Pirnie v. Planning Commission of The City of Calgary

Calgary Subdivision and Development Appeal Board

PO Box 2100, Station M, #8110

Calgary, AB T2P 2M5

Email: [email protected]

CALGARY SUBDIVISION AND DEVELOPMENT APPEAL BOARD

Citation: 2022 CGYSDAB 0012a&b

Case Name: SDAB2022-0012a&b (Re)

File No: DP2021-3689

Appeal by:

Liz Pirnie

Marzena Borkowska

Appeal against:

Hearing dates:

Calgary Planning Commission of The City of Calgary

March 31, 2022

May 26, 2022

Decision date:

June 15, 2022

Board members:

Bill Chomik, Presiding Officer

Katherine Camarta

Andrew Orr

Jamila Premji

Romeo Rojas

DECISION

FILE NO. DP2021-3689

APPEAL NO. SDAB2022-0012a&b

Description of Application:

1

The appeal before the Subdivision and Development Appeal Board was brought

by Liz Pirnie and Marzena Borkowska.

2

On February 10, 2022, the Development Authority approved the application of

Systemic Architecture for a New: Dwelling Units (2 buildings), Health Care Centre,

Restaurant: Licensed and Drive Through at 4503, 4507 and 4511 17 Avenue SW in the

community of Glendale. The property is owned by Anna and Lance Dowd and has a land

use designation of Direct Control District 231D2019. The proposed development is a

discretionary use within the district.

Procedural History:

3

The hearing commenced on March 31, 2022, with consideration of procedural

issues. The Board adjourned the hearing to May 26, 2022. The hearing was held by video

conference and concluded on May 26, 2022.

Decision:

4

The appeal is allowed in part and the decision of the Calgary Planning Commission

is varied. A development permit shall be issued as approved by Calgary Planning

Commission with the following required additional Prior-to-Release Conditions:

Prior-to -Release Conditions:

1. The applicant shall provide three sets of revised plans satisfactory to the

Development Authority showing that the acoustic fence extends along the entire

length of the south property line abutting the lane with a height of 2.44 metres from

grade. The entire fence structure shall consist of an acoustic screen with materials

as shown from page 642 of the Board Report, Site Details drawing, DP-1.4.

2. The applicant shall provide three sets of revised plans satisfactory to the

Development Authority indicating that a vertical or freestanding sign approximately

1.8 metres above grade shall be added on the parcel clearly visible to patrons

exiting the Drive Trough indicating that no right turn onto Glenmount Drive SW is

allowed, when exiting the parcel from the Drive Through.

Submissions:

5

The Board received oral and/or written submissions from:

a) Mr. Derek Pomreinke, for the Development Authority;

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Mr. Jason Bell, transportation department, City of Calgary;

Ms. Liz Pirnie, co-appellant;

b)

c)

d)

e)

f)

Mr. Doug Roberts, agent to Ms. Liz Pirnie;

Ms. Marzena Borkowska, co-appellant;

Mr. Wayne Moorehead, a neighbour in support of the appeal;

Ms. Eileen Capes, a neighbour in support of the appeal;

Ms. Shannon Armstrong, a neighbour in support of the appeal;

Mr. Rick Grol, agent to the applicant/property owners;

Mr. Chad Russill;

g)

h)

i)

j)

k)

l)

Mr. Amrit Uppal;

Mr. Brendan Stevenson; and

m)

Mr. Clifford Faszer.

6

The Board also received and acknowledges written submissions from Clifford

Samuel, Ollga Gjergji, Nikollaq Gjergji, Scott Moffatt, and Cailen Henry in favour of the

appeal and Adam Fellows against the appeal. These letters are contained in the Board

Report.

Background and Summary of Evidence:

Preliminary Issues

Late Submissions

7

At the outset of this hearing, the Board noted two late submissions from Mr. Doug

Roberts had been received. The Board sets out its procedures and deadlines for a

reason, particularly when undertaking virtual hearings. The Board determined that the

late submissions were denied. However, parties were invited to speak to any such late

submissions verbally if such were deemed relevant by the Board.

Affected persons and representation

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8

Mr. Grol submitted that Mr. Roberts was not an affected person for the appeal

because he lives 400 metres away from the proposed development.

9

Mr. Roberts stated that he lives approximately two blocks from the proposed

development. He submitted that he was an affected person in regard to the proposed

development and further noted that he drives past the proposed development to the LRT

station.

10

Ms. Pirnie noted that she would appoint Mr. Roberts as her representative in the

appeal if the Board found that he was not an affected person to the proposed

development.

11 After consideration, the Board determined that Mr. Roberts was not an affected

party in this matter, however, he was allowed to represent Ms. Pirnie only with her

concerns with the proposed development.

12

The Board determined that Mr. Roberts lives two blocks or approximately 400

metres from the development and notes that the standard protocol for notifying affected

parties of an appeal are parcels located within a 60-metre radius. In the Board’s view, he

is too far away to be materially affected and he could not visibly see the development

from his property. On this basis, the Board determined Mr. Roberts was not an affected

party.

Submissions of the Development Authority

13

Mr. Pomreinke stated that the application is for a New: Dwelling Unit (2 buildings),

Health Care Service, Restaurant: Licensed Drive-Through on three parcels located at

4503, 4507 and 4511 17 Avenue SW in the community of Glendale. The site is designated

as Direct Control District (DC Bylaw 231D2019).

14

The property is approximately 0.18 hectares in size with approximate dimensions

of 58 metres wide by 30 metres deep. Each of the three parcels is currently developed

with a single detached dwelling. Two of the parcels have accessory buildings. The

surrounding land use includes single-detached houses to the east, south and west of the

proposed development, a commercial development to the northwest, a community

institution to the north, and a townhouse development further to the northeast of the

proposed development.

15 He referred to the site photos contained on pages 513 to 517 of the Board Report

showing the view of the subject site to the east, west and northwest. The white circles on

the image on page 513 indicate the nearby bus stops. The subject site is located within

80 metres of the 45^thStreet LRT Station.

16 Mr. Pomreinke pointed out that the Development Authority engaged the community

during the review of the application. The site was notice posted and the permit package

was circulated to affected parties. The Development Authority received letters of support

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from the Community Association and a resident. It received 44 letters of objection to the

proposed development indicating concerns regarding traffic and parking, unwanted drive

through, pedestrian safety, noise pollution, litter, reduction in value of neighbouring

homes, and an increase in crime and vagrancy in the community.

17

The community of Glendale does not have a local area plan; hence the proposed

development is guided by the policies within the Municipal Development Plan (MDP), the

Transit-Oriented Development Design Guidelines (TOD), the West LRT Land Use Study,

and the Direct Control District Bylaw.

18

The Municipal Development Plan identifies the proposed subject site as being

under the Developed Residential – Established Area. It encourages development that

supports the revitalization of local communities by adding population and a mix of

commercial and service uses. Mr. Pomreinke stated that the proposed development

aligns with this policy along with the policy that calls for the creation of a range of housing

opportunities and choices.

19

Mr. Pomreinke stated that the purpose of the Transit-Oriented Development Policy

is to ensure that land uses around transit stations encourage transit use, increase density

around transit stations, and ensure that each station area becomes a hub of mixed-use

activity. He pointed out that the Guidelines list drive-through as non-transit supportive,

however, the land use amendment for the existing district specifically added Drive

Through as a discretionary use under the Direct Control District.

20

The Direct Control District Bylaw is intended to accommodate a mix of residential

and commercial uses, provide contextually sensitive development, and allow for a drive-

through and public space. He pointed out that the Direct Control Bylaw has a maximum

Floor Area Ratio (FAR) of 2.5 and a building height of 11 metres. The proposed

development has a FAR of 0.4, and all elevations of the building also comply with the

height rules.

21

The approved site plan on page 522 of the Board Report shows Building A to the

east is proposed to include a restaurant on the main floor which would require the use of

a drive-through and three dwelling units on the second floor. Building B is proposed to

include a medical office on the main floor and three dwelling units on the second floor.

The six dwelling units are accessed from exterior walkways connected by stairs to the

ground floor of each building.

22

The common amenity space is provided through the exterior walkway with a

designated sitting area. The plans also indicate that 17 trees and 64 shrubs will be planted

on the parcel. There are 13 vehicle parking stalls for the commercial units, six class one

and four class two bicycle stalls.

23

Mr. Pomreinke stated that the proposed development required seven (7) Bylaw

relaxations. He pointed out that Section 185 of the Bylaw provides that if a drive through

has outdoor speakers, it must not be located within 23 metres of a property line of a

residential district or must be separated from a residential district by a building. The plans

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indicate that the Drive Through speaker is located 10.45m from a residential parcel and

not separated by a building. The applicant proposed an acoustic wall and noted that the

Bylaw defines a building as anything constructed on or below the ground, hence the

acoustic wall qualifies as a building. He noted that the Development Authority did not do

an acoustic analysis of the wall but relied on the analysis done by the applicants. He

further stated that in the opinion of the Development Authority, the Drive Through speaker

is separated from the adjacent residential district by a building in the form of an acoustic

fence wall and therefore conforms to the requirements of the Bylaw and it does not

constitute a relaxation.

24

The first relaxation is in regard to Section 281 of the Bylaw that provides that a

restaurant must not have any openings (except emergency exits, loading bay doors or

non-opening windows) on a façade that faces a residential district or abuts a lane

separating the parcel from a residential district. The plans indicate the Drive Through

window on the south elevation of Building A. In the opinion of the Development Authority,

the acoustic wall and fence will reduce any impacts of the opening, hence the relaxation

was supported.

25

The second relaxation is regarding Section 1342 of the Bylaw that provides that

the façade of a building located on the floor closest to grade and facing a street must

provide windows with unobscured glass that: (a) occupy a minimum of 65% of the façade

between the heights of 0.6 metres and 2.4 metres. Mr. Pomreinke stated that the

relaxation was granted because the site has low-density residential development

immediately adjacent to the parcel and an excessive amount of glass would seem too

commercial and would take away from the village feel of the project.

26

The third relaxation regarding Section 1373 of the Bylaw provides that the

maximum length of the building façade that faces a street containing an individual use on

the floor closest to grade is 15 metres. He pointed out that this rule intends to create a

frequent pedestrian environment. The plans indicate a façade length of 25.87 metres on

the north façade of Building B where the medical office will be located. The relaxation

was granted because the long façade of Building B is offset by the outdoor plaza that

faces the same street in front of Building A. This provides visual interest to pedestrians

on the street.

27

The fourth relaxation regarding Section 1349 of the Bylaw provides that the

dimension for common amenity space must not be less than 6.0 metres. The plans

indicate a dimension of 5.47 metres. In the opinion of the Development Authority, this

was considered a minor relaxation and supported.

28

The fifth relaxation was regarding Section 1362 of the Bylaw that provides that the

height of a fence above grade, at any point along a fence line, must not exceed 1.2 metres

for that portion of the fence extending beyond the foremost portion of all buildings on the

parcel. The plans indicate a fence height of 1.83 metres along the south property line that

extends 0.23 metres beyond the foremost front façade of Building A. Mr. Pomreinke

stated that the relaxation was granted because of the location of the drive-through next

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to the lane and the height of the fence was considered appropriate to help screen and

reduce the visual and noise impacts of the Drive Through.

29

The last two relaxations were regarding parking. The residential units require four

parking stalls and one visitor stall. The plans indicate zero residential and visitor parking

stalls are provided. There are 13 stalls on the site plan, but none have been designated

for the units and they will be used for both commercial and residential visitors. He noted

that the parking study provided by the applicant showed support for residential units

tailored for car-free living. He pointed out that the conditions of approval restrict the

residents from obtaining on street parking permits in the area.

30

The Development Authority granted temporary relaxations that are to be resolved

prior to the release of the permit as noted in the Conditions of Approval. These relaxations

are noted on page 526 of the Board Report. The Bylaw provides that where a parcel

shares a property line with a parcel designated as a low-density residential district, the

rear setback area must have a minimum depth of 3 metres. The plans indicate that the

rear setback of Building B is 0.90 metres. Section 1334 of the Bylaw provides that building

and air conditioning units must not be located in any setback area and eaves may not

project beyond a maximum of 0.6 metres. The plans indicate Building B projects into the

rear setback area and the eaves project 2.23 metres into the rear setback area. He

pointed out that the applicant submitted amended site plans that show the area that

projects into the setback are no longer enclosed and do not constitute part of the building

and is surrounded by a fence.

31

Section 1347 of the Bylaw provides that all areas on a parcel (not including those

portions specifically required for motor vehicle access, sidewalks, or any other purpose

allowed by the Development Authority) must be a soft-surfaced landscaped area. The

plans indicate a portion of the west setback is not soft-surfaced landscaping. Mr.

Pomreinke however noted that the amended site plans label these areas as soft-surfaced

landscaped areas.

32

Mr. Pomreinke concluded that in the opinion of the Development Authority, the

proposed development complies with Council’s direction set out in the Direct Control

District, the Land Use Bylaw 1P2007 and each of the relaxations granted meets the test

set out in Section 36 of the Bylaw.

33

Mr. Jason Bell from the transportation department stated that there is a road

marking that shows a left turn arrow for vehicles exiting the Drive Through. This will

mitigate any traffic into the community. There is however no provision to enforce or

monitor the road signs to ensure that drivers exiting the Drive Through turn left onto 17^th

Avenue SW. He stated that they would be receptive to allowing the installation of vertical

signage as an addition.

34

He confirmed that the proposed development is within a residential parking permit

zone, however there is a permanent condition that restricts future residents from

obtaining a resident parking permit for the area.

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Submissions of the appellants

35

Ms. Pirnie referred to the image on pages 459-460 which shows her view directly

adjacent to the proposed Drive Through exit. She stated that decisions on the Drive

Through must be based on relevant and contemporary research that includes

comparisons to other comparable drive through developments and a complete logistical

viability analysis.

36

She noted that the traffic count and signal warrant analysis was done in November

2021, post-pandemic when the traffic was light, and most people worked from home. The

report stated that the location is used by 28-32 vehicles per hour during morning and mid-

day periods. During the afternoon rush, this increases to 44 vehicles per hour suggesting

up to 12 vehicles per hour (1 vehicle every 5 minutes) may be currently using the roadway

to shortcut.

37

She submitted that the report did not account for the time it takes to join eastbound

or westbound traffic on 17^thAvenue from Glenmount Drive at peak hours which will be

further aggravated by the presence of a drive through. She noted that in her opinion, five

vehicles will fit between the stop sign at 17^thAvenue and the exit of the Drive Through.

38

In addition, the report stated that the Drive Through will generate 86 outbound

trips/vehicles per hour during morning peak hours, and roughly half of that in the

afternoon peak hours. She pointed out that exiting onto 17^thAvenue was already battling

with traffic, and an additional 86 cars per hour in addition to the approximately 30 resident

vehicles will place a bigger strain on the traffic and frustrated drivers will feel forced to go

up Glenmount Drive SW to seek a more accommodating route, regardless of signage

indicating that it is not permitted.

39

Ms. Pirnie referred to the drive through queue generation study done by a US

Midwest firm, which noted that the average maximum queue at a coffee shop was 11

vehicles and the 85th percentile maximum queue was 13 vehicles. She pointed out that

the report further noted that spill-over traffic is a common occurrence, not an exception

and some drive through locations can cause unexpected significant and disruptive

spillover volumes. She stated that this is likely to occur if the proposed Drive Through is

allowed.

40

In addition, she noted that the location of the drive through that was compared to

by the applicant was different from the proposed location. The coffee drive through

comparisons were located on the edge of town with less traffic and in a commercial

parking lot; the proposed site for the Drive Through, however, is located close to a high

traffic intersection, high-density traffic corridor, LRT, fire and police stations, and at the

entrance of a community. She submitted that the comparison should have been done

with a drive through coffee shop with similarity to the proposed site.

41

She concluded that the drive through analysis report relied on by the applicant is

based on outdated data and lacks validity, reliability, and veracity and the proposed Drive

Through should not be allowed in the location.

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APPEAL NO. SDAB2022-0012a&b

42

Mr. Roberts, agent to Ms. Pirnie, stated that the inclusion of the Drive Through at

the proposed location was not appropriately considered by the Development Authority. It

is not an appropriate use in the core area of the LRT station.

43

He noted that the appeal is limited to whether the Development Authority followed

the direction of Council in the approval. He stated that Drive Through is a discretionary

use in the district and that the direction of the Council was to scrutinize the proposed

development as appropriate use. He submitted that the Development Authority did not

approach the proposed Drive Through as a discretionary use but as a permitted use, thus

they did not exercise their discretion properly in approving the proposed development.

44

Ms. Borkowska, co-appellant, lives directly across the back alley from the

proposed development. She aligned herself with the submissions of Ms. Pirnie and noted

that the proposed development ought to have gone through extreme scrutiny in line with

Council's direction, but it was never done before it received approval. There was no

consideration given to the residents and adjacent neighbors, the air quality that will be

affected by the vehicles in the drive-through queue, the effect of speakers and drive-

through window facing residential properties, and the 2-metre difference in elevation

between the proposed development and properties directly south of the building.

45

She noted that based on the elevation of her building, she will be faced with a view

of vehicles from the proposed Drive Through’s access drive which would inevitably

expose her home to continuous noise from the vehicles and speakers.

46

She noted that the pollution that will emanate from the vehicles that are idling at

the Drive Through would have an adverse effect on her. She pointed out that air pollution

is recognized globally as a major contributor to the development of disease and

premature death. She submitted that the proposed development will negatively affect her

quality of life and enjoyment. She will be subjected to a 24/7 continuous noise of

commercial activities, Drive Through interactions, and vehicle idle.

47

In addition, she pointed out that the proposed acoustic wall is insufficient as a

sound barrier and does not take into account the two-metre upward elevation change of

her building directly south of the project.

48

She pointed out that 17^thAvenue SW is a busy daily commuter road vital to Police,

Fire, and EMS stationed across from the proposed development, which has only one

access point and will create additional traffic issues on the already congested roadway.

The Drive Through path, as proposed, is exiting onto a residential street opposite a

residential property.

49

In conclusion, Ms. Borkowska noted that the proposed development will create

dangerous precedence with inadequate opportunity for oversight and mitigation by the

affected communities, resulting in a loss of property value, uncharacteristic community

changes, disregard for City of Calgary green initiatives, i.e., the policy of not allowing the

construction of drive throughs on the Green Line LRT.

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Submissions in favour of the appeal

50

Mr. Moorehead lives adjacent to the proposed development. He noted that the

Community Association supported the proposed development on the wrong assumption

that it would serve as a social gathering point for the residents of Glendale, whereas it is

meant for the commuter traffic passing through the community. He pointed out that the

endorsement of the Community Association does not reflect the views of the residents.

51

Ms. Capes noted that the Bylaw relaxations that were to allow a Drive Through in

a residential neighbourhood near an LRT station did not make adequate protection for

the adjacent homes.

52

She stated that the proposed acoustic wall is not a building but a wooden fence.

Furthermore, the Bylaw relaxations cite the noise assessment study provided by the

applicant, however, the noise assessment study only refers to the material being used in

the proposed fence and makes no reference at all to the height differences of the

proposed development to the surrounding residential units. The ground in the

neighbourhood slopes upward, and the homes directly to the south of the development

sit two metres higher than the development. This issue is fundamental and was not

covered in the noise assessment done before and after the relaxations were granted.

53

She referred to the diagrams on page 674 of the Board Report and explained that

because of the way sound travels, it will propel above the proposed fence unto the

adjacent homes. The impact of sound is greater because of the elevation difference.

54

Ms. Capes noted that the proposed 18 hours of operation of the Drive Through will

negatively impact the residents who will be left with only six hours a day of sleep,

especially because there is no sound mitigation. She submitted that under the Community

Standards Bylaw, residents have the right to not be disturbed by noise. She suggested

that a restriction be placed on the hours of operation that does not disrupt the residents

outside of the times mandated in the Community Standard Bylaw.

55

She stated the proposed Drive Through contradicts the recommendation of the

Municipal Development Plan, the Transit-Oriented Development, and the West LRT Use

Study. It also affects the use and enjoyment of her property and that of other residents.

56

Ms. Armstrong lives directly west of the proposed development. She raised

concerns about how the applicant had initially proposed a gabion wall for a sound

reduction but has now changed to a 6-foot fence. She also noted the possibility of barriers

erected at the end of her back alley to prevent people from turning right when exiting the

proposed Drive Through.

Submissions of the applicant – from page 529

57

Mr. Grol stated that the Board’s jurisdiction regarding the appeal is limited by

section 685(4)(b) of the Municipal Government Act to determine whether the

Development Authority followed the directions of Council. If the Board determines that

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the Development Authority followed the directions of Council, the appeal should be

denied. If the Board determines the Development Authority did not follow the directions

of Council, then the Board may substitute its own decision where such discretion is

permitted.

58

He noted that the directions of the Council are as set out in the Direct Control

Bylaw which allows for a Drive Through and a Public Gathering Space. He submitted that

the proposed Drive Through is an appropriate use of the subject site and aligns with the

direction of Council.

59

He pointed out that the applicant had submitted the plans for the proposed

development, including the Drive Through, to Council prior to the zoning of the site to a

Direct Control District, and Council determined that a Drive Through was an appropriate

use on the subject site.

60

Mr. Grol submitted that the proposed development meets the specific provisions

of the Direct Control Bylaw. Furthermore, under section 685(4)(b) of the Municipal

Government Act, neither the Development Authority nor the Board has the authority to

require lesser development standards than those that are stipulated in the Direct Control

Bylaw. He referred to the case of CFPM Management Services Ltd v Edmonton (City),

2020 ABCA 62 at para 10, where the Court of Appeal ruled that appeals concerning Direct

Control Districts are truly limited.

61

Mr. Russill pointed out the timeline of the proposed development; from the

community engagement that took place between 2017 – 2019, to the land use

amendment that was approved by the Council in 2019, the reviews done by Calgary

Planning Commission and subsequent approval of the Development Permit application.

62

He stated that the sight lines of the proposed development indicate an active

frontage and lighting to enhance safety. The building and public spaces are oriented to

the street and pedestrian networks.

63

He stated that the acoustic barrier was made of perforated metal with fibre

insulation attached to a wood fence and will be located at the pickup window facing

Glenmount Drive as shown on page 605 of the Board Report.

64

He noted that the proposed development increased density while being respectful

of the context of the neighbourhood. He stated that the decision to not have designated

parking for residential units was to ensure the efficiency of parking in the proposed

development between the commercial and residential units during peak and low times.

65

Mr. Russill stated that residential units for mixed-use are in direct alignment with

the utilization of the transit-oriented location. High-quality landscaping and amenity space

has been provided for both commercial and residential units. The proposed development

reflects and compliments the street and high traffic arterial of 17^thAvenue SW.

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66

APPEAL NO. SDAB2022-0012a&b

He pointed out the community plaza located in the proposed development

adjacent to 17^thAvenue SW allows public access to patrons whether they patronize the

commercial units or visit the tenants in the residential units. There is pedestrian access

and there is no fence or gate to stop the public from using the space.

67

Mr. Uppal referred to the report on the impact of the proposed Drive Through on

the traffic (Bunt Report) on page 296 of the Board Report and stated that the subject site

is zoned as a Direct Control district which allows for vehicle access to be provided from

the street. It also identifies that a driveway aisle can be provided immediately adjacent to

the lane.

68

He explained that the Bunt Report was finalized in November 2021, but the data

relied upon was from June 2019, pre-COVID when there were high volumes of traffic.

The data shows that the existing traffic on Glenmount Drive is 550 vehicles per day, with

the proposed drive-through there will be an increase to 1,120 vehicles per day. This

number is below the City’s guidelines of 2,000 vehicles per day.

69

The Bunt Report also shows that the existing signal warrant score at the

intersection of Glenmount Drive and 17^thAvenue SW is 8 out of 100; with the proposed

drive-through it increased to 20 out of 100. This is below the threshold at which a traffic

signal is warranted.

70

Mr. Uppal noted that the proposed Drive Through can accommodate 11 vehicles

within the Drive Through itself and an additional 4 vehicles along the drive aisle. The

Bylaw requires a 5-vehicle drive through stack. He noted that the proposed Drive Through

meets this requirement.

71

He noted that there are 13 parking stalls to be shared with the commercial units.

The shared parking was deemed to be efficient because the commercial users have

different peak times. There is no designated residential parking. The Bylaw requires 3

vehicle stalls for the 6 residential units, however, the zero parking for the residents was

supported because it is in line with Calgary Parking Policies; the units are located on 17^th

Avenue SW and within 300 metres of an LRT station, there is restricted on-street parking,

extra bike stalls were provided, and there is on-site parking for visitors. He noted that

there was no public parking lot within 300 metres of the proposed development.

72

Mr. Stevenson noted that the Bunt Report followed standard industry practice for

a traffic study. It referenced data from numerous locations and was able to find the

maximum length queue. He stated that the 15-vehicle stack for the proposed drive-

through was adequate for the units and would not impact traffic on 17^thAvenue SW.

73

Mr. Faszer stated that the Bylaw required that the proposed drive-through with

outdoor speakers must not be located within 23 metres of a property line with a residential

land use district or must be separated from a residential district by a building. He noted

that the fence will provide a noise reduction of 35 dBA and it is equal to an equivalent

distance of a 63-metre setback.

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74 In addition, an 8-foot fence is equal to 89 metres setback and would provide a

noise reduction of 47 dBA. He submitted that a 6-foot or 8-foot fence provided a greater

noise reduction than the Bylaw requirement. He noted out the proposed acoustic fence

is designed to absorb noise and not bounce it around.

75

Mr. Faszer explained that the specification of the proposed drive-through speaker

will produce a maximum level of 90 dBA at 1 foot away, the proposed noise barrier will

reduce it to 40 dBA which is less than the Bylaw noise limit for residential areas of 50

dBA per hour during evening hours. He noted that the speakers have automatic volume

control tied to the surrounding ambient level.

76

He explained further, that for the residents behind the acoustic wall when there is

traffic during the daytime, the noise level will be about 40 dBA because it will mask the

noise coming from the traffic, and at night when the traffic is less, the noise level will be

at 30 dBA. In his opinion, the residents will not hear the sound from the speakers in their

residence.

77

He noted that the Bylaw does not make mention of a public gathering space as a

use. In his opinion, it is a space that the public would have access to. The plans indicate

that the public will have access to the community space in the proposed development.

78

He stated that the issues presented by the appellants are subjective with no

evidence. He submitted that it was not enough to raise an issue without providing

evidence to support the issues raised.

79

Mr. Grol referred to the revised plans which eliminated four Prior-to-Release

Conditions that would have required a Bylaw relaxation. The proposed development

required eight (8) relaxations. He stated that the test for Bylaw relaxation is set out in

section 36 of the Bylaw and section 687(3)(d) of the Municipal Government Act. He

pointed out that the size, percentage, or magnitude of the relaxation is irrelevant and is

not determinative. It is the context of the proposed development and whether the test is

met. In the case of White v Okotoks (Subdivision and Development Appeal Board), 2018

ABCA 86, at para 21, the Court of Appeal held that the relaxation power of the

Development Authority and the Board is unlimited. The Court noted that the relevant

inquiry is whether the variance does not unduly affect the amenities, use or enjoyment of

the site of neighbouring properties.

80

Also, in Newcastle Centre GP Ltd v Edmonton (City), 2014 ABCA 295 (Can

LII), the Court of Appeal directed that the factors contained in section 617 of the Municipal

Government Act are not relevant and should not be considered when applying the test in

section 687(3)(d). He submitted that the Bylaw relaxations do not impact the appellants’

properties or the amenities of the neighbourhood.

81

Mr. Grol noted that the applicants were willing to accept restrictions to closing the

Drive Through at 10:00 pm; increasing the height of the fence to 8 or 10 feet and

designating three vehicle parking stalls for the residential units.

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82 He concluded that the Development Authority followed the directions of Council

under the Direct Control Bylaw. The proposed development is consistent with the

Municipal Development Plan, it is compatible with the adjacent developments, and is

appropriate for the site.

Rebuttal

The Development Authority

83

Mr. Pomreinke noted that City Council determined that a drive through was an

acceptable use in the location. He noted that on-site parking is sufficient to prevent traffic

spillover. The Development Authority is open to a higher fence, however for safety

reasons regarding the power lines, Enmax would need to approve the height increase.

The Appellants

84

Ms. Pirnie noted that the traffic volume analysis was done in November 2021 and

does not have the current data to account for the increase of vehicle traffic post-COVID,

thus should not be relied upon.

85

She noted that the drive-through is a discretionary use and allowing it in the

proposed location would set a negative precedent around a transit-oriented location.

86

Ms. Borkowska reiterated that the proposed sound barrier will be ineffective for

her building because of its elevation and the way sound travels.

In favour of the appeal

87

Ms. Capes stated that the opening hour of 5am was too early and should be

restricted.

88

Ms. Shannon noted that the proposed development will cut off access to the

community and the residents will be forced to find alternative routes.

The applicant’s team

89

Mr. Uppal noted that the traffic analysis study was done in June 2019 – pre-COVID

and the report was signed off in November 2021.

90

Mr. Russill noted that an 8- or 10-foot fence will be consistent with the setback

along the front of the proposed development facing 17^thAvenue SW.

Reasons:

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91

The Board reviewed all evidence and arguments, written and oral, submitted by

the parties and will focus on key evidence and arguments in outlining its reasons.

92

In determining this appeal, the Board considered the relevant provincial

legislation and land use policies, applicable statutory plans, the Municipal Development

Plan (MDP), the Bylaw, the Direct Control (DC) Bylaw, the Transit Oriented

Development Policy Guidelines (TOD), the West LRT land use study and considered all

the relevant planning evidence presented in writing and at the hearing, the arguments

made and the circumstances and merits of the application.

93

The Board has regard to this Direct Control Bylaw 231D2019 (DC Bylaw) and

finds that it is intended to accommodate a mix of residential and commercial uses with

established maximum floor area ratios, building heights, minimum setbacks and to allow

for a public gathering space and Drive Through. Unless otherwise specified, the rules

and provision of Parts 1, 2, 3 and 4 of the Bylaw apply as noted in Section 2 of the DC

Bylaw. Further, the Board notes that a reference to a section of the Bylaw is deemed to

be a reference to the section as amended from time to time. A publicly accessible

private open space is defined and the permitted uses of the Mixed Use-General (MU-1)

District of the Bylaw are the permitted uses in the Direct Control District and the

discretionary uses of the Mixed Use-General (MU-1) District of the Bylaw are the

discretionary uses with the additional discretionary use of a Drive Through as noted in

Section 6(a) of the DC Bylaw.

94

The DC Bylaw provides additional requirements including; Section 8 maximum

floor area; Section 9 building height; Section 10 setback areas and depth; Section 11

rules for facades facing the street; Section 12, vehicle access; Section 13 Drive

Through rules; Section 14 provides that the Development Authority may relax the rules

contained in Sections 9, 10 and 11, in accordance with sections 31 and 36 of the Bylaw.

95

The Board has regard to section 685(4) of the Municipal Government Act when

considering a DC Bylaw which provides:

(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.

96

The Board finds that the land use re-designation application for this DC bylaw was

previously recommended for refusal by city administration to Calgary Planning

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Commission (CPC) based on its non-compliance with the MDP and TOD policies,

including the inclusion of a Drive Through. That recommendation was however defeated

by CPC and the land use re-designation was later approved by Council, on December

16, 2019 allowing a mixed use of commercial and residential uses including a Drive

Through and a public gathering space. Council also directed that future development on

this site be reviewed by CPC to ensure appropriate measures were taken to limit the

impacts of the Drive Through and the development on the adjacent residences and

community.

97

In terms of the jurisdiction of the Board respecting section 685(4)(b) of the

MGA, the Board considers the express wording of the DC Bylaw and the Bylaw itself.

Where the Bylaw has given discretion to the Development Authority, the Board, upon

appeal, re-exercises the same discretion.

98

The Board, upon appeal, must exercise its discretion, in accordance with the

directions of Council. The Board does not have a wider discretionary role to play than

that afforded by the DC Bylaw to the Development Authority. Each DC Bylaw must be

read on its own to determine the directions of Council.

99

Pursuant to section 35 of the Bylaw, when making a decision on a development

permit application for a discretionary use; the Development Authority must take into

account the things listed in subsections (a) through (j). Subsection (a) of this section lists

the plans and policies affecting the parcel. Therefore, the MDP, TOD guidelines and the

West LRT land use study must be taken into account by the Development Authority.

100 In addition, the compatibility and impact of the proposed development with respect

to adjacent development and the neighbourhood as well as the merits of the proposed

development and sound planning principles, among other things, must be taken into

account.

101 The Board finds that the appellants and affected neighbour’s primary concern with

the proposal is the inclusion of the Drive Through. They submitted that Calgary Planning

Commission, in its role as Development Authority in approving the applicant’s

development permit application, failed to follow the directions of Council as stipulated in

the DC Bylaw. The Development Authority failed to apply section 35 of the Bylaw

appropriately in the exercise of its discretion in numerous matters, including, but not

limited to, matters related to the approval of a Drive Through which is a discretionary use.

The approval also conflicts with TOD guidelines and requires numerous Bylaw

relaxations, including the location of outdoor speakers. The overall negative impact a

Drive Through will create on adjacent properties including noise, traffic, pollution and

overflow parking into the community was not adequately considered. In addition, the

proposal provides no assigned residential parking.

102 The Board acknowledges the appellants’ concerns regarding the location of the

Drive Through and the potential impacts on the abutting residents. Specifically, those

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residents abutting the lane had legitimate concerns regarding the impacts of the Drive

Through, including the noise impact of the outdoor speakers.

103 The Board notes that the proposal also abuts 17^thAvenue SW and the abutting

residents are located near to a major roadway that, as is, would create the associated

expected traffic noise in this location.

104 The Board finds that during the development permit review process, 44 letters of

objection were received and one letter of support. The Community Association noted that

the proposal meets the requirements of the purpose statement of the DC district.

105 The Board finds that the purpose of the DC Bylaw specifically allows for the

discretionary use of a Drive Through. While Mr. Roberts felt that CPC reviewed the Drive

Through as a permitted use, the Board does not agree. Specific direction was given by

Council to ensure the proposal was reviewed by CPC recognizing that the drive through

is listed in the Bylaw as a discretionary use. On this basis the Board finds the application

was properly reviewed and assessed, and the Drive Through use was not considered as

a permitted use.

106 The Board acknowledges that the site is limited in its area and abuts a lane and

residential dwellings. A drive through on the site requires careful review as directed by

Council to ensure its sensitively designed and respectful of its context being adjacent to

residential dwellings.

107 The Board finds that the MDP is a broad ranging statutory plan that includes this

parcel in an area that encourages a wide range of housing choices near the existing LRT

infrastructure, with a mix of land uses. The proposal includes 6 dwelling units combined

with the commercial uses and provides a mixed-use development that is in the Board’s

view, consistent with the MDP that encourages modest redevelopment, appropriate

densities and a mix of land uses and housing choices.

108 The Board finds that the TOD guidelines is a non-statutory policy that supports

increased transit use and encourages increasing density around transit stations as well

as a hub of mixed-use activity. In the Board’s view, the development is achieving these

directives with a combination of professional, commercial and residential uses, including

a community hub and public gathering space. The Board acknowledges that the

guidelines state that Drive Throughs are a non-transit supportive use however, the DC

district for the parcel as directed by Council, specifically allows a drive through as a

discretionary use that should be carefully reviewed and scrutinized.

109 The Board finds that the West LRT Land Use Study Summary Report is a non-

statutory document who’s guiding principles encourage the sensitive increase of

residential densities and the accommodation of mixed-use development around LRT

stations which, in the Board’s view, the proposal achieves with 6 residential dwelling units

and retail services provided within close proximity of an LRT station.

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110 The Boards finds that there is no local area plan for this area and any reference

made to the Westbrook Communities Local Area Planning Project which is under review

is not relevant or for consideration by the Board.

111 The Board finds that there are 8 Bylaw relaxations required, some of which are

related and will note and address them accordingly as outlined in the paragraphs below.

112 Section 185 of the Bylaw requires outdoor speakers to be located 23 metres from

the property line of any parcel designated as a residential district. 10.45 metres is

provided (12.55 metres deficient). This creates an additional relaxation from Section 281

of the Bylaw for the Drive Through window openings since any restaurant licensed should

not have window openings abutting a lane from a parcel designated as a residential land

use.

113 The Board notes that both appellants and neighbours Ms. Capes, Ms. Armstrong

and Mr. Moorehead expressed strong opposition to the inclusion of the Drive Through

and its negative impacts on the adjacent residences. In addition, Ms. Capes argued that

the wood fence was not an adequate sound barrier and the noise will not be properly

contained. The change in elevation from the lane was not considered when assessing

the noise impacts and the hours of operation of the Drive Through, especially the 5am

opening time that will be a further inconvenience to the residences. In addition, the Drive

Through will also cause overflow noise and exhaust pollution that will encroach onto

residential properties and encourage vehicles to short cut from the Drive Through into

the community.

114 The Board accepts evidence from FFA consultants in acoustics that by providing

an acoustic wall of 6 feet along the south property line of the parcel made of perforated

metal with fiber installation attached to the wood fence that the decibel levels coming

from the drive through speakers will be significantly less than levels occurring at the

Bylaw minimum setback of 23 metres. In the Board’s view, the acoustic fence will

significantly reduce the speaker noise impact on the abutting residents and better screen

the Drive Through vehicles, openings and reduce vehicle head light and exhaust fume

exposure.

115 The Board further heard evidence that by increasing the acoustic fence height to

8 feet, noise levels will be further reduced. To address the concerns of the appellants

and neighbours, the Board is requiring the applicant, as a Prior-to-Release (PTR)

Condition, to provide a 2.44-metre high acoustic screen fence along the entire length of

the south property line to help screen the Drive Through, reduce speaker noise, exhaust

fumes, lighting associated with drive through vehicles, and the visibility of any openings

facing the lane. The Board notes that the applicant was supportive of this consideration.

116 On the basis of this PTR requirement, the Board is satisfied that the 2.44-metre

high acoustic screen fence provided along the south property line will sufficiently reduce

the noise from the outdoor speakers and the related impacts associated with the Drive

Through feature noted by the appellants and adjacent residences.

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117 In the Board’s view, the increase in fence height will further limit speaker noise

onto the abutting residences properties and on this basis, the Board feels that the existing

approved 5am to 11pm hours of operation for the Drive Through noted as Permanent

Condition 28 do not require any reduction. The PTR also requires clearance from Enmax

to ensure the increased fence height does not create any conflicts, and the fence height

will be required in the PTR to ensure any portion of it near the Drive Through exit area

does not conflict with any visibility issues when exiting the site.

118 The Board acknowledges that this will increase the fence height relaxation already

required from Section 1362 of the Bylaw as noted above but, in doing so, will further

reduce noise and vehicle exposure to the abutting residents. On this basis, the relaxation

is supported by the Board.

119 The Board heard evidence from the Development Authority that in their view the

acoustic fence met the definition of a building and therefore since a building was

separating the residential land use district from the speakers that this relaxation was not

required. The Board does not agree and acknowledges that the term “fence” is defined

in part from Division 2 (60) of the Bylaw as a structure used to prevent passage, provide

visual screening, sound attenuation or to mark a boundary. In the Board’s view, the Bylaw

definition of fence applies and is most appropriate in this context. The Board does not

consider this to be a building. On this basis, the relaxation required from Section 185 of

the Bylaw still applies.

120 Section 1342 of the Bylaw requires the façade of a building facing the street to

provide 65 percent unobstructed glass whereas 10.92m2 is provided (15.95 metres

relaxation).

121 The Board recognizes the significant relaxation required regarding the window

openings and the intent of the Bylaw to enhance the transparency and visibility of

commercial uses on the main floor. The Board however acknowledges the close proximity

from the site of single detached dwellings and reducing the window area will have less of

an impact on the adjacent residential setting and is also in keeping with the overall village

design theme of the proposal which is less commercial in appearance. On this basis,

Board finds that the relaxation is reasonable.

122 Section 1373 of the Bylaw requires the maximum length of a building façade facing

a street is 15 metres whereas 25.87 metres is proposed (10.87m relaxation)

123 The Board finds that the requirement of an outdoor amenity area of a minimum of

100 SM that is proposed between buildings offsets the long mass associated with the

building length and creates visual interest to pedestrians on the street. This promotes the

proposal’s village-like pedestrian feel and is consistent and compatible with the design

flow of the development. On this basis the relaxation is supported.

124 Section 1349 of the Bylaw requires a residential amenity space with no dimension

less than 6 metres, while only 5.47 metres was provided.

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125 The Board finds that this relaxation is minor and, due to the limited site area, there

are challenges on the parcel to adequately provide fully functional amenity space for the

residential units. The Board however feels that the outdoor amenity space is sufficient

and not compromised with the required relaxation. On this basis, the relaxation is

supported by the Board.

126 The Bylaw requires four residential parking stalls and one visitor stall and provides

none.

127 The Board finds that concerns regarding the parking relaxation for the 6 residential

dwelling units were expressed by appellants and neighbours, siting concerns in part over

overflow parking onto the adjacent residential streets. The Board notes that the Bylaw

requires four stalls for the dwellings and one visitor stall. No onsite parking for residential

users has been assigned.

128 The appellant, Ms. Pirnie, argued that the traffic and Drive Through analysis was

done in November of 2021 during a nonpeak and COVID-active period and the findings

were therefore not accurate or indicative of what the actual traffic and Drive Through

demands would typically be. Mr. Uppal who is a professional engineer representing Bunt

and Associates, stated that the traffic analysis was done in July 2019 before the impact

of COVID. Comparative Drive Through queue count analysis was done in Calgary from

January 2020.

129 The site is located within 300 metres of an LRT station and primary bus service,

which encourages transit use and decreases the demand for residential parking.

Assigning stalls specifically for residential use only may help alleviate this concern

however in doing so, stalls maybe left vacant, specifically during peak activity periods

which would not, in the Board’s view, be an efficient use of on-site parking which as

proposed is used by both commercial and residential users.

130 The Board finds that the proposed Drive Through can accommodate 11 vehicles

within the drive through and an additional 4 vehicles at the drive aisle. The anticipated

worst-case demand provided by the Bunt and Associates study is between 12-15 vehicles

for a minimum peak time period and with up to 15 stalls available, this peak scenario

demand has been met.

131 The Board finds that no on-street parking is available on 17^thAvenue SW and

there is a very limited amount of on-street parking available on Glenmount Drive SW.

Residential units included in the development are not eligible for on street parking permits

which restricts and limits opportunities for any overflow parking into the community.

132 The Board determined that a parking relaxation is reasonable, given that the

parking study provided by Bunt and Associates and proximity of the site to the nearby

LRT station indicates that the required relaxation will not create parking issues on the site

or overspill and stacking of vehicles onto 17^thAvenue SW. In addition, by not assigning

parking stalls specifically for residential use, the stalls on the site are shared and remain

accessible to all users both commercial and residential during peak business hours. This

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ensures all parking stalls on the site are available which reduces parking demands on

the street which has very limited parking available adjacent to the site.

133 The Board is satisfied that based on the transportation study provided by Bunt and

Associates that overspill of vehicle parking will not occur onto 17^thAvenue SW and the

traffic and parking demands for commercial and residential uses on the site have been

satisfactorily met. On this basis, the parking relaxation is supported by the Board.

134 The Board finds that there are measures in place on the site that encourage drive

through customers to turn left when exiting the Drive Through onto the street and towards

17^thAvenue SW and not turn right and exit into the community. Painted directional arrows

on the drive through access road direct vehicles to turn left may not always be visible or

effective as above-grade placed signage.

135 To alleviate the concerns of the appellants and neighbours regarding short cutting

through the community from the drive through exit, the Board has added a PTR Condition

that requires installation of signage on the parcel visible to patrons exiting the Drive

Through to the satisfaction of the Development Authority be provided approximately 1.8

metres above grade clearly indicating no right turn into the community onto Glenmount

Drive SW is allowed when exiting the Drive Through.

136 Concerns were expressed by the Board that access to the private open space was

cumbersome, and portions of the area were elevated and gave an uninviting appearance

to pedestrians. The public space area is defined in the DC Bylaw, and the Board notes

that the space is not intended to be a public area associated with a specific use and is

intended for use by the general public. There are no fences or gates to prevent the public

from using the space and it is incumbent upon the property owner to ensure the publicly

accessible private open space is made available, meets the minimum area requirements

of the DC Bylaw and is not part of a public area associated with a use.

137 The Board finds that from a planning perspective the proposed development

meets the criteria of section 35 of the Bylaw for approval of a discretionary use. The intent

of the MDP, TOD and the West LRT Land Use Study Summary Report is being met and

the required relaxations for the reasons stated above are appropriate in this Direct Control

district. The test for relaxation set forth in section 687(3)(d) of the Municipal Government

Act has been satisfied.

138 The Board finds that the development, from a planning perspective, is based on

sound planning principles and is appropriate for the parcel. Therefore, the application

warrants approval.

139

Having regard to Council’s direction as set forth in the DC Bylaw and based on

all the evidence, the Board, in accordance with section 685 of the Municipal Government

Act, finds that in approving the subject application, the Development Authority followed

the directions of Council and did exercise its discretion appropriately and in accordance

with sound planning principles, thereby following the direction of Council. Accordingly,

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the Board allows the appeal in part and a development permit will be issued with the

additional PTR conditions required and noted above.

Conclusion:

140 For the reasons set out above, the appeal is allowed in part and the decision of

the Calgary Planning Commission is varied. A development permit shall be issued with

the Conditions provided by Calgary Planning Commission, and the additional Prior-to-

Release Conditions noted in paragraph 4 above.

___________________________________

Andrew Orr, Board Member and Decision Writer

Calgary Subdivision and Development Appeal Board

___________________________________

Bill Chomik, Presiding Officer

Calgary Subdivision and Development Appeal Board

Issued on this 15th day of June 2022

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