SDAB-D-11-148

Subdivision and
Development Appeal Board
Office of the City Clerk
Main Floor, Churchill Building
10019 – 103 Avenue NW
Edmonton, AB T5J 0G9
Telephone: (780) 496-6079
Fax: (780) 496-8175
DATE: 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 Semidetached 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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
REASONS FOR DECISION:
4
The Board finds the following:
August 12, 2011
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
REASONS FOR DECISION (CONTINUED):
August 12, 2011
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 5 th
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 5 th 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
Development Appeal Board
Office of the City Clerk
Main Floor, Churchill Building
10019 – 103 Avenue NW
Edmonton, AB T5J 0G9
Telephone: (780) 496-6079
Fax: (780) 496-8175
DATE: 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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
REASONS FOR DECISION (CONTINUED):
August 12, 2011 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.
The proposed development does not conform to the uses 5. 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 5 th
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
Development Appeal Board
Office of the City Clerk
Main Floor, Churchill Building
10019 – 103 Avenue NW
Edmonton, AB T5J 0G9
Telephone: (780) 496-6079
Fax: (780) 496-8175
DATE: 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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
DECISION:
3 August 12, 2011 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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
SUMMARY OF HEARING (CONTINUED):
August 12, 2011
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
SUMMARY OF HEARING (CONTINUED):
Ms. Sabo made the following points in rebuttal:
August 12, 2011
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
REASONS FOR DECISION (CONTINUED):
August 12, 2011
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 5 th
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 5 th
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