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Docket LA19012
Order LA20-03
IN THE MATTER of
an appeal by The PEI Energy Corporation of the August 27th, 2019 decision of the Rural
Municipality of Eastern Kings for the approval of a Development Permit for
Jeff Klein.BEFORE THE COMMISSION ON
Tuesday, October 6, 2020.
J.
Scott MacKenzie, Q.C. Chair
M. Douglas Clow, Vice-Chair
Erin T.
Mitchell, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
Overview
Decision
Background
The Development Permit
The Issues
Analysis
Relatiaonship between the Energy Corporation and the Municipality
Conclusion
Order
Appearances & Witnesses
1. For the Appellant,
The PEI Energy
CorporationCounsel:
J. Gordon MacKay, Q.C.,
Carr, Stevenson & MacKay
Susan Johnston
Witnesses:
Spencer Long
Jacques Paynter
2. For the Respondent, Rural
Muncipality of Eastern Kings
Counsel:
Hillary Newman, Stewart
McKelvey
Witnesses:
Ronald Coffin
3. For the Developer, Jeffrey
Klein
Counsel:
Lynn Murray, Q.C. Key
Murray
Iain McCarvill, Article Clerk
Witnesses:
Jeffrey Klein
Reasons for Order
Overview
1. On August 27, 2019, the Rural
Municipality of Eastern Kings (the "Municipality") granted Jeffrey Klein
("Mr. Klein") a development permit ("Development Permit") for his
property located at 4446 East Point Road, PID#819854 (the "Property").
2. The Prince Edward Island
Energy Corporation (the "Energy Corporation") appealed the decision of the
Municipality to grant the Development Permit, alleging that the Municipality
failed to follow proper procedure in granting Mr. Klein's application. The
impact of having granted the Development Permit significantly impacts on the
planned construction of a windfarm development within the boundaries of the
Municipality (the "Project"), as the Property is contiguous with, or in the
area of, the proposed site of the Project.
3. This matter was heard over
the course of two days on February 18 and 19, 2020. Post-hearing submissions
were filed by the parties from February to April, 2020. Written submissions
were completed and filed with the Commission on April 6, 2020.
Decision
4. The
Commission allows the appeal and hereby quashes the Development Permit
issued by the Municipality to Mr. Klein, dated August 27, 2019.
Background
5. The Energy Corporation made a
presentation on May 14, 2019, to the Municipality's Council and on
June 10, 2019, submitted to the Municipality a preliminary special
development permit application with respect to the Project. Mr.
Klein's property borders on some of the lands which the Energy
Corporation intends to use for the Project.2
6. On August 27, 2019, Mr. Klein filed
a development permit application (the "Application") with the Municipality.
He proposed to build a 50-foot by 20-foot structure comprising 1,000 sq.
ft., located at the rear of the Property (the "Development"). On that day,
Mr. Klein met with the Municipality's (then) Chief Administrative Officer
and Development Officer, Ronald Coffin ("Mr. Coffin"). The meeting lasted
approximately 45 minutes to one hour.
7. The Application was approved that
same day by Mr. Coffin and he issued the Development Permit that allows for
a "New building - 1000 sq. ft." to be constructed on the Property.3 The Development Permit states, in part:
Permission is hereby granted to Jeff
Klein applicant thereof, to start work on the following buildings:
New Building
- 1000 sq. ft.
Parcel no (819854-000) 4446 East
Point Rd, East Point, according to the plans and information submitted, and
by me tentatively approved, subject to compliance with the provisions of all
Regulations/Bylaws governing and affecting the development. And further
subject to receipt of Sewage report.
8. On August 30, 2019, Mr. Coffin
posted public notice of the Development Permit approval on the Prince Edward
Island Planning Decisions website. However, the "details" section described
the approval as being for a "Residential 1000 sq. ft. Dwelling", not a "New
Building-1,000 sq. ft." as provided in the Development Permit.
9. On or around September 16, 2019, Mr.
Coffin4 altered the "details"
section description of the Development Permit approval on the PEI Planning
Decisions website to read "1000 sq. ft. sleeping cabin no well no sewer /
not a defined dwelling".5
10. Spencer Long ("Mr. Long") is an
engineer with the Energy Corporation.
Mr. Long was called to describe the Project and to review the
proposed placement of wind turbines and the set-backs of a turbine from
dwellings in the area.6
11. Mr. Long described the timeline of
events with respect to the Development Application, as set out in the
written document that was submitted into evidence.7
He stated the first knowledge that the Energy Corporation had of the
Development Permit was on September 6, 2019, when he learned of it while at
the offices of the Municipality.
12. On September 10, 2019, Mr. Long made
a second visit to the Municipality looking for more information on the
Development. He noted a lack of
clarity on what was being proposed.
He then emailed Mr. Coffin regarding the Development Permit issued to
Mr. Klein and requested a complete copy of the Application:
Sorry to bug you again Ron. I just
let the team know about the site plan below and it has some pretty serious
impacts on our ability to build in that eastern part of the dev (sic) area.
We will need to discuss further and figure out what our options are
- can
you send me the complete application so I've got all the information.8
13. Mr. Long states that on September
11, 2019, he first saw the PEI Planning Decision's website which read that
the Development was for a "residential 1,000 sq. ft. dwelling".
14. On September 13, 2019, Heather
Macleod, Director, Energy Policy and Assets for the Energy Corporation
emailed Mr. Coffin. She thanked him for "taking the time to meet today" and
provided notes that she compiled from the meeting. The notes, included in
the email, state in part:
Development Permit for PID#819854:
-PEIEC requested copy of application
(received)
-Discussion regarding "dwelling";
PEIEC and EK CAO agree that this application is not for a dwelling, thus
municipal setbacks of 1000m from wind turbine to a residence do not apply to
this proposed structure.
-EK CAO to update PEI Permits
website to clarify that this is not a residence, nor a dwelling.
-PEIEC notes that some wetland was
found in neighboring properties to this PID during field studies' may wish
to contact Dept of Environment to seek confirmation that none in the area
for proposed driveway or structure.9
15. On September 16, 2019, Mr. Coffin
emailed Mr. Klein. He advised Mr. Klein that there were a "couple of things"
within the Application which were not necessarily consistent with the
description of the "sleeping cabin" and that a site survey plan may be
needed.10
16. On September 17, 2019, Mr. Coffin
again emailed Mr. Klein and requested that he file an amended Application.
Mr. Coffin identified a number of issues "for clarification" on the
application, stating in part:11
you (sic) are actually required to
provide the approved application for your access as in #3 Highway Access, so
your permit would be conditional on that issue.
Your application under #4 you
actually inserted a wod (sic) that is not part of the application "
�Dwelling', that's not a part of our application and unfortunately is
actually a defined word, so it voids the application
the building that you are proposing
as identified in #4 you have marked as residential single family. That's
actually not possible our bylaws 5(20) only allow one main building on any
residential lot. I think we need to amend the application to
As a Sleeping Cabin/Bunkie in #5 we
should have is marked as a Structure, 50x20=1000
If it's possible on your site
drawing to indicate general slope of land as in #9 (3)
17. On September 19, 2019, the Energy
Corporation filed this appeal with the Commission.
The
Development Permit
18. To decide this matter, it is necessary to understand the full context
and circumstances in which Mr. Coffin approved Mr. Klein's Application
for the Development Permit.
19. Mr. Coffin testified that
he was the Chief Administrative Officer and Land Development Officer for the
Municipality. He was first hired
in September of 2018 and he continued in that combined position until August
30, 2019 when he ceased being the Chief Administrative Officer and continued
only in the capacity of Land Development Officer.
He left the employ of the Municipality on December 20, 2019.
As of January 6, 2020, he had commenced a new job as the Chief
Administrative Officer for the Rural Municipality of Victoria, Prince Edward
Island.
20. Mr. Coffin testified that
prior to his employment with the Municipality he had not received any
training or had any experience in land use planning or development.
Notwithstanding this, in his combined job role he was responsible for
assessing and issuing development permits for the Municipality.
After he commenced his employment with the Municipality he was not
provided with any training in land use planning or development.
21. Mr. Coffin stated that he
was aware of the Project, but he was not aware whether the construction was
going to be on lands that were contiguous with, or in the area of, the
Property. He stated that when he
looked at the Application, he believed that required him to only consider
the set-back and other requirements on the Property.
He did not consider other neighbouring properties.
It did not occur to him that he should look beyond the Property to
see what types of developments were on those properties or were planned.
He stated it just didn't cross his mind at the time.
22. Mr. Klein stated that he
was not in Prince Edward Island in the spring of 2019 when the Energy
Corporation made presentations to the public about the Project, but he was
informed by his neighbours that a wind farm was in the works.
In his view, it was "being moved at (sic) aggressively by the
Minister" and his neighbours advised him that "it's a done deal".
23. Mr. Klein stated that he
had received a letter from the Energy Corporation requesting that he grant
an option for the provision of an easement over his property for the
construction of wind turbines, or as he referred to them, windmills.12
On July 17, 2019 Mr. Klein provided a response to the Energy
Corporation13advising that he was
reserving all rights to his land for additional residential housing.
He stated that he had no further contact with the Energy Corporation.
24. Mr. Klein stated he
arrived on Prince Edward Island on or about August 9, 2019 and gathered
information from friends and neighbours about what was happening and "having
these gargantuan windmills driven down our throats".
25. Mr. Klein and Mr. Coffin
met on the morning of August 27, 2019, for forty-five minutes to an hour,
during which meeting Mr. Klein submitted his Application for the Development
Permit and paid the associated fee. The application form stated that Mr.
Klein was applying for a new, single family, one story, 1000 sq.ft.
dwelling, to be located near the back of his parcel. The term "dwelling" was
typed onto the form by Mr. Klein, and did not appear on the Municipality's
application template. The Application stated that the estimated cost of the
project was $100,000, and that the intention was for the Development to be
serviced by a compost toilet and a water tank. The Application for the
Development Permit was accompanied only by a sketch of the placement of the
structure on the property and photographs of the type of structure Mr. Klein
was proposing.
26. Mr. Klein stated that the
estimated $100,000 construction cost figure based on $100/square foot was in
his mind just "a ball park seat of the pants number".
He stated that in his mind he was building a dwelling - a single
family residence. He stated that
it was his intent to install kitchen and bathroom facilities, but he did not
think that these facilities would require a permanent electricity hook-up.
He was going to talk to further experts to see what he needed to do,
but felt that a generator, rather than permanent power lines being run to
the structure, would suffice and he would rely on what the experts advised.
He stated that if power lines would have to be built, then the
project would cost more money than the estimated cost on the Application.
27. Mr. Klein spoke to a local
contractor to find out what the cost would be to construct a road from the
highway to the proposed structure " the distance of nearly a mile.
He was told that this would cost approximately $10,000, but no firm
price was obtained. He
acknowledged that this cost was not included in the estimate on the
Application. Mr. Klein stated
that he did not have a firm estimate for this road construction.
28. Mr. Coffin advised that
the process that he followed for this Application by Mr. Klein for
development was similar to applications he had dealt with in the past.
He testified that he had processed approximately 30 development
applications while he was working for the Municipality and that most of
these applications did not require approval by the Municipality's council
("Council"). He stated that he
had been granted power to issue development permits without obtaining any
further approval from Council.
He stated that he normally reviewed the Municipality's Subdivision &
Development Control Bylaw (the "Bylaw(s)") and if the development was within
the Bylaw requirements, then he would issue the development permit. However,
he did state that in the case of Mr. Klein's Application, he did not review
the Bylaws prior to issuing the Development Permit.
29. At the conclusion of their
meeting on August 27, 2019, Mr. Klein departed, Development Permit in hand.
30. Mr. Klein stated that over
approximately a twenty-year period he dealt with four different development
officers at the Municipality, the last being Mr. Coffin.
He made applications for building permits for a house on the water
side parcel of his Property and in 2007-2008 to subdivide those lands and
build another home, which he refers to as the guest house.
Mr. Klein provided photographs of these homes.
They are architect-designed well appointed homes costing hundreds of
dollars per square foot to construct. Mr. Klein stated that the application
process that was followed by the Municipality for this Development was the
same process as used in the past and he recalls getting both the permits for
his main house and the guest house on the same day that he made application
for the building permits.
31. Mr. Klein and Mr. Coffin
diverge in their understanding of what was applied for and what was
ultimately approved. When questioned in detail as to what Mr. Klein applied
for, Mr. Coffin stated that he was advised by Mr. Klein that he was applying
for this development permit so that he could build a sleeping cabin in the
woods for his children to use when they came to PEI.
The cabin was to be built at the very back of his property.
Mr. Coffin stated Mr. Klein talked about what the cabin would look
like and showed him pictures of a type of sleeping cabin that he had found
in another area of Prince Edward Island.
The cabin was not to have a foundation, but was to be built on
pillars or posts and that it was essentially to be a framed up structure
covered with wood siding or plywood.
This was in keeping with the pictures of the example property that
Mr. Klein had attached to his Application.
32. Mr. Coffin testified that
he did not notice that the word "dwelling" had been typed on the application
form by Mr. Klein at the time that the Development Permit was issued.
Mr. Coffin stated this was significant because a "dwelling" is
specifically defined in their Bylaws. He stated that when he was discussing
what was intended to be developed on the property that Mr. Klein did not
talk about it being a dwelling.
He stated that Mr. Klein described it as a cabin at the back of the woods
for his family.
33. In contrast, Mr. Klein
testified that he typed the word "dwelling" on the Application.
He told Mr. Coffin that he wanted to build a "house in the woods" for
family and friends. He came up
with an example of a structure that had been built at Rock Barra, PEI, and
he provided photographs of that structure along with his Application.
He stated that he advised Mr. Coffin that he was using a construction
cost amount of approximately $100 per square foot.
He thought that the property could also perhaps be used as an Airbnb,
but knew that this would need to ensure that the property was brought up to
the right standards. Mr. Klein acknowledged that at some point Mr. Coffin
mentioned that it appeared that Mr. Klein was building a "bunkie", but he
did not know what that was. He remained adamant in his direct evidence and
on cross-examination that his intention was to build a dwelling " and he
believed the Development Permit allowed him to do so.
34. The Development Permit,
however, did not state that he was receiving a permit for a dwelling
- single family residence. The
Development Permit merely stated "New Building
- 1,000 square feet".
Mr. Klein apparently did not question why he was receiving a
development permit for a "New Building - 1,000 square feet" when he
maintains he was applying for a "dwelling" " single family residence.
35. Mr. Klein stated that he
next heard about this matter two and a half weeks later when Mr. Coffin
contacted him, advising that he was reviewing his permits and he wanted Mr.
Klein to come in to discuss his Development Permit.
36. As described above, a
number of emails were sent back and forth. On September 16, 2019, Mr. Coffin
sent an email to Mr. Klein suggesting that his application be strengthened
by outlining items that needed to be attended to and also noting that, in
Mr. Coffin's view, he could not have a second single family dwelling on the
same parcel of land that Mr. Klein's main home was built.
He stated that he sent this email after it was pointed out to him by
the Energy Corporation that there were a number of concerns with the
Development that should be reviewed by Mr. Coffin.
37. Mr. Coffin stated that it
was after this contact that Mr. Coffin realized the Application and the
Development Permit were not reflective of what was going to be built on the
property. He maintained that in
his review, he missed the fact that "dwelling" had been typed in on the
Application by Mr. Klein. Mr.
Coffin maintained that he viewed this as only being a structure that would
be used as a sleeping cabin and that that was all that Mr. Klein had spoken
about in their meeting. He also
noted that the photos of the cabin that were used to provide an example of
what was to be built were that of a cabin only, and not a dwelling.
38. On September 17, 2019, Mr.
Coffin sent another email to Mr. Klein.14 He wanted Mr. Klein to amend the Application to make it certain that
the Application was made for a sleeping cabin and that the Development
Permit would be issued for that purpose, not for a single family residence,
as there was already one on the Property.
Mr. Coffin noted that a "dwelling", as defined in the Bylaws, is a
house that requires a kitchen and a bathroom; it is not just a sleeping
cabin.
39. There was also a question
raised regarding highway access, and whether approval from the province of
Prince Edward Island was necessary. Mr. Coffin said that it was not clear
when he spoke to Mr. Klein whether or not highway access permission would
have to be obtained. There was
some discussion that Mr. Klein may use an access on his own property or seek
permission to use a neighbour's property to access the Property. It has
subsequently been determined that highway access permission is not required
from the province of Prince Edward Island.15
40. Mr. Klein stated that he
did not understand what was going on and he was concerned he was being asked
to amend his Application. On
September 19, 2019, when the appeal was filed by the Energy Corporation, Mr.
Klein stopped any further contact with Mr. Coffin or the Municipality.
41. Mr. Klein stated that he
was moving on this Application to build a residential dwelling on his land
as he felt that the wind farm that was being proposed might preclude his use
of a portion of his lands. He
was concerned that the Energy Corporation was looking for carte blanche
access to his property and that he would lose control over a 50-acre portion
of his lands.
42. Mr. Klein stated that he
did not know how his Development would impact the wind farm Project.
He thought it might impact one or two windmills, which he said would
be good for him. He stated he
did not have any clue that building on that portion of his land would affect
four of the windmills that were proposed.
He now knows that it could.
The
Issues
43. The Energy Corporation
argues that the Municipality failed to follow the procedure set out in its
Official Plan and the Bylaw,16 and
failed to employ sound planning principles in evaluating the Application.
Alleged Procedural Deficiencies
44. The Commission has
distilled the Energy Corporation's submissions and identified what it
understands to be five procedural errors that the Energy Corporation
believes are fatal to the Application and Development Permit.
45.
First, the Energy Corporation
argues that the Municipality approved an application that was non-compliant
with its standard application form, contrary to section 2.5 of the Bylaw.17
In support of this submission, the Energy Corporation argues that Mr.
Klein inserted the word "dwelling" on his application form, thereby voiding
the Application.18
46.
Second, the Energy Corporation
argues that the Development was approved without proof that an entrance way
permit under the Roads Act Highway Access Regulations was applied for or
obtained, which the Energy Corporation states is contrary to section 5.9 of
the Bylaw.19
47. Third, the Energy
Corporation argues that Mr. Klein failed to indicate the existing and
proposed grade elevations or surface water runoff patterns vis-�-vis
adjoining lots, contrary to section 5.12 of the Bylaw. The Energy
Corporation also argues that Mr. Klein was required to and did not show a
plan for adequate landscaping.20
48. Fourth, the Energy
Corporation states that the Development would result in a second building on
the Property, which is a single residential lot, contrary to section 5.20 of
the Bylaw.21
49. Fifth, the Energy
Corporation argues that the Municipality failed to follow the law in
accepting the Application, even though "the intended purpose of the proposed
development was not clear on the application".22
The Municipality's position
50. In a departure from the
usual course before the Commission, the Municipality concedes a number of
procedural deficiencies with the Municipality's processing of the
Application.
51. In sum, the Municipality
adopts, by and large, the arguments of the Energy Corporation, going so far
as to admit that its Development Officer, Mr. Coffin, was inexperienced and
had no expertise in planning matters.
52. The Municipality "concedes
that proper process and procedure as required in the Bylaw was not followed"
in processing the Application and deciding to issue the permit. The
Municipality states that the Application was processed "without a clear idea
of what type of structure was applied for" and that it was not clear exactly
what Mr. Klein was authorized to build, noting that "building" is not a
defined term in the Municipality's own Bylaw.23
The Municipality also adopts the argument of the Energy Corporation
that the application did not meet the requirements of sections 2.7.2 of the
Bylaw in that the sketch included with the Application did not show required
grade elevations or the building height.24
No Merit Based on Sound Planning
Principles
53. The Energy Corporation
also submits that the Development does not have merit based on sound
planning principles.25
54. The Energy Corporation
argues that the Municipality was required to consider not only the
Application, but also the "broader implications of approving the permit" and
the potential negative impact on the Project. The thrust of this argument is
set out in the Energy Corporation's written submissions26
as follows:
The Energy Corporation
submits that before Mr. Klein's permit was approved, Council should have
considered the Energy Corporation's Special Development Permit Application
and the implications for the Energy Corporation's proposed project if Mr.
Klein's application for a Development Permit was approved. The Energy
Corporation submits that this was not done, and therefore, the decision of
Council to approve Mr. Klein's Permit was not a decision that had merit
based on sound planning principles.
55. The Energy Corporation also suggests that by not consulting a land
use planner, the Municipality failed to make their decision based on sound
planning principles.
56. In support of its position on sound planning principles, the Energy
Corporation retained Jacques Paynter, FEC, P.Eng. ("Paynter") of Wood
Environment & Infrastructure Solutions. Paynter prepared a written report
opining on whether the Development met sound planning principles. Paynter
was called at the hearing and cross-examined by opposing counsel. In his
opinion, the Development did not meet sound planning principles. Paynter
opined that it was "highly unusual" for a development application for a
single-family dwelling to be processed in a single business day;27
the Application and Development Permit did not comply with the Bylaw;28
and the permit should not have been issued without more detailed
information being solicited from Mr. Klein.29
57. The Energy Corporation also suggests that by not consulting a land
use planner, the Municipality failed to make its decision based on sound
planning principles.
Analysis
Alleged Procedural Deficiencies
i) Altering the Application Form
58.
The
Energy Corporation argues that the Municipality approved an application that
was non-compliant with its standard application form, contrary to section
2.5 of the Bylaw30 and that by inserting "dwelling" on his application form, he voided
it. It is notable that the Energy Corporation did not cite any authorities
to support this conclusion.
59. Mr. Klein argues that a minor divergence, in and of itself, does not
void a Development Permit application.31
60. The Commission agrees with Mr. Klein and finds that the mere
inclusion of the word "dwelling" on the Application cannot and does not void
the Application.
ii) Entrance way permit
61. The Energy Corporation argues that the Development was approved
without proof that an entrance way permit under the Roads Act Highway Access
Regulations was applied for or obtained, which the Energy Corporation states
is contrary to section 5.9 of the Bylaw.32
62.
Mr. Klein did not provide with his Application any such proof. The
Application provides that the Development requires a new or relocated access
driveway. The evidence of Mr.
Coffin was this was not certain and that there were more discussions at the
time that Mr. Klein may use an existing access and may, in fact, intend to
use an access on the neighbouring property.
63.
Mr. Klein submits that an entranceway permit is not a precondition to
getting an approval of a development permit. He submits that it is only
where an entranceway permit is required that an issuance of such a permit is
a precondition for the approval of a development permit.
Mr. Klein, rightly, points out that this is precisely the wording of
section 5.9 of the Bylaw. In
addition, Mr. Klein rightly points out that an entranceway permit was not
required, as noted in the email from Kevin Campbell, Manager of Traffic
Operations with the PEI Department of Transportation, Infrastructure and
Energy, wherein he states
Route 16, East Point Road is classed
as a C-1 local highway and as such, any entrance way entering this class of
highway does not need an Entrance Way Permit, just has to meet sight
distance requirements for the class of road.33
64. The Commission agrees with the submission of Mr. Klein that, as it
turns out, the access that he was proposing is not one that requires an
entranceway permit. However,
this was not known at the time of the filing of the Application and was not
determined until February 14, 2020, nearly six months after the Application
was submitted. The Commission
finds that, as the Application indicated that a new access driveway or
relocation of an existing access driveway was required, the Development
Permit should not have been issued until it was known whether or not an
entranceway permit was required.
This was a procedural error in the processing of the Application and the
issuance of the Development Permit.
iii) Grade Elevations, Landscaping
and Surface Water Run-off
65. The Energy Corporation maintains that Mr. Klein failed to include in
his Application the proposed grade elevations or surface run-off patterns
vis-à-vis adjoining properties, contrary to section 5.12 of the Bylaw.
66. Section 2.7.2 of the Bylaw sets out the requirements of the sketch or
site plan that must accompany every application for a development permit, as
follows:
2.7.2 Every application for a
development permit shall be accompanied by a sketch or site plan, drawn to
scale and showing:
a) the shape and dimensions of the
lot to be used;
b) the existing and proposed grade
elevations relative to the adjoining property or properties;
c) the distance from the lot
boundaries, dimension, and height of the building or structure proposed to
be erected;
d) the distance from the lot
boundaries and size of every building or structure already erected on the
lot and the general location of the buildings on abutting lots;
e) the proposed location and
dimension of any well, sewerage systems, parking space, loading space,
driveway, and landscaped area on the subject lot as well as within a minimum
of 30m on abutting lots;
f) the proposed use of the lot and
any building or structure; and
g) any other information the
Development Officer deems necessary to determine whether or not the proposed
development conforms to the requirements of this Bylaw.
67. "Site plan" is defined in the Bylaw34
to mean a plan drawn to a suitable engineering scale showing "details
of existing and proposed features on a parcel of land" that is subject to a
development application.
68. Mr. Klein submits the lack of a site plan is not fatal to the
Application and points out that the Bylaw merely states that "no building
shall be erected" without first providing the information required in sec.
5.12 of the Bylaw. Mr. Klein
submits that this information does not have to be provided prior to
obtaining the Development Permit and can be provided at a later time.
Mr. Klein also points out that the Development Permit states that it
is tentatively approved subject to compliance with all of the regulations
and bylaws governing the Development.
69. The Commission finds that failure to obtain this information at the
time of the Application is a procedural error in the processing of the
Application and the issuance of the Development Permit.
The Development Permit itself states that it is tentative.
The evidence of Mr. Coffin and Mr. Klein is contradictory as to
whether or not this "Development Permit" is tentative or final.
Mr. Klein maintains that in his view he received a final permit and
does not know what "tentatively approved" means.
Mr. Coffin also was uncertain as to the true status of the
Development Permit. In his mind
he felt that it was final but subject to compliance to all of the
regulations and Bylaws governing and effecting Development.
No requirement was put on Mr. Klein to return to the Municipality to
submit the information required under sections 2.72 and 5.12 of the Bylaw.
Mr. Klein's view is that he got what he came for and that is a
Development Permit to proceed.
70. The Commission agrees that the Municipality erred and did not follow
proper procedure by ensuring that the information required by sections 2.72
and 5.12 of the Bylaw was obtained prior to the issuance of the Development
Permit.
iv) Single Lot, Multiple Buildings
71.
The Energy Corporation argues that the Development would result in a
second building on the property contrary to section 5.20 of the Bylaw.
72. The Commission agrees with the submission of Mr. Klein.
It is clear that the Property was originally comprised of two lots
naturally subdivided by the East Point Road.
Mr. Klein further subdivided the parcel on the water side of the East
Point Road to build his guest house.
The Commission finds that the natural subdivision of the Property by
the East Point Road is sufficient and no further subdivision or approval
would be required to allow for the Application and issuance of the
Development Permit. The
Commission, however, does point out that Mr. Coffin did not know this at the
time of the issuance of the Development Permit.
This was a factor that Mr. Coffin should have considered and should
have been satisfied was not an issue at the time that he issued the
Development Permit. The
Commission finds that this failure to consider this and deal with the matter
prior to issuing the Development Permit was a procedural error, albeit one
that would not be fatal and, by itself, would not be sufficient to void the
Development Permit.
v) Intended Purpose
73.
The Energy Corporation asserts that the Application should not have
been approved as the intended purpose of the proposed development was not
clear on the Application.
74.
The Commission agrees, and is left asking itself: what actually did
Mr. Klein apply for, and what did the Municipality (via Mr. Coffin) actually
approve? The answer, unfortunately, is not clear. And this stems, in the
Commission's opinion, from the fact that Mr. Coffin - who the Commission
found to be forthright in his testimony - was unsuited to the role of
Development Officer. Quite simply, it is not so much each individual error
that taints the Development Permit, but the reality that the Municipality
and Mr. Klein have entirely different opinions as to what the Permit
actually authorizes Mr. Klein to build.
75.
At the hearing, Mr. Coffin testified that although the term
"dwelling" was typed on the application form, he did not notice it while
processing the Application. He testified that the Development was not a "dwelling", which he states needs a kitchen and bathroom under the Bylaw,
but rather a sleeping cabin. On cross-examination, he reiterated his belief
that Mr. Klein was applying for a "sleeping bunkie".
76.
Mr. Klein, for his part, was consistent in his evidence that he never
asked for a "bunkie". Rather, he testified that it was Mr. Coffin who
suggested the Development was a bunkie or sleeping cabin. According to Mr.
Klein, it was always intended to be a house. He inserted the term "dwelling"
on the application form so that there would be no confusion.
77. This Commission finds that Mr. Klein's plans for this Development
were and are amorphous at best. It is not surprising that there was
confusion in the mind of Mr. Coffin about what was going to be built.
Mr. Klein, himself, did not know at the time of applying for the
Development Permit what was going to be built.
He had a rough idea and some thoughts, but little investigation or
advice had been obtained. Even
at the time of the hearing some six months later, Mr. Klein could still not
articulate what he intends to build.
He stated that he is going to discuss with his contractor and other
experts, then he will decide what to build.
78. Mr. Coffin says he approved a specific development (a sleeping
cabin/bunkie), and Mr. Klein, the developer, is saying he has been approved
for another (a residential dwelling). The Development Permit itself approves
only a "new building". When all of this is taken together, it is not clear
to the Commission what, in fact, was intended to be built and what the
Municipality intended to approve.
79. The Commission finds that this Application was not complete, did not
satisfy the requirements of the Bylaws, and should not have been issued by
the Municipality until Mr. Klein provided a complete application containing
all of the requisite information required to allow an informed decision as
to whether a development permit should be issued or not.
Sound Planning Principles
80. The Municipality
"concedes that the decision to issue the [p]ermit
did not have merit based on sound planning principles".35
Relying on the Commission decision in Donna Stringer v. Minister of
Communities, Land and Environment,36 the Municipality states that Mr. Coffin did not consider neighboring
properties when he issued the permit, that there was no prescribed process
for issuing the permit, and that it was unclear "as to what type of
development [Klein] was proposing."37
Expert Witness Testimony
81.
As previously stated, the Energy Corporation called Mr. Paynter as an
expert witness on the subject of sound planning principles.
82. Mr. Klein takes issue with the Energy Corporation offering Mr.
Paynter as an expert witness. Mr. Klein urges the Commission not to accept
Mr. Paynter's report or testimony as expert evidence, or at all. Mr. Klein
argues that Mr. Paynter is not independent from the Energy Corporation,
having prepared an Environmental Impact Statement for the Project.38
Mr. Klein also notes that Mr. Paynter did not review the
Municipality's official plan before preparing his written report, and raised
a number of discrepancies between Mr. Paynter's written report and oral
testimony before the Commission.39
83. The Commission has reviewed the written report of Mr. Paynter and
considered his oral testimony. The Commission has given little weight to his
evidence. While Mr. Paynter may have some expertise in land use planning,
the Commission did not find his opinion on this appeal to be of much
assistance. Mr. Paynter - properly - made a number of admissions on
cross-examination by counsel for Mr. Klein, including that he had not
reviewed the Municipality's Official Plan prior to preparing his written
report. These admissions undermine his conclusions on sound planning
principles and the Development generally.
84. Mr. Klein did not call an expert to opine on whether the Development
met sound planning principles.
Did the Municipality employ sound
planning principles in approving the Application?
85.
The Commission is concerned with the clear lack of consideration of
sound planning principles during the course of the Municipality's review of
the Application and issuance of the Development Permit.
86. By his own admission, Mr. Coffin has no training or expertise in land
use planning. He did not consider development around the Property in
assessing the Application. He thought he was approving a "bunkie" and did
not even notice that the word "dwelling" - a defined term in the Bylaw
- was
inserted into the Application. Even without the Municipality's concession
that Mr. Coffin erred and the Development does not have merit based on sound
planning principles, the Commission simply cannot, in the face of Mr.
Coffin's testimony, accept Mr. Klein's contention that sound planning
principles are met in this instance.
87. Mr. Coffin acknowledged that on May 14, 2019, the Energy Corporation
did make a presentation with graphics disclosing to the Municipality what
was being planned for its Project.
He stated that at the time that he dealt with the Application, he did
not know where the Project wind turbines would be placed and he did not
cross-reference the two - the Project and the Development.
88.
When asked about whether he ever considered the neighbouring
properties when dealing with a development permit application, he stated
that he did not normally look outside of the lands being developed, unless
the development was near the dunes on the shore as he knew that required
ensuring that there were no violations of the environmental laws.
89. The Commission notes that the employment of sound planning principles
would most definitely have required Mr. Coffin to look beyond the property
upon which a development permit was sought and that they require that a
development or planning officer look outside the lands upon which the
development is intended.
90. Mr. Coffin noted that in his role dealing with the Project, he was to
bring the documents filed by the Energy Corporation to Council.
He was not providing any advice as a planner or a development officer
with respect to the Project. He
was simply the administrator gathering the documents and forwarding them to
Council to review. He stated
that something as large as the Project was something that had to go to
Council.
91. The Commission previously found in
Stringer40 at paragraphs 58 and 64 as follows:
58...This Commission has found, in
numerous past decisions, that there must be evidence that a proposed
development or change of use is consistent with sound planning principles
(Biovectra v. City of Charlottetown, Order
LA12-06).
In determining whether or not a development proposal should go
forward, the Minister must make an examination beyond the strict conformity
with the Regulations and must consider sound planning principles including,
but not limited to, the quality of architectural design, compatibility with
architectural character of adjacent development, site development principles
for the placement of structures and a thorough assessment of whether the
development is consistent with sound planning principles (Atlantis Health
Spa Ltd. V. City of Charlottetown, Order
LA12-02).
64 Sound planning principles are a
guard against arbitrary decision making especially where a regulatory
checklist does not address a concern.
Sound planning principles require regulatory compliance but go beyond
merely insuring such compliance and require discretion to be exercised in a
principled and informed manner.
Sound planning principles require the decision maker to take into
consideration the broader implications of their decisions.
In order to ensure that sound planning principles have been followed
in anomalous applications a professional land use planner must be consulted.
92. Throughout the Energy Corporation's submissions, both oral and
written, is the suggestion that Mr. Klein seeks to develop the Property, at
least in part, to frustrate or otherwise impede the Project. The submissions
and record make frequent reference to the Project.41
The Energy Corporation urges the Commission to find, as part of its
analysis on sound planning principles, that the Municipality erred by
failing to consider the impact the Development would have on the Project.
93. The Commission finds that Mr. Klein's view of the Project and any
impact that it may have on his motives or subjective intent to plan the
Development on his property is irrelevant and of no influence.42 The Commission is not concerned with the subjective intent of a
developer. The Commission is
only concerned with whether the Application was processed appropriately and
that sound planning principles were followed coming to the determination on
that Application and the resultant decision to issue a Development Permit.
94. Mr. Klein makes much of the fact that the process that was used by
the Municipality was a similar process that he encountered in two previous
building applications. That may
be the case. However, this
Commission cannot condone a process that is so fundamentally flawed that it
results in development permits being issued where little or no solid
information is provided in the application for the development permit.
This does not comply with the Bylaws, nor any semblance of sound
planning.
95.
This Commission has previously voiced its concern with respect to
development permits being granted in circumstances where sound planning
principles are not followed.
This situation is one that highlights the necessity of the employment of
sound planning principles in the assessment of an application.
A decision to issue a development permit where it is not known what
is going to be built, the estimate of the cost does not include all of the
costs to be incurred, namely, the cost of building a road, installation of
electrical, water and septic services cannot be supported.
In addition, no consideration was given to the effect of the
Development on surrounding lands and developments, such as the Project, that
are proposed on surrounding lands.
96. Land use planning in this province has come a long way in the last 20
years. The time of incomplete
applications receiving approval and building permits being issued with the
details being worked out later, or worse, just being implemented by a
developer making the decision on their own - has long passed.
97. This Commission and the courts of this province have stated that this
is no longer satisfactory.
Planning and development must be approached in a professional manner,
consistent with a process that provides for development permits to be issued
only after all pertinent facts and information have been filed with a
Municipal decision-maker. This
allows for an informed decision to be made to approve or reject a building
permit application and to ensure what is being proposed complies with the
Bylaws, the official plan and sound planning principles.
98.
This was not the case with the Application made by Mr. Klein.
The Development Permit was issued upon receipt of an incomplete
Application and a forty-five minute to an hour discussion.
Obviously the Application did not receive the appropriate review and
consideration and confirms that the approval process was, at best, cursory.
Mr. Coffin testified that in reading the Application and in his
meeting with Mr. Klein he was still not sure what Mr. Klein intended to
build. This is not surprising.
Mr. Klein's evidence is that as of the date of the hearing on
February 19, 2020, some six months later, he still could not articulate to
this Commission, with enough specificity that would be required to issue a
building permit, what he intended to build.
99. If a member of the public, after seeing the public notice on the PEI
Planning Decisions website that a New Building-1,000 sq. ft. was to be built
asked to review the Municipality's development application file to determine
what was being planned for development, then that individual would not be
able to discern from the file what was intended to be built by Mr. Klein.
This is precisely the situation in which the Energy Corporation found
itself. A file that has received
a building permit should be complete so that any person reviewing it can
understand from the file what was applied for and what was approved.
This was not the case.
Relationship between the Energy
Corporation and the Municipality
100. Mr. Klein urges the Commission to view the cases presented by the
Energy Corporation and the Municipality as "suspect", based on what Mr.
Klein characterizes as the "wholesale adoption by [the Municipality] of [the
Energy Corporation's] position on this appeal", inconsistencies in Mr.
Coffin's testimony, the "questionable independence" of Paynter, and the
alleged failure of the Energy Corporation and the Municipality to address
these issues in their written submissions.43
101.
There is no question that there has been a significant amount of
contact between representatives of the Municipality and the Energy
Corporation.
102.
Mr. Long noted that there were bi-weekly and weekly contacts with the
Municipality as the Project was large and complicated, and there was need
for a great deal of discussion and need for public consultation.
103.
Mr. Long described the process to obtain permission from the
Municipality, the Department of Transportation and Infrastructure, the
Department of the Environment and the need to solicit and get public
feedback.
104. The Commission is not persuaded by the submission that the Energy
Corporation was "pulling the strings of Mr. Coffin" or that the
Municipality's agreement with the position of the Energy Corporation is
suspect. The Commission finds
that the contact made by the Energy Corporation to Mr. Coffin, upon
realizing the Development Permit had been issued, was not out of the
ordinary. What is unusual is the
fact that Mr. Coffin apparently communicated to the Energy Corporation the
precise actions he was going to take to deal with the alleged errors and
concerns brought to his attention by the Energy Corporation.
A more experienced development officer would have conducted
themselves in a manner that would not have resulted in their objectivity
being called into question.
Conclusion
105.
The appeal is allowed and the Development Permit issued by the
Municipality to Mr. Klein, dated August 27, 2019, is hereby quashed.
106. The Commission acknowledges that Mr. Klein submitted what he
understood to be sufficient material to the Municipality to obtain his
Development Permit. The fault, in this case, rests not with Mr. Klein, nor
with Mr. Coffin, who acknowledged his lack of planning experience, but with
the Municipality, which did not ensure that it employed sufficiently
qualified staff to accept, evaluate, and administer development permits
pursuant to its Bylaws.
107. The expense and inconvenience caused in this case was entirely
avoidable. The Commission recognizes that the Municipality is a small, rural
municipality balancing two sophisticated parties (Klein and the Energy
Corporation) with competing interests. Municipalities nevertheless have an
onus to ensure they have access to the necessary expertise to deal with the
issues for which they are responsible. The Commission recommends that all
municipalities in Prince Edward Island ensure that they are properly staffed
and equipped to perform the functions of a municipality, as required by the
Municipal Government Act, R.S.P.E.I. 1988, cap M-12.1.
Footnotes:
1
Correspondence from L. Murray filed April 6, 2020.
2
Exhibit A-14.
3 Record,Tab 4.
4 Coffin oral testimony.
5 Exhibit
C-1.
6
Exhibit A-2 Tab 9.
7
Exhibit A-2 Tab 14.
8
Exhibit A-4.
9
Exhibit D-4.
10
Record, Tab 5.
11 Ibid.
12
Exhibit D-7.
13
Exhibit D-5.
14
Exhibit R-1, Tab 5.
15
Exhibit D-1. Emails-Kevin Campbell of Government of PEI to Iain McCarvill of
Key Murray, February 7th and 14th, 2020
16
Record, Tab 10.
17
Section 2.5.1 of the Bylaw states that "any person applying for a permit
shall do so on a form prescribed by Council, and shall submit the
application to the Community."
18
Energy Corporation's Written Submission filed February 6, 2020 at pars.
21-26.
19
Energy Corporation's Written Submission filed February 6, 2020 at pars.
27-29.
20
Energy Corporation's Written Submissions filed February 6, 2020 at pars.
30-32.
21
Energy Corporation's Written Submission filed February 6, 2020 at pars.
33-36.
22
Energy Corporation's Written Submission filed February 6, 2020 at par. 39;
see also pars. 36-38.
23
Municipality Post-Hearing Submissions filed February 28, 2020 at p.5.
24
Sections 2.7.2.b & and 2.7.2.c.
25
Energy Corporation's Written Submission filed February 6, 2020 at pars.
41-49.
26
Energy Corporation's Written Submission filed February 6, 2020 at par. 46.
27
Energy Corporation Final Written Submission filed February 26, 2020, at par.
52.
28
Energy Corporation Final Written Submission filed February 26, 2020, at par.
53.
29
Energy Corporation Final Written Submission filed February 26, 2020, at par.
54.
30
Section 2.5.1 of the Bylaw states that "any person applying for a permit
shall do so on a form prescribed by Council, and shall submit the
application to the Community."
31
Respondent Final Written Submissions filed March 5, 2020 at paras.25-34,
citing Cooksville Co. v. York (Township), [1953] OWN 849 (ONHC) at
pars.16-17; Triforce Construction Ltd. v. Toronto (City), 1974
CarswellOnt 344 at paras.16-17; and Interpretation Act, RSPEI 1988,
c I-8 at s.25(1).
32 Energy Corporation's Written Submission filed February 6, 2020 at pars.
27-29.
33
Exhibit D-1.
34
Bylaw, Schedule B.
35
Municipality Post-Hearing Submissions filed February 28, 2020, at p.5.
36
Order LA17-06 (August 10, 2017) [Stringer].
37
Municipality Post-Hearing Submissions filed February 28, 2020, at p.5.
38 Respondent
Final Written Submission filed March 5, 2020 at par.12(f).
39
Respondent Final Written Submission filed March 5, 2020 at par.12.
40
Stringer v. The Minister of Community, Lands and Environment Order LA17-06.
41
For example, the Energy Corporation states that the "Energy Corporation's
proposed Wind Farm Project could be negatively impacted by the decision to
approve Mr. Klein's Permit". - Energy Corporation Submissions filed February
6, 2020 at par.17.
42
Final written submission of Respondent Klein - Tab 1, pars., 20 & 21.
43 Respondent
Final Written Submission filed March 5, 2020 at par.14.
Order
WHEREAS
the
Appellant, the PEI Energy Corporation, appealed the decision of the
Rural Municipality of Eastern Kings to issue a Development Permit to
Jeff Klein, dated August 7, 2019;
AND WHEREAS
the Commission heard the appeal at a hearing conducted at
Charlottetown, on February 18th and 19th, 2020;
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 allowed.
2. Permit No.
17(EKDP17-2019) issued by the Rural Municipality of Eastern Kings to Jeff
Klein, dated August 27, 2019, is hereby quashed.
DATED
at Charlottetown, Prince Edward Island, this 6th day of October, 2020.
BY THE COMMISSION:
J. Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
Erin T. Mitchell, 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 Court of Appeal upon a question of law or
jurisdiction.
(2) The appeal shall be made by filing a notice of
appeal in the Court of Appeal within twenty days after the decision or
order appealed from and the rules of court respecting appeals apply with
the necessary changes.
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