Order - LL92-07 - LA92006 - Planning Appeal - Desmond Rice v. Cross Roads Community Council (Aug 12, 1992)

DOCKET LA92006
ORDER LL92-7

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 Desmond Rice (the Appellant) of Cross Roads, against a decision whereby the Community Council of Cross Roads (the Council) denied approval for the subdivision of land (Provincial Property Number 299842) located at Cross Roads, Queen's County.

BEFORE THE COMMISSION

on Wednesday the 12th day of August, 1992

John L. Blakney, Vice Chairman
Clayton Bulpitt, Commissioner
James Nicholson, Commissioner

Order

Appearances

Desmond Rice the Appellant

George Campbell in support of the Appellant

John McQuaid legal counsel for the Appellant

J. Hank Spin Chairman, Community of Cross Roads Planning Board

Della Wood Administrator, for the Community of Cross Roads

DECISION

I. Background:

In accordance with the Planning Act and the Official Plan of the Community of Cross Roads and the Cross Roads Zoning and Subdivision and Control Bylaws, the Community Council of Cross Roads has the authority to approve the subdivision of land. Pursuant to Section 5 of the Bylaw:

Section 5. "Any person proposing to subdivide any land within the corporate limits of the community for the purpose of lease, sale, transfer, use or development shall make application for approval of the subdivision to the Council in accordance with the provisions of this Bylaw."

On May 5, 1992, Mr. George Campbell submitted an application to subdivide land to the Department of Community and Cultural Affairs (Department). He proposes to sever one lot from a parent parcel of land ( Provincial Property Number 299842) located at Cross Roads. The parcel from which the land is to be severed is a vacant farm field. The lot dimensions are 200' X 200' and the proposed use is single family residential. The land is within a Residential Two Family (R2) Zone and a single family dwelling is a permitted use.

In 1985, Desmond Rice severed a large portion of land from the parent parcel that included a long portion, approximately 500` in length and 66` wide, expanding gradually to a width of 100` at the location where the severed parcel adjoins the public right of way. According to the approved plan of subdivision #12079A, the proposed R.O.W. or right of way forms a part of the severed parcel conveyed to Mr. Don Baker. The right of way, according to the plan of subdivision, divides the remainder of parcel #299842 into two separate parcels. The parcel to the west is land that is to be further divided as a result of George Campbell's application to subdivide.

The deed conveying the parcel with the proposed R.O.W. to Don Baker reserves for Desmond Rice, his heirs and assigns forever a right-of-way over the designated right of way "until such time as the said parcel of land is conveyed to the Province of Prince Edward Island for use as a public highway".

On May 8, 1992, John Hughes, Property Development Officer with the Department, inspected the property and reviewed the subdivision proposal as submitted. On May 11, Mr. Hughes advised the Administrator of the Community that it appeared the subdivision would "land-lock" a residual lot located to the rear of the proposed lot and that Council would have no alternative but to refuse the proposal.

Section 11(1) requires that:

Every lot or parcel shall have at least the minimum frontage on a public street or road for the intended use of the lot or parcel as outlined in this Bylaw and the Cross Roads Zoning Bylaw.

Consequently, the Community Council of Cross Roads decided to deny the application to subdivide the lot due to the absence of a public right of way to serve the rear parcel. On June 8, 1992, J. Hank Spin, Chairman of the Cross Roads Planning Board sent a letter to Desmond Rice on behalf of the Council informing him of Council's decision.

On June 23, 1992, Desmond Rice and George Campbell appealed the decision to the Island Regulatory and Appeals Commission. The appeal hearing was held on August 12, 1992, in the Commission hearing room at Charlottetown.

II. Evidence and Arguments

A. Appellant

Arguments for the appellant can be summarized as follows:

The remaining portion of the parent parcel (Provincial Property #299842) that is owned by Desmond Rice will have frontage on a public road called the old Georgetown Road which is illustrated by the map identified as Exhibit 14.

The lot to be subdivided and acquired by George Campbell will have frontage on a public right of way, Humphrey Drive and meets the requirements of the Bylaw. The problem the Council has is with the lot that will be created behind the proposed lot. The rear lot will not be land-locked because Desmond Rice has access across the right of way that serves the property owned by Don Baker and Mr. Rice has not given up his rights to access the residual parcel created as a result of the subdivision application.

The Community Council must have envisioned further development of the parent parcel (#299842) because of its decision to approve a right of way of at least 66' in width which meets the standards of a public right of way to serve future lots. It is clear from the deed of conveyance that both parties envisioned that someday the right of way would become a public street.

Refusal by the Community Council is in direct contradiction to its decision to approve the subdivision of Don Baker including the proposed R.O.W.

B. Community Council

Arguments for the Community Council of Cross Roads can be summarized as follows:

The Community Council understood that the Baker subdivision had to have 100' frontage on a public road and was in fact deliberately designed to meet the frontage requirements of the Zoning Bylaw. It is the opinion of the Community Council that the right of way separates parcel #299842 and that Don Baker owns the right of way and Desmond Rice only has right of access.

Based on the comments of the Property Development Officer with the Department of Community and Cultural Affairs and the opinion of the Community Planner and the recommendation of the Planning Board of the Community, the Community Council concluded that the severance of the parcel in the manner proposed would land-lock the residual parcel to the rear of the proposed lot. Consequently, if the Community Council approved the lot it would in turn approve the creation of a lot in contravention of Section 11(1). Therefore, the application to subdivide was denied.

III. Decision

Having considered the evidence presented during the hearing the Island Regulatory and Appeals Commission denied the appeal of Desmond Rice and George Campbell. The reasons for not allowing the appeal are:

The Commission agrees with legal counsel for the appellant that the lot that George Campbell submitted to the Community Council of Cross Roads for approval meets the public road frontage requirements under the Zoning Bylaw. However, in the view of the Commission the approval of the lot would create a residual lot that fronts on a proposed right of way that is now owned by Don Baker but is not a public right of way. The deed of conveyance is clear in that Desmond Rice has the right to use the land but does he have the right to develop the right of way for purposes of serving a land-locked parcel? It is the Commission's opinion that the reference in the deed to "until such time as the said parcel of land is conveyed to the Province of Prince Edward Island for use as a public highway" indicates only the length of time the right of way shall exist and not that Desmond Rice has a further right to develop it into a public road.

The Commission notes that Section 38 of the Bylaw requires the land owner or his agent make application for final approval.

Section 38. The application for final approval shall be made by the owner or his duly authorized agent.

It is the Commission's understanding that Don Baker is the owner of the right of way and that he is neither party to the application to subdivide the lot nor has he authorized Desmond Rice or George Campbell as his agents. Therefore, it is the Commission's view that the designated proposed right of way cannot be included as part of the appellant's plan of subdivision as submitted and therefore the plan does not include provision to serve the residual parcel of land.

Section 36 (1) of the Subdivision Control Bylaw permits final approval to be given to only a part of the subdivision:

Section 36 (1) The final subdivision shall conform substantially to the plan which was approved in principle, but the application for final approval need not be for the whole of the proposal described in the application for approval in principle."

The Commission believes that it would not be unusual for a subdivision proposal to be approved giving one lot final approval and reserving a right of way on the plan of subdivision to serve a lot or lots that could be developed in the future. However, considering the present proposal the Commission must conclude that the creation of the rear lot without reserving land for a public right of way to serve the lot would be in contravention of the Subdivision Control Bylaw. The Commission further concludes that without the owner (of the existing land designated as a proposed R.O.W. on the Plan of Subdivision #12079A) or his authorized agent making application for final approval to include the right of way as part of the plan of subdivision to serve the Don Baker parcel and the residual parcels resulting from the Campbell application, the subdivision can not be approved.

In part, a community adopts an official plan and zoning and subdivision control bylaw to try to ensure that its vacant land is developed in an efficient and effective manner through proper design. The Commission finds that the Community Council acted in a proper manner in deciding to deny this particular subdivision application. Council's concern for ensuring that the remainder of the vacant land in this part of the Community can be accessed for future development is commendable. However, considering the pattern of land severance in this area, it is the opinion of the Commission that, over the years, there has been little thought given to subdivision design that would not only ensure access to the interior properties but effective and efficient lot design and layout. The type of problem that has surfaced as a result of this matter is mainly due to the failure to deal with proper design when permission was first granted to subdivide the parent parcel. It appears that the objective was to merely meet the minimum requirements of the Subdivision Control Bylaw with little attention to how the remaining land would be developed. The result is difficulty in administering the Bylaw and perhaps lost opportunity for the land owner.

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 Desmond Rice (the Appellant) of Cross Roads, against a decision whereby the Community Council of Cross Roads (the Council) to deny approval for subdivision of land on property (Provincial Property Number 299842) located at Cross Roads, Queen's County.

Order

WHEREAS Desmond Rice and George Campbell (the appellants) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice Dated June 23, 1992, against a decision of the Department of Community and Cultural Affairs;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on August 12, 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 in Charlottetown, Prince Edward Island, this 13th day of October, 1992.

BY THE COMMISSION:

John L. Blakney, Vice-Chairman

Clayton Bulpitt, Commissioner

James Nicholson, CommissionerC