Order - LL92-06 - LA92003 - Planning Appeal - LeRoy Vessey v. Dept. of Community & Cultural Affairs (Jul 31, 1992)

DOCKET LA92003
DECISION AND ORDER LL92-6

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 LeRoy Vessey of Dunstaffnage, Prince Edward Island, against a decision whereby the Department of Community and Cultural Affairs denied approval for the subdivision of land (Provincial Property Number 142620) located at Dunstaffnage, Queen's County.

APPEAL HEARD BEFORE:

Linda Webber, Chair
John L. Blakney, Vice Chair
Myrtle Jenkins-Smith, Commissioner

Date of Decision: June 3, 1992

Date of Order: July 31, 1992

DECISION AND ORDER

Appearances:

LeRoy Vessey the Appellant,

Reuben Gunn in support of the Appellant,

John Pickard Subdivision Control Division, Department of Community and Cultural Affairs,

Stan Bishop Department of Community and Cultural Affairs,

Kent Smith Department of Transportation and Public Works,

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 proposals for the subdivision of land. Pursuant to Section 24(1) of the regulations:

Section 24(1) Subject to subsection (1.1), no person shall subdivide one or more lots (ten acres or less in size) in any area until he has submitted a plan thereof to the Minister and has received a certificate of approval therefor from the Minister.

The gradual increase in the rate of traffic flow and the change in the type of vehicles utilizing the roads of Prince Edward Island have and continue to result in the need to redesign highways to more efficiently and effectively handle the travelling public and the transportation of goods. Redesigns that result in physical realignment of roads can impact on the use of adjacent lands. That is, a change in the category or classification of a road resulting from redesign to deal with a particular level of traffic flow may require in some cases greater restrictions on highway access or in others require a more relaxed regulation. The matter before the Commission has to do with a specific parcel of land fronting on a road that was formerly a part of the arterial highway but now as a result of realignment of the highway is bypassed by the arterial. Even though the amount of traffic on the bypassed portion of the highway has significantly diminished the Planning Act Regulations continue to restrict development as if it were a collector or local road.

The site is a triangular shaped parcel of land approximately 3 acres in size which was a part of a parent parcel of land (Provincial Property Number 142620) 108 acres in size. Highway #2, a designated arterial highway of the Province, dissects the parent parcel. The old Dunstaffnage Road borders the triangular shaped portion to the north. Highway #2 borders its southern boundary. The 3 acre portion contains an existing residence and the remainder is in agricultural use.

The general land use in the area is agricultural with some residential encroachment in the area.

The landowner proposes to subdivide the 3 acre parcel into 3 lots each approximately 27,000 square feet in size, leaving a residual parcel that contains the existing residential dwelling. Each new lot will have a 100 foot frontage along the public road.

On the basis of the topographical character of the site and the proposed lot sizes the site appears to be suitable for residential use. The gradual slope of the land allows adequate surface drainage. There are no apparent environmental problems that will inhibit development of the proposed residential lots.

The old road including the portion fronting the site is paved and accommodates a low volume of traffic. The elevations along the road and its curvature restrict sight distance. Also a buffer of trees located along the road contributes to restricting sight distance.

On November 12, 1991, LeRoy Vessey made application to the Department for permission to subdivide the 3 acre parcel located on the north side of Highway #2. The application included a request to subdivide the parcel into four lots, three lots for residential development and the fourth lot being the residual containing the existing house.

On November 26, 1992, David Hume of the Department completed an inspection report on the site and found that although there appeared to be no problems with developing the site, "the sight distance is restricted below min. standards for all three lots." Therefore he recommended "refusal" but in addition expressed the following comments:

"... less traffic than a subdivision street. Reduced speed limit could be posted. Long grass &(sic) bush along the edge of R.O.W. could be cut. In my opinion access driveways are reasonable given the circumstances."(Exhibit 3)

These comments resulted in an inquiry by Stan Bishop to the Department of Transportation and Public Works concerning the development of sections of road that are now "disgarded or bypassed by a new section of Highway #2." Mr. Bishop, who at the time of the application review was Director of the Building Services and Development Division of the Department of Community and Cultural Affairs, described the situation as follows:

"..., this has become a kind of lay-by, a type of road design we may wish to encourage in the future to try and restrain development accessing onto the arterial highway. In this particular case, the Department of Community & Cultural Affairs would like to know whether or not your Department would consider reducing the speed limit to 40 km. per hour or such applicable speed that would permit this to be considered a local subdivision road.

I think the idea is worth pursuing ... ." (Exhibit 5)

In response to Bishop's inquiry, the Department of Transportation & Public Works after considerable correspondence replied, in the following fashion:

"The Planning Act Regulations set out standards for subdivision and development on various classes of highways. It is the class of highway, not the posted speed which has been the relevant factor in the type and frequency of development allowed along a highway.

On the existing highways, the presence of speed zones often reflects the effects of various design deficiencies and existing development on safety. Altering the Planning Act Regulations to tie development into posted speeds would encourage development at locations with safety problems now and make the task of future improvements at these locations more costly." (Exhibit 11)

After completing the evaluation of the application by LeRoy Vessey, on February 17, 1992, the Department decided to deny the application. On March 6, 1992, LeRoy Vessey filed a notice of appeal with the Island Regulatory and Appeals Commission, appealing the decision of the Department.

The Commission heard the appeal on May 4, 1992, in Charlottetown, Queens County.

Evidence and Argument:

The case for the Appellant can be summarized as follows:

(1) The site for the subdivision is on a side road where there is very little traffic mainly resulting from the two residences already located on the road. If the speed limit were lowered then the sight distance requirement would not be as high and therefore access to the proposed lots could be permitted.

(2) There is no need for the Department to have a 140 meter sight distance requirement apply to this type of road especially considering the small amount of traffic using the road. In order to improve the sight distance all that is required is to remove the trees from along side the road.

The case for the Department can be summarized as follows:

(1) The accesses to the lots are located on the "lay by road" which is approximately 1900 feet in length and in poor repair. The use of this road is limited to local traffic. The accesses are to be located along the road at locations where the sight distance standards pursuant to the Planning Act Regulations cannot be met. The Department of Transportation and Public Works did a visual measurement of the sight distances with a cone and wheel and found that they fell far enough short of the 140 meter standard not to justify a survey profile.

(2) The Planning Act Regulations set the same sight distance standard to speeds of 80 kmh as a 40 kmh zone. The unposted speed limit is understood to be 80 kmh as stipulated under the Highway Traffic Act. In order to allow the subdivision of the lots the Planning Act Regulations would have to be amended to tie sight distance to traffic speed or to set out a new classification of road that would permit a relaxed sight distance rquirement. Consequently,

"... based on Section 50.1(c) of the Regulations, which states,"Along any local highway no person shall construct or use any access driveway except where that access driveway meets the minimum sight distance standards set out in Schedule C to this Part."

(Exhibit 12)

the subdivision proposal had to be denied.

" Sight distance along the proposed frontage has been carefully checked by the Department of Transportation & Public Works, and they report that it does not meet the minimum requirements of the Planning Act Regulations; in other words, there is no location where new driveways can be safety(sic) located." (Exhibit 12)

Decision:

Unfortunately, the Commission is compelled to deny the appeal. The reason for the Commission's decision is as follows:

The Commission is cognizant of the importance of maintaining an effective and efficient road system in the province and certainly recognizes the importance of the Department of Transportation and Public Works continuing to concern itself with ensuring such objectives are maintained. However, the Commission does not believe that highway transportation is the only factor that should determine the settlement patterns of the province. It is the Commission's view that settlement pattern is a land use planning matter, a matter that clearly falls under the Planning Act and the responsibility of the Department of Community and Cultural Affairs.

Stan Bishop raised a significant land use issue with the Department of Transportation and Public Works. However, it is also clear from the record that officials of the Department of Transportation and Public Works were unwilling to consider any changes to the Regulations that would "tie development into posted speeds" which as the Deputy Minister put it "would encourage development at locations with safety problems now and make the task of future improvements at these locations more costly."(Exhibit 11).

The Commission believes that Stan Bishop was more than reasonable in presenting this particular site as an example where changes in road design and location left a paved road to serve local residential traffic where access to adjacent properties could be regulated in a different manner. Despite the admission of Jake Bartlett of the Department of Transportation and Public Works that in a 50 kmh zone the "minimum safe stopping distance" is a standard of 65 meters and in the case of a 60 kmh zone 85 meters, the regulatory standard applied to all speeds 80 kmh or less is a minimum sight distance of 140 meters (Exhibit 9).

The Commission finds that with the realignment of Highway #2 a small section of the former road was left that could serve a small residential settlement with a speed limit of no more than 40 kmh, as suggested by Mr. Bishop. In the opinion of the Commission, permitting the subdivision could serve to meet a residential demand and at the same time reduce pressure for development along the arterial highway in Dunstaffnage. Instead we have a situation where the use of land has been sterilized.

It is the Commission's opinion that the sterilization of land use is a very serious matter which results in limiting the rights of land owners far beyond what is contemplated by existing land use regulatory measures. Such drastic steps should not be taken without careful thought and consideration for all possible alternatives, especially in cases where compensation is not considered. Essentially herein lies the problem. Stan Bishop made what the Commission believes to be a logical and reasonable proposal based on his planning expertise and first hand experience with land use issues in the province. However, it is clear that even though Mr. Bishop raised the issue, the intolerant view of another department prevented further investigation into alternative approaches to dealing with a site that apparently could be developed for residential purposes.

The rather narrow approach taken by the Department of Transportation and Public Works and the unwillingness or apparent inability of the department responsible for land use planning in the Province of Prince Edward Island to pursue a solution to a situation that could be considered a missed opportunity is a symptom of even a greater problem. That is, in the Commission's view the existing approach to land use planning under the jurisdiction of the Province lacks a clear vision as to how our rural settlements should develop. Unlike municipalities with official plans that have clearly stated their objectives with respect to land use within their municipal boundaries, and respond to changing situations through a usually effective public process, it appears that the present approach to land use planning under the Planning Act Regulations cannot respond equally as well. The result is a missed opportunity to enhance an existing rural settlement and at the same time provide an alternative to relieve the demand for residential development along arterial highways.

The Commission notes that there appear to be no other impediments to developing the 3 acre parcel for residential development other than the 140 meter sight distance requirement. That is, there are no apparent environmental or land use concerns.

Despite the Commission's concern with the response to this issue by officials of the two departments the Commission has no choice but to decide this matter on the basis of the requirements of the Planning Act Regulations. The Commission finds that based on the evidence presented the subdivision proposal does not meet the sight distance standards pursuant to Section 50.1(c). Therefore, the Commission must reluctantly deny the appeal.

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 LeRoy Vessey of Dunstaffnage, Prince Edward Island, against a decision whereby the Department of Community and Cultural Affairs denied approval for the subdivision of land (Provincial Property Number 142620) located at Dunstaffnage, Queen's County.

Order

WHEREAS LeRoy Vessey (the appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice dated March 5, 1992, against a decision of the Department of Community and Cultural Affairs;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in 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 denied and the decision of the Department of Community and Cultural Affairs is confirmed in all respects.

DATED at Charlottetown, Prince Edward Island this 31st day of July, 1992.

BY THE COMMISSION:

Linda Webber, Chair

John L. Blakney, Vice-Chair

Myrtle Jenkins-Smith, Commissioner