Docket LA97027
Order LA98-01IN THE MATTER of an appeal by Orchard Hill Park Inc. against a decision made by the City of Charlottetown dated September 8, 1997.
BEFORE THE COMMISSION
on Thursday, the 29th day of January, 1998.
Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner
Clayton Bulpitt, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Background
3. Discussion
4. Findings
5. Disposition
Order
Appearances & Witnesses
1. Orchard Hill Park Inc. (Appellants)
Represented by:
Leonard Mol2. The City of Charlottetown (Respondent)
Counsel:
David HooleyWitness:
Don Poole3. Clifford Downe (Intervenor)
Represented by:
Clifford DowneWitness:
Kenneth Downe
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. P-8 by Orchard Hill Park Inc. (the Appellant) against a decision made by the City of Charlottetown (the City) on September 8, 1997.The subject property is located in the former Community of West Royalty. Under municipal amalgamation in 1995, the former Community of West Royalty now forms part of the City of Charlottetown. The statutory authority for matters related to land use in the City are the Charlottetown Area Municipalities Act and the Planning Act. In addition, because of the transitional provisions in the Charlottetown Area Municipalities Act, the Community of West Royalty Zoning and Subdivision Control Bylaw #76 and the West Royalty Official Plan continue to remain in effect until such time as the City adopts a new Bylaw and Official Plan.
During this transitional phase, the City is also bound by its Planning Administration and Procedures Bylaw. The purpose of this Bylaw, as set out in section 2.1, is:
… to provide a single uniform administrative and procedural structure for the applicable Zoning, Building, Development and Subdivision Bylaw(s) of the former municipalities now forming the new City of Charlottetown…2. Background
On August 22, 1996 the Appellant made application to the City seeking a variance to the lot frontage requirements for lot number 60 located on Chelsey Circle and lot number 102A located on Kirkcaldy Crescent (Exhibit R2). This appeal deals with the City's decision on lot number 60 located on Chelsey Circle.
The variance sought for lot number 60 was for a 66.2 foot wide frontage instead of the required 75 foot standard in the Single Family Residential (R1) Zone. The subject parcel is presently identified as a public right-of-way and according to the Appellant continues to be owned by Orchard Hill Park Inc.
By resolution dated September 8, 1997 City Council rejected the application (Exhibit R17).
The Appellant filed an appeal with the Island Regulatory and Appeals Commission (the Commission) on September 25, 1997 (Exhibit A1.1).
The Commission heard the appeal, after due public notice, on January 20, 1998.
3. Discussion The Appellant The Appellant's position may be summarized as follows:In the Notice of Appeal the Appellant submits that the City has already approved a similar request for a frontage variance in the same subdivision on a lot fronting on the north side of Kirkcaldy Drive - lot number 102A which was part of the Appellant's application for a variance (Exhibit R2).
During the hearing Mr. Mol submitted that the subject property is presently identified as a public right-of-way and continues to be owned by the Orchard Hill Park Inc. According to the property map (Exhibit A3) the subject parcel is part of a 66 foot wide public right-of-way identified as Evergreen Lane. Evergreen Lane consists of the subject property and property identified as parcel number 386615 owned by Elwin Burke (a separate third party). This public right-of-way connects Chelsey Circle with Beachgrove Road.
Mr. Mol states that Orchard Hill Park Inc. was formed in 1972 and at that time land was subdivided into what is referred to as Orchard Hill Park. At this time, allowances were made throughout the subdivision for 66 foot wide right-of-ways in case they were needed in the future. Over the years some of these right-of-ways were used for streets while others which were not required were developed for single family dwellings. This was the case for lot number 102A located at Kirkcaldy Drive for which the City approved a variance to the frontage requirements.
Mr. Mol points out that these road allowances were owned by Orchard Hill Park Inc. and had never been deeded to any other party except as required at such time as they were needed for roads.
Mr. Mol contends that it is the intention of Orchard Hill Park Inc. to seek approval for lot 60 for residential use as it is no longer required for road access. Mr. Mol submits that the subject lot is not required as a right-of-way, because property number 386615 provides the most logical access for lots off Beachgrove Road. There is no need to have the right-of-way extend from Chelsey Circle to Beachgrove Road. The cost of services and the cost of purchasing the land from Orchard Hill Park Inc. would be expensive. (See Schedule A for location map)
According to Mr. Mol the present lot configuration has existed for twenty five years and there appears to be no demand to develop this right-of-way.
Mr. Mol also points out that, notwithstanding the less than standard frontage on lot number 60, he believes the overall area of the lot meets the requirements. He also noted that in more recent years there have been a number of lots in the newer subdivisions with less than 75 feet frontage and that this is different than the earlier days of the Orchard Hill Park subdivision because sewer and water services are now present.
Mr. Mol states that it is the intention of Orchard Hill Park Inc. to dissolve the company and in order to do this it must divest itself from the last remaining parcel in the subdivision. The Company believes that the development of this lot for residential purposes is the most logical use for this parcel. However, if this is not possible, then the Company simply wants to sell the lot to anyone who is interested.
The Appellant requests the Commission overturn the decision of the City and allow this variance.
The City
The City's position may be summarized as follows:
The City submits that the decision made by Council to deny the variance was made in accordance with the provisions of the West Royalty Zoning Bylaw and the Planning Administration and Procedures Bylaw. In addition, the City submits that Planning Board notified area residents and held a meeting to hear their concerns.
The City contends that they considered the submissions of all parties and decided that the right-of-way should be maintained in order to preserve future development options.
The City's position is that the granting of a variance is a matter within the discretion of Council and in this case Council exercised this discretion properly.
The City submits that a variance was approved for a lot on Kirkcaldy Drive as the circumstances concerning this lot are distinct from the subject property in that the Kirkcaldy Drive property is no longer required for a road access. This was based on the fact that the former Community of West Royalty had approved a lot north of the Kirkcaldy lot on England Circle and thereby, closed off any opportunity of the Kirkcaldy lot being used as part of a connector street (Exhibit R21)
The City requests that the decision to deny the variance be upheld.
The position of Clifford Downe
As contained in a submission to the Commission, Mr. Downe's position may be summarized as follows (Exhibit P1):
Mr. Downe states that he has lived on parcel number 386623 for approximately 28 years and received a deed for the land in 1987. His property consists of two lots identified as lot number 1 and lot number 3 of the Elwin Burke subdivision.
Mr. Downe contends that when he purchased his property he did so with the understanding that a 66 foot wide right-of-way joining Chelsey Circle to Beachgrove Road was reserved which would provide road frontage and access to lot number 3. Mr. Downe submits that without this access lot number 3 would be landlocked, with resulting diminution in value to his entire property. He also noted in his oral submission that the right-of-way has been there for twenty-five years, that people have acquired their property in this area based on this lot being a right-of-way and the right-of-way should, therefore, remain.
Mr. Downe requests the Commission uphold the decision of the City to deny the application for a variance.
Location Map
Schedule A
4. Findings
The Commission has considered the submissions of the parties and has decided to deny this appeal. The reasons for the Commission's decision are as follows:
The Commission believes that granting a variance to a municipal bylaw is a discretionary decision on the part of Council and the Commission is reluctant to interfere with the decision of elected representatives in the exercise of their discretion.
Notwithstanding, however, on appeal the Commission believes it is required to exercise independent judgment and in the form of a hearing de novo the Commission must consider the merits of each appeal and if it is necessary, the Commission could substitute its decision for the one appealed.
The City has authority to grant variances pursuant to the provisions of Sections 10.22 and 10.23 of its Planning Administration and Procedures Bylaw.
10.22(a)Where a building or development permit cannot be issued under the applicable Z.B.D.S. Bylaw(s) and where, in the opinion of the Development Officer, neighbouring properties will not be significantly or permanently injured, he may grant a variance from the applicable Z.B.D.S. Bylaw(s) of not more than twenty-five (25) percent after providing written notice by ordinary mail to all Affected Property Owners within one hundred (100) meters of the boundaries of the subject lot and describe the nature, extent and purpose of the variance to be granted.
10.22(b)
If no written objections are received within fourteen (14) calendar days from the date of mailing of the notice referred to Subsection (a) the variance shall be granted; however, if any objections are received within fourteen days (14) calendar days from the date of mailing of the notice referred to in Subsection (a) the variance will be automatically referred to the Planning Board which shall make such decision as it deems appropriate.
10.23
Where applicable Z.B.D.S. Bylaw(s) allows for variances in excess of the twenty-five percent (25%), the procedure prescribed in the applicable Z.B.D.S. Bylaw(s) shall govern but shall be applied, mutatis muntandis, in conformity with this Bylaw.
In granting a variance the Development Officer and in turn the City must be satisfied that neighbouring properties will not be significantly or permanently injured by this decision.
In deciding this matter, the Commission understands that Planning Board held a meeting on September 3, 1997 to hear comments from neighbouring landowners. According to the minutes from this meeting, Planning Board "discussed suggestions that if Ellens Creek Drive was extended to meet with the Elwin Burke property, the back portion of properties on Beachgrove Road could be developed as separate lots; however, no interest was expressed in paying for the cost of this street right-of-way extension. Board members were concerned about closing proposed right-of-ways and limiting future development in this area".
The Commission understands the Appellant's position that they simply wish to divest the company's interest in the property and that seeking a variance and developing the property for residential purposes would achieve this outcome. The Commission also understands that the development of a future road to join Chelsey Circle with Beachgrove Road may be expensive and that there does not appear to be any interest in doing so at this time.
The Commission does sympathize with the situation in which the Company now finds itself, however, the Commission also believes the City, when making such decisions, must consider the broader planning issues.
In this case we find that the subject property forms part of a proposed right-of-way, identified as Evergreen Lane - joining Chelsey Circle and Beachgrove Road. We also understand from the plans submitted that at one time it was contemplated that Ellens Creek Drive would extend westward and link with the proposed Evergreen Lane (Exhibit R20.3).
Since these plans were approved over 25 years ago, it would appear to the Commission that there has been little or no initiative undertaken by any of the parties associated with these earlier subdivisions to complete these plans. In reviewing these plans it appears to the Commission that the existing pattern of development has to a degree been influenced by these right-of-way proposals. What has resulted is an undesirable situation from a planning perspective with a dead end street, Ellens Creek Drive, and landlocked parcels – such as that owned by Clifford Downe. It is the Commission's opinion that to remove portions of these right-of-ways (as is proposed in the Appellant's application) at this time, in the absence of any comprehensive planning for this area, would limit the options available to correct these planning problems.
Although the Appellant objects to Council's decision to deny the application for a variance, they have not provided any evidence to support that the Council did not adhere to the municipal bylaws or that the decision not to grant the variance was wrong.
The Commission finds that the City complied with the provisions of the Bylaw and made a decision which was based on the broader planning interests of the area. The Commission believes the decision of the City to deny the variance and thus preserve the right-of-way to allow for future road access is appropriate. For these reasons the Commission denies this appeal.
The Commission understands that the City is currently developing an Official Plan and as part of this process the Commission would encourage City officials and local area landowners to examine this particular area to determine possible solutions to these planning problems.
5. Disposition
An Order denying the appeal will therefore be issued.
Order
WHEREAS Orchard Hill Park Inc. (the Appellant) has appealed a decision made by the City of Charlottetown on September 8, 1997;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on January 20, 1998 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 THATDATED at Charlottetown, Prince Edward Island, this 29th day of January, 1998.1. The appeal be denied.
BY THE COMMISSION:
Ginger Breedon, Vice-ChairArthur Hudson, 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.
