DOCKET LA93016
ORDER LA94-05

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 Ian Smith of Fida Enterprises Ltd. (the Appellant) against a decision whereby the Community Council of Cross Roads (the Council) denied an application by Ian Smith to subdivide Provincial Property Number 299503 located in Cross Roads, Queens County.

DATED the 10th day of June, 1994.

 Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner

Order

Appearances & Witnesses

1. For the Appellant

Ian Smith President of Fida Enterprises Ltd., The Appellant

2. For the Community of Cross Roads

Beverly McMurray Councilor, Chairperson of Planning Board

Phil Wood Planning Consultant 

  Reasons for Order

I. BACKGROUND

In accordance with the Planning Act, the Official Plan of the Community of Cross Roads and the Cross Roads Zoning and Subdivision Control Bylaw, the Community Council of Cross Roads has the authority to approve the subdivision of land, pursuant to Section 5 of the Subdivision Control Bylaw:

Section 5

Any person proposing to subdivide any land within the corporate limits of the community for the purpose of lease, sale, transfer, use or development shall make application for approval of the subdivision to the Council in accordance with the provisions of this Bylaw.

On July 26, 1993, Mr. Ian Smith applied to the Community of Cross Roads to subdivide Provincial Property Number 299503 into four lots (Exhibit 8).

Provincial Property Number 299503 is zoned Agricultural Reserve (A1) and pursuant to the provisions of Section 30 of the Subdivision Control Bylaw, subdivision is limited within this zone.

Section 30

Within the Agricultural Reserve (A1) Zone, no person shall be permitted to subdivide from any existing parcel more than five lots.

On September 13, 1993, the Community Council passed a motion to deny Ian Smith's request to further subdivide Provincial Property Number 299503 (Exhibit 6).

On September 16, 1993, Bev McMurray, Chairperson of the Planning Board, notified Mr. Smith by letter that his application was denied. The reasons stated for denying the application were:

Our bylaws do not make provisions for development on private roads, and in relation to another proposal, it has recently been decided that the community retain this policy;

Part IV, section 11.1 which states "Every lot or parcel shall have at least the minimum frontage on a public street or road for the intended use of the lot or parcel as outlined in this bylaw and the Cross Roads Zoning Bylaw."

(Exhibit 4)

On September 28, 1993, Ian Smith appealed the decision of the Community Council to The Island Regulatory and Appeals Commission (Exhibit 1).

The Commission heard the appeal on February 4, 1994, in Charlottetown.

II. EVIDENCE AND ARGUMENTS

 A. Appellant

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

During the hearing the Appellant stated that he is seeking approval to subdivide the existing parcel (Property Number 299503) into four lots which will include three new lots plus the residual. He contends the three new lots will meet the requirements for frontage on a public road while the residual parcel (depicted as Lot 4 on Exhibit 5) will continue to have frontage on the Kennedy Road.

The Appellant, in presenting his arguments, stated that he relied on a previous decision of the Commission which found that he had a right to sever three additional lots from the existing parcel.1

In response to Council's arguments with respect to Lot 4, the Appellant stated that when the existing parcel was previously subdivided he believed Council gave approval to the various plans of subdivision, which allowed access from the existing parcel to Kennedy Road via a 66-foot wide private right-of-way. In the current application to subdivide, this right-of-way will continue to exist. The Appellant contends that it is unfair for the Community to now decide that Lot 4, which is the existing lot, does not have adequate frontage on a public road and, as a result, does not conform to the provisions of the bylaws.

The Appellant stated that over the years he relied on the Community for guidance in subdividing the property and believes the existing right-of-way will provide adequate frontage for Lot 4 - "if this was sufficient then it should be sufficient now".2

B. Community of Cross Roads

The Community Council argued that the proposed subdivision was in contradiction of the bylaws for the reasons as stated on page 4.

In addition, during the hearing Mr. Wood presented a number of additional reasons for denying the Appellant's application to subdivide, including:

    • The Appellant does not have a right to sever five lots. Section 30 of the Bylaw is intended to restrict development in the Agricultural Reserve Zone and should not be interpreted as an allowance or guarantee to sever five lots.

    • The intent of the Plan is to preserve agricultural land and to minimize the intrusion of residential development into the agricultural zone. By denying the Appellant's application to subdivide, the intent of the Plan will be satisfied.

    • Through the course of subdividing the existing parcel, the Appellant voluntarily created a land-locked parcel (Lot 3 in Exhibit 10). The existing parcel has a narrow access leading to Kennedy Road and essentially no road frontage off the Lantz Subdivision. The provisions of Section 29.(5) of the Bylaw do not permit any further subdivision of the existing parcel. The existing parcel has less than the required 200 feet frontage on a public road and, as a result, cannot legally be subdivided.

III. DECISION

Having considered the evidence, the Commission decided to allow the appeal. The reasons for this decision are as follows:

The current subdivision application, involving the subdivision of agricultural land into smaller units for residential purposes, exemplifies a situation occurring throughout the province and, indeed, other jurisdictions. How this conversion is controlled and planned for is of paramount importance.

In Prince Edward Island, the Planning Act provides the statutory authority for local municipalities to adopt official plans and zoning and subdivision control bylaws. Such authority allows the Community to set the direction for orderly development within the municipal boundaries.

For the last number of years, the Community of Cross Roads has been responsible for planning the orderly development of the Community's land resources. As a mechanism to guide such development, the Community has adopted an official plan and zoning and subdivision control bylaw.

The Community's Official Plan entitled Community of Cross Roads Official Plan ‘84 (the Plan) sets out a formal set of policies concerning the nature, extent and pattern of growth and change within the Municipality.3 The implementation of the Plan is carried out through the Cross Roads Zoning and Subdivision Control Bylaw.

The issue before the Commission involves determining whether or not the application to subdivide conforms to both the general intent of the Plan and the provisions pursuant to the Zoning and Subdivision Control Bylaw.

Upon reviewing the Plan, the Commission finds the general policies and objectives for guiding residential subdivision and development are contained in Section 2.1.2:

Residential Objectives and Policies

The Community of Cross Roads recognizes the necessity to accommodate in an orderly economic manner, present and anticipated future demands and preferences for residential housing in various residential environments - agricultural, residential and coastal..."4 (emphasis added)

According to the map entitled Policy for Land Development, the subject property is located within the designated Agriculture Area. Within this area, the primary objective to guide residential subdivision and development, "is to accommodate residential development while limiting residential density in order to reduce the possibility of conflict between residential and agricultural activities".5 (emphasis added)

In the designated Residential Area emphasis will be placed on the infilling of vacant lands within the developed areas. Accordingly, the expansion of the Residential Area into the Agriculture Area shall only occur when the Residential Area is developed to 75% of its capacity.

Until the 75% capacity is reached, specific policies have been developed, including limitations on the subdivision of land in the Agriculture Area.

Subdivision Limit

In an agricultural area a subdivision serviced by a public road will be limited to one to five lots and where compatibility with adjacent landowners is to be achieved, the community may require a buffer zone along the perimeter of the subdivision.6 (emphasis added)

The Commission notes the section merely sets limits on the number of lots in the Agriculture Area but does not prohibit further subdivision.

The Plan also sets out specific policies limiting residential development within the Agriculture Area:

4.1 Agriculture Area

The Community recognizes the continued need to protect the agriculture resources of Cross Roads. The purpose for designating an area agriculture is to ensure there is a specific area where agriculture activities can be carried out without fear of new non-compatible or conflicting developments over the long term. Consequently future residential developments will be limited...7 (emphasis added)

The Commission finds the phraseology embodied within the Plan to be permissive and in no way seeks to completely prohibit further subdivision or residential development in the designated Agriculture Areas. The Commission believes the intent of the Plan is to limit residential density by limiting subdivision to one to five lots. That is, provided specific provisions of the Plan are satisfied and the implementing bylaws are complied with, one is entitled to subdivide land in an agricultural zone into one to five lots, but no more.

Having determined the intent of the Plan with respect to subdividing land isolated in an Agriculture Area it is necessary to review the implementing bylaws to determine what statutory requirements must be satisfied.

According to the Zoning Map the subject property is located in the Agricultural Reserve (A1) Zone. Pursuant to the provisions of Section 30 of the Subdivision Control Bylaw, limitations are placed on the subdivision of land within this zone.

Section 30

Within the Agricultural Reserve (A1) Zone, no person shall be permitted to subdivide from any existing parcel more than five lots.

In a previous decision, the Commission defined "existing" to mean - "that which existed at the effective date of the bylaw", and, accordingly, the Appellant is entitled to 3 lots leaving a residual for a total of 4 individual parcels.8

Upon examining surveyor's drawings of previous subdivisions of the existing parcel, the Commission finds that the private right-of-way which is part of and accesses Lot 4 from the Kennedy Road was created when Ian Smith was given approval by Council on June 8, 1988 to sever a 4-acre lot. Subsequent to the severance, a 24-acre parcel was severed from the existing parcel and sold to Donald and Della Wood. It is between this 4-acre parcel and the 24-acre parcel that Ian Smith retained an area of land that would accommodate an access from the Kennedy Road to the residual of the existing lot.

Based on the evidence, the Commission finds that the residual has approximately 125 feet of frontage on the Kennedy Road. This amount of frontage would exceed the requirements for 100 feet of frontage pursuant to Section 54 of the Bylaw.

The Appellant now proposes to subdivide the residual parcel into three new lots in addition to lot 4 as designated on Exhibit 5. The Commission understands that the new lots described as Lots 1, 2 and 3 will be accessed from a public street to be developed and conveyed to the Department of Transportation and Public Works by the Developer.

In determining whether these three lots may be approved, the Commission would agree with Mr. Wood's argument that 200 feet is required on a local street before the subdivision is allowed. However, based on its previous decision, the Commission finds that the existing parcel did front on a collector road and at the time Mr. Smith was entitled to sever up to 5 lots plus the residual parcel. Mr. Smith subdivided the 24-acre lot, the 4-acre lot and now is entitled to 3 additional lots, leaving a residual on what is left of the existing lot designated on Exhibit 5 as lot number 4.

In order for Mr. Smith to subdivide up to 5 lots the provisions pursuant to Section 29.(4) b ii of the Bylaw must be adhered to.

29.(4) Notwithstanding the provisions of subsection 29(1), along a collector road:

b) no person shall sever two to five lots unless:

ii) a subdivision road is prepared to serve five or more lots.

The Commission believes that the proposed public street from the Lantz Subdivision, the Kennedy Road, and the Collector Road more than satisfies the requirements of Sections 29.(4) b ii.

IV. CONCLUSION

For the reasons cited the appeal is allowed.

The Appellant will have to create a public road and convey this to the Department of Transportation and Public Works before final approval can be given to Lots 1, 2 and 3. The Commission requires the Appellant to design the subdivision to reserve a public street access to adjacent lands, such design to be approved by the Community Council and the Department of Transportation and Public Works. This will ensure more efficient use of the land which will benefit both the developer and the Community.

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 Ian Smith of Fida Enterprises Ltd. (the Appellant) against a decision whereby the Community Council of Cross Roads (the Council) denied an application by Ian Smith to subdivide Provincial Property Number 299503 located in Cross Roads, Queens County.

Order

WHEREAS Ian Smith of Fida Enterprises Ltd. (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated September 28, 1993, against a decision of the Community Council of Cross Roads;

AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on February 4, 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 provided that the Appellant designs the subdivision to reserve a public street access to adjacent lands, such design to be approved by the Community Council and the Department of Transportation and Public Works.

DATED at Charlottetown, Prince Edward Island, this 10th day of June, 1994.

BY THE COMMISSION:

Linda Webber, Chairman

John L. Blakney, Vice-Chairman

Myrtle Jenkins-Smith, Commissioner

1 Island Regulatory and Appeals Commission, Order LA93-5, June 28, 1993.

2 Ian Smith, Statement provided during hearing.

3 Community of Cross Roads Official Plan '84, 1984 (Revised).

4 Ibid., p.6.

5 Ibid., p.6.

6 Ibid., p.6.

7 Ibid., p.31.

8 Island Regulatory and Appeals Commission, Order LA93-5, June 28, 1993.