MUNICIPAL GOVERNMENT BOARD  
In the Matter of Development Appeals filed by J. Agrios on behalf of C. Glassco and C. Link;  
P. and S. Stead; and P. Boyle (Appellants) under Part 17 of the Municipal Government Act being  
Chapter M-26 of the Revised Statutes of Alberta 2000 (Act).  
Citation: Glassco v City of Calgary (Development Authority) (RE: Kernick), 2022 ABMGB 1  
Date: January 13, 2022  
File Numbers: D21/CALG/C-007 & D21/CALG/C-008  
Board Order Number: MGB 001/22  
Before:  
Members:  
F. Wesseling, Presiding Officer  
J. Jones, Member  
D. Piecowye, Member  
Case Manager:  
K. Lau  
This is an appeal to the Municipal Government Board (MGB) from a decision of City of Calgary  
Development Authority (DA) respecting an application for a development permit affecting 66 New  
Street SE. The hearing was held by videoconference on May 25 - 27, 2021 after notifying interested  
parties. Further submissions were accepted until August 9, 2021.  
On June 2, 2021 the Municipal Government Board (MGB) changed to the Land and Property  
Rights Tribunal (LPRT) as a result of its amalgamation with three other boards under the Land  
and Property Rights Tribunal Act, SA 2020, c L-2.3. This order refers to the MGB as the appeal  
was filed prior to the name change.  
OVERVIEW  
[1]  
This concerns appeals against two Development Permits issued for two infill developments  
on a lot to be subdivided. A total of nine variances (three for one house with a secondary suite and  
six for the other house) had been granted for this discretionary use. The MGB determined that the  
developments and variances resulted in impacts but not to the extent that it unduly interfered with  
the amenities of the neighbourhood or materially interfered with or affected the use, enjoyment or  
value of neighbouring parcels of land and accordingly upheld the approval of the development  
permits.  
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REASON APPEAL HEARD BY MGB INSTEAD OF SDAB  
[2]  
is:  
Section 685(2.1) of the Act directs development appeals to the MGB when the subject land  
within the provincial “Green Area” as classified by the Minister responsible for the Public  
Lands Act, or  
contains or is adjacent to features of interest to the province a highway, body of water,  
sewage treatment, waste management facility, or historical site, or  
if the subject land is the subject of a licence, permit, approval or other authorization granted  
by the Natural Resources Conservation Board, Energy Resources Conservation Board,  
Alberta Energy Regulator, Alberta Energy and Utilities Board, Alberta Utilities  
Commission or the Minister of Environment and Parks.  
[3]  
In this case, this appeal is before the MGB because the subject land contains, is adjacent to  
or is affected by the following:  
Body of water:  
The Bow River is adjacent to the north portion of the parcel  
PROPOSAL  
[4]  
The two development permit appeals concern a proposal to build two homes on a lot to be  
subdivided prior to construction on 66 New Street SE in Calgary. The east development proposes  
(DP1578 and 007) a house and secondary suite (East House), and the west development proposes  
(DP1579 008) a house (West House).  
Figure 1: Proposed Development  
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Figure 2: Proposed Development Site Plan  
BACKGROUND  
[5]  
The proposed developments are two houses, one with a secondary suite (collectively the  
Proposed Development) located on 66 New Street SE in the City of Calgary (City). The lot has  
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not yet been subdivided to accommodate the developments. The subject property is adjacent to the  
Bow River to the north and fronts onto New Street SE in the Inglewood neighbourhood of Calgary.  
[6]  
The subject site is designated Residential Contextual One/Two Dwelling (R-C2) in the  
Land Use Bylaw (LUB) 1P2007. In this district the proposed uses Single Detached Dwelling  
(west) and Single Detached/Secondary Suite (east) are discretionary uses.  
[7]  
The proposed developments were conditionally approved by the City’s DA with several  
variances to the LUB.  
East House Conditions  
[8]  
The East House was approved subject to the following:  
Prior to Release Requirements  
The following requirements shall be met prior to the release of the permit. All requirements shall  
be resolved to the satisfaction of the Approving Authority:  
Planning  
1. Provide an executed and registered (on both affected titles) Private Maintenance Easements  
located on 68 New St SE as per approved plans.  
Subdivision  
2. Provide a copy of the new Land Title and Plan of Subdivision upon registration of the  
subdivision.  
3. The applicant is to provide written confirmation stating the proposed property lines as  
noted in the site plan are exactly the same as the actual property lines described by the new  
land Title of the Plan of Subdivision.  
Transportation  
4. Provide the executed and registered (on title) Mutual Access Easement Agreement between  
the subdivided lots as proposed under subdivision application SB2017-0119. The  
agreement and registerable access right of way plan shall be to the satisfaction of  
Transportation Planning.  
5. After the Development Permit is approved but prior to its release, remit a performance  
security deposit (certified cheque, bank draft) of $8,000 for the proposed infrastructure  
listed below within the public right-of-way to address the requirements of the Business  
Unit. The amount of the deposit is calculated by Roads and is based on 100% of the  
estimated cost of construction.  
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The developer is responsible to arrange for the construction of the infrastructure with their  
own forces and to enter into an Indemnification Agreement with Roads at the time of  
construction (the security deposit will be used to secure the work).  
Roads  
a. Construction of one (1) new driveway crossing on New Street SE.,  
b. Closure and removal of one (1) existing driveway crossing on New Street SE.,  
c. Rehabilitation of existing driveway crossings, sidewalks, curb and gutter, etc., should  
it be deemed necessary through a site inspection by Roads personnel.  
The attached document outlines the process for providing the security deposit, scheduling  
of work, responsibility for damages, and requesting a refund, if applicable.  
6. Remit payment (certified cheque, bank draft) for the proposed infrastructure listed below  
within the public right-of-way to address the requirements of the Business Units. The  
amount is calculated by the respective Business Unit and is based on 100% of the estimated  
cost of construction.  
The developer is responsible to coordinate the timing or the constriction by City forces.  
The payment is non-refundable.  
Roads  
a. Street lighting upgrading adjacent to New Street if deemed necessary through a site  
inspection by Roads personnel.  
Development Engineering  
7. Provide satisfactory evidence confirming that the required Maintenance and Repair Access  
(flood barrier) Easement is executed and registered on the applicable title(s); to the  
satisfaction of Real Estate and Development Services.  
Permanent Conditions  
The following permanent conditions shall apply:  
Planning:  
8. The development shall be completed in its entirety, in accordance with the approved plans  
and conditions.  
9. No changes to the approved plans shall take place unless authorized by the Development  
Authority.  
10. Upon completion of the main floor, proof of the geodetic elevation of the constructed main  
floor must be submitted to and approved by the Development Authority prior to any further  
construction proceeding. Email confirmation to [email protected].  
11. A Development Completion Permit is required prior to the development being occupied.  
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Subdivision:  
12. The development permit has been approved using the proposed parcel property lines for  
the purpose of determining compliance with the relevant rules of the Land Use Bylaw  
1P2007 for the proposed Single Detached Dwelling. Should the actual property lines be  
different than the proposed property lines, the development permit shall be revoked and a  
new development permit shall be required.  
Transportation:  
13. The developer shall be responsible for the cost of public work and any damage during  
construction in City road right-of-ways, as required by the Manager, Transportation  
Planning. All work performed on public property shall be done in accordance with City  
standards.  
14. The approved driveway(s) required for this development must be constructed to the ramp  
grades as shown on the approved Development Permit plans. Negative sloping of the  
Driveway within the City boulevard is not acceptable. If actual grades do not match the  
approved grades, the developer/owner shall be responsible for all costs to remove and  
reconstruct the entire driveway ramp in accordance with approved grades.  
15. Indemnification Agreements are required for any work to be undertaken adjacent to or  
within City rights-of-way, bylawed setbacks and corner cut areas for the purposes of crane  
operation, shoring, tie-backs, piles, surface improvements, lay-bys, utility work, +15  
bridges, culverts, etc. All temporary shoring, etc., installed in the City rights-of-way,  
bylawed setbacks and corner cut areas must be removed to the satisfaction to the Manager  
of Transportation Planning, at the applicant’s expense, upon completion of the foundation.  
Prior to permission to construct, contact the Indemnification Agreement Coordinator,  
Roads at 403-268-3505.  
Development Engineering:  
16. If during construction of the development, the developer, the owner of the titled parcel, or  
any of their agents or contractors becomes aware of any contamination,  
a. The person discovering such contamination shall immediately report the  
contamination to the appropriate regulatory agency including, but not limited to,  
Alberta Environment, Alberta Health Services and the City of Calgary (311).  
b. On City of Calgary lands or utility corridors, The City of Calgary, Environmental  
and Safety Management division shall be immediately notified (311).  
17. Construction of the foundation cannot occur during flood season (which is between May  
15 and July 15; each year).  
For further details, contact Water Resources River Engineering (directly) at 403-  
268-4683.  
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18. Single retaining walls 1.2 m in height or greater or terraced retaining walls 1.2 m in height  
or greater with a horizontal separation between walls of less than 3.6 m (3x height) require  
the approval of a Building Permit prior to construction.  
For retaining wall(s) that meet these criteria, the developer may either:  
a. Include the retaining walls with the Building Permit for the building, or  
b. Apply for a separate Building Permit for the retaining walls.  
It should be noted that the Building Permit for the building in site will not be released until  
the separate Building Permit for site retaining walls is approved.  
19. Portions of the development site is situated within the Floodway; and as such must conform  
to Land Use Bylaw 1P2007, Part 3, Division 3 (or 2P280 for areas downtown).  
20. Portions of the development site is situated within the Flood Fringe; and as such must  
conform to Land Use Bylaw 1P2007, Part 3, Division 3.  
21. No outdoor storage is permitted in the Floodway, as per Land Use Bylaw 1P2007 Part 3,  
Division 3.  
22. The developer/project manager, and their site designates, shall ensure a timely and  
complete implementation, inspection and maintenance of all practises specified in erosion  
and sediment control report and/or drawing(s) which comply with Section 3.0 of The City  
of Calgary Guidelines for Erosion and Sediment Control. Any amendments to the ESC  
document must comply with the requirements outlined in Section 3.0 of The City of  
Calgary Guidelines for Erosion and Sediment Control.  
23. The grades must match the grades indicated on the Development Permit approved plans.  
Upon a request from the Development Authority, the developer or owner of the titled parcel  
must confirm under seal from a Consulting Engineer or Alberta Land Surveyor, that the  
development was constructed in accordance with the grades submitted on the Development  
Permit.  
24. All rooftop drainage shall be controlled with eave troughs and downspouts that direct  
drainage to the street.  
25. No trees, shrubs, buildings, permanent structures or unauthorized grade changes are  
permitted within the utility rights-of-way.  
Parks:  
26. All construction is restricted to private land only; construction access is only permitted  
through existing driveways. At no point during construction are the natural areas adjacent  
to the Bow River to be disturbed.  
27. Prior to the commencement of any development activity or stripping and grading  
operations, the silt protection fencing shall be installed along the construction disturbance  
line within the northern property line, adjacent to the Bow River. This fencing is to be  
inspected and approved by the Parks Development Inspector at (403) 268-5325.  
28. Drainage from the development site into the adjacent natural area/Bow River is not  
permitted.  
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29. All lands below the high water mark (outside property line) are crown lands and for any  
work to be completed in this area, the applicant must have appropriate Provincial and  
Federal approvals under the Public Lands Act, Department of Fisheries and Oceans, the  
Navigable Waters Protection Act, etc.  
West House Conditions  
[9]  
The West House was approved subject to the following conditions:  
Prior to Release Requirements  
The following requirements shall be met prior to the release of the permit. All requirements shall  
be resolved to the satisfaction of the Approving Authority:  
Subdivision:  
1. Provide a copy of the new Land Title and Plan of Subdivision upon registration of the  
subdivision.  
2. The applicant is to provide written confirmation stating the proposed property lines as  
noted in the site plan are exactly the same as the actual property lines described by the new  
Land Title of the Plan of Subdivision.  
Transportation:  
3. Provide the executed and registered (on title) Mutual Access Easement Agreement between  
the subdivided lots as proposed under subdivision application SB2017-0119. The  
agreement and registerable access right of way plan shall be to the satisfaction of  
Transportation Planning.  
4. After the Development Permit is approved but prior to its release, remit a performance  
security deposit (certified cheque, bank draft) of $8,000 for the proposed infrastructure  
listed below within the public right-of-way to address the requirements of the Business  
Unit. The amount of the deposit is calculated by Roads and is based on 100% of the  
estimated cost of construction.  
The developer is responsible to arrange for the construction of the infrastructure with their  
own forces and to enter into an Indemnification Agreement with Roads at the time of  
construction (the security deposit will be used to secure the work).  
Roads  
d. Construction of one (1) new driveway crossing on New Street SE.,  
e. Closure and removal of one (1) existing driveway crossing on New Street SE.,  
f. Rehabilitation of existing driveway crossings, sidewalks, curb and gutter, etc., should  
it be deemed necessary through a site inspection by Roads personnel.  
The attached document outlines the process for providing the security deposit, scheduling  
of work, responsibility for damages, and requesting a refund, if applicable.  
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5. Remit payment (certified cheque, bank draft) for the proposed infrastructure listed below  
within the public right-of-way to address the requirements of the Business Units. The  
amount is calculated by the respective Business Unit and is based on 100% of the estimated  
cost of construction.  
The developer is responsible to coordinate the timing or the constriction by City forces.  
The payment is non-refundable.  
Roads  
b. Street lighting upgrading adjacent to New Street if deemed necessary through a site  
inspection by Roads personnel.  
Development Engineering  
6. Provide satisfactory evidence confirming that the required Maintenance and Repair Access  
(flood barrier) Easement is executed and registered on the applicable title(s); to the  
satisfaction of Real Estate and Development Services.  
Public Infrastructure  
7. After the Development Permit is approved but prior to its release, the landowner shall  
execute an Off-Site Levy Agreement for the payment of off-site levies pursuant to Bylaw  
2M2016. The off-site levy is based on a 2021 development approval date and was based  
on the following:  
Phase  
1
Description  
66 New Street SE  
Unit(s)  
New Single: 1  
Based on the information above, the preliminary estimate is $7,373.00.  
Should payment be made prior to release of the development permit, an Off-Site Levy  
Agreement will not be required.  
Include the completed Payment Submission Form, which was emailed to the  
applicant.  
Only certified cheques or bank drafts made payable to the City of Calgary are  
acceptable.  
Permanent Conditions  
The following permanent conditions shall apply:  
Planning:  
8. The development shall be completed in its entirety, in accordance with the approved plans  
and conditions.  
9. No changes to the approved plans shall take place unless authorized by the Development  
Authority.  
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10. Upon completion of the main floor, proof of the geodetic elevation of the constructed main  
floor must be submitted to and approved by the Development Authority prior to any further  
construction proceeding. Email confirmation to [email protected].  
11. A Development Completion Permit is required prior to the development being occupied.  
Subdivision:  
12. The development permit has been approved using the proposed parcel property lines for  
the purpose of determining compliance with the relevant rules of the Land Use Bylaw  
1P2007 for the proposed Single Detached Dwelling. Should the actual property lines be  
different than the proposed property lines, the development permit shall be revoked and a  
new development permit shall be required.  
Transportation:  
13. The developer shall be responsible for the cost of public work and any damage during  
construction in City road right-of-ways, as required by the Manager, Transportation  
Planning. All work performed on public property shall be done in accordance with City  
standards.  
14. The approved driveway(s) required for this development must be constructed to the ramp  
grades as shown on the approved Development Permit plans. Negative sloping of the  
Driveway within the City boulevard is not acceptable. If actual grades do not match the  
approved grades, the developer/owner shall be responsible for all costs to remove and  
reconstruct the entire driveway ramp in accordance with approved grades.  
15. Indemnification Agreements are required for any work to be undertaken adjacent to or  
within City rights-of-way, bylawed setbacks and corner cut areas for the purposes of crane  
operation, shoring, tie-backs, piles, surface improvements, lay-bys, utility work, +15  
bridges, culverts, etc. All temporary shoring, etc., installed in the City rights-of-way,  
bylawed setbacks and corner cut areas must be removed to the satisfaction to the Manager  
of Transportation Planning, at the applicant’s expense, upon completion of the foundation.  
Prior to permission to construct, contact the Indemnification Agreement Coordinator,  
Roads at 403-268-3505.  
Development Engineering:  
16. If during construction of the development, the developer, the owner of the titled parcel, or  
any of their agents or contractors becomes aware of any contamination,  
a. The person discovering such contamination shall immediately report the  
contamination to the appropriate regulatory agency including, but not limited to,  
Alberta Environment, Alberta Health Services and the City of Calgary (311).  
b. On City of Calgary lands or utility corridors, The City of Calgary, Environmental  
and Safety Management division shall be immediately notified (311).  
17. A Geotechnical Report; prepared by a qualified professional, under seal and permit to  
practice stamp; for review and acceptance by the City of Calgary; must be provided after  
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construction is complete. This is required to confirm the floodwall is structurally sound  
and impermeable.  
For further details, contact Water Resources River Engineering (directly) at 403-268-  
4683.  
18. The parcel shall be developed in accordance with the recommendations outlined in the  
above noted Geotechnical Report.  
19. The applicant and/or developer are responsible for coordinating any/all applicable City of  
Calgary inspections before, during and after constructing the foundation.  
For further details, contact Water Resources Infrastructure Delivery Inspector at 403-  
660-3997 OR Water Resources River Engineering at 403-268-4683.  
20. Construction of the foundation cannot occur during flood season (which is between May  
15 and July 15; each year).  
For further details, contact Water Resources River Engineering (directly) at 403-  
268-4683.  
21. Single retaining walls 1.2 m in height or greater or terraced retaining walls 1.2 m in height  
or greater with a horizontal separation between walls of less than 3.6 m (3x height) require  
the approval of a Building Permit prior to construction.  
For retaining wall(s) that meet these criteria, the developer may either:  
c. Include the retaining walls with the Building Permit for the building, or  
d. Apply for a separate Building Permit for the retaining walls.  
It should be noted that the Building Permit for the building in site will not be released until  
the separate Building Permit for site retaining walls is approved.  
22. Portions of the development site is situated within the Floodway; and as such must conform  
to Land Use Bylaw 1P2007, Part 3, Division 3 (or 2P280 for areas downtown).  
23. Portions of the development site is situated within the Flood Fringe; and as such must  
conform to Land Use Bylaw 1P2007, Part 3, Division 3.  
24. No outdoor storage is permitted in the Floodway, as per Land Use Bylaw 1P2007 Part 3,  
Division 3.  
25. The developer/project manager, and their site designates, shall ensure a timely and  
complete implementation, inspection and maintenance of all practises specified in erosion  
and sediment control report and/or drawing(s) which comply with Section 3.0 of The City  
of Calgary Guidelines for Erosion and Sediment Control. Any amendments to the ESC  
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document must comply with the requirements outlined in Section 3.0 of The City of  
Calgary Guidelines for Erosion and Sediment Control.  
26. The grades must match the grades indicated on the Development Permit approved plans.  
Upon a request from the Development Authority, the developer or owner of the titled parcel  
must confirm under seal from a Consulting Engineer or Alberta Land Surveyor, that the  
development was constructed in accordance with the grades submitted on the Development  
Permit.  
27. All rooftop drainage shall be controlled with eave troughs and downspouts that direct  
drainage to the street.  
28. No trees, shrubs, buildings, permanent structures or unauthorized grade changes are  
permitted within the utility rights-of-way.  
Parks:  
29. All construction is restricted to private land only; construction access is only permitted  
through existing driveways. At no point during construction are the natural areas adjacent  
to the Bow River to be disturbed.  
30. Prior to the commencement of any development activity or stripping and grading  
operations, the silt protection fencing shall be installed along the construction disturbance  
line within the northern property line, adjacent to the Bow River. This fencing is to be  
inspected and approved by the Parks Development Inspector at (403) 268-5325.  
31. Drainage from the development site into the adjacent natural area/Bow River is not  
permitted.  
32. All lands below the high water mark (outside property line) are crown lands and for any  
work to be completed in this area, the applicant must have appropriate Provincial and  
Federal approvals under the Public Lands Act, Department of Fisheries and Oceans, the  
Navigable Waters Protection Act, etc.  
Public Infrastructure:  
33. Pursuant to Bylaw 2M2016, off-site levies are applicable.  
34. After approval of the Development Permit but prior to issuance of a Development  
Completion Permit or any occupancy of the building, payment shall be made for off-site  
levies pursuant to Bylaw 2M2016. To obtain a final estimate, contact the Public  
Infrastructure Coordinator, Calgary Approvals Coordination at 403-268-6739 or email  
[10] Three parties appealed the East House development, and two parties appealed the West  
House.  
[11] After the hearing, the MGB panel asked the parties for additional written submissions on  
how section 687(3)(d) of the Act should be interpreted having regard for previous authorities,  
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including Alberta Courts and how this interpretation should be applied to the facts of the subject  
cases.  
ISSUES  
[12] In all cases, the legislation requires the MGB to address whether a proposal complies with  
the Act, the Regulation, the Land Use Bylaw (LUB), any statutory plans, and the South  
Saskatchewan Regional Plan, which is the applicable Alberta Land Stewardship Act (ALSA)  
regional plan, (see section 687(3) and 618.3 of the Act). In this particular case, the parties focused  
on the following issues:  
1. Does the Proposed Development meet the statutory plans?  
a. Does it meet the Municipal Development Plan (MDP)?  
b. Does it meet the Area Redevelopment Plan (ARP)?  
c. Does the proposed development meet the Infill Guidelines?  
2. Because the Proposed Development is in the Bow River Floodway and Flood Plain,  
will it negatively impact flood protection?  
3. Is it appropriate to vary standards in the LUB and will the following nine variances  
(three for the East and six for the West Houses) unduly interfere the amenities of the  
neighbourhood and/or materially interfere with the use, enjoyment or value of  
neighbouring parcels of land?  
East House  
a. LUB 436: Side property line setback 0.08 metres vs. 1.2 metres or 1.12  
metre variance for the garage which is 6.7 metres (East House Side Yard  
Setback);  
b. LUB 438: Building Height 49.80 or a 1.43 metre variance (East House  
Height Variance); and  
c. LUB 341: Driveway width is 1.91 metres wide vs. 3.0 metres or a 1.09  
metre variance (East House Driveway Variance).  
West House  
a. LUB 435: Building setback from the front property line 4.45 metres vs 5.12  
metres or a 0.67 metre variance (West House Front Setback);  
b. LUB 336: Eaves projecting into front setback area 1.28 metres vs 0.6  
metres or a 0.68 metre variance (West House Front Projection);  
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c. LUB 436: Side property line setback 0.08 metres vs. 1.2 metres or a 1.12  
metre variance for the length of the garage which is about 6.7 metres (West  
House Side Yard Setback);  
d. LUB 438: Building Height 49.60 or a 1.4 metre variance (West House  
Height Variance);  
e. LUB 360(2) Building Height on a Sloped Parcel. Plans indicate a portion of  
the building within the maximum building height chamfer;  
f. LUB 341: Driveway width is 1.91 meres wide vs. 3.0 metres or a 1.09 metre  
variance (West House Driveway Variance).  
SUMMARY OF THE DA’S POSITION  
[13] The DA explained the background, history and timeline of the application. The DA used  
air photos and current photos to explain the context of the subject parcel and area.  
[14] There are several levels of plans and bylaws that apply to the subject parcel. Firstly, there  
are the provincial planning documents and the intermunicipal plan, which align with the City’s  
Municipal Development Plan (MDP). The Inglewood Area Redevelopment Plan (ARP) and Land  
Use Bylaw (LUB) align with the MDP; other non statutory documents also align with the MDP,  
such as the Low Density Residential Guidelines for Established Communities (Infill Guidelines),  
Policy to Guide Discretion for Secondary Suites and Backyard Suites and Calgary River Valleys  
Plan.  
[15] The MDP’s objective in s. 2.3.1 Housing includes ensuring “a choice of housing forms…”  
and its policies provide for a “wide range of housing types, tenures (rental and ownership) and  
densities to create diverse neighbourhoods that include (i) a mix of housing types…” . In the  
General Policies for Developed Residential Area (s. 3.5.1) the Policies are “unique to the inner  
City Area” and the Land Use Policies:  
Recognize the predominantly low-density residential nature of Developed  
Residential Areas and support retention of housing stock or moderate  
intensification in a form and nature that respects the scale and character of the  
neighbourhood. Local commercial development within residential areas, that is of  
a scale and intensity that supports residents’ commercial needs is supported.  
[16] The ARP states “There is a clear need to increase Inglewood’s population” (s. 2.1) and the  
Prime Objective in s. 2.2 is stated as “encourage the construction of more housing to increase the  
population. However, the policies in s. 2.3.2 further state that “new residential development  
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should respect the surrounding housing and contribute to an attractive streetscape.” With respect  
to Infill Housing the ARP explains  
New narrow lot housing (infill) has been built in Inglewood as in other inner city  
communities. This type of housing has been very controversial in several  
communities because it often entails the constriction of two homes on a site which  
originally accommodated a single bungalow. The new homes are usually narrower,  
taller and extend much further back in the yard than the adjacent older homes  
causing a variety of shadowing, privacy, and streetscape impacts.  
City Council has adopted a number of measures designed to ensure the opportunity  
for public review and appeal of infill housing applications and decisions. Generally  
the quality of infill housing being constructed in the inner city is very high and the  
new buildings are often replacing deteriorated houses in the community.  
[17] The LUB Residential – Contextual One/Two Dwelling (RC2) District’s purpose “is  
intended to accommodate existing residential development and contextually sensitive  
redevelopment in the form of Duplex Dwellings, Semi-detached Dwellings, and Single Detached  
Dwellings in the Developed Area. The DA explained “contextual” is generally used to describe  
sensitive development.  
[18] The Infill Guidelines are intended to establish general guidelines and achieve a high  
standard of design and development and to provide an evaluation tool for the City in discretionary  
approvals and assist the community and residents in their review of applications. The Infill  
Guidelines are not intended to restrict design flexibility or creativity, but rather to ensure  
contextually sensitive development and avoid problems commonly associated with development  
in an established neighbourhood.  
[19] The Calgary River Valleys Plan is a non-statutory document that was first adopted in 1983.  
The Flood Rules and flood mapping address a 1:100 flood event while the flood of 2013 was a  
1:75 flood event. In 2014 Council incorporated flood rules into the MDP (s. 4.4) and the LUB was  
amended adopting stricter rules. Further, a comprehensive approach for flood risk reduction  
measures for this parcel include the Inglewood Flood Barrier (completed in 2008), Ghost Reservoir  
Agreement (in place), Glenmore Gate Upgrade (completed 2020) and the Springbank Off Stream  
Reservoir (planning). City administration is working with the province to develop new flood maps  
and the designated flood level for the subject area is proposed to be lower than the current  
elevation. The subject parcel will remain in the Flood Fringe.  
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[20] The proposed development complies with the LUB flood mitigation rules. The  
developments have sewer back flow valves indicated on basement floor plans and the mechanical  
and electrical are above the flood level. As well, there are other design measures that have been  
incorporated to mitigate flood risks. The DA explained the Flood Rules in the LUB apply to both  
permitted and discretionary use developments. When developments are adjacent to infrastructure,  
in this case the Inglewood Flood Barrier, the applications are circulated to River Engineering  
department and conditions were applied as recommended. Applications are also circulated to River  
Engineering when the applications are contrary to policies or require a relaxation of flood rules –  
but neither of these apply in this case. It was only sent to River Engineering because of the flood  
barrier.  
[21] The Inglewood Flood Barrier was completed in 2008 and is a combination of berms and  
walls. Berms are typically raised to a required elevation and have a compacted clay core. The  
Floodwall is made from concrete with an extended footing and compacted clay blanket.  
Compacted clay increases the seepage paths during high groundwater/flooding, therefore delaying  
and reducing groundwater seepage and ponding that will occur in the community.  
[22] The City’s River Engineering Department worked with the Applicant to ensure there is an  
acceptable space between the floodwall and foundation for maintenance and repairs; proper  
backfill would be used so the clay blanket will remain impermeable and sealed to the foundation  
to mitigate seepage. Further, the works will be inspected by the City and approved by an  
independent geotechnical engineer when complete.  
[23] There will be easements for the flood barrier registered on title to allow maintenance and  
repairs to the floodwall and flood berm as well as access between the proposed buildings. The  
easements between each landowner will allow the City to have access to the assets to ensure they  
continue to function as intended. Conditions are included in the approval with respect to the Flood  
Barrier (for example see condition 6, 17, 19 and 20 of the approval for C-008). As well, there are  
advisory conditions included which outline the LUB rules and indicate best practices.  
[24] The planning analysis considered Building Mass as per the Infill Guidelines (s. 4.4) which  
require “new development should respect the existing scale and massing of its immediate  
surroundings”. In this case, the DA was satisfied the proposed buildings, while taller, are not  
inconsistent with the scale and context of the street. The proposed setbacks fit within the context  
of New Street.  
[25] In this case the development plans indicate a building setback of 4.45 m (-0.67m) from the  
front property line; however, the eaves project 1.28m (+0.68m) into the front setback area. The  
Infill Guidelines explain that most established communities have rear lanes and that front  
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driveways can detract from the visual character of the street and may result in front yards that are  
characterized by parked cars and do not promote a street friendly appearance. In this case, while  
there will be an additional garage and driveway, the two developments will share a driveway and  
the garages are turned to lessen the visual impact on the street. The LUB states that driveways are  
normally 3.0 m in width and the plans indicate each driveway will be 1.91 m (-1.09 m).  
[26] Side yard setbacks are required to provide unobstructed access to the exterior from the front  
to the rear of the house. Normally 1.2 m is required; however, the plans indicate a building setback  
between the garage and west side property line would be 0.08 m (-1.12 m). There will be free and  
clear access to the rear between the developments. Rear setbacks allow for outdoor activity and  
maintain the pattern of rear amenity space typical of the surrounding community (Infill  
Guidelines).  
[27] Building depth should respect the building depth of existing adjacent developments and is  
intended to decrease the negative impact of mass on neighbouring homes with respect to  
shadowing and privacy. As well, the placement of windows should respect privacy (slide 64 of  
75).  
[28] The DA did not provide submissions on the additional information requested by the MGB.  
SUMMARY OF APPLICANT’S POSITION  
[29] The Applicant requests the MGB confirm the development permits as issued by the DA.  
The proposed developments are compatible with the surrounding land uses, and consistent with  
the purpose and intent of Part 17 of the Act, the applicable statutory plans and planning and  
development policies, and the purpose and intent of the applicable land use district. The variances  
sought by the Applicant will not interfere with the amenities of the neighbourhood, or interfere  
with or affect the use, enjoyment or value of neighbouring parcels of land.  
[30] The development permits were issued by the DA in accordance with s. 642(2) of the Act,  
which provides that a DA may issue a development permit for discretionary uses and the variance  
authority set out in the LUB.  
[31] The applicable statutory plans in the subject case are the MDP and the Inglewood ARP.  
The MGB is not required to comply with or have regard to the Low Density Residential Housing  
Guidelines for Established Communities referenced in the notices of appeal; however, the MGB  
may consider them a relevant planning consideration.  
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[32] The proposed development is based on a thoughtful design which respects existing  
development in the area, while enhancing the character of the neighbourhood. The design evolved  
over time based on community consultation, and the Applicant’s consideration and application of  
best practices and guiding principles for design, both generally and with respect to New Street and  
the subject site.  
[33] The concerns raised by the Appellants have been thoroughly canvassed, considered and  
addressed. Many of the design features of the proposed development are a direct result of feedback  
received from neighbouring landowners. The proposed development enjoys considerable support  
from the community, as demonstrated by the letters of support and presentations at the hearing.  
[34] The variances sought by the Applicant do not create an undue or material interference,  
within the meaning of s. 687(3)(d) of the Act. The variances are required to accommodate design  
features intended to enhance the compatibility of the proposed development with the  
neighbourhood, ensure on-going access to and maintenance of flood management features, and  
contribute to a pedestrian friendly and attractive streetscape.  
[35] All developments have potential impacts, both positive and negative. The purpose of Part  
17 of the Act is to balance individual rights and the public interest so as to “achieve the orderly,  
economical and beneficial development, use of land”. The proposed development strikes the  
appropriate balance and should be approved.  
New Street Character and Context  
[36] New Street was created in 1906 and contains predominantly single family houses though  
the houses range in size. New Street is an important active mobility corridor as it presents a rare  
interruption to the Bow River Pathway system. The vast majority of pathway users take the street  
instead of using the much longer pathway bypass.  
[37] The flood berm was started in 1993 and completed in 2012 and was successful in protecting  
the community in 2013. The berm consists of a mix of walls and earthen berms that have been  
landscaped to different degrees by individual affected properties. It is a key feature of the  
neighbourhood that must be preserved and protected.  
[38] New Street presents contextual challenges due to the varied size and proportion of its lots.  
Some parcels back directly onto the Bow River and are fairly large, while others back onto other  
lots and are small. The Applicant’s goal has been to design houses that respect both the value of  
the larger lots but also the scale of the smaller lots.  
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[39] The Applicant identified the following principles and best practices in designing the  
development:  
1. Automobile Interface: No garage doors/driveway pads fronting the street; retain on-street  
parking.  
2. Human Interface: Front doors, patios/porches, & smaller scale buildings facing the street  
3. Street to Stream: Mitigate hardscaping with rain gardens and possibly green roofs.  
4. Affordable Rental Retention: Retain the affordable rental that 66 New Street has offered  
the street for decades.  
5. Berm Access: Reverse redevelopment trend of losing berm access by securing berm access  
6. Aging in Place: Address the multi-generational and aging-in-place needs of the community  
through redevelopment.  
[40] While many options were considered, the Applicant decided the side by side subdivision  
was best so as to allow both parcels access to the river. Instead of front facing double garages  
which would not be desirable for the street interface and would not be a positive contribution to  
the walkability and pedestrian friendliness that characterizes New Street, the proposed  
development has the garages facing each other with a common driveway. To achieve this, the  
design proposes a shared driveway 3.84 m in width at the front property line and a zero-lot-line  
relationship for a portion of the garages with the adjacent property lines. The proposed layout is a  
unique and viable way to provide the density and associated parking required on this parcel without  
compromising the curb appeal and walkability of the street.  
[41] The next concern raised was the depth of the house, and in response the Applicant reduced  
the length significantly. The lost square footage was recovered by adding a third floor. However,  
the portion of the house that projects closest to the street and pedestrian realm are only two storeys  
on the east and a single storey on the west. This creates a modest pedestrian-friendly curb presence  
at the street that is in keeping with the scale of the original houses.  
[42] The roof lines have been kept to the low slope of 3:12, typical of Prairie Style houses and  
well-suited against the varied architectural aesthetic on New Street.  
[43] The house designs feature unobstructed side yards between the houses, providing 8 feet of  
clear space in the event that emergency access by personnel and/or equipment is required to the  
Bow River or to the Inglewood Flood Protection Berm. A mutual access agreement will be  
registered at Land Titles Office against both properties to ensure this access corridor is preserved  
and accessible indefinitely.  
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[44] It was a goal of the proposed development to provide two new single detached dwellings  
while also replacing the existing rental units on a one-for-one basis with the inclusion of secondary  
suites. This goal has been achieved on the east parcel with the suite above the garage, and the west  
unit has been designed to be able to accommodate a similar secondary suite in the future subject  
to the required approvals.  
[45] With respect to aging in place, both houses can accommodate elevators and both houses  
can be accessed via the berm ramp to the rear.  
[46] The proposed development is thoughtfully designed with regard not only to respecting but  
enhancing the character of the neighbourhood. The variances sought are minor in nature, and the  
design of the Proposed Development has evolved over time to respond to community concerns,  
and to maximize compatibility, parcel layout, and the privacy of neighbouring landowners. Many  
elements of the massing and design of the Proposed Development are in direct response to these  
considerations.  
[47] The variances should be considered in context, taking into account factors such as the  
overall design of the proposed development, rationale for the variance and the steps to minimize  
or address any potential impact or interference. The relevant question is not whether the  
development has any impact, as all development will have impacts whether or not variances are  
required. The test is more focused whether the variance sought constitutes an undue or material  
interference and must be applied in the context of the legislative and planning framework.  
[48] The proposed variances to the front and side yard setback significantly enhance the design,  
compatibility, and function of the development. The reduced front yard setback decreases the  
building depth which minimizes the impact of the development on neighbouring landowners’  
privacy and view and decreases light obstruction. The reduced front setback also creates better  
street interaction and allows two compliant parking stalls.  
[49] The variance with respect to the side property line setbacks does not extend the entire  
length of the buildings, and throughout the design process was reduced from 9.6 metres to 6.7  
metres. The Applicant proposes to provide additional amenity areas to neighbouring properties  
along the portion of the side property line where the setback is not reduced. The secondary suite  
that was initially proposed above the west residence was removed, to reduce the impact on the  
neighbouring property.  
Applicable Statutory Plans and Infill Guidelines  
[50] The Applicants agree that the Proposed Development must comply with the applicable  
statutory plans. The Infill Guidelines are a relevant planning consideration but do not bind the  
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MGB. The requirement set out in the ARP is for the Infill Guidelines to be “considered” (ARP,  
Policy 2.4.8). In any event, the Applicant submits the Proposed Development is fully consistent  
with the guidelines. The Infill Guidelines identify they are a “supplementary guide to the Land  
Use Bylaw and to any relevant Area Redevelopment Plans”: the Guidelines are “not intended to  
prescribe rigid rules or propose a specific design solutions, which could bring about a homogenous  
appearance to Calgary’s Established Communities” (ARP, Policies 2.3.2 and 2.3.6).  
Flood Protection  
[51] The Appellants argue that the Proposed Development will interfere with the integrity of  
the Inglewood Flood Protection Berm, which is a critical flood protection feature. The basis for  
the Appellants’ speculation appears to be that no engineering reports have been provided; however,  
the City has granted permission to construct portions of the Proposed Development within the  
easement area. The applications were extensively reviewed by the City’s River Engineering  
department and found to be satisfactory.  
[52] There are multiple conditions of approval attached to development permits for the  
Proposed Development which address flood protection and mitigation measures. In addition, the  
Development Permit for the west house specifically requires:  
17. A Geotechnical Report; prepared by a qualified professional, under seal and  
permit to practice stamp; for review and acceptance by the City of Calgary; must  
be provided after construction is complete. This is required to confirm the floodwall  
is structurally sound and impermeable.  
18. The parcel shall be developed in accordance with the recommendations outlined  
in the above noted Geotechnical Report.  
[53] A key element of the Proposed Development is the Maintenance and Repair Access (Flood  
Barrier) Easement (Flood Barrier Easement) located between the two houses, and which is  
required to be registered against title to the lands. The Flood Barrier Easement will ensure access  
to the Flood Protection Berm for the purpose of maintenance, and is sufficiently wide (8 feet) to  
allow access by emergency vehicles and construction vehicles and equipment.  
[54] The appreciable width of the Flood Barrier Easement would not be possible were it not for  
the configuration of the Proposed Development. Two narrower flood barrier easements (for  
example, a 4 foot wide easement to the east of the east house and a 4 foot wide easement to the  
west of the west house) would be significantly less valuable, in terms of access to and maintenance  
of protection of the Flood Protection Berm. This consideration informed a number of the design  
features of the Proposed Development.  
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[55] The Proposed Development rear yard setback is much greater than the minimum required  
by the LUB as a result of consultation with the community. However, this reduction of the rear  
yard projection requires the additional height to recover the square footage from reducing the rear  
yard projection the square footage is consistent with existing development in the neighbourhood.  
The Applicant noted the requested variances to the height requirement (1.4 and 1.23 m) were  
considered compatible with the majority of the 2-2.5 storey dwellings in the area.  
[56] The reduced rear yard projection also results in the need for a small variance to the front  
property line. The effect of this reduction is mitigated by reduced height of the front portion of the  
house and the streetscape design features of the Proposed Development which present an attractive  
front. When viewed in context the proposed front yard setback is consistent with surrounding  
development.  
[57] The reduced side property line setbacks are necessary in order to accommodate the wider  
flood barrier easement which is a key feature of the development.  
[58] Mr. Glassco’s concerns regarding the west side property line setback (reduced to 0.0  
metres) appear to arise largely as a result of the location of his carport, which is itself a zero lot  
line development. Mr. Glassco has been permitted to benefit from zero lot line development, and  
maximize the usable area of his property. This should not automatically preclude a neighbouring  
landowner from the same benefit. The “tunnel effect” and other alleged issues Mr. Glassco raises  
in his submissions are a result as the location of his carport as much as they arise from the location  
of the Proposed Development.  
[59] Mr. Glassco notes that the roof of the carport was not built to withstand snow loads, and  
cites drainage and maintenance issues. However, Mr. Glassco is not entitled or permitted to  
discharge snow, water, or other materials or drainage from his carport onto the lands to the east,  
nor is he entitled to enter on to the lands to the east to maintain his carport. These are issues Mr.  
Glassco is required to address within the boundaries of his own property. The side façade of the  
proposed west house which abuts the west property line will be stucco, a maintenance free  
material.  
[60] Any loss of mature trees associated with this mature development is sufficiently  
compensated for by other landscaping and design features of the Proposed Development.  
Post hearing submissions  
[61] Section 687(3)(d) sets out the test for determining whether a variance should be allowed.  
Subsections 687(3)(d)(i)(A) and (B), require the MGB to determine whether the proposed  
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development will either 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. To find  
the test under s. 687(3)(d)(i) is not met, the MGB must have actual evidence of interference.  
[62] Additionally, mere evidence of any interference is not sufficient to support a finding that a  
variance cannot be issued under 687(3)(d). Section 687(3)(d)(i)(A) asks whether the proposed  
development “unduly” interferes and section 687(3)(d)(i)(B) requires “material” interference. The  
words “unduly” and “material” are important and should not be ignored. The MGB is required to  
weigh all the evidence before it and determine whether the test in s. 687(3)(d)(i) is met.  
[63] None of the variances requested will have undue or material impacts on the amenities of  
the neighbourhood or the value, use and enjoyment of neighbouring properties. The front yard  
setback is consistent with the setbacks of neighbouring developments and in keeping with context  
of the neighbourhood. Further, the impact is mitigated by reduced height at the front. Similarly the  
proposed height, is compatible with other 2 or 2 ½ storey houses in the area, and there is no  
evidence to show the variance will cause any undue or material interference. With respect to side  
property line setbacks, they allow the proposed development to accommodate a flood barrier  
access easement, which is a benefit to the area; further, the objections concerning the Glassco  
property result largely from the location of the existing carport to the west, which itself has a zero-  
lot line configuration.  
SUMMARY OF AFFECTED PARTIES’ POSITIONS  
Parties In Support of the Appeal  
D. Bowles and G. Kerr  
[64] The primary concern raised is with the Flood Barrier and the impact the development will  
have on the flood protection for the Inglewood community and their property. It is noted the Access  
Easement Agreement on the subject property is different than the Easement and Restrictive  
Covenant Agreement that was imposed on the Bowles/Kerr property which is on the same berm.  
Ms. Bowles and Mr. Kerr question why the proposed development was granted approval to  
construct a foundation and change grading in the Access Easement Area when they were not  
allowed to plant a tree in the same area on their property.  
[65] The proposed development should not be allowed to encroach the Berm Easement Area -  
the Inglewood Flood Barrier is vital to the protection of the Inglewood community and protecting  
existing flood infrastructure within the City is critical.  
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R. Griebel and R. Harvey  
[66] The greatest concern Ms. Griebel and Mr. Harvey have with the proposed development is  
the impact the development may have on the flood barrier, which would greatly affect the larger  
community.  
[67] Recognizing that Inglewood was declared as a heritage district in 1995, one of the key  
tenets for the Inglewood Design Guidelines was that “Architecture and landscape design should  
respect the existing urban scale and character of Inglewood, and be inspired by local climate,  
topography, history and Building practice.” The proposed development’s height exceeds  
regulation; its massing is equivalent to a three-story apartment building; and its banal design does  
little to contribute to the historic character of the street. Additionally, it will seriously impact the  
integrity of the house on the west which was designed by a nationally renowned architect and  
city planner, Jack Long, who was instrumental in revitalizing the community.  
[68] The environmental benefits of urban greenspaces are well known, including greenhouse  
gas reduction, storm water control, and biodiversity conservation. The proposed development will  
reduce the greenspace on the street and will result in the removal of large mature trees on both the  
west and east border of the site. Additionally, the massing will result in loss of sunlight for all  
properties close to the development. From their residence, which is three houses east, they will  
have a view of a 33.3 foot wall from their backyard, rather than the current view of trees and  
natural light which are valued in a north facing yard.  
[69] Overall, while a new housing development on the subject site is welcomed, the proposed  
design is not suitable for a 66 foot wide lot, and does nothing to contribute to the safety, character,  
scale and environmental well-being of this historic neighbourhood.  
S. Gruetzner  
[70] Ms. Gruetzner is the owner and resident of 31 New Street SE and a professional Landscape  
Architect. She supports the appeal in its entirety for all the reasons highlighted in the notice of  
appeal and is concerned the proposed development will dramatically alter the streetscape of New  
Street.  
[71] In Ms. Gruetzner’s professional opinion, New Street SE is a Cultural Landscape. It is one  
of the oldest streets in Calgary dating back to the late 1880s and tells the story of Calgary’s early  
history. It survives as a monument to the era when Fort Calgary and Inglewood were the centre  
and roots of what is now a major Canadian city – a time in Calgary’s history that was focused on  
vision, opportunity, justice, fairness and compassion.  
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[72] The Major Stewart House, a Provincial Historic Resource, built in 1885, is the gateway to  
the west end of New St. Major Stewart and Sir Cecil Denny, NWMP were amongst Calgary’s first  
developers. Many of the heritage homes that remain on New St are on land that Denny was given  
when he left the force.  
[73] The Grand Trunk Railway ran parallel to New Street, following the existing regional bike  
path terminating at Fort Calgary. The original CPR line runs through Inglewood and 9th Ave.  
Inglewood’s Main Street, was Calgary’s original Central Business District.  
[74] Throughout the documents there are many comments related to the streetscape. A  
traditional definition of a streetscape would include the roadway and adjacent treatments including  
sidewalks, lighting, street furniture and landscaping. This definition cannot be applied to a street  
like New Street as it is an historic, established streetscape.  
[75] While the Applicant suggests that the New Street streetscape does not include trees, Ms.  
Gruetzner argues that would be true if using a cookie cutter suburban lollipop tree in the boulevard  
treatment. New Street’s streetscape is defined by its trees – it is the most dominant characteristic.  
The proposed development provides minimal opportunities for the scale and type of landscaping  
that defines the street.  
[76] The most significant element of a streetscape such as New Street is the rhythm of the street  
or the interface of the houses to the street. For the most part the houses are setback equidistantly  
from the street and respect the setbacks of the adjacent homes. Similar treatments exist in the rear  
yards. The proposed developments do not respect the existing setback pattern on the street and  
introduce a completely foreign approach to the street interface. In particular, the proposed front  
yard garages interrupt the existing street pattern significantly. There are currently no front yard  
garages on New Street.  
[77] All of the houses on New Street are separated by side yards. The proposed development  
introduces a zero-lot line pattern with the introduction of garages on both of the adjacent property  
lines. There are no zero-lot line developments in the established streetscape of New Street. The  
rationale that because it is a garage it would be acceptable is ridiculous.  
[78] Streetscape discussions on streets such as New St are sometimes confused with debates  
about contemporary vs historic architecture. As the street evolves, New Street is a blend of old and  
new homes. Some of the new homes have been successfully integrated into the streetscape and  
others have not. The discussion should be focused on whether the proposed development is  
complimentary, compatible, and subordinate to the character of the established street and adjacent  
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properties. The fact the development proposes a front yard garage with a zero-lot line solution  
renders the development as an unacceptable and incompatible streetscape.  
[79] The proposed development is not consistent with the policies of the Inglewood ARP and  
Infill Housing Guidelines. The policies of these documents, approved by Council, require that the  
context of the immediate streetscape needs to be considered. In all aspects, the development does  
not respect the streetscape and is not sensitive to the adjacent homes. It also does not respect the  
existing homes on New Street and the historic character of the area.  
[80] In reviewing the City’s Design Reviews Ms. Gruetzner questioned why it consistently and  
repeatedly identified concerns that were suddenly approved. She added there appear to be many  
inconsistencies about how the bylaws and the relaxations were considered.  
M. and J. Jesson  
[81] While Mr. and Mrs. Jesson understand the creativity that goes into development with a  
difficult lot configuration and multiple neighbours, they do not support the development along the  
western lot line. They believe a zero-lot line development would only be appropriate if the  
neighbour to the west agrees to a private easement agreement.  
B. and D. Keating  
[82] Mr. and Mrs. Keating have several concerns regarding the proposed developments on 66  
New Street SE. They will be directly impacted as they live west of the proposed development.  
Firstly, the plans submitted for the proposed development approval process appear to be  
inaccurate. There is no roof line shown over the carport on the neighbouring 64 New Street home.  
This structural support of the home has been omitted, and the DA was given incorrect information  
on which to base its decision.  
[83] The new home development is over-height by about four feet. Because of its minimal  
setback from the street, it will be incompatible with the street scape. Any new development should  
conform to the existing standards and current guidelines and regulations set by the City.  
D. Kelly  
[84] Mr. Kelly’s home is across the street and a short distance west of the proposed  
development. The proposed development will have a negative impact on him and the neighbours  
for the following reasons:  
Excessive height will create an imposing presence, which will dominate the streetscape.  
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Excessive height will impact the current north facing view from his property negatively.  
Excessive overall size will dwarf Mr. Kelly’s house and others in the area.  
Building to or beyond setbacks for east and west property lines will negatively impact the  
street view and create a very crowded feel and view, compared to the current home which  
has ample space between properties.  
The front drive and dual large garage structures planned are large, boxy, and unsightly.  
The space between the west and east halves as designed will create a wind tunnel effect,  
causing a significant magnification of wind from the north aimed at the properties across  
the street (Mr. Kelly’s and 65 New St).  
The overall development is not in character with the community and this street, which  
includes numerous older homes having a historical character (Mr. Kelly’s home was built  
in about 1906).  
Whilst there are various new residential developments in Inglewood and some on this  
street, this one is imposing in size and height and the front view is dominated excessively  
by pavement and two boxy and ugly garages.  
The development may not comply with the Bylaws and the policies of the Inglewood Area  
Redevelopment Plan, nor with the Low Density Residential Housing Guidelines for  
Established Communities.  
There are concerns regarding impact to the integrity of the Berm installed on the subject  
and neighbouring properties, and consequent impacts to the area in the event of flooding  
from the River.  
Mature trees in the area will need to be removed.  
There are concerns about the impact to the immediate neighbours, particularly 64 New  
Street SE, who have a reasonable expectation of continued use and enjoyment of their  
properties without undue and unnecessary intrusion.  
M. McDougall  
[85] A variance is a relaxation of existing rules, which should be allowed only in extreme  
conditions without unduly affecting neighbours. In this instance, a variance has been granted to  
make a large residence even larger, with material negative affects for the neighbours, deterioration  
of the street scape and weakening the neighbourhood social fabric.  
[86] The issues include:  
The owner of the affected property has not given permission for access during construction  
or for maintenance post construction across his property.  
Potential drainage issues.  
The proposed build extends 15 feet past the current frontage.  
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The large wall cuts off neighbourly, over-the-fence exchange.  
[87] The person who benefits from the variance has privileged connections with the City of  
Calgary and Ms. McDougall questioned if an unusual benefit should be allowed in this  
circumstance. If this benefit is allowed, where the variance causes loss of value for the neighbours  
and affects the use of the neighbouring property, similar exceptions may be attempted and allowed  
in the future. This is side-door creation of land use regulations to benefit development at the  
expense of existing landowners.  
M. Ody and R. Ramage  
[88] Ms. Ody and Mr. Ramage live across from and are concerned about the proposed  
development. The building will encroach on the property line on the west side which creates  
danger for potential fire spread, as well as a reduction in privacy for the owner of 64 New Street.  
Parking on the street is already restricted during peak times and the addition of the proposed  
complex would further hinder the on-street parking.  
[89] The development will encroach to the edge of the sidewalk decreasing greenspace and  
conflicting with the overall look and inset of other houses on the street. It will also require removal  
of several mature trees that various birds use to nest, thus decreasing the overall potential of this  
street to be a small urban oasis. The development would also decrease sunlight exposure for the  
64 New Street yard, as well as the river view that is accessed through their backyard.  
[90] The plan to raise the backyard by three feet raises concerns about drainage. New Street  
already has issues with drainage during the winter to spring melt, and the changes could impact  
them or cause flooding.  
[91] In summary, the proposed development is not in the best interest of the neighbours on New  
Street.  
J. Rogers  
[92] J. Rogers owns 54 New Street and hopes to build on this property. Mr. Rogers’ lot is 48  
feet wide, and has a four foot setback to adjacent properties. He opposes the development and will  
follow the guidelines when he builds because doing so will:  
not impose on the neighboursspace, just as their space does not impose on his property,  
maintain neighbourly relations in a positive way,  
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avoid creating restrictions or problems with excess water flow between structures in the  
event of a flood, and  
will allow for easier construction.  
[93] Further, the proposed development is out of character with the surrounding area, appears  
over built, and overshadows several surrounding properties. The increased density will also create  
the need for more parking in an area where parking is already limited. Overall, there are better  
options for a very unique property and neighbourhood that would maintain the area’s character  
and adhere to the various bylaws.  
M. and S. Tumback  
[94] Mr. and Mrs. Tumback have been Inglewood residents for many years and avidly support  
the redevelopment efforts made in the community. However, they have concerns with the proposed  
development that is four properties from theirs. They have lived in Inglewood for almost 30 years,  
with the last 25 years on New Street. They appreciate the diverse ages and family situations, the  
rich character of the community, the proximity to downtown, the zoo, the science centre and many  
other amenities.  
[95] Concerns with the proposed development include unintended consequences of greater  
density on what is already a busy street for traffic, bikes, and walking. Greater density will create  
more traffic of all forms, which will affect the family environment now enjoyed on the street, and  
create traffic safety hazards for everyone, especially for aging residents and those with small  
children.  
[96] Proximity to the adjacent properties is another concern. The proposal leaves zero space  
between the development and the lot line and will set a concerning precedent in terms of  
maintaining the community’s character. The overall height of the proposed development also  
exceeds others on the street. There is an empty lot next to the Tumback’s property, and they would  
object to a similar development next to them. The proposal is not in keeping with the charm and  
beauty of Inglewood, and would certainly affect their ability to enjoy the property.  
[97] The Tumbacks are also concerned about the footprint of the proposed development.  
Currently, homes along the street back up to the berm and are aligned along the back and the front.  
The proposed development extends farther towards the river, which may affect future  
developments along the river.  
[98] There are amazing secondary suites in the neighbourhood but these are built behind the  
current homes with alleys. This arrangement helps manage the front street traffic, as the alley  
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provides multiple points of access for traffic. The proposed development only has front access, as  
do most of the homes across the street; directing all traffic on the narrow street creates a safety  
concern.  
L. Robertson Inglewood Community Association  
[99] The subject lot has physical limitations that require unreasonable “relaxations”. Calgary  
SDAB decision 2016-0084 stated:  
The development is inappropriate for the parcel and the immediate  
neighbourhood...Densification is only one objective of the Municipal Development  
Plan development must also be done to existing scale and built form. Enhancing  
local character is important. Infill development cannot create a drastic contrast to  
the area.  
[100] The massing of this development is equivalent to a small apartment building and is out of  
keeping with everything on the street except a development by the same designer (which went to  
the SDAB twice).  
[101] The heritage streetscape of modest homes with smaller lot coverage facing a treed  
boulevard will be spoiled by a building of commercial proportions with no design point reference.  
The Low-Density Residential Housing Guidelines for Established Communities state  
developments should be responsive to local context, which is the surrounding streetscape.  
[102] The garage concept cannot be executed safely on this lot width and creates an unsafe  
junction with the street; the suite has no parking provision which is a first for this street.  
[103] Adjacent neighbours are affected by the design: side yards are cut in half by a zero-lot line;  
neighbouring properties are dwarfed by a height far beyond contextual calculations; there is no  
ability to access their property for maintenance; and retaining wall footings intrude onto their  
property. The amount of earth required to raise the development 3’ above grade could also add  
stress to the berm’s integrity and the foundations of adjacent houses.  
[104] The variances required for the subject developments are at odds with the Low-Density  
Residential Housing Guidelines for Established Communities Infill Housing Guidelines, which is  
referenced in the ARP for Inglewood.  
[105] The berm has been in place for twenty years and should not be touched except for repairs  
or improvements. To date, no developments have been allowed in it and all owners must have an  
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easement to prevent such development; all requests for encroachment, even minor ones, have so  
far been rejected. The easement for the subject parcel’s wording varies significantly from the  
restrictive covenant on the other titles, which prohibits any changes to, or building on, the berm  
unless permitted by the Director of Water Resources.  
[106] Exceptions may be granted based upon inspections and a geotechnical report confirming  
that the berm has not been compromised. They are common to accommodate necessary  
infrastructure, but should not be used to allow a larger residence - particularly in such an important  
flood protection area. Berms are better left untouched and modifications may lead to future “fail  
paths” that may result in significant flooding for the community.  
[107] Approval will require major relaxations of the LUB that will take away the concept of quiet  
enjoyment for affected neighbours and will impair the face of one the most valued streets in  
Calgary, while potentially risking public safety. The LUB and Infill Housing Guidelines should be  
respected, and the development permits refused.  
Parties In Support of the Application  
D. Frid  
[108] Mr. Frid lives nearby and can see the subject property from his. He believes any new  
development would meet with opposition. He does not oppose this development and trusts the City  
of Calgary experts.  
R. and B. Halili  
[109] Mr. and Mrs. Halili submitted a letter expressing their support and stating the development  
would invigorate the east end of New Street. They like the design and are happy to know it will  
accommodate more than one family.  
M. and P. Heltay  
[110] Mr. and Mrs. Heltay live adjacent to the property on the east side and confirmed they accept  
the proposed shared access agreement. They enjoy the neighbourhood because of the diversity of  
population and styles of homes. While their house was built in 1929, New Street has houses from  
every decade which they appreciate. They want the street and neighbourhood to be vital and  
thriving into the future and understand the importance of change to achieve that vibrancy.  
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[111] The proposed development is exactly what they were hoping would be built. The current  
uninhabited duplex is depressing. Previous attempts to demolish the duplex were stopped after  
those in opposition expressed concerns as to property values; however, in their opinion the  
proposal would raise property values. Also, two families would be able to occupy that space, which  
has a positive human value.  
[112] The Heltay’s met with the owners and architect to discuss the design and how it would  
affect their adjacent property, the streetscape, and river access. The Applicants have made  
accommodations to address concerns, and the Heltays are satisfied all building guidelines and rules  
were respected. They are pleased the design allows full City access to the berm and river via a  
central driveway between the houses.  
[113] The relaxations requested are reasonable, and for the most part done to accommodate  
surrounding neighbours. New houses on New Street are usually met with a barrage of opinions as to  
their right to exist, but in time these homes usually prove to be beautiful assets to the streetscape of  
this historically eclectic neighbourhood.  
A. Noori and R. Matthews  
[114] Mr. Noori and Ms. Matthews understand there are legitimate criticisms of the development,  
but still support the proposed development.  
[115] The first concern is related to berm integrity, easement infringement, and drainage this  
concern should be resolved objectively through geotechnical reporting, engineering analysis and  
City review and approvals. Mr. Noori expects building permits would not be granted without  
objective evidence demonstrating the soundness of the plans with respect to integrity of the berm,  
and safety to the community. Also, the developer would have no desire for any lots to be  
compromised or flooded given the risk of legal and financial penalties.  
[116] The second issue concerns the proposed heights of the homes. Since the 2013 flood, flood-  
fringe rules necessitate the main floor of all new dwellings be raised to a minimum height above  
the flood plain. It stands to reason that any new construction would see its height increased to  
reflect the new requirement.  
M. Pink & J. Ford  
[117] Ms. Pink and Mr. Ford own two homes on New Street, where they have watched  
development evolve over the last decade. This evolution reflects a mix of design choices and a  
range of opinions, with no real pattern of development the result is an eclectic mix of old and  
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new. There is a row of cottages perpendicular to the main street on a tiny corridor called New  
Street Place; there are duplexes, single titled lots with a house in the front and a house in the back;  
there are homes with secondary suites, single family homes and larger homes.  
[118] Since the flood in 2013, 66 New Street has not come back to a true rentable state. This  
proposal is the third development attempt for the site - all the others faced opposition or  
insurmountable hurdles to economic viability.  
[119] The proposed development would enhance the character of the street. Most people interact  
in the front yard. The garage configuration of this development minimizes drive-way space and  
allows interaction between the street and neighbours to continue.  
[120] While Ms. Pink and Mr. Ford no longer live on the street, they rent out both 49 and 51 New  
Street, and submit there is a fundamental lack of availability for rental homes in the area. Most  
recently, a vacancy at one of the homes generated 50 inquiries within 12 hours of listing. The fact  
that this development also provides a rental unit is appealing, since the neighbourhood lacks  
quality rentals, and diversity of housing is a key tenet of the MDP that has garnered community  
support over the years.  
[121] Overall, these homes will not unduly interfere with the amenities of the neighborhood nor  
materially interfere with or affect the use, enjoyment or value of neighboring parcels of land.  
Rather they enhance the streetscape, contribute to the enjoyment of the street and add to the value  
of neighboring parcels.  
R. Schultz and K. Ziprick  
[122] Mr. Schultz and Ms. Ziprick support the development and live across the street from the  
proposed development. The existing duplex on the property is vacant and previously there was a  
revolving door of tenants the property is derelict and attracts crime and mischief from people  
passing through on the river or on the river paths in the area.  
[123] They are eager to see development proceed on the subject property, and believe in the  
continued modernization of New Street, mixing its character and charm with modern design and  
materials. This proposal is well designed, appears to be of similar depth as recently developed  
properties and will add density to an under utilized property.  
[124] As with any property built adjacent to flood the protection berm, the ability of the berm to  
protect the community should not be degraded. To this end, an easement with the City allows for  
regular back of berm maintenance in perpetuity.  
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[125] There are some concerns regarding the zero lot line garage next to 64 New St SE and the  
future plans to construct and maintain the carport of 64 New St SE and the garage of the west  
development. A plan is required to address future construction and maintenance that is agreeable  
to both property owners.  
[126] Overall Mr. Schultz and Ms. Ziprick support the project and believe constructing good,  
thoughtful development will increase property values on New Street. They support a diverse  
community, and believe design choices should not be regulated provided the development is safe  
and follows consistent standards. Further, a hyper localized view for context i.e. only homes on  
this block is too small. There is plenty of precedence for taller homes and increased density in  
the area.  
M. Rachiele  
[127] Mr. Rachiele can see the subject property clearly and in its entirety from his rear deck. He  
looks forward to seeing new residential structures replacing the existing one, which needs updating  
or replacement to enhance the appearance of the area. Providing the river berm is unaffected, Mr.  
Rachiele supports the new buildings. He has confidence in the MGB, the builders, and the City to  
ensure the details regarding the berm will be handled expertly.  
[128] Mr. Rachiele believes greater development and density in existing neighbourhoods saves  
costly additional infrastructure on the outskirts of Calgary, and may save residential expansion  
onto otherwise arable lands. It also adds to the City’s tax base, helping the Inglewood  
neighbourhood, and likely saves commuting and greenhouse-gas emissions by those who would  
prefer to live and work in an urban setting.  
M. Wakefield  
[129] Ms. Wakefield supports the two proposed developments, which she considers  
advantageous to eclectic New Street. New Street is one of Calgary’s oldest, but also portrays newly  
and diversely planned homes built on land that once knew only single family dwellings, but now  
has residential properties shared between families. In addition, the proposals promote safety by  
having the garage doors face east and west rather than north and south which would block the  
view of the street. The street includes small bungalows, two and three storey homes, side-by-side  
one and two storey duplexes and front-to-back duplexes. The proposed development will allow  
more families to live on New Street and ensure it remains vibrantly diverse and continual growth  
of Inglewood community.  
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SUMMARY OF APPELLANTSPOSITION  
J. Agrios on behalf of C. Glassco and C. Link  
[130] Mr. Glassco resides at 64 New Street, adjacent to the west development and Ms. Link  
resides at 72 New Street, which is one house away to the east. Mr. Glassco and Ms. Link both  
object to the proposed developments. Their objections fall into two main categories:  
a. Planning considerations The proposed discretionary use developments do not comply  
with the City of Calgary 2020 MDP, the Inglewood Area Redevelopment Plan (ARP), the  
Low Density Residential Guidelines for Established Communities (Infill Guidelines) and  
the LUB. Due to the massing, privacy and sunlight issues, excessive height, reduced  
setbacks and overall lack of sensitivity to neighbouring properties, the proposed  
developments are inappropriate for the site and incompatible with the surrounding  
properties. The proposed developments will unduly interfere with the amenities of the  
neighbourhood and materially interfere with and affect the use, enjoyment or value of  
neighbouring properties.  
b. Flood Protection A flood berm is located along the rear of the properties on New Street  
in order to protect the properties and the Inglewood neighbourhood from flooding. All  
properties on New Street abutting the Bow River are subject to an easement and restrictive  
covenant agreement that prohibits improvements in the easement area in order to protect  
the flood berm, except for the subject site. The site is subject to an easement that allows  
for improvements in the easement area with certain approvals. The proposed developments  
encroach into the easement area. There are no reports to support that the integrity of the  
flood berm will not be compromised by these encroachments.  
[131] Mr. Glassco and Ms. Link are not opposed to redevelopment of the site provided any such  
redevelopment respects neighbouring properties, complies with the MDP, ARP and Infill  
Guidelines, and does not encroach into the easement area or otherwise interfere with the flood  
berm.  
[132] The proposed developments do not comply with the applicable statutory plans, and the  
plans are binding on the MGB. Specifically, Policy 2.3.2(c) of the MDP and Policy 2.3.2 of the  
ARP are mandatory directions that must be complied with.  
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MDP 2.3.2 Respecting and Enhancing Neighbourhood Character  
Objective  
Respect and enhance neighbourhood character and vitality.  
The identity and character of a neighbourhood is a function of how people interact  
with the history, built form, landscape, and visual qualities. This interaction defines  
how people feel about a neighbourhood as a place. An area’s identity and character  
may include, but does not specifically refer to, heritage resources, which are  
separately recognized for heritage values and qualities…..  
Attention must be paid to ensuring that appropriate local context is considered when  
planning for intensification and redevelopment…  
Policies  
a. Respect the existing character of low-density residential areas, while still  
allowing for innovative and creative designs that foster distinctiveness…  
c. Ensure infill development complements the established character of the area  
and does not create dramatic contrasts in the physical development pattern.  
ARP Residential Land Use Policies  
2.3.2 New residential development should respect the surrounding housing and  
contribute to an attractive streetscape….  
Infill Housing  
New narrow lot housing (infill) has been built in Inglewood as in other inner city  
communities. This type of housing has been very controversial in several  
communities because it often entails the construction of two homes on a site which  
originally accommodated a single bungalow. The new homes are usually narrower,  
taller and extend much further back in the yard than the adjacent older homes  
causing a variety of shadowing, privacy, and streetscape impacts.  
City Council has adopted a number of measures designed to ensure the opportunity  
for public review and appeal of infill housing applications and decisions. Generally  
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the quality of infill housing being constructed in the inner city is very high and the  
new buildings are often replacing deteriorated houses in the community.  
In Inglewood sensitively designed infill development will be valuable to maintain  
the overall quality of the housing stock, increase the population and provide variety  
in available housing. It should however respect the existing development.  
[133] The proposed developments do not respect the scale of the adjacent developments nor the  
character of the street and immediate area. Contrary to the MDP, the proposed developments do  
not “complement the established character of the area” and create a “dramatic contrast in the  
physical development pattern”. Further, and in contravention of the ARP, the proposed  
developments do not respect the surrounding housing nor do they contribute to an attractive  
streetscape.  
Flood Protection  
[134] The MDP requires development be designed to minimize property damage and ensure  
public safety. Section 4.4 of the MDP provides that one of the City’s top priorities is to “minimize  
property damage by requiring all development and redevelopment in the Flood Hazard Areas to  
be designed to mitigate the potential impact or obstruction of floodwaters.” In particular, Policy  
4.4(a)(xii) of the MDP mandates that “all buildings located in the floodway, flood fringe or  
overland flow area must be designed to prevent: damage by floodwaters; damage by elevated  
groundwater; and incremental increase of upstream river water levels”. [emphasis added]  
[135] To this end, each property on New Street (other than the Site) is subject to the following  
registrations on title in favour of the City of Calgary:  
(a) Access Easement Agreement; and  
(b) Easement and Restrictive Covenant Agreement;  
In contrast, the proposed development is not subject to the same restrictions as the other properties  
on New Street. The Applicant is allowed improvements in the easement area with the approval of  
the Director, Water Works. The proposed developments include improvements within the  
easement area and no justification has been provided for why this site is being treated differently  
from other properties on New Street. In particular, no engineering reports have been provided to  
confirm the improvements do not compromise the flood berm.  
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Variance Test  
[136] Approval of the proposed developments will require numerous variances, which the  
affected parties addressed in terms of the material and undue negative impacts they will have  
related to massing, privacy and sunlight issues, excessive height, reduced setbacks and overall lack  
of sensitivity to neighbouring properties and the overall neighbourhood.  
[137] Instead of providing evidence as to how the impacts on the neighbouring properties were  
addressed, the Applicant focused on why the proposed developments required the variances and  
how the development could have been worse. As the party seeking the variances, the onus is on  
the Applicant to provide evidence that the variance test is met that the proposed developments  
will not unduly interfere with the amenities of the neighbourhood and will not materially interfere  
with and affect the use, enjoyment or value of neighbouring properties. There is no onus on the  
neighbours to establish harm or negative impact. The Applicant has failed to meet this onus.  
[138] The Act requires the MGB to comply with the LUB, subject to certain exceptions. In Love  
v Flagstaff (County of) Subdivision and Development Appeal Board, 2002 ABCA 292, the Court  
discussed the importance of having development standards set out in an LUB (paras. 27 and 28)  
Central to these values is the need for certainty and predictability in planning law.  
Although expropriation of private property is permitted for the public, not private,  
good in clearly defined and limited circumstances, private ownership of land  
remains one of the fundamental elements of our Parliamentary democracy. Without  
certainty, the economical development of land would be an unachievable objective.  
Who would invest in land with no clear indication as to the use to which it could be  
put? Hence the importance of land use bylaws which clearly define the specific uses  
for property and any limits on them.  
The need for predictability is equally imperative. The public must have confidence  
that the rules governing land use will be applied fairly and equally. This is as  
important to the individual landowner as it is to the corporate developer. Without  
this, few would wish to invest capital in an asset the value of which might tomorrow  
prove relatively worthless. This is not in the community’s collective interest.  
[emphasis added]  
[139] In Liquor Stores Limited Partnership v Edmonton (City), 2015 ABCA 63, the Court  
expressly recognized that LUB regulations take precedence unless the test for a variance is met  
(para 12).  
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[140] The general approach to variances is summarized in Laux and Stewart-Palmer, Planning  
Law and Practice in Alberta (4th Edition) (page 10-64):  
The rule of thumb is that every development must conform to the land use bylaw.  
It is obvious that if a general rule is to be set aside in a given case, there should be  
some unusual circumstances to justify such action, otherwise there is a danger that  
the use of the variance power can result in a de facto redrafting of the bylaw though  
the board exercising that power.  
[141] Section 687(3)(d) of the Act requires the MGB evaluate the impact of the proposed  
development, not simply the impact of the variance. In other words, in order to grant a variance  
the MGB must be satisfied 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.  
[142] In Livaditis v Calgary (Development Appeal Board), 1991 ABCA 2020, the Court  
interpreted s. 85(3) of the Planning Act (which set out a variance power that was almost identical  
to s. 687(3)(d) of the Act). The Court stated (para 18):  
In the case of exercise of powers under s. 85(3)(c) of the Act, however, the Board  
cannot approve the development unless it is satisfied that there has been no material  
interference with the enjoyment of neighbouring properties. There is no room for  
compromise in that case. The Board must assess the facts in the light of the right of  
the neighbouring properties and make a decision, even if that means that the  
development must be forbidden.  
[143] In Thomas v Edmonton (City), 2016 ABCA 57, the Court described the purpose of the  
variance power as follows (para 29):  
Statutory plans and land use bylaws set out general development standards that are  
common to all lands in a specific area. These standards are typically defined with  
precision so that everyone understands what a particular site can be used for, and  
what can be constructed thereon. But as with all line-drawing, it is recognized that  
there will be cases in which a strict application of the set standards could lead to an  
unreasonable result. To relieve against hardship, the Legislature has conferred on  
subdivision and development appeal boards the authority to relax  
dispense with or waive development standards in the applicable land use bylaw  
providing certain conditions as set out in s. 687(3)(d) are met.  
that is vary,  
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[144] The Court also cautioned against over-extending the power (para 28):  
Section 687(3)(d) constitutes an exception to the general rule requiring that the  
SDAB comply with the Zoning Bylaw. While the specific overtakes the general, as  
is usually the case with exceptions, the exception under s. 687(3)(d) of the Act  
should not be interpreted so as to defeat the SDAB’s general obligation under s.  
687(3)(a.1) to comply with the Zoning Bylaw which the exception modifies. An  
exception may pre-empt the general theme of the law. Indeed, that is its purpose.  
But logically it should only do so as precisely as the legislators intended: Sullivan,  
supra at 506. After all, an exception represents a balance that the Legislature has  
struck: Reference re Broadcasting Regulatory Policy CRTC 2010-167 and  
Broadcasting Order CRTC 2010-168, 2012 SCC 68 at para 70, [2012] 3 SCR 489.  
It is not for the courts to alter that balance and still less for the SDAB to do so.  
Therefore, the rationale for this exception is relevant in interpreting the scope of  
the variance power conferred on subdivision and 2016 ABCA 57 (CanLII) Page:  
10 development appeal boards in Alberta under s. 687(3)(d) of the Act.  
[145] The variance power in s. 687(3)(d) of the Act is an exception to the overriding requirement  
that the MGB comply with the provisions of the LUB. The onus is not on the parties opposing  
development to prove harm, but on the applicant seeking the variance to establish the test has been  
met. In order to exercise this variance power, the LPRT must have evidence before it that the test  
for a variance is met, namely 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.  
[146] In this case while the Applicant has explained why the development requires variances they  
have not submitted evidence that the development would not unduly affect the use, value and  
enjoyment of neighbouring properties, particularly with respect to Mr. Glassco’s property and the  
complete elimination of the side yard setback.  
[147] A development for a discretionary use can be rejected for any legitimate planning  
consideration not covered by Section 687(3)(d) of the Act. In other words, even if the test for a  
variance is met, as the proposed developments are discretionary uses, the MGB can still refuse the  
proposed developments for planning reasons, such as that the proposed developments will be an  
overdevelopment of the site. In summary, even if the MGB finds that the variance test is met, it  
can still find that the site is either too small for the proposed developments or that the proposed  
developments are too large for the site and refuse the proposed developments on that basis.  
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C. Glassco  
[148] Mr. Glassco explained how the proposed development will negatively impact his property.  
His concerns are summarized as follows:  
Conflict with Fire Code;  
#64 New Street house roof was not built with non-combustible protection;  
The roof of his house was not built to withstand snow loads;  
Drainage and maintenance issues;  
Massing impact on #64 New Street Home as there will be a massive wall along the  
east of his deck;  
Proposed development is imposing relative to others on the street;  
The height of the proposed development will block sunlight into his yard and house;  
The plan calls for the grade of the development to be raised with a retaining wall  
which will effectively box in his property;  
Mature trees along the westerly property line will be removed;  
The proposed development is not in keeping with the streetscape;  
The proposal is incompatible with his property and not complementary to his home;  
The Integrity of the Inglewood Flood Protection Berm is affected by the proposed  
development;  
The safety of New Street and the community will be compromised;  
Registered Easements on adjacent properties along Bow River do not allow for  
encroachments by any buildings, structures or plantings on the Flood Berm  
Easement Areas. However, the proposed development encroaches on the Flood  
Berm Easement Areas.  
C. Link  
[149] Ms. Link made models to show the scale and details of the proposed development. As an  
Architect, Ms. Link submitted the proposed development’s design is not functional or appropriate  
on the proposed site. Ms. Link’s house was designed for maximum daylight, which will be  
negatively impacted by the proposed development. The view from Ms. Link’s home will be  
affected as the trees will be removed and the windows - which currently have natural sunlight -  
will lose the west sunlight due to the proposed development’s massive height and large mass. The  
rear yard will also lose all of the west sun exposure.  
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P. and S. Stead - Appellant  
[150] Mr. and Mrs. Stead live on New Street SE two houses to the west of the proposed  
development and appealed the two developments for the following reasons:  
The excessive height negatively impacts neighbours and neighbourhood.  
Encroaches on flood infrastructure.  
The subject property does not have the same restrictive covenant preventing improvements  
close to the river as other similar properties.  
Loss of mature trees will compound drainage issues.  
Lack of side yard Setback.  
Setback from sidewalk does not respect streetscape.  
Height and massing into backyard is excessive and would interfere with the use, enjoyment  
and value of adjacent properties.  
Inappropriate increase in population density.  
The location and orientation of the garages will cause more cars to park on the street where  
parking is already limited.  
[151] The Steads submit the shading from the proposed development will interfere with the use  
and enjoyment of their property; in particular, the development will overshadow their back yard  
patio and extensive rockeries, ponds, and plants. Its excessive height will also affect privacy of  
north side bedrooms and is likely to diminish property values of neighbours.  
[152] Mrs. Stead submitted there are too many relaxations to the LUB and that the placement,  
massing, height of the structures and the recreation areas are insensitive to the nesting, feeding and  
movement of migratory birds and other wildlife.  
P. Boyle and N. Saxberg (Boyle)  
[153] The Boyle/Saxberg property backs on to the east side of the subject property and appealed  
the east development permit because of the following concerns:  
The proposed change in grade of the subject lot and construction of a three foot retaining  
wall topped by a six foot fence. The Applicant has not consulted neighbours regarding  
maintenance of the retaining wall. There is concern regarding drainage and seepage onto  
his property since the retaining wall is to be constructed of wood and the base will be set  
on the current grade rather than in the ground. As well, there are concerns about how this  
development will affect the existing fence on the property line.  
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Removal of mature trees on the subject property, and the likelihood that mature trees on  
his property will be negatively impacted by construction of the retaining wall - particularly  
four-foot-deep concrete piers attached to the wall.  
Installation of 4-foot-deep piers in the 6 m setback from the floodway and extending into  
the impermeable subsurface clay layer associated with the flood protection berm.  
Inglewood is known to be situated on the alluvial aquifer boundary and the groundwater is  
shallow and connected to the river. We are concerned that this will affect the function of  
the impermeable clay layer during high surface and groundwater events.  
Height of proposed structure will shadow our backyard, particularly in the winter.  
Inappropriate massing, height and depth of the building relative to adjacent heritage  
properties. The proposed structure does not respect the existing character of the street.  
Loss of privacy due to east elevation windows shown on plans of proposed structure facing  
the back of our house and our back yard.  
[154] The primary concerns revolve around: grade changes and associated retaining wall,  
landscaping (removal of mature trees) and building design, height, massing, depth and window  
placement.  
Grading  
[155] The proposed 6-foot fence on top of a 3-foot retaining wall is not compatible with the  
heritage character of the Boyle/Saxberg property. Further, there may be seepage under the  
retaining wall, since there is no subsurface structure and the bottom 2x6 plank of the retaining wall  
will be at the same grade as the Boyle property boundary.  
[156] The project does not meet the requirements of Calgary’s 2019 “Guide to Lot Drainage –  
Residential Development” given the instruction on page 12: “For infill redevelopment, it is the  
builder’s responsibility to design and construct lot grades to ensure that existing elevations are met  
at the property line and Positive Lot Drainage is provided without adverse impacts to adjacent  
lots”. A related concern relates to the long-term structural integrity of the retaining wall: It is  
assumed the owners of the New Street property will need to access the wall through their property,  
but the project proponent has not discussed maintenance with them, and the future responsibility  
has not been established. Since the structure is proposed to be built along the shared property line  
without approval and input, the City has approved the development permit inappropriately.  
Landscaping and retaining wall  
[157] The Historic East Calgary Communities Local Area Plan, Draft February 2021 General  
Policies says: “New development should be designed to maintain existing mature trees on private  
land”. The development includes a plan to remove all the mature trees outside of the floodway on  
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the property. While none are owned by Calgary, they are still part of the City’s mature tree canopy.  
The mature trees on the east side of the subject property were described as “valuable” in a decision  
that rejected a previous application for development of this property. Since the trees are 16 years  
older now and remain healthy, they have only increased in value - yet their removal was approved  
based on the Applicant describing them as “scraggly”.  
[158] Adding fill over roots of the trees near the shared property line (one mature lilac bush and  
one healthy 50 to 60-year-old male Manitoba Maple) will tend to starve them by restricting water  
and oxygen penetration. The excavation required to install the 4-foot concrete piers that support  
the retaining wall may also sever roots and cause decay. The Manitoba maple helps to shade their  
backyard from the southwest sun in the summer and provides privacy screening from the backyard  
of the subject property. The tree is the main natural feature of their small backyard, and is critical  
to the enjoyment of their property during the summer.  
[159] The proposal does not meet the Land Use Bylaw 1P2007, Part 3, Division 3, section 59(2)8,  
which says: “Unless stated in subsection (3), all buildings must be set back 6.0 metres from the  
edge of the floodway.” Buildings in this context include “anything constructed or placed on, in,  
over, or under land”. The proposed retaining wall is a building within the 6 m setback from the  
edge of the floodway. The retaining wall and the 4-foot concrete support piers may affect flood  
protection measures in the community. The proposed grade change may affect groundwater  
flooding associated with high water events, since flood barriers do not necessarily protect  
properties from groundwater flooding; further, there is uncertainty as to the location of the clay  
core of the berm and whether development will interact with it to facilitate flow. The concern about  
increased potential for groundwater flooding is especially acute for adjacent properties including  
1203 and 1207 15 Street SE.  
Building Height  
[160] The proposed house is taller than the maximum 10 m allowed by the Land Use Bylaw 12,  
Part 5, Division 5, section 438 Building Height. The shadow from the house will shade the  
backyard and the west façade of their house, particularly in winter afternoons/evenings when the  
sun is low on the horizon. The City of Calgary’s “Low Density Residential Housing Guidelines  
for Established Communities”, section 4.4.1, Building Height:  
Where the established street is characterized by low profile bungalows, the height  
of the new infill or an addition must be particularly sensitive. Greater design  
restrictions on initial infills may be required in order to ensure a more sensitive  
integration with the existing scale and character of the neighbourhood. Where one  
or both of the neighbouring homes are lower scale, new development should respect  
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the existing street context. In these circumstances a lower profile development may  
be warranted.  
Also, section 4.5, Privacy: “It is important to respect the privacy of adjacent residences and their  
access to sunlight”.  
[161] With respect to the massing of the Proposed Development, the “The Low Density  
Residential Housing Guidelines for Established Communities” direct that new developments in  
established communities should avoid massing to ensure compatibility with the streetscape and  
reduce substantial impact on privacy and sunlight. The City did not take into account the impact  
of the massing on the houses fronting 15 Street SE, even though they will also be affected. In this  
case, the height and depth of the proposed development will also affect privacy of properties  
backing onto the East Proposed Development, and there is a direct line of sight from the second  
storey window of the proposed development to the upper story back window of the 1207 15 Street  
SE.  
Post Hearing Submission  
[162] With respect to interpretation of the s. 687(3)(d) of the Act, the Appellant submitted  
caselaw suggests the definition of “enjoyment of property” includes qualities of satisfaction,  
pleasure, and the like. To determine the impact of a variance the MGB will need to assess the  
conditions of privacy, shadowing, imposing effect, grading and drainage when deciding the  
magnitude of impacts. The Appellant submitted several Calgary SDAB decision excerpts in  
support of this position.  
[163] The Appellant also referred to Love v. Flagstaff (County of) Subdivision and Development  
Appeal Board 2002, ABCA 2002 as relevant in this regard. While it deals with a conflict between  
an intensive animal operation (IAO) and residential house construction, it is an example of how  
use, enjoyment and value of property can be materially and unduly affected by adjacent  
development. In particular, the Court indicated planning bylaws should not be applied unfairly so  
as to favour one property owner over neighbouring owners and their ability to use and enjoy their  
properties.  
[164] In this case, the Appellants and supporters have demonstrated enjoyment of their property  
would be materially and unduly affected as a result of the variances required to build the Proposed  
Development - particularly the height variance, setback variances and the floodway setback  
variance. The panel must evaluate fairly whether the effects described during the hearing are of  
the appropriate quality and/or magnitude to be considered “material” or “undue”. The comments  
in Love v. Flagstaff should inform the panel about how neighbouring parcels may be materially  
and unduly affected by larger discretionary developments that require variances of local Bylaws.  
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[165] The need for the spatial variances, and particularly the need to build to the property lines  
on the east and west sides of 66 New Street SE, including the zero lot lines needed for the garage  
walls and the building of a retaining wall along the shared property line on the east side, show the  
Proposed Development is too large for the land parcel. The Best Practices for building retaining  
walls along property lines indicate a need for sensitivity to neighbouring properties and an  
agreement between neighbours. Building to the property lines will result in a sterilization of the  
edges of adjacent parcels resulting in a loss of the ability of the neighbours to enjoy and use their  
property to its fullest extent with a concomitant loss in value, even though the Calgary Land Use  
Bylaw mandates the establishment of agreements between neighbours in that situation. The  
Applicant does not have all these agreements in place and to approve a discretionary permit at the  
expense of the existing permitted use properties contradicts the intentions of the Land Use Bylaw.  
[166] In the spirit of the “good neighbour policy” that should be the foundation of Alberta  
planning law, the Proposed Development does not comply with the City of Calgary Land Use  
Bylaw or other statutory governing documents, it does not meet the requirements of s. 687 (3)(d)  
and furthermore, approval of it undermines confidence in the City’s ability to assess impacts and  
fairly apply the tenets of the Land Use Bylaw.  
FINDINGS  
1. The Proposed Development complies with the MDP and ARP.  
2. The Proposed Development’s encroachment into the flood fringe complies with flood rules  
and does not adversely impact flood protection.  
3. The proposed developments and requested variances will not unduly interfere with the  
amenities of the neighbourhood or materially interfere with or affect the use, enjoyment or  
value of neighbouring land.  
DECISION  
[167] The appeals are denied, and the decision of the DA is confirmed.  
[168] The East House is approved subject to the following:  
Prior to Release Requirements  
The following requirements shall be met prior to the release of the permit. All requirements shall  
be resolved to the satisfaction of the Approving Authority:  
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Planning:  
1. Provide an executed and registered (on both affected titles) Private Maintenance Easements  
located on 68 New St SE as per approved plans.  
Subdivision:  
2. Provide a copy of the new Land Title and Plan of Subdivision upon registration of the  
subdivision.  
3. The applicant is to provide written confirmation stating the proposed property lines as  
noted in the site plan are exactly the same as the actual property lines described by the new  
land Title of the Plan of Subdivision.  
Transportation:  
4. Provide the executed and registered (on title) Mutual Access Easement Agreement between  
the subdivided lots as proposed under subdivision application SB2017-0119. The  
agreement and registerable access right of way plan shall be to the satisfaction of  
Transportation Planning.  
5. After the Development Permit is approved but prior to its release, remit a performance  
security deposit (certified cheque, bank draft) of $8,000 for the proposed infrastructure  
listed below within the public right-of-way to address the requirements of the Business  
Unit. The amount of the deposit is calculated by Roads and is based on 100% of the  
estimated cost of construction.  
The developer is responsible to arrange for the construction of the infrastructure with their  
own forces and to enter into an Indemnification Agreement with Roads at the time of  
construction (the security deposit will be used to secure the work).  
Roads  
g. Construction of one (1) new driveway crossing on New Street SE.,  
h. Closure and removal of one (1) existing driveway crossing on New Street SE.,  
i. Rehabilitation of existing driveway crossings, sidewalks, curb and gutter, etc., should  
it be deemed necessary through a site inspection by Roads personnel.  
The attached document outlines the process for providing the security deposit, scheduling  
of work, responsibility for damages, and requesting a refund, if applicable.  
6. Remit payment (certified cheque, bank draft) for the proposed infrastructure listed below  
within the public right-of-way to address the requirements of the Business Units. The  
amount is calculated by the respective Business Unit and is based on 100% of the estimated  
cost of construction.  
The developer is responsible to coordinate the timing or the constriction by City forces.  
The payment is non-refundable.  
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Roads  
c. Street lighting upgrading adjacent to New Street if deemed necessary through a site  
inspection by Roads personnel.  
Development Engineering:  
7. Provide satisfactory evidence confirming that the required Maintenance and Repair Access  
(flood barrier) Easement is executed and registered on the applicable title(s); to the  
satisfaction of Real Estate and Development Services.  
Permanent Conditions  
The following permanent conditions shall apply:  
Planning:  
8. The development shall be completed in its entirety, in accordance with the approved plans  
and conditions.  
9. No changes to the approved plans shall take place unless authorized by the Development  
Authority.  
10. Upon completion of the main floor, proof of the geodetic elevation of the constructed main  
floor must be submitted to and approved by the Development Authority prior to any further  
construction proceeding. Email confirmation to [email protected].  
11. A Development Completion Permit is required prior to the development being occupied.  
Subdivision:  
12. The development permit has been approved using the proposed parcel property lines for  
the purpose of determining compliance with the relevant rules of the Land Use Bylaw  
1P2007 for the proposed Single Detached Dwelling. Should the actual property lines be  
different than the proposed property lines, the development permit shall be revoked and a  
new development permit shall be required.  
Transportation:  
13. The developer shall be responsible for the cost of public work and any damage during  
construction in City road right-of-ways, as required by the Manager, Transportation  
Planning. All work performed on public property shall be done in accordance with City  
standards.  
14. The approved driveway(s) required for this development must be constructed to the ramp  
grades as shown on the approved Development Permit plans. Negative sloping of the  
Driveway within the City boulevard is not acceptable. If actual grades do not match the  
approved grades, the developer/owner shall be responsible for all costs to remove and  
reconstruct the entire driveway ramp in accordance with approved grades.  
15. Indemnification Agreements are required for any work to be undertaken adjacent to or  
within City rights-of-way, bylawed setbacks and corner cut areas for the purposes of crane  
operation, shoring, tie-backs, piles, surface improvements, lay-bys, utility work, +15  
bridges, culverts, etc. All temporary shoring, etc., installed in the City rights-of-way,  
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bylawed setbacks and corner cut areas must be removed to the satisfaction to the Manager  
of Transportation Planning, at the applicant’s expense, upon completion of the foundation.  
Prior to permission to construct, contact the Indemnification Agreement Coordinator,  
Roads at 403-268-3505.  
Development Engineering:  
16. If during construction of the development, the developer, the owner of the titled parcel, or  
any of their agents or contractors becomes aware of any contamination,  
a. The person discovering such contamination shall immediately report the  
contamination to the appropriate regulatory agency including, but not limited to,  
Alberta Environment, Alberta Health Services and the City of Calgary (311).  
b. On City of Calgary lands or utility corridors, The City of Calgary, Environmental  
and Safety Management division shall be immediately notified (311).  
17. Construction of the foundation cannot occur during flood season (which is between May  
15 and July 15; each year).  
For further details, contact Water Resources River Engineering (directly) at 403-  
268-4683.  
18. Single retaining walls 1.2m in height or greater or terraced retaining walls 1.2m in height  
or greater with a horizontal separation between walls of less than 3.6 m (3x height) require  
the approval of a Building Permit prior to construction.  
For retaining wall(s) that meet these criteria, the developer may either:  
e. Include the retaining walls with the Building Permit for the building, or  
f. Apply for a separate Building Permit for the retaining walls.  
It should be noted that the Building Permit for the building in site will not be released until  
the separate Building Permit for site retaining walls is approved.  
19. Portions of the development site are situated within the Floodway; and as such must  
conform to Land Use Bylaw 1P2007, Part 3, Division 3 (or 2P280 for areas downtown)  
20. Portions of the development site are situated within the Flood Fringe; and as such must  
conform to Land Use Bylaw 1P2007, Part 3, Division 3.  
21. No outdoor storage is permitted in the Floodway, as per Land Use Bylaw 1P2007 Part 3,  
Division 3.  
22. The developer/project manager, and their site designates, shall ensure a timely and  
complete implementation, inspection and maintenance of all practises specified in erosion  
and sediment control report and/or drawing(s) which comply with Section 3.0 of The City  
of Calgary Guidelines for Erosion and Sediment Control. Any amendments to the ESC  
document must comply with the requirements outlined in Section 3.0 of The City of  
Calgary Guidelines for Erosion and Sediment Control.  
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23. The grades must match the grades indicated on the Development Permit approved plans.  
Upon a request from the Development Authority, the developer or owner of the titled parcel  
must confirm under seal from a Consulting Engineer or Alberta Land Surveyor, that the  
development was constructed in accordance with the grades submitted on the Development  
Permit.  
24. All rooftop drainage shall be controlled with eave troughs and downspouts that direct  
drainage to the street.  
25. No trees, shrubs, buildings, permanent structures or unauthorized grade changes are  
permitted within the utility rights-of-way.  
Parks:  
26. All construction is restricted to private land only; construction access is only permitted  
through existing driveways. At no point during construction are the natural areas adjacent  
to the Bow River to be disturbed.  
27. Prior to the commencement of any development activity or stripping and grading  
operations, the silt protection fencing shall be installed along the construction disturbance  
line within the northern property line, adjacent to the Bow River. This fencing is to be  
inspected and approved by the Parks Development Inspector at (403) 268-5325.  
28. Drainage from the development site into the adjacent natural area/Bow River is not  
permitted.  
29. All lands below the high water mark (outside property line) are crown lands and for any  
work to be completed in this area, the applicant must have appropriate Provincial and  
Federal approvals under the Public Lands Act, Department of Fisheries and Oceans, the  
Navigable Waters Protection Act, etc.  
[169] The West House is approved subject to the following:  
Prior to Release Requirements  
The following requirements shall be met prior to the release of the permit. All requirements shall  
be resolved to the satisfaction of the Approving Authority:  
Subdivision:  
1. Provide a copy of the new Land Title and Plan of Subdivision upon registration of the  
subdivision.  
2. The applicant is to provide written confirmation stating the proposed property lines as  
noted in the site plan are exactly the same as the actual property lines described by the new  
land Title of the Plan of Subdivision.  
Transportation:  
3. Provide the executed and registered (on title) Mutual Access Easement Agreement between  
the subdivided lots as proposed under subdivision application SB2017-0119. The  
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agreement and registerable access right of way plan shall be to the satisfaction of  
Transportation Planning.  
4. After the Development Permit is approved but prior to its release, remit a performance  
security deposit (certified cheque, bank draft) of $8,000 for the proposed infrastructure  
listed below within the public right-of-way to address the requirements of the Business  
Unit. The amount of the deposit is calculated by Roads and is based on 100% of the  
estimated cost of construction.  
The developer is responsible to arrange for the construction of the infrastructure with their  
own forces and to enter into an Indemnification Agreement with Roads at the time of  
construction (the security deposit will be used to secure the work).  
Roads  
j. Construction of one (1) new driveway crossing on New Street SE.,  
k. Closure and removal of one (1) existing driveway crossing on New Street SE.,  
l. Rehabilitation of existing driveway crossings, sidewalks, curb and gutter, etc., should  
it be deemed necessary through a site inspection by Roads personnel.  
The attached document outlines the process for providing the security deposit, scheduling  
of work, responsibility for damages, and requesting a refund, if applicable.  
5. Remit payment (certified cheque, bank draft) for the proposed infrastructure listed below  
within the public right-of-way to address the requirements of the Business Units. The  
amount is calculated by the respective Business Unit and is based on 100% of the estimated  
cost of construction.  
The developer is responsible to coordinate the timing or the constriction by City forces.  
The payment is non-refundable.  
Roads  
d. Street lighting upgrading adjacent to New Street if deemed necessary through a site  
inspection by Roads personnel.  
Development Engineering:  
6. Provide satisfactory evidence confirming that the required Maintenance and Repair Access  
(flood barrier) Easement is executed and registered on the applicable title(s); to the  
satisfaction of Real Estate and Development Services.  
Public Infrastructure:  
7. After the Development Permit is approved but prior to its release, the landowner shall  
execute an Off-Site Levy Agreement for the payment of off-site levies pursuant to Bylaw  
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2M2016. The off-site levy is based on a 2021 development approval date and was based  
on the following:  
Phase  
1
Description  
66 New Street SE  
Unit(s)  
New Single: 1  
Based on the information above, the preliminary estimate is $7,373.00.  
Should payment be made prior to release of the development permit, an Off-Site Levy  
Agreement will not be required.  
Include the completed Payment Submission Form, which was emailed to the  
applicant.  
Only certified cheques or bank drafts made payable to the City of Calgary are  
acceptable.  
Permanent Conditions  
The following permanent conditions shall apply:  
Planning:  
8. The development shall be completed in its entirety, in accordance with the approved plans  
and conditions.  
9. No changes to the approved plans shall take place unless authorized by the Development  
Authority.  
10. Upon completion of the main floor, proof of the geodetic elevation of the constructed main  
floor must be submitted to and approved by the Development Authority prior to any further  
construction proceeding. Email confirmation to [email protected].  
11. A Development Completion Permit is required prior to the development being occupied.  
Subdivision:  
12. The development permit has been approved using the proposed parcel property lines for  
the purpose of determining compliance with the relevant rules of the Land Use Bylaw  
1P2007 for the proposed Single Detached Dwelling. Should the actual property lines be  
different than the proposed property lines, the development permit shall be revoked and a  
new development permit shall be required.  
Transportation:  
13. The developer shall be responsible for the cost of public work and any damage during  
construction in City road right-of-ways, as required by the Manager, Transportation  
Planning. All work performed on public property shall be done in accordance with City  
standards.  
14. The approved driveway(s) required for this development must be constructed to the ramp  
grades as shown on the approved Development Permit plans. Negative sloping of the  
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Driveway within the City boulevard is not acceptable. If actual grades do not match the  
approved grades, the developer/owner shall be responsible for all costs to remove and  
reconstruct the entire driveway ramp in accordance with approved grades.  
15. Indemnification Agreements are required for any work to be undertaken adjacent to or  
within City rights-of-way, bylawed setbacks and corner cut areas for the purposes of crane  
operation, shoring, tie-backs, piles, surface improvements, lay-bys, utility work, +15  
bridges, culverts, etc. All temporary shoring, etc., installed in the City rights-of-way,  
bylawed setbacks and corner cut areas must be removed to the satisfaction to the Manager  
of Transportation Planning, at the applicant’s expense, upon completion of the foundation.  
Prior to permission to construct, contact the Indemnification Agreement Coordinator,  
Roads at 403-268-3505.  
Development Engineering:  
16. If during construction of the development, the developer, the owner of the titled parcel, or  
any of their agents or contractors becomes aware of any contamination,  
a. The person discovering such contamination shall immediately report the  
contamination to the appropriate regulatory agency including, but not limited to,  
Alberta Environment, Alberta Health Services and the City of Calgary (311).  
b. On City of Calgary lands or utility corridors, The City of Calgary, Environmental  
and Safety Management division shall be immediately notified (311).  
17. A Geotechnical Report; prepared by a qualified professional, under seal and permit to  
practice stamp; for review and acceptance by the City of Calgary; must be provided after  
construction is complete. This is required to confirm the floodwall is structurally sound  
and impermeable.  
For further details, contact Water Resources River Engineering (directly) at 403-268-  
4683.  
18. The parcel shall be developed in accordance with the recommendations outlined in the  
above noted Geotechnical Report.  
19. The applicant and/or developer are responsible for coordinating any/all applicable City of  
Calgary inspections before, during and after constructing the foundation.  
For further details, contact Water Resources Infrastructure Delivery Inspector at 403-  
660-3997 OR Water Resources River Engineering at 403-268-4683.  
20. Construction of the foundation cannot occur during flood season (which is between May  
15 and July 15; each year).  
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For further details, contact Water Resources River Engineering (directly) at 403-  
268-4683.  
21. Single retaining walls 1.2 m in height or greater or terraced retaining walls 1.2 m in height  
or greater with a horizontal separation between walls of less than 3.6 m (3x height) require  
the approval of a Building Permit prior to construction.  
For retaining wall(s) that meet these criteria, the developer may either:  
g. Include the retaining walls with the Building Permit for the building, or  
h. Apply for a separate Building Permit for the retaining walls.  
It should be noted that the Building Permit for the building in site will not be released until  
the separate Building Permit for site retaining walls is approved.  
22. Portions of the development site is situated within the Floodway; and as such must conform  
to Land Use Bylaw 1P2007, Part 3, Division 3 (or 2P280 for areas downtown)  
23. Portions of the development site is situated within the Flood Fringe; and as such must  
conform to Land Use Bylaw 1P2007, Part 3, Division 3.  
24. No outdoor storage is permitted in the Floodway, as per Land Use Bylaw 1P2007 Part 3,  
Division 3.  
25. The developer/project manager, and their site designates, shall ensure a timely and  
complete implementation, inspection and maintenance of all practises specified in erosion  
and sediment control report and/or drawing(s) which comply with Section 3.0 of The City  
of Calgary Guidelines for Erosion and Sediment Control. Any amendments to the ESC  
document must comply with the requirements outlined in Section 3.0 of The City of  
Calgary Guidelines for Erosion and Sediment Control.  
26. The grades must match the grades indicated on the Development Permit approved plans.  
Upon a request from the Development Authority, the developer or owner of the titled parcel  
must confirm under seal from a Consulting Engineer or Alberta Land Surveyor, that the  
development was constructed in accordance with the grades submitted on the Development  
Permit.  
27. All rooftop drainage shall be controlled with eave troughs and downspouts that direct  
drainage to the street.  
28. No trees, shrubs, buildings, permanent structures or unauthorized grade changes are  
permitted within the utility rights-of-way.  
Parks:  
29. All construction is restricted to private land only; construction access is only permitted  
through existing driveways. At no point during construction are the natural areas adjacent  
to the Bow River to be disturbed.  
30. Prior to the commencement of any development activity or stripping and grading  
operations, the silt protection fencing shall be installed along the construction disturbance  
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line within the northern property line, adjacent to the Bow River. This fencing is to be  
inspected and approved by the Parks Development Inspector at (403) 268-5325.  
31. Drainage from the development site into the adjacent natural area/Bow River is not  
permitted.  
32. All lands below the high water mark (outside property line) are crown lands and for any  
work to be completed in this area, the applicant must have appropriate Provincial and  
Federal approvals under the Public Lands Act, Department of Fisheries and Oceans, the  
Navigable Waters Protection Act, etc.  
Public Infrastructure:  
33. Pursuant to Bylaw 2M2016, off-site levies are applicable.  
34. After approval of the Development Permit but prior to issuance of a Development  
Completion Permit or any occupancy of the building, payment shall be made for off-site  
levies pursuant to Bylaw 2M2016. To obtain a final estimate, contact the Public  
Infrastructure Coordinator, Calgary Approvals Coordination at 403-268-6739 or email  
REASONS  
The Bow River Flood Protection  
[170] The Bow River has a significant impact on the area, both as an amenity and as a threat or  
dangerous presence. A major flood event occurred in 2013 and the Bow River breached its banks  
and flooded many areas in Calgary including some areas of Inglewood. The Proposed  
Development and the surrounding area fall within both the Bow River Floodway and Floodplain.  
The Inglewood Flood Protection Berm (Flood Barrier) was completed in 2012, and was  
successfully tested against a major flood event in 2013.  
[171] Flood protection in the area exists in a variety of forms including flood barriers and controls  
set out in the MDP, the LUB Flood Rules and the Calgary River Valleys Plan. The Flood Barrier  
consists of a mix of walls and earthen berms that have been landscaped to different degrees by  
individual affected properties. It is a key feature of the neighbourhood that must be preserved and  
protected.  
[172] Access to the Flood Barrier for maintenance and repair of flood walls and flood berms is  
entrenched by an easement registered on title to lands, including the subject, which back onto the  
Bow River. The entire easement area was described as resembling “piano keys” and impacts river  
abutting lots to varying degrees.  
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[173] The City and the Applicant entered into an access easement in early 2021 (Barrier  
Easement). The Appellants raised concerns this easement differs from other easements along the  
Flood Fringe in that allows more development in the affected area. The MGB sees no reason to  
analyze the easements to ensure they include identical restrictions, and may lack jurisdiction to do  
so given that easements reflect private agreements.  
[174] In the MGB’s view, the importance of the easements from a land use planning perspective  
is that they ensure the City has adequate access to the berm for repair and maintenance, and that  
development in the easements will not adversely affect the berm’s integrity. The City may  
negotiate easements with landowners to ensure public interest objectives are achieved, and it is  
possible for terms to vary. In this case, the City of Calgary is a party to the Barrier Easement, and  
the City River Engineering Department has reviewed and commented on the Proposed  
Development’s plans. If the Proposed Development does not comply with the either the Barrier  
Easement or development conditions, the City can take appropriate steps to ensure compliance.  
[175] Concerns were raised by the Appellants and several affected persons about the potential  
for the Proposed Development to diminish or compromise the Flood Barrier. The Proposed  
Development will be within the Flood Fringe and portions of the walls of the East and West Houses  
will form part of flood walls in the Flood Barrier as will retaining walls in the rear of the properties.  
However, the Proposed Development complies with the Flood Rules, and the City’s River  
Engineering group has not raised any concerns. Regular inspections are required throughout  
construction to ensure compliance with requirements. Accordingly, the MGB finds no reason to  
suspect the Proposed Development will negatively impact the Flood Barrier; rather, flood  
prevention/mitigation in the area should be improved by the Proposed Development through  
construction of new flood walls, grading and better access to the river.  
[176] Conditions of approval such as conditions 7, and 17 for the East House and conditions 6,  
17, 18 and 20 for the West House will preserve the integrity of the flood prevention measures.  
Statutory Plans  
[177] Pursuant to s. 687(3)(c) of the Act the MGB:  
(c) may confirm, revoke or vary the order, decision or development permit or any  
condition attached to any of them or make or substitute an order, decision or permit  
of its own  
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However, the MGB must comply with applicable statutory plans: Act s. 687(3) (a.2). In this case,  
the relevant statutory plans are the MDP and the Inglewood ARP, where the subject property is  
located.  
[178] The MDP provides a long-term strategy for future growth and is broad and conceptual by  
design. The Proposed Development is an infill development which intends to redevelop a derelict  
duplex into two separate houses, one of which will include a secondary suite. Among other things,  
this proposal directly aligns with the MDP’s objectives of promoting:  
a. strong, diverse residential neighbourhoods;  
b. growth and change in low density neighbourhoods through infill and  
redevelopment; and  
c. innovative and creative designs that foster distinctiveness while recognizing  
the existing character of low-density residential areas.  
[179] The Inglewood ARP recognises the uniqueness and special challenges of this  
neighbourhood.  
The community of Inglewood is significant in the Province of Alberta as the oldest  
settled area of Calgary. This unique area contains the greatest concentration and  
variety of heritage resources in the City; there are over 40 sites of civic and  
provincial significance including six sites designated as Provincial Historic  
Resources. No other Calgary neighbourhood approaches Inglewood in the range  
and breadth of its heritage.  
Parts of Inglewood have further been designated a “Special Character District”, including New  
Street where the subject is located.  
[180] Evidence was provided showing that Inglewood has evolved a great deal over the years.  
One important ARP objective is to support new development and construction to increase the  
neighbourhood’s population. Among the initiatives the ARP supports is infill development. The  
ARP acknowledges this type of housing has been controversial, because the new houses, such as  
those in the Proposed Development, are usually narrower, taller and extend further back into the  
yard, and may cause adjacent older homes a variety of shadowing, privacy, and streetscape  
impacts.  
[181] Section 2.3 requires new residential developments to respect the surrounding housing and  
to contribute to an attractive streetscape. Community consultation is necessary to ensure  
neighbourhood involvement. The ARP notes the quality of new infill housing is very high and  
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replaces deteriorated houses. The ARP also notes the challenges of dealing with potential flooding  
from the Bow and Elbow Rivers and how this impacts redevelopment.  
[182] The MGB concludes the Proposed Redevelopment aligns with the ARP’s goals by  
contributing new high quality housing units to the area, replacing a derelict unoccupied duplex,  
and increasing density. Community consultation took place and the Applicant altered house  
designs to reflect some of that input. Finally, as discussed above, the Proposed Development  
enhances flood protection through improvements to be integrated into the East and West Houses.  
Low Density for Residential Housing Guidelines for Established Communities (Infill Guidelines)  
[183] The Infill Guidelines at 4.1 state these “are statements of principle focussing on issues of  
building compatibility”. Further these “are not intended to prescribe rigid rules or propose specific  
design solutions…”  
[184] Section 2.4.8 of the Inglewood ARP incorporates by reference the Infill Guidelines. These  
guidelines require new construction to be responsive to the local context and to address the  
following design framework:  
1. 4.3.1 Building Setback from Front Property Line (Front Setback) The setbacks  
of new development should respect the established street pattern.  
2. 4.3.3 Building Setback from Side Property Line (Side Setback) One side  
setback should be kept clear in order to provide an unobstructed exterior access  
from the front to the rear of the house.  
3. 4.3.4 Building Setback from Rear Property Line (Rear Setback) The rear  
setback area, in addition to being the garage and/or other accessory building  
location, is an important amenity space that should allow for outdoor activity  
and maintain the pattern of rear amenity space typical of the surrounding  
community.  
4. 4.3.5 Parcel Coverage Parcel coverage for new development should include all  
proposed and future accessory buildings.  
5. 4.3.6 Parking Two on-site parking spaces should be provided to each new  
dwelling unit.  
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6. 4.4 Building Mass New development should respect the existing scale and  
massing of its immediate surroundings.  
7. 4.5.1 Placement of Windows/Second Storey Balconies The privacy of adjacent  
residences should be respected.  
8. 4.5.2 Entry Treatment/Entrances The principal entry should be clearly  
identifiable from the street and located in a manner which respects the privacy  
of the neighbours.  
[185] The Inglewood ARP acknowledges infill redevelopment in inner city communities is often  
contentious, as is the case here. The MGB finds the Proposed Development complies with the  
Infill Guidelines, in that it fulfils each of the eight parameters set out above to a satisfactory degree  
given the current context.  
[186] The degree to which each Infill Guideline must be met is specifically not prescribed. At  
page 14 in s. 4.1 the Infill Guidelines state:  
The guidelines are developed at a level of generalization intended to assist  
applicants to respect the neighbourhood context within which they are working and  
encourage a good design solution, without being restrictive of their architectural  
skills and creativity. They provide an indication of the standard expected and a  
framework within which many design solutions are possible.  
Since the relative importance of the specific guidelines will vary for each project,  
and since there are many ways of meeting a particular guideline, individual  
applications will be evaluated on their own merit. Creative solutions, which meet  
the intent of the guidelines are encouraged.  
The Neighbourhood - Context  
[187] 4.2 of the Infill Guidelines, at pages 15 and 16, provide some insight into interpreting  
context:  
New development should be designed in a manner which is responsive to the local  
context. Context refers to the relationship of a new development to its surroundings;  
that is, to neighbouring housing, the natural characteristics of the site (e.g.,  
escarpment, topography, slope, vegetation), and the surrounding streetscape and  
community...  
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New development may reference both the street and the broader community  
context. The immediate street context represents the most important or primary  
reference when designing a new development. The community context represents  
a secondary context and is a useful reference when no consistent streetscape exists.  
[188] The Inglewood ARP also provides context in the form of its past and its proposed future.  
There has been much redevelopment in the Inglewood area over its more than 135 year existence.  
The neighbourhood contains 37 recognized heritage buildings including the Major Stewart House  
located at 26 New Street, approximately two blocks west of the subject. The neighbourhood has  
been described as eclectic and unique.  
[189] With age come many challenges in maintaining a vibrant and populous community. Many  
houses were built in the early part of the century, and have deteriorated over the years. Extensive  
use has been made of rehabilitation funding. Redevelopment and infill are not only permitted but  
encouraged in the ARP. There has been significant redevelopment throughout the entire  
neighbourhood, and it is clear further redevelopment will continue.  
[190] The Proposed Development is located on New Street and backs directly onto the Bow  
River. New Street (including the New Bow Lane, New Place, Major Stewart Lane and 1203, 1207  
& 1211 15 St SE) is predominantly characterized by single-detached housing (38 buildings/39  
units) with semi-detached housing comprising the only other form (5 buildings/10 units).  
[191] New Street has a mix of older and newer, predominantly single-detached dwellings  
including single and two-story developments. Lot and house sizes vary considerably. Evidence  
was given that other owners have plans for residential redevelopment. Out of a total of 49 units,  
the distributions of sizes are as follows:  
Existing  
Proposed  
less than 1500 square feet  
1500 2500 square feet  
more than 2500 square feet  
10  
29  
-
11  
27  
11  
[192] Where New Street abuts Major Stewart Lane and again at 15th Street, smaller lots on these  
roads abut the rear yards of larger parcels on New Street. The subject property has three lots  
abutting its rear yard. This configuration makes it difficult to characterize New Street as having a  
consistent streetscape.  
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Figure 3: Area Map (Green is the subject property 66 New Street. Red is the area notified of the Appeal Hearing)  
[193] Given the evolving nature of the neighbourhood, the diversity of dwellings, ongoing  
redevelopment, and lack of a consistent streetscape on New Street, it would be inappropriate to  
limit consideration of relevant context to a hyper-local perspective focusing only on properties  
immediately adjacent to or within a house or two of the subject. Using the 60 m referral (shown in  
red in Figure 3) would be preferable, but would still provide an incomplete representation of the  
neighbourhood and expectations as to streetscape.  
[194] A larger view provides a more comprehensive and better informed judgment as to whether  
the proposal meets the objectives of the ARP. A more informed and sensitive view would consider  
characteristics that define or inform the uniqueness of this area. These include the diversity of  
housing forms and ages on New Street, the flood protection measures employed by dwellings on  
New Street which back onto the river, and the historic and evolutionary nature of the Inglewood  
community as a whole. The MGB finds the most appropriate local context in this case is all of  
New Street rather than just the immediately adjacent properties.  
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Land Use Bylaw Variances  
[195] Section 687(3)(d) of the Act establishes criteria for the MGB to consider when granting a  
variance. Context, the purpose of the standard, and the degree of variance may all have a bearing  
on whether the variance is considered justified.  
[196] LUB development standards are generally intended to control how development proceeds.  
In addition to various practical purposes, development standards promote general compatibility  
with existing developments, or preserve neighbourhood character and integrity. For example,  
minimum side yard requirements exist for safety reasons such as fire prevention, to provide access  
for maintenance, or to access a rear yard, for privacy, and for ensuring the use and enjoyment of  
neighbouring properties are not unduly affected. Maximum height standards are related to, among  
other things, ensuring the use and enjoyment of neighbouring properties are not unduly encroached  
on, to reduce the impact of a development on the privacy of the neighbours and to protect access  
to sunlight. Front yard setback standards exist to support safe, integrated streetscapes.  
[197] Section 687(3)(d) allows the appeal board to issue a permit for a development despite non-  
compliance with the LUB if it complies with the uses, and in board’s opinion,  
the proposed development would not (A) unduly interfere with the amenities of the  
neighbourhood, or (B) materially interfere with or affect the use, enjoyment or  
value of neighbouring parcels of land (collectively “Negative Effects”).  
[198] The variance power in 687(3)(d) recognizes it is not always practical or in the public  
interest to apply a single standard in every situation; rather, applying development standards  
requires some flexibility and is context dependent; the appeal board may also need to weigh  
multiple private and public interests to decide whether variance is appropriate.  
[199] In this case, the need for sensitivity to context is amplified in the wording of the LUB,  
where the subject property has a land use designation of Residential Contextual One/Two  
Dwelling (R-C2) District. The Purpose of the R-C2 District is as follows:  
The Residential Contextual One / Two Dwelling District is intended to  
accommodate existing residential development and contextually sensitive  
redevelopment in the form of Duplex Dwellings, Semi-detached Dwellings, and  
Single Detached Dwellings in the Developed Area.  
[Emphasis added]  
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[200] In the R-C2 District, the proposed uses, Single Detached Dwelling (West House) and  
Single Detached/ Secondary Suite (East House), are discretionary uses. The proposed uses for the  
East and West Houses are not in dispute. What is disputed is whether it is appropriate for the  
variances from development standards to be granted. A total of nine variances, three for the East  
House and six for the West House are necessary for the proposal to proceed as planned.  
[201] The variances sought for the East House and West House will be analysed individually,  
and then collectively by house, and finally the cumulative impact of all the variances for the  
Proposed Development will be assessed to determine if it produces unacceptable Negative Effects.  
East House Variances  
[202] Three variances are sought for the East House:  
1. LUB 436: Side property line setback 0.08 metres vs. 1.2 metres or 1.12 metre variance  
for the garage which is 6.7 metres (East House Side Yard Setback);  
2. LUB 438: Building Height 49.80 or a 1.4 metre variance (East House Height  
Variance); and  
3. LUB 341: Driveway width is 1.91 metres wide vs. 3.0 metres or a 1.09 metre variance  
(East House Driveway Variance).  
Side Yard  
[203] The East House consists of a single detached dwelling and a secondary suite over the  
garage. It protrudes into the minimum yard set back on the east by 1.18 metres for about 6.7 metres  
along the length of the garage, not the entire building. This area only abuts one neighbour  
(Immediate East Neighbour) who does not object to this variance.  
[204] The variance is required because the East House was placed very close to the east property  
line (Zero Lot Line) in order to accommodate a driveway on the west side of this house. The East  
and West Houses would share a common driveway thus eliminating two separate access points to  
New Street.  
[205] The Infill Guidelines at 4.3.3 set out that “One side setback should be clear in order to  
provide unobstructed exterior access from the front to the rear of the house”. The East House will  
have access on both sides albeit on the east side via an easement through the neighbouring west  
property.  
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[206] The LUB at 436(7) foresees that side yard setbacks may be reduced to zero where the  
developer and abutting neighbour agree to a certain type of easement. The Immediate East  
Neighbour has granted the Applicant the requisite easement.  
[207] The Appellants and other affected parties are not directly impacted by this variance and  
did not specifically object to it. Rather, their objections were founded on the cumulative impact of  
the variances for the East House including massing of which setbacks are one factor.  
[208] The MGB put significant weight on the Immediate East Neighbour’s evidence that the side  
yard variance does not cause them concern and that the LUB contemplates such variances. The  
MGB agrees the side yard variance of 1.12 meters is acceptable and does not create significant  
Negative Effects in these circumstances.  
Building Height  
[209] The LUB does not prescribe the maximum number of stories for a dwelling. Rather,  
maximum building height is calculated by a formula employing the height of neighbouring houses  
plus a numerical factor. The formula was designed to ensure that new dwellings have a height that  
is sensitive to the height of the homes on neighbouring properties and to ensure sensitive  
integration with the existing scale and character of the neighbourhood.  
[210] The planned height of the East House is 49.60 or 1.43 metres over this maximum. The  
residence has a secondary suite above the garage at the front of the property, and rises to three-  
stories behind the garage - although it appears to be two stories high from the street. The  
garage/secondary suite located at the front of the property comply with the height standards in the  
LUB although the dwelling behind it does not.  
[211] Lots slope down to the Bow River from New Street. The minimum main floor elevation is  
dictated by flood plain requirements set out in the LUB. The Applicant lifted” the building to  
comply with flood plain requirements. The house, as designed, could not “fit” within the maximum  
building height in the LUB, unless the height of each floor of the house was reduced. No evidence  
was presented whether this was feasible.  
[212] The Infill Guidelines at 4.4.1 state lower profiles than set out in the LUB may be more  
appropriate if the established street is characterized by low profile bungalows. This is not the case  
here, because but for the bungalow immediately east of the East House, houses in the vicinity are  
typically two stories tall.  
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[213] The East House would be 1.23 metres higher than the Link Appellant located two doors  
east of the subject and 1.67 metres higher than the Glassco Appellant house located west of the  
West House.  
[214] The MGB finds the fact that the LUB height standards give no consideration for height  
calculations within the flood plain/flood fringe persuasive. These changes were made in 2015  
following the major flood event in Calgary in 2013. The slope at the rear of the East House requires  
the main floor of the structure to be raised to the requisite height. Furthermore, the difference in  
building height between the East House and neighbouring properties is moderate, as is the variance  
of 1.43 metres in the context of New Street.  
[215] The MGB finds the proposed height of the East House is compatible with the  
neighbourhood. The height variance of 1.43 metres is acceptable and does not result in Negative  
Effects.  
Driveway  
[216] The standard driveway width for a drive connecting to a street is 3.0 metres. The East and  
West Houses would share a common driveway about 3.8 metres wide. The East House’s garage  
doors are turned west to face the West House garage doors, and the side of each garage faces New  
Street.  
[217] The East House land would be encumbered by two easements. The first is a cross lot  
easement in favour of the West House permitting joint use of the driveway (Mutual Cross Lot  
Easement). A similar easement would be placed on the West House lot giving the East lot identical  
access. The second is an easement in favour of the City of Calgary permitting access across the lot  
from New Street to the berm (River Easement). The purpose of the River Easement is to enable  
workers and equipment to access the flood berm and the river.  
[218] The Infill Guidelines at 4.3.2 addresses front driveways and encourages unobtrusive front  
driveways and limiting the number of driveways onto a street. Appendix 2 encourages narrow  
driveways on narrow lots such as these.  
[219] Concerns were raised whether space between the two garages is large enough to allow  
vehicles to turn in and out of each garage given the standard turning radius for rear lane garages is  
7 feet (2.13m). The DA did not indicate any concern about the 3.8 metre turning radius nor did the  
Applicant. While the space may be less than ideal, the MGB finds the 3.8-metre-wide drive  
sufficient.  
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[220] The MGB placed weight on the fact that turning the garages to face each other across a  
shared driveway is an advantage, because a single driveway services both dwellings and the  
secondary suite, and avoids the typical configuration of front-facing garages for each house. Fewer  
driveways promote safety. Further, the shared driveway at 3.8 metres in width is much narrower  
than the maximum width for a two-car double garage of 6.7 meters or 3.0 metres each for two  
single garages. This configuration contributes to a welcoming streetscape and maximizes street  
parking space.  
[221] The MGB was strongly persuaded to approve the variance because the common driveway  
enables the City to obtain the River Easement. There are few areas where the Bow River can be  
accessed by equipment in the event of a flood event. The River Easement provides access in  
perpetuity which may prevent significant flood relief or mitigation which benefits both the  
neighbours and the neighbourhood.  
[222] The MGB finds the driveway width variance of 1.09 metres is acceptable and does not  
result in Negative Effects.  
Cumulative Impact of the Variances East House  
[223] The cumulative impact of these three variances is analysed next using relevant Infill  
Guidelines as a framework.  
Context: Infill Guidelines 4.2 New Development should be designed in a manner which is  
responsive to the local context  
[224] As noted earlier, the New Street streetscape is not consistent; accordingly, the MGB finds  
it appropriate to take a broader view than just adjacent homes.  
[225] The predominant form of housing on New Street is two story homes with a front driveway  
and front facing garages. Three nearby modern homes were redeveloped and are two or more  
stories tall (72 New Street, 48 New Street and 1203 15th Street). The Appellants and several  
affected persons believe the Proposed Development does not contribute positively to the  
streetscape citing its mass and modern design. Other affected parties who gave evidence at the  
hearing supporting both revitalization and the proposed design. Beauty, apparently, is in the eye  
of the beholder.  
[226] In the MGB’s opinion, the Proposed Development contributes positively to the streetscape  
by minimizing the size and/or number of driveways. Placing the garage perpendicular to the street  
offers a more aesthetic face than large garage doors. Further, the front faces of the garages are  
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designed to enhance street appeal. Given the eclectic, evolving nature of New Street and the  
neighbourhood, the MGB finds the Proposed Development complements the area without creating  
significant negative effects.  
Building Mass: Infill Guidelines 4.4 - New development should respect the existing scale and  
massing of its immediate surroundings  
[227] Building mass refers to the visual impact of a house in relation to the adjacent buildings. It  
includes elements such as parcel coverage, and building height and depth. The depth of a new  
development together with the front setback forms the overall building depth on the parcel.  
[228] In this case, front and rear yard setback variances are not required for the East House. The  
depth of the East House is about 32 metres.  
[229] There is a secondary suite over the garage, which increases mass; however, the suite itself  
did not require a variance to height standards, and its impact is offset by the benefit of providing  
an additional dwelling in this area. It is noted that creating a diversity of housing forms and  
increasing density are objectives in Inglewood.  
[230] The Proposed Development is designed to reduce the impact of its mass. For example, it is  
based on a side-by-side subdivision of the lot (divide lot in half running from New Street to the  
river), instead of front-to-back (divide into a front, street facing lot and another rear, river facing  
lot accessed via lane along the front lot). The front-to-back form of subdivision has been employed  
for all earlier subdivisions of fifty foot plus lots on New Street, including the subdivision which  
created the Boyle/Saxberg lot; however, that configuration limits river access for the front house,  
presents two vehicular access points at the sidewalk, and places a single-detached house deep into  
the parcel, where even the most carefully considered design would restrict neighbours’ river views  
and natural light.  
[231] Although the depth of the front and rear houses might not have been as large collectively  
as the depth of the East House, the negative impact of two houses would be greater on neighbours  
than the Proposed Development because of where the houses would have to be placed. In response  
to community feedback, the Applicant also reduced the depth of the East House and added a third  
floor to compensate for the smaller footprint.  
[232] The East House lot is abutted to the east by three houses:  
1. #68 New Street is located next door to the east (Immediate East Neighbour) and its rear  
yard is entirely abutted by the East House garage and house;  
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2. #1207 15th Street (Boyle Appellant) is located perpendicular to part of the East House’s  
rear lot; and  
3. #1203 15th Street, known locally as the River House, is also located perpendicular to  
part of the East House’s rear lot.  
[233] The greatest impact will be on the Immediate East Neighbour #68. However, #68 supports  
the Proposed Development and did not express concern over shadowing, building mass or lack of  
privacy; instead, #68 welcomes removal of the existing house, which they consider derelict, as a  
step toward revitalization of the area.  
[234] The Boyle Appellant objects to the mass of the East House, citing a significant reduction  
in sunlight and privacy because the back of the house will extend across part of their rear yard.  
The East House will also be required to build up the rear grade of the lot and to construct a three-  
foot-tall retaining wall and a six-foot-tall fence. A development permit will be required for the  
fence and is not the subject of this appeal. Boyle contends the retaining wall/fence on the shared  
property line will further contribute to excess shadowing.  
[235] The Boyle house is abutted on three sides by five houses, all but one of which are two or  
more story. Any development which extends into the rear yard of the East House - either in depth,  
height or both - will impact Boyle, as will any development by any of its abutting neighbours.  
Having said this, the proposed design mitigates the effects of shadowing by limiting depth (though  
the trade-off is an increase in height to compensate for the smaller footprint). The design also limits  
the impact on privacy by placing transom windows on the west side of the second story to avoid  
overlooking the Boyle house. The neighbours may also be able to work together to preserve  
privacy by saving mature trees, landscaping and by placing window coverings on higher hall  
windows in the East House. Overall, the MGB does not view building mass of the proposed East  
House as creating significant negative effects for the Boyle property.  
[236] #72 New Street (Link Appellant) is located two doors east of the East House. The MGB  
understands this house is designed, in part, to capture sunlight in its windows. The East House will  
extend into its field of vision and cast shadows into this lot later in the day, where it may affect the  
practicality of certain types of plants and garden features.  
[237] The MGB appreciated Ms. Link’s effort to illustrate the impact of shadow through the  
model provided. While of interest, it was not a scientific study and ultimately the MGB did not  
give it significant weight. The Infill Guidelines contemplate a potential requirement for a formal  
sun shadow study where building depth “significantly” exceeds that of neighbouring homes. In  
this case the only neighbouring home that the building depth significantly exceeds is the east  
neighbour, who is in favour of the development. The reduction in front setback for the west side  
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reduces the impact to the rear yard of the west neighbour, and is of less concern. Accordingly, the  
MGB agrees with the City that a formal scientific sun shadow study is not necessary in these  
circumstances, and is satisfied enjoyment of neighbouring and nearby back yards will not be  
unduly diminished.  
[238] Given the configuration of the lots, any redevelopment at the subject site will likely impact  
#72 New Street. Two or more story houses (including #72 and the River House) are typical new  
developments on New Street, and the effects of the proposed development are of a type that can  
be reasonably expected in this neighbourhood. The proposed development’s design has evolved to  
respond to community concerns, and to maximize compatibility, parcel layout, and the privacy of  
neighbouring landowners. Many elements of the massing and design of the Proposed Development  
were introduced in direct response to concerns raised by neighbouring properties, and the MGB  
views the effects on neighbouring and nearby properties, including #72, to be acceptable.  
[239] The Infill Guidelines state that in the absence of a consistent streetscape, the community  
context represents a secondary context and useful reference. In the MGB finds the development is  
consistent with the community context; further, the configuration of the East House development  
complements the overall community by improving the Flood Barrier and providing vehicular  
access to the berm via the River Easement.  
Cumulative Impact  
[240] Taken separately and together, the three variances from the LUB development standards  
are reasonable to support the development of the East House. The MGB considers the side yard  
and driveway setbacks to be relatively minor in these circumstances, and in any event the impact  
of these variations is not significant. The height variation and its impact on the mass of the East  
House development are greater, but in the MGB’s opinion the total impact of the East House  
variances does not constitute a significant Negative Effect. The East House complements the  
neighbourhood and impacts are offset by the benefits of the River Easement and provision of more  
housing - including a secondary suite - in this neighbourhood.  
West House Variances  
[241] Six variances are sought for the West House:  
a. LUB 435: Building setback from the front property line 4.45 metres vs 5.12 metres  
or a 0.67 metre variance (West House Front Setback);  
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b. LUB 336: Eaves projecting into front setback area 1.28 metres vs 0.6 metres or a  
0.68 metre variance (West House Front Projection);  
c. LUB 436: Side property line setback 0.08 metres vs. 1.2 metres or a 1.12 metre  
variance for the length of the garage which is about 6.7 metres (West House Side  
Yard Setback);  
d. LUB 438: Building Height 49.60 or a 1.4 metre variance (West House Height  
Variance);  
e. LUB 360(2) Building Height on a Sloped Parcel. The proposed secondary suite  
exceeds the maximum building height chamfer on the façade at the lower end of  
the parcel (West House Chamfer Height Variance); and  
f. LUB 341: Driveway width is 1.91 m wide vs. 3.0 m or a 1.09 m variance (West  
House Driveway Variance).  
Front Yard Setback and Front Yard Projection Setback  
[242] Front Setback standards exist to maintain the established street patterns and to limit the  
visual impact of a new house on existing homes. The depth of the front yard of new development  
should be consistent with that of other buildings on the street.  
[243] Houses in the area are not aligned the same distance from New Street. The two houses  
immediately to the west (Glassco and Stead Appellants) are situated farther back from the street  
while the house immediately to the east as well #44 and #46 New Street are situated closer to the  
street than the Proposed Development. There is no consistent front setback on New Street.  
[244] The LUB front setback development standard is contextual and calculated using the  
proximity of the adjacent properties to the street. Because the distance of these houses varies from  
the street in opposite directions the setback measure is in effect an average rather than an accurate  
description of the current streetscape. The front setback variances of 0.67 metres and 0.68 metres  
are acceptable because the setbacks respect the established street pattern (such as it is).  
[245] The reduced front yard setbacks reduce building depth proportionally to the variance,  
which minimizes the impact of the Proposed Development on neighbouring landowners’ privacy  
and view, and decreases light obstruction. For all these reasons, the MGB does not find the front  
yard variances create Negative Effects.  
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Side Yard Setback  
[246] The West House consists of a single detached dwelling fronted by a garage perpendicular  
to the street. It protrudes into the minimum yard setback on the east by 1.12 metres for about 6.7  
metres along the length of the garage. The dwelling located behind the garage complies with the  
setback distances in the LUB. The West House only abuts one neighbour (Glassco Appellant) who  
objects to, among other things, this variance.  
[247] The Infill Guidelines at 4.3.3 set out that “One side setback should be clear in order to  
provide unobstructed exterior access from the front to the rear of the house”. The West House will  
have access on its east side via an easement through the East House lot.  
[248] The LUB at s. 436(7) foresees that side yard setbacks may be reduced to zero where the  
developer and abutting neighbour agree to a certain type of easement. The Glassco Appellant has  
refused, as is his right, to grant the Applicant the requisite easement - though the MGB retains  
discretion to waive the setback standard despite noncompliance with this requirement.  
[249] The exercise of the MGB’s discretion to waive the setback standard must be sensitive to  
the impact of the variance on the Glassco property, and a determination as to whether it will  
materially interfere with or affect its use, enjoyment or value. Some of the Glassco’s concerns  
related to fire safety, drainage problems, and access for construction and maintenance. However,  
the MGB is satisfied the proposal addresses these concerns so as to avoid Negative Effects. The  
West House is to be constructed with fireproof, low maintenance materials and access for  
construction is not required. Evidence was given that the West House will drain to the front, not  
the west so as not to create drainage issues with its neighbours.  
[250] In this case, the effect of a zero-lot line development means there is very little space  
between the West House garage and the Glassco carport roof. The lack of space results not only  
from the zero-lot line proposed along the garage of the new development, but also from a similar  
configuration of development on the Glassco property, where the east side of the House includes  
a driveway and carport whose roof also extends to the property line on the other side.  
[251] The Glassco Appellant is concerned that the lack of space between his property and the  
new development will make it difficult to access the carport roof for repair, maintenance, or snow  
removal. It may be that such tasks were carried out in the past via access from the adjacent property  
- though there was no there was no evidence that Glassco’s had an agreement to that effect. While  
the MGB understands such an arrangement would be convenient, it does not consider inability to  
access the neighbour’s property a negative effect of a side yard variance, since private parties have  
no independent right to access neighbours’ land without permission.  
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[252] The MGB observes that access to the carport roof is unlikely to be an everyday requirement  
for use and enjoyment of the Glassco property; further, the zero-lot line is limited to the length of  
the garage, and it is reasonable to expect intermittent access required for maintenance to be  
obtained from the front or back. While the MGB understands this mode of access will be less  
convenient than was formerly possible through the neighbour’s side yard, it does not consider this  
result to be a Negative Effect of the proposed development for the purposes of s. 687(3)(d).  
[253] The Glassco Appellant is also concerned the wall of the garage will create a dark tunnel  
beside his house. East side windows will face the garage wall across the carport. Again, this  
concern is heightened by the fact that the Glassco carport also extends to the property line; any  
residual concerns in this respect appear to be with the existence of the garage itself rather than the  
side yard variance. Siting the garage 1.2 metres from the property line instead at a zero-lot line  
would still create a somewhat similar tunnel effect. In fact, any redevelopment at the subject site  
will impact #64 New Street in a similar fashion. Two or more story houses are typical  
redevelopments on New Street. Unlike the East House, the West House does not have a secondary  
suite above its garage, so the west garage is considerably lower. The garage roof also has a low  
profile which further reduces the impact of the garage on the Glassco house.  
[254] In view of these considerations, the MGB does not find the side yard variance will create  
significant negative effects for the adjacent property. There are also positive reasons to grant the  
variance from a development perspective, since it is required to enable the East and West House  
garages to face each other. The benefits of this arrangement include a safer narrower shared  
driveway rather than two separate driveways, a welcoming streetscape, and no reductions to on  
street parking. The MGB was strongly persuaded that the common driveway enabled the City to  
obtain the River Easement which provides access in perpetuity for equipment to the Flood Barrier,  
which will benefit both the neighbours and the neighbourhood.  
[255] In summary, the MGB finds the 1.12 meter variance will have an impact on the  
neighbouring property, but not to the extent this impact creates Negative Effects for the purposes  
of s. 687(3)(d). In addition, granting the variance will allow a configuration of development that  
results in an overall benefit to the neighbourhood, including the easement between the two  
proposed developments that allows access to the flood berm.  
Building Height  
[256] The planned height of the West House is 49.60 or 1.4 metres over LUB standard and would  
be 1.67 metres higher than the Glassco Appellant to the west. A single-story garage is at the front  
of the property with a three-story dwelling behind the garage.  
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[257] As with the East House, the minimum main floor elevation is dictated by flood plain  
requirements set out in the LUB. The Applicant “lifted” the West House to comply with flood  
plain requirements. The house, as designed, could not “fit” within the maximum building height  
in the LUB, unless the height of each floor of the house was reduced. No evidence was presented  
whether this was feasible.  
[258] The Infill Guidelines at 4.4.1 state lower profiles than set out in the LUB may be more  
appropriate if the established street is characterized by low profile bungalows. This is not the case  
here because but for the bungalow immediately east of the East House, houses in the vicinity are  
typically two or more stories tall.  
[259] The MGB finds the fact that the LUB height standards give no consideration for height  
calculations within the flood plain/flood fringe persuasive. The slope at the rear of the West House  
requires the main floor of the structure to be raised to the requisite height. Furthermore, the  
difference in building height between the West House and neighbouring properties is not excessive  
nor is the variance of 1.4 metres in the context of New Street.  
West House Chamfer Height Variance  
[260] This variance only impacts the west building due to the drop off at the rear of the parcel  
within the floodway in which the grades are to remain undisturbed. The east and west site  
elevations are nearly identical, other than the drop off heading down to the river. Therefore, there  
is negligible impact on the height of the building within the developable area of the parcel and the  
MGB finds it appropriate to exercise its discretion and allow the variance.  
Driveway  
[261] As discussed earlier, the East and West Houses would share a common driveway about 3.8  
metres wide. The West House land would be encumbered by the same two easements (Mutual  
Cross Lot and River Easements) as the East House.  
[262] The MGB finds this variance does not result in Negative Effects and the driveway width  
variance of 1.09 metres acceptable for the same reasons as given for the East House.  
Building Mass: Infill Guidelines 4.4 - New development should respect the existing scale and  
massing of its immediate surroundings  
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[263] Building mass refers to the visual impact of a house in relation to the adjacent buildings. It  
includes elements such as parcel coverage, building height and building depth. Rear yard setback  
variances are not required for the West House.  
[264] The depth of a new development together with the front setback dictates the overall  
building depth on the parcel. The depth of the West House is about 27.74 metres. The Applicant  
reduced the depth of the West House and added a third floor instead in response to community  
feedback.  
[265] As discussed earlier, the Proposed Development is based on a side-by-side subdivision of  
the lot (divide lot in half running from New Street to the river) versus a front to back subdivision.  
The negative impact of two houses from a front to back subdivision would be greater on neighbours  
than the Proposed Development because of where the houses would be placed.  
[266] The Glassco Appellant objects to the mass of the West House, citing a significant reduction  
in sunlight and privacy because the back of the house will extends across about 8.2 meters of their  
rear yard. However, any new development which extends into its rear yard either in depth, height  
or both will impact Glassco. Similarly, although to a lesser extent, any redevelopment at the subject  
site would likely impact #62 New Street (Stead Appellants).  
[267] #62 is not adjacent to the West House unlike the Glassco Appellant who is impacted to a  
greater degree. The MGB finds the Stead Appellants will be impacted by the West House but the  
impact does not result in Negative Effects. The design of the Proposed Development evolved and  
was adapted to respond to community concerns, and to maximize compatibility, parcel layout, and  
the privacy of neighbouring landowners. Many elements of the massing and design of the Proposed  
Development are in direct response to these considerations.  
[268] As previously noted in relation to the East House, two or more story houses are typical  
developments on New Street. The MGB finds the development is consistent with the community  
context and benefits the overall community, including its flood protection measures. The MGB  
encourages these neighbours to work together to preserve privacy by saving mature trees and  
through sensitive landscaping.  
Cumulative Impact West House  
[269] Taken separately and together the six variances to the LUB development standards are  
reasonable to support the development of the West House, and do not create Negative Effects. The  
MGB considers the side yard, front yard and driveway setbacks to be relatively minor in these  
circumstances and in any event the impact of these variations is not significant. The height  
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variation and its impact on the mass of the West House development are more substantial but in  
the opinion of the MGB the total impact of the West House variances does not constitute a  
Negative Effect on use enjoyment or value of neighbouring properties, and results in an overall  
benefit to the community through its thoughtful design, facilitation of access to the berm via the  
River Easement and enhancements to the Flood Barrier.  
Cumulative Impact Proposed Development  
[270] Appellants and affected parties are concerned about the size and scope of the Proposed  
Development. They argue the houses are too big for the size of the lots and the neighbourhood.  
The Applicant argued the Proposed Developments are appropriate for the context of the  
neighbourhood, and is necessary to make it economically feasible. The MGB is persuaded by the  
arguments as to context, but put no weight on financial considerations. While financial viability is  
an important factor in any redevelopment, it plays no role in assessing whether that redevelopment  
produces Negative Effects.  
[271] Redevelopment by its nature creates change, something Inglewood has seen occur  
throughout its history. It is reasonable to expect any infill development on this site will have some  
impact on neighbouring properties, even if fully compliant with the LUB. The question is whether  
the specific features and design of the Proposed Development which trigger the need for variances  
will cause Negative Effects, taking the relevant context into account.  
[272] The Proposed Development complies with the planning and development requirements  
with the exception of the variances which were granted, which the MGB determined would have  
minimal added impact above the development itself. Any impact from the variances granted are  
offset by the benefit to the neighbourhood as a whole with the development of a neglected property  
and the added benefit of a contribution to the ability to access the floodway area for maintenance  
or emergency purposes.  
[273] Overall, the MGB finds the development respects the goals of the statutory plans and LUB,  
is in keeping with the context of the neighbourhood, and will not create negative effects for  
neighbourhood amenities or the use enjoyment and value of neighbouring property. In the MGB’s  
opinion, the proposal represents an overall benefit to the community and justifies the use of  
discretion to grant the requested variances to the LUB standards. Having said this, the MGB  
understands the Proposed Development affects the community in ways that not all residents  
welcome. The MGB encourages all those affected to communicate openly to deal with issues as  
they may arise so as to avoid further conflict and to move forward as a neighbourhood and  
community.  
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Other Approvals  
[274] The landowner/developer is responsible for all other applicable permits or approvals  
required by other enactments (for example, additional development permits, Water Act, Nuisance  
and General Sanitation Regulation, building permits, etc.) from the appropriate authority. The  
MGB is neither granting nor implying any approvals other than that of the development permits.  
Any other approvals are beyond the MGB’s scope of a development appeal. Satisfaction of such  
requirements are the responsibility of the landowner/developer.  
DATED at the City of Edmonton, in the Province of Alberta, this 13th day of January 2022.  
MUNICIPAL GOVERNMENT BOARD  
F. Wesseling, Presiding Officer  
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APPENDIX A  
PARTIES WHO ATTENDED, MADE SUBMISSIONS OR GAVE EVIDENCE AT THE  
HEARING:  
NAME  
CAPACITY  
S. Belvedere  
M. Loewen  
F. Frigo  
DA’s Legal Counsel  
DA’s Representative  
City of Calgary  
S. Davis  
City of Calgary  
L. Evans  
City of Calgary  
J. Agrios  
C. Glassco  
C. Link  
Appellant Legal Counsel for C. Glassco and C. Link  
Appellant  
Appellant  
C. McClary  
P. Stead  
Appellant - Witness  
Appellant  
S. Stead  
Appellant  
P. Boyle  
Appellant (008 Only)  
Development Applicant’s Legal Counsel  
Development Applicant - Owner  
Development Applicant Architect  
Development Applicant Potential Purchaser  
Affected Party  
D. Young  
B. Kernick  
T. Letwiniuk  
G. Carra  
D. Bowles  
S. Carra  
Affected Party  
M. Cobb  
Affected Party  
H. Fenske  
G. Ford  
Affected Party  
Affected Party  
D. Frid  
Affected Party  
E. Frontain  
S. Gadamsetti  
R. Griebel  
S. Gruetzner  
M. Heltay  
P. Heltay  
M. Jesson  
D. Kelly  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
G. Kerr  
Affected Party  
K. Linegar  
Affected Party  
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R. Matthews  
M. McDougall  
M. Ody  
A. Noori  
M. Pink  
L. Robertson  
D. Scharbatke  
R. Schultz  
E. Standen  
L. Stewart  
S. Tumback  
K. Ziprick  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
Affected Party  
APPENDIX B  
DOCUMENTS RECEIVED PRIOR TO THE HEARING:  
NO.  
ITEM (Number of Pages)  
1A 1578  
1A 1579  
2R  
3R  
4R  
Appeal Form 1578 Glassco (30)  
Appeal Form 1579 Glassco (31)  
Reports & Plans 1578 (495)  
Reports & Plans 1579 (490)  
Affected Party map and list (4)  
DA Presentation (75)  
5R  
6R  
Policy Summary (49)  
7R  
8R  
LUB Flood Map 14C (1)  
LUB Map 14C (1)  
9R  
Low Density Residential Housing Guidelines for Established  
Communities (66)  
10R  
11A  
12A  
13A  
14A  
15A  
16A  
17D  
18D  
AVPA (24)  
Appellant Glassco Letter (2)  
Appellant Glassco Presentation (98)  
Appellant Glassco Legal Brief (145)  
Appellant Glassco Report Carol McClary (47)  
Appellant Link Submission (28)  
Appellant Boyle Saxberg (12)  
Applicant Letter (1)  
Applicant Submission (28)  
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19AP  
20AP  
21AP  
22AP  
23AP  
24AP  
25AP  
26AP  
27AP  
28AP  
29AP  
30AP  
31AP  
32AP  
33AP  
34AP  
35AP  
36AP  
37AP  
38AP  
39A  
Wielebski Jesson Submission (1)  
Kelly Submission (2)  
Bowles Submission (38)  
Gruetzner Submission (3)  
Robertson (Inglewood Community Association) Presentation (2)  
Robertson Flood Berm ICA Engineering Consultation (2)  
Robertson DP 2017-1578 & 1579 (2)  
Robertson SB2017-0119 (1)  
Robertson ICA Newsletter (1)  
Heltay Submission (1)  
Griebel Submission (2)  
Keating Submission (2)  
McDougall Submission (2)  
Rogers Submission (2)  
Tumback Submission (2)  
Ody Submission (2)  
Halili Submission (2)  
Wakefield Submission (2)  
Rachiele Submission (1)  
Tumback Submission (rebuttal) (2)  
Boyle and Saxberg Rebuttal (13)  
Glassco Letter (2)  
40A  
41A  
42A  
43D  
44AP  
45AP  
46A  
Glassco Rebuttal Materials (28)  
Glassco Addendum to McClary Report (8)  
Applicant/Developer Final Submission (18)  
Noori Submission (4)  
McDougall Submission (2)  
Boyle PPT (12)  
47A  
Stead Submission (7)  
APPENDIX C  
DOCUMENTS RECEIVED AT THE HEARING:  
NO.  
ITEM  
48A  
Certificate of title  
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APPENDIX D  
DOCUMENTS RECEIVED AFTER THE HEARING:  
NO.  
ITEM  
49A  
50A  
51D  
52R  
53A  
54A  
Legal Brief Regarding Variance Test SubmissionGlassco/Link  
Boyle/Saxberg Variance Test Submission  
Applicant response  
Development Authority Variance Test  
Glassco/Link Rebuttal  
Boyle/Saxberg Rebuttal  
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APPENDIX E  
LEGISLATION  
The Act and associated regulations contain criteria that apply to appeals of planning decisions.  
While the following list may not be exhaustive, some key provisions are reproduced below.  
Municipal Government Act  
Purpose of this Part  
Section 617 is the main guideline from which all other provincial and municipal planning  
documents are derived. Therefore, in reviewing development appeals, every proposal must comply  
with the philosophy expressed in 617.  
617 The purpose of this Part and the regulations and bylaws under this Part is to provide means  
whereby plans and related matters may be prepared and adopted  
(a) to achieve the orderly, economical and beneficial development, use of land and  
patterns of human settlement, and  
(b) to maintain and improve the quality of the physical environment within which patterns  
of human settlement are situated in Alberta,  
without infringing on the rights of individuals for any public interest except to the extent that is  
necessary for the overall greater public interest.  
Permitted and discretionary uses  
Section 642  
642(1) When a person applies for a development permit in respect of a development provided for  
by a land use bylaw pursuant to section 640(2)(b)(i), the development authority must, if the  
application otherwise conforms to the land use bylaw and is complete in accordance with section  
683.1, issue a development permit with or without conditions as provided for in the land use bylaw.  
(2) When a person applies for a development permit in respect of a development that may, in the  
discretion of a development authority, be permitted pursuant to section 640(2)(b)(ii), the  
development authority may, if the application is complete in accordance with section 683.1, issue  
a development permit with or without conditions as provided for in the land use bylaw.  
(3) A decision of a development authority on an application for a development permit must be in  
writing, and a copy of the decision, together with a written notice specifying the date on which the  
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written decision was given and containing any other information required by the regulations, must  
be given or sent to the applicant on the same day the written decision is given.  
(4) If a development authority refuses an application for a development permit, the development  
authority must issue to the applicant a notice, in the form and manner provided for in the land use  
bylaw, that the application has been refused and provide the reasons for the refusal.  
(5) Despite subsections (1) and (2), a development authority must not issue a development permit  
if the proposed development does not comply with the applicable requirements of regulations  
under the Gaming, Liquor and Cannabis Act respecting the location of premises described in a  
cannabis licence and distances between those premises and other premises.  
Stop order  
Section 645  
645(1) Despite section 545, if a development authority finds that a development, land use or use  
of a building is not in accordance with  
(a) this Part or a land use bylaw or regulations under this Part,  
or  
(b) a development permit or subdivision approval,  
the development authority may act under subsection (2).  
(2) If subsection (1) applies, the development authority may, by written notice, order the owner,  
the person in possession of the land or building or the person responsible for the contravention,  
or any or all of them, to  
(a) stop the development or use of the land or building in whole or in part as directed by  
the notice,  
(b) demolish, remove or replace the development, or  
(c) carry out any other actions required by the notice so that the development or use of the  
land or building complies with this Part, the land use bylaw or regulations under this Part,  
a development permit or a subdivision approval,  
within the time set out in the notice.  
(2.1) A notice referred to in subsection (2) must specify the date on which the order was made,  
must contain any other information required by the regulations and must be given or sent to the  
person or persons referred to in subsection (2) on the same day the decision is made.  
(3) A person who receives a notice referred to in subsection (2) may appeal to the subdivision and  
development appeal board in accordance with section 685.  
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Condition of issuing development permit  
Section 650  
650(1) A council may in a land use bylaw require that, as a condition of a development permit’s  
being issued, the applicant enter into an agreement with the municipality to do any or all of the  
following:  
(a) to construct or pay for the construction of a road required to give access to the  
development;  
(b) to construct or pay for the construction of  
(i) a pedestrian walkway system to serve the development,  
or  
(ii) pedestrian walkways to connect the pedestrian walkway system serving the  
development with a pedestrian walkway system that serves or is proposed to serve  
an adjacent development,  
or both;  
(c) to install or pay for the installation of a public utility described in section 616(v)(i) to  
(ix) that is necessary to serve the development, whether or not the public utility is, or will  
be, located on the land that is the subject of the development;  
(d) to construct or pay for the construction of  
(i) off-street or other parking facilities, and  
(ii) loading and unloading facilities;  
(e) to pay an off-site levy or redevelopment levy imposed by bylaw;  
(f) to give security to ensure that the terms of the agreement under this section are carried  
out.  
(2) A municipality may register a caveat under the Land Titles Act in respect of an agreement  
under this section against the certificate of title for the land that is the subject of the development.  
(3) If a municipality registers a caveat under subsection (2), the municipality must discharge the  
caveat when the agreement has been complied with.  
(4) Where, prior to the coming into force of this subsection, an agreement referred to in subsection  
(1) required the applicant to install a public utility or pay an amount for a public utility referred  
to in subsection (1)(c), that requirement is deemed to have been validly imposed, whether or not  
the public utility was located on the land that was the subject of the development.  
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Permit  
Section 683  
683 Except as otherwise provided in a land use bylaw, a person may not commence any  
development unless the person has been issued a development permit in respect of it pursuant to  
the land use bylaw.  
Development applications  
Section 683.1  
683.1(1) A development authority must, within 20 days after the receipt of an application for a  
development permit, determine whether the application is complete.  
(2) An application is complete if, in the opinion of the development authority, the application  
contains the documents and other information necessary to review the application.  
(3) The time period referred to in subsection (1) may be extended by an agreement in writing  
between the applicant and the development authority or, if applicable, in accordance with a land  
use bylaw made pursuant to section 640.1(a).  
(4) If the development authority does not make a determination referred to in subsection (1) within  
the time required under subsection (1) or (3), the application is deemed to be complete.  
(5) If a development authority determines that the application is complete, the development  
authority must issue to the applicant an acknowledgment in the form and manner provided for in  
the land use bylaw that the application is complete.  
(6) If the development authority determines that the application is incomplete, the development  
authority must issue to the applicant a notice in the form and manner provided for in the land use  
bylaw that the application is incomplete and that any outstanding documents and information  
referred to in the notice must be submitted by a date set out in the notice or a later date agreed on  
between the applicant and the development authority in order for the application to be considered  
complete.  
(7) If the development authority determines that the information and documents submitted under  
subsection (6) are complete, the development authority must issue to the applicant an  
acknowledgment in the form and manner provided for in the land use bylaw that the application  
is complete.  
(8) If the applicant fails to submit all the outstanding information and documents on or before the  
date referred to in subsection (6), the application is deemed to be refused.  
(9) If an application is deemed to be refused under subsection (8), the development authority must  
issue to the applicant a notice in the form and manner provided for in the land use bylaw that the  
application has been refused and the reason for the refusal.  
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(10) Despite that the development authority has issued an acknowledgment under subsection (5)  
or (7), in the course of reviewing the application, the development authority may request  
additional information or documentation from the applicant that the development authority  
considers necessary to review the application.  
(11) Repealed 2020 c39 s10(49).  
Permit deemed refused  
Section 684  
684(1) The development authority must make a decision on the application for a development  
permit within 40 days after the receipt by the applicant of an acknowledgment under section  
683.1(5) or (7) or, if applicable, in accordance with a land use bylaw made pursuant to section  
640.1(b).  
(2) A time period referred to in subsection (1) may be extended by an agreement in writing between  
the applicant and the development authority.  
(3) If the development authority does not make a decision referred to in subsection (1) within the  
time required under subsection (1) or (2), the application is, at the option of the applicant, deemed  
to be refused.  
(4) Section 640(5) does not apply in the case of an application that was deemed to be refused under  
section 683.1(8).  
Grounds for appeal  
Section 685  
685(1) If a development authority  
(a) fails or refuses to issue a development permit to a person,  
(b) issues a development permit subject to conditions, or  
(c) issues an order under section 645,  
the person applying for the permit or affected by the order under section 645 may appeal the  
decision in accordance with subsection (2.1).  
(1.1) A decision of a development authority must state whether an appeal lies to a subdivision and  
development appeal board or to the Municipal Government Board.  
(2) In addition to an applicant under subsection (1), any person affected by an order, decision or  
development permit made or issued by a development authority may appeal the decision in  
accordance with subsection (2.1).  
(2.1) An appeal referred to in subsection (1) or (2) may be made  
(a) to the Municipal Government Board  
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(i) unless otherwise provided in the regulations under section 694(1)(h.2)(i), where  
the land that is the subject of the application  
(A) is within the Green Area as classified by the Minister responsible for  
the Public Lands Act,  
(B) contains, is adjacent to or is within the prescribed distance of a  
highway, a body of water, a sewage treatment or waste management facility  
or a historical site,  
(C) is the subject of a licence, permit, approval or other authorization  
granted by the Natural Resources Conservation Board, Energy Resources  
Conservation Board, Alberta Energy Regulator, Alberta Energy and  
Utilities Board or Alberta Utilities Commission, or  
(D) is the subject of a licence, permit, approval or other authorization  
granted by the Minister of Environment and Parks,  
or  
(ii) in any other circumstances described in the regulations under section  
694(1)(h.2)(ii),  
or  
(b) in all other cases, to the subdivision and development appeal board.  
(3) Despite subsections (1) and (2), no appeal lies in respect of the issuance of a development  
permit for a permitted use unless the provisions of the land use bylaw were relaxed, varied or  
misinterpreted or the application for the development permit was deemed to be refused under  
section 683.1(8).  
(4) Despite subsections (1), (2) and (3), if a decision with respect to a development permit  
application in respect of a direct control district  
(a) is made by a council, there is no appeal to the subdivision and development appeal  
board, or  
(b) is made by a development authority, the appeal is limited to whether the development  
authority followed the directions of council, and if the subdivision and development appeal  
board finds that the development authority did not follow the directions it may, in  
accordance with the directions, substitute its decision for the development authority’s  
decision.  
Appeals  
Section 686  
686(1) A development appeal is commenced by filing a notice of the appeal, containing reasons,  
with the board hearing the appeal  
(a) in the case of an appeal made by a person referred to in section 685(1)  
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(i) with respect to an application for a development permit,  
(A) within 21 days after the date on which the written decision is given  
under section 642, or  
(B) if no decision is made with respect to the application within the 40-day  
period, or within any extension of that period under section 684, within 21  
days after the date the period or extension expires,  
or  
(ii) with respect to an order under section 645, within 21 days after the date on  
which the order is made,  
or  
(b) in the case of an appeal made by a person referred to in section 685(2), within 21 days  
after the date on which the notice of the issuance of the permit was given in accordance  
with the land use bylaw.  
(1.1) Where a person files a notice of appeal with the wrong board, that board must refer the  
appeal to the appropriate board and the appropriate board must hear the appeal as if the notice  
of appeal had been filed with it and it is deemed to have received the notice of appeal from the  
applicant on the date it receives the notice of appeal from the first board, if  
(a) in the case of a person referred to in subsection (1), the person files the notice with the  
wrong board within 21 days after receipt of the written decision or the deemed refusal, or  
(b) in the case of a person referred to in subsection (2), the person files the notice with the  
wrong board within 21 days after the date on which the notice of the issuance of the permit  
was given in accordance with the land use bylaw.  
(2) The board hearing an appeal referred to in subsection (1) must hold an appeal hearing within  
30 days after receipt of a notice of appeal.  
(3) The board hearing an appeal referred to in subsection (1) must give at least 5 days’ notice in  
writing of the hearing  
(a) to the appellant,  
(b) to the development authority whose order, decision or development permit is the subject  
of the appeal, and  
(c) to those owners required to be notified under the land use bylaw and any other person  
that the subdivision and development appeal board considers to be affected by the appeal  
and should be notified.  
(4) The board hearing an appeal referred to in subsection (1) must make available for public  
inspection before the commencement of the hearing all relevant documents and materials  
respecting the appeal, including  
(a) the application for the development permit, the decision and the notice of appeal, or  
(b) the order under section 645.  
(4.1) Subsections (1)(b) and (3)(c) do not apply to an appeal of a deemed refusal under section  
683.1(8).  
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(5) In subsection (3), “owner” means the person shown as the owner of land on the assessment  
roll prepared under Part 9.  
Hearing and Decision  
Section 687  
687(1) At a hearing under section 686, the board hearing the appeal must hear  
(a) the appellant or any person acting on behalf of the appellant,  
(b) the development authority from whose order, decision or development permit the  
appeal is made, or a person acting on behalf of the development authority,  
(c) any other person who was given notice of the hearing and who wishes to be heard, or  
a person acting on behalf of that person, and  
(d) any other person who claims to be affected by the order, decision or permit and that  
the subdivision and development appeal board agrees to hear, or a person acting on behalf  
of that person.  
(2) The board hearing the appeal referred to in subsection (1) must give its decision in writing  
together with reasons for the decision within 15 days after concluding the hearing.  
(3) In determining an appeal, the board hearing the appeal referred to in subsection (1)  
(a) repealed 2020 c39 s10(52);  
(a.1) must comply with any applicable land use policies;  
(a.2) subject to section 638, must comply with any applicable statutory plans;  
(a.3) subject to clauses (a.4) and (d), must comply with any land use bylaw in effect;  
(a.4) must comply with the applicable requirements of the regulations under the Gaming,  
Liquor and Cannabis Act respecting the location of premises described in a cannabis  
licence and distances between those premises and other premises;  
(b) must have regard to but is not bound by the subdivision and development regulations;  
(c) may confirm, revoke or vary the order, decision or development permit or any condition  
attached to any of them or make or substitute an order, decision or permit of its own;  
(d) may make an order or decision or issue or confirm the issue of a development permit  
though the proposed development does not comply with the land use bylaw if, in its opinion,  
(i) the proposed development would not  
(A) unduly interfere with the amenities of the neighbourhood, or  
(B) materially interfere with or affect the use, enjoyment or value of  
neighbouring parcels of land,  
and  
(ii) the proposed development conforms with the use prescribed for that land or  
building in the land use bylaw.  
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(4) In the case of an appeal of the deemed refusal of an application under section 683.1(8), the  
board must determine whether the documents and information that the applicant provided met the  
requirements of section 683.1(2).  
Subdivision and Development Regulation - Alberta Regulation 43/2002  
Security conditions  
Section 18  
18(1) A development authority may  
(a) require an applicant for a development permit to provide information regarding the  
security and crime prevention features that will be included in the proposed development,  
and  
(b) attach conditions to the development permit specifying the security and crime  
prevention features that must be included in the proposed development.  
(2) Subsection (1) applies even if the land use bylaw does not provide for those conditions to be  
attached to a development permit.  
Approval by council not part of development permit application  
Section 18.1  
18.1 A development authority may not require, as a condition of a completed development permit  
application, the submission to and approval by council of a report regarding the development.  
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