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					                        SDAB-D-11-148
                        Application No. 107204097-001

An appeal by                         to leave as built hardsurface landscaping,
parking in the required Front Yard on Lot 38, Block 20, Plan 0521388, located at
16529 – 63A Street NW, was TABLED to September 22, 2011
                     Subdivision and                       Office of the City Clerk
                     Development Appeal Board              Main Floor, Churchill Building
                                                           10019 – 103 Avenue NW
                                                           Edmonton, AB T5J 0G9
                                                           Telephone: (780) 496-6079
                                                           Fax: (780) 496-8175


                                                   DATE: August 12, 2011
                                                   APPLICATION NO: 108014323-001
                                                   FILE NO.: SDAB-D–11-149
          NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD

This appeal dated July 5, 2011, from the decision of the Development Authority for permission
to:

Construct a Secondary Suite (Above Grade)

on Lot 26, Block 85, Plan I, located at 10436 – 84 Avenue NW, was heard by the Subdivision
and Development Appeal Board at its hearing held on July 28, 2011. 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 appeal was filed on time, in accordance with Section 686 of the
                     Municipal Government Act, R.S.A 2000, c. M-26.

                     The Board heard an appeal of the decision of the Development Authority
                     to refuse an application to construct a Secondary Suite (Above Grade)
                     located at 10436 – 84 Avenue NW. The subject site is zoned RF4 Semi-
                     detached Residential Zone. The proposed development was refused
                     because of an excess in the maximum Floor Area allowed for a Secondary
                     Suite developed completely or partially above grade.

                     The Board heard from Mr. David Flanagan, the Appellant and Mr. & Mrs.
                     Gross, co-owners of the subject property. Mr. Flanagan provided the
                     following information in support of the appeal:

                     1. The original bungalow on the subject site was built in the 1950s.
SDAB-D-11-149                         2                              August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                2. An application to construct an addition to a Single Detached House
                    (Second Storey addition, including a master bedroom, sitting room and
                    bathroom and rear attached Garage with second storey studio and a
                    front uncovered deck and a rear uncovered deck) was approved in
                    1990.
                3. The owners of this property at that time were artists and applied for
                    and were granted a development permit to operate a Major Home
                    Based Business (printing studio) from the second storey studio in
                    2004.
                4. Mr. Flanagan and his Aunt and Uncle purchased this property from
                    those owners.
                5. Mr. Flanagan and his Aunt and Uncle have never operated a Major
                    Home Based Business from this location.
                6. The house contains two separate living spaces.
                7. Mr. and Mrs. Gross occupy the living space on the main floor and the
                    finished basement.
                8. Mr. Flanagan occupies the living space on the second floor.
                9. The original structure has retained most of the original design and both
                    living spaces are separated and are very distinct.
                10. Mr. and Mrs. Gross circulated a letter to their neighbours who reside
                    within the 60 metre notification radius to outline their situation. None
                    of the affected neighbours expressed any opposition to the proposed
                    development. The majority of neighbours indicated that they were not
                    opposed as long as nothing was changing on the site.
                11. During the development review of this application there was some
                    confusion regarding the interpretation of what part of the house
                    comprised the Secondary Suite and what part comprised the principal
                    dwelling.
                12. The fact that the original bungalow had a developed basement gave the
                    impression to the Development Officer that the larger of the two living
                    spaces was the main floor and the smaller area in the second storey
                    would be considered the suite.
                13. Mr. Flanagan suggested that the situation could be reversed so that the
                    main floor living space was designated as the Secondary Suite.
                    However, the Development Officer would not consider this possibility
                    and advised him to proceed with an appeal to the Subdivision and
                    Development Appeal Board.
                14. Mr. Flanagan described the floor plan of the house and how the space
                    is currently being used and indicated that the second bedroom for the
                    Secondary Suite would be the bonus room located above the attached
                    garage.
SDAB-D-11-149                         3                              August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                15. There are three levels in the dwelling, the main floor, a riser to the
                    bonus room above the garage and then the second storey.
                16. There is a rear entrance that accesses a landing and provides access to
                    the main floor and the second floor.
                17. The second entrance to the main floor is from the original front door of
                    the bungalow.
                18. The developed basement consists of a family room, a bedroom and a
                    large furnace and utility room.
                19. The developed basement does not contain a kitchen and is not used as
                    an additional dwelling.

                Mr. Flanagan provided the following responses to questions:

                1. It was his opinion that either the main floor or the second floor could
                   be designated as the Secondary Suite and he would be prepared to
                   accept the decision of the Board on this matter.
                2. He did explore the possibility of having this property designated as a
                   duplex or semi-detached house. However, the existing house would
                   neither comply with the existing fire and safety codes nor meet the
                   definition of a Duplex pursuant to Section 7.2(2) of the Edmonton
                   Zoning Bylaw.

DECISION:

                that the appeal be ALLOWED and the DEVELOPMENT GRANTED and
                the excess of 51.51 square metres in the maximum allowable Floor Area
                for a Secondary Suite developed above Grade be permitted, subject to the
                following conditions:

                1. a Major Home Based Business shall not be operated from this site,
                   unless the Secondary Suite is an integral part of a Bed and Breakfast
                   Operation conducted as a Major Home Based Business, and the
                   Development Permit for the previous Major Home Based Business
                   shall be invalid, pursuant to Section 22(3) of the Edmonton Zoning
                   Bylaw;
                2. the basement shall not be developed as an additional Dwelling as long
                   as the second storey is designated as a Secondary Suite.
SDAB-D-11-149                         4                             August 12, 2011

REASONS FOR DECISION:

                The Board finds the following:

                1.      A Secondary Suite is a Permitted Use in the RF4 Semi-detached
                        Residential Zone.
                2.      The living space on the second storey of this house has existed
                        since 1990.
                3.      The proposed development conforms to the definition of a
                        Secondary Suite as provided in Section 7.1(7) of the Edmonton
                        Zoning Bylaw.
                4.      Based on a review of the submitted Site Plan, the Board
                        determined that the Main Floor Area is 94.48 square metres and
                        the Floor Area of the Secondary Suite is 121.51 square metres,
                        which includes the bonus room above the Garage. The total Floor
                        Area of the building is 215.99 square metres, excluding the
                        basement. Section 86.2(b) states that in the case of a Secondary
                        Suite developed completely or partially above grade, the Floor
                        Area (excluding the area covered by stairways) shall not exceed 40
                        percent of the Total Floor Area above grade of the Building
                        containing the associated principal Dwelling, nor 70 square metres,
                        whichever is lesser. Forty percent of the total Floor Area of the
                        Building is 86.40 square metres. Seventy square metres is less
                        than 40 percent of the total Floor Area of the building. The floor
                        area of the Secondary Suite exceeds the allowable 70 square
                        metres of Floor Area by 51.51 square metres.
                5.      The proposed development will not change the footprint of the
                        existing living space or change the external appearance of this
                        residence.
                6.      The proposed development is in keeping with the policy direction
                        of the City of Edmonton which is to encourage housing where
                        feasible.
                7.      Pursuant to Section 86.7 of the Edmonton Zoning Bylaw, a
                        Secondary Suite shall not be included in the calculation of
                        densities.
                8.      The proposed Secondary Suite complies with all of the other
                        development regulations of the Edmonton Zoning Bylaw for
                        Secondary Suites, including the minimum parking requirement.
SDAB-D-11-149                            5                             August 12, 2011

REASONS FOR DECISION (CONTINUED):

                   9.     Based on the evidence provided, the Major Home Based Business
                          is no longer being operated from this site. The condition imposed
                          will ensure compliance with Section 86(6) of the Edmonton
                          Zoning Bylaw which states that “a Secondary Suite shall not be
                          developed within the same principal Dwelling containing a Group
                          Home or Limited Group Home, or a Major Home Based Business,
                          unless the Secondary Suite is an integral part of a Bed and
                          Breakfast Operation in the case of a Major Home Based Business.”
                   10.    The condition imposed to prohibit the development of an
                          additional dwelling in the basement will mitigate the impact of this
                          development in this neighbourhood and ensures compliance with
                          Section 86 of the Edmonton Zoning Bylaw.
                   11.    This neighbourhood is comprised of mixed residential uses,
                          including developments of a similar and higher density on the
                          same block.
                   12.    Based on the evidence provided, community consultation was
                          undertaken regarding the proposed development and the adjacent
                          property owners indicated that they will not be affected by the
                          proposed Secondary Suite.
                   13.    Based on the above, it is the opinion of the Board, that the
                          proposed development would not unduly interfere with the
                          amenities of the neighbourhood, or materially interfere with or
                          affect the use, enjoyment or value of neighbouring parcels of
                          land.”

          IMPORTANT INFORMATION FOR APPLICANT/APPELLANT

          The following information may not pertain to your specific situation.
          Should you have any questions, please do not hesitate to contact our
                               office at (780) 496-6079

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.
SDAB-D-11-149                                6                              August 12, 2011


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.

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 Planning and Development Department, located on the 5th Floor, 10250 – 101
       Street, Edmonton.

NOTE: Citizens can call 311, 24-hours a day, every day of the year for access to City of
      Edmonton information, programs and services.


                                                     Mr. M. Figueira, Presiding Officer
                                                     SUBDIVISION AND DEVELOPMENT
                                                     APPEAL BOARD
c.c.   Mr. & Mrs. Gross
                      Subdivision and                       Office of the City Clerk
                      Development Appeal Board              Main Floor, Churchill Building
                                                            10019 – 103 Avenue NW
                                                            Edmonton, AB T5J 0G9
                                                            Telephone: (780) 496-6079
                                                            Fax: (780) 496-8175


                                                    DATE: August 12, 2011
                                                    APPLICATION NO: 83632119-027
                                                    FILE NO.: SDAB-D–11-150

          NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD

This appeal dated June 30, 2011, from the decision of the Development Authority for permission
to:

Change the Use from General Retail to a Minor Service Station and construct interior alterations

on Lot 1, Block 9, Plan 0024700, located at 14433 – Miller Boulevard NW, was heard by the
Subdivision and Development Appeal Board at its hearing held on July 28, 2011. 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 appeal was filed on time, in accordance with Section 686 of the
                      Municipal Government Act, R.S.A 2000, c. M-26.

                      The Board heard an appeal of the decision of the Development Authority
                      to refuse an application to change the Use from General Retail to a Minor
                      Service Station and construct interior alterations located at 14433 – Miller
                      Boulevard NW. The subject site is zoned CNC Neighbourhood
                      Convenience Commercial Zone. The propose development was refused
                      because it is deemed to be a “General Industrial Use” which is neither a
                      Permitted nor a Discretionary Use in the CNC zone.
SDAB-D-11-150                          2                               August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                The Board heard from Mr. Daniel Eggert, Development Manager for
                Melcor Developments Ltd., who provided a detailed written submission, a
                copy of which is on file and Mr. Paul Hookham, representing Speedy
                Collision. Mr. Eggert and Mr. Hookham made the following points in
                support of the appeal:

                1. The proposed business is a specialty repair establishment that performs
                    express collision repairs to motor vehicles and specializes in
                    automotive parts replacement (bumpers, body panels, and trim).
                2. This business is a “boutique collision facility” which is different from
                    conventional collision repairers in that it will be a smaller facility with
                    more retail-oriented, express repair in an aesthetically pleasing façade
                    in close proximity to where customers live.
                3. Photographs of similar facilities operating in Edmonton and Calgary
                    were submitted.
                4. It was their opinion that the proposed development qualifies as either a
                    “Rapid Drive-through Vehicle Service” or a “Minor Service Station”
                    under the current zoning bylaws.
                5. However, during discussions with the Sustainable Development
                    Department they were advised to apply for a development permit for a
                    Minor Service Station.
                6. They were surprised that this development permit application was
                    subsequently refused.
                7. The application was refused because the Development Officer deemed
                    the proposed use to be a General Industrial Use which is neither
                    Permitted nor Discretionary in the CNC Zone.
                8. They attempted to discuss the refusal with the Development Officer
                    but were unsuccessful.
                9. Mr. Hookham advised that the proposed business will contain only one
                    service bay.
                10. The facility will only use waterborne refinishing products which
                    exceeds Environment Canada’s regulations.
                11. Most of the repair jobs are small at a cost of between $2,000 and
                    $3,000. Most jobs are completed within a few hours.
                12. Their customers usually don’t have to book an appointment unless
                    parts need to be ordered.
                13. Their business relies on the support of the other uses offered in the
                    commercial complex. Customers can come and wait for their car to be
                    repaired while utilizing any other business located in the same
                    commercial complex.
SDAB-D-11-150                          3                               August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                14. Two letters of support were submitted from current tenants of Miller
                    Crossing.    Five letters of support were submitted from other
                    neighbouring business owners in other locations in Alberta.

                Mr. Eggert and Mr. Hookham provided the following responses to
                questions:

                1. It was their opinion that the proposed development should not be
                    considered as a General Industrial Use even though auto body repair
                    and painting will occur on the subject site.
                2. The methods used to complete the auto body repair and painting are
                    different from the methods used in traditional auto body repair shops.
                3. It was their opinion that the proposed business more appropriately
                    qualifies as a Minor Service Station or a Rapid Drive Through Service.
                4. It was acknowledged that a Minor Service Station would also sell
                    gasoline.
                5. In some instances their customers will wait on site for the repairs to be
                    completed but a customer will never remain in their vehicle while the
                    service is completed.
                6. It was their opinion that the proposed business will provide a
                    convenience commercial use which is intended to serve the day-to-day
                    needs of residents in this residential neighbourhood which is in
                    keeping with the General Purpose of the CNC Zone.
                7. Their business includes standard auto repair which is handled by
                    Speedy Collision and small auto body repairs handled by Speedy
                    Bumper.
                8. Large collision repairs only comprise 5 percent of their business, the
                    majority of their business is small repairs.
                9. The average repair time is one to two hours.
                10. A photograph of a similar spray booth that will be used for the
                    painting service was submitted.
                11. It was their opinion that if a vehicle is still driveable, that repair would
                    be classified as a minor repair and could therefore fit the definition of
                    a Minor Service Station.
                12. The service that they provide to their customers is rapid which would
                    fit the definition of a Rapid Drive Through Service.
                13. A standard auto body service undertakes major vehicle repair jobs
                    which includes the grinding of vehicle parts and the necessity to store
                    damaged vehicles on their premises.
                14. A photograph was submitted to illustrate the size of the proposed site
                    and that the access to the proposed service bay will be from the rear.
SDAB-D-11-150                          4                             August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                15. It was their opinion that the proposed business will not cause a traffic
                    disruption because all of their repair jobs will be done by appointment.
                16. It was their opinion that the Board should consider the entire definition
                    of the General Use Class and not just portions of it.

                The Board then heard from Mr. Tom Gawluk on behalf of his parents, Mr.
                and Mrs. Gawluk who reside across the street from the subject commercial
                site. Mr. Gawluk made the following points in opposition to the proposed
                development:

                1. His parents have been greatly impacted by the development of this
                    commercial site.
                2. The impact will only increase if the proposed development is
                    approved.
                3. It was his opinion that the proposed business is an Auto Body Repair
                    and Paint Shop and that the Edmonton Zoning Bylaw does not allow
                    this type of business on the subject site.
                4. He expressed concern that if this business is allowed to proceed; other
                    intensive uses for this site will proceed in the future.
                5. This type of business is better suited for an industrial zone.
                6. The proposed development will increase traffic and involves the use of
                    paint and other toxic substances.
                7. Property values have decreased in this neighbourhood as a direct result
                    of this commercial complex.
                8. One of the main entrances to the commercial site is located directly
                    opposite their residence.
                9. Traffic noise has made it impossible for them to enjoy their side yard
                    and their rear yard.
                10. This neighbourhood is comprised of elderly residents and many
                    children.
                11. They were aware that the subject site was zoned CNC when they
                    purchased their property and that commercial uses were allowed.
                12. However, it was his opinion that the proposed auto body shop is not
                    suitable at this location and is not a business that will address the day
                    to day needs of the residents in this area.

                Mr. Eggert made the following points in rebuttal:

                1. Property values have decreased through the entire City of Edmonton as
                   a result of the downturn in the economy.
SDAB-D-11-150                          5                             August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                2. The development regulations of the CNC Zone would allow for the
                   development of a Mr. Lube or a 7 Eleven store which in his opinion
                   would have more of an impact on this area than the proposed
                   development.
                3. This type of business relies on the interaction between residents and
                   other local businesses operating in the same complex.
                4. It was reiterated that the business uses water based paint and that
                   fumes would not create a problem because a sprayer with a filter is
                   used to paint vehicles inside a spray booth.
                5. The first development permit for this commercial site was issued in
                   2008.
                6. It was his opinion that the services provided at this commercial site
                   will increase neighbourhood property values in the future.

DECISION:

                that the appeal be DENIED and the decision of the Development
                Authority CONFIRMED

REASONS FOR DECISION:

                The Board finds the following:

                1.      Based on the information provided, the proposed development is a
                        repair business that performs collision repairs to motor vehicles,
                        including the replacement and painting of automotive body parts.
                        The proposed development is therefore a Vehicle Body Repair and
                        Paint Shop which is included in the list of activities listed defined
                        as General Industrial Uses, pursuant to Section 7.5(2) of the
                        Edmonton Zoning Bylaw.
                2.      A General Industrial Use is neither a Permitted nor a Discretionary
                        Use in the CNC Neighbourhood Convenience Commercial Zone
                        pursuant to Section 310.2 and 310.3 of the Edmonton Zoning
                        Bylaw.
                3.      The Board did not accept the Appellant’s argument that the
                        proposed development is a Rapid Drive Through Vehicle Service
                        Use or a Minor Service Station Use based on the evidence of the
                        activities that will be conducted on the premises.
                4.      Section 687(3)(ii) of the Municipal Government Act states that in
                        determining an appeal, the Subdivision and Development Appeal
                        Board may make an order or decision or issue or confirm the issue
                        of a development permit even though the proposed development
SDAB-D-11-150                             6                             August 12, 2011

REASONS FOR DECISION (CONTINUED):

                            does not comply with the land use bylaw if, in its opinion, the
                            proposed development conforms with the use prescribed for that
                            land or building in the land use bylaw.
                    5.      The proposed development does not conform to the uses
                            prescribed for the land in question.”

           IMPORTANT INFORMATION FOR APPLICANT/APPELLANT

            The following information may not pertain to your specific situation.
            Should you have any questions, please do not hesitate to contact our
                                 office at (780) 496-6079

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 Planning and Development Department, located on the 5th Floor, 10250 – 101
      Street, Edmonton.

NOTE: Citizens can call 311, 24-hours a day, every day of the year for access to City of
      Edmonton information, programs and services.



                                                  Mr. A. Zariski, Presiding Officer
                                                  SUBDIVISION AND DEVELOPMENT
                                                  APPEAL BOARD
cc:   Daniel Eggert
      Paul Hookham
      Mr. & Mrs. Gawluk
                     Subdivision and                       Office of the City Clerk
                     Development Appeal Board              Main Floor, Churchill Building
                                                           10019 – 103 Avenue NW
                                                           Edmonton, AB T5J 0G9
                                                           Telephone: (780) 496-6079
                                                           Fax: (780) 496-8175


                                                   DATE: August 12, 2011
                                                   APPLICATION NO: 109555128-002
                                                   FILE NO.: SDAB-D-11-151
          NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD

This appeal dated July 5, 2011, from the decision of the Development Authority for permission
to:

Construct a rear uncovered deck, existing without permits (4.26 metres by 3.15 metres at 0.92
metres high)

on Lot 79, Block 34, Plan 8121671, located at 4142 – 38 Street NW, was heard by the
Subdivision and Development Appeal Board at its hearing held on July 28, 2011. 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 outlined the three phases of this appeal. The first
                     matter that the Board would have to address is whether or not the Board
                     has the authority to deal with the appeal pursuant to Section 685(3) of the
                     Municipal Government Act. The Board can only hear an appeal on a
                     Permitted Use if it is determined that the Development Authority relaxed,
                     varied or misinterpreted the land use bylaw. The second matter that will
                     be dealt with is the possible late filing of the appeal. If the Board is able
                     to get through these two gates, the merits of the appeal could be heard.

                     The Board heard from Ms. Elise Sabo, the Appellant, who made the
                     following points:

                     1. It was her opinion that the Development Officer made a mistake by
                        issuing this permit for an uncovered deck in an RPL Zone for zero lot
                        line housing.
SDAB-D-11-151                         2                              August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                2. Windows are not allowed on the zero lot line.
                3. Because of the special development regulations required for these type
                   of lots, she could not understand how her neighbour was allowed to
                   build the deck on the property line.
                4. The location of the deck invades her private space and causes serious
                   privacy issues.
                5. It was her opinion that the Development Officer should not have
                   approved the development permit for this deck without consulting with
                   her or notifying the affected neighbours.

                The Board then heard from Mr. Glenn Poliak, the Respondent, who made
                the following points:

                1. He obtained a development permit to build his garage to the property
                   line in 2008 and his garage is now used as a template for other garages
                   being developed in this area.
                2. The eavestroughs on the garage overhang the Appellant’s property
                   line.
                3. The uncovered deck was built in 2005 prior to the construction of his
                   garage.
                4. A lattice screen has been erected on a portion of the existing deck in an
                   attempt to provide some privacy for his neighbour.

                Mr. Poliak provided the following responses to questions:

                1. He assumed that he could build his deck to the property line based on
                   the development permit that was issued for his house.
                2. He built the deck himself and believed that a development permit was
                   not required due to the height of the deck.
                3. He only recently discovered that a development permit was required
                   for his deck because it was more than 2 feet in height above grade.
                4. His neighbours to the north and south have built to the property line.
                5. The house was built in 1980.

                At this point, the Presiding Officer clarified that a side setback of 1.2
                metres from the property line is required.

                The Board then deliberated on this issue.
SDAB-D-11-151                             3                             August 12, 2011

DECISION:

                   that the Board assume jurisdiction

REASONS FOR DECISION:


                1. Section 44.3(b) of the Edmonton Zoning Bylaw states that Platform
                   Structures may project into a required Setback or Separation Space
                   provided such projections do not exceed 0.6 metres into Setbacks or
                   Separation Spaces with a depth of less than 4.0 metres. Therefore, the
                   Development Officer should have concluded that a variance was required
                   for the proposed deck. The development permit should not have been
                   issued as a Class A Permit and affected property owners should have
                   received notice.
                2. Pursuant to Section 11.2(4) of the Edmonton Zoning Bylaw each
                   application for development must be considered independently and an
                   approval for one development (the Applicant’s house) cannot be applied to
                   another (the deck) without granting a new variance.
                3. Therefore the Board concludes that as stated in Section 685(3) of the
                   Municipal Government Act, the Development Officer misinterpreted the
                   provisions of the land use bylaw.

                The Board reconvened to hear evidence regarding the timing of the appeal.

                The Presiding Officer 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.

                Ms. Sabo provided the following information:

                1. She contacted the City of Edmonton Call Centre at 311 on April 8, 2011
                   regarding the issues with her neighbour’s deck.
                2. She was told by 311 that it was very busy and they would not be able to
                   get back to her for at least two weeks.
                3. She called again and was told that her neighbour had until May 9, 2011 to
                   comply.
                4. She contacted 311 again after May 9, 2011 and was advised that there was
                   no further information available and that they would require additional
                   time to investigate the matter.
                5. She called 311 again on June 1, 2011. She was told that they didn’t
                   understand and they would have to get someone from Planning and
                   Development to return her call.
SDAB-D-11-151                             4                            August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                6. She contacted 311 again on June 7, 2011 and was advised that someone
                    from the Planning and Development Department would call her back.
                7. She called 311 again on June 15, 2011 because no one returned her calls.
                8. She was connected to a Development Officer in Planning and
                    Development who apologized for not returning her call. She was advised
                    that her neighbour had applied for a permit for the deck and it would take
                    some time to process.
                9. She thought she would receive notice of the result of that application.
                10. She called 311 again on July 4, 2011. 311 asked the Planning and
                    Development Department to call her back and she was advised that the
                    development permit had been approved.
                11. She went to the Planning and Development Department on July 5, 2011
                    and then filed her appeal on the afternoon of July 5, 2011.
                12. She expected that the permit would be refused and some type of notice
                    would be sent to her.
                13. She spoke to Planning and Development on June 15, 2011 but was not
                    informed that the development permit had been approved.
                14. Even though she filed numerous complaints about the deck, the
                    development permit was approved without notice.

                The Board then heard from Mr. Poliak regarding the timing of the appeal:

                1. He received the approved development via regular mail but could not
                   provide details regarding the exact date on which it was received.

MOTION:

                that the Board assume jurisdiction

REASON FOR DECISION:

                The Board finds the following:

                1. Based on the evidence provided, the Appellant was notified of the
                   issuance of the development permit on July 4, 2011 and the appeal was
                   filed on July 5, 2011, within the allowable 14 days, pursuant to Section
                   686(1)(a)(i) of the Municipal Government Act.
SDAB-D-11-151                         5                              August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                The Board heard an appeal of the decision of the Development Authority
                to approve an application to construct a rear uncovered deck, existing
                without permits (4.26 metres by 3.15 metres by 0.92 metres high) located
                at 4142 - 38 Street NW. The subject site is zoned RPL Planned Lot
                Residential. The proposed development was approved with conditions
                and subsequently was appealed by an adjacent property owner.

                The Presiding Officer clarified that the regulations of the Edmonton
                Zoning Bylaw were amended on June 20, 2011, after the Development
                Officer approved this development permit. The Board will therefore have
                to apply the changes that were made to this appeal. The amendment was
                essentially a change in terminology, in that “Yard” was amended to
                “Setback”, meaning a distance between the property line and a building.
                However, the distances for the setbacks have not been changed. The
                minimum required Side Setback from the property line is 1.2 metres in the
                RPL Zone, Section 130.4(5)(e) of the Edmonton Zoning Bylaw. The deck
                is a Platform Structure which is allowed to project up to 0.6 metres into
                that setback, pursuant to Section 44.3(b) of the Edmonton Zoning Bylaw.
                Therefore the variance in the required Side Setback for the existing deck is
                0.31 metres.

                If the existing deck was pulled back from the south property line by 0.31
                metres it would comply with the development regulations for the RPL
                Zone.

                Ms. Sabo made the following points in support of the appeal:

                1. It was her opinion that this setback requirement should not apply on a
                   zero lot line.
                2. Her solution to this situation is to lower the deck, cut the deck back or
                   erect a wall along the fence line. However, she would not want her
                   neighbour accessing her yard to erect a wall.

                The Presiding Officer clarified that the existing deck does not comply with
                the Side Setback requirements. The Board could require the deck to be cut
                back to comply or grant a variance to allow the deck to remain and impose
                conditions.

                Ms. Sabo provided the following responses to questions:

                1. She would like a condition imposed requiring her neighbour to erect a
                   full, windowless wall along the full length of the deck.
SDAB-D-11-151                         6                             August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                2. The house has a blank wall and the deck should also have a blank wall
                   to the end of the deck to address her privacy concerns.
                3. It would be her preference to have a solid wall erected rather than
                   having the deck reduced in size to comply with the Side Setback.
                4. An easement agreement exists to allow her neighbour to access her
                   property for maintenance purposes.
                5. The deck has existed for a number of years.
                6. When she filed a complaint about the existing deck she was informed
                   that the deck did not have an approved development permit.
                7. She wouldn’t want her neighbour to have to work on the wall from her
                   yard.
                8. The wall would have to be a permanent structure.
                9. Photographs were submitted to illustrate the view of the deck from her
                   patio and inside her house.

                The Presiding Officer clarified that the Board could grant a variance to
                allow the deck to remain where it exists. However, a condition could be
                imposed requiring the erection of a solid blank wall to address the privacy
                concerns of the Appellant.

                The Board then heard from the Respondent, Mr. Poliak, who provided the
                following information:

                1. He could remove one joist on the south side of the deck and it would
                   then comply.
                2. The deck would then comply with the Side Setback requirement and
                   he would not have to erect a wall and the lattice could be removed.
                3. When they use their deck they focus on the north side of their yard.
                4. The lattice was erected to provide some privacy.
                5. They don’t want to infringe on their neighbour’s privacy.
                6. His preference would be to reduce the size of the deck so that it
                   complies with the Side Setback.

                Mr. Poliak provided the following responses to questions:

                1. The existing lattice work was built into the deck railing to provide
                   some privacy.
                2. Vegetation would provide privacy during the summer months but not
                   during the winter.
                3. The deck is accessed from the rear doors or from the side of the house.
                4. Ms. Sabo’s house is setback which restricts the sight lines.
SDAB-D-11-151                          7                              August 12, 2011

SUMMARY OF HEARING (CONTINUED):

                 Ms. Sabo made the following points in rebuttal:

                 1.     The photograph submitted illustrates her view from her property.

                 The Presiding Officer clarified that the Edmonton Zoning Bylaw states
                 that a deck can project 0.6 metres into a required Setback. The required
                 setback is 1.2 metres and therefore the deck can project 0.6 metres into the
                 1.2 metre setback. The only amendment that was made on June 20, 2011
                 was changing the term “Yard” to “Setback”. This requirement applies to
                 all lots, even lots that are zero lot line.

                 If the Board allows the appeal, Mr. Poliak would be required to reduce the
                 size of the deck to maintain the 0.6 metres between the deck and the
                 property line. The other option is to deny the appeal and place conditions
                 on the approved development permit.

                 Ms. Sabo indicated that she liked the idea of installing a long lattice wall
                 with ribbon weaved through the openings along the entire length of the
                 deck.

     DECISION:

                 that the appeal be ALLOWED IN PART and the Development
                 GRANTED and the excess of 0.31 metres in the maximum allowable
                 projection of a Platform Structure into the minimum required Side Setback
                 be permitted, subject to the following condition:

                 1. that the Applicant erect a solid parapet wall, 1.83 metres in height
                    measured from the floor of the deck, along the entire length of the
                    south edge of the deck to the satisfaction of the Development Officer.

REASONS FOR DECISION:

                 The Board finds the following:

                 1.     An uncovered deck is accessory to a Permitted Use in the RPL
                        Zone.
                 2.     Section 44.3(b) states that Platform Structures may project into a
                        required Setback or Separation Space provided such projections do
                        not exceed 0.6 metres for Setbacks or Separation Spaces with a
                        depth of less than 4.0 metres.
SDAB-D-11-151                              8                              August 12, 2011

REASONS FOR DECISION (CONTINUED):

                    3.      If the Applicant was required to reduce the size of the existing
                            deck to comply with the minimum required Side Setback, the
                            privacy concerns of the Appellant and most affected property
                            owner would not be resolved.
                    4.      Any alteration to the size of the existing deck will require a new
                            development permit.
                    5.      The condition imposed will mitigate the required variance in the
                            Side Setback requirement and address the privacy concerns of the
                            Appellant and the most affected property owner.”

          IMPORTANT INFORMATION FOR APPLICANT/APPELLANT

          The following information may not pertain to your specific situation.
          Should you have any questions, please do not hesitate to contact our
                               office at (780) 496-6079

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.

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.
SDAB-D-11-151                            9                           August 12, 2011

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 Planning and Development Department, located on the 5th Floor, 10250 – 101
      Street, Edmonton.

NOTE: Citizens can call 311, 24-hours a day, every day of the year for access to City of
      Edmonton information, programs and services.



                                                Mr. A. Zariski, Presiding Officer
                                                SUBDIVISION AND DEVELOPMENT
                                                APPEAL BOARD
cc:   E. Sabo

				
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