DOCKET LA92005
DECISION AND ORDER LL92-4IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to the Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Pen-Gil Enterprises Ltd. against a decision of the Department of Community and Cultural Affairs (the Department) to deny approval for subdivision of land on property (Provincial Property Number 406546) located at Seabrook, Prince Edward Island.
APPEAL HEARD BEFORE:
Linda Webber, Chairman
John L. Blakney, Vice Chairman
Myrtle Jenkins-Smith, CommissionerDate of Decision: June 3, 1992
Date of Order: July 31, 1992
Decision and Order
APPEARANCES
W.L. Pendergast, representing Pen-Gil
Enterprises Ltd, the Appellant
John Pickard, Supervisor, Subdivision Development Section, Department of Community and Cultural Affairs
Irene Profitt, Design Technician, Department of Transportation and Public Works
I. BACKGROUND
The following background information provides an overview of the sequential events leading to the decision by the Department.
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 or deny the issuance of a subdivision approval.
1. On October 23, 1991, W.L. Pendergast, President of Pen-Gil Enterprises Ltd. completed an Application for Permission to Subdivide Land and submitted it to the Department for approval (Exhibit 2). The application indicated that 24 lots were being proposed with the intended use being commercial and light industrial. The property number is 406546 at Seabrook.
2. Attached to this application was a letter from W.L. Pendergast (dated October 22, 1991) to the Department (Exhibit 3). The letter indicated, inter alia, that as requested by W.L. Pendergast, Brian Potter of Delta Surveys prepared a "preliminary plan" for submission to the Department. The parcel of land consists of approximately 14 acres situated on Highway #2 in Seabrook. The property contains an access driveway from Highway #2. In addition, the letter indicated that because W.L. Pendergast was out of province for the previous three weeks, the application for subdivision was not submitted, "before the announced freeze on subdividing of property on #2 Highway," and it was requested that "this application be considered and approved".
3. On October 31, 1991, John Pickard of the Department responded to Mr. Brian Potter regarding the application for a 24 lot subdivision (Exhibit 4). The letter outlined a change in regulations which would impact on the proposed development. The manner in which the proposed development would be impacted is stated below:
"Apparently the recently announced temporary moratorium on development along arterial highways does not affect proposals like this one, where a subdivision road is intended to serve the lots. On the other hand, we are still operating under the departmental policy whereby applications for more than five lots are being deferred until government decides how to implement the recommendations of the Royal Commission on the Land; it is now expected that this will happen during 1992. "
In addition, the letter indicated two alternatives for proceeding with the application:
"1. Leave the application as it is. We shall circulate it to other agencies for comments, carry out a site inspection, and then defer a decision until work on the Royal Commission recommendations is finished.
2. Revise the application to no more than 5 lots. A decision will then be made based on existing regulations, following collection of comments and site inspection."
4. By way of a letter dated November 6, 1991, W.L. Pendergast directed Brian Potter to revise the application for subdivision and re-submit it to the Department (Exhibit 5). The letter indicated that the application was to be revised as follows:
"1. Lot #1 - No change
2. Lots #13 and 14 to be combined, as this would make a more suitable building lot.
3. Lots 2 and 3 combined into one lot.
4. Lots 4 and 5 combined into one lot.
5. Lots 15 and 16 combined into one lot.
No further action to be taken in regard to remainder of lots in subdivision application, at this time."
5. On November 13, 1991, the original application for subdivision was revised from twenty-four (24) lots to five (5) lots (Exhibit 2).
6. On November 29, 1991, Mr. McCarville, Mayor of the Town of Kensington provided the following comments on the plan for development (Exhibit 6):
"Council objects to this sub-division for the following reasons:
1. No sewer or water systems in place and if private sewer installed this property extends to a small brook which leads to the Barbara Weit river - now polluted.
2. The Town has an Industrial Park, serviced with water and sewer and 3 phase power capable of accommodating commercial light industry.
3. Council feels this is another example of locating outside town boundaries to avoid taxes and yet will be applying for services in the future."
7. On December 13, 1991, Jim Young with the Department of the Environment provided the following comments relating to the proposed subdivision:
(Exhibit 7)"We recommend connection to the Town of Kensington's central water and sewer systems due to historical water contamination problems of the area and the density of the development is clearly more than 5 lots."
8. On January 16, 1992, Jake Bartlett with the Department of Transportation and Public Works commented as follows:
(Exhibit 9)"The proposal is to subdivide land adjoining Route 2 which is an arterial highway under the Planning Act Regulations. These regulations were amended in October, 1991, to prohibit the subdivision of land adjoining arterial highways between October 17/91 and April 17/92".
In addition Mr. Bartlett indicated that:
"Without knowing what regulations will be in effect after April 17/92, it is not possible to provide any definite direction to the applicant. Nevertheless the following comments are offered as general concerns.
1. The proposed land use of commercial or light industrial is a change from the adjacent land which is agriculture or residential. ... Development here, rather than in conjunction with existing development, would create more transportation demand because of the distance to potential customers.
2. A new commercial district here would create a lot of turning maneuvers on Rte 2, as this is the only entrance. ... If a new street was permitted here any changes to Rte 2 necessitated by the development would be at the developer's expense.
3. The proposed location is on a passing zone ... The provision of a new intersection here would require the elimination of 320m of the passing zone. This change would reduce the capacity of the highway...
4. Any street would have to provide access to the adjacent properties on the east and west."
Mr. Bartlett indicated: "Refusal Recommended".
9. On January 21, 1992 D.E. Hume with the Department of Community and Cultural Affairs completed a Site Inspection Check List (Exhibit 10) and recommended the proposal be refused for the following reasons:
"1. amended regulations, to prohibit subdivision of land adjoining arterial highways.
2. in conjunction with community concerns.
3. Part 1 - Statement of General Planning Principles & Policies Part V (a)(i)(ii)(iii), Part V Subdivision Regulations 24(2), 25(1)(f), 25(2)c Premature."
10. On January 24, 1992 John Pickard outlined the comments from the Department of Environment; the Department of Transportation and Public Works; and the Town of Kensington in a memorandum to S.W. Bishop.
In addition, John Pickard identified a difference of interpretation of the (October 17, 1991) amendments to the Planning Act Regulations :
"There is obviously a difference between Jake Bartlett's and Dennis Friesen's interpretation of the October 17, 1991, amendment to the Planning Act Regulations concerning subdivision along arterial highways, and I think this should be settled between our two departments.
If Jake's interpretation is correct, then we must refuse the application immediately under Sections 30.1 and 49.1...
On the other hand, if Dennis's interpretation is followed, we must ignore the amendments and deal with the proposal only as it is affected by other sections of the Regulations. In this regard it is my recommendation that the application is incompatible with existing land use in the vicinity, is also premature, and should therefore not be approved. Such a decision could be based on the following sections: 2C., 2.5(1)(e),(f),(g),(h) and (2)(b) & (c)..."(Exhibit 11).
11. After evaluating the application, on February 11, 1992, the Department informed Brian Potter that the application for subdivision was denied (Exhibit 13).
12. On February 20, 1992, W.P. Pendergast appealed the decision of the Department to the Island Regulatory and Appeals Commission (Exhibit 1). The appeal was heard on May 4, 1992.
II. EVIDENCE AND ARGUMENT
Arguments for the appellant can be summarized as follows:
1. Based on the existing surrounding land uses, i.e. large commercial and industrial developments, the appellant argued that the proposed development would be compatible. In addition he argued that there is, "very light traffic entering or leaving the highway" and therefore there would be no traffic problems.
2. With respect to the comments by the Town of Kensington, the appellant argued that although the Town has an industrial park, the park is not located in an area which is appropriate for the type of businesses being proposed - "the park is away from the traveled areas and is away from the business areas of the Town". In addition, the development being proposed will provide an alternative to those who want to relocate.
3. The appellant perceived a possible conflict of interest based on the fact that the Mayor of the Town of Kensington is also the Manager of the Kensington Area Industrial Commission. The appellant pointed out to the Commission that the role of Manager of the Industrial Commission is to promote the Commission and to attract new businesses to the park. Although the Council objected to the proposed subdivision, as indicated in the response by the Mayor, the appellant indicated that he was unable to determine if Council as a whole discussed and voted on the matter. The appellant stated that he was not entitled to the minutes of the council meetings.
4. The appellant argued that there is a need for approved lots to accommodate new commercial development. The appellant outlined that the Resource Team Report prepared by Heritage Canada, supports his argument that there is a need for the development being proposed. The document states:
"that Kensington is in need of a country type store, mini mall, clothing store, shoe store, department store, home hardware, or Marks Work Warehouse type of store to serve the surrounding farming region." (Exhibit 14)
5. The appellant argued that the proposed development is not premature, because development has been permitted in similar cases. He stated that:
"this is an opinion that someone has and that I disagree with this statement because when McCains came in and invested $40 million in the area this was not considered premature development, however when a small developer wants to develop something then maybe it depends on the amount of dollars. This appeal should be considered in the same light as if it involved a large expenditure of money."
6. With respect to comments regarding sewerage and water, as outlined in a letter from Jim Young from the Department of the Environment, the appellant argued that although there may have been contamination of water wells in the area it was caused by inadequate installation. The sewage can be disposed with an on-site septic or lagoon system. As this is a preliminary application, the appellant argued that it should not be necessary to deal with all the possibilities and details of a final application for a subdivision.
Arguments for the Department of Community and Cultural Affairs can be summarized as follows:
1. The Department argued that the Resource Team Report prepared by Heritage Canada, does not have relevance to the proposed development. The report focuses on downtown development, while the proposed development is located approximately one mile from the town boundary.
2. The Department concluded that the subdivision of the property for the use proposed was inappropriate and therefore denied the application. The general planning principles and policies of the Planning Act Regulations state:
Part I. 2. C. - Subdivision Within One Mile of Towns and Communities
If serviced land is available within the town or community, no more than one lot per parcel within one mile of the town or community limits(or one lot for every ten chains of frontage if the parcel is large enough) will be approved, unless
(a) the developer is willing to pay the cost of extending available services from the town or community to his property; and
(b) the municipality is willing to extend such services.
The site is within one mile of the boundary of the Town of Kensington. Serviced commercial land is available within the town. The Department assumed that the municipality was not willing to extend services and that the developer would be unwilling to pay the cost of extending services.
3 In accordance with Section 25.(1)(e), the officials of the Department of Community and Cultural Affairs found that the proposal compromised the convenience and safety of access to the highway and their findings were supported by the comments from the Department of Transportation and Public Works. The Department also argued that their decision to deny the application was based on Section 25.(2)(b), which states that the: "proposed subdivision would be detrimental to the convenience, health or safety of occupants in the vicinity or the general public".
4. In accordance with Section 25.(1)(f), the officials of the Department of the Environment recommended that the subdivision be connected to the Town of Kensington's central water and sewer system and the Department "doubted" that the community would be prepared to extend the services to the site.
5. In accordance with Section 25.(1)(g), the land in the immediate area is predominately agriculture with some residential use. The proposed subdivision for commercial and light industrial development would conflict with the existing land uses.
6. Comments from the Department of Transportation and Public Works based on Section 25(1)(h), included concerns about the amount of traffic that could be generated and the alterations to the road system that would be required to accommodate the change in traffic patterns. In accordance with Section 25.(2)(c), considering that the subdivision will require an extra lane to deal with turning traffic and there will be pressures on the Town of Kensington to extend sewer and water services to the property, it was concluded that this would place undue pressure on the Town of Kensington and the Province to prematurely provide these services.
As a result of the arguments outlined above, the officials of the Department concluded that they were unable to grant approval for the proposed development.
III. DECISION
Having considered the evidence presented during the hearing, the Island Regulatory and Appeals Commission denies the appeal of Pen-Gil Enterprises Ltd.
In reaching its decision, the Commission reviewed the events which took place prior to and during the period in which the application was being processed. The Commission has great sympathy for a member of the public who completes an application which is subject to the milieu of rules, regulations and policies which are, it seems, in a constant state of flux. In this particular case it is evident that there are even conflicting views between departments - there is a difference of interpretation between the Department of Community and Cultural Affairs and the Department of Transportation and Public Works concerning the October 17, 1991 amendments to the Planning Act Regulations (as noted in Exhibit 11). The Commission views the current system as somewhat cumbersome and one which may only serve to bewilder members of the public who become involved in the planning and development process. However, despite this rather confusing situation, the Commission must decide this appeal on the basis of the following: the application (as revised on November 13, 1991); the basis for the decision of the Department to not grant approval for the subdivision; and, on the Planning Act and Regulations.
The decision of the Commission to deny this appeal is based on three issues:
1. Servicing
The policy and principles on subdivision of land within one mile of towns and communities (Part I, 2.C.) of the Statement of General Planning Principles and Policies and Section 25.(1)(f) of the Planning Act Regulations focus on the importance of orderly development and provision of services.
Part I, 2.C. states:
"If serviced land is available within the town or community, no more than one lot per parcel within one mile of the town or community limits (or one lot for every ten chains of frontage if the parcel is large enough) will be approved, unless
(a) the developer is willing to pay the cost of extending available services from the town or community to his property: and
(b) the municipality is willing to extend such services.
In addition, Section 25(1)(f) states:
"that any person wishing to subdivide land must show to the satisfaction of the Minister that the land being subdivided and the purpose for which the subdivision is intended has regard to the availability, adequacy and the economical provision of utilities and services."
With respect to 2.C., the appellant argued that the Department never asked him whether he was willing to pay the cost of extending services, and that there was no evidence to support the fact that the Town would not be willing to extend services to his development. The Department, he argued, merely assumed that he would not comply with these policies. Although the Commission recognizes the appellant's concerns with the assumptions made by officials of the Department, the Commission heard no evidence from the appellant that he was willing to satisfy these servicing requirements nor did he provide any evidence to suggest that the Town would be willing to extend the services to his development. With respect to the assumptions made by the Department, the Commission believes that the Department has a responsibility to ensure that the town is not willing to extend the servicing and that the developer is not willing to pay the cost. In the application and enforcement of regulations the Department should not rely on assumptions.
2. Transportation
In accordance with Section 25.(1)(e), the Commission must consider "convenience and safety of access" and Section 25.(1)(h), "segregation of traffic flow as between main and minor thoroughfares". The Commission agrees with the concerns raised by the Department of Transportation and Public Works officials, and believes that the segregation of traffic flow between major and minor thoroughfares may be compromised and that both convenience and safety of access may be impaired as a result of the proposed development.
3. Premature Development
It is the Commissions view that in the Statement of General Planning Principles and Policies, government has set out a direction for planning and development. As indicated:
"Part V (Subdivision Regulations) is designed to achieve the following goals:
(a) generally
(i) to control haphazard and unplanned development and prevent unnecessary loss of prime agricultural land,
(ii) to ensure a form of development in the province that is efficient in terms of servicing and provides a maximum of convenience and safety,
(iii) to minimize pollution, environmental degradation, and land use conflicts,
(iv) to promote good subdivision design and practice in accordance with recognized standards and principles; and
(b) specifically
...(v) to approve large subdivisions only where there is a demonstrated need for the subdivision and where it can be expected that the lots will be sold and built upon within a reasonable period of time."
In addition Section 25. (2) (c) of the Regulations requires that:
" 25. (2) No person shall be permitted to subdivide land if, in the opinion of the Minister, the proposed subdivision
(c) would precipitate premature development or unnecessary public expenditure, or would place undue pressures on the municipality or the province to provide services; ..."
The Commission finds little support in the evidence presented by the appellant with respect to his contention that the proposed development is needed at this time. When asked what specifically was to be provided in the area, the appellant was unable to say and even had difficulty in indicating whether the area would be more industrial than commercial in nature. Any argument that a subdivision is needed must be supported by at least some evidence, not just the opinion of the appellant, if the decision of the Department and/or the Minister is to be overruled.
Considering the matter of "conflict of interest", the Commission is of the opinion that in small municipalities, such as the Town of Kensington, it is not unusual to find community leaders holding more than one influential position within the community. Consequently, the Commission does not find it unusual that the Mayor of the Town of Kensington is also the Manager of the Industrial Commission. At the same time, however, the Commission understands why the appellant has perceived a possible conflict of interest. This perception has been formed due to the role that the Mayor plays in the assessment of subdivision applications, the comments made by him with respect to the position of the town council on the proposal, and the obvious responsibility of the Manager of the Industrial Commission to promote the development of serviced land available in the park. The Commission's view is that it is inevitable that community leaders will find themselves involved in circumstances where there is the possibility of a perceived conflict of interest. In the Commission's view it is the Community or Town Council's responsibility to ensure that development proposals are dealt with in an impartial manner when these situations arise. The Commission understands why the appellant thought that the Mayor was in a conflict of interest situation, however it finds that the evidence is not conclusive enough to allow the appeal based on a perceived conflict of interest.
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to the Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Pen-Gil Enterprises Ltd. against a decision of the Department of Community and Cultural Affairs (the Department) to deny approval for subdivision of land on property (Provincial Property Number 406546) located at Seabrook, Prince Edward Island.
Order
WHEREAS Pen-Gil Enterprises Ltd. (the appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice Dated February 20, 1992 against a decision of the Department of Community and Cultural Affairs;
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on May 4, 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 31st day of July, 1992.
BY THE COMMISSION:
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner