Order - LL92-01 - Planning Appeal - Sandra MacMillan v. Dept. of Community & Cultural Affairs (May 22, 1992)

DECISION AND ORDER LL92-1

IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;

and

IN THE MATTER of an appeal, under Section 28 of the Planning Act, by Sandra MacMillan of Charlottetown, Prince Edward Island, against a decision whereby the Department of Community and Cultural Affairs placed a condition on Building Permit No. C-461-91 requiring a building setback of 500 meters from the ordinary high water mark. The permit is for the construction of a single family dwelling on Provincial Property Number 374272 located at Pt. Deroche, Queens County.

APPEAL HEARD BEFORE:

John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, Commissioner

Date of Decision: March 3, 1992

Date of Order: May 22,1992

DECISION & ORDER

Appearances:

Sandra MacMillan Appellant

Gerry MacDonald Chief Development Officer, Department of Community and Cultural Affairs

Rory Francis Deputy Minister, Department of the Environment

Clair Murphy Director, Water Resources, Department of the Environment

DECISION

Background:

In accordance with the Planning Act and the Planning Act Regulations, the Minister of the Department of Community and Cultural Affairs has the authority to approve subdivisions and grant building permits. Pursuant to Section 23 (1) of the Regulations:

Section 23(1) "The Minister may issue a building permit subject to conditions including such conditions as he may consider necessary to ensure compliance with these regulations."

On October 1, 1990 Sandra MacMillan submitted a letter (Exhibit 41) to the Department of Community and Cultural Affairs to find out whether or not a 55 acre parcel of land (Provincial Property #374272), owned by New Seabury Estates Ltd. and located at Pt. DeRoche could be used for a "4 bedroom vacation home/single family dwelling".

On the same day John Hughes, Property Development Officer with the Department of Community and Cultural Affairs forwarded a request for comments on the proposed development to Clair Murphy and Delbert Reeves of the Department of the Environment.

On November 30, 1990 the Department of the Environment responded to the request for comments with the following (Exhibit 38):

"This lot was inspected by Clair Murphy and Alan Godfrey in early Nov. 1990. It has been concluded that if development is confined to the area of the property greater than 300 metres inland on the high water line it cannot be refused. Development in this area should not seriously impact on the stability of the dune system or the productivity of the small wetland. This property is part of one of the most beautiful natural areas in the province. It is unfortunate that ecosystems such as this cannot be preserved for general public use."

In addition, Delbert Reeves of the Department of the Environment reported (Exhibit 37) on December 3, 1990 that:

"A review of the soils map for the area indicates that the majority of this property is of two soils types - Rocky Pt. and Dune Sand. (Rocky Pt. soils are described as permanently wet.) Any further evaluation as to the acceptability for on-site sewage disposal would require that we have a proposed area to check (i.e. 55 acres is too large to walk over and check completely). The developer must have a desired location we can check and make comments on. We will require a test pit to determine the depth to water at the chosen location."

Later, on December 27,1990, he also reported (Exhibit 36) to John Hughes the following:

"Further to my memo to you dated Dec. 3, 1990 I have reviewed air photos of the area and attempted to do a site inspection. The area was not accessible on this date but the air photos indicate that there may be areas acceptable for development of a single family dwelling. However, we are not prepared to make any concrete comments without a more detailed site inspection (i.e. the proponent should mark a desired location and be prepared to excavate test pits for inspection)."

Alan Robinson, also of the Department of the Environment commented on the proposal on February 4, 1991 (Exhibit 35).

"Unable to inspect this site at this time of year, however, any proposed wells for this property should be a minimum of 500 metres from the shore to minimize potential salt water intrusion problems."

On February 21, 1991 Garth Carragher, Property Development Officer, Department of Community and Cultural Affairs informed Sandra MacMillan by letter (Exhibit 34) that the parcel of land (#374272) "is suitable for construction of a vacation home\single family dwelling." However, one of the conditions of the approval was that :

" A structural setback of at least 300 meters from the high water mark on the shore-line being maintained."

Subsequent to the decision of February 21, 1991, Sandra MacMillan submitted a second request (Exhibit 31) on March 21, 1991 for consideration of a proposal to divide the 55 acre parcel into approximately two equal parts and were labeled parcels A and B. She requested the Department consider the suitability of permitting the construction of a 5 bedroom permanent single family dwelling on parcel B. Comments (Exhibit 30) by Garth Carragher on April 25, 1991 included the following:

"Because proposed sites are so large with vast tree growth and wet areas, a specific site for the cottages needs to be selected and marked by applicants. With respect to the creation of the two parcels both are farm parcels - No survey is required. Portions of both are within the CP Area also."

In response to the need for a specific site for development Brad Hart, a prospective purchaser of parcel B, made application (Exhibit 28) to the Department on July 5, 1991 to construct a single family dwelling. Subsequently, on July 11, 1991 the Department gave preliminary indications that the proposal could be approved (Exhibit 23).

"Pursuant to the present Planning Act Regulations, preliminary indications are that your above-mentioned proposal could be approved providing:

1. The assessment being done by the Dept. of the Environment pertaining to the physical characteristics of the property concludes with the Minister being satisfied that the property is suitable for development.

...

However, it is also necessary to note the following:

...

2. All the information conveyed in this letter is in conformance with only the present Regulations effecting development of the property in question.

Because these Regulations are subject to change, nothing in this letter relieves you from the requirements or prohibitions of any Regulations or Regulation Amendments which may be adopted by the Province before you obtain a building permit and sewage disposal system permit."

On July 18, 1991 an excavation of two test pits at the site of Brad Hart's single family dwelling proposal was made. Delbert Reeves reported (Exhibit 16) on July 25, 1991 the following findings:

"The area of the test pits was 1000 feet from the shoreline. The first test pit was excavated to a depth of 8 feet in a high area of an inland sand dune. Once through the vegetation, yellowish brown sand was encountered to the bottom of the test pit. This test pit was dry. The second test pit was excavated a short distance inland from the first pit and was located in a low area between the dunes. Once the vegetation was removed, wet sand was encountered to a depth of 5 feet. Shortly after excavation, water flowed into the excavation and collapsed the sides of the pit. The water table at this location appears to be at or near the surface for much of the year."

On August 5, 1991 Graham W. Stewart submitted a sketch (Exhibit 21) showing the proposed location of the building to be constructed on the parcel B to the Department of the Environment. On August 12, Richard Callaghan, Acting Deputy Minister of the Department of the Environment granted permission to Brad Hart," to alter portions of the natural physical and biological features of the sand dune formation" on parcel B (Exhibit 20). The permission was subject to certain terms and conditions that included:

a) "that there be no alteration or disturbance of natural physical or biological features (with the exception of a foot path) of the sand dune formation on the property included in the area extending 300 metres south of the ordinary or mean high water mark of the Gulf of St. Lawrence.

b) that development on the remainder of the property be limited to the following: one single family seasonal dwelling, appropriately sized waste water disposal system, one water well located 500 metres from the shoreline ... ."

Subsequently, on September 9, 1991 Sandra MacMillan applied (Exhibit 3) to the Department of Community and Cultural Affairs for a building permit to construct a single family dwelling on the portion of parcel #374272 previously referred to as parcel A. The application indicated a building setback of 350 meters from the ordinary high water mark of the shore of the Gulf of St. Lawrence. Sandra MacMillan subsequently made application (Exhibit 14) to the Department of the Environment for approval to alter the sand dune on parcel #374272. On September 20, 1991 the Department of the Environment granted permission "to alter the natural stabilizing features on portions of the sand dune formation on the property", subject to the following conditions (Exhibit 13):

a) "that there be no alteration or destruction of the natural stabilizing features, both physical and biological, (with exception of a foot path) on the sand dune formation on the property included in the area extending 500 metres south of ordinary high water line of the Gulf of St. Lawrence:

b) that the alteration of the sand dune on the remainder of the property be limited to the following: one single family dwelling (approximate dimensions 40 feet by 50 feet), an access road from the south side of the property to the dwelling that measures not more than 33 feet (10 metres) in width and appropriately sized waste water disposal system. The total area around the dwelling to be altered through landscaping shall not exceed 1 acre:

c) that there be no alteration or disturbance of the natural stabilizing features, including vegetation, on aforementioned property except as described in section (b);

d) with the exception of the separation distance between the Gulf of St. Lawrence and the proposed property development, the sand dune alteration shall occur as described in the letter dated September 18, 1991 submitted to the Department by you."

The Department of the Environment confirmed its position on the 500 meter setback requirement with the Department of Community and Cultural Affairs and as a result on November 28,1991 Building Permit No. C-461-91 (Exhibit 2) was issued to Sandra MacMillan to erect a single family dwelling subject to the following conditions:

(1) "The dwelling being sited not less than 500 metres from the ordinary high water line; and the proposal meeting the requirements and regulations of the Environmental Protection Act regarding sewage

disposal (see copy of requirements enclosed).

A separate application and permit for the on site sewage disposal system is required. A site plan will be required illustrating building, well, septic tank and tile field."

After receiving Building Permit No. C-461-91 and pursuant to Section 28 (1) of the Planning Act Sandra MacMillan filed notice of appeal (Exhibit1) against the decision of the Department of Community and Cultural Affairs to require a building setback of 500 meters from the ordinary high water mark with the Island Regulatory and Appeals Commission. The appeal hearing was held on February 18, 1992 in the Commission hearing room at Charlottetown.

Evidence and Argument:

The appellant's case can be summarized as follows:

1) In reference to Exhibit 31A, the appellant described the property. As one walks from the beach area they first encounter a 14' sand dune formation and 2 wet areas. The highest point of land is at approximately the 300 meter mark, however while standing on the beach one cannot see the hill. In the area towards the back of the property one cannot obtain a view of the water. In the appellant's view the natural building site is a band that crosses (east to west) both parcels A and B approximately 300 - 400 meters from the shoreline. At the 500 meter mark the land is not suitable as a building site and it is not suitable until you reach the 600 - 625 meter mark.

2) In her capacity as a real estate agent the appellant became involved in the property in 1989 as a listing agent and attempted to market the property. Although there was some interest in acquiring the property it was not purchased. In the summer of 1990 the property was listed for tax sale. The appellant decided that she was interested in acquiring the property to use in the short term as a summer residence but eventually to use as a retirement home. However, before acquiring the property she investigated the matter of obtaining a building permit. Consequently, she made application to the Department of Community and Cultural Affairs (Exhibit 41). The property has not been identified as environmentally significant. After her request was reviewed by the Department of Community and Cultural Affairs and the Department of the Environment she received an indication (Exhibit 34) that the land was suitable for development subject to conditions. One of those conditions being that a building setback of 300 meters from the ordinary high water mark would be required. In fact, Exhibit 38 clearly indicates that as far as the Department of the Environment was concerned:

"if development is confined to the area of the property greater than 300 meters inland on the high water line it cannot be refused. Development in this area should not seriously impact on the stability of the dune system or the productivity of the small wetland."

At a later date Brad Hart was told that parcel B would be suitable for development provided the building set back was 300 meters from the ordinary high water mark and permission was given to alter the sand dune (Exhibit 20). These decisions were reached after considerable investigation by the Department of the Environment.

3) On September 9, 1991 the appellant made application for a building permit to construct a single family dwelling on the property 350 meters from the ordinary high water mark. The previous approvals and indications from the Department of Community and Cultural Affairs that the site would be suitable subject to conditions led the appellant to believe that there would be little difficulty in obtaining a building permit requiring at least a 300 meter building setback. Despite the fact that Brad Hart had received permission to alter the sand dune on the portion of the property behind a 300 meter setback in August, the Department of the Environment changed its position and required her to alter the sand dune in the area extending from a line 500 meters from the ordinary high water mark to the rear of the parcel. Subsequently, the Department of Community and Cultural Affairs also changed its position and issued a building permit to construct a single family dwelling sited not less than 500 meters from the ordinary high water line. In the view of the appellant:

"This represents a reversal of the original recommendation of the Dept. of the Environment outlined to me in a letter from Community and Cultural Affairs, dated February 21,1991."

4) The appellant argued that Gerry MacDonald`s concerns over the reversal in a memorandum to Shauna Sullivan-Curley dated September 26, 1991 (Exhibit 9) were justified and there were no changes in the law since the initial review by both Departments. The reasons given by Rory Francis, Deputy Minister did not warrant the change in requiring a setback of 300 meters to 500 meters. The Department of the Environment indicated that:

"It is unfortunate that ecosystems such as this cannot be preserved for the general public use."

The appellant pointed out to the Commission that in this case the land is privately owned. Also, the Coastal Protection Policy of March 18, 1991 should not have been considered a factor in deciding her application. In fact the sand dune alteration permit issued to Brad Hart was given while the policy was in effect. After acquiring a legal opinion from the Department of Justice and what appear to be less than adequate reasons for the "reversal", Gerry MacDonald with the support of Stan Bishop recommended that the Department of Community and Cultural Affairs issue the building permit. Consequently, there is no good reason for the Department of Community and Cultural Affairs to have decided to set the condition for a 500 meter building setback from the ordinary high water mark

5) The appellant is willing to accept a building setback of 350 meters which appears to be the best building location. All she wants to do is to enjoy the property and the best site for a residence is between 300 to 375 meters from the ordinary high water mark. One cannot see the water at the 500 meter mark.

6) The Commission should allow the appeal.

Arguments for the Department of Community and Cultural Affairs can be summarized as follows:

1) After a chronological explanation of the manner in which the application was processed and the decision reached, Gerry MacDonald stated that the:

"Department of the Environment officials insisted that the 500 metre setback is essential to protecting the integrity of the natural area."

This opinion represented the professional advice provided to the Department of Community and Cultural Affairs by the Department of the Environment and formed the basis of the decision by the Deputy Minister of the Department of Community and Cultural Affairs to require the 500 meter setback.

2) The reasons for the condition were presented in evidence by Rory Francis and Clair Murphy.

(a) At the time of the October 1, 1990 application the Department of Community and Cultural Affairs requested comments from the Department of the Environment. The opinion on the development was given prior to the Coastal Zone Protection Policy which established a 500 meter restricted development area around the coast of the Province and prior to the creation of the Significant Environmental Areas Plan under the Natural Areas Protection Act. The area within which the site is located is included "in the area proposed for identification under the Natural Areas Protection Act" or the Significant Environmental Areas Plan which was approved by Executive Council on August 27, 1991. Mr. Francis pointed out that the special planning area designation under the Planning Act Regulations which included the Pt. Deroche area was lifted in 1979 because a management plan had not been done but now has been redesignated as an environmentally significant area.

(b) The proposal to subdivide and the building permit application seem to circumvent the intent of the Policy because it was for a single family dwelling for year round occupancy that would be on a road that is "only seasonally accessible". In fact, if one examines Exhibit 31, the dates were changed on the second application from March 22 to March 12 to ensure the application was filed before the date of the adoption of the Coastal Zone Protection Policy and the type of construction was changed from" vacation home which would have been prohibited under the Policy to year round single family dwelling" which was permitted. The stamp "Department of Community & Cultural Affairs Building Services Division appears to have been stampted March 22, 1991 and then restampted March 12, 1991". This was all viewed by the Department of the Environment as a way of getting around the Policy

(c) In consideration of the Coastal Zone Protection Policy and moreover the adoption by Executive Council of the Significant Areas Environmental Plan the Department of the Environment concluded that: "the development even with the 300 metre setback would destroy the continuity of one of the last expansive, undisturbed natural dune systems, dune and wetland systems in the Province." Exhibit 33 demonstrates the Department`s desire to maintain the integrity of the ecosystem by amending the sand dune alteration permit of Brad Hart by requiring a 500 meter setback rather than a 300 meter setback as originally approved. The decision by the Department of the Environment to require a 500 meter setback was made in relation to Brad Hart`s application and was a decision made prior to the application for permission to alter a sand dune system on September 19, 1991 by Sandra MacMillan. The Department merely applied the same setback requirements.

(d) The decision on the 500 meters versus the 300 meters is not technically defensible but the shift in position was brought about by a change in government policy and concern over maintaining the integrity of the natural dune system.

(e) Pursuant to the Environmental Protection Act it is the duty of Minister of the Environment to protect a natural dune system especially an ecosystem that has been identified as being significant and warrants protection.

(f) After a number of visits to the site it was determined that beyond the 500 meter point it is suitable for development. The Department would like to consider people's scenic view but it is not a relevant consideration in this particular case.

Decision:

Having considered the evidence presented during the hearing the Island Regulatory and Appeals Commission denied the appeal of Sandra MacMillan. The reasons for not allowing the appeal are:

(a) In reaching its decision the Commission spent considerable time examining the process that was followed by the Department of Community and Cultural Affairs in dealing with the development proposal for the property in its varied forms. The Commission has concluded that the appellant received inconsistent direction from both the Department of Community and Cultural Affairs and the Department of the Environment as the result of unclear and ever changing government opinion, policy and regulations. The inconsistent treatment of the application may have resulted from changes in the nature of the development being applied for however, the substantive issue did not change. That is, the development was to be built on a sand dune system and both Departments shifted their building setback requirement from a 300 meter setback to a 500 meter setback from the ordinary high water mark of the Gulf of St. Lawrence. The Commission has great sympathy for the public who are subjected to a system of regulation of land use and the environment characterized by inconsistent advice and ever changing direction. In the same manner, one must also sympathize with the civil servants who are expected to explain these situations to the public.The Commission notes the frustrations apparent in Gerry MacDonald`s memorandum of October 4, 1991 to Shauna Sullivan-Curly. However despite this rather distressing situation the Commission must decide this appeal on the basis of the building permit application filed on September 9, 1991 and the subsequent issuance of a building permit ( Permit No.C-461-91) with conditions.

(b) The Commission believes that despite the fact that there were previous applications for various types of developments (four bedroom vacation home and a 5 bedroom single family dwelling) from two different applicants who received approvals for development suitability with varying conditions, the relevant application for consideration in this appeal is the one received by the Department of Community and Cultural Affairs on September 9, 1991. It is the Commission's opinion that the appellant did not have an accrued or vested right to a building permit prior to the filing of the September 9, 1991 application, evident by the actual filing of a formal application. Therefore, the Commission concludes that it is this application that forms the basis for issuance of the building permit (C-461-91) which contained the condition against which the appellant filed her appeal on December 19, 1991. Although, the final disposition of the application was based on the review of previous applications by the Departments of Community and Cultural Affairs and the Environment the Commission's decision on this appeal must focus on whether or not the 500 meter setback can be varied to allow a setback of 300 to 375 meters.

(c) Based on the evidence presented by officials of the Department of the Environment the location of the property falls within a significant natural area. The area has been identified for its environmental significance. The fact that the special designation was lifted in 1979 by the Government of the day because a plan had not been adopted for the area does not delimit the environmental significance of the sand dune formation at Deroche Pond. The significance of this area was reaffirmed on August 29, 1991 by Executive Council (EC581/91) and included the site of the appellant's development proposal (Provincial Property Number 374272). In addition, prior to the application of September 9, 1991 by the appellant, Executive Council pursuant to the Planning Act, created a special planning area to be known as the Coastal Protection Area.

Section 80.1 (2) The Coastal Protection Area established under section (1) shall consist of those areas of the province located within 500 metres inland, or within 500 metres seaward of ordinary or mean high water mark of the shoreline of the province, including tidal inland waters.

In the Commission's view, staff of the Department of Community and Cultural Affairs and the Environment by virtue of the fact that a permit was issued accepted a 500 meter setback requirement as policy and regulation. It is clear to the Commission that the Minister of the Environment believed that, in this case, it was in the public interest to require a 500 meter setback. Consequently, the 500 meter requirement became a condition of a sand dune alteration permit issued on September 20, 1991 to the appellant pursuant to Sections 3, 22 and 28 of the Environmental Protection Act. It is the Commission's understanding that the property development officers of the Department of Community and Cultural Affairs rely heavily on officials of the Department of the Environment for their opinion on the environmental implications of development proposals. Section 15 (d) gives the Minister the authority to consider the natural environment in deciding whether or not to issue a building permit. Similarly, the Commission has the authority to consider the natural environment in deciding an appeal. The Commission does find that the issue of this appeal is environmental in nature and that it has the authority to examine the technical merits of the comments and recommendation of the Department of the Environment. Apparently, it was Alan Rankin, Deputy Minister of the Department of Community and Cultural Affairs who finally decided that the 500 meter setback would be a condition for issuing the building permit. Although he never appeared before the Commission to give evidence on the matter, the Commission believes that from the evidence presented he drew his conclusions from those reached by the Department of the Environment. The appellant argued that the 500 meter requirement could not be technically supported over the 300 meter requirement and this was confirmed by Rory Francis and Clair Murphy. It is the Commission's opinion that it can, in accordance with Section 15(d) examine the technical aspects of the environmental implications of the development and decide that the condition is unsubstantiated and allow the appeal or set a varied condition pursuant to Section 23(1) of the Regulations. The onus is on the appellant to present technical evidence that would substantiate a change in the set back requirements. In the view of the Commission, the appellant did not present the technical evidence to warrant varying the set back requirements. Even if the appellant had presented the evidence required to vary the condition, any change in the set back requirements would have little effect since it would not be in accordance with the Environmental Protection Act and the sand dune alteration permit issued by the Department of the Environment in accordance with that Act. According to the sand dune alteration permit the appellant must comply with the following:

" that there be no alteration or destruction of the natural stabilizing features, both physical and biological, (except of a foot path) on the sand dune formation on the property included in the area extending 500 metres south of the ordinary high water line of the Gulf of St. Lawrence;"

The Department of the Environment has determined that the dune system can only be altered 500 meters or more from the high water mark of the Gulf of St. Lawrence. Consequently, even if a building permit were issued without the 500 meter condition, the location of a single family dwelling on the site could not be any closer to the mean high water mark since excavation of the dune system would be required at the site of the construction. It follows then, that even if the Commission accepted the appellant's argument and allowed the appeal the sand dune alteration permit would first have to be varied in order for construction to proceed. The Commission does not have the jurisdiction to go behind the decision of the Minister of the Environment and make a determination to vary a decision taken under the Environmental Protection Act.

(d) The Commission agrees with Shauna Sullivan-Curley when she states in Exhibit #8:

"Mrs. McMillan can be advised that the issuance of the permit does not relieve her from compliance with other laws, including, the Environmental Protection Act.

...

An appeal to the L.U.C. (I.R.A.C.), even if successful, will not give Mrs. MacMillan the relief she seeks, as the appeal process does not cover Environmental Protection Act permits."

(e) The Commission finds in Exhibit #6 that the Department of the Environment, in the very beginning of this long process, made its concerns very clear on the matter of development on the natural dune system.

"the property is part of one of the most beautiful natural areas of the province. It is unfortunate that ecosystems such as this cannot be preserved for the general public use."

The Department of the Environment accepted the Coastal Protection Policy adopted by Executive Council on March 21, 1991 as Government's attempt to:

"establish new policies and a new legislative and program framework for development in the coastal zone"

Although the Commission recognizes the clear shift in the technical requirement from a building setback of 300 meters to 500 meters, in the view of the Commission it is reasonable to think that staff considered the Coastal Protection Policy and the acceptance of a System of Significant Environmental Areas in the Province of Prince Edward Island as finally clear Government direction with respect to development in the coastal area of the province. However, the Commission does not accept that the argument for preservation for the "general public use" is relevant.

(f) The Commission recognizes the argument of the appellant that the aesthetic quality of the property as a building site is enhanced from approximately the 300 to 375 meter mark with a water view. However, the Commission is not convinced that the case presented by the appellant substantiates allowing the appeal. The Department of Community and Cultural Affairs accepted the position taken by the Department of the Environment and although this represents a shift in position, the Commission has concluded from the evidence that the appellant has not been unduly injured by the decision. The appellant certainly acted on the initial indication that a 300 meter set back would be acceptable but only to pursue the sale of a portion of the property to another party and the development of the property. The appellant did not purchase the property as a result of the preliminary evaluation. The Commission also finds that the use of the property is not sterilized, Building Permit C-461-91 grants permission to construct a single family dwelling on the property, albeit not in the most preferred location from an aesthetic standpoint.

IN THE MATTER of an appeal, under Section 28 of the Planning Act, by Sandra MacMillan of Charlottetown, Prince Edward Island, against a decision whereby the Department of Community and Cultural Affairs placed a condition on Building Permit No. C-461-91 requiring a building setback of 500 meters from the ordinary high water mark. The permit is for the construction of a single family dwelling on Provincial Property Number 374272 located at Pt. Deroche, Queens County.

Order

WHEREAS Sandra MacMillan ( the appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), by written notice dated December 19,1991, against a decision of the Department of Community and Cultural Affairs;

AND WHEREAS the Commission heard the appeal at public hearings conducted at Charlottetown on February 18,1992 after due public notice;

AND WHEREAS the Commission has made a decision in accordance with the stated reasons;

NOW THEREFORE, pursuant to the Planning Act;

IT IS ORDERED THAT the appeal is hereby denied.

DATED at Charlottetown, Prince Edward Island, this 22nd day of May, 1992.

BY THE COMMISSION:

John L. Blakney, Vice-Chairman

Anne McPhee, Commissioner

Myrtle Jenkins-Smith, Commissioner