The Alberta Court of Appeal turned down a request by an Okotoks resident who had sought to have the approval of a multi-family residential complex on McRae Street overturned.
The court sided with the Town of Okotoks against resident Gord White, who took both the Town and the Okotoks Subdivision and Development Appeals Board (SDAB) to court saying both had gone too far in relaxing regulations for a 32-unit multi-family development on McRae Street.
In its seven-page decision, the court ruled last week the Town and appeal board acted appropriately and were within their rights to approve the project and grant several variances to development rules.
In April 2016, the Town’s Municipal Planning Commission (MPC) granted a number of variances, including relaxing rules related to parking, the number of storeys and the amount of land required per unit. These variances were upheld by the SDAB in June 2016.
According to the decision, the case came down to a question of whether significant bylaw variances amount to the de facto rezoning of an area.
The court agreed the Town was within its rights to grant variances to the development if it didn’t unduly interfere with the amenities of a neighbourhood or neighbouring properties.
“At the end of the day, we conclude that the SDAB, in any event, properly exercised its jurisdiction to grant a density variance which, in the case at bar, allowed the development to be denser than developments in other districts,” the decision states.
The site is zoned as Residential Mixed Dwelling (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.
White argued that the R-MD land use rules limited development to 14.5 units per acre, the same as is allowed under R-2 land use rules. White said the result is that the development would have a density of approximately 36.7 units per acre, double what is allowed under the Town’s higher density R-3 land use rules.
White argued the change amounted to the creation of a new land use district. However, the Town countered that the R-MD land use rules don’t prevent the approval of densities that could exceed those allowed under R-3 rules.
The court sided with the Town, stating that land use rules don’t limit R-MD densities to be less than those allowed under R-3 rules.
“The relevant provisions persuade us, as the Town of Okotoks contends, that the minimum area per dwelling unit (the density) is in the discretion of the development authority in instances such as that which came before the SDAB in the instant case,” the decision reads.”
Michael McIntyre, development services director, said the Town looks at the decision as a learning opportunity.
“We don’t treat it as a win or a loss,” he said. “We treat it as we followed the system to our best abilities and integrity, this was the outcome and how can we use this information to inform future policy decisions.”
McIntyre said the timing of the decision is good because the Town is about to start reviewing its Municipal Development Plan this year and the ruling could be useful to guide the process.
“What better time for the community to be engaged in discussions about infill development and residential density and how much flexibility to incorporate in our policies and our land use bylaws to accommodate development,” he said.
With a ruling in its favour, the Town could ask White to pay its legal fees for the case.
McIntyre said the Town hasn’t decided whether it will seek to have White cover its legal costs.
He said the Town doesn’t want to be perceived as making a decision that would discourage people from exercising their right to appeal a decision made by the Town.
White said he paid $30,000 on his appeal and he doesn’t look forward to having to potentially cover the Town’s legal costs.
White said he stands by his concerns and is looking at his options to try to continue the fight against the proposal.
He said his primary concerns remain – density, parking, the size of the project, and the overall impact on the neighbourhood.
White said he doesn’t oppose development in town, but he maintains the R-MD land use rules leave too much room for the Town to allow variances.
“Why do they even bother having guidelines,” he said. “My feeling is the Town made up new rules and they said they were right.”
White also said there are no architectural controls for the area and the building will be in stark contrast to nearby heritage properties.
“Within 65 metres or less there’s half a dozen historic buildings around this project, and this is right in the centre,” he said.
He said the impact it will have on area residents – such as parking, density, lack of green space – was overlooked.
His daughter, Celeste White, collected more than 160 signatures on a petition against the development before it was approved.
She hopes their concerns will be heard as the Town works on new plans to guide development in the downtown area.
“Now it’s up to all of us as citizens to say what’s going on here, why are you not following the guidelines,” said Celeste.
She said the issue is connected to plans to redevelop Okotoks’ downtown area and the proposed building doesn’t fit with what is being considered as part of a new master plan for the area. She said it’s not a visually appealing building and doesn’t offer any green space for residents.
