Order LA94-12 - LA94016 - Planning Appeal - Humbert Smets v. Union Road Community Council v. Union Road Community Council (Aug 11, 1994)

DOCKET LA94016
ORDER LA94-12

IN 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 Hubert Smets (the Appellant) against a decision whereby the Union Road Community Council (the Council) made a decision to deny permission to re-open a shale pit on Property Number 192518, located at Union Road, Queens County.

DATED the 11th day of August, 1994.

Linda Webber, Chairman
James Nicholson, Commissioner
Anne McPhee, Commissioner

Order

Appearances & Witnesses

1. For the Appellant

Hubert Smets the Appellant

2. For the Community

Albert Foster Councillor

Barry MacGillivray Councillor

Sandra Cullen Councillor

3. For the Pit Operator

John MacDougall Legal Counsel for Island Coastal Services Limited

Reasons for Order

I. BACKGROUND

In accordance with the Planning Act, the Union Road Official Plan 1988 and the Union Road Zoning and Subdivision Bylaws 1988, the entire Community is zoned Agriculture (A1).

Island Coastal Services was at one time issued an Excavation Pit Permit to operate an excavation pit on property number 192518 located on Rte. 221 in the Community of Union Road. The original permit was issued in 1991.

A statement of conditions required by Community Council for the issuance of the permit was dated June 25, 1991.(Exhibit 7)

This permit was renewed in 1992 and 1993. On April 21, 1994 Ian MacArthur, Administrator for the Community advised Chuck Gallison of the provincial Department of the Environment, by letter - "the Community Council has made the decision not to renew the permit for Hubert Smet's shale pit on the Union Road."

On June 15, 1994, Ian MacArthur informed Blair MacLaughlan from Island Coastal Services Ltd. -

The Community has voted not to grant the renewal of this Pit Permit. The Council felt that they had fulfilled their original agreement for the three year period of construction of the Charlottetown Perimeter Road section from Brackley Point Road to the Malpeque Road.

The land containing the pit area was to be made farmable in the original agreement and the Council now feels this land had more material removed from it than was necessary.

(Exhibit 5)

On June 17, 1994, Hubert Smets appealed the decision of Council to deny permission to re-open the shale pit. (Exhibit 4)

The Commission heard the appeal on July 19, 1994, in Charlottetown.

In the morning of July 25, 1994, the Director examined the property with Delmar Holmstrom from Agricultural Canada. All parties were represented at this time.

In the afternoon of July 25, 1994 the Commission received Mr. Holmstrom's evaluation of the site. This information was forwarded to all parties for their response.

II. ARGUMENTS

A. Appellant

The principal argument for the Appellant can be summarized as follows:

The Appellant contends further excavation of the pit will lead to an improvement of his farm property. Mr. Smets argued that his original request for a pit permit was necessary to allow him to remove a knoll located on his property - the knoll hindered his ability to farm the property.

Mr. Smets contends that further extraction will allow him to remove the shale and level the land which will lead to an improvement of the farm property.

B. Community Council

The principal arguments for the Community Council can be summarized as follows:

The Community denied permission to re-open the pit on the basis they had fulfilled their original agreement for a three year permit in connection with construction of the Charlottetown Perimeter Road section from Brackley Point Road to the Malpeque Road. As this section of the highway has been completed the Community decided to deny permission to re-open the pit.

During the hearing the Community also argued that further extraction of the pit would contravene Section 4.27 of the Bylaws - further extraction would not lead to an improvement of the farm property.

In addition, Council stated: "most residents of the Union Road Community have expressed their concerns and stated their complaints on numerous occasions over the environmental and safety factors applying to the pit area and access road" (Exhibit 5), but representatives were not able to elaborate upon this at the hearing.

C. The Pit Operator

Mr. John MacDougall, on behalf of Island Coastal Services Ltd., argued that further extraction would not contravene the Community's bylaws and would lead to an improvement in the farm property.

Mr. MacDougall stated that once the excavation is complete the top soil will be leveled over the property and the property will become usable farm land.

Mr. MacDougall contends that a pit permit should be granted.

IV. DECISION

The Commission has considered the arguments presented by all parties and has focused its decision on one major issue, and that is whether further excavation from the Hubert Smets shale pit contravenes the Union Road Zoning and Subdivision Bylaws.

The Commission understands that the Appellant is requesting a permit to continue extracting shale from his property.

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 excavation pit would be in contravention of a municipal bylaw.

The Community itself does not make the decision on whether or not a permit should be issued. This decision is made by the Minister.

The Commission understands, however, that as a matter of policy the Department of the Environment seeks input from community councils where a permit is applied for in that community.

In this situation the Commission is apparently being asked to decide upon the validity of the position taken by the Community of Union Road in this matter.

Pursuant to the provisions of Section 4.(1)(c) of the Excavation Pit Regulations:

4.(1) 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. (emphasis added)

As outlined in a letter to Mr. Chuck Gallison, the Community Council decided that they would not renew the permit for Hubert Smets' shale pit.

The entire Community of Union Road falls within the Agriculture (A1) Zone. Pursuant to the Special Provisions for the Agriculture (A1) Zone no building permit is required to excavate and as a result no approval is required by Community Council. Therefore, although Exhibit 6 states the Community made a decision to not renew the permit, the Community does not have the power to make this decision. It is a decision for the Minister to make.

During the hearing, Council representatives took the position that further excavation would contravene Section 4.27 of the Community Bylaws. This would be relevant to any decision to be made by the Minister. Therefore, the validity of this position will be reviewed by the Commission.

Section 4.27 states

In the Agriculture (A1) Zone, no person shall use any land or building except for:

- agriculture uses, including farm buildings or structures for livestock operations or the improvement of farm property; (emphasis added).

Therefore, the major issue before the Commission is to determine whether further extraction would improve the farm property.

On this matter, the Appellant, the Community and the pit operator presented conflicting evidence on this point. The Appellant's evidence was that such extraction would improve his farm property.

To assist in reaching an informed decision on this matter, the Commission requested an independent party to evaluate the site and determine whether further extraction would lead to an improvement of the property.

Mr. Delmar Holmstrom from the Land Resource Unit, Centre for Land and Biological Resources Research conducted the site evaluation. Mr. Holmstrom determined that the field overall is rated as class 3 (under the Canada Land Inventory Soil Capability Classification for Agriculture, 1965) with topography (the percent slope and the pattern or frequency of slopes) as the main limitation for annual crop production. The capability of the land in question can be improved (from class 3 to class 2) by leveling the field as long as the following conditions are met:

The topsoil (top 20 to 25 cms) and subsoil (remaining soil above the shale) would have to be removed and stored in separate piles. No removal of this material from the site should be permitted.

After shale removal, the site would have to be graded to allow adequate surface drainage.

The subsoil would then have to be spread over the site to a minimum depth of 60 cms.

After spreading the subsoil, the topsoil would have to be spread over the site to a depth of between 20 and 25cms. The whole site would then have to be graded to allow for adequate surface drainage.

The Community stated that its position was unchanged in the face of this report. The Appellant indicated satisfaction with the report.

On the basis of this independent evaluation and evidence heard at the hearing, the Commission finds that further excavation of the pit will improve the farm property and therefore is a permitted use under Section 4.27 of the bylaws. As the Commission has no authority to issue a pit permit, the Appellant will need to satisfy all other conditions imposed by the Minister of the Environment and any other applicable statutory requirements and the Minister must make the decision on whether or not to issue the permit.

IN 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 Hubert Smets (the Appellant) against a decision whereby the Union Road Community Council (the Council) made a decision to deny permission to re-open a shale pit on Property Number 192518, located at Union Road, Queens County.

Order

WHEREAS Hubert Smets (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), by written notice dated June 17, 1994, against a decision of the Union Road Community Council (the Council);

AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on July 19, 1994, 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 allowed and the shale pit operation sought by the Appellant is determined not to conflict with the bylaws of the Community if the following conditions are met:

The topsoil (top 20 to 25 cms) and subsoil (remaining soil above the shale) would have to be removed and stored in separate piles. No removal of this material from the site should be permitted.
After shale removal, the site would have to be graded to allow adequate surface drainage.
The subsoil would then have to be spread over the site to a minimum depth of 60 cms.
After spreading the subsoil, the topsoil would have to be spread over the site to a depth of between 20 and 25cms. The whole site would then have to be graded to allow for adequate surface drainage.

DATED at Charlottetown, Prince Edward Island, this 11th day of August, 1994.

BY THE COMMISSION:

Linda Webber, Chairman

James Nicholson, Commissioner

Anne McPhee, Commissioner