Docket LA95002
Order LA95-10

IN THE MATTER of an appeal by Edward MacDonald, Allan MacDonald and Wilfred MacDonald against a decision by the Cross Roads Community Council, dated January 12, 1995.

BEFORE THE COMMISSION

on Thursday, the 8th day of June, 1995.

John L. Blakney, Vice-Chair
Clayton Bulpitt, Commissioner
Emmett Kelly, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion & Findings

3. Disposition

Order

Appearances & Witnesses

1. For the Appellants

Edward MacDonald
Allan MacDonald
Wilfred MacDonald

2. For the Community

Carol Lowther, Administrator
Philip Wood, Planning Consultant

Reasons for Order

1. Introduction

This is an appeal under the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by Edward MacDonald, Allan MacDonald and Wilfred MacDonald (the Appellants). The Appellants are appealing a decision whereby the Cross Roads Community Council (the Council) denied an application to subdivide Parcel Number 299412 located at Cross Roads.

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.

By letter dated November 8, 1994, Edward MacDonald, Allan MacDonald and Wilfred MacDonald applied for approval to subdivide part of Provincial Property Number 299412, into four lots. (Exhibit CR4).

By letter dated January 12, 1995, Bev McMurray, Chairperson of the Cross Roads Planning Board, notified Wilfred MacDonald that the request to subdivide was denied. (Exhibit CR7)

On January 26, 1995, the MacDonald Brothers appealed the decision of the Community Council to The Island Regulatory and Appeals Commission (Exhibit A1).

The Commission heard the appeal on May 2, 1995, in Charlottetown.

2. Discussion & Findings

The principal arguments for the Appellants may be summarized as follows:

  • The Appellants take the position that Council did not properly calculate the frontage of the lots in question. The Appellants contend that the "arc" distance should be used to calculate frontage and if this method is used the proposed lots meet the bylaw requirements.
  • With respect to Council's provision that a 66 foot wide right-of-way allowance be provided to the adjacent lot, the Appellants argue that this property is not landlocked and a road or driveway can be taken in from either the north boundary which borders the Bellevue Road, or south boundary which borders on the old Georgetown Road. The Appellants contend that Council has no authority to impose such a provision. The Appellants add that providing a 66 foot wide right-of-way will greatly impact on their usage of the property and increase their road development costs by approximately $10,000.

The Appellants request that the appeal be allowed and that their application for subdivision be approved.

The principal arguments for the Council may be summarized as follows:

  • The Council relied on the definition of lot frontage contained in the Zoning Bylaw and applied a minimum standard of 100 feet. Since two of the proposed lots fail to meet the minimum standards as set out in the Bylaws the application was denied.
  • Council argued that the proposed road should be extended an additional 60 feet to create sufficient frontage for the lots and to avoid the creation of an inappropriate side lot line on the middle lot.
  • In addition, Council stated that the cul-de-sac should be substituted with a 66 foot right-of-way allowance to the adjacent parcel of land to the east in order to allow for future access.

Council requests that the appeal be denied.

After giving full consideration to the evidence submitted in this case it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:

A community experiencing development pressure must concern itself with the manner in which growth takes place to ensure development will occur consistent with sound planning principles. The Planning Act of Prince Edward Island provides municipalities with the statutory authority to develop and adopt official plans and implementing zoning and subdivision control bylaws which enable a community to set the direction for future development within their municipal boundaries.

For some time the Community of Cross Roads has experienced development pressures. To assist with this process the Community has adopted an Official Plan and implementing bylaws pursuant to the provision of the Planning Act.

The official plan for the Community entitled Community of Cross Roads Official Plan ‘84 sets out goals and objectives to manage growth and development within the community. The Official Plan emphasizes the need to accommodate development in an orderly and economic manner and provides specific objectives in the following sectors : social, economy, public services, recreation, open space and parks, transportation and land development.

In the area of transportation, the community through its Official Plan recognizes the need to provide and plan for efficient transportation that will facilitate the movement of people and goods within and through the Community. The land development policy seeks to provide direction and rationale for the ongoing development of the Community. The Community has adopted Bylaws to ensure their needs are satisfied through proper planning.

With respect to the current subdivision application, Council cited that one of the reasons for denying the proposed subdivision was that the developers failed to allow for a 66 foot wide right-of-way to the adjacent parcel to the east in order to provide for future access. The Commission heard evidence from Mr. Philip Wood that it was the opinion of Council that the allowance of a 66 foot wide right-of-way was a decision based on sound planning principles which would enable the community to better develop the land base and allow for a more efficient circulation of traffic.

The Appellants however, contend that the provision of a 66 foot wide right-of-way will detract from their usage of the property and that Council should not impose this requirement.

In reviewing this matter the Commission finds that the statutory authority for requiring the provision of a right-of-way may be found under the General Provisions of the Subdivision Control Bylaw, specifically Section 8.(2) where Council may require the plan of subdivision to show such information as :

(k) other matters which, in the opinion of Council, may prejudice sound development in the vicinity.

The Commission finds that this section authorizes the Community to impose such provisions as a right-of-way to ensure sound development in the vicinity.

The Commission has dealt with the issue of subdivision and the allowance for traffic circulation within the Community of Cross Roads on a number of separate appeals. In the appeal of Desmond Rice v. Cross Roads (Order LL92-7), the Commission was critical of past decisions of Council for approving subdivisions which only met the minimum requirements of the Subdivision Control Bylaw with little attention to how the remaining land would be developed. It was apparent in these decisions that little thought was given to the design of subdivisions that would ensure access to the interior properties through effective and efficient lot design and layout. Similarly in the case of Fida Enterprises v. Cross Roads (Order LA94-05), the Commission allowed the appeal with the condition that the developer reserve a public street access to adjacent lands. In both these decisions, the Commission found that Council has a responsibility to impose standards to ensure the most efficient subdivision design and layout is used in order to accommodate development in an orderly and economic manner and which will be of benefit to the developer and the Community.

In the present case before the Commission, Council denied an application to subdivide based on this very issue - the developer failed to provide for a right-of-way reserve which would allow access to an adjacent parcel of land.

Based on the evidence submitted by Philip Wood that the proposed right-of-way as designed in Exhibit A3 is acceptable to the Department of Transportation and Public Works and Section 8(2)(k) of the Subdivision Control Bylaw, the Commission finds that the Community Council acted in an appropriate manner in requiring the Appellants to provide the right-of-way. Council has a responsibility to require a right-of-way reserve which will facilitate growth and development in an orderly manner and will be in the best interest of the public.

In regard to the issue of lot frontage the Commission is of the opinion that while the Subdivision Control Bylaw does not contain a provision allowing for variances to the frontage requirements, the Zoning Bylaw authorizes Council to allow minor variances pursuant to the provisions of Section 13. Minimum frontages for lots in each zone are provided in the Zoning Bylaw and therefore the minor variance provision applies. Because the Zoning Bylaw provides for the minimum requirements in any particular zone, and these can be varied under Section 13, it is the opinion of the Commission that Council has authority to allow for a minor variance for frontage, notwithstanding that there is no similar variance provision in the Subdivision Control Bylaw. However, the Commission accepts the provision for a right-of-way as illustrated in Exhibit A3 and as required by Council. Therefore there is no need for the cul-de-sac which inturn requires the variance on lot frontage. Consequently, the Commission will not allow the appeal on this point.

3. Disposition

For the reasons stated the appeal is denied.

IN THE MATTER of an appeal by Edward MacDonald, Allan MacDonald and Wilfred MacDonald against a decision by the Cross Roads Community Council, dated January 12, 1995

Order

WHEREAS Edward MacDonald, Allan MacDonald and Wilfred MacDonald (the Appellants) appealed to the Island Regulatory and Appeals Commission (the Commission) in written notice on January 26, 1995, against a decision by the Cross Roads Community Council;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on March 2, 1995 after due public notice;

AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act

IT IS ORDERED THAT

1. The appeal is hereby denied.

DATED at Charlottetown, Prince Edward Island, this 8th day of June, 1995.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Emmett Kelly, Commissioner

Clayton Bulpitt, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:

12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.