Order LA94-09 - LA93022 - Planning Appeal - Kay Jorgenson v. Dept. of Provincial Affairs (Jul 8, 1994)

DOCKET LA93022
ORDER LA94-09

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 Kay Jorgenson (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied approval to subdivide parcel (Provincial Property Number 501270) located at Sturgeon, P.E.I.

DATED the 8th day of July, 1994.

John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner
Debbie MacLellan, Commissioner

Order

Appearances & Witnesses

1. For the Appellant

Kay Jorgenson the Appellant

Malcolm Patterson in support of the Appellant

2. For the Department

David Hume Property Development Officer

Reasons for Order

I. BACKGROUND

In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs has the authority to approve proposals for the subdivision of land. Pursuant to Section 24(1) of the regulations:

Section 24(1)

No person shall subdivide one or more lots in any area until he has submitted a certified plan of survey thereof to the Minister and received a certificate of approval therefor from the Minister.

On June 10, 1993, Kay Jorgenson applied for approval to subdivide (Provincial Property Number 501270) into two lots. The proposed use of the severed lot is for a single family dwelling. The property is located in the Community of Sturgeon. (Exhibit 14)

On this same date, Mr. Jorgenson also applied for a building permit. The application was to construct a single family dwelling on a two (2) acre parcel with 100 feet of road frontage. The site plan submitted by the Appellant indicates that the proposed dwelling will have a 75 foot set back from the shoreline of the Sturgeon River. (Exhibit 15)

On June 10, 1993, Niall MacKay, Property Development Officer, advised Mr. Jorgenson in writing that his preliminary application has been granted approval in principle subject to certain conditions. One condition was that the lot was required to have a minimum frontage of 100 feet and a minimum area of 2 acres. (Exhibit 13)

In a letter to the Honorable Walter McEwen, Minister of Provincial Affairs, dated June 23, 1993, Mr. Jorgenson requested a variance from the 75 foot set back as required pursuant to the Coastal Area Regulations. Mr. Jorgenson requested a variance to allow a fifty (50') foot set back. (Exhibit 10)

On July 22, 1993, Walter McEwen notified Mr. Jorgenson that his request for a variance was denied. (Exhibit 9)

On October 28, 1993, Walter McEwen advised Mr. Jorgenson, by letter that his request for a revision to condition number 1 of the Department's approval in principle was denied because a lot being created along the shoreline must have a minimum area of two acres. The Minister also stated that in the alternative: "your request for reduction in lot size to one-half acre could be accommodated if the lot was to be set back to provide a sixty (60') foot buffer zone between it and the shoreline. However, the buffer zone plus the Regulations' building setback requirement of twenty (20') feet from your rear lot boundary would then require you to place your dwelling eighty (80') feet from the shoreline." (Exhibit 3)

On November 14, 1993, Kay Jorgenson appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit 2)

The Commission heard the appeal on March 15, 1994, in Charlottetown.

II. DECISION

In deciding this appeal the Commission is bound by the same regulations as the Department. Both must have regard to the provisions of the Planning Act and the Planning Act Regulations. In this case, the important sections are those that restrict development in the coastal areas.

Pursuant to Section 20 of the Planning Act Regulations

No building shall be erected within seventy-five feet of the mean high water mark of any river, stream or other body of water.

In addition, pursuant to Planning Act Coastal Area Regulations the following sections apply:

Section 10.1

Subdivisions shall provide a buffer with a minimum width of 60 feet between the beach and the adjacent lots, except for subdivisions of less than five lots, each having an area of more than two acres.

Section 11.(1)

All subdivisions served with on-site water and sewer systems and which incorporate or are adjacent to wetlands or water courses shall provide a 60 foot wide buffer measured from the inland boundary of a wetland or the high water mark of the watercourse to the nearest lot boundary.

Section 30.(1)

No buildings or structures shall be constructed on a lot or existing parcel of land closer to the beach than

(a) the distance determined by multiplying the annual erosion rate for the shoreline by 60, or

(b) 75 feet

whichever is greater, measured from the top of the bank to the nearest exterior part of the proposed building or structure.

The evidence presented indicates that the subject property is located along the Sturgeon River and bound to the north by Highway #17.

Mr. Jorgenson finds himself in a situation where he wants to subdivide his property and build a new dwelling but is restricted to the above noted regulations.

Mr. Jorgenson stated in his letter of appeal that he and his wife have spent considerable time and effort on enhancing their property, including building a dam and pond and planting over 3,000 soft wood trees. In the 19 years in which he has lived there, he believes no erosion along the river has occurred and if anything the siltation caused by the river has led to a build-up. In his arguments to the Commission and in his letter of appeal, Mr. Jorgenson has made it abundantly clear that he would not have made the request for a smaller lot if he thought it would endanger the shoreline or the surrounding land.

The Commission must comply with the Planning Act Regulations subject to questions concerning the validity of the regulation or the possible application of the minor variance rule. In this case, the only attempt to argue the invalidity was on the basis of "unfairness" as it did not suit Mr. Jorgenson's personal requirements. Although sympathetic to the Appellant's objective, it is not enough to argue that the proposal should be permitted in violation of the Regulations because of the personal preference of the Appellant.

Although the Commission understands that Mr. Jorgenson would like to have a smaller lot and be able to build close to the shore line to capitalize on the scenic view of the Sturgeon River, the Commission must agree with the decision of the Department that this argument is not enough to allow special cause or a minor variance.

In the result the Commission must deny the appeal and uphold the Minister's decision to approve the original application to subdivide, provided certain conditions are met.

In the course of making its decision, the Commission requested the Department to prepare a site plan which would clearly set out an area which could be built upon, while meeting the requirements as set out by the Regulations.

To assist the Appellant in his endeavour to subdivide the property and build a single family dwelling, the Commission provides the attached site plan as an addendum to this Order (Appendix A).

Appendix A illustrates a building area which the Department is prepared to accept, with the following conditions:

A building set back of fifty (50') feet from the boundary of the Sturgeon River (this is a standard requirement).

A setback of fifty (50') feet from the Sturgeon River (this is a variance from the normal requirement which the Department has agreed to because of the stability of the shoreline.

A lot area that approaches as close as possible to the two (2) acre requirement for a shore front lot without a buffer in the Coastal Area. This means establishing a new lot boundary as close as possible to the Appellant's existing home.

The Commission also accepts the building area as illustrated in Appendix A and the listed conditions as enough to satisfy the Planning Act Regulations.

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 Kay Jorgenson (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied approval to subdivide parcel (Provincial Property Number 501270) located at Sturgeon, P.E.I.

Order

WHEREAS Kay Jorgenson (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated November 14, 1993, against a decision of the Department of Provincial Affairs;

AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on March 15, 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:

John Blakney, Vice-Chairman

Myrtle Jenkins-Smith, Commissioner

Debbie MacLellan, Commissioner

Appendix A