Order LA01-01 - Ronald & Doreen Hiscock v. Resort Municipality, March, 2001

Docket: LA00122
Order LA01-01

IN THE MATTER of an appeal by Ronald Hiscock and Doreen Hiscock against a decision by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated November 28, 2000.

BEFORE THE COMMISSION

on Thursday, the 8th day of March, 2001.

Maurice Rodgerson, Commissioner
Norman Gallant, Commissioner
Arthur Hudson, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellants

Ronald Hiscock
Doreen Hiscock

2.    For the Respondent

Brenda MacDonald
Donald McKearney

3.    For the Developer:

Phillip Gallant

Reasons for Order

1.  Introduction

This is an appeal under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 (the Act), by Ronald Hiscock and Doreen Hiscock (the Appellants) against a decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Respondent) dated November 28, 2000 to issue a building permit to Phillip Gallant (the Developer) to construct a one story accessory building and private detached garage (the accessory buildings) on Provincial Property number 719500 located at Stanley Bridge (the subject property).

By Notice of Appeal dated December 14, 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 February 7, 2001.

On February 12, 2001, the Commission received a post-hearing submission, dated February 9, 2001, from the Appellants. The Commission did not direct any of the parties to file a written submission after the hearing. The Commission forwarded a copy of the post-hearing submission to the Respondent and to the Developer. The Commission offered the Respondent and the Developer the opportunity to file a written response to the post-hearing submission not later than February 23, 2001. No written responses were received from the parties.

Notwithstanding the fact that the Commission did not direct the Appellant to file a written submission after the hearing, the Commission has carefully reviewed and considered this submission, as well as the evidence presented at the hearing of this appeal.

2. Discussion

The Appellants

The Appellants contest the Respondent's issuance of Building Permit number 00-SB-59 to the Developer. The Appellants' position is contained in their Notice of Appeal (Exhibit A1), written submission (Exhibit A2) and was further expanded upon at the hearing. The Appellants submit the following points:

The Respondent has the responsibility to protect the interests of neighbouring landowners. The Appellants had filed a plan with the Respondent in May 1992 for their future cottage / retirement home. The Appellants feel that the Respondent did not consider their future plans. They believe that the present location of the accessory buildings will restrict the view that they would otherwise enjoy from their future cottage / retirement home. They also contend that these buildings will reduce the value of their property.

The Respondent's Zoning & Subdivision Control (Development) Bylaw (the Bylaw) permits a maximum of two accessory buildings (including a private detached garage) on a residential (R1) lot. There are presently three accessory buildings on the subject property, consisting of the two accessory buildings that are the subject of this appeal and an existing accessory building.

The Developer's site plan is deficient in that it does not show the location of the existing accessory building, it makes no mention of changes to the existing grade or elevation (for example fill for the driveway and site preparation) and there was no north arrow or scale on the site plan.

The two accessory buildings were constructed with steel siding, which gives them an industrial appearance and is not in harmony with a cottage area. Appendix "D" of the Respondent's Bylaw requires buildings to be sided with natural materials.

The three accessory buildings together total 1216 square feet of area, which is a greater area than that of the main building on the subject property (1158 square feet). While no maximum percentage of lot coverage is stated in the Bylaw, the Appellants feel that this square footage exceeds an acceptable amount.

The Respondent's Bylaw specifies that a private detached garage be for the sheltering of motor vehicles and storage incidental to the main property. The Appellants feel that the garage will be used as a workshop. They are concerned that the accessory buildings might later be converted into rental accommodations.

The Appellants have no objections to the Respondent issuing a building permit based on the original site plan ("Original Drawing" contained in Exhibit R2) filed by the Developer, provided that the buildings utilize natural siding. The Appellants seek assurances that the accessory buildings are used for the approved intended use and not a workshop of any kind, and that these buildings are not enlarged or turned into rental cottages or rental units. However, the Appellants request that the Commission allow the appeal, and in so doing quash Building Permit number 00-SB-59 which is subject to the revised site plan ("Revised Drawing" contained in Exhibit R2).

The Respondent

The Respondent states that the Developer's application for a building permit to construct a one story accessory building and private detached garage on the subject property meets all the Bylaw's requirements. The Respondent submits the following points:

While the Appellants filed a preliminary drawing with their application for subdivision approval in 1992 (Exhibit A3), the Appellants have not applied for a building permit for their future cottage / retirement home. With respect to the Appellant's concerns about a diminished viewscape for their future dwelling, the accessory buildings do not exceed the maximum height restrictions set out in sections 4.28 and 4.29 of the Bylaw. Other than building height restrictions, there are no provisions in the Bylaw to protect viewscapes.

The Developer has applied to move the original accessory building off of the subject property. The Respondent will require the Developer to move this building in order to bring his property into compliance with section 4.28 of the Bylaw.

Under section 4.56 of the Bylaw, a detailed site plan per Appendix "B" Site Planning Standards may be required for a development other than a single-family dwelling, private summer cottage or seasonal residence.   The Bylaw does not make the Appendix "B" Site Planning Standards mandatory for an accessory building or a private detached garage.

Under section 4.57 of the Bylaw, the architectural design standards outlined in Appendix "D" apply to commercial or public buildings and are not required for residential properties, including accessory buildings and private detached garages. The Respondent further notes that a variety of siding materials are used on buildings in the area surrounding the subject property.

No specific maximum lot coverage is set out in section 4.52 of the Bylaw. However, the accessory buildings are within the maximum size requirements set out in sections 4.28 and 4.29 of the Bylaw.

With respect to the Appellants' concerns regarding a possible conversion of the Developer's accessory building and private detached garage into rental accommodations, the Respondent notes that the subject property is currently in a R1 (Residential) zone. In order to change these buildings into rental cottages, the subject property would have to be rezoned. Rezoning would require notification of property owners in the subdivision, a public hearing and the approval of a majority of the property owners.

The Respondent requests that the Commission deny the appeal, as the Respondent correctly applied its Bylaw when it issued a building permit to the Developer.

The Developer

The Developer states that the original accessory building will be removed in the spring when weather conditions permit. The accessory buildings will not be used for commercial purposes. The Developer requests that the Commission deny the appeal as the building permit was properly issued.

3.  Findings

Following a full and careful consideration of the evidence and submissions presented 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 the present appeal, the Commission must follow the Bylaw that governs the requirements for zoning and subdivision control in the Respondent municipality.

The following sections of the Bylaw are particularly relevant to this matter:

4.28 ACCESSORY STRUCTURES
Accessory uses, buildings and structures shall be permitted on any lot but shall not:

(1) be used for human habitation;
(2) be located within the front yard or flanking side yard of a lot;"
(3) be built closer than five (5.0') feet (1.5 m) from any lot line;
(4) except in a resort zone, commercial zone or on a farm property exceed twelve (12') ft. (3.6 m) in height above grade;
(5) except in a resort zone, commercial zone or on a farm property exceed three hundred (300) sq. ft. (27 sq. m.) in total floor area:
(6) be considered an accessory building if attached to the main building;
(7) be considered an accessory building if located completely underground;
(8) except in a resort zone, commercial zone or on a farm property be limited to two (2) per property (including a detached garage).

Satellite dishes greater than 2 feet in diameter shall not be erected in any zone in the Municipality unless a special permit has been issued by Council.

Notwithstanding the above provisions, Council may issue a special development permit for an accessory structure located within the front yard or flanking side yard of a lot, where Council is satisfied the structure will be architecturally compatible with adjacent structures and no permanent injury would be caused to adjoining properties, subject to such conditions as Council may impose.

4.29   SPECIAL REQUIREMENTS FOR PRIVATE DETACHED GARAGES

(ix) A private detached garage shall not exceed seven hundred (700) sq. ft. (63 sq. m.) of floor space.
(x) A private detached garage shall not exceed a height in excess of twelve (12') feet (3.6 m) above grade, unless a special permit has been issued by Council allowing a greater height in order to achieve architectural harmony with the main building.
(xi) A private detached garage shall be included in the calculation of maximum lot coverage as described in the Lot Requirements for the applicable zone.
(xii) only one (1) private detached garage shall be permitted per property.
(xiii) Private detached garages shall comply with the provisions of Section 4.28 (2) and 4.28 (3) above.

With the exception of subsection 4.28 (8), the Commission finds that the accessory buildings meet every requirement of the Bylaw. There is no evidence before the Commission to suggest that the maximum height and area standards stipulated in sections 4.28 and 4.29 of the Bylaw were exceeded. The Commission notes that the Respondent, upon becoming aware of the continued presence of the original accessory building on the subject property, has informed the Developer that he must remove the original accessory building to be in compliance with the Bylaw.

The Commission acknowledges the Appellant's submission that the Developer's site plan does not meet the requirements of Appendix "B" (Site Planning Standards) of the Respondent's Bylaw. However, the Commission notes the wording of sections 4.5 and 4.56 of the Bylaw:

4.5    SITE PLAN

Council may require an applicant to submit a site plan in conformance with the provisions of Appendix "B" drawn to a convenient scale certifying the agreement of the applicant to develop the site in accordance with the plan. (emphasis added)

...

4.56   SITE PLANNING STANDARDS

For any development other than a single family dwelling or private summer cottage or seasonal residence, Council may require the submission of a detailed site plan prepared in conformance with Appendix "B", "Site Planning Standards". (emphasis added)

The Commission finds that, as the wording of sections 4.5 and 4.56 is permissive rather than mandatory, conformance with the requirements of Appendix "B" is not mandatory in this matter.

The Appellants also submit that the accessory buildings do not meet the requirements of Appendix "D" (Architectural Design Standards) of the Respondent's Bylaw. However, section 4.57 reads as follows:

4.57   ARCHITECTURAL DESIGN STANDARDS

Any commercial or public building or structure including multi-unit tourist accommodations constructed in the Municipality or moved into the Municipality shall be designed and constructed in conformance with the architectural design standards as outlined in Appendix "D". Council may require that a building or structure which is undergoing significant renovations shall also comply with the above standards as may be practical. (emphasis added)

The Commission finds that the architectural design standards contained in Appendix "D" are not mandatory for an accessory building or private detached garage associated with a residential property.

The Commission finds that neither viewscapes nor property value are specifically protected in the Bylaw. To illustrate that this point is not unusual, the Commission notes, as an example, that "detrimental impact" is defined in section 1(f.3) of the Planning Act Subdivision and Development Regulations as follows:

1(f.3);detrimental impact" means any loss or harm suffered in person or property in matters related to public health, public safety, protection of the natural environment and surrounding uses, but does not include potential effects of new subdivisions, buildings or developments with regard to

(i)   real property value;
(ii) competition with existing businesses;
(iii) viewscapes; or
(iv) development approved pursuant to subsection 9(1) of the Environmental Protection Act; (emphasis added)

The Appellants have raised concerns that the accessory buildings may, in the future, be converted into rental accommodations. However, as noted by the Respondent, this would require a change in the zoning of the subject property.

The Commission finds that the Respondent correctly applied its Bylaw when it issued Building Permit number 00-SB-59 to the Developer. While the Developer has not to date complied with section 4.28(8) of the Bylaw, this is not an error of the Respondent. The Commission takes notice that the Respondent indicated at the hearing that it expects the Developer to remove the original accessory building in order to achieve compliance with the Bylaw, and the Developer stated that he would comply with this request.

Since the Respondent correctly applied its Bylaw in making its decision to approve the Developer's application for a building permit, the Commission finds that the appeal must be denied.

4. Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS Ronald Hiscock and Doreen Hiscock have appealed a November 28, 2000 decision by the Resort Municipality to issue a building permit to Phillip Gallant to construct a one story accessory building and private detached garage on Provincial Property number 719500 located at Stanley Bridge in the Resort Municipality;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on February 7, 2001 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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 8th day of March, 2001.

BY THE COMMISSION:

Maurice Rodgerson, Commissioner

Norman Gallant, Commissioner

Arthur Hudson, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:

12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

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:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(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.