Docket LA95-027
IN THE MATTER of an Appeal by Harold J. McRae and Carmella McRae against a decision of the Department of Provincial Affairs and Attorney General dated September 5, 1995.
Order LA95-17BEFORE THE COMMISSION
on Friday, the 1st day of December, 1995.
John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
Emmett Kelly, Commissioner
Reasons for Order
Contents
Appearances & WitnessesReasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses 1. For the AppellantWitnesses:
Carmella McRae
Harold J. McRae
Paul J. McRae2. For the Department of Provincial Affairs and Attorney General
Witnesses:
Gerald McMillan, Property Development Officer
Dawn Moase, Traffic Section, Department of Transportation and Public Works3. For the Developer:
Counsel:
Andrew WalkerWitnesses:
JoAnne Coleman
Russell Haywood
Reasons for Order
1. Introduction
This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-9, by Harold J. McRae and Carmella McRae (hereinafter referred to as the "Appellants"). The Appellants are appealing a decision whereby the Department of Provincial Affairs and Attorney General (the "Department") issued to Karen Traverse, a building permit for construction of a summer cottage on Parcel #755082 at Mill River East.
On July 18, 1979, the Land Use Service Center approved the subdivision of land (Case #6746C) that created nine lots to be used for summer cottage use only. The subdivision established Lot #1, a parcel 0.69 acres in size and triangular in shape on the condition that the existing driveway located on the lot be used.
On August 17, 1995, Karen Traverse acquired Lot #1 (Provincial Property Number 755082) from James Trainor, Cathy Trainor and Reta Rooney.
Subsequent to the purchase of the lot Karen Traverse made an inquiry on June 26, 1995, to the Department. The inquiry was a request for the Department to determine if a single family dwelling could be constructed.
A predevelopment inspection of the site was completed on June 26, 1995 and was conducted by Gerald MacMillan. The results of the inspection were:
The existing driveway serving lot #1 of the subdivision (Case #6746C) has only 126 meters of sight distance for traffic approaching from Bloomfield. The driveway has to be relocated 64 meters from the south lot line to meet the minimum sight distance requirement.
In order to maintain a 75 foot setback from the high water mark, the cottage will be only 15 feet from the adjacent lot and 75 feet from the center of the road. Also, due to the restricted area and shape of the lot a contour type of septic system would have to be installed.
On July 14, 1995, Karen Traverse submitted to the Department an application for a building permit to construct a two story summer cottage on Lot #1. The proposed structure would be 24' in length and 28' wide. On the same day, the Applicant applied for a variance pursuant to Section 9 of the Planning Act Regulations to:
place a winterized cottage 75' from the centerline of the Highway. The reason for this is to maintain the 75' from the cottage to the High Water Mark. Permission is also requested to build 15' from the adjacent property boundary in order to fit the cottage.
On September 5, 1995, the Department issued a building permit to construct a summer cottage to Karen Traverse subject to:
The highway access driveway being located at least 64 meters from the south lot line.
A contour sewage disposal system being installed on site.
On September 18, 1995, Harold J. McRae and Carmella McRae appealed the decision of the Department to issue the building permit to the Island Regulatory and Appeals Commission.
The Commission heard the appeal on October 19, 1995, at the Summerside Fire Hall, City of Summerside, Prince Edward Island.
On October 23, 1995, after giving full and careful consideration to the evidence heard during the appeal hearing the Commission dismissed the appeal and issued Order LA9517 without giving reasons. The following contains the reasons for the Order.
2. Discussion & Findings
In general, the Appellants submitted that the basis for their appeal was the manner in which the Department applied the Planning Act. In their opinion the Minister should not have granted the variances which allowed the permit to be issued.
Lot Suitability
The Appellants argued that the triangular shaped lot of land comprising the 0.69 acre site was unstable for development and historically Mr. McRae has observed problems when heavy trucks access the area especially in the spring. Increased use will contribute to the deterioration of the land. This was evident when the cement trucks were accessing the site when the cement was poured for the foundation to the structure. Also, the shoreline of Lot #1 is vulnerable to erosion which contributes to the deterioration of the lot.
The Department indicated to the Commission that it gave consideration to the issue of soil suitability and the erosion factor. The Department considered the lot suitable for development provided a contour sewage disposal system is installed. In regard to the soil erosion factor, a 75' building set back from the beach is, in the Department's view, an adequate building setback. As for the configuration of the lot, there was no reason to deny the issuance of a building permit on the basis of its shape.
Although, the Commission might agree with Mr. McRae's observation on the condition the lot is left in when heavy trucks access the site it is not enough reason to deny the building permit. There is nothing in the regulations that requires one to deny a permit because increased truck traffic might disturb the surface of the lot. If the characteristics of the lot accommodate on-site services and the lot is large enough to meet the regulations, then normally a building permit is issued. It is clear from the approved plan of the subdivision (Exhibit D10) that the lot was approved for summer cottage use and the permit was issued for that purpose. With the exception of the configuration of the lot, which the Commission will deal with later, there is not enough evidence for the Commission to find that the Minister was wrong to determine that the lot is suitable for the building of a summer cottage.
Access
The Appellants argued that the building permit should not have been issued because the road is heavily travelled. It is narrow and hilly with poor visibility and sometimes the traffic is congested because of the number of accesses that already exist in close proximity to the bridge. The Appellants submitted that no access existed to Lot #1 prior to this event so how could one be moved, as the building permit requires? In addition, the use of the present access by fishermen and increased traffic brought on by additional cottages will cause even a greater problem in the future. The access to Lot #1 is extremely dangerous and in the past the Appellants were refused an access on the opposite side of the road. The Appellants argue that there is no suitable access to Lot #1.
The Commission finds that Lot #1 is deemed to have an access by the fact that the subdivision approval granted by the Land Use Service Center on July 18, 1978 was based on the very existence of an access. The Commission understands from Mr. MacMillan's evidence that the new site distance standards adopted since the date of the subdivision approval may affect the eventual location of the designated existing access. Further, he submitted that the regulations do not affect the existence of an access to serve the lot or the fact that one is deemed to exist.
During its initial inspection of the site by the Department it was determined by the Property Development Officer that the access could be located no less than 64 meters from the south lot line.
Highway #145 is a collector road and in accordance with the Highway Access Regulations, this section of highway requires a safe stopping distance of 140 meters. Based on the evidence submitted by the Department of Transportation and Public Works, specifically the survey profile of the road, a safe access can be located a minimum of 50 meters from the south boundary. Therefore, the Commission finds that the proposal meets the access requirements and cannot allow the appeal on the basis that the access to Lot #1 is unsafe.
Building Setback from Road
The Appellants submitted that the building did not meet the setback requirements of 83 feet from the centerline of the road as required by Section 43 of the Planning Act Regulations. The Minister of Provincial Affairs was wrong to grant a variance to allow a setback of 75 feet which would allow the structure to be constructed too close to the road contributing to an unsafe condition. Upon actual measurement Mr. McRae determined that the actual setback after the foundation was constructed was 72' and not in accordance with the allowed variance. Therefore, the builders did not meet the requirements of the building permit.
According to the Department, in order to ensure the building would be set back the required 75' from the beach a variance of 10 percent would have to be granted because the lot was triangular in shape and to accommodate a building of the size proposed. A variance of 10% is normally considered acceptable. According to Mr. MacMillan the measurement of the actual setback distance after construction was within an acceptable distance.
Based on the evidence the Commission finds that there is not enough reason to find that the Minister erred in his decision to allow the variance. In regard to the distance from the foundation to the centerline of the road, the Commission finds, based on the evidence, the actual measurements appear to depend on who and what method was used to measure distance. The evidence of Russel Haywood indicated that the setback from the building ranged between 74 and 75 feet from the corner of the foundation nearest the road to the centerline of the road. This supports Mr. MacMillan's results from his measurements.
In the view of the Commission the setback is within an acceptable distance allowed by the variance.
Side yard
The Commission agrees with the Appellants that if one applies a 10 percent variance standard, then the Minister's decision to allow a variance in the side yard requirement of 5 feet, that is, to reduce the 20' requirement for summer cottages to 15' is excessive. However, there is nothing in the regulations that establishes 10 percent as the only standard that can be applied. Also, the regulations do not prevent the Minister from using other reasons to grant a variance provided the intent and purpose of the regulations are maintained.
The reason the Department gave for granting the variance was because the Regulations establishing side yard standards will be reduced from 20' to 15" when the amendments are approved. The Commission does agree that contemplation of a change in the law—sometime in the future is not enough reason to grant a variance. In the Commission's view the exercise of such a discretion must be based on the intent and purpose of the existing regulations and not laws to be adopted sometime in the future.
At the hearing no one was able to give evidence on the intent of Section 71 that establishes the 20' side yard requirement for summer cottages. The Appellants submitted that the greater side yard standard for summer cottages as compared to the 15' side yard standard for all other buildings [Section 44(a)] contributed to openness and the maintenance of a view in coastal areas. The Commission, however, cannot find where the Regulations indicate that preserving a view is an objective except in areas where specific regulations have been adopted such as Section 2.8 of the Regulations that apply to the Princetown Point - Stanley Bridge Area. To the Commission's knowledge no part of the Mill River East Area, or more specifically the site location of Lot #1 has been established as a scenic view zone under the regulations.
To the Commission's knowledge, side yard standards establish a minimum distance between main buildings and that minimum distance is to ensure the free flow of essential public service equipment, especially in emergency situations such as fire fighting equipment. Therefore, in this case the Commission must decide whether or not the variance to the side yard standard allowed by the Minister is reasonable. The Commission finds that the 15' requirement and the minimum separation distance of 30' between the main building now located on Lot #1 and a future main building on the adjacent lot, if a similar variance is granted for that lot, complies with the basic intent of side yard regulations. If the 15‘ standard for a permanent dwelling is sufficient then it is sufficient for a summer cottage. In the absence of any other evidence that would demonstrate the Minister was wrong for granting the variance or that he improperly exercised his discretion the Commission can reach no other conclusion on this point.
Building Not Consistent With Subdivision Approval
The Appellants argued that the permit was not issued in accordance with the subdivision approval granted by the Land Use Service Center on July 18, 1978 because the structure is not a summer cottage but a permanent dwelling.
It is true that the approval of the Lots 1 though 9 by the Land Use Service Center designates those lots for summer cottage use only. However, the Planning Act Regulations do not prevent a summer cottage from being winterized. Also, even though by definition summer cottages are intended to be used "seasonally", logically referring to the summer season, there is no regulation limiting occupancy or the length of occupancy to the summer season.
In the result, the Commission finds that the issuance of the building permit complies with the subdivision approval granted by the Land Use Service Center. The building permit was issued for a summer cottage to be constructed on a summer cottage lot or Lot #1.
Commencement of Construction Without A Permit
In support of their appeal, the Appellants submitted that construction of the building was started prior to the issuance of the permit. This was corroborated in the testimony of Mr. Russell Haywood, the contractor. The Commission understands that according to Mr. MacMillan, at the time the only outstanding matter holding up issuing the building permit was the relocation of the access. Such action clearly violates Section 12 of the Planning Act Regulations. Where a person contravenes the Planning Act there are certain penalties that can be assessed pursuant to Part IV of the Planning Act. The Commission does not have enforcement powers under this Part. The Minister of the Department of Provincial Affairs and Attorney General is the appropriate authority. The Commission believes that it is the Minister who must determine the appropriate action to take if there is a violation. It is for the Minister to determine whether or not the circumstances of this case warrant action against any officer that may have occurred.
Based on the findings of the Commission, the Commission believes that the actual construction did not contravene the permit and therefore there is no substantive reason to allow the appeal because construction commenced before it was issued. Evidence submitted by the Department of Transportation and Public Works on the location of the access will ensure proper location of the access within the requirements of Schedule C of the Regulations (Exhibit D 11).
3. Disposition
Order LA95-17—which was issued on October 23, 1995—is appended to these Reasons.
DATED
at Charlottetown, Prince Edward Island, this 1st day of December, 1995.BY THE COMMISSION:
John L. Blakney, Vice-Chair
Debbie MacLellan, Commissioner
Emmett Kelly, 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.