Docket LA95030
Order LA96-06

IN THE MATTER of an appeal by Sharron Kirkpatrick/Ingleside Lodge (1981) Inc. against a decision by the Resort Municipality, dated September 29, 1995.

BEFORE THE COMMISSION

on Monday, the 11th day of March, 1996.

John L. Blakney, Vice-Chair
Clayton Bulpitt, 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

Witnesses:
Sharron Kirkpatrick
Murray Russell

2. For The Resort Municipality

Witness:
Arnold Smith, Community Councillor

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 Sharron Kirkpatrick/Ingleside Lodge (1981) Inc. (the Appellant). The Appellant is appealing a decision whereby the Council for the Resort Municipality (the Council) requires the Appellant to relocate a four unit motel in order to comply with the required setback provisions of the Zoning and Subdivision Control Bylaw.

In accordance with the Planning Act, the Official Plan for the Cavendish Planning Area and the Zoning and Subdivision Control Bylaw, the Council for the Resort Municipality has the authority to enforce requirements for the setback of a building from the front lot line of a lot.

The subject property is identified as Parcel Number 232322 and is located in Cavendish within the H1 Heritage (Cavendish Centre) Zone under the Zoning and Subdivision Control Bylaw .

On September 8, 1995, the Appellant completed an application for a building permit and submitted it to Council for approval. The application constitutes a request to permit a four unit motel to be moved on to the property (Exhibit RM1).

On September 19, 1995, the Council for the Resort Municipality issued a building permit with conditions (Exhibit RM3). Permission was granted to move a 4 unit motel (65' x 18') from Highway 13 beside our Lady of the Way to the main property at Ingleside Lodge, subject to:

  1. All vinyl siding be removed and replaced with natural siding before the opening of business at Ingleside Lodge in 1996.
  2. Meets the requirements of the Provincial Fire Marshall.
  3. Meets the requirements of the Department of Occupational Health and Safety
  4. Nine parking places be allocated for the new motel unit.

On September 25, 1995 the Appellant moved the motel units to the property.

On September 29, 1995, Council advised the Appellant by letter that as the location of the four unit motel does not meet the proper setback requirements for the Heritage Zone the motel will have to be moved in order to comply with the Zoning and Subdivision Control Bylaw (Exhibit A1).

On October 18, 1995, the Appellant appealed the decision of the Community Council to the Island Regulatory and Appeals Commission (the Commission) (Exhibit A3).

The Commission heard the appeal at a public hearing on December 6, 1995.

2. Discussion & Findings

The case before the Commission involves the relocation of a four unit motel on property number 232322. The motel was moved by the Appellant on to the property and positioned approximately fifteen feet from the front lot line of the lot.

The Community submits that the location of the motel is in violation of Section 44.(6)(e) of the Bylaw, which states:

No building shall be nearer than 25 feet to the front lot line.

The Appellant stated that she agrees that the location of the four unit motel is in violation of the Bylaw, however, she believes the Community did not properly inform her of the Bylaw requirements.

The Appellant argued that she measured the setback from the edge of the pavement to the rear of the building which was approximately thirty feet. The Appellant interpreted the meaning from the road (which is what she stated on her application) and from the edge of the pavement (the actual point of measurement) to be synonymous.

The Appellant contended that sometime after submitting the application for a building permit and before the motel units were placed on the site she notified the Community Administrator and confirmed with her how the measurement was taken. At no time did the Administrator inform her that her measurements were incorrect and that the measurement should be taken from the front lot line to the nearest main wall of the building. The Appellant argued that had the Community notified her of this requirement she would have complied as there is ample room on the property to accommodate this provision. The Appellant believes that this is an officially induced error and not a deliberate attempt by her to violate the provisions of the Bylaw.

The Appellant contended that to remedy this situation, by moving the four unit motel back ten feet in order to comply with the Bylaw requirements, would cost in excess of $4,000.

The Appellant believes that the appeal should be allowed and that the motel units be permitted to remain in its current location. In the alternative, the Appellant has stated that if the units must be moved, the Municipality should be responsible for the cost.

Council's position is that when they review an application, they rely on the information provided by developers / applicants to be accurate and complete. In this case, Council reviewed the application for a building permit, as submitted by the Appellant, and interpreted that the notation at the bottom of the site plan - 25' from road suggested that the measurement was taken from the edge of the road right-of-way (Figure 1 is a copy of the Site Plan as submitted by the Appellant in Exhibit RM1) .

FIGURE 1

SITE PLAN AS PREPARED BY SHARRON KIRKPATRICK

With Notation - 25' From Road Highlighted

(from Exhibit RM1)

Council submitted that they relied on the application and the above noted site plan to determine whether the proposed location of the building complied with the bylaw requirements.

Arnold Smith explained that Council's interpretation was logical if one refers to the Bylaw and the definitions for street and setback.

That is under the Bylaws:

street means the whole and entire right-of-way of every highway, road or road allowance vested in the Province of Prince Edward Island.

And where

setback means the distance between the street line and the nearest main wall of any building or structure and extending the full width or length of the lot.

Council argued that there is a responsibility on all applicants to conform with all bylaw requirements and, in this case, the Appellant should have known the setback provisions. In the view of Council, the blame falls on the Appellant and it is her responsibility to pay the cost to remedy the situation.

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

In reviewing this matter the Commission has examined the provisions of the Bylaw which set out the mandatory procedures and requirements which must be complied with by applicants and the Community before a building permit can be issued, including site plan requirements and the site plan review process. In addition, we have examined the information required to complete an Application for a Building Permit and the requirements and conditions as contained in the Building Permit issued by the Community.

The applicant's responsibilities before development can occur are set out pursuant to the provisions of Section 8. of the Bylaw where it states a building permit must be applied for and received. The application procedures are set out in Section 13 which require any person applying for a permit to do so on a form prescribed by Council.

In this case, the Appellant completed an application identified as Exhibit RM1. As part of this application, Section 10 requires a development sketch or site plan to be completed by the applicant, which must provide, inter alia, the dimensions of the lot and the distance the building is to be placed on the lot from the property lines.

In addition, Appendix B, Section 1 of the Bylaw sets out Site Planning Guidelines which require a site plan to contain such information as all property and street pavement lines and the location of buildings. Applicants shall be responsible to provide a site plan which conforms to the requirements of this Bylaw when submitting a standard building permit application.

The Building Permit also states that the permit is issued subject to the applicant's compliance with the provisions of all regulations under the Bylaw.

The Community's responsibilities to ensure the proposed development conforms to bylaw requirements are also set out under Section 13 of the Bylaw, which states:

Section 13

…

3) Upon receipt of the application, the Administrator shall determine whether the proposed construction or change of land use conforms in every respect with this Bylaw, and with any other pertinent bylaws or laws which may be in force in the Municipality.(emphasis added)

4) Where an application is not entirely clear in its intent, or where an application does not appear to conform with the provisions of this Bylaw or any other pertinent bylaws or laws which may be in force, the Administrator shall submit the application to Council for interpretation and instruction.

…

6) Upon being satisfied that an application is in conformity with all Bylaws and other laws in the municipal, the Administrator may issue a permit... and after consideration of all pertinent factors the Council may, in accordance with this Bylaw, instruct the Administrator to issue a permit for other uses.

Furthermore, the Site Plan Review Process as contained in Appendix B, Section 1 - Site Planning Guidelines states that the site plan shall be examined by the Administrator for adequacy and completeness:

Every site plan submitted with a standard building permit application shall be examined by the Administrator for adequacy and completeness, and the applicant shall be notified in the event that the plan is inadequate or incomplete, so that the necessary revisions can be carried out by the applicant.

In accordance with these bylaw provisions, the Commission believes there is an onus on the Administrator to insure that the proper information is submitted with an application. There is also an onus on the applicant to insure that the development complies with the Bylaws. In the view of the Commission, both the Administrator and the Applicant have a responsibility to insure proper information is before Council.

The Commission believes that the situation in which the Appellant now finds herself is not as a result of any deliberate attempt to violate the bylaw. The Commission does sympathize with the Appellant and the circumstances in which she finds herself, especially after spending a considerable amount of money to relocate the motel units. However, in deciding an appeal pursuant to Section 28 of the Planning Act, the Commission is confined to the existing law when making its decision in the same way as the Municipal Council. In this case the decision of the Commission is confined to the Resort Municipality Zoning and Subdivision Control Bylaw. In order to allow the appeal, the Commission would be required to in effect exempt the Appellant from the setback requirements of the Bylaw, which is beyond the jurisdiction of the Commission. The unfortunate position the Appellant finds herself in, would not be reason enough for the Council to exempt her from the setback requirements of 25 feet nor to allow the Commission to grant an exemption from the Bylaw.

Based on the evidence, the Commission finds that Permit Number 95-C-044 issued to Sharron Kirkpatrick on September 19, 1995 does not comply with the provisions of section 44.(6)(e) and as a result must be revoked.

In the result, and for the reasons stated, the Commission denies the appeal.

3. Disposition

An Order denying the appeal will therefore be issued.

IN THE MATTER of an appeal by Sharron Kirkpatrick/Ingleside Lodge (1981) Inc. against a decision by the Resort Municipality, dated September 29, 1995.

Order

WHEREAS the Appellant has appealed a decision of the Resort Municipality dated September 29, 1995, to move a four unit motel in order to comply with front yard setback provisions of the Bylaw;

AND WHEREAS/UPON the Commission heard the appeal at a public hearing conducted in Charlottetown on December 6, 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.

DATED at Charlottetown, Prince Edward Island, this 11th day of March, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Debbie MacLellan, 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.