Bat­tle of Bunker Hill

Board backs Carbonear coun­cil’s de­ci­sion to refuse per­mit to build house on ser­vice road

The Compass - - FRONT PAGE - BY BILL BOW­MAN

An­other chap­ter in the six­month saga of a Carbonear cou­ple’s ef­forts to ac­quire a per­mit to build a dwelling house in that Con­cep­tion Bay town ended ear­lier this month, when the East­ern New­found­land Re­gional Ap­peal Board up­held the town’s ear­lier de­ci­sion to deny their ap­pli­ca­tion.

The saga be­gan on April 23 of this year when Wal­ter and De­bra Brad­bury ap­plied to the town coun­cil for a build­ing per­mit to con­struct a sin­gle dwelling on a name­less ser­vice road in an un­ser­viced area in the north end of town. The dirt road runs im­me­di­ately south of and par­al­lel to Colum­bus Drive from English Hill west to Bunker Hill.

The board’s seven-page rul­ing noted the “town did not ap­prove the de­vel­op­ment be­cause the prop­erty lacks ad­e­quate road ac­cess and ser­vices.”

How­ever, coun­cil did in­di­cate its will­ing­ness to dis­cuss op­tions for al­low­ing the pro­po­nents to de­velop the nec­es­sary ser­vices and

in­fra­struc­ture at their own ex­pense un­der the Carbonear Mu­nic­i­pal Plan and De­vel­op­ment Reg­u­la­tions.

Now that they have lost their ap­peal, the Brad­bury’s fi­nal re­course would be to ap­peal the board’s de­ci­sion to the Supreme Court of New­found­land and Labrador Trial Divi­sion on a ques­tion of law or ju­ris­dic­tion. Ac­cord­ing to the board, the Brad­burys are en­ti­tled to ap­peal the de­ci­sion to the Supreme Court un­der sec­tion 46 of the Ur­ban and Ru­ral Plan­ning Act 2000.

Ap­pli­ca­tion de­nied

Af­ter lis­ten­ing to the Brad­burys make their case be­fore a June 8 reg­u­lar coun­cil meet­ing, coun­cil voted unan­i­mously to deny their ap­pli­ca­tion for a per­mit “to con­struct a sin­gle dwelling home off the ser­vice road lead­ing to Bunker Hill. The ap­pli­cant does not meet the re­quire­ments of the Carbonear Mu­nic­i­pal Plan and De­vel­op­ment Reg­u­la­tions as it does not have frontage on an ap­proved town street.

At the time Town Ad­min­is­tra­tor Cyn­thia Davis, who also at­tended the Oct. 8 ap­peal board hear­ing, cited the town’s de­vel­op­ment reg­u­la­tions. They stip­u­late nei­ther a per­mit nor ap­proval in prin­ci­ple can be is­sued for de­vel­op­ment within a plan­ning area which does not have ad­e­quate road ac­cess, power, drainage, san­i­tary fa­cil­i­ties or do­mes­tic wa­ter sup­ply... un­less the ap­pli­cant agrees to pay the full costs of in­stalling th­ese ser­vices.

The Brad­burys’ ap­pealed to the board, which comes un­der the Depart­ment of Mu­nic­i­pal Af­fairs, on June 26, on the grounds the town has been us­ing the ser­vice road for over 25 years, and they ar­gue if it must be up­graded coun­cil should be re­spon­si­ble for the up­grad­ing.

Stop work

On July 7 the town is­sued a “stop work or­der” to cease de­vel­op­ment im­me­di­ately on the prop­erty, cit­ing leg­isla­tive and reg­u­la­tory au­thor­ity why the de­vel­op­ment is not to pro­ceed pend­ing a de­ci­sion un­der ap­peal.

In reach­ing its re­cent de­ci­sion, the ap­peal board con­sid­ered tech­ni­cal ad­vice in­clud­ing the Carbonear Mu­nic­i­pal Plan and De­vel­op­ment Reg­u­la­tions. Ac­cord­ing to the lat­ter, the Brad­burys’ prop­erty is lo­cated within a Res­i­den­tial Ru­ral (RR) Land Use Zone.The pro­posed sin­gle dwelling is per­mit­ted use within the RR zone, sub­ject to de­vel­op­ment stan­dards in­clud­ing min­i­mum frontage of 30 me­tres.

Among other things the board con­sid­ered in par­tic­u­lar the town’s au­thor­ity to deny de­vel­op­ment on a lot that lacks the ap­pro­pri­ate road­way in­fra­struc­ture, as well as the town’s right to pass on costs to the ap­pli­cant to de­velop a road to the town’s stan­dards.

The board learned the road­way corridor, which pro­vides ac­cess to the Brad­burys’ prop­erty is lo­cated ei­ther wholly or partly within the Depart­ment of Trans­porta­tion high­way re­serve.

They also learned the town had not re­ceived any of­fi­cial no­ti­fi­ca­tion or deed of con­veyance re­lat­ing to the Brad­burys’ own­er­ship of the prop­erty, and would not be is­su­ing per­mits un­til they were pro­vided.

The town as­serted it does not own the land on which the road­way corridor is lo­cated. Even if the mu­nic­i­pal­ity did own the land, it would be con­trary to its Mu­nic­i­pal Plan and De­vel­op­ment Reg­u­la­tions to use tax­pay­ers’ money to fund a road de­vel­op­ment.

The Brad­burys ar­gued be­fore the board that town staff drive on, grade and plow the road.

Main­te­nance il­lu­sion

The board found “the al­leged use and main­te­nance of the ser­vice road may have cre­ated an il­lu­sion that the road is pub­licly main­tained.”

The town as­serted the road in ques­tion is “not an of­fi­cial road in the town’s in­ven­tory, or in­cluded on a reg­u­lar main­te­nance sched­ule sanc­tioned by the town coun­cil or ad­min­is­tra­tion.

The board did not find suf­fi­cient ev­i­dence to sup­port the Brad­burys’ ar­gu­ment that the road is pub­licly owned and main­tained by the mu­nic­i­pal­ity.

No per­mits

In looking at the town’s stop work or­der, the board learned at the hear­ing the de­vel­op­ment, in­clud­ing an ac­ces­sory build­ing, arte­sian well and place­ment of shale on the ser­vice lot, had been on­go­ing on the Brad­burys’ prop­erty, without any writ­ten per­mits from the town.

Frus­tra­tion

The board ac­knowl­edged it rec­og­nizes “the frus­tra­tion in­volved in sit­u­a­tions where prop­er­ties are pur­chased with be­liefs or as­sump­tions that the land is de­vel­opable, when in fact de­vel­op­ment is con­trary to the town’s poli­cies and reg­u­la­tions.

De­ter­min­ing that any de­vel­op­ment within a com­mu­nity re­quires a per­mit, the board ar­gued: “it is the re­spon­si­bil­ity of mem­bers of the pub­lic to en­sure pro­posed de­vel­op­ments fall within the guide­lines of what the town may per­mit in ac­cor­dance with its Mu­nic­i­pal Plan and De­vel­op­ment Reg­u­la­tions prior to pur­chas­ing prop­erty for de­vel­op­ment.”

Back at the June 8 coun­cil meet­ing, Coun­cil­lor Gla­dys Mercer, who chaired that por­tion of the meet­ing, asked Wal­ter Brad­bury: “When you called the town to in­quire about the prop­erty, were you mis­lead by any mem­ber of coun­cil or its em­ploy­ees?”

Ad­mit­ting he did not feel he had been mis­lead by any­one, Brad­bury replied, “but when we saw ve­hi­cles go back and forth (the road), we didn’t ques­tion that it was a town road.”

At the time, Coun. Mercer went on to point out that the town “has many pieces of land on ser­vice roads, but the cost of build­ing new roads would not be in our best in­ter­ests. And if we say yes to one, we have to say yes to all. We’ve had peo­ple liv­ing on dirt roads for 10 years,” the coun­cil­lor noted. She re­called coun­cil has had no less than five applications for sim­i­lar de­vel­op­ments ear­lier this year.

Town Ad­min­is­tra­tor Davis con­firmed the num­ber, adding, in all those cases coun­cil ad­vised the ap­pli­cants, “if they were pre­pared to ab­sorb this de­vel­op­ment cost, they could pro­ceed. In all cases, she noted the de­vel­op­ers agreed to pay the de­vel­op­ment costs.

Coun. Mercer won­dered what coun­cil would tell those who had al­ready paid, if the town were to ap­prove the Brad­burys’ ap­pli­ca­tion.

Reached in Van­cou­ver where she was va­ca­tion­ing last Thurs­day, Coun. Mercer told The Com­pass en­gi­neers have es­ti­mated a stan­dard road up­grade to bring the road in front of the Brad­burys’ prop­erty up to stan­dard to al­low their pro­posed de­vel­op­ment (construction of sin­gle dwelling) would cost the town’s tax­pay­ers $150,000. “That works out to $75 for each of the town’s ap­prox­i­mately 2,000 house­holds,” Coun. Mercer ex­plained.

Dis­crim­i­na­tion?

Wal­ter and De­bra Brad­bury as­sert they feel “dis­crim­i­nated against by the town” How­ever the board said it found “no ev­i­dence that Mr. and Mrs. Brad­bury were dealt with in a dis­crim­i­na­tory man­ner by the town...”

The board con­cluded not only that the town was within its au­thor­ity to deny the per­mit to build a res­i­dence on the prop­erty, un­der the cir­cum­stances, but the town had no choice. It is bound to per­mit de­vel­op­ment only ac­cord­ing to its own Mu­nic­i­pal Plan and De­vel­op­ment Reg­u­la­tions.

The board con­firmed the town’s de­ci­sion to refuse a per­mit to de­velop a sin­gle dwelling on the ser­vice road be­tween Bunker and English Hills.

The town is also bound by the East­ern New­found­land Re­gional Ap­peal Board’s de­ci­sion, which is bind­ing on all par­ties.

Com­pass file photo by Bill Bow­man WAL­TER AND DE­BRA BRAD­BURY re­view doc­u­ments and aerial maps dat­ing back to 1979 which show an un­named ser­vice road. The cou­ple lost their ap­peal to the East­ern New­found­land Re­gional Ap­peal Board, which con­firmed in its Oct. 8 rul­ing the town’s de­ci­sion to refuse a per­mit to de­velop a sin­gle dwelling on the ser­vice road be­tween Bunker and English Hills.

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