CYPRESS COUNTY SUBDIVISION & DEVELOPMENT APPEAL BOARD

Transcription

1 Board Order No.: SDAB 17/01 Hearing Held: March 27, 2017 File No.: Development Application 17/08 CYPRESS COUNTY SUBDIVISION & DEVELOPMENT APPEAL BOARD CHAIRMAN: Jason Tweten Board Member: Gerald vossler Board Member: Lise Erfle Board Member: Ernest Mudie Board Member: Garry Lentz APPELLANTS: Don Simpson I DECISION: Having been satisfied that notice of this hearing was provided in accordance with the Municipal Government Act, R.S.A. 2000, Chapter M-26 as amended; upon having read the materials provided as set out in Appendix "A"; and upon having heard the representations from the parties listed in Appendix "B" with respect to the appeal filed by the Appellant from the decision of the Municipal Planning Commission, dated February 14, 2017, to approve a Development Permit to operate an early learning and childcare centre located at 5, 5519 South Boundary Road (Plan Block D Lot 8)(the "Property"); the Cypress County Subdivision and Development Appeal Board has decided to DENY the appeal and issue a Development Permit with conditions: 1. It is the responsibility of the Developer and/or Owner to ensure that any applicable Provincial and Federal statutes and regulations are complied with. 2. This Development shall comply with all regulations under the Land Use Bylaw except where a variance has been granted by the Municipal Planning Commission. 3. A new permit must be obtained for any future additions and/or changes in the use or the intensity of use of the land or buildings. 4. All waste disposal shall be the responsibility of the Developer and/or Owner and at his expense. 5. Alberta Municipal Affairs requires permits pursuant to the Safety Codes Act to be obtained prior to commencement of construction. Alberta Municipal Affairs has Authorized Accredited Agencies to review construction drawings, related documents and issue permits on their behalf. A list of Authorized Accredited Agencies are available at Cypress County office. 6. Any work or improvements in the County ditches including approaches between the property line and county roadway must be approved by the Public Works Department.

2 Page 2 7. The applicant is to obtain other necessary provincial approvals and provide copies of the approvals to Cypress County. 8. The hours of operation are limited to 7:00 A.M. to 6:00 p.m., Monday through Friday. 9. Subject to annual review. 10. Up to a maximum of 68 children and 12 employees. II FINDINGS OF FACT 1. The Property is zoned Country Residential (CR) in the Cypress County Land Use Bylaw 2016/16 (the "Land Use Bylaw"). 2. The Property is approximately 5.0 acres in size. 3. Public and quasi-public buildings and uses is listed as a Class II Discretionary use in a CR District and means a building or use on property which is used for social, educational, recreational, and governmental public buildings and uses. 4. Nature s Way Learning Centre, has been in operation at 5, 5519 South Boundary Road since the Cornerstone Christian School closed in Rising Stars Early Learning and Childcare Centre has similar business operations as Nature s Way Learning Centre. II REASONS FOR DECISION The Board is DENYING the appeal and issuing a Development Permit with conditions for the following reasons: A. Should the Board exercise its discretion to approve the requested development? 1. The Board's variance power is set out in Section 687(3)(d) of the Municipal Government Act which provides that the Board may make an order or decision or issue or confirm the issue of a development permit even though the proposed development does not comply with the Land Use Bylaw if, in its opinion, (i) the proposed development would not: (A) Unduly interfere with the amenities of the neighbourhood, or (B) Materially interfere with or affect the use, enjoyment or value of neighbouring parcels of land, and

3 Page 3 (ii) the proposed development conforms to the use prescribed for that land or building in the land use bylaw. 2. The Board's variance power is discretionary and before the Board applies the test set out in Section 687(3)(d), the Board must be satisfied that the requested variance satisfies relevant planning and development considerations which, in this matter, includes examining the overall suitability of the site of the proposed location for a public and quasi-public buildings and uses. 3. As defined by Wikipedia child care is the caring for and supervision of a child or children, usually from age 6 weeks to age thirteen and include learning environments such as early childhood education. School is defined as an institution designed to provide learning environments for the teaching of students. 4. In the Board's opinion, the land is zoned to allow for public and quasi-public buildings and uses. Given the definition of public buildings and uses and the operation of a learning centre since 2010, this development would be compatible to the current use of the property. 5. Based on the evidence provided, the Board is of the opinion that the proposed development is suitable because the use of the development has not changed. CLOSING: This decision can be appealed to the Court of Appeal on a question of law or jurisdiction. If you wish to appeal this decision you must follow the procedure found in Section 688 of the Municipal Government Act, R.S.A Chapter M-26 which requires an application for leave to appeal to be filed and served within 30 days of this decision. Dated at the Hamlet of Dunmore, in the Province of Alberta this 7 th day of April, 2017 and signed by the Chair of the Subdivision Development Appeal Board who agrees that the content of this document adequately reflects the appeal hearing, deliberations and decision of the Board. Jason Tweten, Chairman

4 Page 4 APPENDIX A EXHIBIT LIST: A. Letter of Appeal dated February 28, 2017 B. Development Application No. 17/08 C. Development Officer's Report dated March 27, 2017 D. Pictures (two) submitted by Appellant indicating issues with traffic and parking E. Letter Green Valley Water Co-op APPENDIX "B" Persons who gave evidence or made submissions at the Hearing: Pam Pirsch, Development Officer Don Simpson, Appellant Travis Tuchscherer, Property Owner Amanda Rayner, Development Permit Applicant Owen Telke, Property owner Ron Heinrich, Property owner

5 SUMMARY OF PROCEEDINGS Development Appeal Board Hearing Development Permit 17/08 March 27, 2017 PRESENT: Jason Tweten, Chairman Lise Erfle Garry Lentz Ernest Mudie Gerald Vossler Jason Storch, Technical Advisor Becky Mack, Recording Secretary CALL TO ORDER: 1:31 P.M. To provide clarity, these minutes may not portray the exact order in which events occurred. The Chairman explained that the hearing would be recorded and the necessary actions required of persons giving evidence. CALL OF ELECTION: Vice Chairman, Mr. Tweten, opens nominations for Chairman. Mr. Mudie Nominates Jason Tweten for Chairman. Mr. Tweten is Chairman by acclamation. INTRODUCTION OF THE BOARD AND ADMINISTRATIVE STAFF: The Chairman introduced the Board and administrative staff to the appellant. The Chairman asked the appellant if there was any objection to any of the Board members hearing the appeal. The appellant, Mr. Simpson, stated he had no objection. CONFIRM RECORD OF PROCEEDINGS: Mr. Lentz moved to confirm the record of proceedings. Carried Unanimously.

6 Development Application 17/08 Page 2 INTRODUCTION OF APPEAL BY SECRETARY: The Secretary stated the appeal is launched by Don Simpson against the decision of the Municipal Planning Commission approving Development Permit 17/08 to operate an early learning & childcare centre located at 5, 5519 South Boundary Road (Plan Block D Lot 8). This appeal is valid, as it was filed within the fourteen day appeal period with the required fee. The Chairman asked if all parties are satisfied with the description of the appeal as given. The Board members and the appellant stated they had no objections. PRESENTATION BY PLANNING DEPARTMENT: Pam Pirsch, Development Officer, presented the Development Officer s Report as attached and form part of these minutes. QUESTIONS BY THE BOARD, APPELLANT, & OTHER PARTIES: PRESENTATION BY APPELLANT: There were no questions following the Development Officer s report. Mr. Simpson explained his appeal letter as well as who has signed his letter. He clarified that the appeal is not a personal matter. His main objections are that there is a business being run in a residential subdivision and the traffic that the business will bring to the subdivision. He complained about traffic to Cypress County numerous times. Mr. Simpson laid out the history of the property and how the developer placed a Restricted Covenant on the land which allowed the Christian School to be in operation in the subdivision. Mr. Simpson stated that Cypress County ignored the Restricted Covenant when approving the development permit for the Nature s Way Learning Centre

7 Development Application 17/08 Page 3 and is again with Rising Star Learning Center. His interpretation of the covenant is that no businesses are allowed and by definition a daycare is a business. The covenant also states that mobile trailers are not allowed in the subdivision and the school was built with mobile trailers on a dirt foundation. Mr. Simpson read the Covenant put on the land by Garnet Leech. Mr. Simpson also had concerns with the water turnouts that were granted to Mr. Tuchscherer. He feels that permission was given verbally by the past president rather than going through the water co-op board and he is sure that multiple turnouts are against the co-op s regulations. Mr. Simpson read the letter from Green Valley Water Co-op (attached). QUESTIONS BY THE BOARD, APPELLANT, & OTHER PARTIES: Mr. Lentz asked how many users are on the water co-op and how many cubic meters per day is allowed. Mr. Simpson indicated that there are 22 users and with help from members of the audience confirmed either 5 gal/min or 8 gal/min is the allowance. Mr. Tweten asked if, in regards to traffic complaints, was Ms. Pirsch s report accurate that Cypress County dealt with the parking problem once it was reported. Mr. Simpson presented pictures of the parking lot and pointed out the problem areas. He agreed with the report. PRESENTATIONS MADE IN SUPPORT OF THE APPELLANT: Ron Heinrich lives at #1, 5519 South Boundary Road. He had a concern with the new business and the traffic it will bring. When the Christian School was in operation traffic was manageable as most children were bussed but now Mr. Heinrich claimed there are over 300 vehicles travelling in front of his property per day. Also, Mr. Heinrich does not understand how Mr. Tuchscherer was able to acquire water seeing as the rest of the owners are on restricted water and he also knows of requests for water hookups that have been declined. Owen Telke lives at #2, 5519 South Boundary Road and he did not have a problem with the new business until he

8 Development Application 17/08 Page 4 experienced the problem with traffic while trying to get in and out of his yard with equipment and when walking to the mail boxes. In addition, Mr.Telke worried that the City of Medicine Hat will close the current access to the subdivision due to the large amount of traffic. Lastly, Mr. Telke is concerned about how water was granted to Mr. Tuchscherer from the water co-op. PRESENTATIONS MADE IN OPPOSITION OF THE APPELLANT: Travis Tuchscherer is the owner of #5, 5519 South Boundary Road, the property in question. He feels that not all facts have been presented. As an investor he did his due diligence when purchasing the property. He spoke to Cypress County and was advised that as long as there is sufficient water the permit would be approved. Mr. Tuchscherer attended the water co-op meeting and inquired about receiving water and was told at the meeting that it would be okay and received a letter from the water co-op confirming this. Mr. Tuchscherer is only requesting to change the name of the business on the property, not to change the use of the business so does not understand the issue. Mr. Tuchscherer has put a lot of unexpected funds into this property and is now worried if this appeal is upheld he will not be able to recover them. QUESTIONS BY THE BOARD AND OTHER PARTIES: Mr. Tweten asked Ron Heinrich to point out on the aerial where his lot is and where the traffic runs. Mr. Heinrich pointed this out on the aerial. Mr. Lentz asked Mr. Heinrich to confirm his calculation of 300 vehicles per day. Mr. Heinrich explained that there are 80 children plus staff and that each of them drive by his property 4 times per day which comes out to over 350. Mr. Tweten confirmed that the board has a copy of the letter from the president of the water co-op. Ms. Mack retained a copy from Mr. Simpson. Mr. Tweten asked Mr. Telke how much traffic has changed from Cornerstone Christian School to current. Mr. Telke described that there were only about 4 or 5 buses and

9 Development Application 17/08 Page 5 currently there are parents and staff driving back and forth. Mr. Telke would actually like to see the speed limit lowered. Ms. Erfle asked Mr. Tuchscherer if he has a signed, sealed letter from Green Valley Water Co-op. Mr. Tuchscherer indicated that yes he does have signed letter from the Board with no expiry date. He also confirmed that there is only one turnout on the property. Mr. Lentz asked if the water line has a restrictor on it. Mr. Tuchscherer confirmed that there is a restrictor on the line as well as one water meter before the line splits into each building. Mr. Vossler asked if the property is connected to City sewer. Mr. Tuchscherer stated that the property has a septic tank. Mr. Lentz asked how many gallons of water are being used. Mr. Tuchscherer stated that he is not sure but can find out and submit it. Mr. Lentz indicated that is not necessary, he just wanted to make sure that more water was not being used. Mr. Tweten asked if it was Mr. Tuchscherer s full intention to continue with the business or was it to be solely for residential use (when purchasing the property). Mr. Tuchscherer indicated that his intention was always to keep the business going. Mr. Tuchscherer added that if the name of the learning centre was not changing it likely would have been left alone. Nature s Way has been in operation since 2010 and he purchased the property in Ms. Erfle asked that since traffic has changed and become an issue, is bussing the children an option. Ms. Rayner, owner of Rising Stars, stated that she is willing to look into leasing a bus. Mr. Tweten asked if there are drop off times and pick up times. Ms. Rayner explained that cut off for drop off is at 10 am but has a few casual kids that come throughout the day. Pick up is usually around 3 pm. Ms. Rayner would be willing to work on cut off times if needed, keeping in mind that there are appointments and such that may come up. Mr. Erfle asked how long would it take for approval to lease a bus. Ms. Rayner stated that it would depend on licensing, insurance, and the bus company but she could get the

10 Development Application 17/08 Page 6 process started right away. Ms. Rayner stated that some families would have multiple children, so traffic would not be as impactful as indicated. Ms. Erfle asked if water co-op is denied, is there a backup plan in place and how does the water system work now. Mr. Tuchscherer stated that he had not thought about the water co-op being denied but a cistern could be a possibility. Also, the current system is metered. Mr. Tweten asked when the lease for Nature s Way is ending and Rising Star is supposed to start. Mr. Tuchscherer confirmed the lease is changing in September. Mr. Tweten asked what will happen to the buildings if the appeal is upheld. Mr. Tuchscherer explained that since he is just changing names not the use then likely no other business would be approved either so the buildings would not hold any value. Mr. Mudie asked who enforces Restricted Covenants and how bound to them are we. Mr. Simpson stated that since the owner is deceased then Cypress County should be looking after the Restricted Covenant. Ms. Pirsch explained that it is between the land owner and the developer and Cypress County has no say in the matter. Mr. Dowling, Planning Supervisor, explained that Restricted Covenants are enforced by each title holder and does not default to Cypress County unless they initialized the Covenant which in this case they did not. Cypress County is obligated to recognize and acknowledge any Covenants but are not bound by them. Mr. Tweten asked if Nature s Way was to extend their lease, is a development permit needed. Ms. Pirsch answered no. Mr. Tweten asked why Rising Stars needs to make an application if the use is not changing. Ms. Pirsch referred to the Land Use Bylaw, Section 22. Ms. Pirsch stated that if Rising Stars does not go ahead, the development permit for Nature s Way is still valid. Mr. Tweten asked if maybe this appeal should have been done when Nature s Way applied. Ms. Pirsch replied that the development permit to Nature s Way was issued in 2010 and at that time Cypress County was supplied with a letter

11 Development Application 17/08 Page 7 with signatures from adjacent land owners supporting the daycare and had no appeals filed. Mr. Tweten asked if the Green Valley Water Co-op needs to approve the use of the water after the turnout. Mr. Simpson confirmed that once the turnout is approved it does not matter what the water is used for. Mr. Tweten asked for confirmation that usage does not matter. Mr. Simpson confirmed yes. Mr. Tweten asked if the water co-op board has ever denied other turn out uses. Mr. Simpson stated that new turnouts have been denied but not turn out uses. FINAL COMMENTS: Mr. Simpson recapped that this is a Country Residential subdivision and Cypress County has allowed a residence and a business on one property. Mr. Heinrich recapped that he had no knowledge of a daycare starting up after the school closed and does not recall signing a letter of support for it. He realizes now he should have appealed back when the school closed. Mr.Telke recapped that he was on the executive of the water co-op when they had an emergency meeting about a turnout for Mr. Tuchscherer. At that time, all members showed concern for the service being allowed. Mr. Tuchscherer was told then that if the daycare ever changed the service would be stopped. Mr. Telke also recalled that when Noel Schnell signed the letter of support for Nature s Way, he was told there would be less children, 35 compared to FAIR HEARING: The Chairman asked the persons who made presentations if they felt they had a fair hearing. All parties responded that they felt they had a fair hearing. PUBLIC HEARING ADJOURNMENT: 3:14 P.M.

12 Development Application 17/08 Page 8 DECISION: Mr. Ernest Mudie moved to deny the appeal and issue Development Permit 17/08 for the operation of an early learning and childcare centre subject to the following conditions: 1. It is the responsibility of the Developer and/or Owner to ensure that any applicable Provincial and Federal statutes and regulations are complied with. 2. This Development shall comply with all regulations under the Land Use Bylaw except where a variance has been granted by the Municipal Planning Commission. 3. A new permit must be obtained for any future additions and/or changes in the use or the intensity of use of the land or buildings. 4. All waste disposal shall be the responsibility of the Developer and/or Owner and at his expense. 5. Alberta Municipal Affairs requires permits pursuant to the Safety Codes Act to be obtained prior to commencement of construction. Alberta Municipal Affairs has Authorized Accredited Agencies to review construction drawings, related documents and issue permits on their behalf. A list of Authorized Accredited Agencies are available at Cypress County office. 6. Any work or improvements in the County ditches including approaches between the property line and county roadway must be approved by the Public Works Department. 7. The applicant is to obtain other necessary provincial approvals and provide copies of the approvals to Cypress County. 8. The hours of operation are limited to 7:00 A.M. to 6:00 p.m., Monday through Friday. 9. Subject to annual review. 10. Up to a maximum of 68 children and 12 employees.

13 Development Application 17/08 Page 9 Carried. CHAIRMAN