A panel of three provincial judges will rule on whether the Town of Okotoks and the local Subdivision and Development Appeals Board (SDAB) were in error when approving a multi-family complex in 2016.
The Alberta Court of Appeal heard arguments on Dec. 7 in Calgary on a case launched by Okotoks resident Gordon White who argued the Town and SDAB went too far when approving the development at 103 McRae St.
In April 2016, the project’s developer was granted a number of variances to development rules for the 32-unit attached housing development. These included relaxing rules related to parking, the number of storeys and the amount of land required per unit. These variances were upheld by the Okotoks Subdivision and Development Appeal Board in June 2016.
Several area residents opposed the development. After the decision Okotokian Gord White, who owns properties near the site, took the Town and the board to court.
During last week’s appeal court hearing, White’s lawyer Robert Homersham argued the SDAB and Town overstepped their boundaries.
Homersham said variances to Town planning rules granted for the development are excessive.
“The variance degree is so large, you’ve effectively created a new land use district,” he said, adding only town council has the authority to do this.
The question comes down to one of land-use rules and density of housing on the site.
The site is zoned as Residential Mixed Dwelling, or R-MD. Under R-MD land-use rules, attached housing, as proposed for McRae Street, requires a minimum of 279 square metres of land for each dwelling unit. This rule was relaxed to require only 110.4 square metres, a 60 per cent reduction.
This effectively increased the density for the site, said Homersham.
Without the changes, he said the density for the site would have been around 14.5 units per acre. However, the changes brought it closer to 37.5 units per acre. This density is higher than what is allowed under R-3 multi-family zoning in town, said Homersham, whereas he argued the land use rules for R-MD areas are closer to those allowed in lower density R-2 areas.
Homersham also said other variances, such as relaxing height rules to allow three storeys and permitting tandem parking, also went too far. While provincial legislation allows subdivision appeal boards latitude when making decisions, Homersham argued they should only be able to make modest changes. He said he would like to see the courts set a standard.
Lawyers for the Town and the SDAB say the decision was within the letter of the Town’s bylaws and land use rules. The Town’s lawyer Jennifer Sykes said the SDAB decision did not deal with density. She explained that there has to be a specified area for each parcel and town council gave direction that parcel sizes can be varied.
“It’s not the number of dwelling units relaxed, it’s the area of the parcel,” said Sykes.
In terms of the number of homes allowed, she said land use rules only state attached housing must have a minimum of three dwelling units. In the case of the building’s height, she said the increase is the smallest amount possible for the McRae project. In allowing three storeys compared to two, Sykes said it does amount to a 50 per cent increase, but it’s only one more floor. As well, she said the building would still be under the maximum allowed height.
“Was that a minor relaxation or was it not?” asked Sykes.
She said appeal boards have the ability to relax planning rules for particular development proposals, but it’s not unlimited. Sykes said they need to consider a variety of factors, such as parking or impact on surrounding neighbourhoods.
“It’s an exercise in discretion,” she said.
Sykes said the court shouldn’t set limits on the ability of boards to make decisions purely based on numbers or percentages. As well, she said there is no reason to say that what is allowed in one particular land use district results in placing any limits on another district.
In response to Sykes’ presentation, Homersham said the size of the housing parcels on a particular property relates directly to housing density.
Chris Davis, lawyer for the SDAB, said the proposed development complies with the land use rules.
“Our position is the board did not exceed its jurisdiction,” he said.
Davis said it’s within the appeal board’s jurisdiction to vary elements in proposed development plans and these powers aren’t limited by specific numbers or percentages.
