Docket LA98010
Order LA98-12

IN THE MATTER of an appeal by Merrill Oatway against a decision of the Miltonvale Park Community Council, dated June 8, 1998.

BEFORE THE COMMISSION

on Thursday, the 27th day of August, 1998.

Wayne D. Cheverie, Q.C., Chair
Weston Rose, Commissioner
Debbie MacLellan, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Legal Counsel:
Karen MacLeod

Witness:
Merrill Oatway

2. For the Community

Witness:
George Young, Council Chairman

Reasons for Order

1. Introduction

Merrill Oatway (the Appellant) has appealed a decision made by the Miltonvale Park Community Council (the Community) on June 8, 1998 to deny a building permit for an extension to an accessory building located on property number 562264 located at Miltonvale Park, P.E.I.

This appeal was filed with the Island Regulatory and Appeals Commission (the Commission) on June 23, 1998 pursuant to Section 28 of the Planning Act (the Act) R.S.P.E.I. 1988, Cap. P-8.

After due public notice the Commission heard the appeal on August 18, 1998 in Charlottetown.

2. Discussion

The Appellant

The Appellant's position may be summarized as follows:

The Appellant submits that the actual size of the main residence is 1,185 square feet and not 700 square feet as reported in Exhibit R2 by Frank MacEachern, the Community's Planner.

The Appellant states that when he purchased the property approximately four years ago there was an existing accessory building with dimensions of approximately 24 feet by 38 feet. At the time of purchase, this building was in disrepair and the Appellant has since renovated the building. The Appellant has requested a permit from the Community to add an extension to the existing accessory building with dimensions of approximately 24 feet by 24 feet. The Appellant also submits that this extension is almost 80% complete and since receiving the letter from the Community denying the permit (Exhibit R8) all work has ceased.

During the hearing the Appellant stated that he submitted an application for a building permit to the Community on February 16, 1998 (Exhibit R1) and was not informed of the Community's decision until he received a letter from the Community dated June 8, 1998 denying his permit (Exhibit R8).

The Appellant submits that he began construction on the extension of the accessory building because there were several matters which lead him to assume that a building permit would be granted. These include the Community cashing his cheque which was payment for the building permit application and a letter he received from a representative of the Provincial Tax Commissioner which referred to a building permit being granted (Exhibit A2). In addition, the Appellant states that he assumed a permit was granted because he was not advised by the Community in a timely manner that there were any problems and that the permit could not be granted.

Counsel for the Appellant referred to the Community's Bylaws, specifically section 4, paragraph 1) g), and argued that as the subject lot is approximately 1.5 acres, this would allow for four accessory buildings. Counsel argued that it would not be unreasonable to allow this extension and have one large accessory building as this would allow for a more aesthetically pleasing development.

In the alternative, Counsel for the Appellant argued that in calculating the permitted square footage for the accessory building the existing structure should not be factored in and as a result the proposed 24 by 24 foot structure would comply with the Bylaws requirement of being less than 50 percent of the first floor of the main building, pursuant to section 4, paragraph 1) f) of the Bylaws.

In addition, the Appellant submits that he is prepared to undertake to expand the floor area of the main residence, possibly next summer, if this will insure receipt of the building permit.

The Appellant requests that the Commission allow the appeal and issue a building permit to allow completion of the extension to the accessory building.

The Community

The position of the Community may be summarized as follows:

The Community acknowledged that the square footage of the house was reported inaccurately in Exhibit R2 and concurred with the Appellant's submission that the size is 1,185 square feet.

The Community argued that the original accessory building is approximately 912 square feet and fails to meet the provision of section 4, paragraph 1) f) of the Bylaws which limits the size of an accessory building to less than 50% of the first floor of the main building.

The Community submits that the existing and proposed extension to the accessory building do not comply with the provisions of the Bylaws and there was no alternative but to deny the permit.

The Community requests that the appeal be denied.

3. Findings

The Commission has considered the submissions of the parties as well as the Miltonvale Park Zoning and Subdivision Bylaws and has decided to deny the appeal. The reasons for this decision are as follows.

Section 4 of the Bylaws as it pertains to Accessory Buildings and Structures reads as follows:

Section 4 General Provisions for all Zones

Accessory Buildings and Structures

1.    An accessory building or structure shall be permitted in any zone, but it shall not:

a.    be used for human habitation except where a dwelling is permitted as an accessory use;
 b.    be built closer to a street on which the main building fronts than the main building is to that street.
 c.    be built closer than 3 feet to any lot line except for:

i.     common garages for semi-detached dwelling units may be centred on the mutual side lot line;
 ii.    boat houses and boat docks may be built to the lot line when the lot line corresponds to the water's edge;

d.    be built within 10 feet of the main building;
 e.    exceed the 22 feet in height;
 f.    exceed 50 percent of the area of the first floor of the main building;
 g.    be permitted if an accessory building already exists, except: where the lot size is in excess of one (1) acre, in which case, up to four (4) accessory buildings are permitted; or where it is an accessory use on a bona fide farm, in which case, there is no limit.

2.     Notwithstanding anything else in this By-law, drop awnings, clothes poles, flag poles, garden trellises, and retaining walls shall be exempted from any requirements under clause 1)a) of this part.

3.    Unless otherwise provided in this Section, no accessory building or structure shall be constructed:

a.     prior to the time of construction of the main building to which it is accessory, or

b.    prior to the establishment of the main use of the land where no main building is required. 1 accessory building for lots 1 acre or under, or 4 accessory buildings for lots over 1 acre.

According to the Bylaws, accessory building is defined as:

ACCESSORY BUILDING means a subordinate building or structure on the same lot as the main building devoted exclusively to an accessory use.

Main building is defined as:

MAIN BUILDING means any building in which is carried on the principal purpose for which the lot is used.

From the evidence it appears clear that the first floor of the main building is approximately 1,185 square feet. The existing accessory building is approximately 912 square feet and the extension under consideration is approximately 576 square feet. It is also important to note that the proposed extension is attached and part of the existing accessory building.

By applying the provisions of the Bylaws, the maximum square footage permitted for an accessory building is approximately 592 square feet. Therefore, the Commission finds that the existing structure (912 square feet) and the proposed extension (576 square feet) would be in violation of the Bylaws and therefore cannot be approved.

As to the position put forward by Ms. MacLeod, that one large accessory building may be more aesthetically pleasing than locating four accessory buildings on one property which the Bylaws permit, the Commission cannot accept this proposition. The Commission is of the opinion that regardless of the aesthetics created by this development, the Bylaws do not permit such a large accessory building – one which is greater than 50% of the first floor of the main building. As stated in many previous decisions, the power of the Commission is restricted to applying the applicable law to the facts of each case. The Commission is not a law maker. In this case, section 4 of the Bylaws does not permit an accessory building to be greater that 50% of the first floor of the main building. The facts clearly show that the accessory building is well in excess of the allowable limit, and therefore the Commission has no choice but to deny the appeal.

Should the Appellant carry out his plans to increase the first floor area of the main building then an extension to the accessory building may be permitted provided the provisions of the Bylaws can be satisfied, but this is a matter for the Community to consider.

As to the position put forward by the Appellant's Counsel that the existing accessory building should be grandfathered and therefore not included in the computation of the square footage of the accessory building, the Commission can find no support for this proposition.

With regard to the Appellant's submission that he began construction because he assumed a permit was or could be granted, the Commission believes this is not sufficient reason to construct a building without a required building permit. The reasons cited by the Appellant, i.e., the delay in processing the application for a building permit by the Community; the fact that the Community cashed his cheque as payment for the permit; and the letter received from the Provincial Tax Commissioner which referenced the granting of a permit, are not sufficient reasons for a party to contravene the Community's Bylaws and build without a building permit. The Commission does not condone this practice and emphasizes the need for strict application and compliance with all municipal Bylaws.

The Commission believes that sufficient argument may be made that had the Appellant waited for notification from the Community or even made an inquiry to the Community, he may have saved himself the expense of adding onto the existing accessory building. It appears from the Bylaws that the Appellant could have developed a separate accessory building which would be in compliance with the Bylaws. This, however, was not the case.

For these reasons the appeal is denied.

In closing, the Commission was struck by Ms. MacLeod's argument with respect to Section 5.5 of the Community's Official Plan which states:

Section 5.5 Building and Development Subdivision Applications

The following general procedures will be used in carrying out the requirements of the Zoning and Subdivision Bylaws:

(a)    Applications will be received by the Administrator. If the application is incomplete or lacking plan attachments, the Administrator will promptly advise the applicant of requirements. Any attachment which is larger than photocopy size will be required in 5 copies.

(b)    The Administrator will check applications to see that they conform with the Bylaws and will promptly inform the applicant if a permit cannot be issued because the application does not meet the requirements of the Bylaws.

(c)    Plans and applications will be referred by the Administrator to government staff in highways, engineering, environment protection, fire protection, and the community planner for advice and consultation as necessary.

(d)    Any application which proves to be routine and straightforward will be dealt with by the Administrator. Applications requiring Council's discretionary consideration will be submitted to Council for a decision at the next monthly meeting.

(e)    Immediately after a decision is made to approve or refuse an application, the Administrator will give written notice to the applicant.

It would appear that since the Appellant made application for a building permit on February 16, 1998 and did not receive written notice of denial until June 8, 1998, his application was not dealt with in a timely fashion. Section 5.5(b) does not appear to have been complied with. Certainly section 5.5(d) was not followed. However, in the end section 4 of the Bylaws prevails, and the appeal fails. While the Commission has reached this conclusion, it hastens to point out that the Community should pay close attention to its own Official Plan in the administration of its Bylaws. The lack of adherence to section 5.5 of its Official Plan did not result in a reversal of the Community's decision in this particular case, but in another fact situation, it could be fatal. The Community should govern itself accordingly.

4. Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS Merrill Oatway has appealed a decision made by the Miltonvale Park Community Council on June 8, 1998 to deny a building permit for the extension to an accessory building on property number 562264 located in Miltonvale Park;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on August 18, 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 THAT

1. The appeal is denied.

DATED at Charlottetown, Prince Edward Island, this 27th day of August, 1998.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Weston Rose, 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.