the Bylaw and the Community Council could not issue a permit. Therefore, the appeal is denied.
However, the Commission was faced with deciding what should happen to approximately 5,400 cubic yards of topsoil stockpiled on the site as a result of the temporary excavation permit issued by the Department of the Environment. The Commission found that the Appellant acted in good faith and that he only proceeded to do what he thought was permitted under the temporary permit and that it would be unfair to not allow him to remove the stockpile. Consequently on July 8, 1992, the Commission ordered (Order LL92-5) that the Community Council allow the removal of approximately 5,400 cubic yards of soil from the existing stockpile.
Order
WHEREAS Elwin Jay Holdings Inc. (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice dated April 15, 1992, against a decision of the Community Council of East Royalty;
AND WHEREAS the Commission heard the appeal at public hearings conducted at Charlottetown on May 26, 1992, after due public notice;
AND WHEREAS the Commission believed it appropriate to allow the immediate removal of the topsoil presently stockpiled on the site and as a result issued Order LL92-5 without reasons;
AND WHEREAS the Commission has made a decision in accordance with the reasons stated herein;
NOW THEREFORE, pursuant to the Planning Act;
IT IS ORDERED THAT the appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island, this 11th day of June, 1993.
BY THE COMMISSION:
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner