Docket: LA93008
Order: LA94-01IN 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 William Coughlin (the Appellant) of Fortune Cove, against a decision of the Department of Provincial Affairs (The Department) to deny approval to subdivide a lot containing an existing potato warehouse from property (Provincial Property Number 34249) located in Fortune Cove, P.E.I.
DATED the 17th day of January, 1994.
John L. Blakney, Vice-Chairman
Debbie MacLellan, Commissioner
Michael Ryan, Commissioner
Order
Appearances
1. For the Appellant
William Coughlin the Appellant
2. For the Department
Gerald McMillan Property Development Officer
Reasons for Decision
I. BACKGROUND
In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs has the authority to approve proposals for the subdivision of land. Pursuant to Section 24(1) of the regulations:
Section 24(1)
No person shall subdivide one or more lots in any area until he has submitted a certified plan of survey thereof to the Minister and received a certificate of approval therefor from the Minister.
On March 25, 1993, William Coughlin applied for approval to subdivide property (Provincial Property Number 34249) to allow the severance of a lot with a potato warehouse situated on it. The dimensions of the proposed lot are approximately fifty (50') feet wide and one hundred and eighty-two (182') feet long or 9,100 sq. feet. The proposed side yards between the building and lot line are five (5') feet on each side. The property is located in Fortune Cove, Prince County, P.E.I. (Exhibit 14)
Gerald McMillan advised Mr. Coughlin that the proposed subdivision did not meet the requirements of the Planning Act Regulations with respect to lot size and width, and recommended that he submit a written request to the Department for a variance. On June 3, 1993, William Coughlin contacted the Department and requested "special consideration" under Section 9 of the Planning Act Regulations to allow the subdivision. (Exhibit 10)
On July 7, 1993, Gerald McMillan advised Mr. Coughlin that the Department was unable to approve the proposed subdivision because the proposed lot frontage and area are "much below" the Department's normal minimum requirements. (Exhibit 3)
On July 23, 1993, Mr. Coughlin appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit 2)
The Commission heard the appeal on Friday, August 27, 1993, in Summerside, P.E.I.
II. EVIDENCE AND ARGUMENTS
A. Appellant
Arguments for the Appellant can be summarized as follows:
On June 3, 1993, the Appellant notified the Department that he was in the process of scaling down his farm operation and requested special consideration under Section 9 of the Planning Act Regulations to subdivide an undersized lot with a potato warehouse on it. The proposed lot would be approximately 9,100 sq. ft. and have road frontage of 50 feet.
In his letter of appeal, Mr. Coughlin stated that "it is impossible to meet the requirements, due to location of other warehouse and house lot". (Exhibit 2) In addition, sufficient space is required around the warehouse to enable him to remove the snow and ice build-up in the winter.
Mr. Coughlin requested that the Commission consider the fact that the warehouse is approximately 17 years old and is used only for storing potatoes and additional land is not needed to accommodate a septic system. In addition, a frontage of 100 feet would allow a farmer to use the additional land to dump culled potatoes, which would detract from his residence. The lot was surveyed at a cost of $600 as part of a larger deal to sell land. The Appellant requests that the severance be approved in order to allow him to sell the lot in the future.
B. The Department
Arguments for the Department can be summarized as follows:
In the letter denying the Appellant's application, the Department stated that although the Planning Act Regulations have recently been changed to increase the minimum lot size requirements, they would consider a revised proposal that would meet the requirements which were in effect before changes were made to the Regulations. The Department was prepared to consider an application which would allow a lot size of 15,000 square feet and frontage of 100 feet. In addition, the Department acknowledged that the location of an adjacent warehouse somewhat restricts the available lot frontage, and would consider a minor variance from the 100 feet minimum.
The Department determined that the frontage and lot size were far below the frontage and lot size requirements of the Regulations and that a minor variance could not be applied. As a result the Department had no alternative but to deny the application.
III. DECISION
Having considered the evidence presented during the hearing, the Commission decided to deny the appeal. The reasons for this decision are as follows:
It is apparent that over the course of development of this farm property that buildings were located to serve a particular function for the farm operation and not for purposes of selling one of the buildings. The Appellant now finds himself in a situation where he believes it necessary for him to scale down his farming operation and to sever a lot to sell one of the buildings. In order to sever the lot and building from the main property the lot must first comply with the Planning Act Regulations. According to the evidence the proposed lot size and the frontage on the road is far below the standard required by the regulations.
Section 9 of the Planning Act gives authority to apply a "minor variance".
Section 9.(1)
The Minister may, for special cause, authorize such minor variance from the provisions of these regulations as in his opinion is desirable and not inconsistent with the general intent and purpose of these regulations.
Section 9.(2)
Applicants seeking a variance from the provisions of these regulations shall clearly document the grounds for special cause for the consideration of the Minister
The Commission finds that Mr. Coughlin's situation is not new. It is logical to think that at the construction stage, more attention is usually paid to what function farm buildings are going to serve the farming operation rather than to their possible sale. If more attention were given to the possibility of their eventual sale as independent units on individual lots then the appropriate land base would be allocated to the location of the building to allow proper subdivision within the standards set out by regulation. Instead in this case, because of the specific location of the potato warehouses, Mr. Coughlin cannot sever the lot containing the warehouse he wants to sell, in the manner proposed, and meet the Regulations for frontage on a public road and lot size without giving a significant variance.
In this appeal, the Commission must decide whether or not Mr. Coughlin's economic need to sell the subject warehouse is justification to allow a significant variance to permit subdivision of the lot. Based on the evidence the Commission must find against the Appellant.
The Commission finds that Mr. Coughlin is in a situation that results from the original decisions made to locate the potato warehouse in such close proximity to the adjacent warehouse and the house that he is left with a limited land base upon which the subject warehouse is constructed. The land area or proposed lot size and road frontage are far below the requirements of the Regulations. In the opinion of the Commission, if the subdivision were approved based on the proposed lot size and road frontage, the lot would not have any similarity to lots that meet the requirements. The Commission must agree with the Department that the proposed lot size and road frontage of the lot are too far below the standards to be considered a minor variance.
In certain situations a person can argue that a particular decision is injurious to them or as a result of the decision they will suffer undue hardship if special cause or a variance is not granted. Mr. Coughlin has made a similar argument, however, he is only willing to propose his preferred alternative:
. (Exhibit 2)"it is necessary to approve this lot, as there is no other alternative to enable me to sell this potato warehouse, as I have now gone out of farming"
Based on the evidence heard the Commission is not convinced that the Appellant has no other alternative to overcome the problem of undue hardship, if any, suffered by the denial of his present subdivision proposal. In the view of the Commission alternatives include increasing the lot size to meet the regulations or selling the other warehouse even though he has reasons for not doing so.
In conclusion, the Commission did not hear enough evidence to support allowing the appeal under Section 9 of the Planning Act Regulations or any other provision of the Regulations.
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 William Coughlin (the Appellant) of Fortune Cove, against a decision of the Department of Provincial Affairs (The Department) to deny approval to subdivide a lot containing an existing potato warehouse from property (Provincial Property Number 34249) located in Fortune Cove, P.E.I.
Order
WHEREAS William Coughlin (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated July 23, 1993, against a decision of the Department of Provincial Affairs;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Summerside, P.E.I., on Friday, August 27, 1993, after due public notice;
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 17th day of January, 1994.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Debbie MacLellan, Commissioner
Michael Ryan, Commissioner