Order LA95-15 - LA95018 - Planning Appeal - Joan and Gerald Blacquiere on Behalf of Certain Residents of Cymbria v. Dept. of Provincial Affairs & Attorney General (Sep 28, 1995)

Docket LA95018
Order LA95-15

IN THE MATTER of an appeal by Joan and Gerard Blacquiere on behalf of certain residents of Cymbria against a decision of the Department of Provincial Affairs and Attorney General, dated June 16, 1995.

BEFORE THE COMMISSION

on Thursday, the 28th day of September, 1995.

John L. Blakney, Vice-Chair
James Nicholson, Commissioner
Debbie MacLellan, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion & Findings

3. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Gerard Blacquiere, Appellant
Judy Murnaghan, in support of the Appellants

2. For the Department

Don Walters, Chief Development Officer

3. For the Developers

John Ramsay, Legal Counsel
Merrill Montgomery, Developer
Karl Jollimore, Developer

4. Concerned Citizens

Jacques Gaudreau
Ron McBride
Gelas Gallant

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by Joan and Gerard Blacquiere, on behalf of certain residents of Cymbria (the Appellants). The Appellants are appealing a decision whereby the Department of Provincial Affairs and Attorney General (the Department) issued a building permit on June 16, 1995 to Karl Jollimore and Merrill Montgomery to erect a commercial storage building, including a lunchroom and washrooms.

The developers propose to construct a building in conjunction with a mussel operation. The parcel is located on the east side of Route #242 in the community of Cymbria.

On July 7, 1995 Joan and Gerard Blacquiere notified the Commission by letter, that they were appealing the Department's decision (Exhibit A1).

The Commission heard the appeal on August 9 and August 29, 1995 in South Rustico.

2. Discussion & Findings

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

The Appellant's position is that they are opposed to further construction of buildings related to the aquaculture industry in this area. In their letter of appeal the Appellants present a number of concerns:

· ... the construction of more buildings would be detrimental to the natural beauty and environmental well being of this area and reduce the value of our properties.

· ... if additional permits are granted there may be an assembly of unsightly buildings which would spoil the present scenic view.

· ... future excess truck traffic in our neighborhood.

During the Appeal, Judy Murnaghan presented a brief which focused on five main arguments:

The Appellants have received an opinion from the Architects Association of P.E.I. who state that the building permit is not valid without professionally sealed drawings.

The Appellants argue that the construction of this commercial building in this location will have a severe negative impact on the surrounding properties. The loss of a major portion of their view caused by the location of the building on the proposed site, increased odor from stored buoys and increased traffic will have the affect of decreasing property values and making homes difficult to sell.

Although the issue of water is dealt with by the Sewage Disposal System Application there is no mention of the septic tank, tile field and settling pond or treatment facility to support staff washrooms. Given the close proximity of the proposed development to the environmentally sensitive estuary the septic tank and tile field design should be certified by an environmental engineer.

In argument, the Appellants raise the following questions related to the application:

· Is the lot large enough to accommodate the development and meet the required standards?

· Is it not impossible to determine whether the building complies with the Provincial Building Code, fire code, barrier free design regulations, etc., without a full set of plans?

· Who will be responsible to inspect the development to ensure compliance with the Regulations?

· Will there be sanctions for noncompliance?

· If the determination of the lot size was not made recently and based on the potential erosion of the shoreline should the lot be surveyed to determine whether or not the dimensions of the lot have changed?

· The Regulations regarding "aquaculture" are in conflict with the Planning Act Regulations - "the Planning Act Regulations specify that a 75 foot frontage is required and the aquaculture regulations specify a 50 foot frontage". Since there is no "notwithstanding" clause should not the more stringent requirement be enforced?

The letters from Barry Hicken, Minister of Environmental Resources establish conditions pertaining to view obstruction. The Appellants argue the wording which sets out this condition is ambiguous and provides no comfort to the residents of the area. The Appellants raise the point that no height restrictions exist in the Planning Act Regulations and question the authority the Minister has to enforce this condition. In the Appellant's view the Minister should define "minimal obstruction" in terms of a permissible building height (in feet) above the road level.

In summary, the Appellants argue that the provincial officials erred in granting approval under the Planning Act Regulations and believe the permit is in contravention of the Architects Act and the Engineering Profession Act .

For the reasons stated the Appellants contend that the Commission must overturn the decision of the Minister and deny the building permit.

On behalf of the Department, Don Walters argued that the application for a building permit to locate a building associated with an aquaculture operation on the subject property complied with all the requirements pursuant to the provisions of the Planning Act, and its Regulations including the Coastal Area Regulations.

The Department argues that the application for a building permit met the necessary statutory requirements and as a result they had no reason to deny the application.

John Ramsay argued on behalf of the Developers that they have complied with all statutory requirements and that the building permit was properly granted. The Developers indicated that they are prepared to construct the building and comply with all conditions as set out in the building permit and the letter from Barry Hicken, Minister of Environmental Resources. The Developers believe the appeal should be denied.

The Commission also heard presentations by a number of concerned residents who oppose the construction of the building and believe that the development will have a detrimental impact on neighboring properties.

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:

The land which is the subject of this appeal is located in an area which may be characterized as an area of mixed land uses. Forming part of the farming and fishing landscape are residential and commercial developments which include a restaurant and woodworking facility, several single family homes and a commercial building associated with the aquaculture industry. The Commission understands that for some time this mix of development has co-existed with little incident. It appears, from the Appellant's submission that the introduction of another building related to the aquaculture industry will upset the balance and are opposed to further development of aquaculture related buildings in the immediate area.

In deciding appeals pursuant to Section 28 of the Planning Act, the Commission is not a law maker and must make its decision within existing laws. In this case the decision of the Commission is subject to the Planning Act Regulations.

In order to allow this appeal the Commission must satisfy itself that the Planning Act Regulations were not met and the Minister did not properly exercise his authority pursuant to the Regulations.

After considering the arguments raised by the Appellants, the Commission finds the following:

In regards to the argument that the permit is in contravention of the Architects Act and the Engineering Profession Act, the Commission finds that Section 15.(1)(a)(ii) of the Planning Act Regulations sets out conformity requirements with other laws including the Provincial Building Code or respecting fire prevention. There is no requirement under the Planning Act Regulations for part of the application or its drawings to meet the requirements of the Architects Act and the Engineering Profession Act. Accordingly, the Commission cannot deny the permit on the basis that the drawings contained in the application do not comply with these Acts. Consequently the Commission cannot allow the appeal on this point. If there is a problem with compliance with the provisions of these Acts then the matter should be addressed with the appropriate authorities responsible for enforcement of those Acts.

On the issue that the proposed building does not meet the Provincial Building Code, it is the understanding of the Commission that the province has not adopted a Provincial Building Code and therefore the building is not required to meet such a code. As a result the appeal cannot be allowed on this ground.

Based on the evidence submitted by the Department on the matter of water and waste water management, the Commission believes the Minister acted reasonably when he accepted the conditions set by the Minister of Environmental Resources under the provisions of the Environmental Protection Act for the disposal of water and waste water. Therefore, the appeal cannot be allowed on this point

The Appellants argue the Planning Act Regulations specify that a 75 foot set back is required and the location of the building on the site does not meet that requirement.

Section 20 of the Planning Act Regulations establishes a building set back requirement from watercourses:

No building shall be erected within 75 feet of the mean high water mark of any river, stream or other body of water.

Also, Section 30 of the Coastal Area Regulations establishes a set back requirement:

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 that 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.

Section 30.(4) further states that the above set back requirements do not apply to buildings or structures used for among other things aquaculture operations.

The Commission finds that because Section 30 of the Coastal Area Regulations was enacted subsequent to Section 20 of the Planning Act Regulations and since it specifically applies to this development proposal, Section 30 prevails over the more general rule contained in Section 20.

That is, the Commission finds that the requirements of Section 30 apply to this application and not Section 20. In effect, pursuant to the provisions of Section 30.(4) of the Coastal Area Regulations, there is no setback requirement from the high water mark or the top of the bank for a building of the type proposed in the application. Therefore the Commission cannot allow the appeal on the basis of enforcement of inadequate set back from the high water mark.

The Appellants argue that the proposed development will have a severe negative impact on the surrounding properties and claim their property values will decrease, their view will be destroyed and there will be increased truck traffic, noise and obnoxious odors. These concerns were also supported by those residents who provided statements during the hearing. Although the Appellants did not refer to a specific section of the Regulations, the Commission believes that the Appellants have to relie, in part, on Section 15.(1) of the Regulations as the basis for these arguments.

Section 15(1)

No building permit shall be issued where, in the opinion of the Minister, the proposed building or structure, or its alteration, repair, location or use or change of use

(a) does not conform to

...

(ii) any other regulations made under the Act, the Provincial Building Code or respecting fire prevention, or

(b) would be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public;

...

(d) would result in undue damage to the natural environment;

(e) would have a detrimental impact on surrounding land uses; or

(f) would result in a fire hazard to the occupants or to neighboring buildings or structures.

Generally, Section 15 calls upon the discretion of the Minister and to allow the appeal based on these arguments would require the Commission to substitute the Minister's opinion with its own. For the Commission to do so it must find that the Minister's opinion is unreasonable, erroneous, or based on the wrong factor.

In the Commission's view the evidence heard regarding impact on property values, truck traffic, odor and noise is not substantive enough to find that the Minister's decision was unreasonable or wrong.

As to the Appellant's argument that their viewscape will be negatively impacted upon, the Commission finds that the Planning Act Regulations do not protect a viewscape. However, the Developers have agreed to construct the building in such a way as to minimize that impact.

In the result, the Commission denies the appeal and affirms the decision of the Minister to issue a building permit. The decision of the Commission is with the understanding that the construction of the building will be in accordance with the following conditions that were put forward by the developers during the course of the hearing:

· The building is to be used for "socking" mussels.

· During the winter the building will only be used for storing winter harvesting equipment.

· The building consist of one storey only and the total height of the building from the excavated ground to the highest peak to be no more than 15 feet, and the floor level at grade to be at least 2 feet lower than the original plan for construction as proposed by the Developer;

· The roof pitch will be 3/12;

· The siding will at least be vinyl with asphalt shingles on the roof;

· The building will have the dimensions of 28 feet by 40 feet with a room for washrooms and lunchroom measuring 12 feet by 16 feet;

· The building will meet those set back requirements from the road as prescribed by the Planning Act Regulations.

· The developer will comply with all other conditions imposed by the Minister of Provincial Affairs when he issued the permit.

The situation in which the residents now find themselves and their concerns that the proposed development may be incompatible with their residential use of the land is not unique. The circumstance stems from the fact that the Planning Act Regulations do not guarantee that new developments will be similar to that which currently exists. Unlike a planned community with an Official Plan and Zoning and Subdivision Control Bylaws which set the land uses in advance and assure owners of property that new development within their zone will be like or similar to their development, the residents of Cymbria do not have this level of protection. Residents outside areas of municipal jurisdiction like the residents of Cymbria fall under the jurisdiction of the Planning Act and Planning Act Regulations which allow a mix of land use provided that the requirements prescribed by the Regulations are satisfied.

3. Disposition

The appeal is hereby dismissed and the Minister's decision to issue a building permit is affirmed on the understanding that the Developers construct the building in accordance with the following agreed upon conditions:

· The building is to be used for "socking" mussels.

· During the winter the building will be used for storing winter harvesting equipment.

· The building consist of one storey only. The total height of the building from the excavated ground to the highest peak to be no more than 15 feet, and the floor level at grade to be at least 2 feet lower than the original plan for construction as proposed by the Developer;

· The roof pitch will be 3/12;

· The siding will be at least vinyl with asphalt shingles on the roof;

· The building will have the dimensions of 28 feet by 40 feet with a room for washrooms and lunchroom measuring 12 feet by 16 feet;

· The building will be meet those set back requirements from the road as prescribed by the Planning Act Regulations.

· The developer will comply with all other conditions imposed by the Minister of Provincial Affairs when he issued the permit.

IN THE MATTER of an appeal by Joan and Gerard Blacquiere on behalf of certain residents of Cymbria against a decision of the Department of Provincial Affairs and Attorney General, dated June 16, 1995.

Order

WHEREAS Joan and Gerard Blacquiere on behalf of certain residents of Cymbria (the Appellants) have appealed to the Island Regulatory and Appeals Commission (the Commission) in written notice dated July 7, 1995, against a decision by the Department of Provincial Affairs and Attorney General;

AND WHEREAS the Commission heard the appeal at public hearings conducted in South Rustico on August 9 and August 29, 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 denied and a permit shall be issued by the Department of Provincial Affairs and Attorney General on the understanding that the Developers construct the building in accordance with the following agreed upon conditions:

The building is to be used for "socking" mussels.
During the winter the building will be used for storing winter harvesting equipment.
The building consist of one storey only. The total height of the building from the excavated ground to the highest peak to be no more than 15 feet, and the floor level at grade to be at least 2 feet lower than the original plan for construction as proposed by the Developer;
The roof pitch will be 3/12;
The siding will be at least vinyl with asphalt shingles on the roof;
The building will have the dimensions of 28 feet by 40 feet with a room for washrooms and lunchroom measuring 12 feet by 16 feet;
The building will meet those set back requirements from the road as prescribed by the Planning Act Regulations.
The developer will comply with all other conditions imposed by the Minister of Provincial Affairs when he issued the permit.

DATED at Charlottetown, Prince Edward Island, this 28th day of September, 1995.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

James Nicholson, Commissioner

Debbie MacLellan, 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.