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PLANNING AND DEVELOPMENT - Variances - Permits - Tribunal authority - Relationship to development bylaws

Thursday, November 30, 2017 @ 8:27 AM  

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Appeal by the Garneau Community League and Stanley-Maddocks from a decision by the City of Edmonton Subdivision and Development Appeal Board in favour of the respondent, San Properties Limited. The respondent developer was refused a development permit to demolish a single detached home and construct a three-unit apartment building. The proposed development was within a neighbourhood designated as a special character residential area and failed to meet certain minimum zoning bylaw requirements. On appeal, the Board overturned the development officer's decision and granted a development permit with the requisite variances permitting construction of the three-dwelling apartment building. A community league and neighbour opposing the development obtained permission to appeal the Board's decision.

HELD: Appeal allowed. The Board reasonably and correctly found that the development officer failed to properly consider the specific variance power set out in the applicable zoning bylaw. However, the Board's interpretation of the Municipal Government Act and the applicable bylaw in relation to its general variance power and the substitution of its own decision was both incorrect and unreasonable given that the matter concerned property subject to direct control zoning. The Board was not at liberty to grant specific variances not contemplated by Council for a direct control district. To find otherwise would impermissibly grant the Board broader powers on appeal than those conferred to the development authority. The development permit was cancelled and the matter was referred back to the Board for rehearing.

Garneau Community League v. Edmonton (City), [2017] A.J. No. 1201, Alberta Court of Appeal, J. Watson, F.F. Slatter and J. Strekaf JJ.A., November 14, 2017. Digest No. TLD-November272017007