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					                               SDAB-D-12-077

                        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
to:

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:

MOTION:

                      “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:


MOTION:

                      “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
                   Authority.
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
                    the lot.
                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
                    site.
                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
                    neighbourhood.
                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
                   property owners.
                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
                    their minds.
                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
                   and shape.
                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
                    Zoning Bylaw.
                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
                    the area.
                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
                    residential lots.
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
                following information:

                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
                    Board.
                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
                    proposed subdivision.
                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
                    possibility.
                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

DECISION:

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

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
                        Windermere Crescent.
                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
     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.

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.
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
                                                APPEAL BOARD

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

				
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