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 014
Case Name:
SDAB2015-0014 (Re)
File No:
DP2014-4729
Appeal by:
John Eastwood
Appeal against:
Development Authority of The City of Calgary
Hearing date:
February 26, 2015 and March 12, 2015
Decision date:
March 18, 2015
Board Members:
Rick Grol, Chairman
Kerry Armstrong
Jo Anne Atkins
Katherine Camarta
Joshua Selby
Jaydan Tait
DECISION
FILE NO. DP2014-4729
APPEAL NO. SDAB2015-0014
Basis of appeal:
This is an appeal from a refusal by the Development Authority for a development permit
made on the application of Lee & Kong for a relaxation: air conditioning equipment
(existing) – projection into side setback area, change of use: semi-detached
dwelling (north unit) at 2239 32 Street SW.
Description of Application:
The appeal before the Subdivision and Development Appeal Board (Board) deals with a
refusal by the Development Authority of a development permit application for a
relaxation: air conditioning equipment (existing) – projection into side setback area,
change of use: semi-detached dwelling (north unit) at 2239 32 Street SW. The property
is located in the community of Killarney/ Glengarry and has a land use designation of
Residential – Contextual One/Two Dwelling (R-C2) District.
Adjournment:
On February 26, 2015, the hearing commenced with consideration of procedural issues.
The Board adjourned the hearing to March 12, 2015 with consent of all parties involved.
Preliminary Issue:
The Board dealt with the preliminary issue of whether or not the appeal was submitted
within the legislated time period, as prescribed under the Municipal Government Act,
RSA 2000, c M -26, as amended.
Hearing:
The Board heard verbal submissions from:
John Eastwood, the appellant and co-owner of the subject property, in favour of 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 any documents, materials or
written submissions of the appellant, applicant and any other party to the appeal.
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APPEAL NO. SDAB2015-0014
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.
The appeal is struck
Reasons:
1 The Board considered the written, verbal, and photographic evidence submitted, and
notes that the appeal pertains to the Development Authority’s refusal of a development
permit for a relaxation for air conditioning equipment (existing) – projection into side
setback area, regarding a detached dwelling (north unit) at 2239 32 Street SW. The
property is located in the community of Killarney/ Glengarry and has a land use
designation of Residential – Contextual One/Two Dwelling (R-C2) District pursuant to
Land Use Bylaw 1P2007.
2 The Board first deals with the preliminary issue of whether the appeal was submitted
within the legislated time period as prescribed under the Municipal Government Act,
RSA 2000, c M-26, as amended.
Legislative Framework
3 The Board has regard to the following sections of the Municipal Government Act:
Section 685 states:
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,
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APPEAL NO. SDAB2015-0014
the person applying for the permit or affected by the order under section 645 may appeal
to the subdivision and development appeal board.
(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) […]
Section 686(1) states:
Appeals
686(1) A development appeal to a subdivision and development appeal board is
commenced by filing a notice of the appeal, containing reasons, with the board within 14
days,
(a) in the case of an appeal made by a person referred to in section 685(1), after
(i)
the date on which the person is notified of the order or decision or the
issuance of the development permit, or
(ii) if no decision is made with respect to the application within the 40-day
period or within any extension under section 684, the date the period or
extension expires,
or
(b)
in the case of an appeal made by a person referred to in section 685(2), after the
date on which the notice of the issuance of the permit was given in accordance
with the land use bylaw.
4 The Board has regard to the following section of Land Use Bylaw 1P2007:
Section 26 states:
Development Permit Application Requirements
26
(1)
Any owner of a parcel, his authorized agent, or other persons having
legal or equitable interest in the parcel may apply to the General
Manager for a development permit.
(2)
An application for a development permit must be made on an
application form approved by the General Manager and be submitted
with the fee for an application as prescribed by resolution of Council.
(3)
An applicant for a development permit must provide such
information as may be required by the Development Authority to
evaluate the application.
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Appellant’s Submission
5 Mr. John E. Eastwood, the appellant who is one of the current owners of the subject
property, submitted that they purchased the subject property on July 25, 2014 and that
unbeknownst to them the seller in October 2014 applied for a relaxation for the existing
air conditioner on the property. On January 20, 2015 they became aware of the refusal
of the application and then filed an appeal with the Board against the Development
Authority’s refusal of the application. They question whether the previous owner even
had the right to apply for the development relaxation after the property had been sold
and the Title was transferred. The appellant requested that the Board decides that the
14 day appeal period should commence on January 20, 2015 when they first became
aware of the refusal of the application.
Analysis
6 On October 01, 2014 the law firm Lee & Kong, the applicant, made the subject
development permit application. The notification letter dated December 31, 2014 of the
Development Authority’s refusal of the development permit application was sent to the
applicant via registered mail. The letter was signed for by Suzanne Yen Lee on January
07, 2015.
7 The subject property was sold to Mr. John E. Eastwood and Ms. Jennifer Marie
Stefnik. The sale closed on July 25, 2014 and the property Title was transferred to Mr.
Eastwood and Ms. Stefnik on August 07, 2014. According to appellant there was no
disclosure about the air conditioning equipment requiring a relaxation or development
permit. The only thing that mentioned in the contract was that the Real Property Report
needed to be updated regarding a fence erected on the north side of the property.
8 Therefore, the Board, based on the evidence, finds that the previous owners had no
legal or equitable interest in the property when the application was made. In the
Board’s opinion one cannot conclude that because a law firm makes an application as
an agent on behalf of a previous property owner automatically there is a legal or
equitable interest in the parcel. Given the fact that the Title had transferred, the
Development Authority should at least have asked the applicant what the alleged legal
or equitable interest of the previous owner in the parcel was.
9 Pursuant to section 685(1)(a) of the Municipal Government Act if a development
authority refuses to issue a development permit to a person, the person applying for the
permit or affected by the order under section 645 may appeal to the subdivision and
development appeal board.
10 Pursuant to section 685(2) of the Act 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.
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11 In this case the applicant had a right to appeal pursuant to section 685(1)(a) of the
Act.
12 Pursuant to section 686(1)(a)(i) of the Act a development appeal to a subdivision
and development appeal board is commenced by filing a notice of the appeal,
containing reasons, with the board within 14 days, in the case of an appeal made by a
person referred to in section 685(1), after the date on which the person is notified of the
order or decision or the issuance of the development permit.
13 Pursuant to section 686(1) of the Municipal Government Act, the Board, based on
the evidence, finds that the applicant’s statutory 14-day period for filing an appeal
started on January 08, 2015 and the legislated deadline for filing an appeal with the
Board was January 21, 2015.
14 The Board notes that the applicant did not appeal the Development Authority’s
refusal of the application. The appellant filed an appeal with the Board on January 30,
2015.
15 Under the scheme of the Act and the Land Use Bylaw, an application for a
development permit is in effect made on behalf of the property owner(s). Legally, a
development permit application and permit are associated with a parcel of land and run
with that property. Since the Board has found that the applicant did not have any other
interest in the property, the only way the applicant could have validly applied for a
permit was as the appellant’s agent.
16 It follows that regarding a development permit application the property owner’s
appeal right to appeal a refusal are synchronized with the applicant’s right to appeal
and therefore the legislative requirements for filing an appeal by an applicant pursuant
to section 686(1)(a) of the Act apply. In other words, in the case of a refusal of a
development permit application a property owner has no second right to appeal where
the applicant failed to appeal to the Development Authority’s refusal in accordance with
the legislative appeal period for filing an appeal.
17 Despite that the appellant Mr. Eastwood is affected by the refusal of the application
as a property owner, the Board therefore finds that section 685(2) of the Act does not
give a property owner a second chance to appeal a refusal in the case where the
applicant failed to appeal the Development Authority’s refusal of the application.
18 Regarding the development permit application the Board finds the following of
significance. The Board finds that since the property Title was transferred, the previous
owner was not authorized to make the subject application. The Development Authority
stated (Board report page 45) that the applicant is a law firm identified as representing
someone with a legal or equitable interest and therefore the application was accepted
by the General Manager’s delegate based on section 26(1) of the Land Use Bylaw.
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19 The Board notes that the applicant did not disclose what legal interest the applicant
or the previous property owners had in the property at the time of the application made.
The applicant was not authorized by the new property owners to make the application.
In the Board’s opinion the Development Authority should have not accepted the
application unless the owners had authorized the applicant to make the application as
their agent or if the mentioned legal interest in the property clearly was outlined. In the
absence of any of these circumstances, the Board finds that the application legally was
a nullity.
20 Notwithstanding the appellant’s submission and the aforementioned facts and
findings, the Board finds that it was the responsibility of the appellant to ensure that a
notice of appeal was filed on time in accordance with section 686(1) of the Act.
21 As the appellant’s appeal was filed with the Board on January 30, 2015, the Board
finds that the subject appeal was not submitted in accordance with the legislative
requirements for filing an appeal pursuant to section 686(1) of the Act. The Board,
based on the evidence, finds that the appeal was not filed within the legislated time
period for filing an appeal.
22 The Board, however, notes that the appellant has the right to make a new
development permit application and perhaps has some recourse through that means.
Conclusion
23 The Board finds it has no jurisdiction to hear the appeal.
24 Therefore, the appeal is struck.
___________________________________
Rick Grol, Chairman
Subdivision and Development Appeal Board
Issued on this 18th day of March, 2015
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