Docket LA95003
Order LA95-20IN THE MATTER of an Appeal by Ernest Gallant against a decision by the North River Community Council dated February 6, 1995.
BEFORE THE COMMISSION
on Friday, the 1st day of December, 1995.
Linda Webber, Chair
Carl Riggs, Commissioner
James Nicholson, Commissioner
Order
Contents
Appearances & WitnessesReasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses
1. For the AppellantErnest Gallant
2. For the Community
Eldon Sentner, Administrator
3. For the Developer
Carmen Simmons
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 Ernest Gallant (the Appellant) against a decision of the North River Community Council to approve in principle the subdivision of Parcel Number 245290.
In accordance with the Planning Act, the Community of North River Official Plan and the Community of North River Zoning and Subdivision Bylaws, the Community of North River has the authority to approve the subdivision of land.
Carmen Simmons notified the Community Council by letter (not dated) that he intends to have a subdivision available for ... lots to be for sale or rent (Exhibit N13). A plan of subdivision was prepared on January 4, 1995 and submitted to the Community Council. The plan states lots 1 through 31 are for mini and modular home use only (Exhibit N12). On January 16, 1995 a revised plan of subdivision was prepared which states lots 1 through 32 are for mini and modular home use only (Exhibit N1).
On February 6, 1995 Eldon Sentner advised Carmen Simmons by letter that the North River Planning Board has given approval in principle for plan #1995-5-1 and final approval was subject to meeting a number of conditions (Exhibit N2).
On February 8, 1995 the Community Council met and discussed the proposed plan of subdivision. Council passed a motion to confirm the decision of the Planning Board to approve the subdivision application, subject to conditions.
On February 13, 1995 Ernest Gallant filed an appeal of this decision with the Commission. The Commission heard the appeal on May 17 and June 15, 1995, in Charlottetown.
2. Discussion & Findings
The position of the Appellant may be summarized as follows:
The Appellant argued that the Community Council erred in approving the application to subdivide.
He argues that both the application to subdivide and the plan of subdivision fail to meet a number of provisions as required by the Zoning and Subdivision Bylaws and Planning Act Regulations, including: the lot size standards for mobile homes; set back requirements for buffers; standards for road width; and the requirement for proper application for subdivision.
The Appellant further contends that Council did not discuss or agree in principle to sell a piece of land to the Developer which would allow for a 66 foot wide right-of-way to provide access to the property, and did not discuss or approve the granting of a minor variance.
The Appellant submits that the Commission must allow the appeal and order the application sent back to be reviewed by the Community Council for the new amalgamated Community of Cornwall.
The position of the Community may be summarized as follows:
Council adequately reviewed the subdivision application and approved the application with conditions because it complied with the requirements as set out in the Bylaws and the Regulations.
Council has given approval in principle and any issues or concerns which the Appellant has raised will be satisfied by the Developer prior to final approval.
Although minor technical errors may have been made, this is not enough for the Commission to overturn the decision of Council and allow the appeal.
Overall, the Community contends that this appeal is a nuisance and therefore should be denied - the proposed subdivision is good for the Community and should be allowed to continue.
Carmen Simmons, the Developer contested the Appellant's grounds for appeal arguing that the grounds are frivolous and the appeal should therefore be denied.
After giving full consideration to the evidence submitted in this case it is the decision of the Commission to allow the appeal. The reasons for the Commission's decision are as follows:
The application was filed by way of a letter from Carmen Simmons wherein he indicates an intention to subdivide lots for sale or rent. The preliminary sketch plans filed (Exhibits N1 and N12) indicate a development of 31 or 32 lots most with dimensions of 40' x 100'. The plans also indicate that the lots would be for mini and mobile home use only.
The evidence provided to the Commission indicates that at the Community Council meeting held on February 8, 1995, Council discussed, inter alia, the application to subdivide the parcel of land into 30+ lots for Mini and Modular Homes. Council also discussed the design of the lot layout, park land, streets, etc. and the intention of the Developer to sell or rent the lots. The Community Council concurred with the decision of the Planning Board and granted approval in principle with final approval subject to certain conditions relating to street design, drainage design, provision of water and sewer services and a 10% dedication of lands or funds (Exhibit N2). The proposed development is to be located in an area of the community designated in the Official Plan for mobile home park use.
Part of the difficulty with this application is its ambiguous nature: in some ways it appears to be an application for approval to create a mobile home court; in other ways it appears to be an application for approval to subdivide lots for single family use.
The matter is further complicated by the fact that the intended development is for mini and modular homes and not mobile homes per se. As Carmen Simmons describes in his letter of application - these are a new type of mini home that have no hitch or steel frame or wheels. However, by definition under the North River Zoning Bylaw a mobile home is described as a transportable dwelling unit suitable for permanent occupancy, designed to be transported by road on its own wheeled chassis (emphasis added). As Carmen Simmons describes, the mini home would be placed on a permanent foundation. In other words, mini homes as described by the developer are not mobile homes as defined by the Zoning Bylaw. Accordingly, the Bylaw provisions under the Mobile Home Court (RM1) Zone may not apply to the mini home development proposed.
From the evidence submitted, it appears that the Community Council treated the submission by the Developer as an application to subdivide land in the Mobile Home Park Zone and in so doing applied the bylaw requirements as set out in this zone. As a result, Council approved in principle Plan Number 1995-5-1 as submitted on January 10, 1995 which proposes to create 32 lots for sale or rent each measuring on average 40 feet wide by 100 feet in length.
The question before the Commission then, is whether or not these actions are consistent with the requirements of the Bylaws and Regulations.
Generally, the approval of a mobile home park allows the creation of lots for rental by owners of mobile homes. In other words, lots are not actually subdivided but simply designated within the park for use as mobile home sites, on a rental basis. Indeed, the Planning Act Regulations governing mobile home courts (specifically Part VII) provides for mobile home spaces within a lot or parcel of land. This clearly suggests that mobile home lots are not actually subdivided and conveyed as individual lots.
To seek further guidance on this matter we have reviewed the various definitions as set out in the Bylaws.
As such, a mobile home court is defined as:
a parcel of land whose layout is designed and serviced for the placement of mobile homes. (emphasis added)
This too suggests a single parcel of land on which mobile home lots or spaces are located.
On the other hand the subdivision of land is defined in the Bylaws as:
the division of any parcel of land into two or more parcels by use of a deed, a survey plan, or other legal instrument;
When these definitions are considered the distinction between the creation of a mobile home park and the subdivision of land for the conveyance of lots becomes clear. Fundamentally the creation of a mobile home park involves one parcel of land while subdivision involves the dividing of a parcel into two or more parts.
Although pursuant to Section 27.1 of the Bylaws a single family dwelling is permitted within the Mobile Home Park Zone, there is no prescribed standard for lot size. In reviewing the standards as set out in the bylaws for single family dwelling lots, the Commission finds that within the other zones, lots created for single family dwellings must have a minimum lot area of 15,000 square feet (30,000 square feet in the Agricultural Zone). Although this requirement is not stipulated in the Mobile Home Park Zone, the Official Plan is very clear on the Community's policy for land use and states that ... In order to retain low density suburban neighbourhood standards, the minimum size for a single family dwelling lot will be set at 15,000 square feet, with a frontage of not less than 100 feet. As a result, lots for single family dwellings must be at least 15,000 square feet.1 In this case, however, the lots proposed consist on average of 4,000 square feet with 40 foot frontage, and therefore fail to conform to the Official Plan.
As well, we note that in the Community's bylaws one of the general provisions for all zones is:
14.1 No permit shall be issued by Council unless the parcel of land in respect of which the permit is issued has frontage on a street.
This rule is also applicable to Mobile Home Parks (Bylaw 27.1)
In this respect the design of the proposed Mobile and Mini Home with a 66 foot wide right of way that would have to be deeded over to the Province (Ex. N4) would appear to be consistent with a unique "Park" that contained lots that could be sold individually. That would explain why the normal 25 foot wide right of way for a Mobile Home Park was not enough.
However, Council's reasoning here did not properly carry through to the actual lot sizes themselves. If the goal was to design a Mobile Home Park with lots that could be used for single family dwellings, we cannot agree that the minimum lot sizes for mobile homes would be sufficient. While Bylaw 27 is not as clear as it might be on this point, viewing the Official Plan and Bylaws as a whole we must conclude, as stated earlier, that the provisions of the Official Plan and Bylaws with respect to minimum lot sizes have not been met.
In addition, the Appellant has raised a number of issues relating to coastal area requirements, lot access, the "hazard" zone designation and roadway size for at least one lot (Lot 1).
As a result of its decisions on the matters referred to above, the Commission does not feel it is necessary to comment on any of these additional points.
Finally, the Appellant complained about the procedures followed in processing and approving the application, stating that Council itself did not make many of the required decisions. Rather, the Planning Board received the detailed information and Council was asked to approve Planning Board's decision.
The Appellant, as a member of Council at the time, must accept some responsibility for the procedures that were followed. While there were irregularities here, in the Commission's view they would not give rise to a basis for overturning the decision in this case.
However, Community Councils do need to be aware of and follow the procedures required by the Planning Act, where applicable, and their own Bylaws. Failure to do so could result in decisions being invalidated.
3. Disposition
Therefore, for the reasons stated the appeal is allowed and the decision of the Council to approve in principle an application to subdivide property number 245290 is hereby quashed.
IN THE MATTER of an Appeal by Ernest Gallant against a decision by the North River Community Council dated February 6, 1995.
Order
WHEREAS
Ernest Gallant has appealed the decision of the North River Community Council to approve in principle the subdivision of parcel number 245290;AND WHEREAS
the Commission heard the appeal at public hearings conducted in Charlottetown on May 17 and June 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 ActIT IS ORDERED THAT
1. The appeal is allowed and the decision of the Community Council to approve in principle the subdivision of property number 245290 is quashed.
DATED
at Charlottetown, Prince Edward Island, this 1st day of December, 1995.BY THE COMMISSION:
Linda Webber, Chair
Carl Riggs, Commissioner
James Nicholson, 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.
1
Pursuant to the provisions of Section 15.(2) of the Planning Act: The bylaws or regulations made under clause (1)(d) shall conform with the Official Plan and in the event of any conflict or inconsistency, the official plan prevails.