Understanding governing legislation
This overview is to provide parties appearing before the SDAB with information on the requirements of the SDAB as set out in the SDAB's enabling legislation. The procedures and summaries provided are intended to supplement the legislation and to provide a lay person overview of the legislative requirements and should not be construed as legal advice. In this overview, where any procedure is in conflict with the legislation, the legislation takes precedence.
The Calgary SDAB is an independant tribunal whose jurisdiction flows from the Municipal Government Act (MGA). The SDAB has a duty to act fairly and observe the principles of natural justice and procedural fairness. These principles include the right to a public hearing, a duty to be fair, the right for all affected parties to be heard, the right to an adjournment if the Board determines it is merited, and the right to legal counsel, etc.
The SDAB is a quasi-judicial tribunal established in accordance with sections 627 to 630 of the Municipal Government Act R.S.A. 2000, c. M-26 of the Province of Alberta and Bylaw 25P95, as amended, being a Bylaw of The City of Calgary to establish a Subdivision and Development Appeal Board. Board members are appointed for either one-year or two-year terms by City Council and the SDAB shall be composed of a minimum of fifteen citizen members.
Section 629 of the MGA speaks to appeal board evidence. In general, in rendering its decision the SDAB may accept any oral or written evidence that it considers proper, whether admissible in a court of law or not, and is not bound by the laws of evidence applicable to judicial proceedings. The Board makes a record of its proceedings, which may be in the form of a summary of the evidence presented at the hearing. Typical evidence considered by the SDAB includes, but is not limited to, applicable legislative documents, such as Land Use Bylaw 1P2007, the Municipal Government Act and other planning policy documents.
In addition, the SDAB will consider the materials upon which the Development and/or the Subdivision Authority made its decision and other relevant planning evidence submitted by the appellants, the applicants and/or affected persons at the hearing.
Development appeals are addressed under sections 683 to 687 of the Municipal Government Act. The following summary does not provide an explanation of all of the development appeal sections and focuses on those sections that are most frequently dealt with by the SDAB.
Section 685 speaks to the grounds for appeal and who has the right to submit an appeal. Section 686(1) pertains to the time frame in which a notice of appeal can be submitted. The MGA makes reference to the term "affected person" with regard to grounds for appeal, who can file an appeal and who must be notified of the SDAB's hearing. The term "affected person" is not defined in the Municipal Government Act and it is up to the SDAB to determine whom they deem to be "affected". The Board determines affected persons on a case-by-case basis. For example, an affected person could be someone who feels the enjoyment, use or value of their property may be affected by the proposed development. The onus is on the person to show they are affected by the development.
All appeals are advertised in the paper and any party who feels they will be affected by the proposed development has the right to appear before the Board and explain why they are affected. The Board will then make a determination as to whether that person is an "affected person" with respect to the proposed development.
The SDAB is required to hold a hearing within 30 days of receiving a notice of appeal in accordance with section 686(2) of the Municipal Government Act. The SDAB is also required under section 686(3) of the MGA to provide notice of the hearing, in writing, to the appellant, the Development Authority, those owner(s) required to be notified under the Land Use Bylaw and those persons the SDAB considers to be affected by the appeal.
Pursuant to section 686(4) of the Municipal Government Act, before the commencement of the hearing, the Board must make available for public inspection all relevant documents and materials respecting the appeal. This information report includes the application for the development permit, the decision, the notice of appeal and any order issued under section 645 of the Municipal Government Act. The report is made available to the public and the SDAB one week prior to the SDAB hearing.
Section 687(1) of the Municipal Government Act directs who the SDAB must hear from at the hearing:
- the appelant, or his/her representative;
- the Development Authority;
- any person who was given notice of the hearing, or his/her representative; and
- any person who claims to be affected by the order, decision or permit, or his/her representative, that the SDAB agrees to hear.
In accordance with section 687(2) of the Municipal Government Act, the SDAB must issue a written decision, together with reasons for the decision, within 15 days of concluding the hearing.
In determining an appeal, the SDAB is bound by section 687(3) of the Municipal Government Act. The SDAB has the authority to confirm, revoke or vary an order, decision or development permit or conditions of approval. The SDAB can substitute an order, decision or permit with its own decision.
Subdivision appeals are addressed under sections 678 to 682 of the Municipal Government Act. The following summary does not provide an explanation of all of the subdivision appeal sections and focuses on those sections that are most frequently dealt with by the SDAB.
Section 678 of the MGA speaks to who can submit an appeal, the time frame in which a notice of appeal can be submitted and what the notice of appeal must contain. Subdivision decisions are generally appealed by the applicant of the subdivision application, but can be appealed by a government department that was circulated the application or a school authority, where the application involves a municipal reserve and/or school reserve. Community associations and neighbouring residents cannot file an appeal against a subdivision application decision.
The SDAB is required under section 679 of the Municipal Government Act to provide written notice of the hearing. Section 680(1) of the MGA directs who the SDAB must hear from at the hearing.
In accordance with section 680(3) of the Municipal Government Act, the SDAB must hold a hearing within 30 days of receiving a notice of appeal and give a written decision, together with reasons for the decision, within 15 days of concluding the hearing.
Stop orders, commonly referred to as notices of orders or enforcement orders, are issued to property owners when a Development Authority finds that a development or use of the land in question contravenes the rules of Land Use Bylaw 1P2007.
An order can be appealed under section 685 of the Municipal Government Act. If an order is appealed, the SDAB's jurisdiction is limited to determining whether or not the order was correctly issued. The SDAB may not allow a use to occur if it is not a listed use in the appropriate land use designation. With respect to orders issued as the result of a contravention of a rule of the Land Use Bylaw, the SDAB may not allow the continuance of the contravention without an issued development permit relaxing the result. However, the Board has the authority to grant a stay of the order (extension of time) or it may modify the order if it deems necessary.
The information contained herein is intended for information purposes only and should not be construed as legal advice. For certainty, you should consult the Municipal Government Act and other related statutes and regulations.