Bryson Guptill, a retired public servant who worked as a senior policy adviser for federal and provincial governments in Ottawa and Charlottetown, provided the following opinion article.
Seven months after members of the public raised concerns about a major development project at Point Deroche, details are emerging about pressure exerted on bureaucrats to approve the project despite non-compliance with building setback regulations and other shortcomings. The details have emerged in response to freedom of information requests filed by private citizens and released on April 11, 2023.
The paper trail started with approval of the purchase of a 17-acre parcel of land in Point Deroche. The sale was authorized under the Lands Protection Act by executive council on Sept. 22, 2020.
Subsequently, an application was made to tear down a two-storey cottage and seawall that were on the site and replace them with a new “cottage” consisting of five interconnected buildings and an armour stone seawall that extended approximately 60 feet out from the natural bank east and west of the building site.
Construction begins
On June 21, 2021, Dale Thompson, an environmental protection officer with the Department of Environment, asked if the developer had considered “reshaping the protected area to better conform with the existing shoreline on either side.” On June 24, 2021, Mr. Thompson suggested “removing a portion of the area protruding out from the adjacent shoreline to flatten the protrusion rather than extending out the sides.”
If that suggestion had been followed, much of the public outcry about the development would have been prevented.
Instead, the developer continued to push for approval to move armour stone onto the beach and out to the old seawall. The edge of the armour stone was labelled “top of the bank” – possibly contrary to the meaning outlined in the Planning Act subdivision and development regulations. This meant the starting point for the 15-metre buffer zone would be 60 feet seaward of the natural “top of the bank,” placing the north wall of the new building seaward of the bank east and west of Point Deroche.
In spite of this, a development permit was issued for the development on Sept. 7, 2021.
Construction started in May 2022 and by early September, building footings were laid out. Within days of the footings being established, citizens began contacting the Department of Agriculture and Land claiming the development did not conform with buffer zone and set back requirements.
Stop work order
After a site inspection, Alex O’Hara, a manager with the Department of Agriculture and Land, notified the building contractor, Nicholas Jay, that the building would need to be set back 75 feet from the top of the bank to comply with Planning Act regulations. A day later, on Sept. 14, 2022, officials shut down the development and issued a stop work order. The stop work order stated the development did not meet buffer zone and other requirements.
Over the next few days, the developer was able to convince officials that the building was outside the restricted 15-metre buffer zone. But, according to officials, it would still need to be moved back 25 feet to comply with the building setback requirements. There is no evidence this was done.
Two weeks later, after post-tropical storm Fiona, Nicholas Jay wrote to Eugene Lloyd, manager, provincial planning, indicating that because of the “ongoing hurricane season … our construction crews are (going) to resume work in the next week.”
He went on to say, “We have made clear our intentions and the fact that our finished project will be within the framework of our permits and accompanying plans.” He did not mention that the building was still 25 feet short of the setback requirements laid out in the regulations.
On Oct. 19, Eugene Lloyd wrote back that “based on conversations with the Department of Environment, Energy and Climate Action, the existing footprint of the structure appears to be outside the required 15-metre buffer zone.” Again, no mention was made of construction being well short of the 75 feet setback. Mr. Lloyd goes on to say, “Please proceed with your build and disregard the previously issued cease construction order”.
Questions unanswered
The construction at Point Deroche has now continued over the winter months and the owner is projecting the building will be completed sometime in 2024.
Meanwhile, the public is left wondering how the “protrusion” highlighted by Dale Thompson on June 21, 2021, got approved in the first place and why construction was allowed to proceed when it was 25 feet short of the legally required setback.
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