Tungland v Edmonton (City), 2017 ABQB 246

Court of Queen’s Bench of Alberta Citation: Tungland v Edmonton (City), 2017 ABQB 246 Date: 20170405 Docket: 1603 02149 Registry: Edmonton Between: Roar Tungland, Marilyn Tungland, Ken Walker, Mirjana Vuksanovi, Radovan Vuksanovic, Diane Hanna, Ted Hanna, Lyle Abraham, Kathryn Abraham, Oliver Schneider, Coleen Schneider, William Andrew Grieve, Barbara Patricia Ogilvie Grieve, Gerard Tertzakian, Justin Balko, Stephanie Balko, Tracy Mccloskey, Phil Mcavoy, Prathavan Venkatraman, Brian Levang, Gordon Taylor, Kirby Gudmundson, Ron Coyle, Gay Coyle, Rob Reynolds, Beth Reynolds, James Yacyshyn, Maria Yacyshyn, Robert Miller, Perveen Amendolia, and Philip Lister Applicants - and - Subdivision Authority of the City of Edmonton and the City of Edmonton Respondents - and - David Etcheverry and Nicole Etcheverry Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.M.

Ross

_______________________________________________________ Introduction [ 1 ] The Applicants apply for judicial review, seeking to quash the decision of the Subdivision Authority of the City of Edmonton [Subdivision Authority, and the City], issued on August 4, 2015, which approved the subdivision into two lots of a parcel of land municipally described as 128 Fairway Drive, Edmonton, Alberta [Property]. [ 2 ] The Respondents, David and Nicole Etcheverry [the Etcheverrys], currently own the Property.

They filed affidavits and written submissions in advance of the judicial review application, and made oral submissions at the hearing. At the commencement of the hearing, and with the consent of parties to this application, the Etcheverrys were formally joined in the application as additional respondents. Background Facts [ 3 ] In February 2015, the Subdivision Authority received an application to subdivide the Property, which has a total width of 27.44 metres (90 feet) into two lots with a width of 13.72 metres (45 feet) each.

On March 13, 2015, the Subdivision Authority refused the February 2015 application [Refusal Decision].

In its reasons for refusal, the Subdivision Authority indicated, inter alia , that the (i) “proposal will result in site widths and areas that are uncharacteristically small when compared to properties on the block face,” (ii) “proposed subdivision is located within the Mature Neighbourhood Overlay as prescribed by City of Edmonton Zoning Bylaw 12800 ,” (iii) “proposed subdivision would not comply with the intent and spirit of the Mature Neighbourhood Overlay,” and (iv) “[a]lthough it may be possible to construct a home on the proposed lots, the Subdivision Authority contends that the lots do not fit the immediate neighbourhood.

The fundamental issue is the increase in density, and the resulting negative impact on adjacent properties.” [ 4 ] On April 13, 2015, the City passed an amendment to its Zoning Bylaw (Bylaw 17116 – A Bylaw to amend Bylaw 12800) that reduced the minimum lot width applicable to the RFI Zone (in which the Property is located) from 12.0 metres (39.4 feet) to 7.5 metres (25 feet).

The amendment also provided that a Lot zoned RF1 could only be subdivided “into more than two lots” if the proposed subdivision “has a Site Width deemed by the Subdivision Authority to be in character with Lots on the same block.” [ 5 ] In July 2015, the Subdivision Authority received another application, from a different party, to subdivide the Property into two lots: one with a width of 15.20 metres (50 feet), and the other with a width of 12.23 metres (40 feet).

This July 2015 application for subdivision was approved by the Subdivision Authority in its decision of August 4, 2015, splitting the Property into two [Approval Decision]. The Approval Decision made no reference to the Refusal Decision of March 13, 2015. [ 6 ] On September 15, 2015, after the subdivision approval was granted, and subsequent to the expiration of the statutory appeal period for subdivision approval, the Etcheverrys purchased the Property. [ 7 ] On January 20, 2016, the within judicial review application was filed by the Applicants.

The Etcheverrys were not served with the Originating Notice of the judicial review application, but received a communication from counsel for the Applicants inquiring if they would like to be added to the action. They declined the offer at the time. [ 8 ] On June 1, 2016, the Etcheverrys’ application for a Development permit on each of the new lots was approved by the Subdivision Authority. They removed the pre-existing home on the Property and commenced construction of two new homes located on the split lots.

David Etcheverry deposed that he became aware of the registration of a Certificate of Lis Pendens on the Property sometime in August 2016. [ 9 ] The majority of the Applicants own property in the Westbrook Estates neighbourhood where the subdivided Property is located. Two applicant households – Justin and Stephanie Balko, and James and Maria Yacyshyn – own property adjacent to the Property. Affidavit Evidence [ 10 ] Affidavits were filed by the Applicant James Yacyshyn and Respondent David Etcheverry.

While the use of affidavits on judicial review is exceptional, this Court has discretion to allow relevant affidavit evidence: Alberta Rules of Court , r 3.22(d); Yuill v Alberta (Workers’ Compensation Appeals Commission) , 2016 ABQB 369 at para 60 , 2016 CarswellAlta 1282 [ Yuill ]; White v Alberta (Workers’ Compensation Board, Appeals Commission) , 2006 ABQB 359 at para 35 , 400 AR 183 [ White ]. [ 11 ] No objection is taken to the Etcheverry Affidavits, and I find they are relevant as they were not parties to the proceedings before the Subdivision Authority, but are now affected as subsequent purchasers of the Property.

The evidence provided may be relevant to the exercise of the Court’s discretion regarding whether to grant judicial review. [ 12 ] The Yacyshyn Affidavit contains evidence that may be relevant to standing (addresses of the Applicants in Exhibit “A”), and to the estoppel argument (documents regarding the Refusal Decision in Exhibit “B”), as well as relevant to reasons for the decision in circumstances where the Subdivision Authority was not required to and did not give reasons (Exhibits “B,” and “D”).

There is no objection to admissibility of these aspects of the evidence, and as they may be relevant, I find them admissible: Yuill at para 60 .

[13] However, the Respondent City objects to portions of Exhibit “C” to the Yacyshyn Affidavit on the grounds that they areemail correspondence between a City councilor and a City employee – neither of whom was the decision-maker – and neighbourhoodresidents. The City contends that these emails neither form part of the record nor speak for the decision-maker.

While I find that much ofthe email correspondence is irrelevant and of no weight – for example, opinions of the City councilor and employee regarding the impactof the amended bylaw and the reasons for the Approval Decision – there are aspects of the email correspondence that may have somerelevance. For instance, there is an email that indicates when the Applicants became aware of the Approval Decision. Therefore, I willnot strike out Exhibit “C” but will give no weight to the portions objected to by the City.

Standing [14] Section 678(1) of the Municipal Government Act, RSA 2000, c M-26 [MGA] states that the decision of a subdivision authorityon an application for subdivision approval may be appealed by (

a) the applicant for the approval, (

b) a Government department, if theapplication is required by the subdivision and development regulations to be referred to that department, (

c) the council of themunicipality in which the land to be subdivided is located if the council, a designated officer of the municipality or the municipalplanning commission of the municipality is not the subdivision authority, or (

d) a school board with respect to certain specified issues. [15] As such, the Applicants did not have standing to appeal the Approval Decision to the Subdivision and Development AppealBoard. Based on this, the Applicants brought the within judicial review application. In this way, the application is like that brought inDavidson v 1167648 Alberta Ltd, 2007 ABCA 364 at paras 1-2, 22, 422 AR 322 [Davidson], where the Alberta Court of Appeal leftopen the issue of standing. [16] The Applicants include not only adjacent property owners, but also other residents in the community.

A number of theApplicants live considerable distances away, up to two kilometres away in another neighbourhood: Respondent Etcheverry’s Affidavit,sworn January 26, 2017, Tab1, Exhibit “E.” At the hearing, the Applicants did not take the position that all Applicants have common lawstanding to bring the judicial review application, but submitted that the adjacent property owners do have common law standing.

I willassume without deciding that other neighbours do not have standing and address only the position of the adjacent property owners since,as the Applicants point out, as long as at least one Applicant has standing, the application should proceed. [17] The position of adjacent property owners is different from other neighbours in relation to an application for subdivisionapproval submitted to a subdivision authority under the MGA. Adjacent property owners are defined in s 653(4.4) of the MGA, and atleast two of the applicant households – the Yacyshyns and the Balkos – come within that definition.

Adjacent property owners areentitled to notice of a subdivision approval application (MGA, s 653(4)). Further, adjacent property owners may make writtensubmissions (MGA, s 653(5)), and the subdivision authority is required to take those submissions into account (MGA, s 653(6)). [18] However, adjacent property owners are not included in the list of persons who may appeal a subdivision decision (MGA, s678(1)).

This is in contrast to the statutory appeal for development permits, in which an affected party has a right of appeal (MGA, s685(2)). [19] The fact that there exists a statutory appeal regime under the MGA does not remove this Court’s jurisdiction to hear anapplication for judicial review, although it may be relevant to the Court’s discretion regarding whether to exercise that jurisdiction:Constable A v Edmonton (Police Service), 2017 ABCA 38 paras 11-15; Dunsmuir v New Brunswick, 2008 SCC 9 at para 31, [2008] 1SCR 190; Judicature Act, RSA 2000 c J-2, s 28.1. [20] Davidson indicates that the legislative determination that neighbours or adjacent landowners have no right of appeal insubdivision approval situations does not “automatically” give them standing to seek judicial review.

Equally, their exclusion from thestatutory appeal does not automatically bar their standing for purposes of judicial review: Frederick A Laux, Planning Law and Practicein Alberta, 3rd ed (Edmonton: Juriliber, 2002) at 13.2(1). [21] A similar issue arose in Bengston v Alberta (Natural Resources Conservation Board), 2003 ABCA 173, 330 AR 81[Bengston].

A neighbouring property owner did not have standing as a “directly affected party” under the Agricultural OperationsPractices Act, RSA 200, c A-7 to participate in proceedings before the Natural Resources Conservation Board relating to development ofpig farming facility.

This did not preclude him “from obtaining standing on an alternate basis for the purpose of judicial review”:Bengston at para 28, citing Alberta v Canadian Wheat Board, (FC), [1998] 2 FC 156 at para 26, 2 Admin LR (3d)187 (TD), aff’d (1998), 234 N.R. 74 (FCA) – (“the words ‘directly affected’ in subsection 18.1(1) of the Federal Court Act … allows theCourt discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which theapplicant holds justifies status being granted. (This assumes there is a justiciable issue and no other effective and practical means ofgetting the issue before the Courts.)); Friends of the Island Inc v Canada (Minister of Public Works), (FC), [1993] 2FC 229 at para 80, 102 DLR (4th) 696 (TD), varied on other grounds (1995), 191 NR 241 (FCA), leave to appeal to SCC refused [1996]SCCA No 80 (QL). [22] In Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 at para 9, 406 AR 104[Alberta Liquor Store], Slatter J (as he then was) set out the test for common law standing on a judicial review application: The courts have always weighed a number of factors in determining whether a party is “aggrieved.” An important factor is “therelationship between the applicant and the challenged decision”, or how directly the challenged administrative act will affect the legally-recognized interests of the applicant.

Thus, if the applicant’s property rights, economic rights, or legally recognized personal interests(such as the applicant’s liberty) will be affected by the administrative decision, the applicant will likely have standing. So, for example, ifthe applicant’s license has been revoked, resulting in a direct impact on the interests of the applicant, the applicant is bound to be grantedstanding.

There is no finite list of interests that the law will recognize in determining issues of standing, but business, professional,employment and property interests have traditionally been recognized. [Emphasis added.] [23] The test of whether an applicant is aggrieved requires consideration of whether he or she is differently affected than the

general public: Bengston at paras 19-20, 28 . In that case, neighbours who relied on a creek in the vicinity of the approved pig farm were found to have “nothing unique in [their] circumstances, other than proximity, to establish a comparable special interest … which would distinguish them from other members of the public: para 20.

However, a neighbor who was operating a commercial retreat and campground on his land which could be adversely affected by the development of the pig farm was found to have a “special grievance” and, therefore, to have standing for the purpose of judicial review: para 28. [ 24 ] The Applicants who are adjacent property owners claim they are differently affected than the general public. The nature of the special effect on them is described in the letters they submitted to the Subdivision Authority.

The Balkos wrote that “Subdividing the [Property] means that there will now be two properties looking in to our back yard. This will limit our privacy. [The] new homes will encroach that much closer to my property [and additional] development will hamper morning sunlight that comes into our yard as well.” In conclusion, the Balkos said the “[n]egative effects that directly affect our property include invasion of our existing privacy, impacts to sunlight and wind patterns, [and] potential effects to groundwater flow” (Record of Proceedings, Vol 1/48, 50).

The Yacyshyns also indicated that they “have a number of environmental concerns such as light penetration, shadowing, changes to wind, water runoff, and drainage issues” (Record of Proceedings, Vol 1/55). [ 25 ] The effects on adjacent property owners of having two homes on the Property, including invasion of existing privacy, and potential issues with sunlight penetration, water runoff and drainage, do give adjacent property owners a special grievance distinct from other members of the public.

Their complaint is not simply about effects on the neighbourhood, which are shared with other members of the public; they are concerned about direct impacts on the use and enjoyment of their own property.

While their interests are not commercial, as in Bengston , or property rights in a strict sense, there is no “finite list of interests that the law will recognize in determining issues of standing”: Alberta Liquor Store at para 9 . [ 26 ] The City and the Etcheverrys submit that adjacent property owners should not have standing as subdivision is essentially just “lines on a map.” They argue that the real impact on adjacent property owners arises from the development of the Property, and they have standing in that context. However, this argument ignores the impact of subdivision on development.

The nature of permitted developments is affected by subdivision approval. In this case, the permitted developments are two houses instead of one. Further, where subsequent development applications comply with bylaws, the permits must issue ( MGA , s 642). That is what happened in this case. [ 27 ] In the result, I conclude that the adjacent property owners who are Applicants in the present application have standing at common law. Statutory Provisions [ 28 ]

Section 7 of the MGA authorizes a municipality to pass bylaws for municipal purposes. In addition to the general jurisdiction of the municipal council to enact bylaws, the MGA , s 8 states: Without restricting

section 7 , a council may in a bylaw passed under this Division (

a) regulate or prohibit; (

b) deal with any development, activity, industry, business or thing in different ways, divide each of them into classes and deal with each class in different ways; (

c) provide for a system of licences, permits or approvals, including any or all of the following … (

v) setting out the conditions that must be met before a licence, permit or approval is granted or renewed, the nature of the conditions and who may impose them … [ 29 ]

Section 617 of the MGA , which stipulates the purpose of

Part 17 – Planning and Development – reads: The purpose of this Part and the regulations and bylaws under this

Part is to provide means whereby plans and related matters may be prepared and adopted (

a) to achieve the orderly, economical and beneficial development, use of land and patterns of human settlement, and (

b) to maintain and improve the quality of the physical environment within which patterns of human settlement are situated in Alberta, without infringing on the rights of individuals for any public interest except to the extent that is necessary for the overall greater public interest. [ 30 ]

Section 654 of the MGA provides that:

(1) A subdivision authority must not approve an application for subdivision approval unless (

a) the land that is proposed to be subdivided is, in the opinion of the subdivision authority, suitable for the purpose for which the subdivision is intended, (

b) the proposed subdivision conforms to the provisions of any statutory plan and, subject to subsection (2), any land use bylaw that affects the land proposed to be subdivided, (

c) the proposed subdivision complies with this Part and the regulations under this Part, and (

d) all outstanding property taxes on the land proposed to be subdivided have been paid to the municipality where the land is located or

arrangements satisfactory to the municipality have been made for their payment pursuant to

Part 10.

(2) A subdivision authority may approve an application for subdivision approval even though the proposed subdivision does not comply with the land use bylaw if, in its opinion , (

a) the proposed subdivision would not (

i) unduly interfere with the amenities of the neighbourhood, or (ii) materially interfere with or affect the use, enjoyment or value of neighbouring parcels of land, and (

b) the proposed subdivision conforms with the use prescribed for that land in the land use bylaw.

(3) A subdivision authority may approve or refuse an application for subdivision approval. [ Emphasis added ]. [ 31 ] I note that the effect of the MGA , s 654 is that a subdivision authority always has discretion to refuse an application for subdivision. [ 32 ]

Section 7 of the Subdivision and Development Regulation , Alta Reg 43/2002 [ Regulation ], prescribes the factors that a subdivision authority must consider as follows: In making a decision as to whether to approve an application for subdivision, the subdivision authority must consider , with respect to the land that is the subject of the application, (

a) its topography, (

b) its soil characteristics, (

c) storm water collection and disposal, (

d) any potential for the flooding, subsidence or erosion of the land, (

e) its accessibility to a road, (

f) the availability and adequacy of a water supply, sewage disposal system and solid waste disposal, (

g) in the case of land not serviced by a licensed water distribution and wastewater collection system, whether the proposed subdivision boundaries, lot sizes and building sites comply with the requirements of the Private Sewage Disposal Systems Regulation (AR 229/97) in respect of lot size and distances between property lines, buildings, water sources and private sewage disposal systems as identified in section 4(4) (

b) and (c), (

h) the use of land in the vicinity of the land that is the subject of the application, and (

i) any other matters that it considers necessary to determine whether the land that is the subject of the application is suitable for the purpose for which the subdivision is intended . [ Emphasis added ]. [ 33 ] The old (now replaced) provision of Bylaw 16271,

section 110.4(1) stated as follows: Site regulations for Single Detached Housing and Duplex Housing: a. the minimum Site area shall be 360.8 m 2 ; b. the minimum Site Width shall be 12.0 m; c. the minimum Site depth shall be 30.0 m [ 34 ] The current provisions of Bylaw 17116 (that amended Edmonton Zoning Bylaw 12800 ) read: Bylaw 12800, as amended, The Edmonton Zoning Bylaw is further amended as follows: [A]dd the following to subsection 41.1: 3.

The Subdivision Authority may not approve the subdivision of a Lot zoned RF1, as it existed on March 16, 2015 into more than two lots, notwithstanding the Site Width in the RF1 Zone. Subdivision into more than two Lots may only be approved where the proposed subdivision: … b. has a Site Width deemed by the Subdivision Authority to be in character with Lots on the same block. … 4. (

h) delete the content of subsection 110.4(1) and replace with:

Site regulations for Single Detached Housing: a. the minimum Site area shall be 250.8 m 2 ; b. the minimum Site Width shall be 7.6 m; c. the minimum Site depth shall be 30.0 m. [ 35 ]

Section 814.1 of Bylaw 17116, which deals with the general purpose of the “Mature Neighbourhood Overlay” provides: The purpose of this Overlay is to ensure that new low density development in Edmonton’s mature residential neighbourhoods is sensitive in scale to existing development, maintains the traditional character and pedestrian-friendly design of the streetscape, ensures privacy and sunlight penetration on adjacent properties and provides opportunity for discussion between applicants and neighbouring affected parties when a development proposes to vary the Overlay regulations. [Emphasis added.] Grounds [ 36 ] The Applicants’ grounds for judicial review are that the Subdivision Authority: (

a) failed to provide reasons for the subdivision approval; (

b) is estopped from making a decision that is inconsistent with its previous Refusal Decision; (

c) failed to consider relevant all relevant factors; and (

d) fettered its discretion by adopting an inflexible policy. [ 37 ] The Respondents contend that the Approval Decision is reasonable in all respects, and further that granting judicial review would be unfair and inequitable in the circumstances of this case. Standard of Review [ 38 ] The parties are largely agreed, and case law supports, that a reasonableness standard applies.

As stated in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd , 2016 SCC 47 at paras 22-23 , 402 DLR (4th) 236 [ Capilano ]: Unless the jurisprudence has already settled the applicable standard of review (Dunsmuir v New Brunswick, 2008 SCC 9 at para 62 , [2008] 1 SCR 190 [Dunsmuir]), the reviewing court should begin by considering whether the issue involves the

interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness (Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 , [2015] 2 S.C.R. 3, at para. 46 ). This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts.

A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [ 39 ] The Applicants note that the Alberta Court of Appeal in Sihota v Edmonton (City) , 2013 ABCA 43 at para 6 , 542 AR 229 [ Sihota ], applied a correctness standard to the decision of the Subdivision and Development Appeal Board [SDAB] on questions of law regarding the

interpretation of the MGA and bylaws, citing Cameron Corp v Edmonton (Subdivision and Development Appeal Board) , 2012 ABCA 254 at paras 4-5 , [2012] CarswellAlta 1485. [ 40 ] Sihota also applied correctness to issue estoppel: Ibid at para 7.

However, I note that the application of the correctness standard in Sihota was in the context of a statutory appeal from the SDAB directly to the Alberta Court of Appeal; and significantly, the Alberta Court of Appeal also observed in the case that “[c]onsideration by a tribunal of common law doctrines like issue estoppel is not necessarily reviewed for correctness: Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] 3 SCR 616 (where the remedial use of a different form of estoppel was at play)”: para 6. [ 41 ] Sihota does not settle the applicable standard of review in this case.

I agree with the parties that the presumptive reasonableness standard applies to the issues of relevant considerations, fettering discretion and estoppel, and related

interpretation of the MGA and bylaws that are raised in this case. [ 42 ] A reasonable decision must fall “within a range of possible, acceptable outcomes.” Reasonableness is also concerned with “the existence of justification, transparency and intelligibility within the decision-making process”: Capilano at para 36 , citing Dunsmuir at para 47 . Analysis Failure to provide reasons [ 43 ] The first ground raised by the Applicants is that the Subdivision Authority did not give reasons.

That choice by the Subdivision Authority is expressly contemplated by the statute where the authority approves an application for subdivision ( MGA , s 656; Davidson at para 19 ). The Applicant accordingly elected not to advance this ground.

[ 44 ] As the Subdivision Authority was not required to and did not give reasons, the Court must consider reasons “which could be offered” in support of the decision: Capilano at para 38 , citing Dunsmuir at para 48 , quoting David Dyzenhaus, “The Politics of Defence: Judicial Review and Democracy,” in M Taggart, ed, The Province of Administrative Law (1997), 279 at 286.

In considering potential reasons, I have had reference to evidence included in the Record of Proceedings and in the Yacyshyn Affidavit. [ 45 ] The Record of Proceedings contains file notes provided by Stuart Carlyle, a subdivision officer, who reviewed the file and prepared it for Blair McDowell, the Subdivision Authority. The notes made no reference to the Mature Neighbourhood Overlay, or whether the width of the proposed lots would be consistent with the neighbourhood (Record of Proceedings, Vol 1/29).

This is in contrast with notes relating to the prior subdivision application, where the subdivision officer recommended refusal of the application as not conforming to the Mature Neighbourhood Overlay, and not characteristic of the neighbourhood (Record of Proceedings, Vol 1/3). [ 46 ] A Report to the Executive Committee of City Council, dated Dec 7, 2015, titled “Subdivision Process and Relationship to the Mature Neighbourhood Overlay” [the Report] captures the practice of the City on subdivision applications at the time of the Approval Decision (Exhibit “D” to the Yacyshyn Affidavit). [ 47 ] Affidavit evidence cannot be introduced on judicial review when it is “intended to alter or supplement the factual record used by the tribunal to decide the issue on the merits”: White at para 35 .

In my view, reference to the Report is not precluded by this principle. The Report does not deal specifically with the subject application.

It discusses the approach of the Subdivision Authority in a general way. [ 48 ] The Report contains the following statements: Edmonton’s Infill Roadmap … was the result of an ongoing conversation about city growth and change to enable greater opportunities for infill. …One key opportunity to better support incremental change in our existing communities is to allow the subdivision of (RF1) Single Detached Residential Zone lots (Action 15). … On April 13, 2015, City Council approved amendments to Zoning Bylaw 12800 to allow the creation of 7.6 metre (25 feet) wide lots in the (RF1) Single Detached Residential Zone.

Subdivision into more than two lots may occur … where the Subdivision Authority deems the site width to be in character with lots on the same block. During the debate over the amendments in the spring of 2015, some neighbourhoods requested special exemptions from the amendments.

City Council made a decision to apply amendments to Zoning Bylaw 12800 across all neighbourhoods.… Relationship of the Mature Neighbourhood Overlay to Subdivision The Mature Neighbourhood Overlay was initially adopted because the mature neighbourhoods in Edmonton were seeing suburban style homes being built that, in the opinion of some community members, did not fit within the context of the existing development. These new homes often included features such as front attached garages and were built to the maximum allowable height and lot coverage of the zone.

The new ‘suburban style’ houses were perceived as being at odds with the established pattern of mature neighbourhoods, which included features such as streets with treed boulevards, lanes, rear detached garages, front porches, and lower building heights. As a response to these concerns, the Mature Neighbourhood Overlay was developed and included in Zoning Bylaw 12800 in 2001.… The Mature Neighbourhood Overlay is designed to guide development at the development permit stage.… Subdivision Process

Section 654 of the MGA states that the Subdivision Authority must not approve an application for subdivision unless the land is suitable for the purpose for which the subdivision is intended and the proposed subdivision conforms to both any applicable statutory plan and land use bylaw…. The practice of the Subdivision Authority before April 13, 2015, was to assess the suitability of a lot for subdivision based on the lot widths of other parcels within the immediate area and character was evaluated on a case-by-case basis based on the lot widths along the block.

As authority for this practice, the Subdivision Authority relied on section 654(1) of the [ MGA ] and the general purpose statement in the Mature Neighbourhood Overlay to adjudicate on applications. As a result of the April 13, 2015 amendments, which were aligned with Action 15 of the Infill Roadmap , the need for an assessment of character to influence subdivision decisions was explicitly moved to those subdivision applications that would create more than two lots.

Thus character was redefined as ‘one subdivision creating not more than two lots.’ The decision to limit subdivision to two lots was deliberately made … to prevent the subdivision of large lots into three or four narrow lots.

Making this decision confirmed that when the Subdivision Authority considers lot splits creating three to four lots, the issue of character would be an important consideration, while lot splitting into two lots was deemed appropriate for city-wide application. … [T]he subdivision of (RF1) Single Detached Residential Zone lots is a city-wide opportunity to enable broader single-family housing options in our mature and established communities, provide more opportunities for incremental small-scale infill development, support the social sustainability of communities, and effectively utilize existing infrastructure.… As a result of these amendments, Administration advances the subdivision of (RF1) Single Detached Residential Zone property that complies with the new lot size regulations, including those within the boundaries of the Mature Neighbourhood Overlay.

Zoning Bylaw 12800 directs Administration to consider surrounding lot width characteristics only when considering subdivision of a property into more than two lots … The practice of supporting subdivisions from one lot into two within (RF1) Single Detached Residential Zone ensures predictability in decision making. [ 49 ] When considered in context, including the file notes contained in the Record of Proceedings, it is my view that these excerpts from the Report provide reasons “which could be offered” in support of the Approval Decision: Capilano at para 38 .

Issue estoppel [ 50 ] While the reasonableness standard applies to this issue, the parties’ submissions focused on the Alberta Court of Appeal determination in Davidson that issue estoppel does not apply to a second subdivision application. Effectively, the Respondents submit that the Subdivision Authority was correct when it did not apply, or consider, the Refusal Decision. [ 51 ] The Court of Appeal said ( Davidson at paras 13-18 ): 13 The similarity of the basis for the 2005 and 2006 decisions is neither here nor there. The 2006 application conformed to the Regulation and the MGA .

Calgary was required to make a decision: 26365 Alberta Ltd. v. Banff (Town) , (2003) 346 A.R. 236, [2003] A.J. No. 1019 (QL), 2003 ABCA 244 at paras. 8 to 14 . The MGA sets out the jurisdiction and criteria for such applications. As pointed out in 26365 Alberta Ltd. by Wittman J.A.: 14 On a second application, the obligations of the MPC and DAB are triggered. Those obligations include an assessment of the evidence and submissions, and a consideration of what they had done on the first application.

Otherwise a system of immutable restrictive covenants despite changing conditions or consents would be created: Condominium Plan 8310407 v. Calgary (City) , [1995] A.J. No. 1033 (Alta. C.A.), at para. 15 . 14 The respondents contend that the decision of the chambers judge only operates to bar a later application if it is essentially the same as the earlier application. Nothing in the MGA suggests that the Legislature intended such a barrier or such an amorphous cloud on the title of landowners.

In addition, the protean word "essentially" in the decision of the chambers judge reveals that such a common law barrier would be unmanageably vague. 15 If the Legislature intended to provide neighbouring landowners with a "reasonable expectation" that decisions would stand for a specified period, it could have done so by language extending s. 656(3) of the MGA . The Legislature did not do so. ... 16 In other words, the principles governing the making of subdivision approval decisions are that which are specified by the statute. The statute may displace the common law doctrine of functus officio .

For that matter, a statute may also displace the common law principle of issue estoppel which seems to be what the respondents are really raising in bar of the 2006 decision. Realistically, it is the absence of three conditions from the 2005 decision that the respondents find objectionable in the 2006 decision, not that there is a 2006 decision as such. 17 Moreover, as pointed out in Nanaimo v. Rascal Trucking Ltd. , [2000] 1 S.C.R. 342, [2000] S.C.J.

No. 14 (QL), 2000 SCC 13 , at para. 35 , there is the "reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest". Decisions, such as subdivision approval, do not necessarily fit the adjudicative model of "Plaintiff versus Defendant" upon which principles such as finality of litigation largely rest. The chambers judge erred in importing into her evaluation of the 2006 decision a consideration that the 2005 decision was being re-visited and the outcome changed. This was not a situation of historical revisionism.

This is not a matter of functus officio . Calgary simply did what the MGA provides. The chambers judge read into the MGA a bar to applications which is not in the MGA . 18 The chambers judge was also in error to read into the MGA an entitlement on the part of the respondent to "reasonable expectations" of finality. This notion resembles the concept of issue estoppel. [ 52 ] The Applicants attempt to distinguish this case from Davidson on the basis that they do not rely on estoppel per se , but submit that the prior decision is relevant to their arguments regarding relevant considerations and fettering discretion.

They submit that the failure by the Subdivision Authority to address issues addressed in the Refusal Decision (the effect of the Mature Neighbourhood Overlay and whether the lot width is in accordance with the character of the neighbourhood) indicates that relevant considerations were not taken into account in the Approval Decision. I reject this argument. The Applicants cannot bootstrap their argument regarding relevant considerations by suggesting that the prior decision is determinative. That would amount to applying the doctrine of estoppel, which is precluded by Davidson .

The relationship of the prior decision to the fettering discretion argument is the same – the prior decision is not determinative. [ 53 ] The Applicants also relied on Sihota , which applied issue estoppel in relation to a planning decision. In that case, the appellant obtained a development permit in 2000, to operate a post office facility on a property that was zoned CNC Neighborhood Convenience Commercial Zone. This zoning permitted use of the premises for Professional, Financial and Office Support Services, but did not allow General Industrial Use. The appellant’s permit was not challenged.

In 2011, the appellant applied to construct a mezzanine addition to the premises. The SDAB denied the 2011 application on the ground the postal facility did not qualify as a Professional, Financial and Office Support Service. The SDAB found that the postal facility was a General Industrial Use. On appeal, the Alberta Court of Appeal held that the doctrine of issue estoppel operated to prevent the relitigation of any issue that was essential to the previous decision.

The Court noted that since it was essential to the issuance of the 2000 permit for the post office facility that it qualified as a Professional, Financial and Office Support Service, the doctrine of issue estoppel prevented the City from asserting an inconsistent position in respect of the 2011 application. [ 54 ] Sihota is distinguishable from Davidson . Sihota dealt with a development permit as opposed to subdivision approval application, which was the subject in Davidson .

More importantly, the Alberta Court of Appeal in Sihota at para 15 noted that: In planning matters, it is generally fair for the doctrine of issue estoppel to be applied against both owners and municipalities . Owners cannot simply ignore limitations on permits, or complete denials of permission to develop ( subject to the ability to reapply for a refused permit after a waiting period has passed : s. 640(5)). Likewise, once a municipality has authorized a development, it cannot later revoke or ignore that permission.

As noted, the planning provisions of the statute involve a balancing of the rights of the public and landowners. It would be unfair, and economically untenable, to permit significant investments in one year, and then allow the municipality to declare the intended use unlawful in a later year. [ Emphasis added ].

[ 55 ] Davidson and the present case come within the qualification expressly noted in Sihota . In both cases, owners reapplied for a refused approval or permit after a waiting period had passed. [ 56 ] I conclude that the doctrine of issue estoppel does not apply. Relevant considerations [ 57 ] The Applicants’ third ground for review alleges that the Subdivision Authority failed to consider relevant considerations. They argue that the Subdivision Authority failed to apply s 654 of the MGA and ss 7(

h) and (

i) of the Regulation .

Section 654 of the MGA states that a subdivision authority must not approve an application for subdivision unless the land is suitable for the purpose for which the subdivision is intended. Subsections 7 (

h) and (

i) of the Regulation provide that a s ubdivision authority must consider “the use of land in the vicinity of the land that is the subject of the application” and other matters “necessary to determine whether the land that is the subject of the application is suitable for the purpose for which the subdivision is intended.” The Applicants argue that under these provisions, the Subdivision Authority was required to consider the width of the subdivided lots in comparison with others in the neighbourhood and the Mature Neighbourhood Overlay. [ 58 ] In my assessment of reasons that could be offered by the Subdivision Authority in the present matter, I referred to the Report to the Executive Committee of City Council, which described the practice of the City’s subdivision authority to subdivision approval applications at the time of the Approval Decision.

The Report refers to s 654 of the MGA , and discusses the Mature Neighbourhood Overlay. It provides a line of reasoning process that supports the conclusion that neither the width of the subdivided lots in comparison with others in the neighbourhood, nor the Mature Neighbourhood Overlay, were relevant factors in relation to the Approval Decision. The amended bylaw provides that subdivision of an existing lot into more than two lots may occur only if the Subdivision Authority deems the site width to be in character with lots on the same block.

There is no similar restriction on subdivision of an existing lot into two lots. Where an existing lot is subdivided into two lots, and the resulting lot widths comply with the bylaw, and the purpose of the subdivided lots is unchanged (single family detached homes), the Subdivision Authority could reasonably conclude that the subdivided land is suitable for the intended purpose. The Mature Neighbourhood Overlay, which relates to development as opposed to subdivision, does not change this line of reasoning.

The policy concerns discussed in the Report support the view that the conclusion reached falls within a range of possible, acceptable outcomes. [ 59 ] The Subdivision Authority could also reasonably conclude that the subdivision application was consistent with the “use of the land in the vicinity” ( Regulation , s 7(h)) as use continued to be single family residential. Further, the Subdivision Authority could reasonably determine that whether the new lots were similar in width to other lots in the area was not a matter that it considered necessary under s 7(

i) of the Regulation where an existing lot is split in two. This conclusion is reasonable given that: (

a) the Subdivision Authority was not bound by the Refusal Decision; (

b) the amendment to Edmonton Zoning Bylaw 12800 requires consideration of site width in relation to lots on the same block only where three or more lots are proposed for subdivision; (

c) the Mature Neighbourhood Overlay does not apply to subdivision approval; and (

d) it is within the City’s authority to pass bylaws in order to implement its role in guiding development in the municipality.

Fettering discretion [ 60 ] In Alberta (Director of Assured Income for the Severely Handicapped) v Januario , 2013 ABQB 677 at paras 35-37 , 574 AR 331, Brown J (as he then was) held that the issue of fettering discretion is properly subsumed within reasonableness review. “[A] finding that an administrative tribunal has fettered its discretion in deciding a matter militates against a finding of reasonableness.” [ 61 ] The Etcheverrys’ Brief (at para 2) suggests that approval of a subdivision application is automatic if the proposal is to split a lot into two and if the widths of the resulting lots comply with the minimum widths in the bylaw.

The Applicants submit that this amounts to a fettering of discretion by the Subdivision Authority, a determination that it will not exercise the discretion that it has under s 653(3) of the MGA to refuse a subdivision application. [ 62 ] The City submits that there is no proof of fettering of discretion. As an administrative decision-maker, the Subdivision Authority should be afforded the benefit of the presumption of regularity, given that it has no obligation to provide written reasons under the MGA : Campbell v Edmonton (City) , 2014 ABQB 742 , 603 AR 87.

There is nothing in the evidence to suggest that the Subdivision Authority considered itself bound by any policy when it issued the Approval Decision. It should be presumed that the Subdivision Authority considered required factors and factors that it reasonably determined to be relevant in relation to the Approval Decision. It should also be presumed that the Subdivision Authority was fully aware of, and properly exercising, its discretion under the MGA . There is nothing in the evidence to contradict these presumptions. [ 63 ] I agree with the City.

The argument in the Etcheverrys’ Brief is not based on evidence. There is no evidence to support the Applicants’ claim of fettering of discretion. [ 64 ] I conclude that the Applicants have failed to establish any of the alleged grounds for review. The application for judicial review is dismissed. Discretion to refuse judicial review [ 65 ] Given my conclusion on the merits of the application, it is not necessary to address the submissions regarding the Court’s

discretion to refuse judicial review. Conclusion [66] The application for judicial review is dismissed. [67] The Etcheverrys seek solicitor-client costs. They rely on the chronology set out in the Etcheverry Affidavits in support of thisclaim: i. On September 15, 2015, the Etcheverry purchased the Property, on which conditional subdivision approval had been granted butnot registered. The time for appeal of the Approval Decision had passed. The subdivision approval was a material factor in their purchaseof the Property.

At the time that they purchased, there were no claims registered against the title to the Property. ii. On February 1, 2016, the Etcheverrys received by registered mail the Originating Notice and supporting Affidavit in relation tothe judicial review application. A covering letter from counsel for the Applicants stated: “At this point, you are not named as a party tothe application. If you wish to be added as a party to the application, please have your legal counsel contact me.” iii. Mr.

Etcheverry deposed that he was not represented at the time, and did not understand that his property rights could be affectedor that he should seek legal advice. He believed this was a dispute between the City and Applicants iv. On February 10, 2016, a Certificate of Lis Pendens was filed against the Property. The Etcheverrys were not notified of this bythe Applicants or the Land Titles Office, and were unaware of it. v. On March 2, 2016, the subdivision plan was registered and certificates of title for the new subdivided lots issued. Each of thenew titles was subject to the Certificate of Lis Pendens. vi.

On June 1, 2016, building permits were issued, and the Etcheverrys proceeded with demolition of the existing home.Construction of new homes on the subdivided lots commenced in the summer of 2016. At this time, the homes are partially completed(framed and enclosed, with windows installed). vii. The Etcheverrys became aware of the Certificate of Lis Pendens in August 2016, when they were unable to get financing or findbuyers for the subdivided lots. [68] There were no violations of procedural requirements on either side of this matter.

The Applicants brought the judicial reviewapplication within the 6 month time limit in the Rules of Court. There was no requirement to include the Etcheverrys as parties or toserve them with the Certificate of Lis Pendens. The Applicants did not bring an injunction application to prevent construction, but again,there was no requirement that they do so, and it is unclear whether such an application would have been successful. [69] The Etchverrys relied on a valid subdivision approval when they bought the Property, and on valid building permits whenthey commenced construction.

They were aware of the judicial review application before the subdivision was registered, buildingpermits obtained, and construction commenced. Still, they cannot in my view be regarded as authors of their own misfortune. They reliedon the Approval Decision when they purchased the Property, before any action was taken by the Applicants. Their subsequent decisionto commence construction was taken relying on valid permits and with no proceedings commenced against them. [70] The circumstances are unfortunate, and have caused financial hardship for the Etcheverrys.

However, in my view there is noclear fault on either side. Neither side violated procedural rules. There was nothing improper in the course of the litigation itself. TheEtcheverrys sought interim relief – in applications to summarily dismiss the judicial review application and to discharge the Certificate ofLis Pendens – but they were unsuccessful.

Over a year passed between the commencement of the judicial review application and thehearing, but this was not due to the conduct of the parties, but simply the availability of Court time. [71] In my view these circumstances do not demonstrate conduct on the part of the Applicants that would justify an order forsolicitor-client costs: Gibbons Estate, 2011 ABCA 46 at para 14, 513 AR 69; Steeves v English, 2004 ABCA 195 at para 21, 6 RFL(6th) 125, citing, Jackson v Trimac Industries Ltd (1993), (AB KB), 138 AR 161 at 172, 8 Alta LR (3d) 403 (AltaQB). [72] Both the City and the Etcheverrys are entitled to costs as successful parties, under Column 1 of

Schedule C: Tariff ofRecoverable Fees in the Alberta Rules of Court: Alberta (Minister of Municipal Affairs) v Telus Communications Inc, 2003 ABCA 260paras 5-8, 22 Alta LR (4th) 1; Saskatchewan Power Corporation v Alberta (Utilities Commission), 2015 ABCA 281 at para 18, 607 AR29. Heard on the 9th day of February, 2017. Dated at the City of Edmonton, Alberta this 5th day of April, 2017.

J.M. Ross J.C.Q.B.A. Appearances: Janice A Agrios, QC Kennedy Agrios LLP for the Applicants Michael S Gunther City of Edmonton - Law Branch for the Respondents Slader Oviatt Oviatt Law for the Respondents, David Etcheverry and Nicole Etcheverry