Application No. 115973357-001
An appeal from the decision of the Development Authority for permission to
construct an Accessory Building (Shed) (23.78 square metres) on Lot 11, Block 2,
Plan 0227756, located at 66 Windermere Drive SW was TABLED to May 2, 2012
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: April 18, 2012
121 Windermere Crescent NW APPLICATION NO: 115500376-001
EDMONTON, AB T6R 2H6 FILE NO.: SDAB-S-12-001
NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD
This appeal dated February 9, 2012, from the decision of the Subdivision Authority for permission
Create one additional Single Detached Residential lot
on Lot 6, Block 6, Plan 8021695, located at 121 Windermere Crescent NW, was heard by the
Subdivision and Development Appeal Board at its hearing held on February 23, 2012 and April 3,
2012. The decision of the Board was as follows:
March 8, 2012 Hearing:
“that SDAB-S-12-001 be TABLED to April 3 or 4, 2012 at the written
request of Legal Counsel for the Windermere Community League, the
verbal consent of legal counsel for the Appellant, and the verbal consent of
the representative of the City of Edmonton Subdivision Authority.”
April 3, 2012 Hearing:
“that SDAB-S-12-001 be raised from the table”
SDAB-S-12-001 2 April 18, 2012
SUMMARY OF HEARING:
“At the outset of the appeal hearing Ms. Jones disclosed that she has been
acquainted socially with both Mr. Laux and Ms. Agrios for a number of
years but she did not believe that this would affect her ability to provide a
fair and unbiased hearing. No one objected to Ms. Jones hearing the appeal
or to the composition of the remainder 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 notes that letters of objection were received from two
neighbouring property owners regarding the impact of the proposed
subdivision, copies of which are on file. The Board also notes that a
detailed written submission was provided by the Greater Windermere
Community League on March 29, 2012, a copy of which is on file.
The Board heard an appeal of the decision of the Subdivision Authority to
refuse an application to create one additional Single Detached Residential
lot located at 121 Windermere Crescent NW. The subject site is zoned RR
Rural Residential Zone and is located within the Windermere
Neighbourhood Area Structure Plan. The proposed subdivision was refused
due to the proposed parcel not meeting the minimum development
regulations or the general purpose of the zone, does not comply with the
intent of the Windermere Neighbourhood Structure Plan and will result in a
lot that is uncharacteristically small when compared with adjacent properties
on the Crescent.
The Board heard from Mr. Blair McDowell, representing the Subdivision
Authority. Mr. McDowell provided a written submission, including the
letter of refusal dated January 27, 2012, the tentative plan of subdivision, a
Zoning and Context map, the Windermere Neighbourhood Structure Plan,
Land Use Concept, Section 240 of the Edmonton Zoning Bylaw and
excerpts from the Windermere Neighbourhood Structure Plan, a copy of
which is on file. Mr. McDowell made the following points:
1. The subject site is located at the north end of Windermere Crescent.
2. The proposed parcel sizes do not meet the minimum required site area of
1.0 hectares pursuant to Section 240 of the Edmonton Zoning Bylaw.
The proposed lots are 0.22 hectares and 0.31 hectares, representing a
78% and 69% deficiency.
SDAB-S-12-001 3 April 18, 2012
SUMMARY OF HEARING (CONTINUED):
3. The proposed subdivision is located within the Windermere
Neighbourhood Area Structure Plan (NSP). The Windermere NSP
designates the subject site as existing Country Residential and explicitly
states that these lots are not intended to be further subdivided.
4. There was deliberate consideration in the planning process to ensure
transitional land uses adjacent to the existing Country Residential.
5. The Neighbourhood Structure Plan details the size and configuration of
the large lot residential zone that is to be developed adjacent to the
existing Country Residential. City Council has zoned this area as a
Direct Development Control District to ensure the provision of large
residential lots. The proposed subdivision does not comply with the
intent of the Windermere NSP.
6. The residents of this area were very involved in the development of the
Neighbourhood Structure Plan.
7. It is the responsibility of the Subdivision Authority to ensure that the
proposed subdivision would not unduly interfere with the amenities of
the neighbourhood or materially interfere with or affect the use,
enjoyment or value of the neighbouring parcels of land, pursuant to
Section 654 of the Municipal Government Act.
8. During the initial consultation process, 12 neighbours provided written
support for the proposed subdivision. However, 7 neighbours
subsequently rescinded their support and 71 additional letters of
objection were received.
Mr. McDowell provided the following response to a question:
1. There are currently only 4 or 5 houses on this Crescent with water
service although water service is expected for the remaining properties
sometime this year.
The Board then heard from Mr. Fred Laux, Legal Counsel, for the property
owners, Ahtesham and Sana Shirazi. Mr. Laux provided a detailed written
submission, including excerpts from the Municipal Government Act, a
decision from the Court of Appeal, maps, and drawings of the subject site
and signatures of support, a copy of which is on file. Mr. Laux made the
following points in support of the proposed subdivision:
1. Mr. Laux was surprised to learn that some of the neighbours had
rescinded their support for the proposed subdivision and he was not
aware that 71 letters of objection had been received by the Subdivision
SDAB-S-12-001 4 April 18, 2012
SUMMARY OF HEARING (CONTINUED):
At this point, the Board adjourned to allow administrative staff time to
photocopy the letters of opposition and provide copies to all parties in
attendance as well as the Board members.
When the Board reconvened, Mr. Laux made the following points:
1. Section 617 of the Municipal Government Act recognizes rights of
individual property owners in Alberta. While these rights are subject to
a clearly circumscribed overriding exception in favour of the greater
public interest, nowhere is it suggested that individual rights should be
overridden for a public interest.
2. Property owners have a fundamental freedom to enjoy their property.
3. Section 680 of the Municipal Government Act directs the Board to have
regard to any statutory plan. It was his opinion that while the Board
must consider the Windermere Neighbourhood Structure Plan, it is not
bound by the Plan.
4. It was his opinion that Section 240 of the Edmonton Zoning Bylaw
contains soft wording regarding further subdivision of the country
residential lots and it is therefore something that the Board could vary
according to the provisions of the Municipal Government Act. Further,
references to the Country Residential Estates (CRE) use wording such as
“expected” and … “not intended” which are soft admonition rather than
definite or binding wording.
5. It was his opinion that the Board could grant a variance to the minimum
required Site Area pursuant to the Edmonton Zoning Bylaw.
6. The shape and frontage of the subject lot make it unique in this area and
the proposed subdivision would recognize the unique characteristics of
7. It was his opinion that consideration of the objections of the neighbours
would set a dangerous precedent. The aerial photograph shows that all
of the other houses in this area are sited in the middle of the lot which
would therefore preclude any further subdivision of those lots.
8. The proposed subdivision would have a minimal impact because there is
no direct access between Windermere Crescent and Windermere Drive.
9. It was his opinion that the Board should only consider the concerns of
the four neighbours who reside directly across the street from the subject
10. Even with the proposed subdivision this lot will have a larger frontage
than the properties located across the street.
SDAB-S-12-001 5 April 18, 2012
SUMMARY OF HEARING (CONTINUED):
11. The houses on the east side of Windermere Crescent are newer than the
houses on the west side which were built in the 1970s.
12. It was his opinion that there is a “mixed bag” of both support and non-
support from neighbouring property owners which should not influence
the decision of the Board.
13. He reiterated that this is the only lot that could be subdivided in this area
and that the proposed subdivision would not detract from the
14. One of the neighbours who provided written support for the proposed
subdivision stated that this would enhance the neighbourhood.
15. It was his opinion that the 71 residents who oppose the proposed
subdivision, most of which do not live in the immediate neighbourhood,
would not be unduly impacted by the proposed subdivision and there is
no rational reason for the Board not to grant approval.
16. Mr. Laux reiterated that the Board is not bound by the Windermere
Neighbourhood Structure Plan, the residents will not be unduly affected
and the proposed subdivision is an effective use of land.
Mr. Laux provided the following responses to questions:
1. Section 680(2) of the Municipal Government Act speaks in general terms
and while the Board must have regard for the Neighbourhood Structure
Plan and the Edmonton Zoning Bylaw they are not bound by them.
2. The Board has the power to grant variances to the requirements of the
Edmonton Zoning Bylaw regarding the minimum required Site Area.
3. It was conceded that there is a difference between the subdivision of raw
land and developed land.
4. It was his opinion that the amenities of the area will not be affected even
though this lot is at a higher elevation than the lots across the street.
5. Nothing remains the same forever.
6. It was his opinion that the Board does not have enough evidence to
refuse the proposed subdivision which will not impact neighbouring
7. In response to one objection from a neighbouring resident, the proposed
subdivision will not create a sun shadowing affect on any of the
properties across the street because of the existing setbacks.
SDAB-S-12-001 6 April 18, 2012
SUMMARY OF HEARING (CONTINUED):
8. Mrs. Shirazi explained that her father originally owned the subject
property and recently sold it to her. It is a family tradition to live nearby
and look after older generations. The house was built 24 years ago. Her
father talked to the neighbours about the proposed subdivision and asked
them to sign a petition of support. Mrs. Shirazi could not explain why
some of the neighbours who originally signed in support had changed
9. Of the 19 residences on Windermere Crescent, five neighbours support
the proposed subdivision, no response was received from two property
owners, two expressed no opposition and ten property owners oppose
the proposed subdivision.
10. It was his opinion that the proposed subdivision will not create a
precedent in this neighbourhood and the other options which include the
development of a Garden Suite or a Mother-in-law Suite are not feasible
for the property owners.
The Board then heard from Mr. John Doyle, President of the Greater
Windermere Community League who referenced the written submission
provided to the Board, a copy of which is on file. Mr. Doyle made the
following points in opposition to the proposed subdivision:
1. It was his opinion that the intentions of the Appellants to keep the family
close are laudable but not realistic or relevant.
2. This is long term planning and it is difficult to predict what will happen
in the future.
3. The Appellants were aware of the objections of the other residents of
this area but considered the rest of their property unusable.
4. The slope and elevation of the subject lot are considerable and will
impact the neighbours who reside across the street.
5. Subdividing this lot will double the density and therefore alter the
residential character of the area.
6. It was his opinion that a house on the newly created lot will have to be
sited too close to the road which would not be characteristic of the
setbacks on other existing lots. This would directly impact the
immediately adjacent property and at least six neighbours who reside
across the street.
7. This lot is not unique, there are other lots in this area of a similar size
8. The frontage of this lot is 2 times the average, not 4 times the average as
stated by the Appellant.
SDAB-S-12-001 7 April 18, 2012
SUMMARY OF HEARING (CONTINUED):
9. It was his opinion that the needs of the Appellant could be addressed by
developing a Garden Suite or a Secondary Suite which are extensions of
the Principal Dwelling. This would be a more feasible solution that
would be controlled by the development requirements of the Edmonton
10. Once this site is subdivided, control is lost.
11. It was his opinion that the construction of a large house on the newly
created lot would greatly impact neighbouring property owners and
reduce property values in this area.
12. It was his opinion that all of the letters of opposition received from
residents in this area are important because approving this subdivision
would conflict with the Neighbourhood Structure Plan and affect areas
outside Windermere Crescent.
13. It was his opinion that approving this subdivision should be considered
as an amendment to the Neighbourhood Structure Plan.
14. The General Purpose of the Rural Residential Zone is not intended to
facilitate further rural residential development and subdivision.
15. The Community League was organized approximately 9 years ago to
consider security, servicing and preserve the character and integrity of
16. The Neighbourhood Structure Plan was created with the active
participation and unanimous approval of the community to prohibit the
subdivision of the Rural Residential and the transition lots adjacent to
the Rural Residential lots.
17. The conditions of the Neighbourhood Structure Plan form a “contract”
between the community, developers and the City to retain the character
of this area.
18. It was his opinion that approving this subdivision creates a conflict with
the Neighbourhood Structure Plan.
19. Mr. Doyle submitted a quote from Planning Law and Practice in Alberta,
3rd Edition, by F. Laux, Q.C. marked Exhibit D,
20. It was his opinion that the Neighbourhood Structure Plan and the
Edmonton Zoning Bylaw clearly demonstrate the intention of City
Council and the community not to allow the subdivision of rural
SDAB-S-12-001 8 April 18, 2012
SUMMARY OF HEARING (CONTINUED):
The Board then heard from Ms. Janice Agrios, Legal Counsel for the
Greater Windermere Community League. Ms. Agrios provided the
1. There is currently one Principal Dwelling on the site which could
support the development of one Garden Suite. If the subdivision is
allowed, there would be two Principal Dwellings and possibly two
Garden Suites which would double the density of this site.
2. A Garden Suite is a Discretionary Use in the RR Zone on which
conditions could be imposed.
3. Section 617 of the Municipal Government Act protects the rights of
individual property owners except to the extent that is necessary for the
overall greater public interest.
4. City Council approved the Neighbourhood Structure Plan in 2006 after
significant public participation from the residents of this area.
5. It was her opinion that approving the proposed subdivision would
undermine the integrity of the Neighbourhood Structure Plan (NSP) and
be equivalent to an amendment to the Neighbourhood Structure Plan.
6. The lots to the east have been zoned Direct Development Control
Provision to prevent further subdivision and to buffer the existing rural
residential lots in this area.
7. It was her opinion that Density is directly related to land use. The
proposed subdivision would increase the density which would therefore
be considered a change in land use which is outside the purview of the
8. These lots created by the proposed subdivision would be smaller urban
sized lots which are not characteristic of the existing large residential
lots in this area.
9. The Board is not bound by the Neighbourhood Structure Plan but must
have regard for it and provide good planning reasons for approving a
10. The lots on the east side of Windermere Crescent are higher and the
houses are setback further from the road.
11. A new house constructed on the newly created lot would be sited very
close to the road which is not characteristic of the existing setbacks.
12. The justification put forward by the Appellants for the proposed
subdivision could be addressed by the possible development of a Garden
Suite or a Secondary Suite on the property.
SDAB-S-12-001 9 April 18, 2012
SUMMARY OF HEARING (CONTINUED):
13. This would prevent possible problems in the future if the newly created
lots are sold.
14. Based on the information provided there are four other pie shaped lots in
this area, therefore this lot is not “unique” as argued by the Appellant.
15. While the Board is not bound by precedent, consistency is important. If
the Board approves the proposed subdivision it would be more difficult
to resist proposed subdivisions in the adjoining area.
16. The houses on the west side of Windermere Crescent are old. Future
subdivisions of these lots are therefore not out of the realm of
17. It was her opinion that the proposed subdivision is contrary to the
Neighbourhood Structure Plan and the Edmonton Zoning Bylaw and no
sound planning reasons were provided that would allow the Board to
consider the subdivision of this site.
Mr. McDowell stated the following:
1. The proposed subdivision does not comply with the intent of the
Windermere Neighbourhood Structure Plan or the regulations of the
Edmonton Zoning Bylaw which the Subdivision Authority must regard.
2. The Subdivision Authority provided conditions that should be imposed
if the subdivision is approved by the Board.
Mr. Laux made the following points in rebuttal:
1. He did note that in his opinion family circumstances are not relevant nor
a sound reason for approving the proposed subdivision.
2. It was his opinion that in the submission by Mr. Jones of the Community
Association, the first quote taken from the text of Planning Law and
Practice which references inter-municipal subdivision is not relevant
because the proposed subdivision is not an inter-municipal subdivision.
3. It was his opinion that the matter comes down to the rights of the
property owner versus the rights of the neighbourhood and there must be
a balance. The balance should be weighted in favour of the individual
land owner and the proposed subdivision should only be refused if it is
determined by the Board that the proposed subdivision would unduly or
materially affect adjacent property owners.
SDAB-S-12-001 10 April 18, 2012
that the appeal be DENIED and the decision of the Subdivision Authority
REASONS FOR DECISION:
The Board finds the following:
1. Pursuant to Section 240.1 of the Edmonton Zoning Bylaw, the
proposed subdivision does not comply with the intent of the Rural
Residential Zone which is to provide for Single Detached Residential
development of a permanent nature in a rural setting, generally
without the provision of the full range of urban utility services. The
Rural Residential Zone is intended to regulate rural residential
development within existing rural residential subdivisions that
existed prior to the passage of this Bylaw, and is not intended to
facilitate future rural residential development and subdivision, which
is contrary to the Municipal Development Plan.
2. Section 4.1.2 of the Windermere Area Structure Plan states that
Large Lot Residential (LLR) is established as a transitional land use
immediately east across from and abutting the country residential
estates of Windermere, Windermere Ridge, and Westpoint Estates
which are located along the western boundary of the Neighbourhood
Structure Plan. This land use will comprise single detached housing
and is designed to respect the local character and ambience of local
country residential estate living…. Under no circumstances will LLR
lots be further subdivided to allow for additional dwellings.
3. After extensive community involvement and unanimous approval by
the residents in this area, City Council amended and approved the
Windermere Neighbourhood Structure Plan in 2006.
4. The proposed parcel sizes do not meet the minimum development
regulations of the Rural Residential Zone, pursuant to Section
240.4(1) of the Edmonton Zoning Bylaw.
5. The proposed subdivision will result in parcels of land that are
uncharacteristically small when compared to adjacent properties on
6. The proposed subdivision will increase the density which in turn
changes the land use from Rural Residential.
7. Based on the evidence provided, the Board finds that this lot is not
the only oddly configured lot on Windermere Crescent and is
therefore not “unique” in character.
SDAB-S-12-001 11 April 18, 2012
REASONS FOR DECISION (CONTINUED):
8. Based on the information provided, the needs of the Appellants can
be achieved by exploring other development options for the site that
would have less of an impact on neighbouring property owners.
9. The Board notes that both letters of support and letters of opposition
were received from affected property owners.”
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
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.
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
SDAB-S-12-001 12 April 18, 2012
NOTE: Citizens can call 311, 24-hours a day, every day of the year for access to City of
Edmonton information, programs and services.
Ms. M. McCallum, Presiding Officer
SUBDIVISION AND DEVELOPMENT
cc: City of Edmonton Subdivision Authority – Attn: B. McDowell / S. Gerein
Frederick A. Laux, Q.C.
Janice Agrios, Kennedy Agrios LLP
John Doyle, Greater Windermere Community League
Mr. & Mrs. Hiruki