Order LA93-07 - LA93004 - Planning Appeal - Paul Williams v. Community of Winsloe (Jul 15, 1993)

Docket: LA93004
Order: LA93-7

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 Paul Williams (the Appellant) of Winsloe, against a decision whereby the Winsloe Community Council (the Community) denied issuance of a building permit to Paul Williams to construct an attached garage on parcel (Provincial Property No. 511428) located in the Community of Winsloe, P.E.I.

BEFORE THE COMMISSION

on Thursday, the 15th day of July, 1993.

Linda Webber, Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, Commissioner

Order

Appearances

1. For the Appellants

Paul Williams, the Appellant

2. For the Community of Winsloe

Doug Cook, Chairman, Winsloe Community Council

Betty Pryor, Administrator

Decision

I. BACKGROUND

In accordance with the Planning Act and the Winsloe Official Plan and Winsloe Zoning and Subdivision Control Bylaws, the Community of Winsloe has the authority to approve or deny the issuance of building permits. The Official Plan (Revised) was approved on November 15, 1988 and subsequently the amended Zoning and Subdivision Control Bylaws were enacted on February 2, 1989.

On April 1, 1993, Paul Williams made application for a building permit to construct a private garage on Lot #42 in the Alexius McQuaid Subdivision (Provincial Property No. 511428) (Exhibit 5). The application shows the proposed garage to have a width of 22 feet with a remaining 10 foot side yard.

On May 3, 1993, at a meeting of the Community of Winsloe Planning Board it was determined that since the proposed garage would be attached to the main building it was classified as part of the "dwelling" and must meet the bylaw requirements pertaining to that zone. In a Residential Single Family (R1) Zone, the minimum side yard is 15 feet. Planning Board discussed the application of a minor variance of 10%, which would allow a side yard of 13'6". Planning Board determined that the application failed to meet the bylaw requirements and it was recommended to Council that the application be denied.

On May 3, 1993, upon review of Planning Board's recommendation, Winsloe Community Council decided to deny the issuance of a building permit to the Appellant. The decision was based on the fact that the proposed garage would have a ten foot side yard and therefore would be in contravention of the fifteen foot sideyard as required by Section 6.1.2 of the municipal bylaws. Council considered the allowance of a minor variance, however even with the allowable ten percent variance the location of the garage would still be in contravention of the bylaw.

On May 6, 1993, Betty Pryor, the Community Administrator advised the Appellant that:

"Because the garage is attached to the single family dwelling located on the property, it is deemed to be part of the dwelling and must meet the standard requirements as stated under Section 6.1.2 of the Winsloe Zoning and Subdivision Control Bylaws. Your application indicates a side yard of ten feet and the minimum requirement is fifteen feet. Although Council has the authority to grant a variance up to 10%, the side yard requirement still would not be met and, therefore, the application cannot be approved." (Exhibit 3)

On May 12, 1993, Paul Williams appealed the decision of the Community Council to The Island Regulatory and Appeals Commission (Exhibit 2).

The Commission heard the appeal on July 15, 1993, in Charlottetown.

II. EVIDENCE AND ARGUMENTS

A. Appellant

Arguments for the Appellant can be summarized as follows:

Paul Williams argued that it was unreasonable for Council to deny him a building permit based on the fact that the proposed garage would only be three and one half feet over the allowable side yard requirement, if Council authorized a minor variance.

Mr. Williams stated that he was trying to improve his property by adding a garage and that it was unfair for the community to impose restrictions on the use of his property by having side yard, rear yard, and front yard requirements. Mr. Williams noted that as his neighbour did not object to the proposed garage, he felt that the Community Council should be more reasonable in allowing a greater variance to the side yard requirements.

Mr. Williams stated that when his house was built 12 or 15 years ago the approving authority at that time should have required the builder to locate the building on the lot - giving enough room to allow for a double car garage. As this was not done, there should be an onus on the Community Council to allow him to build a garage. Mr. Williams argued Council has a responsibility to correct the mistake of the former approving authority.

B. Community

Arguments for the Community can be summarized as follows:

Doug Cook stated that the Community Council had no alternative but to deny Mr. William's building permit based on the fact that the location of the proposed garage would be in contravention of the Winsloe Zoning and Subdivision and Control Bylaws.

Council considered the application of a minor variance, however the proposal would still not conform to the sideyard requirements as per Section 6.1.2 of the bylaws.

As a result of Planning Board's recommendation and a review of the bylaw requirements, Council had no alternative but to deny the building permit application.

III. DECISION

Having considered the evidence presented during the hearing the Commission decided to deny the appeal. The reasons for denying the appeal are:

In accordance with Section 6.1 of the Winsloe Zoning and Subdivision and Control Bylaw, the lot is zoned a Residential Single Family (R1) Zone.

Section 6.1.2 requires that:

In any Residential Single Family (R1) Zone, no building permit shall be issued except in conformity with the following requirements:

- Minimum Side Yard I5 ft

While the provisions of the bylaw require a 15 foot side yard, Section 4.5 allows Council to authorize a minor variance:

Council may authorize a minor variance of up to ten percent (10%) from the provisions of these Bylaws, in respect of any land, building or structure or the use thereof if the general intent and purposes of these Bylaws is maintained, and there are compelling reasons why the requirements of these Bylaws cannot be met.

The application of a minor variance would require the side yard to be no less than 13'6".

Section 4.3 requires that all provisions must be satisfied before a building permit can be issued.

No building permit for any zone in the Community shall be issued unless all provisions of these Bylaws are satisfied.

The Commission agrees with the Council that to issue a building permit for the construction of a garage, as proposed by the Appellant, and having a side yard of ten (10) feet, would be in contravention of Section 6.1.2 of the Winsloe Zoning and Subdivision and Control Bylaw. Although Council has the authority to grant a minor variance of ten percent, even with the variance the side yard distance does not conform with the requirements.

The Commission does sympathize with the Appellant in that when he purchased his home he was unaware that the requirements for minimum side yard would prevent him from building a garage 22 feet wide.

However, the Appellant should not shift the onus of responsibility onto the elected officials of the Community. In this situation, Council is merely enforcing community bylaws which have been approved by the Minister, pursuant to Section 17 of the Planning Act. The Community Council has a responsibility to uphold these bylaws, regardless of whether one individual has a perception that he/she is negatively affected. The Community Council should not be criticized for using and applying the "planning tools" which they are legally bound to uphold.

Although Mr. Williams argued that it was "ridiculous" for the community to prevent him from building a garage - all because he was 3.5 feet over the side yard requirement, the Commission finds that the Community Council must not compromise the integrity of its bylaws for the sake of approving this building permit application.

The Commission believes the decision of Council is not injurious nor has the Appellant suffered any undue hardship as a result of this decision, in fact the Appellant could build a garage given the configuration of the lot lines and existing side yard separation - albeit not to the same dimensions as that proposed.

With respect to the Appellant's question regarding the purpose of the side yard restriction, the Commission finds that although access for fire trucks may have been the rationale used by Council to apply this bylaw, this is not the only reason for requiring side yard separation. Regulations governing lot area coverage, yards, location, height, density, etc. are adopted for the purpose of limiting the bulk of a building so as to ensure the desirable amount of open space around it. Open space, and in this case side yard requirements, allows for not only emergency vehicle access but also provides a distance separation between buildings to minimize nuisance factors which may include the intrusion of noise and indiscriminate developments.

If the appellant truly believes that the side yard requirements are too stringent, then he should formally present these views to Council and seek an amendment to the bylaw. Council has a responsibility to consider these views and examine the bylaw requirements, and propose revisions as they see necessary. However, this is not to suggest that the sideyard requirements may or may not be too stringent.

Therefore the appeal is denied.

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 Paul Williams (the Appellant) of Winsloe, against a decision whereby the Winsloe Community Council (the Community) denied issuance of a building permit to Paul Williams to construct an attached garage on parcel (Provincial Property No. 511428) located in the Community of Winsloe, P.E.1.

Order

WHEREAS Paul Williams (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated May 12, 1993, against a decision of the Community of Winsloe;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown, P.E.I. on July 15, 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 July, 1993.

BY THE COMMISSION:

Linda Webber, Chairman

Anne McPhee, Commissioner

Myrtle Jenkins-Smith, Commissioner