Docket: LA93006
Order: LA93-8IN 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 11th day of August, 1993.
Linda Webber, Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, Commissioner
Order (Interim)
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
In accordance with the Planning Act and the Community of Lower Montague Zoning and Subdivision Bylaws, the Community of Lower Montague has the authority to approve or deny the issuance of a mobile home permit. The Zoning and Subdivision Bylaws were approved November 23, 1987 and amended July 25, 1988.
On March 23, 1993, Dave Patterson made application for a mobile home permit on Provincial Property No. 707141 (Exhibit 8). The land is within a Rural Residential (R1) Zone and a mobile home is a permitted use.
On March 24, 1993, Niall MacKay, Property Development Officer, completed a "Pre-Development Inspection Report" and recommended that "The proposal does not have adequate sight distance. I cannot find where the lot has been approved by council." (Exhibit 7)
On May 10, 1993, Gordon MacKenzie, Chairman of the Lower Montague Community Council, advised Mr. Patterson that Council refused his proposal based on Section 3.7 of the Community of Lower Montague Zoning and Sub-division Bylaws:
Section 3.7
"No permit shall be issued in any zone for any building or structure, the access to or exist [sic] from which will, in the opinion of council, cause a traffic hazard, congestion, or an inconvenience to residents in the vicinity or the traveling public."
(Exhibit 5)
On May 20, 1993, Dave and Judee Patterson appealed the decision of the Community Council to The Island Regulatory and Appeals Commission (Exhibit 3).
On July 12, 1993, the Commission advised both parties by letter that in order for the Commission to reach a fair and reasonable decision, additional information on severance of the lot and sight distance will be requested at the hearing.
The Commission heard the appeal on July 20, 1993, in Lower Montague.
II. EVIDENCE AND ARGUMENTS
A. Appellants
Arguments for the Appellants can be summarized as follows:
Dave Patterson stated that after purchasing the property in 1986 from Fred MacKenzie, he applied for and received a culvert from Bill Hicken, Chairman of the C.I.C.
Mr. Patterson stated that in 1993 he had spoken to Niall MacKay, Property Development Officer, and was instructed to contact Gordon MacKenzie to determine if he could place a mini-home on the lot. Mr. MacKenzie informed the Appellant that a mini-home was not permitted. However, upon examination of the Zoning and Subdivision Bylaws by Niall MacKay, it was determined that a mobile home is permitted in a Rural Residential (R1) Zone.
In his letter of appeal, Mr. Patterson states: "There has been a number of new lanes put in on this road in this same area since ours and it is not a busy road, mostly neighbours, the school bus and the postman. You can only travel in a car around this corner, well below our lane, at less than 20-25 MPH and by the time you get up to our area you could get stopped very easily."
Mr. Patterson argued that it was unreasonable for Council to deny him a mobile home permit as the road is quiet and should be considered a dead-end road—"The road is like a horseshoe and traffic is limited". The Appellant conducted a "survey" of drivers travelling the road and stated that all drivers indicated they could stop if a vehicle was coming out of the driveway. The Appellant argued that he can't see why he should be denied a permit—one more lane should not cause any more of a hazard.
In conclusion, the Appellant stated that the property was recently appraised for $10,000.00 by Lank Reality, and he "can't see why he would be turned down and possibly lose $10,000.00".
B. Community
Arguments for the Community can be summarized as follows:
The decision to deny the mobile home permit was made by Council based on the recommendation by Niall MacKay, the Property Development Officer. Council believed that Mr. MacKay's recommendation was based on the minimum sight distance standards as set by provincial regulations. Although Council could issue a variance, it was not justified in this case as the variance was too great, therefore, they felt "obligated" to uphold Mr. MacKay's recommendation. Council relied upon Section 3.7 of the Community Bylaws to deny the application.
With respect to the severance of the lot, Council argued that they could not find any record of the property being subdivided, pursuant to the Community Bylaws.
III. DECISION
Having considered the evidence presented during the hearing, the Commission decided to issue an Interim Order. The reasons are as follows:
The Commission finds that despite its efforts to assist both parties in presenting information before the Commission (i.e. on July 12, 1993, a letter was forwarded to Messrs. Gordon MacKenzie and Dave Patterson directing each to address the issues of severance of the lot and sight distance), the Commission was not provided with sufficient evidence to make a determination on this appeal. Specifically, the letter of July 12, 1993 requested the following additional information to be provided at the hearing:
Severance of the Lot
Information should be provided with respect to the circumstances surrounding the severance of the lot from the parent parcel including the date of the severance and whether or not approval of the lot was required, applied for and received.
Sight Distance
Information including the minimum sight distance standard considered acceptable by the Council and the sight distance at the safest location along the frontage of Provincial Property No. 707141. Also, has sight distance been an issue in the development of other lots in the immediate area?
However, no information was provided to the Commission to indicate that Council knew whether or not Niall MacKay had visited the site, what, if any, measurements were taken, how much of a sight distance problem existed, and whether or not any alternative location on the lot would be acceptable.
During the hearing, those Councillors present informed the Commission that they had been provided the information relative to the appeal only two hours prior to the hearing and therefore were not well prepared. Although the Commission commends these Councillors for their frankness and efforts to assist, the Commission is unhappy with Council for not ensuring that the decision of Council and the reason for this decision were presented in a manner which would enable the Commission to make a reasonable and fair decision. The Councillors present did their best but simply didn't have the required information for the Commission.
The Appellant also failed to provide the proper evidence to enable the Commission to make a decision, by not providing the Commission with evidence to indicate (1) that the lot was severed in compliance with community bylaws and (2) whether sight distance was complied with.
In addition, at the request of both parties the hearing was heard in Lower Montague and, although the Commission obliged and held the appeal in the Community, neither the Chairman of Council—whom staff report was adamant that the appeal be held in the Community in order for him to attend—nor the representative from the Department—whom Council based their "opinion" on—appeared before the Commission. It is incumbent upon all parties appearing before the Commission to properly present their case and have the necessary witnesses present to give evidence and information to defend their position.
The Commission points out that delays and continuations of hearings are costly, and the taxpayers are the ones who pay. In this case we feel that a full and fair decision requires that further information be filed, even though this could have been accomplished at the main hearing since all parties knew the issues.
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 (Interim)
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;
AND WHEREAS the Commission has made an interim decision in accordance with the stated reasons;
NOW THEREFORE, pursuant to the Planning Act;
IT IS ORDERED THAT the Community and the Appellants submit additional information and evidence to the Commission on or before September 10, 1993, dealing with the issues of lot severance and sight distance as outlined in the Decision and Order attached.
DATED at Charlottetown, Prince Edward Island this 11th day of August, 1993.
BY THE COMMISSION:
Linda Webber, Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, Commissioner