Docket: LA00119
Order LA00-16IN THE MATTER of an appeal by Brendan Reid and Louise Reid against a decision by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated August 30, 2000.
BEFORE THE COMMISSION
on Thursday, the 7th day of December, 2000.
Maurice Rodgerson, Commissioner
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses1. For the Appellants
Kay Wakelin
Garth Reid2. For the Respondent
Brenda MacDonald
Donald McKearney
Reasons for Order
1. IntroductionThis is an appeal under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 (the Act), by Brendan and Louise Reid (the Appellants) against a decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Respondent) dated August 30, 2000 to deny an application to subdivide five lots on property number 231571 located at Hope River (the subject property).
By Notice of Appeal dated September 18, 2000 (Exhibit A1) the Appellants appealed this decision to the Island Regulatory and Appeals Commission (the Commission).
After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear this appeal on November 23, 2000.
2. Discussion
The Appellants
The Appellants request that the subject property, which contains approximately 55 acres, be subdivided into five, eleven acre lots; one for each of the Appellants' children. The Appellants wish to preserve the subject property for rural use. The Appellants submit that there would be more protection to preserve the subject property for rural use if the existing RR zoning was maintained, and the Respondent made an exemption for the Appellants and permitted their requested subdivision into five parcels. The Appellants submit that if the subject property were rezoned to RD2 to permit the subdivision into five lots, a possible alternative approach identified by the Respondent, the subject property would lose its protection as a rural property.
The Appellants state that at the present time there are plans for one dwelling to be built on the subject property, pending approval from the Respondent. Presently there are no plans to erect other dwellings. The remaining land would continue to be used as agricultural land.
The Appellants' submit they have strong public support for their proposal to subdivide the subject property, as evidenced by letters of support from neighbors within the Respondent's boundaries (Exhibits A3 and A5) as well as letters of support from neighbors living outside the Respondent's boundaries (Exhibit A4).
The Appellants request that the Commission allow the appeal and order the Respondent to grant permission to subdivide the subject property into five, eleven acre lots while retaining its RR zoning.
The Respondent
The Respondent submits that under section 17.5 of its Zoning & Subdivision Control (Development) Bylaw (the Bylaw), it is not possible for a parcel of land zoned RR (Rural Zone) to be subdivided into more than two lots. The Bylaw does not allow the Respondent to waive the provisions of section 17.5 in order to accommodate the proposed subdivision of the subject property.
The Respondent referred to section 17.10 of the Bylaw and submits this section does not apply to negate the special requirements of the RR zone.
The Respondent notes that it had informed the Appellants of the option that they could apply to rezone the subject property from RR to RD2 (Resort Accommodations Zone) which would, if the rezoning was granted, permit the subject property to be subdivided into five lots.
Given the Appellants' concerns expressed at the hearing that the subject property be preserved for rural use, the Respondent suggests that the Appellants could consider the possibility of applying to the Respondent to rezone the subject property from RR to R1 (Residential Zone) which would, if the rezoning was granted, permit the requested subdivision while providing some protection against further development, as the new lots would be zoned for single family dwellings.
The Respondent requests that the Commission deny the appeal, as the Bylaw does not permit the Appellants to subdivide the subject property into five lots under its current RR zoning.
3. Findings
Following a careful and full consideration of the evidence submitted in this matter, and upon review of the applicable law, it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:
Where the subject of an appeal is a decision made by a municipality under its bylaws, as is the case in the present matter, the Commission's jurisdiction on appeal is provided for in subsection 28(1) of the Act which reads:
28.(1) Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission. (emphasis added).
The Commission, as an appellate body, has the power to hear the evidence and arguments presented by the parties and decide whether to allow or dismiss an appeal. The Commission, as a creature of statute, does not have absolute powers: it must apply the law as it currently exists.
In this matter, the Commission is bound by the Bylaw that governs the requirements for zoning and subdivision control in the Respondent municipality.
The following sections of the Bylaw are particularly germane to this matter:
17.1 SUBDIVISION APPROVAL
No person shall subdivide one or more lots or any portion of a lot and no person shall consolidate two or more parcels of land until the conditions of this Bylaw have been complied with and the applicant has received final approval from the Council.
17.5 SPECIAL REQUIREMENTS – RURAL (RR) ZONE
1) Within a Rural (RR) Zone, no person shall be permitted to subdivide from any existing parcel of land more than two (2) lots.
2) For the purposes of this Section “existing parcel” shall mean a parcel of land which was held in separate ownership as of November 30, 1991.
The Commission finds that the law is clear in this matter. The Bylaw provides for special requirements to apply to the RR zone, which prevent an existing parcel from being subdivided into more than two lots. An existing parcel is defined in subsection 17.5(2) as a parcel of land which was held in separate ownership as of November 30, 1991.
While not referred to in the Notice of Appeal (Exhibit A1), the issue of the applicability of section 17.10 of the Bylaw was raised at the hearing. Section 17.10 of the Bylaw reads as follows:
17.10 SEVERANCES / CONSOLIDATION
Notwithstanding the above provisions, Council may approve applications for single lot subdivisions, partial lots or easements and lot consolidations at its discretion, having regard for only those provisions which it deems applicable to each individual application, provided the application conforms with all other Sections of this Bylaw.
While section 17.10 does allow Council some latitude for discretion, it is restricted to single lot subdivisions, partial lots or easements and lot consolidations. As the present matter deals with an application to subdivide the subject property into five parcels, the Commission finds that section 17.10 does not apply.
The Commission acknowledges that the Appellants appear to have strong support for their subdivision application from nearby residents, as evidenced by Exhibits A3, A4 and A5. However, there is no provision for a waiver of the special requirements of the RR zone noted in section 17.5 of the Bylaw, even with strong public support. The stated objective of retaining ownership among family members, retaining land for agricultural use, and limiting development is laudable. However, the Commission is a creature of statute and must apply the Bylaw as it currently exists.
Since the Respondent did correctly apply its Bylaw in making its decision to deny the Appellants' application for a subdivision of the subject property, the Commission finds that the appeal must be denied.
The Commission notes that the public support, reflected in the Appellants' filed exhibits, could suggest support for a rezoning application. Such a course of action was an option outlined by the Respondent.
4. Disposition
An Order denying the appeal will therefore be issued.
Order
WHEREAS Brendan and Louise Reid have appealed an August 30, 2000 decision by the Resort Municipality to deny an application to subdivide five lots on provincial property number 231571 located at Hope River in the Resort Municipality;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 23, 2000 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 7th day of December, 2000.
BY THE COMMISSION:
Maurice Rodgerson, Commissioner
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
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:
(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.