This was a successful application by property owner for leave to appeal the decision of the Town of Okotoks Subdivision and Development Appeal Board approving a development permit for a daycare adjacent to the property of the Applicant

Administrative law – Decisions of administrative tribunals – Municipal boards – Municipalities – By-laws – Planning and zoning – Variance orders – Appeals – Judicial review

Young v. Okotoks, [2014] A.J. No. 931, 2014 ABCA 275, Alberta Court of Appeal, September 2, 2014, B.K. O’Ferrall J.A.

The Applicant, Jeff Young, sought leave to appeal a decision of the Town of Okotoks Subdivision and Development Appeal Board (the “Appeal Board”). The appeal judge can grant leave to appeal if the appeal involves a question of law that merits a further appeal and if the appeal has a reasonable chance of success.

Mr. Young sought to appeal a decision of the Appeal Board that upheld a decision of the Town of Okotoks development authority (the “Development Authority”) that approved the development of a daycare facility in a direct control district. Mr. Young owned a home adjacent to the proposed daycare and his home was located in a residential land use district. Mr. Young sought to appeal the decision on the following two questions of law:

1. Did the Appeal Board err in failing to follow the directions of the town’s council as expressed in its direct control district bylaws? and
2. Did the Appeal Board err in purporting to grant a variance of the direction of council as expressed in the Town’s direct control district bylaws?

Although Mr. Young’s home and the proposed daycare facility site were in separate land use districts, there was a provision in the direct control rules which provided that the development regulations of the Residential Small Lot Detached District were to be used as a “guide” by the Development Authority if a development permit application was made to develop a direct control district site as a daycare facility. Those regulations provided that all onside parking be at the rear of lots in the district and that such onsite parking be accessed only from rear lanes. The specific variance involved permitting the daycare facility to have a parking lot on the side of the facility, instead of to the back of the facility, and thereby increasing the number of children, parents and staff the facility could accommodate.

In the Appeal Board’s decision, the Appeal Board acknowledged that by permitting the daycare facility to have parking at the side of their facility, they were not following the land use requirement that parking be at the rear. In allowing this variance, the Appeal Board considered the parking requirements applicable to the residential district were only guidelines to be considered in allowing development permits for the daycare facility.

The Alberta Court of Appeal (the “Court”) granted leave to appeal on both questions of law posed, namely that the Appeal Board erred in failing to follow the Okotoks town council’s directions as expressed in its direct control district bylaws and erred in granting a variance of those bylaws. The Court held that it was not clear whether or not the Appeal Board in fact used the bylaw’s parking requirements as a guide, and if it did so, how the rear parking requirements in the bylaws actually guided the Appeal Board’s decision to permit the daycare facility to have parking to the side of their facility.

To stay current with the new case law and emerging legal issues in this area, subscribe here.