Calgary Subdivision and Development Appeal Board
P.O. Box 2100, Station M, # 8110,
Calgary, AB T2P 2M5
Email: [email protected]
CALGARY SUBDIVISION AND DEVELOPMENT APPEAL BOARD
Citation: 2015 CGYSDAB 007
Case Name: SDAB2015-0007 (Re)
File No: DP2013-1519
Appeal by:
Alberta Transportation represented by Garry Lamb
Appeal against:
Development Authority of The City of Calgary
Hearing date:
February 12, 2015 and April 02, 2015
Decision date:
April 28, 2015
Board members:
Rick Grol, Chairman
Jo Anne Atkins
Jeff Gilmour
Robert Sipka
Jaydan Tait
DECISION
FILE NO. DP2013-1519
APPEAL NO. SDAB2015-0007
Basis of appeal:
This is an appeal from an approval by the Development Authority for a development
permit made on the application of Collins Development Consultants for a new:
climbing centre; retail and consumer service at 10721 West Valley Road SW.
Description of Application:
The appeal before the Subdivision and Development Appeal Board (Board) deals with
an approval by the Development Authority of a development permit application for a
new climbing centre and retail and consumer service at 10721 West Valley Road SW.
The property is located in the community of Residual Ward 1 – Calgary West and has a
land use designation of DC Direct Control District pursuant to Bylaw 45D2012 in
conjunction with Land Use Bylaw 1P2007.
Adjournment:
On February 12, 2015, the hearing commenced with consideration of procedural issues.
The applicant and property owner of the subject site requested that the Board make a
preliminary and jurisdictional finding that the appellant is not an affected person as
contemplated in section 685(2) of the Municipal Government Act. The Board heard all
parties regarding the applicant’s request but determined that it should hear the merits of
the appeal in order to deal with the preliminary issue raised by the applicant and
property owner and to appropriately adjudicate the appeal. The Board therefore
adjourned the hearing to April 02, 2015 to hear the merits of the appeal and hear from
all parties involved.
Hearing:
The Board heard verbal submissions from:
Andy Orr, Senior Planner with Planning, Development and Assessment Department of
The City of Calgary, representing the Development Authority;
Feisal Lakha, Senior Transportation Engineer with the Transportation Planning
Department with The City of Calgary, on behalf of the Development Authority;
Hanna Oh, lawyer with The City of Calgary Law Department, legal counsel for the
Development Authority;
Christine Nugent, a lawyer with the Province of Alberta, legal counsel for the appellant,
Alberta Transportation, in favour of the appeal;
Garry Lamb, an Engineer with Alberta Transportation, the appellant, and the Project
Sponsor for the Calgary Ring Road Project, in favour of the appeal;
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Lillian Pan, Q.C., of Carscallen LLP, legal counsel for the applicant and 1617819
Alberta Ltd, operating as Rocky Mountain (Calgary Climbing Centre), the property
owner, in opposition to the appeal;
Martin Siddles, a Planner speaking on behalf of the Calgary Climbing Centre, in
opposition to the appeal; and
Walson Tai, representing the Calgary Climbing Centre, in opposition to the appeal.
Summary of Evidence:
The Board report forms part of the evidence presented to the Board. It contains the
Development Authority’s decision respecting the development permit application and
the materials submitted by the Development Authority that pertain to the application.
The Board report further contains the notice of appeal and the documents, materials or
written submissions of the appellant, applicant and any other party to the appeal.
Development Authority’s Submission
At the hearing the Development Authority, Mr. Andy Orr, presented exhibits including
the report, maps, viewgraphs, relaxation table, power point presentation, photographs
of the subject site and surrounding area, relevant sections of the Land Use Bylaw. He
submitted the following [unedited]:
This item is an appeal of advisory comment number 52 associated with
the conditions of approval for DP2013-1519 which was the decision of the
Development Authority to approve an application for new climbing center
with retail and consumer service located at 10721 West Valley Road NW
in the city’s residual ward one location.
An advisory comment on a Development Permit is provided as a courtesy
for information purposes only and is not a condition of approval. The
expansion of the Transportation Utility Corridor (TUC) is a matter
independent of the development permit and the boundary of the TUC
noted by the yellow line on the map which does not currently include any
portion of the site.
The applicant is aware of the advisory comment and has been in
discussions with Alberta Transportation/ Infrastructure regarding this
issue. Any pending new TUC boundary is at this point not recognized on
the parcel or by the Land Use Bylaw. The Development Authority
especially in view of the delays that have occurred with the file was
obligated to process it and make a decision.
All signed and approved DP’s make it clear in a bold warning text in part
that an approved development permit does not relieve an owner or agent
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from any additional requirements including provincial ones that effect the
owner’s land. In view of possible pending expansion of the TUC lands the
applicant is taking on some risks outside of the scope of this development
permit.
The approval of this application is for a use that is specifically identified in
the DC as directed by Council for Bylaw 45D2012 for a climbing center
and uses ancillary to it which is precisely what was approved by the
Development Authority.
There is a specific setback requirement of 39 metres shown by the red line
as well as landscaping provided to the satisfaction of the Development
Authority that has been achieved by the applicant and, in the opinion of
the Development Authority the proposal requires reasonable and minor
relaxations that do not compromise the DC use for the parcel.
The application was therefore approved with the conditions noted in the
Board report.
Upon questioning from the Board, Mr. Orr and Mr. Feisal Lakha, Senior Transportation
Engineer with the Transportation Planning Department, pointed out that the
Transportation Utility Corridor (TUC) boundary is aligned with the land use designation
district in the Land Use Bylaw 1P2007, S-TUC District, but it is clearly separate from the
boundary as it currently exists. To their knowledge, there has been no application made
by the Province of Alberta for a land use re-designation in relation to the boundaries of
the TUC.
Mr. Lakha commented that at the time of this application The City was aware that
Alberta Transportation was reviewing the approved plans for the TUC and that a
redesignation might be required. At the time of the development permit application, it
was recognized that that the proposed plan for expansion of the TUC had no standing
and as such, the subject development permit application was reviewed based on the
relevant policies and guidelines in place. This is where the advisory comment
originated. The City was aware that the Province knew was looking into revising or
adjusting the TUC boundary but it was still a plan under review by The Province at that
time the subject application was approved. The plan itself was not approved and
therefore had no legal standing to be used in determining whether a land use
redesignation application would be necessary.
Ms. Oh, legal counsel for the Development Authority, submitted that the Board does not
have the authority to add this type of condition to this development permit. In her
opinion arguably it is an inappropriate sub-delegation of the Development Authority’s
authority to have this type of condition in the permit as requested by the appellant. She
further asserted that section 6 of the Land Use Bylaw already deals with this and that
despite to a development permit issued under the Land Use Bylaw various provincial
legislation applies.
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Appellant’s Submission
The appellant, Alberta Transportation, submitted in its notice of appeal that Alberta
Transportation/ Alberta Infrastructure currently is actively in discussion with the
landowner regarding the acquisition of its portion of the subject parcel for the expansion
of Stoney Trail and that the acquisition forms part of a larger project that not only
includes the particular parcel but adjacent parcels as well. Approval of the development
permit as it stands would not only prejudice Alberta Transportation’s acquisition of the
right of way required for the completion of said expansion, but the overall project as it
relates to the Transportation Utility Corridor, including the Trans Canada Highway and
West Valley Road.
Ms. Nugent, legal counsel for the appellant and Mr. Lamb, on behalf of Alberta
Transportation, appeared at the hearing and elaborated on the appellant’s position.
Counsel referenced her written submissions. In her opinion the appellant has standing
to file an appeal as Alberta Transportation, through Alberta Infrastructure, is the party
responsible for the TUC. Alberta Transportation is genuinely and relevantly affected by
the proposed development. Alberta Infrastructure controls the TUC and Alberta
Transportation is responsible for the project to construct the roadways and specifically
the completion of Stoney Trail. The TUC is in close proximity to the development site.
She submitted that the proposed development is within 140 metres of the TUC and
highway right of way (ROW) and within 695 metres of the intersection of the
TransCanada Highway and Stoney Trail. Alberta Transportation is in negotiations to
acquire the land necessary for completion of Stoney Trail. The proposed TUC/ROW
would remove the northern portion of the applicant’s development and leave the front of
their building facing the TUC/ROW instead of a parking lot. To permit the development
would then require Alberta Transportation to remove the parking lot and repositioning of
the stormwater management pond at a significant cost.
Counsel submitted that it is the appellant’s position that, regardless of any future plans
for the TUC and how it might change or be expanded and encompass a portion of the
subject development site, due the site’s proximity to the current TUC and the proposed
development being located in the Road Right-of-Way, under the Highways
Development and Protection Act, RSA 2004 c H-8.5, as amended, and the Highways
Development and Protection Regulation, Alta Reg 326/2009, no development can occur
without approval from the Minister in the Road Right-of-Way (section 4). Ms. Nugent
also referenced section 620 of the Municipal Government Act, RSA 2000, c M-26, as
amended, which in her opinion further supports that a permit issued under the
Highways Development and Protection Act will supersede any permit issued by the
Development Authority.
In counsel’s opinion the approved development permit does not remove any obligation
of the developer to comply with other legislation. The appellant submitted that the
development permit, if approved, still cannot proceed without permission from the
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Transportation Minister of the Province of Alberta. Therefore, the appellant requested
that the development permit either be refused or that this advisory comment in the
permit be changed to a permanent condition in the permit and requiring the applicant to
comply with the Highways Development and Protection Regulation before it can
proceed with the development permit.
Upon questions from the Board, Mr. Lamb commented that the applicant will need a
Roadside Development Permit to proceed with any construction of the development on
the site. In his opinion, a Roadside Development Permit would not be granted for this
particular development because they are within the specified distance from a primary
highway (Highway 1 and 201).
Applicant’s and Property Owner’s Submission
The applicant and property owner (for ease of reference herein identified as “the
applicant”), in summary submitted that Alberta Transportation is not a person affected
by the development permit within the meaning of section 685(2) of the Municipal
Government Act. In its opinion Alberta Transportation’s present interest is purely as a
potential future purchaser of a portion of the land and that does not give it standing as a
person affected. If this were the case, then Alberta Transportation in any development
permit granted by the Development Authority would have standing to stop such
development for an indeterminate timeframe because for some future plan of
acquisition.
The applicant pointed out that Alberta Transportation controls the TUC but the subject
land is not within the TUC. In the applicant’s opinion Alberta Transportation’s interest is
purely a financial one in relation to acquiring the land that Alberta Transportation does
not own. It is based on a desire to expand a previously planned and approved
transportation system when there are appropriate legal remedies specifically intended
for this purpose, i.e. expropriation, as well as negotiations to acquire the portion of land
it may need in the future. Alberta Transportation’s argument is based on it becoming a
future purchaser who wants to freeze development of the land after the fact in order to
circumvent potentially paying higher cost to take a portion of the landowner’s property.
The applicant takes the position that the planning process is and must be based on
existing planning issues and that the development permit does not prevent
development under the existing TUC, nor does it prevent the acquisition of land for
potential expansion of the existing TUC. The applicant advised that to date no new or
amended (or expanded) TUC has been approved by the Province of Alberta. The
development permit has already been stalled for a significant period of years by the
Development Authority, in part by waiting for some commentary from Alberta
Transportation.
The applicant submitted that the proposed development complies with the required
setback of 39 metres from the north property line as stipulated in the DC Bylaw. The
applicant asserted that the Land Use Bylaw’s requirement to take into account access
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and transportation is for the purpose of securing appropriate access design and
transportation connections to serve the proposed development and its intensity. It is not
meant to be used to deny legal use through a development permit process for an
existing titled parcel for larger transportation infrastructure that serves more than the
subject site. No offsite transportation improvements were required by the Development
Authority to service the proposed development.
The applicant further referenced the resources it spent and the time delays it was faced
with in obtaining the subject development permit.
The applicant referenced section 6 of the Land Use Bylaw and stated that on this basis
a mandatory requirement in the development regarding a requirement of Provincial
legislation is unnecessary. In the applicant’s opinion the appellant’s arguments could
essentially freeze development on this property for a significant period of time. The
applicant advanced the position that although the Courts have allowed a freeze on
lands such decision must have bases in legislation, either a statutory plan or a bylaw or
other decisions of a municipality in that regard. The applicant has been prejudiced for a
period of time already and they ought not to be further prejudiced by The Province
insisting that a condition, which may be outside of the Board’s jurisdiction, be imposed.
In the applicant’s opinion advisory comment 52 in the permit is proper and appropriate.
Counsel for the applicant opined that concurrent legislation occurs in many instances
and that such permanent condition of a development permit, in her estimation, would
exceed the jurisdiction of the Board.
Decision:
In determining this appeal, the Board:




Complied with the provincial legislation and land use policies, applicable statutory
plans and, subject to variation by the Board, The City of Calgary Land Use Bylaw
1P2007, as amended, and all other relevant City of Calgary Bylaws;
Had regard to the subdivision and development regulations;
Considered all the relevant planning evidence presented at the hearing and the
arguments made; and
Considered the circumstances and merits of the application.
1. The appeal is denied and the decision of the Development Authority is upheld.
2. The development permit shall be issued as approved by the Development
Authority.
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Reasons:
1 The Board considered the written, verbal, and photographic evidence submitted, and
notes that the appeal pertains to the Development Authority’s approval of a
development permit for a new climbing centre and retail and consumer service at 10721
West Valley Road SW. The property has a land use designation of DC Direct Control
District pursuant to Bylaw 45D2012 in conjunction with Land Use Bylaw 1P2007.
Application
2 The application is for development approval for a new climbing centre (called Calgary
Climbing Centre) and retail and consumer service at the subject parcel of land located
at West Valley Road SW which runs parallel to the Trans Canada Highway.
Development Permit
3 The Development Authority approved the proposed development and development
permit with conditions of approval. The conditions of approval include an advisory
comment number 52, which states:
52.
Future expansion of Stoney Trail may result in land acquisition from the
subject parcel. For further information, please contact Alberta
Transportation.
Legislative Framework
4 The Board has particular regard to the following sections of the Municipal
Government Act, among others:
Section 617 states:
Purpose of this Part
617 The purpose of this Part and the regulations and bylaws under this Part is to provide
means whereby plans and related matters may be prepared and adopted
(a)
to achieve the orderly, economical and beneficial development, use of land and
patterns of human settlement, and
(b)
to maintain and improve the quality of the physical environment within which
patterns of human settlement are situated in Alberta,
without infringing on the rights of individuals for any public interest except to the extent
that is necessary for the overall greater public interest.
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Section 620 states:
Conditions prevail
620 A condition of a licence, permit, approval or other authorization granted pursuant to
an enactment by the Lieutenant Governor in Council, a Minister, a Provincial agency or
Crown-controlled organization as defined in the Financial Administration Act or a
delegated person as defined in Schedule 10 to the Government Organization Act prevails
over any condition of a development permit that conflicts with it.
Section 640(1) states:
Land use bylaw
640(1) A land use bylaw may prohibit or regulate and control the use and development
of land and buildings in a municipality.
Section 641(4) states:
(4) Despite section 685, if a decision with respect to a development permit application in
respect of a direct control district
(a) is made by a council, there is no appeal to the subdivision and development
appeal board, or
(b) is made by a development authority, the appeal is limited to whether the
development authority followed the directions of council, and if the
subdivision and development appeal board finds that the development
authority did not follow the directions it may, in accordance with the
directions, substitute its decision for the development authority’s decision.
Section 685 states, in part:
Grounds for appeal
685(1) If a development authority
(a) fails or refuses to issue a development permit to a person,
(b)
issues a development permit subject to conditions, or
(c) issues an order under section 645,
the person applying for the permit or affected by the order under section 645 may appeal
to the subdivision and development appeal board.
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(2) In addition to an applicant under subsection (1), any person affected by an order,
decision or development permit made or issued by a development authority may appeal
to the subdivision and development appeal board.
(3) […]
5 The Board has regard to the following sections of Land Use Bylaw 1P2007, among
others:
Section 6 states:
Requirements of Other Legislation
6
Compliance with this Bylaw does not exempt any person from the
requirements of any Federal, Provincial or Municipal legislation, approval
process, licensing or permitting regime, or other Bylaw.
Section 22 states:
Reference to Other Bylaws in Direct Control Bylaws
22
(1)
(2)
Where a parcel is designated with a Direct Control District:
(a)
pursuant to this Bylaw, a reference to a section of Part of
this Bylaw within the Direct Control Bylaw is deemed to be
a reference to the section on June 8, 2014, unless the
Direct Control District referred to Part 10 of this Bylaw as of
the effective date of the Direct Control District Bylaw;
(b)
pursuant to this Bylaw, a reference to a section of any Part
other than Part 10 of this Bylaw within the Direct Control
Bylaw is deemed to be a reference to the section as
amended from time to time, unless a contrary intent is
stated in the Direct Control Bylaw; and
(c)
pursuant to a previous land use bylaw and such
designation is continued pursuant to this Bylaw, the Direct
Control Bylaw, as approved by Council at the time such
designation was made, will continue to apply, unless a
contrary intent is set out in the Bylaw designating the
parcel Direct Control.
Direct Control Bylaws that were passed pursuant to previous land
use bylaws and are denoted on the Land Use District Maps:
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(a)
are hereby incorporated into and form part of this Bylaw as
if repeated herein at length; and
(b)
notwithstanding the definitions contained in this Bylaw,
each Direct Control Bylaw must assume only those
meanings for the terms contained therein that were
intended at the date of the original passage.
Section 35 states:
Discretionary Use Development Permit Application
35
When making a decision on a development permit for a discretionary
use the Development Authority must take into account:
(a)
any plans and policies affecting the parcel;
(b)
the purpose statements in the applicable land use district;
(c)
the appropriateness of the location and parcel for the
proposed development;
(d)
the compatibility and impact of the proposed
development with respect to adjacent development and
the neighbourhood;
(e)
the merits of the proposed development;
(f)
the servicing requirements;
(g)
access and transportation requirements;
(h)
vehicle and pedestrian circulation within the parcel;
(i)
the impact on the public transit system; and
(j)
sound planning principles.
6 The Board has particular regard to Direct Control Bylaw 45D2012 (DC Bylaw).
Pursuant to the DC Bylaw “Climbing Centre” is a discretionary use in the DC District.
7 The Board has regard to the applicable Area Structure Plan.
8 The Board has regard to the Highways Development and Protection Regulation.
Section 4 of this regulation states:
Permit required for development, display of equipment
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4(1) No person shall, without a permit, commence a development or display
equipment or cause a development to be commenced or equipment to be
displayed,
(a)
(b)
(c)
(d)
(2)
in the case of a freeway,
(i)
within the right of way or within 300 metres beyond
the limit of the freeway, or
(ii)
within 800 metres from the centre point of the
intersection of the freeway and another highway,
in the case of a multi-lane provincial highway other than a
freeway,
(i)
within the right of way or within 300 metres beyond
the limit of the highway, or
(ii)
within 800 metres from the centre point of the
intersection of the highway and another highway,
in the case of a major provincial highway,
(i)
within the right of way or within 300 metres beyond
the limit of the highway, or
(ii)
within 800 metres from the centre point of the
intersection of the highway and another highway,
or
in the case of a minor provincial highway,
(i)
within the right of way or within 150 metres beyond
the limit of the highway, or
(ii)
within 400 metres from the centre point of the
intersection of the highway and another highway that
is not a freeway, a multi-lane provincial highway or a
major provincial highway.
Subsection (1) does not apply to a wire fence that is located or
to be located outside the right of way of the highway.
Facts
9 In August 2011 the owner purchased the parcel that is the subject of the proposed
development.
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10 In October 2011 an application for land use re-designation for the parcel was made.
11 On October 2012 City Council passed the aforementioned DC Bylaw.
12 In March 2013 the pre-application process was completed with The City of Calgary
regarding the proposed development.
13 On March 06, 2013 Mr. Jerry Lay on behalf of Alberta Transportation via email
advised Mr. Walson Tai of the property owner (Calgary Climbing Centre) that they
“have reviewed the development application and have no objections to the plans. At this
time we do not foresee additional land requirements for future expansion of Highway 1.”
14 On April 12, 2013 the applicant made the application for a development permit
DP2013-1519 for the proposed development.
15 On January 07, 2015 the Development Authority approved the subject development
permit for the proposed development.
16 On January 27, 2015 Alberta Transportation appealed the approval of the subject
development permit.
17 The Board accepts these facts for the purpose of the appeal and application.
18 The Board acknowledges all submissions (written and oral) of the appellant,
applicant, and the Development Authority, and in rendering this decision has regard to
all the submissions, including but not limited to the written submissions and
correspondence received and contained in the Board report. The Board considered all
relevant evidence and arguments.
19 The Board reviewed the proposed development having regard to, among other
things, the applicable legislation, plans and policies, sound planning considerations, the
merits of the application, the circumstances of the case and the evidence presented.
Board’s Jurisdiction
20 In terms of the Board’s jurisdiction respecting to section 641(4)(b) of the Municipal
Government Act, the Board notes the following:
21 The Board reviewed the textbook: Frederick A. Laux, Q.C., Planning Law and
Practice in Alberta (3rd ed., looseleaf), (Edmonton: Juriliber, 2002), regarding the
Board’s jurisdiction respecting a direct control district, which states at pages 6-44 to 645:
Unfortunately, s.641 is somewhat unclear in that it fails to adequately address the
cases where a development permit application is decided by a development
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authority, but the directions of council in the direct control bylaw or resolution are
incomplete, ambiguous or, as in many cases, confer discretion on the
development authority in respect of one or more elements of a development
project. In the writer’s view there exists a right of appeal on the part of either the
developer or other affected persons, including objecting neighbours, and the
appeal board has the power to substitute what it believes to be the appropriate
decision having regard to the merits of the case, but only in respect of those
matters that council has not clearly addressed. If the case involves an ambiguous
direction of council, it neatly fits into s. 641(4)(b) since there is a live issue of
whether council’s directions have been followed.173 Thus, for example, if the
appeal board finds that council meant Y and not X, as the development authority
had ruled, the board is entitled to vary the decision accordingly.174
Where council has exercised less than complete direct control over a specific site
that is the subject of a permit application, either because it has remained silent
on some material particulars or because it has left the development authority with
a discretion, a literal interpretation of s. 641(4)(b) might suggest there is no right
of appeal. However, a purposive approach to interpreting Pt. 17 of the Municipal
Government Act leads to the conclusion that a right of appeal on the permits of
the development does exist. Where council has left gaps or conferred a
discretion, it in fact has not exercised direct control over that element.
Consequently, the rules pertaining to appeals in non-direct control districts should
apply to the extent that true direct control has not been utilized. It follows that in
those circumstances the panoply of appeal rights and powers set forth in ss. 684
to 687 should apply.175
And later at page 10-42:
The Act authorizes a subdivision and development appeal board to confirm,
revoke or vary any decision of a development authority, any development permit
or any condition attached to either, or to make or substitute any decision or
permit of its own.225 Thus, where an appeal is properly before it, a board has the
same plenary power over the matter as did the planning authority whose decision
is under appeal.227 […]
22 In rendering its decision, the Board takes into consideration the purposive and
contextual approach to the interpretation of the Bylaw. The Board reviewed the purpose
of the Bylaw and used a broad and purposive approach to interpreting the Bylaw
consistent with the Supreme Court of Canada’s approach to statutory interpretation as
confirmed in United Taxi v. Calgary, [2004] 1 SCR 485, 2004 SCC 19, at paras 6-8, and
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 SCR 559, 2002 SCC 42, at para.
26, and R. ex rel Merk v. International Association of Bridge, Structural, Ornamental
and Reinforcing Iron Workers, Local 771, [2005] 3 SCR 425, 2005 SCC 70 (SCC.), at
para 18, which latter cases emphasizes that the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament. The contextual
approach requires that the words chosen must be assessed in the entire context in
which they have been used. The words must be given their plain and ordinary meaning
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as the context requires. The Alberta Court of Appeal has adopted this approach in
many cases: Love v. Flagstaff (County of) Subdivision and Development Appeal Board,
2002 ABCA 292, at paras 19-21 and Desaulniers v. Clearwater (County), 2007 ABCA
71, at para 52. This approach is also consistent with section 10 of the Interpretation Act,
RSA 2000, c I-8, which provides that every provincial enactment shall be given a fair,
large and liberal construction and interpretation that best ensures the attainment of its
objects.
23 In addition, the Board takes into account the express wording of the DC Bylaw and
Land Use Bylaw 1P2007 itself. Pursuant to section 10(1)(c) of Land Use Bylaw 1P2007
the words must be given their plain and ordinary meaning as the context requires. For
the determination of the plain and ordinary meaning of the words used in the Bylaw the
Board further considered generally accepted dictionaries.
24 Pursuant to Land Use Bylaw 1P2007, Direct Control Districts are part of Land Use
Bylaw 1P2007.
25 DC Bylaws of The City of Calgary are typically a hybrid between complete
development control over a site in the Direct Control District and the rules of the Land
Use Bylaw. The DC Bylaws often provide that the Development Authority is given
discretion either with respect to the discretionary uses of a proposed development or
with respect to development standards, or both, except where expressly stipulated
otherwise. Generally DC Bylaws of The City of Calgary Council do not dictate complete
control over a specific site that is the subject of a development permit application and
generally the Development Authority is granted discretion.
26 Pursuant to section 2 of the DC Bylaw unless otherwise specified in this Bylaw, the
rules and provisions of Parts 1, 2, 3 and 4 of Bylaw 1P2007 apply to the subject Direct
Control District that governs the subject parcel.
27 In this case, the express directions of The City of Calgary Council in the DC Bylaw
are limited to: (a) the addition of specific discretionary uses in the DC District in addition
to the use of “Climbing Centre” within the building used for the “Climbing Centre”
(section 6(1) and (2)); (b) adding some other additional specific discretionary uses
(section 6(3)); (c) building height (section 7.1) and front setbacks (sections 7.2 and 7.3)
to provide restrictions to the use of “Retail and Consumer Service” (section 8).
28 To the extent that Council did not provide directions to the Development Authority in
the subject DC Bylaw, the provisions of Parts 1-4 and the S-R District of Land Use
Bylaw 1P2007 apply. This is expressly specified in sections 2 and 7 of the DC Bylaw.
29 The Board notes that the development is a discretionary use. Council has conferred
a discretion on the Development Authority over the use. Therefore, the development
permit application can either be granted or refused on the basis of sound planning
considerations.
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30 Where the DC Bylaw and Land Use Bylaw 1P2007 have given discretion to the
Development Authority, the Board upon appeal re-exercises the same discretion. In
this regard the Board agrees with Laux, as quoted above. This is in accordance with
how the Board consistently exercises its powers pursuant to section 687(3) and 641(4)
of the Municipal Government Act.
31 The Board’s role under section 641(4) of the Act is to determine whether the
Development Authority followed the directions of Council, and if not, to substitute its
decision for the Development Authority’s decision. In order to fulfill its obligations, the
Board must first determine what the intention of Council was in passing the DC Bylaw.
Then, having determined the intention of Council, the Board will review the
Development Authority’s decision to determine if it followed the intentions of Council as
set out in the DC Bylaw. If the Board determines that the Development Authority has
followed the directions of Council, the matter is at an end. If the Board concludes that
the Development Authority has not followed the directions of Council, it may exercise
the discretion to produce a decision in accordance with the directions of Council as per
the DC Bylaw.
32 Based on purposive and contextual interpretation of the DC Bylaw and the plain and
ordinary meaning of the words in this Bylaw, and having regard to aforementioned
factors, the Board finds that it in this case has jurisdiction to deal with all the merits of
the appeal and the development permit application insofar they are relevant and based
on sound planning considerations. Therefore section 35 of Land Use Bylaw 1P2007
applies equally to the Board. Moreover, when determining an appeal the Board
pursuant to section 687(3)(a.1) of the Municipal Government Act must comply with the
land use bylaw in effect (subject to the Board’s relaxation authority pursuant to section
687(3)(d)).
Council’s Intent
33 Pursuant to section 1 of the DC Bylaw the Direct Control District, as per Council
direction, is intended to: (a) accommodate a range of indoor and outdoor recreation
uses as well as adding the use of “Climbing Centre” and (b) accommodate a limited
range of size of ancillary uses to support the “Climbing Centre”. Section 7.2 mandates
that the front setback area must have a minimum depth of 39 metres and motor vehicle
parking stalls are allowed within this area.
Analysis
Main Issue of the Appeal
34 The main issues of the appeal are: (1) Is the appellant, Alberta Transportation, an
affected person as contemplated by section 685(2) of the Act? and (2) Is it appropriate
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to include a permanent condition in the development permit as requested by the
appellant or to otherwise limit the applicant’s proposed development?
Issue One
35 With respect issue one, the Board considered the following case law: Re Clarendon
Development Ltd. (1965), 51 M.P.R. 108, 50 D.L.R (2d) 521 (N.S.C.A.); Re Actus
Management Ltd v. Calgary (City) [1975] 6 W.W.R. 739, 62 D.L.R. (3d) 421 (Alta. C.A.);
Bowen v. Edmonton (1977), 2 Alta. L.R (2d) 112, 3 A.R. 63, 75 D.L.R. (3d) 131 (C.A.);
and Pension Fund Properties Ltd. v. Calgary (City) (1981), M.P.L.R. 193, 127 D.L.R (3),
477, 31 A.R. 66 (C.A).
36 The case law indicates that the meaning of the words “person affected” in the Act
connotes a degree of effect from a development permit approval which is greater than
on the average person (Re Clarendon Development Ltd.), a person who is “injuriously
affected” (same case) or a person who is “genuinely and relevantly affected” (Bowen v.
Edmonton) and not an “apparent busybody” (Re Actus Management Ltd. v. Calgary
(City). The Court in Pension Fund Properties Ltd. v. Calgary (City) at para 14 held that
an affected person is not someone who lives miles away and only occasionally visits,
walks or drives by the subject development and that the notice requirements of the Act
“[…] demonstrate the impractically of deciding the Legislature intended every resident
of Calgary who occasionally walks the Mall is ipso facto “a person affected” and thus
has a right of appeal.”
37 A person, as referred to in section 685(2), other than an applicant must establish
that he or she is affected by the Development Authority’s decision regarding a
development permit. The Board finds that a “person” as contemplated in section 685(2)
includes a corporation, association, society or governmental agency. Alberta
Transportation is a provincial agency. The Board, however, notes that the word
“affected” in this regard is not defined in the Act. In the Board’s opinion this word is
capable of having a broad meaning. The above mentioned case law dealt with this
issue and provided guidance regarding when a person will be considered “affected”. In
the Board’s view the same applies to a person as referred to in section 687(1)(d) of the
Act as the same word is used. Section 687(1)(d) provides that persons that claim to be
affected by an order, decision or permit can be heard by the Board at the hearing
respecting an appeal provided the Board agrees to hear from them.
38 The Board notes that the proposed development and parcel of land that is the
subject of the development is located within 800 metres of the centre point of the
intersection of Highway 1 (Trans Canada Highway) and Highway 201 (Stoney Trail) and
within the 300 metre highway right of way (ROW), as referred to in the Highways
Development and Protection Regulation. The proposed development is currently not
located within the existing TUC. The TUC is under the control of Alberta Transportation
through Alberta Infrastructure. The development is situated within 300 metres of the
existing TUC. More specific, the proposed development is within 140 metres of the
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existing TUC and within 695 metres of the intersection of the TransCanada Highway
and Stoney Trail.
39 The evidence indicates that in the future the front portion of the parcel (the parking
lot and storm water pond, approximately 35 metres of front portion) of the proposed
development will be required for the expanded TUC.
40 The Board finds it significant that the Development Authority circulated the
application to Alberta Transportation for comments (indicated in the correspondence
contained on pages 68–74 of the Board report) before it rendered a decision regarding
the development permit. Therefore the Development Authority deemed the appellant to
be affected by the development permit application. Procedurally it is logical that such
party then subsequently would have standing as an appellant or affected person before
the Board. In the Board’s opinion the appellant has sufficiently established that due to
the proximity of the proposed development to the existing TUC, being in the highway
road right of way and the parcel being located within 800 metres of the Trans Canada
Highway and Stoney Trail, it may be affected by the proposed development.
41 The Board thus finds that the appellant is an affected person as contemplated by
section 685(5) of the Act, but this does not mean that the appeal in itself has merit.
42 Next the Board deals with issue two which in essence is the merits of the appeal.
Issue Two
43 This issue centers on the applicability of provincial legislation in addition to a
development permit for a proposed development that has been approved pursuant to
the Land Use Bylaw and whether it is necessary to include a permanent condition in the
development permit to that effect. The appellant seeks the relief that either the
development permit be quashed or that a permanent condition is imposed in the permit
requiring the applicant to comply with the Highways Development and Protection
Regulation before it can proceed with the development.
44 The Development Authority stated that The City of Calgary was aware that Alberta
Transportation was reviewing the boundaries and plans for the TUC and that a redesignation of the TUC may be required. The Development Authority pointed out that
at the time of the development permit application, the Development Authority
recognized that that proposed plans for the revising or adjusting of the TUC boundary
had no legal status and as such the subject development permit application was
reviewed by the Development Authority based on the relevant policies and guidelines in
place.
45 The Development Authority and applicant acknowledge that the front of the parcel in
the future may be required for expansion of the TUC in the future but both pointed out
that legally there is no approved provincial plan for the expansion in place.
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46 The applicant submitted a press release indicating that the Province has decided to
“delay completion of Calgary’s ring road’s final segment until 2024 or 2025.”
47 The applicant further submitted that the planning process is and must be based on
existing planning issues and that the development permit does not prevent
development under the existing TUC, nor does it prevent the acquisition of land for
potential expansion of the existing TUC. The applicant advised that to date no new or
amended (or expanded) TUC has been approved by the Province of Alberta. Further
the applicant referenced the email dated March 06, 2013 (page 188 of the Board report)
that Alberta Transportation advised the property owner that it had no objection to the
proposed development.
48 At the hearing Mr. Lamb representing Alberta Transportation stated that it has
become apparent to their department that the proposed interchange at Valley Ridge
and the Trans Canada Highway and the road structure between that interchange and
Stoney Trail would require substantially more infrastructure and would require the
acquisition of land on the south side of the Trans Canada Highway and the removal of
West Valley Road, which is the frontage road that the subject development is
accessing. He advised that since the date of the email Alberta Transportation has
updated the plans for the expansion of the TUC and that the responsible Minster has
approved these plans.
49 Upon questioning from the Board, Mr. Lamb, however, admitted that the updated
TUC plan needs to be approved by an Order in Council and that such has not
happened yet. He further stated that he has budget for the acquisition of the land but
that the acquisition of the applicant’s land, and how much of this land would be
required, is related to the acquisition of other parcels of land required from other
landowners in the vicinity.
50 Under Alberta law a property owner has the right to develop his or her land in
accordance with the Land Use Bylaw and applicable plans and policies.
51 There is no evidence that the proposed development is contrary to any applicable
statutory plan as referred to in the Municipal Government Act.
52 According to section 617 of the Municipal Government Act the purpose of Part 17 of
the Act and the regulations and bylaws under Part 17 is to provide means whereby
plans and related matters may be prepared and adopted (a) to achieve the orderly,
economical and beneficial development, use of land and patterns of human settlement,
and (b) to maintain and improve the quality of the physical environment within which
patterns of human settlement are situated in Alberta, without infringing on the rights of
individuals for any public interest except to the extent that is necessary for the overall
greater public interest. Statutory plans and the Land Use Bylaw are established in
furtherance of the objectives of the Act.
53 Having regard to sections 617 and 640(1) of the Municipal Government Act, the Act
strikes a balance between a land use bylaw – which may prohibit or regulate and
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control the use and development of land and buildings in a municipality – without
infringing on the rights of individuals to the extent that it is necessary for the overall
greater public interest, and the rights of a property owner to develop his or her land. In
the Board’s opinion this is a factor to be considered regarding the scope of the
Development Authority’s and Board’s power to review development permit applications
and impose conditions in development permits.
54 Important is that the Land Use Bylaw and DC Bylaw specifically allows for the
proposed development and use on the subject parcel albeit subject to a discretionary
use development permit.
55 The Board finds that the appellant did not raise significant planning objections
against the proposed development. It did not argue that the development would be
incompatible with the adjacent developments or with the TUC or that the development
otherwise from a planning perspective would be inappropriate for the location. The
evidence indicates that the building of the proposed development, the new Climbing
Centre, would not be affected by the appellant’s plans for the proposed updated TUC.
Only the parking area of the development would be affected. While the access to the
appellant’s development may change and that the front portion of the applicant’s parcel
of land is required for the expanded TUC, material is that the final configuration of the
updated TUC and associated access roads for the adjacent developments, including
the proposed development, has not been formalized by a provincial enactment. Under
the scheme of the Municipal Government Act, statutory plans and the Land Use Bylaw
provide the regulatory legal framework which uses and developments are allowed for
parcels of land. Property owners, developers and applicants for development permit
applications are entitled to rely on this framework for planning development of their
land.
56 The applicant neither provided sufficient evidence nor was able to point out that the
Development Authority erred in following the directions of Council as set out in the DC
Bylaw.
57 The Board notes that the proposed development in all aspects is in accordance with
the provisions of the DC Bylaw. The development complies with the minimum front
setback of 39 metres from the front property line.
58 Under the scheme of the Municipal Government Act the power for the Development
Authority to impose conditions in a development permit must be rooted in the Land Use
Bylaw. Pursuant to section 37 of Land Use Bylaw 1P2007 regarding a development
permit for a discretionary use the Development Authority may impose the conditions
specifically enumerated in section 38 of the Bylaw. The proposed development is a
discretionary use. Pursuant to section 38(1) conditions in a permit may be imposed in
furtherance of sound planning principles.
59 The Board notes that the Land Use Bylaw contains section 6. Pursuant to section 6
of the Bylaw compliance with this Bylaw does not exempt any person from the
requirements of any Federal, Provincial or Municipal legislation, approval process,
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licensing or permitting regime, or other Bylaw. It is of significance that the Development
Authority pointed out that each development permit contains a specific cautionary
statement which states:
This permit does not relieve the owner of the owner’s authorized agent
from full compliance with the requirements of any federal, provincial or
other municipal legislation or the terms and conditions of any easement,
covenant building scheme or agreement affecting the building or land.
60 The applicant acknowledges they are aware of that regarding their proposed
development the Highways Development and Protection Regulation may apply in
concurrence with the approved development permit issued under the Land Use Bylaw.
The applicant further acknowledges that changes to the development and development
permit may be required as a result of an updated approved TUC and it is prepared to
deal with that if that happens.
61 In the Board’s opinion the issue raised by the appellant about other provincial
legislation affecting a development permit is no different than the requirements of the
Alberta Building Code under the Safety Codes Act, RSA 2000, c S-1, as amended. For
example under the scheme of the Municipal Government Act and a land use bylaw, and
its operations, neither the Development Authority nor the Board has jurisdiction
regarding Building Code issues pertaining to developments. Pursuant to the Alberta
Building Code, which is enacted under the Safety Codes Act, a building permit may be
required for a proposed development notwithstanding that the Development Authority
pursuant to the Land Use Bylaw issues a development permit. That is provincial
legislation that also governs development separate from the requirements of the Land
Use Bylaw and Part 17 of the Municipal Government Act that empowers the
Development Authority to issue development permits. That is a matter of concurrent
legislation in effect.
62 That is not to say that there never can be issues that would fall under other
provincial legislation but at the same time may have related planning consequences,
implications, are planning related or are in the furtherance of planning principles. To
that extent the Development Authority may impose conditions in a development permit
for a discretionary use as long as the conditions are based on legitimate planning
considerations, must achieve planning objectives and must not amount to a
subdelegation of the Development Authority’s discretionary power. The Board’s power
to impose conditions stems from section 687(3)(c) of the Act; however there are
limitations to the Board’s authority as well. Laux describes these situations in his book
and the Board agrees with him in this regard.
63 With respect to section 620 of the Municipal Government Act, the Board notes the
following. Pursuant to section 620 a condition of a licence, permit, approval or other
authorization granted pursuant to an enactment by the Lieutenant Governor in Council,
a Minister, a Provincial agency or Crown-controlled organization as defined in the
Financial Administration Act or a delegated person as defined in Schedule 10 to the
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Government Organization Act prevails over any condition of a development permit that
conflicts with it.
64 The Board finds that in this case there is no conflict. Each Act stands on its own, is
distinct and has its own purpose. All section 620 says is that if a condition of a
development permit conflicts with an enactment by the Lieutenant Governor in Council,
a Minister, a Provincial agency or Crown-controlled organization a condition of a
licence, permit, approval or other authorization granted pursuant to an enactment
prevails.
65 Neither the Development Authority nor the Board has jurisdiction regarding issues
that fall under the Highways Development and Protection Act and Highways
Development and Protection Regulation.
66 In the Board’s opinion the Highways Development and Protection Regulation and
Highways Development and Protection Act provides the appellant with sufficient means
to pursue its interest. There is no need to insert a condition in a development permit
that under other applicable legislation is available to the appellant in any event.
67 It is of significance that the Development Authority circulated the application to
Alberta Transportation for comments (indicated in the correspondence contained on
pages 68–74 of the Board report) before it rendered a decision regarding the
development permit. At that time the appellant specifically stated it had no objections to
the proposed development permit application and plans.
68 The Board places weight on the fact that the applicant has pursued a development
permit for its developments since it purchased the property in 2011 and spent
considerable time, efforts and resources to obtain a development permit. To date the
application has been in process for two years. That is a significant amount of time on
development radar. It may take years before the appellant is able to secure the land
required for the expansion of the TUC either through negotiated acquisition or
expropriation. In the Board’s opinion, it would be unfair that a property owner that
whishes to develop its land is left with uncertainty as a result of the appellant’s
undertakings. Under the scheme of the Act and a land use bylaw, and its operations, it
is expected that development permit applications are processed as expeditiously as
possible. In the Board’s view that is underscored by section 684 of the Act.
69 The Board, in weighing the evidence, finds that the interest of the appellant in
advancing the appeal are primarily driven by the land acquisition issues related to the
proposed expansion of the TUC.
70 In the Board’s opinion, there is no need to include a permanent condition in the
development permit as sought by the appellant. Section 6 of the Land Use Bylaw gives
the appellant sufficient recourse.
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71 The Board, based on the evidence finds that the so-called updated plans of Alberta
Transportation for the TUC have legally not sufficiently crystallized to the extent that
based on sound planning and transportation rationale changes would be warranted to
the proposed development or that would justify quashing the development permit
entirely. There is no official enactment of the Lieutenant Governor in Council, a Minister
or a Provincial agency regarding the expansion of the TUC in place. There is no
application by the appellant for a land use re-designation of the TUC in relation to the
applicant’s parcel of land and any other parcels of land affected by the provincial
updated configuration of the highways or roads under control of the Province. The relief
sought by the appellant would be tantamount to a de facto freeze of the applicant’s
development. The Courts have determined that government can freeze development
but it must be based on legally approved statutory plans or bylaws established under
applicable planning legislation. In weighing the evidence, the Board finds that the
appellant’s plans for the expansion of the TUC are too uncertain to limit the appellant’s
proposed development from a planning perspective at this point in time.
72 According to the Development Authority the application requires some minor
variances of Land Use Bylaw 1P2007. The appellant did not raise objections regarding
the required relaxations for the development. There is no need to deal with them
specifically. Insofar as the proposed development requires any relaxations of the Land
Use Bylaw there is no evidence of established negative impact from such relaxations.
73 Accordingly, pursuant to section 687(3)(d) of the Municipal Government Act, the
Board finds that the proposed development would not unduly interfere with the
amenities of the neighbourhood, or materially interfere with or affect the use or
enjoyment of neighbouring parcels of land
74 Pursuant to section 641(4) of the Municipal Government Act the Board finds that the
Development Authority did follow the directions of Council as set forth in the DC Bylaw.
75 In reviewing and weighing all the evidence, the Board therefore finds that the
proposed development does warrant approval.
Conclusion
76 For the above reasons the Board denies the appeal and upholds the decision of the
Development Authority.
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77 Therefore the development permit shall be issued as approved by the Development
Authority.
___________________________________
Rick Grol, Chairman
Subdivision and Development Appeal Board
Issued on this 28th day of April, 2015
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