Subdivision and
Development Appeal Board
Office of the City Clerk
Main Floor, Churchill Building
10019 – 103 Avenue NW
Edmonton, AB T5J 0G9
Telephone: (780) 496-6079
Fax: (780) 496-8175
DATE: December 6, 2013
APPLICATION NO: 103005814-005
FILE NO.: SDAB-D-13-261
NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD
This appeal dated September 30, 2013, from the decision of the Development Authority for
permission to:
Add the Use of a Small Animal Breeding and Boarding Establishment within an existing General
Retail Store and Personal Service Shop (Devine K9 Dog Care Service Ltd.)
on Lot 205, Block 14, Plan B4, located at 10552 – 114 Street NW, was heard by the Subdivision
and Development Appeal Board at its hearing held on October 24, 2013 and November 21, 2013.
The decision of the Board was as follows:
October 24, 2013 Hearing
SUMMARY OF HEARING:
At the outset of the appeal hearing, the Chairman confirmed with the
parties in attendance that there was no opposition to the composition of the
panel.
The Board heard from Ms. Roberts, Legal Counsel for the Appellant, Ms.
Burrill, who made the following points:
1. She stated that she was going to meet with her client to brief her for
the appeal hearing; however, due to a family emergency she was
unable to do this.
2. She is requesting additional time to prepare evidence to support the
appeal and brief her client.
3. She stated that she spoke to a staff member from the Subdivision and
Development Appeal Board staff who indicated that the earliest
hearing date would be November 20 or 21, 2013 to which she was
agreeable.
SDAB-D-13-261
2
December 6, 2013
SUMMARY OF HEARING CONTINUED:
The Board heard from Mr. Luke, representing the Sustainable
Development Department, who made the following points:
1. He was unaware that Legal Counsel for the Appellant would be asking
for a tabling request until this time.
2. He stated that the City did not have an issue with the tabling request.
In response to questions by the Board, Mr. Luke provided the following
information:
1. He was asked if the business received a ticket for operating without a
permit and he stated that no ticket had been issued and the Applicant
was advised to apply for a development permit.
DECISION:
that the appeal be TABLED TO NOVEMBER 20 or 21, 2013 at the verbal
request of the Appellant.
REASONS FOR DECISION:
The Board finds the following:
1. Due to a family emergency, Legal Counsel for the Appellant, was not
able to prepare for the appeal hearing in time.
2. The Sustainable Development Department did not object tabling the
appeal hearing.
November 21, 2013 Hearing
MOTION:
“that SDAB-D-13-261 be raised from the table.”
SUMMARY OF HEARING:
At the outset of the appeal hearing, the Chairman confirmed with the
parties in attendance that there was no opposition to the composition of the
panel.
SDAB-D-13-261
3
December 6, 2013
SUMMARY OF HEARING CONTINUED:
The Chairman first addressed the issue of jurisdiction and whether the
appeal was filed outside of the allowable 14 day appeal period, pursuant to
the requirements of the Municipal Government Act.
The Board heard from Ms. Roberts, Legal Counsel for the Appellant, Ms.
Burrill, who stated that notice of the refused permit was received on
September 16, 2013 and the appeal was filed 14 days later on September
30, 2013, and that, therefore, the appeal was filed within the legislated
allowable time period.
No other party in attendance made submissions with regard to the issue of
the time of filing.
MOTION:
“that the Board assumes jurisdiction.”
REASONS FOR DECISION:
1. The Board accepts the Appellant’s submission that notice of the
refused permit was received on September 16, 2013.
2. Since the appeal was filed on September 30, 2013, the appeal was filed
within 14 days of receiving notice of the decision of the Development
Authority’s decision and therefore the Board has jurisdiction to hear
the appeal.
SUMMARY OF HEARING CONTINUED:
The Board heard an appeal of the decision of the Development Authority
to refuse an application to add the Use of a Small Animal Breeding and
Boarding Establishment within an existing General Retail Store and
Personal Service Shop (Devine K9 Dog Care Service Ltd.), located at
10552 – 114 Street NW. The subject site is zoned DC1 Direct
Development Control Provision. The development permit application was
refused because a Small Breeding and Boarding Establishment is not listed
as either a Permitted or Discretionary Use in this DC1 Zone. The
Development Authority also noted that there was a deficiency in the
number of required parking spaces.
SDAB-D-13-261
4
December 6, 2013
SUMMARY OF HEARING CONTINUED:
The Board notes that three letters were received in opposition to the
proposed development.
The Board heard from Ms. Roberts, Legal Counsel for the Appellant, Ms.
Burrill, who was accompanied by Ms. Burrill, who together made the
following points:
1. The business operating on the subject site provides a doggy daycare
service with occasional short-term overnight boarding for dogs and
cats. The business also provides dog grooming and sells products and
merchandise to pet owners.
2. The Appellant has an existing valid development permit. It was issued
in 2010 based on the application submitted by the Appellant’s
landlord.
3. The application submitted by the landlord was based on information
provided by the Appellant about the nature of her business operations,
which included a Dog Daycare, dog grooming, overnight services,
obedience training and some retail sales.
4. The services provided by the Appellant’s business have not changed
since the 2010 development permit application was submitted.
5. The Appellant received a violation notice from the City in April 2013.
Based on discussions with the City of Edmonton, an application for the
change of Use was submitted. However, she believes the application
to add a Use was not appropriate.
6. In the original Development Permit the phrase “dog grooming and
sales” was added to the General Retail and Personal Service Shop
Uses. Given the nature of the services being provided by the
Appellant’s business in 2010, the 2010 permit must authorize the
offering of all services provided by the Appellant, including the
provision of short-term overnight boarding.
7. The main service of the proposed development is a Dog Daycare
during business hours.
8. The customers accessing the business are people who work long hours
and some night shifts who need a safe place for their dogs during
working hours. The business rarely has people board their dogs that
do not regularly use the Dog Daycare. The majority of dogs that stay
overnight are owned by night shift workers or those who cannot pick
up their dogs before 7:00 p.m.
SDAB-D-13-261
5
December 6, 2013
SUMMARY OF HEARING CONTINUED:
9. When dogs stay overnight, a staff member will check on the dogs
between 9:30 p.m. and 10:00 p.m. for about a half an hour to one hour
and then leave. Staff return to the subject Site at 6:30 a.m. There are
no overnight employees, but this is an option they are willing to
consider if necessary.
10. The Development Authority failed to follow the direction of City
Council, because it failed to characterize a Small Animal Breeding and
Boarding Establishment Use as an Accessory Use to the already
approved Uses at the subject Site.
11. The Small Animal Breeding and Boarding Establishment is the
Accessory Use that should apply to the existing Principal Uses of
General Retail Store and Personal Service Shop.
12. The absence of “Dog Daycare” as a defined Use in the zoning Bylaw
is a gap that has been addressed in the past by the Development
Authority by recognizing overnight boarding of animals as an
accessory Use. The Board can approve the proposed development as
an Accessory Use because the direction to apply for a change in Use
was an error of the Development Authority.
13. They cited four examples of other businesses which provide short term
boarding for small animals in zones where Small Animal Breeding and
Boarding Establishment is not a Permitted or Discretionary Use. These
examples were to support their argument that short term boarding of
animals can be approved as an Accessory Use. When asked about the
zoning of these four other businesses, they identified them as IB
Industrial Business Zone, DC1 Direct Development Control Provision,
and IM Medium Industrial Zone, none of which allows for a Small
Animal Boarding and Breeding Establishment.
14. Ms. Burrill does not have the underlying permit application because
she is the tenant.
15. They confirmed that parking is an issue in this area but not necessarily
related to their business and they are not aware of any generalized
parking concern.
16. Parking is not at issue in this application because a variance to parking
was granted in the 2010 application. Between 2010 and the date of
this permit application, there has been no change in the number of
required parking stalls.
17. With regard to the Queen Mary Park Area Redevelopment Plan, they
stated that the business is not inconsistent with allowing this Use as it
does not prohibit it. The Area Redevelopment Plan promotes a mix of
residential and business uses and this service is provides to some of the
residents and meets the Area Redevelopment Plan aimed to integrate
these Uses.
SDAB-D-13-261
6
December 6, 2013
SUMMARY OF HEARING CONTINUED:
18. The business attracts residents in the area, individuals that live
downtown, and customers in other parts of the City.
19. Five to six customers walk their dogs to the subject Site.
20. They were asked about the concerns expressed in two letters of
opposition that were received at the offices of the Board. With regard
to the letter from the Community League, they said that it appears the
League has misinterpreted the application as asking for something new
and expanded rather than continuing approval for the existing
business. With regard to the second letter in opposition to the
proposed development regarding parking issues and dog feces, they
stated that bags are provided to their customers to pick up after their
dogs. Because they had only received copies of the letters this
morning, they were unable to seek further clarity on the expressed
concerns.
21. The proposed development fits in with the Area Redevelopment Plan
and they are supporting the residents in the area and is compatible with
surrounding businesses in this area.
22. They confirmed that dogs stay overnight one to six nights but not over
one week.
23. The original Development Permit Use does not describe the Dog
Daycare but their services have not changed since the operation began.
24. They confirmed that they discussed the services of the Dog Care
Service with the property owner.
25. They stated that there is no change in the Use and that this should be
more clearly spelled out.
26. With regard to Section 7.1(b) of the Edmonton Zoning Bylaw, which
refers to situations where a specific use does not conform to the
wording of any Use Class definition, they were asked to identify the
Use that best describes the business. They stated that General Retail
Store and Personal Service Shop is the best fit, but not perfect.
Furthermore, there is no specific Use in the bylaw that applies to the
grooming of small animals.
27. The business which was approved in 2010 is different from a Small
Animal Breeding and Boarding Establishment because they have
fewer animals (a maximum of two to six dogs per night) and have no
outdoor kennels or dog runs.
The Board then heard from Mr. Cormier and Mr. Hogberg, speaking on
behalf of the Sustainable Development Department, who together made
the following points:
SDAB-D-13-261
7
December 6, 2013
SUMMARY OF HEARING CONTINUED:
1. He reviewed the Site location and the purpose of the DC1 Direct
Development Control Provision.
2. This Use does not meet the purpose of the Zone particularly with
reference to the aim of development at a human scale.
3. He stated that the history of complaints about howling, barking, and
parking issues indicates that this overnight boarding of dogs is not
compatible in the area.
4. With regard to Accessory Uses, the Development Authority confirmed
that Uses are determined based on the amount of Floor Area devoted
to a Use. Daycare and Boarding represent the majority of the Floor
Area and are not to be considered Accessory Uses.
5. The 2010 permit correctly assigned Uses as they existed at that time
and there was no evidence that Boarding was indicated on the
development permit application. However, the original permit
application cannot be located.
6. Dog grooming is a Personal Service Shop as a dog can be considered a
personal effect.
7. Any type of overnight boarding triggers categorization of a Small
Animal Breeding and Boarding Use.
8. There are two complaints on file which were made in 2010.
9. The Use is not in accordance with the Development Permit and the
permit does not include a condition with regard to not overnight
Boarding.
10. A Violation Notice was issued for operating a Small Animal Breeding
and Boarding Establishment without a permit; however, there are no
records of the description of the Use in 2010.
11. They are not aware if a Dog Daycare and overnight boarding was
listed in the development permit application; however, if that were the
case there would not be an appeal hearing today.
12. A dog daycare would fall within the previously approved uses on the
subject site. However, overnight boarding of dogs does not fall within
the approved use classes.
13. There is no change in parking and there were 17 parking spaces then
and there are 17 parking spaces now. Parking deficiencies did not
form the basis for refusing the development permit.
14. The original Development Permit for grooming was listed and fits the
Personal Service Shop category and the subject Site is planned for Dog
Boarding and this triggered the refusal of the development permit as a
Personal Service Shop should not be allowed to include Boarding.
15. The City can use the Edmonton Zoning Bylaw with Accessory Uses
given that the DC1 Direct Development Control Provision is silent.
SDAB-D-13-261
8
December 6, 2013
SUMMARY OF HEARING CONTINUED:
16. He did not consider whether or not the DC1 Direct Development
Control Provision restricts their capability to apply Accessory Uses
from the Edmonton Zoning Bylaw.
17. The Violation Notice triggered the current development permit
application; however, it should have been a Stop Order and not a new
development permit application.
The Board then heard from Mr. Gibson, who made the following points:
1. He owns the building adjacent to the subject Site and is asking the
Board to manage the City and look at the bigger picture and Council’s
intent.
2. The proposed development is for Dog Boarding.
3. Regardless of whether the dogs are on the premises for a few hours or
days it is considered Boarding.
4. Using the label “Dog Daycare” is an exercise in semantics. In fact, it
is a dog boarding facility.
5. The congregating of dogs creates noise that can be heard through two
brick walls.
6. He has had tenants move out of the building due to the noise level
from the Dog Daycare.
7. 10 to 20 dogs are often inside and outside at the same time and excess
of noise is generated.
8. Noxious fumes are produced due to the excess of urination from the
dogs; however, defecation is not an issue.
9. There are several dogs in one area for a length of time unlike a
business such as Pet Smart which provides grooming services. In
those cases, a small number of dogs are on-site for a limited period of
time.
10. The development permit should not have been approved in the first
place.
11. The proposed development is not properly classified and should be
refused.
12. There is a need for this type of business in the City but in a different
location and Zone.
13. Parking is not an issues; however, three parking spaces are assigned to
the subject Site which have been turned into a dog run.
14. The Appellant is putting up parking signs on the property which is
becoming an issue.
15. This area is surrounded by businesses of a mixed Use and the proposed
development does not fit in with the character of the neighbourhood.
16. The City did not allow for this type of development in this Zone.
SDAB-D-13-261
9
December 6, 2013
SUMMARY OF HEARING CONTINUED:
17. There is no dedicated parking for any business in or immediately
around the subject Site.
In rebuttal, Ms. Roberts and Ms. Burrill provided the following
information:
1. They illustrated the specific location of the six kennels where animals
are penned overnight and estimated that this takes up approximately
ten percent of the main floor area.
2. Cat boarding is located in a small portion of less than 10 percent of the
mezzanine level of the building.
3. They confirmed the proposed plans provided are the same plans that
were submitted in the 2010 development permit application and that
wording is added to the floor plans as was required by the City, in
particular, “dog daycare/boarding”, and “public/retail” to the main
floor plan, and “cat boarding”, to the mezzanine level.
4. The kennels are used for dog naps in the afternoon.
5. There are parking spaces for employees.
6. They were unaware of the concerns from the adjacent building.
DECISION:
that the appeal be DENIED and the decision of refusal by the
Development Authority CONFIRMED.
ANALYSIS:
The circumstances surrounding this appeal create a number of issues
which are difficult for the Board to resolve given the nature of the
application before it.
The Appellant and the Development Authority have each acknowledged
that the development permit application to add a Small Breeding and
Boarding Establishment Use to the subject site was as a result of a
Violation Notice issued by the City of Edmonton and was applied for at
the suggestion of the City of Edmonton.
There are some difficulties surrounding the circumstances of this appeal:
SDAB-D-13-261
10
December 6, 2013
DECISION CONTINUED:
1. The Appellant has a valid existing development permit for a General
Retail and Personal Services Shop Use, with the phrase “dog grooming
and sales” noted beside the description of the Use on the 2010
development permit approval.
2. The Appellant contends that the 2010 development permit application
fully described all of its business operations, including the dog daycare
and overnight boarding.
3. The City of Edmonton does not have any records of the development
permit application submitted in 2010. However, they acknowledge that
if the development permit application indicated dog daycare and
overnight boarding were being conducted on the subject site, there
would be no need for the Appellant to seek further development
permits for its current business operations.
4. The Alberta Court of Appeal decision in Sihotra v. Edmonton (City),
2013 ABCA 43 supports the proposition that if the 2010 development
permit application indicated the Appellant would be conducting dog
daycare and overnight boarding on the subject site, the City would not
be able to prevent the Appellant from continuing to provide such
services at the subject site.
5. It appears that the Development Authority is satisfied that the
description of “dog grooming and sales” noted beside the approval of a
General Retail and Personal Services Shop Use in the 2010
development permit approval captures the dog daycare services
provided at the subject site, but does not capture the overnight
boarding services. It is unclear how the Development Authority has
made such a distinction. Dog daycare services seem distinctly different
from dog grooming and sales. If dog daycare, which involves having
numerous dogs on-site for eight to twelve hours per day falls within
the existing approved permit, it is unclear how overnight boarding in
which dogs remain on-site in kennels for eight to twelve hours per day
would be more objectionable. If anything, the impact on the
neighbouring businesses would be lower during the overnight hours as
businesses are less likely to be in operation in the late evening / early
morning hours when the overnight boarding activity is occurring.
6. Unfortunately, the 2010 development permit application, which would
have been of great assistance in resolving this matter between the
parties, cannot be produced by either the Appellant or the
Development Authority and, at this point, the Board cannot conclude
whether or not the dog daycare and overnight boarding services were
included within the scope of the initial application.
SDAB-D-13-261
11
December 6, 2013
DECISION CONTINUED:
Ultimately the Board is charged with making a decision based on the
application before it. The above analysis may very well be relevant in
the context of an appeal of a stop order issued by the City of
Edmonton. However, the application before the Board is to add a
Small Animal Breeding and Boarding Establishment Use to the subject
site, or, as presented at the hearing, to have the Small Animal Breeding
and Boarding Establishment Use designated as an Accessory Use to a
previously approved Use on the subject site. Accordingly, the Board’s
decision is based on the application before it.
REASONS FOR DECISION:
The Board finds the following:
1. The proposed development application is to add a Small Animal
Breeding and Boarding Establishment Use to the subject Site in a DC1
Direct Development Control Provision.
2. Section 641(4)(b) of the Municipal Government Act states, “if a
decision with respect to a development permit application in respect of
a direct control district 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.”
3. The Development Authority followed the directions of Council in
refusing the development permit application. A Small Animal
Breeding and Boarding Establishment is not an allowable use within in
the DC1 Direct Development Control Provision.
4. The Board cannot approve a Use that is not listed in the DC1 Direct
Development Control provision.
5. The Board considered the Appellant’s alternate submission that the
proposed Use is accessory to the existing approved uses on the subject
site.
6. The Board finds that a Small Animal Breeding and Boarding
Establishment Use cannot be regarding as Accessory to either a
General Retail or Personal Services Shop Use as it is not naturally or
normally incidental, subordinate, and exclusively devoted to the
principal Use of General Retail Store or a Personal Services Shop. The
Board made this conclusion for the following reasons:
SDAB-D-13-261
12
December 6, 2013
REASONS FOR DECISION CONTINUED:
a. The definition of a General Retail Use is intended to cover
business operations characterized by the retail sale of goods or
merchandise to the public. It also contains examples of
accessory uses which include businesses such as postal services
or pharmacies.
b. A business offering dog daycare and / or overnight boarding of
dogs and cats is not a business that would be commonly
associated with a retail business.
c. A Personal Services Shop Use contemplates services related to
the care and appearance of the body, or the cleaning and repair
of personal effects. A dog daycare and / or overnight boarding
services is not a natural extension of a Personal Services Shop
as the nature of such a business does not provide services
related to appearance of the body or the cleaning and repair of
personal effects.
7. Notwithstanding the determination of the Board in this matter, this
decision should not be interpreted as determining that the 2010
approved development permit does not allow for a Dog Daycare and
overnight boarding of animals as insufficient information was
available at the hearing to make such a determination.
IMPORTANT INFORMATION FOR APPLICANT/APPELLANT
1.
This decision may be appealed to the Alberta Court of Appeal on a question of law or
jurisdiction under Section 688 of the Municipal Government Act, R.S.A. 2000, c. M-26.
If the Subdivision and Development Appeal Board is served with notice of an application
for leave to appeal its decision, such notice shall operate to suspend the Development
Permit.
SDAB-D-13-261
2.
13
December 6, 2013
When a decision on a Development Permit application has been rendered by the
Subdivision and Development Appeal Board, the enforcement of that decision is carried
out by the Sustainable Development Department, located on the 5th Floor, 10250 – 101
Street, Edmonton.
Mr. R. Colistro, Chairman
SUBDIVISION AND DEVELOPMENT
APPEAL BOARD
cc:
NOTE: Citizens can call 311, 24-hours a day, every day of the year for access to City of
Edmonton information, programs and services.
SDAB-D-13-263
Application No. 135423663-001
An appeal by 1330389 Alberta Ltd. to construct Four (4) Dwellings of Row
Housing, on Lot 1, Block 2, Plan 4504AJ, located at 12206 – 111 Avenue NW,
was TABLED TO DECEMBER 11 or 12, 2013.
Subdivision and
Development Appeal Board
Office of the City Clerk
Main Floor, Churchill Building
10019 – 103 Avenue NW
Edmonton, AB T5J 0G9
Telephone: (780) 496-6079
Fax: (780) 496-8175
DATE: December 6, 2013
APPLICATION NO: 141747067-001
FILE NO.: SDAB-D-13-287
NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD
These appeals dated October 28 and November 1, 2013, from the decision of the Development
Authority for permission to:
Construct a Single Detached House with uncovered deck (maximum 7.32 metres by 3.66
metres), fireplace and to demolish an existing Single Detached House
on Lot 8, Block 88, Plan 2803AF, located at 13115 – 104 Avenue NW, was heard by the
Subdivision and Development Appeal Board at its hearing held on November 21, 2013. The
decision of the Board was as follows:
SUMMARY OF HEARING:
At the outset of the appeal hearing, the Chair confirmed with the parties in
attendance that there was no opposition to the composition of the panel.
The appeals were filed on time, in accordance with Section 686 of the
Municipal Government Act, R.S.A 2000, c. M-26.
The Board heard appeals of the decision of the Development Authority to
approve, subject to conditions and with variances granted in the minimum
required Rear Setback and the maximum allowed projection of a Platform
Structure into a Setback or Separation Space, an application to construct a
Single Detached house with uncovered deck (maximum 7.32 metres by
3.66 metres), fireplace and to demolish an existing Single Detached
House, located at 13115 – 104 Avenue NW. The subject site is zoned RF1
Single Detached Residential Zone and is within the Mature
Neighbourhood Overlay.
The approved development permit was
subsequently appealed by two adjacent property owners.
SDAB-D-13-287
2
December 6, 2013
SUMMARY OF HEARING CONTINUED:
The Board heard from Mr. Lyle Brookes, one of the Appellants, who
provided the following information in support of their appeal:
1. He referenced the aerial photograph provided by the Board and
indicated that it depicted the old house that occupied two lots,
including the subject site, and has since been demolished.
2. The subject site is the easternmost lot, immediately adjacent to his
property.
3. The photograph marked SDAB-D-13-287 shows both of the
Respondent’s lots, his own property, Mr. and Mrs. Matthewson’s
property and the Ramsey Ravine.
4. The calculation of site coverage is correct but he pointed out that the
total site coverage of the subject site is less than 1 percent less than the
maximum allowed for this lot.
5. It was his opinion that the variance for the proposed house should be
considered in context of the entire development including the triple
detached Garage that has already been approved. It was his opinion
that both developments on this lot are massive.
6. Sunlight penetration to his property will be limited because of the
height and length of the proposed house.
7. He and his family use their rear yard amenity space extensively
because their front yard is adjacent to Stony Plain Road and using the
front yard presents some safety concerns for his family.
8. He referenced the aerial photograph and indicated that a portion of
their house is only one storey.
9. It was his opinion that the proposed development should be considered
a commercial development because the developer plans to sell the
house for profit and that this economic gain equals a loss in property
value for him and his neighbours.
10. The loss of sunlight penetration into his rear yard will also impact the
value of his property.
11. The previously approved detached triple car garage will also impact
sunlight penetration into his rear yard.
Mr. Brookes provided the following responses to questions:
1. It was his opinion that the loss of sunlight penetration will negatively
impact the value of a property although he did not have an expert
opinion to support his opinion.
SDAB-D-13-287
3
December 6, 2013
SUMMARY OF HEARING CONTINUED:
2. The house that was demolished from the subject site was two storeys
on the west side and one storey on the east side which did not block
sunlight penetration into his rear yard.
3. The proposed new house is a full two storey structure.
4. The developer has removed existing mature trees from the subject site
that provided a buffer to Stony Plain Road.
5. The proposed development does not maintain the character of the
block.
6. There are three small “cottages” located mid-block that were built in
the 1920’s which add significant value to the neighbourhood and the
proposed development does not maintain the character of the block or
the neighbourhood.
The Board then head from the second Appellants, Mr. and Mrs.
Matthewson, who made the following points in support of their appeal:
1. Mrs. Matthewson referenced the map contained in the agenda to
clarify that the Ramsey Ravine abuts their property to the east, not a
lot as indicated on the agenda map.
2. Mr. Matthewson questioned the differing calculations for the required
variance.
3. It was his opinion that the Applicant has the right to develop the site as
long as the development complies with all of the development
regulations.
4. If the variance was not allowed, a smaller house would have to be
constructed on the subject site.
5. Mr. Matthewson questioned the community consultation that was
undertaken by the developer.
6. Mr. Matthewson does not recall seeing a copy of the site plan while
Mrs. Matthewson advised the Board that she did see a site plan but that
it did not include the proposed triple car detached garage.
7. They have lived in this neighbourhood for 44 years and it was their
opinion that the proposed development will create problems in the
neighbourhood.
The Board then heard from the Respondent, Mr. Michael Pavone who
used a PowerPoint presentation to make the following points in support of
the proposed development:
1. A professional surveyor was hired to survey the front and rear yards of
adjacent properties.
SDAB-D-13-287
4
December 6, 2013
SUMMARY OF HEARING CONTINUED:
2. All of the rear yards, with the exception of one, are smaller than the
rear yard for the proposed development.
3. The proposed detached garage has been approved by Sustainable
Development and complies with all of the development regulations.
The garage has been sited closer to the rear lane in an attempt to
mitigate the impact on adjacent property owners.
4. The proposed development will not impact sight lines to the Ramsey
Ravine.
5. The proposed development complies with the maximum allowable Site
Coverage regulations.
6. The proposed house on the subject site has been sited to provide a
front yard that is consistent with the front yards of the other houses on
the block to maintain the character of the block.
7. Based on the survey measurements, all of the other houses on the
block encroach into minimum required Rear Yard.
8. There are several houses located within two blocks of the subject site
that have a similar square footage.
9. The proposed development complies with all of the side yard setback
and height requirements.
10. It was his opinion that variances required in the side setbacks and
height requirements would have more of an impact on the value of
adjacent properties.
11. It was his opinion that the proposed development will not impact the
amount of sunlight penetration in Mr. and Mrs. Brooke’s rear yard,
located immediately east of the subject site or Mr. and Mrs.
Matthewson’s rear yard, located south of the subject site.
12. Mr. Pavone provided a list of comparables, marked Exhibit “A” to
demonstrate that the proposed development will increase the value of
neighbouring properties.
13. This information is based on single family houses that were built after
2000 and the prices over the past three years.
14. The President of the Glenora Community League has provided written
support for the proposed development.
15. Hagen Surveys was contracted to survey neighbouring properties and
it is not necessary to obtain permission from property owners to survey
their lots. Any permission would have been obtained by Hagen
Surveys if it was required.
SDAB-D-13-287
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December 6, 2013
SUMMARY OF HEARING CONTINUED:
Mr. and Mrs. Brookes made the following points in rebuttal:
1. It was their opinion that the community consultation was not done in
an open format. The site plan was not provided and the overall impact
was not demonstrated to affected property owners.
2. It was their opinion that the sales data provided by the Applicant is not
relevant because Mr. Pavone is not a licensed appraiser.
3. The market analysis is irrelevant because it does not include location
information or the impact of the development on their property.
4. There is a private Caveat in this neighbourhood that does not allow
siting the proposed house closer to the front property line.
5. The granting of variances for other houses in this neighbourhood is not
relevant.
6. The portion of their house that extends farthest into the rear yard is a
flat single storey portion of their house which will not have any impact
on the proposed development.
7. It was their opinion that the overall impact of the proposed
development of the two storey house and the approved detached
Garage should be considered.
8. The proposed development will block their view of the mature elm
trees on 132 Street and the use and enjoyment of the neighbourhood.
9. The houses on the block which do not meet the minimum Rear
Setback requirements do not have rear detached garages. Those
houses with rear Detached Garages comply with the minimum Rear
Setback requirements.
Mr. and Mrs. Matthewson made the following point in rebuttal:
1. The Respondent has the right to build a house but it was their opinion
that it should conform to the development regulations.
2. Mr. Matthewson questioned the community consultation and how
support for the development was obtained.
DECISION:
that the appeals be ALLOWED and the development REFUSED.
SDAB-D-13-287
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December 6, 2013
REASONS FOR DECISION:
The Board finds the following:
1. Single Detached Housing is a Permitted Use in the RF1 Single
Detached Residential Zone.
2. Pursuant to Section 814.1 of the Mature Neighbourhood Overlay, the
purpose of this Overlay is to ensure that new low density development
in Edmonton’s mature residential neighbourhoods is sensitive in scale
to existing development, maintains the traditional character and
pedestrian-friendly design of the streetscape, ensures privacy and
sunlight penetration on adjacent properties and provides opportunity
for discussion between applicants and neighbouring affected parties
when a development proposes to vary the Overlay regulations.
3. The proposed development does not comply with the General Purpose
of the Mature Neighbourhood Overlay because it is not sensitive in
scale to existing development, does not maintain the traditional
character and pedestrian-friendly design of the streetscape and does
not ensure privacy and sunlight penetration on adjacent properties.
4. Based on a review of the plans and evidence provided, the subject site
is a large rectangular lot that does not create a hardship. The
Respondent did not provide any compelling reason why it is
impractical to construct a house on the site that conforms with the
development standards of the Edmonton Zoning Bylaw regulations.
5. The fact that a large Front Setback is required based on the existing
Front Setbacks on the block face and the existing Private Caveat, does
not preclude the developer from designing a house that would comply
with the minimum required Rear Setback.
6. The Board was also not able to confirm the level of support from
affected property owners due to a lack of details and information
provided about how the community consultation was undertaken.
7. The Board notes that the summary of the community consultation that
was provided to the Sustainable Development Department indicated
that more affected property owners were opposed to the proposed
development than supported it.
8. Although the proposed development complies with the maximum
allowable Height and Site Coverage requirements for the RF1 Zone, it
is not sensitive in scale to existing development on the same block.
9. Although evidence was provided that the Rear Setbacks of many
houses along the south side of 104 Avenue are deficient, the Board
notes that these properties do not have rear detached Garages.
SDAB-D-13-287
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December 6, 2013
REASONS FOR DECISION CONTINUED:
10. Based on evidence provided, a triple car detached Garage has been
approved for the subject site which, when combined with the
deficiency in the minimum Rear Setback, will reduce the Private
Outdoor Amenity Area and create a massing effect which negatively
impacts the amenities of the neighbourhood.
11. Based on the above, it is the opinion of the Board, that the proposed
development would unduly interfere with the amenities of the
neighbourhood and materially interfere with and affect the use,
enjoyment and value of neighbouring parcels of land.
IMPORTANT INFORMATION FOR APPLICANT/APPELLANT
1.
This decision may be appealed to the Alberta Court of Appeal on a question of law or
jurisdiction under Section 688 of the Municipal Government Act, R.S.A. 2000, c. M-26.
If the Subdivision and Development Appeal Board is served with notice of an application
for leave to appeal its decision, such notice shall operate to suspend the Development
Permit.
2.
When a decision on a Development Permit application has been rendered by the
Subdivision and Development Appeal Board, the enforcement of that decision is carried
out by the Sustainable Development Department, located on the 5th Floor, 10250 – 101
Street, Edmonton.
Mr. R. Colistro, Chairman
SUBDIVISION AND DEVELOPMENT
APPEAL BOARD
c.c.
NOTE: Citizens can call 311, 24-hours a day, every day of the year for access to City of
Edmonton information, programs and services.
Subdivision and
Development Appeal Board
Office of the City Clerk
Main Floor, Churchill Building
10019 – 103 Avenue NW
Edmonton, AB T5J 0G9
Telephone: (780) 496-6079
Fax: (780) 496-8175
DATE: December 6, 2013
APPLICATION NO: 139509053-001
FILE NO.: SDAB-D-13-288
NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD
This appeal dated October 23, 2013, from the decision of the Development Authority for
permission to:
Construct an addition to a Religious Assembly Building (main and second floor addition –
Markaz-Ul-Islam)
on Lot 35, Block 1, Plan 7720940, located at 7907 – 36 Avenue NW, was heard by the
Subdivision and Development Appeal Board at its hearing held on November 21, 2013. The
decision of the Board was as follows:
SUMMARY OF HEARING:
At the outset of the appeal hearing, the Presiding Officer confirmed with
the parties in attendance that there was no opposition to the composition of
the panel.
The Presiding Officer first addressed the issue of jurisdiction and whether
the appeal was filed outside of the allowable 14 day appeal period,
pursuant to the requirements of the Municipal Government Act.
Mr. Tonowski, President of the Leefield Community League, and Mr.
Dwayne Myrmo, Director of the Leefield Community League, provided
the following information regarding the possible late filing of the appeal:
1. Mr. Tonowski explained that the volunteer Community League Board
meets once a month, not always on the same day.
2. The Board met on September 23, 2013, prior to the date of the
notification sent from Sustainable Development.
3. The Board met again on October 22, 2013 when the notice from
Sustainable Development was opened and it was noted that the appeal
period ended on October 16, 2013.
SDAB-D-13-288
2
December 6, 2013
SUMMARY OF HEARING CONTINUED:
4. Mr. Myrmo subsequently filed the appeal on October 23, 2013.
They provided the following responses to questions:
1. The meetings are held in the evening and the appeal was filed the next
day.
2. They were not sure when the notice was received.
3. Their part time employee does not typically open the mail when it is
received.
4. This notice was opened by their employee at the beginning of the
Board meeting on October 22, 2013.
5. The part time employee typically works 9 a.m. to 2 p.m., Monday
through Thursday, at the Community League office and receives the
daily mail delivery.
6. The Community League receives notices from the City of Edmonton
Sustainable Development every month. The notices are always
opened at the Community League Board meetings.
7. In the past the Community League Board has not treated the notices
seriously because they receive so many of them and the majority of the
notices do not impact them. They regarded mail from the City of
Edmonton as akin to receiving flyers and that is why their employee
did not open it prior to the Community League Board meeting.
8. This is the first time that the Community League Board has ever had
an interest in a notice of development.
9. A new policy has been instated as a result of this matter and their
employee has been instructed to open any mail from the City of
Edmonton immediately.
10. The date of receipt on October 8, 2013, was an estimation made by
their part-time employee, although it could have been received before
that date. Mail is not date-stamped as it is received at the Community
League office.
Neither the Appellants nor representatives from the Sustainable
Development Department wished to comment on the possible late filing of
the appeal.
MOTION:
“that the Board does not assume jurisdiction.”
SDAB-D-13-288
3
December 6, 2013
REASON FOR DECISION:
The Board finds the following:
1. Based on the evidence provided, the Board applied the provisions of
Section 23(1)(a) of the Interpretation Act and Section 686(1) of the
Municipal Government Act, and therefore finds that the appeal was not
filed within the allowable 14 days.
2. The Board does not accept the fact that the Community League does
not open its mail in a timely fashion as a reason to deem that effective
notice can be delayed to a date when it is more convenient for the
Community League to open its mail.
3. Citizens are entitled to finality in their legal matters.
The
Respondent’s application was granted subject to the right of appeal
during a 14 day period. It is unfair to the Respondent to not be able to
take action on their development permit after the expiry of the appeal
period out of fear that an appeal might be filed at some later date by a
party who has neglected to open delivered mail for a period of weeks
or longer.
4. The Community League provided evidence that an employee works at
the premises on a part-time basis and receives mail. They did not
provide any compelling reason as to why that employee does not open
mail addressed to the Community League.
5. The Board determined that the Appellant was notified of the decision
of the Development Authority when the envelope from the City of
Edmonton was received.
6. The Board cannot take jurisdiction to hear this appeal.
IMPORTANT INFORMATION FOR APPLICANT/APPELLANT
1.
THIS IS NOT A BUILDING PERMIT. A Building Permit must be obtained
separately from the Planning and Development Department, located on the 5th Floor,
10250 – 101 Street, Edmonton.
2.
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 any conditions of
approval, save those of a continuing nature, have been fulfilled.
3.
A Development Permit shall expire and shall no longer be valid after one year from the
date of approval of the Permit, if no construction has been initiated. However, 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. For further
information, refer to Section 22 of the Edmonton Zoning Bylaw, 12800.
SDAB-D-13-288
4
December 6, 2013
4.
Notwithstanding clause (3) above, if a Building Permit is issued for the development
within the twelve month period, the Development Permit issued therefore shall not lapse
unless and until the Building Permit so issued is cancelled or allowed to lapse by virtue of
work not having commenced within the statutory minimum period.
5.
This decision may be appealed to the Alberta Court of Appeal on a question of law or
jurisdiction under Section 688 of the Municipal Government Act, R.S.A. 2000, c. M-26.
If the Subdivision and Development Appeal Board is served with notice of an application
for leave to appeal its decision, such notice shall operate to suspend the Development
Permit.
6.
When a decision on a Development Permit application has been rendered by the
Subdivision and Development Appeal Board, the enforcement of that decision is carried
out by the Sustainable Development Department, located on the 5th Floor, 10250 – 101
Street, Edmonton.
Mr. M. Figueira, Presiding Officer
SUBDIVISION AND DEVELOPMENT
APPEAL BOARD
cc:
NOTE: Citizens can call 311, 24-hours a day, every day of the year for access to City of
Edmonton information, programs and services.