It was three strikes you’re out for a man from Witless Bay who appeared before the Eastern Newfoundland Regional Appeal Board last month. Well-known council critic and former council candidate Edward Vickers appeared three times before the board in one day last month, losing one appeal he had launched himself against the Town, another in which he represented a local resident, and was disappointed in a third, unrelated, case in which he spoke in support of an appellant.
Vickers’ own appeal was against a decision of the council this past January to approve construction of a gazebo on land owned by Gary and Anne Marie Churchill off Mulowney’s Lane. The story dates back much father than that, however, and is familiar to many Witless Bay residents. The Churchills first applied to build a gazebo on their land in August 2015. The then council, which was controlled by a group hotly opposed to any development of private land in the area, rejected the application. The Churchills appealed that decision and won with the Eastern Regional Appeal Board ruling on December 7 last year that the Town must overturn its rejection and consider the matter in full again. That led to the January 9 decision to approve the gazebo.
In a hearing before the Appeal Board on October 17, Vickers argued that council failed to follow procedural guidelines, acted on “an erroneous set of facts,” acted in abuse of its statutory authority and “in excess of its legislation authority.” The Appeal Board, composed of Chairman Cliff Johnston and members Paul Boundridge and Robert Warren, didn’t buy those claims. “The gazebo appears to fall under the definition of Outdoor Assembly, which can be allowed as a Discretionary Use in the Rural Zone,” wrote Appeal Board Secretary Robert Cotter in summarizing the board’s findings. “In arriving at its decision, the Board reviewed the submissions and comments given by all parties present along with the technical information and planning advice… Based on the information presented, the Board orders that the decision of the Town of Witless Bay of January 9, 2018 to approve a gazebo at Mullowney’s Lane under Discretionary Use of Council under Section 90 of the Town of Witless Bay Development Regulations be confirmed.”
Vickers ran into a similar lack of success in a manner concerning a hen house. Speaking in support of residents Gideon Barker and Jaclyn Humphries, Vickers argued against the Town’s order to remove a chicken coop that they had constructed on their property without a permit. According to the couple, they had researched options of places where hobby farming was allowed before they decided to move to Witless Bay and buy property on Dunn’s Lane. The couple argued that hobby farming in various forms already takes place within the town, and they had no intention of defying council. They further maintained that the council at the time didn’t have quorum to decide on the application and the couple was feeling pressure to remove their hens from St. John’s and relocate them to their new home in Witless Bay. The couple also maintain that as far as the risk of contaminating well water is concerned, which was raised by a resident in the area, their properly constructed coop and “stringent practices of daily waste disposal” would have less impact on groundwater than that of free roaming dogs or cats in the town. And as for rodents, they argued, they may be present anywhere in a community.
In considering the matter, the Board highlighted several questions that had to be settled including whether hobby farming is allowed in the residential zone where the couple resides, whether a chicken coop is a permitted use in the zone, and whether the couple built the coop after obtaining the necessary permit from the Town Hall. Johnston and his fellow board members allowed that while hobby farming is permitted, and a coop is a permitted use as an accessory building, the couple had not obtained a permit from the town before they built the structure and housed their hens in it. The Board members pointed to a section of the town’s development regulations which state, “No person shall carry out any development within the Planning Area except where otherwise provided in these Regulations, unless a permit for the development has been issued by the Authority.” The board further ruled that Witless Bay council was within its authority to issue the order to remove the chicken coop.
Vickers’ third strike before the Board concerned a resident’s appeal of a council decision last February to deny her a permit for an extension to an existing garage on O’Brien’s Road. According to the Secretary’s account of the proceedings, Vickers argued the Town’s decision was unjustified because the garage is
on a parcel of land over 1.5 acres in size. In this case, the Board decided that while an accessory building is permitted in the zone, council was within its authority to deny the application because the structure exceeded the maximum floor area of 70 square metres and a maximum height of six metres. “Council made the decision to not use its discretionary authority to allow the proposed extension,” the Board members agreed, but added, “Council has the authority to use its discretionary authority as it feels appropriate.”
