Docket LA97005
Order LA97-09

IN THE MATTER of an appeal by Kevin Costello against a decision of the Town of Stratford dated February 26, 1997.

BEFORE THE COMMISSION

on Wednesday, the 2nd day of July, 1997.

Linda Webber, Chair
Anne McPhee, Commissioner
Emmett Kelly, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Reasons for Decision

4. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Witnesses:
Kevin Costello
Lorraine Costello

2. For the Town

Counsel:
John K. Mitchell

Witness:
Philip Wood, Planning Consultant

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Kevin Costello (the Appellant) against a decision by the Town of Stratford (the Town) to deny an application for a development permit to construct a single family dwelling on Provincial Property Number 744250.

The subject property is Lot #20 in Bellevue Court located in Bellevue Cove Subdivision which is in the former Community of Cross Roads, now part of the newly amalgamated Town of Stratford.

In accordance with the Act, the Cross Roads Official Plan (Revised 1985) (the Plan) and the Town of Stratford Zoning and Subdivision Control Bylaw: Cross Roads Area as amended in 1995 (the Zoning Bylaw), the Town has the authority to issue development permits.

On February 19, 1997 the Appellant made an application to the Town for a development permit to construct a single family dwelling on the subject property (Exhibit T-1).

On February 26, 1997 the Town advised the Appellant by letter that his application for a development permit was denied. The reasons stated for denying his application were:

…

You should be aware that this subdivision was approved for summer cottages only. This subdivision has no central services and no public roadways. Accordingly no year round residences are permitted. You may, however, develop this property for cottage use. (Exhibit A-1).

…

On March 7, 1997 the Appellant filed a Notice of Appeal with the Commission (Exhibit A1).

The Commission heard the appeal at a public hearing on June 4, 1997 in Charlottetown.

2. Discussion

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

The Appellant and his wife gave evidence during the hearing that they purchased the subject property in 1988 with the assumption that they would eventually build a single family dwelling and live there on a year round basis. During the hearing the Appellant stated that there are a number of dwellings in Bellevue Cove subdivision that are occupied year round. The Appellant states that he is prepared to provide the necessary services, including garbage and snow removal.

The Appellant submits that although the subject property is located in a subdivision approved for summer cottage use only, the Zoning Bylaw designated the area in which the subject property is located as Coastal Development (CD), which allows, among other uses, all uses permitted in the R2 Zone. The Appellant argues that since a single family dwelling is a permitted use in the R2 Zone, a single family dwelling should be permitted on the subject property.

The Appellant contends that the agreement entered into by the original developer (Bellevue Cove Enterprises Inc.) and the Bellevue Cove Cottagers' Association with the Cross Roads Community Improvement Committee was "intended to only bind the original developer as the owners are not party to this contract" (Exhibit A3).

The Appellant further argues that subsection 14.(2)(a) of the Zoning Bylaw provides the authority for the Town to allow him to construct a single family dwelling on this property.

During the hearing the Appellant raised the issue that neither the Zoning Bylaw nor the subdivision agreement provide a definition for "summer cottage", "summer residence" or "seasonal residence". He stated that when he asked the Town for clarification of the term "seasonal residence" he was told that a person could reside in a seasonal residence for up to eight months of the year. The Appellant questions how the Town would be affected if he and his wife lived in the dwelling for 8 months or for 10, 11, or 12 months.

The Appellant also questions whether the Town has the authority to approve a development permit for a summer cottage on a lot which fronts on a private street and to require a person to enter into an agreement with the Town certifying the use as "seasonal residence".

The Appellant requests the Commission to overturn the decision of the Town and permit him to construct a single family dwelling on the subject lot. The Appellant also requests that he not be compelled to sign an agreement certifying the dwelling to be a seasonal residence.

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

In denying the Appellant's application for a development permit, the Town states that it relied on Part VI, Section 14.(1) and Part 2, Definition 66 of the Zoning Bylaw and the Housing Objectives and Policies for the Coastal Area specifically the Public Street Policies as set out in the Official Plan.

As to the Appellant's contention that the development could be allowed pursuant to Section 14.(2) of the Zoning Bylaw, the Town submits that this provision allows Council to approve a development permit for a residential or commercial structure which fronts on a private right-of-way, provided that no reasonable provision can be made to provide access to a public street. The Town maintains that the intent of this section is to allow exceptions where the configuration of the lot would require a right-of-way to access a public street. The Town contends this provision should not be applied in this case.

The Town provided evidence (Exhibit T-8) that the streets contained in Bellevue Cove Subdivision, and in particular Bellevue Court upon which the subject property fronts, are private rights-of-way. Therefore, the Town cannot approve a development permit for a permanent single family dwelling.

The Town further argues that the subject lot was approved for "summer cottage use only" in 1978 in accordance with an agreement between Bellevue Cove Enterprises Inc. and the Bellevue Cove Cottagers' Association, and the Cross Roads Community Improvement Committee dated December 22, 1977 (Exhibit T-4).

During the hearing the Town explained that it is concerned with allowing permanent single family dwellings on private streets in cottage subdivisions because of the potential expenses incurred by a community when it is eventually pressured by these residents to provide services such as paved streets, garbage collection, snow removal, street maintenance, etc. The Town contends that if the Appellant was allowed to build a permanent residence on a private street, over 200 lots approved for "summer cottage use" in Stratford would be affected by such a decision. As a result, the Town now requires a person who wishes to build a cottage to enter into an agreement with the Town, certifying that the person will use the dwelling as a "seasonal residence" and assume all future responsibility for any services which may be required.

The Town requests the Commission deny the appeal.

3. Reasons for Decision

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 this decision are as follows:

As the Commission has stated in previous appeal decisions, we are bound by the same rules and regulations that must be adhered to by municipalities. In this case the decision of the Commission must have regard for the Cross Roads Official Plan (Revised 1985) and the Town of Stratford Zoning and Subdivision Control Bylaw: Cross Roads Area as amended in 1995.

The following facts were not contested by either party:

  • The subject property is located within the Coastal Development (CD) Zone (Exhibit T7).
  • According to Exhibit T1, on February 19, 1997 the Appellant made application for a development permit to construct a single family dwelling in Bellevue Court.
  • The Appellant intends to occupy the unit on a permanent year-round basis.
  • The letter from Serge J. Bernard, Provincial Chief Surveyor, states that Bellevue Court is a private right-of-way and has not been deeded to the Province for public purposes (Exhibit T8).

In deciding this matter, the Commission is guided by the Zoning Bylaw provisions that must be complied with to obtain a development permit.

Subsection 8.(1) of the Zoning Bylaw requires a development permit to be obtained before a development is undertaken.

ss. 8.(1)

No development shall be undertaken within the corporate limits of the Community unless a development permit granted by the Council has first been obtained.

…

Subsection 10.a) of the Zoning Bylaw requires a development to conform to all bylaws:

ss. 10.a)

Council shall not issue a development permit if, in the opinion of Council:

a) the proposed development does not conform with this Bylaw or any other bylaw, regulation or law in force within the town;

…

In denying this application, the Town's decision focuses on subsection 14.(1) of the Zoning Bylaw which states:

ss.14.(1)

No development permit shall be issued unless the lot or parcel of land intended to be used or upon which the building or structure is to be erected abuts and fronts upon a street. (Emphasis added)

According to Part II, definition 66 in the Zoning Bylaw street means:

Part 2.(66)

Street or Road - means the whole and entire right-of-way of every public highway, road or road allowance vested in the Province of Prince Edward Island, presumed to be a width of sixty-six (66) feet….(Emphasis added)

In addition to the provisions of the Zoning Bylaw, the issue of developing a permanent dwelling on a public street is addressed in the Public Street Policies as contained in the Town's Official Plan:

Permanent single family dwellings will be permitted on a lot approved for single family dwelling or summer cottage development only if the streets and roadways are public.

Based on the evidence that the proposed development is for a permanent single family dwelling to be developed on a lot which fronts on a private right-of way, the Commission finds that the proposal fails to satisfy the provisions of subsection 14.(1) of the Zoning Bylaw and therefore a development permit cannot be granted.

Although the Appellant stated during the hearing that he was willing to provide his own services if the development was approved, the Commission finds that in order to allow the appeal, the Commission would be required to, in effect, exempt the Appellant from the standards as set out in law; this is beyond the jurisdiction of the Commission. Based on the evidence, the Commission finds that the application for a development permit to develop a single family dwelling on Provincial Property Number 744250 must be denied.

As to the Appellant's argument that subsection 14.(2)(a) of the Bylaw allows the Council to approve a development permit for a residential structure on a private-right-of way, the Commission agrees with the Town that the most reasonable interpretation of this section is that it authorizes the Town to issue permits in such cases where the configuration of the lot would require a private right-of-way to access a public street such as a "panhandle" lot. Section 14.(2)(a) states:

Section 14.(2)

Notwithstanding the above noted Section, Council may approve a development permit for a residential or commercial structure which fronts on a private right-of-way, provided that the following criteria are met:

a) no reasonable provision can be made to provide access to a public street;

…

The case now before the Commission does not warrant such an exception.

During the hearing the Appellant raised several issues regarding the definition of "summer cottage", "seasonal residence" and "summer residence", and the Town's ability to approve a development permit for a summer cottage on a lot which fronts on a private street and to require a person to enter into an agreement certifying the use as "seasonal residence". While there may be merit in the issues raised by the Appellant, the Commission has not considered these matters in its decision of this appeal, because in this case, the Appellant was denied a development permit for a permanent single family dwelling and not a summer residence.

4. Disposition

For the reasons stated above, the appeal is hereby denied.

Order

WHEREAS Kevin Costello filed an appeal with the Commission on March 7, 1997 against a decision of the Town of Stratford;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on June 4, 1997 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 2nd day of July, 1997.

BY THE COMMISSION:

Linda Webber, Chair

Anne McPhee, 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.