Docket: LA00120
Order LA01-02

IN THE MATTER of an appeal by Les Zielinski against a decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated October 31, 2000.

BEFORE THE COMMISSION

on Monday, the 23rd day of April, 2001.

Wayne D. Cheverie, Q.C. Chair
Arthur Hudson, Commissioner
Anne Petley, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Les Zielinski

2.    For the Respondent 

Arnold Smith
Donald McKearney

3.    For the Developer

Stephen Oinkle

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  Les Zielinski (the Appellant). By Notice of Appeal (Exhibit A1) dated November 17, 2000, the Appellant is appealing the decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Respondent), dated October 31, 2000, to grant building permit number 00-C-56 to Stephen Oickle, the president of Green Village Accommodations Ltd. (the Developer).  The said permit would allow the Developer to construct a building with a deck to be used as six one-bedroom motel units and a private laundromat (the development) on parcel # 694745 (the subject property) located in the community of Cavendish.

The Appellant owns parcel # 544791 which is adjacent to the subject property. 

At the request of the Appellant, and with the agreement of all parties, a pre-hearing conference was held on January 16, 2001 with the Appellant and Respondent present, and the Developer participating by telephone.  Following the pre-hearing conference, a hearing was then scheduled for February 21, 2001.  On February 12, 2001, counsel representing the Developer requested that the hearing be adjourned to provide an opportunity for review and legal advice.  The hearing date was adjourned with the consent of all parties.  On March 19, 2001, the Developer requested that a new hearing date be established. 

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on April 9, 2001.

On April 17, 2001, the Commission received a faxed note from the Respondent clarifying the Respondent's position regarding the issue of side yard measurement. 

2.  Discussion

The Appellant acknowledges that the Commission does not have the jurisdiction to determine a legal right of way.  However, he contends that he has a right of way to his property over the subject property and the Respondent should not have issued a building permit for the development until the issue of the width and location of the right of way has been resolved.  The Appellant further submits the following points in argument:

  • The April 19, 1995 survey plan (Exhibit R8) refers to a 40-foot right of way, leading to the National Park boundary, directly to the north of the right of way over the subject property.  There is also a 66-foot right of way intersecting with Cavendish Road directly to the south of the right of way over the subject property.  Therefore, the right of way over the subject property ought to be at least 40 feet in width.  However, condition 7 of the building permit requires the Developer to keep a right of way with a 24-foot width free of parking or buildings or outside storage.  Thus, the building permit would allow the development on a portion of the unopened right of way to the Appellant's property. 

  • The future development of the Appellant's land could be detrimentally affected by the development.

  • Approval of the development, while the right of way issue remains unresolved, is contrary to good planning principles.

  • The decision by the Respondent in 1995 to subdivide the Developer's lot was contrary to section 17.3 ix) of the Zoning & Subdivision Control (Development) Bylaw of the Respondent (the Bylaw) and therefore that decision should be considered a nullity.

The Appellant requests that the Commission quash the building permit for the development, as the Respondent erred in issuing the building permit while the right of way issue remains unresolved.

The Respondent expresses the position that the provisions of the Bylaw were carefully followed prior to the issuance of building permit 00-C-56.  The Respondent further submits the following points in argument:

  • The Respondent is aware of a deeded right of way over the subject property.  However, the location or width of this right of way was never legally defined.  While it is not the role of the Respondent to make a final determination in regard to the existence, location or width of a right of way, a new development must respect an existing right of way.

  • The Developer initially proposed to set aside a 15-foot wide strip of land for a possible right of way along the eastern boundary of the subject property.  Acting upon the advice of its planner, the Respondent required the Developer to set aside sufficient land to allow for a 24-foot wide right of way, as this width is the current minimum provincial standard for a private right of way. 

  • Since the subject parcel was already subdivided, the Respondent could not specify the width of the right of way other than the 24-foot minimum provincial standard.

  • Section 7.4 of the Bylaw requires a minimum 15-foot wide side yard for a development in a RD2 zone.  In the site plan attached to the building permit application (Exhibit R2), the Developer set aside a 40-foot wide strip of land along the eastern boundary of the subject property to allow for both a right of way and a side yard.

During the hearing, a question arose as to whether the minimum 15-foot wide side yard starts at the edge of a right of way or at the lot line.  The Respondent requested the opportunity to clarify this matter in writing following the hearing.  In a faxed note received by the Commission on April 17, 2001, the Respondent's planner explained that:

…the definition of “yard”, (including side, front and rear yards) indicates the measurement is made from the nearest lot line.  The existence of a right of way should not change that.

The Respondent requests that the Commission deny the appeal, as the development of the subject property meets all the requirements of the Bylaw.

The Developer takes the position that his proposed development of the subject property meets all the requirements of the Bylaw, and that the Respondent correctly applied the Bylaw when it issued building permit 00-C-56.  The Developer further submits the following points in argument:

  • When he purchased the subject property in 1995, he was informed by his legal counsel of a possible right of way over his land of an unknown width.  There is still no documentation to suggest the width of this possible right of way.

  • His original proposal for the present development included a 15-foot wide strip of land on the eastern boundary of the subject property to allow space for a possible right of way.

  • The Respondent subsequently advised him that the current minimum provincial standard for the width of a private right of way is 24 feet.  He then revised his building permit application to allow for a 40 foot wide strip of land along the eastern boundary of the subject property in order to provide for the Bylaw's side yard requirement and for a possible right of way meeting the current minimum provincial standard.

The Developer requests that the Commission deny the appeal, as the proposed development meets all of the Bylaw's requirements, and the Respondent correctly and prudently followed the minimum provincial standards for the width of a private right of way in order to ensure that land would be available for a possible right of way over the subject property.

3.  Findings

After giving careful and full consideration to the evidence and arguments submitted in this case, the Commission has decided to deny the appeal.  The reasons for the Commission's decision are as follows:

The Commission, as an appellate body, has the same decision making power as the tribunal at first instance, in this case the Respondent.  The Commission does not have absolute powers and is bound by the law, which in this case includes the Act and the Respondent's Bylaw.

On appeal, the Commission has the power to hear the evidence and arguments as presented by the parties and decide whether to allow the appeal or dismiss it based on that evidence and arguments presented as viewed in light of the applicable law.

Subsection 28(1) of the Act sets out the nature of an appeal to the Commission under the Act:

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.

In this case, the Commission is bound by the Bylaw, which sets out the necessary requirements for the issuance of a building permit. 

While the Commission does possess the jurisdiction to hear and determine the appeal under the Act and the Bylaw, the Commission does not have the jurisdiction to determine the existence, location or width of a right of way, or disputes between parties concerning a right of way.  Rather, the Commission's role is to determine whether or not the Respondent correctly administered its own Bylaw when it decided to issue building permit 00-C-56 to the Developer.

In the course of his argument, the Appellant referred to section 17.3 ix) of the Bylaw:

17.3  PERMISSION TO SUBDIVIDE

No person shall subdivide land within the Municipality unless the subdivision: 

                        …

ix)  is suitable to the use for which it is intended, and the future use of adjacent lands;             

The Appellant then submitted that the Respondent's decision in 1995 to subdivide the parent parcel of the subject property was contrary to the above-cited section and therefore the decision to subdivide the property should be considered a nullity.

The Appellant was unable to identify any relevant sections of the Bylaw that were either ignored or incorrectly applied when the Respondent made its decision to issue building permit 00-C-56.

With respect, the Commission finds that the Respondent's prior decision to subdivide the property is not the subject of this appeal.  While the subdivision of a property may possibly, in some cases, have a detrimental impact on the use of adjacent land, the time to appeal the 1995 subdivision decision has long since expired.  Further, the Commission takes notice that the present Bylaw, and the Respondent's Official Plan authorizing the Bylaw, did not come into effect until 1999. 

Upon a careful review of the evidence, the Commission finds that there is no evidence to support a finding that the Respondent erred in the administration of its Bylaw when it issued building permit 00-C-56 to the Developer.  Rather, the Respondent, aware of a deeded private right of way of an apparently unspecified width, proceeded cautiously and consulted with its planner.  The Respondent then followed the recommendation of its planner and required the Developer to set aside sufficient land to allow for a private right of way meeting the current minimum provincial standard.  In proceeding in this manner, the Commission finds that the Respondent followed good planning principles.  As a result, the eastern side of the proposed development will be located 40 feet from the eastern boundary of the subject property, as revealed by the site plan which forms a part of the building permit application approved by the Respondent (Exhibit R2).

In reaching its decision in this case, the Commission reiterates that it is not determining a right of way as between the Appellant and the Developer.  This is not the forum for such a determination.

For these reasons, the appeal must be denied.

4.  Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS the Appellant Les Zielinski has appealed a decision made by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated October 31, 2000, to issue building permit number 00-C-56;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on April 9, 2001 after due public notice and suitable scheduling for the involved parties;

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 23rd day of April, 2001.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C. Chair

Arthur Hudson, Commissioner

Anne Petley, 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.