DOCKET LA93021
ORDER LA94-04IN 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 Cavendish Gulf View Cottages of Cavendish (the Appellants) against a decision whereby the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Resort Municipality) issued a building permit to Clark and Louise Johnston for a rental cottage and swimming pool on parcel (Provincial Property Number 706762) located in the Resort Municipality.
DATED the 25th day of May, 1994.
John L. Blakney, Vice-Chairman
Mike Ryan, Commissioner
Myrtle Jenkins-Smith, Commissioner
Order
Appearances & Witnesses
1. For the Appellants
Jim MacLean Owner, Cavendish Gulf View Cottages
Valerie MacLean Owner, Cavendish Gulf View Cottages
2. For the Resort Municipality
Arnold Smith Chairman, Planning Board
Reasons for Order
I. BACKGROUND
In accordance with the Planning Act, the Official Plan for the Comprehensive Development of the Cavendish Planning Area and the Resort Municipality Zoning and Subdivision and Control Bylaw, the Community Council of the Resort Municipality has the authority to approve or deny the issuance of building permits.
On September 22, 1993, Louise Johnston completed an application for a building permit and submitted it to the Resort Municipality for approval. The application was to construct a rental cottage and heated pool and hot tub on property (Provincial Property Number 706762). (Exhibit 13)
On October 18, 1993, Betty Pryor, Administrator for the Resort Municipality, advised Mr. and Mrs. Johnston that the application was denied, stating:
Based on Planning Board's recommendations and the following sections of the Resort Municipality Zoning and Subdivision Control Bylaw, Council has denied your application:
Section 1 of Appendix B indicates that arrangements have to be made concerning the "control of noise, glare, odour, or other potentially adverse effects of the proposed use on nearby property, and screening or buffering to alleviate such affects".
Section 41(5)(a) - "Minimum building separations shall be 20 feet"
Ms. Pryor also stated:
Council agreed that should you wish to submit an amended plan indicating the side yard for the pool and deck as a minimum of 15' and the distance between accessory building and hot tub as a minimum of 20', a permit may be issued provided that requirements of the Fire Marshall and Department of Health being met.
(Exhibit 7)
On October 20, 1993, Clark and Louise Johnston submitted a revised plan for Council's consideration. (Exhibit 6)
On October 25, 1993 Council for the Resort Municipality issued a building permit to Clark and Louise Johnston, subject to:
The proposal being developed in accordance with the attached plan.
Requirements of the Department of Tourism and Economic Development, the Provincial Fire Marshall and the Department of Health being met.
The pool being surrounded by a fence or a wall not less than 6 feet in height, equipped with a gate or a door of equal height and employing a child proof latch mechanism.
(Exhibit 5)
On October 25, 1993, Betty Pryor notified the neighboring property owner, James MacLean, that a building permit was issued to Clark and Louise Johnston. (Exhibit 4)
On November 3, 1993, Valerie MacLean appealed to The Island Regulatory and Appeals Commission, the decision of the Resort Municipality to grant a building permit to Clark and Louise Johnston. (Exhibit 2)
The Commission heard the appeal on March 1, 1994, in Charlottetown.
Subsequent to the hearing, the Commission received additional information from the Appellant, Council, and Clark and Louise Johnston. This information was forwarded to all parties and written comments were received.
II. EVIDENCE AND ARGUMENTS
A. Appellants
During the hearing the Appellants stated the appeal was not based on a "neighbor to neighbor issue", but on their concerns that the rules, which are in place to protect property owners, were not adhered to. Their appeal focuses on three major concerns:
1. Waste water disposal from the pool
In approving the building permit, the Appellants questioned whether Council considered the potential effects waste water from the pool may have on the groundwater supply. The Appellants expressed concern for the potential long term effects created by chemicals in the pool which will be released when "back-washing" and draining the pool.
2. Noise
The Appellants believe Council did not adequately consider, nor did they recommend, adequate provisions to buffer the potential noise from the pool area.
The possible noise emanating from the pool area and the pool circulation pump may be a nuisance to people staying at their motel. The distance between the pool and the Appellant's motel units is approximately 30 - 40 feet - the recommended side yard is not adequate to buffer the potential noise.
3. Purpose of Issuing a Building Permit
The Appellants stated that the building permit was issued on October 25, 1993, however development of the pool had commenced prior to this date. By issuing the permit, Council failed to take the necessary measures to deal with this issue.
In the administration of the Community's bylaws, Council had a responsibility to consider the environmental impacts and the potential noise problems associated with the pool area. Council failed to consider these matters and as a result did not comply with the intent of the Official Plan and implementing bylaws.
The Appellants stated it was not their intention to have the pool removed, however, they did want some assurance from Council that the waste water is disposed of properly and the potential noise from the pool area will be adequately buffered.
B. Resort Municipality
The primary arguments for Council can be summarized as follows:
In considering the application for the building permit, Council determined that the cottage met the requirements of the regulations but the pool did not. As a result, pursuant to the provisions of Section 41.5(A) and Section 1 of Appendix B of the Official Plan, the application was denied.
Mr. Smith stated during the hearing that "Council found themselves between a rock and a hard place" - They had an applicant who wished to begin construction as soon as possible. They had a system that took some time to deliver a building permit that was not moving quickly enough to suit the applicant's wishes. They had issues with regards to noise from the pool and location of the pool and they tried to deal with these as best as they could by turning down the initial building permit and then making specifications for the applicant to meet. They determined that the side yard should be increased and informed the applicant that if they met this recommendation, the application would be approved. Subsequently, the plan was revised with the sideyard being increased from 5 feet to 15 feet and a building permit was issued.
With regards to environmental issues, Council assumed there would not be any concerns, as pools were in existence in the area for a long period of time without any problems. As a result Council felt it was not necessary to consult with the Department of Environmental Resources.
II. DECISION
After reviewing the Official Plan for the Resort Municipality it is abundantly clear to the Commission that concerns over the environmental welfare of one of the more significant tourist destination areas of the Province of Prince Edward Island is the fundamental reason for the community adopting an official plan. Concern over haphazard development and such matters as public health and safety helped to expedite the planning process pursuant to the Planning Act to provide local residents, land and business owners with the authority to determine the future of the area within the municipal boundary. As the Official Plan states at page 10 section 4. To protect the environment:
Within the Planning Area a more efficient land use management system is needed to protect existing investments and to assist in guiding future development opportunities.
The Commission understands that the adoption of the official plan and bylaws by any community council means that it is prepared to accept a public trust to ensure that the goals of the plan are achieved.
Consequently, the Community Council of the Resort Municipality adopted an ambitious official plan and bylaw. The mandatory requirements for information that a site plan is to contain, the mandatory principles to apply to all site plan designs, together with a mandatory site plan review process with clearly stated requirements, should serve to provide some comfort to the public. Comfort in the fact that the public interest, the welfare of adjacent land owners and the entire community, its land base, its environment and its public health are protected.
This point is highlighted under one general goal of the Official Plan:
The land use management system must be fair and justifiable. ... Everyone should know what the developer has to do to obtain approval, and there should be a certainty that if the developer does those things, the proposal will be approved. Likewise everyone should be confident that if the requirements aren't met, the proposal will be denied.
(at p.7)
It is when the council and the developer fail to comply with the requirements of the Bylaw that the public trust is compromised and residents, business people and the general public become concerned. Public concerns or those of adjacent land owners are justifiable if developers are able to complete their developments without first obtaining building permits, when councils fail to adequately require that the developer meet the requirements of the bylaw or to acquire information necessary to reach an appropriate decision.
In making this decision consideration is given to the fact that the Appellants are not asking the Commission to grant relief that would result in the removal of the pool structure from its present location but to alleviate adverse impact from pool and associated activities.
Based on the evidence, the Commission finds that on a number of technical points the Applicant failed to provide information to the Council as required by the bylaw and in turn Council failed to require the Applicant to provide that information.
Section 37 of the Zoning and Subdivision Control Bylaw - Site Plan Requirements requires that:
Every application for a building or structure within the Municipality shall be accompanied by a site plan developed in conformity with the Site Plan Requirements outlined in Appendix B, Section 1 of the Bylaw. (Emphasis Added)
The Applicant did file an application and site plan in accordance with Section 37. However, Section 1 of Appendix B, and Site Plan Considerations subsection (d) requires that the site plan demonstrate to the satisfaction of the Council that adequate provision and arrangement has been made concerning:
d) Control of noise, glare, odour, or other potentially adverse effects of the proposed use on nearby property, and screening or buffering to alleviate such effects.
It is clear from the minutes of both the Planning Board and Council that noise was of primary concern and upon the recommendation of the Board, Council decided to require a 15' side yard instead of a 5' side yard as set out in the site plan. The Commission fails to understand how the addition of 10 feet to the side yard will alleviate any adversity caused for the Appellant resulting from the potential noise—that both the Board and Council believed can be very distracting to people not using the facility—without considering other methods to muffle the noise.
It is the view of the Commission that the Applicant failed to provide information that meets the technical requirements of the site plan. According to the Bylaw the site plan shall be prepared to contain information on:
d) existing and proposed contours
Although the Applicant did provide information on the direction of slope and described it as slightly on the site plan, the Commission does not believe such a notation meets the requirements for existing and proposed contours. It is the Commission's view that the requirement is for the actual contour lines to be shown on the site plan with the changes to the contour of the land also illustrated by lines. In this case, the Applicant failed to comply with this bylaw requirement and Council failed to require the proper information.
It is the Commission's opinion that the Applicant failed to provide information on:
h) a designation of required buffer screens (if any)
However, Council failed to require such information when it was so concerned over the noise factor.
The bylaw requires that every application be filed with a site plan containing:
i) existing landscaping that will be retained and proposed landscaping shall be differentiated and shown
Again the Applicant failed to provide information on landscaping details and Council did not refer the application back for further details.
Although the site plan does indicate the location of the well facility the site plan does not indicate the location of the sewage collection and disposal facility as required under subsection l:
l) location of underground sewer and water utilities.
Council is also required to apply specific principles to site plan designs under the General Site Plan Design Principles contained in Appendix B. Specific to this case is subsection b:
b) Site new developments to ensure that adjacent properties have visual privacy as well as protection from new development's site illumination, noise and odor, if applicable. (Emphasis Added)
It is apparent from the evidence that even though Council and Planning Board clearly demonstrated a concern for potential noise and the distraction associated with pool activities very little attention was paid to possible alternatives to maintaining the principle contained in subsection b.
Presumably, the information requirements under the Bylaw exist to ensure that Councillors and the Administrator can reach informed decisions and ensure that no aspect of the application violates the provisions of the Bylaw. Therefore, the question for the Commission is: Does the absence of this information cause the permit issued by Council with certain conditions to be invalid? Although, the use of the word shall is usually considered a mandatory provision, in this particular case the Commission finds that, with exception to the requirements for control of noise, it can be concluded from the evidence of Arnold Smith that even if the information that was absent was available there is no reason to believe that the Council would reach a different decision.
However, the Commission cannot agree with Council that the Applicant made adequate provision for dealing with the control of noise or other potentially adverse effects related to the pool. When one considers the proximity to the adjacent property owner's motel facility and the concern the Planning Board and the Council had for the noise factor, the Commission is somewhat bewildered as to how the Council could reach the conclusion that adding 10' on to the side yard could control or muffle noise to the degree necessary to mitigate any adverse effects.
The Official Plan (at p.10) is very clear on the Community's policy on the need "To create buffer zones separating incompatible land uses. ... to ensure one use will not detract from the enjoyment and functioning of adjoining uses." The Commission agrees with the Planning Board and Council that pool activity can result in very distracting noises but we do not agree with the Council's method of mitigating the adversity on the adjacent uses. Section 11, subsection (1) Conditional Permits states:
1) Council may attach such conditions to a permit as are necessary to ensure conformity with any law, regulation, or bylaw in force.
Therefore, it is the decision of the Commission to declare that the building permit issued October 25, 1994, is invalid and require that before a new permit is issued, the Applicant submit to Council an application and site plan containing proposals that will more adequately deal with potential adverse effects from noise arising from pool activities and its mechanical operation.
The Appellant argued that due to the contour and slope of the land that disposal of pool water during the backwashing process and emptying the pool may cause environmental damage, specifically ground water contamination. According to the evidence, the Council only assumed that because it was a standard pool facility there was little need to investigate the matter further or obtain expert advice.
Although this is only adding one more pool to this tourist accommodation area, the Commission finds Council's position somewhat disconcerting. The Commission recognizes that the site is contained within an RD2 Resort Residential (Accommodation) Zone where the proliferation of swimming pools to accommodate clientele is expected. The Commission also notes, upon review of the Official Plan that the site appears to fall within an Environmentally Sensitive Area as designated on Map No. 4. and one of the major concerns is protection of aquifers as an important public resource. This is the very concern the Appellants identified during the hearing, although related specifically to the site.
According to the evidence the Council gave very little consideration to the environmental implications. The Commission finds this somewhat surprising, especially when the site is located within an Environmentally Sensitive Area. The Commission understands that these designations can be general and the condition that makes the general area sensitive may not be a characteristic of the specific site, however, there is no evidence that the Council even checked.
The Commission is certainly impressed with the degree to which the Community Council and the Community, in general, has developed an Official Plan that sets out in detail policy that requires a high environmental standard be reached before any new development is permitted. However, the Commission is concerned that the same standards are not set out in the Bylaw. For example, the Plan clearly sets out a policy for an Environmental Impact Assessment (EIA) for major developments. The Commission can find no bylaw provision for requiring such an impact statement and therefore leaves the determination as to whether or not an EIA is required in the hands of the Minister of Environmental Resources pursuant to provisions of the Environmental Protection Act. In fact, a specific bylaw provision that gives Council the authority to deny a building permit on environmental grounds appears to be absent.
Despite the technical arguments of the Appellants regarding possible pollution from the pool water, the Commission believes the bylaw does not give it sufficient authority to allow the appeal on environmental grounds. Even if the Commission did have the authority it does not have enough expert evidence specific to the site to allow the appeal on such grounds.
Within the spirit of the official plan, its goals and objectives the Commission finds the actions of the Applicant to build without a permit— irresponsible. The ability for any council to ensure the official plan objectives of the community, its residents and business owners are achieved depends on the cooperation of those involved in the development of the community. Residents and those who invest in the community's future should be in a position to feel some comfort that their interests are protected or change can be anticipated when a community adopts an official plan policy and zoning and subdivision control bylaw provisions. But little comfort can be felt if developers are able to build without a permit and without knowing if the development they propose meets the requirements of the bylaw or any special conditions that council feels necessary to impose.
When a community adopts an official plan the Planning Act grants authority to the municipal council to authorize issuance of a building permit before any development can occur. It is no different in the case of the Resort Municipality. Under Section 8. - Building Permits states:
No person shall:
b) construct or replace any structure without first applying for, and receiving a permit from council.
According to the evidence it is clear to the Commission that the Applicant did not obtain a building permit prior to construction of the pool. The bylaw does not exempt anyone from obtaining a permit and therefore does not exempt the Applicant in this particular case. It is the Commission's opinion that the Applicant violated Section 8 of the Bylaw by not obtaining a permit—having the contractors ready to start construction is little reason for such a violation. The Applicant placed herself at great risk by commencing and nearly completing construction without a building permit.
Section 56 of the Bylaw sets out enforcement provisions in cases where there are clear violations of the Bylaw. It is the Commission's view that these provisions can only be enforced by the Council and not the Commission. To the knowledge of the Commission it appears that the Council has not taken action against the violations? This inaction prompts the Commission to wonder—under what circumstances would the Council take action against such violations? Implementation of the bylaws must be in a fair and consistent manner. The decision-making process involving the implementation of the plan and bylaws and the ability of the developer to build without a building permit—without fear of reprisals—causes the Commission to wonder if the present plan administration process in the Resort Municipality meets the test of fairness and consistency. However, the Commission finds that the appeal cannot be allowed on the basis of the violation of Section 8 of the Bylaw.
In the result, the Commission believes that it must allow the appeal on the basis that Council failed to properly provide for adequate means to control noise. Therefore, it is the decision of the Commission to quash Council's decision to issue the building permit for the pool. The Commission requires that before a new permit is issued the Applicant submit to Council an application and site plan. The site plan is to contain such proposals that will more adequately deal with potential adverse effects from noise arising from pool activities and its mechanical operation. Furthermore, the Commission will order that Council require the Applicant to provide adequate buffering to control the noise in addition to the 15' side yard requirement and all other conditions contained in the permit issued by Council.
Finally, the Commission notes that the present bylaw provisions appear to be inadequate to properly implement the environmental policies contained in the Official Plan and should be reviewed by the Council.
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 Cavendish Gulf View Cottages of Cavendish (the Appellants) against a decision whereby the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Resort Municipality) issued a building permit to Clark and Louise Johnston for a rental cottage and swimming pool on parcel (Provincial Property Number 706762) located in the Resort Municipality.
Order
WHEREAS Cavendish Gulf View Cottages of Cavendish (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated November 3, 1993, against a decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Resort Municipality);
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on March 1, 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 that the decision of the Council of the Resort Municipality to issue a building permit for the swimming pool be quashed and that before a new permit is issued that the Applicant submit to Council a revised application and site plan containing proposals that will adequately deal with potential adverse effects from the noise resulting from pool activities and mechanical operation. Furthermore, the Commission orders that the Council require the Applicant to provide adequate buffering to muffle the noise in addition to the 15' side yard requirement and all other conditions contained in the building permit issued by the Council.
DATED at Charlottetown, Prince Edward Island, this 25th day of May, 1994.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Mike Ryan, Commissioner
Myrtle Jenkins-Smith, Commissioner