Appellants victorious over setback change


A group of Black Diamond residents are claiming victory after learning their appeal of a multi-family development in town was upheld.

The Intermunicipal Subdivision and Development Appeal Board sided with Carl Fisher and Brendan Kelly on their appeal of the Mountain View development after a Jan. 4 hearing.

Plans for the project included 10 semi-detached villas and three 41-unit apartment buildings on five acres of land beside Oilfields General Hospital.

Fisher, who lives across the street from the proposed development, said the board’s decision is good news for taxpayers living in the area.

“I think it was a fair decision,” he said. “We are quite happy we had a fair hearing.”

In its nine-page decision, the board stated its concern about the proximity of the apartments to the top of a nearby hill.

Last fall, Black Diamond town council approved a slope stability assessment by a geotechnical engineer. The assessment supported building the three-apartment complex seven metres from the top edge of the hill and a required 30-metre setback in the Town’s land use bylaw was reduced to seven metres.

The appeal board did not agree with easing the setback.

“…Without sufficient evidence to satisfy the Board the stability of the slope will be unaffected, the Board is not prepared to vary the setback requirement in the Land Use Bylaw,” the board’s report states. “Reduced slope stability will have an unacceptable detrimental effect on neighbouring parcels of land by threatening the security of their land and buildings.”

The board also expressed concern about the age of the information relied on in the slope stability assessment after learning the site hadn’t been visited since the last development proposal 10 years prior.

It was also concerned about the size and weight of the development due to expanding clay in the ground and drainage.

The report stated that the apartments, being seven metres from the top edge of the hill, could intensify the negative impacts development would have on the use and enjoyment of people living nearby.

“Reconfiguration of the proposed development to reduce or eliminate the required variance would also address these impacts on neighbouring properties,” it read.

Gary McCarroll, a retired geological engineer who lives in the area, also spoke against the development on Jan. 4, saying construction would destabilize the hill due to expanding clay in the ground, which caused millions of dollars worth of damage to the hospital’s foundation after it was built in the 1980s.

Clem Lau, with Clem Lau Architect Designers, argued that construction would occur below the clay, and that measures would be put in place to improve stability of the land.

“We will have a swale at the edge of the property line along the north side as well as storm ponding all around the site so all the rainwater will be collected in a storage tank and then eventually drain off to the storm pipe of the municipality,” he had said. “Otherwise, heavy rain will soak into the ground and eventually the slope may fail without this drainage system.”

According to the board’s report, it considered other concerns raised by Fisher, Kelly and other residents who spoke at the hearing, including Kelly’s worry that the apartments will cast shadows on his and neighbours’ properties, impede privacy with balconies overlooking yards and devalue homes.

The report states that while its primary concern is the proximity of the apartments to the top edge of the hill and the structural integrity of the slope, it recognized that the variance would also result in the apartments being considerably closer to neighbouring dwellings and impact the use and enjoyment of people in their yards with the reduction to seven metres from 30.

“Reconfigurement of the proposed development to reduce or eliminate the required variance would also address these impacts on neighbouring properties,” the report stated.

Audrey Cerkvenac, who also opposes the proposed development, said she is relieved with the board’s decision.

“We are very pleased that the appeal board listened, they heard, they decided and they agreed with our concerns,” she said. “We were very impressed at the depth of the searching questions that were posed to the appellants and the town planning officer and the developer’s lawyer. We know that he can appeal so we just have to wait and see.”

Fisher, Kelly and many of the residents who spoke at the Jan. 4 appeal are members of the Black Diamond Development Corporation, which was formed last year in response to the Mountain View Development.

Black Diamond Mayor Ruth Goodwin said the developer can choose to redesign the project, make a new application, walk away from the project or appeal the board’s decision within 30 days.

Goodwin said the appeal board’s decision was “due process.”

“There are situations that you end up with people who disagree with decisions of council and the town,” she said. “We will wait to see what happens.”

Developer Todd Gow, of Circle G Vitality Communities in Calgary, said the company is consulting with its lawyers, architect and engineers before deciding how to proceed.

“The project will go forward in one way or another, we are just determining what the best course of action is right now, either going back to the appeal or bringing our buildings (within the 30 metres),” he said. “We are doing a cost analysis.”


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