Order LA95-18 - LA95005 - Planning Appeal - Stanley Gallant v. Dept. of Provincial Affairs & Attorney General (Nov 14, 1995)

Docket LA95005
Order LA95-18

IN THE MATTER of an appeal by Stanley Gallant against a decision of the Department of Provincial Affairs and Attorney General, dated February 13, 1995.

BEFORE THE COMMISSION

on Tuesday, the 14th day of November, 1995.

Linda Webber, Chair
Carl Riggs, 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

Counsel:
J. Allan Shaw

Appellant:
Stanley Gallant

Witness:
Ron Gallant

2. For The Department

Gerald McMillan, Property Development Officer

Witnesses:
Don Walters, Chief Development Officer
Mike Berrigan, Transportation Engineer

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 Stanley Gallant (the Appellant). The Appellant is appealing a decision whereby the Department of Provincial Affairs and Attorney General (the Department) denied issuance of a building permit for the construction of a single family dwelling on parcel number 548925 at Howlan, P.E.I.

In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs and Attorney General has the authority to approve or deny the issuance of building permits.

On November 15, 1994, the Appellant completed an application for a building permit (Exhibit D10).

On February 13, 1995, the Department notified the Appellant, by letter, that approval to construct a single family dwelling on property number 548925 could not be granted (Exhibit D13).

On February 16, 1995, the Appellant appealed the decision of the Department to The Island Regulatory and Appeals Commission (Exhibit A1).

The Commission heard the appeal on May 15, 1995, in Charlottetown.

2. Discussion & Findings

The Appellant summarized for the Commission, in chronological order, key events pertaining to the subject property:

In 1976 the Appellant acquired parcel number 548925 from the Director, The Veterans' Land Act (Exhibit A3). On or about that same year the Appellant had the lot surveyed.

Between 1973 and 1975 the Appellant placed a dwelling on the lot. The Appellant maintains he received a building permit and the dwelling was wired and inspected by an electrical inspector. A well and sewage system were also installed. In addition, he received mortgage assistance from the Canada Mortgage and Housing Corporation. The Appellant occupied the dwelling for approximately 18 years and paid property taxes to the provincial government.

Around 1980-1981 the Department of Transportation and Public Works altered the road alignment which the Appellant contends reduced the sight distance for access to his property.

On or about 1991 the Appellant removed the dwelling from the property.

In 1993 the Appellant submitted an application to the Department for subdivision approval to acquire an adjacent portion of land from the estate of his father - an angle to be used to accommodate a driveway. The Department denied this application on the basis of, among other things, inadequate sight distance.

On November 15, 1994, the Appellant completed an application for a building permit (Exhibit D10), which the Department denied and which is the subject of this appeal.

On behalf of the Appellant, Mr. Shaw argues that although the sight distance is inadequate, the Appellant, by virtue of the events that have taken place with the property and which have involved both the provincial and federal governments, has a right to acquire a building permit and maintain the lot for residential use.

Mr. Shaw argues that this was an "officially induced error" and based on the circumstances, the Commission must overturn the decision of the Minister and allow the appeal.

The case for the Department may be summarized as follows:

The Department argues that they have reviewed their files back to 1973 and have no record that the subdivision of the property, creating parcel 548925, was approved nor do they have any record of a building permit being issued for a residential dwelling on this property.

The Department denied the current application for a building permit on the grounds that the Department of Transportation and Public Works assessed the site and determined that there is no safe sight distance along the frontage of the parcel. The application was denied pursuant to the provisions of Section 15 of the Planning Act Regulations.

The Department contends that the application was appropriately considered and seeks to have the appeal denied.

After considering all the evidence presented and after reviewing the provisions of the Planning Act and the Planning Act Regulations, it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:

The Appellant claims that he has an accrued or vested right to a building permit and that the situation which exists is as a result of an "officially induced error". As well, Mr. Shaw argues that regardless of whether the property now fails to meet the sight distance requirements, a building permit should be approved for the development of a single family dwelling because this is simply a continuation of the residential use begun about 1973.

Subsection 8.(2) of the Regulations sets out provisions for protecting the continuation of non-conforming use of lawful existing uses of land or buildings:

S.8.(2)

Any existing use of a land or a building which is lawful on the day immediately preceding the date on which these regulations come into force may, notwithstanding that such use would contravene the provisions of these regulations, be continued as a non-conforming use.

The first question to be answered then, is whether or not there was an existing lawful use that would result in the application of this section.

We note that this section came into force in 1977. The evidence is that a house was moved onto the parcel in question around 1973 and stayed there until 1991. The lot itself was deeded to the Appellant in 1976. Therefore, the house existed and the parcel existed at the time Subsection 8(2) came into effect.

We also note that Subsection 50.1(b) states:

50.1 Along any local highway

. . .

(b) any parcel of land which is

. . .

(i) any existing parcel of land,

. . .

shall be deemed to have an access driveway.

"Existing parcel of land" is defined in Section 3 as "any parcel of land or lot created prior to February 3, 1979." The evidence referred to above indicates that the Appellant's lot was created prior to February 3, 1979 and therefore is an existing parcel within the meaning of the Act and therefore by virtue of Section 50.1 is deemed to have an access driveway.

The inability of the Department to find records relating to this matter does not alter our findings. On the issue of the subdivision of the lot we feel that the overriding provision is the definition of "existing parcel of land" -- an apparent legislative recognition that many lots existed without all required documentation -- and the legal significance given by the Act to that phrase.

The lack of a building permit in the Department's records we also can't find conclusive after a 20-year time lapse. Files are moved, lost and destroyed. Personnel change. To suggest that the Appellant should have saved the building permit after all these years is highly unreasonable. The Appellant recollects that he got such a permit and that since it said it had to be prominently posted he nailed it to a stake and drove the stake into the ground in front of his house. We accept this evidence.

The fact that the house existed and was occupied for approximately 18 years -- with all normal services, a CMHC grant, inspections, etc. would also lead us to conclude that in the circumstances a valid building permit must be presumed.

What this brings us to is the validity of the refusal of a building permit now because the provisions of Subsection 15(2) could not be satisfied. (We note for the record that since the filing of this appeal Section 15(2) has been repealed. Now, similar sight distance provisions are incorporated by reference to the Roads Act, R.S.P.E.I. 1988 Cap. R-15, as amended.)

There are special circumstances to be considered in this case. Those already mentioned include lack of supporting documentation for subdivision approval and previous building permit approval. A house was moved onto the lot in approximately 1973 and lived in by the Appellant until approximately 1991. At that time he moved the house off the lot, intending to build a new one on the lot.

During the 1980's the road on which the lot fronted was significantly altered by the Department of Transportation and Public Works. The evidence indicates that there was a sharp curve and steep hill. The government altered the road to straighten the curve and flatten out some of the incline. In doing so the frontage of the Appellant's lot was significantly altered. The end result was that the road was apparently improved for the general motoring public but visibility was decreased insofar as the Appellant's lot was concerned.

There is no question that the sight distance requirements of Schedule C cannot be met for the Appellant's lot as the road is presently designed. There was insufficient evidence to determine whether or not existing sight distance requirements could have been met if the road had not been altered. The evidence overall, however, indicates that the road alterations reduced the sight distance.

As the Appellant's counsel pointed out, if the house had not been moved the Appellant would be living on and using the lot as he had for the approximately 18 years prior to 1991. What he proposes is the same use, no intensification of the use and no higher use.

The Commission understands that the Regulations were amended in 1992 to prohibit the issuance of a building permit where the entranceway would have unsafe sight distance at that time:

S.15.(2)

No building permit shall be issued for any parcel of land where the entrance way would have unsafe sight distance by reference to Schedule C to Part VI of these Regulations.

Once the law had been changed everyone was subject to the new law unless there were any valid non-conforming uses or accrued vested rights.

Our review of the law suggests that there is not much real difference between valid non-conforming use and accrued vested right. At the time the law changed any landowner who exercised rights that did not comply with the change in the law would be involved with a non-conforming use. Section 8 allows such use to continue.

However, the word "continue" suggests ongoing use of the type at issue and that is the problem here. The property was not being "used" as a single family residential lot on the day before the legislation was enacted. It had not been so used for about a year and no attempts were made to re-establish such use for one to two more years.

When looking at the issue of vested rights one normally seeks a distinction between others in the same class of people and the person who claims vested rights. The class of people here are those who own property with an intention of "some day" building on it. In what way is the Appellant distinct from that class?

The Appellant argues that his use and occupation of the land for approximately 18 years distinguishes him. One cannot, however, accept past use as such a distinguishing factor in this case. The time that elapsed between his removal of the building from the lot and his attempt to rebuild is, at two to three years, too long to allow that past history to be a factor.

While the Appellant argues a "continued intent" to rebuild, we find ourselves in the position of having to balance that against the public interest and safety issue raised by the sight distance requirements. In our view, the circumstances here require us to give greater weight to the public interest and safety issues than the interests of the landowner. As stated before, at this point in time we cannot see the Appellant any more injured by the law than other landowners whose property fails to meet the sight distance requirements.

These statements are not intended to suggest to the Appellant that there is no other remedy for the position he has been put in. However, such other remedies must be pursued through the Courts, not through the Commission.

Our conclusion, within the jurisdiction we have, is that for the reasons stated above the Appellant was properly denied a building permit in connection with property number 548925 at Howlan, P.E.I.

3. Disposition

For the reasons stated the appeal is denied.

IN THE MATTER of an appeal by Stanley Gallant against a decision of the Department of Provincial Affairs and Attorney General, dated February 13, 1995.

Order

WHEREAS Stanley Gallant (the Appellant) has appealed to the Island Regulatory and Appeals Commission (the Commission) in written notice dated February 16, 1995, against a decision by the Department of Provincial Affairs and Attorney General;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on May 15, 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 14th day of November, 1995.

BY THE COMMISSION:

Linda Webber, Chair

Carl Riggs, 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.