SDAB-D-08-288
APPLICATION NO.: 81762653-001
An appeal by Burkinshaw Law Office to construct a rear
uncovered deck, existing without permits, on Lot 2, Block
23, Plan 0524080 located at 6119 – 165 Avenue, was
TABLED TO DECEMBER 11, 2008.
Subdivision and
Development Appeal Board
0
Office of the City Clerk
3rd Floor, City Hall
1 Sir Winston Churchill Square
Edmonton AB T5J 2R7
Telephone: 780-496-6079
Fax: 780-496-8175
DATE: December 12, 2008
APPLICATION NO: 79286242-001
FILE NO.: SDAB-D-08-289
NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD
This appeal dated November 4, 2008, from the decision of the Development Authority for
permission to:
Construct a General Retail Store/Apartment House (one Dwelling) building
on Lot 9, Block 29, Plan RN43, located at 11335/11337 – 95 Street, was heard by the
Subdivision and Development Appeal Board at its meeting held on November 27, 2008. The
decision of the Board was as follows:
SUMMARY OF HEARING:
“The Board heard two appeals of the decision of the Development
Authority to approve with conditions and variances an application to
construct a General Retail Store/Apartment House (one Dwelling)
building, located at 11335/11337 – 95 Street. The subject site is zoned
CNC Neighbourhood Convenience Commercial Zone. The appeals are
based on concerns regarding the proposed retail use and the variance
allowed in the front yard setback.
The Board notes there were no letters of support or opposition received.
The Board first heard from Kihyun Lee, who spoke on his behalf and his
parents, Inchae Rho and Bokmyung Lee. He stated that he was speaking
as both a business owner and resident of the neighbourhood. He made the
following points in support of his appeal:
1.
2.
There are several other large food stores in the nearby area.
He and his family operate a small food market and they would find
it difficult to be competitive with another food store development
being located so close to their operation.
SDAB-D-08-289
2
December 12, 2008
SUMMARY OF HEARING: (CONTINUED)
3.
4.
5.
Without an increase in the neighbourhood population, both stores
operating in the neighbourhood would not be viable.
Although the proposed development stated they intended to sell
“different goods”, he felt both operations would, eventually, fail.
As a resident of the area, he advised there were homeless persons,
drug dealers and prostitutes that loiter in front of their store
because of the heat and light available. Another similar type of
operation would, in his opinion, increase the loitering problem on
the block.
In response to questions from the Board regarding any objections he had
to the variances being granted, Mr. Lee felt that parking should be in
accordance with the Edmonton Zoning Bylaw. He also noted that their
property is similar to the setback of the commercial property immediately
south of the property. He stated that it was relatively easy to park in the
area.
The Board then heard from Mr. Gordon Coxson, the owner of the property
immediately south of the subject site.
He made the following
submissions:
1.
2.
3.
4.
5.
6.
7.
His property is set back in accordance with the rest of the
blockface.
The proposed development would be sited considerably closer to
95th Street and the height would compromise his tenant’s
enjoyment of their accommodation. The windows in the north side
of his building would look directly into a brick wall.
He was also against another food sales establishment being opened
in the area.
He does encourage redevelopment in the area. He purchased his
four-plex 10 years ago.
He agrees that the blockface has changed but the reduced front
yards were found on either end of the block.
He did not object to the relaxation of the required number of
parking stalls. He did not think that parking in the neighbourhood
was currently a problem but acknowledged there are fluctuations
from time to time depending on public transit schedules, church
services and redevelopment on properties.
He suggested that the proposed development could be set back
further on the blockface or, at least, the second storey set back in
order to minimize the front massing of the building.
SDAB-D-08-289
3
December 12, 2008
SUMMARY OF HEARING: (CONTINUED)
8.
9.
10.
11.
He felt the proposed development was not a good integration into
the neighbourhood.
He was not concerned with the height of the proposed development
as he expects that whatever is developed on the site would have a
commercial aspect to it and be two storeys in height.
Screening at the rear of the subject site would be desirable as he
has mature vegetation at the rear of his site.
The owner of the furniture store had purchased the single detached
house south of their site and he understood it was scheduled to be
demolished and likely used as a parking lot until such time as it is
redeveloped.
The Board then heard from Shahbaz Queshi, agent for Osama Beniameen,
the Respondent. He provided the following information in support of the
proposed development:
1.
2.
3.
4.
5.
He designed the development to be consistent with the commercial
buildings already on the block, including the buildings across 95
Street.
The Beniameen family intends to run a small general retail food
store with limited merchandise for a specialized market. The
family has two small children and would be living above the store.
He felt that parking would not be a problem given there is ample
parking in the front of the proposed development on 95th Street and
across 95th Street. The reduction in the number of parking spaces
from six to four would not cause any hardship.
He felt that placing the proposed development further back on the
lot would cause a problem for the tandem parking at the rear.
There is a “flex” room to be used for storage.
In rebuttal, Mr. Lee advised that their commercial development was set
back more than 1.5 metres but acknowledged that it is set back the same as
the commercial building directly south.
Mr. Coxson expressed some confusion over the proposed development
being described by Mr. Qureshi as “consistent with the blockface.” He
felt there could be some revision to the setback.
SDAB-D-08-289
4
December 12, 2008
SUMMARY OF HEARING: (CONTINUED)
He clarified that the vacant lot located across 95th Street would not be able
to provide parking for the proposed development and would eventually be
developed. He reiterated that he was not concerned with the height or the
window placement of the development.
DECISION:
that the appeals be ALLOWED and the DEVELOPMENT REFUSED
REASONS FOR DECISION:
The Board finds the following:
1.
2.
3.
4.
The proposed development is a Discretionary Use in the CNC
Zone.
The Board notes that the CNC Zone requires a 4.5 metre set back
and the proposed development has a 1.5 metre set back.
The Board accepts the evidence of the Appellant, Mr. Coxson, that
the most immediately affected neighbours to the north and to the
south of the site are set back in conformity with the regulations of
the Edmonton Zoning Bylaw. Therefore, in the opinion of the
Board, allowing a relaxation in the set back of the front yard will
materially interfere with the neighbouring parcels of land.
The Board accepts the evidence of the Appellant, Mr. Coxson, that
the design of the proposed development, with the setback of 1.5
metres, will compromise the view angles from the neighbouring
properties to the north and south.
SDAB-D-08-289
5
December 12, 2008
SUMMARY OF HEARING: (CONTINUED)
5.
6.
The Board notes that developments on the lots situated on the
north side of the subject site, which do have the setback of
approximately 1.5 metres, are single storey developments while the
proposed development is three storeys in height and will, therefore,
present more massing when viewed in the context of the
streetscape.
For the above reasons, the proposed development would unduly
interfere with the amenities of the neighbourhood, or materially
interfere with or affect the use, enjoyment or value of neighbouring
parcels of land.”
IMPORTANT INFORMATION FOR APPLICANT/APPELLANT
1.
THIS IS NOT A BUILDING PERMIT. Such permit must be obtained separately from
the Development and Inspection Services, Planning and Development Department,
located on the 5th Floor, 10250 – 101 Street, Edmonton.
2.
The appellant is advised there may be issues relating to the building code involved with
this application and the appellant should review the proposal with the Development and
Inspection Services of the Planning and Development Department.
3.
When an application for a development permit has been approved by the Subdivision and
Development Appeal Board, it shall not be valid unless and until:
a)
any conditions of approval, save those of a continuing nature, have been fulfilled.
4.
Except as provided in the DC2 District, IF DEVELOPMENT AUTHORIZED BY A
DEVELOPMENT PERMIT IS NOT COMMENCED WITHIN TWELVE MONTHS
FROM THE DATE OF ITS ISSUE, SUCH PERMIT CEASES TO BE VALID, provided
that, if the permit holder is unable to proceed pending a court decision involving the
proposed development, time shall not run until such proceedings are finally completed.
5.
Notwithstanding Clause (1) above, if a Building Permit is issued for the development
within the twelve month period, the Development Permit issued therefore shall not lapse
by virtue of work not having commenced within the statutory minimum development
permit.
SDAB-D-08-289
6.
6
December 12, 2008
If the Subdivision and Development Appeal Board is served with notice of an application
for leave to appeal its decision under Section 688 of the Municipal Government Act, such
notice shall operate to suspend the development permit. Section 688 of the Municipal
Government Act, 1994, provides that:
(1)
Notwithstanding Section 506, an appeal lies to the Court of Appeal on a question
of law or jurisdiction with respect to:
(a)
(b)
(2)
a decision of the Subdivision and Development Appeal Board, and
the Municipal Government Board on a decision on an appeal under
Section 619, an intermunicipal dispute under Division 11 or subdivision
appeal under this Division.
An application for leave to appeal pursuant to subsection (1) must be made to a
judge of the Court of Appeal within 30 days after the issue of the decision sought
to be appealed and notice of the application must be given to:
(a)
(b)
the Municipal Government Board or the Subdivision and Development
Appeal Board; and
any other persons that the judge directs.
(3)
On hearing the application and the representations of those persons who are, in
the opinion of the judge, affected by the application, the judge may grant leave to
appeal if the judge is of the opinion that the appeal involves a question of law of
sufficient importance to merit a further appeal and has a reasonable chance of
success.
(4)
If the judge grants leave to appeal, the judge may
(a)
(b)
(c)
(5)
direct which persons or other bodies must be named as respondents to the
appeal.
specify the questions of law or the questions of jurisdiction to be appealed,
and
make any order as to the costs of the application that the judge considers
appropriate.
If an appeal is from a decision of a Subdivision and Development Appeal Board,
the municipality must be given notice of the application for leave to appeal, and
the board and municipality:
(a)
(b)
are respondents in the application and, if leave is granted in the appeal,
and
are entitled to be represented by counsel at the application and, if leave is
granted, at the appeal.
SDAB-D-08-289
7
December 12, 2008
NOTE:
(1)
When a decision on a development application has been rendered by the
Subdivision and Development Appeal Board, the enforcement of that decision is
carried out by the Development and Inspection Services, Planning and
Development Department, located on the 5th Floor, 10250 – 101 Street,
Edmonton, AB (Telephone: (780) 496-3100).
(2)
When an application is approved and an agreement or caveat is required, the
registration costs are the responsibility of the applicant. These costs must be paid
to the City of Edmonton before the plans and application will be processed.
Ms. L. Parish, Presiding Officer
SUBDIVISION AND DEVELOPMENT
APPEAL BOARD
Subdivision and
Development Appeal Board
0
Office of the City Clerk
3rd Floor, City Hall
1 Sir Winston Churchill Square
Edmonton AB T5J 2R7
Telephone: 780-496-6079
Fax: 780-496-8175
DATE: December 12, 2008
APPLICATION NO: 81270228-001
FILE NO.: SDAB-D-08-290
NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD
This appeal dated October 31, 2008, from the decision of the Development Authority for
permission to:
Construct a rear uncovered deck (3.04 metres by 3.13 metres at 1.08 metres high)
on Lot 5, Block 45, Plan 3510Q, located at 6813 – 106 Street, was heard by the Subdivision and
Development Appeal Board at its meeting held on November 27, 2008. The decision of the
Board was as follows:
SUMMARY OF HEARING:
“The Board heard an appeal of the decision of the Development Authority
to refuse an application to construct a rear uncovered deck (3.04 metres by
3.13 metres at 1.08 metres high), located at 6813 – 106 Street. The subject
site is zoned RF3 Low Density Development Zone and falls within the
Mature Neighbourhood Overlay. The application was refused because of
an excess in maximum allowable Site Coverage for the principal building
and a deficiency in the minimum required Rear Yard, that being 40
percent of the Site Depth.
The Board heard from the Appellant, Mona Innes, who submitted the
following in support of her appeal:
1.
2.
3.
She is in the process of selling the property.
The survey plans had small discrepancies in the lot dimensions
between the original survey and later survey and she had not been
able to compute the exact area.
She submitted a number of letters of support from neighbouring
property owners and the Allendale Community League.
SDAB-D-08-290
2
December 12, 2008
SUMMARY OF HEARING: (CONTINUED)
4.
5.
6.
7.
8.
9.
10.
She had done her neighbourhood consultation of residents within
the 60 metre notification radius. She noted that the neighbour
across the street did not sign due to a language issue and a second
person would not open the door for her.
She could not reach 11 of the properties which she felt were likely
rental properties.
In the 60 metre notification area, there are only nine private owners
and none indicated they had any problem with the deck
The deck could not be seen by any of the neighbours other than
those immediately adjacent to the site.
The owner of a nearby four-plex development had no objections to
the proposed development.
To her knowledge, her mother had never had any complaints about
the deck.
The deck was built at the same time as the principal dwelling,
some thirty years ago. There has been no change in the size of the
deck but some repairs had been made to ensure the stability of the
deck.
DECISION:
that the appeal be ALLOWED and the DEVELOPMENT GRANTED and
the excess of 17.61 square metres in maximum allowable site coverage for
the principal building and a deficiency of 1.19 metres in the minimum
Rear Yard requirement, that being 40 percent of the Site Depth be
permitted
REASONS FOR DECISION:
The Board finds the following:
1.
2.
3.
4.
The proposed development is accessory to a Permitted Use in the
RF3 Zone.
The Appellant demonstrated there was considerable support for the
continued existence of the deck by providing support from both
neighbouring property owners and the Community League.
There were no letters of opposition received and no one appeared
in opposition to the proposed development.
The subject deck has been in existence for approximately 30 years
without complaint.
SDAB-D-08-290
3
December 12, 2008
REASONS FOR DECISION: (CONTINUED)
5.
For the above reasons, the proposed development would not
unduly interfere with the amenities of the neighbourhood, or
materially interfere with or affect the use, enjoyment or value of
neighbouring parcels of land.”
IMPORTANT INFORMATION FOR APPLICANT/APPELLANT
1.
THIS IS NOT A BUILDING PERMIT. Such permit must be obtained separately from
the Development and Inspection Services, Planning and Development Department,
located on the 5th Floor, 10250 – 101 Street, Edmonton.
2.
The appellant is advised there may be issues relating to the building code involved with
this application and the appellant should review the proposal with the Development and
Inspection Services of the Planning and Development Department.
3.
When an application for a development permit has been approved by the Subdivision and
Development Appeal Board, it shall not be valid unless and until:
a)
any conditions of approval, save those of a continuing nature, have been fulfilled.
4.
Except as provided in the DC2 District, IF DEVELOPMENT AUTHORIZED BY A
DEVELOPMENT PERMIT IS NOT COMMENCED WITHIN TWELVE MONTHS
FROM THE DATE OF ITS ISSUE, SUCH PERMIT CEASES TO BE VALID, provided
that, if the permit holder is unable to proceed pending a court decision involving the
proposed development, time shall not run until such proceedings are finally completed.
5.
Notwithstanding Clause (1) above, if a Building Permit is issued for the development
within the twelve month period, the Development Permit issued therefore shall not lapse
by virtue of work not having commenced within the statutory minimum development
permit.
6.
If the Subdivision and Development Appeal Board is served with notice of an application
for leave to appeal its decision under Section 688 of the Municipal Government Act, such
notice shall operate to suspend the development permit. Section 688 of the Municipal
Government Act, 1994, provides that:
SDAB-D-08-290
(1)
December 12, 2008
Notwithstanding Section 506, an appeal lies to the Court of Appeal on a question
of law or jurisdiction with respect to:
(a)
(b)
(2)
4
a decision of the Subdivision and Development Appeal Board, and
the Municipal Government Board on a decision on an appeal under
Section 619, an intermunicipal dispute under Division 11 or subdivision
appeal under this Division.
An application for leave to appeal pursuant to subsection (1) must be made to a
judge of the Court of Appeal within 30 days after the issue of the decision sought
to be appealed and notice of the application must be given to:
(a)
(b)
the Municipal Government Board or the Subdivision and Development
Appeal Board; and
any other persons that the judge directs.
(3)
On hearing the application and the representations of those persons who are, in
the opinion of the judge, affected by the application, the judge may grant leave to
appeal if the judge is of the opinion that the appeal involves a question of law of
sufficient importance to merit a further appeal and has a reasonable chance of
success.
(4)
If the judge grants leave to appeal, the judge may
(a)
(b)
(c)
(5)
direct which persons or other bodies must be named as respondents to the
appeal.
specify the questions of law or the questions of jurisdiction to be appealed,
and
make any order as to the costs of the application that the judge considers
appropriate.
If an appeal is from a decision of a Subdivision and Development Appeal Board,
the municipality must be given notice of the application for leave to appeal, and
the board and municipality:
(a)
(b)
are respondents in the application and, if leave is granted in the appeal,
and
are entitled to be represented by counsel at the application and, if leave is
granted, at the appeal.
SDAB-D-08-290
5
December 12, 2008
NOTE:
(1)
When a decision on a development application has been rendered by the
Subdivision and Development Appeal Board, the enforcement of that decision is
carried out by the Development and Inspection Services, Planning and
Development Department, located on the 5th Floor, 10250 – 101 Street,
Edmonton, AB (Telephone: (780) 496-3100).
(2)
When an application is approved and an agreement or caveat is required, the
registration costs are the responsibility of the applicant. These costs must be paid
to the City of Edmonton before the plans and application will be processed.
Ms. L. Parish, Presiding Officer
SUBDIVISION AND DEVELOPMENT
APPEAL BOARD