By Mark Squibb | May 6, 2021
Witless Bay town staff have been busy this year defending council’s actions before the Eastern Regional Appeal Board.
Not even five months into 2021, the town has had to appear before the Appeal Board eight times, with two more appeals pending this month. A number of the appeals have involved two residents who have been taking the Town to the Appeal Board, and sometimes court, for years.
For reference’s sake, staff members of the Town of Conception Bay South, which boasts about 26,000 residents, roughly 26 times the population of Witless Bay, faced only three appeal board hearings, with one pending for May.
It’s a steep increase for Witless Bay over last year when it faced only one appeal.
Of the eight appeals scheduled thus far for 2021, decisions have been returned on four, three have been postponed, and one remains pending.
Last week, The Shoreline reported on one of the appeals, in which a couple sought to overturn the decision of council to issue their neighbour a permit to build an accessory building. The couple felt the accessory building would hinder their ocean view, and harm their property value. The Appeal Board upheld the Town’s decision.
In another appeal heard by the Board on March 23, the appellant, Melanie LaFosse, whose parents live on Mullowney’s Lane, tried to overthrow the Town’s decision to issue a tender to extend a portion of Mullowney’s Lane and upgrade a right of way. LaFosse was represented by Gallows Cove resident Noel O’Dea, who has been fighting with council for years against any development in the area. O’Dea presented the board with “ten categories of arguments with sub-bullets.”
However, he failed to sway the three members of the Appeal Board. Instead, the Board accepted the advice of a municipal planner, who advised that infrastructure work on town roads is not considered “development” and that towns have the authority for the construction and maintenance of public roadways within their jurisdiction.
The Town’s chief administrative officer, Pat Curran, informed the board the purpose of the proposed extension is to allow access to multiple property owners in the area “and to improve the general public access to the beach and hiking trails.”
In their joint decision, the Appeal Board members ruled that under the Urban and Rural Planning Act it had no jurisdiction to hear LaFosse’s appeal. “Council has the authority for the construction and maintenance of public roadways, and for taking over privately developed roads to be used by the public and vested in the Town Council, as provided by Sections 163, 164, and 165 of the Municipalities Act,” the board ruled.
LaFosse and O’Dea and have since signified they intend to appeal the Appeal Board’s decision at the Supreme Court of Newfoundland. Their application for a court-ordered injunction to stop any work on Mullowney’s Lane is scheduled to be heard today, May 6.
Another appeal, also heard on March 23, sought to overturn the decisions of the Town to allow the reconstruction of a home at 215-217 Gallows Cove Road, which had been damaged by weather and then fully removed. The house is located next to property owned by O’Dea. However, the appellant was Ed Vickers, a Witless Bay property owner who has been part of a small circle including O’Dea, who have opposed development in the area for years. Vickers appeared as an interested party in the LaFosse appeal.
Vickers told the Appeal Board the Town had acted beyond its authority when it approved a permit for the reconstruction of the house. Vickers contended the proposed re-construction does not meet the Town’s development regulations. He further argued that the background history of the property should not have any bearing on the decision of the council, or Appeal Board, to approve the application.
In looking at council’s decision, the Appeal Board members noted the area in question is zoned Residential, which allows a single detached dwelling as an approved use. They agreed the Town does have the authority to approve the building application on the existing lot as long as it meets all the regulations pertaining to substandard lots. The Town was ordered to review the application again to make sure it meets those rules.
In still another appeal, former town councilor Ralph Carey fought the Town— and won, at least temporarily.
Carey fought a decision of council to grant approval in principle of an application from Stephen Dunne to build a family home on Dunne’s Lane. Carey argued that council had not responded to his concern that the well for the proposed house would be too close to his well. Carey also contended the development required a bigger variance from development standards than the Town is allowed to give.
The Board ruled the Town had not correctly followed procedures in its development regulations and ordered the approval be reversed. The Board further ordered that the application be referred back to council, and furthermore, that council pay Carey $230 to cover the cost of the appeal fee.
Dunne has since launched an appeal of his own and is scheduled to appear before the Appeal Board on May 21.
