DOCKET LA93020
ORDER LA94-08IN 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 Steve Oraniuk (the Appellant) against a decision whereby the Southport Community Council (the Community) denied the issuance of a building permit for a single family dwelling on Provincial Property Number 683128 located at Southport, P.E.I.
DATED the 8th day of July, 1994.
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Clayton Bulpitt, Commissioner
Order
Appearances & Witnesses
1. For the Appellant
Steve Oraniuk the Appellant
2. For the Community
Carol Lowther Community Administrator
Phil Wood Planning Consultant, in support of the Community
Reasons for Order
I. BACKGROUND
In accordance with the Planning Act and the Community of Southport Official Plan 1990 and the Southport Zoning and Subdivision Bylaws 1990, the Southport Community Council has the authority to approve building permits. Pursuant to Section 5.1.:
No person shall:
a) change the use of a parcel of land or a structure;
b) construct or replace any structure;
c) make structural alterations to any structure;
d) make any water or sewer connection;
e) make any underground installation such as a septic tank, a fuel tank, a foundation wall, or the like;
f) move any structure; or
g) subdivide any land
without first applying for, and receiving a permit from the Council.
On October 15, 1993, Steve Oraniuk completed an application for a building permit and submitted it to Council for approval. (Exhibit 5)
On October 25, 1993, Bill Dobin, Development Officer for the Community, notified Mr. Oraniuk by letter that his application was denied based on the provisions pursuant to Section 10 of the Zoning and Subdivision Bylaws:
(Exhibit 4)No permit shall be issued by Council in any zone except in the Residential Summer (RS1) zone unless the parcel of land in respect of which the permit is issued has frontage on a street.
Mr. Dobin also stated "it would appear from the original plan of subdivision that the 66' Right of Way adjacent to Lot #8 was intended to be deeded to the Province as a public street. Under our Bylaws, once this right-of-way is deeded to the Province (and accepted), we can then consider an application to build on this lot."
On November 3, 1993, Steve Oraniuk appealed the decision of Council to The Island Regulatory and Appeals Commission. (Exhibit 3)
The Commission heard the appeal on April 27, 1994, in Charlottetown.
II. EVIDENCE AND ARGUMENTS
A. Appellant
The principal arguments for the Appellant can be summarized as follows:
The Appellant stated that he purchased the lot in 1985. On July 2, 1985, he received a building permit (Permit Number 85-41) authorizing him to construct a single family dwelling. The Appellant estimates that in 1985 he spent approximately $1,500 to $2,000 in fill for the lot. The construction of the dwelling was not initiated.
On October 15, 1993, Mr. Oraniuk applied for another building permit to construct a single family dwelling on the same lot but was denied. Between the issuance of the first permit in 1985 and the application for the second permit, Mr. Oraniuk estimates that he spent approximately $6,000 in fill to increase the elevation of the lot.
In his letter of appeal, Mr. Oraniuk states: "the fact this is an approved subdivision, that a residence could have been on the lot since 1985, that the lot is deeded one parcel of land and our 66' right of way does provide frontage on Marion Drive East, clearly indicates that this situation calls for review."(Exhibit 3)
During the hearing Mr. Oraniuk argued that the subject parcel - Lot #8, fronts on a proposed right-of-way. This right-of-way could be combined with his lot to provide the road frontage necessary to satisfy the bylaw requirements.
B. Community Council
Arguments for the Community can be summarized as follows:
The Community Council denied the building permit pursuant to the provisions of Section 10 of the Bylaw, stating that the lot in question did not have adequate frontage on a public street.
On the matter of the building permit being issued in 1985, the Council stated that this permit was issued in error.
III. DECISION
Having considered the evidence, the Commission decided to deny the appeal. The reasons for this decision are as follows:
In making this decision the Commission is bound by the same rules and regulations that bind the Community Council. Both must have regard to the Community of Southport Official Plan 1990 and the Southport Zoning and Subdivision Bylaws 1990. In this case, foremost among these considerations are the provisions necessary to acquire a permit and specifically Section 10 which pertains to street frontage requirements.
Section 10.
No permit shall be issued by Council in any zone except in the Residential Summer (RS1) zone unless the parcel of land in respect of which the permit is issued has frontage on a street.
Upon review of the subdivision plans filed with the Commission - #2267B and #2267E, the Commission observes that the subject lot - Lot #8 is located within a subdivision approved by the Department of Community Services on June 29, 1972. Lot #8 fronts on a 66 foot wide reserved right-of-way which has not been upgraded or deeded to the province and as a result does not fall within the definition of a street pursuant to the provisions of the bylaws nor can it be considered part of the approved Lot #8.
The Commission finds that the subdivision was approved designating a reserve 66 foot right of way to serve Lot #8 and the adjacent lands. It is normal for a planning authority to ensure that such rights of way are reserved to provide street access which properly connect to new subdivisions when developed.
The Commission must agree with the Community that the subject lot does not have frontage on a public street and therefore fails to meet the provisions pursuant to Section 10 of the bylaw regarding street frontage. As a result the appeal must be denied.
In regards to the matter raised by the Appellant regarding the issuance of a building permit in 1985, and his argument that this should continue to be in effect, the Commission understands that at the time this permit was approved the bylaws in effect were the Bunbury-Southport Zoning and Subdivision Control Bylaw (Revised 1984). In accordance with Section 14:
No development permit shall be issued unless the lot or parcel of land intended to be used or upon which the building or structure is to be erected abuts and fronts on a street.
The Community responded that this permit was issued in error and that because the lot does not have frontage on a public street, a building permit should not have been issued at that time, as it cannot be issued in this instance.
Upon review of the Bunbury-Southport Zoning and Subdivision Control Bylaw (Revised 1984) the Commission is of the opinion that the original building permit had expired. Although the Appellant was previously issued a building permit, the Commission is satisfied that it was issued in error and he is not entitled a permit simply because one was previously issued.
On appeal the Commission hears substantive matters related to whether or not council made an appropriate decision and issues an order accordingly to allow or dismiss the appeal. The Commission does not have the jurisdiction to issue orders that are pecuniary or in effect award damages for costs incurred as a result of a decision of Council. On the matter of the Appellant's claim that he incurred costs as a result of the former Council's decision to issue a building permit - that claim is for the courts of appropriate jurisdiction to decide.
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 Steve Oraniuk (the Appellant) against a decision whereby the Southport Community Council (the Community) denied the issuance of a building permit for a single family dwelling on Provincial Property Number 683128 located at Southport, P.E.I.
Order
WHEREAS Steve Oraniuk (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated November 3, 1993, against a decision of the Southport Community Council;
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on April 27, 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 denied.
DATED at Charlottetown, Prince Edward Island, this 8th day of July, 1994.
BY THE COMMISSION:
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Clayton Bulpitt, Commissioner