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 10  
Case Name: SDAB2022-0010(Re)  
File No: DP2021-7313  
Appeal by:  
Brian Bass, David Brindle, and Paul Galachiuk  
Development Authority of The City of Calgary  
Appeal against:  
Hearing dates:  
March 31, 2022  
May 12, 2022  
June 14, 2022  
Decision date:  
June 22, 2022  
Board members:  
Katherine Camarta, Second Vice Chair  
Court Ellingson  
Carol Hampton  
Jim Palmer, First Vice Chair  
Tanisha Singh  
DECISION  
FILE NO. DP2021-7313  
APPEAL NO. SDAB2022-0010  
Description of Application:  
1
The appeal before the Subdivision and Development Appeal Board was brought  
by Brian Bass, David Brindle, and Paul Galachiuk.  
2
On February 14, 2022, the Development Authority approved the application of  
Dobbin Consulting for a New: Multi-Residential Development (1 building) at 615- 2  
Avenue NW in the community of Sunnyside. The property is owned by Bamburgh Place  
Ltd. and has a land use designation of Multi Residential-Contextual Ground Oriented M-  
CGd72. The proposed development is a discretionary use within the district.  
Procedural History:  
3
The hearing commenced on March 31, 2021, with consideration of procedural  
issues. The Board adjourned the hearing to May 12, 2022. The hearing was held by video  
conference and concluded after a second day of the hearing held on June 14, 2022.  
Decision:  
4
The appeal is allowed in part and the decision of the Development Authority is  
varied. A development permit shall be issued with varied conditions to require compliance  
with section 550 of the LUB and to require that the intrusive front decks should be  
removed. Each shall be replaced with a landing and patio with landscaping of at least 36  
inches in height, providing for a contiguous border and separation from the public  
sidewalk therefore enhancing the privacy of these amenity spaces within the confines of  
the required setback areas, all to the satisfaction of the Development Authority.  
Submissions:  
5
The Board received oral and/or written submissions from:  
a)  
b)  
c)  
d)  
e)  
f)  
Ms. Lindsey Ganczar, Development Authority;  
Ms. Colleen Auld, file manager of Development Authority;  
Mr. Paul Galachiuk; appellant;  
Mr. David Brindle, appellant;  
Mr. Brian Bass, appellant;  
Mr. Wayne Morris, a neighbour, in support of the appeal and also  
representing Mr. Phil Atkinson;  
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Mr. Michael Bradfield, a neighbour, in support of the appeal;  
Mr. David van der Torre, a neighbour, in support of the appeal;  
g)  
h)  
i)  
Ms. Bonnie Anderson, Dentons, legal counsel for the applicant/owner; and  
Ms. Jennifer Dobbin, applicant.  
j)  
6
The Board also received written submissions from Sean and Lori Korney, against  
the appeal. These letters are contained in the Board Report.  
Background and Summary of Evidence:  
Submissions of the Development Authority  
7
Ms. Ganczar stated that the appeal is against the approval by the Development  
Authority for a 5-unit multi-residential building at 615 -2 Avenue NW in the community of  
Sunnyside. The subject parcel is designated Multi-Residential Contextual Grade-  
Oriented under the Land Use Bylaw (LUB or Bylaw). The proposed development is a  
discretionary use within the district.  
8
The parcel is located on the southeast of 2 Avenue, approximately 2 blocks north  
of Memorial Drive and 4 blocks east of Sunnyside LRT station. The site is approximately  
19 metres wide by 36 metres deep with an area of approximately 0.07 hectares.  
9
The surrounding land uses consist of a mix of residential uses-single and semi-  
detached homes and multi-residential buildings. The site is currently vacant.  
10  
In reviewing the application, the Development Authority considered the rules and  
policies of the Municipal Development Plan (MDP), Hillhurst/Sunnyside Area  
Development Plan (ARP), and the Bylaw.  
11  
The MDP Map 1 identifies the proposed development as being within the  
Residential-Developed Inner City Area. The MDP policies encourage growth and change  
in low-density neighbourhoods, with redevelopment that provides a wider range of  
housing options and higher residential densities in areas of the community that are more  
extensively served by existing infrastructure, public facilities, and transit. The MDP  
supports development and redevelopment that provides a broader range of housing  
choices in local communities to help stabilize population declines and support the  
demographic needs of communities. Ms. Ganczar submitted that the proposed  
development complies with the MDP policies.  
12  
The proposed development is within the Residential Character Area 2 of the ARP,  
which allows for individual lot redevelopment and provides guidance for contextually  
sensitive redevelopment, including, but not limited to, building height, privacy, roof form  
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APPEAL NO. SDAB2022-0010  
and sighting. In the opinion of the Development Authority, the proposed development  
meets the intent of these rules.  
13  
Under the Bylaw, the subject parcel is designated as a Multi-Residential-  
Contextual Grade-Oriented district and is intended to accommodate multi-residential  
developments that have higher numbers of dwelling units and traffic generation than low-  
density residential areas, has a variety of forms – low height and density, and is in  
proximity or adjacent to low-density residential areas.  
14  
The maximum density for the district is 72 units per hectare and a maximum  
building height of 12 metres. Ms. Ganczar stated that the proposed development  
complies with the maximum density and building height for the district.  
15  
The approved site plan is on page 499 of the Board Report. it shows the 5 units of  
the proposed development with at-grade access from the exterior with direct paved  
connections to the sidewalk along 2nd Avenue. The private amenity space is provided in  
the form of at-grade patios for Units 1 and 2. There is a main floor deck for Units 3 and 4  
and a second-story balcony for Unit 5. All units have a large third-floor balcony.  
16  
The site plan indicates 6 parking stalls for the proposed development. Each unit  
has a parking stall located in the attached garage which is accessed from the rear lane.  
One visitor parking stall is also provided and accessed from the rear lane. Ms. Ganczar  
submitted that the parking provided meets the requirements of the Bylaw with no  
relaxation needed.  
17  
She pointed out that the proposed development required five relaxations. The first  
two relaxations are in respect of the building setback. Section 583 of the Bylaw requires  
the minimum front building setback to be 3 metres. The site plans indicate that the front  
deck sits at 2.4 metres into the minimum setback area. Section 549 of the Bylaw provides  
that no part of the building must be in any setback area. The site plans indicate the front  
decks attached to Units 1 and 2 are in the setback area. Ms. Ganczar explained that  
decks are counted towards the amenity space and considered part of the building.  
However, because it was not the actual residential building that was in the setback area,  
but an outdoor portion with an uncovered deck, surrounded by landscaping, the  
Development Authority considered it to be an appropriate use of the amenity space.  
18  
The third relaxation is regarding Section 550 of the Bylaw which requires all soft  
landscaping to be irrigated by an underground irrigation system. The site plans indicate  
that the landscaping will be manually irrigated. Ms. Ganczar stated that this relaxation  
was granted because it was deemed reasonable in the opinion of the Development  
Authority. The landscaping that will be provided will be in an immature state and manual  
irrigation allows for more control over the amount of water that the landscaping will require  
in that state. She noted that the requirement for underground irrigation is common in  
commercial or industrial applications where the number of users on-site is limited as  
opposed to residential applications where there are more people on the ground to monitor  
the landscaping.  
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19  
Ms. Auld noted that the applicants are required to water the landscaping until it is  
established.  
20  
The fourth relaxation is regarding Section 551 of the Bylaw which provides that a  
maximum of 40% of the landscaping area must be hard landscaping. The site plan  
indicates that 46.2% of the required landscaping is hard surfaced.  
21  
The fifth relaxation is regarding Section 60 of the Bylaw that required the first floor  
of all buildings to be constructed at or above the designated flood level. The site plans  
indicate that the first-floor garage and storage are not above the designated flood level.  
Ms. Ganczar stated that the garage was designed to match the elevation of the rear lane  
for safe vehicular access, hence the relaxation was granted. All electrical components  
are also raised.  
22  
She stated that the Development Authority considered that the plants in the side  
setback, upon maturity, will provide screenings to the balconies on the third floor. She  
pointed out that the balconies were tucked into the buildings to reduce overlooking issues.  
23  
Ms. Ganczar noted that under the Bylaw, Multi-residential Development Minor is  
a permitted use, does not allow for any relaxations, and is usually on a smaller parcel.  
The proposed development was reviewed as a Multi-Residential Development.  
24  
Ms. Auld explained that the proposed development meets the definition of a Multi-  
Residential Development since it consists of one or more buildings, each containing one  
or more units and has a minimum of three units. It meets the rules and definition of a  
Multi-Residential Development, hence it was approved as such.  
25  
Ms. Ganczar submitted that, in the opinion of the Development Authority, the  
proposed development is in line with the direction of the Council as provided in the Bylaw,  
ARP and MDP. The relaxations meet the test of Section 36 of the Bylaw and do not  
unduly interfere with the amenities of the neighbourhood, or materially interfere with or  
affect the use, enjoyment, or value of the neighbouring parcels of land.  
Submissions of the appellants  
26  
Mr. Paul Galachiuk’s residence is located west of the proposed development. He  
noted that the proposed development materially interferes with the use and enjoyment of  
his property and if allowed, it would set a precedent for similar structures on both sides  
of the street that would lead to further loss of the enjoyment and value of his property. He  
estimated the loss of value at 15 per cent.  
27  
He referred to his written submission in the Board Report and stated that the  
community is a village in an inner-city setting characterized by diverse demographics but  
is being transformed into an inner-city block of massive buildings with more pavement  
and less grass and fewer trees. He referred to the streetscape showing boulevards and  
front yards with trees and grass which would be replaced by massive block buildings if  
the proposed development is allowed.  
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28 He pointed out the lack of open community engagement by the applicant during  
the review process and noted that under the previous designation of the parcel, the  
proposed development would not have been allowed. The new designation of the subject  
parcel to M-CGDd72 is, in his opinion, the root cause of the issues with the proposed  
development and something Council may not have intended.  
29  
He submitted that all the relaxations granted to the proposed development by the  
Development Authority ought not to have been granted. The relaxation allowing front  
decks in the front yard is contrary to the provisions of the Bylaw. There is no reasonable  
justification for this relaxation.  
30  
Also, the Bylaw required an irrigation system to ensure that the landscape area of  
the proposed development is watered adequately. The relaxation of the irrigation system  
will lead to dead space on the proposed development.  
31  
Mr. Galachiuk noted that the relaxation on landscaping is because the applicant  
attempted to build a development bigger than the lot can reasonably support. He stated  
that under the Bylaw, a maximum of 40% hard surface landscaping is allowed. The  
proposed development indicated 46.42% of the hard landscape. He argued that the area  
under the deck was counted as soft landscaping when in his opinion, it should not have  
been added, because it is unusable and inaccessible. He submitted that the actual  
calculation of the hard landscape area of the proposed development is closer to 65 per  
cent.  
32  
Furthermore, he stated that the proposed development indicates that a Molok  
system for recycling will be placed in the setback area. He argued that the Molok is a  
permanent structure that will be placed in the setback which is contrary to the provisions  
of the Bylaw.  
33  
In addition, the visitor’s parking lot is in the setback area, where the Molok systems  
will be located. He noted that both cannot be in the same area as there is insufficient  
space.  
34  
Mr. Brindle stated that he lives in the same block and side of the street as the  
proposed development. He referred to his written submission in the Board Report and  
stated that Section 581 (2) of the Bylaw provides that all units must have doors that face  
the street and are visible. Units 3 and 4 of the proposed development are not visible from  
6 Street Northwest. No relaxation has been granted by the Development Authority for this  
Bylaw requirement.  
35  
He noted that the proposed development viewed from 2 Avenue NW shows a front  
facade which looks like the front of a pair of attached houses with a huge, attached  
building, containing three suites, in the backyard. He argued that these backyard units  
violate the requirements of the Bylaw relating to suites and should not be allowed.  
36  
Mr. Brindle noted that the Bylaw requires all landscaped areas, other than private  
amenity space, to be accessible to all residents of the proposed development. The site  
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plans indicate that residents in units 3 and 4 would have the lion’s share of the  
accessibility, with the ability to step out of their units into both landscaped areas at the  
sides of the building. Units 1 and 2 residents would have to step onto the street to be able  
to get into the landscaped areas. Unit 5 residents would have accessibility to the area on  
the east side but would be remotely positioned from it.  
37  
Furthermore, the proposed development creates problems with on-street parking  
in the area. At two or more private vehicles per unit, the proposed development could  
bring ten or more private vehicles to the block with parking provided for only five. If the  
potential of 10 new resident parking permits and 10 new visitor permits were realized,  
there would be an unreasonable overload on the on-street parking and unreasonable  
inconvenience caused to existing residents.  
38  
The proposed development area is identified as an Inner-City Area in Section 3.5.2  
of the MDP. Sections 2.2.1 and 2.2.2 of the MDP govern population density. The key  
factor to determine the required density is the walking distance from a station or stop on  
the Primary Transit Network and higher density development should be focused within a  
400-metre distance from a transit station or stop. He stated that it can be reasonably  
assumed that there would be an average of four people living in each unit of the proposed  
development. With 20 people on a parcel of about 0.0695 hectares, the population  
density for the development would be 288 people per hectare. This is more than the  
minimum targets set out in the MDP guidelines and ought not to be allowed.  
39  
Mr. Bass pointed out that the previous development on the subject parcel was a  
single-family dwelling that fits into the character of the street and the land use designation  
of R-2 districts.  
40  
He explained that the objective of the ARP was to preserve and enhance the  
established low-density residential character and family orientation of the community. He  
noted that appropriate development for the parcel will consist of single- or two-family  
developments. The proposed development does not conform with the low-density profile  
of R-2 districts.  
41  
He stated that the ARP requires new developments to minimize window openings  
on side walls to respect the location of the windows and outdoor amenity spaces of  
adjacent properties. Windows from units 3, 4, and 5 overlook adjacent properties to the  
west. He submitted that it does not respect the privacy of adjacent low-profile single-  
family dwellings.  
42  
Furthermore, the ARP provides that the height of any deck extending past the rear  
of a neighbouring structure should not exceed 3 feet above grade, to prevent overlooking  
and overshadowing of adjacent yards. Units 3, 4 and 5 of the proposed development  
have decks and third-floor balconies that face west and do not respect the privacy of  
adjacent low-profile single-family dwellings. He suggested that the side windows and  
third-floor balconies be eliminated from the proposed development.  
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APPEAL NO. SDAB2022-0010  
43  
Mr. Bass pointed out that the proposed development will cast a considerable  
shadow on adjacent buildings to the west of the proposed development.  
44  
He noted that the front yard of units 1 and 2 of the proposed development extend  
beyond the front portion of adjacent dwellings, contrary to the provisions of the ARP. He  
suggested that the length of the front yard be reduced to ensure an average to adjacent  
front yards. Furthermore, the ARP requires private outdoor areas to be in the rear yard  
and spaces should be screened from public view by a hedge or a fence. The private  
outdoor area of the proposed development is located on the side of the proposed building  
and the decks allow for a direct view into the adjacent yard to the sent. He suggested that  
the private decks should be eliminated and replaced with soft landscaping to maintain  
privacy between the adjacent properties. He urged the Board to allow the appeal for non-  
conformity with the ARP.  
Other submissions in favour of the appeal  
45  
Mr. Morris, representing himself and Mr. Phil Atkinson, noted that his view from  
his frontage looking west will be impacted by the full width of the rear of the proposed  
development. He noted that the views of the skyline were part of the reason he purchased  
his building.  
46  
He noted that the lack of adequate parking for the residents and visitors will add  
pressure to the existing inadequacy of on-street parking.  
47  
Mr. Bradfield aligned with the submissions of the appellants and referred to his  
submissions on pages 755-757 of the Board Report. He noted that the proposed  
development is an over-development on a lot size that previously had a single building.  
He stated that the proposed development will create a negative precedent if allowed in  
the community.  
48  
He noted that zoning and Bylaw regulations are intended to avoid all the concerns  
raised with the proposed development. He pointed out that the proposed development  
has several units that have windows and decks that face and overlook directly into the  
adjacent building, essentially invading the privacy of the neighbours. The proposed  
development will also generate noise from the units that will flow into the adjacent  
buildings. Furthermore, he argued that the units of the proposed development will not be  
used as a rental property as proposed by the applicants because the projected cost of  
renting the units is far above the average cost of rental units in the area.  
49  
Mr. Van der Torre lives in the condo right next to the proposed development. He  
noted that the size of the proposed development will eliminate any privacy he enjoys on  
his patio and home and further place his building under a constant shadow. The  
proposed development will also add to the existing pressure of on-street parking in the  
community.  
Submissions of the applicant’s team  
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APPEAL NO. SDAB2022-0010  
50 Ms. Anderson stated that the proposed development consists of one building  
containing five dwelling units, an enclosed area for the five parking stalls, and one visitor  
stall next to the garbage and recycling area at the rear of the property. She described the  
proposed development in the context of the existing development – it is surrounded by  
three-storey multi-residential developments to the immediate east, north and south; and  
a single detached dwelling to the immediate west. Further west on the block are a few  
single detached dwellings, two semi-detached two-storey dwellings and four original  
houses at the opposite end of the block from the subject site. The streetscape is an  
eclectic mix of housing, with increased density toward the east end of the block where  
the development is proposed.  
51  
She noted that the front doors of all the units are visible from the street. Three of  
the units are stepped back from the street. She pointed out that units 1 and 2 facing the  
street do not have back doors. Furthermore, units 3 and 4 and 5 have back doors with  
decks in the backyard. She pointed out that if the design were to change to a semi-  
detached, there will still be two decks in the backyard. The privacy concern for the  
proposed development would be the same if it was a semidetached development.  
52  
She stated that the proposed development is located near the edge of the  
prescriptive 600 metres that is used to define the Transit-Oriented Development (TOD)  
areas. The area is walkable with a 75 walkable score, 74 transit score and 91 bike score.  
It is a direct walk with no impediments and close to the LRT station. Bus 104 operates  
twice an hour, from 6 am till after 11:00 pm on weekdays. There are nine stops along 9  
Avenue and the closest bus stop is a minute away from the proposed development. She  
submitted that the location is appropriate for increased density.  
53  
Ms. Dobbin noted that the applicant had reviewed the previous application and  
SDAB decision on the subject parcel to rule out the primary concerns of the neighbours  
regarding the proposed development. She referred to the community engagement with  
the Hillhurst Sunnyside Community Association Planning Committee and Mr. Brian Bass  
as noted on pages 530 – 533 of the Board Report and stated that all the concerns raised  
including privacy, overlooking, and massing were considered and addressed in the  
design of the proposed development.  
54  
Ms. Anderson stated that the proposed development was within the Inner-City  
area of the MDP which allows for moderate intensification to be in a form that respects  
the scale and character of the neighbourhood. The design of the building is focused on  
residential dwelling units which creates a variety of housing options and aligns with  
applicable policies.  
55  
The design of the proposed development is sensitive to the residential character  
of the street. The massing of the building is broken up by stepping back the front  
entrances of three units on the east which allows the front façade to appear as two semi-  
detached dwellings. The façade, rooflines and building details are compatible with and  
reflective of the community's character.  
56  
Ms. Anderson noted that the proposed development is in the Residential Character  
Area 2 of the ARP and was identified as an R-M2 zoning district. The site has been re-  
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zoned as M-CGd72 district. She submitted that the proposed development complies with  
the purposed and intent of the ARP and the Bylaw.  
57  
The current site designation of M-CGd72 allows for a density of 72 units per  
hectare. The proposed development is within the density allowed for the site. In addition,  
the height complies with the maximum building height of 12 metres, the required five  
parking stalls are enclosed, and a 2 metres high fence is provided to screen the one  
visitor parking stall from adjacent properties. There is no parking relaxation required for  
the proposed development.  
58  
The proposed development required relaxations on building setbacks, projections  
into setback area, garbage and recycling, soft landscape irrigation and hard landscaping.  
She stated that the relaxation test provided in section 687 (3) (d) of the Municipal  
Government Act (MGA) is whether the proposed development would unduly interfere with  
the amenities of the neighbourhood, or materially interfere with or affect the use,  
enjoyment, or value of neighbouring parcels of land. She submitted that the relaxations  
were reasonable and would not unduly or materially interfere with the use and enjoyment  
of neighbouring parcels of land, or the neighbourhood in general. Furthermore, there is  
no evidence before the Board the back up the issues raised by the appellants.  
59  
Regarding the relaxation of Section 583 of the Bylaw, the decks of units 1 and 2  
of the proposed development project are 2.48 metres into the front setback. Ms.  
Anderson submitted that the decks are part of the key elements that activate the front  
yards and integrate the sidewalks with the units. The decks enliven the street and add  
visual interest to the streetscape.  
60  
Regarding the relaxation on Section 549 of the Bylaw, she noted there are two  
heat pumps and associated cantilevers located in the front setback. Ms. Anderson stated  
that the heat pump was at a low elevation, screened with evergreen shrubs and expected  
to have little visual or other impacts.  
61  
Furthermore, there are upper cantilevers in the proposed development that project  
into the front setback area. She stated that the window projections add visual interest,  
colour, and texture to the front façade of the building.  
62  
Ms. Anderson noted that the site plans indicate waste collection Molok systems  
located in the 1.2 metres west setback. The image on the right of page 546 of the Board  
Report is a visual representation of the Molok above and below grade. She explained  
that the Molok system is a private‐service, semi‐underground waste containment system  
that maximizes storage volume and minimizes the space required for waste collection  
while greatly reducing the visual impact of waste management. There is no evidence to  
suggest this system will unduly or materially interfere with the neighbourhood or  
neighbouring parcels of land.  
63  
Regarding the relaxations on section 550 of the Bylaw, Ms. Anderson noted that  
the applicant had intended to water the landscape manually, however, they were open to  
installing an irrigation system if the board deems it fit.  
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64 Regarding the relaxations on section 551 of the Bylaw, the plans indicate that  
46.04% of the landscaping is hard surfaced. There is no evidence the hard landscaping  
proposed will unduly or materially interfere with the neighbourhood or neighbouring  
parcels of land. She stated that the applicant was open to changes to reduce the  
relaxation of the hard landscaping if the Board deems it fit, such as changing the front  
two decks to be at grade or eliminating the hard landscaping whether deck or patio and  
having it soft landscaped.  
65  
In response to the issues raised by the appellants, Ms. Anderson stated that the  
proposed development is under the 12 metres maximum height of the M-CG district. It is  
2% lower than the eastern neighbour, 21% higher than the western neighbour, and 9%  
higher than the average of the contextual buildings.  
66  
Furthermore, the average front yard of the street is a shallow, well landscaped  
front area with patio interfaces that allow community interactions with residents. She  
pointed out that the building to the east of the proposed development has no front yard,  
no soft landscaping and consists of steps and driveways. She noted that the proposed  
development has a significant side yard amenity space with landscaping and privacy on  
the northeast corner of the proposed development. In addition, the amenity space for  
these units is also provided by the 3rd-floor balconies eliminating the requirement for  
fence/hedging as contemplated by Section 2.4.1.1 of the ARP.  
67  
On the issue of density, she submitted that M-CG is one of the five Low-Density  
Residential Districts that comprise about two-thirds of all Calgary community lands. The  
standard maximum density for M-CG is 111 units per hectare. In Sunnyside, the M-CG  
has been further reduced to 72 units per hectare to reflect the average density of the area  
including single-family homes and the much higher density multi-family apartments. M-  
CG allows 60-70% lot coverage (with 3 coverage relaxations based on built and  
landscaping). The proposed development covers 53.97% of the lot while achieving the  
72 units per hectare density (5 units).  
68  
Ms. Anderson noted that the proposed development has been designed to reduce  
overlooking by the numerous mitigating tactics.  
69  
Ms. Anderson noted that the proposed development meets the requirement for  
parking under the Bylaw. In addition, she pointed out that the on-street parking is  
restricted and that each unit would only be eligible for one parking pass and no visitor  
passes in line with Calgary parking policy.  
70  
She referred to the shadow report on page 333 of the Board Report. The shadow  
study formed part of the decision on the design and location of the proposed  
development. The massing on the rear unit was pushed to the east to reduce the morning  
shadow impact on the neighbour to the west. She pointed out that the existing coniferous  
spruce trees cast significant shadows onto the east parcel. In addition, the south of the  
proposed development was shifted east to allow more morning sunlight on the neighbour  
to the west, while the rear of the building height was reduced to allow more afternoon  
sunlight to the eastern neighbour.  
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APPEAL NO. SDAB2022-0010  
71 Ms. Anderson submitted that many of the concerns of the appellants were with the  
zoning. The Board does not have jurisdiction to re-zone lands and must apply the rules  
as they exist.  
72  
She explained that the proposed development was reviewed under the definition  
of Multi-Residential Development in the Bylaw because it was intended and listed for  
developed areas as opposed to Multi-Residential Minor which is intended for developing  
areas. The proposed development fits under the use and meets all the requirements for  
the use.  
73  
She concluded that the required relaxations meet the test of relaxation under the  
MGA.  
Rebuttal  
The Development Authority  
74  
Ms. Ganczar explained that the definition of Multi-residential Development Minor  
is intended for developing areas and does not apply to developed areas where the  
proposed development is located.  
75  
She stated that the area underneath the decks was never counted in the  
landscape calculation. In addition, the side yard is projected into the west setback area  
by 1.2 metres while Unit 3 is 6.3 metres away from the side property line. In the opinion  
of the Development Authority, the proposed development was designed to address any  
privacy or overlooking issues to the neighbour to the west.  
76  
She noted that none of the units in the proposed development have secondary or  
backyard suites as it is not allowed in the district.  
Appellants  
77  
Mr. Galachiuk stated that Section 35 (d) of the Bylaw provides that the  
Development Authority must consider the compatibility and impact of the proposed  
development on adjacent developments. He stated that the proposed development sets  
a negative precedent in the community.  
78  
He noted that the engagement process between the applicant and community  
members was not honest and transparent. He referred to the HSCA planning committee's  
letter on pages 294-295 of the Board Report and noted that the letter failed to identify the  
development application that was reviewed or the people that attended the meeting. In  
addition, there was no reference or comment on the relaxations that were granted.  
79  
He referred to the letters in opposition to the appeal and pointed out that one writer  
does not reside in the same district as the proposed development while the other was not  
aware of the relaxations that were granted; hence the letters should be disregarded.  
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APPEAL NO. SDAB2022-0010  
80 He noted that the applicants did not provide any evidence of the noise that the  
heat pump and air conditioner will produce. He submitted that the noise from the heat  
pump and air conditioning units will interfere with his enjoyment of his property.  
81  
Mr. Bass raised concerns regarding enforcement of proposed changes if the  
proposed development is allowed.  
82  
Mr. Brindle noted that the proposed development will create pressure on existing  
street parking.  
Applicant team  
83  
Ms. Anderson stated that the proposed development is a positive contribution to  
the community. She noted that the air conditioner for unit 1 can be moved from the front  
to the back of the unit. The air conditioner for Unit 2 can be moved to the east of the  
property over by a sidewalk area.  
Reasons:  
84 The Board reviewed the context of the development having regard to sound planning  
principles and circumstances of the case, and the evidence presented. The Board  
reviewed the Municipal Government Act (MGA), LUB, Hillhurst/Sunnyside Area  
Redevelopment Plan (ARP) and all relevant legislation and policy statements. The Board  
did not give evidentiary weight to prior decisions of this Board relating to earlier proposed  
developments on the site, considering them to be inapplicable to its consideration of this  
proposed development.  
85 The Board finds that the proposed Multi-Residential Development (1 Building) is a  
discretionary use in the M-CGd72 District requiring relaxation of sections 583 and 549 of  
the LUB due to projections into setbacks, and to sections 550 and 551 dealing with  
irrigation and hard landscaping, and to section 60 regarding the first-floor garage and  
storage not following the flood fringe requirements.  
86  
Insofar as the proposed development requires a variance from the requirements  
of each of sections 60,551,550,549 and 548 of the LUB, section 36 of the LUB becomes  
applicable as does section 687(3)(d) of the MGA in the Board’s de novo consideration of  
this proposed development.  
87  
In exercising its discretion, the Development Authority must consider and apply  
sound planning principles outlined in section 35 of the LUB. It must, in considering  
section 36, also determine if the proposed development would unduly interfere with or  
affect the use, enjoyment or value of neighbouring properties. The Board, on appeal,  
steps into the shoes of the Development Authority. The Board, on appeal, is tasked with  
assessing the proposed development based solely on the information before it. This  
information includes the written information consolidated into the Board Report and verbal  
submissions made at the hearing.  
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APPEAL NO. SDAB2022-0010  
88 The proposed development requires relaxation of sections 583 and 589 of the LUB  
to accommodate significant front deck intrusions into setback areas. The Board must be  
satisfied that, as a result of the relaxation, the development will not interfere unduly with  
the amenities of the neighbourhood or materially interfere with the use, enjoyment, or  
value of neighbouring parcels of land. In the case of these relaxations, the Board finds  
that the test is not met and finds that the setback and deck projections are not in keeping  
with the local context and create inappropriate intrusion into the streetscape, negatively  
affecting neighbouring properties. The Board therefore requires that the intrusive front  
decks should be removed, and each shall be replaced with a landing and patio with  
landscaping of at least 36 inches in height, providing a contiguous border and separation  
from the public sidewalk therefore enhancing the privacy of these amenity spaces within  
the confines of the required setback areas, all to the satisfaction of the Development  
Authority.  
89  
The Board determined the heat pumps located in the front setback area will not  
have material impact on the neighbouring properties as they will be at grade, obscured  
and any noise associated with the units will be directed to the public environment. The  
Board determined that the front upper floor cantilevers facing 2 Avenue NW are minor  
and will not have a material impact on the neighbourhood as they are set facing the public  
realm,  
90  
The proposed development requires further relaxation of sections 550 and 551  
relating to landscaping. In the case of these relaxations, the Board finds that the test is  
met regarding the overage of hard landscaping, having heard no convincing evidence of  
negative impact. The Board notes however that by eliminating the decks in the front  
setback as per the preceding paragraph, the hard landscaping relaxation is reduced in  
size. The Board however finds that the relaxation test is not met regarding the need for  
irrigation of soft surface landscaping, having heard no convincing rationale for this  
relaxation. Accordingly, the Board will require compliance with section 550 of the LUB for  
this proposed development.  
91  
The proposed development requires further relaxation of section 60 of the LUB  
relating to the first-floor garage and storage being in the designated flood level. The Board  
agrees that this relaxation is supportable as all electrical equipment will be located about  
the flood level.  
92  
The Board determines there is a fixed barrier on the west side of the visitor parking  
stall as the Molok waste units are fixed in their location and a parking stall with physical  
barriers abutting both sides is required to be 3.1 metres in width per section 122(1.1) of  
the Bylaw yet the visitor stall is 2.884 metres in width. The Board determines this  
relaxation is warranted as the fixed barrier created by the Molok containers is not a solid,  
contiguous surface therefore providing some additional ability to maneuver into the space  
and it exceeds the 2.85 metre width Bylaw requirement for a stall with one physical  
barrier. This relaxation has no negative impact on neighbouring properties. The Board  
further finds the Molok waste management feature enhances the neighbourhood by  
providing common waste storage for all units of the development.  
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APPEAL NO. SDAB2022-0010  
93 The Board finds that the appellants provided insufficient compelling planning  
rationale in support of denying the application with respect to the requested relaxations.  
The appellants have failed to convince the Board that the proposed development with the  
requested relaxations would unduly interfere with the amenities of the neighbourhood or  
materially interfere with or affect the use, value, and enjoyment of neighbouring  
properties. Valuation evidence provided was anecdotal in nature and the Board gave little  
weight to such evidence. Conflicting calculations on various aspects of parcel coverage  
and building design presented by the appellants could not be substantiated and the  
applicant and Development Authority provided further clarification regarding their  
accuracy and how they were derived. Shadow studies provided by the applicant were  
unrefuted.  
94 Based on the evidence, the Board finds that the proposed development, as currently  
described in the approved plans and as modified as above described, is based on sound  
planning, resulting in a development compliant with existing zoning and that that is in  
character with the streetscape and the abutting multi-residential complex to the east and  
the single detached dwelling on the west.  
95  
The development provides generous side setbacks well beyond Bylaw minimums  
for the units within the parcel respecting the privacy of the appellant to the west and  
window placement on all three levels ensures overlooking is limited to what one would  
expect in an inner-city environment.  
96  
The Board notes the proposed development is compliant with respect to onsite  
parking requirements.  
97 The neighbouring property owners have had the opportunity to assess the proposed  
development and the Board notes that the community association expressed support for  
the proposal after several productive interactions with the developer. The Board notes  
that there is no legal requirement for a developer to consult with affected parties directly.  
The Board places no weight on conflicting evidence of community engagement  
processes, finding it to be irrelevant.  
98  
The Board notes that the use of staggered submissions in this appeal was  
thoroughly discussed, canvassed, and agreed to by the parties in the procedural and  
jurisdictional hearing which preceded the hearing on the merits and is consistent with the  
regular practices of this Board. The scheduling of the merit hearing provided ample time  
for all parties to prepare both written and oral submissions and therefore the Board  
ensured fairness for all parties involved with the appeal.  
99  
The Board heard concerns from the appellants and others about increased density  
and related concerns about noise, parking, and privacy. The Board notes that the current  
zoning of M-CGd72 allows for density of 72 units per hectare and the proposed  
development is within the permitted capacity. The Board agrees with the applicant that  
the ARP and MDP support the proposed development and that the proposed  
development meets the intent of the M-CG district. The proposed development will  
provide moderate intensification as envisioned and leverage the existing amenities and  
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FILE NO. DP2021-7313  
APPEAL NO. SDAB2022-0010  
infrastructure of the inner city. The Board notes the proposed development is well below  
the parcel coverage permitted by the Bylaw for this district and is designed so that it  
appears as a Semi-Detached Dwelling. The units are modestly sized but with three  
bedrooms are designed to accommodate families and revitalize the neighbourhood as is  
the intent of the MDP.  
100  
The purpose statement for the district notes that higher numbers of dwelling units  
and traffic generation are to be expected in close proximity to or adjacent to low density  
residential development. Such is the case with this proposed development. The Board  
finds that the landscaping as prescribed will complement the design of the development  
and help screen and buffer elements of the development that may have impacts on  
nearby parcels, as is required.  
101  
The proposed development will add to the range of housing opportunities and  
provide five units visible to the collector street. The design is effective at breaking up the  
massing of the building, providing articulation, varied quality materials and the sloped and  
gabled rooflines and building details are compatible with the neighbouring properties.  
102  
The Board was not persuaded by arguments that the proposed development  
should be considered secondary or backyard suites. The design which includes inserted  
balconies, building features and screening on the upper levels that prevent direct  
overlooking and at grade plantings and fencing will limit overlooking and in place foliage  
will provide further complementary screening.  
103  
The Board, based on the evidence, finds that the proposed development, as  
modified, is sensitive to adjacent development and the amenities of the neighbourhood.  
The appellants have failed to convince the Board that the proposed development would  
negatively impact the use, enjoyment, or value of the neighbouring parcels. The Board  
finds that the development, from a planning perspective, is consistent with the zoning in  
place and accordingly is based on sound planning principles and is appropriate for the  
parcel. Therefore, the application, as modified, warrants approval.  
Conclusion:  
104 For the reasons set out above, the appeal is allowed in part, and the decision of  
the Development Authority is modified as set out above. A revised development permit  
shall be issued.  
______________________________  
Katherine Camarta, Second Vice Chair and Decision Writer  
Subdivision and Development Appeal Board  
Issued on this 22nd day of June 2022.  
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