DOCKET LA94020
ORDER LA94-13IN THE MATTER of the Planning Act, R.S.P.E.I. 1988, Cap. P-8;
and
IN THE MATTER of appeals, under Section 28 of the Planning Act, by James F. Doyle and Dena M. Doyle; Richard F. Ablett and Joanne Cathcart; and Donald Watts and Maureen Watts (the Appellants) against a decision whereby the Department of Provincial Affairs (the Department) issued a building permit to locate a mobile home on Provincial Property Number 666065 in Suffolk, P.E.I.
DATED the 23rd day of September, 1994.
John L. Blakney, Vice-Chairman
James Nicholson, Commissioner
Anne McPhee, Commissioner
Order
Appearances & Witnesses
1. For the Appellants
James Doyle, Dena Doyle,
Richard Ablett, Joanne Cathcart,
Donald Watts and Maureen Watts the Appellants
2. For the Department
Don Walters Chief Development Officer
John Pickard Supervisor
3. For the Applicants
Catherine Parkman Legal Counsel for Michelle and David Buell, the Applicants
Michelle Buell Applicant
Reasons for Order
I. BACKGROUND
In accordance with the Planning Act, and the Planning Act Regulations the Minister has the authority to approve a permit to place a mobile home upon a lot or parcel.
Pursuant to Section 51.(1) of Planning Act Regulations
No person shall, except in the case of a mobile home court, place a mobile home upon a lot or parcel without a permit therefor issued by the Minister.
On June 10, 1994, Michelle Buell completed an application for a Mobile Home Permit. The parcel in question (Provincial Property Number 666065) is located along the East Suffolk Road in Dunstaffnage. (Exhibit 30)
On June 30, 1994, the Department of Provincial Affairs and Attorney General issued a Building Permit (Permit Number CM-013-94) to Michelle and David Buell to relocate a mobile home unit on parcel number 666065 located in the community of Dunstaffnage. (Exhibit 26)
On July 6, 1994 (date received by Commission), Dena M. Doyle appealed the decision of the Minister (Exhibit 18).
On July 8, 1994 (date received by Commission), Richard F. Ablett and Joanne Cathcart appealed the decision of the Minister (Exhibit 17).
On July 11, 1994 (date received by Commission), Donald and Maureen Watts appealed the decision of the Minister (Exhibit 19).
On July 13, 1994 (date received by Commission), James F. Doyle appealed the decision of the Minister (Exhibit 16).
The Appellants agreed to have a joint hearing of their appeals.
The Commission heard the appeals on August 30 and September 7, 1994 in Charlottetown.
II. ARGUMENTS
A. Appellants
The principal arguments for the Appellants can be summarized as follows:
The Appellants contend that pursuant to the provisions of Section 53 of the Act the Minister failed to consider the interests of the majority of property owners in the subdivision and failed to consider the detrimental effect on the subdivision.
On the first issue, the Appellants argue the Minister failed to determine whether the majority of property owners in the subdivision objected to the permit. The Appellants contest the narrow interpretation of the definition of subdivision taken by the Minister and argue that other adjacent landowners who may be affected by this development should have been consulted prior to the issuance of the permit. If other landowners were consulted prior to the issuance of the permit, the Department would have determined the majority of landowners adjacent to the subject property are opposed to the relocation of the mobile home.
On the second issue, the Appellants argue the Minister failed to assess whether the placement of the mobile home would have any detrimental effects on adjacent landowners. On this matter, the Appellants believed it reasonable to conclude that the mobile home would have a detrimental effect on the valuation of their properties.
In addition, the Appellants argued that the application for the permit should have been denied as it contravened some of the provisions of Section 15.(1).
For the reasons stated, the Appellants contend the decision of the Minister must be overturned and the building permit denied.
B. Department
The principal arguments for the Department can be summarized as follows:
The Department argued the application for a building permit to locate a mobile home on the subject property complied with all the requirements pursuant to the provisions of the Planning Act and Planning Act Regulations.
The Department stated that with respect to the provisions of Section 53 of the Act, the Minister was satisfied that the majority of property owners in the subdivision had no objections to the placement of the mobile home. Pursuant to Departmental policy they had interpreted the "subdivision" to include the subject property and only those properties which were included in the immediate plan of subdivision (#9168B). Thus the Minister was satisfied that two of the three property owners in the subdivision did not object to the issuance of the building permit.
On the matter of determining detrimental effect, the Department stated that pursuant to Departmental policy the Development Officer determined that the age of the mobile home, the size of the mobile home and the fact the unit was factory built was enough to determine that the placement of the mobile home would not have a detrimental effect on the subdivision.
The Department contends the application for a building permit met the necessary statutory requirements and as a result they had no reason to deny the application.
C. The Applicants
The principal arguments for the applicants can be summarized as follows:
Ms. Parkman argued on behalf of the Applicants that the issuance of the building permit complied with the provisions pursuant to the Planning Act and the Planning Act Regulations and for this reason the decision of the Minister must be upheld.
IV. DECISION
In deciding appeals pursuant to Section 28 of the Planning Act the Commission cannot make new laws; rather, it must reach the best decision it can within present laws, in this case the Planning Act Regulations.
The Commission recognizes that the urban and rural areas of Prince Edward Island have not escaped the controversy associated with the acceptance of mobile homes as an affordable form of single family dwelling. Urban communities of the province have, for the most part, limited the location of mobile homes to mobile home courts through their Zoning and Subdivision Control Bylaws.
John Pickard's chronological description of the evolution of the regulatory approach to the location of mobile homes in rural areas demonstrates a change in political attitude over time. Mr. Pickard stated:
When I first came to work for the Department in 1967 we constantly heard the argument that mobile homes had a detrimental effect on surrounding properties and the Department attempted to control the location of them by specifying certain roads where they couldn't be located, those were generally main roads like the Trans Canada Highway, Route 2 and some of the major arteries in the Province. I can't remember exactly when that came to an end but it came to an end because there were so many people wanting to use mobile homes as a ... way they could afford of having a permanent home to live in and everywhere they wanted to put them we would have these arguments about the detrimental effect on property values and there always seemed to be at least as many people in the surrounding areas saying "I have no objection, I have no objection". ... Eventually the policy was changed and we started to treat mobile homes the same as single family dwellings. They could be located anywhere single family dwellings could be located and the main considerations were that you have a lot that could have a safe driveway, there were no drainage problems, the same things we taken into consideration on any lot and it seems to have worked fairly well.
It is evident to the Commission that the present day Planning Act Regulations consider the mobile home to be a single family dwelling, despite the fact that Part VII — Mobile Homes requires a permit be issued for placement of a mobile home on a lot and special consideration by the Minister responsible for issuance of a permit.
It is evident from Mr. Pickard's statement that inherent in the history of mobile home regulation is the Appellant's concern that mobile homes will have a devaluing effect on neighboring higher-valued single family dwellings or residential properties.
In response to this, the Planning Act Regulations do not prohibit mobile homes in rural areas but make special provision for allowing one to place a mobile home on a lot approved for single family dwelling use.
What is important about the observations of Mr. Pickard is that the historical focus has been on the aesthetics of the mobile home and the associated devaluing effect on adjacent properties that together equate to a detrimental effect on neighboring properties. The attitude was that mobile homes are an acceptable form of housing, but only in the right place. Frequently, as in this case, the argument by those adjacent property owners who object to mobile homes in their neighborhood is based on a belief that they bought into a single family dwelling area within which mobile homes, no matter their condition, would not be comparable to the quality of housing in the area. These comparisons are based on such factors as square footage, property assessment and/or market value.
It is evident from the statement of Mr. Pickard that the authors of the present regulations understood the implications related to the location of mobile homes outside of mobile home courts but accepted the mobile home as an alternative form of single family dwelling for rural areas. In fact, they developed special regulations that in effect allow the Minister to deliberately interfere with any perceived rights of owners of property within single family dwelling subdivisions that might translate into the prohibition of the placement of mobile homes on lots within the subdivision. Section 53 states:
53. The Minister may issue a permit authorizing the placement of a mobile home on a lot in a subdivision approved
(a) for single family dwelling use only;
...
if he is satisfied that the majority of the owners of property within the subdivision do not object thereto and that the placement will not have a detrimental effect on the subdivision.
Clearly Section 53 gives the Minister authority to issue or grant a permit to place a mobile home on a lot in a subdivision approved for single family dwelling use. Not only does the regulation by definition ensure that mobile homes are to be treated as single family dwellings (s.3(e) states single family dwelling unit includes a mobile home and a single family dwelling), but Section 53 further reinforces the acceptance of mobile homes for single family dwelling use provided certain conditions set out under the section are satisfied.
Therefore, in this appeal the Commission's responsibility is to satisfy itself that these conditions were met and the Minister gave them proper consideration. The regulations clearly are not against mobile homes; they simply require some special circumstances to exist before they will be allowed.
Determination of Majority:
First the regulations require the Minister to satisfy himself that the subdivision is approved for single family dwelling use only and the majority of owners of property do not object.
The Appellants argued that the Minister could not have properly satisfied himself on the issue of majority because he took too narrow a view and only considered owners of property associated with lots #1, #2 and #3 in plan of subdivision #9168B. The Appellants believe that there is an adjacent land owner and neighborhood if not a community interest that must be considered. The simple attainment of a majority is not sufficient.
After considerable reflection on Section 53, the Commission cannot agree with either interpretation. In determining whose opinion should be taken into consideration the regulation requires the following:
- that there is a parcel of land divided by means of a plan of subdivision, plan of survey, agreement, deed or any instrument, including a caveat, transferring or creating an estate or interest in part of the parcel;
- that a subdivision of the parcel exists and is approved for single family dwelling use only; and
- that the owners of property within the subdivision are owners of a lot or lots approved for single family dwelling use only.
Based on these requirements the relevant question is which owners of property should the Minister have taken into consideration in determining the opinion of the majority?
The first requirement is to determine what parcel has been subdivided. It is clear from the documents submitted that the parcel from which lots #1, #2, #3, #4 and the Richard Ablett and Joanne Cathcart-owned-lot or lots were subdivided is #655951.
The Commission is not prepared to agree with the Department's policy that the only lots to be considered in determining the majority are those lots approved at the same time as the lot under consideration. There is nothing in the regulations that would lead the Commission to reach this conclusion.
The Commission believes that the purpose for determining the opinion of the majority is to simply seek the opinion of those owners who have acquired a direct interest in property within the subdivision. The boundaries are not limitless but encompass that part of a parcel that has been approved for subdivision and is to be used for the development of single family dwellings. In the opinion of the Commission, the Department's interpretation that the opinion of those property owners in the 1st phase of a subdivision of a parcel would not be solicited if a mobile home were to be placed on a lot in the 2nd phase of the subdivision of the same parcel fails to consider that the subdivision of both phases is from the same parcel. It fails to consider the interests of all owners of property who bought lots divided from the parcel for single family dwelling purposes. Consequently, if one extends the Department's policy it is conceivable that after the 1st phase has been approved and lots have been sold, then the development of the remainder of the parcel could systematically be approved for placement of mobile homes by the division of one lot at a time. The only opinion the Minister would seek is the owner of the new lot. The Commission does not believe that the intent of the regulation is to be that limited. The limits are the boundaries of the whole parcel being subdivided and that part of the parcel approved for single family dwelling use.
In the result, the Commission finds that the opinion of the present owners of lots #1, #2, #3 and #4 must be considered, since they have been subdivided from the same parcel of land which appears to have existed at the time the Planning Act Regulations were adopted in 1977.
Although the evidence is unclear as to when the lots comprising the property owned by Richard Ablett and Joanne Cathcart were created, and whether they were approved for single family dwelling use, from a study of exhibit #9 it can be concluded that their property was also subdivided from parcel #655951. According to the evidence, a single family dwelling is located on the property and the Commission assumes that a building permit was issued by the Minister pursuant to provisions of the Planning Act Regulations for a single family dwelling, presumably a permitted use of the property. Consequently, the Commission concludes that the lot or lots comprising that property must be considered a part of the subdivision that contains lot #1.
In regards to the remaining 9.36 acre parcel owned by Gordon Coles, Clifford Coles, Sterling Coles and Mrs. Thomas McCombs there is no evidence that the parcel has been approved for single family dwelling use. Therefore, the parcel cannot be included in the subdivision for purposes of Section 53.
The Commission recognizes that the number of owners of each lot ranges from 1 to 2 and the regulation is unclear as to how many owners of the same property are to be considered. A reasonable interpretation must be applied. If one concludes that all owners of property are to be considered or that each individual that has an ownership interest in the property has a vote then it is conceivable that one could have a possible situation where 5 owners of one lot in a four lot subdivision could control the majority of the other three lots that are each owned by different single owners. In the view of the Commission this would establish an unfair advantage and one not intended by the regulations. Consequently, for purposes of determining the opinion of the majority only one objection or favorable response can be registered per property. Property would include one lot or group of lots approved for single family dwelling use.
Dena and James Doyle have argued that the Minister should have taken an even broader view and asked for their opinion and others on the placement of the mobile home. The Commission certainly appreciates the Appellant's arguments that even the owners outside of the subdivision are at risk if the development of land within the vicinity of their property will have a negative impact. However, the Commission finds that this argument goes beyond the intent of Section 53. The property owned by the Doyles was not a part of the parcel and therefore was not a property within the subdivision.
Following from the above, the Commission concludes that the Minister did not give proper consideration to all relevant owners of property. However, the Commission believes that it would not be in the interest of fairness to quash the decision of the Minister to issue the permit to the Buells. The Commission believes that based on the relevant documents filed that it can make a determination on the issue of majority without sending the matter back to the Minister.
Based on the submissions filed, the Commission has considered the position of the following owners of property on the matter of placement of the mobile home on Lot #1.
(1) The owners of property owned by Richard Ablett & Joanne Cathcart object to the proposal.
(2) The owners of lot #1, Thomas & Vera McCombs approve.
(3) The owner of lot #2, John Shreenan, approves.
(4) The owners of lot #3, Donald & Maureen Watts object.
(5) The owners of lot #4, Lorne & Gail Barthe approve.
Therefore, pursuant to Section 53, the Commission is satisfied that there are 3 in favor of the placement of the mobile home and 2 objections and concludes that the majority do not object to the placement of the mobile home on lot #1.
Therefore, the appeal cannot be allowed on this point.
Detrimental Effect
It is the Commission's view that even though a majority of the owners do not object to the subdivision, the Minister must give consideration to the issue of detrimental effect firstly on those who object and secondly on the future of the subdivision.
The Commission believes that it is generally understood that a $16,000 mobile home may have a devaluing effect on properties within its sphere of influence just as a permanent dwelling valued at $60,000 might have a devaluing effect on a nearby house valued at $300,000. The issue is to what degree do they impact negatively and is this what is meant by "detrimental effect" in the regulations?
The Commission agrees that people have had trouble accepting mobile homes in subdivisions or next to lots containing conventional-style permanent single family dwellings. However, it is clear that in this province and in areas without official plans, the legislators have decided that the mobile home is an acceptable form of single family dwelling.
Considering this general acceptance, the Commission believes that the parameters of detrimental effect must go beyond factors of devaluing and marketability before the Minister can deny a permit.
Historically, and in this case, the Department has set a minimum standard that a mobile home must fail to meet before a permit can be denied as a result of detrimental effect. Consideration of such factors as size of the unit, its age, who the vendor is and whether or not it is factory built form the basis of the minimum standard. In fact, Mr. Walters described situations where permits were refused where the units were practically uninhabitable. There is no substantive evidence that the mobile home that is the subject of this appeal is of a similar condition to those denied by the Department in the past.
Because of the character of their construction:
(s.3 "mobile home" means a transportable dwelling unit suitable for long term occupancy, designed to be transported on its wheels and chassis... .)
mobile homes can be easily moved from one location to another. Based on the practice of the Department, the Commission concludes that the Department views Section 53 as an insurance against someone deliberately transporting a dilapidated, uninhabitable unit onto a lot approved for single family dwelling use. Considering the level of acceptance of the mobile home, it is therefore reasonable to think that the purpose for the regulation is to allow the owners of property an opportunity to object and the Minister to refuse issuance of the permit under circumstances where the unit is dilapidated and unsuitable for long term occupancy.
What is particularly problematic about the issue of detrimental effect is that it is a highly subjective concept—what is detrimental in one person's view may not be detrimental in the view of another. The Commission therefore must recognize that the mobile home is an acceptable single family dwelling unit under the regulations. As a result of that acceptance the Commission finds that the Minister's interpretation of detrimental effect is reasonable. The Commission can find no substantive basis for concluding that the Minister's interpretation of detrimental effect is unreasonable.
Section 15(1)
Although the Commission has found that Dena and James Doyle cannot be considered owners of property within the meaning of Section 53, they have clearly stated that they are aggrieved by the Minister's decision. The Appellants argued that the permit to place the mobile home on lot #1 should not have been issued because it contravened the following parts of Section 15(1) of the Planning Act Regulations.
15(1) No building permit shall be issued where, in the opinion of the Minister, the proposed building or structure, or its alteration, repair, location or use or change of use
(a) does not conform to
...
(ii) any other regulations made under the Act, the Provincial Building Code or respecting fire prevention, or
(b) would be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public;
...
(d) would result in undue damage to the natural environment;
(e) would have a detrimental impact on surrounding land uses; or
(f) would result in a fire hazard to the occupants or to neighboring buildings or structures.
The Appellants argue that the decision of the Minister "denies maximum convenience, creates a land use conflict, lacks promotion of Good Quality of residential neighborhood and penalizes the risktakers of society". To agree with their argument and find that the placement of the mobile home would contravene any of the provisions of Section 15(1) would require the Commission to substitute the Minister's opinion with its own. In order for the Commission to do this, the evidence put forward must demonstrate that the Minister's opinion is unreasonable or based on the wrong factors. Based on the Commission's interpretation of the purpose of Section 53 with respect to detrimental effect, the general acceptance of the mobile home in rural areas of the province, and the evidence submitted we find no reason to quash the Minister's decision under section 15(1)(b)(d) or (e).
Joanne Cathcart informed the Commission that in her position as an RCMP officer she witnessed occurrences and has had access to information that would lead her to believe that mobile homes are highly susceptible to fire. Even if the Commission accepts her opinion there are other laws in the province that specifically govern fire safety that would prevent the Minister from issuing a permit that would result in non-compliance with Section 15(1)(a)(ii). Although Joanne Cathcart gave opinion evidence on the dangers associated with mobile homes there is no evidence before the Commission that the mobile home unit that is the subject of this appeal contravenes subsection (ii) or would (f) result in a fire hazard any more than any other mobile home.
Therefore, the Commission finds that it cannot allow the appeal on these grounds.
The Commission is not surprised that the Appellants believed that when they purchased in a rural area, in a primarily single family dwelling neighborhood in a rural setting, that they expected that new residential developments would be of a similar type and quality. The problem is that they mistakenly believed that the Planning Act Regulations guaranteed that new developments in the vicinity would be equivalent to or exceed the quality of developments that already exist, such as the square footage standard that has been set by other housing developments. The Commission can find no such guarantee given under the regulations. Usually when people want to buy into such guarantees they purchase lots in subdivisions that have special covenants attached to the deeds of conveyance of lots in the subdivision. These special covenants ensure a certain quality of development that is not guaranteed under the jurisdiction of the Planning Act Regulations.
As stated at the outset, in deciding this matter the Commission must make its decision within the present regulations and cannot create its own regulations. Clearly, the regulations allow the placement of mobile homes on lots approved for single family dwelling use. If there is some degree of devaluing or negative implications for marketability of adjacent properties caused by mobile homes in general, then it is the intent of the regulations to allow this situation to occur. In the same way, the regulations allow a single family dwelling of conventional construction to have a similar effect.
The Commission finds it interesting to note that according to the evidence of the Department, mobile homes are no longer being built and standards have been increased in the form of minihomes and modular homes. However, the regulations have not been changed to reflect such technological and architectural advancements in the housing industry. The Commission must interpret this to mean that mobile homes are still an acceptable type of single family dwelling and allowable within the limits of the regulations.
In conclusion, the Commission finds no basis for quashing the decision of the Minister; therefore, the appeal is dismissed.
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeals, under Section 28 of the Planning Act, by James F. Doyle and Dena M. Doyle; Richard F. Ablett and Joanne Cathcart; and Donald Watts and Maureen Watts (the Appellants) against a decision whereby the Department of Provincial Affairs (the Department) issued a building permit to locate a mobile home on Provincial Property Number 666065 in Suffolk, P.E.I.
Order
WHEREAS James F. Doyle and Dena M. Doyle; Richard F. Ablett and Joanne Cathcart; and Donald Watts and Maureen Watts (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission) a decision of the Department of Provincial Affairs (the Department) and consented to a joint hearing of their appeals;
AND WHEREAS the Commission heard the appeals at a public hearing conducted at Charlottetown on August 30 and September 7, 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 appeals are hereby dismissed.
DATED at Charlottetown, Prince Edward Island, this 23rd day of September, 1994.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
James Nicholson, Commissioner